SUB-COMMISSION CONTINUES DEBATE ON ADMINISTRATION OF JUSTICE; VIEWS REPORTS ON DEMOCRACY AND ADMINISTRATION OF JUSTICE

Sub-Commission on the Promotion and
Protection of Human Rights
55th session
7 August 2003
Morning




Non-Governmental Organizations Decry
Administration of Justice by Military Tribunals




The Sub-Commission on the Promotion and Protection of Human Rights this morning continued its debate on the administration of justice, rule of law and democracy, reviewing reports on the consolidation of democracy and the work of the Working Group on the administration of justice and hearing a number of non-governmental organizations decrying the administration of justice by military tribunals concerning civilians.
Sub-Commission Expert Manuel Rodriguez-Cuadros, introducing his study on the consolidation of democracy, said that there were inherent problems in trying to determine democracy in unequivocal terms. In political science there were different ways of thinking about the subject; however, many dictatorial States described themselves as being democratic. An international regime was being established, through regional initiatives, on the protection and promotion of democracy. There was also a growing tendency to link the legitimacy of a democracy to human rights, and all sectors of society should be involved in this movement. He said that the time had come to propose a new type of international cooperation which would allow for new financial mechanisms that would strengthen democracies.
Briefing the Sub-Commission on the work of the Working Group on the administration of justice was its Chairperson Antoanella-Iulia Motoc who said that during the two sessions of the group, the issue of privatization of prisons, the right to life, capital punishment, criminal justice, the obligation of appeal, the mechanisms of reconciliation, material evidence and sexual discrimination had been dealt with. The agenda item for the next session had also been discussed and the collaboration of academicians and representatives of non-governmental organizations (NGOs) in the work of the group was suggested.
Also taking the floor were a number of NGOs whose representatives expressed concern about judgments passed by military tribunals on civilians. They said that the judgment of civilians by military courts violated the principle of separation of state powers, which was essential to the sound functioning of democracy. They also noted that military personnel and police who committed grave human rights violations and were then judged by military tribunals, on many occasions, ended up with impunity.
The following Sub-Commission Experts took the floor: Emmanuel Decaux, El Hadji Guisse, Soo Gil Park, Florizelle O’Connor and David Wiessbrodt.
The representatives of the following non-governmental organizations made statements: International Commission of Jurists; World Peace Council; European Union of Public Relations with the Afro-Asian Peoples’ Solidarity Organization; Himalayan Research and Cultural Foundation; Interfaith International; Soka Gakkai International (joint statement); War Resisters International; Franciscans International (joint statement);International Fellowship of Reconciliation, speaking on behalf of Japan Fellowship of Reconciliation; Voluntary Action Network India; Pax Romana; International League for the Rights and Liberation of Peoples; World Federation of Trade Unions; International Institute for Peace; ATLAS-Association tunisienne pour l’auto-developpment et solidarite; International Federation of Human Rights Leagues; International Young Catholic Students; and International Movement for Fraternal Union Among Races and Peoples.
When the Sub-Commission reconvenes at 3 p.m., it will conclude its debate on the administration of justice and start its review of economic, social and cultural rights.

Statements
EMMANUEL DECAUX, Sub-Commission Expert, said that many non-governmental organizations and representatives of governments had approached him with regard to his report on the administration of justice. There was a great danger of denegation of justice, and the militarization of the administration of justice was a tendency that should be discouraged.
EL HADJI GUISSE, Sub-Commission Expert, said he wanted to react to a statement by a non-governmental organization on the death penalty. He subscribed to everything the organization had said about the death penalty, about its development and the fact that there had been an increase in summary executions. The death penalty had become more barbarous and was carried out without any control. Of particular concern was the increase in the death penalty being carried out on minors. This was particularly so for minors of minority groups or racial minority groups. The Committee on the Rights of the Child had a role to play in this regard, but did not have the means to fully monitor all countries in this regard. The non-governmental organization that had spoken had raised interesting points, and he encouraged their important work. In conclusion, he appealed to Experts to consider what had been said so that the Sub-Commission could do its utmost to at least limit the exercise of the death penalty.
