SUB-COMMISSION STARTS DEBATE ON ADMINSTRATION OF JUSTICE, EXPERT INTRODUCES REPORT ON JUSTICE AND MILITARY TRIBUNALS

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




Concludes Discussion on Specific Human Rights Issues
after Hearing Reports on Regulation of Citizenship
by Successor States and Women Married to Foreigners




The Sub-Commission on the Promotion and Protection of Human Rights this morning started its debate on the administration of justice, the rule of law and democracy by hearing one of its Experts introduce a report on the administration of justice through military tribunals.
Sub-Commission Expert Emmanuel Decaux presented his report on the administration of justice through military tribunals, saying that the issue had been of concern to the Sub-Commission for many years. Military justice was in a separate world, aside and above normal justice, and it undermined all principles of sound administration through the separation of powers. It was necessary to open up the debate on military tribunals and to involve military persons in the debate.
Earlier in the meeting, the Sub-Commission concluded its general debate on specific human rights issues after hearing Sub-Commission Expert Vladimir Kartashkin introduce two studies on the regulation of citizenship by successor States and on women married to foreigners.
On the regulation of citizenship by successor States, he said the International Law Commission’s declaration contained a specific text on citizenship by successor States which dealt with issues such as the right to citizenship, prevention of the loss of citizenship, and the ban on deprivation of citizenship; and it was therefore not a good idea for the Sub-Commission to develop a working document on this issue.
On the rights of women married to foreigners, Mr. Kartashkin said that in many countries, discrimination was practiced against women who married foreigners; and the involvement of international law in domestic jurisdiction in such cases would be appropriate to ensure compatibility.
The following Sub-Commission Experts also participated in the debate: Francoise Jane Hampson, El Hadji Guisse, Asbjorn Eide, David Weissbrodt and Soli Jehangir Sorabjee.
The representatives of the following non-governmental organizations contributed statements in the debate on the administration of justice: Dominicans for Justice and Peace (in a joint statement with several NGO*); Association for World Education; Friends World Committee for Consultations; World Organization Against Torture; Transnational Radical Party; World Muslim Congress; Minnesota Advocates for Human Rights; International Islamic Federation of Student Organizations; Centre Europe-Third World Centre; Human Rights Advocates; and International Association of Democratic Lawyers.
Sudan exercised its right of reply.
The Sub-Commission will reconvene at 3 p.m. this afternoon to continue its discussion on the administration of justice, rule of law and democracy.

Documents
Under its agenda item on specific human rights, the Sub-Commission has before it a working paper on the rights of women married to foreigners (E/CN.4/Sub.2/2003/34) by Vladimir Kartashkin. The working paper states that in many countries, women who marry foreigners still face discrimination, since marriage to a foreigner involves the loss and change of their nationality. Lack of nationality, or statelessness, inevitably entails an infringement of women’s civil and political and social and economic rights. Questions of nationality and the conditions governing its acquisition or loss are chiefly regulated by States’ domestic legislation and generally relate to their domestic jurisdiction. This did not mean that international law is excluded from the process of regulating nationality. In this connection, the “invasion” of international law into States’ domestic jurisdiction takes different forms. This involves, first of all, the adoption of international instruments regulating questions of nationality in such a way so as to ensure that men and women enjoyed equal rights. Secondly, since each State acts independently in this sphere, conflicts between the nationality legislation of different States are inevitable. The existence of such conflict gives rise to the need to regulate questions of nationality at the international level through the conclusion of both bilateral and multilateral agreements. The Working Paper analyses only universal, international instruments that in one way or another formulate both general and specific principles and rules relating to the nationality of women married to foreigners.
There is a note by the Secretariat (E/CN.4/Sub.2/2003/33) which states that Vladimir Kartashkin will present his working paper on the regulation of citizenship by successor States with respect to nationals of the predecessor States orally.
Under its agenda item on the administration of justice, the Sub-Commission has before it a report by Emmanuel Decaux (E/CN.4/Sub.2/2003/4), not yet available in English, on the question of the administration of justice by military tribunals.
