31 civil society organisations from around the world, the majority from member states of the Organisation of the Islamic Conference call on the Human Rights Council to protect the mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and to reject the amendment to the mandate proposed by the Organisation of the Islamic Conference (OIC).
Ahead of a crucial vote at the Human Rights Council, We the undersigned national and international human rights organisations and other groups defending freedom of expression call on member states of the Human Rights Council to protect the mandate of the Special Rapporteur on Freedom of Expression.
During the 7th session of the Human Rights Council (HRC), the OIC formally introduced an amendment to the mandate of the Special Rapporteur on Freedom of Expression which, if passed, would require the Special Rapporteur to “report on instances where the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination, taking into account Articles 19(3) and 20 of the International Covenant on Civil and Political Rights and General Comment 15 of the Committee on Elimination of All Forms of Racial Discrimination which stipulates that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the freedom of opinion and expression.” Member states of the HRC will vote on the proposed amendment and the mandate at the end of the week.
We, the Undersigned, are deeply concerned that the proposed amendment undermines the mandate of the Special Rapporteur on freedom of expression, at a time when it most needs protection and strengthening.
The proposed amendment is particularly problematic for the following reasons:
1. It goes against the spirit of the mandate: The role of the Special Rapporteur is not to look at abusive expression, but to consider and monitor abusive limits on expression. There are several other United Nations bodies which have a specific role in relation to incitement to racial hatred, such as Committee on Elimination of All Forms of Racial Discrimination (CERD), which has devoted a lot of attention to it.
2. It lacks balance: The amendment only focuses on restrictions to freedom of expression, rather than on the idea of an appropriate balance between the positive protection for the right to freedom of expression and the need to limit incitement to racial and religious hatred. This lack of balance is reflected, for example, in the opening language, as well as in the reference only to Article 19(3), which is about restrictions on freedom of expression, rather than to Article 19 as a whole.
3. It is unnecessary: It is inherent to the mandate that the Special Rapporteur should consider and comment on appropriate limitations to the right to freedom of expression, as the current post-holder Ambeyi Limbago has done many times before (as well as his predecessor). Furthermore, by focusing specifically on one type of restriction, the proposed amendment puts undue emphasis on it.
4. It can be misinterpreted: The convoluted wording of the amendment may leave international human rights law generally and the special mandate specifically open to various misleading interpretations.
• International law provides for a clear and carefully calibrated framework of standards in this area, found in Articles 19 and 20 of the International Covenant on Civil and Political Rights, which rule out incitement to hatred on the basis of nationality, race or religion but which protect criticism, including criticisms of politics, beliefs systems or religion. In particular, the provisions on protection of reputation contained in international human rights law are designed to protect individuals, not abstract values or institutions.
• While international law permits certain restrictions on speech to protect reputation of individuals, these restrictions are not extended to cover religions per se. International law does not entirely rule out restrictions on speech to protect religion but circumscribes the precise scope of such restrictions. Religious believers have a right not to be discriminated against on the basis of their beliefs, but religion itself cannot be set free from criticism.
• The equality of all ideas and convictions before the law and the right to debate them freely is the keystone of democracy. As international human rights courts have stressed, freedom of expression is applicable not only to “information” or “ideas” that are favourably received, but also to those that may offend, shock or disturb any or all of us. The current amendment may be understood as an attempt to undermine this well-established framework.
We, the Undersigned, are particularly troubled by the repeated attacks against the mandate of the Special Rapporteur, and freedom of expression.
In view of the recent global rise in intolerance, the Human Rights Council should instead insist that freedom of expression itself is one of the most effective recourses and tools against abuses of human rights, including abuses of the right to equality. It should invite all relevant UN mandates to strengthen cooperation amongst such bodies towards promoting a better understanding of the indivisibility of human rights and what that principle means in practice. The Human Rights Council should also urge all member states to reinforce the international protection of the human rights of every people and every person – in particular, the individual rights to life, equality and justice, as well as the rights of minorities, including religious minorities, against acts of hatred, oppression and violence.
Signatories:
ARTICLE 19, UK
Cairo Institute for Human Rights Studies (CIHRS), Egypt
Adaleh Center for Human Rights Studies, Jordan
Al-Haq, Palestine
Andalus Institute for Tolerance and Anti-Violence Studies, Egypt
Amman Centre for Human Rights, Jordan
Azerbaijan Journalists' Trade Union, Azerbaijan
Bahrain Centre for Human Rights, Bahrain
Canadian Journalists for Free Expression, Canada
Cartoonists Rights Network, USA
Damascus Center for Human Rights Studies, Syria
Egyptian Initiative for Personal Rights, Egypt
Freedom House, USA
Greek Helsinki Monitor, Greece
Index on Censorship, U.K
International Pen, U.K
Iraqi Centre for Transparency and Anti-Corruption, Iraq
La Ligue Tunisienne pour la défense des Droits de l'Homme, Tunisia
Maharat Foundation, Lebanon
Massline Media Centre (MMC), Bangladesh
Media Institute of Southern Africa, Namibia
Media Rights Agenda, Nigeria
Palestinian Centre for Human Rights (PCHR), Palestine
Pakistan Press Foundation (PPF), Pakistan
Reporters Without Borders (RSF), France
Southeast Asian Press Alliance (SEAPA), Thailand
The Alliance of Independent Journalists (AJI), Indonesia
The Arabic Network for Human Rights (Egyptian)
The Centre for Peace and Development Initiatives (CPDI), Pakistan
The Network of African Academics for Media Policy and Regulation
The World Association of Newspapers, France
Today is March 24th, 2008, the 32nd anniversary of the military coup in Argentina that resulted in the disappearance of 30,000 people and the extra-judicial executions of untold more. March 24th is now the national day of memory for truth and justice in Argentina. Throughout the country, there will be marches, demonstrations and cultural activities to mark the day, remember the disappeared and demand truth and justice.
