Issue 32 April 2006 - A Snapshot of Contemporary Developments Seeking to make Human Rights Matter in our Changing Times
UN Human Rights Council
Despite opposition from the USA, on March 15, the General Assembly overwhelmingly voted to create a new Human Rights Council to replace the heavily criticised UN Human Rights Commission, following months of negotiations. The new Council, which will have 47 members, will sit all year round and as a subsidiary body of the UN's general assembly will have a higher status and greater accountability than the existing Commission. The first elections are planned for May 9, and the first session will take place on June 19. Louise Arbour, the UN High Commissioner for Human Rights called the establishment of the United Nations Human Rights Council "a historic opportunity to improve the protection and promotion of fundamental freedoms of people around the world".
In a statement she went on to say: "the decision of the General Assembly to create the Council is momentous. It responds to the hope that the global community could come together and create a strong institution at the heart of the international human rights system". Mrs Arbour said the Council was more than a "new and improved" Commission on Human Rights, the body it is replacing. She recalled that, in addition to retaining some of the best elements of the Commission, such as the system of independent investigators and the broad participation of civil society, the new body boasted some significant features, including that candidates for membership would have to make commitments on human rights; elected members would be first in line for scrutiny under a universal periodic review of their human rights records; and members that committed gross and systematic violations of human rights could be suspended. Members would also commit to cooperate with the Council and its various mechanisms. The way members of the Council are to be elected also represented a major improvement over the Commission, the High Commissioner continued. Election to the Council would require an absolute majority of UN member States: of the 191 members, at least 96 must support a state's membership by secret ballot. This threshold was much higher than the 28 or fewer votes that could get a country membership in the Commission, and would allow countries to block the election of egregious rights violators. But the High Commissioner also cautioned against complacency. ''Adoption of the text is extremely important, but it is only the beginning", she said. "Fulfilling the promise of the Council will require a change of culture as much as institutional transformation. Countries must demonstrate the political will to put the defense of human rights above narrow interests. Human rights are neither a weapon nor a shield. They are the birthright of all people everywhere. If we lose sight of this fundamental fact, all the work to create the council and reaffirm the central role of human rights will have been wasted".
UN Report into the situation of detainees at Guantanamo Bay
February 15, 2006 saw the publication of a Joint Report submitted by five holders of mandates of special procedures of the Commission on Human Rights who had been jointly following the situation of detainees held at the United States Naval Base at Guantanamo Bay since June 2004. The conclusions and recommendations of the Rapporteurs as set out in the final section of the report were as follows:
"Conclusions
International human rights law is applicable to the analysis of the situation of detainees in Guantanamo Bay. Indeed, human rights law applies at all times, even during situations of emergency and armed conflicts. The war on terror, as such, does not constitute an armed conflict for the purposes of the applicability of international humanitarian law. The United States of America has not notified to the Secretary-General of the United Nations or other States parties to the treaties any official derogation from the International Covenant on Civil and Political Rights or any other international human rights treaty to which it is a party.
The persons held at Guantanamo Bay are entitled to challenge the legality of their detention before a judicial body in accordance with article 9 of ICCPR, and to obtain release if detention is found to lack a proper legal basis. This right is currently being violated, and the continuing detention of all persons held at Guantanamo Bay amounts to arbitrary detention in violation of article 9 of ICCPR.
The executive branch of the United States Government operates as judge, prosecutor and defence counsel of the Guantanamo Bay detainees: this constitutes serious violations of various guarantees of the right to a fair trial before an independent tribunal as provided for by article 14 of the ICCPR.
Attempts by the United States Administration to redefine 'torture' in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorized and unauthorized interrogation techniques over the last years is particularly alarming.
The interrogation techniques authorized by the Department of Defense, particularly if used simultaneously, amount to degrading treatment in violation of article 7 of ICCPR and article 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amounted to torture as defined in article 1 of the Convention. Furthermore, the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10 (1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.