HASSIBA HADJ SAHRAOUI, of International Commission of Jurists, said that she congratulated the Special Rapporteur Mr. Decaux for his excellent report on the issue of the administration of justice by the military tribunals. For many years, the administration of justice by military courts had been a source of concern within the universal and regional human rights protection systems. Experience had shown that when military tribunals handed down judgements in cases of grave human rights violations committed by members of the military or the police, they resulted in impunity. The military tribunals that judged civilians constituted a denegation of the right of an independent and impartial court and the right to be judged by an ordinary court. In some countries, children were judged by military courts, in contradiction with the relevant international conventions relating to the administration of justice for minors. In other countries, military courts repressed the exercise of the universally recognized right to conscientious objection. Mostly, the military tribunals transgressed the principle of separation of power, which was a sine qua non to the sound administration of justice.
KADIR JATOI, of World Peace Council, said that sadly, the imposition of Pakistan’s federal powers on the Sindh Province exemplified poor administration of justice, partial and erratic rule of law and lack of democracy. The partiality of Pakistan’s Constitution had created, illustrated and exacerbated the divisions between the country’s Muslim and non-Muslim communities. In the Constitution, citizens were identified and governed based on their religious affiliations. This system affected the election process and the appointment of federal and provincial officers. Pakistan’s military had frequently espoused policies that appealed to Islamic religious groups in order to appease powerful clerics, threatening fundamentalist factions, and to gain popular support from the Muslim majority. Moreover, the military had often patronized and implicitly cooperated with religious extremist groups in order to weaken the influence of those in favour of democracy and free elections within the country, thus further excluding minority citizens from the Pakistani political arena. The need for institutional reform was evident. The Government must ensure the political rights of all candidates, regardless of their party affiliation, and allow international and domestic election observers unfettered and unconditional access to polling stations.
MOHAMED MUMTAZ KHAN, of European Union of Public Relations, speaking on behalf of Afro-Asian Peoples' Solidarity Organization, said that across the world the continuum of democracy was spreading, with the rule of law and a sound system of administration of justice as its central pillars. The spread of democracy brought with it new hopes of a tangible improvement in the quality of life for millions of people across the globe. Unfortunately, there were still countries which stubbornly tried to buck the trend. Their rulers continued to stifle political freedoms, undermine the rule of law, browbeat the judiciary into submission and perpetuate the twin tragedies of poverty and social inequality. The case of Pakistan, the country that had colonized the territories of Pakistan-occupied Kashmir and Gilgit-Baltistan and for the past fifty-five years, was one such country.
BILAL AHMAD KHAN, of Himalayan Research and Cultural Foundation, said the past experience of more than five and a half decades had established the fact that democracy remained the most effective vehicle to promote and safeguard human rights. In fact, democracy was the soul and substance of human rights norms, instruments and conventions. Merely claiming to be a democracy did not qualify a State to be a democracy. The executive, judiciary and legislature were the important pillars of a democratic order. In order to gauge the strength of democracy, their role and power needed to be closely scrutinized. Ironically, in some cases it was the military dictators in uniform who headed and managed the executive of state and yet claimed to be heading a democratic system. Such manipulation introduced sharp contradictions in which desperate violent extremist groups acquired autonomy of their own and promoted violence, chaos and extremism. In such societies the rule of law became a casualty. Removing distortions in democracies and dismantling the dictatorial army regimes deserved earnest attention and must be given topmost priority by the international community.
AMBREEN HISBANI, of Interfaith International, referring to the administration of justice in Pakistan, said that Mr. Sharma was a committed Sindhi human rights activist had been associated with non-governmental organizations and continued to advocate for human rights of minorities in the country. He was arrested without any warrant by the military while he was travelling in Sindhi in March 2003. The Pakistani army had neither informed the detainee’s family nor the civil court of the country on what grounds he had been arrested. After more than three months of immense pressure from media and after the intervention of the High Court of Sindhi, the Judge Advocate General branch of Pakistani army had submitted a sketchy letter saying that he had been arrested under the Official Secrets Act and that he was to be court-martialled. He called countries that had good relations with Pakistan to intervene in favour of Mr. Sharma.
