W Sf£R For the Rule o f Law

THE REVIEW

international commission o f ju r is t s

HUMAN RIGHTS IN THE WORLD Argentina 1 Sri Lanka 20 Indonesia 6 Tanzania 26 Lebanon 9 Uruguay 29 South Africa 16

COMMENTARIES ILO Studies on Discrimination in Employment 35 UN Sub-Commission 37 Human Rights Committee 42 European Draft Convention Against Torture 50

ARTICLES The Universal Declaration at 35 Philip Alston 60 Human Rights and the Peace of Nations John P. Humphrey 71 Restructuring Democracy in Turkey Bulent Tanor 75

BASIC TEXT Principles of Medical Ethics 87

No. 31 December 1983 Editor: Niall MacDermot Human Rights in the World

Argentina

October 30 1983 will be remembered basic human rights and fundamental free­ for ever in Argentine history as the date doms, and the destruction of democratic that heralded the start of the return to a principles and their replacement by others democratic way of life after nearly eight of a repressive and authoritarian nature. years of military government. On that day, The dictatorship’s so-called “military pro­ presidential and legislative elections were cess of national reconstruction” aroused held in Argentina, and took place in a tran­ violent emotions by adopting a “dirty war” quil and orderly atmosphere. A very high strategy, first against subversive groups and percentage of the electorate - apart from later against all opposition, whether legal the tens of thousands of exiles who were or illegal. It was a political repression that unable to vote - went to the polls and cast knew no limits and that constituted a veri­ their vote unmistakably for democracy. table State-sponsored terrorism practised The Radical Party won by a wide margin by the armed forces and police acting both with 52% of the votes cast, followed by the officially and as paramilitary extremist Partido Justicialista (the Peronists) with bands, organized and managed from the 40%. summit of political power. In short, the The military junta, which, on 26 Marchmilitary government in Argentina failed to 1976, had removed from office a legiti­ assume its responsibilities under both na­ mately elected civilian government and tional and international law to protect the proclaimed itself the supreme governing inhabitants of the country and ensure their body of the State, must now give way to a enjoyment of their rights. The elaborate civilian government. legal system for the protection of human Those eight years of military govern­ rights ceased to function in relation to ment have, however, left a tremendous violations by the armed forces and police debit balance: thousands of dead, hundreds in connection with State security (as the of political prisoners, a list of “disappear­ military understand this concept). ed” persons which the most conservative The military regime was an utter failure estimates place at 15,000*, tens — perhaps in every field, in human rights as well as in hundreds — of thousands of exiles, the de­ economic matters. Military control was ex­ nial and systematic violation of the most tended over the life of the nation in order

* There are documented lists showing the circumstances of arrest or kidnapping of some 7,000 of the disappeared. The human rights organisations in Argentina which have investigated the disappearances are convinced that these lists represent less than half of the total number of disappeared. to introduce a particular social, political to democracy and the achievement of na­ and economic model, which met with resis­ tional reconciliation and social peace. tance from the people. To impose that pol­ icy, the military had to close Parliament, ban the activities of political parties and Defence of Democracy Law trade unions, censor the press, restructure education along dogmatic lines, and alter This law, dated 26 September 1983, is the institutional system through which theknown as the law on the defence of democ­ State functioned. The result of the “model” racy or repression of terrorism. Although it was the worst crisis in the history of a gave the ordinary courts of justice jurisdic­ country that had the potential to be one of tion over cases of terrorism — since the the richest in South America. Paralysis and 1976 coup they have been tried by military closure of industrial and business compa­ courts — many of its aspects are open to nies was followed by unemployment of criticism. It was not of course approved by more than 20%, and wages that are totally the Parliament, which was dissolved after inadequate for those who have managed to the military coup d’etat, nor was its adop­ keep their jobs. The inflation rate is already tion preceded by a debate in which the 600% this year, the external debt is 40,000 opinions of lawyers, judges and others were million dollars and these are accompanied expressed and exchanged. The law estab­ by financial scandals and widespread cor­ lishes a procedure for pre-trial judicial in­ ruption in the higher civilian and military vestigation, and confers unduly wide pow­ spheres. ers on the security forces and police, who The failure of the regime in its own mili­ are authorized to enter and search houses tary sphere by losing the war with the at any hour of the day or night, and to United Kingdom for the possession of the search and detain people, all without a pre­ Falkland Islands (Malvinas) is also impor­ viously issued judicial warrant, the only re­ tant in order to understand the call for quirement being that the agents concerned elections and a return to democratic life. should notify the judge involved in the case All these factors, to which must be ad­ after the investigation has been completed. ded the unceasing resistance of many sec­ They may also intercept written and tele­ tors of society, such as human rights orga­graphic communications and listen in to nisations, the families of missing persons, telephone conversations. Moreover, they the trade unions and the political parties, can hold people in custody for 48 hours gradually forced the military junta to call without bringing them before a judge and, elections at the end of October with the in­ with the consent of the judge, extend the tention of handing over power in January period during which they are held incom­ 1984 to the civilian government elected by municado to as much as 15 days. Lastly, the people. The date has now been ad­ there is no possibility of appeal from the vanced and the new government is due to decision of the court in these cases. take office on 10 December 1983. There can be no doubt that the task confronting the new government is enor­ The ‘Self-Amnesty’ Law mous. Shortly before the elections, two new laws were approved by the military Law No. 22,924 has much more serious government. These laws will be a further implications than the defence of democra­ obstacle on the already difficult road back cy law and has given rise to a tremendous wave of protest. It was approved on 23 Sep­ sing persons. tember 1983 and is entitled the “Amnesty The problem of the disappeared is one Law”. Under its provisions the military, of the most serious consequences of the apart from pardoning certain crimes com­ military dictatorship. As already indicated, mitted with a political motive or purpose, it appears that more than 15,000 persons use the amnesty mainly to exonerate them­disappeared in Argentina in the last few selves from blame for all the violations of years. They were, in nearly every case, po­ human rights committed during the period litical opponents of the government, critics between 25 May 1973 and 17 June 1982. of its actions, or had simply denounced This law was preceded by the “Final violations of human rights. Of the docu­ Document of the Military Junta on the War mented cases, 80% were arrested by mem­ against Subversion and Terrorism”, pub­ bers of the armed forces or the police, lished on 28 April 1983, and rejected open­ sometimes in the presence of numerous ly and clearly, at both the national and in­ witnesses, at their homes, places of work or ternational levels (within the country by study, or on the street. The families of the the main Argentine human rights organisa­ persons who vanished in this way then suf­ tions, by the families of the persons who fered the anguish of searching for informa­ have disappeared, by the political parties tion about them, approaching all the offi­ and groups, by the trade unions and by the cial institutions, exhausting every possibili­ Argentine Episcopal Conference). This doc­ ty offered to them by national law, and ument, like the Institutional Act by which even appealing for international action, it was approved, after recognising and un­ without, in the vast majority of cases, equivocally admitting that the actions and learning anything as to the whereabouts operations undertaken against subversive and fate of their loved ones. As far as the organisations and against individuals were military junta is concerned, these missing invariably undertaken by military and pol­ persons are to be considered dead and their ice forces of the State, in accordance with families and friends who have searched for plans drawn up by the commando units of them for years will never know - if indeed the armed forces and by the military junta they did die - who killed them, where, itself, concludes that “the excesses” com­ when and for what reason. mitted which “at times overstepped the Among the presumed deaths are those limits of human rights” were justified by of more than a hundred children who were the nature of the struggle, and that these arrested with their parents or who were “excesses” may not be investigated by hu­born while their mothers were held in cap­ man justice but must be left to the judg­ tivity. The admirable campaign undertaken ment of history and of God. by the associations of mothers and grand­ These “excesses” include the murder of mothers of the Plaza de Mayo have led to opponents, including political prisoners, the discovery of 11 missing children who torture and ill-treatment and disappear­ were still alive. It is essential to find out ances. The central purpose of the docu­ who handed these children over to other ment is to put a stop to all inquiries into families, what happened to their parents, these questions, to prevent members of the and what was the fate of the remaining State security services from being held li­ children. able for crimes committed in the so-called Law No. 22,924, the so-called “Amnesty struggle against subversion, and to establish Law”, was approved by the President of a presumption of death in the case of mis­ the Nation, Lieutenant-General Reynaldo Bignone, acting in the absence of Parlia­ punishment which may be decreed ment, under the powers conferred by the by the Executive Power if it is deem­ Statute of the National Reorganisation Pro­ ed expedient, in the exercise of its cess, a military document which in 1976 powers under article 86, para. 6 of redistributed the powers of the State. The the National Constitution; and text of the law was discussed solely within d) the authors, etc., of common crimes the military sphere. As noted above, as of economic subversion under law soon as its main lines were known, they No. 20,840. evoked a vast wave of protest, both nation­ al and international. Argentine political 2. the benefits of the amnesty are likewise and social forces rejected it energetically extended to the authors, participants, and there were no voices raised in its sup­ instigators, accomplices and accessories port. after the fact in the case of crimes com­ The law purports to extend the benefits mitted “upon the occasion or with the of amnesty to: purpose of preventing, averting or termi­ nating terrorist or subversive activities, 1. the authors, participants, instigators, ac­ whatever may have been their nature or complices or accessories after the fact in the legal rights violated”. This self-am- the case of crimes committed with the nesty is intended to shield those respon­ motive or purpose of terrorism or sub­ sible for violations of the right to life version, as well as related common (homicide). crimes and military crimes. In all cases, the amnesty applies to Excluded from the amnesty are a large crimes committed between 25 May 1973 number of people: and 17 June 1982. In order to comply fully with the pur­ a) members of illegal terrorist or subver­ pose of exonerating the agents of the au­ sive organisations who, on 17 June thorities from all responsibility, articles 5, 1982, were not residing legally in the 7 to 12, and 14 of the law carefully estab­ country; lish procedures for doing so. It is interest­ b) those who “by their conduct have ing to note that no judicial inquiries may demonstrated their intention of con­ be made into the acts covered by the am­ tinuing to be linked with such asso­ nesty. Judges, whether civilian or military, ciations”. “shall reject without any substantiation” charges that are brought, for example, of­ The exceptions given in (a) and (b) mean fering evidence as to the liability of the mi­ that, if the law is valid, a large proportion litary or the police in the disappearance or of the exiles (i.e. the class of persons most death of a prisoner or opponent. A wall of likely to benefit from an amnesty law) will silence has been erected to .protect the be unable to return to their country. violators of human rights, a wall that will not be broken down even in the event — c) those condemned for the crimes men­ already a frequent occurrence in Argentina tioned and who have been given a fi­ — that a person formerly missing provides nal sentence. In these cases, the law proof that he or she was held secretly in an establishes that they may benefit official place, together with other persons from pardon or commutation of the who are still missing. Furthermore, cases that were being heard in a particular court into the extremely serious crimes commit­ and that made accusations against a govern­ ted over many years against life and integri­ ment agent for perpetrating a crime, which ty of the human person by officials - mili­ was under investigation, will be filed away. tary and police — endowed with formal A good example of this is the case brought authority to act, and who did so in their against Admiral Emilio Massera, a former official capacity, as is evident from the member of the military junta and one of Final Document of the military junta. The those responsible for the coup d’etat, in result of the application of the law so far connection with the disappearance of two has been the release of 200 political prison­ persons. Although the case was accepted ers (there are some 300 still in prison) and by a federal judge, it will be filed away and the placing of a large number of exiles in the Admiral will benefit from the amnesty. danger of arrest and trial if they attempt to Lately, Argentine lawyers, showing re­ return. markable courage, have started legal pro­ During the campaign which preceded ceedings in which they have managed to the elections of October, the majority of establish the liability of certain government candidates and parties spoke out in favour agents in cases of disappearances. Now all of declaring invalid or repealing the “self­ these will be relegated to the archives by amnesty” law, once the National Parlia­ virtue of the “Amnesty Law”. ment has been reconstituted. The legal Lastly, article 6 announces that civil ac­ method of reversing the law should be care­ tions (for financial compensation) arising fully studied, since, depending on the one out of the crimes amnestied shall lapse. A chosen, the legal effects may be different. special law will determine a regime of com­ In Argentine law an amnesty extin­ pensation by the State. guishes the crime and, if a sentence has If the amnesty for crimes with a politi­ been passed, it ceases to have effect. It is, cal motive or purpose served to bring Ar­ in fact, a legal fiction whereby it is presum­ gentines together again, establish national ed that certain acts of a criminal nature harmony and social peace and offer one of never took place and hence, that no liabili­ the bases on which a democratic future ty can be attached to the perpetrators of could be securely constructed, it would un­ such acts or to those who were involved in doubtedly be a positive step. In the present them. Hence the importance of determin­ case, and with the text as it has now been ing whether the Amnesty Law was valid or conceived and worded, there is obviously a not. If it was valid, it may appear invidious danger that it will become a barrier across to seek to repeal it if it was to remove the the path to national peace and harmony, exoneration conferred by the amnesty and and jeopardise the aspirations of the gov­ to hold that a person who has been de­ ernment recently elected by the people for clared under a valid law not to have com­ national reconstruction without hatred or mitted a crime is nevertheless criminally bitterness. responsible. On the other hand, if the true There can be no doubt that the aim of position is that the Amnesty Law was not the military junta in passing this law was valid, and is declared either by the Parlia­ not so much to extinguish the penal pro­ ment or by the courts to have been voidab ceedings and sentences imposed for politi­ initio, no such problem arises. In this case cal crimes, with the consequent release of the offenders have never been validly am­ prisoners and the return of exiles, but to nestied and remain criminally liable for prevent any investigation from being made their acts and omissions. There are strong arguments for saying Finally, it would be desirable for the that the law was voidab initio. In the first new Argentine government, in deriving its place, the original seizure of power by the legitimacy and moral prestige from the will junta in 1976 was clearly unconstitutional of the people, to support the demands for and their assumption of legislative power truth and justice made by the families of was illegal. On the return to constitutional the victims and take steps to ensure that rule the courts are, therefore, entitled to the conduct of officials and their authoris­ refuse to apply the decree laws except ed agents is properly investigated, whatever where recognition of their validity is au­ their rank. Only then, and depending on thorised under the doctrine of necessity. the results obtained, would it be appro­ This was the position, for example, taken priate to begin to consider the question of by the Supreme Court of Pakistan in the an amnesty for officials and others who case of Malik Ghulam Jilani and Altaf have some criminal liability. It is impera­ Gauhar v. Province o f Sind and others in tive for the future of Argentina to protect April 1972 after a military government one of the essential concepts of the rule of which had seized power was replaced by a law, namely, the liability of servants of the constitutionally elected government. state and their agents, invested with certain Another cogent argument is that the powers, for the acts they commit, all the Amnesty Law was itself an abuse of power more so when, as in the present case, the in that it was an attempt by the military crimes committed are particularly heinous, junta to exonerate itself and its agents such as the murder of political opponents, from responsibility for their own crimes. imprisonment, abduction disappearances, It is noteworthy that two Argentine torture and cruel, inhuman or degrading examining magistrates, Judges Ledesma treatment. Crimes of this kind, committed and Edwin, have already refused to apply with the impunity of state power abusively the law in that it would compel them to exercised, arouse the conscience of man­ stop the inquiries they had instituted into kind and can be compared to the category the fate and whereabouts of two citizens of crimes known under international law as who disappeared after being arrested by a crimes against humanity. On the other group belonging to the armed forces. These hand, without loss of time, the new govern­ magistrates consider that, in view of the ment should announce a true amnesty for abominable and inhuman nature of the the victims of political persecution, free crimes it was proposed to amnesty, it would the prisoners and allow the exiles to return, be impossible for them to break off their so that they may all play their part in the investigations. In October 1983, both de­ process of national reconstruction. clared that they considered the law invalid.

Indonesia

Since our last article on Indonesia (Re- taken place and President Suharto has been view No. 18, June 1977) the general elec- re-elected by the Supreme Consultative As- tion to the House of Representatives has sembly. m

The general election in May 1982 was are strongly represented in the highest law­ contested by the government sponsored making body of the country. This politi­ Golkar or Joint Secretariat of Functional cal role of the armed forces was further Groups, the Partai Persatuan Pembangunan strengthened by the enactment in October (PPP) or United Development Party and 1982 of the ‘Basic Defence Law’. This rec­ the Partai Demokrasi Indonesia (PDI) or ognises the 'dual function’ of the armed Indonesian Democratic Party. No other forces by stating that the armed forces are parties are permitted to function in Indo­ a component of the ‘defence force’ and at nesia. The Golkar party secured an overall the same time a component of the ‘social majority of seats in 25 provinces, with 246 force’. Thus the armed forces, who assum­ of the 364 seats. Interestingly the Golkar ed power after the 1965 coup, have estab­ party is not considered as a political party. lished a permanent place in the government. It is a federation of 260 trade, professional Besides the domination of the armed and regional organisations ranging from or­ forces in the government, the 1965 coup ganisations of civil servants and teachers, to has also left the legacy of the problem of village leaders and students. These organisa­ political prisoners and the existence of tions which were formed by the former KOPKAMTIB or the Operational Com­ President Sukarno were brought under the mand for the Restoration of Security and control of the New Order Government Order. established by President Suharto after the The number of political prisoners still 1965 attempted coup. Though the leader­ under detention is not clear. In 1979 the ship of Golkar is dominated by persons government announced that it was releasing from the armed forces, it provides the civil­ the political prisoners in a phased manner. ian basis for the military dominated regime In December 1979, a government spokes­ of President Suharto. The opposition par­ man announced the existence of only 166 ties alleged irregularities in the election, in political prisoners of whom 61 were con­ particular accusing the Golkar of using the sidered hard-core communists. These num­ government machinery and the armed bers were contradicted in a statement re­ forces for “influencing the electorate”. leased in December 1981, according to The other major political event, the re- which there were 249 ‘A’ category detainees election of President Suharto took place on or hard-core communists to be brought to March 10, 1983. He had already served trial and 36,648 persons still in detention three full five-year presidential terms com­ under category ‘B’ (i.e. those who are con­ mencing in 1968. He was re-elected un­ sidered dangerous although there is insuffi­ opposed for another five-year term by cient evidence to prosecute them). The the People’s Consultative Assembly. The great majority of the category B prisoners People’s Consultative Assembly consists of have since been released. The actual num­ 920 members of whom 460 members be­ ber now imprisoned is not known. A con­ long to the House of Representatives com­ servative estimate puts it as 300 to 400 per­ prising 364 elected and 96 appointed mem­ sons, most of them having been in deten­ bers. The rest of the 460 members of the tion for more than 18 years, but others People’s Consultative Assembly are ap­ claim that there are still some thousands of pointed from the regions and from ‘func­ detainees. tional groups’. A practice prevails that 75 The political prisoners who have been percent of the appointed members belong released continue to face restrictions on to the armed forces. Thus the armed forces their civil and political rights. According to an Election Commission announcement tion and criminality. Thus an organ with made in December 1981, 43,084 ex-politi­ unlimited powers is used for tackling day cal prisoners were debarred from voting in to day law enforcement problems. But no the elections. Restrictions on practising law has been passed to control or prevent their profession and employment in some the misuse of such wide powers. Regrettab­ private and public sectors continue. Some ly even the new Criminal Procedure Code of the former political prisoners are also re­ passed in December 1981, which provides quired to report regularly to the authori­ for minimum safeguards to detained or ar­ ties. Any citizens whose overseas activities rested persons, is not applicable to persons might, in the government view, endanger arrested for security reasons by the KOP­ national stability are prevented from travel­ KAMTIB. KOPKAMTIB was established ling abroad. According to an Immigration during a time of crisis in 1965, and it is Department official, approximately 12,000 submitted that if it is to continue under persons were denied permission to leave normal conditions, sufficient legal safe­ the country in 1981. guards should be provided to ensure that As already stated, the other legacy of its powers are not misused and to prevent the 1965 coup is the existence of KOP- it from becoming an extra-legal institution. KAMTIB which has become the main insti­ The dangers of the use of extra-legal meth­ tution for the maintenance of internal sec­ ods for dealing with ordinary law enforce­ urity. Presidential Decrees made after its ment was illustrated by recent methods re­ inception have enlarged its scope and pow­ sorted to for curbing the rising crime rate. ers. Presidential Decree No. 179 of Decem­ A practice has developed in Indonesia ber 1965 empowered it to ‘restore security, whereby, in an attempt to keep down the order and authority and integrity of the crime rate, suspected criminals are summa­ government through physical military and rily executed by the armed forces, many non-military operations’. Presidential De­ merely on the grounds that they are known cree No. 19 of March 1969 authorised it to to be former convicts. This campaign began ‘take part in securing the authority and in­ in 1982 in East Java where nearly 200 per­ tegrity of the government and its apparatus sons were shot in this way by security of­ from the central to the provincial adminis­ ficers. At the beginning of 1983 the prac­ tration’ and to ‘surmount... extreme and tice spread to other areas, including Jakarta subversive activities'. In effect KOPKAM- the capital. A report published in the Far TIB has powers to arrest and detain with­ Eastern Economic Review of 29 September out warrant, has access to all private and 1983 states that at least 1,400 alleged crim­ public premises, has powers to ban publica­ inals have been killed by the security forces. tions, and scrutinises and approves the A surprising and deplorable development is passport applications of persons wanting to the open support the security officers have travel abroad. It has even banned a report received from persons holding official posi­ of the People’s Consultative Assembly, the tions, including the Attorney-General, the highest national legislative body. By main­ Speaker of the Parliament and the Minister taining the existence of KOPKAMTIB the of Justice. The Minister of Justice, Mr. Ali government deals with the threat to nation­ Said, admitting that the killings could be al security without resorting to emergency the work of security forces, sought to jus­ regulations. KOPKAMTIB is not used only tify their action by saying that the lives of for the maintenance of national security. scores of criminals was insignificant com­ It also conducts campaigns against corrup­ pared to the possibility of many thousands of people falling victim to their criminal als contain guidelines which condone the deeds. use of physical and psychological torture in Following protests about the killings, certain circumstances during interrogation; the Indonesian authorities imposed a ban provide guidelines to prevent its exposure; in August 1983 on the publication of news condone the issuing of threats on the lives concerning the killing of criminals. Fears of persons undergoing interrogation to en­ are already being expressed that similar sure their cooperation; and prescribe a poli­ methods could in future be resorted to for cy of transporting Fretilin supporters and eliminating political opponents. the families of Fretilin members to ‘deter­ Another allegation made against the In­ mined places’ including the island of Atauro. donesian government is its violation of hu­ Most of the people detained in this is­ man rights in East Timor, occupied by its land are said to be old people, women and troops since December 1975. Reports that children who are related to Fretilin mem­ come from East Timor indicate that the bers and are held as hostages. The Interna­ armed forces in order to suppress the resis­ tional Committee of the Red Cross (ICRC) tance organisation Fretilin, resort to arbi­ which is involved in a relief programme in trary killings, torture and arbitrary arrests. the island states that about 4,000 people Cases of disappearances of arrested persons are held in the island. are alleged to be common. A disturbing In October the ICRC announced that it fact was that these violations by the armed is suspending its activities on the main is­ forces are officially condoned. This was land of East Timor following the refusal of confirmed when Amnesty International the Indonesian authorities to grant ICRC made public manuals issued in July-Sep- delegates access to all villages requiring as­ tember 1982 by the then Indonesian Com­ sistance. Such a refusal by the Indonesian mander for East Timor and his intelligence authorities reinforces the fears that the hu­ chief to military personnel serving in the man rights situation in East Timor has de­ Baucau district of East Timor. These manu­ teriorated in recent months.

Lebanon

An unusually impartial study on the Le­of each of the three protagonists, the Sy­ banon was published in August 1983 by rians, the Israelis and the Lebanese, in the the Advisory Committee on Human Rights areas they respectively control. It ends in Lebanon (a project of the Middle East with a set of conclusions and recommenda­ Programme of the American Friends Ser­ tions. vice Committee)1. After a useful resume of The following is a brief summary of the the background to the present troubles, the report, which deals with the situation as at study examines the role and comportment July 1983 and well before the armed con-

1) The full report is available from American Friends Service Committee, 1501 Cherry St., Philadel­ phia, PA 19102, USA. flict between the pro-Arafat PLO forces has been that the socio-economic cleavages and the Syrian-backed ‘dissident’ PLO, and in the country have reinforced certain reli­ before the agreement between Israel and gious divisions. the PLO for the release of some 4,000 PLO prisoners in Southern Lebanon in exchange for 6 Israeli prisoners of war. The Syrian-Controlled Area

