"U.S. Administration Sees Itself As Being Outside The Rule Of Law"
By Siddharth Narrain & Irene Khan
27 February, 2006
The HinduA recently released report of the United Nations Human Rights Commission has called on the United States to close its detention camp at Guantanamo Bay. What is your response to the U.S.' attempt to erode established international human rights principles post-September 11?
Around a year ago we made a call asking the United States to close Guantanamo. For us Guantanamo is just the tip of the iceberg. Over the last year we have seen new evidence coming out of "CIA black sites" where people are held in secret detention centres. Amnesty has interviewed people who have been in those detention centres. There seems to exist an underground or extrajudicial system. The United States administration sees itself as being outside the rule of law and some people as being beneath the rule of law. This is dangerous for people detained in Guantanamo and other detainees, and for the edifice of international law. When states see the most powerful government in the world not respecting international law, what message is it sending to them?
Do you support suggestions that the U.N. human rights machinery needs to be reformed?
Amnesty has been a strong critic of the U.N. Human Rights Commission. We saw it as riddled with factionalism, as ineffective and deeply politicised, and sometimes applying double standards — where some countries were put under pressure and others were ignored. We are pleased that there is a proposal to set up a U.N. Human Rights Council. But it is still early days, and the devil is in the details. Our position is that there should be a two-third majority required for countries to be on the proposed Council, rather than a simple majority so that the broad majority of the international community are confident that a particular country is the right one to be sitting on a council of this importance. We are also calling for frequent sittings of the proposed Council because if the Council sits only once a year it is not possible to keep an eye on key situations. We would like to see a system whereby all countries will be equally judged by the Council so that it will have an opportunity to scrutinise human rights situations everywhere, and not just selectively.
What is your assessment of the human rights situation in India?
In India, there are institutions like the judiciary, particularly the Supreme Court, which have been known to be great defenders of constitutional human rights. There is also the National Human Rights Commission and other institutions. There is interesting legislation now. What is interesting is the way in which the Indian Government is approaching the issue of economic and social rights. The challenge in India is in implementation of human rights on the ground, and in areas where there are security concerns. We see that in the Northeast for example, but also increasingly in areas like Orissa, Jharkhand, Chhattisgarh and other areas where there is activity of armed groups and where security forces have been deployed. These are areas that require special attention because the risk of human rights abuse is very high in these areas.
What issues did you raise in your meeting with the Home Ministry on this visit?
We in Amnesty are very pleased to see that POTA [the Prevention of Terrorism Act] has been repealed. We raised the issue of POTA cases that are pending review. They should have been reviewed by September 2005. Then there is the issue of the review of the Armed Forces Special Powers Act. We also have concerns about gender in the context of communal violence. We welcome the compensation provisions in the Communal Violence Bill, but we would like to see stronger measures for protection, particularly for women. The Gujarat experience of 2002 showed there was targeting of women in the riots. We feel it would be helpful if the legislation recognises the concept of communally motivated gender violence and provides specific measures for protection.
What is your position on security legislation in India and the demand for the repeal of the AFSPA?
The key issue with security legislation is their oversight and monitoring. This Government has shown its commitment to transparency and accountability by adopting the legislation on the right to information. So, in a non-conflict zone, the Government believes that accountability and transparency are important. We would like the Government to carry that principle into conflict zones. We recognise that in a conflict zone you cannot have the same act operating in the same way, but you need the same philosophy of scrutiny, and that is why what we would like the Government to do is to consider putting in some mechanism for independent review of these legislation implementation or the behaviour of security forces on the ground. At the moment there is no effective mechanism for that. On the Armed Forces Special Powers Act, we would like the repeal of the Act.
The Indian Government is yet to ratify the Convention Against Torture, and has not signed the Rome Statute of the International Criminal Court (ICC)? Did you raise these issues with the Government?
We raised the issue of the Convention Against Torture with the Government and were assured that the issue is really a technical one in the sense that they need to bring about some legal changes here in the definition of torture. The Government hopes this will be done this year, after which they can go ahead and ratify it. When it comes to the ICC, the Government says it has bigger concerns. Concerns around the issue of sovereignty. We feel that some of those concerns may be misplaced because the Rome Statute does not replace national jurisdiction. It places on the national jurisdiction the responsibility to adopt legislation to try war crimes and crimes against humanity. As long as the national system is willing to act there is no reason for the ICC to indict anyone. We feel that India would actually be strengthening the international system of justice by ratifying it and then bring into its own internal legislation war crimes and crimes against humanity.
Amnesty India has been very active in the campaign for justice for the survivors of the Bhopal Gas Tragedy. What are your views on the wider issue of making corporations liable for human rights violations?
The Bhopal case is a good example of the issue of the accountability of big business. In the Bhopal case, those affected have not got adequate compensation, the site has not yet been cleaned up, and people are still suffering from health and other consequences of the disaster. What we need are stronger mechanisms that set out the human rights obligations of companies — that means national and international laws that make companies accountable for human rights violations. But governments around the world are worried that such measures may scare off foreign investors. Amnesty has been pushing within the U.N. system the adoption of sets of standards in corporate accountability — the U.N. business norms. If the same standards were adopted in countries all over the world then companies cannot do "forum shopping" — they cannot shift from one country to another to take advantage of lower human rights standards.
The Indian Supreme Court has held that the death penalty can be awarded in the `rarest of the rare cases'. The NHRC chairperson's view is that since the constitutional validity of the death penalty has been considered and upheld by the apex court, it is for Parliament to consider the issue of the death penalty. What are your views on the issue?
I did raise this with the Home Ministry. The information that we are gathering on the death penalty indicates that there is no transparency. There doesn't seem to exist a figure for the total number of judgments in which the death penalty has been handed down. The last figures were published by the Law Commission in 1967. So we do not know whether it is given in the `rarest of the rare cases'. When you look at these cases carefully, you find that the sentences are actually handed down to those belonging to those in the poorer sections of society — those who cannot afford good lawyers. So the system is not necessarily providing fair results. Our experience with the death penalty around the world is that it does not have a deterrent effect.
What is your position on the controversy over the publications of cartoons depicting Prophet Muhammed by a Danish newspaper that were later republished by other newspapers in Europe?
I think that in both the situations of the Danish cartoons and the decision of the Indian Supreme Court in the Clemenceau case to ban demonstrations and articles pending the outcome of the hearing, the question that needs to be asked by the media is — what is the public interest? In the Clemenceau situation the public interest is clear. People need to know about environment and health concerns. In the case of the Danish cartoons, what is the public interest that you would expect to serve by publishing these cartoons or by republishing them? If you look at the result, those cartoons have been manipulated by various groups to actually create more violence and hatred. I don't think the publication of the Danish cartoons served any public interest.
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