HUMAN RIGHTS COUNCIL DISCUSSES JOINT REPORT ON DETAINEES IN GUANTANAMO BAY

Human Rights Council
AFTERNOON

21 September 2006


Holds Debate on Reports on Incitement to Racial
and Religious Hatred and the Promotion of Tolerance


The Human Rights Council this afternoon discussed a joint report on the situation of detainees in Guantanamo Bay prepared by the Chairperson-Rapporteur of the Working Group on arbitrary detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health..

Leila Zerrougui, Chairperson-Rapporteur of the Working Group on arbitrary detention, said the joint report concluded that the so-called “war on terror” was not an armed conflict justifying indefinite detention under international humanitarian law. Moreover, continued interrogation of the detainees was incompatible with the justifications given by the Government of the United States. The detainees were entitled to challenge the legality of their detention before a legal body, and to obtain release, and this right was currently being violated and the continuing detention of all persons held amounted to arbitrary detention.

Ms. Zerrougui said the report recommended that the United States Government should either expeditiously bring the detainees to trial before a competent and independent tribunal, or release them without delay. It should close down the detention centre, and, until that time, refrain from any practice amounting to torture or cruel, inhuman, and degrading treatment, discrimination on the basis of religion, and violations of the right to health.

Participating in the discussion on the report on the situation of detainees in Guantanamo Bay were the representatives of the United States, as a concerned country, Cuba, Finland on behalf of the European Union, Switzerland, Malaysia, China, Democratic People’s Republic of Korea, Iran, Ecuador, Peru, Algeria and Venezuela. The non-governmental organization Human Rights Watch also spoke in a joint statement.

The Council also discussed the report presented to it by the High Commissioner for Human Rights on incitement to racial and religious hatred and the promotion of tolerance, and a joint report by the Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Doudou Diene, on the same subject.

Mehr Khan Williams, Deputy High Commissioner for Human Rights, presenting the report on incitement to racial and religious hatred and the promotion of tolerance, underscored that xenophobia and incitement to racial and religious hatred and violence, and intolerance in general, fundamentally imperilled equality and non-discrimination, which were at the very foundation of international human rights. A growing number of countries were developing national laws to better protect victims of incitement, hate and violence and limit speech that incited intolerance and violence. However, the interpretation and application of the law seemed to vary considerably.

Ms. Jahangir, presenting the joint report on incitement to racial and religious hatred and the promotion of tolerance, said she had received a number of allegations about State officials who had made derogatory comments about the beliefs held by members of different religious groups. While those comments might in some cases target major religions, they more often targeted the beliefs of smaller religious communities. Indeed, it was notable that when such comments did target smaller religious communities, they received virtually no attention.

Mr. Diene said the analysis of increasing trends in defamation of religions could not be dissociated from a profound reflection both on the current political and ideological context, and on the ominous trends of racism, racial discrimination, xenophobia, and related intolerance. The insidious penetration of racist and xenophobic platforms into the political agendas of democratic parties led to a generalised social acceptance of a racist and xenophobic rhetoric and system of values.

Speakers on the issue of incitement to racial and religious hatred and the promotion of tolerance included Pakistan. Holy See, Switzerland, Finland on behalf of the European Union, India, United Kingdom and Brazil. Indonesia exercised its right of reply.

Also this afternoon, the Council concluded its discussion on the reports of its Special Rapporteur on freedom of religion or belief, Ms. Jahangir, and the Special Rapporteur on the right to freedom of opinion and expression, Ambeyi Ligabo.

In her concluding remarks, Ms. Jahangir said that the issue of conscientious objection was used not only to members of religious groups but to individuals as a whole who might object to military services. On the question on dialogue, she said in Nigeria and Sri Lanka, for example, dialogue had taken place to resolve religious conflicts and to promote religious harmony.

Ambeyi Ligabo, the Special Rapporteur on the right to freedom of opinion and expression, said he had profound appreciation to all the delegations for their valuable and incisive comments, and overwhelming support regarding his recommendations. There was a major lapse when it came to implementation, and therefore there should be international guidelines, which gave a need for accountability on implementation. Most of the cases with regards to impunity arose in this regard.

Participating in the context of the interactive dialogue on the reports on freedom on religion and on expression were United Kingdom, Canada, United States, Norway, Czech Republic, Iran, Tunisia and Ghana. The following non-governmental organizations also took part in the dialogue:
International Commission of Jurists in a joint statement with Human Rights Watch; Association for World Education in a joint statement with World Union for Progressive Judaism; Reporters without Borders; Society for Threatened Peoples; Canadian HIV/AIDS Legal Network; International Educational Development; International Commission of Jurists in a joint statement with the International Federation of Human Rights and Human Rights Watch; and Holy See.

Singapore and Cuba spoke in exercise of their right to reply.

The Council will reconvene at 10 a.m. on Friday, 22 September, to hear reports from its Special Procedures on the right to health, the right to food and human rights defenders.

Continuation of Discussion on Freedom of Religion or Belief and Freedom of Opinion and Expression

CAROLINE REES (United Kingdom) said with regards to the report by Asma Jahangir, Special Rapporteur on freedom of religion or belief, on the evolving scope of cases and situations she said were falling within her responsibility, there was a need for an explanation of the evolution of the mandate over the last few years, and what additional resources could be required. A positive answer had been received from Israel about a country visit, but no dates had yet been suggested, and this should be clarified. Had an answer been received from Cuba after a request for a visit, the speaker asked.

TERRY CORMIER (Canada) thanked Ambeyi Ligabo, Special Rapporteur on the right to freedom of opinion and expression, for his report. Canada supported the need to promote the rights of people in the context of the information society, in particular regarding the Internet. Canada wanted to know how the international community could assure that those rights remained in the forefront during the discussions concerning Internet governance.

