HUMAN RIGHTS COUNCIL DISCUSSES REPORTS ON COUNTERING TERRORISM, TORTURE, AND INVOLUNTARY AND ENFORCED DISAPPEARANCES

Human Rights Council
AFTERNOON 10 March 2009

The Human Rights Council this afternoon held an interactive dialogue on the reports of Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights while countering terrorism; Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and Santiago Corcuera, the Chairperson of the Working Group on enforced or involuntary disappearances. Speaking in the context of the dialogue, country delegations raised a number of issues, such as the challenges presented by human rights violations such as torture, extraordinary renditions and prolonged detention which showed that the current protection measures for victims of counter-terrorism measures that violated human rights were insufficient and needed to be strengthened.

During the discussion, countries raised such issues as intelligence agencies and monitoring issues, as this was a prime issue of protecting and promoting human rights and fundamental freedoms, and human rights law must be, speakers said, the basis for the establishment of a framework in which terrorism could be effectively countered without infringing on fundamental freedoms. There was also an urgent need to comprehensively investigate the phenomenon of racial, ethnic and religious profiling, within the context of counter-terrorism measures and the need to propose specific recommendations of appropriate remedies to victims. Respect for human rights was important to effectively deal with the threat of terrorism. However, the challenge remained as to what needed to be done to make anti-terrorism measures truly human rights compliant.

All of those who were victims of torture should be free to seek legal redress. There were mixed reactions concerning the report of Mr. Nowak, one third of which dealt with the death penalty. A number of countries thanked the Special Rapporteur for advancing on the discussion regarding the incompatibility of the death penalty with the right not to be subjected to cruel, inhuman or degrading punishment. They said the Human Rights Council should attend to the urging by the General Assembly in resolution 62/149 to request a legal study concerning the compatibility of the death penalty and the right not to be submitted to inhuman, cruel, and degrading treatment. Others said Mr. Nowak had clearly overstepped his mandate, that there was no international consensus on the death penalty, and that the issue was divisive.

The promotion of reconciliation should not be a substitute for bringing perpetrators of enforced disappearances to justice. It was particularly difficult in the past to clarify cases of enforced or involuntary disappearances, and only recently had light been shed on such cases all over the world. Pursuing dialogue with Governments and cooperation with all States with the Working Group ensured that finally all families could find out the truth. All States should ratify the International Convention on Enforced or Involuntary Disappearances, which was the culmination of over 30 years of work.

Responding to questions and issues raised by the delegations, Martin Scheinin, Special Rapporteur on the protection and promotion of human rights while countering terrorism, said in order to be effective, intelligence should be an aggregate of different mechanisms - there was a need for executive, Parliamentary, and judicial oversights, which could together result in proper oversight of intelligence. Cross-border cooperation between intelligence agencies required further examination in the field of oversight. Over time, intelligence had to be converted into evidence - it should not alone be the justification for sanctions beyond temporary interim measures where there was immediate cause for action.

At the beginning of the meeting, the representatives of Equatorial Guinea, the Republic of Moldova and Argentina spoke as concerned countries.

Speaking in the context of the interactive dialogue were the representatives of South Africa, Brazil, Canada, Mexico, Egypt, Pakistan for the Organization of the Islamic Conference, Cuba, Saudi Arabia, Czech Republic for the European Union, Spain, Nigeria, China, United States of America, Russian Federation, France, Bangladesh, Uruguay, Switzerland, Jamaica, Luxembourg, Iceland, Venezuela, Yemen for the Arab Group, Indonesia, Peru, Morocco, Bolivia, Nepal, Algeria, Tanzania, Finland, African Union, United Kingdom, Denmark, Iraq, Iran, Sudan, Botswana, Sri Lanka, Thailand, Singapore, the Republic of Moldova, New Zealand, Malaysia, Slovenia, Norway, Yemen, Tunisia, Austria and Japan.

Speaking in right of reply were the representatives of the Republic of Korea, Angola and Algeria.

The next meeting of the Council will be on Wednesday, 11 March at 10 a.m., when it will be holding its annual full day meeting on the rights of the child.

The Council will resume today's discussion on Thursday, 12 March at 9 a.m. when it should conclude its list of speakers. After that, it will consider the respective reports of the Special Rapporteur on human rights defenders, the Special Rapporteur on freedom of religion or belief, the Representative of the Secretary-General on internally-displaced persons, the Special Rapporteur on trafficking in persons, especially women and children, and the Special Advisor of the Secretary-General on the prevention of genocide.

Statements by Concerned Countries

SALVADOR NGUEMA NCGHAMA (Equatorial Guinea), speaking as a concerned country in response to the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said the Government of Equatorial Guinea, as party to the International Convention on Torture, had promulgated a law concerning the prevention and punishment of torture, which included inhuman, cruel, or degrading treatment. The international community and the Special Rapporteur should remember that the Commission on Human Rights had recommended that the Government continue its work to adopt effective measures to improve the situation of human rights in that country in a resolution, exhorting the specialised mechanisms and bodies of the United Nations, as well as donor countries and other institutions in Equatorial Guinea to provide assistance to the Government to strengthen national institutions which protected and promoted human rights.

The Government had invited the Special Rapporteur to visit the country, and check in situ the achievements of the Government. The Government had created a special commission, chaired by the Public Prosecutor, to check on and punish crimes mentioned under the law in November 2007. The Government reserved the right to make specific observations once it had received the official report of the Special Rapporteur. Equatorial Guinea believed that there was a violation of the Code of Conduct through the ways and means of proceeding by the Special Rapporteur, as the public of the country had not been able to revise the report of the Special Rapporteur. The Government was prepared to cooperate with the Office of the High Commissioner for Human Rights, with a view to the principles contained in the Charter of the United Nations.

