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SUB-COMMISSION CONTINUES DEBATE ON ADMINISTRATION OF JUSTICE, RULE OF LAW AND DEMOCRACY
22 August 2006
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Sub-Commission on the Promotion
and Protection of Human Rights
22 August 2006
Experts Present Working Papers on Accountability of International Personnel Taking
Part in Peace Support Operations, on Circumstances in Which Parties Can
Open Fire, and on the Implementation of the Right to an Effective
Remedy for Human Rights Violations
The Sub-Commission on the Promotion and the Protection on Human Rights this afternoon continued its discussion on the administration of justice, the rule of law and democracy, hearing the reports of Experts on working papers on issues pertaining to the agenda item under discussion. The Experts introduced working papers on the accountability of international personnel taking part in peace support operations, the circumstances in which a party can open fire in the law of armed conflict/international humanitarian law and human rights law, the implementation in practice of the right to an effective remedy for human rights violations, and the report of the sessional working group on the administration of justice.
Françoise Jane Hampson, Sub-Commission Expert, introducing her working paper on the accountability of international personnel taking part in peace support operations, said there had recently been significant developments under human rights law in this regard. She also briefly presented her working paper on circumstances in which a party could open fire according to the law of armed conflict/humanitarian law and human rights, before commenting on disappearances, saying that these were the worst human rights violation. She strongly recommended that a fact-finding body on disappearances be able to conduct hearings.
Also introducing a working paper on the implementation in practice of the right to an effective remedy for human rights violations, Mohamed Habib Cherif, Sub-Commission Expert, said that the subject brought up a number of questions, as well as theories and practices. The right to an effective and equitable remedy required the existence of competent and independent court, a non-discriminatory procedure carried out in public, and guaranteed the right of counsel.
Antoanella-Iulia Motoc, Sub-Commission Expert, introducing the report of the sessional working group on the administration of justice, said the Working Group had met twice during the current session. The members of the group were of the view that the UN personnel should be accountable for their acts during the peacekeeping operations. A number of Experts had presented working papers during the debate stressing their experiences in peacekeeping operations, particularly in Timor Lieste. The representative of the Office of the High Commission for Human Rights had presented a paper on transitional justice.
In an interactive dialogue with regard to the reports presented previously, a number of Experts provided comments and suggestions to the reports on the principles and guidelines to the fight against terrorism, human rights and State sovereignty, the universal implementation of international treaties with regard to human rights, and on the difficulty to establish guilt or responsibility with regard to sexual violence.
Also taking the floor this afternoon were Sub-Commission Experts Yozo Yokota, Abdul Sattar, El-Hadji Guisse, Emmanuel Decaux, Halima Embarek Warzazi, Ibrahim Salama, Florizelle O’Connor, Lalaina Rokatoarisoa and Vladimir Kartashkin.
The next public meeting of the Sub-Commission will be held at 10 a.m. on Thursday, 24 August, during which it will begin to take action on draft resolutions and decisions.
Statements on the reports on the principles and guidelines in human rights in the fight against terrorism, on the universal implementation of international treaties pertaining to human rights, on the difficulty in establishing guilt or responsibility in matters of sexual violence, and on human rights and state sovereignty
YOZO YOKOTA, Sub-Commission Expert, commenting on the working paper by Mr. Kartashkin on “Human rights and State sovereignty”, agreed with the argument that while sovereignty for a State meant supreme power within a territory and independence in international relations, sovereign power of the State both within its territorial boundaries and in the foreign policy arena was not absolute. It should be added that in today’s political theory of democracy, it was understood that sovereignty originated in the people. Sovereignty lay in the people, but its exercise was entrusted to the State. Mr. Kartashkin asserted that State sovereignty was severely restricted in contemporary international law by: a voluntary assumption of international obligation; concluding treaties; joining international organizations; accepting the binding character of certain resolutions and decisions of international organizations; and acceptance of the principle of supremacy of international norms over national legislation. Most of the cases given, however, might rather be ones of the limitation of the use of sovereignty rather than the limitation of sovereignty itself. That was why a State could recover its full sovereignty by withdrawing from treaties or international organizations.
It was argued in the working paper that the characterization of a series of gross and massive violations of human rights, whose perpetration entailed criminal responsibility, as international crimes, had seriously limited State sovereignty. In that connection, Mr. Yokota observed that while in theory that might be correct, in reality it was difficult to enforce, as the serious crimes committed in Timor-Leste in 1999 had clearly demonstrated. He agreed that the efforts of the international community and individual States to secure worldwide respect of fundamental rights and freedoms could not be regarded as interference in internal affairs. However, he disagreed that, under the provision of Article 56 of the Charter, in extreme cases States could take unilateral military action within certain limitations. They had to be careful when they allowed States to resort to use of force even for humanitarian purposes. Finally, he supported recommending to the Council that it appoint a special Rapporteur or Rapporteurs to conduct a study on the topic. Turning to the difficulty of establishing guilt in cases of sexual violence in times of conflict, he thought Ms. Rakotoarisoa’s study was a good one, and that the topic was important, and he hoped that it would be continued under the new Council.