There is a note by the secretariat on the promotion and consolidation of democracy (E/CN.4/Sub.2/2003/7) which states that Manuel Rodriguez-Cuadros’ expanded working paper on measures provided in the various international human rights instruments for the promotion and consolidation of democracy will be submitted by him at the next session of the Sub-Commission.
There is a report of the Office of the High Commissioner on the administration of justice, rule of law and democracy (E/CN.4/Sub.2/2003/39) which contains information on the question of human rights and states of emergency, as well as a list of States which have proclaimed or continued a state of emergency.
There is a note from the secretariat containing a memorandum submitted by the International Labour Office (E/CN.4/Sub.2/2003/42) on the administration of justice, rule of law and democracy; economic, social and cultural rights; and the prevention of discrimination. The purpose of the memorandum is to draw the Sub-Commission’s attention to a number of ILO activities, and to facilitate its work. Naturally, a selection of the most pertinent and recent developments had to be made. The memorandum is a part of the ILO’s commitment to engage in an active partnership with the United Nations on human rights matters. It hopes that the memorandum will be a useful tool to the members of the Sub-Commission, observers and non-governmental organizations, serving as a source of information as well as a reference guide. It includes information on ratification of ILO Conventions; standard-setting activities; supervision of standards; sections on globalization, informal sector; application of conventions concerning discrimination; as well as general activities for the prevention of discrimination.

Discussion on Specific Human Rights
VLADIMIR KARTASHKIN, Sub-Commission Expert, introduced his reports on the rights of women married to foreigners and on the regulation of citizenship by successor States. Concerning the report on the regulation of citizenship by successor States, he explained that he had had doubts with regards to this report. The International Law Commission had been working for years on this issue and had recommended a text to the General Assembly. The International Law Commission declaration contained a specific text on citizenship by successor States which dealt with issues such as the right to citizenship, prevention of the loss of citizenship, and the ban on deprivation of citizenship. A report of the Sub-Commission on this matter would duplicate the work of the International Law Commission and the General Assembly. It was therefore not a good idea for the Sub-Commission to develop a working document on this issue.
Concerning the rights of women married to foreigners; he said attention had been focused on the question of citizenship of women married to foreigners. In many countries there still was discrimination against women who married foreigners which led to the loss of citizenship. His report was an endeavor to contribute to the question of equality between men and women. The regulation of the citizenship question, and its acquisition or loss, related to the domestic affairs of a State and its national legislation. The involvement of international law in domestic jurisdiction in this case would be appropriate to ensure compatibility. When conflicts arose, it would be necessary to turn to international legislation and standards of international law. There were many questions which the limited nature of the document had prevented consideration of, however the report covered international legislation; the work of the United Nations and the principle of equality between men and women; and an analysis of the regulations governing the nationality of men and women.
After almost 50 years of the establishment of a convention which covered the citizenship of married women, less than half of the States in the world had ratified it. One must ensure equality of women and that neither a celebration nor a dissolution of a marriage affected citizenship. The basic international document adopted within the framework of the United Nations – the Convention on the Eradication of all Forms of Discrimination against Women – provided for the equality of women and men. His preliminary recommendations covered issues related to ensuring gender equality; problems related to women married to foreigners; and the impact of globalization on cross-country marriages. The report also recommended that the Committee on the Elimination of Discrimination against Women request States to provide in their reports information on existing legislation in this field.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said that the Sub-Commission should alert the concerned bodies, such as the International Law Commission, on the study on citizenship by successor States. With regard to women married to foreigners, she said that there had been some problems encountered concerning women married to European Union citizens. The new law in Israel also prevented citizens from marrying foreign women. Such measures had overwhelmingly negative impacts on Israeli-Palestinian relations. Concerning the submission of reports by States parties to treaty bodies, there was undeniably a genuine problem. It was genuinely difficult for many States to discharge properly their reporting obligations. That might either be attributed to a lack of resources, infrastructure and training to accomplish the task or attributable to the reverse problem, too much information in too many different places which needed to be assembled and coordinated. It was also often the case that there was a very long delay between the submission of a report and its consideration by the relevant committee. With regard to non-citizenship, whether they were refugees, asylum seekers or visitors, the issue should be addressed globally.
