Document - UN Human Rights Council, Thirteenth Session, 1-26 March 2010: Amnesty International written statements
Amnesty International submitted the following written statements to the thirteenth session of the UN Human Rights Council, which will take place in Geneva from 1 to 26 March 2010.
ITEM 2: ANNUAL REPORT OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS1
Amnesty International expresses its continued appreciation of the work of the Office of the UN High Commissioner for Human Rights in Colombia to improve respect for human rights and international humanitarian law in the country. Amnesty International also supports the renewal of the Office’s mandate when its current mandate expires at the end of October 2010.
This statement presents an overview of Amnesty International’s concerns in Colombia.
ARMED CONFLICT AND HUMAN RIGHTS ABUSES
The human rights and humanitarian situation in Colombia continues to be serious with civilians still bearing the brunt of the country’s long-running internal armed conflict. The security forces, paramilitaries and guerrilla groups continue to be responsible for serious human rights abuses and violations of international humanitarian law and to disregard the fundamental right of civilians not to be dragged into the conflict.
The human rights picture in the country presents some positive and several negative features.2 Compared to 2008, in 2009 fewer civilians were extrajudicially executed by the security forces or kidnapped by guerrilla groups and criminal gangs. Forced displacement again increased – albeit at a slower rate than in 2008 – as did the killing of members of marginalized social groups and Indigenous Peoples. Threats against human rights defenders and other activists continue unabated. Many witnesses to killings and survivors of serious human rights abuses and their families are threatened and killed. Other human rights abuses and breaches of international humanitarian law include sexual violence, enforced disappearances, forced recruitment of minors, indiscriminate attacks against civilians, and the use of land mines.
Paramilitaries continue to operate in many parts of the country, sometimes in collusion with sectors of the security forces, despite government claims that paramilitary groups have all demobilized. These groups have in fact become more organized. While the government claims that violence attributed to these groups is solely drug-related and criminal in nature, the tactics employed by these groups to terrorize the civilian population, such as death threats and massacres, reflect those used prior to their so-called demobilization. Human rights defenders and other activists are particularly targeted by such groups.
The Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN) guerrilla groups continue to commit serious human rights abuses and breaches of international humanitarian law, including killings, hostage-taking, the recruitment of children as combatants, and the use of land mines. The kidnapping and killing of the governor of Caquetá Department, Luis Francisco Cuéllar, in December 2009, and the killing of 15 Awá Indigenous People, including two pregnant women, in February 2009, illustrate the FARC’s failure to respect the right of civilians not to be drawn into the conflict.
Violence is again increasing in some cities. This rise in urban violence is linked to the armed conflict, drugs-related crime and acts of “social cleansing”. Paramilitaries are increasingly seeking to assert social control over poor communities in urban areas, through threats and killings. The victims include young people, sex workers, drug addicts, petty criminals, the homeless, lesbian, gay, bisexual and transgender (LGBT) people, and human rights defenders. In rural areas, the main victims of human rights abuses continue to be Indigenous People, and members of Afro-descendant and peasant farmer (campesino) communities, and their leaders.
THE COLOMBIAN AUTHORITIES’ RESPONSE TO SPECIFIC HUMAN RIGHTS CONCERNS
Amnesty International welcomes the invitations extended by the Government in 2009 to four Special Procedures. Their visits and reports represent an important opportunity for the UN system to hear victims’ testimonies directly and to discuss the human rights situation with Colombian human rights organizations and other representatives of civil society.
Amnesty International also welcomes the commitments made by the Government under the Universal Periodic Review (UPR) and its decision to report back on implementation. The organization urges the Government to report on concrete results achieved in efforts to implement these commitments. AI recommends that a process with deadlines and milestones be put in place to evaluate fulfilment of these commitments and compliance with all UN recommendations.
Amnesty International views as positive the steps taken by the Government to address the long-standing problem of extrajudicial executions (EJEs) by the security forces following the outcry that ensued after the Soacha killings in 2008. Such steps contributed to a reduction in the number of EJEs attributed to the security forces in 2009, but concerns remain that, as in the past, this might lead to a corresponding increase in killings by paramilitary groups.
Impunity: While Amnesty International acknowledges that there have been steps forward in some criminal investigations in key human rights cases – largely due to the work of judicial institutions such as the Supreme Court of Justice – progress has been slow. The vast majority of cases of human rights abuses are characterized by complete impunity. Amnesty International is also increasingly concerned for the safety of witnesses, victims’ families, lawyers, prosecutors, and judges involved in some high-profile human rights-related investigations. These include:
The DAS scandal. The massive, long-standing, illegal espionage operation carried out by the civilian intelligence service (Departamento Administrativo de Seguridad, DAS), which operates under the direct authority of the President, against human rights defenders and others led to threats against and killings by paramilitary groups of some of those targeted. Other activists who were subjected to illegal surveillance, particularly those involved in bringing human rights cases before the courts, continue to be subjected to unfounded criminal investigations and accusations linking them to guerrilla groups. This has placed them at risk of attack and undermined their work against impunity. Amnesty International welcomes the decision to charge seven former DAS officials and a former director in connection with the scandal, but stresses that questions remain over who ordered the illegal espionage operation and over whether such surveillance continues.
The “parapolitics” scandal. Some 80 Members of Congress are under criminal investigation by the Supreme Court of Justice for their alleged links to paramilitaries. However, the government has repeatedly sought to undermine the legitimacy of the Supreme Court. Several magistrates investigating the case have been threatened, placed under surveillance and have had their communications intercepted by State institutions. The Inter-American Commission on Human Rights has ordered the Colombian state to adopt protection measures for several Supreme Court magistrates.
Extrajudicial executions. Criminal investigations into some 2,000 extrajudicial executions carried out by the security forces continue to be undermined. In January 2010, around 30 soldiers arrested for their alleged role in the 2008 Soacha killings were released by the courts on procedural grounds. Resistance by the military justice system to accept civilian jurisdiction in these cases, and the decision by the Council of State to suspend a 2006 agreement between the Attorney General and the Defence Ministry under which civilian rather than military investigators were responsible for removing corpses from the scenes of alleged extrajudicial executions, will undermine the fight against impunity. Lawyers working on these cases, and witnesses and family members of those executed, continue to be threatened or killed.3
The Justice and Peace process. Although some paramilitaries have confessed to some human rights violations and implicated other persons active in politics, business and the military, the Justice and Peace process still falls short of international standards on the rights of victims to truth, justice and reparation. Some 90% of those who demobilized escaped effective investigation. Most of the 18 paramilitary leaders extradited to the USA on drugs-trafficking charges have refused to collaborate with the Colombian justice system in its investigations into human rights violations. Colombian judicial officials have experienced difficulties in gaining access to the few paramilitaries who have agreed to co-operate. Victims or their families participating in the process, their lawyers and those supporting their campaigns for justice as well as judicial officials investigating cases in the Justice and Peace process have been threatened or killed.
Indigenous Peoples: The impact of the conflict on Indigenous Peoples has become increasingly destructive. More than 114 Indigenous men, women and children were victims of homicides in 2009. High-ranking Government and other state officials continue to make statements linking Indigenous leaders and the communities they represent with guerrilla groups. This has encouraged a climate in which abuses against Indigenous Peoples are tolerated, encouraged or facilitated.
During his visit to Colombia in July 2009, the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people described the human rights situation facing Indigenous Peoples as “grave, critical and profoundly worrying.”4 He called on the illegal armed groups to stop the recruitment of Indigenous children and the use of landmines, and he expressed concern about human rights violations committed by the security forces. While acknowledging there had been some progress on Indigenous issues, he said that the country’s laws, government policies and programmes had failed to effectively protect Indigenous People and to safeguard their fundamental freedoms and human rights.
In a ruling on Indigenous Peoples issued in January 20095, the Constitutional Court criticized the inadequacy of the state’s response to the problems faced by Indigenous Peoples in Colombia. The Court gave the Government six months to devise and implement a plan to guarantee the rights of displaced and endangered Indigenous Peoples. More than one year after that ruling, there is little evidence that effective progress has been made in this respect.
Amnesty International welcomes the recent decision by the Office of the Attorney General to charge seven members of the security forces for their alleged role in the killing of Edwin Legarda, the husband of Indigenous leader Aída Quilcué, in December 2008. Amnesty International also welcomes Colombia’s decision to endorse, in 2009, the UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007.
Human rights defenders: Human rights defenders – from national and local NGOs – and their families; community leaders; leaders of Indigenous Peoples and Afro-descendant and campesino communities; trade unionists; student and LGBT activists; victims campaigning for justice and their families; lawyers; and journalists continue to be killed, abducted and subjected to enforced disappearance, threatened, stigmatized, harassed, arbitrarily detained, placed under surveillance, or have their offices broken into and sensitive case information stolen.
