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SUBCOMMISSION CONCLUDES CONSIDERATION OF ADMINISTRATION OF JUSTICE, BEGINS REVIEWING THE RIGHT TO FREEDOM OF MOVEMENT
21 August 1998
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MORNING
HR/SC/98/26
21 August 1998
The Subcommission on Prevention of Discrimination and Protection of Minorities this morning concluded its discussion on the administration of justice. Speakers called on all countries, who had not yet done so, to ratify the Statute of the International Criminal Court and non-governmental organizations (NGOs) welcomed the draft Convention on Forced Disappearances.
Several NGOs referred to the policies of the Indian Government in Jammu
and Kashmir, and also accused Colombia and the Federal Republic of Yugoslavia of serious alleged violations.
Tunisia, Yemen, and Eritrea took the floor in right of reply to refute allegations made by NGOs yesterday concerning their human rights record.
The Subcommission then heard allegations from NGOs concerning violations of the freedom of movement in a number of countries including China, Mexico, Colombia, and Morocco. Issues raised by NGOs included internal displacement alleged in Mexico; resettlement or population transfers which were said to be taking place, among others, in the autonomous regions of China and in the Western Sahara; and the right to asylum in Europe, specifically in Switzerland - which was being downgraded according to one NGO.
Subcommission expert Asbjorn Eide addressed the meeting saying that the alleged right to unilateral secession usually resulted in population displacement. Ethnically 'pure' States were a direct violation of human rights and States should recognise the value of ethnic pluralism, he added.
Subcommission experts Mustapha Mehedi and David Weissbrodt also addressed the meeting. Representatives of Spain and Albania made statements and the Office of the High Commissioner for Refugees also spoke.
The following NGOs addressed the meeting: Franciscans International, Tunisian Mothers Association, International Human Rights Association of American Minorities, World Muslim Congress, International Peace Bureau, Latin American Federation of Associations of Relatives of Disappeared Detainees, Transnational Radical Party, American Association of Jurists, Society for Threatened Peoples, Centre Europe-Tiers Monde, International Association of Democratic Lawyers, International Educational Development, North South XXI, and Worldview International Federation.
The Subcommission will reconvene at 3 p.m. this afternoon when it will vote on its agenda items concerning the human rights of women, contemporary forms of slavery, and the rights of indigenous peoples. It will also consider a declaration on the situation in Kosovo.
Administration of Justice, Statements
JOHN QUIGLEY, of Franciscans International and the Dominicans, said the Rome Statute of the International Criminal Court was a major step in forging a missing link that could provide the international legal order with power to exercise jurisdiction over persons for the most serious crimes of international concern; the Subcommission was urged to investigate practical ways of promoting follow-up and implementation of this Statute. Not a week went by without hearing the tragic news of a massacre perpetrated against the civilian population in Colombia - last year alone Colombian human rights organizations documented 185 massacres. In the midst of a human rights nightmare, successive Colombian Governments had refused to take decisive action: why? Social justice was not profitable for the transnational corporations, the foreign Governments’ interests and the greed of local politicians who benefited from the terror. There was overwhelming evidence to show that the vast majority of human rights abuses were committed by State agents or paramilitary forces, and for those abuses the Colombian Government was accountable. The Colombian Government was recommended, among other things to enact legislation to make forced disappearances a criminal offence and to take measures to disband the paramilitary groups. The Subcommission was requested to appoint an expert to study the issue of the privatization of national security and prepare a report on transnational corporations, the privatization of national security and human rights.
ASBJORN EIDE, Subcommission expert, said the work under this agenda item had been effective and goal-oriented; but the needs were continuously there, and new things needed to be done; the draft convention on disappearances was a major achievement; it was clear that there were weaknesses in domestic law related to disappearances and something had to be done to release the relatives of disappeared persons from the living hell they endured. He hoped the Commission on Human Rights would give the draft declaration top priority and that it soon would be adopted. As for privatization of prisons, he had great difficulty understanding how such a process should be reconciled with international standards of human rights; under no circumstances could States absolve themselves of the duty to ensure that prisoners were properly treated. The Subcommission must stay up to date on the issue and perhaps develop guidelines to prevent any erosion of the administration of justice through privatization of prisons and the trend towards privatization of security concerns in general. The Subcommission should furthermore keep a close eye on the administration of justice as developed by the new International Criminal Court.
