Enny SOEPRAPTO, PhD * 11 July 2004

Unedited

!1ECHANISM TO ADDRES S HUMAN RIGHTS VIOLATIONS **

* � (C'amris=tiCD=r), h-.bles:im lbmn Rights tbt:icml Caoui.ssiro.

ff l'tJtes preJBred for the � <D \'� lliicr:h am Justice Peace, - ··-·· ..... . - ·--.. --., ···-····-··-----·· · .. :t. ··-· •. •• ,.

�51 of Crmtim (JPIC) of Cmtoct Pen=uis en C:nflict Reoolut:i.cn, Peoce �:rk-cDI'"Hi.miil' �'·;-··a. fut'� l>rograme of �-Umted E�cal-MiSSieii-i.ti t:re-:-� Regicn, St.i<ma.<nvr, North Siuatera, fuk:res:ia, 12--17 July aDf.

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T.

II.

III.

IV.

v.

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r111roclucl io11

National mechanism

Regional mechanism

A. Europ2

B. Th€ Americas

C. Africa

D. Asia and the Pacific

International mechanism

Concludi�g notes

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CONTENTS

2

3

3

5

7

F

9

10

Enny SOEPRAPTO, PhD * 11 July 2004

Unedited

MECHANISMS TO ADDRESS H UMAN F.IGHTS VIOLATIONS ** -,

I. INTRODUCT ION

1. Respect.for human rig hts and iunda�ental fteedoms is one �f the main pillars and f e ature s of a democratic s9ciety • . . They. should theref ore be disseminated and promoted and, at the same time, be monitored to ensure their implementation and adoress their viol ations.

2. At the national level, the re sponsibility of promoting, protecting, upholding and impleme nting human rights and fundamen-­tal freedoms rests with the national government concerned. Rele­vant national leg islations are enacted, national instrume nts which spell out the detail s of way s anrl means unde r which the national g overnment sho�ld discharge such responsibility and which establish an appropriate mechanism as a means to· rnoni­tbr the impleme�tation of human rig hts and �undamental f re edoms recog nize d by the national legislations conce rned and, as appro­priate, to address their violations.

3. At the national level, such monitoring activitie s may .be entrusted to a specie! human �ights national institution esta­b lishe d spe cially for that purpo�e and by the civil society. The role of the civil society to participate in the nation3l ende avours to promote r�spect for human tights and f und�me nta1 freedoms is gene ral l y recognized by the national leg isl atious concerned or in practice.

4. At the reg ional level, the promotion, prote �tion, upholding and impleme ntation of human rights and fundamental f re edoms are carried out through, as a g e ne ral pattern, the adoption of a regional instrument. on human rights and f undame ntal freEdoms which incorporate s provisions on tl1e me ch3nism f or its observance and the relevant org ans to, be e starlis hed f or this purpose.

5. Reg ional mechanisms to ensure the observance of human rights and fundamental f reed0ms, including the handl�ng of their violations, are, essent ially similar to or f ollow the mecha�isms established at the international level. Euch mechanisms are ge nerally set forth in the international instrume nt concerned.

6. Some de tails on the me charisms to e snure the imvlementetion of the relevant instrume nts on human rights and f undamental freedoms, including the dealing of their v�olations, are noted be low.

* Member (Commissioner)1Indonesian Human Rights National CommiHsion.

Notes prepared for the Workshop on "Empowering Church and Justice, Peace, Integrity of Creation (JPIC) of Contact -Persons on Conflict Resolution, Peace Work and Human Rj_ghtsif;-;Joint EcumenicalProgramme of the United Evangelical-Mission in the Asian Region, Sukamakmur, North S umate:ta, Indonesia, 12-17 July 2004.

II. NATIONAL MECHANISM

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7. The general pattern of (!ndeavours to promote r£spect for and to ensure the observance of human righ ts and fundamental freedoms, including the de�ling of t hei r violations, is as follows:

(a) Enact ment of appropriat2 legislations, either through incorporation in the constitution or by issuing special legisla-· tion or both;

(b) Such le8islatiJnn usur.lly contain the following:

(i) List of human rights and fundamental freedorns recognizea and guarante ed;

(ii) Designation of the state :institutions responsible fo:c the protection, promotion, uphol­ding and imp 1 em en t .:it ion of human rights and fund�m�ntal freed oms;

(iii) Provisions on the establishment of an independent body with a two-fol d manriate of monitoring of the implementation of the human rights and funda­mental freedoms recognized and guaranteed in the legislation concerned and monitoring their possible violations;

(iv) The mandate of such independent institution includes libtS of funct �ons to be performed, activities to be conducted, way s, means and procedures to deal with alleged violations of human rights, and the extent and nature oi such functions end activities;

(v) The role of the civil society in the endeavours in the promo tion and protection of and respect f o human rights and fundamen�al freedoms.