ABDUL SATTAR, Sub-Commission Expert, said that the principles and guidelines on human rights in the context of the fight against terrorism prepared by Ms. Koufa was a timely document and should be approved urgently due to the numerous terrorist acts taking place around the world. The development of the principles and guidelines was a slow process and the author should pursue her work. Some countries had adopted guidelines of assistance to victims of terrorism without going further in dealing with the cause of terrorism. States should be cooperative in adopting the principles and guidelines prepared by Ms. Koufa, and the adoption of some of the elements in the document was urgent.
With regard to the issue of human rights and State sovereignty, the document prepared by Mr. Kartashkin was more than a working paper. He had mentioned the definition of sovereignty from the Western perspective. The Constitution of Pakistan said “sovereignty belonged to God Almighty”. By accepting the UN Charter, States had subjected themselves to the constraints and obligations of that document, and had the obligation to respect human rights within their own jurisdictions. Concerning the report of Mr. Decaux, on the universal implementation of international treaties with regard to human rights, the work had produced concrete results. Regarding Ms. Rakotoarisoa’s work on the difficulty of establishing guilt or responsibility with regard to sexual violence, the paper she had prepared would reaffirm the rights of women in society.
EL-HADJI GUISSÉ, Sub-Commission Expert, commenting on the paper on State sovereignty and human rights, observed that Mr. Kartashkin had separated notions of the State on the one hand, and of sovereignty on the other. But a State was necessarily composed of people, territory, and lastly, sovereignty. Putting the concepts of sovereignty and State in opposition was to harm them both. Sovereignty was what allowed the State to speak on an international level. It was international sovereignty that actually allowed the State to be a legal entity capable of acting in the context of international law, or in relation to other States in the context of an international body such as the United Nations. Sovereignty and human rights, in the context of a State, was a framework for the protection of rights recognized to the individual and which the international community called upon States to respect. He also agreed with Mr. Sattar that sovereignty belonged to the people, who delegated that sovereignty to Government officials working within the framework of a State.
Turning to the paper by Ms. Rakotoarisoa regarding the difficulty of establishing guilt or responsibility in cases of sexual violence against women, Mr. Guissé encouraged the continuation of that work. The very difficulty of obtaining evidence put the lives of the victims in jeopardy. Once sexual violence was proved, what could the victim get, he asked, wondering whether compensation or reparations could be demanded from the State on whose territory the crime was committed, or from the State whose national had committed the crime. It was now being perceived that these were crimes for which there could never be time limits. It was a difficult issue, and it might well be that they were only seeing the start of the problems facing the study of the subject, but he was grateful for the work and hoped that it would continue.
EMMANUEL DECAUX, Sub-Commission Expert, referring to the work done by Mr. Kartashkin, said that it was excellent. Given the large number of sources in the work, the work should be a collective one. There was also a need to avoid politicization of the issue by going back to the past argument of sovereignty. Sovereignty was a two-faced aspect, with one at the domestic and the other at the international level. The legal aspect of sovereignty had been supported by the existence of constitutions and other legal instruments. In France, for example, the State had formulated a means for the flexible exercise of sovereignty. The rejection of the European Union constitution by France had invoked an argument of national sovereignty.
International sovereignty should invoke the whole series of legal instruments. The collective framework for the safeguard of human rights at the international level could not in any way affect the sovereignty of a State. The UN Charter had prevalence over all national laws and did not go against the national sovereignty of a State. The proliferation of UN operations in peace-building did not contravene the sovereignty of the concerned State. The human rights concerns of the international community were legitimate; and concerns directed at a State might not be considered as an intervention in the affairs of a State. Humanitarian interventions might be viewed as the same thing as peace-building operations.
HALIMA EMBAREK WARZAZI, Sub-Commission Expert, regarding Mr. Kartashkin’s study on human rights and State sovereignty, felt that it would have been useful if he could have given an overview of the birth of the concept of humanitarian intervention, which was a French invention. She agreed with Mr. Yokota on the caution necessary in using force to intervene in a State on humanitarian grounds. Any such action should be undertaken within the framework of a Security Council decision. Turning to another report, Mr. Decaux’s dedication and perseverance had created this useful working tool to remind all of the need for universal implementation of the human rights treaties. She agreed that a treaty without a monitoring mechanism became an orphan, with no one to champion its cause, and also agreed that a stepping back of the commitments undertaken at the Vienna Conference was regrettable.
Regarding the preliminary report on the difficulty of establishing guilt or responsibility in cases of sexual violence, Ms. Warzazi agreed that it was extremely difficult to investigate such cases, and, unfortunately, their number was growing. The worst of rape was that, not only did women victims of rape generally not see their aggressors punished, in many countries women themselves then became objects of shame. Governments should study the reason why victims did not come forward. One obvious reason was that the victims had to lodge their complaints to men. Policewomen and women judges should deal with such cases, as they now did in India. Finally, she thanked Ms. Koufa for her work on the draft principles and guidelines on human rights in the context of the fight against terrorism. The Working Group had been extremely effective. She also thanked Barbara Frey for her study presented yesterday. The expert body that followed the Sub-Commission should continue all of the important work she had just commented on.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, said the work done by Ms. Koufa had enabled the Sub-Commission to discuss the issue of terrorism, which was not taken into consideration in the reform process of the United Nations. Consistency should be maintained in dealing with the complex subject of terrorism. Internal jurisprudence and international norms in matters of terrorism should be compatible. With regards to sexual violence, the issue of forced marriage was considered as slavery. Parents, based on tradition, arranged the forced marriage of their children. She did not believe that it was appropriate to use the word “marriage” in the case of forced marriage – it was simply rape. A rape that took place in armed conflict could not be considered a forced marriage but was a crime of sexual violence. Forced marriage should not be considered from the positive aspect of “marriage”.