A climate of hostility towards human rights defenders and other activists exacerbates the ongoing serious situation they face. Such hostility has been fomented by the Government, which appears to perceive human rights and security as mutually exclusive. Senior Government and state officials often seek to equate human rights work with support for the guerrilla or terrorism. Such a systematic, high-profile and public stigmatization has given a powerful incentive to those wishing to threaten and physically harm human rights defenders.
Amnesty International’s concerns on the situation of human rights defenders are further detailed in a written statement on the report of the Special Rapporteur on human rights defenders on Colombia submitted to this session of the Human Rights Council.
ITEM 3: PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS6
Amnesty International has submitted to the 13th session of the Human Rights Council a written statement presenting an overview of Amnesty International’s concerns with human rights in Colombia. The following statement provides further information on the serious situation faced by human rights defenders in the country.
Amnesty International welcomes the Government’s invitation to the UN Special Rapporteur on human rights defenders, Margaret Sekaggya, to visit to Colombia in 2009.
Amnesty International shares the Special Rapporteur’s many concerns with respect to the serious situation still faced by human rights defenders and other activists in the country,7 and looks forward to the presentation of her report on the visit to the Council’s 13th session. The Special Rapporteur’s recommendations can provide a blue-print for effective measures to be taken at the legislative, administrative and policy levels to improve the situation.
Amnesty International urges the Colombian government to act promptly on the Special Rapporteur’s recommendations and to provide information to the Human Rights Council at its 13th session on how it plans to act on them and about when it will report to the Council on their implementation.
THE CURRENT SITUATION OF HUMAN RIGHTS DEFENDERS
In Colombia, human rights defenders have long played a pivotal role in denouncing abuses and supporting victims, but they continue to pay a heavy price for carrying out their legitimate work.
Because of their work, human rights defenders and members of their families continue to be killed, abducted and subjected to enforced disappearance, threatened, stigmatized, harassed, arbitrarily detained, placed under surveillance, or have their offices broken into and sensitive case information stolen. Other people associated with criminal investigations into emblematic human rights cases, such as witnesses, prosecutors, lawyers and judges, also continue to be threatened or killed.
Over the last few years there has been a worrying increase in the use of death threats against human rights defenders. These are attributed mostly to paramilitary groups, but also to state agencies. Reports of the participation of state agencies, such as the civilian intelligence service (Departamento Administrativo de Seguridad, DAS) – which answers directly to the President – in death threats against and harassment of human rights defenders is an issue of serious concern to Amnesty International. The increasing use of death threats has created a growing climate of fear in the human rights community across Colombia. Those receiving threats include a broad spectrum of human rights groups and individual activists. Individuals campaigning for justice – such as the mothers of more than a dozen young men from Soacha extrajudicially executed by the security forces in 2008 and those seeking the return of lands stolen from them by paramilitary groups – also continue to be threatened, harassed or killed.8
Local activists standing up for their communities in remote and often inaccessible rural areas are often at even greater risk of attack than those in the cities. In particular, all of the parties to the armed conflict have killed many leaders of so-called Community Action Councils (Juntas de Acción Comunal, JAC). Members of JACs are elected to their positions by local community members. They act as spokespeople and leaders for the community, manage limited state funds for local projects (which the various factions often wish to control) and are often the first point of contact for victims of human rights abuses. Their leadership role in communities that are often located in areas under the control of one or another armed group makes them vulnerable to accusations of collaboration with one or the other side.
The DAS scandal. In April 2009, the media revealed that the DAS had been carrying out a long-standing, massive, illegal espionage operation – including surveillance and wiretapping – targeting human rights defenders, opposition politicians, judges and journalists. Members of the diplomatic community and the UN and foreign human rights groups were also targeted. The operation was carried out in co-operation with paramilitaries, who threatened and killed some of those targeted by the DAS. Intelligence from civilian and military security agencies (including from the DAS) is widely used to mount unfounded criminal proceedings against human rights defenders. Amnesty International shares the Special Rapporteur’s concern that such surveillance and wiretapping may be continuing.
At least three of the national human rights NGOs systematically targeted by the DAS – the Inter-Church Justice and Peace Commission (Justicia y Paz), the José Alvear Restrepo Lawyers’ Collective (CCAJAR) and the Colombian Commission of Jurists – have been actively involved in bringing emblematic human rights cases before the Colombian courts and the Inter-American human rights system. Numerous unfounded criminal investigations have for years sought to link members of Justicia y Paz to guerrilla groups. In the case of CCAJAR, senior Government officials have repeatedly sought to link some of its staff to guerrilla groups. Such stigmatization, together with long-standing DAS surveillance of these organizations, has placed many of their staff at high risk of attack and has undermined their work to combat impunity.
Amnesty International has been particularly concerned at the fact that the DAS was the agency responsible for providing security measures, such as bodyguards, to human rights defenders and others activists. Responsibility for the provision of security measures has now largely been transferred to private security firms. However, Amnesty International has had long-standing concerns about the participation of paramilitaries in such firms.
In 2009, the Government announced it would disband the DAS. In March 2009, Congress approved an Intelligence Law that will outlaw intelligence gathering on individuals on the grounds of their political affiliation or membership of a trade union or social or human rights organization. In September 2009, a decree implementing the Intelligence Law ordered a review of intelligence files compiled on those grounds by all the security services. Amnesty International urges the Government to ensure that this review will prove more effective than previous ones.
The Government’s protection programme for human rights defenders. Responding to international pressure, successive Colombian governments have sought to improve the safety of human rights defenders through a variety of measures co-ordinated by the Protection Programme for Human Rights Defenders of the Ministry of the Interior and Justice. Measures have included the provision of bodyguards, armour plated vehicles and mobile telephones.
Amnesty International welcomes any measures to protect human rights defenders that are in line with what those under threat deem to be appropriate. However, the Special Rapporteur on the situation of human rights defenders has noted that there are problems with this Programme, and she has made several recommendations in the context of the reform of this Programme.9
Amnesty International has highlighted how protection measures have sometimes been withdrawn or restricted arbitrarily, even at times of heightened security risk for the individuals concerned. Budgetary constraints are often used by the authorities to justify these restrictions. Amnesty International believes that claims of financial constraints should not be used to justify the withdrawal of protection from human rights defenders or others under threat.
Amnesty International also emphasises that physical protection measures are not sufficient on their own. The UN Declaration on Human Rights Defenders10, for example, calls not only for practical protection measures, but also for comprehensive measures aimed at preventing violations and addressing the root causes of violations, such as impunity.
Hostile climate for human rights work. The serious situation facing human rights defenders is exacerbated by a climate of significant hostility from some sectors of the Colombian State.
Such hostility has been fomented by the Government, which appears to perceive human rights and security as mutually exclusive. Senior Government and State officials often seek to equate human rights work with support for the guerrilla or terrorism. Such a systematic, high-profile and public stigmatization has given a powerful incentive to those wishing to threaten and physically harm defenders.
Amnesty International has been particularly concerned about a media campaign, in Colombia and internationally, to discredit Colombian and international human rights NGOs and the communities they work with and support, by falsely claiming they are linked to guerrilla groups. The organizations affected include Justicia y Paz and the Afro-descendant communities of the Curvaradó, Jiguamiandó and Cacarica river basins which Justicia y Paz works with and supports; the Peace Community of San José de Apartadó and individuals associated with it; and the international NGO Peace Brigades International, which physically accompanies some of these communities.
Amnesty International welcomes the Government of the Democratic Republic of Congo (DRC)’s invitation to the UN Special Rapporteur on human rights defenders, Margaret Sekaggya, to visit the country in 2009.
Amnesty International shares the Special Rapporteur’s concerns with respect to the situation of human rights defenders in the DRC,11 and encourages the Human Rights Council to give her report on the visit12 careful attention. The Special Rapporteur’s recommendations can provide the basis for effective measures to be taken at the legislative, administrative and policy levels to improve the situation of human rights defenders in the DRC. Amnesty International urges the DRC government to act promptly on the Special Rapporteur’s recommendations and report back to the Human Rights Council on measures taken.
THE CURRENT SITUATION OF HUMAN RIGHTS DEFENDERS IN THE DRC
Human rights defenders in the DRC play a crucial role in drawing attention to human rights abuses, but intensifying harassment makes it increasingly difficult for them to carry out this important work.
Congolese human rights defenders have told Amnesty International that harassment and arrests directed towards them increased sharply throughout 2009. Similarly, UN observers reported a sharp increase in cases of harassment and arrests of human rights defenders in 2009. Many human rights defenders are detained simply because they speak out on behalf of others. Amnesty International’s briefing “Human Rights Defenders under attack in the Democratic Republic of Congo” documents the persecution faced by eight prominent human rights defenders in the DRC, harassment the organization fears will intensify in the build-up to 2011 presidential and national elections.
Human rights defenders in the DRC face many challenges. Some law enforcement officers are neither professional nor impartial, and they do not always act within the law. As the Special Rapporteur noted after her country visit, trials are not always fair. The criminal justice system is marred by political interference, corruption, lack of capacity and instability in some parts of the country. State officials commit human rights violations with almost total impunity.
