The complexity that human rights work has acquired, and the diversity of opportunities for advocacy and action, have increasingly demanded that Human Rights Watch undertake cross-regional or thematic initiatives involving a specialized focus or expertise. At times, those initiatives consist of a single opportunity to make our voice heard on a crucial issue, but often they take the form of campaigns that have become a sensational part of our program. Some of the issues in which we undertook or maintained special initiatives in 1997 included the following:
Prison massacres, dramatic protests, and violent guard abuse earned occasional news headlines in 1997, but the deplorable daily living conditions that were the plight of the great majority of the world's prisoners passed largely unnoticed. With scant public attention to the topic in most countries, correspondingly little progress was made in rectifying the abuses routinely inflicted in prisons and other places of detention. Many countries, moreover, fostered public ignorance of prison inadequacies by denying human rights groups, journalists, and other outside observers nearly all access to their penal facilities. A smaller group of countries, including China, Cuba, and Peru, even barred the International Committee of the Red Cross (ICRC) from providing basic humanitarian relief to people in their prisons.
Unchecked outbursts of prison violence continued to violate prisoners' right to life. The August 28 killings of at least twenty-nine prisoners in a remote jungle facility in Venezuela led the country's Justice Ministry, charged with prison administration, to promise reforms, and its Public Ministry to conduct an extensive investigation of the incident's causes. The Tajikistan government, earlier in the year, chose to cover up an even bloodier prison massacre. Although information about the events was scarce, reports indicated that in mid-April the Tajik security forces stormed a prison in the northern city of Khujand, killing over a hundred prisoners. Earlier that week, inmates had rioted and taken several guards hostage to protest life-threatening detention conditions. Ignoring Human Rights Watch's request for information and its calls for a thorough and impartial investigation of the incident, the Tajik government apparently took no action to punish those responsible for the deaths.
In Morocco's Oukacha prison, twenty-t prisoners were burned alive in early September; they had been crammed together in a cell reportedly built to hold eight. The cause of the fire was not announced, but the country's Justice Ministry did acknowledge that overcrowding might have played a role in the deaths.
The most common cause of death in prison was disease, often the predictable result of severe overcrowding, malnutrition, unhygienic conditions, and lack of medical care. A special commission of inquiry, appointed after the 1995 death of a prominent businessman in India's high-security Tihar Central Jail, reported in September that the 10,000 inmates held in that institution endured serious health hazards, including overcrowding, "appalling" sanitary facilities, and a shortage of medical staff. Similar conditions prevailed in the prisons of the former Soviet Union, where tuberculosis continued its comeback. Russia's prosecutor general announced in March that about 2,000 inmates had died of tuberculosis in the previous year.In Kazakhstan, the disease, including drug resistant strains, reached epidemic proportions. AIDS also plagued many prison populations.
Inadequate supervision by guards, easy access to weapons, lack of separation of different categories of prisoners, and fierce competition for basic necessities encouraged inmate-on-inmate abuse in many penal facilities. In extreme cases-as in certain Venezuelan prisons with one guard for every 150 prisoners, and an underground trade in knives, guns, even grenades-prisoners killed other prisoners with impunity. Rape, extortion, and involuntary servitude were other frequent abuses suffered by inmates at the bottom of the prison hierarchy.
In contrast, powerful inmates in some facilities in Colombia, India, and Mexico, among others, enjoyed cellular phones, rich diets, and comfortable lodgings. With guard corruption rampant in so many prisons around the world, the adage "you get what you pay for" was only too appropriate. Indeed, in Indonesia, two prisoners reportedly escaped in September after bribing guards to bring them to a brothel.
Besides corruption, physical abuse by guards remained a chronic problem. Some countries continued to permit corporal punishment and the routine use of leg irons, fetters, shackles, and chains. The heavy bar fetters used in Pakistani prisons, for example, turned simple movements such as walking into painful ordeals. In many prison systems, unwarranted beatings were so common as to be an integral part of prison life. Women prisoners were particularly vulnerable to custodial sexual abuse. In the aftermath of prison riots or escapes, physical abuse was even more predictable, and typically much more severe.
Overcrowding-prevalent in almost every country for which information was available-was at the root of many of the worst abuses. The problem was often most severe in smaller pretrial detention facilities, where, in many countries, inmates were packed together with no space to stretch or move around. In some of Rwanda's cachots (local lockups), where a large proportion of the country's approximately 120,000 detainees were held, overcrowding was so acute as to be life-threatening. In Rwanda and elsewhere, even large prisons were crowded far beyond their capacity. Panama's Modelo prison, for example, held over ten times the number of prisoners it was built to hold. So notorious were its conditions that, in a symbolic choice of dates, the government finally demolished it on International Human Rights Day in December 1996.
The Modelo prison was built in 1917, exemplifying another common problem: that of old, antiquated, and physically decaying prison facilities. Nineteenth-century prisons needing constant upkeep remained in use in some countries, including the United States, Mexico, Russia, and the United Kingdom, although even many modern facilities were in severe disrepair due to lack of maintenance. Notably, many prisons lacked a functional system of plumbing. In Hong Kong, one of the most prosperous and technologically advanced places in the world, prisoners in some older facilities had to "slop out," that is, to defecate in plastic buckets that they were periodically allowed to empty. In Venezuela, inmates in parts of some facilities did not even get buckets; they resorted to defecating in newspapers that they threw out the window.
Conditions in many prisons were, in short, so deficient as to constitute cruel, inhuman or degrading treatment, violating article 7 of the International Covenant on Civil and Political Rights. Their specific failings could also be enumerated under the more detailed provisions of the U.N. Standard Minimum Rules for the Treatment of Prisoners. A widely known set of prison standards, the Standard Minimum Rules describe "the minimum conditions which are accepted as suitable by the United Nations." Although the Standard Minimum Rules have been integrated into the prison laws and regulations of many countries, few if any prison systems observed all of their prescriptions in practice.
The poor prison conditions existing in many countries arose from a complex of causes. Fiscal constraints and competing budget priorities were surely a factor in most countries, although these pressures were never a valid excuse for violating minimum standards of decency. In other countries, an element of deliberate cruelty seemed evident. For example, describing some prisoners as "animals that must never see sunlight again," South Africa's corrections commissioner released a March statement in favor of converting disused mine shafts into super-maximum security penal institutions.
Even those unsympathetic to convicted criminals and entirely skeptical of the idea of rehabilitation should nonetheless be concerned about the inhumane treatment of prisoners. Although comprehensive figures were impossible to obtain, the available statistics showed that an impressive proportion of the world's prisoners had not been convicted of any crime, but were instead being preventively detained at some stage of the trial process. Some of these detainees-who under basic human rights standards are presumed innocent and should be treated as such-had been confined for years before being acquitted of the charges against them. The Nigerian government's national human rights commission reported in September, for example, that at least 60 percent of the country's prisoners were pretrial detainees, and at least half of them had been awaiting trial for more than five years.
Shielded from public view, and populated largely by the poor, uneducated, and politically powerless, prisons tended to remain hidden sites of human rights abuse. By struggling against this natural tendency toward secrecy and silence, the efforts of numerous local human rights groups around the world-who fought to obtain access to prisons, monitored prison conditions, and publicized the abuses they found-were critical in 1997, as in the past. In some countries, moreover, government human rights ombudspersons, parliamentary commissions, and other monitors helped call attention to abuses. In South Africa, notably, the national human rights commission conducted numerous investigations into prison conditions, resulting in substantial public criticism of prison authorities.
At the regional level as well, prison monitoring mechanisms were active. The European Committee for the Prevention of Torture (CPT) continued its important work, inspecting the penal institutions of approximately a dozen countries in 1997, including those of Turkey, Spain, and Estonia. In December 1996, the CPT released a public statement on Turkey, declaring that "the practice of torture and other forms of severe ill-treatment of persons in police custody . . . remained widespread."
In Africa, the recently-appointed special rapporteur on prisons and conditions of detention, an adjunct to the African Commission on Human and Peoples' Rights, began work in January 1997 and made an initial fact-finding mission to Zimbabwe in early March. Human rights organizations with observer status at the commission reported, however, that the special rapporteur's oral report on his mission presented an insufficiently detailed or critical view of the country's prison situation. (As of October, no written report had yet been released.) In August, the special rapporteur inspected prisons in Mali.
Protests, Riots, and Killings
in Latin American Prisons
Like 1996, 1997 was an eventful year in the prisons of Latin America, which held approximately half a million inmates. Conditions continued to stagnate-and even to worsen in some countries-inspiring dramatic forms of prisoner protest. Massacres, riots, and other violent incidents struck prisons across the region, further evidencing the failure of Latin America's penal systems.
Prison unrest erupted over the course of the year in Bolivia, Brazil, Colombia, Ecuador, Guyana, Honduras, Jamaica, Mexico, Panama, Peru, and Venezuela. In Brazil alone, there were over sixty prison riots in the first six months of the year. Fifty-two hostages were taken in one such mutiny at a São Paulo prison in August. In Bolivia, thousands of prisoners went on a hunger strike in March to protest the slow pace of the judicial system and the uneven application of the parole law; several of them sewed their mouths shut to dramatize their plight.
As exemplified by the Bolivian protest, prisoners in Latin America were subject not only to horrendous conditions of confinement but to entire criminal justice systems in need of reform. Prisons around the region were filled with procesados: inmates whose cases languished at some stage of the criminal process. Indeed, some 90 percent of Honduran, Paraguayan, and Uruguayan inmates were unsentenced, while in the Dominican Republic, Panama, Haiti, El Salvador, Peru and Venezuela, the proportion of unsentenced inmates ranged from 65 to 85 percent. The slow pace of criminal proceedings, combined with the routine denial of pretrial release, was at the origin of these unhappy statistics.
Human rights ombudspersons from all over Latin America discussed the state of the region's prisons at a February conference on prison overcrowding that was organized by ILANUD, the U.N. criminal justice institute for Latin America; their reports paint a depressing picture of prisons in crisis. The ombudsperson for El Salvador, for example, spoke of the "systematic violation of the human rights of the prison population" and the unfortunate reality of "cruel, inhuman, and degrading treatment." The Guatemalan representative compared his country's prison conditions against the U.N. Standard Minimum Rules for the Treatment of Prisoners and the Guatemalan Constitution, concluding that neither set of standards was obeyed. With regard to Mexico, the capital's human rights commission confirmed that the majority of the country's prisons "lack basic services," and that inmates "enjoy privileges or suffer wants depending on their economic resources." Other countries' delegates made similar reports.
An encouraging contrast to this generally bleak picture were the vigorous efforts of numerous Latin American countries in working to establish a U.N. mechanism to monitor the treatment of persons deprived of their liberty (described below). Latin American delegates, particularly the representatives of Argentina, Chile, Costa Rica, and Uruguay, were key players in the U.N. debates on the proposed monitoring body, presenting compelling arguments in support of a strong and effective mechanism.
U.N. Prison Monitoring Effort
The vast scale and chronic nature of the human rights violations in the world's prisons have long been of concern to the United Nations, as demonstrated by the 1955 promulgation of the U.N. Standard Minimum Rules for the Treatment of Prisoners. Indeed, the internationalcommunity's failure to adopt these standards in practice, even while it has embraced them in theory, has inspired the United Nations' most recent prisons effort.
For the past several years, a U.N. working group has been hammering out a draft treaty that would establish a U.N. subcommittee authorized to make periodic and ad hoc visits to places of detention in states party to the treaty, including prisons, jails, and police lockups. As described in the draft treaty-conceived as an optional protocol to the Convention Against Torture-the basic goal of the subcommittee would be to prevent torture and other ill-treatment. Accordingly, based on the information obtained during its periodic and ad hoc visits, the subcommittee would make detailed recommendations to state authorities regarding necessary improvements to their detention facilities, and the authorities would be expected to implement these recommendations.
Although the proposed monitoring mechanism had great promise, it also had serious potential flaws. Notable among them was the possibility that the subcommittee could be entirely barred from reporting publicly on abuses it discovers, pursuant to a strict rule of confidentiality that some countries have advocated. Although the draft treaty favored cooperation between governments and the subcommittee as a means of instituting remedial measures, it must, if it is to create an effective mechanism, leave open the possibility of public reporting, at least in situations where governments stubbornly refuse to cooperate with the subcommittee or to implement its recommendations.
The working group met for its sixth session in October 1997, reaching negotiated agreement as to the content of several draft provisions. Although most countries active in the deliberations-including South Africa, the Netherlands, Denmark, Sweden, Australia, and several Latin American countries-clearly favored establishing a strong and workable mechanism, a few recalcitrant states were able to hinder the working group's progress toward this goal. Because the proceedings were conducted on a consensus basis, rather than by simple majority vote, a small minority of countries could have an exaggerated impact on the draft text. As of this writing, the working group has not yet taken a definitive position on public reporting and other fundamental issues, but there is fear that given this consensus approach the lowest common denominator could prevail.
