SUBCOMMISSION ADOPTS RESOLUTION OPPOSING APPLICATION OF DEATH PENALTY TO JUVENILES

EVENING

HR/SC/99/27
24 August 1999



Panel also Concludes Debate on Human Rights and Terrorism


The Subcommission on the Promotion and Protection of Human Rights adopted by secret ballot this evening a resolution that condemned the imposition of the death penalty on juvenile offenders -- meaning, in this case, persons executed for crimes committed when they were under age 18.

The measure called on countries that carried out the practice to end it, and mentioned in a preambular paragraph six countries which, according to an annex to the resolution, had applied capital punishment in 19 cases since 1990 to juvenile offenders. The mention of the specific countries -- Iran, Nigeria, Pakistan, Saudi Arabia, the United States of America, and Yemen -- led to extensive debate and statements in vigorous opposition by several of the countries.

There was also disagreement about the age of certain criminals when they were executed. And the Experts debated whether a prisoner who was executed when he was over the age of 18 still could be considered a juvenile offender.

The resolution, which passed by a secret vote of 14 in favour and 5 opposed, with 5 Experts abstaining, also called on States not to apply the death penalty for refusal to serve in or desertion from the military, and called on States to commute all death sentences to at least life imprisonment on 31 December 1999 to mark the millennium.

The session, which lasted from 6 to 9 p.m., ended with Experts debating a draft resolution on the continuing obligations of States under international human-rights treaties. That text, if passed, would urge several countries that had chosen to withdraw from various international human-rights instruments to reconsider their decisions. The debate will resume when the Subcommission reconvenes Wednesday, 25 August, at 10 a.m. to take up that and other draft resolutions.

Earlier in the session, Subcommission Experts raised questions and offered support for a preliminary report on terrorism and human rights, and also heard comments on the subject from several countries and non-governmental organizations (NGOs).

Representatives of the following countries spoke over the course of the meeting: Iraq, Turkey, Sri Lanka, Pakistan, India, Iran, Saudi Arabia, and the United States of America.

The following NGOs delivered statements: European Union of Public Relations; International League for the Rights and Liberation of Peoples (in a joint statement with Society for Threatened Peoples); Consultative Council of Jewish Organizations (in a joint statement with Coordination Board of Jewish Organizations and World Union for Progressive Judaism); World Fellowship of Buddhists; and International Federation of Human Rights.

Iraq, Bahrain, Pakistan and India spoke in exercise of the right of reply.

Statements

JUANITA OLIVIER, of European Union of Public Relations, said it was important to take a closer look at the participation of non-State players involved with terrorism. Terrorism justified in terms of religious ideology presented a particularly potent threat to mankind. The international community and the media had been lax in discharging their responsibilities towards curbing terrorism. Apartheid seemed to apply to combatting terrorism. When a white person was killed by a terrorist group, retaliatory action was swift. Yet groups that routinely massacred innocent civilians in developing countries were allowed to function overtly from offices set up in developed countries.

Fundamentalist, narco-terrorism was today's major enemy of human rights. Fundamentalism recognized no creed but its own and provided the legitimacy for armed action against perceived non-believers. The international community must deny publicity, legitimacy and sanctuary to terrorist groups and sanction nation States using terrorism as an instrument of State policy.

VERENA GRAF, of International League for the Rights and Liberation of Peoples (in a joint statement with Society for Threatened Peoples), said the search for lasting peace of international society, which was in constant evolution, contrasted with the extension and diversification of terrorist acts, methods and practice, including those by armed groups such as suicide bombers, murderers of human-rights defenders, and abducters of persons. In spite of persistent UN efforts aimed at efficiently combatting terrorism as a international crime, much had to be done in practice to counter the diversification of terrorism, as noted by various General Assembly resolutions. The constructive preliminary report of Kalliopi Koufa on terrorism and human rights was welcomed, but it was hoped that her next report would look more deeply into questions of definition, into the social break-ups which affected the structure of statehood in several countries, and into the use of mercenaries by the big powers.

