COMMISSION ON HUMAN RIGHTS STARTS DEBATE ON CIVIL AND POLITICAL RIGHTS

9.04.1999
MORNING
HR/CN/99/28

Commission Hears Statements from Working Group on Arbitrary Detention and Special Rapporteur on Torture

The Commission on Human Rights this morning opened its discussion on civil and political rights and heard statements by a member of its Working Group on arbitrary detention and by its Special Rapporteur on torture.

Louis Joinet, member of the Working Group on arbitrary detention, said the Working Group had received total support from the Governments of Peru, Romania, the United Kingdom and Indonesia during its missions.

With regards to Peru, Mr. Joinet said that despite positive developments, the Working Group was concerned about insufficient independent guarantees for the judiciary in relation to military jurisdiction. Concerning Romania, the Working Group had concluded that the minimum guarantees to detainees proposed in its annual report must be afforded. The Working Group acknowledged with satisfaction that the Government of the United Kingdom had responded substantially and constructively to its recommendations. As for Indonesia and East Timor, the priorities remained the Liberation of prisoners detained under the previous regime of President Suharto; the reinforcement of the independence of the police and its separation from the army; and the reform of the Penal Code on Procedures.

The Representative of Peru said the Working Group had noted that while there had been abuses, they had been isolated acts which were not representative of the actions of the Government of Peru. He cited numerous measures which regulated the juridical code and penal conditions in accordance to the recommendations of the Working Group.

The Representative of Romania stated that his country had taken resolute steps in line with the conclusions and recommendations put forward by the Working Group. Romania had closed down the rightly criticized Center for Illegal Migrants at Giurgiu and had passed reformed laws on the statute of aliens.

Nigel Rodley, the Special Rapporteur on torture, commenting on his mission to Turkey, said that while resorting to the most brutal techniques had diminished in Turkey, it was also clear that these practices had persisted in some parts of the country and ill-treatment amounting to torture still occurred in other parts of the country. His main concern remained the question of impunity.

Ivan Tosevski, of the Board of Trustees of the United Nations Voluntary Fund for Victims of
Torture, gave a review of the status of the Fund. He said a total of $ 8.2 million had been requested this year, while contributions paid to the Fund to date by 32 Governments, one non-governmental organization and four individuals amounted to $ 5.8 million, including $ 3 million from the United States which was the largest donor.

Also this morning, the Commission concluded its debate on economic, social and cultural rights. Fatma-Zohra Ksentini, the Special Rapporteur on the illicit movement and dumping of toxic wastes, spoke on the consequences of such actions on human rights. A number of non-governmental organizations (NGOs) cited violations of economic, social and cultural rights in various countries.

The following countries addressed the Commission: Japan, Germany (on behalf of the European Union), El Salvador, Peru, Venezuela, the Russian Federation, Norway, Romania, Latvia, Egypt, Denmark, Georgia, Honduras and the Netherlands.

A number of NGOs also spoke: Liberation, Indian Movement 'Tupaj Amaru', Centro de Estudios Europeos, International Educational Development Inc., International Human Rights Law Group, International Movement ATD Fourth World, International Commission of Jurists, Muslim World League, World Federation of Trade Unions, World Muslim Congress, International Indian Treaty Council, and the International Association against Torture.

The Commission will continue its debate on civil and political rights at 3 p.m. this afternoon.

Civil and political rights, including the questions of torture and detention; disappearances and summary executions; freedom of expression; independence of the judiciary, administration of justice, impunity; religious intolerance; states of emergency; and conscientious objection to military service. The Commission has before it under this agenda item a report (E/CN.4/1999/54) by the Secretary-General on the question of torture and detention and the status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Commission against Torture held its twentieth
and twenty-first sessions at the United Nations Office at Geneva from 4 to 22 May 1998 and from 9 to 20 November 1998, respectively. In accordance with article 24 of the Convention, the Committee submitted its annual report, which covered the activities of the Committee to States parties and the General Assembly at its fifty-third session.

Also before the Commission is a report (E/CN.4/1999/55) by the Secretary-General on the United Nations Voluntary Fund for Victims of Torture. Included is the annual report of the Fund, the financial status, the contributions paid and pledges made, as well as the fund-raising, and needs assessment.