Relevant Human Rights Watch reports:
Cold Storage: Super-Maximum Security
Confinement in Indiana, 10/97
Hong Kong: Prison Conditions in 1997, 6/97
Punishment Before Trial: Prison Conditions in Venezuela, 3/97
All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, 12/96
AND HUMAN RIGHTS
The debate on corporate responsibility for human rights captured broad public interest worldwide in 1997. Local activists at the point of production, supported by advocacy groups in the United States, Canada, the European Union, and Asia, spurred a steady stream of reports, counter-reports, articles, and press releases. These documented and/or refuted allegations of physical abuse and suppression of freedom of association and expression against women workers. In total, this discourse underscored how far the debate had moved from earlier discussions of whether corporations even had a responsibility for human rights. The focus of the intensifying debate increasingly centered on the steps companies needed to take to make their codes of conduct meaningful. Responding to mounting public concern, several U.S. apparel and footwear corporations attempted to grapple with new implementation methods for their codes. At the same time, allegations of human rights abuses at plants contracted by Nike Incorporated in Asia provided a concentrated focus of attention throughout the year.
The debate, while still centered in the apparel, footwear, food and rug industries, expanded beyond these sectors to touch the multinational oil companies. Feeling the sting of allegations of complicity in rights violations and their effect on corporate image, a few of the oil giants made general commitments to human rights without the programmatic steps to implement them. In 1997, the Canadian, British, German and U.S. governments, as well as intergovernmental bodies and agencies like the European Parliament and the International Labour Organisation, were drawn into the debate. There was some progress, stemming in part from Human Rights Watch's work. In March, General Motors, in response to the 1996 Human Rights Watch Women's Rights Project report on forced pregnancy testing in the maquiladoras (export-oriented assembly plants) of northern Mexico, announced that it was ending its practice of pre-hire pregnancy screening; the new policy was implemented on April 1. In August, seventeen U.S. manufacturers of anti-personnel mine components agreed to cease their involvement in landmine production following an April report issued by the Human Rights Watch Arms Project. As a result of campaigning on Burma by an international coalition of human rights groups, including Human Rights Watch, a few companies ceased production there.
The Apparel Industry
Across the globe corporations and their critics debated monitoring. In May, the director-general of the International Labour Organisation floated a proposal for a " global social label" to tag goods produced according to core labor standards. He suggested that specific country labeling would be a more effective check on labor rights violations than voluntary codes of conduct. In May, following reports of worker abuse and child labor in the textile industry in South Asia, members of the European Parliament adopted a resolution calling on the European Commission to adopt E.U. legislation to ensure that clothes, shoes, and carpets imported from developing countries would be labeled to indicate that worker rights had been respected. A high-profile, tripartite attempt occurred in the United States with the work of the White House-convened Apparel Industry Partnership. The partnership, a group of U.S.-based apparel and footwear manufacturers, labor unions, and nongovernmental organizations, was launched by President Clinton in 1996 to formulate a global code of conduct to eradicate sweatshop practices in the companies' operations, both in the U.S. and abroad. The companies included L.L. Bean, Liz Claiborne, Nike, and Phillips-Van Heusen, among others. After eight months, on April 18, the partnership issued an interim report. Its "Workplace Code of Conduct" consolidated and advanced the best of the existing U.S. voluntary company codes of conduct on freedom of association and expression. It prohibited forced labor, child labor, harassment of employees in the workplace, and discrimination, as well as recognizing the rights to freedom of association and collective bargaining. It also attempted to address minimum standards on health and safety, wages and benefits, and overtime. The provisions on wages, benefits and overtime were criticized by some analysts who saw them as insufficient to meet workers' basic needs and sanctioned excessively long working hours. The report's "Principles of Monitoring" defined company responsibilities in internal monitoring. These required companies to publicize their codes actively in the workplace, articulate employee notification of workers' rights and responsibilities, and conduct periodic audits to ensure compliance with the code.
The most important, and divisive, element of the Apparel Industry Partnership's report was the section on independent external monitoring. In 1996, apparel and footwear companies had resisted independent monitoring of their codes. By 1997, however, several companies had accepted the fact that their voluntary efforts would not be credible unless compliance could be independently verified. Others, however, opposed independent monitoring. Two of the corporate members, Warnaco Incorporated and Karen Kane Incorporated, claimed that independent monitoring would jeopardize essential trade secrets and that internal monitoring procedures afforded adequate safeguards. These corporations withdrew from the partnership in opposition to any plans for independent monitoring involving local religious, labor, or human rights organizations in the countries where operations are based. The April report's section on this issue left the essential elements of independent monitoring unresolved. The report required only that local human rights, labor rights, religious or other similar institutions be "consulted." Furthermore, creating no role for public accountability, the report omitted a disclosure requirement that monitors' evaluation reports be made public. As of November, the partnership was continuing its attempt to resolve the outstanding differences over independent monitoring and establish an association empowered to supervise adherence with the code in a meaningful way. Human Rights Watch, believing that it could better contribute by remaining outside this group, was not a participant in the Apparel Industry Partnership.
The appeal of voluntary codes of conduct and the debate over their implementation spread in 1997. The export manufacturers association in Guatemala, VESTEX, announced the promulgation of its own voluntary code of conduct, and the Guatemalan subsidiary of the U.S. accounting firm, Ernst & Young, conducted several audits of its implementation. In contrast to this auditing, during 1997 a coalition of Guatemalan religious, human rights and labor groups had formed a committee to monitor corporate codes of conduct. Parallel efforts were also underway in El Salvador, where working conditions and hiring practices of multinational corporations and their subcontractors had received bad publicity. In May 1997, the Salvadoran clothing manufacturers association, ASIC, announced that it had formulated its own code of conduct. ASIC likened the code to the Apparel Industry Partnership's effort and stated that it would use international auditing companies "to certify that international norms are not violated." According to one Salvadoran newspaper headline, the widespread adoption of the code would "eliminate the effects of international campaigns." The manufacturers' undertaking stood in contrast to work already in place, specifically that of the Independent Monitoring Commission which is composed of members of Salvadoran nongovernmental organizations and which monitors the Mandarin plant in the San Marco free trade zone.
Responding to the calls for transparency in monitoring, the world's largest accounting firms, such as Ernst & Young and Coopers & Lybrand, presented themselves as independent monitors able to perform social audits. While Ernst & Young did a commendable job in documenting egregious health and safety violations at a Nike contractor in Vietnam, the competence of accounting firms to conduct sensitive human rights investigations, combining testimonial evidence with statistical analysis, was doubtful. Despite the importance of active guidance and participation of local human rights defenders, the large firms' social "auditing" would involve these knowledgeable, activist groups in minimal consultation, at best. In addition, the firms would simply convey their findings to their employers, the contracting companies, with no provision for the public disclosure or accountability necessary to establish and maintain effectiveness and credibility. The effect of this lack of transparency was highlighted in early November with media reports on an Ernst & Young audit of a Nike contractor in Vietnam. The document, issued on January 13, 1997, detailed numerous violations of health and safety and wage and hour standards in Nike's facilities but had remained an internal and confidential report until it was leaked to the press by an inside source.
While several U.S. footwear and apparel companies were actively exploring the possibility of independent monitoring as of November, the only functioning-and quite effective-locally-based independent monitoring program in existence was the program implemented at the Mandarin factory, a supplier to Gap Incorporated, in El Salvador.
The sharpest and most persistent controversy over corporate responsibility for human rights and independent monitoring of company codes of conduct swirled around the practices of Nike contractors in Vietnam, China, and Indonesia. Vietnam Labor Watch (not affiliated with HumanRights Watch) issued a report in March citing physical abuse of workers at a Nike contractor in Vietnam. In Indonesia, workers at Nike subcontractors went on strike to demand payment of the country's newly promised minimum wage. In the face of repeated allegations by international and regional investigators of abusive labor practices at subcontractor facilities in those three countries, Nike hired former U.S. Ambassador to the United Nations Andrew Young and his consultancy firm, GoodWorks, to conduct an audit of Nike facilities in all three countries. The methodology employed by Ambassador Young was disturbingly flawed: he spent very limited time at each facility; interviewed workers at random on company premises; and conducted the interviews with the assistance of company-supplied translators. Such methods reinforce the strain on those workers selected for interviews and make it difficult, if not impossible, to unearth patterns of subtle but invidious harassment. Ambassador Young's report, released in June, found that Nike facilities were generally respectful of human rights and that there was "no evidence or pattern of widespread or systematic abuse or mistreatment of workers" in the factories he had visited.
Ambassador Young recommended that the company should more actively publicize its code of conduct in supplier factories, implement an independent monitoring system, and organize a committee of "distinguished individuals" to perform spot-checks at their factories abroad. Following the report, Nike took out full-page advertisements in several newspapers, including the New York Times, USA Today, and the Washington Post, publicizing the findings as a vindication of its corporate image and standards. The subsequent public disclosure of the January Ernst & Young internal report on Nike facilities in Vietnam cast doubt on whether the company would implement these recommendations in good faith.
In contrast to Ambassador Young's findings, the Hong Kong-based Asia Monitor Resource Center and the Hong Kong Christian Industrial Committee released a report drawn from their investigations of Nike (and Reebok) contractors in south China. Highlighting the different findings that emerge from widely varying orientations and methodologies, this investigation documented very different conditions than those reported by Ambassador Young. The two groups found consistent patterns of labor rights violations in Nike contractor facilities in China. They found that freedom of association was "harshly repressed" and that there were no independent trade unions or nongovernmental organizations available to represent workers. The report also documented pregnancy-related discrimination and illegal firings because workers over the age of twenty-five were considered "too old" by factory management.
That report concluded that conditions in the Chinese facilities were in gross violation of the Nike (and Reebok) codes of conduct, the Apparel Industry Partnership's "Workplace Code of Conduct," and Chinese labor law. Based on their findings, the organizations argued that until real independent monitoring could be implemented in Chinese factories, labor rights violations would continue unabated. The report was released just prior to the Nike annual shareholder meeting in September. At that meeting, Nike claimed that it had investigated the report's allegations and had found them to be erroneous. Unfortunately, Nike management responded to the allegations by sharply attacking the bona fides of the Hong Kong-based monitors. A company press release stated, "Enough is enough. It's time for the public magnifying glass to be focused back on these fringe groups, which are again using the Internet and fax modems to promote mis-truths and distortions for their own purposes."
Also at the shareholder meeting, Nike management announced that it had severed relations with four Indonesian contractors on the grounds that they did not meet the company's code of conduct requirements. Specifically, there was a disagreement over payment of wages to workers at these facilities. Nike also announced at the meeting that it would distribute wallet-sized cards, with its code of conduct printed in eleven languages to all its employees. These actions resulted in the withdrawal of a shareholder resolution, filed by the General Board of Pensions and Social Responsibility of the United Methodist Church, seeking reforms in Nike's overseas labor practices. No further commitments to establish independent monitoring as called for by Ambassador Young were made known by the company.
In October, a coalition of U.S.-based women's groups, including the National Organization for Women, the Ms. Foundation for Women, and the Feminist Majority, launched a campaign against Nike in order to highlight the problems female workers faced at Nike's Asian contractor facilities. The coalition noted that, "While the women who wear Nike shoes in the United States are encouraged to perform their best, the Indonesian, Vietnamese and Chinese women making the shoes often suffer from inadequate wages, corporal punishment, forced overtime and/or sexual harassment." The campaign called on Nike to allow independent monitors into their facilities abroad and to address issues related to the treatment of women and wage issues in Nike contractor operations.
Another example of the critical importance of independent monitoring, this one involving Human Rights Watch, was demonstrated in the controversy at the Phillips-Van Heusen (PVH) factories in Guatemala. Starting in September 1996, Van Heusen was confronted by allegations from union organizers and international labor rights activists that its workers' rights to free association, specifically their right to engage in collective bargaining, at PVH's Camisas Modernas factories was being suppressed. Local labor activists also alleged that union members were being pressured to resign from the union and the company with offers of large severance packages. Because a member of the Human Rights Watch board of directors served as the chief executive officer (CEO) of the company, Human Rights Watch staff members agreed to go to Guatemala to investigate the allegations on-site. In January, Human Rights Watch sent a team to determine whether the union had gathered the 25 percent support necessary under Guatemalan labor law to compel the company to engage in collective bargaining and whether company management had harassed or discriminated against union activists. Based on the investigation, during which the organization received cooperation from both the company and the union, Human Rights Watch released a report which found that the union had met the critical 25 percent support threshold and that the Guatemalan Labor Ministry had failed in its duty to resolve the conflict between the union and the company over union strength. Furthermore, our investigation found that union members had faced subtle but pernicious forms of discrimination, including deprivation of earnings and large severance packages in exchange for their resignations.
On receiving an advance copy of the report, the CEO of Phillips-Van Heusen announced that the company accepted the findings on union support and would immediately begin collective bargaining negotiations. In August, negotiations between the company and union resulted in the first-ever collective bargaining agreement in the Guatemalan maquiladora sector. At this writing, the agreement awaits approval by the Guatemalan Ministry of Labor.
The Oil Industry
Increasingly, multinational oil companies, expanding exploration and drilling operations to states ruled by governments that are serious human rights violators, were criticized for the human rights consequences of partnering with those governments. Operations in such human rights trouble spots as Colombia, Nigeria, and Burma repeatedly received press attention.
In 1997, faced with an increase in guerrilla attacks and paramilitary activity, multinational oil companies operating in the Casanare and Arauca regions of Colombia found themselves deep in controversy over the human rights implications of their security arrangements with the Colombian Defense Ministry. In November 1995, the companies had signed agreements with the armed forces, committing to pay U.S.$2 million annually to a military institution known for abusing human rights with impunity, for protection of their pipelines and installations from guerrilla attack.