CORINA CALUGARU (Republic of Moldova), speaking a concerned country in response to the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said that Moldova welcomed the country visit report presented by the Special Rapporteur on torture, the findings and recommendations of which had undergone a very thorough examination by the Moldovan authorities. The Moldovan Government authorities invested significant efforts and extended their fullest cooperation during the entire visit and in all areas concerned in order to assure a successful visit. The Government of the Republic of Moldova had promoted an open dialogue with the Special Rapporteur on torture and had presented and transmitted to the Special Rapporteur a number of comments and explanations on the initial report. The Moldovan Government highly appreciated that most of the recommendations provided by Moldovan authorities were considered by the Special Rapporteur.

Regarding the references to the Transnistrian region of the Republic of Moldova, the Republic of Moldova reiterated that according to the European Court of Human Rights decision on Ilascu vs. the Republic of Moldova, concern about torture cases that occurred or might occur should not be extended to this region. Only after the settlement of the Transnistrian conflict through the negotiation in “5+2” format with respect of the territorial integrity of the Republic of Moldova and after reintegration of the country, would it be possible to address directly the existing gaps in this domain. The Republic of Moldova had undertaken concrete action in order to minimize the existent gap between the normative framework and the realities on the ground, making efforts to implement the current legislation and to improve the situation in the fields of major concern.

SEBASTIAN ROSALES (Argentina), speaking as a concerned country on the report of the Working Group on enforced or involuntary disappearances, said Argentina was thankful for the report presented by the Working Group which was held within the framework of their visit to the country from 21 to 24 July 2008. The Government of the Republic of Argentina was proud to have hosted the Working Group’s 85th session in Buenos Aires in August 2008. This highlighted the high priority Argentina gave to the fight against impunity and systematic violations of human rights. The Working Group had been created in the context of the Argentinean case over 30 years ago. A series of special measures had been adopted since then by the Government, which showed the efforts taken and the commitment of the Government to fight the systematic disappearance of victims.

The Government of Argentina had adopted a draft law on and sanctioned enforced disappearances, which was considered a self standing crime, and also included a whole series of crimes which were related, which had been enforced in this code. Argentina also highlighted the Government’s need to ensure the right to truth. Furthermore, Argentina was convinced of the importance of using forensic science in connection with human rights violations, the need to supply support to NGOs in this and other contexts, as well as ensuring that necessary measures were implemented with the aim of promoting the memory of enforced disappearances. The Government was currently working on providing witness protection for victims, and as such, adopted a national programme for witness protection. The Government of Argentina was particularly committed to the goals expressed within the context of the Working Group, and would continue to be committed to work within the mandate of the Working Group. Argentina was in favour of the early entry into force of the Convention, and said that it was important to continue efforts in order to clarify cases that were pending.

Interactive Dialogue on Promotion and Protection of Human Rights while Countering Terrorism, on Torture, and on Enforced or Involuntary Disappearances

GLAUDINE J. MTSHALI (South Africa) said the Special Rapporteur on the promotion and protection of human rights while countering terrorism was to be commended for the extensive and substantive work undertaken during the current reporting period, in particular, the broad consultation process with different stakeholders. The current report covered very complex and legitimate issues relating to the work of the intelligence community and their oversight in the fight against terrorism. There should be a clear and comprehensive legislative framework at the domestic level pertaining to the operations of these entities. Over and above this, issues such as parliamentary oversight and access to certain classified information, among others, were critical.

South Africa advocated a principled view that there was an urgent need to comprehensively investigate the phenomenon of racial, ethnic and religious profiling, within the context of counter-terrorism measures and the need to propose specific recommendations of appropriate remedies to victims. The challenges presented by human rights violations such as torture, extraordinary renditions and prolonged detention had proved that the current protection measures for victims of counter-terrorism measures that violated human rights were insufficient and needed to be strengthened.

MURILO VIEIRA KOMNISKI (Brazil) said that Brazil reaffirmed its conviction that human rights law must be the basis for the establishment of a framework in which terrorism could be effectively countered without infringing on fundamental freedoms. Regretfully, one of Brazil’s citizens, a migrant worker, had been executed when taken for a foreign terrorist. There could not be incompatibility between the protection of human rights and counter terrorism measures. Brazil welcomed Mr. Scheinin’s emphasis in his current report on the role of intelligence agencies and their oversight in the fight against terrorism. Brazil fully agreed that all counter terrorism measures must be in line with States’ human rights international and national obligations. Brazil supported the proposal of the Working Group to hold a special forum on the right to be arbitrarily deprived of liberty in the context of counter terrorism actions. Could the Special Rapporteur further comment on these issues? Brazil also wished for further comments on the recommendations regarding the level of accountability of intelligence services and the appropriate supervision and review of their measures.

On the report presented by Mr. Nowak, Brazil thanked and commended the Special Rapporteur for advancing on the discussion regarding the incompatibility of the death penalty with the right not to be subjected to cruel, inhuman or degrading punishment. Brazil supported the possible request for a more comprehensive legal study on the topic. Brazil stressed the current trend of abolition of death penalty in the world, as highlighted in the report. Brazil also welcomed Mr. Nowak’s dedication to the issue of torture and ill-treatment as a direct or indirect result of drug control policies.

DANIEL OLMER (Canada) said that Canada was supportive of promoting truth and reconciliation as a means of ensuring non-repetition of human rights violations. Canada recognized that transitional justice mechanisms such as truth and reconciliation commissions could be powerful tools in supporting the healing process in situations where systematic human rights violations, including enforced disappearances, had been committed. Canada had long been a strong supporter of addressing impunity, and welcomed the distinction the Working Group on enforced or involuntary disappearances had made in pointing out that the promotion of reconciliation should not be a substitute for bringing perpetrators to justice. Canada asked, to hear the Working Group’s suggestions on how States could use mechanisms that promoted truth and reconciliation, while at the same time remaining committed to combating impunity.

Canada commended the Working Group for raising awareness in their report on the specific issues facing women and children in the context of enforced disappearances. The hardships faced particularly by women, and the vulnerabilities of children, were of serious concern. Canada asked, what steps did the Working Group feel should be taken to ensure that the needs of women and children were taken into account in response by States to the issue of enforced disappearances?

