SUB-COMMISSION ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS BEGINS CONSIDERATION OF ADMINISTRATION OF JUSTICE

Sub-Commission on Promotion
and Protection of Human Rights
54th session
2 August 2002
Morning


Debate on Human Rights Violations
Anywhere in the World Concluded


The Sub-Commission on the Promotion and Protection of Human Rights began consideration of its agenda item on the administration of justice, the rule of law and democracy this morning after it concluded consideration on the question of the violation of human rights and fundamental freedoms anywhere in the world.
Sub-Commission Expert Leila Zerrougui introduced her final working paper on discrimination in the criminal justice system and said the events of 11 September and subsequent anti-terrorist measures had increased levels of discrimination in the criminal justice systems in several countries. Ms. Zerrougui also explained the problems of stigmatization faced by the most vulnerable people of society, saying that they faced extraordinary levels of discrimination.
Sub-Commission Experts expressed concerns about the most vulnerable groups in society and their stigmatisation in the criminal justice system, particularly aliens, migrants, illegal immigrants and non-citizens. It was essential that any potential discrimination within criminal justice systems was eliminated in dealing with vulnerable groups, several Experts stressed.
Some Experts also highlighted that in dealing with the criminal justice system, there were many more vulnerable groups than expected. These groups needed to be provided with protection and included the poor and socially excluded, pregnant women, children, minors, ethnic minorities, religious minorities, disabled people, and people of different sexual orientation. Experts pointed out the need to distinguish between positive and negative discrimination, degrees of discrimination targeting different groups in different countries, and the importance of addressing institutional discrimination in the criminal justice system.
This morning Sub-Commission Experts Iulia Antoanella Motoc, Yozo Yokota, Jose Bengoa, Emmanuel Decaux, El Hadji Guisse, Francoise Jane Hampson, Vladimir Kartashkin, David Weissbrodt, Florizelle O'Connor, Soli Jehangir Sorabjee, Asbjorn Eide and Stanislav Ogurtsov took the floor.
Representatives of Iraq and Syria addressed the Sub-Commission on human rights violations anywhere in the world.
Exercising their rights of reply under this agenda item were the representatives of the Russian Federation, Colombia, the Democratic People's Republic of Korea, China, Nepal, and the Republic of Korea.
The Association for World Education addressed the Sub-Commission on the administration of justice.
The Sub-Commission will reconvene in plenary at 10 a.m. on Monday, 5 August when it will continue consideration of its agenda item on the administration of justice.
This afternoon at 3 p.m., the sessional working group on the administration of justice will meet. At the same time, in Room XX, the Social Forum will convene its second meeting.
Statements on the Violation of Human Rights Anywhere in the World
ABDUL KARIM ASWAD (Iraq) said international law and the United Nations Charter were being violated -- especially the right to self-determination without external interference for peoples living in a sovereign country -- in terms of acts and threats of foreign military intervention or occupation against Iraq by the United States. The American administration and its British ally had declared openly aggressive schemes against Iraq in order to change its political system. The United States also was continuing the economic embargo against Iraq, which had been in effect for 12 years with drastic consequences. It even was using mercenaries in its schemes. The Sub-Commission, which had a reputation for independence and initiative, was asked to take action to stop this aggressive scheme to violate Iraqis' right to self-determination.
The situation in occupied Palestine continued to worsen; the Zionists were perpetrating many crimes, including outright massacres, with the support of the United States, against Palestine. The Sub-Commission was called upon to take whatever measures were necessary to rectify this situation, and in addition to protect Iraqi sovereignty in the north and south of Iraq.
FAYÇAL KHABBAZ-HAMOUI (Syria) said the fifty-eighth session of the Commission on Human Rights had ended in difficult circumstances. There had been a drastic reduction in the number of meetings, as well as attempts to politicize the work of the Commission with one country standing in the way. In Syria, there was faith and hope in the work of the Sub-Commission since it was the driving force of the Commission on Human Rights. Syria would not accept any attempts to undermine its role, on the contrary, Syria believed in strengthening the role of the Sub-Commission. One of the duties of the Sub-Commission this session was to study the reasons for the deterioration of human rights and for the existence of racial discrimination.
