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SUB-COMMISSION BEGINS DEBATE ON SPECIFIC HUMAN RIGHTS ISSUES
05 August 2004
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5 August 2004
MORNING
Hears Presentation of Reports on Terrorism and Human Rights;
Human Rights and International Solidarity
The Sub-Commission on the Promotion and Protection of Human Rights this morning began consideration of its agenda item on specific human rights issues including women and human rights; contemporary forms of slavery; and new priorities, in particular terrorism. In this context, it discussed two reports on terrorism and human rights and on human rights and international solidarity.
Sub-Commission Expert Kalliopi Koufa presented her final report on terrorism and human rights, saying the report was written with a view to completing the study of the topic, and dealt, in the first place, with certain core human rights and humanitarian law issues engaged by terrorism. It also addressed the crucial issue of the legal accountability of the actors involved in the criminal practice of terrorism, whether they were State or non-State entities, an issue which had not been covered to date. Despite intense work over the long course of the mandate, the issue of terrorism and human rights had had to be addressed on an issue by issue basis, and in this sense the whole report had been cumulative, and even the final report had less the character of a habitual final report, and more that of a progress report.
Various questions and issues were then raised by Experts, including the difficulty of differentiating freedom fighters from terrorists, the need for due diligence on the part of the rest of the world when a country claimed terrorist acts were perpetrated in order to ensure that the term was being used appropriately and not just in order to justify national claims, the increase in terrorism after the events of 11 September 2001 and the impact of those events on the international community, and the issue of the death penalty for terrorist acts.
Cristiano Dos Santos, Sub-Commission Alternate Expert, presented a working paper on human rights and international solidarity which was prepared by Sub-Commission Expert Rui Baltazar Dos Santos Alves, saying it was paradoxical that international solidarity, as a tool for a more effective realization of human rights, raised controversy at a time when the changes one witnessed in an increasingly globalized world pointed precisely to the need to impose an increased international solidarity. But the reality was that international solidarity was always being manifested, and the dialogue amongst different actors in the different domains was intensifying. A universal acute awareness of the importance of international solidarity in the realization of human rights was developing, not only at the global level but also at national, sub-regional and regional levels.
Experts made comments and asked questions on varied subjects, including the responsibility of States to cooperate as international solidarity should be displayed in the implementation of all human rights, and the practical meaning of the report.
The issue of the right to development was raised by Expert Francoise Jane Hampson, who said the request received last year from the Commission for the Sub-Commission to address the issue of the right to development should be examined further, as what the Commission was requesting was topical and extremely challenging, whether talking conceptually or in terms of the conceptualization of the right. Responding to this, other Experts said the right to development was a right of peoples and nations, not just of States. The issue needed to be opened up generally, but the debate also needed to remain focused. The right to development meant different things to different people at different times, and this needed to be taken into account. A gradual approach that was open to others would convince countries of the potential of this field.
At the beginning of the meeting, the Sub-Commission concluded its discussion on its agenda item on economic, social and cultural rights.
Among the Experts speaking this morning were Yozo Yokota, Christy Ezim Mbonu, El-Hadji Guisse, Florizelle O’Connor, Antoanella-Iulia Motoc, Gudmundur Alfredsson, Ibrahim Salama, Mohamed Habib Cherif, Chen Sung Chung, Vladimir Kartashkin, Gaspar Biro, Marc Bossuyt, Abdul Sattar and Emmanuel Decaux.
Speaking in a right of reply was Nigeria. The non-governmental organization Minnesota Advocates for Human Rights also delivered a statement.
The Sub-Commission will reconvene this afternoon at 3 p.m. to continue its discussion on specific human rights issues.
Statements Related to Economic, Social and Cultural Rights
YOZO YOKOTA (Sub-Commission Expert) said many Experts had spoken on the issue of the relationship between poverty and human rights, and there was no denying that there were close inter-linked relations between the two rights. This complex relationship could be divided into three categories: poverty itself was a violation of human rights; poverty induced other serious human rights abuses; and lack of human rights protection was a cause of poverty. The analysis of this relationship in accordance with theses categories revealed that the relationship between poverty and human rights fell into a vicious circle. The question was how to turn this negative circle into a positive one, where more protection of human rights induced development and further development induced better protection of human rights.
In order to tackle this vicious circle and lack of protection of human rights, there were no priorities. The issue of serious human rights violations and poverty had to be addressed at the same time. Unfortunately, the international entities involved in the promotion and protection of human rights and the international entities involved in development aid were separate, and no effective coordination was taking place. The so-called trickle down theory, which claimed that developing countries should address economic development as a priority, and thus people would later have the opportunity to enjoy human rights, was not correct.
The preliminary report on corruption and its impact on the full enjoyment of human rights was the first attempt by a United Nations human rights body on this subject, and had shown that such practices destroyed democracy, free competition and personal integrity. The report on housing and property restitution was equally interesting and valuable, and the papers on drinking water, the effects of debt on human rights and on the activities of transnational corporations were also very interesting. The working paper on non-discrimination had also raised many interesting and useful questions, and should be continued.
CHRISTY EZIM MBONU (Alternate Sub-Commission Expert, concluding the discussion on her preliminary report on corruption and its impact on the full enjoyment of human rights, thanked all the Experts, representatives of States and non-governmental organizations (NGOs) who had reacted to her report. During the discussion, it was remarked that corruption was at the centre of human rights violations, stressing its universal spread. She agreed that daily corruption affected all human rights; for example when a policeman or a teacher had to be tipped to do their work. An Expert had said that the Sub-Commission should be proud of its achievements in taking that bold step to fight corruption. She agreed with that and she had reflected it in her report that the eradication of corruption required international cooperation, which should be strengthened, not only in words but also in action. Another Expert had agreed that corruption seriously violated the enjoyment of human rights as mentioned in her report. It was said that it was not corruption that had increased but rather the monitoring role of the NGOs that had become more effective.
Corruption could be found in both democratic and dictatorial regimes; however, it was prevalent in dictatorial regimes. During the discussion, the situation of corrupt State leaders who enjoyed immunity had been highlighted and what to do with such corrupt leaders had also been indicated. It was also stressed that corruption affected all human rights, economic, social, political, civil and cultural, affecting both the developed and the developing countries. She also agreed that corruption was a great danger to the rule of law. Corruption should be seen as “economic terrorism”, a notion that she put in her paper.
EL- HADJI GUISSE (Sub-Commission Expert) said he had presented three reports, and the comments of colleagues on these three had been received gratefully. Some of the changes that they had suggested had already been implemented, for example one Expert had requested increasing focus on development. Clarifications given by some Experts would be helpful in formulating future reports and documents. Violent conflicts were seen over petrol already, and drinking water was clearly going to be a source for discord for some peoples, as indeed it already was in some parts of the world, and it was probable that water would be source of major conflicts before the end of the century.
The responsibility of States towards providing water for their citizens needed to be further examined, as did the issue of growing needs of water among populations and the right of the individual to water. Indigenous peoples suffered from the way in which water resources were managed, one Expert had pointed out, and this was very interesting and would be examined further. The possibility of formulating a Draft Declaration on Drinking Water would not be overlooked in future work. Drinking water was essential, and was a human right, and the right to drinking water could perhaps be better formalized. Access to such biological rights should become a legal necessity, with access to compensation to correct situations where access was not possible or had been withdrawn. Water was so important that there was a need to ensure that in the future, when it would be a source of conflict, that issues could be promptly and easily resolved. Privatization of this resource could be a source of violation of human rights.
