Human Rights Law: From Dissemination to Application: Essays in Honour of Goran Melander (The Raoul Wallenberg Institute Human Rights Library)

HUMAN RIGHTS LAW: FROM DISSEMINATION TO APPLICATION ESSAYS IN HONOUR OF GÖRAN MELANDER

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 26

HUMAN RIGHTS LAW: FROM DISSEMINATION TO APPLICATION

ESSAYS IN HONOUR OF

GÖRAN MELANDER

BY

JONAS GRIMHEDEN AND ROLF RING (EDS.)

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 26

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2006

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CONTENTS INTRODUCTION....................................................................................................vii Jonas Grimheden and Rolf Ring

PART I HUMAN RIGHTS EDUCATION GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION: MULTICULTURAL OR INTERCULTURAL – OR A COMBINATION OF THE TWO? ............................................................................. 3 Asbjørn Eide THE IMPORTANCE OF AN EDUCATION IN HUMAN RIGHTS ...................... 25 M. Arthur Diakité THE EDUCATION OF POLICE IN HUMAN RIGHTS – A FRAMEWORK FOR HUMAN RIGHTS PROGRAMMES FOR POLICE....................................... 31 Ralph Crawshaw HUMAN RIGHTS EDUCATION IN CHINA......................................................... 47 LI Baodong HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA: THE CONTRIBUTION OF THE RAOUL WALLENBERG INSTITUTE ..................... 57 Sun Shiyan HUMAN RIGHTS EDUCATION IN THE NETHERLANDS................................ 85 Cees Flinterman and Stacey Nitchov THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS DURING THE ACTIVE HOSTILITIES OF INTERNATIONAL ARMED CONFLICT IN INTERNATIONAL HUMANITARIAN LAW.............................. 99 David A. G. Lewis THE SELF-REFLECTIVE HUMAN RIGHTS PROMOTER............................... 119 Jonas Grimheden

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CONTENTS

PART II HUMAN RIGHTS APPLIED HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW................... 131 Ove Bring HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS ........... 149 Vojin Dimitrijeviü and Marko Milanoviü NEVER AGAIN? RWANDA AND THE WORLD .............................................. 169 Lennart Aspegren THE CONTESTED NOTION OF FREEDOM OF OPINION .............................. 203 Herdís Thorgeirsdóttir FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? THE LEGACY OF RAOUL WALLENBERG IN THE CONTEMPORARY ASYLUM DEBATE .............................................................................................. 237 Gregor Noll IMPLEMENTING INTERNATIONAL HUMAN RIGHTS LAW ON BEHALF OF ASYLUM SEEKERS AND REFUGEES: THE RECORD OF THE NORDIC COUNTRIES ......................................................................................... 251 Robin Lööf and Brian Gorlick LEGAL POSITION OF ASYLUM SEEKERS IN AUSTRIA .............................. 289 Lauri Hannikainen REFUGEES IN SWEDISH PRIVATE INTERNATIONAL LAW ....................... 311 Michael Bogdan CIVIL FREEDOMS AND RIGHTS IN THE SWEDISH CONSTITUTION OF 1974: THE PROCESS AND THE RATIONALE .................................................. 321 Carl-Gustaf Andrén VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN – CHALLENGES AT UNITED NATIONS’ CONFERENCES............................... 343 Elisabeth Gerle IMPLEMENTATION OF INTERNATIONAL CONVENTIONS AS A SOCIO-LEGAL ENTERPRISE: EXAMPLES FROM THE CONVENTION ON THE RIGHTS OF THE CHILD ...................................................................... 375 Håkan Hydén LIST OF CONTRIBUTORS .................................................................................. 393 vi

INTRODUCTION This book is in honour of Professor Göran Melander, one of the founders of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI), in Lund, Sweden, an Institute in which Göran Melander served as its first director and subsequently as the Chairman of the Board of Directors. The point of departure and the fundament for Melander was education and on this basis the Institute developed its primary role as an educator. As a tribute to Melander’s belief and commitment to the dynamics of education in human rights law, a number of colleagues and friends associated with various stages of his professional career have contributed to this volume under the heading HUMAN RIGHTS LAW: FROM DISSEMINATION TO APPLICATION. It is foremost between the continuum from dissemination to application of international human rights standards that Melander’s contributions are most noted. The spectrum from dissemination to application has become the hallmark of the Institute and this introduction will proceed by introducing the many contributors and their topics as illustrations of facets of Melander’s contribution – from dissemination to application of human rights law. At a stage where Melander has decided to retire from the Institute, this publication seeks to acknowledge the fundamental contribution to the development of the Institute and its various activities at home and abroad. Melander, in many ways a visionary, realized already in the early 80’s that a way to strengthen human rights and humanitarian law was through establishing an academic human rights institution. Melander is also a man of action: an independent institute, honoring the deeds of the Swedish diplomat Raoul Wallenberg, was set up at Lund University under his directorship in 1984. Under Melander’s guidance the Institute has developed and maintained a high international profile; enhanced by strategic international cooperation. The importance of the person Raoul Wallenberg and his deeds remains inspiring, not only through the name of the RWI but also in research as the contribution to this volume in one of the chapters, by Associate Professor Gregor Noll, writing about protective passports. Melander served for fifteen years, as Director of the Institute under the active chairmanship of initially Gunnar Lagergren, then judge of the European Court of Human Rights in Strasbourg, and former Marshal of the Realm. Professor CarlGustaf Andrén, former Chancellor of the Swedish universities who contributes here with an article on introduction of human rights into the Swedish Constitution, became the second chairman of RWI. Subsequently, Melander himself served as the third chairman, remaining active and involved in daily activities of the Institute but surrendering his directorship. As Melander now is withdrawing also from the Board of Directors, he is replaced as chairman by Hans Corell, former United Nations Under-Secretary-General for Legal Affairs. Apart from the RWI, human rights institutions were also set up around that time by colleagues of Melander in the neighboring Nordic countries. The human rights institute in Norway was for many years lead by Professor Asbjørn Eide who contributes the first chapter of this book. Professor Lauri Hannikainen who also has vii

INTRODUCTION written a chapter, is another of the Nordic human rights colleagues. Other colleagues of Melander beyond the Nordic countries and closer to home who contributes to this volume are Professor Voijin Dimitrijevic of Belgrade, Professor Ove Bring of Stockholm and Professor Håkan Hydén in Lund. Within the extensive Nordic human rights cooperation, Melander was also heavily engaged in the development of a Nordic initiative, formally known as the ‘Fundamental Standards of Humanity’ or more commonly the ‘Turku Declaration’.1 Bridging gaps between protection of rights in humanitarian law and human rights law, the Declaration establishes common standards for protection irrespective of peace or war. This nexus of spheres of law, along with that of refugee law, is among the focal interests of Melander’s, tying together different but inter-linked concepts for the sake of better rights protection. David Lewis deals with one of these spheres, namely humanitarian law. Bring’s paper discusses more generally these areas, and in particular the ways in which the early international law scholar Hugo Grotius worked with issues that were to become central at this very nexus. Bring highlights the fact that the roots of human rights law was not solely European, an approach to human rights law that very much is in line with the teaching of Melander: emphasizing the universal character of human rights law. A number of the essays to this compilation moreover deal with refugee law, the area of law to which Melander devoted most of his research, including his doctoral dissertation, entitled “Flyktingar och asyl” Professor Michael Bogdan writes about treatment of refugees and other foreigners in Sweden in a private international law perspective. Brian Gorlick and Robin Lööf analyses critically asylum polices and practices in the Nordic countries. Similarly, Hannikainen provides an exposé of asylum seekers in Austria. Another paper on refugee law is that of Noll who places treatment of refugees in a contemporary European context. Noll originally wrote his doctoral dissertation on refugee law under the supervision of Melander. Other co-authors to this book, includes a number of former students of Melander such as David Lewis. Both Arthur Diakité and Jonas Grimheden, also former students emphasize the importance of human rights education not only in development cooperation abroad but also in Sweden. Herdis Thorgeirsdottir analyses the central but disputed concept of freedom of opinion. These contributions illustrate continuation of academic education and research initiated by Melander. Academic education has always been central in Melander’s work, not the least development of master programs in human rights law. One of the first such master programs in Europe was established at the Faculty of Law at Lund University, where Melander held the chair of public international and human rights law until recently. The program continues to be run jointly with the RWI. Experiences from Lund in this regard has also been very valid when it comes to support to education in human rights law in development cooperation context, namely Swedish support through the RWI to development of similar programs in South Africa, Thailand, and PR China. Melander was instrumental for this development and in particular engaged in the 1

U.N. Doc. E/CN.4/1995/116

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INTRODUCTION development of the program at in Bangkok, contributions that were recognized in the form of awarding Melander an honorary doctorate from Mahidol University. Yet another example of Melander’s interest in academic education is his engagement in the development of a cross-disciplinary human rights program at Lund University. The importance placed on human rights education is illustrated in the chapter by Eide, dealing with education, the right to education, and human rights education through a minority rights lens. In the continuum from dissemination to application, Melander stressed not only education but he also contributed to debate on human rights and related issues in media and is an active participant in various inter-governmental, governmental and non-governmental settings with more practical perspectives. One such example is Melander’s close involvement in the development of the informal Asia-Europe (ASEM) human rights dialogue series, bringing together representatives from academia, diplomacy, and NGOs from both Asia and Europe. Other ‘bridgebuilding’ activities where Melander has taken a great interest includes various forms of exchange with China, Turkey, the Middle East, and Africa. The application of human rights finally, has continuously been important in the work of Melander. Being a man of action, he takes ideas from theory to practice very quickly, steering projects of the RWI into many new countries and settings. A prominent example was the very early and topical involvement in China. Showing strategic foresight, Melander engaged with academia in and the government of China in promotion of human rights during challenging political circumstances. Associate Professor Shiyan Sun from Beijing, who has served as a visiting professor at RWI provides a detailed account of RWI activities in China as they have developed over the years. Ambassador Baodong Li complements this description by elaborating on the continued development of human rights education in China. The modus operandi of RWI in China has been applied also in many other countries successfully. A major feature of RWI activities has always been training and in particular focusing on representatives of the administration of justice, such as judges, prosecutors, and police. The chapter written by Ralph Crawshaw, a long time resource person in RWI training activities in various countries gives insight into human rights education for police. A final case in point of Melander’s more applied forms of human rights advocacy is his involvement with the international human rights monitoring mechanisms, in particular the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) where he served as a member from 20012004 (often referred to as Mrs. Melander being initially the only male member). Melander took initiatives to reform practices and procedures that improved the working methods of the Committee. Associate Professor Elisabeth Gerle contributes with a paper on human rights for women and the challenges as discussed in various UN fora. Hydén’s essay deals with another of the major UN human rights conventions, that on the rights of the child, looking into implementation challenges. Another international response to human rights atrocities is the establishment of the International Criminal Tribunal for Rwanda. In his paper, Lennart Aspegren, former ix

INTRODUCTION Judge of the Tribunal analysis the disastrous events of 1994 Rwanda and international response before and after the genocide. The subsequently established International Criminal Court and its procedure for the protection of human rights is the topic of the chapter by Dimitrijevic and Milanovic. The contribution written by Professor Cees Flinterman and Stacey Nitchov – Flinterman became a fellow member of Melander on the CEDAW-Committee – is dealing with a topic that has remained pivotal through out the career of Melander, that of human rights education. The chapters mentioned above have taken us from some theoretical approaches to examples of various forms of more practical application of human rights law sorted under the two headings of ‘Human Rights Education’ and ‘Human Rights Applied’. The initiative to solicit contributions to this compilation of essays as well as much of the work of getting it into its present form was taken and done by the present Director, Gudmundur Alfredsson, who is on leave from the Institute when this book is being finalized. On a more personal note, Göran is known with the staff as a generous, supportive, and considerate colleague. Göran’s spirit has always been characterized by flexibility, pragmatism, readiness to see windows of opportunities, and with an ability to stay clear of bureaucratic hurdles. These valuable features of Göran Melander continue to make the Institute a great place to work and to make its task successful: educating in and applying international human rights standards.

Jonas Grimheden and Rolf Ring

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PART I HUMAN RIGHTS EDUCATION

GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION: MULTICULTURAL OR INTERCULTURAL – OR A COMBINATION OF THE TWO? Asbjørn Eide 1. Introduction Göran Melander has been at the forefront of the promotion of human rights education, with a world-wide impact through the creation and subsequently his role in the development of the Raoul Wallenberg Institute. There is hardly any international human rights centre with a more global educational role, which has been achieved not only through the Master and other RWI courses in Lund but even more through the human rights training carried out in all corners of the world. It is a particular pleasure, therefore, to devote these pagers as recognition of the momentous achievements of the Raoul Wallenberg institute initiated by Göran Melander. I have chosen as a topic an issue with which I have been faced for a long time, but for which there are no simple answers. The choice of best policies regarding group accommodation in a functioning civil society has been a concern since the time I was preparing the study on ‘Possible ways and means of facilitating the peaceful and constructive solution to problems involving minorities’ for the United Nations.1 It has since surfaced on several occasions: While I was Chairman of the UN Working Group on Minorities (1995–2004) and again now when I am the President of the Council of Europe Advisory Committee on the Framework Convention on National Minorities (from 2004). The Sub-Commission, whose full name then was ‘the Sub-Commission on Prevention of Discrimination and Protection of Minorities’, decided in 1989 to engage in an examination of national experience regarding peaceful and constructive solutions of problems involving minorities, and appointed me to prepare a study on that matter. I have elsewhere discussed the long and often futile efforts of the SubCommission to deal in a meaningful way with the minority issues2 but the developments around 1988–1989 made it essential to come to grips with the problems. In the enabling resolution, the Sub-Commission noted that that many of the situations brought to its attention involved questions of human rights problems related to assimilation, integration or autonomy of minorities. The Sub-Commission reaffirmed, in accordance with the Charter, the basic importance of sovereign 1

UN Doc. (E/CN.4/Sub.2/1993/4) and additions 1-4. Asbjørn Eide, The non-inclusion of minority rights’ in Alfredsson and Eide: The Universal Declaration of Human Rights – a Common Standard of Achievement (Nijhoff Publishers, 1999). 2

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ASBJØRN EIDE equality and the inviolability of the national unity and territorial integrity of States, but within the limits of those principles it had decided to embark upon an examination of possible ways and means to facilitate the peaceful and constructive resolution of situations involving racial, national, religious and linguistic minorities. In the pursuit of the study, I underlined the need to place the recommendations safely within principles of universal human rights law, concerned above all with the equality and dignity of every human being. Human rights allow for, but set limits to group rights both of majorities and of minorities. Minority rights are important to make explicit the limits on the power of majority groups, even when acting democratically. Minority rights must, however, never be construed in ways which destroy the basic principles of equality, nor should majorities exclude the minorities from equal treatment. I argued therefore that the state should function as a common home for all ethnic, religious and linguistic groups residing there, enjoying equality in fact, none of them being second-class citizens. Apartheid in South Africa has demonstrated how an intolerant and intransigent minority can prevent the enjoyment of equality by members of the majority. Nearly all States are multi-ethnic or multi-religious and will remain so. If anything, national societies will become more, not less, pluralistic, owing to the impact of human rights and democracy. The solution to minority problems cannot and should not be to establish for ethnic groups their own “purified” State or miniStates, as sought in the then ongoing destruction of Bosnia-Herzegovina and other places. Noting that the Sub-Commission on Prevention of Discrimination and Protection of Minorities was established to find ways in which States and the international community could solve the dual task of preventing discrimination – and thereby upholding the equality of every human being – and of protecting minorities so that every member of any group can uphold his or her identity as far as compatible with human rights, the task was to confront the entrepreneurs of hatred and xenophobia and to indicate ways in which equality could be reconciled with the maintenance of separate identities within the framework of territorial integrity and political stability. During the period when the study was prepared- from 1990 to 1993- the world witnessed an extremely tumultuous period in which ethnic and religious conflicts appeared to be graver than had been experienced for decades. The ethnocentric forces released during those years became irrational in their hatred and resorted to extreme barbarism. The processes of ethnic cleansing and territorial ‘purity’ constituted a direct challenge to the foundation of human rights, the principle that all human beings are born free and equal in dignity and rights and that no discrimination shall take place on grounds, of race, colour, ethnic or national origin. It was difficult at the time I presented the final report (1993) to predict when the waves of violence would subside. In fact it got worse for some time: The siege of Sarajevo was still on, the Dayton agreements which ended the war in Bosnia were not adopted until 1995- and when they were finally adopted they accommodated the result of intransigence rather than providing a constructive solution. The genocide in 4

GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION Rwanda was still to come, and the NATO-led war over Kosovo was still several years in the future. I argued in 1993 that two urgent tasks faced the international community. One was to develop the capacity for prevention, peacekeeping, and peace enforcement. Recommendations on ways to strengthen the United Nations capacity in this field had been presented by the Secretary-General in his ‘Agenda for peace’, 1992, but not much had happened in terms of follow-up. Since then further work has gone on, including the important study on ‘the duty to protect’ at the initiative of a former Canadian Minister of Foreign Affairs,3 and this was included in a broad range of reform proposals presented by the UN Secretary-General, Kofi Annan, on 21 March 2005.4 Clearly much still needs to be done in this area. Part of the task, I argued, was to encourage States, on the basis of international law, to find appropriate accommodations between the different ethnic, religious and linguistic groups in society, to the end that they all feel at home and none consider themselves to be a second class resident or citizen. That was the main focus of my study. The then ongoing group conflicts, which were tearing apart or destabilizing sovereign States in several parts of the world and bringing massive human rights violations in their wake, should not be allowed to overshadow the fact that in most countries different ethnic and religious groups co-exist, and do so quite peacefully. Much hope and inspiration could still be derived from the constructive developments that have taken place in so many parts of the world, where the different groups have accommodated each other, live peacefully side by side, preserve their own identities and yet adapt to modern and new conditions, and develop bonds of inter-marriage and reciprocal understanding. Somewhat optimistically, I stated in my final report in 1993 that the material collected for the study indicated that there is a growing willingness by States in most continents to accommodate legitimate minority concerns. In response, members of many minority groups have become less militant and have engaged in constructive dialogue with the government and the other ethnic groups. I expressed the hope that in the not too distant future the bridge-builders on both sides will replace the hardline xenophobes and ethno-nationalists, whether they belong to the majorities or the minorities. I recognized that it would take time, and that the struggle would be difficult. Much work had to be done to establish conditions under which group conflicts can be peacefully handled with respect for the territorial integrity of sovereign States. Indeed, much work was carried out in the succeeding years. In 1992 the OSCE established the Office of the High Commissioner on National Minorities, and its first incumbent who served for more than ten years (Max van der Stoel) performed an admirable work in defusing tensions and in improving the lot of minorities in 3

‘The responsibility to protect’, Report of the International Commission on Intervention and State Sovereignty, December 21. Published by the International Development Research Centre, P.O. Box 8500, Ottawa, ON, Canada, . 4 In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, UN Doc. (A/59/2005).

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ASBJØRN EIDE conflict-prone areas.5 In 1995 the United Nations itself established its Working Group on Minorities, which I had the honour to chair for its first ten years, and thereby opened a forum facilitating dialogue between minorities, governments and the international community. In 1994 the Council of Europe adopted the Framework Convention on National Minorities which envisaged the establishment of an Advisory Committee to monitor the obligations contained therein when the convention entered into force, which it did in 1998.6 Clearly, a dozen years after the completion of the study, things are settling down. States have become much more willing to deal constructively with minorities, and minorities have become less strident now that they have democratic options and international standards to refer to. Yet there are also new developments which impact on the choices. At the European level, the process towards expansion of the European Union and generally greater mobility and interaction across the continent has caused a strong upsurge in cosmopolitanism. For some members both of minorities and majorities, aspirations have transcended or even replaced their identification with the ethnic minority or the national majority. A cosmopolitan mood is affecting parts of the population, in particular those with advanced education. To them, the purposes for which people fought and died only a decade ago appear to be less important than the opportunities arising from newly emerging international networks and mobility. Other parts of the population are still strongly attached to their group identity, both for material and ideal reasons, but the intensity of conflict has been much reduced. 2. On Constructive Group Accommodation 2.1. Criteria for Group Accommodation In my 1993 study I recommended that the outcome of constructive accommodation sought should be such that all parts of its resident population could fully consider the State to be the common home for everyone under conditions of equality, with separate group identities being preserved for those who want it, under conditions making it possible to develop those identities. Neither majorities nor minorities should be entitled to assert their identity in ways which deny the possibility for others to do the same, or which lead to discrimination against others in the common domain. A primary role of any State should be to facilitate the equitable sharing of the economic wealth and social benefits of the nation as a whole. Priority in minority protection should be given to members of groups which are truly vulnerable, subject to discrimination and marginalization by the majority. 5

On his work, see Walter A. Kemp, Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities (Kluwer Law International, The Hague/ London/ Boston). 6 See ‘Filling the Frame: Five years of monitoring the Framework Convention for the Protection of National Minorities’, Council of Europe Publishing, 2004.

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GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION 2.2. The State and the Nation For the state to be the common home of all groups living there, it should seek to be as ethnically impartial as possible under the given circumstances. This requires a reflection on the relation between the state and the ‘nation’, while taking into account the various meanings of ‘nation’. It can be useful to distinguish between ‘civic nations’ and ‘ethno-nations’. In English parlance and widespread international practice, ‘nation’ is usually understood to describe the aggregate, permanent population of a sovereign State, held together by common rules of law. It is a technical and legal concept, linked to the notion of citizenship in its legal sense. This is the understanding used in terms such as ‘the United Nations’ and ‘international law’. As an example: Article 15 of the Universal Declaration of Human Rights, stating that everyone has the right to a nationality, means that everyone has the right to hold the citizenship of a State, which makes her or him a part of the nation. It carries no necessary implication of solidarity among the different groups within society. Even when they are antagonistic towards each other they are part of the nation simply by being citizens thereof. In a nation there should ideally be a civil society, consisting of persons with links across religious and ethnic groups who share concerns about issues such as due process and good governance, freedom of expression and assembly irrespective of language or faith, issues of social policies, job opportunities based solely on merit, and other matters of common concern. When the term ‘nation’ is used in the sense of ‘ethno-nation’ it refers to a group inside the country or sometimes straddling the territories of two or more States, of persons who consider themselves to share certain common traditions and characteristics. Of particular importance are a common language or a common religion, and a perceived common history. It is to some extent an imagined community, a reconstruction of history to fit present aspirations, but it does involve some objective past linkages. The ethnic identity may be held with varying degrees of conviction at different times; membership of the group may in some conditions or in some periods be considered important and in others be considered much less important. It is a political and to some extent a subjective concept. Clearly not all ethnic groups consider themselves an ‘ethno-nation’; something more than ethnic identity is implied: a particularly strong feeling of cohesiveness, a common destiny and in particular an implied or explicit desire for political control over its own fate. The most serious group conflicts arise when one or several of the ethnic groups within a multi-ethnic State seek to make the civic nation into an ethnic nation. This can lead to discrimination, hatred, violence and ethnic cleansing as vividly demonstrated in recent conflicts, or to forced assimilation where members of minorities are left no other choice but to shed their characteristics and to melt into the hegemonic ethno-nation. 7

ASBJØRN EIDE Constructive accommodation would require confidence-building measures in order to increase cooperation among the different ethnic groups forming the nation while providing the necessary space for them to maintain what to them is essential for their identity but without blocking the emergence of a crosscutting civil society. 2.3. ‘A common home for all its residents on a basis of equality’ The study emphasized the overriding concern with individual human rights enjoyed without discrimination on any ground, including race or ethnicity. It noted that a large part of the minority problems brought to the attention of international bodies were due to a discriminatory approach towards members of minorities. Under Article 2 of the International Covenant on Civil and Political Rights (ICCPR), States have undertaken to respect and to ensure to all individuals within its territory the rights contained in the Covenant. The obligations are both negative and positive in nature. States parties must not only themselves refrain from violation of the rights guaranteed in the Covenant, but are obliged also to apply, if the need arises, positive measures and to protect the enjoyment of the rights against other, private parties. To do so, the State must adopt the necessary legislative, administrative and other measures to achieve that aim. Under Article 2 of the International Covenant on Economic. Social and Cultural Rights (ICESCR), States have undertaken to take steps using the maximum of available resources to progressively achieve the full realization of the rights. This imposes an obligation to move as expeditiously as possible towards that goal. States must immediately identify the vulnerable groups and set benchmarks for the progressive realization, step by step, of the rights contained in that Covenant for everyone under its jurisdiction. As pointed out by the Committee on Economic, Social and Cultural Rights in several of its general comments, the rights contained in the Covenant impose three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide the rights listed there. While the rights in the Universal Declaration and the Covenants are formulated as the rights of individuals, the respect for and protection of those rights go a long way in guaranteeing minority protection. In addition, some of the rights are mainly enjoyed in community with others of the same group. We now turn to the implications of this for minority protection. The principle of non-discrimination is of particular importance in this regard. It is of general applicability, elaborated in many human rights instruments and set out also in the UN Minority Declaration (Article 4(1)), and the Council of Europe Framework Convention (Article 4) requiring States to take measures where required to ensure that persons belonging to minorities may exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law.

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GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION The first requirement of States in regard to minorities is to respect and protect their existence. This includes their physical existence, their continued existence in the territories on which the minorities live and, with some qualifications, also the continued access to the material resources required to continue their existence in those territories. They shall neither be physically excluded from the territory nor be excluded from access to the resources required for their livelihood. Protection of their right to existence is implicit in universal integrity rights contained in the Universal Declaration and the corresponding provisions in relevant conventions, starting with the right to life, freedom from torture and cruel and inhuman treatment, and freedom of movement and residence. In the most serious cases, failure to respect and protect the physical existence would fall under the crime of genocide and the Rome Statute of the International Criminal Court. Persons belonging to minorities are entitled, in the same way as other members of society, to set up any association they may wish. Persons belonging to minorities also have an incontestable right to use their own language in relation to any willing listener or reader and in their commercial activities. This follows from the freedom of expression and information which includes a right to choose one’s language of expression and information. The freedom of religion is also a universal human right and can therefore be used by persons belonging to any religious group to practice their religion. States are under an obligation to respect these freedoms and to protect those who practice them against harassment and violence. Limitations on the freedom of association, expression and information, or on religious practice, can only be limited under the grounds recognized in the international instruments. Such limitations must be prescribed by law and be necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Persons belonging to minorities are also entitled, without discrimination, to enjoy economic and social rights: the right to have access to work freely chosen, rights in work, social security, right to an adequate standard of living, right to the highest attainable standards of health, right to education and the enjoyment of cultural rights. 2.4. Equal Protection by the Law States are obliged to respect and to protect the universal human rights discussed above. It is important to recognize and ensure that everyone has a right to an effective remedy against violations of those rights. Under Article 2(3) of the ICCPR, each State party to the Covenant has undertaken to ensure that any person (thus also those belonging to minorities) whose rights have been violated has an effective remedy and to ensure that any person claiming such a remedy shall have her or his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system, and to ensure that the competent authorities enforce such remedies when granted. Furthermore, under Article 26 of the ICCPR, and Article 7 of the Universal 9

ASBJØRN EIDE Declaration on Human Rights (UDHR), all persons are entitled without discrimination to equal protection of the law. The experience of the UN Working Group on Minorities has shown that many of the issues brought to its attention have arisen where there has been a lack of equal and adequate protection. A major problem has been unequal treatment by law enforcement officials at various levels, sometimes with the connivance of the central authorities, at other times owing to a lack of sufficient efforts by the central authorities to intervene to ensure equal protection by the law enforcement agencies. When the authorities, through negligence or outright, deliberate refusal, fail to provide equal protection, there is a serious risk that some members of minority groups may take the law in their own hands, starting to retaliate against real or alleged violations committed by members of the majority. Under Article 2(2) of the ICESCR, State parties have undertaken to guarantee that the economic, social and cultural rights will be exercised without discrimination. Many cases have been brought to the attention of the Working Group of minorities facing much greater difficulties than members of majorities in enjoying their economic, social and cultural rights. When there is serious inequality in the enjoyment of those rights, the affected minorities may loose their belief in the legitimacy and responsiveness of the Government and start to demand greater selfcontrol, autonomy, or outright secession. 2.5. ‘With separate group identities being preserved for those who want it under conditions making it possible to develop those identities’ This is where minority rights make their full entrance in human rights law. All the previous requirements can be fulfilled by the implementation, in good faith, of the rights set out in the core instruments such as the Universal Declaration of Human Rights, but the preservation of separate group identities and making it possible to develop those identities required additional rights now set out in the minority rights instruments. Rights in the area of language and education are among the most important in this respect. What kind of measures should be adopted depends, however, on the nature and dynamics of the each particular majority-minority relation, and these differ considerably from place to place and from time to time. 3. On Minority-Majority Conflicts and Processes 3.1 Majority Dominance: Three Types of Majority Policies Conflicts are often attributable to majority dominance policies. • One type of conflict frequently encountered is between a dominant centre and a peripheral group. Typical, but not the only one, is the situation of indigenous peoples: Groups whose traditional way of life is challenged by a dominant centre which exploits the resource base of the vulnerable group and in the process also destroys the capacity of the peripheral group to reproduce and to develop its own culture, including language and religion. 10

GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION •

•

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A second category of situations arises as a result of systemic discrimination against persons merely because of their colour or race, or when it is directed against recent immigrants whose language, ethnic culture or religion differs from the established inhabitants of the state. It happens that a minority is able to establish a dominant position and to systematically discriminate against the others, through imposing a division among them into different and separate groups and nurturing notions of separate identities for each group. This was what white nationalists in South Africa managed to do for a considerable period of time under the name of apartheid. A third situation are those where a majority seeks to impose its ethnic or religious imprint on the nation as a whole through assimilation, denying the minorities sufficient possibilities to maintain and to develop their own ethnic or religious identity as manifested in their language, their religion, their cultural practices and traditions, and their collective memory as recorded in their own version of their history. Sometimes it is religion which is the framework for hegemonic control rather than ethnicity (India with Hindu nationalism, Pakistan or Sudan with Islamic nationalism); in many settings, religion and identity become closely intertwined (Serbia with Orthodox Christianity, Bosniacs with Islam as part of their identity, Croats with Catholicism as a major source of identity) A fourth situation consists of a combination of assimilation and exclusion: Assimilation of those who are assimilable and exclusion of those who are not, either because they resist or because they are not wanted within the majority society.

3.2. ‘Another nation’ or people? The tug of self-determination The conflict does not always stem from the majority; it might also be initiated by a minority. When an ethnic group which is numerically a minority considers itself to be a separate ‘nation’ in its ethnic sense, or a part of a separate nation, it sometimes refuses to accept a common ground and seeks instead to secede in full or in part from the authority of the government of the existing state under the claim of being a separate people and therefore entitled to self-determination. Here also, several different versions exist. Some of them are really not minority- majority situations. One version, now almost extinguished, is traditional colonialism. In these cases the population of the colonial territory was never integrated with the population of the metropolitan territory of the colonizer. The colonial territory and/or its population (or part of it) was controlled and managed in the interest of the colonizer, and when awareness of rights of self-determination and democracy became sufficiently widespread, colonialism could no longer be sustained. The United Nations served as the midwife of extensive decolonization – probably one of its greatest achievements – but the right-holder of self-determination was understood to

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ASBJØRN EIDE be the population as a whole of the territory demarcated by the colonizer, under the application of the principle of uti possidetis juris.7 A second version was the dissolution of federations that had been built explicitly or implicitly around the notion of ‘titular nations’ – Czechoslovakia, the Soviet Union, and the former Yugoslavia. When the ideology of Communism no longer held sufficient appeal (and, in the case of Czechoslovakia, the threat of Soviet intervention no longer existed), there was no longer sufficient common bonds to keep these federations together. With the exception of former Yugoslavia, the dissolution itself into the different union republics took place without bloodshed, but not without problems which still to some extent linger on. The major problem arising was the situation internal to some of the republics and the bonds that existed across the borders. The titular nations were not alone in the union republics, sizeable groups belonging to the dominant group in other republics found themselves stranded in states now submerged in a state with an ethno-nationalist hegemonic group different from their own, and no longer with the balancing or dominating role of the federal authority. In the early years where the future political architecture was still unsettled, this led to extensive violence and war, sometimes with temporary solutions which cannot be sustained in the long run: The uneasy balance in Bosnia-Herzegovina between three ‘constituent peoples’ under the Dayton agreement, the still unsettled Kosovo situation, and the situation of Nagorno Karabakh which nominally is part of Azerbaijan but in reality a selfdetermining entity in close association with Armenia. A somewhat comparable situation exists in Northern Cyprus, though its history is quite different. Even more complex is the situation in Georgia, where only two-thirds of the population are ethnically Georgians, and where several of the other ethnic groups seek a high degree of autonomy or outright secession. In the cases of Abkhazia and South Ossetia, the nationalists are supported by the Russian Federation, for geopolitical reasons, in their quest for independence. In Moldova, the breakaway region of Transdniestr is similarly relying on support from the Russian federation. One problem arising from the breakup of federations is the loss of identity and sometimes of citizenship of those whose main identity was connected to the federation as such, not to its separate republics. This is particularly hard for mixed marriages and their children. Those who considered themselves as Yugoslavs are now left to make a choice between the different ethnic identities, be it Serbian, Croat, Bosniacs or other, and in mixed marriages this may be very painful and conflictual.

7 The principle emerged in international law during decolonisation of Latin American territories in the 19th century. Its primary aim was and is to secure respect for the territorial boundaries at the moment when independence is achieved. “Uti possidetis, as a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers, is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs.” See Frontier Dispute (Burkina Faso/Republic of Mali) (1983-1986) I.C.J. Reports 1986, p. 554.

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GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION Yet another problem may be that the lingua franca of the federation is no longer the valid language in the new republics. Those who have traditionally used Russian, not necessarily because they are ethnically Russian but because it was the dominant language in the Soviet Union, now have to learn the new or restored national language of the successor or resumed state. A special case within the Russian Federation is that of the Muslims of Chechnya, who for nearly two centuries have resisted their inclusion first in the Tsarist empire, then the Soviet Union and now the Russian Federation, and who have had to pay very dearly for their opposition both under the Tsar, Stalin and now Putin. The post-colonial states of the South have had and still have their own violent conflicts over territory and borders. The first major breakup was the Indian part of the British Empire, first with the division into India and Pakistan, then the secession of Bangladesh from Pakistan, the ongoing conflict over Kashmir, and lowerintensity conflicts in several parts both of India and of Pakistan. Indonesia has several open or latent conflicts of secession; so does the Phillipines. In Africa, the first major post-colonial war was over the failed quest for independence by Biafra, culminating in 1969; the successful secession by Eritrea from its enforced separation with Ethiopia; and the ongoing conflicts in Sudan between the Islamic North and the Christian or animist South which were artificially joined together by the coloniser. 3.3. Social Processes of Integration and Disintegration Traditionally, a prominent concern for most governments has been the assurance of the unity of the State. This, however, may take many forms: (a) assimilation or fusion, i.e. absorbing minorities by a hegemonic majority or the construction of an altogether new identity through the combination of several immigrant groups, as in the Americas; (b) social integration, which means integration into a common domain with regard to jobs, freedom of movement and residence, and a common legal system; or (c) regulated coexistence, which takes the form either of territorial or cultural autonomy or a combination of both. School and language are major instruments of government control and government policy. Many societies go through occasional processes of change, towards increased integration which is later reversed into a period of partial or deeper disintegration, and sometimes back again. The processes in both directions may be of a cultural nature or territorial, or a combination of both. A process of integration may be partial or complete. A fully completed integration would create an entirely homogenous society. The main aspects of homogenisation relate to culture, language and religion, and in regard to all of these, the educational system is both a reflection and a cause of these processes. Homogenisation may take the form of fusion or assimilation. ‘Fusion’, in theory, is different from assimilation. It consists of a process where the combination of two or more cultures, on a basis of equality, produces a new and different culture. It corresponds to the more popular notion of ‘melting pot’ and is seen as an 13

ASBJØRN EIDE essentially voluntary process occurring mainly in immigrant settler societies, where the immigrants come from different nationalities and ethnic groups to a new future in a new homeland. How ‘voluntary’ it is depends also on the resources made available for those who want to maintain some aspects of their original identity. The indigenous peoples who live in the so-called immigrant societies and were there before the arrival of the immigrants are rarely participants and certainly not on an equal level in the process of fusion. ‘Assimilation’ is understood as a process by which homogeneity is obtained on the basis of a dominant culture, to which other groups are expected to conform by shedding their own cultural characteristics. The antithesis to assimilation or fusion is exclusion. One way of making societies homogeneous is to exclude those who are different, those who belong to different ethnic or religious groups. The general term used today for such policies is ‘ethnic cleansing’, which is pursued in more or less brutal ways. One approach to exclusion is to deny citizenship, at the time of independence or restored independence, to long-standing resident members of another ethnic group, or make it difficult for them to obtain citizenship. 3.3.1. ‘Integration’ Integration is often understood as a process which differs from homogenisation: While separate elements do combine into a political and economic unity, each group retains its identity to the extent that it does not threaten the over-arching unity. Two versions of integration should be examined: Egalitarian integration and integration based on discrimination. The reasons why the process is one of integration rather than homogenisation or assimilation are usually that the minority rights groups seek to protect their group cohesiveness and/ or what for them are significant parts of their culture. The specific level of integration existing at any particular point of time within a country may therefore be the product of a balance between competing policies – those of the majority for fuller integration and those of the minority, or its leaders, for the protection of their group culture, tradition and language 3.3.2. ‘Disintegration’ processes National societies may also experience trends in the opposite direction: from a higher level of integration or fusion towards partial disintegration or fission. It can happen when the legitimacy and influence of the central authority declines, and/ or when the minority and its group self-awareness becomes stronger. The processes may be observed at the cultural or the territorial level, or both. The increasing emphasis on ethnic identity manifests itself mainly in an articulation of separate cultural activities, which implies a process of gradual separation. Significant variations can be observed, from modest manifestations of cultural traditions on particular days of ethnic festivity, to the demands for almost complete cultural autonomy, including control over educational institutions from kindergarten to university. 14

GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION 4. Education as a Human Right: Its Scope and Functions Article 26 of the Universal Declaration establishes the right to free education, compulsory in the elementary stages, and gave some indications of the content and purpose of education. It is further elaborated in Article 13 of the Covenant on Economic, Social and Cultural Rights, but the most detailed provisions are found in Article 29(1) of the Convention on the Rights of the Child, which requires that education should be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the national environment. It is important to take all these five elements into consideration in the elaboration of educational content for different groups in society. 5. On Education in Plural Societies 5.1. The Requirement of Non-Discrimination “The right to education must also be accorded without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”8 Members of minorities have the same basic right to education as everyone else in society and must not be disadvantaged in this respect. Similar non-discrimination provisions are found in most human rights instruments. The International Convention on the Elimination of All Forms of Racial Discrimination includes “the right to education and training” among the rights to be protected against discrimination. The UNESCO Convention Against Discrimination in Education, 1960, defines as discrimination any “distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose of effect of impairing equality of treatment in education… including depriving person or group of persons access to education or limiting them to education of an inferior standard”. 8

Universal Declaration of Human Rights, Article 2.

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ASBJØRN EIDE Taking into account the negative experience in the United States with ‘separate but equal’ educational institutions, the UNESCO convention takes an understandable reserve to separate educational institutions, but provides in Article 2 that some situations shall not be deemed to constitute discrimination, including the establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil’s parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level (UNESCO Convention Article 2(b)). Furthermore, in Article 5(1)(b) of the UNESCO Convention requires states to respect the right of parents to choose educational institutions other than those maintained by the state, provided such institutions comply with the necessary educational requirements set by the state (see further below). 5.2. On multicultural and intercultural education, on separation and integration Put somewhat simplistically, multicultural education requires educational policies and practices which meet the separate educational needs of groups in society which belong to different cultural traditions, while intercultural education involves educational policies and practices by which the members of different cultures, whether in a majority or minority position, learn to interact constructively with each other. In an important recent contribution, Tom Hadden discussed the choices between integration and separation regarding minority rights where the issue of education plays a central place. 9 The choice is rarely between full separation and full integration. Many combinations are possible, and different choices may be appropriate under different circumstances. At one extreme is the establishment of entirely separate schools with entirely different curricula and different languages of instruction; at the other hand there is a complete uniformity of the educational content and common schools. An index might be created showing the degree of separation/ integration, but it would hardly give much help in the specific circumstances because the needs vary greatly. 5.3. Meeting the separate educational needs of minorities? A frequently voiced demand by minorities is to have their own educational institutions which can be geared to their own culture and tradition. There is no such right in general in international human rights law or in the specific human rights instruments, but there is a general right under human rights law to set up private

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Tom Hadden, ‘Integration and Separation: Legal and Political Choices in Implementing Minority Rights’, in Nazila Ghanea and Alexandra Xanthaki (eds.), Minorities, Peoples and Self-determination (Martinus Nijhoff Publishers, Leiden, 2005).

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GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION educational institutions (UDHR Article 25, ICESCR Article 13(4), the UNESCO Convention against Discrimination in Education Article 5(1)(b)). This right can also be used by persons belonging to national minorities to set up their own private institutions. Under the European Framework Convention on National Minorities, in Article 13 the states Parties have undertaken to recognize the right of persons belonging to national minorities to set up and manage their own private educational and training establishments, but the private institutions must conform to the basic requirements of education. The state is obliged, however, to ensure that all the requirements to the content of education set out in CRC Article 29(1) (listed above) are met also by the private educational institutions. This follows from Article 29(2), which recognizes the right of individuals and bodies to set up private educational institutions but only “subject to the observance of the principles set out in paragraph 1 of this Article”. This means that the education must include the common elements such as mathematic, physics, life sciences etc., and also that it must ensure human rights education as well as knowledge of the national culture as well as the minority culture, and ensure the spirit of tolerance as set out in Article 21(1)(d). The exercise of the right to set up their own private educational institutions does not entail any financial obligation for the Party concerned, but neither does it exclude the possibility of such a contribution. In the area of language education, the minorities have somewhat stronger rights. Under the Council of Europe Framework Convention (Article 14), States have recognized the right of every person belonging to a national minority to learn his or her minority language. Under Article 14(2), with regard to “areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language”. The obligation to endeavour to ensure instruction of or in minority languages is subject to several conditions; in particular, there must be “sufficient demand” from persons belonging to the relevant national minorities. The wording “as far as possible” indicates that such instruction is dependent on the available resources of the Party concerned. “Sufficient demand” is not defined. Parties will have to take account of their countries’ own particular circumstances. Parties have a choice of means and arrangements in ensuring such instruction, taking their particular educational system into account. However the Advisory Committee has to assess whether their choices and arrangements are reasonable, taking the existing conditions into account. There are two alternatives: “opportunities for being taught the minority language or for receiving instruction in this language”. These have very different implications practically and theoretically. It would depend on several factors which option should ideally be chosen. One factor would be the size of the group – the larger the group, the more the need for instruction in the minority language. Another 17

ASBJØRN EIDE factor is the level of education: Education in the mother tongue should be preferred, even for smaller minorities, at preschool level and in primary school, whereas a gradual turn to instruction through the majority language would be justified. The opportunities for being taught the minority language or for receiving instruction in this language are without prejudice to the learning of the official language or the teaching in this language. Indeed, knowledge of the official language is a factor of social cohesion and integration, and State Parties will normally be fully entitled to make the learning of the official language compulsory. There are also other provisions containing guarantees relating to the possibility for national minorities to learn their mother tongue or learning in their mother tongue, such as Article 5 of the UNESCO Convention Against Discrimination in Education, Paragraph 34 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, and Article 4 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. These instruments made it possible for a group of experts, in collaboration with the Office of the High Commissioner on National Minorities of the OSCE, to develop a set of guidelines regarding the education rights of national minorities.10 The recommendations deal with measures to be taken and the use of resources, decentralisation and participation, particularly in the preparation and choice of curriculum; public and private institutions, minority education at primary and secondary levels, minority education in vocational schools, minority education at tertiary level, and curriculum development. In regard to primary and secondary education, the recommendations state that the first years of education are of pivotal importance in a child’s development. Educational research suggests that the medium of teaching at pre-school and kindergarten levels should ideally be the child’s language. Research also indicates that in primary school, the curriculum should still ideally be taught in the minority language. The minority language should be taught as a subject on a regular basis. The official State language should also be taught as a subject on a regular basis preferably by bilingual teachers who have a good understanding of the children’s cultural and linguistic background. In secondary school, a substantial part of the curriculum should be taught through the medium of the minority language. The minority language should be taught as a subject on a regular basis. The State language should also be taught as a subject on a regular basis. Throughout this period, the number of subjects taught in the State language should gradually be increased. The maintenance of the primary and secondary levels of minority language education depends on the availability of teachers trained in all disciplines in the mother tongue. Therefore, ensuing from their obligation to provide adequate opportunities for minority language education, States should provide adequate 10

The Hague Recommendations Regarding the Education Rights of National Minorities, prepared under the auspices of the Foundation on Inter-Ethnic Relations and found under the website of the OSCE High Commissioner for National Minorities, <www.osce.org/hcnm>.

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GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION facilities for the appropriate training of teachers and should facilitate access to such training. 5.4. Combination of Multicultural and Intercultural Education Article 4(4) of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities reads: “states should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole.” An almost identical formulation is found in Article 12(1) of the European Framework Convention. Similar concerns are implicit also in the International Convention on the Elimination of All Forms of Racial Discrimination (Article 7) and in the Convention on the Rights of the Child (Article 29). Experience has shown that in societies where different national, ethnic, religious or linguistic groups coexist, the culture, history and traditions of minority groups have often been neglected and the majorities are frequently ignorant of those traditions and cultures. Where there has been conflict, the minority groups’ culture, history and traditions have often been subject to distorted representations, resulting in low self-esteem within the groups and negative stereotypes towards members of the group on the part of the wider community. Racial hatred, xenophobia and intolerance sometimes take root. To avoid such circumstances, there is a need for both multicultural and intercultural education. The provisions of the UN Minority Declaration (Article 4(4)) and the European Framework Convention (Article 12) above all calls for intercultural education, by encouraging knowledge in the society as a whole of the history, tradition and culture of the minorities living there. Cultures and languages of minorities should be made accessible to the majorities as a means of encouraging interaction and conflict prevention in multi-ethnic societies. Such knowledge should be presented in a positive way in order to encourage tolerance and respect. History textbooks are particularly important in this regard. Bias in the presentation of the history and neglect of the contributions of the minority are significant causes of ethnic tension. UNESCO has concerned itself with the need to eliminate such prejudices and misrepresentations in history textbooks, but much remains to be done. The provisions quoted emphasize the complementary duty to ensure that persons belonging to minorities gain knowledge of the society as a whole. This provision should counteract tendencies towards fundamentalist or closed minority religious or ethnic groups, which can be as much affected by xenophobia and intolerance as the majorities. The overall purpose of these provisions are to ensure egalitarian integration based on non-discrimination and respect for each of the cultural, linguistic or religious groups which together form the national society. The formation of more or 19

ASBJØRN EIDE less involuntary ghettos where the different groups live in their own world without knowledge of, or tolerance for, persons belonging to the other parts of the national society would be a violation of the purpose and spirit of the Declaration and the Framework Convention. As a minimum, it is required that majorities learn about the minorities, their culture and tradition, and similarly that minorities learn about other minorities in the same society and about majorities. Intercultural education requires more, however: It requires the development of respect, mutual tolerance and co-operation. Respect and tolerance must be based on a common recognition of general human rights as the basic framework applicable to all and which must be respected by all, whether in a majority or minority position. 6. Integration, Separation and Qualification of the Child for the Future 6.1. The Issues We should now return to the five purposes that education should serve, as set out in Article 29 of the Convention on the Rights of the Child (see above under section 4). The purpose of developing the child’s personality, talents and mental and physical abilities to their fullest possibility implies first and foremost that the child must be free from partisan indoctrination and must be given the possibility to develop its own capacity for reasoning, Under the same heading it is also important that the child must be able to develop its talents and abilities, which requires the use of an instrumental perspective with the best interests of the child in mind. The child need to become capable in matters such as mathematics, physics, life sciences, and must have health related education – all of which are capabilities which to a large extent are universal and transcend the cultural differences of groups. The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations, is also a universal concern which transcends the particular cultures of the minority and the majority. It is when we come to the third component of the educational contents set out in Article 29 of the CRC that we come to the core of the issue of this paper. It requires that the education serves the purpose to develop respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own. When we come to the fourth element, in Article 29(1)(d) (the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin) we are again dealing with a universal concern, not tied up particularly to the particular majority or minority cultures in the country in question. The same applies to Article 29(1)(e), the development of respect for the natural environment. While the Convention on the Rights of the Child therefore provides a convincing (and legally binding) set of criteria for the content of education, its 20

GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION implementation is difficult in practice. Educational policies are often highly controversial because different stakeholders seek to pursue different aims for the educational process. The roles that education plays are in fact the result of political choices arising from the concerns of those different stakeholders. Education can be a factor in aggravating or reducing conflicts. Depending on its methods and content, it can serve confrontation, coexistence, or co-operation, tolerance, and equal dignity. Education imparts not only pedagogic instruction but attitudes, values and behaviours. Education contributes to the transmission of language, culture, moral values and social organisation, and is therefore of great importance for the state as agent of the national society, for the minority organisations as agents for their communities, and for the individual pupil/student. The intentions behind the educational approach may fail, however, if it conflicts too much with the interests and values of the students, particularly if students resist the message conveyed through the educational system. 6.2. Free to choose? Whose preferences should decide? Whose values, and whose interests, are or shall be reflected in the institutions, the content and the methods of education, and who shall make the decisions thereon? What role should be played by the central state authorities, by the local authorities, by the different ethnic or religious groups, by the parents, and by the students themselves when they reach an age where their views could or should be taken into account? What does the emerging international law as based on the United Nations Charter, primarily human rights law, have to say on this? This presentation has addressed these issues from the dual perspective of minority rights and the right to education. There should be no need to underline the importance of this subject, in light of the contemporary ethnic and religious conflicts around the world. Who are the stakeholders with a legitimate interest in the content of education: The individual pupil or student, the parents, the community (the majority or those in a minority position), or state on behalf of the national society? The state, which adopts and implements national educational policy, is influenced by a number of interests and values. These include the dominant cultural values of society, often influenced by the dominant religion or – in cases of a past legacy of religious conflict – a deliberate secular approach to education. State concerns also include development of human resources for the needs of the national society. Particularly important are the needs of the economic system, which is increasingly market-oriented. This gives direction to the assessment of which qualifications are likely to be important for future careers and professional life, and for the market. Furthermore, the state interest is to ensure understanding of the principles of law and order prevailing in the society. Under international standards, parents are entitled to play a key role in the content and choice of education activities. Parents are assumed to be influenced by what they consider to be in the best interest of the child, but it cannot be excluded 21

ASBJØRN EIDE that their assessment of what is best for the child is influenced by their own particular values, preferences and animosities resulting from their own past experience and their own conflicts. The leaders of religious communities and ethnic minority communities in fact play an important role in influencing the attitude of the parents and thereby their preferences in the area of education. It would require field research to find out what the dominant values and aims of these leaders have, but it can probably be presumed that, on a scale from high level of integration to high level of separation, they are likely to be more on the separationist line. Another set of stakeholders are the teachers. Without detailed knowledge of their situation, in particular the minority/majority situation, it would be difficult to make assumptions about their preferences, however. 7. Tentative Conclusions Issues surrounding minority rights and group accommodation remain controversial, but much has been achieved during the last decade through the work of the United Nations and the regional organisations such as the Council of Europe or the OSCE. Studies, working groups and standard-setting have contributed to a move towards a more consensual arena, looking for methods to achieve constructive accommodation. The role and content of education has been identified as a key element. The range of international instruments addressing multicultural and intercultural education is growing and will increasingly affect state behaviour. There is broad support for the notion that the state should function as the common home for all parts of its resident population under conditions of equality, with preservation of separate group identities for those who want it under conditions making it possible to develop those identities. A primary role of any state is to facilitate the equitable sharing of the economic wealth and social benefits of the nation as a whole. Priority in minority protection should be given to members of groups which are truly vulnerable, subject to discrimination and marginalisation by the majority. More specific aims can now be derived from a combined use of the provisions in the instruments I have discussed, in particular the Convention on Elimination of Racial Discrimination to ensure non-discrimination, and the Declaration on the Rights of Members of National or Ethnic, Religious and Linguistic Minorities, the European Framework Convention, the OSCE documents and other minority instruments in order to ensure adequate conditions for existence and identity. Together, these instruments constitute minimum rules for peaceful coexistence and constructive co-operation among members of different ethnic, religious and linguistic groups inside states, to be supplemented with the provisions of the Declaration on the Rights of Indigenous Peoples when the latter is adopted. There is a necessity, in all states, to have a common domain of equality and non-discrimination. This will unavoidably imply some degree of integration. This necessity arises from obligations undertaken by states under the international human 22

GROUP ACCOMMODATION AND THE CHALLENGES OF EDUCATION rights conventions and is required inter alia for the state to be able to ensure equality and non-discrimination in the enjoyment of human rights. However, the integration should be developed on a basis of equality, where all groups contribute with their own values and cultures to shape the common domain where their members all interact. For the long-range prevention of ethnic or religious hatred and intolerance, human rights education should be made a core curriculum subject in primary and secondary education. Additionally, measures should be taken to ensure that the substantive content of childhood and adult education is fully in line with the requirements of the Universal Declaration of Human Rights (Article 26(2)), the Convention on the Rights of the Child (Article 29(1)(b), (c) and (d)) and the Convention on the Elimination of Racial Discrimination (Article 7). Many societies are divided, or have the potential to become divided, on social, ethnic or religious grounds. It depends primarily on the different sectors of society itself whether it will disintegrate, and in that process experience the tragic conflict dynamics which have often been seen in the past, or whether there will be a process towards pluralistic, open integration based on equality where all members of society consider the state to be their common home, where civil society flourishes and where nobody exercises cultural or political hegemony. The content and organisation of education is a major element in this. A civil society is one which is not sharply divided by ethnicity, clan or religion, but transcends and privatises these identities. To privatise these identities means to leave it to the individual freely to choose her or his identity without external constraint. At the same time, each individual or group of individual should abstain from imposing identities on others who do not want them. Civil society is a concept of modernisation and civilisation, but also a concept related to the transition from community to society. An important feature of the civil society is the emergence of a criss-crossing net of non-governmental organisations and associations. It has a common domain where everybody is treated and treats each other as equals, irrespective of their national or ethnic origin, their race, language or religion. It simultaneously allows for pluralism and the preservation of different identities within the common home which is the state. Education can deeply affect these processes. The standards exist; the challenge is to make use of them in a way which combines multiculturalism with interculturalism within an overall concern for human rights – and in a way which ensures the development of the child’s personality, talents and mental and physical abilities to their fullest potential. Beyond these general observations, however, it is difficult to establish generally valid recipes. The great variations in minority situations require sensitive responses to the particular needs in each circumstance. Indigenous peoples living in their own separate areas have a greater need for separate education than most minorities living dispersed in societies, but none should be entirely separate if their existence within a common state shall have any meaning – for their mobility, their career possibilities and for their intercultural communication with others. 23

THE IMPORTANCE OF AN EDUCATION IN HUMAN RIGHTS M. Arthur Diakité* In 1948, the international community adopted a vision for the international recognition and promotion of human rights by adopting The Universal Declaration of Human Rights. The document articulated a set of shared values to protect the dignity and celebrate the potential of the individual in society. Article 26 of the Declaration specifically recognises the importance of education in strengthening respect for human rights and fundamental freedoms, but until recently, only a few of the most courageous persons ventured into teaching the principles enshrined in the Declaration. Professor Emeritus Göran Melander, the founder of the Raoul Wallenberg Institute of International Human Rights and Humanitarian Law at Lund University, is one of those courageous persons who took on such a venture before it became popular. Although he has recently retired, he is still active in teaching human rights law at that Institute. This article is written as a gesture of thanks to him for his dedication to teaching, guiding and encouraging the thousands whose lives have improved through his efforts. The existence, preservation and teaching of human rights are not things that can simply be taken for granted. Educating the next generation is vital to ensuring that the rights we have developed will be maintained and developed for all times. The recipient of an education in human rights will ensure that our society continues to grow and develop with dignity and respect for all, and that those values will remain a vital part of our national identity. This is why teaching human rights to the next generation of leaders is so important. By fostering an appreciation of human rights through the teachings of the principles within the Declaration and its subsequent Conventions, educators are instilling in the next generation the ideals and concepts that lie at the heart of a progressive and humanitarian society. By teaching the young generation (and the elderly, when possible) about the importance of principles such as respect for human dignity and mutual understanding, they provide them with direction to ensure the next generation of participants in a free and democratic civil society. Through the development of course material in human rights education, the development of public education initiatives, the provision of teacher training and supervision, and the formation of partnerships with other organisations, it is clear that the needs of a curriculum in human rights in education will make significant contributions to the progress of democratic principles in both developed and developing countries. *

LL.B., Fil. Kand., M.A., LL.M. Researcher in Human Rights Law at the Raoul Wallenberg Insitute (RWI); Chairman, The English International Association of Lund (NGO); and Publisher of The Lundian Magazine <www.thelundian.com>. 25

M. ARTHUR DIAKITÉ 1. Two Case Studies on Knowledge About the Work of the United Nations As an example of this importance, consider the following comparison of knowledge about the United Nations and its human rights work in two countries, Nigeria and 1 Sweden. In a survey on awareness about the UN done in Lagos (Nigeria) by a research unit of the British Broadcasting Corporation in 1985, 65 per cent of the 500 2 Nigerians asked said they had heard about the United Nations. During the 1990s, the UN Department of Public Information commissioned a public opinion poll in Nigeria to assess the awareness, knowledge and image of the UN amongst a selected 3 population that included selected urban and rural areas. The results of this survey were that in general, those persons most familiar with the United Nations were between eighteen and twenty-nine years old, while those between thirty and thirtyfour knew less than the younger group. In this latter poll, 56 per cent of those surveyed were able to name a UN-related institution or body. The WHO, UNICEF and UNESCO were the most widely known. The profile for those most knowledgeable about the Organisation was similar to that of those who were most aware of it (between 18 and 34), while those least knowledgeable about the organisation were mostly people over 60 years. When presented with a list of five secretary-generals since 1945, only 18 per cent of those polled in the latter survey correctly identified the UN SecretaryGeneral at that time, while the majority (75 per cent) said they did not know the names of the previous S-Gs. The current Secretary-General was well known among government officials and professionals, and those taught about the UN at school were also more knowledgeable about the name of the current Secretary-General. All those surveyed were more positive than negative about the UN’s performances, especially students at the universities and colleges. Forty-nine per cent of those asked rated the work of the Organisation as good, while four per cent rated it as poor. Those not able to evaluate the performance of the Organisation (47 per cent) were almost as many as those who said it was doing a good job. The positive performance ratings by Nigerians were based on the UN’s role in maintaining world peace and enhancing economic development. Other comments focused on UN technical assistance to developing countries and UN health and education programmes that were geared toward improving living standards in the developing countries. The UN’s role in refugee resettlement and its efforts in fighting racial discrimination were also mentioned. The major reason given by the 1

The Programme Evaluation and Communications Research Unit of the UNDPI undertakes public opinion polls to analyze trends of public opinion throughout the world about the activities of the UN. See UNDPI Public Opinion in Nigeria About the United Nations, No. 13, March 1991. See also GA Res. 13(1) para.13, Annex 1 of 13 February, 1946. 2 Poll conducted by Research Bureau Nigeria LTD (RBNL), who interviewed a nationwide sample of 8,771 men and women aged 15 and over in their homes. Margin of sampling error estimated at +- 3 per cent. Ibid. 3 Ibid.

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THE IMPORTANCE OF AN EDUCATION IN HUMAN RIGHTS relatively few who rated the Organisation’s work as poor was that the UN is ineffective in making peace between Member States. A few others perceived the United Nations as not doing enough in eliminating poverty and disease such as HIV in Africa. Others regarded the policies of the Organisation’s financial institutions, the IMF and the World Bank, as not favouring developing countries. The dominant source of information about the UN in Nigeria was through radio broadcasts, which was cited by 49 per cent of those polled. Other sources of information were television (38 per cent), newspapers (32 per cent), magazines (19 per cent), books (12 per cent), meetings and speeches (six per cent), government sources (four per cent) and the UN information centre in Lagos (one per cent). Of those asked to recall where they learned about the UN, 34 per cent responded that they had been taught, 19 per cent had not been taught, and 47 per cent said they didn’t know where they had learned about the UN. On the question of their own interests in United Nations issues, international peace and security, human rights and economic development topped the list of UN issues of interest to those polled. The areas of African economic recoveries, environment protection, trade and development and world food problems were also of interest, while only half of those polled did not answer the question. It is easy to conclude that the United Nations is perceived by most Nigerians to be a forum for discussing international issues. They see it as an Organisation working for world peace. Most Nigerians rate the success of the Organisation on the basis of the issues that directly affect their lives, but there is much work to be done in Africa’s giant. Curriculums promoting human rights education need to be more widespread (especially amongst people living in the rural areas); corruption and abuses of education budgets by former governments such as the one led by the late Sani Abacha, a former military ruler, need to be eliminated; and policies where more emphasis is placed on education expenditures than on those for the military need to 4 be adopted. Sadly, Nigeria is not the only country where there are huge inconsistencies where budget allocations for the military far exceed those for education, and this uneven budgeting must be a priority for change by future 5 governments if the situation is to improve. 2. Knowledge About the Work of the UN in Sweden On the other hand, the survey about knowledge about the United Nations in Sweden had quite different results. It was conducted by the research agency TEMOTesthuset AB which interviewed a nation-wide representative sample of 1,101 men and women aged 15–75 years. Like the interview in Nigeria, this one was conducted face-to-face in the respondents’ homes between 29 January and 21 February 1990. 4

See the study by the Special Rapporteur on the right to Education of the UNCHR: Katarina Tomasevski, Education Denied, Costs and Remedies (Zed Books, 2003), pp. 9–10. 5 Ibid., p. 12 with a 2001 UNICEF chart comparing military and education budgets for thirtyfive countries.

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M. ARTHUR DIAKITÉ The margin of error in this poll was also within a margin of plus and minus three per cent.6 The poll in Sweden revealed that virtually everyone in the country – at least 99 per cent -- had heard about the UN. Teaching about the UN is extensive and takes place at all levels of education (primary through secondary schools and the universities), and human rights and the environment are the leading international issues that are the focus of the Swedish news and information media. No sociodemographic group registered less than 95 per cent awareness in this respect. Even people with minimum education in Sweden recorded an awareness level of 98 per cent. Forty-six per cent of Swedes were also able to name a UN-related institution. Thirty per cent named UNICEF, 16 per cent WHO and 13 per cent UNESCO. FAO, ILO and the Security Council were each named by one per cent. Eighteen per cent knew enough about the UN to name more than one institution. In spite of this positive news, the following organisations were erroneously identified as UN institutions: the Red Cross (four per cent); the World Wildlife Fund (three per cent); the Swedish International Development Agency (two per cent) and Save the Children Fund (one per cent). Swedes with higher education and white-collar workers were twice as likely to name a UN institution as blue-collar workers or lowincome earners were. When asked to identify the current Secretary-General from a list of five since 1945, two-thirds of Swedes correctly named the current Secretary General at that time. The profile of those who could identify him was similar to those who were most able to name a UN body. Older people were more likely to identify him than younger people (75 per cent of people over 45 years of age compared with 55 per cent of 18–29 year olds). Sixty-three per cent of Swedes said that the United Nations was doing a good job compared to 12 per cent who said that it was doing a poor job. A quarter of all Swedes said they did not know. All population groups in Sweden were more positive than negative about UN performance. Those most positive were Government white-collar workers (71 per cent), students (71 per cent) and those with higher education (70 per cent). Those who gave the UN positive ratings mainly noted its peace-keeping and international mediation role. They said that UN forces were a calming influence in the Middle East, in particular, Cyprus. UN assistance to developing countries and its work in the human rights field were also cited. In more general terms, the UN was considered a useful international forum for debate. A number of Swedes also cited UNICEF’s work as a reason for positive rating. The relatively few who rated UN performance negatively said that it was always dealing with the same issues without being able to resolve them. Some felt that the UN did not react strongly enough – it was too weighed down by negotiations and did not act decisively. When it came to sources of their information, those polled pointed to television (89 per cent), newspapers (75 per cent), and radio (66 per cent) as the most the most 6 Both surveys were undertaken by the UNDPI’s Programme Evaluation and Communications Research Unit. See Public Opinion, Issue No. 7, June 1990, UNDPI, New York.

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THE IMPORTANCE OF AN EDUCATION IN HUMAN RIGHTS important source of information about the UN for Swedes. Newspapers were almost as important a source as television for people living in the regions of Stockholm, Göteborg and Malmö, as well as those with higher education. Radio was almost as important as newspapers in the rural areas. Overall, 48 per cent of those polled indicated that they had been taught about the UN (mainly in primary school), while 44 per cent said they had not been taught and eight per cent didn’t know where they had been taught about the UN. The percentages were even higher for the younger age groups – 86 per cent for 15–17 year olds and 73 per cent for 18–29 year olds. Teaching about the UN occurred in all regions of the country, urban and rural. Those polled chose human rights (58 per cent), and the environment (57 per cent) as the issues they would most like to receive information about. Other popular issues were international peace and security, drug abuse and disarmament. Twenty-two per cent of Swedes said they were very interested in knowing more about the work of the UN general – these were especially people living in the Stockholm region, the welleducated and those over the age of 45. The conclusion of this study showed that almost everyone in Sweden has heard of the UN and most of its citizens demonstrate a good knowledge and appreciation of it. Swedish interest in humanitarian and social issues is also very evident. Those who had been ‘taught’ about the UN also had a much greater knowledge of its institutions. 3. The Results of those Case Studies Those cases studies (and the many others, not mentioned here) were important pieces of evidence during the months that followed in which the UN proclaimed the importance of promoting human rights education. One result was the proclamation of the United Nations Decade for Human Rights Education on 23 December 1994. The decade began on 1 January 1995 with high hopes that universities would be inspired by this and other proclamations to develop human rights curricula. Unfortunately, however, progress in developing countries has been slow, but today, at the dawn of the 21st Century, we find that those persons who have a human rights background and human rights expertise are increasingly called upon to help policymakers structure an international order where human rights are a priority. Events of the 20th Century and the early part of this new millennium have demonstrated that the study of Human Rights can only be defined as “the study of what rights - and duties - citizens are entitled to, and how to ensure respect for those rights”.[MJO1] A just and compassionate society requires constant maintenance and constant vigilance. 4. Recommendations for the Next Century There are countless recommendations for how States can improve the knowledge and practice of the work of the United Nations. The most important of these is obviously to change budgeting priorities and place more emphasis on budgets for education than on the military. Having achieved this, the next most important item 29

M. ARTHUR DIAKITÉ would be to adopt systems that would enable education projects to reach even the most remote communities. There are literally hundreds of examples to adopt. One such project involves the United Nations High Commissioner for Human Rights (OHCHR) in partnership with the United Nations Development Programme (UNDP) and the establishment of the Assisting Communities Together project (a.k.a. the ACT Project) to financially support grassroots activities carried out by community-based 7 organisations. Though the funds for the activities are limited, they nevertheless can make an important impact on the promotion and eventual protection of human rights and education at the local level. By supporting such initiatives, the ACT Project hopes to facilitate local human rights work that is vital to lasting improvements in the daily lives of people. Other examples of initiatives that can be taken to introduce or enhance human rights education projects with both urban and remote communities are the following: organising human rights workshops and training courses for teachers, women, students, social workers, public officials and indigenous peoples; creating information centres for the promotion and protection of human rights; building awareness of children’s human rights through theatre performances and discussions; producing an album of popular songs based on human rights in a local language; translating, recording and broadcasting the Universal Declaration of Human Rights in local languages; developing education programmes for specific populations such as ethnic and racial minorities, women, children, the disabled, prisoners, HIVpositive persons, migrant workers, etc; implementing radio campaigns on human rights; supplying local leaders and elders with the Universal Declaration and other relevant human rights materials; developing programs to assist victims of human rights violations and their families; including human rights education in school curricula, discussions in schools on multiculturalism and respect for diversity. Other initiatives which could be taken include providing human rights education materials to local schools and libraries; establishing human rights corners in schools and public libraries; broadcasting audio recordings of the Universal Declaration in local languages on local radio stations; establishing connections to the Internet in the context of human rights projects or for human rights purposes; reviewing the local human rights record (in terms of legislation/practices); organising the observation of trials where human rights are at stake; organising round-table discussions or interviews of victims of racial discrimination. Many of the above recommendations are already incorporated into Sweden’s education system, hence the rate of knowledge about the United Nations and its work in human rights. In Sweden we can thank Professor Göran Melander, founder of the Raoul Wallenberg Institute of International Human Rights and Humanitarian Law at Lund University for his contributions to the promotion of knowledge of human rights the world over.

7

ACT Project (Assisting Communities Together), OHCHR Project Report, 2003.

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THE EDUCATION OF POLICE IN HUMAN RIGHTS – A FRAMEWORK FOR HUMAN RIGHTS PROGRAMMES FOR POLICE Ralph Crawshaw* “The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote 1 respect for these rights and freedoms…”

This extract from the Preamble to the Universal Declaration of Human Rights indicates that the significance of teaching and education in human rights was recognized at the very inception of the international system for the protection of human rights, in the middle of the last century. Whilst the need for human rights education generally has continued to be expressed, there have also been numerous calls for education and training of police officials. It is important, especially in this context, to distinguish between education, which is concerned with intellectual, moral and social instruction, and training, which is concerned with teaching and acquisition of specific skills. These calls have been expressed as recommendations and requirements in, for example, many human rights instruments; in the regular reports of United Nations Working Groups and Special Rapporteurs on human rights themes; and in the recommendations of various international conferences on human rights.2 Human rights programmes for police have been delivered regularly by various international organizations for a number of years,3 and good practice in this field has been developed and set out in manuals and other teaching resources produced by

*

Ralph Crawshaw B.A (Hons), LLM. Research Fellow, Human Rights Centre, University of Essex. I would like to thank Graham Dossett for his comments on the first draft of this text. 1 Universal Declaration of Human Rights adopted and proclaimed by General Assembly Resolution 217 (111) of 10 December 1948. Last preambular paragraph. 2 See e.g. Article 10 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the reports of the UN Special Rapporteur on Torture to the Human Rights Commission; and the report of the World Conference on Human Rights held in Vienna in 1993. 3 These include the Council of Europe, the International Committee of the Red Cross, the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, and the United Nations Centre for Human Rights. 31

RALPH CRAWSHAW and for these organizations.4 Furthermore, at a national level governments and police agencies, for differing reasons, have been required to develop their own programmes.5 Research and reports by officially constituted bodies and nongovernmental organizations have also identified good practice in human rights education for police.6 It is particularly appropriate that the subject of human rights programmes for police should be included in a publication honouring professor Göran Melander, as the Raoul Wallenberg Institute for Human Rights and Humanitarian Law has made a significant contribution to the process of educating police in human rights for more than a decade. The programmes the Institute delivers in a wide variety of countries are seen as long-term projects, usually entailing a series of courses and workshops over an extended period of time. This approach has meant that it has been possible to refine the content of the programmes and the teaching material and methods, so that good practice could be developed. The ethos of the Institute has always been to encourage innovation and experimentation, and this has benefited those participating in its programmes, and given impetus to the wider effort to educate police in human rights undertaken by other important international contributors to this field of activity. The purpose of this paper is to describe a framework for human rights programmes for police that can be adapted and applied to programmes offered by international bodies or resource persons, and national authorities. However, before doing so, it is helpful to consider the relationship between human rights and policing, and to set out the purposes and principles on which such programmes are based. 1. The Relationship between Human Rights and Policing The relationship between human rights and policing can be usefully regarded as having four components: police powers and respect for human rights; police functions and protection of human rights; the requirement to investigate human rights violations; and the entitlement of police to human rights.

4

See e.g. the manual ‘Human Rights and Law Enforcement’ produced by the United Nations Centre for Human Rights; the manual ‘Police and Human Rights’ produced by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law; the Manual ‘To Serve and To Protect’ produced by the International Committee of the Red Cross; and the Police and Human Rights Training and Awareness Material produced by the Council of Europe. 5 For example the police services in England and Wales in response to the Human Rights Act 1988 which came into force on 2 October 2000; and the Royal Ulster Constabulary in response to the Report of the Independent Commission on Policing in Northern Ireland published in 1999. 6 See e.g. Mary O’Rawe and Dr. Linda Moore ‘Human Rights on Duty’ published by the Committee on the Administration of Justice, Belfast, 1997; and the Report of the Independent Commission on Policing in Northern Ireland ‘A New Beginning: Policing in Northern Ireland’ published in 1999.

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THE EDUCATION OF POLICE IN HUMAN RIGHTS 1.1. Police Powers and Respect for Human Rights Police are required to respect human rights in the exercise of their powers. This aspect of the relationship is the most commonly addressed, because one of the primary purposes of human rights is to protect people from abuse of power by the state. Abuse of power consists not only of exercising power unlawfully, but also of exercising power lawfully but unjustly, and it is in these two respects that the conflict with human rights arises. The different categories of human rights serve different purposes. Civil and political rights regulate relationships between individuals and groups in societies and the state. They protect individuals and groups from abuse of power by the state. They require power to be exercised lawfully, and in some cases prohibit arbitrary actions.7 Arbitrary actions include not only unlawful actions, but also actions that are lawful but unjust.8 Furthermore, human rights are protected by law – international law and the laws of states, and that law has come into existence because of a propensity of people with power to abuse their power. A propensity to abuse power is a characteristic police share with others who have power, and there are differing reasons, specific to the functions they perform, why those with power abuse power. For example police have a difficult and dangerous job to do. They see the effects of crime on vulnerable victims, and they experience the frustration of being unable to bring perpetrators of very serious crime to justice. These factors mean that some police feel not only entitled to violate human rights, but also required to do so. In fact it can be said that, at present, it is a condition of policing that police do not always respect human rights when exercising their powers. The nature and extent of this condition varies from agency to agency, but it is present in every police agency. Police are legally bound to respect human rights in the exercise of their powers. However, there is a contradiction that lies at the heart of the relationship between human rights and policing, and it is that police break law in order to enforce law. In doing so, they undermine the very values they are meant to protect – order and stability in society. Law breaking by law enforcers is a very serious form of disorder, striking at the roots of democracy and the rule of law, and it is a matter that human rights programmes for police must address with determination and rigour. 1.2. Police Functions and Protection of Human Rights The relationship between human rights and policing is, however, more complex than the notion of respect suggests when one reflects a little more on the nature of policing and the nature of human rights, and especially on their purposes. Both 7

E.g. the prohibition of arbitrary deprivation of life and the prohibition of arbitrary arrest or detention – articles 6 and 9 respectively of the International Covenant on Civil and Political Rights (ICCPR). 8 C.K. Boyle, ‘The Concept of Arbitrary Deprivation of Life’, in B.G. Ramcharan (ed.), The Right to Life in International Law (Martinus Nijhoff Publishers, Dordrecht, 1985).

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RALPH CRAWSHAW police and human rights are meant to protect the mental and physical integrity of the individual in specific circumstances, and they are both meant to protect the rule of law and democratic values.9 In fact, in this sense, they are complementary to each other, and not in contradiction. When the notion of protection is invoked, the police role can be seen to embrace two complementary sets of benefits to humankind – the maintenance of peace, order and stability and the protection of human rights. Police maintain peace, order and stability in society by responding to threats to, or instances of, social disorder; by preventing and detecting crime; and by assisting people who are in need of immediate aid in times of emergency. They use the law as a means to fulfil these functions. Police contribute to the protection of all human rights by maintaining or restoring order, for when social order breaks down all human rights are vulnerable. Police also protect specific human rights. For example, in their crime prevention task police endeavour to prevent murder and other unlawful killings. Failure to do so can, in certain circumstances, mean that the right to life has been violated.10 In their investigative function police are required to gather evidence and present it to courts in order that guilt or innocence may be decided. When these processes are carried out lawfully the right to a fair trial is reinforced. That right is subverted through the presentation of false evidence, or evidence unlawfully or unfairly obtained.11 1.3. The Requirement to Investigate Human Rights Violations The investigative function of police includes a duty to investigate human rights violations because, in the first instance, some violations, such as violations of the right to life and of the prohibition of torture, are very serious crimes. Furthermore, 9 E.g. the prohibition of torture protects the mental and physical integrity of the individual, the right to vote and to be elected at genuine periodic elections is supportive of democracy, and the right to equality before the law and to equal protection of the law is supportive of the rule of law (articles 7, 25 and 26 respectively of the ICCPR). 10 See e.g. Osman v. the United Kingdom, judgement of 28 October 1998, Reports of Judgements and Decisions 1998 – VIII, in which the European Court of Human Rights observed that article 2 of the European Convention on Human Rights (ECHR) may imply, in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect and individual whose life is at risk from the criminal acts of another individual. 11 See e.g. Barbera, Messegue and Jabardo v. Spain, judgement of 6 December 1988, Series A no 146, in which the European Court of Human Rights had reservations about some crucial aspects of the way in which the evidence had been taken and the conduct of the trial proceedings, including the confessions of the accused. In this respect, the Court observed that when they made their confessions to the police, they had already been charged but did not have the assistance of a lawyer, although they did not appear to have waived their right to one. Accordingly these confessions, which had been obtained during a long period of custody in which they were held incommunicado, gave rise to reservations on the part of the Court. The Court concluded that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing, and that there had been a violation of article 6(1) of the ECHR.

34

THE EDUCATION OF POLICE IN HUMAN RIGHTS human rights instruments12 and the jurisprudence of human rights institutions13 require that alleged or suspected violations of human rights should be investigated. Whilst it has not been specified that police should carry out these investigations, and indeed in some cases it would not be appropriate for them to do so, in many cases it is inevitable that police will investigate. Prompt, impartial and effective investigation of human rights abuse reinforces other measures to ensure respect for and protection of human rights, including human rights of police. 1.4. The Entitlement of Police to Human Rights Finally, the relationship is characterized by the term entitlement. Every police official is entitled, in the same way as every other person, to human rights. However, particular considerations apply to the rights of police officials, as members of an occupational group, because of the nature of their work and because they are state officials. For example, because they sometimes have to respond to situations in which their lives are at risk, they need specific forms of training and equipment, and consideration has to be given as to how they are briefed and deployed to meet such situations. It is the responsibility of the state, in respect of state officials, to ensure that such requirements as these are met, and that the right to life of police officials is protected. The right to just and favourable remuneration ensuring an existence worthy of human dignity14 is another example of a right that requires special consideration. Governments need to ensure that police pay and conditions of service are sufficient to maintain the human dignity of police officials, and to reduce the possibility of corruption. The onus on governments in this respect is particularly strong because human rights treaties allow for the imposition of lawful restrictions on members of armed forces and of the police in the exercise of the right to freedom of association with others, including the right to form and join trade unions for the protection of their interests.15

12

See e.g. McCann and Others v. the United Kingdom, Series A, No. 324 (1995), reprinted in 16HRLJ 260 (1995), in which the European Court of Human Rights held that there should be some form of effective, official investigation when individuals have been killed as a result of the use of force by the state. 13 See e.g. article 12 of the CAT which requires that each state party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. 14 Article 23(3) of the Universal Declaration of Human Rights. 15 See e.g. article 22(2) of the ICCPR.

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RALPH CRAWSHAW 2. Purposes and Principles of Human Rights Education for Police 2.1. Purposes In order to begin to address the contradiction between human rights and policing, human rights education for police should be designed and delivered to affect the attitudes and thence the behaviour of police officials so that they deliver effective, lawful and humane policing. This could be said to be the primary purpose of human rights programmes for police, but it must be acknowledged that the achievement of that purpose is dependent upon a number of factors which are outside the influence or remit of educational programmes. These factors include the existence of the necessary political will to change police agencies; the realization of cultural and organizational change within police agencies; and the enforcement of measures to secure the accountability of police to the communities they serve and to the law. For this reason it is important to recognize that there are a number of secondary but important objectives of human rights programmes for police, that can contribute to the achievement of the primary purpose to a greater or lesser degree depending upon the factors already referred to. These other objectives include simply making police officials aware of human rights norms and standards; providing a forum for police officials to discuss human rights and policing issues; providing an opportunity for police officials to consider policing from a human rights perspective; and providing a basis for continuing efforts within police agencies to deliver effective, lawful and humane policing. This latter objective can be achieved by means of workshop activities of various kinds, which are described below. 2.2. Principles Human rights education and training programmes for police should be participatory and interactive, central to the education and training of police, continuous, and relevant. It is a widely accepted principle of adult education that education and training programmes for adults are more likely to be effective if they are participatory and interactive, and human rights programmes for police are no exception to this principle. The principles of centrality and continuity are particularly relevant to programmes run by national authorities. Dealt with as a specific topic, human rights should form one of the central pillars of curricula. They should also be incorporated, where appropriate, into the subject matter of themes dealt with in other lessons. Continuity can be achieved when taking into account the educational and training needs of officials as they are promoted through rank structures, or deployed in specialist police units. Human rights should be given due prominence and emphasis in instructional programmes that police officials follow throughout their entire careers. Finally, relevance is important because police officials need to be convinced that awareness of, and compliance with, human rights standards are essential to the 36

THE EDUCATION OF POLICE IN HUMAN RIGHTS effective performance of the craft and profession of policing. They need to understand how, through the performance of their duties, they actually protect human rights. They need to be aware that their difficult and dangerous task gives them specific entitlements to human rights, and that securing these entitlements is a responsibility of governments and of police leaders. 3. A Framework for Human Rights Programmes In developing a realistic framework for human rights programmes for police, it is necessary to take into account the contradiction that lies at the heart of the relationship between human rights and policing (law enforcers break the law in order to enforce it); the terms in which the relationship can be described (respect, protect, investigate and entitlement); and the four principles identified above. The framework proposed here has five parts – context; police powers and respect for human rights; police functions and protection of human rights; police leaders and realization of human rights; and workshop. The various aspects of the first four parts, described below, are dealt with by way of presentations by teachers, and discussion. 3.1. Context There are three aspects to the context – professional context, international context, and democratic context. It is necessary to cover these aspects at the beginning of the programme so that the ensuing, more substantive, parts of the framework may be better understood and accepted. The professional context is important because, in most cases, police officials need to understand why they are being asked to consider policing from a human rights perspective, and to understand the link between lawful and humane exercise of power and professional competence. In other words, by providing a professional context it is possible to start to show the relevance of human rights to policing. The international codes of behaviour for police16 provide a good basis for discussing this topic. However, the point can also be made by asking participants to identify the qualities and characteristics of a good professional police official. They usually respond by specifying various technical policing skills, as well as high standards of personal behaviour – including integrity, honesty and compliance with ethical and legal norms. This exercise is helpful because, whilst participants may express reservations about human rights in subsequent parts of the programme, they have already identified good behaviour, which includes compliance with human rights standards, as an integral part of good professional policing.

16

E.g. the Code of Conduct for Law Enforcement Officials adopted by United Nations General Assembly resolution 34/169 of 17 December 1979, and the European Code of Police Ethics, Recommendation (2001) 10 adopted by the Committee of Ministers of the Council of Europe on 19 September 2001.

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RALPH CRAWSHAW This discussion can also be helpful and interesting because participants tend to identify some of the universal elements of police work and culture – how the common tasks of police everywhere affect the perspectives and attitudes of those that carry them out. The international context, an introduction to the international system for the protection of human rights, is provided for a number of reasons. Firstly, it is important to make police officials aware of the historical reasons for the development of the international system, and of the characteristics of human rights (e.g. inherent in every human being, universal, equal, and inalienable). The first three preambular paragraphs of the Universal Declaration of Human Rights17 provide a good starting point for discussing these topics. Secondly, it is important for police officials to understand that their acts or omissions could be scrutinized by an international human rights institution, such as the Human Rights Committee or the European or Inter-American Courts of Human Rights, in deciding whether or not there has been a breach of treaty provisions. Furthermore, the establishment of an International Criminal Court18 has made it increasingly important that police officials should be made aware of their accountability under international criminal law. Finally, the subsequent account of international human rights standards relevant to policing is made more comprehensible by this introduction. Discussions around these themes enable police officials to begin to reassess reservations they may have about the notion of human rights. After all, the rationale for the development of the international system of human rights protection, and the all too evident need for its continuance, provide compelling reasons for officials who enforce the law to accept that it is essential “that human rights should be protected by the rule of law”.19 As human rights are protected by national law, which is the law to which police officials are immediately answerable, it is possible to instruct police in their powers, and the limitations on those powers, entirely within a national context and without using the term ‘human rights’. However, there are advantages in including the international dimension, and in making explicit references to human rights. There is 17

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…” 18 In 1988 the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Rome Statue of the International Criminal Court. This Court has jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The Statute entered into force on 1 July 2002, and the Chief Prosecutor took office on 16 June 2003. 19 The third preambular paragraph of the Universal Declaration of Human Rights.

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THE EDUCATION OF POLICE IN HUMAN RIGHTS now a wide range of international human rights instruments addressed to police officials, and an ever expanding corpus of judgements, opinion and informative comment and advice from a variety of international human rights courts and other bodies that has direct relevance to day to day police work. The universal elements of police work and culture have already been referred to. These should be informed by the universal standards on good practice which have been, and which continue to be, established within the international system. These observations are particularly relevant to the education of police leaders. Finally, in the context, democracy, human rights and the rule of law are interrelated and interdependent. For example some human rights – e.g. the right to freedom of peaceful assembly and association – support and reinforce democracy, and some – e.g. the right to equality before the law and to equal protection of the law – support and reinforce the rule of law.20 Furthermore the protection of human rights is dependent on the rule of law and a functioning democracy. The democratic context is provided so that police officials can better understand their role in a democracy governed by the rule of law, and can appreciate their duty to protect human rights essential to democracy and the rule of law. Clearly ‘the democratic context’ is an important element of human rights programmes for police in countries that are democracies governed by the rule of law, or countries that aspire to that condition. In countries where that description cannot be applied, but that have nevertheless agreed to their police being exposed to a human rights programme, this topic may have to be omitted, or approached in a different manner. 3.2. Police Powers and Respect for Human Rights Essential police powers – to use force, to deprive people of their liberty, and to carry out search and surveillance operations and activities are limited by the need to respect fundamental human rights – for example the right to life, the prohibition of torture and other ill-treatment, the right to liberty of person, the right to humane treatment as a detainee, and the right to private and family life.21 Accounts of each of these human rights, linked to the exercise of police powers, and accompanied by arguments for compliance with human rights standards in the exercise of powers, form the core of a human rights programme for police. The bases for presentations on these matters are the treaty texts embodying human rights, and the jurisprudence of international human rights courts and bodies which is a rich source of relevant cases that can be of great interest to police officials. Obvious examples are cases on the right to life and the prohibition of torture considered by the Human Rights Committee and the European Court of Human Rights,22 and cases 20

See e.g. articles 21, 22 and 26 of the ICCPR. See e.g. articles 6, 7, 9, 10 and 17 of the ICCPR. 22 See e.g. Guerrero v. Colombia (45/1979), Report of the Human Rights Committee, GAOR, 37th Session, Supplement No. 40 (1982), Annex Xl; McCann and Others v. United Kingdom supra note 12; Selmouni v. France (Application No. 25803/94), Report 11 December 1997. 21

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RALPH CRAWSHAW on these matters and on ‘disappearances’ considered by the Inter-American Court of Human Rights.23 Cases on arbitrary arrest and detention and arbitrary interference with privacy considered by these bodies24 are also relevant and important, as are cases from the jurisprudence of the Committee against Torture,25 Working Group on Arbitrary Detention,26 and the Freedom of Association Committee of the Governing Body of the International Labour Office.27 Furthermore, there are a number of highly significant non-treaty international texts addressed to police officials on such matters as the use of force and firearms and the treatment of people suspected of crime and detained by police.28 These instruments are very practical in nature. They set high professional standards for police, and compliance with them would both enhance operational effectiveness and secure respect for human rights protected by international and national law. For these reasons they are useful sources of reference in police educational and training programmes. 3.3. Police Functions and Protection of Human Rights Reference has already been made to the fact that police create conditions for the enjoyment of all human rights by maintaining social order, and to the fact that they protect specific rights in specific ways. In fact the protection of human rights can be seen as a distinct police function equal in importance to, and interconnected with, other police functions. Furthermore, and in the same way, the protection of people from unlawful discrimination can be regarded as a police function. Respect for the principle of non-discrimination is fundamental to the protection of human rights, and failure to respect that principle causes tension and unrest. Consequently, the duty to protect human rights and to respond promptly and decisively to instances or situations of unlawful discrimination should be given especial emphasis in human rights programmes for police. The interrelationship between these functions, and those concerned more specifically with crime and public disorder is important and can provide a good basis for discussion. 23

See e.g. Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, Ser. C No. 4. See e.g. Mojica v. the Dominican Republic (449/1991), Report of the Human Rights Committee, Vol ll, GAOR, 49th Session, Supplement No. 40 (1994); Velasquez Rodriguez v. Honduras ibid; Leander v. Sweden, judgement 26 March 1987, Series A, No. 116. 25 See e.g. Halimi Nedzibi v. Austria (8/1991), Report of the Committee against Torture, GAOR, 49th Session, Supplement No. 44 (1994), Annex VA. 26 See e.g. Decision 38/94 (Turkey), Report to 52nd Session of the Human Rights Commission, (E/CN.4/1996/40/Add.1). 27 See e.g. Case No. 1761 against Colombia, Report No. 294 (Vol LXXVll, 1994, Series B, No.2). 28 See e.g. the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August – 7 September 1990; and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by United Nations General Assembly Resolution 43/173 of 9 December 1988. 24

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THE EDUCATION OF POLICE IN HUMAN RIGHTS Some human rights, such as the right to be presumed innocent until proven guilty and the right to a fair trial,29 are particularly relevant to the investigation of crime and should be given due prominence in police education programmes, especially those for investigators. International human rights courts and bodies have made pronouncements on police actions affecting these rights.30 The Declaration setting out the rights of victims of crime31 should also be brought to the notice of police in connection with their crime investigation function. International human rights courts and bodies have pronounced on the right to peaceful assembly and on police tactics in responding to public assemblies and demonstrations. Information of this type could be usefully included in those parts of police programmes dealing with public disorder. International standards on the use of force when responding to public assemblies should also be included.32 Whilst that part of a human rights programme dealing with police functions should address the protection of human rights, the investigation of crime and maintaining or restoring public order, special consideration should also be given to including policing in times of armed conflict and elements of international humanitarian law relevant to police. The time devoted to this topic in a programme will depend, to some extent, on the nature of the police agency to which the participants belong, and the likelihood that they may become involved in a situation of armed conflict, but it should be included for a variety of reasons. For example, whilst international humanitarian law is only applicable in times of armed conflict, some of the standards it expresses constitute good police practice in conflicts and disturbances that fall below the threshold of armed conflict. After all international humanitarian law is designed to protect victims of conflict, and protection of victims is a duty of police. It is also the case that humanitarian action by police during conflict may help to promote post-conflict reconciliation. Furthermore it is clearly a subject that should be included on programmes for police officials to be deployed on United Nations peacekeeping missions. The relationship between police and international humanitarian law can be characterized in much the same terms as those used in characterising the relationship between police and human rights – police officials are required to comply with its provisions, and to protect victims of armed conflict and the civilian population. They may be called upon to investigate crimes arising out of armed conflict,33 and they 29

Article 14 of the ICCPR. See e.g. paragraph 14 of General Comment No. 13 (21) of the Human Rights Committee on article 14 of the ICCPR, and the case Barbera, Messegue and Jabardo v. Spain, supra note 11. 31 The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by United Nations General Assembly resolution 40/34 on 29 November 1985. 32 See e.g. the case of Plattform Ärzte für das Leben v. Austria (44. D.R. 65) on article 11 European Convention on Human Rights, and principles 12–14 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 33 The requirement for police officials to investigate such crimes may arise in a number of ways. For example, each of the Geneva Conventions obliges high contracting parties to 30

41

RALPH CRAWSHAW can benefit from various forms of protection available under international humanitarian law. For example, in an international armed conflict, some members of armed law enforcement agencies that have been incorporated into the armed forces of a party to a conflict have combatant status,34 which means that they have some forms of protection on the battlefield, and are entitled to treatment as prisoners of war in the event of capture by the adverse party.35 However, the majority of police, as members of civilian police agencies, would have civilian and not combatant status in the event of such a conflict. This means that they would be entitled to the protection afforded to the civilian population in time of war.36 The provisions of international humanitarian law relevant to police and police operations in times of armed conflict are many and detailed, but it is important that all police officials should at least be aware of the purposes of this branch of public international law and the customary principles on which it is based;37 the distinctions between international and non-international armed conflict; and the status and role of police in each. Over and above this, police officials who (atypically) would have combatant status need to know the rules governing their behaviour and protection in international armed conflict, and those with civilian status (the majority) would need to be aware of the rules governing their behaviour and protection. In particular, 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War requires any civilian, military, police or other authorities who in time of war assume responsibilities in respect of protected persons, to possess the text of the

provide effective penal sanctions for persons committing or ordering to be committed grave breaches of the Conventions. They are also required to search for such persons and bring them, regardless of nationality, before their own courts or hand them over for trial to another high contracting party concerned. (Articles 49, 50, 129 and 146 of the four Conventions respectively. See also article 85 of 1977 Geneva Protocol l.) Grave breaches are acts such as wilful killing and torture or inhumane treatment when committed against those protected by the Conventions. Police could be involved in various stages of the processes required by these provisions, including investigations. Furthermore, the International Criminal Court, see supra note 18, has jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and since the Court has begun its operations, police agencies in different countries have already been involved in investigating crimes subject to the jurisdiction of the Court. 34 Article 43(3) 1977 Geneva Protocol l Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts. 35 See e.g. 1949 Geneva Convention III Relative to the Treatment of Prisoners of War. 36 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, and 1977 Protocol l, supra note 34. 37 One principle of customary law is that the right of belligerents to adopt means of injuring the enemy is not unlimited. This principle affects, for example, the use of weapons. It prohibits belligerents from using weapons that give rise to unnecessary suffering or superfluous injury. Another principle of customary law is that of proportionality. This requires belligerents, when taking action against a legitimate military objective, to have regard to the impact on civilians not being targeted. A third principle is that of discrimination which is about care in the selection of methods, of weaponry and of targets.

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THE EDUCATION OF POLICE IN HUMAN RIGHTS Convention and be specially instructed as to its provisions.38 1977 Geneva Protocol I Additional to the Geneva Conventions requires any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and the Protocol, to be fully acquainted with the text thereof.39 Furthermore, in view of the responsibilities of the Detaining Power towards prisoners of war under 1949 Geneva Convention III Relative to the Treatment of Prisoners of War, and the fact that the Convention includes provisions on their escape, capture, criminal offences committed by and against them, and on judicial proceedings- it is inevitable that a Detaining Power will meet some of its responsibilities in respect of prisoners of war through its civil police forces. This means that at least some police officials need to be aware of provisions of this Convention. Finally, all police officials should be aware of rules of behaviour in noninternational armed conflict.40 3.4. Police Leaders and Realization of Human Rights For the purposes of human rights programmes, police leaders can be defined as those officials who have responsibility for subordinates, at any level, in police agencies. They may be at the basic supervisory level; at the first level of management; at the operational command level; or at the executive/strategic level. Whatever their level within the hierarchy, they should have clearly defined roles in relation to the administration and management of the agency, and in relation to the supervision, command and control of subordinate officials. Furthermore, they have a duty of care towards subordinates that reflects the entitlement of police to human rights. Clearly there are many aspects to the administration and management of complex organizations such as police agencies but one aspect, the management of change, is particularly important for the realization of human rights. Police leaders need to direct police agencies so that their responses to changes in society are effective, lawful and humane. Furthermore they need to manage change within police agencies so that a human rights culture replaces a culture that is inimical to human rights. Provisions of international human rights instruments and decisions and findings of human rights treaty bodies, require police leaders to supervise the routine activities of police officials,41 and to command and control the actions of officials 38

Article 144 of 1949 Geneva Convention IV, supra note 36. Article 83(2) of 1977 Geneva Protocol I Additional to the Geneva Conventions supra note 34. 40 See article 3 Common to the Geneva Conventions of 1949, and 1977 Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. 41 See e.g. Principles 11 (d) and 24 of Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 39

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RALPH CRAWSHAW during the conduct of police operations.42 Reference is made above to investigations of human rights violations. Police leaders must ensure that such investigations, when carried out by police, are prompt and effective, and they must facilitate and cooperate with investigations carried out by other authorities. Furthermore, some human rights instruments43 require there to be a clear chain of command over officials with police powers. Police leaders must ensure that effectively functioning command structures are in place. Concerning the duty of care that police leaders owe towards their subordinates, the nature of police work, with its almost unique dangers and discomforts, places particular responsibilities on police leaders to secure the human rights of subordinates. The dangers and discomforts inherent in policing cannot be removed entirely but they can be mitigated. For example, as indicated above, the ways in which police officials are educated and trained, equipped, briefed, deployed, and commanded during police operations can provide greater or lesser protection for the right to life of police officials. Human rights education of police leaders should inform or remind them of all of these responsibilities and requirements, and indicate how they may be met. Committed, well-informed, and highly skilled police leaders are essential for the realization of human rights by and through policing. 3.5. Workshop One of the purposes of human rights programmes for police referred to at the beginning of this paper is to provide a basis for continuing efforts within police agencies to deliver effective, lawful and humane policing. The workshop element of the programmes is designed largely to secure this purpose. The workshops are the final part of the programme, so that the work of the participants may be informed by what they have learned from, and what they have contributed to, the preceding parts. The exact nature of the workshop activity undertaken depends on the skills, aptitudes and inclinations of the participants; the needs of the agency within which they serve; and the willingness of the high command of the agency, and perhaps the government, to pursue the longer term purposes of the programme. The teacher or resource person conducting the programme would take these factors into account when proposing a workshop topic which may, accordingly, be relatively simple or quite ambitious in scale. An example of a simple topic, should the participants be teachers or trainers of police, is the preparation by the participants of a human rights teaching manual for their own use. Such a teaching resource would be particularly appropriate for use in the country concerned because it would include the international and national standards on human rights; case studies and discussion topics, produced by people 42

See e.g. the cases of McCann and others v. the United Kingdom supra note 12, and Güleç v. Turkey judgement of 27 July 1998, Reports 1998-IV. 43 See e.g. principle 2 of the Principles on the Effective Prevention and Investigation of ExtraLegal, Arbitrary and Summary Executions.

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THE EDUCATION OF POLICE IN HUMAN RIGHTS of the country, that would be credible to students in that country; and those preparing the manual would have a sense of ownership of the end product. Another simple example, where the participants are police leaders, is to conduct a workshop in which participants, working in sub-groups, are asked to identify and discuss practical measures they could take immediately on returning to their places of duty to improve the quality of service officers under their command provide to the community, the overriding objective being to secure effective policing whilst protecting and respecting human rights. This type of workshop can inspire participants to develop imaginative and practical ideas. Initiatives commenced in the form of workshops at the conclusion of human rights training programmes can form the basis of longer-term technical assistance to the agencies concerned. For example, participants in workshops may make recommendations or proposals for future action that require guidance and support from people with expertise in technical aspects of policing or management of police agencies, in order that they may put into effect. 4. Concluding Remarks The framework proposed in this paper, which has formed the basis of programmes for police and other security officials delivered by the Raoul Wallenberg Institute, does not purport to be comprehensive in its coverage of human rights topics or themes. For example it includes no specific reference to human rights standards on the protection of women and children. However, some of these standards may be included in appropriate parts of this programme – for instance where the treatment of detainees is dealt with, standards on the protection of women and children should be covered. Furthermore, where it is clear from preparatory work for a programme that these or other topics need to be given special emphasis, the programme can be amended accordingly. Standards on the elimination of violence against women are a case in point. Experience has shown that when too many topics are included in a programme there is not enough time for discussion and debate, and programmes become insufficiently participatory and interactive. It is essential that these principles, identified above, are followed in human rights education programmes for police. Police officials are interested in all matters, including human rights, that affect their work. They have genuine concerns about human rights and the professional ethics of policing, and they must be given the opportunity to explore these. Participation in a human rights programme provides one of the few opportunities available for police officials to do this. They deserve to be given that opportunity, and they are entitled to it. The extract from the Preamble to the Universal Declaration of Human Rights quoted at the beginning of this paper calls upon every individual and every organ of society to strive by teaching and education to promote respect for the rights and freedoms in the Declaration. The education of police, their intellectual, moral and

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RALPH CRAWSHAW social instruction, can best be met through well-informed and vigorous debate and discussion.

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HUMAN RIGHTS EDUCATION IN CHINA Mr. LI Baodong* Note: This paper is dedicated to Professor Göran Melander, my best friend over the years and professor at the Law Faculty of Lund University. During the last decade, we have been working together in promoting Sino-Swedish cooperation in the field of human rights. We sometimes disagree and argue with each other, but we listen with interest and show our respect to each other at the same time. That happens to be the order of the day in promoting human rights around the globe among different civilizations. The tree of Sino-Swedish human rights exchange has yielded many fruits. For the most part this should be attributed to Professor Melander’s compassion and hard work, especially in the field of human rights education. I always maintain that the best and most efficient way to promote human rights education is to practice it on the frontline. Professor Melander is one of the models in that regard. From the mid1990s, he has been facilitating exchanges between the Supreme People’s Court, the Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice, Ministry of Foreign Affairs, and other Chinese government agencies and academic institutions, and their counterparts in Sweden. He has given lectures on many occasions. My colleagues and I have all benefited from his classes. It’s heartening to see that the Master Program in Human Rights Law is to be initiated jointly by the Human Rights Center of Law School, Beijing University and Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University next spring. It stands as another milestone in Sino-Swedish human rights cooperation. It also serves as the best gift to Professor Göran Melander, who is about to retire from active service. We all wish him well. 1. Introduction In recent years, Human Rights Education in China (HREC) has witnessed enormous progress and conceptual changes due to the resolve and commitment by the Chinese government to promote and protect human rights. I am not so ambitious as to cover all the dimensions of HREC in the present paper, but will mainly focus on four aspects, which I believe could help present its overall situation, changes, features and trends. It should be noted that the analysis is based on my personal study and experiences, and does not represent the position of the Chinese government. First, the Nationwide Legal-Awareness-Raising Campaign (NLARC) is an enormous human rights education project. It has wide coverage, rich contents, diversified forms, good organization and obvious effect in promoting human rights culture and consciousness. Secondly, as far as formal education (primary and *

Chinese ambassador to Zambia. 47

LI BAODONG secondary education) is concerned, a course entitled the Rule of Law was initiated in 2003. It covers all basic human rights ideas, and is approached from a human rights angle and drafted in human rights language. It is argued that such a step represents a conceptual change in China’s formal education. Thirdly, at the tertiary and academic level, there is a trend to include human rights in the syllabuses and relevant research is fostered. Fourthly, international cooperation on human rights education is being conducted at all levels, and with various countries and international organizations. The best example is the Seminar on Human Rights Education jointly hosted by the Ministry of Foreign Affairs (MFA) and the United Nations Office of the High Commissioner for Human Rights (UNOHCHR), and more importantly, addressed by then Vice-Premier Qian Qichen and Ms. Mary Robinson, then High Commissioner for Human Rights. When the General Assembly proclaimed the United Nations Decade for Human Rights Education (1995–2004), it defined human rights education as a “life-long process by which people at all levels of development and in all strata of society learn respect for the dignity of others and the means and methods of ensuring that respect in all societies”.1 It is concluded that recent developments of HREC fulfil such requirements in the GA definition “at all levels of development and in all strata of society” by providing HRE both at primary, secondary and tertiary education, and in society at large. There still remains much to be done. As the coherent part of the Strategy of Rule of Law and the Program of Judicial Reform carried out by the Chinese government, HREC is definitely prospering with the rapid but miltidimensional development of this country. 2. The Overall Situation of HREC The full realization of human rights represents the shared ideal of humankind. Human rights education is an important component of the human rights cause of the world. The decade between 1995 and 2004 was designated by the UN General Assembly as the Third Decade for Human Rights Education, for which a plan of action was formulated. This is an important decision by the UN for progress of the world’s human rights cause. Half way through the Decade for Human Rights Education, UNOHCHR, in cooperation with UNESCO and with the Decade’s key actors, undertook a mid-term evaluation of the progress made towards the achievement of the Decade’s objectives.2 The evaluation revealed that there was still much to be done both at national and international levels. Both the Chinese government and civil society were committed to the Decade and actively promoted human rights education accordingly. To quote China’s then Vice-Premier Qian Qichen, “the Chinese government has taken an active part in the activities of the Third Decade for Human Rights Education in line with its national conditions, and put in considerable resources in such a huge project as human rights 1

See UN General Assembly resolution (A/49/184). See UN General Assembly resolution United Nations Decade for Human Rights Education (1995-2004), (A/55/360) 7 September 2000. 2

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HUMAN RIGHTS EDUCATION IN CHINA education”.3 At the end of the Decade, I would like to avail this opportunity to explore the current situation of HREC. HREC is mainly composed of the following aspects: i.

ii.

iii.

iv.

v. vi.

Great efforts are made to eliminate illiteracy by popularizing 9-year compulsory education and eliminating illiteracy among the young and middle-aged. This has laid a solid foundation for more extensive education on human rights. NLARC feature of ‘putting law in people’s hands’ has been carried out from 1986 to build the capacity of citizens in safeguarding their rights and interests in accordance with law. Human rights and law education is brought into formal education and the vocational training system. In primary and secondary education, extensive, in-depth and clearly targeted education in law is accommodated, with a view to cultivating and enhancing the awareness of law and human rights. Academic research in human rights is encouraged, which provides human rights education with a rich source of thoughts. Such academic research, in most cases, is connected to relevant tertiary education and thematic lectures at universities and colleges. The white paper on the human rights situation in China is issued infrequently by the Press Office of State Council. The publicity of human rights, laws and cases of remedies for human rights violations is initiated by civil society, such as All China’s Women’s Federation, Youth Union, bar associations, legal aid centers or local communities.

The above list is certainly not an exhaustive one. It is just the tip of the iceberg of the status quo of HREC. 3. Nationwide Legal-Awareness-Raising Campaign (NLARC) – The Largest Human Rights Education Project in the World 3.1. The Rationale of NLARC as Human Rights Education The ‘good law’, in essence, stipulates in the form of state will the rights and obligations of citizens, and ensures proper implementation of the law through state coercive measures so that citizens may truly enjoy their rights and fulfil their obligations. China’s legal system with the Constitution at the core clearly provides for and guarantees the rights of citizens from various perspectives. The mission to make the people aware of their rights protected by law and apply the law if their rights are violated, therefore, is essential to the protection of such legitimate rights. Bearing this in mind, the Chinese government has concluded three 5-year NLARCs 3

See speech by Vice-Premier Qian Qichen of the People’s Republic of China at the Opening Session of the Seminar on Human Rights Education, 8 November 2001, China World Hotel. It was disseminated during the Seminar.

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LI BAODONG since 1986 and is currently implementing its 4th Campaign stretching from 2001 to 2005. NLARC is the most enormous human rights education project in the world, since it is, after all, taking place in a country where one fifth of the world’s population lives. Its large scale, wide coverage, rich contents, diversified forms, good organization and evident effects are unprecedented. 3.2. The Study on the 3rd NLARC The 3rd NLARC was carried out in the period from 1996 to 2000, when more than 800 million citizens received legal education at various levels. The program focused on the Constitution, the fundamental state laws, and other basic laws, and laws and regulations closely related to daily work and life. More than 50 laws and regulations were listed as key items in the NLARC.4 Citizens from the central and local governments, from urban and rural areas, from government bodies to enterprises and from state leadership to the grassroots level, all studied and comprehended relevant laws and regulations based on their needs to safeguard their rights and fulfil their obligations in accordance with law. In particular, leaders at various levels were increasingly willing to study and apply the law; and their decision-making process and administration is governed by law. The Central Committee of the Communist Party, the Standing Committee of the National People’s Congress (NPC) and the State Council held periodic lectures on law, setting up good examples for leaders at various levels. Statistics show that during this period, over 280 such lectures were held for leaders at provincial or ministerial level with 12,000 person-time participation, more than 100,000 lectures for leaders at and under prefecture and bureau level with nearly 200,000 person/time participation and various training courses for leaders at county and divisional level with nearly 10 million person/time participation. Four million copies of a legal education textbook compiled for leaders at various levels entitled Fundamentals of Socialist Legal System and prefaced by then President JIANG Zimin were issued. More than 20,000 legal experts and lawyers assumed the position of legal adviser for government bodies above county levels.5 The Campaign made full use of mass media in raising legal awareness. In such a large and populous country as China, mass media has great advantages in legal education thanks to its wide coverage, and great and rapid dissemination. Radio stations, TV networks, newspapers and magazines at various levels have put in great efforts in legal education through special programs and columns. Such programs and columns on China Central Radio Station, CCTV, People’s Daily, Legal Daily, Xinhua News Agency, Guangmin Daily, Economics Daily, Worker’s Daily and 4

See the speech by Mr. ZHANG Fusen, Director of National Legal Education Office & Minister of Justice, at the 5th National Meeting on Legal Education on May 30, 2001. The speech was disseminated at the Meeting. 5 See the speech by Mr. LIU Peng, Deputy Director of National Legal Education Office & Vice Minister of Justice, at the 5th National Legal Educational Meeting on May 31, 2001. The speech was disseminated at the Meeting.

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HUMAN RIGHTS EDUCATION IN CHINA China Youth Daily had excellent social effects and won wide popular acclaim. With the popularization of cable TV, some local TV networks did an even better job. Programs such as Today’s Law by Chonqing TV and the 7th Day by Beijing TV are among those most popular by presenting human rights case study and revealing corruption and misconduct by government officials. Within the 5 years, various innovative legal education activities were launched at the grassroots level all over China, such as a photo exhibition, a legal consultancy and legal knowledge contest, etc. Some provinces and cities carried out large-scale thematic legal education activities. Programs such as Legal Knowledge Contest on Rule of Law, Legal Education Day and Rural Legal Education were launched in Jilin, Sichuan and Chonqing with millions of participants. From January 26 to June 26 every year, Yunan Province, where drug-related crimes and drug dealing are rampant, always carried out a legal education campaign on the prohibition of drugs with over 2 million participants.6 3.3. The Framework of the 4th NLARC The 21st Session of the Standing Committee of the 9th NPC on 28 April 2001 adopted the Decision on Furthering Legal-Awareness-Raising Campaign, which clearly sets out that “in order to meet the requirements of the socialist modernization drive in the new century, implement the 10th Five-year Plan of National Economic and Social Development and build socialist democratic and legal system, it is essential to carry out the 4th NLARC in the period from 2001 to 2005”.7 According to the Decision, the Constitution is the core for further study and popularization. The law and regulations relating to China’s accession to the World Trade Organisation (WTO) are also highlighted. The Decision requires all citizens to participate in study on law, especially leaders at various levels, judiciary, administrative and law enforcement personnel, young people and managerial staff of enterprises. It is also required that NLARC shall be treated as the fundamental task in carrying out the Strategy of Rule of Law and establishing the socialist legal system. Besides government agencies, organizations at the grassroots level, such as urban residents’ committees and villagers’ committees shall play an active role in promoting the Campaign.8 With the implementation of the 4th NLARC nationwide, modern information technology such as websites on law has been employed by the Campaign. In 2001, the Department of Legal Education and Publicity, Ministry of Justice, in cooperation with Legal Daily, established the Website of China Legal Publicity9, through which people all over the world could click and go into electronic NLARC. 6

Ibid. See the Decision on Furthering Legal-awareness-raising Campaign adopted by the 21st session of the Standing Committee of the 9th NPC on 28 April 2001, available at China NPC Section of <www.people.com.cn>. 8 Ibid. 9 Available at <www.legalinfo.gov.cn>. 7

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LI BAODONG 3.4. Evaluation The positive effects of such a large-scale campaign to raise citizens’ legal awareness are evident. Gradually, the citizens accept the concept of rights, obligations, democratic administration and protection of their legitimate rights and interests through legal remedies. They are more likely to apply laws and regulations in disputes, economic transactions and civil affairs by contracting, notarisation and consulting lawyers. In particular, more than 10 years after the Administrative Procedural Law was put into effect, there are more and more cases of ‘citizens suing officials’. Resorting to court settlement becomes an important means for citizens to protect their rights and interests. Besides, there are more and more citizens exposing illegal activities and crimes and fighting against them through legal means. Meanwhile, people are more ready to participate in democratic administration. Both the Urban Residents’ Committee Organization Law and Villagers’ Committee Organization Law are implemented in a better atmosphere of grassroots democracy. NLARC lays a solid foundation for human rights education and protection in accordance with law and for sound development of human rights cause in China. 4. The New Course of Rule of Law in Formal Education – A Fresh Input into HREC This year marks the introduction of the new Course of Rule of Law by the Ministry of Education (MOE). The textbooks were developed by the Legal Education Office under MOE according to the 4th Five-year Program for Legal-Awareness-Raising in National Education System10, which covers more than 200 million primary and secondary school students and 14 million teachers all over China. Although the formal education system (primary and secondary education) in China incorporated legal education long time ago, the new course entitled Rule of Law definitely brings some fresh air. 4.1. A human rights-based approach is applied. The Course uses two textbooks for primary and secondary schools respectively. It introduces the concepts of basic human rights by listing relevant laws, cases and illustrative stories. Right to democratic election, health, freedom, dignity, privacy, property, inheritance, education, intellectual property, etc. are all covered. It does its best to tell the children and adolescents what human rights they have, in what laws these rights are promulgated, in what circumstances these rights could be violated, and what remedies they could resort to.