Once the reasons had been analysed the perpetrators of human rights violations needed to be singled out and punished. One concern in Syria was the situation of human rights violations and racial discrimination in the Syrian Golan. The Syrian population there was deprived from the most basic human rights, such as the right to education and freedom of movement. There was no justification for terrorism, however, the growth in terrorism would continue as long as some States gave their police and security forces the right to kill and murder anyone in the territories under occupation. Killing and terrorism was doomed to failure and would not scare the world into accepting a rule of law based on violence, occupation and segregation. In this context, one could not underestimate the importance of the right to self-determination.
Rights of Reply
A Representative of the Russian Federation, speaking in right of reply, said the representative of Medecins du Monde, in referring to displaced persons in Ingushetia, had indulged in criticism just for the sake of criticism and without regard to the facts. The activities referred to had been carried out for five months in regular contact with the authorities of the Chechen Republic and Ingushetia. The statement by the NGO alleging refusal to give humanitarian assistance to these people prior to resettlement was unfounded. The responsibility for dealing with displacements in the region lay with the Russian Federation. Russian authorities were doing their utmost to take into account the requests of displaced persons in terms of their choice of residence. The Special Representative on internally displaced persons had been invited to visit the region in September.
A Representative of Colombia, speaking in right of reply, said that several interventions by non-governmental organizations had made references to the violations of international humanitarian law and human rights in Colombia, without even mentioning the role of the guerrillas. How could one ignore the important work that had been undertaken by President Pastrana in the last four years in his attempts to reach a negotiated peace? His attempts had been given broad recognition by the international community. Even more surprising was that United Nations human rights mechanisms such as the Sub-Commission were being used to disregard the democratic elections in Colombia. It seemed as if the next Government was being disqualified before it had even entered into office.
A Representative of the Democratic People's Republic of Korea, speaking in right of reply, said Sub-Commission Expert Soo Gil Park had referred to the so-called "North Korean refugee problem". The DPRK categorically rejected his allegations, which were completely unsubstantiated and provocative. No "refugee problem" existed between the DPRK and China. It was well-known that many Koreans lived in northeastern China, most with relatives in the northern part of the DPRK; many travelled across the border officially to visit their native places and relatives. In recent years certain people illegally crossed the border to stay in China temporarily, but most of them had done so because of the current temporary economic difficulty, and, after staying a while, they returned of their own initiative. Some had fled the country in fear of legal punishment after committing crimes, and of course such persons had no alternative but to speak ill about the country they had fled. These criminals were being seduced by intelligence agencies and covert operations, then camouflaged as "refugees" and used for anti-DPRK propaganda purposes.
A Representative of China, speaking in right of reply, said Sub-Commission Expert Soo Gil Park had mentioned the situation of the so-called refugees from the Democratic People's Republic of Korea. It was necessary to clarify the situation - DPRK was a close neighbour and had always maintained friendly relations with China. A small number of Koreans had crossed the border as a result of the good living standards of Chinese people. So-called humanitarian organization had organized illegal crossings. These Koreans were not refugees but illegal immigrants motivated by economic reasons. Their return was therefore the usual practice of all countries. It was emphasised that it was the planning of the humanitarian organizations that had led to Koreans trying to force their way into embassies or consulates. Actions taken by China complied with humanitarian law. China had always strictly fulfilled its obligations with regards to refugees, however it reserved the right to distinguish between genuine refugees and illegal immigrants.
A Representative of Nepal, speaking in right of reply, said Nepal wished to provide relevant information with regard to the statement made by Expert David Weissbrodt on trafficking in women and girls. The Government of Nepal was aware of the problem and had made combatting it a priority. The Ministry of Women, Children and Social Welfare had taken a number of initiatives, including formulating a National Policy and Plan of Action. The Plan envisaged drafting appropriate policies and strategies. Poverty, illiteracy, and lack of employment opportunities were the major causes of the problem. The Government was making efforts to ensure women more access in political, economic and social development fields, and had implemented a technical assistance project with the Office of the High Commissioner for Human Rights. It also was working in close cooperation with other countries to adopt a regional convention on trafficking.