EL HADJI GUISSE, Sub-Commission Expert, said that the problem of the regulation of citizenship by successor States was a most important subject for those countries that had been under colonial domination and had now achieved their independence. State succession did not only have a legal aspect, it had economic, social and cultural implications too. If the Sub-Commission dropped the subject, it would loose a subject of importance to States that had gained their independence after 1960. The problem of successor States could not only be considered through legal perspectives. He would not object to this suggestion but believed that much more could have been said about it. Concerning women married to foreigners, there was a risk of disturbing a lot of national legislation that had previously been accepted by the international community. In reality, if one were to drop the first report, one ought to also look at work already dealing with many aspects of women married to foreigners. In addition, there were recommendations within the report even though it had just been circulated. The cart had been put before the horse in this case. At least, the Sub-Commission should authorize a third study before making premature recommendations.
EMMANUEL DECAUX, Sub-Commission Expert, said that there were obstacles put by some States to discourage marriages between nationals and foreigners. In some States, a heavy tax was imposed if a national decided to marry a foreigner, which was a sign of discrimination.
ASBJORN EIDE, Sub-Commission Expert, said that under the circumstances, the Sub-Commission should not, at this time, continue with the study on the regulation of citizenship by successor States due to the work of the International Law Commission. However, at a later date, the Sub-Commission might want to look at the implementation of States’ policies in this regard. Turning to the rights of women married to foreigners, he agreed with the statement made by Francoise Jane Hampson. The situations mentioned in Denmark and Israel by her were indeed disturbing. The issues in Mr. Kartashkin’s paper were important, however the recommendations were too weak. The issues must be specified in a more detailed manner in his next paper. He suggested that a seminar be held on some of the proposals made by Ms. Hampson to decide how these issues could be dealt with by the Sub-Commission.
DAVID WEISSBRODT, Sub-Commission Expert, said he supported the idea that the issue of citizenship by successor States should be dealt with by the International Law Commission. He appreciated the work done by Mr. Kartashkin on the issue of regulation of citizenship by successor States and the situation of women married to foreigners. On the issue of women married to foreigners, the Convention on the Elimination of all Forms of Discrimination against Women required States parties to provide women with equal status in the process of changing or obtaining their nationality.
VLADIMIR KARTASHKIN, Sub-Commission Expert, thanked the Sub-Commission Experts for their comments on his presentation. Most of the members had agreed that the consideration of the regulation of citizenship by successor States must wait for the decision of the General Assembly. Since it was difficult to predict the form of the decision of the General Assembly, one could later decide whether the Sub-Commission had a role to play. Concerning the rights of women married to foreigners, discrimination existed in many countries throughout the world and conflicts persisted between national legislation and international standards and norms. Many States had not ratified relevant conventions relating to the rights of women married to foreigners, which represented a continuation of discrimination. In recent years, there had been a trend of seeing the adoption of an international document with only a few countries bringing their national legislation in line with the text. One problem was that international law did not set deadlines, and countries decided on their own timeframe. With regards to countries that had ratified international conventions, there were still problems of aligning national legislation to the text. It was important to ensure that Governments worked towards practical results. This was not only a job for the Committee on the Eradication of all Forms of Discrimination against Women, but all other bodies dealing with the adherence of national legislation to internationally agreed upon standards.

Right of Reply
A representative of Sudan, referring to a statement made by one of the non-governmental organizations yesterday on allegations of slavery in Sudan, said that the allegations did not deserve a reply.