JOSE GUEVARA (Mexico) said Mexico was prepared to continue to cooperate with the work of the Special Procedures of the Council, and recognised the work done by the Working Group on enforced and involuntary disappearances. This offence had been criminalised in the Criminal Code of Mexico. It was particularly interesting to look at the analysis by the Special Rapporteur on torture on the application of the death penalty as an inhuman, cruel, and degrading treatment. Mexico welcomed discussion that had been provoked by the Special Rapporteur, and wished to continue to discuss the issue with a view to abolishing the death penalty.

Various Special Procedures had taken up the subject of the rights of persons deprived of liberty, and the importance of having protective mechanisms for those affected by this. What did the Special Rapporteur believe was the best way to protect all rights of those deprived of their freedom. Mexico welcomed the findings of Mr. Scheinin on intelligence agencies and monitoring issues, as this was a prime issue of protecting and promoting human rights and fundamental freedoms, and the Special Rapporteur should continue his efforts along these lines.

AMR ROSHDY HASSAN (Egypt) said Egypt would welcome Mr. Scheinin for a visit to Egypt next month. Regarding the report presented by Mr. Nowak, Egypt would call for a vote concerning any reference to this report in any United Nations resolutions. Egypt said Mr. Nowak had clearly overstepped his mandate. One third of his report dealt with the death penalty, which had nothing to do with his mandate as Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Egypt had found no reference in any human rights treaty that prohibited the death penalty. Mr. Nowak had allocated one third of the report to the issue, on the pretext that he had received a question from the European Union about this at the General Assembly. This was not the way that mandates were set out. Would Mr. Scheinin work in the same way if Egypt asked him to devote attention to a specific subject like the right to food? Egypt could not support any more the mandate on torture, if the discussion would be distorted and instead of torture the death penalty was discussed. Was the death penalty now seen as torture? How could a holder of a United Nations title, as United Nations Special Rapporteur, use his title to sign non-United Nations documents? Did they do so to give the document the United Nations-stamp? This kind of reporting did not help the work of the Council because it divided the Council. There was no longer consensus in the Council on the resolution on torture.

IMRAN AHMED SIDDIQUI (Pakistan), speaking on behalf of the Organization of the Islamic Conference, said that the Organization of the Islamic Conference agreed that respect for human rights was important to effectively deal with the threat of terrorism. However, the challenge remained as to what needed to be done to make anti-terrorism measures truly human rights compliant. Terrorists violated one of the fundamental human rights – the right to life. Eradication of the threat they posed required establishment of necessary legal and administrative structures as well as improvement in the existing ones. This balance between legitimate security concerns and compliance with human rights norms needed to be carefully ensured.

In his report, the Special Rapporteur had dealt with various methods and procedures developed to counter terrorism particularly after the tragic attacks of 9/11. In many cases, Muslim minorities living in various countries had been victims of those procedures. Security concerns of any State should not provide the justification for circumventing established human rights norms. Pakistan asked to hear the views of the Special Rapporteur on whether the methods for sharing intelligence on terrorist individuals and entities, established by various United Nations bodies dealing with counter terrorism, were in compliance with human rights standards? Credible intelligence and swift action on its basis were central to fighting terrorists or neutralizing any terrorist plan.

MARIA DEL CARMEN HERRERA (Cuba) said the Special Rapporteur had taken up the different facets of the problem of terrorism and the serious human rights violations that were occurring with impunity in the context of the so-called war on terrorism. Cuba objected to those who supported the tenet that in the fight against terrorism, "anything goes". Cuba agreed with the Special Rapporteur that there were serious violations of international law in this context. Acts which violated human rights in the fight against terrorism had proliferated, and enormous injustices were taking place against those who were fighting terrorism. The Special Rapporteur should pay attention to the anti-Cuban terrorist organizations operating in Miami, and the rights of the five Cubans who were detained in the United States.

With regards to the report of Mr. Nowak, he had placed considerable emphasis on the subject of the death penalty - and it did not seem appropriate for him to do so, as this was highly controversial and there was no international community consensus on the topic. Given the inter-relationship that existed between some of the elements taken up in the report with the mandate of the Special Rapporteur, he should express his opinion with regards to the growing attribution of powers given to intelligence agencies, including inhuman, cruel, and degrading treatment perpetrated by them on suspects.

ABDULWAHAB ABDULSALAM ATTAR (Saudi Arabia) said that, regarding the report of Mr. Scheinin and referring to best practices, Saudi Arabia was one of the first countries where the fight against terrorism was successful. Saudi Arabia had adopted a number of measures in this regard, including a rehabilitation programme for former prison inmates. Ninety per cent of those who participated in the programme had abandoned their deviant views. To correct the participants’ beliefs, an online forum had been used. In an effort to combat extremism, a national programme had been launched. Also, a website had been launched against fatwas issued by terrorist groups. This had been very successful.

Saudi Arabia had a reservation regarding capital punishment which Mr. Scheinin had referred to in his report. This issue went over the mandate of the Special Rapporteur, since there was a Special Rapporteur on extrajudicial killings. Going beyond the mandate was not acceptable for a Special Rapporteur.

PETR PRECLIK (Czech Republic), speaking on behalf of the European Union, thanked all the representatives of Special Procedures for the presentation of their reports to the Council. The Special Rapporteur, Mr. Scheinin, focused his last report on the role of intelligence agencies and their oversight in the fight against terrorism. As those agencies played an important role in the fight against terrorism, it was indeed essential that their actions and procedures respected human rights and fundamental freedoms. The European Union noted that he formulated quite far reaching recommendations in his report addressed to different parts of State authorities that would need to be studied carefully.