Amnesty International shares the Special Rapporteur’s concern for the ongoing stigmatization of human rights defenders. Instead of addressing human rights concerns, DRC officials at the national and provincial levels continue to attack the organizations that raise them. For example, in July 2009 the Minister for Media and Communications and government spokesperson, Lambert Mende, accused national human rights NGOs of seeking to destabilize a democratically elected government.
The National Intelligence Agency (ANR), which is directly controlled by the Presidency, is frequently implicated in abuses against human rights defenders. The ANR arrests not only criminal suspects but also human rights defenders and members of the political opposition. In many cases the ANR has denied detainees access to lawyers. Amnesty International continues to receive regular reports of torture and other ill-treatment in ANR detention facilities. Robert Ilunga, a community advocate and head of a human rights NGO in Kinshasa, was arrested by the ANR and held incommunicado for nine days in September 2009 after the NGO issued a press release denouncing harsh working conditions endured by workers at a gravel-making company in Kasangulu, in the province of Bas-Congo.
Golden Misabiko, head of the Katanga branch of a national human rights organization, was arrested by the National Intelligence Agency (ANR) in July 2009 after his organization published a report alleging that government security officials were involved in illegal mining of highly radioactive uranium and other minerals from the Shinkolobwe mine, Katanga province. Following detention for almost a month, Golden Misabiko was convicted and sentenced to one year in prison with eight months' suspended after being found guilty of “publication of false information”, a conviction that his lawyers are seeking to overturn. Golden Misabiko suffered severe stomach pains, persistent vomiting and psychological trauma brought on by the appalling conditions of detention, where he was forced to pay the guards to sleep outside on a piece of cardboard to avoid an overcrowded and dirty cell.
Leaders of four human rights organizations based in the south-eastern city of Lubumbashi, Katanga province, received anonymous and increasingly sinister SMS messages since mid-September, when they led a local campaign in support of the then detained Golden Misabiko. “I do not know how much longer I can bear the stress and mental suffering caused by these threats, but every day I resist the temptation to just return to normal life with my family, because I refuse to be intimidated into stopping my work,” a human rights defender told Amnesty International.
One of the four human rights leaders who campaigned for Golden Misabiko, Grégoire Mulamba, was abducted on 18 October 2009 on his way home from work. The taxi that was supposed to take him home suddenly diverted from the usual route and as Grégoire Mulamba challenged the driver, another passenger pushed a gun into his ribs and blindfolded him. When the taxi stopped after 20 minutes, Grégoire Mulamba feared he would be killed, but was instead dumped in a cemetery on the outskirts of Lubumbashi. The other three leaders, Timothee Mbuya, Emmanuel Umpula and Dominique Munongo, fled Lubumbashi at the end of September 2009, fearing for their lives. All three returned to the city in October to continue their human rights work, despite an escalating stream of death threats.
GOVERNMENT RESPONSE TO ACTION BY THE HUMAN RIGHTS COUNCIL
During the Universal Periodic Review of the DRC that took place in December 2009, many states expressed concern over the situation of human rights defenders in the DRC and made recommendations to the DRC government. The DRC has since indicated that it supports the UPR recommendations to “take further measures to protect the rights of human rights defenders…”; to “ensure that crimes and violations against human rights defenders and journalists are effectively investigated and prosecuted” and to “adopt an effective legal framework for the protection of human rights activists in line with the Declaration on Human Rights Defenders”.
In accordance with a March 2009 resolution of the Human Rights Council, the DRC government has set up a Human Rights Liaison Committee to strengthen human rights cooperation between the UN, the government, the security services and human rights activists.
Amnesty International’s recommendations to the Human Rights Council
Amnesty International urges the Human Rights Council to call on the Congolese government to:
Act promptly on the Special Rapporteur’s recommendations and to protect human rights defenders, who continue to be arbitrarily detained by security agencies and subjected to an alarming number of death threats.
Uphold the right to freedom of expression and ensure that Congolese human rights defenders are protected from threats, arbitrary arrests and assaults;
Promptly implement in law and practice the UPR recommendations on the protection of human rights defenders for which it has indicated support;
Ensure that the prison sentence against Golden Misabiko is not enforced and request a judicial review of his case.
Investigate the unlawful detention of Robert Ilunga and the death threats against Grégoire Mulamba, Timothée Mbuya, Dominique Munongo and Emmanuel Umpula, and bring those responsible to justice;
Adopt legislation to protect human rights defenders in accordance with the UN Declaration on Human Rights Defenders;
Support initiatives, such as the Ministry of Human Rights Liaison Committee, to enable human rights defenders to bring concerns and protection needs directly to senior government and security force officials;
Give adequate resources and attention to the Human Rights Liaison Committee so that it can effectively supplement international human rights monitoring mechanisms;
Ensure that anyone deprived of their liberty is held only in an officially recognized detention centre under the control of the judicial authorities.
Amnesty International’s Reaction to the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his Visit to Equatorial Guinea
Amnesty International welcomes the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment his visit to Equatorial Guinea in November 2008 (A/HRC/13/39/Add.4).
This visit signalled willingness on the part of the Government to open their detention facilities to scrutiny and to seek advice on strengthening the related legal, policy and administrative framework. While welcoming this positive development, Amnesty International is concerned that the Special Rapporteur on torture was prevented from visiting military detention sites and that he was unable to undertake follow-up visits to the facilities in Malabo and Bata, the purpose of which – at least in part – was to ensure no reprisals had taken place against individuals who had already met with the Special Rapporteur. All states are expected to cooperate with Special Procedure mandate-holders at all stages of country missions, including by complying fully with the 1998 Terms of Reference for Fact-Finding Missions of the Special Procedures.
The Special Rapporteur concluded that torture is systematically practiced in Equatorial Guinea and made a number of recommendations, which to date have not been acted upon by the authorities. Some of his recommendations built on those previously made following a visit by the UN Working Group on arbitrary detention in 2007, which had not been implemented either. Amnesty International notes that, during the recent review of Equatorial Guinea under the Universal Periodic Review, the Government indicated its readiness to consider UPR recommendations pertaining to the implementation of the Special Rapporteur’s recommendations and to the issue of torture and ill-treatment more generally.
In the last two years, Amnesty International has received fewer reports of torture and ill-treatment of political prisoners in Equatorial Guinea. This follows the promulgation of Law 6/2006 on the Prevention and Punishment of Torture (Lei 6/2006 sobre la Prevención y Sanción de la Tortura), which reflects some of the provisions of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Convention against Torture), to which Equatorial Guinea is party.
Nevertheless, Amnesty International continues to receive reports of torture and other ill-treatment in police stations, especially in Bata. Convicted criminals are reportedly routinely beaten as punishment in both the Black Beach and Bata prisons. Political prisoners are subjected to torture and other forms of cruel, inhuman or degrading treatment or punishment, including by being held in prolonged incommunicado detention, in handcuffs or shackles or both, and being denied adequate medical assistance or food. Amnesty International has received detailed reports of torture inflicted on people arrested after an alleged attack on the presidential palace in Malabo in February 2009. The individuals concerned included seven Nigerian nationals and at least two Guineans of a group of 10 members of the political party Unión Popular.
Torture and other ill-treatment are reported to occur mostly at the time of arrest and in pre-trial detention. They are practised as punishment and to obtain confessions to use as evidence in court, contrary to international human rights standards, and they are applied to political detainees as well as to suspected criminals.
Torture and other ill-treatment usually consist of beatings on parts of the body, commonly on the soles of the feet and the buttocks, with batons, rubber-covered cables, and sticks, and of electric shocks with battery chargers or car batteries. The detainees often have their hands and feet tied together and then they are suspended from the ceiling and beaten. Sometimes a heavy object is placed on their backs. They rarely receive medical treatment for injuries sustained as a result of torture or other ill-treatment.
Prison visits by families and lawyers were suspended in December 2007 and were only reinstated in December 2009. Thus, all prisoners were effectively held incommunicado for two years. Amnesty International welcomes the resumption of prison visits as access to families is essential for the well-being of prisoners.
Since 1998 Amnesty International has recorded several cases of death in custody as a result of torture. Other deaths have occurred as a result of the denial of medical care for chronic illnesses or diseases contracted while in detention. None of these instances have been investigated, and those responsible have not been brought to justice.
Indeed, and as concluded by the Special Rapporteur on torture, impunity prevails in Equatorial Guinea. Amnesty International knows of only one police officer who was tried in early 2008 and sentenced to seven months’ imprisonment in connection with the death of a man as a result of torture. However, other officers, some of them high-ranking, who are known to have regularly tortured detainees continue in active service in police stations.
Contrary to the Convention on the Rights of the Child, children below the age of criminal responsibility, which in Equatorial Guinea is 16 years of age, continue to be held in the same facilities as adult prisoners. For example, a group of children aged from 10 to 16 were arrested in late January 2009 and held for varying periods of time in Black Beach prison in Malabo, a prison for convicted adult prisoners.