The Commission is considering a report (E/CN.4/1999/56) by the Secretary-General on arbitrary deprivation of nationality. It calls on all States to refrain from taking measures or from enacting legislation that discriminated against persons or groups of persons on grounds of race, colour, gender, religion, or national or ethnic origin. In pursuance of this resolution, a note verbale was addressed to Governments on 27 August 1998 and a copy of the resolution was transmitted to the appropriate mechanisms of the Commission and the pertinent United Nations treaty bodies. By 7 December 1998, replies were received from the Governments of Azerbaijan, Denmark, Estonia, Ghana, Kuwait, Monaco, Portugal, the United Kingdom and Northern Ireland and the United States. These replies are summarized in this report. Also being considered is an addendum report (E/CN.4/1999/56/add.1) by the Secretary-General on the arbitrary deprivation of nationality. It includes information submitted by the Russian Federation. Addendum report (E/CN.4/1999/56/Add.2) includes the response of Azerbaijan on arbitrary deprivation of nationality.

The Commission will also take up a report (E/CN.4/1999/57) by the Secretary-General on the
question of independence of the judiciary, administration of justice, and impunity. By its resolution 1998/53 of 17 April 1998, the Commission noted the report submitted by Louis Joinet pursuant to Subcommission decision 1996/119 of August 1996 and the set of principles for the protection and promotion of human rights through action to combat impunity annexed to the report. The Commission requested the Secretary-General to invite States, international organizations and non-governmental organizations to provide him with their views and comments on the report and its annexed principles.

Before the Commission is a report on the question of torture and detention (E/CN.4/1999/59) from the Chairman-Rapporteur of the Working Group on the draft optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This report outlines the organization of the session, the consideration and drafting of paragraphs and articles of the draft optional protocol, future work, and the adoption of the report.

Also before the Commission is a report on the question of torture and detention (E/CN.4/1999/61) from the Special Rapporteur on this issue, Nigel Rodley, which outlines the mandate and activities of the Special Rapporteur, information with respect to various countries, and conclusions and recommendations. The report concludes that the most difficult area in which to identify trends and developments is with regard to the incidence of torture and similar cruel, inhuman or degrading treatment or punishment. Among other recommendations, it calls on all States to ensure that they have in place legislation that would permit them to take jurisdiction over perpetrators of human rights crimes, including torture, genocide, crimes against humanity and war crimes.

The Commission is also taking up a report from the Special Rapporteur on torture
(E/CN.4/1999/61/Add.1) on his visit to Turkey. Mr. Rodley concludes that he needs much more time and travel within the country for a more complete assessment of the situation but summarizes some of the following points: Turkey is not immune from the turbulent and religious forces prevalent in the region and cites the Kurdistan Workers' Party (PKK) as an example of acts of terrorism which has been widely and rightly condemned; that reports of the incidence of torture and similar ill-treatment were not consistent with torture being widespread and systematic and for others, the situation had improved significantly; legislation should be amended to ensure that no one is held without prompt access to a lawyer; legislation should be amended to ensure that any extensions of police custody are ordered by a judge; amendments to procedures of prosecutors and judges as well as methods of investigating allegations; and the institution of an independent body to review all
cases in which the primary evidence against convicted persons is a confession allegedly made under torture.

Also before the Commission is a report (E/CN.4/1999/63) of the Working Group on arbitrary
detention which outlines its activities, the situation regarding immigrants and asylum seekers. It recommends that the mandate for investigating cases requires a collegiate body, with the
participation of experts from different legal backgrounds; that the problem of immigrants and asylum seekers be dealt with by setting out rational criteria for their entry and rehabilitation and that their detention be resorted to only as a last available measure; and that military injustices be eradicated and an intergovernmental conference initiated on this matter.

The Commission is also reviewing document (E/CN.4/1999/63/Add.3) which is an addendum to the report of the Working Group on arbitrary detention on the visit of the Working Group to the United Kingdom to consider the issue of immigrants and asylum seekers. Matters of concern for the Working Group include: the United Kingdom must observe the provisions of the 1951 Convention relating to the Status of Refugees and the other international instruments to which the United Kingdom is a party. The functioning of the legal regime in the United Kingdom gives rise to specific concerns. The Working Group's conclusions include: that detention should only be for legitimate reasons; that detainees should be informed in writing of the reasons for detention; that they should be given adequate access to their

