As this issue of the ACHR Features is being uploaded, the 60th session of the Commission on Human Rights held a Special Sitting (morning session of 24 March) on the situation in the occupied Palestine and expectedly censured Israel for the murder of Sheikh Ahmed Yassin, the spiritual leader of Hamas on 22 March 2004. The motion for the Special Sitting on Palestine was adopted on 23 March 2004 with 34 votes in favour and 3 against (Eritrea, Australia and USA) with the abstention of the European Union. State terrorism must be the focus when the CHR considers civil and political rights issues during the third week (29 March-04 April 2004).

Since September 11th, Messrs Bush, Blair, Howard and Aznar have been beating around the bush in the war against terror at the expense of rule of law. But the United States' biased attitude towards Israel eludes a just resolution of the Arab-Israeli conflict. Since the Intifadda began in September 2000, about 2,500 Palestinians and Israelis – nearly all civilians have been killed. The disproportionate use of force by Israeli authorities no longer get adequate attention of even some NGOs which appear to have resigned to the obduracy of both the parties and therefore, futility of interventions. Yet, the root cause of socalled Islamic terror and unlawful counter-terrorism measures that the NGOs rightly frown lies in the continued occupation of the Arab territories by Israel. The occupation of Iraq further contributes to the growing terrorism. If State terrorism such as the murder of Yassin is to be addressed by the CHR, it must amend the resolution on “protection of human rights and fundamental freedoms while countering terrorism” (2003/68) and appoint a Special Rapporteur.

During the third week, the CHR will discuss agenda items relating to economic, social and cultural rights, civil and political rights and women rights. The NGOs and Special Procedures of the CHR will focus on countries which were not censured by CHR resolutions but equally deserve to be on the spotlight. 

China: The Crouching Dragon

In a response to the United States State Department's announcement on 20 March 2004 about its decision to sponsor a resolution on China at the ongoing CHR, China has suspended all bilateral discussions with the United States on human rights' issues. With European Union deciding not to co-sponsor the resolution, the United States is unlikely to pass "no-action motion" hurdle - a procedural tactic used by China to avoid any discussion on its human rights record.  At the 57th session (2001), China’s no action motion received 23 votes in favour with 17 against.

The question is whether substantive progress has been made in China where European Union could justify its decisions not to co-sponsor a resolution and consider lifting an arms embargo placed upon China in the wake of the 1989 Tiananmen Square massacre.  Although the Chinese government extended invitations to the U.N. Special Rapporteur for Torture, the U.N. Special Rapporteur for Religious Intolerance and the U.N. Working Group on Arbitrary Detention, conditions imposed by the Government led to the collapse of negotiation with the U.N. Special Rapporteur for Torture. China can also claim that it's police force has been receiving training on human rights under a Technical Cooperation Project from the Office of the High Commissioner for Human Rights. But the effectiveness of training a few hundred policemen in a Police State, which virtually controls dissent by any individual out of 1.3 billion populations, is self-explanatory.

Human rights violations in China, especially in Xinjiang and Tibet, remains deplorable and are justified in the name of countering terrorism. On 16 March 2004, internet dissident Ouyang Yi was secretly tried at the Chengdu Intermediate People's Court without any prior notice to his family or his lawyer. The evidence presented against Ouyang was a copy of the "Open Letter to the 16th Party Congress" disseminated through the Internet. He was sentenced to two years imprisonment.

While censure by the CHR incurs no penalties as reflected from the consistent lack of cooperation with such resolutions by Israel and Cuba with impunity, a resolution undoubtedly puts the spotlight on a country's rights record. It is essential that the United States in its draft resolution, among others, puts the spotlight on the lack of substantive dialogue with His Holiness, the Dalai Lama to resolve the Tibet question.

Iran: Return of the Regime

With about 2500 reformist candidates being disqualified by the Council of Guardians, the victory of the conservatives in the elections in February 2004 for the Majlis of Iran was a forgone conclusion. The violent crackdown on the activists celebrating the International Women's Day in Tehran on 8 March 2004 by members of the vigilante Basij volunteer groups is a stark reminder of the return of the fundamentalist regime.

Human rights situations in Iran have improved little since 2001, the last time the CHR adopted a resolution. The involvement of the government agents in the suspicious deaths and killings and the discrimination against the Baha'is etc are still in place. If the harsh sentences against journalists for participating in the conference held in Berlin in April 2000 evoked international outrage, the brutal killing of Iranian origin Canadian journalist, Zahra Kazemi in June 2003 can not be undermined. On 28 October 2003, the Article 90 Commission of the Majlis in its partially censured report concluded that Prosecutor Mortazavi and other members of the judiciary were directly involved in Ms. Kazemi's death, having subjected her to violent interrogations in Evin prison. The Commission also accused them of attempting to cover up the cause of her death. Yet, as the Special Rapporteur on freedom of expression (E/CN.4/2004/62/Add.2) states that Iranian government is allowing the persons responsible for Mrs. Kazemi's death to remain unpunished.

