SUBCOMMISSION ADOPTS RESOLUTION ON RESPONSIBILITY, REPARATION FOR VIOLATIONS DURING SLAVERY AND COLONIAL PERIOD

Subcommission on the Promotion
and Protection of Human Rights
53rd session
6 August 2001
Morning


Carries on with Debate on Administration of Justice


The Subcommission on the Promotion and Protection of Human Rights adopted unanimously this morning a resolution on recognition of responsibility and reparation for massive and flagrant violations of human rights which constituted crimes against humanity and took place during slavery and the colonial period.

Through the measure, the Subcommission requested all the countries concerned to take initiatives which would assist, notably through debate and the provision of truthful information, in the raising of public awareness of the disastrous consequences of the periods of slavery and colonialism; requested that a process of reflection be initiated in a concerted fashion on the appropriate procedures which would enable the guarantee of the implementation of this resolution; and decided to continue consideration of this question at its fifty-fourth session.

Subcommission Expert Paulo Sergio Pinheiro, the panel's representative to the Preparatory Committee for the upcoming World Conference against Racism, is expected to present the resolution to the Preparatory Committee which is meeting concurrently at the Palais des Nations.

The Subcommission also carried on with its annual discussion of matters related to the administration of justice, hearing from several non-governmental organizations charging violations of international standards of justice in various countries and regions, and from several of its Experts.

The International Islamic Federation of Student Organizations said the Subcommission should have an agenda item on administration of justice in conflict areas, among other things to review possibilities for providing justice to those whose human rights continued to be violated

Subcommission Expert Leila Zerrougui said discrimination affected the administration of justice as a whole; that two studies had been carried out in the past on this subject by the Subcommission, the last published in 1982, and 20 years on; and discrimination was still a widespread problem, with each region of the world having its own particular type of discrimination of justice in the courts, the police stations, and prisons.

Among those contributing to the morning's debate were the International Human Rights Association of American Minorities; the International League for the Rights and Liberation of Peoples; Pax Romana; the International Institute for Peace; the International Commission of Jurists; and the Association for World Education.

Subcommission Experts Asbjorn Eide, Iulia-Antoanella Motoc, and Erica-Irene A. Daes delivered statements, along with a representative of the Democratic People's Republic of Korea.

Malaysia and China spoke in exercise of the right of reply.

The Subcommission will reconvene in plenary at 10 a.m. on Tuesday, 7 August. Today's afternoon meeting will be given over to the Subcommission's working group on administration of justice.

Action on Resolution

In a resolution on recognition of responsibility and reparation for massive and flagrant violations of human rights which constituted crimes against humanity and took place during slavery and the colonial period, the Subcommission requested all the countries concerned to take initiatives which would assist, notably through debate and the provision of truthful information, in the raising of public awareness of the disastrous consequences of periods of slavery and colonialism; requested that a process of reflection be initiated in a concerted fashion on the appropriate procedures which would enable the guarantee of the implementation of this resolution; and decided to continue consideration of this question at its fifty-fourth session.

Statements

M. IHRAAM, of the International Human Rights Association of American Minorities, said the Universal Declaration of Human Rights was proclaimed as a common standard to promote respect for the freedoms and fundamental rights contained therein. The outcome had been the recognition of human rights in the national legal systems, and the rendering of international human rights standards and legal norms supreme over domestic laws. In its very essence, human rights laws were recognized by the nation-state. They were not granted, but promoted and protected. The supremacy of human rights laws had been subsequently recognized in several human rights instruments and declarations. For instance, even in the case of an armed conflict, either of non-international character or of international character, the humanitarian principles as contained in the four Geneva Conventions constituted the foundation of respect for the human person.

