Port Moresby, 14 March 2014
1. I conducted an official visit to Papua New Guinea from 3 to 14 March 2014. I would like to thank the Government for extending the invitation to me to visit the country, as well as for the open and cooperative approach of the officials I met. I would also like to thank the United Nations Country Team, and in particular its Human Rights Adviser and officer for the invaluable support received in the preparations and conduct of my visit.
2. The aim of the visit was to examine the level of protection of the right to life in Papua New Guinea, as well as the efforts undertaken to prevent unlawful killings and ensure justice and redress in such cases.
3. During my visit, I had the opportunity to travel to Port Moresby, Buka in the Autonomous Region of Bougainville, Goroka, Kundiawa, Lae, and Manus Island.
4. During these two weeks, I held meetings with the Minister of Justice and Attorney-General, the Minister for Police, Secretaries, Commissioners and high-level officials of Foreign Affairs, Police and the Royal Papua New Guinea Constabulary, and the Office of the Public Prosecutor. I also met the Chief Justice, the Public Solicitor, and the Chief Ombudsman, and engaged in discussions with the Judge in charge of the Human Rights Track of the National Court. In the provinces and the Autonomous Region of Bougainville, I held meetings with Governors, Provincial or Chief Administrators, Provincial Police Commanders and other officials of the Police, representatives of the Office of the Public Prosecutor, as well as representatives of the Office of the Public Solicitor and judges, magistrates and clerks of the National Court, District Courts, and Village Courts. I also visited the Regional Processing Centre for asylum seekers in Manus Island and the Barawagi Prison.
5. Additional meetings were held with the United Nations Resident Coordinator and Country Team, the delegation of the European Union, the Australian High Commissioner and various authorities of the Australian Government in Port Moresby and Manus Island, the International Committee of the Red Cross, as well as a series of non-governmental organizations, human rights defenders, academics, victims and their relatives.
6. I regret however that the private security firm G4S was not available for meetings with me either in Port Moresby or Manus Island. I also regret not having been given the opportunity to meet asylum seekers at the Regional Processing Centre on Manus Island.
7. A detailed report on my findings and recommendations will be presented at the 29th session of the United Nations Human Rights Council in 2015. The observations and recommendations presented today are preliminary and will be examined and developed further in the future report.
8. I found during my visit that Papua New Guinea is faced with serious levels of violence, which often also has lethal consequences. In my statement I will mention the main patterns of killings I identified, as well as the obstacles in the law and order system and socio-cultural context that hamper effective prevention, justice and redress in such cases.
9. I do believe, however, that Papua New Guinea at the current moment has an historical opportunity to make significant strides in its protection of human rights, including the right to life. While the challenges should be recognized, the convergence of a number of factors point towards the present moment as a unique opportunity to take a new course, in some respects, and to consolidate some of the many positive elements that are already present.
10. These conducive factors include the following:
a) The country has a Constitution (and in general a legal system) that provides strong protection to at least civil and political rights, coupled with remarkably open provisions and procedures on standing;
b) A critical mass of the Government and other officials and leaders with whom I interacted are open to change and to moving the protection of human rights in the country forward, and the judiciary is well-respected;
c) The country has a strong development trajectory and an important role to play on the regional and broader landscape;
d) The need for many of the changes that are necessary has been recognized for some time in the system; it is currently a question of implementation.
11. Papua New Guinea has immense natural resources that are increasingly being exploited as the driver of one of the fastest growing economies in the world. The country is bound to become more integrated with, and assert itself in, the outside world, and the pressure to follow human rights standards will increase. The time to set a solid framework for sustained growth and flourishing and inclusive society, based on human dignity and the rule of law, is now.
12. Tinkering with parts of the system will not do. What is called for is a visionary and comprehensive process, driven by the leaders of Papua New Guinea, in partnership with the international community. In itself no single reform measure that the country is currently implementing or that I will propose can take the society forward; the synergies between the different components of a holistic approach will make the difference.
13. Of particular importance will be to ensure that the institutions and procedures required to steer society into this direction are in place. While some of these institutions and procedures already exist, some obvious elements are missing, although in most cases the first steps to establish them have already been taken.
14. Several interlocutors pointed to domestic violence as a situation where some progress has started. This has occurred not only because of the concerted efforts of activists, but also because high ranking Government officials have been actively engaged on the matter.