8. With regard to the activities to be carried out by the independent natio�al inst�tuti6n i� th�

�� i �charge of its monitor­ing function, including the handling of allged violations of human rights and fundamental frP-edoms, include generally the following:

(a) Receiving and examining petitions, complaints and reports of alleged ·;iolations of human rights and fundamental freedoms and taking up appropriate follow-up actions;

(b) On the basis of its OMn fin diµg� or reports received, conducting inquiry and examinac.ion of ev ents wh-icb "mlgh-t involve violations of human rights and fundamental freedoms;

( c ) Bringing the find in gs on a 11 e g e d vi o 1 at ions of hum •lD rights and fundamental freedoms for t�e attention of the compe­tent authorities and for appropria te follow-up actions, particu­larly to take measures to repre ss the commission of such viola­tions and to prevent their recurrence;

(d) Other special activities that may be determined t.y the national legislation concerned.

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9. The activities referr�d to in the f oregoing paragrJph are those perf orme<l by human rights nat ional jnstitutions in countries where such institution exists, including the Indonesian Human Rights National Commission. It may be noted, howev�r, that, with respect to the Indonesian Human Rights National Com­mission, in addition to the afore-mentioned "traditional'' moni­toring function and activities, it �s also mandated to conduct pro justitia inquiry for crimes considered by the international commun ity as international crimes, i.e . tl1� crime of gcnor.:ide and crimes against humanity . whicli are c on:3idered by the relevant legislation as falling under the category of "gross vjolations of human rights".

10. As to the rol� of the civil society in the national endea­vours to promote respect for and observance and protection of human rights and f undamental f reedoms, it is generally prescriled in the pertinent legislation or in practice, that such role comprises the following:

(a) To suboit reports on alleged violations of human rights and fundamental freedows to th€ competent authorities and/or the national human rights institution;

(b) To submit propos als or recommendations relating to national policy and implemen�ing actions for the protection, promotion, upholding, and impleffien�atio n of human rights and f undamen tc:.l freed oms;

(c) To conduct reserach and s�udy , promote education and disseminate information on h·1rnan rights and fundamen tal freedoms.

III. REGIONAL MECHANISM

10. Regional mechanism for the promotion, protection and moni­toring the implementation of human rights and fundamental free­doms, includitlg the way s and means to address their violations, generally comprises the following:

(a) Adoption of a regional instrument on human rights and fundamental freedoms applicable for the region concerned;

(b) Under such instrument, est&hlishment of o:gans for two different but related purposes, namely :

(i) Monitoring organ of usually a deliberative nature;

(ii) Judicial organ which would examine and render judg­ment on vi o 1 a ti on s of human rights and fund ct men -tal freedoms.

A. EUROPE

11. Europe was the first region to adopt a regional instrumert on human rights and fundamental freedoms. On 4 November 19�0, in Rome, the European countries adopte< a European Convention

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for the Protection of Human Rights and �·urdamental Freedoms, popularly known as European Convention on Human Rights. This regional instrument was, subsequently, folJ owed by the adoption of various implementing regional instrLments such as protocols, recommendations and resolutiJns. In addition to the European Convention on Human Rights, 1950, which may be considered as the "mother" instrument on human rights and fundamental freedoms applicable in Europe, the cou'.:ltries in the Eurupean reg.ion sub.:;cqucntly adopted other Ln.strument.s of legal 11ulu1e

which deal with more specific subjects, such as the European Social Charter of 1 8 October 1961 and many other regional legal instruments relating to human rights-related subjects.

12. The European Convention on Human Rights, 1950 provides the establishment _ of two orgaLs to ensur€ the observance of the engagements undertaken by the States Parties thereto, namely:

(a) A European Commission of Human Rights; and

(b) A Europ�an Court of Human Rights.

13. The competence of the Commission includes the following:

(a) To deal with any 3lleged breach Jf the provision of the Convention referred thereto by aLJther State Party;

(b) To receive petitions (addressed to the Secretary­General) from �ny person, non-governmental organization or group of individuals claiming to be the victim a violation by one of the States Parties to the Conven�ion of the ri�hts anj freedoms set forth in the Convention�

(c) It should be noted that the Commission may only deai with such petitions after all domestic rem8dies have been exhaus­ted.

