For the Rule of Law

T he R eview International Commission of Jurists

A rtic le s

The Law on Aliens Controversy in the Baltic States D agm ara Vallerui 1 The Russian Armed Intervention in Chechnya and its Human Rights Implications N icoLu M .L . Bov ay 29

C o m m en ta ry The United Nations Commission on Human Rights: 51st Session 57

Basic Texts Council of Europe - Framework Convention for the Protection of National Minorities and Explanatory Report 79 Council of Europe - Additional Protocol to the European Social Charter Providing for a System of Collective Complaints 105 World Summit for Social Development, Copenhagen 6-12 March 1995, Evaluation by the International Commission of Jurists 111

N° 54 J u n e 1995 Editor: Adama Dieng A rticled

The Law on Aliens Controversy in the Baltic Stated

Dag mar a Valleru'

Introduction could describe them without reaching a final conclusion. At the time of writing I promised to write a report on this (August 1995), the Laws on Aliens, as topic for the Review of the International well as the closely related Citizenship Commuuum of Jurists more than a year Laws, Laws on Immigration, and Laws ago. It seemed to be an easy enough task on Language in Estonia, Latvia, and when I started: just look up the data and Lithuania, were in the various stages of do it. Only then did I begin to be fully being supplemented, changed, or fini­ aware of the tumultuous circumstances shed. Therefore, this report will be more in which laws in the Baltic countries are like a snapshot in time than a conclusive being created; that the definitions used review of the subject. there sometimes take up a loaded’ mea­ ning, especially for outsiders; that the The subject is an involved one; dea­ interpretation tends to be either too ling with various groups of people to superficial or too deep. Finally, the laws whom too much has happened in too themselves - the actual words, lines, and short a time. A real injustice can be done paragraphs therein - keep changing. to every one of these groups by making quick and superficial decisions.1 At For a while I was waiting for the times, it appears that international laws that I was concerned with to solidi­ human rights authorities are more inter­ fy; but they kept on acquiring amend­ ested in having peace and quiet than in ments, going through twists and turns. justice. Aware that the three Baltic Then I realized that in order to really States desperately seek admittance to understand a law, it is important to Western alliances in order to have some understand the process leading to it. I security from Russia - their unstable and

* Dagmara Vallens was born in Riga, Latvia, and is a journalist. She has written extensively for Latvian newspapers in the West since 1958. She has been an accredited member of the UN press corps in New York since 1968 and a Correspondent for Bndb Free Europe (Latvian Section) since 1975. Since 1966, she has been active in UBA/BATUN (a New York-Based NGO dealing with human rights issues in Estonia, Latvia, and Lithuania). 1 International human rights authorities, instead of paying attention only to the Laws on Aliens and Citizenship Laws, should also inspect recent studies on involuntary population transfer. often aggressive neighbour to the East killings, more deportations, and a guer­ international agencies with the power to rilla war that lasted for almost a decade. In influence world opinion press the Balts addition, about 10 percent of the inhabi­ to pass legislation that is not necessarily in tants fled to the West. anyone’s long-term interest. The unruly neighbour to the East, in turn, knows At that point, in Estonia and Latvia, how to manipulate facts and opinions to a only 50 to 60 percent of the indigenous point where the plaintiff becomes the population was alive and living in the defendant. The politicians in power in area of their original homes. And yet the Baltic States can thus find them­ their culture, their outlook on life, their selves in a situation where they cannot language and songs survived and m do much more than procrastinate. In some ways even influenced the newco­ this context, implementation of laws in mers. For it is a veiy old culture: the Baltic States seems to be the weakest Estonians, Latvians and Lithuanians part of the process of returning to nor­ have lived in their land for more than malcy. 4000 years. Their ancient wisdom on how to live in harmony with nature is highly regarded by modern ecologists. Historical Background Allowed to thrive, they would be able to contribute their part to the Family of Before even attempting to begin, it Nations. But they need their land, the should be stressed that the area in question only place in which they can raise their has suffered several tremendous shocks children according to their own tradi­ over the last 50 years. In 1940, Estonia, tions and live their own life. Latvia and Lithuania, - three indepen­ dent and relatively prosperous States by That was not to be for 50 long years. the Baltic Sea - were occupied by the After reoceupying the land during Soviet Union as a result of a secret Nazi- World War II, the Soviets confiscated Soviet agreement - the Molotov- all private property and combined the Ribbentrop Pact of 1939. In one year most of their statesmen, intellectual lea­ individual farms into huge State enter­ ders, successful businessmen, rich far­ prises. They started to bring in large mers, famous artists, higher army offi­ numbers of people from other Soviet cers, and people who showed any type republics, mostly Russia. The newco­ of resistance were eliminated, shot, or mers constituted the bulk of the ruling deported to concentration camps. circle (called “Nomenklatura”) during During the Nazi occupation years the Soviet era. As the Soviet Union (1941-1945), another great population disintegrated and Estonia, Latvia and loss occurred through war action, invo­ Lithuania declared restoration of their luntary conscription into the German independence, certain of the newcomers army, and Nazi actions against political (typically the "Nomenklatura”) resented opponents - as well as the elimination of the loss of their privileged status and whole population groups: Jews, Gypsies hoped to regain it - if not in the previous and the mentally ill. As W orld W ar II “Socialist” form then perhaps in the ended, Soviet power returned with more form of a revanchist Russian Empire. Tke more I think about it, the more I Gorbachov launched “Glasnost” and have to admit that it is a tremendous “Perestroika” - eventually resulting in achievement of the three Baltic nations the total breakdown of the Soviet even to attempt to return their countries Union. As the process spun out of to a society based upon the Rule of Law. control, the Baltic nations seized the For fifty years the law was something to opportunity to announce the renewal of fear and hardly to rely on. For example, their independence (March-May 1990). one could be sentenced to 10 years in In August 1991, events came to a head Siberia for nothing (for a genuine cause and the Balts officially declared the one could get a 25 year sentence). The reinstatement of their independence. written law was supplanted daily by They could not wait and settle all the secretive telephone calls from “above.” inevitable complications with Russia People were accustomed to a life where first, for fear of losing the rare moment government pretends to pay them and in history when the breakaway was pos­ they pretend to work. The real success sible. Within three weeks, more than depended on “blat,” a mafia type of net­ 100 governments had recognized de jure working. Only the Party bosses and and de facto the restoration of the inde­ government higher-ups could quote law to pendence of Estonia, Latvia and you; if you tried to quote law to them, Lithuania. O n 17 September 1991, they you were bound to get in trouble. Often it became members of the United Nations. was enough to belong to the wrong social class - the peasant, the bourgeoi­ At the beginning, Russian President sie, the intellectual - to stop one from Boris Yeltsin and his government see­ ever succeeding in any meaningful way. med to be friendly towards the Baltic The anti-Jewish repressions in Stalin’s States, but this mood soon changed. The time are well documented; less known is old and deeply ingrained wish of most the fact that one could be sentenced to Russians - to restore the Czarist Empire - long years of slave labour and internal took over in the Russian leadership, lea­ exile for just being a Latvian.2 There was ving the fledgling strivings for democracy a strong Moscow-led Russification drive far behind. For their vehicle, they chose in all Soviet republics with the goal of the 25 million Russians living in the for­ marginalizing and eventually eradicating mer Soviet republics. Now independent all other languages in the Soviet Union States, which they labelled the “near “for the sake of efficiency.” This was the abroad.” This strategy was most elo­ time when Soviet diplomats could hap­ quently spelled out by Mr. S. A. pily sign all kinds of international agree­ Karaganov, Deputy Director of the ments without batting an eye - while European Institute, at a seminar in never intending to abide by them. Moscow. He said that Russian-speaking minorities in the “Near Abroad” were a This was the situation in the mid- “powerful asset” needed to “preserve 1980's when President Mkhail our leverage in order to have influence

2 This information is now emerging in Riga, during the trial of Alfons Noviks, the NKVD (later KGB) chief for Latvia from 1940 to 1953. The trial started on June 19, 1995, and is expected to last several months (Baltic Observer, June 22-28, 1995). in the future” - a strategy explicitly “massive human rights violations” in the endangered by Estonia and Latvia’s Baltic countries at international forums, “breaking of the ‘zero-option’ citizenship quite often in connection with the rule.”5 The author stressed the “need to Citizenship Laws and Laws on Aliens start from political leverage points as is that are the subject of this paper. being done in Latvia and Estonia.” A related goal is to “become the owners” of It has not been easy to draft these Baltic enterprises in order to "form a laws because of serious internal pro­ powerful political and economic encla­ blems (for reasons that will be explained ve.” Mr. Karaganov added that “force below). Balts have been veiy thankful can solve a great deal” but “we need legi­ for the help and advice extended to them timacy ... We need to prepare public opi­ by international experts in this regard. nion and international organizations so Lately, no matter how many review that they would acknowledge the need commissions have inspected these docu­ for the limited use of force within a legal ments, they have been found to be in framework.” compliance with international standards and in line with existing laws in other One can possibly see how this plan is democratic countries. Nevertheless, the being implemented by looking at the complaints and accusations by Russian banking crisis in Latvia; a financial representatives have not ceased but catastrophe for many depositors that has rather have become nastier, often inten­ its roots in inexplicable securities tran­ tionally mixing up the situation in the sactions with banks in Moscow. Popular Baltic States with events in the Balkans, sentiment has it that ex-KGB bankers darkly mentioning "ethnic cleansing” in (who helped themselves to State funds this connection. For people not familiar immediately after the coup) now raise with the situation in Europe, the words havoc in the Baltic financial markets. "Baltic” (in northern Europe) and Certainly, Russian government officials "Balkan” (m southern Europe) sound are said to have boasted of having bro­ sufficiently alike. At the present time ken the Baltija Bank.4 there may be junior diplomats from other continents who are convinced that For the last five years, Moscow has “ethnic cleansing” (a term applied to the treated the Baltic States with various catastrophic events in the Balkans) is approaches: intimidation, economic boy­ taking place in the Baltic States as well. cott, militaiy threat, and several attempts to provoke civil unrest. So far, In reality, it has taken a great deal of the most successful have been, firstly, determination and gnashing of teeth but Moscow’s skills in “negotiating” without the Balts have not been pulled into phy­ ever coming to a settlement, and second­ sical confrontation with supporters of ly, Moscow's ceaseless allegations of the Russian line. After visiting Latvia

3 Diplomatichedki Vedtnik 21/22, 1992. 4 See "Parex’s Swiss Role” (T&e Economist, 28 May 1994); Also Baltic Observer May/June/July 1995 regar­ ding the collapse of the biggest Latvian Bank, "Banka Baltija" and its chairman, Aleksandrs Lavents. five times for prolonged periods, I think I in their own way. They carry with them know why: they seem to be able to dis­ their experience of the last 50 years - the tinguish between theory and practice. If I good and the warped, the bad and the ask Latvians about Russians they would redeeming. It is called podt-CobniaL syn­ become quite agitated: their face would drome and one might presume that the redden, they would clench their fists and World by now had learned how to deal declare that the Russian treatment of the with it; but perhaps it has not occurred Baltic States was wrong, all wrong. But if to the World leaders to apply it to I asked the same person about the Eastern Europe. Russian living next door he would say: "Oh, that's Mischa our neighbour, we For the world at large, the term have known him for years.” Russians, m “Baltic States” has a fairly unifying turn, would complain that Latvians did connotation. Indeed, the major events in not know what was good for them, Estonia, Latvia, and Lithuania have otherwise they would return to the fold coincided over the last century. Since of "Mother Russia” and everybody the Middle Ages, the area has been would live happily ever after. Asked conquered by the Crusaders from the about his Latvian neighbour, he would Holy See, Germans, Danes, Swedes, say: "We help each other out m an emer­ Poles and finally by the Russian Empire in gency.” I am sure that left alone, without the 18th century. Nevertheless, the pre­ provocation from Moscow, they would dominant foreign culture in Estonia and all find a way to integrate or coexist. Latvia was German and Protestant, m Lithuania Polish and Catholic - in all All of Eastern Europe has experien­ three acquired from aristocratic land­ ced rapid change, leaving people totally lords who were entrusted to administer confused. No wonder the rest of the the area m Czanst times. Linguistically, world often misunderstands the situa­ Lithuanians and Latvians belong to the tion. For the post-Soviet peoples, see­ Baltic language group and Estonians to mingly straightforward words can cariy the Finno-Ugric language group. strong connotations. The term "Russian” Therefore, Moscow’s claims that Russia to a Balt does not mean a nation but has a common history and common cul­ rather 50 years of injustice and suffe­ ture with the Balts are false. The ring, lost lives and defeated dreams. He Russian Czar’s attempt to Russify the cannot be expected to forgive and forget in four short years, even in the best of Baltic area at the beginning of this cen­ circumstances - especially not now, with tury resulted in violent uprisings during Moscow applying continual pressure on the 1905 revolution. With regard to the Baltic governments. The term "common culture,” Balts have always "Baltic independence" to a Russian felt closer to other nations around the living in the Baltic countries means sud­ Baltic Sea than to Russia, thus proving denly finding oneself in a foreign coun­ the old adage that "seas unify, but rivers try, losing ones privileges, and fearing divide.” for one's future. Likewise the terms "Law on Citizenship” and "Law on After W orld W ar I, taking advantage Aliens” are understood differently by of the rare moment when both neigh­ those two groups, and they react to them bouring European superpowers - Germany and Russia - were weak, we'll have to review each Baltic country Estonia, Latvia, and Lithuania declared separately for they each took a different independence in 1918. While the Soviet path to arrive at their own Law on Union struggled with its dismal experi­ Aliens. ment, the Baltic States enjoyed prosperi­ ty, civil peace, membership in the League of Nations, and praise from other governments on their liberal laws Lithuania on minorities. Not much in common in either history or culture was shared until Lithuania was the first of the Baltic 1940, when the Soviet Union - after States to adopt a Law on Aliens on A secretly dividing Eastern Europe with September 1991. Their Law on Nazi Germany under the terms of the Citizenship was signed on 5 December Molotov-Ribbentrop Pact - invaded the 1991 and entered into force on 11 Baltic States. It is important to remem­ December 1991. It is based on a pre­ ber that most Western democracies vious citizenship law enacted on 3 never recognized the Soviet annexation November 1989. For Lithuania, it did of the Baltic States de jure. That helped not create as much controversy as the the Baltic States to regain their indepen­ same legislation in Estonia and Latvia.5 dence in 1991. This is the reason why Lithuania largely escaped Soviet-style many present-day laws in Estonia, industrialization - the main purposes of Latvia, and Lithuania - starting with the which seemed not to be efficient produc­ Constitution - are based on laws adop­ tion but overriding political goals: ted during the pre-w ar period. In 1920, Russification and forcible economic peace treaties were signed with Soviet integration with the USSR. Professor Russia, settling the borders “for ever Alekandras Stromas, who as a Jewish and ever, and for all times to come.” But orphan was adopted by the Lithuanian President Boris Yeltsin's Russia does not Communist Party chief Antanas want to recognize these peace treaties Snieckus, offers an interesting theory now and return to Estonia and Latvia that could explain the differences bet­ areas annexed by the Russian Soviet ween the population changes in the Federated Socialist Republic (RSFSR) three Baltic States.6 Whereas the First during Stalin's times. Secretaries of the Communist Party in Estonia and Latvia had been mere figu­ This was a quick background look reheads or born and raised in the USSR, into the common Baltic history, in order to Mr. Snieckus was a native-born commu­ understand the topic at hand. The Baltic nist. Although loyal to Moscow, he States now aspire to promote the uni­ knew how to take care of his people. He fying concept by cooperating on various claimed that Lrthuania was a backward levels. But if we want to look deeper country, not yet ready for large scale

5 Of Lithuania’s 3.8 million inhabitants 80% are ethnic Lithuanians, 10% are of various indigenous minorities and 10% arrived in Lithuania from other republics (mostly Russia) during the Soviet occupation. 6 Author's interview with Dr. A. Stromas. industrialization. While Estonia and ship who wished to naturalize must Latvia groaned under heavy demands reside m Lithuania for 10 years, for food and manufactured goods to be have a legal source of income; have sent to Moscow, Lithuania received knowledge of the Lithuanian lan­ occasional subsidies, was allowed to guage and Constitution; and take an build better looking housing in order to oath of loyalty. urbanize the "backward locals,” and was spared massive immigration from other The 1991 document on citizenship Soviet republics. Mr. Snieckus died in retains the same basic points but is more 1974; by that time, the Soviet economy elaborate. It has six chapters and 36 was already slowing down and could not articles, plus a resolution on the proce­ afford projects of great magnitude any­ dure for implementing the citizenship more. law. The law is written along conventional lines, sets the rules for complicated cases Therefore, Lithuania could accom­ of spouses, children, etc.; decides ways modate Russian demands and adopt the of acquiring citizenship (including natu­ inclusive citizenship concept known as ralization); lists five usual reasons pre­ the "zero option.” The qui2 pro quo was cluding the granting of citizenship; deals an early withdrawal of the relatively with retention of the right to citizenship, small and comparatively insignificant restoration of Lithuanian citizenship, Soviet garrison m Lithuania - as compa­ loss of citizenship, and reclamation of red to the tortuous negotiating process citizenship after its loss or forfeiture; leading to the withdrawal of the larger describes procedure for resolving issues and strategically more significant garri­ concerning citizenship; and finally states sons in Estonia and Latvia. that if an international agreement to which the Republic of Lithuania is a The 1989 law made citizenship avai­ party prescribes rules other than those lable to three categories of individuals: established by the Law, the provisions of the international agreement shall pre­ 1 those who were citizens or residents of vail. Lithuania prior to Soviet annexation (15 July 1940) and their descen­ One paragraph of the implementa­ dants; tion resolution deals with the registra­ tion of foreigners who are not entitled to 2 permanent residents who were not "zero-option” citizenship due to having citizens of another State and were arrived after the specified deadline, but born in Lithuania, or who have a who wish to become permanent resi­ parent or grandparent who was; dents of Lithuania, and who have pas­ sports of the USSR. They must apply to 3 anyone who was a permanent resi­ agencies of the Ministry of Internal dent with a legal source of income Affairs of the Republic of Lithuania for when the first version of the citizen­ residency permits, not later than July ship law took effect in November 1992. The permits must be issued within 1989. According to the law, those one month of the day of application. not qualifying for automatic citizen­ Said persons must have their internal passports of the USSR exchanged for limits and procedures for entry. A forei­ foreign passports of their respective gner who has been granted a permit to States by 1 Ju ly 1992. immigrate to Lithuania shall be issued the entrance visa in the manner prescribed O n 4 September 1991, the by the Minister of Internal Affairs valid Lithuanian law on immigration was also for a period of nine months. If a forei­ passed, establishing procedures for the gner fails to enter Lithuania within this entry of foreigners into the Republic of period, the matter of his immigration Lithuania for permanent residence. shall be reconsidered according to the Foreigners may apply for residence per­ procedures of this law. Upon arrival in mits only if they have an invitation from a the Republic of Lithuania, a foreigner citizen of the Republic of Lithuania. The must register his foreign passport (or an law lists 10 reasons impeding immigra­ equivalent thereof) with the Ministry of tion: if the foreigner is afflicted with a Internal Affairs not later than within 7 dangerous disease; if he is mentally days. Thereafter the Ministry of Internal retarded or mentally ill; addicted to Affairs shall issue the foreigner a docu­ drugs, intoxicants, or alcohol; has no ment confirming his status as an immi­ legal source of subsistence in the State grant. from which he wants to emigrate; has no permanent place of residence in the This law, too, ends with the clause: if State from which he wants to emigrate; an international agreement, binding on during the last five years has deliberately the Republic of Lithuania prescribes committed a serious crime; is engaged in measures other than those prescribed activities directed against the Republic under this law, the measures prescribed of Lithuania; during the last five years under that agreement shall be applied. has been deported from the Republic of The Council of Europe officials who Lithuania under this law; seeks to pro­ reported on the Lithuanian laws in cure the permit for residence in the January 1992 could “not find any indi­ Republic of Lithuania by deliberate mis­ cation that the rules in general do not representation or fraud; or possesses no meet international standards.” 7 documents of identification. The work of updating and amending The law further discusses the proce­ Lithuanian legislation continues, gene­ dure for the consideration of applica­ rally with the advice and counsel of tions for immigration (fees, time limits, international experts. Periodically, the grounds for revocation of a permit, lea­ Lithuanian Parliament invites groups of ving and deportation, repeated applica­ experts to participate m special semi­ tions). Article 6 provides for setting up nars. One such seminar, held in mid- an immigration quota, to be established April 1994, reviewed the entire body of by the Parliament on the recommenda­ Lithuanian legislation in light of interna­ tion of the Government of the Republic of tional human rights conventions. Lithuania. Article 13 discusses time Particular attention was devoted to

7 Rudolf Bernhardt and Henry Schermers "Lithuanian and Human Rights Standards” reprinted in Human Rigbtd Law Journal vol. 13, No.5-6, p.253. article 138 of the Lithuanian are various. After a fifty-year lapse, Constitution, which deals with the rela­ many claimants cannot find or obtain all tionship between international law and of the required documents, some of Lithuanian law. Some legal experts clai­ which may have been confiscated or med that international conventions auto­ destroyed durrng the war. The docu­ matically become part of national law on ments themselves have to be tested ratification, while others insisted that a against forgery. The buildings them­ separate act of Parliament is required to selves may have been destroyed, torn convert the provisions of international down, renovated at the expense of instruments (such as human rights others, sold, or encumbered by leases. conventions) into valid Lithuanian law. Some officials - accustomed to Soviet work standards - are unwilling to exert It was mentioned that the current themselves rn resolving difficult cases, or law on the legal status of foreigners in are working at an unacceptably slow Lithuania has a "reprisals" clause which is pace m clearing up the backlog of resti­ not acceptable under international law. tution requests. It states that when another State "res­ tricts or violates universally recognized The UN experts welcomed the norms of legal status of foreigners” for Parliament’s approval of legislation crea­ Lithuanian citizens in its territory, ting Lithuania’s first "Ombudsman" ins­ Lithuania can introduce "reciprocating titution. These experts also urged restrictions of rights and freedoms" of Lithuania to sign the optional protocol citizens of that State living in Lithuania. A to the International Covenant on Civil legal expert pointed out that this clause and Political Rights. This would make it was identical to previous Soviet-era possible for individuals in Lithuania to legislation which had found its way back have their specific grievances heard by into Lithuanian legislation after the res­ toration of independence. the UN Committee on Human Rights. At present, individuals do not have this option. Much time has been spent on discus­ sions of minority rights, minority gua­ rantees, and anti-discriminatoiy mea­ O n 21 April 1995, Baltic Council sures. Lithuania has made significant Human Rights Commissioner Ole progress towards international stan­ Espersen stated during a visit to Vilnius dards in this field, but problems remain - that the Baltic nations have made great particularly with regard to the restitu­ strides on human rights issues, but that tion of property that had belonged to they must repeal the death penalty. He individuals prior to the Soviet annexa­ added that Lithuania’s prisons continue tion of Lithuania in 1940. The topic was to be overcrowded, and that brutal raised at the international seminar as if hazing of military conscripts must stop. only members of minority groups were Hazmg - an inheritance from Soviet having difficulty retrieving their proper­ military practice - has proven to be a ty. It was pointed out, however, that vir­ persistent problem in all three Baltic tually everyone has been subject to the countries despite the efforts of senior same delays and difficulties. The reasons commanders to root out the practice. A representative of the UN High agreement on inter-Baltic cooperation in Commissioner for Refugees (UNHCR) handling illegal Mideastern refugees. emphasized the need for Lithuania to Officials stated, however, that a mea­ accede to the UN Refugee Convention ningful regional policy towards illegal of 1951, and welcomed Parliament’s refugees could only begin to be effective efforts to draft appropriate refugee legis­ if an agreement can be reached in this lation. Lithuania - along with Estonia regard with Russia and Belarus. Not and Latvia - has a refugee problem surprisingly, the CIS nations have been which has presented authorities with reluctant to accept the return of illegal numerous economic, political, and pro­ aliens that have used their countries for cedural difficulties. Trucks, trains, ships, transit purposes. and containers full of refugees - many from Iran, Iraq, Afghanistan, and In the area of national minorities, Turkey - have been apprehended in the Lithuania does have some problems, Baltic countries on their way to though they are different from those Scandinavia after having started their facing Estonia and Latvia. For an expla­ journey somewhere in the nation, we have to go back to the year Commonwealth of Independent States 1385 when Lithuania’s G rand Duke (CIS). Due to insufficiently well-guar­ Jogaila married Jadwiga, the Queen of ded borders, their numbers have been Poland, thus creating the Lithuanian- increasing. Most appear to have paid Polish Kingdom. During his son large sums to the CIS-based post-Soviet Vytautas’ rule, the kingdom became one of organized crime groups locally known as “mafia,” and virtually all refuse to the largest States in Europe - including return to their country of origin. present-day Belarus, most of Ukraine, and parts of Western Russia. Overshadowed and subsequently redu­ Faced with severe budgetary ced by stronger neighbours, the king­ restraints, the Baltic countries have not dom came to an end in 1795, when the set up an adequate mechanism to deal major part of Lithuania was annexed to with the refugee problem. Many of the the Russian empire. Culturally, refugees are Kurdish, and have legitima­ Lithuania remained under strong Polish te grounds for asylum. In M arch 1995, a and Catholic influence until the emer­ controversy also surfaced concerning gence of the Lithuanian national move­ the presence of eight Chechnyan chil­ dren in Lithuania. Two weeks later, two ment in the early 19th century. Towards Russian Army soldiers sought political the end of the century, Lithuanians had asylum in Lithuania after being infor­ to endure an oppressive Russification med that their unit was to leave drive that included the banning of all Kaliningrad in order to take part in the publications in their native language. Russian occupation of Chechnya. As Lithuania has not yet drafted any legis­ During Czarist rule, the Vilnius lation regarding asylum, the two deser­ region had become ethnically mixed and ters were extradited on 4 April and han­ because of this became the subject of a ded over to Russian military officials at major territorial dispute between the the Kaliningrad border. On 27 April, newly independent countries of Poland Baltic leaders met in Riga to draft an and Lithuania after World War I. Lithuania claimed Vilnius as its capital Lithuanian Government. On this occa­ on historical grounds, but Poland coun­ sion, border talks between the two coun­ tered with the claim that the majority of tries stopped, but resumed shortly the­ Vilnius ’ residents were Polish (or at least reafter and concluded with a significant n o n - Lithuanian). In 1922, Poland occu­ friendship and cooperation agreement. pied the Vilnius region and Kaunas The actual substance of the Lithuanian- became Lithuania’s inter-war capital. Belarusian border dispute in 1994 revol­ When the USSR occupied Lithuania ved around purely local demarcation and Eastern Poland at the outset of issues, such as the allocation of railroad World War II under the terms of the sidings at a train station bisected by the Molotov-Ribbentrop Pact, Vilnius was border. Lithuania also signed an equally returned to Lithuania while other ethni­ significant friendship and cooperation cally mixed areas formerly under Polish agreement with Poland in 1994, presu­ administration were integrated to the mably putting the emotionally charged Belarusian SSR and Ukrainian SSR. issue of Vilnius to rest once and for all. During Soviet rule, the city of Vilnius again acquired a Lithuanian majority, but was still surrounded by rural vil­ In the area of the rights of minorities, lages of mixed Polish and Belarusian Lithuania had a very liberal law prior to origin speaking a local Slavic dialect. As World War II and employed a special the Lithuanian pro-independence move­ Minister to deal with minority issues. ment “Sajudis” gained strength during The largest groups - Poles, Russians, the late 1980’s, the inhabitants of this Belarusians, Jews, and Germans - had area were encouraged to form pro­ their own schools, press, theatres, and Soviet groups purporting to represent community organizations. With the oppressed Polish and Belarusian minori­ Soviet annexation, all but the Polish and ties. Poland and Polish political figures Russian schools were closed, as were were generally careful not to get drawn virtually all minority organizations and into this dispute, but for a time Belarus institutions. With the restoration of declared that the Vilnius region belon­ independence, Lithuania has returned to ged to them since pre-war Lithuania had a liberal law on minorities guaranteeing not included Vilnius since 1923. equal political, economic, and social Presumably, the Belarusian claim was rights and freedoms regardless of ethnic also based on whatever "right of background. Discrimination with regard conquest” accrued to the USSR as a to race, nationality, language, and creed is result of having invaded Eastern prohibited and punishable. The State Poland. People familiar with the circum­ supports minority cultural and educatio­ stances of this argument suspect that the nal institutions. Minority schools, reli­ claim was a political accommodation to gious instruction, ethnic organizations, Moscow’s campaign against "Sajudis.” and an ethnic press in various languages Russian involvement in Lithuanian- are once again on the rise in Lithuania. Belarusian relations also resurfaced in 1994, when the Belarusian Parliament In some respects, the minority situation was incited to oppose extradition claims has changed. After the World War II, for persons accused of having participated many Poles repatriated to Poland, in the attempted 1991 coup against the decreasing the percentage from 15.3 percent in 1923 to 7.0 percent in 1989. Theatre. It was the third celebrity Virtually the entire Jewish population couple with Russian or Soviet citizen­ (8.3 percent in 1923) perished or fled ship to be granted Lithuanian citizen­ during the Nazi occupation, the 0.3 per­ ship by special request. cent appearing in the 1989 statistical tables being mainly post-war newco­ mers. Estonia

However, since 1989, several Jew ish The roots of the present Law on schools have opened, accompanied by Aliens8 controversy in Estonia go back press and radio programmes - joining to the Soviet occupation in 1940 and to the Jewish cultural society established what followed: terror, mass killings, in 1988. Unfortunately, the notable cul­ guerrilla war, and mass involuntary tural life of the pre-war Jewish commu­ population transfers to arctic and desert nity in Vilnius - with its prominent reli­ regions of the USSR - accompanied by gious figures and schools, renowned significant loss of life. By 1949, only authors, philosophers, and artists - has 775,900 persons remained in Estonia out been irretrievably lost. of a pre-war population of 1,134,000. Communist Party cadres and workers Lithuania also has State-supported were imported from other Soviet repu­ schools for Russian and Belarusian chil­ blics - mainly Russia - to feed the needs of dren, and has been patiently conducting a newly developed military-industrial talks aimed at opening Lithuanian complex that ignored local needs and schools in Russia and Belarus - so far resources. The industrialization pro­ without success. Notwithstanding perio­ gramme created a need for unskilled and dic fiery Russian speeches about human semi-skilled labour that could not be met rights violations in Lithuania, the locally. Russia, however, had accumula­ government is trying to maintain good ted a vast reservoir of newly urbanized relations with Russia. Russian accusa­ unskilled and semi-skilled workers after tions generally accompany negotiations the collectivization of agriculture had on issues such as their demand for unli­ depopulated and impoverished the rela­ mited transit rights to the heavily milita­ tively unproductive farming areas of the rized Russian enclave of Kaliningrad. RSFSR. Through such means, the On 22 March 1995, Lithuanian Estonian proportion of the civilian President Algirdas Brazauskas granted population (excluding the demographic Lithuanian citizenship to opera singer impact of a significant permanent milita­ Yelena Obraztsova and conductor Algis ry garrison) was made to decline from Ziuraitis of the Moscow Bolshoi 93 percent m 1939 to 62 percent today