The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force- feeding of detainees on hunger strike must be assessed as amounting to torture as defined in article 1 of the Convention against Torture.
The practice of rendition of persons to countries where there is a substantial risk of torture, such as in the case of Mr. AI Qadasi, amounts to a violation of the principle of non-refoulement and is contrary to article 3 of the Convention against Torture and Article 7 of ICCPR.
The lack of any impartial investigation into allegations of torture and ill-treatment and the resulting impunity of the perpetrators amount to a violation of articles 12 and 13 of the Convention against Torture.
There are reliable indications that, in different circumstances, persons detained in the Guantanamo Bay. detention facilities have been victims of violations of the right to freedom of religion or belief, contrary to article 18 of ICCPR and the 1981 Declaration. It is of particular concern that some of these violations have even been authorized by the authorities. In addition, some interrogation techniques are based on religious discrimination and are aimed at offending the religious feelings of detainees.
The totality of the conditions of their confinement at Guantanamo Bay constitute a right-to-health violation because they derive from a breach of duty and have resulted in profound deterioration of the mental health of many detainees.
There are also serious concerns about the alleged violations of ethical standards by health professionals at Guantanamo Bay and the effect that such violations have on the quality of health care, including mental health care, the detainees are receiving.
The treatment of the detainees and the conditions of their confinement has led to prolonged hunger strikes. The force-feeding of competent detainees violates the right to health as well as the ethical duties of any health professionals who may be involved.
Recommendations
Terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in relevant international law. Accordingly, the United States Government should either expeditiously bring all Guantanamo Bay detainees to trial, in compliance with articles 9(3) and 14 of ICCPR, or release them without further delay. Consideration should also be given to trying suspected terrorists before a competent international tribunal.
The United States Government should close the Guantanamo Bay detention facilities without further delay. Until the closure, and possible transfer of detainees to pre-trial detention facilities on United States territory, the Government should refrain from any practice amounting to torture or cruel, inhuman or degrading treatment or punishment, discrimination on the basis of religion, and violations of the rights to health and freedom of religion. In particular, all special interrogation techniques authorized by the Department of Defense should immediately be revoked.
The United States Government should refrain from expelling, returning, extraditing or rendering Guantanamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured.
The United States Government should ensure that every detainee has the right to make a complaint regarding his treatment and to have it dealt with promptly and, if requested, confidentially. If necessary, complaints may be lodged on behalf of the detainee or by his legal representative or family.
The United States Government should ensure that all allegations of torture or cruel, inhuman or degrading treatment or punishment are thoroughly investigated by an independent authority, and that all persons found to have perpetrated, ordered, tolerated or condoned such practices, up to the highest level of military and political command, are brought to justice.
The United States Government should ensure that all victims of torture or cruel, inhuman or degrading treatment or punishment are provided with fair and adequate compensation, in accordance with article 14 of the Convention against Torture, including the means for as full a rehabilitation as possible.
The United States Government should provide the personnel of detention facilities with adequate training, in order to ensure that they know that it is their duty to respect international human rights standards for the treatment of persons in detention, including the right to freedom of religion, and to enhance their sensitivity of cultural issues.
The United States Government should revise the United States Department of Defense Medical Program Principles to be consistent with the United Nations Principles of Medical Ethics. The United States Government should ensure that the authorities in Guantanamo Bay do not force-feed any detainee who is capable of forming a rational judgement and is aware of the consequences of refusing food. The United States Government should invite independent health professionals to monitor hunger strikers in a manner consistent with international ethical standards, throughout the hunger strike. All five mandate holders should be granted full and unrestricted access to the Guantanamo Bay facilities, including private interviews with detainees."
The release of this report was welcomed throughout the world. The UK government responded that it did consider Guantanamo to be an "anomaly" and the report strengthened constitutional and human rights opposition within the US.
Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine
On January 17, 2006,John Dugard, the Special Rapporteur of the Commission on Human Rights reported on the situation of human rights in the Palestinian territories occupied since 1967:
'The present report focuses upon military incursions into the Gaza Strip, the demolition of houses, the violations of human rights and humanitarian law arising from the construction of the Wall and the pervasiveness of restrictions on freedom of movement. In the past year, the Israel Defence Forces (ID F) have carried out intensified military incursions into the Gaza Strip. This has been interpreted as a show of force on the part of Israel so that it cannot later be said that it had withdrawn unilaterally from the territory in weakness. In the course of these incursions, Israel has engaged in a massive and wanton destruction of property. Bulldozers have destroyed homes in a purposeless manner and have savagely dug up roads, including electricity, sewage and water lines. In Operation Rainbow, from 18 to May 24,2004,43 persons were killed and a total of167 buildings were destroyed or rendered uninhabitable in Rafah. These buildings housed 379 families (2,066 individuals).
These demolitions occurred during one of the worst months in Rafah's recent history. During the month of May, 298 buildings housing 710 families (3,800 individuals) were demolished. In October the IDF carried out an assault on the refugee camp of Jabaliya, in response to the killing of two Israeli children in Sderot by Qassam rockets. One hundred and fourteen persons were killed and 431 injured. Many of the victims were civilians and 34 children were killed and 170 wounded. Ninety-one homes were demolished and 101 seriously damaged, affecting 1,500 people. The demolition of houses in Rafah, Jabaliya and other parts of Gaza probably qualify as war crimes in terms of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention). Israel has announced that it will withdraw unilaterally from Gaza. Israel intends to portray this as the end of the military occupation of Gaza, with the result that it will no longer be subject to the Fourth Geneva Convention in respect of Gaza. In reality, however, Israel does not plan to relinquish its grasp on the Gaza Strip. It plans to retain ultimate control over Gaza by controlling its borders, territorial sea and airspace. Consequently, it will in law remain an Occupying Power still subject to obligations under the Fourth Geneva Convention. The Wall that Israel is presently constructing within the Palestinian territory was held to be contrary to international law by the International Court of Justice in its advisory opinion of 9 July 2004. The Court held that Israel is under an obligation to discontinue building the Wall and to dismantle it forthwith. It dismissed a number of legal arguments raised by Israel relating to the applicability of humanitarian law and human rights law. In particular, it held that settlements are unlawful. A week before the International Court of Justice rendered its advisory opinion, the High Court of Israel gave a ruling on a 40- kilometre strip of the Wall in which it held that while Israel as the Occupying Power had the right to construct the Wall to ensure security, substantial sections of the Wall imposed undue hardships on Palestinians and had to be rerouted. Israel has not complied with the advisory opinion of the International Court of Justice. Instead, it has continued with the construction of the Wall. Israel claims that the purpose of the Wall is to secure Israel from terrorist attacks and that terrorist attacks inside Israel have dropped by over 80 per cent as a result of the construction of the Wall. There is, however, no compelling evidence that suicide bombers could not have been as effectively prevented from entering Israel if the Wall had been built along the Green line (the accepted border between Israel and Palestine) or within the Israeli side of the Green line. The following are more convincing explanations for the construction of the Wall:
- The incorporation of settlers within Israel;
- The seizure of Palestinian land;
- The encouragement to Palestinians to leave their lands and homes by making life intolerable for them.
