SUB-COMMISSION CONCLUDES DEBATE ON ADMINISTRATION OF JUSTICE, RULE OF LAW AND DEMOCRACY

11 August 2004

The Sub-Commission on the Promotion and Protection of Human Rights this afternoon concluded its debate on the administration of justice, rule of law and democracy after hearing from a series of non-governmental organizations (NGOs) as well as Experts and observer countries.

Issues which NGOs raised included the importance of ensuring the freedom of the press, problems affecting women in prisons, and the vulnerability of persons living in situations of extreme poverty, all in the context of the administration of justice. Country specific violations were also claimed.

Sub-Commission Experts Lalaina Rakotoarisoa and Florizelle O’Connor took the floor to respond to comments made in earlier meetings on their working papers on the difficulties of establishing guilt with regards to crimes of sexual violence, and women in prisons respectively.

Experts Lee A. Casey and Miguel Alfonso Martinez took the floor, as did representatives of the observer countries of Iraq and Tunisia.

Côte d’Ivoire exercised its right of reply.

Taking the floor were representatives of the following non-governmental organizations:
Foundation for Aboriginal and Islander Research Action; Asia-Japan Women's Resource Center; United Nations Watch; Asian Forum for Human Rights and Development; World Federation of Trade Unions; European Union of Public Relations; International Youth and Student Movement for the United Nations (speaking on behalf of International League for the Rights and Liberation of peoples, and Women's International League for Peace and Freedom); World Union for Progressive Judaism; International Movement ATD Fourth World; and International Institute for Peace.

When the Sub-Commission reconvenes at 10 a.m. on Thursday, 12 August, it will take action on a series of draft resolutions and decisions. The Sub-Commission will conclude its annual session on Friday, 13 August.

Statements on the Administration of Justice, Rule of Law and Democracy

LES MALEZER, of Foundation for Aboriginal and Islander Research Action, said the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples did not specifically address the administration of justice in the context of democracy. It did however contain a useful commentary on the human rights framework and its application or relevance to the case of indigenous peoples. It made some references to what could be regarded as mechanisms of truth and reconciliation, and having noted these and given thought to the role, variation, value and connection of these models, further study of the mechanisms available and relevant to indigenous peoples rights should be included in the Sub-Commission’s consideration. Treaties could be regarded as truth and reconciliation measures as envisaged by indigenous parties to treaties who believed the promise and potential of the historical treaties had not been realized. The Sub-Commission’s work to examine the issue of the administration of justice, rule of law and democracy was welcomed.

HIROKO HATAE, of Asia-Japan Women's Resource Center, said she would like to introduce recent developments and ongoing difficulties that victims of sexual violence faced in Japanese courts according to the report of the Japan Federation of Bar Associations. The report analysed difficulties inherent in the criminal law itself, problems arising from the investigation process and trial procedures, and problems in court decisions. In recent developments, police officers were now required, during investigation, to understand the feelings of victims and respect them as individuals, and the limited six-month complaint period for sex crimes as indecent assault and rape had been abolished. In public trials, in order to mitigate the physiological burden of witnesses, measures such as using video technology, or providing protective screens or attendants could now be taken. However, victims still faced many difficulties. One over-arching problem was that there was no requirement of specialized knowledge about sexual crimes for those engaged in judicial duties.

HILLEL NEUER, of United Nations Watch, said the United Nations could play a vital role in promoting the administration of justice, democracy and the rule of law around the globe. There was one critical area where the new High Commissioner for Human Rights could speak out for justice, democracy and the rule of law. The lifeblood of democracy was the free flow of information, and that meant freedom of the press. In many parts of the world, journalists were censored, threatened and even attacked, and this constituted a fundamental assault on the underlying norms of democracy and the rule of law. It was shocking but true that some of the world’s major media organizations had been complicit in censorship by broadcasting stories they knew to be misleading, misrepresentative or outright false. The danger to democracy was clear. Governments stood or fell based on votes that were founded in the citizen’s faith in credible sources of information, and it was hoped the High Commissioner would act to ensure that press freedom was respected by all.

The representative of Asian Forum for Human Rights and Development, drew the attention of the Sub-Commission to the manner in which justice had been administered in the predominantly Muslim part of southern Thailand since the beginning of 2004. After violence broke out in southern Thailand, commencing with a raid of the Narathiwat Rachanakarin army camp on 4 January 2004, martial law had been imposed across the country’s restive south, and that had limited the people’s access to their constitutional rights. Military mechanisms and use of force were authorized as effective means to combat “separatists and terrorists”, and to maintain law and order in the area. Various incentives from the Government in the form of money awards to any officials who could arrest the insurgents had been used in order to encourage officials to arrest instigators of violence. A number of people had been arrested since early this year. Torture had also been used to extract confessions from suspects who were innocent.