Despite the developments, the administration of justice in some societies, especially in the areas of armed conflicts, remained elusive. This had led to the emergence of two broad categories of the administration of justice at the international level -- the international war crimes tribunal and the emergence of universal jurisdiction as contained in the statute of the International Criminal Court. The application of the universal jurisdiction through the International Criminal Court was necessary not only to prevent situations from escalating into full-fledged armed conflicts, but also to take cognisance of the existing situations of armed conflicts, such as the Indian-occupied Jammu and Kashmir, where more than 700,000 armed forces had been deployed to crush the struggle of the Kashmiri people to realize their right to self-determination. The presence of an International Criminal Court would make it feasible to prosecute those political and military figures that had been and were instrumental in systematically violating the most fundamental human rights of the people, especially in conflict situations and those of occupation, like Jammu, Kashmir and Palestine. It would allow for the criminalization of those people who were hiding themselves behind the shield of national sovereignty.

ORETTA BANDETTINI DI POGGIO,of the International League for the Rights of Liberation of Peoples, said Israel had had a state of emergency since its birth in 1947. The Commission on Human Rights had asked Israel to change this situation. In this case there was a de facto conflict -- on the one hand a well-trained army, on the other a civilian population that was rebelling because its rights had been totally trampled under foot and it was trying to survive.

The question was whether it was justified to extend the emergency situation to all the occupied territories, where Israel actually should be protecting the population and respecting the population's rights according to the Geneva Conventions? Israel's occupation of the territories was questionable, to put it mildly, as was the continuing state of emergency, which resulted in such problems as hindrances to urgent medical assistance. Persons had died of heart attacks and a pregnant woman had died when Israel troops had denied her access to a Red Crescent unit just across the border. In addition there were Israeli attacks against the population for which there was absolutely no justification and in which utterly innocent people were killed. The Subcommission must help to bring to an end this enduring nightmare.

NANCY CHIN and MR. EGIDE, of Pax Romana, said people sentenced to death in Japan underwent psychological torture because they were never told the date of their execution. They did not know if the date would be in days, months or years. There were about 110 people awaiting the death penalty in Japan, and the longest serving prisoner on death row had been there for 29 years. Families were only notified after the fact. The prison law in Japan had not changed since 1907 -- there were need for reforms and more transparency. The Subcommission was urged to review the situation there.

The Internal Security Act in Malaysia was used to hold people without trial. It was put in place in the 1960s to put down communist movements. But a judge this year said the Parliament should review the act today -- that it was an act that could put people behind bars and strip them of their rights. There was certain controls over the press as well. Malaysia had not ratified most of the United Nations treaties. The Subcommission was asked to review the situation in Malaysia.

In Zimbabwe, it was alarming to hear of the amnesty given for politically-motivated crimes in 2000. This had contributed to the current situation where it could be argued that there was no law, and that there was a culture of violence. In Zimbabwe, freedom of expression was limited. Local journalists who reported the abuses of human rights were harassed.

MUHAMMAD SAFI, of the International Islamic Federation of Student Organizations, said the United Nations Declaration on the Protection of Persons from Enforced Disappearances stated that no circumstance justified enforced disappearances. According to Amnesty International, a large number of disappearances documented in its 1993 report on Jammu and Kashmir remained unresolved and their families lived with great uncertainty and pain. It was owed to the world and to the parents of those Kashmiris who had disappeared to have these cases resolved. In Srebrenica, a supposed United Nations safe area, these had been an awful massacre, a scene from hell; it was necessary to seek an effective and direct role in ongoing peace efforts under way in various situations around the world so that there could be no further Srebrenicas.

The Subcommission should have an agenda item on administration of justice in conflict areas, among other things to review possibilities for providing justice to those whose human rights continued to be violated. Silence was the best friend of violations -- of such atrocities as disappearances and extra-judicial executions. Some situations continued to fail to attract sufficient attention; the Subcommission's Experts, as independent experts, had an obligation to speak out on them.

LEILA ZERROUGUI, Subcommission Expert, said discrimination affected the administration of justice as a whole. Two studies had been carried out in the past on this subject by the Subcommission. The last one was published in 1982, and 20 years on, discrimination was still a problem. It was widespread, and each region of the world had its own particular type of discrimination of justice -- in the courts, the police stations, and prisons. It generally affected the most vulnerable segments of society, and those in prison. People were discriminated against because of their race, their gender, their age, and their sexual preference. The different reports within the United Nations on a country-by-country basis detailed the extent of the problem.