The issue of primacy of international treaties pertaining to human rights over domestic laws should also be highlighted in matters of sovereignty. When human rights were at stake, the primacy of international humanitarian law should be invoked. International treaties were self-executing within domestic law and the domestic competence of a judge should be stressed in applying them. The issue should be dealt with in a serious manner.
IBRAHIM SALAMA, Sub-Commission Expert, said that in Experts’ working papers the most important thing was to identify gaps and propose action. All the studies had done that, but sometimes the two functions were not sufficiently visible in the conclusions. With regards to the guidelines for human rights in the context of counter-terrorism measures, that was a good example of filling a gap. Such an initiative should be enshrined in the work of the Sub-Commission or in that of the succeeding body of Experts. On the study on sexual violence, the expert had put a finger on a fundamental problem. He was not sure, however, if the practices defined were sufficiently clear to define complementary standards in the law of violence against women in addition to soft law on the subject. For example, the use of policewomen and women judges might just be good practice, but it might be time to suggest that it be included in existing guidelines.
On Mr. Kartashkin’s paper, Mr. Salama said that one of the most important conclusions was that the intrusion of international public law into the domain of human rights law would continue in future. There were some dangers there. Further, collective humanitarian interventions and unilateral interventions should be clearly distinguished. He was not happy with the notion of unilateral interventions being sanctioned under the charter for humanitarian reasons. Could human rights considerations be distinguished from political ones in situations of conflict, he asked. That said, if the human rights component of a conflict could be acted on separately, as had been recently done in Geneva by the Human Rights Council, that was a good thing. On Mr. Decaux’s paper, he observed that States needed to evaluate whether they had the financial means to implement a human rights treaty before they ratified it. He was not saying that if a State were poor then it had an excuse for violating rights, but that if a State was not empowered to implement rights the reasons for that had to be addressed. He agreed with Mr. Decaux that it was necessary to start with the individual, and that each person should be encouraged to seek redress through existing international instruments. He also agreed with the fundamental linkage that should be established between ratification and the universal periodic review mechanism, so that the real reasons of failure to ratify could be understood.
MOHAMED HABIB CHERIF, Sub-Commission Expert, asked Mr. Decaux what were the consequences of reservations made by States in time of ratification of international treaties. Concerning the report of Ms. Rakotoarisoa on the difficulty to establish guilt or responsibility with regard to sexual violence, he said the protection of victims in the case of sexual violence was essential during judicial proceedings. The collection of evidence should take place in a very careful manner because of the negative effects it might produce in the event that the allegation proved to be baseless. If the evidence did not support the claims of the victim, the victim should be protected from the presumed perpetrator who had been incarcerated and freed later on. With regard to the report of Mr. Kartashkin, if the sovereignty of a State was respected, then the need for human rights monitoring would be less, and the respect of the sovereignty of a given State might facilitate dialogue in the promotion of human rights.
FLORIZELLE O’CONNOR, Sub-Commission Expert, congratulated all the colleagues whose papers were being examined. All of the papers were linked, because in reality all human rights were indivisible. With regard to women and sexual offences and proof of guilt, there were tremendous cultural and social attitudes that challenged those who sought to bring justice to the victims. However, there were methods that could and had been used to remove the burden from the victims. Once the report was made the police had the right to proceed with prosecution whether or not the victim wished to go ahead. In such cases, prosecution figures increased dramatically, with less trauma for victims. Another important method was the use of specially trained police, male and female, whose sole priority was to take statements by persons who had been exposed to sexual violence and to provide counselling and ensure prosecution.
In terms of the obligations of States to ratify treaties, Ms. O’Connor thanked Mr. Salama for making the point that it was crucial to find out why States were not fulfilling their reporting obligations, and why they had not signed treaties. It could be a matter of simple bureaucratic ignorance. For many States, signing human rights treaties was good public relations, without concern for the obligations they contained. Sensitisation sessions should be held focusing on the officials responsible, who often were not clear on human rights terminology or capable of writing reports. On sovereignty, in developing countries it was often not possible to draw a line between sovereignty and economic agreements. Turning to the study on human rights in the context of fighting terrorism, she noted that legislation was currently being drafted on terrorism. For that reason, it would be useful if some preliminary signals could be given as to defining who or what was a terrorist.
LALAINA RAKOTOARISOA, Sub-Commission Expert, in concluding remarks to the presentation of her report on the difficulty in establishing guilt or responsibility in matters of sexual violence, said the issue of presumption of innocence was important with regard to the individual on trial. The complicated situation of sexual violence required the protection of the victim and witnesses. DNA testing might be an effective means of collecting evidences but its use might be different from one country to another and might contribute wrongly to a person’s incrimination. She agreed with Ms. Motoc that the use of the term “marriage” with regards to forced marriage was inappropriate.
VLADIMIR KARTASHKIN, Sub-Commission Expert, responding to comments by Experts on his working paper on Human rights and State sovereignty, said that he had been put in a tricky situation: many Experts had spoken on his paper, and they had put forward a range of different views. On the question on whether there was such a thing as justified intervention and non-justified intervention, he believed that any use of force in a humanitarian intervention had to be undertaken within the context of the Security Council.
