AGENDA

Revisiting The Plight Of Judicial Rights:

With Emphasis On Arbitrary Detention And Extrajudicial Executions

Tannishtha Bhattacharjee President

Angshuman Chowdhury Vice President

Eklavya Malvai Rapporteur

Message from the Executive Board

Firstly I congratulate you and welcome you as Dignified

Representatives of your Governments or Organizations to the Human

Rights Council at the 2nd

edition of IGITMUN, January 2013. The idea

behind picking this particular agenda is to explore one of the most

controversial government sponsored human rights violations that exist

in the world today.

This background guide is by no means an exhaustive plethora of

information that you must look up, as a party of your research. This is

just to familiarize you with the implications of each of the heavy terms

in the agenda, and the plight of judicial rights in the world, so many

years after evolutions of several democracies. There are several

questions that remain unanswered either because the answers

sometimes get too controversial, or that the question goes ignored of is

just plainly suppressed or less vehemently communicated. Here‟s

providing a platform to voice those questions again and try and look for

placating answers.

See you on 19th

of January!

Introduction

The “State” in it nascent stages underwent numerous challenges

regarding its role, powers and functions. What formed the majority of

arguments reigning from the Marxist bloc to the Liberal bloc was the

idea of the State being an entity above the normal strata of citizens, to

prevent anarchy like situation, while ensuring the interests and welfare

of citizens. The idea behind constructing a plane of power, whether or

not representative of the „general will‟, which anyway was always an

illusionary concept, was that the conceptualization of progress and

civilization is sustained beyond the primitive forms of egalitarian

lifestyle. The Marxists often have argued for an alienated State that

sustains itself on the contradiction of classes and class antagonism. The

argument of the State as a body politic alienating itself and representing

an entity above and beyond the normalcy of citizen body has been

taken much too seriously by the Political systems of today be it ironical

democracies or the fundamentalist dictatorships and authoritarian

regimes. Misuse of the position of the State is a frequently argued

statement on the part of a lot of sympathizing humanitarian

organizations. It is in this context of the State being one of the

perpetrators of crimes against it‟s or others‟ citizens rather than

protecting them against such evils that we discuss the alarming rates at

which occurrences of arbitrary detentions and extrajudicial killings

have increased across the world.

Justice systems in the world as an institution differ from political

system to system. Their structures conventionally depend on the

framework being democracy, or constitutional monarchy so on and so

forth. The ideal framework for an effective judicial system however has

always stressed on its independence. The unacceptability of allowing

any kind of influence in the dispensation of justice is what defines

judiciary as that organ of State which is the ultimate protector of

civilians and upholder of civic morality and humanity across the

boundaries of the State. Although a State institution, it is supposed to

function independent of the apex of political power, but the

implementation of that idea and the full dispensation of ideal justice

has been debatable.

Besides the internal problem of inefficiency or misplaced powers of the

State, there is also the projection of a State in a global scenario, with

challenges from across the border forcing countries to act unilaterally

in a not so fashionably humane manner. Suspicion and competition

driven countries of today, leave no scope for a lengthy procedure when

they are met with circumstances which apparently question their

sovereignty, integrity and security. Therefore examination of this

problem goes beyond a State centric approach to emerging challenges

from the front of international relations.

Defining the Two Terms: Legal Aspects

- Arbitrary Detentions

Arbitrary arrest and arbitrary detention are the arrest or detention of

an individual in a case in which there is no likelihood or evidence that

they committed a crime against legal statute, or in which there has been

no proper due process of law.

Arbitrarily arresting or detaining persons contradicts the legal principle

of habeas corpus* and is thereafter illegal in those regimes. In practice

in the 2000s (decade), arbitrary arrest or detention (the definitions of

these terms vary between different national jurisdictions) is typically

tolerated by the legal system for a short duration, of a few hours up to a

few days, in most democracies, especially in response to political street

demonstrations. It is often a characteristic of dictatorships or police

states, which may also engage in forced disappearances.

International bodies have determined that detention is arbitrary if it

results from proceedings that violate fundamental due process rights.

Proceedings using evidence that the detainee cannot examine or

challenge do not meet international standards of due process and

fundamental fairness. The use of evidence from secret sources in

asylum and other administrative proceedings is only permissible when

accompanied by particularly strong procedural safeguards that allow

the detainee and his representatives to meaningfully challenge the

source and substance of adverse evidence.

Preventive detention is an imprisonment that is putatively justified for

non-punitive purposes.

In contrast to this, under preventive detention the government can

imprison a person for some time without a criminal charge. It means

that if the government feels that a person being at liberty can be a threat

to the law and order or the unity and integrity of the nation, it can

detain or arrest that person to prevent him from doing this possible

harm. Some jurisdictions allow preventive detention only in specific

cases, for example only for persons who have already been sentenced

for a serious crime (or as part of the sentence for that crime).

A related, but different form of detention is detention of suspects. In

contrast to preventive detention, detention of suspects must quickly be

followed by a criminal charge (or happen after the charge).

*Habeas corpus (is a writ (legal action) which requires a person under

arrest to be brought before a judge or into court. This ensures that a

prisoner can be released from unlawful detention—that is, detention

lacking sufficient cause or evidence. It represents the idea that the king

or the President, may not, at his whim, detain whomever he wants

without allowing the detainee the opportunity to stand before a fair

court to hear the charges against him or her and to have an

opportunity to answer the charges. Filing a petition for a writ of

habeas corpus is a legal challenge to the government‟s ability to detain

an individual. It is brought against the person(s) responsible for

holding a detainee and requires that s/he produce the detainee along

with the reasons that this person is being held. The petition challenges

the legality of the detention based on a legal or a factual error. So, for

example, the error could be that the detention violates the Constitution.

Or, the petition could assert that the detainee was incorrectly identified

and the government arrested the wrong person. The court then decides

if the person is being held lawfully or if the detainee ought to be

released.

- Status Under International Law

Under international law, which is primarily standardized by

various legal tools provided by the United Nations under the

auspices of its Human Rights division, arbitrarily depriving a

civilian of his or her liberty without a proper judicial process is

strictly prohibited. This well-established legal status quo is

derived or conjectured from the Universal Declaration of

Human Rights (UDHR) as well as a plethora of UN

Resolutions on generic as well as specific elements of arbitrary

detentions. These resolutions have been globally accepted as

Covenants, Principles and Standards governing various aspects

of arbitrary detentions.

- International Standards

There exists several international legal tools (both binding and non-

binding on State Parties/Signatories), which unequivocally probihit the

practice of arbitrary detentions, and cover various sub-elements of

arbitrary detentions- the judicial tools, the contexts and the methods of

redressal. Most of these have been adopted by and disseminated by the

United Nations under the flagship of the UN Human Rights Council.

The most important ones are as follows:

1. The Universal Declaration of Human Rights (UDHR):

In recognition of the right to one‟s freedom from arbitrary arrest

and detention, the Universal Declaration of Human Rights,

adopted by the General Assembly of the United Nations in

1948, provides in Article 3 that "everyone has the right to life,

liberty and security of person," and in Article 9 that "no one

shall be subjected to arbitrary arrest, detention or exile."

2. The International Covenant on Civil and Political Rights

(ICCPR):

The United Nations General Assembly adopted the

International Covenant on Civil and Political Rights on

December 16, 1966. Arbitrary detentions are prohibited under

Article 9 of the same, especially Article 9(1), which goes as:

“Everyone has the right to liberty and security of person. No

one shall be subjected to arbitrary arrest or detention. No one

shall be deprived of his liberty except on such grounds and in

accordance with such procedure as are established by law.”

The subsequent judicial follow-ups and functional tools are

provided in the next two sub-clauses of Article 9.

3. Body of Pprinciples for the Protection of all Persons Under

Any Form of Detention or Imprisonment:

The principles state, inter alia, that a person held in prison or

detention of any kind shall not be exposed to any type of torture

or degrading treatment; and that the reason and period of time

that he is to be held in detention, the timing of the judicial or

other review, identity of the relevant detaining body, and place

of detention shall be documented and provided to the detainee

himself or to his attorney.

4. Standard Minimum Rules for Imprisonment of Prisoners:

The Standard Minimum Rules for the Treatment of

Prisoners were adopted on 30 August 1955 by the United

Nations Congress on the Prevention of Crime and the Treatment

of Offenders, held at Geneva, and approved by the Economic

and Social Council in Resolutions of 31 July 1957 and 13 May

1977.Although not legally binding, the Minimum Standards

provide guidelines for international and domestic law for

citizens held in prisons and other forms of custody. The

foundational principle described in the standards is that "There

shall be no discrimination on grounds of race, colour, sex,

language, religion, political or other opinion, national or social

origin, property, birth or other status".