Amnesty International urges the government of Equatorial Guinea:
to act swiftly to implement the recommendations contained in the report of the Special Rapporteur on torture and to report back to the Human Rights Council on the measures taken;
to ensure that no reprisals are perpetrated against individuals, their families or representatives who met with the Special Rapporteur during his visit and to prosecute in accordance with international standards anyone responsible for any reprisals that have taken place;.
Amnesty International further encourages the Government:
to ratify the Optional Protocol to the United Nations Convention against Torture and to make the necessary declaration under Article 22 to enable individuals to bring complaints before the Committee against Torture; and
to remove its reservation under Article 28 of the Convention and recognize the competence of the Committee to investigate allegations of systematic torture.
Amnesty International’s reaction to the Report of the Representative of the Secretary-General on the human rights of internally displaced persons on his mission to Serbia and Montenegro
Amnesty International welcomes the report of the Representative of the Secretary-General on the human rights of internally displaced persons on his follow-up mission to Serbia and Montenegro, including Kosovo, which was carried out between 28 June and 4 July 2009 (A/HRC/13/21/Add.1).
In light of the ongoing human rights violations in Serbia, including Kosovo, Amnesty International attaches particular importance to the following recommendations of the Representative to the Serbian government and Kosovo authorities:
To prioritize the introduction and implementation of legislative changes to ensure that Roma, Ashkalia and Egyptians in both Serbia and Kosovo are issued with personal identification and other documents, so as to end their legal invisibility;
To resolve the situation of Romani Internally Displaced Persons (IDPs) exposed to toxic lead waste in northern Mitrovica/Mitrovicë; and
To avoid forced returns of members of minority communities to Kosovo, who remain at risk of internal displacement on their return, until robust measures are taken by the Kosovo authorities to address discrimination and provide returnees with real reintegration possibilities. With respect to this recommendation, Amnesty International emphasizes that action on this recommendation should include putting into effect the action plan for implementation of the Strategy for the Integration of Roma, Ashkali and Egyptians, adopted by the Kosovo government in December 2009.
Over the past year, there have been increasing numbers of forced evictions of members of the Romani community from unregistered settlements, particularly in Belgrade. This issue also raises significant concern and requires ongoing follow-up by the Representative.
A significant percentage of those evicted are IDPs from Kosovo: many of these people have been displaced in Serbia since 1999. However, non-governmental organizations also report that others include those who have either been returned to Serbia under an EU Readmission Agreement, or those forcibly returned to Kosovo under bilateral agreements with EU member states, and who have subsequently fled to Serbia because they have been unable to make a sustainable return to Kosovo.
Amnesty International encourages the government of Serbia to continue to implement the recommendations of the Representative, in particular ensuring that any further evictions which take place in Serbia are carried out in accordance with the Basic Principles And Guidelines On Development-Based Evictions And Displacement13.
Amnesty International takes this opportunity to thank the Representative for his important contribution to the promotion and protection of human rights over the term of his mandate.
Amnesty International welcomes the report of the Representative of the Secretary-General on the human rights of internally displaced persons to the Human Rights Council on his visit to Somalia in October 2009 (A/HRC/13/21/Add.2). The organization shares the concerns of the Representative and urges the parties to the conflict in Somalia, the African Union, the United Nations and international donors to implement the recommendations contained in the report.
This statement expands on the concerns held by Amnesty International in relation to the human rights situation in Somalia, with particular focus on Internally Displaced People (IDPs).
Civilians in Somalia bear the brunt of the armed conflict between armed groups and Transitional Federal Government troops and allied forces. The UN estimates that 1.5 million are internally displaced in Somalia, with 1, 380,000 displaced within southern and central Somalia, where armed conflict rages. Since January 2010, according to Somali civil society groups, some 29,000 civilians have fled armed confrontations around Dhusamareb in central Somalia between the al-Shabaab armed opposition group and the government-allied Alhu Sunna Waal Jamaa; 25,000 are estimated to be displaced as a result of fighting between the same groups for the control of Beletweyne, a city in central Somalia; and thousands of civilians are fleeing the capital city Mogadishu ahead of an announced offensive by the Transitional Federal Government (TFG) against armed opposition groups.
Those displaced are in a dire situation, with limited or no access to essential humanitarian aid. They are also vulnerable to serious human rights abuses while they are fleeing, as most of them are women and children. The Representative of the Secretary-General identified assaults, rape and domestic violence as common abuses inflicted on IDPs. Amnesty International has received reports of rapes of civilians fleeing fighting in Dhusamareb in January 2010. Particularly worrying are the reports received by the Representative of recruitment of children living in IDP settlements in Southern Somalia into armed forces.
DISPLACEMENT AS A CONSEQUENCE OF SERIOUS HUMAN RIGHTS ABUSES
Armed conflict and conflict-related abuses are a major cause of displacement. Armed opposition groups have continue to commit serious human rights abuses, and on a wider scale compared to 2009. They are responsible for launching attacks from and in densely populated civilian areas and for using mortars and improvised explosive devices in urban areas where civilians reside or frequent. There are allegations that armed opposition groups have murdered persons suspected to be sympathising with the Government, including in Beletweyne at the end of January 2010. Journalists, civil society activists and humanitarian workers are intimidated by armed groups and often receive death threats thought to come from armed opposition groups. In areas under their control, armed groups have imposed drastic rules on journalists and civil society actors and closed down some radio stations. As a result, information that the international community receives about the dire situation of IDPs is limited.
In addition, there are persistent reports of the widespread recruitment of child soldiers by armed opposition groups, as mentioned above, and of the restrictions imposed on women’s dress code and freedom of movement in the areas armed opposition groups control. These groups are also responsible for a pattern of unlawful killings, torture and other ill-treatment, including stoning of women and men to death, public executions, amputations and floggings, use of unlawful and arbitrary quasi-judicial bodies, and enforcement of their own interpretation of Islamic law.
There are also consistent and persistent reports of serious violations by TFG forces, and even by African Union Mission in Somalia (AMISOM) troops in Mogadishu. Amnesty International continues to receive reports similar to those expressed to the Representative and reproduced in his report. These reports are mainly about the practice of indiscriminate shelling of civilian areas of Mogadishu by Transitional Federal Government forces and AMISOM, in response to attacks by armed groups. Civilians and civil society actors report that mortars and other heavy artillery weapons are regularly fired from government and AMISOM bases in Mogadishu towards the general direction of the attackers. Civilians, including displaced persons in Mogadishu, are routinely killed and injured because of such shelling.
IMPUNITY FUELS ABUSES AND DISPLACEMENT
It is essential that the government and AMISOM treat these allegations seriously and publicly order forces under their command not to commit attacks that do not distinguish between military objectives and civilians. The international community, which supports the government and AMISOM, should be more vocal against such violations and ensure that oversight mechanisms are put in place to independently investigate such allegations.
Amnesty International believes that armed conflict and displacement in Somalia will continue until serious steps are taken to address the overwhelming impunity with which acts which amount to war crimes are committed. Amnesty International welcomes the Representative’s support for the establishment of an independent Commission of Inquiry to investigate serious crimes committed in Somalia. The Transitional Federal Government has committed under the 2008 Djibouti peace agreement to address justice and reconciliation, and must take practical steps to implement this. The international community must also spearhead the establishment of a credible mechanism to address impunity in Somalia, which can contribute to end the cycle of violence against civilians.
LACK OF HUMANITARIAN ACCESS
Access for humanitarian aid to IDPs in urgent need of food, water, shelter and healthcare is limited and in some places non-existent. Apart from a general context of insecurity and indiscriminate violence, the work of humanitarian agencies has been hampered by targeted killings of aid workers and by strict limits imposed on their work. Amnesty International concluded that out of 46 cases of killings of aid workers in Somalia in 2008, the majority were targeted killings. Half of these targeted killings were committed by members of armed opposition groups, including al-Shabaab militias, according to information gathered by Amnesty International. The impunity for such crimes must be addressed. In 2009, another 10 aid workers were killed.
Access to people in need of emergency aid has also been limited because parties to the conflict have obstructed access. In 2009, armed opposition groups bore primary responsibility for restricting aid operations. They made threatening statements against international and Somali aid workers and imposed conditions on humanitarian agencies, such as forbidding the employment of female staff as aid workers.
As the Representative outlined in his report, the international community also bears some responsibility for the dwindling aid given to those displaced by the conflict in Somalia. In 2009, the UN Consolidated Appeal Process for Somalia was only half-funded, and projects related to the protection of civilians have not received enough contributions from donors. Amnesty International calls on donor countries to fully fund humanitarian projects for Somalia, including projects relating to the protection of civilians.
