Today, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, concluded an official visit to the United States. During the visit, he looked at a range of issues, including the use of the death penalty and the operation of the military justice system. The press release and statement follow:

Press Release on the United States (New York, 30 June 2008)

Press Statement on the United States (New York, 30 June 2008)

The Special Rapporteur also recently concluded an official visit to Afghanistan during which he looked at the conduct of international forces in that country. He issued a press release and and statement on that visit in Kabul on 15 May 2008.

At the 8th session of the Human Rights Council in Geneva, the Government of the Philippines responded to the final report of the UN Special Rapporteur on his mission to the Philippines. The oral statement was delivered by Ambassador Erlinda F Basilio, and is available here.

The Philippine NGO delegation (”Philippine UPR Watch”) to the 8th Session of the Human Rights Council responded to both the Special Rapporteur’s report, and the statement by the Government of the Philippines. Their press statement is available here.

Today, Wednesday 4 June 2008, Reuters published the following article on the Special Rapporteur’s upcoming mission to the United States (16-26 June 2008):

UN envoy to raise Afghan, Iraqi killings with US
By Stephanie Nebehay

GENEVA (Reuters) – A U.N. human rights investigator making an official visit to the United States later this month said on Wednesday that he would raise allegations of American troops killing Afghan and Iraqi civilians.

Philip Alston, United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said he would also investigate whether the U.S. justice system held private military contractors accountable for any murders committed abroad.

“The big issue is the extent to which the United States is prepared to talk about anything happening overseas,” Alston told Reuters in a interview in Geneva ahead of his June 16-26 trip.

“I would like to understand more about the extent to which the American system of justice has adequately dealt with allegations of civilian killings in Iraq,” he said.

Professor Alston provoked NATO’s anger last month when he said 200 Afghan civilians had been killed by foreign and Afghan troops so far this year, in addition to around 300 by Taliban insurgents.

His report was based on a May visit to Afghanistan, where more than 55,000 foreign troops led by NATO and the U.S. military are deployed. A NATO spokesman later conceded that civilians were mistakenly killed by foreign forces while hunting Taliban militants, but put the number in “low double figures”.

“The issue of private military contractors has come up, not just (U.S. private security firm) Blackwater, which are accused of activities that might have killed people. I’ll be looking at the question of impunity — is there a legal system effectively holding them to account?” Alston said in the interview.

U.S. INVITATION

The Australian law professor at New York University is making his visit at U.S. government invitation. He will meet federal officials in Washington before visiting Alabama and Texas where prisons have large numbers of death row inmates.

He plans to examine the death penalty issue, including allegations of racial bias in U.S. courts. Human rights activists say proportionately more African-Americans and other minorities are sentenced to death than white criminals.

“There have also been allegations of deaths in immigration detention,” Alston said.

Professor Alston, in a speech presenting his annual report to the U.N. Human Rights Council earlier this week, voiced outrage at prison conditions worldwide. He called for appointment of a new U.N. envoy on the rights of detainees.

Prisoners are often “kept in conditions in which no representative in this Council would knowingly permit his or her dog to be kept”, he told the 47-member state forum.

Alston said on Wednesday that the U.N. investigator on torture, Austrian law professor Manfred Nowak, was doing an “absolutely super job” probing allegations of mistreatment of detainees, but that a broader mandate was needed.

“Torture can’t capture everything wrong in prisons. Detainees have fallen off the radar screen in their own right. We no longer give a damn about the conditions in which they are kept,” he told Reuters.

APPALLING CONDITIONS

“In most countries I’ve been to, prisoners are kept in utterly appalling conditions,” Alston said. Food was paltry and hygienic conditions often dismal in damp overcrowded cells.

Professor Alston denounced “prisons run by prisoners” which he has seen in places including Brazil and Guatemala.

“It is a common phenomenon in Latin America. Gangs (of prisoners) offer cheap labour to handle discipline and food distribution,” he said. “It is a completely arbitrary regime that puts prisoners at the mercy of other prisoners”.

Western countries had also accepted lower standards for treating their prisoners, he said, adding: “How countries treat their prisoners gives you insight into their basic humanity.”