In Casanare, the consortium operating the massive Cusiana-Cupiagua oil fields comprised British Petroleum (BP), TOTAL Exploratie en Produktie Maatschippij B.V. (TOTAL), Triton Energy, and the state-owned ECOPETROL. Arauca province was the site of the Occidental Petroleum, Royal Dutch/Shell, and ECOPETROL consortium's Cano Limón-Covenas oil fields and pipeline. By putting the companies in a new relationship to the military, the contracts had raised serious questions. The direct contracts signed with the Ministry of Defense inappropriately tightened the companies' relations with an abusive military and compounded the fundamental problem: that the companies relied on that abusive military institution for security and thereby assumed a responsibility to take concrete, programmatic measures to prevent violations and to confront those that may arise. Yet, the companies took little action regarding human rights. For instance the agreements with the Defense Ministry failed to mention human rights compliance as a condition of contract. In addition, abuses that have been attributed to the military units defending the companies have not received a strong response from the companies. Some have been completely ignored.
Controversy over the companies' relations with Colombian military and police was particularly active in Britain. A World in Action documentary on the BBC reported, among other things, that the U.K.-based private security firm that BP had contracted to protest the Casanare installations had been involved in training Colombian police not only in security, but also, in counterinsurgency techniques. Responding to various media reports, British-based rights groups sharply criticized the new Labour government for appointing Sir David Simon, the CEO of British Petroleum, as minister of trade and competitiveness in Europe.
Human Rights Watch called on the partners in the Arauca consortium to disclose publicly the contents of their contract with the Colombian military. As of this writing, neither Occidental nor Shell has made any public statement as to how human rights may be respected in the course of their Colombian operations, but by November some of the companies were saying that they would no longer continue the contract with Colombia's armed forces. Nonetheless, they will continue to rely on the military and police to protect their companies under a payment scheme that, at this writing, is still being negotiated.
In the case of Shell, human rights concerns were not limited to company operations in Colombia. In March, following two years of criticism for its partnership with the Nigerian government and the role the company had played in events leading to killings in Ogoniland, Shell announced that it would explicitly acknowledge respect for human rights and the environment in its revamped internal code of conduct. As part of its general business principles, the company expressed "support for fundamental human rights in line with the legitimate role of business." The announcement was hailed as a breakthrough in that Shell had acknowledged that its operations had a significant impact on human rights. However, beyond the inclusion of this very vague language, it was unclear what specific steps the Royal Dutch/Shell group of companies would take to put those words into practice.
On May 14, at the annual general meeting of the Shell Transport and Trading Company in London, management soundly defeated a resolution brought by the socially responsible investment organization, Pensions and Investment Research Consultancy (PIRC), to conduct an independent audit of its human rights and environmental policies. The resolution was brought on behalf of various nongovernmental organizations including Friends of the Earth, the World Development Movement, and the Movement for the Survival of the Ogoni People (MOSOP). While defeating the resolution, Shell did announce that it agreed in principle to independent auditing, but that a shareholder resolution was not the appropriate mechanism to initiate such an action.
The Burma operations of California-based UNOCAL and French-based TOTAL continued to draw fierce criticism and became the focus of an important lawsuit in U.S. federal court. The suit was brought on behalf of a number of unidentified citizens of Burma and a California resident. The complaint argues that the State Law and Order Restoration Council (SLORC) regime in Burma has been responsible for human rights violations in the course of constructing a pipeline to carry natural gas from the offshore Yadana gas fields to Bangkok. The plaintiffs contend that the companies were liable because residents in the area of the project were "subjected to the death of family members, assault, rape or other torture, and other human rights violations in furtherance of the Yadana gas pipeline project in which defendants are joint venturers."
On March 25, Judge Richard Paez declined to dismiss the lawsuit against UNOCAL and TOTAL and ruled that they could be sued in U.S. federal court, under the Alien Tort Claims Act, for abuses committed by SLORC. Compounding the problems for UNOCAL and other United States-based multinationals invested in Burma was the April 22 executive order by which President Clinton banned new investment in Burma on grounds of SLORC's dismal human rights record. While the order did not affect existing investments in Burma, such as UNOCAL's, it sent a message that, at least in the case of Burma, human rights considerations would be a factor. Roger Beach, the CEO of UNOCAL, defiantly announced that the only way UNOCAL would leave Burma was "if we are forced to by the enactment of law."
Meanwhile, UNOCAL established a second headquarters in Malaysia on April 21, to manage its non-U.S. operations. Oil industry analysts believed this was the beginning of an attempt by the company to withdraw from the United States and to minimize any liability brought by the lawsuit or because of sanctions against U.S. corporations doing business in Burma.
Advocacy and grassroots campaigning spread to more countries in 1997, and it was clear that pressure mounted by grassroots organizations, the press, and the public at large was playing an important role in holding corporations accountable for complicity in governmental human rights and labor rights violations. In the United States, several campaigns centered around sweatshop-like practices of U.S. apparel manufacturers. The National Labor Committee, a nongovernmental lobbying group associated with the U.S. labor movement, launched efforts against the Ralph Lauren apparel company for its sourcing of products from Burma and against Walt Disney Corporation for sourcing from sweatshops in Haiti and Thailand. In July, Ralph Lauren announced that it was ceasing business in Burma "until conditions have changed." Warnaco, a company that had left the Apparel Industry Partnership, made a similar announcement. The U.S.-based organizations Press for Change and Global Exchange continued their campaigns against Nike, and the Union of Needle Trades, Industrial and Textile Employees (UNITE) continued to campaign against the apparel manufacturer GUESS Incorporated because of its labor practices in the United States and abroad. In an effort to hold public actions to maintain pressure on companies, in early October a coalition of labor unions, religious groups and solidarity organizations sponsored a National Day of Conscience in various U.S. cities to focus on child labor and "to affirm the dignity of life and human rights."
Throughout the member states of the European Union, a coalition, based on the Dutch Clean Clothes Campaign, was joined by Labor Behind the Label in the United Kingdom, Les Magasins du Monde in Belgium, Artisans du Monde in France, and the Dutch industry organization, FENECON, in a concerted effort to highlight the problems of manufacturing abroad and to implement an independent monitoring system for European apparel manufacturers.
In Australia, a coalition comprising trade unions and community-based activist groups began the Fairwear campaign-an effort to implement a sourcing code of conduct among Australian retailers and manufacturers. As a result of campaigning by nongovernmental organizations in Germany, members of the Green Party introduced a bill into parliament calling for codes for conduct for German companies operating in China.
Campaigns were not limited to countries in the North. In India the South Asian Coalition on Child Servitude (SACCS) sponsored the Fair Play campaign in June in an attempt to eliminate child labor from the Indian sporting goods industry. In Hong Kong, the Asia Monitor Resource Center (AMRC) continued its campaigns to highlight abuses faced by workers in the Chinese footwear and toy industries. A coalition of groups from Honduras, Thailand, Ecuador, Indonesia, India, and Bangladesh continued their campaign to publicize and curtail activities of the worldwide shrimp industry that have created human rights and environmental problems.
In a surprising success, a four-year boycott of Holiday Inn and its parent company, Bass Private Limited, on the grounds that it was the only multinational hotel chain with operations in Tibet, resulted in Holiday Inn announcing that it would not continue its partnership with the Chinese government and would not extend its contract past the expiration date of October 1997. The campaign was organized by the Free Tibet Campaign, based in the U.K., and included activist groups in the United Kingdom and United States.
Relevant Human Rights Watch reports:
Exposing the Source: U.S. Companies and the Production of Antipersonnel Mines, 4/97
Corporations and Human Rights: Freedom of Association in a Maquila in Guatemala,
DRUGS AND HUMAN RIGHTS
Efforts to curtail the trafficking, sale and consumption of illegal drugs continued to acerbate prison overcrowding, stress criminal justice systems, and weaken legal protection for civil liberties. In countries with vastly different political, social and economic systems and traditions, anti-narcotics strategies included tactics inconsistent with human rights principles. Drug offenders faced the death penalty in a number of countries, including China, Indonesia, Iran, Iraq, Malaysia, Pakistan, Turkey and Saudi Arabia. Statistics were not available for the number of people executed for drug offenses in 1997. In August, Amnesty International reported that 534 people in China were executed for drug trafficking in 1996; available information suggested the execution rate did not change in 1997. The quantities of drugs that trigger death sentences can be small: one man was executed in China in September for peddling ten ounces of heroin. In Kuala Lumpur, two Indonesians were sentenced to death for trafficking three kilograms of marijuana. In Vietnam, where selling as little as one hundred grams of drugs can be punished with death, at least eighteen people were executed for drug offenses in 1997, including a twenty-eight-year-old sentenced to die by firing squad for trafficking 5.7 kilograms (12.5 pounds) of heroin.
Prisons in countless countries face burgeoning populations because of drug offenses. For example, in Ecuador and Venezuela, thousands accused of drug possession or trafficking languish in prolonged pre-trial detention, some of them for longer than the maximum sentence that would be applicable if convicted. According to the Organization of American States, in 1996 over sixty-three thousand people were detained in the Americas (excluding the United States and Canada) for drug offenses. Thailand's prisons are crowded with individuals serving life sentences for relatively minor roles in drug trafficking enterprises, including working as drug couriers.
Evidence of growing recognition of the problems caused by prevailing anti-drug law enforcement strategies was the concern evidenced in the most recent annual report of the International Narcotics Control Board:
[W]hile many members in the higher echelons of drug trafficking groups go unpunished, the growing number of small-time pushers and drug users being arrested is putting pressure on criminal justice systems by increasing prison populations and prison expenditure, as well as the cost of running law enforcement operations and the judicial system. This may lead to a feeling of injustice in the community and undermine public confidence in the criminal justice system.
The International Narcotics Control Board recommended that states consider giving priority to targeting large-scale drug traffickers and the organizers of drug trafficking operations, and pointed out, "Both the absolute number of drug-related convictions and the often increasing length of prison sentences can have adverse effects upon prison conditions."
The adverse human rights effects of excessively aggressive criminal drug law enforcement were perhaps most starkly displayed in the United States, the world's capital of drug consumption. The arrest and conviction of U.S. drug offenders continued to swell the prison population. According to official statistics released in 1997, 22 percent of state prisoners and fully 60 percent of federal prisoners in the United States were incarcerated for drug offenses. The vast majority were low-level offenders, including persons convicted of drug possession. FBI statistics indicated that approximately one-half million people were arrested in 1996 for marijuana possession. The implementation of anti-drug laws continued to affect black Americans disproportionately: for example, blacks account for 38 percent of arrests for drug offenses, 59 percent of persons convicted of drug felonies in state courts. Such statistics supported the widespread perception that the "war on drugs" in the United States has unfairly targeted blacks and has been as devastating to black families and communities as drugs themselves.
Prison sentences for U.S. drug offenders are uniquely severe among constitutional democracies. For example, a person convicted of a single sale of two ounces of cocaine in the state of New York faces the same mandatory prison term as a murderer-fifteen years to life. In Michigan, a person with a spotless prior record convicted of a minor role in a drug transaction involving one-and-one-half pounds of cocaine must be sentenced to life without parole. Under U.S. federal law, simple possession of a mere five grams of cocaine base requires a sentence of five years in prison. In 1997 in Oklahoma, a jury imposed a sentence of ninety-three years on a man convicted of growing marijuana plants for sale in the basement of his house. More than three dozen U.S. congressmen supported legislation in 1997 that would have imposed the death penalty for anyone who imported two ounces of marijuana into the U.S. Draconian sentences also arise under legislation that imposes severe mandatory sentences on repeat offenders. For example, in California, conviction of a third felony is punished with mandatory life imprisonment. At least thirteen people in California were serving life sentences for conviction of a third felony consisting of the possession of marijuana for sale.
Prison sentences for drug offenses in many cases are so disproportionate that they constitute cruel punishment in violation of fundamental rights. Human Rights Watch released a report in March which criticized the human rights impact of drug sentences in New York for low-level or marginal drug offenders. While the report did not challenge the state's decision to use criminal sanctions in its effort to curtail drug trafficking and drug abuse, we insisted that such sanctions must be proportional to the gravity of the offense. All too often, however, drug sentences constituted arbitrarily severe punishment, shaped by public concerns and political pressures that have run rough-shod over human rights considerations.
Partisan politics doomed reform of New York's drug laws in the 1997 legislative session. In other states, efforts at drug law reform had mixed results. For example, the Michigan legislature developed proposals for reforms that would have ameliorated some of the harshest aspects of its drug sentencing laws; at this writing, they are pending. Despite the hesitations of politicians, public debate about drug policies and theirimpact on individual well-being continued to grow. In late 1996, two states, Arizona and California, passed public initiatives endorsing the legal use of marijuana for medical purposes and numerous medical organizations, journals and groups endorsed both access to marijuana for medical purposes and access to clean needles through syringe exchange programs to halt the spread of AIDS. During 1997, however, the federal government strongly opposed efforts to remove criminal sanctions for the medical use of marijuana and continued to refuse to fund needle exchange programs.
Federal drugs laws in the United States require judges to impose dramatically higher penalties for crack than powder cocaine offenses, even though the two drugs are chemically identical. Although the cocaine sentencing laws are racially neutral on their face, their application has created stark racial disparities as far more blacks are convicted of crack offenses than whites and consequently receive the much stiffer penalties. The sentencing laws have been widely criticized as a symbol of the racial injustice many Americans feel characterizes the "war on drugs" in the United States. In July 1997, President Clinton proposed narrowing, although not entirely eliminating, the differential between crack and powder cocaine sentences.