A Representative of the Republic of Korea, speaking in right of reply, said with regard to the statement made by Democratic People's Republic Korea that the Republic of Korea had not been involved in the incident in China. His Government had never been involved in such affairs.
A Representative of the Democratic People's Republic of Korea, in a second right of reply, said the DPRK strongly opposed the reference just made by the representative of South Korea. The DPRK had every reason to believe that the "problem" of refugees in China was the creation of intelligence and covert organizations from several countries, including South Korea. Such acts were clearly in violation of the reconciliation declaration recently signed between South and North Korea, and posed a threat to the reconciliation process.
Administration of Justice, Rule of Law and Democracy
Under this agenda item, the Sub-Commission has before it the final working paper prepared by Leila Zerrougui on discrimination in the criminal justice system (E/CN.4/Sub.2/2002/5) which focuses on the Sub-Commission's contribution; the international context, including sections on the World Conference against Racism and the implications of the tragedy of 11 September 2001; features of the conceptual framework for an envisaged study, including the fragile status of aliens and discriminatory mechanisms in inter-State cooperation on criminal matters; and the unsuitability of national criminal justice systems for the needs of vulnerable populations.
In her concluding remarks, Ms. Zerrougui stresses that the paper aims to disregard peripheral forms of discrimination that are not directly attributable to the administration of the criminal justice but which are passively or actively applied or reproduced by the system. This approach makes it possible to concentrate future work on the criminal justice procedure; the organization and operation of police services; the judicial and prison administration in order to detect and identify discriminatory mechanisms and discrimination de jure in legislation. It is suggested that the Sub-Commission make a qualitative contribution to further the debate on the need to reform the criminal justice system so as to ensure its effectiveness without sacrificing equity. The Sub-Commission is also expected to make a contribution to the implementation of the Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance.
Statements on the Administration of Justice
LEILA ZERROUGUI, Sub-Commission Expert, introducing her final paper on discrimination in the criminal justice system, said her paper supplemented another working paper on the administration of justice. Last year, non-discrimination and equal treatment before the law had been highlighted. Discrimination could arise from the inadequacies in the criminal system. Concerning the international context, Ms. Zerrougui said that two events had affected the working paper - the World Conference against Racism and the 11 September attacks on the United States. These two events had impacted the levels of discrimination in the criminal justice systems of several countries. The Durban Declaration had confirmed the persistence of discrimination and had prescribed a number of suggestions for the elimination of such practices. The 11 September attacks had affected legal provisions in the context of combatting terrorism. Some of these provisions had brought about criticism that could not be ignored. The working paper also consisted of recommendations made by the members of the Sub-Commission who wanted certain forms of discrimination to be highlighted in the paper. The paper had also focused on the situation of minority groups, including non-nationals, and the discrimination and difficulties faced by them. Foreign women in irregular situations were the primary victims of stigmatization in the criminal justice system. The paper also showed the difficulties faced in developing countries in protecting vulnerable people, often from the poorest strata of society. The paper was not attempting to single out States, but attempted to point out the obstacles in combatting discrimination in the criminal justice system and provide constructive advice to States.
IULIA ANTOANELLA MOTOC, Sub-Commission Expert, said concerning terrorism and human rights that the attacks on the United States of 11 September must be considered as a crime against humanity. The fundamental rights provided in human rights instruments were not being respected and it was up to the Sub-Commission to ensure the limitation of the power of countries. She welcomed the suggestion to set up a Working Group on terrorism, but stressed that it was necessary to avoid duplication of work.
Concerning women and children, Mrs. Motoc said that the work on trafficking was extremely important. It was necessary to highlight the role of countries of destination and transit as well as the countries of origin. One needed to consider all actors in trafficking, including the heads of the trafficking rings. The victim could be in one country and the perpetrator could be in another. One also needed to focus on consent, and in many cases there was no consent at all. Another important issue to do with women and human rights was that of women in armed conflicts. The treatment of women during armed conflicts and war was terrifying. Even within refugee camps, there were violations of the human rights of women, particularly on an ethnic basic. The penal systems, even after armed conflicts had ended, were weak and rarely looked at systematic rape as a war crime. Courts had found it difficult to prosecute perpetrators due to the lack of proof. Massive violations of human rights affected children, particularly in war. It was important to strengthen human rights mechanisms that had been set up to help children who had been involved in armed conflicts or forced to become soldiers. The Sub-Commission needed to pay further attention to massive human rights violations in these areas, she said.