Responding to a comment that his work had reflected the western point of view, he said that he had simply tried to put forward his views, based on the United Nations Charter and the current system of international agreements. The truth was that his conclusions were controversial, without a doubt. An interesting comment had been made on the limitations of international sovereignty, and that the right to withdraw from a treaty was proof that the limitation was not absolute. In that regard, he noted that the human rights covenants did not provide for a way to withdraw. Even if they had included such a provision, States could not refuse to comply with fundamental international law standards. Regardless of whether a State belonged to a particular convention or not, it did not have the right to commit genocide. One thing that was clear was that there was a need to give consistency to the implementation of international human rights law with regards to State sovereignty. He hoped he would be permitted to submit an expanded working paper to the Human Rights Council on the issues he had not been able to cover in his report so far.
Introduction of the working paper on the accountability of international personnel taking part in peace support operations
FRANCOISE JANE HAMSPON, Sub-Commission Expert, introducing her working paper on the accountability of international personnel taking part in peace support operations (A/HRC/Sub.1/58/CRP3), said that there had been significant developments under human rights law. She also briefly presented her working paper on circumstances in which a party could open fire according to the law of armed conflict/humanitarian law and human rights (A/HRC/Sub.1/58/CRP.5)
On the subject of disappearances, she was delighted that at the first session of the Human Rights Council it had adopted the draft Convention on Enforced Disappearances and she very much hoped that it would be adopted by the General Assembly. In her experience disappearances were, without exception, the worst human rights violation as far as the friends and family of the victim were concerned. While wanting to know why and how a killing had occurred, the family and friends could come to terms with fact of the death. In the case of disappearances, they were trapped forever in a kind of hell. In order for a fact-finding body to be able to reach conclusions, rather than simply to record the views of each side, it was absolutely essential for it to be able to conduct hearings. If the committee to be established for the disappearances convention was to be able to work, it had to be able to interview all the relevant witnesses. There was a provision for in-country visits, but not in the context of urgent measures in individual cases or in the context of an individual petition.
Working paper on the accountability of international personnel taking part in peace support operations
An expanded working paper on the accountability of international personnel taking in peace support operations (A/HRC/Sub.1/58/CRP3), seeks to provide a certain among of information to up-date the previous report. The paper says a significant development has occurred within the UN, where the issue of abuses committed by international personnel has been steadily raising up the agenda. The Secretary-General established a Redesign Panel on the UN International Justice System. The mandate of the Panel was is to propos a model for resolving staff grievances in the UN that is independent, transparent, effective, efficient and adequately resourced and that ensures managerial accountability.
Working paper on the circumstances in which a party can open fire in the law of armed conflict/international humanitarian law and human rights law
A working paper on the circumstances in which a party can open fire in the law of armed conflict/international humanitarian law and human rights law (A/HRC/Sub.1/58/CRP.5), says that the paper, so far as is possible, has been drafted in non-technical terms. It seeks to explain and describe the problem, rather than to solve it. This particular issue would merit a longer and more in depth study. The paper gives case studies on the issue.
Introduction of the working paper on the implementation in practice of the right to an effective remedy for human rights violations
MOHAMED HABIB CHERIF, Sub-Commission Expert, introducing the working paper (A/HRC/Sub.1/58/CRP.4), on the implementation in practice of the right to an effective remedy for human rights violations, said that the subject under discussion had brought up a number of questions, as well as theories and practices. Mr. Decaux had brought up forcefully at a previous meeting the underogable nature of the right to be heard by a judge. In fact, everyone had to find the adequate procedure, the relevant body, or the effective mechanism for bringing their complaint or civil action before a competent tribunal, whatever the nature of the author of the human rights violation, or of the victim or of the person responsible for applying the law. The right to remedy had to be both effective and equitable. All human rights instruments, as well as national instruments, specifically guaranteed that right; but the right to appear before a judge needed to be given concrete form.
Mr. Cherif said that that effectiveness rested not just on the concretization of the right to effective remedy in law, but also on its effective implementation as a practical matter. The right to an effective and equitable remedy required the existence of competent and independent court, a non-discriminatory procedure carried out in public, and guaranteed the right of counsel. There were also certain necessary complementary guarantees, including that the individual had to be informed sufficiently and effectively of their right to a judge. The effective remedy of recourse to a judge was a discouragement to human rights violations.
Working paper on the implementation in practice of the right to an effective remedy for human rights violations
An expanded working paper on the implementation in practice of the right to an effective remedy for human rights violations (A/HRC/Sub.1/58/CRP.4), sets out the reasons why the implementation in practice of the right to an effective remedy plays such an important role in preventing human rights violations and the relationship between this particular right and the broader question of implementation of human rights law. It proposes that the Working Group on the Administration of Justice and the Sub-Commission should request the authority of the Human Rights Council to carry out a study on the implementation in practice of the right to a remedy, on the basis of the working paper produced in 2005.
Report of the Sessional Working Group on the administration of justice
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, introducing the report of the sessional working group on the administration of justice, said the Working Group had met twice during the current session. Participants were of the view that UN personnel should be accountable for their acts during the peacekeeping operations. The working paper proposed that the Human Rights Council should take responsibility in appointing the members of the Group. The applicability of international humanitarian law and international human rights law was stressed. The representative of the Office of the High Commissioner for Human Rights had presented a paper on transitional justice.