The U.S. Supreme Court has almost uniformly rebuffed constitutional challenges to law enforcement tactics adopted to pursue drug trafficking, thus reducing protections of individual privacy against state intrusion in the form of searches and seizures. In an important departure from this tradition, the Supreme Court in April struck down as unconstitutional a Georgia law that required candidates for public office to submit to a drug test. The court held that the law was not tailored to serve purposes other than that of demonstrating a commitment against drugs, and that such a symbolic purpose was not important enough to override individual privacy interests. The decision had a direct impact on a small group of people, but it may signal a new approach by the Supreme Court to anti-drug measures, one that would weigh individual privacy or liberty interests more heavily against state efforts to "send a message about drugs." In another important decision also announced in April, the court ruled that the constitutional rule requiring police to knock and announce their presence before executing a search warrant does not contain a blanket exception for drug searches.
U.S. supported counternarcotics programs overseas, particularly in Latin America, continued to raise human rights concerns. Bolivia, where Human Rights Watch continued research on anti-drug policies and violence, was a case in point. In 1996, the U.S. and Bolivian government signed agreements for U.S. counter narcotics assistance that included strong human rights provisions. Those provisions appeared to go largely unimplemented in 1997. For example, there was no sign of improved riot and crowd control measures by the police; arbitrary search and seizures continued; impunity for police abuse remained rampant. The government's human rights office in the Chapare region-the center of Bolivia's coca cultivation-continued to be underequipped, understaffed and ignored by the police.
Renewed violence between Chapare coca growers and anti-drug police included deaths from the police's apparently indiscriminate use of lethal force. There were also reports of torture and ill treatment in custody. The worst violence occurred on April 17, 1997 when the Mobile Rural Patrol Unit (Unidad Móvil de Patrullaje Rural,UMOPAR) and other police forces killed six civilians during clashes between local residents and police eradicating new coca seedbeds in Eterezama, in the Chapare. Violence erupted after fifty-three-year-old Alberta Orellana García was shot by police. According to her children, she was unarmed, kneeling and imploring the police not to destroy her crop. Angered by her death, residents armed mainly with sticks and stones went on a rampage, setting fire to a building belonging to the government crop substitution office. Police launched tear gas canisters from helicopters, and reportedly fired indiscriminately at protesters' feet.
According to eyewitnesses, an UMOPAR agent fired six times at Elio Escobar, aged sixteen, while he was entering his house and not presenting a threat. Four bullets struck him in the legs, one in the neck, and another perforated his hand. After he was hit and on the ground, an UMOPAR agent struck him in the head with the butt of his rifle and beat his younger brother, who tried to help him. The police later severely beat people detained after the incident, including unionists and local government officials.
There were also disturbing reports of Chapare peasants being abused after their detention. Seventeen-year-old Cyprian Santos was beaten by UMOPAR agents who, because of his muddy feet, suspected him of working in pits where coca leaves are trampled. Nine peasants detained after the death of a policeman in early July 1997 were beaten and forced to pose for photographs holding dynamite, Mauser rifles and ammunition. One of them, sixteen-year-old Abelardo Iraíso Zelada, told the press that UMOPAR agents beat him all day: "I don't know how many times I passed out, they almost killed me. One of the moments I came to I found bullets and dynamite in my pockets." Seven of the detainees, including Iraíso, were released without charge for lack of evidence.
As the government stepped up its coca eradication efforts in the Chapare, local prisons became stretched to bursting point, and detainees were being held in deplorable, overcrowded conditions in police lockups. Women detainees in the Cochabamba detention center of the Special Force for the Battle Against Drug-trafficking (FELCN) went on hunger strike to protest conditions. They were forced to sleep sitting up, and one alleged that she had to deliver her child chained to a hospital bed. She told reporters the baby nearly died because police beat her when she was pregnant to force her to sign a statement.
The Clinton administation continued to encourage military involvement in antinarcotics efforts in Latin America and continued to press for significant counternarcotics assistance to military and police forces. In August, for example, the Office of National Drug Control Policy stated that the U.S. would provide more than $100 million worth of equipment and training to the Colombian armed forces and police to assist drug eradication and interdiction efforts.
Following the severe criticism of Colombia's record in the 1996 U.S. State Department Report on Human Rights, the Clinton administration sought to distance itself from the dirty-war tactics of the Colombian military by extending the human rights restrictions containedin foreign assistance appropriations legislation for Fiscal Year 1997 to all counternarcotics assistance. Despite strong pressure from members of Congress who insisted that fighting the war on drugs take precedence over human rights, the Clinton administration withheld military assistance until the Colombian military high command signed a formal agreement containing human rights conditionality and end-use monitoring provisions. U.S. counternarcotics assistance in Colombia was limited to military units that do not have records of unsanctioned human rights violations. Difficulties promptly surfaced with trying to target aid to clean units within a military that, as an institution, has a notorious human rights record. In October, for example, in an area of the country the U.S. had designated as being free of military abuses, the Colombian security forces reportedly supported a paramilitary massacre that left six civilians dead. The commander of the Colombian armed forces in the same month stated that U.S. aid could be used against rebels whether or not they are involved in cocaine operations. Similar problems regarding the use of U.S. anti-drug aid have arisen in other countries.
Relevant Human Rights Watch report:
Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, 3/97
DISPLACED PERSONS AND ASYLUM SEEKERS
Refugees, displaced persons and asylum seekers are among the most vulnerable victims of human rights abuse. Forced to leave their homes, possessions, friends, and, often, family, traumatized by killings or other crimes that caused them to flee, they find themselves adrift, sometimes alone, dependent on strangers in a foreign region or land. At special risk are women and children who are often subjected to violence and sexual abuse in their place of refuge.
Unfortunately, as ethnic and communal violence continue to create new waves of refugees and displaced persons throughout the world, many countries that have traditionally welcomed refugees are now turning them away or passing legislation restricting their ability to apply for asylum. Moreover, the protection of refugees and asylum seekers has significantly deteriorated over the past few decades. Refugees and displaced persons are subjected to abuse in their places of exile and are in danger of being returned to countries or regions from which they fled, thereby endangering their safety.
Increased restrictions on the right to asylum were imposed in European Union member states in 1997, reflecting, among other things, a general disinclination to take in refugees from the Bosnian crisis. Asylum seekers were given only limited access to asylum procedures once their asylum claims were deemed either "manifestly unfounded" or the responsibility of a "safe third country," defined as any country where the asylum seeker would be admitted and protected against persecution or refoulement. These policies gave immigration officials considerable discretion to deny asylum after little or no substantive review of the asylum claim. The right to appeal was rendered meaningless because the asylum seeker had no right to remain in the country while the appeal was pending. "Safe third country" rules subjected asylum seekers to the risk of chain of deportations from one country to another, and expanded in 1997 as E.U. member states negotiated an ever-widening number of readmission agreements with their eastern and southern neighbors.
Despite the Dayton peace agreement, which brought a fragile peace to Bosnia, local authorities obstructed the return of displaced persons to their prewar homes in 1997, and ethnically motivated expulsions and evictions continued. Of the more than two million Bosnians who were displaced by the war, only some 250,000 had returned to the country by November, and of these very few to their pre-war homes. Since the Dayton accord was signed in 1995, another 80,000 individuals were displaced due to transfers of territory. In Croatia in 1997, the government continued to hamper attempts to return by some of the 200,000 to 350,000 non-Croat refugees who were forced into exile by the war. In May, some one hundred Serbian refugees were expelled after an attempt to return to homes near Sisak. The Federal Republic of Yugoslavia (FRY) maintained an inconsistent and discriminatory policy toward the estimated 600,000 refugees from the former Yugoslavia living in the FRY. Large numbers were denied refugee status, thereby limiting the amount of humanitarian aid they could receive and threatening them with possible repatriation. Discrimination against minorities encouraged emigration from the country, and the influx of Serbian refugees from Bosnia and Croatia to Vojvodina in recent years led to state-sponsored seizures of minorities' homes for Serbian refugees and coerced land swaps.
In September 1997 it was revealed that the prime minister of Slovakia, in August meetings with the Hungarian prime minister, had proposed a "population exchange" of ethnic Hungarians living in Slovakia for ethnic Slovaks living in Hungary.
In the United States, the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 hindered the ability of asylum seekers to exercise their right to seek asylum by allowing immigration inspectors at the port of entry to make a determination about the legitimacy of their cases without allowing the applicant to have legal counsel or permitting independent monitoring of this process. Those allowed to make a case had a very limited time in which to do so. The bill provided for the detention of individuals arriving without proper documentation, many of whom were held in substandard conditions. Hundreds of children were detained, including many with no responsible adult present, who were not informed of their rights and were often detained in prison-like conditions.
of Independent States
In Russia the situation of asylum seekers from countries of the former Soviet Union remained grave in 1997: they were detained by police, threatened with deportation, and at least thirty were deported without the opportunity to apply for asylum. Amendments to the 1993 Law on Refugees brought some improvements but did not change the refugee determination procedure. Most refugees arriving at Moscow's international airport were sent back to their country of origin without being given a chance to apply for asylum.
In Tajikistan large numbers of refugees and all but a few internally displaced persons were able to return safely to their homes. But hostilities in northern Afghanistan, which led the authorities in Uzbekistan to close the Afghan-Uzbek border, limited repatriation through Uzbekistan for 7,000 refugees in Sakhi camp in northern Afghanistan. Following intense international pressure, Uzbekistan in late October agreed to open its border with Afghanistan to allow for the passage of the Sakhi refugees through Termez to Tajikistan.
In late 1996, soldiers of the rebel Alliance of Democratic Forces for the Liberation of the Congo (ADFL) and their Rwandan allies attacked camps in the Democratic Republic of Congo (DRC) that sheltered more than one million Rwandans. Most of the Rwandans were refugees, but others were soldiers, militia, or civilian authorities responsible for the 1994 genocide in Rwanda. Some 600,000 Rwandans returned home, many willingly but some against their will. Other refugees fled west, some of them forced to accompany soldiers and militia, and were chased down by the ADFL and its allies. Armed elements among the refugees sometimes used the noncombatants as human shields or even killed them directly if they refused to follow orders. In mid-1997, more than 200,000 persons were still missing, many of them dead from attacks or deprivation of food, water, and medicine. The disaster resulted in part from the refusal of the international community to heed pleas from the UNHCR and others to separate out the armed elements, who were making incursions into Rwanda, from the real refugees. Soon after the massive return from the DRC, more than 470,000 other refugees returned to Rwanda from Tanzania, many of them forcibly repatriated by Tanzanian authorities. Rwandan authorities generally maintained calm, but in subsequent months more than 200 returnees were killed and hundreds more were reported missing from their communities. Up to 15,000 Rwandan refugees fled from the DRC into Angola, where humanitarian organizations had difficulty reaching them; they were reportedly mistreated, and some were conscripted into UNITA forces.
In Burundi, nearly one tenth of the population had fled their homes by mid-1997 in a continuing civil war. Of the 570,000 living in camps, some 223,000 were Hutu forced into the camps by soldiers of the Tutsi-dominated army who used murder, rape, pillage, and destruction of homes to create zones of scorched earth in regions contested by the primarily Hutu rebel movements. Others were Tutsi who had gathered spontaneously in camps to seek protection from rebel attacks. Many died from diseases associated with overcrowded conditions in the camps, particularly in the Hutu camps where relief services were limited by the government.
Close to one million Liberians remained displaced within and outside of the country in 1997, mainly women and children of rural background. In July, elections were held that swept former faction leader Charles Taylor and his party into power, but one of the preconditions for the elections- the return of refugees-was not achieved. In 1997 in South Africa, there allegations of police brutality against foreigners, including the death of at least one asylum seeker shortly after he was released from police custody. A government-appointed committee published a Green Paper on migration policy, proposing a more rights-based approach.
The government of Thailand failed to protect some 117,000 refugees from Burma in camps along the Thai-Burmese border in 1997. Refugee camps in Thailand were attacked from across the border on several occasions, and refugees were killed and injured. In a reversal of its previous policy, the Thai army and Border Patrol Police either denied entry to or pushed back some 8,500 refugees, violating international strictures against refoulement. In several instances, the United Nations High Commissioner for Refugees (UNHCR) was criticized for lending legitimacy to the process by observing some apparently involuntary returns. Refugees from Cambodia faced similar problems in Thailand, where conditions in the refugee camps and immigration detention centers remained poor. Thailand also blocked the establishment of new camps for refugees.
In Burma the number of internally displaced was estimated to be more than 300,000. Forced relocations were accompanied by rapes and killings, and scores are believed to have died from malnutrition and other diseases related to poor conditions at the government-controlled sites.
Before the transfer of sovereignty to Hong Kong, Chinese dissidents who had fled there as political refugees were successfully resettled in third countries. Many Vietnamese asylum seekers, however, were pushed out by the Hong Kong government and the UNHCR, which had made conditions in the camps intolerable in response to Chinese pressure to send all the boat people home before the July 1 transfer of sovereignty. More than 2,000 Vietnamese whom the Vietnamese government refused to take back on the grounds that they were not Vietnamese citizens remained in Hong Kong.