8 The Law on Aliens controversy was very thoroughly documented in a 1 Jan. 1994, Study by UBA/BATUN (a New York based non-profit membership organization involved with Baltic human rights issues, founded 29 years ago). This chapter is more or less a summary, with updating, of the earlier work. (based on post-war borders after the In resolving the issue of citizenship, annexation of certain ethnically mixed Russia favoured the “zero-option" plan, territories to the RSFSR). Since the size whereby all residents of the former of the military garrison at various times USSR would automatically acquire citi­ has never been officially disclosed, the zenship in the country under whose total demographic situation over time jurisdiction they found themselves. In its can only be estimated. most extreme form, “zero-option” included the millions of active-duty and retired Russian military personnel stationed During the 1987-91 struggle to resto­ outside Russia and was paired with the re independence, a mass organization concept of dual citizenship for ethnic called the Congress of Estonia worked Russians or “Russian-speakers” outside to unite all those who had been citizens Russia. By contrast, Estonian lawma­ of the original Republic of Estonia, as kers felt that voluntary naturalization well as their descendants. The Congress and single citizenship would be the most sought to preserve the de jure continuity enduring way to guarantee stability and of both the Republic and citizenship in security - pointing to the chronic unrest in the Republic. These concepts gained “zero-option” Moldova, Georgia, general acceptance and became the basis Armenia, Azerbaijan, Tadjikistan, and of subsequent legislation - notably the Ukraine. While a majority of ethnic Law on Citizenship and the Law on Russrans resident in Estonia may have Aliens. found a “zero-option” plan far more convenient, the involuntary imposition In essence, these laws sought to find a of citizenship on a jud soli basis would humane, politically acceptable, and have included as Estonian citizens a legally' sound way to deal with the significant minority that rejects the very consequences of Soviet terror and invo­ sovereignty and legitimacy of the Estonian State. luntary population transfer. But these laws met with heavy criticism from seve­ ral quarters. Estonian patriots wanted to For hundreds of years, the Russian restore Estonia as it was before World empire and the USSR followed the tra­ War II to the maximum extent possible, ditional concept of citizenship embraced by most European countries of jud san­ while newcomers from various Soviet guinis, or citizenship through parentage. republics protested the loss of privileges Countries more oriented to immigration, and advantages enjoyed during the such as the United States of America, Brezhnev era. Foreign advisers and followed the tradition of jud doli, or citi­ States wished to avoid confronting the zenship according to place of birth. moral and legal implications of With the passage of the Russian Russian/Soviet colonial rule, while Federation Citizenship Law on 6 Moscow attempted to preserve as much February 1992, Russia broke with its influence and involvement as possible in own legal tradition and embraced jud the “Baltic provinces” whose loss was doli. Subsequently, Russia pressured the lamented by a considerable portion of CIS nation States and the Baltic coun­ the post-Soviet Russian political spec­ tries to accept the most extreme form of jud trum. doli, and accept as citizens all those who were present on their territory when the alarmed that their human rights might USSR ceased to exist. Of the Baltic be in danger, that they might lose their countries, only Lithuania followed suit jobs, or that they might actually be since the demographic situation of deported. The Law on Elections had Lithuania had not been significantly already directly threatened the power altered by involuntary population transfer; base and commercial interests of non­ Estonia and Latvia found this solution citizen elected office-holders in Narva unacceptable. and Sillamae. The city councils of both Narva and Sillamae were dominated by Prior to consideration of the Law on ex-nomenklatura elements who suppor­ Aliens, the citizenship and language ted the 1991 coup against Mr. laws had drawn loud protests from Gorbachov. Moscow, but active opposition in Estonia appeared to be confined to ex­ Non-citizens in the capital city of communist activist circles. Moderate Tallinn, by contrast, appeared not to be groups representing non-citizens accep­ as interested in the implications of the ted the citizenship and language legislation Law on Elections and the Law on Aliens while suggesting changes, the most radi­ as they were in economic issues. This is cal of which was a call for official bilin­ not surprising since Tallinn was at the gualism by the Russian Assembly. forefront in privatization and new busi­ ness formation. Narva and Sillamae lagged Domestic opposition to the Law on in this regard and this was at least partly Aliens within Estonia was stimulated by due to a reluctance by the local leader­ prior passage of the Law on Elections. A ship to endorse economic change. legislation that required candidates for munrcipal office to be citizens, even O n 26 February 1992, the Estonian though non-citizens with five years of Supreme Council had reconfirmed the residence had been granted the right to validity of the 1938 Citizenship Law of vote in municipal elections. Passage of the Republic of Estonia, recognizing the this law antagonized office-holders in de jure continuity of Estonian citizenship. the Northeastern part of Estonia - an Estonian citizenship was thus reconfir­ area subjected to ethnic cleansing after med for (as opposed to being granted to) World War II and the site of a former those who were citizens on 16 June atomic processing plant subsequently 1940, and for their descendants. Lenient converted to other military-industrial naturalization standards were provided uses. Fearing the loss of their fiefdoms, for non-citizens, with certain humanita­ these officials worked with local ex-com­ rian exemptions for invalids and pensio­ munist activists to oppose the provisions ners. Expedited citizenship was made of the Law on Aliens, and had frequent possible for non-citizens that had been contact with representatives of the active in the independence movement. Russian Government over the course of events. Due to the chronic Russian-lan­ Any non-citizen who had been resi­ guage disinformation surrounding the dent in Estonia on 30 March 1990 and consideration of the Law on Aliens, who had filed an application as soon as many local non-citizen residents became possible, would have been granted citi­ zenship by April 1993, on passage of the and social privileges commensurate with language test. In the interim, the their “honour and dignity." A certain Russian Federation had offered citizen­ number of the retired military and KGB ship to former USSR citizens regardless of officers present in the country were their place of residence. But relatively involved in operations against the post­ few resident non-citizens have actually war Estonian armed resistance move­ applied for either Estonian or Russian ment.9 A number of other Soviet vete­ citizenship. A poll taken in 1993 sugges­ rans took part in mass arrests, mass ted that 56 percent of all resident non murder, torture and deportations, and citizens intended to apply for Estonian could be accused of crimes against citizenship and 10 percent intended to humanity. This was especially true in the apply for Russian citizenship. case of Soviet KGB officers, virtually all of whom were actively involved in viola­ Over time, amendments and clarifi­ ting the most basic human rights stan­ cations have corrected certain ambigui­ dards. In order to ensure the security ties in the original language of the citi­ and stability of the State, Estonia did zenship law that were subject to not find it appropriate to be forced to criticism or misunderstanding - m parti­ grant citizenship to persons whose cular the concept of "steady income." whole professional life had been devoted O n 7 M ay 1992, in a note to the Council to preventing the restoration of Baltic of Europe, Russian Foreign Minister independence. Andrei Kozyrev suggested that the lan­ guage of the legislation would first A most bitter controversy was crea­ deprive non-indigenous persons of their ted by the language requirement of the jobs, after which they would be denied legislation. The law as passed was not citizenship, accusing Estonia of promo­ criticized for the language test being too ting "intolerance, aggressive nationa­ difficult but rather for the very idea that lism, and xenophobia." citizenship applicants must be able to speak the national language. A parallel Subsequent legislation has made it law has set language requirements for clear that "income” may be of any sort, various jobs - such as workplace mana­ including unemployment and welfare gers, health care personnel, and the poli­ payments. A more serious stumbling ce - with fairly liberal multilayered dead­ block is the denial of citizenship to for­ lines that will probably be extended. mer members of the KGB, active-duty Estonians deem it very important to military personnel, former military offi­ have access to basic services in their cers, and their families. The Russian own country in their native language. Government claims that members of the During the years of Soviet regime, it occupation forces should enjoy automa­ was not uncommon for Estonians to be tic rights to citizenship (preferably dual insulted by Russians with the phrase citizenship), perpetual housing benefits, "speak a human language," if they

9 The last known active member of the postwar Estonian armed resistance movement died in a gun- fight with KGB operatives in the early 1970's. attempted to speak Estonian in an offi­ residency after 1 Ju ly 1990, did so cial or commercial setting. The final ver­ under valid Estonian legislation and are sion of the Language Law was passed on not subject to exceptions listed in the 10 February 1993, after considerable law. Non-citizens who received residency debate. The Estonian Government has permits from the Estonian SSR before 1 been urged to increase the number of Ju ly 1990, must apply for residency per­ teachers of the Estonian language, and mits during a one year phase-in period. to defray the cost of instructional mate­ Those who do not apply have an additio­ rials as a desirable gesture of good will nal year to leave the country. Most toward all minorities. applicants for permanent residency will receive their permits automatically, and In February 1995, the Estonian have them renewed automatically unless Parliament (formerly called the they have committed serious crimes or Supreme Council or "Ulemnoukogu,” endangered national security. now called the “Riigikogu” - literally “State Council”) adopted a bill making Exceptions include active duty mili­ Estonian the sole official language and tary personnel and retired officers from declaring other languages including foreign military forces; persons who Russian to be foreign. The bill allows have been or are employed by a foreign Russian to be used along with Estonian in intelligence or security service; felons regions where ethnic Russians make up and ex-felons; and certain persons who a majority of the population. have endangered national security or worked against Estonian national inter­ On 19 January 1995, the Estonian ests. Parliament passed a new, strengthened citizenship law. The statute, harmonized The law establishes procedures for with European Union norms, stipulates the issuance of Alien Passports and for a five year residency requirement (pre­ the continued use of Soviet passports by viously the requirement was two years) certain persons. The acquisition of a before an application for Estonian citi­ foreign citizenship does not by itself zenship may be made. The new law also have any impact either on residency imposes a requirement to pass a test on rights or on social and economic bene­ the Estonian Constitution, in addition to fits. an Estonian language proficiency test. It is significant to note that the first Having explained these circum­ protest against the law was lodged, not stances, let us turn to the initial version by the local residents affected by the of the Estonian Law on Aliens that was law, but by the Russian Foreign passed on 21 June 1993. It defines the Ministry, a few days before its passage. status of aliens, temporary residents, In a speech to the UN World and permanent residents in Estonia. Conference on Human Rights in Vienna Residents who do not have citizenship in June 1993, Russian Foreign Minister are guaranteed all human and social Kozyrev included veiled references to rights on an equal footing with Estonian the situation in Estonia, charging “eth­ citizens. Non-citizens who were granted nic cleansing in white gloves.” On 18 June, Estonia was accused of "dama­ to solicit expert advice from the ging inter-State relations, aggressive Organization for Security and nationalism, territorial pretensions, Cooperation in Europe (OSCE) and pressure on Russian military, an Council of Europe (COE). A unfriendly attitude toward Russia,” and "Roundtable” on ethnic issues was esta­ "the denial of employment, social bene­ blished as a mechanism for various fits, and political rights to non-citizens.” minorities to express their concerns Similar statements followed almost about Estonian legislation. Nonetheless, every day until 24 Ju n e 1993, when in a the Narva Council called for an autonomy statement issued in the name of Russian referendum on 28 June. On 30 June, President Boris Yeltsin, it was claimed top Estonian officials went to Narva to that Estonia had "forgotten about some explain the Law on Aliens and other geopolitical realities," but that Russia legislation. The Chancellor of Justice had the "possibilities to remind it of asked the Narva City Council to with­ them.” draw the referendum since he had ruled that it was unconstitutional. An officially prescribed waiting period began which Prior to the passage of the Law on would lead to consideration of the legali­ Aliens, the Russian Federation had pro­ ty of the referendum on 11 August 1993. tested the re-adoption by Estonia of its On 4 July, Sillamae joined Narva in 1938 Citizenship Law and the Language planning a referendum while Mayor Law. Although citizenship matters are Sobchak of Saint Petersburg accused totally within the internal jurisdiction of a Estonia of preparing to deport its State, Russia has ignored this time Russian populatron. honoured princrple and raised this issue in the UN, and requested the Office on On 1 July, the Russian Parliament Democratic Institutions and Human voted 160-0 to call for sanctions against Rights (ODIHR) in Warsaw to investi­ Estonia, asking Mr. Yeltsin to apply gate the matter. Since the 1938 Estonian political and economic pressure, and citizenship legislation is quite liberal in continuing the existing suspension of its requirements in comparison with the troop withdrawals. Talks with Estonia citizenship laws of many other States, and Latvia on the withdrawal of remai­ Russian protests have not found many ning ex-Soviet occupation troops - supporters.10 unpopular with the military - had already stalled. Constant talk of a linkage bet­ The hostile Russian statements were ween troop withdrawal and what the followed by an anti-government rally led Russians would refer to as "human by the Narva and Sillamae politicians, rights violations" raised the question of and a demonstration in Tallinn. whether citizenship and language issues Responding to suggestions by worried were a smokescreen for maintaining a Western countries, Estonian President military presence as long as possible. In Lennart Meri refused to sign the Law on any case, the continued existence of Aliens on 25 June, and proposed instead Russian garrisons - outnumbering the

10 On 9 July 1993 the European Community released a "Declaration on Estonia’’. Also see Swedish PM Carl Bildt’s article in the 27 July issue of the International Herald Tribune. small and underequipped Estonian and On 9 July, the European Union Latvian armies - increased the risk of issued its "Declaration on Estonia” prai­ intervention, as well as the perception of sing the revised Law on Aliens. OSCE an external threat. Staff Report (September 1993) carried this evaluation (in part): Both the OSCE and COE responded quickly to President Meri’s request to "Whether the Russian commu­ review the law. The OSCE replied on 1 nity finds its place in a future July, and the COE on 2 July. After Estonia with a reasonable digesting their advice, President Meri degree of tranquillity, or called the Estonian Parliament into special Estonia becomes another area session. On 8 July, the Parliament pas­ of ethnic tensions in Europe sed a revised Law on Aliens. A total of depends on several factors ... 19 separate changes were made. The [one of those being] the attitude substance of the Law on Aliens remai­ of the Russians and Estonians ned unchanged, but the bill now contained themselves. Russians must clarifications and additional language come to grips with the fact that that non-citizens were expected to find they live in an independent reassuring. The new wording was more nation, neighbouring, but not explicit. The right to appeal was mentio­ part of Russia. They will have ned more frequently, and there was to make major changes in their more emphasis on the right to receive lives, unfamiliar territory for residence permits without much change many people used to having in the actual requirements. The law decisions made for them. continued to reflect the desire of most Estonians to see the complete departure of Russians also need to unders­ the Russian military and other persons tand why many Estonians find it closely associated with the ex-Soviet so difficult to accept their pre­ occupation forces. On this point, legisla­ sence in Estonia: that while tors were unwilling to enact more liberal they personally may have been provisions despite OSCE and COE sug­ innocent of repression, they or gestions, although active duty and reti­ their forbears were used by the red officers and their families would be communist regime to suppress able to apply for individual exemptions a nation and a people; and that if they wished to become permanent every time Estonians were for­ residents. ced to switch to a foreign lan­ guage to speak to someone in Substantive changes included the eli­ their own country, it was ano­ mination of the requirement to renew ther reminder of the suppres­ permanent residency permits every five sion. years. Grounds for refusal to grant resi­ dency permits were more rigorously Regardless of concessions by defined - primarily as endangerment of Tallinn [whatever the issue], national security. Explicit provision was those elements unreconciled to made in the law for ex-felons considered the loss of the Baltic States will to be rehabilitated. use every opportunity, valid or otherwise, to level charges of issue of permanent residency as a source human rights violations in of controversy. In the context of the stal­ Estonia. For this reason, it is led troop withdrawal negotiations, cer­ essential that the international tain provisions of the Law on Aliens community ... condemn shrill regarding the status of Russian and ex­ rhetoric or actions inconsistent Soviet military retirees and their depen­ with the principles of the dants continued to be disputed by Helsinki Final Act and CSCE Russian negotiators. During subsequent commitments on both sides.” talks on the removal of the Russian gar­ rison from Estonia, Russia rescinded its Although Russian allegations of dis­ previous commitments several times, crimination have been refuted on nume­ insisting on unconditional permanent rous occasions by the UN, the OSCE residency for all Soviet military retirees (the then CSCE), and various European demobilized in Estonia. While the bodies, it is always good to have yet ano­ Estonian Government explicitly signal­ ther body of experts reach the same led a readiness to consider residency on a conclusion, effectively thwarting case-by-case basis (especially for those Russia’s apparent desire to exercise influence over Estonian internal policy born before 1939), Russian negotiators through third parties. Also, alarmist treated their demands as non-negotiable Russian predictions of impending civil preconditions for withdrawal. After strife once again turned out to be either several hrgh-level meetings and various politically motivated exaggerations or - fiery statements, Estonian President in the darkest interpretation of events - a Lennart Meri and Russian President failed attempt to create conditions that Boris Yeltsin signed the agreement (26 would lead to the dismemberment of July) calling for the withdrawal of vir­ Estonia. Ominously, Russia had some tually all remaining members of the success in fomenting such strife in the Russian armed forces from Estonia by Transdniestr region of independent 31 August 1994. At the same time, they Moldova and in the Abkhaz region of signed an agreement regularizing the independent Georgia, and to a much les­ continued residence of some 10,000 ser extent in the Crimean region of inde­ Russian military retirees living in pendent Ukraine. If Estonians imple­ Estonia. Estonia retained the right to ment the Law on Aliens fairly it will establish a commission to review resi­ undercut the Russian Federation’s ability dency applications by Russian military to extract political concessions in the retirees on a case-by-case basis, and future by continuing to level charges of reserved the right to expel retirees human rights violations - unless it whose behaviour may be deemed harmful wishes to lose any more credibility on to Estonia’s society.11 the issue. The actual implementation of the International approval of the Law on Law on Alrens has run into some diffi­ Aliens, however, had not defused the culties. First, the Estonian Government

11 On 8 June 1995, Estonian Prime Minister Tiit Vahi stated that the Finnish Government is prepa­ red to pay several million Finnish marks in aiding the repatriation of the approximately 10,000 retired Russian militaiy officers currently living in Estonia. was extremely slow in preparing the ne, but these were killed by the right- paperwork for residency and work per­ wing opposition party during the last mits. On top of this, the Departments of regular parhamentaiy session before a Migration and Citizenship were combi­ three month summer recess. At a drama­ ned and reorganized, interrupting the tic Special Session of the Estonian orderly processing of the permits. The Parliament, the deadline was extended paperwork was finally ready by March past 12 July, giving the Interior 1994, but some local Russian newspa­ Ministry another four months to receive pers advised their readers to ignore the applications. Persons who did not register law and not apply for permits. In April before 12 July, however, would not be 1994, it became obvious that the deadline able to vote in the next round of local for legalizing the status of the aliens elections and might be subject to other could not be met. O n 18 M ay 1994, the restrictions. The vote to extend the Parliament adopted a Law on deadline (57-0) took place in the last five Temporary Travel documents in which minutes of the session after 31 conserva­ the deadline for applying for residency tive deputies walked out. and work permits called for in the Law on Aliens was extended until Ju ly 1995. The proposed amendments had won praise from the Russian faction who had But by the set date - 12 July - about felt that they would help to more exactly 150,000 of the approximately 400,000 determine the legal status of non-citizens non-citizens in Estonia had not yet in Estonia. A proposal by the Russian registered to apply for residency and faction in Parliament to grant automatic work permits. An official monitoring permanent residence status to all people who lived in Estonia before 1 July 1990, minority affairs said that “there are a was voted down by Parliament. It is number of people who were born and expected, however, that the current raised in Estonia and do not think they government, which has often voiced its need to apply to continue living here. intent to promote the integration of Some of those people simply will not aliens and better relations with Russia, apply.” Sources within the Russian com­ will succeed m amending the Law on munity said that the reason for the slow Aliens soon. Mr. Andres Kollist, response to the 12 July deadline was Director-General of the Citizenship and that temporary residency permits would Migration Board of Estonia, announced mean a loss of social privileges. The Law that the total number of Russian citizens on Aliens stated that those who lived in the living permanently in Estonia as of 15 countiy without residency permits M ay 1995, was 71,700. He also quoted a would lose the right to privatize their figure of 50,000 as representing the apartments and the right to receive certain number of illegal residents in Estonia. benefits such as free medical insurance According to Mr. Kollist, the present and child support. Estonian Law on Aliens is harmful since it encourages some former Soviet non- Attempts were made by the new Estonian citizens to obtain Russian citi­ centre-left government to propose zenship. As a result, Narva has more amendments that would give a second Russian citizens than Estonian citizens. chance to those who missed the deadli­ He also expressed his concern regarding corruption m the Citizenship and tough foreign pohcy statements by Migration Board. Indeed, a former Russian officials. He also accused Prime Minister had been arrested for Estonia and Latvia of a "deliberate policy allegedly bribing officials to issue of banishing ethnic Russians.” Two days Estonian passports for Russian business later, after inquiries by several Foreign associates, though this charge was drop­ Ministries as to "clarification” of his ped on the grounds of entrapment - remarks, Mr. Kozyrev attempted to according to some critics, on the downplay his assertions by stating that grounds of celebrily. there was nothing new in his comments and that he had been saying the same If all this sounds too depressing, let thing for five years. me quote a poll taken of ethnic Russians living in Estonia on 13 April 1995: only 2 percent stated they wished to emigrate Latvia elsewhere; more than half stated that they had never witnessed any inter-eth­ Whereas m Estonia most Russian nic conflicts; 87 percent stated that they speakers are concentrated m Tallinn and had never taken part in such conflicts. in the Northeast region, m Latvia they Only 9 percent stated that their greatest are spread over the seven largest cities, concern was ethnic tension between where they form more than 50 percent Russians and Estonians and only 8 per­ of the inhabitants.12 They belong to seve­ cent said that the interests of ethnic ral distinct groups: 1) bureaucrats from Russians in Estonia were being infrin­ the leftover Soviet regime and ged upon, and that they were concerned Communist Party; 2) the leadership and about this problem. About 66 percent workers of the militaiy-mdustrial com­ believed Estonia must remain indepen­ plex built by the Soviets after World dent in order to ensure successful deve­ War II; 3) retired military and KGB lopment. men with their families; 4) Soviet style "fortune hunters” of whom 40,000 arri­ But five days later, (18 April) ved in Latvia every year (during the Russian Foreign Minister Andrei 1960’s, 1970s and 1980’s) and 30,000 Kozyrev stated at a Russian Defence left, leaving behind abandoned children and Foreign Pohcy Council meeting in and grandmothers; 5) some dissidents Moscow that Russia might use military and intellectuals for whom Riga meant force to protect the 25 million ethnic "Near Abroad” even during the Soviet Russians living abroad, adding that era; and 6) a callous criminal/entrepre­ there were "other means of protecting neurial element locally called "mafia.” Russians abroad as well,” namely diplo­ All of these present not only political but matic, political and economic pressure. also economic problems - as opposed to This comment was only one in a series of those ethnic Russians and other minorities

12 Of the 2.7 million inhabitants in Latvia, 54% are Latvians (diminished from 75% prior to WWII). During the Soviet era, Latvia's capital city Riga was an important Soviet administrative, indus­ trial, and military center. Other Latvian towns were popular destinations for Soviet mihtaiy and KGB retirees, who were given housing preferences at the expense of the local population. who have lived in Latvia for generations Latvia to the virtual exclusion of the and fit in every walk of life without diffi­ natrve language, Latvian. Persons culty. attempting to carry out normal business in Latvian were subject to verbal and phy­ Due to World War II and the occu­ sical abuse; 4) education: a bizarre ver­ pying Nazi and Soviet regimes, Latvia sion of history was taught whrch meant lost 35 percent of its original inhabi­ that economics, philosophy, and political tants. Of these, 232,000 perished in scrence were replaced by Marxism, Soviet and Nazi death actions, while while religion was forbidden. Educators some 331,000 fled to the West or never subservient to the Soviet regime were returned from labour camps and terms placed in leading positions, affecting of exile.13 every level of schooling;14 5) private pro­ perty: the Soviets confiscated all private The Soviets, after occupying the property and bank accounts. country, set up their own rules with consequences that reach to this veiy As Latvia regained independence, day. Discrimination against local inhabi­ and the new government started to tants manifested itself m various areas: redress these injustices, strong objection 1) leading positions in the government, was heard not only from the people Party, and State enterprises were given involved but also from Moscow. The to outsiders and Latvians were not to be arguments against the Law on trusted. Some of these former bosses Language, the Citizenship Law, and the have used their positions to expropriate Law on Aliens were almost the same as properly and have become "business­ those used against the Estonians a year men, ” sometimes causing havoc in earlier. International human rights Latvia’s budding economy. Above and authorities urged Latvians to "let beyond leadership positions, most bygones be bygones” and to be "gene­ Latvians were also barred from techni­ rous.” They completely disregarded the cal careers in occupations deemed "sensi­ fact that large groups of unassimilated tive” or involving contact with forei­ and hostile people previously employed gners; 2) housing policy: military in the Soviet military-industrial complex personnel, including retirees were given had become unemployed. The factories, priority for housing. Modern housing following the advice of the International was built only for newcomers from other Monetary Fund, had been closed - no Soviet republics; 3) language use: the similar facilities on that scale are plan­ Russian language was obligatory m all ned for Latvia in the foreseeable future spheres of official and commercial life in since Latvia lacks natural resources,

13 In the hinterlands of Siberia live an estimated 200,000 Latvians (with no Latvian schools, press or radio). Many of them were forcibly deported in 1941 and 1949 during mass actions. Some were sub­ ject to internal exile after labor camp terms. The Russian Government impedes their return to Latvia by refusing to distribute information and even by spreading disinformation among them. 14 For example, the 1995 UN Human Rights Committee Annual Report regrets that Latvia lacks appropriately educated judges. Experience in international law is particularly rare. domestic energy sources, and markets Large numbers of "Russian-spea- for heavy industry. Some of these enter­ kers” refuse to get involved in suppor­ prises could, however, be salvaged and ting the Moscow line. The vociferous reopened in Russia if the right investor groups accusing Latvians of human could be found who would be willing to rights violations are usually led by ex­ finance the transfer. That would elimina­ Soviet army officers. Some of them are te the problem of this work force having retired and others just "privatized them­ to learn another language, boost the selves” by discarding their uniforms and Russian economy and relieve Latvia of a buying false passports. It is unfortunate structural unemployment problem that that Latvia - urged on by the West - was it cannot easily solve. Western compas­ pressured into acceding to Russian sion for the minorities caught in these demands regarding residency rights for rapid developments would be much ex-Soviet army and KGB officers, in more appreciated if the Western coun­ order to reach agreement on a Russian tries would organize an emigration drive troop withdrawal plan. The withdrawal and absorb a few hundred thousand of was virtually complete by 31 August the Russian industrial workers now 1994, but the terms were not popular. living in Latvia. They would make good There is a strong but indirect connection immigrants - hard workers, fairly well between the signing of the agreement at educated, happy to resettle with a pro­ the beginning of M ay 1994, and the top­ mising future. The remainder would pling of the Latvian Government in mid- eventually be successfully reintegrated July. in the local economy as it restructures. It is the sheer size of this artificially crea­ There is a more direct connection ted minority, rather than any discrimina­ between this agreement and the restric­ tion against them, that creates the main tive Citizenship Law passed on 22 June problem. 1994. Various drafts of this law had been discussed by the Latvian Parliament As a rule, Latvians like foreigners ("Saeima”; before that, the Supreme and believe “foreigners are good for Council) for the last four years. At first business.” Before World War II, the there were four proposals submitted for minority laws were very liberal by pre­ the Citizenship Law. One promoted the vailing standards. Even today, Latvians "zero-option”; two others, varying only are quite friendly to what they term in detail, finally resulted in the adopted "real minorities” that include earthquake law; but the fourth was the strictest survivors from Armenia, Vietnamese which proposed to expel everybody who textile workers, Greek civil war had come to live in Latvia during the orphans, the traditional Polish and Soviet occupation (since 1940). Jewish minorities, the Baltic Germans and Old Believers (bearded Orthodox Consideration of the Citizenship Russians who fled the Russian heartland Law, debated by the Saeima during the to escape religious persecution, settling fall of 1993 and prior to that by the in depopulated areas of Estonia and Supreme Council three years earlier, Latvia after the destructive Russian- was expedited by the signing of the Swedish war of the early 1700’s). Latvia-Russia treaties on troop withdra­ wal. A compromise version sponsored A number of restrictions on who may by the two centrist political parties be naturalized were included in the law. (Latvia's Way and Latvian Farmers Persons cannot be naturalized if: they Union) was tentatively adopted on the have used extra-constitutional methods first reading on 26 November 1993, to campaign against Latvian indepen­ incorporating many provisions of an dence or democracy; have been convic­ alternative draft by the opposition ted of expressing totalitarian ideas; are conservative Latvian National officials of a foreign government or Independence Movement. Termed by serve in a foreign armed force. The law Saeima Human Rights Commission restricts Latvian citizenship rights for Chair Mrs. Inese Birzniece (LC) as “the Soviet military retirees and former KGB best possible compromise we could hope operatives, and it would limit the natu­ for,” the legislation was debated and for­ ralization of all foreign-born resident mally adopted on the second reading on 8 aliens to not more than 0.1% of the total June 1994. This version of the number of Latvian citizens annually. Citizenship Law was presented to offi­ cials of both the OSCE and COE for Naturalization will begin immediately their review prior to final approval. The for a number of categories eligible for international experts rejected the natu­ early consideration. These include: all ralization limits on foreign-born non­ ethnic Latvians and Livs (an ancient and citizens and demanded that Latvia strike almost extinct Finno-Ugric minority that provision or otherwise, Latvia living in Latvia); all Estonians and would not be accepted as a member of Lithuanians who have lived in Latvia for the Council of Europe or European at least five years; Latvian language high Union. school graduates, who have lived in Latvia at least five years; those married Prime Minister Valdis Birkavs to Latvian citizens for at least ten years pushed to limit debate, and managed to who have lived in Latvia for at least five secure final approval before the Saeima’s years; and other special cases. summer recess, so the law was adopted on 21 June. To be naturalized in the general order, an applicant must have spent at The law reasserts the citizenship of least five years in Latvia (starting 4 May all those who were Latvian citizens on 1990); have knowledge of the Latvian 17 June 1940 (the date Latvia was occu­ language, Constitution and history; have pied by the USSR) and their descen­ a legal source of income; and pledge an dants. All others must go through the oath of loyalty to the Repubhc of Latvia. prescribed naturalization process. The Persons satisfying these requirements law also restricts dual citizenship. In an are then placed into a queue according exception to this rule, citizens and des­ to their date of birth. All resident aliens not cendants who went into exile and could bom in Latvia (estimated at approximately not return to Latvia between 17 June 500,000) would be able to apply for 1940 and 21 August 1991, will still be naturalization on 1 January 2000. able to register as citizens through 1 July 1995 and maintain their citizen­ After an extended debate, the law ship. was passed as proposed by a vote of 66-11, with three deputies abstaining. During legally registered and have not taken on the debate a number of amendments any other citizenship since 4 M ay 1990. concerning the naturalization limit were proposed and rejected, first deleting, A third fundamental amendment then reinstating it. Prime Minister recognizes as Latvian citizens all per­ Valdis Birkavs, foreseeing complica­ sons who have graduated from a full tions, asked President Guntis Ulmanis course of instruction at public schools not to sign the law but rather to send it teaching only in Latvian at the primary back to the Parliament for a review. The and general secondary levels. President did just that, recalling the Saeima from its summer recess at the The deputies also agreed that, in end of June. Many lawmakers, howe­ reviewing naturalization applications, ver, resented being called into special Latvian language examrnation require­ session and gave vent to their displeasure ments would be waived for those indivi­ rather than dealing with the govern­ duals who had gained a general, secon­ ment's agenda. dary specialized, higher or vocational education in the Latvian language; Another extra-ordinary session had group 1 invalids who have been granted to be called on 22 July and this time the classification on a permanent basis; they eliminated the quota. Latvian-spea­ Group 2 and 3 vision, hearing and speech king non-citizens will be naturalized impaired individuals, and all persons over a ten year period beginning in who had legally settled in Latvia prior to 1995. During the first five years, quali­ the Soviet occupation, as well as those fied Latvian-born non-citizens will be individuals who prior to the Soviet occu­ naturalized, according to age, with pation were citizens of Estonia or younger categories becoming citizens Lithuania. The Saeima did, however, first. During the second five years, quali­ reject a proposal to exempt from Latvian fied non-Latvian born non-citizens will language tests all other persons over 65 become eligible for naturalization, also years of age. by age category. The new Latvian Citizenshrp Law went into effect 11 The Latvian Citizenship Law was August 1994. frowned upon by Moscow, but accepted by international experts. Mr. Miguel A. O n 16 M arch 1995, the Latvian Martinez, the President of the Council Parliament adopted several amendments of Europe’s Parliamentary Assembly, to the Crtizenshrp Law. Now, practically visited Riga on 11 January 1995, and all ethnic Latvians living in Latvia have, stated that Latvia’s Citizenshrp Law and through the process of registration (to proposed Law on Stateless Residents be completed by 31 March 1996), been met European Parliamentary standards. recognized as Latvian citizens and do However, he also urged Latvia to ratify not have to ask to be naturalized. Also, relevant international human rights and citizenshrp of all women and their des­ minorities' rights instruments. cendants whose permanent place of resi­ dence rs Latvia and who had lost their The backlash against laws conside­ citizenship by marrying a foreigner has red too lenient to Russian speakers was been renewed, as long as they have been evident at local and municipal elections (held on 30 May 1994): the conservative Livians. They were all citizens of Latvia parties, asking for stricter laws, won a before World War II, or their descen­ majority. Ever since, the Latvian dants, and therefore automatically became Government has had to correct locally citizens of Latvia under the new Law. passed laws trying to take away some rights of non-citizens. For example, on On 28 July 1995, the first 33 new 16 January, Minister for State Reforms citizens swore allegiance to Latvia. Of Vita Terauda, suspended legislation passed them 19 are from Riga, 10 from Rezekne by the Riga City Council proposing to and 4 from Talsi. They are now one step provide welfare payments only to away from receiving their Latvian pas­ Latvian citizens. This ordinance openly sports. Among the first group of new contradicted a Latvian law permitting citizens are: Mr. Aleksandrs Kolbins, a all permanent residents to receive welfa­ soloist from the State Opera and Ballet re support. company and Mr. Teodors Tverjons, Chairman of the Association of Aside from reacting to such annoying Commercial Banks. It is estimated that incidents, many international human 5000 new citizens will be able to vote at rights organizations have wrongly clai­ the next parliamentary elections taking med that Latvian citizenship is only place during the fall of 1995. being granted to ethnic Latvians. This mistake is often made even by senior Having had such a hard time adop­ officials. For example, on 2 M arch 1994, ting the Citizenship Law in Latvia, US Secretary of State Warren Members of Parliament were even more Christopher, testifying before the US reluctant to start discussing the Law on Senate, talked about one million Aliens. In fact, at the time of writing Russians living in Latvia having a legiti­ (August 1995) it has not yet been adopted. mate complaint... The Latvian Government has presented the following But the first important steps were taken on 12 April 1995, when the Saeima adopted figures: there are a total of 722,486 ethnic Russians in Latvia; of these fully 38 per­ the part of the law dealing with non-citi- cent are automatically citizens of Latvia zens who are permanent residents of and have full voting rights, because they Latvia, granting them full personal, eco­ were deemed to still have Latvian citi­ nomic, and other rights as enjoyed by zenship or to have inherited it. At the Latvian citizens. The new law allows end of 1994, 21.32 percent of Latvian them the full freedom to choose their citizens were not ethnic Latvians, among place of residence - not a self-evident them 289,106 (16.28 percent) Russians; right from the point of view of ex-Soviet 20,791 (1.18 percent) Belarusians; 4151 citizens - and to leave and re-enter (0.23 percent) Ukrainians; 7253 (0.41 Latvia using special non-citizen pas­ percent) Lithuanians; 39,522 (2.22 per­ sports. The law does not apply to cent) Poles, 6828 (0.38 percent) Jews; Russian military personnel or military 6794 (0.38 percent) Gypsies; 987 (0.06 retirees. The provisions are meant for percent) Germans; 1337 (0.08 percent) former Soviet citizens who are registe­ Estonians, plus a smattering of red as permanent residents in Latvia, Armenians, Georgians, Tatars, Azeris, and have lived in Latvia prior to July Moldovans, etc., and 203 (9.01 percent) 1992. The legal status of persons who arrived in Latvia after July 1992 is The first part of the Law on Aliens, determined by the law on their arrival containing the provisions described and stay in Latvia as “foreigners” or as above, was adopted with the vote count "stateless persons.” 55:9.