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For use of the information media; not an official record
and Protection of Human Rights
22 August 2006
Experts Present Working Papers on Accountability of International Personnel Taking
Part in Peace Support Operations, on Circumstances in Which Parties Can
Open Fire, and on the Implementation of the Right to an Effective
Remedy for Human Rights Violations
The Sub-Commission on the Promotion and the Protection on Human Rights this afternoon continued its discussion on the administration of justice, the rule of law and democracy, hearing the reports of Experts on working papers on issues pertaining to the agenda item under discussion. The Experts introduced working papers on the accountability of international personnel taking part in peace support operations, the circumstances in which a party can open fire in the law of armed conflict/international humanitarian law and human rights law, the implementation in practice of the right to an effective remedy for human rights violations, and the report of the sessional working group on the administration of justice.
Françoise Jane Hampson, Sub-Commission Expert, introducing her working paper on the accountability of international personnel taking part in peace support operations, said there had recently been significant developments under human rights law in this regard. She also briefly presented her working paper on circumstances in which a party could open fire according to the law of armed conflict/humanitarian law and human rights, before commenting on disappearances, saying that these were the worst human rights violation. She strongly recommended that a fact-finding body on disappearances be able to conduct hearings.
Also introducing a working paper on the implementation in practice of the right to an effective remedy for human rights violations, Mohamed Habib Cherif, Sub-Commission Expert, said that the subject brought up a number of questions, as well as theories and practices. The right to an effective and equitable remedy required the existence of competent and independent court, a non-discriminatory procedure carried out in public, and guaranteed the right of counsel.
Antoanella-Iulia Motoc, Sub-Commission Expert, introducing the report of the sessional working group on the administration of justice, said the Working Group had met twice during the current session. The members of the group were of the view that the UN personnel should be accountable for their acts during the peacekeeping operations. A number of Experts had presented working papers during the debate stressing their experiences in peacekeeping operations, particularly in Timor Lieste. The representative of the Office of the High Commission for Human Rights had presented a paper on transitional justice.
In an interactive dialogue with regard to the reports presented previously, a number of Experts provided comments and suggestions to the reports on the principles and guidelines to the fight against terrorism, human rights and State sovereignty, the universal implementation of international treaties with regard to human rights, and on the difficulty to establish guilt or responsibility with regard to sexual violence.
Also taking the floor this afternoon were Sub-Commission Experts Yozo Yokota, Abdul Sattar, El-Hadji Guisse, Emmanuel Decaux, Halima Embarek Warzazi, Ibrahim Salama, Florizelle O’Connor, Lalaina Rokatoarisoa and Vladimir Kartashkin.
The next public meeting of the Sub-Commission will be held at 10 a.m. on Thursday, 24 August, during which it will begin to take action on draft resolutions and decisions.
Statements on the reports on the principles and guidelines in human rights in the fight against terrorism, on the universal implementation of international treaties pertaining to human rights, on the difficulty in establishing guilt or responsibility in matters of sexual violence, and on human rights and state sovereignty
YOZO YOKOTA, Sub-Commission Expert, commenting on the working paper by Mr. Kartashkin on “Human rights and State sovereignty”, agreed with the argument that while sovereignty for a State meant supreme power within a territory and independence in international relations, sovereign power of the State both within its territorial boundaries and in the foreign policy arena was not absolute. It should be added that in today’s political theory of democracy, it was understood that sovereignty originated in the people. Sovereignty lay in the people, but its exercise was entrusted to the State. Mr. Kartashkin asserted that State sovereignty was severely restricted in contemporary international law by: a voluntary assumption of international obligation; concluding treaties; joining international organizations; accepting the binding character of certain resolutions and decisions of international organizations; and acceptance of the principle of supremacy of international norms over national legislation. Most of the cases given, however, might rather be ones of the limitation of the use of sovereignty rather than the limitation of sovereignty itself. That was why a State could recover its full sovereignty by withdrawing from treaties or international organizations.
It was argued in the working paper that the characterization of a series of gross and massive violations of human rights, whose perpetration entailed criminal responsibility, as international crimes, had seriously limited State sovereignty. In that connection, Mr. Yokota observed that while in theory that might be correct, in reality it was difficult to enforce, as the serious crimes committed in Timor-Leste in 1999 had clearly demonstrated. He agreed that the efforts of the international community and individual States to secure worldwide respect of fundamental rights and freedoms could not be regarded as interference in internal affairs. However, he disagreed that, under the provision of Article 56 of the Charter, in extreme cases States could take unilateral military action within certain limitations. They had to be careful when they allowed States to resort to use of force even for humanitarian purposes. Finally, he supported recommending to the Council that it appoint a special Rapporteur or Rapporteurs to conduct a study on the topic. Turning to the difficulty of establishing guilt in cases of sexual violence in times of conflict, he thought Ms. Rakotoarisoa’s study was a good one, and that the topic was important, and he hoped that it would be continued under the new Council.
ABDUL SATTAR, Sub-Commission Expert, said that the principles and guidelines on human rights in the context of the fight against terrorism prepared by Ms. Koufa was a timely document and should be approved urgently due to the numerous terrorist acts taking place around the world. The development of the principles and guidelines was a slow process and the author should pursue her work. Some countries had adopted guidelines of assistance to victims of terrorism without going further in dealing with the cause of terrorism. States should be cooperative in adopting the principles and guidelines prepared by Ms. Koufa, and the adoption of some of the elements in the document was urgent.