YOZO YOKOTA, Sub-Commission Expert, said the statement made by the Government of Nepal had struck him as very constructive and useful. The information given was encouraging, especially as it referred to regional arrangements being made to combat this heinous crime of trafficking in women and children. He hoped other Governments could make similar contributions in the future to the Sub-Commission's work. It also was true, as the delegate had said, that international cooperation was essential, as trafficking in human beings was a cross-border problem, and that the root cause was poverty. It was incumbent on the world's richer nations, where many clients for sex trafficking lived, to help alleviate the poverty in poorer nations that led to much of the trafficking in human beings.
JOSE BENGOA, Sub-Commission Expert, said he wondered what this whole process of stigmatization entailed; it had reached such heights that the population of the Third World seemed to be portrayed as a bunch of criminals. There was a big grey area in justice, especially with regard to "illegals". It seemed such people did not have any rights at all, and yet, given the huge economic inequalities of the world, more and more such people were on the move; in many cases such "illegals" were simply bright, ambitious young people who wanted to get on in life. They could not do so where there were; they had to move. The solution was not to stigmatize or criminalize such people. Other ways of approaching the matter had to be found. These people were not barbarians.
Marginalization and "ghettoisation" of the most vulnerable people in society was a worldwide problem; the poor became poorer; it was easy to tar such people as "criminals" and to class them as such in immigration terms or in reference to illegal migrants. Migration was a complex problem with national and international characteristics; it should not be regarded disdainfully. The only sin of most of these people was a strong desire to escape poverty. He urged the Rapporteur to work on the issue of regulation of these migrations -- on what could be done in a humane way to cope with these movements of people. If without papers and "illegal", they were still human beings, and they often were dealt with in the worst possible way.
EMMANUEL DECAUX, Sub-Commission Expert, said that concerning the European system, it was necessary to recognize that the regional standards were closely linked to the domestic standards. Ms. Zerrougui had dealt with the reality of the situation and had been right to look at the study in the broadest light possible. One needed to look at discrimination from two angles, including both the perpetrator of discrimination and the victims of discrimination. He highlighted the need to protect the vulnerable sections of society, such as pregnant women and youth. Concerning youth, he referred to the European Court of Human Rights that had condemned the United Kingdom for sentencing two minors to ten years each. Their crimes had been terrible, but they could not be judged in the same manner as adults since they did not have the same "comprehension" of their crime. Ms. Zerrougui had undertaken important work in the context of discrimination in the criminal justice system and youth. This was particularly important since more and more countries' systems of protection of youth had been criticized. Mr. Decaux concluded that the social dimension could not be ignored, particularly with regard to access of the poor and excluded to the law.
EL HADJI GUISSE, Sub-Commission Expert, said Ms. Zerrougui's study deserved continuing support from the Sub-Commission. The topic was important for many countries; she had posed the problems correctly and was right in her approach to "positive" and "negative" discrimination. He felt, for example, that there was positive discrimination protecting minors in many countries; on the international level there also were standards that were discriminatory but positive -- for example some persons might not be executed because of their physical or mental situations: the retarded, pregnant women, the elderly, minors. Such standards needed further development, as they moved towards the objective of fair justice for all.