The law on the status of former Implementation of the Citizenship Soviet citizens guarantees its subjects Law, the Law on Aliens (as well as lan­ the customary rights and freedoms as guage law, various regulations on mino­ provided by the constitutional law on rities, repatriation, etc.) depend on the the rights and duties of an individual integrity of the officials interpreting the and a citizen. The holder of a non-citizen law and dealing with the public, as well as passport also has the right to freely on the non-citizens themselves. Last choose a place of residence in Latvia and summer, I looked into a few controver­ to receive a spouse, children, and sies mentioned in some NGO reports as parents from abroad. S/he cannot be “human rights violations” in Latvia. One expelled from Latvia; s/he has the right involved 13 girlfriends left behind by to preserve her/his native language and Russian soldiers. The women were culture; and to receive the assistance of a denied permanent resident status becau­ translator in a court trial. se they had not possessed it on the date set by the law. It does sound harsh, but the officials in question had acted in accor­ To receive a non-citizen passport, an dance with the letter of the law, and individual will have to present her/his similar laws certainly exist in many Soviet passport with a written-in identity other countries. code as well as to testily with a signature that s/he is not a citizen of any other country. Stateless persons (individuals Another report on human rights in Latvia stated that non-citizens were only who have never been citizens of any getting 90 percent of the normal rate for State and were permanently registered unemployment assistance. After a tho­ in Latvia before July 1992), will also rough check, this allegation proved to be have the right to receive this passport. untrue. All permanent residents in Latvia - citizens and non-citizens alike - According to the law, only those indi­ get the same amount of unemployment viduals who are not retired Russian ser­ compensation. The accusation apparent­ vicemen and who have not lived illegally ly started with Russian mothers registe­ in apartments built for the use of the ring their children as “unemployed” as Russian army, can be registered on the soon as they graduated from high official registry of inhabitants. Term- school. They drd m fact receive 90 per­ stay permits are thus annulled for per­ cent of the usual sum - as provided by sons who cohabited with ex-Soviet sol­ the law for persons who had not pre­ diers and were never legally registered viously been employed or who had not as residents - this affects a small number been employed for some time. (This part of persons now living as squatters in of the Unemployment Law is meant for military residences who were abando­ people returning from military service, a ned by former boyfriends or relatives. long term in a hospital or sanatorium, prison, etc.) Why were only Russian mothers complaining, I asked. Because for some reason Latvian mothers did not register their high school graduate chil­ dren as unemployed for the summer before college, was the answer.

I also went to see Mr. Olafs Bruvers, the Minister of Human Rights. He clai­ med to have his hands full trying to look into every Russian complaint. He had found that some officials - often them­ selves ethnic Russians - at times misin­ terpreted the law, intentionally delayed registration of applicants, demanded “gifts”, or were remarkably inefficient. In addition, a number of complarnts had no real basis. Did he also try to redress complaints by Latvians, I asked. No, he said, Latvians did not come to him with complaints so he had no official cause to look into their cases. When Latvians started to trust me with long tales of fighting bureaucracy (a leftover from the Soviet era) I asked why don’t they go and complain? They did not answer, just looked at me with their immensely tired, sad but patient eyes.

As a rule, Latvians love law and order. They take pride in being fair. But at times these characteristics are dimmed by fear of the intrusive unpredictable Neighbour to the East. Nevertheless, I have faith in Latvia’s future. The people there realize they are experiencing a chaotic and difficult period in their lives. At the same time, they know they have enough resilience to survive. The Rud^ian Armed Intervention in Chechnya and it.* Human Right,* Implication,*

Nicolas M. L. Bovay *

I Introduction II Historical Background

On 30 November 1994, Russian The history of Russo-Chechen anta­ President Boris Yeltsin issued a decree gonism is an ancient one. Mr. Dudayev "On Measures for the Restoration of the merely opened a new chapter in hostili­ Constitutional Order and Enforcement ties when he declared his land of one- of Laws in the Chechen Republic.”1 On and-a-half million people rndependent in 9 December 1995, Mr. Yeltsin issued the December 1991, amid the confusion order for Russian armed forces to enter caused by the collapse of the USSR. The the secessionist north Caucasian overwhelmingly Sunni Moslem country, Republic of Chechnya in order to force­ on the northern slopes of the Caucasus fully remove the fiercely separatist regime mountain range, was colonised in 1867 of Chechen President Dzokhar as part of imperialist Russia's drive to the south. The bid to colonise the region Dudayev. On 11 December, after having started some 40 years earlier when violently crushed barricades and road Russia, reluctant to allow independent blocks in the neighbouring Republics of Caucasian entities to occupy a wide strip Ingushetiya and Dagestan, 40,000 of terntoiy between itself and newly Russian army and interior ministry acquired Georgia, started settling armed troops with armoured vehicles crossed Cossack volunteers there. The establish­ into northern, western and eastern ment of Cossack settlements triggered Chechnya simultaneously. Incommensurable resistance almost eveiywhere in the human suffering ensued, including Caucasus and especially amongst killings, extrajudicial executions, tortu­ Chechens, brought up to be warriors, re, and other gross violations of human who struggled more fiercely than others rights of civilians and mihtaiy person­ for independence. The Caucasus War of nel, as well as huge destruction of public 1817-64, which ultimately brought and private property and annihilation of Chechnya under control, claimed thou­ the local economic and social infrastruc­ sands of lives. But, even then, Saint tures. Petersburg found it difficult to effective-

v Nicolas Bovay LL.B., MA, Press Officer of the International Commission of Jurists, was former­ ly a journalist specialized in Central and Eastern European topics. He has reported extensively on the former USSR, and particularly on the Caucasus. The views expressed are solely those of the author. 1 Novoje vremja, No. 14. ly assert its imperial rule over a mountai­ Chechens still remains there. It is esti­ nous region traditionally governed by mated that there are 300,000 Chechens clans and vendetta. And then it took in Syria, Iraq and especially Jordan.2 another 17 years for the Bolsheviks, who became Russia’s new rulers in In August 1991, during the abortive 1917, to cast a lasting imprint on hardline coup d’Etat launched in Chechnya. The clans and Islam were Moscow, the leaders of the Soviet-era persecuted, and the use of local lan­ unified Chechen-Ingush Autonomous guages discouraged, but never defeated Republic clearly voiced their unadulte­ in Chechen hearts. rated support for those plotting against Mr. Gorbachov. After the failure of the In 1943, when German troops rea­ putsch, the discredited Chechen Soviet ched the outskirts of Grozny, Chechen executive was replaced by a temporary separatists launched a rebellion against council with the implicit blessing of Mr. Soviet dictator Josef Stalin. Ayear later, Yeltsin who, at that time, was gaining and after the reversal of fortunes that political momentum on the Moscow followed the Soviet victory of scene and preparing the demise of the Stalingrad, Stalin took a terrible reven­ U SSR en coutuiM. ge. He exiled half a million Chechens and Ingushi to the wilderness of But Russia’s plans for Chechnya failed Kazakstan. Almost 200,000 people are when Mr. Dudayev, a Soviet air force believed to have died as a result of this pilot who had been based in Estonia and enforced exile, which ended only in had militated for the Baltic country’s 1957. Treated as “enemies of the independence, returned to Grozny and people," the Chechens and more than a succeeded in uniting his people under million deportees from other ethnic the banner of independence from minorities such as the Volga Germans, Moscow. In October 1991, Mr. Crimean Tatars and Kalmyks, but also Dudayev overthrew the temporary Balts and Ukrainians, barely eked out a council in a bloody mutiny and was sub­ living as farmers or mine workers m sequently elected in Chechnya’s first Stalin's labour camps. presidential elections which remained unrecognised by Russia. In November It was until Soviet leader Nikita 1991, Mr. Yeltsin made a first attempt at Krushchev’s denunciation of Stalin m regaining control of Chechnya by 1957 that the attempt to wipe out announcing a state of emergency and Chechnya as a nation was officially dispatching troops to reimpose Moscow admitted to have been a mistake. The rule. The attempt failed. Faced by other autonomous republic was reinstated, problems Russia then adopted a lawez enabling some people to return home faire policy over Chechnya that was to from the wild steppes of Kazakstan. To persist for two years, until the summer date, a diaspora of more than 100,000 of 1994, when Yeltsin’s government

2 One seat in Jordan's 80-seat parliament is reserved for a Chechen. announced that it would no longer tolerate ethnic minorities within the Federation separatist Chechnya’s harbouring of itself, including the Chechens, have lost “criminals." no occasion to denounce what they undoubtedly perceive as “Russian impe­ rialism, chauvinism and jingoism." In this context it has become blatantly Ill Official and Occult Reasons for apparent that the Soviet paradigm mere­ the Armed Intervention ly served as a justification for Russian Officially, Mr. Yeltsin took the deci­ expansionism and that the Soviet State sion to enter Chechnya, which since of the past was just a super Russian 1991 had been under the control of Mr. State, dominated by the centre, Dudayev's administration, “to prevent Moscow, m which all constituent repu­ the disintegration of the Russian blics remained subdued to the Russian Federation" and to assist in the “struggle capital. The present Russian State has against organized crime" - in this not shown that it wanted to depart from context it should be remembered that the old imperial scheme and psyche. Russian official iconography and popu­ list imagery have long portrayed the In the months that followed the Chechen people as an altogether unbe­ demise of the USSR, Russia lived a brief coming and rather awesome mixture of Lune de mieL with the West, which corres­ mafiosi and uncouth montagnardd. ponded to an interlude of uncertainty concerning its perceived role in the post But the reasons given by Mr. Yeltsin Cold War world. Illustrative of this period do not explain everything. Russia's his­ is the pro-Western stance it adopted in tory has nearly always been dominated the Gulf War of 1991. Since then, howe­ by the will to subjugate other peoples ver, Moscow has adopted a more asserti­ and nation States in the somewhat unde­ ve approach to its international rela­ fined geographical sphere possessively tions. In the months that preceded the described by Russians as "our near armed assault on Chechnya, Russia’s abroad.” Under the guise of security and foreign policies became “Panslavism," Russia has also recurrent­ increasingly motivated by the ambition ly demonstrated eagerness to “reunite," to be seen and treated again as a super­ or rather subsume, other Slavic peoples power. As The Economist aptly indicated (Ukrainians, Belarussians, Poles, etc.) on 7 January 1995, “[T]he military esta­ under its "protective" realm, believing blishment was keen to show that it can that they are no more than “little still do anything the Americans can do, Russians," artificially estranged from the and saw Chechnya as Russia’s Haiti. "great motherland". In the Caucasus, Thus, the temptation to use force." however, where people are not of Slavic descent, Russia's drive for conquest was Another occult reason for the inva­ motivated more by the will to pacify sion of Chechnya may have been what it condescendingly considered to Russia’s ambition to keep a high degree of be uncivilised barbarians. The end result control over the region’s plethoric oil is that both Russia’s neighbouring newly assets. Oil-rich Azerbaijan, which became independent States and the numerous independent m 1991, has demonstrated great eagerness to further distance itself also routed attempts by the Russian- from Russia’s rather cumbersome backed oppositional Provisional Council embrace over the "near abroad.” And, to take Grozny towards the end of fearing that if Azerbaijan was to rejoin November 1994, dealing it a sharp psy­ either Turkeys or Iran’s sphere of chological blow. Incensed by their suc­ influence, because, as The Economist further cessive fiascos in attempting to regain explained, "with Azerbaijan goes control control of Chechnya, the Russian of the eastern end of the Caucasus and government and military establishment most of the oil reserves under the resorted to armed action. Caspian [sea],” Russia has been trying to forcefully woo Azerbaijan to agree to Both sides seemed to brush aside the pump its oil through Russian pipelines, option of a political settlement to the rather than through Iran. The problem question as their positions appeared as for Russia is that the pipeline passes irreconcilable as ever. The head of the through Chechnya and that losing Dudayev delegation to talks with Chechnya would also mean losing essen­ Russians was quoted on 13 December tial economic resources.3 Chechnya 1994 as saying: " It is useless to speak expert Martin Me Cauley, head of the with the Chechen people in the language social sciences department at London of ultimatum.” Increasingly hardline University’s School of Slavonic and East Russian Foreign Minister Andrei European Studies told Reuters on 16 Kozyrev told journalists after meeting December 1994 that a key reason for with Swedish Foreign Minister Lena Russia’s campaign to bring Chechnya, Hjelm-Wallen on 13 December: "If which produced 2,6 million tonnes of there is no disarmament in Chechnya, crude oil last year out of the Russian the Russian State will be obliged to use output of 354 million tonnes, was econo­ as much force as is required to establish mic: "Chechnya would be of no impor­ order.” Russian planes then pounded vil­ tance if not for oil. If it was a barren hill­ lages near Grozny. On the same day, side, I don’t think Russia would be Russian troops fired at a carload of jour­ bothered.” nalists heading for Chechnya.

As Russian troops painstakingly IV The Unravelling of a Tragedy: streamed towards Grozny they encoun­ A Chronology of Events tered unexpectedly determined resistance from Chechen combatants. Massive Tension between Moscow and bombing raids over Grozny and other Grozny had been building up for several neighbouring Chechen towns, hamlets, months. Previous attempts by the and other human settlements ensued. Russian military to take the capital of Chechens remained defiant; Reuters Chechnya had resulted in dismal failure quoted one combatant as saying: "We and humiliation. Chechen combatants can’t lose. Either we win, or we die and go

3 See “The Chechen Trap/' in The Economist, January 7 1995, at. 25. to heaven. All any one of us needs is visit the beleaguered republic. But Allah - and two machineguns." bureaucratic delays and alleged poor weather conditions held up deployment After manifestations of lukewarm of the UNHCR team for two more criticism from some Western govern­ weeks. Later, the "weather” pretext pro­ ments, Mr. Yeltsin promised on 27 ved to be wholly fabricated. Similarly, December to “rule out bombing that can an ICRC official also complained about result in casualties among Grozny’s pea­ Russian hampering of the relief process: ceful inhabitants.’’4 But the day after this “[W]e can’t say whether it's deliberate promise, the Russian air force dropped red tape or the usual disorganization in more bombs in Grozny. One of them hit the former Soviet Union. [But] the an orphanage, but fortunately the 47 result is the same.”6 children living there had been safely rushed into the shelter. On 4 Januaiy, Mr. Yeltsin once again ordered a halt to the bombing. On Near Year’s Eve a Russian ons­ However, massive bombings resumed laught on Grozny culminated once again on 5 January.7 in total military disaster. Russian air bombing raids and artilleiy barrages on Criticism of the Russian intervention in Grozny intensified, taking a heavy toll Chechnya has focused on two points. on the city’s population. Unofficial esti­ Firstly, the indiscriminate bombing of mations of the number of casualties all civilian areas and, secondly, gross established figures in the thousands. A human rights violations, including extra­ massive population exodus followed.5 judicial executions, mock executions, torture, beatings, forced disappearances, Conscious of the aggravation of the massacres and the use of anti-personnel situation, the Russian Federal Migration land mines. Service had requested the UN, on 27 December, to assist internally displaced (a) The Indiscriminate Bombing persons from Chechnya. The United o f Civilian Areas Nations High Commissioner for Refugees (UNHCR) quickly responded O n 6 January 1995, the IC J reacted on 30 December by forming a mission to by publicly denouncing the indiscrimi-

4 “What's Wrong With Yeltsin,” In. Time, 9 Januaiy 1995. 5 According to figures provided by the International Committee of the Red Cross (ICRC) in Geneva, there were 400,000 people living in Grozny, the capital of Chechnya, before the war star­ ted. In mid-January 1995, after intense bombing of Grozny, the population of the city was estima­ ted at 40,000. At the end of May 1995, as fighting receded, 250,000 were living in the shattered capi­ tal. See "Facts and Figures,” ICRC Magazine Challenged, June 1995, at. 6. (These estimations correspond to those also provided by the UNHCR). 6 “Russian Red Tape Foils Chechnya Relief,” in International Herald Tribune, 19—01—95. 7 See Robert Orttung, “Chechnya, A Painful Price/’ in Transition, Vol.l, No.3, 15 March 1995, at 2- nate use of force exerted by the Russian days later that human rights groups dis­ army against civilian targets m and played “bias” by denouncing high civi­ around Grozny which caused the death lian casualties in the fighting. “High of thousands of Chechen and Russian losses were inevitable," he said, adding: civilians in just three weeks. It had beco­ “ [W]e cannot fail to notice the inade­ me veiy clear, stated the ICJ in a press quate and hasty reaction of a string of communique, that “the Russian army political activists and organizations... violated the right to life of unarmed civi­ We observe a syndrome, a reflex reac­ lians on a massive scale.” A Reuters tion and a return to old stereotypes in report, dated 12 January 1995, gives an reacting to events in our country. ”8 idea of the degree of violence exerted on the population of Chechnya: Governments around the world were then gradually abandoning their initial “Russian troops on Thursday reluctance to criticise Russia as the scale [12 January] launched their of fighting reached hitherto unpreceden­ heaviest artillery bombard­ ted proportions and new reports of ment yet of the smashed human rights violations perpetrated on a Chechen Capital Grozny (...) massive scale emerged day after day. and Moscow [is] sending in For instance, the German Foreign extra troops for a decisive stor­ Minister told Reuters, on 12 January ming of the city. Reporters 1995, that “the means used [by Russia] who spent the night in Grozny to solve the problem deserved criticism, said heavy shelling resumed at 8 massive criticism,” and Mr. Jesse a.m., marking the expiry of a Helms, the Head of the US Senate 48-hour ceasefire declared by Foreign Relations Committee, said that the Russian side. The truce Russia risked losing US foreign aid if had been violated by both the “brutality” continued in Chechnya. sides from the start. Civilians French Foreign Minister Alain Juppe [took refuge] in cellars to esca­ also castigated Moscow in unheard of pe the relentless assault. terms. Mr. Boris Oleinik, Chairman of Streets littered with rubble the Foreign Relations Committee of the from earlier attacks, were all Ukrainian Parliament, stated that “inter­ but deserted. Hundreds, if not nal conflicts in the former USSR should thousands, of people have died be resolved peacefully and Russia had in Grozny in a month of intense violated this principle.”9 fighting ...” But international criticism did not Russian Foreign Ministry spokes­ seem to have much effect on Russia’s man Grigory Karasin told Reuters a few militaristic stance. On 11 January, Mr.

8 Reuters News Service, 12 January 1995. 9 This approach towards Russia was adopted by all the newly independent States of the former USSR, including pro-Russian Belarus, but with the notable exception of Georgia, which has been confronted with a roughly similar problem in secessionist Abkhazia. Dudayev announced that negotiations gled bodies of a woman and could bring the war to a close. He no her two young daughters longer insisted on the preliminary sprawled on the floor of a retreat of the Russian forces and decla­ house as her stunned husband red that he was ready to renounce inde­ watched. ” pendence for greater autonomy. A week later the Russians launched another By that time Chechen combatants assault on the centre of Grozny and were moving out of Grozny and heading finally captured Mr. Dudayev’s presi­ for other areas of the republic. On 6 dential palace, amidst scenes of unimagi­ February 1995, the Russian military nable violence. On 22 January 1995, the headquarters hastily announced the end of independent Russian news agency resistance in the capital. However, it is Interfax reported that the corpses of 39 only on 21 February that the last attack on Russian soldiers carried from Chechnya to Grozny was finally launched. Since Russia’s military headquarters in then, however, the situation in Grozny Mozdok, in the neighbouring region of has remained catastrophic in human North Ossetia, showed signs of torture. terms. A report by Mr. Bindig of the Committee on Legal Affairs and Human Harrowing reports of human agony Rights of the Parliamentary Assembly of were dispatched by Reuters on 30 the Council of Europe (hereafter refer­ January 1995: red to as the "Bindig Report”), released on 29 Ju n e 1995, after a visit to Chechnya "Russian forces bombarded and surrounding republics in early residential areas of Grozny, June, confirmed that the situation in forcing terrified residents to Grozny remained precarious. A truly cower in cellars. People fled apocalyptic picture is rendered: underground as troops lobbed shells and missiles onto civilian “Most houses and apartment districts in their latest offensive buildings, especially in the to crush secessionist rebels. centre, are destroyed, or at [Around] 150,000 people, least badly damaged by bombs mostly old, sick women or chil­ and fire. What has not been dren, were reported hiding in destroyed has, more often than the cellars of Grozny. [A not, been looted. Putrefying Russian Television station] corpses still remain in the cel­ broadcast footage from a village lars of some of the buildings, 50 km south of Grozny sho­ and the risk of epidemics in the wing w hat it said was the after­ city is rising as the summer math of a Russian air strike on a gets hotter. Rubble, dirt and nearby rest camp. The man­ dust seem to be eveiywhere.”10

10 Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe, Report on the Human Rights Situation in Chechnya, Rapporteur Mr. Bindig (Germany- Socialist Group), Strasbourg, 29 June 1995 [AS/Jur (1995) 22], at 2. Hereinafter referred to as the "Bindig Report.” (b) Arbitrary Arrests, Extrajudicial Chechnya. And reports of abuses beca­ Executions, Mock Executions, me more and more abundant towards Torture, Beatings, and Forced the end of January 1995. Under the title Disappearances "Russian Brutality in Chechnya Cited,” on 30 Jan u aiy 1995, the International Until the end of January, NGOs, Herald Tribune reported: Western governments and liberal Russian politicians had focused criticism "Russian security forces [alle­ about the war on Russia’s indiscriminate gedly wearing masks] are bombing of civilian residential areas. practising systematic incarce­ But corroborated accounts of violent ration, with civilians suffoca­ imprisonments and disappearances ted and shot to death, disabled appeared to substantiate new allegations in beatings and put through of systematic brutality. Such reports mock executions, according to appeared to indicate a turning point in non-combatants in Chechnya the war. recently released from one pri­ son camp. Some civilians have O n 30 Jan u aiy 1995, officials from also disappeared after being the Organization for Security and detained by Russian forces. Cooperation in Europe (OSCE), retur­ [Detainees] are given two ning from a fact-finding trip to choices: confess and be senten­ Chechnya, said the seven-week conflict ced to 12 or 15 years in prison, had produced widespread reports of or be shot. [ICRC officials] human rights violations and that the expressed concern about the scale of Russia's military action went reports, saying Russian offi­ beyond limits acceptable. "We have cials have not permitted visits received reports about human rights to detainees or released a list of violations on both sides before and those in custody.” during the conflict,” OSCE delegation head Istvan Gyarmati told the press. On 3 February 1995, the French The OSCE team visited a detention daily newspaper Le Monde reported near centre in Mozdok but could not confirm systematic torture of prisoners in the reports of torture there made public by infamous "filtration camp” installed by the Russian human rights group the Russians in Mozdok. The Mozdok “Memorial.” "filtration camp” was one in a network of "filtration points” set up by the The press was able to report more Ministiy of the Interior to “filter” com­ precisely on human rights violations in batants from non-combatants.11Le Monde

11 Ibid, at 12. According to the "Bindig Report”: "there is absolutely no legal base for [the] setting up of [filtration points] under Russian Law. The filtration points operate in a complete legal void; officially, they do not even really exist, since there is no base for their existence. For this reason, there are also no guidelines as to who could or should be taken there. The arrests are thus completely arbitrary - the Ministiy of the Interior troops can arrest and detain anyone they want in the filtration points. So, more often than not, ordinary Chechen men - civilians, not fighters - are "suspected” and taken to the fil­ tration points.” confirmed witness accounts cited in the and sometimes weeks, by masked and International Herald Tribune concerning drunken commandos (the infamous masked torturers in Mozdok. It was Spetdnaz) from the Interior Ministiy. It alleged that most of the detainees in the has been reported that militaiy "physi­ Mozdok “filtration camp” came from cians” were there to assess the effects of Grozny, where special forces of the torture on detainees. According to testi­ Russian Interior Ministiy forcefully monies, in Mozdok, up to twenty-two extracted people from their under­ detainees were parked in railway carria­ ground havens, often under the threat of ge compartments designed for six people using gas or hand grenades. Several and were given two bottles of water a reports indicated that grenades had, day for all. It has also been reported that indeed, been used against recalcitrant the detainees were coerced into signing civilians who refused to walk out of their documents recognizing that they were shelters. It was alleged that all men aged combatants. Most refused. Those who fifteen to sixty, who were not of Russian accepted were then, allegedly, taken to a origin, were afterwards separated from place where gunshots were then heard. the others - including their wives and However, it has been difficult to deter­ small children - and sent to Mozdok. mine whether the detainees had actually The men were then thrown head down been fired upon or not. The Russian into trucks one on top of the other. press reported several testimonies of Those who showed any sign of resistance men who had undergone the ordeal of were executed on the spot. After an mock executions.13 eight-hour journey to Mozdok some detainees had suffocated to death. According to the "Bindig Report,” which cited provisional figures from the According to testimonies recorded Russian NGO "Memorial,” at least by Mr. Serguei Kovalev’s Human Rights 2,000 Chechen men had been arrested Commission,12 trucks transported up to and detained in "filtration points” by the thirty Chechen detainees at a time. beginning of June 1995. The existence According to one such testimony, the of the "filtration points” also raised another special forces had, during a journey, problem concerning the administration opened fire against the detainees and the of justice in Russia - that of the duration truck arrived in Mozdok drenched with of imprisonment. It was alleged that blood. Le Monde reported that in some of the detainees had been held in Mozdok detainees were beaten for days, cells for one or two months. The “Bindig

12 Mr. Kovalev was formerly Human Rights Commissioner for the State Duma (the upper house of the Russian Parliament). He was removed from this post on 10 March 1995, after his many overt cri­ tiques of Russia’s intervention in Chechnya. He has been a human rights activist since the 1960’s and reported on repression of Soviet dissidents. Arrested in 1974, Mr. Kovalev spent seven years in a labour camp for "anti Soviet agitation and propaganda.” His criticism of the Chechnya war earned him the label of "enemy" by Russian Defence Minister Pavel Gratchov. 13 DeAmnesty International, 2 February 1995. Report” gives details of such cases In January, some international which would be too long to report in this NGOs expressed concern over the fact paper. It should be noted, however, that that Chechen fighters reportedly clai­ his report confirms that such lengthy med they took only Russian conscripts detention periods are illegal according to prisoner, and executed captured special Russian law. The Constitution foresees a forces troops. Amnesty International, in maximum of 48 hours m police custody particular, urged the Chechen authori­ and pre-trial detention, after which the ties to condemn publicly any executions, detainee must be brought before a to ensure that such actions not be tolera­ judge. ted, and to take effective steps to pre­ vent such actions.14 Human Rights Reporting on violations of human Watch-Helsinki also gave the example rights committed by the Russians has of Chechen fighters who stored ammu­ been comparatively easier than docu­ nition m an apartment building housing menting those perpetrated by the civilians which exploded when fired Chechens, assured both the "Bindig upon. It has also been alleged that Report” and Human Rights Watch- people had been carelessly killed by Helsinki. This state of affairs is partly Chechen fighters who did not know they due to the fact that it has been simpler were civilians running from one shelter for human rights monitors to travel inside to the next.15 Alleged violations of Russian-held territoiy than in Chechen human rights committed by Chechen strongholds. Interestingly, Mr. Bindig forces appear, however, to have been the found that most complaints directed exception rather than the rule. against the Chechen side were not connected to the armed conflict which It has been reported that a large broke out in December 1994. He noted number of Russian soldiers were victims that not only the Russian authorities, of human rights violations committed by but also Russian local inhabitants and their own hierarchical superiors. refugees complained more about the Corroborated media reports denounced unlawful character of Mr. Dudayev’s the sending of large numbers of unpre­ regime in the three years that preceded pared and untrained young Russian the conflict. The Russian authorities conscripts to the theatre of war where alleged that the Chechen regime had they predictably lost their lives.16 The practised a policy of “ethnic cleansing” same reports assert that entire units of against the local Russian population. To conscripts were not even informed that date, this allegation has remained unve­ they were being sent to Chechnya in the rified. first place. It is noteworthy that this

14 Amnesly International, “Riusia: AmneJty International RaufeJ Treatment of Captured Rud/ian Troops, ” 19 January 1995. 15 Human Rights Watch-Helsinki, War in Chechnya: New Report From theFieQ, Vol.7, No.2, January 1995, at 2. 16 Michael Mihalka, “Too arrogant, Too Hasty, Too Ill-Prepared,” in Traruitwn, vol.l, no.3, 15 March 1995, at.10. "clearly points to serious violations of Samashki had a population of 15,000 humanitarian law and human-dimension inhabitants, mainly farmers and artisans. commitments" the OSCE Member For three nights the little town was States subscribe to.17 pummelled by a barrage of fire from heavy ground artillery. Then came 3000 By 21 M arch 1995, after the fall of Russian soldiers spraying shells from Grozny, Russia had managed to gain their tanks and tossing grenades indis­ criminately into basement shelters. A control of the remaining Chechen stron­ journalist for the highly respected and gholds in the lowlands, namely the establishment British daily the Sunday towns of Shali, Argun, and Gudermes, Time*), reported from Samashki that psy­ forcing Dudayev’s combatants to the chopathic Russian troops had simply mountainous regions of southern, eas­ indulged in an orgy of violence after tern, and western Chechnya. But while having captured the small town: the nature of the conflict gradually changed from urban warfare to a hit- “Old people were gunned and-run type guerrilla conflict, Russian down without mercy as they troops persisted m committing serious emerged from cellars looking violations of humanitarian law against for water. Young men, whose civilians. Despite the retreat of Chechen only crime was that they were fighters to the mountains, “Russians of fighting age, were beaten, shelled civilian areas, indiscriminately tortured, and executed. Many fired on refugee columns, and looted and of the killers appeared to have wantonly destroyed civilian property in been on drugs: needles and their pursuit of elusive Dudayev figh­ ampoules littered the streets."19 ters.”18 As usual rn such cases, it has proved (c) The Alleged Samashki Massacre extremely difficult to verify the allega­ tions of human rights violations commit­ The alleged massacre committed in ted in Samashki, which was sealed off Samashki, in western Chechnya, bet­ by Russian troops for several days after ween 6-8 April 1995, will probably go the massacre took place. Journalists and down in history as the most outrageous human rights monitors who reached the and revolting criminal act perpetrated town after the ban had been lifted could by rogue Russian elements during the only rely on hearsay and the testimonies of Chechnya war. And as such, it deserves members of the families who were separate treatment in this paper. begrieved by the loss of their kin.

