TORTURE: ASIAN AND GLOBAL PERSPECTIVES | FEB – APR 2014
VOLUME 03 NUMBER 01 & 02
An examination of the effectiveness of human rights strategies for the prevention of the improper use of force and violence
by BASIL FERNANDO
THE human rights project is centered on eliminating the improper use of force and violence in the way the state deals with the individual.
In the context of industrialised western countries the struggle to eliminate the improper use of force and violence has a long history. Michel Foucault[i] illustrates how, before the 19th century, physical violence was used as part of a spectacle in the punishment of culprits. In the 19th century this approach was abandoned and replaced by imprisonment as the mode of punishment. Thus, for those who grew up in these western countries, the use of direct force on the body of a human being by an agent of the state has now become unfamiliar.
However, this is not the case in most of the countries in the world. Like elsewhere, in most Asian countries the direct use of force on the body of the alleged culprit is common. Thus, the improper use of force and violence by the agents of the state on alleged culprits follows the old model used in Europe, making the sufferings imposed on the body of a person a spectacle for all to see.
The answer as to why this remains so should be sought, not from officers of the security apparatus (police and military) as the agents of the state, but from the state itself. If not for the approval from the state, the police officers, military and others are unlikely to use such force and violence. In the event that any agent of the state on their own exercises such improper force on anyone, s/he would incur disapproval and consequent punishments by the state. What is usually called ‘impunity’ following the improper use of force and violence is a demonstration of the state’s approval of the use of such methods.
The mere fact that a particular state has ratified UN conventions forbidding such improper use of force and violence does not necessarily indicate actual disapproval of the use of such methods by its agents in dealing with alleged criminals. The same can be said of constitutional provisions outlawing torture and other improper uses of force and violence. The test as to whether the state disapproves of the improper use of force and violence is the practical means by which it ensures that such actions by its agents are prevented.
The prevalence of torture, ill-treatment, and other improper uses of force and violence in many Asian countries has been demonstrated through research and documentation. The following note from The Practice of Torture, published by the Asian Human Rights Commission in 2013, provides a literature review on torture and ill-treatment in Asia:
In recent years, there have been numerous attempts to document the practice of torture in many Asian countries. The agencies involved in such documentation include human rights organisations and some of the agencies of the United Nations (such as the Rapporteur against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Committee against Torture, and reports presented to the former Human Rights Commission and the present Human Rights Council). Besides these, there are also a few academic foundations.
The Asian Human Rights Commission (AHRC) based in Hong Kong has placed a high priority on the documentation of torture. Together with its sister organisation, the Asian Legal Resource Centre (ALRC), it has produced numerous reports and publications in which the problems relating to the implementation of the UN CAT have been very lengthily documented. The AHRC’s Urgent Appeals system has concentrated on assisting victims of torture in many Asian countries. As a result, a large body of information has been gathered in the Urgent Appeals archives. These are reports of individual complaints, which give vivid details on the practice of torture, as well as the limitations on the possibilities of the victims obtaining redress.
The following are some of the reports published by the AHRC/ALRC in the bi-monthly publication, Article 2:
ALRC has published following reports of torture through its quarterly publication Article2; On SRI LANKA, Volume 1 no 4,i Volume 3 No 1ii,Volume 4 No 4iii, Volume 4 No 5iv, Volume 6 No 2,v Volume 8 No 4, vi and Volume 10 No.4vii; INDIA Volume 1 No 3viii,Volume 2 No.1ix,Volume 2 No 4 , x Volume 2 No 5,xi Volume 3 No 4xii,Volume 5 No 6xiii,Volume 7 No 2xiv, Volume 9 Nos 3 and 4xv, Volume 10 No 3xvi; BURMA, Volume 2 No 2xvii, Volume 2 No 6xviii, 5Volume 6 nos 5 and 6xix, Volume 7 No 3xx, Volume 11 No.1xxi; THAILAND , Volume 2 No 3xxii, Volume 4 No 2xxiii,Volume 4 No.3xxiv, Volume 5 No 3xxv,Volume 6 No 3xxvi; PHILIPINES Volume 5 No 5xxvii,Volume 6 No 4xxviii, CAMBODIA Volume 1 No 1xxix, Volume 1 No 2xxx, Volume 5 No 1xxxi, BANGLADESH Volume 5 No 4xxxii, Volume 10 No 2xxxiii, NEPAL Volume 3 No 2xxxiv, Volume 3 No 6xxxv, Volume 4 No 1xxxvi, Volume 7 No 1xxxvii; INDONESIA Volume 5 No 2xxxviii,Volume 9 No 1xxxix, PAKISTAN Volume 1 No 5xl, Volume 3 No 3xli, Volume 3 No 5xlii, Volume 8 no 2xliii and Volume 8 No 3xliv.
