SUB-COMMISSION DISCUSSES REPORTS ON CRIMES OF SEXUAL VIOLENCE, IMPLEMENTATION OF TREATIES, WOMEN IN PRISON

10 August 2004


General Debate on the Administration of Justice,
Rule of Law and Democracy Continues


The Sub-Commission on the Promotion and Protection of Human Rights this afternoon discussed reports on the difficulties of establishing guilt with regard to crimes of sexual violence, the universal implementation of international human rights treaties, and the issue of women in prison as it continued with its general debate on the administration of justice, rule of law and democracy.

Lalaina Rakotoarisoa, Sub-Commission Expert, presented her expanded working paper on the difficulties of establishing guilt and/or responsibilities with regard to crimes of sexual violence, saying that the issue was extremely complex to investigate, given that the allegations were based on the statements of the presumed victim. It was rare that other elements corroborated the words of the victim. In recent years, the number of victims of sexual violence had increased both in times of peace and conflict.

Emmanuel Decaux, Sub-Commission Expert, introducing his preliminary report on the universal implementation of international human rights treaties, said that his study had focused on theoretical and practical aspects of international law. Although his work was based on empirical aspects, it did not ignore the legal point of view under international law.

Florizelle O’Connor, Sub-Commission Expert, also presented her working paper on the issue of women in prison, saying that her paper had covered rights of children whose mothers were in prison. Those who were put in prisons should enjoy their basic rights and should be protected from any abuse, including from sexual violence; and the hygienic conditions of the prisoners should also be given attention.

The following Sub-Commission Experts or Alternate Experts spoke in the debate after the presentation of the reports: El-Hadji Guissé, Yuko Hayashi, Mohamed Habib Cherif, Françoise Jane Hampson, Vladimir Kartashkin, Miguel Alfonso Martinez, Antoanella-Iulia Motoc, Lee A. Casey, and Ibrahim Salama.

Friends World Committee for Consultation (Quakers) also spoke.

Also this afternoon, Ruth Hahn-Weinert, Chief of the Users’Services Section of the United Nations Office at Geneva Library, briefed the Sub-Commission on the facilities and services that the library offered.

Non-governmental organizations contributing statements in the general debate on the administration of justice, rule of law and democracy were: Agir ensemble pour les droits de l’homme (speaking on behalf of World Organization against Torture); International Federation of Human Rights Leagues; Friends World Committee for Consultation (Quakers); Transnational Radical Party; International Commission of Jurists; Franciscans International; Interfaith International; Friends World Committee for Consultation; Minnesota Advocates for Human Rights; International Organization for the Elimination of all Forms of Racial Discrimination and International Educational Development.

When the Sub-Commission reconvenes at 10 a.m. on Wednesday, 11 August, it will conclude its general discussion on the administration of justice, rule of law and democracy. In the afternoon, it will continue to take action on draft resolutions and decisions.

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

Under this agenda item, the Sub-Commission has before it (E/CN.4/Sub.2/2004/005) which is a note by the Secretariat on discrimination in the criminal justice system, concerning the fact that the Special Rapporteur Leila Zerrougui, who had been charged by the Sub-Commission to conduct a detailed study on discrimination in the criminal justice system with a view to determining the most effective means of ensuring equal treatment in the criminal justice system for all persons without discrimination, particularly vulnerable persons, and to present a progress report at the fifty-sixth session, was not able to attend the fifty-sixth session and therefore could not present the progress report.

There is a document (E/CN.4/Sub.2/2004/007) which is a report by Sub-Commission Expert Emmanuel Decaux on the administration of justice through military tribunals. It contains principles covering the administration of justice through military tribunals, including the establishment of military tribunals by the constitution of the law, functional authority of military courts, trial of persons accused of serious human rights violations, limitations on military secrecy, guarantee of habeas corpus, right to a competent, independent and impartial tribunal, public nature of hearings, guaranteeing the rights of the defence and the right to a just and fair trial, access of victims to proceedings, recourse procedures in the ordinary courts, due obedience and responsibility of the superior, conscientious objection to military service, incompetence of military tribunals to try children and minors under the age of 18, military prison regime, application of humanitarian law, non-imposition of the death penalty, and review of codes of military justice. The report also contains recommendations.