With regard to the issue of human rights and State sovereignty, the document prepared by Mr. Kartashkin was more than a working paper. He had mentioned the definition of sovereignty from the Western perspective. The Constitution of Pakistan said “sovereignty belonged to God Almighty”. By accepting the UN Charter, States had subjected themselves to the constraints and obligations of that document, and had the obligation to respect human rights within their own jurisdictions. Concerning the report of Mr. Decaux, on the universal implementation of international treaties with regard to human rights, the work had produced concrete results. Regarding Ms. Rakotoarisoa’s work on the difficulty of establishing guilt or responsibility with regard to sexual violence, the paper she had prepared would reaffirm the rights of women in society.
EL-HADJI GUISSÉ, Sub-Commission Expert, commenting on the paper on State sovereignty and human rights, observed that Mr. Kartashkin had separated notions of the State on the one hand, and of sovereignty on the other. But a State was necessarily composed of people, territory, and lastly, sovereignty. Putting the concepts of sovereignty and State in opposition was to harm them both. Sovereignty was what allowed the State to speak on an international level. It was international sovereignty that actually allowed the State to be a legal entity capable of acting in the context of international law, or in relation to other States in the context of an international body such as the United Nations. Sovereignty and human rights, in the context of a State, was a framework for the protection of rights recognized to the individual and which the international community called upon States to respect. He also agreed with Mr. Sattar that sovereignty belonged to the people, who delegated that sovereignty to Government officials working within the framework of a State.
Turning to the paper by Ms. Rakotoarisoa regarding the difficulty of establishing guilt or responsibility in cases of sexual violence against women, Mr. Guissé encouraged the continuation of that work. The very difficulty of obtaining evidence put the lives of the victims in jeopardy. Once sexual violence was proved, what could the victim get, he asked, wondering whether compensation or reparations could be demanded from the State on whose territory the crime was committed, or from the State whose national had committed the crime. It was now being perceived that these were crimes for which there could never be time limits. It was a difficult issue, and it might well be that they were only seeing the start of the problems facing the study of the subject, but he was grateful for the work and hoped that it would continue.
EMMANUEL DECAUX, Sub-Commission Expert, referring to the work done by Mr. Kartashkin, said that it was excellent. Given the large number of sources in the work, the work should be a collective one. There was also a need to avoid politicization of the issue by going back to the past argument of sovereignty. Sovereignty was a two-faced aspect, with one at the domestic and the other at the international level. The legal aspect of sovereignty had been supported by the existence of constitutions and other legal instruments. In France, for example, the State had formulated a means for the flexible exercise of sovereignty. The rejection of the European Union constitution by France had invoked an argument of national sovereignty.
International sovereignty should invoke the whole series of legal instruments. The collective framework for the safeguard of human rights at the international level could not in any way affect the sovereignty of a State. The UN Charter had prevalence over all national laws and did not go against the national sovereignty of a State. The proliferation of UN operations in peace-building did not contravene the sovereignty of the concerned State. The human rights concerns of the international community were legitimate; and concerns directed at a State might not be considered as an intervention in the affairs of a State. Humanitarian interventions might be viewed as the same thing as peace-building operations.
HALIMA EMBAREK WARZAZI, Sub-Commission Expert, regarding Mr. Kartashkin’s study on human rights and State sovereignty, felt that it would have been useful if he could have given an overview of the birth of the concept of humanitarian intervention, which was a French invention. She agreed with Mr. Yokota on the caution necessary in using force to intervene in a State on humanitarian grounds. Any such action should be undertaken within the framework of a Security Council decision. Turning to another report, Mr. Decaux’s dedication and perseverance had created this useful working tool to remind all of the need for universal implementation of the human rights treaties. She agreed that a treaty without a monitoring mechanism became an orphan, with no one to champion its cause, and also agreed that a stepping back of the commitments undertaken at the Vienna Conference was regrettable.
Regarding the preliminary report on the difficulty of establishing guilt or responsibility in cases of sexual violence, Ms. Warzazi agreed that it was extremely difficult to investigate such cases, and, unfortunately, their number was growing. The worst of rape was that, not only did women victims of rape generally not see their aggressors punished, in many countries women themselves then became objects of shame. Governments should study the reason why victims did not come forward. One obvious reason was that the victims had to lodge their complaints to men. Policewomen and women judges should deal with such cases, as they now did in India. Finally, she thanked Ms. Koufa for her work on the draft principles and guidelines on human rights in the context of the fight against terrorism. The Working Group had been extremely effective. She also thanked Barbara Frey for her study presented yesterday. The expert body that followed the Sub-Commission should continue all of the important work she had just commented on.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, said the work done by Ms. Koufa had enabled the Sub-Commission to discuss the issue of terrorism, which was not taken into consideration in the reform process of the United Nations. Consistency should be maintained in dealing with the complex subject of terrorism. Internal jurisprudence and international norms in matters of terrorism should be compatible. With regards to sexual violence, the issue of forced marriage was considered as slavery. Parents, based on tradition, arranged the forced marriage of their children. She did not believe that it was appropriate to use the word “marriage” in the case of forced marriage – it was simply rape. A rape that took place in armed conflict could not be considered a forced marriage but was a crime of sexual violence. Forced marriage should not be considered from the positive aspect of “marriage”.