15. I will now set out my preliminary findings as far as the protection of the right to life in Papua New Guinea is concerned in a direct and forthright way, to make sure the challenges are confronted in a head-on way. It is the nature of the mandate that the focus is primarily on the problematic areas. This invariably paints a grim picture. This is done, however, in order to facilitate a process of comprehensive change which, in my considered opinion, is not only necessary but also imminently doable.
Systematic challenges encountered
16. The number of the population, at around seven million people, is relatively low for such a large landmass. The population is largely rural (only 15% urbanization). The level of literacy is around 70%. A large part of the country is difficult to reach, and is occupied by communities largely closed to the outside world. There are more than 800 distinct languages and over 200 cultural groups.
17. I encountered numerous references during my visit to the role of wantok in PNG society; the kinship of people from the same clan or group, whose customs and existence is often stronger than that of the law and the State.
18. There were also many references to the tradition of “payback” between individuals or groups. Many cases were encountered where what would in other societies be regarded as serious crimes, leading to punishment by the State, are seen as solved once the perpetrator has paid compensation to the family of the victim. In the context of the right to life this means that there is often impunity in the case of murder.
19. Impunity is further enhanced by the fact that many cases are not reported because what happens in the group stays in the group. Witnesses are often reluctant or scared to testify. Police, prosecutors and judges are part of the community and are likewise affected.
20. Of special importance to the right to life is the fact that there is a strong belief in the power of the supernatural in large – and seemingly growing – parts of the population, and in the consequent perceived need to defend oneself and one’s group against such powers – often by using deadly and indeed brutal force.
21. PNG is in many ways, however, a country of paradoxes. While the above represents one aspect, the close ties of people, respect for each other, and commitment to the common good, and a desire for the society to move away from outdated practices is also visible in abundance.
Use of force by the police
22. The right to life is protected in section 35 of the Constitution. It may be limited in certain circumstances, amongst which is the use of reasonable force. Police are authorized to use force when effecting arrests in terms of section 14(1)(c) and (2) of the 1977 Arrest Act.
23. Citizens are entitled to carry out arrests in terms of section 16 of the Arrest Act, but must take the arrested individual to the police as soon as is possible. Section 16 provides that reasonable force in the circumstances may be used to prevent the suspect from escaping. International standards provide that only such force as is necessary and proportionate may be used and further limits intentional lethal force only to those circumstances where it is used to protect life.
24. It seems that neither the police nor the public has a clear idea of when the police is allowed to shoot. The Police Commissioner agreed to provide me with a copy of the new standing orders in relation to use of force. While such a document is important, the test will be its impact.
25. I heard of numerous cases in which police exceeded the bounds of allowable force, some of which resulted in deaths. Several allegations were made of police using excessive force against suspects during arrest, interrogation and pre-trial detention. An area of concern is custody over people in the care of police.
26. It seems that in practice proper record is often not kept of who is held in the cells, why they are held, for how long, and their medical conditions. I have been informed of cases where police brought wounded individuals to police lock-ups and failed to provide medical assistance. Cases were also mentioned where police had used excessive violence in carrying out raids of illegal informal settlements.
27. The police is widely perceived as prone to use of high levels of unwarranted force. Several reasons were encountered. These range from their own poor working and living conditions; the fact that they are understaffed; they have to assert themselves in a violent environment; the wantok system where they protect their own; corruption; and in some cases members of the police themselves participate in violence related to witchcraft and sorcery accusations.
28. There seems to be a widespread perception among the police that human rights and the police are opposing sides, instead of an understanding that the function of the police is to protect human rights.
29. The police receive limited training in the area of human rights. I was told that the intention is to increase the numbers of the police force from 5 300 to 8 000. This is a significant and a welcome increase, and in order to ensure that a new culture is created, and the old one is not merely transferred to the new arrivals, this new group will have to be targeted for special human rights training. The Police Commissioner assured me that a stronger human rights approach will be taken to policing, including in the training of new recruits.
30. I was told about an initiative in Simbu Province in 2009/2010 when NGOs provided training to the police on human rights, which for a period of time had a positive impact.
31. Having said the above, I must state that I was impressed by the level of professionalism and openness to reform displayed by the top leadership of the police during our discussions.
Killings by non-State actors
Sorcery and witchcraft accusations related violence
32. One police station commander said “sorcery related violence is all over the place”, and that appears not to be too far off the mark. The pattern is that a person dies, and another is identified as having caused it and is attacked by a group of community members.