10

See the Preface of the Textbook of Rule of Law For Secondary School (China Map Publishing House, 2003).

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HUMAN RIGHTS EDUCATION IN CHINA 4.2. Relevant international human rights instruments are referred to wherever appropriate. In the section on the right to privacy in the Rule of Law for Secondary School, Article 16 of the Convention on the Rights of the Child (CRC) and Rule 8 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice are quoted in full text.11 In the section on the right to education, Article 13 of the International Covenant on Economic, Social & Cultural Rights (ICESCR) is quoted, in addition to relevant provisions of domestic laws12. Wherever international instruments are referred to, notes are added on whether China is a party to the instrument in question and the state obligations thereafter. 4.3. There are many other bright or even innovative points about the newly issued textbooks For instance, it encourages students to conduct fact-finding research on how the right to education is realized in their communities and then report and make recommendations to relevant government agencies based on their findings.13 This teaching method is unprecedented. It also tells the children that their basic human rights of dignity and freedom cannot be infringed upon by anybody, even their teachers14. This obviously is at odds with the traditional Confucian teaching to follow the senior, especially the teachers, unconditionally. From the beginning of 2003, the Course, as a pilot teaching program, was introduced to students in provinces and municipalities such as Shangdong, Hebei, Liaoning, Sichuan, Chongqing, etc. The MOE is confident that the Course will be promoted and set up gradually all over China. By then, the new Course, with its new concepts, will definitely have a great and positive impact on the next generation in China. 4.4. Human Rights Education at the Tertiary and Academic Levels The reason to put human rights education at the tertiary and academic levels in the same category is due to the reality that they are closely related and interactive in HREC. In recent years, the academic study on human rights is vibrant all over China and is mainly conducted in universities and academic institutions. These universities and institutions subsequently established human rights research centres and thematic offices, among which the most prestigious are the Human Rights Center of Law Institute, China Academy of Social Science (CASS), the Human Rights Center of Law School, Beijing University, and that of China Politics and Law University, etc. These universities and institutions are deeply involved in advanced human rights 11

Ibid., pp. 25–26. Ibid., p. 55. 13 Ibid. 14 See the Textbook of Rule of Law, supra note 10, pp. 33–34. 12

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LI BAODONG theory study as well as its promotion and publicity in China. Many important international human rights instruments and foreign human rights studies are translated and introduced. For instance, a Chinese version of the Encyclopaedia of Human Rights by Edward Lawson was published by Sichuan People’s Publishing House in 1997. Such books help the Chinese students and academics learn more about the internationally acknowledged human rights theories and concepts. Thematic human rights lectures are held by universities and academic institutions, some universities and colleges such as the Foreign Affairs College set up compulsory human rights courses, where students are taught about the human rights theories and international human rights mechanisms. Such prospering human rights education at tertiary and academic level not only enriches the overall HREC with its expertise and vast potentials, but also provides a solid foundation for government policy making, since many of these institutions such as CASS are important think tanks for the government. 5. International Cooperation on Human Rights Education From the early 1990s, China has been vigorously advocating strengthening international dialogues and cooperation in the field of human rights. Human rights education is an important part of such cooperation and is being conducted at all levels and dimensions. One of the important initiatives by the government is to include human rights education in the Memorandum of Understanding on Human Rights and Technical Cooperation between MFA and UNOHCHR and its subsequent Agreement. Accordingly, the Seminar on Human Rights Education was held in November 2001 and addressed by then Vice-Premier Qian Qichen. Mr. Qian elaborated on China’s strategy and efforts in promoting human rights education, and vowed that China stood ready to strengthen cooperation and dialogue in the field of human rights with the UN and other countries on the basis of equality and mutual respect.15 As the follow-up activity, a delegation composed of officials from MOE, MOJ, MFA, Education Bureau of Tibetan Autonomous Region and the Vice-Dean of the Law School of Jilin University paid a research visit to the Philippines on its human rights education. At present, MFA and UNOHCHR are exploring further programs in human rights education. The translation into English of the primary and secondary school textbooks for Rule of Law discussed above might be an option. At the same time, various joint programs and exchanges are conducted through non-official channels. The Master’s program of human rights law, jointly launched by the Human Rights Center of Law School, Beijing University and Raoul Wallenberg Institute of Human Rights and Humanitarian Law, will start in Spring 2004.16 It presents one of the best examples for such cooperation and will definitely contribute to HREC. At the present stage, it would be very difficult to give the exact

15

See supra note 3. See Notification for Enrolment of <www.hrol.org/notification/info.php?id=14>. 16

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Human

Rights

Master,

available

at

HUMAN RIGHTS EDUCATION IN CHINA statistics on previous and ongoing exchanges and cooperation nationwide in this field, but their vigour and extensiveness are definite. 6. Conclusion I would like to conclude the present paper with 3 quotations. First, as concluded by the participants of the Seminar on Human Rights Education, HREC is best featured by “human rights and law education”.17 Such a feature is best manifested both by more than one decade’s NLARC and the newly initiated course of Rule of Law in formal education. Secondly, when the General Assembly proclaimed the United Nations Decade for Human Rights Education (1995–2004), it defined human rights education as a “life-long process by which people at all levels of development and in all strata of society learn respect for the dignity of others and the means and methods of ensuring that respect in all societies”.18 Recent developments of HREC fulfil such requirements in the GA definition as “at all levels of development and in all strata of society” by providing human rights education both at primary, secondary and tertiary education and in society at large. Thirdly, as then President JIANG Zemin pointed out, “the establishment of a concept and the cultivation of an awareness take time”.19 While remarkable achievements have been made in HREC, much remains to be done. As the coherent part of the Strategy of Rule of Law and the Program of Judicial Reform carried out by the Chinese government, HREC is definitely prospering with the rapid but multidimensional development of China.

17

See Report of the Seminar on Human Rights Education, 8–9 November 2001, China World Hotel, Beijing, China. 18 See supra note 1. 19 See supra note 3.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA: THE CONTRIBUTION OF THE RAOUL WALLENBERG INSTITUTE Sun Shiyan* The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993 emphasized that human rights education plays “an important role in the promotion and respect of human rights with regard to all individuals” 1 and called upon all States to strengthen human rights education. Pursuant to this suggestion, the General Assembly of the United Nations, in its Resolution 49/184 of 23 December 1994, proclaimed the United Nations Decade for Human Rights Education beginning on 1 January 1995. Almost in the same period, the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (the RWI) at Lund University in Sweden, led by Professor Göran Melander, the then Director of the Institute, started its educational activities focusing on human rights in China. Ever since then, the RWI has committed to the promotion of human rights education and research in China. Therefore, it seems very proper to contribute an article regarding human rights education and research in China and the RWI’s contribution thereto to the Festschrift for Professor Göran Melander. In accordance with relevant provisions in some major international human rights instruments,2 and for the purpose of the Decade for Human Rights Education, the United Nations High Commissioner for Human Rights defined human rights education as “training, dissemination and information efforts aimed at the building of a universal culture of human rights through the imparting of knowledge and skills

*

LL.B. (Jilin University, 1991), LL.M. (Jilin University, 1994), Ph.D. (Graduate School of Chinese Academy of Social Sciences, 1999); Research Fellow and Professor, Centre for International Law Studies, Chinese Academy of Social Sciences; Visiting Professor 2003, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University. 1 Vienna Declaration and Programme of Action, U.N. Doc. (A/CONF.157/24) (1993), Part I, para. 33; see also Part II: Human rights education. 2 According to the United Nations High Commissioner for Human Rights, those provisions are: Article 26 of the Universal Declaration of Human Rights; Article 13 of the International Covenant on Economic, Social and Cultural Rights; Article 29 of the Convention on the Rights of the Child; Article 10 of the Convention on the Elimination of All Forms of Discrimination against Women; Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination; paras. 33 and 34 of the Vienna Declaration and paragraphs 78 to 82 of its Programme of Action. (A/51/506/Add.1), Annex, Report of the United Nations High Commissioner for Human Rights on the implementation of the Plan of Action for the United Nations Decade for Human Rights Education, Appendix, Plan of Action for the United Nations Decade for Human Rights Education, 1995–2004: Human rights education- lessons for life, para. 1. 57

SUN SHIYAN and the moulding of attitudes”3 and “lessons for life”. However, the term ‘human rights education’ in the present article is used in a much narrower sense, which mainly refers to the intra-curricular human rights teaching at university level and within the academic field. Human rights education in this sense has been one of the most important focuses of RWI activities in China. There are a number of reasons why this approached has been followed. Firstly, this choice was determined on appraisal of the comparative advantage of the RWI. As an academic institution, the RWI is more capable of conducting various types of academic activities, such as research, training and education, than being involved in direct human rights protection and promotion like that of many human rights non-governmental organizations. Secondly, under the political and social circumstances of the mid1990s in China, it was more advisable to engage human rights with an academic approach than to directly address human rights problems. Thirdly, the main cooperating partners of the RWI in its human rights activities in China are universities, research institutions and scholars. According to Henry Steiner, “given the [international human rights] movement’s global significance to individuals, states, and international relations, it is critical that universities foster the study and teaching of human rights”.4 Even though the cooperation and other activities have been mostly limited within ‘academic area’, the effect and influence are far more beyond academic circle. Both Chinese academic institutions and scholars have been playing extremely active roles in building up rule of law in China, including the drafting of law, the consultation to the government, and the dissemination of legal awareness and so on. The cooperation with Chinese academia, therefore, is an indirect, yet very efficient, way to facilitate the legal reform and human rights protection in China. Fourthly, and maybe most importantly, many Chinese academics participating in various programmes carried out by the RWI are teachers at law faculties and law departments in universities. If they may incorporate human rights knowledge and approaches into their lectures, their students, who will become judges, prosecutors, governmental officials, lawyers or pursue other law-related jobs, may well incorporate these knowledge and approaches into their work and thus have far-reaching influence upon the establishment of rule of law and building of human rights in China.5 This focus on academic cooperation does not mean that the RWI has solely engaged academia in China. As a matter of fact, there have been two parallel tracks 3

Ibid., para. 2; and Report of the Secretary-General, United Nations Decade for Human Rights Education (1995–2004) and public information activities in the field of human rights, Addendum, Guidelines for national plans of action for human rights education, para. 11. 4 H. J. Steiner, ‘The University’s Critical Role in the Human Rights Movement’, 15 Harvard Human Rights Journal (2002) p. 318. 5 The importance of the human rights education for law students can be deduced from Plan of Action for the United Nations Decade for Human Rights Education, supra note 2, paras. 24– 25. On the roles of academics and universities in promoting human rights, see L. C. Backer, ‘Human Rights and Legal Education in the Western Hemisphere: Legal Parochialism and Hollow Universalism’, 21 Penn State Int’l L. Rev. (2002) pp. 131–132.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA of RWI programmes in China, one in cooperation with Chinese academia, and the other with administration of justice, mainly the judiciary and prosecution service. Nevertheless, following the same principle, those cooperative activities with administration of justice are mainly training programmes as well. However, this article will focus on those programmes of the RWI in cooperation with Chinese academia. This article has three parts. The first part will briefly introduce the development of human rights studies and the legal education in China. The second part will identify some problems as regards human rights education in China and the corresponding RWI programme activities. The third part will appraise the prospects of human rights education in China based on the experience of the RWI. 1. Introduction The human rights situation in China and the Chinese Government’s viewpoints on human rights have been covered by a number of research projects6 and are beyond the scope of this article. It is still necessary, however, to briefly introduce the development of human rights discourse in China and the basic structure of Chinese legal education to provide the background against which the following parts may be displayed. 1.1. Human Rights Discourse From the establishment of the People’s Republic of China in 1949 to the beginning of the new era of reform and opening-up in the late 1970s, the concept of human rights in the generally accepted sense was almost alien to Chinese political and legal discourses. In the 1980s, Chinese scholars started research on human rights. The research was however mostly politically and ideologically charged, discussing such problems as whether human rights were compatible with socialist system and ideology, or the relations between human rights and sovereignty, and to a large extent remained on a theoretical level and had no connection to the law and practice

6 See J. Wang, ‘China and the Universal Human Rights Standards’, 29 Syracuse J. Int'l L. & Commerce (2001) p. 135; E. Wu, ‘Human Rights - China’s Historical Perspectives in Context’, 4 Journal of the History of International Law (2002) p. 335; R. P. Peerenboom, ‘What’s Wrong with Chinese Rights?: Toward a Theory of Rights with Chinese Characteristics’, 6 Harvard Human Rights Journal (1993) p. 29; R. Edwards et al. (eds.), Human Rights in Contemporary China (Columbia University Press, NY, 1986); A. Kent, Between Freedom and Subsistence: China and Human Rights (OUP, Hong Kong, 1993); A. Kent, China, the United Nations, and Human Rights—The Limits of Compliance (University of Pennsylvania Press, Philadelphia, 1999); R. Foot, Rights Beyond Borders: The global community and the struggle over human rights in China (OUP, Oxford, 2000); Marina Svensson, Debating human rights in China: a conceptual and political history (Rowman & Littlefield, Lanham, 2002), especially pp. 261–318.

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SUN SHIYAN in China. 7 Besides, the attitude of authorities in charge of ideological and propaganda work towards the research on human rights was not encouraging and even negative.8 The situation changed in the early 1990s. In order to respond to the international concern and criticism as regards its human rights records from 1989, the Chinese government changed its strategy from mere evasion to active justification. The State Council published its first white paper on Human Rights in China in October 1991 as an official and comprehensive elaboration of its viewpoints and policies of human rights. 9 In preparing the white paper, Chinese government was of the view that the input of scholars would be beneficial, so a large conference on human rights was convened in September 1990. The conference involved eminent scholars from almost all disciplines in the fields of social sciences and humanities. The convocation of the conference and the publication of the white paper signified the official support to human rights studies and thus encouraged many Chinese scholars to be engaged in human rights research. In the 1990s, human rights became a legitimate and relatively popular research topic among Chinese academics, especially legal scholars. The sphere of the research was still to a large extent dominated by theoretical, political and ideological approaches and arguments. Nevertheless, some research with respect to international human rights standards and systems, substantive human rights, and appraisal of the Chinese legal system in the light of international human rights standards had been conducted. After China signed the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1997 and 1998 respectively,10 Chinese legal scholars have paid increasing attention to the international standards and their incorporation and implementation in Chinese domestic legal system. Until now, thousands of articles and hundreds of books on human rights have been published.11 Since the mid-1990s, hundreds of conferences, seminars and workshops on human rights, many of them sponsored by and/or in cooperation with foreign institutions, have been held in China. 7

The human rights research in that period was mostly an ‘academic’ expression of China’s official views on human rights. This kind of research can still be widely found today. Theoretical dimensions of China’ human rights position, cf., E. Wu, supra note 6, pp. 363– 371. 8 See W. Zhou, ‘The Study of Human Rights in the People’s Republic of China’, in J. T. H. Tang (ed.), Human Rights and International Relations in the Asia-Pacific Region (Pinter, London, 1995) p. 83. 9 All the white papers issued by China on human rights can be found at < http://www.humanrights-china.org/whitepapers/menu_w.htm>, visited on 15 January 2005. 10 China subsequently ratified the Covenant on Economic, Social and Cultural Rights in February 2001. The ratification of the other Covenant is under serious consideration by the Chinese authorities. It may be ratified in a foreseeable future. 11 Some articles published in English include, for example, those contributed by Chinese scholars to P. R. Baehr et. al. (eds.), Human Rights: Chinese and Dutch Perspectives (Martinus Nijhoff, Dordrecht, 1996); and those compiled in S. Angle and M. Svensson (eds.), The Chinese Human Rights Reader: Documents and Commentary, 1900–2000 (M. E. Sharpe, NY, 2001).

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA 1.2. Law Education and Human Rights Education in China 1.2.1. A Brief Survey of Legal Education in China Legal education in the People’s Republic of China can be divided into three stages. The first stage is from 1949 to 1966, in which China basically copied the Soviet model of legal education. The second stage is the Cultural Revolution from 1966 to 1976, in which formal legal education was extremely jeopardized and almost destroyed together with the legal institutions.12 The third stage started in the late 1970s and still continues, in which the formal legal education was re-established and rapidly developed, along with the speed of reform in China. After more than 20 years of development, the legal education has become one of the most prosperous and popular academic areas in China. In such a big country as China, the scale of education is massive and the education system is extremely complicated.13 However it is sufficient to point out that by 21 April 2004, there were 1607 regular public universities or colleges in China.14 Over 300 of them have established legal education programmes within their law faculties, law departments or law specialties, and those programmes constitute the core category of the legal education in China. As in many other countries, there are three levels in this category of legal education in China: LL.B., LL.M. or JM (Jurist Master),15 and LL.D., equivalent to Ph.D. Normally law students at undergraduate level study for 4 years to complete the required program. During those 4 years, they take some 35 to 40 courses. Those courses can be divided into two categories. One category is called ‘common courses’. Just as indicated by the term, those courses are common to all undergraduate students and almost the same in all Chinese universities, including a foreign language, physical education, computer skills, and various courses relating to theories of Marxism and Socialism. The other category includes approximately 30 to 40 law courses, which in turn can be divided into two sub-categories: namely compulsory or mandatory courses and elective courses. The former sub-category, 12

For a somehow different division of stages, see J. Mo and W. Li, ‘Legal Education in the People’s Republic of China’, 4 Journal of the History of International Law (2002) pp. 187– 190, although the conclusion as regards the legal education from 1949 to 1966 is not so much different. Ibid., pp. 189–190. 13 For the present legal education in China, cf., X. Zeng, ‘Legal Education in China’ 43 South Texas L. Rev. (2002) pp. 709–714; J. Mo and W. Li, supra note 12, pp. 190–193. 14 This is the statistic by the Ministry of Education of China, which does not include military academies and Chinese Communist Party schools. Besides, there are 197 private universities in China. The full list is available on the website of the Ministry of Education, < http://www.moe.edu.cn/highedu/gxtz/ptgx_20040421.htm >, visited on 15 January 2005. 15 This degree is an odd and confusing Chinese version of the JD as in the USA. It is still a Master degree, meant to enrol those students whose first degree is in any disciplines other than law into a specially designed Master programme of law. However, many universities running this JM programme don’t or are not able to offer different courses or paths of study to the two different categories of Master students.

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SUN SHIYAN designed and required by the Ministry of Education, consists of 14 courses which are usually referred to as ‘core courses’.16 As far as elective courses are concerned, they vary in different law faculties, depending on their resource of staff and other facilities. Usually students are required to complete the mandatory courses during the first 2 years and to take the elective courses in the last 2 years. After satisfactorily completing all mandatory courses listed on the curriculum and getting the required credits from elective courses, plus a graduating thesis, sometimes a period of legal internship, students graduate and are awarded the Bachelor of Laws degree, the first law degree. In the year 2001, there were altogether about 130,000 undergraduate law students studying for LL.B. at those some 200 universities and colleges authorized to award the first law degree. As to the higher degrees in law, there are two levels: Master and Doctor, each usually takes 3 years. On Master level, there are altogether 10 programmes designed by the Ministry of Education: (Master of) jurisprudence, legal history, constitutional and administrative law, criminal law, civil and commercial law, procedure law, economic law, environmental and natural resources law, international law and military affairs. Under each graduate programme, there can be a few research directions or specializations. For example, in the programme of international law, students may choose public international law, private international law or international economic law as their specialization. All graduate students are required to complete several courses before starting to write their degree theses in their specializations. By finishing their theses and successfully defending the theses before a committee, they are awarded Master of Laws degree. Some 100 universities are permitted to confer LL.M. Among them, only about 30 are able to run more than 5 Master programmes; the rest have only one to three Master programmes. In 2001, there were about 10,000 LL.M. students studying at Chinese universities. At the Doctoral level, the system is similar in the sense that the number of doctoral programmes and which universities can award LL.D. are decided by the Ministry of Education. Five universities and one research institute in China can confer LL.D. in all programmes, and some 15 other universities are able to award LL.D. in less than 5 programmes. In 2001, there were about 1,000 LL.D. students studying at those institutions. 1.2.2. A Brief Survey of Human Rights Education in China According to some Chinese analysts, education on human rights has been systematically implemented in Chinese schools and universities since 1990, for human rights issues are covered in many courses attended by all students from the

16 Those 14 core courses are: jurisprudence, Chinese legal history, constitutional law, criminal law, civil law, criminal procedural law, civil procedural law, economic law, commercial law, administrative and administrative procedural law, public international law, private international law, international economic law, and intellectual property law.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA first year in primary school through to university.17 However, in my view, this is just a rosy picture that confuses human rights education with other forms of legal education, moral education or civic education, since in those forms, human rights in their generally accepted sense, as expressed in the Universal Declaration of Human Rights, are not integrated. It is fair to state that human rights education in its proper sense so far has not become an integral part of Chinese educational system. Since the early 1990s, human rights have already constituted one chapter in such courses as public international law, constitutional law and jurisprudence, but only to a very basic extent. The specialized and separate human rights courses or programmes were initiated by a few Chinese scholars, encouraged by the official acknowledgement of human rights studies yet with their own initiatives, at their respective law faculties or law departments in the very late 1990s. This very preliminary stage of human rights education took different forms at different universities. Very few universities had established human rights specialization under the Master or Doctoral programmes of international law or jurisprudence. Some universities had incorporated a human rights component to some extent, and with varying depth, in some courses of Master programmes. A few universities established separate human rights courses for undergraduate law students. Also, since the mid-1990s, quite a few human rights research centres or institutes have been established by universities and other institutions. Among them, the Centre for Human Rights Studies established by the Chinese Academy of Social Sciences (CASS), administered by the Institute of Law of CASS, is the highest level- national level- human rights research institution. However, despite the superficial prosperity of human rights education and research, the Chinese capacity in the area of human rights is still weak. There have been a number of problems regarding human rights education in China throughout the 1990s, and most of them remain nowadays. Firstly, human rights as a component in other courses were not proportionate to their importance. Secondly, the very few separate human rights courses were not run in a consistent and systematic way, and as in other countries, “[a]nyone daring to teach human rights has to explain what this subject is doing in the curriculum and make choices about how it might be relevant to the student”.18 Thirdly, the specialization of human rights in Master or Doctoral programmes only existed at a couple of universities and had very few students enrolled. Fourthly, most human rights research centres or institutes established in recent years haven’t played substantive and significant roles in human rights research and education. To a certain extent, establishment of such a centre or institute was to boast the emphasis on human rights studies or to attract foreign donations. There are a number of reasons for those problems. The first reason is the general lack of human rights education and research capacity. The second reason is the specific lack of qualified human rights teachers. The third reason is the lack of 17 L. Zhang et al., ‘China: Legal Education’, 3 Human Rights Education in Asian Schools (2000) <www.hurights.or.jp/hreas/3/06li.htm>, visited on 15 January 2005. 18 P. Rosenblum, ‘Teaching Human Rights: Ambivalent Activities, Multiple Discourses, and Lingering Dilemmas’, 15 Harvard Human Rights Journal (2002) p. 301.

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SUN SHIYAN teaching and research materials. The fourth reason is the lack of institutionalised human rights programmes. 2. Problems of Human Rights Education in China and the RWI’s Activities 2.1. General Capacity Building In the 1990s, Chinese scholars became more and more interested in human rights. However, except those who had the chance to study or conduct research abroad, most interested Chinese scholars didn’t have the adequate capacity of conducting genuine human rights research or lecturing human rights courses, due to the deficient knowledge about the international human rights system and the most recent human rights research outcomes. Therefore on the side of Chinese scholars there was a huge need of being informed of the development of international human rights law as a legal system and as an academic discipline. On the side of the RWI, like many other donors, the first thing to know was what was needed and what the Institute could do. In view of those conditions and needs, a number of activities have been carried out by the RWI to strengthen the general capacity building of Chinese legal scholars, and to find out what would be the most efficient ways to contribute to the capacity building. 2.1.1. Academic Meeting The first activity was the Academic Meeting co-organised by the RWI, the Norwegian Centre for Human Rights (NCHR), the Danish Institute of Human Rights (DIHR) and some Chinese universities. The meetings were attended by Chinese law teachers and scholars interested in or actually doing human rights teaching and research, Nordic and other international human rights experts, and staff members of the China programmes at the three Nordic human rights institutions. From October 1999 to October 2003, six of these meetings were conducted. The activity of holding Academic Meetings was for various purposes. The first purpose was to establish a network and to identify some competent Chinese human rights scholars, with whom the Nordic human rights institutions may cooperate in their future activities. It has been proven that through the Academic Meetings, the Nordic partners learned to a certain extent about how to work in China, and an informal framework for a longterm and sustainable capacity-building process has indeed been created. The second purpose was to facilitate the capacity building among Chinese scholars. At each meeting several international human rights experts, mostly but not exclusively from Scandinavian countries, were invited to brief Chinese colleagues about the most recent development and research activities in the field of human rights. Chinese scholars, in turn, also presented their ideas and opinions about the topics being discussed. The topics discussed at the six meetings covered a wide range of substantial human rights issues, such as the relations between international law and domestic laws in terms of human rights, the domestic implementation of international human rights standards, the obligations of states under international 64

HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA human rights law, right to food, right to development, right to education, prevention of torture, intellectual property and human rights, international labour standards, business and human rights, and the role of non-governmental organizations. The Chinese participants found the meetings very informative and believed that their horizons had been expanded. Partly inspired and promoted by that meeting, a number of academic articles, either presented at the meeting or completed thereafter, have been published in Chinese law journals. The third purpose was for the participating Nordic human rights institutions, with the help of Chinese participants, to identify some areas and topics in which the Nordic institutions may take action, initiate projects and offer help. At most Academic Meetings, usually there was one session about the future activities in China. In this part, some Chinese participants gave presentations about the state of human rights studies in China, which helped the Nordic institutions gain insights into the conditions for working with human rights in Chinese contexts. Both sides then discussed what activities could feasibly be carried out to promote human rights education and research. As a matter of fact, many projects formed and implemented later on in China by the RWI itself or in cooperation with other two Nordic human rights institutions were proposed, initiated or inspired by the Academic Meetings. For example, in the first Academic Meeting held in 1999, the RWI put forward the possibility of a Master programme in human rights law in China for discussion; and some Chinese participants suggested and emphasized the importance of the teachers’ training. Both projects have been subsequently materialized and implemented. With more and more Chinese scholars getting interested in human rights, the field of human rights studies has developed very rapidly in China. As a corollary, more and more graduate students and junior scholars came to the meetings to get insights into international human rights law. After several rounds, the Academic Meeting had not only grown too big to be manageable, but also because of the frequent change and uneven levels of knowledge of the participants, there could not really be focused discussion nor could workable activity proposals be produced. The sponsoring Nordic institutions then decided to reform the Academic Meeting on the basis of what had been achieved and what had to be further enhanced. Generally speaking, the first purpose of networking had been satisfactorily accomplished. Among the participants of the Academic Meetings, the Nordic institutions had identified a group of competent Chinese human rights scholars and thus created an informal reserve pool for future cooperative activities. With respect to the second purpose of capacity building, it had been found that the Academic Meeting was not the best framework for such a purpose, since only a couple of topics could be dealt with at each meeting, and those topics could hardly be thoroughly comprehended by some Chinese participants who were not equipped with a reasonable understanding of international human rights law. The third purpose of planning future activities had been fairly achieved as well. However, it was felt that it became more and more difficult and inefficient to come up with concrete working plans in an increasingly bigger, yet not necessarily of better quality, group. As a consequence of those considerations, the form of Academic Meeting was changed to larger conferences, 65

SUN SHIYAN with the objective to cover a certain specific topic for a specific group of Chinese participants. The purpose of capacity building, especially with regard to human rights education and research, would be served by the teachers’ training projects; and the future activity planning would be undertaken by another forum. 2.1.2. Education Resource Group In late 2001, initiated by the three Nordic human rights institutions, a ‘NordicChinese Human Rights Education Resource Group’ (ERG) was formed to partly replace the advisory function of the Academic Meetings. The Group consisted of four Chinese scholars with teaching experiences in human rights law at universities, and the representatives of China programmes at the three Nordic institutions. From early 2002 to early 2004, the group held four meetings, two in Scandinavia and the other two in China. Each meeting usually lasted 3 days, with a fixed format of one day for a briefing on a substantive human rights topic from an international human rights expert, one day for briefings from the Chinese members of the group and one day for discussing former and preparing future human rights initiatives in China. These three components correspond to the underlying rationale of forming this group. Firstly, even though the Chinese members of the group are experienced teachers with firm theoretical understanding of international human rights law, they still need to be updated with the most recent developments with respect to some topics in international human rights law. When the meeting was held in one of three Scandinavian countries, Chinese members of the group were invited to stay for an extra few days at the Nordic institutes to do individual research, as part of the their competence building. Secondly, in their briefings, the Chinese members introduced the latest developments of human rights education and research in China, including research publication, the opening of human rights courses, and the establishment of human rights institutions. With those briefings, the Nordic institutions can get better insights and the knowledge about how to adapt their works and more effectively contribute to the development of the human rights cause in China. Thirdly and most importantly, the small yet highly efficient group was able to intensively discuss possible human rights projects in China. With their knowledge of both the international standards and systems of human rights on the one hand, and on the other hand the circumstances, problems and prospects in China, the Chinese members also provided the Nordic institutions with valuable advice on present and potential human rights education and training activities in China, including feasible topics and target groups for separate and joint initiatives. However, Chinese participants at the meetings attended in their individual capacities as teachers rather than as representatives of their respective universities. The meetings thus functioned as ‘brainstorming’ exercises rather than actual planning sessions. With the limitation that these Chinese members are university teachers, the mandate of the group is mainly to strengthen the teaching of and research on international human rights law at Chinese universities, without touching 66

HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA upon more practically-oriented projects separately run by the three Nordic institutions in China. With the mandate of this group having expired, the ERG meeting in February 2004 was a joint one with the newly formed second group. Compared with the first group, the second group is more balanced in terms of gender with an equal number of female and male members, and in terms of geographical distribution with members from four different universities in different cities. Hopefully this form of cooperation will continue after the second group complete their mission in the summer of 2005. 2.2. Human Resource Building 2.2.1. Teachers’ Training When Chinese academia realized the importance of human rights education and was interested in starting the education in the late 1990s, the fact was that human resource in terms of human rights education and research was extremely scarce in China. 19 Very few law faculties accommodated professors specifically and exclusively devoted to human rights law courses and research. At those human rights research centres or institutes hastily established in recent years, there was not always any active staff actually doing research. Even for the very few Chinese scholars with an interest in the field, they met with various difficulties to initiate human rights courses at the universities, and lack of proper training was one of the most serious obstacles. Against this background, at the early academic meetings, all participants agreed that teachers training should be one of the most urgent priorities to promote human rights education in China. With extensive preparation and efforts by all parties involved, the first ‘Nordic-China Workshop on International Human Rights Law for Law Teachers’ was successfully held at Jilin University in August 2001. The RWI, NCHR and DIHR co-sponsored the training course. Both European-based human rights scholars and Chinese scholars lectured at the three week course attended by 25 participants, mostly law teachers, from 15 universities and academic institutions. This workshop was a breakthrough in the sense that it was the first time in China that law teachers came together to study the fundamentals of international human rights law in a comprehensive and systematic format. The workshop was well received by both participants and lecturers. Encouraged by this progress, the three Nordic human rights institutions, in co-operation with Hunan University, China University of Political Science and Law (CUPSL), the Institute of Law of the Chinese Academy of Social Science, and Shanghai Jiaotong

19

With the boom of legal education in China, most of the 300 universities running law programmes have faced a shortage of qualified staff, needless to mention any human rights law teachers. Cf., J. Mo and W. Li, supra note 12, pp. 196–197, 202–203; and E. W. Orts, ‘The Rule of Law in China’, 34 Vanderbilt J. Transnational L. (2001) p. 61, fn. 122.

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SUN SHIYAN University respectively, carried out five more training courses for university teachers from 2002 to 2005. The main objective of this activity can be illustrated by the following paragraph in the information brochure of the first teachers’ training workshop: “The main purposes of the Workshop are to train teachers and researchers in human rights-related fields at major Chinese law faculties and institutes. The Workshop will enable them to initiate the course of international human rights law or to integrate human rights norms and approaches into other relevant law courses at their home universities, to be interested in conducting research on human rights, and to actively participate in future academic cooperative activities between Nordic human rights institutions and Chinese academic counterparts in the field of human rights on behalf of their home institutions.”

The teachers’ training courses so far conducted by the three Nordic human rights institutions are unique in China. In fact other foreign donors in the field of human rights have never run such courses in China.20 The effect of the teachers’ training courses can be assessed in the short, medium and long terms. In the short term, most participants were law teachers from various law faculties and law departments who had no experience in human rights training and thus greatly appreciated the opportunity to learn the contents of international human rights law. In the medium term, however, it has to be admitted that the main purpose of the activity, i.e. setting up human rights courses at universities, has not been so satisfactorily achieved. Only a few participants of the courses have succeeded in starting human rights courses at their own universities. Most of them didn’t try or failed to do so for various reasons, among which the institutional obstacle is the major one. Nevertheless, the effect of the courses can have a far-reaching influence upon human rights education in China in a long run, especially in the light of the most recent development of the human rights education policy in China. It has been highly expected that the Ministry of Education of China may add the course of human rights law to the list of mandatory courses – currently 14 – as another ‘core course’ to be taught at law faculties and departments in the next few years. Considering the numbers of universities and the size of the law student population in China, it is very likely that the demand of qualified human rights law teachers in China will be a huge one, and consequently the need for training of teachers in international human rights law will increase as well. However, at the present stage, even among the most well-known Chinese scholars in the field, the capacity to teach international human rights law is still not very strong, let alone to train other Chinese teachers. Therefore, if quality human rights courses are to be offered in the future, the competence-building opportunities with input from foreign experts for Chinese law teachers, for the time being, at least 20 To the knowledge of the author, there has been only one teachers training project that was not run by the Nordic institutions. China University of Political Science and Law conducted such a course in 2003 with EU funding. However, there was no EU human resource or administrative input in the course.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA are highly desirable, if not indispensable. Therefore, it can be concluded that those teachers’ training courses are a strategic step that prepared the human resource reserve for the future spreading out of human rights courses and huge demand of human rights teachers. 2.2.2. Scholarships for Visiting Scholars and Master Students The core of international human rights law consists of universal human rights accepted by the entire international community. The study of international human rights law therefore is not and should not be confined within the boundary of a certain country. It is imperative for the discourse of international human rights law that scholars all over the world communicate and share information with and learn from each other. Since the study of international human rights law started quite late and is still not so advanced in China, it is very important and helpful for Chinese human rights scholars to be exposed to a more sophisticated level of human rights studies, to know the rapid development of the international human rights regime, and to combine the experience on an international level and in other countries with the reality in China. However, as indicated above, such training and opportunities generally are not available in China. Therefore, during the past decade, a great number of Chinese scholars have studied or conducted research work on human rights in foreign countries, mostly in West Europe and North America, with either Chinese funding or funding from foreign institutions. With the knowledge acquired abroad, nowadays those scholars are playing very active and significant roles in promoting human rights education and research in China. The Raoul Wallenberg Institute is one of the pioneers who have offered such opportunities to Chinese scholars and practitioners. For ten years, a few scores of Chinese students or scholars have studied or conducted research at the RWI for long or short periods of time, mainly through three channels. The first channel is the regular training courses run by the RWI in Lund on annual basis. Ever since the RWI started its ‘Advanced International Programme on Human Rights’ in 1991 and the training programme on ‘The Equal Status and Human Rights of Women’ for the first time in 1994, one or two Chinese participant were accepted to the two courses almost every year. Altogether there have been some 30 Chinese participants in the two training programmes, of whom half are scholars from universities or research institutes and the other half are from the Ministry of Foreign Affairs or administration of justice. Some of the scholars have become leading human rights experts in China. The second channel is the regular Master programmes at the RWI. Currently the RWI runs two Master programmes in human rights in Lund, in addition to its involvement in other master programmes abroad. They are the Master Programme in Human Rights Law and the Master Programme in Human Rights and Intellectual Property Rights Law, both leading to LL.M. degrees. Since the mid-1990s, every year the RWI offers scholarships to two Chinese applicants, as part of the Human Rights Capacity Building Programme in China, to study in the Master Programmes, usually in the Human Rights Law programme. Now some 25 Chinese students have 69

SUN SHIYAN graduated from the RWI, equipped with in-depth knowledge of international human rights law, and the skills and ability to pursue human rights work. Most of them are now working in various fields relating to human rights in China. Some of them have also been involved in various projects carried out by the RWI in China and made valuable contributions. The third channel is research opportunities at the RWI. Since the late 1990s, a couple of dozen Chinese human rights scholars have conducted research at the RWI for a certain period of time, and most of them were sponsored by the RWI. During their stay at the RWI, by effectively making use of the library and discussions with staff members, those Chinese scholars did fruitful research on various human rights topics, and some results of the research have been published back in China. In this regard, it is worth mentioning that this research opportunity has also been combined with teachers’ training as an extra means of strengthening the capacity building of Chinese human rights scholars. At the teachers’ training workshop at Jilin University in 2001, the RWI and the NCHR announced two scholarships to go to Scandinavia for further research. As a result, two successful applicants spent 3 months at the RWI and the NCHR in 2002 respectively. The same type of scholarship was also offered to the participants of the following teachers’ training courses. 2.3. Resource Materials Building Another obstacle to human rights education and research in China is the lack of teaching and research materials. This lack of resource materials is reflected by a number of facts. First of all, although Chinese scholars have conducted a lot of research in the field of human rights, some publications are still politically confined or motivated; and even for the research which tries to approach human rights from an ideologically neutral and objective perspective, one remark regarding human rights research worldwide also describes their quality: “[a] lot of the literature in the filed is merely descriptive, superficial and repetitive”.21 Secondly, most Chinese law faculties and law departments, even the top ones, are under-funded. With the extremely limited funding, the law libraries usually give priorities to Chinese literature and English literature in those more ‘popular’ areas such as commercial law or WTO law. Very few universities or law faculties are willing or able to afford a considerable amount of human rights book and journals. The third problem is translation. Translation is no doubt an important means, on the one hand, of introducing the research of foreign scholars to Chinese scholars, many of whom don’t read literature in foreign languages, and on the other hand of reducing the cost of the materials. However, most translators qualified in both knowledge expertise and languages abilities are again attracted mostly to translate the literature in more ‘popular’ areas. Some literature in human rights has in fact been translated into Chinese. Nevertheless, due to the lack of overall understanding and in-depth insight 21 B. Simma, ‘International Human Rights and General International Law: A Comparative Analysis’, IV-2 Collected Courses of the Academy of European Law (1993) p. 164.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA of international human rights law, those translated books and articles by no means reflect the high-level and updated research outcomes of international human rights scholars. The last but maybe the most serious problem in terms of promoting human right education in China is that until the end of 2002, there was no special human rights textbook in China. Bearing in mind the above-mentioned problems, the RWI has designed and carried out some projects to strengthen the resource materials of human rights in China. 2.3.1. Book Donation Soon after the RWI started its engagement in China in middle of the 1990s, the first outcry heard by the Institute from its cooperating partners and scholars in China was that the lack of access to research materials constituted a tremendous obstacle for Chinese scholars to conduct research on human rights, and the material support was a foremost urgent need. Realizing the importance for Chinese human rights scholars of having some minimum literature as the basis of research, and responding to the call from Chinese institutions, one of the first activities carried out by the RWI to enhance the research capacity in China was the Library Acquisition Project that donated human rights books and journals to Chinese academic institutions. The first library support went to the Law Institute/Centre for Human Rights Studies of CASS in 1996. Meanwhile, 11 universities and academic institutions and two libraries, including the National Library of China, were selected throughout China to receive a collection of literature with emphasis on human rights law. In 1998, some 400 titles of books, periodicals, and other materials reached those institutions and were displayed for teachers, researchers and students. The RWI has updated the collection in every following year and expanded the coverage to 17 institutions. The effect of the project is reflected by the fact that if any Chinese university keeps a substantial collection of human rights literature, it is most likely donated by the RWI. The Institute once did a survey regarding the utility of the donated literature, and the responses from Chinese institutions were highly positive. For many scholars and students, the collection was the main, and at some universities even the only, source of reference for their research and study of human rights. However there are two problems regarding the donation of human rights literature. One is that more and more Chinese universities have applied for being included on the list of donation recipients. The other is that the donated literature has not been made use of to its maximum potential, partly because many of the collections are managed by librarians with little or no training in human rights or in how to manage human rights documentary collections and reference work. As for the first problem, there is not so much the RWI can do due to its limited budget. As for the second problem, the RWI has managed to improve the more effective use of the literature. As early as at the first Academic Meeting, in addition to the discussion of substantive human rights issues and the future activities in China, one session was allocated to the training of participating Chinese librarians about how to make full use of the donations. Furthermore, a specifically designed training course for 71

SUN SHIYAN Chinese librarians and documentalists has been planned to be carried out in the Spring of 2006. 2.3.2. Translation Another project aimed at contributing to the research resource building in China by the RWI is the sponsorship of the translation of some human rights literature in English into Chinese. The rationale is based on the fact that in China most law students and legal professionals, and to a lesser extent legal scholars, needless to say ordinary people, are unable to use English as a working language. In comparison with the direct donation of books in English to Chinese law libraries, the advantages of translating work are very obvious: the Chinese versions are more accessible in terms of language and the number of copies and more affordable in terms of prices for Chinese scholars and students. The RWI has therefore implemented a number of translation projects in cooperation mainly with the Norwegian Centre for Human Rights. In so doing, the donors have not only sponsored the translation itself, but also funded the distribution of the translated books at universities across China. In order to maximize the effect, the sponsoring institutes, together with their Chinese partners, have always carefully chosen the books covering the most important human rights issues, which can be exemplified by, among others, the three already published books in Chinese: The Universal Declaration of Human Rights: A Common Standard of Achievement edited by Gudmundur Alfredsson and Asbjørn Eide; Economic, Social and Cultural Rights: A Textbook edited by Asbjørn Eide, Catarina Krause and Allan Rosas; and U.N. Covenant on Civil and Political Rights: CCPR Commentary by Manfred Nowak. Since English books and periodicals are still not easily accessible to most Chinese scholars and students, translating English human rights literature into Chinese still remains one of the most significant ways to promote human rights education, research and awareness in China. The translation projects sponsored by Nordic human rights institutions are particularly timely and relevant now that more universities are planning to set up a human rights law course and more Chinese scholars are interested in human rights studies, especially regarding the implementation of the two Covenants on human rights in China and all the related legal problems. Despite the great importance of translated literature for the human rights education and research in China, the quality of the translation is not always satisfactory. This problem exists in almost all academic fields, and flaws can also be found in those translations of human rights books sponsored by Nordic institutions. There are various reasons for the flaws in the translations, such as the lack of adequate expertise of the translators or the translators didn’t take the work to heart, and so on. One reason lies in the fact that many terms and concepts of human rights in English don’t have generally accepted corresponding expressions in existing Chinese vocabulary. Those terms and concepts have been, as evidenced by a considerable amount of translations, translated into Chinese in various ways, and many of them are either inaccurate or misleading. This problem, inter alia, has 72

HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA impaired the quality of the translation to a certain extent, and the translated works, in this respect, thus have not achieved the effect and influence that they might have done. Against the above-mentioned background, and especially taking into account relevant problems in the translations sponsored by the Nordic institutions, the RWI and the NCHR decided in 2001 that an English-Chinese lexicon on international human rights law should be developed to serve the purpose of facilitating relevant translating works in a short term, and to meet the critical need to develop Chinese vocabulary for human rights terminology in a long term. Two Chinese scholars were assigned to carry out the project. They finished the first draft of the lexicon in early 2002 and it was circulated among some Chinese scholars who were translating human rights books. However the draft was a very preliminary one, so all the parties involved shared the view that a full-fledged dictionary-like lexicon was highly desirable. Accordingly, one Chinese scholar developed a working plan for the further development of the lexicon in the summer of 2002. It is yet up to the RWI and the NCHR to decide whether this massive and costly project in terms of time, human and financial resources, albeit a significant contribution with tremendous and far-reaching influence to human rights discourse in China, should be and in what way can be carried out. 2.3.3. Textbook To set up regular human rights law courses at universities, at least one human rights textbook or a few textbooks to choose from is indispensable. However, given the development of human rights studies in China, there was not any kind of human rights textbooks in China until the end of 2002. Among other things, the absence of teaching materials constitutes a tremendous difficulty to those Chinese law teachers who are willing to set up human rights courses at their home universities. It has been generally recognized by like-minded Chinese and foreign scholars that textbooks on human rights are an urgent need with respect to the promotion of human rights education in Chinese universities. Against this background, some scholars at the NCHR, China University of Political Sciences and Law, and Foreign Affairs Collage (FAC) had been working on a Textbook in International Human Rights since 1998 (hereinafter ‘the Textbook’). The Textbook was tested at two intensive courses, one in 2000 and the other at the 2001 Jilin Workshop, and its Chinese version was eventually published in November 2002. The Textbook, despite some deficiencies, is the first human rights textbook in China and thus represents a decisive breakthrough in the efforts to enhance human rights education in China, at least at the University level and in law departments and faculties. The need for human rights textbooks will definitely increase, especially in view of the recent signal that human rights law may well be included in the national legal education syllabi within the next few years. As a matter of fact, an editorial board designated by the Ministry of Education have already developed an ‘official human rights textbook’ – Human Rights Law – for the use of forthcoming human rights 73

SUN SHIYAN ‘core course’ to be incorporated in the law curricula. Moreover, some other Chinese legal scholars, of their own initiative and/or with foreign funding, have also published 3 more human rights law textbooks. In the two and half years time, there have been already 5 human rights law textbooks available in China. However, in view of the fact that an increasing number of students and practitioners of various sorts in China are interested in studying human rights law, it is deemed to be desirable to have more human rights textbooks of other types and for different purposes. Here one may ask a reasonable question: what kinds of human rights law textbooks are being and will be developed in China? In answering the question, two aspects may merit particular attention: the Perspective and the Methodology. The generally accepted approach or perspective to the teaching of human rights law is that human rights are universal and thus should not be nationally or culturally defined or confined. The international human rights standards mainly established by United Nations on behalf of the whole international community are, and should be, the indicators against which the law and practice concerning human rights in any countries may be measured. It would not make any sense if the discussion, research and writing on human rights mainly focus on the theoretical evolution of concepts without touching upon the law and practice in the real world; or are solely limited within or even whitewash the national system and practice without adequate reference to and comparison with international human rights standards. 22 These points should be borne in mind as the guiding principles for editing any human rights textbooks. Consequently, any genuine human rights textbook must organize the whole contents around and within the framework of international human rights legal system, and make use of international norms as the benchmark and baseline for all analysis and appraisal of substantive human rights, especially in terms of domestic human rights law and practice. The second concern, in conjunction with the first one, is about the methodology of organising the contents of human rights law textbooks. By examining Chinese law textbooks in other areas, two features may be found prominent. One is that most textbooks only reflect the viewpoints of the author(s), instead of giving reasonably adequate room to different opinions in the field and thereby covering the whole field as comprehensively as possible. The other is that many textbooks do not sufficiently integrate case-law. This flaw may be justified in light of the fact that, due to the poorly developed professionalism of Chinese judiciary, there are not so many 22 According to one commentator, there are two basic directions to approach human rights, one begins with international law, and the other moves from moral, philosophical and legal precepts of rights. See M. Jones, ‘The Transformative Potential of Human Rights’, 5 Australian Journal of Human Rights (1999) <www.austlii.edu.au/au/journals/AJHR/1999/ 18.html>, visited on 15 January 2005. In China, there has been so much done from the second direction, and therefore it’s the international law approach that should be greatly promoted. Human rights education from an international perspective, albeit much broader, cf., C. Lohrenscheit, ‘International Approaches in Human Rights Education’, 48 Int’l Rev. Edu. (2002) p. 173.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA worthwhile cases to refer to in those legal areas in which the domestic legal practice is dominant. In comparison, international human rights law is different in that rich human rights jurisprudence has been developed by various judicial or quasi-judicial bodies on both international and regional levels during the past decades, and the jurisprudence is very important in developing and understanding the international human rights standards. It is therefore fair to state that any human rights textbooks merely introducing the normative standards, while not containing pertinent case law, would then not be able to reveal the overall picture of the legal regime of international human rights. Due to those two issues, many Chinese law textbooks tend to be thin and weak in terms of both substance and size compared with their foreign counterparts. In this regard, it is advisable for Chinese scholars to inspect some successful human rights textbooks before and during their editing work. They would find that even some of the leading textbooks of international human rights law were commented as ‘designed for overview courses’, and Thomas Buergenthal’s International Human Rights in a Nutshell was not categorized as a textbook, but a succinct, yet serious, summary of much of the field of international human rights. 23 This comment may give some enlightenment to Chinese scholars who are actually working or intend to work on human rights textbooks. In view of the perspectives and methodologies that so far have been taken by Chinese human rights scholars, and other conditions, it is still unclear whether and to what extent Chinese human rights scholars, e.g. those in the above-mentioned editorial groups, will be willing and able to adapt their editing work to the generally practiced methodology across the world. One thing that can be certain is that if any human rights textbooks are about to meet, inter alia, all the standards put forward above, they must require tremendous effort and arduous work to accomplish. The RWI has always been concerned about the development of human rights textbooks in China. Although the Institute so far has not been directly involved in the editing work of any kind of human rights textbooks, it has never given up the hope and possibility of making contributions in this regard. Since 2001, the RWI has discussed with some Chinese scholars about the possibilities of producing a concise and comprehensive human rights textbook that incorporates more international perspectives and contents, in contrast to many Chinese books that have a rather philosophical, theoretical and historical focus. In 2002, the RWI invited a Chinese scholar to conduct a special research to explore the feasibility of developing such a 23

D. Cassel, ‘Teaching International Human Rights Law’, 91 American J. Int’l L. (1997) p. 215. Those textbooks are: R. Lillich and H. Hannum (eds.), International Human Rights: Problems of Law, Policy and Practice (3rd ed., Little, Brown and Co., Boston, 1995); H. J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals (OUP, Oxford, 1996); F. Newman and D. Weissbrodt, International Human Rights: Law, Policy and Process (2nd ed., Anderson Publishing Co., Cincinnati, 1996). T. Buergenthal’s International Human Rights in a Nutshell (West, St. Paul, Minn.) referred to in the article was its second edition published in 1995. It was revised and updated; see Thomas Buergenthal et al., International Human Rights in a Nutshell (3rd ed., West, St. Paul, Minn., 2002). Its first edition was translated into Chinese in 1995.

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SUN SHIYAN textbook. However, considering the major undertaking of producing such a textbook, it is advisable to first wait and see the results of the other textbooks underway. This project was therefore temporarily put on hold. Meanwhile, a seminar was organised in February 2004. Some 20 Chinese scholars, most of them members of the above mentioned editorial boards, were invited by the RWI and the NCHR to participate in the discussion on appropriate contents and design of human rights textbooks. The approaches and methodologies of editing human rights law textbooks, among other things, were one of the debated issues at the seminar. 2.4. Institutionalised Human Rights Programmes Even though since the late 1990s a few Chinese universities have established human rights specialization in the Master or Doctoral programmes of international law or jurisprudence, there have been some problems with this method of human rights education. Firstly, usually there are very few courses available in the research direction due to lack of competent teachers. Secondly, each year only a very limited number of students were enrolled in the specialization. Thirdly, this course of action is not enduring and sustaining, for it may be affected or disrupted by the change of teachers or their research directions. Furthermore, this pattern of practice is apparently not able to meet the increasing demand of human rights expertise in China. One way to improve the situation is to draw lessons from one successful experience in some other countries, namely a specialized Master programme in international human rights law. With its experience of running master programmes in human rights for years, as early as at the first academic meeting, when there were very few human rights courses taught in China, the RWI suggested the possibility of establishing such a Master programme in China. Many Chinese scholars, including the present author, doubted the feasibility of the programme in view of the circumstances in China: on the one hand, the milieu didn’t seem to be highly supportive of such a programme; and on the other hand, among other things, the establishment of such a Master Programme must be determined by the Ministry of Education and thus involve some structural adjustments of the legal education system, and a university alone is not in the position to create a new Master programme. However, the progress, in an alternative way, is beyond anyone’s expectation. In 2002, Peking University School of Law developed a detailed plan for such a project to be implemented in cooperation with the RWI. Peking University School of Law subsequently got an approval from the University to add a research direction of human rights law to the existing research directions under the LL.M. programmes. The project officially commenced on 9 February 2004, with Prof. Göran Melander speaking at the inauguration as the representative of the RWI. This programme started from scratch, so it demands tremendous work, including the curricula development, teacher competence building, training of librarians and continued literature support and so on. Peking University School of Law assumes the main administrating job and provides most teaching staff. 76

HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA However, without the initiative of the RWI, and administrative, financial and human resource supports from the RWI, the programme would not have been possible. The objective of the programme is to develop human rights knowledge and skills, based on international standards and related to the Chinese context, among the enrolled Master students. Most of the 20 students in the first group are from Peking University School of Law, and a few others are from such disciplines as international relations, sociology, Marxist studies and media studies. In the programme, provided with comparatively good study conditions, those Master students will study international human rights law in a systematic way and finally complete their study with Master theses on human rights topics. Upon the successful completion of the programme, the students will obtain a Diploma in Human Rights Studies, issued jointly by the RWI and Peking University School of Law.24 We still don’t know yet what the career opportunities of the students will be like upon the completion of their study. Considering the potentially huge need for Chinese personnel trained in international human rights law, their future seems quite promising. It has been further intended that in the future, students from other Chinese universities should also be given the chance to apply for and be accepted into the project. Although this project is only a research direction under the LL.M. programme at Peking University instead of a Master programme measured against the Chinese legal education system, it is nevertheless the first of its kind in China, and may be expected to have a far-reaching impact upon human rights education and practice in China. Establishment of such a programme is only a preliminary step towards a greater extent of institutionalisation of human rights education in China. While “a thousand mile journey starts from the first step”, it is an important step. Taking into account the rapid development of human rights studies in China, and especially the possibility that human rights law may be designated or promoted as a ‘core course’ in law curricula, it can be expected with confidence that human rights law will be formalized to a full-fledged separate Master programme when the time matures, and with this step, all other Chinese universities will follow suit. 3. Process and Prospects of Building Human Rights Education in China Looking back at the development of human rights education and research in China, the different stages are very clear. In the 1980s, it was just the beginning of human rights studies in China and the discourse was entirely limited to a small group of scholars and the research was highly politically charged. In the early 1990s, human rights studies gained legitimacy, provided it was still confined within a certain scope. Since the late 1990s, the environment for human rights studies in China has become quite supportive and therefore more and more Chinese scholars have become interested in human rights research, and the human rights education, at least 24

The information brochure of the Master programme (in Chinese) is available at the website of Peking University Law School Research Centre for Human Rights , visited on 15 January 2005.

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SUN SHIYAN at law faculties and departments, has started to germinate. These developments, however, are not unique in the field of human rights. The development of human rights education and research in China is just one aspect of the effort of China to establish rule of law and to promote more protection of rights of Chinese people. Taking into account all the developments achieved until now, it can be confidently expected that human rights education will soon be in full swing in China. At the threshold of a full-scale development of human rights education, it is time for drawing some lessons from past activities, especially based on the experiences of the RWI in China, appraising the current conditions for human rights education and research, and looking forward to the near future in China. 3.1. Experiences of the RWI’s activities in China Having helped to promote human rights education and research in China for 10 years, the RWI has accumulated some experiences of building up human rights in China, which are conducive to the success of RWI activities and can be inspiring for future activities. The first experience is that the knowledge of the local conditions is crucial to plan and carry out appropriate activities. The situation in China in terms of human rights education is far more complicated than anyone might have imagined at the beginning. It has to be admitted that many foreign donors working in China have not sufficiently adapted themselves to the local culture and conditions. As specific to human rights activities, though the universality of human rights is undeniable, the awareness of human rights may well be subject to different cultures, and even political, social and economic conditions. It is therefore indispensable to know and understand the local conditions, the necessities and feasibilities for the purpose of designing appropriate projects accordingly. 25 The RWI has achieved this by employing staff with Chinese language skill and experience to work for its China programme, and more importantly, by incorporating Chinese consultants into the conception of projects, and by bringing in Chinese resource persons to the implementation of those projects. This method can be exemplified by the ERG meetings and has proven to be very helpful to the success of many activities in China. The second experience is that, with limited resources, emphasis should be put on the most urgently needed issues. In a time that human rights studies have just begun, there are be numerous issues that need to be addressed. Consequently, the selection of activities has to take into account what is most needed and what is the most effective way to address the relevant situations. With the help of Chinese cooperating institutions and individuals, the RWI has been able to identify and deal with some issues that would affect the human rights education and research in the most effective way. For example, the donation of human rights literature for research and teaching of Chinese scholars; and the teachers’ training courses, as a 25

On the importance of local resources people and avoidance of ‘patronizing’ attitudes, cf., O. C. Okafor and S. C. Agbakwa, ‘Re-Imagining International Human Rights Education in Our Time: Beyond Three Constitutive Orthodoxies’, 14 Leiden J. Int’l L. (2001) p. 563.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA ‘train the trainers’ project, has prepared a human resource for further and largerscale human rights education. The third experience is unique in terms of foreign involvement in the human rights building in China, which is the Nordic cooperation in human rights projects in China. Ever since the three Nordic human rights institutions started their human rights engagement in China in the 1990s, they shared a common objective in strengthening human rights education in China, and therefore closely cooperated with each other in carrying out many activities as mentioned above, in addition to other projects conducted by each of them separately. The three Nordic institutions have been able to share information, coordinate activities, and give full play of their respective resource and comparative advantages in their joint programmes. This type of cooperation, though highly resource demanding in terms of coordination, has proven to be greatly valuable for both the Chinese and the Scandinavian parties, and highly successful in maximizing the effect of the activities jointly performed and minimizing the possible unnecessary overlap and repetition should there be no such cooperation. 3.2. Problems and Prospects After ten years of effort, human rights education and research have made some progress in China. However it is far from satisfactory in light of the huge task of disseminating human rights knowledge to the whole population. At present, the environment for human rights education and research is better than ever. Nevertheless, Chinese people, and especially those who are committed to building up human rights in China, still face great challenges to further promote human rights studies. The Chinese government is determined to establish rule of law in China. Protection and promotion of human rights are an integral part of rule of law.26 Many measures have been taken to strengthen rule of law in China. The most recent development is that, at the proposition of the Communist Party of China, the National People’s Congress amended the Constitution of China by, inter alia, inserting one paragraph stating that “the State respects and safeguards human rights” into Article 33 of the Constitution in March 2004. This is the first time that the term ‘human rights’ has appeared in Chinese law and thus the concept of human rights achieves its ultimate legitimacy in Chinese legal and political discourse. It remains to be seen how the amendment will impact on the human rights protection and promotion in China. Consequently, how to address human rights education in the larger context of constitutionalism and rule of law is a tremendous task to deal with 26

One scholar once suggested that “[p]erhaps no other issue raises greater passion in political and legal discussions about China than the question of respect for basic human rights”. E. W. Orts, supra note 19, p. 113. This is one of the suggestions recommended for building the rule of law in China. In addition to human rights, the other suggestions are regarding institutional independence of the legal system, legal rationality and justification, and transparency. Ibid., pp. 111–115.

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SUN SHIYAN for Chinese legal scholars, especially for those who are specialized in human rights studies. Even though it is expected that a course of human rights law will soon be included in the law curriculum as a ‘core course’, in view of the fact that only a few Chinese universities now have human rights courses and only a limited number of law teachers have been equipped with some fundamental knowledge of human rights they obtained from those teachers’ training courses, there is still a long way to go before all law faculties and departments in China are able to set up quality human rights courses. Furthermore, the incorporation of human rights courses into law curricula at law faculties and departments is nothing but one and the first step to take. In accordance with the principles formulated by the United Nations, human rights should also be incorporated into all types and levels of general education.27 The human, material, financial and institutional resources for achieving this longterm goal are far from enough. Human rights education in China is therefore likely to have a very promising future, yet at the same time it is a formidable task given the current political, social and educational systems and conditions in China.28 In this regard, it is also worth pointing out that the United Nations Decade for Human Rights Education ended in 2004. However, China has not yet developed a National Plan of Action for Human Rights Education, nor established a national institution for human rights education. Nevertheless, many Chinese scholars have realized the importance of such a plan of action. Some proposals have been made to conduct baseline research in order to prepare for such a plan of action when the time matures. How to formulate a National Plan of Action for Human Rights Education in China in accordance with all the steps set forth by the UN Guideline29 is an issue in which Chinese human rights scholars may and should play essential roles. However, the actual implementation of the plan of action needs to involve many governmental agencies and a lot more human, financial and administrative resources. In promoting human rights education now at the university level and later at the national level, Chinese human rights scholars have important and even crucial roles to play. At the academic level, they are the ones to actually set up and lecture human rights courses. For this purpose, Chinese academics also need to be involved in all kinds of human rights training projects and conduct research on various human rights topics. On a practical level, they should enhance their outreach work to establish more influential relations with the judiciary, law enforcement agencies and 27 Plan of Action for the United Nations Decade for Human Rights Education, supra note 2, paras. 25, 58. Cf., S. Hornberg, ‘Human Rights Education as an Integral Part of General Education’, 48 Int’l Rev. Edu. (2002) p. 187. “Human rights should become an integral part of general education.” Ibid., p. 190. 28 Many difficulties are not unique in China, cf., J. R. Plantilla, ‘Consultation and Training for Human Rights Education’, 48 Int’l Rev. Edu. (2002) p. 281, about the difficulties and realities in promoting human rights in schools in Asia-Pacific countries. 29 Guidelines for national plans of action for human rights education, supra note 3, paras. 20– 63.

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA other legal institutions; strengthen their capacity to provide training to the target groups of legal practitioners; and more actively contribute to the existing human rights work of NGOs. They possess insight and expertise about the Chinese legal system and how it works in reality that cannot be substituted by foreign consultants. They should make full use of this advantage and try to involve more legal professionals and practitioners in various training courses and research projects that both bring in international human rights standards and take into account the legal and contextual problems existing in China.30 By this way, on the one hand the legal practitioners will benefit from the expertise of academics, and on the other hand the research and intra-curricula education of human rights can be adapted to meet the actual needs in reality in a more pertinent way. As indicated in the context of human rights textbook editing, international standards of human rights must be the principal guideline and framework of human rights education. Nevertheless, another extreme has also to be avoided- that is, the tendency to ‘externalise’ human rights discourse, to deal with universal human rights standards as something merely existing at international level, involving international relations and thus having no relevance to the ordinary people’s lives mainly affected by domestic law and practice. 31 Any human rights education activities, from human rights courses at university levels to a National Plan of Action for Human Rights Education for the whole population, therefore have to be something ‘by Chinese, in Chinese and for Chinese’ that dynamically combines and balances the international standards on the one hand, and domestic political, legal and social environments, local culture and tradition, as well as the needs of the learners on the other hand, if they are aiming at being successful in China. 32In this process, to ‘naturalize’ international human rights standards and root them into the Chinese soil, in my opinion, is a very complicated and even daunting task to fulfil by anyone who may take this challenge. Human rights education, in the long run, is the most effective and reliable tool for the growth of human rights in China, as in any country. Despite the fact that Chinese human rights scholars have well accepted the importance of human rights education and made some progress in this regard, human rights law still remains a relatively unattractive discipline in the field of legal studies. Even though human rights education and research are no longer ‘fated to be alone’ with the increasing improvement of the political and social conditions and interests in human rights, still very few students seem to be interested in human rights because of the pragmatic 30

Human rights education for professionals, cf., G. Andreopoulos, ‘Human Rights Education and Training for Professionals’, 48 Int’l Rev. Edu. (2002) p. 239. 31 This phenomenon can already be ascertained in some countries’ law education, e.g. in the USA and other American States. See L. C. Backer, supra note 5. 32 For the importance of adapting educational programmes of human rights to meet the different conditions and to accommodate different needs in various countries and even areas within countries, see M. Jones, ‘The Transformative Potential of Human Rights’, 5 Australian Journal of Human Rights (1999) <www.austlii.edu.au/au/journals/AJHR/1999/18.html>, visited on 15 January 2004.

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SUN SHIYAN difficulties of finding career opportunities in the field of human rights in China. As in many other countries, “human rights is one of those subjects that has had to justify its place in the curriculum. It has no obvious place for courts or lawyers, no clear hierarchy of norms; no career track.” 33 It still needs tremendous effort by Chinese human rights scholars to convince the students of the importance, both academically and practically, of human rights on the one hand and on the other hand to create a more conducive political, legal and social environment for human rights practice. As far as Chinese human rights scholars are concerned, a serious problem at the current stage is the sustainability of their work. As exemplified by the contribution of the RWI in China, many human rights education activities, and to a lesser extent human rights research, have heavily relied on the sponsorship and initiatives from foreign donors. Chinese academic institutions and scholars should undertake more responsibilities of carrying out human rights education in China. They should gradually develop their own institutional structure, administrative capacity and human resource to initiate and implement projects based on their own assessment of needs and corresponding tactics, for the sake of sustainability of human rights education in China. It is undeniable that foreign inputs and supports have played significant roles in promoting human rights studies in China. The sponsorship, especially the financial aid, will not last forever. In the end, it has to be the Chinese people who take care of the improvement of human rights in their own country. It is therefore essential for Chinese human rights scholars to further strengthen their selfsupporting and sustainable capacity in human rights education from now on. 4. Conclusion With the efforts of all parties involved, human rights education and research in China have made remarkable progress within a relatively very short period of time. In this process, as one commentator has correctly pointed out, to improve human rights in China, “cultural and educational exchanges play a very important role in transforming Chinese thoughts and values, as well as Chinese people’s attitudes toward the outside world. Constructive efforts, such as educational and technical assistance, exchanges of specialists, and institution building have successfully brought new thoughts and ideas to China.” 34 The contributions and inputs from foreign human rights institutions have played significant and even vital roles, of which the activities of the RWI are a very successful example. Most activities of the RWI in China aim at building and strengthening human rights education programmes, which is one of the five objective and components of human rights education set forth by the Plan of Action for the UN Decade for Human Rights Education.35 The promotion of the awareness of international human rights standards 33

P. Rosenblum, supra note 18, p. 301. J. Wang, supra note 6, p. 157. 35 Annex, Report of the United Nations High Commissioner for Human Rights on the implementation of the Plan of Action for the United Nations Decade for Human Rights 34

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HUMAN RIGHTS EDUCATION AND RESEARCH IN CHINA among politicians, law makers, law enforcement personnel, academia, the judiciary and a population as large as that in China, can therefore also be regarded as one of the RWI’s contributions to the Decade for Human Rights Education. In promoting human rights education, it should be borne in mind that “education for human rights and democracy is itself a human right and a prerequisite for the realization of human rights, democracy and social justice”, as declared by the United Nations in its Resolution 49/184.36 Most serious scholars have agreed that “human rights education is an important means of assuring, in the long term, the observance of the norms of human rights- and thus the bridging of the perceived gulf between human rights theory and practice”.37 In achieving the goals of human rights, as well as in promoting the whole international human rights movement, students and scholars have vital roles to play. 38 Nonetheless, human rights education in China, notwithstanding at law faculties and universities, is not an easy task. The problems to be solved and obstacles to be overcome are as obvious as the progress made. As in many others countries, it has become and remains a big challenge to academic institutions and scholars.39 Anyone who is committed to building human rights in China should never be content with what has been achieved. There is still a long way to go before the full prosperity of human rights education can be seen in China. It demands the effort of everyone, Chinese and foreigners alike.

Education, (A/51/506/Add.1), para. 5; Plan of Action for the United Nations Decade for Human Rights Education, supra note 2, para. 10(b). 36 (A/RES/49/184), 23 December 1994. 37 O. C. Okafor and S. C. Agbakwa, supra note 25, p. 564. Footnote omitted. 38 See H.J. Steiner, supra note 4, p. 328. 39 Cf., L.C. Backer, supra note 5.

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS Cees Flinterman* and Stacey Nitchov** The notion of human rights education can be traced back to the 1948 Universal Declaration of Human Rights (UDHR). The Declaration in its preamble makes reference to the role of education in securing human rights and fundamental freedoms for the world. It proclaims that “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms”. In article 26 of the UDHR, the aims of education are outlined. Paragraph 2 reads: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.” This clearly indicates that education is not confined to formal notions of education but is an all-encompassing concept aimed at the betterment of humankind. Since 1948, the role of human rights education in promoting understanding and peace around the globe has been enunciated in many other international human rights instruments.1 The concept was further developed in the 1970s with the UNESCO ‘Recommendation Concerning Education for International Understanding, Cooperation and Peace and Education Relating to Human Rights and Fundamental Freedoms, 1974’. This Recommendation enlarged the concept of human rights education further than the UDHR and provided an in depth analysis of education in and for human rights. Yet it was not until the World Conference on Human Rights in 1993 that human rights education was brought to the forefront of the world’s attention. Building on the UNESCO Recommendations of 1974, the *

Cees Flinterman, professor of human rights, Utrecht University (the Netherlands), director of the Netherlands Institute of Human Rights (SIM) and the Netherlands School of Human Rights Research; member of the United Nations Committee on the Elimination of Discrimination of Women (CEDAW). ** L.L.B., B.A. (Deakin University, Melbourne, Australia, 2001); Researcher, Netherlands Institute of Human Rights (SIM), Utrecht University, the Netherlands, 2003; Human Rights Legal Intern, Asylum Seeker Resource Centre, Melbourne, Australia, 2004; Legal Researcher, Deakin University, Melbourne, Australia, 2004; currently employed with the Department of Immigration and Multicultural and Indigenous Affairs, Melbourne, Australia, 2004-2005. 1 These include Article 13 of the International Covenant of Economic, Social and Cultural Rights; Article 29 of the Convention of the Rights of the Child; Article 10 of the Convention on the Elimination of All Forms of Discrimination against Women; Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination; paras. 33 and 34 of the Vienna Declaration and Programme of Action, U.N. Doc. (A/CONF.157/24) (1993); and paras 78 to 82 of the Plan of Action for the United Nations Decade for Human Rights Education, 1995–2004: Human rights education – lessons for life. 85

CEES FLINTERMAN AND STACEY NITCHOV World Conference on Human Rights in the Vienna Declaration and Programme of Action stated that human rights education, training and public information were essential for the promotion and achievement of stable and harmonious relations among communities and for fostering mutual understanding, tolerance and peace. The Vienna World Conference led to the General Assembly in its resolution 49/184 of 23 December 1994, proclaiming the 10-year period beginning 1 January 1995 the United Nations Decade for Human Rights Education. The General Assembly called on Governments to continue to increase their efforts to eradicate illiteracy and to direct education towards the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. The United Nations High Commissioner for Human Rights, with the assistance of the Centre for Human Rights, was called upon to draft and coordinate a Plan of Action for human rights education. The purpose of the Plan of Action was to make recommendations on how to establish and implement human rights education at the international, regional, national and local levels. The purpose of this paper is twofold. It will firstly look at the United Nations Decade for Human Rights Education and what the Netherlands has done in response to the Plan of Action. It will examine whether the Netherlands Government has fulfilled its responsibilities as set out under the Plan of Action, or if they are fulfilling their responsibilities towards human rights education indirectly. Suggestions for improvement will be made. The second part of the paper will discuss the success of the United Nations Decade for Human Rights Education in general. It will examine some of the main barriers inhibiting the success of the Decade and discuss whether the Netherlands should support the call for a second Decade. 1. The Netherlands and the United Nations Decade for Human Rights Education (1995–2004) 1.1. Overview of the Plan of Action Section I paragraph 2 of the Plan of Action defines human rights education for the purposes of the Decade as the training, dissemination and information efforts aimed at the building of a universal culture of human rights through the imparting of knowledge and skills and the moulding of attitudes. The objectives of the Decade outlined in the Plan of Action are as follows: the assessment of needs and formulations of strategies, building and strengthening human rights education programmes, developing educational material, strengthening the role of the mass media, and the global dissemination of the Universal Declaration of Human Rights.2 It focuses on partnerships between Governments, international organizations, nongovernment organizations, professional associations, individuals and large segments of civil society. The Decade aims to shape human rights education in a way to be relevant to the daily lives of learners. Its activities are aimed at reaching as wide an 2

UN Doc. (A/51/506/Add.1), 12 December 1996, para. 10.

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS audience as possible, through both formal and non-formal education. Special emphasis is given to the human rights education of vulnerable groups such as minorities and refugees.3 Training of professionals such as police and lawyers is also mentioned, as well as the development of human rights education in schools and universities.4 By the conclusion of the Decade, it was intended that a comprehensive collection of human rights education materials would be distributed throughout all member states and that effective national capacities for human rights education would be secured worldwide. 1.2. The responsibility of states under the Plan of Action and the United Nations Decade for Human Rights Education Section VI paragraph 28 of the Plan of Action stipulates that action at the national and local levels is crucial to the effective promotion of human rights education. Governments are considered one of the principal actors in the implementation of the Decade. Under paragraph 58, every member state is requested to draw up a national plan of action for human rights education in consultation with all relevant national and local actors and interested groups. It was requested that this plan be completed during the first year of the Decade and be transmitted to the High Commissioner for Human Rights. Each national plan should contain specific objectives, strategies and programmes for the enhancement of human rights education in pre-schools, primary schools, higher education, professional schools, the training of public officials, and in non-formal learning, including general public information. Under paragraph 59, states are requested to designate a national focal point (national committee) for human rights education to identify needs and assist in the development of a national plan. Paragraph 60 requests states to establish a national public access human rights resource and training centre or, where such centres already exist, to take concrete steps to strengthen their capacity. 1.3. Has the Netherlands fulfilled its responsibilities under the Plan of Action? While the Netherlands Government is a co-sponsor of the Decade, very little has been done to promote human rights education within the framework of the Decade. The Netherlands Government did not establish a national plan as called for in the Plan of Action. This was despite the Office of the High Commissioner for Human Rights (OHCHR) developing guidelines for national plans in order to assist member states in this undertaking5. Furthermore, no national focal point or national public access resource and training centre has been established for the purposes of the Decade. In a report to the General Assembly and to the Commission on Human Rights Education in December 1998, the Dutch Government reported that various activities 3

Ibid., para 23. Ibid., para 24. 5 UN Doc. (A/52/469/Add.1) and (Add.1/Corr.1), 20 October 1997. 4

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CEES FLINTERMAN AND STACEY NITCHOV relating to human rights education were being undertaken within the Netherlands6. Regarding the Dutch school system, while the level of teaching human rights in the classroom is left to the teacher’s discretion, teaching materials were being prepared mainly by non-governmental organisations on their initiative or in cooperation with the authorities. At the university level, the School of Human Rights Research was established as a result of the collaboration of several law faculties. It was also reported that human rights training for public officials, police and the military is institutionalised, and that public campaigns are organized on relevant issues such as refugees and immigrants. It is unclear from the report whether these initiatives form part of a coordinated national approach towards human rights education in the Netherlands, however it appears that they are separate initiatives established by individual organizations and were not established with the Decade in mind. 1.3.1. The Platform for Human Rights Education The Platform for Human Rights Education was established in 1997 with the intention of making a contribution to the United Nations Decade for Human Rights Education. The Platform consists of a conglomerate of Dutch government departments, non-governmental organisations, and local actors.7 The National UNESCO Commission holds the secretariat and the members of the Platform generally meet twice a year. Not all members of the Platform are actively involved in its activities. This is especially true for the government departments such as the Dutch Ministry of Foreign Affairs, whose participation is limited to that of an observer. The main purpose of the Platform is to stimulate human rights education in general, to make sure that the activities of its members are in accord, to avoid overlap and duplication of material, and to fulfil a directional function.8 While the Platform aims at a very broad target group, most activities are geared towards human rights education at the primary and secondary level. The Platform for Human Rights Education is lobbying for compulsory human rights education in the curriculum and has published a document titled ‘Basisdocument Mensenrechten door het curriculum’ (Human rights in the curriculum).9 This document sets common objectives for human rights education in the curriculum and emphasizes the knowledge, skills and attitudes determining the essence of human rights education in the Netherlands. The Basisdocument also aims to assist in the enhancement of products developed by the organizations involved in teaching and 6

UN Doc (E/CN.4/1999/87), 29 December 1998, para. 23(j). These include Amnesty International; Anne Frank House; ATD – Vierde Wereld Nederland; Centrum voor Mondiaal Onderwijs; National Committee 4 and 5 May; NBLC – Vereniging voor Openbare Bibliotheken; Netherlands Red Cross; Novib; SLO – Stichting voor Leerplanontwikkeling; Netherlands Institute for Human Rights (SIM), National UNESCO Committee; UNICEF Netherlands; Ministry of Foreign Affairs; Ministry of Internal Affairs; Ministry of Education and Culture; Humanistic Society Human Rights. 8 <www.cmo.nl/platform-mre/platform.html>, visited on 1 October 2003. 9 J. Bron, ‘Basisdocument Mensenrechten door het curriculum’ (SLO, Enschede, January 2001). 7

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS education in the Netherlands. A further initiative is a paper titled ‘School for Human Rights’. This paper stipulates how to make a school human rights oriented and what conditions are needed within schools to successfully implement human rights education. This paper was due to be completed in December 2003. To celebrate the 50th anniversary of the UDHR, the Platform for Human Rights Education launched an internet site relating to human rights education.10 This web site contains various human rights materials. Students can test their knowledge of human rights by participating in an online student quiz, and the website also contains lesson materials on current human rights events around the world. In 2001 the website was awarded the World Aware Education Award for excellence in networking, partnership and coordination to increase and improve global education. 1.4. Has the Netherlands fulfilled its obligations under the Plan of Action indirectly? The Netherlands has many activities and programs relating to human rights education which exist independently of a national plan of action. The Dutch Government is supporting human rights education through the sponsorship of a number of initiatives. For example in 1998, The Netherlands Ministry of Foreign Affairs published a book in English titled ‘Reflections on the Universal Declaration of Human Rights’11. It has sponsored the printing of the UDHR in Dutch, which is widely available throughout the Netherlands, and has provided funding for various training programs for the police, prison personnel and the judiciary. In relation to women’s rights, the Dutch Ministry of Social Affairs has sponsored a publication on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) titled ‘Met recht een Vrouw’ (Truly a Woman).12 The Netherlands Human Rights Ambassador takes an active role in drawing attention to human rights in the Netherlands. Some examples of recent activities undertaken include the giving of lectures at various institutes and universities within the Netherlands and the conducting of interviews with Dutch radio stations. Non-governmental organisations within the Netherlands such as Amnesty International, the Dutch Red Cross, the Netherlands Commission for UNESCO, and UNICEF play a key role in promoting human rights within the Netherlands. Resources and training materials can be accessed through their web sites. Information on different human rights issues is available in a number of different mediums such as videos, CD-ROMs, interactive lessons, games books and training packages. ‘Anne Frank. A History for Today’, is an exhibition organised by the Anne Frank House in Amsterdam which can be brought to schools with accompanying teaching materials. The Anne Frank House is continuously developing educational 10

See <www.cmo.nl>. B. van der Heijden and B. Tahzib-Lie (eds.), Reflections on the Universal Declaration of Human Rights (Martinus Nijhoff Publishers, The Hague, 1998). 12 W. Evenhuis and E. van Eijk, Met recht een vrouw (Humanistich Overleg Mensenrechten, Utrecht, 2001). 11

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CEES FLINTERMAN AND STACEY NITCHOV projects around the globe with the cooperation of local organisations. All programs are based on teaching tolerance. ‘Coming to Justice – Insight into Human Rights’ is an internationally oriented program held in the Netherlands for youth aged 17 and over. This is a four-day seminar which deals with the violent break up of Yugoslavia and discusses the issues of racism and justice.13 Memorial Day and Liberation Day (4 and 5 May) in the Netherlands are also used as an opportunity to promote human rights issues. While its origins are based on remembering World War II, it now entails a broader mandate and is used as a national campaign to promote all forms of freedoms and other human rights. Much attention is focused on youth through education and television programs, and through a series of pop concerts held in 12 major cities around Holland. The campaign brings attention to new conflicts, refugees, anti-racism and more. In 2000, a book was sent to all primary schools titled ‘Vrijheid geef je door’ (Freedom must be passed down).14 The above examples illustrate just a few of the initiatives within the Netherlands which show a commitment to human rights education. However, what is missing is the effective management and coordination of these activities. Apart from the efforts of the Platform for Human Rights Education, the Netherlands’ approach to human rights education is largely unstructured. No strategy exists to oversee or combine the efforts of the different organisations involved in human rights education. While a certain amount of communication and collaboration between different organisations exist, most organisations function independently of each other. 1.5. Barriers to successful implementation of the Plan of Action within the Netherlands There is a lack of commitment and support from the Dutch Government to stimulate the position of human rights education within the Netherlands. No Government ministry has stepped up to take control of implementing the obligations set out in the Plan of Action and to coordinate the different organisations within the Netherlands dealing with human rights education. While the Dutch Government shows commitment to human rights education by sponsoring many initiatives formulated by non-governmental organisations, it has not itself been the main creator of any national programs in collaboration with other government departments or other organisations. There is no strategy in place to strengthen the cooperation and the pooling of resources between the various national, regional, and international actors. This lack of a systematic approach leaves gaps and overlaps in resources undetected. Government involvement in and management of human rights education is stifled by a lack of clarity as to which ministries are responsible for human rights education and who are the appropriate people within these ministries to consult. Representatives from different non-governmental organisations involved in the 13

See <www.annefrank.nl/eng/afs/afs9.html>, visited on 3 October 2003. J. Bron, ‘Re: Main achievements and obstacles in first half of Decade’ <www.hrea.org/lists/hr-education/markup/msg00296.html>, visited on 15 October 2003. 14

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS Platform for Human Rights Education have expressed difficulties determining the correct government official to consult with in regards to the activities of the Platform. This is despite the fact that many of the government ministries are listed as members of the Platform. The confusion as to who is responsible for human rights education is felt by both those outside and inside the various government departments. Once the appropriate contact person is located there is still some uncertainty as to what national initiatives are taking place. The Dutch Ministry of Foreign Affairs has more information readily available on the Government’s involvement in human rights at an international level, rather than a national level. The Ministry of Education, Culture and Science did not have any information regarding the Decade for Human Rights Education apart from information on the existence of the Platform for Human Rights Education. In relation to the Dutch school system, the current policy in the Netherlands does not create an opening for compulsory human rights education to be introduced into the syllabus. In accordance with article 23 of the Dutch constitution, the way a school is run is primarily the responsibility of its competent authority. The Netherlands has a national core curriculum and national exams that schools use to determine the contents of education. Human rights are not integrated in to this, however schools have the freedom to decide how they want to teach the core curriculum and what they feel is important to include.15 Therefore there is scope for schools to use the materials produced by non-governmental organisations such as Amnesty International, the Anne Frank House, and UNICEF, etc. A barrier to introducing compulsory human rights education is that the Dutch curriculum is very full and overcrowded already. Teaching of human rights is done indirectly through civics and citizen education. There is also a lack of political will on behalf of the Dutch Government to introduce compulsory human rights education. While many government departments are members of the Platform for Human Rights Education and support the notion of human rights education, introducing compulsory human rights education does not appear to be high on their agenda. On a broader level, it appears that there is a greater chance of successfully implementing human rights education into the curriculum of transitional democracies. The fall of communism in countries such as Romania and Slovakia creates the opportunity for a new curriculum to be established. New democracies receive funding to set up human rights education, whereas the Netherlands has not received such funding. Therefore at the school level, a major political event often creates an opening for human rights education to be introduced into the curriculum. It is also apparent that some human rights education initiatives within the Netherlands are one-off efforts without any follow up. In 1985, a bibliography regarding human rights education resources was put together by the Netherlands Commission for UNESCO.16 This bibliography was to be kept on a database run by 15 J. Bron, ‘Re: Legislative and policy framework of the UN Decade’ <www.hrea.org/lists/hr-education/markup/msg00284.html>, visited on 29 September 2003. 16 Netherlands Commission for UNESCO, Mensenrechteneducatie Bibliografie (Meijer & Siegers, Oosterbeek, 1985).

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CEES FLINTERMAN AND STACEY NITCHOV the Netherlands Institute of Human Rights (SIM) and regularly updated. This has not occurred, and apart from the initial publication in 1985, no further action regarding the bibliography has been taken. 1.6. The Netherlands performance in comparison to other Western European Countries It is difficult to evaluate the response of the Netherlands Government in comparison to other Western European countries. In the state reports to the OHCHR, most Governments evince a very favourable outlook on their activities relating to human rights education. However in many cases there is a discrepancy between the intentions proclaimed and their implementation. In comparison to some of the other Western European countries, the Netherlands has not done much in the way of reporting to the OHCHR. Besides the one report submitted in 1998 which was not very detailed, no further update has been submitted. Other countries in Western Europe such as Austria, France, and Germany, have provided the OHCHR with updates as recently as 2001–2002. While it is difficult from the state reports to ascertain to what degree other countries are complying with the responsibilities towards human rights education, Austria provides a positive example of what can be achieved through a collaborative effort. In 1997, the Federal Ministry for Foreign Affairs; the Federal Ministry for Education, Science and Culture; and the Ludwig Boltzmann Institute for Human Rights jointly established the Service Centre for Human Rights Education. It organises workshops, teacher training and disseminates materials. The Service Centre has also developed networking and information tools such as a website and an electronic newsletter. Human rights education is incorporated into national legislation concerning the formal education system. The Austrian Government has created a network of human rights co-ordinators (one in each Federal Ministry) who are responsible for questions related to human rights education. The Federal Academy of Public Administration offers a human rights program which is open to all civil servants and employees from all branches of government including teachers, the police, judges and immigration officers.17 From an analysis of the state reports submitted to the OHCHR, it appears that many countries throughout the whole of Europe (as well as other regions of the world), are not fully meeting the objectives outlined in the Plan of Action. According to the mid-term evaluation of the Decade, less than one-third of governments in Europe have established a national committee for human rights education.18 Few countries in the region have encompassed a legislative framework

17 Office of the High Commissioner for Human Rights, Summary of National Initiatives undertaken within the Decade for Human Rights Education (1995 – 2004) <www.unhchr.ch/html/menu6/1/initiatives.htm>, visited on 19 November 2003. 18 UN Doc. (A/55/360), 7 September 2000, para. 82.

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS for human rights education and only one government reported integrated human rights education at all levels of schooling.19 1.7. What can the Netherlands do to further promote human rights education and its compliance with the Plan of Action? The United Nations Decade for Human Rights Education came to a close in 2004. Despite the official ending of the Decade, the efforts to strengthen activities relating to human rights education in the Netherlands should continue. The Plan of Action can still provide a useful tool for improving the structure and coordination of human rights education within the Netherlands. 1.7.1. Formation of a national focal point The Dutch government should establish a body that can identify the needs of human rights education within the Netherlands. In accordance with the Plan of Action, a national focal point (national committee) should be established. This national focal point should include members from the relevant government departments, nongovernmental organisations, and other relevant local and professional groups such as universities. It should be charged with raising funds, channelling international and regional inputs, providing information and support at the local and grassroots levels, and co-ordinating with regional and international bodies involved in human rights education.20 A separate mandate should be created for each target group. According to the mid-term evaluation, where the mandates of national committees is specific and in addition to human rights education in the formal schooling sector, includes specific human rights education mandates relating to racism, foreigners, women and children, the committees function more effectively. The diversity of participation and number of government ministries involved is also closely related to the effectiveness of national committees.21 1.7.2. National plan of action As recommended in the Plan of Action, the national focal point should establish a national plan of action relating to human rights education. This document should clarify the objectives, strategies and programs relating to human rights education and should form the basis for action in the area of human rights education. In accordance with the Guidelines for National Plans of Action for Human Rights Education published by the OHCHR,22 the plan should include the development of a baseline study which should identify high priority groups for human rights education in the Netherlands and how to make education accessible to them. Priorities in human rights education for the short, medium and long term should be established. The national plan should include a framework for monitoring human rights 19

Ibid., para. 86. Supra note 2, para. 28(b). 21 Supra note 17, para. 83. 22 Supra note 5. 20

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CEES FLINTERMAN AND STACEY NITCHOV education programs to observe how programs can be strengthened and reformulated, especially with regard to increasing local input. The national plan should also be periodically reviewed both internally and independently to make sure that it meets the ends indicated in the baseline study. 1.7.3. National Resource and Training Centre Human rights education in the Netherlands will greatly benefit from a national resource and training centre. The creation of a resource and training centre should be linked to the national focal point and involve similar organisations. Its focus should be on undertaking research, training trainers, preparing, collecting, translating and disseminating human rights materials, and organizing conferences, workshops and courses within the Netherlands.23 The resource and training centre should form the central body that manages and stores all information pertaining to human rights education in the Netherlands. It should oversee and coordinate Dutch resources on human rights education and collate regional and international human rights education materials that suit the needs of the Netherlands. Together with the national committee, the resource and training centre should monitor and evaluate the effectiveness of human rights education initiatives. Such a centre could also perform the tasks of a general National Institution for the Promotion and Protection of Human Rights, as called for by the inter alia so-called Paris Principles.24 A user-friendly website should accompany the creation of a resource and training centre. On this website information on human rights education in the Netherlands should be easily retrievable by target group. For example, under the heading ‘Human rights education for primary school children’, materials and programs from different organisations should be grouped together. For example, exhibitions held by the Anne Frank House, guest teachers which can be organised through Amnesty International, and school materials aimed at young children should all be listed on the same web page. This will enable individuals to get an overview of all materials and programs relating to each specific target group. The website should be accessible not only in Dutch, but also in other languages widely spoken in the Netherlands such as Arabic. Links to other relevant web pages that have human rights education resources, such as the OHCHR database on human rights education25 and the resource centre run by the Human Rights Education Associates (HREA)26 should be included. By forming a national focal point and establishing a national plan and resource and training centre, the ability of the Netherlands to provide structured and effective human rights education within the country will greatly improve. A national plan will pinpoint which target groups are not receiving enough attention, in which areas more training is needed, and where materials and resources are lacking. It will provide clarity and transparency in all activities being undertaken and the 23

Supra note 2, para. 28(d). UN Doc. (A/Res/48/134), 20 December 1993. 25 See <www.unhchr.ch/hredu.nsf>. 26 See <www.hrea.org/erc/index.html>. 24

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS involvement of all relevant organisations. The creation of a resource centre and an accompanying website will be extremely useful as it will bring human rights education materials under one roof. As the situation currently stands, each organisation must be separately investigated to gain an overview of human rights education initiatives within the Netherlands. The greatest benefit of establishing a national resource and training centre is that easier access to human rights education materials will lead to an increase in their use. As such, the Netherlands will further fulfil its obligations to promote respect, knowledge and involvement in human rights. 2. Should the Netherlands support the call for a second United Nations Decade for Human Rights Education? 2.1. Shortcomings of the First Decade The United Nations Decade for Human Rights Education has been met with limited success. It has often been described as a ‘catalyst’ in eliciting a response from Governments, but the response has been uneven. Inhibitors have effected the implementation of the Plan of Action at not only the national level, but also at the international, regional, and local levels. A major shortcoming affecting the success of the Decade is the weak monitoring capacity of the OHCHR. The OHCHR does not have the function or the mandate to confirm the reliability of the information provided in reports received by the various actors involved in human rights education. It cannot make further recommendations based on information contained in the reports.27 It is therefore very difficult to give an accurate evaluation of the success the Decade. This lack of a proper monitoring system within the United Nations has played a major role in the Decade coming to an end without adequate achievements of its objectives. There is also apathy by many member states regarding reporting. For example, the mid-term evaluation of the Decade requested that member states fill in questionnaires regarding various efforts and programs relating to human rights education. This was in order to determine the direction of the remainder of the Decade. While Europe had the highest rate of reporting, replies received were still very low. Out of the 43 Governments to which the questionnaires were addressed, only 17 responses were received, with only 11 questionnaires being complete. Nine national institutions, 23 non-governmental organisations and 13 institutes or universities replied. In response to calls for information for the ‘Study on the followup to the United Nations Decade for Human Rights Education’, prepared by the High Commissioner for Human Rights, only seven governments, one chairperson of a treaty body, and three national institutions replied. In response to the request of

27

K. Fujii, ‘UN Decade for Human Rights Education – Report on the 59th Session of the UN Commission on Human Rights’ <www.hrea.org/decade/HRE-CHR-2003.pdf>, visited on 1 November 2003.

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CEES FLINTERMAN AND STACEY NITCHOV international and regional intergovernmental organisations to provide a written statement, one organisation replied.28 While member states of the United Nations have unanimously proclaimed the United Nations Decade for Human Rights Education and have ratified human rights treaties that contain provisions relating to human rights education, governments still remain unclear that they have treaty obligations with regard to human rights education. The mid-term evaluation revealed that effective national strategies for human rights education in the first half of the Decade have been rare. There has been a lack of political will to implement the objectives of the Decade. Lack of funding to implement activities in connection with the Decade has been a major drawback affecting performance at every level. There is an enormous gap between the obligations made under the Decade and the resources available. For the OHCHR to stimulate human rights education at the national level, financial resources are necessary to coordinate workshops, seminars and publications. Although the OHCHR was given the responsibility to coordinate and implement the Plan of Action for the Decade, no additional finances were assigned to it. To carry out activities relating to the Decade, the OHCHR relies on unreserved voluntary funds. Activities relating to the Decade must compete for resources with other priorities of the OHCHR.29 2.2. Should the Netherlands support a second Decade for HRE? In the last session of the Commission on Human Rights held in 2003, various nongovernmental organisations came together in support of Costa Rica’s proposal to launch a second Decade. In the report of the Sub-Commission on the Promotion and Protection of Human Rights in August 200330, the Commission was invited to recommend that the General Assembly proclaim a second United Nations Decade for Human Rights Education beginning on 1 January 2005. Barriers affecting the success of the first Decade must firstly be addressed in order to make a second United Nations Decade for Human Rights Education worthwhile. A second Decade must be properly structured and be formulated in realistic terms. The minimum action required by each country accompanied by indicators for evaluation of success must be set up. A regular reporting system by governments also needs to be established31. Furthermore, increased funding must be made available so that countries can meet the requirements set out in the Plan of Action. The importance of setting up a voluntary fund for human rights education has been repeatedly mentioned in a number of United Nations documents.32 Without

28

UN Doc. (E/CN.4/2003/101), 28 February 2003, para. 4(a). Supra note 17, para. 128(d). 30 UN Doc. (E/CN.4/Sub.2/2003/L.14), 7 August 2003, para. 5. 31 Supra note 27, para. 10. 32 E.g. UN General Assembly Resolution (A/RES/49/184), 23 December 1994, para. 9; Commission on Human Rights resolution 1994/51 Proclamation of a decade for human rights 29

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HUMAN RIGHTS EDUCATION IN THE NETHERLANDS appropriate funding organisations can not move forward with implementing the Plan of Action and the value of proclaiming a second Decade will be significantly diminished. The Netherlands should support the call for a second United Nations Decade for Human Rights Education. Human rights education is an ongoing process and it is important that the progress made in the first Decade is not lost by a diminution of commitment and international support. Proclaiming a second Decade for Human Rights Education will represent the commitment of the Netherlands and the rest of the international community to continue the pursuit of human rights education. It will provide all member states with the opportunity to build upon the lessons learnt from the first Decade. Those who have supported the first Decade can continue to work on their goals and extend the programs set up under the first Decade. Governments that did not give much support to human rights education in the first Decade can benefit from the experiences of other countries33. However, for a second Decade to have an impact in the Netherlands, it is imperative that the Dutch Government increases their level of involvement. A second United Nations Decade for Human Rights Education will give the Netherlands the structural framework and incentive to establish an effective and coordinated national approach to human rights education. The possibility of a second Decade is open for discussion at the session of the Commission of Human Rights in 2004. For a second Decade to start in 2005 the Commission must adopt a resolution in April 2004 and the General Assembly must endorse it in September. Most members support the idea; the financial and legal obligations that will be created are the biggest inhibitors of member states giving their support.34 3. Conclusion The United Nations Decade for Human Rights Education and the Plan of Action calls on member states to increase efforts relating to human rights education and to set up a comprehensive national approach. While much can be seen to be occurring in the Netherlands regarding human rights education in general, these projects are not directly related to the United Nations Decade for Human Rights Education. There is a lack of commitment and support from the Dutch Government to set up collaborative projects or to stimulate the position of human rights education. No government ministry has stepped up to take control of implementing the obligations set out in the Plan of Action and to coordinate the different organisations in the Netherlands which are involved in human rights education. Participation in human education (4 March 1994) para. 2; UN Doc. (A/51/506), 16 October 1996, para. 8; and (A/51/506/Add.1), para. 51. 33 Supra note 27, para. 9. 34 Note: A second Decade was not declared. Instead there is currently a World Programme for Human Rights Education. See .

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CEES FLINTERMAN AND STACEY NITCHOV rights education is mainly limited to sponsorship of outside initiatives. The lack of Government collaboration, coordination and commitment to take a leading role in the implementation of the Plan of Action has led to human rights education within the Netherlands not reaching its full potential. Without maximum support and cooperation from the Government, the objectives outlined in the Plan of Action cannot be fully met. For human rights education to reach its full potential in the Netherlands, a national focal point should be created to assess the needs of human rights education in the Netherlands. This national focal point should establish a national plan to determine strategies to be undertaken within the Netherlands. A national resource and training centre is also needed to manage human rights education resources and to allow for easy access to human rights education resources and training materials. The United Nations Decade for Human Rights Education has been met with limited success. Barriers affecting the success of the Decade include the weak monitoring capacity of the OHCHR, the apathy of member states to fulfil their obligations under the Plan of Action, and the lack of funding to implement activities in connection with the Decade. While the first Decade did not reach all of its objectives, it has laid the groundwork for more positive action to be undertaken. The Netherlands should support the call for a second United Nations Decade for Human Rights Education. If a second Decade is not proclaimed it is very likely that the progress made in the first Decade will be diminished. A second United Nations Decade for Human Rights Education will give the Netherlands and other member states the opportunity to gain from the lessons learnt in the first Decade. Information and resources collated in the first Decade can be shared, and partnerships and networks can be built upon. With proper structuring and funding, a second Decade for Human Rights Education will provide the Netherlands and other member states with the incentive and information to set up an effective and coordinated national approach to human rights education. Human rights education is a continuing process. The role of human rights education in strengthening respect for human rights and fundamental freedoms is unquestionable. To ensure that each individual in society is exposed to the teachings of human rights principles it is essential that a focus on human rights education at the international, regional, national and local levels be maintained. The United Nations Decade for Human Rights Education emphasises the importance of such education in promoting understanding among nations and the maintenance of peace. The objectives espoused under the United Nations Decade for Human Rights Education should be given full international support and attention until the end goal of the Decade is achieved, which is to collate and distribute a comprehensive collection of human rights education materials throughout all member states and to secure effective national capacities for human rights education worldwide.

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS DURING THE ACTIVE HOSTILITIES OF INTERNATIONAL ARMED CONFLICT IN INTERNATIONAL HUMANITARIAN LAW David A. G. Lewis* This article is presented with my gratitude to my esteemed former teacher and supervisor Professor Emeritus Göran Melander for his wisdom, guidance, and leadership during my studies at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law 2001–2003. This article is based on research which was prepared and conducted at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law, Lunds Universitet, Lund, Sweden; and the International Institute of Humanitarian Law, San Remo, Italy, August–October 2002 Introduction This article will explore the possibilities presently available for the protection of civilian educational institutions in International Humanitarian Law (IHL) during the hostilities of international armed conflict. The article will examine these legal mechanisms for protection in five distinct categories: I. The general legal protection of Civilian educational institutions as civilian objects or containing protected persons; II. The legal protection of the Civilian educational institutions or their contents by, with reference to, or with inference from cultural property protections; III. The legal protection of Civilian educational institutions in connection with states general legal obligation to educate the civilian population in IHL; IV. The legal possibilities of Red Cross Provision of Civilian Education Institutions during International Armed Conflict (IAC);

*

David Lewis is a Doctoral Candidate and member of the Finnish Graduate School of Human Rights at Abo Akademi University Institute for Human Rights. He holds an LLM in Human Rights Law from The Raoul Wallenberg Institute and a second LLM in European Law from Lunds Universistet. Mr. Lewis has trained extensively in matters realted to the Law of Armed Conflict. He has recieved civilian, military, and multi-national training in this field. The current work forms a part of larger research study concerning the Economic, Social and Cultural Dimensions of the Law of Armed Conflict. 99

DAVID A. G. LEWIS V. The legal Protection of Civilian educational institutions in Specially Provided IHL Zones. Although there exist special IHL provisions relating to the possibility of the protection of educational institutions in non-international armed conflicts and during an occupation regime this article will be restricted to dealing with general and special protection of civilian educational institutions during the hostilities of an international armed conflict. It also will not address special religious educational facilities such as Sunday schools since in addition to the protections described in this article they may be subject to supplementary protections. Within the above framework the article will evaluate the protection of educational institutions’ facilities from the narrowest possible perspective to its wider meaning. It will examine protecting narrow and specific types of schools or places of instruction, for instance those providing education in the Law of Armed Conflict (LOAC), ordinary civilian schools and universities. It will also deal with the wider meaning of educational institutional facilities within cultural property protections or institutions containing that property which provide educational services such as museums or libraries. While the protection of educational institutions in conflict situations may contribute to the implementation of the “Right to Education” in time of conflict it should not be taken to be analogous to the protection of the ICESCR Human Rights, “Right to Education”. This article will consider and identify the means and mechanisms available to affording international legal protection to the buildings or facilities1 of the educational institution, rather than addressing the protections or available to persons benefiting from education, the continuance of education in wartime, or the education itself and its contents. 1. The General Legal Protection of Civilian Educational Institutions as Civilian Objects or Containing Protected Persons The right of belligerents to adopt means of injuring the enemy is not unlimited.2

1

Throughout the article the terms facilities, institutions, educational institutions, structures, and buildings for education will be used interchangeably to mean the buildings or structural components making up the facility for the educational institutions and their immovable nonliving contents. The plethora of terms shall not have any of their other potential or ordinary meanings in relation to education. However it should be understood that sometimes, especially in relation to cultural property it is the educational nature of the structure which protects the facility or affords it a higher degree of protection rather the general protection of the civilian object itself. 2 Texts of Conventions cited from Schindler, Dietrich, and Jiri Toman (Eds.), The Laws of Armed Conflicts A Collection of Conventions, Resolutions and Other Documents 3rd Edition (Henry Dunant Institute, Genève, 1988), and Roberts, Adam and Guelff, Richard, Documents on the Laws of War 3rd Edition (OUP, Oxford, 2000): Article 22, Hague Convention II 1899, Hague Convention IV 1907.

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS Article 25 of both the 1899 Hague Convention II and the 1907 Hague Convention IV, respecting the laws and customs of war on land provide: The attack or bombardment, by whatever means, of towns, villages or dwellings, or buildings, which are undefended, is prohibited.3 Since 1899 and 1907, when The Hague Conventions which emanated from customary international law took force, there has been a been a legal basis enshrined in treaty law rendering certain civilian objects immune from the perils of attack and bombardment. Although institutions of education are not expressly included in the non-exhaustive list they will be protected so long as they are undefended buildings. Article 23(g) of the Hague Convention IV further provides that it is especially forbidden: To destroy or seize the enemies property, unless such destruction or seizure be imperatively demanded by the necessities of war. This provision has the effect of offering a general protection to most civilian objects, including educational ones. The provisions in Chapter II of Additional Protocol I4 provide an extension of this principle and cover more comprehensively the protection of civilian objects and persons and the military necessity exceptions from affording such protection. The majority of the provisions enshrined in AP1 are widely considered as customary law and binding on non-state parties. Within the definitions of civilians in AP1 educational institutions will be civilian in character so long as their primary purpose is for the education of the civilian population.5 These educational institutions will not only include those normative civilian educational structures but also those that are improvised on an ad hoc or temporary basis. The civilian status in AP16 is conferred on those people who are not referred to in Article 4A of GCIII as potential prisoners of war and for state parties accepting the entire text of AP1 all those listed as combatants in Article 43.7 Additionally, if a civilian educational institution were to contain either guards, or for wartime education some military personnel, AP1 Art. 50(3) provides that the presence of such people cannot be used to deprive the institution of its civilian character and resultant protected status. Obviously this type of allowance would be subject to proportionality as to the amount or ratio of the military presence to that of the civilian educational staff or students. 3

The same sentiment is echoed in article 1 of Hague Convention IX for Naval warfare and article 22 in the 1922 Hague Rules for Aerial Warfare that are widely regarded as having a customary character. 4 Also referred to as AP1. 5 Art. 50 AP1. 6 Art. 50 AP1 also for non state parties to AP1 see GCIII Art.5. 7 AP1 Art 43 and Art.44 are not always regarded as forming a customary norm. There are a few persistent objectors, amongst them the United States and Israel.

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DAVID A. G. LEWIS The first principle that must be applied to civilian educational institutions is one of distinction.8 The enemy must at all times distinguish between civilians and combatants, and civilian objects and all legitimate military objectives. Indiscriminate attacks that strike military and civilian objects without distinction are in all circumstances forbidden.9 Educational facilities, their civilian contents, and those civilians that attend them would benefit from the protection afforded by the principle of distinction. Civilian objects or persons can never become the object of 10 reprisals. Educational institutions that are civilian in character benefit from this immunity from reprisal. Where there initially arises a question of identification as to whether an object is military or whether it is civilian or civil defence in nature it will be the burden of the attacking party to show that it is a legitimate military objective: Military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time offers a definite military advantage. It is generally accepted in what is known as the 'Rendulic Rule' that military necessity will be determined subjectively according to the circumstances ruling at the given time.11 It is important to take account of the fact that during a course of a given conflict the status of educational institutions may be subject to rapid fluctuation. For instance the former school may be used as a facility to house troops and would become a legitimate military target. However parties to a conflict should still prefer objects that are totally military both in structure and contents to those that are a civilian structure that has become or contains legitimate military objectives.12 This proportionality is so as to minimize damage to objects that belong to and can in the future potentially again be employed by the civilian population. Also, if doubt arises as to whether the structure is used for military purposes such as in a mixed or hybrid facility, Additional Protocol 1 provides: In case of doubt as to whether and object which is normally dedicated to civilian purposes such as a…. school is being used to make an effective contribution to military action it shall be presumed not to be so.13

8

51(1), 52(1), 57(1). AP1 Art. 51(4) 10 AP1 Articles 51(6)and 52(1) 11 Rendulic Rule cited from Alonzo, David Michael, Methods and Means in Grey Zone Conflicts (Dansk Rode Kors, Kobenhavn, 2001). 12 AP1 Art. 57 (2)(a) ii, iii; AP1 57(2)(b). 13 AP1 Art. 52(3). 9

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS To keep account of the present status of objects is a necessary precaution to be undertaken by parties in relation to both the obligation to distinguish and precautionary measures.14 For instance a vacant military barracks may be improvised by desperate civilians or civil defense as an interim educational facility. There exists no presumption of civilian status to the effect that when a doubt arises whether a facility normally and clearly dedicated to military purposes, potentially, might now be used for civilian purposes.15 There also exists no presumption of civilian status for objects that could normally be used for either civilian or military purposes. States must apply greater precaution to discerning whether an object is in fact at a given time indeed used for military purposes. This obligation applies particularly to targeting objects such as barracks that may be either civilian or military in usage and other objects that might have been abandoned or been transformed from military usage to safeguarding civilian activities such as education. Unclear or hybrid objects where the normal purpose cannot be easily discerned may still be subject to the benefits of the Art. 52 civilian presumptions and must also benefit from additional precautions. To become a legitimate object of attack the object must make, in the present tense, an effective contribution to the military cause or otherwise it will be a protected civilian object under Art. 52(1). An abandoned or transformed object such as an improvised barracks would not usually fulfil this threshold of necessity even if they once were military in character. One scenario should be offered where such a barracks or for that matter any educational facility under general protection may become the object of military necessity without being at all military in character or educating military persons. If utilising or destroying the structure will offer a defensive advantage such as preventing the onslaught of tanks or blocking an imminent invasion, an additional protection of precaution is offered by AP1 Art. 57(3), which requires the prioritisation of objects offering a similar military advantage depending upon their proximity or potential to cause detriment to the civilian population. This rule would make the facility a legitimate target only if in the circumstances prevailing at the time it seemed that the destruction of the educational structure of civilian character was amongst the only means available of repelling the attack and thus subjectively16 became imminently necessary, and would thus negate the requirement of an explicit military character of the objective. Even if this scenario came into play there remains an obligation to give an effective advanced warning, so that the educational institution can be efficiently evacuated, unless the circumstances do not permit.17 Another important situation to evaluate is where an educational facility is placed in a barracks or military structure by a party to the conflict seeking or intending to protect the military installation from attack, possibly with a view to future usage. It is provided in article 48 of the Fourth Convention that: 14

AP1 Art. 52 and Art. 57. AP1 52(3). 16 Rendulic Rule, supra note 11. 17 AP1 Art. 57(2)(c). 15

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DAVID A. G. LEWIS The presence of a protected person may not be used to render certain points or areas immune from military operations. To purposely locate wartime educational institutions in areas of military operations with a view to safeguarding military objectives would be a violation of the responsibilities of the party in whose hands the protected persons and or objects may be.18 Additionally, states will be obligated to remove the civilian population from the vicinity of military objectives and to avoid situations of mixing military and civilian persons or objects. The state must take measures to make it easier to distinguish protected persons and objects. While the presence of a military person inside or in the vicinity of an educational institution will not negate the civilian character of the institution, positive measures should be taken to avoid this scenario occurring. States have the obligation to endeavour to remove the civilian population and objects from the vicinity of military objectives and to protect civilians and civilian objects from dangers arising from military operations.19 In conflict situations states may rely on the special protected status of civil defence to effect these provisions and if necessary evacuate or relocate educational institutions away from conflict areas.20 Additionally states must in peacetime as well as war avoid locating military objects within or with proximity to densely populated civilian areas.21 2. The Legal Protection of The Civilian Educational Institutions or Their Contents By, With Reference To, or With Inference From Cultural Property Protections The many exceptions discussed above in relation to military necessity and resulting confusions that can relate to the distinction of an educational object make it preferable to use special protection regimes such as cultural property protection, IHL education protections, and Red Cross and special zone protections. However because special protection regimes can be much narrower in coverage, certain objects, for example improvised educational facilities similar to the example of the barracks might never or only rarely benefit from these specialised protections and the above general protection will be all that is available to them. Special protections are afforded because of the special nature of the activity in or value of the facility or 22 structure, rather than being based only on its civilian character. Specially protected objects have the ability to be specially marked, sometimes registered, and are more easily identifiable then general objects and hence more distinct. Specific instructions for the protection of personnel and preparation for hostilities during peacetime also sometimes accompany special Protections Conventions. The question to be 18

GCIV Art. 29. AP1 Art. 58(a) and (c). 20 AP1 Arts. 61–67. 21 AP1 Art. 58(b). 22 However, the civilian character is vital to obtaining and the continuance of special protections. 19

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS addressed is whether educational institutions are entitled or sometimes can become entitled to this added protection. 2.1. Traditional Associations, Customary Law, and Constructing Law by Analogy On the few occasions that the protection of educational institutions are expressly mentioned in IHL treaties their protection is almost always included in a listing of other forms of moveable and immovable cultural property. 23 The most important conventions and general protections for cultural property do not include express reference to educational institutions.24 It is possible that the protection of educational institutions may be deduced from the general context and character of cultural property conventions and their long-standing association with protected cultural property that dates from 1863 and the beginnings of the modern LOAC.25 Any claim to such a customary legal norm of association with cultural property and the resulting protection would also require examples of consistent state practice as regarding educational institutions as specially protected beyond that of normal civilian objects and an evaluation of any persistent objections.26 Another long standing provision for the protection of Cultural Property that might include education and contribute to the affording of special protection to educational institutions is Art. 27 of the Hague Regulations IV of 1907 and a similar provision for Naval bombardment in Art. 5 of Hague IX. These provisions require that ”in sieges and bombardments all steps must be taken to spare as far as possible buildings dedicated to… charitable purposes”. The protection is made contingent on the premise that the structure is not used for military purposes and that notification to the enemy and demarcation of the buildings has been fulfilled. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 195427 specifies that the Hague Regulations are supplementary and that the emblem of the blue shield specified in Art.16, HCP1954 shall be substituted for the emblems of demarcation in the previous regulations. The meaning of charitable purposes is never defined within the ambit of any IHL convention. It seems the insertion of this clause may be applicable to offering a special protection for educational institutions so long as they are for ”charitable purposes.” A favourable interpretation would be the modern construction of charity, which is often defined by those services offered on a not-for-profit basis. Using this very favourable definition of charity most educational institutions could be subjected to special 23 Section II of the 1863 Lieber Instructions, Art. 53 Oxford Manual 1880, Article 56 Hague II 1899 and Hague IV 1907, Roerich Pact. 24 The 1954 Hague Conventions and two protocols, and the 1972 UNESCO World Heritage Convention. 25 Section II of the 1863 Lieber Instructions contains a listing of educational institutions and establishments alongside cultural property. 26 Art. 38 of the Statute of the International Court of Justice: State practice is available in this area but warrants long discussion. 27 Also referred to as the Hague Convention when cited alone and 1954HCP.