legal representatives; that alternative and non-custodial measures should always be considered before resorting to detention; and that unaccompanied minors should never be detained. Document (E/CN.4/1999/63/Add.4) is an addendum to the report of the Working Group on arbitrary detention on its visit to Romania. The Working Group notes that it is clear that Romania has a limited capacity for internment of asylum seekers. It concludes that illegal immigrants should be granted the same treatment as those who formally seek asylum. The Romanian Government is requested to ensure that the criminal offence of crossing the border is not made the basis for rejecting the application for asylum. The personnel of the Border Police should be sensitized to the problems arising from the influx of illegal immigrants. The individual refugee is exposed to grave risks of arbitrary detention, and this ought to be remedied. Protection against refoulement should be made to apply to all asylum seekers. All asylum seekers subjected to deprivation of liberty should be granted constitutional protection. Detainees should be provided with the reason of their detention.
Each decision to detain should be reviewed as to its necessity and compliance with international standards promptly. Detainees should be given adequate access to their legal representatives, relatives, and officers of UNHCR. All staff should receive appropriate training.

Statements

LOUIS JOINET, member of the Working Group on arbitrary detention, reported on its mission to Peru, the United Kingdom, Romania, and Indonesia. The Working Group had received total support from the Government of Peru. Despite positive developments, some serious concerns remained. The most serious was due to the insufficient independent guarantees to the judiciary in relation to military jurisdiction which resulted in the Working Group's recommendation that an intergovernmental conference be organized with the aim of renouncing such jurisdiction which represented the base of too many situations of arbitrary detention.

Mr. Joinet said Romania had also afforded the group its full cooperation. The Working Group concluded that the minimum guarantees to detainees proposed in its annual report
(E/CN.4/1999/63) must be afforded. The Working Group also acknowledged with satisfaction that the Government of the United Kingdom had responded substantially and constructively to its recommendations.

Mr. Joinet said the Working Group's report on Indonesia and East Timor had to be delayed until the year 2000 for well understood technical reasons. The full cooperation afforded to the Working Group by the Indonesian Government attested to the seriousness of the authorities toward reform. However, much still remained to be achieved. The Working Group acknowledged the liberation of the detainees under the former Indonesian Communist Party. The priority remained the liberation of detained prisoners of the previous regime of President Suharto; the second priority was the reinforcement of the independence of the police and its separation from the army; and finally the reformation of Penal Code on Procedures.

The Working Group stated that it considered urgent the initiation of a mechanism to vigilantly
follow-up and evaluate governmental compliance with its recommendations.

NIGEL RODLEY, Special Rapporteur on the question of torture, stated that he had received
invitations from the Chinese and Brazilian authorities to visit their respective countries. His request to visit Bahrain was delayed and Tunisia had not yet responded. One of his main concerns remained the issue of impunity which had actually been chosen by the United Nations Voluntary Fund for the Victims of Torture's Board of Trustees as the theme for the next United Nations International Day in support of victims of torture on 26 June.

Mr. Rodley stated that if the numerous recommendations put forward under the Special
Rapporteur's mandate over the years had been implemented, this would have broken through the shield of impunity. Among these recommendations were: that States had to ensure that prolonged incommunicado detention beyond 24 to 48 hours was not permitted; all States at the international level should speedily ratify the Rome Statute of the International Criminal Court; and all States at the transnational level should ensure that they had in place legislation that would have permitted them to take jurisdiction over perpetrators of human rights crimes, including torture.

Mr. Rodley said addendum 1 of his report concerned his visit to Turkey. He had concluded that while the resort to the most brutal techniques had diminished in Turkey, it was also clear that these practices had persisted in some parts of the country and ill-treatment amounting to torture still occurred in other parts of the country.

IVAN TOSEVSKI, of the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture, said a detailed report on the status of the Fund had been made available to the Commission. Last year, the High Commissioner for Human Rights had approved the Board's recommendations for grants to 149 projects submitted by about 100 humanitarian organizations in 53 countries for a total amount of $ 4.2 million. But these awards only met 62 per cent of the requests for grants from various reputable and well-meaning groups and organizations interested in helping torture victims.

Mr. Tosevski said a total of $ 8.2 million had been requested this year, while contributions paid to the Fund to date by 32 Governments, one non-governmental organization and four individuals amounted to $ 5.8 million, including $ 3 million from the United States which was the largest donor. An additional $ 2.4 million in contributions would enable the Fund to meet 100 per cent of the requests. Overall the situation of the Fund would be much better this year, provided that all pledges were paid before the end of April.