Terrorism was a criminal act which affected one of the fundamental rights of the human being, the right to life. It was also a complex act linked to other crimes such as drug trafficking and arms trafficking, most often exercised with the complicity of States. Although the distinction between State terrorism and terrorism groups was a must, the responsibility borne by the State in the first case should not be forgotten. Impunity of State-sponsored terrorists was a preoccupying issue, that was why it was important to remind States of their international commitments and to enhance international cooperation for true progress against terrorism.

GEORGE WILKES, of Consultative Council of Jewish Organizations,
Co-ordinating Board of Jewish Organizations, and World Union of Progressive Judiasm, said the organizations wished to draw attention to the reported bulldozing of a Jewish cemetery in Iran last week. This raised questions about protection of the Jewish community from irresponsible elements. This statement was not in any way an attack on the Islamic Republic of Iran, nor was it intended to sow dissension. The Iranian Jewish community was deeply loyal to its country.

However, some sections of Iranian society made no distinction between Zionists and Jews. Zionist espionage did not refer to the maintenance of Jewish life. The organizations hoped that representatives of the Islamic Republic of Iran would respond to this statement as the genuine call for dialogue and solidarity that it was.

H. L. D. MAHINDAPALA, of World Fellowship of Buddhists, said the violence inherent in terrorism struck at the very heart of the fundamental tenets of Buddhism. However, it would be redundant for the organization to emphasize to this august assembly the moral and philosophical commitments in Buddhism to non-violence. Nor was it the intention of the organization to deal with terrorism from a Buddhist perspective. Rather, it was most appropriate to review it from the perceptive insights drawn from the critical analysis of the modern phenomenon of terrorism written by Ms. Koufa, the Special Rapporteur. It was an invaluable report that had grappled with the complexities and the realities of terrorism, which was emerging as the greatest threat to humanity in the coming millennium.

The significance of the report was in the paradigm shift from the State as the sole instigator and the perpetrator of terrorism to non-State actors. Without letting the State off the hook, the report focussed also on non-State entities, setting the tone, the themes and the substance for an enlightened debate on terrorism. The report had the potential to advance the global battle against terrorism. It was the hope of the organization that the report would pave the way for a better future for peace, democracy, human rights and non-violent politics.

BASSIROU BARRY, of Federation Internationale des Ligues des Droits de l'Homme, said the organization was concerned when States tabled reservations when ratifying international human-rights conventions; Ms. Hampson's paper on reservations was, therefore, particularly welcome.

Human rights were not at the disposal of States and they could not modify them as they wished. It was necessary to review international law on the subject, as Ms. Hampson suggested. State responsibility was engaged every time terrorist acts were imputed to it or when a State had not shown sufficient diligence in protecting its citizens from terrorism. International criminal law should be further developed to fight against international transnational crime.

MOHAMED AL-DOURI (Iraq) said it could not conceal that there was a reality that certain countries had the power to exert pressure on mechanisms dealing with human rights to promote political objectives. There was a detrimental effect on human rights caused by the economic embargo imposed on Iraq. The situation in Iraq was a sad example; everybody was aware of this. There was genocide because of the actions of two countries.

The number of child victims was more than 1 million. This was the greatest tragedy that had struck children in this century. The Subcommission could help remedy the situation.

BULENT MERIC (Turkey) said that ethnic terrorism attempted to influence rival groups and hostile Governments, and hoped to forge a distinct ethnic identity and foster ethnic mobilization through violence. It had two effects: it ensured ethnic homogenization and it cleansed other ethnic elements from territories. It used crime, including drug trafficking, extortion, arson and money laundering.

Although terrorism was a criminal phenomenon, dealing with it was not merely a problem of crime control. There was also a human-rights element, as terrorism was aimed at innocent civilians. Non-State actors also had a responsibility. The Special Rapporteur should give special attention to the impunity afforded by some States to terrorists.

WIJESIRI HETTIARACHCHI (Sri Lanka) said that as the report pointed out, the Subcommission now had the opportunity to contribute to filling yet another void in existing international human-rights law in an area of burning, contemporary significance. The report on terrorism had quite rightly proceeded on the premise of the principles outlined by the General Assembly. These principles condemned all acts, methods and practices of terrorism wherever and by whomever they were committed. They also pointed to a growing international convergence and awareness of the relationship between human rights and terrorism.