14. The procedure referred to ill para l3(c) above reaffirms the complementary nature of regional mechanism in the dealing of alleged violations of human rights. lt is the national mecha­nism that should address, in the first instance, such alleger violations.

14. As to the judicial organ, namely the European Court of Human n i g ht s , i t has the f o 11 owing con· p e t enc e :

(a) To consider cases br0ught before it by the States Parties to the Convention or the Commission;

(b) To consider all cases concerning che interpretation and application of the Conventior that the State� Parties or the Commission may refer to it.

15. With respect to the the prccedural aspects of the compe­tence of the. Court, the following are worth noting:

(a) It may only deal with a case after the Commi3sion has acknowledged the failure of ef�orts fer a friendly settle­ment within a specific period;

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( b) f ollows:

Parties that muy bring u case to the Court are as

(i)

(ii)

( . . . ) lll,

(iv)

The Commission;

A State Party to the Convention whose national clAimed tri b� a victim;

A State Party to the Convention which ref erred the case to the' Cowmi3sion; and

A Sta te Party to t!i.e Conv(�ntion against whicn the complaint has been lodged.

16. Another provision which relates to the competence of the Court which is of importance to note iE that the judgment of the Court is final.

B. THE AMERICAS

1 7. On 22 November 1969, in San Jose', Costa Rica, countries in Latin America anrt the Caribbean, adopted a regional human rights regional ins:rument called American Convention on Human Rights, "Pact of San Jose, Costa Rica".

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18. In addition to the provisi ons listing the rights and free­doms of every person in the civil, political, economic, social and cultural fiel ds, the American Convention, 1969, as is the European Convention, 1 950, also stipulates the setting ur of two regional organs which shalJ have the coirpetence on matters relating to the fulfiJlment of the commitments of the States Parties to the Convention. These two org 3ns are as f ollows:

(a) The Inter-American Commission on Human Riglts� and

(b) The Inter-American Court of Human Rights.

19. The main functions of �he CoDm�ssion are to promote respect f or and defense of human rights and, in the exercise of this mandate, it has, inter alia, to take action on petitions and other com��u1c�tions lodged or sent to the Commission by any person or group of persons or any non-governmental entity legally recognized in one or more member states of the Organization of American States.

20. The Convention also provides, inter alia, that a petition or communication lodged is admitted ty the Commission if it meets the following requirements:

(a) That the remedies under domestic law have been pJrsued and exhausted [in accordance with the generally recogLized principles of international law];

(b) Tha£ the petition or commun�cation is lodged �ithin a period of six months f rom �he date on ·�hich the party alleging �iolation of his rights was notif ied of tl1e final judgment;

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(c) That the subject of the petition or communication is not pending before another iuternatiunal proceeding for set­tlement; and

(d) In the case of petition or communica tion loJged by a person or gro11p of person:; or a non-governmental entity !er.ally recognized in one or more states of the Organization of American States, the petition or communication shall contain the name, nationality, profession, domicile, and .signature of the person or persons or of the legal representati.ve of the non-government�l entity lodging the petitio1.

2 1. Similar to the mechanism u1der the European Convention, 1950, the Inter-American Convention, 1969 a.ls·') reaffirms the cqmplemen­tary nature of the regional mechanism (see para 20(a) above).

22. To be noted that the Inter-American Convention, 1969 con·· tains a rather extensive procedure to be followed by the Commis­sion in the handling of petitions or communications alleging violation of any of the rights protected by the Convention.

23. With respect to the jurisdiction and functions of the Inter-American Court of Human kights the following would be worth noting:

(a) Only the States Parties to the Convention and the Commission have the right to submit a case to the Court;

(b) The jurisdiction of the Court comprises all cases concerning the interpretatior and application of the provisionn of the Convention that are subm�tted to it, provided that the States Parties to the case recogLized or have recognized such jurisdiction;

(c) If the Court finds that there lla.s been a violation of a right or freedom protected by che Convention:

(i) It shall rule that the injured party be ensured the enjoyment of the right or freedom th3t was violated ;

(ii) It shall also rule, as appropriate, that the consequences of the measure or situation that cons tit u t e d the b r ea -:: h of such right or fr E: e do m be remedied and that fair ccmpensation he paid to the injured party;

(d) In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Sourt:

(i) Shall adopt such provisional measures as it deem.s pertinent in matte�s it has under consi­deration;

(ii) With respect to a case not yet submitted to the Court, it may act at the request of the Commis8ion;

(e) The judgment of the Court is fina� and not subjEc� to appeal.