Negative discrimination against foreigners, meanwhile, was a huge problem; such people had no protection from their own countries and could not expect benevolent attention from the law in the countries where they happened to be. In some cases they were very brutally treated; they certainly were not treated as citizens were treated. Was it not possible to have justice evolve so that such vulnerable people were protected? Two-speed justice, justice with two standards, was unbalanced and unacceptable. Often lack of judicial independence and corruption were responsible. He hoped Ms. Zerrougui could look into the issue of judicial corruption in continuing her study.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said that there was a reference to institutionalized discrimination in the report. This was a serious problem since those practising it were not aware of doing so. Institutional discrimination therefore became extremely difficult to tackle. In the United Kingdom, in the case of Stephen Lawrence, it had been found that institutional discrimination had tainted the process. Some issues could be addressed through the prohibition of discrimination. However, where a legal system provided for due process but not equality before the law, much more could be done. Ms. Hampson asked for clarification as to the future plans of Ms. Zerrougui and which approach she would use in her work on administration of justice and discrimination. Would the infrastructure of the criminal justice system be disaggregated and seen in all its individual parts, or would discrimination be reviewed as a whole?
VLADIMIR KARTASHKIN, Sub-Commission Expert, said the working paper dealt with important questions of administration of justice. There was a reference to discriminatory measures taken by the United States following the 11 September terrorist attacks. He thought this matter should be explored further, concerning not only the United States but other countries. It was precisely in situations of crisis that one saw the clear devotion of a country to the ideals of democracy and human rights. What was needed was not just a theoretical analysis of questions related to democracy, administration of justice, and discrimination, but suggestions on how to end such discrimination. It would be very valuable if Ms. Zerrougui could formulate model examples and fair standards to help ensure that democracy and fair administration of justice could triumph throughout the world.
YOZO YOKOTA, Sub-Commission Expert, said the working paper was solid and deep in substance. Concerning the reference to politically and socially marginalised people who often faced discrimination, he said in this kind of reference, whoever was the victim must be mentioned to enable them to be treated fairly. They could not just be lumped together as excluded people or marginalised people - the groups needed to be highlighted and identified. He added that when talking about discrimination, it was necessary to note that discrimination against different groups in different countries, was also different in nature. Special care must be given to assess the different types of discrimination. As an example, Mr. Yokota referred to the situation for illegal aliens, people were sometimes incriminated through the justice system even when they were innocent and legitimate political refugees. In such cases, the justice system itself was an instrument of discrimination. He concluded that justice systems were often too closed which led to discrimination and human rights violations. There was a need for effective remedies for the victims of discrimination.
DAVID WEISSBRODT, Sub-Commission Expert, said the Working Group on the administration of justice was to be congratulated on the excellent work it had done; and Ms. Zerrougui deserved congratulations for her working paper. This final working paper laid out a potential conceptual framework for a future study on discrimination in the administration of justice; he especially was impressed by her review of discrimination against vulnerable groups. Migrant workers and their families, national minorities, and indigenous peoples were disproportionately involved in criminal justice systems, and within those systems often suffered discrimination. It often was extremely difficult for non-citizen speakers to understand the prevailing language and the charges and procedures being applied to them; in United States immigration courts, for example, language interpretation was often insufficient. All would benefit from further study of discrimination in justice systems. He supported a full study by Ms. Zerrougui.
The capacity of medical personnel to testify in criminal proceedings about torture suffered by their patients deserved investigation, Mr. Weissbrodt said. Issues of medical confidentiality came into play, and countries differed in their approach to the matter. And yet such testimony could be extremely effective in combatting torture and in aiding the work of International Courts. He would distribute to the Sub-Commission a declaration made by a colloquium which recently had discussed the issue.