17 Michael R. Lucas, "The War in Chechnya and the OSCE Code of Conduct" in Hebinki Monitor: Quarterly on Security and Cooperation in Europe, Netherlands Helsinki Committee, at 42] 18 Human Rights Watch-Helsinki, Riufdia: Partisan War in Chechnya on the Eve of the W W II Commemoration, M ay 1995, Vol.7, No.8., at 2. 19 "Slaughter of the Innocents: Drug-Taking Russian Troops Massacre Women and Children in Chechen Town,” in The Sunday Timed, 16 April 1995, at 16. T

Concordant tales of survivors and houses cannot be considered a violation of Russian and international human rights international law. "If, however, only a monitors seem to substantiate the allega­ small number of Chechen fighters had tions and exclude the eventuality of a taken up positions m the buildings, the “Timisoara" style disinformation cam­ Russian forces would be responsible for paign. The Sunday Timed wrote that “the disproportionate use of violence,” stated [Russian] soldiers had made little Human Rights Watch-Helsinki. attempt to clear up the evidence of the massacre,” by the time Westerners had The alleged Samashki massacre has been allowed to enter the town at last. been singled out on account of the sheer International aid workers estimated the scale of the atrocity. But it should in no death toll as 250, at the very least. way be allowed to overshadow other Locals believe that it stands much atrocities committed elsewhere in higher. Official Russian sources, quoted by Chechnya, where Russian troops delibe­ Human Rights Watch-Helsinki, estima­ rately indulged in a pattern of miscon­ te that at least 120 people died in the duct that has characterised their beha­ attack. viour since the outset.

Whereas the official Russian media portrayed Samashki as a hotbed of (d) The Budennovsk Hostage Crisis Chechen resistance, it seems that the town was no more no less sympathetic to The war spread beyond the borders the ideal of independence than the rest of the Chechen Republic and into of the breakaway region. General Russia’s own territoiy on 14 June 1995, Anatoly Kulikov, the Russian comman­ when a group of Chechen fighters, der of the operation, claimed that armed with automatic weapons and gre­ Samashki was "an enemy stronghold nade launchers stormed the industrial and that most of those killed were figh­ city of Budennovsk, some 200 kilo­ ters.” He said he had "no objections to metres north of Chechnya. The the Russian Procurators office investi­ Chechens attacked main public buil­ gating reports of murder of civilians dings and at least 41 people were killed during the assault.” To date, however, it and 50 injured on 14 June alone. seems that the promise has remained Hundreds of people were seized in the lettre morte. Human Rights Watch- town and forced into the hospital, where Helsinki reported that the Russian inde­ patients and staff were also taken hostage. pendent human rights group Memorial, compiled credible evidence that 94 of Holding between 1,000 and 1,500 the fatalities were civilians, a strong people, the Chechens fortified the hospi­ indication that the Russian forces violated tal and threatened to kill the hostages the rule of proportionality. Reports from unless Russia ceased hostilities in Samashki suggest that there were more Chechnya. civilians than combatants in the town at the time of the assault. If, indeed, as the The leader of the Chechen operation, Russian side has alleged, combatants Mr. Shamil Basajev, had reportedly used the city’s dwellings as fighting demanded the launch of campaign of retrenchments, the destruction of the terror in Russia but this option was clearly rejected by Mr. Dudayev and the lation committed by Chechen insur­ Chechen hierarchy. gents. However, it should be remembe­ red that Mr. Dudayev straightfarwardly Thousands of Russian troops were condemned the attack. dispatched to the scene in response and their first two assaults ended in dismal (e) The Spreading of Anti-Personnel failure and carnage. Once again the Land Mines conduct of the Russian forces in Budennovsk appears to have been both erratic and reprehensible. While terri­ In June 1995, the ICRC raised fied Russian hostages, many of them concern over another lingering interna­ sick, waved white flags from the w in­ tional humanitarian law violation: that dows of the battered clinic, Russian of anti-personnel mines. In the city of Shali, situated some 80 kilometres south troops disproportionately fired automa­ east of Grozny, the local authorities had to tic weapons and heavy artillery at the advise people not to go more than 300 building, setting one wing ablaze. On 18 metres outside the town limits. The June, reports claimed that 150 hostages towns of Samashki and Argun have had to had been killed. A number of hostages face the same menace. Fear of mines and later said that they had been used as unexploded shells is likely to continue human shields by the Chechens. The marring the vital Chechen agricultural Russian military prosecutor ordered an and other infrastructures for a long time. investigation into the killing by a Anxiety has been preventing the inhabi­ Russian soldier of Russian journalist tants of Chechen villages from working Natalja Aljakina. in their fields and feeding their livestock. At the time of writing the situation see­ On 18 June, Mr. Viktor med likely to deteriorate if farming Chernomyrdin, the moderate Russian could not be resumed and displaced Prime Minister, horrified by the turn of people continued to flood in the area. events, personally took charge of nego­ This concern has been raised in the tiating with Mr. Basajev. He promised to "Bindig Report” which cited the case of a put an end to the war in Chechnya, sup­ aged man in Shah who could not let his port peace talks with the Chechen hie­ cows out in the pastures because they rarchy, and offer safe passage to exploded on landmines. The Report, Chechnya for the rebels in exchange for though it lacked enough conclusive evi­ the hostage’s release. As a result, hun­ dence to show that a deliberate policy of dreds of hostages were released and the 74 starvation of civilians existed on the part hostage-takers were safely driven back of the Russians, stated that such a “ten­ to Chechnya where they subsequently dency seems to be manifesting itself.” If dispersed. Mr. Chernomyrdin ordered this were the case, Russian forces would General Kulikov to stop military opera­ be violating Article 14 of the Second tions on 18 June, hence officially mar­ Additional Protocol to the Geneva king the end of the war in Chechnya. Conventions which prohibits starvation The Budennovsk tragedy officially clai­ of civilians as a method of combat. Such med 120 lives and stands out as the considerations naturally lead us to consi­ single most important human rights vio­ der some of the international instru- ments which have been violated during “(1) Persons taking no active the Chechen conflict. part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by V Russian Violations of International sickness, wounds, detention, Humanitarian Law and Custom or any other cause, shall in all circumstances by treated “Human Rights, international humanely, without any adverse law and OSCE principles are distinction founded on race, being violated in unacceptable colour, religion or faith, sex, ways in Chechnya. Preserving birth or wealth, or any other [Russian] territorial integrity similar criteria. cannot be established by redu­ cing whole neighbourhoods to rubble and ash. A lasting solu­ To this end, the following acts tion can only be a peaceful are and shall remain prohibited solution. The Russian leader­ at any time and in any place ship must grasp this.” whatsoever with respect to the above-mentioned persons: Mr. Klaud Kinket, German Foreign Minuter, on 16 January 1995. (a) violence to life and person, in particular mur­ (a) The 1949 Geneva Conventions der of all kinds, mutilation, and their 1977 Protocols cruel treatment arid tortu­ re; The ICJ and other international human rights organizations based their (b) taking of hostages; condemnation of the behaviour of the Russian army upon legal grounds. (c) outrages upon personal Common Article 3 of the four Geneva dignity, in particular humi­ Conventions, which apphes both to liating and degrading international conflicts and to conflicts “not of an international character,” and treatment; which is designed to protect non-comba­ tants or persons placed hors de combat, as (d) the passing of sen­ well as civilian property,20 allows no tences and the carrying derogation to the fundamental principle out of executions without that civilians should not be harmed. previous judgment pro­ Common Article 3 of the 1949 Geneva nounced by a regularly Conventions, which sets out minimum constituted court, affor­ rules to be observed under all circum­ ding all the judicial gua­ stances, provides: rantees which are recogni-

20 See Cornelio Sommaruga, Human Rights and International Humanitarian Law, in Bulletin of Human Righu 91/1, United Nations, March 1992, at 57. zed as indispensable by tutional order in one of its constituent civilised peoples. republics. Yet restoring order and legali­ ty by resorting to extreme violence (2) The wounded and sick becomes senseless if it predictably gene­ shall be collected and cared rates even more violence by fuelling for." more hatred and resentment. Furthermore, resorting to the sort of Serious concern arose regarding the extreme violence exerted in Chechnya actions of both officers and rank-and-file runs counter to the very notion of legali­ soldiers in the war in Chechnya. “The ty Russia endeavoured to uphold in the fact that the Russian armed forces have first place. For, by targeting civilians in not spared the civilian population m the name of its domestic law and order, Chechnya, as prescribed by the Fourth Russia violated the international law Geneva Convention, means that wides­ provisions it had bound itself to respect. In pread violations of humanitarian law believing that they could restore legality both on the part of persons vested with by breaking a higher form of legality - command authority as well as ordinary international law - Russian forces were soldiers have occurred.”21 guilty not only of grave breaches of the Conventions but also made a fatal mista­ The four Geneva Conventions of ke by ignoring the obligations they were 1949 and the two additional protocols of bound to follow. 1977, which form the basis of internatio­ nal humanitarian law, are “no less than Well documented sources illustrate the juridical expression of a common the systematic disregard by Russian determination to extend rights and gua­ forces of the provisions of common rantees to several categories of indivi­ Article 3 of the Geneva Conventions. In a duals in time of war, ” wrote Dr. Cornelio fascicle published in January 1995, Sommaruga, President of the Human Rights Watch-Helsinki, states: International Committee of the Red Cross.22 The IC J’s early call upon the “Russian forces have shown Russian Government to refrain from the utter contempt for civilian lives use of indiscriminate force against civi­ in the breakaway republic of lians, bring the actions of its agents into Chechnya. Eyewitnesses told conformity with accepted international our researchers of Russian standards, and bring a peaceful resolu­ bombs, shells and mortar fire tion to the conflict, reflected the urgency levelling apartment buildings, of the situation. entire neighbourhoods, and single-family homes in Grozny Russia persistently argued that it and hitting civiHan areas in entered Chechnya to restore the consti­ outlying villages in Chechnya

21 Michael R. Lucas, "The War in Chechnya and the OSCE Code of Conduct” in HeLtinki Monitor: Quarterly on Security and Cooperation in Europe, Netherlands Helsinki Committee, at 42. 22 Cornelio Sommaruga, Human Rights and International Humanitarian Law, in Bulletin of Human RighU 91/1, United Nations, March 1992, at 57. and in neighbouring prohibits the collective punishment of Ingushetiya. Russian ground populations. It reads: forces reportedly opened fire on civilians from a railroad car. “No protected person may be Russian forces also destroyed punished for an offence he or at least two hospitals and part she has not personally commit­ of a third, an orphanage, and ted. Collective penalties and several market areas. They likewise all measures of intimi­ have inflicted hundreds of civi­ dation or of terrorism are pro­ lian deaths, gruesome casual­ hibited. ties, and caused an estimated 350,000 people to flee."23 Pillage is prohibited.

The bombardment of Grozny and its Reprisals against protected environs poses the well-known legal persons and their property are question of proportionality - a notion of prohibited.” international humanitarian law. Considering that, on the one hand, the The Samashki massacre illustrated Russian army is one of the largest in the above typifies Russian misconduct in world and has a huge potential of des­ carrying out collective reprisals against truction, and that, on the other hand, the civilians in the course of disarming elusi­ Chechen army is lightly equipped and ve Chechen combatants. Human Rights considerably smaller in terms of staff Watch-Helsinki reported that “[A] dis­ and resources, the question of the pro­ turbing development (...) has been the portionality of Russia’s actions acquires Russian forces’ abuse of their right to a vivid dimension. disarm to mask for collective punish­ ment against civilians” which is express­ As we have seen above, Russian ly prohibited by Article 33. In the case forces bombed out entire residential of Samashki, and other villages, Russian areas and inflicted various other forms forces requested the handling over of an of mistreatment upon innocent civilians arbitrary number of weapons - a figure in Grozny, Samashki and other places. determined by intelligence reports - Such behaviour amounts to collective under threat of dire consequences. penalty inflicted upon the civilian popu­ According to Human Rights Watch- lation as a whole. With the intent to Helsinki, such demands for weapons punish the Chechen people, who in their sometimes served as a pretext for an vast majority, favoured independence attack or for the detention of indivi­ rather than being forcefully reintegrated duals. Samashki was bombed and stor­ into the Federation, Russian forces have med because it had been unable to turn acted in flagrant violation of Article 33 over the 264 automatic weapons arbitra­ of the Fourth Geneva Convention which rily demanded by the Russians.

23 Human Rights Watch-Helsinki, Riuuia’ti War in Chechnya: Victim) Speak Out, Vol.7, No.l, January 1995, at 2. If Russia argues, as it has done, that consistent with the provisions of the UN Chechnya forms an integral part of the Basic Principles on the Use of Force and Federation, and if Russia argues, as it Firearms by Law Enforcement has done, that the Chechen conflict is an Officials24 which state that: internal one, then it is Lpdo facto bound by Protocol II additional to the Geneva “A. Law enforcement officials, Conventions, which relates to internal in carrying out their duty, armed conflict and mandates humane shall, as far as possible, apply treatment of civilians and those who non-violent means before have ceased to take part in hostilities. Its resorting to the use of force Article 4 prohibits "violence to the life, and firearms. They may use health, or physical or mental well-being force and firearms only if other of persons, in particular murder as well means remain ineffective or as (...) torture, mutilation, or any form without any promise of achie­ of corporal punishment.” It also forbids ving the intended result.” the taking of hostages, collective punish­ ments, outrages against personal dignity, The massive bombardment by pillage, and threats thereof. Well docu­ Russian forces of civilian targets in and mented sources attest that Russian around Grozny contravenes the UN troops committed many of the crimes Basic Principles insofar as the Russian enumerated m Article 4. By ignoring the party had been offered an alternative to validity and supremacy of this particular armed action by holding negotiations article of the 2nd Protocol as well as with the Chechen party. Mr. Dudayev other international law provisions that had, at that time, expressed his willin­ specifically govern the sphere of so-cal­ gness to hold such talks with the led internal conflicts, Russia's govern­ Russians. His proposal, however, was ment and military simply displayed their utter contempt for the Rule of Law in swiftly rejected by the Kremlin. Had the face of the world. such negotiations ever taken place and been successful it is highly probable that (b) The UN Basic Principles on the hundreds, perhaps even thousands, of Use of Force and Firearms by lives could have been spared. Law Enforcement Officials Ever since its outset, the Russian If Russia argues, as it has done, that its operation m Chechnya had been charac­ forces entered Chechnya to "restore terised by lack of restraint. In that res­ constitutional order,” then as "law enfor­ pect, the UN Basic Principles are unam­ cement” agents, their action should be biguous:

24 Footnote No. 133 to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, states: “...In countries where police powers are exercised by military authorities, whether unifor­ med or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.” “5 (a). [Law enforcement offi­ or criminal action seems to have been cials shall] exercise restraint in taken against rogue security forces ele­ such use [of force] and act in ments who committed crimes in proportion to the (...) legitimate Chechnya indicates that, by allowing objective to be achieved; impunity to prevail, a serious threat to the Rule of Law exists in Russia. (b) Minimise damage and inju- Conversely, however, it has been reported ly, and respect and preserve that Russian officers who refused to use human life.” arms against civilian targets in Chechnya have been sanctioned. Such actions constitute a violation of the UN If, in Russia’s eyes, gaining control of Basic Principles which state that: the territory of Chechnya constituted a "legitimate objective,” it is evident that no restraint whatsoever was exercised in “25. Governments and law attaining that objective. Furthermore, enforcement agencies shall Russian security forces inflicted maxi­ ensure that no criminal or disci­ mum damage to the city of Grozny and plinary action is imposed on injuiy to its civilian inhabitants, law enforcement officials who, Chechen and Russian alike. In other in compliance with (...) these words, certain rogue elements of the basic principles, refuse to carry Russian forces acted not only dispropor­ out an order to use force and tionately but also criminally, and in firearms...”. defiance of President Yeltsin’s ban on such actions. (c) The OSCE Code of Conduct on Politico-Military Aspects of Security According to the UN Basic Rules, there is no place for impunity in such It is worthwhile mentioning that on 6 circumstances: December 1994, just five days before the start of Russia’s military intervention "7. Governments shall ensure in Chechnya, an important new docu­ that arbitrary or abusive use of ment, the Code of Conduct on Politico- force and firearms by law Military Aspects of Security, was appro­ enforcement officials is puni­ ved by the Member States of the shed as a criminal offence Organization for Security and under their law,” and, Cooperation in Europe (OSCE) at a summit of the organization in Budapest. "8. Exceptional circumstances such as internal political insta­ A central aim of the Code is to pre­ bility or any other public emer­ vent the misuse of military force to gency may not be invoked to achieve political ends. “The Code is not justify any departure from a treaty or legally-binding but all OSCE these basic principles.” States made a political commitment to (Emphasis added) conduct themselves according to these standards,” stated Mrs. Christine Shelly, The fact that little or no disciplinary spokesperson of the US State Department on 11 Januaiy 1995. The but nevertheless serious violations on text26 intends to give greater regional the part of the Chechen armed forces and sub-regional specificity to the inter­ must be similarly taken up."26 national laws that govern militaiy-politi- cal activities and the use of force, including The "Bindig Report” on the Human the UN Charter and the Geneva Rights Situation in Chechnya of the Conventions. Russia, as a Member State Committee on Legal Affairs and Human of the OSCE, approved the Code on 6 Rights of the Parhamentaiy Assembly of December 1994 and has, therefore, com­ the Council of Europe, authoritatively mitted itself to respecting it. Concerning recalled that the Geneva Conventions the subject of impunity, Paragraph 31 of and the OSCE Code of Conduct applied the Code states: in the case of Chechnya. It recalled that: "Russia is bound by these documents of "The participating States will international humanitarian law, and ensure that armed forces per­ must apply them in the Chechnya sonnel vested with command conflict.” However, Mr. Bindig reported authority exercise it in accor­ that when Russian General Kulikov had dance with relevant national as been confronted with some of the alle­ well as international law and ged violations of international humanita­ are made aware that they can rian law committed by the Russian be held individually accoun­ forces, he had answered that: "regretful­ table under those laws for the ly, a dirty thing like w ar is always unlawful exercise of such accompanied by dirty acts.” The “Bindig authority and that orders Report” found that, unfortunately, Mr. contrary to national and inter­ Kulikov’s attitude seemed to have been national law must not be given. shared and "widespread” among ordinary The responsibility of superiors Russian soldiers. Mr. Kulikov’s pseudo­ does not exempt subordinates justification of the atrocities committed from any of their individual by his troops in Chechnya therefore set responsibilities.” the stage for widespread impunity for violations of international humanitarian Thus, "[T]he OSCE, the internatio­ law. More woriying still is that the nal community as a whole, as well as the superiors seemed to have known about Russian judiciaiy and Parliament have a and condoned such outrages. If this responsibility to investigate these viola­ were the case it would appear that the tions and to ensure that individuals res­ Russian forces adopted a deliberate poli­ ponsible for them are apprehended, jud­ cy of terrorizing the population to extin­ ged, and punished. The less extensive guish the will of an entire nation.

25 Para. 39 of the Code states: “The provisions adopted in this Code of Conduct are politically binding. Accordingly, this Code is not eligible for registration under Article 102 of the Charter of the United Nations. This code will come into effect on 1 January 1995.” (emphasis added) 26 Michael R. Lucas, "The War in Chechnya and the OSCE Code of Conduct" in Helsinki Monitor: Quarterly on Security and Cooperation in Europe, 1995 No. 2, Netherlands Helsinki Committee, at 42. Mr. Bindig aptly remarked in this tion of human rights abuses context that “the Geneva Conventions committed by Russian Federal were, after all, conceived m the afterma­ forces against the Chechen th of World War II with its high civilian population, neither through casualties in order to protect all human military discipline, nor through beings, including the non-combatants, the ordinary judicial system. from the ravages of war, so that a war This is an unacceptable situa­ would not include “dirty" acts commit­ tion. Military discipline must ted on the civilian population any be strengthened in such a way more.”27 The “Bindig Report” and other that arbitrary arrests, looting, documents that have been released extortions and the whole list of concerning the situation in Chechnya abuses [listed] in this report have pointed out the fact that there are either are prevented in the first also limits to the protection of civilians place, or are properly prosecu­ dictated by absolute military needs, such ted afterwards.”28 as acute self defence. However, it is a rule that international humanitarian war (d) Other Relevant law is not to be derogated from in times of International Texts war, precisely because it was designed for times of war. This chapter would not be complete if it failed to mention that Russian forces All in all, it has become sadly appa­ have not respected United Nations rent that a culture of impunity has General Assembly Resolution 2444 unfortunately been allowed to prevail in (1968), which relates to internal armed conflicts, provides standards for distin­ the Russian Federation. The “Bindig guishing between combatants and civi­ Report” noted that “[NJobody had ever heard of any soldier being prosecuted lians and for sparing the latter as much for [his] acts, let alone being convicted; as possible. There are also strong indica­ the sole exception to this rule was tions that Russia could have violated the General Kulikov who claimed that 60 UN Convention against Torture and investigations had been started, and that Other Forms of Cruel and Degrading Treatment which prohibits torture, bea­ of these, about 20 percent had led to tings, and other forms of mistreatment convictions.” On the question of impuni­ of persons. ty, Mr. Bindig, who seemed not to have been totally convinced by Mr. Kulikov’s supposedly reassuring words, concludes: VI Governmental Control of the Military “It can thus be summarized that in principle there seems to That the bombing of Grozny conti­ be no investigation or prosecu­ nued after Mr. Yeltsin had personally

27 The "Bindig Report,” Op. Cit., at 7. 28 Ibid, at 20. ordered its cessation is clearly indicative nascence of an endogenous public oppo­ of a lack of executive control over the sition movement to the war in military, at least during some stages of Chechnya. Manifestations of such oppo­ the offensive. This incident, and other sition emanated even from within the similar developments during the powerful military-industrial complex. Chechnya war, illustrate that certain ele­ Examples include General Eduard ments within the Russian armed forces Vorobyov, who refused, on 22 and interior security services acted well December 1994, to lead units he com­ beyond their normal mandate. The deci­ manded into battle near Grozny and sion to intervene in Chechnya was, as who was later transferred to reserve we have seen above, taken by Mr. duty for that reason, and General Yeltsin and certain members of the Alexander Lebed, the "hawkish" government - the so-called “Power Commander of the 14th Army in the Ministers” in the newly established breakaway Russian-speaking Transdniestr Russian Security Council - against the region of Moldova, who publicly voiced opinion of certain other members of the his opposition to the military solution in government and of the two houses of spite of his nationalist ideas. Numerous Parliament, the (lower) Federation other anonymous officers and conscripts Council and the (upper) State Duma. refused the intervention in Chechnya. Both houses privileged a political settle­ Mothers of young conscripts demonstra­ ment to the conflict rather than the mili­ ted publicly and were often compelled to tary option favoured by the executive’s send their sons to distant hideaways to militaristic core. O n 8 December 1994, avoid their being drafted. the Federation Council even passed a resolution that expressly prohibited the Also indicative of the new elan given to use of force in Chechnya. Both the incipient antiwar movement, the Federation Council and the State Duma major reformist political party "Russia's then passed a number of resolutions cri­ Choice;” as well as leading human rights ticizing Mr. Yeltsin’s decision to resort activists Elena Bonner and Serguei to armed action and calling for an end to Kovalev relentlessly voiced their paci­ the offensive and a negotiated settlement fist stance. Air. Boris Fedorov, former to the conflict. O n 12 February 1995, Minister of Finance and Member of the Federation Council requested the Parliament (Duma) denounced Russia’s Russian Supreme Court to examine the invasion as "gross military incompetence constitutionality of Mr. Yeltsin s decision that had caused needless bloodshed” and to invade Chechnya. called for Yeltsin’s resignation.29

The "Bindig Report” reveals that the VII The Opposition overwhelming majority of the popula­ to the War in Russia tion m the big cities of Russia, such as Moscow and Saint Petersburg, was One encouraging factor that emer­ firmly against the war, while in the ged within Russia, however, was the countryside a more "patriotic” approach

29 See Robert Orttung, “Chechnya, A Painful Price,” in Transition, Vol.l, No.3, 15 March 1995, at 3. would command a majority. The alleged from the murder and beating of some fraction between urban and rural areas journalists to obstruction of their work. of the country is, however, rather sim­ All in all, it has become abundantly clear plistic and reductive. Opposition to the that the war left Russian society deeply war in remote areas of Russia has remai­ divided. ned largely undocumented. Unverified rumours contend that riots were spar­ ked off in rural villages and small towns because the local population tried to VIII The ICJ Stance on Chechnya prevent the drafting of their youngsters The IC J took no position concernmg into units bound for Chechnya. Chechnya’s claim to independence and, Manifestations of public dissatisfaction consequently, no position on whether over the military intervention in the war was of an international or non­ Chechnya emanated mostly from the international character. Its stance on independent television station NTV, Chechnya invariably was that all parties to which won particular plaudits for its the conflrct should respect international reports from the battle zone, as well as humanitarian law to prevent civilian other media outlets. The daily Izvedtija, casualties. Having made that clear, for instance, named Mr. Kovalev, however, the ICJ eventually had no Russian human rights Commissioner, other option than to acknowledge that “Man of the Year, ” for informing citizens even if both partres were responsible for on the human rights abuses being com­ abuses, Russian violations of human mitted in Chechnya and for repeatedly rights did, indeed, outnumber the countering the government-sponsored Chechen ones. O n 3 February 1995, in official propaganda on the matter. light of the growing number of substan­ tiated reports of atrocities committed in In the meantime the State owned Chechnya, the ICJ publicly approved “Ostankino” television network embar­ the decision of the Council of Europe to ked on a campaign of active dismforma- impose a dine die bar on Russia’s applrca- tion, serving daily doses of propaganda tion to join the organization. The ICJ to the public, in pure unadulterated stated that Russia’s application to join Soviet-style. “Ostankino” has often been the Council of Europe was hardly com­ suspected of non-neutral reporting of patible with the measures applied by its events in the “near abroad” and for pro­ forces against non-combatants in voking pro-Russian sentiment in the for­ Chechnya, which violated the Geneva mer Soviet republics that had become Conventions and its Protocols, the UN independent. But more worrying still is Basic Principles on the Use of Force and that the Russian Fund for the Freedom Firearms by Law Enforcement Officials, of Information reported nearly 100 the OSCE Code of Conduct on Politico- concrete cases between 1 December Military Aspects of Security, the 1994 and January 1995 of journalists' European Convention on Human rights being violated while they were Rights, and other international instru­ covering Chechnya.30 Abuses ranged ments. The ICJ was of the opinion that

30 IbS, at 7. the acceptance of Russia as a member O n 9 M ay 1995, the IC J urged the State of the Council of Europe without Heads of States and Governments, parti­ proper consideration of the behaviour of cipating in the commemoration ceremo­ its agents in Chechnya would inevitably nies marking the 50th anniversary of the result in the dampening of the European end of World War II in Moscow, to Convention on Human Rights, and clearly condemn all human rights viola­ would damage the credibility of the tions taking place throughout the world Council of Europe, an organization and press for an end to impunity for the whose aims, inter alia, include the uphol­ perpetrators of such atrocities. The ICJ ding of the Rule of Law. reiterated the necessity for the criminal accountability of perpetrators of gross human rights violations in Chechnya. O n 1 M arch 1995, during the fifty- The ICJ indicated that the presence of first Session of the UN Commission on many world leaders for the commemora­ Human Rights held between 30 tion in Moscow, at a time when horrific January-10 M arch 1995, the IC J urged, abuses were being committed by once more, the Russian army to respect Russian forces in Chechnya, would just international law and called upon the serve to condone violations of human Government of Russia to seek an imme­ rights, and first of all the right to life of diate peaceful resolution to the conflict. thousands of non-combatant civilians. The ICJ joined other international NGOs in requesting that UN Special The IC J appealed to world leaders to Rapporteurs with relevant mandates, announce publicly that they would back such as those on Torture and on monetary sanctions against the Russian Extrajudicial, Summary or Arbitrary Federation by, inter alia, freezing a US Executions, as well as the Working $6.8 billion International Monetary Groups on Enforced Disappearances Fund (IMF) loan until the Russian and on Arbitrary Detention, pay an army puts an end to its violations of urgent visit to Chechnya. The ICJ sta­ human rights in Chechnya and takes ted that the situation that prevailed in firm action to ensure that the officers Chechnya, in addition to the well- and soldiers responsible for the atroci­ known situations in the former ties be brought to justice and punished Yugoslavia and Rwanda, highlighted the accordingly. The ICJ deplored the fact need to bring the perpetrators of gross that few States had clearly denounced violations of human rights and grave Russia for the enormity of the crimes breaches of humanitarian law to justice. that were continuously being committed The statement made by the ICJ recalled and for the outrageous criminal beha­ that it is the impunity granted to such viour of certain elements within the perpetrators that encourages the dete­ armed forces during their campaign of rioration in the respect for human rights wanton destruction and terror. in many countries of the world. In this context, the ICJ welcomed the recent Concerned about the fate of anti-war efforts made to render the establishment protesters m Russia, and in order to of a permanent International Criminal press for a fair trial by the Russian judi­ Court possible. ciary in the context of the Chechen war, the IC J mandated, on 13 January 1995, indicative of the “Russia first” attitude Ms. Tanya Smith, Director of Legal that often, and not only tacitly, prevailed Programmes at the Moscow Centre for in most of the Western foreign ministries Constitutionalism in Eastern Europe, to whereby, because of its size and influen­ attend proceedings before the Moscow ce, Russia has been politically, economi­ Administrative Court on two adminis­ cally and financially favoured, to the trative trials against peaceful anti-war detriment of its smaller neighbour States protesters. The 11 defendants were of Central and Eastern Europe. The accused of participating in unsanctioned international community’s lukewarm picketing in front of the Italian Embassy opposition to Russian officialdom see­ in Moscow, on 11 January. The defen­ med to be motivated by fear of indirectly dants protested against the war in promoting a nationalist backlash in Chechnya and the West's lack of deter­ Russia. mination m denouncing the Russian armed forces for committing human A more worrying aspect is that the rights abuses in that conflict. The West, and the United States in particu­ demonstration was organized by lar, lost no time in publicly depicting the “Memorial,” the largest human rights situation in Chechnya as an “internal organization in Russia. The trial started on affair" of the Russian Federation. In 23 January and the IC J observer subse­ adopting such a “hands off” policy, the quently reported that all cases had been international community not only wan­ closed by the judge. ted to avoid antagonizing Russia, but also displayed astonishing ignorance of Human rights activists Mr. Serguei the relevant international law, either in Kovalev and Mrs. Elena Bonner, parlia­ time of war or in time of peace. This mentarians, leading pacifists, mothers of pusillanimous attitude was denounced soldiers, and jurists preoccupied by the by human rights activists and concerned evolution of the Rule of Law in Russia, NGOs: courageously and publicly voiced their stance and disagreement with the “Party “It is noteworthy that a num­ of War” decisions and terror tactics in ber of OSCE States (...) were Chechnya, but their voices have not quick to publicly declare the been sufficiently echoed by governments Chechen war as an internal around the world. affair of the Russian Federation. US President Bill Clinton’s prompt statement to this effect hardly reflected the IX The Attitude letter or the spirit of the freshly of the International Community signed [OSCE] Code of Conduct [see above]. The US The world’s lack of determination, Administration’s position also during the first few weeks of the war, in appeared to have overlooked condemning human rights violations the fact that the Code of committed in Chechnya is symptomatic Conduct and other OSCE of the political vacuum that has prevai­ norms and procedures and led in the post Cold War era. It is also those of other international instruments do not allow the also clear to Mr. Yeltsin that an interim putative "internal nature” of a trade agreement with Russia would not conflict to justify disinterest or be signed if the latter gave no assurances reluctance of the international as to the respect of human rights. On 15 community to act resolutely March, the EU "utterly condemned and expeditiously to prevail atrocities committed against civilians in upon the conflict parties to violation of basic human rights.” The resolve the conflict as quickly Council of Europe Parliamentary as possible and to vigorously Assembly's Political Affairs Committee apply OSCE and other instru­ had also expressed its opposition to ments to this end."31 human rights violations by "unreservedly condemning the indiscriminate use of The problem is that the lukewarm military force against the civilian popu­ and rather half-hearted attitude dis­ lation,” on 10 January 1995. The played by the international community Parliamentary Assembly passed a reso­ in denouncing the actions undertaken lution on 2 February 1995 which sus­ by the infamous "Party of War” faction pended the procedure concerning statu­ within the Russian Government, and tory opinion on Russia’s request for certain rogue elements of the Russian membership.” In this resolution the armed forces and Interior Ministry Parliamentary Assembly listed the inter­ troops in Chechnya, have undoubtedly national instruments Russia had viola­ had the effect of granting the Russian ted, as well as the OSCE Code of government and its armed agents a de Conduct, as a justification for denial of facto license to disregard flagrantly the membership. In doing so, the EU and basic principles of international law, the Council of Europe adopted the politics including the Geneva Conventions of conditionality which have characterized (1949) and the recently adopted OSCE Europe’s approach in other parts of the Code of Conduct.32 world.