All these volumes are available at www.article2.org.
The State of Human Rights in Ten Asian Countries, published annually since 2005, devotes a chapter to each of these countries.[ii]
A Table on the Improper Use of Force and Violence by the States in Asia
|Country||Torture and ill-treatment||Enforced disappearances||Illegal arrest and detention||Fabrication of charges||Threats of assassination and other forms of harm||Sexual violence by security officers||Discrimination on the basis of sex, race and caste, religion||Blackmail by state agents|
References in this chart are to general practices and not to exceptional incidents
Approaches to the improper use of force and violence
The general approach to the improper use of force and violence is to attribute such abuse to the security agencies, such as the police, military and intelligence agencies. Some attribute such abusive practices to individual security officers and demand action against these individuals only. This approach has not proved adequate for the prevention of such improper use of force and violence. A more comprehensive approach is required in examining the root causes for the prevalence of such abuses, rather than merely attributing it either to the individual officers, or even to the security apparatus as a whole.
The widespread practice of abuse that prevails indicates that the state, as the ultimate political authority in the country, bears the responsibility for its prevalence. Without the direct or overt approval of the state the individual officers of the security apparatus, or the security apparatus as a whole, cannot engage in such widespread abuses. State responsibility is two-fold: that is, a positive responsibility, through its approval for the improper use of force and violence; and a negative responsibility, when it fails to take the necessary steps to eliminate such practices.
The general approach is to attribute only responsibility in the negative sense to the state; the failure on the part of the state to take the necessary steps to punish the perpetrators of such abuses, and further the failure to take the necessary steps to ensure internal controls within the security apparatus in order to prevent the individual officers from committing such abuses.
However, this negative attribution is inadequate in explaining the widespread nature of such abuses, which are committed all the time. The positive attribution of responsibility to the political authority is justified on the basis that it is the overarching idea of discipline that the political authority holds and insist on enforcing which creates the space for such widespread abuses by individual officers and the security apparatus as a whole.
On that basis, it could justifiably be argued that in committing such abuses individual officers and the security apparatus as a whole are conforming to the expectations of the political authority, which expects the improper use of force and violence as a legitimate means of imposing discipline within society.
The political authority may consider that the widespread use of torture and ill-treatment is necessary in order to keep the citizens under its control. The use of torture and ill-treatment as a spectacle in order to create a culture of fear and intimidation is a political strategy of social control. In the same way, enforced disappearances are also approved under certain circumstances, such as in a situation of rebellion or insurgency, as a method of instilling fear and to intimidate anyone who dares to rebel against the state. In this sense the example given by Michel Foucault in his book, ‘Discipline and Punish – the Birth of the Prison’ of the case of Damiens the regicide is quite relevant to the Asian context.
The improper use of force and violence is used by the political authorities in most Asian countries as a mode of social control, so as to achieve obedience by way of instilling fear and intimidation.
The political authorities in these Asian countries have failed to achieve rule by consent. Although in some of these countries processes may exist for the election of governments, this does not imply that the form of governance is democratic; it is not governance by consent. In fact, in many of these countries even the electoral process is manipulated through violence used on political opponents. In any case, day-to-day ruling does not take place in a democratic manner; improper use of force and violence is used to control the population.
A particular group within the population more exposed to the improper use of force and violence by the state is the lower income group; that is, the poor. In these countries, they are the overwhelming majority. The affluent middle classes and the rich constitute only a minority. The majority is controlled through the widespread use of force and violence. Thus, such improper use of force and violence is the mode of politics that is prevalent in these societies.
Thus, the following table is more representative of the sources of the improper use of force and violence in Asia.
The need for a fresh approach to understand the improper use of force and violence in Asia (and, in general, for countries other than developed democracies)
The approach that has become quite common in the human rights field in particular, and in the discourse on state violence generally, is to attribute it either to individual officers or to some of the defects of the security apparatuses in particular countries.