It was indeed essential that the Special Rapporteur also continue to develop and elaborate on the pronouncement of the Vienna Declaration and Programme of Action substantiating the dangers posed by terrorism to the very fundamentals of national and international regimes for the protection and promotion of human rights and individual freedoms.

FAROOQ HASSAN (Pakistan) said that terrorism was any use of violence that was indiscriminate and directed against innocent people. Terrorism needed to be distinguished from armed struggle against foreign aggression and occupation. Terrorism was a threat to democratic societies. Ms. Koufa had established a clear link between terrorism and human-rights violations. Her study should include investigation of the underlying causes of terrorism.

SHARAT SABHARWAL (India) said the phenomenon of terrorism was a major challenge confronting the international community today and posed one of the most serious threats to human rights. In this context, India recalled Article 30 of the Universal Declaration of Human Rights and its injunction that no group or person had the right to engage in any activity aimed at the destruction of the rights set forth in the Declaration. Terrorist acts violated the most fundamental right of all, the right to life, and also infringed up several other important rights, including the freedom of opinion and expression and the freedom from fear, and negatively affected economic, social and cultural rights.

India had been the victim of some of the most brutal manifestations of terrorism aided and abetted from across the border. A neighbouring country that had all along nurtured territorial ambitions on the Indian State of Jammu and Kashmir was waging a proxy war against India. This proxy war had included the operation of training camps for terrorists, including foreign mercenaries, who then crossed into India to commit terrorist outrages. The proxy war and this country's sponsorship of State terrorism for more than a decade had been responsible for gross violations of human rights by terrorists. The campaign had caused untold misery, besides posing a serious challenge to the democratic, secular and pluralistic fabric of Indian society.

MUSTAPHA MEHEDI, Subcommission Expert, said the report on terrorism was both moving and topical. The opportunities to carry out terrorist attacks had multiplied. Terrorist groups were more and more sophisticated. This was thanks partially to the assistance of certain Governments who caused the instances and then helped alleviate them. It was possible to note a proliferation of such acts over the past decade. The first attempt to create mechanisms to combat terrorism predated the Second World War -- Madam Koufa took note of this. International conventions over the years had defined terrorism in their own way.

The term terrorism and human rights was interesting; used this way, rather than the reverse, terrorism seemed to be preferred before the concept of human rights. Terrorism represented a threat to human rights and not the opposite.

It was time to talk about human-rights education for States, making them aware of their opportunities and responsibilities.

ASBJORN EIDE, Subcommission Expert, said there were three questions on the report on terrorism. One was a definition, another was whether it was a human-rights issue, and the third was, if it were a human-rights issue, what could be done.

It was agreed that it was difficult to come up with a definition. What was a terrorist act? What was the difference between a criminal act and a terrorist act? Was there a repeat element, or could a terrorist act be a single act? With regard to the actors, it could on one hand be Government-linked elements, working either inside or outside the country, or it could be non-State actors. The subject could also be linked by the targets -- innocent victims versus combatants or police.

Clearly, this had an impact on human rights. But could the actors be held accountable under human-rights law? That was the difficult part of the issue. States were being held accountable under human rights law. But what about non-State actors, could they be held accountable under human rights laws? They could and should be held accountable under domestic penal law and under universal jurisdiction and under international criminal tribunals. So there were several instruments already in place. When acts were taken by State actors, there were already a wide array of mechanisms. There must be awareness of the misuse of this debate on terrorism. Governments had been neglectful themselves on the issues of human rights -- a minority group that was mistreated could lead to both sides engaging in acts of terrorism. Sometimes it was a State’s own doing, not always, but sometimes.

KALLIOPI KOUFA, Subcommission Alternate Expert, said she recognized that certain questions in her report were controversial. She would consider some of these questions in the future.

FRANCOISE JANE HAMPSON, Subcommission Expert, said a question had been raised about reservations to human-rights instruments. The Convention on the Rights of the Child did allow reservations, but if a treaty excluded reservations, that was the end of the matter. She agreed with Ms. Warzazi's concerns about reservations. On sovereignty, the State could not use its sovereignty to do whatever it wanted in relation to human rights.