Syrian troops were invited into the Le­ Background banon in 1976 by the Christian leaders to help the Maronite Christian forces in the Lebanon gained its independence in civil war. In 1976 their presence was legit­ 1943 after more than two decades of imised, with US approval and Israeli ac­ French mandate rule. Its population of quiescence, at an Arab summit as the major about 3.2 million citizens (plus one million component of an Arab Deterrent Force non-Lebanese, including almost 400,000 (ADF) officially charged with helping the Palestinians) is divided among 17 officially central government re-establish law and recognised religious groups and it is consid­ order, and to keep the peace between the ered a confessional democracy. That is, it warring factions. operates on the basis of a political system Syria dominates Northern Lebanon and which, by informal agreement, allocates the Bekaa Valley, has over the years sup­ positions in government to different reli­ ported different sides in the civil war, and gious groups proportional to their represen­ is widely believed to be motivated by its tation in the last official census (in 1932). long-term goal of making the Lebanon part While at the time of the 1932 census, Chris­ of ‘Greater Syria’. tians were in the majority, Lebanon today In autumn 1982, at an Arab summit, it almost certainly has a Muslim majority. Le­ was agreed that the mandate of the ADF banon’s system of government and political not be extended and Syria withdrawal be participation has not been modified to re­ negociated. flect this shift, nor has it proved receptive The status of Syrian forces in Lebanon to emergent political forces. This has caus­ is now ambiguous. They no longer possess ed internal tensions and frustration on the a regional sanction nor has the Lebanese part of underrepresented groups. It is an government repeated its original request to oversimplification to say the fighting has the Syrians to play a peace-keeping role in been along strictly sectarian lines or over the country. The Lebanese have not, how­ religious issues. In a sense, it is a war be­ ever, formally requested Syria to withdraw tween two different conceptions of Leba­ its forces from Lebanon. Whether or not it non, that of the National Movement, a co­ is proper to consider the Syrian forces an alition of progressive groups under the occupying army, the international law gov­ leadership of Druze leader, Walid Jumblatt, erning occupation is the minimum standard which has been calling for a redesign of the against which Syrian actions in Lebanon Lebanese political system, and that of the should be judged. Phalange Party, primarily Maronite Chris­ Central to the duties of an occupying tian, which supports the existing political power, as set out in article 27 of the Fourth order which ensures continuing Maronite Geneva Convention and article 43 of the dominance. Regulations attached to the Hague Conven­ A key source of tension over the years tion, are the obligations to ensure the proper protection of the civilian popula­ in the conflict and fuelling hostilities which tion under its control and to refrain from directly jeopardise civilians. Another factor making any changes in the existing law and which contributes to the insecurity of the administration of the occupied territory. Bekaa for civilian residents is the presence of armed Iranians and Libyans who entered Lebanon through Syria in order to oppose Safety of Civilians the Israeli invasion. In their zeal to impose conservative Islamic standards, they have, In all Syrian-occupied areas, Syrian sol­ for example, bombed liquor stores and mo­ diers lack discipline. Civilians stopped at vie theatres. Iranians have established many roadblocks are often subject to verbal checkpoints in the Bekaa and are thought abuse, harassment, intimidation and physi­ to be responsible for a number of kidnap­ cal harm. Cases of kidnapping and arbitrary pings. arrests have been documented and corrup­ tion is also common, with many reports of extortion. Detainees In addition, Syria is unable or unwilling to control violence on the part of the Little information is available on de­ zone’s various armed groups. As a result, tainees being held by different parties in civilians there remain vulnerable. the Northern regions. It is suspected that In the North, civilians are primarily Syria is holding an unspecified number of threatened by continuing fighting between people for political reasons within Syria anti-Syrian Lebanese Sunni Muslim forces and that some of these people may have (including members of the fundamentalist been held since 1977. In addition, Syrian Muslim Brotherhood) and Syrian-support­ soldiers have detained people in the course ed Lebanese Alawites. In predominently of patrols of the area. In the Bekaa Valley, Sunni Syria, the minority Alawite govern­ 11 Israelis are being held by Syrian and Pa­ ment of President Assad views the Muslim lestinian forces. Syria is also believed to be Brotherhood as a serious threat and there­ detaining an undetermined number of Le­ fore seeks to contain it in both Syria and banese, primarily Phalange militia men, Lebanon. By fighting what is essentially an under harsh conditions in Masnaa’ and internal Syrian conflict on Lebanese soil, Choura. Syria contributes to the hostilities in Northern Lebanon and impedes the exten­ sion of Lebanese central authority to the Law and Administration region. In the Bekaa Valley, one significant The most serious threat to Lebanese law source of danger to the civilian population and administration posed by Syrian actions is the conflict between Syrian-backed PLO is their urging, since May 1983, leading rebels and the loyalists of PLO chairman, Lebanese politicians who oppose the Leba- Yasser Arafat. As the occupying power, nese-Israeli withdrawal agreement to form Syria bears the responsibility for preserving a ‘presidency council’ and establish a sepa­ order and protecting people under its con­ rate governmental administration in all trol. Instead, as further North where it parts of Lebanon under Syrian control, backs the Alawites, in the Bekaa it is also thus forming a virtual provisional govern­ actively supporting and supplying one side ment challenging the legitimacy of Presi­ dent Gemayel's government. Such a move Safety of Civilians would add to pressure for the three-way partition of Lebanon and would almost Beginning in last June 1982, Israel per­ certainly entail the extension of intra-Le­ mitted the Phalange militia to take up new banese hostilities in which civilians would positions in areas controlled in recent years once again be placed most at risk. by the Druze under National Party leader Walid Jumblatt and to establish roadblocks controlling traffic into Druze villages in the Summation Chouf. This introduction of the Phalange has led to harassment and tension that has Present Syrian actions in Lebanon con­ erupted in armed clashes, shelling and kid­ stitute a clear threat to the civilian popula­ napping of both Christian and Druze civil­ tion and to the integrity and future of ians by militia groups. Lebanese law and administration. A contin­ If Israel had acted to freeze the status uation of present trends or the rekindling quo that existed upon the Israeli Defence of the civil war will result in more civilian Forces’ (IDF’s) entry into the area and to deaths and the effective separation of the intervene to stop sectarian fighting most of Syrian-controlled zone from the rest of the subsequent deaths and suffering of the the country. These trends would be revers­ civilian population could have been pre­ ed by Syrian acceptance of the responsibili­ vented. ties and limitations incumbent upon an oc­ Palestinian civilians living in Israeli-oc­ cupying power according to international cupied Lebanon continue to face serious law. threats to their lives, property and well­ being. The special threat to the Palestinian civilian population in the South is a prod­ Israeli-Occupied Zone uct of the extreme animosity toward them borne by the Lebanese Phalangists and As late as July 1983, Israeli armed other rightist Christians and the continuing forces occupied the Southern 40% of Israeli policy of allowing the Phalangist and Lebanese territory. Although Israel and other militia elements access to the Pales- Lebanon signed an agreement on 17 May tinian-populated areas. 1983 that provides for the withdrawal of The IDF and Israeli-sponsored militias Israeli forces from the country, Israel has and committees have on several occasions stated that it will not evacuate Lebanon interfered with the operation of UNRWA until PLO and Syrian forces also with­ and other organisations assisting the Pales­ draw. tinians in the South. Clinics and schools Israel has contended that it is not an have sometimes been closed temporarily, occupying power in Lebanon as defined by employees have been harassed, cars have international law. No international legal been stolen and property destroyed. authority, however, has supported this Israel also forced the closure of the position. On 13 July 1983, Israel’s High medical facilities of the Palestinian Red Court of Justice also ruled, in a case con­ Crescent Society in South Lebanon and cerning the status of detainees Israel holds arrested most of the male staff members. in Lebanon, that the Geneva Conventions It is highly possible that the Israelis hop­ apply and that Israel is an occupying ed to encourage a massive Palestinian refu­ power. gee exodus from the South Lebanon. Phalangist militiamen have been left in a continues to hold about 5,000 Palestinian, position to threaten Palestinians and imple­ Lebanese and other prisoners at the Ansar ment their goal of expelling the Palestine ci­ prison camp in South Lebanon, according vilian population from the Israeli-occupied to both ICRC and official Israeli figures. In city of Sidon. None of the measures the IDF addition to those detained at Ansar, Israeli have taken to counter anti-Palestinian vio­ officials have admitted holding prisoners at lence has ended or reduced the evictions or other locations in Lebanon. There is, more­ the accompanying acts of violence. Leba­ over, evidence that some prisoners are held nese also are subject to illegal and some­ at undisclosed locations in Israel. In the times violent actions by the militias and the early weeks of the occupation, conditions new civil guard units that Israel has estab­ for detainees were frequently very bad. lished in the area, and they have been seized Released detainees report that conditions and detained at militia offices and bases and at Ansar improved considerably after the have reported being beaten and subjected ICRC obtained access in mid-July 1982. to degrading treatment while in custody. However, the physical facilities are grossly Militia and civil guard elements have inadequate for long-term detention. De­ also interfered with the operation of Leba­ tainees are also at present denied a number nese voluntary and charitable agencies of Geneva Convention humanitarian rights working in the South. Especially in the vil­ that could alleviate the circumstances of lages of South Lebanon, local militia com­ their confinement. manders or heads of the Israeli-appointed As well as the large number of persons civil guard units have coerced local resi­ arrested on suspicion of security violations, dents to pay ‘taxes’ and to contribute re­ smaller numbers continue to be detained cruits to their forces with threats of repri­ for other reasons. Local Lebanese leaders sals if their demands are not met. have been held for non-cooperation with The most serious threat to the Lebanese occupation authorities. in the South as in the case of the Pales­ Israel continues to refuse to recognise tinians, stems from Israel’s policy of arm­ those whom it holds either as prisoners of ing and encouraging the proliferation and war or as civilian internees and the treat­ operation of militia groups. ment of detainees fails to meet the stan­ In recent weeks, Israeli authorities have dards of the Geneva Conventions. begun to institute measures that have creat­ ed new threats to the rights of the civilian population. These measures have been a Law and Administration response to increasing attacks on Israeli forces in Lebanon by guerrillas identifying Israel has said that one of its objectives themselves as the ‘Lebanese National Resis­ in Lebanon is to encourage the restoration tance Front’. Incidents which have recurred of central government control to the coun­ in Tyre and Sidon have raised fears that try. Israeli occupation authorities in South West Bank-style policies would become the Lebanon however continue to carry out norm in Israeli-occupied Lebanon. policies that contradict this stated aim, for example:

Detainees - Israel has encouraged three different mi­ litia groups in South Lebanon: the Pha­ More than a year after its invasion, Israel lange, the Free Lebanese Army and the National Guard. fugee camps in September 1982, there has - The IDF has tried to set up a new civil­ been a tentative re-emergence of pre-civil ian administrative council in the South. war accords among Lebanese traditional (These attempts to establish militia and leaders and a new determination not to let civilian units are violations of interna­ the country slip into anarchy again. In ac­ tional law prohibiting an occupying pow­ cord with the November 1982 action of er from changing the existing law and ad­ the Lebanese parliament, the country is in ministration of an occupied territory.) effect in a state of emergency with the gov­ - The IDF has circulated a questionnaire ernment granted extraordinary powers, regarding village population and econo­ presumably to continue until such time as my to all village heads. This has increas­ law and order are fully restored to the ed Lebanese fears of a long-term Israeli country. Under these conditions, citizens occupation. and residents do not enjoy all the rights - Israel has interfered with Lebanese trade, and protections usually afforded them. commerce and communications.

Safety of Civilians Summation In the area of Beirut under the control Israeli policies in occupied Lebanese ter­ of the Lebanese government serious threats ritory threaten the lives and welfare of the to the safety and welfare of civilians in­ civilian population, particularly of Pales­ clude random violence due to the fact that tinians, fail to offer adequate protection of political stability in the area has not yet the rights of detainees and create facts and been fully restored, a pattern of attacks on pressures for separating South Lebanon opposition groups, the lack of available from the rest of the country. These policies housing for poor communities, the need continue despite the achivement of a Le- for affordable medical and social services, banese-Israeli withdrawal agreement, and and problems related to visas, work and create obstacles to the eventual implemen­ residence permits. tation of the agreement. Both to offer ade­ In addition, the failure of Lebanese pro­ quate protection of civilian rights in the secutors to bring to trial any of those who present circumstances and to allow for the carried out the Sabra and Shatila massacres possibility of an Israeli withdrawal in the even when the identities of some were future, it is essential that Israel comply known, creates an impression that the se­ with the international law of belligerent oc­ curity of Palestinians in Lebanon is not cupation in occupied Lebanon. This should given adequate consideration. not imply any alteration of Israel’s obliga­ In Mount Lebanon and East Beirut, the tion to withdraw in compliance with UN Lebanese Forces (the militia of the Pha­ Security Council resolution 508-9. lange Party) have, as in the Chouf and South Lebanon, been implicated in some of the most brutal abductions and killings Lebanese Government in the period under consideration. These Administered Zone are directed for the most part at Palesti­ nians, Lebanese Muslims and those sympa­ Since the invasion and particularly since thetic to groups advocating reform in the the massacres in the Sabra and Shatila re­ Lebanese political system. As a result, those who differ politically or ethnically granted the ICRC access to some of its pris­ from the Phalange are at serious risk when oners on 19 March 1983 and by June most travelling in areas under their control. prisoners’ situation had improved consider­ Phalange checkpoints are often the site ably. Many of those detained have been re­ of such attacks. Passengers are frequently leased and many still being held are being forced out of cars, and verbally harassed or accorded due process under Lebanese law. physically abused and detained, sometimes It is impossible to establish the number of for a period of hours or days or longer. people who have been detained or are cur­ The problem of housing people displac­ rently being held by the Lebanese Forces ed in the last eight years of conflict has as they have never granted international reached crisis proportions and poses a se­ representatives access to their places of de­ rious challenge to the ability of the Leba­ tention. After the massacres at the Sabra nese government to respond effectively and and Shatila refugee camps perpetrated by sensitively to the needs of all its people. Lebanese rightist militias, in addition to From a strictly humanitarian point of view, the 384 killed, another 991 were missing. these people should not be displaced unless Hundreds more have joined the ranks of adequate provisions can be made for them. the disappeared since then. Palestinian Red Crescent Society (PRCS) On 23 March 1983, the Lebanese Min­ facilities, medical supplies and staff have ister of Internal Affairs and the Great Mufti since the invasion become targets of offi­ (the Muslim religious leader) expressed the cial and unofficial harassment and abuse. belief that all those taken by the Lebanese A pattern is emerging of official obsta­ Forces, particularly those abducted during cles faced by certain groups (e.g. the Pales­ the massacres at Sabra and Shatila, had tinian community) and individuals in their been killed. The number of such deaths efforts to obtain work and residence per­ estimated at the time was over 800. mits and visas and to renew travel docu­ The government of President Gemayel ments. at present exerts effective control over only greater Beirut and relies for assistance in keeping the peace upon MNF contin­ Detainees gents from Britain, France, Italy and the U.S. Lebanese authority is slowly being re­ In October 1982, the Lebanese Military stored. There are two potential issues of Attorney General admitted 1,441 people concern from a humanitarian point of view, were being held in detention. The govern­ the evolving relationship between the gov­ ment said that it was holding them because ernment and the Phalange, and the likely their papers were not in order, but in many future government attitude toward mem­ instances the motivation appeared to be bers of heretofore under-represented and political. Arrests were carried out without poor communities including, but not limit­ warrants. Conditions of detention were ed to, Palestinians. bad; press reports spoke of extreme crowd­ By distancing himself from the Phalange ing, lack of sanitation, etc. There were re­ militia and by courting the leaders of West ports of beatings during interrogation and Beirut, President Gemayel appears to have of deaths in prison; the prisoners were not gained the support of the Phalange Party allowed family visits or access to legal and of significant elements of Lebanon’s counsel and the ICRC was not permitted to Muslim community. see them. The Lebanese government finally Lebanon has yet to articulate firm poli­ cies regarding the approximately 400,000 ing the Phalange Party, which is his party Palestinians in the country and regarding and was founded by his father, and regard­ housing and residence and work permits. ing the Lebanese Forces which were com­ Although Lebanese governmental au­ manded by his brother and are reluctant to thority theoretically extends to the Kes- cede the considerable power they have roun and Metn districts of Mount Lebanon gained. The situation may have been im­ and East Beirut, in fact the Phalange and proved by President Gemayel’s victory over its militia are the dominant military and the Lebanese Forces in the recent elections political authority in these areas and con­ for the Phalange Politburo. tinue to exert considerable influence in re­ gional affairs. The Phalange, which has a natural con­Summation stituency in these traditionally predomi­ nantly Maronite areas, has carried out a Application of the rule of law and re­ number of quasi-governmental functions spect for internationally accepted human there for many years; for example, it has rights standards are essential to the efforts collected taxes to pay for maintenance of of the government of Lebanon to re-estab­ roads, collection of garbage and other ur­ lish its authority, win the confidence and ban projects or public works, in addition to cooperation of its people and secure vital protection of the population. international support. Recently, there have This situation now interferes with the been encouraging signs that some human efforts of the central government to extend rights abuses by the government have di­ its authority into these areas. President minished. Gemayel faces a delicate situation regard­

South Africa and the Ciskei

South Africa persists in its policy of Africans (who alone were entitled to vote). creating homelands with the objective of In this way a legal wedge was drawn be­ making all Blacks citizens of these suppos­ tween the Coloureds and the Indians on edly independent puppet states and aliens the one hand, together totalling 3.5 million, in the rest of South Africa. This leaves and the Black majority on the other (25 South Africa with the problem of the sta­ million). The proposal for this constitu­ tus of the Coloureds (i.e. those of mixed tional reform caused chain reactions among race) and the Indians. This has now been the Blacks, leading in four months to the resolved by a new Constitution which formation of three large political coalitions, grants the Coloureds and the Indians very which the South African press characteris­ limited participation in parliamentary ac­ ed as an unprecedented event in the past tivity. The changes were approved in a ref­ quarter of a century. There has not been erendum by two-thirds of the White South any consultation with the Coloureds and Indians about the proposal. Prime Minister The Ciskei Homeland Botha has simply said: “We will see later how their traditional leaders wish this to be An article in ICJ Review No. 30 of June done.” 1983 described the practice of torture in Under the new Constitution the Parlia­ one of the homelands, Venda. Since then ment, composed of 308 members, is made another homeland, the Ciskei, has become up of three Houses: the House of Assembly notorious for its brutally repressive govern­ with 178 White members, the House of ment as a result of a report published in Representatives with 85 Coloured mem­ October 1983, prepared by Mr. Nicholas bers, and the House of Delegates with 45 Hayson of the Centre for Applied Legal Indians members. Studies of the Witwatersrand University in The President of the Republic assumes South Africa. The report is entitled ‘‘Ruling the functions of Head of State and Govern­ with the Whip”. ment. He is elected by a simple majority by The Ciskei was the fourth homeland to an electoral college made up of 50 Whites, be granted ‘independance’, in December 25 Coloureds and 13 Indians, elected sepa­ 1981. It has a population of about 700,000, rately by the three chambers. almost half of whom have been re-located Each House legislates separately on mat­ there from ‘white’ South Africa in the last ters concerning its own community, and it 20 years. The capital, Mndantsane, is a falls to the President of the Republic alone ‘township’ (i.e. a dormitory suburb), sec­ to decide, without any appeal even to the ond only in size to Soweto, which provides Supreme Court, if a matter is of a ‘commu­ the labour force for the neighbouring town nity’ or of a ‘general’ nature. of East London in ‘white’ South Africa. The Houses each vote separately on mat­ The Ciskei is ruled by Lennox Sebe, ters of a general nature. In the case of a dis­ who ousted the Chief Minister in 1973. Al­ agreement between the three Houses, the though a commoner he has proclaimed President submits the draft text to the ‘Pres­ himself a Chief, and more recently ‘Presi­ ident’s Council’ either for decision or advice. dent for Life’. He is leader of the single This Council has 60 members, 20 Whites party, the Ciskei National Independence elected by the House of Assembly, 10 Col­ Party (CNIP). He rules largely through the oureds by the House of Representatives Chiefs and the headmen who, as Mr. Hay- and 5 Indians by the House of Delegates. som points out, have in addition to their The remaining 25 are appointed by the power to allot land, “extensive executive President, of whom 10 are nominated by authority, control the distribution of social the opposition parties in the three Houses. welfare grants, and receive financial re­ The President is head of Executive, ap­ wards”. The Ciskei parliament has only 22 points the ministers, presides over the Cab­ elected representatives and 32 appointed inet, and is Commander in Chief of the tribal personages. To enforce his rule Sebe armed forces. All legislation requires his as­ has an extensive security apparatus, includ­ sent. He also nominates 8 members of par­ ing the police force, the Ciskei Central In­ liament (4 Whites, 2 Coloureds and 2 In­ telligence Agency (CCIA) (which works dians). He continues to be responsible for closely with its South African counter­ the control and administration of “Black part), the Traffic Police, and, at times of affairs”, i.e. the affairs of the overwhelm­ unrest, an unruly force of auxiliary police ing majority of the population, the unrep­ or vigilantes, formerly known as the Green resented Blacks. Berets. The head of this apparatus was the President’s brother, Major-General Charles only 32 were convicted, they were fined Sebe, until he was recently arrested along 100 Rand or 50 days imprisonment. with several colleagues, including the Min­ Over 1,000 people have been arrested, ister of Transport (another brother of the many for non-existent offences, such as President) apparently for plotting to over­ failure to produce on demand documents throw the President for Life. they were not obliged to carry. Most of On 19 July 1983 the publicly owned these have eventually been released, either Ciskei Transport Corporation (CTC) an­ without trial or on the prosecution’s failure nounced an 11% fare increased. The leaders to produce any evidence against them in of the SAAWU and other unions formed a court, but only after they have been de­ 10-man Committee to negotiate with the tained for days or weeks in abominable CTC, but were curtly told that the increase overcrowded prison conditions. The most would come into effect. Thereupon a boy­ horrific of the places of detention is the cott of the buses was called. At tremen­ Siza Dukashe stadium manned by vigilantes. dous sacrifice and in face of appalling bru­ Up to 80 persons at a time have been lock­ tality and harassment the workers have ed for days in rooms only 8 metres square, maintained an 80%—90% successful boy­ with no toilets, no washing facilities, no cott for months. The President’s determi­ food or water and no blankets. They have nation to break the boycott and the severi­ had to defecate on the floor. ty of the methods used has had the oppo­ Systematic torture included, in addition site effect to that intended. It has strength­ to beating with sjamboks or electric cables, ened the determination of the people not the ‘helicopter’ (suspension for hours from to yield, has increased recruitment to the a rod or pipe with the hands handcuffed to unions, and produced a remarkable con­ the feet), hooding with a wet sack to the frontation between the people and their point of suffocation, and other familiar oppressive government. South African torture methods. The authorities have attempted by quite Extensive use was made of the powers illegal use of force to make people catch of administrative or ‘preventive’ detention the buses. Among the methods used have under which people can be held incommu­ been violent attacks by vigilantes and police nicado without charge and without any against car owners and taxis trying to take right of appeal to the courts for up to 90 people to work or to the railway stations; days (renewable). Their families are not en­ passengers have been whipped with sjam­ titled to know their whereabouts. These boks (make of dried rhinoceros hide); cars powers under the National Security Act have been confiscated; assaults have result­have been used to detain over 70 people, in­ ed in broken limbs and other serious inju­ cluding trade unionists, students, journal­ ries to men and women alike; commuters ists, political figures and community lead­ attempting to catch trains have been simi­ ers. One was a defence lawyer, Hintsa larly assaulted and even fired upon, in over Siwisa, who had made an application to the 90 cases fatally. Seeking to avoid these as­ Ciskei Supreme Court for an interdict re­ saults many workers have walked up to 40 straining the police from assaulting com­ kilometres a day to and from work or the muters (the order was granted, but the trains. A curfew was imposed from 10.30 practice continued). The effect of his de­ pm to 4.00 am and enforced by vigilantes tention was, of course, that many victims for longer hours as a harassment. Of 700 al­ of assaults felt there was no law firm to leged curfew violations in the first week, which they could turn for help. When two South African lawyers were engaged to re­ 31 of the Internal Security Act 1982 au­ place him, they were promptly banned thorises the detention of potential wit­ from the Ciskei. Similarly a Dr. Mauli who nesses until the completion of the trial, recorded evidence of assaults by the securi­ provided only that the accused is charged ty forces was detained. within six months of the date of the wit­ At the date of publication of Mr. Hay- ness’s detention. This may result in deten­ som's report in October, the boycott was tion for months and even years. The gov­ still being successfully maintained in spite ernment’s argument that such detention is of, and largely because of, the brutality to protect the witness, does not bear exam­ with which it had been met. At the time of ination, especially in view of the conditions going to press in December, it is understood of detention. They are kept in isolation, to be still continuing. they have no legal representation, and they are interrogated brutally to obtain from them information which may be used be­ The Rule of Law in South Africa fore the courts. Those who refuse to testify may be prosecuted and condemned to sen­ A 62-year-old Anglican clergyman, Rev­ tences of up to 5 years in prison. Those erend Timothy Stanton, was imprisoned in who testify but whose testimony differs September 1983. He is to serve a sentence from previous statements may be accused of six months in Diepkloof Prison for hav­ of perjury. In spite of these pressures the ing refused to answer questions connected resistance to acting as State witnesses is in­ with a police investigation of alleged high creasing. treason by a 22-year-old student, Carl Niehaus. The student tried to commit sui­ cide a month after his detention, and he Press Freedom has since been condemned to 15 years im­ prisonment. The Reverend Stanton stated, Since the introduction of new press reg­ “Mr Niehaus is my friend, although I don’t ulations in South Africa in February 1983, know him very well. I have no idea of what the task of the liberal press has been made he has done or is supposed to have done to increasingly difficult. For several months be accused of high treason, but I have faiththere has been practically no news concern­ in him. I believe that he is concerned with ing the activities in Namibia of the armed contributing something towards a more wing of SWAPO or of the South African just order of society than the one existing Defence Force, except for official reports. here. I would wish to support him in this. A political correspondent of the Wind­ Testifying for the State against this young hoek Observer, Gwin Lister, has been man would be a cause of shame for the rest charged under the South African Customs of my life. I feel that this would be a form and Excise Act, the Publications Act, and of treason and I cannot do it.” This case il­ the Internal Security Act on the basis of lustrates the acuteness of the situation of certain documents found in her possession. State witnesses in political trials. On returning from the United Nations Con­ South Africa has for long been finding ference on Namibia held in Paris on April it difficult to persuade people to testify 25—29, she was detained for several hours against the accused in political trials. Since at the Jan Smuts airport by the security 1965 the detention of witnesses in police authorities. Documents she had brought cells has been authorised. Today, Section back from the conference were seized. They included United Nations publications, and been opened against them under Section also other publications made available to 27(b) of the Police Act. This section makes conference participants such as the Interna­ illegal the publication of any statement tional Defence and Aid Fund’s ‘Apartheid’s concerning the South African police or one Army in Namibia’ which, like other publi­ of its members in the exercise of its func­ cations of this ‘banned’ organisation, are tions without having reasonable grounds to prohibited in South Africa. She was called believe that the statement is true. These to the Windhoek Security Police headquar­ proceedings apparently relate to reports in ters in June to learn that legal proceedings the Rand Daily Mail, The Sowetan, The Ci­ had been started against her and that the tizen, Die Burger, and a report of the South case was being studied by the Attorney- African Press Association concerning com­ General of Transvaal. Proceedings have also ments made by the Catholic Archbishop been taken against several other journalists, Denis Hurley on atrocities committed by and a number of South African newspapers the South African forces in Namibia. have been warned that an investigation has

Sri Lanka

At the end of July 1983, Sri Lanka wit­ With the growing failure to prevent the nessed its worst outburst of ethnic violence terrorists’ activities, the government started since independence, causing severe loss of using the Terrorism Act more widely. For life and property to the Tamil minority*. example, on November 11,1982, 30 people This did not come as a surprise to those were arrested. These included 8 priests, 6 who have been following events in the belonging to the Catholic church and two country. to the Anglican and Methodist churches. A The October 1982 Presidential election university lecturer and his wife were also and the referendum held in December to arrested on the same day. On November 17, extend the life of the Parliament (see ICJ two of the Catholic priests, Fr. Singarayer, Review No. 29 for comments) were follow­ Fr. Sinharasa and the university lecturer ed by an increase in the activities of the Mr. Nityanandam and his wife Mrs Nirmala small Tamil terrorist organisation called the Nityanandam were charged under the Pre­ ‘Tigers’. A Sri Lanka government publica­ vention of Terrorism Act. They were ac­ tion lists 16 instances of violent acts by cused of withholding information about the Tigers between October 1982 and the terrorists and habouring them. (The other beginning of July 1983, which includes six Catholic priests were released.) the killing of eleven persons belonging to Fr. Singarayer in a letter addressed to police, army and navy. the President of the Bishops Conference of