Discussion on the Administration of Justice, Rule of Law and Democracy
EMMANUEL DECAUX, Sub-Commission Expert, presented his report on the issue of the administration of justice through military tribunals, saying that this issue had been of concern to the Sub-Commission for many years. In this connection, he paid tribute to former Sub-Commission Expert Louis Joinet for his important work on the administration of justice. Both reports of Mr. Joinet had pinpointed the methodological basis on which work was to be undertaken. With regard to the substance, the point of departure was simple and followed the work of the Commission on Human Rights and human rights committees. The report covered the competence of military tribunals and the inherent guarantees to equality. Every person had the right to have his case heard equitably in public by a competent and fair court. Everyone had the right to be judged by regular jurisdiction and no jurisdiction must be set up to deprive a person of this right. It was important that those States that had established military courts ensured that these tribunals were part of the wider legal system. The principles of the Universal Declaration on Human Rights as well as the International Covenant on Civil and Political Rights were clear on the rights of persons with regard to the administration of justice. Military justice was in a separate world, aside and above normal justice, and it undermined all principles of sound administration through the separation of powers. It was in fact legal schizophrenia which had been rejected by the Commission. He clarified the many stakes that were involved and stressed the need to define competences. It was necessary to open up the debate on military tribunals, and to involve military persons in the debate, in order to move to the next stage which included putting forward the recommendations of the Sub-Commission.
PHILIPPE LEBLANC, of Dominicans for Justice and Peace, in joint statement with several NGOs*, said that in calling for the abolition of capital punishment worldwide, his group expressed deep concern about its unjust and unequal application. In countries where the death penalty continued to be enacted, it was more likely to be applied in a racist manner, more likely to be applied to minorities and the under classes in general. Poor people, disabled people and young people were more often subjected to capital punishment. The case of Javier Suarez Medina, a young Mexican national who had been executed in Texas on 14 August 2002 was an excellent illustration of that ongoing discrimination. Sentenced to death when he was only 19 years old, his case raised deeply troubling questions about the fairness of his trial and the ongoing refusal of Texas authorities to respect their binding international treaty obligations. After 13 years on death row, he had exhausted all normal avenues of legal appeal. His death sentence was based on unadjudicated offences or crimes he was not proven to have committed. He was executed by lethal injection on 14 August 2002.
DAVID LITTMAN, of Association for World Education, proposed that the Special Rapporteur on discrimination in the administration of justice investigate the case of the “Ancient Jewish Community of Iran and the Shiraz Show Trial” in order to enquire whether it was true that, in the Shiraz trial, any testimony from a Jew with regard to a Muslim was considered invalid by the court because of the traditional and imperative obligations of the sacred Islamic Shari’a law which forbade it. The same situation applied automatically in Saudi Arabia, or in any Muslim country using the Shari’a law in trials where non-Muslims – be they Jews or Christians – were implicated by Muslims. A similar situation based on religious discrimination in another criminal justice system was related to American mothers from the United States whose young children had been illegally taken to Saudi Arabia by divorced husbands. The Association asked for a confirmation from the representative of Saudi Arabia that these cases were being resolved. In relation to Egypt’s State of Emergency regulations and the administration of justice, or rather of injustice, the Government of Egypt had still failed to heed the appeal to take the necessary steps to remedy the situation. The Association reiterated its appeal to President Hosni Mubarak to free Dr. Neseem Abdel Malek – a former Director of the Cairo El Khanka Mental Hospital – on compassionate grounds by a humanitarian, presidential pardon.
RACHEL BRETT, of Friends World Committee for Consultation (Quakers), said that her group welcomed the reports on the “administration of justice through military tribunals” submitted by former Sub-Commission Expert Louis Joinet and this year’s report by Emmanuel Decaux. The reports provided an important recognition of the fact that an independent and impartial civilian body should determine the adjudication of any claim as a conscientious objector to military service, whether that claim was being exercised at the time of any initial call-up or during service in the armed forces. The importance of independence and impartial civilian determination of all such claims could not be overstated. As Mr. Decaux pointed out, the military was a party to the matter under consideration and therefore should not also be a judge. The lack of independence and impartially of military tribunals adjudicating on conscientious objection were often compounded by inadequate information on the standards being applied by the lack of reasoned decisions or even a record of proceedings available to the claimant; and the question of legal representation for the claimant.
SYLVAIN DE PURY, of World Organization Against Torture, said the administration of justice by military tribunals had long been the object of severe criticism since such tribunals were often used to ensure the impunity of perpetrators of serious human rights violations. They had also been deliberately used to prosecute certain persons deemed to pose a particular threat, functioned outside of the “ordinary” court system, and were subjected to “special rules” and procedures which revealed the undue influence of the executive power. In the Democratic Republic of the Congo, a military jurisdiction, the recently abolished Court of Military Order, established in 1997, had been responsible for numerous abuses, including the prosecution of civilians and the passing of death sentences against children. In the United States, the government was about to set up military commissions to try suspected terrorists. For this purpose, the Department of Defense had issued several orders and instructions governing procedural aspects. Whereas some of them provided for judicial guarantees, others fell far short of international standards related to fair trial.