However, in terms of the analysis made above, what is required is a more comprehensive approach that takes into account the ultimate responsibility of the political authorities for the widespread use of force and violence. This approach requires an attempt to understand the nature of the political system in a particular country, in the attempt to comprehend why torture and ill-treatment, enforced disappearances and other forms of the improper use of force and violence remain widespread within a particular context.
A similar distinction made in this paper relating to developed democracies and others is found in a recently published article by Dr. Nick Cheesman who is attached to the Australian National University. It is a useful reference and may be found in: The Hague Journal on the Rule of Law[iii]. He makes the distinction between the rule of law and law and order. He further states that the two concepts are asymmetrical. The present paper is also based on that premise.
The approach needed for prevention
Interventions aimed at the prevention of torture, ill-treatment, and other forms of the improper use of force and violence require a more comprehensive approach than mere condemnation of individual officers who engage in such abusive practices, and also a much wider approach than a mere call for reforms of the institutions that are part of the security apparatus, such as the police, the military and the intelligence agencies. It even requires going beyond reforms of the institutions of the administration of justice, such as the judiciary, prosecution, investigating agencies and prison services.
The most important aspect that needs to be addressed is the responsibility of the political authorities in their overall approach to social control. It is these political authorities that finally condition the behaviour of the individual security officers, the nature of the security apparatus and the independence enjoyed by the institutions of the administration of justice (such as the judiciary, prosecution department, investigating authorities and the prison authorities). It is not within the power of any of these agencies to transgress the parameters set up by the political authorities, directly or covertly. The prevention of torture, ill-treatment and other forms of the improper use of force and violence cannot be left purely to the integrity or heroism of the officers who are managing these activities.
The mere recommendations to investigate abuses and to prosecute them, as often demanded by human rights groups when violations are reported, do not go far enough to address the root causes of these problems. The capacity for investigations requires the freedom and independence to conduct such investigations. They also require the necessary resources, such as professional training, forensic facilities and other material resources for effective transport, communications and the like. Granting such independence and freedom, as well as providing the necessary resources, is in the hands of the political authorities. When the political authorities lay down, directly or indirectly, the parameters within which the person working in these institutions should operate, these parameters ultimately control the manner in which the work of these institutions takes place. In any case, the political authority can determine what these other institutions may be able to achieve by the control of resources. Also, the political authority can also decide who to recruit or dismiss.
Thus, the concept of change from inside, meaning the change from within the institutional framework of the security apparatus, may not be a realistic possibility within a context where a political authority creates limitations on what the security apparatus is allowed to do. Thus, the change from inside concept must start with the change from within the political authority itself. It is only when the political authority internalises norms and standards of justice that the rules which could operate within a particular society, including the rules governing the security agencies, could come into being. When the internalised conception of the political authority on modes of social control involves suppressing freedoms of individuals, the rules which are formulated by such political authorities will necessarily create a culture of repression. When the political authority creates a culture of repression, it is not within the capacity of the security apparatus to ignore or go against such rules.
The rule-making function of the political authorities
It is the political authorities that finally decide and shape the rules which operate in a particular society, including the rules under which the institutions of the security apparatus function. What is meant by ‘rules’ may be described through the following words of John Rawls:
In saying that an institution, and therefore the basic structure of society, is a public system of rules, I mean that everyone engaged in it knows that he would know if these rules and his participation in the activity they define were the result of an agreement. A person taking part in an institution knows what the rules demand of him and of the others. He also knows that the others know this and that they know that he knows this and so on.[iv]
It is these rules which, among other things, create the nature and functions of a criminal justice system within a particular country.
Political authorities as the shapers of criminal justice
When there is the widespread improper use of force and violence followed by impunity in a particular country, it implies that this situation is an integral part of the criminal justice system within that country. Thus, the improper use of force and violence coupled with impunity and the criminal justice system are not two opposites as it is often presupposed in popular discussions. In fact, such abusive practice coupled with impunity is an integral part of the criminal justice system in that particular context.