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DAVID A. G. LEWIS protection under this provision. Certainly all state educational facilities are typically run on a not-for-profit basis. Only a few private institutions that are run for profit or commercial gain, mainly at the post-secondary level would escape protection and be subject only to the general protections of civilian objects. If educational institutions are specially protected, since the Hague Regulations, as charitable in their purpose, this status would lend further credibility to the assertion of a customary association in IHL with the protection for cultural property. If one supposes that institutions devoted solely to educational purposes, which do not contain, nor are their structures a form of cultural property are not the subject of special protection, whether customary or by treaty, it is still worth examining the special status of cultural property for their protection. Using a construct called ”law by analogy” one can look at the content and character of the protection of cultural property and construct a protection for educational institutions by the analogy of function and purpose.28 Libraries and museums which are specifically protected in the 1954 Hague Convention for the Protection of Cultural Property provide education and the purpose of their moveable contents is educational. In essence cultural property is inherently educational whether preserved for historical or heritage awareness or for purposes of general education. In this way normal educational structures may be seen to be analogous in purpose to treaty based specifically protected types of cultural property, the only difference being that the education they provide is wider and more general in content. It should be clear though that the law on the protection of cultural property seeks to protect a form of educational materials even if these materials of education are irreplaceable structures or objects. The law by analogy concept does not rely on or afford special protection on a firm customary or treaty basis but rather would afford education a special protection through a safety net used by states to avoid violations in areas of uncertainty. Many states will use this type of analogous construction and consideration when deciding on targeting or drafting their Rules of Engagement.29 2.2. Hard Law Cultural Property Protection Provisions If a customary norm of association can be established or law by analogy is employed then it is probable that the entirety of educational establishments can be specially protected by the Hague Convention 1954 on the Protection of Cultural Property in the Event of Armed Conflict. Even if it is not accepted that there is a hard law30 construction for protecting the institutions then certain elements of these institutions may still be candidates for protection or special protection under the 1954 Hague Convention or enhanced protection under the 1999 Second Hague Protocol. The scope of the 1954 Hague Convention covers a listing of cultural objects and buildings that are of “great importance” and also those of “interest”. Both constructions, particularly the wider “interest” could include certain educational 28

Lecture by Col. Geoff Corn, US Army, IIHL, San Remo. The United States of America is one such state. 30 Deriving from the legal sources in Art.38 of the Statute of the International Court of Justice. 29

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS structures, their contents, or those that provide educational service in the broader definition of education.31 Often even generic primary and secondary schools or universities will contain protected or potentially protected32 objects, buildings, and facilities such as libraries or museums and their exhibits. Deriving from the protected contents of an educational building it may be possible to protect the entire building as a shelter for moveable cultural property.33 Further, even if educational institution’s facilities are not protected through customary association, analogy, or explicit reference in HCP1954 Art. 1, the parties to a conflict may at their prerogative or at the initiation of the ICRC, The International Committee of the Blue Shield, or UNESCO agree to treat educational institutions as specially protected as cultural property within the scope of the Hague Convention.34 Such an agreement on treatment would give examples of state practice providing further impetus to/for the formation of a customary rule of association. There are many advantages to attempting to protect educational institutions under the 1954 Hague Convention rather than the general protection afforded to civilian objects. Educational objects that are specially protected would be subject to a higher threshold of precaution, imperative military necessity and proportionality before becoming a legitimate military target.35 The addition of the word “imperative” requires a higher degree of necessity than general protection of civilian objects. Also following the logic contained in AP 1 in respect to targeting and now in Art. 7 of the Second Hague Protocol, areas containing convention-protected objects that meet the threshold of imperative military necessity will be targeted only after others offering a similar military advantage and subject to only general protection.36 Provided there is no imperative military necessity that warrants targeting priority associated with the property, then the property must enjoy the respect of the parties and be free from all abuse.37 The determination of precautions, imperative military necessity, and proportionality is left to the determination of the parties to the conflict potentially with the advice of protecting powers or UNESCO or other competent international organization.38 The Convention places both negative and positive obligations on parties to ensure the safety and security of the property concerned. For purposes of distinction the property protected in art.1 of the 31 The Definition of Cultural Property in Article 1 HCP 1954 is very wide, covering not only objects of great importance for cultural heritage religion but objects merely of interest. Also Art. 1 (a) and (b) cover objects that will probably be part of many educational institutions. These are very wide and subjective definitions. 32 Some convention objects and types of protection require declaration, notification, and or registration. 33 HCP 1954 Art. 1 (b) and (c). 34 HCP 1954 Articles 23 and 24. 35 HCP 1954 Art. 4 (2) and Art. 7, Second Hague Protocol. 36 AP1 Art. 57. This statement refers to an extension of the rules for prioritisation of targeting. Presumably specially protected objects will be the last to be targeted as areas of a general civilian protection will probably have a lower threshold. 37 HCP 1954 Art. 3. 38 HCP 1954 Articles 21 and 23.

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DAVID A. G. LEWIS 1954HCP may also be adorned with the distinctive convention emblem of the blue shield to signify its convention status.39 Since the discretion of discerning the specific objects that fulfil the criteria for Art.1 of the Hague Convention is left to state parties there are wide possibilities for the application of the Convention to education institutions of great importance or interest and their respective moveable contents. The Convention also offers the possibility of a status of “special protection” for immoveable and certain moveable cultural property, requiring the placing of such property that must be of the higher threshold of “very great importance”, as opposed to merely “great importance” on a special international register. This requirement means that the property will clearly have to meet some international scrutiny in discerning its importance and would probably exclude the possibility of extending this protection to educational institutions of a more general nature. However historical institutions such as the Colleges of Oxford or Cambridge or the Bodleian library would definitely meet the tougher international scrutiny. The Convention also requires the party undertakes that the property will not be used for any military purpose and makes the special protection contingent on the removal of any potential military objects in the surrounding areas that would normally be legitimate targets, or a guarantee that these military objectives will not utilised during the conflict.40 This provision is the primary reason why most states have placed very little or no cultural property under HCP1954 Art.8 “special protection” despite its very great importance and resulting entitlement.41 Contingent on these tough parameters the convention grants total immunity from any military interference by either party to a conflict.42 The “special protection” ceases at any juncture when the cultural property or its surroundings are used for military purposes.43 Despite any determination seemingly releasing the party from the obligation to treat with higher cautions property under “special protection” (for instance military usage of the vicinity) the property would still be the subject of HCP1954 Art.1 convention status and HCP 1954 Art. 3 respect and the requirements for standard convention protection outlined above. Cultural Property placed under “special protection” will have the blue shield of Art.16 of the Convention in triplicate.44 Cultural Property under “special protection” is entitled to a greater threshold of military necessity than standard convention protection, requiring “unavoidable military necessity” before it may be the subject of attack in a situation where it is not used for military purposes. The determination of necessity must be given from an

39

HCP 1954 Arts. 6, 16, and 17. HCP Art. 8(5). 41 Toman, Jiri, The Protection of Cultural Property In The Event of Armed Conflict (UNESCO, Dartmouth, 1996), pp. 108, 109. 42 HCP 1954 Art. 9. 43 HCP 1954 Art. 11(1). 44 HCP 1954, Art. 17. 40

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS officer commanding a force equivalent to a division or larger.45 Unavoidable necessity would imply that there is no discretion to attack and because of the immediacy any object that has been determined to require unavoidable necessity will inherently have already surpassed the precautionary and proportionality tests. Unfortunately despite the international register for special protection both the ultimate determination of a military presence negating special protection or an unavoidable military necessity is left subjectively to the parties to the conflict. There are three remaining international treaty possibilities that offer a higher degree of protection than standard 1954HCP protection and 1954HCP “Special Protection”. However each of these mechanisms is particularly narrow in application and would cover only a very selective category of incredibly important educational facilities. The first type is enhanced protection as provided for in Chapter 3 of the Second Hague Protocol 1999. To qualify, the property must be cultural heritage that is of the greatest importance for humanity, it must be adequately protected by domestic legislation, and not be used for military purposes.46 The requirement of importance for humanity takes away any national subjectivity which may be used in granting regular or “special protection” statuses and subjects any given assertion to full international scrutiny. A submission by a state is scrutinized by a committee who takes opinions from experts in cultural property protection.47 If an object is granted enhanced protection it may only be attacked if it is used for military purposes and thus becomes an objective, never merely for any form or degree of military necessity.48 The use for military purposes also may result in the cancellation or suspension of the enhanced status by the committee.49 It is probable only a few institutions of education of irreplaceable historic value in their structures will qualify. Most will probably be parts or selected buildings in the older traditional universities such as Bologna, Oxford, Cambridge, and the Vatican Schools. The second method of narrow cultural protection is afforded by the UNESCO World Heritage Convention 1972. To be protected by the convention an educational institution must contain: Groups of separate or connected buildings which because of their architecture, their homogeneity or their place in the landscape are of outstanding universal value from the point of view of history, art, or science.50

45 In most cases this will be at least a Brigadier, Major General or Lieutenant General. Given the developments in International Criminal Law it is these people who will at the end of hostilities probably face scrutiny and possibly international prosecution for the behaviour in combat. 46 HSP 1999 Art. 10. 47 HSP 1999 Art. 11. 48 HSP 1999 Art. 13. 49 HSP 1999 Arts. 13 and 14. 50 WHC 1972 Art. 1 and Art. 2.

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DAVID A. G. LEWIS This very narrow category of qualification is to be determined by the state parties and submitted to international registration on the World Heritage List.51 The subjective determination of importance in a state’s nomination and submission is wider than the importance to humanity requirement in the Hague Second Protocol enhanced protection, however the range of sites that states could fit within the World Heritage Convention definition is much narrower and restricted to immovable cultural objects. The Convention provides protection from states taking ''deliberate measures which might damage directly or indirectly the cultural and natural heritage” referred to in the Convention.52 This entitles them to basic immunity from operations and places them at risk only to being collateral damage where a state has observed every precaution not to make them the subject of an attack and the prioritisation of every other target that would not risk damage to the site. The insertion of the word might is very important to the extreme protection since states cannot even embark on a target that they suspect might harm these sites. Objects that are classified as World Heritage sites also benefit in times of armed conflict from being able to be on a register of World Heritage Sites in Danger and the resulting international cooperation to save them and repair them.53 The sites may also bear the World Heritage symbol for identification.54 Durham University in England in respect to its Castle Green and Cathedral is one such educational site that is on the World Heritage List and qualifies for its protection. The last narrow provision offering one of the highest degrees of protection is Art. 53 of the Additional Protocol 1 of 1977. The provision protects historic monuments, works of art, and places of worship, which constitute the cultural and spiritual heritage of peoples.55 This article has practically no application in relation to educational institutions or their contents but may still affect some minor structures or cultural property within them that meet this particularly high threshold. To be protected it must constitute the spiritual heritage of peoples and must fit into the narrow categories of monuments, works of art, or places of worship. The article prohibits all acts whether causing damage or not against these objects. For parties to the 1954 Hague Convention it toughens the protection for these objects by using the AP1 art. 52(2) threshold of military objective.56 For non-parties to the 1954 Hague Convention attacks in all circumstances are forbidden without exception. It similarly forbids the use of these objects in the military effort. It is doubtful many pieces of cultural property within educational institutions or otherwise will benefit from this narrow list and high threshold to be entitled to protection. 51

WHC 1972 Art. 3. WHC 1972 Art. 6(3). 53 WHC 1972 Art. 11. 54 Adopted at the Second Session of the World Heritage Committee. 55 AP1 Art. 53(a). 56 Toman, Jiri, supra note 41, p. 389: This article must be applied without prejudice to the 1954 Hague Convention, which contains a waiver of protection for military necessity but must also be applied within the Protocol framework and the Art. 52(2) definition of a legitimate military objective. 52

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS In 1935 the Organization of American States created the regional treaty entitled The Roerich Pact. It is binding on 11 states in the Western Hemisphere.57 The Roerich Pact is unique in that it is the only comprehensive cultural property convention that mentions educational institutions as specifically protected. It is also the oldest stand-alone cultural property convention leading to a certain presumption of value for the establishment of customary or regional customary norms. The Roerich Pact provides that the following immovable objects must be respected and protected: Educational and Cultural Institutions and their moveable property when located inside the structure.58 Educational Personnel are also accorded protection.59 A distinctive flag of three red circles in a triangular formation is provided for identification.60 An unlimited number of institutions may be registered with the Pan American Union (OAS) for their respective protection. The only factors upon which protection is based is the compulsory registration, and that the structure is not used for military purposes.61 Significantly, there is no condition in the Roerich Pact allowing for an exception by reason of military necessity.62 The absence of allowance for military necessity makes the Roerich Pact the most complete and comprehensive legal protection that is available for the protection of educational institutions. The scenario posed above where the building is necessary for defensive purposes or must be removed from a place of operations which is sometimes permissible with general civilian protection, regular Hague Convention protection, and “special protection” is not applicable. The Roerich Pact is far wider in application than any other Treaty mechanism granting near total immunity and covering all educational institutions, opposed to the very narrow higher protection constructions under Second Hague Protocol Enhanced protection, UNESCO World Heritage Convention, and AP1 Art. 53. The Roerich pact is certainly the most important instrument for the Americas and offers an important start to the construction of a customary norm if world state practice has adhered to or will follow the Pact, which at present is unfortunately quite doubtful. However the continued legal existence of the Pact, having never been repudiated, adds impetus to the assertion that there is a historical customary association between the general protection of cultural property and educational institutions and is certainly still a strong regional standard. 57

Ibid, pp. 18, 19. Roerich Pact 1935, Art. 1. 59 Ibid. 60 The pact is supplementary for signatories of both the Pact and the 1954 Hague Convention and the Hague Emblem is to be used in place of the Roerich emblem where both have been ratified. However HCP 1954 Art. 36 provides wording inferring that for dual ratification educational institutions will still use the original Roerich emblem unless and in circumstances where educational institutions are deemed to be covered by the Hague Convention 1954 as discussed above. 61 Roerich Pact 1935, Arts. 4 and 5. 62 Toman, Jiri, supra note 41, p.18. 58

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DAVID A. G. LEWIS 3. The Legal Protection of Civilian Educational Institutions in Connection With States General Legal Obligation to Educate the Civilian Population in IHL While there is no right to general education for civilians in International Humanitarian Law there is an obligation upon states to undertake to the fullest extent possible the education and dissemination of the contents of the Geneva Conventions and Protocols.63 This obligation to educate and disseminate in tandem with the obligation to respect and ensure respect of the conventions in all circumstances64 can be used to formulate a implied basis for additional protection for institutions of education fulfilling or with capacity to fulfil this special role. It should be noted that states are obliged to educate the LOAC to both military and civilians during peacetime as well as in conflict.65 It is unlikely that most states make adequate provision in their peacetime programs of education, if they exist at all, necessitating stronger teaching in wartime. The particular circumstances of a given conflict and the heightened appreciation of the importance of IHL topics amongst the population in war add to the importance of the states' commitment to educate during time of armed conflict. This importance in turn should yield a special protection to educational institutions that provide IHL instruction. The formulation and inclusion of the obligation to educate and disseminate in the conventions recognizes that this is necessary to fulfill the obligation to ensure their respect and also to effectively protect the vital interests of a population. Knowledge of IHL is vital for civilians in time of war since it enunciates the entitlements to protection mechanisms. Civilians must be aware of these entitlements so as to be able to demand their application and effectively respect the many duties incumbent on their civilian status. Civilians should also be able to understand the proper application of the conventions and recognition of violations since they often provide a pivotal record of a conflict that can later be used not only for educational purposes but also for the attribution of state and individual criminal responsibility. They also may be able to use political, media, or other forms of persuasion to contribute to the proper application of IHL or to cause a state to desist from its violation(s). The knowledge of IHL that leads to the civilian demand for enforcement of protections, the respect of their non-combatant duties, and the recognition of violations and flawed application of IHL must be considered vital for the survival and functioning of the wartime civilian population. Since that knowledge must be conveyed in an institutional forum the protection of that forum or institution would be necessary for the survival of the civilian population. Article 54 of AP1 prohibits attacks on and specifically protects structures vital to the survival of the civilian population subject to an exception for military necessity. The article presents a suggested list of structures offering this type of sustenance value to the civilian 63

GCI-IV respectively Arts. 47, 48, 127, 144; AP1 Art. 83. Common Article 1 GCI-IV; AP1 Art.1(1). 65 GCI Art. 47; GCII Art. 48; GCIII Art. 127; GCIV Art. 144; AP1 Art. 83; AP2 Art. 19. 64

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS population, which could for the above reasons include institutions that provide sustaining knowledge of the LOAC. While agriculture is specifically listed and educational institutions are not, a civilian could not effectively invoke nor demand protection for their foodstuffs in light of ignorance of their rights. The apparatus of ordinary educational structures and institutions will become vital to the effective dissemination of IHL in time of war. If the normal education structures and institutional base of civilian education disintegrates or is destroyed in conflict, the primary and optimum means of communication of IHL between the state, civil defence forces and civilians will be lost. Civilians will be better served by, have better access to, and be more comfortable with a normative or familiar structure rather than a structure set up on an ad hoc basis in time of war such as an ICRC tent. States have accepted from the general character of GCIV and AP1 that the maintenance of the normative or familiar civilian structures is to be a priority. It should be recognized that one of the reasons for the need for the maintenance of the normative civilian structures, including educational structures, is that these structures and facilities will often prove to be the most effective in implementing any states obligation to educate and disseminate IHL. Accordingly these invaluable normative venues for IHL education should be placed under some degree of recognition and special protection or run through the ICRC, Federation or National Red Cross or other institution or organization entitled to provide them such deserved protections. 4. The Legal Possibilities of Red Cross Provision of Civilian Education Institutions During International Armed Conflict The first Geneva Convention, in Art. 44 permits: That the international Red Cross Organizations and their duly authorized personnel shall be permitted to make use, at all times, of the emblem of the Red Cross on a White ground.66

The importance of this provision for the protection of education is that it enables the Red Cross to assist in the establishing, maintenance, and protection of educational facilities in wartime. Since the total immunity conferred by the emblem will be conferred upon the organisation’s activities any educational facilities that are set up or adopted by the ICRC or the Federation of the Red Cross and Red Crescent will acquire this supreme protection. These activities become permissible with the consent of the parties to the conflict. Having obtained this consent it does not matter whether the Convention clearly extends the possibility of Red Cross supervision for education since the Fourth Convention states that nothing in the Convention shall constitute an obstacle to the humanitarian activities which the ICRC or any other impartial humanitarian organisation may undertake for the relief of the civilian 66 National Red Cross and Red Crescent Societies may also use the Emblem in as much as International Red Cross Conferences have provided for.

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DAVID A. G. LEWIS persons in a conflict.67 Since all humanitarian organisations are constrained by resources, two particular scenarios that are gaps in the general protections and cultural property protection should be mentioned. The first gap is when educational facilities are located or become caught in the theatre of operations. In the case that they are not subject to any of the stronger special protection for cultural property and are merely a basic facility, the probability increases that they may become subject to exceptions for military necessities in the course of operations. Negating possibilities for evacuation, it is in this scenario that education could greatly benefit from the added protection of the International Red Cross and the immunity it provides, shielding from both attack and military use. It also would further the ability of parties to distinguish the facility. The second scenario where the use of the International Red Cross would be particularly needed is in the protection of facilities that provide specific wartime education particularly in promoting an awareness of the mechanisms of IHL as has been discussed previously. This special knowledge has a sustenance value, which must be prioritised in the distribution of limited resources. The ICRC also possesses special knowledge and abilities that can be related to wartime education from their extensive experience in diverse conflict situations. While wartime education is not a traditional Red Cross protected activity it can be used to fill these vital gaps and where resources allow to help to give a population skills, know how, and awareness that will sustain them in war. The protection of the normative educational facilities or constructing new or improvised structures will be the first step to providing this assistance. Often the continuance of education will lie at the forefront of encouraging and implementing the humanity IHL provides for, aiding in post-conflict rebuilding and eventually preventing future conflicts. 5. The Legal Protection of Civilian Educational Institutions in Specially Provided IHL Zones The Hague Regulations, Geneva Conventions, and Additional Protocol I all allow for the setting up and maintenance of special zones, which afford their contents special protection from the effects of hostilities. The first type of zone is the Hospital and Safety zone,68 which is intended to provide shelter for sick and wounded but also for children under the age of fifteen. It was envisioned that they would be run through the good offices of the ICRC or protecting powers. This zone enjoys immunity from attack and tends to be located close to the actual hostilities. Education facilities for children under fifteen years old could be maintained under this protection. The second type of zone is a neutralized zone,69 which can provide the same degree of immunity as a safety zone upon the agreement of the parties but to all protected persons and objects within them. These neutralized zones are free from all military apparatuses and would be able to protect all educational facilities 67

GCIV Art. 10. GCIV Art. 14. 69 GCIV Art. 15. 68

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS within them. They are set for a particular duration and are humanitarian in purpose. Again it is probable an international humanitarian organisation would be asked to assist in the running and maintenance of such a zone as well as to ensure its continued neutrality. The last two zones are undefended localities70 and demilitarised zones.71 Both of these zones are to be free from being attacked on the condition that they remain free from military apparatuses. Undefended localities may come into being without any prior agreement, just by their inherent undefended status, but demilitarised zones must be set up by special agreement of the parties to the conflict. Both of these zones will have the affect for the period they are in effect of sheltering educational facilities and allowing them to carry on their normal activities. Undefended localities and demilitarised zones are both weaker in their framework provisions than safety and neutralised zones, and are not accompanied by the explicit humanitarian purposes of the latter. If any agreements can be reached and any of these zones put into place and maintained they can be amongst the best ways of sheltering educational institutions from the effects of war and allowing for areas where humanitarian assistance can be rendered to education. Conclusion There exists a myriad of means and methods within the existing framework of IHL for affording adequate legal protection to educational institution structures in the event of the hostilities of international armed conflict. There is a very well developed system of general protection that can be applied to education as well as the special protection that can be potentially afforded through Cultural Property regimes, particularly to educational institutions of outstanding or universal value. There exist provisions that provide the potential for protecting educational structures both through the special statuses of international organizations such as the ICRC and Federation of the Red Cross and Red Crescent as well as zones that may be demarcated to allow for the temporary or extended shelter of these institutions. The existing coverage is adequate but could still benefit from further clarity and enhancement. The major obstacle to adequate legal protection is not the nonexistence of standards but the implementation and enforcement of the existing law. One area where improvement can be made is in respect to the distinction of all educational institutions. The Roerich pact is unique in that it provided directly for the application of the Roerich emblem to institutions of education without having to creatively work educational institutions into the cultural property regimes through the assertion of customary norms or analogous circumstances. This old model is one that should be followed in the future development of IHL and particularly in any additional protocols to the existing cultural property regimes. It is also imperative that the measures of distinction be clarified and instituted and implemented before a conflict begins.

70 71

Hague Regulations IV; AP1 Art. 59. AP1 Art. 60.

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DAVID A. G. LEWIS A gap area of particular importance is the allowance for military necessity. Given how vital education is to civilian population, particularly in war, educational institutions structures should never be touched unless they are themselves used directly for military purposes in support of the military effort; the potential scenario of knocking down a facility for military necessity in defence or for army movements should not be permitted to be potentially acceptable. Educational institutions should always be afforded the special status that similarly important institutions such as hospitals can be afforded. Throughout this essay methods have been formulated within the existing law to allow this higher degree of protection for at least some educational institutions. In the future development of the Law of Armed Conflict all educational institutions should have the benefit of this higher protection without waiver for particular military necessities. This status would provide further reason why there should be an accompanying distinctive emblem so parties may treat the education institutions appropriately. Before changing the existing law there is a need for observance, respect, and thorough implementation of what is presently available. To achieve this ideal situation there must be sufficient attention paid to the protection of education in war and in peacetime, through examinations of the devices presently available, and discussions of how to apply the law. There also should be an effort towards the identification of which are the most appropriate of the many protections outlined above to be utilized on the national level in time of international armed conflict.72 Much of the preparation for implementation must occur in peacetime planning and execution, particularly in regard to cultural property registration and protection and civil defense strategies. It is encouraging that the international community is taking proactive steps towards the enforcement for violations of laws and customs of war in the ICTY, ICTR, and ICC. Significantly the ICTY Blaskic case73 directly applied the mechanisms international enforcement towards the repression of IHL breaches for targeting the civilian population and civilian objects. The proper legal framework is clearly in place for the respect and insurance of respect for all educational institutions in time of war. This legal notion becomes a realistic prospect provided the necessary implementation, adherence to, and enforcement of International Humanitarian Law is achieved by the responsible states, international organisations, and individuals. Bibliography – Works Consulted Alland, Denis, Droit International Public (PUF, Paris, 2000). Alonzo, David Michael, Methods and Means in Grey Zone Conflicts (Dansk Rode Kors, Kobenhavn, 2001).

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Certain methods might be more appropriate in certain types of conflict situations, contingent on many national factors such as available resources. 73 Blaskic (IT-95-14) ”Lasva Valley”.

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THE PROTECTION OF CIVILIAN EDUCATIONAL INSTITUTIONS Bouvier, Antoine, International Humanitarian Law of Armed Conflict (UNITAR, New York, 2000). Bouvier, Antoine, and Marco Sassoli, How Does Law Protect in War (ICRC, Genève, 1999). Goodwin-Gill, Guy S., and Ilene Cohn, Child Soldiers (Henry Dunant Institute, OUP, 1994). Green, Leslie C., The Contemporary Law of Armed Conflict 2nd Edition (Juris Pub., 2000). ICRC, Materials compiled in the 20th Warsaw Summer Course on International Humanitarian Law (Warsaw, 2002). IIHL San Remo, Materials for the 4th Advanced Course on the Law of Armed Conflict (San Remo, 2002 ). International Law Committee of the Danish Red Cross, Voluntary Review Procedure on National Implementation of International Humanitarian Law (Dansk Rode Kors, 1998). JAG(Canada), The Law of Armed Conflict at the Operational and Tactical Level (Canadian National Defense, 2001). Kuper, Jenny, International Law Concerning Child Civilians in Armed Conflict (Clarendon Press, Oxford, 1997). Retamal, Gonzalo, and Ruth Aedo-Richmond (Eds), Education as a Humanitarian Response (Continuum, 1998). Roberts, Adam and Guelff, Richard, Documents on the Laws of War 3rd Edition (OUP, Oxford, 2000). Schindler, Dietrich, and Jiri Toman (Eds.), The Laws of Armed Conflicts A Collection of Conventions, Resolutions and Other Documents 3rd Edition (Henry Dunant Institute, Genève, 1988). Shaw, Malcolm, International Law (Grotius, Cambridge, 1997) Toman, Jiri, The Protection of Cultural Property In The Event of Armed Conflict (UNESCO, Dartmouth, 1996).

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DAVID A. G. LEWIS Internet WEB Based ICRC Treaty database, Commentaries and National Implementation Databases www.icrc.org

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THE SELF-REFLECTIVE HUMAN RIGHTS PROMOTER Jonas Grimheden Sweden ranks among the very top countries in virtually all indices of various aspects of human rights fulfillment. Human rights is a key concept in Swedish foreign policy as well as in that of the European Union. Sweden is also a large ‘exporter’ of human rights through its development cooperation strategy. Sweden has a reputation around the globe as being a country that respects, protects, and fulfills the international human rights law obligations at home, and promotes the world-wide application also abroad. Sweden prides itself on being a human rights advocacy country and to some extent rightly so. Much remains to be done however in order for Sweden to truly and genuinely be the country of its high reputation and indeed expectations.1 For a country to hold high and effectively promote human rights abroad, the own ‘backyard’ must also be taken into consideration. An influential actor in promoting human rights needs credibility. Sweden has enjoyed a good reputation through its past policies of neutrality and non-alliance, for at times standing up to super-powers, for developing the ombudsman-system, for being among the more progressive states within the European cooperation on human rights protection, for equality in various aspects of society, and for its advanced social safety net, to mention some. For the reputation to be well-deserved much needs to be done, especially in order to gain the credibility so essential for the promoter of human rights abroad, but certainly also for the promoter at home. With these pages I want to highlight inadequacies in the approach to human rights in Sweden as a pedagogical tool of self-reflection in order to understand others and as a form of advocacy towards a shift in Swedish official positions. I will in the following briefly2 elaborate on the status of international human rights law obligations in Sweden; the ratification of international human rights treaties; the approach to the full spectrum of rights, ranging from civil and political to economic, social, and cultural rights and from individual to collective; and national implementation mechanisms of these international obligations.

Student of Professor Göran Melander at the Master Program in Lund in 1996 and since then an employee at the Raoul Wallenberg Institute (RWI); Senior Researcher, BA, LLB, LLM, LLD. I am grateful to Vilhelm Persson for stimulating discussions and plenty of references on the section on dualism in particular. 1 See e.g. Grimheden et al. (eds.), ‘Sverige och de mänskliga rättigheterna: En kritisk granskning’ [Sweden and Human Rights: A Critical Appraisal], 22:2 Nordic Journal of Human Rights (2004) pp. 166–180, to which Göran Melander has also contributed. 2 Göran Melander likes texts brief and to the point. 119

JONAS GRIMHEDEN 1. THE STATUS OF INTERNATIONAL LAW Public international law developed as agreements between sovereign states. With the introduction of human rights conventions the inter-state characteristics have fundamentally changed through providing rights to the people living in the sovereign state against the sovereign. For a more efficient supervision of these conventions, international mechanisms have been set up to avoid those being supervised – the states – supervising themselves. The credibility of a sovereign state’s submission requires that the obligations of the conventions are taken seriously in fact certainly, but additionally in more symbolical ways. Sweden is by tradition a dualistic country.3 The old distinction between dualism and monism is losing its clear distinctions in many countries, including in Sweden.4 Sweden’s neighboring country Denmark, it has been argued, has in fact a “practical monism” even though Denmark is not explicitly monistic.5 The dualistic system is however maintained in Sweden, preventing direct application of international treaties by, for example, national courts. Sweden holds that it is better to incorporate international treaty obligations by ‘law of approval’ when at all needed than to make the treaty directly applicable. This may make sense as an overall approach to international law, however the special nature of international human rights law, granting rights to individuals and groups against the state, questions this approach to international obligations in the specific human rights field. Sweden made the European Convention of Human Rights part of domestic law by way of incorporation as late as 1995; 42 years after the Convention came into force. Sweden, as one of the first countries to ratify the Convention in 1952, had scrutinized the contents and found Swedish law to conform to all provisions of the text.6 Given that international human rights law are minimum standards, states may 3

For the development and elaborations, see e.g. Göran Melander, ‘Incorporation and Implementation of Human Rights in Sweden’, in Martin Scheinin (ed.), International Human Rights Norms in the Nordic and Baltic Countries (Martinus Nijhoff Publishers, The Hague, 1996) pp. 295–302. 4 See e.g. a discussion on the developments from clear monism a century ago through to an unclear position in the 1970s, to a relatively settled position from the 1980s, in Erik Nerep, ‘Något om den så kallade transformationsteorin’ [Something on the So Called Theory of Transformation], in Erik Nerep and Wiweka Warnling-Nerep (eds.), Festskrift till Jacob W.F. Sundberg (Juristförlaget, Stockholm, 1993), pp. 211–227. He also suggests that Sweden ought to reconsider monism. See also Michael Bogdan, ‘Application of Public International Law by Swedish Courts’, 63 Nordic Journal of International Law (1994) pp. 3–16. 5 Henrik Zahle, Regering, forvaltning og dom [Government, Administration, and Adjudication], (Christian Ejlers’ Forlag, Copenhagen, 2001) p. 212. 6 See e.g. Iain Cameron, An Introduction to the European Convention on Human Rights (Iustus Förlag, Uppsala, 2002) pp. 152–153, citing the Annual Report 1991/92 of the Swedish Parliamentary Ombudsmen, p. 153. See also Jacob W.F. Sundberg, ‘Om Europakonventionen och Språnget Österut. Slutet på en epok?’ [The European Convention and the Leap Eastwards: Over for an Epoch?], Juridiska Föreningens Tidskrift (Finland) (4-5/2003) pp. 532–555.

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THE SELF-REFLECTIVE HUMAN RIGHTS PROMOTER very well and do occasionally provide for a higher level of protection. Sweden concluded then that the Convention did not reach above the already existing national level of rights. Judging from the cases against Sweden in the Strasbourg mechanisms, Sweden initially seemed correct in its understanding that the Convention added nothing new. It was not until the early 1980s that the rights in the Convention seemed to be taken seriously in Sweden. The government had to face the consequences of the greater protection that the Convention offered in the now well-known case of Sporrong and Lönnroth, which Sweden ‘lost’. Media caught up fast, and both the government and the legal profession were forced to do so as well. Both major Swedish daily newspapers carried front-page headlines on the case the day after the decision in Strasbourg was handed down. Svenska Dagbladet stated “Sweden violated the human rights” and Dagens Nyheter wrote “Unique judgment – Sweden Condemned”. In the lengthier elaborations inside both papers, a quarter of a page and a half page respectively were dedicated to explaining the background and the implications of the case.7 It was the first violation by Sweden that the European Court of Human Rights had found, and the first time ever that a country was found in violation of the right to property by the Court. The Court also concluded that Sweden had violated the right to trial.8 Only a couple of cases against Sweden had reached the court before Sporrong and Lönnroth and no violation had been found. Since then Sweden has ‘lost’ some 30 cases in the Court. This has encouraged the Swedish national courts to more recently make increasing references to the European human rights standards.9 The Strasbourg system did offer greater protection than Swedish law. The early 1980s saw an immense increase in the number of cases that reached Strasbourg from Sweden – to the extent that Sweden became the biggest per capita client.10 An additional ten years of pondering and consultations were needed for the Convention to be made a formal part of the Swedish legal system, lifting the Convention over the dualistic hurdle.11 The status of the Convention in Swedish law remains unclear. Its apparent position is somewhere between general laws and constitutional law, yet it is more appropriate that the status of international law, taken seriously, should be

7

24 September 1982: Svenska Dagbladet, pp. 1 and 6; Dagens Nyheter, pp. 1 and B1. Sporrong and Lönnroth v. Sweden, 23 September 1982, available at . 9 See e.g. Karin Åhman. ‘Kartläggning av i vilka fall svenska domstolar tillämpat bestämmelserna i 2 kap. Regeringsformen och i Europakonventionen’, Answer to Government Communication 2001/02:83. 10 It was also in the early 1980s that Göran Melander, as the key founder, established the RWI. 11 Law 1994:1219. 8

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JONAS GRIMHEDEN equal to or above the constitution.12 Austria, by way of example, has given the Convention a clear constitutional status.13 The two fundamental United Nations covenants of 1966 in particular, along with the more specialized conventions on racial discrimination, torture, women, children, and the more recent addition on migrant workers and their families, similarly add a minimum protection that Sweden supposedly rises above. For instance, Norway has chosen to incorporate the two 1966 conventions into the Norwegian legal system as well as the European Convention; incorporation of the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Elimination of Racial Discrimination (CERD) is also foreseen.14 If human rights conventions do not increase the level of protection of a state, the symbolically important act of making the conventions directly applicable seems harmless. If they do provide greater protection, states, especially Sweden, ought to embrace such improvements. To provide another example, the Czech Republic amended its Constitution in 2002, making international human rights law obligations directly applicable (article 10).15 In the debate on constitutional reform in Iceland, Professor Guðmundur Alfreðsson has suggested that one change would suffice: the introduction of a single clause making international human rights law obligations part of the Constitution, replacing the Icelandic constitutional fundamental rights since they do not rise above the international protection.16 With increased integration and exchange in Europe as well as globally, dualism is facing strong headwind. Monism, with directly applicable international law obligations, is also moving in on the Swedish stage in areas such as trade. With 12 See the discussion in Hans Danelius, Mänskliga rättigheter i europeisk praxis [Human Rights in European Praxis] (Norstedts Juridik, Stockholm, 1998) pp. 44–46, on the relative importance intended to be placed on the Convention, raising it above general laws but clearly keeping it below a constitutional level. 13 Ibid., p. 38. 14 The basis is the law of 21 May 1999, No. 30. See elaborations in e.g. the Action Plan, available at . See also the report on Norway at <www.manskligarattigheter.gov.se/ p. 2>. 15 For additional examples, see e.g. Göran Melander, ‘The Effect of Treaty Provisions in Swedish Law’, 53 Nordic Journal of International Law (1984) pp. 63–70. Note in particular his description of the Swedish scrutiny of legislation at the time of ratifying the ICCPR when no conflict was found, pp. 63, 66; see also Danelius, supra note 12, pp. 37–38. 16 Guðmundur Alfreðsson, ‘Tillaga um mannréttindi í stjórnarskrá’ [A Human Rights Proposal for the Constitution], in Afmælisrit til Heiðurs Gunnari G. Schram sjötugum [Festschrift in Honor of Gunnari G. Schram at Seventy] (Almenna bókafélagið, Reykjavík, 2002) p. 170. Note also the interesting impact of international human rights law in the recent abolishment of the death penalty for juvenile offenders by the US Supreme Court Roper v. Simmons, 543 U.S. (2005). See in particular Justice Kennedy’s argumentation at pp. 21–25 referring to convention texts, both global and regional as well as to situations in national jurisdictions – even to the Convention on the Rights of the Child (CRC), noting that the US and Somalia are the only states that have not ratified the CRC.

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THE SELF-REFLECTIVE HUMAN RIGHTS PROMOTER membership of the European Union, Sweden is also accepting the aquis as national law. Rights of the people seem to be a more basic concern worthy of the highest possible international minimum-level, rather than being restricted to the domain of the very states that the system is intended to protect the people from. As a human rights promoter, Sweden should take these symbolic but also very concrete possibilities into consideration. 2. INCREASING TREATY OBLIGATIONS The relationship between national and international law is important in many ways. Disregarding the way international human rights law obligations affect the actual application in a country, the protection that a country chooses to subscribe to is essential. Sweden typically ratifies human rights treaties rapidly, without much apparent need for adapting Swedish law. With the increased realization of possible shortcomings in the Swedish level of protection compared to the international level, the willingness to submit to such obligations has somewhat decreased. The well-known ILO Convention 169 on indigenous and tribal peoples is the prime example of a treaty that makes it evident that ratification would require great changes for Swedish law. Taking the process of ratification seriously is of course beneficial for the country, but it has now been many years since for instance, Norway, with a very similar situation in terms of the Sámi-people, ratified the Convention.17 The fairly recent convention on migrant workers and their families is another area Sweden seems to be avoiding when they could be at the international forefront of a newly recognized area of human rights. Reservations to human rights treaties may be appropriate to adapt a treaty to some extent to national law.18 This may speed up the process of ratification. Ideally however, reservations should be kept at a minimum or be avoided altogether so as to develop common standards. Reservations should therefore be regularly reviewed with a sincere willingness to adapt national law. The precedent that relatively rich and developed states can set, especially if they have a reputation of being ‘human rights-promoting’ countries, should not be underestimated. Similarly, objections to reservations by other states, even though with a somewhat unclear effect, require consistent, objective application in concert with other likeminded states and in accordance with developing international praxis.19 17

Norway ratified ILO Convention 169 in 1990; Finland is likely to ratify soon; and Sweden is admittedly in the process of considering ratification, see the recent report of 23 March 2005 by the Swedish “delegation on Indigenous People’s”. 18 On the reservations of Sweden, see e.g. Göran Melander, ‘Sverige och Internationella Konventioner’ [Sweden and International Conventions], in Grimheden et al. (eds.), supra note 1, p. 170. 19 See reports by Françoise Hampson (E/CN.4/Sub.2/2004/42), paras. 26 et seq. and by Alain Pellet e.g. (A/CN.4/535). See also Anja Seibert-Fohr, ‘Reservations to Treaties and Norms of Jus Cogens – A Comment on Human Rights Committee General Comment No. 24’, in Ineta Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime (Martinus Nijhoff Publishers, Leiden, 2004) pp. 210 et seq. and the Annex, pp. 235 et seq.

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JONAS GRIMHEDEN The supervision mechanisms established through international treaty and charter obligations require states to submit and elaborate on reports with statistics and explanations on the realization of the rights pertained and to receive monitoring through for example the Special Procedures of the United Nations. Based on the feedback states receive on reports and practice as well as through the outcome of individual complaints mechanisms, countries are expected to adapt their law and practice. Also here is plenty of room for the human rights promoting state to have a positive attitude towards the supervision mechanisms, not the least in the quality, seriousness, and honesty of the reports submitted. Norway has, in addition to instituted follow-up to General Comments and Conclusions by the UN Treaty Bodies, also revised their procedural laws on civil and criminal matters, introducing references to the decisions of the UN Treaty Bodies and the European Court of Human Rights.20 Rather than shying away from this potentially very constructive process, it should be welcomed and developed as a model for improving human rights fulfillment abroad as well as at home. Human rights deserve the greatest international development and scrutiny. 3. THE FULL RANGE OF RIGHTS Human rights consist of a spectrum of rights ranging from civil to cultural, from individual to collective. Officially all states agreed to this more than ten years ago in the Vienna Declaration and Programme of Action of the United Nations World Conference on Human Rights (1993). However the attitude of the Swedish foreign ministry seems to be contradicting this. In terms of economic, social and cultural rights, Sweden argues in international fora that they are not justiciable, as opposed to civil and political rights. On the contrary, Finland has proven, through court practice, that it is fully possible to have courts adjudicate on for instance, social rights, when needed, as does case law from various other countries and regional and global human rights mechanisms.21 Still, Sweden persists, and even advocated against the adoption of an optional protocol22 to the International Covenant on Economic, Social and Cultural Rights with excerpts from relevant parts of Pellet’s reports. Along with the other Nordic countries and the Netherlands, Sweden is the most active in objecting to reservations even though the consistency and approach seems questionable. 20 Interview with Petter Wille, Deputy Director General, Norwegian Ministry of Foreign Affairs, who has been heavily involved in the development of national implementation of international human rights obligations in Norway. 21 See e.g. the Report by Hatrem Kotrane on the Optional Protocol (E/CN.4/2003/53) pp. 12 et seq. See also Martin Scheinin, ‘Economic and Social Rights as Legal Rights’, in Asbjørn Eide et al. (eds.), Economic, Social and Cultural Rights: A Textbook (2nd ed., Martinus Nijhoff Publishers, The Hague, 2001) pp. 29-54, where he also elaborates on case law in e.g. Sweden. 22 On the position of Sweden, see e.g. <www.unesco.de/c_huefner/chap3_2.htm>. Even though Sweden stresses the equal importance of the different groups of rights, see ‘Human Rights in Swedish Foreign Policy’, Government Communication 2003/04:20, 20 October 2003, p. 7.

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THE SELF-REFLECTIVE HUMAN RIGHTS PROMOTER which would put a complaint mechanism in place under the Covenant that could handle individual complaints.23 The position of the Swedish government on this issue has reportedly somewhat softened recently to a neutral stance on the Protocol. A country such as Sweden, world-renowned for its social protection, ought to be on the barricades for a project such as the additional protocol and for making also social rights justiciable – both at home and abroad. In a similar vein, Sweden’s official position towards collective rights is remarkably conservative, as is partially shown by the reluctance to ratify ILO Convention 169. Sweden promotes individual rights in international fora but seems reluctant to accept the concept of collective rights that are so essential for the enjoyment of cultural rights of minorities and indigenous peoples.24 4. NATIONAL IMPLEMENTATION Apart from the international human rights monitoring mechanisms, the United Nations also prescribes remedies at the national level.25 Particularly prominent are a so-called National Human Rights Institution and a National Action Plan.26 Sweden is known across the globe for its ombudsman system.27 Even as far away as China, books are written on the Swedish ombudsman system and in many other countries the word ombudsman has even entered their vocabulary. A National Human Rights Institution should be an organization independent from government influence with a broad and clear mandate of, in particular, observing the fulfillment of human rights obligations, taking cases of violations to court, and ensuring continuous education of human rights.28 Sweden considers that it has such an Institution in the Parliamentary Ombudsman (JO). The independence of the JO is beyond dispute but the mandate to monitor the full range of human rights is not there: the JO’s main task is the administration of justice.29 Moreover, a clear 23

(E/CN.4/2004/44), paras. 59 et seq., even though no country is specifically mentioned. Individual rights only are stressed in e.g. ‘Human Rights in Swedish Foreign Policy’, supra note 22, p. 6. 25 See e.g. paras. I36(2) and II71 of the Vienna Declaration and Programme of Action (A/CONF.157/24 13), October 1993 on human rights institutions and action plans respectively; see also Action 2 of the UN Secretary General, available at <www.un.org/events/action2/index.html>; Millennium Declaration, para. 25; and subsequent support by the High Commissioner in, e.g., her 14 March 2005 speech to the Commission. 26 For detailed information, see <www.ohchr.org/english/about/publications/docs/fs19.htm> and also <www.nhri.net/>. 27 The system originates to some extent from continental (German and the Catholic Church) practices and to some extent from Swedish developments. See e.g. Mirjan Damaška, The Faces of Justice and State Authority (Yale University Press, New Haven, 1986) p.188. 28 See the Paris Principles, available at <www.ohchr.org/english/about/publications/docs/ fs19.htm#annex>. 29 Consider also the mandates of the JO as well as the Justitiekansler (JK) including also the courts, which is quite an odd feature outside of the Soviet-inspired legal systems. See e.g. comments on this by Torkel Gregow, Dagens Nyheter, 26 March 2000. 24

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JONAS GRIMHEDEN educational mandate is absent. The ombudsmen themselves have even highlighted their limits in not being mandated to criticize government agencies for acting in accordance with law that is in contravention with the Constitution or, a fortiori, international obligations. Furthermore, the JO is excluded from monitoring the Government and the Parliament, the institutions in the Swedish system officially charged with ensuring compliance with international human rights obligations.30 Sweden is also lacking a Constitutional Court and has only the Council on Legislation [lagrådet] with a mandate limited to advisory ex ante screening of draft laws before they are passed by the Parliament.31 Sweden has a number of specialized ombudsmen (dealing with equal opportunities, ethnic discrimination, equal rights of homosexuals, the rights of the child, etc.), which taken together may encompass most of the full range of human rights. However these latter ombudsman-institutions are established under specific pieces of legislations as tools of implementation, and therefore fall under the government rather than a more independent position under the Parliament. At least a healthy debate on the establishment of a National Human Rights Institution in Sweden would be welcomed. Many relatively poor developing countries, such as Indonesia and Thailand have already established strong Institutions. Sweden is, in its international development cooperation, supporting such entities and draws on the experience and reputation of the Swedish ombudsman system but at home the system begs for an overhaul. A National Human Rights Action Plan is another instrument for national implementation of international human rights obligations. Again, many developing countries were relatively fast in commencing such a procedure. For example, Indonesia had its first Plan starting in 1998- Sweden only as recently as 2002 (for 2002–2004).32 The National Action Plan of a country like Sweden with its wealth and traditions could be a role model for not the least developing countries in the same way as in its attitude towards reports obliged to be submitted under various regional and global supervision mechanisms discussed above. 30

Annual Report 1991/92 of the Swedish Parliamentary Ombudsmen, pp. 155–156. On the development of the JO’s application of the European Convention on Human Rights, see e.g. Jacob W.F. Sundberg and Fredrik G.E. Sundberg, Lagen och Europakonventionen [The Law and the European Convention] (Juristförlaget, Stockholm, 1992) pp. 200 et seq. 31 See e.g. Joakim Nergelius, ‘Problemet lagrådet - oberoende granskningsinstans eller regeringens förlängda arm?’, [The Problem of the Council on Legislation – independent scrutinizer or the extended arm of the government?], Svensk Juristtidning (1997) pp. 562–572 and his, ‘Aktuella konstitutionella frågor i Sverige: problem och reformbehov’ [Contemporary Constitutional Issues in Sweden: Problems and Reform Needs], in Grimheden et al. (eds.), supra note 1, p. 177. See also a recent proposal to the parliament suggesting the establishment of a Constitutional Court, 2004/05:Ju339 of 30 September 2004 and the Government decision of 1 July 2004 establishing a Committee mandated to explore reform of i.a. the status of courts and the establishment of a Constitutional Court (the report is due 31 December 2008), Directive 2004:96. 32 Government Communication, 2001/02:83 ‘A Government Action Plan for Human Rights’, available at <www.humanrights.gov.se>.

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THE SELF-REFLECTIVE HUMAN RIGHTS PROMOTER Even though the Plan takes up some of the problems discussed above, such as ratification of ILO Convention 169 and reservations, the attitude is more of a defense than a road-map for improved human rights fulfillment – which it ought to be. Sweden is now formulating its second National Human Rights Action Plan (for 2006–2009) and could seize the opportunity of promoting through precedence: with substantial and procedural benchmarks to strive for in the process towards greater fulfillment of human rights, with clear and straightforward identification of actual problem areas on which to focus.33 5. CONCLUSIONS In particular Sweden, with its tradition of providing social welfare to the people, needs to consider the benefits that rights provide. A rights-based approach rather than the obligation or even the benevolence of the state to provide, turns the concepts around in a healthy manner. In the evaluation of the Action Plan commissioned by the Swedish Ministry of Justice, Thomas Hammarberg stresses the need for a culture of human rights to be developed.34 Hammarberg repeatedly returns to the need for clear statements from the highest echelons of the state in support of Sweden’s international human rights obligations.35 A reconsidered view on international human rights law in relation to national law; a consistent and progressive position towards ratifications, reservations, objections to reservations, and to the various international monitoring mechanisms; equal importance placed on the full range of human rights; and a sincere implementation at the national level in line with international practice will contribute towards the development of a greater culture of rights. The first steps could be taken with clear statements of submission under, and in support of the international human rights regime from the leaders of the country, coupled with clear positions and actions. Only by being self-critical, self-reflective and truly working towards an improvement at home can Sweden be a human rights educator and promoter also abroad. I have had the great pleasure of working for Göran Melander for the last ten years and seen him in the role as the educator and promoter both at home and abroad. With the vast experience he possesses, the one feature of his that has left me with the most lasting impression; that has had and still has the greatest impact on opening up exchanges; enabling mutual critical discussions; and affecting the actual perspective on human rights of counterparts is the self-reflectivity. Many other 33

In Swedish development cooperation, a problem-analysis of some sort (typically the so called LFA-model), identifying the core obstacles to fulfilment of the human rights obligations would be mandatory. 34 Thomas Hammerberg and Anna Nilsson, ‘Bra början, men bara en början’, [A Good Beginning but Only a Beginning], January 2005, pp. 29, 44. The report also highlights some of the criticism raised above. Available at <www.manskligarattigheter.gov.se/extra/ document/?instance=1&action_show_document.787.=1>. 35 Ibid., p. 29.

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JONAS GRIMHEDEN features are important, such as an apolitical focus on law, the endeavour for objectivity, and working with counterparts to improve the human rights situation in their respective countries, leaving the necessary but quite different public criticism to other organizations. Self-reflection opens up the path for credibility, depoliticization, and mutual trust and understanding that is essential for the successful human rights educator. The self-critical human rights promoter draws on examples of one’s home country: pointing out shortcomings in the legal and political system, advocating change in faulty mechanisms, and staying clear of general proud boasting of the situation at home. The great leader leads by being a role model. By being critical of the human rights situation also in Sweden and Europe, Göran Melander has been extremely successful in making counterparts willing to admit shortcomings, an essential prerequisite for understanding, learning, and genuine development and change. As for any entity promoting human rights law both at home and abroad, credibility is fundamental. Göran Melander taught me to see and indeed seek human rights as a universal phenomenon and development, beyond traditional Euro-centrism. When I suggested many years ago that I wanted to write on the origin of judicial independence and how it has come to be imported to China, he seemingly instinctively told me to look for judicial independence in Chinese history, before it was necessarily introduced from elsewhere. I searched and I found. When, in discussions with Göran Melander, I brought up what I saw as very odd features of distant countries and historical developments other than that of my own, he made me look at home to see the many particularities existing also within our own legal and political system, many of which appeared strikingly similar or parallel to these ‘foreign oddities’. To some extent it is analogous to subjective self-reflection as an effect of objective observation. To understand the foreign or opposing, it is, I have learnt, crucial to have the perspective from both at home and abroad.36 It is crucial, I have learnt, to see and seek similarities in development as well as shortcomings in order to understand and to influence. A good promoter and educator is self-reflective.

36

I have elaborated on this at length elsewhere, see e.g. ‘Inveterate China: Law and Symbolism’, in Culture, Law and Order: Chinese and Western Traditions (Macau Ricci Institute Studies 4, Macau, 2005).

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PART II HUMAN RIGHTS APPLIED

HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW Ove Bring* 1. Introduction It has always been the case that ‘laws of war’ and ‘individual rights’ to a certain extent coalesce. The link and occasional overlapping between international humanitarian law (IHL) and human rights law is evidenced by, inter alia, common Article 3 of the Geneva Conventions. Individuals who do not take part in hostilities should be treated humanely according to certain minimum standards. The more specific norm that prisoners should not be killed or mistreated goes way back in history, its moral and philosophical rationale presumably being possible to sum up in two premises: (1) that all individuals in some basic form have an ‘inherent right to life’; and (2) that in the specific event of armed conflict, all individuals who do not act as combatants or otherwise present a military threat should have their lives protected. Today we speak confidently about IHL and human rights law as separate legal systems. In antiquity the rights issue did not exist as such, although the Stoic conception of universally applicable rules of natural law made things happen. Slowly and implicitly the concept of human rights grew out of the emerging law of armed conflict, jus in bello, and to a lesser extent it also grew out of the law on the use of force and the concept of bellum justum. Hugo Grotius is often referred to in any discussion on jus ad bellum, especially with regard to his position that trans-border humanitarian protection of a population under tyranny could be seen as a just war (bellum justum). The doctrine on legitimacy of such armed humanitarian intervention dates back to the time of St Thomas Aquinas (1225–74), but although the Thomist theologian doctrine included action to protect individuals, such protection may have been limited to individuals of the Christian faith. The Grotian doctrine, on the other hand, is obviously linked to a certain perception of inherent rights of human beings, thereby indicating an embryonic normative human rights thinking. Similarly, Grotius’ and his predecessor Gentili’s treatment of an emerging humanitarian law of warfare, jus in bello, indicates a certain element of human rights ideology with regard to civilians and prisoners of war. If this is a correct description, the ‘inherency’ language of present human rights documents has more to speak for it in a historical perspective than is usually realized. At the time of Grotius (1583–1645) these early ‘human rights developments’ on two parallel tracks – humanitarian intervention and protection of non-combatants – had crystallized into at least positions de lege ferenda. Only much later in history *

Professor of International Law at the University of Stockholm. 131

OVE BRING was there to develop an independent doctrine on human rights, culminating in the 1789 French revolutionary Déclaration des Droits de l’Homme et du Citoyen, later reworked and elaborated in the 1948 Universal Declaration on Human Rights. History matters, because perceptions of it influence current attitudes on the validity of moral and legal norms. In that sense Grotius and his successors – Locke, Montesquieu, Jefferson, Lafayette, John Stuart Mill, Eleanor Roosevelt, etc. – have created a problem, since their contributions have built up a perception of universal human rights ideology as a Western phenomenon, in some sense legitimising a counter ideology of cultural relativism admitting deviations from the canon of universalism. It is worth noting that Grotius’ thought was not exclusively linked to Western culture, nor was the concept of natural law, that permeated his and others’ writings at the time, exclusively a product of Western civilization. There were influences of Oriental culture in the background. They are not well researched, though, and one purpose of this article in honour of Professor Göran Melander, is to encourage young scholars to trace the ‘roots’ of international human rights law, not only in Western traditional philosophy, but also in the cultures of Asia and Africa. If successful, such research could change the image of human rights as Eurocentric and as something partly opposed to ‘Asian values’ or African group-oriented thinking. 2. Human Rights related Norms before the Modern Age According to a number of international law textbooks, an early example of a treaty on the protection of prisoners of war is attributed to ancient Egypt during the second millennium B.C., probably around 1450–1430 B.C. At that time Queen Hatschepsut conducted a progressive and peace-oriented policy in relation to the neighbours of Egypt. Otherwise, the Egyptians were not known for anything else other than cruelty against their prisoners, although the opposite perception was conveyed by Giuseppe Verdi in his opera Aida (where the Ethiopian prisoners of war seemed to enjoy excellent treatment). The Israelites, at times, imposed some measures of control on their warlike activities. Although the Old Testament contains a number of provisions on ruthlessness, the Second Book of Kings, which was written around 500 B.C., includes a famous passage with a humanitarian message. When the prophet Elisha gives advice to his king whether prisoners should be killed, the prophet’s answer is that they should be treated humanely: “Thou shall not smite them: wouldst thou smite those whom thou hast taken captive with thy sword and with thy bow? Set bred and water before them, that they may eat and drink and go to their master. And he [the

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW King] prepared great provision for them: and when they had eaten and drunk, he sent them away…”1

From ancient India the Hindu Code of Manu is famous. It was elaborated and compiled during a long period between 500–100 B.C., and it displays a clear ambition of protecting the individual human being in warfare. An honourable warrior is supposed not to strike an enemy which is helpless, whether he is asleep, naked, carries no arms, or has turned to flight. Arthur Nussbaum has cautiously noted that these prescriptions “seem to relate to inter-Indian feuds; even so, it is difficult to believe that they had any major significance in actual combat, especially as they were not fortified by legal sanctions. Yet they characterize Indian spirituality….”2

This Indian spirituality was reconfirmed in the Sanscrit epos of Mahabharata (composed between A.D. 200–300), where it was again stated that “no sleeping enemy should be attacked”.3 Later, and in another part of the world, the Arabian philosopher Averroes (1126–1198), who spent his later years in Marrakesh, Morocco, wrote about the dignity and equality of human beings and managed to do this within the context of commentaries on the works of Aristotle. Averroes influenced European medieval thinking, although it is uncertain whether this applies to his ideas on individual rights. Turning back to India, King Akbar (1542–1605) introduced administrative reforms in the kingdom of Mogul, which inter alia had the effect of protecting individual rights, including freedom of religion. Although the reforms were workable and persisted up to colonial times, the influence on the outer world was negligible. In Europe the infamous Inquisition plagued religious dissidents at the same time. Refugees from Mediterranean countries went north and one of them was Alberico Gentili, perhaps more ‘a father of international law’ than Hugo Grotius himself. 3. The Early Modern Age: Military Law and Legal Doctrine The early Modern Age brought with it the phenomena of municipal Articles of War in Europe. The approach was one of military law, it was disciplinary and its purpose was mainly to increase the military efficiency of soldiers in warfare. Insubordinate behaviour was defined and linked to specified and severe punishment. Ferdinand of 1

2 Kings 6:22, quoted by Leslie C. Green, ‘The Law of War in Historical Perspective’, in Michael N. Schmitt (ed.), 72 International Law Studies (Naval War College Press, Newport, Rhode Island, 1988) p. 73. 2 A. Nussbaum, A Concise History of the Law of Nations (2nd edition, The MacMillan Company, New York, 1958) p. 4. 3 L. C. Green, ibid., p. 41.

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OVE BRING Hungary enacted a military code of conduct in 1526; Maximilian II of the GermanRoman Empire did the same thing in 1570; and so did Maurice of Nassau in 1590.4 Discipline and punishment may have been the main thing, but respect for the human being in warfare was also a marginal part of it. The emphasis on military law was followed up in legal doctrine by the Italian Pierino Belli, who in 1563 published De Re Militari et Bello Tractatus (‘A Treatise on Military Matters and Warfare’). Although Belli to a large extent discussed organisational and disciplinary matters, he also widened the conceptual approach to a humanitarian law of warfare, at least as a lex ferenda. He stated that prisoners of war should be treated in accordance with the sentiment of humanity: “It is savage and barbarous to do violence to prisoners”.5 He took issue with the view advanced by the famous Baldus, “namely that a man taken in war changes from a person to a thing, and is rated like an ass or some other movable”.6 Further, and more generally, Belli stated that soldiers “ought not to harm the unoffending”.7 His compatriot Alberico Gentili (1552–1608) took this approach to the law of warfare a step further and came close to the concept of human rights. In 1598 he published three volumes on the law of war, De Jure Belli Libri Tres, being at that time a professor of civil law at Oxford University. Gentili was a refugee from Italy, where he, together with his father, had been sentenced in absentia to penal servitude for life after they had converted to Prostantism. Against that background Gentili should have been sensitive to the need of individual rights. To a certain extent he addressed such matters in De Jure Belli. In Book I on legitimate causes for war Gentili espoused the right of humanitarian intervention on behalf of people under other sovereigns. In his view, the citizens of all states (“the subjects of all sovereigns”) were within a “kinship of nature”,8 and intervention was manifestly just if “a right of humanity” was violated.9 He supported a human rights oriented statement by Seneca that if violations “of the common law of mankind” occur, then

4

Maurice (1567–1625), Count of Nassau-Dillenburg, later Prince of Orange, was a successful Dutch military leader in the War of Independence against Spain. In the Dutch internal and religious crisis of 1618 his path of life crossed with that of Grotius. Maurice arrested the political leader of the country, Oldenbarnevelt, and he also arrested Grotius, who was Oldenbarnevelt’s close collaborator and legal adviser. While the latter was executed, Grotius was put in prison but managed to escape in 1621. 5 Belli, De Re Militari et Bello Tractatus, translation by Herbert C. Nutting of the 1563 edition in James Brown Scott (ed.), Classics of International Law (Clarendon Press, Oxford, 1936) p. 86. 6 Ibid., p. 98. 7 Ibid., p. 95. 8 Translation by John C. Rolfe of the 1612 edition of Gentili’s De Jure Belli Libri Tres, in Classics of International Law, supra note 5, No. 16, Book II (Clarendon Press, Oxford, 1933) p. 74. 9 Ibid., p. 123. Cf., Theodor Meron, ‘Common Rights of Mankind in Gentili, Grotius and Suárez’, 85 American Journal of International Law (1991) p. 114.

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW the duty which one owes to the human race is prior to that which one owes to any sovereign.10 The second book of De Jure Belli is concerned with rules of warfare. Against the background of the brutalities of medieval warfare Gentili’s approach is distinctly progressive, although his cautious idealism is softened by certain concessions to Realpolitik.11 The message of Chapter XVI on ‘Captives’ is, according to the rubric, that “they are not to be slain”. Nevertheless, the chapter starts out with an admission of the legality of the practice of slavery, before the author reverts to a human rights oriented position: “namely, that a captive [who has ceased to fight] must not be killed… since to slay a prisoner of war is always an act of extreme cruelty and contrary to that humanity which man naturally owes to his fellow, besides being opposed to the precepts of good men.”12

Gentili supports this conclusion with references to inter alia St Augustine and canon law and more generally to the law of nature and nations (jus naturae et gentium).13 Another chapter starts out with the phrase “Children should always be spared, and so should woman”.14 The underlying rationale that individuals not presenting a military threat should always be spared, made it natural for Gentili to extend the protection to other non-combatants, and he explicitly mentions peaceful peasants, old men, and foreign merchants. In the process he comes close to advancing the principle of protection of the civilian population, the principle that flows from traditional human rights thinking in its implied recognition of the inherent dignity and worth of the human person. Gentili’s De Jure Belli was published in a new edition in 1612 in Hanau (Hanover), and thus was available in Europe at the eve of the Thirty Years War. The work may have influenced King Gustavus Adolphus of Sweden when he decreed 150 Articles of War in July 1621. The bulk of the Swedish articles were disciplinary in nature, only seven of them conveyed a humanitarian message and could be said to express humanitarian law in armed conflict. Of these seven, two provisions could also be said to express norms of human rights law. One of them was Article 88 with the following clear wording:

10

Gentili, De Jure Belli, supra note 8, p. 75. As has been pointed out by Coleman Phillipson in his introduction to Gentili’s De Jure Belli, supra note 5, p. 40. 12 Gentili, De Jure Belli, supra note 8, p. 209. 13 Ibid., p. 210. 14 Ibid., p. 251. 11

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OVE BRING “He that forces any woman to abuse her, and the matter be proved, he shall dye for it.”15

In addition, Article 100 includes the following wording: “No man shall set fire upon [certain types of buildings] . . . Neyther shall any tyrannise over any Churchman, or aged people, Men or Women, Maydes or Children, unless they first take Armes against them, under 16 paine of punishment at the discretion of the Judges.”

With this background it may not be surprising that Gustavus Adolphus later took an interest in the work of Hugo Grotius. In fact, he is supposed to have carried a copy of De Jure Belli ac Pacis in his saddle bag on his campaigns in Germany during the Thirty Years War. 4. Grotius’ Contributions When De Jure Belli ac Pacis Libri Tres was published in Paris and presented at the Frankfurt book fair in 1625 it was the start of a success story. New editions and translations were published in 1626, 1631, 1632, 1642, 1646 (this was the last one Grotius himself reviewed) and thereafter in 1647, 1650, 1651, 1660, 1663, 1667, etc. The record is almost as impressive during the 18th century up to the year 1783. Three hundred years after the first edition one could count to 84 editions in Latin and 30 translations.17 Nevertheless, the fame of the book does not stand in proportion to its originality. Grotius was the first one to attempt a systematisation of international legal concepts, but it should have been clear already in 1625 that he was not erecting his international legal system in a vacuum. He worked in the Thomist tradition as to the just war doctrine and natural law. He was strongly influenced by Gentili as to humanitarian intervention and rules of warfare. His originality lies not in the advancement of new arguments, but in his new arrangement of traditional elements.18 He referred, as others had, to Roman and Biblical precedents and used quotations from classical antiquity and the Holy Writ as legal sources. Grotius does not speak about a clear ‘right to life’, but he approaches the topic through a proposition on “the right to such acts as human life requires”. The implication is that society cannot refuse the benefit of fruits produced for all. 15

Translation in English attached to K. Ögren’s article ‘Humanitarian law in the Articles of War decreed in 1621 by King Gustavus II Adolphus of Sweden’ No. 313 International Review of the Red Cross (1996) pp. 438–442. 16 Ibid., Annex. 17 For a full list up to the third centenuary 1925 see De Jure Belli ac Pacis, J. Brown Scott (ed.), Classics of International Law, Vol. II, Book III (Clarendon Press, Oxford, 1925), pp. 877–886. 18 Cf., in another context C.G. Roelofsen, ‘Grotius and the International Politics of the Seventeenth Century’, in Hedley Bull et al. (eds.), Hugo Grotius and International Relations (Clarendon Press, Oxford, 1992, reprint 1995) p. 107.

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW Reference is made to “things which life requires, as food, clothing, and medicines”.19 However, the proposition comes out as fairly self-evident as it only amounts to a right to buy such things. It is not a right to life subsistence. Nevertheless, it is an indication of the inherent dignity of the individual. With regard to the implicit human rights track of jus in bello Grotius approached this subject already in the introductory part, the Prolegomena, of his great work. In a famous passage he criticizes the current practices with regard to war and warfare: “Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have been once taken up there is no longer any respect for law, divine or human; it is as if . . . frenzy had openly been let loose for the committing of all crimes.”20

He contrasted this practice with lex lata, to which he referred in general terms: “Fully convinced, by the considerations which I have advanced, that there is a common law among nations (inter populos jus commune), which is 21 valid alike for war and in war…”

Grotius worked with somewhat unclear distinctions between natural law (descending from a higher reason), divine law (descending from God) and a law of nations (ascending from state practice). In the quotation above he seems to refer to the volitional law of nations. It has been pointed out by Peter Haggenmacher that Grotius in general was “backward-looking” in his legal approach and in this case he was not concerned with setting up new international law but with “limiting warfare by recalling the law governing it since times immemorial”.22 He wanted to improve the situation for the victims of war through a better implementation of existing law. Obviously, in his view, existing law offered individuals some minimum ‘fundamental guarantees’ in armed conflict (to use the language of the human rights focused Article 75 of Additional Protocol I to the Geneva Conventions of 1949). In fact, Grotius made a strong appeal for a humanization of warfare in the Prolegomena. As a consequence, the reader of his work would expect him to follow up on this strong position and pursue the argumentation in Book III, which is devoted to the issue of “what is permissible in war”.23 This expected follow-up does not materialize. The treatment of existing law in Book III gives a very ‘realist’ 19

De Jure Belli ac Pacis, Book II, p. 203. Translation by Francis W. Kelsey in Classics of International Law, supra note 17, Book I, para. 28, p. 20. 21 Ibid. The quoted sentence precedes the one quoted directly above. 22 P. Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture’, in H. Bull et al., Hugo Grotius and International Relations, supra note 18, p. 174. 23 From the rubric of Chapter I in Book III. 20

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OVE BRING impression. The ‘law of war’, as described here, does not prohibit the killing of prisoners, hostages or innocent civilians, including woman and children, in enemy territory. Grotius more or less works from the presumption that volitional law, in the form of state practice, has failed to establish legally binding rules on restraint in warfare.24 As a consequence, an ambivalence is created in relation to the lex lata message of the Prolegomena. On the other hand, Grotius comes through as a visionary reformer in the field of international humanitarian law. He propounds a plea for moderation and humanity in warfare, temperamenta belli. Such moderation would benefit the bystanders, the civilians and the prisoners and it would protect their property. The idea is close to the later thinking of professor Fedor Fedorovich Martens (1845–1909), to the effect that in cases where protective rules are not in force, “the human person remains under the protection of the principles of humanity and the dictates of the public conscience”.25 In fact, Grotius, in contrast to his habits, embarked upon an argumentation de lege ferenda through his introduction of the concept temperamenta belli. He conveyed the message that a solid international humanitarian law of armed conflict ought to be developed. In the process he made a number of ambivalent statements as to existing law. With regard to the legitimate seizure of individuals in war it is said that such seizure “does not warrant the taking of human life”,26 but later in the text the legal import of that statement is somewhat eroded by a reference to ‘the law of love’: “According to this law [the law of love], particularly for Christians, the life of a man ought to be of greater value than our property, as has been proved in another connexion.”27

With regard to the raping of woman in war there is a quotation of Scipio to the effect that Roman soldiers should not violate what is ‘held sacred’. Grotius does not feel that this view corresponds to the law of all nations, but only to the law of ‘the better ones’, i.e. the more advanced nations. “Among Christians it is right that the view just presented shall be enforced, not only as a part of military discipline, but also as a part of the law of nations; that is, whoever forcibly violates chastity, even in war, should everywhere be subject to punishment.”28

Grotius does not mention the municipal Articles of War adopted just before or during his own time, and he therefore seemingly fails to reach an assessment of current lex lata. 24

De Jure Belli ac Pacis, Book III, Chapter IV, VI-XIV. This quotation from the so called Martens clause (originally from 1899 and 1907) is taken from the Preamble of the 1977 Additional Protocol II to the Geneva Conventions of 1949. 26 De Jure Belli ac Pacis, Book III, p. 628. 27 Ibid., p. 628. 28 Ibid. All quotations on the matter of rape are to be found at p. 657. 25

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW With regard to slavery, Grotius finds it contrary to nature but nevertheless consistent with the law of nations as a consequence of crime or war. He uses classical quotations to prove that prisoners of war in principle always have been subject to slavery, but he also makes the point that their lives have been spared in practice since Roman commanders used to sell their prisoners and consequently had an interest in keeping them alive.29 The law permitting slavery was not any longer accepted among Christian nations in their mutual relations. These nations had achieved a degree of progress that implied a certain protection of prisoners of war. Moreover, Grotius noted, “the practice of Christians in this matter is followed also by Mohammedans among themselves”.30 It was unclear, however, whether state practice since the Roman times was enough to indicate a new legal situation – a progressive development of the law – according to which prisoners could expect repatriation rather than slavery. It has been argued that basically Grotius’ attitude towards slavery was determined by humanitarian considerations.31 Grotius was clearer with regard to collective punishments. He made the point that since guilt is personal “no one may be justly punished for another’s wrong”.32 The reference to justness implies a reliance on the law of nature rather than the law of nations, since Grotius could not, as a matter of relevant facts, point to a consistent state practice of abstention from collective punishments. He does not mention occupied territory in this context, but, as is well known, the present law of occupation includes the Grotian principle that collective penalties are prohibited.33 In the context of punishments, Grotius makes the point that the ‘internal acts’ of a human being, not leading to any external harmful effects, are not punishable should they come to the attention of others through a confession or otherwise. In effect, he is advancing the principle of freedom of conscience and opinion and consequently argues: “No one deserves to be punished for his thoughts.”34

29

Ibid., Book III, pp. 690 and 692. Ibid., Book III, p. 696. 31 H. Lauterpacht, ‘The Grotian Tradition in International Law’ 23 British Year Book of International Law (1946) p. 45. Lauterpacht offered the following comment on Grotius’ view: “Enslavement of those captured in war was an alternative preferable to the unlimited power, including the right to kill, which, in his view, the customary law of nations and, probably, the law of nature gave to the captor. His treatment of the institution of slavery is permeated throughout by a spirit of charity and mercy.” Ibid. 32 Ibid., Book II, p. 539. 33 Article 33 of the IV Geneva Convention starts out with the following text: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” Article 33 is derived from Article 50 of the 1907 Hague Regulations: “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the act of individuals for which they can not be regarded as jointly and severally responsible.” 34 De Jure Belli ac Pacis, Book II, p. 487. 30

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OVE BRING With regard to asylum seekers, Grotius, who uses the wider term suppliants, makes a distinction between criminals and “those who suffer from undeserved enmity”.35 Only the latter are entitled to asylum, but during the time needed for investigation (“pending the hearing of their case”) all suppliants are to be protected.36 As to those asylum seekers who are accused of having committed crimes, Grotius makes a distinction between crimes of the law of the state of origin and other (international) crimes. If the refugee is found guilty of a crime that is forbidden by the law of nature or the law of nations, then punishment and not asylum should follow. If the crime is against the municipal law of another state then that law has to be considered. The reference to what today is called international crimes makes Grotius seem very modern. His thinking is also reflected in the provisions of the 1951 Convention relating to the status of refugees.37 The moderation/temperamenta part of Book III starts in the middle of the eleventh chapter and concludes with the sixteenth chapter. The word ‘should’ plays a prominent part here. Innocent persons should be protected, as far as possible. Children should always be spared. So should woman and old men, farmers, merchants, prisoners of war and hostages – “unless they have themselves done wrong”.38 A separate chapter is devoted to moderation in regard to prisoners of war.39 Grotius suggests exchange of prisoners of war as the most appropriate course of action, but it is not clear whether this should take place during the conflict and/or after the end of hostilities. At any rate, the option of slavery still belongs to the picture, and detracts from the value of the humanitarian thrust of the temperamenta proposal.40 Grotius’ views on humanitarian intervention are found in Book II of De Jure Belli ac Pacis. The reasons for protecting a population of another state against tyranny is motivated through references to a number of explanatory formulas which are all related to the basis of present human rights discourse. Thus, as reasons for protecting people ‘beyond borders’ Grotius refers to “the right of human social connexion”,41 “a common interest of the human race”,42 “a general responsibility for 35

Ibid., Book II, p. 530. Ibid., Book II, p. 533. 37 Article 1:F of the Convention includes the following wording: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity . . .(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.” 38 Ibid., Book III, p. 742. 39 Ibid., Book III, Chapter XIV, pp. 761–769. 40 Ibid., Book II, p. 769. 41 Ibid., translation by William Whewell in the 1853 abridged version Grotius on the Rights of War and Peace, quoted by F. K. Abiew, Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer Law International, The Hague, 1999) p. 35. 42 Ibid., Book II, p. 505. 36

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW human society”,43 and the “mutual tie of kinship among men”.44 Already in the prologue he insists (through the means of quotation) that a ruler has to take account not only of the good of his own country, but of the whole human race.45 Although Grotius rejects the opinion that sovereignty always resides in the people, he nevertheless argues that the right to revolt or make war “may be conceded against a king who openly shows himself the enemy of the people”.46 A modern reader might think in terms of a rule of exception applicable to the despotism of Pol Pot, Idi Amin, Jean Bedel Bokassa and Saddam Hussein. “Regarding such barbarians, wild beasts rather than men, one might rightly say what Aristotle… said of the Persians… that war against them was sanctioned by nature; and what Isocrates said… that the most just war is against savage beasts, the next against men who are like beasts.”47

Although Grotius did not articulate a thesis of the inherent dignity of the individual as the motivating factor behind his positions, many of his formulations indicate a thought in that direction. At the same time, one has to admit that his concrete positions on the human rights issues mentioned above did not influence later developments in any revolutionary sense. His writings with regard to these specific issues were useful in a progressive development perspective, but not more than so. Other factors in the history of ideas played a more significant role. However, the matter of Grotius’ intellectual influence as to, say, the American and French initiatives on human rights of 1776 and 1789 (the ‘Jefferson-Lafayette doctrine’), is not exhausted with that kind of assessment. We still have to consider whether Grotius, in a more general sense, left something behind which served as a legal platform for later developments. 5. The Grotian Legacy One interesting thing about De Jure Belli ac Pacis is the attention given to crime and punishment. Since Grotius did not limit his treatise to inter-state relations, but also included the legal position of individuals, his references to crimes against the law of nature and nations are relevant with regard to sovereigns as well as their subjects, to states as well as individuals. In fact, the matter of individual responsibility is a dominant theme in some chapters and the modern reader gets a clear impression that Grotius is a spokesman for non-impunity.48 Punishment serves as a deterrent and has a preventive function. It is “for the good of the whole”.49 The intellectual link to current NGO positions on accountability is obvious. Retributive 43

Ibid., Book II, p. 582. Loc. cit. 45 Ibid., Book I, Prolegomena, p. 18. 46 Ibid., Book I, p. 157. 47 Ibid., Book II, p. 506. 48 Ibid. See Chapters XX and XXI of Book II. 49 Ibid., Book II, p. 475. 44

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OVE BRING justice, as it was argued by Grotius and is argued also today, consolidates the international legal order and instils public confidence in the system as such. According to the modern version of this view, prosecutions are seen as the most potent deterrence against abuses of human rights. Grotius would obviously agree. For one thing, he treated international legal problems very much in terms of lawsuits. Grotius also introduced a natural rights theory, in the first chapter of De Jure Belli. He argued that society and law existed to protect natural rights, including private rights, which are “concerned with the interests of individuals”.50 Grotius’ conception of a limited number of subjective rights or legal entitlements ‘naturally’ belonging to any human being is significant. He initiated a shift in the understanding of the concept of jus, “from an essentially objective character to the subjective character embodied in the modern idea of rights”. The quotation is from Benedict Kingsbury, who adds: “Grotius was not the first to see the idea that jus might be something a person has rather than something an action or state of affairs is, but his contribution to developing and transmitting this idea was of great importance in the natural rights tradition.”51

Haggenmacher has concluded that Grotius’ natural rights conception is rather ‘modern’ (whatever its medieval antecedents) and, though not directly put to modern use by him, quite relevant to the history of human rights theories.52 In more concrete terms, Grotius’ distinction between public and private rights was not without ambivalence. Although he noted that public rights, concerned with the interest of the community, were superior to private rights, he also made the point that this superiority was motivated “for the sake of the common good”.53 There was no explicit notion of inherent rights of individuals, but there was an obligation on the part of the Government to exercise its rights taking into account the rights of citizens. The sovereign is bound by the law of nature as a dictate of right reason (recta ratio), according to which governmental acts are measured by standards of ‘rational nature’ and ‘moral necessity’. As a consequence, such acts are either forbidden, enjoined or permitted. Sovereigns (and Governments) have to act accordingly, also in their relations with individuals.54 On the other hand, the individual cannot automatically claim the possession of perfect rights, but also has 50

Ibid., Book I, p. 36. He also stated that “a right becomes a moral quality of a person, making it possible to have or to do something lawfully”. Ibid., p. 35. 51 B. Kingsbury, ‘A Grotian Tradition of Theory and Practice?: Grotius, Law, and Moral Skepticism in the Thought of Hedley Bull’, 17 Quinnipiac Law Review (1997) p. 17. Cf., R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge University Press, 1979) pp. 58–81. 52 P. Haggenmacher, ‘Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture’, in H. Bull et al., Hugo Grotius and International Relations, supra note 18, p. 166. 53 Ibid., p. 36. 54 Ibid., pp. 35–39.

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW to rely on moral action by the state. In such cases the situation reflects the existence of imperfect rights. Hersch Lauterpacht has pointed out that Grotius had faith in man (including the ruler of a particular nation) as a rational being “in whom the element of moral obligation and foresight asserts itself triumphantly over unbridled selfishness and passion, both within the state and in the relation of states”.55

The Grotian teaching included a close analogy of law and morals governing the conduct of states and individuals alike. Lauterpacht stresses that the analogy is not asserted for the reason that states are like individuals, but because states are composed of individual human beings. “The individual is the ultimate unit of all law, international and municipal, in the double sense that the obligations of international law are ultimately addressed to him and that the development, the well-being, and the dignity of the individual human being are a matter of direct concern to 56 international law.”

Today, Fernando Téson argues, in line with a current human rights theory, that Governments have to respect citizens’ rights, inter alia because rights of states under international law are derived from individual rights. The legal system of any given state is in place because the citizens have provided it to the state in question.57 That view is more ambitious and radical than anything Grotius could imagine. It is often noted that human rights by their very nature do away with the distinction between the national and international legal orders. Grotius’ approach to international law also transcends the different jurisdictional spheres. Haggenmacher has pointed out that De Jure Belli manifests not a concept of international law in the modern sense, but of extra-national law, that is a legal system applicable outside the sphere of any municipal legal order.58 Grotius does not automatically perceive this extra-national order as one of universal application, in fact he is often content with limiting its scope to Christianity. He attaches great importance to the generality of state practice, both as a foundation for jus gentium, and as evidence for the law of nature. In this respect he was not followed by his main naturalist successor, Samuel von Pufendorf (1632–94). Pufendorf, and in fact most of the naturalists, saw only reason 55

H. Lauterpacht, ‘The Grotian Tradition in International Law’ 23 British Year Book of International Law (1946) p. 26. 56 Ibid., p. 27. 57 F. R. Téson, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edition, Transnational Publishers, New York, 1997) p. 119. 58 See B. Kingsbury in 17 Quinnipiac Law Review (1997), supra note 51, p. 13, with reference to P. Haggenmacher, Grotius et la Doctrine de Guerre Juste (Presses Universitaires de France, Paris, 1983).

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OVE BRING (and not consent) as the basis for the law of nature. Nevertheless, Pufendorf was heavily influenced by Grotius and by his theory on law and morality. This was clear from the treatise on natural law ‘in eight books’ that Pufendorf published in 1672, as newly appointed professor at the new University of Lund.59 The following year Pufendorf summarized his treatise in a brief volume for students. In the title he put an emphasis on duties instead of rights, but also indicated that he was basically concerned with the position of individuals under natural law. The title refers to “human and civil duties under natural law”.60 Nevertheless, he showed an interest in Grotius’ ideas on the possibility for the individual to claim certain natural rights. For one thing, both of them based their thought on freedom of religion and tolerance of opinion. Like Grotius, Pufendorf visualized humans as social beings capable of building a society. Pufendorf added that as social beings they also understand that the law of nature prohibits them to injure one another. Both the sovereign and the citizens have rights flowing from the social contract theory. The creation of the state implied submission to a ruler who promised social order, and offered the citizens protection. In this social order moral precepts derivable from reason had a binding quality of their own. One basic rule was to treat others as having naturally equal rights by reason of the dignity of all men.61 The Government was bound by the following postulate: “The general law of rulers is this: The welfare of the people is the supreme law.”62

With this reasoning, Pufendorf contributed to the emerging notion that man possessed certain fundamental rights in a state of nature, and that when civil society came into being these rights remained protected by natural law. This position was reaffirmed and further developed in the writings of John Locke (1632–1704). One of the basic tenets of Locke’s thought was tolerance. His political theory was not very original, but the message of liberalism it conveyed was immensely successful. His strongly felt views on individual property rights were not so far from Grotius’ conception of perfect rights. Locke argued, in Two Treatises of Government (1689-1690), that political sovereignty resided in the people. Men were equal, free and independent. By the terms of the social contract any governmental infringement of the fundamental natural rights of the people put an end to the contract and entitled the citizens to reassume their authority. In comparison to Grotius and Pufendorf, who both rejected 59

S. von Pufendorf, De Jure Naturae et Gentium Libri Octo (Lund, 1672). S. von Pufendorf, De Officio Hominis et Civis juxta Legem Naturalem Libri Duo (Lund, 1673). 61 Ibid., Book I, Chapter 7, and Book II, Chapter 9. An English translation by Frank Gardner Moore has been published in Classics of International Law, supra note 5, No. 10, Volume II (Oxford University Press, New York, 1927). 62 Ibid., Book II, Chapter 11, § 3. Quotation from Gardner Moore’s translation, supra note 61, p. 121. 60

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW the notion of the sovereignty of the people, this was a significant change of emphasis. Natural law was now perceived, not only as imposing duties and prohibitions, but also as the source of fundamental rights clearly restricting the freedom of rulers. Royal sovereignty and colonialism was challenged by the idea of democratic rights. As a consequence, the American Revolution was strongly influenced by Locke’s philosophy. The Declaration of Independence of 1776 used the Lockean version of natural law to conclude – in Thomas Jefferson’s words – that “We hold these truths to be self-evident that all men are created equal with certain inalienable rights.”

In fact, Benjamin Franklin, influenced by the philosophic language of Locke, substituted ‘self-evident’ for Jefferson’s original ‘sacred and undeniable’ in this key formulation.63 Later, when American statehood was achieved, politicians and diplomats in Washington appreciated the writings of the Swiss Emmerich de Vattel (1714-1767), whose Le Droit des Gens, first published in 1758, continuously came out in new editions. Vattel, in his time an official in the diplomatic service of Saxony, had a down-to-earth view on international law. He stressed national sovereignty and the role of Governments through the normative use of state practice. He put less emphasis on natural law and introduced a balance between Sovereigns/Governments and nations/peoples. Like Grotius, and also Pufendorf,64 he accepted armed humanitarian intervention in case of “insupportable tyranny” in order to assist “an oppressed people”.65 Thereby he carried further the Thomist and Grotian tradition of recognizing some basic form of ‘rights of peoples’. During the 19th century the concept of humanitarian intervention had a strong support in the international law doctrine, from Henry Wheaton (1836) to Alphonse Rivier (1896).66 In 1910 an influential article was published in Paris by Antoine Rougier, who argued that collective (but not unilateral) armed intervention is called for in situations where state authorities violate “the law of humanity”.67 As we are all aware, the debate on humanitarian intervention has been given new impetus in our time through 63

Bertrand Russell, Wisdom of the West, A Historical Survey of Western Philosophy in its Social and Political Setting (Macdonald, London, 1959) p. 219. 64 S. von Pufendorf, De Officio Hominis et Civis in Classics of International Law, supra note 61, p. 140. 65 E. de Vattel, Le Droit des Gens ou Principes de la loi Naturelle Appliqués à la Conduite et aux Affaires des Nations et des Souverains (1758), translation by Charles Fenwick in Classics of International Law, supra note 5, No. 4, Volume III (Clarendon Press, Oxford, 1916) p. 131. 66 Wheaton’s position was repeated in later editions of his Elements of International Law (e.g. Boston 1866), reprinted in Brown Scott, Classics of International Law, supra note 5, (1936) No. 19, Vol. I., pp. 95–97. Cf., A. Rivier, Principes du Droit des Gens, (2 vols, Arthur Roussseau, Paris, 1896), Vol. I, p. 403 et seq. 67 A. Rougier, ‘La théorie de l’intervention d’humanité’, 17 Revue Générale du Droit International Public (1910) p. 468 et seq.

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OVE BRING Operation Provide Comfort in Northern/Kurdish Iraq (1991), Operation Allied Force relating to Kosovo (1999), and, to a lesser extent, Operation Iraqi Freedom against the regime of Saddam Hussein (2003). 6. Concluding Remarks Somewhat against the odds it has been possible to write an article on Grotius and human rights, a concept that was not articulated or elaborated before or during Grotius’ lifetime.68 On the other hand, a contribution of the present kind tends to deal not only with the ideas of Grotius himself, but to broaden the perspective to the roots of human rights thinking and Grotius’ intellectual relation to whatever had come before him and his influence as to what came after him. In other words, Grotius put in context. Developments post Grotius do not confirm that his ‘human rights positions’ played a crucial role in the legal history of ideas. All the same, there is a link between Grotius, Pufendorf and Locke, but clearly the influence of the Englishman on posterity is beyond comparison. It is the link between Locke, Jefferson and Lafayette that has established the foundation of modern human rights rhetoric. The second article of the 1789 French Declaration on the Rights of Man and the Citizen referred to natural and inalienable rights and the provision specified: « ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression ».

The 1948 Universal Declaration of Human Rights begins with the natural law recitation “of the inherent dignity and of the equal and inalienable rights of all members of the human family”. This is not exactly the way Grotius put it, he was too concerned about sovereign power to introduce any ‘inherency’ language. It is not possible to view Grotius as a champion of human rights in any modern sense. Nevertheless, his contribution to this field of international law is not insignificant. He described an international society of humankind where the individual “had a dignified place and was not merely an object”.69 With regard to this dimension of international subjectivity Hedley Bull has summarized that Grotius “clearly treats the individual person, endowed with reason and thus with access to rules of natural law against which all merely human volitional or positive law can be judged, as an actor in international relations in his 68 At the colloquium in the Hague Peace Palace on 8 April 1983, commemorating the 400th birthday of Grotius, almost nothing was said about his ideas related to human rights, although professor Sperduti made a reference to ‘the dignity of man’ as a Grotian concept. See International Law and the Grotian Heritage, A Commemorative Colloquium, T.M.C. Asser Instituut, The Hague 1985, p. 32. 69 R. J. Vincent, ‘Grotius, Human Rights and Intervention’, in H. Bull et al. (1992), supra note 18, p. 244.

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HUGO GROTIUS AND THE ROOTS OF HUMAN RIGHTS LAW own right, and a bearer of rights and duties that can override those that are imposed by positive law.”70

Although Grotius does not produce a theory on the legal subjectivity of individuals and other international actors, he applies law for a range of entities, including individuals, and thereby comes close to the present position of some authors and NGOs, namely that the individual is a full fledged subject of international law, and (turning completely to modern conditions) not merely an ad hoc subject under UN compliance procedures or regional adjudicative systems. In the Grotian system the position of the individual implies certain natural rights and the Sovereign cannot legally or morally advance ‘reason of State’ arguments to offset these rights. Moreover, the individual should benefit from the idea of peace, which is a prominent feature in De Jure Belii ac Pacis.71 At the same time, both Sovereigns and their subjects are bound by the norms of natural law and have to face the consequences of non-compliance. Principles of accountability and non-impunity apply. In addition to these general contributions of Grotius to legal thought, should be noted his concrete positions on a number of human rights related issues. He was concerned about the treatment of POWs and civilians in armed conflict, including the protection of woman against rape. He felt strongly about the unjustness of collective penalties. He worked on the basis of freedom of religion and explicitly argued for freedom of conscience and freedom of opinion. He was clearly in advance of his time with regard to rights of refugees. He was probably the first to urge the right of the individual to expatriate himself from his home country and acquire permanent residence in another country. Hersch Lauterpacht summarized in his famous article of 1946 that Grotius managed to combine ethics and law in his writing; and further that the ‘Grotian tradition’ in international law includes the total subjection of international relations to the rule of law, the rejection of the ‘reason of State’ argument as a general rule of exception, the affirmation of fundamental rights and freedoms, the promotion of the idea of peace, and the tradition of idealism and progress.72 Although Lauterpacht may be criticized for having injected an overdose of idealism in this description, his final point comes across as convincing to the modern reader of Grotius. The Dutchman has rightly become identified with the idea of progress in international law.

70

H. Bull, ‘The Importance of Grotius in the Study of International Relations’, in Hugo Grotius and International Relations (1992), supra note 18, p. 86. 71 However, there is no equivalent to the modern idea (of some NGOs) to advance the right of peace as an individual or collective human right. 72 H. Lauterpacht, supra note 55, pp. 51–53.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS Vojin Dimitrijeviü and Marko Milanoviü

1. Introduction The primary purpose of international criminal law is to address the most serious violations of fundamental human rights, those which ‘shock the conscience of mankind’. It is therefore of great importance that this evolving branch of international law respects the very principles it is meant to serve. Criminal justice and human rights are closely related: it could be said that the modern notion of human rights can find its origins in the first mechanisms protecting the rights of the accused in criminal proceedings, such as habeas corpus, due process, and the prohibition of torture. As criminal justice by definition implies the use of the coercive powers of the State and the repression of individual freedom, most constitutions and international human rights instruments contain a detailed rendition of rights guaranteed in criminal proceedings. For instance, Articles 57 of the European Convention on Human Rights (ECHR) and Articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR), stipulate the rights to liberty and security, fair trial, humane treatment and the principle of no punishment without law. It should be said that such provisions have always purported to shelter the individual from the overwhelming might of the State. The emergence of criminal justice at the international level presents new challenges to the classical concept of the rights of the accused in a liberal democracy; these challenges are due to some intrinsic features of international criminal law. Namely, international courts and tribunals do not possess a repressive apparatus of their own: they are dependent on the cooperation of states and occasionally on the limited coercive powers of the international community. This has consequences both on the conduct of investigations and the collection of evidence, and on the apprehension of suspects.1 Secondly, the immensely complex

Professor Dr. Dr. h.c., Director, Belgrade Centre for Human Rights, Belgrade, Serbia and Montenegro.

Dipl. iur., LL.M. candidate (Michigan); Researcher, Belgrade Centre for Human Rights, Belgrade, Serbia and Montenegro. 1 One the one hand, the limited enforcement powers of international criminal courts and tribunals usually have an unfavourable impact on the successful prosecution and arrest of suspects, but, on the other hand, they can also severely impede the efforts of the accused and their defence counsel to obtain evidence from unwilling States, as in the Blaškiü case before the ICTY, or to challenge the lawfulness of their arrest, as in the Todoroviü case before the same court. For more, see J. Katz Cogan, ‘International Criminal Courts and Fair Trials: Difficulties and Prospects’, 27 Yale J. Int’l L. (2002) p. 111. 149

VOJIN DIMITRIJEVIû AND MARKO MILANOVIû factual and legal issues raised at international trials necessitate that the latter last considerably longer, and make the use of some traditional institutes of criminal law, such as trial by jury, quite impractical. Finally, international courts deal only with the most serious crimes, which affect the interests of the international community as a whole and which by their gravity warrant prosecution at the international level. International criminal courts deal primarily with high-ranking suspects whom the municipal legal systems are either unable or unwilling to prosecute, and not with immediate perpetrators of atrocities. As a rule, the former possess great power and influence. They usually have an organization supporting them, both in the commission of crimes and in their attempts to escape responsibility, and are more than able to cover up their tracks, obstruct investigations and intimidate witnesses. This has justified the use of some unorthodox mechanisms of substantive criminal law, such as command responsibility and joint criminal enterprise,2 as well as procedural instruments similar to those used in domestic trials for organized crime, as they both require special rules on the collection and admissibility of evidence, witness protection etc.3 Finally, international criminal trials frequently occur in postconflict or ongoing conflict situations and can considerably impact international peace and security. The purpose of these trials is then much wider than mere deterrence, and allows them to become a major way of re-establishing the fundamental principles of justice and furthering the process of reconciliation.4 These distinct features of international criminal proceedings make it impossible to simply transpose to them the human rights standards developed in the context of domestic criminal justice. However, this does not mean that human rights of suspects in such proceedings can be flaunted on the pretext of pursuing some higher aim. International courts and tribunals must respect the fundamental human rights of those who appear before them: this is the only way in which they can maintain their legitimacy. Concern for human rights of the accused has been reflected in rules governing the work of two active ad hoc international tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as the International Criminal Court (ICC), a permanent institution. This paper will attempt to analyze the human rights provisions and safeguards in what can be regarded as contemporary conventional international criminal law, i.e. the statutes and the rules of procedure and evidence of the ICTY, 2 For a general overview, see A. Cassese, International Criminal Law (OUP, 2003) pp. 179200, 207–211, and for detailed analysis see e.g. A. Marston Danner and J. S. Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law’, 93 Calif. L. Rev. (2005) p. 75, as well as K. Ambos, ‘Superior Responsibility’, in A. Cassese, P. Gaeta, J. R.W.D. Jones, The Rome Statute of the International Criminal Court: A Commentary (OUP, 2002) pp. 823871. 3 See e.g., Patricia M. Wald, ‘Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal’, 5 Yale H.R. & Dev. L.J. (2002) p. 217. 4 Also see P. Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, 95:1 A.J.I.L. (2001) p. 7.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS the ICTR and the ICC.5 Particular emphasis will be put on any divergence between these standards and the standards of international human rights law which apply to national criminal proceedings.6 2. General Features of International Criminal Proceedings 2.1. The Normative Framework The origin of the rules governing international criminal trials differs significantly from their municipal counterparts. Criminal procedure and the rights of the participants in the proceedings are laid down in the statutes of the respective courts, and the more detailed rules of procedure and evidence (RPE), which are in the ICTY and the ICTR adopted by the judges themselves sitting in a plenary session, and in the case of the ICC by the Assembly of State Parties. There are also significant normative differences between the ICTY and the ICTR on the one hand, and the ICC on the other, which are mostly the result of the ad hoc nature of the former. The Rome Statute is much more comprehensive than the statutes of the ICTY and the ICTR, as it was a product of a long and arduous negotiation and drafting procedure. For instance, the Rome Statute has 128 articles, while the ICTY and ICTR Statutes have 34 and 32, respectively. The fair trial provisions of the ICTY and ICTR Statutes (Articles 21 and 20, respectively) more or less reproduce the provisions of Article 14 of the ICCPR. This has required the tribunals to rely on and extensively modify the RPE, and utilize the jurisprudence of human rights bodies and the norms of international customary law. On the other hand, the provisions of the Rome Statute (e.g. Articles 557 and 67) are much more 5

To be sure, the statutes of the two tribunals are formally not treaties but have been enacted by the UN Security Council. However, they ultimately derive their authority from the UN Charter and, as far as the rules of interpretation are concerned, they have in practice been regarded as treaties. See P. L. Robinson, ‘Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia’, 11 EJIL (2000) p. 569. On the other hand, the ICC statute is undoubtedly an international treaty, and its interpretation is subject to the rules of the Vienna Convention on the Law of Treaties. 6 In the same vein, those rights which have the same basic features and operation on the international and on the municipal level will not be dealt with here. 7 Article 55 of the Rome Statute represents a significant development of international criminal law, as it specifically stipulates the rights of persons under investigation, i.e. those who have not yet (or never will be) accused by the Prosecutor. However, some rights of importance for the conduct of an investigation, such as the right to privacy, are not mentioned in this article. As the ICC will rely on State cooperation for most of its investigative work, it is not clear what would be the consequences of the disrespect of these rights on the part of State authorities and in the course of an ICC investigation. It would probably be excessive to adopt some sort of a ‘fruit of a poisonous tree’ doctrine, found in adversarial systems as to evidence improperly obtained by the authorities of the relevant state. For a detailed discussion of Article 55, see Salvatore Zappala, ‘Rights of Persons during an Investigation’, in A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 1181–1203.

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû detailed, and on the whole resemble the codes of criminal procedure found in most countries with a civil law tradition. 2.2. The Choice of a Procedural Model and its Impact on Human Rights The drafters of the statutes of international criminal courts and tribunals have always been faced with the choice between the adversarial and the inquisitorial model of criminal procedure. Generally, an adversarial model was chosen, although with more inquisitorial elements added over time. The adversarial or accusatorial model is designed as a contest between two equal parties before a jury, observed by a neutral but passive referee. The trial is divided into two separate parts  the case of the prosecution, after which the defence usually moves for acquittal, and then the case of the defence. Conviction as a rule requires the unanimity of the fact-finding body, i.e. the jury, which must be satisfied as to the guilt of the accused according to a strict evidentiary standard, ‘beyond reasonable doubt’. Sentencing is conducted in a separate procedure, and is usually the prerogative of the judge. The existence of a jury mandates the use of strict and formal rules of procedure and evidence, primarily to shield the jury from improperly obtained or presented evidence. Finally, any appellate review is confined to matters of law and, in exceptional circumstances, those facts which could not have been presented at the trial stage. Adversarial systems have always bestowed great importance on the respect of the rights of the accused, and it is precisely these elements of the adversarial model which have been adopted most readily in both inquisitorial systems and international law. Also, adversarial systems tend to be more efficient  because of the reliance on the parties to produce and present evidence, and on the jury to establish the facts and the guilt of the accused, a judge is able to complete more cases in a shorter time than in most inquisitorial systems.8 On the other hand, the inquisitorial model puts much more emphasis on the public interest: the trial is not designed as a contest between parties but as a way to establish the full truth about a particular event. The judge is the sole master of the proceedings; he presents all the evidence and questions witnesses while the parties have a subsidiary role. The trial is usually preceded by a formal judicial investigation, conducted by an investigative judge (in French the juge d’instruction). The investigative judge is impartial and collects evidence both in favour and against the accused, and compiles a case file, or dossier, containing all the evidence, which is the basis for the trial. In the inquisitorial model, there is no jury in the common law sense. Although some systems do provide for the presence of lay persons in the court, these jurors sit on the same panel and have the same duties as professional judges and decide both on facts and on law. The presence of lay judges on the bench 8

Much of the efficiency of accusatorial systems depends on the institute of plea-bargaining, which is almost unimaginable in European countries. A more limited form of plea-bargaining has been adopted before the ad hoc tribunals, but the very nature of the crimes in question makes this institute less efficient than in some national systems. For more, see J. A. Cook, ‘Plea Bargaining at The Hague’, 30 Yale J. Int’l L. (2005) p. 473.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS and the composition of the chamber usually depends on the gravity of the crime in question. The rules of evidence are not formal, as professional judges are fully capable of freely assessing the probative value of any piece of evidence  so, for instance, hearsay evidence is admissible in inquisitorial while it is not allowed in adversarial systems. Also, judges do not have to subscribe to a strictly defined evidentiary standard in order to convict or acquit; they decide according to their free conviction and belief (Fr. intime conviction). However, this means that judges in inquisitorial systems usually must provide reasoning for their verdicts (unlike the juries in adversarial systems), and that this reasoning is fully subject to appeal, which basically consists of a trial de novo, i.e. a reappraisal of all the factual and legal issues by a higher court. Neither of these two models now exists in its pure form; in a sense, most models of criminal procedure are now ‘mixed’.9 This also applies to international criminal justice. Although a predominantly adversarial model was adopted at the international level (simply because some elements of the inquisitorial systems, such as the investigative judge, are unworkable in an international setting), it has been heavily modified and has acquired some features of the inquisitorial system.10 The first thing to be jettisoned was the jury. It would be impossible to select a jury at the international level  the nationality and language abilities of the would-be jurors are reason enough. A jury in an international court could never provide the same element of democratic legitimacy as in municipal trials. The extremely complex factual and legal issues which regularly come before international courts, as well as the long duration of proceedings, would overwhelm any imaginable jury, and would actually render such a trial manifestly unfair. Yet, trial by jury is regarded as a fundamental right in many legal systems; the lack of such a system at the ICC was even raised as one of the principal legal reasons why the Unites States should

9

For more detailed comparisons of these two systems, especially as seen through the prism of international criminal law, see A. Cassese, supra note 2, pp. 365–387, as well as A. Orie, ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings prior to the Establishment of the ICC and in the Proceedings before the ICC’, in A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 1439–1495. For a very vivid appraisal of the French Cour d’assises by a lawyer with an Anglo-American background, see R. Lettow Lerner, ‘The Intersection of Two Systems: An American on Trial for an American Murder in the French Cour d’Assises’, 3 U. Ill. L. Rev. (2001) p. 791. For an account of the very interesting experience of Italy, a country with a strong civil law tradition which has adopted an adversarial system a decade ago, see W. T. Pizzi and M. Montagna, ‘The Battle to Establish an Adversarial Trial System in Italy’, 25 Mich. J. of Int’l Law (2004) p. 429. Also see M. Findlay, ‘Synthesis in Trial Procedures? – The Experience of International Criminal Tribunals’, 50:1 ICLQ (2001) p. 26. 10 For a general appraisal of international criminal procedure, see the now standard reference work on the subject, by R. May and M. Wierda, International Criminal Evidence (Transnational Publishers, 2002). For a critique of the rules on the admissibility of evidence before international courts from an adversarial point of view see Cristian DeFrancia, ‘Due Process in International Criminal Courts: Why Procedure Matters’, 87 Va. L. Rev. (2001) p. 1381.

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû not (or even could not) ratify the Rome Statute.11 Nevertheless, although trial by jury may be regarded as a fundamental civil right in some jurisdictions and that it undoubtedly contributes to the legitimacy of the judicial process, it has never attained the status of a human right, guaranteed by international law. Even those States that use juries have no problems with their citizens being tried in jurisdictions where juries do not exist and do not even regard this as an obstacle to extradition. The lack of a jury in international proceedings, and the ensuing amalgamation of the trier of fact and the trier of law have also led to the relaxing of formal rules of evidence found in adversarial systems. One of the features of the adversarial system has remained relatively intact, namely, the limited scope of appeals. The appeals chambers of international courts do not conduct a retrial, as appellate courts essentially do in inquisitorial systems, but can reverse factual findings made by trial chambers of first instance in specific cases only if no reasonable trial chamber could have established a given fact beyond all reasonable doubt, which is the same appellate standard of review as the one used in adversarial systems. The principal motive behind this standard of review is procedural economy, i.e. an attempt to shorten the length of proverbially long international trials. The other reason justifying the restricted form of appeals in adversarial systems  the desire to keep the jury’s decision inviolate12, is not applicable in international proceedings.13 3. Fundamental Principles of Criminal Law Appearing as Rights of the Accused 3.1. The Presumption of Innocence The presumption of innocence is a fundamental principle of criminal law, protected by international human rights treaties (see e.g. Article 14 (2) ICCPR, Article 6 (2) ECHR), as well as by the Statutes of the ICTY (Article 21 (3)), ICTR (Article 20 (3)) and the ICC (Article 66). The right to be presumed innocent is comprised of two distinct elements. The first one is absolute and is essentially procedural. As stated by Article 66 (2) of the Rome Statute: “[t]he onus is on the Prosecutor to prove the guilt of the accused”. The burden of proof is a basic feature of an adversarial procedure, and it must always be discharged by the prosecuting party. It is this aspect of the presumption of innocence, focusing on the judicial proceeding itself, that is identical both on the international and the municipal level. The second aspect of the presumption of innocence is much more elusive, and requires that the accused must be treated as innocent both within and outside 11

See e.g. the policy analysis of the Cato Institute at <www.cato.org/pubs/pas/pa-311.html>. Cf. e.g., the VII Amendment to the US Constitution: “no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” 13 For more, see Cassese, supra note 2, pp. 374–375, 430–435. 12

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS criminal proceedings, i.e. that all public actors should refrain from invoking the guilt of an accused person, as long as he/she is not convicted by a final decision of the competent court. However, the presumption of innocence is a legal construct  in free and democratic societies prosecutors generally do not institute criminal proceedings against innocent people. In fact, the requirement for the initiation of criminal proceedings in most countries is the existence of reasonable grounds (sufficient evidence) for believing that a person has committed a crime. The very nature of international crimes, their manifest depravity, and the fact that they often directly or indirectly affect millions of people, makes it impossible to enforce a strict interpretation of this public aspect of the presumption of innocence. It cannot be expected of the multitudes of victims or witnesses to keep their silence or for the media and political factors to maintain the standards developed for ‘ordinary’ crimes. However, this level of decorum can still be expected from court officials, such as the judges or the registrar, who must fully observe the demands of impartiality. 3.2. Nullum crimen, nulla poena sine lege The principle of non-retroactivity of criminal law has long been an essential part of municipal legal systems. However, ever since the Nuremberg trials it has been accepted that the principle of non-retroactivity cannot be used to shield individuals from responsibility under international criminal law. This understanding of the nullum crimen principle is contained in international human rights instruments (e.g. Article 15 ICCPR, Article 7 ECHR). It is a reflection of the rule that States cannot invoke their own internal law to justify disrespect of their obligations under international law14 and conveys the message that international law in these cases directly addresses individuals: it establishes the criminal responsibility of the perpetrator and protects the rights of the victim.15 It should be borne in mind that the original source of international criminal law is in the provisions of international customary law, as subsequently codified by treaty. The provisions of the ICTY and the ICTR Statutes, as well as the Rome Statute of the ICC, are not principally of a substantive nature, such as those found in the criminal codes of many states; they are predominantly jurisdictional, as they define the crimes over which a particular international court has jurisdiction. This necessitates the use of customary law and makes the role of the courts in defining and interpreting the criminal offences much greater than in most States with a civil

14

See for example, Article 32 of the Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the International Law Commission at its fifty-third session (2001). 15 For an interesting discussion of the principle of non-retroactivity in international human rights law, albeit in a somewhat different context, see the case of Streletz, Kessler and Krenz v. Germany before the European Court of Human Rights (Appl. no. 34044/96 ECHR 227, 22 March 2001).