There is a document (E/CN.4/Sub.2/2004/009), which is a working paper by Sub-Commission Expert Florizelle O’Connor on the issue of women in prison. The working paper finds that little consideration has been given to the different needs and problems of imprisoned women, relative to those of men. Women constitute a relatively small proportion of the prison population worldwide, but in some States this percentage is increasing. The document also examines the situation of over-crowding, which existed in many States, and its consequences; the impact on the families of women in prison, and issues relating to the conditions under which family visits take place; the issue of children living with their mothers in prisons, and different practices on this subject; and the subject of childcare in prisons for women. In preliminary conclusions, the working paper finds that the situation of women in prisons demonstrates gross violations of almost all accepted human rights principles. It recommends that non-custodial options for women be more extensively considered by States.

There is a document (E/CN.4/Sub.2/2004/010) which is a note by the secretariat on the final working paper by Manuel Rodriguez Cuadros on measures provided in the various international human rights instruments for the promotion and consolidation of democracy which indicates that the report will be submitted at the fifty-sixth session.

There is a document (E/CN.4/Sub.2/2004/011) which is an expanded working paper by Sub-Commission Expert Lalaina Rakotoarisoa on the difficulties of establishing guilt and/or responsibilities with regard to crimes of sexual violence. The working paper elaborates on the forms and causes of sexual violence and abuse, focusing on the increase in the number of investigations and relevant statements by children, female victims and witnesses of sexual abuse, taking into account the special needs of children, women, witnesses and survivors. The report focuses on the gathering of evidence, including forensic evidence, rules of evidence, the attitude of the investigating authorities and other things. The paper concludes that the process of gathering evidence regarding this crime should be reviewed and judicial systems harmonized, taking into account best practices. It underlines the need for a strengthening of international justice cooperation, specifically in the field of extraterritorial judicial competence and cyber criminality. It also recommends better coordination among United Nations bodies with a view to increasing efficiency in the fight against sexual violence and abuse.

There is a document (E/CN.4/Sub.2/2004/012), which is a working paper by Sub-Commission Expert Francoise Jane Hampson on the criminalisation, investigation and prosecution of acts of serious sexual violence. The paper addresses the definition of the relevant international crimes and charging practice. Through extensive reference to international law and jurisprudence, the paper describes under what circumstances rape, sexual assault and other forms of sexual violence may constitute torture, a crime against humanity, a war crime, or genocide. In its conclusions, the paper points out that there seems to be two issues: the first the way in which national criminal legal systems handle issues of sexual violence generally; and the second which relates specifically to international crimes within the jurisdiction of the ICC.

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

GAELLE CARAYON, of Agir Ensemble pour les Droits de l'Homme, speaking on behalf of International Association against Torture, said that 10 years after the acts of genocide in which one million persons died and three million Rwandans fled the country, President Paul Kagamé had reinforced his totalitarian regime in order to reign over the people through intimidation and terror. The country’s parliament, which obeyed the orders of the executive, had recently recommended the dissolution of independent and democratic organizations. The parliament had demanded the Government to inflict exemplary sanctions on the leaders of those organizations and other religious leaders. Since the President took power, he had not hesitated in eliminating, assassinating and detaining his former companions in the struggle. At the same time, he was giving responsibility to the perpetrators of genocide who had been allies to his regime.