SAIDA AGREBI, of Tunisian Mothers Association, representing FEMNET, said an independent and effective justice system was a guarantee for durable human development. With regard to democracy, as the Chairman of the Subcommission had said, ready-made models should not be imported in Africa, and African NGOs had to become involved in dialogue, and have as a point of reference the Organization for African Unity (OAU). With the advent of 7 November 1987 in Tunisia, the mechanisms of the administration of justice had undergone reforms that included: reinforcement of the primordial role of the Superior Council of the Judiciary; creation of new jurisdictions; creation of new mechanisms in the Ministry of Justice such as the Unit of Human Rights; strengthening of the principal of free justice, by abolishing costs linked to court procedures. The statement had been rewritten to underline the pride of the speaker in belonging to the new Tunisia, a Muslim country known for its openness and avant garde policies where rights of women were a model for good; and this was why the false information that had been given about Tunisia was deplored. The speaker thanked the Chairman of the Subcommission for his objective vision and precious support to NGOs.
MAJID TROMBOO, of International Human Rights Association of American Minorities, said the organization had in the past expressed and continued to express deep concern about gross and massive violations of human rights perpetrated on the orders of the Government of India or sanctioned by it on the people of Indian-occupied Jammu and Kashmir; credible NGOs had for years reported such atrocities as murder, torture, arbitrary arrests, molestation and rape by Indian occupying armed forces -- all because Kashmiris demanded the right to determine their own future. India did not spare even Kashmiri human-rights defenders, they had been killed. On 12 August of this year, two of them who were prepared to testify before the Subcommission were prevented from doing so because Indian authorities refused to allow them to board the KLM flight from New Delhi to Geneva although both had valid Swiss visas. Bearing in mind the specific country situation and the circumstances, it was necessary to recall that former Subcommission expert Stanislav Chernichenko had called for in his expanded working paper on "gross and massive violations of human rights perpetrated on the orders of Governments or sanctioned by them as an international crime"; holding India responsible for such an international crime might deter Governments from such acts.
GHULAM MUHAMMAD SAFI, of the World Muslim Congress, said that once law enforcement personnel were granted impunity they indulged in the worst human rights abuses. The worst human rights violations took place in situations of declared or de facto states of emergency: the Indian-occupied territory of Jammu and Kashmir was one such place. In Jammu and Kashmir, the judiciary had ground to a halt. The National Human Rights Commission was not allowed to receive complaints about incidents that were more than a year old. In fact, this was a device to provide immunity to the occupation forces operating in Indian-occupied Jammu and Kashmir. Emergency legislation was one thing, but it was quite different when the whole system of justice was corrupted to facilitate human rights violations. In addition, in an effort to remove all avenues of justice, the police had been instructed not to register cases of human rights violations in Kashmir. What was seen in Indian- occupied Kashmir was a well-trained, superbly equi
pped occupation force of tremendous size, let loose to break the will of the occupied people of Kashmir in a deliberate and systematic policy of repression. This all constituted a gross and systematic violation of human rights. In Kashmir, the judicial system had not only been corrupted by India, it had been mutilated beyond recognition; the Subcommission was urged to adopt a resolution on this matter.
S. GHULAM NABI FAI, of the International Peace Bureau, said he had reservations about making gross and massive violations of human rights an international crime. What would ensure that such a standard would be applied fairly -- it might be applied to the former Yugoslavia, for example, but would it be applied to Jammu and Kashmir? Cuba would seem a prime candidate for prosecution because it was despised by the United States, but would equal villainy practised by India in Kashmir go unpunished because of India's alluring economic and military potential? India had at this point legalized its State-sponsored terrorism in Kashmir; its occupation forces had power to shoot to kill and license to abuse people however they wished; all available evidence of India's military activity in Kashmir indicated it was systematically targeting innocent people for rape and death; draconian laws remained in effect that cowed the population. It was his humble suggestion that the Subcommission recommend to the Commission on Human Rights that the matter be referred to an international tribunal of the sort established to try Serb war criminals. As long as the international community allowed India to hide its atrocities in Kashmir, there would be no end to them; what India was doing there amounted to a war crime according to the Statute establishing the new International Criminal Court.