Right of Reply
MIKE OMOTOSHO (Nigeria), speaking in a right of reply, said that with regard to the statement made by the International Indian Treaty Council yesterday, it had been wantonly alleged that there had been mass killings and destruction in Nigeria, where two communities were alleged to have had their homes, way of life, families, and education destroyed. This was unsubstantiated and mischievous, and did not deserve a response, however, there was no choice but to respond and provide the correct picture of the situation. The information provided had come from old and discredited files, and it was wondered in what capacity an indigenous American non-governmental organization (NGO) was getting involved in such a situation. Since the President came to power in 1999, the area under discussion had been quiet and tranquil due to the policies adopted with regard to the area. Communities had been empowered and were able to make decisions upon their own well being. This was a propaganda exercise, and where the allegations true then the international community would have responded. NGOs should bear in mind the weighty matters under discussion, and their statements should respect the dignity of the Sub-Commission and the Experts and not transgress upon their valuable time, as the Sub-Commission worked on the basis of facts and verifiable information.
Statements on the Right to Development
FRANCOISE JANE HAMPSON (Sub-Commission Expert) said the request received last year from the Commission on Human Rights that the Sub-Commission should address the issue of the right to development should be examined further, as what the Commission was requesting was topical and extremely challenging, whether talking conceptually or in terms of the conceptualization of the right. There was a need to discuss how this work could be undertaken. Under this agenda item, there were reports that directly related to this right, and these had been very enlightening and helpful. In two of the three, surprisingly, there was no reference to sustainability, and none referred to corruption. There was a need for a discussion on how to handle the right to development, as much of the other work carried out under this agenda item was related to it.
FLORIZELLE O’CONNOR (Sub-Commission Expert) said she had indicated to the Secretariat the reasons that had hindered the presentation of her report on the right to development. The reasons were beyond her control. Since she intended to present her report next year, the views expressed by Experts today would be included in the paper.
ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said with regard to what had been said on this issue, there were lots of subjects discussed under the context of economic, social and cultural rights, and the problem should be viewed from this point of view. It was important to limit it, and to determine which questions should be dealt with in the context of the right to development, and which should not be addressed in too much detail, as this would be too broad. The World Trade Organization (WTO) was an organization that Ms. O’Connor needed to examine in detail, as it was an appellate body for issues of economic law, which it had developed in a way that had not been originally envisaged. Monitoring it was therefore interesting. There was a need to analyze why the right to development had not been raised by Governments at the WTO, which illustrated how far away this issue was. Certain issues should also be clarified at the WTO, and a distinction made between applicable law and the jurisdictions of the WTO appellate body. Human rights took precedence over economic rights and the neo-liberal vision that the WTO appeared to give importance to. Often the rights of small countries were ignored and marginalized in small discussions, and there was a need for global agreement on all WTO agreements. The development of the technical assistance component was also important, and non-governmental organizations should have a right to participate.
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) said the issue of the right to development consisted of various schools of thought. The elevation of the economic, social and cultural rights to the level of civil and political rights was one of the thoughts. When governments sat in conference on behalf of a State and the people at the same time, there was always a paradox. The people concerned might not be fully represented. The right to development was linked to all other rights.
IBRAHIM SALAMA (Sub-Commission Expert) said the right to development was perceived from many perspectives, and the mandate on this topic given to the Sub-Commission was squarely within its role, and it was a big responsibility as it was a complex issue that needed to be seen in perspective. The timeframe given by the Commission needed to be examined further. What happened already at the inter-Governmental process included many transformations which the Sub-Commission should examine and keep in mind as it was a collective duty to contribute to this. The conceptual debate was being avoided, and this was a positive thing, as it was very tricky, and it was better to fill the shell of the debate with measures and not with rhetoric. The issue required to be opened up generally, but the debate needed to remain focused. The right to development meant different things to different people at different times, and this needed to be taken into account, and a gradual approach that was open to others would convince countries of the potential of this field.
MOHAMED HABIB CHERIF (Sub-Commission Expert) said that the right to development was an important issue. It was the right to have rights. The developing countries should detain that right in priority. He thought the right to development should further be developed. The right to development would be a contribution to the development of human beings.
CHEN SUNG CHUNG (Sub-Commission Expert) said the right to development was a right of peoples and nations, not just of States, and thus the concept of it should include the rights of minorities and indigenous peoples, as well as women and other vulnerable groups. It could be agreed that the right to development was not just the problem of developing countries, but of developed ones, as the gap between rich and poor was growing all over the world. The steps to achieving the right to development should not just be considered from the outside of a country, but from the inside. The introduction of the concept of sustainability was essential in the context of this right.
Reports Available on Specific Human Rights Issues, Including Women and Human Rights, Contemporary Forms of Slavery, and New Priorities, in Particular Terrorism
Under this agenda item, the Sub-Commission has before it a document (E/CN.4/Sub.2/2004/033) which is a note by the Secretary-General which reviews developments between 1 June 2003 and 1 June 2004 in fields with which the Sub-Commission has been previously concerned. This includes new signatories to International Covenants on human rights; new signatories to the International Convention on the Elimination of all Forms of Racial Discrimination; new signatories to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; progress in the Convention on the Rights of the Child; the Effective implementation of international instruments on human rights, including reporting obligations of States Parties to the United Nations instruments in the field of human rights; and progress in the International Convention on the Protection of the Rights of all Migrant workers and Members of their Families.
There is a document (E/CN.4/Sub.2/2004/034) which contains the report of the Secretary-General on the implementation of the Programme of Action for the Elimination of the Exploitation of Child Labour. The report is based on a summary of responses to a note verbale sent to Member States, United Nations specialised agencies, funds and programs as well as to international financial institutions, inviting them to provide information on their implementation of the Programme of Action. It also presents information on measures taken to implement the Programme of Action for the Elimination of the Exploitation of Child Labour adopted by the Commission on Human Rights in 1993. Many responses provide information about minimum legal ages for specific types of work or number of hours allowed for work of children under 18. Some responses also highlight the importance given to ensuring that work does not interfere with schooling and measures taken to prevent school leaving as a means of discouraging child labour. In some cases, information is provided on the legal obligation of parents to ensure the protection of their children from abuse and exploitation.
There is a report of the United Nations High Commissioner for Human Rights on systematic rape, sexual slavery and slavery-like practices during armed conflicts (E/CN.4/Sub.2/2004/35). The report refers to new developments in the activities of treaty monitoring bodies and of human rights mechanisms and in international criminal, human rights and humanitarian law on the issue of systematic rape, sexual slavery and slavery-like practice in situations of armed conflict. In its conclusions, the report says that armed conflicts exacerbate violence against women and illustrate its linkage to a system of patriarchal domination, based on gender inequality and on the subordination of women by men. In order to bring an end to the cycle of violence and prevent armed conflicts, the equal rights of women to fully participate in all aspects of social, political, economic and cultural life must be promoted and protected.
There is a report of the Working Group (E/CN.4/Sub.2/2004/36) on Contemporary Forms of Slavery. The report says that the Group co-organized, with the International Labour Organization, a special discussion on various aspects of the issue of forced labour and the challenges associated with the new manifestations of forced labour in a challenging world affected by globalization and technological change. It was highlighted that forced labour persists despite national efforts in many countries to tackle the problem. The report also says that the Working Group reviewed developments in contemporary forms of slavery and heard testimonies on sexual and economic exploitation in various countries and regions. The issue of trafficking in persons and the exploitation of the prostitution of others was discussed. Regarding the review of implementation and follow-up to the relevant conventions, the Working Group expressed concern at the lack of ratification of relevant conventions. The report contains a series of recommendations and conclusions following its twenty-ninth session.