On 2 June 2008, during the 8th Session of the United Nations Human Rights Council in Geneva, the UN Special Rapporteur on extrajudicial executions delivered this statement. His oral comments to the Council summarise the Special Rapporteur’s annual report, the communications report, follow-up reports on Sri Lanka and Nigeria, the final report on his mission to the Philippines, and preliminary notes on his missions to Brazil, the Central African Republic, and Afghanistan.

In response to the Special Rapporteur’s 14 May 2008 follow-up report on his November-December 2005 mission to Sri Lanka, the Government of Sri Lanka issued the following statement on 3 June 2008:

“Sri Lanka welcomes the continuing concern with Sri Lanka indicated in the follow up report on Sri Lanka by the Special Rapporteur. It regrets that this was issued without proper consultation with Sri Lanka, despite attempts to engage with him and to seek his advice and assistance with regard to strengthening mechanisms with regard to the problems he mentions. Sadly the Special Rapporteur did not seem willing to engage. This may have been due to suspicions that arose at the time of his initial report, which seemed to have been leaked to hostile forces which made use of it to denigrate the then government. Subsequent similar incidents have made it clear however that improper behaviour occurs much lower down in the UN system, and the Special Rapporteur himself is above reproach. Hence attempts to contact him last year, and despite delays the letter to which he refers obliquely in this follow up report, but to which he never responded. This is perhaps understandable because it begins by saying, ‘I would have complained about delays in the UN bureaucracy, but unfortunately I have had an example of even greater delay here’.


In short, those of us trying to improve the situation with regard to human rights are stymied at all turns by bureaucracies, occasionally made worse by malignancy but generally suffering only from incompetence. However in this regard I should quote the remark of the Canadian representative at the United Nations, in the recent debate on the protection of civilians, when he said ‘In Afghanistan, indiscriminate acts of violence, such as suicide bombings, were a potent reminder of why support for the Afghan Government was so important.’ Though he did not say it, he was implicitly rebuking Sir John Holmes who had, in his usual balanced fashion, said, ‘In Afghanistan and Iraq, civilians remained victims of suicide attacks as well as aerial bombardments and search operations against anti-Government elements.’ While drawing attention to ‘civilian casualties resulting from air strikes and search operations conducted by national and multinational forces, as well as the number of so-called “force protection incidents”, in which civilians were shot at after being considered a threat to military convoys or for not obeying instructions at checkpoints.


Sir John is further quoted as saying ‘he did not for one second underestimate the challenge in Afghanistan, Iraq and other contexts, of engaging an enemy whose members were difficult, if not impossible, to identify, and who saw the surrounding civilian population as a shield from attack. It was an enemy for whom the principles of distinction and proportionality appeared to have no practical meaning or application. Nevertheless, any military response must itself comply with international humanitarian law and demonstrate respect for the dignity of those already exposed to insurgent attacks.’


Sri Lanka continues to ask itself why, in our case, the challenge continues to be underestimated, why despite the FBI – and who can doubt the veracity of what the FBI says? – asserting that the Tigers are one of the most dangerous of terrorist groups, it is assumed that our record has to be perfect, while elsewhere some elements in the international community bend over backwards to suggest that support for a democratic government fighting against terrorism is important.


The Special Rapporteur, it should be stressed, seemed to understand this in his previous report, and we fully accept the point that, even in the context of fighting terrorism, we need to ensure adherence to the rule of law. It is for this reason that we have instituted measures to minimize abuses, and that we welcome further assistance to improve the situation.