PAUL FRIEDRICH KIRCHER,of the Latin American Federation of Association of Relatives of Disappeared Detainees, said that year after year, the Subcommission had heard complaints from around the world on forced disappearances. For thirty years the practice of forced disappearance had become a rapidly increasing problem. In 1997, there were 63 countries with alleged cases of forced disappearances. Impunity was one of the main causes of forced disappearances. Persistence of this phenomena underlined the need to build and strengthen international instruments that prohibited forced disappearances. A convention would help to ensure the guarantees and safeguards of human rights of possible victims. In Colombia, a draft law against forced disappearances had failed and there was no domestic legislation to punish forced disappearances in Africa and Asia. The following elements of the draft convention were fundamental: that when forced disappearances were systematic, this would constitute a crime against humanity; cooperation with the monitoring committee; the establishment of an independent mechanism that could investigate the fate of the disappeared, and could search for a person who had disappeared; an easy and effective habeas corpus measure on the part of the State; and facilitating the establishment of the whereabouts of the persons concerned. This instrument was a useful tool for protecting the disappeared.
ANTONIO LUIS BULLON CAMARASA (Spain) said the follow-up report on the death penalty and the oral report submitted by Subcommission expert Louis Joinet on the Working Group on administration of justice referred to abolition by Spain of the death penalty for crimes committed in peacetime; in 1994, Spain had begun a procedure to totally abolish the death penalty; unfortunately, no reference was made in the report to the conclusion of the process, which occurred in 1995; a change made to the Constitution had abolished the death penalty for crimes in wartime as well; that had been reported in writing to the Chairman of the Subcommission. While Spain appreciated the reference made to it in the report under the rubric of "positive developments", Spain wished the information above to be reflected in the formal record of the session and to be reflected in any future reports on the topic.
MARGARITA GEGA (Albania) said that the Belgrade regime had created another hot bed of tension in the Balkans, three years after the end of the war in Bosnia-Herzegovina. The Serbian State was applying a policy of ethnic cleansing against the Albanian population of Kosovo; the massacres of the police and military and paramilitary foces were pure acts of genocide. The Belgrade regime was blatantly violating the human rights of Kosovo Albanians; it continued to ignore the recommendations of the UN and the Commission on Human Rights. The Albanian Government believed that the worsening of the situation distanced even more possibilities of a negotiated settlement. It was high time to put an end to the choice of war, and time to respect human values. Albania had constantly asked for an end to the state of war, but unfortunately these appeals had not been heeded by Belgrade. Despite difficult economic conditions in Albania, it was committed to welcoming refugees to allay their suffering. The delegation appreciated the work being done by the representatives of the Office of the High Commissioner for Refugees, the United Nations Children’s Fund UNICEF, the International Committee of the Red Cross and others. The tragedy in Kosovo was not just a human rights tragedy; it was a humanitarian disaster.
Rights of Reply
KAMEL MORJANE (Tunisia), speaking in right of reply, said there should be a frank and honest dialogue between members of the international community; he believed that Pax Christi had exceeded all limits of decency and appropriate behaviour; the representative for that organization had showed a lack of respect for the Subcommission and for Tunisia; the Chairman should have stopped a statement that had only referred in passing to human rights and was more of an attack on a State and its democratic and Constitutional character. He deplored the fact that the NGO failed to respect the minimum rules of decency and courtesy. The allegations put forward by the NGO were false and dishonest; he refused to become involved in an exercise in such poor taste. Regardless of what Pax Christi said, the country's achievements in all areas spoke for themselves.