KAZUNARI FUJII , of Soka Gakkai International in joint statement with several NGOs*, said human rights education had a key role to play in promoting good governance and the rule of law. This helped to ensure that international human rights standards were respected and implemented in every domain of governance in all nations. Concerning the follow-up to the Decade for Human Rights Education, all input received by the Office of the High Commissioner strongly supported the idea of a second decade, considering the fact that human rights education was a long-term process. Many actors had also stressed the importance of establishing a voluntary fund for human rights education. Another important issue of international monitoring mechanisms for human rights education activities was still to be addressed. Although the potential of existing monitoring mechanisms for advancing human rights education, such as the Special Rapporteur on the right to education and the Treaty Bodies, had been acknowledged and recommendations to including human rights education on their agendas had been made, these mechanisms had achieved little results since their attention had not been sufficiently focused on this topic. Surprisingly, it still remained unclear to many governments that the promotion of human rights education was an obligation under existing instruments. The international community must focus on the promotion of specific human rights education issues and the implementation of measurable targets over periods of two to three years rather than on a comprehensive agenda which, so far, had proven unsuccessful, perhaps because its scope was too broad.
MICHEL MONOD, of War Resisters International, said that since the recognition of the rights of conscientious objectors to military services, many States had forced objectors to appear before military tribunals. They had established a civilian commission in order to examine the motivations of the objectors and put in place a civilian service. Many of the members of the Council of Europe had adopted laws in that line. Many countries were reluctant to recognize that conscientious objectors were civilians with the right of freedom of thought, conscience and religion. They said that they could be judged by military tribunals and did not provide any civilian service for them.
CHRIS DUCKETT, of Franciscans International, in conjunction with Dominicans for Peace and Franciscans International Bolivia, condemned the unfair and irregular proceedings in the trial of Guillermo Roelants, President of the Tierra S.A. Social Project and his co-workers. They had been charged with the deviation of 8,000 to 20,000 tons of sulphuric acid for the use in the processing of cocaine in Chapare – a tropical region more than 1,500 kilometres from the boric acid plant in the mountainous Apacheta, with poor or non-existent roads in between. The trial had been characterized by a curtailment of the rights of the defense and the right of due process, including the complete absence of material evidence from the prosecution. The Sub-Commission must urge the Government of Bolivia to respect the right to a fair trail, in line with its obligations pursuant to international human rights norms and standards.
JONATHAN SISSON, of International Fellowship of Reconciliation, speaking on behalf of Japan Fellowship of Reconciliation, said that with respect to the issue of military sexual slavery during the Second World War, one was faced with a situation of de facto impunity. The Japanese Government had neglected its obligations as a State to investigate and sanction those responsible for human rights violations on a massive scale. It claimed that multi-lateral and bilateral treaties prevented it from providing state compensation to the victims. Civil and political groups within Japan itself were now challenging the situation of de facto impunity. There was a need for guidelines on criminal proceedings pertaining to sexual violence in the context of armed conflict in general terms both with respect to the obligations of State authorities to prosecute such crimes and with regard to the question of reparation. Guidelines were specifically needed for the investigation and prosecution of those crimes.
SHEWLI KUMAR, of Voluntary Action Network India, said civil society organizations affirmed and reiterated their belief in the democratic values and had committed themselves to uphold the principles laid out in the international instruments of human rights. It was highlighted that the Supreme Court of India, the highest order in the judicial system, had time and time again proved to be a high thinking, proactive body, utilizing its powers effectively to ensure social justice and enforcement of fundamental rights. All legislation and executive actions, whether federal or state, were subject to judicial review. This had given the civil society organization an opportunity to utlize the judicial system on its behalf. The judiciary was performing its role effectively, but at the same time all these efforts had not been able to accomplish completely what it had set out to do. Much needed to be done by the State in terms of implementation of affirmative programmes and laws. Discrimination still persisted at several arenas against women, dalits and even children of the marginalized. No democracy could be successful in promoting human rights unless the people imbibed and practiced the democratic values and principles in letter and in spirit. Civil society organizations could play a major role in educating, creating awareness, changing mindsets and advocating for the cause of the marginalized.