There is a document (E/CN.4/Sub.2/2004/037) which contains the progress report of Barbara Frey, Special Rapporteur on the prevention of human rights violations committed with small arms and light weapons. This progress report addresses human rights violations committed with small arms during situations of armed conflict, including the humanitarian consequences of small arms in situations of armed conflict; international law protections regarding the availability, misuse and transfer of small arms in armed conflict; gender implications of the availability of small arms; and conclusions and recommendations. Among these, the report recommends that the international community improve the design and enforcement of small arms embargoes, and enforce criminal sanctions against persons and groups that violate embargoes. It further recommends that the international community involve women in all phases of policy regarding the availability and use of small arms.
There is a document (E/CN.4/Sub.2/2004/037/Add.1) which is an addendum to the above report. This document contains draft principles on the prevention of human rights violations committed with small arms and commentary thereto.
Before the Sub-Commission is a final report of the Kalliopi Koufa, Special Rapporteur on terrorism and human rights (E/CN.4/Sub.2/2004/40), which was submitted pursuant to resolution 2003/6 of the Sub-Commission for the purpose of completing the actual conceptual study on terrorism and human rights. The report notes at the outset that there are still issues which have either not yet been dealt with or which have not yet been fully explored for the purpose of the study mandated by the Sub-Commission. The report ends with a number of conclusions and recommendations. It emphasizes the complexity of the issue of terrorism and human rights and the need to draw on disciplines other than international law for fuller understanding of terrorism and to fashion responses to terrorism and how to reduce acts or threat of acts of terrorism.
There is a document (E/CN.4/Sub.2/2004/041), which contains the eighth report on the situation regarding the elimination of traditional practices affecting the health of women and the girl child, prepared by Halima Embarek Warzazi. The report contains a summary of national, regional and international initiatives on Female Genital Mutilation (FGM), including information supplied by Governments and international organizations, national, regional and international initiatives, and an account of the celebration of the first anniversary of the International Day of Zero Tolerance of Female Genital Mutilation. It also contains information on projects and programmes communicated to the Special Rapporteur. The report concludes that the action initiated by the Sub-Commission is leading to further progress every year, however, harmful traditional practices cannot be eliminated overnight. Great care must be taken in formulating awareness-raising messages, and where manners and customs are to be changed, it should not be done so primarily by laws; it would be better to change manners and customs by introducing others in their stead.
There is a document (E/CN.4/Sub.2/2004/042), which is a final working paper on reservations to human rights treaties. The paper details procedures and requirements for the submission of reservations to human rights treaties; the response of other high contracting parties; the reaction of the monitoring mechanisms, including their authority to reach a decision with regard to the validity of a reservation, and how a monitoring mechanism is to determine that a reservation is incompatible with the objects and purposes of a treaty; developments since the fifty-fifth session of the Sub-Commission; and finally conclusions and recommendations, which include that the Sub-Commission should suspend any further consideration of the question of reservations to human rights treaties, pending the publication of the next report of the Special Rapporteur of the International Law Commission on reservations to treaties, and in particular his examination of how to determine whether a reservation is compatible with the objects and purposes of a human rights treaty and the consequences of such a finding.
There is a document (E/CN.4/Sub.2/2004/043) which is a working paper entitled “human rights and international solidarity”. The working paper explores and identifies the expression of the principle of international solidarity - both explicit and implicit - in some of the sources and instruments of international law and examines briefly the historical evolution of the notion. It points out that though there are no disagreements as to the importance of international solidarity for the realization of human rights, there are some conceptual issues that could be clarified further. The report concludes that human rights and international solidarity constitute an extremely broad area of research; that it still arouses controversy and lacks deep analysis and study in the judicial and other fields. In contributing to a common understanding of international solidarity, the paper proposes a preliminary work plan for the consideration of the Sub-Commission.
Presentation of Report on Terrorism and Human Rights
KALLIOPI KOUFA (Sub-Commission Expert), presenting her final report on terrorism and human rights said the report was written with a view to completing the study of the topic, and dealt, in the first place, with certain core human rights and humanitarian law issues engaged by terrorism. It also addressed the crucial issue of the legal accountability of the actors involved in the criminal practice of terrorism, whether they were State or non-State entities, an issue which had not been covered to date. The report proceeded and followed up from conceptual bases contained in previous reports, and ended with a number of recommendations elaborated with an eye to the new Sub-Commission resolution 2003/15, which envisaged among other things the future elaboration of guidelines on terrorism and human rights.
In the context of the problem of so-called freedom fighters and the ever-present request of a number of States to clearly differentiate between terrorism and the struggle for self-determination, the analysis proceeded by distinguishing terrorists from lawful combatants, both in terms of combatants in legitimate struggles for self-determination and those involved in civil wars or non-international armed conflicts. There was a clear need for criteria to distinguish terrorists from freedom fighters, as this was critical to the determination of whether humanitarian law could apply, and if so, which branch. In the present development of international law, while it was generally accepted that non-State actors could be held accountable under humanitarian or international criminal law, the vital question still remaining was whether non-State actors could be held accountable as well under human rights law.
Despite intense work over the long course of the mandate, the issue of terrorism and human rights had had to be addressed on an issue by issue basis, and in this sense the whole report had been cumulative, and even the final report had less the character of a habitual final report, and more that of a progress report, owing to the need to provide further analysis of some issues and present also a major topic that had not yet been addressed. The Sub-Commission should consider requesting her to draw up a comprehensive document based on all the work done to date, and it was hoped that the Sub-Commission would consider adopting a resolution that approved a recommendation in this sense.
Discussion on the Report on Terrorism and Human Rights
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) appreciated the work of Ms. Koufa, in which she related the problems of terrorism and that of human rights. Her work had dealt with non-state actors and other actors in connection to acts of terrorism.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the report was very interesting, and on the whole the points expressed were agreed with. A great deal of attention had been paid to studying and expressing the problems linked to this issue. It was not just the report’s scientific base and depth that was important, but the practical proposals contained within it. The broad range of questions raised should be considered, namely what was and what was not terrorism, terrorism in the context of an armed conflict, the distinction between terrorists and armed conflicts, and others, without which the report would not be distinguished by its depth and excellence. It was also interesting to study the recommendations and conclusions of the Special Rapporteur, and the depth of explanation of complex questions gave a chance to recommend that Ms. Koufa draw up a comprehensive document, which should be published.
This document could define terrorism, which was a difficult issue that many United Nations bodies were attempting to do. The Sub-Commission should manage to give at least an approximate definition, and this would help many United Nations bodies. No definition could be exhaustive, but it would have a positive impact on all the work done in the field of terrorism. It could also include the root causes of terrorism, and measures for reducing the scale of terrorism, as well as preventing it. There should also be a direct link with specific measures to combat terrorism.
Paragraph 17 of the report expressed a number of ideas, which were open to dispute and perhaps not every member of the Sub-Commission would agree with them, but they remained very important ideas, both for the consideration of theoretical questions of international law and for the practical measures aimed against terrorism. The fight against terrorism was an armed conflict, and terrorists were entering into armed conflict against the State in which they acted.
CHRISTY EZIM MBONU (Sub-Commission Expert) thanked Ms. Koufa for handling the extremely difficult and controversial topic of terrorism and human rights. As long as there were freedom fighters, it would not be easy to define terrorism. A freedom fighter for one person could be a terrorist for another person. The responsibility of a State should be engaged in cases of infiltration of non-state actors committing terrorism. In any way, non-state actors should be accountable for their acts under human rights law. National liberation movements fighting for self-determination should be held responsible for their acts if they committed atrocities. She endorsed the recommendations tabled by Ms. Koufa in her paper.