5. United Nations Rules for the Administration of Juvenile

Justice (The Beijing Rules):

The United Nations Standard Minimum Rules for the

Administration of Juvenile Justice, often referred to as

the Beijing Rules, is a resolution of the United Nations General

Assembly regarding the treatment of juvenile prisoners and

offenders in member nations. It was adopted on 29 November

1985 by the United Nations General Assembly.

6. United Nations Rules For The Protection Of Juveniles

Deprived of Their Liberty:

This document attempts to establish a suitable standard in terms

of the protection of juveniles within the criminal justice system.

It is meant to be a supplement to the United Nations Standard

Minimum Rules for the Administration of Juvenile Justice,

otherwise known as The Beijing Rules.

Important Questions

1. What are the various other international legal tools (apart from

the ones mentioned above), from which one can conveniently

extrapolate the proscription of arbitrary detentions in all forms

or even contexts, which might lead to cases of arbitrary

detentions?

2. Are the various definitions like that of “arbitrary”, “detainee”,

“juvenile”, “conditions of detention”, “judicial rights”, etc.

mentioned in the aforementioned international documents broad

and concrete enough to ensure an unconditionally rightful and

holistic anti-arbitrary detention regime? (Analyze the various

debates on the ICCPR‟s wordings)

3. Are these international standards proving to be redundant and

pointless in the present-day world scenario owing to the non-

binding nature of most of them, and the non-compliance of

several states to them?

Extrajudicial Executions

Extrajudicial execution is a euphemism for murder.

More specifically, extrajudicial execution is when the state kills

someone without proper due process. This can either be by the direct

agents of the state (such as the military or police), or indirectly by

private citizens whom the state elects not to punish for its actions. (This

presupposes that the private citizen does not have an affirmative

defence that would hold up in the state's courts of law, such as self-

defence.)

Extrajudicial executions are almost universally considered as a human

rights violation. However, many states continue the practice, either in

secret or else justifying it as necessary. The most common justification

is that the state is in a state of emergency, and that the killings are

necessary because the judiciary is weak, slow, or corrupt. These

excuses are disregarded by human rights organizations in almost all

cases.

An enforced disappearance takes place when a person is arrested,

detained or abducted by the state or agents acting for the state, who

then deny that the person is being held or conceal their whereabouts,

placing them outside the protection of the law.

Very often, people who have disappeared are never released and their

fate remains unknown. Their families and friends may never find out

what has happened to them.

But the person has not just vanished. Someone, somewhere, knows

what has happened to them. Someone is responsible. Enforced

disappearance is a crime under international law but all too often the

perpetrators are never brought to justice.

Every enforced disappearance violates a range of human rights

including:

the right to security and dignity of person

the right not to be subjected to torture or other cruel, inhuman

or degrading treatment or punishment

the right to humane conditions of detention

the right to a legal personality

right to a fair trial

right to a family life

when the disappeared person is killed, the right to life

Enforced disappearance is a particularly cruel human rights violation; a

violation of the person who has disappeared and a violation of those

who love them. The disappeared person is often tortured and in

constant fear for their life, removed from the protection of the law,

deprived of all their rights and at the mercy of their captors. It is a

continuing violation which persists often for many years after the initial

abduction. If the person does not die and is eventually released, they

may continue to suffer for the rest of their life from the physical and

psychological consequences of this form of dehumanization and from

the brutality and torture which often accompany it.

- Legal Aspect

The right to life finds its most general recognition in Article 3 of the

Universal Declaration of Human Rights. Article 6 of the International

Covenant on Civil and Political Rights recognizes the inherent right of

every person to life, adding that this right "shall be protected by law"

and that "no one shall be arbitrarily deprived of life". The right to life

of persons under the age of 18 and the obligation of States to guarantee

the enjoyment of this right to the maximum extent possible are both

specifically recognized in Article 6 of the Convention on the Rights of

the Child.

In accordance with Article 2 of the Universal Declaration of Human

Rights and Articles 2 and 26 of the International Covenant on Civil and

Political Rights, and pursuant to several other United Nations

declarations and conventions, everyone is entitled to the protection of

the right to life without distinction or discrimination of any kind, and

all persons shall be guaranteed equal and effective access to remedies

for the violation of this right.

Moreover, article 4, paragraph 2, of the International Covenant on Civil

and Political Rights provides that exceptional circumstances such as

internal political instability or any other public emergency may not be

invoked to justify any derogation from the right to life and security of

the person. The general recognition of the right to life of every person

in the aforementioned international instruments constitutes the legal

basis for the work of the Special Rapporteur. Various other treaties,

resolutions, conventions and declarations adopted by competent United

Nations bodies contain provisions relating to specific types of

violations of the right to life.

One of the most pertinent of these instruments is the Principles on the

Effective Prevention and Investigation of Extra-legal, Arbitrary and

Summary Executions, adopted by the Economic and Social Council in

its resolution 1989/65 of 24 May 1989. Principle 4 sets forth the

obligation of Governments to guarantee effective protection through

judicial or other means to individuals and groups who are in danger of

extra-legal, arbitrary or summary executions, including those who

receive death threats. 1

1 http://www2.ohchr.org/english/law/executions.htm

Notes

There are certain related concepts that might be important to have

an insight on, to widen one’s perspective on these two occurrences.

Capital Punishment

Capital punishment or the death penalty is a legal process

whereby a person is put to death by the state as a punishment

for a crime. The judicial decree that someone be punished in

this manner is a death sentence, while the actual process of

killing the person is an execution. This is within legal

procedure, much to the dismay of most humanitarian

organisations, but then still very distinctly different from

extrajudicial executions, merely because of the fair process

adopted prior to the stage of execution and the transparency

in operations undertaken by the State.

Death Penalty in International Law

The Universal Declaration of Human Rights, adopted by the United

Nations General Assembly in December 1948, recognizes each

person‟s right to life. It categorically states that “No one shall be

subjected to torture or to cruel, inhuman or degrading treatment or

punishment” (Article 5). In Amnesty International‟s view, the death

penalty violates these rights.

The community of states has adopted four international treaties

specifically providing for the abolition of the death penalty. Through

the years, several UN bodies discussed and adopted measures to

support the call for the worldwide abolition of the death penalty.

In December 2007 and 2008 the United Nations General Assembly

(UNGA) adopted resolutions 62/149 and 63/168, calling for a

moratorium on the use of the death penalty. Since then, other regional

bodies or civil society coalitions adopted resolutions and declarations

advocating for a moratorium on executions as a step towards global

abolition of the death penalty.

These resolutions are not legally binding on governments, but represent

important milestones for the abolitionist movement and constitute a

continued progress towards the total exclusion of capital punishment

from International Law.2

Political Prisoner

A political prisoner is „someone who is in prison because they have

opposed or criticized the government of their own country‟.

It is important to explore exactly what the term political prisoner

means. Anyone imprisoned for peacefully speaking out against their

government, sedition, for supposed blasphemy while acting within their

capacity in terms of religion, their culture, race or gender can be

considered a political prisoner, a term often used interchangeably with

prisoner of conscience, which is a designation used by Amnesty

International and sometimes the United Nations. People can be made

prisoners of conscience for many reasons. These include:

involvement in non-violent political activities

belonging to a minority group struggling for autonomy

taking part in trade union activities

not using a country‟s official language

refusing to perform military service on grounds of conscience

gender or sexual identity.

It is a principle of Amnesty International to offer help only to

political prisoners who have not used violence or force, regardless

of their motivation, to protest or to help aggrieved parties in a

conflict ridden area (like humanitarian organisations personnel). 3

They are often subjected to arbitrary detentions, especially in countries

like China, which are intolerant towards opposition in any form, and

hence deny any democratic representation of dissent as well. Cuba also

has a history of arbitrarily detaining people under the category of

political prisoners for considerably long durations.