33. The reality of the terror, pain and suffering and social disruption caused by sorcery and witchcraft is only fully understood when one is confronted with the family of victims and with the survivors who carry the scars of attacks. By its very nature, the identification of specific people as witches or sorcerers will be arbitrary and based on subjective whims, and according to many interviewed it is motivated by considerations such as jealousy; greed (e.g. wanting the property of the soon-to-be deceased); aimed against those who do not fully fit in (even at the level of not showing enough grief when someone has died) or getting rid of outsiders, the old and marginalized, often focusing on women. It is a vicious practice.
34. It is, however, also very deeply engrained, being rooted in all-defining world views that are shared by and rallied around by entire communities. It often occurs in isolation from the outside world, and is not reported.
35. More will be said below about measures that can be taken against violence inspired by these beliefs. However, the primary focus should be on eradicating the violence, not necessarily the beliefs.
36. It was mentioned on more than one occasion that police are reluctant to intervene as they themselves are members of the community and could face retributive attacks, or in fact fear the alleged sorcerer as well. Sorcery-related killings are generally conducted by a group of people. In those cases where perpetrators are apprehended it is often only those who were involved in the actual killing that are charged, rather than the instigators of the violence, although the law is flexible enough to allow that.
37. It appears that the law may offer some relief to those who are accused of sorcery, but it is used on a very limited scale. A Public Solicitor in Kundiawa told me that he had helped four (old) people to bring civil defamation suits in such cases. A magistrate told me that she has used section 7 of the Summary Offences Act, which prohibits the use of “threatening or abusive words” in cases where one person called another a sanguma. This results in a fine or compensation. While these cases are exceptions, they do provide a starting point.
38. While there are different views in the legal profession, a senior judge has told me that in most cases of sorcery-related killings the motive is seen as an aggravating circumstance. This appears to be a sensible approach to follow.
Killings resulting from Tribal Fighting
39. Tribal violence traditionally occurred in the villages. However, it has found its way into cities as well. Tribal fights occur regularly and can be triggered by varying reasons, including: sorcery, land and territory-related issues, issues of jealousy and inequality. Payback violence is regularly cited as arising from tribal disputes.
40. Tribal violence has become increasingly violent over the years as members of tribal communities have greater access to firearms and are thus more likely to cause deaths.
41. Problems arise in relation to prosecuting perpetrators of violence due to the problem of ensuring witnesses in support of the prosecution, who fear payback for their conduct.
42. Tribal disputes are often brought before the Village Courts to be resolved, rather than in court. In Goroka, a Peace Park has been established. This is an open piece of land where village court magistrates, the tribal groups involved, police, etc. meet to mediate the problems and reach a settlement. Generally, payment of compensation is offered as a resolution to the dispute, however, communities may not be satisfied with the compensation offered, which could give rise to new fighting.
43. Domestic violence and rape are widespread and large concerns in the country. Whilst they may not always result in death, the threat thereof remains.
44. The Government has taken positive steps in addressing violence against women, including the involvement in initiatives to highlight the problems relating to gender-based violence and notably the passing of the Family Protection Bill in September 2013, which will criminalize domestic violence.
45. In respect of all three items listed above there is a need for much greater education and awareness. Positive values should be included in the curriculum of schools, for example in the life orientation courses.
Private security firms and the right to life
46. Private Security Companies (PSC) are widespread in PNG. There are more employees of PSCs than there are police officers in the country. According to the Security Industries Authority there are approximately 400 licensed security companies in PNG with approximately 20,000 employees. At the moment the number of police is approximately5300, though it is projected to be increased to 8000by 2015.
47. PSCs are governed by the Security Protection Industry Act, 2004. It contains requirements for the granting of licenses, in particular, as regards training. Licensed security officers and security guards may also undertake duties related to crowd control. In terms of section 71 of the Act, a firearm may not be issued to any person licensed under the Act – only in exceptional circumstances may an application be made by a Class A license holder or a security office under its employ to the Registrar of firearms for the issue of a firearm.