FLORIZELLE O’CONNOR (Sub-Commission Expert) said the comments made so far were endorsed, and they put on record appreciation for an excellent set of papers, and the recommendations that the papers should be compiled and published more widely was supported. While discussions continued, however, particularly on counter-terrorism, it could be found that by the time the papers were published, there would be a need to redefine counter-terrorism and what the relationship between the use of the phrase and national politics was, as this often depended on national situations. There was a need for due diligence on the part of the rest of the world when the term was used in order to ensure that it was being applied appropriately and not just in order to further national claims. The work of Ms. Koufa had been most valuable.
GASPAR BIRO (Sub-Commission Expert) said the report was an excellent one; and it gave a good legal analysis of the issue. Terrorism escaped narrow definition because of its complex aspects. The issue of terrorism was amplified after 11 September and had become a concern to the international community.
MARC BOSSUYT (Sub-Commission Expert) said Ms. Koufa should be congratulated on the excellent job she had done on a particularly delicate and difficult subject that had become more and more timely and urgent during the period of her study. The definition of a terrorist act should be clearer, and it did not depend on the legitimacy or the justice of the cause behind the act. What was determinant on deciding on the terrorist nature of the act was the means used for the act, and the best reference was international humanitarian law, which distinguished between combatants and non-combatants, military objectives and non-military objectives. This was where the decisive information could be found to determine the nature of an act, whether terrorist or not. A terrorist act caused fear and was perpetrated with no distinction as to whether parties involved were included in the particular struggle. The issue of sympathy could only be inadmissible in the absence of a definition. There was a risk of being accused of a certain complicity in some acts if they were not defined as being terrorist acts.
Another issue was that of extradition, and of course there were many cases in which it would not be advisable or justified to extradite a person having committed an act, as there was no guarantee of the fair nature of the legal proceedings that they would face in the case of extradition, but there was the other side of the argument that it was up to the State on whose territory the person was found to judge that person. Regarding the death penalty in the context of terrorist acts, there was a possibility in the Optional Protocol on the Death Penalty for a State to formulate a reservation to this at the time of accession in the context of wartime after an act of severe gravity had been perpetrated. However no State had availed itself of this possibility. The work of Ms. Koufa was greatly appreciated and her recommendations supported.
EL-HADJI GUISSE (Sub-Commission Expert) said that the Sub-Commission should not dwell much longer in defining terrorism. A definition should be given relatively approaching the reality. It was difficult, wherever one was to found, to give definition to terrorism. Terrorism could be defined within national laws, which would punish acts of terrorism. Within the international context there were a series of acts that could be related to terrorism. An independent study should indicate whether equity and fair trial had been applied in the case. It should not be used as revenge. The death penalty, whatever the circumstance might be, was an unnecessary and useless practice.
ABDUL SATTAR (Sub-Commission Expert) said the in-depth scholarly study was one if the most important subject of contemporary concern, involving not just consequences for human rights but also matters of national and international security. Great pleasure was taken in joining preceding speakers in supporting the considered conclusions and recommendations reached, and a resolution would be supported to ensure that the Special Rapporteur could continue her work on outstanding aspects of this issue. Apart from commenting on the work, a brief statement would be made later on an aspect of this discussion on terrorism that was of great concern, namely that the discussion on terrorism at times stereotyped religions and reflected issues of defamation. It was hoped that members of the Sub-Commission would be able to avoid statements of that nature.
Presentation of Working Paper on Human Rights and International Solidarity
CRISTIANO DOS SANTOS (Sub-Commission Alternate Expert) said he was presenting the working paper on human rights and international solidarity on behalf of Sub-Commission Expert Rui Baltazar dos Santos Alves. It was paradoxical that international solidarity, as a tool for a more effective realization of human rights, raised controversy at a time when the changes one witnessed in an increasingly globalized world pointed out precisely to the need to impose an increased international solidarity. Also one witnessed the emergence of vibrant and intervening civil societies determined to denounce existing asymmetries that affected the present international order. But with breakthroughs or setbacks the reality was that international solidarity was always being manifested and the dialogue amongst different actors in the different domains was intensifying.
A universal acute awareness of the importance of international solidarity in the realization of human rights was developing. That was taking place not only at the global level but also at national, sub-regional and regional levels. A meaningful example of the spirit inspiring the new sense of solidarity could be illustrated by the New Economic Partnership for African Development (NEPAD), which put at the top of its agenda the concern of ensuring democracy and the policy on good governance, while putting in place cooperation and solidarity mechanisms such as the African Peer Review Mechanism.
Statements on Paper on Human Rights and International Solidarity
EMMANUEL DECAUX (Sub-Commission Expert) said the message had been effectively conveyed, and the difficulties and snares of the study had been avoided. One of the purposes of the Sub-Commission was to act as a bridge between the North and the South, and one of the approaches suggested by Mr. Dos Santos was of great objectivity and common sense. The importance of economic, social and cultural rights had been stressed, and they had a proper place in efforts. There was no need for a fourth and even fifth generation of human rights. The notion of solidarity was a powerful one, and the founders of the United Nations had invented a doctrine, that of solidarity as an extension of fraternity, but without looking towards those theoretical underpinnings, the stress of international solidarity should be on the duty of forming part of international cooperation. States were responsible for cooperation between the wealthier and poorer countries, and this was an important responsibility. International solidarity should be displayed in the implementation of all human rights.
All should stress the importance of solidarity in respect for human rights, and with development as a shared imperative. Mr. Dos Santos should continue his thinking, and the Sub-Commission support him in this testing work.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the working paper on human rights and international solidarity was written properly. However, a radical question might arise: what was the practical meaning of the paper? Each paper should be based on theories and practical aspects, and with references to other intellectual works. What would be the practical result? In the future, he would take into consideration o studies and research. He wanted to be convinced by the author of the paper about the practicality of the paper.
PENNY PARKER, of Minnesota Advocates for Human Rights, said the paper had been fascinating. However, there were a couple of practical issues to comment on. The concept of international solidarity illustrated what a non-governmental organization (NGO) was: a group of people reaching out in solidarity to people suffering human rights violations. NGOs could therefore be part of the concept as this paper evolved in the future. Perhaps in future versions of the paper, positive examples of NGOs could be dealt with. Another practical issue was that NGOs had sometimes been successful in creating international solidarity, and could therefore offer practical advice. With regard to the North-South conflict, which was behind the request of the Commission for this paper, it was the hidden conflict behind the concept of international solidarity. Many concepts should be brought to bear in this concept. The South could even help the North in cultural awareness and in traditional techniques in order to change the perception of this conflict.
MOHAMED HABIB CHERIF (Sub-Commission Expert) said that a resolution had been adopted by the United Nations in Tunisia on the establishment of an International Solidarity Fund with the aim of helping poor developing countries.
CORRIGENDUM
In press releaseHR/SC/04/10 of 3 August, the statement by Sub-Commission Expert Paulo Sergio Pinheiro on page 2 should read as follows:
PAULO SERGIO PINHEIRO (Sub-Commission Expert) said he underlined the extremely innovative character of the approach adopted by Mr. Decaux in the framework of the elaborating of his working paper on the principle of non-discrimination. Mr. Pinheiro had estimated that religious and cultural considerations should not become an obstacle to the study of the question of discrimination based on sexual orientation. In certain countries, many young people suffered from discrimination and it was up to the international community to commit itself to this issue, he added.
