SUB-COMMISSION ADOPTS MEASURES ON ARMED INTERVENTION, ANTI-TERRORISM EFFORTS, REPARATIONS FOR PAST VIOLATIONS

Sub-Commission on the Promotion
and Protection of Human Rights
54th session
12 August 2002
Afternoon


Former Expert Introduces Working Paper on
Human Rights and Weapons of Mass Destruction



The Sub-Commission on the Promotion and Protection of Human Rights approved five resolutions and two measures this afternoon under its agenda items on the administration of justice and the question of the violation of human rights anywhere in the world.
Without votes, it passed resolutions opposing all acts of foreign military intervention contrary to the principles and other provisions of the Charter of the United Nations, as well as all threats to overthrow by means of armed force duly constituted Governments; calling for steps taken against terrorism to be strictly in keeping with international law and international human rights standards; and urging recognition of responsibility and reparation for massive and flagrant violations of human rights during the period of slavery, colonialism and wars of conquest.
The resolution opposing foreign military intervention said such interventions or threats of them were blatant violations of the principles of self-determination, sovereign equality and non-intervention in affairs that were essentially within the domestic jurisdiction of any State, as well as an inadmissible danger to or violation of the basic human rights of the populations living in the territories concerned; and called upon those States engaged in such military actions or threats of armed intervention to put an end immediately to such illegal international conduct.
The resolution on anti-terrorism measures, titled "the present situation and future of human rights", drew attention to the incompatibility of certain laws, regulations and practices recently introduced by a number of countries, in particular those which called into question the judicial guarantees which were intrinsic to the rule of law, notably in relation to police custody, arbitrary detention, incommunicado detention, the rights of the defense and the right to an effective remedy. It asked the High Commissioner for Human Rights to take up as a matter of top priority the consideration of measures adopted or applied in the struggle against terrorism, including their compatibility with States's obligations under international human rights law; and requested the Commission on Human Rights to draw the attention of the Committee against Terrorism of the Security Council to the need to include the question of respect for human rights in the study of measures taken by States in the fight against terrorism.
The resolution on slavery, colonialism and wars of conquest recommended that the public recognition of the slave trade and slavery as crimes against humanity should include the establishment of a common date to commemorate every year the abolition of the slave trade and slavery; considered that crimes against humanity and other massive violations of human rights, which were inherent rights, should be prosecuted by the competent courts, as they were not subject to any statute of limitations; and requested the High Commissioner for Human Rights to initiate a process of reflection, in a concerted fashion, for implementation of the resolution, in particular regarding recognition and reparations.
The Sub-Commission also deeply deplored the immunity automatically allowed to nationals of States parties or not parties to the Rome Statute who participated in operations decided or authorized by the Security Council for the maintenance or restoration of international peace and security. Referring to the International Criminal Court established under the Rome Statute, the Sub-Commission further said the transparency and impartiality shown in the selection of judges would to a large extent determine the legitimacy, credibility and effectiveness of the Court.
In addition, the Sub-Commission decided to request Expert Francoise Jane Hampson to prepare, without financial implications, a working paper on the accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations; decided to appoint Expert Leila Zerrougui as Special Rapporteur to conduct a detailed study of discrimination in the criminal justice system; and decided to request Expert Emmanual Decaux to supplement the most recent version of the Sub-Commission's report on the issue of the administration of justice through military tribunals.
Towards the end of the afternoon meeting, the Sub-Commission heard the introduction by former Expert Y.K.Sik Yuen of a working paper on human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering. Mr. Sik Yuen said among other things that he had been forced to conclude that there was a tendency to ignore the "dirtiness" of such weapons, since they were used in enemy territory; that there was the possibility of the use of illegal weapons in anti-terrorism campaigns; and that new "space weapons" were a concern that had to be looked into.
Experts participating in the subsequent discussion were Emmanuel Decaux, Asbjorn Eide, Soo Gil Park, El Hadji Guisse, Soli Jehangir Sorabjee, and Yozo Yokota.
And the Sub-Commission briefly continued the debate under its agenda item on the prevention of discrimination. A representative of the non-governmental organization Afro-Asian Peoples Solidarity Organization spoke.
The Sub-Commission will reconvene at 10 a.m. on Tuesday, 13 August, to conclude its debate on its agenda item on prevention of discrimination and to begin discussion of "specific human rights issues", including women and human rights and contemporary forms of slavery.