* For a detailed analysis of the ethnic problem see Ethnic Conflict and Violence in Sri Lanka, by Prof. Virginia A. Leary, ICJ, Second edition updated by the ICJ staff, August 1983. Sri Lanka stated that he was tortured and the Secretary and Mr. S. A. David, the Pres­ made to sign statements. ident of the Ghandhiyam Society were ar­ In the predominantly Tamil districts rested. It was alleged that both were tor­ protests were organised for the release of tured, and even after a court order access the priests and others. On 10 December a to their lawyers was delayed. Both were ac­ protest fast and a prayer meeting were or­ cused of helping the Tamil terrorists through ganised at St. Anthony’s church at Vavunia. the Ghandhiyam organisation. Dr. Rajasun­ After the prayer meeting, the gathering was daram was one of the persons killed in the attacked by the army, who even entered Colombo prison riots between 25 and 29 the church to assault some of the people. July 1983. This led to further protest in the form of Events that took place in the months of hartal (closing of shops and business estab­ May and June clearly indicated that the lishments) in the town of Vavunia. situation was deteriorating seriously. The beginning of 1983 saw a continuing On May 18, polling took place for 37 escalation of the violence by both sides, municipal and urban Councils and 18 Par­ the Tamil terrorists and the Sri Lankan ar­ liamentary seats. It was reported that be­ my. In January a U.N.P. organiser was shot tween nominations and polling day, mili­ dead at Vavunia by the terrorists. In Feb­ tant Tamil youths had launched a violent ruary a police Inspector and a driver were campaign for the boycott of the polls. Two shot dead. In March an army vehicle was U.N.P. candidates and the party secretary ambushed and five soldiers were injured. of the Jaffna district were shot and killed. The counterviolence by the army and Acts of violence to disrupt the elections in police included an attack in March on a re­ the Jaffna district were maintained right up fugee settlement helped by a voluntary or­ to election day on 18 May, when several ganisation called the Ghandhiyam Society. polling stations were attacked with home­ The Ghandhiyam Society, which wasmade bombs. The major confrontation formed in 1976 as a social service organisa­ came after the voting ended, when a gang tion, had been involved in rehabilitating of armed Tamil youth stormed a polling the refugees of the 1977 and 1981 racialstation two miles from Jaffna in a bid to riots. These refugees had fled from the seize the ballot boxes. An army corporal southern parts of Sri Lanka and had settled on guard duty was killed and four police­ down in the existing Tamil villages in and men and a soldier were wounded. around Trincomalee district. The Ghandhi­ At 5 pm on the same evening, a state of yam organisation with the help of church emergency was declared. Later in the night, agencies from West European countries had in what was clearly a retaliatory strike, sol­ been helping these refugees to build houses, diers burnt houses and vehicles and looted dig wells, and use better methods of culti­ in the general vicinity of the polling booth vation, and was conducting health and in which the incident had taken place. Sev­ education programmes. eral million rupees worth of damage was One such village settlement in Pannaku- done before the soldiers were pulled back lam in Trincomalee district was attacked to their barracks. on 14 March 1983. Sixteen huts were A report published on the incident in burnt and the Ghandhiyam volunteers were the Far Eastern Economic Review of 2 intimidated. Though the affected families June 1983 quoted a senior police officer as filed a complaint, no action was taken. In saying, "what happened in Jaffna after the the beginning of April Dr, Rajasundaram, shooting is exactly what the terrorists want; they want the people to be resentful and nomic Review of June 23, 1983, reporting embittered with the army”. from Jaffna on the May 18 incident. He On 1 June 1983, a farm and a children’s said, “At present the northern and eastern home in Kovilkulam village near Vavunia provinces are experiencing a vicious circle and run by the Ghandhiyam Society was of violence: terrorism followed by reprisals burnt. Mr. Tim Moore, Honorary Treasurer by the army and other security agencies, of the Australian Section of the ICJ who which have led to a drastic deterioration of was able to visit the place in June 1983, law and order”. says in his report that he “discussed the In the midst of this increasing violence operations of the movement with a wide by the army and police an Emergency Reg­ range of people in Sri Lanka and came to ulation was promulgated on 3 June 1983, the conclusion that it is not involved in authorising the police, with the approval of politics or with the Tigers, but is a genuine the Secretary to the Minister of Defence, social service organisation”. The Sinhalese to bury dead bodies in secret without any suspicions with respect to its resettlement inquest or post mortem report. This extra­ activities appear to arise more from in­ ordinary ordinance applies to the burying creases in Tamil populations in areas close of any dead body, including persons who to Sinhalese settlements than from any le­ have died in custody. gitimate grievances about its activities”. In October this year when the report of The army continued to penalise the the Sri Lanka government was presented to Tamil community at random for the ac­ the Human Rights Committee under the tions of the militant Tamil youth. For ex­ International Covenant on Civil and Politi­ ample on 1 June, two members of the air­ cal Rights, some members of the Commit­ force were killed by the Tamil youth while tee expressed serious misgivings about this they were making routine purchases in the Emergency Regulation. They questioned local market in the town of Vavunia. One the need for providing such unlimited pow­ of the shops was alleged to have been used ers to the police in respect to burial or cre­ by the Tamil youth to attack the two air­mation of dead bodies. When replying to men. In retaliation, soldiers set fire to the questions, the Sri Lanka representative shop and the adjacent shops. Mr. Tim argued that the Secretary to the Minister Moore, who inspected the site, says that considers documents pertaining to the case the damage “extended to some 16 or 17 like a magistrate before authorising a burial small shops and destroyed the means of without inquest, the only difference being livelihood and a considerable portion of that the proceedings were not public. He the assets of the traders involved”. said that people were excluded from the The innocent Tamils affected on both funeral in order to prevent attendance by occasions had no possibility of claiming sensation-seeking journalists who might compensation for the losses incurred by further exacerbate the feelings of the ma­ the illegal acts of the soldiers. Such disci­ jority community. This hardly seems an plinary action as was taken against the sol­ adequate reason for excluding the relatives. diers involved in the May 18 incident was Inquest proceedings on deaths in custo­ withdrawn by the government when 40 sol­ dy is a safeguard against torture and extra­ diers of the same regiment deserted in pro­ judicial killings. An inquiry by an executive test. officer cannot be considered equal to a ju­ The situation was aptly summarised by dicial inquest. a correspondent of the Far Eastern Eco­ In addition to the promulgation of this Emergency Regulation, the government’s “After six years of United National Par­ lack of respect for the rule of law was evi­ ty rule, Sri Lanka is once again near the dent in three cases in which a mantle of incendiary situation of 1958. Let’s hope protection was thrown over officials who to God that no one, from any side, will had exceeded or abused their powers. In provide that little spark that is necessary the first case two soldiers who had been ar­ to set the country aflame. The politi­ rested and remanded in connection with cians of all parties, should be especially the shooting of a lame Tamil youth were careful about their utterances in this released by the magistrate on the instruc­ grave situation.” tions of the Attorney General. In the other two cases the government promoted police Unfortunately the spark was provided officers against whom the Supreme Court on 23 July, when thirteen soldiers were kil­ had passed strictures for exceeding their led in an ambush by members of the small authority. This was justified by the govern­Tamil terrorist organisation. According to a ment on the grounds that the police must report published in the London Times on be able to do their duty without fear of the 27 July, the soldiers were killed in reaction consequences of adverse court decisions. to the abduction and rape of three Tamil Asked by members of the Human Rights women by a group of soldiers. In addition, Committee to comment on these cases, the three days before the ambush, two suspect­ government replied that in one case the ed terrorists were shot by army soldiers at promotion was of a ‘routine nature’ and in Meesalai Chavakacheri, fifteen miles from the other the officer concerned had com­ Jaffna. The government denies the rape al­ plained to the Supreme Court that he had legation and says that it was fabricated not been a party and that his fundamental after the ambush. Tamil sources insist that right to a fair hearing had been denied. It the incident took place, and that as often appears from this that the government still occurs the women concerned, afraid of the disregards the opinion of the Supreme social stigma, were not willing to state it Court which found that the actions of the publicly. police were unlawful. These conflicting reports only go to sup­ In face of this it is not surprising that port the demand for an impartial inquiry the police and army increasingly take the to investigate the causes of recent violence. law into their hands. The official death toll of the riots be­ In these circumstances, the tension be­ tween 24 July and 2 August 1983 is 387 tween the Tamils and the Sinhalese increas­ and the number of homeless in Colombo ed and became widespread. The Far East­ alone at the peak of the violence was esti­ ern Economic Review of 23 June 1983, re­ mated at 90,000 by a senior official. Tamil ported “what cannot be ignored is the cur­ sources claim that over 2,000 people were rent total alienation of the Tamil region killed. from Colombo, plus an unusually high de­ The most disturbing aspect of the riot gree of antipathy between the Tamils and was the conduct of the armed forces. On 7 the majority Sinhalese communities of Sri August President Jayawardene disclosed Lanka”. that the army in Jaffna had gone on the In the same month Gamini Navaratnae, rampage in response to the killing of the a Sinhala journalist wrote in the Saturday thirteen soldiers on 23 July and had killed Review, an English language weekly pub­ 20 innocent civilians. He also disclosed that lished in Jaffna, this information had been withheld from him by the army until 7 August. The Civilhave said that the authorities at the Colom­ Rights Movement of Sri Lanka has alleged bo prison had information that there might that the number of people shot and killed be a second attack but the Tamil prisoners by army personnel was much higher than “could not be moved in time... to save the 20 officially admitted. It has also been them”. The magistrate’s inquiry returned a reported that on 25 July a group of 130 verdict of homicide in all cases and directed naval personnel in Trincomalee in another the police to make further inquiries as the outburst of violence burned down 175 prison officials testified that they were un­ Tamil houses, killing one Tamil and wound­ able to identify any of the persons respon­ ing ten others, before they were stopped. sible for the killings. There are numerous reports that police The impact of the communal violence and army stood by idly, while rioters beat on the Tamils was shattering. More than or burned people to death. An example is 100,000 people sought refuge in 27 tempo­ the following Associated Press report from rary camps set up across the country. Com­ Norway, menting on the violence Neelan Tiruchel- vam, a Tamil lawyer and member of Parlia­ “A Norwegian tourist back from Sri ment, stated, “the latest round of violence Lanka told an Oslo newspaper yesterday has put the finishing touch to the eradica­ that she had witnessed the mass murder tion of the Tamils. This time the Tamil of Tamils by a Sinhalese mob. professional and entrepreneurial class has “A bus full of Tamils was forced to stop been destroyed”. just in front of us in Colombo, a Sin­ A government spokesman has denied halese mob set it on fire and blocked that the destruction and killing of Tamils the doors. Hundreds witnessed that amounted to genocide. Under the Conven­ about 20 Tamils were burned to death,” tion on the Prevention and Punishment of said Mrs Eli Skarstein of Stavanger. the Crime of Genocide, acts of murder Mrs Skarstein added that “Swedes they committed with intent to destroy, in whole met said they had also seen people pour or in part, a national, ethnical, racial or re­ ‘ petrol directly over Tamils on the road ligious group as such are considered as acts and put them on fire. There was no mer­ of genocide. The evidence points clearly to cy. Women, children and old people the conclusion that the violence of the were slaughtered. Police and soldiers did Sinhala rioters on the Tamils amounted to nothing to stop the genocide"." acts of genocide. Surprisingly President Jayawardene in Another deplorable incident during the his first public comment made three days riot was the killing of 52 Tamil prisoners in after the riots had begun, did not condemn Colombo’s Welikada jail. The government the violence against the Tamils. In trying to allege that they were killed in a riot by placate the majority Sinhalese, he seemed other prisoners. Of the 52 prisoners, 35 by implication to justify the atrocities. The were killed on 27 July and another 17 on most likely explanation of this extraordi­ 29 July, raising questions as to how the as­ nary statement is that it was only by speak­ sassinations could have been repeated after ing in these terms that he was able to re­ an interval of two days without the conniv­ store discipline in the army and police, and ance of the prison officials. In the magis­ reestablish order. trate’s inquiry held on the killings, the Following the communal violence the Chief Jailor of the prison is reported to government announced the banning of three left-wing parties for their alleged involve­ willing to negotiate with the government of ment. The three banned parties were the Sri Lanka, if no preconditions were impos­ Janata Vimukti Peramuna or Peoples Liber­ ed. Given this background the amendment ation Front, the Nava Sama Samaj Party or to the Constitution has only alienated the New Equal Society Party and the Commu­ TULF, since the leaders of the party were nist Party of Sri Lanka. Several members placed in an impossible situation political­ belonging to these parties were arrested ly, for they would have forfeited the confi­ and detained incommunicado without ac­ dence of the Tamil population if they had cess to relatives or lawyers. No evidence decided to take the oath. The amendment has been published to establish any link be­ to the Constitution has left the Tamils with­ tween the violence and these three parties. out any representation in the Parliament Subsequently it has been reported that the and in effect has disenfranchised the Tamil ban on the Communist Party of Sri Lanka people. has been lifted and the arrested leaders re­ Even after the visit of the Indian Prime leased. Minister’s envoy to mediate between TULF In August the Parliament approved an and the Sri Lanka government, President amendment to the Constitution under Jayawardene was not willing to recognise which all members of the Parliament, other the political role of TULF in the negotia­ local bodies and government employees tions unless the TULF members took the were required to take an oath that he or oath. As a consequence TULF was not in­ she ‘will not directly or indirectly in or vited to the all-party conference called by outside Sri Lanka support, espouse, pro­ the President on 21 October to deal with mote, finance, encourage or advocate the the problems of the Tamils. All major op­ establishment of a separate state within the position parties invited to the conference territory of Sri Lanka’. Any person who declined to attend on the grounds that the fails to take such an oath would cease to conference would not serve any purpose hold office. without the participation of the Tamils. The Tamil United Liberation Front The non-recognition of TULF’s political (TULF) which is the main opposition party role and the constitutional amendment in the Parliament instructed its members may well contribute further to the politics not to take the oath with the result that on of separatism. The present lull gives an ap­ 21 October the TULF members of Parlia­ pearance of normally, but the grievances of ment forfeited their seats by not attending the Tamils still exist and have grown with sittings of the House for three months. the injustices done to them during the re­ At the time of its formation in 1976 the cent disturbances. Reports of violations by TULF did pass a resolution advocating se­ the police and army continue, and a renew­ cession. However, the subsequent history al of violence is widely feared. of the Party shows that its leaders have In a statement circulated in August repeatedly shown readiness to compromise, 1983 to members of the UN Sub-Commis- have never advocated or had recourse to sion on the Prevention of Discrimination any unconstitutional action and have clear­ and Protection of Minorities, the Interna­ ly denounced and dissociated the party tional Commission of Jurists urged that from the terrorist ‘Tigers’ organisation. Even after the recent disturbances they in­ — since innocent Tamils unconnected with dicated to the Indian Prime Minister, who violence or terrorism have been the prime was trying to mediate, that the TULF was victims, immediate measures should be taken to ensure the safety of Tamils in effective political participation of the refugee camps, en route to Jaffna or Tamils who represent 20% of the popu­ elsewhere in the island, and to convince lation ; them that they will be adequately pro­ — it should demonstrate its commitment tected; to the Rule of Law through repeal of - humanitarian assistance to the uprooted the Prevention of Terrorism Act which and displaced Tamils should be facili­ violates Sri Lanka’s international obliga­ tated; tions under the International Covenant - firm control over elements in the armed on Civil and Political Rights to which it forces and elsewhere which are found to is a party; and have contributed to the recent violence - it should establish an independent judi­ should be established, and the killing of cial inquiry to investigate the causes of and other attacks on innocent Tamils by the recent violence, the events occurring the armed forces in retaliation for ter­ during the violence, and to assess respon­ rorist actions must cease; sibility for the resulting loss of life and - a dialogue with legitimate representa­ devastation. The killing of detainees in tives of the Tamil population with a view Walikada prison should be the subject of to resolution of outstanding grievances a special investigation. Those responsible should be established. National unity for arson and killing should be prose­ can clearly be maintained only with the cuted regardless of any official position.

Tanzania

Seven years have passed since the Dar- Rule of Law and to the enjoyment of basic es-Salaam seminar of the International human rights. They consider, however, that Commission of Jurists on Human Rights in their one-party system is better adapted to a One-Party State. In the introduction of their needs and political, economic and so­ the publication resulting from this seminar, cial circumstances and offers them a truer Niall MacDermot observes, "the experience form of democracy than would the West­ of the last 25 years has shown that the ern multi-party system”. Western type of parliamentary democracy Tanzania has a tradition of respect for in its full sense has survived in very fewthe Rule of Law, marred only by the wide­ Third World countries, and then usually spread use for many years of administrative only in countries with a very small popula­ (or “preventive”) detention. One need only tion, New forms of society have emerged, recall the creation by President Nyerere of many of them authoritarian, others of a an Investigation Commission to investigate more liberal nature. Perhaps the most inter­ torture and ill-treatment of prisoners. The esting of these is the one-party democracy results of this investigation led to the resig­ as developed by Tanzania and Zambia. nation of two ministers and two higher civil These countries have repeatedly declared servants who were in no way implicated their commitment to the principles of the directly in the treatment inflicted upon the suspects. President Nyerere stated that he states of emergency. accepted their resignation ‘with great sor­ The most important issue is the struc­ row’, in order to establish the principle of ture of the government. The principal con­ political responsibility in Tanzania. It is flict is between those who wish to see a also in Tanzania that for the first time in single central government and those, in par­ Africa the institution of an ombudsman ap­ ticular in Zanzibar, who want a consider­ peared in the form of a collegial board: a able degree of autonomy for the constitu­ permanent investigation commission direct­ ent parts of the federation and a weaker ly answerable to the Head of State. In these central union government. The Attorney- circumstances it is all the more disappoint­ General of Zanzibar and Chairman of Zan­ ing that Tanzania should have recently in­ zibar’s Law Reform Commission said in troduced a law, examined below, which se­ London recently that Zanzibar’s President, riously violates the principles of the Rule Sheikh Aboud Mwinyi Jumbe, who is also of Law. Vice-President of Tanzania, would “go all out for a new, loose federal system with strong governments for Zanzibar and main­ Constitutional Debate land Tanganyika and a third federal Tanza­ nian government with fewer powers”. Tanzania is at present engaged in a na­ Another matter worth mentioning is the tion-wide debate on the amendment of its question of legal aid to the poor, and in Constitution. The process has been inspired particular the rural poor, which has aroused by a desire to ensure a greater degree of interest in Tanzania. The Chief Justice, participation by the people at all levels. The Ndugu Francis Nyalali, has said that he three main issues around which the discus­would soon take up the matter with the sion focuses are the role of the National Tanzania Law Society, in the hope that Assembly (the parliament), the tenure of “barefood lawyer practice” would flourish office of the President, and the structure of to help peasants. the federal government (Tanzania being a These and many other issues have been federation of the islands of Zanzibar and discussed by the Congresses of the single Pemba and the mainland of Tanganyika). party, the Chama Cha Mapinduzi (Rally for At present 53% of the National Assem­ the Revolution) in 1981 and 1982, and a bly are executive appointees, which ensures special committee of the party is now scru­ a permanent majority for the government. tinising some 9,335 proposals from differ­ A legal seminar at the beginning of 1983 ent individuals and institutions. recommended that the majority should be composed of elected constituency repre­ sentatives to make it a more effective check Economic Sabotage on the executive. The debate on the tenure of the Presi­ The Party and the Government have at dency derives from Nyerere's declared in­ the same time been considering measures tention not to stand again in 1984 after his to face up to the mounting economic diffi­ 22 years’ presidency. Most people seem to culties resulting from various internal and prefer a maximum of two terms of five external factors. It will be remembered years. There are also recommendations for that at the end of 1979 Tanzania rejected an organ to advise the President on preven­ the economic reforms proposed by the In­ tive detention, and declarations of war and ternational Monetary Fund (IMF), which included currency devaluation, reduction tences of up to 15 years imprison­ in the growth of the public sector, loosen­ ment; ing of governmental control on imports (vi) excluded the normal rules of evidence and foreign investments, and liberalisation and entitled the Tribunal to receive of monetary controls. Moreover, the eco­ any evidence it thought fit to be re­ nomic crisis has worsened owing to the ceived ; most severe drought that Tanzania had (vii) excluded any right of appeal, other known in 20 years. than an appeal to the President of Among the measures adopted was a cam­ Tanzania against sentence. paign against ‘economic sabotage’, which led to the resignation of a number of higher A few days before this law was passed, civil servants and party leaders. the ICJ Secretary-General wrote to Presi­ On 22 April 1983 an Economic Sabo­ dent Nyerere urging its reconsideration and tage (Specific Provisions) Act 1983 was pointing out that in a number of respects it passed, and made retroactive to 24 March appeared to be in conflict with Tanzania’s 1983. It is to remain in force for one year, international obligations under the Interna­ unless prolonged for a further six months. tional Covenant on Civil and Political Among other provisions it Rights to which Tanzania is a party (e.g. retroactivity, absence of a right of appeal (i) gave the President power to establish against conviction). a special tribunal (made up of nine It was pointed out that experience in members presided over by a judge) to other countries has shown that where spe­ try crimes of “economic sabotage”; cial tribunals are created with exclusive ju­ (ii) authorised the President to order that risdiction to try particular classes of of­ all economic sabotage offences be fences, with no right of appeal, heard and determined by the Tribu­ nal; - the special tribunals tended to be lax (iii) defined “economic sabotage” to in­ and arbitrary in their application of the clude a number of existing economic law, knowing that they cannot be over­ crimes (e.g. exchange control of­ ruled ; fences, hoarding, dealing in stolen - it undermined the independence of, and goods, illegal trade practices, unlaw­ public respect for, the ordinary judicia­ ful acquisition of property, corrup­ ry, particularly where, as here, the spe­ tion) as well as a new offence defined cial tribunal is composed largely of non in the following vague terms: “an act lawyers. or omission ... which ... if done or omitted without lawful excuse and There is no doubt that crimes of corrup­ for a purpose prejudicial to the eco­ tion, black market dealing and other eco­ nomic safety or interests of the Unit­ nomic crimes are extremely serious for a ed Republic would or is likely to country such as Tanzania struggling to over­ damage, hinder or interfere with a come poverty. Nevertheless, it was submit­ necessary service or its operation”; ted, the creation of special courts was nei­ (iv) excluded any concurrent jurisdiction ther necessary or desirable to deal with the of the ordinary criminal courts for problem. If there was temporary conges­ such offences; tion of the courts, the matter could be re­ (v) gave the Tribunal power to pass sen­ solved by designating ad hoc temporary Commissioners from those lawyers qualified sentence (“The decision of the Tribunal to be appointed as judges. To erode interna­ in any proceedings before it shall be fi­ tional standards for defence rights and the nal and conclusive, and shall not be sub­ jurisdiction of the courts only served to un­ ject to review by any court or person in dermine confidence in the justice system. any capacity” (section 22). This appears On 8 July 1983 an Economic Sabotage to exclude even the Presidential power (Special Provisions) (Amendment) Act was of clemency or amnesty). passed, also made retroactive to 24 March 1983. So far from removing the conflicts Among the other amending provisions with Tanzania’s international obligations it was one excluding the possibility of bail or added to them by other provisional release from custody of accused persons (section 4). - excluding the right to counsel or other The prospects for a fair trial before a representative (“No person, other than special Tribunal of which the vast majority the accused person, by whatever title or need not be, and presumably will not be, designation known, and whatever the qualified judges, and which operates within position he holds in relation to the ac­ the procedures specified in the Act and cused person, shall have a right to ap­ Amending Act, can only be described as pear before the Tribunal and be heard remote. Moreover, the very existence of for the purposes of advocating the case such a Tribunal strikes at the independence for the defence of the accused person” of the judiciary and of the legal profession, (section 13)); and runs the risk of bringing the judicial - excluding even the right to appeal against system into contempt.

Uruguay

The plebiscite of November 1980, when restricts trade union rights, and is criticised the electorate rejected the draft Constitu­ by the ILO Committee on Freedom of As­ tion prepared by the military, can be re­ sociation, by international trade union con­ garded as marking the beginning of the federations and by the Uruguayan trades slow but gradual process of replacing the unions on the grounds that it violates ILO military regime, a process that has not yet Conventions 87 and 98 (to which Uruguay been completed. is a party), it nevertheless enabled the trade union movement to become active once again. The workers have organised them­ Trade Unions selves in a skilful manner by using the legal openings afforded to them by law 15,137. In May 1981, the government passed In a short time, they transformed them­ law 15,137 on Professional Associations, selves into a large and organised force, which regulates the organisation and activi­ which began to ask serious questions about ties of the trades unions. Although this law the economic policy of the regime and to call for urgent measures to deal with the are directly or indirectly connected with decline in wages and employment and the parties, institutions or organisations that economic crisis in general. The extent of are foreign or are connected with other their following is shown by the fact that states” (art. 10). In addition, it forbids all they managed to bring together more than political activity on the part of parties in 100,000 people in Montevideo to celebrate which there are persons who “have belong­ the 1st of May. This was the first demon­ ed to associations that have been declared stration of its kind permitted by the gov­ illegal by the competent authority”. The ernment in the last ten years. It was con­ competent authority is the Executive, act­ vened by the Inter-Union Workers’ Plenary ing by virtue of special powers granted by (PIT), which, in spite of comprising 130 the state of emergency in force since 1968. trades unions, is not officially recognised Consequently, parties such as the social­ by the government. ist, communist and Christian democrat par­ ties, those affiliated to the socialist interna­ tional and to the social democrat move­ Law on Political Parties ment, are forbidden to be active and even to exist. The socialist and communist par­ In June 1982, the government approved ties have been banned by law since 1973 the “Organic law on Political Parties” and their militants continue to be persecut­ which partly restored political activities ed and punished under the terms of law that had been in suspension and subject to 14,068 on state security. persecution since the 1973 coup d’etat. This was the situation at the time of the However, the law is clearly anything but “internal elections” of November 1982 democratic in that it only allows three ex­ when the electorate had to vote by secret isting parties to be active - the Colorado, ballot for members of the National Con­ theNacional (Blanco) and the Union Ci'vica ventions — governing bodies — of the three - to which should be added any new par­ authorised parties. Proscribed citizens, who ties that conform to the requirements of included left-wing militants as well as vari­ the law (art. 57). This law severely restricts ous leaders of the authorised parties, could the right of political association. It main­ not stand for office. The Convention mem­ tains in force Institutional Act No. 41 of bers who were elected then nominated the September 1976 and the proscription from directorates or executive bodies of their re­ political activity of 11,000 Uruguayan citi­ spective parties. zens for 15 years. It also forbids all politi­ The political campaign before these elec­ cal activity by parties “which, by theirtions was marked by persecutions and arbi­ ideology, principles or denomination, or trary arrests. Five leaders of the National their mode of activity, indicate that they Party (Blanco) and one from the Colorado

1) The “Institutional Acts” are a new category of legislation that had not been envisaged in Uruguayan law. They come into effect simply by Executive Decrees, known as Constitutional Decrees, and hence approved with far fewer conditions and with the intervention of a Smaller number of author­ ities than are required for the adoption of an ordinary law. They nevertheless are utilised to amend the Constitution without following the procedure laid down in it for that purpose, and above all without the submission of the amendment to the decision of the electorate by plebiscite, as is re­ quired in the constitution. The 14 Institutional Acts approved so far have been based explicitly on the doctrine of national security, a concept which was incorporated only after the military coup d ’etat of June 1973. party were arrested and tried by military dialogue, that the basic rights of the inhab­ courts on the grounds of “insulting the itants of the country were not a proper Armed Forces” in speeches made in party subject for compromise, that the Armed meetings. A large number of meetings and Forces had shown a complete lack of flex­ events were prohibited. ibility, and that the government had abused The result of the internal elections was the patience of the political parties, all of a defeat for the candidates supporting the which was incompatible with the continua­ regime and an unambiguous expression of tion of the dialogue. the people’s desire to return as soon as pos­ sible to a democratic way of life. The votes cast for the lists that were most strongly Decrees of 2 August 1983 opposed to the regime, added to the blank votes cast by banned left-wing groups, rep­ On this date, the government adopted resented 83% of the total vote, while the two new repressive and particularly serious candidates supporting the regime obtained measures in response to the firm attitude only 17%. This was the second electoral displayed by the parties, measures which reverse suffered by the regime. call into question the “military time-table" (the name by which the military plan for a return to a civilian government is known). Dialogue Between Politicians The first measure was an Executive De­ and Military cree, which again prohibited all public po­ litical activity as well as the dissemination, On 13 May 1983, a “dialogue” was by any means whatsoever, of any news or opened between the military and the exec­ commentaries referring to political activi­ utives of the three authorised parties. The ties or matters prohibited by this decree. generals demanded the approval of a new This meant the suspension of the meagre constitutional text as the prerequisite to political activity that had been authorised the re-establishment of democracy. In this some months earlier in preparation for the text an attempt was made to reintroduce dialogue with the military, and the imposi­ many of the ideas that were embodied in tion of complete censorship on these mat­ the text which was rejected in November ters. 1980, viz., the maintenance of political The second measure was the approval, bans, the right of military courts to try po­ on the same day, of Institutional Act No. litical crimes committed by civilians, re­ 14, which authorised the Executive to sanc­ strictions on the right to strike and the au­ tion, by the loss of their political rights for thorisation of long periods of incommuni­ two to fifteen years, citizens who: cado detention of persons arrested on sus­ picion of having committed a political of­ a) violate or have violated the law of June fence. An attempt was also made to perpet­ 1982 governing the activities of political uate, through the constitution, the Armed parties; Forces’ control over governmental institu­ b) have been tried since 12 June 1976 or tions and the people in general. may be tried in the future for crimes The three parties were agreed in oppos­ against the nation (i.e. political offences) ing these demands. They broke off the dia­ or against the public administration. logue on 5 July 1983 on the grounds that “Tried” signifies persons against whom it was a military monologue rather than a penal proceedings have been instituted, whether or not the trial ends in a stay of public holiday) in order to meet together proceedings or the discharge of the pris­ in their homes, parishes and clubs. oner on the grounds that he has been SERPAJ was created in 1981 to pro­ proved innocent; mote and safeguard human rights. Its activ­ c) by their disorderly behaviour, acts or ities included denouncing torture and ill- omissions disturb the peace and public treatment and the situation of political order. prisoners, providing legal aid for them and financial assistance for their families, These three premises involve serious searching for persons who had “disappear­ sanctions of a penal nature, applied by ad­ ed”, assisting and advising trades unions ministrative means. As the measures adopt­ and their members, helping the homeless ed under Institutional Act No. 14 are con­ and the marginal population, teaching sidered for all purposes “acts of govern­ adults to read and write and publicising ment” (Art. 1), they cannot be questioned questions of human rights. It very soon be­ or disputed before the courts, and there is came extremely active and was indeed the no recourse whatsoever against them. More­ only body to succeed in organising itself over, (a) and (b) are retroactive, and thus and working — despite the repression - in contravene a basic principle of Uruguayan defence of human rights3. law. Premise (c) is so vague as to permit the Its relations with the government were government to penalise anyone it wishes by never good but deteriorated drastically the loss of his or her political rights. when SERPAJ touched on highly sensitive Institutional Act No. 14 continues and areas of government policy as, for instance, amplifies the effects of Institutional Act when it disseminated a document on the No. 4, which was enacted in September torture in June 1983 of a group of more 1976 and on the basis of which more than than 20 young students who were accused 11,000 cases of political proscription have of being militant communists, or when it been decreed in a country with fewer than denounced the treatment as hostages of three million inhabitants. nine Tupamaro leaders, who have been kept for ten years in almost complete isola­ tion in various military units and subjected Human Rights Organisations to inhuman and destructive treatment. The fast and the general mobilisation it brought Ten days after the decrees, on 12 Au­ about lit the fuse. On 25 August, their pre­ gust, several members2 of the Servicio Paz mises, which had already been surrounded y Justicia (SERPAJ-URUGUAY) began a by the police and deprived of running water fast which was to last until 25 August, on and electricity, were invaded and the occu­ which day the people were asked to reflect pants expelled. Early in September, the on the situation of the country, refraining government approved a decree by virtue of from all non-essential activities (it was a the special powers granted under the state