Extradition

A very common practice within the State practice is to act in it‟s

national interest against any kind of foreign probe or aggression. As a

part of this external function of the State have been numerous instances

of foreigners being subjected to arbitrary detentions, or forced

2 http://www.amnesty.org/en/death-penalty/international-law

3 http://www.aappb.org/Torture_political_prisoners_and_the_un-rule_of_law.pdf

disappearances or very plainly stated extrajudicial killings. Whether it

be an instance of espionage or of diplomatic missions, or of external

journalism or simply a personal or economically motivated visit, cases

about suspicions regarding a foreign element within State boundary,

and the due course of legal procedures applied (or not) has been a

matter of great concern. Of that extradition forms a major part as a

concept concerning foreign elements in an alien land and legal

procedures regarding their jurisdiction.

Extradition may be briefly described as the surrender of an alleged or

convicted criminal by one State to another. More precisely, extradition

may be defined as the process by which one State upon the request of

another surrenders to the latter a person found within its jurisdiction for

trial and punishment or, if he has been already convicted, only for

punishment, on account of a crime punishable by the laws of the

requesting State and committed outside the territory of the requested

State.

Extradition plays an important role in the international battle against

crime. It owes its existence to the so-called principle of territoriality of

criminal law, according to which a State will not apply its penal

statutes to acts committed outside its own boundaries except where the

protection of special national interests is at stake. In view of the

solidarity of nations in the repression of criminality, however, a State,

though refusing to impose direct penal sanctions to offences committed

abroad, is usually willing to cooperate otherwise in bringing the

perpetrator to justice lest he goes unpunished.4

State of Emergency

A state of emergency is a governmental declaration that may suspend

some normal functions of the executive, legislative and judicial powers,

alert citizens to change their normal behaviours, or order government

agencies to implement emergency preparedness plans. It can also be

used as a rationale for suspending rights and freedoms, even if

guaranteed under the constitution. Such declarations usually come

during a time of natural or man made disaster, during periods of civil

unrest, or following a declaration of war or situation of international or

internal armed conflict. Justitium is its equivalent in Roman law.

In some countries, the state of emergency and its effects on human

rights and freedoms and governmental procedure are regulated by

the constitution and/or a law that limits the powers that may be

invoked. Rights and freedoms may be suspended during an emergency,

for instance, freedom of movement, but not non-derogable rights.[1]

In

4 http://cbi.nic.in/interpol/extradition.php

many countries it is illegal to modify the emergency law or the

constitution during the emergency.

The Emergency Provisions of the Constitution were included to protect

national security in times of dire need, yet, they can be easily abused.

Within such provisions there are also provisions for arbitrary arrests

and a delayed judicial procedure and even extrajudicial executions. In

a state of emergency, Fundamental Rights can be amended to suit

national interests. Is this a necessary evil or are Fundamental Rights too

„fundamental‟ to be discarded with?

Torture or Other Inhuman or Degrading Treatment of

Prisoners

Torture and other forms of ill-treatment are often used alongside

detention and imprisonment to gain information or a confession, as

well as to punish, intimidate and threaten prisoners and detainees.

10 most prevalent forms of torture:

In 2000, human rights group Amnesty International and

African social sciences organization CODESRIA published a

handbook for watchdog groups monitoring prisons where

torture is suspected. The guide offers insight into just what

qualifies as cruel, inhuman and degrading (CID) treatment.

Mock Executions:

A mock execution is any situation in which a victim feels that

his or her death -- or the death of another person -- is imminent

or has taken place. It could be as hands-off as verbally

threatening a detainee's life, or as dramatic as blindfolding a

victim, holding an unloaded gun to the back of his or her head

and pulling the trigger.

Hanging by Limbs:

Usually took the form of tying the elbows behind the back and

tightening them until they touched or arching the back with a

rope stretched from the feet to the throat" . The tension created

in the muscles by this extreme tightening --exacerbated by

hanging victims from their limbs -- can cause lasting nerve

damage.

Sexual Assault:

Rape is a common form of torture, especially during wartime.

Rape of men, women and children has occurred during conflicts

across the globe. In the Balkan Wars of the 1990s, Muslim

Bosnian women were subjected to systematic rape at the hands

of Serb soldiers

Electric Shocks:

Electric shock torture methods haven't been around as long as

many other widely used methods -- humans didn't figure out

how to harness electricity until the late 19th century. Once

established, however, electricity soon came into use as a

method of torture.

Beatings:

There are some specific methods to this kind of torture, too.

The falanga (or falanka, depending on where in the world

you're being tortured) method involves beating the soles of the

feet. This type of torture can leave victims' feet insensitive to

touch and temperature and cause lasting, severe pain and an

altered gait while walking

Traumatic Removal of Tissue and Appendages:

Amputation and tissue removal have long been used as forms of

torture. Torturers commonly remove fingernails, teeth and

digits from victims, but any body part could be a target.

Forced Human Experimentation:

Prisoners of concentration camps were pushed up to -- and

sometimes beyond -- the limits of survival. Victims were forced

to sit for hours in icy water, infected with all manner of disease

and inflicted with wounds mimicking those received on the

battlefield. Doctors then would treat victims with reckless,

painful procedures that often ended in death.

Asphyxiation:

Suffocating is frightening enough, but recent research reveals a

physiological reason for its effectiveness as a method of torture.

Researchers from the University of Iowa found that, when mice

breathed air with increased levels of CO2 -- the same gas that

builds up in people when they suffocate -- the mice responded

by freezing in place.

Penetrating Injuries:

All torture is horrific, but penetrating injuries like stab wounds

and gunshots can be particularly traumatic. A Boston University

study showed that such injuries stand out among modes of

torture for leaving lasting neurological damage. Those findings

make perfect sense; guns and knives are capable of inflicting

severe internal damage, often in ways the perpetrator didn't

intend.

Burns:

Among the many stories of abuse from Moammar Gadhafi's

regime emerging from Libya in the summer of 2011, the details

of Shwygar Mullah's torture proved especially heart wrenching.

Shwygar was working for Moammar's son Hannibal as a nanny

for his two children when, she says, Hannibal's wife Aline

became upset with her for not keeping the couple's children

quiet5

5 http://science.howstuffworks.com/five-forms-of-torture.htm/printable

Occurences

Arbitrary or extrajudicial detention is the detention of individuals by a

state, without ever laying formal charges against them. Although it has

a long history of legitimate use in wartime or conflict (like in the form

of prisoner of war, Civilian Internee), detention without charge,

sometimes in secret, has been one of the hallmarks of totalitarian states.

During the Cold War, the former Soviet Union and Communist Bloc

countries used to kill dissidents extrajudicially during the 1930s.

Nguyễn Văn Lém (referred to as Captain Bay Lop) was a member of

the Viet Cong who was summarily shot in Saigon during the Tet

Offensive. The photograph of his death would become one of many

anti-Vietnam War icons in the Western World.

During the 1960s and throughout the 1970s, death squads were used

against the Viet Cong cadre as well as supporters in neighbouring

countries (notably Cambodia).6 The Viet Cong also used death squads

of their own against civilians for political reasons. Argentina used

extrajudicial killings as way of crushing the liberal and communist

opposition to the military junta during the 'Dirty war' of the late 1960s

and most of the 1970s. Alianza Anticomunista Argentina was a far-

right death squad mainly active during the "Dirty War". The Chilean

Junta of 1973 to 1992 also committed such killings. 7

We present two major case studies, but this is arguably by no means the

only prevailing reigners as far as both these problems are concerned,

interested delegates might want to read up a bit on Phillipines8,

Myanmar, United Kingdom9, United States of America, Thailand

10,

Israel and Iraq for detailed stories on occurrences of such events.

6 See also Phoenix Program (also known as Phung Hoang) 7 see Operation Condor for example.

8 The Philippines has had its share of extrajudicial atrocities and related political violence as well, the most recent being the Maguindanao massacre in Mindanao (November 2009). The Committee to Protect Journalists (CPJ) has called the massacre the single deadliest event for journalists in history. Even prior to this, the CPJ had labeled the Philippines the second most dangerous country for journalists, second only to Iraq. 9 During the Irish war of independence in 1916–21, the British forces organised several secret assassination squads. In 1920 alone the Royal Irish Constabulary Reserve Force murdered the mayors of Limerick and Cork cities. 10

Reportedly thousands of extrajudicial killings occurred during the 2003 anti-drug effort of Thailand's prime minister Thaksin Shinawatra. Rumors still persist that there is collusion between the government, rogue military officers and radical right wing/ anti-drugs death squads. Both Muslim and Buddhist sectarian death squads still operate in the south of the country.

