INFORMAL NOTE OF THE PRESS CONFERENCE BY BACRE WALY N'DIAYE, SPECIAL RAPPORTEUR ON EXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS

Geneva, 16 April 1998



Mr. Ndiaye introduced his report by stating that his mandate concerned all aspects of the protection of the right to life, including the use of the death penalty, civilian victims of armed conflicts, the execution of refugees, deaths resulting from the excessive use of force by security forces and genocide. He also dealt with the right of victims to compensation and impunity. Over the past six years he had visited numerous countries, including the former Yugoslavia, Rwanda, Peru, Colombia, Indonesia, Papoua New Guinea Burundi, the Congo, Sri Lanka and the United States. Unfortunately there was no good news to report on improved protection of the right to life; on the contrary, there were increasing difficulties in getting Governments to accept respect for that right, although the Commission's recently adopted resolution on the death penalty was a source of some hope.

Asked for a response to the criticism made by the United States representative to the Commission on 15 April that the Special Rapporteur's report was "severely flawed", he said the charges were not substantiated at all. He had referred to flaws within the judicial system, which had been identified prior to his assuming his mandate. It was the American Bar Association which had requested a moratorium on executions because of such flaws. Nothing during his visit to the United States had led him to think that anything serious was being done to ensure that international standards concerning the violation of the right to life were being fully implemented, respected or promoted there.

A correspondent recalled that the United States representative had disputed the Special Rapporteur's contention that the use of the death penalty was a violation of international law. Was it, or was it not? Mr. N'Diaye said the international community had not yet prohibited the death penalty as such, but there were a number of restrictions that had been placed on its use: Governments should not expand the scope of the death penalty in law, which had happened in the United States; they should not execute juveniles, which had also happened in the United States. In addition, the moratorium on the execution of women was at the very least a de facto moratorium, if not yet an international standard; while in that regard the United States had not violated international law, everywhere people believed that the execution of women was particularly outrageous, and it had already been violated twice since the beginning of 1998.

The current session of the Commission was perhaps not the best time for the United States to discuss respect for international law, The Special Rapporteur continued. The national of Paraguay who had been claiming violation by that country of the Vienna Convention, which clearly obliged States to allow foreigners to consult with their consular offices, had been hoping the violation would have enough substance at least to influence the death sentence against him. Unfortunately, however, despite the calls from the International Court of Justice of the Hague as well as the United States Secretary of State, the individual had been executed.

What argument had been given for the denial of his request to visit women on death row in United States prisons? a correspondent asked. In the case of Huntsville, Texas, Mr. N?Diaye said he had indeed been given full access to the prison and the detainees. In the case of the Broward Correctional Institute in Florida, where there were six women were on death row, the State Department had at first contended that it had no jurisdiction to insist on his being granted permission to visit, and had subsequently decided to help him by requesting such permission, but at the last moment he had been told, without explanation, that it would not be granted. He had made requests to visit specific prisoners, but the decision had been taken to show him other prisoners with whom he had not asked to meet. He did not know the grounds on which they had been selected, which was why he had declined the proposal.

A correspondent asked whether the claim made by the Governor of Virginia that he had had to execute the Paraguayan prisoner in order to protect his citizens from crime was not a valid argument. Did inmates who put other people to death not deserve to die? Mr. N?Diaye replied that the problem was not whether they deserved to die, but whether the process leading to execution was in conformity with the highest standards of a fair trial, one of which was the exhaustion of all possible judicial remedies.

He did not see how that execution was protecting the people of Virginia against crime, because the inmate had already been in detention for six years. The question was whether it was meaningful to claim the existence of a good and trustworthy judicial system and whether there was any harm in accepting the decision of the International Court of Justice to request time to determine whether the petitioner's request was well-founded. After all, if it was later found that the petitioner had been right to claim that his execution would be a violation of international law, there would be no remedy. What kind of emergency would have justified execution when all possible legal remedies had not been exhausted? The legalities surrounding the use of the death penalty were not fully respected.

Which countries carried out the most executions, and where did the United States fit in to that ranking? a correspondent asked. While there were no records of all executions, the Special Rapporteur said he had been told that this year, there were more than 4,000 executions in China. In terms of prisoners on death row, the United States ranked very, very high, with more than 3,000 such people, and had one of the highest records of the number of executions. Last year more than 30 people had been executed in Texas alone.

Mr. Mills, media officer for the Office of the High Comissioner for Human Rights, added that the report of the Secretary-General on the use of the death penalty around the world, which listed the countries still using executions, was available in the press room.

To another question, Mr. N'diaye said the last time he had spoken with the Algerian authorities about a possible visit in Algeria was in November 1997, in Geneva. Asked about the status of the situation there, and his feelings about it, he said his concern about Algeria was unfortunately growing, as the massacres had not stopped and did not seem to be prevented in an effective manner.