The issue of primacy of international treaties pertaining to human rights over domestic laws should also be highlighted in matters of sovereignty. When human rights were at stake, the primacy of international humanitarian law should be invoked. International treaties were self-executing within domestic law and the domestic competence of a judge should be stressed in applying them. The issue should be dealt with in a serious manner.
IBRAHIM SALAMA, Sub-Commission Expert, said that in Experts’ working papers the most important thing was to identify gaps and propose action. All the studies had done that, but sometimes the two functions were not sufficiently visible in the conclusions. With regards to the guidelines for human rights in the context of counter-terrorism measures, that was a good example of filling a gap. Such an initiative should be enshrined in the work of the Sub-Commission or in that of the succeeding body of Experts. On the study on sexual violence, the expert had put a finger on a fundamental problem. He was not sure, however, if the practices defined were sufficiently clear to define complementary standards in the law of violence against women in addition to soft law on the subject. For example, the use of policewomen and women judges might just be good practice, but it might be time to suggest that it be included in existing guidelines.
On Mr. Kartashkin’s paper, Mr. Salama said that one of the most important conclusions was that the intrusion of international public law into the domain of human rights law would continue in future. There were some dangers there. Further, collective humanitarian interventions and unilateral interventions should be clearly distinguished. He was not happy with the notion of unilateral interventions being sanctioned under the charter for humanitarian reasons. Could human rights considerations be distinguished from political ones in situations of conflict, he asked. That said, if the human rights component of a conflict could be acted on separately, as had been recently done in Geneva by the Human Rights Council, that was a good thing. On Mr. Decaux’s paper, he observed that States needed to evaluate whether they had the financial means to implement a human rights treaty before they ratified it. He was not saying that if a State were poor then it had an excuse for violating rights, but that if a State was not empowered to implement rights the reasons for that had to be addressed. He agreed with Mr. Decaux that it was necessary to start with the individual, and that each person should be encouraged to seek redress through existing international instruments. He also agreed with the fundamental linkage that should be established between ratification and the universal periodic review mechanism, so that the real reasons of failure to ratify could be understood.
MOHAMED HABIB CHERIF, Sub-Commission Expert, asked Mr. Decaux what were the consequences of reservations made by States in time of ratification of international treaties. Concerning the report of Ms. Rakotoarisoa on the difficulty to establish guilt or responsibility with regard to sexual violence, he said the protection of victims in the case of sexual violence was essential during judicial proceedings. The collection of evidence should take place in a very careful manner because of the negative effects it might produce in the event that the allegation proved to be baseless. If the evidence did not support the claims of the victim, the victim should be protected from the presumed perpetrator who had been incarcerated and freed later on. With regard to the report of Mr. Kartashkin, if the sovereignty of a State was respected, then the need for human rights monitoring would be less, and the respect of the sovereignty of a given State might facilitate dialogue in the promotion of human rights.
FLORIZELLE O’CONNOR, Sub-Commission Expert, congratulated all the colleagues whose papers were being examined. All of the papers were linked, because in reality all human rights were indivisible. With regard to women and sexual offences and proof of guilt, there were tremendous cultural and social attitudes that challenged those who sought to bring justice to the victims. However, there were methods that could and had been used to remove the burden from the victims. Once the report was made the police had the right to proceed with prosecution whether or not the victim wished to go ahead. In such cases, prosecution figures increased dramatically, with less trauma for victims. Another important method was the use of specially trained police, male and female, whose sole priority was to take statements by persons who had been exposed to sexual violence and to provide counselling and ensure prosecution.
In terms of the obligations of States to ratify treaties, Ms. O’Connor thanked Mr. Salama for making the point that it was crucial to find out why States were not fulfilling their reporting obligations, and why they had not signed treaties. It could be a matter of simple bureaucratic ignorance. For many States, signing human rights treaties was good public relations, without concern for the obligations they contained. Sensitisation sessions should be held focusing on the officials responsible, who often were not clear on human rights terminology or capable of writing reports. On sovereignty, in developing countries it was often not possible to draw a line between sovereignty and economic agreements. Turning to the study on human rights in the context of fighting terrorism, she noted that legislation was currently being drafted on terrorism. For that reason, it would be useful if some preliminary signals could be given as to defining who or what was a terrorist.
LALAINA RAKOTOARISOA, Sub-Commission Expert, in concluding remarks to the presentation of her report on the difficulty in establishing guilt or responsibility in matters of sexual violence, said the issue of presumption of innocence was important with regard to the individual on trial. The complicated situation of sexual violence required the protection of the victim and witnesses. DNA testing might be an effective means of collecting evidences but its use might be different from one country to another and might contribute wrongly to a person’s incrimination. She agreed with Ms. Motoc that the use of the term “marriage” with regards to forced marriage was inappropriate.
VLADIMIR KARTASHKIN, Sub-Commission Expert, responding to comments by Experts on his working paper on Human rights and State sovereignty, said that he had been put in a tricky situation: many Experts had spoken on his paper, and they had put forward a range of different views. On the question on whether there was such a thing as justified intervention and non-justified intervention, he believed that any use of force in a humanitarian intervention had to be undertaken within the context of the Security Council.
