Item 9: ALRC’s Oral Statement on the Question of the violation of human rights and fundamental freedoms in any part of the world

Item 9: Question of the violation of human rights and fundamental freedoms in any part of the world

Presented by: Asmin Franciska [not delivered due to time contraints intruduced by the CHR]

Mr. Chairman,

I speak on behalf of the Asian Legal Resource Centre.

The Asian Legal Resource Centre is greatly concerned by the obstacles to enforcement of rights in countries throughout Asia. This condition stems in part from the neglect of article 2 of the ICCPR by state parties, and even by the human rights community itself. The absence of inquiries into violations of human rights guaranteed under UN covenants and conventions, and the poor quality of investigations that do occur, is a major hindrance to the prosecution of offenders.

The absence of inquiries results from the lack of legally empowered authorities to conduct them. Yet the human rights movement has paid very little attention to the requirement that state parties provide for such authorities. Demands are often made for prosecution of offenders. However, prosecution frequently does not take place due to lack of evidence. Evidence is not available as no authority exists to collect it. And so a vicious cycle occurs, giving a seemingly credible excuse for non-prosecution of offenders.

Like in any other crime, victims of human rights violations need to have access to an authority to make their statements and offer evidence. An authority is also needed to conduct forensic and other investigations. When no such authority exists, naturally investigation does not take place. The Asian Legal Resource Centre wishes to illustrate this widespread condition with a number of examples.

Ever since the establishment of the UN Transitional Authority in Cambodia, all elections so far held including that in May 1993 and the most recent commune election in 2002have been preceded by election-related extrajudicial killings. However, no authority exists to investigate these violations. It follows that there have been no prosecutions either. The perpetrators have not even been revealed.

In India, deaths due to racial and religious violence are endemic. There is extensive evidence of police involvement in this violence, as for example in the recent tragedy in Gujarat. However, again no authority exists to investigate such allegations.

In Sri Lanka, mass disappearances during the late 1980s and early 1990s have been condemned over the years by UN agencies, including the Commission, and the working group on disappearances. However despite enormous pressure just a handful of cases out of nearly 30,000 have ended in prosecutions. The lack of investigations means nobody has the facts relating to these killings. Initial attempts at forensic investigations failed. Mass graves and torture chambers remain uninvestigated.

Many countries in Asia have ratified the Convention against Torture and other Cruel and Inhuman Treatment or Punishment, yet despite endemic torture no prosecutions take place, for the same reason of a lack of investigating authorities. Often all that is available to pursue human rights violations are fact-finding inquiries. Fact-finding groups do not have the legal capacity or resources to collect evidence that can be produced in a court of law. At best, they end in making recommendations for proper inquiries and prosecutions. The victims and their families often misunderstand these fact-finding inquiries to be proper investigations for prosecution of offenders and are disappointed when that does not happen.

Without a genuinely independent authority to investigate human rights violations it is not possible to make human rights reality, rather than mere good ideas without a practical value. The Asian Legal Resource Centre urges the Commission and all other human rights agencies, including the Office of the Commissioner of Human Rights, to give careful consideration into this matter and find ways to address this important deficiency in implementation of human rights. Until state parties establish such authorities, article 2 of the ICCPR will remain neglected.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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