REFAQAT ALI KHAN, of World Federation of Trade Unions, said democracy had provided many mechanisms for the implementation of human rights, whether these were the social welfare programmes of the Government or the powers of the judiciary and Parliament to legislate and give effect to legislation. Many States were moving to give legal sanctity to basic human rights. At the same time, even the most developed of the democracies still suffered from many shortcomings. The situation in the United States concerning black men in prison, in Pakistan with regard to un-prosecuted rapes and in Venezuela where President Hugo Chavez’s regime was being destabilized were all of concern.

ANJALI GANDHI, of European Union of Public Relations, said women prisoners were confronted with special challenges. One had to view their vulnerability in the context of socio-economic and cultural ethos of the society in which they lived. Large numbers of women in the world were poor, marginalized and were the victims of patriarchy. If that was true of women in general, women prisoners were even more vulnerable. There was a danger that due to imprisonment, some women might be completely abandoned by families. In Pakistan, it was reported that 7,000 women and children were held in 75 jails in the country. Most were detained in extremely poor conditions, and faced a considerable threat to their safety. According to a report, 88 per cent of women prisoners in the country were in jail as a result of ambiguities in the Zina Ordinance. Illiteracy, poverty and lack of awareness about legal procedures were the major handicaps confronting women prisoners under trial.

JAN LONN, of International Youth and Student Movement for the United Nations, speaking on behalf of International League for the Rights and Liberation of peoples, and Women's International League for Peace and Freedom, said the rights of peoples to peace and self-determination were human rights fundamental to the realization of most other categories of human rights. The military occupation of Iraq had resulted in grave and systematic violations of humanitarian law and human rights standards by the occupying powers. Regrettably, the intergovernmental bodies of the United Nations had largely been silent on this issue. The Sub-Commission could play an important role by studying and discussing some of the systemic and principled issues that had arisen with regard to Iraq, the United Nations and the administration of justice, the rule of law and democracy. If the United Nations and the international community could accept departures from generally accepted principles for the holding of democratic elections as part of a self-determination process and ending an occupation, that could have serious implications for the credibility of international election assistance and monitoring in the future, and this matter deserved serious consideration.

DAVID LITTMAN, of World Union for Progressive Judaism, recalled that on 2 December 2003, the Executive Vice Chairman of the Conference of Presidents of Major Jewish Organizations and the Secretary-General of the Iranian American Jewish Federation had written to the United Nations Secretary-General on the subject of 12 missing Iranian Jewish males and requested his intervention. They recalled that three years earlier, relatives had written a letter to President Mohammed Khatami on that matter. The Working Group on Arbitrary Detention had referred to many aspects of the Institutional and Legal Framework for Detention in its report to the 2004 Commission on Human Rights. Last February, the International Committee of the Red Cross had convened in Geneva in its first ever Conference of Governments and non-governmental experts, to discuss the issue of missing persons. At the Conference, it was unanimously agreed that families had the right to know the whereabouts of their loved ones.

XAVIER VERZAT, of International Movement ATD Fourth World, said the Sub-Commission should pay particular attention to persons and groups in situations of extreme poverty, as this placed men, women and children in a situation where their fundamental rights and freedoms could be violated, in particular effective and fair access to justice and the law. Persistent poverty and social exclusion led to a situation where many were without rights. The poor lived similar experiences the world over, where long-standing situations of denial of rights led some to believe that their situation was inevitable. The Sub-Commission should systematically pay particular attention to the situation of the poorest, the most disadvantaged elements of the population and adopt appropriate recommendations in order to ensure that access to justice becomes effective, including for the most excluded.

SHRI PRAKASH, of International Institute for Peace, said the claims of a return to democracy in Pakistan were seen as mainly cosmetic by groups such as the Commonwealth, which in September had refused to readmit Pakistan to the forum. While the extraordinary powers accumulated by the President, who also retained his post as Chief of the Army, indicated a shift to still greater autocracy at the higher political levels, the hold of the armed forces on other spheres of society also continued to expand. The situation of prisoners in the jails of Pakistan was also deplorable. With the policy of disallowing visits to jails by non-governmental organizations, activists, lawyers and journalists, conditions within jails remained even grimmer than in past years. Torture was endemic; and violations of the jails manual routine.

LEE A. CASEY (Sub-Commission Expert) said in commenting on this agenda item yesterday, a number of non-governmental organizations’ speakers had raised the issue of Article 98 agreements in the Rome Statutes under the rubric of impunity. These agreements were contemplated in the Rome Statutes, and obtaining such agreements had been necessary for the United States due to the insistence of the International Criminal Court (ICC) that it had jurisdiction over non-Party States. The ICC was the principle, not the agent of its Member States. The Rome Statutes were only a treaty. Norms remained applicable to the extent they could be applied in every case. At issue was the ability of every State to decide the responsibilities of its citizens. The ICC was a largely untried and unchecked institution.