MORNING
Hears Presentation of Reports on Terrorism and Human Rights;
Human Rights and International Solidarity
The Sub-Commission on the Promotion and Protection of Human Rights this morning began consideration of its agenda item on specific human rights issues including women and human rights; contemporary forms of slavery; and new priorities, in particular terrorism. In this context, it discussed two reports on terrorism and human rights and on human rights and international solidarity.
Sub-Commission Expert Kalliopi Koufa presented her final report on terrorism and human rights, saying the report was written with a view to completing the study of the topic, and dealt, in the first place, with certain core human rights and humanitarian law issues engaged by terrorism. It also addressed the crucial issue of the legal accountability of the actors involved in the criminal practice of terrorism, whether they were State or non-State entities, an issue which had not been covered to date. Despite intense work over the long course of the mandate, the issue of terrorism and human rights had had to be addressed on an issue by issue basis, and in this sense the whole report had been cumulative, and even the final report had less the character of a habitual final report, and more that of a progress report.
Various questions and issues were then raised by Experts, including the difficulty of differentiating freedom fighters from terrorists, the need for due diligence on the part of the rest of the world when a country claimed terrorist acts were perpetrated in order to ensure that the term was being used appropriately and not just in order to justify national claims, the increase in terrorism after the events of 11 September 2001 and the impact of those events on the international community, and the issue of the death penalty for terrorist acts.
Cristiano Dos Santos, Sub-Commission Alternate Expert, presented a working paper on human rights and international solidarity which was prepared by Sub-Commission Expert Rui Baltazar Dos Santos Alves, saying it was paradoxical that international solidarity, as a tool for a more effective realization of human rights, raised controversy at a time when the changes one witnessed in an increasingly globalized world pointed precisely to the need to impose an increased international solidarity. But the reality was that international solidarity was always being manifested, and the dialogue amongst different actors in the different domains was intensifying. A universal acute awareness of the importance of international solidarity in the realization of human rights was developing, not only at the global level but also at national, sub-regional and regional levels.
Experts made comments and asked questions on varied subjects, including the responsibility of States to cooperate as international solidarity should be displayed in the implementation of all human rights, and the practical meaning of the report.
The issue of the right to development was raised by Expert Francoise Jane Hampson, who said the request received last year from the Commission for the Sub-Commission to address the issue of the right to development should be examined further, as what the Commission was requesting was topical and extremely challenging, whether talking conceptually or in terms of the conceptualization of the right. Responding to this, other Experts said the right to development was a right of peoples and nations, not just of States. The issue needed to be opened up generally, but the debate also needed to remain focused. The right to development meant different things to different people at different times, and this needed to be taken into account. A gradual approach that was open to others would convince countries of the potential of this field.
At the beginning of the meeting, the Sub-Commission concluded its discussion on its agenda item on economic, social and cultural rights.
Among the Experts speaking this morning were Yozo Yokota, Christy Ezim Mbonu, El-Hadji Guisse, Florizelle O’Connor, Antoanella-Iulia Motoc, Gudmundur Alfredsson, Ibrahim Salama, Mohamed Habib Cherif, Chen Sung Chung, Vladimir Kartashkin, Gaspar Biro, Marc Bossuyt, Abdul Sattar and Emmanuel Decaux.
Speaking in a right of reply was Nigeria. The non-governmental organization Minnesota Advocates for Human Rights also delivered a statement.
The Sub-Commission will reconvene this afternoon at 3 p.m. to continue its discussion on specific human rights issues.
Statements Related to Economic, Social and Cultural Rights
YOZO YOKOTA (Sub-Commission Expert) said many Experts had spoken on the issue of the relationship between poverty and human rights, and there was no denying that there were close inter-linked relations between the two rights. This complex relationship could be divided into three categories: poverty itself was a violation of human rights; poverty induced other serious human rights abuses; and lack of human rights protection was a cause of poverty. The analysis of this relationship in accordance with theses categories revealed that the relationship between poverty and human rights fell into a vicious circle. The question was how to turn this negative circle into a positive one, where more protection of human rights induced development and further development induced better protection of human rights.
In order to tackle this vicious circle and lack of protection of human rights, there were no priorities. The issue of serious human rights violations and poverty had to be addressed at the same time. Unfortunately, the international entities involved in the promotion and protection of human rights and the international entities involved in development aid were separate, and no effective coordination was taking place. The so-called trickle down theory, which claimed that developing countries should address economic development as a priority, and thus people would later have the opportunity to enjoy human rights, was not correct.
The preliminary report on corruption and its impact on the full enjoyment of human rights was the first attempt by a United Nations human rights body on this subject, and had shown that such practices destroyed democracy, free competition and personal integrity. The report on housing and property restitution was equally interesting and valuable, and the papers on drinking water, the effects of debt on human rights and on the activities of transnational corporations were also very interesting. The working paper on non-discrimination had also raised many interesting and useful questions, and should be continued.
CHRISTY EZIM MBONU (Alternate Sub-Commission Expert, concluding the discussion on her preliminary report on corruption and its impact on the full enjoyment of human rights, thanked all the Experts, representatives of States and non-governmental organizations (NGOs) who had reacted to her report. During the discussion, it was remarked that corruption was at the centre of human rights violations, stressing its universal spread. She agreed that daily corruption affected all human rights; for example when a policeman or a teacher had to be tipped to do their work. An Expert had said that the Sub-Commission should be proud of its achievements in taking that bold step to fight corruption. She agreed with that and she had reflected it in her report that the eradication of corruption required international cooperation, which should be strengthened, not only in words but also in action. Another Expert had agreed that corruption seriously violated the enjoyment of human rights as mentioned in her report. It was said that it was not corruption that had increased but rather the monitoring role of the NGOs that had become more effective.
Corruption could be found in both democratic and dictatorial regimes; however, it was prevalent in dictatorial regimes. During the discussion, the situation of corrupt State leaders who enjoyed immunity had been highlighted and what to do with such corrupt leaders had also been indicated. It was also stressed that corruption affected all human rights, economic, social, political, civil and cultural, affecting both the developed and the developing countries. She also agreed that corruption was a great danger to the rule of law. Corruption should be seen as “economic terrorism”, a notion that she put in her paper.
EL- HADJI GUISSE (Sub-Commission Expert) said he had presented three reports, and the comments of colleagues on these three had been received gratefully. Some of the changes that they had suggested had already been implemented, for example one Expert had requested increasing focus on development. Clarifications given by some Experts would be helpful in formulating future reports and documents. Violent conflicts were seen over petrol already, and drinking water was clearly going to be a source for discord for some peoples, as indeed it already was in some parts of the world, and it was probable that water would be source of major conflicts before the end of the century.
The responsibility of States towards providing water for their citizens needed to be further examined, as did the issue of growing needs of water among populations and the right of the individual to water. Indigenous peoples suffered from the way in which water resources were managed, one Expert had pointed out, and this was very interesting and would be examined further. The possibility of formulating a Draft Declaration on Drinking Water would not be overlooked in future work. Drinking water was essential, and was a human right, and the right to drinking water could perhaps be better formalized. Access to such biological rights should become a legal necessity, with access to compensation to correct situations where access was not possible or had been withdrawn. Water was so important that there was a need to ensure that in the future, when it would be a source of conflict, that issues could be promptly and easily resolved. Privatization of this resource could be a source of violation of human rights.