GEMMA ZANELLATO, of International Federation of Human Rights Leagues, said with regard to the International Criminal Court, there was satisfaction that the United States had withdrawn its request to renew the resolution of the Security Council which would have exempted American soldiers from its purview, but the bilateral immunity agreements between the United States and third party States should be borne in mind, as the United States was guaranteeing that its soldiers would not be judged for the most heinous crimes, which gave its soldiers immunity from the Court. There was concern for the means used by the Congolese authorities for the impeding of the issue of the “disappeared of the Beach”. It appeared to be becoming more and more difficult for those who had escaped from genocides to find asylum in France.

Presentation of Working Paper on Difficulties of Establishing Guilt and/or Responsibilities with Regard to Crimes of Sexual Violence

LALAINA RAKOTOARISOA (Sub-Commission Expert), presenting her expanded working paper on the difficulties of establishing guilt and/or responsibilities with regard to crimes of sexual violence, said it was extremely complex to investigate sexual violence, given that the allegations were based on the statements of the presumed victim. It was rare that other elements corroborated the words of the victims. The proper corps of the victim was the scene of the sexual violence, and it was rare to find a witness. One should not lose sight that the lack of proof would directly lead to impunity of the perpetrator of sexual violence, and as the same time the victims would risk her right to reparation to the prejudice she was subjected to. The failure in the search for a solution in redressing the situation could be transformed in a deprivation of rights of the victim. In addition, the burden of proof depended on the intimate conviction of the judge.

The number of victims of sexual violence has not stopped increasing both in times of peace and conflict. Even in times of peace, sexual violence could take place as a way to humiliate a specific group. All sexual violence, whatever form it followed, constituted a violation of the dignity and physical integrity of the victim. Even a husband who did not have the permission of his wife to have sex might violate the right of his wife.

Statements on the Working Paper on Difficulties of Establishing Guilt and/or Responsibilities with Regard to Crimes of Sexual Violence

EL-HADJI GUISSE (Sub-Commission Expert) said that those guilty of sexual violence should never be given charge of a minor or one who was mentally handicapped. It was up to the perpetrator to prove that he was not guilty of committing a crime against the accuser. In many countries there was much corruption, and many sexually violent acts were not punished as the perpetrators had enough money to pay a law enforcement agent for cooperation silence, and this allowed some to enjoy impunity. The victims of sexual violence were not free from this process of purchase of the consciences of those who were in charge of bringing the truth to light, and the independence of judges was often undermined by those in charge of overseeing his career. Impunity was gaining ground in many countries.

Married women were potential victims of sexual violence perpetrated by their own husbands. Women went into marriage possessing their own body, and remaining free of that body, and the body was not given over to the man, as that would be akin to slavery. Women could be victims of civil law in this respect. A woman was not an object, but a partner with whom to share life when consenting to do so. The classification of sexual violence in criminal law which set standards for describing offences varied from one country to another. There should be an international effort towards uniformising legislation, with general impersonal norms to serve as a basis for all criminalisation of sexual violence in all countries to be developed by the United Nations.


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.

Mohamed Habib CHERIF (Sub-Commission Expert) said sexual violence was in some cases used as a weapon, a means to intimidate and dominate, particularly in situations of armed conflict, and this set international mechanisms and humanitarian law to naught. The problems of establishing guilt and responsibility in cases of sexual violence were again surfacing, but new DNA tests for those suspected of crimes and psychological tests on the credibility of victims were new means of determining claims. The right of women to control their bodies was an indisputable right, but it should be approached with care in the context of family life, as in the context of marital rape; it was a sensitive issue, both religiously and morally.

FRANCOISE JANE HAMPTON (Sub-Commission Expert) said that rape as a tool of war was not a new phenomenon, and did not start in Bosnia and Herzegovina.

RACHEL BRETT, of Friends World Committee for Consultation - Quakers, said this was an issue that emerged from research on women in prison. There was a need for prison systems that did not lend themselves to abuse of incarcerated women. Prison systems should be designed in a way to ensure stopping abuse. It was questionable what constituted consent in such circumstances. Because they were convicted criminals, they were less likely to be believed. Such sexual abuse was directly linked to HIV/AIDS infection and other sexual diseases, as well as pregnancy. Many female prisoners already had a history of sexual violence. A particular problem was, in many countries, a tendency to detain women who were victims in order to ensure their appearance in court. This should be examined, as it created a potential for further abuse and could in itself form discrimination on several different levels.