GUSTI AGUNG WESAKA PUJA (Indonesia) thanked the two Special Rapporteurs on freedom of religion and on freedom of expression. Indonesia sought their comment on the principle that whereas the fight to freedom of expression was one of the fundamental human rights, its exercise should be guided by wisdom, especially if it was likely to impinge on other rights. Indonesia considered the coordination among mandate-holders an important element in the achievement of a more effective outcome, including in avoiding overlapping. While Indonesia appreciated the efforts made by the Special Rapporteur on freedom of religion or belief in developing a so-called framework for communications with governments, the framework seemed to be broad and crosscutting in its approach of various thematic human rights issues.

VELIA DE PIRRO (United States) said the United States strongly supported the mandate of Ms. Jahangir, since the promotion of religious freedom was a core tenet of the United States foreign policy, which sought to promote religious freedom in all countries of the world, assisting democracies in the freedom of conscience, and identifying policies and practices in regimes that persecuted their citizens for various reasons. The report of Mr. Ligabo was also welcomed - it was another example of an essential mandate. In some countries media professionals faced crack downs on their freedoms, and in this regard, the Special Rapporteur’s recommendations that States take steps to guarantee the freedom of expression in the print media and the Internet were appreciated.

ASTRID HELLE AJAMAY (Norway) thanked both Special Rapporteurs for their excellent reports. Norway asked Ambeyi Ligabo, the Special Rapporteur on the right to freedom of opinion and expression, how progress could be achieved to avoid public officials using defamation law to muffle dissent. Norway also wanted the Special Rapporteur to further elaborate on a proposed comprehensive study on providing security and protection to journalists operating in armed conflicts. Lastly, Norway wanted the Special Rapporteur to comment on the use of Special Procedures to guarantee the right of individuals to peaceful assembly, in particular with reference to gays and lesbians.

LUKAS MACHON (Czech Republic) asked the Special Rapporteur on freedom of opinion and expression how the right to privacy could be guaranteed; and how Internet governance could foster the right to freedom of opinion and expression and to access to information. The Special Rapporteur was also asked to indicate some best practices of building the global information society by bridging the digital gap.

FOVOUZADEH VADIATI (Iran) said the suggestion made by Ms. Jahangir to promote more inter-Governmental dialogue was welcomed, and wondered what would be the negative effects of the setting up of legislation in various countries that had a certain effect on the self-expression of Muslim women.

MOHAMED CHAGRAOUI (Tunisia) said the broad lines of the report on religious intolerance were shared insofar as the manifestations of religious intolerance threatened chances of coexistence, and the appeal in favour of tolerance was supported. Islamophobia was a phenomenon which necessitated for Member States of the Human Rights Council to discuss intolerance and expand the dialogue. Civilisations and religions should and could contribute to ensuring that ethical, philosophical and political tenets of peaceful coexistence and cooperation between individuals and peoples were increased. How did the Special Rapporteur feel about the role that could be played by the Human Rights Council to counter the increase of all forms of intolerance in order to encourage a true dialogue between civilisations, the speaker asked.

PAUL ARYENE (Ghana) thanked both Special Rapporteurs for their respective reports. Ghana asked Ambeyi Ligabo, the Special Rapporteur on the right to freedom of opinion and expression, with reference to paragraph 128 of the Addendum to his report, to amend it as to reflect the fact that Ghana had communicated with the Special Rapporteur on that matter. Ghana would oppose any attempt to undermine the power of the judiciary.

SUSAN APPLEYARD, of International Commission of Jurists, referring to the report on freedom of religion or belief, said there had been a series of incidents of religious attacks in Sri Lanka. The Commission would like to see measures taken in order to protect the religious minority in that country.

DAVID LITTMAN, of Association for World Education in a joint statement with World Union for Progressive Judaism, said the price paid for the freedom of expression of others was the risk that others could be offended: violent reaction could not be condoned only because feelings had been hurt. Institutions, including religions, had protection under the law, but they did not have human rights. Both Special Rapporteur’s and the Special Rapporteur on racism should request the Organization of Islamic Conference to issue an unambiguous condemnation at the Council of all those who killed, or who called upon others to kill, terrorise, or use violence in the name of God or any religion. The Council should include in any renewed resolution on combating defamation of religions a similar condemnation.

GEORGE GORDON-LENNOX, of Reporters Without Borders, wished to commend Ambeyi Ligabo, the Special Rapporteur on the right to freedom of opinion and expression, for his valuable report. It emphasized the remarkable scope of the daily activities of the Special Rapporteur, and his small and dedicated support staff in the High Commissioner’s Office on behalf of individual cases. The very detailed annex to the report (E.CN.4/2006/55/Add.1) was an impressive document; yet, as the Special Rapporteur himself noted, its 397 pages-long report could not suffice to detail the full extent of violations of freedom of opinion and expression around the world. Reporters Without Borders threw the spotlight on press freedom violations on a daily basis, but their only leverage was public opinion. It urged Governments to accept the Special Rapporteur’s visits and provide satisfactory replies to his communications.

TENZIN KAYTA, of Society for Threatened Peoples, thanked the Special Rapporteur on freedom of religion or belief for her communication to China on the fate of the eleventh Panchen Lama. He alerted the Rapporteur about the current widespread intensification of a patriotic re-education campaign in Tibet by China, which sought to force the Tibetans to denounce their spiritual leader, the Dalai Lama.

JOHN FISHER, of Canadian HIV/AIDS Legal Network, said there were numerous allegations of State repression of lesbian/gay equality marches, attempts to shut down and ban non-governmental organizations working on these issues, and other related allegations. These were crosscutting themes that had also been addressed by other Special Procedures. These rights violations cut across several mandates, but the common thread was State repression of lesbians, gays and transsexuals. What steps had been taken or were planned to address these violations, the speaker asked.