ABLULLAH AHMED NOMAN (Yemen), speaking in right of reply, said that his delegation had listened to the statement made by International War Resisters and had heard only false statements. A national high-level committee for human rights had been created in Yemen; the Government participated in the 1997 session of the Commission of Human Rights - and the Commission had decided to stop consideration of the situation in Yemen following the efforts made by the country to promote human rights. It was to be deplored that a representative of International War Resisters had participated in the war in Yemen. The crimes that had been quoted by the NGO were criminal offenses, and the guilty parties had been tried. Regarding demonstrations, the Constitution protected this right. Since 1990, Yemen had opted for democracy and had held parliamentary elections. Yemen viewed human rights with transparency and credibility and cooperated with all human rights bodies.
AMARE TEKLE (Eritrea), speaking in right of reply, said that an Ethiopian representative of African Association of Education for Development had levelled baseless allegations against Eritrea; some of the allegations were merely distortions, others outright lies. There was a reference to a centre for injured soldiers which was actually run by reputable internationals and had been visited by international agencies; it had also provided a report of the incidents there had been issued and accepted. An Eritrean group had been referred to that did not exist except in the imagination of the speaker; the prisoners referred to also did not exist. The statement was cheap and in bad taste in that and other ways. It was evident that the libellous statement was based on the clumsy idea that if a lot of mud was thrown some of it would stick.
Right to Freedom of Movement, Statements
AFRIM DJONBALIC, of Transnational Radical Party, said that it wanted to draw attention to the displacement of people in the autonomous regions of the People's Republic of China: Tibet, eastern Turkestan and inner Mongolia. In order to transform these regions into Chinese provinces, millions of Chinese were being settled there; as a result of this policy, the Chinese Government was depriving the people of the areas of their right to self-government, and violating the internationally accepted rules of international law which prohibited the transfer of citizens to and from occupied territories, and which protected the cultural, economic and social rights of these peoples. In these regions, about 90 per cent of positions in public life were occupied by Chinese. Mongols, Tibetans and Uighurs were treated as foreigners and there were different standards for these peoples in economic, social and political rights, compared to those of Chinese origin. The population policy and other serious violations of human rights towards Tibetans, Mongols and Uighurs threatened them with disappearance. The Subcommission was urged to pronounce itself against these policies of the People's Republic of China.
VICTORIA MILLER, of the American Association of Jurists, said that in Chiapas, Mexico, thousands had fled the violence; the problem was increasing and impunity for violence committed by paramilitary groups was widespread; that added to population movements; the situation of the displaced was very serious; they were ill-fed, they were harassed by guards; they had been unable to harvest their fields; when they tried to return home they were harassed. The Mexican Red Cross had refused to help them out of consideration for the Government and so an international presence was needed; the International Committee of the Red Cross had come but other international groups and observers had been expelled from the area because the Government did not want objective witnesses to what was happening. Disarmament of the para-militaries might help the displaced persons to return. In Colombia, forced displacement of indigenous and peasant communities had intensified; land ownership was increasingly in the hands of speculators; farmers were of no interest; the areas of growth were oil exploitation and such activities as telecommunications and biological and genetic research; there had been massive asset-stripping of land, while heavy para-military presence had caused massive population displacements, most of the victims being women and children. The Subcommission must act on this situation.
TEUVEZH KAZANOKO, of Society for Threatened People, said that the history of the Adygh (Circassian) diaspora outside the Russian Caucuses originated from the ninth century. According to unsubstantiated sources, there were between 3 to 4 million Circassians living today in Turkey; they were subjected to prosecution and repression simply for being Circassian. To date, this problem had not been considered by the international community. Interested organizations should begin to consider this issue. The tend to return to the Caucases was predominant among the diaspora, but there was the difficult economic situation, and problems with the Russian legislative procedure did not facilitate obtaining Russian citizenship. Russian officials did not apply articles of the "Admission to the Citizenship of Russian Federation" to the Circassians - thus dooming them to existence without the right to a historical homeland. It was hoped that the UN would involve itself in the sufferings of the Circassian people.