48. I was informed of cases in which PSC employees used excessive force and, in some instances, their conduct resulted in the death of individuals. There were additionally several complaints that PSC employees do not receive appropriate training and are often employed merely as a result of knowing someone in the organization, regardless of their skills. Members of the police indicated that PSCs do not have manuals or standing orders guiding their conduct and allow for anyone to join. Whilst the Security Protection Industry Act sets out provisions relating to training and places constraints on the authority granted to PSCs, the information received from witnesses regarding excessive use of force by PSC employees renders it unsure whether the Security Protection Industry Act is actually properly implemented especially insofar as training is concerned.
49. Several stakeholders stressed the need for a regulatory framework for PSCs. Others say that PSCs are an indictment on the state and its duty to provide security and send the wrong message to the community who already has to deal with over-armed police. One of the problems presented by PSCs was evident from the fact that I was unable to speak to G4S about Manus Island – while they perform functions that the State would normally perform, they are not accountable in the same way.
50. There are, however, positive aspects, for instance it was mentioned that there have been instances in which PSCs have turned up at domestic violence complaints before the police have done so. As a practical matter the police is not able to perform its duties to the full, and in that sense are assisted by the PSCs.
51. Regardless of whether PSCs are purely private enterprises, the State has an obligation to ensure the right to life of its citizens. This includes taking measures to ensure that those carrying out policing tasks do so only after appropriate training and where they act outside of the law, that they are held to account.
52. There is currently a move to amend the Security Protection Industry Amendment Act and the Security Industries Authority as advertised that all interested parties may deliver their input. This is a prime opportunity for stakeholders to make their voices heard and to actively contribute to the formulation of the law.
Institutions and procedures for protection and accountability
53. One of the main problems relating to the police that has been highlighted, is a lack of resources, both in terms of human and financial resources. The number of officers has increased marginally since independence, whilst the population has tripled. Police are placed in substandard housing, receive low pay and require new uniforms, this lowers their morale and motivation to perform as best they can. Addressing these issues could already have an impact on police behavior.
54. Police currently do not receive appropriate training. I was informed that human rights in the Constitution are taught to police. However, from interviews conducted the impression was that a human rights course does not form a memorable part of the training. Minister Kua has said that training of police is insufficient and he is pushing to increase the current six month training period to 18 months and has recognized that refresher courses are very valuable. I undertake to explore options for the UN to assist in this regard.
55.A general culture of accountability for violent crime is essential for the protection of the right to life. On several occasions I heard that police either do not carry out investigations, or when they do these are not done properly. In some instances petrol money must first be paid to the police before they are willing to go out and investigate matters and in some cases have refused to carry out an arrest unless they first receive payment.
56. There have been many allegations that police obtain confessions through coercion – in some instances this has resulted in cases being thrown out for lack of evidence as the confession is inadmissible. In other instances, I have been informed of a practice termed “snake bail” in terms of which the police arrest an offender for a serious offence, instead a lesser offence is recorded and on which basis the perpetrator is released. Concern was also expressed to me whether the coroner in practice, investigates every death in custody. Police must carry out investigations properly, ensure that cases are brought to court and that adequate evidence is presented to ensure proper prosecutions.
57. In some areas of the country there is Community Auxiliary Police (CAP). I heard that the majority of CAP sections were closed down throughout the country due to complaints of abuse by members of the CAP. The CAP in Bougainville, supported by New Zealand, is notable in this regard. The Police Act established CAP in terms of which the CAP is afforded the same powers as those of the ordinary police force, however, they remain unpaid unless otherwise provided for (section 129(1)) and are limited in that they are confined to the geographical area in which they have been appointed (section 127). In Bougainville there are approximately 337 members, all of whom are paid staff. Some have suggested that the training of the CAP is better than the police – every month a CAP officer can train on a particular topic. Initiatives based on the Bougainville model could be considered for other areas in the country.
58. Police mentioned that whenever there was a discharge of a firearm, this had to be reported. It was acknowledged that on occasion police officers violate the law, but that such delinquent officers are brought to task. This picture is very different from the information received from victims and other stakeholders. I heard many cases of blatant use of excessive force after which no action was taken to hold the police officer to account.
59.Complaints against police are dealt with by the Internal Investigation Unit, which carries out investigations in cases where complaints have been lodged against the police. I was informed by the Police Commissioner that the Internal Investigations Units are independent from police stations. However, I have similarly heard that in practice complaints have to be lodged at the police station which may dissuade victims of police abuse from submitting complaints as they have to go to the very place from which they have been abused. I heard of one case, in particular, where the victim was too afraid to go to the police to lodge a complaint due to threats he had received. Similar internal investigation processes are provided for the Correctional Services. However, it appears as though Correctional Services officers are rarely, if ever, prosecuted or convicted.