SHIZHONG CHEN, of International Educational Development, considered the crime against conscience as one of the worst crimes possible, as conscience defined human nature. International Educational Development urged the Council to investigate severe violations against human rights, including against conscience carried out by the Government of China.

Concluding Remarks by the Special Rapporteurs on Freedom of Religion or Belief and Freedom of Opinion and Expression

ASMA JAHANGIR, Special Rapporteur on freedom of religion or belief, in her concluding remarks, responded to Croatia by saying that the High Commissioner for Human Rights had presented a document on the issue of conscientious objectors. The issue was not directed only to members of religious groups but to individuals as a whole who might object military services. On the question from Finland on dialogue, she said that in Nigeria, for example, a dialogue had taken place to resolve the religious conflict in the country. Also, in Sri Lanka, a dialogue and a convention had taken place to resolve the problems and promote religious harmony. In Azerbaijan, the Islamic leader had sent a message to the society stressing the need for respect among religions. On the question from the Netherlands on the rights of women, the document from her predecessor on the issue would be translated into other languages and would be made available. On the question of Baha’i, she would issue a statement on the subject in the near future concerning that community whose members were being persecuted in some countries. On the direction of the mandate, which was asked by one delegation, she said she would continue to identify the victims of intolerance and suggest means to resolve crisis arising from religious intolerance.

AMBEYI LIGABO, Special Rapporteur on the right to freedom of opinion and expression, said he had profound appreciation to all the delegations for their valuable and incisive comments, and their overwhelming support regarding his recommendations. Communications received after the printing of the report would be indicated in the next report, and so the non-appearance of some of the replies did not indicate that these were not appreciated. There was a major lapse when it came to implementation, and therefore there should be international guidelines which gave a need for accountability on implementation. Most of the cases with regards to impunity arose in this regard.

There should be a group of Experts to examine the issues related to the safety of media personnel, and this would give the Council a clear view of the issues that they had to examine. It would be a great expression of trust for the Special Rapporteur to be entrusted with such an issue. Armenia was thanked for the proposal of the establishment of an inter-Governmental Commission on the Internet, as this would address many vices such as prostitution and pornography. However, it should not constrain or hinder the right to freedom of expression and opinion. Peru had asked what could be done with regards to the issue of access to information, and Annex 1 contained a joint declaration examining details of what could be done in this regard.

The Czech Republic had asked various questions. When it came to sexual orientation, when the mandate was established in 1993, the issue had not been discussed, and it was up to the Council to decide whether this issue should be included henceforth. The Special Rapporteur’s mandate would be pursued regardless of the political system or regime of the country he was examining, and this would be done without fear or favour. On the question of the Court on Freedom of Expression, such a Court would go against the general principle of human rights instruments. It was the Special Rapporteur’s view that it would be much better to have a self-regulating body, and this would go a long way towards enhancing the freedom of opinion.

Right of Reply

BURHAN GAFOOR (Singapore), exercising its right of reply, said that it was not often that the delegation took the floor, but it did so to use the right of reply in response to the statement made by International Educational Development, which made allegations that Singapore was acting against Falun Gong under the pressure of another country. Singapore only acted on it own and always under the framework of its law and Constitution. Lastly, Singapore praised the ongoing dialogue between delegations and civil society, but deplored an incident that had happened earlier today in which an NGO representative approached the delegation and made an improper remark with reference to the delegation’s position on freedom of expression.

RODOLFO REYES RODRÍGUEZ (Cuba), in a right of reply, referred to the question raised by the Representative of the United Kingdom and said that he was surprised that the Representative raised that question. It seemed that the question was prepared in the United States rather than in the United Kingdom. It was up to Cuba to decide who should enter the country through its ports or airports. When such questions were raised in the Council by the United Kingdom, it was better for the Representative to use an American accent.

Joint Report on Situation of Detainees at Guantanamo Bay

The Council has before it a joint report (E/CN.4/2006/120) entitled situation of detainees at Guantanamo Bay, submitted by five holders of mandates of special procedures of the Commission on Human Rights who have been jointly following the situation of detainees held at the United States of America Naval Base at Guantanamo Bay since June 2004, namely, the Chairperson-Rapporteur of the Working Group on arbitrary detention; the Special Rapporteur on the independence of judges and lawyers; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

As the United States Government did not accede to the request for private interviews with detainees by the special mandates, the mandate holders decided on 18 November 2005 to cancel the planned visit. The present report is therefore based on the replies of the Government to a questionnaire concerning detention at Guantanamo Bay, interviews conducted by the mandate holders with former detainees currently residing or detained in France, Spain and the United Kingdom, and responses from lawyers acting on behalf of some Guantanamo Bay detainees to questionnaires submitted by the mandate holders. It is also based on information available in the public domain, including reports prepared by non-governmental organizations (NGOs), information contained in declassified official United States documents and media reports. The report raises a number of important and complex international human rights issues. In view of the fact that an on-site visit was not conducted and owing to page limitations, the report should be seen as a preliminary survey of international human rights law relating to the detainees in Guantanamo Bay.

Section I of the report provides a legal analysis common to all five mandates. Sections II to V outline the legal framework specific to each mandate, as well as the particular allegations of human rights violations which concern them. The final section contains conclusions and recommendations. Among other things, it recommends that the Government of the United of States of America should either expeditiously bring all Guantanamo Bay detainees to trial, in compliance with articles 9, paragraph 3, and 14 of ICCPR, or release them without further delay; it should close the Guantanamo Bay detention facilities without further delay; and it should refrain from expelling, returning, extraditing or rendering Guantanamo Bay detainees to States where there are substantial grounds for believing they would be in danger of being tortured.

