EXPERTS PRESENT REPORTS ON DISCRIMINATION WITHIN THE JUSTICE SYSTEM AND ACCOUNTABILITY IN PEACE OPERATIONS

Sub-Commission on the Promotion and
Protection of Human Rights
55th session
6 August 2003
Afternoon



Chairperson of the Human Rights Committee
Addresses Sub-Commission




The Sub-Commission on the Promotion and Protection of Human Rights this afternoon continued its consideration of the issue of the administration of justice, hearing introductions to reports by Sub-Commission Experts on discrimination within the criminal justice system, and on the accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations. Also this afternoon, Abdelfattah Amor, the Chairperson of the Human Rights Committee, addressed the Sub-Commission.
Leila Zerrougui, Sub-Commission Expert, introducing her report on discrimination in the criminal justice system, said that research carried out so far showed that there was undeniably a racial dimension to discrimination within the administration of justice. Such discrimination was often a manifestation of racism, xenophobia, or intolerance, and foreigners, minorities and indigenous peoples were the most seriously affected. Other persons, such as the poor, disabled or those having a different sexual orientation, were also victims of discrimination and were often subjected to unequal treatment under the criminal justice system.
During a subsequent discussion, Sub-Commission Expert David Weissbrodt stressed the need to look at a frequently overlooked issue – discrimination against convicted persons after imprisonment, which often came in the form of denying such persons the right to vote, to participate in public affairs and denial of social benefits. Such discrimination undermined rehabilitation as well as the goal of keeping people out of prison. Sub-Commission Expert Florizelle O'Connor echoed this sentiment and asked how one could combat the society’s unwritten rule of “once a criminal – always a criminal”. It was important to establish when and how the punishment for a crime ended.
Other Sub-Commission Experts said that it was important to focus further attention on the link between poverty and discrimination. Sub-Commission Expert Rui Baltazar Dos Santos Alves said poverty was the primary cause of discrimination, particularly in Africa. This was not just individual poverty, but poverty of the system as a whole. Without resolving this problem, one could not hope to see an improvement of the criminal justice system.
Sub-Commission Expert Francoise Jane Hampson introduced her study on accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations. The study covered peace support operations, including both traditional peacekeeping and also Chapter VII operations, whether the mandate was only to use force in self-defense or whether it authorized the use of all necessary means. She said that while the structure of operations had been evolving, more and more examples were being provided of cases where the persons associated with such operations had engaged in serious violations of human rights law. However, in most circumstance there was simply no information as to whether any proceedings were brought against them in their home state and, if so, whether the punishment reflected the gravity of the crime.
Commenting on the study, Sub-Commission Expert Vladimir Kartashkin suggested that Ms. Hampson base her examination on the existing relevant United Nations instruments, particularly the United Nations Charter, on how to prevent military operations that were occurring in the world without UN authorization.
Abdelfattah Amor, Chairperson of the Human Rights Committee, also addressed the Sub-Commission, stressing the importance of a dialogue between the Human Rights Committee and the Sub-Commission and raising issues related to methods of work and content. The Committee was now looking at streamlining its work in an attempt to increase its efficiency. Concerning content, he raised issues related to reservations and the authority given to the observations drawn up by the Committee. The observations of the Committee could not be reduced to mere recommendations – they must be implemented by States.
The following Sub-Commission Experts also spoke this afternoon: Emmanuel Decaux, Francoise Jane Hampson, Soli Jehangir Sorabjee, Antoanella-Iulia Motoc, El Hadji Guisse, Lalaina Rakotoarisoa, Asbjorn Eide, Abdul Sattar, Fisseha Yimer, and Soo Gil Park.
The following non-governmental organizations offered statements on the issue of the administration of justice: American Association of Jurists, Japan Federation of Bar Associations, and International Educational Development.
The Sub-Commission will reconvene at 10 a.m. on Thursday, 7 August to continue its consideration of the administration of justice.

