United Nations
Background Note

Independence of the Judiciary:
A Human Rights Priority



While United Nations troops grab headlines as peace-keepers throughout the world, thousands of other UN personnel are working on quieter, less dramatic fronts to ensure that peace endures.

After first addressing such rudimentary human rights as food, health care and education, the United Nations advises and assists with the rebuilding of institutions of governance -- particularly the system of justice.

The connection between justice and peace was recognized by the Charter of the United Nations in 1945, when the founding nations said they were determined to "establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained".

The Universal Declaration of Human Rights, adopted three years later, enumerated certain essentials to the achievement of individual dignity and social order. It affirms that everyone is entitled to the equal protection of the law; that the accused must be presumed innocent until proven guilty, in a fair and public hearing, by an "independent and impartial" tribunal; and that no one should suffer arbitrary arrest, detention or exile.

A treaty adopted in 1966, the International Covenant on Civil and Political Rights, enshrines judicial rights as a matter of law, not just principle. These include the right of every human being to a fair trial, immunity from arbitrary arrest and immunity from retroactive sentences. The Covenant and two Optional Protocols -- along with the 1966 Covenant on Economic, Social and Cultural Rights and the Universal Declaration -- together make up the five-part omnibus document known as the International Bill of Human Rights.

The Glue for Lasting Stability

Implementing universal judicial rights involves a wide range of steps, from the drafting of legislation to the training of judges and lawyers and the modernization of court systems, police forces and prisons. The aim is to develop respect for human rights among lawmakers and law enforcers and to buttress their roles as protectors of those rights.

The work proceeds slowly, with day-to-day results difficult to measure, particularly where the culture of justice has been deformed by war or military rule. Yet it provides the glue for lasting stability.

Due process -- the rules and routines of fair treatment for suspects of wrongdoing -- is almost invariably a casualty of war. The formalities of charges, defenses and appeals are whittled away as fighting drags on, until even the pretense of neutrality is dropped by prosecutors and judges and the rights of the accused forgotten.

In their place, arbitrary arrests, summary executions and enforced disappearances all too often become the mechanisms for eliminating perceived enemies of the State. The police and paramilitary guards inspire fear rather than confidence, and citizens cease to rely on them for protection. Prison wardens and guards freely use force to quell riots and prevent escapes.

When peace finally opens the door to more freedom, citizens must develop enough trust to submit their disputes to authority rather than resort to violence.

Offering Models for Lawmakers

In addition to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the United Nations has set forth a set of standards known as the Basic Principles on the Independence of the Judiciary.

Adopted in 1985, the Principles envisage judges with full authority to act, free from pressures and threats, adequately paid and equipped to carry out their duties. Although this set of standards does not carry the force of law, it offers models for lawmakers everywhere, who are encouraged to write them into their national constitutions and to enact them into law.

Many countries have formally adopted the Principles and report regularly to the United Nations on their progress and problems, sometimes seeking help with legal education or the monitoring of procedures.

The United Nations has also promulgated Basic Principles on the Role of Lawyers and Guidelines on the Role of Prosecutors. It has campaigned continuously against summary or arbitrary executions. It adopted, in 1984, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and drafted Standard Minimum Rules for the Treatment of Prisoners.

The Special Rapporteur's Role

Alarmed by an increase in attacks on lawyers and judges in the 1990s in many countries and what appeared to be an overall weakening of human rights protections, the United Nations Commission on Human Rights called for the appointment of a Special Rapporteur to focus on problems -- and progress -- in promoting universal judicial independence. Param Cumaraswamy of Malaysia, appointed Special Rapporteur in April 1994, pledged to raise international awareness of the Guidelines and Conventions related to judicial autonomy, defense counsel and jurors, and treatment of prisoners.

Mr. Cumaraswamy said he viewed the primary mission of the Special Rapporteur as that of an educator and communicator. In his first report to the Commission in 1995, he pledged to work to publicize the Basic Principles on the Independence of the Judiciary and to ensure that people understood them.

"Over the long run", he stated, "increased awareness of the standards is the key to progress". In this task, he intends to enlist the broadest possible range of supporters from among heads of State and Government, human rights organizations and bar associations. He said he that sees himself as both an advocate for reform and a sounding board for questions in seminars, meetings and study tours.

Two new dangers affecting due process require special attention and perhaps new standards, he emphasized. First, the rise of terrorism has led some countries to set up special courts with procedures that sacrifice fairness and affect the appearance of impartiality. Second, powerful advances in communications technology have made it more difficult to balance freedom of expression with the right to a fair trial.