TEIMURAZ O. RAMISHVILI, Subcommission Expert, thanked various Experts for their comments and concrete suggestions. Professor Kartashkin would be present next year to take part in the debate. The Subcommission should help bring about a general recognition of international human-rights standards. The Subcommission had the possibility to participate openly with Governments and NGOs to this end. The participation of NGOs was also appreciated. The Subcommission should allocate sufficient time for the discussion of reports presented during its sessions.


Rights of reply

SAAD HUSSAIN (Iraq), speaking in right of reply, said it was believed that statements made by NGOs would be objective and impartial, but this was not the case. There were people who were funding NGOs who were against Iraq. It was known that the United States had provided $97 million in a campaign against Iraq, and perhaps Interfaith International had benefited from that. But Iraq was being bombed every day. There was international collusion against Iraq.

AHMAD AL-HADDAD (Bahrain), speaking in right of reply, said Bahrain had endeavoured to make its people the basis for all development policies. This was the target because this was the way to help people advance. The delegation thanked the Chairman and others for having welcomed Bahrain in the human-rights sector. The promotion and protection of human rights would continue to be pursued by the country.

TEHMINA JANJUA (Pakistan), speaking in right of reply, said Indian GONGOs (Government-organized NGOs) continued to spew hatred against Pakistan. As predicted by Pakistan under a previous item, they had used every opportunity to hurl abuse against Pakistan at the behest of their paymasters. They came here in hordes from India, they spread falsehoods and distributed documents which demonstrated nothing but their deep hatred for Pakistan. It was a well-known fact that they had been sent here with the express purpose of blurring the distinction between the genuine struggle for self-determination of the Kashmiri people and terrorism, and to make vicious and insulting statements against Pakistan. Did India or its GONGOs have the credentials to speak of terrorism when the Indian State itself ran one of the most sinister and extensive terrorist machines in the world? The lobbies outside this hall were littered with the most offensive and scurrilously fabricated material against Pakistan. It had been placed the
re by these GONGOs. In one of these pamphlets, Pakistan's national flag had been defaced.

SHARAT SABHARWAL (India), speaking in right of reply, said that Pakistan would do better to engage in retrospection rather than allegations. India asked: How long would Pakistan cover up its terrorist policies in Jammu and Kashmir?

TEHMINA JANJUA (Pakistan), in a second right of reply, said the fact that the delegation of India had taken the floor to support GONGOs showed that they needed to support the people they were paying.

Action on resolutions and decisions

In a resolution (E/CN.4/Sub.2/1999/L.16) adopted by a secret ballot of 14 in favour and 5 opposed, with 5 Experts abstaining, on the death penalty, particularly in relation to juvenile offenders, the Subcommission condemned unequivocally the imposition and execution of the death penalty on those aged under 18 at the time of the commission of the offence; called upon all States that retained the death penalty for juvenile offenders to commit themselves to abolishing the death penalty for those aged under 18 at the time of the commission of the offence; called upon all States that retained the death penalty for refusal to undertake military service or for desertion not to apply the death penalty where the refusal to undertake military service or the desertion was the result of conscientious objection to such service; called upon all States which retained the death penalty and did not apply a moratorium on executions, in order to mark the millennium, to commute the sentences of those under sentences of death on 31 December 1999 at least to sentences of life imprisonment and to commit themselves to a moratorium on the imposition of the death penalty throughout the year 2000; requested the Commission on Human Rights to reaffirm its resolution 1999/61 at its fifty-sixth session; and requested the Secretary-General to report to the Subcommission at its fifty-second session on the number of executions of juveniles carried out between the adoption of the present resolution and the start of the next session of the Subcommission and on the number of executions generally carried out in the same period.

A proposed amendment that would have deleted part of a preambular paragraph from the resolution was defeated by a secret ballot of 11 in favour of deletion and 12 opposed, with 2 Experts abstaining.

