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December 7, 2003 

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Fighting impunity for human rights

Abul Hasnat

The term impunity covers a wide range of situation: lack of punishment, of investigation, of justice. the possibility of committing crimes - from common robberies to rape, torture, murders - without having to face, much less suffer, any punishment. And therefore, the implicit approval of the morality of these crimes. Forgiving and forgetting without remembering - or remembering too well, but not caring - that what is forgotten will be repeated. As thus what is done without any punishment, can be repeated without fear.

The numerous cases and instances around the globe clearly show that the concept of impunity has a strong presence in many sectors of governance. In fact, in many countries of Asia, Africa and Latin America, it becomes a culture, a vicious circle, which breeds further violations of rights, both legal and human. The situation becomes worse in case of criminal justice system. Most of the human rights violations, carried out by different state agencies and people in power, are confidential in nature. Generally, their places of occurrence are shielded from public scrutiny. Evidence, which is vital to the successful prosecution and conviction of the human rights violators, is routinely concealed by the state agencies. The fate of investigation of such violations often becomes uncertain due to the inaction, ineffectiveness, or complicity of the investigating authority. As an obvious consequence, prosecution of the criminals in uniform becomes highly unlikely.

The general picture of the region is one of the colossal violation of rights: torture and extrajudicial killings are endemic; fair trials are in decline; and the cruelest forms of discrimination on the basis of caste, religion, race and ethnicity still persist. Moreover, the denial of economic, social and cultural rights is to such an extent that acute poverty is the most visible aspect of life in the region. Many governments in the world, and almost all governments in Asia, do not honour their obligations under various UN human rights conventions, though they sign, ratify and even become parties to protocols, is quite a common criticism that is being made constantly.

International guarantees against abuses
The violations of national laws and procedures by the law enforcing agencies around the world drew the attention of the United Nations. At its 1976 meeting, the Commission on Human Rights considered the request of the General Assembly to formulate 'a body of principles for the protection of all persons under any form of detention or imprisonment on the basis of the Study of the Right of Everyone to be Free from Arrest, Detention and Exile. The General Assembly's concerns led to the adoption of a draft text by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, which, with amendments, was adopted by the Assembly in 1988. The Body of Principles contains a number of important safeguards, including the right to legal assistance without delay, the right to communicate with the outside world, obligatory record keeping of details of interrogation, medical examination on admission and continuing medical supervision, judicial supervision of all phases of detention, as well as inquiry if demanded, into a death or 'disappearance' occurring during or shortly after detention. One of the important objectives of these principles is to eliminate the increasing practices of impunity around the globe.

In 1979, the General Assembly adopted the Code of Conduct for Law Enforcing Officials. Accordingly the law enforcing officials are expected 'at all times to fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the higher degree of responsibility required by their profession' (article 1). The Code provides that law enforcement officials 'shall not commit an act of corruption', and goes on to oblige them 'rigorously to oppose and combat all such acts' (article 7). It also urges law enforcement officials to 'respect and protect human dignity and maintain and uphold the human rights of all persons' (article 2). Article 3 of the Code provides that 'law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty'.

The Vienna Declaration on Human Rights adopted in 1993 at the World Conference on Human Rights calls on all governments to "abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a farm basis for the rule of law.

International efforts against impunity
In 1998, General Augusto Pinochet was arrested in London after a Spanish judge, Baltasar Garzón, requested his extradition on grounds of complicity in torture. Other European countries followed with their own extradition requests. Five hundred days later - after the House of Lords approved Pinochet's extradition in accordance with the 1984 International Convention against Torture and under a bilateral extradition agreement - a medical team found General Pinochet unfit to stand trial. He was allowed to return to Chile, where a Chilean judge, Juan Guzman, opened an investigation into the crimes of this former head of state. The case was suspended after a second medical examination suggested that Pinochet was mentally unable to participate in the proceedings.

In June 2000, a Senegalese Court indicted the former Chadian president, Hissene Habré, who had fled to Senegal to escape prosecution in Chad for complicity in acts of torture.

In 2001, Lebanese victims of war crimes and crimes against humanity filed a criminal complaint in Belgium against the current Israeli head of the state, Ariel Sharon.

In June 2001, the former President of the Federal Republic of Yugoslavia, Slobodan Milosevic, was extradited to the International Criminal Tribunal for Former Yugoslavia on grounds of war crimes and crimes against humanity.

In September 2001, the family of a Chilean general, René Schneider, filed a suit in Washington against former US National Security Advisor and Secretary of State, Henry Kissinger, accusing him of plotting the general's 1970 assassination. Another complaint against Kissinger was filed in Santiago, Chile, the following day for his role in "Operation Condor." In the preceding months, French, Chilean and Argentine judges had also issued requests to question Kissinger about his knowledge of and involvement in "Operation Condor."

Several other criminal complaints for human rights violations have been filed in national courts against high-ranking public officials and companies, such as the current president of Congo-Brazaville Sassou Nguessou and the French petrol company TotalFinaElf. This has been made possible through the exercise of universal jurisdiction. Several of these complaints have been filed in Belgium, under the 1993 and 1999 amendments to the Belgian law that enable the investigation of crimes against humanity, war crimes, genocide and torture regardless of who, where, when or against whom these crimes were committed.

The international criminal tribunals for Rwanda and the former Yugoslavia currently investigate crimes committed during wars in these territories. An International Criminal Court will be established upon the ratification by 60 countries of the Statute of Rome, negotiated in 1998.

Breaking the cycle of impunity
The alarming trend of torture, rape and death in the hands of the law enforcers exposes once again its inherent tendency of being viewed with a philosophy of paramilitarism associated with the mechanism of awe, threat and coercion. The culture of impunity endorses the existing trend and protects the culprits from being prosecuted. It encourages others to follow the suit, as the criminal justice system is open to manipulation by the agencies.

The law enforcement agencies must be free from all sorts of subjective political interference. The laws regulating their formation, conduct and discipline have to be updated to cope with the changed scenario. Investigation work of such agencies has to be separated from their day-to-day routine work. The investigation of the personnel accused of any crime must be done by a separate, independent agency. A pro-active role of the criminal justice system of the country can make a significant difference. It must be remembered that human rights without adequate remedies are nothing more than a drop in the ocean.

The need of the hour is an organisational culture that condemns abuse of power and misuse of force and encourages pro people policing. All those who are concerned with the arrest, detention, and custody of the people, particularly of the poor and vulnerable sections of the society must strictly implement the constitutional and legal protections and safeguards. It is necessary that the guardians of law and the custodians of lock-ups and prison houses should be made aware of the human, constitutional and legal rights of the people. At the same time, it is of extremely importance to break the cycle of impunity; otherwise, people's confidence in the law enforcing agencies will be totally broken down.

Abul Hasnat is an expert in international human rights law. He also served as Director for Law Watch, a centre for studies on human rights law.
Source of Information: Law Watch, International Campaign against Impunity, Human Rights Watch.

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