2) The Jesuit Fathers Luis Perez Aguirre and Jorge Osorio and the Protestant Pastor Ademar Olivera. 3) The families of political prisoners were always dealt with harshly when they tried to organise them­ selves. Some were tried in the military courts for “helping a subversive association” in denouncing the conditions of imprisonment. Finally, in July 1982, with the sponsorship of SERPAJ, they sub­ mitted a petition for a general amnesty to the government, which was later taken up by the trades unions and political parties. The government has not replied to the petition. of emergency, prohibiting indefinitely all the part of the security services, ending activity on the part of SERPAJ and autho­ with scores of wounded and more than 200 rising the seizure of its property, assets and under arrest. premises. On 8 October, the two principal parties, The decree expressly bases iteslf on the the Blanco and the Colorado, made a very assumption that the body in question main­ firm public statement, associating them­ tains links with “subversive organisations” selves with the people’s protest and calling without any supporting evidence or partic­ on the military to take concrete steps that ulars. It goes on to state that SERPAJ un­ would give the plan for returning to a con­ dertook a “mixture of religious and typi­ stitutional regime and the rule of law some cally political activities” which “creates credibility, and put an end to political per­ confusion”. secution while restoring public freedoms. It seems clear that the elections which have taken place in Argentina and the es­ Protests by the People tablishment in that country of a democrat­ ic government on 10 December will play a In the last few months, after the inter­ positive and significant part in the restora­ ruption of the politico-military dialogue, tion of democracy in Uruguay in view of the decrees of 2 August and the muzzling the closeness of the two countries and the of SERPAJ, a widespread movement of important ties that link them. protest has begun among the people, and is expressing itself with increasing strength and frequency in such ways as simulta­Constitutional and neously banging pots and pans through Economic Situation Montevideo and in several other towns, turning off thelights in a co-ordinated fa­ The decade of military rule, during shion for about 15 minutes, street demon­ which the Armed Forces assumed complete strations in different parts of the town, control over the political, economic and which have brought together tens of thou­social life of Uruguay5, have plunged the sands chanting slogans against the military country into a profound crisis. The consti­ and calling for a return to democracy. For tution has not been respected and has been example, “national days of protest” were arbitrarily amended by 14 Institutional held on 25 August, 25 September, 23 Oc­ Acts which have altered the constitutional tober, 9 November and 30 November4 structure of the state; since 1968 a state of 1983. These events were sometimes orga­ emergency has been in force; Parliament nised by the political parties - both banned has been closed since June 1973. a General and authorised — and sometimes by the PIT has been made President of the Republic; trades unionists or by university students. the political parties and trades unions have During the protest of 9 November 1983, in been forbidden to be active; the right to addition, all activities ceased nation-wide strike has been rescinded; the rights of for a few minutes, the street demonstration meeting and assembly have been consider­ was stopped by violent repressive action on ably curtailed, and more than 11,000 citi-

4) The protest held on 30 November was the most important one in which about 400,000 people par­ ticipated in Montevideo. 5) See ICJ R eview , Nos. 24 and 27, and Bulletin of the CIJL, No. 9. zens have been proscribed and prevented sed on a massive scale and far-reaching from exercising their political rights. Tor­ changes have been made in education, the ture has been practised repeatedly and sys­ curricula being altered in order to orient tematically and has led at times to the them ideologically. death of detainees; the treatment in the From the economic point of view, the military detention establishment is inhu­ application of a highly liberal model has man, as the UN Human Rights Committee had severe negative effects and worsened has recognised on various occasions when the crisis considerably. National industry is considering communications; the judiciary partly paralysed, and the rate of unemploy­ has lost its independence, and military ment is 16% according to the official fig­ judges have replaced civilian judges in try­ ures and 25% according to the unions. In ing civilians accused of infringing state se­ the first nine months of the year, inflation curity; habeas corpus has never been grant­reached 40% and the external debt is 4,000 ed by the military courts; detainees have million dollars, having increased six times sometimes been held incommunicado for over during the last decade. In the same months and the rights of defence during period, the purchasing power of salaries has trial have been restricted. The press has decreased by 55%. been severely censored; more than 150 de­ Against all this, a vigorous wave of pro­ crees have been issued closing newspapers test has now arisen, led by the political par­ and publications and suspending radio ties, the trades unions and the university broadcasts6 without any judicial interven­ students, who are calling for the return of tion. State employees regarded as oppo­ the military to their barracks, the immedi­ nents of the government, including teach­ ate restoration of democracy and respect ers and university staff, have been dismis­ for the rule of law.

6) In September 1983, the weeklies “Aqui” and “Opinar” were closed for a month on the grounds of disturbing the peace and public order. In both decrees (16 September) whose texts are almost iden­ tical, they are censured for having printed news of a trade union day of protest that was being plan­ ned because its petitions included political demands and in particular a call for amnesty. COMMENTARIES

Discrimination in Employment Special Studies by the ILO

In June 1979, the ICJ published an ar­c) employers’ organisations; ticle in its Review No. 22 which described d) workers’ organisations. the operation of a number of procedures established by the ILO to monitor the ap­ In this way, the tripartite character of plication of its agreements. the ILO is respected. This article examines another kind of When the Director-General receives a re­ procedure involving situations of discrimi­ quest of this kind, he must consult the gov­ nation in employment and occupation, ernment in whose jurisdiction the problem which has been prohibited by ILO Conven­ arises and, if the government concurs, the tion No. Ill of June 1958. In 1973, ma­ study will be undertaken in consultation chinery was set up by the ILO Governing with it. If the request is made by the very Body for carrying out “special studies” government in whose jurisdiction the diffi­ prepared by experts appointed by the Di- culties arise, no procedural problem exists. rector-General of the ILO, to verify and But in what cases will a government ask for evaluate allegations of violations and to a study to be made of a situation in its own seek solutions. territory? One such case might be if the The first requirement is the existence of presence of external and impartial observ­ a pattern of violations — and not isolated ers would help it to dissipate internal diffi­ cases. Discrimination is taken to mean any culties and to demonstrate that any com­ distinction, exclusion or preference made plaints levied against it are baseless. An­ on the basis of race, colour, sex, religion, other reason might to be dispel concern ex­ political opinion, national or social origin, pressed at the international level. which has the effect of nullifying or im­ It is more usual, however, for the re­ pairing equality of opportunity or treat­ quests to come from the other sources ment in employment or occupation. Spe­ mentioned, for example, when a govern­ cial measures of protection for certain ment claims that its nationals working in types of workers are not deemed to consti­ another State are discriminated against. tute discrimination. The admissibility of the request depends Requests for “special studies” may come on whether it indicates the existence of a from four distinct sources: clear and direct link between the interests of the requesting government and the alleg­ a) a member state of the ILO, with respect ed discrimination. Unless it does so, the re­ to questions that arise within its juris­ quest will not be acted upon. diction; Requests from employers’ or workers’ b) a member state, with respect to ques­ organisations must emanate from a national tions arising in another member state; organisation directly concerned with the situation, from international organisations for government officials, although the Con­ having consultative status with the ILO, orstitution in force guaranteed tenure in or­ from other international or regional organi­ der to safeguard them against political per­ sations, always provided that the questions secution. It also authorised the dismissal of directly affect or concern their national af­ officials from the public administration on filiates. the grounds of improving the service or of The Director-General, who will have be­ public interest without any obligation to fore him a report by the ILO Committee justify the dismissals, and such dismissals on Discrimination, may ask the requesting are deemed to be ordered by government party and the State concerned to provide decision and cannot be reviewed at any ju­ further information on the matters under dicial level. The application of the Act consideration. If the request is regarded as made it possible for a large-scale political reasonable, and provided that the govern­ and ideological purge of government em­ ment concerned gives its consent (or the ployees to take place, when such employees request has come from it), the Director- were known to be active members of unions, General will lay down the terms and scope of political parties in opposition to the gov­ of the study, after consulting the parties ernment or of political parties proscribed concerned. by the government, even if their activities The study will be carried out either by dated back to the time when they were the ILO itself or by independent experts permitted by law. Tenure of office thus no from different regions of the world, selec­ longer depended on merit or dedication ted from an existing list. but on ideological beliefs. In this way, rea­ On the basis of the findings of the study, sons based purely on ideology, or on pol­ or on the background information available itical or trade union affiliation underlay if the government has not agreed that the others claiming to be inspired by the inter­ study should be carried out, or if for any est of improving the service or enhancing reason the study could not be finished, the efficiency. Committee on Discrimination will submit The Uruguayan government, in addition the recommendations that it deems appro­ to denying the allegations made about In­ priate to the Governing Body, to which it stitutional Act No. 7, refused to give its is answerable. consent to a study on the grounds that In 1982, a request was made for a study Uruguay had not ratified Convention No. on Uruguay. It came from the Convention I ll concerning Discrimination in respect Nacional de Trabajadores, a trade union of Employment and Occupation and there­ confederation (in exile) which had been fore was not bound by its provisions, as in­ declared illegal by the military government dicated in article 8 of the Convention, and in 1973 and which, at the time it was dis­ did not fall to be monitored by the ILO. solved and banned, consisted of more than The government stated that “the respect 80% of the unionised Uruguayan workers. due to the general principles contained in The CNT pointed out that Institutional Act the Constitution of the ILO should not be No. 7, approved by thede facto regime on used as a pretext to require Member States 27 June 1977, constituted a legal basis for to apply conventions which they have not discrimination in matters of employment ratified, as in the case of Uruguay and Con­ and occupation on the grounds of political vention No. 111”. opinion. Institutional Act No. 7 had abol­ Although the study could not be under­ ished the guarantee of security of tenure taken owing to the objections of the Uru­ guayan government, an interesting legal of the objectives established in the ILO point had been raised. The Committee on Constitution, it was not expected only of Discrimination, in a report of 7 February the countries that had ratified Convention 1983 (GB.222/CD/2/2) referred to the No. Ill, but could be required of all ILO views expressed on several occasions by the Member States. It also considered that the Committee of Experts on the Application special studies procedure was applicable to of Conventions and Recommendations in all Member States. dealing with questions of discrimination. The position taken by the Committee The Committee took the view that as on Discrimination is an important premise protection against discrimination on the for the development of international law. grounds of political opinion formed part

UN Sub-Commission on Discrimination and Minorities

The 36th Session of the UN Sub-Com- ing group is to study next year the note to mission on Prevention of Discrimination be prepared by the Secretariat and the Sub- and Protection of Minorities was held in Commission suggested that the members of Geneva from 15 August to 9 September, the proposed working group should attend 1983. the 1985 Session of the Commission on Mr. Kurt Herndl Director, UN Centre Human Rights, so as to have an exchange for Human Rights, in his opening statement of ideas with the members of the Commis­ recalled the Commission on Human Rights’ sion. resolution (1983/22) in which it had ex­ pressed its belief that it would not be ap­ propriate for the Sub-Commission to take High Commissioner decisions affecting its own status, role and for Human Rights competence. Following a review of its working meth­ This year the members at the request of ods and future work, the Sub-Commission the Commission on Human Rights again called on the Secretariat to prepare a back­ discussed the establishment of a post of ground note with an outline of a five year High Commissioner for Human Rights. Dif­ programme of work. A five member work­ fering views were expressed. One was that the implementation of human rights rested Elimination of Racial Discrimination with States and establishment of such a post would run counter to the UN Charter The Sub-Commission recommended that based on cooperation between States. An­ the Commission authorize Mr. Eide to carry other was that the proposed High Commis­ out a study on the achievements made and sioner would not implement human rights obstacles encountered during the first de­ but urge, help and advise states with regard cade for action to combat racism and racial to implementation. Further, establishment discrimination, with a special emphasis on of such a post would lead to a progressive the progress made between the first and absorption by his office of the majority of second world conferences on racism. It also existing special procedures. The resolution recommended that the Commission adopt containing the Sub-Commission’s detailed a resolution condemning Israel for its con­ proposals for the post of a High Commis­ tinued occupation of Palestinian territories sioner for Human Rights was adopted by and its persistence in developing colonisa­ 16 votes in favour, three against and three tion of these territories, and call upon Israel abstentions. This is a very positive develop­ to withdraw immediately from such terri­ ment since a comparable resolution last tories. year obtained only a single-vote majority. The resolution suggested that if the post is established the High Commissioner for Hu­ Human Rights Violations man Rights should, The Sub-Commission recommended the - Carry out specific mandates and tasks appointment by the Commission of Special assigned by the General Assembly, the Rapporteurs for Iran and Afghanistan. ECOSOC and the Commission on Hu­ It proposed that the Rapporteur on Iran man Rights. should study the reports of serious viola­ — Initiate direct contacts with govern­ tions of human rights, particularly the alle­ ments whenever necessary to safeguard gations of summary and arbitrary execu­ or restore respect for human rights. Such tions, torture, detention without trial, reli­ contacts should be confidential. gious intolerance and the lack of an inde­ — Should report annually to the General pendent judiciary. Assembly, ECOSOC and the Commis­ On Afghanistan, it proposed that the sion on Human Rights. Special Rapporteur examine the human - Should give special attention to ensure rights situation with a view to formulating effective enjoyment of all rights bearing proposals which could contribute to the in mind that all human rights and funda­ protection of human rights of all residents mental freedoms are indivisible and in­ of the country, before, after and during the terdependent. withdrawal of all foreign forces. On Chile it deplored the fact that the Further the Sub-Commission proposed peaceful demonstrations undertaken by that the bureau of the Commission on Hu­democratic groups have been brutally re­ man Rights should act as an advisory Com­ pressed causing loss of many lives, and mittee to the High Commissioner, and that urged the Chilean authorities to put an end the High Commissioner should be elected to all repressive measures. by the General Assembly for a period of five Concerning El Salvador it recalled the years on the principle of regional rotation. General Assembly resolution expressing concern about the prevailing climate of re­ consider at its next session the question of pression and insecurity, and expressed the preparing a thorough study on human view that the situation of armed confronta­ rights and disability. tion must be considered as falling within the scope of Common Article 3 of the Geneva Conventions of 1949 and the Pro­ The Effects of Gross Violations tocol II to these Conventions. The Sub- on Peace and Security Commission suggested that the Special Rapporteur should give attention to the During the discussion on this item, respect or violation of humanitarian law in many members expressed the view that it armed conflicts. was a complex subject and should be exam­ On Guatemala it expressed its deep con­ ined in greater depth before arriving at any cern that the persistent and systematic na­ conclusions. Speaking on this item Mr. ture of the violations of human rights haveArtucio, an ICJ Legal Officer, drew atten­ made impossible the effective exercise of tion to the existing situation in central economic, cultural, civil and political rights. America as one where violations of human It called upon the Government of Guate­ rights give rise to a risk of war between the mala to refrain from forced displacement countries of the region, threatening both of the Indian communities and their con­ peace and international security. finement in strategic hamlets, as well as A resolution pertaining to Nicaragua massacres, scorched earth policies and recommended that the Commission express forced disappearances. its vehement concern about the situation On East Timor, recalling its earlier reso­ of undeclared war threatening the future of lution which deplored the fact that the the country. Another resolution requested gravity of the situation was not being given the Secretary General to prepare an analy­ sufficient attention by a large part of the sis on the subject of ‘the effects of gross international community, it recommended violations on peace and security' and to that the Commission continue to consider present it to the Sub-Commission at its with attention the evolution of the situa­ next session. tion of human rights and fundamental free­ doms in East Timor. On Sri Lanka, many members and The Administration of Justice and NGOs, including the ICJ, expressed con­ the Human Rights of Detainees cern about the events in Sri Lanka at the end of July. A resolution expressed con­ The Working Group on detention made cern about the recent communal violence the following recommendation, which was and requested the Secretary-General to in­ adopted by the Sub-Commission, vite the Government of Sri Lanka to sub­ mit information on the recent communal - to include an agenda item entitled dero­ violence and to submit it to the Commis­ gations under Article 4 of the Interna­ sion. tional Covenant on Civil and Political The Sub-Commission adopted a resolu­ Rights, and to submit to the Commis­ tion concerning the human rights of dis­ sion for its consideration an annual re­ abled persons in which, commenting that port on proclamations, continuances or human rights violations continue to be a terminations of states of emergency with substantial cause of disability, it decided to reliably attested information on com­ pliance with the internal and interna­ port on the ‘Principles Guidelines and Guar­ tional rules governing states of emer­ antees for the Protection of Persons De­ gency. tained on Grounds of Mental Ill-Health or Suffering from Mental Disorder7. She con­ Other resolutions: cluded that there is an imperative need for action, in particular by states, for the pro­ - expressed the conviction that unac­ tection of the fundamental freedoms, hu­ knowledged detention of persons, what­ man and legal rights of the mental patient. ever their condition, is inadmissible con­ Of her 21 basic recommendations the first duct on the part of any state member suggests that the governments should adapt and requested the Working Group on their laws, if necessary, to the draft body Detention to prepare a draft Declaration of principles, guidelines and guarantees for against Unacknowledged Detention of the protection of the mentally ill, which Persons and to submit it at its next ses­ she appended to her report. Mrs Daes refer­ sion; red in her report to the ‘remarkable’ contri­ - requested the Commission to invite the bution of the ICJ and the International As­ Committee on Crime Prevention and sociation of Penal Law, which was reflected Control to consider how the question of in her draft principles. restraints on the use of force by law en­ A Working Group established to exam- - forcement officials and military person­ ine the draft body of principles has not yet nel might be effectively examined by completed its work. the seventh United Nations Congress on The Sub-Commission recommended that the Prevention of Crime and the Treat­ Mrs Daes’s study should be published and ment of Offenders; given the widest possible distribution. - taking note of the existence of a state of siege on a permanent basis in Paraguay recommended the Commission to invite Indigenous Populations the Government of Paraguay to consider ending the state of siege in order to en­ For the second year the pre-sessional courage the promotion and protection Working Group on Indigenous Populations of human rights; was attended by a large number of indigen­ - expressed alarm at the growing number ous people and organisations. The Sub- of deaths of political detainees in South Commission endorsed a plan of action un­ Africa and strongly condemned the der which the Working Group will deal in campaign of repression, detention and 1984 with the problem of land and other persecution of South African patriots; natural resources, and with the definition - requested Mr. Joinet (France) to prepare of indigenous populations. The following a general study of a technical nature on four sessions will consider the amnesty laws and their role in the safe­ guard and promotion of human rights. - right of indigenous populations to devel­ op their own culture, traditions, lan­ guage and way of life, including the right Protection of Persons Detained to freedom of religion and traditional on Grounds of Mental Disorder religious practices; - right to autonomy and self-determina­ Mrs Erica Irene Daes introduced her re­ tion, including political representation and institutions; the duty of indigenous view to promoting full respect for human populations, as of all others, to respect rights. universal human rights; - right to education; - right to health, medical care and other Slavery and Slavery like Practices social services; - right to legal assistance and protection The Working Group on this subject re­ in administrative and judicial affairs; ceived extensive information from the ICJ - right to association; and other non-governmental organisations - right to social security and labour pro­ on bonded labour, exploitation of child la­ tection; and bour and traffic in persons and the exploi­ - right to trade and to maintain economic, tation of the prostitution of others. technological, cultural and social rela­ In its report it requested that its name tions. should be changed to the ‘Working Group Against Slavery, Apartheid, Gross Human Exploitations and Human Degradation’. The NIEO and Though many members referred to it in the the Promotion of Human Rights Sub-Commission no action was taken on the suggestion. The final report of Mr. Raul Ferrero on Resolutions under this item recom­ the NIEO and Promotion of Human Rights, mended the Commission and the Preliminary report of Mr. Eide on the Right to Adequate Food as a Human - to request competent UN bodies to of­ Right were discussed. fer states coordinated, legal, technical, Mr. Ferrero stated that the present eco­ administrative, educational, financial nomic order is a serious obstacle to the re­ and other practical assistance to elimin­ alisation of human rights and concluded ate conditions conducive to slavery and that in the establishment of a new interna­ slavery like practices, and tional economic order full respect for hu­ - to call upon the Government of Iran to man rights must be seen both as an end in cease immediately the use of children in itself and as an essential means. the armed forces, especially in time of The Sub-Commission in referring the re­ war. port to the Commission suggested that a study should be undertaken on the impact on human rights of the policies and prac­ Conscientious Objection tices of the major international financial in­ to Military Service stitutions, most notably the International Monetary Fund and the World Bank. Mr. Eide and Mr. Mubanga Chipoya pre­ Another resolution requested the special sented their final report on the ‘Question rapporteur Dr. L.M. Singhvi to give consid­ of Conscientious Objection to Military Ser­ eration in his study on the ‘Independence vice’. They recommended that States should of the Judiciary and the Legal Profession’ recognise by law the right of persons who to the most appropriate means by which - for reasons of conscience or profound the international community could con­ conviction arising from religious, ethical, tribute to strengthening legal institutions, moral, humanitarian or similar motives — especially in developing countries, with a refuse to perform armed service to be re­ leased from the obligation to perform mili­ dations to the ECOSOC. tary service. The Chairman of the Working Group on As a minimum, persons should have a the Encouragement of Universal Accept­ right to be released from the armed service ance of Human Rights was asked to pre­ if they consider that their service is likely pare a discussion paper analysing the type to be used to enforce apartheid, to occupy of difficulties preventing states from be­ illegally a foreign territory, to participate coming parties to the international instru­ in actions amounting to or approaching ments of human rights. genocide, in situations contributing to gross The Sub-Commission proposed as Spe­ violations of human rights, or in situations cial rapporteurs: where weapons of mass destruction out­ lawed by international law may be used. — Mrs Odio Benito to prepare a study on The report has also recommended that the Elimination of Religious Intoler­ states should provide alternative service for ance. objectors including social work, or work - Mr. Mubanga Chipoya to prepare an for peace, development and international analysis of current trends and develop­ understanding. The Sub-Commission trans­ ments in respect of the right of every mitted the report to the Commission re­ one to leave his country and return, and questing it to make appropriate recommen­ to be able to enter other countries.

Human Rights Committee

It is with sadness and a deep sense of Reports Under Article 40 loss that we report the death of two mem­ bers of the Human Rights Committee, During its 17th, 18th and 19th sessions1 Abdoulaye Dieye (Senegal) in March 1983 the Committee considered the reports of and Leonte Herdocia Ortega (Nicaragua) Australia, Austria, France, Iceland, Leba­ in October 1983. Both made valuable con­ non, Mexico, Nicaragua and Peru. There tributions to the promotion and protec­ are at present 77 States parties to the In­ tion of human rights and to the work of ternational Covenant on Civil and Political the Committee. Special ceremonies were Rights and 31 to the Optional Protocol, held by the Committee to honour their and 15 States have made declarations un­ memories. der article 41. The most recent States to

1) These sessions are covered in the Committee’s annual report to the General Assembly contained in General Assembly Official Records, 38th session, Supplement No. 40 (A/38/40). have acceded to the Covenant and the Op­ Also there is a great deal of pertinent infor­ tional Protocol are the Congo and Luxem­ mation in the documents submitted to and bourg. the reports of such bodies as the UN Com­ The members of the Committee contin­ mission on Human Rights and its Sub-Com­ ue to emphasise to each of the delegations mission. appearing before them that they are seek­ As observed to the Committee by repre­ ing a constructive dialogue with the States sentatives of Yugoslavia, several requests parties concerning the problems being for information made by members of the faced in the implementation of the rights Committee are answered by information in protected by the Covenant, and that the reports filed under other reporting proce­ Committee’s questions should not be view­ dures. Such a compilation would also be in ed in any sense as an attack on a particular keeping with the recommendations made State party. The Committee recognises that by the Third Committee for better coordi­ every country faces problems in the imple­ nation between the various organs concern­ mentation of the Covenant. Most of the ed with human rights. States parties have accepted the questions Although requesting that every State in this spirit. Several have indicated their party report contain a discussion of the rel­ willingness to have the Committee identify evant provisions of its constitution, laws those areas where additional legislation is and the pertinent court decisions, the Com­ needed or where changes in legislation mittee continues to stress that this alone is might be necessary to bring national legisla­ not sufficient and that “practices” must tion into conformity with the Covenant. also be described, particularly when they When members of the Committee have ex­ impede full implementation of the rights pressed concern about particular legislative protected by the Covenant. provisions, most State party representatives Information frequently requested by the have indicated that they would relay theseCommittee in its questioning of the States concerns to their governments. parties includes: In order to ensure the effectiveness of this process, the Committee needs addi­ 1. The steps taken to publicise the Cov­ tional assistance from the UN Secretariat. enant and the State party’s appear­ The UN Centre for Human Rights has un­ ance before the Committee; dertaken to review the second round peri­ 2. The status of the Covenant in nation­ odic reports, make a comparative analysis al law, the methods chosen for imple­ with the initial reports, and note whether mentation of the rights guaranteed changes recommended by the Committee by the Covenant and the ways in have been implemented. This will be very which citizens may vindicate their helpful to the Committee but it is submit­ rights under the Covenant; ted that more is needed. Relevant docu­ 3. Data available to show the progress ments concerning each of the States parties achieved in the enjoyment of human need to be collected and studied. Numer­ rights; ous reports are filed with the UN each year 4. Equality between the sexes, rights of by the member states under various con­ minority groups and the treatment of ventions such as the Convention on the indigenous populations; Elimination of Racial Discrimination and 5. Types of punishments used in crimi­ the Convention on the Elimination of All nal cases and prison conditions; Forms of Discrimination Against Women. 6. Ability of those imprisoned for rea­ sons other than the commission or October 1983 session and explained that El the alleged commission of a crime to Salvador thought it desirable to wait until challenge their continued detention, the proposed constitutional and consequent e.g. those detained on grounds of legislative changes had been made before mental ill health or incapacity; submitting its report. However, the repre­ 7. The manner in which freedom of ex­ sentative did agree to a dialogue with the pression is guaranteed and any restric­ Committee about recent events in the coun­ tions placed on the exercise of this try. This was considered to be a preliminary right; discussion to be continued when the report 8. Guarantees of the right to freedom is filed during 1984. of association, in particular, the abili­ Chile continues to refuse to submit sup­ ty of trade unions to organise; plemental information claiming it has been 9. What has been done by the State par­ singled out for special treatment. ty to further the right of peoples to Consideration of Guinea’s report has self-determination; been postponed four times due to that 10. The administration of justice, includ­ country’s failure to respond to the Com­ ing constitutional provisions and le­ mittee's request that a representative be gislation that guarantees the indepen­ present during the consideration of its re­ dence of the judiciary, the composi­ port. In July 1983 the Committee decided tion and the jurisdiction of the courts; to consider the report during its October 11. What is being done to ban propagan­ session, even if a representative did not ap­ da for war and advocacy of national, pear, as proved to be the case. The Com­ religious or ethnic hatred; mittee decided to send copies of the sum­ 12. Legislation and constitutional provi­ mary records reflecting its discussion to the sions concerning emergency powers. State party. Apparently the Guinean repre­ sentative in New York later contacted the In addition all States parties are asked Secretary-General’s office and indicated to be ready to discuss recent events within that Guinea wished to fulfil its obligations the country. under the Covenant and stated it was in need of technical assistance to do so. The Committee has included in its letter for­ Late Filing of Reports warding the summary records an offer of asistance to the State party. Late filing of reports continues to be a problem; Zaire the Dominican Republic and Trinidad and Tobago are the most in Third Committee Consideration default. Informal consultations have taken of the Annual Report place with representatives of Zaire and Tri­ nidad and Tobago, but thus far their re­ The question of technical assistance to ports have not been filed. The Dominican States parties was discussed during the Republic has not responded to the Com­ Third Committee’s consideration of the mittee’s request for consultations. Committee’s annual report. This issue has El Salvador has also been tardy in filing also been of concern to the Committee, its report. An invitation was sent to that particularly in view of the increasing num­ State party to meet informally with the ber of conventions requiring reports. Some Committee. A representative attended the countries do not have the resources to pro­ duce the reports or supply requested infor­ and the Democratic People’s Republic of mation in the necessary detail. Korea are to be considered at the March The Third Committee also discussed the session of the Committee. If it proves im­ need for greater coordination among the possible for one or more of these countries various UN organs concerned with the pro­ to appear, then the report(s) of either Pa­ tection and promotion of human rights. nama, Kenya or Venezuela will be consid­ Several delegations suggested that the ered. Centre for Human Rights might bring to­ gether representatives from the various or­ gans for consultation. The Assistant Secre- General Comments tary-General advised the Committee at its July session that steps were being taken in After extensive debates the Committee this direction, and that “financial resources adopted general comments on articles 19 permitting” the Centre would examine the and 20. The divergence of opinions expres­ possibility of holding consultations with sed in the discussions caused some mem­ the chairpersons of the relevant organs. bers to suggest that it might be appropriate for the Committee to take a vote on the proposals and thereby break with the tradi­ Proposals for Steps to Be Taken tion of taking decisions by consensus. After a State Party’s Declaration Doubts were expressed about the advisabil­ of a State of Emergency ity of doing this, since it is believed that the Committee’s comments have more Of concern to some members of the weight and effect when they are issued on Committee is the failure to take a decision the basis of a consensus. The majority were on the steps to be taken when the Commit­ opposed to changing this practice and in­ tee becomes aware of a declaration of a tensive discussions during and after sched­ state of emergency by a State party. Two uled meetings eventually resulted in a con­ proposals are pending, and although some sensus on the general comments. discussion has taken place, no agreement Article 19 protects the rights to freedom has been reached. It is to be hoped that of opinion and expression. With respect to this issue will be resolved during the com­ the right to “hold opinions”, the Commit­ ing year, particularly in light of its impor­ tee noted that it is a right “to which the tance and the active interest in this ques­ Covenant permits no' exception or restric­ tion of other UN organs such as the Sub- tion” and stated that it would welcome in­ Commission on Prevention of Discrimina­ formation from States parties concerning tion and Protection of Minorities2. the right. As to freedom of expression, the Committee reminded the States parties that this right “includes not only freedom Forthcoming Reports to ‘impart information and ideas of all kinds’, but also freedom to ‘seek’ and ‘re­ The reports of Gambia, India, Egypt ceive’ them ‘regardless of frontiers’ and in