As Special Rapporteur, Mr. Cumaraswamy hopes to act as a catalyst for the sharing of experience and advice among nations, with an emphasis on the prevention of abuses. In fulfilment of his mandate to inquire into serious allegations of attacks on the independence of the judiciary, lawyers and court officials, his first report on specific cases, along with conclusions and recommendations, is due early in 1996.

Implementing the Ideals

Some of the most active work in ensuring the independence of legal institutions is being carried out in Cambodia, El Salvador, Haiti and Rwanda.

Cambodia

The Khmer Rouge seized power in April 1975 and, almost overnight, turned Cambodia's cities into ghost towns. Thousands of people were herded into slave communes. The educated elite, merchants and religious believers were sentenced to forced labour or were killed. In four years, more than a million people died. One in seven Cambodians was executed, was lost in the harsh "re-education camps," or perished as a result of famine or disease. In 1978, Vietnamese forces invaded the country, pushing throngs of starving and panic-stricken Cambodians towards the border with Thailand, where many more were killed. Cambodia was thus plunged into a 13-year war.

The United Nations brokered a truce in 1991 and forged a peace agreement that established a four-party Supreme National Council, restored Prince Sihanouk to power and provided for national elections in 1993. The United Nations Transitional Authority in Cambodia (UNTAC) opened the way for the rebuilding of the legal system, starting virtually from zero. Although UNTAC's mandate ended on 24 September 1993, its efforts laid the groundwork for a process that continues today.

In 1993, the United Nations Centre for Human Rights was requested by the United Nations General Assembly and the Commission on Human Rights to establish an office in Phnom Penh with branches in three provinces. From the beginning, strengthening the judiciary was a main focus of the Centre's activities.

The Centre has been carrying out a programme of assistance to the judiciary through the placement of foreign consultants in Cambodian courts to conduct on-site training and to assist judges in their work.

The Centre also works closely with the Cambodian National Assembly, in particular by assisting the Commission on Human Rights and by providing advisory services in the elaboration of legislation related to human rights. This includes laws on the judicial structures.

The Centre has also produced a compilation of existing Cambodian laws, aiming at facilitating the work of legal professionals, legislators and researchers, and has translated into the Khmer language a number of international human rights instruments.

It has also acted to facilitate the provision of financial assistance from bilateral and other donors for the rehabilitation of courthouses. Bar associations in many countries have helped by collecting law books and supporting the purchase of paper, pens, desks and chairs.

A problem that remains to be solved is the low pay for judges in Cambodia, who earn the equivalent of US$ 20 a month -- the standard wage for public administrators but not enough to live on. While other professionals can supplement their earnings with part-time jobs, judges cannot properly take money from private sources. United Nations experts have continued to urge that pay raises be instituted, citing the value of insuring the financial independence of judges and the appearance of propriety. This sort of change in tradition may come slowly, but ultimately it will make a difference.

At one point, the Government announced a plan to eliminate from the criminal system the corps of "defenders," who fill in for a defense bar that is all but nonexistent in Cambodia. United Nations experts urged that this decision be reconsidered, and as a result of action by the Cambodian National Assembly, the corps was retained -- although only for an extremely limited period of two years.

Defenders rarely have enough time or resources to investigate fully a case, interview the accused, examine witnesses and plead for the client. Still, there is wide agreement that the system is fairer with them than without them. At the same time, programmes are being implemented for the training of lawyers, and the first group of Cambodian lawyers graduated in 1995.

Haiti

The United Nations civilian mission in Haiti went to work within days of the invasion of the Multinational Forces in September 1994. A climate of fear had descended after years of killings and abductions of citizens by the military and their paramilitary associates (known as attaches), other vicious gangs, and abusive police officers. People were dragged from their homes, some never to be seen again. Others were thrown into filthy, crowded jails with nothing to eat and no information on the charges against them.

With the return of President Jean-Bertrand Aristide, top priority was given to the formation of a police force trained to respect human rights while restoring order.

Under the aegis of the United Nations, the United States helped train hundreds of new National Police officers; provided them with uniforms, batons, handguns and hand-held radios, and sent them to stations in Port-au-Prince, Artibonite and the Départment du Nord.

As each group graduated, a corresponding number of the old guard were removed. Deposed officers (the Interim Public Security Force has been supervised by the Multinational Forces) are offered retraining for the new police force or as prison guards.