Document
Before the Sub-Commission under the administration of justice, there is a preliminary paper by Leila Zerrougui, Special Rapporteur appointed to conduct a detailed stuffy of discrimination in the criminal justice system (E/CN.4/Sub.2/2003/3). Owing to a lack of time the Special Rapporteur is not in a position to submit her preliminary report, but decided to issue the present paper in order to clarify the general approach of the study and its conceptual framework. The paper contains sections such as a reminder of the approach in establishing the framework of the study; and establishment of the conceptual framework for the study. The paper states that a stigmatization circle is detrimental since justice reflects the beliefs, perceptions and stereotypes of society. The preparatory work for the study underlined those factors and highlighted poverty, the burden of the past and the influence of dominant groups as other determining factors in the persistence of discrimination in the criminal justice system. Research carried out thus far shows that there is undeniably a racial dimension to discrimination in the criminal justice system. The Special Rapporteur will show the victimization of groups and persons whose precarious status and rights make them more susceptible to discrimination by analyzing the legal framework of the criminal process and prison administration.

Discussion
ABDELFATTAH AMOR, Chairperson of the Human Rights Committee, stressed the importance of a dialogue between the Human Rights Committee and the Sub-Commission and raised issues related to methods of work and in terms of content. With regards to working methods and the idea of a single report, as suggested in the reforms of the Secretary-General, he stressed that the Human Rights Committee did not accept this idea because of timeliness. However, the Committee did accept the notion of reform and streamlining in an attempt to increase its efficiency. The reports must gradually become more targeted. With regard to States reporting on the implementation of recommendations, he said the procedures had been revised several times in order to allow the Committee and States to maintain an effective dialogue. The revision of the rules of procedure of the Committee would allow it to consider specific situations when needed. Methods of work were important since they allowed the Committee to carry out its work effectively.
Concerning content, he raised issues related to reservations and the authority given to the observations drawn up by the Committee. The Committee, taking duly into account the principles and rules of international law, was competent to consider reservations. The Committee appreciated the compatibility of the reservations with the objective and purpose of the treaty. This position had been implemented both when considering and adopting final comments on reports and when considering individual communications on individual complaints. At first, this stance had given rise to queries from the Commission on Human Rights. However, a joint meeting had allowed the dispelling of misunderstandings. The Committee had managed to explain to the International Law Commissions and the Commission on Human Rights what its intentions were. Positions must evolve in a fluid, specific and focused manner, taking into account the specific situation of the Human Rights Committee. Concerning the authority given to the observation of the recommendations developed by the Committee, he said that the Committee was not a jurisdiction in the strictest notion of the term. However, due to its functions, it was practically a jurisdictional body. It was stressed that the observations of the Committee could not be reduced to mere recommendations. In general, the bulk of States did heed the observations of the Committee, even when they appeared not to be fully convinced of them. Many signs, both of a legal and factual nature, seemed to place the Committee on the verge of general international jurisdiction for human rights.
EMMANUEL DECAUX, Sub-Commission Expert, said that the Human Rights Committee and the Sub-Commission had the same objectives in the promotion and protection of human rights, though they were two distinct United Nations bodies. The different treaty bodies had also been treating different issues in the protection of human rights. The reports presented by States parties dealt with the respective treaties such as against discrimination of women and racial discrimination. The work of the Sub-Commission would be enriched through the exchange of ideas with treaty bodies and other organizations. The Sub-Commission was also scheduled to meet with the International Law Commission during which the issue of reservations on multilateral treaties would be raised.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said that this was the first time, but not the only time, that the Chairperson would address the Sub-Commission. Only yesterday, she had presented her paper on reservations to human rights treaties. The conclusions had been very much in line with those of the Human Rights Committee. It was not necessary to prejudge the questions as to whether there would be different categories of international law. The way in which one applied international law with regard to human rights treaties was what mattered. The International Law Commission would probably find that sooner, rather than later, they would have similar difficulties in assimilating a specific international law and international law in general. She asked whether there was a role for a body such as the Sub-Commission to be invited to make its inputs on such issues. With regard to procedure, she asked that if a State was absent, were non-governmental organizations allowed to participate or was there no external input. How did the Chairperson see the relationship developing between treaty bodies and the Sub-Commission. In view of the comments made by the Human Rights Committee, who took part in the Counter-Terrorism Committee, and could the Sub-Commission play a role in monitoring domestic legislation on anti-terrorism measures?
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said that he was not clear on the source of the jurisdiction of the Human Rights Committee on its decisions requiring States parties to comply with them.