2) This year’s Resolution 1983/30 of the Sub-Commission is discussed in the article on the Sub-Com­ mission in this issue. The resolution proposes that reports be prepared every year by the Secretariat listing the countries which have declared or terminated states of emergency during the previous year and outlining the international and national rules concerning such declarations. whatever medium, ‘either orally, in writing the right to freedom of expression. The or in print, in the form of art, or through Committee noting this argument has re­ any other ‘media’ of one’s choice”. The sponded by stating that the required pro­ Committee went on to state that not all hibitions are fully compatible with the right State parties had provided information con­ to freedom of expression contained in arti­ cerning all aspects of the right, and noted cle 19, “the exercise of which carries spe­ that “little attention has so far been given cial duties and responsibilities”. to the fact that, because of the develop­ The Committee set out its opinion as to ment of modern mass media, effective mea­ what is and is not included in article 20: sures are necessary to prevent such control “The prohibition under paragraph 1 ex­ of the media as would interfere with the tends to all forms of propaganda threaten­ right of everyone to freedom of expression ing or resulting in an act of agression or in a way that is not provided for in para­ breach of the peace contrary to the Charter graph 3 ”. of the United Nations, while paragraph 2 is The Committee said that it needed “per­ directed against any advocacy of national, tinent information about the rules which racial or religious hatred that constitutes either define the scope of freedom of ex­ incitement to discrimination, hostility or pression or which set forth certain restric­ violence, whether such propaganda or ad­ tions, as well as any other conditions which vocacy has aims which are internal or ex­ in practice affect the exercise of this right” ternal to the State concerned. The provi­ because it is “the interplay between the sions of article 20, paragraph 1, do not pro­ principles of freedom of expression and hibit advocacy of the sovereign right to such limitations and restrictions which de­ self-defence or the right of peoples to self- termines the actual scope of the individu­ determination and independence in accor­ al’s right”. dance with the Charter. The Committee Referring to paragraph 3 of article 19, concluded by stating that State parties which states that the right to freedom of which had not yet done so, should take the expression carries with it special duties and measures necessary to fulfil the obligations responsibilities and therefore may be sub­ contained in article 20, and should them­ ject to certain restrictions, the Committee selves refrain from any such propaganda or pointed out that any restrictions “may not advocacy”. put in jeopardy the right itself” and that they must adhere to the conditions set out in paragraph 3. Decisions Under The general comments relating to article the Optional Protocol 20 make clear that prohibitions of propa­ ganda for war and “any advocacy of na­ During its 17th, 18th and 19th sessions tional, racial or religious hatred that con­ the Committee considered 117 communi­ stitutes incitement to discrimination, hos­ cations. Seventeen cases were concluded by tility or violence” are mandatory. Several the adoption of the Committee’s “views”. States parties have noted in their reports Of the 17,12 concerned Uruguay. Although and in their discussions with the Commit­ this State party had promised during the tee that they neither have nor intend to presentation of its report to the Committee have such prohibitions in their national leg­ to cooperate more fully and respond to the islation, stating that such restrictions are Committee's requests for information, it perceived as possible sources of abuse of has not done so. Its replies rarely addressed the substance of the communications and facts supplied by the authors regarding were always general in nature, never giving their treatment as well as the general prison specific or detailed information. Docu­ conditions. ments requested by the Committee were Uruguay’s ‘prompt security measures’ with one exception not supplied. were under review in Campora Schweizer. Several of the decisions issued by the Although the Committee decided it was Committee contain discussions of the bur­ unable “to pronounce itself on the general den of proof and make clear that the bur­ compatibility of the regime of ‘prompt sec­ den does not rest solely on the author of urity measures’ under Uruguay law with the communication, especially considering the Covenant it did conclude that the “that the author and the State party do not “modalities under which ‘prompt security always have equal access to the evidence measures’ are ordered, maintained and en­ and that frequently the State party alone forced did not comply with the require­ has access to relevant information” (Vasil- ments of article 9”. The victim was not skis v. Uruguay, No. 80/1980, para. 10.4). brought before a judge and was unable to The decisions also make clear that general challenge his arrest and detention. denials by States parties will not suffice. A significant development was the con­ Accession to the Optional Protocol carries clusion in Quinteros Almeida v. Uruguay, with it obligations including the duty to No. 107/1981 that a parent suffers a viola­ contribute to clarification of matters be­ tion of article 7 (prohibition of torture, fore the Committee and the implicit duty cruel, inhuman or degrading treatment) as to investigate in good faith all allegations a result of the “anguish and stress” caused of violations made against it and its author­ by the disappearance of a child and by the ities. Where the State party deliberately re­ continued uncertainty concerning the frains from providing information requested child’s fate and whereabouts. The author by the Committee, the Committee may had filed the communication on behalf of draw conclusions from such failure. See her daughter and on her own behalf. Her Vasilskis v. Uruguay; Dermit Barbato v. daughter was arrested on 24 June 1976. Uruguay, No. 84/1981; and Bequio v. Uru­ Four days later she was brought to an area guay, No. 88/1981. near the Venezuelan embassy and managed Many of the Uruguayan cases involveto escape into the embassy compound treatment of detainees. In Nieto v. Uru­ shouting her identity and the word “asy­ guay, No. 92/1981 andEstradt Cabreira v. lum”. She was abducted from the embassy Uruguay, No. 105/1981, the Committee grounds by at least one Uruguayan police concluded that a practice of inhuman treat­ officer. Despite the repeated demands of ment existed in Libertad prison during the the Venezuelan government and its break­ period covered by the communications ing of diplomatic relations with Uruguay (1976—81). This conclusion was based on over the incident, the Uruguayan authori­ the Committee's consideration of numer­ ties have done nothing to establish the vic­ ous communications and on the particulars tim’s whereabouts. supplied by former detainees in their com­ Three cases involving Uruguay, concern­ munications to the Committee, notably, ed the right to a passport. (Lichtensztein v. Estrella v. Uruguay No. 74/1980 and Cam- Uruguay, No. 77/1980,Montero v. Uru­ pora Schweizer v. Uruguay No. 66/1980. guay, No. 106/1981 and under article (1) The final views published by the Commit­ of the Optional Protocol Varela Nunez v. tee in these cases include a summary of the Uruguay, No. 108/1981. In each case the State party argued that the Committee was cation for refusal was put forward by the not competent to deal with the communi­ State party. cation because the author was not within Final views were also issued in cases in­ its jurisdiction during the time of the alleg­ volving Canada, Italy, Madagascar and ed violation as he or she was living abroad. Zaire. The Canadian case, Maclsaac v. Ca­ The Committee rejected this argument stat­ nada, No. 55/1979 concerned the provi­ ing that the issue of a passport to a Uru­ sions of article 15(1) regarding legislative guay citizen is clearly a matter within the changes which provide for a “lighter penal­ jurisdiction of the Uruguayan authoritiesty”. The Committee concluded that the and the citizen is subject to the jurisdiction author had not established that he was de­ of Uruguay for that purpose. The Commit­ nied the benefit of a “lighter penalty”. tee further stated that “a passport is a This conclusion did not result from any of means of enabling him ‘to leave any coun­ the legal arguments put forward by the try, including his own’, as required by arti­ State party which were based on its nation­ cle 12(2) of the Covenant. Consequently, al law. [it follows] from the very nature of that Italy’s reservation to article 14(5) con­ right that, in the case of a citizen resident cerning its constitutional provisions which abroad, article 12(2) imposed obligations provide for trial before the constitutional both on the state of residence and on the court in respect of charges brought against state of nationality and that, therefore, ar­ the President of the Republic and its Minis­ ticle 2(1) of the Covenant [Each State Par­ ters, and which consequenty does not pro­ ty... undertakes... to ensure to all individu­ vide for an appeal, was reviewed in Fanali als within its territory and subject to its v. Italy, No. 75/1980. The Committee jurisdiction] could not be interpreted as found that the reservation was applicable. limiting the obligations of Uruguay under Trials in absentia were discussed in article 12(2) to citizens within its own ter­ Mbenge v. Zaire, No. 16/1977 wherein the ritory. Committee stated that the requirement of As to the right conferred by article 12 article 14(3) that everyone is entitled to be the Committee made the following obser­ tried in his presence and to defend himself vations: “Article 12 does not guarantee an in person or through legal assistance did unrestricted right to travel from one coun­ not necessarily render “proceedings in ab­ try to another. In particular, it confers no sentia inadmissible irrespective of the rea­ right for a person to enter a country other sons for the accused person’s absence”. than his own. Moreover, the right recognis­ There may be some circumstances in which ed by article 12(2) may, in accordance trials in absentia are permissible; for exam­ with article 12(3), be subject to such re­ ple, when the accused though informed of strictions as are “provided by law, are nec­ the proceedings sufficiently in advance de­ essary to protect national security, public clines to exercise his right to be present. order (oidre public), public health or mor­ The Committee went on to state: “the als or the rights and freedoms of others, effective exercise of the rights under article and are consistent with the other rights rec­ 14 presupposes that the necessary steps ognised in the Covenant”. There are, there­ should be taken to inform the accused be­ fore, circumstances in which a State, if its forehand about the proceedings against law so provides, may refuse passport facili­ him (art. 14(3)(a)). Judgment in absentia ties to one of its citizens. However, in the requires that notwithstanding the absence cases before the Committee no such justifi­ of the accused, all due notification has been made to inform him of the date and place Although the Committee had concluded of his trial and to request his attendance. in the Finnish case that no violation of Otherwise, the accused, in particular, is not the Covenant existed, it did note some dif­ given adequate time and facilities for the ficulties in the full implementation of the preparation of his defence (art. 14(3)(b)), rights. The statement of Finland outlines cannot defend himself through legal assis­ the steps being taken to alleviate these dif­ tance of his own choosing (art. 14(3)(d)) ficulties. nor does he have the opportunity to exam­ ine, or have examined, the witnesses against him and to obtain the attendance and ex­ amination of witnesses on his behalf (art. Decisions on Admissibility I4(3)(e))”. Although noting that certain limits exist Seven decisions on admissibility were as to what can be expected of the respon­ published by the Committee. Two commu­ sible authorities these limits did not need nications filed by a non-governmental orga­ to be specified in the case under considera­ nisation on behalf of an alleged victim were tion, because it was clear the accused had declared inadmissible because there was not received adequate notice of the pro­ not sufficient proof that the author had ceedings against him. the necessary authority to submit the com­ No response was received from the gov­ munication on behalf of the alleged victim. ernment of Zaire concerning the communi­ In one case the organisation had stated that cation in Magana ex-Philibert v. Zaire, No. the request to act on behalf of the victim 90/1981, wherein the Committee conclud­ was made through close friends living in ed that violations of article 9, 10(1) and France whose identity it felt unable to dis­ 2(3) existed. Nor was a response received close. In the other case the organisation from Madagascar in Marais v. Madagascar, stated that the communication was submit­ No. 49/1979 which involved violations ofted at the request of the victim’s wife and articles 7 and 10(1) because the victims that this request was also made through had been held under inhuman conditions close friends whose names it was unable to and incommunicado, and of article 14(3) reveal. In neither case was there any writ­ (b) and (d) because he was denied adequate ten evidence with regard to the authority opportunity to communicate with his coun­ of the organisation to act. sel, and because his right to assistance of In another decision on admissibility, counsel to represent him and prepare his J.R.T. and the W.C. Party v. Canada, No. defence had been interfered with by the 104/1981 the author’s claim was declared Malagasy authorities. inadmissible because it was incompatible During its 15th session the Committee with the provisions of the Covenant. The had decided that when transmitting its final author alleged violations of his rights under views it would request the State party to article 19 (freedom of expression) because advise it of the actions taken in the particu­ he was not allowed to use the telephone lar case. Canada, Mauritius and Finland service to disseminate his ideas. The Com­ submitted statements describing their at­ mittee concluded that the opinions the au­ tempts to comply with the final views of thor sought to disseminate constituted the the Committee. Both Canada and Mauritius advocacy of racial or religious hatred which have made changes in their national legisla­ Canada has an obligation under article 20(2) tion as a result of the Committee’s views. to prohibit. Membership (Canada) on his appointment as a judge of the Court of Appeal of the Supreme Court Four new members were elected to the of Ontario. The new members appear to be Committee during the past year. They are following the tradition of independence Joseph A.L. Cooray (Sri Lanka), Vojin and the spirit of cooperation which has Dimitrijevic (Yugoslavia), Roger Errera characterised the Committee’s work thus (France) and Birame N’Diaye (Senegal). An far and made it one of the most respected election is to be held to fill the vacancy left bodies in the human rights field. by the resignation of Walter S. Tarnopolsky

The European Draft Convention Against Torture

'One o f the most heinous, most persis­taken place. The best, therefore, that a vic­ tent, most deliberate and most cruel of alltim can hope for when relying, for example, crimes against the human person, torture onis the right of individual complaint con­ an act which is almost always carried out tained in the Optional Protocol to the In­ behind closed doors, in the secrecy of ternationalthe Covenant on Civil and Political torture chanbers.' Philip Potter, Secretary- Rights, is the very limited satisfaction of a General o f the World Council o f Churches, public confirmation by the Human Rights Geneva. Committee that she or he was indeed tor­ tured and that the state is vicariously re­ To combat torture effectively, to relieve sponsible for injuries suffered. the physical or psychological torment of its individual victims, one must break down the closed doors of which Mr. Potter speaks A New Approach and end the secrecy behind which the tor­ turer shelters. Of all violations of human rights that However, no means currently exist at in­ are daily perpetrated throughout the world, ternational or regional level either of bring­ that of torture is the most widely and deep­ ing relief to those who are actually being ly abhorred. It calls, therefore, for an inno­ tortured, still less to prevent torture occur­ vative and radical method of international ring. The international and regional instru­ and regional control: a method designed ments designed to combat torture deal with with prevention in mind rather than accusa­ situations in which torture has already tion and apportionment of blame. Such a method was proposed in 1976 by a Swiss rope. The text of the draft European Con­ lawyer, Jean-Jacques Gautier, President of vention will be found at Appendix I. Its es­ the Swiss Committee Against Torture sential proposal is to establish a system of (hereafter called “the Swiss Committee”). visits to places of detention within the ju­ Subsequently, the International Commis­ risdiction of the Contracting Parties. The sion of Jurists and the Swiss Committee visits will be organised by a commission of adopted the Gautier proposal in the form five experts in the field of human rights, of a draft Optional Protocol to the UN serving in their individual capacity. They draft Convention Against Torture under will be elected by a majority vote of the discussion by the UN Commission on Hu­ Parliamentary Assembly of the Council of man Rights. This document was adopted Europe from a list to which each Contract­ and submitted to the UN Commission in ing Party will have nominated three candi­ 1980 by the government of Costa Rica. dates. The visits will be made either by In order not to impose any further delay members of the Commission or other quali­ on the draft Convention, the government fied persons delegated by the Commission. of Costa Rica invited the Commission on Human Rights not to begin consideration of the draft Optional Protocol until it had Safeguarding Detainees finalised its text of the draft Convention1 As consideration of the Draft UN Con­ When talking about persons deprived of vention may take several more years, it their liberty, the image of convicted prison­ follows that there will be no opportunity ers serving prescribed sentences in national for several years to come to demonstrate at prisons most commonly springs to mind. the level of the United Nations the feasibil­ However, it is rare that convicted prisoners ity and effectiveness of this new approach are subjected to torture. Usually torture to the problem of torture. The ICJ and occurs as an instrument of interrogation, the Swiss Committee, therefore, welcomed either in police stations or secret ‘safe a proposal from the Legal Affairs Commit­ houses’ or within interrogation centres. tee of the Parliamentary Assembly of the Some of the victims may be brought to Council of Europe (on the initiative of the trial, but others will be subject to adminis­ French Senator Berrier) that they draft a trative detention and detained without European Convention Against Torture charge or trial often under the provisions based on the draft Optional Protocol. of some emergency legislation. It is, there­ fore, important that the Convention en­ sures delegates will be able to visitall places The Proposed European Conventionof detention including those where persons are held in provisional, administrative or re- The contents of the draft European educative detention or are forcibly interned Convention and the UN draft Optional Pro­ for medical reasons. The proposed proce­ tocol are very similar, the main changes be­ dure is essentially a confidential one. Once ing made to take account of the different having notified a state of their intention to structure of the 21-nation council of Eu­ make a periodic visit, delegates may visit

1) When the Commission on Human Rights has submitted its draft Convention to the ECOSOC, it will be invited to consider the Draft Optional Protocol. If approved by the Commission, it will then be submitted to the ECOSOC and the General Assembly for adoption. any place of detention without prior no­ the governments coooperate with the Com­ tice, in order to avoid preparatory ‘clean- mission. There is, however, an important ing-up’ of particular institutions. Delegates ultimate sanction of publication of the re­ will be able to visit the whole of the pre­ port in the case of resolute non-coopera­ mises and speak alone with any of the de­ tion of a state with the Commission, or tainees, as well as their families or lawyers. misrepresentation of its reports. In deciding which places to visit, delegates can act upon information from any source - an important provision since as men­ The Advantages of a tioned above, the authorities sometimes Regional Convention strive to keep certain places of detention secret and their whereabouts only slowly There are many advantages in instituting leak out through unofficial channels. The this system of visits at a specifically region­ Commission will also have the power to ar­ al level. range emergency visits. Thus, if it has rea­ son to believe torture is being practiced at Speed a specific location, it can take action at once and organise an ad hoc visit with a As already pointed out, it may take sev­ view to bringing immediate relief to the eral years before discussion begins on the victims concerned. UN draft Optional Protocol which embo­ The Commission will submit a report on dies the Gautier proposal at international each visit to the government. It is hoped level, even if approved in principle, and, it that this will lead to a constructive dialogue may be several more years before its text between the Commission and the govern­ is finalised. ment, in which both work together to elim­ At the regional level, however, things inate any existing torture practices and pre­ have already moved quickly. In summer vent their future occurence. 1982, the ICJ and the Swiss Committee This cooperation between the Commis­ were asked to prepare their draft of the sion and the government is a vital facet of Convention. On 7 July 1983, a draft rec­ the Convention and is in direct contrast to ommendation (with the draft Convention the existing international and regional pro­ annexed to it) was presented by the Legal cedures for dealing with torture. These pro­ Affairs Committee to the Parliamentary cedures are all accusatory in nature, forcing Assembly of the Council of Europe. On 28 governments upon the defensive. As the ac­ September 1983, after some debate the cusations are generally the subject of wide­ Parliamentary Assembly voted unanimous­ spread publicity, the government tends to ly to forward the recommendation (Rec­ deny all allegations, exploit the many op­ ommendation 971 (1981) (l)2 and annex­ portunities there are for delay, and seek to ed draft Convention to the Committee of mobilise the support of friends and allies, Ministers of the Council of Europe. On 8 thus politicising the whole issue. to 10 November 1983 the Committee of States ratifying the Convention on the Ministers began discussion on the Conven­ other hand can be assured that the reports tion. Discussion will be continued in Jan­ written by the Commission on the visits are uary 1984. Thus within 18 months great confidential and will remain so as long as strides forward have been made. However,

2) The text of the Recommendations will be found at Appendix II. it is obviously easier for 21 nations3 from could provide not only a spur to the pro­ the same region, with similar backgrounds gress of the UN draft Optional Protocol and a fairly developed understanding of but also a source of inspiration for other their respective differences, to come to regional conventions of a similar nature. agreement than it is for over 150 nations The Council of Europe would once again from all over the world, with widely vary­lead the way as it has done on previous oc­ ing cultural, economic and political back­ casions, most notably in the formulation of grounds. the Convention on Human Rights.

Administration Answers to Possible Objections The Council of Europe already has a structure which can readily cope with the A number of possible objections have administration of the Convention. The Par­ been put forward regarding the need for a liamentary Assembly will elect the mem­ European Convention Against Torture. The bers of the Commission from the list of first is that Europe is no longer a ‘tortur­ nominees of the Contracting Parties (see ing’ region and, therefore, has no need of above). The Commission will be provided such a Convention. However, torture does with secretarial services by the Secretary- still exist in Europe and in recent years General of the Council of Europe who will there have been serious allegations of such also appoint its Secretary, subject to its practices in Turkey, Greece, Northern Ire­ agreement. In addition, the Council of Eu­ land, Italy, Portugal and Spain. Even if this rope already has a Convention on Human were not the case, merely because at any Rights to which the draft convention will particular time there have been no obvious be linked, its terms of reference being to cases of torture in a region is not a suffi­ ensure that article 3 of that Convention cient reason to deny that region the means (‘No one shall be subjected to torture or to to prevent or fight such an occurrence in inhuman or degrading treatment or punish­ the future. Given certain conditions, tor­ ment’) is respected. ture can break out anywhere. If it is looked on as a disease then we can continue the Cost comparison by saying that no single state can claim a natural immunity to that dis­ As the infra-structure is already in place ease. However, it is hoped that the Conven­ and as the draft Convention is limited to tion Against Torture can provide Europe the geographical confines of Europe, it will with, at least, an effective prophylactic. be less costly to implement than the pro­ As Jean-Jacques Gautier has said in ar­ posed Optional Protocol. guing for a European Convention Against Torture: A Model for the Future ‘In the course of the last 50 years and without speaking of the countries of East­ If the draft Convention can be success­ ern Europe, three quarters of the present fully initiated at the European level it members of the Council of Europe have

3) The member states of the Council of Europe are Austria, Belgium, Cyprus, Denmark, Federal Rep­ ublic of Germany, France, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Neth­ erlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey and the United Kingdom. been subjected [to the practice of torture], As the ICRC must negotiate each visit it imposed on them by their own government is vital that it retain the good-will of the or by an occupying power which found ac­ state involved. This is accomplished by complices from within their own popula­ treating all reports in the strictest confi­ tion. If such barbarity seems inconceivable dence. However, this practice (although un­ today, it seemed equally so at the beginning avoidable in the circumstances) can result of this century. It is essential, therefore, in a state publicly vaunting the fact that it not to cherish any illusions but on the con­ allows visits by the ICRC to its prisons as if trary to profit from this period of calm in this proved that it had nothing to hide, order to build within Europe itself solid when in fact the ICRC is in possession of a ramparts against a new invasion of the report documenting hundreds of instances scourge. ’ of torture in that country on which the The second objection is that the Con­ country refuses to act and which the ICRC vention is merely duplicating the work al­ is unable to publicise. No such restrictions ready done in this area by the International tie the hands of the delegates visiting under Committee of the Red Cross. It is true that the Convention. While confidentially is the inspiration for the Convention sprang most definitely part of the appeal of this from the system of visits made bythe ICRC procedure to the Contracting Parties, if at one time or another in more than 80 they refuse to cooperate in taking effective countries in the last 38 years. However, measures to eradicate torture practices, the there are many differences between the report can as a last resort, be made public two approaches. Although the ICRC has at the Commission’s discretion. the authority to visit prisoners of war and A third objection is that few, if any, civilian detainees in situations of armed governments would in fact accept such an conflict under the terms of the Geneva intrusion into their sovereign territory and Conventions, its other visits, for example, their affairs as is envisaged by the Conven­ to political prisoners, are negotiated with tion. As Niall MacDermot, Secretary-Gen- the country concerned on an ad hoc basis. eral of the ICJ, has said ‘the objections that This points to a major difference with the few governments would ratify is one which, Convention. Government consent can be perhaps unconsciously, pays tribute to the withdrawn from the ICRC at any time likely effectiveness of the procedure...’. whereas the Convention leaves Contracting Nevertheless, this objection can be answer­ Parties no such bolt-hole; they are bound ed by pointing out that the system of visits by its terms. If they denounce the Conven­ under the Convention is likely to be less tion it will be tantamount to an admission embarrassing, and give a much better public that torture is being or will be practised. image to the Contracting Parties, than the In addition, the ICRC normally only accusatory procedures at present used in visits prisons, where torture rarely occurs, the Council of Europe for dealing with the whereas under the Convention the visiting problem of torture. In addition, as has delegates would have access to all places of been seen, over half the states of the world detention. In the rare instances when the have already voluntarily submitted to pro­ ICRC has negotiated access to all places of cedures of a similar type by permitting the detention (for example, Greece in 1971 ICRC to visit their prisons. and Iran in 1977/78) the results have been A fourth objection has been that even if dramatic — an encouraging sign for the suc­ certain states do ratify the Convention they cess of the Convention. will be states which do not practice torture and therefore the visiting delegats will be Conclusion preaching to the converted. Such an objec­ tion can be countered by the argument The draft European Convention repre­ that governments change, and there is no sents an exiting opportunity for innovation guarantee that a country which under one in the implementation of human rights in­ regime was free from torture would not fall struments. Such on-the-spot visits as are en­ victim to it under another. If, however, the visaged in the Convention cannot but have first government had ratified the Conven­ a salutory effect on conditions of deten­ tion, the second government would find it­ tion within the jurisdictions of the Con­ self also bound to accept the visiting dele­ tracting Parties and can be expected to gates, a definite curb on any tendency to­ bring immediate relief to victims of abuse. wards violation of article 3 of the Euro­ In addition, the Convention will rein­ pean Convention on Human Rights. The force the positive aspects of states’ contri­ reverse is also true and an offending regime butions in eliminating torture, rather than which did not ratify the Convention at its emphasising the negative aspects as is the inception may subsequently fall and be re­ case with the existing accusatory proce­ placed by a government for which human dures. It is reasonable to expect that states rights have a higher priority, and whose ratifying the Convention will thus be en­ leaders will sometimes themselves have couraged to increase their efforts to elimi­ been victims of torture and will, therefore, nate torture by working with the Commis­ be eager to adopt such a convention. sion towards this common goal.