Presentation of Joint Report on Situation of Detainees at Guantanamo Bay

LEILA ZERROUGUI, Chairperson-Rapporteur of the Working Group on arbitrary detention, presented the joint report on the situation of detainees at Guantanamo Bay, prepared jointly by the Working Group, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman, and degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Since January 2002, the five mandate holders had been following the situation of detainees held at the United States Naval Base, and in June 2004, the United States Government had been asked to allow the group to visit the detention centre jointly. The purpose of the visit was to undertake an objective and impartial assessment of the serious allegations of torture, cruel, inhuman, and degrading treatment of detainees, arbitrary detention, violations of the detainees right to health and freedom of religion, as well as of their due process rights. Regrettably, after prolonged negotiations, the United States Government extended an invitation for a one-day visit to only three of the mandate-holders, and stipulated that the visit would not include private interviews or visits with detainees. The mandate holders deeply regretted that the United States Government did not accept the standard terms of reference accepted by all countries.

In the report, the Rapporteurs concluded that the so-called “war on terror” was not an armed conflict justifying indefinite detention under international humanitarian law. Moreover, continued interrogation of the detainees was incompatible with the justifications given by the Government of the United States. The detainees were entitled to challenge the legality of their detention before a legal body, and to obtain release, and this right was currently being violated and the continuing detention of all persons held amounted to arbitrary detention. Other guarantees of the right to a fair trial, particularly concerning the access of the accused to the evidence used against him, were also violated. The interrogation techniques authorised by the Department of Defence amounted to degrading treatment. The general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement amounted to inhuman and degrading treatment and to a violation of the right to health. There were reliable indications that, in different circumstances, detainees had been victims of violations of the right to freedom of religion or belief, and that some interrogation techniques were based on religious discrimination.

Based on these findings, the report included a number of recommendations. In particular the United States Government should either expeditiously bring the detainees to trial before a competent and independent tribunal, or release them without delay. It should close down the detention centre, and, until that time, refrain from any practice amounting to torture or cruel, inhuman, and degrading treatment, discrimination on the basis of religion, and violations of the right to health. The Human Rights Council’s attention was drawn to the serious human rights violations taking place in Guantanamo that were identified in the report, and it was underlined that since the report had been issued, no substantial progress had been made to prevent such serious violations. On the contrary, the admission of the existence of secret places of detention pointed to very serious human rights violations in relation to the hunt for alleged terrorists, and required the urgent attention of the Human Rights Council. The Council should urge the Government of the United States to implement the recommendations set out in the report, and put an end to the violations described therein, allow the mandate holders to urgently visit the Guantanamo detention centre, urgently abolish the program of secret detention, and abide by its human rights obligations in the fight against terrorism.

Statements by Concerned Countries

WARREN W. TICHENOR (United States), speaking as a concerned country, said that the United States had no interest in being the world’s jailer. In fact, President Bush and other senior officials had said on numerous occasions that they would like to see Guantanamo closed. But the United States could only close Guantanamo if they could protect themselves and their allies from the threat posed by dangerous men held there, while ensuring that transferred or released detainees were treated humanely.

The United States was a nation of laws and would continue to work with the international community to construct a common foundation to defend their nation and protect their freedom. Since the United States thought they needed to work together to move forward, they were profoundly disappointed at the Special Rapporteurs’ approach, as reflected in the report presented today.

The United States regretted that the Special Rapporteurs had declined to accept their invitation to visit Guantanamo on comparable terms as they had extended to members of their own Congress as well as foreign officials, parliamentarians, representatives of other international organizations, and other visitors. Instead, they prepared a report that asserted, without real evidentiary support, conclusions they had clearly already reached. They made no effort to go to Washington to visit with the United States Government officials directly involved in detainee issues. By contrast, the report treated second- and third-hand allegations from press reports and contacts with attorneys for the detainees as true.

The United States had submitted a detailed rebuttal of the report, copies of which were available in the room. Finally, the United States highlighted that their policies and practices had evolved significantly over time. Those changes demonstrated the self-correcting mechanisms inherent in their system of checks and balances. For example, their Supreme Court had recently ruled that Common Article 3 of the Geneva Convention applied to the conflict with al Qaida.

Interactive Dialogue on Joint Report on Situation of Detainees at Guantanamo Bay

RODOLFO REYES RODRÍGUEZ (Cuba) said that different commissions under the Bush Administration had attempted to promote impunity. At the present situation, it was impossible for the Council to debate the situation of the detainees in Guantanamo Bay. There were more than 14,000 individuals who were victims of the Bush Administration treated with the pretext of the fight against terrorism. Did the Rapporteurs investigate the existence of places of secret detention organized by the United States? The Bush Administration had recently attempted to legalize torture by misinterpreting an article of an international convention. Did the Rapporteurs consider the suicides committed out of desperation, the mental health and the inhumane detention conditions? The detention centres were established in a territory illegally occupied. What measures would the panellist suggest so that such a situation was not repeated in the future if the centre was closed down?


VESA HIMANEN (Finland), speaking on behalf of the European Union, said the five mandate-holders were thanked for their comprehensive joint report. While committed to fighting terrorism in an effective manner, human rights and international human rights law should be respected. The report recommended that consideration should be given to trying suspected terrorists before a competent tribunal, and further information should be given on this. On the return, rendering or deportation of detainees to States where they were in danger, what would be the best way to ensure the respect of basic human rights of the detainees and minimum fair trial guarantees if the centre was closed down, he asked. Further, regarding forced feeding, what was the response of the Special Rapporteur on health to the United States claim that this was required in order to preserve the health and life of the detainees, he asked.