ABDELFATTAH AMOR, Chairperson of the Human Rights Committee, responded to comments and said with regards to the universal ratification of instruments and their implementation that in addition to formal obligations of States, some States had taken into account obligations provided for in instruments they had not signed or ratified. Among the Committee’s work there were general comments of great importance for the Sub-Commission, in particular on articles on states of emergency and on gender equality. Responding to Ms. Hampson, he said the International Law Commission was currently working on the fragmentation of the international law system. The development of international law had allowed an increasing space for human rights law, which used to be closed to it. Producing a general abstract rule was satisfying intellectually, however rigid rules tended to make international law without a soul and removed its flexibility. With regards to the issue of reform, it was certain that the procedures were not always politically innocent. It was important that the trends were clear, whatever the justifications might be. The Committee had to monitor the implementation of the Convention to date. If reports were available, they would be reviewed and if no reports were available, the situation could still be analyzed through various other manners. However, in such situations the consideration of a situation did not occur in public meetings. Until now, this procedure was receiving positive input and it was believed that it facilitated dialogue. In conclusion, he said that there were well-established categories of recommendations that were not easily shifted since recommendations and comments had become increasingly interdependent.
LEILA ZERROUGUI, Sub-Commission Expert, introducing her study on discrimination in the administration of criminal justice (E/CN.4/Sub.2/2003/3), said that the study was authorized with a view to determining the most effective means of ensuring equal treatment in the criminal justice system for all persons without discrimination, in particular to vulnerable persons. Research carried out thus far showed that there was undeniably a racial dimension to discrimination in the criminal justice system. It was an established fact that it was often a manifestation of racism, xenophobia or intolerance, and that foreigners, minorities and indigenous peoples were most seriously affected by such discrimination. Other persons, such as the poor, disabled or those having different sexual orientation were also victims of discrimination and were often subjected to unequal treatment under the criminal justice system.
The problems encountered by the potential victims were often very different, but there were also similarities and common characteristics of the problems. The Sub-Commission’s contribution would be effective only if the study was aimed at dismantling discriminatory mechanisms in the criminal justice system, detecting de jure discrimination in legislation relating to matters of substance and procedure, and identifying good practices already adopted at international, regional and national levels, with a view to reducing inequalities and eliminating discrimination in the criminal justice system.
DAVID WEISSBRODT, Sub-Commission Expert, raised one small aspect of discrimination in the context of the administration of justice that might be included as part of the study. This was a frequently overlooked issue – discrimination against convicted persons after imprisonment. After convicted persons served their sentences and fulfilled the terms of their criminal punishment, they returned to civil society and must be entitled to the rights and freedoms as prescribed in the Universal Declaration of Human Rights. In many instances, discrimination came in the form of denying such persons the right to vote and participate in public affairs. In addition, former prisoners were frequently denied basic economic and social rights accorded to other individuals. Such benefits included public housing, opportunities to obtain private housing, public educational benefits, public welfare benefits and other benefits that proved crucial to creating the favourable conditions necessary for ex-prisoners to reintegrate into civil society. Such discrimination undermined rehabilitation as well as the goal of keeping people out of prison. States were urged to examine their treatment of convicted persons after punishment had been served and to remove official and unofficial practices that discriminated against such persons. The Sub-Commission might wish to collect the international legal principles relevant to these issues so as to help eliminate discrimination against ex-prisoners.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, said that the study of Ms. Zerrougui was an excellent work that had attracted the interests of many people. The Sub-Commission knew the criminal justice systems of Europe, United States and some Asian countries, while the situation in the rest of the world was not clearly known. The Rapporteur should also develop other aspects of the criminal justice system that affected women. The situation of de jure and de facto discrimination in the criminal justice system should also be given wider thought.
FLORIZELLE O'CONNOR, Sub-Commission Expert, said that she agreed with some of the questions for clarifications asked by Ms. Motoc, but she wished to go beyond the legal parameter and to find out if the report planned to go into the attitude. The discrimination that ex-convicts suffered from was not supported in law, but was almost an unwritten rule in society as “once a criminal – always a criminal”. Would research be undertaken on such attitudes, she asked. In some systems, a first offender of a simple offence could have his record cleared after five years. Generally speaking, this topic spoke in a wider sense to the views held in some places on crime and punishment. When and how did the punishment for the crime end.
EL HADJI GUISSE, Sub-Commission Expert, said that any prisoner, once out of prison, had a criminal record which could be an obstacle for him or her to reintegrate into society. For that reason, all forms of discrimination in the justice system that involved keeping criminal records should be eliminated. The criminal record of all those involved in criminal justice should be deleted in order to avoid any discriminatory practices.