Amnesty International supports the recommendations made by the Representative of the Secretary-General in his report and urges all relevant actors to implement them. Amnesty International recommends, in particular, that:
All parties to the conflict immediately cease direct attacks on civilians and indiscriminate and disproportionate attacks which cause civilian deaths, injuries, destruction of homes and displacement;
All parties to the conflict allow safe, timely, unconditional and unimpeded access by aid agencies to all IDPs and civilians in need of assistance in Somalia;
The Transitional Federal Government, the United Nations and the international community take urgent and concrete steps towards the establishment of an independent Commission of Inquiry, or similar mechanism, to address impunity for crimes under international law committed in Somalia;
The international community provide full support and funding for humanitarian programmes in all areas hosting displaced Somalis.
The role of human rights defenders in challenging discrimination and violence in the name of religion or belief
Amnesty International welcomes the report prepared by the Special Rapporteur on the freedom of religion or belief, and in particular the framing of issues of concern to her mandate. The distinction made between discrimination and violence on the grounds of religion or belief, and discrimination and violence in the name of religion or belief is an important one. It helps to separate out areas that are frequently (and often purposely) conflated to the detriment of effective analysis. Discrimination and violence in the name of religion are detrimental to a range of rights, including freedom of religion or belief itself. It is important to have the clarity of analysis that makes it possible to identify and challenge discrimination and violence in the name of religion or belief.
Violations of the rights of women are frequently carried out in the name of religion. Human rights defenders who seek to expose such violations and demand accountability of the perpetrators frequently find themselves targets of threat and attack. They are targeted because of the human rights work they do, and because of the roles they adopt in their communities and in the wider public sphere. Their advocacy is too often portrayed by those in authority - both state and non-state actors - as in opposition to religion, tradition and culture.
Several of the early-warning signs of discrimination and violence cited by the Special Rapporteur on freedom of religion or belief also adversely affect the work of human rights defenders. These signs include the lack of adequate legislation to ensure freedom of religion or belief, attacks upon individuals based upon their religious affiliation, and lack of accountability for crimes committed in the name of religion or belief.
Amnesty International believes that violence perpetrated against women in the name of religion or belief remains a poorly understood phenomenon that requires greater engagement by states to ensure it is effectively confronted. Threats and attacks against women human rights defenders in the name of religion or belief are often indicative of the level or control exerted by state actors, individuals and groups that discriminate and abuse rights in the name of religion or belief, and in that sense they are another early-warning sign of growing religious intolerance. As a measure to prevent the growth of religious intolerance, any such threats or attacks should be treated seriously by states through prompt and proper investigation and prosecution of alleged perpetrators in accordance with international fair trial norms.
Human rights defenders the world over detect, document and report early-warning signs of intolerance leading to discrimination or violence in the name of religion or belief. Their work is essential in bringing such information and analysis to the attention of human rights mechanisms and the international community more broadly. Promoting and protecting the work of human rights defenders is an essential part of challenging discrimination and violence in the name of religion or belief.
Amnesty International takes this opportunity to thank Ms Asma Jahangir for her contribution to the promotion and protection of human rights as Special Rapporteur on the freedom of religion or belief and previously as Special Rapporteur on extrajudicial, summary or arbitrary executions.
CINAT checklist for selection of candidates for mandate of UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment
Note: this written statement is also available in French and Spanish
In September 2010 at the 15th session of the United Nations Human Rights Council, the President of the Council is to appoint an independent human rights expert to serve as the next Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment.
Suggestions for appointment should be based on the technical and objective requirements for eligible candidates for Special Procedure mandate holders adopted with Human Rights Council decision 6/102 (‘Follow-up to Human Rights Council resolution 5/1’). This written statement presents the elaboration of the mandate-holder selection criteria that the Coalition of International NGOs Against Torture (CINAT)14 has prepared for the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment mandate.
CINAT calls on Governments, NGOs and others, including relevant professional networks, to use the following checklist to identify eligible candidates for consideration for the upcoming Special Rapporteur on Torture and Torture and other cruel, inhuman or degrading treatment or punishment vacancy. CINAT urges Governments to call publicly for candidates, e.g. through media advertisement, and consult civil society nationally before nominating candidates.
NGOs and others wishing to nominated candidates should send the names of eligible candidates to the Office of the High Commissioner for Human Rights for inclusion in the public list (roster) used as basis for the appointment.15
CINAT checklist for selection of candidates for mandate of UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment
Proposed candidates for the mandate should be put forward on the basis of technical, professional and other requirements.
Human Rights Council (HRC) resolution 5/1 sets general criteria that are of ‘paramount importance while nominating, selecting and appointing mandate-holders: (a) expertise; (b) experience in the field of the mandate; (c) independence; (d) impartiality; (e) personal integrity; and (f) objectivity.’
HRC decision 6/102 establishes four technical and objective requirements (qualifications, relevant expertise, established competence and flexibility/readiness and availability of time) to be considered in the selection of Special Procedures mandate-holders.
The following checklist is intended as an interpretive aid for those requirements:
1. Qualifications (and skills): relevant educational qualifications and equivalent professional experience in the field of human rights; good communication skills in two of the official working languages of the United Nations.
A post-graduate university degree or equivalent in a discipline directly related to the mandate, preferably with a substantial focus on public international law, international human rights law, international humanitarian law and/or international criminal law;
Academic publications or other published material (articles, studies, reports, research papers or any similar written material demonstrating in-depth knowledge) on human rights issues relevant to the mandate;
Excellent oral and written communication skills in at least two of the UN working languages (English, French and Spanish – knowledge of other widely-used or official UN languages, such as Arabic, Chinese or Russian, would also be an asset);
Extensive experience in public speaking (for example in expert seminars), and ideally also communicating with the media, governments, and other relevant stakeholders.
2. Relevant expertise: knowledge of international human rights instruments and standards; knowledge of institutional mandates related to the United Nations or other international or regional organisations’ work in the area of human rights; proven work experience in the field of human rights.
Extensive knowledge of international human rights law and standards;
At least 10 years of progressively responsible work experience in the field of human rights, in particular in protecting persons at risk and/or supporting victims of torture and other cruel, inhuman or degrading treatment or punishment;
Good knowledge of the international and regional legal frameworks and case law relevant to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; the right to life; enforced disappearances; fair trial rights; reparation, including compensation and rehabilitation of victims; prosecution and sanction of perpetrators, as well as of institutional mandates of the United Nations or other international or regional organisations in the area of human rights.
3. Established competence: nationally, regionally or internationally recognised competence related to human rights.
Knowledge of human rights-based methodologies for visiting places of detention and interviewing individuals who are deprived of their liberty, and preferably also experience in these fields, including in difficult circumstances in various countries;
The ability to conduct both academic and field research required in conducting fact-finding missions;
Extensive experience in critically analysing information and data, in order to be able to review individual cases as well as identify trends and make effective recommendations;
Experience in interacting with victims of torture and other cruel, inhuman or degrading treatment and punishment;
Experience in working with authorities responsible for persons deprived of their liberty (including prison guards, police, medical personnel and other officials);
Awareness of the particular vulnerabilities of specific groups (eg women, children, indigenous people, persons with disabilities and other socially-marginalised populations who face a heightened risk of torture and other cruel, inhuman or degrading treatment or punishment);
Commitment to work closely with a range of stakeholders, including NGOs.
Experience in handling cases of torture and other cruel, inhuman or degrading treatment and punishment before judicial and quasi-judicial bodies would also be an asset.
4. Flexibility/readiness and availability of time to
perform effectively the functions of the mandate and to respond to
its requirements, including attending Human Rights Council
Willingness and ability to conduct in-country investigations, in all regions of the world, into alleged cases of, and phenomena conducive to, torture and other cruel, inhuman or degrading treatment or punishment (including places where people are deprived of their liberty and other places of limited access where victims of torture or ill treatment might be found);
A demonstrated commitment to human rights in general, and in particular to the absolute, non-derogable prohibition on torture and other cruel, inhuman or degrading treatment or punishment;
A commitment to uphold the integrity, independence and impartiality of the Special Rapporteur’s mandate;
Willingness and ability to devote a substantial proportion of working hours to fulfilling the mandate, which includes undertaking two to three country missions per year, preparing and presenting reports to the Human Rights Council and the General Assembly (including annual and country mission reports), and attending seminars and other UN meetings;
Willingness and ability to act urgently on cases or situations requiring immediate attention.
CINAT does not consider that a mandate holder must meet each and every specification in the above checklists. However, the strongest candidates should meet a substantial number of them. Please note also that these checklists are not intended to be exhaustive as to desirable qualifications for the role of Special Rapporteur on Torture.