In addition, since 1997 more and more militias were being created because the law allowed the creation of self-defence groups, which would in his view only aggravate the situation. His interest lay in clarifying allegations as to the perpetrators of the massacres; the official Government position was that the invitation for him to visit was still open but that the timing of the visit was subject to discussion. The parliamentary elections of 1997 had led the Government to suggest a delay in the visit, and in anticipation of the municipal elections of November 1997, it had been decided that consultations on possible dates would next be held during the present session of the Commission. So far, however, he had not been contacted.

Asked if he felt there was any urgency for his visit in Algeria, the Special Rapporteur replied that he had even asked the Government to be in a position to report to the Commission on the situation.

What was the basis for his investigations; was his mandate limited to extrajudicial executions committed by Government or security forces, whereas the Government was claiming that most of the killings were being carried out by Islamic terrorists and fundamentalist groups? Could he produce a balanced report? a correspondent asked. First of all, he said, the Government had the obligation to protect the lives of its citizens. Wherever such massacres occurred, an investigation had to be started to determine who did what, and how; to identify the perpetrators and bring them to justice; to take preventive measures to avoid a repetition of those violations of the right to life; and also to compensate the victims. It would also be important to report back on the findings of his investigations, which were that most of the massacres were alleged to have been perpetrated by armed Islamic groups who had been identified in accordance with international standards, and to clarify allegations that those groups were not responsible for all the killings in Algeria. The Government should also state how it had arrived at its own conclusions and comment publicly on what had been done to protect Algerians against the slaughters.

Was it reasonable, a correspondent asked, to believe that the Islamists were responsible for all the killings, as the Government claimed; had he received much information about the killings and demands for urgent appeals coming from Algeria? He had received such information, but only an on-site visit would allow him to verify it; for the time being, all he had was allegations from one side or another, most of which accused the armed Islamic groups. It was therefore urgent that he shold be able to talk to victims, their families and human rights activists and to determine the variety of groups which were threatening the protection of the civilian population.

A correspondent asked him to comment on the report by Mr. Garreton, Special Rapporteur on the human rights in the Democratic Republic of the Congo, which had presented a "fairly stringent" view of the record to date of President Kabila, noting in paragraph 126 that the President had reinstated the death penalty and commenting that a number of summary executions had taken place. What was his assessment of the "consistently evasive and obstructionist" attitude adopted by Mr. Kabila towards the United Nations missions to that country, including the one in which the Special Rapporteur had taken part? Mr. N'Diaye said he did not believe the death penalty had ever been abolished in the Congo or former Zaire; there had been a de facto moratorium on executions, but there were allegations of severely flawed trials leading to executions and of civilians being tried by military courts without access to defence lawyers or to appeal procedures.

He himself had appealed on behalf of a thirteen year-old boy who had been sentenced to death, in complete violation of international law, as the argument put forth by the Government to justify such executions was not acceptable. During his mission with Mr. Garreton, they had been given any reasonable explanations for the refusal to allow them to go to Kivu to investigate the extremely grave allegations of massacres or even genocide. The Government had consistently prevented any international scrutiny, and their investigations had had no substantial results.

Asked again for his view on Mr. Kabila's record to date, he said the logical conclusion was that it was not acceptable; the Government claimed it was not responsible for anything, and that it was open to investigations, but the investigations had been obstructed, there were many allegations of attempts to do away with the evidence and of threatening witnesses or making them disappear; that had increased the risk of genocide, and that should not be accepted by anyone.

According to a report by Reuters, the Secretary-General might be passing the mandate for an investigation back to Mr. Garreton; would Mr. Ndiaye be willing to participate in another attempt, at the level of Special Rapporteur, and if so, what demands would he place on such participation? a correspondent asked. That depended on the Commission, he replied; a number of proposals had been made to the General Assembly in June 1997, suggesting cooperation with a team of professional investigators. It was also not impossible to investigate from abroad, as some non-governmental organizations (NGOs) had already tried to do, in order to come up with evidence. The Government's refusal was not an impossible obstacle to investigation.

Asked whether he expected to see any investigation before the end of May 1998, he replied that he was not very optimistic.

Asked which countries he would like to visit in the coming year, Mr.N?Diaye said he had a number of requests pending; the most recent concerned Kosovo, but he had not yet been granted access. He had been asking to visit China since 1992, for the same reasons as his visit to the United States, namely, concerning the use of the death penalty under conditions not in conformity with international standards. In addition, he had been trying to visit Turkey, also since 1992, but so far without success, and India since 1993. The problem was not only one of access, but of follow-up to his recommendations, because many Governments, after inviting the Special Rapporteurs, almost always tried to reject their recommendations or were simply silent about them. Another problem was not only to start investigations, but also to continue a dialogue on how better to protect human rights. Unfortunately, the reaction given by the United States on 15 April was exactly the same reaction he had had from such Governments as Indonesia; and in both Rwanda and Burundi, he had been completely ignored. The challenge lay also in doing something concrete on the basis of his reports.