Right of Reply
MIKE OMOTOSHO (Nigeria), speaking in a right of reply, said that with regard to the statement made by the International Indian Treaty Council yesterday, it had been wantonly alleged that there had been mass killings and destruction in Nigeria, where two communities were alleged to have had their homes, way of life, families, and education destroyed. This was unsubstantiated and mischievous, and did not deserve a response, however, there was no choice but to respond and provide the correct picture of the situation. The information provided had come from old and discredited files, and it was wondered in what capacity an indigenous American non-governmental organization (NGO) was getting involved in such a situation. Since the President came to power in 1999, the area under discussion had been quiet and tranquil due to the policies adopted with regard to the area. Communities had been empowered and were able to make decisions upon their own well being. This was a propaganda exercise, and where the allegations true then the international community would have responded. NGOs should bear in mind the weighty matters under discussion, and their statements should respect the dignity of the Sub-Commission and the Experts and not transgress upon their valuable time, as the Sub-Commission worked on the basis of facts and verifiable information.
Statements on the Right to Development
FRANCOISE JANE HAMPSON (Sub-Commission Expert) said the request received last year from the Commission on Human Rights that the Sub-Commission should address the issue of the right to development should be examined further, as what the Commission was requesting was topical and extremely challenging, whether talking conceptually or in terms of the conceptualization of the right. There was a need to discuss how this work could be undertaken. Under this agenda item, there were reports that directly related to this right, and these had been very enlightening and helpful. In two of the three, surprisingly, there was no reference to sustainability, and none referred to corruption. There was a need for a discussion on how to handle the right to development, as much of the other work carried out under this agenda item was related to it.
FLORIZELLE O’CONNOR (Sub-Commission Expert) said she had indicated to the Secretariat the reasons that had hindered the presentation of her report on the right to development. The reasons were beyond her control. Since she intended to present her report next year, the views expressed by Experts today would be included in the paper.
ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said with regard to what had been said on this issue, there were lots of subjects discussed under the context of economic, social and cultural rights, and the problem should be viewed from this point of view. It was important to limit it, and to determine which questions should be dealt with in the context of the right to development, and which should not be addressed in too much detail, as this would be too broad. The World Trade Organization (WTO) was an organization that Ms. O’Connor needed to examine in detail, as it was an appellate body for issues of economic law, which it had developed in a way that had not been originally envisaged. Monitoring it was therefore interesting. There was a need to analyze why the right to development had not been raised by Governments at the WTO, which illustrated how far away this issue was. Certain issues should also be clarified at the WTO, and a distinction made between applicable law and the jurisdictions of the WTO appellate body. Human rights took precedence over economic rights and the neo-liberal vision that the WTO appeared to give importance to. Often the rights of small countries were ignored and marginalized in small discussions, and there was a need for global agreement on all WTO agreements. The development of the technical assistance component was also important, and non-governmental organizations should have a right to participate.
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) said the issue of the right to development consisted of various schools of thought. The elevation of the economic, social and cultural rights to the level of civil and political rights was one of the thoughts. When governments sat in conference on behalf of a State and the people at the same time, there was always a paradox. The people concerned might not be fully represented. The right to development was linked to all other rights.
IBRAHIM SALAMA (Sub-Commission Expert) said the right to development was perceived from many perspectives, and the mandate on this topic given to the Sub-Commission was squarely within its role, and it was a big responsibility as it was a complex issue that needed to be seen in perspective. The timeframe given by the Commission needed to be examined further. What happened already at the inter-Governmental process included many transformations which the Sub-Commission should examine and keep in mind as it was a collective duty to contribute to this. The conceptual debate was being avoided, and this was a positive thing, as it was very tricky, and it was better to fill the shell of the debate with measures and not with rhetoric. The issue required to be opened up generally, but the debate needed to remain focused. The right to development meant different things to different people at different times, and this needed to be taken into account, and a gradual approach that was open to others would convince countries of the potential of this field.
MOHAMED HABIB CHERIF (Sub-Commission Expert) said that the right to development was an important issue. It was the right to have rights. The developing countries should detain that right in priority. He thought the right to development should further be developed. The right to development would be a contribution to the development of human beings.
CHEN SUNG CHUNG (Sub-Commission Expert) said the right to development was a right of peoples and nations, not just of States, and thus the concept of it should include the rights of minorities and indigenous peoples, as well as women and other vulnerable groups. It could be agreed that the right to development was not just the problem of developing countries, but of developed ones, as the gap between rich and poor was growing all over the world. The steps to achieving the right to development should not just be considered from the outside of a country, but from the inside. The introduction of the concept of sustainability was essential in the context of this right.
Reports Available on Specific Human Rights Issues, Including Women and Human Rights, Contemporary Forms of Slavery, and New Priorities, in Particular Terrorism
Under this agenda item, the Sub-Commission has before it a document (E/CN.4/Sub.2/2004/033) which is a note by the Secretary-General which reviews developments between 1 June 2003 and 1 June 2004 in fields with which the Sub-Commission has been previously concerned. This includes new signatories to International Covenants on human rights; new signatories to the International Convention on the Elimination of all Forms of Racial Discrimination; new signatories to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; progress in the Convention on the Rights of the Child; the Effective implementation of international instruments on human rights, including reporting obligations of States Parties to the United Nations instruments in the field of human rights; and progress in the International Convention on the Protection of the Rights of all Migrant workers and Members of their Families.
There is a document (E/CN.4/Sub.2/2004/034) which contains the report of the Secretary-General on the implementation of the Programme of Action for the Elimination of the Exploitation of Child Labour. The report is based on a summary of responses to a note verbale sent to Member States, United Nations specialised agencies, funds and programs as well as to international financial institutions, inviting them to provide information on their implementation of the Programme of Action. It also presents information on measures taken to implement the Programme of Action for the Elimination of the Exploitation of Child Labour adopted by the Commission on Human Rights in 1993. Many responses provide information about minimum legal ages for specific types of work or number of hours allowed for work of children under 18. Some responses also highlight the importance given to ensuring that work does not interfere with schooling and measures taken to prevent school leaving as a means of discouraging child labour. In some cases, information is provided on the legal obligation of parents to ensure the protection of their children from abuse and exploitation.
There is a report of the United Nations High Commissioner for Human Rights on systematic rape, sexual slavery and slavery-like practices during armed conflicts (E/CN.4/Sub.2/2004/35). The report refers to new developments in the activities of treaty monitoring bodies and of human rights mechanisms and in international criminal, human rights and humanitarian law on the issue of systematic rape, sexual slavery and slavery-like practice in situations of armed conflict. In its conclusions, the report says that armed conflicts exacerbate violence against women and illustrate its linkage to a system of patriarchal domination, based on gender inequality and on the subordination of women by men. In order to bring an end to the cycle of violence and prevent armed conflicts, the equal rights of women to fully participate in all aspects of social, political, economic and cultural life must be promoted and protected.
There is a report of the Working Group (E/CN.4/Sub.2/2004/36) on Contemporary Forms of Slavery. The report says that the Group co-organized, with the International Labour Organization, a special discussion on various aspects of the issue of forced labour and the challenges associated with the new manifestations of forced labour in a challenging world affected by globalization and technological change. It was highlighted that forced labour persists despite national efforts in many countries to tackle the problem. The report also says that the Working Group reviewed developments in contemporary forms of slavery and heard testimonies on sexual and economic exploitation in various countries and regions. The issue of trafficking in persons and the exploitation of the prostitution of others was discussed. Regarding the review of implementation and follow-up to the relevant conventions, the Working Group expressed concern at the lack of ratification of relevant conventions. The report contains a series of recommendations and conclusions following its twenty-ninth session.