Political authorities create the kind of criminal justice that safeguards the type of political system that they have created. For illustration: under the regime of Joseph Stalin, a criminal justice system was created for safeguarding the absolute power of Stalin himself as the ultimate political authority of the country. This system was based on what was understood to be socialist principles. The state was understood to be the representative of the people and therefore the idea of protecting people’s freedoms and rights against intrusion from the state was quite contrary to these principles. Within that setup, the criminal justice system operated to protect the political authorities and the socialist property system. This is in contrast to a liberal democratic political system and a criminal justice system within the liberal democratic framework which is based on the idea of protection of the rights of individuals as duty of the state.
Thus, in understanding a particular criminal justice system in a given country, it is necessary to comprehend the nature of the political system that exists in that country. However, in doing that it would be quite misleading to go by the constitutions, statutes and other declarations only. What is essential is to understand the political system that actually exists within a particular country. The constitutions and other statutes may or may not be in conformity with the actual political system. The political system may use the constitution and other statutes merely as ornaments or things with limited purposes. What the system really is can be found in the actual operative principles that exist within a particular context. This can only be understood by proper observation of the way a system works in practice.
This difference between the system as it is expressed through the constitution and the statutes and the system as it practically operates is essential to understanding systems in the Asian context. Some countries have constitutions which, in fact, have very little possibility of practical implementation. Cambodia is a case in point. There are countries where what is expressed through the constitutions and what actually operates is vastly different, for example in Thailand, the Philippines and the like. There are yet other countries which use democratic jargon so ambiguously in the constitution and other laws that it is possible for a practically authoritarian system to exist while the constitution may look like a democratic one. Sri Lanka is a case in point. Thus, what is important in understanding a system is to be able to judge the nature of the system by the manner in which it actually and practically works?
A criminal justice system is related to the political system. Though a particular criminal law and procedure may be expressed in liberal democratic jargon, the actual nature of the criminal justice can be measured only by the manner in which the justice system is allowed to operate by the political system. When the system allows the widespread use of force and violence with impunity, for all practical purposes such practices become an inherent part of the criminal justice within that particular context. Thus, the practice of torture and ill-treatment, enforced disappearances and other improper uses of force and violence exists. It simply means that the liberal democratic norms relating to criminal justice are modified and distorted within those particular circumstances.
Caution that should be exercised in reading international literature about the prevention of the improper use of force and violence
Particular histories create particular institutions and practices. The literature that is produced from each society is a product that rises from those particular historical circumstances. When applying lessons learned from a particular historical circumstance, it is necessary to examine whether the historical circumstances in the country where these lessons are to be implemented are similar.
This is particularly important in applying systems and rules which emerge in what may be called the developed democracies. Over several centuries, vast political changes have taken place in those countries. Particular types of political control have been uprooted and different forms of control have developed. Both the political system and the criminal justice system have assimilated these principles and the principles are held in common in both the political sphere and the legal sphere. And the people, including those who are functionaries in the security apparatus, have internalised these principles. Thus, a person who is subjected to interrogation has the right to expect that he will be examined under the rules that are commonly held within his society.
This situation does not exist in countries where the norms within the political system are different. What the actual norms are can be understood only by direct observation of the system at work. Before the norms that have been developed in developed democracies can be applied, there needs to be vast changes brought about within the political system, and the legal system needs to be brought in conformity to these changed political norms.
A review of some human rights strategies used in the fight against the improper use of force and violence in its many different forms
In light of the root causes of the improper use of force and violence in countries outside developed democracies, some work strategies need to be critically examined from the point of view of how effective they have been, and can be, in dealing with those root causes.
- Demanding investigations and the prosecution of perpetrators for the improper use of force and violence, with the view to punish individual perpetrators as deterrence to further abuse.
This is the most commonly used strategy to fight violations of human rights. Usually, after reporting on individual cases of human rights violations or even on patterns of such violations, human rights organisations and UN agencies dealing with human rights will demand from the relevant government action to be taken to investigate and bring the perpetrators to justice.
The problem with this approach is that the perpetrators who are required to be investigated act on the basis of the policies and overall strategies designed by the political authorities represented by the government. The investigating authorities are also bound by the same policies and strategies that are authorised by the political authorities regarding the use of force and violence. Besides this, the same political authorities control both the perpetrators and those who are supposed to investigate such abuses.