The course of the Wall indicates clearly that its purpose is to incorporate as many settlers as possible into Israel. This is borne out by the fact that some 80 per cent of settlers in the West Bank will be included on the Israeli side of the Wall. Despite the fact that the International Court of Justice has unanimously held that settlements are unlawful, settlement expansion has substantially increased in the past year. This is prohibited by the International Court of Justice and cannot be reconciled with the decision of the Israeli High Court itself. A further purpose of the Wall is to expand Israel's territory. Rich agricultural land and water resources along the Green line have been incorporated into Israel. In recent months, Israel has manifested its territorial ambitions in the Jerusalem area. The Wall is currently being built around an expanded East Jerusalem to incorporate some 247,000 settlers in 12 settlements and some 249,000 Palestinians within the boundaries of the Wall. It must be recalled that Israel's 1980 annexation of East Jerusalem is unlawful and has been declared' of no legal validity' by the Security Council in its resolution 476 (1980). The construction of the Wall in East Jerusalem makes no sense from a security perspective because in many instances it will divide Palestinian communities. Moreover, it will have serious implications for Palestinians living in and near to East Jerusalem. First, it threatens to deprive some 60,000 Palestinians with Jerusalem residence rights of such rights if they happen to find themselves on the West Bank side of the Wall. Secondly, it will make contact between Palestinians and Palestinian institutions situated on different sides of the Wall hazardous and complicated. Thirdly, it will prohibit over 100,000 Palestinians in neighbourhoods in the West Bank who depend on facilities in East Jerusalem, including hospitals, universities, schools, employment and markets for agricultural goods, from entering East Jerusalem.
A third purpose of the Wall is to compel Palestinian residents living between the Wall and the Green line and adjacent to the Wall, but separated from their land by the Wall, to leave their homes and start a new life elsewhere in the West Bank, by making life intolerable for them. Restrictions on freedom of movement in the 'Closed Zone' between the Wall and the Green line and the separation of farmers from their land will be principally responsible for forcing Palestinians to move. The Israeli High Court declared that certain sections of the Wall should not be built where they caused substantial hardship to Palestinians. Logically, this ruling is applicable to sections of the Wall that have already been built However, the Government of Israel has indicated that it will not honour its own High Court's ruling in respect of the 200-kilometre stretch of the Wall that has already been built. Freedom of movement is severely curtailed in the West Bank and Gaza. The inhabitants of Gaza are effectively imprisoned by a combination of wall, fence and sea. Moreover, within Gaza freedom of movement is severely restricted by roadblocks that effectively divide the small territory. The inhabitants of the West Bank are subjected to a system of curfews and check.-points that deny freedom of movement, and they need permits to travel from one city to another. Permits are arbitrarily withheld and seldom granted for private vehicles. Several hundred military checkpoints control the lives of Palestinians. Palestinians are denied access to many roads that are reserved primarily for the use of settlers. The Wall in the Jerusalem area threatens to become a nightmare, as tens of thousands of Palestinians will be forced to cross at one checkpoint each day, namely at Qalandiya. Finally, as already indicated, a permit system governs the lives of residents between the Wall and the Green Line and those adjacent to the Wall. This permit system is operated in an arbitrary and capricious manner. The restrictions on freedom of movement imposed by the Israeli authorities on Palestinians resemble the notorious 'pass laws' of apartheid South Africa. These pass laws were administered in a humiliating manner, but uniformly. Israel's laws governing freedom of movement are likewise administered in a humiliating manner, but they are characterized by arbitrariness and caprice. In its advisory opinion, which has been approved by the General Assembly, the International Court of Justice indicated that there are consequences of the Wall for States other than Israel. States are reminded of their obligation not to recognize the illegal situation resulting from the construction of the Wall and not to render aid or assistance in maintaining the situation created by the construction of the Wall. Israel's defiance of international law poses a threat not only to the international legal order but to the international order itself. This is no time for appeasement on the part of the international community."
Interim report of the Special Representative of the Secretary-General on the issue of human rights and trans-national corporations and other business enterprises
Human rights are no longer merely the business of governments: many multinational corporations and other businesses are being urged by their stakeholders to recognise and accept that they too have a responsibility for the protection of human rights. In Resolution 2005/69, the Commission on Human Rights requested the Secretary-General to appoint a Special Representative on the issue of human rights and transnational corporations and other business enterprises, for an initial period of two years. The interim and final reports to be produced by the Special Representative have the following mandate:
"(a) To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights;
(b) To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation;
(c) To research and clarify the implications for transnational corporations and other business enterprises of concepts such as 'complicity' and 'sphere of influence';
(d) To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises; and
(e)To compile a compendium of best practices of States and transnational corporations and other business enterprises."