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû law tradition.16 The statutes of the two ad hoc tribunals do not contain an explicit statement of the non-retroactivity principle, while the Rome Statute does (Articles 22 and 23); it also prohibits the expansion of criminal law by analogy. It has not been claimed that the lack of an explicit statement of the nullum crimen principle in the statutes of the two ad hoc tribunals and the application of this principle in the jurisprudence of these tribunals has lead to any miscarriage of justice. The purpose of the principle has always been to shield the individual from the might of the State and to prevent punishment for acts which could not be seen by the perpetrator to be prohibited or criminal. It cannot be seriously maintained that perpetrators of international crimes could not have foreseen that commission of crimes by them would lead to their criminal responsibility, even if these acts were not explicitly prohibited as such under their own internal criminal law, or if their own law in some way justified their criminal acts. E.g. the fact that the category of crimes against humanity did not exist in the criminal codes of the countries of the former Yugoslavia does not mean that individuals cannot be held accountable for such crimes, especially so because the ‘ordinary’ crimes of which the crimes against humanity consist, such as murder, rape, assault and pillage were punishable. The application of the nulla poena sine lege principle poses more serious questions, as international law does not define precise penalties for international crimes – the original purpose of international criminal law was for States to incorporate its rules into their own criminal law and thus adapt them to their own penal systems. Article 24 (1) of the ICTY Statute prescribes that “[t]he penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.” (A similar provision can be found in Article 23 (1) of the ICTR Statute, and in the RPE of both tribunals (Rule 101 (b)). The practical effect of these provisions  other than excluding the imposition of the death penalty  has not helped increase legal certainty in sentencing. There had been virtually no judicial practice regarding crimes against international law, both in the former Yugoslavia and in Rwanda, so recourse could only be made to the national courts dealing with ‘ordinary’ crimes. The punishments in the criminal codes of the former Yugoslavia were much milder than those meted out by the ICTY  for instance, the maximum term of imprisonment was only 15 years.17 The ICTY, on the other hand, has administered the penalty of life imprisonment;18 it has also sentenced several defendants to a term of more than 40 years.19 This deviation from the general practice regarding 16

See in this regard Cassese, supra note 2, pp. 145–147. Although the death penalty could also be imposed, it was routinely substituted for a special sentence of 20 years imprisonment. 18 Milomir Stakiü was convicted of crimes against humanity in the Prijedor region of Bosnia, and sentenced to life imprisonment by the Trial Chamber (IT-97-24-T, Judgment of 31 July 2003). The case is currently under appeal. 19 In the Delalic (IT-96-21-T, Judgment of 16 November 1998, paras. 1193 and 1194) and the Aleksovski (IT-95-14/1-T), Judgment of 25 June 1999, para. 242) cases, the ICTY concluded 17

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS sentencing in the former Yugoslavia can be justified by the existence of the death penalty in the criminal legislation of both the former Yugoslavia and the successor States, despite a de facto moratorium at the time of the commission of the offences though this justification is not devoid of serious criticism.20 While all successor countries of the former Yugoslavia have legally abolished the death penalty upon being admitted to the Council of Europe and acceding to the ECHR, the situation in Rwanda is substantially different: it continues to use the death penalty, which has been pronounced upon all higher-level genocidaires, and in general prison sentences are much harsher.21 However, the ICTR, like the ICTY, does not employ the death penalty, in accordance with international human rights standards, so the highest ranking perpetrators of the 1994 genocide are being punished more leniently than their subordinates. The ICTR has taken this fact to heart, and has applied the ‘general practice’ provision of its Statute even more strictly than the ICTY. In what amounts to a perversion of the nulla poena principle, the Tribunal has not applied the general practice of Rwanda courts at the time of the commission of the offence, but has routinely called upon the contemporary court practice regarding sentencing of the convicted genocidaires.22 The Statutes of the two ad hoc tribunals do not prescribe strict ranges of punishments. This can be justified by two considerations. On the one hand, crimes against international law are by their very nature so serious that they deserve the most severe punishment, but, on the other, it is necessary to distinguish between the principal orchestrators of gross violations of international humanitarian law and the numerous immediate perpetrators of such crimes. More lenient sentencing can also serve as an incentive for cooperation of the defendant with the prosecutor in providing evidence against the accused of higher rank.23 The Rome Statute of the that the requirements of Article 24 of the Statute are merely indicative, and not mandatory for the court. 20 Interestingly, this same justification has been used in the 2003 Basic Criminal Code of Serbia, which now stipulates (Article 4 (3)) that if at the time of the commission of the criminal offence the death penalty has been prescribed for that offence, a sentence of 40 years of imprisonment can be imposed. This provision is contrary to the previous practice in Serbia, whose courts always replaced the death penalty by 20 years imprisonment, in accordance with the previous Criminal Code of Yugoslavia. 21 The Rwandan penal code also allowed for the punishment of life imprisonment. It should be said that before the 1994 genocide the death penalty was abolished de facto, and that the sentence of life imprisonment was imposed extremely rarely. For more, and for a critical discussion of the application of the principle before the ICTY and the ICTR, see W. Schabas, ‘Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals’, 11 EJIL (2000) p. 521. 22 Id. 23 A good example can be found in the jurisprudence of the ICTY regarding the Srebrenica genocide, in the cases of Dražen Erdemoviü, a soldier in the army of the Bosnian Serbs, who confessed to participating in the executions and personally killing more than a hundred people, and General Radislav Krstiü, a high ranking officer deeply involved in the massacre, but who did not personally execute anyone. The Tribunal sentenced Erdemoviü, who later

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû ICC (Article 77) introduces some changes in respect to penalties  thus, for instance, a sentence of imprisonment can be imposed up to a maximum of 30 years, or, if the crime is especially grave and if the individual circumstances of the convicted person so warrant, a term of life imprisonment can be imposed. The Statute also allows the imposition of fines, according to the criteria provided for in the RPE, as well as for the confiscation of the proceeds of the crime itself.24 3.3. Ne bis in idem The principle of ne bis in idem prohibits trying the same person again for the same crime, and is fundamental in most legal systems, as well as protected by international human rights law (see Article 14 (7) ICCPR). A common exception to the rule is a re-trial in favour of the defendant, i.e. if he was found to be guilty in the first trial. This principle is also protected by international criminal law (Article 10 ICTY Statute, Article 9 ICTR Statute, Article 20 ICC Statute), though in a somewhat modified variant, which is conditioned by the very purpose of international criminal justice. Namely, one of the primary reasons for trying the perpetrators of crimes against international law before international courts is that States have often been unable or unwilling to prosecute them. The international community cannot tolerate that agents of a State, sheltered by state sovereignty, commit with impunity atrocities against their own citizens. This was also the motive behind declaring the primacy of the existing international criminal tribunals over national courts. The ICC, on the other hand, is meant to be complementary with municipal jurisdictions, but it is also there to check whether domestic courts conduct proceedings in an internationally acceptable manner.25 Therefore, Article 10 of the ICTY Statute (and, in the same words, its counterpart in the ICTR Statute), states that “[n]o person shall be tried before a testified in the Krstiü trial, to five years imprisonment, while Krstiü received 35 years of imprisonment on appeals, as an accessory to genocide. 24 For a detailed analysis see S. Lamb, ‘Nullum crimen, nulla poena sine lege in International Criminal Law’, in A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 733–766. 25 Despite the fact that the Rome Statute is a treaty and that the ICC’s jurisdiction is primarily based on the consensus of the parties to the treaty, Article 13 of the Rome Statute empowers the Security Council, acting under Chapter VII of the UN Charter, to refer to the Court a ‘situation’, even if there is no other basis for the Court’s jurisdiction, i.e. according to the territoriality and personality principles. This was apparently done in order to avoid setting up new ad hoc tribunals. The first, and thus far only situation in which the Security Council has referred a situation to the ICC regards the Darfur region in Sudan, which is not a party to the Rome Statute (Resolution 1593, 31 March 2005, adopted with the United States abstaining, and not vetoing, despite its long-standing objections to the ICC, available at <www.iccnow.org/documents/declarationsresolutions/unbodies/1593/SC1593.31March05.pdf >). For more on this basis of the Court’s jurisdiction see L. Condorelli and S. Villalpando, ‘Can the Security Council Extend the ICC’s Jurisdiction?’ and ‘Referral and Deferral by the Security Council’, in A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 571–582, 627–656.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal” and that “[a] person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.” Similarly, Article 20 (3) of the ICC Statute prescribes that “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”

From a human rights standpoint, the principal shortcoming of Article 20 of the Rome Statute is that it does not address a major issue of contemporary international law regarding individual responsibility for mass atrocities, that is, the conflict of the victims’ right to justice and an effective remedy and the sovereign right of States to proclaim amnesties and confer pardon. Although in exceptional cases, such as in South Africa, amnesties and pardons may further the process of reconciliation, they must never be allowed to stand in the way of combating impunity. Amnesties which have the sole purpose of protecting the perpetrators of crimes against humanity from responsibility are contrary both to customary and conventional international human rights law, as witnessed by the decision of the Inter-American Court of Human Rights in Barrios Altos case;26 they also violate fundamental constitutional principles, as shown by the recent striking down of amnesty laws by the Argentine Supreme Court.27 Though the ICC will undoubtedly follow the same reasoning, an explicit statement to that effect should have been made in the Rome Statute.28 4. Due Process Rights Statutes of the international courts and tribunals guarantee almost all due process rights found in most adversarial, as well as inquisitorial systems, such as the right of the accused to be informed of the charges against him, the right of the accused to 26

Barrios Altos Case [2001] IACHR 5 (14 March 2001), available at <www.worldlii.org/int/cases/IACHR/2001/5.html>. 27 See at . 28 For more, see C. Van den Wyngaert and T. Ongena, ‘Ne bis in idem Principle, Including the Issue of Amnesty’, in A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 705–729.

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû remain silent, or the duty of the prosecution to disclose any exculpatory evidence, as well as the more structural principles, such as impartiality and independence of judges.29 We shall deal here only with those rights with specific manifestations on the international level.30 4.1. Detention on Remand Detention is an essential tool in all legal systems: it is designed to secure the presence of the accused at the trial and to preserve the integrity of the evidence. According to the jurisprudence of human rights bodies, as well as the general practice in most countries with a civil law tradition, the presumption of innocence requires that detention must be used sparingly, only if there is a sufficient and substantiated cause for such a measure  e.g. risks of escape, tampering with evidence, intimidating witnesses etc.  and only if such risks cannot be reduced by the use of less restrictive measures, such as bail or house arrest. Codes of criminal procedure of many countries divide detention on remand into several phases, most commonly a pre-trial stage (i.e. pending the formal judicial investigation), the trial stage, and the appeals stage, and usually prescribe strict time limits for the duration of detention in each of these phases.31 In the opinion of the European Court of Human Rights, in no case, however serious, should detention be regarded as mandatory. However, at the international level detention is the rule rather than the exception, both in law and in actual practice. Thus, for instance, while very little criticism has been levied against at the ICTY in regard to the living conditions in the ICTY’s Detention Unit, the duration and conditions for ordering detention have posed problems as to the protection of the detainees’ human rights. In contrast to the prevailing European human rights standards regarding detention, the ICTY RPE provide that upon arrival in the seat of the ICTY, the accused shall be detained in a facility provided by the host country (Rule 64), and that the accused may temporarily be released until the beginning of their trials if they and the States to which they ask to be released provide sufficient guarantees (Rule 65). A pre-trial judge’s detention order is strictly formal: the judge does not assess whether there are grounds for ordering detention, but is bound by Rule 64 to issue such a decision automatically, irrespective of the circumstances of the case. The rules prescribe no limits on the duration of detention, and even those accused that were temporarily released pending trial must again be detained for the duration of their trials. The strictness of the ICTY detention regime can also be statistically assessed  as of 29

See e.g., T. Meron, ‘Judicial Independence and Impartiality in International Criminal Tribunals’, 99 A.J.I.L. (2005) p. 359; R. Mackenzie and P. Sands, ‘International Courts and Tribunals and the Independence of the International Judge’, 44 Harv. Int’l L.J. (2003) p. 271. 30 For more on the right to a fair trial in international criminal proceedings see R. May, M. Wierda, supra note 9, pp. 259–98 and Cassese, supra note 2, pp. 389–405. 31 A similar approach has been adopted by the ICTY only in respect of detention of a suspect (not an indicted person) during an investigation, which is limited to 90 days. See Rule 40 bis of the ICTY RPE, and S. Zappala, supra note 6, pp. 1193–1995.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS August 2005, 56 accused were in detention, while only 22 were provisionally released to be remanded to custody pending the beginning of their trial.32 The process of State cooperation with international courts regarding the apprehension of their nationals charged with crimes against international law is always complicated and fraught with political difficulties, even intentional obstructionism. An international criminal court cannot therefore be expected to release defendants charged with the most grievous crimes, or who have avoided arrest for considerable time, without firm guarantees from the accused and the relevant State. Yet, the excessive length of detention remains the biggest problem in the sphere of the human rights of detainees. For example, the former Bosnian Serb official Momþilo Krajišnik was arrested and placed in ICTY detention on 3 April 2000; his trial has begun on 4 February 2004, meaning that the total time of his pretrial detention amounted to 3 years and 10 months. However, as stated by some commentators, the length of detention does depend on the circumstances of each case, and the European Court of Human Rights has found an instance of detention of six years to be consistent with the ECHR.33 Another major problem is the absence of a remedy for compensation for persons who were unjustly detained or convicted. Almost all democratic legal systems guarantee the wrongfully convicted or detained persons the right to rehabilitation and compensation from the State.34 Article 5 (5) and Article 9 (5) ECHR stipulate the right to compensation for unlawful detention, while Article 3 of Protocol No 7 to the ECHR and Article 14 (6) of the ICCPR provide for such a remedy in respect of wrongful convictions. The statutes of ICTY and ICTR do not foresee such mechanisms, but this shortcoming was addressed in the Rome Statute of the ICC (Article 85): “1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her. 3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from 32

See at <www.un.org/icty/glance/index.htm>. See P. Robinson, supra note 5, at p. 583, citing Van Dijk. 34 In Serbia this procedure has two stages – an administrative one, in which the person concerned negotiates with the Ministry of Justice, and a litigant one, in which persons not satisfied with the outcome of negotiations with the Ministry may seek satisfaction before a competent court. 33

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû detention following a final decision of acquittal or a termination of the 35 proceedings for that reason.”

It is unclear whether wrongfully convicted or detained defendants before the two ad hoc tribunals could receive any compensation through arbitration against the United Nations themselves, as it is the Security Council which has created the tribunals. In any case, this would be a long and needlessly expensive way to obtain a right which is generally recognized and respected. It would be wise for the Security Council to act on this matter and establish a mechanism for compensation, as there have already been cases, such as that of the Kupreškiü brothers, which would warrant it.36 4.2. The Right to a Trial within a Reasonable Time The right to a trial within a reasonable time and without undue delay is laid down in international human rights treaties, as well as in the statutes of international courts and tribunals, and has probably been the single most invoked right before the European Court of Human Rights under Article 6 (1) of the ECHR. As noted, the fact that the accused before international courts remain in detention for the duration of their trial makes it all the more important that the latter be conducted expeditiously. This is not always possible, both because of the complex legal and factual issues involved, and due to the lack of sufficient resources at the disposal of the international courts.37 The Security Council has tried to alleviate the problem of excessive delays by amending the Statute of the ICTY and introducing ad litem judges (see Articles 12, 13 bis, 13 ter and 13 quater of the ICTY Statute). Furthermore, because international courts must rely on State cooperation to obtain key evidence, documents and witnesses, as well as to apprehend the accused, delays in criminal proceedings are not always imputable to the court itself. Language issues also plague international courts  for instance, the ICTY must translate all relevant documents, as well as provide interpretation, from and into English, French, Bosnian/Croatian/Serbian, and sometimes Albanian. The desire of several accused to act as their own counsel may also greatly contribute to prolonging the trial (see infra 4.3). These factors warrant a more lenient standard of reasonableness regarding the duration of the proceedings.38

35

For more, see A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 1577–1588, See S. Beresford, ‘Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals’, 96:3 A.J.I.L. (2002) p. 628. 37 Though a lack of resources is usually not a justification in the national context, it is much more pronounced on the international level, and especially so with the two ad hoc tribunals, which have now entered their completion phases. See also L. D. Johnson, ‘Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity’, 99:1 A.J.I.L. (2005) p. 158; D. A. Mundis, ‘The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Tribunals’, 99:1 A.J.I.L. (2004) p. 142. 38 See Cassese, supra note 2, pp. 398–400. 36

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS 4.3. The Appointment of Counsel and the Right to Self-Representation Both national legal systems and international human rights law guarantee the right of defendants in criminal trials to represent themselves without the assistance of defence counsel. However, there are fundamental differences between adversarial and inquisitorial systems regarding the scope of the right to self-representation, and these differences have also emerged at the international level. 39 To date, three accused before the ICTY have invoked their right to represent themselves, with mixed success  Slobodan Miloševiü, Vojislav Šešelj and, most recently, Momþilo Krajišnik. The Chamber presided by the late judge Richard May allowed Miloševiü to defend himself with the help of three legal assistants of his own choosing, although it also appointed three experts in various fields of law as amici curiae, whose task was to monitor, as officers of the Tribunal, the impartiality and fairness of the trial and to defend, to a certain extent, the interests of the accused. 40 In contrast, Judge Wolfgang Schomburg appointed stand-by counsel for Vojislav Šešelj, also against his explicit objections.41 There are three ways of analyzing the assignment of defence counsel against the express wishes of the accused in any given case. The first question is one of principle  whether the right of the accused to self-representation is absolute or subject to specific restrictions. Many European legal systems, such as the French, German, Belgian and the one in Serbia and other countries of the former Yugoslavia, recognize the institute of mandatory defence for certain serious crimes, presuming that the accused may not be able to defend himself successfully.42 Thus, for instance, Article 71 of the Serbian Code of Criminal Procedure prescribes that all accused charged with crimes carrying a sentence of a minimum 10 years imprisonment (therefore including genocide, war crimes and crimes against humanity) and all accused who are in detention on remand, must be represented by 39

For more, see N. Jorgensen, ‘The Right of the Accused to Self-Representation before International Criminal Tribunals’, 98:4 A.J.I.L. (2004) pp. 718–722. 40 As the presentation of the prosecution’s evidence in the Miloševiü case was interrupted a number of times due to the poor health of the accused and the beginning of the defence case was postponed after the resignation and subsequent death of presiding judge May, the Trial Chamber decided to assign defence counsel to Miloševiü, which reasoned that his weak health would most probably cause further interruptions in the trial. The Tribunal’s Registrar assigned two of the amici curiae, Steven Kay and Gillian Higgins, to be Miloševiü’s defence counsel, while Timothy McCormack remained the sole remaining amicus curiae. The decision on the appointment of defence counsel sparked a lot of controversy in the Serbian public and drew criticism by some legal experts. 41 See Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj in His Defence, 9 May 2003. The case of Vojislav Šešelj is currently in the pre-trial stage. 42 E.g., the French Code de Procedure Penale, Articles 274 and 317; Belgian Code d’instruction criminelle, Article 294; German Strafprozeßordnung, cited in judge Schomburg’s decision in the Šešelj case.

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû counsel, whether they want it or not. Another provision deals with the assignment of counsel by the court if the defendant is indigent. However, there are fundamental differences between inquisitorial and adversarial systems regarding appointment of counsel, and, more importantly, as to the role the advocate plays in the proceedings. In inquisitorial systems, the accused, after appointing counsel, is not prevented from actively participating in the proceedings. On the other hand, in adversarial systems the right to selfrepresentation is almost absolute,43 but as soon as a defendant retains counsel he can no longer participate in the proceedings in an active manner. Article 21 (4.d) of the ICTY Statute, which relies heavily on Article 14 (3(4)) of the ICCPR, prescribes that an accused shall have the right to defend himself but will be assigned legal assistance in any case where the interests of justice so require, and without payment by the accused in any such case if he/she does not have sufficient means to pay for it. An identical provision to that of the ICTY Statute can be found in the ICTR Statute (Article 20 (4.d)) and the Rome Statute of the ICC (Article 67 (1.d)). In other words, appointment of counsel is not reserved only to those situations in which an accused cannot afford to hire an attorney. This is also the position of the European Court of Human Rights, which, in its judgment in Croissant v. Germany (Series A No 237-B, Judgment of 25 September 1992), found that the provision of the German Code on Criminal Procedure regarding mandatory assignment of counsel in specific circumstances was compatible with the ECHR. Another relevant precedent comes from the Human Rights Committee, which in Michael and Brian Hill v. Spain (Communication No. 526/1993) opined that the accused before a Spanish criminal court must have been allowed to represent himself in the circumstances of that particular case, but did not claim that the right to self-representation was absolute. The second question is whether interests of justice in a particular case require the imposition of a defence counsel. In the Miloševiü case, it appears that the inefficiency and legal irrelevance of Miloševiü’s defence, who has defended his place in history and dealt at length with matters which do not affect his criminal responsibility, would be sufficient grounds to impose defence counsel in any inquisitorial legal system, where the principle of material truth in a criminal proceeding is paramount. The ICTY judges have, however, adopted a different approach and, on the basis of confidential data, assessed that Miloševiü’s health was endangered to the extent that he would soon be unable to actively defend himself. This brings us to the issue whether the defendant’s medical capacity to represent himself is equal to his medical fitness to stand trial. The answer to this question is negative as well. To be sure, the state of health of a defendant, allowing him/her to defend himself in court implies a high degree of mental and physical activity. The accused has to collect and analyse evidence and to prepare witnesses and arguments. However, these activities are unnecessary in the case of an accused represented by 43

It has even been used in an Al Qaeda related case in the US, with the defendant with no legal education representing himself, even though his alleged offence is punishable by death. See N. Jorgensen, supra note 38, pp. 711–712, 716–719.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS counsel. The likelihood of Miloševiü’s health deteriorating to the point when the trial must be adjourned should not be ruled out. The final question is not one of law, but of judicial policy: although the Chamber had the right to assign defence counsel to Miloševiü, the question arises whether it should have done so. In this case, the Chamber should have been guided by the principle that the public impression of a fair trial is as important as the trial itself. When faced with obstruction by defence witnesses, who refused to appear before the Tribunal because Miloševiü had been deprived of his right to selfrepresentation, the appointed counsel themselves appealed the decision on their assignment to the Appeals Chamber. They requested the Tribunal to allow them to withdraw from the proceedings due to the total absence of cooperation and communication with their client and the ensuing ethical problems. The Appeals Chamber44 did not reverse the Trial Chamber decision as to the assignment of counsel as such  Miloševiü is still represented by counsel imposed on him contrary to his wishes. The Appeal Chamber found that the Trial Chamber had discretion with regard to the management of the proceedings, that it had not abused its powers, and that it had been guided by its duty to complete the trial within reasonable time. However, the Appeals Chamber changed the modalities of the duties of the appointed counsel so that Miloševiü now conducts the examination-inchief of witnesses and controls the presentation of evidence of the defence, while the appointed defence lawyers play a subsidiary role and examine witnesses after Miloševiü, or when Miloševiü is unable to question them himself. The Appeal Chamber based its decision on the principle of proportionality, finding that the modalities must be formulated so as to minimally infringe the rights of the accused and that the Trial Chamber had erred in that respect. After the Appeal Chamber decision, the Trial Chamber dismissed the request of the appointed counsel to withdraw from the proceedings and Miloševiü continued to conduct his own defence. The right to self-representation is not absolute either in national legal systems, in international human rights law or in international criminal law. It must not be used as a pretext of making a mockery of the trial, or as an excuse to evade the principal purpose of a criminal trial  the determination of a defendant’s guilt or innocence. However, utmost caution must be exercised and both fairness and the appearance of fairness must always be maintained. Inter alia, this means that alternative modalities, which are foreign to traditional adversarial systems, must be found in order to assure the active involvement of the accused in his trial, if he so desires.45

44

Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004. 45 See also N. Jorgensen, supra note 38, pp. 725–726.

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû 5. The Rights of Victims The accused is the focus of criminal proceedings – it is his rights and liberty that are in jeopardy. On the other hand, the purpose of international criminal law is to redress the most serious and massive human rights violations, which endanger the very fabric of the international community and of civilized society. For the victims of international crimes, it is therefore of great importance to appear in court, to confront those who have violated them and to achieve some measure of satisfaction. Their voices must be heard, their pain and anguish known, their names not forgotten. Many European legal systems have given victims some standing in criminal proceedings, in which they can have the status of (subsidiary) parties, are able to address the court and to examine witnesses, and are also allowed to file requests for compensation, which will, if possible, be decided on in the same criminal proceeding. However, in adversarial systems the victim has no standing in court, as it is the prosecutor who has almost unlimited control and discretion over criminal prosecution. At the most, victims can appear before the court as witnesses, insofar as they are called by one of the parties; they can only sue for damages in a separate lawsuit. The position of victims before the ICTY and the ICTR has been similar to that in adversarial systems, although both the judges and the prosecution have tried to accommodate their demands. The Rome Statute grants some special rights to victims, expanding their role in the criminal proceedings and thereby again deviating from the traditional adversarial model. It establishes an effective remedy through which victims can obtain at least some compensation for the violation of their human rights. In cases of massive atrocities, victims usually cannot receive any reparations from the perpetrator(s), as most of the latter do not possess enough assets, or are not in the jurisdiction of a specific State. Their best chance to get compensation, and at that a very flimsy one, is to sue the State itself, as the perpetrators of massive human rights violations have usually been agents of the State, a fact which entails its responsibility. However, this route is almost invariably fraught with practical and legal difficulties, such as sovereign immunity or expiry of the statute of limitations regarding compensation. The Rome Statute (Article 75) gives the Court the authority to determine the scope and amount of any damages suffered by the victim, and to make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. The Rome Statute goes even further in Article 79, which provides for the establishment of a trust fund for victims, to which States Parties to the Statute will contribute, and from which the victims will be compensated, if such compensation cannot be secured from the perpetrator himself. The success of this mechanism will entirely depend on the willingness of States to contribute to this fund.46 To obtain reparation, victims have to file a written application with the Registrar of the ICC, which must contain the evidence and 46

As of June 2005, states have pledged 400.000 euros. See at <www.icc-cpi.int/library/about/ newsletter/4/pdf/ICC-CPI_NL4_En.pdf >.

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HUMAN RIGHTS BEFORE INTERNATIONAL CRIMINAL COURTS information laid down in Rule 94 of the ICC RPE (the full procedure regarding compensation is outlined in Rules 9499 of the ICC RPE). Article 68 of the Rome Statute, entitled “Protection of the victims and witnesses and their participation in the proceedings” provides for measures to safeguard the dignity and physical and mental integrity of the victims if they appear before the Court as witnesses, such as conduct of proceedings in camera or the presentation of evidence by electronic means It also stipulates that: “[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.” The modalities of the participation of victims in the proceedings are laid down in Rules 8593 of the ICC RPE, and entail, inter alia, the right of the victims to choose legal representatives, file submissions to the Court both in the pre-trial and the trial stage, question witnesses through their representatives upon leave from the Trial Chamber, and the duty of the Court and the Registrar to notify the victims of the developments in the proceedings.47 6. Conclusion The Statutes and the rules of the international criminal courts and tribunals are in general conformity with the body of international human rights law, though with certain qualifications. It is sometimes not possible to apply these standards in the same manner in municipal and international criminal proceedings. Yet, this does not mean that international criminal courts can disregard long-established rules of judicial propriety and due process. The respect of human rights of all participants in criminal proceedings is a value in and of itself. There are, however, at least two more reasons why international courts must exercise extreme care and restraint. The first is that, unlike most national courts, international criminal courts are under no regime of external judicial control and review as to their respect for human rights of participants in proceedings. No defendant whose human rights have been violated before an international court can file a complaint to the European Court of Human Rights, to a UN treaty body, or even to the national courts of the Netherlands, Rwanda, or any other State. Second, the main purpose of international criminal justice being to redress the most grievous violations of human rights, these same human rights must be respected in the course of international criminal proceedings. If international courts are to assist in any way the process of reconciliation and transitional justice, they must follow the highest standards of fairness, for the people on all sides of wars and 47

See also A. Cassese, P. Gaeta, J. Jones, supra note 2, pp. 1355–1370, 1387–1420.

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VOJIN DIMITRIJEVIû AND MARKO MILANOVIû conflicts have to trust these judicial institutions and believe in the veracity and fairness of their decisions. It does not suffice that justice is done before international courts, but it must also be seen to be done.

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Lennart Aspegren* The Role of the United Nations After having been presented by Secretary-General Kofi Annan to the 2004 Stockholm International Forum, a new mechanism within the United Nations has now been created to more efficiently bring issues on genocide and other massive violations of human rights forward to the Security Council. This reform was no doubt to a great extent a result of the 1994 experience in Rwanda. To say that the UN has an important role to play in humanitarian affairs is to say that there is a need for the Organization and its Members States to function effectively and efficiently and, when faced with acute crisis situations, to act with one voice, without individual states being able to derail the process. This article aims, by way of summarily reviewing the 1994 Rwanda crisis and the international community’s handling of it, to illustrate the resulting but absolutely unnecessary powerlessness of the UN. In 1994, despite the availability of information, a combination of internal malfunctioning and national interventionism and protectionism paralysed the UN and made it of little utility in the face of a genocide. The UN was not well-prepared enough for this kind of situation with a very clear need to adequately intervene. When it eventually started its peacekeeping intervention, this was based on incorrect presumptions. The mandates from New York became far too limited. The chains of command/responsibility were disorganized. In practice, both at UN Headquarters and in the field, the mandates were implemented in an anxious and unsteady way, and the decided military intervention became problematic. Headquarters only too late corrected their initial points of departure. In brief, a lack of political will resulted in helplessness. Rwanda is a pivotal example of what can happen when the international community is paralysed. I share the opinion that, over ten years after these events, it is high time for us to draw the relevant conclusions for the future. Prevention of genocide must be given a more prominent place on the agenda. The lessons learnt, I am convinced, prove the importance of giving the UN a crucial role in international crisis and conflict management.

*

LL.M. (Stockholm University); Under-Secretary-General of the United Nations and Judge at the International Criminal Tribunal for Rwanda (ICTY) 1995 to 2000. 169

LENNART ASPEGREN One of the Worst Atrocities in History Over the course of 100 days, genocide, ‘the crime of crimes’, occurred in Rwanda in 1994. It is estimated that at least 800,000 and maybe up to one million people were murdered. How is it possible that, in this day and age, such shocking massacres were allowed to happen? Why is it that the international community and the United Nations, despite apparently clear warnings, failed to stop the madness? What lessons are to be learned from this experience? There is a rapidly growing literature on the events leading to the massacres and on the genocide itself. My own home-made bibliography today covers some twentyfive pages of titles.1 Several reports have also been prepared, some of which contain a number of useful suggestions as to how to improve effectiveness and efficiency in the UN’s general crisis preparedness and crisis handling. Before treating one of these reports, namely the so-called Carlsson Report,2 it might be useful to try and briefly recall the key events of 1994 as they appear in relevant books, articles and reports.3 Rwanda Landlocked Rwanda, often called ‘The country of the thousand hills’, is situated in the Great Lakes Region, in the very heart of Africa, neighbouring Uganda, Tanzania, Burundi and the Congo-Kinshasa. It is a small and dizzyingly beautiful country with fertile land, lush vegetation, abounding water (including the sources of the Nile), farms, villages, towns, 1

Including A. Des Forges, Leave None to Tell the Story:Genocide in Rwanda (Human Rights Watch and Fédération internationale des ligues des droits de l’homme, New York, 1999), 789 pages; Organization of African Unity (senior writer: G. Caplan), ‘Rwanda: The Preventable Genocide’, Report of the International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and Surrounding Events (OAU, Addis Ababa, 29 May 2000), 318 pages; and L. Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (Zed Books Ltd., London and New York, 2000), 352 pages; Swedish translation: Att förråda ett folk: Västmakterna och folkmordet i Rwanda (Ordfront, Stockholm, 2003), 351 pages. An updated Bibliography available through e-mail (), also at the Raoul Wallenberg Institute, Lund University, Sweden (<www.rwi.lu.se/LIBRARY1.htm>). 2 ‘Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda’ (United Nations Security Council S/1999/1257, New York ,1999), 82 pages; <www.un.org/News/ossg/rwanda_report.htm>. 3 For data in the following text, a general reference is made here, firstly, to the sources mentioned in supra note 1, secondly, to the Carlsson Report supra note 2, and, thirdly, to the documentation of the UN International Criminal Tribunal for Rwanda (ICTR), Arusha, Tanzania (<www.ictr.org>), including comprehensive testimonies by Professors Alison Des Forges (USA), André Guichaoua (France) and Filip Reyntjens (Belgium). Most valuable contributions to the text, in both form and substance, have been made by Jamie A. Williamson (UK).

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NEVER AGAIN? – RWANDA AND THE WORLD volcanoes and equatorial woods, and with national reserves, being the habitat of the last mountain gorillas. Kigali is its pleasing capital. Rwanda is thought to be the most densely populated state in Africa. Here, in an area about the size of Sicily, live around seven million people, who, today, are among the poorest in the world. Illiteracy is widely spread, perhaps to half the inhabitants. The language is Kinyarwanda; with French and, more recently, English, also being official languages. Contrary to other states in the region, Rwanda was not a colonial creation; for centuries prior to colonialism, more or less within its present boundaries, it has existed as a state of its own. According to myths, which seem to be still very much alive, the original population were the then hunting and gathering Twa. Later on, farming Hutu immigrated from the west or the south. They were in turn followed, much later, by cattle-keeping Tutsi from the north or northeast, from ‘Abyssinia’ (Ethiopia). The Hutu and the Tutsi have their counterparts in Burundi. Modern historians usually interpret the expression Tutsi just to mean the elite, in other words those who possess power, property, and education. Fortune in Rwanda was measured in numbers of cows. Over time, Tutsi came to stand for ‘rich in cattle’, Hutu for ‘subordinate’.4 However, amongst the Hutu, there was also an elite class. Like in many other parts of the world outside Europe, farmers traditionally were given a lower social status than cattle-keepers, whose freedom from boundaries was admired. Conflicts between the two groups have often occurred. One may think of the old narrative of the relationship between the disfavoured peasant Cain and his younger brother, the favoured shepherd Abel. Hutu and Tutsi have the same language and culture, the same religions, the same legal system. For centuries, they lived together without any formal distinction and many Rwandans, not least southerners, have a ‘mixed’ background. The two groups are not considered to constitute tribes, but are sometimes compared to castes including clans and extended families. The Twa, a separate people, with their own distinctive form of Kinyarwanda, have been more isolated and at times discriminated against by the Hutu and Tutsi. Today, the difference between the three groups has been officially abolished. In the recent presidential elections, in August 2003, the politicians of the government called for Rwandans to ‘vote as Rwandans’, and not on ‘ethnic’ lines. Some opposition supporters were even arrested for ‘divisionism’. A Short Overview of Recent Rwandese History As early as the nineteenth century, Rwanda was operated as a kingdom. Generally, the Tutsi, as power-holders, acted as rulers and the Hutu as servants. The Tutsi King and his authorities enjoyed general confidence and respect, also amongst the Hutu, who, as time went on, often enlisted in the army. 4

Des Forges, supra note 1, pp. 32–33.

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LENNART ASPEGREN The royal administration was built on a strong, complex and sophisticated organization, including parallel branches. The King would often issue orders, which deliberately included the possibility of multiple interpretations. By being entrusted through the administrative hierarchy with the privilege of interpreting these orders, the public servants gained substantial power. In 1897, the country was colonized by Germany. After World War I, Rwanda was governed for 45 years by Belgium, under the formal mandate first of the League of Nations, and then of the United Nations. On the basis of racial theories fairly prevalent in Europe in the 1920s and 1930s, the Belgians came to regard the Tutsi, whom they perceived as looking more ‘European’, to be generally superior to the Hutu. According to historians, this conception was easily accepted by the Tutsi. For many years, the Belgians left the Tutsi as elite and upper class. In addition, the Tutsi were supported by the influential Roman Catholic Church. In the thirties, the Belgian government crystallized their ideas by introducing compulsory ID-cards on which the holder’s ‘ethnicity’ (ethnie), that is Hutu, Tutsi or Twa, was to be indicated. ‘Ethnicity’ was deemed to be patrilineal, that is, an individual would automatically assume his or her father’s ‘ethnicity’. As a result of these new ID-cards, the whole population was strictly divided into three separate groups. About 85 per cent were classed as Hutu, almost 15 per cent as Tutsi, and a very small percentage as Twa. After World War II, the Tutsi regime sought to loosen the grip of the Belgians and the Catholic Church. At the same time, in line with a development towards democracy, under pressure from the United Nations Trusteeship Council, both the Belgians and the Church shifted their support away from the Tutsi regime to the Hutu majority. In the 1950s, political parties were established, though these were to be very much along ‘ethnic’ lines, namely Hutu and Tutsi. Despite there being a broad opinion within both groups in favour of a peaceful and democratic way of life, the relations between the Hutu and the Tutsi deteriorated. The general situation worsened; confrontations were spreading. In 1959, there were open and violent encounters. By now, the Belgians clearly favoured the Hutu and, after bloody fighting, a Hutu-dominated regime took power. The King fled. On 28 January 1961, Rwanda became a republic and, on 1 July 1962, with the consent of Belgium and the UN, it was declared independent. During the 1960s, due to persecutions, thousands of Tutsi fled to neighbouring countries. From their bases in Uganda, they began to attack their native country. Initially, the Hutu regime successfully repelled these attacks by the Inyenzi (cockroaches), as the Tutsi rebels were described. The rebels nevertheless periodically achieved some successes. Using the Tutsi attacks from Uganda as an excuse, the Hutu regime increased the pressure on the civilian Tutsi population inside Rwanda. In 1963, massacres of Tutsi took place, characterized by Lord Bertrand Russell as the worst since the 172

NEVER AGAIN? – RWANDA AND THE WORLD Holocaust. Again, in 1967, there were massacres. Probably some 20,000 Tutsi were killed. Hundreds of thousands of them were forced to flee abroad. By the same year, there was a break in both the incursion and the attacks on civilian Tutsi. However, the regime began to be destabilized, and, after a military coup in 1973, the army’s highest ranking officer, Major-General Juvénal Habyarimana, took power and was appointed President. He was supported both by the army and by the Church. His closest circle consisted of a clique called the President’s akazu (household or little house). Since it was led by his mighty wife, ‘Madame’, it was also known as ‘le clan de Madame’. Little by little, Habyarimana established himself as a dictator. During the 1970s and 1980s, Rwanda received substantial aid from abroad, not least from France. Although this benefited certain parts of the economy, as the population grew, the farming class became poorer than before. Then, towards the end of the 1980s, the coffee and tea exports, crucial to Rwanda, were severely hit by falling world market prices. The national economy was again sent rocking, and the position of the new military regime was weakened. By the late 1980s, the Rwandese community abroad had swelled to at least some 600,000 people, and more were to come. In 1988, in Uganda, Tutsi refugees formed the Rwandese Patriotic Front (RPF). In 1989 and 1990, the government in Kigali met with the Ugandan authorities to try and organize repatriation of the refugees. The RPF, however, was preparing for a return on its own terms. Prelude During the early 1990s, the situation in Rwanda became increasingly violent. In October 1991, the RPF rebels invaded the country, but the Rwandese Armed Forces (Forces armées rwandaises, FAR), with French support, managed to drive them back towards the Ugandan border. The Rwandese government continued importing weapons, including some from Egypt. Detailed and sophisticated plans for a coming genocide were obviously being worked out by extremists. During the following period, Habyarimana and other Hutu leaders became more and more ruthless in their repression of the Tutsi minority in the country. Hutu opponents also began to be persecuted. Habyarimana and his officials adopted right-wing extremist propaganda methods, partially copied from those once used by the Nazis in Germany, including ‘accusations in a mirror’, e.g. to portray Hutu as innocent victims of injustice and undue interference. So as to create fear and instigate bloody ‘revenge’, the Tutsi, now all called ‘Inyenzi’ (cockroaches), and whole Tutsi villages, were falsely and publicly accused of having carried out countless evil deeds, such as assaults upon their Hutu neighbours. Well-known historical events were distorted and exploited. Euphemistic ‘new language’ was regularly in use. In order to incite the listeners to kill, coded catchwords were introduced, such as: ‘Let’s intensify the combating of insects’, or ‘All must go out and work’. ‘To work’ meant ‘to kill Tutsi’. Sexual aggression was encouraged by exhortations to ‘try how a Tutsi woman tastes’. The 173

LENNART ASPEGREN public was also supposed to ‘eat their cows’- that is, to destroy the traditional property of the Tutsi by slaughtering their cattle. This propaganda was spread by the administration and also at organized mass meetings, which included lively spectacles with war songs, speaking choirs, musicians and plays. Then, the only efficient mass media, the radio, in particular the Radio-Télévision Libre des Mille Collines (RTLM), became the favoured means of spreading propaganda, constantly preaching hatred in different manners. The broadcasts reached a large majority of the population, who were able to listen on their small transistors, which had been widely distributed in the villages. In this way the Hutu extremists wanted to enforce what they themselves called ‘the final solution of the Tutsi problem’, in other words to annihilate the Tutsi, and also attack the so-called Ibyitso (accomplices), meaning the ‘moderate’ (prodemocratic) Hutu. Through their propaganda, the extremists succeeded in brainwashing the mind and personality of large layers of the Rwandese population, thus preparing them to take part in massacres and sexual violence. Many boys in their teens were pressed to become militiamen within the youth wings of Hutu Power (racist) parties, particularly a militia called ‘Intera-hamwe’, or ‘Those who work together’, the transformed youth branch of Habyarimana’s political party, the Mouvement révolutionnaire national pour le développement (MRND). Given plenty of weapons and drugs, these youngsters would eventually play an important role alongside the FAR and the Presidential Guard in the organized mass killings. In February 1993, the regime, with French support, managed to beat off an RPF offensive. More repression followed. In March 1993, an International Commission of Inquiry into Human Rights Abuse in Rwanda, established by four NGOs, published a report saying that, from October 1990 through January 1993, a total of 2,000 Tutsi had been killed and many more arrested or tortured.5 The NGO Commission concluded that ‘Habyarimana and his immediate entourage bear heavy responsibility for these massacres and other abuses against the Tutsi and members of the political opposition’. In a press release, one of the members of the Commission, a Canadian lawyer, William Schabas, used the word ‘genocide’ to characterize what had happened.6 Meanwhile, the position of the Hutu regime continued to weaken. Besides setbacks in the ongoing civil war against the RPF, economic and other serious problems were growing. At the same time, a disasterous HIV/AIDS epidemic had its part in shaking the foundations of the country and its people. The country’s infrastructure was deteriorating, national output lessening, and public finances gave way. In the middle of 1993, the government and its administration were effectively bankrupt. At this stage, France began actively to strengthen her support, which included contributions such as military training and generous Crédit Lyonnais loans for the 5 6

Ibid., p. 93. Melvern, supra note 1, p. 56.

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NEVER AGAIN? – RWANDA AND THE WORLD purchase of arms. Under the cohabitation in Paris, both Socialist President François Mitterand and the Conservative government obviously deemed it wise to help and defend the ‘Francophone’ population in Rwanda against the attacks by the now largely ‘Anglo-Saxon-influenced’ (English-speaking) Tutsi rebels in Uganda. The Arusha Peace Accords, August 1993 There were also initiatives to bring peace and security to Rwanda. After lengthy negotiations, the United Nations – together with the World Bank, the Organization for African Unity and some donor countries – secured the signing, on 4 August 1993, of a peace agreement between the Government of Rwanda and the RPF. The signers met at the small town of Arusha in northern Tanzania, near Mount Kilimanjaro, two hours flight from Kigali.7 A transitional government, including both Tutsi and ‘moderate’ (prodemocratic) Hutu members, was to be formed. The Development in Autumn 1993 Unfortunately, the Arusha Agreement was ultimately to have little effect. That was clearly shown during the months to follow. The coming military intervention in Rwanda was to be decided while the attention of the United Nations – and of the United States – was concentrated on another part of sub-Saharan Africa, namely Somalia. Now, barely a week after the Arusha Accords, the United Nations published a report in which the Special Rapporteur of the UN Commission on Human Rights ominously stated that “massacres and a plethora of other serious human rights violations” constituted a serious risk of genocide of the Tutsi population. Although this report recommended a series of steps to be taken by the UN to prevent further abuses, little or no action was taken. The UN system seemed at this stage to be unable to adequately respond to the problem of protecting human rights in Rwanda. Notwithstanding, in August 1993, Secretary-General Boutros Boutros-Ghali (Egypt) dispatched a reconnaissance mission, led by Brigadier-General Roméo Dallaire (Canada), to study the possibilities of organizing a peacekeeping operation. It has been suggested in a number of circles that the UN was facing a financial crisis with strong demands for UN peacekeepers to be sent also to Somalia and to Bosnia, and that, consequently, at least two or three months would be needed for realizing such an operation in Rwanda. On 24 September 1993, on the basis of the mission’s report, Boutros-Ghali proposed to the Security Council that a peacekeeping operation with a military capacity of 2,548 people be established for Rwanda (S/26488). In Somalia, on 3 October 1993, eighteen American elite soldiers (rangers) were killed on mission during an international intervention. Many more US soldiers were wounded or captured and publicly humiliated. 7

Eventually to become the seat of the ICTR.

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LENNART ASPEGREN This was just two days before the Security Council (resolution 872), on 5 October, would accept the Secretary-General’s proposal, establishing a peacekeeping force, called the UN Assistance Mission to Rwanda (UNAMIR). Dallaire was made Force Commander. However, the new force was given a much more limited mandate than originally suggested. For instance, it was not mandated to confiscate weaponry. In addition, a written request by Dallaire to be allowed to use force in order to halt criminal acts, including ‘executions, attacks on displaced persons or refugees’, received no formal answer from UN Headquarters. On 22 October, Dallaire came back to Kigali, a few days thereafter joined by an advance UNAMIR party of 21 military personnel. The Secretary-General subsequently appointed a friend, the diplomat and politician Jacques-Roger Booh Booh (Cameroon) as his Special Representative (SGSR) for Rwanda. From November through to December 1993 there was little positive development in Rwanda. In vain, Booh Booh sought to restart the political peace process, which, by then, had practically come to a standstill. Instead, military activity in the country increased, firstly, with the case of the continued civil war between the governmental army (FAR) and the rebellion (RPF), and, secondly, with the ongoing and simultaneous repression by the regime against civilians, accomplished not least by the ‘Interahamwe’ and other merciless youth militia. In fact, the racist ‘Hutu Power’ leaders had transformed these militias into machines to exterminate all Tutsi, not only the RPF. The cries for Hutu Power (‘Pawa’) became more intense. The UN Secretary-General received information that President Habyarimana was planning to kill members of the political opposition. When, on a brief visit to Kigali in December, a senior UN representative orally confronted him with this allegation, Habyarimana denied it. Gradually, more UN troops arrived. January 1994 On 1 January 1994, Rwanda became a Member of the Security Council. That was to add to the Council’s problems. In addition, during the month of January 1994, a wide gap between the events in Rwanda and the reactions in New York developed. A key event, which would subsequently attract considerable interest, concerned a telegram, sent on 11 January 1994 from Dallaire to the UN Headquarters in New York. It transpires that a repentant informant, who was a top level ‘Interahamwe’ trainer, said to be trustworthy, confided to Dallaire that there were plans and a major weapons cache ready for a general attack against civilian Tutsi in Kigali. Dallaire immediately included this information in his telegram to the UNHQ and requested to be granted the necessary mandate to confiscate the weapons without delay. In addition, Dallaire asked for UNAMIR reinforcements. Finally, he indicated that the information revealed plans to kill Belgian UN soldiers in Kigali in order to push Belgium to withdraw her UN contingent. 176

NEVER AGAIN? – RWANDA AND THE WORLD This cable has become the focus of much international discussion, particularly following Dallaire’s appearance in February 1998 as a witness in a trial before the Rwanda Tribunal at Arusha.8 In front of the media, Dallaire described in great detail the circumstances surrounding the telegram, dwelling particularly upon the cable’s often quoted last words: ‘Peut ce que veux. Allons-y’ (the motto of Dallaire’s former brigade, archaic French for ‘[w]here there’s a will, there’s a way. Let’s go’). When Kofi A. Annan (Ghana), the then head of the UN Department of Peacekeeping Operations (DPKO), received the cable, he immediately turned to Booh Booh for advice. According to Booh Booh’s quick answer, the information in question appeared to be absolutely reliable. Booh Booh added that the informant seemed to have only 24 or 36 hours at his disposal, before he had to distribute the weapons from the cache. On the same day, 11 January 1994, Dallaire and Booh Booh were informed that Headquarters could not agree to Dallaire’s request, as it went beyond the mandate for UNAMIR under Security Council resolution 872 (1993). Instead they were instructed to first inform the Belgian, French and American Ambassadors in Kigali and then request an urgent meeting with President Habyarimana. So they did. The 1993 Arusha Accords were failing, and the agreed transitional government, seen as vital to securing stability in Rwanda, had yet to materialize.9 February – March 1994 During the next two months, things in Rwanda were getting even worse. On 11 February 1994, Belgium’s Foreign Minister Willy Claes sounded the alarm in a letter to the Secretary-General, proposing that UNAMIR be given a stronger mandate. Although this letter of course should have deserved very serious attention within the Secretariat and among interested Member States, it appears to have been largely disregarded. That being said, it should be noted that the Security Council, in a presidential statement (S/PRST/1994/8), on handing the letter over to Habyarimana, expressed deep concern about the deterioration of the security situation. Only a few days later, two members of the political opposition in Rwanda, one a Social Democrat, the other a right-wing extremist, were murdered. Towards the end of February, the security situation deteriorated even more. In vain, Dallaire continued pressing for a more active and extensive role for the UN force, referring to widespread fresh information on an impending catastrophe. His requests remained unanswered, despite being supported not only by reminders from Booh Booh about the ‘ethnic’ conflicts during recent years, but also by a warning, dated 23 February 1994, from the Special Representative of the High Commissioner for Refugees (UNHCR) of an imminent “blood-bath of unparalleled proportions”. 8

In Prosecutor v. Akayesu (case no. ICTR-96-4-T). M. Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (Cornell University Press, 2002) p. 76. (The jacket cover of this book is indicated to represent General Roméo Dallaire testifying before the ICTR, i.e. before Trial Chamber I, constituted of Judges Kama, Aspegren, Pillay.)

9

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LENNART ASPEGREN Meanwhile, attacks against Tutsi and ‘moderate Hutu’ were intensifying. Radio propaganda baited its listeners more and more brutally. Weaponry was distributed throughout the country.10 Boutros-Ghali and Habyarimana spoke to each other now and then on the telephone, but without any noticeable positive result. The double crisis continued: repression of civilians simultaneously with the armed conflict. By the end of March, the UN force amounted to some 2,500 military personnel from 24 countries. The numerically most important contingents came from Bangladesh, Ghana and Belgium; the Belgian battalion was believed to be the strongest, although obviously far from problem-free. April 1994 The month of April 1994 could with good reason be called ‘Black April’. It began somewhat encouraging though. President Habyarimana attended an East African meeting in Dar es Salaam, after which he was supposed to eventually finalize the transitional coalition government. On 5 April 1994, the Security Council (resolution 909) unanimously decided to extend UNAMIR’s mandate by almost four months. However, by the next day, Rwanda was to descend into chaos with the total outbreak of the genocide. On return from Tanzania, on 6 April, around 20:30 hours, Habyarimana and his counterpart from Burundi were murdered. Unknown perpetrators, by anti-aircraft weaponry shot down their plane, a modern French Mystère Falcon-50, as it arrived in Kigali. Wreckage fell into the grounds of the Presidential Palace. All on board, including the French crew, were killed. The news about the plane crash was spread quickly. Radio Mille Collines, the ‘hate radio’, through continuous and intense broadcastings, immediately sought to place responsibility for the crash on the RPF Tutsi rebels and the Belgian UN soldiers, and appealed for killings “to avenge the death of our President”.11 Within less than an hour, the Presidential Guard began setting up roadblocks in the city12 – a notorious way of starting a coup d’état. Dallaire informed New York and placed UNAMIR on red alert. During this initial phase of the coming genocide, it is clear that a certain Colonel Théoneste Bagosora, Directeur de Cabinet at the Ministry of Defense and a member of the akazu, played an important, maybe even decisive role.13 He is 10 Human Rights Watch Arms Project, ‘Arming Rwanda: The Arms Trade and Human Rights Abuses in the Rwandan War’ (A Human Rights Watch Short Report, vol. 6, no.1, January 1994), p. 27 (cf., Des Forges, supra note 1, p. 159). 11 G. Prunier, The Rwanda Crisis 1959–1994: History of a Genocide (Fountain Publishers, Kampala and Hurst, London, 1995), p. 224. 12 Ibid., p. 229. 13 After Bagosora had been arrested on 9 March 1996 in Yaoundé, Cameroon, by the authorities there, I, in my capacity of responsible ICTR Judge and at the request of the Prosecutor, on 17 May 1996 at Arusha, ordered the transfer of him to the Tribunal’s detention

178

NEVER AGAIN? – RWANDA AND THE WORLD believed to have taken over power from the new transitional government and then, during the night, to have ordered and overseen the Rwandese Army, the Presidential Guard and the Interahamwe, as they set about the task of identifying and massacring Tutsi and moderate Hutu. In the morning of 7 April, in Kigali, the legitimate, pro-democratic Prime Minister, ‘Madame Agathe’, escaping over a wall from her residence to seek refuge at a UN compound nearby, was shot and killed with her husband by Presidential Guards at the back of the compound. Ten well-armed Belgian UN commandos, who had been sent to protect her at her house, had found themselves surrounded by Rwandese soldiers. It was reported that, after having laid down their arms, the Belgian peacekeepers were taken to Camp Kigali, where they were brutally tortured to death.14 A well-known politician of the opposition, the Vice-President of the Liberal Party, who had been threatened for a long time on the Radio Mille Collines, was unfortunately abandoned by UNAMIR soldiers and the very same day murdered with his family. In addition, the Presidential Guard and the akazu’s Death Esquadron dogged and killed inter alia a judge and a range of civilian Rwandese politicians and civil servants, some of whom had sought refuge with the UN.15 In fact, by noon, all important moderate politicians were put out of action. In a cable of 8 April, Booh Booh and Dallaire asked UN Headquarters, whether the mandate of UNAMIR was indeed ‘still valid’. Instead of implementing the Arusha Accords, the peacekeepers were now faced with a “very well planned, organized, deliberate and conducted campaign of terror, initiated principally by the Presidential Guard”. The cable described ‘aggressive actions’ against opposition leaders, Tutsi and other civilians, and attacks directed at the UN force. In addition to the worsening security situation and the inability to counter the hate radio, some six months after the force’s inception UNAMIR’s logistics were still poor, with ongoing shortages of drinking water, food, fuel, medical supplies and radio facilities, and, above all, of arms and ammunition.

unit at Arusha and formally requested the Government of Cameroon to comply with the decision. The same day, ICTR Trial Chamber I (Judges Kama, Aspegren, Pillay) requested Belgium to defer to the Tribunal all investigations and criminal proceedings then being conducted against Bagosora. On 18 June 1996, at a unique ICTR session inside a State Prison in Yaoundé, I ordered the continued detention in remand of four suspects, amongst them Bagosora and Professor Ferdinand Nahimana, senior official of the RTLM and Minister, and requested the Cameroon to effect as soon as possible the Tribunal’s order of 17 May for the transfer (cf., ‘ICTR Reports of Orders, Decisions and Judgements 1995-97’, Bruylant, Brussels, 2000, pp. 82 et seq.). In 2003, Nahimana was sentenced to life imprisonment. Bagosora is still standing trial at Arusha. 14 Barnett, supra note 9, p. 98. 15 Carlsson Report, supra note 2, p. 18.

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LENNART ASPEGREN The same day, Bagosora set up a self-proclaimed so-called ‘interim government’, dominated by Hutu Power members and with the economist Jean Kambanda as Prime Minister.16 Outside the UN, some Western countries reacted quickly to the situation. Thus, as early as the morning of 9 April, France put in parachutists to evacuate her citizens from Rwanda (‘Opération Amaryllis’). Simultaneously, corresponding measures were taken by Belgium (‘Operation Silver Back’), by Italy and by the United States. The resolute way in which these countries acted clearly highlighted the differences between them and the UN, when it came to assessing the situation. UN Headquarters were still trying to form an opinion as to what was happening. UNAMIR had not yet even finished organizing the basic communications within its units. Despite the worsening security situation, UNAMIR’s rules of engagement were maintained: use of force was to be used only in cases of self-defence. Dallaire was ordered to co-operate with France and the other countries in their efforts to evacuate their own citizens. After that, periodically, the Belgian contingent of the UN peacekeepers in some respects were to become the poor brothers of their countrymen in the national Belgian evacuation force. A nasty, but unfortunately typical, example of the powerlessness of the Belgian peacekeepers has been dealt with in great detail on several occasions before the UN Tribunal. Evidence presented to the Court,17 still very clear in my own memory, has shown that, from 7 to 11 April 1994, several thousands of Rwandese civilians, most of them Tutsi, had sought refuge at the Technical School, the École technique officielle (ETO), in Kigali, where a group of Belgian UN soldiers were stationed. Interahamwe, armed with rifles, grenades, machetes and cudgels, gathered outside the school. On 11 April, soldiers from the Belgian and French missions came to the ETO, charged solely with the task of saving countrymen and other Europeans present. This they did to the letter, apparently leaving behind Rwandese refugees, including spouses and children of those Europeans who were evacuated on board the military lorries. Afterwards, the UN soldiers also set off, as they were called to retreat to the Kigali Airport. With the departure of the UNAMIR troops, the waiting Interahamwe and Presidential Guards were free to surround the compound, to separate the Tutsi refugees from the rest, letting the Hutu leave, and then to attack the remaining Tutsi refugees. A large number of men, women and children were thus killed. As Dallaire noted: all over Kigali, the swift evacuation of the foreign nationals became a signal for the génocidaires to move toward the apocalypse. 16

After a guilty plea, the ICTR Trial Chamber I (Judges Kama, Aspegren, Pillay), on 4 September 1998, sentenced Jean Kambanda, for genocide, conspiracy to commit genocide, incitement to commit genocide, complicity in genocide, crime against humanity (murder),and crime against humanity (extermination), to life imprisonment (case no. ICTR-97-23-S). Kambanda’s appeal was dismissed by the ICTR Appeals Chamber on 19 October 2000, and he is now serving his sentence. Cf., note 66. 17 Cf., Judgement of 6 December 1999 in Prosecutor v. Rutaganda (case no. ICTR 96-3-T), particularly the testimony of the Belgian Captain Luc Lemaire.

180

NEVER AGAIN? – RWANDA AND THE WORLD During the following days, the massacres quickly spread from Kigali to many other préfectures. In no time, Rwanda was turned into hell on earth. Civilians were both the executioners and the executed. Massacres seemed to have peaked during mid-April. The ID cards and local records of the victims were systematically destroyed. As long as I live, I will remember the many testimonies before the Rwanda Tribunal by surviving mothers. One of them, hiding in a tree outside her house, had to silently watch, on the ground just beneath her, how three men one by one raped her six-year old daughter and then threw the injured child into a latrine to drown. In addition to the massacres and rapes, the civil war between the Hutu FAR troops and the Tutsi RPF rebellion raged on. The RPF gained more and more ground. At the UN Tribunal, we listened to witnesses describe human rights crimes, although on a more limited scale, being committed also by the rebels. On 12 April, three days after taking office, the illegal Kambanda ‘interim government’ moved from Kigali to Gitarama, 40 kilometres from the capital. Refugees in hundreds of thousands, including armed génocidaires, started to leave the country and go to Tanzania. By this stage, the Belgian government regarded the whole Arusha Peace Plan as dead. Although she had initially reacted to the situation by calling for UN reinforcements to Rwanda, Belgium now officially decided to withdraw her own UN military contingent and to vigorously support the ending of the UNAMIR. On 14 April, the Belgians began to withdraw. The same day, the French army force concluded its mission, after having flown over 1,300 persons out from Rwanda. Amongst these were also a few Hutu Power politicians, including ‘Madame’, the assassinated Rwandese President’s once very mighty widow, and some members of her family, as well as Nahimana and other alleged architects behind the genocide.18 On 19 April, the last Belgian UN peacekeepers exited Rwanda, leaving UNAMIR with no more than 1,500 soldiers and 190 observers. Throughout the most difficult periods, only delegates of the International Committee of the Red Cross (ICRC), including their head, Philippe Gaillard, manifestly a true hero, stayed in Kigali and other places.19 Even NGOs like the French Médecins sans frontières, after having courageously accomplished their assistance to victims, had to leave Kigali.20 On 21 April 1994, the UN Security Council (resolution 912) unanimously decided to reduce the international force in Rwanda into a contingent of only 270 persons, adjusting the mandate of this limited force primarily to negotiate a ceasefire. Then, towards the end of the same month, Boutros-Ghali changed his position, and, instead, on 29 April (S/1994/518), urged the Council to reverse its decision, pleading for a “forceful action . . . in order to restore law and order”. In addition, he 18

Melvern, supra note 1, pp.141, 182. ‘Madame’ took up her residence in Paris. Ibid., pp. 143 et seq. 20 Ibid., pp. 215–216. Cf., also for instance the testimony of Dr. Rony Zachariah (MSFBelgium) in Prosecutor v. Akayesu (case no. ICTR-96-4-T). 19

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LENNART ASPEGREN warned that “such action would require a commitment of human and material resources on a scale which Member States so far proved reluctant to contemplate”. This step by the Secretary-General, according to the Carlsson Report, meant that he began shifting emphasis “from viewing the role of the United Nations as that of a neutral mediator in a civil war to recognizing the need to bring to an end the massacres against civilians”.21 In other words, besides seeing just a limited internal conflict, he saw an explosive genocide. Notwithstanding, the Security Council was still unable to bring itself to use the term ‘genocide’ to describe the repression against the civilian Tutsi population in Rwanda. However, the following day, 30 April, in a presidential statement (S/PRST/1994/21) drafted by the British, the Council, as the Carlsson Report puts it, “circumvented the issue by including an almost direct quote from the Genocide Convention in the text”.22 By the end of April, the death toll of civilians in Rwanda reached 200,000. May 1994 The month of May 1994 meant a continued disaster for the Rwandese population. At the beginning and middle of May, the génocidaires intensified the massacres and directed their attacks against Tutsi women and children in the half of the country still under the interim government’s control. Children killed children. On 17 May, the Security Council (resolution 918), departing from its previous decision, increased the settled number of UNAMIR troops to 5,500. In addition, despite the opposition of the Rwandese delegate, the Council imposed an arms embargo on the country. Then, on 25 May, Boutros-Ghali, at a press conference in New York (SG/SM/5297/Rev.1), explicitly referred to the killings in Rwanda as a ‘genocide’. This was an important step, as it raised the possibility of the first ever implementation of the 1948 Genocide Convention. Despite the above, only about one-tenth of the required force envisaged in resolution 918 was in fact recruited. The majority of Member States, also most Western countries, including Sweden, refrained from sending any troops or equipment. Others were said to raise unrealistic conditions for their co-operation, including guarantees that the UN or other States would provide them with modern equipment, which they might then bring home mission fulfilled. Some countries sent military personnel without adequate training and without the most elementary equipment or basics. The problems faced by the UN in putting together more than a rudimentary effective force in Rwanda reflected the fact that the general enthusiasm, which immediately after the Cold War was no doubt behind the ‘Blue Berets’ in the UN’s

21

Carlsson Report, supra note 2, p. 22. Ibid., p. 23. The 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide is in force as from 1951.

22

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NEVER AGAIN? – RWANDA AND THE WORLD then extensive peacekeeping actions, involving over 70,000 staff, had clearly started to fade already by the end of 1993. In particular the 1993-1994 Somalia experience overshadowed the UN’s action in Rwanda and very much contributed to slowing the preparations for intervention in Rwanda. Indeed, it was only in March 1994 that US soldiers had been withdrawn from Somalia, and the sight in the Western media of Americans being publicly lynched in Somalia was still profoundly shocking. It was not until 4 May 1994 that President Bill Clinton signed his Presidential Decision Directive no. 25, which set strict conditions on the US support for any future UN peacekeeping operation. American public opinion was definitely not in favour of ‘another Somalia’, particularly not in Africa.23 The position taken by the United States and other Member States worsened the problems for the UN Secretariat and the UNAMIR. It should not be forgotten that the UN’s general economic situation remained shaky.24 In addition, the Secretariat’s administrative resources seem to have been over-tasked. The RTLM exhorted its listeners also to kill Dallaire. By the end of May, the death toll of civilians in Rwanda reached 500,000. June 1994 During June 1994, both the genocide and the civil war continued. In the beginning of the month, the UN force, which still consisted of not more than in all 500 people, mainly from Ghana and Tunisia, was in a situation where it desperately needed much more personnel and equipment. On 8 June 1994, by resolution 925, the Security Council again extended the UNAMIR mandate and endorsed the immediate deployment of two additional battalions. On 12 June 1994, the Hutu interim government was driven out of Gitarama by the advancing RPF troops. Ten days later, on 22 June, a powerful French military mission, code-named ‘Opération Turquoise’, was deployed in Rwanda ‘for humanitarian purposes’. Further to a request by Boutros-Ghali, this mission had been provided with a UN Chapter VII mandate by the Security Council (resolution 929); however, it was not being placed under UN command and the French military did not wear the blue UN berets. Dallaire, in vain, protested against this intervention by France. On 28 June, in Geneva, the Special Rapporteur of the UN Commission on Human Rights, René Degni-Ségui, published a report (E/CN.4/1995/7), where he concluded that a well-planned and systematic genocide had been committed in Rwanda, and that those responsible should be brought to trial at an International Tribunal.

23 In Somalia, the “UN saved hundreds of thousands of lives, but all everyone cared to remember was the eighteen dead American in Mogadishu” (Barnett, supra note 9, p. 24). 24 As late as on 5 April 1994, the Security Council had repeated its instructions to the Secretary-General to effect economies.

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LENNART ASPEGREN July 1994 On 1 July 1994, the Security Council (resolution 935) created a Commission of Experts to evaluate the evidence of serious human rights violations, including possible acts of genocide, with the expectation that an International Tribunal would be established to deal with them. This month of July was to see, at last, the end of the acute violence in Rwanda. On 4 July, the RPF Tutsi rebels under Major-General Paul Kagamé took control of Kigali. The massacres of Tutsi and moderate Hutu civilians ended. As previously mentioned, during the 100 days of genocide, from April to July 1994, probably at least 800,000 and maybe up to one million people were killed. Due to the lack of records, the estimation is uncertain. Tens of thousands of bodies were thrown into latrines or mass graves. At International Criminal Tribunal for Rwanda (ICTR) trials, we were shown video recordings of many who, in order to be ‘sent home’, were tossed into rivers, with their bodies filling the waters flowing towards the north-east, that is towards ‘Abyssinia’. Many more were physically and mentally wounded, often for life. Amongst the numerous victims of rape, hundreds of thousands were infected with HIV/AIDS, in many cases no doubt intentionally. Those Tutsi women who were ‘fortunate’ enough to survive the sexual violence are now carrying the disease, sometimes with their ‘Hutu’ children, and are said to be in an isolated and desperate situation in Rwanda. When they die, the children are often left alone.25 It has been estimated that the hundreds of thousands of Hutu who actively took part in the massacres, despite their primitive modes of execution succeeded in killing at a rate faster than the Nazis in their industrialized Holocaust camps. Around mid-July 1994, the RPF had managed to take control over the rest of the country, except for the south-western Humanitarian Protection Zone, one-fifth of the territory, which was controlled by the French through ‘Opération Turquoise’. The Kambanda ‘interim government’ left Rwanda. On 19 July 1994, a ‘government of national unity’ was sworn in, and Kagamé became Vice-President.26 Between one and two million Hutu, in fear of revenge, fled to nabouring countries, mainly to Zaïre (today the Democratic Republic of the Congo, a.k.a. the Congo-Kinshasa). This exodus was unprecedented in modern times. Very soon, the refugee camps were infiltrated by Interahamwe and other forces that had taken part in the genocide.27 According to CNN and some other Western media, the situation in the refugee camps in north-eastern Zaïre was to be regarded more as a refugee tragedy than the aftermath of genocide. Of course, such an opinion must be seen in the light of the fact that the genocide had been given rather modest attention in the media and consequently not provoked 25

Current statistics unavailable. In August 2003, at the first ‘democratic’ presidential elections, Kagamé was elected President of Rwanda. 27 Carlsson Report, supra note 2, p. 29. 26

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NEVER AGAIN? – RWANDA AND THE WORLD adequate interest abroad. In fact, very few journalists seem to have been present in Rwanda during the 1994 events. Although those who were present, including the correspondent of the French daily ‘Libération’ and a couple of BBC and Reuters correspondents (some of whom have testified and shown their video recordings before the UN Tribunal), managed to publish and broadcast reports on the genocide, they failed to attract proper attention. What might be called the ‘CNN-effect’ contributed to the establishment of massive international relief for the refugees.28 Unfortunately, it has been reported that large quantities of this material assistance was seized by the militia, who effectively controlled the camps, and sold for arms, which were used for devastating raids into the north-western corner of Rwanda. Even many years later, from their position in the Congo-Kinshasa, the remnant of the Hutu militia were reported to be acting as an armed force in the region, committing murder and rape among Tutsi in north-western Rwanda and also in Congolese Southern Kivu. Particularly against this background, it is not surprising that the lack of quick, efficient and effective international relief to the surviving victims in Rwanda is said to still be a source of widespread bitterness there. The Rwanda Tribunal The Security Council’s answer to the suggestion to create an international court for establishing justice in Rwanda came within a few months. On 8 November 1994, acting under Chapter VII of the UN Charter, which relates to threats to international peace, the Council (resolution 955) established the International Criminal Tribunal for Rwanda (ICTR) as a subsidiary organ of the Council.29 The General Assembly (resolution 206) welcomed this decision. The ICTR was organized after the same model as the previous ad hoc UN Court, the International Criminal Tribunal for the Former Yugoslavia (ICTY), based in The Hague. Under its Statute, annexed to the Council’s resolution 955, the Rwanda Tribunal is mandated to prosecute and judge persons responsible for serious violations of international humanitarian law, committed during the year 1994 in Rwanda, or by Rwandans in neighbouring states (Article 1). The specific violations within the ICTR’s mandate are, firstly, genocide (Article 2), secondly, crimes against humanity (Article 3) and, thirdly, violations of Article 3 common to the three 1949 Geneva Conventions and of the 1977 Additional Protocol II to the Conventions (Article 4). Precise criteria for individual criminal responsibility are also set (Article 6).30 28

Melvern, supra note 1, pp.217–219. Cf., V. Morris and M. P. Scharf, The International Criminal Tribunal for Rwanda Vol. 1 (Transnational Publishers, New York, 1998) pp. 99–109. 30 The ICTR has jurisdiction only over crimes committed in an internal armed conflict. Unlike the ICTY Statute, the ICTR Statute does not include violations of the laws or customs of war (war crimes). 29

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LENNART ASPEGREN The Statute’s description of genocide (Article 2) coincides verbatim with the wording of Article III of the 1948 Genocide Convention. Genocide means killing or certain other acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Crimes against humanity (Article 3) are murder or certain other inhumane acts, when “committed as part of a widespread or [the French text has “et”] systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”. The ICTR does not have exclusive jurisdiction over crimes included in its mandate (Article 8). It has been envisaged that it would concentrate its efforts on bringing to court those most responsible, the architects behind the events, the ‘big fish’. National courts, including the ones in Rwanda, are therefore encouraged to exercise jurisdiction over the overwhelming majority of cases. The Tribunal, according to the Statute as amended, is constituted of the Chambers, the Prosecutor and a Registry (Article 10). The Chambers comprise three Trial Chambers and an Appeals Chamber, each of them made up of Judges, elected by the General Assembly from a list established by the Security Council (Articles 11, 12, 12 bis, 12 ter). Three Judges, permanent or ad litem, sit in each of the Trial Chambers. The Appeals Chamber, which is common to the Rwanda and the Yugoslavia Tribunals, is made up of seven permanent Judges (Articles 11, 13). In May 1995, the first permanent Judges, including myself, were elected. On our first plenary meeting, in The Hague, at my suggestion, Judge Laïty Kama (Senegal) was unanimously elected President of the ICTR (Article 13).31 In accordance with the Statute (Article 14), the ICTR Judges have adopted, and have revised on several occasions, the Rules of Procedure and Evidence, which in line with international standards of fair trial govern the different phases of the proceedings.32 The working languages of the Tribunal are English and French (Article 31). The Tribunal’s headquarters is located at Arusha, its Appeals Chamber in The Hague. Yet the Office of the Prosecutor is stationed in Kigali, in part of UNAMIR’s former premises, closer to the actual scene of the 1994 events. To a large extent, the States have followed the Security Council’s call to all of them to co-operate fully with the Tribunal and its organs. Unfortunately, during the first years, despite quite substantial budgets, the ICTR’s administrative organ, the Registry, suffered from conspicuous mismanagement, repeatedly criticized not only by the official UN auditors at the Office of Internal Oversight Services (OIOS) and 31

Initially, Judge Kama (deceased in 2001), myself (Sweden) and Judge Navanethem Pillay (South Africa) constituted Trial Chamber I. After Judge Kama, Judge Pillay was elected President; she later on became a Judge of the International Criminal Court (ICC) in The Hague. As from 2003, the President of the ICTR is Judge Erik Møse (Norway). There are nearly 900 staff members, representing more than 80 countries. 32 These Rules, in all essentials similar to the corresponding Rules of the Yugoslavia Tribunal, have been strongly influenced by Anglo-American (common law) tradition; however, thanks to amendments over the years, in my view positive influence also by the Continental (civil law) tradition has become more evident, not least in the practical implementation, which has helped speed up the proceedings.

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NEVER AGAIN? – RWANDA AND THE WORLD by Member States, but also by well-reputed media and external bodies.33 This problem of course affected the work of the Tribunal’s judicial organs, i.e. the Chambers and the Prosecutor, and the first trial could begin only in January 1997. Again, the UN Secretariat seemed not to take its duties towards Rwanda seriously enough. However, as from 1997, after Boutros Boutros-Ghali was succeeded by Kofi Annan as Secretary-General, the Secretariat started to take measures to make the Registry more efficient, and eventually, as from 2001, managed to improve the situation. The Carlsson Inquiry 1999 Let us now have a somewhat closer look at the mentioned Carlsson Report, as I interpret it. This report highlights and clarifies many of the issues relevant to the Rwandan genocide. It not only consolidates the accounts of the actions and failings of the Security Council and other UN organs during the period from October 1993 to July 1994, but it also formulates constructive recommendations to ensure similar events are not repeated. In May 1999, Secretary-General Kofi Annan, with the full express support of the Members of the Security Council (S/1999/340), established a Commission, which was to conduct an independent inquiry into the actions taken by the UN at the time of the Rwanda genocide. The Commission was given the mandate of establishing the facts related to the response of the UN to the genocide, covering the period of October 1993 to July 1994, and to make recommendations to the Secretary-General on this subject. Ingvar Carlsson (former Prime Minister of Sweden), Chairman, Professor Han Sung-Joo (former Foreign Minister of South Korea), and rtd. Lieutenant-General Rufus M. Kupolati (Nigeria) were given the responsibility of heading the Commission. After just six months of what Annan then characterized as tireless and efficient work, the Commission, on 15 December 1999, forwarded a unanimous report. On 14 April 2000, Carlsson presented it to the Security Council, where it became the object of a lively discussion.34 The Council noted that the Secretary-General had fully accepted the Inquiry’s conclusions and had urged Member States to engage in reflection and analysis, aimed at improving the capacity of the UN to respond to various forms of conflict. The report was very well received throughout, including by the Council Members. According to the UN press release, the American delegate Richard Holbrooke felt that

33

E.g. the International Crisis Group (Brussels) and the Lawyers’ Committee for Human Rights (New York). See also Des Forges, supra note 1, p. 741. 34 United Nations Security Council Press Release (SC/6843, New York), 4127th meeting.

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LENNART ASPEGREN “the report made clear that in Rwanda – as in Bosnia and Somalia – “we failed”. The collective failures of governments in those three catastrophes nearly brought the United Nations system down . . . The United States accepted its own shortcomings in that depressing period . . . The atrocities carried out in Rwanda were done by a small group of murderers intent on using hate to preserve their hold on power. Those were political acts and those that perpetrated them should be held responsible. “And, by not acting against such violence when there were clear indications that it would take place, so should we.” The report pulled no punches, spared no responsibilities, and left no stone unturned. It was both a historical record and a blueprint for the future. That future must now be the highest priority. The prevention of another round of genocidal violence in central Africa was one of the core elements of United States policy in the Great Lakes, and was one of the United Nations’ greatest challenges.”

Other delegates were quoted as saying that the report should be a turning point and would serve as a benchmark in dealing with future crises. Undoubtedly, the Carlsson Inquiry clearly shows us that the UN both before and during the genocide fell short in a number of areas. The failure of the UN to prevent the genocide appears as a failure for the UN system as a whole. According to the report, the responsibility rests not only with Boutros-Ghali, the Secretariat and the Security Council, but also with the Member States: “[t]here was a persistent lack of political will by Member States to act, or to act with enough assertiveness”.35 Many deep wounds remain to be healed after the 1994 genocide, “one of the most abhorrent events of the twentieth century”, as the report puts it.36 Establishing the truth is said to be necessary for Rwanda, for the UN, and also for all those, wherever they may live, who are at risk of becoming victims of genocide in the future. Incorrect Starting-point of the United Nations The Carlsson Report points to an institutional weakness in the analytical capacity of the UN Headquarters.37 The Inquiry stipulates that the responsibility for this shortcoming falls primarily on the Secretariat under the leadership of Boutros-Ghali. Also, the UN’s early warning and conflict risk analysis capacity was not good enough.38 That was partially a result of weak institutionalized co-operation with outside actors such as academics and non-governmental organizations, as well as between the different departments within the Secretariat. This contributed to the coming failure in UN’s response before and during the genocide in Rwanda.39 The UN military intervention in Rwanda might have been initiated as a traditional peacekeeping operation, aiming at monitoring the peace process under 35

Carlsson Report supra note 2, p. 3. Ibid., p. 30. 37 Ibid., p. 43. 38 Ibid., pp. 42, 53. 39 Ibid., p. 30. 36

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NEVER AGAIN? – RWANDA AND THE WORLD the Arusha Agreement. Yet, according to the report, important warning signals and the onslaught of the genocide should have led decision makers within the UN – from the Secretary-General and the Security Council to Secretariat officials and the leaders of UNAMIR – to realize that UNAMIR’s original mandate had become inadequate.40 It is apparent that even some Member States, outside the permanent members of the Security Council, were able, on the basis of information available, including from human rights organizations, to understand early on the genocidal perspective of the situation. In other words, the analysis of the peace process had proved erroneous and ought to have been corrected. Consequently, the UN’s role as a mediator should have been abandoned sooner and necessary actions taken to stop the genocide. The Inquiry thus finds it disturbing that meeting records show a continued emphasis by Boutros-Ghali and others on a military cease-fire between the Rwandese government and the RPF, with little emphasis on and outrage against the massacres of the civilian population.41 What was obviously needed was a more assertive response, combined with the means necessary to take such action.42 Shaky Preparedness The limited scope of UNAMIR’s initial mandate was according to the Carlsson Report, an underlying factor in the failure of the mission to prevent or stop the genocide.43 The planning process was based on an over-optimistic assessment of the chances for a successful peace process. No planning was made for other possibilities. The alarming report published as early as 1993 by the Special Rapporteur of the UN Commission on Human Rights, supporting earlier findings of a number of NGOs, explicitly pointed to the extremely serious human rights situation in Rwanda and discussed at some length the possibility of an ongoing or imminent genocide. However, this report was not really taken into account. Other reports from the field spoke about increasing massacres, militia actions, and the import and distribution of arms. In the political sphere, a growing extremism amongst the circles around President Habyarimana was noted. The incoming information from General Dallaire and others could be characterized as more and more pressing. Despite all these warning signs, little or nothing was done to produce a contingency plan in case the peace process faltered. There were no reserves in the form of alternative positions to fall back on in the worst of cases. The Carlsson Inquiry writes (in italics):

40

Ibid., p. 50. Ibid., p. 41. 42 Ibid., p. 51. 43 Ibid., p. 31. 41

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LENNART ASPEGREN “The responsibility for this oversight in planning of UNAMIR lies with the parts of the UN Secretariat concerned, in particular the Center for 44 Human Rights and DPKO.”

It continues: “The responsibility for the limitations of the original mandate given to UNAMIR lies firstly with the United Nations Secretariat, the SecretaryGeneral and responsible officials within the DPKO for the mistaken analysis which underpinned the recommendations to the Council, and for recommending that the mission be composed of fewer troops than the field mission had considered necessary. The Member States which exercised pressure upon the Secretariat to limit the proposed number of troops also bear part of the responsibility. Not least, the Security Council itself bears the responsibility for the hesitance to support new peacekeeping operations in the aftermath of Somalia . . .”45

However, the report adds further that one should not forget the responsibility of the great majority of UN Member States, which were not prepared to send any troops or materiel to Rwanda.46 Many sources had underlined that Rwanda was not of strategic interest to third countries and that the international community exercised double standards when faced with the risk of a catastrophe there, compared to action taken elsewhere. The overriding failure is summarized as not only a lack of resources but also a lack of will to take on the necessary commitment.47 A force numbering 2,500 should have been able to stop or at least limit the massacres of the kind which began in Rwanda after the plane crash which killed the Presidents of Rwanda and Burundi. Instead a terrible and humiliating situation developed. Despite the failures of UNAMIR, the Inquiry notes, it should be said that UN personnel also performed acts of courage in the face of the chaos, and did save the lives of many civilians, political leaders, and UN staff, sometimes at the risk of their own lives. In the opinion of the Inquiry (which I personally share), Dallaire, the contingents of Ghana and Tunisia and others deserve recognition for their efforts, under extremely difficult circumstances, to counteract some of the worst brutality humanity has seen.48

44

Ibid., p. 31. Ibid., p. 32. 46 Ibid., p. 44. 47 Ibid., p. 30. 48 Ibid., pp. 30–31. Of course, many others would merit to be mentioned, like the Swiss chief ICRC delegate Philippe Gaillard (supra notes 19 and 20), or the Senegalese Captain Diagne Mbaye (cf., Melvern, supra note 1, p. 204). 45

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NEVER AGAIN? – RWANDA AND THE WORLD Anxious and Unsteady Implementation of the UNAMIR Mandate Further serious difficulties, the Carlsson Report continues, arose with respect to the implementation of UNAMIR’s mandate.49 Illustrative examples are the serious mistakes made in dealing with Dallaire’s famous telegram of 11 January 1994. Despite the fact that Annan and his close collaborators realized that this cable contained very significant information, they abstained from briefing Boutros-Ghali about it. Likewise, the Security Council was not informed. It is incomprehensible to the Inquiry that more was not done to follow up on the information provided by the informant regarding the planned use of arms caches to exterminate a group of people. Of course, this kind of information requires an immediate and determined response. Moreover, the threat against the Belgian contingent should have been followed up on more thoroughly. Instead, the UN’s passivity sent the signal to Interahamwe and other extremists that UNAMIR was not going to take assertive action to deal with the situation. This, in my own view, represented a fatal carte blanche. Many of the problems are said to have their root in the poor quality of the flow of information between the field and the Headquarters, between UNAMIR in Kigali and the Secretariat in New York.50 Member States such as Belgium, France and the USA certainly had in-depth knowledge of the situation, but for some reason did not properly share this information with the Secretariat. As demonstrated for instance through the dealing with the Dallaire cable, the information received by the Secretariat was not always followed up and forwarded as it should have been. It seems therefore hardly surprising that several Members of the Security Council complained to the Inquiry that the quality of the information from the Secretariat had not been good enough. Boutros-Ghali was absent from New York during much of the key period of the genocide.51 This naturally diminished his possibilities in personally influencing Security Council decision-making. The report also notes problems within the leadership of the UN force, particularly with difficulties in the co-operation between Booh Booh, on one side, and Dallaire and the Chief Administrative Officer, Mr Per Hallqvist, on the other. Problems for the Military Intervention Obviously, the most serious consequence of the mentioned shortcomings was the inability of the UN from an early stage first to prevent the horror and then to stop the genocide and save civilians. In addition, UNAMIR’s limited mandate, that of the use of force only in cases of self-defence, effectively prevented it from saving many of those who had sought refuge with the UN. There were also a number of other weaknesses with the military 49

Carlsson Report, supra note 2, pp. 32–34. Ibid., pp. 46–48. 51 Ibid., p. 48. 50

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LENNART ASPEGREN intervention. According to the Carlsson Report, the Bangladeshi contingent disobeyed orders.52 Others even say the Bangladeshis seemed to have created more problems than they solved. The military forces sent by France and other Western countries to evacuate their own citizens overshadowed the UN force and caused practical problems for it. The Belgian peacekeepers in practice came under command of their national evacuation troops. The decision by the Belgian government, after the death of the ten Belgian peacekeepers, to withdraw its troops was rapidly followed by indications that Bangladesh would do the same.53 The whole UN mission was in fact brought to the brink of collapse. When New York received reports about such difficulties, the prevailing view was for the complete withdrawal of UNAMIR. The Carlsson Inquiry finds this campaign difficult to understand. It is true that Boutros-Ghali could have done more to argue the case for reinforcement in the Security Council.54 Yet, in the opinion of the Inquiry, the Council bears a responsibility for its lack of political will to do more to try and stop the killing. According to the report, UNAMIR is partly responsible for its own failure to protect the ten Belgian paratroopers and the Rwandese moderate and opposition politicians who were killed during the early days of the genocide. The role of the UN force in the protection of civilians during the genocide is characterized by the Inquiry as one of the most debated and painful issues of this period.55 There is evidence that in certain instances the trust placed in UNAMIR by civilians left them in a situation of greater risk, when the UN troops withdrew, than they would have otherwise been. The perception that the UN knowingly abandoned a group of civilians at the École technique severely damaged the trust civilians had in the UN. The manner in which the troops left, including attempts to convince the refugees that the troops were not in fact leaving, is called ‘disgraceful’ by the Inquiry.56 New Signals Came Late The parties to the 1948 Genocide Convention took upon themselves the responsibility to prevent and to punish the crime of genocide. The Carlsson Inquiry underlines that this is not a responsibility to be taken lightly.57 In addition, arguably the Members of the Security Council are said to have, morally if not explicitly under the Convention, a particular responsibility to react in cases of genocide. The international community, however, was unfortunately slow to recognize that the slaughtering of civilians openly taking place in Rwanda was nothing but genocide. That being said, one of the first within the UN to recognize that a 52

Ibid., p. 36. Ibid. 54 Ibid., p. 37. 55 Ibid., p. 45. 56 Ibid., p. 46. 57 Ibid., p. 38. 53

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NEVER AGAIN? – RWANDA AND THE WORLD genocide was underway was Secretary-General Boutros-Ghali himself, viz. in an American television interview on 4 May 1994, at a press conference on 25 May and then in his report to the Council on 31 May.58 His admission was obviously a result of new alarming reports from senior UN officials. The Secretary-General’s own report referred to a “frenzy of massacres” of 250,000 to 500,000 people, expressly stating there was “little doubt” they constituted genocide.59 This meant that UN Headquarters eventually took a crucial step in the direction of a well-founded appraisal of what was happening in Rwanda in addition to the civil war. The Secretary-General’s conclusions were logical. He finally observed: “The delay in reaction by the international community to the genocide in Rwanda has demonstrated graphically its extreme inadequacy to respond urgently with prompt and decisive action to humanitarian crises entwined with armed conflict. Having quickly reduced UNAMIR to a minimum presence on the ground, since its original mandate did not allow it to take action when the carnage started, the international community appears paralysed in reacting almost two months later even to the revised mandate established by the Security Council. We must all realize that, in this respect, we have failed in our response to the agony of Rwanda, and thus have acquiesced in the continued loss of human lives.”60

The Inquiry calls these strong words ‘bitter’. One could add they form an obvious mea culpa. Still, the Council in its resolution 925, as a compromise with China, changed the suggested plain term ‘genocide’ (used also in the American draft) to ‘acts of genocide’. The Inquiry is clear that the delay in identifying the events in Rwanda as genocide represents a failure by the Council.61 As the report states, the imperative for international action is not limited to cases of genocide. It also includes other gross violations of human rights. Consequently, UN and its Member States should have been prepared for preventive action. The will to act needs to be exist before a situation escalates to genocide, the Inquiry notes. Reconstruction, Justice, Responsibility It goes without saying that, even today, Rwanda’s problems are far from solved. The aftermath of the genocide is still very much a reality. As an example of remaining problems, the Inquiry points at Interahamwe’s continued existence in the Great Lakes region.62

58

Ibid., pp. 70, 72. Ibid., p. 26. 60 Ibid., p. 26. 61 Ibid., p. 38. 62 Ibid., p. 51. 59

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LENNART ASPEGREN The Carlsson Inquiry urges the international community to support efforts to rebuild Rwandan society after the genocide, paying particular attention to the need for reconstruction, reconciliation and respect for human rights, and bearing in mind the different needs of survivors, returning refugees and other groups affected by the genocide.63 One of the many ways to do so is of course to fulfil the international community’s duty in ensuring that ‘justice is done and seen to be done’ by bringing those mainly responsible to trial. Many of those who masterminded the genocide are certainly still at large. Yet it should also be noted that at least some of them today are serving severe sentences, after having been judged by the UN’s earlier described Arusha Tribunal.64 Despite the earlier mentioned initial, quite disturbing administrative shortcomings, this Tribunal is now able to report a series of crucial judicial achievements. To date, two dozens of the leading génocidaires, including the 1994 interim government’s Prime Minister Kambanda, have been convicted, a number of them to life imprisonment; and over 50 suspects are detained at Arusha. Amongst the indicted are Cabinet Ministers in the interim government, other senior civilian and military officials, prominent businessmen, church leaders, radio journalists, etc. As the Inquiry reminds us, the Tribunal through its judgements has determined that the mass killings of Tutsi indeed constituted genocide under international law.65 For the first time, persons have been found legally guilty of genocide, referred to by the Tribunal (Trial Chamber I) as the ‘crime of crimes’.66 The ICTR has thus been forging, together with its sister court, the Yugoslavia Tribunal, a substantial body of case law, which in the future can be of importance for cases both at these two Tribunals and at national courts or at the new, permanent International Criminal Court (ICC) in The Hague. In the ICTR’s judgements (on average covering fully 300 pages each) and over 500 separate decisions, various points of law of general interest have been treated, such as the vital but controversial subject of criminal responsibility of civilian superiors.67 For the time being, a range of important cases are up and running.68 The signal given by the ICTR to the people of Rwanda and to the world is clear: Impunity can be replaced by accountability. Those who commit acts like mass 63

Ibid., pp. 54, 58. The ICTR, also cf., supra note 3. 65 Carlsson Report, supra note 2, p. 5. 66 See e.g. Judgement of 2 September 1998 in Prosecutor v. Akayesu (case no. ICTR-96-4-T), and Judgement and Sentence of 4 September 1998 in Prosecutor v. Kambanda (case no. ICTR-97-23-S), the first law cases in history on genocide. 67 Cf., L. Aspegren, ‘Befälsansvar: Några anteckningar om “command responsibility” enligt internationall straffrätt’, 13:2 Juridisk tidskrift, Stockholm University, 2001–2002, pp. 456– 465, and 13:3, p. 694; A. Zahar, ‘Command Responsibility of Civilian Superiors for Genocide’, 14:3 Leiden Journal of International Law 2001, pp. 591–616; J. A. Williamson, ‘Command Responsibility in the Case Law of the ICTR’, 13:3 Criminal Law Forum 2003 pp. 365–384. 68 For current information, see <www.ictr.org>. 64

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NEVER AGAIN? – RWANDA AND THE WORLD murder or mass rape risk being punished under the 1948 Genocide Convention and the 1949 Geneva Conventions. Both ad hoc tribunals’ comprehensive archives are there to serve as historical records and contribute to the basis for further analysis of the factors and motivations behind genocide and crimes against humanity. Simultaneously, in Rwanda, several thousand persons have been convicted, some to death, for taking part in the genocide. One part of the Rwandan cases have been dealt with by quickly organized courts of ‘classical’ shape. However, as from 2002, about 11,000 ‘traditional’ courts, so-called gaçaça (on the grass) community courts, have been established with a huge number of lay judges chosen to serve. Under this pragmatic arrangement, suspects are supposed to answer in front of their neighbours, gathered at their village. Now, some 100,000 people are said to remain detained in prisons or camps in Rwanda, awaiting trial. In addition, the national jurisdictions of Belgium and of Switzerland have brought to trial, for their role in the 1994 events, a few Rwandese nationals (e.g. in Brussels a couple of Catholic nuns were tried and convicted). United Nations Reforms Needed The Carlsson Report puts forward a string of recommendations of reforms of the UN.69 Let me mention three of them (in my order). Firstly, it is indeed worth mentioning the recommendation of upgrading the UN’s general readiness to handle future crises. In particular, the Security Council and troop contributing countries must be better prepared to prevent acts of genocide or other gross violations of human rights, wherever they may take place. The political will to act should not be subject to different standards. The UN’s early warning capacity, the report continues, needs to be improved through better co-operation with outside actors, such as NGOs and academics. The same applies within the Secretariat, where an effective flow of information needs to be ensured, not least on human rights issues. Further improvements also should be realized in the flow of information to the Security Council. This would facilitate necessary efforts to improve the protection of civilians in conflict situations. What happened in Rwanda showed- as did such events as those in Srebenica in the former Yugoslavia- that the UN must be better prepared and equipped to respond to the expectance of protection created by its mere presence on the ground. The security of UN and associated personnel, including local staff, needs to be strengthened. During the 1994 genocide, Rwandese UN staff were left behind, when international civilian UN staff were evacuated.70 Secondly, the report stresses that national evacuation operations must be coordinated with UN missions on the ground. The Inquiry finds it unfortunate that the resources committed by France and other countries to ‘Opération Turquoise’ could

69 70

Supra note 2, pp. 53–59. Ibid., p. 46.

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LENNART ASPEGREN not instead have been put at the disposal of UNAMIR, given that the UN for over a month had been trying to find troops to expand its force.71 In addition to that, it proved problematic to have two operations present in the same conflict area with the authorization of the Security Council but with very diverging powers: UNAMIR remained a Chapter VI operation throughout, while ‘Turquoise’ was given a Chapter VII authorization. On some occasions, there was direct confrontation, or risk of such confrontation, between ‘Turquoise’ and the RPF Tutsi rebels. Thirdly, the Inquiry suggests further study be given to the possibility to suspend, in exceptional circumstances, such as the Rwanda crisis, participation of the representative of a Member State on the Security Council. It was a problem that Rwanda, as from 1994, through the Habyarimana regime and the so-called ‘interim government’, before and during the genocide was a member of the Council. Since the delegates of Rwanda had full access to the documentation and discussions of the Council, they had good opportunities to try and influence decision-making on behalf of those in power.72 Rwandese presence hampered not only the quality of the information that the Secretariat felt it could provide to the Council, but also the nature of the discussions within that body. Comments In 1998, US President Bill Clinton and, after him, UN Secretary-General Kofi Annan came to Kigali, expressly and publicly acknowledging that the international community in 1994 had failed the Rwandese. Recently, former Secretary of State Madeleine Albright acknowledged the central role of the US in preventing the Security Council from stopping the genocide, when she was US Ambassador to the United Nations. The Carlsson Inquiry also declares that the UN failed the people of Rwanda during the genocide in 1994.73 According to its report, it is a failure for which the UN as an organization, but also its Member States, should have apologized for more clearly, more frankly, and much earlier. The UN should thus acknowledge its part of the responsibility for not having done enough to prevent or stop the genocide in Rwanda. Of course, any report with the accomplished result at hand inevitably can be said to be marked by ‘wisdom post facto’. Another, more positive way to put it is to say that, based on facts, such a report can be seen as an opportunity to teach us useful lessons from experience. In my view, the latter is very much applicable to the Carlssson Report. It is an exceptionally speedy, well-reasoned and relevant opinion, in substance certainly shared by most people. Some of us, with practical experience from UN field work, might just feel tempted to add a few words on the general importance of making 71

Ibid., p. 49. Ibid., p. 50. 73 Ibid., p. 51. 72

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NEVER AGAIN? – RWANDA AND THE WORLD work more results oriented and of considering to a larger extent merits, competence and capacity when responsible personnel is recruited. Besides the authors of the report, Secretary-General Annan of course should be duly lauded for establishing the Carlsson Inquiry despite the risk of criticism also on his own handling of UN’s peacekeeping operations at the time. He has also fully accepted the Inquiry’s conclusions and said its recommendations merited very serious attention.74 Timely Response Moreover, other initiatives by Kofi Annan as Secretary-General have proved him to be ready to drive through the reforms needed. No doubt, these efforts merit continuous and active support by Member States. In an address to the General Assembly in 1999, Annan reflected upon “the prospects for human security and intervention” in the 21st century.75 He recalled the failures of the Security Council to act in Rwanda and Kosovo, and challenged the Member States to “find common ground in upholding the principles of the Charter, and acting in defence to our common humanity”. Again, in his Millenium Report to the Assembly in 2000, Annan inter alia asked the following question: “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”

A prompt answer to this challenge was given by the Government of Canada establishing the independent International Commission on Intervention and State Sovereignty (ICISS), announced by Prime Minister Jean Chrétien at the General Assembly in September 2000. This Commission is composed of twelve prominent persons from eleven different countries, chaired by Gareth Evans (Australia, President and Chief Executive of the International Crisis Group) and Mohamed Sahnoun (Algeria, Special Adviser to the UN Secretary-General).76 The Commission under the heading ‘The Intervention Dilemma’, begins its thorough report, by stating: “‘Humanitarian intervention’ has been controversial both when it happens, and when it has failed to happen. Rwanda in 1994 laid bare the full horror of inaction. The United Nations (UN) Secretariat and some permanent members of the Security Council knew that officials connected to the then government were planning genocide; UN forces were present, 74

UN Press Release, supra note 34, p. 3. Quotation from ‘The Responsibility to Protect’, Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre, Ottawa, December 2001), p. 2, para. 1.6. 76 Ibid., pp. 77–85. 75

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LENNART ASPEGREN though not in sufficient number at the outset; and credible strategies were available to prevent, or at least greatly mitigate, the slaughter which followed. But the Security Council refused to take the necessary action. That was a failure of international will – of civic courage – at the highest level. Its consequence was not merely a humanitarian catastrophe for Rwanda: the genocide destabilized the entire Great Lakes region and continues to do so. In the aftermath, many African peoples concluded that, for all the rhetoric about universality of human rights, some human lives end up mattering a great deal less to the international community than others.”77

Later on, when it comes to the need of early warning, the International Commission notes: “It is possible to exaggerate the extent to which lack of early warning is a serious problem in government and intergovernmental organization these days. More often than not what is lacking is not the basic data, but its analysis and translation into policy prescription, and the will to do something about it. Far too often – and the recent reports on the UN response to Rwanda in 1994 confirm this – lack of early warning is an excuse rather than an explanation, and the problem is not lack of warning but of timely response.”78

Here, I would like to quote another voice from Canada, namely Lieutenant-General Dallaire. In a recently published book of his, he writes: “The Security Council and the office of the secretary-general were obviously at a loss as to what to do. I continued to receive demands to supply them with more information before they would take any action . . . We had sent them a deluge of paper and received nothing in return: no supplies, no reinforcements, no decisions.”79

However, in an interview on 20 August 2003, General Dallaire adds: “The UN and the secretariat are small-time culpable compared to the U.S. 80 and France and their actions and inactions.”

77

Ibid., p. 1, para. 1.1. Ibid., p. 21, para. 3.10. 79 R. Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda (Random House Canada, Toronto, 2003; 562 pages), pp. 289, 290; cf., The Globe and Mail, Toronto, 21 August 2003, p. A6. 80 Ibid., p. A1. Cf. review by G. Caplan, The Globe and Mail, 1 November 2003, pp. D14– D15. 78

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NEVER AGAIN? – RWANDA AND THE WORLD United Nations Reforms under Way On 9 September 2003, Secretary-General Annan came back to the UN Millenium Declaration by presenting to the General Assembly his report (A/57/387) Strengthening of the United Nations: an agenda for further change. Concerning peacekeeping and peace-building operations, Annan notes that “the Security Council . . . has learned from its difficulties in the past decade how to craft wiser and more effective solutions”.81 Yet, one page further down, he states: “The perceived shortcomings in the Council’s credibility contribute to a slow but steady erosion of its authority, which in turn has grave implications for international peace and security. Thus, no reform of the United Nations would be complete without reform of the Security Council. At the same time, it is important to remember that authority derives from the capacity to take prompt and realistic decisions, and from 82 the will to act on them.”

Kofi Annan adds: “Comprehensive approaches to conflict prevention and resolution, and to building sustainable peace, require the involvement and support of other organs of the United Nations.”83

Consequently, in his report, Annan suggests other organizational reforms, including making the General Assembly stronger. In addition, he inter alia pleads for a better protection and promotion of human rights. On 2 November 2003, the Secretary-General (SG/A/857) established a 16member High-Level Panel on Threats, Challenges and Change, chaired by Thailand’s former Prime Minister Anand Panyarachun, and tasked with examining the major threats and challenges the world faces in the broad field of peace and security and making recommendations for the elements of a collective response. Room for Power of Action The Somalia débâcle might be seen in the light of its coincidence with coming elections in the United States. The misdirected ‘support’ given to the 1994 interim government in Rwanda by some Western states, France in particular, might also be placed in an internal political context. Notwithstanding, in my opinion there seems to be reason to say that the lack of will and commitment so well demonstrated in Rwanda in 1994 by the international community must be considered particularly disquieting, since it was so manifestly and extensively based on the perception of Rwanda being a small country of no strategic or economic importance to the rest of the world. It was obviously decided 81

SG Report (A/57/387), para.9. Ibid., para.20. 83 Ibid., para. 22. 82

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LENNART ASPEGREN to disregard the standard which at least on some occasions has been accepted by customary law as applicable to human rights crises elsewhere. When it concerns a poor and remote country without oil or similar precious resources, every future serious threat of genocide, crimes against humanity or war crimes must also be regarded as an opportunity for all UN Member States to show their power of action. Not by bombing the country in question, but by driving through adequate measures within the frame of the UN Charter in order to protect an exposed and vulnerable civilian population, even when those measures would temporarily circumscribe the sovereignty of another state. The kind of war and genocide we saw in Rwanda in 1994 is at risk of becoming typical for future internal conflicts in many parts of the world. As Secretary-General Annan pointed out, humanitarian intervention must be seen as a necessary means of responding to gross and systematic violations of human rights, if we are not to be placed in a situation where we are unable to avoid another Rwanda.84 Others have added that classic war-and-peace instruments miss the mark in conflicts like the one in Rwanda. Many Member States, including Sweden,85 now are endorsing a policy in favour of developing new ways to prevent menaces to peace and security. Such efforts are often worked out in close co-operation with research and are also often engaging NGOs, civil society and private sector. They would include, for instance, democracy and governance development, human rights education, conflict solution, public sector management, etc. As a last resort, an efficient military contingent, together with rescue staff, would be established, kitted and trained to be ready for future UN actions abroad, possibly co-ordinated with regional organizations such as the European Union (which recently adopted an EU Security Strategy). Yet, before taking part in any such humanitarian interventions, the responsible government will have to see to it that sufficient civilian and military resources are at hand, not only for the intervention itself, but also for other purposes during a possibly quite long period thereafter, when the local administration maybe would be in need of help. This is of course nothing but an implementation of the old principle ‘Readiness is all’. Sweden traditionally considers itself one of the most active countries in promoting human rights and connected issues. The fact that its foreign policy has no doubt succeeded in gaining general respect is obliging. The government certainly collected enough international goodwill to now have a steady platform to make it a duty to take further initiatives within both the UN and the EU, and also within the

84 For comments upon the current debate on humanitarian intervention and human security, see e.g. M. Jacobsson, ‘Vart är folkrätten på väg?’, Internationella studier (Institute of International Affairs, Stockholm, 2003, no. 3), pp. 20–31. 85 Cf. Ministry for Foreign Affairs, ‘Preventing Violent Conflict’ (Study 1999:24 and Publication 2000, art. no. 01.025, Stockholm); also the Government’s Letter to the Riksdag, ‘Mänskliga rättigheter i svensk utrikespolitik’ (Human Rights in Swedish Foreign Policy, Skr. 2003/04:20).

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NEVER AGAIN? – RWANDA AND THE WORLD OECD. This would certainly be a policy very much in the spirit of Dag Hammarskjöld, Olof Palme, and Anna Lindh. The mentioned Canadian initiative (ICISS) can be taken as a prominent sign of growing interest also in other countries. It goes without saying that despite the present negative attitude taken by the United States, the establishment of the ICC is a vital factor in the prevention work. The ICC can more generally apply the same principles as those behind the ICTY and the ICTR. At the 2004 Stockholm International Forum, Secretary-General Kofi Annan proposed the setting up of a UN Committee for the Prevention of Genocide, which would meet periodically and make recommendations. He further proposed the establishment of a Special Rapporteur on the Prevention of Genocide, who would be supported by the High Commissioner for Human Rights but would report directly to the Security Council, “making clear the link, which is often ignored until too late, between massive and systematic violations of human rights and threats to international peace and security”.86 These proposals are now being realized. In 2005, the United Nations celebrates its 60th anniversary. Before that, the earlier mentioned High Level Panel of 2003 might have presented its report. It has often been said that we all depend on the UN and that the UN is – and is bound to be – a dependent of its Member States. Again, the present situation of worrying developments in the Middle East, Africa and elsewhere illustrates that there really seems to be no valid and lasting security solution outside the UN and outside international law.

86 Stockholm International Forum 26-28 January 2004 (Proceedings), ‘Preventing Genocide: Threats and Responsibilities’ (Regeringskansliet, Stockholm, 2004; 311 pages), p. 19.

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THE CONTESTED NOTION OF FREEDOM OF OPINION Herdís Thorgeirsdóttir* Reason obeys itself; and Ignorance submits to whatever is dictated to it.1 – Thomas Paine

This article focuses on the role of journalism in the forming of public opinion in light of the European Convention on Human Rights,2 not least in comparison with other international human rights obligations and U.S. constitutional doctrine. Public opinion is inconceivable without the media’s input. Forming an opinion is an essential prerequisite for active participation in the democratic process. The rights and freedoms guaranteed under the Convention’s freedom of expression provision in Article 10 facilitate this process if realized to the full. However it remains unclear what the right to freedom of opinion entails as a part of the interrelated principles protected under Article 10.3 Does the right to freedom of opinion simply refer to something internal? Is opinion, until expressed, merely analogous to thought and if so why then bother to protect it separately? Opinion is a construction built on dialogue and exposure to information and ideas in all kinds of forms. Hence, it is logical to assume that the freedom of opinion entails the right to form an opinion otherwise it would not be protected other than as a thought, an internal process irrelevant to any supervision. Journalistic conduct is partly regulated with regard to this. The individual self-realization precedes active participation in democratic society. In today’s world the media is a decisive factor in this process. The objective of the Convention is not only majority rule with democracy but also that those participating are truly mature as moral actors.4 The public discourse ought to stimulate such citizenry. Democracy is implausible if made up of people living only by habit or tradition – “unaware that they mask an implicit choice”5 by not acknowledging their responsibility. This sums up the two dimensions that freedom of expression through free argument and debate is to secure. Democracy and human dignity are two sides of the same coin in the objective of the Council of Europe to *

Professor of constitutional law and human rights at the Faculty of Law, Bifrost School of Business in Iceland. 1 T. Paine, in T. Benn (ed.), The Rights of Man (J. M. Dent, 1993) p. 99. 2 Hereinafter the Convention. 3 Article 10 (1) reads: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” 4 F. Michelman, ‘Law’s Republic’ 97 Yale Law Journal (1988) p. 1504. Referring to Kant’s concept of moral autonomy. 5 Ibid. 203

HERDÍS THORGEIRSDÓTTIR achieve unity between its members for the purpose of safeguarding and realizing human rights and to create a decent, fair and just society. Guaranteeing the equal dignity of all individuals is a stated goal of the Council of Europe seen as fundamental for the process of economic and social progress.6 The legal equation explored in this context contains freedom of opinion, freedom within the media and human dignity. It is almost unthinkable to withdraw one of these concepts out of the equation without, at least in theory, fateful consequences, e.g. in the modern context of democratic society. Inherent in both the negative requirements made to the press in not overstepping the bounds restricting the rights of others, as well as in the positive requirements of enlightening the public, is the demand that journalism is not discriminating. Discrimination against people on the grounds prohibited under Article 14, (sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status), taken in conjunction with Article 10 is an attack on their dignity. The silencing effect of such journalism impedes the further realization of human rights. On the other hand there is much apprehension of restricting journalistic conduct for fear of the chilling effect that legal sanctions may have on journalists. The following analysis explores from the perspective of the Convention, to what extent freedom of opinion is protected. Media manipulation may dictate silence on crucial issues and maintain ignorance in the political sphere. Discriminatory coverage in the media may be viewed as an integral aspect of freedom of expression while in reality it may result in a cumulative harm in society where minorities continue to be oppressed. The relevant paradigm is the individual dignity often in the context of minorities, determined by a series of small cases that will together set a limit of what is tolerated rather than deciding once and for all on one issue. It is questionable to what extent legal responses to prejudicial attitudes are reconcilable with Article 10 and the objectives of the Convention.7 The case law of the European Court of Human Rights8 in Strasbourg is scrutinized partly in comparison with the U.S. Supreme Court First Amendment jurisprudence in determining restrictions on press freedom to protect the crucial paradigms of democracy, individual development and human dignity. The first part of this paper analyses whether freedom of opinion entails the right to form an opinion and what this right entails for an individual in society. For this reason the drafting stages of that right are looked into to try to formulate the scope of freedom of opinion in relation to the media.

6 Recommendation No. R (97) 21 of the Committee of Ministers to member states on The Media and the Promotion of a Culture of Tolerance (Adopted by the Committee of Ministers on 30 October 1997, at the 607th meeting of the Ministers’ deputies). 7 The concept minority is used here in relation to all groups apt to discrimination due to their ‘inferior’ position in the hierarchical order of society, including women, albeit not a numerical minority. 8 Hereinafter the Court.

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THE CONTESTED NOTION OF FREEDOM OF OPINION The second part tackles the impact of the media on opinion formation in society and assesses the permissible restrictions on journalism in cases of defamation, group defamation and hate speech. Finally the latent side of discrimination, the silencing effect of discriminatory journalism, is dealt with. 1. What is Being Protected? Article 10 (1) provides that the right to freedom of expression “shall include freedom to hold opinions”. It is a limited interpretation of this freedom to maintain that it is simply referring to the content of expression in a narrow sense as the subject matter of expression. The intention with the protection of this right was not superfluous. According to the Travaux Preparatoires, the guarantee of the internal freedoms of thought, conviction and opinion were not to be subject to a treatment intended to change the process of thinking or the opinion formation or to protect the individual against “ces abominable moyens d’enquête policière d’instruction judiciaire qui prive le suspect ou l’inculpé du controle de ses facultés intellectuelles et de sa conscience”.9 The freedom of opinion is perhaps in conjunction the most pivotal, consequential and vulnerable of the freedoms included in the right to freedom of expression. To a degree it may be asserted that the other rights included in Article 10 (1) are only a means of realizing freedom of opinion.10 Underlying this assumption is the argument that ‘freedom of opinion’ extends the right merely to entertain a thought or an internal feeling. It is reasoned here that it is not a coincidence that freedom of opinion is protected under Article 10 along with the other freedoms essential to the functioning of the press. The intention must have been to protect opinion, as an aspect of the objectives that press freedom is to achieve- an informed public opinion essential to democracy and the individual growth of every citizen. Freedom of thought is protected along with conscience and religion under Article 9 of the Convention. The International Covenant on Civil and Political Rights11 (1966) also protects thought, conscience and religion in Article 18 and opinion separately under Article 19 (1). The American Convention on Human Rights (1969) (ACHR) does not make this distinction between thought and opinion and omits the latter completely, protecting conscience and religion under Article 12 and freedom of thought and expression in Article 13. If, like mentioned during the drafting stages of the ICCPR, holding an opinion is a superfluous truism, why then bother to protect it, from whom or what?12 It is 9

Recueil des Travaux Preparatories, Vol. I. (The Hague, 1975) p. 223, quoted in P. van Dijk, and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, (Kluwer Law International, The Hague, 1998) p. 542. 10 G. Malinverni, ‘Freedom of Information in the European Convention on Human Rights and in the International Covenant on Civil and Political Rights’, 4:4 HRLJ (1985) p. 445. 11 Hereinafter ICCPR. 12 (Doc. A/2929), chapter 6 paras. 119–138 (Official Records of the General Assembly, Tenth Session, 1954).