RUI BALTAZAR DOS SANTOS ALVES, Sub-Commission Expert, said that with regard to Africa, it was poverty that was the primary cause of discrimination in the criminal justice system. This was not just individual poverty, but poverty of the system as a whole. Without resolving this problem, one could not hope to see an improvement of the criminal justice system. Everything was lacking, not only materials but also human resources. This was a central issue that needed to be examined. Another aspect that could help the situation was improved coordination among actors in the justice system. Judges, prosecutors and others must step out of their ivory towers and enter into dialogue with other actors.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said that because of a lack of resources, the poor could not engage in legal defence and were unable to pay the expenses which the criminal justice system might require.
ABDUL SATTAR, Sub-Commission Expert, reiterated the impact of poverty on the administration of justice. He recalled an instance he had faced as a vice-consul in Pakistan when a Pakistani citizen who had bounced a check had been sentenced by the judge to 10 years in prison. A court decision in Switzerland made six days ago on a person who had embezzled $ 11 million had resulted in a sentence of six months. Persons who had the financial resources could engage the best lawyers to defend them. Mr. Sorabjee was right to suggest that the State should provide better legal defense to those who could not afford it.
LALAINA RAKOTOARISOA, Sub-Commission Expert, said that the moral responsibility of persons in many countries had been ignored. In the production of pornographic materials, for example, the company that produced them was not accountable, and only the individual person was held responsible. The issue should be studied by the Special Rapporteur.
ASBJORN EIDE, Sub-Commission Expert, asked why Ms. Zerrougui had not focused on victims but had focused on a more comprehensive approach. That was fine in theory, but how would this be dealt with in practice? He added that prisons in Europe and the United States were increasingly filling up with aliens and asked her to look into why this situation had occurred and whether appropriate measures had been taken to assist aliens when confronting the justice system.
LEILA ZERROUGUI, Sub-Commission Expert, responding to some of the questions raised by other Experts, said that the issue of race could be invoked as a discriminatory aspect of the criminal justice system, which was de jure discrimination. With regard to discrimination through legal records of individuals, the issue would be dealt with in the future study. The situation of poor people, known as structural discrimination, was also another issue that needed further study. In that situation, the poor were not able to defend themselves due to the lack of finances that were required by the justice system. It was also impossible to ignore the other categories of people that were discriminated against under the criminal justice system, including women, foreigners and indigenous peoples.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, orally introduced a study on accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations. The study covered peace support operations. That meant both traditional peacekeeping and also Chapter VII operations, whether the mandate was only to use force in self-defense or whether it authorized the use of all necessary means. It also included operations which States claimed were designed to promote peace and respect for human rights, even if they had no United Nations authority. The accountability of military forces was relatively easy to address, insofar as they were subject to the criminal and disciplinary law of the sending State. What was far more problematic was the accountability chain of all other personnel. In the case of certain operations, for example where there were no functioning democratic institutions, the Special Representative of the Secretary-General in effect ruled the territory and had the capacity to make legislation. What were the rules applicable to the exercise of that law-making capacity? While the structure of the operations had been evolving, more and more examples were being provided of cases where the persons associated with such operations had been engaged in serious violations of human rights law. In most circumstance there was simply no information as to whether any proceedings were brought against them in their home state; and if so, whether such proceedings reflected the gravity of the alleged offence and whether any punishment was awarded and, if so, whether it was of appropriate severity. Another issue was whether a United Nations operation had a responsibility positively to promote and protect human rights within the territory in question. This was a particular problem in relation to prostitution and trafficking.
VLADIMIR KARTASHKIN, Sub-Commission Expert, said the type of operations to be studied by Ms. Hampson invoked legal, political and military questions. The kind of operations that were carried out with or without the UN might also invoke a legal question. She should base her examination on the existing relevant UN instruments, particularly the UN Charter, on how to prevent military operations that were occurring in the world without the authorization of the United Nations. Many of the operations that were taking place at present were contrary to State practices.
ABDUL SATTAR, Sub-Commission Expert, complimented the study which was as analytical and sophisticated as had come to be expected from Ms. Hampson. She had highlighted a multiplicity of issues related to the impunity of persons engaged in operations. Concerning military operations, he said that an increasing number of countries were increasingly reluctant to commit troops to peacekeeping operations. Would the reluctance reach the point that the United Nations would no longer find any troop contributing countries? People must be responsible and accountable for their conduct, however, in many countries, military personnel were subjected to a special military accountability.