OZDEN MALIK, of Centre Europe - Tiers Monde (CETIM), said globalization of the economy was impoverishing many people around the world; goods and money could move freely, but people could not. When political instability, repression and war made fleeing a necessity, that also caused population flows; to block such movements arbitrarily did not work, it was like an ostrich sticking its head in the sand. The right of asylum was constantly being downgraded in Europe; conditions for admission were now so severe they essentially were of no use; Switzerland had recently passed a new code indicating Swiss legislators were trying to make asylum harder to obtain and to reduce the number of asylum seekers. Identity papers had to be submitted, but it was well-known that those fleeing under duress rarely had their papers in order; sufficient evidence of persecution had to be shown; the status of those fleeing civil wars was precarious and could be revoked quickly, giving no sense of security and causing great anxiety; certain procedural guarantees also were eliminated, including use of the language of the asylum-seeker. CETIM also was concerned with the situation of asylum-seekers in Germany, where efforts were under way to deny the right to asylum, although a major civil response in favour of asylum-seekers' rights was planned; CETIM appealed to European Governments to respect the right to asylum.
HAISSEN ABBA SALEK, of the International Association of Democratic Lawyers, said that the right to movement was being ignored by many counties, notably Morocco. In the Western Sahara, the Moroccan Authorities had prohibited UN aircraft from carrying anyone other than personnel from the UN Mission for Referendum in Western Sahara. Restrictions imposed on freedom of movement were prejudicial to the results of the referendum. Why did Morocco seek to prevent the press from travelling where it wanted - did it have something to hide? The Moroccan authorities were practising a policy of settlement of Moroccans in the Western Sahara to change the demography of the area. The Sahrawis were not allowed to leave the occupied territories, even to visit their relatives in refugee camps. The Moroccan Government refused to hand over to the UN Mission information that would enable the safe return of refugees. The international community had to act to ensure that everyone had free access to the territory. The UN should declare the start of the transition period, and demand the suspension of those laws which could impede the referendum.
KAREN PARKER, of International Educational Development (IED), said the organization had submitted a letter to the members of the Subcommission regarding the refusal of the Government of India to allow two of its delegates to travel to Geneva for this session; both were boarding their KLM flight in Delhi with valid travel documents for Switzerland and had valid credentials to attend the Subcommission; the letter reminded members of the Subcommission that IED's delegate to the 1995 session, Jalil Andrabi, was assassinated by Indian authorities in 1996 just before he was to travel to Geneva to be part of the organization's delegation to the Commission on Human Rights. Even as Indian authorities were targeting Kashmiri leaders by killing them or otherwise preventing their presence at international fora, many Kashmiris were fleeing Indian-occupied Kashmir seeking asylum; these people could not be sent back to India because of the armed conflict in Jammu and Kashmir and because of the torture India carried out against such persons; under the Geneva Conventions, return of people to a State where they would face torture was a violation. IED was convinced that the situation in Kashmir would continue until the people there were allowed to exercise the right granted them by the Security Council to a plebiscite under UN auspices to determine their political status. IED's annual report also outlined violations of the right to movement in Burma, Kosovo, Sri Lanka and Indonesia; the Subcommission must speak out on all these situations.
JEAN BARTH, of North South XXI, said that in Mexico, there were 20,130 displaced people in only 9 municipalities of Chiapas. In the United Nations there was a concern over the displacement of peoples. The causes of this displacement, which violated the most fundamental human rights could not be explained by intercommunitary conflict. In Chiapas the violence that caused people to flee was directly caused by the para-military groups associated with political parties - of which there were at least 20 in the region. The damage involved for those who had no home and had to survive in difficult situations was hard to describe. The displaced people had refused support from the Government, though they said they would accept it from civil society groups. The Mexican authorities were violating one part of the law on dialogue, agreement and pacification in Chiapas which regulated the dialogue between the Federal Government and the EZLN. International observers could verify the facts in Chiapas.