Presentation of Report on Universal Implementation of International Human Rights Treaties

EMMANUEL DECAUX (Sub-Commission Expert) presented his preliminary report on the universal implementation of international human rights treaties by saying that his study had focused on theoretical and practical aspects of international law and the activities of the Commission on Human Rights. It had also taken into consideration the debate taking place in the Sub-Commission on the issue. Although his work was based on empirical aspect, the work did not ignore the legal point of view under international law. The notion of universality had been seen in light with the jurisprudence of the International Criminal Court or the practices of other international organizations. The information he obtained had been dispersed in theoretical form throughout the report. He said that the notion of a core document or a selection of basic treaties would be arbitrary and dangerous to practice while leaving aside other important instruments. One could ask about the consequences of universal ratification. In the future study, the dynamism of universal ratification should be considered.

Statements on Report on Universal Implementation of International Human Rights Treaties

VLADIMIR KARTASHKIN (Sub-Commission Expert) said considering that the report tackled a complex issue, it was very satisfying. On the one hand it examined the theory of international law, and on the second hand it dealt with national implementation; another important and difficult task was how to achieve universality for international treaties, how to get them ratified and implemented. A number of important theoretical matters were raised which provided a fine basis for the rest of the work remaining to be done. The first section of the report dealt with the scope of the study, and the concept of universality of international treaties. The views existing already in international law on this were reflected, but the opinion of the Special Rapporteur himself needed to be clarified, in, for example, when did an international treaty become binding on all States, including those who were not party to the treaty. Treaties were binding on those who were party, and for those who were not it was binding because the norms of the treaty became customary international law. Such an approach was logical, and it was logical to expect States to comply with international treaties. The basic criterion for compliance was the establishment of a treaty-monitoring body.

The task of drawing specific conclusions, not just on ratification but also on universal ratification and the universal implementation of these treaties remained. Regarding practical issues, there was a need to examine how monitoring and control mechanisms worked, as well as the issue of what to do with States that were not party to treaties and did not come under the United Nations monitoring process. A very complex task had been undertaken, which would become ever more complex, and every success was wished to the author of the paper.

MIGUEL ALFONSO MARTINEZ (Sub-Commission Expert) said Mr. Decaux had worked on tricky ground. It was essential to respect the principles enshrined in article 2 of the United Nations Charter. The universalization of legal documents was a monstrous task. When talking of universalization of a text, a serious response would be the acceptance of all entities in the text. A State that did not ratify a treaty could not comply with its provisions. Treaty bodies should stop making legal operations by asking States parties why they did not remove reservations or why they did not ratify other treaties.

ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said it was an important task, examining both the theory and the practical side. The issue of universality was being addressed, not just from the legal side but from the sociological aspect. The work plan was fairly consistent, but the first part contained information that had already been touched upon. Was there a definition of human rights proper, she inquired, and were the limits to them absolutely clear. They did not appear to be so, and therefore there was a need to see where practical issues would situate human rights. If there was no clear delineation between treaties, then human rights needed to be inserted in them. The issues of rights and standards were very interesting, and the concept of dual standards had been clear in international law since 1986. The principle of duality of standards was not just a principle that had been discussed from doctrinal aspects, but had been generally accepted. From a legal standpoint, there were standards with customary value. A less clear matter was the issue of the hierarchy of human rights standards.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said that regional institutions could be envisaged to assist micro States. It was also important to suggest ways to ensure domestic remedies. The scope of the study should take into consideration the practice of customary laws by States parties to Convention of the Rights of Child.