BEATRIZ PINTER BAU, of Pax Romana, said that in the process of the promotion and consolidation of democracy, there should be a close relationship between human rights, democracy and the rule of law. It was impossible to effectively promote democracy as recognized in the United Nations resolution 1999/57 of 27 April without the principle of the separation of State powers that guaranteed the protection of human rights. In the exercise of democracy, the separation of the three branches of State powers should be real. Pax Romana considered that in the effort to promote and consolidate democracy, the existence of an independent judicial system was crucial. Such a situation would prevent the intervention of the legislative and executive branches in the work of the judiciary, and human rights would be protected. In a country where the executive intervened in the function of the judiciary, human rights were not respected, and discrimination in the justice system would be apparent. The violation of the independence of the judiciary by the executive also violated the relevant UN instruments on the issue.
GHISLAIN PATRICK LESSENE, of International League for the Rights and Liberation of peoples, said there was a need to highlight access to remedies. In spite of the ratification of international treaties and their implementation, there was a denial of this right due to the unwillingness of States to provide effective remedy. The 700 detainees in Guantanamo Bay had not been able to benefit from any type of legal status. Now the Defense Department had created unilateral military tribunals to deal with these people. The procedures of these tribunals were in complete discord with international human rights law. The detainees had no right to defend themselves and had not even been informed as to why they were detained. Another case was that of the families of those who had disappeared in Western Sahara. The High Commissioner had highlighted this problem. States must facilitate access to effective remedies, guarantee the training of judges and prosecutors, and establish periodic reports on the evolution of justice. Non-government organizations must ensure that they came to the assistance of victims, not just in urban environments, but also in more rural areas, particularly in the field of human rights education. Appropriate measures must be taken in order to guarantee better administration of justice, the bedrock of democracy.
REFAQAT ALI KHAN, of World Federation of Trade Unions, said that the international human rights community had always believed that the preservation of human rights was possible only in an environment where citizens felt secure; were treated well; and, most important of all, were given the opportunity and the means to fashion their destinies. The UN, in its Charter and deliberations, had repeatedly defined the fundamental freedoms applicable to human beings who were all deemed to be born free and equal. Mankind’s experience with diverse forms of government had shown that it was only under democratic systems that those fundamental rights could be guaranteed. The prerequisites for free and impartial administration of justice was the creation of legal institutions and constitutional structures that embodied the basic principles of the UN Charter that all citizens would be treated equally. Discrimination, wherever it existed on grounds of gender, religion, ethnicity, race or creed, denied individuals and groups the right of equal treatment before the law.
SHANNAZ SULTAN ALI, of International Institute for Peace, said that despite efforts of the United Nations and other human rights organizations in promoting fundamental rights for people, millions of people were denied their basic rights in various parts of the world. People were denied democratic and economic rights which led to exploitation, primary target of which was generally women and children. People in such areas suffered from other forms of misadministration and from the lack of basic facilities, and local people believed that instead of tackling basic issues, the authorities stirred up sectarian violence in order to divert attention from basic needs. At one time, the State of Jammu and Kashmir had been a prime example for religious tolerance and co-existence; and now religious extremism was on the increase in various parts of the State. This had undermined the rule of law and increased suffering of the people. This was a direct result of policies of those who did not want to see peace and stability in the State.
MONCEF BALTI, of ATLAS - Association Tunisienne pour l'Auto-Developpement et la Solidarite, said that for 13 years, his organization had been realizing projects and implementing actions in favour of the rural population of Tunisia in order to fight against poverty, illiteracy, and all forms of discrimination and social exclusion. The association was non-profit making organization and endeavoured for the promotion and protection of human rights. It also struggled to ensure that each individual enjoyed the human rights guaranteed by the State. The administration of justice was also one of the priorities that the association was taking into consideration in its work. The association was encouraging the independence of the judiciary and the access of individuals to impartial courts.