APPENDIX I

Draft European Convention on the Protection of Detainees from Torture and from Cruel, Inhuman or Degrading Treatment or Punishment

PREAMBLE (to be drafted)

CHAPTER I Principles Article 1 In order better to ensure respect for and observe Article 3 of the European Convention on Human Rights, the Contracting Parties agree to supplement the procedure provided for in the European Con­ vention oh Human Rights by creating a procedure for the protection of detainees from torture and cruel, inhuman or degrading treatment or punishment.

Article 2 This convention shall apply in all circumstances and all places to all persons deprived of their liber­ ty, whatever the reason, including persons detained for the purposes of inquiries by civil or military authorities responsible for the maintenance of law and order, persons held in provisional, administra­ tive or re-educative detention, persons accused of, or sentenced for, any offence whatever and persons interned for medical reasons. Article 3 No provision of this convention may be interpreted as detracting from the enjoyment by detainees of any advantages applicable to them under domestic legislation or under other international instru­ ments, such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Optional Protocol thereto, and the Geneva Conventions of 12 August 1949 on the protection of victims of armed conflicts and the Additional Protocols thereto of 10 June 1977.

CHAPTER II Commission Article 4 For the purpose of this convention, there shall be established a commission composed of five mem­ bers, who shall serve in their individual capacities and be selected from among persons of high moral standing, known for their competence in the field of human rights or in the fields covered by the con­ vention. The commission may not include two members of the same nationality.

Article 5 1. The members of the commission shall be elected by the Parliamentary Assembly of the Council of "Europe from a list of persons nominated by the Contracting Parties, each of which shall nominate three candidates who are nationals of Contracting Parties, of whom two at least shall be its own na­ tionals. 2. The members of the commission shall be elected for a period of six years. They may be re-elect­ ed. However, among the members elected at the first election, the terms of three members chosen by lot, shall expire at the end of three years.

Article 6 The commission shall meet in camera. Its decisions shall be taken by a majority of the members present and voting. A quorum of the commission shall be four members.

Article 7 1. Without prejudice to Article 6 above, the commission shall draw up its own rules of procedure. It shall meet whenever circumstances require, but at least once a year. 2. The commission shall be provided with secretarial services by the Secretary General of the Council of Europe. Its secretary shall be appointed by the Secretary General in agreement with the commission.

CHAPTER III Visits Article 8 1. The commission may organise visits, by delegates chosen from among its members or other per­ sons, to places of detention within the jurisdiction of the Contracting Parties. 2. Apart from periodic visits in the territory of each Contracting Party, the commission may orga­ nise such other visits as appear to it to be required in the circumstances.

Article 9 1. The commission shall notify the government of the Contracting Party concerned of its inten­ tion to carry out a visit. After such notification, its delegates may, without prior notice and at any time, visit any place within the Contracting Party's jurisdiction where they believe detainees as refer­ red to in Article 2 above are being or may be held, including police stations and civil and military in­ terrogation centres. 2. The delegates may not inspect places which representatives or delegates of Protecting Powers of the International Committee of the Red Cross are entitled to visit under the Geneva Conventions of 1949 and the Protocols of 1977 thereto and which they do in fact visit regularly. 3. A Contracting Party in whose territory a visit is being made shall provide the commission with every facility to carry out its task and may in no way hamper the visit. In particular, it shall give the commission full information on the places where detainees, including specified persons, are being held. 4. The delegates may interview detainees alone and at leisure. 5. The delegates may communicate freely with the families, the counsel and doctors of detainees. 6. During each visit, the delegates shall ascertain that detainees are being treated in conformity with Article 3 of the European Convention on Human Rights. 7. If necessary, the delegates shall immediately communicate their observations and recommenda­ tions to the appropriate authorities of the Contracting Party concerned.

Article 10 1. After each visit, the commission shall draw up a report, setting out its observations and recom­ mendations. On the basis of this report, the commission shall inform the Contracting Party concerned of its findings and, if necessary, make recommendations. The commission may on its own initiative en­ gage in consultations with the Contracting Party with a view to improving the treatment of detainees. 2. As a rule, the reports, findings, recommendations and consultations of the commission shall be confidential. By way of exception, however, if the government concerned fails to co-operate or refuses to apply the recommendations, the commission may decide to make a public statement on the matter, announcing its findings and recommendations. It must publish its findings and recommendations whenever requested to do so by the Contracting Party concerned. 3. The commission shall submit to the Committee of Ministers a general report which shall be transmitted to the Parliamentary Assembly and made public.

CHAPTER IV Final provisions Article 11 The convention shall be open to signature by the member states of the Council of Europe. It shall be subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 12 1. This convention shall come into force on the first day of the month following the expiry of a period of three months after the date on which five member states of the Council of Europe have ex­ pressed their consent to be bound by the convention in accordance with the provisions of Article 11 above. 2. In respect of any member state which subsequently expresses its consent to be bound by the convention, the convention shall come into force on the first day of the month following the expiry of a period of three months after the date of deposit of the instrument of ratification, acceptance or ap­ proval.

Article 13 Any state may, at the time of signature or when depositing its instrument of ratification, accep­ tance, approval or accession, or at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this convention to all or some of the territories for whose international relations it is responsible. In respect of such territories, the convention shall come into force on the first day of the month following the expiry of a period of three months after the date on which such declaration is received by the Secretary General.

Article 14 No reservations may be made in respect of the provisions of this convention.

Article 15 1. Any party may, at any time, denounce this convention by means of a notification addressed to the Secretary General of the Council of Europe. 2. Such denunciation shall take effect on the first day of the month following the expiry of a pe­ riod of twelve months after the date on which the notification is received by the Secretary General.

Article 16 The Secretary General of the Council of Europe shall notify the member states of the Council of Europe of: a. any signature; b. the deposit of any instrument of ratification, acceptance, approval or accession; c. any date of entry into force of this convention in accordance with its Articles 12 and 13; d. any other act, notification or communication relating to this convention, except for action taken in pursuance of Chapter III above.

In witness whereof, the undersigned, being duly authorised thereto, have signed this convention. Done a t ...... t h is...... day o f...... 19 . ., in English and in French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Coun­ cil of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member state of the Council of Europe.

APPENDIX II

Parliamentary Assembly of the Council of Europe Thirty-Fifth Ordinary Session Recommendation 971 (1983)1 on the protection of detainees from torture and from cruel, inhuman or degrading treatment or punishment

The Assembly, 1. Recalling that torture has been universally denounced as one of the gravest violations of hu­ man rights, demanding effective measures for its prevention; 2. Recalling its Recommendation 909 (1981), on the International Convention against Torture, and Committee of Ministers Resolution (78) 41, on the teaching of human rights in the member coun­ tries; 3. Noting that, by virtue of the domestic legislation of member states and the European Conven­ tion on Human Rights, the victims of torture or inhuman or degrading treatment have legal channels open to them for denouncing such violations of human rights; 4. Stressing, nevertheless, that these legal channels only become available once the individual has become the victim of torture; 5. Considering that most acts of torture are committed in places of detention, and convinced that regular visits without notice to places of detention would make a considerable contribution to the prevention of torture; 6. Noting that such visits are recommended in the draft optional protocol to the draft Interna­ tional Convention against Torture currently being studied in the United Nations, and hoping that this will shortly be adopted; 7. Considering that such a system cannot be expected to come into operation rapidly and fault­ lessly throughout the world; 8. Considering that all prevention of torture and of inhuman or degrading treatment begins with instruction in human rights to be given in all systems and at all levels or education and as part of train­ ing for all civil and military service staff, whatever their rank or field; 9. Noting many allegations concerning prison conditions in certain member countries and in par­ ticular the use of torture and similar treatment; 10. Considering that the governments of the Council of Europe member states have a duty to combat jointly all torture and inhuman, cruel or degrading treatment, and any abuses that have found their way into prison practice despite the vigilance of their j udicial authorities; 11. Considering that, by establishing under the Council of Europe a system of visits without no­ tice to places of detention, so as to protect the detainees against torture or cruel, inhuman or degrad­ ing treatment or punishment, the member states of the Council of Europe would, once again, be acting as pioneers in the field of human rights as they did in the case of the European Convention on Human Rights itself. 12. Recommends that the Committee of Ministers: i. adopt the draft European Convention on the Protection of Detainees from Torture and from Cruel, Inhuman or Degrading Treatment or Punishment, the text of which is appended hereto; ii. ask the Secretary General to assemble information concerning implementation by the member states of its Resolution (78) 41 and to report back to the Parliamentary Assembly without delay.

1) Assembly debate on 28 September 1983 (13th Sitting) (see Doc. 5099, report of the Legal Affairs Committee, and Doc. 5123, opinion of the Political Affairs Committee). Text adopted by the Assembly on 28 September 1983 (13th Sitting). ARTICLES

The Universal Declaration at 35: Western and Passe or Alive and Universal

by Philip Alston*

In the years since its adoption by the able by the end of World War II. Similarly, UN General Assembly, on 10 December we cannot expect that the standards which 1948, the Universal Declaration of Human the international community has consecrat­ Rights has, on occasion, been the subject ed as of today will be accepted in their en­ of extravagant, and often conflicting, tirety 100 years from now. claims as to its status and validity. While Given this constant evolution it is useful some have argued that the Universal Decla­to reflect on the extent to which our con­ ration constitutes the basis for a universally ception of human rights has evolved in the accepted common law of mankind, others 35 years since the Universal Declaration have attacked it on the grounds that it em­ was proclaimed as “a common standard of bodies a peculiarly Western individualistic achievement for all peoples and all na­ approach and reflects "a moral chauvinism tions”. Such a reflection is made all the and ethnocentric bias” which ensure its ir­ more necessary by the extent to which relevance in all non-Western societies1. On many of the Declaration’s detractors have the occasion of the Declaration’s thirty - portrayed it as a static selection of narrow­ fifth anniversary, and in view of the fact ly-based philosophical principles, which that it continues to serve as a cornerstone were set in concrete on the day of their for the activities both of the UN and of adoption and have since grown progres­ most non-governmental organizations in sively and steadily less relevant in a world the field of human rights, it seems timely which has changed dramatically since 1948. to assess the validity of these competing From among the ranks of those who perspectives. have tended to see the Declaration as a An appropriate starting point for such a time-bound, and therefore increasingly stocktaking is the saying that “nothing en­ anachronistic instrument, two substantially dures but change”. The concept of human different prescriptions have emerged. The rights is, almost by definition, a dynamic first and more radical prescription is to one. Thus, what was acceptable less than jettison the existing eurocentric approach, 200 years ago (slavery, torture, death from as said to be embodied in the Universal starvation) had become no longer accept­ Declaration, and to embark upon a funda-

* The views expressed in this article are those of the author in his personal capacity and do not neces­ sarily reflect those of the United Nations. 1) Admantia Pollis and Peter Schwab (eds.)T Human Rights: Cultural and Ideological Perspectives (New York, Praeger, 1979), p. 14. mental reconceptualization of human rights. the group which drafted the Declaration, The second prescription has envisaged the the representatives of China and Lebanon proclamation of additional human rights were among the most active participants. and even a whole new ‘generation’ of hu­ At the General Assembly in 1948 Egypt, man rights, designed to make up for the Ethiopia, Liberia, Afghanistan, the Philip­ shortcomings of the Declaration. pines, Thailand, India and Pakistan as well In the present article it is proposed to as all of the Central and Latin American examine the major criticisms which have States were among the 48 voting in favour been made of the approach reflected in the of the Declaration (Saudi Arabia, South Universal Declaration and to note the most Africa and the Eastern European States significant developments in human rights made up the eight abstentions, with no thinking which have taken place over the States voting against). last generation. The main thrust of the analysis is that while many, if not all, of the criticisms which have been made have some validity, the Declaration’s philoso­ “The Declaration’s Philosophical phical underpinnings are sufficiently eclec­ Roots Are Exclusively Western and tic, its text sufficiently flexible, and recent Its Values Are therefore Inapplicable developments sufficiently responsive, to to Other Societies” ensure its continuing relevance as a ‘living’ instrument of incomparable importance in There is no doubt that the general con­ the field of human rights. cept of the Declaration, as well as much of its language, bear the stamp of Western philosophical and legal thinking. Neverthe­ “Third World Participation in less, the Declaration cannot reasonably be the Drafting of the Declaration said to be the exclusive reflection of any Was Negligible” one ideological conception. Even in the West in the late 1940s many conservatives This criticism has some basis although it rejected the philosophy underlying the is frequently overstated. While it is true Universal Declaration on the grounds that that the great majority of Third World it represented at attempt to impose alien States were still under colonial rule and beliefs upon them and to destroy individu­ were unable to contribute to the UN hu­ ality. Their fears were epitomized by a man rights debate in the years between 1949 American Bar Association report 1946 and the adoption of the Declaration which warned that: in 1948, the contribution of the Third World was by no means negligible. Indeed “Peoples who do not know the meaning at San Francisco in 1945 the main propo­ of freedom are to be metamorphosed nents of immediate adoption of a Declara­ into judges of the freedoms of others. A tion of Human Rights were Chile, Cuba common pattern is to be set for billions and Panama with the latter even going so of people of different languages, reli­ far as to provide a draft “Declaration of gions, standards of living, culture, educa­ Essential Human Rights” which it wanted tion, and mental and physical capacity. appended to the UN Charter. At the early A few people, with beliefs utterly for­ sessions of the Commission on Human eign to each other, meet, debate, and by Rights, India played an active part, while in majority vote seek to determine how the people of the world shall live on a state”.4 common pattern.”2 But regardless of the strength or other­ wise of analyses designed to demonstrate The Eastern European input into the the diverse cultural and philosophical ori­ Declaration’s drafting was sufficient to en­ gins of the Declaration’s conception of hu­ sure the inclusion of economic, social and man rights, a more telling point is the ex­ cultural rights as well as the use of languagetent to which the philosophy embodied in in the Preamble referring not only to indi­ the Declaration has been either endorsed or viduals but also to peoples and organs of repudiated in different contexts over the society. Moreover, most of the concerns past 35 years. It has been argued that the dealt with in the Declaration had long been widespread human rights violations which recognized within the varying conceptions have occurred since the Declaration's adop­ of human dignity which are an integral part tion amount to a massive repudiation in of the world’s major religious and cultural practice of its principles5. Yet experience traditions. Thus, while the specific termi­ has shown that the vast majority of viola­ nology of rights may be alien to, for exam­ tors (from Pol Pot, Idi Amin and Pinochet ple Islamic, Confucian, Hindu or African on down the list) have either denied the approaches, the concerns underlying it are facts alleged or have sought to justify their not. For example, an International Com­ actions rather than seeking to deny the va­ mission of Jurists seminar on Human Rights lidity per se of the principles contained in in Islam, held in Kuwait in 1980, conclud­ the Universal Declaration. In any event, ed, inter alia, that “Islam was the first to such an argument would be equally applic­ recognize basic human rights and almost able to any bill of rights or other state­ fourteen centuries ago it set up guarantees ments of principle or belief (including the and safeguards that have only recently been Koran and the Ten Commandments) and is incorporated in universal declarations of not convincing as a means by which to re­ human rights”.3 fute claims to near-universal acceptance of Similarly, UNESCO which, in recent the principles proclaimed in the Universal years has been in the forefront of endeav­ Declaration. ours to promote new human rights, has More convincing is the fact that the ba­ nevertheless reaffirmed that “the Universal sic principles enunciated in the Declaration Declaration of Human Rights is, in respect have repeatedly been affirmed in instru­ of a number of the rights which it pro­ ments reflecting the deepest aspirations of claims, the systematic expression of funda­ the Third World such as the 1960 Declara­ mental rights which are stated to be inalien­ tion on the Granting of Independence to able, and which have been known under Colonial Countries and Peoples, and in a different forms by all human communities, variety of regional and subregional treaties long before the emergence of the nation ranging from the 1981 African Charter of

2) Annual Report of the American Bar Association, Vol. 74, 1949, p. 318. 3) Human Rights in Islam (Geneva, ICJ, 1982), p. 9, para. 10, and see generally Jack Donnelly, “Hu­ man Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights” , American Political Science Review, Vol. 76, June 1982, pp. 303—316. 4) UNESCO, Medium-Term Plan 1984—1989, para. 13022. 5) Pollis and Schwab, n. 1, pp. 7—8. Human and People’s Rights6 which both in collectivity (be it an African tribe, an indi­ its Preamble and operative parts (article genous people or a Soviet commune). Nev­ 60) singles out the Universal Declaration as ertheless in what Schwelb termed the “stu­ a particularly important source of inspira­ diously vague language of its Preamble” tion, to the Riobamba Charter of Conduct7 specific reference is made to peoples, na­ adopted by a group of Latin American tions and organs of society while in the op­ States in 1980. Moreover, the Heads of erative part reference is made: to “every­ State or Government of the Non-Aligned one as a member of society” (article 22); Movement have, at each of their recent to the community (article 27) “in which summits (Havana, in 1979 and New Delhi, alone the free and full development” of the in 1983) reiterated “their commitment to human personality is possible (article 29); ensure respect for the promotion of human and to the “social... order” in which human rights of individuals and the rights of rights can be fully realized (article 28). peoples in accordance with the UN Charter The vagueness and flexibility of the lan­ and the Universal Declaration of Human guage used in the Declaration has enabled Rights...”8 No other specific human rights the notion of collective rights to be signifi­ instruments are referred to in the Non- cantly developed in the years since 1948 Aligned documents. without doing violence to the basic text. A At the national level the Declaration has significant expansion has in fact taken been expressly referred to in the constitu­ place not only with respect to the rights of tions of a large number of Third World peoples to self-determination and to freely States. While it may be argued that suchdispose of their natural wealth and re­ references were often just one more legacy sources which were enshrined in article 1 of colonialism, these references have not of both the Covenants and the rights of ceased to be made in recent years. ethnic, religious and linguistic minorities, recognized in article 27 of the Covenant on Civil and Political Rights, but also in a vari­ “The Declaration enshrines ety of other contexts. The most notable of an individualistic approach to these is the emergence of a category of human rights which is unacceptable “people’s rights” which have been pro­ in non-Western societies” claimed alongside human rights in the Afri­ can Charter of Human and People’s Rights. It has been suggested that the Declara­ They include the right to economic, social tion is “based on the notion of atomized and cultural development, the right to na­ individuals... [and] predicated on the as­ tional and international peace and security sumption that Western values are para­ and the right to a generally satisfactory en­ mount and ought to be extended to the vironment. non-Western world”.9 It is true that the Similarly, the UN General Assembly has, Declaration places greater, and many today since 1978 and 1979 respectively, recogniz­ would say undue, emphasis on the rights of ed the right to development and the right the individual as opposed to those of the to life in peace as human rights. In doing so

6) ICJ Review, No. 27, 1981, pp. 76—86. 7) ICJ Review, No. 25, 1980, p. 64. 8) UN doc. A/38/132, Annex 1, Part I, para. 24. 9) Pollis and Schwab, n. 1, p. 8. the Assembly has sought to find a response, tional Covenant on Civil and Political in terms of human rights, to the two most Rights has received only 30 ratifications pressing issues on the international agenda. and the equivalent procedure under the While this is not the place to debate the sig­ Convention on the Elimination of All nificance, the merits or even the standing Forms of Racial Discrimination has been of these new rights, it is appropriate to accepted by only 10 States. note that there is a continuing debate with­ For present purposes, however, the point in the UN (and particularly within the con­ is simply that in recent years the principles text of the Working Group of Governmen­ contained in the Universal Declaration have tal Experts on the Right to Development been interpreted in such a way as to give set up by the Commission on Human Rights greater recognition to the rights of collec­ in 1981 to draft a declaration) as to wheth­ tivities, including peoples. Legitimate fears er the right to development is essentially an have been voiced that some of the propo­ individual or collective right or both. A fur­ nents of concepts such as people’s rights ther point of dispute is whether the sub­ may be primarily motivated by a desire to jects or beneficiaries of so-called collective reinforce the power of the State at the ex­ rights can include a ‘nation’ or a ‘State’, or pense of the individual in the human rights whether, since human rights are by defini­context. Therefore the challenge for the tion held by human beings, such entities future is to develop the concept of people's are, unlike peoples, precluded from being rights in such a way that it complements the holders of human rights. and reinforces, rather than undermines, the In terms of international procedures integrity and universality of the existing aimed at protecting the rights proclaimed corpus of international human rights law. in the Universal Declaration, and particu­ larly civil and political rights, any sugges­ tion that the collectivity has been neglected “The Declaration pays scant would seem wholly unwarranted. Indeed, regard to economic rights” recognition of the right of individual peti­ tion, the inclusion of which had unsuccess­ In President Roosevelt’s famous Four fully been sought during the drafting of the Freedoms message to Congress in 1941, Universal Declaration, has developed much freedom from want was placed on the same more slowly than have procedures designed level of importance as freedom of speech to ensure the collective protection of hu­ and worship and freedom from fear. Three man rights. Thus for example what could years later he told the Congress that “We be called ‘collective’ procedures or reme­ have come to a clear realization of the fact dies have been provided by means such as that true individual freedom cannot exist the procedure established by ECOSOC res­ without economic security and indepen­ olution 1503 which focuses on ‘situations’ dence... In our day these economic truths involving gross violations of human rights have become accepted as self-evident. We rather than on individual cases, and through have accepted, so to speak, a second Bill of the focus in recent years on phenomena Rights...” Four years later, of the Universal such as disappearances, extra-judicial exe­ Declaration’s 25 paragraphs dealing with cutions, and the abuse of declarations of specific rights, 6 were devoted to economic, states of emergency. On the other hand, social and cultural rights. In principle the the individual petition procedure provided emphasis attached to these rights by the for in the Optional Protocol to the Interna­ socialist and some other countries had been recognized. The goals espoused by the and entitlements which derive from it. Soviet and Mexican Revolutions, by the While the recent development of con­ Constitutions of the Weimar (1919) and cern with economic rights has been inter­ Spanish (1931) Republics, and by the preted by some commentators as resulting emerging welfare states in Western Europe in “the elimination of civil and political had received international recognition. rights from serious international considera­ In practice, however, the UN was to ne­ tion”,10 an attempt to restore balance into glect economic, social and cultural rights as the treatment of the two sets of rights had a serious field of endeavour for the next in fact been long overdue. The Universal two decades. It was not until the Interna­ Declaration is predicated upon the equal tional Conference on Human Rights held in importance of the two sets of rights and Teheran on the 20th anniversary of the recent endeavours are thus consistent with Universal Declaration that the importance the vision which it represents. of these rights was reaffirmed, primarily at the insistence of the developing countries. In 1977 the General Assembly adopted “The Declaration does not take a controversial but highly significant resolu­adequate account of the traditions tion (32/130) in which, inter alia, it reaf­ and needs of the Third World” firmed that “equal attention and urgent consideration should be given to the imple­ It is sometimes suggested that “the doc­ mentation, promotion and protection of trines of human rights as embodied in the both civil and political, and economic, so­ Universal Declaration of Human Rights cial and cultural rights”. Since that time may not be relevant to societies with a non- the concept of the right to development Western cultural tradition or a socialist has been used as inter alia an important ideology”.11 In its extreme form such an means by which to re-emphasize the im­ approach would thoroughly undermine the portance of economic, social and cultural existing system for the international pro­ rights and to seek to reverse their earlier tection of human rights and create a “free neglect. In 1982 the UN’s Sub-Commission for all” situation in which each dictator on the Prevention of Discrimination and and each military junta, as well as each Protection of Minorities embarked upon democratically elected but embattled gov­ the first study of a specific economic, social ernment, could design its own bill of rights or cultural right ever to be undertaken by a to suit not only local traditions but also its UN body (as opposed to the ILO which has own self-interest. long been concerned with the rights to work Nevertheless, the criticism cannot be dis­ and to social security). It chose the right to missed solely on the ground that the vacu­ adequate food, and asked the Special Rap­ um which rejection of the Declaration porteur (Asbjorn Eide of Norway) to focus would create is sufficiently horrific to war­ particularly on the normative content of rant its continued universal acceptance. the right with a view to spelling out its pre­ Many developing countries justifiably feel, cise implications, including the obligations as noted at the ICJ’s 1978 Dakar Collo-

10) Jack Donnelly, “Recent Trends in UN Human Rights Activity: Description and Polemic”, Inter­ national Organization, Vol. 35, 1981, pp. 633—55. Cf. Alston, "A Reply to Donnelly”, Interna­ tional Organization, Vol. 37, 1983, pp. 538—46. 11) Pollis and Schwab, n. 1, p. i. > quium, that the periods of colonialism and and so need governments that are also neo-colonialism have in many cases imposed authoritarian and paternalistic; that cultural systems and development models Asia’s hungry masses are too concerned upon them which are completely alien.12 with providing their families with food, They therefore wish to rid themselves of all clothing, and shelter, to concern them­ vestiges of cultural hegemony and to en­ selves with civil liberties and political courage the emergence or re-emergence of freedoms; that the Asian conception of traditional and self-reliant approaches to freedom differs from that of the West; development as well as to human rights. that, in short, Asians are not fit for hu­ An assessment of the appropriateness or man rights [,.. This] is racist nonsense... rather applicability of the Universal Decla­ Authoritarianism promotes repression ration in a given society requires the con­ not development - repression that pre­ sideration of two separate issues. The first vents meaningful change and preserves relates to the rights themselves and the sec­ the structures of power and privilege.”13 ond concerns the manner of implementa­ tion of the rights. All too often these issues It must also be noted that the language are inappropriately lumped together and used in the Declaration is, by design, suf­ the analysis which follows is inevitably ficiently flexible to allow each State a confused. “margin of appreciation” in interpreting The first issue can generally be resolved the requirements of any particular right. by asking which particular rights are to be To take but one example, “the right to dispensed with as being culturally inappro­ own property alone as well as in associa­ priate in a given society and who is to de­ tion with others” (article 17 of the Decla­ cide. Within the confines of the present ar­ ration) is recognized in virtually every soci­ ticle it is not possible to survey all of the ety. However, the right is not absolute and rights and consider which of them may or varying degrees of restriction may be placed may not be applicable in a particular socie­ upon its enjoyment according to a society’s ty. Suffice it to say that the exercise wouldbasic philosophy. The right was omitted (it is to be hoped) not be unduly contro­ from the Covenants not because of its un­ versial with respect to rights such as the acceptability per se but because of the in­ right to life, the rights not to be enslaved, ability of States to agree on provisions gov­ tortured, or arbitrarily arrested, the right erning compensation for deprivation of to work, the right to an adequate standard property. of living and the right to education. With A more contentious and complex aspect respect to the remaining rights it is perti­ of the question of universality relates to nent to recall the wise words of Jose the methods envisaged for implementation Diokno in rejecting what he termed “cur­ of the rights. Although the Declaration, un­ rently fashionable justifications for author­ like the Covenants, imposes no specific itarianism in Asian developing countries”: obligations upon States with respect to measures of implementation, its general ap­ “One [justification] is that Asian socie­ proach is clearly more attuned to a society ties are authoritarian and paternalistic with a highly developed legal system and a