Amnesty International’s February 2010 report “The Repression of Ethnic Minority activists in Myanmar”16 reveals that there are real reasons to fear that the 2010 elections in Myanmar will intensify the already severe repression of political critics, in particular those from the country’s large and diverse population of ethnic minorities. The report covers the two-year period from August 2007, six months before the government announced that it would stage national elections, through July 2009. It draws on testimonies and information provided by or about some 700 members of ethnic minorities who faced human rights violations as a result of their actual – or sometimes, merely perceived—opposition to the Myanmar government or its policies.17
Amnesty International’s research demonstrates, with greater detail than previously available, that Myanmar’s ethnic minorities have played an integral role in much of the political opposition against the government’s repressive conduct. Myanmar’s government has imposed a heavy burden on peaceful critics from ethnic minorities: including arbitrary arrest, imprisonment, torture, and extrajudicial executions of activists are documented among other human rights violations.
CONTEXT OF APPROACHING ELECTIONS
Later this year, Myanmar is set to hold its first national and local elections in 20 years against a backdrop of political repression and unresolved armed conflicts. In the context of the upcoming elections, the government has alternately encouraged and warned ethnic minority political organizations to take part. Most of them have remained undecided or noncommittal.. Myanmar’s Government is struggling to ensure that those organizations represented by armed groups still fighting against the army are either defeated or “brought back into the legal fold” before the elections.18 The army and its allies have waged concerted offensives against several armed groups (and civilians), from the Karen, Shan, and Kokang ethnic minorities.19 As a result nearly 5,000 Karen, 10,000 Shan, and over 30,000 Kokang were displaced during 2009 and the Kokang’s armed militia, the Myanmar National Democratic Alliance Army (MNDAA)20, was defeated.
The authorities have arrested and imprisoned ethnic minority activists, in some cases torturing or killing them. Minority groups have also faced extensive surveillance, harassment and discrimination when trying to carry out their legitimate activities. With the elections as the political context in Myanmar for the past two years, and the government thus preparing to pit its own candidates against an opposition, it has not tolerated any group, including ethnic minorities, challenging its legitimacy, policies, and practices.
To a large extent, the military government has already cemented its position ahead of the elections, as the country’s 2008 constitution ensures that the military will continue to dominate the government. The constitution contains strict requirements on the eligibility of presidential candidates (ruling out Daw Aung San Suu Kyi, for instance, due to the fact that her children hold British citizenship); reserves legislative seats for the military, effectively giving it veto power over constitutional amendments; leaves the military in control of key security ministries; and affords the military the authority to administer its own affairs. This constitution was “approved” in a 2008 referendum, held a week after Cyclone Nargis left nearly 140,000 dead or missing and displaced hundreds of thousands, devastating much of the Ayerawaddy (Irrawaddy) delta. Amnesty International has documented some of the government’s repressive tactics against ethnic minority activists who opposed the approval of the 2008 constitution through the referendum. They included arbitrary arrests, imprisonment, and even extrajudicial executions of activists.
ROLE OF ETHNIC MINORITIES WITHIN THE POLITICAL OPPOSITION
Observers outside Myanmar frequently distinguish between two groups in opposition to the Myanmar government, identifying Daw Aung San Suu Kyi and the NLD as a political force pitted against the government on the one hand, and on the other a variety of ethnic armed groups fighting against the tatmadaw, Myanmar’s army. In fact, much of the peaceful opposition to the country’s repressive government is actually composed of ethnic minorities, living in areas where particular ethnic minorities form the predominant population. Many NLD leaders, for example, as well as NLD rank and file members, are from ethnic minorities. The clearest illustration of this phenomenon is the so-called Saffron Revolution, whose first stirrings occurred not in Yangon, but among ethnic minority monks and nuns in Rakhine State.21
Understanding the role of ethnic minority political opponents and activists in Myanmar prompts a rethinking of the human rights situation in the country and the appropriate strategy for improving it.
First, attention to ethnic minority opposition reveals the wide extent of popular opposition to the Myanmar government, and emphasizes the need to ensure that Daw Aung San Suu Kyi, the NLD, and other political opposition groups—including those founded by ethnic minorities—are able to participate meaningfully in the coming elections. As illustrated in Amnesty International’s report on “The Repression of Ethnic Minority Activists in Myanmar”, among the government’s political opponents are ethnic minorities who perform similar work, toward similar aims, as their ethnic majority Burman counterparts in the country’s urban centres and central regions.
Second, understanding the role of ethnic minorities among the opposition should expand the international community’s understanding of the aspirations of Myanmar’s ethnic minorities beyond the oft-cited context of armed groups, and refocus international attention on addressing the needs of Myanmar’s ethnic minorities in any discussion of the country’s human rights situation and any relevant resolutions.
REPRESSION OF ETHNIC MINORITIES
The government of Myanmar violates the human rights of ethnic minority political opponents and activists in many ways, including torture and other ill-treatment; discrimination on the basis of religion and ethnicity; unlawful killings; and arbitrary detention22 for short periods or imprisonment.23 All of those detained or imprisoned were or remain among Myanmar’s large population of political prisoners (hovering around 2,100 prisoners)—detained because of their political, religious or other conscientiously held beliefs, ethnic origin, language, national or social origin, birth, or other status. Most are prisoners of conscience; they have expressed their beliefs peacefully.24 Many such political opponents and activists told Amnesty International that they faced government repression as part of a larger movement, as in Rakhine State during the 2007 Saffron Revolution, while others said that the authorities pursued them for specific actions, such as organizing a small anti-dam signature campaign in Kachin State. Even relatively simple expressions of political dissent faced repression, as when Karenni youths were detained for floating small boats on a river with “No” (to the draft constitution) written on them.
Government repression predates and extends beyond the scope of the elections, especially where the authorities have feared a challenge to their rule. Myanmar’s ethnic minority activists also have interests, concerns, and grievances distinct from both those of the majority Burman population and electoral politics. These are no less critical to the defence and realization of their human rights. Amnesty International has found and reported on clear evidence that Myanmar’s authorities often target members of ethnic minorities on discriminatory grounds, such as religion or ethnicity, or to attempt to crush their opposition to major development projects that adversely affect their lands and livelihoods. Though outside the formal political sphere, this activism and its repression have implications for the coming elections insofar as they illustrate the desire among ethnic minorities to ensure that their voices are heard and respected, as well as the lengths to which the government will go to stifle and deny them.
Amnesty International’s recommendations
Amnesty International recommends that the UN Human Rights Council include, as a matter of priority in its deliberations and actions on Myanmar, a specific focus on the human rights of ethnic and religious minorities;
Further, Amnesty International recommends that the UN Human Rights Council urge the government of Myanmar to:
Cooperate fully with the Special Procedures, including the Special Rapporteur on the situation of human rights in Myanmar and implement the recommendations of the human rights treaty bodies;
Engage constructively in the Human Rights Council’s Universal Periodic Review when Myanmar is scheduled for review in early 2011.
Lift restrictions on freedom of association and assembly in the run-up to the elections, including by refraining from penalizing peaceful political activities;
Release immediately and unconditionally all political prisoners arrested solely on the basis of their peaceful political activity, ethnicity, or religion;
Remove restrictions on independent media, including international journalists, to cover the campaigning and election process;
Ratify and effectively implement international human rights treaties, including the International Covenants on Human Rights and their Optional Protocols; the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol; the International Convention on the Elimination of All Forms of Racial Discrimination; and the Rome Statute of the International Criminal Court.
Amnesty International wishes to address the issue of accountability regarding alleged war crimes and other serious violations of international humanitarian and human rights law committed during the 22-day conflict in Gaza and southern Israel in December 2008 and January 2009.
We note that the following submissions have been made to UN bodies in relation to the findings and recommendations of the United Nations Fact-Finding Mission on the Gaza Conflict (the Goldstone Report) (A/HRC/12/48), the Human Rights Council’s endorsement of this report on 16 October 2009 (A/HRC/S-12/1), and calls made to the government of Israel and the Palestinian side in the UN General Assembly resolution of 5 November 2009 (A/RES/64/10):
29 January 2010: the Permanent Mission of Israel submitted a document on behalf of the State of Israel entitled Gaza Operation Investigations: An Update;25
29 January 2010: the Permanent Observer Mission of Palestine submitted a note verbale conveying a letter from Prime Minister Salam Fayyad of the Palestinian Authority;26
2 February 2010: the Ministry of Justice of the Hamas de facto administration in Gaza submitted three documents to a UN official from the Office of the High Commissioner for Human Rights in Gaza.27
The report of the Secretary-General to the General Assembly dated 4 February 2010 refers only to the submissions made via the UN missions. As the recommendation by the UN Fact-Finding Mission asked for investigations by the government of Israel and the “relevant authorities in Gaza” to be monitored, Amnesty International has considered all three responses.
THE RESPONSE OF THE GOVERNMENT OF ISRAEL: SUMMARY OF CONCERNS
Israel’s 46-page Update states that the army has opened investigations into 150 incidents involving alleged violations of the laws of war by its forces during Operation “Cast Lead”, its 22-day military offensive in Gaza.
Amnesty International is concerned that the independence and impartiality of these investigations is severely compromised by the fact that all these investigations have been carried out by army commanders or by the military police. In addition, these inquires are overseen by the Military Advocate General, whose office cannot be considered a disinterested party as it provided legal advice to Israeli forces on their choice of targets and tactics during Operation “Cast Lead”.