The objective of the mandate is to strengthen the promotion and protection of human rights in relation to trans-national corporations and other business enterprises. Following his appointment as Special Representative in July 2005, John Ruggie has met with States, NGOs, international business associations and individual companies, international labour federations, the United Nations and other international agencies, and legal experts. Subject to the availability of voluntary contributions, the Special Representative plans to convene regional multi-stakeholder consultations in sub-Saharan Africa, Latin America and Asia. In addition, he has concluded the first of what he hopes will be a series of unofficial visits to the overseas operations of companies in several sectors at the invitation of, but not financed by, the firms. The Special Representative is also conducting a survey of the Fortune Global 500 companies, asking this set of influential firms whether they have human rights policies and practices in place and, if they do, what standards they reference, whether they conduct human rights impact assessments and how they conceive of their human rights responsibilities towards various stakeholders.
In his Interim Report, published on February 22, 2006, John Ruggie outlines the general strategic approach to be taken to the mandate and he also summarises the current and planned programme of activities. Three broad contextual factors frame the Special Representative's analysis of the rapidly evolving business and human rights: "the institutional features of globalization; overall patterns in alleged corporate abuses and their correlates; and the characteristic strengths and weaknesses of existing responses established to deal with human rights challenges." He sees his difficult task as encompassing many elements which he goes on in detail to describe:
"It is essential to achieve greater conceptual clarity with regard to the respective responsibilities of States and corporations. In doing so we should bear in mind that companies are constrained not only by legal standards but also by social norms and moral considerations - in the terminology of the BUHR group, distinguishing what companies must do, what their intemal and external stakeholders expect of them and what is desirable. Each involves standards. But each has a very different basis in the fabric of society, exhibits distinct operating modes and is responsive to different incentive and disincentive mechanisms. A mapping of corporate responsibilities using such distinctions as its coordinates would have considerable practical utility for companies, governments and civil society alike. Whatever progress is made in this direction will be included in the 2007 report. In the meantime, one critical area of legal standards that merits close attention is the possible extension in the extraterritorial application of some home countries' jurisdiction for the worst human rights abuses committed by their firms abroad. If such jurisdictional doors were to open, however slightly, it might create a situation in which companies are held to different national standards as they once were in the areas of money laundering and of bribery and corruption. There seems to be interest all around in having a brainstorming session of legal experts examine this set of issues as well as possible responses to it. On the assumption that voluntary funding becomes available, the Special Representative would be pleased to host such an effort.
With regard to emerging legal standards for establishing corporate complicity in human rights abuses, the Special Representative will follow with interest the work of the expert panel convened by the International Commission of Jurists. Additionally, he is working with legal teams in several countries to examine case law in different jurisdictions. It seems that the most explicit judicial definition of complicity thus far was provided by the United States Court of the Appeals for the 9th Circuit in the Unocal case, brought under the Alien Torts Claims Act. The ruling stipulated three criteria: giving practical assistance to the actual perpetrator of a crime; the requirement that this assistance had a substantial effect on the commission of the criminal act; and the fact that the company knew or should have known that its acts would result in a possible crime even I fit did not intend for that crime to take place. These criteria conform closely to what is widely thought to be the current state of international law on this subject. There can be little mystery about core labour standards; ILO has actively addressed issues concerning work and related human rights for a very long time. Moreover, all employers, including business enterprises, are by direct implication among the addressees of its labour standards, while the private as well as public sectors, along with organized labour, are represented in the ILO tripartite decision-making structure through which standards are negotiated. Finally, ILO has eliminated uncertainty about what it considers to be its most fundamental human rights by limiting that category to eight conventions grouped under four headings: freedom of association and collective bargaining; the elimination of forced and compulsory labour; the elimination of discrimination in respect of employment and occupation; and the abolition of child labour-though none has been universally ratified.