With regard to the specific points made, we note the suggestions the Special Rapporteur made with regard to the monitoring functions of the Sri Lanka Monitoring Mission, and that this suffered a setback when the LTTE drove out representatives from three countries. Despite this, the Peace Secretariat and the SLMM were improving monitoring, including through local monitors whose role had been enhanced, with for the first time Tamils representing the government in three districts hitherto left to the LTTE. It should be noted that a UNHCHR office representative did not obviously agree with the Special Rapporteur’s view and thought a UN presence necessary to supplement what he saw as the relative incompetence of the SLMM, another classic example of the infighting that makes progress so difficult. With the abrogation of the Ceasefire and the departure of the SLMM, the obvious candidate to replace it as to monitoring was the National Human Rights Commission. Unfortunately the previous two years had seen a consistent campaign to run down the Commission, with the UN failing to use funding it had to appoint UN volunteers to Regional Offices. It also backed out of a Project to fund the HRC Backlog Project, which contributed to the downgrading of the Commission. In short, what we would like is concerted action to strengthen our national mechanisms, and not underhand attempts to undermine them so as to ensure an enhanced role for an international bureaucracy, which we find equally slow, at much greater cost. The Special Rapporteur had indeed been specifically asked for assistance to strengthen the Regional Offices of the National Human Rights Commission, and even though he may have felt this was outside his brief, the courtesy of a response would have been welcome.


Similarly, we appreciate his initial comments with regard to police training, and would welcome assistance to improve it. However for three years Sri Lanka endured an International Police Support Group which drank a lot of tea and produced nothing, except an excellent Swedish Project to improve investigation. The Special Rapporteur ignores this, perhaps because he did not know about it.


He is substantially right however in that, apart from a useful British project on Community Policing, the Police Support Group achieved nothing, and certainly not with regard to language training, which as he noted was eminently desirable. Sadly, perhaps because of reliance on such mechanisms, Sri Lanka also did not move sufficiently swiftly in these areas, but this has now been remedied, though certainly action could be quicker.


It is unfortunate that, though he had been informed of it, the Special Rapporteur did not note attempts to improve Tamil language training, and also improve Human Rights training for the police, including replicating the very helpful ICRC course for the army with the relevant branch of the police. Some greater credit might also have been appropriate for the first measures in years to proactively recruit Tamils to the police.


Another area with which the Special Rapporteur deals at length is the question of paramilitaries, which he had emphasized earlier in just a single recommendation. Had he engaged more actively with the government, instead of relying only on selective sources, without even it seems looking at rebuttal of some allegations he reproduces, he would have realized that the Sri Lankan government has dealt more successfully with the question of reintegrating former terrorists than any other regime dealing with terrorism in recent years. Quite simply, without engaging in confrontation that would have led to even greater suffering for the Tamil people, the government has managed to integrate those elements in the former Karuna faction who want to move towards pluralistic democracy.


The establishment of the TMVP as a political party was a great step forward, and though initially elements in the international community, harping on the past, refused to provide it with the democracy training it craved, this will be remedied in the future. Karuna choosing himself to go into exile in Britain helped in this process since he was unlikely to fit into democratic practices and, whilst some associates may still be inclined to violence, the establishment of an elected authority that includes other communities will help in the process. This will be slow, but it is preferable to confrontation, especially in the context of the LTTE continuing to disrupt, including by killing TMVP candidates. In this context it should be noted that, although when two journalists were killed in late May in Jaffna, the immediate assumption was that this was the responsibility of EPDP cadres, latest reports suggest that one of those killed was close to the EPDP leader, and the LTTE was probably responsible. This further confirms the difficulty of moving towards normalcy, which is why firm dealings with the LTTE are necessary, and why we would welcome the categorical support the Canadian ambassador extends to the Afghan government, and which certainly his government seems to be trying to provide against the LTTE now in Canada, although belatedly, after massive funding from there contributed over the years to the ordeal the Sri Lankan people are facing now.


Another area in which the Special Rapporteur seems to have been carried away by adverse propaganda is in his statements about civilian casualties. He quotes figures from an International Crisis Group publication, knowing full well that the head of the group has been trying desperately for years to have himself called in to replace the Norwegian facilitators, and has insinuated false allegations against the Sri Lankan government in the process, including references to ethnic cleansing, which on questioning he – like the Special Rapporteur – knows was ever attempted in Sri Lanka only by the LTTE.


The Special Rapporteur, in citing ICG figures, does not even seem to have looked at the government releases that contest those figures. By careful examination of what might be termed worst case statistics, namely those put out in the independent Sri Lankan press or LTTE media outlets after any incident, government has been able to show that the incidence of civilian casualties is minimal. Any of these must of course be regretted, but it is equally unfair on forces that have a much better record than any other fighting terrorism to ignore the circumspection with which they operate. For instance the Special Rapporteur talks twice about aerial bombardments, whereas in the eighteen months since hostilities restarted, civilian deaths were alleged in only five incidents out of a total of 168 air strikes, and in two of those the government was categorical that illicit broadcasting facilities were legitimate targets.