C. AFRICA

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24. On 26 June 1981, in Nairobi, Kenya, States members of the then Organization of African Unity (UAU) (now African Union) (AU), adopted a regional instrument for the purpose of promoting and protecting human and peoples' rights in Africa called African Charter on Human and Peoples' Rights.

25. Unlike the European Convention, 1950 and the Inter-American Convention, 1969, the African Charter, 1981 provides that only one organ that shall be set up to promo�e human and peoples' rights and to ensure their protection in Africa, namely the African Commission on Human aud .?eoples' Rigtts. The establish-ment of an African Court of Human and Peoples' Rights is no� provided by the Charter.

26. The mandate of the Commission consjs ts of promoting huma� and peoples' rights, ensuring the µr0tecticn of human and peo­ples' rights under conditions laid down by the Charter, inter­preting all the provisions of the Charter at the request of a State party or an instit11�ion of the OAU or an African organi­zation recognized by OAU, and performing any other tasks which may be entrusted by the Assemhly of H€ads of State and Govern­ment.

27. One of the activities to be un:iertaken by the Commission in the discharge of its mandace to promote human and peoples' rights is to formulate and lay down prin�iples and rules aimed at solving legal problems relating to hum211 and peoples' rights and fundamental freedoms upon which African Governments may base their legislations.

28. As to the procedural aspects of the mandate of the Com-mission, the fallowing two provisi.:>ns an.: Bignificant to note:

(a) The Commission may resort to uny appropriate method of investigation and may hear from the Secretary-General of the OAU or any other person capable of E,nlightening it;

(b) The Commission cen only deal w�th the matter submitted to it after makiog sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commssion that th� procedure of achieving these remedies would be urduly prolonged.

29. The provision referred to in para 28(a) above reaffl.rms the complementary nature of regional mechanism in the dealing of cases of alleged violations of human rights and fundawental freedoms as has been earlier affirmP.d by the Europ€an Conven­tion, 1950 and the Inter-American Convention, 1969.

D. ARAB WORLD

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30. On 1 5 September 1994 the Council of tha League of Arab States adopted an inter-Arab instrument for the promotion and protection of human rights dnd fund�mental freedoms in the Arab world called Arab Charter on Human Rights.

3 1. The Charter incorpor�tes many of the rights and freedoms referred to in the International B ills of human Rights (i. e. the Universal Declaration of Hum2n Rights, 1948, the Internatio­nal Covenant on Civil and Political Rights, 1966 and the Interna­tional Covenant on Economic, Social and Cultural Rights, 1966). However, it stops short of providing the establishment of, at least, a deliberat�ve body to ensure the observance of the States Parties to the Charter of their commitment to promote and protect human rights and fundamental freedoms se t forth in the instru­ment.

32. The Charter foresees only the establishment of a �even­member Committee of Experts on Humitn Righ ts with most limited substantive functions. It is functioning as a mere "post office'' in view of the fact that the Committee's mandate is limited to:

(a) Submissi1Jn of initial and periodic reports and reports of States Parties to the Charter to t�e Committee' s que stions;

(b) Consideration of reports submitted by States Parties to the Charter; and

(c) Submission of reports, together with the views and comments of the States Parties to the Charter, to the Standing Committee on Huma11 Rights at the Arab League.

E. ASIA AND THE PACIFIC

33. In terms of regional cooper8tion fo� the promotion of human rights and fundamental freedoms, countries in the Asian and Pacific re gion are far behind the countries in the other three regions (Europe, the AmericaG and Africa).

34. The region has rto regional ins trument on human rights and fundamental freedoms applicabl e to ��e region and, conse­quently, it has no regional mechanium to ensure the tespect for and observance of such rights and freedoms, including a regional mechanism for the handling of their.violations. '

35. At the r�gional level, Asia and the Pacific has �ot more than a lose regional framework for cooperat ion among existing national human rights institutio3s in countries in the Anian and Pacific region, called Asia and Pacific Forum (APF) with not more ·than fourteen national human rights institutions as its members.

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36. At the sub-regional leiel in the Asian and Pacific region, the member countries of the Association of Southeast Asian N�­tions (ASEAN) ·have b2en since· 'the 1990s trying to s.et up an AS-�AN humun rights mechanism which would include the possible setting up of an ASEAN Commission on Human Rights. Until the conclusion of the Fourth Workshop on ASEAN Regional Mechanism on Human Rights held in Jakarta, Indonesia, on 5 to 6 June 2004, some member States of ASEAN did not seem to tP- •ery much interested in the idea.