Only 36 incidents are under criminal investigation by the military police. The others are being considered in operational debriefings (referred to as “command investigations” in the Update). The army commanders conducting these debriefings do not have the necessary professional training for conducting investigations into violations of international law, and cannot be considered independent. Also, problematically, these debriefings are confidential – if they are referred to a criminal investigation, self-incriminatory evidence given by soldiers in the debriefing is not admissible in court. If the debriefings are closed without being referred to a criminal investigation it is not possible to examine the proceedings or the evidence behind the decision not to open a criminal investigation.
The Update states that a number of military inquiries have concluded that there is no basis for criminal investigations; some of these relate to serious incidents which Amnesty International maintains warrant effective, independent investigation. These include Israeli attacks on UN facilities, civilian property and infrastructure, attacks on medical facilities and personnel, and incidents in which large numbers of civilians were killed by Israeli forces.
Despite enduring concerns expressed by Amnesty International over Israel’s extensive use of white phosphorus in Gaza, the Update contends that there are “no grounds to take disciplinary or other measures for the IDF’s use of weapons containing phosphorous”. During Operation “Cast Lead” Israeli forces often launched artillery shells containing white phosphorus into densely populated residential areas, causing death and injuries to civilians. Other Israeli attacks which resulted in civilian injuries and deaths are dismissed as “operational errors” although the Update acknowledges “some instances” in which Israeli soldiers and officers “violated the rules of engagement”.
The military investigations also preclude the possibility of examining decisions taken by civilian officials, who are also alleged to be responsible for serious violations.
Research by Amnesty International into Operation “Cast Lead” showed elements of reckless conduct, disregard for civilian lives and property and a consistent failure on the part of Israeli forces to distinguish between military targets and civilians and civilian objects. Israeli forces continued to employ tactics and weapons that resulted in growing numbers of civilian casualties for the entire duration of the military offensive. This was despite Israeli officials knowing from the first days of the military offensive that civilians were being killed and wounded in significant numbers.
THE RESPONSE OF THE HAMAS DE FACTO ADMINISTRATION IN GAZA: SUMMARY OF CONCERNS
The main document submitted by the Hamas de facto administration to the UN was a report entitled Status of implementation of the recommendations of the International Fact Finding Mission Report on the Israeli aggression on Gaza 12/2008-1/2009 (an executive summary of the report and a document entitled Photo Documentation of the Israeli War crimes on Gaza, 2008-2009 were also submitted). The report states that the Hamas de facto administration has:
Established a twelve-person governmental committee (headed by the Hamas de facto Minister of Justice) to monitor the implementation of the recommendations of the Goldstone Report;
Established a three-person independent international committee of experts in international law to guarantee the transparency and impartiality of the steps taken by the government;
Commissioned the public prosecutor to investigate all alleged violations of international law reported to him.
Amnesty International considers that it is clear from this response by the Hamas de facto administration that it has failed to mount any credible investigations into serious violations alleged to have been committed by its forces. In particular, the documents submitted by Hamas fail to address adequately the firing of indiscriminate rockets by Palestinian armed groups into southern Israel.
The Goldstone Report found that “these attacks constitute indiscriminate attacks upon the civilian population of southern Israel and that, where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity” (A/HRC/12/48, paragraph 108).
In respect to the firing of indiscriminate rockets and mortars, the response states: “All Palestinian armed groups have published declarations that they did not target civilians but rather that they targeted military targets but tried to avoid civilian targets”.28 This contradicts statements made by armed groups, including Hamas’ military wing, before and during the conflict in which they claimed responsibility for rocket attacks, which they stated were directed at civilian towns and which killed or injured civilians and damaged civilian homes.
Armed groups have an obligation to respect applicable international humanitarian law. The firing of indiscriminate rockets by Palestinian armed groups into Israel during Operation “Cast Lead” killed three Israeli civilians and caused further civilian injuries and damage to civilian property. Whether these attacks were intended to hit military or civilian objects, the use of unguided projectiles which could not be directed at specific targets, placed the civilian population at risk.
THE RESPONSE OF THE PALESTINIAN AUTHORITY IN THE WEST BANK: SUMMARY OF CONCERNS
The submissions made by the Permanent Observer Mission of Palestine consisted of: a presidential decree issued on 25 January 2010 concerning the formation of an independent commission to follow up the Goldstone Report; and a two-page document entitled Report of meeting of the Independent Investigation Commission that was established pursuant to General Assembly resolution 64/10.
These documents do not detail the specific incidents that will be investigated. Noting that the Palestinian Authority in the West Bank was not a party to the conflict in Gaza and southern Israel, that it was not then, and is not now, in a position of effective control over Gaza, and the poor relationship between the Palestinian Authority and the Hamas de facto administration in Gaza, it is unclear to what extent the committee will be able to effectively investigate allegations of serious violations by Palestinians, such as the firing of indiscriminate rockets from Gaza into southern Israel, which was identified as a key concern in the Goldstone Report.
Having considered all of these documents, Amnesty International is both surprised and disappointed that, according to the Secretary-General’s 4 February 2010 report,29 he is unable to determine whether the government of Israel and the Palestinian side are complying with the UN General Assembly resolution 64/10 that urged both sides to carry out investigations “that are independent, credible and in conformity with international standards”.
In the assessment of Amnesty International, the responses presented to the UN demonstrate that none of the relevant parties has taken the necessary steps to conduct investigations “that are independent, credible and in conformity with international standards”.
While the Secretary-General explained his lack of action by the fact that “processes initiated” by the Israeli and Palestinian authorities were “ongoing”, Amnesty International considers that the information received by the UN was sufficient to show that the steps taken to date by the parties to the conflict are clearly inadequate, and that this message should have been conveyed to the Israeli and Palestinian authorities clearly and unambiguously in the Secretary-General’s report.
Amnesty International encourages the UN Secretary-General to remedy this situation by immediately preparing an independent assessment of the steps being taken by Israel and the Palestinian side to address accountability, including by requesting the assistance of the UN High Commissioner for Human Rights and other independent experts in international humanitarian and human rights law. Amnesty International calls on the Human Rights Council to support this call for an independent assessment.
The results of this assessment should be made available to the General Assembly and the Security Council in the coming months and the assessment should be conducted in such a way as to provide a solid basis for decisions on further action that are necessary to secure accountability for both sides. Such action may include an eventual referral of the situation in Gaza by the UN Security Council to the International Criminal Court.
“We left because death and injury had become the order of the day. Dead people were scattered everywhere. We could not go anywhere without seeing a corpse. At night we could not sleep because of the sound of bullets.” A young Somali woman interviewed by Amnesty International in Kenya in March 2009
Since March 2009, little has changed for civilians in Somalia and the human rights situation has deteriorated. Armed groups opposed to the Transitional Federal Government (TFG), mainly al-Shabaab and Hizbul Islam factions, currently in control of much of south and central Somalia, are now responsible for the majority of abuses against civilians, in defiance of their obligations under international humanitarian law. The TFG has made positive statements in favour of the respect for human rights, but has done little to make them a reality, partly because it has control on limited territory. The TFG must show Somali civilians that it can implement its commitments and respect international human rights and humanitarian law.
In the areas they control, armed opposition groups are responsible for a pattern of unlawful killings, torture and other ill-treatment, including stoning of women and men to death, public executions, amputations and floggings, using unlawful and arbitrary quasi-judicial bodies. They claim that such acts are committed in order to enforce their own interpretation of Islamic law, or against persons they allege are sympathisers of the TFG. In reality these acts, which are crimes under international law, aim through public displays of cruelty at intimidating and instilling fear in the civilian population.
Reports of recruitment and use of children through coercion or deceit by armed opposition groups into their forces continue, raising fears that this has become a widespread practice. Al-Shabaab factions in particular have encouraged male children and teenagers to join their ranks, have issued public threats against agencies active in children’s education, and have also imposed restrictions on women’s rights, including on their dress code and their freedom of movement.
Armed opposition groups have also imposed drastic restrictions on journalists and civil society activists, issued death threats against them, closed down and occupied their workplace. As a consequence, many journalists and civil society activists have had to flee the country, exercise self-censorship or go into hiding. As a result, information reaching outside observers on the real situation of Somali civilians in areas controlled by armed groups is increasingly limited.
Armed opposition groups have impeded civilians’ access to humanitarian aid in a situation where more than three million Somalia people depend on emergency assistance for their survival. While in 2009 armed opposition groups dismantled many roadblocks manned by TFG forces and armed gangs, armed opposition groups have also been responsible for restricting humanitarian operations, including by making threatening statements against international and Somali aid workers and imposing conditions on humanitarian agencies, such as forbidding the employment of female staff as aid workers. Ten people working in the aid sector were killed in south and central Somalia in 2009. Since December 2009, at least three were murdered.