OSAMA MAHMOUD (Iraq) said that the interim Government had taken over the authority in the country and new legislation had opened the way for a democratic process. The right to form political parties had been made a reality through the proclamation of a new law. The judiciary was independent. The transfer from dictatorship to democracy had also allowed citizens to exercise their constitutional rights. In the new Iraq, people were living in peace and in tranquillity. The Government was also endeavouring to open every opportunity to people to increase employment opportunities. The overall prosperity of the country would also allow people to have a share in the wealth of the country. Iraq would pursue a police of non-interference in the affairs of its neighbours.

HABIB MANSOUR (Tunisia) said there was a real commitment in Tunisian society to modernity, based on the consecration of the universal values of promotion and protection of human rights, democracy, and political pluralism. There was consecration of the rule of law and the functioning of the administration and justice in all independence. Reforms to the Constitution had led to an improved situation. It would be appropriate for the participants in the Sub-Commission to acknowledge this and refrain from spouting erroneous facts, and instead participate in the promotion of the noble cause of human rights around the world. There had been erroneous comments with regard to Tunisia’s commitment to human rights and the promotion of the rule of law. Work had been done throughout the system to consolidate and improve human rights and there was an unshakeable commitment to human rights in the country.

LALAINA RAKOTOARISOA (Sub-Commission Expert) thanked all her colleagues as well as representatives of non-governmental organizations whose comments had contributed to her working paper on the difficulties of establishing guilt with regard to crimes of sexual violence. She recalled that in the working paper, she had underlined that children should not be forced through the stress of being witnesses in front of courts. She pointed out that in many countries, including in the United States, professionals spoke for the children so that they did not have to relive the traumatising experiences which they had already suffered from. With respect to trafficking in persons, she would incorporate the issue in her future paper. If a husband subjected his wife to sexual violence, she was entitled to a remedy and a fair trial.

FLORIZELLE O’CONNOR (Sub-Commission Expert) thanked all the Experts who reacted to her working paper on women in prison, including non-governmental organizations and Governments. A woman’s stigma in prison could only be felt and expressed after she was released because of the silence observed while she was in prisons. The Sub-Commission should publish a global document on problems faced by women within the justice system, with particular emphasis on sexual violence problems.

MIGUEL ALFONSO MARTINEZ (Sub-Commission Expert) said in order to clarify what had been said yesterday afternoon in a statement by Mr. Casey with respect to the universal implementation of treaties, Mr. Alfonso Martinez had said that the defense of sovereignty was a basic principle of international relations and was a capital part of the relations between States, including jus cogens. Mr. Casey had agreed with this with respect to international sovereignty, and there was appreciation of this agreement. However, Experts should be mindful of any discrepancies and disagreements that could arise, and in that context, the principle of sovereignty in international relations and the positions of Mr. Casey made necessary a distancing from the position of the latter. National sovereignty was an element that was applicable to all sovereignties existing around the world, not just Cuba. Sovereignty could not be reduced just to that country of which one was a citizen, and it applied to all sovereignties of all countries.

LEE A. CASEY (Sub-Commission Expert) said he was not sure what context Mr. Alfonso Martinez was referring to, but the principle of national sovereignty did indeed extend beyond the State of the United States and all other States, and if he had fallen below respect for that principle, he apologized.

MIGUEL ALFONSO MARTINEZ (Sub-Commission Expert) said to clarify, he had thought that Mr. Casey had supported legislation in his country with regard to Cuba, and if that was the case, it was difficult to understand how legislation passed in one country could affect the sovereignty of another country. If that was the case, then the support of Mr. Casey for the international blocade of Cuba was queried as to whether it existed.

Right of Reply

WILLIAMS KEBE SEKA (Côte d’Ivoire), speaking in a right of reply, said that with regards to allegations made against States that they did not respect human rights, the Government of Côte d’Ivoire had condemned the murder of a journalist, and an investigation had been carried out in this respect, leading to the imprisonment of the guilty persons, and this had not been interfered with by the Government. Freedom of the press was a concern for the Côte d’Ivoire, who had it enshrined in its Constitution and worked hard to preserve and protect it.



CORRIGENDUM


In press release HR/SC/04/20 of 10 August, the statement by Sub-Commission Expert YOKO HAYASHI on page 5 should read as follows:

YOKO HAYASHI (Sub-Commission Expert) wondered if the definition of rape under the national criminal law should be subjected to review. For instance, in some countries rape was defined as a crime that perpetrators sexually assaulted victims by means of either verbal threat or physical force by which the victim’s resistance had been oppressed. One could easily imagine that there were certain victims who could be oppressed even without threat or force, if there existed power differentials in relation to the perpetrators. She noted that the Special Rapporteur referred to mandatory medical treatment for offenders, to which she fully agreed that the point should be examined by considering the offenders’ fundamental human rights. Those who were concerned about victims should carefully consider how to spend limited government funds in the most effective way.