37. In the meantime, the representatives of the existing natio-nal human rights institutions of the ASEAN countries ( Indonesia, Malaysia, the Philippines and Thailand) have agreed to take an initial step towards a closer cbopsration among the n�tional human rights institution of ASEA N countries by holding a meeting in Bangkok, Thailand on or around 8 August 2004 to discuss poss�­ble areas of cooperation and problems of common concern as well as considering various possible forms of ASEAN Sub-regional Mechanism on Human Rights which would seem most feasible and practicable to start with in the nearest future.

IV. INTERNATIONAL MECHANISM

38. International mechanism for the monitoring and dealing of alleged violations of the previsions of the international human rights legal instrument concerred hns been well e�tablisted along the same pattern. It is generally as follows:

(a) A monitoring body of a relatively small number of persons acting on their individual capacity but nominated and elected by the States Parties to the instrument concerned is set up, either as stipulated by �he instr�ment concerned itself or by the com?etent body of the United Nat�ons;

(b) Such body is generally cc.lled "committee";

(c) (i) Its competence is to deal with complaints submit­ted by a Sta�e Party to the instrument concer,ed ou the non-observance of certain provisions of the instrument by another State Party to the instrument;

(ii) Communications from individuals claiming to be victims of violations of the provisions of the instrument concerned may only be received by s�ch body if the State co�cerned is a party to an aditional instrument (usually called "Additional Protocol") under which States Parties thereto recognize the competence of the body concerned to r eceive and consider such comwuni­cations from ind ividuals;

(d) Such body shall deal with a matter refer to it only after it has ascertained that all available domestic remedies have been invoked aud exhausted in the matter, in conformity with the generally recognized 11rinci)les of international law, unless the application of the domestic remedies is unreasonably prolonged.

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39. Below are the list of th e m0Pito1ing bodies on the. observance of the prov ision� of th� instrument concerned:

Instrument

(a) Internatioual Convention on the Elimination of All Forms of Ra­cial Discrimination (CERD), 1965

(b) International Covenant on Econo­mic, Social and Cultural Rights ( CESCR), 1966

Monitoring organ

C(�1nmittee on the Elimination of !facial Discrimination (CERD) (18 members)

Committee o� Economic, Social and Cultural Rights (CESCR) (18 members)

(c) International Covenant on Civil H14ilan Rights Corunittee (18 members)

(d)

(e)

(f)

(g)

(h)

and Political Rights (CCPR), 1966

International Convention on the Suppression and Punishment of Lhe Crime of Apartheid, 1973

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979

Convention against Torture and Other Cruel, Inhuman or Degra­ding Treatment or Punishment (CATJ, 1984

International Conve�tion on the Protection of the Rights of All Mir.rant Workers and Members of Their Families, 1988

Convention on the Rights of the Child (CRC), 1989

V. CONCLUDING NOTES

Group of three

Committee on the Elimination of Dis­crimination against Women (CEDAW) (23 members)

Committee against Torture (CAT) (10 members)

Committee on the Protection of the Prctection of the Rights ot All Mi­grant Workers and Members of Their Families (10, then 14 members· after the entry irito force bf the Convention for the 41st State Party)

Committee on -�he Rights of the Child (CRC) (10 members)

40. It transpires from the foregoing that mechanisms to a d-dress human rights violatione have the following features:

(a) Domestic remedies should first be invoked and exhaus­ted before invoking regional or interna tional mEchanism;

(b) Except Africa (which has a Co�miasion only) and Asia (which does not have a regional instrument), 1Joth Europe and the Americas have a Commission and a Court in the mechanism for the dealing of human rights viol�tions in the region con­cerned.

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(c) (i) For the purpose of monitoring the implementation of the in ternational instrument concerned, in­cluding the handling of alleged violations of certain provisions of the instrument, a body mostly called "Committee" is established;

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(ii) As a general rule, such body deals only with communicati1in s subm1 tted by the States Parties to �he instrument concerned;

(iii) Such body may receive and consider petitions and communications from individuals only if the State Party concerned is a Party to the r e 1 e v a n t c or r e :> p on d i n g ad 4ii t ion a 1 i n s t rumen t , mostly called "Additional Protocol", which entitles such body to receive and considers petitions and communications from individuals.