Armed opposition groups continue to claim that government-allied forces are responsible for the killing of civilians through their shelling of civilian-populated areas. Yet, these armed opposition groups repeatedly use weapons such as mortars, which are inherently indiscriminate when used in densely civilian-populated areas, to attack government-allied forces in cities, endangering civilians living in the vicinity of government-held positions. They use the cover of residential areas to launch attacks, blurring further the distinction between civilians and military targets. Armed opposition groups claimed responsibility for at least three suicide attacks in 2009, including the one in June in a hotel in Beletweyne in which the then Minister of Security and several civilians were killed. Armed opposition groups are making no efforts to distinguish between legitimate military targets and civilians and to mitigate the effects of the conflict on the civilian population.
The contempt for human rights principles expressed by spokespersons of some armed opposition groups has a negative impact on Somali and international efforts to improve the human rights and humanitarian situation in Somalia. International actors can do more to help protect Somali civilians: they should provide full funding to humanitarian programmes in Somalia and in neighbouring countries that host hundreds of thousands of Somali refugees. They should also spearhead and support efforts to address accountability for serious crimes under international law which continue to be committed in Somalia. In this respect, international actors do not put enough pressure on the TFG to respect its own obligations under international law.
The TFG has made positive statements regarding human rights. It made commitments to ensure justice and reconciliation under the 2008 Djibouti agreement. It also signed the first African Convention on the Rights of Internally Displaced Persons in August 2009 and committed to ratify the UN Convention on the Rights of the Child in November 2009. After returning to Mogadishu in February 2009, newly appointed President Sheikh Sharif Sheikh Ahmed asked African Union peace support troops not to respond to armed groups’ attacks by shelling the city with heavy artillery, in order to prevent civilian casualties.
These positive statements of intention have not been matched by concrete action by the TFG. Amnesty International recognises that the TFG is in a difficult position since it does not exercise authority on most of south and central Somalia and is repeatedly attacked by armed opposition groups. However, Somali civilians and civil society groups continue to report the killings and injuries of civilians in Mogadishu as a result of shelling by TFG security forces and African Union Mission in Somalia (AMISOM) troops. Local sources have reported to Amnesty International hearing and seeing mortars and other heavy artillery being fired from TFG and African Union bases towards the urban districts of Mogadishu populated and frequented by civilians, where armed groups are based. For instance, the Bakara market, an area of Mogadishu controlled by the armed groups, has been repeatedly shelled, including at day time, in the past six months. Yet Bakara market is frequented by civilians said to come from as far as Afgooye to buy and sell food. TFG and AMISOM troops must immediately cease all indiscriminate or disproportionate attacks, which are prohibited under international law, and cause deaths, injuries, destruction of homes and displacement. These attacks are being exploited by armed groups to feed their propaganda against the TFG and AMISOM.
The international community should publicly condemn such attacks and call for those who order or commit them to be held accountable for war crimes. All international actors involved in supporting the security sector of the TFG should urgently provide technical assistance for the establishment of credible oversight mechanisms over government and allied forces.
Amnesty International welcomes the report of the Special Representative of the Secretary-General on the human rights of internally displaced persons on his mission to Somalia (A/HRC/13/21) and looks forward to the report of the report of the Independent Expert on the situation of human rights in Somalia (A/HRC/13/65). Amnesty International welcomes these two experts’ support for the establishment of an independent Commission of Inquiry, or similar mechanism, to address impunity for crimes under international law in Somalia. Concrete steps to ensure accountability should not be further delayed, as they can contribute to break the cycle of violence in which civilians are trapped.
Amnesty International calls on the Human Rights Council to urge all relevant actors to whom the experts’ recommendations are addressed to act on them without delay.
Full title: Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General
2 For more information on the human rights situation see Amnesty International, Leave us in peace!’: targeting civilians in Colombia's internal armed conflict (AMR 23/023/2008).
3 See Amnesty International, Seeking Justice: the Mothers of Soacha (AMR 23/002/2010).
5 Auto No.004 of 2009, 26 January 2009.
6 Full title: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.
7 See Statement of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, as she concludes her visit to Colombia available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=111&LangID=E
8 See Amnesty International, Seeking Justice: the Mothers of Soacha (AMR 23/002/2010).
9 The Special Rapporteur has stressed that important elements of such reform should take into account the special needs of women and Indigenous and Afro-descendent people. She has recommended that State agents defending human rights, i.e. magistrates and national and regional staff members of the Human Rights Ombudsman’s Office, be included in this Programme. She also recommended that the process for applying for protective measures should be simplified and faster and that surveillance carried out on human rights defenders by bodyguards assigned for their protection be addressed. The Special Rapporteur has also indicated the need for the Protection Programme to expand its preventative measures and called for concerns about its privatization to be addressed. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=111&LangID=E
10 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
11 See Statement of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, as she concludes her visit to DRC available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=8353&LangID=E
13 Basic Principles And Guidelines On Development-Based Evictions And Displacement, Annex 1 of the Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, A/HRC/4/18.
14 CINAT member organisations are (in alphabetical order): Amnesty International (AI), the Association for the Prevention of Torture (APT), the International Commission of Jurists (ICJ), the International Federation of Action by Christians for the Abolition of Torture (FIACAT) (FIACAT), the International Rehabilitation Council for Torture Victims (IRCT), the Redress Trust (REDRESS) and the World Organisation Against Torture (OMCT)
16 AI Index ASA 16/001/2010, available at www.amnesty.org
17 Amnesty International conducted more than 50 interviews, 34 of which were with activists who were themselves victims, the others with relatives, friends, neighbours, or witnesses. Amnesty International gathered this information in November 2007 in China, and throughout 2009 in Malaysia and on the borders Myanmar shares with Bangladesh and Thailand. In China, Thailand, and Bangladesh especially, Amnesty International sought out and interviewed activists who had fled Myanmar under grave threat and remained in dangerous and sometimes desperate situations. Most had never spoken to a human rights organization or fully recounted their experiences. Additional information was obtained via other sources inside Myanmar and confirmed independently by Amnesty International.
18 Senior General Than Shwe’s speech at the 64th anniversary of Armed Forces Day Parade 2009, New Light of Myanmar, 28 March 2009. What follows is an excerpt from the speech: “Moreover, to achieve national reconciliation, a welcoming hand was extended in good faith and with goodwill to armed dissident groups that had appeared since independence was gained, in order to facilitate their return to the legal fold”.
19 In December 2009, the UN General Assembly “Strongly call[ed] upon the Government of Myanmar to take urgent measures to put an end to violations of international human rights and humanitarian law, including the targeting of persons belonging to particular ethnic groups” (OP 12). UN General Assembly Resolution on Myanmar, 24 December 2009 (A/RES/64/238).
20 The Kokang are an ethnic minority of predominantly Han Chinese ethnicity concentrated in the self-administrative Kokang region, in northeastern Shan State bordering China. The MNDAA is the Myanmar National Democratic Alliance Army.
21 Amnesty International, Myanmar: Briefing Paper: No Return to ‘Normal’, 9 November 2007 (AI Index: ASA 16/037/2007)
22 Arbitrary detention includes instances in which a person is detained or imprisoned without a legal basis, on the basis of a seriously unfair trial, or on the basis of a law which is impermissibly vague or in violation of other fundamental standards such as the right to freedom of expression.
23 In December 2009, the UN General Assembly “Express[ed] grave concern at the continuing practice of […] torture and cruel, inhuman and degrading treatment, and strongly call[ed] upon the Government of Myanmar to allow a full, transparent, effective, impartial and independent investigation into all reports of human rights violations, and to bring to justice those responsible in order to end impunity for such crimes” (OP7). It also “Express[ed] its concern about the continuing discrimination, human rights violations, violence, displacement and economic deprivation affecting numerous ethnic minorities […] (OP 14). UN General Assembly Resolution on Myanmar, 24 December 2009 (A/RES/64/238).
24 In December 2009, the UN General Assembly "Urg[ed] the Government of Myanmar to release all prisoners of conscience, currently estimated at more than 2,000, without delay, without conditions and with full restoration of their political rights” (OP3), and “call[ed] on the Government of Myanmar to take immediate measures to undertake a genuine dialogue with Daw Aung San Suu Kyi, and all other concerned parties and ethnic groups” (OP 4). Ibid.
25 Annex 1 of UN document A/64/651, available at: http://www.un.org/Docs/journal/asp/ws.asp?m=A/64/651
26 Annex 2 of UN document A/64/651, available at: http://www.un.org/Docs/journal/asp/ws.asp?m=A/64/651
27 Available at: http://www.gmo.ps/ar/?page=news_det&id=3159
28 Status of implementation of the recommendations of the International Fact Finding Mission Report on the Israeli aggression on Gaza 12/2008-1/2009, page 35
29 Follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict, Report of the Secretary General, UN document A/64/651, available at: http://www.un.org/Docs/journal/asp/ws.asp?m=A/64/651