Ideally, military tribunals must be abolished. However, for as long as the abolition of such tribunals was not a reality, the implementation of the recommendations made in the report of the Sub-Commission would do much to ensure that such tribunals complied with international standards to ensure a fair trial. Of particular importance were recommendations stating that military tribunals did not have jurisdiction to try civilians; that such tribunals were not competent to try persons accessed of serious human rights violations; and that the right of appeal before civil jurisdiction was guaranteed.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said that military tribunals were all equipped to adjudicate upon the claims of conscientious objectors. The issue to be decided on in such cases was whether opposition to military conscription was an integral part of the religious faith of the objector. The tribunal was not concerned with the correctness of the belief. Military tribunals might be required to act in certain circumstances and situations. However, there should be some remedy by way of appeal or judicial review against the decision of the tribunal. The tribunal’s order or decision should not be final or absolute.
ANGELICA RUSSOMANDO, of Transnational Radical Party, said military interventions, sometimes necessary to ensure international peace and security, could not be considered the most suitable tool for the promotion of democracy and freedom in countries under totalitarian, dictatorial and authoritarian regimes. Real democracies must combine the analysis and development of traditional military strategies and weapons with the choice of promoting democracy through non-violent means, as a priority strategic tool to combat and defeat once and for all those who attacked international peace and security. Democracy, development, respect for human rights and fundamental freedoms were interdependent and mutually reinforcing. Free and fair elections were an essential feature of democracy and must be part of a broader process that strengthened democratic principles and values, institutions, mechanisms and practices, which underpinned formal democratic structures and the rule of law. One of the main unresolved issues of international human rights law was the lack of effective compliance mechanisms to enforce international norms capable of ensuring the respect of human rights and the right to democracy. It was suggested that the General Assembly set up an independent Committee to study and recommend a democracy compliance mechanism. A global democracy compliance mechanism, in the final analysis, had to be a finely crafted governmental mechanism, since governments essentially had to observe the norms, but in consultation with, and inputs from others.
RAJA IMTIAZ AHMED KHAN, of World Muslim Congress, said the rule of law, administration of justice and democracy were interdependent and mutually reinforcing. The fair administration of justice signified rule of law, which was the essence of democracy. The collapse of a justice system constituted either anarchy or oppression. The current Parliament in India, the elections in Jammu and Kashmir and the attitude of the Indian occupation army in Jammu and Kashmir all attested to the fact that the constitutional rights and those defined in international law had all been set aside when its came to the people of Jammu and Kashmir. This situation needed strong international monitoring. The governance in India had led to dozens of insurgencies and separatist movements as those were not symptoms but full expressions of total discontentment of a wide majority of people with democracy, administration of justice and the rule of law in that country.
MANPREET SINGH DHANJAL, of Minnesota Advocates for Human Rights, drew the attention of the Sub-Commission to the Peruvian Truth and Reconciliation Commission, which had been set up in 2001 to investigate and assign responsibility for human rights violations committed between 1980 and 2000 – including between 45,000 to 60,000 killed, and 7,000 to 8,000 disappeared persons. In general, Minnesota Advocates had found that the Truth and Reconciliation Commission had worked diligently to address its mandate. It had amassed an extraordinary amount of information and had conducted numerous public hearings and workshops, as well as initiating a campaign on disappeared persons. Minnesota Advocates called upon the Government of Peru to prosecute effectively the crimes specifically identified by the Commission. To that end, the Government must ensure that judges, prosecutors, witnesses and victims were adequately protected. The judicial selection process must be rigorous and only candidates who demonstrated appropriate training, aptitude, honesty, impartiality and concern for human rights must be selected as judges.