While during the visit of Working Group on Arbitrary Detention to sector 209 of Evin prison, a guard of the jail tried to pass off as a prisoner, Ahmad Batebi disappeared on 8 November 2003, just after the meeting with the Special Rapporteur on freedom of expression. Batebi, who was sentenced in 2000 to a 15-year prison term after his participation in the July 1999 demonstrations, was in addition charged with "participation in illegal associations" after his arrest on 8 November. This is a clear violation of the Commission on Human Rights resolution 2003/9, which "urges Governments to refrain from all acts of intimidation or reprisal against (a) those who seek to cooperate or have cooperated with representatives of United Nations human rights bodies, or who have provided testimony or information to them; (b) those who avail or have availed themselves of procedures established".

The Commission on Human Rights should adopt a resolution on Iran, among others, to urge Islamic Republic of Iran to punish the culprits responsible for the death of Zahra Kazemi and to immediately release Ahmad Batebi.

Nepal: Dealing with a failed State

Situations similar to the one prevailing in Nepal is familiar to the Commission on Human Rights. Over 1000 persons have been killed since the collapse of the cease-fire agreement between the insurgent Maoists and the government of Nepal on 27 August 2003. As the conflict intensifies, Nepal gradually descends to anarchy. King Gyanendra has been ruling the “Democratic Nepal” with a proxy government of the royalist Rashtriya Prajatantra Party that has no mandate from the people of Nepal. After the virtual coup on 4 October 2002, the King's honeymoon with the Maoists was short-lived. Subsequent human rights record has been abysmal.

Nepal is caught in a full scale civil war with half of the country being under the control of the Maoists. Apart from the Terai region, the Nepalese government's control across the country is restricted to the Offices of the Chief District Officers or security camps. As neither the Communist Party of Nepal (United Marxist-Lennist) nor both factions of the Nepali Congress (Deuba and Koirala factions) were sure of the outcome of the elections, then Prime Minister Sher Bahadur Deuba had no alternative but to suggest formation of a national government. The King known for his appetite for power dismissed the Prime Minister Sher Bahadur Deuba government on 4 October 2002. International community remained silent against the Royal coup in the name of countering the Maoists. After the dispensation of absolute rule in the last one and half years, the possibility of holding free and fair elections in Nepal remains a mirage. While the Maoists continue to rule half of the country; the King rules the other half.

There is no alternative to dialogue. Attempts by national interlocutors have been unsuccessful. The overtures from the Office of the Secretary General have been rejected. Those who arm Nepal (India, Belgium and USA) and those who oppose international mediation (India) are pushing Nepal on the brink of collapse - to become a typical failed State.

If the CHR were to adopt a resolution on the human rights situation in Nepal, it must go beyond what is already being done at national level. The National Human Rights Commission of Nepal has already been monitoring violations. The Supreme Court of Nepal in a judgement on 20 March 2004 directed the government to formulate comprehensive laws to enforce the Geneva Convention. The apex court also ordered the government to constitute a national body to take up cases relating to the violation of the Convention.

As South Asian Association for Regional Cooperation (SAARC) does not have mechanisms to address such issues, it is time that United Nations is allowed to play its role. At the 60th session, the CHR should adopt a resolution condemning continuing violations of international human rights and humanitarian law by the Maoists and the security forces, to provide greater access to the International Committee of Red Cross, to establish a monitoring mission of Office of the High Commissioner for Human Rights, to urge the government issue a standing invitation to the thematic Special Procedures to visit Nepal and to request the High Commissioner to present a report at the 61st session under agenda item 9.

Indonesia: Undue advantage for colonial designs

After the visit of the Swedish prosecutors to Aceh from 18-21 March 2004, it is unlikely that a resolution against Indonesia will be moved at the ongoing CHR despite gross human rights violations. On 16 February 2004, Swedish judicial authorities decided to initiate a preliminary investigation into the alleged link between the leaders of the separatist movement GAM, residing in Sweden, and acts of terrorism and other criminal activities in Indonesia for which GAM is held responsible by the Indonesian authorities. In June 2003, an Indonesian delegation led by Ali Alatas visited Stockholm and delivered a dossier to the office of the public prosecutor alleged to contain legal evidence pertaining to the link between the leadership of the GAM residing in Sweden and "acts of armed rebellion, terrorism and other criminal activities of GAM in Indonesia". The prosecutor examined the material and in August 2003, asked for certain additional information from the Indonesian authorities. In December 2003, Indonesian government provided supplementary information and the prosecutor decided to initiate a preliminary investigation.