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HERDÍS THORGEIRSDÓTTIR tempting to draw the conclusion from the drafting process that the original intention was to protect the formulation stage, but adding the verb to ‘hold’ in the final draft seems like irresolution. The fact that opinion is not protected separately in Article 10 of the Convention as in Article 19 of the ICCPR has provided those with rationale who want to reduce the right to opinion to something equivalent to freedom of thought. From what may be gathered from the case law, the process of thinking is also protected as the basis of conscience and general outlook on life. Thought and conscience are inviolable as they are not subject to any restrictions set forth in Article 9 (2) of the Convention, only the freedom to manifest one’s religion or belief.13 Freedom of opinion on the other hand is not exempted from Article 10 (2)14 of the Convention, which illustrates that the freedom of opinion is not unsusceptible to external forces with regard to protection as the forum internum. As a case in point, the French version of Article 19 of the ICCPR “Nul ne peut être inquiété pour ses opinions” is quite different in substance and style to the English version of Article 1915 as well as the wording in Article 10 of the Convention. In the preliminary draft Convention in February 1950, the right to hold an opinion was to be without interference as in Article 19 of the UDHR. The expert of the United Kingdom proposed amendments in March 1950, concerning these rights.16 ‘Thought’ replaced ‘opinion’ in the first paragraph of the then Article 11 (freedom of thought was already protected in the then preceding Article 10). The ‘interference’ clause was confined to the government. Amendments to the British proposal shortly after17 eliminated the repetition of thought and the then Article 11 (1) had almost reached the present wording of Article 10 (1). Again, two alternatives concerning opinion and interference were represented in Alternative A of a Preliminary Draft Convention18 sticking to the British proposal. Alternative B stated: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek and receive and impart information and ideas through any media regardless of frontiers”.19 The distinction between these two proposals indicates that at least some of the drafters seriously contemplated the different nature of the protection proposed. In the British proposal opinion is reduced to next to nothing or equated with thought 13

Kokkinakis v. Greece, 25. 5. 1993, Series A no. 260, para. 33. Article 10 (2) reads: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 15 Supra note 12, para. 121. 16 Then included in Article 6 of the Convention, cf., Collected edition of the Travaux Préparatories, Vol. III, (Kluwer Law International, The Hague, 1975 ) p. 280. 17 Ibid., p. 288. 18 Ibid., p. 318. 19 Ibid., p. 320. 14

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THE CONTESTED NOTION OF FREEDOM OF OPINION (already protected) and the insertion of ‘without governmental interference’ is repeated. That latter proposal, on the other hand, underlines the importance of opinion as an absolute right and does not confine interference with the government only but also as potentially stemming from elsewhere. The reasoning of the British delegates was that in the absence of a clear and precise definitions of the rights to be safeguarded, states might be in great doubt as to whether they were in a position to accede to the Convention; “how could a country feel sure that its laws were consistent with the obligations it would assume on accession if it did not know what the obligations involved”.20 The compromise that led to the final wording of Article 10 of the Convention was decided in light of political rather than legal considerations. According to the UN Special Rapporteur, Hilding Eek, powerful press organizations had an impact on the Labor government’s attitude during drafting process of the UN Convention on Freedom of Information.21 It has also been shown that a British proposal that sought to augment the words ‘without interference’ to ‘without governmental interference’ was thrashed out in the Human Rights Committee due to the support voiced by the majority of the delegates for protection against any form of interference.22 The right to freedom of opinion is not protected separately under Article 10 as in its counterpart of Article 19. The preparatory work of the ICCPR supports the view that freedom of opinion and expression are separate freedoms.23 Separating opinion from expression in Article 19 has led to all sorts of speculations from the beginning. Does protecting opinion absolutely in paragraph 1 in Article 19 mean very little, as the Chairman of the Human Rights Committee drew attention to during discussions of draft General Comment on Article 19? “Holding an opinion could not be interfered with if no one knew about it. Some phrase should perhaps be added to make clear what was being protected. Perhaps it was the right freely to form opinions without their being imposed, either directly or indirectly, publicly or in private.”24 The question whether there is a distinction between ‘thought’ and ‘opinion’ has been raised with both Article 19 of the ICCPR and Article 10 of the Convention. Some maintain that the concepts, although not identical, are close to each other in meaning; others that the two concepts are complementary; and some say that in both 20

Ibid, Vol. IV, p. 10. H. Eek, Freedom of Information As a Project of International Legislation, A Study of International Law in Making ( A.B. Lundequistska Bokhandeln, Uppsala, 1953) p. 20; referring to U.N. (Doc. A/C/3/SR 321), p. 309. 22 (E/CN.4/365); (E/CN.4/440). Cf., M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (N.P Engel Publishers, Kehl, 1993) p. 339. Emphasis added. 23 Supra note 12, paras. 119–138. 24 D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, (Oxford University Press, Oxford, 1991) p. 45; GC 10 (19). Adopted by the HRC at its 461st meeting on 27 July 1983, (Doc. A/38/40), p. 109. 21

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HERDÍS THORGEIRSDÓTTIR Articles the right to hold an opinion is really a truism and therefore superfluous.25 The process of thinking is protected in the foregoing Articles of those in question here, i.e. Article 9 of the Convention and Article 18 of the ICCPR. There is an interplay and affinity between thought and opinion, even with conscience, which is also protected in the aforesaid, preceding Articles to freedom of opinion. The concepts are certainly complementary to each other but definitely of different characters. Thought is an internal phenomenon referring to a process. Opinion is the result of a thought process or of receiving information and ideas from, as relevant, the media. Thoughts can be of all kinds, not necessarily formulated like an opinion, which brings it closer to a conviction.26 It is ill-founded not to make a distinction between thought and opinion, even if both are part of the realm of the mind and both essential to the liberty of the mind. Thought can be random where opinion is usually decisive. Thought is open-ended and opinion conclusive. Thought may be said to characterize the first step, opinion the second, and so forth. Opinion is in essence a consistent advancement of thought. Opinion need not however, be a logical evolution of a thinking process. It can be a reverberation from the environment. Just like one starts humming a hit song, one’s mind can function as an echo chamber for something often heard and seen. The forming of opinion is not a final stage but subject to changes and alterations. Media coverage may induce hasty changes in public opinion. Opinion is not necessarily as strong a term as conviction but decisive all the same when it comes to making a political choice. The Court has reiterated that requiring the proof of the truth of value judgments is impossible to fulfil and that such a requirement would infringe freedom of opinion itself, which is a fundamental part of the right secured by Article 10,27 albeit value judgments without any factual basis may be excessive and hence subject to restrictions. This submission goes to show that the Court clearly distinguishes between opinions as value judgments and freedom of thought, which is absolute. The fact that freedom of opinion is subject to restrictions under Article 10 renders the right more meaningful not least in light of the drafters’ apprehension of the potential impact of various forces on the delicate internal process of cognitive development. Making a distinction between opinion and thought in Articles 10 and 9 respectively, gives grounds for reasoning that forming an opinion is a necessary part of the political right of freedom of expression and information. The wording is openended and elastic, thus capable of being given a wide range of meanings. The emphasis in the Court’s case law on this right as one of the basic conditions for each individual’s self-fulfilment28 suggests that opinion formation must be taken into 25

Supra note 12, para. 123. Cf., M. Kloepher, Freedom within the press and ‘Tendency protection’ under Art. 10 of the European Convention on Human Rights (Duncker & Humblot, Berlin, 1997 ) p. 17. 26 K. J. Partsch, ‘Freedom of Conscience and Expression, Political Freedoms’, in L. Henkin (ed.), The International Bill of Rights, (Columbia University Press, New York, 1981) p. 217. 27 Lingens v. Austria, 8. 7. 1986, Series A no. 103, para. 46. 28 Application nos. 11553/85 and 11658/85 joined, Hodgson and Others v. United Kingdom, decision of 9. 3. 1987, DR 51, p.143.

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THE CONTESTED NOTION OF FREEDOM OF OPINION account, being a part of individual maturity. Those who argue that freedom of the press as protected under Article 10 is first and foremost the right of media owners or publishers29 depreciate the perspective that the media can be held accountable in forming public opinion. However this was the concern of the drafters, although it is immensely complex to figure out how to protect a person’s opinion against interferences by privately owned media in public international law.30 A deduction from the right to form an opinion, assuming there is such a right, a demand on the media not to disrupt the important process of opinion formation by, for example, systematically leading astray the public is a complex, even impertinent claim. Its effectiveness is also highly questionable. It is, however, the underlying assumption here that if this dilemma is not solved then the alleged protection of Article 10 is next to meaningless. 2. Public Opinion Formed in the Media The interpretation of what the right to freedom of opinion entails has strong ideological and political connotations since interpreting this as a positive right lays burden on authorities to guarantee the protection from any restraints that may cause harm. It is questionable to assert that opinion does not enjoy protection under the Convention from distorting media material. Enjoying the protection of Article 10 means that one is afforded a fundamental right to prosper as an individual in society with others, to mature and develop one’s faculties with the aid of freedom of opinion where the media is recognized as shaping public opinion. Keeping this in mind, it is also relevant to point out that the restriction clause to protect public opinion is in fact a form of regulation of journalistic content, rendering this right not only a negative right from public interference but also a positive claim right against distorting opinion formation – “fourth-rate journalism”.31 Minds of receivers are of crucial importance in the democratic process and this is why the words of those imparting, especially from the forum of the media, carry with them ‘duties and responsibilities’, as these freedoms gain a different meaning depending on the situation and the technical means used to impart.32 Words have always carried more weight when spoken by someone of authority. In Britain in the tenth century, “the Penalty for slander33 was the tearing out of tongue”.34 The only way to avoid mutilation was to pay the ‘wergild’; the price was set for each social class. A prince’s words were dear while a serf’s were insignificant.

29

Kloepfer, supra note 25, pp. 17–18. Partsch, supra note 26, p. 218. 31 Oberschlick v. Austria (No. 2), 1. 7. 1997, RJD 1997-IV, the term used in the dissenting opinion of Judge Matcher joined by Judge Thor Vilhjálmsson, p. 1279. 32 Handyside v. the United Kingdom, 7. 12. 1976, Series A no. 24, para. 49. 33 Slander is an oral method of defamation while libel is defamation on print or in pictures. 34 W. S. Churchill, A History of the English Speaking Peoples: The Birth of Britain (Barnes & Noble, 1993) p. 67. 30

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HERDÍS THORGEIRSDÓTTIR The European Commission of Human Rights35 referred to the ‘duties and responsibilities’ in Article 10 (2) with regard to the exercise of freedom of expression of those who are addressing the public, in this case, on sensitive political issues, to take care that they do not condone to unlawful political violence.36 On the other hand, freedom of expression must be considered to include the right to openly discuss difficult problems such as those facing Turkey in connection with the prevailing unrest in part of its territory in order, for instance, to analyse the background causes of the situation or to express opinions on the solutions to those problems.37 The focus on the impact of media portrayal of groups and minorities on the forming of opinion in society is in congruity with the general trend in human rights rhetoric to widen the scope of protection to the horizontal level.38 It is doubtful, however, to speak of the media and individuals in society on the same footing. The press is a part of the establishment. The biggest publishing businesses with influential newspapers as well as broadcasting companies often rank at the top of the power structure in modern societies. It is thus misleading to speak of horizontal relations between the readers and the newspapers as between equals. The state is no longer omnipresent or omnipotent and the right to free development of the personality is to a large extent conditioned by the media. Judge Matcher reasoned that the media could be held responsible in forming public opinion, indirectly, in a dissenting opinion, joined by Judge Vilhjálmsson, stating: “Lastly, the purpose of Article 10 of the Convention, in my opinion, is to allow a real exchange of ideas, not to protect primitive, fourth-rate journalism which, not having the qualities required to present serious arguments, has recourse to provocation and gratuitous insults to attract potential readers, without making any contribution to an exchange of ideas worthy of the name.”39

The media shapes our self-images to a large extent. The principles laid out in the case law, such as broadmindedness and tolerance, are seen as essential features of journalism in contributing to “the development of every man”.40 The impact of the media on public opinion is recognized. The Commission has explicitly stated that

35

Prior to the adoption of Protocol 11 to the Convention in 1998, complaints were subject to a preliminary examination by the Commission, which determined their admissibility. 36 Karatas v. Turkey [GC], 8. 7. 1999, RJD 1999-IV, para. 37. 37 Erdogdu and Ince v. Turkey, 8. 7. 1999, RJD 1999-IV, para. 52. 38 Cf. A. Clapham, Human Rights in the Private Sphere (Oxford University Press, Oxford, 1998) p. 179. 39 Oberschlick v. Austria (No. 2), supra note 31, dissenting opinion of Judge Matcher joined by Judge Thor Vilhjálmsson, p. 1279. 40 Handyside v. the United Kingdom, supra note 32 ; Barthold v. the Federal Republic of Germany, 25.3.1985, Series A no. 90; Lingens v. Austria, 8. 7. 1986, Series A no. 103.

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THE CONTESTED NOTION OF FREEDOM OF OPINION public opinion is “to a large extent formed and expressed in the media”.41 The Court has confirmed the view that freedom of the press “[furthermore] affords the public opinion one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders”.42 The approach to the media is marked by the rubric that the media is the Public Watchdog and that it has to act as such. Society is not an “experimental laboratory”,43 to quote a US Supreme Court Justice, who maintained that such was the case with the United States. He was warning against a federal prohibition of pornography and stated that the 48 US States were such laboratories. This was in 1957, during which time hard-core pornography was emerging as a major industry throughout the nation.44 It would seem politically incorrect to uphold this view today, say, for a judge to declare that the 43 member states of the Council of Europe were laboratories to experiment with the impact of obscenity on public opinion and consequently on gender equality. The Court, in evaluating the impact of the media, has distinguished between those unversed on the one hand and on the other hand readers that are avid seekers of information, which is expressed in their voluntary subscription of more serious publications. It has held that the potential impact of contested information was less of a threat as the readers were interested in “environmental and public health issues”45 and hence probably better equipped to use their judgment against assertions that otherwise might cause uproar or be misleading. The potential impact of the ideas was more limited46 on an audience or readership that is actively seeking information but not merely devouring television programmes in an uncritical manner. The power of broadcasting is conjectured to proceed from the less critical and more receptive audience than those that read newspapers. This distinction is analogous to the theory distinguishing between public opinion and psychology of the masses, a well-known characterization of masses as “being largely deindividualized, irrational, easily influenced, prone to violent action and altogether of a regressive nature”.47 Dissenting from the majority of the Commission in the Jersild case,48 Mr. Jörundsson, joined by two others, revealed concern that the racist programme at issue “was seen by a wide public comprising people who may not

41

Lingens v. Austria, Commission’s report, 11. 10. 1984, Series A no. 103, para. 74. Lingens v. Austria, supra note 40, para. 42. Emphasis added. 43 Roth v. United States, 354 US 476 (1957). 44 D. L. Teeter et al., Law of Mass Communications: Freedom and Control of Print and Broadcast Media, Ninth Edition, (Foundation Press, New York, 1998) p. 95. 45 Hertel v. Switzerland, 25. 8. 1998, RJD 1998-VI, p. 2298. 46 Ibid, para. 49. 47 Cf., T. W. Adorno, ‘Freudian Theory and the Pattern of Fascist Propaganda’, in Arato and Gebhardt, (eds.), The Essential Frankfurt School Reader, (Blackwell, 1978) p. 118. 48 Discussed infra. 42

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HERDÍS THORGEIRSDÓTTIR necessarily have a critical mind, and whose living conditions may render them more receptive to racist propaganda”.49 3. To be Free of Indoctrination The Court regards the freedoms protected under Article 10 as fundamental for the progress of democratic society and for the development of each individual.50 The Federal Constitutional Court in Germany interprets the principle of freedom of expression as the “free development of the personality”.51 Prima facie the right to hold and form an opinion would seem to be the right to be left alone in doing so, e.g. to be free from external indoctrination. Freedom of opinion is not the right to defend one’s thoughts and expressions in public, as that would fall under the category of freedom of expression. As reflected in the UN Human Rights Committee comment52 on freedom of opinion, it is not clear what is being protected and how it is protected. Perhaps it is not even clear why it is protected, unless to guarantee that individuals in a democratic society are cognitive beings. Inherent in the political aspect of freedom of opinion is the reciprocal need of society for active citizens, for participation on a pluralistic level and the need for the individual to take a political stand on the basis of his informed opinion. The only way to make a citizen out of a subject is to confer on him those rights, which writers in public law in the nineteenth century teemed activae civitatis.53 Freedom of opinion is closely related to the freedoms of thought and conscience and falls into the category of basic communication and political rights.54 It is of a defensive nature, the right is to enable the individual to ward off impermissible interference exercised either by state or private parties.55 It is a core Convention right. It is, in fact, a right to enjoy the external stimuli of becoming a person in society with others. The individual is a social being and needs social skills to participate in the community. Forming an opinion is an aspect of self-realization, which cannot be divorced from the ‘social construct of reflection’ and is in a sense analogous to education,56 even though it is more self-initiated rather than institutionalized. Protecting, as Article 10 does, freedom to hold opinions without interference by public authority is recognition of the fact that opinion can be influenced and is influenced to a large extent by the authorities. In all the member 49 Jersild v. Denmark, Commission’s report, 8. 7. 1993, Series A no. 298, dissenting opinion of Mr. Gaukur Jörundsson joined by Sir Basil Hall and Mr. Geus, p. 40. 50 Handyside v. the United Kingdom, supra note 32, para. 49. 51 Glasenepp v. the Federal Republic of Germany, 28. 9. 1986, Series A no. 104; referring to The Federal Constitutional Court’s judgments 23. 10. 1952; 17. 8. 1956. 52 McGoldrick, supra note 24, p. 45; GC 10 (19). Adopted by the HRC at its 461st meeting on 27 July 1983, (Doc. A/38/40), p. 109. 53 N. Bobbio, The Future of Democracy, (University of Minnesota Press, 1987) p. 35. 54 Nowak, supra note 22, pp. 312–313. 55 Ibid. 56 Cf., R. Jayakumar Nayar, ‘Not Another Theory of Human Rights’, in Gearty and Tomkins (eds.), Understanding Human Rights (Pinter, 1999) pp. 184–185.

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THE CONTESTED NOTION OF FREEDOM OF OPINION states of the Council of Europe governments have the power to establish institutions that in practice are educative and indoctrinating- public schools, state universities, state financed political activities, parties or party publications, or state broadcasting.57 Of all these, the incessant impact of the general news media, broadcasting and printed press, albeit privately owned, is the most persisting, affecting the opinion process of individuals throughout their lives. This is why it is imperative to scrutinize the defensive freedom of opinion from the authority of the media. The right to develop into a moral actor on the democratic scene requires that the individual is not misguided from that path or deterred from taking a political stance.58 Given the great expectations to the enlightenment role of the press,59 the stultifying impact of sensationalist journalism on an unsuspecting public has evoked concern. ‘Misleading’ or ‘distracting’ people from matters of serious concern is a known psychological power method,60 which has led to much speculation about the sensationalist media with its stultifying effects, as evident from the admonition against ‘fourth-rate journalism’ in the Court’s case law.61 Since forming an opinion does not take place in a vacuum, the question arises if freedom of opinion does not also entail the right to be protected against media manipulation of information. It is presumed, as reflected in a recent Parliamentary Assembly report,62 that modern day media is polluting the minds of people with trivial stuff. The report depicts concern over ‘infotainment’ where sensational stories and ‘Big-brother-style’ programmes are replacing independent editorials.63 It may be questioned whether such tactics are analogous to ‘brainwashing’, which according to the Court is not compatible with respect for the freedom of thought and conscience.64 Low-level media-culture may lead to what philosopher Herbert Marcuse described as the “comfortable, smooth, reasonable, democratic un freedom”, hence evoking the question of the extensity of protection offered.65 The UN Human Rights Committee has concluded that with regard to the forming of public opinion, little attention has so far been given to the fact that, because of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of 57 Cf., F. Schauer, Free Speech: a philosophical enquiry (Cambridge University Press, 1982) p. 156. 58 Cf., infra. 59 Cf., Sunday Times v. the United Kingdom, 26. 4. 1979, Series A no. 30, para. 65. 60 Thomas Jefferson spoke of his “hostility of every form of tyranny over the minds of men”. 61 Oberschlick v. Austria (No. 2), supra note 31, dissenting opinion of Judge Matcher joined by Judge Thór Vilhjálmsson, p. 1279. 62 Parliamentary Assembly Doc. 9000, 19. 3. 2001, Freedom of Expression in the media in Europe; Report Committee on Culture, Science and Education. (Rapporteur: Mr. Guyla Hegyi, Hungary, Socialist Group). 63 Ibid. 64 Kokkinakis v. Greece, 25. 5. 1993, Series A no. 260, para. 48. 65 H. Marcuse, One Dimensional Man: Studies in the ideology of advanced industrial society (Routledge & Kegan Paul, London, 1968) p. 1.

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HERDÍS THORGEIRSDÓTTIR everyone to freedom of expression in a way that is not provided for in the restriction clause of Article 19 (3) of the ICCPR,66 which is the restriction clause parallel to Article 10 (2) of the Convention. There are eleven potential grounds for restrictions enlisted in Article 10 (2) while they are ‘only’ six in Article 19 (3). Instead of taking into account all the particular problems that might be necessary, during the drafting of Article 19, the route was chosen to enlist the general terms with public purposes. As with Article 10 (2) the restriction clause of Article 19 of the ICCPR is introduced by a preamble, which makes both clauses unique in comparison with other provisions in their respective documents. The preamble emphasizes that the freedoms protected carry with them duties and responsibilities and these seem in particular relevant where the press is concerned. Presumably the duty is to conduct journalism, worthy of the name, with regard to imparting information accurately and truthfully and respecting the enumerated values intended for protection,67 as protecting freedom of opinion is fundamental to the commitments and aims of the Convention. The media as a legal person is bound by Article 10, which if taken in conjunction with Articles 17 and 14, prohibits it from abusing its freedom of expression to manipulate public opinion or conduct journalism to the detriment of the democratic fabric and dignity of individuals. An irresponsible medium, whether preoccupied with sensationalist conduct to increase revenues or manipulating public opinion for ulterior political motives, surely goes against the notion of the ‘duty to form the truest opinion’ and the general perception of the ‘vital role’ of the press in democracy. The Court has emphasized that it attaches great importance to journalism that is mindful of allowing readers to form their own opinion.68 The Court in Kokkinakis v. Greece provided that thought, conscience and religion are not only vital to make up the identity of believers and their conception of life, but also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissoluble from a democratic society, which has been dearly won over the centuries, depends on it.69 The case concerned the conviction of a Jehovah’s Witness for proselytism. The applicant complained of a restriction of freedom of religion and of restriction of freedom of expression of general socio-philosophical opinions. In weighing the requirements of the protection of the rights of others from the conduct of which the applicant stood accused, the Court distinguished between bearing Christian witness and improper proselytism.70 The freedom to expound one’s religious or philosophical beliefs and try to get other people to share them or even convert them is not a violation of Article 9,71 unless improper pressure is exerted on people in distress or need; even entailing the use of ‘brainwashing’, 66 A/38/40, annex VI, 109; cf., A. Clapham, Human Rights in the Private Sphere (Oxford University Press, Oxford, 1998) p. 110. 67 Partsch, supra note 26, p. 219. 68 Lopez Gomes da Silva v. Portugal, 28. 9. 2000, RJD 2000-X, para. 35. 69 Kokkinakis v. Greece, supra note 64, para. 31. 70 Ibid., para. 48. 71 Ibid., para. 31.

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THE CONTESTED NOTION OF FREEDOM OF OPINION which is not compatible with respect for freedom of thought and conscience.72 Corrupting people’s minds and offering material or social advantages to win over others is hence not compatible with Article 9. The Court found a violation of Article 9 in this case as the Greek government had not been able to specify in what way the applicant Jehovah’s Witness had attempted to convince his neighbour by improper means. Judges Foighel and Loizou, dissenting in Kokkinakis, called attention to the intrusive form of proselytism as opposed to genuine, open and straightforward teaching of a religion, protected under Article 9. The term ‘teach’ entails openness and uprightness and the avoidance of the use of devious or improper means or false pretexts in order to gain access to a person’s home, “and once there abuse the courtesy and hospitality extended, take advantage of the ignorance or inexperience of those there”.73 These remarks are of interest in relation to the impact of the media in its ‘proselytism’ albeit not of a religious kind. The underlying thought of Judges Foighel and Loisou is that even agitation if straightforward should enjoy protection but not if it is insidious and aims at taking advantage of those who are inexperienced and caught off guard. This is a valuable thought when agitation is set in context with the related concept of freedom of expression – the distinction between Articles 9 and 10 in this regard mainly drawn in the case of manifestation of religion74 – and taken in conjunction with Article 8. The media has access to the homes of people and it may due to its enormous impact, insidiously be taking advantage of those who are unversed or inexperienced.75 In this sense it may violate either the “spirit of tolerance”,76 broadmindedness or pluralism, which are all essential features of democracy. In the context of Article 9, the Court has submitted that a state may legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas judged incompatible with the respect for the freedom of thought and conscience.77 In 1890 two young Boston lawyers wrote an article in Harvard Law Review, often named as the best example of the influence of law journals on the development of law, emphasizing how the press by invading privacy was overstepping the obvious bounds of propriety and decency, stating that “modern enterprise and invention have, through invasions upon [the individual’s] privacy, subjected him to

72

Ibid., para. 48. Ibid., joint dissenting opinion of Judges Foighel and Loizou, p. 40. 74 Kokkinakis v. Greece, Commission’s report 3. 12. 1991, Series A 260, para. 78: The Commission submitted that when the exercise of freedom of expression consists in the freedom to manifest one’s religion or belief or worship, it is primarily the right guaranteed by Article 9. 75 Jersild v. Denmark, supra note 49, dissenting opinion of Mr. Gaukur Jörundsson joined by Sir Basil Hall and Mr. Geus, p. 40. 76 Cf., Otto-Preminger Insitute. v Austria, 2. 9. 1994, Series A no. 295, para. 47. 77 Ibid., para. 47. 73

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HERDÍS THORGEIRSDÓTTIR mental pain and distress, far greater than could be inflicted by mere bodily injury”.78 This view if relevant more than a century ago is if anything much more pertinent today. Since there is an overlap between Articles 9 and 10 with regard to evangelisation or proselytism when exercised in the media, the opinion of Judges Foighel and Loizou becomes even more cogent when warning against the “persistent efforts of some fanatics to convert others to their own beliefs by using unacceptable psychological techniques on people, which amount in effect to coercion”.79 A somewhat controversial television evangelisation is practiced in Iceland through broadcasting, resembling such channels widespread in the US, mainly airing American programmes. The undertaking rests to a large extent on individual donations. The operation is based on government licensing, requiring a permit for operation, which is based on broadcasting law. The European Convention on Transfrontier Television80 elaborated in line with Article 10, states in its Preamble that the dignity and equal worth of every human being constitute fundamental elements in the aim of the Council of Europe. Article 7 of Chapter II of the European Convention on Transfrontier Television81 on programming matters states the responsibilities of the broadcaster: 1. All items of programme services, as concerns their presentation and content, shall respect the dignity of human being and the fundamental rights of others. In particular, they shall not: a.

Be indecent and in particular not contain pornography;

b.

Give undue prominence to violence or be likely to incite to racial hatred.

2. All items of programme services which are likely to impair the physical, mental or moral development of children and adolescents shall not be scheduled when, because of the time of transmission and reception, they are likely to watch them. 3. The broadcaster shall ensure that news fairly represent facts and events and encourage the free formation of opinions.82

It is quite clear from the case law that the freedoms in Article 10 of the Convention entail the right to form an opinion in a free manner, e.g. without unnatural external

78 Samuel Warren and Louis D. Brandeis, ‘The Right to Privacy’, 4 Harvard Law Review (1890) p. 196, quoted in D. L. Teeter et al., supra note 44, pp. 304–305. 79 Kokkinakis v. Greece, supra note 64, joint dissenting opinion of Judges Foighel and Loizou, p. 40. 80 ETS No. 132 1989; European Conventions and Agreements, Vol. V 1983-1989, p. 242. 81 Ibid. 82 Emphasis added.

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THE CONTESTED NOTION OF FREEDOM OF OPINION pressures and misleading practices. Forming an opinion is a delicate process, where manipulative techniques are in breach of the Convention. The media’s task in mediating information and analysis has the effect in theory to help people to shape their convictions and form an opinion on the basis of the knowledge acquired from the media. This provides them with the means to make an intelligent choice when voting. The process of opinion formation constitutes an essential procedure in democracy. It is a prerequisite for intellectual maturity. It is the means by which a majority comes to be a majority, in the words of Dewey through “antecedent debates, modification of views to meet the opinions of minorities”.83 The Court has held that the protection of personal opinions secured by Article 10 is one of the objectives of political participation.84 If the forming of opinion and public opinion is not free of external coercion then protection is not effective and the press is not functioning as expected with the Article 10 guarantee. An example of this is if advertisers or media owners in collaboration with political forces try to alter the public conception of an important matter of public interest and sway it to some private interests. In such a case the public has been deceived of its sovereignty or potential for self-rule. If the opinion formation is not free of internal coercion, i.e. if journalism lacks integrity and access to the public through the forum of the media is blocked and manipulated, the public becomes a vehicle of public opinion. The Court’s jurisprudence concerning the process of forming an opinion started out with the fresh approach that forceful, shocking and disturbing opinions constituted a necessary element for both democracy and individual development.85 In other words that in order to acquire the characteristics essential for democratic citizenship people needed to be exposed to all kinds of ideas having the slightest redeeming social importance; unorthodox, shocking, offending ideas, controversial ideas, hateful ideas not only to the prevailing social climate but also towards minorities.86 All ideas enjoy protection under Article 10 unless excludable because they encroach upon the limited area of more important interests. Under the last mentioned category morals seem to have more weight87 than the injury words can cause towards socially excluded ethnic minorities.88 Article 10 is generous and nondiscriminating with regard to ideas. Yet, when states chose to suppress certain expression that may affect the opinion of people towards sexual or religious matters 83

Dewey quoted in J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (The MIT Press, 1996) p. 304. 84 Cf., Young, James and Webster v. the United Kingdom, 13. 8. 1981, Series A no. 44, para. 5; Ezelin v. France, 26. 4. 1991, Series A no. 202, para. 37; Vogt v. Germany, 26.9.1995, Series A no. 323, para. 64. 85 Handyside v. the United Kingdom, supra note 32, para. 49. 86 Cf., Jersild v. Denmark, supra note 49. 86 Otto-Preminger-Institute v. Austria, supra note 76. 87 Ibid.; Wingrove v. the United Kingdom, 25. 11. 1996, RJD 1996-V, p. 1937 88 Cf., Jersild v. Denmark, supra note 49, joint dissenting opinion of Judges Ryssdal, Bernhardt, Spielmann and Loizou, p. 29.

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HERDÍS THORGEIRSDÓTTIR – morals – then the Court does not feel up to solving such controversies and grants the states their margin of appreciation. This somewhat criticized part of the case law confirms firstly that the Court places the highest priority on leaving almost no margin to the member states in meddling with political speech and secondly that it does not view ‘morals’ as a crucial aspect of the democratic evolution. With morals the Court finds that there is no uniform conception of the significance of religion in society and the manner in which beliefs and doctrines are opposed.89 Subsequently it may be concluded that the premium attached to political speech90 reflects the impact attributed to the press in shaping public opinion. Harry Kalven, professor at the University of Chicago Law School, and a notable writer on the law of free speech said, “society can, for example, either treat obscenity as a crime or not a crime without thereby altering its basic nature as a society”.91 However a society that does not tolerate political dissent defines itself as a despotic society. In the words of Kalven, “political freedom ends when government can use its powers and its courts to silence its critics”.92 4. The Duty to Form an Opinion and Express it Without Reserve The further realization of human rights is not conceivable without active public support. John Stuart Mill held that it was the ‘duty’ of governments and individuals, to form the truest opinions they can, to form them carefully, and never to impose them upon others unless they are quite sure of being right: “But when they are sure (such reasoners may say), it is not conscientiousness but cowardice to shrink from acting upon their opinions, and allow doctrines, which they honestly think dangerous to the welfare of mankind, either in this life or in another, to be scattered abroad without restraint.”93

Forming an opinion in the sense of Mill is a right not to be coerced by anyone, be it government or groups in society. Secondly, it is a duty to form an opinion for the sake of the ‘welfare of mankind’, which is analogous to the further realization of human rights in today’s rhetoric, the words in the Convention’s Preamble. Individuals and governments do not only have the duty to form an opinion but also the responsibility of taking pains in doing so. The political indifference of those who 89

Müller and Others v. Switzerland, 24. 5. 1988, Series A no.133, para. 30 and para. 35; Otto Preminger-Institute v. Austria, supra note 76, paras. 47 and 50. 90 This is not excluding that morals and religious matters in particular do not fall under the rubric of political speech. Rather it is being accentuated how the highest value that the Court attaches to political speech is indicative of the meaning of press freedom and its function in forming public opinion in democracy. 91 Cf., discussion on Harry Kalven’s theory in J. Rawls, Political Liberalism (Columbia University Press, 1996) p. 342. 92 Kalven quoted in A. Lewis, Make No Law: The Sulllivan Case and the First Amendment (Vintage Books, 1992) p. 53. 93 J. S. Mill, On Liberty (Bantham, 1993) p. 23.

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THE CONTESTED NOTION OF FREEDOM OF OPINION only seek to cultivate their gardens is a threat to the politically active citizens condoning to the realization of human rights.94 The concern of Mill was not only to prevent the opinion formation from any coercion, be it from government or society, but also in the responsibility of all to form opinions that had social values for the benefit of mankind. The Convention’s case law confirms Mill’s theory in ascribing to the press the responsibility of not only imparting information and ideas to the public but also in enlightening it.95 The Universal Declaration of Human Rights is the paradigm of the European Convention as evident from the latter’s Preamble. Article 29 of the UDHR states: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” “Men might as well be imprisoned as excluded from the means of earning their bread”, said John Stuart Mill.96 In at least one member state of the Council of Europe people fear for their lives if they have political opinions that authorities find unpleasant. In the case of Leander v. Sweden, the outcome of a personnel control when applicant applied for a job at a Naval Museum was unfavourable. Chapter 2, section 3 of the Swedish Instrument of Government,97 which forms the main constituent of the Swedish Constitution prohibits the registration of opinion, providing that “no entry regarding a citizen in a public register may without his consent be founded exclusively on his political opinion”. Leander did not in his complaint call into question the government’s power within the limits set by Articles 8 and 10 of the Convention to bar sympathizers of certain extreme political ideologies from security-sensitive positions and to file information on such persons in the register kept by the Security Department of the National Police Board.98 Leander, however, claimed that the personnel control procedure, as applied in his case, gave rise to a breach of Article 8. He contended that nothing in his personal or political background99 could be regarded of such a nature as to exclude him from the employment in question. The Court held that it was uncontested that the storing of information and releasing coupled with refusal to allow Mr. Leander an opportunity to refute it amounted to an interference with his right to a private life as guaranteed by Article 8 (1).100 However, the Court unanimously went on to find that the registering of such information by the secret police was necessary for the national security and had sufficient procedural safeguards to satisfy the requirements of 94

Cf., N. Bobbio, supra note 53, p. 57. Sunday Times v. the United Kingdom, supra note 59, para. 65. 96 Mill, supra note 93, p. 38. 97 Regeringsformen, (SFS 1974:152) 2 kap, 3 §: Anteckning om medborgare i allmänt register får ej utan hans samtycke grundas enbart på hans politiska åskådning. 98 Leander v. Sweden, 26. 3. 1987, Series A no. 116, para. 47. 99 Earlier he had been a member of the Swedish Communist Party, and a member of an association publishing a radical review, had been active in the Swedish Building Worker’s Association and he had travelled a couple of times to Eastern Europe. A criminal conviction stemmed from his time in military service and consisted of a fine of SEK 10 for having been late for a military parade. (Ibid., para. 17), 100 Ibid., para. 48. 95

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HERDÍS THORGEIRSDÓTTIR Article 8 (2). Accordingly there had not been a breach of Article 8 nor of Article 10. The Court emphasized that “access to the civil service is not as such enshrined in the Convention”101 and then added: “apart from those consequences the interference did not constitute an obstacle to his leading a private life of his own choosing”.102 The Court seems unversed in what constitutes normal family life in assuming that an individual who has to decide between suppressing his political opinions or provide for his children can live his private live as he chooses. To face such consequences, as seriously diminishing one’s opportunities on the job market due to political convictions, is a cause for concern for most people. An individual may be faced with the option of leading a life of material security or face crisis if he sticks to his civic integrity. Politically active individuals are often relegated from the ‘establishment’, if their opinions are not approved of by the system of institutionalized way of ‘right thinking’. In his work, ‘One Dimensional Man’, Herbert Marcuse describes this problem, saying that the rights, which were vital factors in the earlier stages of modern societies, have lost their traditional rationale and content: “Freedom of thought, speech and conscience were  just as free enterprise, which they served to promote and protect  essentially critical ideas, designed to replace an obsolescent material and intellectual culture by a more productive and rational one. Once institutionalized, these rights and liberties share the fate of the society of which they had become an integral part. The achievement cancels the premises.”103

Kloepfer, a German law professor, reduces the right to opinion to “an (inner) freedom of (holding an) opinion”, equating it with the freedom of thought, protected by Article 9 (1) of the Convention. In his view opinion is not protected as such by Article 10 of the Convention but on the contrary it is covered by Article 9 (1). The reasoning he provides is: “If one understood the freedom of (holding) an opinion as being under the area of protection of Article 10 (1), it would be covered equally by the possibilities of restriction of Article 10 (2). This result, however, would be unacceptable, as the freedom of (holding) opinion with reservations is simply inconceivable104 in democratic states under the rule of law.”105 The fact is that the freedom of opinion is subject to restrictions according to Article 10 (2) while the

101

Cf., Kosiek v. the Federal Republic of Germany, 28. 8. 1986, Series A no. 105, paras. 34–

35. 102

Leander v. Sweden, supra note 98, para. 59. Marcuse, supra note 65, p. 1. 104 The Court’s conclusion in Kosiek v. the Federal Republic of Germany, supra note 101, confirms that restriction of opinion is not unacceptable. Apart from overlooking that, how would Kloepfer define economic pressure influencing opinion? What are the subliminal forms of influence that he recognizes threaten opinion formation at the same time as he thinks that the protection of opinion in Article 10 is a redundancy? 105 Kloepfer, supra note 25, p. 18. 103

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THE CONTESTED NOTION OF FREEDOM OF OPINION freedom of thought and conscience are absolute and not subject to the restrictions in Article 9 (2) but solely the freedom to manifest one’s belief. An example of the fact that freedom of opinion can be with reservation in a democratic state under the rule of law is the Basic Law of Germany where those publicly employed must comply with a duty of loyalty to the Constitution. Germany was found in breach of Article 10 in the case of Dorothea Vogt,106 who was dismissed from her post as a secondary school teacher of German and French, on account of her membership of the German Communist Party (DKP). The duty of political loyalty, which admittedly restricts civil servants’ fundamental rights, is one of the traditional principles of the civil service and has constitutional status by virtue of Article 33 (5) of the Basic Law.107 Ms. Vogt was appointed as a permanent civil servant in 1979 notwithstanding that the authorities were aware at the time that she was a member of the DKP. However, disciplinary proceedings were commenced against her in 1982 on the grounds that she had failed to comply with her duty of political loyalty as a result of her activities with the DKP since 1980. She was dismissed in October 1987 on the grounds that in associating herself with the DKP she had betrayed the relationship of trust between herself and her employer. Ms. Vogt maintained that her dismissal from the civil service on account of her political activities as a member of the DKP had infringed her right to freedom of expression secured under Article 10. The applicant disputed the necessity of the interference. Since the DKP had not been banned by the Federal Constitutional Court, her activities on behalf of that party, which had been the basis of the ‘charges’ brought against her,108 had been lawful political activities for a lawful party and could not therefore amount to a failure to fulfil her duty of political loyalty. Compliance with that obligation had to be assessed not in terms of the abstract aims of a party, but with reference to individual conduct. In an assessment report drawn up in March 1981 her capabilities and work were described as entirely satisfactory. It was stated that she was held in high regard by her pupils and their parents and by her colleagues. From this point of view she had always been beyond reproach, both in the performance of her duties, in the course of which she had never sought to indoctrinate her pupils, and outside her professional activities, where she had never made any statement that could have been considered anti-constitutional. A bare majority of the Court, ten against nine, considered that it was not “necessary in a democratic society” for Ms. Vogt to have been dismissed and it did not withhold its view that German authorities had shown fanaticism in this case. The Court found the absolute nature of that duty as construed by the German courts striking: “It is owed equally by every civil servant, regardless of his or her function and rank. It implies that every civil servant, whatever his or her own opinion on the matter, must unambiguously renounce all groups and movements which the competent authorities hold to be inimical to the Constitution. It does not allow for 106

Vogt v. Germany, supra note 84. Ibid., para. 25 108 Ibid., para. 19. 107

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HERDÍS THORGEIRSDÓTTIR distinctions between service and private life; the duty is always owed, in every context.”109 In two prior German cases where applicants complained of opinion oppression, Kosiek110 and Glasenepp,111 the Court held that access to the civil service lay at the heart of the issue, not restriction of freedom of opinion. It was palpable in both cases that the applicants (both teachers) could only have access to the desired posts by accepting certain restrictions on their freedom of opinion and expression. Consequently the Court should have examined whether these resulting restrictions were justified under Article 10 (2).112 The Court should have scrutinized the effect of the German law on the freedom of opinion and expression of individuals in the civil service as decisive for the question if Article 10 is applicable. As it is now, the fear of losing one’s job or not gaining access will undoubtedly compel individuals to censor themselves in order to get a job. The decision of the Court in Vogt may be interpreted as a warning against the chilling effect of this German law when interpreted too broadly. The Court had previously pronounced the requirement to prove value judgments, (opinions) “impossible of fulfilment and in itself an infringement of freedom of opinion”.113 In none of the German cases was there a question of ‘clear and present danger’ involved, as is the yardstick on the other side of the Atlantic when the expression of political opinion is restricted. At the heart of Article 10 case law is the protection of political debate, which may be restricted if found to incite to violence in a situation where necessary, not least in situations where terrorism is probable.114 Mill warned that to refuse to hear an opinion, because ‘they’ are sure that it is false, is to assume that their certainty is the same as absolute certainty.115 Kalven argued that to repress revolutionary and subversive advocacy is to suppress the discussion of the underlying reasoning and that is equivalent to restricting the discourse with eliminating the reason in judging the justice of the basic structure and the social policies. Thus, the basic liberty of freedom of opinion is violated.116 The Court is not, however, able to detect the quasi-conscious mechanisms by which individuals voluntarily restrict and confine their expression. This is a known syndrome with civil servants, journalists and careerists in most countries. When 109

Ibid., para. 59. The Court took note of Germany’s experience under the Weimar Republic, which, when the Federal Republic was founded after the nightmare of Nazism, led to its Constitution being based on the principle of a ‘democracy capable of defending itself’ (wehrhafte Demokratie). 110 Kosiek v. Federal Republic of Germany, supra note 101. 111 Glasenepp v. Federal Republic of Germany, supra note 51. 112 Cf., Van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (Kluwer Law International, The Hague, 1998) p. 564. They hold this criticism also to be true for the Leander judgment, supra note 98. 113 Lingens v. Austria, 8. 7. 1986, Series A no. 103. 114 Karatas v. Turkey [GC], 8. 7. 1999, RJD 1999-IV, paras. 50–51. 115 Mill, supra note 93, p. 21. False statements of facts are another story and not protected. Cf., Prager and Oberschlick v. Austria, 26. 4. 1995, Series A no. 313, para. 37. 116 H. Kalven, quoted in J. Rawls, supra note 91, p. 346.

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THE CONTESTED NOTION OF FREEDOM OF OPINION such self-censorship occurs within the media it is a grave threat to democracy, as the press is not adhering to its vital role of informing the electorate. The damage is manifold as it impinges on the public’s right to know and it is hurtful to the individual dignity of the person who is not free to form an opinion and cannot express it without reserve. It has in the words of Mill, “baneful consequences to the intellectual”117 and hence to the mental condition of the country. Every voluntary restriction of expression for fear of the consequences may be likened to the spreading of metastasis in a cancerous body. Article 29 of the UDHR is a good reminder of the corollary duties to the rights as well as Article 10 (2) of the Convention. Rawls speaks of the capacity for a sense of justice and a capacity for the conception of the good and the powers of reason.118 This is in essence the prerequisite for co-operation in society where the furtherance of human rights and democracy is the goal. In the Preamble of the Convention the European governments are required to take steps in the ‘collective enforcement’ of certain of the rights in the Universal Declaration. Article 29 (2) UDHR states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”119

Being responsible in society means that an individual has to be able to speak up in the face of much wrongdoing without fear of losing his position. As Justice Brandeis accentuated, the essence of liberty is courage.120 Democracy requires courageous and self-reliant individuals, people who develop their own opinions and do not fear entering the public sphere. It is also a duty not to tolerate wrongdoing or indirectly allow it by not trying to prevent it. The Preambles of the 1966 UN International Covenants of Civil and Political Rights and of Economic, Social and Cultural Rights refer to the individual’s “duties to other individuals and to the community to which he belongs”.121 The African Charter on Human and Peoples’ Rights has for instance codified such duties essential for individual responsibility in society. One of these duties is to “respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance”.122 The duty and responsibility of having an opinion in Article 10 (2) subject to certain restrictions, which every right holder has the corollary duty to respect as this 117

J. Gray, Mill on Liberty: A Defense, 1983 Routledge, p. 103. Rawls, supra note 91, p. 19. 119 Emphasis added. 120 Whitney v. People of the State of California, 274 US 357 (1927). 121 Fifth paragraph of the preamble in both the ICCPR and the ICESCR. 122 Cf., T. Opsahl and V. Dimitijevic ‘Articles 29 and 30’, in Alfredsson and Eide (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff Publishers, The Hague, 1999) pp. 633–652. 118

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HERDÍS THORGEIRSDÓTTIR freedom, is the basic condition for the progress of democratic society and the development of every man, as the Court submitted in Handyside.123 Suppressing an opinion in the form of idea within the media may violate the rights of others who because of the means are dependent on the media for this information. It is the task of the media and society to permit everyone to develop their personalities and constantly suppressing opinions for fear  not of direct public oppression  but for fear of an indirect revenge is harmful to the dignity of everyone and encompasses critical consequences for society as a whole. Dignity precedes individual autonomy and creating a community requires autonomous individuals but not individuals created by “ready made general ideas”, as de Tocqueville cautioned in Democracy in America more than century ago.124 5. Dignity in Context of Opinion Formation The Court has submitted that “the very essence of the Convention is respect for human dignity”.125 As evident from the ‘Handyside-formula’126 one of the underlying reasons for protecting the principle of freedom of expression and opinion is to protect the individual self-realization. Individual dignity is to a large extent dependant on the perception of one’s standard. One’s dignity is lost if one is ridiculed and one’s self-worth is impeached. The Preamble to the UDHR speaks of the “inherent dignity and the equal and inalienable rights of all members of the human family”. A rationalization of that concept as a viable legal concept127 requires that it is set in context with the process of opinion formation and media conduct looked at from Article 10 perspective. The Convention does not specifically protect the right to dignity unless as a general principle. The new EU Charter of Fundamental Rights states this explicitly in Article 1: “Human dignity is inviolable. It must be respected and protected.” Article 1 of the 1948 UDHR states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards another in a spirit of brotherhood.” The Preamble to the ICCPR states: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” According to Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the provisions of international treaties are not to be interpreted in isolation but rather in context.

123

Handyside v. the United Kingdom, supra note 32, para. 49. A. de Tocqueville, Democracy in America (Random House, 1981) p. 309. 125 Pretty v. the United Kingdom, application no. 2346/02, judgment of 29. 4. 2002 (not yet published), para. 65; Kokkinakis v. Greece, supra note 64, partly dissenting opinion of Judge Martens, p. 37. 126 Handyside v. the United Kingdom, supra note 32, para. 49. 127 Jayakumar Nayar, supra note 56, p. 170. 124

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THE CONTESTED NOTION OF FREEDOM OF OPINION The legal significance of the Preamble has been generally recognized under international law and is emphasized by the organs of the Convention.128 Focusing on dignity in relation to freedom of opinion is an acknowledgement of the fact that the legal approaches are not discharged of political values. An example is the indictment of Mackinnon that absolute protection of free speech, applied hypocritically and inconsistently to protect pornography and other disparaging speech, is an act of inequality. Underlying restrictions on hate speech, pornography and other material is the reasoning that without such restraints much harm may be caused to the forming of public opinion, morals, the self-consciousness and the dignity of the individual. The approach that favours regulation to protect equality of treatment of such an intangible phenomenon as someone’s dignity is indicative of an affirmative understanding of Article 10 rights. The provision in context of the Convention is seen as chartering legal intervention for social change rather than merely as commanding hands off policy of non-intervention. The affirmative understanding is based on the view that discriminative media coverage of minorities is silencing and subordinating leading to apathy and in general stultifying. Albeit tolerance is an indissoluble aspect of democracy it may not breed broadmindedness if it turns into ‘a speech-you-hate-test’ in the words of MacKinnon, i.e. the worse the speech protected the more principled the result. 129 6. Hate Speech In accordance with international human rights obligations, states have to take measures, which among others include the prohibition of discrimination in the media of certain groups on ground of sex, race and other factors. The Convention does not contain a free standing right not to be discriminated against on unlawful grounds, such as race, sex, colour, political or other opinion and so forth. The Convention thus lags behind on the global level, where the elimination of discrimination of racism and sexual prejudices has received a good deal of attention. Considering the fact that the Convention was in part a reaction to the serious human rights violations of the holocaust it is surprising that it does not entail a parallel provision as those explicitly prohibiting hate speech, such as Article 20 (2) of the ICCPR and Article 4 of the International Convention on Elimination of All Forms of Racial Discrimination130 to which the Court has referred in its case law, submitting that there is no conflict between Article 10 and the aforementioned Convention.131 Article 20 of the ICCPR does not set forth a subjective right, but states:

128

Nowak, supra note 22, p. 2. C. A. MacKinnon, Only Words (Harvard University Press, 1993) p. 75. 130 Hereinafter referred to as the ICERD. 131 Prohibition of racial discrimination is to be found in a number of international instruments, for example the United Nations Charter (para. 2 of the Preamble, Articles 1 (3), 13 (1)(b), 55 (c) and 76 (c); the Universal Declaration of Human Rights (Articles 1, 2 and 7) and the ICCPR (Articles 2 (1), 20 (2) and 26). The most directly relevant treaty is the 1965 129

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HERDÍS THORGEIRSDÓTTIR 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 20 of the ICCPR132 is lex specialis of Article 19 of the ICCPR providing for freedom of expression.133 It does not only authorize interference with the freedom of expression but also obligates state parties to provide for corresponding restrictions. Article 20 (2) of the ICCPR mirrors Article 4 of the ICERD. That provision condemns group defamation and language that incites racial hatred, and outlaws those organizations that disseminate literature that espouses ideas based on theories of racial superiority. Racial defamatory acts that promote racial hatred and discrimination are punishable by law. These proscriptions are laid down with due regard to the principles expressed in the UDHR and Article 5 of the ICERD. Article 13 (5) of the ACHR prohibits at the same time any propaganda for war and any advocacy of national, racial or religious hatred. Article 10 (2) can be taken to set restrictions to group defamation by reference to the ‘rights of others’, which constitute a legitimate aim of restriction if necessary in a democratic society. The prohibition of propaganda for war is compatible with Article 10 (2) where a few legitimate conditions for restriction may serve the purpose of banning such propaganda, i.e. national security, territorial integrity or public safety, for the prevention of disorder or crime, if passing the proportionality test. In thirteen cases against Turkey decided by the Court on 8 July 1999 concerning writings, interviews or editorials on the Kurdish issue, the Court held that restrictions on expression due to incitement to violence were incompatible with Article 10 except in two cases. In both cases the Court found the texts “capable of inciting to further violence”. It characterized the article in the first case as “incitement to violence”134 and the letters in the second as “hate speech and the glorification of violence”.135 Article 17 of the Convention allows action to be taken against an individual if he uses his right to freedom of expression in a subversive way. The state may interfere with the freedom of expression rights of individuals if those freedoms facilitate the attempt to derive therefrom a right to engage in activities aimed at the International Convention on the Elimination of All Forms of Racial Discrimination, which has been ratified by a large majority of the Contracting States to the European Convention. 132 The ICCPR was signed by the US in 1977; eleven years after the U.N. General Assembly had adopted it. The US ratification in 1992 was conditioned on number of reservations. In particular Article 20 was seen as directly conflicting with the First Amendment, which provides that Congress shall make no law in abridging the freedom of speech. Cf., D. P. Stewart, ‘U.S. ratification of the Covenant on Civil and Political Rights: The Significance of the reservations, understandings and declarations’ 14:3-4 HRLJ (30 April 1993) p. 77. 133 Nowak, supra note 22 134 Sürek. v Turkey (no. 3), 8. 7. 1999, (not yet published), para. 40. 135 Sürek v. Turkey (no 1) [GC], 8. 7. 1999, RJD 1999-IV, para. 62. These were letters to the editors from readers not the writings of professional journalists.

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THE CONTESTED NOTION OF FREEDOM OF OPINION destruction of the rights of others. In such cases136 Article 17 would not permit media owners to order journalists to spread ideas, which are discriminatory to sections of society. Article 17 is relevant when the subjective aim of expression is the degradation of others. Article 17 states: “Nothing in the Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or their limitation to a greater extent than is provided for in the Convention.”

The way minorities, immigrants, ethnic groups and even women are portrayed in the media, has a significant influence on public opinion. Although the media constitute an important means of combating racist and xenophobic views, prejudices and preconceived ideas, they can also have a role in the emergence or strengthening of such views.137 One of the most complex dilemmas in international human rights law and public policy is how to protect minority groups from the harm, both direct and indirect caused by hate speech.138 Speech that expresses racial hatred or degrading attitude toward women is seen by many as too much freedom at the cost of the dignity of others.139 Others say that tolerating such speech, albeit hateful and degrading, is the high, “sometimes, nearly unbearable cost of freedom”.140 Making it a criminal offence to impart such speech is accordingly seen as constituting a chilling effect on journalism, deterring journalists from mediating matters of public interest. Hate speech is a form of expression that denigrates the value and worth of its victims and the groups to which they belong. It is the cause of much agitation if media presentation of racial prejudice is infringing the dignity and rights of others or if an indictment on grounds of such speech contravenes freedom of expression principles. Those who claim the latter maintain that attempts to control racial hate speech aim to impede political speech airing controversial views. A pragmatic reasoning against suppressing hate speech in the public sphere is that such measures may cause more harm than good, as racism may burst out in a different way, in the 136

Application nos. 8348/78 and 8406/78, Glimmerveen and Hagenbeck v. the Netherlands, Commission’s decision 11. 10. 1979, DR 18, p. 187. 137 Parliamentary Assembly Report of the Committee on Migration, Refugees and Demography (Rapporteurs Mrs. Aguiar and Mr. Vasquez) Assembly debate on 30 June 1995 (24th Sitting). Doc. 7322. 138 Cf., J. Cooper and A. Marshall, ‘Hate Speech, Holocaust Denial and International Human Rights Law’, 6 E.H.R.L.R. (1999) p. 593. 139 Hate speech is usually perceived of as referring to speech containing racial hatred but is applicable to any form of expression which denigrates the value of others, such as misogynists’ views directed at women or hatred of homosexuals (homophobia) and others who suffer discrimination in modern societies. 140 R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press, Oxford, 1996) p. 226.

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HERDÍS THORGEIRSDÓTTIR form of physical violence. Such reasoning says that exposing racism in the media may be crucial for the public interest as it bears on the political process. Furthermore, that the answer to hateful and degrading speech is more speech to overbear the prejudices. However this view does not take into account the silencing effect, which actuates the inferiority complex of those who suffer it and hence works to the opposite. Instead of eliciting response it silences and kills initiative – with long-standing consequences. Stereotyping on the basis of race, ethnicity or sex need not be defamatory but it is certainly discriminatory. A sensitive balancing act is required in weighing up the individual’s right to freedom of opinion and expression against the rights of groups and minorities not to be discriminated against. The right to non-discrimination may involve prohibiting hate speech as a right to equality of concern and respect. Invective directed against minority groups and racist speech in general may create fear of physical violation, exclusion and subordination. Harmful speech is hence plausibly antithetical to political equality, which is a precondition for an ‘effective, political democracy’, the stated objective of the Convention. In many of the member states of the Council of Europe racist speech is a criminal offence, even though the Convention does not contain a free standing right not to be discriminated against on the grounds of race. The new Protocol 12 to the Convention requires that “the enjoyment of any right set forth by law shall be secured without discrimination”.141 Article 14 on the other hand relates solely to rights set forth in the Convention. A measure, which in itself is in conformity with the requirement of, for example, Article 10 may be a discriminatory restriction all the same, when read in conjunction with Article 14.142 The impact of racial hate speech both on race relations and on specific target groups has long been recognized and there are already a number of initiatives aimed at combating racism. The new Protocol 12 to the Convention is intended to give greater protection and equality rights. The impact of degrading speech, as an obstacle to equality has gotten less attention, albeit pointed out by some feminists and academics, especially in the United States,143 that such speech – ranging from 141

Agreed 26 June 2000 by the Committee of Ministers, open for signature on 4 November 2000 and requires ten ratifications for entry into force; the list of grounds constituting unlawful discrimination in Article 1 of the Twelfth Protocol are the same as in Article 14 of the Convention. Two expert groups were the contemporary forces behind this Protocol. The Steering Committee for equality between women and men proposed the inclusion of a fundamental right of women and men to equality in the Convention (on the grounds that this was one of the prerequisites of acquiring de jure and de facto equality). The European Commission against Racism and Intolerance, also recommended the drafting of a an additional Protocol containing a general prohibition of discrimination on the grounds of race colour, language, religion or national or ethnic origin. Cf., A. Mowbray, Cases and Material on the European Convention on Human Rights (Butterworths, 2001) p. 619. 142 Application no. 4045/69, X v. the Federal Republic of Germany, ECHR Yearbook XIII (1970), p. 698 (704–706). 143 Mackinnon, supra note 129; F. Michelman, ‘Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation’, 56 Tennessee Law Review, No. 292 (1989), pp. 303–304.

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THE CONTESTED NOTION OF FREEDOM OF OPINION pornography to stereotyping women in the media – may itself be ‘silencing’ so the outcome is to prevent individuals from exercising their right to express themselves. An individual’s dignity hinges on not being discriminated against by the media to the extent that it affects his self-esteem through an unfair portrayal by the media of groups in society. Self-esteem refers to an individual’s sense of goal and life-plans, of being worthwhile and that one has talents and other characteristics sufficient to make their accomplishment possible.144 Loss of self-esteem might therefore constitute harm because it reduces motivation and willingness to put forth effort. If victims of hate speech feel that they have fewer opportunities due to media coverage of them or their ‘likes’, they have been caused harm. Hate speech has the cumulative effect of reducing self-esteem.145 What constitutes harassment is not a subjective view of the one accused of it but an objective evaluation of the coverage if it helps to perpetuate the view that a certain group – due to race, wealth, sex or other status – is superior to others, and should have control for that reason. 7. The Chilling Effect of Punishment and the Silencing Effect of Tolerance Is freedom of expression important enough for sacrifices that really hurt? The two approaches taken here, the chilling effect and the silencing effect, reflect two schools of thought with regard to journalism. The Court refers to the chilling effect when it considers it necessary to protect journalists in doing their job.146 The Court has, however, not used the term ‘silencing effect’, which does not merely depict subordination but is subordination because of its harmful effects. Catherine MacKinnon takes the example of the epithet ‘nigger’ and the fact that the disproportionate numbers of children who go to bed hungry every night in the United States are African-American.147 Pornography is seen as an aspect of dominance like racial hate speech.148 From this standpoint sexist or racist journalism constitutes an act of injury – discrimination – rather than ‘merely’ harmful speech. The chilling effect is recognition in the case law that journalism may become tepid out of fear of legal sanctions. The silencing effect concerns the impact of discriminating journalism on minorities, not only numerical ones. An example is misogynist journalism, which may enhance male dominance and hold women down with the concurrent effect of increased violence within the domestic sphere. Racial contempt preserves an inferiority complex among large sections of society, clearly an abiding obstacle to an effective democracy. Such portrayal enfeebles the ‘political self-image’ of the groups in question by discouraging them from participation in the political process. Hence it is an act of discrimination. 144 R. Langton, ‘Sticks and Stones’, in H. LaFollette (ed.), Ethics in Practice: An Anthology (Blackwell, 1997) p. 357. 145 Ibid. 146 Cf., Jersild v. Denmark, supra note 49. 147 MacKinnon, supra note 129, p. 74. 148 Cf., ibid.; Dworkin, supra note 140; S. Fish, There is No Such Thing as Free Speech and it is a Good Thing Too (Oxford University Press, 1994) pp. 120–133.

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HERDÍS THORGEIRSDÓTTIR So insidious is the silencing effect that sometimes journalism bursting with sexism or obscenity is protected under the ‘pretence’ of serving the robust public debate, as was the case of Hustler Magazine v. Falwell before the US Supreme Court in 1988.149 The Supreme Court held that the First Amendment protects parodies – even Hustler magazine’s mock ad, which said fundamental minister Jerry Falwell’s first sexual experience was in an outhouse with his mother while she was drunk. Many saw the Falwell decision as a ringing affirmation of the principles of uninhibited, robust and wide open debate, instigated in New York Times v. Sullivan.150 However, it is questionable whether the press should breath a sigh of relief in the wake of such a decision as journalism of this kind, a paid for advertisement attacking a public figure151 – and his mother – has little to do with the much cherished robust, political debate. It is highly questionable, albeit the readers of Hustler magazine find it funny, that an ad of this kind promotes the democratic debate. Much less has such journalism to do with individual dignity. It is precisely because of such rulings, as in the case of Hustler v. Falwell, that it may be questioned if regulation of journalism that is subversive of the values of democracy should be regarded not as an exception to the principle of freedom of expression but as a fulfilment of its mandate.152 In this context Stanley Fish, discussing the Hustler v. Falwell case, says that there are worse things than life without this ‘freedom’ and some of these things the First Amendment as it is now interpreted, allows and by allowing, encourages. “If she were alive”, he quips, “you could ask Jerry Falwell’s mother”.153 Article 10 protects not only the individual right to express an opinion subject to the formalities, conditions and restrictions enlisted in Article 10 (2) but also the right not to have one’s dignity sabotaged by journalistic conduct, although the Court´s ruling in Jersild v. Denmark may indicate the opposite. 154 The case concerned the dissemination of racist remarks and the Court held that the punishment of the TV journalist Jersild for assisting in their dissemination might seriously hamper the contribution of the press in discussion of matters of public interest. Prior to this judgement many conceived of the Convention’s case law as treating racist expression akin to using defensive weapons155 and that the Convention had much 149

Hustler Magazine v. Falwell, 485 US 46 (1988). Teeter et al., supra note 44, p. 370. 151 Reverend Jerry Falwell was a candidate for President of the United States. 152 Justice Scalia made this observation in the Hustler case: “[t]he First Amendment is not everything. It’s a very important value, but it’s not the only value in our society, certainly… The rule you give us says that if you stand for public office, or become a public figure in any way, you cannot protect yourself or, indeed, your mother, against a parody of your committing incest with your mother in an outhouse.” Quoted in A. Lewis, Make No Law: The Sullivan Case and the First Amendment (Vintage Books Edition, 1992) pp. 231–232. 153 S. Fish, supra note 148, p. 133. 154 Jersild v. Denmark, supra note 49. 155 Applications No. 4403/70, 4423/70, 4434/70, 4443/70, 4476/70, 4478/70, 4486/70, 4501/70 and 4526/70, 4530/70, East Asian African Asians v. the United Kingdom, Commission’s report 14. 12. 1973, DR 78-4, para. 208. 150

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THE CONTESTED NOTION OF FREEDOM OF OPINION more respect for the dignity and concern for the right of minorities than the American constitutional doctrine with its commitment to the market place trading freely in competing ideas.156 The US Supreme Court confirmed in 1952 that under some circumstances groups could be libelled and that the state could bring criminal action against the libeller. The case involved a leaflet attack on the African Americans in Chicago.157 By 1992 hate crime legislation was adopted in most states in the US, usually calling for both criminal sanctions and civil penalties. In 1992158 the Supreme Court declared a ‘Bias Motivated Crime Ordinance’ unconstitutional because it prohibited permitted speech solely on the basis of the subject it addresses. Hate speech was legitimised as a form of public debate.159 Protection of reputation is not a new concept and neither is punishment for those who defame. Reputation is one’s honour in the eyes of others and thus an objective paradigm. Defamation is communication, which exposes persons to hatred, ridicule, or contempt, lowers them in the esteem of others, causes them to be shunned, or injures them in their business or calling.160 Dignity is more subjective, however, as it concerns the pride and self-esteem of an individual in his own conception. When one’s dignity is hurt in a general manner it is not as palpable as direct defamation, which is justiciable, as one can start proceedings and seek, even a high amount of, damages. It is difficult to accurately define the characteristics of an offence on the dignity of a group of people. An injury on human dignity via opinion formation is not “a wrong which directly results in the violation of a legal right” to quote US justice Frankfurter from another context.161 The theory favouring absolute protection warns against the slippery-slope hazard meaning that once content regulation starts there may be no end to it.162 What this view does not take into account is what Mill warned against almost one and a half centuries ago- that the oppression of individuals and views in society does not merely occur in civil punishments but in the privileging of powerful groups and viewpoints. Mill spoke of “social tyranny” more formidable than many kinds of political oppression.163 The inclination was to stress the power of society over the individual.164 As a 19th century ‘feminist’ Mill would have been dismayed with the power of the fashion industry over the female image at the dawn of the 21st century appearing in the widespread syndrome of anorexia, which results in the deaths of 156

A. Lester, ‘Freedom of Expression’, in R. St. J. MacDonald et al. (eds.), The European System for the Protection of Human Rights (Kluwer Law International, 1993) p. 473. 157 Beauharnais v. Illinois, 343 US 250 (1952). 158 R.A.V. v. St. Paul, 505 US 377 (1992). 159 Teeter et al., supra note 44, p. 77. 160 Ibid., p.140. 161 Anti-Fascist Committee v. McGrath, 341 US 123. Justice Felix Frankfurter’s concurring opinion, pp. 149–174. 162 MacKinnon, supra note 129, pp. 75–76; Cf., F. Schauer, Slippery Slopes, 99 Harvard Law Review, 361 (1985) pp. 75–76. 163 Mill, supra note 93, p. 7. 164 Ibid, p. 17.

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HERDÍS THORGEIRSDÓTTIR thousands of young women every year. A modern feminist view on this syndrome is that it is a means to maintain the unequal distribution of power in society. Constant fashion coverage is oppressive to the political self-realization of women, who are preoccupied with starving themselves to measure up to the fashion standards while men retain their social dominance. 8. Conclusion: A Media Practicing (In)Equality? Of interest in Jersild v. Denmark is that the case touches upon the negative requirements made to the press, the ‘faux-pas’ dilemma and its direct and manifest effects, which, as in this instance, led to the prosecution of the TV reporter.165 The Court decided in favour of journalism to avert the chilling effect of legal sanctions conducing to self-censorship within the media. There is another side to journalism, which in a subtle way may go unnoticed even though it is practiced on a regular basis, although it need not be intentional. This is discriminating journalism. Debasing a rape victim on the front page of the largest newspaper in Austria166 is not only humiliating for the victim in question but may have extensive and enduring silencing effect on women. The media is a powerful institution in society in shaping public opinion. The media practicing inequality has a silencing effect on large sections of society with contingent consequences for the political process. It affects the way men understand women and how women perceive of themselves. It discredits them in their own eyes as political beings. This type of media behaviour is hardly contested in a court of law – unless it elicits a response, which may be punishable and draws attention to what provoked it in the first place. De facto equality requires that media practices of this kind be eliminated but not necessarily by content regulation. The prohibition of using certain speech based on sex, race, ethnicity or opinion is impossible, impractical and even undesirable. “The character of every act depends upon the circumstances in which it is done.”167 as Oliver Wendell Holmes pointed out in 1917. The contextual approach has been increasingly acknowledged by the European Court of Human Rights in recent years.168 This article has attempted to construe the negative requirements of the press, e.g. the restrictions that in the Convention’s case law have come to define the boundaries that journalism is not to overstep in order to protect dignity and the right to form an opinion. This brings into focus that it is not necessarily the noticeable acts transgressing the law that shape our views of ourselves and society – but rather the media’s performance on day to day basis that gradually depicts a picture of reality and the external world that becomes a frame of reference, not only for political outlooks but in the shaping of one’s self-image in this context. 165

Jersild v. Denmark, supra note 49. Application no. 20915/92, Commission’s report 3. 3. 1995. 167 Schenck v. United States, 249 US 47 (1919), 52. 168 Cf., Ceylan v. Turkey [GC], 8. 7. 1999, joint concurring opinion of Judges Palm, Tulkens, Fischbach, Casadevall and Greve, RJD 1999-IV, 44. 166

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THE CONTESTED NOTION OF FREEDOM OF OPINION With regard to morals, the Court’s case law has been criticized for not exhibiting the values it preaches, e.g. “pluralism, tolerance and broadmindedness”. The prerequisites of democratic society such as the above-mentioned values “work both ways”.169 Opposite the widespread and powerful media the ‘defenceless’ are inferior. Victims of hate speech, prejudice, sexism and other discriminating conduct are not in a position to oppose or even repair the damage received. The Court has by now given its view on the chilling effect of punishing journalists, which may result in self-censorship within the media to the detriment of the public interest. Article 10 case law has, however, not yet provided an answer to the dilemma of the silencing effect – although the soft law of the Convention mechanisms would denounce journalism demeaning individuals and groups in their social esteem. There are many wolves wrapped in the cloth of freedom of the press principles. One is that prohibiting pornography and racism, much debated – in particular in US jurisprudence – leads one down the ‘slippery slope’ where once there is regulation of some speech there is no end to it. Given the danger of going down the regulatory road it is safer never to begin. This view accentuates that the answer to speech that may have harmful real-world effects is more speech rather than content regulation. According to Justice Brandeis in his famous opinion in the 1927 US Supreme Court decision in Whitney: “The remedy to be applied is more speech, not enforced silence”.170 In principle this argument is loaded with common sense. However it must be kept in mind that economic and social disparities exclude the ‘defenceless’ from combating the effects of injurious speech by additional speech. At the dawn of a new millennium, with new dimensions in rights-thinking from the perspective of minorities, it seems rather conclusive that the consequences of discriminating journalism are more likely ‘enforced silence’ than remonstrance. Starting from the proposition that all individuals have an equal right to respect and concern where individual rights enjoy a strict priority over collective goals, socio-economic interests and utilitarian considerations, is a valid perspective. The Convention is, however, based on a collective goal of an ‘effective political democracy’ and the ‘further realization of human rights’. This means that the individual right to speak one’s mind is restricted when the rights and reputations of others are at stake. When dignity of individuals and groups is attacked with disesteeming journalism the danger is that prejudiced and preconceived ideas can also have a role in the emergence or strengthening of such views.171 Line drawing in content regulation is not a feasible choice. Such line drawing may, however, be taking place with discriminating journalism if it does not meet with resistance – which appears to be the case with the ‘defenceless’ who on account of this type of journalism have less self-esteem and no strength to reply. One scale is sure to go up 169

Otto-Preminger-Institute v.Austria, supra note 76, joint dissenting opinion of Judges Palm, Pekkanen and Makarczyk, p. 24 (6). 170 Whitney v. People of the State of California, 247 US 357, (1927) p. 377, quoted by Judge Bonello in a separate concurring opinion Ceylan v. Turkey, 8. 7. 1999, RJD 1999-IV, p. 73. 171 Doc. 7322 Assembly debate on 30 June 1995, report of the Committee on Migration, Refugees and Demography.

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HERDÍS THORGEIRSDÓTTIR and the other down if standing antagonisms of practical life are not expressed with equal freedom, and enforced and defended with equal talent and energy as Mill cautioned.172 If minorities are not empowered and the basis of the present social hierarchy, reflected in control of the media, altered – there will be no strenuous criticisms of prevailing opinion, only enforced silence. Judge Schermers said in a dissenting opinion, as a member of the Commission, in a case of the seizure of a blasphemous film in Austria that: “One is free not to believe in God, but if one does not believe in God one cannot make a film about him”.173 This view does not reflect a principle of content neutrality174 as in American legal doctrine. According to this view, the state may control access to information and ideas if it perceives of some ideas as affecting the freedom of others. From Judge Schermers standpoint, mutatis mutandis, racially prejudiced and sexist individuals are not to be in charge of the public debate. He has a point there. Article 10 case law links the protection it provides with the objective of dignity and democracy, individual self-fulfilment and public interest. However, there is no such thing as unregulated speech. Article 10 has a purpose and in light of that purpose some contested speech must be tolerated while expression subversive of Article 10 values is not to be tolerated. The conclusion of this article concerning content regulation, opinion formation and human dignity is that the balancing approach used by the Convention authorities would confirm what Stanley Fish says is a rule of thumb: “Don’t regulate unless you have to”.175 Or in the words of another famous American First Amendment scholar: “Honour the counter values”.176 These phrases taken together are reflective of the Court’s case law so far. Inherent in Article 10 (2) are potential restrictions providing basis for legal safeguards in domestic legislation but such measures must be kept in harmony with the principle of “pluralism, broadmindedness and tolerance”. The demands of pluralism, tolerance and broadmindedness without which there is no democratic society, exclude strict content regulation. Sanitizing speech violates the principle of freedom of expression. Instead, as the Court has reiterated, it is borne out of the wording itself of Article 10 (2) that whoever exercises the rights and freedoms enshrined in the first paragraph of that Article undertakes ‘duties and responsibilities’ and among them to take care in the presence of others. Journalists are to avoid offensive portrayals, which may hurt others without contributing to any form of public debate capable of furthering progress in human affairs.177 An elaborate and professional journalism is essential to the objectives of democracy and human dignity. The remedy is thus not to prohibit the exposure of certain views and 172

Mill, supra note 93, p. 55. Otto-Preminger-Institute v. Austria, Commission’s report 14. 1. 1993, dissenting opinion of Mr. Schermers, Series A no. 295, p. 37. 174 O. M. Fiss, Irony of Free Speech (Harvard University Press, 1998) p. 21. 175 Fish, supra note 148, p. 130. 176 H. Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (Harper & Row, New York, 1988) p. xxii. 177 Otto-Preminger v. Austria, supra note 76, para. 49. 173

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THE CONTESTED NOTION OF FREEDOM OF OPINION opinions – but to make sure that when they are carried forward in the public sphere, independent of their substance, their conveyance is not discriminating. Such journalism entails not dishonouring the dignity of others on the basis of qualities that cannot be attributed to anyone in particular or altered by the ones that they characterize.

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? THE LEGACY OF RAOUL WALLENBERG IN THE CONTEMPORARY ASYLUM DEBATE Gregor Noll* 1. Introduction: The Janus Face of the Access Crisis Academics, governments in affluent states and human rights lawyers seem to agree: refugee law is, as so often, in a crisis. This crisis is all about access. Access means different things to different people. Some identify the 1951 Refugee Convention as part of the cause of the access crisis, obstructing the effective enforcement of migration control. They invoke what is said to be ‘rising’ or ‘high numbers’ of asylum applications (with the basis of comparison rarely being made explicit), which would be the symptom of an all too liberal access regime. Others blame indiscriminatory migration control regimes and specify that the crisis of access is indeed a crisis related to the seeking of asylum: corpses of asylum seekers washing ashore at Italian, Spanish and Portuguese shores testify to its existence. Seen as such, the access crisis is caused by restrictionism rather than excessive liberalism. The access crisis is Janus-faced. From a governmental perspective, the crisis of seeking asylum is about asylum seekers circumventing ever more sophisticated measures of migration control and continuing to arrive on state territory to do just that: seek asylum. For would-be refugees, the perspective is a different one: where states prevent migration, they prevent access to asylum as well. In the meantime, human smugglers bridge the widening gap between migration prevention policies and the territorial asylum offers in domestic legislation. Yet access to smuggling costs money and presupposes the acceptance of high risks by migrants. In Europe, domestic debates are mostly engaged with the ‘inhumanity’ or ‘softness’ of asylum systems towards applicants who have already arrived. Few observers ask questions about those who have not. After all, the combination of migration control and human smuggling has selective effects. The well-connected, affluent and strong might make it to the North, the others stay put. Amongst them will perhaps be those most in need of protection. As the non-governmental organizations (NGOs) assisting refugees have focussed on how asylum seekers are dealt with inside Europe, denial of access has long been on the fringes of their issues. NGOs could also have been more vocal on the class stratification brought about by human smuggling, where protection is a commodity sold to a middle class of protection seekers. Unsurprisingly, government officials saw their chance and used the spectre of the human smuggler to legitimise further restrictions to the seeking of asylum.1 * LL. D., Associate Professor of International Law, Lund University. I would like to thank Ms Jessica Fagerlund, LL M, for her valuable research assistance in relation to Section 3. 237

GREGOR NOLL 2. The Plan Economy of Resettlement Yet are we really faced with a dilemma? Is effective migration control per se inimical to the seeking of asylum? Do we have to choose between a libertarian practice of free migration, with all its consequences for the sustenance of welfare states, and the status quo of rigid migration control, sacrificing asylum seekers to uphold the personal limitations of our societies? Not so. Migration control can very well be selective, and open legal avenues for persons in need of protection. Selective and discerning migration control is certainly no new phenomenon. It has been practiced for decades, mainly in the framework of resettlement programmes. However resettlement has two major drawbacks which makes it unfit as a response to what has been termed the ‘asylum and access challenge’.2 Firstly, resettlement is about policy rather than law. It is about inviting individuals in need of protection rather than entitling them to access protection. Secondly, its quantitative contribution to refugee protection is minuscule, with less than 0.1 per cent of the world’s refugees being protected through resettlement.3 Indeed, resettlement should be rightly termed a plan economy of protection, and it shares the inadequacies of plan economies in general. As it is currently structured, resettlement cannot possibly match demands for protection with offers. It offers individuals statistically bad odds in a gamble for protection. If we study the behaviour of wouldbe refugees, illegal migration seems to remain the better choice for those who can afford its costs. Illegal migration is structured as a market, whether states like it or not.4 Access to protection needs to be bought via human smugglers, with prices set by the difficulty in delivering the service asked for. States can intervene in this market by restrictive legislation. This will push up prices. Theoretically, states could close down the market with harsh and draconian border defense policies, reminiscent of 1

The so-called UK proposal drew heavily on the argument that the distribution of resources in the global refugee protection system was starkly unjust. However, the proposals of erecting so-called ‘regional processing areas’ would come at a greater expense than territorial protection in the North, and thus be inherently unfit to optimise resource distribution. See G. Noll, ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, 5:3 European Journal of Migration and Law (2003). 2 ECRE/USCR, Responding to the Asylum and Access Challenge. An Agenda for Comprehensive Engagement in Protracted Refugee Situations (London/Washington D.C. 2003). 3 In 2001, a total of 92,260 resettlement arrivals were registered by UNHCR. The size of the global refugee population was at 12.0 million persons in 2001, and the total population of concern to UNHCR was at 19.8 million. UNHCR, Statistical Yearbook 2001. Refugees, Asylum-seekers and Other Persons of Concern – Trends in Displacement, Protection and Solutions (UNCHR, Geneva, 2002) pp.19 and 60. 4 Apparently, the idea of personal sovereignty makes it difficult to concurrently think of immigration as a market mechanism. Given that there is no perfect exercise of sovereignty in the real world, there is nothing inherently contradictory in conceiving immigration as concurrently subject to sovereign regulation and non-state market forces.

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? the Iron Curtain and similar arrangements. In practice, they cannot: this would imply the concurrent abandonment of their character as liberal democracies. If illegal migration is indeed a market, the plan economy of resettlement alone can hardly be an adequate tool to diminish its attractions. This is why radical initiatives such as Australia’s so-called Pacific Solution or the UK proposal on regional processing centres combine the plan economy of resettlement with a draconian prevention of immigration. However the harshness of the latter is violative of international law5 and would thus cast doubt on how serious its agents are about the values typically associated with liberal democracy: respect for the rule of law and for human rights as well as transparency in and judicial control of public administration. This is not to make the point that states should abandon the traditional techniques of implementing personal sovereignty and deal with immigration and the seeking of asylum as markets only. However, the ideological contradiction is striking. While the efficiency of state governance has been called into question in many areas of public policy, and a wave of deregulation rolled through a couple of areas relevant to international relations, migration has taken the opposite path and is being ever more densely regulated, albeit its enforcement is increasingly subcontracted to private actors. The emergence of resettlement in the discourse of governments is indicative of this phenomenon. It raises the question of coherence. If we do believe that individuals know best what is good for them (as liberals teach us to do) and that state planning alone is not the best way of coordinating individual preferences (as free market proponents tell us), why should we suddenly embrace resettlement as a protection solution? Because states like its suggestion of controlled numbers? Because it brings work for international institutions as UNHCR and IOM? To avoid misunderstandings: resettlement is an important contribution to protection, well worth of being refined in selection and enlarged in capacity. However, neither governments nor refugee advocates should mistake resettlement for a silver bullet. At best, it may complement a response to the access crisis, but it is not a response to that crisis in itself. 3. The Legacy of Protective Passports While the last five decades of refugee discourse pivoted around the three solutions of voluntary repatriation, local integration and resettlement, the history of protection is so much richer. It is striking that the protective techniques practised during the Second World War are little discussed, although they are clearly of relevance to our contemporary discourse. On an overarching level, there are important analogies between the current situation and the protection crisis during the Second World War. As today, forced migration during the Second World War was characterised by a crisis of access. Armed conflict itself blocked migratory moves, and immigration 5

For an analysis of the legal implications of transit processing centres and regional processing centres, see Noll (2003), supra note 1. For an analysis of the Pacific Solution, see Human Rights Watch, ‘By Invitation Only’: Australian Asylum Policy, (New York, December 2002).

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GREGOR NOLL regimes were gradually tightened, preventing those in need of protection from reaching safety. Visa regimes were fine-tuned to keep refugees out, as the practices of Sweden and Switzerland illustrate.6 However, the extermination of the European Jewry during the Second World War as well as Nazi persecution of political opponents brought about significant counter-strategies by foreign diplomats and embassy staff in a number of cases. Best known is perhaps the example of Swedish diplomat Raoul Wallenberg, who served at the Budapest legation in the critical end phase of the German occupation of Hungary. Already before Wallenberg’s arrival in Budapest, staff at the Swedish embassy and the Swedish foreign ministry had issued visas and other documents intended to shield their holders from persecution. Levine has mapped the interaction between actors and structure behind this historical endeavour, and launched the concept of ‘bureaucratic resistance’ to describe the role of protectors assumed by civil servants.7 This effort was backed up by the Swedish government, and reinforced substantially with the arrival of Raoul Wallenberg, who contributed the idea of ‘protective passports’. With the support of the Swedish government, he saved thousands of Hungarian Jews from falling victim to persecution by German occupants and members of the Hungarian Arrow Cross Movement. Wallenberg and his colleagues issued documents which shielded their holders – at least temporarily – from harm by persecutors. Their protective power rested on the implication that the carrier was a presumptive Swedish citizen on his or her way to Sweden.8 As actual emigration to Sweden was impossible for Hungarian Jews in 1944 due to the effects of war and occupation in Central Europe, the willingness of Sweden to deliver on its promise of presumptive citizenship was never fully tested in reality. However this in no way detracted from its value. At the very least, the Swedish authorities endorsed the use of these novel instruments although parts of the domestic debate in Sweden was inimically disposed towards refugees, and an actual immigration of Hungarian Jews in the thousands might have resulted in a refuelling of anti-Semitic sentiment in Sweden. Hence, the diplomats and civil servants involved – including the Foreign Minister – indeed took professional risks when assisting those who sought the protection of the Budapest Embassy. In May 1944, the Hungarian government was considering whether it should allow all ‘foreign Jews’ to be repatriated to the countries claiming them, which raised the question of the actual value of presumptive citizenship. The Swedish Foreign Office was asked by the legation whether it was prepared to accept “Swedish Jews… and

6

G. Noll, Negotiating Asylum. The EU Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff Publishers, The Hague 2000) pp. 3–4. 7 P. A. Levine, From Indifference to Activism. Swedish Diplomacy and the Holocaust; 1938– 1944 (Acta Universitatis Uppsaliensis, Uppsala, 1996). 8 “The passport stated that the holder was to go to Sweden within the framework of repatriation authorized by the Swedish Foreign Office, and until departure, the carrier and his property were under the protection of the Swedish legation.” H. Rosenfeld, Raoul Wallenberg (Holmes & Meier, New York, 1995) p. 34.

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? also other people with a close connection to Sweden?”9 It gave an unambiguous positive response.10 Did Sweden issue protective documents to anybody asking for them? Most certainly, such a liberal attitude would have quickly depleted respect for the documents. Therefore, the Swedish legation operated a procedure for processing claims, which was based on Wallenberg’s written instructions to the decisionmakers. In September 1944, affirmative decisions were limited to applicants proving family relations, business connections or membership in the cultural and administrative elite, on condition that the latter provided “something outstanding for Sweden”.11 Thus, the beneficiaries were defined in a detailed manner, inspired by both communitarian and utilitarian ideas. It is reported that until 15 October 1944, 8,000 applicants were dealt with under the procedure, and, out of those, “more than 3,500 applicants” received a protective document.12 The Swiss legation in Budapest took upon itself a critical role in a similar arrangement. Firstly, Switzerland took over the interests of El Salvador, and, after lengthy negotiations with the Hungarian government, was allowed to grant documents giving its holder the status of “citizen of El Salvador”.13 Secondly, in its role as representative of British interests, the Swiss legation assumed the role of issuing certificates to those Jews who had been granted entry into Palestine. While actual emigration was again blocked by the German occupation, the Swiss consul amplified the protective effect of the certificates by issuing legitimations to its holders, which stipulated that its bearer was under the protection of the Swiss legation until such time that the journey to Palestine could begin.14 Again, these 9

Letter by the Budapest legation to the Swedish Foreign Office, quoted by Levine, supra note 7, p. 270, note 96. 10 Levine, supra note 7, p. 270, text accompanying note 97. 11 The instructions were remarkably detailed and also contained rules on evidence. They are reproduced in J. Lévai, Raoul Wallenberg. His Remarkable Life, Heroic Battles and the Secret of his Mysterious Disappearance, (White Ant Occasional Publishing, Melbourne, 1988) pp. 81–2. However, not meeting the requirements did not necessarily mean being denied protection by the Swedish representation in Budapest. The representation sent applicant’s names to the Foreign Ministry in Stockholm, which returned them split up in two categories: one featuring persons with stronger links to Sweden, the other those with weaker links. Apparently, no names were struck out from the list, and listing persons with ‘weaker links’ did not amount to an instruction to the embassy staff not to deal with those cases. Personal interview with Paul Levine, 3 September 2002. An official report by a SwedishRussian working group researching Raoul Wallenberg’s Budapest activities and his disappearance confirms that protection was gradually extended, and comprised a much larger group than those having close connections to Sweden. Given that the financing of Wallenberg’s operations stemmed from US sources, there is logic to this broad approach. Utrikesdepartementet, Raoul Wallenberg. Redovisning från den svensk-ryska arbetsgruppen (Fritzes, Stockholm, 2000) p. 35. 12 Lévai, ibid., p. 83. 13 Rosenfeld, supra note 8, pp. 33–4. 14 Ibid.

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GREGOR NOLL efforts must be appreciated against the backdrop of Swiss refugee policy before the war, which produces an image full of contradictions and incoherence.15 Similar protective techniques were used by other diplomatic representations in Hungary.16 The estimated numbers of persons saved through these efforts are considerable, one quote for the Swedish rescue activities in 1944 being some fifty thousand persons.17 Levine’s detailed study refrains from estimates, and points to the fact that quantification would require a research effort in its own right.18 The Swedish and Swiss approaches exploited the fact that German and Hungarian authorities still respected the minimum protective standards it owed to aliens of neutral states being diplomatically represented in Hungary. The ‘protective passports’ and similar documents played a subtle game with this lacuna in the system of annihilation, stretching the concept of citizenship to its very extremes and beyond. These practices indicate once more that state protection is not a simple binary affair, where citizens are in, and aliens are out, but that shades, nuances and moving margins are crucial to the history of the concept – even outside the territory of the protecting state. However, protection needed not go as far as extending a presumptive citizenship through a protective passport. There are other examples, where the use of visas was sufficient to facilitate emigration. Japanese diplomat Chiune Sugihara issued transit visas to Lithuanian Jews threatened by persecution during the German occupation of the Baltics in 1940. Such visas were a precondition for its holders being able to cross the Lithuanian-Soviet border.19 In the same year, Portuguese diplomat Aristides de Sousa Mendes issued Portuguese entry or transit visas to Jews and other persecuted persons fleeing the threats of seizure after the French defeat. De Sousa Mendes acted contrary to express instructions by the Salazar government, who ordered his immediate recall and dispatched two emissaries to escort him home. His rescue efforts led to his dismissal. In 1988, he was fully rehabilitated by the Portuguese National Assembly.20 These examples add another aspect to the mosaic of paperwork protection, giving the term ‘bureaucratic resistance’ a sharper edge. De Sousa Mendes not only resisted the persecutors’ project of extermination, he also resisted the insulative policies of his own government. 15

In this context, one should recall that the Swiss government had struck a deal with Germany in 1938 to the effect that the passports of German Jews be stamped with a ‘J’, making it possible for Swiss border police to turn back would-be Jewish refugees, while maintaining visa-free travel for non-Jewish Germans. For an overview with further references, see Noll, supra note 6, pp. 2–4. 16 Rosenfeld, supra note 8, p. 37, naming efforts by the Portuguese chargé d’affaires Carlos de Lix-Texeira Branquinho and by Spanish chargé d’affaires Miguel San-Briz. 17 Rosenfeld, supra note 8, p. 37. 18 Levine, supra note 7, p. 277, note 127. 19 D. Eagleman, The Sugihara Project, available at <www.eagleman.com/sugihara/sugimain. html> visited on 31 August 2001. 20 Entry on Aristides de Sousa Mendes, in Encyclopaedia of the Holocaust (Macmillan, New York, 1990).

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? What is to be learned from these rescue attempts? First, there is an interesting correlation between non-access policies stopping flight attempts and diplomatic activities. When diplomats tried to help, regular emigration had long become impossible. Before the war, and in the wake of the 1938 pogroms in Germany, all important destination countries were limiting their reception of refugees or even sealing off their borders.21 The outbreak of the war meant additional hurdles to the movement of persons, and, at the same time, the proper extermination of Jews began. In other words, the desperate rescue attempts of diplomats came at a stage when access to protective territories had been long blocked, and refugee policies had turned into anti-immigration policies. The memory of this failure should inform policy choices even today, where access to protective territories is regularly blocked by would-be states of asylum. Secondly, the examples show how many lives can be saved through the powers diplomatic representations actually enjoy even in the most desperate of situations. All of these examples put the role of the decision-maker at the diplomatic representation in the limelight. The Swedish selection instructions illustrate that this does not mean complete discretion or arbitrariness. On the contrary: rescue efforts imposed a selection of beneficiaries by diplomats, and, to that effect, a set of rules and procedures was developed in a very tense and difficult work situation. This heritage could be well administered, if future policies would transform this exceptional endavour into an everyday practice – as rule-governed, predictable and transparent as possible. On the other hand, reliance on rules should not obscure the fact that the single decision-maker remains central to the process of protection and rescue. Any future scheme for facilitating territorial access to refugees should take this experience into account, and entrust sufficiently trained and experienced persons with this crucial role. Finally, it might be relevant to recall how much contemporary constructions of European identity owe to persons as Raoul Wallenberg and Aristides de Sousa Mendes. Yet merely celebrating them as hero personalities ultimately risks diverting attention from the ethos that Europe now claims as its own.22 Against this background, the significant heritage of protective passports and transit visas needs to 21

By way of example, the Swedish National Board of Health and Welfare (Socialstyrelsen) sent out a circular in 1938 to the effect that holders of German passport stamped with a ‘J’ were not to be admitted to Sweden, save for cases in possession of a residence permit or a ‘border recommendation’ (gränsrekommendation). Border recommendations were only available in cases where return to Germany was deemed unproblematic. See Statens Offentliga Utredningar (SOU) 1967:18, p. 160. For a detailed account, see H. Lindberg, Svensk flyktingpolitik under internationellt tryck 1936–1941, (Allmänna Förlaget, Stockholm, 1973), pp. 123–80. 22 Another line of argument is that it is precisely the heroic nature of single personalities that relieves us from the call to act as they did. After all, heroes are exceptional, while we are living in normalcy. Raising a monument to Wallenberg testifies to this difference. Seen thus, a state pursuing the harshest refugee policies and an intense cult of Wallenberg as a hero personality would not necessarily contradict itself.

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GREGOR NOLL be transformed into a permanent element of the international system for transnational human rights protection. 4. Contemporary Transformations: Protected Entry Procedures Interestingly, certain tangible elements of the Wallenberg legacy to refugee law have been picked up in domestic refugee law and practice after the war. In 2002, six European states formally accepted asylum applications at their embassies,23 and another six allowed access to their territory for protection-related reasons in exceptional cases.24 These additional inroads into the asylum system have been sparsely used and domestic practices vary widely. On a technical level, the introduction of ‘protection elsewhere’, i.e. safe third country mechanisms referring asylum seekers to protection in transit countries, contributed to the resurfacing of this form of extraterritorial processing. After all, states relying on the safety of third countries needed to add a form of safety valve to their systems in order to meet the critique of refugee advocates. Regardless of this context, the idea of using embassies as a platform for processing asylum claims owes much to the legacy of the 1940s. Although some countries have abolished formal procedures, a countermove can be tracked at the level of the European Union. Its institutions are presently exploring new approaches to counter the access crisis, and look into extraterritorial processing under the label of ‘Protected Entry Procedures’. The notion of Protected Entry Procedures ‘is understood to allow a non-national to approach the potential host state outside its territory with a claim for asylum or other form of international protection, and to be granted an entry permit in case of a positive response to that claim, be it preliminary or final’.25 The present section shall attempt to capture this development. The Conclusions by the 1999 European Council in Tampere are generally regarded as catalysts in the development of European asylum and migration policies. They contain a clear reference to the issue of access to territory, thus sending out a strong signal on the balance between border control and refugee protection. Conclusion 3 addresses the issue, and states that for those whose circumstances lead 23 Austria, Denmark, France, the Netherlands, Spain and the UK. See G. Noll, J. Fagerlund and F. Liebaut, Study on the Feasibility Of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure (European Communities, Luxemburg 2003), available at: <europa.eu.int/comm/justice_home/doc_centre/asylum/common/asylumstudy_dchr_2002_en. pdf> [hereinafter Externalized Processing Study]. However, Austria, Denmark and the Netherlands abolished formal procedures in 2002 and 2003 due to the adoption of increasingly restrictionist political agendas. 24 Belgium, Germany, Ireland, Italy, Luxembourg and Portugal. Externalised Processing Study, ibid., pp. 169–172. 25 European Commission, Communication to the Council and the European Parliament. Towards more accessible, equitable and managed asylum systems, 3 June 2003, COM(2003) 315 final. The Communication herein endorsed the earlier suggestion of a definition made by Noll, Fagerlund and Liebaut in the Externalised Processing Study, supra note 23, p. 24.

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? them justifiably to seek access to the territory of the European Union, the Union is required to develop common policies on asylum and immigration, while taking into account the need for consistent control of external borders to stop illegal immigration and to combat those who organise it and commit related crimes. These common policies must be based on principles which are both clear to EU citizens and also offer guarantees to those who seek protection in the EU or access to it.26 The debate on externalised processing was given a new impulse by the speech of former UK Home Secretary Jack Straw at the 2000 Lisbon Conference on Asylum.27 Straw underscored the importance and potential of reception in the region, and pointed to the recent Kosovo experience as an example of how to cope with “a particularly acute situation”.28 However, many refugee advocates perceived his intervention as a further step in Western European burden-shirking. A closer look at its content, and the elaborations which Straw made on a later occasion,29 indicate that the Home Secretary’s suggestions were far more differentiated than many earlier proposals. Straw’s 2001 suggestions feature three elements: assisting countries in the region of origin, improving access to asylum for genuine refugees and dissuading those who are not refugees from benefiting from the 1951 Refugee Convention. The second element merits a full quote: “[We] must make it easier for genuine refugees to access the protection regimes of Europe and other Western States, for example by making their journeys less hazardous”.30 In developing this element, Straw focussed on resettlement schemes, and expressed his support for the endeavours of the European Commission in that area. As a whole, Straw conceived regional processing as complementary to ordinary territorial processing. However, his interventions indicated a strong concern with numbers: “Any moves towards the implementation of ideas for processing of claims overseas or substantial resettlement programmes will have to be in parallel with driving down the numbers of unfounded applications”.31 This shall not be understood to imply that an externalised processing scheme must bring down the number of spontaneous arrivals to be seen as successful. Rather, Straw sought to make clear that externalised processing must be part of a comprehensive package, which should also contain measures countering unfounded applications. 26 European Council, Presidency Conclusions, Tampere European Council. 15/16 October 1999 [hereinafter Tampere Conclusions], Conclusion 3. 27 Speech by UK Home Secretary Jack Straw at the European Conference on Asylum, Towards a Common Asylum Procedure, Lisbon 16 June 2000, available at <www.ind.homeoffice.gov.uk/default.asp?PageId=92> visited on 17 September 2002. 28 Ibid. 29 Jack Straw, An Effective Protection Regime for the 21 Century, Speech to the IPPR, 6 February 2001, available at <www.guardian.co.uk/Refugees_in_Britain/Story/0,2763,434341,00.html> visited on 15 September 2002. 30 Ibid., at para. 30. 31 Ibid., at para. 49.

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GREGOR NOLL An important contribution to the debate on forms and content of a Common European Asylum System was offered by the European Commission in November 2000. It adopted a Communication, which intended to signpost the way ‘Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum’.32 Under the heading ‘Access to the territory’, the Commission suggests that processing the request for protection in the region of origin and facilitating the arrival of refugees on the territory of the Member States by a resettlement scheme may be ways of offering rapid access to protection without refugees being at the mercy of illegal immigration or smuggling gangs or having to wait years for recognition of their status. This option, as the Commission sees it, must be complementary and without prejudice to proper treatment of individual requests expressed by spontaneous arrivals.33 The Commission subsequently launched two separate feasibility studies on the matters of asylum requests made outside the European Union and resettlement schemes at EU level. The Communication triggered a number of responses, and not all of them were supportive of the Commission’s strategy. The Committee of the Regions “doubted the relevance of options such as resettlement”.34 A strong signal of concern and qualified support was sent out by UNHCR. The Office pointed out that ‘the Tampere European Council’s commitment to the absolute respect of the right to seek asylum is in jeopardy if no adequate safeguards are put in place to mitigate the negative effects of migration control measures on people who need protection and are seeking access to safety in the European Union. The question of access to territory is indeed key to any asylum process…”35 The Office encouraged the further exploration of possibilities to facilitate the visa procedure in specific situations, including the delivery of “humanitarian visa [sic] to individuals who are at risk in their country of origin and in need of international protection”.36 With regard to processing in the region, the Office insisted that this should be seen as a complement to, and not a replacement of territorial processing. UNHCR’s comments are limited to regional processing as part of either resettlement or assistance to regional host countries in conducting determination procedures.37 In its 2001 Communication on the common asylum policy, the Commission again referred to the externalised processing of asylum claims in the second of five guidelines: 32

European Commission, Communication of 22 November 2000, Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum, COM (2000) 755. 33 Ibid., Chapter 2.3.2. 34 European Commission, Communication from the Commission to the Council and the European Parliament. On the common asylum policy, introducing an open coordination method, Brussels, 28.11.2001, COM (2001) 710 final, p. 27. 35 UNHCR, Towards a Common Asylum Procedure and Uniform Status, Valid Throughout the European Union, For Persons Granted Asylum, (Geneva, November, 2001) para. 8. 36 Ibid., para. 10. 37 Ibid., para. 11–13.

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? “Second guideline: Developing an efficient asylum system that offers protection to those who need it, according to a full and inclusive application of the Geneva Convention, in particular: … j. by evaluating the merits of resettlement programmes, the possibility of processing asylum applications outside the Member State, the use of cessation and exclusion clauses and the system and arrangements for transferring protection.”38

The guidelines are intended to direct the development of policy within the so-called open coordination method, structuring progress temporally and institutionally by a process borrowed from the field of social policy development. In its 2001 Communication on a Common Policy on Illegal Immigration, the Commission underscores again that “the fight against illegal immigration has to be conducted sensitively and in a balanced way”39 and goes on to state that “Member States should, therefore, explore possibilities of offering rapid access to protection so that refugees do not need to resort to illegal immigration or people smugglers. This could include greater use of Member States´ discretion in allowing more asylum applications to be made from abroad or the processing of a request for protection in the region of origin and facilitating the arrival of refugees on the territory of the Member States by resettlement scheme. Such approaches could ensure sufficient refugee protection within and compatible with a system of efficient countermeasures against irregular migratory flows.”40

When reacting to the Commission’s Communication on a Common Policy on Illegal Immigration, UNHCR took the opportunity to develop its position on visa policies further. The Office suggested inter alia the introduction of the possibility of processing asylum applications in countries of origin in cases “where the feared harm emanates from non-State agents and there is no State complicity, but the State is unable to provide the necessary protection in any part of the country”.41 During the Danish Presidency of the EU, the UN High Commissioner for Refugees recommended that embassy procedures in both countries of origin and in neighbouring countries be considered when Member States seek to address mixed flows, comprising both persons in need of protection and persons moving for other reasons.

38

Supra note 34, p. 18 European Commission, Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Immigration, Brussels 15 November 2001, COM (2001) 672 final, p. 8. 40 Ibid. 41 UNHCR, Communication from the European Commission on a Common Policy on Illegal Immigration COM(2001) 672 final. UNHCR’s Observations, Geneva, July 2002, para. 19. 39

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GREGOR NOLL “I would like to encourage you to explore new protection mechanisms nearer to the origin of refugee movements. One proposal is that EU Member States should offer opportunities for those few individuals who have a need for international protection to make asylum visa applications at embassies in their countries or regions of origin.”42

On 3 June 2003, the European Commission presented a Communication to the Council and the European Parliament under the title ‘Towards more accessible, equitable and managed asylum systems’.43 The Communication suggests that Member States should consider the introduction of Protected Entry Procedures and resettlement schemes. On 19–20 June 2003, the Thessaloniki European Council took note of the aforementioned Commission Communication and invited the Commission to present a report on the orderly and managed entry of persons in need of international protection to the EU.44 The report was to be finalised before June 2004.45 In all, observers are left with a set of divergent tendencies: at the domestic level, some states formerly offering Protected Entry Procedures have dismantled them. In a marked contrast to the recalcitrance at domestic level, the European Commission is promoting a process of reflection that might lead to the formulation of norms on Protected Entry Procedures at EC level. UNHCR as well as parts of the NGO sector46 have followed suit, and lend cautious support to this initiative. Other NGOs are wondering whether there is more to be lost than to be gained in the process, and warn that states may use the existence of Protective Entry Procedures as a pretext to justify ever harsher policies of ‘protection elsewhere’. To refocus the current debate, it might indeed be helpful to revert to the Wallenberg legacy, which also pivots around a crisis of access. 5. Conclusions Reverting to the metaphor used in the introduction of this essay, it is worth recalling that Romans revered Janus as the spirit of doorways and passages. The Janus face of 42

Statement by Mr. Ruud Lubbers, the then United Nations High Commissioner for Refugees, at an informal meeting of the European Union Justice and Home Affairs Council, Copenhagen, 13 September 2002. 43 European Commission, Communication to the Council and the European Parliament. Towards more accessible, equitable and managed asylum systems, 3 June 2003, COM(2003) 315 final. 44 European Council, Presidency Conclusions, para. 26, 19–20 June 2003. 45 On 13–14 October 2003, the Commission and the Italian Presidency of the EU coorganised a seminar where the potential of Protected Entry Procedures and resettlement schemes at EU level were discussed by Member States, representatives of international and non-governmental organisations and academics. The conclusions on Protected Entry Procedures reflect diverging views on their usefulness amongst Member States. 46 The authors of the ECRE/USCR report recommend European states inter alia to “develop a system for ‘asylum visa’ or ‘humanitarian visa’ to gradually extend the possibilities for people to obtain legal access to their territories”, supra note 2, p. 48.

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FROM ‘PROTECTIVE PASSPORTS’ TO PROTECTED ENTRY PROCEDURES? the access crisis displays numerous expressions. It holds the antinomy of individual and sovereign, of inclusion and exclusion, of plan and market and of right and grace. Resettlement alone is too one-dimensional and too limited to bring relief in this crisis. A look back at the historical access crisis preceding the Second World War and culminating after the beginning of extermination in the 1940s illustrates that long-term access policies and rescue attempts in exceptional situations must not be analytically severed, if we are to draw lessons from history for the formulation of a future Common European Asylum System. After all, Wallenberg and his colleagues attempted the rectification of a massive failure of protection by potential asylum states. The techniques used by them – the protective passports being one of the most famous – are not confined to their historical context, and should be considered again in addressing the present access crisis. The agenda pursued by the European Commission thus draws on the lessons taught by the Wallenberg legacy. Today, the EU is the right actor to transform that legacy into coherent and consistent policies on access to protection. The introduction of Protected Entry Procedures throughout the European Union would address a problem magnified by European harmonization of immigration and border control legislation. Presently, visa requirements are determined by EC law, not by domestic law. Carrier sanctions are bindingly prescribed in supranational law, and domestic legislatures are bound to follow suit. Beyond that, Protected Entry Procedures allow states to bypass human smugglers and to communicate directly with the potential migrant: dissuading those with weak claims or no claims at all, and offering documented and legal migration to those fulfilling the set criteria. Such procedures replicate the ideology of liberal democracies rather than contradicting them. Unlike resettlement, Protected Entry Procedures are not limited by fixed numerical ceilings. They are characterized by legal predictability rather than political expediency. It is to be hoped that the European Commission will succeed in engaging Member States in a serious discussion on the role of Protected Entry Procedures in the future Common European Asylum System. Indeed, this would save the memory of Wallenberg, de Souza Santos and their colleagues from being abused as decorum in a non-committal culture of commemoration. It might well be that a collective turning back to history would facilitate the passage into an ‘area of freedom, security and justice’, promised to us by Title IV of the EC Treaty. May Janus look favourably at such endeavour.

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IMPLEMENTING INTERNATIONAL HUMAN RIGHTS LAW ON BEHALF OF ASYLUM SEEKERS AND REFUGEES: THE RECORD OF THE NORDIC COUNTRIES Robin Lööf and Brian Gorlick* The work of the Office of the United Nations High Commissioner for Refugees (UNHCR) can be seen as intrinsically linked with human rights as those it helps are, by definition, victims of serious human rights violations. However it was only in the early 1990s that UNHCR began to actively cooperate with the UN human rights mechanisms through sharing information, lobbying experts and promoting complementary legal standards. UNHCR’s current involvement with UN-based human rights bodies nevertheless continues to be cautiously limited. This may be due to the fact, to cite one reason amongst many, that UNHCR has been accused of having become “highly politicised and… limited by states’ concerns regarding sovereignty”. To put it bluntly, “if UNHCR vociferously criticises states, UNHCR risks being thrown out of the country and losing its access to refugees”.1 A less dramatic occurrence is that UNHCR’s advice to states, particularly when it is critical of asylum laws and practices linked to violations of refugee protection and human rights principles, can simply be ignored. Yet another consideration is that if UNHCR expresses concern about the asylum policies and practices of key supporting states it may find itself saddled with additional political and financial difficulties when support from those same states is reduced or withdrawn.

*

Prepared by Mr Robin Lööf, BA (Law) (University of Cambridge), Maîtrise en droit (Université Panthéon-Assas Paris II) and PhD candidate (European Institute, Florence); and Mr Brian Gorlick, Regional Protection Officer, UNHCR Regional Office for the Baltic & Nordic Countries, Stockholm; MA (York University, Toronto), LLB (Osgoode Hall Law School), LLM (with distinction) (London School of Economics and Political Science); Barrister and Solicitor in Ontario, Canada. An earlier draft of this essay was presented at an Expert Seminar on Asylum and Human Rights attended by all the Nordic-based UN human rights treaty body members. The Seminar was organised by the UNHCR Regional Office and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Lund on 20 February 2003. The views expressed in this paper are those of the authors and are not necessarily shared by the UN or UNHCR. 1 Tracey Glover and Simon Russell, Coordination with UNHCR and States, (University of Michigan, December 2001). The quotation is drawn from a discussion on why UNHCR has had difficulties criticising states for non-compliance with the 1951 Refugee Convention, here applied a fortiori to the very same difficulties with alleged human rights abuses; available online at <www.icva.org>. See also Michael Barutciski, ‘A Critical View of UNHCR’s Mandate Dilemmas’, 14:2/3 International Journal of Refugee Law, (2002). 251

ROBIN LÖÖF AND BRIAN GORLICK Notwithstanding political and organisational limitations,2 in recent years UNHCR has adopted a constructive engagement with selected human rights fora. A 1997 UNHCR policy paper laid down that “UNHCR is part of the UN’s effort to promote respect for human rights”,3 and by 1998 the Office formally stated that “there is a natural complementarity between the protection work of UNHCR and the international system for the protection of human rights”.4 UNHCR has become increasingly aware that “the protection of refugees operates within a structure of individual rights and duties and state responsibilities […] human rights law is a prime source of existing refugee protection principles and structures; at the same time it works to complement them”.5 Nowadays, UNHCR is active with various human rights bodies and this paper is to be seen as a contribution to the necessary dialogue between UNHCR and the UN human rights mechanisms on how best to use the UN system to advance advocacy on refugee protection. The choice of scope for the present article is explained by the fact that the five Nordic countries6 represent a sub-region which shares a common geography, and to an extent, similar political systems and values. Moreover, the Nordic countries commonly present themselves, often rightly, as forerunners in the human rights field. A common feature in Nordic foreign and human rights policy is promoting internationalism and support for multilateral institutions, including UNHCR7. In this and other ways the Nordic states have been viewed as role models in the human rights field. For the same reason, the Nordics should arguably be receptive to criticism and recommendations from the different UN organs, including 2

As concerns structural limitations on the Office of the UNHCR, 98 per cent of UNHCR’s estimated USD 750 million annual budget is financed from the voluntarily contributions of some 12 industrialised states. The Nordic countries contribute approximately 16 per cent towards UNHCR’s annual budget. UNHCR is governed by an Executive Committee of some 60 states, several of which are not parties to the international refugee instruments and thus consider that they have no formal legal obligation to provide protection to asylum seekers and refugees. A final observation is that the refugee issue has become increasingly politicised in recent years, which has put added pressure on UNHCR to address what are in some cases extraordinary demands by states to get involved in unprecedented, large-scale operations in conflict zones as well as seek ‘solutions’ to refugee problems which would not formally require states, especially western industrialised states, to continue to receive significant numbers of asylum seekers on their territories. Indeed, UNHCR, to a greater extent than other UN human rights bodies, has to “constantly tread the fine (and at times shifting) line between being diplomatic, pragmatic and principled”. (Brian Gorlick, ‘Refugee Protection in Troubled Times: Reflections on Institutional and Legal Developments at the Crossroads’, in N. Steiner et al. (eds.), Problems of Protection: The UNHCR, Refugees, and Human Rights, (Routledge, New York and London, 2003). 3 See UNHCR policy paper, ‘UNHCR and Human Rights’, (Geneva, 1997). 4 (U.N. Doc. A/AC/96/98) para. 1. 5 Ibid. 6 To wit: Denmark, Finland, Iceland, Norway and Sweden. 7 See e.g. the Swedish government communication 2003/04:20 entitled ‘Human Rights in Swedish Foreign Policy’, available online at <www.humanrights.gov.se>.