60. In most cases, investigations are initiated only when a person has lodged a complaint. There have been allegations in various parts of the country that police do not wear identification badges, and in some instances do not even wear uniforms. This means that it will be difficult for a victim to lodge a complaint. Where complaints have been lodged, I have been informed they are rarely followed up and delinquent officers are seldom investigated, charged or convicted. Other police are unwilling to testify against their colleagues. NGOs act as a good watchdog over police and given the difficulties involved in suing police, can put a damper on their powers.
61. There is a need to strengthen the internal investigative system. In 2007 a memorandum of understanding was concluded between the Police and the Ombudsman Commission which makes provision for joint investigations to be conducted by the Ombudsman Commission and the Police Internal Affairs officials into allegations of police abuse, including brutality and human rights violations. In terms of this agreement the Ombudsman will oversee internal investigations which will be undertaken by the police. This is an important function.
62. I was informed that a process in under way to turn this memorandum of understanding into new legislation on the relationship between the Internal Investigative Unit and the office of the Ombudsman. This offers an opportunity to strengthen the system. It is worth considering enhancing the independence of the person heading the Unit, for example, by providing that he or she has special powers and reports directly to the Commissioner of Police. Likewise, it should be investigated whether stronger capacity should be created in the capital to investigate allegations of the involvement of members of the police in the serious misuse of force.
63. Court proceedings take long to conclude. Some serious cases can take up to three years before they reach the court. There are in excess of 4000 arrest warrants currently outstanding, some of which date back to the 1980s.
64. There is concern about the lack of public awareness of human rights and the mechanisms in place to protect them. Lack of knowledge of a right is tantamount to not being afforded that right at all. It is thus imperative that human rights awareness and education is carried out throughout the country, amongst schools, law enforcement officers and the greater public. Similarly, it is futile to have mechanisms in place which nobody is aware of.
65. A positive initiative that few seem to be aware of is the Human Rights Track of the courts. In terms of section 57 of the Constitution of PNG, human rights contained in the Constitution are enforceable through the National and Supreme Court. The Human Rights Track deals with court cases relating to the rights contained in the Constitution. Rule 6 of the Rules of Court elaborate upon section 57 of the Constitution and establish standing before the court in respect of a broad range of actors inter alia any person or body with an interest in protecting and enforcing human rights and international organisations, such as the UN. The Human Rights Track is user-friendly and enables a host of people to bring human rights cases to the court. However, there is a lack of awareness surrounding it.
National Human Rights Institution
66. National human rights institutions (NHRIs) play an important role in many societies around the world, in a promotional as well as a protective function. The idea to establish a NHRI in PNG has been accepted for long time ago. This idea should now be implemented.
67. The Government should also give strong consideration to establishing, at the same time, a provincial office of the NHRI in at least one province, for example Simbu. Among other things, such a branch can play an important role in dealing with the issue of witchcraft and sorcery accusation related violence in that province.
68. During my visit to Kundiawa I met with several human rights defenders and was impressed with the work they are doing, under difficult circumstances. Their hand will be greatly strengthened if a provincial branch of the NHRI is established in Simbu Province. It will be of particular benefit if this branch has the services of a human rights lawyer.
Human Rights-focused Non-Governmental Organization
69. There is not a well-established, general human rights NGO in the country. Part of ensuring accountability of the police and others would be that they know someone can take up the cases of the people they interact with and who can serve as watchdogs about the policies followed. The same applies to the absence of a legal advice centre for the indigent. There is a clear need for both.
70. The ideal would be that a local NGO will be established; in addition to that, an international human rights organization could consider setting up an office. In this regard, the University of Papua New Guinea can play a role on both fronts – by creating a law clinic and through establishing a centre for human rights.
Access to lawyers
71. There is a limited number of lawyers available to provide assistance to indigent individuals. The public solicitor provides free legal assistance in criminal matters to those that face a sentence of two years or more and are unable to afford another lawyer. Private lawyers are expensive and very few practice criminal law.