In Colombia, between 1985 and 1996, some 920,000 civilians had been forcibly displaced by political violence. The number of displaced continued to grow in 1997 and included an unprecedented exodus of 13,000 peasants from northwest Colombia, most of whom languished in crowded camps without adequate food, health care or physical protection. In April, some 300 Colombians were forcibly repatriated from Panama, only to be evacuated from their place of return in September after one returnee was killed and paramilitaries threatened to kill a list of others. The government responded to the national problem by appointing a presidential counselor on displacement and passing legislation dealing with assistance, prevention, and protection issues, but the law and national policy were criticized for lack of funding and for not guaranteeing the safety of returnees. In June, the UNHCR opened an office at the invitation of the government, but at the time of this writing has not undertaken any formal activities.
The Reponse of the
The protection of refugees ultimately rests with the individual nations involved and with the international community as a whole. Their safety is guaranteed by international human rights and humanitarian law, and by the 1951 Convention on the Status of Refugees and the 1967 Protocol. UNHCR is the preeminent agency for the protection of refugees and has the expertise and experience to ensure refugees' rights. However, many states are hampering the activities of the UNHCR by blocking its access to refugee camps and returnees and otherwise obstructing its work.
United Nations High
Commissioner for Refugees
UNHCR, in turn, has shifted its focus from exile-oriented strategies to an emphasis on voluntary repatriation and on the prevention of refugee flows. This has resulted in an erosion of protection standards. Human Rights Watch has documented cases in recent years in which the UNHCR has resorted to the reduction of rations in order to "encourage" refugees to repatriate, or failed to provide a neutral and accurate account of the situation in the region from which the refugees have fled, in an effort to encourage them to repatriate "voluntarily." UNHCR has also assisted in the repatriation of refugees in situations where it did not have adequate control to determine whether the decision to return was truly voluntary and whether their safety would be ensured. UNHCR policies to protect and assist victims of sexual violence were still not being adequately integrated into UNHCR programs and services in the field. Receiving governments should cooperate with UNHCR to institute protection programs to prevent sexual assault of women, which is common during some stage of their flight of refuge, and in some situations rampant.
Human Rights Watch has urged the UNHCR to play a stronger and more active role, including the use of various U.N. channels, in situations where governments are abusing refugees and hindering humanitarian and protection work. We also have urged the UNHCR to work more closely with nongovernmental groups that are experienced in refugee needs and human rights. Governments should cooperate with UNHCR in providing access to refugees and displaced persons and in ensuring their safety both in exile and when they return home. We have called on the international community to use its leverage to encourage governments to cooperate with UNHCR and to cease practices that are abusive to refugees.
Some of our concerns about the UNHCR role were as follows:
* In the case of Rohingya refugees crossing from Burma to Bangladesh in 1991 and 1992 and again in 1996, UNHCR, starting in 1994, encouraged their repatriation, despite the fact that the conditions in Burma that caused them to flee had not been ameliorated. UNHCR failed to supply the refugees with adequate information about conditions that they might face in Burma upon their return. In addition it circulated information indicating that refugees might be arrested in Bangladesh. While such information may have constituted an accurate reflection of the Bangladeshi government's treatment of the new arrivals, UNHCR would have better directed its efforts to seeking protection for newly arrived Rohingya who sought to exercise their fundamental right to seek asylum. In 1997 Rohingya Muslims returning to Burma from Bangladesh reported continued persecution by the Burmese military because of their race and religion; some 20,000 fled once again to Bangladesh after returning home.
* In Tajikistan, where UNHCR's presence had significantly improved the situation for returning refugees, the agency considerably decreased its staff in , despite continuing tensions in the civil war, and also relinquished certain monitoring functions to the Organization for Security and Cooperation in Europe (OSCE).
* With regard to refugees from Bosnia, the UNHCR used the concept of "temporary protected" status, which allowed large numbers of people to get out of harm's way in a short period of time. However, the UNHCR stressed the "return-oriented" nature of the protection, with emphasis on the safety of the return, rather than its voluntary nature, in order to convince governments to receive the asylum seekers. Human Rights Watch has been concerned that "temporary protected" persons may not be afforded a full opportunity to raise claims for traditional refugee status under the 1951 refugee convention.
* UNHCR has traditionally neglected the issue of sexual violence against women in refuge, as in the widespread rape in 1993 of Somali refugee women in camps in Kenya close to the Somali border. Following publicity on this issue, extensive and quite successful efforts weremade by the UNHCR and the Kenyan government to improve the situation. Significant steps were taken by the agency, including guidelines for the protection of refugee women in general, but in 1997 implementation remained a problem.
* While UNHCR has issued guidelines on the protection of children in refuge, they have not been adequately implemented. In Ethiopia in 1996, UNHCR failed to protect unaccompanied Sudanese boys from forced military recruitment. Many of the boys, sent to fight on the Sudan-Ethiopia border, reportedly died in battle.
United Nations Development Program (UNDP)
UNDP, the United Nations' development arm, is increasingly administering reintegration programs for the internally displaced. Although human rights functions have not been an established feature of its traditional work, UNDP has formally acknowledged that its mandate and its programs for the internally displaced must incorporate human rights and other issues. UNDP made human rights a central component of its successful reintegration program in Central America between 1989 and 1995. However, the lessons of the Central American program were not translated into UNDP's Kenya program, carried out between 1993 and 1995 to reintegrate an estimated 300,000 displaced persons. In 1997 Human Rights Watch undertook a detailed evaluation of UNDP's Kenya program and made a series of recommendations that we believe, if implemented, would lead to greater success in the implementation of all future UNDP programs for the internally displaced.
Relevant Human Rights Watch reports:
Emerging from the Destruction: Human Rights Challenges Facing the New Liberian Government, 11/97
What Kabila is Hiding: Civilian Killings and Impunity in Congo, 10/97
France-Toward a Just and Humane Asylum Policy, 10/97
Rohingya Refugees in Bangladesh: The Search for a Lasting Solution, 8/97
No Safety in Burma, No Sanctuary in Thailand, 7/97
Failing the Internally Displaced: The UNDP Displaced Persons Program in Kenya, 6/97
Uncertain Refuge: International Failures to Protect Refugees, 4/97
Zaire-Transition, War and Human Rights,
Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service, 4/97
Zaire- "Attacked by All Sides": Civilians and the War in Eastern Zaire, 3/97
Hong Kong: Abuses against Vietnamese Asylum Seekers, 3/97
Educators, researchers and students are frequent targets of state-sponsored violence and repression. In the most notorious cases, such as China during the Cultural Revolution and Kampuchea under Pol Pot, governments bent on imposing a monolithic state ideology have disproportionately targeted teachers and educated individuals for imprisonment, torture and murder. More commonly, governments use intimidation, physical abuse and imprisonment to silence critical scholars and students, deny access to educational institutions to girls, women and members of disfavored minority groups, and censor teaching, research and publication on important historical and social subjects.
The preamble to the Universal Declaration of Human Rights declares that "every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for [human rights]." To this end, the declaration specifically provides for the right to education, mandates that access to educational institutions and to the cultural and scientific resources of society shall be available to all, and provides that "education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms." Human Rights Watch believes that educational institutions cannot fulfill their mission of strengthening respect for human rights when the basic rights of educators and students themselves are not respected.
In 1997, Human Rights Watch gave particular attention to government attacks on the civil and political rights of university faculty and students, and to the devastating impact such attacks often have on the academic community and on freedom of inquiry, expression and association in society at large. The evidence was not encouraging. As described below, although governments increasingly recognize the importance of higher education in promoting technological and economic progress, many sought to assert rigid control over the speech and activities of members of the university community and greeted perceived noncompliance with force.
Pressure and Censorship
Prior to 1989, communist governments from the Soviet Union to Czechoslovakia notoriously made affirmation of party loyalty an explicit precondition of scholarship and routinely punished perceived deviations from state ideology with imprisonment and exile. In the 1950s in the United States, requirements in states such as California and New York that faculty take oaths of national loyalty and Congressional investigations of alleged communist "sympathizers" on campus cast a similar pall of orthodoxy over the university.
Ideological litmus tests did not end with the Cold War. In 1997, Indonesia and China were prominent examples of their continued currency. In Indonesia, all applicants for teaching positions were required to pass a background screening to determine whether or not they had what the government called a "clean environment." Those who previously had been imprisoned for political crimes, including hundreds of thousands of people imprisoned without charge following an attempted coup over thirty years ago, were forbidden from teaching. All relatives of such people, including siblings, children, grandchildren, aunts, uncles and in-laws, were considered suspect and were allowed to teach only if the government was satisfied that their records were clear of any evidence of opposition to the government or Pancasila, the official state ideology. In addition, all new students and teachers were required to undergo a government-sponsored training program in Pancasila as a condition of entry to the university, and all organizations in society, including student groups and faculty associations, were required to expressly adopt Pancasila as their "sole basis."
Although Pancasila itself literally means "five principles," and consists of vague invocations of monotheism, humanitarianism, national unity, democracy and social justice, the Indonesian government in 1997 continued to use alleged deviations from Pancasila to justify wide-ranging censorship and attacks on critical faculty and student activists. As one researcher told Human Rights Watch, "Critical thinking alone makes you suspect."
During the run-up to elections held in May, numerous student rallies calling for political reforms or advocating a boycott of the elections were dispersed by the military and police, and students routinely were held overnight for questioning. In April, the government sentenced a group of twelve students activists to jail terms ranging from eighteen months to thirteen years in prison. The students initially were accused of having masterminded political riots in Jakarta in July 1996. When the government could come up with no evidence to substantiate such charges, they instead were charged with and convicted of subversion. The first ground for conviction specified in the Indonesian subversion law, punishable with the death penalty, is "distorting, stirring up trouble or deviating from Pancasila." At trial, the prosecution repeatedly accused the activists of endorsing ideas contrary to Pancasila (see Indonesia section).
In 1997, four prominent professors, Sri Bintang Pamungkas, Mulyana W. Kusumah, Arief Budiman and George Aditjondro, were among the targets of an ideological smear campaign initiated by a high-ranking military officer. In interviews with the Jakarta press in 1995, Lieutenant General Soeyono, who at the time was chief of staff of the Indonesian armed forces, named the academics as among fifteen individuals who use "communist methods" to spread their ideas, echoing accusations made by President Soeharto that certain "formless organizations" were using democracy and human rights as a ruse to propagate ideas contrary to Pancasila. After riots in Jakarta in July 1996, Lieutenant General Soeyono asserted that the unrest had proven his point, and his list of ideologically suspect individuals gained renewed currency, appearing in press accounts into the early months of 1997. Two of the professors previously had been brought up on charges of insulting the government. Dr. Aditjondro, formerly a professor at Satyawacana Christian University in Java, was charged based on a political joke he had told while serving as a discussant at a university symposium in 1994. He now lives and teaches in exile at Newcastle University in Australia, and faces arrest should he return to Indonesia. Dr. Pamungkas, an economist at the University of Indonesia, an opposition member of Indonesia's parliament and an outspoken critic of President Soeharto, was sentenced to thirty-four months in prison in 1996 for critical remarks about the president made during a presentation at the Berlin Technological University in Germany. The conviction of Dr. Pamungkas demonstrated the government's willingness to apply its repressive laws even to academic speech by Indonesians overseas. Dr. Pamungkas subsequently lost his seat in parliament, and in May 1997, he learned that he had been dismissed from the teaching position at the University of Indonesia he had held for twenty-seven years.
In its attacks on alleged ideological deviation, the Indonesian government also targeted books and academic publications, depriving social science and humanities faculty of important resource materials for classroom study and impoverishing intellectual life throughout Indonesian society. According to one study, over 2,000 books have been banned by the Soeharto government, including a wide range of prominent works by both foreign and domestic scholars, dissertations prepared by Indonesian scholars abroad, and works of fiction regarded as among Indonesia's finest. The Attorney General's office is given wide discretion to ban books, and has been especially aggressive in targeting works of history that challenge the accounts given in books sponsored by the government or army. Titles added to the list in recent years include works by Japanese, American, Australian and Dutch scholars on Indonesia's independence struggle and on the development of a capitalist economy in the Southeast Asia region. Other works that have been banned recently include a political memoir by Oei Tjoe Tat, Indonesia's first minister of state of Chinese ancestry and assistant to former President Sukarno, and a collection of essays aimed at stimulating further academic inquiry into the events in Indonesia in 1965-66 that led to the assumption of power by President Soeharto.
In China, all universities have been under close ideological surveillance since the student uprising at Tienanmen Square was brutally suppressed by government authorities in 1989. In 1997, the government introduced a host of new regulations and restrictions expressly aimed at strengthening ideological training and Communist Party control over universities throughout China.
In January, the government announced new censorship regulations, effective February 1, banning all publications that questioned the legitimacy of communist rule or failed to go along with "socialist morality." In April, the government announced new government restrictions on public opinion research, household surveys and studies of demographics, important tools for understanding citizens' attitudes toward economic reform and other social and political issues. A memo from the Propaganda Ministry, the Office of the Secretary of the Politburo, and the Office of the State Council, also made public in April, announced that all social science projects involving foreign funding henceforth would require approval from the Public Security Bureau and National Security and Foreign ministries. The new restrictions coincided with a campaign at the Chinese Academy of Social Sciences against "theories and opinions that are against Marxism, the leadership of the Party and the people's democratic dictatorship." In June, the well-publicized Sixth National Conference on Party Building in Institutions of Higher Education called on all members of the academic community to firmly pursue the party's line, principles and policies, echoing a government decree issued in October 1996 ordering university administrators to consult campus-based Communist Party representatives on all major decisions.