Thirty two years after the coup, justice has never been closer in Argentina, and yet so far away. In recent years, the legal impunity that prevented Argentine courts from prosecuting human rights violators for most of their crimes was abolished. In 2003, the Supreme Court ruled that the Punto Final and Due Obedience laws, which provided blanket amnesties for the military and its accomplices, were unconstitutional. The court reasoned that the gross human rights violations committed in Argentina amounted to crimes against humanity, which do not prescribe and cannot be amnestied under international law, in addition the state has a positive obligation under human rights treaty and customary international law to seek the truth and bring justice to victims of gross human rights violations. Last year, the court used the same rationale in ruling that the pardons issued by a democratic president to the highest military and civilian authorities for their participation in such human rights violations, were also unconstitutional. There are now no legal impediments in Argentina to bringing human rights violators to justice.
There are, however, practical impediments. The wheels of justice move impossibly slowly in Argentina. Of the thousand criminal procedures that remain open, only a handful have reached the trial stage and some of these concerned figures relatively low on the totem pole of Argentine repression. Moreover, most of these trials have involved only one defendant at a time, which frustrates any expectation of celerity in the overall achievement of justice. Even worse, defendants have been tried only for the abduction, torture and murder of a very reduced number of victims, rather than the dozens or even hundreds or thousands for which they were responsible. There is an element of injustice when a human rights violator is not forced to account for all the violations he committed.
At this time, however, there is a movement to consolidate the open cases by clandestine detention centers, and try all those accused of committing human rights violations in a given center together. One such case concerns the clandestine detention center located in Infantry Regiment No. 9 of the province of Corrientes, and that trial seems to be proceeding without any serious problems. However, prosecutors and judges have warned that there is a bottleneck at the trial court stage and that this will slow down once again the wheels of justice. In particular, the ESMA case - based on the largest clandestine detention center in Argentina, through which an estimated 5,000 people passed before being killed - and the First Army Corps case, which concerns the task forces responsible for the detention and disappearance of people in the Buenos Aires and other provinces, may not reach the trial stage this year, as had been promised. One solution would be to reassign some of the cases to courts with a lighter workload. Another possible solution is to open another trial chamber. This has not yet been done.
It is said that justice delayed is justice denied. I am sure that many in Argentina would agree with that sentiment. There is a strong pressure by civil society on the Argentine government to take whatever measures are necessary to speed up the trials. Indeed, the recent announcement that judge Alfredo Bisordi was retiring from his post at the Cassation Court, after being accused of slowing down the repression cases, was greeted with cheers by both the government and the human rights organizations. But more pressure and more economic resources are doubtlessly needed if the victims - including the now elderly parents of many of the disappeared - are to find justice before they, or their victimizers, die.
Lack of speed is not the only problem that Argentine justice is facing, however. In September 2006, Julio López, one of the survivors and witnesses in the trial against Etchecolatz, the Police chief of the province of Buenos Aires during the dictatorship, was disappeared once again and his fate remains unknown. Other witnesses, lawyers and human rights defenders have also received threats. Meanwhile, a defendant linked to the ESMA and the theft of children, was found dead days before his sentence was read. It's still not clear whether his death was a murder or suicide. Other mysterious deaths of accused human rights violators have human rights organizations concerned.
On a more positive note, the arms of Argentine justice are now extending to the time prior to the dictatorship and to the Actions of the Triple A death squad, responsible for hundreds of murders under the government of Isabel Perón. Perón herself is being investigated, and her extradition from Spain has been requested. In a first for Argentine justice, the government of the province of Mendoza has filed a demand against the Triple A for the murder of its own citizens.
The wheels of justice have also began to turn in other Latin American countries. Chile, with its Prussian efficiency, has already sentenced over 190 human rights violators and has more than 100 open cases. It is now concentrating on prosecuting civilian accomplices. The Supreme Court, meanwhile, has rejected a proposed bill which would reduce the sentences of human rights violators and further accelerate the criminal procedures. Despite its 1986 amnesty law, there are several open cases being investigated and tried in Uruguay on charges of crimes against humanity, in particular those relating to the so-called "death flights," through which Uruguayans detained and disappeared in Argentina were flown back to Uruguay. One former president and other top generals were jailed on such charges. Uruguay, moreover, has criminalized forced disappearances per se. Guatemala, meanwhile, has started its first trial on charges of forced disappearance and the trial of former president Fujimori for the disappearance and death of 9 students and one professor at La Cantuta university, is advancing with only minor difficulties in Peru. Honduras has also announced that it will re-open the cases of forced disappearances in the 1980s. On the other hand, the quest for justice in Colombia has taken yet another wrong turn after 11 prosecutors - including some working on key human rights cases such as that of the attack on the Justice Palace in 1985 - resigned after allegations of leaking information. And in El Salvador, civil society is still fighting for the derogation of the amnesty law which has left those responsible for the commission of war crimes and crimes against humanity scot-free. Meanwhile impunity for human rights violations, including forced disappearances, is de rigeur in Mexico.
Mixed as the Argentine and Latin American experiences are, I think they have much to say to the world in terms of the importance of keeping the struggle for justice alive, of not giving up and working both in the political and judicial arenas, both national and international, to put an end to impunity.