It is beside the point that, often, the perpetrators and the investigators happen to be more or less the same person or authority. What is important is that, ultimately, the supposed improper use of force and abuse and the responsibility for the investigations into the same emanate from the same source of authority. The constant complaint by the human rights organisations is that, despite much demand for action against the abuses, impunity continues to prevail. This is no surprise as the violations are committed on the basis of direct or indirect assurances of impunity. The source of the violation, as well as the subsequent impunity, is politically conditioned. Mere repetition of the demand for investigations and prosecutions is unable to break the political wall that protects the improper use of force and violence. Much of the frustration within the human rights movement is due to the unwillingness to recognise this political reality; that the ultimate source of the matters that they complain of are not merely the perpetrators, meaning the officers of the security apparatus, but the political authorities themselves.
- Efforts to educate the police and military on human rights norms and standards as a way to eradicate the improper use of force and violence.
Many human rights education projects are undertaken by different parties, including the governments of developed countries, UN agencies, universities and human rights NGOs. Large sums of money have been allocated for such projects. At the same time there is a general complaint that, despite many such projects being carried out, no tangible improvements have been made as a result of such education. The reason for such failures and the resulting frustration is not difficult to identify. While this or that individual perpetrator may undergo some conversion as a result of such education, there will be many to take their place; the main reasons for the violations are the policies and strategies that are imbedded in such societies.
Whatever education that the personnel of the security forces may receive, they are duty-bound to carry out the policies and strategies that come from the political authorities who stand above them. When the same political authorities who have conditioned their behaviour also allow human rights agencies to carry out such educational programmes, it only creates cynicism. People from human rights agencies who have worked to impart such education have often heard remarks from security agency participants about how naive such efforts are in light of ‘the real situation’ in which they have to work.
- Efforts to improve legislation without reference to problems obstructing the implementation of legislation once passed.
One of the primary areas of human rights work is to lobby for the improvement of legislation to incorporate remedies for violations of human rights. Thus, the campaigns for the criminalisation of torture and enforced disappearances, for example, receive top priority. The same applies about every other aspect of the UN conventions. However, where there has been some success in bringing about such legislation, the problem that has surfaced thereafter is that the law remains in the books and is hardly ever implemented. Any search for reasons for the government’s failure to implement the legislation would reveal that if such law is implemented there would be serious political repercussions, including serious conflicts between the security agencies and the government.
The relevant legislation may be passed due to pressure from the international community and local human rights groups. A government which passes such laws expects that the international community will give them credit for doing so. However, if there is also insistence that the law should be implemented, there is likely to be serious friction. Perhaps the international community is also aware of this. Therefore it does not emphasise implementation. However, the net result is that, despite the law being passed, the victims of violations do not get redress. If the human rights community is to go beyond convenient thinking in trying to resolve problems it has to address the overarching hazards that exist in the context of a particular country. This requires a much more comprehensive approach, one which takes into consideration the political causes of human rights violations. When these are ignored, the ultimate result, even after the passing of the relevant law, is general cynicism and frustration.
- Working for judicial remedies for violations of rights without addressing the fundamental problems affecting the justice system itself, which is unable to deliver justice in any case.
Human rights groups work hard and assign considerable resources to assist victims in order to bring their cases to courts. However, once the cases are brought to court the course of justice is in many ways subverted by various problems, such as extraordinary delays in the adjudication process, insecurity caused by insufficient/ineffective victim protection laws and programmes, bribery at all levels of the adjudication process, and all sorts of manipulations which are allowed to take place to subvert justice. Thus, despite enormous efforts made by the victims and the human rights organisations, the results are some very rare and occasional successes, and an overwhelming amount of failures and losses. With regard to the improper use of force and violence, where this is widespread it is not only the security forces that are responsible; it is the judicial branch as well.
The judicial branch also works within the overarching scheme of policies and strategies of a particular state. They are not in a position to ignore these strategies and schemes without causing serious disturbances to the usual management of the state. Often the human rights community works on the assumption that the separation of powers is a part of the state structure. Superficial observations of the external aspects of the courts are used to try to buttress the idea of the existence of the separation of powers. However, what often exists is well-entrenched unification of power in the hands of the executive, and the executive also manipulates the judiciary. One of the most common forms of manipulation is directly selecting judicial officers that act in compliance with the executive. To ensure compliance, any judge who even slightly deviates from the expectations of the executive is subjected to punishment. On the other hand, those who comply are given many forms of rewards, including the engagement in corrupt practices. Human rights victims who reach court in search of remedies for the violations of their rights also get caught up in this web of manipulation.