BLAISE GODET (Switzerland) thanked Ms. Zerrougui for presenting the joint report and said that torture and other degrading treatment should be abolished in Guantanamo, and other detention centres. International law should apply to the transfer of detainees to other countries where torture was applied as well. Switzerland asked the Chairperson/Rapporteur, in the event of the closure of the Guantanamo Bay detention centre, about the fate of detainees; where would they be transferred to and under which legal framework would they be treated. It also asked about the use of diplomatic assurances in the transfer of detainees to countries in which torture was a common practice.

MOHAMED ZIN AMRAN (Malaysia) said the two important laws – international humanitarian law and the international human rights law – continued to guide the work of the debate in the Council. The reports presented by the Special Rapporteurs and the response provided by the Representative of the United States needed to be thoroughly studied by the Council. The practice of rendition should be discontinued. Malaysia appreciated the work done by the Special Procedures on the detainees in Guantanamo.

LA YIFAN (China) said the Representative of the United States had mentioned that the Government of that country would like to accept the visit of the group of mandate-holders, and had made appropriate arrangements for them to visit Washington. This kind of arrangement sounded very attractive, and the speaker asked why this good will had been rejected by the group of mandate-holders.

CHOE MYONG NAM (Democratic People's Republic of Korea) said the work of the mandate holders to investigate the situation of detainees in Guantanamo was interesting, and the composition of the team showed the wide scope of the situation. The gross and systematic pattern of human rights violations was condemned, in violation of relevant international human rights and humanitarian laws. If these practices persisted without a challenge, there would be a second or even third Guantanamo in other territories tomorrow, with the same or worse violations. The team should continue its mission until the problem was addressed excellently and transparently. What were the future plans of the team, the speaker asked?

SEYED KAZEM SAJJADPOUR (Iran) said Iran appreciated the work of Ms. Zerrougui, and indicated the cognitive change that had taken place in the United States, with the underlining assumption that some people were better than others, and that they could change the human rights mechanisms. Iran asked Ms. Zerrougui about possible remedies for those freed detainees who were innocent.

GALO LARENAS SERRANO (Ecuador) said that Ecuador considered that the report would strengthen the international stand in the fight against terrorism. What would be the most effective means to seize the International Court of Justice in such matters in reference to international treaties such as the Geneva Conventions?

MANUEL RODRIGUEZ CUADROS (Peru) said it was clear that the report, which was a serious and earnest one, with legal foundation, established the existence of situations and acts which were in violation of human rights, in particular when it came to torture, cruel, inhuman, and degrading treatment, excessive use of force, and a lack of due process. As the mandate holders had said, the situation should be resolved, making it possible for detainees to retrieve their rights, and the actions should be in compliance with international law in human rights. The fight against terrorism should take place in the context of respect for legality and human rights. Recommendations in the text included the possibility of considering, when it came to judging suspects, the identification of an international court, and the speaker asked for further details in this regard.

IDRISS JAZAÏRY (Algeria) thanked Ms. Zerrougui for the courageous and fair report, and recalled that the first session of the Council had considered the trade between security and human rights as a false choice. Acting in such a manner by some States would only contribute to the proliferation of terrorism.

ENZO BITETTO GAVILANES (Venezuela) said the report was objective and indicated that human rights violations were being committed in Guantanamo. Access to all places in Guantanamo should be allowed, including individual interviews with the detainees. It was said that the centres would be closed, while new construction was being carried out.

MARIETTE GRANGE, of International Commission of Jurists in a joint statement with the International Federation of Human Rights and Human Rights Watch, said the Special Rapporteurs were thanked for their analysis and report. The United States Supreme Court had found the detentions were illegal, and a new system was being created. A new law would allow the presentation of evidence obtained by torture and other cruel, inhuman, and degrading treatment, and the Special Rapporteurs were asked whether this contravened international humanitarian law. The Bush administration continued to ignore its international obligations, and would a law that narrowed the scope of outrage on human dignity change this, the speaker asked. What steps had the United States taken to end the arbitrary detentions in Guantanamo, she asked.

Concluding Remarks by Mandate Holders on Joint Report on Situation of Detainees at Guantanamo Bay

ASMA JAHANGIR, Special Rapporteur on freedom of religion or belief, called for access to the detainees to ensure that their right to freedom of religion was being respected.

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, thanked the United States for having reiterated its commitment to close down the Guantanamo Bay detention centre, while as the same time taking into account legitimate security concerns. The joint team of Special Rapporteurs had rejected the invitation of the United States, as they had not been granted the possibility of speaking in private to detainees, which was a necessary requisite for an objective fact-finding mission. Mr. Nowak thought that they had to concentrate on the future and find a solution. He proposed that detainees, for which there were evidence of wrongdoing, be brought before an independent court, and for those detainees for which there was no evidence of wrongdoing to be freed immediately. In that last case, the principle of non-refoulement had to be respected. He also expressed concern about the situation in other secret detention centres, as they constituted forced disappearance for the detainees involved.

LEILA ZERROUGUI, Chairperson-Rapporteur of the Working Group on arbitrary detention, said that the right to appeal was part of the rights of detainees. They should be liberated when the charges were not justified. The United States had ratified relevant international conventions and for that reason the detainees should be freed if they were not indicted. Prolonged detention without any charge was unacceptable.
PAUL HUNT, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health , said that he had not been invited to visit Guantanamo Bay. With great respect, the United States rebuttal included some misrepresentation of what the report said, for example, in paragraph 70, a number of credible and serious allegations were made, and the United States called these conclusions, which they were explicitly not. There was common ground on mental health, and the United States agreed that a number of the detainees suffered from this, as the report said. The prevalence of mental illness in Guantanamo was not unlike in other correctional settings, according to the United States, but there was no evidence of this, and the report showed that the condition of detainees’ mental health was worse than elsewhere, and facts, namely the number of suicides, showed the analysis was correct. On forced feeding, all that could be said was that it was difficult to conceive of the United States Government as a human rights defender of the detainees, and the United States position lacked credibility when examining all the circumstances in this regard.

LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, said he had not been invited to go to Guantanamo either, but, to sum up, there were three ideas: in the report and in the various interventions, it seemed the effective fight against terrorism was incompatible with the respect for human rights. In international human rights law, this had to be taken into consideration, and the United States knew that military commissions violated international human rights law. Regarding if these military courts were legalised, if this was accepted, it would be against international human rights law, and the same covered the acceptance of torture or degrading treatment, which went against the Geneva Convention. The speakers were United Nations Experts and had shown frankly, clearly and specifically the situation of Guantanamo Bay. It was an important report, and it really challenged the credibility of the United Nations and the work of the Special Rapporteurs. The United Nations should condemn the dictatorial regime, and should condemn the situation and act to change it. The mandate holders intended to concern themselves with all detention centres where detainees were held incommunicado, in all countries. They would do their level best, but the situation was in the hands of the Human Rights Council.

Reports on Incitement to Racial and Religious Hatred and the Promotion of Tolerance

The Council has before it a report (A/HRC/2/6) entitled report of the High Commissioner for Human Rights on incitement to racial and religious hatred and the promotion of tolerance, which was submitted pursuant to Human Rights Council decision 1/107 of 30 June 2006, which expressed “concern over the increasing trend of defamation of religions, incitement to racial and religious hatred and its recent manifestations” and requested the “Special Rapporteur on freedom of religion or belief and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, as well as the United Nations High Commissioner for Human Rights to report to the next session on that phenomenon, in particular its implications for article 20, paragraph 2, of the International Covenant on Civil and Political Rights”. The report summarizes the preliminary outcome of research conducted by the Office of the High Commissioner for Human Rights on the subject. It focuses on the international human rights dimension and reviews the status of the law and the scope of, as well as the limits on action to regulate the defamation of religions and incitement to racial and religious hatred.

The preliminary conclusion of the report is that more effort is needed, possibly within the international human rights machinery, more specifically to define the parameters of the law in this area in order to facilitate more coherent and effective implementation at the national level in a manner that can promote tolerance, while enhancing safeguards for the freedom of expression and other fundamental freedoms.

The Council has before it a report (A/HRC/2/3) entitled report of the Special Rapporteur on freedom of religion or belief and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on incitement to racial and religious hatred and the promotion of tolerance further to Human Rights Council decision 1/107 on incitement to racial and religious hatred, in which those special mandates were requested to report on defamation of religions and the implications of that phenomenon for article 20, paragraph 2, of the International Covenant on Civil and Political Rights”.

The report is divided in three parts. In the first part, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance analyses the phenomenon of defamation of religions and incitement to racial and religious hatred as manifestations of contemporary forms of racism, racial discrimination, xenophobia and related intolerance. He finds that two key dimensions of the current ideological context constitute determining factors in the incitement to racial and religious hatred and in the political reading, interpretation and implementation of article 20 of the International Covenant on Civil and Political Rights: the impact of the combat against terrorism on human rights and the emergence of new forms of discrimination. In the second part, the Special Rapporteur on freedom of religion or belief addresses the issue of defamation of religions and the right to freedom of religion or belief. In that section, the Special Rapporteur notes that the phenomenon of globalization has brought with it a series of new challenges. People of all opinions, beliefs and faiths live in greater proximity, making the need for tolerance ever more urgent.

The conclusions and recommendations are reflected in the third part of the report. Among others things, the Special Rapporteurs recommend that the Human Rights Council invite Member States to promote and practise dialogue between cultures, civilizations and religions as more profound way of combating racial and religious intolerance; that the Council invite the religious and cultural communities to promote in-depth intercultural and inter-religious dialogue; and that, Member States should avoid stubbornly clinging to free speech in defiance of the sensitivities existing in a society with absolute disregard for religious feelings, nor suffocating criticism of religion by making it punishable by law.

Presentation of Reports on Incitement to Racial and Religious Hatred and the Promotion of Tolerance

MEHR KHAN WILLIAMS, Deputy High Commissioner for Human Rights, thanked the Council for the opportunity to make preliminary observations in response to the Council’s Resolution 2006/107 of 30 June 2006, concerning “defamation of religious, incitement to racial and religious hatred.” In response to the Council’s request, the Office of the High Commissioner had reviewed international and regional human mechanisms, including treaty bodies. It had also reviewed the decisions of the international tribunals such as the International Criminal Tribunal for Rwanda and of several regional and national bodies, and scholarly literature and the reports of many experts. Ms. Khan Williams underscored that xenophobia and incitement to racial and religious hatred and violence, and intolerance in general, fundamentally imperilled equality and non-discrimination, which were at the very foundation of international human rights. A growing number of countries were developing national laws to better protect victims of incitement, hate and violence and limit speech that incited intolerance and violence. However, the interpretation and application of the law seemed to vary considerably. There were unfortunate cases where the law on incitement and the authority to limit expression had been abused and selectively applied to suppress legitimate political participation and to stifle unpopular speech as well as the voices of minorities.

International law recognized that freedom of expression was not absolute and the provisions on incitement recognized that the right to freedom of expression and speech should be exercised responsibly, that was, taking other international human rights and freedoms appropriately into account.