MR. BHUGYAL, of Worldview International Foundation, said that since 1949 Chinese authorities had maintained a policy and practice of moving Chinese settlers into Tibet despite the strong opposition of the Tibetans; the final report of the Subcommission's former Special Rapporteur on population transfer observed that a people with a right to self-determination had a right to control their economic, cultural and political destiny free of domination by implanted settlers; Tibetans had a distinct language, culture, religion and history; these attributes were being systematically destroyed by China. Tibetans were now a minority within their own country; population transfers into the region had resulted in grave violations of their rights; if the Subcommission did not recognize what was happening, the result would be cultural genocide or a non-violent method of ethnic cleansing; farms and grasslands had been confiscated to such an extent that the first famines in Tibet's history had occurred, with the deaths of over 340,000 Tibetans; in addition, China was practising coerced abortions and sterilizations on Tibetan women. The Subcommission should establish a working group on the draft declaration on population transfers.
ASBJORN EIDE, Subcommission expert, said that one of the causes of refugee flows and internal displacement was the unfortunate interpretation of the right to self-determination. The Supreme Court of Canada yesterday found that the Province of Quebec had no unilateral right to self-determination - this was fully in line with international law, and the expert welcomed it. It was essential that sovereign States ensured appropriate decentralisation so that sub-units of the State could maintain their identity. The consequences by the Serbs to set up an independent Republika Srpska had been seen, the same problem was visible in the unilateral attempts to secede by Nagorno Karabach and of the Tamil. Governments should be prevailed upon to ensure that different groups could preserve and develop their identity. The establishment of pure ethnic States was in direct confrontation to principles of human rights. If ethnic groups could be persuaded to recognise the benefit of ethnic pluralism, then many of these tragedies could be avoided. Internally displaced persons and refugees had a right to return to their homes, and this was indispensable for national reconciliation and reconstruction. Returnees had a right to be registered, but there was a widespread tendency to prevent this which stemmed from the desire to establish ethnically based States. It was to be hoped that the High Commissioner for Human Rights could participate in ensuring that the rights of refugees to return were observed.
ADA NGOZI MADUAKOH, of the Office of the United Nations High Commissioner for Refugees (UNHCR), said mass violations of human rights usually lay behind massive displacements of populations; three aspects of the right to freedom of movement were of importance to UNHCR; first, people had the right to move freely within their own countries, and not to be forcibly displaced from their own homes, communities and cultures; second, those who feared persecution had the right to leave their own countries and seek asylum elsewhere; and third, refugees had the right to return to their own countries in safety and dignity and to live in their places of their choice there. In a geo-political climate where many refugees were finding it difficult even to reach a country of asylum, it was imperative that the right to seek and enjoy asylum remain the paramount principle for those at risk. Return of refugees was unrealistic unless there were guarantees of their safety and their right to re-establish shattered lives and communities. That had been a problem in the former Yugoslavia, for example, because despite formal assurances, returnees had no genuine choice about where to live; there as elsewhere, a major impediment was unresolved property issues. Difficulties over returnees also existed in South Ossetia (Georgia), Crimea (among Crimean Tartars), and in Rwanda. The Subcommission had an important contribution to make by undertaking, for example, a clearer articulation of property rights.
MUSTAPHA MEHEDI, Subcommission expert, said that after the statement of UNHCR, he wished to say that it was true that freely chosen return caused problems for those refugees who had had to leave their country and who wanted to voluntarily return. The representative of UNHCR had mentioned social and economic guarantees, but regardless of the guarantees that had to be given to refugees who wanted to go back to their country of origin, the best guarantee of all was amnesty. Legal guarantee lay in amnesty - if it was large numbers of people, the guarantee had to be proclaimed collectively, if it was an individual, it had to be done on an individual basis. Amnesty was the best guarantee of voluntary return.