There is a document (E/CN.4/Sub.2/2004/037) which contains the progress report of Barbara Frey, Special Rapporteur on the prevention of human rights violations committed with small arms and light weapons. This progress report addresses human rights violations committed with small arms during situations of armed conflict, including the humanitarian consequences of small arms in situations of armed conflict; international law protections regarding the availability, misuse and transfer of small arms in armed conflict; gender implications of the availability of small arms; and conclusions and recommendations. Among these, the report recommends that the international community improve the design and enforcement of small arms embargoes, and enforce criminal sanctions against persons and groups that violate embargoes. It further recommends that the international community involve women in all phases of policy regarding the availability and use of small arms.
There is a document (E/CN.4/Sub.2/2004/037/Add.1) which is an addendum to the above report. This document contains draft principles on the prevention of human rights violations committed with small arms and commentary thereto.
Before the Sub-Commission is a final report of the Kalliopi Koufa, Special Rapporteur on terrorism and human rights (E/CN.4/Sub.2/2004/40), which was submitted pursuant to resolution 2003/6 of the Sub-Commission for the purpose of completing the actual conceptual study on terrorism and human rights. The report notes at the outset that there are still issues which have either not yet been dealt with or which have not yet been fully explored for the purpose of the study mandated by the Sub-Commission. The report ends with a number of conclusions and recommendations. It emphasizes the complexity of the issue of terrorism and human rights and the need to draw on disciplines other than international law for fuller understanding of terrorism and to fashion responses to terrorism and how to reduce acts or threat of acts of terrorism.
There is a document (E/CN.4/Sub.2/2004/041), which contains the eighth report on the situation regarding the elimination of traditional practices affecting the health of women and the girl child, prepared by Halima Embarek Warzazi. The report contains a summary of national, regional and international initiatives on Female Genital Mutilation (FGM), including information supplied by Governments and international organizations, national, regional and international initiatives, and an account of the celebration of the first anniversary of the International Day of Zero Tolerance of Female Genital Mutilation. It also contains information on projects and programmes communicated to the Special Rapporteur. The report concludes that the action initiated by the Sub-Commission is leading to further progress every year, however, harmful traditional practices cannot be eliminated overnight. Great care must be taken in formulating awareness-raising messages, and where manners and customs are to be changed, it should not be done so primarily by laws; it would be better to change manners and customs by introducing others in their stead.
There is a document (E/CN.4/Sub.2/2004/042), which is a final working paper on reservations to human rights treaties. The paper details procedures and requirements for the submission of reservations to human rights treaties; the response of other high contracting parties; the reaction of the monitoring mechanisms, including their authority to reach a decision with regard to the validity of a reservation, and how a monitoring mechanism is to determine that a reservation is incompatible with the objects and purposes of a treaty; developments since the fifty-fifth session of the Sub-Commission; and finally conclusions and recommendations, which include that the Sub-Commission should suspend any further consideration of the question of reservations to human rights treaties, pending the publication of the next report of the Special Rapporteur of the International Law Commission on reservations to treaties, and in particular his examination of how to determine whether a reservation is compatible with the objects and purposes of a human rights treaty and the consequences of such a finding.
There is a document (E/CN.4/Sub.2/2004/043) which is a working paper entitled “human rights and international solidarity”. The working paper explores and identifies the expression of the principle of international solidarity - both explicit and implicit - in some of the sources and instruments of international law and examines briefly the historical evolution of the notion. It points out that though there are no disagreements as to the importance of international solidarity for the realization of human rights, there are some conceptual issues that could be clarified further. The report concludes that human rights and international solidarity constitute an extremely broad area of research; that it still arouses controversy and lacks deep analysis and study in the judicial and other fields. In contributing to a common understanding of international solidarity, the paper proposes a preliminary work plan for the consideration of the Sub-Commission.
Presentation of Report on Terrorism and Human Rights
KALLIOPI KOUFA (Sub-Commission Expert), presenting her final report on terrorism and human rights said the report was written with a view to completing the study of the topic, and dealt, in the first place, with certain core human rights and humanitarian law issues engaged by terrorism. It also addressed the crucial issue of the legal accountability of the actors involved in the criminal practice of terrorism, whether they were State or non-State entities, an issue which had not been covered to date. The report proceeded and followed up from conceptual bases contained in previous reports, and ended with a number of recommendations elaborated with an eye to the new Sub-Commission resolution 2003/15, which envisaged among other things the future elaboration of guidelines on terrorism and human rights.
In the context of the problem of so-called freedom fighters and the ever-present request of a number of States to clearly differentiate between terrorism and the struggle for self-determination, the analysis proceeded by distinguishing terrorists from lawful combatants, both in terms of combatants in legitimate struggles for self-determination and those involved in civil wars or non-international armed conflicts. There was a clear need for criteria to distinguish terrorists from freedom fighters, as this was critical to the determination of whether humanitarian law could apply, and if so, which branch. In the present development of international law, while it was generally accepted that non-State actors could be held accountable under humanitarian or international criminal law, the vital question still remaining was whether non-State actors could be held accountable as well under human rights law.
Despite intense work over the long course of the mandate, the issue of terrorism and human rights had had to be addressed on an issue by issue basis, and in this sense the whole report had been cumulative, and even the final report had less the character of a habitual final report, and more that of a progress report, owing to the need to provide further analysis of some issues and present also a major topic that had not yet been addressed. The Sub-Commission should consider requesting her to draw up a comprehensive document based on all the work done to date, and it was hoped that the Sub-Commission would consider adopting a resolution that approved a recommendation in this sense.
Discussion on the Report on Terrorism and Human Rights
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) appreciated the work of Ms. Koufa, in which she related the problems of terrorism and that of human rights. Her work had dealt with non-state actors and other actors in connection to acts of terrorism.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the report was very interesting, and on the whole the points expressed were agreed with. A great deal of attention had been paid to studying and expressing the problems linked to this issue. It was not just the report’s scientific base and depth that was important, but the practical proposals contained within it. The broad range of questions raised should be considered, namely what was and what was not terrorism, terrorism in the context of an armed conflict, the distinction between terrorists and armed conflicts, and others, without which the report would not be distinguished by its depth and excellence. It was also interesting to study the recommendations and conclusions of the Special Rapporteur, and the depth of explanation of complex questions gave a chance to recommend that Ms. Koufa draw up a comprehensive document, which should be published.
This document could define terrorism, which was a difficult issue that many United Nations bodies were attempting to do. The Sub-Commission should manage to give at least an approximate definition, and this would help many United Nations bodies. No definition could be exhaustive, but it would have a positive impact on all the work done in the field of terrorism. It could also include the root causes of terrorism, and measures for reducing the scale of terrorism, as well as preventing it. There should also be a direct link with specific measures to combat terrorism.
Paragraph 17 of the report expressed a number of ideas, which were open to dispute and perhaps not every member of the Sub-Commission would agree with them, but they remained very important ideas, both for the consideration of theoretical questions of international law and for the practical measures aimed against terrorism. The fight against terrorism was an armed conflict, and terrorists were entering into armed conflict against the State in which they acted.
CHRISTY EZIM MBONU (Sub-Commission Expert) thanked Ms. Koufa for handling the extremely difficult and controversial topic of terrorism and human rights. As long as there were freedom fighters, it would not be easy to define terrorism. A freedom fighter for one person could be a terrorist for another person. The responsibility of a State should be engaged in cases of infiltration of non-state actors committing terrorism. In any way, non-state actors should be accountable for their acts under human rights law. National liberation movements fighting for self-determination should be held responsible for their acts if they committed atrocities. She endorsed the recommendations tabled by Ms. Koufa in her paper.