The Special Rapporteur recommended in particular that the use of special investigative techniques by the intelligence agencies must be subjected to appropriate supervision and review. European Union Member States recognized the importance of effective oversight by parliaments and the judiciary. In general, in European countries, intelligence agencies were under the oversight of parliaments or specific bodies created by parliaments to this end. European Union Member States were indeed of the opinion that this was an effective way to proceed. Was this the appropriate review the he had been referring to? As reflected in Mr. Scheinin’s report, the Special Rapporteur visited different countries and participated in a number of conferences and seminars. This had certainly enabled him to have a global overview of the situation of human rights in the fight against terrorism. The European Union was interested to know what his assessment was in this regard.

SILVIA ESCOBAR (Spain) said Spain had listened to the debate on the death penalty in the light of inhuman, cruel, and degrading treatment and that on corporal punishment, and was promoting an initiative on a universal moratorium on executions, with the aim of universal abolition of the death penalty. It was particularly relevant, as other delegations had stated, for the Human Rights Council to attend to the urging by the General Assembly in resolution 62/149 to request a legal study concerning the compatibility of the death penalty and the right not to be submitted to inhuman, cruel, and degrading treatment. Spain was in favour of this dynamic interpretation of treaty rights and human rights, and thanked the Special Rapporteur for his approach.

IFEANYI NWOSU (Nigeria) said that the Nigerian Government had taken measures to address the culture of impunity which as the Special Rapporteur had identified, constituted an environment which was conducive to further acts of torture. Nigeria reiterated that the Government did not condone torture as a policy and that efforts were being made to re-orient the attitude of law enforcement officers to end the practice. Anybody who was a victim of torture was free to seek legal redress. Nigeria, as always, was prepared to cooperate with the Council or any other stakeholder who was interested in finding out the facts regarding torture in Nigeria.

Further, a draft bill on the establishment of an Anti-torture Commission was currently being considered in the Senate and would be passed into law soon. The Commission, when established, would be independent and transparent in its operation. It was true that the criminal justice system in Nigeria relied heavily on confessions of the accused; it was essential to place on record that confessions extracted under torture, when and where they occurred, were inadmissible by the judiciary. Victims of torture had always sought and obtained legal redress, including compensation. The Government had put in place mechanisms to separate pre-trial detainees from convicted prisoners; juveniles from adults; and female detainees from their male counterparts.

QIAO LI (China) thanked the Special Rapporteurs and the Working Group for their work and reports. They underlined the points on the question of human rights and counter terrorism; it was a great challenge facing the world today. The international community needed to work in cooperation to face them. On torture, China believed that the Committee should follow the Convention as closely as possible so as to implement its provisions in an inclusive way, without selectivity or the politicisation of torture. On the use of capital punishment, China said that capital punishment was under strict control in China, and only applicable to the most severe of cases. The Government of China was concerned about eliminating the phenomenon of enforced disappearances, and worked to further implement international instruments in this regard. Furthermore, China took note of the ratification by a number of countries of the Convention.

MARK STORELLA (United States) said on his second day in office, President Obama had issued three Executive Orders, which addressed many of the topics covered by the Special Rapporteurs in their reports. For example, they mandated the closure of the Guantanamo detention facility, and all CIA detention facilities, as defined by the Order. Furthermore, the Orders specified that all United States agencies should conduct interrogations of individuals in custody or under the effective control of the United States, in any armed conflict, using only the techniques authorised or listed in Army Field Manual on intelligence collection. In his statement accompanying the signing of the Orders, President Obama pledged that the United States would confront terrorism "in a manner consistent with our values and ideals". The United States looked forward to working with the Special Rapporteurs and the international community to continue to address these important issues.

ROMAN KASHAEV (Russian Federation) said that Russia shared most of the concerns mentioned by Mr. Scheinin. There were restrictions on confidentiality of telephone calls and confidentiality of email correspondence. People’s and car movements were registered by thousands of video cameras. Another very topical problem was touched upon as well: when the authorities of the State were overburdened, their tasks were transferred to private companies. Human rights were used by terrorists to evade detention. Regarding the principle aut judicare aut dedere, the extradition of terrorists, Russia said that they were divided in good guys and bad guys. Concerning a concrete case, a Spanish citizen detained in Russia had been visited by a Spanish delegation with regard to Russia’s compliance with human rights obligations. Concerning methods to carry out the death penalty, Russia said that they must be humane and not give way to unproportional suffering. Russia added that drug addiction was a direct threat to the right to life and should not be accepted. Russia had not been able to receive the Special Rapporteur yet in conditions which would suit the Special Rapporteur and would not conflict with Russian national legislation.

EMMANUEL ROUSSEAU (France) said France appreciated the presentation by Mr. Corcuera, Chairman of the Working Group on enforced or involuntary disappearances. France also thanked all members of the Working Group for their efforts in this context. It was particularly difficult in the past to clarify cases of enforced or involuntary disappearances, and only recently had light been shed on such cases all over the world. Pursuing dialogue with Governments and cooperation with all States with the Working Group ensured that finally families could find out the truth. France was thinking of the fate of all peoples, in particular that of women and children who had been exposed to forms of violence. France was to present a draft resolution in the current session of the Council in order to bring forth some of the work of the Working Group. France urged the need for States to ratify the International Convention on Enforced or Involuntary Disappearances, which was the culmination of over 30 years of work.

MUSTAFIZUR RAHMAN (Bangladesh) said the Special Rapporteur on torture had devoted considerable effort to examine the death penalty in the context of his mandate, apparently due to a question from a member of the European Union, and this was way outside his mandate. The question could necessarily arise about impartiality - a cardinal condition for a mandate holder. The role and responsibility of a mandate holder was well defined in the relevant resolution. The attempt to bring in the issue under the purview of inhuman, cruel, and degrading treatment or making a parallel with corporal punishment was ill-advised, ill-conceived, and ill-judged.