In prisons, the victims were often subjected to torture. Police behaviour seemed to be based on discrimination. Appropriate legal protection was of the utmost importance, and could only be achieved with the adoption of far-reaching resources. Women were the most discriminated against -- they were unrepresented in the entire administration of justice. It was argued that since their rates of criminality were not high, there was no need for equal representation. It was hoped that the Durban Conference would take effective measures to ensure protection for the vulnerable from discrimination. This question deserved specific attention from the Subcommission. Including the matter on the agenda would allow the Subcommission to study this further.

ASBJORN EIDE, Subcommission Expert, said this was an extremely important subject and the Subcommission needed to pay very close attention to it; very competent analysis was needed of the issues involved. He had not seen the relevant working paper but hoped he soon could. There had been a study on the topic in the mid-1980s, and it was necessary to come back to it, because the problem persisted. He hoped the working group would pursue the matter further and that the Subcommission as a whole would be following it up.

IULIA-ANTOANELLA MOTOC, Subcommission Expert, said she agreed with the proposal of Ms. Zerrougui on adding discrimination within the administration of justice to the Subcommission's agenda. In societies in transition, problems arose in the administration of justice. This was seen in Latin America in the 1980s, particularly in Argentina and Chile. Several African States had established Committees of Truth and Reconciliation to help deal with this issue among others. In Eastern Europe in the 1990s, Czechs enabled themselves to look into the files of the former secret police and understand the abuses of human rights in the past. In South Africa, there was amnesty for the violators who admitted the truth. Were these alternatives to judicial proceedings? It was important to speak of impunity. It was essential for societies which had suffered to understand what had happened.

ERICA-IRENE A. DAES, Subcommission Expert, said she supported Mrs. Zerrougui's recommendation that a study be undertaken on discrimination involving the administration of justice; a member of the Subcommission should be appointed to carry out this task. There was very reliable information and data that non-discrimination standards were not applied to indigenous people in many places around the world; frequently they were maltreated during detention and while in prison; they also were often brought before the courts without interpreters. Many had been found guilty of crimes and did not even know for which crimes they had been convicted. Such a study should take these problems into consideration.

MR.EIDE, Subcommission Expert, said indigenous peoples faced special problems, and it was hoped that they would be included in the study on the subject of discrimination within the administration of justice.

HASSAN SHARIF, of the International Institute for Peace, said that in Pakistan a Prime Minister had been forced out of office by generals; the democratic process had again been derailed for the fourth time in five decades. He was concerned for the millions of Pakistanis who had been slapped again in the face in trying to realize their dreams of democracy; Pakistanis today asked why they should bother to go to the polls to vote if their electoral will could be slapped aside by a general. What would happen if future Pakistani generals did not like this particular general's version of "democracy" five years down the road? Would the military interventions ever stop?

His father had been incarcerated and had been treated like a prisoner of war; and he had contacted international bodies to try to ensure fair treatment of him. As a result he had begun to think about the many others around the world who also suffered maltreatment and did not have the means to contact world leaders for help. Kashmiris came first on the list -- they lacked many human rights, including the right to determine their own future. Meanwhile world leaders spent their time and energy talking about economic matters while people suffered bloody and miserable fates. Was the Subcommission to allow this to continue?

FEDERICO ANDREU, of the International Commission of Jurists, said it was welcome news to see that talk on studying discrimination in the administration of justice included military tribunals. Military tribunals had long been a subject of concern of human rights workers and the Subcommission. The subject was wide-ranging and complex, but important in the context of the administration of justice. A study should consider the right to an impartial and independent tribunal. It should identify the principles that governed that competence structure of the tribunals. Could the military enjoy freedom in action of trials since they depended on their superiors within the military hierarchy. The practise of civilians being judged by military courts was incompatible. In international law, a consensus was growing that the practice should be forbidden. When civilians were tried by military courts, they were deprived of the natural judge and of the right of due process. Military tribunals should be solely related to military offenses. Military courts were the arms of military power. The civilian had to prevail over the military. The International Commission of Jurists was drafting its own study on the matter, and would hand it over to the proper Subcommission expert when it was completed.