CASE STUDY #1: INDIA

India, a nation ridden with the bullets of communal strife, secessionist

divides, anti-State insurgency and religious vendettas has witnessed a

past and present of arbitrary detentions carried under contradictory

legalities in various settings and contexts. The Constitution of India,

complemented by the Indian Penal Code (IPC) fully guarantees a

concrete judicial backing to arrests and detentions as well as the

subsequent legal procedures- forming a binding element of the

obligations of India as a member of the United Nations (and thus, a

participating signatory to the UDHR) and a State Party to both the

ICCPR and the Convention against Torture. However, the ground

reality has been somewhat dichotomous. Highly disturbed regions like

the Islamic insurgency-prone Kashmir, the Naxal-dominated areas of

Chhattisgarh, Jharkhand, Orissa, M.P. and Andhra Pradesh, the

communally contrasted Northeastern parts along with the urban centers

of New Delhi and Mumbai have confronted the fundamentally toxic

problem of arbitrary arrests, under the blanket of a host of laws and

State directives, which controvert the written laws and the international

compliances of the nation as a whole. Several credible international

organizations in the likes of Amnesty International and Human Rights

Watch (HRW) have published a plethora of reports in the past decade

alleging the Indian government of denying its citizens the basic right of

being immune from arbitrary arrests or the right to be entitled to a fair

and comprehensive judicial process. Like many other conscious nations

in the effervescent geopolitical scenario of the present day, India too

has massively escalated its efforts to counter international and domestic

terrorism in all forms, owing to the countless incidents of mass murder

and paranoia that the nation had to reel under in the past two or three

decades. While doing this, it might have disregarded certain

foundational elements of its own constitution- one of them being the

right to freedom of speech and expression and the right to a free and

fair trial. This has manifested in various forms and incidents, a few of

which are given in the next couple of pages.

A Valley in Turmoil: Laws that Kill (Jammu and Kashmir)

Excerpt from Still a „Lawless Law‟: Detentions under the Jammu &

Kashmir Public Safety Act of 1978, published by Amnesty International

in 2012;

“On 10 August 2011, authorities in the state of Jammu and Kashmir

(J&K) detained 40-year old Javaid Akbar Sheikh from Pulwama

district under the J&K Public Safety Act, 1978 (PSA) for the first time.

According to his PSA detention order, Javaid Akbar Sheikh was

detained to prevent him from acting in a manner prejudicial to the

security of the state, and because it was believed that he posed a severe

threat to public order.1 Javaid Akbar Sheikh challenged his detention in

the J&K High Court. In February 2012, the J&K High Court quashed

the detention order against him “for lack of application of mind”,

finding that the detaining authority had failed to perform its statutory

obligations. According to the J&K High Court, the fact that the grounds

of detention “at one place, state[s] that the activities of the detenue are

prejudicial to the security of the State and at another place of the same

proceedings, state[s] that the activities are prejudicial to public order”

could not be legally sustained. While authorities released Javaid Akbar

Sheikh following the J&K High Court‟s direction, they detained him

again three months later. The new PSA detention order, dated 4 May

2012,3 contained the same grounds of detention as the order that was

quashed by the High Court in February 2012. Javaid Akbar Sheikh is

currently in detention again, while a petition against his new detention

order is pending before the J&K High Court.”

“Indian authorities first arrested Mushtaq-ul-Islam, leader of the

Muslim League in Jammu and Kashmir, in November 2010. His arrest

was based on his views of self-determination for the Kashmiri people.

Laws under India‟s Public Safety Act, which has been deemed illegal

by human rights activists, were used to legitimize the arrest. For almost

two years, the leader was relocated to several prisons including

Udhampur, KotBilwal Jammu and Srinagar Central jail. He was finally

released on 14 July 2012. Five days later, Mushtaq-ul-Islam was

minutes away from addressing a news conference in a hotel in Srinagar

when police authorities arrested him once again. They brutally covered

his mouth with a cloth and pushed him into a vehicle. He is currently

being held in KothiBagh police station. They claim he was on the verge

of delivering a highly provocative speech that would breach the peace.

The anticipated speech however was going to reveal the difficult prison

conditions and the poor treatment Mushtaqul-Islam suffered throughout

his detention. There is no sign of his imminent release.”

THE LAWS IN QUESTION:

1) The J&K Public Safety Act 1978

2) The Armed Forces Special Powers Act 1972

The status of the state of J&K has been politically controversial for

decades. Since 1989, there has been a turbulent political movement in

the Kashmir Valley for self-determination and independence, alongside

a conflict between state forces and armed separatist groups, in which

both sides have committed acts of violence against civilians. In this

context, the state police and security forces are permitted to use broad

powers under laws such as the PSA of 1978 and AFSPA to maintain

“public order” or the “security of the state”. These two acts have

repeatedly misled the police to arbitrarily arrest and incarcerate so-

called “suspects” of terrorism under grossly vague parameters without

a proper judicial process.

According to the Ministry of Home Affair's most recent 2011 Annual

Report, citizens in Jammu and Kashmir filed 211 reports of human

rights violations against army and central paramilitary personnel.

Authorities investigated 208 cases, found 161 false, and judged 47

genuine. The military imposed penalties in the cases that were found to

be genuine. The MHA also reported 65,827 cases were registered with

the National Human Rights Commission (NHRC). A total of 62,551

cases were resolved, including cases brought forward from previous

years, and 5,673 cases were transferred to state human rights

commissions for resolution. Interim relief payments were made in 269

cases.

THE UN IN KASHMIR

Recent visits by UN Special Procedures have emphasized the human

rights concerns associated with the PSA in J&K. In 2011, Margaret

Sekaggya, the UN Special Rapporteur on the situation of human rights

defenders, conducted a fact-finding mission to India. After visiting

Srinagar, she noted the “arbitrary application of security laws at the

national and state levels,” and specifically urged state authorities to

repeal the PSA.13 Later, in September 2011, the Indian Government

extended an open invitation to all Special Procedures of the UN.

Following this, in March 2012, ChristofHeyns, the UN Special

Rapporteur on extrajudicial, summary or arbitrary executions, visited

India. On visiting Srinagar, he recommended the immediate repeal of

laws providing for immunity from prosecution of the police and the

armed forces. This recommendation is relevant to section 22 of the

PSA, which provides for such impunity from prosecutions.

In April 2012, the J&K Government amended the PSA through the

Jammu and Kashmir Public Safety (Amendment) Act, 2012. Notably,

the amendments provided that persons below the age of 18 should not

be detained under the PSA.

So the questions that the Kashmir scenario present before

us, dauntingly as ever before, are: -

1) Are judicially regressive and politically draconian laws like

the PSA and AFSPA really required, in pragmatic terms, in

the present-day context, even in highly disturbed regions,

just in order to quell the civil disharmony?

2) More fundamentally, are these laws the sole reason behind

the increasing cases of arbitrary detentions in India, or is

there any other causal factor?

3) Do such rigorous national laws contradict a country‟s

position in an international body like the United Nations,

and its obligations under customary international law to

uphold the basic human rights of all its citizens?

4) Is India, as a ratified member of the ICCPR and a signatory

to the UDHR, along with being a responsible member of the

UN Human Rights Council doing enough to protect the

rights of all sections of its society?

5) What are the various tiers in the security and judicial

apparatus that might play a role in the growing number of

arbitrary detentions? Is the Union Government in a direct

nexus with these cases of forced arrests?

FIGHTING TERROR THROUGH TERROR?: “Terrorists”: Tagged

and Detained

As the 2012 Annual Report by Amnesty International on India states,

more than 50 people were detained without charge, for periods of one

week to a month, in connection with bomb attacks in Mumbai and

Delhi. Security legislation, tightened after the November 2008 attacks

in Mumbai, was used to detain suspects. However, investigations and

trial proceedings relating to a majority of past cases of terror attacks

made little progress. As alleged by several international human rights

organizations, the security forces in India, have time and again

responded to these horrific attacks by committing numerous, serious

human rights violations in their quest to identify and prosecute

suspected perpetrators. These abuses are both unlawful under Indian

and international law and counterproductive in the fight against

terrorism.

The Indian security forces began to detain several “suspects” of

terrorism, particularly after the 1993 Serial Bomb Attacks in Mumbai

and later the 26/11 attacks in 2008, and the judicial apparatus provided

the legal backing by consolidating a host of rigorous, blanket laws in

the likes of the UAPA and the POTA. Most of these acts were either

repealed or allowed to lapse in due course of time after they came

under wide criticism. But, the Indian case presents an absurd policing

scenario, in which several persons were arbitrarily detained by the

security forces based on void and non-existent acts, and kept them

under judicial custody for more than even five or six years. In most

cases, the state high courts deemed the detentions to be illegal and

extrajudicial. However, the release of several of the detainees remained

pending for a very long and unacceptable time period.