12) Revue Senegalaise de droit, No. 22 (1977/78), p. 208. 13) Jose W. Diokno, 1978 Sean MacBride Human Rights Lecture, International Council of Amnesty International, Cambridge, 21 September 1978 (mimeo), p. 9. sophisticated judicial structure than to one the “Western” approach to implementation with a more traditional and informal sys­ for which the Declaration has been criticiz­ tem of justice. On this score, the allegation ed. Finally, reference should be made to that the Declaration embodies a strongly the development of regional machinery, Western approach seems well justified. particularly in Latin America over the past Nevertheless, in recent years there has few years and potentially in Africa, which been wide recognition of the need for flex­ significantly enhances the prospects that ibility as well as creativity in determining specific local conditions, as well as tradi­ the most appropriate and effective ap­ tions, will be taken fully into account. proach towards implementation in each community. Thus, for example, among the draft conclusions reached (but not formal­ “The Declaration overlooks ly adopted for want of time) by a UN sem­ the importance of inar on “the experience of different coun­ international solidarity” tries in the implementation of international standards on human rights”, held in June Each generation quite naturally likes to 1983, were the following: think that it has made some significant contribution to the further enrichment of - “In the implementation of human rights, the inheritance which it received from its the methods used should take account predecessor. And indeed in the field of hu­ of the traditions and culture of each so­ man rights the present generation has made ciety as well as of its legal system...” ; an important contribution. That contribu­ and tion has, however, been more in the way of - “Contribution to the implementation of application and extension of the principles international standards on human rights contained in the Universal Declaration at the domestic level may also be made rather than any fundamental reconceptual­ through various bodies including, where ization of human rights. One of the most they exist, conciliatory agencies, such as striking examples of this is to be found in human rights commissions, people’s or­ the present day endeavours to extend the ganizations, and grass-roots organiza­ reach of, or to ‘internationalize’, States’ tions, such as village tribunals.”14 obligations to take measures for the pro­ motion and protection of human rights. The rejection of unnecessarily legalistic This approach lies at the heart of much approaches to implementation has also of the thinking on the right to develop­ been reflected in the West with an increas­ ment, particularly insofar as it has been ing emphasis on non-adversary and often suggested that the right implies a positive non-legally binding forms of redress or con­ duty for ‘rich’ States to make regular trans­ ciliation. In addition there has been grow­ fers of financial and perhaps other re­ ing awareness in both inter-governmental sources to those States that are at present fora and at the national level that remedial unable to ensure the satisfaction of the or curative action needs to be supplement­ fundamental human rights of their citizens. ed with preventive approaches designed to While it seems most unlikely that such a avoid potential violations of human rights. duty will willingly be accepted in the fore­ This also implies a further trend away from seeable future, the principle of the account-

14) UN doc. ST/HR/SER.S/15 (1983), Annex I, paras. 4 and 10. ability of States for the impact of their ac­ is entitled to a social and international or­ tivities on the enjoyment of human rights der in which the rights and freedoms set is nevertheless a very important one. In forth in this Declaration can be fully realiz­ many respects it is the unifying thread ed”. The responsibilities of States in this which runs through the various so-calledregard are also clearly spelled out in articles solidarity rights of the third generation 55 and 56, which require cooperation (civil and political rights being the first, among States for the promotion of both re­ and economic, social and cultural rights the spect for human rights and economic and second). However, the great drawback of social progress and development. such a system of compartmentalization in­ to generations is the unfortunate implica­ tion that international solidarity is relevant Conclusion only to a few ‘new’ rights (peace, develop­ ment, environment etc.) rather than to all Since 1948, when the Universal Declara­ human rights. Thus for example, in the tion of Human Rights was proclaimed, pro­ Third World today, enjoyment of the right found and enduring changes have occurred to life and of the right to food is very often in the composition of the international conditioned, at least to some extent, on ac­ community. The most decisive of these re­ tion or inaction on the part of the interna­ sulted from the wave of decolonization tional community. In that context interna­ which swept the world especially in the tional solidarity is no less important than 1950s and 60s and led, inter alia, to a it is with respect to, for example, protec­ shift in voting power in the General Assem­ tion of the environment. As the Sub-Com- bly in favour of the Third World. In all mission’s Special Rapporteur on “the NIEO fields of UN activity the consequences and the promotion of human rights” con­ were significant. For example, economic cluded, “the challenge is... a pervasive one development became an issue of overriding and requires constant vigilance to ensure importance with the establishment of that economic relations, at the internation­ UNCTAD in 1964 as a vehicle for the ex­ al as much as at the national level, are ap­ pression of Third World demands and the proached in such a way as to ensure that adoption of a range of proposals (demands) the concepts of the dignity of every indi­ for the establishment of a new internation­ vidual and of human solidarity are the guid­al economic order in the early 1970s. It ing principles. In the establishment of a new was also to be expected that the needs and international economic order full respect aspirations of the new majority, represent­ for human rights must be seen both as an ing well over half of the world’s popula­ end in itself and as an essential means.”15 tion and a highly disproportionate share of In the present context the point is that, those living in absolute poverty, would be rather than constituting a dramatic expan­ reflected in a significant re-thinking of the sion of basic human rights principles, ef­ basic approach to human rights. forts towards an internationalization of re­ In recent years, and especially since sponsibility for the promotion of respect i977, this has in fact been the case. The for human rights basically amount to giving emergence of new concepts such as the substance to article 28 of the Universal right to development and the right to Declaration which provides that “everyone peace, the growing emphasis on issues per-

15) UN doc. E /C N .4/Sub.2/1983/24/A dd. 1, para. 50. ceived to be of particular importance to and the relationship between the individual the Third World, and the recognition of the and collective dimensions of human rights, need for a deeper approach which attacks were all debated at length in the late the roots as well as the surface manifesta­ 1940s and continue to be at the heart of tions of economic, social, political, cultural many of today’s most troublesome issues. and other forms of operation, are all exam­ In 1983, even more so than in 1948, the ples of the way in which the UN system Universal Declaration stands out as a bea­ has responded. con in a fog of inhumanity. Yet the Decla­ By the same token, however, these new ration does not purport to offer a single directions have by and large been more in unified conception of the world as it should the nature of a widening and deepening of be nor does it purport to offer some sort of the vision contained in the Universal Decla­ comprehensive recipe for the attainment of ration rather than a rejection or replace­ an ideal world. Its purpose is the rather ment of that vision. In today’s thinking: more modest one of proclaiming a set of the right to property occupies a less exalted values which are capable of giving some place than it did in the Declaration; the guidance to modern society in choosing right to self-determination has assumed an among a wide range of alternative policy almost pre-eminent place in the Covenants; options. a greater emphasis is being placed upon col­ On the Declaration’s thirty-fifth anni­ lective rights and several so-called synthesis versary there is a large and growing body of rights have been proclaimed; the right to evidence to support John Humphrey’s as­ petition, which the Declaration omitted, is sessment that “in addition to their admit­ gradually being given procedural substance ted moral and political authority, the jus­ through a host of generally uncoordinated ticiable provisions of the Declaration, in­ initiatives; a considerable effort is being cluding certainly, those enunciated in arti­ made to take full account of the experi­ cles one to twenty-one inclusive, have now ence, traditions and particular concerns of acquired the force of law as part of the cus­ developing as well as developed countries; tomary law of nations”.16 Of particular im­ and there is a growing awareness that portance in this regard is the 1980 judg­ States' human rights responsibilities do not ment of the US Court of Appeals in the cease at national boundaries. case of Filartiga v. Pena-Irala in which it To date, however, none of these devel­ was held that the prohibition of torture opments has been presented as a repudia­ “has become part of customary interna­ tion of the basic principles contained in the tional law, as evidenced and defined by the Declaration. The dominant ideological dis­ Universal Declaration of Human Rights”,17 putes of our day were hardly less signifi­ In conclusion, it is clear that the Univer­ cant or controversial at the time of the sal Declaration has stood the test of time Declaration’s adoption. The relationship extraordinarily well. As a ‘living’ docu­ between the two sets of rights, the extent ment, which has been interpreted dynam­ to which human rights obligations are ca­ ically in response to changing perceptions, pable of limiting State sovereignty, the needs and aspirations, it is neither Western place of the individual in international law, nor passe. Indeed at a time when a variety

16) J. Humphrey,The Great Adventure: Human Rights and the United Nations (Dobb’s Ferry, Trans­ national, 1983). 17) 630 F. 2d 876 at 882 (2d Cir. 1980). of new concepts and even new rights are ed and accepted foundation stone for na- emerging it is all the more important to re- tional and international endeavours to pro- affirm the continuing validity of the Uni- mote and protect human rights, versal Declaration as a universally recogniz- Human Rights and the Peace of Nations

by John P. Humphrey

A question that will naturally arise and which alone possessed rights or owed du­ which will need an answer when the United ties under the order. Only states had inter­ Nations celebrates the thirty-fifth anniver­ national legal personality and what a state sary of the adoption of the Universal Dec­ did to its own nationals was its own busi­ laration of Human Rights on December 10, ness and beyond the reach of international 1983, is whether the anniversary is worthlaw. The order did, it is true, protect cer­ celebrating. There can be no doubt that tain categories of people including aliens; some human rights are better respected but in the eye of the law the individuals in now than they were before the Second question were objects not subjects of the World War, including in certain countries at law. Thus, if the treatment meted out to least economic and social rights and the foreigners in a country fell below a certain rights of women and of racial and religious internationally recognized standard, the minorities. But other human rights are still state of which the injured individuals were violated as badly, some people would say, nationals had a right to protect them. But as they were immediately before and dur­ this right belonged to the state not to the ing the war when the massive and cynical injured individuals. violations of the most basic human rights The normative order of the world is in and by certain countries provided the now changing. There now exists, as already catalyst for the human rights provisions of indicated, an international law of human the United Nations Charter and the now rights by reference to which the conduct of developing international law of human governments can be judged but which also rights, including the two international cov­ confers rights on individuals. It is to be enants and the Universal Declaration. found in a whole series of international There is however another and more rosy conventions, both bilateral and multilater­ side of the picture. For, while the gap be­ al, in the constitutions of international or­ tween commitment and performance may ganizations including the United Nations be wide, an international law of human and in the customary law of nations. The rights now exists by reference to which best example of the growth of customary the conduct of governments can be and is rules relating to human rights is the Univer­ judged. This law hardly existed on the sal Declaration which was adopted as a res­ night when the Declaration was adopted. olution of the General Assembly and was Traditional international law as it was never meant to be binding on states as part conceived and practiced before the war had of international law. It has been invoked as little place for human rights. It was con­ law so many times both within and outside cerned only with the relations of states the United Nations and is so consistently used by the Organization to interpret the even when it is not respected; and there Charter (which while it mentions human can be neither peace nor human rights rights in many of its articles does not list without order. nor define these) that by juridical consen­ Law that is not obeyed is of course sus the rules and principles enunciated in weak law, which is one of the reasons why the Declaration are now widely recognized developed legal systems provide mecha­ as forming part of the customary law and nisms for the implementation of their rules. therefore binding on all states. The international order provides very few The fact that this body of treaty and such mechanisms. For international law is customary law has come into existence in still highly decentralized in that it possesses such a relatively short space of time is, few centralized executive or indeed legisla­ without any doubt, of the greatest historic, tive or judicial organs of its own. Even moral, political, legal and practical impor­ where these do exist their commands (too tance. In any event from the point of view strong a word perhaps in this context) must of normative standards and the eventual be enforced, if at all, by the individual creation of a new world order it has been states which still possess a monopoly of co­ one of the most important developments in ercive power. This is one reason why the the history of legal institutions. It has force of public opinion still remains the changed not only the content but the very most effective sanction of international nature of international law. What has hap­ law, including the international law of hu­ pened is nothing short of revolutionary. man rights. The present priority, therefore, Once a purely horizontal phenomenon, in­ insofar as the developing although still ternational law is beginning to have a ver­ largely normative international law of hu­ tical dimension. It is no longer a purely in- man rights is concerned, is to press forward ter-state (jus inter gentes) order. It would with current efforts, modest as they may be better indeed to call it world law rather still be, to set up mechanisms for its imple­ than international law. Notwithstanding mentation. Some such mechanisms now the gross violations of human rights that exist including those set up by the Cove­ continue to characterize our times, such a nant on Civil and Political Rights which development is worth celebrating, not only probably function as well as any United because it offers some hope that violations Nations mechanisms of implementation, of human rights can be curtailed, but be­ and those of the European Convention on cause, as will be suggested below, it points the Protection of Human Rights and Free­ the direction that the new world order doms, which function better. must take if we are to respond to the chal­ It would seem therefore that, notwith­ lenge of thermonuclear destruction. It is in­ standing the weaknesses in the system and deed a factor in the creation of such an or­ the gross violations of human rights that der. The developing world law of human continue to characterize the world in which rights may yet, if we have the time, lead uswe live, there has been progress in the in­ away from international anarchy towards ternational protection of human rights world peace. since the adoption of the United Nations Law is a normative order which pre­ Charter and the Universal Declaration. scribes certain conduct; but, unlike the We have already hinted at another per­ laws of physical science, it says what ought spective from which the developing inter­ to or should happen not what will happen. national law of human rights may be view­ Law however is thesine qua non of order ed. It is the relation between respect for human rights and the peace of nations. Few tor in bringing about a change in the struc­ people would deny that this relationship ture and nature of international law that is exists. “Is not peace”, President Kennedy so radical that it challenges the contempo­ once asked, “in the last analysis a matter of rary states system, in which states possess human rights?” This question has already a monopoly of coercive power and are been answered by President Truman in the alone recognized as having international le­ speech with which he closed the San Fran­ gal personality. It is this system which pre­ cisco Conference. Referring to the United vents the organized international communi­ Nations Charter which had just been adopt­ ty from employing its own agents to imple­ ed, Truman said that it was dedicated to ment its law and permits the agents of the the achievement and observance of human state to hide behind the collective respon­ rights. “Unless we can obtain these objec­ sibility of the state. It is probably no exag­ tives for all men and women everywhere, geration to suggest that this system has pre­ without regard to race, language or religion, vented the creation of the kind of world we cannot have peace and security in the order which can keep the peace of nations world.” The same truth is more formally if much in the same way that national gov­ less clearly expressed in article 55 of the ernments have with obvious exceptions Charter and in the preambles to the Univer­ been able to keep the peace at the national sal Declaration and the two Covenants. level. Insofar therefore as the developing After the traumatic experiences of World international law of human rights is con­ War II and events that led up to it, it should tributing to bringing about a change in that be obvious that violations of human rights, system and replacing it by a new order that especially where there is a consistent pat­ is more suited to the realities of the world tern of gross violations, can be a cause of we live in, that contribution is certainly po­ war although of course not the only cause. sitive and worth celebrating on this thirty- The point hardly needs to be laboured. It fifth anniversary of the adoption of the should be equally obvious that war and theUniversal Declaration of Human Rights. fear of war are reasons and sometimes pre­ These are, it must be admitted, radical texts for suspending the exercise of certain assertions. But they are no more radical rights. That possibility is indeed recognized than the technical and political realities of by the Covenant on Civil and Political the world in which we live. Never before in Rights and the regional conventions, which history has the ingenuity of man produced give states parties the right to derogate weapons capable of destroying civilization from their obligations under these instru­ and indeed its very memory. That is why, ments in time of national emergency that in his great book, The Fate of the Earth, threatens the life of the nation. These are Jonathan Schell says that the contemporary not however the truths that we are now states system is obsolete. The institutions concerned with. There is another dimen­ in use for governing the affairs of this plan­ sion to the relationship between human et are no longer adequate for the job. rights and peace which is less obvious, at Collective security as adumbrated by least at first blush. The developing interna­ the Covenant of the League of Nations and tional law of human rights - the catalyst the United Nations Charter has not worked for which was the gross violations of hu­ and is not working, chiefly because the in­ man rights that occurred in certain coun­ dividual states in the system are too power­ tries immediately before and during the ful. In part this is because they possess a war — is probably the most important fac­ monopoly of coercive power and the indi­ viduals who act in their name do so in an the Articles applies mutatis mutandis to official capacity which permits them to them. hide behind the collective responsibility of This exclusively inter-state character of the states for which they act. The only al­international law has already begun to break ternative is a radically different system of down. War criminals were held personally world government which will no longer be liable for their crimes at the Nuremberg exclusively inter-state. Under such a sys­and Tokyo trials, and this notwithstanding tem, states would no longer have the mo­ their defence that they were acting in their nopoly of coercive power and the officials official capacity as agents of their govern­ who act in their name could no longer es­ ments. The United Nations itself, which is cape personal responsibility for their acts. not a state, has been held by the World International law is still defined in some Court to possess international legal person­ textbooks as a system of norms that govern ality, and the same argument is good for the relations of states, and only of states, most other international organizations, in­ to the exclusion of other entities including cluding the specialized agencies. But it is in individual men and women. This reflects the developing international law of human the still essentially inter-state character of rights that the trend is most apparent. In­ international relations. International law dividual men and women now have rights was and essentially still remains, as already under international law, and the system is indicated, a horizontal order quite unlike even beginning to provide procedures, most the vertical legal orders that operate at of them admittedly still weak, through the national level where the law reaches which these individuals may seek remedies down to ultimately the only reality, indi­ in their own name. vidual men and women. American constitu­ This trend has only just begun — thirty tional law under the Articles of Confedera­ five years is a very short time in the history tion, which governed the United States of man - but it points in a new direction. after the War of Independence until the If we escape the threat of thermonuclear adoption of the constitution of 1787, had destruction, historians may be saying, a such a horizontal character. Alexander hundred years from now, that the most im­ Hamilton, in an essay in the Federalist, portant contribution of what we now call called that constitution the “parent of the international law of human rights was anarchy”, and advocated the adoption of a the part it played in the destruction of an constitution under which, unlike the Ar­ obsolete states system - governed by the ticles of Confederation, there would be a parent of anarchy - and the creation of a direct legal relationship or lien de droit be­ new world order based on individual re­ tween the central government of the United sponsibility and rights. In the meantime States and individual Americans. Hamilton there is much to think about in this thirty- was not writing about international law or fifth year of the Universal Declaration of the states system; but what he said aboutHuman Rights. Restructuring Democracy in Turkey

by Biilent Tanor

Since 12 September 1980, when the The purpose of this article is to examine armed forces seized power, Turkey has briefly the political and legal conditions of been governed by a National Security this “return to democracy”. The article Council (NSC), made up of the heads of will refer both to the model of democracy the general staff, the commanders-in-chief which the present regime is attempting to of the army, air force, navy and police set up, institutionalise and bring about in forces. The President of the NSC, General the future political life of the country, and Evren, justified this military intervention the means used in presenting this model, as by referring to the imminence of civil war well as the way in which it will be achieved and the apathy of the State bodies and in­ during the “transition towards democra­ stitutions as well as that of the political cy”. These will be examined under four groups when faced with this danger. The headings: NSC set itself the aim, first of doing away with elements hostile to “national unity” (I) The methods or form of institution­ and “social peace”, thus bringing back alisation — the methods used in estab­ public order and ensuring national security; lishing the new political and constitu­ then of proceeding with setting up a new tional system; legal and political apparatus which would (II) The content or substance of the insti­ ensure the stability of the regime, prior to tutionalisation - the image of the a return to democracy which would be future Turkish democracy as enshrin­ protected from the inconsistencies of the ed in the 1982 Constitution, in other recent past1. words, the “institutional product”; After covering the first two stages to­ (III) The preservation or consolidation of wards a “return to normality”, that is, by the system - the protection of the convening a Consultative Assembly and political and constitutional system, adopting a new Constitution, Turkey has in other words, the long term “freez­ just embarked on the third stage: the elec­ ing of the institutional product”; tions of 6 November 1983, an event con­ (IV) The political and legal framework of sidered and presented, both by official Tur­ the transition — the characteristics kish circles and by part of Turkish and for launching the transition process, world opinions as a turning point in the in other words, “selling the institu­ process of normalisation. tional product”.

1) See: “The legal situation in Turkey”, ICJReview, no. 26, June 1981, pp. 24—40. I. The Methods of (iv) the preparation of a draft constitu­ Institutionalisation tion by this Assembly, and its ap­ proval by the NSC which approved Three main themes deserve to be pre­ its final form with a few amendments sented in order to understand the charac­ of greater or less significance; teristic features of how the new institution­ (v) the presentation of the final project al framework was drawn up, namely the in­ for popular consultation, its accep­ stitutionalisation programme, the phenom­ tance and consecration as the new enon or act of constitutionalisation (consti­ constitution of the country; tutional referendum), and the nature of the (vi) the continuation of the military re­ real instituting power. gime which, through the NSC, con­ trols the legal and executive powers, and thus continues to promulgate (A) The institutionalisation new laws, etc.; programme (vii) the raising of the ban on political ac­ tivities, and the acceptance of new On the whole, democratic principles re­ political parties; quire that a transition towards or return to (viii) the preparation of elections in which democracy be carried out according to only parties and candidates “approv­ democratic logic and must, in general terms, ed” by the NSC could participate ensure (i) the creation of conditions for (see below, IV, B) and very soon af­ political and ideological pluralism and the terwards the restoration of the Parlia­ freedom to form political parties, (ii) the ment; its powers, especially those holding of parliamentary elections in con­ concerning the revision of the consti­ ditions of freedom and equality for all, be tution, being very much curtailed they voters or candidates, (iii) the establish­ (see below, III), and above all limited ment of a parliament composed of freely to a period of “transition” (see be­ elected representatives, and (iv) the draft­ low, IV). ing of a constitution by this parliament and its eventual submission to a referendum. It is to be noted, therefore, that the Such was the system used, with variousroad and the stages to normalisation in nuances, in some Mediterranean countries Turkey are fairly distant from the Mediter­ such as Portugal, Spain and Greece, in the ranean pattern and are closer to those 1970s. As far as the Turkish model is con­ adopted by some of the Latin American re­ cerned, the various stages were as follows: gimes when faced with the same problem of a “return to democracy”. (i) the dissolution of the parliament fol­ lowing the military take over; (ii) the prohibition of any form of polit­ (B) Ratification of the programme ical activity, especially by the exist­ and of the institutional project: ing parties, followed by the dissolu­ constitutional referendum tion of those parties; (iii) the convening of an Assembly whose The results of the constitutional referen­ members were appointed by the mili­ dum of 7 October 1982, when the people tary power and had a purely consul­ “expressed their approval of the Constitu­ tative status; tion” by an impressive majority (91% for, 9% against - with an electoral turnout of (ii) any propaganda to vote “no”, any 90%), established the formal and definitive criticism concerning the provisional validity of this text. It must be said that articles of the draft or of the speeches the referendum took place in a correct that General Evren was to give “in manner, without giving rise to serious irreg­ the name of the State” with a view ularities. to “making the public familiar with However, two reservations must be and informing it on the Constitu­ made. The first concerns the use, during tion”, were forbidden as soon as the the voting, of fairly transparent envelopes, final text was published2; a fact which must sometimes have com­ (iii) by joining together in a single popu­ promised the secrecy of the vote since the lar consultation both a constitutional voting papers were of different colours: referendum and a plebiscite designed white for yes, and blue for no. The second to designate the sole candidate for reservation is doubt less important. It con­ the Presidency of the Republic for cerns the difficulty of abstention. Those seven years, if the Constitution were who abstained lost their right to vote and approved, all this created an ambigu­ to be elected in the next legislative elec­ ity both for the voter and about the tions. This clause, written into the consti­ nature of the consultation itself; tution (provisional article 16) thus brought (iv) because of lack of prior information the system applied close to that of a com­ on how the problems caused by a pos­ pulsory vote. But it is true that a system sible rejection of the project would of compulsory voting cannot per se be be dealt with, the voter found him­ considered as a denial of democratic prin­ self faced by a dilemma. Paradoxical­ ciples. However, it is not enough to judge ly, anyone who voted “no”, in order, the character of the referendum and to for example, to express his disagree­ testify to its honesty in upholding legal ment with a project considered insuf­ norms and technicalities by reference only ficiently democratic, found himself, to the organisation of the poll. It is also in fact, opposing a transition towards necessary to consider and examine the normalisation and to some extent referendum in its whole political and legal opting to maintain the status quo and context. thus the military regime. In doing so, it will be seen that the ref­ erendum of 7 November 1982 suffers from certain faults which transformed this basi­ (C) The real institu ting power cally democratic institution and converted it in this case into a mere formality. Specif­ To conclude this section, the following ically: question must be asked: What is the real instituting power3 in Turkey since the (i) some of the Turkish politicians were military intervention? The answer must be deprived from the start of the right the National Security Council, and this for to give their views on the draft con­ several reasons in addition to those already stitution; mentioned above.