The strategy of using judicial remedies as a solution to human rights violations, while not taking into consideration the actual situation of the separation of powers within the country and the obstacles to justice, can cause even more problems to the victims and also to human rights defenders, and the net result is always negative.
- A further strategy, which has been resorted to recently, is to demand international remedies, such as tribunals for all violations of human rights.
This approach arises from realisations about the impossibility of achieving justice through domestic legal systems. That realisation is again a direct or indirect recognition of the wider web of causes that make such human rights violations possible and impunity inevitable. However, this demand for international remedies for all violations of human rights is not practicably realisable. By their very nature these international remedies for human rights violations are possible only for extremely extraordinary circumstances where the nature of the violations is one of the primary considerations. The day-to-day violations of human rights by way of the abuse of force and violence does not fall within the requirements for such interventions.
Further, the international remedies can come about only through an international process and obtaining the consensus for such actions is extraordinarily difficult. Besides, such international actions are also extremely costly. What all this means is that although the demand for international remedies can be made easily, the actual possibility of practically realising such demands is quite limited. This implies that beyond creating some protests no practical outcome could be expected from such demands.
The problems in the domestic system need to be addressed and resolved if the protests against violations of human rights are to lead to practical outcomes. The essential sphere within which most human rights violations need to be remedied is the domestic legal system. The obstacles to such a system cannot be ignored. Direct and indirect attempts to ignore the problems that exist within the domestic sphere lead only to peril for all rights of the people subject to such a system.
- Academic courses on human rights with the view to encourage the protection and promotion of human rights.
There are several graduate and post-graduate courses being introduced in an attempt to create a greater understanding on human rights. However, many of these courses conducted in countries outside developed democracies tend to follow the same syllabus as those followed in the developed democracies. Addressing the specific problems which exist within the framework of a specific context has not been a priority in designing these syllabuses. The result is that the domestic obstructions to the implementation of human rights do not receive any attention. Often the education is more concentrated on international remedies for human rights, such as the International Criminal Court and other international tribunals, and matters such as transitional justice receive top priority in these syllabuses.
The result is that those who are educated in these courses have hardly any opportunity to address their minds to the specificities of their legal systems, which deny the population of their country the possibility of remedies for the abuse of force and violence by the state. Thus, these courses as they are designed at present do not equip students with the capacity to analyse their own domestic systems and thereby to become capable of contributing to much needed changes in their countries and make human rights a practicably achievable goal. Perhaps the reason for the limited perspective within which the syllabuses are made is due to mere limitations relating to study modules from developed countries, or a lack of awareness on the part of those who design such syllabuses of the ground realities of the specific countries from which their students come.
A further comment on the strategies mentioned above
All these and similar strategies have a limited value as forms of protest against injustice. Also, all these actions are expressions of solidarity for the victims of violations of human rights, particularly for those who have become victims of the abusive use of force and violence by the state. All acts of injustice demand immediate reactions and protest. What has been pointed out above is that, given the overall context within which these violations take place, there is no valid reason to expect the achievement of the particular objectives of these strategies. Therefore, in all protests relating to such injustice it is necessary also to bring in a perspective on the basic causes that generate the injustice and make impunity the ultimate outcome. Thus, by making efforts to link all protests to the root causes that makes such injustice possible, the victims and all those who take part in the protests can be educated and empowered through the motivation to see the meaning of their protests in terms of addressing root causes.
Where no such overall perspective is present the initial protests against injustice may generate greater frustrations about the impossibility of finding redress, and thereby cause demoralisation among the victims, as well as among those who come to their support. In fact, such a state of demoralisation exists due to the limited perspectives within which these objectives are pursued. Such demoralisation itself contributes to the strengthening of the repressive systems and makes the political control of dissent easier. The suppression of all protests is also a part of the overall scheme of the political system, which limits the freedoms of their populations by permitting the improper use of force and violence.
Theory of change
When studying the improper use of force and violence with the view to work towards the elimination of such abuses, it is necessary to develop a theory of change which is comprehensive enough to take all relevant factors into consideration. A theory of change which takes only individual security officers or the security apparatus into consideration, and leaves out the overarching political system, is unlikely to produce any positive change.