FLORIZELLE O’CONNOR (Sub-Commission Expert) said the comments made so far were endorsed, and they put on record appreciation for an excellent set of papers, and the recommendations that the papers should be compiled and published more widely was supported. While discussions continued, however, particularly on counter-terrorism, it could be found that by the time the papers were published, there would be a need to redefine counter-terrorism and what the relationship between the use of the phrase and national politics was, as this often depended on national situations. There was a need for due diligence on the part of the rest of the world when the term was used in order to ensure that it was being applied appropriately and not just in order to further national claims. The work of Ms. Koufa had been most valuable.
GASPAR BIRO (Sub-Commission Expert) said the report was an excellent one; and it gave a good legal analysis of the issue. Terrorism escaped narrow definition because of its complex aspects. The issue of terrorism was amplified after 11 September and had become a concern to the international community.
MARC BOSSUYT (Sub-Commission Expert) said Ms. Koufa should be congratulated on the excellent job she had done on a particularly delicate and difficult subject that had become more and more timely and urgent during the period of her study. The definition of a terrorist act should be clearer, and it did not depend on the legitimacy or the justice of the cause behind the act. What was determinant on deciding on the terrorist nature of the act was the means used for the act, and the best reference was international humanitarian law, which distinguished between combatants and non-combatants, military objectives and non-military objectives. This was where the decisive information could be found to determine the nature of an act, whether terrorist or not. A terrorist act caused fear and was perpetrated with no distinction as to whether parties involved were included in the particular struggle. The issue of sympathy could only be inadmissible in the absence of a definition. There was a risk of being accused of a certain complicity in some acts if they were not defined as being terrorist acts.
Another issue was that of extradition, and of course there were many cases in which it would not be advisable or justified to extradite a person having committed an act, as there was no guarantee of the fair nature of the legal proceedings that they would face in the case of extradition, but there was the other side of the argument that it was up to the State on whose territory the person was found to judge that person. Regarding the death penalty in the context of terrorist acts, there was a possibility in the Optional Protocol on the Death Penalty for a State to formulate a reservation to this at the time of accession in the context of wartime after an act of severe gravity had been perpetrated. However no State had availed itself of this possibility. The work of Ms. Koufa was greatly appreciated and her recommendations supported.
EL-HADJI GUISSE (Sub-Commission Expert) said that the Sub-Commission should not dwell much longer in defining terrorism. A definition should be given relatively approaching the reality. It was difficult, wherever one was to found, to give definition to terrorism. Terrorism could be defined within national laws, which would punish acts of terrorism. Within the international context there were a series of acts that could be related to terrorism. An independent study should indicate whether equity and fair trial had been applied in the case. It should not be used as revenge. The death penalty, whatever the circumstance might be, was an unnecessary and useless practice.
ABDUL SATTAR (Sub-Commission Expert) said the in-depth scholarly study was one if the most important subject of contemporary concern, involving not just consequences for human rights but also matters of national and international security. Great pleasure was taken in joining preceding speakers in supporting the considered conclusions and recommendations reached, and a resolution would be supported to ensure that the Special Rapporteur could continue her work on outstanding aspects of this issue. Apart from commenting on the work, a brief statement would be made later on an aspect of this discussion on terrorism that was of great concern, namely that the discussion on terrorism at times stereotyped religions and reflected issues of defamation. It was hoped that members of the Sub-Commission would be able to avoid statements of that nature.
Presentation of Working Paper on Human Rights and International Solidarity
CRISTIANO DOS SANTOS (Sub-Commission Alternate Expert) said he was presenting the working paper on human rights and international solidarity on behalf of Sub-Commission Expert Rui Baltazar dos Santos Alves. It was paradoxical that international solidarity, as a tool for a more effective realization of human rights, raised controversy at a time when the changes one witnessed in an increasingly globalized world pointed out precisely to the need to impose an increased international solidarity. Also one witnessed the emergence of vibrant and intervening civil societies determined to denounce existing asymmetries that affected the present international order. But with breakthroughs or setbacks the reality was that international solidarity was always being manifested and the dialogue amongst different actors in the different domains was intensifying.
A universal acute awareness of the importance of international solidarity in the realization of human rights was developing. That was taking place not only at the global level but also at national, sub-regional and regional levels. A meaningful example of the spirit inspiring the new sense of solidarity could be illustrated by the New Economic Partnership for African Development (NEPAD), which put at the top of its agenda the concern of ensuring democracy and the policy on good governance, while putting in place cooperation and solidarity mechanisms such as the African Peer Review Mechanism.
Statements on Paper on Human Rights and International Solidarity
EMMANUEL DECAUX (Sub-Commission Expert) said the message had been effectively conveyed, and the difficulties and snares of the study had been avoided. One of the purposes of the Sub-Commission was to act as a bridge between the North and the South, and one of the approaches suggested by Mr. Dos Santos was of great objectivity and common sense. The importance of economic, social and cultural rights had been stressed, and they had a proper place in efforts. There was no need for a fourth and even fifth generation of human rights. The notion of solidarity was a powerful one, and the founders of the United Nations had invented a doctrine, that of solidarity as an extension of fraternity, but without looking towards those theoretical underpinnings, the stress of international solidarity should be on the duty of forming part of international cooperation. States were responsible for cooperation between the wealthier and poorer countries, and this was an important responsibility. International solidarity should be displayed in the implementation of all human rights.
All should stress the importance of solidarity in respect for human rights, and with development as a shared imperative. Mr. Dos Santos should continue his thinking, and the Sub-Commission support him in this testing work.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the working paper on human rights and international solidarity was written properly. However, a radical question might arise: what was the practical meaning of the paper? Each paper should be based on theories and practical aspects, and with references to other intellectual works. What would be the practical result? In the future, he would take into consideration o studies and research. He wanted to be convinced by the author of the paper about the practicality of the paper.
PENNY PARKER, of Minnesota Advocates for Human Rights, said the paper had been fascinating. However, there were a couple of practical issues to comment on. The concept of international solidarity illustrated what a non-governmental organization (NGO) was: a group of people reaching out in solidarity to people suffering human rights violations. NGOs could therefore be part of the concept as this paper evolved in the future. Perhaps in future versions of the paper, positive examples of NGOs could be dealt with. Another practical issue was that NGOs had sometimes been successful in creating international solidarity, and could therefore offer practical advice. With regard to the North-South conflict, which was behind the request of the Commission for this paper, it was the hidden conflict behind the concept of international solidarity. Many concepts should be brought to bear in this concept. The South could even help the North in cultural awareness and in traditional techniques in order to change the perception of this conflict.
MOHAMED HABIB CHERIF (Sub-Commission Expert) said that a resolution had been adopted by the United Nations in Tunisia on the establishment of an International Solidarity Fund with the aim of helping poor developing countries.
CORRIGENDUM
In press releaseHR/SC/04/10 of 3 August, the statement by Sub-Commission Expert Paulo Sergio Pinheiro on page 2 should read as follows:
PAULO SERGIO PINHEIRO (Sub-Commission Expert) said he underlined the extremely innovative character of the approach adopted by Mr. Decaux in the framework of the elaborating of his working paper on the principle of non-discrimination. Mr. Pinheiro had estimated that religious and cultural considerations should not become an obstacle to the study of the question of discrimination based on sexual orientation. In certain countries, many young people suffered from discrimination and it was up to the international community to commit itself to this issue, he added.
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