Human rights were a developing concept and international treaty bodies often applied a dynamic interpretation of human rights law, but it should be better left with those who were responsible, qualified and mandated. The Special Rapporteurs should do their job with which they were entrusted. The mandate of the Special Rapporteur on torture was already long enough, and there was no need or justification to expand the work beyond what had been mandated by the Council. The issue of the death penalty was a divisive one. There was no international consensus on the matter, and it was clear the Special Rapporteur had overstepped his mandate. This was not a good instance for the mandate, for the Special Procedure, or for the human rights regime.

ALEJANDRO ARTUCIO RODRIGUEZ (Uruguay) said that the analysis carried out by the Special Rapporteur on torture regarding the use of death penalty and corporal punishment was clear. The death penalty had been abolished in Uruguay. Corporal punishment was also prohibited and could be considered as a criminal offence. Uruguay had responded to the Special Rapporteur’s request. It had been informed by the Special Rapporteur that he would visit Uruguay by the end of the month. He would be able to interview any persons that he chose. Regarding the report on enforced disappearance, Uruguay said that this had been a lengthy process for Uruguay which had started in 1985 when Uruguay started to recover from dictatorship. Since then, there had only been one case in Uruguay. The Government affirmed its policy with regard to the horrors that had taken place during the dictatorship which consisted of four pillars: truth, justice, reparation and never again.

NICOLAS CHAMOREL (Switzerland) thanked the Special Rapporteur on counter terrorism and the Special Rapporteur on torture for their presentations and their respective reports. In the report on counter terrorism the Special Rapporteur stated that countries frequently subcontracted intelligence from outside agencies or private companies, as such, Switzerland asked if the Special Rapporteur believed that this was a trend, and if so, did he believe that those military enterprises and private security companies would be more susceptible to contributing to an increase in violations of human rights? Further, Switzerland asked how could one reconcile the protection of information, and the right of persons in question to know information pertaining to why he or she was detained?

ANDREA DUBIDAD-DIXON (Jamaica) said Jamaica was favourably disposed to a visit by the Special Rapporteur on torture. The report raised several concerns for the delegation - Jamaica had a difficulty understanding the logic of a report devoted almost exclusively to the issue of the death penalty. Several issues and questions had been raised in the context of the meeting when this issue was raised, including gender issues related to torture, acts of abuse by private actors, improving human rights in situations of solitary confinement and the treatment meted out to persons with disabilities - this explained the concern that the report was so selective. There was a fundamental and conceptual flaw in any argument that, ab initio, sought to equate the death penalty with torture and other inhuman, cruel, and degrading treatment or punishment.

Jamaica was equally disturbed by the conclusions and recommendations put forward by the Special Rapporteur, as they seemed to reinforce this supposed link. The death penalty was compatible with international law, as long as it was carried out in keeping with certain conditions, and it was the right of each State to determine whether or not to apply it. With regards to the issue of a human rights-based approach to drug policies, there should be an acknowledgement in the text of the resource constraints faced by many developing countries in meeting their obligations.

CHRISTINE GOY (Luxembourg) said that Mr. Nowak’s report devoted a large portion to the death penalty and its compatibility with the prohibition of inhuman and degrading treatment. Luxembourg fully agreed with Mr. Nowak’s analyses and the extensive concept of human dignity and the prohibition of any form of inhuman and degrading treatment. The constant national jurisprudence, as well as a universal abolitionist tendency, confirmed this analysis which should be carried further. Luxembourg called on the Council to apply a zero tolerance to a practice which was in complete contradiction to human dignity. The fight against terrorism was necessary, but it had to be led respecting human rights and international humanitarian law. All States should get involved in banning forever the often secret practices of torture and inhuman treatment, enforced disappearances and arbitrary detention. The closing of the base of Guantanamo was a positive development in that regard. Luxembourg asked how Mr. Nowak explained the absence of cooperation of so many countries if there was a need to respond to his request for country visits.

INGIBJORG DAVISDOTTIR (Iceland) said that effectively countering terrorism was an important task of the international community and of each Government. But counter-terrorism measures, if they were to protect everyone’s values for the long term, must take place with full respect for the rule of law, international law – and in particular international human rights law. States – and the international community – had an obligation to protect their citizens from terrorism. Iceland welcomed the decision by the United States Government to close the Guantanamo Bay detention centre.

It was vital that all Governments – in particular those which presented themselves as leaders in the field of human rights – adopt and apply anti-terrorist legislation carefully and precisely. Governments which misapply anti-terrorist legislation risked the credibility of their anti-terrorism measures as a whole – both with their public and with their international partners. Iceland asked the Special Rapporteur if he was planning to advise Governments on best practices in adopting and applying anti-terrorist legislation?

FELIX PENA (Venezuela) said Venezuela was pleased that the Special Rapporteur on terrorism had taken up the issue of State responsibility for acts committed by non-State actors in the context of the fight against terrorism, which had been used as an excuse to carry out activities that were not in agreement with the principles of human rights and fundamental freedoms. It was appropriate for the Special Rapporteur to take up this subject together with the Working Group on mercenaries, as intelligence agencies used mercenaries either covertly or overtly. With regards to the Montreux Document, this could be used as a set of guidelines in this area, but there should be further clarification and joint work on this subject.

With regards to the report on torture, subjecting persons to treatment or tests without their agreement could be a violation of their physical integrity. The treatment of addiction should be voluntary, and the patient should be allowed to refuse such treatment. The Special Rapporteur should explain whether the conditions under whether addicts were treated could include treatment without their agreement for their rehabilitation.

IBRAHIM S. AL-ADOOFI (Yemen), speaking on behalf the Arab Group, said that regarding terrorism, the Arab Group attached great importance to the report. The Arab world was hardest hit by a wave of terrorism, however, the Western world only realized the threat posed by terrorism after the attacks of 9/11. The Arab Group reiterated its call to the United Nations to provide more support to its Member States to counter terrorism and put an end to this scourge. There was another kind of terrorism, which was what Israel carried out in Palestine. This was collective punishment and constituted State terrorism. Regarding torture, the Arab Group said that it also attached great importance to the eradication of torture. Torture was contrary to all human rights. The Arab Group regretted that the report devoted more than a third to capital punishment and tried to equate it with torture. The mandate of the Special Rapporteur had nothing to do with the application of death penalty and the Rapporteur had therefore gone over his mandate. The Arab Group wished to emphasize that the national criminal laws should be respected and not be linked to human rights violations.