Daily reports of the atrocious viola­ In comparison, the American : tions of human rights committed by approach to the problem has constituted ; Russian forces finally reversed the initial a rebuff to the notion of conditionality. trend. The European Union (EU), The American stance has been much under the leadership of its French more timid than that of the Europeans. Presidency, adopted the toughest stance. The USA shied away from denouncing On 9 March, French Foreign Minister Russia’s systematic brutality against Alain Juppe declared that the EU civilians and failed to use its influence in would not hesitate to use economic pres­ the Bretton Woods institutions as leve­ sure to compel Russia to observe human rage to force Russia’s compliance with rights standards in Chechnya. He made it international humanitarian standards.

31 Michael R. Lucas, "The War in Chechnya and the OSCE Code of Conduct" in Hebinki Monitor: Quarterly on Security and Cooperation in Europe, Netherlands Helsinki Committee; ft. at 38. 32 See Michael R. Lucas, Op. Cit. The US administration, in line with its Chechnya and bestows on the well-established policy of favouring the Russian Government the inter­ Russian Federation in its international national prestige it keenly relations, restricted itself to verbal and seeks. Indeed, on 11 April, as general criticism of Russia’s action in the news of the atrocities in Chechnya. It merely expressed concern Samashki became public, the over the loss of civilian lives and called International Monetary Fund for a political settlement of the problem. In finalized a US $6.8 billion loan any case, the USA systematically mitiga­ to Russia to help close Russia’s ted any form of criticism by appropriate­ budget deficit.”33 ly recalling that Chechnya was Russia’s "internal” affair. It is also worthwhile The ICJ and other international mentioning that the American tone NGOs promptly urged the Western remained unchanged even after the governments participating in the World Samashki massacre had been revealed to War II ceremonies to suspend the US the world. Human Rights Watch- $6.8 billion loan to Russia - which stood as Helsinki noted: the second largest in the history of the IMF. Strangely, few governments see­ “By limiting its condemnation med to have thought that the granting of of Russian abuse to words, the the loan was particularly untimely in [US] administration has lost view of the tremendous and lingering the opportunity to send a impact the Samashki massacre had on strong message to Moscow Western minds and the media at that that it will not countenance the time. . murder of civilians. As a result, the [World War II commemo­ The long-awaited direct international ration ceremonies in which involvement in Chechnya finally became President Clinton participated a concrete reality on 18 April 1995, on 9 M ay 1995 and 10 M ay when the Assistance Group of the Clinton/Yeltsin Summit, held OSCE was deployed in Grozny. The in Moscow, are] likely to be mandate of the OSCE team, inter alia , viewed by the Russian will be to investrgate human rights viola­ Government as the US tions committed in Chechnya. The government’s tacit acceptance Assistance Group’s broad mandate of the conduct of Russian necessarily entails that it will have to forces in Chechnya. More dis­ deal with the problem of impunity of turbing still, generous financial perpetrators of gross human rights vio­ assistance to Russia, in which lations in Chechnya. The ICJ joined the US government plays a cri­ other international NGOs in urging the tical role, belies the adminis­ OSCE team to ensure that officers and tration’s stated commitment to soldiers responsible for abuse be ending civilian suffering in brought to justice in appropriate judicial

33 Human Rights Watch-Helsinki, Ruddia: Partisan War in Chechnya on the Eve of the W W Il Commemoration, M ay 1995, Vol.7, No.8., at 6. fora, in line with promises made by the preventive measures in the Russian authorities themselves. international system in the future. (...) It is much more difficult to deal with [internal and/or ethnic] conflicts after X Promoting Proactive International they have broken out - when Involvement passions are high and the desire for vengeance proliferates. In Although, under the aegis of the situations of potential internal OSCE, the warring parties in Chechnya conflict (...) preventive peace­ have finally been brought to the negotia­ keeping could be a valuable ting table, the appalling events that took way of defusing problems and place in Chechnya indicate that much preventing their eruption. more remains to be done at the UN and There has. however, been only OSCE levels in the sphere of preventive one preventive peacekeeping I conflict resolution. If not many more operation to date: the UN ope­ "Chechnyas” will occur, especially since ration in the FY R O M (...) I Russia’s relations with several of its which has been highly acclai­ 1 autonomous republics are far from being med as the first successful pre­ really satisfactory. In this context, the ventive deployment in the his­ recently established OSCE mission of tory of peacekeeping mediation between the Ukrainian autho­ operations.”34 rities and the representatives of the majority Russian-speaking population in : the Ukrainian Autonomous Republic of Crimea should be seen as a first step that XI Conclusion should be emulated; tension in Crimea has receded partially because of the It has been established beyond any OSCE’s proactive intervention in the possible doubt that Russian forces in peninsula. Chechnya committed gross violations of human rights and grave breaches of international humanitarian law. The Another example of a successful indiscriminate use of fire against civilian international initiative is the UN presen­ residential areas, and human rights ce in the Former Yugoslav Republic of abuses committed against both civilians Macedonia (FYROM). On this subject and combatants, including murder, Professor Bertrand G. Ramcharan extrajudicial executions, torture, looting, writes: arson, extortion, and forced disappea­ i rances, have stunned the world and I “We are seeing (...) an evolu- should be strongly condemned. It has i tion in the problematique of also been established that Chechen I human rights violations which forces also perpetrated human rights will require more emphasis on violations, albeit on a smaller scale, and

34 Bertrand G. Ramcharan, “New Models of Human Rights Protection: Preventive Peacekeeping, ” in The Review of the International Commiddion ofJurujfo No. at 50,1993, 102. that these should also be strongly the times is that more and more Western condemned. The hatred that has filled governments, diplomats, scholars, and hearts on both sides in Chechnya will journalists predict the ominous return of take years, if not generations, to be over­ an assertive and revanchist Russian come - if it ever is. The impunity which Empire led by a “red/brown” coalition. has, until the present time, been allowed If this ever turned out to be the case, to prevail must be broken. The future of Chechnya would be remembered merely the Rule of Law in Russia is at stake. as a distant and ghastly prologue. The frightening words of an anonymous On 10 July 1995, started the hea­ Polish demonstrator protesting Russia’s rings of the Russian Constitutional invasion of Chechnya in front of the Court on the legality of President Russian embassy in Warsaw come back to Yeltsin’s order to send troops into mind: “Today Grozny; Tomorrow Kyiv; Chechnya, opening a case that marked and after tomorrow Warsaw. ” the first serious confrontation in court between Russia’s Parliament and President since October 1993. Deputies from both houses of Parliament reques­ ted the Court to rule on the constitutio­ nality of three presidential decrees and one government resolution, which for­ med the legal basis for the decision to send troops into Chechnya on 11 December 1994. "If [Yeltsin] were to lose the case, he would find it dramati­ cally more difficult to justify the Chechnya campaign and the enormous loss of life it entailed,” reported The Moscow Timed on 11 July 1995. “The Constitutional Court must make a histo­ ric choice between the power of law and raw power,” said Mr. Issa Kostoyev, Head of the Federation Council’s Constitutional Legislation Committee before the Court. The hearings were continuing as these lines were being written.

The juridical outcome of the Chechen tragedy will determine the orientation of Russian society for the foreseeable future. And this, in turn, will reveal to the world whether Russia can be kept safe for democracy. The future looks bleak at the very least. A sign of Commentary

The United Nation** Communion on H um an RighU: 51th Sejjion

The UN Commission convened for Mr. Musa bin Hitam (Malaysia); Vice­ the 51st time on 30 January 1995 at the Chairmen, Mr. Hocine Meghlaoui (Algeria), United Nations Office at Geneva, Mr. Valentin Dobrev (Bulgaria), Mr. Jose Switzerland, to discuss, for a period of Pallais (Nicaragua); and as Rapporteur, Mr. six weeks, the status of human rights Hannu Halinen (Finland). around the world. "As long as violations of human rights continue, then the work of the Commission must continue,” decla­ Question of the Violation red the High Commissioner for Human of Human Rights in the Occupied Rights, in one of the three opening Arab Territories, Including Palestine speeches delivered. However, the orga­ (Agenda Item 4) nization and efficiency of the work of the Commission itself was criticised by The first item discussed on this year's its outgoing Chairman, Mr. Peter van agenda was the question of the violation of Wulfthen Palthe of the Netherlands. He human rights in the Occupied Arab viewed the previous session, where he Territories, including Palestine. The had submitted a draft decision that focus of debate was the Report of the would assist in dealing with the cluste­ Special Rapporteur on the Occupied ring of agenda items along with some Palestinian Territories (E/CN.4/ other weaknesses highlighted in the pro­ 1995/19), personally introduced by Mr. cedure of the Commission’s sessions, as Rene Felber. a missed opportunity to solve these pro­ blems by way of agenda reforms. This The human rights situation in these year’s elected Chairman was Mr. Musa areas continues to be of major concern Bin Hitam from Malaysia, who promi­ as was emphasised by information recei­ sed to endeavour to proceed in a ved from al-Haq, the ICJ West Bank conscientious and orderly manner with affiliate; during 1994, 143 Palestinians the agenda, appealing to delegates to were killed by Israelis (including Israeli comply with time limits for their forces, Special Units, and settlers), and speeches and interventions. 16 Palestinians were killed by the Palestinian police. One of the mam fac­ At its first meeting, the Commission tors which aggravates the situation is elected the following officers: Chairman, undoubtedly the continued existence of settlers in the Occupied Territories and particular the continuation of acts of their manifestations of aggressive beha­ killing and the detention of thousands of viour which hinder the entire peace pro­ Palestinians without trial, the continua­ cess. This was the general opinion tion of the extension and the establish­ echoed in the statements made by seve­ ment of Israeli settlements, the confisca­ ral countries of the international com­ tion of properly of Palestinrans and the munity, calling on Israel to respect its expropriation of their land. international obligations and stating that there can be no meaningful peace in the It called once more upon Israel to existing circumstances. desist from all forms of human rights violations in the Palestinian and other In an oral intervention, the ICJ Occupied Arab Territories and to res­ Secretary-General, Mr. Adama Dieng, pect international law, the principles of condemned all attacks on life, whether international humanitarian law, and its Israeli or Palestinian. However, Israel commitments to the provisions of the had demonstrated departures from legality Charter and resolutions of the UN; and to when it undertook collective reprisals withdraw from Palestinian territory, against Palestinians following every including Jerusalem, and the other killing of an Israeli. Particular mention Occupied Arab Territories. The resolu­ was made of an instance last January tion was adopted by a roll-call vote of 26 when Israel openly, publicly, and expli­ in favour to 2 against (Russian citly endorsed torture. The main aim of Federation and United States of the intervention was, nevertheless, not America), with 21 abstentions. to repeat the “... sad and depressing story of systematic human rights viola­ Israel was asked in Resolution tions,” but to express dismay at Mr. 1995/2 on human rights in the Occupied Felber's report which "... systematically Syrian Golan to comply with the rele­ characterises the situation in purely poli­ vant resolutions of the UN General tical terms and reaches purely political Assembly and of the UN Security conclusions.” Whilst agreeing, regretful­ Council and to desist from changing the ly, that the Commission does away with physrcal character, demographrc compo- Mr. Felber’s services, the ICJ does ''sition, institutional structure, and legal believe that the essential mandate of the status of the Occupied Syrian Golan. It Special Rapporteur on the human rights emphasised that the displaced persons of situation in the Occupied Territories the population of the Occupied Syrian should be maintained. Golan must be allowed to return to their homes and recover their property. Then, under Resolution 1995/1 on human rights violations in the Occupied Furthermore, it determined that all Arab Territories, including Palestine, legrslative and administrative measures the Commission deeply regretted the and actions taken or to be taken by continued violation of human rights m Israel that purported to alter the charac­ the Occupied Palestinian Territories ter and legal status of the Occupied since the signing of the Declaration of Syrian Golan were null and void and Principles on 13 September 1993, in constituted a flagrant violation of inter­ national law. The Commission also deci­ UN Special Rapporteur, Mr. ded to include in the provisional agenda of Enrique Bernales Ballesteros, spoke to jts fifty-second session, as a matter of the Commission about his Report on the high priority, the item entitled "Question question of the use of mercenaries as a of the Violation of the Human Rights in means of violating human rights and the Occupied Arab Territories, inclu­ impeding the exercise of the right of ding Palestine.” The resolution was peoples to self-determination (E/CN adopted by a roll-call vote of 25 in .4/1995/29). One of the countries he favour to 1 against (United States of scrutinised and identified as engaging America), with 23 abstentions. mercenaries was Angola, however the Angolan Government openly denied this By Resolution 1995/3 on Israeli attack and added that since the war in Settlements in the Occupied Arab Angola has been brought to an end Territories the Commission reaffirmed there was now no need to send monitors that the installation of Israeli civilians in there. the Occupied Territories was illegal and constituted a violation of the relevant The inalienable right of the provisions of the Geneva Convention Palestinian people to self-determination relative to the Protection of Civilian without external interference was once Persons in Time of War, of 12 August more reaffirmed in Resolution 1995/4; 1949, regretted that the Government of and Israel was asked to comply with its Israel had not fully complied with the obligations under the Charter and the provisions of the Commission on principles of international law, and to Human Rights resolutions 1990/1, withdraw from the Palestinian 1991/3, 1992/3, 1993/3, and 1994/1; and Territories, including Jerusalem, and urged it to abstain fully from installing other Arab Territories which it had any settlers in the Occupied Territories. occupied since 1967 by military force so as The resolution was adopted by roll-call to enable the Palestinian People to exer­ vote of 46 in favour to 1 against (United cise their universally recognised right of States of America), with 3 abstentions. self-determination. It decided to consi­ der at its fifty-second session as a matter of high priority the situation in occupied Palestine. The resolution was adopted The Right of People to Self­ by row-call vote of 27 in favour to 1 Determination and its Application against (United States of America), with to People under Colonial or Alien 22 abstentions. Domination or Foreign Occupation (Agenda Item 9) Under Resolution 1995/5 on the use of mercenaries as a means of impeding Item 9 on the right of peoples to self­ the exercise of the right of peoples to determination and its application to self-determination, the Commission sta­ peoples under colonial or alien domina­ ted that the recruitment, use, financing tion or foreign occupation was dealt and training of mercenaries should be simultaneously with Item 4 as the two considered as offences of grave concern to are interrelated. all States; urged all States to prevent mercenaries from using any part of their gramme; and encouraged the contrnua- territory to any sovereign State; called tron of negotiations on implementation upon all States that had not yet done so to of the text stage of the Declaration of consider taking early action to accede to Principles. The resolution was adopted or ratify the International Convention by roll-call vote of 50 in favour to none against the Recruitment, Use, Financing against. and Training of Mercenaries; and deci­ ded to extend the mandate of the Special The Commission stressed hope in Rapporteur for three years. Resolution 1995/7 on Western Sahara that the direct talks between Morocco It also decided to consider at its fifty- and the Frente Popular para La Liberacwn de second session the question of the use of Saguia el-Hamra y Ru> de Oro would resume mercenaries as a means of impending soon in order to create an atmosphere the exercise of the right of peoples to conductive to the speedy and effective self-determination and recommended a implementation of the settlement plan; draft decision to the Economic and and decided to follow the development Social Council for adoption under which of the situation in Western Sahara and the Council would approve the to consider the question at its 1996 ses- Commissions decision to extend the sron, as a m atter of high priority. mandate of the Special Rapporteur for three years and request the Secretary- General to provide him with all necessa­ ry assistance. The resolution was adop­ Violation of Human Rights in ted by roll-call vote of 34 in favour to 1 Southern Africa: Report of the Ad against (United States of America), with Hoc Working Group of Experts 15 abstentions. (Agenda Item 5), Monitoring and Assisting the Transition to Democracy in South Africa (Agenda Item 6) and Concerning the Middle East peace Implementation of the International process the Commission emphasised in Convention on the Suppression and Resolution 1995/6 that the achievement Punishment of the Crime of Apartheid of just and lasting peace in the Middle (Agenda Item 15) East was vital for the full implementa­ tion of human rights in the area; welcomed the peace process started at Madrrd, and On the topic of South Afrrca, the supported the subsequent bilateral Commission had before it the Report of negotiations; and also welcomed the the Special Rapporteur on monitoring establishment of the Palestinian and assisting the transition to democra­ Authority and its positive efforts to cy (E/CN.4/1995/24), as well as that of develop sound governance based on the the Ad Hoc Working Group of Experts will of the Palestinian people and demo­ regarding the violations of human rights cratic procedures. It further called on in South Africa. the Centre for Human Rights to make available, on request, its programmes of In Resolution 1995/9 on Monitoring advisory services and technical assistance and Assisting the Transition to to the Palestinian Authority, and invited Democracy in South Africa, the governments to contribute to the pro­ Commission expressed its profound satisfaction at the entry into force of chapter in its history - a chapter that nei­ South Africa’s new Constitution, the ther South Africa nor the Commission holding of one person/one vote elections, hoped to reopen. His government atta­ the convening of South Africa’s new ched great importance to this decision, Parliament, and the installation of its he said, for it was only through that new President and Government of "slate cleaning” process that the new National Unity. It considered that the South Africa could assume its rightful mandate of the Special Rapporteur to place m the Commission. monitor the transition to democracy in South Africa had been successfully concluded, and decided to remove from Implementation of the Programme its agenda, as of its fifty-second session, the item entitled "Monitoring and Assisting of Action for the Third Decade the Transition to Democracy in South to Combat Racism and Racial Africa." Discrimination (Agenda Item 16)

Concerning the Implementation of Three days of debate were dedicated to the International Convention on the the subject of racism and racial discrimi­ Suppression and Punishment of the nation. In line with the implementation Crime of Apartheid (Resolution of the programme of action for the Third 1995/10) the Commission, noting the Decade to combat Racism and Racial report of the Group of Three, recogni­ Discrimination, the UN Special sed that the diligent application and Rapporteur, Maurice Glele-Ahanhanzo, monitoring of the International thanked the Commission for its response Convention by the international commu­ to his report (E/CN.4/1995/78 and Add. 1) nity had greatly assisted the dismantling of on contemporary forms of racism. His apartheid in South Africa. It decided to mandate included examining racism and remove from the agenda of its fifty- discrimination against blacks, Arabs and second session the item entitled Muslims, xenophobia, negrophobia and "Implementation of the International anti-Semitism, and human rights viola­ Convention on the Suppression and tions against women and migrant wor­ Punishment of the Crime of Apartheid.” kers. He also encouraged all the NGOs, including those who had already worked In Resolution 1995/8 it congratulated with him, to continue to assist him. - in addition - all South Africans and their political leaders on their success in The general opinion echoed was that bringing apartheid to an end in laying, governments should cooperate and thorough broad-based negotiations, the work together to enforce humanitarian foundations for a new, non-racial and standards concerning racial discrimina­ democratic South Africa with equal and tion. Conflicts and violence due to guaranteed rights for all. racism could finally threaten peace and security in the world (former Yugoslavia The Observer of South Africa said and Rwanda). It was stated, that the pri­ that with the adoption of the resolutions mary goals of the first two years had not the Commission had closed an important been achieved and also agreed with the recommendations of the Special Under Decision 1995/104 on a Rapporteur concerning the importance World Conference Against Racism, of education programmes. Racial and Ethnic Discrimination, Xenophobia and other Related The Commission adopted Resolution Contemporary Forms of Intolerance, the 1995/11 on the Implementation of the Commission suggested, through the Programme of Action for the Third Economic and Social Council, to the Decade to Combat Racism and Racial General Assembly to consider the possi­ Discrimination. Under the resolution, it bility of convening a world conference declared that all forms of racism and on the subject. Also Sub-Commission racial discrimination, whether institutio­ draft decision one on a World nalised or resulting from official doc­ Conference Against Racism was adop­ trines or some sort of belief in racial ted without vote. superiority, such as "ethnic cleansing,” were among the most serious violations of human rights in the contemporary Economic, Social and Cultural Rights, world and must be combated by all avai­ the Realisation of the Right lable means. It called upon the interna­ to Development tional community to provide the UN (Agenda Items 7, 8) Secretary-General with appropriate financial resources for efficient action "To say that human rights must first against racism and racial discrimination, be improved at all costs is a philosophical and requested him to ensure the neces­ luxury which has nothing to do with sary financial resources were provided everyday reality,” said the representative for the implementation of the activities of Sudan. This was especially significant of the Third Decade during the bien­ rn settrng the scene for the Commission s niums 1994-1995 and 1996-1997. discussion of economic, social and cultu­ ral rights, and the right to development. With regard to Measures to Combat Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Delegates drew attention to the pro­ Related Intolerance the Commission blem of multilateral debt and called for a took note in Resolution 1995/12 of the real political dialogue between debtors report of the Special Rapporteur on and creditors in accordance with the Measures to Combat Contemporary principle of shared responsibility. They Forms of Racism, Racial noted an inadequate level of political Discrimination, Xenophobia and will with regard to the implementation Related Intolerance. It requested him to of the right to development and asked continue to examine incidents if discri­ what the richest nations were doing to mination against Blacks, Arabs and reduce the huge gap separating the rich Muslims, xenophobia, negrophobia, from the poor. anti-Semitism and related intolerance, as well as governmental measures to over­ Furthermore, they said that all cate­ come them, and to report on these matters gories of human rights were indivisible to the Commission at its fifty-second ses­ and no one set of rights should have sion. priority over another as set out in the 1993 Vienna Declaration and Cultural Rights Contained in the Programme of Action. However, some Universal Declaration on Human stated that the right to development Rights and in the International required a favourable global economic Covenant on Economic, Social and climate and that structural adjustment Cultural Rights,” and the study of spe­ policies should have elements which cial problems which the developing mitigated their impact on the most vul­ countries face m their efforts to achieve nerable sectors of society. Most speakers these human rights, including: hoped that the outcome of the UN World Summit for Social Development a) problems related to the right to (Copenhagen, 6-12 March 1995), with enjoy an adequate standard of the goals of poverty alleviation, reduc­ living; foreign debt, economic tion of unemployment, and social exclu­ adjustment policies, and their effects sion, would contribute to the further on the full enjoyment of human enjoyment of economic, social and cultu­ rights and, in particular, on the ral rights. implementation of the Declaration on the Right to Development; The delegate of the Netherlands and past Chairman of the Commission (Mr. b) the effects of the existing unjust Peter van Wulfften Palthe) recognised international economic order on the that there is some tension which exists economies of the developing coun­ between civil and political rights on the tries, and the obstacle that this one hand, and economic, social and cul­ represents for the implementation of tural rights on the other. The former human rights and fundamental free­ requires restraint on behalf of govern­ doms. ments, while the latter necessitates acti­ ve intervention. This tension can, in his view, be controlled by a combination of Resolution 1995/13 was adopted, on representative democracy with respect the Effects on the Full Enjoyment of for human rights, a market economy, Human Rights of the Economic and a social policy promoting equal Adjustment Policies Arising from opportunities. Foreign Debt and, in Particular, of the Implementation of the Declaration on Then in Resolution 1995/15 the the Right to Development, by roll-call Commission requested the UN vote of 33 in favour (Asia, Africa, Secretary-General to establish a pro­ Middle East, South America) to 15 gramme unit in the Centre for Human against (Western and Eastern Europe, Rights for the promotion of economic, United States of America, Canada, social, and cultural rights, in particular Australia) with 4 abstentions. those related to the debt burden of deve­ loping countries and the implementation As to human rights and the environ­ of the right to development; decided to ment, the Commission requested in continue to consider, at its fifty-second Resolution 1995/14 that the UN publish session, the agenda item entitled the final report of the Special "Question of the Realisation in All Rapporteur of the Sub-Commission in Countries of the Economic, Social and all the official languages; at its fifty- si'cond session, a report containing the Under Resolution 1995/16, the opinions of governments, specialised Commission took note of Resolution agencies, and intergovernmental and 1994/41 of 26 August 1994 of the Sub­ non-governmental organizations on the Commission on Prevention of issues raised in the Special Rapporteur’s Discrimination and Protection of report; and decided to continue its consi­ Minorities which took note with appre­ deration of this question at its next ses­ ciation of the interim reports of the sion. Special-Rapporteur on Human Rights and Extreme Poverty and invited him to Concerning the question of the reali­ continue to give special attention to the following aspects in preparing his sation in all countries of economic, reports: the effects of extreme poverty social, and cultural rights, it was recom­ on the enjoyment of all human rights mended in Resolution 1995/15 that the and fundamental freedoms of those Centre for Human Rights convene affected by it; efforts by the poorest expert seminars for chairpersons of the themselves to exercise their rights and human rights treaty monitoring bodies conditions in which they can convey and representatives of specialised agen­ their experiences and ideas of the poo­ cies and non-governmental organiza­ rest and those committed to working tions, as well as representatives of alongside them. It also invited the States, focusing on specific economic, Special Rapporteur to pay attention to social, and cultural rights, with a view to the Declaration and Programme of clarifying the particular content of these Action to be adopted be the UN World rights. It also invited Member States to Summit for Social Development. consider the desirability of drawing up national action plans identifying steps to By a text on the right to development improve the situation of human rights, (Resolution 1995/17), the Commission as well as to seek the participation of requested the UN Secretaiy-General to communities affected by the non-realisa­ provide the Centre for Human Rights tion of these rights. with a focal unit to follow up on the Declaration on the Right to Further, the Commission requested Development and its implementation. It the UN Secretary-General to invite the welcomed the Working Group’s efforts international financial institutions to towards the establishment of a perma­ continue considering the possibility of nent evaluation mechanism to follow up organizing an expert seminar on the role implementation of the Declaration on 1 of these institutions in the realisation of the Right to Development. It further ; economic, social, and cultural rights. It recommended that the Economic and also requested the UN World Summit Social Council dedicate the high-level for Social Development to acknowledge segment of one of its substantive ses­ the human rights dimensions of social sions to evaluate the implementation of development and to use the rights reco­ the Declaration, and that the question of gnised by human rights conventions as a the realisation of the right to develop­ basis for relevant sections of the pro­ ment be adequately reflected in the j gramme of action to be adopted by the work and the final outcome of the UN j Copenhagen Summit. World Summit for Social Development, j