A Wide Range of Law-Enforcement Needs

Haiti needs everything that goes into law enforcement. Canada has undertaken to restore all 14 provincial civil tribunals and to donate office equipment. Police stations and courthouses need desks, chairs, telephones, computers and paper. Vehicles given to the police and court personnel by the Multinational Forces lack spare parts and often run short of fuel.

Six of the most squalid prisons are being rehabilitated, but nine others are awaiting funds.

A prisoner registration system is under way, and the training of wardens is being conducted by the Crime Prevention and Criminal Justice Branch of the United Nations Secretariat, with joint funding from the United Nations Development Programme (UNDP) and the United States Agency for International Development (AID).

Ecole de la Magistrature, the Academy of Justice, opened in Port-au-Prince on 3 July 1995. Haitian lawyers marked the grand opening by presenting a seminar for prosecutors, based upon preparation they had received at the Justice Academy in Bordeaux, France. As a centre for legal training, the Academy operates with continued assistance from France and the United Nations.

To bring to justice the violators of human rights who wreaked havoc in Haiti throughout the 1990s, the National Commission for Truth and Justice has dispatched investigators to collect information on alleged kidnappings, assaults, torture and murders. The United Nations has been actively involved in assisting the Commission.

El Salvador

Important changes in the judiciary of El Salvador, a system long known for its lack of autonomy and inefficiency, have begun to inspire public confidence in the justice system and have helped to cement the peace.

Under the auspices of the United Nations, a series of international negotiations and political accords, beginning in 1990 and culminating in the Final Peace Agreement of January 1992, brought El Salvador its first peace in decades. The Peace Agreements did not stop with solving military questions, but also tackled electoral law and reforms intended to reach some of the deep-seated conflicts.

The election law incorporated several precautions to keep the Supreme Court independent of the legislature. Judges were to sit for nine-year terms, while legislators served only three-year terms. In addition, half of the candidates for the bench were to originate with lawyers' groups, with the other half being proposed by the legislature.

In 1994, the first election conducted in accordance with the new law produced a group of nine respected Justices, unanimously selected by all the groups represented in the new Legislative Assembly. It was an auspicious beginning.

The Supreme Court, with the help of the United Nations, is supervising training sessions for judges and court personnel. Meanwhile, newlytrained police officers are replacing the old force. The disbanding of the old guard went more slowly than had been hoped, but human rights monitors from non-governmental organizations and the United Nations continue to press for swift disciplinary action against officers guilty of abuses.

Explosive prison riots, with scores of deaths and injuries, have pointed up the need to address problems of crowding, bad sanitation and inedible food in the detention centres. The Centre for Human Rights, in the meantime, is mounting a new technical assistance programme for police training and to strengthen respect for human rights in the army and in the judicial system. Special attention is being given to the rights of children and women.

Rwanda

In Rwanda, where civil strife has led to genocide on a vast scale, the United Nations is providing judges, prosecutors and other court personnel to advise all levels of the Rwandan justice system. At the same time, the United Nations is playing an instrumental role in laying the groundwork for a summit meeting to discuss the means of addressing genocide.

The murder and flight of Rwandan judges has paralyzed the administration of justice -- and created a backlog of hundreds of cases, as well as dangerously overcrowded prison conditions. At one point, more than 50,000 inmates were reported to be occupying spaces designed for 12,500.

Long waits before trial breed frustration and anger in the prisons, posing a larger threat of riots and rebellion. Meanwhile, health, sanitation and security are poor, and more than 200 prisoners die every month, according to some estimates.

Working closely with trained Rwandan justice officials, the United Nations has been providing training and guidance on arrest and detention procedures throughout the country. At the same time, three experts began working with the Ministry of Justice in such areas as legislative drafting, prison reform and oversight, and police investigations.

Training for prison officials and civilian police forms a strong component of the human rights agenda in Rwanda, where 301 gendarmes completed a 16-week course in June 1995, 513 started the course in July that year and 750 communal police officers began courses in September 1995.

Burundi, where tens of thousands of Rwandan refugees have fled, has hosted seminars for judges, lawyers, prison staff and public administrators.

The support of the United Nations for the Faculty of Law in Bujumbura, Burundi, has made it the centre of legal education for magistrates, attorneys and court officers and a source of refresher courses for sitting judges.

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Justice-strengthening is the spadework for a peace built upon respect for human rights.

As demonstrated in Cambodia, Haiti, El Salvador and Rwanda, the work demands a delicate mix of standard-setting, training, advice on laws and procedures, and funding. It is the hard and honourable work of fulfilling the promise of the Universal Declaration of Human Rights: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family".


Published by the United Nations Department of Public Information DPI/1837/HR--August 1996