72. Few lawyers are interested in joining the Office of the Public Solicitor due to poor benefits, in particular, inadequate housing. Improving the benefits could attract further solicitors country wide to ease the workload of the existing ones. Civil society should also make efforts to obtain funding to establish an NGO with human rights lawyers. The possibility of establishing a pro bono system should be considered. This is an area in which the Special Rapporteur has noticed a vast vacuum and had constructive discussions with the Law Society.
Witness and victim protection
73. Often witnesses are reluctant to come forward due to intimidation. There is a fear amongst some witnesses that should they testify against someone, the rest of the group to which the accused belongs will view this as a wrongdoing and take revenge. This need not be immediate, and may be directed at either the witness or someone in his/her group. This system of payback has also been raised by some interviewed as a reason why a standard witness protection programmes would not be feasible in PNG. The witness would have to be assured that he/she would receive protection for him/herself as well as for family members for a very long period of time. Resources are not available to provide the level of protection that witnesses will require.
74. Similarly, the country does not presently have a victim protection programme. While there are bound to be problems with such programmes where the victim is part of a closely tied group, and there may be retaliation against members of his or her extended family, it may in some cases save lives.
75. I was told about a “rapid response” initiative in Simbu Province where NGOs help to send people who are accused of sorcery to another part of the country.
The University of Papua New Guinea (UPNG)
76. It is the experience worldwide that universities are invaluable resources to societies that wish to move their human rights agenda forward. They educate young people who staff the system; keep in touch with international developments; do research; advise role players, including the government; inform the public; and in some cases can assist with reporting to treaty bodies and other international bodies. It will be a significant development if the University were to develop human rights capacity – ensure there is a lecturer dedicated to this topic – and include human rights in the curriculum, perhaps establish a centre for human rights, as mentioned above (see heading Human Rights NGO). It should also ensure that its students participate in international human rights events (such as international moot courts).
The United Nations
77. The United Nations Office of the High Commissioner for Human Rights (OHCHR) currently has two professional staff in PNG. It will be of great value if a fully-fledged country office of the OHCHR were to be put into place in the country. Such a team will be a valuable partner for many local human rights initiatives, including the establishment of a NHRI.
The death penalty
78. During my visit, I was informed about the legislative amendments certified in September last year to the Criminal Code on the death penalty, which inter alia expands its application by two, allowing it in respect of a total five criminal offences, including aggravated rape and killings related to sorcery accusations. There are various allegations in the country about the Government’s intention to start executing the capital punishment as a response to the high level of violence in the country. As far as I am informed, 13 individuals are on death row.
79. While I acknowledge the magnitude of the challenge that the Government faces when addressing the high levels of killings and violence in the country, I am of the opinion that the death penalty is not the adequate answer to this situation. It provides a false sense of security and diverts attention from the real long term solutions such as better policing, development and education.
80. At present, Papua New Guinea is considered a de facto abolitionist State at international level with regard to the imposition of the death penalty. The last execution in the country occurred in 1954. As a consequence, Papua New Guinea stands among the majority of countries worldwide who do not resort to the use of capital punishment.
81. I strongly encourage the Government to maintain this international positioning of Papua New Guinea, and refrain from any use of the death penalty. There is a sustained global trend to move away from the death penalty because its weaknesses are now widely recognised.
82. From the point of view of international law on the imposition of the death penalty in countries which have not yet abolished it, I am concerned that the current content of the legal provisions in Papua New Guinea, as amended last year, and their implementation would lead to numerous violations of international standards in this regard, in case the death penalty is executed.
83. In this regard, international law requires that the death penalty may be imposed only in a context of a stringent functioning of the law and order system, so as to ensure the highest respect of due process and fair trial guarantees for the defendants, at least equal to those provided in article 14 of the International Covenant on Civil and Political Rights . During my visit, I was informed about numerous shortcomings persisting in this field in Papua New Guinea, such as extraction of confessions under duress, ill-treatment of persons in custody, lengthy proceedings, or high levels of corruption among various authorities. The imposition of the death penalty in such conditions would be violating international law.
84. Furthermore, the right to appeal is a crucial right that needs to be applied to all defendants. According to the information I received, at least one of the 13 individuals who is currently on death row received a death sentence on appeal before the Supreme Court. I was informed that the decisions of the Supreme Court in Papua New Guinea cannot be appealed. If this is the case, the execution of those who were sentenced to death at the level of the Supreme Court only, would be in violation of international law, if their right to appeal the death sentence is not ensured.