FLORIZELLE O'CONNOR, Sub-Commission Expert, endorsed the call to remove the word "final" from the working paper since the administration of justice affected all people whose human rights the Sub-Commission sought to protect. In her country conscious and unconscious discrimination was based on class distinction. The perception of the accused impacted on the verdict. If stealing a mango, you could be given a sentence for up to 12 months. If an accountant was caught for fraud, he would be admonished and given up to 4 months in prison. There must be sentencing guidelines. She also noted the stigmatization that people from the West Indies were subjected to at the United States and United Kingdom's ports of entry. When identified as Jamaican, you were asked to step aside. In fact, it was the Europeans and Americans who had brought cocaine into Jamaica. In terms of stigmatization, it was necessary to look at cause and effect, particularly with new laws post-September 11. In the current environment, any citizen of another country risked being detained and held without his or her respective Government knowing where he or she was and why.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said there had been a workshop once in New Delhi with participants from neighbouring countries; and it had become clear that there was a general masculine judicial bias against women in rape cases; victims were subjected to needlessly vexatious cross-examination delving into their past lives and sexual conduct. One suggestion at the workshop was that when tribunals dealt with rape cases, they should have at least one woman member. The same suggestion, perhaps, should be made that when minority or disadvantaged groups were involved, tribunals should have one member from that minority or disadvantaged group, so that there was likely to be knowledge and sensitivity about the situation. He also thought it should be a requirement that experienced, sensitized legal aid should be provided to vulnerable persons involved in criminal justice systems; too often free legal aid was not provided in such a way that it was sufficiently useful. And there were provisions in many countries protecting public or police officials from sanction; at a minimum there should be mechanisms for allowing sanctions in such cases to be applied or not applied, to be decided by an independent judicial official.
ASBJORN EIDE, Sub-Commission Expert, said the final working paper clearly showed that there was a need to move to the next step - an all-out, in-depth study on the subject. There was a consensus that the two main groups to which attention needed to be given were aliens and indigenous peoples. Women needed to be focused on in both categories. The recognition of the spiral of social and political discrimination leading to frustration and maybe to crime, which could in turn lead to discrimination in the criminal justice systems, was an important observation. It could be useful to remember history when regulating entry into other countries. It might be useful to realize that many people wanting to enter other countries were only looking for better opportunities, something Europeans had felt free to do when approaching Australia and the United States back in history. A more human approach was needed.
STANISLAV OGURTSOV, Sub-Commission Expert, said he supported the statement of Mr. Guisse referring to the important area of corruption in the administration of justice. The topic did deserve particular attention; within the framework of Ms. Zerrougui's study, or in a separate study, the matter should be further explored. Corruption, in some countries, simply undermined the justice system to the point where simple people lost faith in it. Poverty could, in a practical sense, mean conviction in many countries, whereas those who had money could contrive through corruption never to end up in prison.
Anti-terrorism measures also needed to be studied. States did have to take all necessary measures, under their Constitutions, to protect themselves. They should not be in the position of sliding to the point of extinction because they were not able to respond to threats against them through concern about meeting certain standards. The issue was complex and had to be carefully considered.
LEILA ZERROUGUI, Sub-Commission Expert, in response to the comments made, said that it was clear that this was a subject close to the hearts of Sub-Commission Experts. The subject would require a number of studies, depending on the choice of approach. The work would have to proceed as developments occurred. The most important point was the administration of justice from the inside and seeing how it was discriminatory in its rules or legislation. It was important to see how society imposed a certain way of administrating justice, since both the judges and the juries were part of society. Concerning Ms. Hampson's question, Ms. Zerrougui said one should probably start with the administration of justice from the inside and move on from there. Ms. O'Connor had asked about stigmatization and whether this would be taken into consideration in future work. Ms. Zerrougui stressed that stigmatization could not be ignored since it overlapped with discrimination. Concerning corruption, she said that it was an aspect which would probably be best approached if dealt with separately.
DAVID LITTMAN, of the Association for World Education, said Egypt was a classic example of the constant use of military tribunals and an iniquitous "state of emergency" system. Although not at war with any State, Egypt in May 2000 had extended the system for a further three years, thereby referring any civilian to a military court by a presidential decision if the case fell under the category "act of terrorism". A Coptic doctor, Neseem Abdel Malek, had been unjustly condemned to 25 years in prison by a military court in 1997 on totally inadequate evidence; this was a typical example of a miscarriage of justice under a badly flawed system. Human rights were flouted, using the state of emergency regulations, a military tribunal, flagrant discrimination, and refusal of any appeal.
Similarly, in 2000 Professor Saad Eddin Ibrahim and 27 of his colleges had been arrested soon after publishing a documentary "Appeal to the Egyptian Nation". The 64-year-old Professor had been re-sentenced, after a retrial, on patently trumped-up charges. Amnesty International had called the verdict politically motivated and intended to silence all liberal contestation. It was time for UN bodies to address Egypt's dismal human rights record.


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