“While the majority of individuals who were questioned in connection

with the 2008 bombings were released within a day or two, police

wrongfully detained scores of others in violation of their due process

rights under Indian and international law. Suspects were not brought

before a magistrate within 24 hours of arrest as required by Indian law,

and held for up to a month before the authorities either released them or

formally acknowledged their arrest. Police in some cases delayed

suspects‟ access to relatives and lawyers, and held them

incommunicado in undisclosed locations. The failure of the authorities

to disclose the fate or whereabouts of someone in custody is considered

an enforced disappearance in violation of international law.”

-Excerpt from The “Anti-Nationals”, published by Human Rights

Watch in 2011.

“The men said they were from Crime Branch and pushed my husband

aside to enter the house. Two days later, we were allowed to meet my

son. My son was crying and we were crying. We asked the police what

was going on. The policeman said, “Don‟t worry. We will release him

soon.” We waited and waited, but they did not let him go.”

-Sanjeed Begum Abdul Alim, mother of Gyasuddin Abdul Salim Ansari,

who was arbitrarily arrested on August 9, 2008 in Ahmedabad.

THE NAXALITE MOVEMENT

The Naxalite movement began in 1967 when a Maoist group in West

Bengal state split from the Communist Party of India (Marxist) over

ideological differences. The party adopted the strategy of working

through parliamentary and legal structures for reform, whereas the

Maoist groups believed that only armed struggle would succeed. The

Maoists led a series of peasant uprisings in an area of West Bengal

called Naxalbari, and the Maoist cadre came to be known as Naxals or

Naxalites. The government has deployed thousands of federal

paramilitary police, such as the Central Reserve Police Force (CRPF)

and the Border Security Force (BSF), to support state police forces in

its relentless efforts to root out the Naxalite movement from its very

roots. It has resisted calls to deploy the army, although the army has

provided training in guerrilla warfare to these forces. In 2008 the

government created the Commando Battalions for Resolute Action

(COBRA). COBRA consists of 10 battalions (approximately 10,000

troops) of Special Forces trained and equipped for counterinsurgency

and jungle-warfare operations. It operates as part of the CRPF.

The SalwaJudum (a civilian vigilante group created by the

government) and Special Police Officers (SPOs, created by the virtue

of the Police Act of 1861) were responsible for serious human rights

abuses. Security forces often joined SalwaJudum members on village

raids, which were designed to identify, suspected Maoist sympathizers

and evacuate residents from villages believed to be providing support

to them.

The following is an extract from the 2012 Human Rights Watch Report

titled “Between Two Sets of Guns”: Attacks on Civil Society Activists

in India‟s Maoist Conflict:-

“SalwaJudum and SPOs engaged in threats, beatings, arbitrary arrests

and detention, killings, and burning of villages to force residents into

supporting SalwaJudum and relocating to government camps. They

also coerced camp residents, including children, to join in

SalwaJudum's activities, beating and imposing penalties on those who

refused. Tens of thousands of villagers were displaced and forced to

move into government shelters. Others escaped into the forests in

neighboring Andhra Pradesh state.”

“In July 2011 the Supreme Court in a public interest lawsuit ordered

the disbanding of the SalwaJudum on the grounds that it was

unconstitutional.24 It ordered the government to “immediately cease

and desist from using SPOs in any manner or form in any activities,

directly or indirectly, aimed at controlling, countering, mitigating or

otherwise eliminating Maoist/Naxalite activities.”

“Villagers are caught between Maoists and the security forces, both of

whom demand loyalty and information.33 Both claim to be acting to

protect the local population, but both often take harsh measures against

villagers as retribution for what they see as villager support for the

other side or inadequate support for their side.”

Government statistics (as reported by HRW):-

In its submission for the Universal Periodic Review (UPR) at the UN

Human Rights Council, the government said that Maoists killed 464

civilians and 142 security forces in 2011, and most of the victims

belonged “to poor and marginalized sections of society.”34 According

to data compiled by the Institute for Conflict Management, nearly

1,200 people, half of them civilians, were killed in 2010, while around

1,000, including 391 civilians, were killed in 2009.35 According to the

Ministry of Home Affairs, over 3,000 people have been killed in the

conflict since 2008.

THE LAWS IN QUESTION:

1) The Unlawful Activities Prevention Act (UAPA):Gives

authorities the ability to detain persons without charge in cases

where insurgency or terrorism is suspected. Under the law

police can detain an individual without charge for up to 30

days. The law also permits authorities to hold a detainee in

judicial custody without charge for up to 180 days (including

the 30 days in police custody). The UAPA also denies bail for

foreigners and makes it easier for courts to deny bail in the case

of detained citizens. It presumes the accused to be guilty if the

prosecution can produce certain incriminating evidence against

the accused, such as the possession of arms or explosives or the

presence of fingerprints at the crime scene, regardless of

whether criminal intent exists.

Alleged Naxalite sympathizer Arun Ferreira was arrested under

UAPA in 2007, acquitted in 2009 on one of the cases, released

on September 27, but immediately rearrested on other charges.

2) Prevention of Terrorism Act (POTA): Though repealed in

2004, the police in cohesion with State governments continued

to detain persons on the basis of the infamous POTA. At the

end of 2010, 85 Muslims detained in the 2002 Godhra train-

burning case remained in jail in Gujarat under POTA, despite a

2005 POTA review committee ruling that POTA did not apply

to them, a 2008 ruling by the Supreme Court granting their

release, and a Gujarat high court ruling in 2009 that POTA

charges did not apply to the accused and that they should be

granted bail. Of the original 134 persons accused, 104 were

charged formally. Of the 104, five died of natural causes, and

14 were released on bail. The trial in Gujarat concluded in

2010, but the judgment was not immediately released pending

the Supreme Court's authorization to the special court to

announce the verdict.

The National Security Act (NSA) allows police to detain persons

considered security risks anywhere in the country, except Jammu and

Kashmir, without charge or trial for as long as one year. The law

stipulates that family members and lawyers can visit NSA detainees

and that authorities must inform a detainee of the grounds for detention

within five days (10 to 15 days in exceptional circumstances). In

practice these rights sometimes were not enforced.

QUESTIONS TO BE ANSWERED:

1) What exactly lead(s) up to the security forces arresting people

on the basis on acts, which are null and void?

2) What are the various legal aspects of pre-trial detentions,

which are in cohesion with the international standards to

prevent arbitrary detentions?

3) What are “preventive arrests”, and on what cases can the

police apply them without violating human rights? (Consider

the recent case of preventive arrest of political activist Anna

Hazare and his aides.)

4) Is there a dire need to revise the current judicial setup of

nations, which have shown tendencies to digress from the

mandatory international standards of the human rights regime?

POSSIBLE CAUSAL FACTORS TO THE PROBLEM:

1) Overburdened and ill-managed judiciary and appellate

system.

2) Overlap in jurisdiction of civil and military courts.

3) Ill-informed and loose security apparatus, unaware of the

status quo of the acts in order.

4) Lack of “fast-track courts”, which might otherwise reduce

the burden on the judiciary.

5) Sustenance of draconian and counterproductive anti-

Terrorism laws, and the lack of their periodic review.

CASE STUDY #2: IRAN

The Islamic Republic of Iran has been pulled into the human rights

spotlight over the last two decades by a host of international human

rights organizations on allegations of arbitrary detention, deprivation of

the fundamental rights and incessant harassment of various socio-

political groups, most prominently Human Rights Defenders (HRDs)

and lawyers. Most of these human rights activists were alleged to be

detained on frivolous and grossly arbitrary grounds- the commonplace

basis being delivering “instigative” public discourses and mass

mobilization against actions of the government. Several amongst the

detained were labeled as elements of hideous machinery or active

functionaries of a “propaganda against the system”. Furthermore, the

conditions of detention, along with the mandatory legal follow-ups

have also been majorly condemned and questioned by international

human rights activists.