While international community has been rightly urging the Government of Indonesia as well as GAM to do everything possible to reach a peaceful solution based on the law on special autonomy for Aceh (NAD) of August 2001, the question is whether Jakarta could be trusted with its Special Autonomy Laws.

The experience of the Papuan Special Autonomy Law is instructive. Instead of implementing the Papuan Special Autonomy Law, President Megawati Sukarnoputri issued a Presidential Decree in January 2003 to divide Papua into three parts. President Suharto had earlier rejected the possibility of dividing then Irian Jaya into three parts in 1984. However, on 16 September 1999, the Indonesian parliament passed Law No. 45 mandating the division of Irian Jaya into West Irian Jaya, with its capital in Monokwari; Central Irian Jaya, with its capital in Timika; and the rump Irian Jaya, with its capital in Jayapura. However, the provincial parliament (Dewan Perwakilan Rakyat Daerah) rejected it and recommended repeal of Law No. 45. As President Wahid took over from President Habibi, Law No. 45 remained in legal limbo, rejected but neither repealed nor implemented. However, Article 76 of the Papua Special Autonomy Law, which was adopted later, superseded the Law No.45 over the division of Papua.

In clear violation of the Article 76 of the Papua Special Autonomy Law, President Megawati's Instruction (Inpres) No.1 of 2003, called for the speed up implementation of Law No. 45. The Instruction seeks to establish the provincial governments for West Irian Jaya and Central Irian Jaya (the existing provincial government in Jayapura would stay on to administer the rump province, called Irian Jaya); determine the borders of the three provinces; give guidance to the two new provinces on the creation of provincial parliaments; and activate the positions of governor and other parts of the government apparatus for the two new provinces and preparing the necessary facilities. It called on the Minister of Finance to prepare a special budget, on the governor to support the implementation by seconding necessary staff and the Minister of Home Affairs to provide necessary technical assistance.

At least three people have been killed during a clash between rival groups supporting and opposing the formation of the West Irian Jaya province after Law No. 21/2001 was passed. The division of West Papua is supported by the Indonesian Military (TNI) for business reasons and by Megawati's Indonesian Democratic Party of Struggle (PDI-P), which wants to end the Golkar Party's domination of the province.

Although the official announcement of the new Central Irian Jaya province was suspended following bloody protests by indigenous Papuans in August 2003, Papua has already been divided with the formation of West Irian Jaya province and the naming of Abraham Octavianus Atururi as acting governor.

LMG: Making the CHR redundant

Launching its onslaught against any possible censure, the Permanent Representative of China speaking on behalf of the Like Minded Group consisting of Bhutan, China, India, Iran, Malaysia, Myanmar, Nepal, Pakistan, Sri Lanka, Vietnam, Algeria, Cuba, Egypt and Sudan on the organisation of work on 15 March 2004 suggested that country resolutions under Agenda Item 9 be done away with. There are few takers of such a proposal at the moment but LMG’s main architect, Cuba has already been leading the assault on the CHR and its mechanisms.  Accusing the west of over emphasizing on civil and political rights issues, Cuba has championed the economic, social and cultural rights. At the 58^th session Cuba sponsored resolution "Promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities" with the possibility of appointing a Special Rapporteur. In its three paragraphs report (E/CN.4/2003/51) to the 59^th session, High Commissioner concluded, “No new information has been received concerning the above-mentioned resolution since the Secretary-General's report to the General Assembly on human rights and cultural diversity (A/57/311 and Add.1)".  Yet the same resolution was adopted at the 59^th session and at the 60th session, majority respondent States opined against the appointment of a Special Rapporteur. Nonetheless, Cuba is all set to sponsor the same resolution at the 60th session.

If France could sponsor the resolution on human rights and extreme poverty (2003/24), how could Cuba and LMG be left behind on civil and political rights? Not to be accused of any biasness against civil and political rights, Cuba and the LMG have been sponsoring redundant resolutions. These resolutions require little elaboration and are already implicit in existing standards such as strengthening of popular participation, equity, social justice and non-discrimination as essential foundations of democracy (2003/35); interdependence between democracy and human rights (2003/36); integrity of the judicial system (2003/39), combating defamation of religions (2003/4), the incompatibility between democracy and racism (2003/41), promotion of peace as a vital requirement for the full enjoyment of all human rights by all (2003/61), promotion of a democratic and equitable international order (2003/63), the role of good governance in the promotion of human rights (2003/65) etc. Not surprisingly China considers the amendment of its constitution to include "The State respects and protects human rights" at the recently concluded 16th National Peoples Congress as a giant step. To remind the readers about the Chinese government's concept of human rights, alleged circulation of an "Open Letter to the 16th Party Congress" warranted a sentence of two years imprisonment.