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES the principal human rights treaty bodies and UNHCR. As we shall see, this is not always the case. In this essay, discussion of Council of Europe institutions has been intentionally excluded. Although similar and complementary legal norms are found in the corpus iuris of the Strasbourg bodies, one cannot have the same demands as to coherence between the Strasbourg institutions and mechanisms and the UN corpus, as compared to between the UN-bodies themselves. Although all the states in this study are members of the Council of Europe, the obligations incumbent upon them under this body cannot be transposed onto countries outside the jurisdiction of the Council of Europe. Therefore, the comparative value of this study may be impeded were obligations under regional human rights instruments to be addressed. The Council of Europe is not the only regional European body of interest for this study. The European Union (EU), of which three of the five Nordic countries are members8, has declared as one of its primary objectives the institution of an “area of freedom, security and justice”, an important component of which is the harmonisation of immigration and asylum procedures.9 Although attempts at harmonisation of EU asylum law and policy is destined to have a profound impact, different priorities amongst member states and questions of burden sharing have made progress slow, to the point that it is still premature to speak of a coherent EU asylum system. What this paper will survey are the main issues that have arisen before the six UN human rights treaty bodies10 in respect of the treatment of asylum seekers and refugees in the Nordic countries. In reviewing the record of these countries, the intention is to assess how well they have implemented their international human rights obligations in certain areas of refugee protection. The issues are addressed by theme rather than by treaty, as this will provide a more accurate picture of the current situation and can highlight the overlap which exists between the work of the various human rights committees. That some themes are treated at length is explained by the observation that the traditional requirements 8

The Nordic EU member states are Denmark, Finland and Sweden. Conclusions of the Tampere European Council of 15 and 16 October 1999, para. 4: “This freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration… These common policies must be based on principles which are both clear to our own citizens and also offer guarantees to those who seek protection in or access to the European Union.” Para. 5: “The aim is an open and secure European Union, fully committed to the obligations of the Geneva Refugee Convention and other relevant human rights instruments” (emphasis added). 10 The Committee on the Rights of the Child, the Committee Against Torture, the Committee on the Elimination of all Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, the Human Rights Committee, and the Committee on Economic, Social and Cultural Rights 9

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ROBIN LÖÖF AND BRIAN GORLICK of international refugee law are generally complied with in the Nordic countries. It is, for example, difficult to find evidence of flagrant breaches of the non-refoulement principle. On the other hand, this essay places considerable emphasis on the obligations of international human rights law resulting notably from the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women. These Conventions are more recent as compared to the 1951 Refugee Convention and other UN human rights treaties, and there is thus less established international practice for compliance with the obligations under these treaties. Furthermore, the Nordic countries have been particularly strong supporters and promoters of these human rights instruments. 1. Non-Refoulement Article 33 of the 1951 Refugee Convention has been described as the cornerstone of international refugee protection. Article 33 prohibits the refoulement or expulsion of a refugee to a country “where his (or her) life or freedom would be threatened on account of his (or her) race, religion, nationality, membership of a particular social group or political opinion”. Despite the fact that Convention recognition rates in the Nordic countries are comparatively low,11 this is made up by the relatively generous grant of subsidiary protection and humanitarian status which should inter alia protect against the risk that an individual may be refouled. The UN human rights treaty system has a similar non-refoulement provision in Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which states that “no state party shall expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he (or she) would be in danger of being subjected to torture”. Similarly, Article 7 of the International Covenant on Civil and Political Rights states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Concentrating on the 1951 Refugee Convention and the CAT, there is a fundamental difference between the two provisions as the latter operates without 11 Over the last few years the average Refugee Convention recognition rate for Finland, Norway and Sweden has been between 1–2 per cent, while the EU average during the same period was around 12 per cent. Denmark has been the exception amongst the Nordic countries with a Convention recognition rate in 2001 of approximately 12–14 per cent. However, with the adoption of a restrictive asylum policy and law in Denmark throughout 2002, on which UNHCR and several prominent NGOs were critical, the number of new immigrants and in particular asylum seekers arriving in Denmark has fallen sharply. Preliminary figures from the Danish Immigration Service’s annual report for 2002 show that the number of asylum seekers fell from 12,512 in 2001 to 5,947 in 2002, to some 4,557 in 2003. In addition, fewer asylum seekers are being granted permission to stay in Denmark and the number of residence permits in the asylum area has fallen from 6,263 in 2001 to 4,067 in 2002. In an effort to ‘motivate’ rejected asylum seekers to go home the Danish authorities plan to introduce a ‘lunch pack scheme’ if they will not accept the government’s offer of a repatriation package. (BBC Monitoring, 4 February 2003, report available on the UNHCR website at <www.unhcr.ch>).

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES qualifications. This means there is no need for a person to be a recognised refugee or otherwise in need of international protection for the provision to be applicable. Normally, not even provisions of ‘national security’ would warrant the deportation of a person to a country where he or she would run the risk of being subjected to torture. It is in light of this provision that the decision by the Swedish government to expel two Egyptians in late 2001 under the Special Control of Foreigners Act is to be seen. The two expellees were suspected of ‘terrorism’ in Egypt and the expulsion was executed the same day the decision was taken by the Swedish government, thus depriving the concerned individuals of any opportunity to appeal. In its 2001 annual report, Amnesty International criticised the decision of the Swedish government to expel the two Egyptians,12 and in an alternative report to the Committee against Torture (the Committee), a number of NGO’s expressed the view that “the Swedish government in this case acted in contravention with both national law and its international obligations”.13 UNHCR also expressed its concern, and in its concluding observations to Sweden’s fourth periodic report, the Committee recommended that the government “bring the Special Control of Foreigners Act into line with the Convention”.14 During the oral presentation of Sweden’s fourth report, the government representative stated that the Special Control of Foreigners Act “could not be enforced where there were substantial reasons to believe that a deported alien might suffer capital or corporal punishment or be subjected to torture”.15 The Swedish authorities claimed that the guarantees furnished by the Egyptian government that the two would not be tortured or subject to the death penalty were enough to satisfy its obligations under international human rights law. This was not the feeling of the Human Rights Committee (HRC) which went further in its criticism of the Swedish actions by concluding that there were reasons for concern regarding the situation of human rights in Sweden in connection with the international fight against terrorism.16 More recently, the Committee on the 12

‘Amnesty International Annual Report for 2001’, (Amnesty, London, 2002). ‘Alternative Report to the Committee Against Torture regarding Sweden’s Fourth Periodic Report’ (Stockholm, 2001). A thorough legal analysis of the Egyptian case is found in an unpublished Master of Laws thesis by Amelie Sällfors, Exclusion, Removal and Risk of Torture, (Faculty of Law, Lund University, Fall 2002). 14 (U.N. Doc. CAT(C(XXXVIII.CONCL.1) para. 7(c). 15 (U.N. Doc. CAT/C/SR.507) para. 21. 16 Concluding observations to Sweden’s fifth periodic report (2002), (U.N. Doc. CCPR/CO/74/SWE) para. 12: “While it understands the security requirements relating to the events of 11 September 2001, and takes note of the appeal of Sweden for respect for human rights within the framework of the international campaign against terrorism, the Committee expresses its concern regarding the effect of this campaign on the situation of human rights in Sweden, in particular for persons of foreign extraction. The Committee is concerned at cases of expulsion of asylum seekers suspected of terrorism to their countries of origin. Despite guarantees that their human rights would be respected, those countries could pose risks to the personal safety and lives of the persons expelled, especially in the absence of sufficiently serious efforts to monitor the implementation of those guarantees (two visits by the embassy in three months, the first only some five weeks after the return and under the supervision of 13

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ROBIN LÖÖF AND BRIAN GORLICK Elimination of Racial Discrimination (CERD) echoed the concerns expressed by the HRC, and called on Sweden “to reconsider this Act to the extent that it provides for the possibility of expulsion without a right of appeal and provide additional information on this issue in its next periodic report”.17 Policing state compliance inter alia with the non-refoulement principle has been made more efficient by Article 22 of the CAT, which establishes an individual complaints procedure. It has proven to be a very useful mechanism of last resort for refugee advocates. Perhaps even too much so, as reportedly the Committee receives more communications than it can handle given its limited resources. As is common in international complaints procedures the admissibility criteria include exhaustion of domestic remedies and that the same matter is not being investigated by another international body. The Committee is stringent in its application of these requirements. The two communications from Norway dealt with by the Committee to date18 were held inadmissible for non-exhaustion of domestic remedies. This seems to have been due to a particularity of the Norwegian system which provides that after the rejection of an asylum application by both administrative bodies (the Directorate of Immigration in first instance and the Immigration Appeals Board on appeal), the asylum seeker can still apply for review of the decision before a court of law. The specific problem seems to be that because the asylum seeker is first provided with a legal aid lawyer for the refugee status determination process, who may withdraw from the case after it is rejected, the asylum seeker is then left unaware that further legal aid is available for the application for a subsequent review. Since both communications filed against Norway suffered the same fate, this aspect of the system appears to be a distinct difficulty for asylum seekers. The Committee has not specifically acknowledged this point in its concluding observations, but in the case of Z.T v. Norway (2000) the Committee recommended that the state party “undertake measures to ensure that asylum seekers are duly informed about all domestic remedies available to them, in particular the possibility of judicial review before the courts and the opportunity of being granted legal aid for such recourse”.19 It is worth adding that the more complicated the procedural system, the more onerous the burden on the states parties to adequately inform asylum seekers of their procedural rights.

the detaining authorities)… The Committee also stresses the risk of violations of fundamental rights of persons of foreign extraction (freedom of expression and privacy), and in particular through more frequent recourse to telephone tapping and because of an atmosphere of latent suspicion towards them…’” 17 (U.N. Doc. CERD/C/64/CO/8) 12 March 2004, para. 15. See also Brian Gorlick, ‘The Institution of Asylum after 11 September’, in Diane Amnéus & Göran Gunner (eds.), Human Rights – From the Frontiers of Research, (Iustus Förlag, Uppsala, 2003). 18 Communication nos. 127/1999 (CAT/C/23/D/127/1999) and 121/198 (CAT/C/23/D/ 121/1998). 19 Communication no. 127/1999, U.N. Doc. CAT/C/23/D/127/1999, para 7.4.

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES With the exception of the two communications filed against Norway and another communication filed against Denmark and Finland respectively dismissed on their merits,20 all communications under the CAT filed against a Nordic state party have involved Sweden. At present, Sweden has been found in breach of Article 3 on nine separate occasions and there are several cases pending. The family members of one of the expelled Egyptian nationals discussed above also made an individual complaint, but their application was eventually turned down by the Committee.21 The reason for this high number of decisions against Sweden, as elaborated in the Committee’s decisions, would appear to be that the decision-making authorities often require a high degree of evidentiary certainty in the asylum applicant’s story. A number of cases which have come up before the Committee demonstrate that the Swedish migration authorities often disregard or find as unconvincing evidence showing past torture.22 Moreover, the Swedish authorities have placed limited importance on an applicant’s political activities and the consequences of such in the country of origin for other members of his or her family. Swedish NGOs have expressed their concerns regarding asylum determination in Sweden, and in their alternative report to the Committee they pointed to what appeared to be a “general reluctance to believe in the statements of asylum seekers” and that the “Swedish authorities have a tendency to spend more time discussing the credibility of the applicant than considering the need of protection”. The NGOs concluded that “these cases show a problem of attitude among the Swedish authorities”.23 In asylum cases, evidence of past torture is only relevant to the extent that it can lend credibility to the assertion that the asylum seeker risks future or prospective torture or ill-treatment. State parties should thus concentrate more on putting the claim of the asylum seeker into context, rather than on the presence or absence of physical or mental scars from past torture or mistreatment. Support for this assertion is found in the statements made by Committee member Ms Illiopoulos-Strangas during the oral presentation of Denmark’s third periodic report. There she commends the initiative taken by Denmark to give suspected torture victims a more detailed examination, but sees appropriate to “emphasize that Article 3 of the

20 Communication no. 143/1999 (U.N. Doc. CAT/C/24/D/143/1999) (against Denmark), (CAT/C/30/1997/2002) 15 May 2003 (against Finland). 21 Communication no. 199/2002. The grounds for the application were inter alia that the Egyptian expellee’s wife and five minor children, as family members of an accused Islamic militant, would face a real and foreseeable risk of torture if returned to Egypt notwithstanding any ‘guarantees’ provided by the Egyptian authorities in respect of the expellee and his family. The Committee decided against the applicant and her children in concluding that “there is not, at this time, a substantial personal risk of torture of the complainant in the event of her return to Egypt”. (CAT/C/31/D/199/2002) 24 Nov 2003, para. 12.3, emphasis added. 22 Brian Gorlick, ‘The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees’, 11:3 International Journal of Refugee Law, (1999). 23 ‘Alternative Report (2001)’, supra note 13.

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ROBIN LÖÖF AND BRIAN GORLICK Convention [does] not require such medical examinations. For Article 3 to apply, it was not necessary for a person under threat of expulsion to have been tortured”.24 During the oral presentation of Sweden’s fourth report, the Swedish government representative noted that no decisions had been rendered against Sweden in the European Court of Human Rights under Article 3 of the European Convention, with provisions similar to Article 3 of the CAT, despite the fact that “more than 100 applications [had been] filed against Sweden under that Article”.25. This echoes the concern expressed by the state party in the case of I.A.O. v. Sweden (1998) before the Committee “about a possible development of different standards under the two human rights instruments of essentially the same right”.26 Sweden feared that such a development would “create serious problems for states which have declared themselves bound by both instruments”.27 Counsel for the applicant cut through this argument by stating that “if a different standard is applied by the two bodies, all the state party has to do is to apply the stricter of the two”.28 Sweden has reportedly used the same argument in another communication29 and this has led at least one NGO commentator to conclude that Sweden is not open to receiving criticism from the UN human rights treaty bodies in general and the Committee against Torture in particular.30 In actual fact, Sweden has taken note of the expressed concerns by UN bodies and other actors in applying these human rights standards in cases of rejected asylum seekers, and the Swedish Aliens Appeals Board has issued a “guidance paper”31 for asylum cases where allegations of torture are raised. The Swedish Migration Board has also organised training seminars for case handling officers and decision-makers on these human rights issues with participation of representatives of UNHCR, the Office of the UN High Commissioner for Human Rights and Swedish NGOs including Amnesty International and the Swedish Red Cross. Hopefully the effort will pay off in a change of approach in applying these fundamental human rights principles to the adjudication of asylum claims.

24

(U.N. Doc. CAT/C/SR.287). (U.N. Doc. CAT/C/SR.507) para. 25. 26 Communication no. 65/1997 (U.N. Doc. CAT/C/20/D/65/1997). 27 Ibid. 28 Ibid. 29 Communication no. 83/1997 (U.N. Doc. CAT/C/20/D/83/1997). 30 Anna Wigenmark, ‘International criticism disregarded in Sweden’, 1 Swedish NGO Fund for Human Rights Newsletter, 2002. 31 ‘Handledning vid prövning av utlänningsärenden där uppgifter finns om tortyr eller annan omänsklig eller förnedrande behandling’, Utlänningsnämnden, (Rev. Maj 2000), (on file with the author). 25

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES 2. Fair procedure 2.1. The nature of appeal Related to the above discussion are a number of questions about the adequacy of the procedures used to determine the status of asylum seekers. In the Nordic countries, with the exception of Finland where appeals are heard by the Helsinki Administrative Court, appeals in asylum cases are dealt with by quasi-judicial administrative bodies (with the possibility, if leave is granted, of reviewing the legality of the decisions before a court of law). This sets them apart from the common law world where judicial review of an administrative decision is generally available and often rigorously applied. Furthermore, viva voce hearings at the appeals level in asylum cases are not systematically provided for in the Nordic countries and the concern has been expressed that this may undermine the administrative fairness of the determination procedure. In Sweden a protracted debate is ongoing as to whether the second instance Aliens Appeals Board should be abolished and replaced by three of Sweden’s twenty-four Regional Administrative Courts which would only deal with appeals in asylum and immigration cases. In their alternative report to the Committee against Torture concerning Sweden’s fourth periodic report, Swedish NGOs have been critical of the inadequate reasoning in decisions rendered by the Appeals Board. It was noted that “in many cases it is impossible for the asylum seeker to extract which elements have been crucial when deciding substantial grounds for the risk of torture”.32 They are also critical of the weight given to confidential reports from Swedish embassies with country information which, because they are considered classified documents, are not disclosed to the asylum seeker or his or her legal counsel, and therefore the information cannot be properly tested or refuted. The Swedish Helsinki Committee is of the opinion that “since cases of asylum are of such a grave and life-determining character, trial by court is the only possible way forward”.33 They are further encouraged by the prospect of a standardised inter partes, or adversarial, procedure where the Migration Board would have to present its arguments and have them questioned by the asylum seeker represented by legal counsel. Currently, the Swedish authorities are preparing the formal proposal34 after a first proposal encountered resistance in the Swedish Law Commission. As a general observation, even though the competence of the members and staff of the respective Nordic appeals boards may not be questioned, asylum determination by a court of law should be less likely to be affected by the policies and views of the government. A court should also be more receptive to the opinions of other judicial and/or quasi-judicial bodies dealing in this specific area of law. Having said this, one can only speculate as to whether the proposed changes to the

32

‘Alternative Report (2001)’, supra note 13. Swedish Helsinki Committee Annual Report 1999. 34 Swedish government publication Skr. 2002/03:28. 33

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ROBIN LÖÖF AND BRIAN GORLICK Swedish asylum system will result in related changes in assessing claims to refugee status, particularly as regards recognition rates. 2.2. ‘Safe Country Concepts’ A practice which has drawn considerable criticism from the Committee against Torture is Finland’s use of the so-called ‘safe third country’ principle. In its concluding observations to Finland’s second periodic report, the Committee expressed its concern “about the absence of sufficient legal protection of the rights of persons who are denied asylum through the use of a list of safe countries”.35 According to Committee country rapporteur, Mr Yakovlev, “if the applicant was a national of a country on that list, his [or her] request would be rejected immediately”.36 During the oral examination of Finland’s third periodic report the Finnish representative explained that a ‘safe third country’ was one which is a party to the main human rights treaties “and [in compliance] with them”.37 According to the answers provided by the government representative during examination of Finland’s fourteenth periodic report to the Committee on the Elimination of all Racial Discrimination in 199938, Finland had recently moved from a policy of safe third countries of origin, to one of safe third countries of asylum. However, under the current Aliens Act both concepts are applicable. The Finnish authorities maintain there is no longer a safe country list, but that individual assessments are made. If this is the practice in Finland then it conforms to UNHCR’s position. However, return of an asylum seeker without an adequate and fair individual assessment of whether it would be safe to return the concerned individual would be an infringement of the non-derogability of Article 1(A) of the 1951 Refugee Convention and would be contrary to established protection principles.39 2.3. Erroneous Repatriations A recurring problem which asylum countries have to deal with is that of asylum seekers refusing to divulge their country of origin. In Sweden, the Migration Board regularly makes use of linguistic tests to try to establish the provenance of asylum seekers, which can be instrumental information to the return of the person in question to the correct country following the rejection of his or her asylum 35

(U.N. Doc. A/51/44) para. 131. (U.N. Doc. CAT/C/SR.249) para. 22. 37 (U.N. Doc. CAT/C/SR.397) para. 7. 38 (U.N. Doc. CERD/C/SR.1309). 39 Return of an asylum seeker to a so-called ‘safe’ first asylum country would require that concerned states would ensure protection of the asylum seeker from refoulement; that the asylum seeker would be permitted to seek asylum in the country he or she is being returned to; for the purposes of seeking asylum, the concerned individual would be entitled to a fair refugee status determination procedure; and that the asylum seeker would be treated in accordance with general principles of international human rights law. 36

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES application. The NGO alternative report to the Committee against Torture on Sweden’s fourth periodic report is critical of the procedure which the NGOs believe has lead to ‘refugee-dumping’. Media reports have indicated that it seems to be not infrequent practice to send rejected asylum seekers, or those refused entry to Sweden on safe-country grounds, from West Africa to Ghana from where they are ‘redirected’. According to the NGOs the redirection process “might result in a person’s return to a country, where he or she is at risk of torture”, and there are reports that “some persons who have been subject to the “redirection” process have … been imprisoned and ill-treated for long periods of time in Ghana and at least one person has “disappeared””.40 In its concluding observations, the Committee expressed its concern at the “allegation that some foreigners have been expelled or sent back to a country with which they have no significant ties on the basis of inter alia linguistic criteria which are sometimes unsystematic, unreliable, and could lead to a breach of Article 3 of the Convention”.41 During oral examination of the report, the Swedish government representative stated that these criticisms had “related more to the ethical and legal aspects of the system than to the risk that the expelled alien could be exposed to torture or ill-treatment”.42 Apparently the system is based on the right to 90 days of free residence that citizens of the Economic Community of West African States (ECOWAS) enjoy in each other’s countries. Moreover, Ghana has reportedly accepted with remuneration to receive expelled West Africans from Europe. Given the serious consequences of such practices by Sweden and possibly other states, it appears warranted that the Committee should continue to monitor these alleged practices. 2.4. Circumscription of Article 22 CAT? A general concern which seems to hover over almost any deportation policy is when the decision to deport should be executed. In its concluding observations to Denmark’s fourth periodic report, the Committee against Torture expressed concern over proposed amendments to the Danish Aliens Act which provide that aliens who are refused a residence permit had to leave the country immediately. The Committee was concerned that the provision, if strictly applied, would “frustrate the effectiveness of Article 22 of the Convention”.43 During the oral presentation of the report, the Danish government representative merely stated that all provisions on expulsion would be applied in conformity with the requirements of Article 3 of the CAT. In connection with the current Danish government’s stated objective to tighten immigration laws and policies44, the Committee and other concerned actors may be 40

‘Alternative Report (2001)’, supra note 13. (U.N. Doc. CAT/C/XXXVIII/CONCL.1). 42 (U.N. Doc. CAT/C/SR.507). 43 (U.N. Doc. CAT/C/XXVIII/CONCL.3) para. 6(c). 44 See Danish government policy paper of 17 January 2002: ‘A New Policy for Foreigners’, and ‘UNHCR’s comments on the Draft Bill on amending the Aliens Act, the Marriage Act 41

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ROBIN LÖÖF AND BRIAN GORLICK well-advised to keep a close eye on expulsion practices so that procedural safeguards under international law are respected. 2.5. Timeliness of the determination procedure Although it is understood that growing numbers of asylum seekers strain domestic refugee determination systems, UNHCR has on numerous occasions expressed concern over the time refugee status determination procedures take in the Nordic countries. UNHCR and other commentators have noted that extreme delays in receiving an answer on an asylum claim can have serious negative psychological impact on an asylum seeker and their family members. Refugee status determination processing times in all the Nordic countries can run up to years in some circumstances. UNHCR is of the view that it is possible to combine fairness with efficiency and has advocated that the two goals are inextricably linked. UNHCR emphasises the need to strengthen first-instance decision making procedures by providing sufficient resources at the front-end of the determination process. Their reasoning is that if the interview and fact-finding procedure is thoroughly and competently conducted in the first-instance the propensity to appeal will decrease, or at least the tendency to have cases overturned on appeal would be lessened.45 UNHCR and NGOs have also brought to the attention of various UN human rights committees the problem of asylum centres being located in remote areas, an issue primarily encountered in Finland. Even though the asylum seekers enjoy freedom of movement, they may have nowhere to go, resulting in feelings of isolation which in some cases leads to stress-related health problems, especially given the long waiting periods involved in processing asylum claims. 2.6. Role of UNHCR in individual decisions UNHCR is regularly requested by government decision-makers and legal representatives to submit recommendations and opinion letters in individual cases and in principle UNHCR’s views, while not strictly legally binding, are considered to weigh quite heavily. When presenting Sweden’s fourth periodic report to the Committee against Torture, the national representative stated that “UNHCR recommendations on individual asylum cases were taken carefully into account in each decision, although they had no legal status”.46 However, it is less certain how this is adhered to in practice. In B.M. v. Sweden (2002), the UNHCR Regional Office in Stockholm made a written submission recommending the non-return of a Tunisian opposition activist.47 Apparently the state party, and by consequence the and Other Acts (Ref: 2001/7310-81)’, (Geneva, 18 March 2002), available online at <www.unhcr.ch>. 45 See e.g. ‘UNHCR’s Recommendations for the Italian Presidency of the EU (July-December 2003) p. 6, available online at <www.unhcr.ch>. 46 (U.N. Doc. CAT/C/SR.507) para. 26. 47 Communication no. 179/2001 (U.N. Doc. CAT/C/28/D/179/2001).

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES Committee, did not place much credence in UNHCR’s opinion. On the contrary the decision concluded that “there is nothing to indicate that the UNHCR has applied any kind of ‘foreseeable, real and personal risk’ test in its assessment”.48 Considering the world-wide presence of UNHCR and the field-expertise thereby acquired, it may not be misplaced for UNHCR’s opinions to be deemed generally credible and authoritative.49 2.7. ‘Non-status’ One of the consequences of the larger scope of Article 3 of the CAT as compared to Article 33 of the Refugee Convention is that there may be individuals who fall within the protection of the CAT, but not the Refugee Convention, nor any kind of subsidiary protection category. This is a problem mainly encountered in Denmark. The Danish Institute for Human Rights has explained that “if a foreigner has been expelled from Denmark, but has not been deported from the country because there is a risk that he or she will be prosecuted or tortured in his or her home country”, the individual will be granted “indefinite tolerated residence in Denmark”.50 In the corresponding report from 2000, the Danish Institute states that “there are no rules which regulate the legal consequences of a tolerated residence, nor the conditions under which such persons live. These persons are therefore prevented from enjoying basic rights such as the right to work, housing, etc”.51 The basis seems to be that since they have been de jure expelled from the country, although the expulsion decision cannot be executed the concerned persons are legally no longer considered present in the country. The European Court of Justice disavowed a similar legal fiction in Yiadom (2000)52, and one is bound to agree with the Danish Institute when it states that “the system is probably not in compliance with a number of Denmark’s international obligations”.53 Curiously, there is no mention of these ‘tolerated residents’ in any concluding observations from the UN human rights committees although the issue has reportedly been brought to their notice. It cannot be the intention of Article 3 of the CAT that those individuals whose deportation is prevented by its provisions should be deprived of fundamental entitlements under international and national law and permitted to reside in the territory of a state party in a sort of ‘quasi-recognised’ existence. An obvious solution would be the one adopted in Sweden where “the 48

Ibid., para. 4.8. See Saul Takahashi, ‘Recourse to Human Rights Treaty Bodies for Monitoring for the Refugee Convention’, 20:1 Netherlands Quarterly of Human Rights, (2002); and Volker Türk, ‘UNHCR’s supervisory responsibility’, New Issues in Refugee Research paper no. 67, (UNHCR, Geneva, October 2002), available online at <www.unhcr.ch>. 50 ‘Human Rights in Denmark, Status 2001’, Report of the Danish Institute of Human Rights, Copenhagen (2002). 51 ‘Human Rights in Denmark: Status 2000’, Danish Institute for Human Rights (2001). 52 Case no. C-357/98. 53 Supra note 50, 51. 49

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ROBIN LÖÖF AND BRIAN GORLICK Aliens Act… [provides] that aliens [can] be granted a residence permit by decision of the Aliens Appeals Board even after an expulsion order [has] been issued” on the basis inter alia of a ruling by the Committee against Torture.54 2.8. Detention Detention of asylum seekers is a general concern expressed by UNHCR, the NGO community and refugee advocates. Indeed state parties have a difficult balance to strike between the competing interests of providing a fair and efficient asylum procedure and the risk that individual asylum seekers may abscond or fail to cooperate with the authorities as a result of a negative decision. Concerns with controlling the entry of foreigners for security reasons are also voiced as a motivation by states to resort to detention practices, especially in the post 9/11 environment. In this context, an example of successful intervention by the human rights treaty bodies is the case of the former Finnish practice of detaining asylum seekers in common jails. Although detention of asylum seekers in Finland is not an overly common practice, the use of remand jail facilities is considered unacceptable for asylum seekers.55 In its concluding observations to Finland’s fourth periodic report, the Human Rights Committee expressed its concern with regard to this practice.56 The criticism was not as severe as could be expected, but on the other hand it appears from the summary records of Finland’s second and third periodic reports to the Committee against Torture that Finland was well aware of the Committee’s concern.57 For a considerable time it was the ambition of the Finnish authorities to transfer detained aliens to “detention facilities especially intended for that purpose as soon as possible”.58 This matter was finally addressed in 2002 when Finland established a separate detention facility for foreigners in a refurbished jail in central Helsinki, and a separate new detention facility was due to be opened in 2004. The Danish Institute for Human Rights has expressed criticism of Danish “problems of honouring the basic principle of proportionality on which both the human rights and Danish law is based”.59 An example of this being that “the rules on detention of asylum seekers and administrative expulsion have been tightened so that today it is possible to make unnecessarily widespread use of detention instead of focusing on a reduction of the examination time”.60 UNHCR expressed its concern about Danish rules granting administrative bodies not connected to law enforcement the power to detain asylum seekers pending refugee status determination upon mere 54

(CAT/C/SR.507) para. 24. See generally ‘UNHCR Guidelines on the Detention of Asylum Seekers’’, (Geneva, 1999), available online at <www.unhcr.ch>. 56 (U.N. Doc. CCPR/C/79/Add.91). 57 (U.N. Doc. CAT/C/SR.249) and (CAT/C/SR.397). 58 (U.N. Doc. CAT/C/SR.397) para. 16. 59 ‘Human Rights in Denmark, Status 2000’, supra note 51. 60 Ibid. 55

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES suspicion of minor offences such as shoplifting.61 As pointed out by UNHCR in its written comments on an earlier Danish law proposal, this provision may violate the principle of non-discrimination as custodial sentences are normally not handed down for the same offences committed by Danish nationals. With respect to Denmark and Sweden, UNHCR also expressed its concern about the lack of a maximum time of detention for asylum seekers. Even though there are review procedures for detention cases in both countries, there is nothing preventing a detention order from being perpetually renewed. Administrative detention should never be used lightly, and these practices which particularly impact on asylum seekers and refugees require close review and should be subject to stringent tests of proportionality and alternative means. 3. Discrimination, Xenophobia and Racism 3.1. Discrimination An initial observation concerning the Nordic countries is that discrimination exists, but only de facto and not de jure. This is borne out in the criticism levelled at the Nordics by the various human rights bodies. An example is the wording found in the concluding observations to Finland’s fourth periodic report by the Human Rights Committee (HRC), which expressed its concern at the “increase in negative attitudes and de facto discrimination toward immigrants among some of the Finnish population”.62 Similar formulations are to be found in the concluding observations to Sweden’s thirteenth through sixteenth reports by the Committee on the Elimination of Racial Discrimination (CERD) which inter alia took note of the “increasing incidence of racial discrimination in restaurants, other public places, and with regard to access to services”, in addition to concerns that few of the reported hate “crimes 61

UNHCR commentary on changes to Danish Aliens legislation, 2002, on file with the author. 62 (U.N. Doc. CCPR/C/79/Add.91) para. 16. A Finnish government report from 2002 noted that: “The experiences of racism and discrimination suffered by immigrants and the associated consequences for their psychological welfare were investigated in 2002. The findings … indicate that experiences of racism and discrimination are fairly common among immigrants both at work and in everyday life more generally. Nearly one third of the immigrant surveyed reported that they had been subject to verbal abuse, threats, crimes of property or other racist offences on at least one occasion during the preceding year … According to the study, 73% of the victims of racist offences and 86% of immigrants who had experienced discriminatory treatment had at no stage reported this to the police, either because they regarded the offence as too trivial or because they felt that reporting the matter would result in no further measures being taken … The more frequently immigrants reported experiencing racism and discrimination, especially in their everyday lives, the more often they also suffered from anxiety, depression and psychosomatic disorders.”, Government Report on Implementation of the Integration Act, Government report no 5 of 2002, Finland, pp. 68–69 (on file with the authors).

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ROBIN LÖÖF AND BRIAN GORLICK have led to prosecutions” which means that the “relevant domestic legal provisions are rarely applied”.63 A problem which plagues all the Nordic states and can for present purposes serve as a general benchmark is the fact that unemployment is several times higher among refugees and immigrants than among the ‘native’ populations. UNHCR and other actors have consistently brought the problem of discrimination in the labour market to the attention of the various treaty bodies and the committees regularly highlight these issues in their concluding observations. An example can be found in the concluding observations to Denmark’s third periodic report to the Committee on Economic, Social and Cultural Rights (CESCR) where the Committee noted that despite the “recent decrease in the percentage of the population who are unemployed, it is still concerned that the level of unemployment remains high, especially among foreign nationals, immigrants and refugees”.64 As with any social problem of which the states parties are fully aware, the respective committees may feel ill-positioned to criticise too heavily. One example is the approach taken by the HRC in its concluding observations to Norway’s fourth report where it noted “that the unemployment rate for immigrants is still substantially higher than for the rest of the population”, while “[commending] the new legislation and the plan of action, both seeking to promote equality in the labour market”.65 Although none of the state parties would acknowledge that discrimination is entirely to blame for the whole of the existing disparities in the employment field, which seems perfectly justified, they do acknowledge its contribution. Or, as the Norwegian representative stated during the oral presentation of Norway’s fifteenth report to the CERD, “it cannot be excluded that some discrimination occurred”.66 Without delving too deeply into this complex matter, mention should be made of some factors which have been highlighted by various monitoring bodies. The European Commission against Racism and Intolerance (ECRI) prepares reports on the status in all the member states of the Council of Europe. In its second report on Finland the ECRI noted that “difficulties in gaining recognition of qualifications gained abroad, and the requirement that workers in certain sectors speak both Finnish and Swedish, have proved a serious barrier to persons of immigrant origin seeking employment”.67 This type of inhibiting structural rigidity is also noted with respect to the other Nordic states. In its second report on Norway the Commission stated that “the arrangements for recognition of education and professional experience are inadequate”. 68 In its second report on Denmark, after having noted that trade unions are instrumental in negotiating the collective agreements which constitute the backbone of the Danish labour market, the Commission noted that

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(U.N. Doc. CERD/C/304/Add.103) para. 17; and (CERD/C/64/CO/8) para. 8. (U.N. Doc. E/C.12/1/Add.34) para. 18. 65 (UN CCPR/C/79/Add.112) para. 6. 66 (U.N. Doc. CERD/C/363/Add.3) para. 13. 67 Report reference no. CRI (2002) 20. 68 CRI (2000) 33. 64

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES they “have been widely criticised for not paying sufficient attention to the phenomenon of discrimination”.69 3.2. Xenophobia, racism and the current political climate More difficult is the question of how to counteract the discrimination stemming from people’s negative attitudes towards foreigners and refugees. Societal attitudes are often nothing more than instinctive reactions to difference which have a tendency to increase in times of economic difficulty. Or, as the Danish representative explained to the CERD: “[Denmark] did distinguish between racial discrimination in the strict sense of the word and everyday expressions of hostility towards aliens, which could be heard everywhere, particularly during times of unemployment”.70 The distinction may not be so clear-cut in that high levels of unemployment may exacerbate these negative attitudes and as a result, those holding such opinions may be able to apply their hostility by denying employment opportunities to immigrants. CERD has also acknowledged that the economic climate can impact on the level of hostility towards foreigners in Nordic society when it concluded in observations to Sweden’s twelfth periodic report that the “recession has had serious consequences for the state party”, and that its “consequences… have been most felt in the labour market situation of refugees and immigrants, who have been found worse off than Swedes in most areas of society”.71 A number of human rights NGOs and UNHCR have similarly observed the “emerging trend towards intolerance” in Europe.72 An alternative report to the CERD on the situation in Sweden stated that “many immigrants experience Sweden as a sealed society. A society in which it is difficult to find your place and be accepted.”73 A year later the CERD gave credence to such views in expressing concern at “a recent upsurge in racism and xenophobia”.74 In Finland the CERD noted that it was “concerned … that a significant percentage of Finns declare themselves to be racist or partially racist”.75 More recently after concluding its examination of Finland’s sixteenth periodic report, the CERD maintained its concern about “the significant number of allegations which have been brought to its attention reflecting the existence of racist and xenophobic attitudes among some sectors of the population, notably among the young”.76 69

CRI (2001) 4. (U.N. Doc. CERD/C/SR.1138) para. 26. 71 (U.N. Doc. CERD/C/304/Add.37) para. 3. 72 Concluding observations to Denmark’s third periodic report to the CESCR (U.N. Doc. E/C.12/1/Add.34) para. 15. 73 ‘Information to the CERD Committee’, Joint NGO Report (2000), on file with the author. 74 Concluding observations to Sweden’s thirteenth and fourteenth periodic reports (U.N. Doc. CERD(C/304/Add.107) para. 16. 75 Concluding observations to Finland’s fifteenth periodic report (U.N. Doc. CERD/C/304/Add.107) para. 16. 76 (U.N. Doc. CERD/C/63/CO/5) 22 August 2003, para. 13. 70

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ROBIN LÖÖF AND BRIAN GORLICK Denmark has recently occupied a prominent position in the debate about the hardening climate for foreigners. The ECRI stated that it was “deeply concerned that extreme right political parties, such as the right-wing Danish People’s Party (which opinion polls estimate currently has the support of 15–20% of the population) have become increasingly prominent on the Danish political scene, promoting racist and xenophobic ideas”.77 UNHCR has also expressed its concern that the “government policy proposals concerning refugees [might feed] into perceived prejudices and generalisations about immigrants”.78 The concern is justified. On 17 January 2002 the Danish government released a policy-paper entitled ‘A New Policy for Foreigners’. The document can be seen as an expression of this new attitude as the tone and content of the paper display distrust towards foreigners. For example, with respect to refugees, the document states that “refugees travelling to their country of origin on holiday will automatically have their cases reassessed” and “if they are no longer persecuted in their countries of origin their residence permits must be revoked”. This type of reasoning runs counter to the government’s stated goal of improving the integration of foreigners into Danish society by manifesting a will to get rid of them at the first opportunity. Other suggestions in the document include increased use of the ‘manifestly-unfounded procedure’ and the removal of the representative from the Danish Refugee Council (DRC) from the second-instance Refugee Board, a presence which has been commended by UNHCR as a ‘model’ aspect of the Danish asylum system. A long section in the document on social benefits conveys the image of refugees as nothing more than resource-draining burdens on society. Yet again, it would appear as though refugees are made to suffer for the partial failures of Scandinavian integration policies. The fact that the Danish policy paper was later transposed into legislation in the form of a revised Aliens Act has also created serious problems, many of which have been identified by the Committee on the Elimination of All Forms of Discrimination against Women, UNHCR and the NGO community.79

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CRI (2001) 4. UNHCR’s preliminary comments on ‘A New Policy for Foreigners’ as communicated by the government of Denmark, UNHCR Regional Office, Stockholm (2002). 79 As noted, the Danish policy document resulted in the introduction of a revised Aliens Act which came into force on 1 July 2002. UNHCR and the Danish NGO community were highly critical of the new law (see reference to UNHCR’s comments on the Draft Aliens Act ibid.). The Committee on the Elimination of Discrimination against Women, in its consideration of the fourth and fifth periodic reports of Denmark (CEDAW/C/DEN/4 and CEDAW/C/DEN/5 and Add. 1 and Corr. 1) highlighted an extraordinary number of issues in the new Act and under ‘Principal areas of concern and recommendations’ noted the following: 341. The Committee is concerned that the Aliens Act, which although gender-neutral, indirectly discriminates against women. 342. The Committee recommends that the state party review the Aliens Act and revoke those provisions that are incompatible with the provisions of the Convention, particularly article 2, which prohibits direct and indirect discrimination. 78

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES In Denmark, the political party identified by the ECRI and various human rights bodies as responsible for this new rhetoric is the Danish People’s Party (Dansk Folkeparti or DPP). Although the DPP does not form part of the government, its impact on the Danish political scene is considerable. This development is regrettable, even more so as Denmark has traditionally been one of Europe’s strongest supporters of refugees and it can pride itself on being the first state party to the 1951 Refugee Convention. A similar development has taken place in Norway where the Progress Party (Fremskrittspartiet) has flourished using anti-immigrant rhetoric. In 1997 the CERD stated that “the fact that a Norwegian political party promotes racial discrimination is a source of serious concern”.80 At the parliamentary elections in 2000 the Progress Party increased its vote to 15 per cent, but no mention of this or related concerns were made by the CERD in its concluding 343. The Committee expresses concern about the situation of migrant, refugee and minority women in Denmark, including discrimination in education and employment and at gender-based discrimination and violence they may experience. 344. The Committee urges the State party to take effective measures to eliminate discrimination against migrant, refugee and minority women. It encourages the State party to be proactive in its measures to prevent discrimination against migrant, refugee and minority women, both within their communities and in society at large, to combat violence against them, and increase their awareness of the availability of social services and legal remedies. 345. The Committee regrets the introduction in new legislation of an increase in the age limit for spousal reunification from 18 years to 24 years of age in order to combat forced marriage. 346. The Committee urges the State party to consider revoking the increase in the age limit for family reunification with spouses, and to explore other ways of combating forced marriages. 347. The Committee is concerned that the situation of foreign married women with temporary residence permits who experience domestic violence will worsen when the amendment to the Aliens Act enters into force on 1 July 2002, which will increase the required number of years of residence from three to seven before a permanent residence permit may be obtained. The Committee is also concerned that these women’s fear of expulsion will be a deterrent to their seeking assistance or taking steps to seek separation or divorce. 348. The Committee recommends that revocation of temporary residence permits of foreign married women who experience domestic violence, and legislative changes on residency requirements should not be undertaken without a full assessment of the impact of such measures on these women. 349. The Committee is concerned that, under the amended Aliens Act, some women who do not have refugee status might be forcibly repatriated to where they had been subjected to rape and/or other atrocities and may face the threat of further persecution. The Committee urges the State party to refrain from forcibly repatriating such women and to ensure that repatriation in these circumstances is voluntary...” (emphasis in the original). 80 Concluding observations to Norway’s twelfth, thirteenth and fourteenth periodic reports, (U.N. Doc. CERD/C/304/Add.40) para. 13.

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ROBIN LÖÖF AND BRIAN GORLICK observations to Norway’s fifteenth periodic report.81 While issues of xenophobia and racism are widely discussed in Norway today, hostile attitudes that would have been considered inconceivable several years ago are nowadays not uncommon. The fact that many European countries, including ones with strong human rights traditions such as the Nordic countries, have seen a growing popularity of political movements and parties which promote an anti-immigrant agenda has had a strong negative effect on the domestic refugee debate. When attitudes towards foreigners harden, discriminatory behaviour in general becomes more prevalent. Arguably the worst kind of discrimination is that which affects people’s everyday lives. Discriminatory attitudes have been noted by most of the UN human rights treaty bodies, but a concrete example raised by the CERD is that of restrictive ‘entry policies’ to restaurants and clubs.82 The humiliation this and similar treatment amounts to is known to be a powerful destructive force to any attempts at integration. 3.3. The Article 4(b)-conundrum in relation to the Convention on the Elimination of All Forms of Racial Discrimination It is on the issue of the implementation of Article 4(b) of the Convention on the Elimination of All Forms of Racial Discrimination that one of the few, unveiled conflicts between Nordic states parties and a UN human rights committee exists. Article 4(b) provides that state parties “‘shall declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law”. The CERD has consistently “emphasised that Article 4 is one of the key articles of the Convention”.83 As none of the Nordic countries have entered a reservation against Article 4(b), legally they are bound to respect and to implement it. Other state parties such as France and the UK have made sure to enter reservations in order to avoid having this precise disagreement with the CERD.84

81

(U.N. Doc. CERD/C/304/Add.88). Ibid., para. 17 and (CERD/C/304/Add.103) (concluding observations to Sweden’s thirteenth and fourteenth periodic reports, 2001) para. 17. 83 (U.N. Doc. CERD/C/SR.1032) para. 28. 84 France: “With regard to Article 4, France wishes to make it clear that it interprets the reference made therein to the principles of the Universal Declaration of Human Rights and to the rights set forth in article 5 of the Convention as releasing the States parties from the obligation to enact anti-discrimination legislation which is incompatible with the freedoms of opinion and expression and of peaceful assembly and association guaranteed by those texts.” UK: “[The United Kingdom] interprets Article 4 as requiring a party to the Convention to adopt further legislative measures… only in so far as it may consider with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention (in particular the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association) that some 82

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES The Nordic countries have made the point “that a general rule expressly prohibiting organisations such as those described in that article was unnecessary and would raise complex issues in relation to other human rights guaranteed by the constitution, such as free speech and freedom of association”.85 The CERD has refused to accept this line of argument with one member stating that he found it “disturbing that some European countries attached more importance to freedom of expression than to Article 4 of the Convention”.86 The Convention dates from 1965, and in the context of its inception, the prohibition in Article 4(b) is understandable. Shocked by the distasteful politics of fascism in Europe and apartheid in South Africa, Article 4(b) was the world’s way of saying that in the future it would do its utmost to nip such tendencies in the bud. The CERD has not shied away from suggesting that the introduction of prohibitions and other criminal law measures is an acceptable approach to combating the serious problem of xenophobia and intolerance. During the oral presentation of Denmark’s fourteenth periodic report, a CERD member stated that the fact that none of the politicians which in his mind had made ‘insulting’ statements about Africans and Asians had been prosecuted, “demonstrated that the authorities and political leaders held attitudes that encouraged racist statements”. In response to this remark the Danish representative stated that “it was not always easy to strike an acceptable balance between respect for freedom of expression and action against racist propaganda and incitement to racial hatred”, and that “in a democracy, it should also be possible on occasion to make statements that were offensive or shocking”.87 In relation to the Norwegian Progress Party some CERD members have done all but call for the prohibition of the party as well as that of similar political movements.88 During the oral presentation of Sweden’s eleventh periodic report, one CERD member expressed deep concern at the emergence of the rightwing party New Democracy (Ny Demokrati) and criticised the “apparent laxity shown by the Swedish authorities in dealing with the problem”.89 Together with a documented legislative addition to or variation of existing law and practice in those fields is necessary for the attainment of the end specified in the earlier part of Article 4.” 85 (U.N. Doc. CERD/C/SR.1032) para. 6. 86 (U.N. Doc. CERD/C/SR.1032) para. 64. 87 (U.N. Doc. CERD/C/SR.1378) paras. 3 and 32. 88 (U.N. Doc. CERD/C/SR.1232) para. 25. 89 (U.N. Doc. CERD/C/SR.1018) para. 72. In March 2004, in its concluding observations to Sweden’s fifteenth and sixteenth periodic reports the Committee noted the fact that Sweden ‘continues to uphold its interpretation of the provisions of Article 4 of the Convention, maintaining that criminal acts committed by the members or supporters of a racist organisation may be prohibited and penalised by law, but not the existence of, and participation in racist organisations”. The Committee drew Sweden’s attention to “its General Recommendation XV according to which all provisions of Article 4 of the Convention are of a mandatory character, including declaring illegal and prohibiting all organisations promoting and inciting racial discrimination, as well as recognising participation in such organisations as an offence punishable by law. Accordingly, the Committee recommends that the State Party

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ROBIN LÖÖF AND BRIAN GORLICK surge in so-called ‘hate-crimes’, the Committee noted, this makes for a frightening development the countering of which apparently necessitates increased judicial activity.90 It appears that the differences of opinion and approach of the CERD and the Nordic countries on this particular issue will not be easily resolved. More concerted action by the Nordic authorities to curb the activities of racist organisations, and in appropriate cases rigorously prosecute those responsible for race and hate-related crimes would be a positive development.91 For its part the CERD could continue to focus on the need for states to adopt best practices to counter the phenomenon of racism and to promote democratic ideals and tolerance in schools as well as in public institutions, through public education, the media and promoting an active politics of integration. All of these measures may be sharper tools to counter racism and intolerance than the blunt approach of prohibition and criminalisation. Then again, the Nordics would do well to adhere to all of their treaty obligations or adopt formal reservations in respect of Article 4. 4. Refugee children Any crisis situation disproportionately affects the weakest individuals. That children need special protection seems self-explanatory, but even today, fifteen years after the adoption of the Convention on the Rights of the Child (CRC), which in Article 22 affords special protection on the child seeking refuge, the impression in many quarters is that “asylum-seeking children are not seen [nor] heard”.92 The reasons for this are manifold. Before delving into substantive provisions, however, there are two preliminary points relating to Convention availability and applicability which the

reconsider its position and adopt the necessary legislation in order to ensure full compliance with Article 4(b) of the Convention.” (U.N. Doc. CERD/C/64/CO/8) para. 10. 90 See e.g. (CERD/C/304/Add.93) (concluding observations to Denmark’s 14th periodic report) para. 10, (CERD/C/304/Add.60) (concluding observations to Finland’s 13th and 14th periodic reports) para. 8, (CERD/C/304/Add.40) (concluding observations to Norway’s 12th and 13th periodic reports) para. 12, (CERD/C/304/Add.103) (concluding observations to Sweden’s 13th and 14th periodic reports) para. 10. As concerns Finland, a 2002 report notes that “there has been a slight rise in the number of reported offences with racist overtones in recent years. While 368 racist offences were reported in 1999, the corresponding figure for the year 2000 was 402. As these accounts are based on information procured from the police register of reported offences, the figures given are only a guide to the true situation”, Government Report on the Implementation of the Integration Act, op cit, p 68. 91 It is noteworthy that in 2002 criminal charges were brought against several Danish political party officials and private persons for offences relating to incitement of hatred against an ethnic group. Whether this initiative has been spurred on by CERD’s criticisms, as well as attention from the liberal media and other commentators is a relevant consideration. 92 The Norwegian Commission for Church Asylum (1996) quoted in the parallel report to the Committee on the Rights of the Child by the Forum for the Convention on the Rights of the Child (FCRC), Norway, concerning Norway’s second periodic report (2000).

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES Committee on the Rights of the Child (the Committee) has consistently expressed to try to remedy this lack of perspective with reference to the CRC. 4.1. Convention availability In its concluding observations to Finland’s second periodic report in 2000, the Committee “encourage(d) the state party… [to make] the Convention available in the languages of the main immigrant groups”.93 UNHCR made a similar point when commenting on separated asylum seeking children in Denmark in 2002 and Swedish Save the Children has advocated that “the rights of children to have knowledge and information about the Convention have not yet been met”, and proposed “that the Convention be made available… in various immigrant languages”.94 This point was also raised in the Committee’s concluding observations to Norway’s initial report in 1994, and when the same matter arose during examination of Norway’s second periodic report in 2000 the representative affirmed that “the Convention on the Rights of the Child had been translated and published… in some of the languages most commonly spoken by immigrants settled in Norway”.95 The above is another example of where attention by a human rights treaty body is likely to have precipitated a direct improvement in the practice of a state party. The utility of the measure resides not so much in the use which could possibly be made of the CRC by refugee children themselves, but that the translation process necessitates an active commitment by the state party which may lead to a change in attitudes. In the words of the Finnish Central Union for Child Welfare, “even professionals working with children are not aware of the Convention and its contents well enough”.96 Another NGO, the Norwegian Forum for the Convention on the Rights of the Child (FCRC) has remarked that “the Convention is almost never referred to by lawyers or the authorities processing deportation cases”.97 UNHCR has also raised this point in its discussions with the Committee. The issues of information and access run parallel with the obligation of states parties to “ensure the rights set forth in the present Convention”98 and provide that in all actions concerning children “the best interest of the child shall be a primary consideration”.99

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(U.N. Doc. CRC/C/SR.626). Parallel report to the Committee on the Rights of the Child concerning Sweden’s second periodic report (1998). 95 (U.N. Doc. CRC/SR.626). 96 Parallel report to the Committee on the Rights of the Child concerning Finland’s second periodic report (2000). 97 Parallel report to the Committee on the Rights of the Child by the FCRC concerning Norway’s second periodic report (2000). 98 Convention on the Rights of the Child, Article 2. 99 Convention on the Rights of the Child, Article 3. 94

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ROBIN LÖÖF AND BRIAN GORLICK 4.2. Convention applicability In the Nordic context a further complication is that international treaties cannot automatically be invoked before national courts and administrative tribunals. Most of the Nordic countries adopt a dualist approach to international treaties whereby they must be incorporated by making existing legislative provisions compatible with treaty obligations. Alternatively, international treaties can be adopted into national law by a specific act of parliament. The latter is rare, but has occurred as illustrated by Denmark and Norway introducing the European Convention of Human Rights into national law. With respect to a proposal in Norway suggesting that the principal human rights conventions should be established as national law, the Norwegian Save the Children noted that the CRC was not included as it was considered a “special Convention”.100 It asked the Committee to put the question to the Norwegian government and in the Committee’s concluding observations the matter was noted.101 In the concluding observations to Norway’s second periodic report the Committee expressed its concern that “the provisions of and principles of the Convention are not entirely respected with regard to asylum-seeking children”.102 Clarification on this point is provided in the parallel reports by the respective national Save the Children organisations concerning Norway and Sweden. Referring to the obligation stated in Article 3 of the CRC in discussing asylum procedures the Norwegian Save the Children concluded that “the authorities seldom put much emphasis on the child’s situation and needs, and to a very little extent take into consideration what the situation will be like for the child on return to their country”. It further found “[standard] formulations” in decisions along the lines of “taking the child’s situation into consideration does not legitimise the family’s stay in Norway”, and that these decisions “often lack both reasoning and evaluation of the child’s situation”.103 This situation appears not to have changed much, because in its parallel report to Norway’s second periodic report the FCRC stated that: “humane consideration, association with Norway through having other family members in the country who have previously been granted residence, somatic problems and serious psychological trauma after persecution, had no influence whatsoever on the outcome of asylum applications where the decision arrived at was rejection. Precedence was always given to government immigration policy.”104 Its Swedish counterpart found similar standard formulations holding that “the requirements of Article 3 in the Convention… are not absolute” and that regard must be had to “other important interests”. Swedish Save the Children noted: “An example of such an important 100

Parallel report to the Committee on the Rights of the Child concerning Norway’s initial report (1994). 101 (U.N. Doc. CRC/C/15/Add.23) (1994) para. 8. 102 (U.N. Doc. CRC/C/15/Add.126) (2000) para. 48. 103 Parallel report (1994), supra note 100. 104 Parallel report (2000), supra note 92.

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES overall interest that may be weighed against the best interests of the child to stay in Sweden is stated to be the interest of society in controlling immigration”.105 The above examples illustrate the apparent failure to treat asylum-seeking children as individuals with particular protection needs. Rather, in many cases, refugee children are often subsumed under what is considered as their parents’ interests and/or in the case of separated asylum-seeking children policy imperatives are geared towards limiting the number of refugee children being able to remain in an asylum country. Although the wording of Article 3 lays down that “the best interests of the child shall be a primary consideration”, state parties tend to emphasise the relativity of this provision. In the absence of an individual complaints procedure under the CRC it is important that the Committee remind state parties of their obligations under Article 3 in relation to asylum applications, in addition to clarifying the scope and purpose of this provision as regards foreigners more generally. Even before the procedure has reached the stage of a final decision it appears from both the Committee’s observations and reports from various NGOs that national asylum procedures are rarely adapted to deal with children, irrespective of whether they come alone or as part of a family. UNHCR has advocated that police, immigration officials and lawyers who are involved with children should receive special training on identifying, communicating with and interviewing separated children. In this context, in the concluding observations to Denmark’s initial report back in 1995, the Committee expressed its concern “about the application of the law and policy concerning children seeking asylum, particularly with regards to methods of interviewing children”.106 In its concluding observations to Finland’s second periodic report in 2000, the Committee recommended “that the state party ensure adequate resources for the training of the officials who receive refugee children, in particular in child interviewing techniques”.107 In 2001, the Finnish Directorate of Immigration organised a series of training programmes for officials and NGO caseworkers on how to conduct interviews and otherwise deal with separated asylum-seeking children. The Finnish authorities also adopted guidelines for interviewing unaccompanied refugee children that have served as a model for other countries.108 Similarly, in the other Nordic countries in recent years the immigration authorities have made efforts to train staff on child-appropriate interviewing techniques in addition to making arrangements for asylum-seeking children to have access to the determination procedure and appropriate social and legal representation in the case of unaccompanied minors. However, quoting a 1998 survey, the Norwegian FCRC noted that “observations of the police interrogation/interview of asylum seekers … show that the police reports/interrogation forms are not suitable 105

Parallel report (1998), supra note 94. (U.N. Doc. CRC/C/15/Add.33) (1995). 107 (U.N. Doc. CRC/C/15/Add.132) para. 52. 108 Guidelines for Interviewing Separated Minors, Directorate of Immigration, Finland, November 2001. 106

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ROBIN LÖÖF AND BRIAN GORLICK for assessing the situation for children in asylum cases”; and further that “children are still not interviewed about their experiences, their background for fleeing and the child’s subjective feelings about persecution and the risk of being returned”.109 This is in spite of an assurance given by the Norwegian delegation during presentation of Norway’s initial report that “any child would be able to express its views and to have a separate interview if it so wished”.110 With growing numbers of asylum seekers and separated asylum-seeking children arriving in the Nordic countries these procedural guarantees may be increasingly difficult to ensure. In this regard it is noteworthy that there is broad consensus between the Committee and the NGO community that state parties subject to this review could further improve on ensuring implementation of their obligations under Article 12 of the CRC which guarantees the child an individual say in all procedural matters affecting him or her. 4.3. Detention Commenting on Sweden’s initial report in 1993, the Committee stated that it was “concerned by the practice of taking foreign children into custody under the Aliens Act, and noted that this practice is discriminatory in so far as Swedish children generally cannot be placed in custody until after the age of 18”.111 During the oral presentation of Sweden’s second periodic report in 1999, the Swedish representative stated that “a number of measures had … been taken as a result of the concluding observations of the Committee on the Rights of the Child on Sweden’s initial report”.112 Among these measures was an amendment of the law relating to the detention of alien minors, making the rules previously applicable to under-16 year olds applicable to under-18’s with the result that, in the opinion of the Swedish delegation, “current legislation and practice were in conformity with the Convention”. This view is to be contrasted with Swedish Save the Children which, while noting that this reform was a “positive government step”, is of the view that since the revised law still provides for the possibility of detaining under-18s, “it is discriminatory that children under 18 years of age can be deprived of their liberty as if they were criminals”.113 When the Danish delegation was faced with the question of what Denmark did to avoid detaining asylum-seeking children whose applications had been rejected, it produced a written reply describing the procedure which only provided for detention as a measure of last resort.114 As an observation the Committee would do well to closely monitor the practice of detaining minors in view of deportation, and in this respect ask, in the words of Norwegian Save the Children, “if not other and more humane measures could have been used”. Moreover, the use of detention in such 109

Parallel report (2000), supra note 92. (U.N. Doc. CRC/C/Sr.150) (1994) para. 21. 111 (U.N. Doc. CRC/C/15/Add.2) para. 9. 112 (U.N. Doc. CRC/C/SR.521) para. 5. 113 Parallel report (1998), supra note 94. 114 (U.N. Doc. CRC/C/8/Add.8). 110

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES circumstances should be subject to a stringent test of proportionality and alternative means.115 4.4. Family reunification A general remark to be made about administrative procedures involving refugee children is that they often end up being delayed. This is particularly a criticism levelled at the Nordic states in relation to processing applications for family reunification. Article 10 of the CRC states that “applications… for the purpose of family reunification shall be dealt with by States parties in a positive, humane and expeditious manner”. An example of this would be, in the words of the FCRC, that “as a result of long periods of time in handling these applications, many children have almost reached the age of 18 years when a decision is reached and the reason for refusal has been that the child no longer needs a mother!”116 The same problem was found in Finland but, to their credit, the Finnish authorities revised the family reunification procedures so that “the length of the procedure may not influence the possibilities to reunite a family”.117 The Committee has nonetheless criticised the national procedures for family reunification when considering the second periodic reports of Finland118 and Norway119, and similar criticism has also been levelled at other state parties. Danish Save the Children has noted that in Denmark a distinction is made between children with a ‘humanitarian residence permit’ who do not have a legal claim to family reunification, and children with refugee status who do. Besides being a questionable distinction under the nondiscrimination provision in Article 2 of the CRC, the criteria for family reunification for children with refugee status are so strict that “‘separated children meet none of these requirements”.120 Save the Children has further noted that “[an] application for family reunification is automatically refused, without undergoing an individual procedure, if the … requirements are not met”.121 If the parents apply for family

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Articles 37(a) and (b) of the CRC; Articles 7 and 9 of the ICCPR; Articles 3 and 5 of the European Convention on Human Rights, in addition to UNHCR’s Guidelines on Protection and Care of Refugee Children, Geneva (1994) which inter alia note that: “It is UNHCR’s policy that refugee children should not be detained. Unfortunately, refugee children are sometimes detained or threatened with detention because of their own, of their parents’, illegal entry into a country of asylum. Because detention can be very harmful to refugee children, it must be ‘used only as a measure of last resort and for the shortest appropriate period of time…’” pp. 86–88. 116 Parallel report (2000), supra note 92. 117 Written reply to UNHCR questionnaire on the implementation of the CRC (2000), on file with the author. 118 (U.N. Doc. CRC/C/15/132) para. 37. 119 (U.N. Doc. CRC/C/15/Add.126) para. 32. 120 Parallel report to the Committee on the Rights of the Child concerning Denmark’s second periodic report (2000). 121 Ibid.

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ROBIN LÖÖF AND BRIAN GORLICK reunification in Denmark from another country “there is a risk that the residence permit will be withdrawn and the child sent back to [his or her] parents”.122 Swedish Save the Children has similarly noted that “processing takes a long time” and that “it is often practically difficult to effect a family reunification”.123 Furthermore, “the formal requirements and paperwork required by the Migration Board are in the majority of cases very difficult to satisfy”.124 As can be deduced from various reports from specialist NGOs, provisions for family reunification appear to be strictly applied. Even within the national authorities charged with these matters there seems to be a concerted fear of abuse of the system.125 Political trends in this area seem to be going in the direction of even stricter rules for family reunification. The above-noted Danish policy paper under the heading ‘Fewer family reunifications in Denmark’ notes the concern of so-called ‘anchor-children’ arriving in the country; a concern which is not borne out in the statistics since, according to the authorities, only a few hundred asylum applications are annually lodged by unaccompanied minors in Denmark. The precise opposite of family reunification has been known to happen as well. In its parallel report on Norway’s initial report, Norwegian Save the Children noted the occurrence of “separation of family members in connection with deportations when an application of asylum is rejected”.126 When asked about this by the Committee, the Norwegian delegation answered that an expulsion procedure was only used if the rejected applicants failed to leave the country voluntarily and that “the policy was not to split up families, and at all times the utmost effort was made to avoid doing so”.127 The parallel report of the FCRC nonetheless notes that “approximately 30 children each year” who “lose their right to be with/have contact with one of their parents, as a result of a deportation order because of a criminal offence (committed by the parent)”.128 This is also reportedly a problem in Sweden which affects some 200 children a year. A reference group under the Ministry of Justice has suggested that the authorities making the background profile of an individual in view of possible deportation be legally bound to take into account the

122

Ibid. Parallel report (1998), supra note 94. 124 Ibid. 125 An example is provided by FCRC of two unaccompanied Somali boys, nine and thirteen years old, who came to Norway to apply for asylum and subsequently family reunification with their mother. The application was rejected by the Directorate of Immigration because there were discrepancies between the asylum interviews with the children upon arrival, and the interview conducted with the mother in Mogadishu in respect of where they had lived. It did not seem as if the boys were aware that they had at times lived in Ethiopia which perhaps is not so strange since, according to reports, the nine-year-old was unaware of the concept of a ‘border’. Cited in the Parallel report (2000), supra note 92. 126 Parallel report (1994), supra note 100. 127 (U.N. Doc. CRC/C/SR.159) para. 22. 128 Parallel report (1994), supra note 100. 123

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES existence of, and repercussions for any eventual children with the aim of safeguarding the child’s right of access to both parents.129 4.5. Children in hiding Another example of what appears to be an unduly restrictive interpretation of international legal obligations is found in relation to children whose asylum applications have been rejected but who remain illegally in the country, often in hiding. Article 2 of the CRC enjoins states parties to confer the benefits of the Convention on all children, irrespective of status. In its parallel report to the Committee, Swedish Save the Children pressed the issue of children of rejected asylum seekers in hiding who have very little access to the social welfare assistance they are guaranteed under the Convention.130 The government response was that “the Swedish authorities did not tolerate illegal communities and such persons were expelled to their country of origin. Should they fail to comply with the expulsion order and go into hiding they were not entitled to rights under the Convention”.131 In its concluding observations the Committee “noted with concern that the principle of non-discrimination is not fully implemented for children of illegal immigrants”.132 Clearly the Committee has set the bar high on this issue and there is evidence that the tactic bears fruit. For example, in its concluding observations to Denmark’s initial report the Committee expressed its view on the then state of affairs that “all children who have had their asylum requests rejected but who remain in the country have had their rights to health care and education provided de facto but not de jure” was “not fully compatible with the provisions and principles of Articles 2 and 3 of the Convention”.133 At the time the Danish Aliens Act was amended so as to provide that “children of school age who applied for asylum” would be given the same educational and health benefits as Danish children “so long as they were in Denmark, regardless of whether their requests were pending or had been rejected”134 Similar legislative proposals are being promoted in Sweden which is a positive step. 5. Refugee women Similar to the priority given to refugee children, UNHCR has focussed attention to the plight of refugee and asylum-seeking women. UNHCR has developed numerous guidelines, training materials and operational practices to ensure that the protection and assistance needs of this group of beneficiaries are met. In its advocacy activities 129

Swedish government series DS 2002:41, ‘The child’s perspective in deportation due to crime’. 130 Parallel report (1998), supra note 94. 131 (U.N. Doc. CRC/C/SR.521). 132 (U.N. Doc. CRC/C/15/Add.101) (1999) para. 11. 133 (U.N. Doc. CRC/C/15/Add.33) para. 14. 134 Oral presentation of Denmark’s second periodic report (U.N. Doc. CRC/C/SR.699) para. 43.

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ROBIN LÖÖF AND BRIAN GORLICK with UN human rights mechanisms, UNHCR has developed close links with the specialised human rights treaty bodies and Commission on Human Rights-based special rapporteurs. In particular, the work of the Committee on the Elimination of Discrimination Against Women (CEDAW) has proven valuable in raising issues of concern to refugee and asylum-seeking women. In the concluding observations to Sweden’s fourth and fifth periodic reports the CEDAW “commends the government [of Sweden] for passing legislation that provides residence permits to individuals who have a well-founded fear of persecution on the basis of sexual orientation or gender, particularly in cases that involve discrimination against women”.135 This would seem to be a positive development, and indeed is one in relative terms, but the 1997 provision has two serious drawbacks, both of which are noted in the alternative report prepared by a group of Swedish NGOs. The first limitation is that, according to statistics, the provision has “rarely been applied”. The second and perhaps more fundamental problem is that “[b]enefits afforded under the category… fall short of those under the 1951 Refugee Convention relating to the Status of Refugees”. The NGOs felt that “an additional provision of this kind serves no constructive purpose. It can even be argued that a provision would impair equality in regard [to] asylum and protection, since the provision offers inferior protection compared to other, more favourable categories.”136 UNHCR has a clear standpoint on the issue. In its policy paper from 2000, the Office states that “[t]he refugee definition in the 1951 Refugee Convention […] has to be interpreted with such an understanding - in a gender sensitive way - in order for it to be properly interpreted”,137 i.e. including gender within the ambit of ‘a particular social group’ in the refugee definition. In UNHCR’s view, “[w]hile gender is not specifically referenced in the definition, it should be accepted that it can influence, or dictate, the type of persecution or harm suffered and that reasons for this treatment”. This doctrinal approach has been endorsed during the UNHCR Global Consultations process which resulted in the issuing of new protection guidelines.138 These guidelines call for inter alia procedural provisions to deal with the special needs of refugee women, and they stipulate that women are to be considered a ‘particular social group’ for the purpose of Article 1 of the 1951 Refugee Convention. UNHCR has consistently made this point to the CEDAW in relation to the Nordic countries and has raised this matter in its discussions with government counterparts. On the whole, refugee or other protection status is scarcely granted in the Nordic countries on the grounds of gender-based persecution. Although the 135

(U.N. Doc. A/56/38) para. 334. Report to the CEDAW with respect to Sweden’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (2001). 137 UNHCR Position paper, ‘Gender-related persecution’, (UNHCR, Geneva, January 2000). 138 ‘Guidelines on international protection: gender-related persecution within the context of Article 1A(2) of the 1951 Refugee Convention and its 1967 Protocol relating to the Status of Refugees, (UNHCR, Geneva, 7 May 2002). 136

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES Norwegian government published gender-related persecution guidelines in consultation with UNHCR in 1998, they have only exceptionally been implemented in individual cases by either the Directorate of Immigration or the Immigration Appeals Board. According to information received from the Norwegian Organisation for Asylum Seekers, asylum seeking women who risk being subjected to gender-related persecution are frequently rejected or only provided with subsidiary protection. Similarly in Denmark, the Danish Refugee Council has advised that the authorities are restrictive in cases where an asylum seeker fears persecution due to membership of a particular social group. In fact, the praxis appears to be that membership of a particular social group is not considered sufficient as an individual ground for refugee status. Notwithstanding what may appear an inconsistent approach to assessing gender-related persecution, statistics from January 2000 to February 2003 indicate that the second instance Danish Refugee Board decided 168 cases concerning fear of persecution due to ‘membership of a particular social group’, out of which 41 were granted de facto refugee status, 14 Convention refugee status and the rest a negative answer.139 Another issue of concern has been the frequent rejection of cases by the Nordic authorities regarding trafficked women. A large number of cases have been considered manifestly unfounded even where use of force has been alleged. Trafficking in women has generally been regarded as a criminal offence by the Nordic asylum authorities and therefore outside the scope of the Refugee Convention. This is despite UNHCR’s view that appropriate cases can support a claim to refugee status.140 As concerns the specific incorporation of ‘gender-related’ grounds as a basis for recognition of refugee status an obvious solution would be to amend the 1951 Refugee Convention. Yet enthusiasm for such a venture is substantially tempered by the seemingly insurmountable difficulties in gaining acceptance by states for any such change. Thus, the approach adopted by UNHCR of lobbying for a more holistic interpretation of the 1951 Refugee Convention is preferred.141 Arguably, there is a need for a purposive reinterpretation of the refugee definition as there is a strong case to be made that the very definition of a refugee in Article 1(A) of the 1951 Refugee Convention, as presently formulated, is discriminatory. In the words of 139

Statistical and related information received from the Danish Refugee Council in March 2003. 140 The ‘UNHCR Guidelines on International Protection: Gender-related persecution’ note that: “ . . . some trafficked women or minors may have valid claims to refugee status under the 1951 Convention. The forcible or deceptive recruitment of women or minors for the purposes of forced prostitution or sexual exploitation is a form of gender-related violence or abuse can that even lead to death . . . or can be considered a form of torture and cruel, inhuman or degrading treatment . . . In individual cases, being trafficked for the purposes of forced prostitution or sexual exploitation could therefore be the basis for a refugee claim where the state has been unable or unwilling to provide protection against such harm or threats of harm” para. 18. 141 Ibid.

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ROBIN LÖÖF AND BRIAN GORLICK Radhika Coomaraswamy, the former UN Special Rapporteur on Violence against Women, its Causes and Consequences, the 1951 Refugee Convention “fail[s] to provide for the particularities of women’s experiences as refugees, the most notable of which is the difficulties women face in meeting the legal criteria for persecution established by the Convention which is due primarily to the fact of their exclusion from public life”.142 A simple comparison can be made between the primarily male problem of being drafted to fight in a conflict which “manifestly violates international norms” for which refugee-status may be granted, and women fleeing genital mutilation for which, in the countries here under review, some kind of “in need of protection” status is granted.143 This runs counter to the current trend of including this type of gender-related persecution within the 1951 Refugee Convention definition prevalent in several industrialised countries. It is foreseen that with greater awareness of the plight of refugee women and specific gender-based forms of persecution, as well as proposed legislative changes in some of the Nordic countries they too will formally grant refugee status on gender-related grounds. However the question remains of when and how they intend to incorporate these changes.144 The CEDAW, quite commendably, often takes note of and expresses its concern over the fact that refugee women suffer from “double discrimination, based on both their sex and ethnic background”145 in areas such as “education and employment” and even from “gender-based discrimination and violence . . . in their own communities”.146 This is a difficult issue to address, but the fact that the task is a difficult one should not deter governments from acting decisively. In this connection 142

(U.N. Doc. E/CN.4/1998/54). This example is found in the document: ‘Refugee Protection – A Guide to International Refugee Law’, (UNHCR and the Inter-Parliamentary Union, Geneva, 2001). 144 It is especially noteworthy that in March 2004 an expert committee appointed by the Swedish government released a 150-page report entitled ‘Refugee Status and Gender-Related Persecution’ (SOU 2004:31) which recommends that persons seeking international protection as refugees on gender-related grounds should be recognised as such under Swedish law. The government will now review the report and it is expected that legislative amendments will be prepared to formally introduce gender-related claims within Sweden’s interpretation of the 1951 Convention refugee definition as adopted in the Aliens Act. This initiative, which is arguably long overdue, should establish a positive precedent for the Nordic region and Europe more generally. The report is available online at <www.humanrights.gov.se>. In the EU, the Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection (ASILE 52 – COM (2001) 510 final, as amended), as presently formulated, provides for the grant of refugee status under the 1951 Convention definition grounded on gender or sexual orientation related persecution. At the time of writing the Directive is still under negotiation by EU member states. 145 Quote taken from the concluding observations to Finland’s third and fourth periodic reports (U.N. Doc. A/56/38) para. 305. 146 Taken from the concluding observations to Sweden’s fourth and fifth periodic reports (U.N. Doc. A/56/38) para. 356. 143

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES the infamous ‘honour killings’ which have taken place in Sweden in past years (noted with concern by the Human Rights Committee)147 have brought home to governments the consequences of hiding behind an excuse of ‘cultural relativism’ and not taking forceful preventive as well as judicial action to guard against these tragic crimes taking place. An example of a positive practice in helping resettled refugees adapt to their new societies and thus facilitating integration generally is found in Iceland. The Icelandic authorities, in co-operation with the Icelandic Red Cross, matches native Icelandic and newly resettled refugee families, with the former assisting the refugees to integrate in their new environments. To date the main beneficiaries of the scheme have been refugee women. The objection that the proportionately much larger number of refugees in the other Nordic countries would make the running of such a system more difficult is not entirely valid as a reason for not moving in that direction. The Swedish media have reported on similar, spontaneous arrangements in small towns which have been very successful in integrating newly-arrived refugees. There seems to be no reason why these examples could not be promoted as policy approaches in other countries. As noted in the case of refugee children, women asylum seekers also require special reception procedures. UNHCR has highlighted the importance of providing training and information to personnel dealing with refugees so that they can recognise and deal with the specific needs of female asylum applicants. The importance stems from the fact that flight situations are experienced differently by women, and sometimes the type of persecution which causes the flight of a woman makes telling the story very difficult. A female asylum seeker can face particular difficulties in presenting her story, especially where it involves acts of sexual violence. In this context UNHCR has recommended a series of procedural requirements which should be instituted for dealing with asylum claims of refugee women.148 In its examination of periodic reports, the CEDAW has occasionally touched upon issues concerning the integration of refugee women. The Committee has noted that the authorities need to especially target refugee women with information regarding their rights and opportunities in the host country, lest the isolation referred to by the UN Special Rapporteur on Violence against Women perpetuates itself in the asylum country. For example, in its concluding observations to Denmark’s third periodic report the Committee expressed its concern over “[t]he inadequacy of culturally and gender-sensitive measures and programmes for immigrant and refugee women to enable them to benefit from legal and social services available in Denmark”.149 The CEDAW has also recommended that Iceland “intensify further its

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Concluding observations to Sweden’s fifth periodic report CCPR/CO/74/SWE). 148 See UNHCR Guidelines supra note 140, Section III (Procedural Issues). 149 (U.N. Doc. A/52/38) para. 263.

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ROBIN LÖÖF AND BRIAN GORLICK information programmes among migrant women, in particular those that pertain to the rights of women in Iceland”.150 In view of recent political developments in the area of refugee and migration policy in Europe, and in the Nordic countries in particular, the cautionary words of the Ms Coomaraswamy should be given close consideration: “strict antiimmigration policies, which reduce opportunities for legal migration and thereby encourage migrants to turn to third parties for assistance in migrating and to rely on false promises of legal migration, serve to provide an ever-growing number of clients to the increasing number of underground networks of immigrant smugglers.”151 The former UN Special Rapporteur pointed to a connection between restrictive immigration policies and trafficking in women, and stated that the phenomenon is “less likely to develop in situations in which opportunities exist for legal migrant work”.152 In the opinion of the Special Rapporteur it is imperative that “[m]easures designed to limit women’s legal entry into countries of destination should be carefully weighed against their disadvantages as they pertain to potential immigrants and women”.153 The CEDAW may wish to follow this reasoning and request that state parties make an express consequence analysis concerning the impact of such measures on immigration in general and migrant and refugee women more specifically. 6. Concluding comments As a sub-region the Nordics represent an important recipient of asylum seekers and refugees in Europe, and they remain important supporters of the international refugee regime and UNHCR. In addition to significant financial support, these countries account for about one-quarter of UNHCR’s standby arrangements for seconded staff for emergency operations, half the countries that establish annual resettlement quotas and virtually all of UNHCR’s protection-related emergency resettlement capacity world-wide. There are approximately 280,000 refugees and asylum seekers in the Nordic region. The common perception of the Nordic protection regimes is that they represent model asylum systems. There is much truth in this assertion as the Nordics’ overall grant of various categories of protection remains relatively generous. However things may be changing. Despite advances in linking refugee protection with human rights protection, global refugee policy in the developed world is seriously affected by two linked yet discernible trends. One of them is the growth of racism and xenophobia and the other is the preoccupation with security which was a fact even

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(U.N. Doc. A/51/38) para. 100. Report of the UN Special Rapporteur on violence against women, it causes and consequences (U.N. Doc. E/CN.4/2000/68/) para. 62. 152 Ibid. 153 Ibid., para. 111. 151

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES before the tragic events of 11 September, but which now seems to take priority over almost everything else in international relations. Gorlick has identified both of these concerns. He considers that “the alarming impact of racism and xenophobia on popular culture in Western societies” is central to any analysis of the “current state of international refugee affairs”.154 He cites Chimni who, much prior to 11 September, noted that a consequence of the “increasing involvement [of the UN Security Council and NATO] in refugee matters is that refugee protection will be ‘couched in the language of security’”.155 Another commentator, Ryszard Cholewinski, has noted that the importance of defending the cardinal principles of international refugee law such as the principle of nonrefoulement, “has become more pressing with the risks posed to established refugee principles by national and multilateral efforts to combat the threat of international terrorism”.156 The repercussions of these developments on refugee advocacy and human rights in general have not been lost on the institutional actors in the field. In his report to the 57th session of the UN General Assembly, Mr Maurice Glèbè-Ahanhanzno, special rapporteur of the Commission on Human Rights paints a grim picture: “Combined with the security measures designed to combat terrorism, the measures against immigration now give the impression that an iron curtain is falling between the North and the South of the planet.”157 The special rapporteur also noted the inhospitable climate with which human rights promotion and protection have had “to contend since the tragic events of 11 September 2001”.158 In November 2001, UNHCR issued a policy document entitled ‘Addressing Security Concerns without Undermining Refugee Protection’. UNHCR stated that while it “shares the legitimate concern of States to ensure that there should be no avenue for those supporting or committing terrorists acts to secure access to territory, whether to find a safe haven, avoid prosecution, or to carry out further attacks”, it nevertheless has two concerns: “that bona fide asylum seekers may be victimised as a result of public prejudice and unduly restrictive legislative or administrative measures, and that carefully built refugee protection standards may be eroded”. UNHCR concludes that “dealing with the terrorist threat in the context of asylum does not require amendment of the principles on which refugee protection is based, but should benefit from a review and tightening of procedural security

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Gorlick, ‘Refugee Protection’ (2003), supra note 2. Ibid. 156 Ryszard Cholewinski, ‘Protecting Human Rights in the Context of Developing EU Law and Policy on Immigration and Asylum and EU Accession’, (Centre for European Law and Integration, Faculty of Law, University of Leicester, UK), concept paper for the Regional Seminar on the Protection of Human Rights in the Context of Asylum Seeking and Migration, 25–26 April 2002, Tallinn, p. 17 (on file with the authors). 157 (U.N. Doc. A/57/70/Rev 1) para. 22. 158 Ibid., para. 8. 155

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ROBIN LÖÖF AND BRIAN GORLICK measures where necessary”.159 Indeed, Article 1F of the 1951 Refugee Convention excludes from protection persons undeserving of refugee protection, for instance serious criminals and terrorists.160 A more consistent use of the exclusion provisions is what UNHCR means when it speaks of tightening “procedural security measures”. At a time when some states are making calls for drastic measures to amend the international refugee regime in view of this perceived ‘new’ situation161, Joanne van Selm provides a useful clarification. She notes that although border-crossings by immigrants do constitute a security risk, finding the ‘terrorists’ among the honest immigrants is: “… a needle in a haystack search … Twenty of the border crossings into the US in 2001-2001 are known to have been made by terrorists. There are estimated to be 500 million border crossings each year. 20 out of 500 million: the odds of finding these people through the immigration system seem relatively small. And none of them were refugees or asylum seekers.”162

As opposed to tightening the asylum channel, as some states are doing, there is a strong case to be made for the proposition that facilitating access to the developed world through legal channels and a liberal policy of access to asylum determination in the West will have the added benefit of actually preventing the growth of terrorism since “many of the Taliban and al Qaeda members who turned to radicalism and terror campaigns learned their trade, and developed their hatreds within the confines of refugee camps in the developing world”.163 A point to be made is that increased security for the West must fairly address increased burdensharing with the developing world in relation to refugees. Finally, van Selm provides us with an appropriate endnote: “Ultimately, the real question is: do states want to sacrifice the right to seek and enjoy asylum and the principle of non-refoulement on the ‘combating terrorism pyre? If they are serious about fighting terrorism

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‘Addressing Security Concerns without Undermining Refugee Protection: UNHCR’s Perspective’, (UNHCR, Geneva, November 2001) p. 1, available online at <www.unhcr.ch>. 160 See ‘UNHCR Guidelines on the application of the Exclusion Clauses’ (4 September 2003), (UNHCR Doc HCR/GIP/03/05) available online at <www.unhcr.ch>. 161 See e.g. Mathew Paris, ‘This foolish Convention on refugees must be scrapped’, The Times, 29 June 2002; see also Alan Travis, ‘Shifting a problem back to its sources - Would-be may be sent to protected zones near homeland’;Seumas Milne and Alan Travis, ‘Safe haven plan to slash asylum seekers’, The Guardian, 5 February 2003. 162 Joanne van Selm, ‘Refugee Protection in Europe and the US after 9/11’, in N. Steiner et al. (eds.), Problems of Protection: The UNHCR, Refugees, and Human Rights, (Routledge, New York and London, 2003) pp. 238–239. 163 Ibid., p. 261.

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HUMAN RIGHTS LAW FOR ASYLUM SEEKERS AND REFUGEES and maintaining democratic, just and humanitarian principles, I would suggest that this is a sacrifice they should not make.”164

In the increasingly confused place the world has become after 11 September, it appears necessary to remind governments of their international legal obligations to protect and promote human rights, which include those of refugees. When this is forgotten, rash and ill-advised measures which undercut our civil liberties, and in the end do more harm than good, are adopted.165 Despite the increasingly difficult political climate which is challenging the institution of asylum, an approach which refugee advocates have been using with positive effect is to situate refugee protection within a human rights framework. Although some may argue that there is a creeping distrust of international legal principles being exhibited by some powerful states, it is the combination of strengths demonstrated by international refugee and human rights law which provides grounds for optimism that the rule of law and the institution of asylum can and should be maintained. In achieving the overall objective of promoting and maintaining high protection standards, the role played by the UN human rights mechanisms in raising concerns and making recommendations is of great importance. The attention by the treaty bodies and Commission on Human Rights-based mechanisms to human rights issues which affect asylum seekers and refugees not only complements advocacy by UNHCR, NGOs and other actors, but helps establish legal benchmarks and augments political pressure on states to comply with international protection standards. The importance of even-handedness, consistency and follow-up on the observations and recommendations of the UN human rights mechanisms should not be underestimated. Neither should it be taken for granted that states will willingly comply with maintaining high protection standards in an environment where the institution of asylum is being seriously questioned and, as some states would have it, may be subject to radical modification. This essay has surveyed the current state of play on key issues which affect asylum policies and practices in the Nordic sub-region. A short conclusion is that there is room for improvement, and it is suggested that the Nordic countries be held to high account for shortcomings in their asylum policies, laws and practices. Not only as they have historically considered themselves as being strong supporters of the international system of human rights protection, but also as they have equally strong traditions of granting asylum to persons in need. The ‘export value’ of the Nordics’ policies and practices in the asylum field should also not be underestimated. 164

Ibid. See e.g. the discussion on the UK Anti-Terrorism, Crime and Security Act 2001 in Adam Tomkins, ‘Legislating against Terror: the Anti-Terrorism, Crime and Security Act 2001’, wherein Tomkins’ notes that the “Act contains measures so coercive and draconian that the UK had to enter a formal derogation from Article 5(1) (i.e. liberty and security of the person; lawful arrest and detention) of the European Convention on Human Rights”, unpublished manuscript (on file with the authors), p. 2.

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ROBIN LÖÖF AND BRIAN GORLICK The sanctity of the global system of human rights protection, which includes refugee protection as an integral part, may experience further challenges in the present political climate. Thus far, refugees and foreigners are becoming the focus of more restrictive laws and practices in many states. To challenge these developments and maintain a law-based system of international refugee protection requires devoted, vigilant and principled attention by the principal institutions and other actors in cooperation with states themselves. The international refugee protection regime, as enshrined by the 1951 Refugee Convention and other international and regional refugee and human instruments, has served us well for over 50 years and millions of individuals have benefited from its provisions. It should continue to serve us well in the future.

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THE LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA Lauri Hannikainen* During the Cold War era Austria was a frontline country against the ‘Iron Curtain’. Refugees from Eastern European countries were welcome to Austria- they were political friends who had escaped to freedom. Otherwise, Austria was not a country of immigration. There were seasonal migrant workers but it was commonplace that they were to stay in Austria only temporarily and were to return to their home country after the agreed labour was done. This author experienced this phenomenon in summer 1964 when I was undertaking a language course in Salzburg. I had a nice room on the second floor; at least four Turkish workers lived in the basement in one room. 1. The 1990s When the socialist bloc of Eastern Europe began to collapse, there was a significant influx of asylum-seekers to Austria from those countries. Many newcomers, especially Polish and Romanian, took up illegal work; many applied for asylum in order to obtain a residence permit, and asylum was automatically granted. Before 1991, Austria had a fairly informal asylum seeking procedure. As the number of persons from Eastern Europe working illegally in Austria increased dramatically, in 1991 Austria introduced a rigid and severe asylum law. It limited quite effectively refugee status granted but it had elements of non-equitableness and unfairness. The new law did the job: the number of asylum-seekers dropped. However, war broke out in the neighbouring Yugoslavia. Austria did not close off its borders but received a notable number of refugees on temporary basis- some 80,000–90,000. During the Kosovo crisis Austria received 5,000–6,000 asylum seeking Albanians who were granted temporary asylum. *

Professor of International Law at the University of Turku (Abo) in Finland. He spent three months in spring 2003 as visiting scholar at the Institute of International Law and International Relations, the University of Graz; he was then Senior Researcher at the Northern Institute for Environmental and Minority Law, University of Lapland, Finland. He is member of the European Commission against Racism and Intolerance (ECRI) at the Council of Europe. This article has no direct connections to his membership at ECRI. He had no particular role in the preparation of ECRI’s second report on Austria and will have no particular role in the preparation of ECRI’s third report on Austria. His views in the article do not represent ECRI’s views. The author is grateful to Mag. (iur.) Christoph Weritsch (of the Graz Institute) for his advice and comments on the article at its draft stage. Whatever mistakes there are in the final text, the author bears full and sole responsibility for them. In spring 2004 the author received with shock and grief the news about the sudden death of Christop Weritsch, a kind and thoughtful young scholar. 289

LAURI HANNIKAINEN In 1997 new asylum and immigration acts were enacted. The declared purpose of the Asylum Act was continuously to limit the misuse of the asylum procedure while at the same time making the legislation more equitable. The Aliens Act severely limited immigration. A strict quota was created; at least a half of it was filled by persons in family reunion. For a person to apply for immigration, he/she had to apply from abroad. In the 1990s, Freiheitliche Partei Österreichs (FPÖ, Freedom Party) became internationally known because of the aggressive speeches of its leader, Jörg Haider. Haider used strong xenophobic terms in his speeches, speaking of the ‘Überfremdung’ [‘foreign infiltration’] of Austria, especially against asylum-seekers and non-Western migrants. FPÖ was in opposition throughout the 1990s. Thus, the responsibility for the asylum and immigration policy was carried by the leading mainstream parties, the Volkspartei (ÖVP, People’s Party) and Sozialdemokratische Partei (SPÖ). The general atmosphere in Austria was anti-asylum and antiimmigration. The thinking went as follows: ‘They take advantage of us and commit many crimes’. This atmosphere was favourable to FPÖ which put pressure on the government. In face of the general atmosphere and fear of losing votes to FPÖ, ÖVP and SPÖ applied a tight policy on immigration and asylum. 2. Some Basic Facts about Asylum Seeking and Migration to Austria in Recent Years In a European comparative perspective the number of persons of alien origin in Austria is among the highest. Over 9 per cent of Austria’s population are of alien origin, most of them refugees from the eastern part of Europe. Austria received the highest per capita number of refugees from the war-torn former Yugoslavia of any EU member State.1 Whereas the number of asylum-seekers after the first years of the 1990s sank during most years below 10,000, since 1999 it has been over 20,000 and appears to be increasing. In 2002 the number of asylum applications exceeded 37,000. Since the present possibilities of migration for people other than family members of persons already living in Austria or highly-skilled experts are small, many persons wanting to migrate apply for asylum. It is a widely shared view in Austria that most asylum-seekers are actually seeking migration to Austria or other Western countries. The atmosphere is anti-foreigner: ‘we have taken our share of the refugee flow’. If a person’s primary motive to seek asylum is economic, his/her chances to succeed are small. A great majority of asylum applications in recent years have been terminated without final decision by asylum authorities. A role here is played by the poorly organized care system of asylum-seekers (shelters, etc.). Many asylum-seekers 1 See the report by an expert group organized by 14 EU member States to consider the advisability of whether to continue or discontinue boycott measures against the Austrian Government issued on 8 September 2000 in Paris (report of the so-called three wise men), which can be found in International Legal Materials, Vol. XL, 2001, pp. 108-110.

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA ‘disappear’: either they leave Austria, since they cannot survive in Austria, or they are simply not found due to lack of pertinent address. Evidently most asylum-seekers arrive in Austria illegally, most of them across the borders outside official check-points (in order to avoid border controls and apply for asylum once in the country). The Migration News Service reports that in 2001 the number of illegal entries to Austria was estimated to be over 48,000, an all time record figure.2 The authorities have difficulties in determining their routes. If a person has arrived illegally and has no identity papers and refuses to cooperate, the authorities have a dilemma: they want to deport him/her but do not know where to deport him/her to. 3. Austria’s International Obligations The 1951 Refugee Convention (together with its 1967 Protocol) has for a long time been in need of updating but that has proven to be impossible. A considerable part of the Convention concentrates on the rights of a refugee, i.e. a person who has been granted refugee status. However, a great majority of asylum-seekers do not receive any formal refugee status. The Convention has only a few provisions which appear to be clearly applicable to asylum-seekers, such as the prohibition of discrimination (Article 3) and the prohibition of refoulement (Articles 32 and 33 – the nonrefoulement principle3). Austria appears to treat people properly who have been granted refugee status. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of everyone to the fulfilment of his/her basic needs such as nourishment, shelter and health care. Under Article 2 of the Covenant each State Party undertakes to take steps to maximise its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means. The Article also states that these rights have to be ensured without discrimination. It seems clear that a State Party’s obligations under the ICESCR apply to all those persons who reside legally in its territory. The Convention on the Rights of the Child establishes obligations for States in their treatment of asylum-seeking children and children without parents. Article 22 stipulates that the parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law shall, whether unaccompanied or accompanied by his or her parents or any other person, receive appropriate protection and humanitarian assistance in the enjoyment of the rights set forth in the Convention and in other international human rights or humanitarian instruments to 2

See Migration News Sheet, March 2002, p. 6. The Refugee Convention does not treat the non-refoulement principle as an absolute principle. At present the non-refoulement principle of the European regional law prohibits in absolute terms the deportation of a person to a country where he/she would be in danger of being subjected to torture or inhuman or degrading treatment or punishment or to capital punishment. The Austrian Aliens Act of 2002 is adequate in this respect, see Article 57.

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LAURI HANNIKAINEN which the said States are parties. For this purpose, the parties shall provide cooperation with international and non-governmental organizations in order to protect such a child and to trace his or her parents or other members of the family in order to obtain information for the reunification of his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason. Austria is also a party to the Dublin and Schengen Conventions, which have been prepared within EU. They create the notion of ‘safe country’ which means that all EU member States are, in asylum matters, regarded as safe countries. When a potential asylum-seeker arrives to the EU area, the first EU Member State entered by him/her is responsible for handling his/her asylum application. Austria is still one border country of EU towards the external world, but from 2004 its only external border is that with Switzerland and Leichtenstein. Thus, it has increasing possibilities to return asylum applicants to other EU countries having external EU borders.4 UNHCR has prepared guidelines and standards for States in their treatment of asylum-seekers and in their handling of asylum applications. However they are not binding. Since UNHCR is the international spokesperson of asylum-seekers and refugees, the Austrian Government feels that UNHCR is pursuing a legal policy too much in favour of asylum-seekers. There is no regional European convention on asylum. The Council of Europe has published guidelines. The practice of European States in many asylum-related matters is far from unanimous and does not manifest any well-developed practice with fair forms of treatment. This applies to EU members and other western European States as well. A most recent European instrument may prove to be of greater significance – the 2003 EC (EU) Directive laying down minimum standards for the reception of asylum-seekers. 5 The word ‚reception’ includes the handling of asylum applications. The Directive is, indeed, a collection of minimum standards and as such not very far-reaching. However, it can be expected to cut off at least the most unfair practices in the member States. 4

There should be reasonableness in the reception of asylum-seekers among EU Member States: rich western Members should not push too much responsibility on the shoulders of the new eastern Members. However, Phuong makes the following assessment: “Candidate countries are becoming increasingly nervous about accession as they have realised that asylum and immigration are being instrumentalized by EU member States in order to establish a filter or buffer zone between them and the countries of emigration. With EU accession, the responsibility for ensuring border controls, tackling illegal immigration and dealing with asylum-seekers will fall disproportionately on candidate countries which do not have the same financial and human resources. So far, these countries have been so keen to gain EU membership that they have agreed to adopt most measures.” Catherine Phuong, ‘Enlarging ‘Fortress Europe’: EU Accession, Asylum, and Immigration in Candidate Countries’, 52 International and Comparative Law Quarterly (2003) p. 664. 5 Directive 2003/9/EC, accepted by the Council on 27 January 2003.

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA Article 3 defines the scope of the Directive, excluding persons who are not allowed to remain in the territory of a State as asylum-seekers. Thus, if a person is prevented at the border from entering the territory of the State, the Directive is not applicable to him/her. Article 11 deals with employment: Member States shall determine a period of time during which an applicant shall not have access to the labour market, but if a decision at first instance has not been taken within a year, and this delay is not attributable to the applicant, a Member State in question shall decide the conditions for granting access to the labour market for the applicant. This provision does not establish for States any strict obligations to permit access to the labour market, but it obligates after the intermission of one year to have a set of ‘rules of the game’ leading to the labour market. States are also encouraged to speed up their asylum procedures. Article 13 deals with the obligations of States in the field of material reception conditions and health care of asylum-seekers and is, as shall be seen later, very relevant for Austria. Member States shall make provisions on material conditions to ensure the standard of living is adequate for the health of applicants and capable of ensuring their subsistence, giving particular consideration to persons with special needs and those in detention. However, the article permits that Members may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. If an applicant has sufficient means, the State may require him/her to contribute to the costs – even afterwards. Article 14 gives detailed stipulations on the provision of housing conditions. Article 16 deals with the withdrawal of reception conditions and the subsequent articles deal with persons with special needs like minors. Article 21 sets one of the basic legal guarantees to asylum-seekers: Member States shall ensure that negative decisions relating to the granting of benefits under the Directive which individually affect an asylum-seeker may be subject to an appeal within the procedures laid down in the national law. “At least in the last instance the possibility of an appeal or a review before a judicial body shall be granted.” Unfortunately, the subsequent paragraph leaves too much leeway for States: “Procedures for access to legal assistance in such cases shall be laid down in national law.” There is no strict obligation to ensure access to legal assistance to everyone in concrete need of it. Article 26 obligates the Member States to bring into force the laws and regulations necessary to comply with the Directive by 6 February 2005. When the Member States adopt these measures, they shall contain a reference to the Directive or be accompanied by such a reference on the occasion of their official publication. Members shall communicate to the Commission the text of the provisions of national law which they adopt to enforce the Directive. Article 25 calls for the Commission to report to the European Parliament and Council on the application of the Directive and shall propose any amendments that are necessary. Member Sates shall send the Commission all the information that is appropriate for drawing the report by February 2006. 293

LAURI HANNIKAINEN The Directive only became applicable in 2005. However, it is relevant to assess whether the pre-Directive Austrian laws and practices meet the standards of the Directive or whether amendments appear to be necessary. 4. Some Main Features of Austrian Asylum Laws and Practices at the End of the 20th Century It is not my purpose to endeavour to give any comprehensive picture on the laws and practices but to point to evident positive and negative factors. The existing Asylum Act is from 1997; there have been some amendments in later years.6 Among positive factors I mention the following:7 -

The final result for most of those who were to be taken as serious asylum applicants may well have ended up in a positive decision. This was especially due to the existence of the appellate body, the Independent Federal Asylum Review Board (UBAS). The right of asylum-seekers to appeal to the Board is relatively broad. UBAS began its operation in 1998 and is regarded as a competent and independent organ. It and the highest court in asylum matters, the Higher Administrative Court, have interpreted the Refugee Convention in a reasonably liberal way. To give examples: 1) A Chechen should be given refugee status because internal refuge in Russia is very difficult for a Chechen. 2) A Russian woman received refugee status because the Russian State may not be able to protect its citizens from organized criminal gangs. 3) An Afghan woman received refugee status, because the Taliban regime had ordered her father to arrange a marriage with a Taleb. 4) A non-Albanian refugee returned to Kosovo but was harassed by Kosovo-Albanians. The international government appeared to be unable to protect the person in question from assaults motivated by ethnic reasons.8

-

Beside conventional refugee status, Austria has granted residence permits on humanitarian grounds, temporary residence permits and temporary protection. During the Bosnian war and Kosovo war Austria received a considerable number of refugees from the war-torn areas on a temporary basis.

6

In English the text of the Act with the later amendments can be found in Council of Europe (CoE) doc. MMG-7 (2002) 10. 7 See UNHCR, Reception Standards for Asylum-seekers In the European Union (Geneva, July 2000); Fabrice Liebaut, Legal and Social Conditions for Asylum-seekers and Refugees in Western European Countries (Danish Refugee Council and European Commission, May 2000); Study on Austria carried out by PLS RAMBOL Management on Behalf of the European Commission, 2001. 8 See European Council on Refugees and Exiles (ECRE) Country Report 2001: Austria at <www.ecre.org>.

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UNHCR has had quite a significant role in asylum procedures. Austrian authorities informed UNHCR regularly on ongoing handling of asylum applications. Regarding applications filed at an airport in Austria, they could be dismissed on ‘manifestly unfounded’ or ‘safe third country’ grounds only with the consent of UNHCR.

-

Asylum-seekers who entered Austria legally were automatically granted a temporary residence permit for the entire period during which their application for asylum was being processed. Asylum-seekers who entered illegally were granted a temporary residence permit unless their application was determined to be manifestly unfounded.9

-

The Asylum Act points out that the provisions of the Refugee Convention shall remain unaffected (Article 43).

Among negative factors I mention the following: -

The most evident negative matter was the insufficient care, especially accommodation and to a lesser extent medical care, granted by the authorities to asylum-seekers. This matter will be taken to a detailed examination later in this article. This insufficient care causes many related problems.

-

The persons who wanted to submit their asylum application at a frontier crossing point were in many cases prevented from entering Austria. They were told to wait abroad for the handling of their application. However, if they were permitted to stay in the border area, their possibilities to get fair treatment were insufficient.

-

Legal aid offered by the State to asylum-seekers was very limited. Mostly they had to seek aid from NGOs but they did not always have the possibility to do so.

5. Overview of the First Years of the 21st Century Since the Asylum Act has remained unaltered since 1999 (until 2004), most of the positive and negative factors mentioned in the previous section are still applicable. This section and sections 6-7 discuss what modifications and new developments took place during 2000–2003.

9

One important reason for regarding an application manifestly unfounded was the refusal of an asylum-seeker to cooperate in the establishment of the material facts of the case, see Article 6 of the Asylum Act. An increasingly important ground for declaring an application manifestly ill-founded was a person’s arrival from a ‘safe country’.

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LAURI HANNIKAINEN 5.1 ÖVP-FPÖ Government and Power-sharing Within it When in January 2000 it was learned that ÖVP, the leading conservative party in Austria, planned to enter into governmental power together with FPÖ, which in Europe was regarded as a xenophobic and extremist right-wing party, many governments of EU member States gave a warning to ÖVP. If ÖVP were to agree to establish a government with FPÖ, the new government would face unfriendly measures from the side of these EU governments. Notwithstanding warnings, the ÖVP-FPÖ (black-blue) government was established in February. The reaction of the fourteen other EU members came rapidly: they resorted to unfriendly measures towards the ministers of the new government and to certain fairly mild boycott measures. However, the boycott policy of the fourteen EU members proved to be problematic. To get out from the impasse these governments initiated the establishment of an expert group to examine whether the new Austrian Government acted in accordance with European values. The group came to a positive conclusion even though it severely criticized FPÖ’s political ideologies as such. The fourteen decided to put an end to their boycott measures in the autumn of 2000. One theme to be examined by the expert group was the black-blue Government’s treatment of refugees and asylum-seekers. The group concluded that the legal situation of applicants for asylum was similar to that in other EU States; the new government continued Austria’s traditionally open policy towards refugees. In Austria, as in other European countries with plenty of refugees, such a refugee rate has created problems of social integration. “We have, however, not discovered that the new Austrian Government has deviated from the principles followed by its predecessors.” However, the group identified certain problems in specific areas.10 Even if the expert group’s analysis on asylum-seekers is short and therefore fairly superficial, the group could lean on the fact that the leading figures in asylum matters, Minister of Interior Mr Strasser and the Federal Chancellor Mr Wolfgang Schüssel, are from ÖVP and not from FPÖ. Thus, the leadership in asylum matters is clearly in the hands of ÖVP, which is a respectable European party. FPÖ has played a secondary role but certainly its demands on more stringent asylum policy have been heard by ÖVP. Another matter giving support to the group’s approach was the declaration signed by the leaders of ÖVP and FPÖ upon the demand of the President of Austria, Mr Thomas Klestil, ‘Responsibility for Austria – A Future in the Heart of Europe’. The declaration which was signed at the time of the establishment of the new government emphasized the will of the government to respect and promote European values and to fight against racism, anti-Semitism, xenophobia and intolerance.11 The declaration of the second black-blue government, established in March 2003, states in clear terms that Austria remains a land of asylum to all of those who are in real need of it, but the seeking of asylum with 10 11

Supra note 1. See <www.bmaa.gv.at/presservice/statish/200-02-03-regierung.html.en>.

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA economic motives will fail. Asylum and migration are two different matters.12 However, reality is often much harsher than what declarations say – both in Austria and in many other countries, too. 5.2 Austrian Asylum Policy in Light of the Comparative European Perspective In European comparative perspective Austria’s asylum policy does not single out as something extraordinary or peculiar. Christoph Weritsch, an expert on asylum law at Graz University, estimated in March 2003 that during the reign of the black-blue government no clear qualitative change in the Austrian asylum policy can be identified.13 It remains fairly strict, and the Ministry of Interior is trying to develop new means to make this policy to operate more efficiently, for example, handling asylum applications faster. This seeking of more efficiency does not necessarily- and often does not- mean a more friendly policy towards asylum-seekers. When one studies the present Austrian system of asylum, one can find many similarities with many other European States. One contemporary European game is the game of the ‘lowest common denominator’. Austria, like many other States, guards jealously that it is not more appealing to asylum-seekers and migrants than any other Western European States are. This approach calls for constant vigilance in following developments in other States and preparations for a tougher and stricter asylum policy. International organizations try to uphold better standards but many of them lack factual powers to do so. The EU appears to be the international organization that can most effectively establish obligations on its member States. However, many of its documents, especially those of the Council, have the tone of the least common denominator. Many matters relating to asylum-seekers appear to be quite complicated to be regulated on the EU level. In any case, EU and other international organizations have formed a counterweight to many individual countries’ increasingly tough policies. One key notion in the tightening of the asylum policy is that of safe countries. Austria has been extending the list of safe countries. Austria’s starting point is that all States which have ratified the 1951 Refugee Convention and the European Convention on Human Rights and its 11 Protocols, are safe countries. However, the Asylum Act requires a more detailed examination on these countries: do they regularly afford asylum-seekers effective protection against persecution; are the applications handled individually; is there the right to appeal; can the asylumseekers remain on the territory of the State in question until the decision of the reviewing authority has been made or the decision of the authority has become final?14 The applications of those asylum-seekers who have entered Austria from the territory of a safe country can be rejected in a speedy procedure as manifestly unfounded. In the EU context, it is the first EU member State entered by an asylum12

Österreichische Regierungserklärung, 6. März 2003, see <www.austria.gv.at>. Interview on 12 March 2003 at Graz University. 14 See Article 4 of the 1997 Asylum Act. 13

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LAURI HANNIKAINEN seeker who has the responsibility to handle the application. If he/she has continued to another EU State and submits an asylum application there, this State shall not handle the application but shall return him/her to the first EU country entered by him/her. (In Austria another key factor is the restricted social care offered by the authorities to asylum-seekers, as will be seen below.) A telling example of the tightening of Austria’s asylum policy is the following: It was possible for an asylum-seeker to lodge an application in Austrian embassies abroad. In 2001 over 5000 Afghans applied for asylum in Austria at the Austrian embassies in Pakistan and Iran. Nearly all of these applications were rapidly rejected, because Pakistan and Iran were considered as safe third countries for Afghans.15 The rightfulness of this result, without individual consideration of applications, may be doubted. In addition, the black-blue Government has made it known that the right to lodge asylum applications in Austrian embassies abroad is no longer operative.16 The Government can argue that Austria has no international obligation to permit asylum applications via its diplomatic missions. It is permitted only by a minority of States and has not become a general European practice. That Austria’s asylum policy does not go much below the European average, is thanks to, besides NGOs, certain legal organs, especially the Independent Federal Asylum Appeals Board (UBAS) and the courts, including the Constitutional Court. The Board has treated individual applications in a fair way and the courts have prevented certain excesses in the asylum policy. Unfortunately, UBAS is seriously overburdened by an increasing number of appeals.17 Here are a few examples of the decisions of UBAS from 2002. UBAS granted asylum to a woman who had fled from Cameroon in order to avoid genital mutilation. It concluded that the applicant had a well-founded fear of persecution on account of her membership of a particular social group. In another case asylum was granted to a girl from Ethiopia. She was of Eritrean origin, had a baby and was single. In the view of UBAS, the social and economic situation of such a single woman returning to Ethiopia would constitute discrimination or even persecution.18 There is also an expert Human Rights Council (Menschenrechtsbeirat) advising the Ministry of Interior in its asylum policy, especially regarding the human rights aspects.19 Erwin Felzmann, president of the Council (and former president of the Highest Court) has recently strongly criticised the Minister of Interior, Mr Ernst Strasser. He stated that the Council has sent 116 recommendations to the Ministry of Interior, but only 20 have apparently been implemented. This was disputed by the Ministry which claimed that all of the recommendations, with the exception of two,

15

See Migration News Sheet, December 2001, p. 10, and Asylkoordination aktuell, 3/2002, pp. 21–23. 16 See in more detail Asylkoordination aktuell, 1/2002, pp. 26–30. 17 See Tätigkeitsbericht 2000/2001, <www.ubas.gv.at>. 18 See ECRE Country Report 2002: Austria at <www.ecre.org>. 19 See the annual Bericht des Menschenrechtsbeirates beim Bundesministerium für Inneres über seine Tätigkeit in den Jahren 1999-2000 , published by the Ministry of Interior.