DAVID LITTMAN, of the Association for World Education, said Egypt's state of emergency legislation, in force over the past 20 years, recently had been extended for three more years, and under them any civilian could be referred automatically to a military court by presidential decision if the case was considered to involve an "act of terrorism". This system allowed convictions on totally inadequate evidence, as had occurred to Dr. Neseem Abdel Malek, a Coptic Christian. The Subcommission was appealed to read opinion no. 10/1999 of the Working Group on Arbitrary Detention, which referred to the matter. Dr. Malek had been condemned to 25 years imprisonment without appeal on a bribery allegation based on a statement made by a certified insane killer and Islamist terrorist who later stated that he would target "infidels". The charges were patently false.

Following an urgent appeal by the Working Group based on Dr. Malek's deteriorating health, the sentence had been reduced to 10 years. The Egyptian Government should reconsider the harsh position of the military court; Dr. Malek had served nearly four years in prison and should be granted a full pardon, as he was innocent.

KIM YOUN HO (the Democratic Republic of Korea) said colonialism and slavery were the root causes of the violation of human rights. These actions against other countries had caused immeasurable suffering from millions of people. Without punishment, the world could not hope to eradicate the problem. Certain attempts to bury past problem continued today. Some countries distorted or denied their past history by ignoring this history in text books. Countries should show the political will and commitment and own up to their past and not commit the same crimes again. Millions of Koreans were victims of the horrible colonial rule, included many who were used as sex slaves by the Japanese soldiers.

Rights of Reply

A representative of Malaysia, speaking in right of reply, said the statement by Liberation and the Asian Buddhist Conference for Peace and the statement by Pax Romana had touched on the Internal Security Act, a Parliamentary act passed to protect security of the nation against undesirable elements; one right of reply had already been made on the matter. The Internal Security Act continued to be a relevant instrument in a multi-cultural, multi- linguistic country; it had not been simply intended to fight communist insurgencies; it was aimed at ensuring social and economic harmony in the country. The Internal Security Act was not arbitrarily applied, as alleged by the non-governmental organizations. Malaysia rejected all claims of torture and ill-treatment under the Act, and it was not true that detainees were denied visits or appropriate representation.

The representative of China, speaking in a right of reply, said a non-governmental organization had made groundless accusations against the Chinese Government. The Falun Gong movement was an institution that endangered life and society. China outlawed the group to protect the Chinese people. This was something any government would do.


CORRIGENDA

In press release HR/SC/01/5 of 2 August, the first paragraph on page 2 should read as follows:

Experts also discussed the question of human-rights violations in various countries and territories, including occupied Palestine, northern Cyprus, Iraq (as a result of the international embargo imposed against the country), China, the United States, Togo and Kashmir.


In press release HR/SC/01/3 of 1 August, the statement of the representative of Bahrain on page 10 should read as follows:

SAEED AL-FAIHANI (Bahrain) said a strengthening of human rights was of concern to the international community. The international community was aware of the importance of these rights, and that was why it defended them -- to ensure a better future. Bahrain attached importance to the contributions of the Subcommission. The World Conference against Racism was a historic opportunity for the international community to reaffirm its will to defend human rights. All forms of discrimination should be put to an end. That was why it was hoped that the international community would come up with a Plan of Action. In Bahrain, the Head of State had tried to strengthen the rule of human rights, to meet the expectation of the people. He said that it was worthwhile to ensure that the Plan of Action be implemented. Bahrain also attached great importance to freedom of expression -- that was important to living in a democracy. The Head of State ordered an amnesty and the release of all persons in custody for offences against national security, and extended the amnesty to Bahrainis living abroad. Furthermore the State Security Law was repealed, and the Court established by article 185 of the Penal Code had been abolished. Further, judicial independence had been ensured by the creation of a judicial magistrate.


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