Detailed discussion of all this, what might be termed a game of atrocity snap, is not appropriate however in plenary session at the UN Human Rights Council, and therefore we would welcome an opportunity to engage actively with the Special Rapporteur. We believe it is inappropriate for a Report of this sort to be brought before the Council before the country in question has had an opportunity to respond to it, and have adjustments that can be justified incorporated into the text. We hope very much that the Council will ensure that proper procedures of that sort are followed for the future. At the same time we appreciate the general sincerity of this Special Rapporteur, as of all those who have visited Sri Lanka in recent months, and hope that bureaucratic bungles will not prevent active and productive engagement with him in the future.


Finally, his comments with regard to the International Independent Group of Eminent Persons seem to reflect assertions made elsewhere, which have been adequately dealt with in Sri Lanka’s response to questions during the Universal Periodic Review. We can only note the concluding comments of Justice Bhagwati in this regard, and the state of denial about these that engulfed one of his associates, who then claimed to pronounce on behalf of the panel as a whole. We feel the whole exercise was vitiated by the bad faith of just one or two people who were involved, and we hope that similar approaches by a limited few will not stand in the way of the improvements we seek in our polity, for which assistance and advice, if not patronizing and perverse, will always be welcome.”

In response to the 15 May 2008 Press Statement of the UN Special Rapporteur on his mission to Afghanistan, the Taliban issued the following statement on 18 May 2008:

“Statement by the Leadership Council of the Islamic Emirate of Afghanistan in response to a report issued by the special rapporteur of the United Nations regarding the persecution and killings of civilians:

As His Excellency Amir Al-Momenin Mullah Mohammad Omar Mojahed in 2007 demanded an impartial investigation into the killing and persecution of civilians, the Leadership Council of the Islamic Emirate once again emphasizes that a joint delegation, comprising representatives of Afghan clergy and elders, independent journalists, human rights organizations and the international Red Cross, is appointed in order to investigate this issue, reveal the facts and identify the guilty party. In order to strengthen and ensure the security of the delegation, representatives from both the Islamic Emirate and NATO should also be present so that this issue is investigated in a transparent and independent manner, and to uncover as to who is really responsible for the killing of civilians, imprisoning them arbitrarily and destroying their villages, homes and crops. During the last six years we witnessed many times that the coalition air force had dropped heavy bombs on civilian gatherings, whether these were for sad or happy occasions, martyring hundreds of poor Afghans. The examples of these are the blind bombing of a wedding ceremony in Urozgan Province, of a convoy of tribal elders in Khost who were on their way to Kabul, the bombing of nomads’ village in Kandahar, and… [ellipses as published]

It also happens on many occasions when the foreign forces and the Afghan government officials are attacked, they then turn their guns on the civilians and cause indiscriminate death and injury to ordinary people. The clear examples of this are the repeated shooting of civilians after the explosions in the city of Kandahar, the shooting of school children in Baghlan Province, and firing at civilians on the road between Torkham and Jalalabad after fighting and explosions and… [ellipses as published]

Similarly, when the Afghan and foreign forces are defeated, they then indiscriminately start attacking villages, orchards, and bazaars by dropping bombs from aircraft or using artillery. A good example of this was in Panjwai and Musa Qala districts last year, and in residential area of Garmser District this year, the destruction of which is still continuing. This destruction is happening in all regions of Afghanistan. What is most shameful is that the BBC Radio in an investigative report revealed that the Americans had used chemical weapons in their bombardments, the negative effects of which can be seen on the newly born babies in the Tora Bora area of Nangarhar Province and in some other parts of the country. According to scientists, these negative effects will pass on from one generation to another.

Another example is that when the Afghan and foreign forces are attacked and harmed in an area, they detain hundreds of civilians in the name of being Taleban and mojahedin from the surrounding homes and villages. These civilians are kept in the enemy prisons for many years without being charged. There are too many such examples.