LEE A. CASEY (Alternate Sub-Commission Expert) said the remarks made by Mr. Alfonso Martinez, notably the trend towards and sometimes even the denigration of the sovereignty of States, was highly alarming. The question of the universality of treaties should be resolved whilst keeping in mind that treaties were contracts based on consent. The author of the report should pay great attention to the implementation of legislation of States when reaching a conclusion as to what was international law, in particular with regard to jus cogens, which was the most important form of customary international law and was also probably one of the most controversial.

IBRAHIM SALAMA (Sub-Commission Expert) said it was a domain in which observations could become counter-productive, with the implications of the subject in that it could take away from universality instead of contributing towards it. Universality was not just the reprise of norms in national legislation, but the use of these norms, which gave them cultural legitimacy in the eyes of the collectivity. The more the grass-roots were invoked in the application of norms, then the closer universality was. Another concern was when trying to link indivisibility of human rights to universality, as this could be misused. The process of integration into custom needed to be respected, as did the element of time and its progress.

EMMANUEL DECAUX (Sub-Commission Expert) said that his preliminary report would have a follow-up next year. On the issue of sovereignty, the Sub-Commission had already discussed the subject in the presence of members of the International Law Commission. The threshold of universality should be seen from the fact that all States of the world, including the succeeding States, should ratify treaties. Treaties adopted by the General Assembly had institutional obligations. The cases by the International Court of Justice, such as genocide and slavery, were considered as international treaties. How to go from symbolic ratification to effective ratification was still a question to be answered.

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

VANIDA S. THEPHSOUVANH, of Transnational Radical Party, said in Laos there was a systematic dysfunction of justice, no rule of law, and a negation of democratic values. Laos was a country where the citizens were systematically denied the freedom of expression, of demonstration or association, and the judicial system was in the hands of the leaders of the only party. Corruption reigned at all levels of the penal system. There were arbitrary arrests, torture, inhuman and degrading treatment, no separation between powers, and systematic violation of judicial procedure. Further, no international humanitarian organization had been invited to the country. The Sub-Commission should request the special bodies of the United Nations to visit the country and report on the judicial system, and bring Laos legislation and practice in conformity with international law.

ISABELLE HEYER, of International Commission of Jurists, said the issue of the administration of justice through military tribunals went beyond the judicial question and lay at the very heart of the concept of the rule of law as the guardian of human rights. It raised questions on the separation of powers, the existence of an independent and impartial judiciary, the right to fair trial and judicial guarantees, the right to conscientious objection and the fight against impunity for gross human rights violations. The project of principles was of great relevance today and the subject had been taken up at the regional level. The African Commission on Human and Peoples’ Rights had adopted in 2003 the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. They reiterated that the only purpose of military tribunals should be to determine offences of a purely military nature committed by military personnel. On the issue of discrimination in the criminal justice system, the Commission supported the Sub-Commission’s continuing work on that subject. Many groups suffered discrimination and bias in the criminal justice system, including women and members of certain racial, ethnic, religious, indigenous or other minorities.



ALESSANDRA AULA, of Franciscans International, said despite the progress report presented by the Indonesian National Commission on Human Rights to the Commission on Human Rights last year, it failed to fulfil its duty to inform the Papuans about its investigation into the Wamena case of 4 April 2003. In Pakistan, while the President had announced last June a possible revision of the country’s blasphemy laws, it was deplored that in early July, the Minister of Religious Affairs had stated that the law would continue to provide the death penalty as punishment. In Togo, the principles of the separation of powers were being flouted within the legal system in contravention of article 113 of the Constitution.

KANNIZ KHAN, of Interfaith International, said there was concern f the situation in Indonesia, and the international community and the United Nations should act to put pressure on the Indonesian Government to end the impunity enjoyed by the military and bring to justice those responsible for the human rights atrocities committed against the East Timorese. There was also particular concern for the impunity given to the security forces in Bangladesh and Bengali settlers for gross and widespread human rights violations perpetuated against indigenous peoples in the Chittagong Hill Tracks region. The Sub-Commission should continue to encourage the Bangladesh Government to acknowledge and recognize that impunity was one of the main factors that contributed to human rights violations in the country. Until a judicial mechanism was established whereby human rights violations were dealt with transparently and dealt with expeditiously, innocent people would continue to suffer.