International Commission of Jurists 1 i The resolution was adopted by roll-call enabling the Commission on the Status vote of 36 in favour (Asia and Southern of Women to comment on the many States) to 15 against (Western States), reports of the Special Rapporteurs and and one abstention. Working Groups of the Commission. Similarly, the High Commissioner for In draft Resolution IV of the Sub­ Human Rights should review the Commission, as contained in document reports prepared for the Fourth World E/CN.4/1995/2 (Resolution 1995/19) on Conference on Women. the right to adequate housing, the Commission invited the Special Resolutions were adopted on this Rapporteur to submit his final report to aspect on the elimination of violence the Sub-Commission at its 47th session. It against women (Resolution 1995/85), recommended that the Economic and and the question of integrating the Social Council approve the human rights of women into the human Commissions request to the UN rights mechanisms of the United Secretary-General to provide the Nations (Resolution 1995/86). Special Rapporteur on the right to ade­ quate housing with all the necessary financial, technical and expert assistance On the subject of UN human rights required for the completion of his final machinery, there was a call for urgent report. revision of the human rights advisory services and technical assistance pro­ grammes, saying they had been used by On human rights and income distri­ some governments as a way of avoiding bution (Decision 1995/105), the international supervision and had had Commission adopted, without vote, a no real impact on the human rights decision by which it approved the deci­ sion to appoint Mr. Jose Bengoa as situations. Special Rapporteur on the relationship between the enjoyment of human rights, A permanent International Criminal in particular economic, social, and cultu­ Court, which would play a major role in ral rights, and income distribution at correcting gross violations of human both national and international levels rights and promoting accountability was taken into account the preliminary and now required, the Deputy Prime final reports of the Sub-Commissions Minister of the Netherlands told the Special Rapporteur on extreme poverty. Commission. The major obstacle to the achievement of human rights objectives was the increasingly precarious financial situation of human rights activities in the Women’s Rights, Programme and UN. Methods of Work of the Commission, and Internally Displaced Persons. Resolutions were adopted on: ways (Agenda Item 11) and means for overcoming obstacles to the establishment of a democratic society Women’s human rights could be and requirements for the maintenance of more fully integrated into the mains­ democracy (Resolution 1995/60); the tream of UN system-wide activity by composition of the staff of the Centre for Human Rights (Resolution 1995/61); How can an efficient early warning the respect for the universal freedom of mechanism be established in order to travel and the vital importance of family avoid the expansion of certain crises, as reunification (Resolution 1995/62); the well as to provide urgent action by the strengthening of the Centre for Human international community in coordination Rights (Resolution 1995/64); human with humanitarian and non-governmental rights and terrorism (Resolution organizations? 1995/43); the protection of human rights in the context of the human immunodefi­ ciency virus (HIV) and acquired immune Torture, Detention and Imprisonment deficiency syndrome (AIDS) (Item 10). (Resolution 1995/44); human rights and unilateral coercive measures (Resolution France, speaking on behalf of the 1995/46); the Decade for Human Rights European Union, was the first country Education (Resolution 1995/47); regio­ to deliver a statement under item 10. nal arrangements for the promotion and This item rncluded consrderation of not protection of human rights in the Asian only detention and imprisonment, but and Pacific region (Resolution 1995/48); also of torture, inhuman or degrading the development of public information treatment, enforced or involuntary activities in the field of human rights, disappearances and, in particular, the including the World Public Information status of the Convention against Torture Campaign for Human Rights and other Cruel, Inhuman or Degrading (Resolution 1995/49); and national insti­ Treatment or Punishment and the ques­ tutions for the promotion and protection tion of a draft optional protocol to it. of human rights (Resolution 1995/50). Under Resolution 1995/33, the Commission recommended that an Internally displaced persons was open-ended working group meet in 1996 other important issue. The Commission on this draft. adopted a resolution (Resolution 1995/57) recognising the gravity of the Five special rapporteurs, introduced situation and extending the mandate of their reports, addressing the current the Representative of the Secretary- situation world-wide with regard to General (Mr. Francis Deng), for a new enforced disappearances, arbitrary period of three years. The IC J stated rts detention and torture. They said only a support for the work of Mr. Deng and few governments had adopted measures to mentioned several measures necessary incorporate the act of enforced disap­ to adopt in order to improve his mandate pearance as an offence, with appropriate by answering the following questions: in penalties, rnto domestic criminal codes. what ways can international aid be focu­ Mr. Ivan Tosevski, Chairman of the sed and diversified, extending it to those Working Group on Enforced or groups particularly affected by internal Involuntary Disappearances, apprecia­ displacement, notably women, children, ted the fact that two governments which and other vulnerable groups?; In what had in the past declined cooperation - ways can humanitarian aid be prevented Angola and Morocco - had recently ope­ from being politically manipulated?; ned a new chapter in their dealings with the Group. On the other hand, he The representative of the Colombian expressed dismay at the rejection by the delegation explained that all human Governments of Serbia and Montenegro rights problems in his country had to be of his request to visit those countries, in seen within the context of the internal contravention of the Commissions armed conflict. He claimed that this was Resolution to that effect. This was fur­ especially true in the case of detainees ther emphasised in draft Resolution and prisoners. Colombia was concerned L.88/Rev.l (Resolution 1995/89), adop­ by the secret justice system, known as ted this year and discussed below in the the “regional justice” system. The context of Bosnia and Herzegovina. government could not protect the lives With regard to the problem of missing of attorneys, judges, and witnesses in persons in the territoiy of the former trials for drug trafficking, terrorism or Yugoslavia, the Commission adopted rebellion unless their identities were Resolution 1995/35, which urged the kept secret. Federal Republic of Yugoslavia (Serbia and Montenegro) to allow the expert It was at this stage that the sixth member of the Working Group to visit annual report of the IC J’s Centre for the Belgrade and to disclose all relevant Independence of Judges and Lawyers, information on missing persons. Attacks on Justice, was published and its contents referred to in an oral inter­ The Chinese reaction to the report on vention by Ms. Mona Rishmawi, CIJL arbitrary detention was harsh. Mr. Director. In view of the figures contai­ Zhang Yishan, speaking for China, said ned in the report - 572 jurists in 58 coun­ that the Working Group had seriously tries had suffered reprisals between exceeded its mandate by reviewing and June 1993-December 1994 for carrying even evaluating the political institutions out their professional functions the and mechanisms of sovereign States. He significance of UN involvement in pro­ said that it was fraught with examples of tecting judicial and legal independence selectivity and double standards and, was magnified. The ICJ welcomed the moreover, politically prejudiced and report by the Special Rapporteur on the unfair, making rash judgments on the Independence of the Judiciary, Dato’ question of arbitrary detentions. Param Cumaraswamy, which adequate­ ly outlined the legal principles pertai­ A defensive and critical reaction was ning to judicial and legal independence likewise received by Sudan. The and raised hope for the future. The Sudanese delegate claimed that despite Commission formally welcomed the their cooperation with the Special report submitted by Mr. Cumaraswamy Rapporteur, the report contained swee­ and invited the Centre for Human ping allegations which were unsubstan­ Rights to publish a fact sheet tiated. He said that some individuals (Resolution 1995/36). reported as detained had never in fact been detained; that others had been The Commission was told by detained for inciting to overthrow the Amnesty International that it had played government, while others had been tried a vital role in the battle to end persistent for acts of sabotage. and grave human rights violations whe­ rever they occurred. But it added that rette burns had burned his skin. He the mechanisms it embodied were woe­ requested the Commission to consider fully under-resourced and that sufficient his allegations of torture by Iraqi autho­ staff was needed in order to carry out rities. on-site visits. Under Resolution 1995/37, the Concern at inadequate resources, Commission urged all governments to both human and material, was expressed promote the implementation of the in Commission Resolution 1995/40, Vienna Declaration and the fulfilment of which focused mainly on the shortage in the financial obligations of all States the context of the Special Rapporteur on Parties to the Convention against Freedom of Opinion and Expression. It Torture and other Cruel, Inhuman or also invited the Special Rapporteur to Degrading Treatment or Punishment. pay particular attention to the relation­ ship between the effective implementa­ The Arab Organization of Human tion of the right to free opinion and Rights drew the Commission's attention to expression and incidents of discrimina­ the situation of the Lebanese detainees tion based upon gender. in the Israeli Occupied Territories, espe­ cially in the camps of Southern Lebanon Several of the interventions made by and the El-Khiam prison. There was evi­ non-governmental organizations under dence of grave violations of human this item consisted of testimonies of victims rights of the detainees - most of whom of human rights abuses. One of the most had never been tried or appeared before moving was that made by Mr. Palden a court of law but instead were imprisoned Gyatso on behalf of the International for failing to pay certain taxes as a sign Movement Against All Forms of of rebellion against occupation -, parti­ Discrimination and Racism. The spea­ cularly torture. Some detainees had died ker, a Tibetan monk, had spent 33 years in in El-Khiam but the Government of Chinese Prisons and Labour Camps in Israel had taken no steps to investigate Tibet. Unimaginable hardships had been the causes of death. Visits by family inflicted upon him, including forced members were severely restricted - or hard labour, deprivation of food, and even prohibited - and access to examine the conditions of the prison had been various types of cruel acts. denied to the International Committee of the Red Cross. The speaker urged the Mr. Jahn Bolad Saud Baghistani Commission to take action to condemn told the Commission that he had been Israel for continuing to detain Lebanese arrested and tortured by Iraqi authori­ prisoners; to investigate the reasons for ties. Speaking for the International deaths in the camps; to release the sick, Committee for European Security and minors, women, and those whose sen­ Cooperation, he claimed that he had tences had expired. been threatened by Iraqi diplomats at the Commission and that the Iraqi Access of NGOs to the UN Government wanted to assassinate him. He said that he could show where nails A workshop hosted by the went through his body and where ciga­ International Service for Human Rights brought together about 200 NGO repre­ her to speak under their name. She sentatives to discuss the extent of our encouraged such behaviour and greatly participation in the UN Commission. appreciated it. The under-representation of NGOs is of increasing concern especially as so much A review of the rules on NGOs will seems to hinge on the granting of take place in June 1995, in New York. “consultative status” by the Economic However, if no decision is made by then, and Social Council, a procedure which it will go on to the ECOSOC's agenda depends on a set of unpublished criteria. when it meets next in Geneva, in July It is only those NGOs which have been 1995. accorded consultative status that have the right to deliver written or verbal sta­ tements. Status of the International Covenants Representatives of regional NGOs on Human Rights (Agenda Item 17); from Asia, Latin America, Eastern Effective Functioning of Bodies Europe, and the African continent spoke Established Pursuant to United of the situation of NGOs in their respec­ Nations Human Rights Instruments tive countries and about the hardships (Agenda Item 18) they encounter. For example, speaking for the American group, the representati­ Concerning the succession of States ve said that the mere inadequacy and in respect of international human rights lack of telephone lines and faxes, the use treaties, the Commission requested in of which we take for granted in the Resolution 1995/18 the human rights West, makes their w ork that much more treaty bodies to consider further the difficult. This obstacle to the dissemination continuing applicability of the respective of information, due to sparse resources, international human rights treaties to can lead to serious consequences. One successor States, with the aim of assis­ that was mentioned was the complete ting them in meeting their obligations. It unawareness of many African NGOs of requested the UN Secretary-General to the existence of the Working Group on encourage successor States to confirm the Convention for the Protection of their obligations under the treaties to Human Rights Defenders - a process which their predecessor States were a which has been ongoing for a decade. party.

A further complaint focused on the Under Resolution 1995/22 on the cooperation between international Status of the International Covenants on NGOs, such as Amnesly International, Human Rights, the UN Secretaiy- and regional ones. An example of how General was invited to intensify syste­ this relationship can be used in a matic efforts to encourage States to constructive way was offered by a speaker become parties to the Covenants and on behalf of the Eastern European coun­ urged States Parties to fulfil in good tries: in a previous Commission meeting time their reporting obligations under when she did not have the right to speak the covenants and in their reports to herself, an international NGO allowed make use of gender desegregated data. It requested the UN Secretary-General should be formed which should include to consider ways and means of including a broad range of indigenous organiza­ national seminars or workshops to tram tions. They also said that it was time for governments officials, State Parties with the Commission to create a separate their agreement to the Covenants in the agenda item on the subject. Speakers preparation of their reports, and to pro­ described the situation of indigenous vide the Human Rights Committee and peoples in several countries (e.g. the Committee on Economic, Social and Mexico, Brazil, United States of Cultural Rights with additional means to America), the impact of limited political deal effectively and in a timely manner participation by indigenous peoples and with the increasing workload. also the role of transnational corpora­ tions in usurping indigenous land and resources. Sub-Commission, Indigenous Peoples (Agenda item 19, 19a) Afterwards, according to the report of the Sub-Commission on Prevention Before starting the general discus­ of Discrimination and Protection of sion of the work of the Sub-Commission Minorities on its 46th session, the and indigenous issues, Mrs. J. S. Attah, Commission called - in Resolution the Chairperson of the Sub-Commission 1995/25, concerning traffic in women addressed the Commission (she also pre­ and girls - upon all governments to take sented her report contained in docu­ appropriate measures to prevent the ments E/CN.4/1995/2 (Sub­ misuse and exploitation by traffickers of Commission) and E/CN.4/1995/83 economic activities, such as the develop­ (methods of work and new develop­ ment of tourism and the export of ments)). labour. It recommended that the pro­ blem of trafficking in women and girl She stated that representatives of children be given consideration in the indigenous peoples without consultative context of the implementation of all rele­ status should be allowed to participate vant international legal instruments. in the discussion of the draft UN Declaration on the Rights of Indigenous The Commission recommended in Peoples at other levels, beyond the Sub­ Resolution 1995/26 that the Sub­ Commission. She also pointed out that Commission, when adopting the agenda the problem with the term "indigenous for its 1996 session, allocate sufficient people" without an "s” would never be time for an adequate discussion of its accepted by these groups. studies and reports and decided to invite the Chairman of the Sub-Commission at During the discussion the speakers its 1995 session to call for consultations supported the proposed establishment of with the members of the Bureau of the a permanent forum on indigenous Commission. peoples, and of a mechanism to monitor implementation of the Declaration In Resolution 1995/27 on within the UN system. An inter-sessio­ Contemporary Forms of Slavery, the nal working group on the draft declaration Commission endorsed with one proviso the Sub-Commission’s recommendation cy and the UN Secretary-General was regarding the review of the implementa­ requested to transmit the text of the tion of the conventions on slavery and Declaration of Minimum Humanitarian requested the Sub-Commission to give Standards, adopted in 1991 (E/CN. further consideration to its proposed 4/Sub.2/1991/55), to Governments, and appointment of Mrs. H.E. Warzazi as intergovernmental and non-governmen­ Special Rapporteur on the Exploitation tal organizations for their comments. of Child Labour and Debt Bondage, subject to the submission of a preparato­ Under a resolution on humanitarian ry document. It also invited the Sub­ assistance it was decided not to forward to Commission to continue considering the the Economic and Social Council the strengthening of its involvement in the draft decision of the Sub-Commission activities of the Working Group and authorising a study on the question of requested the UN Secretary-General to Implications for Human Rights of UN invite those eligible States that had not actions, including the question of huma­ ratified or acceded to the conventions on nitarian assistance. slavery to consider doing so.

As to the International Decade of the In Resolution 1995/31 on the Report of World’s Indigenous People, the the Working Group on Indigenous Commission agreed in Resolution Populations of the Sub-Commission the 1995/28 on a final programme of activi­ UN Secretary-General was also requested ties for 1995. It also invited governments to give all the necessary resources and to give full consideration to the final assistance, from within existing overall comprehensive programme of action for UN recourses, to the Working Group in the decade as contained in document discharging its tasks, and appealed to all A/49/444. governments, organizations and indivi­ duals to consider requests for further Concerning a Permanent Forum for contributions to the UN Voluntary Indigenous Peoples in the UN system Fund for Indigenous Populations. the Commission endorsed, in Resolution 1995/30, the recommendation of its Sub­ With regard to the Rights of Commission that the Centre for Human Indigenous Peoples, the Commission Rights should organize a workshop on decided in Resolution 1995/32 to establi­ the possible establishment of such a sh an open-ended inter-sessional wor­ forum, which it recommended to be held king group with the sole purpose of ela­ for a period of three days prior to the borating a draft Declaration on the 1995 session of the W orking Group on Rights of Indigenous Peoples; and invi­ Indigenous Populations. ted relevant UN organs, bodies, pro­ grammes and specialised agencies and With regard to Minimum non-governmental organizations in Humanitarian Standards, all States were consultative status with the Economic invited in Resolution 1995/29 to consi­ and Social Council, interested in contri­ der reviewing their national legislation buting to the activities of the working relevant to situations of public emergen­ group, to participate in its work. It also requested the UN Secretary- as his final report to both bodies in 1996. General to invite governments, IGOs, It also asked the Economic and Social NGOs, and organizations of indigenous Council to endorse the same recommen­ peoples authorised to participate to submit dations. comments on the draft declaration. An annex to the text sets out the procedures In Resolution 1995/58 it called upon governing the participation of organiza­ the UN Secretary-General to maintain tions of indigenous people not in consul­ the integrity of programmes within the tative status, which are asked to make UN systems relating to persons with application to the Coordinator of the disabilities, including the UN Voluntary International Decade of the Worlds Fund on Disability, in order to promote Indigenous People. the right and the equalisation of oppor­ tunities and full inclusion within socie­ Furthermore, the Commission deci­ ties of persons with disabilities. It ded, under a text on the Protection of requested States to cooperate fully with the heritage of indigenous people the Special Rapporteur and meet his (Decision 1995/108), to submit the prin­ requests for information; and requested ciples and guidelines annexed to the pre­ the UN Secretary-General to ensure liminary report of the Special appropriate support for the effective Rapporteur on Indigenous Populations functioning of the long-term strategy to to Indigenous Peoples' organizations, implement the World Programme of Action concerning Disabled Persons to communities and nations, as well as to the Year 2000 and decided to continue governments, specialised agencies and to consider the question at its next ses­ IGOs and NGOs concerned, for their sion. comments. It recommended that the Economic and Social Council requests the UN Secretary-General to submit Rights of the Child (Agenda Item24 ) those same formulations and that it authorises the Rapporteur to take them Unless effective action is taken to into account in preparing her final stop the sale of children, child prostitu­ report. tion and child pornography, the UN would be failing to deal with one of the By a decision on Treaties, worst human rights violations, told the Agreements and other Constructive Chairman of the Working Group on a Arrangements between States and draft Optional Protocol to the Indigenous Populations, the Convention on the Rights of the Child, Commission endorsed in Decision Resolution 1995/78 and Resolution 1995/109 the recommendation of its 1995/79. He added that, although all Sub-Commission that the Special members of the Working Group had Rapporteur on such treaties make all rejected those practices, they were on possible efforts to submit his second the increase world-wide and there was progress report in 1995 to the Working an urgent need to eradicate them. Group on Indigenous Populations at its 1995 session and to the Sub- Taking into account the serious situa­ Commission at its 1996 session, as well tion on this matter, it was decided to renew, for a period of three years, the Commission that his government's first mandate of the Special Rapporteur on concern was respect for human rights the Sale of Children, Child Prostitution and it was concentrating on ending and Child Pornography. human rights violations, notably impuni­ ty, summary executions, disappearances, NGOs supported the strengthening torture, dictatorship, the persecution of of the Convention on the Rights of the journalists, revenge squads, and the des­ Child and the elaboration of the optional truction of property. He called on the protocols on the sale of children and international community to keep the children in armed conflict. It was said promises it made to rebuild the countiy that since its existence the UN mecha­ as soon as possible, particularly in the nism had not yet been fully utilised in domain of the domestic judicial system. promoting the rights of the child, it was Resolution 1995/91 on the situation of not necessary to establish new ones human rights in Rwanda was adopted at before having explored the one that the Commission without a vote. It notes already existed. the deep concern of the international community over the findings of the Special Rapporteur (E/CN.4/1995/7 and 12), that disappearances, arbitrary Country Situations (Item 12) arrests and detentions, summary execu­ tions, and attacks against displaced per­ The question of the violation of sons are still taking place and extends human rights and fundamental freedoms his mandate for an additional year. in any part of the world, with particular reference to colonial and other depen­ The Special Rapporteur on Human dent countries and territories, was fur­ Rights in Iraq, Mr. Theo Van Boven, ther divided into two sub-headings in introduced his report and relayed to the order to pay special attention to the participants at the Commission some of situation in Cyprus and other countries the atrocious abuses he had witnessed in where consistent patterns of gross viola­ Iraq. He drew attention to the tragic tions of human rights could be detected. plight of the Marsh Arabs, coerced into The countries of the former Yugoslavia, leaving heir homelands by the Iraqi Iraq, Iran, Southern Lebanon, Government that had drained the Afghanistan, China, East Timor, marshes and hence deprived these Myanmar (Burma), Colombia, Cuba, people of the primary source of their Guatemala, Haiti, Burundi, Equatorial livelihood. Other instances of human Guinea, Nigeria, Rwanda, Sudan, and rights violations were the death decrees Zaire, were the countries cited as dis­ issued to persons convicted of having playing such patterns. committed a crime, such as theft and robbery, in accordance with the Muslim A draft decision on the situation in law of the Shari’a. It was commonplace | Cyprus was read by the Chair and adop­ to find that the penalty for stealing an ted without a vote on 8 M arch, 1995. apple, for example, would be the ampu­ tation of a limb. A punishment grossly Rwanda’s Justice Minister, Mr. disproportionate in the view of many : Alphonse Marie Nkubito, told the government and NGO representatives. With the description of these and other in the Papua New Guinean held island events in the report it was no wonder, of Bougainville (1995/65), Afghanistan Mr. Van. Boven said, that the Iraqi (1995/74), Myanmar (1995/72), Government had accused him of bias, Equatorial Guinea (1995/71), Sudan gross exaggeration and political motiva­ (1995/77), Cuba (1995/66), and in tion. The report, however, did not mention Southern Lebanon, where Israeli viola­ that the continued application of economic tions of human rights in this occupied sanctions - which has aggravated the zone and in the Western Bekaa plain already desperate conditions in Iraq and were deplored in Resolution 1995/67, has led people to commit petty theft for and Burundi (1995/90). In relation to survival - could be classed as a human Cuba, the Commission requested the rights violation in itself. Cuban Government to authorise the visit of the Special Rapporteur on Mr. Van Boven's mandate was exten­ Arbitrary Detention and extended the ded for a further year, and his report mandate of the existing Special was taken note of with appreciation by Rapporteur by one year. The represen­ the Commission’s Resolution 1995/76, tative of Cuba voiced his opposition to which was adopted by a majority of 31 the Resolution by claiming that it was votes in favour, 1 against (Sri Lanka), impossible to vote on it if the financial and 21 abstentions. implications were not available, none­ theless, it was adopted on a roll-call vote As for Bosnia and Herzegovina, of 22 in favour, 8 against and 23 absten­ Croatia, Serbia, and Montenegro, tions. Resolution 1995/89 was adopted by a unanimous roll-call vote of 44 in favour In relation to Burundi, the resolution and 7 abstentions. This recalls in parti­ contains the appointment of a Special cular the police brutality, as well as Rapporteur with the task of drawing up a killings of ethnic Albanians, as part of an report on the situation of human rights attempt to change the ethnic structure of in the country for submission to the Serbian held Kosovo. Strong language is Commission at its fifty-second session. used to express the attitude of the inter­ national community towards the conti­ Cuba introduced draft Resolution nual refusal of Serbia and Montenegro L.26/Rev. 2, on the violation of human (that form the Federal Republic of rights in the United States of America as Yugoslavia) to allow entry of UN obser­ a result of persisting racism and racial ver missions and field officers of the discrimination, encouraging the USA to Special Rapporteur, and demands that invite once again the Special Rapporteur they do so. Finally, the international on Contemporary forms of Racism, as community "renews its expression of previously he had only visited four outrage" at the use of the systematic States. However, Cuba’s efforts were practice of rape as a weapon of war fruitless and the draft Resolution was against women and children and as an rejected by 32 votes, with 13 abstentions instrument of “ethnic cleansing.” and 3 in favour.

A series of resolutions were also The Commission decided in adopted on the situation of human rights Resolution 1995/73 on Extrajudicial, Summary or Arbitrary Executions, and in Indonesian held East Timor adopted without a vote, to extend the under item 12. The Chair called for an mandate of the Special Rapporteur for a immediate ceasefire in the Republic of further three years, whilst also expres­ Chechnya and for the unhindered deli­ sing concern over the lack of resources very of humanitarian aid to all groups of made available to him. the civilian population in need. It deplored the grave violations of human rights and In response to draft Resolution L.90 on expressed deep concern over the dispro­ the continued violations of human rights portionate use of force used by the in the Islamic Republic of Iran, the Russian forces in the small Caucasian Iranian delegation delivered a written breakaway republic. As for East Timor, the Chairman stated that the and oral statement containing remarks Commission welcomed the decision of on the proposal which purported to the Indonesian Government to investi­ extend the mandate of the Special gate the recent violent incident where Rapporteur for a further year. The dele­ six people were killed and to make the gation alleged that the tone and wording findings public. It called for the govern­ of the text went far beyond that of the ment to implement the findings of the Special rapporteur’s report that, in itself, Special Rapporteur on Extrajudicial, presented a "distorted picture” of Iran. Summary or Arbitrary Executions. The remarks were made in reference to each clause of L.90 in an attempt to indi­ cate the "biased and unbalanced judge­ With regard to Colombia, there was much NGO action throughout the six ments” of its sponsors. L.90 was, never­ weeks to try and bring the seriousness theless, adopted with 28 votes in favour, 8 and extent of the human rights situation to against, and 17 abstentions the Commission's attention, including a (Resolution 1995/68). day of silent protest when yellow arm­ bands were worn by participants. Even The Commission, in Resolution though, there was no resolution drafted 1995/70, called upon the Government of nor any statements by the Chairman, as Haiti to take the legal and political mea­ was the case for Chechnya and East sures necessary for the improvement of Timor, there was nonetheless a letter the administration of justice and of the written on behalf of the Colombian prison system and condemned the Government in which it invited visits human rights violations which took from Special Rapporteurs and promised to place during the previous de facto regime. cooperate fully with them. This was then The situation in Zaire was highlighted read out to the members of the by the adoption of Resolution 1995/69, Commission and officially taken note of. which deplored the continuing serious violations of human rights there and Draft Resolution L.100 on the decided to extend the mandate of the human rights situation in Nigeria was Special Rapporteur (Mr. Roberto rejected in a roll-call vote of 17 in favour G arreton). to 21 against, with 15 abstentions. If passed, it would have called upon the The Chairman issued statements on government to ensure the observance of all the situation in Russian held Chechnya human rights, in particular by restoring habecut corpus, releasing all political priso­ Slovenia, Thailand, and Uganda. The ners, restoring freedom of the press, lifting following countries continue under arbitrarily imposed travel restrictions, consideration, by public announcement and ensuring full respect for the right of of 22 February 1995: Armenia, trade unionists. Algeria, speaking on Azerbaijan, Chad, and Saudi Arabia. behalf of the African Group, said that they decided by consensus that the draft was the result of a political approach that would not help improve the situa­ Draft Declaration on the Rights tion in Nigeria. and Responsibilities of Human Rights Defenders (Item 23) Unprecedented action took place on the subject of China in this year’s ses­ The Chairman of the Working sion. When draft Resolution L.86 was Group on the draft Declaration on the initially presented, the Chinese delega­ Rights and Responsibilities of Human tion tabled a no-action vote. Previously, Rights Defenders, Mr. Jan Helgesen, voting on a Chinese resolution has presented before the Commission his always been prevented by a successful report on tenth session no-action motion. This time, however, (E/CN.4/1995/93). Inspite the efforts the no-action vote was defeated, and a made by some States and NGOs, results vote on the resolution itself followed. obtained after ten years of work are few. The resolution was very narrowly rejected Some delegations, including the USA, by 21 votes to 20 with 12 abstentions. Chile, Canada and Iceland, support the Under the draft Resolution, the work of the Working Group, and said Commission called upon that country’s that it should be necessary to extend its government to take further measures to mandate in order to continue with its ensure the observance of all human work. rights, including the rights to freedom of assembly, religion, and a fair trial, as A joint statement presented by several well as the rights of women, and to NGOs, including the ICJ, pointed out improve the impartial administration of that it was essential for grass-roots orga­ justice. The resolution would have also nizations to have an international instru­ included a visit by the Special ment that could help their efforts in pro­ Rapporteur on Religious Intolerance and other thematic special rapporteurs moting and protecting human rights. and working groups. However, the strongest opposition to the recognition of NGOs rights stem from some of the Working Group’s members.

Procedure 1503 Resolution 1995/84, recommended to the ECOSOC an open-ended working A number of countries were conside­ group of the Commission on Human red under procedure 1503. Procedure Rights to meet for a period of one week 1503 was discontinued for the following: prior to the fifty-second session in order to Albania, the Lao People’s Democratic continue work on the elaboration of a Republic, Latvia, Moldova, Rwanda, draft declaration. Advisory Services (Item 21) The resolution on Somalia strongly urged all parties rn the country to res­ Countries such as El Salvador pect the human rights and fundamental (Resolution 1995/63), Guatemala freedoms of all, apply crimrnal justice (Resolution 1995/51), Togo (1995/52), standards and protect UN personnel, as Cambodia (Resolutionl995/55) and well as requested the Independent Somalia (Resolution 1995/56) will recei­ Expert to study ways and means of how ve advisory services from the UN to best implement a programme of advi­ Centre for Human Rights. sory services for Somalra. The UN Secretary-General was also requested to In relation to El Salvador, the report to the Commission at its fifty- Commission decided to conclude consi­ second session on the human rights deration of this case, taking into account situation. the recommendations made by the Independent Expert (Mr. Pedro Nikken), as well as the progress of the peace process in the country. The UN Centre for Human Rights was requested to facilitate the implementation of the technical cooperation agreement in close contact with the Salvadoran Government.

In the case of Guatemala, the Commission recognised the efforts made by the Government of Guatemala, and took into account the recommendations of the Independent Expert (Ms. Monica Pinto) as well as the contributions of the UN Mission in Guatemala (MINU- GUA). The Commission decided to consider the question at its fifty-second session under the appropriate agenda item, in the light of the report of the Independent Expert.

The Special Representative of the UN Secretary-General for Cambodia (Mr. Michael D. Kirby, who is also Chairman of the ICJ Executive Committee), was requested to report to the Commission at rts fifty-second ses­ sion on the role of the Centre for Human Rights in assisting the Government and people of Cambodia and to provide an interim report to the General Assembly at its fiftieth session. Council of Europe Framework. Convention for the Protection of National Minorities and Explanatory Report Strasbourg, February 1995

Introduction: Consrdering that the aim of the Council of Europe is to achieve greater The Framework Convention for the unity between its members for the pur­ Protection of National Minorities, pose of safeguarding and realising the drawn up within the Council of Europe by ideals and principles which are their Ad Hoc Committee for the Protection of common heritage; National Minorities (CAHMIN) under the authority of the Committee of Considering that one of the methods Ministers, was adopted by the by which that aim is to be pursued is the Committee of Ministers of the Council maintenance and further realisation of of Europe on 10 November 1994 and human rights and fundamental free­ opened for signature by the member doms; States of the Council of Europe on 1 February 1995. Non-member States Wishing to follow-up the Declaration may also be invited by the Committee of of the Heads of State and Government Ministers to become Party to this instru­ of the member States of the Council of ment. Europe adopted in Vienna on 9 October 1993; This publication contains the text of the Framework Convention for the Being resolved to protect within their respective territories the existence of Protection of National Minorities as national minorities; well as the explanatory report. Considering that the upheavals of European history have shown that the Framework Convention protection of national minorities is for the Protection essential to stability, democratic security of National Minorities and peace in this continent;

The member States of the Council of Considering that a pluralist and Europe and the other States, signatories to genuinely democratic society should not the present framework Convention, only respect the ethnic, cultural, linguis­ tic and religious identity of each person integrity and national sovereignty of belonging to a national minority but States; also create appropriate conditions enabling them to express, preserve and Being determined to implement the develop this identity; principles set out in this framework Convention through national legislation Considering that the creation of a cli­ and appropriate governmental policies, mate of tolerance and dialogue is neces­ sary to enable cultural diversity to be a Have agreed as follows: source and a factor, not of division, but of enrichment for each society;

Considering that the realisation of a Section I tolerant and prosperous Europe does Article 1 not depend solely on cooperation bet­ ween States but also requires transfrontier The protection of national minorities cooperation between local and regional and of the rights and freedoms of per­ authorities without prejudice to the sons belonging to those minorities forms constitution and territorial integrity of an integral part of the international pro­ each State; tection of human rights, and as such falls within the scope of international coope­ Having regard to the Convention for ration. the Protection of Human Rights and Fundamental Freedoms and the Article 2 Protocols thereto; The provisions of this framework Having regard to the commitments Convention shall be applied in good concerning the protection of national faith, in a spirit of understanding and minorities in United Nations conven­ tolerance and in conformity with the tions and declarations and in the docu­ principles of good neighbourliness, ments of the Conference on Security friendly relations and cooperation bet­ and Cooperation m Europe, particularly ween States. the Copenhagen Document of 29 June 1990; Article 3

Being resolved to define the prin­ 1 Every person belonging to a natio­ ciples to be respected and the obliga­ nal minority shall have the right tions which flow from them, in order to freely to choose to be treated or not to ensure, in the member States and such be treated as such and no disadvan­ other States as may become Parties to tage shall result from this choice or the present instrument, the effective from the exercise of the rights which protection of national minorities and of are connected to that choice. the rights and freedoms of persons belonging to those minorities, within the 2 Persons belonging to national mino­ Rule of Law, respecting the territorial rities may exercise the rights and enjoy the freedoms flowing from the 2 Without prejudice to measures principles enshrined in the present taken in pursuance of their general framework Convention individually integration policy, the Parties shall as well as in community with others. refrain from policies or practices aimed at assimilation of persons belonging to national minorities Section II against their will and shall protect these persons from any action aimed Article 4 at such assimilation.