In recent years, numerous Chinese academics and students have been imprisoned for alleged "counterrevolutionary" crimes. Although the China National People's Congress in 1997 removed the counterrevolutionary acts provision from the criminal code and replaced it with "endangering state security," a number of leading proponents of democratic reforms, including former student leader Wang Dan and marine biology student Chen Lantao, remained behind bars. In December 1996, U.S.-based Tibetan ethnomusicologist Ngawang Choephel and former Beijing University philosophy student Li Hai, accused of political crimes, were sentenced to jail terms of eighteen and nine years, respectively (see China section).
Although Human Rights Watch is unaware of evidence directly linking the announcements of renewed restrictions on scholarship to the growing contacts between scholars at mainland and Hong Kong universities, the timing of the announcements made clear that the resumption of Chinese sovereignty in Hong Kong would be accompanied by tightening rather than relaxation of ideological controls on mainland campuses. In Hong Kong itself, new threats to academic freedom emerged both before and after the handover. Early in the year, government-sponsored revisions to school textbooks to reflect Hong Kong's new status went beyond deleting references to Hong Kong as a colony and included censorship of accounts of the Tienanmen massacre and its aftermath. In August, Hong Kong textbook publishers revised modern history texts for primary and secondary schools, removing references to the Cultural Revolution, the "anti-rightist campaign," 1976 dissident protests, and the Tibet conflict, and in some cases reducing texts to one-quarter their pre-handover length.
A number of prominent Hong Kong faculty members also were denied reappointment, and local and Hong Kong-based foreign scholars reported growing ideological tensions on campus. Among the Hong Kong academics ousted from their positions was Prof. Nihal Jayawickarama, an internationally respected legal scholar at Hong Kong University who also served as chairman of the Hong Kong section of the International Commission of Jurists. Dr. Jayawickarama had criticized China's human rights policies and questioned the legal status of the provisional legislature. Although a university spokesperson defended the decision saying that Dr. Jayawickarama reached the retirement age of sixty in 1996, university procedures provided for an additional five-year contract for valued faculty members, and Dr. Jayawickarama had been expressly invited to apply for an extension of his appointment by officers of the university. As Dr. Jayawickarama explained in an interview with the Hong Kong press, "I think the university feels it might be better off without me because I'm not likely to become politically correct after July 1." In a separate incident in August, Hong Kong provisional legislator David Chu Yu-lin sent letters to two universities in an effort to have academic critics fired. The targeted individuals were Prof. Richard Baum, a visiting scholar at Chinese University who had criticized Mr. Chu's proposals for a program of patriotic education, and Tim Hamlett, a lecturer at Baptist University's Department of Journalism, who had disputed Mr. Chu's account of the Hong Kong public's enthusiastic embrace of the handover. In a positive development, administrators at both Chinese University and Baptist University defended the scholars in interviews with the Hong Kong press. Such public defense of academic freedom was particularly important given the perception by many Hong Kong scholars that political and ideological considerations were increasingly displacing academic standards.
As centers of learning and research, universities play a critical role in shaping and informing debate on a wide range of social, scientific and moral issues. In many countries, however, professors who peacefully express ideas or views that government does not want to hear are subject to intimidation, arrest and loss of livelihood. Professors singled out for such strong-arm tactics typically are highly regarded academics who openly spoke their minds on controversial subjects. Reprisals against such individuals are significant not only for their impact on individual lives and careers, but also, given the high profile of universities in most countries, for their effectiveness in chilling political criticism and stifling intellectual debate more generally. Prominent examples in 1997 included attacks on professors in Egypt, Gaza and Cuba.
In Egypt, Dr. Ahmed al-Ahwany, assistant professor of engineering at Cairo University, was arrested by state security forces in April and subsequently imprisoned for nearly a month merely for possessing and seeking to make copies of a paper critical of a controversial new agrarian law due to take effect in September. The government's arrest of Dr. Ahwany proved to be the first shot in what was to become a concerted government barrage against discussion and criticism of the new law.
Palestinian Authority security forces arrested Dr. Ahmed Subuh, a professor of education at al-Azhar University in Gaza, at his home in July. The arrest came shortly after Dr. Subuh had administered an examination to students in which, among nine short essay questions asking students to analyze the interplay between social and educational problems, he included a question asking students to address the impact of corruption in either the university administration or the Palestinian Authority. Security forces subsequently raided Dr. Subuh's home and seized the exam papers of the students. Dr. Subuh, who has been critical of the leadership of al-Azhar University installed by the government, was also director of the Touffah Educational Development Center, an autonomous non-profit organization widely respected for its innovative community education programs. At the time of this writing, Dr. Subuh remains in custody.
In Cuba, two academics, Dr. Felix A. Bonne Carcasses and Dr. Marta B. Roque Cabello, were among four leaders of a pro-democracy group arrested during a government crackdown in July. Prior to the arrests, the group, called the Internal Dissidents' Working Group for the Analysis of the Cuban Socioeconomic Situation, had publicly urged Cubans to abstain from voting in the upcoming elections and had issued a paper titled "The Homeland Belongs to Everyone," in which they criticized an official Communist Party discussion paper on the Cuban economy and asserted their own view that greater democratization is a prerequisite to effective economic liberalization. Dr. Cabello, economist and director of the Cuban Institute of Independent Economists, was also reported to have angered government officials by criticizing government economic forecasts. The four activists, who remain in prison at the time of this writing, were charged with plotting to disturb the upcoming national election, misrepresenting the condition of Cuba's economy, and threatening foreign investors.
Suppression of Student Protest
Political turmoil in society inevitably finds an important outlet on college campuses, particularly among student groups. Although the university typically is home to advocates of ideas and views across the political spectrum, the most active student groups in times of political upheaval tend to be vocal critics of the political status quo and proponents of reform. Important characteristics of the university facilitate such student activism, including an intellectual climate relatively open to debate and expression of controversial ideas, the ease of organizing group activity in the typically close-knit campus environment and the availability of public spaces suited for assemblies. Unfortunately, those same characteristics make it easy for intolerant government authorities to identify student critics and to intervene to silence dissent. Although campus unrest at times is instigated by student groups who engage in unilateral acts of violence that cannot be condoned, the evidence in 1997 again demonstrated that a far more common source of campus violence is government use of armed force and coercion to suppress student dissent.
Numerous governments mobilized armed security forces to quell student protests in 1997. Prominent examples included Burma, Indonesia, Israel, Kenya, Nigeria, South Korea and Zambia. In most cases, tens if not hundreds of students were seriously injured in the crackdowns, and, in Burma, Kenya and Nigeria, students were killed. The situation in Kenya, in which repeated campus crackdowns claimed the lives of at least six students and led to the closure of leading Kenyan public universities for extended periods of time, illustrated the often tragic consequences of government failure to respect basic civil and political rights on campus.
The recent outbreak of violence on Kenya's campuses began at the end of 1996. On December 17, 1996, Festus okong'o Etaba, an unarmed first-year student at Egerton University, was shot and killed by police during a student demonstration demanding a partial refund of fees allegedly owed students by the university. The following day, police shot and killed Kenneth Makokha Mutabi and Eric Kamundi, both unarmed, who were among a group of students at Kenyatta University who had gathered peacefully to mourn the death of Mr. Etaba and to protest the use of lethal force by police against student protesters.
On February 23, 1997, Solomon Muruli, a student leader at Nairobi University, was killed after a suspicious early morning explosion and fire in his dormitory room. Muruli, who had helped organize a series of campus demonstrations protesting government neglect of the universities and favoritism in the award of student loans, previously reported having been abducted and tortured by police in November 1996 and had identified a senior police officer as one of his abductors. Less than two weeks before his death, Muruli reported having received death threats. Nairobi University was closed for over a month following students protests over the failure of the authorities to protect him.
On July 7, 1997, at least two students were among nine or more individuals killed in a violent government crackdown on opposition groups seeking constitutional reform. On the morning of July 7 police raided the campuses of Kenyatta and Nairobi universities, tracking down dozens of students who supported the reform movement and attacking them in dormitory rooms and classrooms where year-end exams were being held. Numerous students, several bystanders, and at least one professor were hospitalized, some with gunshot wounds. Campus rallies to protest the violence the subsequent day were again violently disrupted by the police, leading to a series of running battles between police and students and to closure of Kenyatta University and all four campuses of Nairobi University on July 9.
The events in Kenya reflected a vicious cycle of student protest, violent government crackdown and angry student counter-response. At the root of the problem has been pervasive government interference in campus affairs, repeated attacks on the right of students and faculty to express their views and grievances, and failure of government security forces to comply with international standards regarding the use of force. The Kenyan government, moreover, repeatedly closed universities in the face of political turmoil, depriving students of their right to further their education, forcing all teaching and research to come to a halt and seriously compromising the ability of the academic community to provide the training and knowledge that the Kenyan government elsewhere said was essential to Kenya's future.
Travel and Exchange
Student and information flows across borders have been essential to the academic enterprise since its inception. Today, such international contacts are more common and more central than ever before, a reflection of the increasing internationalization of scholarship that has accompanied the end of the Cold War, the development of new technologies, most notably the Internet, that facilitate international communication, and the rapid growth in collaboration between academics from different countries who share a range of social and scientific commitments, including the environment, women's issues and human rights. Governments suspicious of ideas that circulate beyond the reach of the state, or fearful that critical domestic scholars will find support for their views among their counterparts in other countries, often deny such scholars travel permits and Internet access. Other governments use travel restrictions on scholars to punish foreign governments, denying their scientists and scholars entry to attend international conferences or to engage in collaborative research. Both forms of abuse continued in 1997.
In the United States, the government in March denied visas to five Cuban scientists who had been invited to present their work at a conference on quantum chemistry in Florida and to working visits to Cornell University and Clark Atlanta University. Although a contingent of prominent United States scientists organized by the New York Academy of Sciences volunteered to attest to the credentials of the Cuban scientists, the visas were not issued. The U.S. government based its denials on the claim that "entry [was] detrimental to the interests of the U.S." The refusal of the U.S. government to issue the visas was particularly troubling in view of long-term U.S. support for the right of scientists to travel freely, including its willingness during the Cold War to issue visas to scientists from the Soviet Union and the nations of eastern Europe.
In Iran, the Ministry of Information seized the passport of prominent scholar Dr. Abdol Karim Soroush, preventing him from attending academic seminars to which he was invited in Germany, Malaysia and England, where the British Society for Middle Eastern Studies had invited him to give a plenary address at a conference held July 6-9, 1997. Dr. Soroush, a philosopher and leading proponent of religious and governmental reform in Iran, was also effectively banned from teaching and warned by a government official that he faced possible imprisonment if he continued to speak his mind.
In Tunisia, two academics were among a group of government critics denied passports. Dr. Moncef Ben Salem, founder of the mathematics department at the University of Sfax and a former visiting scholar at universities in the United States, had been denied permission to travel abroad since 1990 and was banned from teaching in retaliation for his steadfast criticism of the secular orientation of the current government. Dr. Moncef Marzouki, a physician and professor of neurology and preventive medicine at the University of Sousse and an advocate of democratic reform and human rights in Tunisia, was denied a passport and prevented from accepting an invitation to travel to Strasbourg in June to attend European Parliament hearings on human rights in Tunisia.
As the preceding discussion demonstrates, attacks on the civil and political rights of faculty and students were commonplace in 1997. In many cases, the attacks were significant not only for their impact on academic communities but also for their serious and far-reaching impact on citizens' basic rights to freedom of inquiry, expression and association. Because the great majority of universities around the world are public institutions or are dependent on government funding, and because such institutions typically are viewed by governments as "prime instruments of national purpose," governments have considerable power to influence what takes place on campus and an incentive to wield that power. A wide range of governments abused their power in 1997, engaging in arbitrary arrests of critical scholars, censorship of research and publication on matters of public concern, and violent crackdowns on campus protests. Due to the high public profile of universities and, in many cases, of the academics who were targeted, such attacks often played an exemplary role, serving as a warning to individuals throughout society that dissent and political opposition would not be tolerated.
LESBIAN AND GAY RIGHTS
Lesbians and gay men in countries throughout the world continued to face discrimination, harassment, arbitrary arrests and torture in 1997, due to their sexual orientation. They were subjected to discriminatory legislation as well as violent treatment and persecution by police. The year also saw some positive developments in lesbian and gay rights. A decision by the European Court of Justice supported more equitable employment rights for homosexuals, encouraging gay rights groups in their campaign for non-discriminatory treatment in European Union member states. In some other countries, laws criminalizing sodomy-traditionally enforced only against homosexuals-were repealed.
Discrimination and Violence
The following were some instances of discrimination and violence reported and protested by nongovernmental organizations and the press.
Article 200 of Romania's penal code, which had previously outlawed all homosexual acts, was amended slightly in September 1996 to punish only homosexual acts "committed in public, or which cause public scandal." The improvement was largely illusory, however. In a number of cases reported to Human Rights Watch during 1997, private conduct was made "public" by an informant-an individual who witnessed or participated in a private homosexual act- who gave this information to the state. Critics of the law noted that the key article's wording might also be employed to limit free expression, assembly, and association. Meanwhile, gays and lesbians in Romania continued to be frequent victims of police brutality. Three men from Constanta were arrested in June on charges of having sex in a deserted storage cabin;all three reported of being beaten by civil guards and by a major in the municipal police, one was not been allowed to see his family after his arrest. Another told Human Rights Watch that, under threat of further beatings, he was coerced into signing three statements, the contents of which were unknown to him. Gay men also reported that police often waited in known "cruising areas" in order to extort money in return for not arresting them.