DAVID WEISSBRODT, Subcommission expert, said the Chairman's statement adopted on the situation of Bhutanese refugees was a positive development and he congratulated the Bhutanese Government for the cooperation it had offered in developing the statement; he wished to review the circumstances and history of the situation; the Government had said many of the refugees of Nepali ethnicity had entered Bhutan illegally and had complained of attacks by some displaced persons on Bhutanese villages; but many of the individuals in the refugee camps had been screened by reputable organizations and it was found that the majority were able to show documentary proof of long-term habitual residence in Bhutan and/or proof of Bhutanese nationality. To protect such human rights as the right to freedom of movement and the right to a nationality, this situation of potential statelessness had to be remedied. The refugees were good examples of what Mr. Eide had said last August should be a core concern of the Subcommission: refugees who were born and lived in their birth country for their entire lives and who had no links with the country of their ancestors. Since the late 1980s, the Bhutanese Government had begun to assert that residents of Bhutan must accept the national culture based on the national dress and language of northern Bhutanese; laws had restricted citizenship in a way that deprived many ethnic Nepalis of that status; schoolchildren were required to wear northern Bhutanese dress and teaching of Nepali was outlawed; some demonstrations by ethnic Nepalis had been violently repressed, there were threats of rape and reports of torture, and a flow of refugees began and intensified. Negotiations between Nepal and Bhutan over five years had led to little progress over return of the refugees. It was essential that viable results arise from the negotiations. This was the third consecutive year that the situation had been raised before the Subcommission and he hoped that a real achievement in the area would remove consideration of the matter from the agenda of the Subcommission in future sessions.
HR/SC/98/26
21 August 1998
The Subcommission on Prevention of Discrimination and Protection of Minorities this morning concluded its discussion on the administration of justice. Speakers called on all countries, who had not yet done so, to ratify the Statute of the International Criminal Court and non-governmental organizations (NGOs) welcomed the draft Convention on Forced Disappearances.
Several NGOs referred to the policies of the Indian Government in Jammu
and Kashmir, and also accused Colombia and the Federal Republic of Yugoslavia of serious alleged violations.
Tunisia, Yemen, and Eritrea took the floor in right of reply to refute allegations made by NGOs yesterday concerning their human rights record.
The Subcommission then heard allegations from NGOs concerning violations of the freedom of movement in a number of countries including China, Mexico, Colombia, and Morocco. Issues raised by NGOs included internal displacement alleged in Mexico; resettlement or population transfers which were said to be taking place, among others, in the autonomous regions of China and in the Western Sahara; and the right to asylum in Europe, specifically in Switzerland - which was being downgraded according to one NGO.
Subcommission expert Asbjorn Eide addressed the meeting saying that the alleged right to unilateral secession usually resulted in population displacement. Ethnically 'pure' States were a direct violation of human rights and States should recognise the value of ethnic pluralism, he added.
Subcommission experts Mustapha Mehedi and David Weissbrodt also addressed the meeting. Representatives of Spain and Albania made statements and the Office of the High Commissioner for Refugees also spoke.
The following NGOs addressed the meeting: Franciscans International, Tunisian Mothers Association, International Human Rights Association of American Minorities, World Muslim Congress, International Peace Bureau, Latin American Federation of Associations of Relatives of Disappeared Detainees, Transnational Radical Party, American Association of Jurists, Society for Threatened Peoples, Centre Europe-Tiers Monde, International Association of Democratic Lawyers, International Educational Development, North South XXI, and Worldview International Federation.
The Subcommission will reconvene at 3 p.m. this afternoon when it will vote on its agenda items concerning the human rights of women, contemporary forms of slavery, and the rights of indigenous peoples. It will also consider a declaration on the situation in Kosovo.
Administration of Justice, Statements
JOHN QUIGLEY, of Franciscans International and the Dominicans, said the Rome Statute of the International Criminal Court was a major step in forging a missing link that could provide the international legal order with power to exercise jurisdiction over persons for the most serious crimes of international concern; the Subcommission was urged to investigate practical ways of promoting follow-up and implementation of this Statute. Not a week went by without hearing the tragic news of a massacre perpetrated against the civilian population in Colombia - last year alone Colombian human rights organizations documented 185 massacres. In the midst of a human rights nightmare, successive Colombian Governments had refused to take decisive action: why? Social justice was not profitable for the transnational corporations, the foreign Governments’ interests and the greed of local politicians who benefited from the terror. There was overwhelming evidence to show that the vast majority of human rights abuses were committed by State agents or paramilitary forces, and for those abuses the Colombian Government was accountable. The Colombian Government was recommended, among other things to enact legislation to make forced disappearances a criminal offence and to take measures to disband the paramilitary groups. The Subcommission was requested to appoint an expert to study the issue of the privatization of national security and prepare a report on transnational corporations, the privatization of national security and human rights.