The Human Rights Council could play an important role in promoting a more consistent understanding of the law and providing a clearer guidance to State Parties. More specifically, the Council could initiate a number of efforts, including the elaboration of more concise definitions of the core concepts of the law where greater clarity and consensus was needed such as what constituted incitement, hostility, hate and hatred, and the notions of lawful and necessary limitations; the clear articulation of the proper boundary between the prohibition of incitement and hate speech, and the freedom of expression; and the compilation and exchange of cross-national experiences on the scope of sanctions and remedies that States might invoke consistent with their treaty obligations.

ASMA JAHANGIR, Special Rapporteur on freedom of religion or belief, said that in decision 1/107, the Council had requested her to report on defamation of religions and the implication for article 20 of the International Covenant on Civil and Political Rights. She welcomed that decision, as there was an urgent need, in that increasingly sensitive climate, for honest discourse. Indeed, it was in times of tension and emerging controversies that it was all the more incumbent on all to uphold principled positions. She considered it important to draw the distinction between defamation of religions by state actors on the one hand and by non-state actors on the other hand, for obvious reasons. She had received a number of allegations about State officials who had made derogatory comments about the beliefs held by members of different religious groups. While those comments might in some cases target major religions, they more often targeted the beliefs of smaller religious communities. Indeed, it was notable that when such comments did target smaller religious communities, they received virtually no attention.

In dealing with the question of defamation of religions by non-state actors, the situation was more complex. It was fundamentally important to clearly differentiate between the different types of expressions about religious beliefs. Those ranged from theological analysis of the content of a particular religion to the most extreme forms of incitement to violence against the members of a particular religious group. Between those two extremes, one could find many types of expressions including satire, disparaging comments and criticism. The right to freedom of religion or belief primarily protected the individual, and to some extent, the collective rights of religions and belief communities. It was the human being that adhered to religious beliefs, and not the religious beliefs themselves, that were the subjects of human rights. Positive steps should be taken to create a tolerant and inclusive environment in which all religions may be exercised, free of discrimination or stigmatisation so that they acquire the confidence to refute controversial expressions made against their beliefs.

DOUDOU DIENE, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, said the analysis of increasing trends in defamation of religions could not be dissociated from a profound reflection both on the current political and ideological context, and on the ominous trends of racism, racial discrimination, xenophobia, and related intolerance - which in turn fuelled and promoted racial and religious hatred, and on the specificities and commonalities existing among different manifestations of defamation of religions. Two key dimensions of the current context constituted determining factors in the incitement to racial and religious hatred, and in the political reading, interpretation and implementation of article 20 of the International Covenant on Civil and Political Rights: the impact of the combat against terrorism on human rights and the emergence of new forms of discrimination.

The combat against terrorism, in the aftermath of the events of 11 September 2001, had had two consequences whose scope was deeply transforming the whole fabric of international relations. A major negative impact was the trend and sometimes the ideological position of many Governments to consider that the security of the country and its people constituted the sum and substance of all human rights. The emergence of new forms of discrimination also constituted a negative consequence of the priority given to the combat against terrorism. Discrimination was a practice based on the two main national issues that Governments considered to be threatened by terrorism: security and identity. The understanding of this political and ideological context, which favoured the incitement to racial and religious hatred, was key in the analysis of the close link existing between the issue of defamation of religions, and the right to freedom of expression.

The insidious penetration of racist and xenophobic platforms into the political agendas of democratic parties led to a generalised social acceptance of a racist and xenophobic rhetoric and system of values. This political normalisation of racism led to the non-recognition of the general trend towards multiculturalism in most societies and an increased discrimination. The political and social normalisation of racism and xenophobia needed to be understood in the context of growing intellectual legitimation of these phenomena. Incitement to racial discrimination, xenophobia and other related intolerance and the defamation of religions and religious hatred were often observed as two interconnected issues.

Mr. Diene said there were three reasons that he found the statement of Pope Benedict XVI to be profoundly troubling. First, if the issue of violence and faith was a legitimate challenge for all religions to be raised, the most credible approach should be for each religion to start with an internal reflection and introspection on this issue, both at the theological and historical levels. Second, the intended scholarly approach of Pope Benedict XVI should have been based on the basic standard of scholarship: presenting and quoting the two sides of this historic debate between the Byzantine Emperor Manuel II Paleologus and a Persian Muslim scholar. Third, in the current ideological context of amalgamation of Islam and terrorism, already illustrated by the Danish cartoon controversy, singling out a view and image associating only one religion with violence was bound to nourish and give legitimacy to this amalgamation which was the most profound source of Islamophobia. All religious leaders and Governments should take measures to prevent the use of violence in response to this statement and to encourage the promotion of the debate, with fairness and balance, on the issue of violence and faith in all encounters on inter-religious dialogue.

Interactive Dialogue

MASOOD KHAN (Pakistan), speaking on behalf of the Organization of the Islamic Conference, thanked the High Commissioner and the Special Rapporteur on freedom of religion or belief and on contemporary forms of racism for their reports to the Council. The debate being held today, he said, had two contexts: the immediate and the long term. Pope Benedict XVI’s recent speech in Regensburg University had led to protests in the Muslim world. His quotation from the 14th century Byzantine Emperor, Manuel II Paleologos, had deeply hurt the sensibilities of the Muslims. Since then, they had been reassured that the Pope has expressed regrets, had distanced himself from the quotation and given an invitation for frank dialogue with mutual respect. The Pope was seen as a global leader with moral authority—fair to all faiths and value systems. Regression to Medievalism or recrudescence of the Crusades would conflict with the uniting forces of modernity, globalization and religious harmony.