In Bulgaria, gay men were targets of police harassment, even for associating with one another. On March 5, police raided the Flamingo gay bar in Sofia, beating up and harassing several people, some of whom were taken to the police station and handcuffed for as long as twenty hours. According to the Bulgarian Helsinki Committee, on August 29, police raided another gay bar in Sofia and assaulted its patrons, On July 12, Demet Demir, a Turkish transvestite, was reportedly severely beaten and illegally detained by police when she intervened against their assault on a young Kurdish girl selling handkerchiefs in Istanbul. The incident, reported to the U.S.
In Zimbabwe, virulent anti-homosexual statements made in recent years by President Robert Mugabe, church leaders and various political figures had created a hostile environment for gay men and lesbians. Similarly, in March, while speaking to the Irish press President Mugabe denounced homosexuality and said, "Gays can never be something we can accept in Zimbabwe." Some church leaders have called for the lynching of homosexuals. Although homosexuality is not illegal in Zimbabwe, sodomy remained a criminal offense during 1997. A bill introduced in 1996, and at this writing being debated in Parliament, would make HIV exposure through sodomy an aggravated offense-whether the act was consensual or forced-punishable by up to fifteen years in prison, and would allow for the involuntary HIV testing of alleged sexual offenders
The Zimbabwean government also employed censorship laws to suppress gay-oriented literature, including homosexual-produced material on HIV/AIDS prevention. Gays and Lesbians of Zimbabwe (GALZ), which in 1995 and 1996 was banned from participating in the Zimbabwe International Book Fair, returned to the event in 1997, as the ban had been overturned in court. However, GALZ did not hold an official exhibition for fear of government reprisal, opting instead to distribute materials on the association and its counseling services. The government continued to cut funding for Centre-the only organization in Zimbabwe offering HIV/AIDS counseling- on the basis that the director of the organization was affiliated with GALZ.
At a ruling-party women's congress in December 1996, President Samuel Najoma of Namibia encouraged discrimination and hostility against gays and lesbians, stating, "Homosexuals must be condemned and rejected in our society."
Asia and the Pacific
In December 1996, the Rajabhat Institute Council-the collective governing body of all of Thailand's teachers colleges-declared that it would bar homosexuals from enrolling in any of its colleges nationwide. The announcement brought strong criticism from human rights and lesbian and gay rights groups in Thailand. The organizations urged that the ban be dropped and that an anti-discrimination clause be added to the charter of the colleges. The Rajabhat Institute later lifted the ban but proposed a new rule to keep out what it described as "sexually abnormal" people: applicants would be required to take a test, which would be prepared by the World Health Organization. If approved by the Rajabhat Council, the new rule would take effect in the 1998 academic year.
In Singapore, the government refused to register the grassroots gay and lesbian organization People Like Us (PLU). The PLU was required to cease activity or face heavy penalties on organizers and members, and its leadership was forbidden to meet the press or give interviews regarding the decision.
In China, lesbians and gays were, as previously, harassed by police and jailed or fined. They continued to be unable to organize, meet, or obtain information about HIV/AIDS prevention in order to protect themselves.
South Korean censorship laws prohibit the screening of any films about homosexuality. Therefore, local government officials declared the first Seoul International Queer Film and Video Festival illegal. The festival was due to open on September 19. Authorities threatened to seize screening equipment and materials and warned the organizers of a possible twenty-million Korean won (U.S.$22,000) fine and a three-year jail sentence if they proceeded with the event.
The Australian Human Rights and Equal Opportunity Commission continued to criticize Western Australia as the worst-performing state in the nation on gay issues. Western Australia has the highest age of consent for male homosexuals at twenty-one years, compared with sixteen to eighteen years in the rest of Australia. Same-sex couples in Western Australia also continued to be denied legal entitlement available to heterosexual couples, such as bereavement, career leave, compensation rights, tax concessions, and property rights.
On June 14 police arrested fourteen gay men during a raid on a gay bar in Cuenca, Ecuador. According to local gay and lesbian organizations, and IGLHRC, one of the men was raped twice by other inmates while in police custody, and another suffered epileptic seizure but was offered no medical assistance. The men were reportedly released after being charged with intention to commit crimes against morality. Article 516 of the Ecuadorian penal code criminalizes consensual sex between adult men, with sentences of four to eight years in prison. The article violates article 2 (equal protection) and article 17 (right to privacy) of the International Covenant on Civil and Political Rights (ICCPR) as affirmed by the United Nations Human Rights Committee in its 1995 decision Toonen v. Australia, which condemned anti-sodomy legislation. The ICCPR has been ratified by Ecuador.
The rights group Collectivo Arco Iris on September 24 released a report that criticized the Morality Brigade of the Police and the 2nd Commissary in Rosario, Sante Fe province, for discriminatory treatment of gay, lesbian, bisexual and transgendered persons. According to the report, despite the anti-discrimination clause adopted by the Rosario town council in December 1996, which covered discrimination based on sexual orientation, transvestites were routinely arrested on charges of prostitution and for cross-dressing, and were forced to undergo HIV testing under threat of accusation of the crime of homicidal intent. The arrests were made on the basis of article 78 (offenses against decency), article 81 (prostitution) and article 87 (cross-dressing) of the penal code of the province of Santa Fe.
In Brazil, a relatively tolerant society, there was growing violence against homosexuals. According to the Gay Group of Bahia (GGB), a monitoring organization, 118 homosexuals and transvestites were murdered in Brazil during 1996 and sixty in the first five months of 1997. There have been a total of 1,528 violent deaths of homosexuals and transvestites since 1980, according to GGB.
On December 16, 1996, following months of threatening phone calls, pranks and minor acts of vandalism, the office of Triangulo Rosa, a gay and lesbian organization in Costa Rica, was forced to close down. IGLHRC received reports that the local police refused to accept Triangulo Rosa's complaints, claiming that the case was not within their jurisdiction.
In December 1996, according to Amnesty International, twenty-three Filipino workers in Saudi Arabia were flogged in installments of fifty lashes over a period of four weeks following their arrest for homosexual behavior. Following the punishment, the Filipinos were to be deported.
Twenty Filipinos in Doha, Qatar suspected of engaging in homosexual acts were deported in October 1997, according to press reports. At this writing, sixteen more Filipinos are awaiting deportation on the same charges. The police arrested all the defendants on October 1 in a raid on clothing and barber shops that had been under surveillance. Foreigners convicted of homosexual acts in Qatar are usually sentenced to five years in prison, followed by deportation.
Anti-homosexual remarks were made at a high school on December 20, 1996 by Israeli President Ezer Weizmen, who said gays and lesbians "disgusted" him and called for legal steps to determine the status of homosexuals. Gay and lesbian organizations in Israel and members of the Knesset condemned the president's remarks. The president later apologized.
At this writing, thirty-nine states in the U.S. lack anti-discrimination laws that would protect gays and lesbians for being dismissed from their jobs because of their sexual orientation. In response to this lack of protection, the EmploymentNon-Discrimination Act (ENDA) was reintroduced in the U.S. Congress in June. The bill would have extended federal employment anti-discrimination protections-currently provided based on race, religion, gender, national origin, age and disability-to sexual orientation. In various parts of the U.S., discrimination against gay and lesbian employees has been justified, in some cases, by noting "anti-sodomy" laws that criminalize many sexual practices. In May 1997, an appellate court upheld the Georgia attorney general on his decision to rescind a job offer made to Robin Shahar, a lesbian; the attorney general's argument had been that a lesbian would confront an inherent conflict of interest in enforcing the laws of Georgia, which include a felony sodomy law.
ENDA did not require an employer to provide benefits for same-sex partners of employees and did not apply to members of the armed forces, thereby having no impact on the "don't ask, don't tell, don't pursue" policy, under which gay service members are not asked about or required to admit their sexual orientation. The policy is designed to keep sexual orientation a "personal and private" matter and prohibits commanders from inquiring about the sexual orientation of their troops. At this writing, no court of appeals actions challenging the constitutionality of the policy have been upheld, although a New York district court judge in June ruled that the policy denied equal treatment under guarantees of due process because only gays and lesbians were subject to separate, discriminatory regulations. Two years earlier, the same judge had ruled that the policy violated the free-speech rights of gay and lesbian troops. The 1997 decision was appealed. According to the Servicemembers Legal Defense Network (SLDN), a legal advocacy group for gay rights, in 1996 there were 443 specific violations of the policy where suspected gay servicemembers were asked, pursued, and harassed; figures for 1997 are not yet available at this writing.
In the state of Hawaii, the state Supreme Court was due to make a decision in early 1998 on the constitutionality of a state law allowing same-sex marriages. Under the Defense of Marriage Act (DOMA), which became national law in 1996, marriage in the United States wasdefined as a union between a man and woman, and same-sex marriages legal in one state could not be recognized in other states. At this writing, twenty-six states have passed laws prohibiting same-sex marriages.
In recent years there has been growing trend toward more frequent, more violent hate crimes against gay, lesbian, bisexual and transgendered persons in the U.S. At this writing, final figures for 1997 are not yet available. However, 1995 figure compiled by the Federal Bureau of Investigation (FBI) revealed an increase of 12 percent in reported hate crimes against gays and lesbians. In 1996, according to the National Coalition of Anti-Violence Program (NCAVP), there was a 6 percent increase in reported hate crimes, with an overwhelming majority directed not at property but at individuals. The NCAVP also noted that the intensity and viciousness of attacks against gays and lesbians intensified in 1996. Of those injured, 35 percent suffered physical injury or death. Assaults resulted in injury or death to 867 victims. NCAVP further reported that when victims of violence sought police assistance, 37 percent were met with police indifference and 12 percent were physically abused.
In research on U.S. prison conditions, Human Rights Watch noted that prison guards and officials continued to be indifferent to the sexual abuse of gay prisoners. One gay inmate in Texas told Human Rights Watch that, when he tried to report his abuse to a guard, he met with open hostility and reluctance to intervene. Another prisoner, describing a similar experience, told us that guards' hostility towards gays gave the abusive inmates a sense of "approval to beat, rape and extort gay men in prison."
In a victory for gay rights in Britain, the European Court of Justice in August ruled that it was a breach of European Union (E.U.) law for an employer to deny the same employment rights to lesbian couples that are extended to unmarried couples. The court ruled that it was wrong for South West Trains to deny a lesbian employee's live-in lover travel concessions that were available for workers' husbands, wives, and common-law spouses of the opposite sex. Gay rights groups described the ruling as a vital change for the estimated thirty-five million gay and lesbian people in the E.U. as opening the way for measures to outlaw discrimination against homosexuals at work. At this writing, following a ruling by the European Commission of Human Rights, the British parliament is also considering at "the earliest opportunity" lowering the age of consent for homosexuals from eighteen years to the age of sixteen that applies to heterosexuals.
After nine years of community organizing to repeal anti-homosexual laws in Tasmania, Australia, which carried jail terms of twenty-one years, the Tasmanian legislature finalized a vote to repeal the statute on May 1, according to IGLHRC.
In another landmark judgment, the Cape High Court of South Africa on August 4 declared the criminalization of same-sex sodomy unconstitutional under the new South African constitution. In State v. Kampher, the court overturned the conviction and suspended sentence of a Knysna Correctional Services prisoner for having consensual sex with another prisoner while awaiting trial. This decision, however, does not apply to the other eight provinces, where prisoners are still charged each year.
Access to political asylum for people fleeing persecution based on their sexual orientation became more common in North America and Western Europe. Canada continued to accept more gay and lesbian refugees than any other country. In June, the U.S. Ninth Circuit Court of Appeals reversed a 1995 Board of Immigration Appeals ruling against a Russian lesbian activist seeking asylum on grounds of persecution because of her sexual orientation. The ruling sent Pitcherskaia v. INS back to the Board of Immigration Appeals for a new hearing on whether Alla Pitcherskaia had a credible fear of persecution if forced back to Russia. According to Pitcherskaia, she had been arrested and beaten by police several times because of her sexual orientation, was forced to undergo state medical "treatment" as a lesbian, and was threatened with long-term institutionalization, medication, and electric shock therapy.
The growing case load at the two ad hoc U.N. tribunals, the fervent but dashed hopes for a genuine trial of Pol Pot, and serious violations of humanitarian law occurring in the Republic of the Congo set the context for the movement towards a permanent International Criminal Court (ICC) in 1997. Most importantly, the 1998 date for a diplomatic conference of plenipotentiaries to finalize the court's statute propelled increased state participation in the negotiations and pushed the process to a new critical stage. During the year civil society groups from around the world became engaged as more and more attended and influenced the Preparatory Committee sessions debating the power of the court to try cases of genocide, crimes against humanity and serious war crimes.
By the end of 1997, the question was no longer whether there would be a permanent court but whether the court that emerged from the negotiations would have the independence and credibility to carry out its crucial tasks. At the August Preparatory Committee session it was clear that there was no advantage to sacrificing principle to conciliate members of the five permanent members of the Security Council (P5), who would not ratify the ICC statute at an early date, and that insistence on points of principle for an effective court was essential. The expected confrontation between the P5 and the "like-minded" states, which would test the latter's commitment and determination, will decide whether the ICC becomes an international criminal court in name only or a great step forward for the rule of law and protection of human rights that deserves the support of civil society worldwide.