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA have been implemented.20 It appears certain that the highly-esteemed president of the Council does not make statements like this in public for no reason. The Constitutional Court and a regional administrative court have in 2001–2002 given judgments which reject the Austrian policy of imposing fines on airline carriers which brought asylum-seekers to Austria without acceptable identity or travel documents. These courts consider that airline functionaries do not have enough time, equipment and competence to make reliable check-ups of travel documents.21 The Government’s initial reaction to these judgments has been that the Government tried to modify the law so that it would be possible to implement its initial purposes- in a refined way, though. 5.3 Numbers It is difficult to give telling numbers of percentages of accepted asylum applications. Even to give them would give an inadequate picture overall, since most asylum applications are terminated for various reasons without any final decision given. Why are so many terminated? According to the European Council on Refugees and Exiles (ECRE), the main reasons are discontinuation owing to the asylum-seeker’s absence (in 2002 over 20,000), applications from abroad closed as being no longer relevant (nearly 2,000), and withdrawal of applications (about 2000).22 The discontinuation on the basis of absence is connected to the denial of social care during the handling of an asylum-seeker’s application. If an asylum-seeker does not receive adequate care, he/she may have no stable address and cannot be reached in due time – or he/she leaves Austria. In 2000 there were over 18,000 asylum applications, in 2001 slightly over 30,000 and in 2002 about 39,300. The high rise of applications in 2001 was mostly due to the sharp increase of applications by Afghans, many applications sent from Austrian embassies abroad; in 2002 there were increasing numbers of applications from several countries.23 ECRE reports that of the handled circa 8,400 asylum applications in 2000 some 1,370 received a positive decision. In 2001 the corresponding numbers were circa 7,170 and 1,320. Most of the positive decisions granted asylum according to the Refugee Convention. In 2002 the numbers were as follows: 1,073 applicants were granted asylum and 300 were granted temporary permission to stay on the ground of non-refoulement, whereas 4,285 applications were rejected.24 In my opinion, from the Austrian Government’s perspective the present numbers of annual acceptances should be regarded as ‘reasonably low’. 20

See Migration News Sheet, June 2003, p. 12. See Migration News Sheet, December 2001, pp. 9–10, and February 2003, p. 12. 22 ECRE Country Reports 2001 and 2002: Austria, at <www.ecre.org>. 23 See ibid. 24 See the Austrian Ministry of Interior’s home page at <www.bmi.gv.at>. About 15,200 temporary permissions of stay were granted to such persons whose asylum applications were still pending. 21

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LAURI HANNIKAINEN 5.4 ECRI’s Assessment The European Commission against Racism and Intolerance (ECRI) published its second report on Austria in April 2001. ECRI expressed general concern for the negative climate of public opinion towards non-EU citizens, notably immigrants, asylum-seekers and refugees. The widespread presence in public debate of stereotypes and misrepresentations regarding these categories of people has played a primordial role in creating such a climate. Typically, these categories of people are held responsible for unemployment, street crime, social security abuses and increased expenditure on border control and internal security budgets. Immigration and asylum policies appear to be increasingly inspired by a conception of the foreigner as a danger for public order, economic stability and social peace. ECRI paid particular attention to the role of FPÖ: “the participation in the current governmental coalition of a political party which has resorted to explicitly xenophobic and intolerant propaganda cannot but be of serious concern to ECRI”. ECRI’s report points to the negative climate of opinion in the formation of which FPÖ as an opposition party had a notable role. Of more concrete problems ECRI singles out inadequate federal care to asylum-seekers, excessive violence during deportations, and ill-treatment of asylum-seekers during police operations.25 6. Social Care of Asylum-Seekers in the First Years of the 21st Century According to a 1991 federal law regulating the provision of federal care to asylumseekers, only needy asylum-seekers may be eligible to federal care and maintenance until the final termination of refugee determination procedure. This care is under the responsibility of the Ministry of Interior and includes accommodation, food, medical care and pocket money, as well as other necessary measures of assistance. The eligibility criteria are very strict: on average, only about 30 per cent of asylumseekers are granted federal assistance. The decision to grant or deny federal care is discretionary. Since there is no enforceable right to receive assistance, asylumseekers have no legal remedy against a refusal. To get a positive decision a seeker has to prove his/her identity as well as the real need for help.26 Pregnant women, babies and handicapped persons usually receive federal care. Those granted federal care are offered accommodation primarily in reception centres, and secondarily in hotels, hostels and ‘care centres’. It is the plan of the Federal Government that some asylum-seekers would be offered care by federal authorities and another sector by the Länder. However, no agreement has been reached between the Government and the Länder [states]. The Government has drafted a (non-binding) quota for different Länder but only a few of

25

ECRI’s Second Report on Austria, Council of Europe Doc CRI (2001) 3, para. 20. See Fabien Liebaut (ed.), Legal and Social Conditions for Asylum-seekers and Refugees in Western European Countries, (Danish Refugee Council and European Commission, May 2000) pp. 18–19. 26

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA these fulfil their quota.27 In this analysis the care offered by the Länder is treated as a part of federal care. Asylum-seekers not granted care by the Federal State or Länder are left to fend for themselves. Many receive assistance either from NGOs, relatives and countrymen, in some cases from municipalities; some have resources to arrange private accommodation for themselves. Since the resources of NGOs are limited, many asylum-seekers are left without any care. The International Helsinki Federation for Human Rights (Helsinki Federation) estimated that in 2002 one-third of asylum-seekers in Austria received federal care, one-third received assistance from NGOs and the remaining third was without any support at all.28 The ground leading automatically to denial of federal care for asylum-seekers is the notion of ‘safe countries’, which in this context is broader than the same concept in the determination of acceptance or rejection of asylum applications. The number of safe countries has increased in both contexts in recent years. In the present context the list of safe countries includes all ‘Western’ countries and most other European countries. Then there is a list of (half-safe) countries with partial denial of federal care: if the first instance has rejected an application of a person coming from those countries, his/her federal care comes immediately to an end. This list includes Albania, Armenia, Azerbaijan, Georgia, Macedonia, Nigeria, Russia, Turkey, and Yugoslavia (Serbia and Montenegro). There are exceptions regarding Russia and Turkey: the denial is not applicable to the Chechens in Russia and the Kurds living in certain areas in Turkey. However, even for persons coming from ‘fully safe countries’ exceptions are possible if a person’s physical state urgently requires care.29 Applicants coming from half-safe countries have to give unequivocally convincing proof in order to be able to enjoy continued federal care, if the first instance has rejected their application. Countries definitely regarded as unsafe include Afghanistan, Iraq, Iran and those countries of Africa which are devastated by civil wars. Kosovo is also included on this list. UNHCR and NGOs have expressed dismay regarding the Ministry of Interior’s handling of federal care in practice. When new States were added in the list of halfsafe countries in October 2002, the outcome was a drastic expulsion of several hundreds of asylum-seekers from federally arranged accommodation. The Migration News Service reported that in August 2002 there were about 2000 asylum-seekers in the main reception centre of Traiskirchen, but by November their number had sunk

27

See Asylkoordination aktuell, 3/2000, pp. 4–9, and Migration News Sheet, October 2000, p. 13. 28 International Helsinki Federation for Human Rights, Human Rights in the OSCE Region, Report 2003 (Events of 2002), Vienna 2003, p. 43 (OSCE Region Report 2003). See also Asylkoordination aktuell, 2/2002, pp. 21–25. 29 See Sebastian Schumacher, Fremdenrecht (Wien, 2003) pp. 225–229. This book includes detailed information on the law in force, including the texts of many provisions of laws and regulations on foreigners.

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LAURI HANNIKAINEN to about 800.30 According to Helsinki Federation, hundreds of people were evicted from the shelters onto the streets, immediately filling emergency accommodation set up by relief organizations.31 Another negative example comes from the state[MJO1] of Carinthia, the state governed by FPÖ and its strongman Jörg Haider who is the Governor of Carinthia. When the Ministry of Interior informed the Carinthian authorities that federal care was to be terminated for a group of about 40 asylum-seekers placed in Carinthia, the Carinthian authorities chartered a bus and sent the group to Traiskirchen to be taken care of by federal authorities. The brutal measures taken in this operation raised a lot of criticism. Children were grabbed from school by the authorities. The Carinthian authorities explained to the group that Carinthia has no money for their care.32 Let us have a closer look at the situation of unaccompanied asylum seeking children. The Helsinki Federation reported on the year 2001 as follows: “The number of unaccompanied minors who seek asylum has dramatically increased in the past few years. Only about one third of them were taken care of by the State, others had to rely on NGOs for assistance. Even minor asylum-seekers from Afghanistan were not necessarily granted asylum.”33 However, a year later the Helsinki Federation reported on positive development: About 80 per cent of unaccompanied juvenile asylum-seekers could be taken care of by the newly established system of clearing houses. These are special accommodation and care centres for unaccompanied child asylum-seekers in six houses across Austria. They are run by NGOs with funding from the European Refugee Fund, the Ministry of Interior and local authorities. They are intended to give the minors the possibility to rest, to receive medical and psychological examinations, and to look for further housing and care possibilities. The main problems are the lack of institutions where the minors can stay after leaving the clearing houses.34 It is evident that the Austrian authorities are able to select as recipients of federal care most of those who are in great need of it and/or are genuine asylumseekers and not persons wanting to migrate to Austria primarily for economic reasons. However, the Austrian system guarantees no fair result with any certainty. The decisions on federal care are made at a rapid pace and they cannot be appealed. It is far from certain that an asylum-seeker obtains adequate information and advice 30

See Migration News Sheet, December 2002, p. 12. According to Agence France Press the Administrative Director of Traiskirchen, Gerhard Jenek stated that “Armenians, Azerbaijanis, Georgians, Turks, Macedonians and Yugoslavs are now sent directly back to their homelands”. 31 OSCE Region Report 2003, p. 43. 32 Profil, 10 März, 2003, p. 46. 33 OSCE Region Report 2002, p. 36. However it should be noted that unaccompanied minors automatically receive a legal representative in Austria according to Article of 25 the Asylum Act. 34 Asylkoordination aktuell, 3/2001, pp. 39–42, and OSCE Region Report 2003, 43–44. See also <www.asyl.at/umf/> and Heinz Fronek and Irene Messinger (eds.), Handbuch Unbegleitete Minderjährige Flücthtinge (Wien, 2002).

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA in that short period of time. It seems inescapable that the Austrian Government calculates that with this system many of those asylum-seekers who are not granted federal care will leave for other European countries or are not accessible at the time their interview eventuates.35 This would lead to the interruption (and eventual noncontinuation) of consideration of their asylum application. Practice proves that the calculations of the Government are correct – many asylum-seekers who do not receive federal care ‘disappear’.36 International organs have criticized Austria’s care system. The Committee on the Elimination of Racial Discrimination (CERD) recommended to the Government to ensure the provision of basic and equal assistance to all asylum-seekers, without distinction as to race or ethnic and national origin.37 ECRI points out that the Austrian authorities should ensure that asylum-seekers are not left in destitute condition while awaiting the examination of their asylum claims and stresses that poor conditions may reinforce prejudice, stereotypes and hostility towards such individuals.38 The expert group organized by the fourteen EU members to review the policy of the black-blue Federal Government points out that there is no effective remedy if an applicant is denied federal care and the present system has led to a considerable number of applicants being homeless.39 UNHCR has regularly criticized the deficiencies of the existing system but the Government has turned down the criticism. It appears that the Government has turned a deaf ear to criticism by respectable international organs. The same seems to apply to the Human Rights Council of the Ministry of Interior which has reminded the Ministry of Austria’s international obligations under human rights conventions, including the ICESCR which clearly obligates the States Parties to take positive measures to ensure the rights of the Covenant to everyone without discrimination.40 According to a report published by the European Training Centre at Graz University, Austria together with Italy, is one of the few countries in Europe which only grants limited support to asylum-seekers on a discretionary basis. 41 It is clear that in a comparative Western European study on public care systems the Austrian system is far below the average.42 It is not necessary that care to asylum-seekers is arranged by the State itself and the public authorities. It is also possible for it to be run by NGOs with adequate 35

See OSCE Region Report 2003, p. 43. See Asylkoordination aktuell, 4/2002, pp. 30–32. 37 Concluding Observations on Austria, 21 May 2002, UN Doc. (CERD/C/60/CO/1). 38 ECRI’s Second Report on Austria, Council of Europe Doc CRI (2001) 3, para. 20. 39 Supra note 1. 40 Stellungnahme der Menschenrechtsbeirat zu den Richtlinien des Bundesministerium für Inneres für die Bundesbetreuung hilfsdürftiger Asylwerber, 22. Jänner 2003. 41 Christoph Weritsch et al., Refugee Contribution to Europe, A feasibility study on the establishment of a ‚Fund for Refugee Employment and Education (FREE) in the European Union’: Austria (Graz, November 2002), p. 14. 42 Reception Standards For Asylum-seekers in the European Union (UNHCR, Geneva, 2000) pp. 26–28. 36

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LAURI HANNIKAINEN public funding. In Austria NGOs have had an important role in the care of asylumseekers and they have received partial funding from the State. The Austrian Government is interested in examining the possibilities to increase the role of the non-public sector in running the care system. However, it is most interested in offering the care system to profit oriented organizations like European Homecare (from Germany) which would organize the care without ‘excessive’ altruistic considerations. European Homecare has on several occasions won the acceptance of the Government over the applications of Austrian charitable and pro-human rights NGOs. European Homecare is commissioned by the Ministry of Interior to provide advice on voluntary return to asylum-seekers in reception centres (and elsewhere). The Ministry expects that the information given to asylum-seekers by European Homecare encourages asylum-seekers to return by giving them a gloomy picture on their possibilities to receive a positive decision.43 In mid-2003 European Homecare took over the organizing of care to 1500 asylum-seekers who have been granted federal care. European Homecare’s offer was EURO 12.9 per person per day; the offer of a consortium of experienced Austrian NGOs was EURO 14.44 Asylum-seekers receiving no care face many extra problems. It is difficult for NGOs to contact them and they may not know of their rights. Their possibilities to make appeals and complaints are less than those who receive care. In 2003, the Supreme Court (Oberste Gerichtshof) in two decisions obligated the Government to provide social care on an equal basis to all asylum-seekers who are in need of such care and considered that an asylum-seeker can demand affirmation of the right to social care before Austrian courts.45 These were clearly formulated binding judgments, but they did not lead to a change of the Government’s policy as can be seen below in section 8 where the recent amendments to the asylum law are introduced. One can conclude that the present Austrian federal care system is apparently incompatible with the EU Directive 2003/9/EC and with the ICESCR. The Austrian Government does not try to observe the standards created by these instruments. The story of the Austrian federal care system gives an answer to the question asked at the end of section 2: If a person has arrived illegally and has no identity papers and refuses to cooperate, the authorities have a dilemma: they want to deport him/her but don’t know where to deport him/her to. The answer is: Deny federal care for him/her and hope that he/she will leave the country. Perhaps one cannot single-handedly reject the Austrian answer, because there are at present many people who purposefully destroy their identity documents and refuse to cooperate with the authorities who are trying to find out information about the asylum-seekers. UNHCR considers that State parties shall treat all asylum-seekers on equal terms 43

See Kurier, 5 November 2002; Migration News Sheet, December 2002, p. 12; and Asyylkoordination aktuell, 4/2002, pp. 2–4. According to Kurier, the Ministry called upon European Homecare to provide asylum-seekers with incorrect information about their legal position and asylum procedure and not to issue any instructions to its staff in writing. 44 See Profil, 10. März 2003, p. 47. 45 Cases 1 Ob 272/02k and 9 Ob 71/03m.

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA with the exception of those whose application is evidently unfounded and can therefore be handled in a speedier process.46 A person who refuses to give his/her correct name to the authorities has weak grounds on which to demand refugee status. 7. Legal Aid According to Article 40 of the Asylum Act, the Ministry of Interior may appoint refugee advisers to assist asylum-seekers. Upon request, their role is to: -

provide aliens with information on any questions concerning asylum law; assist aliens in connection with the submission of an asylum application or asylum extension application; represent aliens in procedures pursuant to the present federal law or to the Aliens Act, unless the engagement of a lawyer is stipulated by law; and be of assistance in connection with the translation of documents and the provision of interpreters.

A report by the Danish Refugee Council and the European Commission in 2000 informed that ten refugee advisers were appointed and paid by the Ministry of Interior, each of whom worked eight hours per week. Most of these advisers come from NGOs. It was up to these advisers to decide which cases require their assistance. Since there were so few advisers, few asylum-seekers received legal counselling paid by the State.47 Most asylum-seekers are dependent on the legal aid provided by NGOs and lawyers under the UNHCR/Caritas Legal Counselling Project. Since most NGOs are located in towns, asylum-seekers residing in rural areas may have difficulties in accessing legal aid. Those asylum-seekers who receive no federal care and do not fit into the care of NGOs may have difficulties obtaining adequate legal aid. Free legal aid is not available from the State for proceedings before administrative authorities, i.e. the Federal Asylum Office and UBAS. If asylumseekers use their right to file an appeal to the Constitutional Court or the Higher Administrative Court, representation by a lawyer is compulsory. Free aid is therefore granted to such appellants who are in need of financial assistance.48 During the handling of asylum applications there are times when an applicant has to write or report something during a short course of time. Often an applicant will need some legal advice, but when the resources of legal assistance are insufficient, there are bound to be instances that an applicant does not get the assistance he/she needs.49

46

UNHCR Reception Standards, 2000, pp. 5–6. Danish Refugee Council, 2000, p. 15. 48 UNHCR Reception Standards, 2000, pp. 37–38. 49 See Asylkoordination aktuell, 4/2001, pp. 7–8, and 4/2000, p. 24. 47

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LAURI HANNIKAINEN 8. Substantial Amendments to the Asylum Law, in Force since 1 May 2004 The Austrian Parliament enacted substantial amendments to the 1997 Asylum Act and some other acts, on 23 October 2003.50 The amending Act entered into force on 1 May 2004, the very day when ten States became new members of the European Union. This means that Austria has stronger grounds to submit that those States, several of which are its eastern neighbours, are safe countries for asylum-seekers. And Austria seems to take full advantage of this. The new Act has received a lot of criticism during its preparation and after its enactment from UNHCR, independent legal experts, NGOs and political opposition, even from Verfassungsdienst des Bundeskanzleramts. The Act has been described as one of the harshest in Europe and as infringing the Refugee Convention and the European Convention on Human Rights. Its constitutionality has been challenged by two Länder, Upper Austria and Vienna, before the Constitutional Court. After the EU’s enlargement Austria is in a favourable geographical position, because, in its view, it is surrounded entirely by safe countries. Of all EU members Austria’s geographical position is nearly as favourable as that of Luxembourg. Neither State has any sea coasts where asylum-seekers could enter their territory secretly. Luxembourg has only old EU members as its neighbours; all Austria’s neighbours with the exception of Switzerland are EU members. In the Austrian view, Switzerland is also a safe country and this view is generally shared in Europe. Amendments in the new Act are reported here: x One notable amendment in the new Act is the provision which completely abolishes the right to seek asylum at Austria’s land borders. The Austrian argument is that since all its neighbouring States are safe countries and the first country where an asylum-seeker enters is liable to handle the person’s asylum application, it is logical to abolish the right to seek asylum at its land borders. This amendment means that the safe country formula has become of sacrosanct character. On the other hand, the new law has only a short list of safe countries for asylum-seekers. In addition to the 24 other EU members and a few additional Western European States belonging to the European Economic Area the list includes only Switzerland and Liechtenstein. Even the short list serves the interests of Austria, since it considers itself being surrounded by safe countries. However, the question remains: Are new EU members such as the Czech Republic or Slovakia in all circumstances safe countries to a citizen or long-term resident of Roma origin?51 50 Bundesgesetz, mit dem das Asylgesetz 1997 (Asyl-Novelle 2003), das Bundesbetreuungsgesetz, das Bundesgesetz über den unabhängigen Bundesasylsenat und das Meldegesetz geändert werden, 253 der Beilagen XXII. GP – Auschutzbericht NR – Gesetzestext. 51 In a case concerning a Roma from Slovakia an Austrian administrative court in 26 May 2000 issued the prohibition of forcible return to Slovakia, because the court regarded Slovakia as an unsafe country to the Roma person in question. See <www.asylanwalt.at/

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x According to the new law, asylum applications can be made in Austria only in certain reception centres which are a part of the first body to consider asylum applications, the Federal Asylum Board. The first hearing of the applicant shall be arranged within 72 hours after the submission of the application in order to substantially speed up the handling of asylum applications as compared with the present system. The applicant is given information about the procedure and his/her rights, but is not offered any possibility to consult an legal expert. An applicant is not entitled to invite his/her legal adviser to participate in this first hearing. After the first hearing the Board has to decide whether 1) the applicant is entitled to refugee status immediately, 2) the application stands a chance of succeeding and should be examined in more detail, 3) there are not sufficient grounds to regard the application as acceptable and therefore it is rejected, or 4) it is manifestly unfounded and leads to rapid deportation. In the case of the third alternative, the applicant is forwarded to a legal expert for advice and a new hearing with a legal expert’s participation will be arranged soon. This hearing may result to a positive decision, i.e. to alternatives 1 or 2, or to the confirmation of rejection. It is apparent that only rarely will a person receive refugee status in 72 hours. Most often an application that appears adequate will be forwarded for more detailed consideration. In the case of the third alternative, rejection, the applicant is entitled to appeal to UBAS. However, according to the main rule he/she has to leave the country without waiting for the decision of UBAS. Then UBAS has no chance to arrange an oral hearing of the applicant. Many international organs like CERD and ECRI have criticized the deportation of an asylum-seeker before the appeals body has given its decision.52 Grounds for regarding an application as manifestly unfounded include the safe country formula: A person is returned to a ‘safe first country’ where he/she entered before arriving to Austria. Another ground is that an applicant does not cooperate with the authorities in identifying his/her on his/her name and citizenship. A third ground is that an applicant is not able to present any adequate grounds for his/her asylum application. If an application is found to be manifestly unfounded by the Federal Asylum Board, the application is actually not considered at any more depth but the person in question is swiftly deported to the first safe country without any right to appeal to UBAS. However, if the Federal Asylum Board is not able to find out an applicant’s route to Austria and what his/her home country is, or country of permanent residence was, it may be that he/she cannot be deported anywhere but will stay at least temporarily in Austria. In the case of rejection, the application is tested according to the principle of non-refoulement. This may lead to the right to stay temporarily in Austria. If the rechtsprechung>. The number of the case is 99/02/0376, 0377, 0378, 0379-5; see also case number 99/20/0346 from 24 February 2000. 52 My home country, Finland, is one of those countries which do not wait for the appeal body’s decision. CERD and ECRI have criticized Finland in strong terms.

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LAURI HANNIKAINEN Federal Asylum Board concludes that the principle of non-refoulement is not applicable and proceeds to a swift deportation, UBAS may not have any adequate chance to examine an appeal regarding non-refoulement before the deportation of the applicant concerned. It remains to be seen whether the Government will provide enough resources to arrange adequately on an individual basis the first consideration of asylum applications in such a short time as 72 hours. Amnesty International suspects that ‘speed kills’ due process of law.53 x According to the new system, all asylum applicants stay in their reception centre during the first 72 hours until the first hearing is arranged and the first decision made. They are entitled to a medical check-up in the reception centre. Regarding the next stage, the temporally shortened handling of asylum applications will evidently ease substantially the possibilities of the Government to offer social care to asylum-seekers. However, this does not appear to be the goal of the Government. The Government did not like the above-mentioned judgments of the Supreme Court on the right of all needy asylum-seekers to claim and receive social care from the federal authorities. It is my understanding that the new Act maintains in force the Government’s line of granting social care only to substantially restricted categories of asylum-seekers.54 The Government appears to want to use strict regulation of access to social care as a means of discouraging potential asylum-seekers from choosing Austria as their target country. However, a positive development is the agreement between the Federation and the Länder at the end of 2003 on the sharing of the costs arising from social care. x One substantial amendment and a major ground of worry is the provision that, with the exception of medically identifiable traumatized persons, asylum applicants do not have a right to submit new information and evidence before UBAS. UBAS is only entitled to take into consideration materials submitted to the Federal Asylum Board. This is considered by UNHCR, independent experts and NGOs as dangerous, because UBAS has proved to be the key organ in many asylum cases. According to Asylkoordination, an umbrella organization of many smaller NGOs working in the field of asylum and refugee matters, in many cases the work done by the Federal Asylum Board is so unsatisfactory that UBAS has to act not only as an appeals body, but also as an investigatory body (which is the task of

53

See <www.buecherservice.at/oesterreich/390024/php>. See Minderheitsbericht gemäss § 42 Abs. 4 GOG der Sozialdemokratischen Parlamentsfraktion durch die Abgeordneten Parnignoni, Mag. Posch, Krainer, Mag. Wurm und GenossInnen, 253 der Beilagen XXII. GP – Aussuchtsbericht NR – Minderheitsbericht, in October 2003; Abweichende persöhnliche Stellungnahme der Abgeordneten Mag. Terezija Stoisits gemäss § 42 Abs 5 GOG, 253 der Beilagen XXII. GP – Ausschussbericht NR – Abw. Pers. Stellungnahme, in October 2003; Asylkoordination aktuell, 3/2003, pp. 4–6. 54

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LEGAL POSITION OF ASYLUM-SEEKERS IN AUSTRIA the Asylum Board).55 UNHCR’s experiences have taught that a considerable sector of recognized refugees have been able to provide full information on their horrible experiences adequately only in the second instance. On the exception of traumatized persons UNHCR states that it is difficult medically to diagnose the existence of a trauma. It points out that no other European country prohibits the right to provide new information and evidence to an appeals body.56 This amendment to the Asylum Act may ease the workload of the overburdened UBAS (however, not necessarily), but it appears to change the Austrian asylumhandling procedure to a kind of summary process instead of a due legal process. This is a serious infringement of the fundamental principle of due legal process. It would be preferable to retain the present system and to increase the resources of UBAS. x There is also another problematic amendment regarding UBAS. It has been functioning independently and under the auspices of the Federal Chancellery, but now it has been transferred under the Ministry of the Interior. Thus the institution of appeal has come under the control of the same ministry which also controls the procedure in the first instance. The Chairperson of UBAS has warned that notwithstanding the declared independence of UBAS within the Ministry of Interior this modification jeopardises UBAS’ independence as a body of judicial control.57 x The new Act also contains some improvements such as, for example, the right of the other family members to receive asylum if one family member is granted asylum; the basis is the right of a family to stay together. Another improvement is the possibility of asylum-seekers to have work in fields of public utility. Notwithstanding the plans of the Ministry of Interior, the right to submit asylum applications in Austria’s embassies abroad is not abolished by the new Act. However, knowing the determination of the present Government to diminish the number of asylum-seekers and refugees, it is highly unlikely that many persons would receive asylum through applications in embassies. To discourage potential asylum-seekers from submitting asylum applications, the following types of measures appear to be handy: making it difficult to approach embassies with asylum applications; telling the applicants that their possibilities to get asylum are small; and handling these applications in slow pace. There may be development in this field in the near future, if the EU is able to agree on a system which endeavours to externalize the asylum seeking to take place outside the EU area.

55

Asylkoordination aktuell, 4/2001, pp. 7–8. <www.unhcr.at/index.php/cat/17/aid>. 57 See Migration News Sheet, April 2003, p. 9. There would be a strong likelihood of it being challenged before the European Court of Human Rights, because the European Convention requires that appeals are to be heard by ‘an independent and impartial tribunal’. 56

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LAURI HANNIKAINEN 9. Conclusion Substantiated fears were expressed that the joint effect of the above-mentioned amendments regarding asylum-seekers’ rights increases the risk that due process of law is endangered. Thus, persons with adequate fears of persecution or inhuman treatment or punishment in their home country or former country of residence may end up back in that very country. The sanctity of the principle of non-refoulement may be in danger.58 The Government and the parliamentary majority do not appear ready to submit to the judgments of the judiciary in respect of the principles of Rechtsstaat. Amnesty International goes as far as to fear that Austria will no longer be a safe EU member country.59 Certainly the above-mentioned 2003 EC (EU) Directive laying down minimum standards for the reception of asylum-seekers was carefully read in the Austrian Ministry of Interior when the new law was drafted. The attempt has been to observe the minimum level of treatment required by the Directive which – as has been submitted above in section 3 – sets fairly low standards. However, Asylkoordination fears that the Austrian Government lacks the spirit of good faith: instead of creating fair standards in accordance with the spirit of the Directive, Austria creates “bad practices”.60 Postscript The Constitutional Court of Austria, in its decision of 15 October 2004, which was published on 16 November, revoked or modified some provisions of the new Act of 2003.61 The prohibition to submit new information to UBAS was eased. The 2003 Act contained a provision relating to those asylum-seekers whose application has been rejected by the Federal Asylum Board according to the 72-hour rule and who appeal to UBAS. The 2003 Act permitted the expulsion of the applicant without waiting for the decision of UBAS. This provision was revoked by the Court. Turku 6 June 2005

58

See <www.unhcr.at/index.php/cat/17/aid/1189>. <www.amnesty.at/cont/presse/2003/058_03_oesterreich.html>. 60 <www.asyl.at/fakten_1/asyl_2003_08.htm>. On the other hand, Peers is of the opinion that the Directive creates such low standards that it is hardly of any significant benefit to asylumseekers in any EU member State. Indeed the reverse may be true: the Directive’s low standards may encourage States to lower themselves to those standards. Steve Peers, ‘Key Legislative Developments on Migration in the European Union’, 5 European Journal of Migration and Law (2003) p. 389. 61 www.ris.bka.gva.at/VfGH/, Geschäftszahl 237/03 und 238/03. 59

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REFUGEES IN SWEDISH PRIVATE INTERNATIONAL LAW Michael Bogdan* 1. Introduction Article 12(1) of the U.N. Geneva Convention of 28 July, 1951, Relating to the Status of Refugees,1 stipulates the following: “The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.”

The reason behind this provision is that the majority of states participating in the conference which elaborated the Convention, including states whose private international law was normally based on the application in personal (mainly family and succession) matters of the law of the country of citizenship (nationality), were of the view that even if a refugee has not lost his original citizenship, it would not be appropriate to consider his personal matters to continue to be governed by the laws of his country of nationality (lex patriae). A particular argument used in this context was that the legislation in the countries generating many refugees had often recently undergone radical, revolutionary changes incompatible with the principles that had prevailed in the country of origin before the revolution, and still prevail in the country where the refugee now resides.2 Difficulties in obtaining information about the law of the country of the refugee’s nationality, as well about whether he had lost his nationality, were also invoked.3 Since the refugee was assumed to feel no solidarity or affinity towards his country of origin and did not enjoy that country’s protection, his citizenship was merely formal and he could be considered to be and treated as a ‘quasi-stateless’ person.4 However article 42 of the Convention permits contracting states to make a reservation to, inter alia, article 12(1). Sweden has made such a reservation and is, consequently, not bound to apply the refugee’s lex domicilii to his personal matters. The reason for the reservation is that Swedish private international law, as it was at the time of Sweden’s accession to the Convention, was based mainly on the application of the law of the country of which the natural person involved was a citizen. The possibility of giving an increased importance to domicile was at the time of the Swedish ratification of the Convention investigated by the Swedish Department of Justice, and the government and the parliament (Riksdag) were *

Professor of Comparative and Private International Law, University of Lund, Sweden. 189 UNTS 137. 2 See Swedish Government Bill 1954:134, p. 12. 3 Ibid. 4 See Government Bill 1973:158, pp. 93–94. 1

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MICHAEL BOGDAN obviously not ready to anticipate the result by ratifying a provision that would oblige Sweden to exclude quite generally refugees from the principle of nationality. Today, domicile can be said to play a more important role than citizenship as a connecting factor in Swedish private international law, but many Swedish conflict rules, ranging from rules on guardianship to rules on succession, continue to point out and use lex patriae as the applicable law, albeit sometimes in combination with lex domicilii or lex fori. In those situations where lex patriae is decisive, or where the nationality of the person(s) involved is relevant for the jurisdiction of Swedish courts or recognition and enforcement of foreign judgments, the question of treatment of refugees remains relevant.5 Should they, as long as they remain citizens of their country of origin and do not acquire the nationality of their country of habitual residence, be treated as any other foreigners or should they be treated as nationals of the latter country?6 In spite of the above-mentioned Swedish reservation to the Geneva Convention, Swedish private international law contains today a special rule about refugees. Since 1 January 1974, Chapter 7, section 3 of the Act (1904:26 p. 1) on Certain International Legal Relations Regarding Marriage and Guardianship, as amended (hereinafter referred to as ‘the 1904 Act’), provides that a ‘political refugee’ shall, as far as the application of that Act is concerned, be treated as “a citizen of the country of his domicile (habitual residence)”.7 Although directly applicable merely within the field of application of this Act (i.e. with regard to certain issues regarding marriage and guardianship), it can be assumed that the provision expresses a more general principle that is normally to be followed in Swedish private international law as a whole,8 although there may be exceptions.9 In fact, even before the entry into force of Chapter 7, section 3 of the 1904 Act, the formal citizenship of a refugee was sometimes disregarded by Swedish courts when dealing with the refugee’s personal matters.10

5

An alien’s citizenship is in some situation relevant even for other aspects of Swedish judicial proceedings, such as the right to legal aid or the duty to deposit security for the other party’s costs, but such fiscal and administrative problems will not be dealt with here. On the Swedish treatment of refugees in these respects see the Act (1969:644) on Certain Rights of Stateless Persons and Political Refugees. 6 Although they concern many refugees as well, the problems of statelessness and of multiple nationalities will not be dealt with in this paper, mainly because they are not specific for refugees and do not seem to require any special regulation with regard to refugees. 7 The Swedish wording uses the term hemvist, which should be translated into English as habitual residence, or as domicile in the sense of habitual residence. It is thus not synonymous with the concept of domicile in, for example, English law. 8 See M. Bogdan, Svensk internationell privat- och processrätt (ed. 5, Norstedts Juridik, Stockholm, 1999) p. 148 with further references. 9 It seems, for example, that refugees are to be treated as any other aliens with regard to the application of rules on personal names; see Government Bill 1982/83:38, p. 9. 10 In Swedish legal writing, see e.g. N. Beckman, Svensk domstolspraxis i internationell rätt (Norstedts, 1959) pp. 16–18 and 61–62; H. Karlgren, Kortfattad lärobok i internationell

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REFUGEES IN SWEDISH PRIVATE INTERNATIONAL LAW Chapter 7, section 3 of the 1904 Act gives rise to several problems, the principal question being who is entitled to the status of political refugee in the context of private international law (see part 2 below). Another question to be discussed is whether there are legitimate reasons to treat refugees in a different manner from other foreigners when it comes to personal issues such as marriage, guardianship or inheritance (see part 3 below). 2. Who is a refugee in Swedish private international law? Swedish private international law contains no definition of its own of who is a refugee or political refugee. However a definition of ‘refugee’ can be found in the Swedish Aliens Act (2005:716). This statute, belonging to the field of administrative law, regulates mainly the right of aliens to sojourn or reside in Sweden, including the right of asylum granted to refugees. Chapter 4, section 1 of the Aliens Act defines ‘refugee’ as an alien who is situated outside the state of his citizenship11 because of well-founded fear of being persecuted for reasons of race, nationality, membership in a particular social group, religious or political opinion, and is unable or, owing to such fear, is unwilling to avail himself of that state’s protection. This definition follows relatively closely the definition of refugee in article 1 of the Geneva Convention, although the Swedish statute adds an important clarification: it stipulates that is is irrelevant whether the persecution emanates from the authorities as such or from others, provided that the authorities do not offer safety and protection from the persecutors. The Aliens Act contains in Chapter 4, section 5, rules about circumstances that result in a refugee losing his refugee status, such as the acquisition of a new nationality or a voluntary return to the country of origin. In addition to ‘refugees’ as defined above, the Aliens Act recognizes in Chapter 4, section 2, an additional, similar category of persons, namely ‘others who are in need of protection’ (skyddsbehövande i övrigt). This category comprises aliens who, without being refugees as defined above, have left their country due to well-founded fear of being punished by death or subjected to corporeal punishment, torture or other inhuman or degrading treatment or punishment, or are in need of protection because of an international armed conflict, civil war or environmental disaster, or feel well-founded fear of persecution because of their gender or homosexuality. There is also a third, partly similar category comprising persons who are neither recognized as refugees nor deemed to be in need of protection, but are granted a residence permit on humanitarian grounds pursuant to Chapter 5, section 6 of the Aliens Act. Although most such cases, for example where a residence permit was granted due to medical reasons, are not similar to refugee status, some humanitarian grounds may, in fact, be very close to those mentioned in connection with asylum. privat- och processrätt (ed. 5, Liber, Lund, 1974) pp. 80–82; L. Pålsson, Svensk rättspraxis i internationell familje- och arvsrätt (Norstedts, Stockholm, 1986) pp. 27–29. 11 A corresponding rule on stateless refugees is found in Chapter 4, section 1, para. 3 of the Aliens Act. Stateless refugees are, however, not dealt with here.

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MICHAEL BOGDAN It is not the purpose of this article to analyze the definition of refugee in the Aliens Act, but rather to examine to what extent that definition, which in the course of years has several times been modified through legislation or re-interpretation, applies in private international law as well. According to the preparatory legislative materials (travaux préparatoires), which are given great weight in the Swedish legal system, the definition of refugee in ‘section 2 of the Aliens Act’ should be used by analogy in the interpretation of Chapter 7, section 3 of the 1904 Act (see above).12 This was a reference to section 2 of the Aliens Act (1954:193), which was in force at the time of enactment of Chapter 7, section 3 of the 1904 Act. The definition of refugee in section 2 of the Aliens Act of 1954 differed in some respects from the present Aliens Act from 2005, although even the 1954 definition followed the Geneva Refugee Convention relatively closely. This gives rise to the question whether the subsequent changes in aliens legislation should be followed also at the interpretation of Chapter 7, section 3 of the 1904 Act. It is possible to argue that the authors of Chapter 7, section 3 of the 1904 Act had in mind the refugee definition as it was stipulated in section 2 of the Aliens Act at that time and that Swedish private international law should not automatically follow the subsequent changes in the aliens legislation regarding who is and who is not a refugee for the purposes of the right to asylum. The Aliens Act of 1954 was in its entirety replaced by the Alien Act (1980:376), which was replaced bu the Aliens Act (1989:529), which was in turn replaced in its entirety by the present Aliens Act (2005:716). There have also been partial amendments affecting provisions on refugees and asylum. All these changes in the aliens legislation were preceded by investigations and discussions focusing on the alien’s right to asylum (residence permit), while the possible consequences for conflicts of law were not even mentioned. The most conspicuous difference between the relevant provisions of the Aliens Act of 1954 (in force at the time of enactment of Chapter 3, section 4 of the 1904 Act) and the present Aliens Act is that the Aliens Act of 1954 spoke of ‘political refugee’ (politisk flykting), while the current Aliens Act does not use that term any more but speaks merely of ‘refugee’ (flykting). The adjective ‘political’ disappeared from the Aliens Act in connection with the entry into force of the Aliens Act of 1980, in order to adapt the Swedish terminology to that of the Geneva Refugee Convention (which speaks of refugees and not of political refugees). The term ‘political refugee’ is, nevertheless, retained in the wording of Chapter 3, section 4 of the 1904 Act, which has thus not been amended in order to keep up with the changes in the Aliens Act. This might be considered as an indication that the term ‘political refugee’ in the 1904 Act should even today be interpreted in accordance with the definition contained in the 1954 Aliens Act, in spite of the fact that the 1954 Aliens Act was repealed and replaced with new legislation as early as in 1980.

12

See Government Bill 1973:158, pp. 70 and 122.

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REFUGEES IN SWEDISH PRIVATE INTERNATIONAL LAW It is, however, difficult to find good substantive reasons speaking in favour of such an approach, which would, furthermore, be very impractical, as it would mean that Swedish courts could not, in the context of private international law, rely on the decisions taken today by other Swedish authorities about the refugee status of the person(s) concerned. The refugee status of a person is usually examined and decided by the Swedish central aliens authority (the Migration Board) in connection with that person’s application for Swedish asylum, meaning a residence permit on the grounds of that person being a refugee. However, the examination and decision can take place even later, for example when the person in question, who may have already been granted a residence permit on other grounds, applies to the Migration Board for an official declaration of his refugee status (flyktingförklaring) in accordance with Chapter 4, section 3 of the Aliens Act or for a special refugee travel document (resedokument) issued in accordance with the Geneva Refugee Convention and Chapter 4, section 4 of the Act. However, the criteria regarding refugee status are not necessarily the same in all these situations. While the granting of asylum and the official declaration of refugee status are expected to abide by the definition of refugee in the Swedish Aliens Act, the travel document can be issued only to refugees covered by the Geneva Convention.13 To the extent that the Swedish refugee definition in its wording or as it is interpreted in practice is more liberal than the Convention, the travel document must be refused. The opposite situation, where a person who is a refugee under the Convention is not considered as such under the Swedish Aliens Act, should not arise, since the Swedish definition aspires to be at least as generous as the definition in the Convention.14 An official declaration of a person’s refugee status, made by the Migration Board pursuant to Chapter 4, section 3 of the Aliens Act, is intended to be binding on Swedish courts and all other Swedish authorities.15 There are no reasons to make an exception for Swedish courts in disputes dealing with personal matters of family and inheritance law. As the declaration is made on the basis of refugee status criteria in the present Aliens Act, it appears logical to accept the application of these criteria even in the context of conflicts of law, i.e. to interpret the reference to ‘political refugees’ in the 1904 Act to be a reference to the refugee concept in the present Aliens Act rather than in the old legislation in force some thirty years ago. The terminological difference between the 1904 Act and the present Aliens Act (which today speaks about refugees instead of political refugees, see supra) does not, it is submitted, constitute and obstacle in this respect, since the change of terminology in

13

This is explicitly stipulated in Chapter 1, section 10 of the Aliens Decree (1989:547), issued by the Swedish government in order to implement and complement the Aliens Act. 14 However, whether the Aliens Act really fulfills this ambition is not quite certain. See e.g. K. Folkelius and G. Noll, ‘Affirmative Exclusion? Sex, Gender, Persecution and the Reformed Swedish Aliens Act’, 10 International Journal of Refugee Law (1998) pp. 607–636. 15 See Government Bill 1979/80:96, p. 44.

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MICHAEL BOGDAN the aliens legislation was intended mainly to adapt the Swedish terminology to that of the Geneva Refugee Convention.16 The decision of the Migration Board granting a refugee travel document should in practice also be accepted by Swedish courts as a full proof of refugee status. This was confirmed in 1991 by the Swedish Supreme Court in the case of Tayebe S. v. Faramarz N.,17 concerning an application for divorce between two Iranian nationals. The respondent spouse opposed the application and argued that there were no grounds for divorce under Iranian law. Such objection is not valid if at least one of the spouses is of Swedish nationality. The divorce was granted because the petitioner had been issued a refugee travel document and was, therefore, to be treated as a Swedish national pursuant to Chapter 7, section 3 of the 1904 Act. The respondent argued that the petitioner was not really entitled to refugee status and that the travel document had been issued on the basis of false statements about invented persecution risks in Iran, but the Supreme Court referred simply to the decision made by the Swedish authority issuing the travel document (a predecessor of the Migration Board) and found no reason to disregard that decision. Similarly, a decision of the Migration Board denying asylum or refusing a declaration of refugee status should normally be respected by the courts. A person can, however, fulfill the criteria for refugee status even if he has never asked for asylum (often because he has obtained a residence permit on some other ground) and has never applied for an official declaration or travel document. Many bona fide refugees are reluctant to make such applications, for example in order not to cause difficulties for relatives still living in the country of origin. If such a person invokes, in the context of conflict of laws, that he is a refugee, it seems that the court has to examine the facts and circumstances and decide whether the person in casu is a refugee or not pursuant to the criteria of the present Aliens Act. The court may turn to the Migration Board for information and advice, without, however, being bound by the Board’s opinion.18 On the other hand, if a Swedish court deciding a personal matter bases its decision on the refugee status of the person(s) concerned, this shall not, of course, bind the Migration Board if it is subsequently asked to grant asylum, make an official declaration of refugee status, or issue a refugee travel document to the same person(s). The persons who are not refugees under the Swedish Aliens Act but have obtained a residence permit on humanitarian grounds or because they were considered to be in need of protection (see above) do not seem to be entitled to any special treatment in private international law.19 Similarly, the fact that a person has applied for asylum, official declaration or travel document does not, as such, make 16

See Government Bill 1979/80:96, pp. 39–42 and 88. See [1991] Nytt Juridiskt Arkiv no. A 2. 18 See Government Bill 1973:158, p. 94. 19 See, however, section 6 of the Act (1997:191) on Sweden’s Accesssion to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, providing for special treatment of children that are refugees or are “in a situation similar to that of a refugee”. See Government Bill 1996/97:91, p. 78. 17

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REFUGEES IN SWEDISH PRIVATE INTERNATIONAL LAW him a refugee in the Swedish conflicts of law, but under certain circumstances it may be appropriate for the court to postpone its decision until the question of refugee status has been determined by the Migration Board. The preparatory legislative materials concerning Chapter 7, section 3 of the 1904 Act state that whether a person is treated as refugee depends “to some extent” on whether he himself invokes his refugee status, as it is as a rule inconceivable for Swedish authorities to consider an alien to be refugee if he himself denies that he is one.20 It is submitted, however, that it should not be accepted that a person asserts or denies his refugee status depending on whether this is advantageous or disadvantageous for him in the particular case. If he has asked for and obtained Swedish asylum, an official declaration of refugee status, and/or a refugee travel document, then he should be treated as a refugee even if he prefers to deny such status in the context of conflicts of law. There are no reasons to allow refugees to pick cherries out of two legal systems, since this would give them a preferential advantage not enjoyed by other persons, in particular by their counterparts in judicial proceedings. Most cases where Swedish courts have to deal with personal matters involving refugees concern refugees residing in Sweden. It must, nevertheless, be stressed that Chapter 7, section 3 of the 1904 Act is not limited to such cases. Swedish courts can in certain situations have jurisdiction to adjudicate personal matters concerning aliens who have obtained asylum or reside in a third country, for example an Iranian refugee enjoying French asylum and living in France. To decide whether such a person is really a refugee and should therefore in Swedish private international law be treated as a French national is not quite so simple. If he holds a travel document issued by French authorities pursuant to the Geneva Convention, it is natural to recognize him as a refugee and treat him, consequently, as a French national, since if the French authorities decided that he fulfills the Convention’s criteria then he can be assumed to be a refugee according to Swedish law as well. The mere fact that a person has been granted asylum in a third country is, on the other hand, not necessarily sufficient, as the criteria used pursuant to that country’s alien legislation may be too liberal from the Swedish point of view. The fact that a person has been refused refugee status in his country of residence cannot, similarly, bind Swedish courts, as the criteria applied in that country may be more restrictive than those stipulated in Swedish law. Due to practical reasons, it is normally a good idea to presume, in the absence of proof to the contrary, that the foreign decision is correct and in conformity with the Swedish refugee definition. If the authorities of the country of residence have not yet taken a decision on the person’s refugee status, Swedish courts can either stay the proceedings until such decision is made or decide independently whether the person is a refugee according to the Swedish definition and criteria.

20

See Government Bill 1973:158, pp. 122–123.

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MICHAEL BOGDAN 3. Should refugees be treated differently in private international law than other foreigners? As mentioned at the outset, Sweden has made a reservation with regard to the Geneva Refugee Convention’s article 12(1). This means that Swedish private international law can treat refugees in the same way as other aliens without violating any international undertaking. The provision in Chapter 7, section 3 of the 1904 Act is the result of an autonomous Swedish decision and reflects autonomous Swedish considerations and points of view. It differs from article 12(1) of the Convention, not merely because the definition of refugee may be slightly different but also and mainly by dealing only with refugees having a domicile (habitual residence) in a country outside their country of origin. Article 12(1) of the Convention covers also the case where the refugee has not yet established such domicile, in which case the refugee’s personal status is governed by the law of the country where he sojourns or resides, even if only temporarily. The Swedish legislator seems to be of the view that refugees without a domicile are to be treated as other foreigners, so that the law of their country of origin is to be applied whenever Swedish conflict rules lead to the application of lex patriae. The main reason for this difference given in Swedish preparatory legislative materials is that the connection with the country of the refugee’s residence should be relatively permanent before its law can be allowed to replace the lex patriae.21 It is submitted that this is a reasonable approach: to subject the refugee’s most important personal matters to the laws of a country where he sojourns merely temporarily, before he moves to a country of more permanent settlement, can lead to unfortunate decisions. The temporary sojourn, perhaps in a refugee camp with no or very little contact with the surrounding society should not suffice to replace the refugee’s lex patriae with local law. However the main question remains: is it reasonable and appropriate to treat refugees in private international law as citizens of the country of their domicile (habitual residence) while applying lex patriae to other persons? This question loses obviously much of its relevance if and when the domicile replaces quite generally citizenship as connecting factor, but to the extent this does not happen and citizenship retains its importance one may ask why refugees should be treated differently. Treating refugees as nationals of their country of domicile is relatively easy to defend when nationality is used as ground for jurisdiction of courts. The refugee has usually no or little access to the courts in his country of origin, feels well-founded fear that he would not be treated fairly by them, or has other legitimate reasons not to subject his personal matters to them. It is, therefore, highly desirable that a refugee domiciled in Sweden be allowed to turn to Swedish courts to the same extent as if he were a Swedish citizen. A similar approach is appropriate in the matter of recognition and enforcement of judgments. In those cases where citizenship in the country of adjudication of the 21

See Government Bill 1973:158, p. 94.

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REFUGEES IN SWEDISH PRIVATE INTERNATIONAL LAW person(s) involved normally suffices for recognition and enforcement of the ensuing judgment, the formal citizenship of the refugee who had left the country should not be sufficient. The refugee should in this situation be treated as a citizen of his country of domicile (usually Sweden) in order to prevent the authorities in the country of origin from carrying on the persecution by means of judicial proceedings. The answer is not that simple regarding the question about the legal system that should govern the refugee’s personal matters. The fact that a person opposes and risks persecution by the regime of his country does not, by itself, mean that it would be inappropriate to subject his personal matters to the legal rules of that country.22 The rules in question have usually been enacted with the general population in mind and are not directed against the particular refugee. Should the law of the country of origin comprise rules maltreating people who have fled the country, such rules would be refused application in Sweden due to violation of Swedish public policy (ordre public).23 Furthermore, the persecution directed against the refugee does not necessarily emanate from the state as such; it may, in fact, result from the activities of private groups acting in violation of the law. Most bona fide refugees are compelled to leave their country of origin against their will and hope to be able to return there within foreseeable future. Although experience shows that the majority of refugees stay on in Sweden even after political changes in their country of origin have made it possible for them to return, it can be argued that it is illogical to apply Swedish law to personal matters of those immigrants who have been compelled to come to Sweden by circumstances beyond their control, while lex patriae is applied to aliens who have moved to Sweden of their free will in order to settle here permanently and build their future here. It should, furthermore, be noted that the nature of the refugee flow has undergone important changes during the latest decades. Most refugees coming to Sweden some thirty years ago came from various communist or right-wing dictatorships in Europe. Today, they come mostly from countries in other continents with cultural, religious, ethical and legal traditions that are often very different from those prevailing in Sweden and reflected in Swedish law. For a refugee coming from, for example, communist-ruled Czechoslovakia or Poland, Swedish law represented values that were familiar to him and that he often even remembered from pre-communist days. In fact, the very reason for leaving these countries was often that the refugee preferred these values to those prevailing currently in his country of origin. Such a refugee could be expected to adapt relatively quickly to Swedish law in such areas as family or inheritance. The situation is somewhat different with regard to many of the refugees coming from, for example, Islamic countries or the Far East. To subject the personal matters of such persons, more or less against their will, to Swedish law, which probably seems strange and incomprehensible to them, is highly problematic. As it was put by one participant in a discussion on the subject, we cannot expect immigrants from 22 23

See Government Bill 1973:158, p. 72. See e.g. Chapter 7, section 4 of the 1904 Act.

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MICHAEL BOGDAN other cultures to start thinking as Lutherans upon arrival in Sweden. This is especially true regarding the so-called quota refugees, who are given refugee status and acquire Swedish domicile practically immediately upon arrival, long before they learn to understand Swedish and obtain some fundamental knowledge about Swedish society and Swedish values. The problem is less acute with regard to people who had been in Sweden for a longer time, sometimes several years, before they acquired Swedish domicile as a result of their asylum application finally being granted by the Swedish authorities. These types of questions arise not merely in connection with refugees, but quite generally whenever the advantages and disadvantages of the application of lex patriae and lex domicilii are discussed and compared. However, the problem becomes more pronounced in the refugee context, because refugees are supposed to be subjected to lex domicilii even regarding those matters that in respect of other aliens have consciously been left to be governed by the law of the country of their citizenship. Regarding such matters, which are today relatively few and are expected to decrease rather than increase in volume, the application of lex patriae would, it is submitted, be acceptable, and maybe even preferable, also in relation to refugees.

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CIVIL FREEDOMS AND RIGHTS IN THE SWEDISH CONSTITUTION OF 1974: THE PROCESS AND THE RATIONALE1 Carl-Gustaf Andrén* The Swedish constitutional document the ‘Instrument of Government’ (regeringsformen, RF) of 1809 provided for security of the citizens in addition to some freedoms and rights. Paragraph 16 required the Monarch to ensure, most prominently, justice and truth and to prevent and prohibit damage to life, honour, personal freedom and well-being. The provision also deals with property, privacy, prohibition of expulsion or forced displacement, freedom of conscience, religion, and legal process. For 165 years this provided the explicitly constitutionally guaranteed rights in Sweden. The underlying reasons for the inclusion of these freedoms and rights are not given in the Instrument but followed a tradition of guarantees of powers given to the nobility by the King. In 1974 the Swedish Parliament (riksdagen) passed a new Instrument of Government. The process had been commenced already in 1938 with a parliamentary inquiry, a process that was reinvigorated in 1954 with a constitutional commission of inquiry. Disagreement in the Parliament in 1973 led to an inclusion of minimal guarantees only, and as a consequence the process of inquiry continued. In 1976 the Parliament added a second chapter to the Instrument, which detailed fundamental freedoms and rights along with the customs of many other European countries. Further legal protection of these rights was extended in 1979. The adoption of the European Convention on Human Rights as Swedish law in 1994 was a more recent step in the same direction of expanding the rights catalogue. Chapter two, as introduced in 1976, offers no rationale for the inclusion of these freedoms and rights. In the second paragraph of Chapter one, however, it is stated that the basis for inclusion is respect for the equal value all humans and for the freedom and dignity of the individual. The political unrest in Europe was also definitely a determining factor. The series of inquiries, spanning almost 40 years, provide greater insight into the rationale. In the early stage of this process, professors of law were consulted, natural-law-thinking of 18th Century Europe was cited and foreign foundational documents were referred to (the French Declaration of 1789, the US Constitution of 1787, and constitutional documents from Belgium, the Netherlands, Norway, Denmark, and Finland. One Member of Parliament, also a professor of law in Uppsala, criticized what he called the ‘ideological’ theories upon which rights were 1

This is a summary in English of pertinent extracts of the article by Andrén, offered by the editors. The original version in Swedish follows. * Professor of Practical Theology and Church Law, former rector, Lund University and chancellor of universities and colleges in Sweden. 321

CARL-GUSTAF ANDRÉN based, underpinned as they were, he claimed, by natural law. When the rights were eventually included it was stressed that it was the Parliament which granted these rights, they were not a result of any natural law obligations. In the 1940s it was stressed by one commission of inquiry that it was not the ultimate purpose of these rights to protect individuals but to ensure the strength of the state through a stable and reliable legal system. The early parts of the process of inquiry in particular tried to separate the rights from natural law; legal positivism seemed to prevail. This positivistic perspective was also used to ensure that it was not impossible for the Parliament to alter the rights at a later stage, yet this power was to be balanced with a desire to make the rights fundamental. This position remained throughout the process. International law appears to have had little influence on the process, even though as the UDHR was being drafted in the late 1940s an inquiry was under way. The discussion in the UN was often very much based on natural law principles, still, the Swedish delegates made no objections to that in the debates. In the 1950s as the European Convention on Human Rights and Fundamental Freedoms was being adopted and Sweden soon thereafter ratified the Convention, renewed efforts were made in the Parliament to also have constitutionally enshrined rights in Sweden. A Constitutional Commission of inquiry announced in the early 1960s that there would be a catalogue of rights introduced into the Constitution.2 This Commission emphasized that although Sweden had a long tradition of guaranteeing in law the protection of the individual from the state; the Swedish model had thus far not been a rights catalogue, as was common in many other constitutions. A number of objections were made. One Supreme Court justice argued that to include what likely would be merely symbolic rights would undermine the credibility of the Constitution. This scepticism was shared by other consulted institutions. In particular, the courts and other organs involved in the administration of justice argued for a relative position towards rights. The international obligations were also seen as making constitutionally prescribed rights redundant. Another commission further into the process in the early 1970s connected indirectly to natural law and extended the earlier more conservative catalogue of rights. Again the concern of limiting the powers of the Parliament was underlined and it was furthermore stressed that the rights were more Swedish than international in origin. The emphasis on this domestic origin was also clear from an early stage of the process The most recent development in expanding rights in the Swedish legal system was a commission mandated in 1991 to inquire into how the European Convention could be integrated given the formal dualistic nature preventing direct application. No apparent contradiction between Swedish law and the Convention was found and the rights were incorporated into Swedish law, without, however, giving these rights constitutional status; yet providing some protection by a Constitutional prohibition 2

A proposal to establish a Constitutional court was however discarded.

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CIVIL FREEDOMS AND RIGHTS IN THE SWEDISH 1974 CONSTITUTION of adopting laws not in conformity with the rights of the Convention. There was no discussion on the rationale behind the Convention rights. The development since the 1930s could be summarized in four phases. The first phase concerned whether freedoms and rights should be introduced into the Swedish constitution at all; the second dealt with what rights should be included; the third examined how the protection of not absolute rights could be strengthened, and the fourth phase concerned how the European Convention ought to be incorporated. In particular, it is noteworthy that the rationale behind and criteria for the rights selected for inclusion have not been discussed in more depth. Neither has the discussion taken its starting point in the conventions Sweden has acceded to. On the contrary, on several occasions it has been stressed carefully that it is not the conventions that have been the basis for the expanded selection of rights. The 65 years of development described above could also be summarized by three different perspectives. The language used has stressed a general applicability of the rights, for all citizens and more broadly also all humans. Secondly, the rights have been referred to with wording seeking to emphasize that they are unchangeable, yet retaining the possibility of making democratic changes of the Constitution and consequently also the rights. Finally, a third perspective addresses the legitimacy of the rights: what the rationale is for granting the rights special status.

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 PROCESSEN OCH MOTIVEN FÖR INFÖRANDE

Carl-Gustaf Andrén I regeringsformen (RF) 1809 ingår den berömda 16 §. Den slår vakt om medborgarnas säkerhet liksom om vissa fri- och rättigheter för dem med sina lapidariskt formulerade ord: ‘Konungen bör rätt och sanning styrka och befordra, vrångvisa och orätt hindra och förbjuda, ingen fördärva eller fördärva låta, till liv, ära, personlig frihet och välfärd, utan han lagligen förvunnen och dömd är, och ingen avhända eller avhända låta något gods, löst eller fast, utan rannsakning och dom, i den ordning Sveriges lag och laga stadgar föreskriva; ingens fred i dess hus störa eller störa låta; ingen från ort till annan förvisa; ingens samvete tvinga eller tvinga låta, utan skydda var och en vid en fri utövning av sin religion, såvitt han därmed icke störer samhällets lugn eller allmän förargelse åstadkommer. Konungen låte en var bliva dömd av den domstol, varunder han rätteligen hörer och lyder.’

Under 165 år kom dessa formuleringar att utgöra svenska medborgares grundlagsfästa skydd gentemot överheten i konungens gestalt. De innebar att överheten ålades att iaktta vissa förpliktelser i förhållande till medborgarna. Några motiv för dessa principer anges inte i RF men bestämmelserna griper tillbaka på traditioner som återfinns i bl. a. tidigare konungaförsäkringar och akter där det aristokratiska samhället ville begränsa kungamakten. Klart är att omsorgen om medborgarnas fri- och rättigheter liksom rätten att bestämma vilka rättigheterna skulle vara åvilade den tidens makthavare. År 1974 antog riksdagen en ny RF som ersatte 1809 års RF. Arbetet på denna initierades redan 1938 då riksdagen begärde att det skulle tillsättas en utredning med syfte att i 16 § tydligare skriva in vissa fundamentala principer och ge dem grundlags karaktär. 1954 tillsattes författningsutredningen med uppdrag att lägga förslag till både ny RF och ny riksdagsordning. Vid riksdagsbehandlingen 1973 av den nya RF rådde dock oenighet om hur skyddet för de medborgerliga fri- och rättigheterna skulle utformas och den nya RF kom att innehålla endast minimala föreskrifter som skulle säkra arvet från 16 §. Frågan blev därför omedelbart föremål för fortsatt utredning. Genom riksdagsbeslut 1976 infogades så i det andra kapitlet ett särskilt avsnitt om grundläggande fri- och rättigheter. Därmed hade Sverige i likhet med många andra länder i Europa gett vissa bestämmelser om grundläggande

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 fri- och rättigheter grundlags natur. Ett förstärkt rättsskydd för vissa av fri- och rättigheterna tillkom 1979.3 I RF 2 kap. redovisas inga motiv till varför dessa grundläggande fri- och rättigheter tagits in. En grundval anges dock i RF 1 kap. 2 med stadgandet att ‘den offentliga makten skall utövas med respekt för alla människors lika värde och för den enskilda människans frihet och värdighet’. I det förberedande utredningsarbetet, som sträcker sig över sammanlagt nästan 40 år, möter däremot i diskussionerna och resonemangen antydningar och direkta påpekanden om vad som var bakgrunden. * Redan vid 1938 års riksdag hade – som redan sagts - frågan väckts om man inte i lag borde befästa vissa fri- och rättigheter som inte kunde sägas omfattas av 16 § i RF. Vid riksdagen framlades likalydande motioner, nr 128 och 232, från högerns riksdagsledamöter i båda kamrarna. Motionerna tog upp frågan ‘om införande i grundlag av vissa av det nuvarande samhällets fundamentala principer’. Den konkreta innebörden var att man i grundlag ville befästa vissa redan allmänt accepterade fri- och rättigheter som inte kunde sägas omfattas av 16 § i 1809 års RF. Motionerna understryker att “nu gällande principer för den svenska samhällsordningen ... endast svagt kommit till uttryck i våra grundlagar”. Man jämför med förhållandena i andra länder där det politiska livets puls varit hetare”. Detta har lett till att man där varit mer “angelägen att bereda garantier även för samhällets, ej blott statsorganisationens grundläggande principer”. Rättighetsförklaringar, liknande dem i Nordamerika och Frankrike, har införts i en del europeiska stater, ibland tillsammans med en katalog över medborgarnas skyldigheter. RF:s 16 § ger enligt motionärerna “inga betryggande rättsgarantier för de medborgerliga fri- och rättigheter, som ingått i det svenska rättssamhällets rättsmedvetande och praxis”. Självklart var det de oroande förhållandena ute i Europa som bidrog till att aktualisera funderingarna på en skärpt rättighetslagstiftning, en hänvisning som man i de fortsatta diskussionerna om fri- och rättigheter ofta skulle återkomma till. Det finns dock enligt motionärerna inte någon omedelbar fara för att grundvalarna ska åsidosättas i “vårt land”. Man påpekar dock att tidigare allmänt erkända grundsatser i Europa i stat efter stat “blivit skjutna åt sidan”. Därför finns det skäl att rusta sig “mot överrumplingar, företagna måhända av tillfälliga maktinnehavare i strid mot folkets rättsmedvetande”. För att skydda sig mot sådana övergrepp “synas de former, som sedan gammalt gälla för svensk grundlagstiftning, synnerligen värdefulla”.

3

Om bakgrunden till RF 1974 se S. Strömholm, Grundlagen, folket och etablissemangen. Till diskussionen om en ny regeringsform (Norstedts 1973); K.-G. Algotsson, Medborgarrätten och regeringsformen (Norstedts 1987); E. Holmberg/N. Stjernquist, Vår författning (8.ed. Norstedts 1991), Sveriges grundlagar med inledning av E. Holmberg och N. Stjernquist (Riksdagen 1992) och H. Strömberg, Sveriges författning (13e uppl. 1992) .

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CARL-GUSTAF ANDRÉN Motionerna utmynnar i förslaget att riksdagen i skrivelse till Kungl. Maj:t ska anhålla om “utredning och förslag i syfte att i grundlag införa och bestämma några av det nuvarande samhällets fundamentala principer på sådant sätt, att dessa icke kunna åsidosättas utan en ändring av svensk grundlag”. Det är värt att notera att motionerna vill slå vakt om “några av det nuvarande (kursiverat här) samhällets principer” som dock kan ändras genom grundlagsändring. Det är inte tal om att hänvisa till en gång för alla givna oförytterliga mänskliga rättigheter. I sitt utlåtande (nr 16) till riksdagen framförde konstitutionsutskottet (KU) synpunkter som kan sägas stå i god överensstämmelse med det svenska rättssamhällets syn på de mänskliga rättigheterna. Lagstiftningen hade, framhöll KU, inte velat fastställa “det vid någon viss tidpunkt levande svenska samhällets ‘fundamentala principer’, även om stadganden finnas, som beröra dessa”. Därför hade det också visat sig möjligt “att anpassa lagstiftningen efter förändrade tids- och samhällsförhållanden”. Om man skulle skriva in dessa “fundamentala principer” i grundlagen så var det viktigt att detta inte fick innebära ett hinder för “att en successivt skeende faktisk omdaning i det allmänna rättsmedvetandet av de begrepp, till vilka dessa principer hänföra sig, omsättes i lagstiftning”. Vad KU här säger är ju att de “fundamentala principerna” egentligen är ett resultat av en successivt pågående lagstiftning genom riksdagen. Konsekvensen blir att det inte finns några sådana principer som inte kan ändras genom ett demokratiskt riksdagsbeslut, låt vara i grundlags ordning för att förhindra alltför snabba beslut. Indirekt – utan att anknyta till internationellt rättstänkande på annat håll – tar KU liksom motionerna därmed avstånd från motivet att fri- och rättigheterna egentligen är eviga och oföränderliga. Bakgrunden till och förankringen av synpunkterna i KU:s utlåtande redovisas egentligen i den utförliga bilaga som fogats till utlåtandet. Den behandlar dels frågan om innebörden i 16 § i regeringsformen 1809 dels fri- och rättighetsfrågorna i utländsk rätt. Till frågan om innebörden i 16 § anförs utförliga utdrag ur aktuella vetenskapliga undersökningar av framstående folkrättsspecialister. Det börjar med Carl Reuterskiölds artikel om Vår regeringsforms Magna Charta, 1897-99. Reuterskiöld var professor i statsrätt, förvaltningsrätt och folkrätt i Uppsala 1909-34 och konstitutionsutskottets ordförande 1930-38. Han var alltså ordförande när motionerna behandlades i utskottet. I artikeln påpekar han “att . . . ur 16:de paragrafen härleda och framleta något stadgande rörande skydd för s.k. allmänna medborgerliga rättigheter i modern mening vore lika konstlat som lönlöst”.4 I bilagan återges också betydande avsnitt ur Robert Malmgrens stora arbeten om Sveriges grundlagar, 1937, och Sveriges författning, 1936. Malmgren var professor i statsrätt, förvaltningsrätt, kyrkorätt och folkrätt i Lund 1911-41. I sitt förstnämnda arbete understryker Malmgren att huvudsyftet med 16 § “är att skydda den enskilde mot övergrepp från den styrande maktens sida”. Han framhåller vidare att 16 § motsvarar i viss mån “de kataloger över individernas fri- och rättigheter 4 Citaten ur Reuterskiölds och Malmgrens arbeten är hämtade från de utförliga utdrag som publicerats i bilagan till KU:s utlåtande.

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 (rättighetsförklaringar) som innehållas i de flesta främmande författningar”. Enligt utdraget ur verket Sveriges författning gör Malmgren en mycket klar markering vad gäller ursprung och motiv till rättigheterna. ‘Det finns – säger han – inga rättigheter utanför rättsordningen – helt enkelt därför att rättigheterna äro funktioner av rättsordningen. . . . Några medfödda och oförytterliga, med den mänskliga personligheten oupplösligt förknippade rättigheter finnas icke. Det som gör att vissa rättigheter och förmåner framstå som omistliga och oantastliga är att de mänskliga kraven och livsbehoven hos folk med enahanda kulturstandard och likartad social åskådning komma vissa värden att te sig som självklara och orubbliga. Detta kan då föra till att rättsordningen omger dem med särskild helgd’. När det gäller avsnittet om Utländsk rätt i KU:s bilaga redovisas först hur det naturrättsliga tänkandet “ligger till grund för de individuella rättigheter, som under slutet av 1700-talet och senare med dessa som förebild garanterats i skilda statsförfattningar”. Dessa individuella rättigheter skulle respekteras av staten just därför att “de äro okränkbara”. Därefter presenteras som jämförelse i längre eller kortare utdrag den franska rättighetsförklaringen 1789, Förenta staternas författning 1787, Belgiens författning, Nederländernas grundlag, Norges grundlag, Danmarks grundlag och Finlands regeringsform. KU:s ställningstagande och motiveringar står i direkt överensstämmelse med de uppfattningar som presenteras i bilagan om innebörden i 16 §. De slår liksom KU vakt om riksdagens ensamrätt att stifta och upphäva lag i det svenska rättssamhället. Någon påverkan av utländsk rätt i utlåtandet kan inte spåras annat än att bestämmelser om medborgerliga fri- och rättigheter liksom i utländska statsförfattningar rimligtvis bör ingå i svensk rättsordning i den utsträckning som riksdagen bestämmer, d.v.s. som ett utslag av lagstiftningsmaktens eget avgörande utan hänsyn till naturrättsliga uppfattningar om medfödda oförytterliga och okränkbara rättigheter. Behandlingen i riksdagen ledde till ett enhälligt beslut i enlighet med KU:s förslag. Det gjordes dock ett inlägg i debatten som är intressant därför att frågan om bakgrund och motiv till rättigheterna här berördes. Inlägget gjordes av riksdagsledamoten Vilhelm Lundstedt (s) som var professor i civilrätt med romersk rätt vid Uppsala universitet. Med anknytning till Axel Hägerströms rättsfilosofiska tankar kritiserade Lundstedt de på naturrätten uppbyggda rättsteorier som bl. a. utgjorde grunden för hävdandet av att det skulle kunna finnas evigt giltiga mänskliga rättigheter. Han varnar i sitt inlägg för ett frihetsbegrepp som “ingenting annat [är] än ideologier, d.v.s. abstrakta föreställningar om vissa människors förhållanden och handlingsmöjligheter”. “Om sådana ideologiska frihetsprinciper fastslås i grundlag, kommer alltid förr eller senare den verklighetsfrämmande karaktären att framträda och på ena eller andra sättet vålla förvirring i lagstiftningsarbetet”. * Behandlingen i riksdagen 1938 ledde till att en utredning tillsattes redan i december samma år med professorn i statskunskap vid Stockholms högskola Herbert Tingsten 327

CARL-GUSTAF ANDRÉN som ordförande.5 Utredningen lade fram sitt betänkande i maj 1941.6 I direktiven ålades utredningen att ta upp “frågan om införande i regeringsformen av sådana principer, som för det fortbestående svenska samhället må anses vara av den fundamentala vikt, att de ej må utan grundlagsändring åsidosättas genom lagstiftningen”. Betänkandet anknyter på en rad punkter till motions- och utskottstexter och stöder där framförda synpunkter och förslag. Utredningen konstaterar också att de “fri- och rättigheter, varom här är fråga, [förenings-, församlings-, yttrande- och religionsfrihet samt den personliga äganderätten] höra till grundvalarna för det svenska statsskicket och det svenska rättssamhället överhuvud”. Därför är det viktigt “att de klart och tydligt inskrivas i vår främsta grundlag”. I direkt anslutning till detta konstaterande gör utredningen en mycket klar markering. Den skriver att det “icke i första rummet [är] fråga om att skydda de enskilda medborgarna, utan att stärka den svenska rättsordningen och därmed den svenska staten”, en formulering som säkerligen ska ses i direkt sammanhang med Sveriges läge i den akuta krigssituationen. Just detta påpekande, som sätter omtanken om staten i första rummet och inte den enskilde medborgaren, ledde till ett s.k. särskilt yttrande av ledamoten Ferdinand Nilsson. Denne gör i sitt yttrande gällande att formuleringen “för bort från naturrättsliga åskådningar, som ofta ligga till grund för teser om medborgerliga rättigheter av olika slag och oförytterligt egenvärde”. Det förefaller som om den principiella grunden för de föreslagna fri- och rättigheterna diskuterats, även om det inte finns några direkta textuella nedslag i betänkandet. I den bilaga om förhållandena i Förenta staterna som Herbert Tingsten utarbetat redovisar han klart och entydigt konstitutionstexternas naturrättsliga förankring. Han skriver: “Man utgick från att enligt naturlig rätt, som förelegat före samhällsbildningen och stadfästs genom densamma, medborgarna ägde rättigheter eller frihetssfärer, som varje statsstyrelse måste respektera’. Han citerar därefter konstitutionen för Massachusetts att “alla människor äro födda fria och jämlika samt äga vissa naturliga, nödvändiga och oförytterliga rättigheter”. Slutligen konstaterar han att dessa fri- och rättigheter uppfattas som ‘överstatliga med metafysisk helgd omgivna regler’. Jämförelsematerialet från Förenta staterna har dock inte påverkat motiven för utredningens ställningstagande. Förutom fokuseringen på att stärka den svenska rättsordningen och därmed den svenska staten så är utredningen angelägen att påpeka att “regleringen av medborgerliga fri- och rättigheter får icke givas en så absolut och ovillkorlig karaktär, att hinder uppstå för de ökade statsingripanden och de intrång i den enskildes frihet och självbestämningsrätt, som under särskilda förhållanden kunna vara erforderliga”. Innebörden i denna formulering står i direkt motsats till tanken på en naturrättslig grund, som skulle ge fri- och rättigheterna en 5

Övriga ledamöter i utredningen var professorn i statskunskap och statistik Georg Andrén (h), ledamot i första kammaren, möbelsnickaren Erik Fasth (s), ledamot i andra kammaren, redaktör FD Knut Pettersson (fp), ledamot i första kammaren och godsägare fil. lic. Ferdinand Nilsson. 6 SOU 1941:20. Betänkande med förslag till ändrad lydelse av § 16 regeringsformen.

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 odiskutabel, evig och oförytterlig karaktär. I stället hävdar utredningen här en rättspositivistisk linje som tillåter att även fundamentala principer kan upphävas och ändras, blott detta sker i betryggande grundlagsmässig ordning. Man framhåller dock att “ett sådant upphävande kan icke tänkas bliva satt i fråga, så länge Sverige förblir en demokratisk rättsstat”. Detta betänkande kom inte att remissbehandlas i vanlig ordning. Det blev inte heller föremål för bearbetning inom departementet utan blev liggande. Det aktualiserades först genom en motion från högerpartiet, nr. 50, av Georg Andrén m. fl. till riksdagens första kammare 1948. Förslaget till ändrad lydelse av 16 § i regeringsformen i enlighet med utredningsförslaget 1941 motiverades med att “även i våra dagar finns det starka strömningar, som hota de medborgerliga fri- och rättigheterna”. Man noterar att det i dagsläget inte finns några överhängande hot. “I en annan internationell situation” kan de dock “bliva till en allvarlig fara”. Risken är då att sådana krafter inte skulle låta sig hejdas av lag och rätt om de vill “kränka gamla svenska fri- och rättigheter, som länge betraktats som allmänmänskliga rättigheter”. Därför måste de ges grundlags karaktär. Vid behandlingen i KU (nr 17) i riksdagen 1948 understryker utskottet att i svensk rätt har av ålder ingått “bestämmelser, syftande till att skydda den enskilde tillkommande rättigheter mot godtycke och övergrepp från statsmakternas sida”. KU konstaterar vidare att “det står fast, att ett visst mått av frihet räknas såsom människorna tillförsäkrat på ett sådant sätt, att icke ens Konung och riksdag kunna förgripa sig därpå. Det är i kraft av dessa grundsatser som Sverige förtjänar kallas en rättsstat”. Mot denna bakgrund slår KU fast “att regeringsformens 16 § icke åt medborgarnas frihet och rätt ger ett ens tillnärmelsevis så säkert stöd som de stadganden av likartat innehåll, som återfinnas i flertalet främmande författningar”. KU påpekar i anslutning härtill att i den “allvarliga och prövande” tid som både Sverige och Europas övriga folk lever i är det “en naturlig uppgift att söka befästa den svenska rättsstaten genom att i regeringsformen infoga så vitt möjligt klara och bindande uttryck för dess grundsatser”. Likväl är man inte beredd att föreslå riksdagen att fatta beslut i enlighet med utredningens förslag. I stället bör hela frågan bli föremål för en ny allomfattande utredning. Den ovan citerade formuleringen i KU:s utlåtande att “det står fast, att ett visst mått av frihet räknas såsom människorna tillförsäkrat på ett sådant sätt, att inte ens Konung och riksdag kunna förgripa sig därpå” ger intryck av att vara influerade av ett naturrättsligt tänkande, främmande för samtida svensk rättstradition. Icke i något annat sammanhang har man i den svenska debatten åberopat förekomsten av fri- och rättigheter som inte kan ändras. Samtidigt är det intressant att notera att denna formulering tillkom i en period då man intensivt inom Förenta nationerna diskuterade utformningen av FN:s universella deklaration om mänskliga rättigheter, antagen den 10 december 1948.7 I den synnerligen engagerade diskussionen i FN 7

FN-deklarationen om mänskliga rättigheter hade av allt att döma inte något större nyhetsvärde i Sverige. I Svenska Dagbladets årsbok för 1948 nämns således ingenting om deklarationen vare sig under utrikesnyheterna för den 10 december eller i redogörelse för årets händelser.

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CARL-GUSTAF ANDRÉN under hösten 1948 anfördes ständigt motiveringar för de mänskliga rättigheterna med naturrättslig bakgrund. I denna principiella debatt om förankringen av de mänskliga rättigheterna och vad som gav garantierna för dem gjorde ingen av de svenska delegaterna något inlägg trots att förslagen till motiveringar gick stick i stäv mot den svenska rättsuppfattningen inom både rättsvetenskap och rättsväsen i Sverige. * 1948 års riksdags enhälliga beslut om att begära en ny utredning föranledde ingen åtgärd från Kungl. Maj:t. År 1954 tillsattes den s.k. Författningsutredningen “för att utifrån en samlad översyn av demokratiens funktionsproblem företaga en modernisering av vår författning”.8 Trots att det borde varit naturligt att till denna överlämna också den av riksdagen begärda utredningen om fri- och rättigheter gjordes inte detta. Lika litet gavs det i direktiven något uppdrag rörande denna fråga. I två likalydande motioner, denna gång från ledamöter inom folkpartiet i första och andra kammaren, gjordes 1958 i riksdagen ett nytt försök att få till stånd “en förnyad utredning rörande införande i regeringsformen av bestämmelser, som uttrycka för svensk rättsuppfattning fundamentala principer”.9 Motionerna hänvisar till vad som skett inom Europarådet genom antagandet 1950 av en gemensam för medlemsstaterna bindande konvention. Avsikten var att “slå vakt om vissa principer till skydd för enligt västerländsk rättsuppfattning grundläggande medborgerliga rättigheter”. Man hänvisade också till att Sverige ratificerat konventionen 1952. Motionärerna framhåller att “Sverige har därmed på ett internationellt plan förbundit sig att iaktta sådana rättsgrundsatser, som enligt riksdagens tidigare uttalade mening borde förlänas grundlagsskydd”. Mot bakgrund av vad som således skett internationellt framhålls i motionen “att vi inom landet ännu icke i vår rättsordning särskilt värnat om dessa för västerländsk rättsuppfattning grundläggande regler genom att uppta dem i grundlagen är därför förvånande”. KU (B 2) anslöt sig i sitt utlåtande till motionernas uppfattning. “Utskottet anser det alltså angeläget, att de för den svenska rättsordningen fundamentala principerna givas det skydd, som ett grundlagsfästande innebär”. Däremot ansåg utskottets majoritet inte behövligt att föreslå en riksdagsskrivelse till Kungl. Maj:t, eftersom författningsutredningen i en kommuniké meddelat att den redan tagit upp berörda frågor till behandling. Ansvaret för arbetet med att infoga någon form av rättighetsförklaring i den svenska lagstiftningen vilade alltså på författningsutredningen. I en kommuniké i februari 1961 i samband med utredningens sammanträde på Voksenåsen i Norge meddelade utredningen att den “enats om att i ett särskilt grundlagskapitel intaga bestämmelser om medborgarnas fri- och rättigheter”. Samtidigt avvisades tanken på 8

Om direktiven se slutbetänkandet SOU 1963:16. 1958 års riksdag. Motion B 218. Om utredning och förslag rörande införande i grundlag av vissa för svensk rättsuppfattning grundläggande principer. Bertil Ohlin m.fl. Likalydande i första kammaren, motion B 155 Sven Em. Ohlon m.fl. 9

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 upprättandet av en författningsdomstol. I författningsutredningens betänkande 1963 där förslag till en ny regeringsform presenteras handlar 2 kap i regeringsformen om “Grundläggande fri- och rättigheter”.10 Utredningen konstaterar att den svenska rätten av ålder “innehållit bestämmelser, som syftat till att skydda den enskilde mot godtycke och övergrepp från myndigheternas sida”. Man understryker också att de svenska grundlagarna när det gäller dessa fri- och rättigheter har “en inhemsk, svensk bakgrund”. Endast i mycket begränsad omfattning innehåller därför de svenska grundlagarna “bestämmelser som motsvarar de rättighetsförklaringar som regelmässigt ingår i andra demokratiska rättsstaters författningar”. Någon närmare principiell motivering för införandet av fri- och rättighetsbestämmelser i regeringsformen ger inte utredningen. Man påpekar att erkännandet av detta slag av rättigheter “kan ses som ett uttryck för respekten för den enskilda människan”. Man griper också tillbaka på att det har funnits en så lång tradition inom svensk rätt. Men avgörandet för vilka rättigheter som ska ingå i bestämmelserna vilar enbart på den lagstiftande makten. Enligt utredningen var det också viktigt att dessa fri- och rättigheter erhöll ett tillfredsställande skydd. Därför var författningsutredningen också i detta sammanhang positiv till lagprövnings– rätten, d.v.s. rätten att pröva en författnings grundlagsenlighet.11 Med sitt betänkande 1963 hade författningsutredningen lagt fram förslag till mer omfattande och genomarbetade bestämmelser om medborgerliga fri- och rättigheter än vad Sverige tidigare haft. Det skulle emellertid bli föremål för fortsatt överläggning och utredning innan riksdagen ville ta definitiva beslut. De olika politiska grupperna var inte heller eniga. Betänkandet blev föremål för en mycket omfattande och ingående remissbehandling. En utförlig sammanställning av remissynpunkterna utarbetades inom justitiedepartementet. Vad gäller avsnittet om fri- och rättigheter redovisas detta i SOU 1965:2.12 Många av remissinstanserna sluter upp bakom tanken på att ett avsnitt om frioch rättigheter ges plats i den nya regeringsformen. Högsta domstolen understryker värdet av ett kapitel om grundläggande fri- och rättigheter. De betecknas som “grundvalarna för ett rättssamhälle”. Svea hovrätt framhåller att “rättsskyddet för den enskilde” säkras bäst “genom att de väsentligaste principerna inskrives i 10 SOU 1963:16. Författningsutredningen: VI. Sveriges statsskick. Del 1. Lagförslag och SOU 1963:17. Författningsutredningen: VI. Sveriges statsskick. Del 2. Motiv. Förslag till regeringsform. 11 Om den principiella diskussionen om lagprövningsrätten och därmed spänningen mellan den lagstiftande och den dömande makten se bl.a. T. Vallinder, ’When the Courts Go Marching In’ och B. Holmström, ’Sweden’ (The Smaller Democracies) i C. Neal Tate and T. Vallinder (eds.), The Global Expansion of Judicial Power (New York University Press, New York 1995); F. Sterzel, Författning i utveckling. Konstitutionella studier. 33 Rättsfondens skriftserie (Rättsfonden 1998). 12 SOU 1965:2. Sammanställning av remissyttranden över författningsutredningens förslag till ny författning. Utarbetad inom justitiedepartementet. Del 1: Allmänna uttalanden samt 1 och 2 kap i förslaget till regeringsform.

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CARL-GUSTAF ANDRÉN grundlagen”. Hovrätten anknyter också till uttalandet i utredningen att ett införande av en fri- och rättighetskatalog främst skulle avse att stärka den svenska rättsordningen. I polemik häremot framhåller hovrätten att ‘djupare sett måste emellertid med skärpa hävdas, att det är de enskilda individerna som kommer i första hand’. Alla ställde sig inte bakom förslaget. Det fanns kritiska röster mot ett inlemmande av bestämmelser om fri- och rättigheter i regeringsformen. Skarpast i formuleringen var justitierådet Hjalmar Karlgren. Han konstaterar först att “vilken innebörd dessa stadganden skola anses äga och vilken uppgift de skola fylla är knappast fullt klart”. Han summerar sedan sina synpunkter i det sammanfattande omdömet ‘att rättighetsstadgandena i 2 kap. ej äro av beskaffenhet att böra inflyta i den nya regeringsformen. Att försvara deras upptagande i denna under åberopande av att stadgandena – om de än i och för sig, såsom rättsregler betraktade, äro föga värda – ändock skulle kunna utgöra visst stöd, eventuellt ett moraliskt eller psykologiskt sådant, för att i framtida lagstiftning och rättstillämpning upprätthålla ifrågavarande rättighetssystem låter sig enligt min mening icke med fog göra. Det kan ej gagna respekten för grundlagen, att denna innefattar stadganden om ett rättighetsskydd, som till övervägande del måste antagas bli illusoriskt, bliva mer sken än verklighet. Vackra ord, utan täckning av realiteter, äro i en lag – även grundlag – icke harmlösa. De kunna, såsom erfarenheten visat, göra ohägn’. Hans uppfattning delades också av andra remissorgan och speglade den tveksamhet som fanns att införa en särskild fri- och rättighetskatalog i grundlagen. Som redan påpekats tar betänkandet inte upp eller diskuterar frågan om varför fri- och rättigheterna skulle egentligen skulle tas med och vad som var motivet till att de skulle ges en särställning. I flera remissyttranden blir den däremot föremål för reflektion och diskussion. Majoriteten av ledamöter i Högsta domstolen understryker således att “den naturrättsliga doktrin som uppbar de i slutet av 1700-talet tillkomna rättighetsförklaringarna är numera i de nordiska länderna övergiven. Medborgerliga fri- och rättigheter anses icke längre vara några av naturen givna storheter; de få sitt innehåll bestämt av ett system av konkreta rättsregler”. Vad detta konkret betyder exemplifieras med hänvisning till innebörden i äganderätten. De rättsbestämmelser som reglerar denna har enligt Högsta domstolen “utformats på grundval av de vid varje tidpunkt i samhället rådande värderingarna och uppfattningarna”. Regeringsrätten anför också invändningar mot betänkandets förslag till katalog över fri- och rättigheter utifrån motivsynpunkter. “Den synes – säger regeringsrätten – ytterst bottna i ett äldre, naturrättsligt betraktelsesätt, som går ut på att dylika frioch rättigheter kan till sitt innehåll definieras oberoende av övriga rättsregler och sålunda äger en av rättsordningen oberoende existens”. Både politisk verksamhet och samhällsvetenskaplig forskning säges vara inriktad på att ge dem och “närstående begrepp en efter tidsförhållandena anpassad och i övrigt lämplig innebörd”. Justitierådet Hjalmar Karlgren vänder sig starkt mot vad han menar är bakgrundsmotiv även om de inte direkt kommer till uttryck. “Avfattningen [av stadgandena] ger intryck av naturrättsliga föreställningar, som eljest principiellt äro främmande för icke blott modern nordisk rättsvetenskap utan även, i stort sett, 332

MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 nutida nordisk rättstillämpning. Författningsutredningen kan dock icke antagas ha utgått från en sådan orimlighet som att de uppräknade rättigheterna skulle finnas till som sådana oberoende av rättsordningen, låt vara att de bleve av denna ‘erkända’ eller ‘skyddade’”. Också Sveriges juristförbund avvisar kategoriskt sådana tankar. Man konstaterar i sitt remissvar att “några absoluta fri- och rättigheter finns ej. Avvägningen mellan den enskildes och samhällets anspråk är beroende av samhällsförhållandena och måste kunna förändras allt efter som samhällsutvecklingen fortskrider”. Det är alltså domstolarna och de rättsvårdande myndigheterna som slår vakt om de rättspositivistiska tankarna att även de mänskliga rättigheterna är underkastade den successivt pågående lagstiftningen som i sin tur är beroende av samhällsutvecklingen. Av den anledningen kan det inte finnas några evigt gällande av rättsordningen oberoende stadganden om fri- och rättigheter. Svea hovrätt påpekar att frågan om vilka fri- och rättigheter som bör infogas i grundlagen beror helt på ‘den vid tillfället rådande allmänna meningen om vad som är väsentligt för medborgarna och samhället och på vilka områden riskerna för kränkningar kan väntas bli stora’. Denna syn på att bestämmelser om fri- och rättigheter inte får stå i vägen för en lagstiftning som bestäms av den aktuella samhällsuppfattningen möter i flera remissyttranden som ju redan framgått av citatet från bl.a. Högsta domstolen. I remissvaren diskuteras också frågan om hur man skapar garantier för att säkerställa medborgarnas fri- och rättigheter. Utredningens förslag var att ge dem grundlags karaktär. Detta får också stöd i remissyttrandena. Svea hovrätt konstaterar att om ‘de väsentligaste principerna inskrives i grundlagen’ säkras rättsskyddet för den enskilde. Högsta domstolen anser att den av utredningen föreslagna grundlagsregleringen visserligen är tvivelaktig och otillräcklig men att tanken att ge ‘ett grundlagsskydd åt väsentliga fri- och rättigheter för medborgarna’ bedöms så värdefull att man bör undersöka om det inte kan skapas bättre garantier. Enligt Högsta domstolen bör också vissa rättigheter ‘ha fullt grundlagsskydd, så att de ej kan inskränkas annorledes än genom ändring av själva grundlagen’. Kammarrätten och Riksåklagarämbetet är också tveksamma till om skyddet är tillräckligt. Riksåklagarämbetet menar att ‘vissa fundamentala fri- och rättigheter bör sålunda fastslås i grundlag och ges ett sådant skydd att de icke kan upphöra eller väsentligt inskränkas annat än genom grundlagsändring’. Hovrätten över Skåne och Blekinge uttrycker också tveksamhet och påpekar att det finns ‘mycket stora tekniska svårigheter då det gäller att grundlagsfästa medborgerliga fri- och rättigheter’. Trots sina påpekanden och tveksamheter är dock alla eniga om att de medborgerliga frioch rättigheterna måste garanteras ett så starkt skydd som möjligt. Det råder också total enighet om att detta bara kan åstadkommas genom att ge dem grundlags karaktär. En total garanti går däremot inte att skapa, inte ens därmed. Genom grundlagsändring kan den lagstiftande makten, dvs. riksdagen ändra och upphäva även dessa fri- och rättigheter, ett förhållande som skulle komma upp i den fortsatta debatten. Europakonventionen och FN-deklarationen om mänskliga rättigheter har självklart påverkat arbetet med en ev. fri- och rättighetskatalog i regeringsformen, 333

CARL-GUSTAF ANDRÉN även om både utredningen och flera remissorgan har försökt att hålla de internationella överenskommelserna på avstånd. Regeringsrätten gör således gällande att både Europakonventionen och främmande grundlagar lider brist på klarhet när det gäller bestämmelserna om fri- och rättigheter. Högsta domstolen framhåller att Sverige ju ratificerat Europakonventionen. ‘Sverige har därigenom folkrättsligt förpliktat sig att garantera envar, som befinner sig under svensk jurisdiktion, de i konventionen angivna fri- och rättigheterna.’ Svea hovrätt säger att när man ska bedöma vilka rättigheter som bör tas med finns det ‘anledning att anknyta till Europarådskonventionen om de mänskliga rättigheterna, vilka Sverige ratificerat’. Fredrika Bremer Förbundet vill gå ett steg längre och bara behålla 1 § i förslaget och i övrigt hänvisa till FN:s och Europa rådets förklaringar av de mänskliga rättigheterna. * Det fortsatta arbetet med grundlagsskydd för viktigare medborgerliga rättigheter överlämnades till den 1966 tillsatta grundlagsberedningen. I direktiven till denna framhölls bl.a. att ‘det går knappast, att såsom i förstone kanske förefaller näraliggande, lösa den föreliggande uppgiften på det enkla sättet, att man låter grundlagen med rättsligt bindande verkan fastslå existensen av vissa namngivna rättigheter’. I stället borde beredningen inrikta sig ‘på vissa essentiella kvaliteter hos det regelsystem, på vilket en viss rättighet anses vila, och slå vakt om dem i grundlagsstadganden med så konkret utformning som möjligt’. Utredningen föreslås att pröva denna metod. I sitt betänkande 1972 redovisar grundlagsberedningen de olika och divergerande uppfattningar som rått inom den.13 Vissa ledamöter ville att regeringsformen skulle ‘innehålla sådana bestämmelser om medborgarnas fri- och rättigheter som inte kan sättas åt sidan genom vanlig lag’. Andra ville att den också måste innehålla ‘en programförklaring angående välfärdsstatens strävanden för ekonomisk, social och kulturell utveckling och utjämning’. Resultatet blev en kompromiss genom att de olika grupperna medvetet gjorde avkall på sina krav för att på så sätt kunna lägga fram ‘ett så långt möjligt enhälligt förslag’. Beredningen föreslog ‘utan meningskiljaktigheter att den nya grundlagen i vissa hänseenden slår fast klara regler om skydd för medborgerliga rättigheter’. Man underströk också att det fanns ‘skäl att i grundlagen försöka uttrycka vissa av de grundsatser som av ålder ansetts särskilt betydelsefulla för medborgarnas möjlighet att verka politiskt’. Därför sökte man också att i regeringsformen reglera bestämmelser om yttrandefrihet, rätten till information, mötesfriheten, demonstrationsrätten, föreningsrätten, religionsfrihet, rörelsefrihet och den personliga friheten i övrigt, här konkretiserad i förbud mot bl. A. tortyr, kroppsliga ingrepp och dödsstraff, alla ‘sedan länge bannlysta i vårt land’. Grundlagsberedningen presenterade i sitt betänkande ett begränsat antal politiska och personliga fri- och rättigheter som borde ges skydd. Några motiv till eller 13

SOU 1972:15. Ny regeringsform. Ny riksdagsordning. Betänkande avgivet av grundlagsberedningen.

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 kriterier för att just dessa skulle skyddas redovisas inte. Man talar i ett fall om ‘grundsatser som av ålder ansetts särskilt betydelsefulla’ och hänvisar därmed indirekt till den tradition på detta område som skapats. I sin proposition om en ny författning (prop. 1973:90) lade regeringen förslag om ett särskilt kapitel om medborgerliga fri- och rättigheter. Departementschefen påpekar där att de fri- och rättigheter som varje svensk medborgare upplever som självklara – dvs yttrande- och informationsfrihet, religionsfrihet, föreningsfrihet och demonstrationsfrihet – de har alla vuxit fram och ‘tagit form genom att statsmakterna har reglerat och garanterat dem i vanlig lag’. Det är därför naturligt att bestämmelser om sådana fri- och rättigheter införs i grundlag. De internationella ‘konventionernas främsta värde ligger i själva konventionsinnehållet och i att Sverige genom att ansluta sig till konventionerna förpliktat sig att respektera dessa’. Att införliva dem i svensk rätt stöter däremot enligt departementschefen på ‘praktiska och tekniska svårigheter’. I stället bör enligt honom ‘ett begränsat antal fri- och rättigheter som allmänt anses vara av särskild betydelse’ regleras i grundlag. Samtidigt återkommer man i propositionen till tidigare påpekanden att regleringen av fri- och rättigheterna inte får ha ‘sådant innehåll att den omöjliggör eller allvarligt försvårar lagstiftning till skydd för väsentliga samhälleliga eller enskilda intressen’. I riksdagen 1973 framhöll KU i sitt utlåtande (nr 26) att de politiska fri- och rättigheterna var ‘förutsättningar för vår samhällsordning’ och att det därför rådde fullständig enighet om värdet av dem och om ‘vikten av att slå vakt om dem’. När det gällde omfattning och utformning var de politiska partierna dock inte ense. KU:s förslag blev därför – och här var man helt enig – att en ny utredning skulle tillsättas ‘för att i hela dess vidd på nytt överväga frågan om regleringen i grundlag av skyddet för enskildas fri- och rättigheter’. Riksdagsdebatten som blev ganska intensiv och omfattande påverkades givetvis av förslaget om tillsättande av en ny utredning som alla ställde sig bakom. Samtidigt poängterade man hur viktigt det var att fri- och rättigheterna verkligen gavs ett starkt grundlagsskydd. Utredningen skulle också pröva vilka rättigheter som borde ges denna särställning. Några kriterier för urvalet diskuterades dock inte. I den nya regeringsformen 1974 infördes visserligen vissa medborgerliga fri- och rättigheter men riksdagen var helt medveten om att den utformning de getts där hade en interimistisk karaktär. I Riksdagsberättelsen år 1974 redovisas direktiven till den nya utredningen, tillsatt av justitiedepartementet.14 Utredningen bör ‘sträva efter att uppnå ett utbyggt skydd i grundlag för de politiska fri- och rättigheterna’. Den skall vidare ‘överväga frågan om en vidgning av rättighetsområdet i övrigt’. Detta blev också utredningens två huvudfrågor.

14

Riksdagsberättelsen år 1974. Kommittéer. Justitiedepartementet Ju:61.

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CARL-GUSTAF ANDRÉN * Med stor snabbhet arbetade 1973 års fri- och rättighetsutredning sig fram till sitt betänkande som presenterades 1975.15 Grundvalen för bedömningar är enligt utredningen att ‘de grundläggande fri- och rättigheterna ger uttryck för värderingar som är oupplösligen förbundna med demokratins idéer’. I anslutning härtill och som ett extra stöd hänvisar utredningen till den särställning som rättigheterna på vissa håll uppfattats ha: ‘deras betydelse för den enskilde och för folkstyrelsen belyses av att de ofta har uppfattats som något en gång för alla givet, något som faktiskt existerar utanför och oberoende av den vanliga rättsordningen’. Utan att direkt apostrofera den i många internationella sammanhang framförda naturrättsliga uppfattningen anknyter man indirekt till sådana tankar. Resultatet av utredningsarbetet blev att antalet fri- och rättigheter föreslogs utökat. Kapitel 2 i regeringsformen fick genom förslaget en annan utformning. Huvuduppgiften för en rättighetsreglering i grundlag är enligt utredningen ‘att i krislägen och liknande situationer skydda de grundläggande demokratiska värdena mot tryck utifrån och mot attacker från anti-demokratiska opinioner inom landet’. För att förhindra möjligheter att snabbt genomföra inskränkningar i friheterna föreslog utredningen regler som skulle försvåra förändringsproceduren. Dessutom ville man ytterligare stärka skyddet genom att grundlagsfästa lagprövningsrätten. Denna innebar att en domstol skulle ha rätt att pröva om en lag stod i överensstämmelse med eller i strid mot grundlagen. I senare fallet skulle domstolen kunna låta bli att tillämpa lagen. Ett fullföljande av dessa intentioner leder dock till ett dilemma. Rättighetsregleringen måste för att få önskvärd effekt ‘sätta gränser också för riksdagens handlingsfrihet’. Samtidigt får den inte hindra den ordinära lagstiftningen. Ett ‘restlöst skydd’ går därför enligt utredningen inte att få till stånd och det har inte heller uppnåtts i de internationella konventionerna eller i främmande staters grundlagar. Man är också angelägen om att framhålla att man följt en svensk linje. Utformningen av rättighetskapitlet har ‘skett utan direkt anknytning till’ de konventionstexter som Sverige anslutit sig till. Utredningens förslag präglades av en långt driven strävan att uppnå största möjliga enighet och de politiska partierna hade vinnlagt sig om kompromisser för att nå fram till ett i stort sett gemensamt förslag. I en reservation påpekade dock Per Ahlmark (fp) att ‘det sägs ibland att flera av fri- och rättigheterna är ´absoluta´ i den meningen att de är inskrivna i grundlagen och inte medger inskränkning genom vanlig lag’. De är dock inte mer ‘absoluta’ – påpekar han – än att de om man följer förslagets regleringsordning kan ändras på mycket kort tid. Det förslag till ändring av regeringsformen som regeringen framlade vid 1975/76 års riksdag följer nästan helt utredningen, dock togs lagprövningsrätten inte med.16 Någon diskussion om motiv eller kriterier förs inte heller i propositionen lika litet som i remissvaren. Departementschefen gör dock i sin föredragning en klar 15

SOU 1975:75. Medborgerliga fri- och rättigheter. Regeringsformen. Betänkande av 1973 års fri- och rättighetsutredning. 16 Prop. 1975/76:209 om ändring i regeringsformen.

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 distinktion med direkt anknytning till utredningen ‘vad gäller gränsdragningen mellan absoluta och icke-absoluta rättigheter samt i fråga om regleringen av möjligheterna att begränsa de icke-absoluta rättigheterna’. Det har alltså utvecklat sig en bestämd vokabulär som återkommer i riksdagsdebatten när det gäller att karakterisera rättigheterna. Man talar i diskussionen om två typer av rättigheter dels de ‘absoluta, odelbara’, de ‘bindande, absoluta’ och de ‘absoluta, undantagslösa, icke inskränkbara’ dels de ‘icke absoluta’ rättigheter som måste kunna begränsas, eftersom – enligt Olof Palme (s) – ‘alla fri- och rättigheter kan inte vara absoluta’. Bertil Fiskesjö (c) påpekar att det finns ‘inte så många friheter, så många rättigheter’ som kan tillhöra den första kategorin eftersom vi ‘ständigt måste vara beredda att ta hänsyn till varandra’ om ‘vi inte skall trampa våra medmänniskors friheter och rättigheter i gruset’. Torbjörn Fälldin exemplifierar de ‘absoluta’ rättigheterna med en uppräkning ‘t.ex. förbud mot dödsstraff, skydd mot annat kroppsstraff, skydd mot åsiktsregistrering, förbud mot rättighetsbegränsning enbart på grund av åskådning, förbud mot diskriminering på grund av ras eller kön’. Han tar också upp den andra gruppen som innehåller ‘yttrandefrihet, informationsfrihet, mötesfrihet och demonstrationsfrihet’. Här måste enligt honom en begränsning kunna göras med ‘hänsynen till medmänniskors frihet och till gemensamma intressen i samhället’. Debatten blev omfattande men strävan efter enighet var påfallande. Syftet med reglerna var att ‘skydda den personliga integriteten och den enskilda människans frihet’. Vad är det då som anses avgöra vilka fri- och rättigheter som ska skyddas? Johansson (s) från Trollhättan framhåller att de föreslagna fri- och rättigheterna ‘bygger på en bred förankring i den allmänna opinionen’. En liknande formulering använder Torbjörn Fälldin då han understryker att de ‘har vuxit fram till en levande praxis’ och Gösta Bohman (m) poängterar att det rör sig om’allmänt erkända fundamentala rättigheter’. Att de tas in i grundlag ger dem en särställning som garanteras genom den breda demokratiska värdegemenskapen i landet. * Riksdagsbeslutet 1976 innebar att det andra kapitlet i regeringsform fick en ny utformning. Antalet fri- och rättigheter utökades och skyddet förstärktes dock utan att lagprövningsrätten grundlagsfästes. Ändå var frågan inte slutbehandlad. Man enades om att tillsätta en ny utredning om förstärkt skydd för övriga rättigheter. 1978 lade utredningen fram sitt betänkande.17 Där förklarar man att man inom utredningen diskuterat om ‘icke det rättsskydd, som genom regeringsformen tillförsäkras medborgarna gentemot det allmänna borde utsträckas till att gälla det samhälleliga livet som helhet och således även förhållanden mellan enskilda’, dvs frågor i anknytning till arbetsplats och arbetsrättsliga regler. Utredningen konstaterar dock att den inte ‘funnit skäl att föreslå sådana grundlagsändringar som skulle medföra att helt nya principer måste komma till uttryck på det arbetsrättsliga 17 SOU 1978:34. Förstärkt rättighetsskyddsutredningen.

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CARL-GUSTAF ANDRÉN området’. Några förslag om att ytterligare fri- och rättigheter skulle tas in i grundlagen framfördes inte. Förslaget handlade i stället enbart om hur rättsskyddet för den andra gruppen av redan fastställda rättigheter skulle kunna förstärkas. Utredningen föreslog också att den tidigare diskuterade och kontroversiella lagprövningsrätten skulle grundlagfästas. Regeringen gick i sin proposition på samma linje.18 Den börjar med att konstatera att vissa fri- och rättigheter genom ändringarna i regeringsformen 1976 därmed beretts ‘ett absolut grundlagsskydd’. De övriga fri- och rättigheterna ‘skyddas dels genom att regeringsformen fastslår deras existens, dels genom att de inte får begränsas annat än genom lagstiftning, dvs. efter beslut av riksdagen, och dels genom att det i grundlagen anges i vilken utsträckning begränsningar får göras’. I propositionen upprepas påståendet om att det råder ‘allmän enighet om att å ena sidan medborgarnas aktiva demokratiska medvetande utgör det starkaste skyddet för de grundläggande fri- och rättigheterna men å andra sida ett betydande värde också ligger i att dessa fri- och rättigheter kommer till uttryck i grundlagen’. Riksdagen följde utredningsförslaget och regeringens proposition som stöddes av konstitutionsutskottet. I debatten framhöll Hilding Johansson (s) att det ‘finns en risk att man anser friheterna vara säkrade genom de grundlagsbestämmelser som antas, men så är inte fallet. Det avgörande är det värde som medborgarna tillmäter dessa friheter och därmed medborgarnas villighet att uppehålla dem’. Genom riksdagsbeslutet utökades skyddet för rättigheterna också med att lagprövningsrätten fastställdes i grundlag. * Ytterligare ett steg i strävandena att slå vakt om de mänskliga fri- och rättigheterna togs 15 år senare. Ännu en parlamentarisk utredning, Fri- och rättighetskommittén, tillsattes 1991 med presidenten vid Göta hovrätt Carl Axel Petri som ordförande. En av huvudfrågorna för denna var hur Europakonventionen, som under rådande förhållanden inte var ‘direkt tillämplig i svensk rätt’, skulle kunna inlemmas i svensk lagstiftning antingen genom integration i lagstiftningen eller genom inkorporering av hela konventionen.19 Utredningen fann att svensk lagstiftning stod i överensstämmelse med Europakonventionen och att den därför inte såg ‘några svårigheter att inkorporera konventionen’ i dess helhet i den svenska lagstiftningen, en klart förändrad inställning till konventionen i jämförelse med de tveksamheter som anfördes i diskussionerna i början av 1970-talet. Ett viktigt argument var att Europakonventionen ‘ingår i den s.k. EG-rätten’ och att den är ‘den absolut effektivaste konventionen när det gäller att skydda mänskliga rättigheter’. Utredningen ville inte föreslå att konventionen skulle ges grundlags karaktär men att den skulle ‘gälla som lag i vårt land’. Däremot ansågs det viktigt att någon ‘form av

18

Prop. 1978/79:195 om förstärkt skydd för fri- och rättigheter. SOU 1993:40. Fri- och rättighetsfrågor. Regeringsformen. Del A. Delbetänkande av Frioch rättighetskommittén. 19

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MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 garanti’ skulle införas i regeringsformen så att ‘lag eller annan föreskrift inte får meddelas i strid med Europakonventionen’. Utredningsförslaget hade tillkommit i samverkan mellan partierna för att försöka nå största möjliga enighet. Regeringen följde också förslaget i sin proposition till riksdagen.20 I den understryker regeringen bl.a. att ‘någon risk för konflikt mellan Europakonventionens bestämmelser och föreskrifterna i 2 kap. regeringsformen inte gärna kan uppstå. I den mån de två regelsystemen inte ger samma skydd kommer den regel som går längst att bli den som avgör hur långt skyddet för fri- och rättigheter sträcker sig. Med andra ord kompletterar regelsystemen varandra’. I förhållande till bestämmelserna i 2 kap. av regeringsformen påpekas det i propositionen att inkorporeringen stärker medborgarnas fri- och rättigheter och att ‘det i praktiken är konventionens bestämmelser som skall tillämpas’. Både KU (nr 24) och riksdagen följde förslaget. I lagen om den europeiska konventionen angående skydd för de mänskliga rättigheterna och de grundläggande friheterna 1994 slås fast att konventionen ‘skall gälla som lag här i landet’.21 Det svenska samhället erhöll genom den nya lagen en omfattande komplettering av RF:s tidigare bestämmelser om medborgarnas fri- och rättigheter. Några motiveringar till fri- och rättigheterna diskuterades däremot inte vare sig i utredningsarbetet eller vid riksdagsbehandlingen. * Med riksdagsbeslutet 1994 avslutades den mer än 65-åriga debatten om att ge vissa medborgerliga fri- och rättigheter en plats i regeringsformen. Den första fasen gällde frågan om dessa rättigheter skulle införas i regeringsformen, den andra gällde främst frågan om vilka rättigheter som skulle tas med, den tredje hur rättsskydet skulle kunna förstärkas främst för de rättigheter som ej erhöll ‘absolut’ grundlagsskydd och den fjärde hur Europakonventionen skulle kunna infogas i svensk rätt. Under hela denna utveckling har frågan om vilka fri- och rättighetern som skulle tas med varit central. Ändå har egentligen inte motiv och kriterier för urvalet av dem diskuterats mer ingående och inte med utgångspunkt i de konventioner om mänskliga rättigheter som Sverige anslutit sig till. Tvärtom har man vid flera tillfällen noga påpekat att det inte är konventionerna som legat till grund för preciseringen. Om man vill söka summera den 65-åriga utvecklingen kan man göra det utifrån tre aspekter. Den första gäller benämningarna av rättigheterna. Här möter egentligen tre olika uttryckssätt. De kallas ‘allmänmänskliga rättigheter’, ‘allmänna medborgerliga fri- och rättigheter’ och ‘fundamentala fri- och rättigheter’. Alla dessa tre benämningarna vill uppenbarligen understryka och särskilt markera att de avser alla medborgare, i ett vidare perspektiv också alla människor.

20

Prop. 1993/94:117. Inkorporering av Europakonventionen och andra fri- och rättighetsfrågor. 21 SFS 1994:1219. Lag om den europeiska konventionen angående skydd för de mänskliga rättigheterna och de grundläggande friheterna.