WIDED PRASOJO (Indonesia) expressed its appreciation to the Special Rapporteurs and Working Group for their comprehensive reports. As a victim of a series of terrorist attacks, Indonesia knew only too well the agony caused by those heinous acts. Indonesia had made serious headway in its counter-terrorism efforts, with most of the Bali bombers identified, arrested, and tried in accordance with the laws of the country. The same was true of the Marriot and Kuningan bombers. However, all suspected terrorists were treated humanely and accountably. Indonesia did not recognize incommunicado detention. The independent press and vibrant civil society of Indonesia were additional tools in guarding the country’s democracy and due process of law. The challenge now was to advance international cooperation that addressed the root causes of terrorism through a soft line and hard line, with a human rights dimension.

Indonesia also reiterated the need for Special Rapporteurs to conduct further thematic studies on the issue of torture in order to assist States, including Indonesia, to better implement the Convention against Torture.

INTI ZEVALLOS AGUILAR AJI (Peru) said Peru expressed its agreement with the conclusions and the conceptual framework contained within the report of the Special Rapporteur on counter-terrorism that it was the State's responsibility to protect its integrity and civilians from terrorist threats but that this should be done without violating human rights. Peru had repeatedly dealt with terrorist groups, and was of the opinion that it was only through respect of human rights and through due legal process that these criminal gangs could be dealt with.

OMAR HILALE (Morocco) said that, regarding enforced disappearances, the Working Group’s human resources should be enforced so that it could fully carry out its mandate. Concerning the cases of enforced disappearance, the Moroccan strategy was based on dialogue and cooperation, which had allowed Morocco to settle more than 80 per cent of the cases. A reconciliation forum that had been established by Morocco’s King had allowed considering many more cases. So far, 16,000 individuals had benefited from compensation. Morocco reiterated its fruitful cooperation with the Special Rapporteur on enforced disappearances.

MARTIN SCHEININ, Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism, responding to the questions and issues raised by speakers, said the interventions represented a great deal of interest, and he had noted a certain degree of enthusiasm for ensuring human rights in the fight against terrorism, and this was a positive trend. The pendulum was shifting back, and there was momentum for change. He welcomed and took note with great interest of the comments and information provided by many delegations, but time did not allow him to address them. He also listened to the representative of Spain who addressed the mission report - it had been a very useful process to have the dialogue with the Government of Spain, and the remaining areas where there was potential disagreement had been isolated.

With regards to other interventions, South Africa was thanked for its continuing interest in the mandate - an interesting dialogue with the intelligence agencies of that country had been held, and this had been most helpful. In order to be effective, intelligence should be an aggregate of different mechanisms - there was a need for executive, Parliamentary, and judicial oversights, which could together result in proper oversight of intelligence. Cross-border cooperation between intelligence agencies required further examination in the field of oversight. The Montreux Document was a source of inspiration, as the provisions therein covered even the most demanding situations, and explained how intelligence agencies should act in the less demanding situations. Over time, intelligence had to be converted into evidence- it should not alone be the justification for sanctions beyond temporary interim measures where there was immediate cause for action. Countries within the Security Council did not share intelligence, with the end result was that people were being listed without the proper intelligence estimation.

MAYSA URENA MENACHO (Bolivia) said that Bolivia was grateful for the presentation of the three reports, but would focus on the report by the Special Rapporteur on enforced or involuntary disappearances. In Bolivia there were two important bodies for the work on enforced or involuntary disappearances, one was the Institutional Body for the Clarification of Enforced Disappearances, and the other was the National Commission for Reparations for Victims of Political Violence. These bodies received and responded to 28 communications. Bolivia regretted that the responses of those communications were not ready in time for inclusion into the present report.

The criminal code in Bolivia included penalties for enforced disappearances. In addition the Government supported the scientific investigation of body remains for the restitution of families of victims of enforced or involuntary disappearances. With regard to the replies sent by the Government in reference to each of the 28 cases, Bolivia requested the High Commissioner to cooperate for the early translation of this document. The Government of Bolivia did not have a problem providing backing to this document, and would continue to contribute to the work of the Working Group in the realization of their goals.

Mr. K. RUDRA (Nepal) said that Nepal had extended a wholehearted cooperation to the Working Group on enforced or involuntary disappearances during its visit to Nepal in 2004. A total of 214 cases had been clarified so far. A comprehensive update on the implementation of the recommendations of the Working Group was being prepared and would be transmitted shortly. Almost all of the outstanding cases referred to in the report dated back to the time of armed conflict in the country. A good number of cases of such people had been clarified, some might have changed their places of residence and work or gone abroad in search of employment, some appeared to have concealed their true identities and were not even aware of their names being included in the suspected list of the disappeared persons. Nepal was seriously working and cooperating with the Working Group to clarify all cases.

On the report of the Special Rapporteur on torture, Nepal appreciated his analytical work. Nepal extended full cooperation to his visit to Nepal in 2005 and had been closely working with him. Nepal had implemented most of his recommendations despite limited resources and capacity constraints. Nepal reiterated that it did not condone torture in any form whatsoever. Nepal had already abolished the death penalty. Nepal firmly believed that the value of Special Procedures could be greatly enhanced by maintaining objectivity and constructive dialogue in a spirit of cooperation.