The mere insistence on international norms and their application, without taking into consideration the nature of the political and criminal justice systems, is so superficial that it will not be taken seriously by people who are undergoing serious repression in their countries. A theory of change should look comprehensively into a combination of factors, giving serious consideration to the political system and those who bear political responsibility within the country, if such a theory is to express the reality of a given society. The project for the implementation of international norms relating to human rights, if it is to become capable of eliminating the improper use of force and violence, should be developed by taking into consideration all the complexities that have made such widespread abuses possible.
In developing such a theory of change for human rights violations in countries outside those of the developed democracies, extensive studies about the ground realities of the specific countries is an unavoidable step. A discourse on the historical circumstances of the nature of the state in particular countries and the nature of political control of each country from the point of view of recognition or the lack of recognition of human rights in the practical sphere needs to be brought to the surface and be made a subject of discourse both academically and also in terms of popular discourse. The emphasis on the practical sphere is meant to signify that a mere study of the ratification of UN conventions, constitutional bill of rights, and other statutes needs to be distinguished from the way such provisions are made practically implementable within each country. The practical scheme of implementation needs to be based on an understanding of the overall political control of all agencies in the legal system, and an attempt to measure the extent to which such institutions enjoy the independence to carry out their functions. Of particular importance is to research the manner in which the functionality or the dysfunctionality of these institutions have been viewed and assessed from the point of view of the actual possibility of the practical realisation of human rights. On this particular point, importance needs to be given to the possibilities of eliminating the improper use of force and violence within each of the countries.
The basic concept behind the theory of change could be formulated within the framework of Article 2 of the International Covenant on Civil and Political Rights (ICCPR). Article 2 obligates the state parties to ensure an effective remedy for violations of human rights. For this purpose, it obligates the governments to take legislative, judicial and administrative measures to ensure an effective remedy. Most commentators on Article 2 concentrate on legislative changes, such as, for example, the criminalization of acts which amount to improper use of force and violence – the criminalization of torture, forced disappearances, sexual abuse, and the like. However, what is often ignored is the obligation of the state to take judicial and administrative measures to ensure an effective remedy. A holistic view of change from the law and order approach to the rule of law approach for the elimination of improper use of force and violence requires legislative, judicial and administrative measures. In short, the legislation must be in terms of the normative framework of the rule of law. The judicial framework should also be within such a normative framework, and the government should also ensure that administrative measures, such as budgetary provisions that enable the proper functioning of the judicial process through ensuring the necessary resources, both by way of personnel and other technical resources, are also within such a framework. The whole approach must conform to the normative framework of the rule of law. Issues such as the training of the security officers and their internal discipline could be satisfactorily addressed only within a legal system which is constructed on the basis of such a normative framework.
 Please see Basil Fernando, “Reflection on article 2 of the ICCPR: The role of human rights activists in diagnosing the lack of effective remedies”, Article 2 (Vol 9, 2010) http://www.article2.org/mainfile.php/0902/376/
[i] Michel Foucault, Discipline & Punish: The Birth of the Prison
[ii] The Practice of Torture – the Threat to the Rule of Law and Democratisation. AHRC 2103 (A report on Indonesia, Bangladesh, Burma, Sri Lanka, the Philippines, India, Pakistan, Nepal and Thailand).
[iv] A Theory of Justice, John Rawls, Harvard University Press, revised edition 1971, Page 48.
W.J. Basil Fernando is a Sri Lankan jurist, author, poet, and human rights activist. He earned an LLB from the University of Ceylon in 1972, registered as an Attorney-At-Law of the Supreme Court of Sri Lanka in 1980, and practiced law in Sri Lanka till 1989. Subsequently, he became a legal adviser to Vietnamese refugees in a UNHCR-sponsored project in Hong Kong. He joined the United Nations Transitional Authority (UNTAC) in 1992 as a senior human rights officer and later also served as the Chief of Legal Assistance to Cambodia of the UN Centre of Human Rights (now the UN High Commissioner of Human Rights office). He is associated with Asian Human Rights Commission and Asian Legal Resource Centre, based in Hong Kong since 1994, where he is currently Director, Policy & Programmes.