Action on Measures and Resolutions
In a resolution (E/CN.4/Sub.2/2002/L.3/Rev.1) on armed intervention and the right of peoples to self-determination, adopted without a vote, the Sub-Commission declared its firm opposition to all acts of foreign military intervention contrary to the principles and other provisions of the Charter of the United Nations, as well as all threats to overthrow by means of armed force duly constituted Governments, as blatant violations of the principles of self-determination, sovereign equality and non-intervention in affairs that were essentially within the domestic jurisdiction of any State, as well as an inadmissible danger to or violation of the basic human rights of the populations living in the territories concerned; and called upon those States engaged in such military actions or threats of armed intervention to put an end immediately to such illegal international conduct.
In a resolution (E/CN.4/Sub.2/2002/L.5) on the present situation and future of human rights, adopted without a vote, the Sub-Commission emphasized that all measures adopted against terrorism should be strictly in keeping with international law, and particularly with international norms and obligations in the sphere of human rights; drew attention to the incompatibility of certain laws, regulations and practices recently introduced by a number of countries, in particular those which called into question the judicial guarantees which were intrinsic to the rule of law, notably in relation to police custody, arbitrary detention, incommunicado detention, the rights of the defense and the right to an effective remedy; denounced measures which constituted acts of torture and cruel, inhuman or degrading punishment or treatment, and thus violated norms which might not be derogated from in any circumstances; deplored the serious violations of other fundamental freedoms, in particular freedom of expression and respect for privacy, freedom of movement, as well as the restrictions placed on immigration and on the right to asylum; observed that those violations often went hand in hand with flagrant discrimination based on nationality, ethnic origin or religion; condemned violations of the principles of international humanitarian law, which must be respected everywhere and in all circumstances; expressed its full support for the efforts of the International Committee of the Red Cross to monitor effective observance of the norms and principles of international humanitarian law; urged all States to respect such international norms and principles, if they had not already done so, to ratify the relevant instruments; urged all States not to obstruct the work of the International Criminal Court and to consider ratifying the Rome Statute as soon as possible; asked the High Commissioner for Human Rights to take up as a matter of top priority the consideration of measures adopted or applied in the struggle against terrorism, including their compatibility with States' obligations under international human rights law; and requested the Commission on Human Rights to draw the attention of the Committee against Terrorism of the Security Council to the need to include the question of respect for human rights in the study of measures taken by States in the fight against terrorism to pay particular attention to the compatibility of national and international measures adopted or applied to combat terrorism.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, said he had not objected to the adoption of L.5 without a vote. However, he assumed that the new operative paragraph 11 called for the consistency of both international human rights law and international humanitarian law.
In a resolution (E/CN.4/Sub.2/2002/L.12) on discrimination in the criminal justice system, adopted without a vote, the Sub-Commission decided to appoint Leila Zerrougui as Special Rapporteur to conduct a detailed study of the issue with a view to determining the most effective means of ensuring equal treatment in the criminal justice system; requested her to submit a preliminary report at the Sub-Commission's fifty-fifth session, a progress report at its fifty-sixth session, and a final report at its fifty-seventh session; and recommended a draft decision to this effect to the Commission on Human Rights for approval.