LAZHAR SOUALEM (Algeria) said with the setting-up of the institutional structure of the Council, the mandates of the former Commission had been reviewed to give greater visibility and universal dimension. Algeria was concerned that the Special Rapporteur on torture had become involved in the issue of the death penalty, as this was not in his purview, and weakened his terms of reference. Algeria had, in the 1980s, issued resolutions on the issue of criminal attacks due to terrorism. Algeria stressed the fact that questions linked to public order and security were questions that came under the Constitutional order of States and came under due legal mechanisms. The Special Rapporteur should give his view on the work done by the Committee against Terrorism under the Security Council - was there no conflict between their mandates?

On three occasions, Algeria had informed the Working Group on situations of enforced or involuntary disappearances. Yet, once more, it was regrettable that the Working Group passed over in silence the replies of Algeria, which provided an unambiguous reply to the alleged cases of disappearances, and Algeria called upon the Working Group to reflect this in their next report.

BARAKA LUVANDA (Tanzania) welcomed the report by the Special Rapporteur on countering terrorism, and commended him for the comprehensive presentation of his report. Tanzania took note of his concerns over the lack of oversight and political and legal accountability which had facilitated illegal activities by intelligence agencies. Tanzania was in full agreement with the Special Rapporteur’s recommendation to elaborate and adopt guidelines for human rights compliance and best practices by intelligence agencies. Tanzania being a victim of terrorist attacks in 1998, had responded to that tragic incident with caution in mind. So far, the Government had not only acceded to most of the terrorism-related conventions, but also had enacted specific legislation – Prevention of Terrorism Act No.21 2002 – which had taken on board most of the issues that the Special Rapporteur proposed in his report.

PEKKA METSO (Finland) said, regarding the promotion and protection of human rights and fundamental freedoms while countering terrorism, Finland thanked the Special Rapporteur for his extremely valuable work. Finland fully agreed with the Special Rapporteur that the collection and sharing of what the Special Rapporteur called signal intelligence must be conducted with respect to the right to privacy and the principle of non-discrimination. Going beyond the issue of the role of intelligence agencies, Finland asked for his views in general on how to tackle the dilemma States faced in different connections: How to best gather specific enough information that enabled the identification of discriminatory practices, while at the same fully respect the limitation on data gathering by the principle of non-discrimination? Finland also shared the opinion of the Special Rapporteur that there was now a momentum to compile the best practices on the legal and institutional framework and measures to comply with the consultative process that he envisaged to this end?

JAMES EVANS (United Kingdom) said the United Kingdom noted that the report of the Special Rapporteur on terrorism contained a number of allegations about United Kingdom’s involvement in human rights abuses related to interrogation and extraordinary rendition. These issues had been the subject of considerable attention in the United Kingdom over the last couple of weeks, and the Government had made its position on both these issues abundantly clear.

The United Kingdom abhorred torture - it did not participate in, solicit, encourage or condone it. And it condemned unreservedly any practice of extraordinary rendition to torture. The United Kingdom took any such allegations very seriously and had mechanisms in place to deal with them appropriately. These included the Investigatory Powers Tribunal, and, where appropriate, criminal proceedings. The United Kingdom would be following up with the Special Rapporteur on the specifics of his allegations.

ARNOLD SHIBSTED (Denmark) thanked the Special Rapporteurs and the Working Group for the presentation of their reports, and reassured them that they could count on Denmark for strong support and commitment to cooperation. Denmark asked, with regard to the Special Rapporteur on countering terrorism, concerning his stance on diplomatic assurances, how did he see diplomatic assurances under international law; and did diplomatic assurances violate international law? Denmark found it relevant to look at the issue of torture and other cruel, inhuman or degrading treatment or punishment, with respect to judges, police, attorneys of law and health officials, among others. Denmark intended to pass a resolution on the rights of health personnel in the context of preventing torture and other cruel, inhuman or degrading treatment or punishment and asked the Special Rapporteur for his views in this regard. Denmark noted that Mr. Scheinin highlighted through his presentation that one of his concerns was the use of secret detention facilities as they could be used for the infliction of torture and other cruel, inhuman or degrading treatment or punishment, and as such Denmark asked if there had been any progress on this issue.

FARIS AL-ANTI (Iraq) said that the Iraqi Government was ready to settle any cases of enforced disappearances. The events of 2003 made it possible to raise the veil on thousands and thousands of documents regarding enforced disappearances. Some enforced disappearances also took place after 2003, but this was because of terrorist groups that had been able to enter Iraq. Many institutional bodies had now started to study cases of enforced disappearances. The Government had promulgated a law to protect common graves. Some of them were now being opened and the DNA was analyzed in order to identify the victims. Regarding the report on torture, Iraq was looking forward to facilitate the visit of the Special Rapporteur which was going to take place soon.

MOHSEN ARAGHI (Iran) said with regard to the report of the Special Rapporteur on torture, there were some unprecedented elements in the report which were a matter of concern and required special consideration. In particular, the report argued that capital punishment should be considered a form of inhuman, cruel, and degrading treatment or punishment and implicitly questioned the legality of the death penalty under international law. The Special Rapporteur was clearly overstepping his mandate on torture and other inhuman, cruel, and degrading treatment or punishment by advocating the abolition of the death penalty, which was a judicially administered criminal punishment, applied with the necessary legal safeguards.

Moreover, there was no international consensus for or against the death penalty or corporal punishment applied in accordance with due process of law and judicial safeguards. Every country had the sovereign right, under international law, to decide on its own criminal justice system, and whether to maintain or abolish the death penalty or corporal punishment was a question for each country to decide for itself. Therefore, Iran considered these segments pertaining to the issues of the death penalty and corporal punishment completely irrelevant to the mandate and rejected them accordingly.

OMER DAHAB FADOL MOHAMED (Sudan) asked the Chairman of the Working Group on enforced or involuntary disappearances if he was aware of the children who were missing and what were the steps taken to find the children in France. With regards to the death penalty, it was the most important cultural factor in the field of human rights. Capital punishment in many cultures was different than what was known by some. Some cultures utilized this penalty only in some cases. Sudan imposed capital punishment, however, it had the necessary controls and guarantees in place, which went beyond the International Covenant on Civil and Political Rights. It was not right of the Special Rapporteur to say that imposing the death penalty was a violation of human rights. In doing so he refereed his own personal and legal impositions, rather than sticking to his mandate.