2) Communiques No. 70 and 71 of the NSC. 3) The term “instituting power” is used here in preference to “constituent power”, which is more technical and narrower. (i) the NSC arrogated to itself from the used popular consultation in order to have start the right to be able to revise the the constitution approved is no more than political and legal structure of the a formality. In reality it is the NSC which country, and among other things the deserves the name of the “real instituting right to alter the constitution, as is power”. shown by the “Law on the constitu­ tional order” which the Committee itself decreed4; II. The Content of the (ii) when the time came to give the coun­ Institutionalisation try a new constitution, the NSC did not share its “constituent” power What are the main features of the future with those elected by the nation, but Turkish regime as far as the “reorganisation only with the consultative Assembly of the State” and the “links between State whose members had themselves been and society”, as enshrined in the new Con­ nominated by the NSC. Thus, the stitution are concerned? NSC reserved to itself the right to shape the final draft; (iii) the draft constitution reflects fairly The internal reorganisation truthfully the new legal framework of the State formed by the laws and decrees pub­ lished by the NSC after 12 Septem­ The internal reorganisation of the State, ber 1980. It is thus the constitutional in the sense of the redistribution of roles consecration of the emergency legis­ within it, is first of all noticeable by its re­ lation produced by the NSC, as much inforcement of the executive, if not at the at the level of human rights as in the expense, at least to the detriment of the field of the reorganisation of the legislative power. First of all, contrary to State; the Constitution of 1961, which consider­ (iv) the NSC continued to make use of ed the executive as merely a function and both legislative powers (new laws on not a power of the State, the present Con­ political parties, elections, etc.) and stitution considers the executive not only executive powers (decrees, regula­ as a function but also as a power (Article 8). tions, etc.). It also intervened directly Moreover, the executive power is given an in the political life, particularly in extensive legislative power, contrary to the the electoral campaign (dissolution original text of the previous Constitution. of parties, screening applied to par­ Thirdly, to set in motion the process of dis­ ties and to candidates for election, solving the legislative assembly is made eas­ etc.). It continued therefore to mould ier in the new system (Article 116). the political and constitutional insti­ Strengthening of the executive also tutions by altering or even modifying stems from peculiarities of the new status constitutional provisions through laws granted to the President of the Republic. or decisions, examples of which have The President, elected for seven years by been mentioned. Parliament, has powers which he did not enjoy previously: those of watching over And so the fact that the military power the “proper functioning of State bodies”;

4) See the article “The legal situation in Turkey”, note 1, supra. making the inaugural speech to the Assem­ the members of the Council of State, etc., bly at the opening of the legislative year; are nominated by the President of the Re­ putting constitutional amendments to ref­ public (Article 104). Moreover, the powers erendum; convening and gathering under of reviewing the legality and constitutional­ his Presidency the Council of Ministers; de­ ity of their activities, exercised respectively ciding on the use of the armed forces; nom­ by the Council of State over the executive, inating the head of the General Staff; pro­ and by the Constitutional Court over Par­ claiming, together with the Council of Min­ liament, have been limited and reduced isters, a state of emergency; nominating the (Articles 125, 148, 150-153). members of the Council of Higher Learn­ What is the situation with regard to the ing; and nominating the Vice-Chancellors relationship between the “civil power” and of Universities as well as the Presidents of the “military power”? From the outset it the superior courts, such as the Constitu­must be underlined that the new constitu­ tional Court, the Supreme Military Admin­ tion does not explicitly confer on the Tur­ istrative Court, the Military Court of Ap­ kish armed forces a direct supervisory r61e peal and the Supreme Council of the Judi­ over the management of political and pub­ ciary, etc.( Article 104). In addition, among lic affairs, as does, for example, the Portu­ the functions of the President of the Re­ guese constitution. public, there are some that he can carry Nevertheless, two attempts at institu­ out without the agreement of the Prime tionalising the role of the army in the polit­ Minister or of the Ministers concerned. ical regime may be noted. The first relates Moreover, the exercise of these prerogatives to the adoption by the constitution of a cannot be questioned before the courts, “transition” period, during which the not even the Constitutional Court (Articles armed forces will be able to make their 105/2 and 125/2). weight felt and their choice known in the Another tendency apparent everywhere functioning of the political system (infra. within the executive is the disappearance IV). The second consists in keeping in exis­ of the autonomy of the Turkish radio and tence an institution already established television Governing Boards, as well as that since the 1961 constitution, but strength­ of the universities, in favour of the central ening its status and its r61e in the decision­ administration, which is highly centralised making process. This is the “Council of Na­ (Articles 130-133). tional Security" (not to be confused with As far as the relationship between the the National Security Council (NSC), the judicial power and the political organs of central body of the military regime since the state (i.e. the legislative and the execu­1980). tive) are concerned, one must note a cer­ The Council of National Security is a tain weakening of the judicial power in fa­ mixed body, made up of civilians (the Pres­ vour of the executive. To begin with, theident of the Republic, the Prime Minister judicial power, or rather the Superior and certain ministers) and members of the Courts, have lost some of their indepen­ armed forces (the Chief of the Staff, the dence, not to say have become totally de­ Commanders-in-Chief of the army, the air pendent on the executive. The judges of force and the navy, and the Commander-in- some of the Superior Courts, among them Chief of the gendarmerie). The Council those of the Constitutional Court, the mili­ participates in drawing up the “national tary Court of Appeal, the Supreme Military security policy” and to this end communi­ Administrative Court as well as a quarter of cates its advice and proposals to the Coun­ cil of Ministers. This advice, considered as and finally threatening power, it neverthe­ “consultative" in the previous Constitu­ less remains true that the constitutional re­ tion, becomes, in the present one, if not gime concerned is based, on the one hand, completely mandatory, at least deserving on a separation of the political powers (leg­ to “be taken in consideration with priori­ islative and executive), with the power of ty” by the Council of Ministers (Article control given to the first over the second 118). Moreover, the function of the Coun­ and, on the other hand, on the separation cil of National Security is now defined in and independence of the judiciary from the more ambiguous terms such as “the protec­ political power, all the more so when the tion (inter alia) of the peace and security judiciary possesses fairly effective powers of society”. These terms are generally used of review (of the legality and constitution­ in Turkish official if not scientific, termi­ ality) of those powers. nology as an equivalent to “political and Secondly: it must be admitted that social agreements", meaning the avoidance merely looking at the internal structure of of political and social demands considered the state does not enable one to get a global as excessive. view of its true nature. It is necessary to pursue the analysis into a related field, that in which the state is seen in its external re­ lations, i.e. in its relations with the national The picture just described shows the dis­ society and the individual. tance which the Turkish constituting pow­ er has thought fit to put between itself and the concept of liberal constitutionalism. Readjustment of the relations The divorce between the new tendencies between the state and society represented by the present constitution and the liberalism of the previous constitu­ It is in this area that the novel features tion is very evident. of the new Turkish constitution are most However, strictly speaking, one cannot to be criticised. For, while it recognises a assert that this type of state represents in satisfactory list of rights and freedoms, it itself and as such an antidemocratic model. nevertheless empties these of all their con­ There are two main reasons for this. tent by means of the prohibitions, excep­ First: it cannot be contended that a tions and restrictions which it contains. Its State becomes authoritarian and antidemo­ approach to freedom is on the whole as fol­ cratic by the fact that its constitution fa­ lows: vours the executive to the detriment of Parliament, that it adopts a semi-presiden- (i) The constitution is marked by its ex­ tial regime, that it advocates administrative cess of zeal in defending the state against centralisation, that it proceeds to a certain society, on the one hand, and the state erosion of the independence and powers of and/or society against the individual on the the judiciary, that it includes within the other hand. It permits an excessive curtail­ governmental institutions a body of the ment of freedom, by means of the concom­ nature of the Council of National Security, itant powers of intervention which it con­ etc. Though all these attempts indicate in fers upon the legislator, powers which ac­ their entirety and in the context of the cumulate to the point that they constitute country concerned, a fairly clear general a water-tight lid liable to stifle every aspira­ tendency toward the restoration of a strong tion to liberty. First, it enables the legisla­ tor, under a general clause, to restrict fun­ reasons for restrictions as envisaged in the damental rights and freedoms in order to regulation of these freedoms in law, lead ensure the “protection of the indivisible in­ one to think that the constituent power tegrity of the state with its territory and wishes to see an atomised society, made up nation, the national sovereignty, the Re­ of dispersed and isolated individuals. public, national security, public order, pu- This distrust of any form of association lic peace, the general interest, public moral­ in the life of society assumes a stranger ity and public health” (Article 13/1). This character when it deals withcollective so­ is a provision applicable to all rights and cial rights (to form a trade union, to strike, freedoms without exception or distinction etc.). The specific restrictions imposed on (Article 11/3). Secondly, the rights and the world of trades unions and labour ac­ freedoms can also be limited for the “spe­ quire on that account a purelyantisocial cial reasons” specified in the relevant arti­ character. cles (Article 13/1). Finally, the constitu­ tion forbids the abuse of rights and free­ (iii) The constitution is also marked by a doms in the following words: “None of the suspicion of “anything political”. The pro­ rights and none of the freedoms mentioned hibitions imposed on the formation of po­ in the present constitution can be used with litical parties, as well as on their activities the aim of threatening the indivisible integ­ are very revealing in this respect. For exam­ rity of the state with its territory and with ple, the prohibition of adopting statutes and the nation, of putting in danger the exis­ programmes incompatible with the indivisi­ tence of the Turkish state or of the Repub­ ble integrity of the state with its territory lic, of suppressing the fundamental rights and nation, of extolling and advocating the and freedoms, of entrusting the administra­ domination of one class or social group tion of the state to a single person or to a over others, of organising abroad, of form­ group of individuals, or of ensuring the ing women’s or youth sections, of creating domination of one social class over others, endowment funds (Article 68); of engaging or of creating distinctions between individ­ in activities going beyond their statute and uals because of their language, race, reli­ their programme, of transgressing the pro­ gion or sect, or of creating a state based on visions of Article 14 of the constitution these concepts and ideas” (Article 14)5. (see above), of making contact and collab­ The reader will thus appreciate the very orating politically with associations, trades narrow room for manoeuvre granted to an unions, endowment funds, cooperatives individual who has to “exercise his free­ and professional organisations of a public doms” under the constraints of these three nature or of receiving material aid from “safety belts”. them; of receiving orders or material help from foreign states or international organi­ (ii) The constitution also carries within it sations, associations or groups abroad, or of a still greater distrust of collective rights taking part in their activities and decisions (of meeting, of assembly, of association). aimed at undermining the “independence The vast number and the ambiguity of theand integrity” of Turkey (Article 69), etc.

5) Such language in earlier constitutions has been held by the Turkish Supreme Court to justify legis­ lation making it a criminal offence to publish anything in the Kurdish language, for Kurds to sing their national songs, and indeed for anyone to suggest that there is a Kurdish minority in Turkey — Editor. This same kind of visceral reaction with and secondary schools (Article 24/4); lim­ respect to politics also has repercussions in its on the very content of freedom of other fields under the heading of prohibi­ speech by Articles 13 and 14 of the consti­ tion of political activities “of any sort” im­ tution mentioned above, as well as by the posed on associations, trades unions, en­ principles set out in the Preamble (provi­ dowment funds, cooperatives as well as sions attempting to legitimise and constitu- professional organisations of a public na­ tionalise laws restricting freedom of expres­ ture (Articles 33, 52 and 135), The ban on sion which are found already in the prohi­ belonging to a political party for judges, bition of expressing or diffusing ideas in university teaching staff, students, mem­ “languages prohibited by law” (sic) (Arti­ bers of the armed forces, as well as civil ser­ cle 26/3 and Article 28/2); the constitu- vants (Article 68) comes within the same tionalisation of press, radio, television or category. film censorship (Article 26/1); the limita­ It can thus be noted that the constituent tion of scientific, academic and artistic power has adopted a concept of society freedom through constitutional provisions which is not only atomised or atomising, defining the form of the state (Article 1), but has also depoliticised or is depoliticis- the basic principles of the Republic (Arti­ ing the society. cle 2), the official language, the flag and the national anthem, the capital of the (iv) As far as so-called “individual rights state and that ensuring the integrity of the and freedoms” are concerned the constitu­ state (Article 3) as laid down in Article 27; tion does not show itself very well disposed the power to ban the selling of foreign towards them either. Already, in the article newspapers in the country (Article 2/3), devoted to the “inviolability of the per­ the adoption of indirect censorship of the son” (Article 17) one notes with bitterness press (Article 28/5); the banning of regular a quite unjustifiable derogation from the publications considered as a continuation right to life which clearly contradicts Arti­ of periodicals already banned (Article 28/ cle 2 of the European Convention of Hu­ 9), and the seizing and confiscating of man Rights: “Death is not considered as an printing shops and their outbuildings which act inflicted in violation” of the right to may have been used for committing certain life in the case when, inter alia, it results offences (Article 30). from "carrying out, in the case of a state of siege or emergency, orders given by the (v) The fragility of legal guarantees pro­ competent authorities”. tecting fundamental rights and freedoms The articles concerning the protection must at this point be underlined. This fra­ of privacy (Article 20), the inviolability of gility is due to several factors.First, the the home (Article 21) and freedom of cor­ executive is given the power to intervene in respondence (Article 22) give the police the nomination of judges (see above, II), the right to intervene, despite these free­ which, generally speaking, makes a mock­ doms, without a judicial warrant, simply ery of the guarantees given to judges to en­ on the orders of the administrative authori­ sure the independence of the judiciary (Ar­ ties, whenever a “delay could be considered ticles 138 and 139). Then, the creation of prejudicial to justice”. State Security Courts (Article 143) and en­ In the field of intellectual freedoms the larging the jurisdiction of military tribunals most glaring derogations are the following: in time of siege (Article 145), both pose se­ compulsory religious instruction in primary rious problems with regards to the legal guarantees which individuals should enjoy. (i) First of all there are provisions in the Finally, the Courts responsible for review­ Constitution which cannot be revoked; ing the constitutionality of the laws (the these cannot be amended, and their amend­ Constitutional Court) and the legality of ment cannot even be proposed (Article 4). administrative actions (the Council of They are the provisions dealing with the State) see themselves reduced to playing a republican form of the state (Article 1), more timid r61e in protecting the suprem­ with the basic principles of the Republic acy of the law (cf. above, II). Above all, (Article 2), with the principle of the indi­ the review of the constitutionality of laws visible integrity of the state with its terri­ concerning human rights becomes more tory and nation, with the official language, and more difficult due to the ambiguous the flag, the national anthem and the capi­ character of the concepts introduced to tal (Article 3). limit these rights (see above, (i)). A legisla­ tor little preoccupied by principles of liber­ (ii) Next come procedural rules for con­ ty will thus be able to justify his actions stitutional amendments. A revision of the by relying on these vague terms and escape Constitution cannot be proposed by less all judicial control by the Constitutional than a third of Parliament and must be Court. adopted by two-thirds of the Parliament. Secondly, the President of the Republic is endowed with new powers in the event of constitutional revision, namely, those of All these measures correspond to a asking Parliament to re-examine the draft search for a “strong state at any price” amendment and, if the Parliament insists even if it means undermining free develop­ on maintaining its position, of submitting ment and fulfillment of society and of the the proposal to a referendum (Article 175). individual. This tendency is revealed very Moreover, for a period of 6 years from the clearly in the term: “the sacred state of opening of Parliament, a qualified majority Turkey”, inserted in the Preamble of the of three-quarters is required in order for Constitution. “The state made sacred” to Parliament to readopt the draft amend­ the detriment of the “sacrified” society or ment if the President demands a re-exami­ individual thus make up the two different nation (Provisional Article 9). panels of the constitutional diptych. (iii) Political life is surrounded by a series of prohibitions and constitutional sanc­ III. Consolidating the System tions which allow for a very limited field of action concerning attempts to look into The constitutional framework, the char­ other possible constitutional models which acteristics of which have thus been defined, could be envisaged within the framework is strongly protected against initiatives for of a liberal democracy. The restrictions on revisions considered incompatible with the the statutes and activities of political par­ basic tenets which the constituent power ties are a proof of this (see above, II). has decided upon. These means of defence are found both at the level of the state bo­ (iv) The restrictions imposed on intellec­ dies, and at the level of non-governmental tual life of associations or trades unions, political institutions and organisations and and thus on society and the individual, can of society in general. also be seen as barriers erected against any attempt at organising support for new ideas the Republic” (Provisional Article 1) as a and constitutional proposals. As has already result of the link between the constitution­ been noted, intellectual freedoms are lim­ al referendum and the plebiscite which ited by the provisions of the constitution, brought him, as the one and only candi­ and associations and trades unions are date, to this office. He has all the functions strictly forbidden to engage in political ac­ and prerogatives of an elected President tivities, whatever their nature (see above, II).(Provisional Article 1). Moreover, he is, for To the above restrictions must be added six years, given a very powerful right of those laid down in the Preamble to the veto which enables him to block any con­ Constitution which stipulate that “noidea stitutional amendment which he would not or consideration be given protection if it consider as opportune (Provisional Article goes against Turkish national interests, 9, see III above). Moreover, he assumes at against the principle of the existence of the same time the Presidency of the NSC Turkey as an indivisible entity with its until this becomes the “Council of the State and territory, against the historical Presidency of the Republic” (Provisional and moral values of Turkey, against the Article 1/2). doctrine of Atatiirk... (Preamble, para. 7). This statement is reinforced by the duty to (ii) The NSC, which continues to func­ “absolute loyalty” to the constitution (Pre­ tion (Article 2.1) and exert its “legislative amble, para. 10). and executive” powers until Parliament is convened and set up its own Presidential Office (Provisional Article 15/1), becomes for six years from that date a “Council of IV. Legal and Political Framework the Presidency of the Republic (Provisional of the “Transition” Article 2/3). This Council will be responsi­ ble for examining draft laws passed by Par­ The process of a “return to democracy” liament and submitted for approval of the entails another and new stage which must President of the Republic”. The Council follow the elections and the convening of will give its advice on questions relating to Parliament. For, a “regime of transition" the dissolution of Parliament, on the use of regime is to be found both in the provision­ emergency powers, on the administration al measures in the constitution and in re­ of radio and television, on the education of cent decrees of the NSC concerning politi­ young people and on the administration of cal parties and electoral procedures. the Board of Religious Affairs. It will carry out research and investigation into prob­ lems concerning internal and external secu­ (A) Provisional articles rity, as well as into any other questions in the Constitution submitted to it by the President of the Re­ public (Provisional Article 2/4). The mem­ These articles, of which there are 16, bers of this Council enjoy the same advan­ outline the constitutional framework of tages and immunities as parliamentarians the “regime of transition” and present the (Provisional Article 2/3) and are exempt following characteristics: from any criminal, fiscal or civil proceed­ ings concerning the exercise of their office (i) The President of the Republic is not as from the date of the military interven­ elected, but is “designated" as President of tion (Provisional Article 15/1). r

(iii) The Constitution also provides for being represented in Parliament. Moreover, the maintenance of emergency legislation. the Constitution already prohibits political It stipulates that the laws, decrees, deci­ activities by former politicians for periods sions and all actions decided upon by the of 5 to 10 years. But the NSC, resolved to SNC in the period preceding the convening fight energetically these two “evils” and of Parliament and the setting up of its Pres­ apparently dissatisfied with the existing idential office cannot be questioned before barriers, set about defining more precisely the Constitutional Court (Provisional Arti­ the field of political “rivalries”: cle 15/3). These emergency measures, com­ ing as they do from a non-constitutional (i) The NSC showed its determination body, constitute an enormous number of to prevent any attempt at going back and supra-constitutional norms. This is incom­ “returning to the past” by decreeing on 31 patible with the principle of the supremacy May 1983 the dissolution of the Party of of the Constitution. Great Turkey which it accused of “prolong­ ing the existence and philosophy of a for­ mer dissolved party”, an illusion7 to the (B) Political parties and elections Party of Justice led by Mr. Demirel.

The NSC had, on 16 October 1981, dis­ (ii) Control over the elections appeared banded all the then existing political par­ in various ways. To begin with, the Consti­ ties. After the adoption of the new Consti­ tution had already imposed prohibitions tution and of the law on political parties, against political activity on some of the the NSC authorised the creation of new po­ former politicians (Provisional Article 5). litical parties. But the appearance, within a The NSC arrogated to itself, by means of fairly short time, of a dozen new political laws which it itself drafted, the power to groups some of which did not hide their decide on the participation or non-partici­ links with former disbanded parties, soon pation of the political parties. The electoral aroused indignation in military circles, as is campaign, thus closed to the non-approved shown in the speeches of General Evren6. parties, was open to only three parties, at The military leaders were afraid on the one least two of which are completely military hand that the “inflation” (Evren) of parties in their outlook. Finally, the NSC assumed would endanger political stability and, on the right to approve the electoral lists, and the other hand, that the reappearance on disqualified a fair number of candidates the political stage of former politicians, whom it considered undesirable. even if acting through other people, would provoke a “return to the past”. In fact, there was little justification for these fears. For the electoral law, putting Thus, on 6 November, in a country up barriers of 10% both at the level of elec­ throughout which martial law continued to toral constituencies and at the national lev­ be in force, the seats in Parliament were al­ el, only enables the development of two or located between the candidates ’ of three three parties and prevents the others from “approved” parties and a few independents

6) Speeches in Giresun, Bilecik, Kiitahya and Kirsehir, reported in the Turkish press of 20 June and 4 and 24 July 1983. 7) Decision No. 79 of the NSC of 1 May 1983. who had not been disqualified, all the can­ The second contradiction focuses on the didates being in any case “selected” by the political institutions themselves. It results NSC. in a latent tension between the acknow­ ledged weight of the “de facto powers” and the weakness of those “elected” by the nation. The “screening” applied to the first Problems legislative assembly can lessen its range. But it can also lead in the near future to a Three contradictions inherent in this conflict between the President of the Re­ way of “restructuring democracy" deserve public and Parliament, if Parliament de­ to be highlighted. cides to lay claim to its powers. The first is at the level of the relation­ Finally, the new powers given to the ships between the political institutions and President of the Republic, contrary to Tur­ society. It is permissible to ask the follow­ kish republican tradition, can create misun­ ing question: Does not an institutional derstandings between him and Parliament, framework so restrictive of freedoms and in such a way as to have an adverse effect of participation, run the risk of leading to a on its relations with the Government. This conflict between the institutions of govern­ conflict is in danger of becoming graver if ment and the society, and ending up with a the President and Parliament are not of the political and constitutional crisis? same political outlook. BASIC TEXT

A/RES/37/194

Resolution 37/194 Adopted by the General Assembly on 18 December 1982

Principles of Medical Ethics

The General Assembly... Desirous of setting further standards in this field which ought to be implemented by health person­ nel, particularly physicians, and by Government officials, 1. A dopts the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment set forth in the annex to the present resolution; 2. Calls upon all Governments to give the Principles of Medical Ethics, together with the present resolution, the widest possible distribution, in particular among medical and paramedical associations and institutions of detention or imprisonment in an official language of the State; 3. Invites all relevant inter-governmental organizations, in particular the World Health Organiza­ tion, and non-governmental organizations concerned to bring the Principles of Medical Ethics to the attention of the widest possible group of individuals, especially those active in the medical and para­ medical field.

Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment

Principle 1 Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of dis­ ease of the same quality and standard as is afforded to those who are not imprisoned or detained.

Principle 2 It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.1 Principle 3 It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to eval­ uate, protect or improve their physical and mental health.

Principle 4 It is a contravention of medical ethics for health personnel, particularly physicians: (a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and de­ tainees in a manner that may adversely affect the physical or mental health or condition of such pris­ oners or detainees and which is not in accordance with the relevant international instruments;2 (b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant interna­ tional instruments.

Principle 5 It is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accor­ dance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental health.

Principle 6 There may be no derogation from the foregoing principles on any grounds whatsoever, including public emergency.

1) See the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly Resolution 3452 (XXX), annex), article 1 of which states: “ 1. For the purpose of this Declaration, torture means any act by which severe pain or suffer­ ing, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or inciden­ tal to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treat­ ment of Prisoners. “2. Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treat­ ment or punishment.” Article 7 of the Declaration states: “Each State shall ensure that all acts of torture as defined in article 1 are offences under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture.” 2) Particularly the Universal Declaration of Human Rights (General Assembly resolution 217 A (III)), the International Covenants on Human Rights (General Assembly resolution 2200 A (XXI), an­ nex), the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly resolution 3452 (XXX), annex) and the Standard Minimum Rules for the Treatment of Prisoners (First United Nations Congress on the Prevention of Crime and the Treatment of Offenders: report by the Secretariat (United Nations publication, Sales No. 1956.IV.4), annex I.A). MEMBERS OF THE INTERNATIONAL COMMISSION OF JURISTS

KEBA MBAYE Judge of Int’l Court of Justice; former Pres. Supreme (President) Court, Senegal, and UN Commission on Human Rights ROBERTO CONCEPCION Former Chief Justice, Philippines (Vice-President) HELENO CLAUDIO FRAGOSO Advocate; Professor of Penal Law, Rio de Janeiro (Vice-President) JOHN P. HUMPHREY Prof. of Law, Montreal; former Director, UN Human (Vice-President) Rights Division ANDRES AGUILAR MAWDSLEY Prof. of Law, Venezuela; former Pres. Inter-American Commission BADRIA AL-AWADHI Dean, Faculty of Law and Sharia, Univ. of Kuwait ALPHONSE BONI President of Supreme Court of Ivory Coast WILLIAM J. BUTLER Attorney at law, New York HAIM H. COHN Former Supreme Court Judge, Israel TASLIM OLAWALE ELIAS Pres., Int’l Court of Justice; former Chief Justice of Nigeria ALFREDO ETCHEBERRY Advocate; Professor of Law, University of Chile GUILLERMO FIGALLO Former Member of Supreme Court of Peru LORD GARDINER Former Lord Chancellor of England P. TELFORD GEORGES Chief Justice of Zimbabwe LOUIS JOXE Ambassador of France; former Minister of State P.J.G. KAPTEYN Councillor of State, Netherlands; former Prof. of Int’l Law KINUKO KUBOTA Former Prof. of Constitutional Law, Japan RAJSOOMER LALLAH Judge of the Supreme Court, Mauritius TAI-YOUNG LEE Director, Korean Legal Aid Centre for Family Relations SEAN MACBRIDE Former Irish Minister of External Affairs RUDOLF MACHACEK Member of Constitutional Court, Austria J.R.W.S. MAWALLA Advocate of the High Court, Tanzania FRANCOIS-XAVIER MBOUYOM Director of Legislation, Ministry of Justice, Cameroon FALI S. NARIMAN Advocate, former Solicitor-General of India NGO BA THANH Member of National Assembly, Vietnam TORKEL OPSAHL Prof. of Law, Oslo; Member of European Commission GUSTAF B.E. PETREN Judge and Deputy Ombudsman of Sweden SIR GUY POWLES Former Ombudsman, New Zealand SHRIDATH S. RAMPHAL Commonwealth Secr.-Gen.; former Att.-Gen., Guyana DON JOAQUIN RUIZ-GIMENEZ Prof. of Law, Madrid; Defender of the People (Ombuds­ man) of Spain TUN MOHAMED SUFFIAN Lord President, Federal Court of Malaysia CHITTI TINGSABADH Advocate; Prof. of Law; former Supreme Court Judge, Thailand CHRISTIAN TOMUSCHAT Professor of Int’l Law, University of Bonn MICHAEL A. TRIANTAFYLLIDES Pres. Supreme Court, Cyprus; Member of European Com­ mission AMOS WAKO Advocate, Kenya; Secr.-Gen., Inter African Union of Lawyers J. THIAM HIEN YAP Attorney at Law, Indonesia

HONORARY MEMBERS

Sir ADETOKUNBO A. ADEMOLA, Nigeria HANS HEINRICH JESCHECK, Federal ARTURO A. ALAFRIZ, Philippines Republic of Germany DUDLEY B. BONSAL, United States JEAN FLAVIEN LALIVE, Switzerland ELI WHITNEY DEBEVOISE, United States NORMAN S. MARSH, United Kingdom PER FEDERSPIEL, Denmark JOSE T. NABUCO, Brazil T.S. FERNANDO, Sri Lanka LUIS NEGRON FERNANDEZ, Puerto Rico ISAAC FORSTER, Senegal Lord SHAWCROSS, United Kingdom W.J. GANSHOF VAN DER MEERSCH, EDWARD ST. JOHN, Australia Belgium MASATOSHI YOKOTA, Japan SECRETARY-GENERAL

NIALL MACDERMOT States of Emergency — Their Impact on Human Rights A comparative study by the International Commission of Jurists, 1983. Available in english (ISBN 92 9031 019 X). Swiss Francs 40 or US$ 19.50, plus postage. This 480-page publication contains detailed studies on states of emergency in 20 countries during the 1960s and 1970s, a summary of the replies to two question­ naires sent to 158 governments, and an analysis of this material by the staff of the ICJ, followed by a set of recommendations. The country studies on Argentina, Ca­ nada, Colombia, Eastern Europe (Czechoslovakia, German Democratic Republic, Hungary, Poland, USSR, Yugoslavia), Greece, Ghana, India, Malaysia, Northern Ire­ land, Peru, Syria, Thailand, Turkey, Uruguay and Zaire are based on papers prepared by experts, mostly from the countries concerned. The two questionnaires related to the law and practice under states of exception, and administrative detention. The concluding chapter of general observations and conclusions is followed by 44 rec­ ommendations for implementation at international and national levels. ★ ★ ★ Rural Development and Human Rights in South East Asia Report o f a Seminar in Penang, December 1981. Published jointly by the ICJ and the Consumers' Association of Penang (CAP) (ISBN 92 9037 01 7 3). Available in english, Swiss Francs 10, plus postage. Ways in which human rights of the rural poor can be adversely affected by pro­ cesses of maldevelopment are illustrated with a wealth of detail in this report. The 12 working papers on such topics as land reform, participation in decision-making, the role and status of women and social and legal services are reproduced in full along with the important conclusions and recommendations of the seminar. ★ ★ ★ Human Rights in Islam Report of a seminar in Kuwait, Geneva, 1982, 95 pp. Available in english (ISBN 92 9037 014 9) and french (ISBN 92 9037 015 7), Swiss Francs 10, plus postage. The purpose of this seminar was to provide a forum for distinguished moslem law­ yers and scholars from Indonesia to Senegal to discuss subjects of critical impor­ tance to them. It was organised jointly with the University of Kuwait and the Union of Arab Lawyers. The Conclusions and Recommendations cover such subjects as economic rights, the right to work, trade union rights, education, rights of minori­ ties, freedom of opinion, thought, expression and assembly, legal protection of human rights and women’s rights and status. Also included are the opening ad­ dresses, a key-note speech by Mr. A.K. Brohi and a summary of the working papers. ★ ★ ★ Civilian Administration in the Occupied West Bank by Jonathan Kuttab and Raja Shehadeh. Ananalysis of Israeli Military Government Order No. 947, 44 pp. Published by Law in the Service of Man, West Bank affiliate of the ICJ. Swiss Francs 8, plus postage. This study examines the implications of the establishment of a civilian administrator to govern the affairs of the Palestinian population and Israeli settlers in the West Bank. Questions of international law and the bearing of this action on the course of negotiations over the West Bank’s future are discussed.

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