In a measure (E/CN.4/Sub.2/2002/L.13) on the issue of the administration of justice through military tribunals, adopted without a vote, the Sub-Commission decided to request Emmanual Decaux to supplement the most recent version of the report on the subject, taking into account comments made by participants at the fifty-fourth session of the Sub-Commission, and to submit an updated report to the Sub-Commission at its fifty-fifth session.
In a resolution (E/CN.4/Sub.2/2002/L.14) on establishment of the International Criminal Court, adopted without a vote, the Sub-Commission deeply deplored the immunity automatically allowed to nationals of States parties or not parties to the Rome Statute who participated in operations decided or authorized by the Security Council for the maintenance or restoration of international peace and security, under the terms of resolution 1422 (2002) of the Security Council of 12 July 2002; noted that the transparency and impartiality shown in the selection of judges would to a large extent determine the legitimacy, credibility and effectiveness of the Court; invited States parties to opt for a transparent procedure for nominating the Court's judges, after consultation with the highest national judicial and academic authorities, so as to guarantee their full competence, their independence, and equitable geographic and gender representation, and an accurate reflection of the principal legal systems; urged all States to ratify the Rome Statute as soon as possible and to ensure its full implementation; and emphasized that States must not hinder the implementation of the Statute of the International Criminal Court.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said that he was not a co-sponsor but would not go against the consensus. Would there had been a vote, he would have abstained.
ABDEL SATTAR, Sub-Commission Expert, said he had reservations on paragraph 6 of the draft resolution, but did not wish to vote against its adoption.
GODFREY BAYOUR PREWARE, Sub-Commission Expert, said he shared the concern that it was a document that required States that had not ratified relevant instruments to be bound by the resolution.
In a resolution (E/CN.4/Sub.2/2002/L.6) on recognition of responsibility and reparation for massive and flagrant violations of human rights which constitute crimes against humanity and which took place during the period of slavery, colonialism and wars of conquest, adopted without a vote, the Sub-Commission requested all countries concerned to recognize their historic responsibility and the consequences which must derive from that historic responsibility, and take initiatives which would assist, notably through debate on the basis of accurate information, in the raising of public awareness of the disastrous consequences of slavery, colonialism and wars of conquest, and the need for just reparations; recommended that the public recognition of the slave trade and slavery as crimes against humanity should include the establishment of a common date to commemorate every year the abolition of the slave trade and slavery; emphasized the importance for school curricula, university training and research, and the media to place adequate emphasis on the recognition of the flagrant and massive human rights violations which occurred during slavery, colonialism, and the wars of conquest, and to develop human rights training programmes; recommended that initiatives, particularly in the field of history and culture, should help to contribute to the raising of collective awareness; considered that crimes against humanity and other massive violations of human rights, which were inherent rights, should be prosecuted by the competent courts, and were subject to no statute of limitations; and requested the High Commissioner for Human Rights to initiate a process of reflection which should be initiated on appropriate procedures for guaranteeing the implementation of the present resolution and its implementation, particularly regarding recognition and reparations.
In a measure (E/CN.4/Sub.2/2002/L.9) on the accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations, adopted without a vote, the Sub-Commission decided to request Expert Francoise Jane Hampson to submit, without financial implications, a working paper on the subject to the Sub-Commission at its fifty-fifth session.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, said the adoption of the resolution did not change his view that the terms peace-keeping operations and peace-supporting operations could be interpreted in many ways.