RECENT CASES:

-The following have been published by the International Federation for

Human Rights under the aegis of the UNHCR and Refworld:-

(International Federation for Human Rights, Iran: Arbitrary detention

and judicial harassment of human rights defenders continue, 16

September 2011, available at:

http://www.unhcr.org/refworld/docid/4e846aed1a.html [accessed 16

December 2012])

• On September 14, 2011, Ms. Nasrin Sotoudeh, a prominent

human rights lawyer known for defending juveniles facing death

penalty, prisoners of conscience, human rights activists and children

victims of abuse, was sentenced by Branch 54 of the Appeals Court to

six years of imprisonment and a 10-year ban on practicing as lawyer.

Thus, the Appeals Court slightly reduced Branch 26 of the Islamic

Revolution Court's sentence of 11 years' imprisonment, 20 years' ban

on practicing law and 20 years' ban on travelling abroad on charges of

"propaganda against the State", "collusion and gathering with the aim

of acting against national security" and "membership of the Defenders

of Human Rights Centre (DHRC)". The accusations against Ms.

Sotoudeh were based mainly on interviews with foreign media about

her clients who were jailed after Iran's disputed June 2009 presidential

election. As of today, she remains arbitrarily detained in Section 350 of

Evin prison.

• On September 11, 2011, Mr. Farshid Yadollahi, a lawyer and

member of the Human Rights Commission of the Bar Association, who

has been involved in the defense of Gonabadi Dervishes, was arrested.

At the time of writing, his family had no news about him. According to

his wife, she and her husband were guests at a friend's house, where the

security agents attacked. They broke the door, beat up Mr. Yadollahi

and handcuffed him. Then, they took laptops, ID cards, mobile phones,

computers and books from the host's house. This arrest follows the

sentencing on January 23, 2011 of Mr. FarshidYadollahi, as well as

another lawyer, Mr. Amir Eslami, also a member of the Human Rights

Commission of the Iranian Bar Association and a lawyer of Gonabadi

Dervishes, to six months of imprisonment by the Court of First Instance

of Kish Island, on charges of "forging title of lawyer", "acting against

national security", "publishing lies" and "disturbing public minds".

• In addition, other human rights defenders have continued to

suffer harassment, notably women human rights defenders. Ms.

Somayyeh Tohidloo, a blogger and PhD student of sociology who had

been arrested on June 14, 2009 and spent 70 days in detention before

being released on bail, in punishment for her campaign in favour of the

right to vote, was lashed 50 times in Evin prison on September 14.

Following her arrest in 2009, she had been sentenced to one-year

imprisonment, 50 lashes and fine for allegedly insulting Mr.

Ahmadinejad in her blog. However, her prison sentence was dropped.

• On September 3, 2011, Ms. Faranak Farid, a member of the

One Million Signatures Campaign, was arrested while shopping. Her

arrest would be linked to demonstrations that took place on the same

day over the drying of Lake Oroumieh, calling on the Iranian

authorities to remove dams on rivers feeding the lake. She was

reportedly beaten during her arrest. As of today, she remains detained

in Tabriz central prison. It is not known whether charges were brought

against her.

• Finally, on September 15, Ms. Maryam Bahreman, a civil

society activist involved in the defence of women's rights, notably as a

member of the One Million Signatures Campaign in Shiraz, was

released on bail after four months of detention including 55 days in

solitary confinement. Yet, she is still facing the charge of "acting

against national security".

CASE STUDY #3: MYANMAR

Myanmar (formerly known as Burma) came into the human rights

spotlight with the infamous arrest of Aung San SuuKyi, the charismatic

opposition leader. As several reports inferred, Kyi‟s arrest was without

any legitimate charge and on grossly arbitrary grounds. DawAung San

SuuKyi, General Secretary of the political party National League for

Democracy (NLD) and a Nobel Peace Prize laureate, was arrested on

31 May 2003 at Yawayoo, in northern Myanmar, following grave

incidents near Depayin, Sagaing division. The Working Group on

Arbitrary Detentions reacted to the arrest by demanding a detailed

justification. According to the Government‟s reply, DawAung San

SuuKyi had not been arrested, but has only been taken into protective

custody, for her own safety. The Working Group already published two

opinions, in which it declared the detention of DawAung San SuuKyi

to be arbitrary. DawAung San SuuKyi continued to be deprived of her

liberty without charges or a trial, and to be subject to restrictions of all

kinds in her communications and visits, which are permitted at the

Government‟s discretion. She was however released on 13 November,

2010.

Recently, the newly instated government of Myanmar took a host of

pledges to ameliorate the human rights situation in the country, which

includes reassessing prisoner lists to check for discrepancies. Mr. Ojea

Quintana, an independent UN expert called the latest commitments a

significant step forward in the country‟s ongoing democratic reform

process, led by President Thein Sein. “I now encourage the

Government to work with all stakeholders, including the international

community, in working out the necessary details and ensuring that they

are properly implemented,” he added.

CASE STUDY #4: CUBA

Cuba has consistently remained under the watchful radar of UN and

several Human Rights organizations since the pasts few decades

because of the highly restrictive, regressive and regulated socio-

political environment in the country. Right from the days of Fidel

Castro to his brother Raul, Cuban citizens have reeled under the

severely draconian and punitive policies of the government. Its

intolerance for its dissenters and critiques have led to massive

violations in the most fundamental of rights that Cuban citizens are

otherwise entitled to enjoy by virtue of its Constitution and even

International Law. Furthermore, Cuba has consistently refused to allow

prominent human rights organizations like Amnesty International to

even enter to country so as to publish first-hand reports.

As the Amnesty International Annual Report on Cuba 2012 states, the

Cuban authorities continued to stifle freedom of expression, association

and assembly, in spite of the much-publicized releases of prominent

dissidents. Hundreds of pro-democracy activists and dissidents suffered

harassment, intimidation and arbitrary arrest.

• Alan Gross, a US citizen arrested in December 2009 for

distributing telecommunications material in Cuba, was sentenced by a

Cuban tribunal to 15 years in prison for crimes against the security of

the state. US officials and personalities attempted to secure his release

on humanitarian grounds but were unsuccessful. In February, the

authorities detained more than 100 people in a single day and placed

over 50 people under house arrest in a pre-emptive strike designed to

stop activists marking the death of activist Orlando Zapata Tamayo,

who died in 2010 following a prolonged hunger strike while in

detention.

• Reina Luisa Tamayo, Orlando Zapata's mother; her husband,

José Ortiz; and Daniel Mesa, a human rights activist, were arrested on

22 February by about 15 state security agents as they left their home in

Banes, Holguín province. The arrests were intended to prevent them

from undertaking any activities in memory of Orlando Zapata on the

first anniversary of his death on 23 February. All three were released

12 hours later. In June, Reina Luisa Tamayo went into exile in the USA

with her family.

In March, the Cuban authorities completed the release of the prisoners

of conscience detained during the March 2003 crackdown, as well as

political prisoners, some of whom had been imprisoned since the

1990s. The release of the last 52 prisoners of conscience started in July

2010 following an agreement with the Spanish government and

dialogue with the Catholic Church. Most of the former prisoners and

their relatives were forced into exile and only a few were allowed to

remain in Cuba.

Since the end of the 1990s, Cuba Archive has been confronting the vast

Cuban propaganda machine by focusing on its bloody trails. It has

created a comprehensive registry of deaths that makes it harder to

ignore the worst crimes of the Cuban regime as well as the magnitude

and present-day character of the tragedy.

Up to December 15, 2008, 5,732 cases of execution, extrajudicial

killings, and disappearances have been documented. In addition, 515

deaths in prison for medical negligence, suicide, or accident have been

recorded. These totals, which constitute partial yet growing numbers,

already amount to more than twice the 3,197 disappearances and

killings by the military regime led by General Augusto Pinochet in

Chile. Yet while Pinochet was subject to solid worldwide

condemnation, Fidel Castro has been lauded by many celebrities and

influential global figures. In 2008 alone, 42 deaths have been

registered, all in prison except one – 2 extrajudicial killings, 23 for lack

of medical care, 11 reported suicides, 2 in accidents resulting from

negligence, plus 1 death for undetermined causes. Between January 1,

1959 and December 15, 2008, a partial tally of deaths attributed to the

Castro regime totals 8,237 documented cases, if combat actions against

the communist government are included.

One of the most astounding aspects of this tragedy is the killing by

Cuban authorities of civilians trying to flee the island. An initial effort

to record these cases has uncovered almost 200 victims. This sum

compares to the 227 victims killed in Berlin Wall crossings during

Communist period in East Germany.