In regard to the long-term perspective, Islamophobia was on the rise in Europe and North America. Islam was equated with terrorism and extremism. In addition, Muslims were being demonised and dehumanised as Jews had been in the interwar period in the last century. The Council at its next session should organize a high-level segment to focus on the incitement to racial and religious hatred and promotion of tolerance. Council members should also start consultations to examine the possibility of drafting a convention to combat defamation of religions and to promote religious tolerance. The Council should use its influence to act as a catalyst in the dialogue of civilizations.

SILVANO M. TOMASI (Holy See) said that where there was doubt, the best interpretor of the text was its author. The Holy Father had explained what he meant, and it was only fair to take him to his word. Twenty-five years ago, the international community had adopted by consensus the important Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Today, the implementation of this Declaration remained in many ways still a distant goal, a work in progress requiring concerted action to promote the standards of religious freedom recognized by the international community. In several countries, intolerance and violent acts directed in particular at people and communities of different religions violated their rights in a variety of ways. Legal structures had not everywhere sufficiently evolved to protect religious minorities and their members, even when they were citizens of the countries concerned.

In conclusion, he quoted Pope Benedict XVI’s words to representatives of Muslim communities last year: “the lessons of the past must help us to avoid repeating the same mistakes. We must seek paths of reconciliation and learn to live with respect for each other’s identities. The defence of religious freedom, in this sense, was a permanent imperative.

BLAISE GODET (Switzerland) said the freedom to have or not to have a religion or to adopt or change a religion, as well as the freedom to manifest a belief or religion individually or collectively, all these and others were enshrined in the Covenant on Civil and Political Rights, but they should not be used to threaten religious harmony, nor to denigrate other religions. The encouragement to Governments to conduct inter-Governmental dialogues on religious intolerance was noted, but the dialogue was not always successful, and did not always eliminate prejudice. There should be a further study between the links between religious freedom, the respect of religious beliefs and harmony in societies.

Expression of opinion, as long as it was not an incitement to religious hatred, was enshrined in the Covenant. Which were the educational, legislative and other measures which the Special Rapporteurs recommended to Governments? Did they have any practical forms of cooperation between religious communities which would give a better idea of good practices? Did they have any specific and concrete recommendations which would avoid polarisation between religions, the speaker asked?

VESA HIMANEN (Finland), speaking on behalf of the European Union, supported a dialogue based on mutual respect and understanding. With reference to the report of the High Commissioner, it was fundamental to promote freedom of religion or belief to protect the right to champion unpopular ideas. In that respect, Special Procedures were essential. The European Union considered that education campaigns were also important to foster tolerance and respect of the freedom of religion or belief.

SWASHPAWAN SINGH (India) said the Council should take forward the reports and the discussion on freedom of expression and freedom of religion or belief. He agreed with the Special Rapporteur that there should be a difference between defamation and freedom of speech. India was a secular State and had been providing a full opportunity for its people to profess the religion of their choice.

NICHOLAS THORNE, (United Kingdom), said the United Kingdom’s views had been expressed by Finland, but the United Kingdom had a few extra words, and was grateful to the Special Rapporteurs. Their speedily compiled report and oral statements had made a valuable contribution to the debate. The clarification of the position of international law was made clear by the Deputy High Commissioner. It was clear that there was a rise in intolerance. These manifestations of intolerance could not be separated from each other, and should be addressed collectively by the international community. The United Kingdom welcomed the broad view of the issues concerned, and had recently held an extensive national debate to examine the issue of balancing religious freedom, freedom of speech, and respect for the views of others.

It was illegal in the United Kingdom to threaten people for their religion, or promote hatred based on faith. United Kingdom legislation protected people equally on the basis of a lack of religious belief - and believed that any measures to eliminate religious hatred should go hand in hand with measures that protected religious freedoms and other belief systems. This could and should be done in respect of others fundamental beliefs. A sensible balance should be drawn between the fundamental right to express views, and the need to protect others from hatred and discrimination. The United Kingdom welcomed the Special Rapporteurs recommendations on this issue. Their calls to respect both freedom of religion and expression and to understand their interaction were supported.

CLODOALDO HUGUENEY (Brazil) commended the report on “incitement to racial and religious hatred and the promotion of tolerance.” It was a demonstration of the Council’s capacity on relevant, sensitive issues to deal with them in a constructive and mature fashion. A fundamental dilemma permeated the report. It was the dilemma on how to balance the need to curb the increasing trend of defamation of religions, incitement to racial and religious hatred with the need to safeguard the freedom of expression and other freedoms that were the very foundation of human rights.


Right of Reply

GUSTI AGUNG WESAKA PUJA (Indonesia), referring to the report on arbitrary detention, said that only one individual had been arrested for entering the country with falsified documents. The arrest could not be considered arbitrary because of the fact that the authorities had applied the law of the country.


CORRIGENDUM

In press release HR/HRC/06/41 of 20 September, the statement by Badriddin Obidov, Uzbekistan, should read as follows:

BADRIDDIN OBIDOV (Uzbekistan) said the Government of Uzbekistan was decisive in combating torture, and had shown full cooperation with the Special Rapporteur, Theo van Boven, during his visit to the country. In addition, the Government abided by national and international obligations. It was not accurate, as stated by Mr. van Boven in his report, that torture was systematic in the country. The Government had taken decisive steps to combat torture. Current legislation prohibited the practice of torture. With reference to the principle of non-refoulement, Uzbekistan was surprised to note that the Special Rapporteurs Leandro Despouy and Manfred Nowak did not have the latest information concerning the return of several citizens. Uzbekistan agreed with various other speakers who had voiced a request to reform the mandate of the Special Rapporteurs and create a coordinating mechanism with the High Commissioner to avoid the Special Rapporteurs lacking objective information of the reality on the ground.

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For use of the information media; not an official record