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CARL-GUSTAF ANDRÉN Den andra aspekten gäller karakteriseringen av rättigheterna. Här möter vi en mer differentierad terminologi. De kallas ‘fundamentala’, ‘självklara och orubbliga’, ‘omistliga’ och ‘oantastliga’. Ett annat sätt att karakterisera dem är att beskriva dem som ‘absoluta’. I många fall används termen absolut i kombination med andra ord, tydligen för att ge ytterligare eftertryck åt deras speciella innebörd. De karakteriseras således som ‘bindande absoluta’, ‘absoluta, odelbara’, ‘absoluta, undantagslösa, icke inskränkbara’, ingen har rätt att ‘förgripa sig på dem’. Med denna starka och laddade vokabulär vill man tydligen understryka att de fri- och rättigheter det gäller har en så grundläggande karaktär att de inte bör eller får ändras – samtidigt öppnar man i lagregleringen en möjlighet att i demokratisk ordning göra detta genom grundlagsändring. Den tredje aspekten belyser rättigheternas legitimitet, dvs. frågan om motiven och vad som gör rättigheterna berättigade till en så stark ställning. Också här kan man se hur man valt att poängtera olika motiv och kriterier. En lite utförligare motivering ger Robert Malmgren i sitt tidigare citerade uttalande i boken Sveriges grundlagar, 1937. Där avvisar han först tanken att det skulle kunna finnas några ‘medfödda och oförytterliga, med den mänskliga personligheten oupplösligt förknippade rättigheter’. Han konstaterar i stället att det som gör vissa rättigheter omistliga beror på att ‘de mänskliga kraven och livsbehoven hos folk med enahanda kulturstandard och likartad social åskådning komma vissa värden att te sig som självklara och orubbliga’. Ett annat skäl är att de har sin position i samhället därför att de ‘länge betraktats såsom allmänmänskliga’. Hänvisning görs också till att de ‘av ålder’ uppfattats som grundläggande, dvs. de utgör rättigheter som successivt vuxit fram och i opinion och lag kodifierats inom samhället. Anknytningen till samhället som ett viktigt motiv till deras status utvecklas vidare då man konstaterar att deras legitimitet egentligen hör samman med deras ‘breda förankring i allmänna opinionen’ och att deras existens beror ‘av den allmänna meningen’ liksom av ‘det värde medborgarna tillmäter dessa friheter’. Därmed har de kommit att ingå i det svenska demokratiska samhällets grundläggande värdegemenskap. Endast denna kan ge dem den ställning och acceptans att de kan åberopas som ett skydd för den enskilde. * Det finns alltså en klar linje i den 65-åriga debatten i vårt land om vilka argument som kan anses hållbara för att de föreslagna fri- och rättigheterna ska kunna betraktas som fundamentala och absoluta. Tanken på att de skulle ha en naturrättslig förankring avvisas genomgående, även om naturrättsbegreppet inte apostroferas mer än i sällsynta fall. Ändå förefaller det ibland som om sådana tankar – omedvetet – ligger bakom en del av resonemangen och argumenteringarna. Men några eviga oföränderliga rättigheter vid sidan om den rättsordning som upprätthålls genom den lagstiftande riksdagens demokratiska beslut accepteras officiellt inte. Samtidigt finns det under hela processen en målmedveten strävan från alla håll att ge dessa fri- och rättigheter en så stark ställning att de egentligen inte ska kunna upphävas eller 340

MEDBORGERLIGA FRI- OCH RÄTTIGHETER I REGERINGSFORMEN 1974 förändras. Detta menar man ska kunna ske genom demokratiska beslut som slår vakt om en sedan länge allmänt accepterad rättstradition. Genom att ge dessa rättigheter grundlags karaktär och skydd ansåg man uppenbarligen att det i praktiken skulle visa sig nästan omöjligt att upphäva eller förändra dem och de skulle upplevas som ovillkorligt förpliktande. Därmed hade man nått så nära absoluthet och oföränderlighet som man kunde.22

22

Det är intressant att jämföra uppfattningarna om fri- och rättigheternas begrundning så som de motiveras i den parlamentariska diskussionen med vad Stig Strömholm och Svante Nycander anför om rättens legitimation i sin bok Makten över rätten, 1991. Stig Strömholm anknyter här till tyska efterkrigsjuristers bruk av termen ”historisk naturrätt”. Han preciserar den som ”en uppsättning rättsprinciper, som kan formuleras med ledning av den västerländska mänsklighetens disponibla erfarenhetskapital, rationalitetsföreställningar och med åtminstone bred konsens omgärdade etiska idéer”. Svante Nycander uttrycker i sitt brevsvar en acceptans då han framhåller att om man resonerar så ”går det också att intellektuellt hantera förhållandet mellan demokratin och den traditionella rätten, den som Du kallar ‘historisk naturrätt’”. S. Strömholm och S. Nycander, Makten över rätten, fjorton brev om juridik och politik (Norstedts 1991) s. 28 och 35.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN – CHALLENGES AT UNITED NATIONS’ CONFERENCES1 Elisabeth Gerle* 1. Introduction During various conferences and trips to different parts of the world I have conducted interviews with people on how they view the situation for human rights in their country.2 Official representatives or people with close connections to the government, be it in China, Egypt or Peru, have all affirmed the strong status of human rights in their country. In their answers they have often referred to established religious or cultural traditions as a source of inspiration and a guide. Chinese representatives refer to Confucian understanding of harmony between people, Egyptian intellectuals refer to the Q’uran and Islam as the source of all human rights, and Roman Catholic scholars in Peru point to the respect for human dignity that follows from biblical faith in creation. Some admit that pursuing human rights is hard work and that it is a long way ahead of them. Most of them know of the human rights discourse at the United Nations. Yet, an even more basic understanding of human rights is often expressed in relation to their own cultural traditions. Influences from the United Nations seem secondary. Of course this may be a way of internalizing the international agenda. On the other hand, talking to people at grass roots level reveals complaints that could easily be described as human rights violations in the UN terminology, including violations against civil and political rights, as well as against social, economic and cultural rights. This is also visible among women, who do not always interpret such complaints as violations of human rights. Given my experience of following debates on human rights at Special Conferences and Sessions at the United Nations it seems obvious that the understanding and interpretation of what human rights means varies considerably. Interpretations are only partly related to official UN documents and the global discourse on human rights. Many tend to connect human rights mainly with procedural rights such as the right to vote and the existence of a multi-party system. In interviews and discussions in regions far away from the UN headquarters in New York, human rights can also be understood as a 1

Parts of this article has been published before in Diana Amnéus and Göran Gunner (eds.), Mänskliga rättigheter – från forskningens frontlinjer (Iustus, 2003). * Senior Reader in Ethics at Lund University, Dean Pastoral Institute, Lund. 2 Some of these visits and interviews have been undertaken in relation to conferences organized by Lund University, (Cairo and Alexandria, 2002); The Swedish National Council for Research, FRN and its Comité on Globalization, (Beijing 2000; Singapore and Cape Town, 2001); and The Swedish Lutheran Church, 2002 (Peru). 343

ELISABETH GERLE preoccupation for a privileged middle class. For instance, demonstrations in Hong Kong in June 1989 against article 23 were described as a struggle for human rights while concerns for immigrant domestic workers such as Filipina maids were not seen as a human rights issue.3 One way of understanding the varying answers from official representatives and ordinary citizens is to see them as part of the ‘spiral mode’ of human rights as described by Rissen and Sikkin.4 They argue that international human rights norms as formulated in the Universal Declaration of Human Rights (UDHR) affect domestic policies by putting norm-violating governments on the international agenda by empowering and legitimating the claims of domestic opposition groups and by pressuring norm-violating governments. These steps, that is, raising moral consciousness and mobilizing domestic opposition and sanctions, are part of a spiral mode of human rights change where society, state and international/transnational networks interact. According to Rissen and Sikkin, enduring change usually requires political transformation and the internalization of international norms at a domestic level. In my analysis of some of the debates at the United Nations one can find evidence of at least five stages in this process, namely repression, denial, tactical concessions, prescriptive status and ruleconsistent behaviour. However, what is of special interest to me is the rhetoric language and the kind of rationalization that is being used in these debates. What kinds of discourses occur at the United Nations? The varied conversations and answers from different parts of the world convey a fragmented picture to me that I wanted to use in my academic writings. My perceptions led me to wonder about how this could be described academically when most of our methods are constructed from a purely rational logic. Hence, I started to look for methods that took such intuitive perceptions seriously. 3 Around 4 June 1989, nearly a million Hong Kong citizens walked into the streets to support the democratic movement in China. Soon after, the central government of Mainland China added a policy to the draft of the Basic Law of Hong Kong, the Hong Kong Constitution, that the Hong Kong government can establish a law against subversion (Article 23). At that time, some people in legal circles opposed it and claimed Article 23 does not conform to the democratic climate and spirit of freedom in Hong Kong. The final draft of Article 23 of the Basic Law of Hong Kong, published in April 1990, is as below: ‘The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.’ <www.againstarticle23.org/en/newsdetails.php?id=112>. 4 T. Rissen, and K. Sikkik, ‘The Socialization of international human rights norms into domestic practices: Introduction’, in Riss, T. et al. (eds.), The Power of human rights: International norms and domestic change, (Cambridge University Press, Cambridge, 1999), pp. 1–38.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN Sven Sandström, Professor of Art, has developed the idea of intuitive vision as a method for use in academic research.5 While language is lineal, a picture is multidimensional, spatial.6 With this intuitive vision that we use to understand pictures and paintings we are able to “think intuitively not only in perception but also in reflexion”.7 Intuitive understanding is spatial and means that we refer to several concepts in mutual relationships simultaneously. Peter Gärdenfors, Professor of Cognitive Science, has elsewhere described thinking as ‘conceptual spaces’.8 In the article ‘Intuition as Implicit Knowledge’, to describe intuition he refers to a story about Sherlock Holmes.9 Holmes explains how he was right at first sight: “From long habit the train of thoughts ran so swiftly through my mind that I arrived at the conclusion without being conscious of intermediate steps”.10 Gärdenfors claims that this is a perfect account of intuitive knowledge. However he disagrees on the attempt to give a rational justification to the process by claiming that there was a train of reason. “This train is an attempt to construct a rational justification for the conclusion after it has been reached. And justifications must be explicit, so, more or less by definition, they cannot rely on intuitions. Justifications are expressed in propositions, but the mechanisms behind implicit reasoning may not depend on language at all (unless one believes, as I do not, that all thinking is propositional).”11

He further holds that it is false to make a sharp distinction between the roles of cognition and emotion. Emotions are tightly connected to implicit learning.12 He agrees with Sandström that perception and communication perform different cognitive tasks. “Visual knowledge is based on perception while verbal knowledge is what can be communicated.”13 I decided to let my perceptions and my intuition guide me to ask special questions in relation to the debate on women and human rights that emerge in the context of special conferences of the United Nations. After my interviews in different parts of the world I had a sense that references to culture and religion are often made in relation to such human rights issues that a person was sceptical about, or, quite the opposite, to point out a deep relationship between someone’s own basic religious or cultural views that also were expressed in the international human rights discourse. Cultural and religious arguments thus seem to be used quite arbitrarily. 5

S. Sandström, Intuition och Åskådlighet (Carlssons, Helsingborg, 1995). Ibid., p. 7. 7 Ibid. 8 P. Gärdenfors, Conceptual Spaces: The Geometry of Thought (MIT Press, Cambridge, MA, 2000). 9 Ibid., p. 138. 10 A.C. Doyle, A Study in Scarlet (Berkley Publishing Corporation, New York, 1975), p. 24. 11 Gärdenfors, supra note 8, p. 138. 12 Ibid., p. 139. 13 Ibid. 6

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ELISABETH GERLE However, agreements and tensions around basic values in these debates can be formulated and made explicit. What I intuitively saw might be communicated by analyzing some of the argumentation. I wanted to understand how various actors interpret human rights. Where are the tensions to be found? These tensions arise in relation to which values? What references are being made to religious/cultural traditions? Are human rights seen as a secularized discourse or not? The metaphor for the logic I use is not a mechanical clock starting with a set of questions and definitions going around the hours announcing added insights as time passes, to end with a neat conclusion. Rather, the metaphor for my method is jazz. I first introduce the theme with some questions. The theme and the questions reappear in the analysis of a case study. They are discussed in a way that takes syncopation seriously, and where the basic rhythm allows many instruments to be heard and sometimes to provide for a solo improvisation before returning to the basic theme. At the United Nations, domestic and international languages meet in an intriguing dance. Local stories and domestic explanations are increasing their role at international gatherings, creating new patterns of power and unexpected alliances. This becomes even more visible when new actors are able to participate in this global dance with many different moves. 2. Case Study One example of emerging new actors around the United Nations is the Global Campaign for Women’s Human Rights. This campaign was initiated during the preparation process for the UN World Conference on Human Rights in Vienna in 1993 and has since maintained its visibility and influence at the United Nations.14 I will draw on this Campaign to analyze certain factors in this new development. The Campaign is first of all an example of globalization creating space for new actors contributing to international law and to the reinterpretation and expansion of the human rights discourse. I will demonstrate that many of the issues raised by the campaign in tribunals and hearings have had the effect of widening the discourse of human rights within the United Nations. Formerly invisible violations such as domestic violence, mass rapes, and lack of inheritance or rights to education and health are now increasingly being discussed in official governmental conferences. This has challenged the traditional human rights divide between private and public. Further, human rights violations and different understandings of what

14

Katarina Tomasevski, Professor at the Raoul Wallenberg Institute in Lund, prefers to talk about women and human rights, as women obviously do not have the same rights as men. Furthermore, she argues that the notion of women’s human rights might limit the focus to special or different rights for women in reference to pregnancy, motherhood, etc. rather than for their womanhood. K. Tomasevski, Women and Human rights, (Zed, London, 1993).

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN human rights mean are in “no way restricted to 'Third World' settings”.15 Consequently, the North-South divide is also cut through in this context. Naturally, these new participants have not only been met with applause but also with resistance. Tensions between various actors reveal deep contradictions and competing understandings of what the good life means. It is not only global women’s movements that have become active in the arena of the United Nations.16 Powerful religious actors such as the Holy See, as the Vatican prefers to be called internationally, have intensified their presence at the United Nations and its special sessions and conferences.17 The struggle over certain formulations during the processes of creating final documents indicates sensitive areas. I will point out how some expressions are being used to defend particular interpretations against what is developing as a major discourse at the United Nations. Some of the questions I will try to answer centre around the principal question of whether religious language is used at all in the UN discourse. Are there any references to Holy Scriptures, traditions or spiritual leaders? Are there any attempts to give secular and rational arguments for norms belonging to a specific religious tradition? What kind of alliances and competing interests are visible? How is the Campaign for Women’s Rights handling its relationship with traditions and religion? Does the Campaign pursue an entirely secular enlightenment agenda or does it try to reinterpret religion and traditions? Are these pursuits by necessity contradictory? In this article I will use materials from the Twenty-third Special Session of the UN entitled ‘Women 2000 - gender equality, development and peace for the twentyfirst century’, the so-called follow-up conference five years after the UN conference on women held in Beijing in 1995. It was therefore generally called Beijing + 5, a name I will use here as well. I will use official documents and statements but also 15

B.H. Weston, ‘The Universality of Human rights in a Multicultural World: Towards Respectful Decision-Making’ in Burns H. Weston and Stephen Marks (eds.), The Future of International Human Rights (Blackwell, New York, 1999), p. 68. 16 It is important to underline the fact that there are many different women’s movements with many issues on their agenda. Some, like the Women’s International League for Peace and Freedom, WILPF, focus on peace and justice, others such as Development Alternatives with Women for a New Era, DAWN, emphasize developmental issues. Others, such as the Campaign for Women’s Human Rights, which I am using as a kind of case study here, are especially focusing on human rights and women. Often, however, these various movements that hold many specific internal views and opinions, and emphasize various political strategies are forming networks and ad hoc committees at UN conferences where they pursue some shared values. 17 The Holy See is the supreme organ of government of the Roman Catholic Church. The Holy See consists of the Pope, the College of Cardinals and the central department that governs the church. It is, by definition, a non-territorial religious entity and its presence at the United Nations as a non-member state and as a ‘permanent observer’ is increasingly questioned. For a brief background on why the Vatican is treated as a sui generis state by the United Nations, and as such is able to participate fully and to vote in most conferences, see A. Rahman, ‘Church or State? The Holy See at the United Nations’, Summer:2 Conscience (1982).

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ELISABETH GERLE presentations made at the NGO forum in connection with the official UN conference, as well as interviews with the official Swedish delegation and with participants in the NGO community. During Beijing + 5 several patterns from earlier world conferences became visible. I will analyze how certain notions are being used by competing discourse on human rights in a global context. The sensitive areas hidden behind these notions reveal conflicts of values with great impact for the possibilities of implementing human rights for women such as the basic right to life and the right to liberty and security of the person.18 3. Women 2000 - Gender, Equality, Development and Peace for the twentyfirst century - Beijing + 5. “It use to be called honor killings, but I want to call them shame killings.” This was one of many statements made by the Secretary-General Kofi Annan in his opening of Beijing + 5. The General Assembly of the United Nations was gathered for a special session in New York, 5–9 June 2000. The Agenda was to report steps and achievements in implementing the Platform for Action agreed upon at the fourth UN conference on women in Beijing 1995. Kofi Annan’s statement can be heard as a sign of progress for the Global Campaign for Women’s Human Rights that has been active since the preparations for the UN World Conference on Human Rights in Vienna 1993. The explicit goal of the Campaign was to make visible violations of human rights in women’s lives, and to create awareness among women and governments that women have human rights, i.e. ensure that they are included in the human rights discourse. Another aim was to point out that many of the formulations in conventions and declarations turn a blind eye to the world of women. They focus on the public arena and the relationships between state and citizen but not on relationships between citizens. In practice this has led to negligence in the private domain, which for many women is the primary area where their human rights are violated. To blame the victim but not the perpetrator of sexual violence such as rape is just one example of such violations, something that in many cultures may lead to murder. If the rapist is not ‘kind’ enough to marry the raped woman the tradition may expect the family to kill the woman as a way of restoring the honour of the family. She is seen as having 19 drawn shame over the family. Therefore when the Secretary General of the United Nations refers to this tradition as shame killings in his opening address to the General Assembly, he is participating in changing global discourse. He is making something visible that has mostly been taboo even to mention and he is clear about 18 Articles 6(1) and 9(1) respectively of the International Covenant on Civil and Political Rights (1966) (ICCPR). 19 An example of a cousin who had raped his much younger female relative and who, according to her parents, was ‘kind’ enough to marry her afterwards was told by Nadera Shaloub-Kevorkian from Palestine at the Symposium Women 2000 - A Symposium on Future Directions for Human Rights at Columbia University, 4 June 2000, on the eve of the official UN conference.

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his values. With this statement, Annan is reaffirming the intentions behind the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) (1979) and even more so the formulations in the Declaration on the Elimination of Violence against Women (1993). In the preamble of the Declaration violence against women is pointed out as one of the main obstacles to the enjoyment of human rights for women: “Affirming that violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms, and concerned about the long-standing failure to protect and promote these rights and freedoms in relation to violence against women, Recognizing that violence against women is a manifestation of historically un-equal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of their full advancement, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.”

By using terms such as ‘shame killings’, Kofi Annan lends support to a moral discourse that is being launched by women in the Global Campaign for Women’s Human Rights. These views are already expressed in United Nations documents but often not adhered to. Such statements and discussions at the Beijing +5 conference cut across the division between private and public that has been permeating so many documents and interpretations of human rights. However women have increasingly challenged this polarization from all over the world. Hence, other issues have gradually found their way into UN declarations and conventions. 4. A Brief History of the Global Campaign for Women’s Human Rights The background to the Global Campaign for Women’s Human Rights is described in the preface to Demanding Accountability, a book that documents the Campaign’s organizing strategies leading up to, during, and after the World Conference on Human Rights (WCHR) in Vienna 1993.21 Jacqueline Pitanguy from Brazil points out a persistent pattern that seems to unite civilizations across centuries: “If there is one intriguing pattern that seems to cut across different countries and different civilizations, it is that a woman always is less 20

One could say that he is siding with women threatened by values deeply imbedded in socalled shame and honour cultures. However the notion of shame or honour cultures that is partly used by Annick Sjögren mayimply a too essentialist understanding of cultures. A. Sjöberg, Här går gränsen. Om integritet och kulturella mönster i Sverige och medelhavsområdet (Arena, Stockholm, 1993). 21 C. Bunch, and N. Reilly, Demanding Accountability, The Global Campaign and Vienna Tribunal for Women’s Human rights, (Center for Women’s Global Leadership and United Nations Development Fund for Women (UNIFEM), New York, 1994).

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ELISABETH GERLE entitled to rights than a man. This is so in spite of the inequalities of social class, race, ethnicity, religion, and culture that permeate societies and affect both men and women. Perhaps it is this puzzling universality that helps to explain why, more and more, women’s movements for equity and social dignity are becoming international.”22

The Center for Women’s Global Leadership (Global Center) convened a working group on women’s human rights in the New York area. Together with the International Women’s Tribune Center they issued a petition which called upon the United Nations World Conference on Human Rights “to comprehensively address women’s rights as human rights at every level of its proceedings” and to recognize “gender violence, a universal phenomenon which takes many forms across culture, race, and class... as a violation of human rights requiring immediate action”.23 The petition was distributed in English, Spanish, and French through various women’s networks. It was subsequently translated into 23 languages. By the time of the World Conference in 1993 over 1000 sponsoring groups had gathered almost half a million signatures from 124 countries. During this period regional movements for women’s human rights “were working to transform the limited interpretations and applications of human rights in their areas”.24 Many of the Third World women involved were able to attend regional preparatory meetings through the United Nations Development Fund for Women (UNIFEM). The lobbying for the inclusion of issues of concern for women in the Vienna proceedings and in the international human rights agenda in general went together with grassroots hearings in different parts of the world. In Vienna 1993 a Global Tribunal on Violations of Women’s Human rights was organized with four interconnected thematic sessions: - Human Rights Abuse in the Family - War Crimes Against Women - Violations of Women’s Bodily Integrity - Gender-based Political Persecution and Discrimination The intentions behind the Tribunal during the World Conference on Human Rights were threefold: Firstly, to help inform Non Governmental Organizations (NGOs) working with human rights about women’s human rights; secondly, to address the governmental delegates; and thirdly, to utilize the media present to bring broader mainstream attention to female human rights abuses as well as to violence against women generally.25 “The testimonies that women would recount at The Tribunal were to be symbolic of the situation of many thousands of women who could not be there. They would define, document, and make visible violations of women which the current conceptualization and practice of human rights 22

Ibid., p. v. Ibid., p. 5. 24 Ibid. 25 Ibid., p. 10. 23

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN had not adequately addressed. By bringing patterns of gender-based human rights violations to the foreground, Tribunal speakers would make women’s challenges to the international human rights community concrete. This tactic was essential, for if human rights are to be a defining value for people into the 21st century they must be more universal; women, as well as men, must have greater recourse to human rights instruments as a means of contesting abuses of their humanity.”26

This challenge to the United Nations, national governments and to the international human rights community sought to highlight several problematic areas such as the distinction between public and private, which often causes obstacles to women’s enjoyment of their human rights. Further, the Tribunal wanted to expose often ignored violations of women’s human rights in war and conflict situations. For instance, during the conflicts in the ex-Yugoslavia and Somalia rape and forced pregnancy were used as modes of ethnic cleansing and as military strategies. A third intention was to highlight “ways in which some claims to cultural and religious rights impede the universality of human rights with respect to women”.27 Fourthly, the Tribunal wanted to expose the gender-specific dimension of already recognized international human rights violations, such as attacks against non-combatants in conflict situations being recognized as human rights violations in humanitarian law, but “rape of women in these situations has only begun to be recognized as such”.28 The fifth intention was to underscore the implications for women of the secondary status of social, economic, and cultural rights relative to political and civil rights. An example that is mentioned is that “the undervaluation of women’s work and the exploitation of women in the global economy make women more vulnerable to further human rights abuses, such as family violence, compulsory marriage and forced prostitution”.29 The last two ambitions of the Tribunal were to expose government reservations to conventions such as CEDAW and to show that “violations of women’s human rights occur in both industrialized and ‘less developed’ countries”.30 As conventions are legally binding documents this was an important strategy. Ann Elizabeth Mayer points out that more reservations with a “potential to modify or exclude most, if not all, of the terms of the treaty” have been entered to CEDAW than to any other treaty.31 However many violations against women’s human rights and limitations in national legislation on women’s rights are condoned by governments by reference to 26

Ibid., p. 10. Ibid., p. 11. 28 Ibid., p. 12. 29 Ibid. 30 Ibid. 31 A.E. Mayer, ‘Rhetorical Strategies and Official Policies on Women’s Rights: The Merits and Drawbacks of the New World Hypocrisy’, in Mahnaz Afkhami (ed.), Faith and Freedom, Women’s Human rights in the Muslim World, (Syracuse University Press, New York, 1995), p. 105. 27

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ELISABETH GERLE culture or religion. Western intellectuals sometimes join force in an attempt not to fall into cultural imperialism. It has therefore been crucial that women from various regions of the world have given their own testimonies to human rights violations as something that cuts across cultures, religions and North-South divisions. Expressions of discrimination vary between cultures and regions while the systematic structures of subordination may be similar. The Global Campaign for Women’s Human Rights cuts across not only the private - public dichotomy but also the polarization of the universal and the particular. While the critique against universalism in the North as well as in the South often has had the intention of deconstructing Western hegemony veiled in universal language, the rhetoric of particularity in some contexts is now being used to neglect women’s rights as human beings.32 As we will see below, different notions or labels may support similar practices. In the West universal values have often been deconstructed by feminists as reflecting white men’s biases or to reinforce the norms of dominant groups.33 Political philosopher Iris Marion Young warns: “It is important to recall that universality of citizenship conceived as generally operated to exclude not only women but other groups as well. European and American republicans found little contradiction in promoting a universality of citizenship that excluded some groups, because the ideal that citizenship is the same for all translated in practice to the requirement that all citizens be the same.”34

However in contemporary debates notions such as asymmetry, diversity and particularity are increasingly being used to reinforce male hierarchies. References to cultural and religious particularity are often used by states to undermine the universality of women’s human rights.

32

Elina Vuola shows in her doctoral thesis how Liberation theologians in Latin America often have neglected women’s issues in their critique of Western imperialism: “A Marxist oriented political ethics which informs many liberation theologians and especially their understanding of praxis, as we have seen - presupposes the change of (economic, political, social) structures. A new ethics of sexuality and a new relationship between men and women would follow the change almost automatically. Or, a hierarchy of necessary changes is established in which ‘women’s issues’ and reproductive questions are seen as less important than macro level economic changes.” (p. 200). Vuola states in a footnote that feminists working with poor women found that “so-called taboo issues such as sexuality, reproduction, or violence against women were interesting and important to working-class women - as crucial to their survival as the bread-and-butter issues emphasized by the male opposition”. (p. 200, fn. 132). E. Vuola, Limits of Liberation, Praxis as Method in Latin American Liberation Theology and Feminist Theology (Suomalainen Tiedekatemia, Helsinki, 1997). 33 See e.g. I.M. Young, Justice and the Politics of Difference (Princeton University Press, Princeton, 1990). 34 I.M. Young, ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’, in Goodin, Robert E. and Philip Pettit (eds.), Contemporary Political Philosophy (Blackwell, Oxford, 1997), p. 258.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN Hence, not even a convention is a clear indication that governments are willing or able to comply. Bringing attention to governments who are obstructing the CEDAW Convention and to analyze their argumentation is therefore an important part of keeping the global conversation alive and an opportunity for formerly excluded groups to put pressure on their governments as concerned citizens. As I will explore somewhat more below, there are many alliances in the resistance against gender equality to be found not only in one part of the world or in one religion. Mayer points out that there is a tendency to think that it is mainly in Muslim countries that there are problems of accommodating women’s equality, but they are not unique: “The US can invoke its constitution and the Vatican can invoke natural law and Church tradition, just as Muslim countries invoke Islamic law. In all three cases, however, the common strategy is to appeal to the laws of nature, which have made women different from men. The rhetorical strategies attempt in all cases to establish that the speaker’s opposition to the principle of women’s equality as established in international law is based on higher laws that the speakers are powerless to alter.”35

I will show below that different and often quite contradictory notions are appealed to in the resistance against women’s autonomy. 5. Areas of Tension Ordinary formulations reveal competing values. One of the sensitive discussions at the special conferences of the United Nations has been how to define a family. How can that be? In most Western industrialized societies the word family gives associations to a nuclear family with father, mother and child/ren. In many traditional societies a family is much broader and encompasses grandparents, aunts, 36 uncles, cousins and possibly several wives. Why is this topic such an area of tension? The issue has arisen as a tension not between the nuclear small modern family and the traditional expanded family. The battle over whether the UN documents ought to use the notion family or families has to do with an overwhelming presence of single parent households, and relatives such as grandparents or aunts caring for children all over the world. Attempts to give samesex relationships and households an equal legal status as traditional families are also fuelling the debate. To mention families in plural would mean to acknowledge that many forms of families do exist and are in as much need of protection as the nuclear family. The Vatican, however, resists all forces that promote toleration of non-

35

Mayer, supra note 31, p. 105. Suzanna Smith gives an overview of different definitions of what a family is and suggests that there is no single, correct definition of a family. S. Smith, ‘Women and Households in the Third World’, in B.B. Ingoldsby and S. Smith (eds.),1995, Families in Multicultural Perspectives (The Gulford Press, New York 1997), p. 7. 36

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ELISABETH GERLE traditional, including homosexual, families.37 Furthermore, the increased awareness of violence within the family has challenged the notion that the family always gives the best protection. What seems to be at stake is the status of men. When people are allowed to construct male, or female, gender with greater variety, implicit gender hierarchies may be challenged. In the traditional patriarchal family, whether the expanded large family common in many African, Asian and Latin societies or in the Western nuclear family, the man is seen as the head of the family. The role of women is understood to be mainly in relation to procreation. Women are supposed to be mothers and caretakers of the family. Mary Ann Glendon, Professor of Law at Harvard, who represents the Vatican at some UN conferences, describes the traditional family in this way: “The community aspect of marriage was emphasized over the individual personalities of each spouse. Within the marriage, the standard pattern of authority and role allocation was that the husband was predominant in decision making and was to provide for the material need of the family, while the wife fulfilled her role primarily by care for the household and children (i.e., marriage was a major support institution). Procreation and child rearing were assumed to be major purposes of marriage, and sexual relations within marriage were supposed to be exclusive. Underlying all these assumptions about particular aspects of marriage were general assumptions that marriage was ‘a basic social institution’ and that state regulation of its formation, organization and dissolution was proper.”38

The Vatican continues to emphasize the community aspect. In this world view it would undermine the family as the basic unit of society, to stress the role of the woman as a person and as an individual, with or without children. The two competing discourses around whether to use family or families, therefore, have to do with whether one considers the male led family to be the basic unit of society or whether one considers the person, i.e. the individual, to be the basic unit. This choice has considerable legal consequences for instance for the right to inheritance, to education and to health. Claims of human rights for woman where she is understood as a person with her own integrity obviously, undermines many traditional views. As the British sociologist Anthony Giddens claims, democracy within the family is something new, connected to Modernity. In the traditional family inequality between the sexes was intrinsic. Women and children were seen as possessions of the man, not as persons with their own integrity.39 Even if Gidden’s understanding could be argued 37

G. Urquart, ‘The Vatican and Family Politics’ in Conservative Catholic Influence in Europe (Catholics for a Free Choice, 1997), p. 7. 38 M.A. Glendon, et al., Comparative Legal Traditions: Text, Materials, Cases, second edition (West Publishing Co, St. Paul, Minn., 1994), p. 277 et seq. 39 A. Giddens, Runaway world, How Globalisation is Reshaping our Lives (Profile Books, London, 1999), p. 54.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN against using research on matrilineal societies, his analysis of traditional, patriarchal families seems quite convincing. The second hidden tension in the debate over which notion of the family to use is related to competing understandings of sexuality. The tradition within Roman Catholicism is to interpret sexuality as exclusively linked to procreation. Augustine (d. 430) claims that the purpose of female existence in God’s creative order is to be instrumental for male procreation of offspring. Women’s subordinate role is defined according to the androcentric socio-biology current in Late Antiquity.40 It follows that sexual activity within monogamist marriage is tolerated when aimed at procreation, but is otherwise morally wrong. Augustine’s norm of using sinful orgasm for obtaining good fertility (bene uti malo) survives in the Vatican’s anachronistic ban on contraception. This evaluation of sexuality as a necessary means for God-given fertility is further defined by Thomas Aquinas (d. 1274). His view builds on a combination of Aristotelian thinking and Augustinian theology. Aristotle described the woman as resulting from an arrested foetal development, since the primary purpose of male seed is to produce a fully grown man. Nevertheless, the existence of female humanity is a necessary instrument for procreation of male humanity, and therefore not against the purpose of nature as a whole. The contemporary concept of female autonomy and women’s reproductive choice as part of women’s human rights is consequently incompatible with traditional Roman Catholic anthropology.41 Hence, intercourse between a married man and woman with the intention of having children is described as something good. This means that sexuality, understood as an expression of love, sensuality, tenderness and connectedness, is only tolerated within marriage. Elina Vuola claims that Latin American liberation theologians also hold on to this value system.42 She quotes Enrique Dussel, saying “The child is the exteriority of all erotics, its metaphysical surpassing, its real fulfilment”. She concludes that “[t]his is actually the official Catholic position that sexual pleasure without the possibility of procreation is morally wrong. According to Dussel normal and human sexuality is openness to a child”.43 Indications that sexuality can be something good in itself without the purpose of procreation is challenging the values described above. Any attempt to give cultural, religious and legal legitimization for sexuality outside of marriage, including between homosexuals is therefore seen as something that is undermining the traditional family.44 For the Vatican and some of its allies this means undermining the family as 40 K. Börressen, Subordination and Equivalence, A Reprint of a Pioneering Classic (Kok Pharos Publishing House, Kampen, 1995). 41 Ibid., pp. 16–21, 157–163, 193–196 315–341. The current article has no ambition to enter into the complex research on the understanding of women in Late Antiquity, only to highlight some of the thoughts that have been very influential in Roman Catholic Theology. 42 Vuola, supra note 32. 43 Ibid., p. 186. 44 However it is important to be aware that very few who advocate a more pluralistic understanding of what a family means are trying to undermine anybody else’s choice to live

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ELISABETH GERLE the basic unit of society. This is one of the reasons why they are organizing the defence of the traditional family by resisting all attempts to legitimize any other forms of the family. 6. Various Alliances in the Protection of the Traditional Family The Vatican’s involvement and strategies at the United Nations of resisting all attempts to bring more pluralistic interpretations of what a family means, of gender roles, and of sexuality and procreation are well-known and documented. Before and during the International Conference on Population and Development in Cairo in September 1994 the Vatican achieved a particularly high profile.45 Mention has been made of unholy alliances between the Vatican and some of the most conservative Muslim countries. The weekly American magazine The Nation reported from Beijing + 5: “Once again the Vatican teamed up with a handful of states - Algeria, Iran, Pakistan, Sudan, Libya - to weaken the language of the Beijing documents. This time around, the US religious right, which has historically opposed the UN’s very existence, joined in the fray.”46 Hence, there are several religious forces, Christian as well as Muslim, who are trying to resist the idea of women’s rights as they are expressed in the UN documents. The Vatican is, however, often pointed out as the leader of this resistance. Gordon Urqhuart describes the Pontifical Council for the Family as the nerve centre of these strategies: “If the cultural struggle over family and gender were a military campaign, the Pontifical Council for the Family would have to be considered the operations room in Pope John Paul’s offensive against liberalism and modernity. Organizing numerous events, some of them enormous, and working closely with other Vatican bodies and lay organizations, this council is the most active of all the Vatican’s administrative organizations, according to a council official and Vatican observers. Among other tasks, the council coordinates an array of activities intended directly to influence legislation and policy touching on all aspects of the family, gender, sexuality and reproduction. The council has coined the term ‘family politics’ to describe its activity.”47

One official from the Pontifical Council for the Family confirms what has been pointed out above that in the council’s view “the basic unit of society is not the person but the family”, a view that according to Urquart is a fundamental challenge to modern understandings of individual liberty and self-determination.48 The official in a nuclear or expanded family. The intention is simply to make visible and give moral and legal legitimization also to other forms of the family. 45 Urquart, supra note 37, p. 4. 46 ‘Women: Two Steps Forward, One Step Back? UN General Assembly Meets to Evaluate Implementation Internationally of Rights of Women’, 2000. 47 Urquart, supra note 37, p. 7. 48 Ibid.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN also indicated that one of the council’s aims is “to halt legislation allowing homosexuals to form legal unions or adopt children”. One strategy is to condemn all “vague definitions of the family as any group of people”. According to this official the enemy to resist was “highly organized secular humanists in the UN and European governments”.49 This strategy was visible in the preparation process of Beijing +5. In a draft document from 23 May 2000, the Holy See suggested replacing the word household with family.50 The final document reflects a compromise where both notions are mentioned.51 Homosexuality is forbidden and considered to be non-existent within traditional Islam and in general among many third world countries.52 Muslim governments are in this regard obvious allies with the strategy of the Holy See. Sexuality, which is considered to be something good in Islam, is only allowed within marriage. The stereotype interpretation of gender is also similar. The idealized vision of a family within Islam sees the man as breadwinner and the woman as wife, mother and caretaker of the family. Her place is in the home, in the private, while the man participates in the official and public sphere. If the nuclear family is the basic unit and the ideal for society the assessment of what Kofi Annan listed as problems in his opening statement becomes quite different. Annan noted that women still earn less, have higher unemployment rates, are more often unemployed, are generally poorer than men, and that most countries have yet to pass laws in favour of women’s rights to own land and other property. In the idealized version of a family that is pursued by the Roman Catholic leadership as well as by many leaders within Islam this is not a problem as the man is the breadwinner. That many women don’t live in these traditional families and therefore are without such protection is not seen as an issue. The impact of changing economic circumstances in Modern and Late Modern societies is rarely taken into account.53 However women and children are the ones that mostly suffer the ordeals emerging out of the gap between proclaimed ideals and concrete reality. Mary Ann Glendon points out that as long as children were perceived as economic assets, custody of minor children used to be given to fathers. By the early twentieth century custody had begun to be regularly awarded to mothers in the United States and 49

Ibid. (E/CN.6/2000/PCL.1Rev.3, E.13). 51 (A/RES/S-23/3, IV, 60) p. 19. 52 Elina Vuola shows how Latin American liberation theologian Enrique Dussel “presupposes heterosexuality as the normal and normative sexuality. Dussel has a negative understanding of homosexuality as a ‘totality’ in which men are neither men nor women. His rejection of homosexuality is combined with a rejection of feminism, defined as something that undoes the natural difference between male and female, leading to a homosexual autoeroticism in which nobody depends on anyone. This could mean lesbianism, elimination of maternity, as well as individualism and hedonism. This is the counterpart of machismo.” Vuola, supra note 32, p. 185. 53 See e.g. U. Beck, World Risk Society (Polity Press, Cambridge, 1999); or Smith supra note 36. 50

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ELISABETH GERLE Europe, and child support was to be granted for their basic needs.54 As behaviour has changed and divorce has become an accepted mode of terminating a marriage by the Western middle class majority, these matters have become controversial. She points out that “[t]he question of who is going to bear the cost of the deadly combination of house-wife marriage and serial polygamy practiced by persons of modest means has not yet been squarely faced”.55 Similar problems with asymmetric gender roles in the Late Modern world are also visible among Muslims when women’s voices are being heard. According to Muslim law, after a divorce a woman is entitled to what she once brought into the marriage. If she has spent her life caring for husband and children, she has not been able to develop any independent income, which puts her in a very vulnerable position if she is being divorced by her husband. In many countries, the man is the only one entitled to initiate a divorce. Further, the inheritance laws in Shari’a that state that a woman ought to inherit half is always explained away by the man’s burden as the provider for the family.56 The situation for those women who never had, or who lose their family protection is rarely talked about. One late draft formulation of 23 May 2000 is slightly different to the final document. The May draft read: “In some countries women’s equal rights to ownership of land and other forms of property and to inheritance is not recognized yet in national legislation”.57 The resolution adopted reads: “In some countries, women’s full and equal rights to own land and other property, including through the rights to inheritance, is not recognized yet in national legislation”.58 As women in some African countries don’t have any inheritance rights to the land they toil and in most Muslim societies women inherit half the amount their brothers do, this is an extremely important formulation. The final formulation does not necessarily imply that full and equal rights pertain to inheritance since it states that women have full and equal rights to own land and property and that this includes rights obtained through inheritance. Rights of inheritance differ in different societies and therefore, even if women have rights of inheritance, they may not necessarily be equal to men’s inheritance rights. This might be a way of adjusting to Shari’a but not to custom in some countries where women, partly due to polygamy, lack the right to any inheritance and the right to own land or property. The ideal version of a family in traditional Islam is similar to that of the Roman Catholics and of the religious right in many countries, i.e. men are seen as breadwinners and women as housewives and mothers. The problem, as Glendon draws attention to, is how to handle the situation when this system does not work. 54

Glendon, supra note 38, p. 280. Ibid., p. 279. 56 Muslim feminists argue that women are allowed to inherit at least half of what the brothers inherit! It is not forbidden to allow daughters more. In relation to women without any inheritance rights at all as in some African countries, it is important to acknowledge that this Muslim legislation was a step forward at the time of the prophet. 57 (E/CN.6/2000/PC/L.1/Rev.3, F.15). 58 (A/RES/S-23/3, II, F, 21) p. 9. 55

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN The best intentions may have difficult consequences and the Global Campaign for Women’s Human Rights wants to create awareness of all the women who actually have to carry the burden when the ideal fails. It would, however, be highly unfair to describe the Roman Catholic Church and its role in international politics as entirely conservative. As Urquart points out in his report: “This is the church that has called for the forgiveness of third world debt by first world nations, that played a powerful role in the collapse of repressive regimes in Eastern Europe, that defends the rights of immigrants, and that often, though not always, is an eloquent 59 spokesperson for human rights.”

During the last decade, however, the scope of public policy has changed dramatically. Now the focus lies on “what traditionally was considered the private sphere; women’s rights and social role; human reproduction; sexual rights, including those of homosexual persons; marriage; divorce, and family life”.60 In this area the Roman Catholic Church takes the side of the conservative forces in society. In addition, progressive forces such as liberation theologians in Latin America do not want to complicate the issue of justice between the North and the South by giving attention to issues of justice or rights for women.61 Many of them are judging phenomena such as divorce, contraception, sterilization, and free expression of sexuality as products of bourgeois modernity.62 These radical men are mostly silent about what Vuola describes as the reality of illegal abortions, the high rates of domestic violence, and households headed by women, which are some of the most burning problems for Latin American women.63 Thus, there are many different alliances in the protection of traditional family patterns and of women’s subordination. The discourse does not follow stereotype divisions between NorthSouth, conservatives-radicals or Christians-Muslims.64 7. Universalism versus Cultural Relativism? The Holy See often invokes the natural law paradigm in its defense of the traditional family. The different roles proclaimed to be the natural ones within the family are thereby described as a value and the ideal for not only Roman Catholics, but for everybody. Urquart states that “[t]hey are reasserting the notion that their teachings 59

Urquart, supra note 37, p. 1. Ibid. Benedictus XVI, elected pope in April 2005, seems to pursue a similar path. 61 Vuola, supra note 32, p. 184 et seq. 62 Ibid., p. 188. 63 Ibid., p. 183. 64 Post-colonialism understood as much more complex patterns of relationships of power is more fitting than established dichotomies from the sixties and seventies. I am inclined to interpret women’s rights more in the discourse of post-colonialism where resistance to oppression is more complex than, for instance, rejection of western hegemony. 60

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ELISABETH GERLE are not just for Catholics but are the natural law, universal truths that transcend religious and political distinctions”.65 The public policy claims of the Holy See in this area are therefore presented as universal claims.66 However, not only universalism and natural law but also the notion ‘cultural diversity’ may be used as politics for resisting egalitarian gender interpretations by some states, such as Pakistan. This was the reference by many governments to justify why they had not taken any measures to implement the Beijing Platform for Action.67 Interestingly enough it thus seems that the notion ‘cultural diversity’ as a claim for particularity as well as natural law understood as something universal can be used in the resistance against gender equality. In both cases it seems to be a way of avoiding concrete discussions about what is good or bad and for whom. The traditional family is simply assumed to be the best for everybody in society. Whether it is always the best, or gives the protection to women and children as it is claimed to do in the idealized visions, is avoided by using this rhetoric. However, as the philosopher Janet Radcliffe Richards points out, what is seen as natural can mean a good many different things. Secondly, according to none of these possible meanings can the natural be taken as any guidance at all for distinguishing good from bad.68 However this naturalistic fallacy arises quite frequently in debates over gender. Natural law references may be used, as well as references to Islam as the natural religion and the protection of human rights. References to cultural diversity by Muslim states are to be interpreted as claims to uphold what is seen as natural and universally right. Shari’a is not only understood as a collection of norms clearly defined but also as a natural law, a path to life that we cannot obtain full knowledge about. Hence, Muslim appeals to cultural diversity are not arguments in favour of cultural relativism.69 The fact that Muslim states are referring to cultural diversity at the UN is rather to be understood as a strategic choice of rhetoric in a world where not everybody is Muslim. As a global forum the United Nations has to balance competing universal claims. Attempts to live with different societies and value systems within the United Nations are quite obvious in the introduction of the final document adopted by the plenary of the special session: 65

Urquart, supra note 37, p. 17. See F. Kissling, The Vatican and Politics of Reproductive Health (Catholics for a Free Choice, 1982). 67 Elina Vuola describes the liberation theologian Dussel’s use of central concepts in a similar way, as an “unproblematized and uncritical use of such central concepts as the Other, alterity, difference, femininity, and masculinity, and so on, which produces both the incoherence and anti-feminism in his ethics”. Vuola, supra note 32, p. 187. 68 J. Radcliffe Richards, The Sceptical Feminist (Penguin Books, Harmonsworth, 1982). 69 With cultural relativism I simply mean an approach that emphasizes that cultures have different values and that it is impossible to say what is right or wrong. It is claimed that each culture has to make such judgements on its own. Cultural relativism is, consequently often combined with ethical relativism and with essentialising cultures, interpreting them monolithically. 66

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN “The full realization of all human rights and fundamental freedoms of all women is essential for the empowerment of women. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural system to promote and protect all human rights and fundamental freedoms.”70

Potential and real conflicts between interpretations of religion and culture and fundamental freedoms for women are not mentioned or addressed. However in many cases there might be a conflict between freedom of religion and claims for gender equality. The question remains: how will human rights for women be interpreted within a framework of natural law or within traditional Islam where Shari’a is seen as the best protection? As Jonas Svensson points out, religious laws in many countries have been circumscribed and are now restricted mainly to family law.71 When the divine law (in this context, Shari’a) is appealed to as something that is created and given by God, the contradiction to secular legislation initiated by governments is obvious. The human rights regime assumes that states have the power to implement international legislation. However in many states other social and religious networks and institutions are stronger and more important in people’s lives than the states, especially in the area of family law. States may, therefore, simply lack the political ability and will to implement international human rights standards.72 When the resolution adopted by the Twenty-third Special Session describes achievements in relation to the “feminization of poverty” it mentions “microcredits” and that “policy development has taken account of the particular needs of female-headed households”.73 In the paragraph on obstacles not only “debt burdens” and “excessive military spending” is mentioned. The resolution states as well that women’s “unequal access to, and control over capital, and resources, particularly land and credit and access to labor markets, as well as all harmful traditional and customary practices, have constrained women’s economic empowerment and exacerbated the feminization of poverty”.74 An egalitarian view seems to be gaining ground at the UN in relation to ways of life that emphasize complementarity, difference and asymmetry. The latter is put in a defensive position. Many arguments invoking asymmetry and difference can therefore be heard as ways to rationalize values that are losing ground in the UN 70

(A/RES/S-23/3, I,3, p.2) p. 1. The latter sentence is an incorporation of the language in paragraph 5 of the 1993 Vienna Declaration and Program for Action. 71 J. Svensson, Women’s Human Right and Islam: A Study of Three Attempts at Accomodation (Lund Studies in History of Religions, Vol. 12, Lund University, 2000). For instance, this is not only the case in many Muslim countries, but also in Israel. 72 See J. Hjärpe, ‘Some Problems in the Meeting between European and Islamic Legal Traditions: Examples from the Human rights Discussion’ in Cultural Crossroads in Europe, (FRN, Swedish Council for Planning and Coordination of Research, Stockholm, 1996). 73 (A/RES/S-23/3, II. A, 7) p. 3. 74 (A/RES/S-23/3, II. A, 8) p 3.

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ELISABETH GERLE discourse. As Mahnaz Afkhami points out, this meshes with the idea of cultural relativity in the West.75 While the internal Islamist position invokes Islam and “the inviolability of the text”, the external argumentation uses a rhetoric borrowed from a post-modern critique against universalism in the West: “In the West particularly in academic circles, relativity is often advanced and defended to promote diversity. In its theoretical forms, for example as a post-structuralist critique of positivist (liberal modernization) and Marxist development theories, cultural relativism sometimes suggests that universalist discourses are guilty of reinforcing Western hegemony by demeaning non-Western experience. Whatever merits or faults of the critique, it insists on free choice and equal access. Islamists, however, use the argument functionally to justify structural impairment of women’s freedom and formal enforcement of women’s inequality.”76

Philosophical concepts such as universalism and particuralism, therefore, need to be understood and interpreted in their political contexts. The resolution has no explicit references to religious notions even if, for instance, representatives of Muslim governments mentioned the prophet and Islam as the guarantor of human rights now and then in public statements during the Twenty-third Special Session of the General Assembly. According to the Swedish delegation to the Beijing +5 conference, the notion of ‘cultural diversity’ was quite frequently used. References to the particular, implicit in the secular notion of cultural diversity, are probably used as something more acceptable than references to the prophet and to the Q’uran.. Nevertheless, it obviously fulfils the same function as do references to universality and natural law for the Holy See when it comes to gender relations. The religious influences at the United Nations are mainly expressed in secular language. Philosophically, claims to universality as well as to the particular in this context may be used to reinforce gender roles that affirm male prominence. 8. Competing Universal Claims The Roman Catholic and the Muslim discourse are rhetorically different. Yet they express similar visions for the good life with implicit complementary, rather than egalitarian, gender roles.77 In the United Nations, however, they meet another discourse with universal claims that argues for the person, or the individual as the basic unit of society. Here gender equality without discrimination is one of the basic value. For the Holy See as well as for many Muslims this discourse is seen as 75

M. Afkhami (ed.), Faith & Freedom, Women’s Human rights in the Muslim World (Syracuse University Press, New York, 1995). 76 Ibid., p. 3. 77 At the UN Conference on Women and Development in Beijing 1995 the battle was over whether to talk about equity or equality, equity affirming difference and complementarity and often accepting male prominence while equality underlines that men and women ought to be equal in value and with similar possibilities to choose from.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN entirely secular. This is in itself an argument with the attempt to add divine power. Religion is being used to defend traditionalism. The different views are presented as a conflict between religion and secularism. The rhetoric implies that it is a battle between a religious and a secular interpretation of what the good life means. However, it seems rather to be different interpretations of religion that are competing. Religious people are to be found on both sides. There are Roman Catholic women fervently arguing in favour of the family as the basic unit, while, for instance, Catholics for a Free Choice organizes Roman Catholics with more individual points of view. As we have seen, critique of the Vatican’s official position is not limited to women in the North. Similarly there are Muslim women at the United Nations claiming that Islam gave women their human rights 1400 years ago and that no other protection is needed. However other Muslim women draw attention to double standards and oppression exercised in the name of Islam.78 These two groups of Muslim women also have common features, namely envisaging Islam as something good. When double standards are pointed out it is done in a way that argues that this is not true Islam, but a result of patriarchal interpretations and social conditions. Mahnaz Afkami, who is executive director of the Sisterhood is Global Institute and executive director of the Foundation for Iranian Studies and active in the Global Campaign for Women’s Human Rights, also makes an attempt to distinguish religion from patriarchal practice in her critique against the Islamists: “Rather than addressing real evolving societies, Islamists abstract Islam as an esoteric system of unchanging rules and then equate it with complex, changing and historically specific social and political conditions. As a result, they transform the practical issue of women’s’ historical subjugation in patriarchies, which is a matter of the economic, social and cultural forms power takes as societies evolve, to arcane questions of moral negligence and religious slackness. The argument becomes pernicious when it seeks to portray women who struggle for rights as women who are against Islam, which is their religion and in which they believe. The Islamists confound the issue by positing men’s interpretation of religion for religion itself.”79

She is quite aware that the secular argument is being used to dismantle internal critique, portraying women who struggle for rights as being against Islam. Women are therefore often pointing out that they are religious and trying to distinguish their critique against patriarchy and their loyalty to their religion or their tradition. This might be the way they experience themselves or the only political strategy possible 78

Riffat Hassan is a Muslim scholar who often argues that Islam gives human rights to everybody but that the practice of Islam is often violating women’s rights. See e.g. R. Hassan, ‘Are human rights compatible with Islam? The issue of the Rights of Women in Muslim Communities’, in Human rights in China and Islam, (The Religious Consultation on Population, Reproduction, Health and Ethics, Washington, D.C., 1995). 79 Afkhami, supra note 75, p. 3.

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ELISABETH GERLE in some countries. However it would be too simplistic to describe the competing interpretations of gender relations as a competition between religious and secular viewpoints. The Global Campaign for Women’s Human Rights is not monolithic in its relationship with religion and tradition. While some women clearly use secular arguments, other women try to reinterpret traditions and their own religion. It is also too simplistic to describe the conflict in North-South terms where developing countries are trying to resist Western hegemony. Claims for women’s human rights reveal that the particular and the universal as well as the liberal split between private and public may be used as strategies of resistance against such claims. The Campaign is challenging all these polarizations. Arguing in favour of the individual with a gender perspective transforms the liberal paradigm. Gender sensitivity cuts through and highlights violations against the person that also take place also in the private sphere. This is happening in the North as well as in the South. “It is widely accepted that violence against women and girls, whether occurring in public or private life is a human rights issue. It is accepted that violence against women where perpetrated or condoned by the state or its agents constitutes a human rights violation. It is also accepted that states have an obligation to exercise due diligence to prevent investigate and punish acts of violence whether those acts are perpetrated by the state or private persons and provide protection to victims. There is increased awareness and commitment to prevent and combat violence against women and girls, including domestic violence, through inter-alia, improved legislation, policies and programmes.”80

Such acknowledgment of state responsibility for violence taking place in the private sphere is something recent in the human rights discourse. The UN Declaration in Elimination of Violence against Women (1993) is a concrete example of the evolving discourse. However the resolution from Bejing + 5 acknowledges in a subtle way what the Secretary General said in his opening- that there is still a long way to go. The final document plainly says that “[s]ome Governments have also introduced or reformed laws to protect women and girls from all forms of violence and laws to prosecute the perpetrators”.81 What is implicitly acknowledged here is that many states still do not take measures to prosecute the perpetrators of, for instance, domestic violence. An article in The Nation complains that “Nigeria permits husbands to ‘correct’ their wives through physical punishment; Costa Rica and at least five other countries allow rapists to avoid prosecution if they marry their victim”.82 While national legislation in other countries seems to be clear in condemning domestic violence, the problem is often hidden behind notions such as family turbulence or the right to privacy. However a UN conference on women 80

(A/RES/S-23/3, II. D.13) p. 6. Ibid. 82 ‘Women: Two steps forward, one step back? UN General Assembly meets to Evaluate Implementation Internationally of Rights of Women’, The Nation, 26 June 2000. 81

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN gives the media an incentive to make known some of the problems surrounding women’s rights, which then continue to be discussed. In this regard the UN initiates processes that continue in various parts of the world and bring more people into the discussion. 9. Changing Political Framework for International Law International law and the legal discourses of human rights originally developed as relationships between states and between state and citizens. The context was a world with sovereign states negotiating with other states. The United Nations Charter (1945) was the first international agreement where states made a commitment to promote human rights at the international level. References to human rights were made both in the preamble and in several different articles in the Charter.83 However the language is vague. The UDHR can be seen as an attempt to define the rights to be protected.84 Individuals and other actors are gaining more space and visibility in a globalizing world.85 Transnational social movements pursuing ecological sustainability, justice and peace, international humanitarian organizations and women’s movements are examples of such new actors. People within these movements think of themselves as engaged citizens claiming to be actors and subjects of international law. While international law has had the state as its main subject, the transformation of sovereignty and the openings that this has created is making it possible for women to become visible participants in international relations and subjects of international law.86 Feminist critics of international law have pointed out that attempts to personify the state as a subject has had the effect of denying both the individual, and the collective identity of women within a state and across states.87 Hence, Saskia Sassen argues that there are new possibilities emerging as a consequence of globalization: “Once the sovereign state is no longer viewed as the exclusive representative of its population in the international arena, women and other non state actors can gain more representation in international law; contribute to the making of international law; and give new meaning to older forms of international participation, such as women’s long standing work in international peace efforts.”88

83

Articles 1(3), 13, 55–56, 62(2) and 68. A.D. Renteln, International Human rights, Universalism Versus Relativism (Sage, London, 1990), p. 21. 85 To be a subject of international law means to have the right to negotiate and enter into contract with others on binding legislation, i.e. conventions. 86 S. Sassen, Globalization and its Discontents (The New Press, New York, 1998). 87 Ibid., p. 93. 88 Ibid., p. 94. 84

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ELISABETH GERLE States are the main legal subjects in international law. Yet already within the United Nations system the individual citizen has some rights as a subject and an actor. Through the Optional Protocol to the International Covenant on Civil and Political Rights (1966) individuals have the right to complain to the Human Rights Committee. “A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by the State Party of any of the rights set forth in the Covenant.”89

In this paper I have tried to show that non-state actors from different parts of the world are increasingly active when norms are being developed on a global level. As they are becoming more visible they are able to influence moral and legal discourse. Yet their priorities and interpretations of human rights vary. 10. UN Conferences and Special Sessions Make Competing Global Discourses Visible As I have shown, the United Nations is increasingly a global forum where many voices are participating. Most of them are pursuing what they consider to be the best for everyone. While the Roman Catholic Church refers to natural law and universal values, many Muslim governments express the value of ‘cultural diversity’ and particularity to pursue their values and positions. However their gender analyses are quite similar, stressing difference and complementarity. Implicitly, male prominence is presupposed and expected to remain. The Global Campaign for Women’s Human Rights, composed of women from all regions of the world, uses the principle of nondiscrimination to pursue gender equality. This, on the other hand, is an argumentation built on egalitarian values and principles. In relation to women, these two discourses in particular are competing with each other at the United Nations. I have therefore chosen to see the UN Special Conferences as limited experiments in global democracy. In these processes old dichotomies between North-South, privatepublic, national-international and universal-particular are being challenged. 11. Human Rights in Relation to Position The varied interpretations of human rights that I have experienced in local settings in different regions of the world also seem to be highly present in global arenas such as the United Nations. This case study has shown that women’s rights are 89

(ICCPR-OP1), Article 1. This right of the individual is taken one step further in the European Convention (1950) which says: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. This means to guarantee these rights for anybody within the state and not only citizens.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN understood differently by many actors. While this case study has focused on women, one can expand the scope somewhat and say that there seems to be a tension between a modern emphasis on the person and on a more traditional emphasis on the family. However many of the conflicts that I have made explicit above are often described as cultural or regional. A deeper analysis indicates that such categorizations are too rigid. One permeating theme seems to be whether to take the person or the group as the point of departure. Most traditional cultures have a sense of human rights, often expressed in terms of human dignity. Such dignity, however, is mostly understood as something related to place and time of birth in a family. A first born son has a dignity and value that cannot be compared with a first born daughter or a second born son. A father in a family has another value and position than that of a mother. Position gives certain privileges but also brings duties to fulfil. Such expectations on the individual are often presented as divine or biological in a cosmic order. Cosmic order where positions are supposed to be given, at least in this life, is not to be challenged. An egalitarian agenda claiming equal rights, independent of position, is alien to most Pre-Modern traditions. While the UDHR preamble recognises “the inherent dignity” and “the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world”, many actors at the United Nations want to see the family as the basic unit of society. Article 2 provides that “everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Such acknowledgement of the person’s entitlements is challenging various given positions and elites. Hence, values connected to individual autonomy and social mobility that are highly valued in Modernity and Late Modernity are met with suspicion. They seem to threaten cultural and religious hierarchies, and indirectly the cosmic order. Whether the threat to a cosmic world view or the challenge of patriarchal dominance in society is most frightening is hard to estimate. However, what rhetorically is a defence of cultural values, difference and particularity often in practise turns out to be resistance to women’s egalitarian claims. Conflicting values emerge within all cultures and traditions, not only between different cultures. Pre-Modern understandings stand against a modern emphasis on the person. A Late Modern approach to emphasise group rights may give new space to many Pre-Modern sentiments. When some of the hierarchies connected to traditional patriarchy and ethnic/religious leaderships are reaffirmed or reintroduced, tensions arise in relation to an egalitarian understanding of Human rights. 12. Local Stories Meet Globally The United Nations is working with consensus, where states are supposed to agree on suggested formulations. It is therefore easy for a small group of states to block undesirable steps. Notions such as asymmetry, cultural or religious diversity, or 367

ELISABETH GERLE equity, meaning complementarity built on difference may easily be used to resist equality understood as non-discrimination.90 Many women in the NGO community were complaining and wondering if a few states ought to be allowed to block progress for women’s rights and implementation of CEDAW. Nevertheless, from a human rights discourse perspective it is interesting to analyze what now may be said and spoken about at the UN and by whom. When the Secretary-General Kofi Annan speaks about ‘shame killings’; when Mary Robinson, the (then) United Nations High Commissioner for Human Rights opens the symposium on Visions on Future Directions for Human Rights; and when the (then) US first Lady Hillary Clinton asks at a UNIFEM panel what globalization means if women can be sold as commodities, then the discourse is changing.91 Issues that previously have been impossible even to mention, such as domestic violence, mass rape and trafficking of women are now being discussed at the United Nations by high representatives. Many of these issues are further related to economic justice. Grass root movements have often been active for years before these issues reach the United Nations. One example was reported by the news network IPS after Beijing + 5. Argentina had traditionally voted alongside the Vatican. The IPS reported that the alliance government which took office in December 1999 has “taken a less militant stance against women’s reproductive health rights. Through the new law, women, and especially low-income teenagers, will enjoy access to information, exams related to reproductive health, and birth control in public hospitals in Buenos Aires. Demanded by women’s and health’s advocacy groups for years, the new law was applauded by local non-governmental organizations as well as gynecologists and obstetricians who have long defended the need to prevent abortions and teen pregnancy.”92

When basic values are being discussed in the United Nations as a global forum, participants from many different spheres of life are increasingly able to make their voices heard. For women this is a fairly new phenomenon facilitated by globalization. While national, often male elites previously have had a monopoly in framing the issues, women from various backgrounds are now being heard in new ways. In the United Nations they are able to give their interpretation of religion and tradition. Participation of women is changing the discourse, as women are representing themselves in broad coalitions with great variety and heterogeneity. Furthermore, the exchange of experiences and strategies may be crucial for the future when these global norms are to be implemented. Whether they are being codified in resolutions that are morally binding or in conventions that are legally 90

In this context women arguing in favour of equality are not necessarily arguing against difference or variety. They mostly want to talk about variety in a way that expresses not only differences between men and women but also difference among women. The focus is on nondiscrimination. 91 At the time of the special session in 2000 they held these positions. 92 IPS, press statement, 23 June 2000.

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN binding, the challenge has to do with implementation. Here, the states and national legislation still have decisive power, as in some states international human rights treaties need to be incorporated into domestic law through national legislation and through juridical application. As the legal scholar Rebecca J. Cook holds, methods of national protection will in the long run be more effective as “international methods are too limited in number and scope to deal with the particular complexities of violations in different community contexts”.93 The international human rights regime is simultaneously gradually developing. A framework of what David Held calls “cosmopolitan law” is emerging. This framework “circumscribes and delimits the political power of individual states”. He claims that: “In principle, states are no longer able to treat their citizens as they think fit; for the values imbedded in these laws qualify in fundamental ways the nature and form of political power, and they set down basic standards and boundaries which no agent (political or economic) should be able to cross.”94

Legally, politically and ethically, we are not there yet. Many states continue a politics of repression, denial and possibly tactical concession. Nevertheless, norms in the direction of cosmopolitan law are being developed. Such human rights norms are increasingly visible in the world and take on a prescriptive status. In this process it is crucial to analyze who are developing the norms and who are interpreting human rights. Whom do they represent? Since so many women globally belong to those states that are poor it is important to find space for a variety of women’s voices to be heard in global settings. 13. Summary In summation, one of the basic tensions in contemporary human rights debates is whether to follow an egalitarian principle of non-discrimination that is permeating the Universal Declaration of Human Rights. A quite visible alternative at the United Nations and in the world is to relate human rights to positions related to age, sex, colour, birth, and national or social origin. A discourse of group rights, asymmetry, diversity and cultural particularity may easily undermine a sense that every human being, independent of position, is entitled to live a life in dignity. An emphasis on the individual as the basic unit of society may have created a reaction and thus a need to stress that every human being lives in and is emerging as a person in relation to their societal environment. Family, ethnic, cultural, religious and other group belongings are therefore crucial for every human being. However, if the dignity and the human rights of the person is decided by place and position 93

R.J. Cook, ‘International Human rights and Women’s Reproductive Rights’, in Julie Peters and Andrea Wolper (eds.), Women’s rights, Human rights, International Feminist Perspectives (New York, Routhledge, 1995), p. 259. 94 D. Held, ‘Regulating Globalization? The Reincarnation of Politics’, 15:2 International Sociology (2000), p. 403.

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ELISABETH GERLE within a community it undermines the intentions behind the human rights discourse. Increasingly people live with multiple belongings, personal and professional. This creates overlapping identities. An appreciation of various diversities can therefore be developed without undermining an egalitarian principle of non-discrimination. 14. References Literature M. Afkhami (ed.), Faith & Freedom, Women’s Human Rights in the Muslim World (Syracuse University Press, New York, 1995). T. Aquinas, Selected Writings, edited and translated by Ralph McInerny (Penguin, London, 1998). A. Augustine, The Work of Saint Augustine; a translation for the 21st century. Books, Vol.13, On Genesis: A refutation of the Manichees, unfinished literal manuscript on Genesis, the literal meaning of Genesis (New City Press, New York, 2002), p. 1. Augustine, De Genesis ad Litteram, IX, 5. Aristotle, Nichomachean Ethics, translated by W.D. Ross and N.C. Raleigh (Alex Catalogue, Colo: NetLibrary, 2000). U. Beck, World Risk Society (Polity Press, Cambridge, 1999). S. Benhabib, Situating the Self; Gender, Community and Postmodernism in Contemporary Ethics, (Polity Press, Cambridge, 1995). S. Benhabib, ‘Citizenship, Residents, and Aliens in a Changing World: Political Membership in the Global Era’, 66:3 Social Research 1999. K. Börressen, ‘Kjönsmodeller i senantikk og middelalder’, in Kaul et al. (eds.), Feministteologi på norsk, (Cappelan Akademisk förlag, 1999). K. Börressen, Subordination and Equivalence, A Reprint of a Pioneering Classic (Kok Pharos Publishing House, Kampen, 1995). --- , Subordination and Equivalence: The Nature and Role of Woman in Augustine and Thomas Aqiunas (Matthias-Grünewald-Verl, Mainz, 1995). C. Bunch, and N. Reilly, Demanding Accountability, The Global Campaign and Vienna Tribunal for Women’s Human rights, (Center for Women’s Global

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN Leadership and United Nations Development Fund for Women (UNIFEM), New York, 1994). D. Buss, ‘Robes, Relics and Rights: The Vatican and the Beijing Conference’, 7:3 Social and Legal Studies (1998). Catholic Voices on Beijing: A Call for Social Justice for Women, Human rights of Women and the Girl-Child (Catholics for a Free Choice, 2000). R.J. Cook, ‘International Human rights and Women’s Reproductive Rights’, in Julie Peters and Andrea Wolper (eds.), Women’s rights, Human rights, International Feminist Perspectives (New York, Routhledge, 1995). A.C. Doyle, A Study in Scarlet (Berkley Publishing Corporation, New York, 1975). M.A. Glendon, et al., Comparative Legal Traditions: Text, Materials, Cases, second edition (West Publishing Co, St. Paul, Minn., 1994). A. Giddens, Runaway World: How Globalisation is Reshaping our Lives (Profile Books, London, 1999). P. Gärdenfors, Conceptual Spaces: The Geometry of Thought (MIT Press, Cambridge, MA, 2000). ---, ‘Intuition as Implicit Knowledge’, in S. Sandström, Kungl., Intuitive Formation of Meaning (Vitterhets Historie och Antikvitets Akademien, Stockholm, 2000). R. Hassan, ‘Are human rights compatible with Islam? The issue of the Rights of Women in Muslim Communities’ in Human Rights in China and Islam (The Religious Consultation on Population, Reproduction, Health and Ethics, Washington, D.C., 1995). D. Held, ‘Regulating Globalization? The Reincarnation of Politics’, 15:2 International Sociology (2000). J. Hjärpe, ‘Some Problems in the Meeting between European and Islamic Legal Traditions: Examples from the Human Rights Discussion’ in Cultural Crossroads in Europe, (FRN, Swedish Council for Planning and Coordination of Research, Stockholm, 1997). 97:3, pp. 52-68. B.B. Ingoldsby, and S. Smith (eds.), Families in Multicultural Perspectives (The Gulford Press, New York, 1995). IPS, press statement, 23 June 2000. 371

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A.E. Mayer, ‘Rhetorical Strategies and Official Policies on Women’s Rights: The Merits and Drawbacks of the New World Hypocrisy’, in Mahnaz Afkhami (ed.), Faith and Freedom, Women’s Human Rights in the Muslim World,(Syracuse University Press, New York, 1995). F. Kissling, The Vatican and Politics of Reproductive Health (Catholics for a Free Choice, 1982). J. Radcliffe Richards, The Sceptical Feminist (Penguin Books, Harmonsworth, 1982). A. Rahman, ‘Church or State? The Holy See at the United Nations’, Summer:2 Conscience (1982). A.D. Renteln, International Human Rights: Universalism Versus Relativism (Sage, London, 1990). T. Rissen, and K. Sikkik, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’, in Riss, T. et al. (eds.), The Power of human rights: International norms and domestic change, ( Cambridge University Press, Cambridge, 1999), pp. 1–38. S. Sassen, Globalization and its Discontents (The New Press, New York, 1998). S. Sandström, Intuition och Åskådlighet (Carlssons, Helsingborg, 1995). S. Smith, ‘Women and Households in the Third World’, in B.B. Ingoldsby and S. Smith (eds.),1995, Families in Multicultural Perspectives (The Guilford Publications, New York 1995). A. Sjöberg, Här går gränsen. Om integritet och kulturella mönster i Sverige och medelhavsområdet (Arena, Stockholm, 1993). J. Svensson, Women’s Human Rights and Islam: A Study of Three Attempts at Accomodation (Lund Studies in History of Religions, Vol. 12, Lund University, 2000). J-P. Thérien, ‘Beyond the North-South divide: the two tales of world poverty’ 20:4 (1999) Third World Quarterly pp. 723–742. K. Tomasevski, Women and Human Rights, (Zed, London, 1993).

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VARIOUS INTERPRETATIONS OF HUMAN RIGHTS FOR WOMEN G. Urquart, ‘The Vatican and Family Politics’ in Conservative Catholic Influence in Europe (Catholics for a Free Choice, 1997). E. Vuola, Limits of Liberation, Praxis as Method in Latin American Liberation Theology and Feminist Theology (Suomalainen Tiedekatemia, Helsinki, 1997). B.H. Weston, ‘The Universality of Human Rights in a Multicultural World: Towards Respectful Decision-Making’ in Burns H. Weston and Stephen Marks (eds.), The Future of International Human Rights (Blackwell, New York, 1999). I.M. Young, Justice and the Politics of Difference (Princeton University Press, Princeton, 1990). I.M. Young, ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’, in Goodin, Robert E. and Philip Pettit (eds.), Contemporary Political Philosophy (Blackwell, Oxford, 1997). ‘Women: Two steps forward, one step back? UN General Assembly meets to Evaluate Implementation Internationally of Rights of Women’, The Nation, 26 June 2000. Declarations, Conventions and UN documents Agenda for Development, 1997, United Nations. Resolution adopted by the General Assembly Further actions and initiatives to implement the Beijing Declaration and Platform for Action (A/RES/S-23/3) (16 November 2000) [on the report of the Ad Hoc Committee of the Twenty-third Special Session of the General Assembly (A(S-2310/Rev.1)]. Convention on the Elimination of All forms of Discrimination against Women 1979 (U.N. Doc. A/34/830ß ). Declaration on the Elimination of Violence against Women 1993. European Convention for the Protection of Human Rights and Fundamental Freedom 1950 (E. T.S. No 5), (213 U.N.T.S 221). United Nations Development Program Human Development Report 1999 Oxford University Press. International Covenant on Civil and Political Rights 1966 (U.N Doc. A/6316). Universal Declaration of Human Rights 1948 (U.N. Doc. A/810). 373

IMPLEMENTATION OF INTERNATIONAL CONVENTIONS AS A SOCIO-LEGAL ENTERPRISE: EXAMPLES FROM THE CONVENTION ON THE RIGHTS OF THE CHILD Håkan Hydén* 1. Problems of Implementation The study of human rights, which is at the forefront of the Raoul Wallenberg Institute, is associated with the name of Göran Melander, whose work is the subject matter of this volume (festschrift). My contribution, in honour of Göran Melander, will focus on the implementation of international conventions on human rights. I have chosen the Convention on the Rights of the Child as an illustrative example. This Convention covers very many aspects, but I will concentrate on the part dealing with the “right to education”. Human rights conventions have a long way to go before reaching their final destination, namely, the human being. In view of this, I shall, in the course of this contribution, discuss what I call the three step flow of implementation. As put forward by Jan Michiel Otto “discussing implementation of the law requires that we consider law-in-action rather than law-in-books”.1 Otto continues, “(w)e are not using the term implementation here in the sense of making lower executive regulations…Studying implementation of the law forces us to cross the bridge from the conventional study of law to the study of sociolegal reality”.2 The first step is the text of the convention; the legal design of which automatically becomes the starting point for the process. It is also the determinant of what follows at the other levels of the implementation chain. The core issue is how to secure the expected legal text when the convention is being transformed into the legal and social cultures of different countries. The second step, at the national or state level, is the level where law is most developed. It means that the convention must gain support from the national legal machinery. Since legal cultures are not the same all over the world, problems of integrating the convention into the national legal system must be expected. The third step of implementation, which covers the period before the convention reaches society and the actual human beings to be affected by it, is the informal, sub-state world of norms. Legal regulations are never issued in a social vacuum. On the contrary, there are and there always will be existing norms operating already in *

Professor, Dr., in Sociology of Law since 1988, LLM and docent in Civil Law at Lund University. 1 J.M. Otto, ‘Toward an Analytical Framework: Real Legal Certainty and its Explanatory Factors’, in Jianfu Chen et al., Implementation of Law in the People´s Republic of China (Kluwer Law International, The Hague, 2002) p. 23. 2 Ibid. 375

HÅKAN HYDÉN society, which the legal norms will compete with or complement in one way or another. Since legal regulations, in general, and human rights, in particular, are aimed at influencing individuals and society in certain ways, the relationship between norms and legal rules in society thus becomes the final key issue in understanding the faith of a ratified convention. We can summarise the implementation chain in the following figure: SUPRA STATE LEVEL

CONVENTION

INTERNATIONAL

LAW

NATIONAL

SUB-STATE LEVEL

NORMS

INTERMEDIARY

SOCIETAL LEVEL

INDIVIDUALS

LOCAL LEVEL

STATE LEVEL

The ideal is that the legal text of the convention will be translated properly into legal regulation at the national level and that these rules will influence behaviour in society according to the content of the convention. This last step is dependent on the relationship between norms and rules in the regulated area. I will follow this chain of implementation by using the Convention on the Rights of the Child (CRC) as an example. The basic understanding is that there are problems of deviation at each level and that different forms of intervening factors occur at separate levels. In order to understand these transitions, we must go through the three steps of implementation, which we begin by exploring an overview of the possible deviations with the aid of the figure below: 1.

2.

3.

A

A

A

SUPRA STATE LEVEL

CONVENTION

STATE LEVEL

LAW

B

SUB-STATE LEVEL

NORMS

C

SOCIETAL LEVEL

INDIVIDUALS

A

B

A C

A

D

Let us assume that the A in the figure represents a certain provision with a specific content that is expected to be transformed into domestic law, which will, then, affect 376

IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE existing norms in society in order to be finally implemented in that society. The first possible deviation lies in the relation between the convention and domestic law. The risk is that the content A could either be misunderstood or implemented in terms of something else, as for instance, the B in the figure. In this case, the end result of the implementation process could only be expected to be B. The second problem of implementation is connected to the relation between law and norms in society. The legal design of the law must meet the requirements of necessary measurements in order to influence the norms in society in accordance with the content of the convention. Content A in law thereby risks being converted into the norm, C. The final and third step of the implementation chain is related to the norms, per se, in society. Existing norms function as a filter for legal rules which otherwise might make them swerve from their stated content. Thus, the specific content of the convention, A in the figure, will normatively become D in practice. I will continue by commenting on these potential deviations. 2. The Relation Between the CRC and Domestic Law 2.1. Transformation or incorporation? The question to be answered here is how to make an international convention become valid as domestic law. According to Swedish legal tradition an international convention is not directly applicable as domestic law. This means that if Sweden has to ratify an international convention which does not correspond to the Swedish legal system, the existing Swedish law must be changed or complemented. Within public international law there are two strategies used for implementing an international convention into domestic law. Where, for instance, countries follow the so-called monistic tradition, public international law is regarded as part of the national legal system. Thus, for instance, when a country like Germany ratifies an international convention, the convention automatically becomes valid as domestic law. On the other hand, where countries follow a dualistic legal tradition, a ratified Convention becomes binding only for the State Party but does not become part of the domestic legal system. Sweden belongs to this type of legal tradition. This means that in order to create a binding legislation, the Convention has to be transferred into domestic law. For countries that follow the dualistic legal tradition, therefore, there are two means available for transferring an international Convention into their national legal systems, namely, transformation or incorporation. Transformation implies the transferring of the content of the convention into domestic law by either amending existing laws or by enacting new laws in accordance with the convention. Incorporation, on the other hand, means that the Convention has to be issued directly as a domestic law. This was precisely what Sweden did with the European Convention for the Protection of Human Rights and Fundamental Freedoms and, incidentally, this is what many countries have done with the CRC. The consequence of this is that the authentic text of the convention, i.e. the language by which the convention was formulated, becomes domestic law. 377

HÅKAN HYDÉN The dominating strategy in Sweden has always been that of transformation. Nevertheless, when it came to the CRC, the Swedish government saw it fit to commission a parliamentary committee in February 1996 to consider whether Sweden should incorporate the whole convention or whether transformation via existing or new laws should take place. The committee recommended transformation by arguing that many of the articles in CRC are meant to be implemented step by step and that they have a character which is not suited for interpretation and application by Swedish courts. According to the committee, the implementation of the CRC is more of a political process.3 It concluded, therefore, that it is better to follow up existing laws in order to verify whether they are in accordance with the CRC and its spirit. Finally, the committee stated that the interpretation of the convention should be done by the politicians in parliament, who will then enact such laws as may be required in order to allow for the human rights in the convention to be implemented in the best way.4 The committee subsequently delivered a report that covered the entire the legal system.5 The result was that some gaps and anomalies were identified wherein existing protective provisions did not meet the standard of the CRC. As examples, the committee pointed out that among the reasons for discrimination, handicap was not covered within the Swedish legislation, and thus recommended that it be dealt with. When it came to the Act by which children are taken into compulsory custody, the committee found that, instead of paying more attention to the best interest of the child, much emphasis was put on parental drawbacks. Finally, in relation to sexual abuse, Swedish legislation was found to be good enough for children beneath the age of 15 but not for those between 15 and 18. All of these were pointed out as areas in need of improvements. The right to education for children was regarded as covered; nevertheless, the Committee expressed the opinion that the municipalities should have a plan for dealing with truancy. The CRC emphasises that education should not only be free for all but also equal for all. The Committee looked seriously at the tendencies towards increasing ethnic and performance segregation which the introduction of liberty of choice within the education system has caused in Sweden. The health service in schools was also criticized and deemed to be in need of reforms. According to Article 51 in the CRC, states can make reservations to the CRC which are not incompatible with the object and purpose of the present Convention. Sweden did not find reason to make any reservations when Parliament decided to ratify the convention in June 1990. However, as we have seen, it took some time before the government took action to implement the convention. (The SecretaryGeneral of the United Nations (UN) shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession). 3

‘Barnets bästa i främsta rummet’ (‘The best interest of the child above all’), SOU 1997:116, p. 19. 4 Ibid. 5 Ibid., footnote 1.

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE 2.2. Ratification of the Convention on the Rights of the Child The nearly universal ratification of the CRC is remarkable. The convention was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989; it entered into force on 2 September 1990, when the minimum number of ratifications was reached. As a result of the active lobbying by the NGO Group which had been closely involved in drafting the text, the Convention was immediately signed by 61 countries during the official ceremony in New York on 26th January 1990.6 By signing, the States indicated their intention to ratify the Convention and to take all necessary steps in line with their national legislation. Formal ratification is thus the most important step in the process of implementation. Since then, every country in the world, with the exception of United States and Somalia, has committed itself to a code of binding obligations toward its children. This is so unique that it raises the question of how it could have come about. There are, of course, many possible explanations; nevertheless, one cannot underestimate or overlook the degree of intense pressure from the international community, including its financial institutions. This caused almost all countries, no matter how small or poor, to feel obliged to follow the mainstream opinion in order not to be stigmatised. Another explanation could also be related to the ubiquitous factor, self-interest. Most human rights conventions and regulations have a defensive character. They offer different kinds of protection for the citizen against the state and for the employee against his employer, as in the case of the first generation of civil and political rights. There is also protection against poverty, against destruction of social identity and against cultural degradation, as in the second generation of economic, social and cultural rights. There is further protection against environmental degradation, war and economic exploitation as in the third generation of so called peoples’ rights. Viewed from this perspective, the CRC represents something else. It is true that the CRC contains provisions referring both to the first generation of human rights and to those of the second generation,7 yet the aim of the CRC, whose intention is more offensive than protective, makes it unique. It is not simply a question of protecting children; rather it is a matter of creating the enabling environment that will augur well for the development of “the child’s personality, talents and mental and physical abilities to their fullest potential” (Article 29 (1) (a)). Thus, for example, whereas the second generation of human rights and partly the third generation require affirmative actions to be taken by State Parties, the CRC is definitive in terms of the nature of the specific actions required to be taken by them as follows: “(w)ith regard to economic, social and cultural rights, State Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation” (Article 4). 6

Eugeen Verhellen, Convention on the Rights of the Child (3rd revised edition, Garant, Leuven, 2000) p. 82. 7 Ibid., p. 85.

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HÅKAN HYDÉN State Parties shall also “take all appropriate legislative and administrative measures” for the sake of the well-being of the child (Article 3). Evidently, the CRC is highly demanding on State Parties, yet it has reached an almost universal ratification. And the best explanation for this could probably be related to the fact that State Parties regard the intention of the CRC as being in their own self-interest8. Today, societal and economic development are contingent upon the level of and as high a degree of education among the citizens as possible. It shows a marked difference when schools were first introduced into the Western world around the mid-19th century. At that time school education had a lot to do with “shaping the industrial worker”, giving him (sic) some basic competence (or qualifications) in order to assimilate him into the industrial production process. Today, when the Western world finds itself on the doorstep of a new information era, education is more about developing talents and releasing creative energy and capacity. Under the aegis of the ongoing globalisation, this tendency has spread to all countries in the world, differences in socio-economic conditions among State Parties notwithstanding. The allure lies in the CRC’s two-pronged emphasis on the right to education: “contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods” (Article 28 (3)). Hence, when in 2002 the Government of China invited the Special Rapporteur of the Commission on Human Rights on the Right to Education to visit the country,9 it hit the nail on the head by killing two birds with one stone. That is, the government of China did not only intend to show the world that it cares about human rights in general, but also that it has a genuine interest and considerable pride in promoting education. The CRC also recognizes that State Parties are at different phases of development, and hence emphasizes the need for individual States to take appropriate measures to implement the content of the Convention “in accordance with national conditions and within their means” (Article 27). Nevertheless, the main intentions and ambitions of the CRC remain the same for all countries, a fact which was confirmed by participants from countries representing different parts of the world at the SIDA-sponsored course on “Child rights, Classroom and School Management”.10

8

Cf., Per Olav Tiller, ‘Barns bästa är samhällets bästa’, (The best interest of the Child is the best interest of the Society), in Barnets bästa – en antologi (Bilaga till Barnkommitténs huvudbetänkande, SOU 1997:116). 9 Report submitted by the Special Rapporteur on the RIGHT TO EDUCATION, Katarina Tomasevski, Mission to the People’s Republic of China, 10–19 September 2003. 10 An advanced International Training Programme, conducted by Lund University, that started in Autumn 2003. Sida, the Swedish International Development Cooperation Agency, is a government agency that reports to the Ministry for Foreign Affairs.

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE 2.3. How to obtain correspondence between CRC and domestic law A weak point in international law is the lack of sanctions and enforcement mechanisms. Human rights implementations often have to fall back on other measures. The CRC is not only the latest contribution to the regime of human rights; it is also the strongest when it comes to securing implementation in accordance with the intentions of the convention.11 It states, unequivocally, that State Parties shall take all appropriate means to ensure that the aim of the convention is fulfilled (Article 2 (2)), including all appropriate legislative and administrative measures (Article 3 (2)), to the maximum extent of their available resources. Furthermore, State Parties should undertake to make the principles and provisions of the Convention widely known in the country (Article 42). A Committee on the Rights of the Child composed of 10 experts was established (Article 43) to evaluate the progress made by State Parties in achieving the goals of the CRC. In order to follow up the implementation of the content of the convention, the CRC has set up a reporting and monitoring system. Accordingly, State Parties shall, within two years of the entry into force of the Convention for the State Party concerned, submit reports on the measures they have adopted which give effect to the rights recognized in the Convention and on the progress made on the enjoyment of those rights (Article 44) to the Committee. Thereafter, progress reports shall be submitted by State Parties every five years. These reports shall indicate factors and difficulties affecting the degree of fulfilment of the obligations under the Convention. Reports shall also contain sufficient information, which will provide the Committee with a comprehensive understanding of the implementation process in the country concerned. The Committee may also request further information relevant to the implementation of the Convention other than the one provided in submitted reports (Article 44 (4)). In order to foster the effective implementation of the CRC the specialized agencies of the UN – such as ILO, WHO, UNESCO and UNICEF - are able to attend the meetings of the Committee. Together with other competent bodies, including nongovernmental organizations (NGOs) in consultative status with the UN and UN organs, they can submit pertinent information to the Committee and they can also be asked to advise on the optimal implementation of the Convention. Thus the High Commissioner for Human Rights 1995 designed an ‘Action Plan for Strengthening the Implementation of the Convention on the Rights of the Child’, which among other things, provides specific technical collaboration in preparation and drafting country reports and training of professionals involved in working with children.12 An NGO Group for the CRC has been set up in order to promote the involvement of non-governmental organizations in the reporting process to the Committee. It is a coalition of more than 50 international NGOs working together in order to facilitate the promotion, implementation and monitoring of the CRC. The 11

See Implementation Handbook for the Convention on the Rights of the Child, UNICEF, 2002, available at the different regional offices and issued in English, Spanish and French. 12 See Verhellen, supra note 6, p. 95.

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HÅKAN HYDÉN NGO Group meets regularly in Geneva to coordinate its action and develop joint strategies. Reports submitted to the Committee by NGOs for consideration by the Pre-sessional Working Group are available online.13 It is clear that the content of the Reports is a key issue for the implementation result. The Convention considers generating greater respect for children and thus improving their living conditions to be an ongoing task. Viewed from this perspective, the regular reporting has an important function. It can become an instrument for promoting interests in, and discussions on children’s rights and could serve the function of a sustainable means of actively improving the situation of children in society.14 While emphasizing that there is no favoured legislative or administrative model for implementation, the Committee has proposed a wide range of strategies to ensure Governments give appropriate priority and attention to children in order to implement the whole Convention effectively.15 The Committee has issued Guidelines for Periodic Reports (as well as for Initial Reports) where the Committee seeks detailed information on a wide range of measures, including legislative and administrative actions. In its guidelines the Committee has grouped the provisions of the Convention into clusters.16 The following, which also reflects the content of the CRC, are the clusters: I. General measures of implementation. II. Definition of the child. III. General principles, IV. Civil Rights and Freedoms. V. Family environment and Alternative Care, VI. Basic health and welfare. VII. Education, leisure and cultural activities. VIII. Special protection measures, such as A. Children in situation of emergency; B. Children involved with the system of administration of juvenile justice; C. Children in situation of exploitation; D. Children belonging to a minority or an indigenous group. This approach is meant to reflect the Convention’s holistic perspective of children’s rights: that they are indivisible and interrelated, and that equal importance should be attached to each and every right recognized therein.17 The Committee’s Guidelines for Periodic Reports therefore also asks in particular for information on existing or planned mechanisms at national or local level for coordinating policies relating to children and for monitoring the implementation of the Convention. In stressing the need for a comprehensive approach to the implementation of children’s rights, the Committee has frequently promoted the need for a national policy or plan of action reflecting the implementation of the CRC. For example, in the comments to India, the Committee stated: “The Committee recommends that the State Party adopt a comprehensive national plan of action, based on a child rights approach, to implement the Convention. The Committee recommends that attention be given to inter13

<www.crin.org>. Verhellen, supra note 6, p. 96. 15 See Implementation Handbook, supra note 11, pp. 53–84 16 Ibid., p. 629. 17 (CRC/C/58), para. 9. 14

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE sectoral coordination and cooperation at and between central, state and municipal levels of government. The State Party is encouraged to provide support to local authorities, including capacity-building, for implementation of the Convention.”18

This is one of the most common “subjects of concern” expressed by the Committee in its “Concluding Observations on State Parties’ Initial and Second Reports”. The Committee has pointed out lack of coordination between government departments and ministries and other governmental bodies, between federal or central government and provincial, regional or local government, between government and public and private bodies, including NGOs working with human and children’s rights, and between such bodies themselves. The Committee has made frequent recommendations for effective coordination in these respects. The Committee has also stressed that coordination and action to implement the Convention should extend beyond the government to all segments of society. It has underlined the importance of the involvement of NGOs and civil society, and in particular the direct involvement of children and young people. The Committee has also emphasized that States’ obligation to implement economic, social and cultural rights in the CRC “to the maximum extent of their available resources” implies adequate budgetary analysis. Monitoring and evaluation of children in the economic policies of government is regarded by the Committee as essential for any effective strategy in relation to the implementation of the CRC19. According to the Committee, States must minimize the negative effects of structural adjustment programmes, and any spending cuts on children; and the needs of the most vulnerable groups of children must be given priority. For instance, in relation to Peru the Committee stated:20 “The Committee urges the Government of Peru to take all the necessary steps to minimize the negative impact of the structural adjustment policies on the situation of children. The authorities should, in the light of article 3 and 4 of the Convention, undertake all appropriate measures to the maximum extent of their available resources to ensure that sufficient resources are allocated to children...”

The Committee has frequently noted that without sufficient data collection, including disaggregated data, it is impossible to assess the extent to which the Convention has been implemented. In its Guidelines for Periodic Reports the Committee therefore asks for detailed statistical and other information under most articles. For instance, in relation to Article 28 concerning Education, the Committee asks for the proportion of overall budget (at the central, regional, local, and where appropriate at the federal and provincial levels) devoted to children and allocated to the various levels of education, measures of sufficiency of teachers, adequacy of 18

India IRCO, Add.115, para. 15. Implementation Handbook, supra note 11, p. 71. 20 Peru IRCO, Add.8, para. 19. 19

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HÅKAN HYDÉN educational facilities and accessibility to all children, etc. In relation to Article 30 the Committee requires relevant disaggregated data on children belonging to ethnic, religious or linguistic minorities and who are indigenous, and on children affected by measures adopted to protect their rights.21 For instance the Committee recommended to Colombia:22 “that reliable quantitative and qualitative information be systematically collected and analysed to evaluate progress in the realization of the rights of the child and to monitor closely the situation of marginalized children, including those belonging to the poorest sectors of society and to indigenous groups.”

Similar recommendations are contained in many Concluding Observations by the Committee.23 3. The Relation Between Domestic Law and Norms Since legal regulation is geared to influencing behaviour, what one has to take into account is legal design. How is the law set up in order to have maximum effect? The wording of any law has no impact as such, unless it is backed up by sanctions or if it already corresponds to existing norms in society. In respect of the latter, it cannot be said that it is the law which sways behaviour insofar as social norms constitute the primary source of influence on human behaviour in society. Law, in most cases, is nothing but the codifying of existing norms. Thus, the question arises, albeit, not unnaturally, of why law is enacted at all. The answer is that the function of law is to stabilize and safeguard the norm by relating it to a system of enforcement in order to cope with those who do not freely comply with the norm/legal rule. This is an important aspect that should not be overlooked, particularly when one is looking at the chain of implementation of international conventions on their way to becoming domestic law. Conventions have no sanctions or enforcement machinery of their own, thus it was to overcome this problem that the CRC set up its own system of monitoring and reporting on the situation of children. In other words, it is only in the case of the incorporation of the Convention that a lack of sanctions will occur. However, if the Convention is first transformed into domestic law, the existing or new legislation could be backed up by sanctions and a system of enforcement. As an example, reference can be made to the system of creating the post of Ombudsman for children, as is the case in Sweden as well as in many other countries. Another aspect that must be considered in relation to the implementation of law is, for instance, if the regulation deals with interpersonal relationships or if it includes ambitions of affecting physical or other conditions in society. Thus, for instance, when we look at the right to education part of the CRC, Articles 28–30, we 21

See paragraph 7 of the introduction to the Guidelines for Periodic Reports. Colombia IRCO, Add.30, para. 15. 23 See Implementation Handbook, supra note 11, p. 73. 22

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE recognise that the regulation is about the necessity of making primary education compulsory, encouraging the development of different forms of secondary education and taking appropriate measures such as the introduction of free education and offering financial assistance in case of need. All these regulations ask for specific actions by the State Parties in order to create the enabling conditions that the legislation requires. In spite of this, there are still around 130 million children who are being deprived of their right to education, two thirds of whom are girls. Of the world’s adult population, around 800 million are still illiterate, most of whom are women. One third of all children who enrol at school never complete the primary level. Evidently, the State Parties of the CRC have a long way to go in taking the right actions toward the implementation of the Convention on the right to education. The same goes for achieving the intention of Article 29, which states that the right to education shall be directed toward the development of the child’s personality, talents and mental and physical abilities. This is something which has to be carefully thought through in terms of how best to achieve it. The education of teachers, the creation of committed teachers including salary aspects, school management including leadership, school environment and number of students in the classroom, are examples of factors that have to be dealt with. If the law in accordance with Article 29 of the CRC is supposed to have any impact on existing norms in society a lot of measures have to be considered. The design of the law is thus not only a question of articulating the letter of law; it is also, above all, related to the setting up of tools of implementation. There is, for instance, a need for supportive structures which can link the intended policy with the concrete reality. It goes without saying that these structures are dependent on how the context of the law appears. The different contexts and conditions for a childcentred or a child-rights approach in education are dissimilar in different parts of the world. This is the first lesson to be learned in order to overcome an occidental bias in the promotion of human rights. The idea and value behind any specific human right may rightly have been initiated and formulated in Western countries, and this more or less flaws the universal policy intended by the Convention. Nevertheless, there is ample room for particularistic considerations in the implementation process. In its abstract form, the universal goal of the convention might be the same for societies all over the world, yet its concrete manifestation, which is dependent on shifting conditions in the cultures and traditions of the specific countries, can turn it into a universal remedy. The relevance of this lesson becomes still more important when we look at the relationship between norms and society, that is, the last step in the implementation chain, which we now turn to. The norms of a country function as a mirror when viewed from the perspective of an international convention. If one does not recognize oneself in the mirror, it is due to the fact that the norms of that society are not reflecting the normative content of the international convention or, to put it the other way around, the Convention does not correspond to the norms of that society.

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HÅKAN HYDÉN In either case, the problem of implementation is to understand how norms are constituted and how they can be changed. 4. The Role of Norms in Society I will now deepen my reasoning concerning the role of norms in the implementation process. As a starting point, we can say that a law and consequently an international convention cannot be expected to have any sustainable effect, if it does not correspond to the norms already existing in a society. The reason for this is very simple: law comes from above, while norms grow from below. What is a norm? A simple definition of a norm, which is sufficient for the purpose of this article, is something that guides human actions or behaviour. The norm concept, however, consists of three dimensions or three sets of factors. In the first place, norms are an expression of a will. Someone wants to do something, and thus could be seen in this situation to be following a norm expressing this will. Thus will is the first basic component, or dimension, of a norm. However it is not enough that a person wants to do something. He or she has to also have knowledge and competence to carry out what he or she has purposed to pursue. Knowledge together with cognition is therefore the second dimension of the norm concept. The way one understands and apprehends the context of a situation is thus determinant in terms of the way in which one acts and the normative standpoint that one consequently takes up. Differences of opinion, even within legal decisionmaking, often emanate more from the question of how the situation, person, or thing has been understood in cognitive terms than from the judgments made based on pure value standpoints. The third dimension of a norm is related to the system conditions characterizing the situation or the society in which the action and consequently the norm occur. It is not enough that someone wants to do something and that the person has cognitively adequate knowledge on how to go about it, one has to also have factual possibilities to conduct what one wants and can do, in order for a norm to grow. While the first two dimensions are related to subjective factors among actors, this last, the third set of factors, is related to objective factors, i.e. they are not at the actors’ disposal. Hence the following graph, which elucidates the dimensions of the norm-concept:

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE

Motives-valuesdriving forces

Cognition

Will

Knowledge

Norm

Possibilities

System-conditions

I will now apply the basic reasoning behind this graph to the implementation of the CRC. However, in order to exemplify the kind of considerations, which have to be taken into account, I will present it in general terms. Thus, starting with the will component, I will show how this norm-model can be used to understand and explain the particular normative circumstances under which legal rules operate. The first question will be if we can presuppose that a country that has ratified the CRC also agrees with the will component. In other words, can we, as a starting point for this analysis, assume that the State Party has the will to really implement the Convention? Of course, this is not necessarily an either/or question, for, a State Party might agree with some parts of the convention and not with others, albeit without having made any reservations. However, we have reason to believe that some State Parties have ratified the CRC just to show a human face without any intentions of paying any real attention to the plight of children. For instance there are strong indications to suggest that Paraguay belongs to this category of countries.24 The will component is related to the political system, such that where corruption is widespread and the judiciary is in the hands of the ruling party and the military, as in countries like Paraguay, all public authorities and governmental institutions are bound to be unresponsive to human rights and the situation of children25. However the political system and public officials are not the only obstacles to the implementation of children’s rights. Parents too can constitute a key factor that is 24 See Patrik Olsson, Legal Ideals and Normative Realities. A case study of children’s rights and child labour activity in Paraguay, (Doctoral thesis) Lund Studies in Sociology of Law 19, 2003. 25 Ibid. pp. 163–165.

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HÅKAN HYDÉN worth noting in this connection. Parental attitudes are often a reflection of their own exclusion from educational opportunities.26 Another problem affecting the will to support children’s education among parents is the conflict between the financial needs of the family and the right of the individual child to go to school. Violence and corporal punishment or other types of abuse by fellow students or adults are other major factors in understanding the low enrolment in schools and high drop-out or repetition rates. When it comes to the will component of the norm, it is relevant to mention that human rights and international conventions like the CRC are not only a question of implementing or applying law. Human rights also play an important mobilizing role in society. It forms the basis for work by NGOs and others in their bid to advocate improvement of the situation for children, frequently against the immediate will of the State Party officials. This is something that the Committee on the Rights of the Child encourages. In a comment to Portugal the Committee observed that education goes beyond the school curricula and recommend the State Party to launch a permanent information campaign, both for children and adults, on the content and intentions of the Convention.27 The knowledge aspect of the norm is something which relates primarily to teachers when it comes to education. Examples of obstacles of implementation of the CRC might be inappropriate and poor quality of education, such as irrelevant, boring and bad teaching methods. It can also be a question of a language of instruction that is unfamiliar to students. This calls for training programmes and education of teachers and school management. That is what the Committee noted in the case of Costa Rica: “The Committee … recommends that the State Party conduct continuous training programmes for teachers on human rights, including children’s rights”.28 The Committee also pointed out the possibility for the State Party to seek technical assistance in this area, inter alia, from UNESCO and UNICEF. In relation to language problems the Committee has suggested that States teach in minority languages.29 The Committee has taken particular pains to recommend that the provisions of the Convention are translated into all minority languages and also recommended the translation of the State’s Initial Report and the Committee reports. In a comment to Peru the Committee suggested that the State Party should take action in “making schools more responsive to geographical and cultural diversity; and to improve the relevance of bilingual education programmes for children belonging to indigenous groups”.30 Norms, as mentioned above, are also formed by cognitive aspects. Thus, the curriculum is not the only way in which values are transmitted in schools. The aim is not simply, as pointed out in the Implementation Handbook for the Convention on 26

See Education for All: A Human Right and Basic Need. Policy for SIDA´s Development Cooperation in the Education Sector, June 2001, pp. 38–40. 27 Portugal IRCO, Add.45, para. 20. 28 Costa Rica 2RCO, Add.117, para. 24. 29 See Implementation Handbook supra note 11, pp. 460–461. 30 Peru 2RCO, Add.120, para. 25.

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE the Rights of the Child, to teach children human rights, in terms of the content of human rights treaties.31 The aim is “the development of respect for human rights”. This is related to the way pupils and teachers behave towards each other or appreciate each other. Children cannot be taught respect for rights unless members of the school community practise what they preach. This is how the committee puts it tersely in a general comment.32 Thus, efforts to promote the enjoyment of other rights must not be undermined, and should be reinforced by the values imparted in the educational process. This includes not only the content of the curriculum but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere. Children do not lose their human rights by virtue of passing through the school gates. Showing respect for minority and indigenous cultures and languages also encourages pupils’ self-esteem and thus their motivation to learn in school. Among the obstacles to the implementation of the CRC is cognition of discriminatory attitudes or prejudice towards girl children and children belonging to minority groups.33 For instance, the Committee recommend to the Government of Nicaragua to “develop public campaigns of the rights of the child with a view to effectively addressing the problem of persisting discriminatory attitudes and practices against particular groups of children such as girl children, children belonging to a minority or indigenous group and poor children. It also suggests that further proactive measures be developed to improve the 34 status of these groups of children.”

It seems to be a common phenomenon that in practice the general principles contained, for instance, in articles 3 and 12 are not respected. A significant example of this can be seen in the comment on Bolivia in the Committee’s examination of the Second Reports: “While the Committee notes that the principles of the “best interest of the child” (art.3) and “respect for the views of the child” (art.12) have been incorporated in domestic legislation, it remains concerned that in practice, as it is recognized in the report, these principles are not respected owing to the fact that children are not yet perceived as persons entitled to rights (underlined here) and that the rights of the child are undermined by adults’ interests.”35

To conclude, cognitive aspects of normative changes are not just an issue concerning school curriculum or about contents of text books; rather, it is related 31

Implementation Handbook, supra note 11, p. 441. General Comment 1, 2001, (HRI/GEN/1/Rev.5), para. 8. 33 Cf., Implementation Handbook supra note 11, pp. 446–449. 34 Nicaragua IRCO, Add.36, para. 31. 35 Bolivia 2RCO, Add.95, para. 18. 32

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HÅKAN HYDÉN more to teaching methods, attitudes and values among the teachers and school management. Turning finally to the possibilities of normative changes in relation to the third dimension of norms, system conditions are the most important intervening factors of all, in relation to norm formation and the implementation of law, particularly, given that political and economic factors and also social structures could become obstacles or possibilities in the implementation process. In relation to education, economic constraints among parents who cannot afford to pay eventual school fees or out-ofschool private tutoring affects school attendance by children. This might also be related to lack of facilities and bad environment, including long distances to school, rudimentary or dilapidated school buildings, or inadequate sanitary facilities. The foremost bar to equality of opportunity in education is, usually, the lack of resources- either in terms of a low government budget applied to education so that education is not made available to all members of the population, or in terms of families’ poverty so that the children have to be withheld or withdrawn from education.36 Governments can adopt strategies to help such families, such as Mexico’s ‘Children in Solidarity Programme’. The programme is set up to combat poverty, and aims to help children living in extreme poverty who are in danger of dropping out of school. They are awarded scholarships for a 12 month period which include economic support, the provision of a monthly stock of basic food for the whole family, curative and preventive medical assistance and the monitoring of nutrition, and the promotion of recreational workshops and activities of benefit to the whole community. Economic situation is often a restricting factor for the State Parties to live up to the standards of the CRC. Still, children are privileged compared to other groups in society in the prescribed allocation of budgetary means. As stated in article 4 “States Parties shall undertake such measures [implementation of the CRC] to the maximum extent of their available resources…” This puts children in a more favourable position than other groups in society. The proper functioning of the educational system is frequently limited by political and administrative factors, which include the presence of widespread corruption, mentioned earlier as but one factor. Other factors could be related to the system of administration of schools. Frequent absences of teachers are often related to the poverty of teachers, illness and the need for parallel income-generation. Still other factors include lack of educational training for teachers and poor management of the education system as a whole and of individual schools. Lack of or inappropriate curricula and lack of training material and school books represent even more obstacles related to the combined economic and political/administrative system-conditions.

36

Implementation Handbook, supra note 11, p. 412.

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IMPLEMENTATION AS A SOCIO-LEGAL ENTERPRISE 5. Some Final Remarks I have touched upon the different steps of implementation which a human rights Convention (or another Convention) has to go through before reaching its final destination. Implementation of a Convention could be called a multi-level governance problem. As has been pointed out clearly in this article, different aspects have to be dealt with at different and separate levels during the process. The initial figure representing possible deviations from the original content of the text of the Convention is to be regarded as a mere simplification of the implementation process. The idea, however, is an attempt to sort out the potential problems occurring at each level, i.e., the international, the State, the sub-state and the local level. This does not preclude the fact that deviance can occur at every level in the same case or that deviance at one level can be reinforced at another level. I have, for pedagogic reasons, chosen to deal with them, one at a time. The implementation of the political content of the Convention at both the international level and at the national level is a delicate legal issue due to the heterogeneity of legal cultures that intervene in the process. The design of the legal text and the legal machinery that will give support to the implementation process thus represents the next tricky step to be taken. This socio-legal enterprise requires insight into the specific kind of problems which the Convention raises. When it comes to the CRC we have seen that it is not only a matter of taking concrete measures such as building schools, employing and training teachers, but also, it is a matter of bringing about a specific policy, a child-centred approach, in teaching and school management. The final battle in the implementation process takes place when the legal ideals of the Convention meet the normative realities of the particular society where it is to be implemented. It is when the normative content from above and from outside – stemming from the international Convention and with domestic law as an intermediary - meets the undercurrent of existing norms in the society that the real challenges begin to occur.37 It is here that tensions are at their highest in the implementation process. I have, by making use of a norm-model above, tried to indicate the kind of dimensions which have to be taken into account in an actual study. The norm-model serves as a heuristic device that can help screen potential and relevant factors that could come into play on the normative scene, which the Convention is meant to influence. I have used examples from the comments made by the Committee on the Rights of the Child on the Reports from different countries and by from the numerous experiences garnered from SIDA’s Development Cooperation in the Education Sector, to prove that it is only by means of empirical studies conducted in a systematic way that the understanding of and the accuracy of implementation of 37

Cf., Per Wickenberg, Normstödjande strukturer. Miljötematiken börjar slå rot i skolan (Norm Supporting Structures: The Environmental Theme Begins to Take Root in Schools), (doctoral thesis), Lund Studies in Sociology of Law 5, 1999.

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HÅKAN HYDÉN international conventions and/or domestic law can be furthered.38 This article is thus meant to form the basis for such a task.

38 SIDA (and other donor agencies) ought to make use of the experiences gathered in relation to development projects by letting researchers systematize the lessons learned in different respects. It ought to be standard to set off a small portion, say 1–2 per cent, of the project budget in order to document and to analyse the consequences of interventions in a society which follows from an aid or development project. A typical example is the advanced International Training Programme, conducted by Lund University, which was set up in 2003 with qualified participants from different (receiving) countries in the world, especially as these participants are supposed to introduce projects in relation to the CRC in their respective home countries.

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LIST OF CONTRIBUTORS CARL-GUSTAF ANDRÉN Professor of Practical Theology and Church Law, former rector, Lund University and chancellor of universities and colleges in Sweden LENNART ASPEGREN LL.M. (Stockholm University); Under-Secretary-General of the United Nations and Judge at the International Criminal Tribunal for Rwanda (ICTY) 1995 to 2000 MICHAEL BOGDAN Professor of Comparative and Private International Law, University of Lund, Sweden OVE BRING Professor of International Law at the University of Stockholm RALPH CRAWSHAW B.A (Hons), LLM. Research Fellow, Human Rights Centre, University of Essex M. ARTHUR DIAKITÉ LL.B., Fil. Kand., M.A., LL.M. Researcher in Human Rights Law at the Raoul Wallenberg Insitute (RWI); Chairman, The English International Association of Lund (NGO); and Publisher of The Lundian Magazine <www.thelundian.com> VOJIN DIMITRIJEVIû Professor Dr. Dr. h.c., Director, Belgrade Centre for Human Rights, Belgrade, Serbia and Montenegro CEES FLINTERMAN Professor of human rights, Utrecht University (the Netherlands), director of the Netherlands Institute of Human Rights (SIM) and the Netherlands School of Human Rights Research; member of the United Nations Committee on the Elimination of Discrimination of Women (CEDAW). ELISABETH GERLE Senior Reader in Ethics at Lund University, Dean Pastoral Institute, Lund BRIAN GORLICK Regional Protection Officer, UNHCR Regional Office for the Baltic & Nordic Countries, Stockholm; MA (York University, Toronto), LLB (Osgoode Hall Law School), LLM (with distinction) (London School of Economics and Political Science); Barrister and Solicitor in Ontario, Canada JONAS GRIMHEDEN Student of Professor Göran Melander at the Master Program in Lund in 1996 and since then an employee at the Raoul Wallenberg Institute (RWI); Senior Researcher, BA, LLB, LLM, LLD LAURI HANNIKAINEN Professor of International Law at the University of Turku (Abo) in Finland. He spent three months in spring 2003 as visiting scholar at the Institute of International Law and 393

LIST OF CONTRIBUTORS International Relations, the University of Graz; he was then Senior Researcher at the Northern Institute for Environmental and Minority Law, University of Lapland, Finland. He is member of the European Commission against Racism and Intolerance (ECRI) at the Council of Europe HÅKAN HYDÉN Professor, Dr., in Sociology of Law since 1988, LLM and docent in Civil Law at Lund University DAVID A. G. LEWIS Doctoral Candidate and member of the Finnish Graduate School of Human Rights at Abo Akademi University Institute for Human Rights; LLM in Human Rights Law from The Raoul Wallenberg Institute; LLM in European Law from Lunds Universistet LI BAODONG Chinese Ambassador to Zambia ROBIN LÖÖF BA (Law) (University of Cambridge), Maîtrise en droit (Université Panthéon-Assas Paris II) and PhD candidate (European Institute, Florence) MARKO MILANOVIû Dipl. iur., LL.M. candidate (Michigan); Researcher, Belgrade Centre for Human Rights, Belgrade, Serbia and Montenegro STACEY NITCHOV L.L.B., B.A (Deakin University, Melbourne, Australia, 2001); Researcher, Netherlands Institute of Human Rights (SIM), Utrecht University, the Netherlands, 2003; Human Rights Legal Intern, Asylum Seeker Resource Centre, Melbourne, Australia, 2004; Legal Researcher, Deakin University, Melbourne, Australia, 2004; currently employed with the Department of Immigration and Multicultural and Indigenous Affairs, Melbourne, Australia, 2004-2005 GREGOR NOLL LL. D., Associate Professor of International Law, Lund University SUN SHIYAN LL.B. (Jilin University, 1991), LL.M. (Jilin University, 1994), Ph.D. (Graduate School of Chinese Academy of Social Sciences, 1999); Research Fellow and Professor, Centre for International Law Studies, Chinese Academy of Social Sciences; Visiting Professor 2003, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University HERDÍS THORGEIRSDÓTTIR Professor of constitutional law and human rights at the Faculty of Law, Bifrost School of Business in Iceland

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Göran Melander (ed.): The Raoul Wallenberg Institute Compilation of Human Rights Instruments ISBN 0 79233 646 1 U. Oji Umozurike: The African Charter on Human and Peoples’ Rights ISBN 90-411-0291-4 Bertrand G. Ramcharan (ed.): The Principle of Legality in International Human Rights Institutions; Selected Legal Opinions ISBN 90 411 0299 X Zelim Skurbaty: As If Peoples Mattered; Critical Appraisal of ‘Peoples’ and `Minorities’ from the International Human Rights Perspective and Beyond ISBN 90 411 1342 8 Gudmundur Alfredsson and Rolf Ring (eds.): The Inspection Panel of the World Bank; A Different Complaints Procedure ISBN 90 411 1390 8 Gregor Noll (ed.): Negotiating Asylum; The EU Acquis, Extraterritorial Protection and the Common Market of Deflection ISBN 90 411 1431 9 Gudmundur Alfredsson, Jonas Grimheden, Bertrand G. Ramcharan and Alfred de Zayas (eds.): International Human Rights Monitoring Mechanisms; Essays in Honour of Jakob Th. Möller ISBN 90 411 1445 9 Gudmundur Alfredsson and Peter Macalister-Smith (eds.): The Land Beyond; Collected Essays on Refugee Law and Policy ISBN 90 411 1493 9 Hans-Otto Sano, Gudmundur Alfredsson and Robin Clapp (eds.): Human Rights and Good Governance; Building Bridges ISBN 90 411 1776 8 Gudmundur Alfredsson and Maria Stavropoulou (eds.): Justice Pending: Indigenous Peoples and Other Good Causes; Essays in Honour of Erica-Irene A. Daes ISBN 90 411 1876 4 Göran Bexell and Dan-Erik Andersson (eds.): Universal Ethics; Perspectives and Proposals from Scandinavian Scholars ISBN 90 411 1933 7 Hans Göran Franck, Revised and edited by William Schabas: The Barbaric Punishment; Abolishing the Death Penalty ISBN 90 411 2151 X Radu Mares (ed.): Business and Human Rights; A Compilation of Documents ISBN 90 04 13656 8 Manfred Nowak: Introduction to the International Human Rights Regime ISBN 90 04 13658 4 (Hb) ISBN 90 04 13672 X (Pb) Göran Melander, Gudmundur Alfredsson and Leif Holmström (eds.): The Raoul Wallenberg Institute Compilation of Human Rights Instruments; Second Revised Edition ISBN 90 04 13857 9 Gregor Noll (ed.): Proof, Evidentiary Assessment and Credibility in Asylum Procedures ISBN 90 04 14065 4 Ineta Ziemele (ed.): Reservations to Human Rights Treaties and the Vienna Convention Regime; Conflict, Harmony or Reconciliation ISBN 90 04 14064 6 Nisuke Ando (ed.), on behalf of the Committee: Towards Implementing Universal Human Rights; Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee ISBN 90 04 14078 6

19. Zelim A. Skurbaty (ed.): Beyond a One-Dimensional State: An Emerging Right to Autonomy? ISBN 90 04 14204 5 20. Joshua Castellino and Niamh Walsh (eds.): International Law and Indigenous Peoples ISBN 90 04 14336 X 21. Herdís Thorgeirsdóttir: Journalism worthy of the Name Freedom within the Press under Article 10 of the European Convention on Human Rights ISBN 90 04 14528 1 22. Bertrand G. Ramcharan (ed.): Judicial Protection of Economic, Social and Cultural Rights: Cases and Materials ISBN 90 04 14562 1 23. Gro Nystuen: Achieving Peace or Protecting Human Rights? Conflicts between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement ISBN 90 04 14652 0 24. Maria Deanna Santos: Human Rights And Migrant Domestic Work – A Comparative Analysis of The Socio-Legal Status of Filipina Migrant Domestic Workers in Canada and Hong Kong ISBN 90 04 14527 3 25. Ragnhildur Helgadóttir: The Influence of American Theories of Judicial Review on Nordic Constitutional Law ISBN 90 04 15002 1