The cost of the long and dark chapter of Cuban history written by the

Castro brothers is enormous. Its macabre tally of extrajudicial killings

includes dozens of children as well as women. And the slaughter

extends to other nationalities. To date, 68 foreigners are among

documented victims of execution, extrajudicial killing, or

disappearance by the Cuban government.

CASE STUDY #5: RUSSIA

Russia has been heavily condemned by human rights organizations for

its judicial setup and particularly, the degrading conditions of detention

facilities. Most critically, detentions made in the conflict-ridden region

of Chechnya have attracted the attention of many. Torture, physical

abuse, arbitrary arrest, "disappearances," summary executions, rape,

and the failure to accord procedural rights to persons in detention and at

trial violate international human rights norms binding upon Russia, in

particular those codified in the International Covenant on Civil and

Political Rights (ICCPR) and the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (Convention

Against Torture). Russia is also a party to the European Convention on

Human Rights (ECHR), and subject to the jurisdiction of the European

Court of Human Rights, the body which enforces the ECHR.

The provisions of international humanitarian law, also known as the

laws of war, which came into play with the renewed outbreak of armed

conflict in Chechnya, bar much of the same conduct, an essential

difference being the combatant's "privilege" to take part in hostilities,

including acting to kill or harm opposing combatants. Russia is party to

the four Geneva Conventions of 1949 and their two Protocols. The

fighting in Chechnya unquestionably has been intense enough to

qualify as "armed conflict," making applicable the laws of war. The

armed conflict is of a "non-international" character and thus governed

by Article 3 common to the four Geneva Conventions of 1949 and

Protocol II.Russia has not declared a state of emergency in Chechnya,

and thus Russia's domestic legal obligations, including the

constitutional rights of citizens, remain in full force in the war-torn

republic. Russia remains obligated to fully adhere to these rights

without derogation.

Torture and physical abuse are punishable crimes under the Russian

legal code, although the legal definition of torture in Russian law does

not cover the full scope of the definition contained in the Convention

against Torture. Article 21 of the Russian constitution states in relevant

part that "[no] one may be subjected to torture, violence or other

treatment or punishment that is cruel or degrading to the human

dignity." Article 111 of Russia's criminal code sets penalties of two to

fifteen years of imprisonment for the infliction of serious bodily injury,

but does not specifically address persons acting in an official

capacity.During January and early February 2000, the remand prison at

Chernokozovo, about sixty kilometers northwest of Grozny, was the

principal destination for those detained in Chechnya. It quickly became

infamous for savage torture of detainees. Forms of torture included

prolonged beatings, beatings to the genitals and to the soles of the feet,

rape, electric shocks, tear gas, and other methods. Guards also

subjected detainees to profound humiliation and degrading treatment.

At least one person was beaten to death. Often prison guards and other

law enforcement officers would use torture to coerce confessions or

testimony; just as often, however, it had no apparent purpose. Soon, an

international whistleblowing of the detention facility immediately led

to a long series of denials from Russian authorities. Presidential press

secretary Sergei Yasterzhembsky refuted claims of torture in

Chernokozovo; four days later he told reporters that they were

"misinforming the public" by reporting the abuse. The Ministry of

Justice issued a press release stating that "cases of violence,

harassment, torture, and even shootings of persons kept in the

investigation ward located in the residential area of Chernokozovo…do

not correspond to the [sic] reality and grossly distort the real state of

affairs. Several other facilities like Mozdok, Khalkal, etc. have also

face severe criticism for gruesome and oppressive incarcerative

conditions.

A separate HRW report stated the following:

“Russian authorities withhold information about whom they have in

custody, and do not allow detainees to communicate with their families

or others, even those held for many months. After large-scale arrests

began in February 2000, Human Rights Watch researchers in

Ingushetia were constantly contacted by anxious individuals desperate

for assistance in learning the fate of their relatives whom Russian

authorities had detained. Informal lists of detainees rumored to be in

different facilities circulate but are not a source of reliable information.

Relatives sometimes learned the whereabouts of their loved ones by

paying bribes. Many maintain a steady vigil outside the detention

centers where they believe their relatives may be detained.”

RECENT CASES:

-The following have been published by the International Federation for

Human Rights under the aegis of the UNHCR and Refworld:-

(International Federation for Human Rights, Iran: Arbitrary detention

and judicial harassment of human rights defenders continue, 16

September 2011, available at:

http://www.unhcr.org/refworld/docid/4e846aed1a.html [accessed 16

December 2012])

On September 14, 2011, Ms. Nasrin Sotoudeh, a prominent

human rights lawyer known for defending juveniles facing

death penalty, prisoners of conscience, human rights activists

and children victims of abuse, was sentenced by Branch 54 of

the Appeals Court to six years of imprisonment and a 10-year

ban on practicing as lawyer. Thus, the Appeals Court slightly

reduced Branch 26 of the Islamic Revolution Court's sentence

of 11 years' imprisonment, 20 years' ban on practicing law and

20 years' ban on travelling abroad on charges of "propaganda

against the State", "collusion and gathering with the aim of

acting against national security" and "membership of the

Defenders of Human Rights Centre (DHRC)". The accusations

against Ms. Sotoudeh were based mainly on interviews with

foreign media about her clients who were jailed after Iran's

disputed June 2009 presidential election. As of today, she

remains arbitrarily detained in Section 350 of Evin prison.

On September 11, 2011, Mr. Farshid Yadollahi, a lawyer and

member of the Human Rights Commission of the Bar

Association, who has been involved in the defense of Gonabadi

Dervishes, was arrested. At the time of writing, his family had

no news about him. According to his wife, she and her husband

were guests at a friend's house, where the security agents

attacked. They broke the door, beat up Mr. Yadollahi and

handcuffed him. Then, they took laptops, ID cards, mobile

phones, computers and books from the host's house. This arrest

follows the sentencing on January 23, 2011 of Mr.

FarshidYadollahi, as well as another lawyer, Mr. Amir Eslami,

also a member of the Human Rights Commission of the Iranian

Bar Association and a lawyer of Gonabadi Dervishes, to six

months of imprisonment by the Court of First Instance of Kish

Island, on charges of "forging title of lawyer", "acting against

national security", "publishing lies" and "disturbing public

minds".

In addition, other human rights defenders have continued to

suffer harassment, notably women human rights defenders.

Ms. Somayyeh Tohidloo, a blogger and PhD student of

sociology who had been arrested on June 14, 2009 and spent 70

days in detention before being released on bail, in punishment

for her campaign in favour of the right to vote, was lashed 50

times in Evin prison on September 14. Following her arrest in

2009, she had been sentenced to one-year imprisonment, 50

lashes and fine for allegedly insulting Mr. Ahmadinejad in her

blog. However, her prison sentence was dropped.

On September 3, 2011, Ms. Faranak Farid, a member of the

One Million Signatures Campaign, was arrested while

shopping. Her arrest would be linked to demonstrations that

took place on the same day over the drying of Lake Oroumieh,

calling on the Iranian authorities to remove dams on rivers

feeding the lake. She was reportedly beaten during her arrest.

As of today, she remains detained in Tabriz central prison. It is

not known whether charges were brought against her.

Finally, on September 15, Ms. Maryam Bahreman, a civil

society activist involved in the defence of women's rights,

notably as a member of the One Million Signatures Campaign

in Shiraz, was released on bail after four months of detention

including 55 days in solitary confinement. Yet, she is still

facing the charge of "acting against national security".

Case study III : CUBA

Since the end of the 1990s, Cuba Archive has been confronting the

vast Cuban propaganda machine by focusing on its bloody trails. It

has created a comprehensive registry of deaths that makes it harder

to ignore the worst crimes of the Cuban regime as well as the

magnitude and present-day character of the tragedy.

Up to December 15, 2008, 5,732 cases of execution, extrajudicial

killings, and disappearances have been documented. In addition,

515 deaths in prison for medical negligence, suicide, or accident

have been recorded. These totals, which constitute partial yet

growing numbers, already amount to more than twice the 3,197

disappearances and killings by the military regime led by General

Augusto Pinochet in Chile. Yet while Pinochet was subject to solid

worldwide condemnation, Fidel Castro has been lauded by many

celebrities and influential global figures. In 2008 alone, 42 deaths

have been registered, all in prison except one – 2 extrajudicial

killings, 23 for lack of medical care, 11 reported suicides, 2 in

accidents resulting from negligence, plus 1 death for undetermined

causes. Between January 1, 1959 and December 15, 2008, a partial

tally of deaths attributed to the Castro regime totals 8,237

documented cases, if combat actions against the communist

government are included.