ANTOINE MADELIN, of International Federation of Human Rights Leagues, said the creation of special military courts by the United States to judge the detainees of Guatanamo Bay was a matter of serious concern. International human rights law had been violated since their arrest. These detainees were not able to enjoy any of the provisions that the United States citizens enjoyed with regard to the administration of justice. Concern was also raised about the declaration of the state of emergency in Egypt, which violated several basic principles such as a fair trial and the independence of the judiciary. At the same time, the Federation welcomed the coming into force of the International Criminal Court, its ratification by a number of States, and its decision to focus long overdue attention to the situation in the Democratic Republic of the Congo. However, the United States by concluding bilateral immunity deals was going against the international spirit through which the International Criminal Court had been established. The United States had decided to suspend military and economic assistance to several countries in order to put pressure on them to agree to these bilateral immunity deals. The Federation also deplored that Belgium had changed its important human rights legislation on impunity as a result of pressure from the United States.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert and Chairperson of the Working Group on the administration of justice, said that during the two meetings of the Working Group, the issues of privatization of prisons, the right to life, capital punishment, criminal justice, the obligation of appeal, the mechanisms of reconciliation, material evidence and sexual discrimination had been dealt with. The issue of the International Criminal Justice Court had also been discussed. During the meetings, Mr, Guisse had remarked that the movement for the abolishment of the death penalty had been more and more intense throughout the world, while the countries that applied the death penalty continued their practice. The Working Group had been concerned about the imposition of the death penalty by military tribunals against civilians. Concerns had also been expressed about extra-judicial killings in many countries. She said that Ms. Hampson had suggested that guidelines should be set forth on the investigation and judgment in time of armed conflicts. The agenda item for the next session had also been discussed and the collaboration of academicians and representatives of non-governmental organizations in the work of the group was suggested.
MANUEL RODRIGUEZ-CUADROS, Sub-Commission Expert, orally introduced his study on the consolidation of democracy, saying that there were inherent problems in trying to determine democracy in unequivocal terms. In political science there were difference ways of thinking about the subject. In addition, many dictatorial states described themselves as being democratic. He had therefore gone around the definition issues and instead focused on elements contained within democracy. The Commission had approved a resolution in which a relationship was established on the elements which needed to be defined in a democratic regime. Some of these elements included the existence of a human rights regime; the holding of periodic, free and impartial elections; a pluralist system of political parties; the independence of the judiciary; and the separation of powers. These elements were the reaffirmation of the legal opinion which consisted of determining the existence or non-existence of a democratic regime. The legitimacy of the State, a derivation of popular support of its citizens, depended on the granting of rights and freedoms, at the same time as guaranteeing constitutional rights. This was why the non-interference of the States in fundamental freedoms defined the relationship of a democratic State with its citizens.
An international regime was being established, through regional initiatives, on the protection and promotion of democracy. There was also a growing tendency to link the legitimacy of a democracy to human rights, and all sectors of society must be involved in this movement. Democracy as a system of government was not only a legal text; it had to do with social cohesion, popular participation and civil society. In the last 20 years democracy had expanded across the world. However in order to maintain their democracy they must provide economic policies that satisfied the basic needs of the people. It was ironic that with democracies expanding, as well as globalization, inequality had also increased in the world. Inequality between peoples and countries continued to increase. The international community must become aware that the maintenance of democracy was dependent on the provision of economic, social and cultural rights. It was therefore necessary to change certain aspects of the international financial system and economic order. The time had come to propose a new type of international cooperation which allowed for new financial mechanisms that would strengthen democracies.
EL HADJI GUISSE, Sub-Commission Expert, said that when Mr. Cuadros was asked to deal with the issue of democratic and economic rights, he had presented his study which attempted to study the relationship between poverty and human rights. He said that the gap between the poor and the rich, and between the rich and super-rich should be bridged. Also, the gap between the industrial and developing countries should continue to be narrowed.