As the fighting becomes more intense with every passing day, and as the mojahedin make advances, the international collation is then forced to increase their forces in Afghanistan.

Therefore, in order to prevent such deplorable incidents from happening again, an independent, impartial and fair investigation should be carried out.

The Leadership Council of the Islamic Emirate of Afghanistan.”

In response to the 15 May 2008 Press Statement of the UN Special Rapporteur on his mission to Afghanistan, NATO issued the following statement on 16 May 2008:

1. “NATO-ISAF have noted the press statement by Philip Alston and recognise these are preliminary findings. We find much of the substance and the overall tone of the statement inaccurate and unsubstantiated.
2. We hope and expect that these inaccuracies will be addressed in a thorough and professional manner in the preparation of the final report to the United Nations Council on Human Rights. NATO is prepared to assist in the provision of accurate information to this end.
3. Overall we are concerned that the rapporteur focussed so little on the actions of the Taleban which, across the board, represent a major abuse of human rights at every level. Not only do they not respect the Laws of Armed Conflict, they reject them.
4. The report makes very strong allegations, far stronger than can be justified given the shortness of the visit and the level of research. It would appear that although ISAF was consulted as a part of this exercise, the detailed information provided was not taken into account in the rapporteur’s statement.
5. The statement contains casual allegations and ambiguous language that falls well below the standards required of such an important endeavour.
1. For example the quote, ‘The level of complacency in response to these killings is staggeringly high.’ is wrong in substance, takes no account of an extensive investigatory process by ISAF/OEF, and ascribes motivations without substantiation.
2. The comment stating there is ‘no evidence that the international forces…commit widespread intentional killings in violation of human rights…’ implies that they do commit some intentional killings. Such casual accusations are irresponsible, given the absence of evidence and the seriousness of the allegation.
3. Such casual unsupported accusations are repeated in comments like, ‘In many cases, these attacks appear to have been lawful…’ In reality, all air strikes follow strict Rules of Engagement and are within the Laws of Armed Conflict, and if there is any question of them not being lawful they do not happen.
6. The suggestion that international military forces have killed 200 civilians uses a figure that we reject and is far too high. We note it is an assertion unsupported by sourcing or evidence and substantially at odds with all credible estimates.
7. We are open to practical suggestions on improving transparency but due account needs to be taken of the sheer difficulty of the process of following up such incidents, which occur in an active insurgency where ascertaining facts and gathering evidence is difficult. Accusations that ISAF has killed civilians, very often come from an opponent who uses misinformation as a part of his standard tactics.
8. We are surprised and disappointed at the comments that the ‘majority of suicide attacks appear to target legitimate military objectives’ even with the caveat that ‘many’ are still unlawful because they are indiscriminate. They are all unlawful because they are all indiscriminate, and also involve combatants disguising themselves as civilians. Furthermore, we completely reject any moral equivalence between the United Nations mandated ISAF mission in support of the sovereign and legitimate Afghan Government and the illegitimate and illegal acts of anti-government forces.
9. We are also concerned at suggestions that international organisations should make contact with the Taleban. Such contacts are against the stated wishes of the sovereign Afghan Government. The statement that ‘taking account of information provided by such sources would permit a more nuanced understanding of abuses committed by the Taliban and other armed groups’ seems to imply that abuses should be understood rather than condemned.
10. In the conclusion the rapporteur states that international forces ‘should respect the principles of accountability and transparency.’ NATO-ISAF rejects any implication that we do not do so already. Our forces are accountable in accordance with the standards of our nations, and in strict adherence to our own RoEs and the Laws of Armed Conflict. NATO has implemented regular reporting from ISAF to the North Atlantic Council on any credible allegation of our forces’ involvement in civilian casualties.”

Today, the UN Special Rapporteur on extrajudicial executions presented several reports to the UN Human Rights Council:

• Annual Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3)
• Corrigendum to Annual Report (A/HRC/8/3/Corr.1)
• Communications Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.1)
• Philippines – Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.2)
• Nigeria and Sri Lanka – Follow-up reports of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.3)
• Brazil – Preliminary note of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.4)
• Central African Republic – Preliminary note of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.5)
• Afghanistan – Preliminary note of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.6)