One of the most astounding aspects of this tragedy is the killing by

Cuban authorities of civilians trying to flee the island. An initial

effort to record these cases has uncovered almost 200 victims. This

sum compares to the 227 victims killed in Berlin Wall crossings

during Communist period in East Germany.

The cost of the long and dark chapter of Cuban history written by

the Castro brothers is enormous. Its macabre tally of extrajudicial

killings includes dozens of children as well as women. And the

slaughter extends to other nationalities. To date, 68 foreigners are

among documented victims of execution, extrajudicial killing, or

disappearance by the Cuban government.

International Response to the problem and Questions to

Consider

Special Rapporteur On Extrajudicial, Summary

Or Arbitrary Executions

The subject of summary or arbitrary executions had been discussed in

the United Nations for many years within the framework of a wider

discussion on human rights. The Sub-Commission on Prevention of

Discrimination and Protection of Minorities had for a long time

reported on this subject under the item entitled "Disappearances and

summary executions". Over the years, the Sub-Commission's reports

revealed increasing instances of alleged summary executions. The

Commission on Human Rights, in its resolution 20 (XXXVI), of 29

February 1980, established the Working Group on Enforced or

Involuntary Disappearances. The creation of that Group, in addition to

other developments, led to the establishment of the mandate on

summary and arbitrary executions.

The Commission on Human Rights, by its resolution 1982/29 of 11

March 1982, recommended that the Economic and Social Council

request the Chairman of the Commission to appoint an individual of

recognized international standing as special rapporteur to submit a

comprehensive report to the Commission at its thirty-ninth session on

the occurrence and extent of the practice of summary or arbitrary

executions, together with his conclusions and recommendations. This

resolution was subsequently adopted by the Economic and Social

Council as resolution 1982/35 and established the mandate of the

Special Rapporteur. The Commission on Human Rights, in its

resolution 1992/72, renewed the mandate of the Special Rapporteur and

widened the title of the mandate to include "extrajudicial" as well as

"summary or arbitrary" executions. This change indicates that the

members of the Commission have adopted a broader approach to the

mandate on executions to include all violations of the right to life as

guaranteed by a large number of international human rights

instruments.

The mandate of the Special Rapporteur covers all countries,

irrespective of whether a State has ratified relevant International

Conventions.

The Human Rights Council, in its resolution 8/3, requested the Special

Rapporteur, in carrying out his mandate:

(a) To continue to examine situations of extrajudicial, summary or

arbitrary executions in all circumstances and for whatever reason, and

to submit his or her findings on an annual basis, together with

conclusions and recommendations, to the Council and the General

Assembly, and to draw the attention of the Council to serious situations

of extrajudicial, summary or arbitrary executions that warrant

immediate attention or where early action might prevent further

deterioration;

(b) To continue to draw the attention of the High Commissioner for

Human Rights to serious situations of extrajudicial, summary or

arbitrary executions that warrant immediate attention or where early

action might prevent further deterioration;

(c) To respond effectively to information which comes before him or

her, in particular when an extrajudicial, summary or arbitrary execution

is imminent or threatened or when such an execution has occurred;

(d) To enhance further his or her dialogue with Governments, as well

as to follow up on recommendations made in reports after visits to

particular countries;

(e) To continue monitoring the implementation of existing international

standards on safeguards and restrictions relating to the imposition of

capital punishment, bearing in mind the comments made by the Human

Rights Committee in its interpretation of article 6 of the International

Covenant on Civil and Political Rights, as well as the Second Optional

Protocol thereto;

(f) To apply a gender perspective in his or her work.

In carrying out his/her mandate, the Special Rapporteur:

a) Transmits urgent appeals to States in cases that evince a fear of

imminent extrajudicial, summary or arbitrary executions and

transmitting alleged cases of extrajudicial, summary or arbitrary

executions to concerned Governments in the form of case summaries

(see Individual Complaints);

b) Undertakes fact-finding country visits;

c) Submits annual reports on activities the mandate and methods of

work to the Commission and the General Assembly.

Working Group On Arbitrary Detention

The Working Group on Arbitrary Detention was established by

resolution 1991/42 of the former Commission on Human Rights. Its

mandate was clarified and extended by Commission‟s resolution

1997/50. The mandate was extended for a further three-year period by

resolution 15/18 of 30 September 2010.

(a) To investigate cases of deprivation of liberty imposed arbitrarily or

otherwise inconsistently with the relevant international standards set

forth in the Universal Declaration of Human Rights or in the relevant

international legal instruments accepted by the States concerned;

(b) To seek and receive information from Governments and

intergovernmental and non-governmental organizations, and receive

information from the individuals concerned, their families or their

representatives;

(c) To act on information submitted to its attention regarding alleged

cases of arbitrary detention by sending urgent appeals and

communications to concerned Governments to clarify and to bring to

their attention these cases;

(d) To conduct field missions upon the invitation of Government, in

order to understand better the situations prevailing in countries, as well

as the underlying reasons for instances of arbitrary deprivation of

liberty;

(e) To formulate deliberations on issues of a general nature in order to

assist States to prevent and guard against the practice of arbitrary

deprivation of liberty and to facilitate consideration of future cases;

(f) To present an annual report to the Human Rights Council presenting

its activities, findings, conclusions and recommendations.

Furthermore, the Human Rights Council encourages the Working

Group in fulfilling its mandate:

(a) To work in cooperation and dialogue with all those concerned by

the cases submitted to it, and in particular with States that provide

information which should be given due consideration;

(b) To work in coordination with other mechanisms of the Human

Rights Council, with other competent United Nations bodies and with

treaty bodies, bearing in mind the role of the Office of the United

Nations High Commissioner for Human Rights in such coordination,

and to take all necessary measures to avoid duplication with those

mechanisms, in particular regarding the treatment of the

communications it receives and field missions;

(c) To carry out its task with discretion, objectivity and independence.

Amnesty International

In December 2006, the UN adopted the International Convention for

the Protection of All Persons from Enforced Disappearance. The

convention aims to prevent enforced disappearances taking place,

uncover the truth when they do occur, punish the perpetrators and

provide reparations to the victims and their families.This is considered

to be one of strongest human rights treaties ever adopted by the UN.

Some of its provisions appear for the first time and introduce important

new standards. Amnesty International is joining other members of the

International Coalition against Enforced Disappearances to call on all

states to ratify the new convention. For the convention to be effective,

governments must introduce legislation to implement it.

Also Amnesty International has campaigned to demand that the USA

and all states reveal the whereabouts and fate of disappeared persons,

and if they are not to be released that they are charged with a

recognizably criminal offence and given a fair trial in accordance with

international standards. Campaigning for the release of individual

prisoners of conscience around the world has been a longstanding

activity for Amnesty International. Our activities on behalf of

prisoners of conscience have led to the release of many prisoners

throughout the years. Amnesty International takes action, often through

its Urgent Action network, for prisoners and detainees whose lives or

health are at risk from harsh prison conditions that amount to cruel,

inhuman or degrading treatment or punishment.

Amnesty International calls for:

all prisoners of conscience to be set free without conditions

fair trials within a reasonable time or release for all political

prisoners

all prisoners to be brought before an independent judicial

authority

all prisoners to have access to relatives, doctors and lawyers

conditions of detention to follow international human rights

standards

an end to long-term confinement in conditions of isolation

a prohibition on solitary confinement for imprisoned children

prompt and independent investigations into deaths in custody

safeguards against human rights violations in detention

Conclusion

Do not forget to read beyond the given information. This is

significantly insufficient for any research. The idea is to ask the

important questions during the conference, while looking for answers

in the information given out to you.

Whether Arbitrary Detentions upto an extent are required by the

State Apparatus to protect its sovereignty and ensure national

security

Whether the international community should take responsibility

in digging out prolonged and unfortunate cases of both, thereby

undermining the sovereign right of the ruling authority

Whether conflict areas need a mechanism that specially attends

to occurrences during turmoil and accounting for every

violation in post-conflict regimes

Whether the procedure after the State is held accountable for

either of these, be reformed to greater effect

These are the minimal of questions one needs an answer to. Dig out

several more to make the conference more interesting.

Useful links would include reports by aforesaid international

organizations or working groups, or independent experts mandated by

the UN. Besides that you could also look up reports by Amnesty

International, Al-Jazeera, Human Rights Watch and International

Commission of Jurists.