FATMA-ZHORA KSENTINI, Special Rapporteur on the illicit movement and dumping of toxic
wastes, said she had listened to the debate on the subject and on her report; she had noted the assertions made by several speakers that transnational corporations should at least respect fundamental human rights and national environmental protection laws. There had been positive developments in various countries and international fora; some encouraging progress, although small, had been made towards compensating victims of such illicit moving and dumping.

Ms. Ksentini said that as for technical cooperation, greater attention should be given to technical information and sharing of experiences. She hoped, for example, that technical assistance could be given to Paraguay to help it cope with its current problems with toxic wastes.

MUNTAR HALEPOTA, of Liberation, expressed concern at the deprivation of economic, social and cultural rights in much of the developing world by their State Governments or as a result of policies of Western powers and monetary institutions. Liberation strongly opposed the proposal by some Governments to write off foreign debts in return for managing the economies of indebted countries. This would formally begin a new process of colonization. It was further alarmed to learn that the International Monetary Fund (IMF) did not concern itself with international policies of a country, especially with regard to the human rights situation, when giving funds. The IMF should know that these funds were often used by Governments to purchase arms which were then used against their own people, as in Burma, Serbia, Pakistan, India, Sri Lanka and Indonesia. In South Asia the most significant development was the 'nuclear explosion' by India and Pakistan. At the same time, vast numbers of children in both countries remained without basic education, access to water and shelter or health.

Mr. Helepota said there were widespread violations of economic, social and cultural rights in Sindh as highlighted in United Nations document E/CN.4.1994/NGO/56. In some countries deliberate policies were adopted to deprive the indigenous languages and cultures from developing and flourishing such as the situation in Turkey where the Kurdish language and culture was denied.

LAZARO PARY, of the Indian Movement 'Tupaj Amaru', said structural adjustment programmes imposed on developing countries had to be studied more carefully; the World Bank and the International Monetary Fund were not helping but rather harming developing countries as the global economy was being liberalized; the phenomenon of foreign-debt burdens was a continuation of the process that began in 1492, when European domination of the Americas began.

Mr. Pary said the external debt of the Third World was some $ 1.8 trillion; the debt represented 123 per cent of Africa's GNP, and significant percentages of the GNP of Latin America and Asia. Debt-service payments were a major factor in perpetuating poverty in the developing world; their application by the countries of the north on the countries of the south amounted to a kind of slavery. Among the populations most damaged were indigenous peoples; they knew what hunger was; a high percentage of them lived in extreme poverty.

LAZARO MORA SECADE, of the Centro de Estudios Europeos, raised the issue of the negative effects of foreign debts on the enjoyment of fundamental rights. Such debts had severely hindered Governments in development. The International Monetary Fund had become the most effective instrument for the imposition of the policies of structural adjustment which diverted funds destined for confronting social problems or toward efforts for social development. The Centro de Estudios Europeos called for international cooperation to confront this alarming trend which continued to cause obstacles to the realization of the fruits of economic, social and cultural rights.

KAREN PARKER, of the International Education Development/Humanitarian Law Project, said the organization was deeply concerned about the effect of economic sanctions on the realization and enjoyment of human rights and the fulfilment of legal obligations under humanitarian law. The sanctions regime imposed on Iraq had clearly failed to ensure the human rights and humanitarian law rights of the Iraqi people. While there may be some political or military sanctions that could legitimately be imposed on Iraq, the excessively over-broad sweep of the economic sanctions may not. Any impairment of the free flow of humanitarian relief violated the Geneva Conventions of 1949 and the additional Protocols of 1977. As early as September 1990 it was clear that the sanctions were creating a humanitarian crisis. In fact many Gulf War casualties were civilians who starved to death as a result of sanctions.

Ms. Parker said it was the duty of this Commission to address the human rights implications of these sanctions in an objective and impartial manner. The fact that the United States unilaterally instigated the sanctions with undue control of the sanctions committee and other sanctions mechanisms needed addressing.

MARGUL HARDEN, of the International Human Rights Law Group, welcomed the Commission and other existing United Nations mechanisms designed to address racism and toxic pollution around the world like the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes. Environmental racism referred to any Government action or failure to act that had negative environmental impact with disproportionate disadvantages. The polluting industries, toxic waste sites, incinerators, oil exploration, and mining operations in the United States were concentrated in communities that were predominantly African-American, indigenous, Latino, and Asian-American. The United States
Government had proven resistant to enforcing laws and unwilling to protect communities of colour from industrial pollution. Communities of colour suffered increasing poverty as a result of industrial exploitation of the environment.