Presentation of Working Paper on Women in Prison

FLORIZELLE O’CONNOR (Sub-Commission Expert) presented her working paper on the issue of women in prison, saying that her paper had covered the rights of children whose mothers were in prison. Those who were put in prisons should enjoy their basic rights and should be protected from any abuse, including from sexual violence. The hygienic conditions of the prisoners should also be given attention. There was a need for systematic monitoring of national standards on prison conditions. Given the situation of the dominance of the superintendents in prisons, prisoners had been subjected to certain violence. There was a negative impact on children separated from their mothers. Pregnant women should be given custodial sentences. The separation of men and women prisoners should be strictly respected, including the prohibition of male officers from visiting women prisoners.

In some correctional centres, women officers could be as harsh as their male counterparts. However, appropriate training should be continued for prison guards. The development of the child, whose mother was incarcerated, should be assessed.

Statement on the Report on Women in Prison

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said the paper should be elaborated on and in the next report give guidance as to whether separate guidelines were necessary. It was also necessary to examine whether there was a need to look separately at women in prison after conviction and before conviction. Regarding useful case law in international regional human rights bodies, there was interesting material in various locations on issues related to the burden of proof, and the issue was a wide one. The reasoning of the International Criminal Tribunals for Rwanda and Yugoslavia had had to define the term consensual, and this could also be used for definition of terms and would help in addressing the issue that prisoners were in an environment in which it would be difficult to complain. It was important for guidelines in a legal system to address this issue.


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

RACHEL BRETT, of Friends World Committee for Consultation - Quakers, welcomed the working paper by Ms. O’Connor and drew attention to the situation of indigenous peoples. Further attention should also be given to children in prisons. Women, including juvenile girls had been detained in many countries under pre-trial procedures. Further study should be carried out on the situation of foreigners, indigenous persons and children in prisons.

NICHOLAUS GARWICK, of Minnesota Advocates for Human Rights, said all branches of the Peruvian Government should take further steps to ensure full implementation of the important work of the Truth and Reconciliation Commission. Sierra Leone faced both a tremendous challenge and a historical opportunity for national reconciliation, and the Government should ensure that the important work of truth and reconciliation was carried on, and that its report was disseminated. The mechanism that would be created to implement its recommendations should also be supported. To this end, the Government should take immediate and concrete steps to address issues related to corruption, rule of law, lack of access to education, and poverty.

HANAN SHARFELDDIN, of International Organization for the Elimination of all Forms of Racial Discrimination, said there was no peace without justice. No peace without justice as in the case of the massive destruction, humiliation and oppression taking place for an oppressive 50 years in the occupied Palestinian territories. It was these unjust, tyrant and oppressive realities and policies, as well as the cruel and heavy-handed ones enforced by the United State on nations like Iraq and Afghanistan, that clearly proved that there could be no peace without justice. Conflicts between people whether individuals, groups or States, under various circumstances, were a natural phenomenon that had existed since the beginning of creation. The role of the International Criminal Court had been compromised and hampered because of the United States insistence to exclude American servicemen from complying with its ruling year after year.

ANDRA EICHMAN, of International Educational Development, said the administration of justice, rule of law and democracy were inextricably linked. Neither democracy nor the administration of justice could function without the rule of law. The legal systems of modern democracies were characterized not only by the idea of majority rule, but also by the equally important concept of the rights of minorities groups or individuals.
Uneven enforcement of human rights and humanitarian law standards presented the real danger that the rights themselves would become weakened. The idea of the universality of human rights treaties could only be achieved if the international community reaffirmed its commitment to the administration of justice, rule of law, and democracy, not through its words but also through its actions in all situations of urgency.