1 The Parties undertake to guarantee Article 6 to persons belonging to national minorities the right of equality before 1 The Parties shall encourage a sprrit the law and of equal protection of of tolerance and intercultural dia­ the law. In this respect, any discrimi­ logue and take effective measures to nation based on belonging to a promote mutual respect and unders­ national minority shall be prohibi­ tanding and cooperation among all ted. persons living on their territory, irrespective of those persons' ethnic, 2 The Parties undertake to adopt, cultural, linguistic or religious iden­ where necessary, adequate measures tity m particular in the fields of edu­ in order to promote, in all areas of cation, culture and the media. economic, social, political and cultural life, full and effective equality bet­ 2 The Parties undertake to take ween persons belonging to a natio­ approprrate measures to protect per­ nal minority and those belonging to sons who may be subject to threats the majority. In this respect, they or acts of discrimination, hostility or shall take due account of the specific violence as a result of their ethnic, conditions of the persons belonging cultural, linguistic or religious iden­ to national minorities. tity.

3 The measures adopted in accordan­ Article 7 ce with paragraph 2 shall not be considered to be an act of discrimi­ The Parties shall ensure respect for nation. the right of every person belonging to a national minority to freedom of peaceful Article 5 assembly, freedom of associatron, free­ dom of expression, and freedom of 1 The Parties undertake to promote thought, conscience and religion. the conditions necessary for persons belonging to national minorities to Article 8 maintain and develop their culture, and to preserve the essential ele­ The Parties undertake to recognise ments of therr rdentity, namely their that every person belonging to a natio­ religion, language, traditions and nal minority has the right to manifest his cultural heritage. or her religion or belief and to establish religious institutions, organizations and order to promote tolerance and permit associations. cultural pluralism.

Article 10 Article 9 1 The Parties undertake to recognise 1 The Parties undertake to recognise that every person belonging to a that the right to freedom of expres­ national minority has the right to use sion of every person belonging to a freely and without interference his national minority includes freedom or her minority language, in private to hold opinions and to receive and and in public, orally and in writing. impart information and ideas in the minority language, without interfe­ rence by public authorities and 2 In areas inhabited by persons belon­ regardless of frontiers. The Parties ging to national minorities traditio­ shall ensure, within the framework nally or in substantial numbers, if of their legal systems, that persons those persons so request and where such a request corresponds to a real belonging to a national minority are need, the Parties shall endeavour to not discriminated against in their ensure, as far as possible, the condi­ access to the media. tions which would make it possible to use the minority language in rela­ 2 Paragraph 1 shall not prevent tions between those persons and the Parties from requiring the licensing, administrative authorities. without discrimination and based on objective criteria, of sound radio and 3 The Parties undertake to guarantee television broadcasting, or cinema the right of every person belonging enterprises. to a national minority to be informed promptly, in a language which he or 3 The Parties shall not hinder the she understands, of the reasons for creation and the use of printed his or her arrest, and of the nature media by persons belonging to and cause of any accusation against national minorities. In the legal fra­ him or her, and to defend himself or mework of sound radio and televi­ herself in this language, if necessary sion broadcasting, they shall ensure, as with the free assistance of an inter­ far as possible, and taking into preter. account the provisions of paragraph 1, that persons belonging to national Article 11 minorities are granted the possibility of creating and using their own 1 The Parties undertake to recognise media. that every person belonging to a national minority has the right to use 4 In the framework of their legal sys­ his or her surname (patronym) and tems, the Parties shall adopt adequa­ first names in the minority language te measures in order to facilitate and the right to official recognition access to the media for persons of them, according to modalities belonging to national minorities and in provided for in their legal system. 2 The Parties undertake to recognise that every person belonging to a national minority has the right to 1 Within the framework of their edu­ display in his or her minority lan­ cation systems, the Parties shall guage signs, inscriptions and other recognise that persons belonging to a national minority have the right to information of a private nature set up and to manage their own pri­ visible to the public. vate educational and training esta­ blishments. 3 In areas traditionally inhabited by substantial numbers of persons 2 The exercise of this right shall not belonging to a national minority, the entail any financial obligation for the Parties shall endeavour, in the fra­ Parties. mework of their legal system, inclu­ ding, where appropriate, agree­ Article 14 ments with other States, and taking into account their specific condi­ 1 The Parties undertake to recognise tions, to display traditional local that every person belonging to a names, street names and other topo­ national minority has the right to graphical indications intended for learn his or her minority language. the public also in the minority lan­ guage when there is a sufficient 2 In areas inhabited by persons belon­ demand for such indications. ging to national minorities traditio­ nally or in substantial numbers, if Article 12 there is sufficient demand, the Parties shall endeavour to ensure, as 1 The Parties shall, where appropria­ far as possible and within the frame­ te, take measures in the fields of work of their education systems, education and research to foster that persons belonging to those knowledge of the culture, history, minorities have adequate opportuni­ language and religion of their national ties for being taught the minority language or for receiving instruction minorities and of the majority. in this language. 2 In this context the Parties shall inter 3 Paragraph 2 of this article shall be alia provide adequate opportunities implemented without prejudice to for teacher training and access to the learning of the official language textbooks, and facilitate contacts or the teaching in this language. among students and teachers of dif­ ferent communities. Article 15

3 The Parties undertake to promote The Parties shall create the condi- equal opportunities for access to tions necessary for the effective partici- education at all levels for persons pation of persons belonging to national belonging to national minorities. minorities in cultural, social and econo- mic life and in public affairs, in particular 2 Where relevant, the Parties shall those affecting them. take measures to encourage trans­ frontier cooperation. Article 16 Article 19 The Parties shall refrain from mea­ sures which alter the proportions of the The Parties undertake to respect and population in areas inhabited by persons implement the principles enshrined in belonging to national minorities and are the present framework Convention aimed at restricting the rights and free­ making, where necessary, only those doms flowing from the principles enshri­ limitations, restrictions or derogations ned in the present framework which are provided for in international Convention. legal instruments, in particular the Convention for the Protection of Article 17 Human Rights and Fundamental Freedoms, in so far as they are relevant to 1 The Parties undertake not to interfe­ the rights and freedoms flowing from re with the right of persons belon­ the said principles. ging to national minorities to establi­ sh and maintain free and peaceful contacts across frontiers with per­ sons lawfully staying in other States, Section III in particular those with whom they Article 20 share an ethnic, cultural, linguistic or religious identity, or a common In the exercise of the rights and free­ cultural heritage. doms flowing from the principles enshri­ ned in the present framework 2 The Parties undertake not to interfe­ Convention, any person belonging to a re with the right of persons belon­ national minority shall respect the natio­ ging to national minorities to partici­ nal legislation and the rights of others, in pate in the activities of particular those of persons belonging to non-governmental organizations, the majority or to other national minori­ both at the national and internatio­ ties. nal levels. Article 21 Article 18 Nothing in the present framework 1 The Parties shall endeavour to Convention shall be interpreted as conclude, where necessary, bilateral implying any right to engage in any acti­ and multilateral agreements with vity or perform any act contrary to the other States, in particular neighbou­ fundamental principles of international ring States, in order to ensure the law and in particular of the sovereign protection of persons belonging to equality, territorial integrity and politi­ the national minorities concerned. cal independence of States. the Council of Europe full informa­ tion on the legislative and other Nothing in the present framework measures taken to give effect to the Convention shall be construed as limi­ principles set out m this framework ting or derogating from any of the Convention. human rights and fundamental freedoms which may be ensured under the laws of 2 Thereafter, each Party shall transmit any Contracting Party or under any to the Secretary-General on a perio­ other agreement to which it is a Party. dical basis and whenever the Committee of Ministers so requests Article 23 any further information of relevance to the implementation of this frame­ The rights and freedoms flowing work Convention. from the principles enshrined in the pre­ sent framework Convention, in so far as they are the subject of a corresponding 3 The Secretary-General shall for­ provision in the Convention for the ward to the Committee of Ministers Protection of Human Rights and the information transmitted under Fundamental Freedoms or in the the terms of this Article. Protocols thereto, shall be understood so as to conform to the latter provisions. Article 26 1 In evaluating the adequacy of the measures taken by the Parties to Section IV give effect to the principles set out in this framework Convention, the Article 24 Committee of Ministers shall be assisted by an advisory committee, 1 The Committee of Ministers of the the members of which shall have Council of Europe shall monitor the implementation of this framework recognised expertise in the field of Convention by the Contracting the protection of national minorities. Parties. 2 The composition of this advisory 2 The Parties which are not members committee and its procedure shall be of the Council of Europe shall parti­ determined by the Committee of cipate in the implementation mecha­ Ministers within a period of one nism, according to modalities to be year following the entiy into force of determined. this framework Convention.

Article 25 Section V 1 Within a period of one year follo­ wing the entry into force of this fra­ Article 27 mework Convention in respect of a Contracting Party, the latter shall This framework Convention shall be transmit to the Secretary-General of open for signature by the member States of the Council of Europe. Up until the has not yet done so, and any other non­ date when the Convention enters into member State. force, it shall also be open for signature by any other State so invited by the 2 In respect of any acceding Committee of Ministers. It is subject to State, the framework Convention shall ratification, acceptance or approval. enter into force on the first day of the Instruments of ratification, acceptance month following the expiration of a period or approval shall be deposited with the of three months after the date of the Secretary General of the Council of deposit of the instrument of accession Europe. with the Secretary-General of the Council of Europe. Article 28 Article 30 1 This framework Convention shall enter into force on the first day of 1 Any State may at the time of the month following the expiration of a signature or when depositing its instru­ period of three months after the date on ment of ratification, acceptance, appro­ which twelve member States of the val or accession, specify the territory or Council of Europe have expressed their territories for whose international rela­ consent to be bound by the Convention in tions it is responsible to which this fra­ accordance with the provisions of mework Convention shall apply. Article 27. 2 Any State may at any later date, 2 In respect of any member State by a declaration addressed to the 1 which subsequently expresses its Secretary-General of the Council of consent to be bound by it, the frame­ Europe, extend the application of this : work Convention shall enter into force framework Convention to any other ter­ on the first day of the month following ritory specified in the declaration. In the expiration of a period of three respect of such territory the framework months after the date of the deposit of Convention shall enter into force on the the instrument of ratification, acceptan­ first day of the month following the ce or approval. expiration of a period of three months Article 29 after the date of receipt of such declaration by the Secretary General. 1 After the entry into force of this framework Convention and after 3 Any declaration made under the consulting the Contracting States, the two preceding paragraphs may, in res­ Committee of Ministers of the Council pect of any territory specified in such of Europe may invite to accede to the declaration, be withdrawn by a notifica­ Convention, by a decision taken by the tion addressed to the Secretary-General. majority provided for in Article 20.d of The withdrawal shall become effective the Statute of the Council of Europe, on the first day of the month following any non-member State of the Council of the expiration of a period of three Europe which, invited to sign in accor­ months after the date of receipt of such dance with the provisions of Article 27, notification by the Secretary-General. both texts being equally authentic, in a single copy which shall be deposited in 1 Any Party may at any time the archives of the Council of Europe. denounce this framework Convention The Secretary-General of the Council of by means of a notification addressed to Europe shall transmit certified copies to the Secretary-General of the Council of each member State of the Council of Europe. Europe and to any State invited to sign or accede to this framework 2 Such denunciation shall become Convention. effective on the first day of the month following the expiration of a period of six months after the date of receipt of Explanatory Report the notification by the Secretary- General. Background

Article 32 1. The Council of Europe has exami­ ned the situation of national minorities The Secretary-General of the on a number of occasions over a per­ Council of Europe shall notify the mem­ iod of more than forty years. In its ber States of the Council, other signatory very first year of existence (1949), States and any State which has acceded to the Parliamentary Assembly reco­ this framework Convention, of: gnised, in a report of its Committee on Legal and Administrative a any signature; Questions, the importance of “the problem of wider protection of the b the deposit of any instrument of rights of national minorities.” In ratification, acceptance, appro­ 1961, the Assembly recommended val or accession; the inclusion of an article in a second additional protocol to guarantee to national minorities certain rights not c any date of entry into force of covered by the European this framework Convention m Convention on Human Rights accordance with Articles 28, 29 (ECHR). The latter simply refers to and 30; "association with a national minori­ ty" in the non-discrimination clause d any other act, notification or provided for in Article 14. communication relating to this Recommendation 285 (1961) propo­ framework Convention. sed the following wordrng for the draft article on the protection of In witness whereof the undersigned, national minorities: being duly authorised thereto, have srgned this framework Convention. “Persons belonging to a natio­ nal minority shall not be Done at Strasbourg, this 1st day of denied the right, in community February 1995, in English and French, with the other members of their group, and as far as com­ in which the Council of Europe patible with public order, to could undertake an activity for the enjoy their own culture, to use protection of national minorities, their own language, to establi­ taking into account the work done sh their schools and receive by the Conference on Security and teaching in the language of Cooperation in Europe (CSCE) and their choice or to profess and the United Nations, and the reflec­ practise their own religion.” tions within the Council of Europe.

2. The committee of experts, which 4. In M ay 1992, the Committee of had been instructed to consider Ministers instructed the CDDH to whether it was possible and advi­ examine the possibility of formula­ sable to draw up such a protocol, ting specific legal standards relating adjourned its activities until a final to the protection of national minori­ decision had been reached on the ties. To this end, the CDDH establi­ Belgian linguistics cases concerning shed a committee of experts (DH- the language used in education MIN) which, under new terms of (European Court of Human Rights. reference issued in M arch 1993, was Judgment of 27 July 1968, Series A required to propose specific legal No. 6). In 1973 it concluded that, standards in this area, bearing in from a legal point of view, there was mind the principle of complementa­ no special need to make the rights of rity of work between the Council of minorities the subject of a further Europe and the CSCE. The CDDH protocol to the ECHR. However, and the DH-MIN took various texts the experts considered that there into account, in particular the pro­ posal for a European Convention for was no major legal obstacle to the the Protection of National adoption of such a protocol if it were Minorities drawn up by the considered advisable for other rea­ European Commission for sons. Democracy through Law (the so- called Venice Commission), the 3. More recently, the Parliamentary Austrian proposal for an additional Assembly recommended a number protocol to the ECHR, the draft of political and legal measures to the additional protocol to the ECHR Committee of Ministers, in particu­ included in Assembly lar the drawing up of a protocol or a Recommendation 1201 (1993) and convention on the rights of national other proposals. This examination minorities. Recommendation 1134 culminated in the report of the (1990) contains a list of principles CDDH to the Committee of which the Assembly considered Ministers of 8 September 1993, necessary for the protection of natio­ which included various legal stan­ nal minorities. In October 1991, the dards which might be adopted in Steering Committee for Human this area and the legal instruments in Rights (CDDH) was given the task of which they could be laid down. In considering, from both a legal and a this connection, the CDDH noted political point of view, the conditions that there was no consensus on the interpretation of the term “national reflected the decisions taken in minorities.” Vienna. The committee, made up of experts from the Council of 5. The decisive step was taken when Europe’s member States, started the Heads of State and Government work in late January 1994, with the of the Council of Europe’s member participation of representatives of States met in Vienna at the summit the CDDH, the Council for Cultural of 8 and 9 October 1993. There, it Co-operation (CDCC), the Steering was agreed that the national minorities Committee on the Mass Media which the upheavals of histoiy have (CDMM) and the European established in Europe had to be pro­ Commission for Democracy through tected and respected as a contribu­ Law. The High Commissioner on tion to peace and stability. In parti­ National Minorities of the CSCE cular, the Heads of State and and the Commission of the Government decided to enter into European Communities also took legal commitments regarding the part, as observers. protection of national minorities. Appendix II of the Vienna 7. O n 15 April 1994, CA H M IN sub­ Declaration instructed the mitted an interim report to the Committee of Ministers: Committee of Ministers, which was then communicated to the • to draft with minimum delay a Parliamentary Assembly (Doc. framework convention speci­ 7109). At its 94th session in May fying the principles which 1994, the Committee of Ministers contracting States commit them­ expressed satisfaction with the pro­ selves to respect, in order to gress achieved under the terms of assure the protection of national reference flowing from the Vienna minorities. This instrument Declaration. would also be open for signature by non-member States; 8. A certain number of provisions of the framework Convention requi­ • to begin work on drafting a pro­ ring political arbitration as well as tocol complementing the those concerning the monitoring of European Convention on the implementation were drafted by Human Rights in the cultural the Committee of Ministers (517bis field by provisions guaranteeing meeting of Ministers’ Deputies, 7 individual rights, in particular October 1994). for persons belonging to natio­ nal minorities. 9. At its meeting from 10 to 14 October 1994, CAHMIN decided to submit 6. O n 4 November 1993, the the draft framework Convention to Committee of Ministers established the Committee of Ministers, which an ad hoc Committee for the adopted the text at the 95th Protection of National Minorities Ministerial Session on 10 November (CAHMIN). Its terms of reference 1994. The framework Convention was opened for signature by the 12. It should also be pointed out that the Council of Europe’s member States framework Convention contains no on 1 February 1995. definition of the notion of “national minority.” It was decided to adopt a pragmatic approach, based on the General Considerations recognition that at this stage, it is Objectives of the framework impossible to arrive at a definition Convention capable of mustering general sup­ port of all Council of Europe mem­ 10. The framework Convention is the ber States. first legally binding multilateral ins­ trument devoted to the protection of 13. The implementation of the prin­ national minorities in general. Its ciples set out in this framework aim is to specify the legal principles Convention shall be done through which States undertake to respect in national legislation and appropriate order to ensure the protection of governmental policies. It does not national minorities. The Council of imply the recognition of collective Europe has thereby given effect to rights. The emphasis is placed on the the Vienna Declaration’s call protection of persons belonging to (Appendix II) for the political com­ national minorities, who may exerci­ mitments adopted by the se their rights individually and in Conference on Security and community with others (see Article Cooperation in Europe (CSCE) to 3, paragraph 2). In this respect, the be transformed, to the greatest pos­ framework Convention follows the sible extent, into legal obligations. approach of texts adopted by other international organizations.

Approaches and fundamental concepts Structure of the framework Convention 11. In view of the range of different situations and problems to be resol­ 14. Apart from its Preamble, the frame­ ved, a choice was made for a frame­ work Convention contains an opera­ work Convention which contains tive part which is divided into five mostly programme-type provisions sections. setting out objectives which the Parties undertake to pursue. These 15. Section I contains provisions which, in provisions, which will not be directly a general fashion, stipulate certain applicable, leave the States concer­ fundamental principles which may ned a measure of discretion in the serve to elucidate the other substan­ implementation of the objectives tive provisions of the framework which they have undertaken to Convention. achieve, thus enabling them to take particular circumstances into 16. Section II contains a catalogue of account. specific principles. 17. Section III contains various provi­ gely inspired by that declaration, in sions concerning the interpretation particular its Appendix II. The same and application of the framework is true of the choice of undertakings Convention. included in Sections I and II of the framework Convention. 18. Section IV contains provisions on the monitoring of the implementa­ 23. The Preamble mentions, in a non- tion of the framework Convention. exhaustive way, three further sources of inspiration for the content 19. Section V contains the final clauses of the framework Convention: the which are based on the model final Convention for the Protection of clauses for conventions and agree­ Human Rights and Fundamental ments concluded within the Council of Freedoms (ECHR) and instruments Europe. which contain commitments regar­ ding the protection of national mino­ rities of the United Nations and the Commentary on the Provisions CSCE. of the Framework Convention

Preamble 24. The Preamble reflects the concern of the Council of Europe and its 20. The Preamble sets out the reasons member States about the risk to the for drawing up this framework existence of national minorities and Convention and explains certain is inspired by Article 1, paragraph 1, basic concerns of its drafters. The of the United Nations Declaration opening words already indicate that on the Rights of Persons belonging this instrument may be signed and to National or Ethnic, Religious and ratified by States not members of the Linguistic Minorities (Resolution Council of Europe (see Articles 27 47/135 adopted by the General and 29). Assembly on 18 December 1992).

21. The Preamble refers to the statutory 25. Given that the framework aim of the Council of Europe and to Convention is also open to States one of the methods by which this which are not members of the aim is to be pursued: the maintenan­ Council of Europe, and to ensure a ce and further realisation of human more comprehensive approach, it rights and fundamental freedoms. was decided to include certain prin­ ciples from which flow rights and 22. Reference is also made to the Vienna freedoms which are already guaran­ Declaration of Heads of State and teed in the ECHR or in the proto­ Government of the member States cols thereto (see also in connection of the Council of Europe, a docu­ with this, Article 23 of the frame­ ment which laid the foundation for work Convention). the present framework Convention (see also paragraph 5 above). In 26. The reference to United Nations fact, the text of the Preamble is lar­ conventions and declarations recalls the work done at the universal level, Section I for example in the International Covenant on Civil and Political Article 1 Rights (Article 27) and in the 30. The main purpose of Article 1 is to Declaration on the Rights of specify that the protection of natio­ Persons belonging to National or nal minorities, which forms an inte­ Ethnic, Religious and Linguistic gral part of the protection of human Minorities. However this reference rights, does not fall within the reser­ does not extend to any definition of ved domain of States. The statement a national minority which may be that this protection “forms an inte­ contained in these texts. gral part of the international protec­ tion of human rights” does not 27. The reference to the relevant CSCE confer any competence to interpret commitments reflects the desire the present framework Convention expressed in Appendix II of the on the organs established by the Vienna Declaration that the Council ECHR. of Europe should apply itself to transforming, to the greatest pos­ 31. The article refers to the protection of sible extent, these political commit­ national minorities as such and of ments into legal obligations. The the rights and freedoms of persons Copenhagen Document in particu­ belonging to such minorities. This lar provided guidance for drafting distinction and the difference in the framework Convention. wording make it clear that no collec­ tive rights of national minorities are 28. The penultimate paragraph in the envisaged (see also the commentary Preamble sets out the main aim of to Article 3). The Parties do howe­ the framework Convention: to ensure ver recognise that protection of a the effective protection of national national minority can be achieved minorities and of the rights of per­ through protection of the rights of sons belonging to those minorities. It individuals belonging to such a also stresses that this effective pro­ minority. tection should be ensured within the Article 2 rule of law, respecting the territorial integrity and national sovereignty of 32. This article provides a set of prin­ States. ciples governing the application of the framework Convention. It is, 29. The purpose of the last recital is to inter alia, inspired by the United indicate that the provisions of this Nations Declaration on Principles of framework Convention are not International Law concerning directly applicable. It is not concer­ Friendly Relations and Cooperation ned with the law and practice of the among States in accordance with the Parties in regard to the reception of Charter of the United Nations international treaties in the internal (General Assembly Resolution 2625 legal order. (XXV) of 24 October 1970). The principles mentioned in this provi­ and freedoms flowing from the prin­ sion are of a general nature but do ciples of the framework Convention have particular relevance to the field may be exercised individually or in covered by the framework community with others. It thus reco­ Convention. gnises the possibility of joint exercise of those rights and freedoms, which is Article 3 distinct from the notion of collective rights . The term “others" shall be 33. This article contains two distinct but understood in the widest possible related principles laid down in two sense and shall include persons different paragraphs. belonging to the same national minority, to another national minori­ Paragraph 1 ty, or to the majority.

34. Paragraph 1 firstly guarantees to every person belonging to a national minority the freedom to choose to be Section II treated or not to be treated as such. This provision leaves it to every Article 4 such person to decide whether or 38. The purpose of this article is to not he or she wishes to come under ensure the applicability of the prin­ the protection flowing from the ciples of equality and non-discrimi- principles of the framework nation for persons belonging to Convention. national minorities. The provisions of this article are to be understood in 35. This paragraph does not imply a the context of this framework right for an individual to choose Convention. arbitrarily to belong to any natronal minority. The individuals subjective Paragraphs 1 and 2 choice is inseparably linked to objec­ tive criteria relevant to the person’s 39. Paragraph 1 takes the classic identity. approach to these principles. Paragraph 2 stresses that the pro­ 36. Paragraph 1 further provides that motion of full and effective equality no disadvantage shall arise from the between persons belonging to a free choice it guarantees, or from the national minority and those belon­ exercise of the rights whrch are ging to the majority may require the connected to that choice. This part Parties to adopt special measures of the provision aims to secure that that take into account the specific the enjoyment of the freedom to conditions of the persons concerned. choose shall also not be impaired Such measures need to be “adequa­ indirectly. te,” that is in conformity with the proportionality principle, in order to Paragraph 2 avoid violation of the rights of others as well as discrimination against 37. Paragraph 2 provides that the rights others. This principle requires, among other things, that such mea­ guistic or religious differences sures do not extend, in time or in necessarily lead to the creation of scope, beyond what is necessary in national minorities (see in this order to achieve the aim of full and regard the report of the CSCE mee­ effective equality. ting of experts, held in Geneva in 1991, section II, paragraph 4). 40. No separate provision deahng speci­ fically with the principle of equal 44. The reference to “traditions” is not opportunities has been included in an endorsement or acceptance of the framework Convention. Such an practices which are contrary to inclusion was considered unnecessa­ national law or international stan­ ry as the principle is already implied dards. Traditional practices remain in paragraph 2 of this article. Given subject to limitations arising from the principle of non-discrimination the requirements of public order. set out in paragraph 1 the same was considered true for freedom of Paragraph 2 movement. 45. The purpose of paragraph 2 is to Paragraph 3 protect persons belonging to natio­ nal minorities from assimilation 41. The purpose of paragraph 3 is to against their will. It does not prohi­ make clear that the measures refer­ bit voluntary assimilation. red to in paragraph 2 are not to be regarded as contravening the prin­ 46. Paragraph 2 does not preclude the ciples of equality and non-discrimi­ Parties from taking measures in pur­ nation. Its aim is to ensure to per­ suance of their general integration sons belonging to national minorities policy. It thus acknowledges the effective equality along with persons importance of social cohesion and belonging to the majority. reflects the desire expressed in the preamble that cultural diversity be a Article 5 source and a factor, not of division, but of enrichment to each society. 42. This article essentially aims at ensu­ ring that persons belonging to natio­ Article 6 nal minorities can maintain and develop their culture and preserve 47. This article is an expression of the their identity. concerns stated in Appendix III to the Vienna Declaration (Declaration Paragraph 1 and Plan of Action on combating racism, xenophobia, anti-Semitism 43. Paragraph 1 contains an obligation and intolerance). to promote the necessary conditions in this respect. It lists four essential ele­ Paragraph 1 ments of the identity of a national minority. This provision does not 48. Paragraph 1 stresses a spirit of tole­ imply that all ethnic, cultural, lin­ rance and intercultural dialogue and points out the importance of the the corresponding provisions in Parties’ promoting mutual respect, Articles 9, 10 and 11 of the ECHR), understanding and cooperation but they are particularly relevant for among all who live on their territory. the protection of national minorities. The fields of education, culture and For the reasons stated above in the the media are specifically mentioned commentary on the preamble, it was because they are considered particu­ decided to include certain underta­ larly relevant to the achievement of kings which already appear in the these aims. ECHR.