85. International law also requires that the death penalty is imposed only for the most serious crimes, which is interpreted to include only the crime of intentional killing. The current domestic provisions providing for the death penalty for the offences of aggravated rape, piracy or treason, are thus contrary to international standards, unless they result in intentional killing.
86. The legal framework regarding the death penalty in Papua New Guinea apparently also lacks provisions that would prohibit the imposition of the death penalty against juvenile offenders, pregnant women, new mothers, and persons with psycho-social disabilities, thus opening the avenue for another violation of international standards in case such individuals are imposed the death penalty.
87. Furthermore, the current text of the Criminal Code Amendment Act, providing for the death penalty in cases of wilful murder, killings related to sorcery accusations and aggravated rape may be interpreted as imposing the capital punishment in a mandatory way. The mandatory imposition of the death penalty is contrary to international standards.
88. Furthermore, with regard to the argument that the death penalty would deter the society from further violence, I remain unconvinced of such possible effects. In addition to studies at international level which prove that the death penalty is not necessarily an effective deterrent of crime, several interlocutors shared with me the opinion that the death penalty actually might entail in Papua New Guinea further killings, given the spread of the so-called “pay-back” culture requiring an individual to return to other persons the same level of treatment that he or she received. While I condemn the existence of the “pay-back” culture in all its forms, I acknowledge that its scale in Papua New Guinea might lead to further killings in case the death penalty is executed. I heard also from some members of the judiciary that they would be very cautious in imposing the death penalty, due to fear of lethal reprisal against them of their families.
Role of extractive industries
89. Space does not permit a full discussion of this topic, but it is important to raise the point. While the extractive industries will be an important component of the development of the country, they pose significant risks to the protection of life. In the extreme case, the history of Bougainville is a telling reminder of the dangers associated with exploitation where the underlying legal and normative framework has not been settled – which is indeed the broader point of this report.
90. The stakes at play are high, as are the risks that government forces or PSCs will become entangled in the protection of the underlying interests through the use of force. This underscores the need for discipline and control in these sectors.
Killings during the crisis in Bougainville
91. An important element of my visit was to travel to the Autonomous Region of Bougainville to examine potential progress in the processes of peace building and redress following the conflict that erupted in 1989 and lasted 10 years, taking an unaccounted number of lives and resulted in a yet unknown number of mass graves.
92. One of my predecessors visited the region in 1995. In his report to the United Nations Human Rights Commission in 1996, he presented a comprehensive overview of the conflict and violations of the right to life, as well as made recommendations related to the killings that occurred during the crisis, and namely on the peace and reconciliation process, the need for education and training, and justice matters. My visit was thus an opportunity also to examine follow-up to those recommendations.
92. Important developments have occurred since 1995 so as to build peace in this region. A Peace Agreement was signed in 2001, followed by elections in 2005 leading to the establishment of Autonomous Bougainville Government. Among most recent initiatives, I note the emergence of a Peace and Security Strategy Framework in 2012, and the decision of the United Nations Secretary General in 2013 to make Bougainville benefit from the United Nations Peace Building Fund.
93. A considerable number of grievances still persist, however, and may need application of various transitional justice measures. Among those, I was informed, in particular, of the needs of many families of disappeared persons to locate the graves of their relatives and ensure proper burial. The International Committee of the Red Cross has just launched an initiative in this regard, and I will follow with interest its outcome.
Recent violence in Manus Regional Processing Centre
94. I visited the Regional Processing Centre for asylum seekers on Manus Island, to gain a better understanding of the events of 16 to 18 February 2014. I was not allowed to enter the camp itself, or speak to any of the detainees, but I did have the opportunity to discuss the riots and violence that left one detainee dead and around 77 others injured with the relevant authorities from Australia and PNG.
95. As far as such a brief and limited visit allows one to come to a conclusion, it is my impression that the situation was caused primarily by the fact that the detainees find themselves in a possible dead-end street. They are on the one hand told by the authorities in the camp that the will be allowed to resettle in PNG if they qualify as refugees, but on the other hand they receive information that the highest authorities of the land say this is a misunderstanding. This uncertainty is fueled by the fact that the processing itself is very slow.