SOO GIL PARK, Sub-Commission Expert, said Mr. Manuel Rodriguez-Cuadros had shown the interrelationship between democracy, human rights and the rule of law. Indeed, the link between democracy and human rights was not limited to civil and political rights, but must also cover economic, social and cultural rights. The provision of fair income distribution was fundamental to the legitimacy of a democratic state. The persistence of poverty and marginalization were the perils that needed to be overcome to consolidate democracy.
FLORIZELLE O’CONNOR, Sub-Commission Expert, said she endorsed the comments made by the previous speakers. The enjoyment of economic, social and cultural rights by people in the developing countries was a mockery.
DAVID WEISSBRODT, Sub-Commission Expert, suggested a useful economic model for understanding these issues. The market system was an effective system for increasing prosperity. On the other hand, the best ways to achieve it involved some fundamental conditions such as the rule of law, a peaceful society, and respect for human rights and democracy. Once these conditions had been met, one could benefit from the market system. Transfers were also needed, such as a social system and public goods. There was a part for all actors within the international community, including financial institutions, international organizations, and the human rights community. This cycle must also exist on the national level.
MANUEL RODRIGUEZ-CUADROS, Sub-Commission Expert, said it was evident that democracy was essentially, and above all, an organizational structure of the States and the relationship between those who governed and those who were governed. Human rights doctrine was based on the principle that citizens gave power to those who governed provided that there was no infringement on the exercise of their fundamental rights. However, democracy gave liberties, but not necessarily food, employment opportunities and income distribution. This situation must be changed but it could only be changed on the international level. This current international inequality could be seen in specific examples such as the trade negotiations on subsidies. Another case was external financing and the practices of the International Monetary Fund which led to a saturation of external debt levels. One needed to be creative in the market so that all investments became a trust as opposed to a loan. The limits of democratic development had been reached and a new consensus needed to be reached on the fight against poverty.
RUKSHAN FERNANDO, of International Young Catholic Students, raised the issue of the challenges faced by human rights defenders in obtaining redress through national justice systems. In many instances, state officials, especially the police and security forces, regarded human rights defenders as persons who obstructed their work and they were subjected to harassment. In such situations, the human rights defenders had to fall back on the justice system, but unfortunately, in many countries, the wheels of the justice system too seemed to discriminate against human rights defenders. To illustrate this point, the organization described a situation in Sri Lanka regarding Mr. Fernando, a human rights defender, which could only be described as a human rights violation on the part of the Sri Lankan justice system. Mr. Fernando remained a prisoner to date. Since all domestic remedies had been exhausted, the Sub-Commission was requested to urge all relevant United Nations bodies and agencies to prevail upon the Sri Lankan Government to ensure that justice was done to Mr. Fernando and that the credibility of the Supreme Court and Justice System in Sri Lanka was restored.
PAUL BEERSMAN, of International Movement for Fraternal Union Among Races and Peoples, said that since the end of 1989 a spiral of violence had erupted in Jammu and Kashmir resulting in endless suffering of the Kashmiris. Both the security forces and militant organizations fighting for independence and for access to Pakistan or Jihad had committed grave violations of international human rights and humanitarian law. The criminal activities of the militant groups were another example of how difficult it was to control armed groups outside the parameters of respect for civil society, democracy and its laws. The Association urged the Governments of India and Pakistan to respect their mutual commitments and to resume bilateral and meaningful negotiations over Jammu and Kashmir without delay. India and Pakistan would not achieve real security until they resumed dialogue to resolve their tensions. All parties concerned, including the Kashmiri leadership, must respond to the desire of the common man for peace and a chance to earn his livelihood in peace. The Kashmiris had the right to enjoy fully all their human rights, including administration of justice, rule of law and democracy, without being the victim of terrorists acting on racist or religious motivation.




* *** *
* Joint statement on behalf of: World Federation of Methodist and Uniting Church Women; Pax Romana; International Organization for the Development of Freedom of Education; International Movement Against All Forms of Discrimination and Racism; World Federation of United Nations Association; and International Association for Religious Freedom.



* *** *