49. In order to strengthen social cohe­ 52. This provision may imply for the sion, the aim of this paragraph is, Parties certain positive obligations inter alia, to promote tolerance and to protect the freedoms mentioned intercultural dialogue, by elimina­ against violations which do not ema­ ting barriers between persons belon­ nate from the State. Under the ging to ethnic, cultural, linguistic ECHR, the possibility of such posi­ and religious groups through the tive obligations has been recognised encouragement of intercultural by the European Court of Human organizations and movements which Rights. seek to promote mutual respect and understanding and to integrate these 53. Some of the freedoms laid down in persons into society whilst preser­ ving their identity. Article 7 are elaborated upon in Articles 8 and 9. Paragraph 2 Article 8 50. This provision is inspired by para­ graph 40.2 of the Copenhagen 54. This article lays down more detailed Document of the CSCE. This obli­ rules for the protection of freedom gation aims at the protection of all of religion than Article 7. It com­ persons who may be subject to bines several elements from para­ threats or acts of discrimination, graphs 32.2, 32.3 and 32.6 of the hostility or violence, irrespective of CSCE Copenhagen Document into the source of such threats or acts. a single provision. This freedom of course applies to all persons and Article 7 persons belonging to a national minority should, in accordance with 51. The purpose of this article is to gua­ Article 4, enjoy it as well. Given the rantee respect for the right of every importance of this freedom in the person belonging to a national mino­ present context, it was felt particu­ rity to the fundamental freedoms larly appropriate to give it special mentioned therein. These freedoms attention. are of course of a universal nature, that is they apply to all persons, Article 9 whether belonging to a national minority or not (see, for instance, 55. This article contains more detailed rules for the protection of the free­ 60. The words “sound radio," which dom of expression than Article 7. also appear in paragraph 3 of this article, do not appear in the corres­ Paragraph 1 ponding sentence in Article 10 of the ECHR. They are used in order to 56. The first sentence of this paragraph reflect modern terminology and do is modelled on the second sentence not imply any material difference in of Article 10, paragraph 1, of the meaning from Article 10 of the ECHR. Although the sentence ECHR. refers specifically to the freedom to receive and impart information and Paragraph 3 ideas m the minority language, it also implies the freedom to receive 61. The first sentence of this paragraph, and impart information and ideas in dealing with the creation and use of the majority or other languages. printed media, contains an essential­ ly negative undertaking whereas the 57. The second sentence of this paragra­ more flexibly worded second sen­ ph contains an undertaking to ensure tence emphasises a positive obliga­ that there is no discrimination in tion in the field of sound radio and access to the media. The words “in television broadcasting (for example the framework of their legal sys­ the allocation of frequencies). This distinction reflects the relative scar­ tems” were inserted in order to res­ city of available frequencies and the pect constitutional provisions which need for regulation in the latter field. may limit the extent to which a No express reference has been made Party can regulate access to the to the right of persons belonging to a media. national minority to seek funds for the establishment of media, as this Paragraph 2 right was considered self-evident. 58. This paragraph is modelled on the Paragraph 4 third sentence of Article 10, para­ graph 1, of the ECHR. 62. This paragraph emphasises the need for special measures with the dual 59. The licensing of sound radio and aim of facilitating access to the television broadcasting, and of cinema media for persons belonging to enterprises, should be non-discrimi- national minorities and promoting natoiy and be based on objective tolerance and cultural pluralism. criteria. The inclusion of these The expression “adequate measures” requirements, which are not was used for the reasons given in the expressly mentioned in the third commentary on Article 4, paragraph sentence of Article 10, paragraph 1, 2 (see paragraph 39), which uses the of the ECHR, was considered same words. The paragraph comple­ important for an instrument desi­ ments the undertaking laid down in gned to protect persons belonging to the last sentence of Article 9, para­ a national minority. graph 1. The measures envisaged by r

this paragraph could, for example, associated with the use of minority consist of funding for minority languages in relations between per­ broadcasting or for programme pro­ sons belonging to national minorities ductions dealing with minority and the administrative authorities, issues and/or offering a dialogue bet­ this provision has been worded very ween groups, or of encouraging, flexibly, leaving Parties a wide mea­ subject to editorial independence, sure of discretion. editors and broadcasters to allow national minorities access to their 65. Once the two conditions in paragraph media. 2 are met, Parties shall endeavour to ensure the use of a minority language Article 10 in relations with the administrative Paragraph 1 authorities as far as possible. The existence of a "real need” is to be 63. The recognition of the right of every assessed by the State on the basis of person belonging to a national mino­ objective criteria. Although contrac­ rity to use his or her minority lan­ ting States should make every effort to guage freely and without interference apply this principle, the wording "as is particularly important. The use of far as possible” indicates that the minority language represents various factors, in particular the one of the principal means by which financial resources of the Party such persons can assert and preser­ concerned, may be taken into consi­ ve their identity. It also enables them deration. to exercise their freedom of expres­ sion. “In public” means, for instance, 66. The Parties' obligations regarding in a public place, outside, or in the the use of minority languages do not presence of other persons but is not in any way affect the status of the concerned in any circumstances official language or languages of the with relations with public authori­ country concerned. Moreover, the ties, the subject of paragraph 2 of framework Convention deliberately this article. refrains from defining ‘areas inhabi­ ted by persons belonging to national Paragraph 2 minorities traditionally or m sub­ 64. This provision does not cover all stantial numbers”. It was considered relations between individuals belon­ preferable to adopt a flexible form of ging to national minorities and wording which will allow each public authorities. It only extends to Party's particular circumstances to administrative authorities. be taken into account. The term Nevertheless, the latter must be "inhabited ... traditionally" does not broadly interpreted to include, for refer to historical minorities, but example, ombudsmen. In recogni­ only to those still living m the same tion of the possible financial, admi­ geographical area (see also Article nistrative, in particular in the milita­ 11, paragraph 3, and Article 14, ry field, and technical difficulties paragraph 2). Paragraph 3 guages. The expression “of a private nature" refers to all that is not offi­ 67. This paragraph is based on certain cial. provisions contained in Articles 5 and 6 of the European Convention Paragraph 3 on Human Rights. It does not go beyond the safeguards contained in 70. This article aims to promote the pos­ those articles. sibility of having local names, street names and other topographical indi­ Article 11 cations intended for the public also in the minority language. In imple­ Paragraph 1 menting this principle the States are entitled to take due account of the 68. In view of the practical implications of specific circumstances and the fra­ this obligation, the provision is wor­ mework of their legal systems, inclu­ ded in such a way as to enable Parties to apply it in the light of their ding, where appropriate, agree­ own particular circumstances. For ments with other States. In the field example, Parties may use the alphabet covered by this provision, it is of their official language to write the understood that the Parties are name(s) of a person belonging to a under no obligation to conclude national minority in its phonetic agreements with other States. form. Persons who have been forced Conversely, the possibility of to give up their original name(s), or concluding such agreements is not whose name(s) has (have) been ruled out. It is also understood that i changed by force, should be entitled to the legally binding nature of existing ! revert to it (them), subject of course to agreements remains unaffected. This exceptions in the case of abuse of provision does not imply any official rights and changes of name(s) for recognition of local names in the fraudulent purposes. It is unders­ minority languages. tood that the legal systems of the Parties will, in this respect, meet Article 12 international principles concerning the protection of national minorities. 71. This article seeks to promote know­ ledge of the culture, history, language Paragraph 2 and religion of both national minori­ ties and the majority population in 69. The obligation in this paragraph an intercultural perspective (see concerns an individual’s right to dis­ Article 6, paragraph 1). The aim is play “in his or her minority language to create a climate of tolerance and signs, inscriptions and other infor­ dialogue, as referred to in the mation of a private nature visible to preamble to the framework conven­ the public.” This does not, of course, tion and in Appendix II of the exclude persons belonging to natio­ Vienna Declaration of the Heads of nal minorities from being required State and Government. The list in to use, in addition, the official lan­ the second paragraph is not exhaus­ guage and/or other minority lan­ tive whilst the words “access to text- books” are understood as including the publication of textbooks and Paragraph 1 their purchase in other countries. The obligation to promote equal 74. The obligation to recognise the right opportunities for access to education of every person belonging to a natio­ at all levels for persons belonging to nal minority to learn his or her national minorities reflects a minority language concerns one of concern expressed in the Vienna the principal means by which such Declaration. individuals can assert and preserve their identity. There can be no Article 13 exceptions to this. Without prejudi­ ce to the principles mentioned in Paragraph 1 paragraph 2, this paragraph does not imply positive action, notably of a 72. The Parties’ obligation to recognise financial nature, on the part of the the right of persons belonging to State. national minorities to set up and manage their own private educatio­ Paragraph 2 nal and training establishments is 75. This provision concerns teaching of subject to the requirements of their and instruction in a minority langua­ educational system, particularly the ge. In recognition of the possible regulations relating to compulsory financial, administrative and techni­ schooling. The establishments cove­ cal difficulties associated with ins­ red by this paragraph may be sub­ truction of or in minority languages, ject to the same forms of supervision this provision has been worded veiy as other establishments, particularly flexibly, leaving Parties a wide mea­ with regard to teaching standards. sure of discretion. The obligation to Once the required standards are endeavour to ensure instruction of met, it is important that any qualifi­ or in minority languages is subject to cations awarded are officially reco­ several conditions; in particular, gnised. The relevant national legisla­ there must be “sufficient demand" from persons belonging to the rele­ tion must be based on objective vant national minorities. The wor­ criteria and conform to the principle ding “as far as possible” indicates of non-discrimination. that such instruction is dependent on the available resources of the Paragraph 2 Party concerned.

73. The exercise of the right referred to in 76. The text deliberately refrains from paragraph 1 does not entail any defining “sufficient demand," a financial obligation for the Party flexible form of wording which concerned, but neither does it exclu­ allows Parties to take account of de the possibility of such a contribu­ their countries’ own particular cir­ tion. cumstances. Parties have a choice of means and arrangements in ensuring belonging to national minorities in suck instruction, taking their parti­ cultural, social and economic life cular educational system into and in publrc affairs, in particular account. those affecting them. It aims above all to encourage real equality bet­ 77. The alternatives referred to in this ween persons belonging to national paragraph - “opportunities for being minorities and those forming part of taught the minority language or for the majority. In order to create the receiving instruction in this langua­ necessary conditions for such parti­ ge” — are not mutually exclusive. cipation by persons belonging to Even though Article 14, paragraph national minorities, Parties could 2, imposes no obligation upon States promote - in the framework of their constitutional systems - inter alia to do both, its wording does not pre­ the following measures: vent the States Parties from imple­ menting the teaching of the minority language as well as the instruction in • consultation with these persons, the minority language. Bilingual ins­ by means of appropriate proce­ truction may be one of the means of dures and, in particular, through achieving the objective of this provi­ their representative institutions, sion. The obligation arising from this when Parties are contemplating paragraph could be extended to pre­ legislation or administrative school education. measures likely to affect them directly; Paragraph 3 • involving these persons in the 78. The opportunities for being taught preparation, implementation the minority language or for recei­ and assessment of national and ving instruction in this language are regional development plans and without prejudice to the learning of programmes likely to affect the official language or the teaching in them directly; this language. Indeed, knowledge of the official language is a factor of • undertaking studies, in conjunc­ social cohesion and integration. tion with these persons, to assess the possible impact on them of 79. It is for States where there is more projected development activi­ than one official language to settle ties; the particular questions which the implementation of this provision • effective participation of persons shall entail. belonging to national minorities in the decision-making processes Article 15 and elected bodies both at natio­ nal and local levels; 80. This article requires Parties to create the conditions necessary for the • decentralised or local forms of effective participation of persons government. sions on freedom of assembly and of association in Article 7). 81. The purpose of this article is to protect against measures which change the 84. The provisions of this article are lar­ proportion of the population in areas gely based on paragraphs 32.4 and inhabited by persons belonging to 32.6 of the Copenhagen Document national minorities and are aimed at of the CSCE. It was considered restricting the rights and freedoms unnecessary to include an explicit which flow from the present frame­ provision on the right to establish work Convention. Examples of such and maintain contacts withm the measures might be expropriation, territory of a State, since this was evictions and expulsions or redra­ felt to be adequately covered by wing administrative borders with a other provisions of the framework view to restricting the enjoyment of Convention, notably Article 7 as such rights and freedoms (“gerry­ regards freedom of assembly and of mandering”) . association.

82. The article prohibits only measures Article 18 which are aimed at restricting the rights and freedoms flowing from 85. This article encourages the Parties the framework Convention. It was to conclude, in addition to the exis­ considered impossible to extend the ting international instruments, and prohibition to measures having the where the specific circumstances effect of restricting such rights and justify it, bilateral and multilateral freedoms, since such measures may agreements for the protection of sometimes be entirely justified and national minorities. It also stimulates legitimate. One example might be transfrontier cooperation. As is resettlement of inhabitants of a villa­ emphasised in the Vienna ge in order to build a dam. Declaration and its Appendix II, such agreements and cooperation Article 17 are important for the promotion of tolerance, prosperity, stability and 83. This article contains two underta­ peace. kings important to the maintenance and development of the culture of Paragraph 1 persons belonging to a national minorily and to the preservation of 86. Bilateral and multilateral agree­ their identity (see also Article 5, ments as envisaged by this paragra­ paragraph 1). The first paragraph ph might, for instance, be concluded deals with the right to establish and in the fields of culture, education maintain free and peaceful contacts and information. across frontiers, whereas the second paragraph protects the right to par­ Paragraph 2 ticipate in the activities of non­ governmental organizations (see 87. This paragraph points out the also in this connection, the provi­ importance of transfrontier coopera­ tion. Exchange of information and respect the rights of others. In this experience between States is an regard, reference may be made to important tool for the promotion of situations where persons belonging mutual understanding and confiden­ to national minorities are in a minori­ ce. In particular, transfrontier ty nationally but form a majority cooperation has the advantage that within one area of the State. it allows for arrangements specifical­ ly tailored to the wishes and needs of Article 21 the persons concerned. 90. This provision stresses the impor­ Article 19 tance of the fundamental principles of international law and specifies 88. This article provides for the possibility that the protection of persons belon­ of limitations, restrictions or deroga­ ging to national minorities must be tions. When the undertakings inclu­ in accordance with these principles. ded in this framework Convention have an equivalent in other interna­ Article 22 tional legal instruments, in particu­ lar the ECHR, only the limitations, 91. This provision, which is based on restrictions or derogations provided Article 60 of the ECHR, sets out a for in those instruments are allowed. well-known principle. The aim is to When the undertakings set forth in ensure that persons belonging to this framework Convention have no national minorities benefit from whi­ equivalent in other international chever of the relevant national or legal instruments, the only limita­ international human rights legisla­ tions, restrictions or derogations tion is most favourable to them. allowed are those which, included in Article 23 other legal instruments (such as the ECHR) in respect of different 92. This provision deals with the rela­ undertakings, are relevant. tionship between the framework Convention and the Convention for the Protection of Human Rights and Section H I Fundamental Freedoms, reference to which is included in the Article 20 Preamble. Under no circumstances can the framework Convention 89. Persons belonging to national mino­ modify the rights and freedoms safe­ rities are required to respect the guarded in the Convention for the national constitution and other Protection of Human Rights and national legislation. However, this Fundamental Freedoms. On the reference to national legislation contrary, rights and freedoms ensh­ clearly does not entitle Parties to rined in the framework Convention ignore the provisions of the frame­ which are the subject of a corres­ work Convention. Persons belon­ ponding provision in the ging to national minorities must also Convention for the Protection of Human Rights and Fundamental provides for the setting up of an Freedoms must be interpreted in advisory committee. The task of this accordance with the latter. advisory committee is to assist the Committee of Ministers when it eva­ luates the adequacy of the measures Section IV taken by a Party to give effect to the principles set out in the framework Articles 2-4-26 Convention.

93. To provide for overseeing the appli­ 96. It is up to the Committee of cation of the framework Ministers to determine, within one Convention, the Committee of year of the entry into force of the Ministers is entrusted with the task framework Convention, the compo­ of monitoring the implementation by sition and the procedures of the the Contracting Parties. The advisory committee, the members of Committee of Ministers shall deter­ which shall have recognised experti­ mine the modalities for the partici­ se in the field of the protection of pation m the implementation mecha­ national minorities. nism by the Parties which are not members of the Council of Europe. 97. The monitoring of the implementa­ tion of this framework Convention 94. Each Party shall transmit to the shall, in so far as possible, be trans­ Secretary-General on a periodical parent. In this regard it would be basis and whenever the Committee advisable to envisage the publication of Ministers so requests information of of the reports and other texts resul­ relevance to the implementation of ting from such monitoring. this framework Convention. The Secretary-General shall transmit this rnformation to the Committee of Section V Ministers. However, the first report, the aim of which is to provide full 98. The final provisions contained in rnformation on legislative and other articles 27 to 32 are based on the measures which the Party has taken to model final clauses for conventions give effect to the undertakings set and agreements concluded within out rn the framework Convention, the Council of Europe. No article on must be submitted within one year reservations was included; reserva­ of the entry into force of the frame­ tions are allowed in as far as they are work Conventron in respect of the permitted by international law. Party concerned. The purpose of the Apart from Articles 27 and 29 the subsequent reports shall be to com­ articles in this section require no plement the information included in particular comment. the first report. Articles 27 and 29 95. In order to ensure the efficiency of the monitoring of the implementa­ 99. The framework Convention is open tion of the framework Convention, it for signature by the Council of Europe’s member States and, at the invitation of the Committee of Ministers, by other States. It is understood that "other States” are those States which participate in the Conference on Security and Cooperation in Europe. These pro­ visions take account of the Vienna Declaration, according to which the framework Convention should also be open for signature by non-mem­ ber States (see Appendix II to the Vienna Declaration of the Council of Europe Summit). Council of Europe Additional Protocol to the European Social Charter Providing for a System of Collective Complaints

Pream ble b) other international non-govern­ mental organizations which The member States of the Council of have consultative status with the Europe, signatories to this Protocol to Council of Europe and have the European Social Charter opened for been put on a list established for signature in Turin on 18 October 1961 this purpose by the (hereinafter referred to as “the Governmental Committee; Charter”), c) representative national organi­ Resolved to take new measures to zations of employers and trade unions within the jurisdiction of improve the effective enforcement of the the Contracting Party against social rights guaranteed by the Charter; which they have lodged a com­ plaint. Considering that this aim could be achieved in particular by the establish­ Article 2 ment of a collective complaints procedu­ re, which, inter alia, would strengthen 1. Any contracting State may also, the participation of management and when it expresses its consent to be labour and of non-governmental organi­ bound by this Protocol in accordance zations, with the provisions of Article 13, or at any moment thereafter, declare that it recognises the right of any other Have agreed as follows: representative national non-govern­ mental organization within its juris­ Article 1 diction, which has particular compe­ tence m the matters governed by the The Contracting Parties to this Charter, to lodge complaints against it. Protocol recognise the right of the follo­ wing organizations to submit complaints 2. Such declarations may be made for a alleging unsatisfactory application of the specific period. Charter: 3. The declarations shall be deposited a) international organizations of with the Secretary-General of the employers and trade unions Council of Europe who shall trans­ referred to in paragraph 2 of mit copies thereof to the Contracting Article 27 of the Charter; Parties and publish them. Independent Experts shall notify the Contracting Parties to the Charter The international non-governmental through the Secretary-General. It organizations and the national non­ shall request the Contracting Party governmental organizations referred to concerned and the organization in Article 1 b and Article 2 respectively which lodged the complaint to sub­ may submit complaints m accordance mit, within such time-limit as it shall with the procedure prescribed by the prescribe, all relevant written expla­ aforesaid provisions only in respect of nations or information, and the those matters regarding which they have other Contracting Parties to this been recognised as having particular Protocol, the comments they wish to competence. submit, within the same time-limit.

Article 4 2. If the complaint has been lodged by a national organization of employers The complaint shall be lodged in wri­ or a national trade union or by ano­ ting, relate to a provision of the Charter ther national or international non­ accepted by the Contracting Party governmental organization, the concerned and indicate m what respect Committee of Independent Experts the latter has not ensured the satisfactory shall notify the international organi­ application of this provision. zations of employers or trade unions Article 5 referred to in paragraph 2 of Article 27 of the Charter, through the Any complaint shall be addressed to Secretary-General, and invite them the Secretary-General who shall ack­ to submit observations within such nowledge receipt of it, notify it to the time-limit as it shall prescribe. Contracting Party concerned and imme­ diately transmit it to the Committee of 3. On the basis of the explanations, Independent Experts. information or observations submit­ ted under paragraphs 1 and 2 above, Article 6 the Contracting Party concerned and the organizations which lodged The Committee of Independent the complaint may submit any addi­ Experts may request the Contracting Party concerned and the organization tional written information or obser­ which lodged the complaint to submit vations within such time limit as the written information and observations on Committee of Independent Experts the admissibility of the complaint within shall prescribe. such time-limit as it shall prescribe. 4. In the course of the examination of Article 7 the complaint, the Committee of Independent Experts may organize 1. If it decides that a complaint is a hearing with the representatives of admissible, the Committee of the parties. 2. At the request of the Contracting Party concerned, the Committee of 1. Tlie Gommittee of Independent Ministers may decide, where the Experts shall draw up a report in report of the Committee of which it shall describe the steps Independent Experts raises new taken by it to examine the complaint issues, by a two-thirds majority of and present its conclusions ‘as to the Contracting Parties to the whether or not the Contracting Charter, to consult the Party concerned has ensured the Governmental Committee. satisfactory application of the provi­ sion of the Charter referred to in the Article 10 complaint. >■ The Contracting Party concerned 2. The report shall be transmitted to shall provide information on the mea­ the Committee of Ministers. It shall sures it has taken to give effect to the also be transmitted to the organiza­ Committee of Ministers recommenda­ tion that lodged the complaint and tion, in the next report which it submits to to the Contracting Parties to the the Secretary-General under Article 21 Charter, which shall not be at liberty of the Charter. to publish it. Article 11 It shall be transmitted to the Parliamentary Assembly and be Articles 1 to 10 of this Protocol shall made public at the same time as the apply also to the articles of Part II of the resolution referred to in Article 9 or no First Additional Protocol to the Charter in respect of the States Parties to that later than four months after it has Protocol, to the extent that these articles been transmitted to the Committee have been accepted. of Ministers.

Article 12 Article 9 The States Parties to this Protocol 1. On the basis of the report of the consider that the appendix to the Committee of Independent Experts, Charter relating to Part III reads as fol­ the Committee of Ministers shall lows: adopt a resolution by a majority of those voting. If the Committee of “It is understood that the Independent Experts finds that the Charter contains legal obliga­ Charter has not been applied in a tions of an international cha­ satisfactory manner, the Committee racter, the applrcation of which of Ministers shall adopt, by a majo­ is submitted solely to the rity of two-thirds of those voting, a supervision provided for in recommendation addressed to the Part IV thereof and in the pro­ Contracting Parties to the Charter. visions of this Protocol.” first day of the month following the expiration of a period of one month 1. This Protocol shall be open for after the date of the deposit of the signature by member States of the instrument of ratification, acceptan­ Council of Europe signatories to the ce or approval. Charter, which may express their consent to be bound by: Article 15 a) signature without reservation as 1. Any Party may at any time denounce to ratification, acceptance or this Protocol by means of a notifica­ approval; or tion addressed to the Secretary- General of the Council of Europe. b) signature subject to ratification, acceptance or approval, follo­ 2. Such denunciation shall become wed by ratification, acceptance effective on the first day of the or approval. month following the expiration of a period of twelve months after the 2. A member State of the Council of date of receipt of such notification Europe may not express its consent by the Secretary-General. to be bound by this Protocol without simultaneously or previously rati­ fying the Charter. Article 16

3. Instruments of ratification, accep­ The Secretary-General of the tance or approval shall be deposited Council of Europe shall notify all the with the Secretary-General of the member States of the Council of: Council of Europe. a) any signature;

Article 14 b) the deposit of any instrument of ratification, acceptance or 1. This Protocol shall enter into force approval; on the first day of the month follo­ wing the expiration of a period of one month after the date on which c) the date of entry into force of five member States of the Council of this Protocol in accordance with Europe have expressed their Article 14; consent to be bound by the Protocol m accordance with the provisions of d) any other act, notification or Article 12. declaration relating to this Protocol. 2. In respect of any member State which subsequently expressed its In witness whereof the undersigned, consent to be bound by it, the being duly authorised thereto, have Protocol shall enter into force on the signed this Protocol. Done at Strasbourg, the 9 November 1994, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary- General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe. World Summit for Social Development Copenhagen 6-12 March 1995 E valuation

by the International. Commudion of Juridtd 14 March 1995

The International Commission of participatory development process Jurists (ICJ) concluded today its eva­ should have incorporated openly the luation of the UN World Summit for participation of civil sociely and NGOs Social Development which took place in in the negotiations. The ICJ believes Copenhagen, between 6-12 March 1995. that no effective agenda for social deve­ lopment can emerge and succeed The ICJ is particularly pleased by without the participation of civil society the massive participation of human and NGOs. Therefore, in the follow-up rights and development non-govern­ process and subsequent UN work, active mental organizations (NGOs). Around input from civil society and NGOs 3000 international, regional, national should be sought from the beginning to and local NGOs from around the world the end. were represented in Copenhagen, hol­ ding activities relating to all aspects of human rights and development. An Positive trends NGO Forum, which began two days before the official inauguration of the Commenting on the Summits UN Summit, continued throughout the Declaration and Programme of Action duration of the Summit. (hereafter: "the Final Declaration”), the ICJ welcomes the reaffirmation of the The ICJ regrets that the NGO universality, indivisibility, interdepen­ Forum was situated a long way from the dence, and interrelation all human Bella Centre which housed the Summit. rights, including the right to develop­ Moreover, the ICJ is disappointed by ment. The ICJ and other human rights the fact that NGOs were discouraged groups had feared that this could prove from substantially participating in the to be a stumbling block, given that the Summit, and particularly in the govern­ principle came under attack from a certain mental drafting committees which took number of States. place in virtual governmental seclusion. The process was characterized by insuf­ The ICJ welcomes the fact that ficient transparency. Governments who signed the Declaration made "commitments” rather A Summit designed to draft a docu­ than the usual "principles” or "objec­ ment focusing on the importance of a tives.” The ICJ welcomes the inclusion in the fact that reference was made to the the Final Declaration of the need for ILO Conventions including those on encouraging ratification of existing forced and child labour, the freedom of international human rights conventions, association, the right to organize and and the full implementation of the provi­ bargain collectively, and the principle of sions of international instruments that non-discrimination. There is, however, have been ratified, in particular the no mention of a specific right to employ­ International Covenant on Economic, ment. Social and Cultural Rights (ICESCR) and the International Covenant on Civil Though falling short of mentioning and Political Rights (ICCPR). the existence of a specific right to educa­ tion, the need to provide universal edu­ The IC J welcomes the fact that gender cation is to be found throughout the issues are integrated throughout most of Final Declaration and it is recognized the Final Declaration. States have, for that education plays a vital role in alle­ example, committed themselves to inte­ viating poverty. grate gender concerns in the planning and implementation of policies and pro­ grammes for the empowerment of women. The IC J is pleased by the inclu­ Negative trends sion of references made to the specific The ICJ is disappointed that the rights of women and, in particular, to Final Declaration does not substantially CEDAW. strengthen human rights issues and does not propose new mechanisms for the The IC J welcomes the mentioning of implementation of human rights. The the rights of indigenous peoples and the IC J is particularly disappointed that the necessity of empowering them so that Final Declaration does not endorse the they may participate in the life of nations call of the 1993 Vienna Conference on whilst being able to retain their own Human Rights to study the creation of identities. an Optional Protocol under the ICES­ CR which would, in effect, give indivi­ The ICJ welcomes the fact that the duals and groups the right to complain Final Declaration calls for the imple­ against violations of their social rights mentation of the Plan of Action adopted before the UN Committee on Economic, by the World Summit for Children in Social and Cultural Rights. 1990 and the ratification and implemen­ tation of the Convention on the Rights The Final Declaration often fails to of the Child (1989). call upon States to translate their inter­ national obligations into domestic laws The ICJ is pleased by the fact that by incorporating the norms and stan­ strong language was adopted on dards contained in international human employment and that words such as rights law into their national laws and “promoted” or “it is important” have constitutions. There is an immediate been substituted by the more binding need for corresponding national, local, term of “require.” The ICJ welcomes and municipal laws so that international­ ly recognized human rights become The Final Declaration fails to establi­ enforceable in domestic courts of law, sh a regular monitoring of States’ com­ and a need for a much better knowledge pliance with their obligations. The ICJ of the provisions of international instru­ believes that such monitoring should be ments. carried out by the UN Committee on Economic, Social, and Cultural Rights Although the IC J is pleased that the because of its experience in examining words “human rights" are mentioned State reports under the Covenant. more than 40 times in the Final Declaration, it regrets the fact that the Conclusion document generally downgrades the essence of economic, social, civil, cultu­ The ICJ welcomes the positive out­ ral, and political rights by referring comes of the Copenhagen Summit and mostly to broad open ended terms such as human “basic needs, ” and fails to spe­ believes that the Final Declaration and cifically mention, for instance, the right Programme of Action is, generally, an to health, education, adequate housing, encouraging document. This public and food. Instead, it should have refer­ commitment should signal the beginning red to the legal obligations of States to of a new era heralding the promotion respect, protect, fulfil, and promote and protection of all human rights at the human rights existing in international national level, in conformity with inter­ instruments. national instruments, as well as achie­ ving sustainable development, through Further, the Final Declaration does pro-active international cooperation. not adequately address violations of human rights resulting from policies The task that lies ahead is to ensure imposed by the World Bank and the that the commitments made by the 185 International Monetary Fund. It fails to develop guidelines for assessing the countries represented at this Summit human rights impact of the policies, will be honoured and that adequate actions and omissions of the Bretton monitoring and funding of the process Woods institutions, and to establish will be ensured. Unfortunately, the Final appropriate mechanisms of accountabili­ Declaration made little mention of this ty necessity. A1 ember,! of the International Conunutdion of Juristtj

Acting President LENNART GROLL Judge, Stockholm Court of Appeal, Sweden

Vice President*) ENOCH DUMBUTSHENA Former Chief Justice of Zimbabwe TAI-YOUNG LEE Director, Korean Legal Aid Centre for Family Relations CLAIRE L’HEUREUX-DUBE Judge of the Supreme Court of Canada

M em berof Executive Committee MICHAEL D. KIRBY (Chairman) President, NSW Court of Appeal, Australia; Special Representative of the UN Secretary-General for Human Rights in Cambodia DALMO DE ABREU DALLARI Professor of Law, Sao Paulo, Brazil DESMOND FERNANDO Barrister, Sri Lanka; President, International Bar Association ASMA KHADER Advocate, Jordan KOFI KUMADO Senior Lecturer in Law, University of Ghana FALI S. NARIMAN Advocate; former Solicitor-General of India CHRISTIAN TOMUSCHAT Professor of International Law, University of Bonn, Germany; Member, UN International Law Commission

Commijdion Members MOHAMMED BEDJAOUI Judge; President International Court of Justice; Algeria ANTONIO CASSESE President, International Penal Tribunal on the former Yugoslavia; Professor of International Law, European University Institute; President, European Committee for Prevention of Torture; Italy ARTHUR CHASKALSON President, Constitutional Court of the Republic of South Africa SIR ROBIN COOKE, KBE Judge; President, Court of Appeal, New Zealand MARIE JOSE CRESPIN Member, Constitutional Council, Senegal DATO’ PARAM CUMARASWAMY Advocate; UN Special Rapporteur on the Independence of Judges, Jurors and Lawyers; former Chairman of Standing Committee on Human Rights, International Bar Association; Malaysia DIEGO GARCIA-SAYAN Executive Director, Andean Commission of Jurists, Peru SIR WILLIAM GOODHART, QC Banister at Law, United Kingdom RAJSOOMER LALLAH Substitute - Chief Justice of Mauritius; Member, UN Human Rights Committee EWALETOWSKA Professor, Institute of Legal Sciences, Polish Academy of Sciences; former Ombudsman; Poland GLADYS V. LI, QC Deputy High Court Judge, Hong Kong NIALL MACDERMOT, CBE, QC Former ICJ Secretary-General; former Minister of State for Planning and Land, United Kingdom DANIEL HENRI MARCHAND Professor of Social Law, France J.R.W.S. MAWALLA Advocate of High Court, Tanzania FLORENCE N. MUMBA Investigator-General, Zambia DORAB PATEL Former Supreme Court Judge, Pakistan BERTRAND G. RAMCHARAN UN Coordinator, Regional Political & Security Cooperation; Adjunct Professor, Columbia University School of International Affairs (New York); Guyana HIPOLITO SOLARIYRIGOYEN Senator, Argentina; Chairman, Human Rights Committee of the Inter­ parliamentary Union LASZLO SOLYOM President, Constitutional Court of the Republic of Hungary DANIEL THURER Professor of International Law, Switzerland THEO C. VAN BOVEN Dean, Faculty of Law, University of Limburg, Netherlands; Member, UN Committee for Elimination of Racial Discrimination JOSE ZALAQUETT Advocate; Professor of Law, Chile

Honorary Members ANDRES AGUILAR MAWDSLEY, Venezuela JEAN FLAVIEN LALIVE, Switzerland ARTURO A. ALAFRIZ, Philippines RUDOLF MACHACEK, Austria DUDLEY B. BONSAL, United States of America NORMAN S. MARSH, United Kingdom WILLIAM J. BUTLER, United States of America KEBAMBAYE, Senegal HAIM H. COHN, Israel Sir SHRIDATH S. RAMPHAL, Guyana ALFREDO ETCHEBERRY, Chile JOAQUIN RUIZ-GIMENEZ, Spain P. TELFORD GEORGES, Bahamas Lord SHAWCROSS, United Kingdom JOHN P. HUMPHREY, Canada TUN MOHAMED SUFFIAN, Malaysia HANS-HEINRICH JESCHECK, Germany MICHAEL A. TRIANTAFYLLIDES, Cyprus PJ.G. KAPTEYN, Netherlands

Secretary - G eneral ADAMA DIENG Recent IC J Publications

Human Right.* in Kashmir Report of a Mukiion Published by the IC J in Engiidb. 210 pp. CHF: 17.- plud podtage.

This Report is the outcome of an IC J mission to Kashmir conducted in August 1993. It condemns India, Pakistan and local militant groups for abuses of human rights in the State of Jammu and Kashmir. It finds that Indian security forces committed serious human rights abuses and that a number of security- related laws relied upon by the authorities in the parts of the State under Indian control contravened international human rights standards. It also finds that there is an absence of constitutional rights in the parts of the State under the control of Pakistan and urges that countiy to prevent the supply of finance, weapons and training facilities to the militant groups in Kashmir. Finally, it finds that militant groups have also committed serious human rights abuses. The Mission was composed of Sir William Goodhart Q.C. (United Kingdom); Dr. Dalmo de Abreu Dallari (Brazil); Ms. Florence Butegwa (Uganda); and Prof. Vitit Muntarbhorn (Thailand). They met government representatives in both India and Pakistan and visited parts of the State under Indian and Pakistani control. The Report contains several annexes. In one, the members of the Mission express their opinion on the right to self-determination of the peoples of Kashmir. The Report draws attention to the highly controversial nature of the right to self-determination. It contains the responses of the Governments of India and Pakistan.

Position Paper for the World Summit for Social Development

Published by the ICJ in English. 21 pp. CHF 5.- plud podtage.

The ICJ published this position paper for the World Summit for Social Development which was held in Copenhagen between 6-12 March 1995. The ICJ's stance is that it was of the utmost importance to refer, in the Declaration and Programme of Action of the Summit, to the already existing State obliga­ tions in the field of social, economic and cultural development. The position paper states that the Social Summit should focus on the concrete implementa­ tion of these norms.

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Printed in France ISSN 0020-6393