The preambular paragraph, which was retained, noted information contained in an annex to the resolution according to which, since 1990, 19 executions of juvenile offenders had taken place worldwide in six countries, the Islamic Republic of Iran, Nigeria, Pakistan, Saudi Arabia, the United States of America, and Yemen, of which 10 had occurred in the United States, and that, in 1998, only the United States was known to have executed juvenile offenders. The proposed amendment would have deleted the references to specific countries, except for the final mention of the United States.

FRANCOISE JANE HAMPSON, Subcommission Expert, said it had been reported in an Iranian newspaper that a juvenile offender was executed this year for a crime he had committed in 1994. When executed, the offender was aged 20, but he had committed the crime when he was 15.

FARHAD MAMDOUHI (Iran) said it was not fair making references like that without consulting the Government concerned. Ms.Hampson should be sure that the translation of the newspaper she quoted was reliable and correct. In Iran, juvenile offenders received special treatment. The first juvenile correction house had been established in 1969 in Tehran. Juveniles were separated from the general population. Based on the laws of the country, every human had the right to life, and these rights should be respected and protected. Application of capital punishment in Iran was limited to those cases that were the most serious crimes. Before presenting these kinds of resolutions, States should be able to investigate and respond.

TEHMINA JANJUA (Pakistan) said it was opposed to the imposition of death penalty on juvenile offenders. Pakistan was a party to the Convention on the Rights of the Child. The Government had introduced a bill proposing amendments to existing laws to bring them into conformity with the provisions of the Convention on the Rights of the Child. In a preliminary examination of the text of the bill in the Senate, the Senators called for the age of imposition of the death penalty to be raised to 18 years of age.

There had been no execution of a juvenile offender in Pakistan for the last seven years. There were not sufficient grounds for a reference to Pakistan in the resolution. National legislation was already under way to correct the situation.

TURKI AL-MADI (Saudi Arabia) said the phrase that referred to documented information from the Special Rapporteur had nothing to do with the subject here. Mrs. Hampson had gotten information from 13 NGOs. The information was not documented and was not confirmed by the Special Rapporteur. There was a law in the Kingdom of Saudi Arabia that banned the murder of children under the age of 18. The Government’s report to the Committee on the Rights of the Child had not yet been discussed. It had been submitted, but had somehow been leaked, so there was something wrong with the procedure here.

JOHN D. LONG (United States) said the United States viewed these proceedings of the Subcommission with grave concern. Resolution L16 was an example. The fundamental concern was with the Subcommission's mandate. The Subcommission must serve the needs of the Commission on Human Rights, as the Commission defined its tasks. The Subcommission should be conducting research and giving expert advice. The Commission had not asked the Subcommission to expend its resources on many of the items tabled here. Members of the Subcommission could be a valuable resource for the Commission. But this could only be true when the Subcommission operated within the parameters set by the Commsion and at funding levels appropriate for this purpose. Regarding the death penalty, the United States already had explained its position to the Commission. The Subcommision had flagrantly violated its warrant and had abused its own properly circumscribed powers by attempting to usurp the legitimate authority of the Security Council.
The United States also took strong exception to the fact that the Governments which were directly implicated in this manner did not have the opportunity to put their views on the record.

MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said the statement just heard deserved an absolute rejection. What was just heard meant that some kind of charge had been lodged against the Subcommission, and that was an inappropriate judgement. In no way was the Subcommission doing something it was not authorized to do.

FAN GUOXIANG, Subcommission Expert, said he fully respected the declaration just made by the US Government and its position. If this declaration had been made at the beginning of agenda item 2, before the voting took place, before the voting on L.16, it might have had a different impact.

LOUIS JOINET, Subcommission Expert, said not only was there no respect for the Subcommisison in the comments from the United States, but that those who had been hear the longest would remember that once the leader of that delegation had given a press conference to say that the body should be abolished.

Discussion then centred on draft resolution (E/CN.4/Sub.2/1999/L.17), although the meeting adjourned without action being taken on the draft.