Responding to a comment that his work had reflected the western point of view, he said that he had simply tried to put forward his views, based on the United Nations Charter and the current system of international agreements. The truth was that his conclusions were controversial, without a doubt. An interesting comment had been made on the limitations of international sovereignty, and that the right to withdraw from a treaty was proof that the limitation was not absolute. In that regard, he noted that the human rights covenants did not provide for a way to withdraw. Even if they had included such a provision, States could not refuse to comply with fundamental international law standards. Regardless of whether a State belonged to a particular convention or not, it did not have the right to commit genocide. One thing that was clear was that there was a need to give consistency to the implementation of international human rights law with regards to State sovereignty. He hoped he would be permitted to submit an expanded working paper to the Human Rights Council on the issues he had not been able to cover in his report so far.
Introduction of the working paper on the accountability of international personnel taking part in peace support operations
FRANCOISE JANE HAMSPON, Sub-Commission Expert, introducing her working paper on the accountability of international personnel taking part in peace support operations (A/HRC/Sub.1/58/CRP3), said that there had been significant developments under human rights law. She also briefly presented her working paper on circumstances in which a party could open fire according to the law of armed conflict/humanitarian law and human rights (A/HRC/Sub.1/58/CRP.5)
On the subject of disappearances, she was delighted that at the first session of the Human Rights Council it had adopted the draft Convention on Enforced Disappearances and she very much hoped that it would be adopted by the General Assembly. In her experience disappearances were, without exception, the worst human rights violation as far as the friends and family of the victim were concerned. While wanting to know why and how a killing had occurred, the family and friends could come to terms with fact of the death. In the case of disappearances, they were trapped forever in a kind of hell. In order for a fact-finding body to be able to reach conclusions, rather than simply to record the views of each side, it was absolutely essential for it to be able to conduct hearings. If the committee to be established for the disappearances convention was to be able to work, it had to be able to interview all the relevant witnesses. There was a provision for in-country visits, but not in the context of urgent measures in individual cases or in the context of an individual petition.
Working paper on the accountability of international personnel taking part in peace support operations
An expanded working paper on the accountability of international personnel taking in peace support operations (A/HRC/Sub.1/58/CRP3), seeks to provide a certain among of information to up-date the previous report. The paper says a significant development has occurred within the UN, where the issue of abuses committed by international personnel has been steadily raising up the agenda. The Secretary-General established a Redesign Panel on the UN International Justice System. The mandate of the Panel was is to propos a model for resolving staff grievances in the UN that is independent, transparent, effective, efficient and adequately resourced and that ensures managerial accountability.
Working paper on the circumstances in which a party can open fire in the law of armed conflict/international humanitarian law and human rights law
A working paper on the circumstances in which a party can open fire in the law of armed conflict/international humanitarian law and human rights law (A/HRC/Sub.1/58/CRP.5), says that the paper, so far as is possible, has been drafted in non-technical terms. It seeks to explain and describe the problem, rather than to solve it. This particular issue would merit a longer and more in depth study. The paper gives case studies on the issue.
Introduction of the working paper on the implementation in practice of the right to an effective remedy for human rights violations
MOHAMED HABIB CHERIF, Sub-Commission Expert, introducing the working paper (A/HRC/Sub.1/58/CRP.4), on the implementation in practice of the right to an effective remedy for human rights violations, said that the subject under discussion had brought up a number of questions, as well as theories and practices. Mr. Decaux had brought up forcefully at a previous meeting the underogable nature of the right to be heard by a judge. In fact, everyone had to find the adequate procedure, the relevant body, or the effective mechanism for bringing their complaint or civil action before a competent tribunal, whatever the nature of the author of the human rights violation, or of the victim or of the person responsible for applying the law. The right to remedy had to be both effective and equitable. All human rights instruments, as well as national instruments, specifically guaranteed that right; but the right to appear before a judge needed to be given concrete form.
Mr. Cherif said that that effectiveness rested not just on the concretization of the right to effective remedy in law, but also on its effective implementation as a practical matter. The right to an effective and equitable remedy required the existence of competent and independent court, a non-discriminatory procedure carried out in public, and guaranteed the right of counsel. There were also certain necessary complementary guarantees, including that the individual had to be informed sufficiently and effectively of their right to a judge. The effective remedy of recourse to a judge was a discouragement to human rights violations.
Working paper on the implementation in practice of the right to an effective remedy for human rights violations
An expanded working paper on the implementation in practice of the right to an effective remedy for human rights violations (A/HRC/Sub.1/58/CRP.4), sets out the reasons why the implementation in practice of the right to an effective remedy plays such an important role in preventing human rights violations and the relationship between this particular right and the broader question of implementation of human rights law. It proposes that the Working Group on the Administration of Justice and the Sub-Commission should request the authority of the Human Rights Council to carry out a study on the implementation in practice of the right to a remedy, on the basis of the working paper produced in 2005.
Report of the Sessional Working Group on the administration of justice
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, introducing the report of the sessional working group on the administration of justice, said the Working Group had met twice during the current session. Participants were of the view that UN personnel should be accountable for their acts during the peacekeeping operations. The working paper proposed that the Human Rights Council should take responsibility in appointing the members of the Group. The applicability of international humanitarian law and international human rights law was stressed. The representative of the Office of the High Commissioner for Human Rights had presented a paper on transitional justice.
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