FISSEHA YIMER, Sub-Commission Expert, asked how Ms. Hampson saw the rule of engagement under the UN Charter, particularly in line with Chapter 7. He also asked her to explain the presence of human rights officers among military operations.
SOO GIL PARK, Sub-Commission Expert, agreed with Mr. Kartashkin that this was a delicate area in which the Security Council was heavily involved. His advice was to closely examine all the documents issued by the Security Council, including provisions on rules of engagement. Regarding law making, he said that the power of Special Representatives was dependent on specific resolutions. When the Security Council decided to send peacekeeping operations, they tried to have a human rights component and when enforcement action was taken, they would be dealing with the issue of prostitution raised in the study.
DAVID WEISSBRODT, Sub-Commission Expert, said that military peacekeeping operations were a difficult issue to deal with. What concerned him was that the UN personnel in the field had to function under the international humanitarian law. The application of the international law to UN personnel was a serious problem. If a soldier under the UN banner committed a serious crime, for example, he was sent back home. It was not sure that the soldier was properly punished for the crime he committed abroad.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said the study did not look at the lawfulness of the peacekeeping operation. It started from the fact that operations were happening. What this study was about was what happened if the persons participating in the peacekeeping operation broke the rules. The issue was relatively easier in terms of military personnel, since no state claimed that they had sole jurisdiction over their military personnel when abroad. The reason for this was because the State accepted that it had the obligation to punish its own armed forces. The big problem was assessing how they were punished and if the punishment reflected the gravity of the crime. On rules of engagement, one needed to distinguish these rules in the strict sense to the more general sense. There was not generally an issue except if it turned out that there was a gap in the rules of engagement. The problem had to do with if there was evidence showing that personnel were breaking existing rules of engagement. The problem was often to do with implementation of the rules of engagement and then assessing if the perpetrators were punished. In a broader sense, using rules of engagement to mean codes of conduct, in practice it was more likely that the code did not address the issue or left it open to interpretation. The concern was whose responsibility it was to ensure that perpetrators of crimes were punished. The general practice had been to simply send the person in question home. The channels of accountability needed to be identified. What was striking in the role of Special Representatives who could legislate was the space within which they gave themselves immunity. It was far from clear if the Security Council intended for them to have no accountability at all. These were the issues that would be examined in her study. However, nothing would be done that would deal with the lawfulness of the operation itself.
HERNAN MOTTA MOTTA, of American Association of Jurists, said that Resolution 1487 of the Security Council concerning article 16 of the Statutes of the International Penal Court had been adopted in contradiction of the Geneva Convention on the law of treaties. The United States, which did not approve the Statute of the Court, was at the origin of this resolution. It had made a lot of pressure on the members of the Council to pass the resolution, which violated the fundamental principles of the Statute. The Resolution had frustrated the effectiveness of the Court. France, which was one of the five permanent members enjoying a veto, had refrained from voting without impeding its adoption. The United States had forced 40 countries to accept the resolution under threat of economic reprisal.
MITSUYUKI SUGA, of Japan Federation of Bar Associations, said that national protection systems were meant to help move forward the implementation of international human rights norms at home. However, in reality, as the report on the administration of justice of the Working Group showed, it seemed to be the exception rather than the rule that national judges applied international legal provisions. The Supreme Court of Japan, which was supposed to play a key role in domestic implementation, had been continuing to pay little or no attention to the provisions of these treaties. For example, last September, it had ruled on the issue of restriction of freedom of election campaigns leading to the total ban of door-to-door canvassing and severe restrictions on the distribution of documents by the Public Office Election Law. The implementation of international human rights treaties in Japan was extremely inadequate. Such inadequacy must be rectified without delay. One of the most effective measures to ensure the domestic implementation was to encourage States to ratify the First Optional Protocol of the Convention of Civil and Political Rights which would enable an individual to communicate to each treaty-based supervisory body so as to sensitize judges to the international human rights instruments.
KAREN PARKER, of International Educational Development, said that his group was convinced that there could be no rule of law and democracy when one State invaded another State without express authorization of the Security Council. The military operations against Iraq were viewed as illegal. Iraq was now an occupied country with the occupation forces in continued and total violation of the Geneva Conventions and the laws and customs of war. That was in complete disregard of the rule of law and democracy. There was not only a rape of the concept of rule of law and democracy in Iraq but a rape of the resources of the Iraqi people in that the United States had seized control of the assets and resources of the Iraqi people.



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