Minnesota Advocates reaffirmed the importance of the final report of the Truth and Reconciliation Commission and its recommendations that must be issued by the end of this month, particularly those referring to holistic reparations for victims and the search for justice. The government and the legislative and judicial powers, all Peruvian political parties, Peruvian civil society organizations and the international community were urged to support the current efforts of the Commission and the mechanism that would be created to implement its recommendations.
YOUSRA Y. FAZILI, of International Islamic Federation of Student Organizations, said that in many countries, democratic principles were not adhered to and elections were neither free nor fair. Lack of political machinery to institute democracy often had more relevance for independence and self-determination claims than human rights abuses or weak civil and political rights. Maintaining democracies in divided, multi-ethnic and multi-religious societies required a firm commitment to democratic ideals. Despite being a party to international conventions, many countries failed to abide by their provisions. She drew attention to the situation in Kashmir, where people were dreaming of democratic values, fundamental freedoms and self-determination.
MALIK OZDEN, of Europe-Third World Centre, referred to the situation of human rights in Turkey, with particular reference to the Kurdish people. Since last year, the Turkish Government had made amendments and modifications to legislation intended to contribute to the democratic reform of the country. This democratic reform was eagerly expected by the Turkish citizens, and was required for Turkey’s accession to the European Union. However, the modifications fell short of expectations and were not being applied. Changes such as the broadcasting of television programmes in Kurdish had still not been implemented. In addition, the practice of torture remained a severe problem. According to the Turkish human rights association, 1,300 people had made complaints and alleged that they had been tortured whilst in detention. There were also frequent complaints of summary and arbitrary executions. The Human Rights Association was now a target of repression in the country, including the confiscation of its archives and software, as well as frequent threats.
Concern was also raised about the precarious living conditions of the 4 million Kurdish displaced farmers due to the destruction of 3,500 villages by the army. The recommendations of Francis Deng, Special Representative of the Secretary-General on internally displaced persons, must be implemented in this connection. Furthermore, the Turkish Government must proclaim a general amnesty, without conditions, for all political prisoners. Only such actions would contribute to the democratization of Turkey and the dialogue with the Kurdish people.
CECILIA HAN, of Human Rights Advocates, said that after 11 September, the United States had captured more than 650 terror suspects, allegedly Taliban and Al-Qaida members. They had been held in Cuban land leased by the United States at Guantanamo Bay. The prisoners were from 42 countries and there were juveniles between the ages of 13 and 15. They had been held for more than a year without being informed of the charges against them and without access to lawyers. Some had difficulty contacting the diplomatic representatives from their homes countries. The condition of the detainees was a matter of concern. Many of them were still held incommunicado without access to legal proceedings. It was also reported that the mental conditions of some of the detainees needed special treatment. The United States had the obligation to respect the relevant international instruments, including the Geneva Convention pertaining to the prison conditions of captured combatants.
YUOMI JEONG, of International Association of Democratic Lawyers, stressed the presence in the room of a South Korean survivor of the United States massacres in that country during the Korean War. One of the factors that had contributed to the unfortunate legacy of the Korean War was that crimes had been committed by the United States military under the auspices of United Nations Special Forces, thus directly raising the United States’ responsibility and accountability for these war crimes. In South Korea, a series of civilian and military dictatorships following the war did not have the power or the will to question the United States’ responsibility on this issue. De facto lopsidedness of South Korea-United States relations, highlighted by the presence of 37.000 United States troops in South Korea, severely undermined the national sovereignty of South Korea and further compromised the rights of its people, particularly the victims of the United States military massacres during the Korean War. No action had been taken so far to bring healing and peace to these victims. The Korea Truth Commission had been established to investigate, document and disclose the details of these mass killings of civilian villagers and refugees. The United States was guilty of war crimes and crimes against humanity and peace in Korea. To guarantee that such heinous violations of human rights would never again take place, to guarantee that such terrible wars costing countless lives on both sides and jeopardizing the peace of all humankind could be prevented in the future, the Association implored the Commission to investigate and disclose the truth, and called for the United States to apologize and provide compensation to the victims of the United States massacres of Korean civilians, even though they took place 50 years ago.



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* Joint statement on behalf of: Pax Christi International; International Catholic Peace Movement; Dominican Leadership Conference; and Congregations of St. Joseph.