Other Human Rights Issues
Under this agenda item, the Sub-Commission has before it a working paper by Y.K. Sik Yuen on human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering (E/CN.4/Sub.2/2002/38). In the executive summary it is explained that part one of the working paper deals with human rights and humanitarian law at issue whilst part two addresses the weapons themselves. In analysing the human rights likely to be infringed by the use of the listed weapons and categories of weapons, emphasis is placed on the right to life, the right to freedom from torture, the right to health and well-being, the prohibition against genocide and related rights contained in the primary human rights instruments. Emphasis is also placed on article 2 of the Charter of the United Nations owing to the obvious "threat power" of States in possession of these weapons. In the light of humanitarian law from all sources, the author concludes that weapons are to be considered banned if their use: has indiscriminate effects (no distinction between civilians and belligerents); is out of proportion with the pursuit of legitimate military objectives; adversely affects the environment in a widespread, long-term and severe manner; and causes superfluous injury and unnecessary suffering.

Statements on Other Human Rights Issues
Y.K.J. SIK YUEN, former Sub-Commission Expert, presenting his working paper (E/CN.4/Sub.2/2002/38) on human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering, said one part of the study had been "plain sailing" -- the identification of the human rights likely to be affected by such weapons, the identification of the weapons, and the relevant applicable humanitarian law. Another part of the assignment was more problematic: the non-observance of human rights when States produced, sold and used such illegal weapons. Live situations had to be considered; the study was not carried out in a vacuum.
Five militarily significant countries were not party to the Anti-Personnel Mines Convention, Mr. Sik Yuen said. Associated with this was the problem of unexploded sub-munitions when cluster bombs were used; these became potential landmines. The development of "mini-nukes" and bunker busters -- bombs that were heavier for deeper penetration -- could infringe the non-proliferation treaty of 1968, signed by 187 States. A nuclear posture review leaked in March of this year had shown that one country was drawing war plans for the first use of nuclear weapons against seven States, five of which were non-nuclear States. And the existence of conventions banning completely biological and chemical weapons were a cause for celebration, but there was no corresponding convention for the complete ban of nuclear weapons as yet. There also were "daisy cutters" or hypobarmetric bombs, the third generation of which used uranium powder; and depleted uranium weapons.
He had been forced to conclude, Mr. Sik Yuen said, that there was a tendency to ignore the "dirtiness" of such weapons, since they were used in enemy territory; that there was the possibility of the use of illegal weapons in anti-terrorism campaigns; and that new "space weapons" were a concern that had to be looked into.
EMMANUEL DECAUX, Sub-Commission Expert, said that the scope of the study was much too broad, bringing in complex legal and technical issues that were perhaps too much for the Sub-Commission. The Comprehensive Test-Ban Treaty was an already existing instrument regarding nuclear power, and it was important not to ignore already agreed upon international conventions and instruments. It was important to respect existing instruments to avoid duplication and overlapping.
ASBJORN EIDE, Sub-Commission Expert, said this was more than a question of armaments or humanitarian law. For example, one could wonder what arbitrary deprivation of life amounted to. If weapons had indiscriminate effects, one might argue that their use was such an arbitrary deprivation of life. Which human rights might be effected by use of such weapons also should be explored, perhaps, to see if the rights were of the sort which could not be derogated from under any circumstances.
SOO GIL PARK, Sub-Commission Expert, said the report provided an excellent legal analysis of weapons under investigation. How was the longest peace possible during the Cold War period, was it the concept of deterrence or legal regulations? The geo-political implications of nuclear weapons must also be addressed.
EL HADJI GUISSE, Sub-Commission Expert, said these were thorny, difficult issues; he wondered if Mr. Sik Yuen, if he was to continue this research, could bear in mind the consequences these weapons had had on the public health, in both use and production. It included damage to lakes and flora. He hoped more information also would be discovered on risks associated with them such as cancer.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said the topic of the report was both illuminating and frightening. In paragraph 168, Mr. Sik Yuen had referred to a moratorium. What reasons had been given by NATO for the decision taken in this regard?
YOZO YOKOTA, Sub-Commission Expert, said the working paper was very comprehensive and did a good job of explaining the inhumane nature of these weapons. He wondered if he could look in future into the responsibility of those countries who used, developed, or stockpiled such weapons. He had the impression that persons in charge in such countries had no idea of the weapons' extensive and indiscriminate effects against civilians.

Statement on the Prevention of Discrimination
U.S SHARMA, of the Afro-Asian Peoples Solidarity Organization, said all religions taught that human beings were born in the image of the Creator. Yet, despite this reality it was a matter of concern that it was those who claimed to be well versed in their religions who fed fires of hatred and bigotry. In many countries the places of worship had become the pulpit for a kind of demagoguery that sought to perpetuate the power of religion's self-appointed brokers by encouraging the destruction and death of so-called non-believers. Nation States had the primary responsibility to create the necessary environment where ideal human behaviour could be achieved. The authorities of nation States had the ability to influence society for its good or its detriment. Unfortunately, there continued to be nations that almost wilfully fostered the notion of superiority of one segment of their community over another, with discriminating laws on the basis of religion.
The ideology of oppression and discrimination also lay at the heart of contemporary terrorism. Groups based in Pakistan had taken it upon themselves to kill Christians and foreigners. If discrimination was to be eradicated, one needed to start the process of enlightenment at a young age. Nations needed to create an education structure that lay emphasis on modernity, on science and on the potential for human advancement.



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