The individual company policies and voluntary initiatives discussed in an earlier section are a reflection of how social expectations influence corporate behaviour. The Special Representative will continue his ongoing research in this area, concluding the analysis of the Fortune Global 500 firms, aiming to identify best practices based on that survey as well as other sources and focusing in particular on how to strengthen transparency and accountability mechanisms. In addition, he will keep in close contact with relevant stakeholders exploring new initiatives that link these concerns to capacity-building needs in developing countries.
The role of social norms and expectations can be particularly important where the capacity or willingness to enforce legal standards is lacking or absent altogether. Thus the Special Representative of the Secretary-General has asked the International Organization of Employers (IOE) to undertake work in the first half of 2006 indicating effective ways for companies to deal with dilemma situations encountered in "weak governance zones". IOE has agreed to do so and will liaise with its members and other business organizations, including the OECD Business and Industry Advisory Committee, the International Chamber of Commerce, and the Union des industries de la Communaute europeenne (UNICE), in order to determine the best way to establish the scope of this work. The Special Representative is grateful to 10E for undertaking this project and looks forward to its results.
The ability of companies fully to meet their human rights obligations depends in considerable measure on the availability of effective impact assessment tools at national and project levels. No standard tool is currently available; all past efforts have employed ad hoc approaches. Paragraph (d) of the mandate asks the Special Representative of the Secretary-General to develop materials and methodologies for undertaking human rights impact assessments. Upon initial exploration, the dimensions of this task unfortunately turn out to be beyond the resource and time constraints of the mandate, but the Special Representative will closely monitor two ongoing efforts.
The first is a human rights compliance assessment tool developed by the Danish Institute for Human Rights over a period of six years. As the name suggests, it identifies a company's compliance with human rights instruments - a total of 1,000 indicators derived from the Universal Declaration, the two Covenants, more than 80 other human rights instruments and ILO conventions. The Institute provides corresponding data on particular countries as well. By cross-referencing two, a company can assess its-likely or potential areas of risk. But the tool does not actually relate the impact of the company's existing or proposed activities to the human rights situation on the ground, or vice versa.
The International Finance Corporation is funding an effort intended to fill this gap by developing an actual impact assessment guide. According to its authors the guide will review the entire spectrum of human rights, focusing on the areas where the responsibilities of companies are clearest but reminding companies that they should review all areas of rights relevant to their operations. Human rights issues will be addressed at both country and project levels. The country assessment will focus on what impacts human rights challenges can have on projects and vice versa. At the project level the guide will take companies through a methodology that includes outlining each step of a typical impact assessment, identifying what human rights considerations should be taken into account in each step and explaining what the implications of a human rights approach means for the impact assessment process. A fuller report on these and any other such efforts will be included in the Special Representative's 2007 report.
The role of States in relation to human rights is not only primary but also critical. The debate about business and human rights would be far less pressing if all Governments faithfully executed their own laws and fulfilled their international obligations. Moreover, the repertoire of policy instruments available to States to improve the human rights performance of firms is far greater than most States currently employ. This includes home countries providing investment guarantees and export credits, often without adequate regard for the human rights practices of the companies receiving the benefits. The Special Representative will attempt to compile a compendium of best practices of States, as requested by the mandate, through a survey of Governments and other research.
Finally, ways must be found to engage State-owned enterprises in addressing human rights challenges in their spheres of operation. They are becoming increasingly important players in some of the most troubling industry sectors yet appear to operate beyond many of the external sources of scrutiny to which commercial firms are subject.
The Special Representative of the Secretary-General takes his mandate to be primarily evidence-based. But insofar as it involves assessing difficult situations that are themselves in flux, it inevitably will also entail making normative judgements. In the Special Representative's case, the basis for those judgements might best be described as a principled form of pragmatism: an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most-in the daily lives of people."
It will be interesting during the following weeks and months to observe the extent to which this approach forms a centre of gravity among business, governments and NGOs.