BOOMETSWE MOKGOTHU (Botswana) said that Mr. Nowak had devoted at least 33 per cent of his report to discussion of the issue of capital punishment. In principle, Botswana was uncomfortable with the consideration of this issue under this mandate, as Botswana believed that this was an unnecessary distraction that the Human Rights Council could ill afford. Botswana viewed the discussion of this issue as an unjustified extrapolation of the Special Rapporteur’s mandate and one which should not go unchallenged. This was an issue that did not command universal consensus. The Special Rapporteur should best perform his work without allowing such undue external influences. The fact that the issue of capital punishment was extremely divisive and brought out animosity could not be overemphasized. Botswana firmly rejected the approach taken by the Special Rapporteur in his report to present a conveniently skewed re-interpretation of international human rights law, under the pretext of dynamic interpretation. Botswana cautioned that any attempt to review existing international human rights law that did not contemplate intergovernmental negotiations and tolerance for diversity – disguised under the exercise of Special Procedures mandates - was detrimental to international human rights law. Capital punishment did not constitute a form of torture or a deprivation of the right to personal integrity and human dignity, an unfortunate misconstruction that the Special Rapporteur appeared to stimulate.

RAJIVA WIJESINHA (Sri Lanka) said Sri Lanka had long felt that the distinction between civilians and servicemen, whilst vital in a combat situation, should not allow the deaths of servicemen due to sudden terrorist attacks to be treated lightly. Sri Lanka welcomed the forthright condemnation by the Working Group on enforced or involuntary disappearances of the activities in this regard by non-State actors. There was a complication caused by the terms of the mandate of the Working Group, since anyone who wished to complain to them felt they had to throw suspicion on the State. Circumspection was also urged with regards to sources - undue indulgence to indiscriminate allegations could take away from the important responsibilities of the Group. This was a problem that must be solved, and the sooner the better. Sri Lanka would be happy to welcome the Working Group.

SIHASAK PHUANGKETKEOW (Thailand) said, on the question of terrorism, while it was imperative that States took effective measures to prevent and counter terrorism, Thailand fully agreed that those measures should fully comply with international human rights standards, and should not negatively impact the full and effective enjoyment of human rights of the persons involved. Thailand agreed that a specific and comprehensive legislative framework would be needed to help define the mandate of intelligence agencies and guide their practices.

On torture, Thailand placed great importance on the protection of all persons from torture and other cruel, inhuman or degrading treatment or punishment without exception. Being a State Party to the Convention against Torture, Thailand was committed to doing its utmost to protect all persons from such treatment. With regard to the Special Rapporteur’s report on the issue of torture, Thailand took due note of the question concerning the death penalty and its compatibility with the right not to be subjected to cruel, inhuman or degrading treatment or punishment, and was of the view that since there was no international consensus on the matter, further consideration was needed.

TAN YORK (Singapore) said, regarding the report of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment, that the Special Rapporteur’s entire argument on the death penalty was based on the premise that corporal punishment in all its forms had been outlawed by international law, and that the death penalty was merely a more aggravated form of corporal punishment. The premise was wrong because, to being with, there was no international consensus that corporal punishment in all its forms was incompatible with international human rights law. The opinion and comments of intergovernmental human rights monitoring bodies cited were not universally accepted by States and did not enjoy the status of binding rules of international law. The vast majority of cases cited by the Special Rapporteur, by disapproving specific applications of the death penalty, reaffirmed the view that the death penalty per se was not contrary to international human rights law.

Singapore also rejected the Special Rapporteur’s advocacy of a liberal treatment of drug offenders. Singapore believed in preventing the harm of drug abuse from spreading. To that end, Singapore had adopted a zero-tolerance policy towards drug abuse, and a comprehensive strategy encompassing preventive education, enforcement, treatment and rehabilitation and aftercare to reintegrate reformed addicts back into society. This approach, which had worked for Singapore, had helped keep the drug abuse situation under control with no black areas where drugs could be sold or bought.

Right of Reply

HYE RAN CHUN (Republic of Korea), speaking in a right of reply, said with regards to the allegation raised during the dialogue with the Special Rapporteur on adequate housing, demolition had only been carried out of empty buildings with the full compensation of the tenants. With regards to this allegation, protestors had broken into an empty building belonging to a third party with the aim of holding illegal protests. The incident had nothing to do with the right to housing. The Government had paid due regard to the relevant domestic laws and international human rights instruments and had taken legitimate and necessary measures to ensure domestic order - the illegal demonstrations had still caused considerable damage. The regrettable deaths of five protestors and one policeman were caused by the fires set by the protestors. The Government remained committed to taking all necessary measures, both legal and administrative, to protect tenants' right to housing.

JOSE CAPON (Angola), speaking in a right of reply, said that they were reacting to the allegations made by Amnesty international regarding the Government’s alleged failure to provide adequate housing to its people. By making this accusation, Amnesty International had either shown a deep ignorance of the history of Angola or was acting in bad faith by distorting the facts. Amnesty International seemed not to know that Angola had been at peace only seven years now and that the war had affected its social programmes as well as badly damaged most of its infrastructures. The Government of Angola was committed to resolving the issue of adequate housing, as was illustrated with the recent initiative of construction of one million social houses in the next four years as a part of a multi-billion project using its own resources. Amnesty International’s sole objective was to discredit the Angolan Government.

LAZHAR SOUALEM (Algeria), speaking in a right of reply, thanked the NGO Interfaith International for mentioning the situation of the Saharian refugees. They lived in the most arid region of the planet and fully depended on international aid. This continued to be insufficient. Interfaith International should take the opportunity of its stay in Geneva to ask the UNHCR office to step up its support of this group.
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