The Work of the
Preparatory Committee in 1997
In December 1996, the U.N. General Assembly adopted a resolution setting April 1998 as the completion date for the work of the Preparatory Committee and calling for a diplomatic conference in mid-1998 to finalize the ICC's draft statute. This was a milestone in the negotiations. With an end in sight, a larger number of states, including governments from Africa, Asia and Latin America that had made the transition from dictatorship and had attempted to account for abuses committed under previous regimes, brought their perspective to the debate. By the August 1997 session, approximately one hundred states were sending delegations to the Preparatory Committee session.
The Preparatory Committee moved to fulfill its mandate during 1997. At its February session, delegates made considerable headway in shaping a consolidated text on the definitions of crimes within the court's jurisdiction as well as the accompanying general principles of criminal law. The great majority of delegations agreed that the definition of genocide codified in the 1948 Genocide Convention should be reproduced in the ICC's Statute. While there was overwhelming agreement that crimes against humanity did not require a nexus with armed conflict, the U.S. and U.K. delegations insisted on a limited definition of the acts which would be deemed to constitute these crimes.
The definition of the war crimes committed in internal armed conflict coming within the jurisdiction of the ICC generated intense controversy. The U.S., U.K. and France, insisting that the PrepCom had no mandate to codify new law, argued that the court's jurisdiction must be restricted to a narrow list of crimes under customary international law. Other states, refusing to accept customary international law as the parameter of offenses, proposed a broader list of crimes for the purposes of the court's jurisdiction. In advance of the December Preparatory Committee session several governments met to strike a compromise that would broaden the court's jurisdiction in internal armed conflicts. An important product of discussions at the February meeting conferences was the explicit inclusion in these proposals of rape and other sexual violence as crimes, addressing women's human rights concerns as an issue for the first time.
At intercessional meetings, further progress was made. In June, delegates from forty countries, appearing in their individual capacity, attended a conference at the International Institute of Higher Studies in Criminal Sciences in Siracusa, Sicily. They prepared a consolidated compilation of proposals on the technically complex issue of criminal procedure, including provisions on the rights of suspects, the accused, victims and witnesses. This text became an essential document for the working group at the August Preparatory Committee that was charged with drafting the procedural aspects of the court's statute. Another session at Siracusa was scheduled for mid-November to prepare an abbreviated document on the issues of state cooperation and mutual assistance.
The August PrepCom dealt with the key political issues that would ultimately determine the court's ability to function effectively, independent of political interference. Unfortunately, the permanent members of the Security Council championed proposals that, if adopted, would seriously weaken the court. On complementarity, or the relationship between national courts and the ICC, a consolidated text without brackets emerged, promoted by the U.S., the U.K. and France. The text limited ICC jurisdiction to cases where the national authorities are "unable" or "unwilling" to investigate or prosecute. This draft, if codified, would raise the threshold for the exercise of jurisdiction by the ICC. It put the burden on the court to demonstrate not only the factual situation--that there has been no effective prosecution at the national level--but also the underlying motivation for the state's failure to prosecute or its inability in that respect.
The role of the Security Council remained a point of contention. The permanent members supported its power to prevent the exercise of ICC jurisdiction by veto in cases relating to a matter that the Security Council is considering under its powers to maintain international peace and security. Other delegations vehemently opposed such a potential politicization of the court's docket. Certain delegates, in a compromise effort, expressed a willingness to acknowledge the prerogatives of the Security Council by proposing a provision that would empower it to prevent the ICC from exercising jurisdiction, but only after a majority decision by the Security Council to do so. The U.S. delegation's refusal to consider anything but a right of the Security Council to veto cases represented a major obstruction.
Delegates also debated the power of the prosecutor to initiate an investigation ex officio, as opposed to having to wait on a referral from the Security Council or a state party complaint. The majority supported such broad powers as well as ICC authority to determine jurisdiction itself without first obtaining the consent of several state parties. The U.S. and U.K., however, reserved their position on these key questions pending resolution of the complementarity question.
In addition to these more political questions, considerable progress was made in the area of criminal procedure. The willingness of states with common law traditions, such as the U.S. and U.K., to compromise and accept the incorporation of certain procedural features typical of civil law systems, such as a pre-trial chamber and continued proceedings following an admission of guilt, was commendable. Furthermore, significant developments occurred during the course of the August PrepCom with respect to victim and witness protection, and the investigation of gender-related crimes. A witness protection unit was included with the draft text to ensure the adoption of measures necessary for the protection of victims and witnesses. The text that emerged from this session also contained language explicitly calling for the effective and sensitive investigation of crimes of gender and sexual violence.
The Role of Various States
The intransigence of the French delegation-on procedural and other issues and notwith-standing compromises on the part of others--was disturbing. In 1997, France played an especially obstructionist role, and there was no difference in the French position after the change in government in Paris. While the U.K.'s position changed measurably after Labour's electoral victory, and the British delegates were genuinely more accessible and open, substantive changes lagged behind the Labour Party's professions of support for the ICC. The U.S., while supportive of the establishment of a court, pressed for an ICC that it, as a global military power, would be able to call on at its will, or not, more like a permanent ad hoc tribunal than a genuine international criminal court.
The like-minded states, an increasingly diverse group from Africa, the Americas, Europe, and Asia committed to an effective ICC, continued to push the process ahead during and between the 1997 Preparatory Committee sessions. The forty-member group had succeeded in gaining General Assembly approval for the 1998 conference date. As the negotiations moved into drafting, the like-minded states faced new challenges in managing their differences over substantive issues, but they worked to identify a core of common positions for a principled basis of unity.
In 1997, the hardball negotiating strategies of the five permanent Security Council members underscored the need for a cohesive like-minded strategy. The ICC, like so many human rights treaties before it, seemed likely to be established without the P5, whose ratification would be expected to come in time and with the court's growing prestige.
and Civil Society
During 1997 the numbers of nongovernmental organizations (NGOs)and individuals playing an active part in the movement for a strong and effective ICC grew dramatically. The Coalition for an International Criminal Court (CICC), with many international human rights groups on its steering committee, continued to facilitate this participation and disseminate information internationally. In 1997, the coalition took significant steps to bring NGOs into the campaign. First, more representatives from around the world attended and lobbied delegates at the 1997 Preparatory Committee sessions. In February, there were representatives from Africa, the Americas, Asia and the Middle East. In August, there was even a larger turnout from Africa, the Americas, the Middle East and Europe. The presence of these international representatives had a pronounced effect on delegates, who understood that their governments' role in the negotiations was being monitored by interested domestic constituencies.
At the same time, there were several important organizational meetings around the world. The Coalition for the International Criminal Court, working with domestic groups, helped to set up national coalitions in France, Italy and the United Kingdom. In Brussels a coalition focusing on the European Union's institutions was launched. Working with national and international human rights groups as well as civil society organizations, these coalitions planned to publicize the need for an effective ICC and the status of the debate, as well as to lobby their respective governments. In February, a nascent women's caucus emerged as a member of the coalition and a dynamic force in its own right. By the August session, the caucus had expanded, with its lobbying efforts reflected in the texts that emerged from both sessions. Meetings were held simultaneously with the August session among advocates of children's' rights to review issues of importance to them and discuss the possibility of working together to press children's issues.
No Peace Without Justice, a group launched by the Europe-based Transnational Radical Party, sponsored meetings for the political leaders in Paris, Montevideo and Atlanta. NPWJ planned similar meeting in Africa and possibly Asia.
The Work of
Human Rights Watch
In the face of numerous proposals to weaken the court, in 1997 Human Rights Watch pursued a two-fold strategy. First, Human Rights Watch concentrated on forging a principled partnership with states committed to the establishment of an effective ICC, assisting the like-minded group while working to make it more diverse geographically and politically. In building support leading up to the Diplomatic Conference, Human Rights Watch emphasized the importance of regional events of governments and nongovernmental organizations. We also helped to facilitate a September meeting of member states of the Southern African Development Community (SADC), where representatives of the justice ministries of ten SADC states met in South Africa to discuss the key issues arising from the ICC draft statute. After three days of discussion these representatives agreed to ten basic principles of consensus critical to an effective ICC. In October, during the General Assembly's Sixth Committee debate of the ICC resolution, South Africa's ambassador, speaking on behalf of SADC, cited these same ten principles as "essential to the effective establishment and functioning of such an international criminal court."
Simultaneously, Human Rights Watch approached intergovernmental organizations like the European Union and the African Commission of Human and People's Rights. Our office in Brussels helped launch the Brussels coalition and worked to form a Friends of the ICC group in the European Parliament. The parliament was scheduled to hold a hearing on ICC in late November.
Secondly, Human Rights Watch began reaching out to other concerned organizations to build a constituency in civil society that would both support like-minded states and pressure more obstructive governments, including permanent members of the Security Council. In April,Human Rights Watch prepared a four-page action alert, translated into six languages, in advance of the August Preparatory Committee session for distribution to NGOs throughout the world. Human Rights Watch staff members made the ICC an important item in their various missions, pursuing support for the ICC at conferences in the Middle East, Latin America, and Africa. In advance of the formation of a French national coalition we engaged in discussions with major human rights organizations in France, and staff raised the ICC among nongovernmental organizations attending the meeting of Commonwealth states in Edinburgh.
Human Rights Watch also raised the issues in bilateral meetings with government officials-Diet members and Foreign Ministry officials in Japan, the foreign ministers of Brazil, the president of Venezuela, and senior officials in Bonn and Paris, among others. By actively taking the substantive issues raised by the ICC out to counterpart groups and officials internationally, Human Rights Watch added its support to promote a worldwide discussion of the search for justice and the need for accountability.
FREEDOM OF EXPRESSION
ON THE INTERNET
On June 26,1997, the United States Supreme Court struck down the Communications Decency Act (CDA), which had become national law in February 1996. The CDA was an attempt by Congress to criminalize online communications that were legal in other media, specifically communications that might be deemed "indecent" or "patently offensive" to minors. Because the U.S. remained overwhelmingly the world's largest national market for Internet use and communications, the outcome on the CDA had been closely watched by both governments elsewhere and cyberliberties groups worldwide.
The decision established a fundamental position as articulated by the court that on the Internet, citizens are not mere consumers of content but also creators of content. The court also recognized that content on the Internet is as diverse as human thought. Human Rights Watch had opposed the Communications Decency Act since its inception and, together with nineteen other organizations led by the American Civil Liberties Union, was a plaintiff in the suit that led to Supreme Court decision.
Despite growing acknowledgment during 1997 among regulators around the world that the Internet undermines their control of the free flow of information, governments continued their rush to restrict expression on the Internet. For example:
* Internet access in Singapore remained curtailed, although the National Internet Advisory Committee, which counsels the Singapore Broadcasting Authority on the regulation and development of its computer network, recommended abolition of the ban on "anti-government propaganda" on the Internet.
* In January, the United Arab Emirates' monopoly Internet provider, the state telecommunications company Etisalat, launched a program to censor web sites.
* In March, a decree was issued by government of Vietnam which established strict controls over Internet use; the decree restricted domestic use of the Internet, supervised all Internet content, and controlled international links between Vietnamese users and the global World Wide Web.
* In July, Australia and Ireland announced proposals for Internet regulation that would threaten free expression and make service providers liable for the content on their sites.
* Also in July, the German Parliament approved similar legislation which made Internet service providers liable for offering a venue for "illegal content" if they do so knowingly and it is "technically possible and reasonable" to prevent it.
* Declaring the Internet as "the end of civilizations, cultures, interests and ethics", the Iraqi government announced a total ban on Internet access.
In the United States, meanwhile, legislative proposals contemplated establishing controls on the access to and use of cryptography, or data-scrambling technology, which is used to protect the privacy of communications online. Encryption software and anonymous way-stations for messages-called "remailers" because, after erasing the identity of the originator, they pass messages on to the destination-came under scrutiny. The U.S. government argued for official access to encryption keys to avert terrorism and other crime that might be planned on the Internet; civil libertarians and human rights organizations argued that privacy rights took precedence and that speech, even when encoded using encryption software and expressed through the use of a medium such as the Internet, is no less speech and deserves the full protection of both international and constitutional law. Of particular concern to Human Rights Watch and others was the need to maintain secure communication on the Internet for human rights activists in countries where authorities routinely monitor and control all forms of communication and take reprisals against unauthorized speech.
Recognizing that the Internet can be a democratizing force and a useful tool for the advocacy of human rights, Human Rights Watch undertook research on how the use of the Internet had already had a positive impact in several campaigns for protection of human rights. While continuing to document and protest attempts to silence the Internet, we began working in coalition with civil liberties, labor, journalists' andother groups internationally in an effort to develop coordinated approaches to defending individuals' access to the Internet and to making their online communications private and secure.
As part of this effort, Human Rights Watch and other organizations filed an amicus brief in the case of Bernstein v. U.S. Department of Commerce. The case emerged from the U.S. government's refusal to accept the findings of a court that favored protection of speech over the administration's economic and political agenda. Professor Daniel Bernstein had challenged government export controls that restricted his ability to publish on the Internet an encryption program he called "Snuffle." A federal district court in California had upheld Bernstein's claim that the controls were an impermissible prior restraint on protected speech, but following the judgment, the Clinton administration had transferred authority for such controls from the State Department to the Commerce Department and had reinstituted virtually the same set of controls the court had struck down. This litigation is to enjoin enforcement of the latest set of controls.
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