Under the draft resolution, if approved, on continuing of obligations under international human rights treaties, the Subcommission would appeal strongly to all States that had not yet done so to become parties to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as other international and regional human rights treaties; would encourage the full participation of all member States in the United Nations human rights system, as well as in the regional human rights systems in their respective regions; would invite all States and all relevant United Nations human-rights mechanisms and procedures to pay continued attention to the importance of mutual cooperation, understanding and dialogue in ensuring the promotion and protection of human rights; would encourage the Government of the Democratic People's Republic of Korea to continue to assume its international human-rights obligations under the International Covenant on Civil and Political Rights, as it had done in announcing that it would soon present its second periodic report to the Human Rights Committee; would urge the Government of Jamaica to re-accede to the Optional Protocol to the International Covenant on Civil and Political Rights; would urge the Governments of Guyana and Trinidad and Tobago to accept the jurisdiction of the Human Rights Committee under the Optional Protocol with regard to all claims of violation of the International Covenant on Civil and Political Rights; and looked forward to the decision of the Human Rights Committee, which would consider whether the reservations made by Guyana and Trinidad and Tobago were consistent with their broader treaty obligations; would urge the Government of Trinidad and Tobago to resume its obligations under the American Convention on Human Rights; would urge the Government of Peru to continue to accept the jurisdiction of the Inter-American Court of Human Rights; would request the Secretary-General to submit a report on the status of withdrawals and reservations with regard to international human-rights treaties to the Commission on Human Rights and the Subcommission; and would decide to recommend that the Commission on Human Rights consider the implications of withdrawal from, or limitation of the scope of, international treaty obligations at its next session.

MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said regarding resolution L.17 that it illustrated the reservations one might have about using thematic resolutions for this purpose. This resolution was selective; it couldn't cover all types of cases. The most worrying point was that there were different situations referred to which had the nature of casting negative dispersions by name. Three separate votes were needed on this resolution.

FRANCOISE JANE HAMPSON, Subcommission Expert, said the five States named here had all signed human-rights treaties and then withdrawn. The five States named also had sought to withdraw following criticisms of their compliance with the treaty bodies. This resolution was even-handed. Other States were moving in the right direction. Many had signed human-rights treaties and were moving in the right direction. The five States named here, however, were moving in the wrong direction. The resolution did not question the legality of the withdrawals. That was for the treaty body. The question here was the promotion and protection of human rights.

FISSEHA YIMER, Subcommission Expert, said it was unclear whether this resolution even belonged within item 2. This resolution dealt with two categories of States -- those who had not signed human-rights instruments, and those who had and had withdrawn. But only the ones who had withdrawn had been named. Why should the others who had never adhered to human-rights instruments get away scot free? States would say that it was better to not adhere in the first place, and that could have a political cost internationally. It wouldn't be difficult to name the countries that had never adhered; they could be named in half a page. When would withdrawal be justified, or would it never be justified? If it were never justified, why did the drafters of the instruments provide for the possibility of withdrawal?

EL-HADJI GUISSE, Subcommission Expert, said States had the right to adhere to international conventions, but they also had the right not to. The right to withdrawal from a convention was also recognized. It was not only a question of the promotion of human rights, it was a matter of a principle that had lasted a very long time with respect to international conventions.

SOLI JEHANGIR SORABJEE, Subcommission Expert, said the right of withdrawal was expressly authorized. If it was contrary to human rights to withdraw, why was it allowed? The last preambular paragraph of the draft resolution was too wide. It amounted to dictating to States what they should do. He was uncomfortable with the resolution.

FRANCOISE JANE HAMPSON, Subcommission Expert, said the draft resolution was under agenda item 2 because in all these cases, the State only had withdrawn on account of an adverse finding. About the States that had never ratified, the resolution appealed strongly to States to ratify treaties. Many of those States were moving in the right direction. The thing about withdrawal was that those States were moving in the wrong direction. It was not the Subcommission's job to say that they legally should or should not withdraw, but it could point out that withdrawal was moving in the wrong direction.

FAN GUOXIANG, Subcommssion Expert, asked, concerning the partial withdrawal from human-rights mechanisms and treaties, did it have any direct link with the violation of human rights? This was the crux of the matter. The focus of this draft resolution seemed only to seek a pretext to do name-calling. Here a topic had been selected just to name some countries. This seemed to be the essence of the resolution.