96. Various investigations are taking place, from both sides. The credibility of these investigations will depend inter alia on their transparency. The outcome of the ballistic evidence as to the nature of the wounds of those who were hurt will be important to help evaluate the claims by the police that only warning shots were fired. The claims by the police that allegations that a bullet is lodged in the buttocks of one of the injured cannot be true because they use high-velocity firearms which pass through a human body with great ease, raises the question why less lethal weapons are not used in what amounts to a – foreseeable and foreseen – situation of crowd control.
97. In the meantime it should be noted that the situation is clearly very unhealthy and volatile. Nothing has changed since February to alleviate the situation. Both States remain responsible to protect the human rights – including right to life –of the people in the camp.
98. While the above-mentioned are formidable challenges, I remain convinced that one of the attractions of investing time and effort and resources into advancing the cause of human rights in PNG is that the prospects of a return on that investment in the sense of having a positive impact are probably greater than in many other comparable situations. It offers the opportunity to make a significant contribution to setting a vibrant and burgeoning society on a solid human rights foundation. The Special Rapporteur wants to urge the Government of PNG to take a visionary approach in this regard, and likewise extends a call to the international community to support the government of PNG in achieving this objective.
99. It is clear from the above that a number of steps should be taken to move the human rights agenda and, in particular, the right to life agenda forward.
A/ To the Government of Papua New Guinea:
1. In collaboration with other stakeholders, a focused, realistic human rights strategy should be developed. Some of the further recommendations in this statement and the future report should be included in this strategy.
2. As part of the aforementioned recommendation, a national campaign should be developed to combat witchcraft and sorcery accusation related violence. This campaign should be aimed at sending out a clear and concerted message that there is no room anymore for violence that is based on such allegations, and should amongst others involve the high-level representatives of the Government, the churches, the education system, the prosecutors and public solicitors, members of the village courts, and the media. The possibility of calling a convention of interested parties where this campaign is launched should be considered.
3. As a matter of priority, a national human rights institution (NHRI) should be established. Serious consideration should be given to establishing a provincial office of the NHRI, for example in Simbu Province.
4. Human rights and in particular the importance of the right to life should be included in the curriculum of all schools. Necessary steps should be taken to ensure that the school curriculum includes education on the unacceptability of all forms of inter-personal violence, in particular in the context of accusations of sorcery, tribal affiliations and domestic violence.
5. A programme to promote and raise awareness on human rights amongst adults as well, including the system of Human Rights Track of the National Court, should be established.
6. Better and regular training on human rights for police, including refresher courses, should be ensured. The curriculum and training of the police officers should include courses of human rights and training on the use of firearms.
7. Increased resources should be made available to the police to strengthen its capacity in terms of both numbers and quality of the duty performed.
8. A proper legal framework for the use of force by and accountability of private security firms should be established.
9. Measures for stricter gun control should be strengthened.
10. Witness and victim protection schemes should be established.
11. The effective and independent functioning of the Internal Investigations Unit within the Police, and the Ombudsman Commission should be strengthened.
12. Papua New Guinea should maintain its de facto abolitionist approach to the death penalty, with a view towards its abolition de jure.
13. Papua New Guinea should continue and strengthen engagement with United Nations human rights bodies, in particular through:
a) Ratification of the Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women;
b) Ensuring regular and timely reporting to the human rights treaty bodies;
c) Continuing engagement with Special Procedures of the Human Rights Council, in particular through receiving experts on official visits and implementing the recommendations made during those visits;
d) Putting in place a mechanism of regular and timely reply to the communications sent on individual cases by the Special Procedures experts.
14. Together with the Government of Australia, clarify the position of the asylum seekers at Manus Island as a matter of priority. Investigations into the February riots should be independent and transparent.
B/ To the United Nations
15. The United Nations Office of the High Commissioner for Human Rights should increase its presence in the country and establish a country office in Papua New Guinea, as well as equip it with a mandate of human rights monitoring and technical assistance, as well as adequate resources.
C/ To the civil society and other actors
16. The Law Society in Papua New Guinea should consider ways in which their members can get involved in human rights work, including on a pro-bono basis.
17. At least one local non-governmental organization (NGO) focused on human rights should be established. International human rights NGOs should consider setting up an office in Papua New Guinea.
18. A law clinic scheme aimed at providing legal aid to the indigent should be established.
19. The University of Papua New Guinea should regard the development of its human rights capacity as a top priority.
See United Nations Safeguards Protecting the Rights of Those Facing the Death Penalty
A/HRC/WG.6/11/PNG/1 para 101