ASBJORN EIDE, Subcommission expert, said the work under this agenda item had been effective and goal-oriented; but the needs were continuously there, and new things needed to be done; the draft convention on disappearances was a major achievement; it was clear that there were weaknesses in domestic law related to disappearances and something had to be done to release the relatives of disappeared persons from the living hell they endured. He hoped the Commission on Human Rights would give the draft declaration top priority and that it soon would be adopted. As for privatization of prisons, he had great difficulty understanding how such a process should be reconciled with international standards of human rights; under no circumstances could States absolve themselves of the duty to ensure that prisoners were properly treated. The Subcommission must stay up to date on the issue and perhaps develop guidelines to prevent any erosion of the administration of justice through privatization of prisons and the trend towards privatization of security concerns in general. The Subcommission should furthermore keep a close eye on the administration of justice as developed by the new International Criminal Court.
SAIDA AGREBI, of Tunisian Mothers Association, representing FEMNET, said an independent and effective justice system was a guarantee for durable human development. With regard to democracy, as the Chairman of the Subcommission had said, ready-made models should not be imported in Africa, and African NGOs had to become involved in dialogue, and have as a point of reference the Organization for African Unity (OAU). With the advent of 7 November 1987 in Tunisia, the mechanisms of the administration of justice had undergone reforms that included: reinforcement of the primordial role of the Superior Council of the Judiciary; creation of new jurisdictions; creation of new mechanisms in the Ministry of Justice such as the Unit of Human Rights; strengthening of the principal of free justice, by abolishing costs linked to court procedures. The statement had been rewritten to underline the pride of the speaker in belonging to the new Tunisia, a Muslim country known for its openness and avant garde policies where rights of women were a model for good; and this was why the false information that had been given about Tunisia was deplored. The speaker thanked the Chairman of the Subcommission for his objective vision and precious support to NGOs.
MAJID TROMBOO, of International Human Rights Association of American Minorities, said the organization had in the past expressed and continued to express deep concern about gross and massive violations of human rights perpetrated on the orders of the Government of India or sanctioned by it on the people of Indian-occupied Jammu and Kashmir; credible NGOs had for years reported such atrocities as murder, torture, arbitrary arrests, molestation and rape by Indian occupying armed forces -- all because Kashmiris demanded the right to determine their own future. India did not spare even Kashmiri human-rights defenders, they had been killed. On 12 August of this year, two of them who were prepared to testify before the Subcommission were prevented from doing so because Indian authorities refused to allow them to board the KLM flight from New Delhi to Geneva although both had valid Swiss visas. Bearing in mind the specific country situation and the circumstances, it was necessary to recall that former Subcommission expert Stanislav Chernichenko had called for in his expanded working paper on "gross and massive violations of human rights perpetrated on the orders of Governments or sanctioned by them as an international crime"; holding India responsible for such an international crime might deter Governments from such acts.
GHULAM MUHAMMAD SAFI, of the World Muslim Congress, said that once law enforcement personnel were granted impunity they indulged in the worst human rights abuses. The worst human rights violations took place in situations of declared or de facto states of emergency: the Indian-occupied territory of Jammu and Kashmir was one such place. In Jammu and Kashmir, the judiciary had ground to a halt. The National Human Rights Commission was not allowed to receive complaints about incidents that were more than a year old. In fact, this was a device to provide immunity to the occupation forces operating in Indian-occupied Jammu and Kashmir. Emergency legislation was one thing, but it was quite different when the whole system of justice was corrupted to facilitate human rights violations. In addition, in an effort to remove all avenues of justice, the police had been instructed not to register cases of human rights violations in Kashmir. What was seen in Indian- occupied Kashmir was a well-trained, superbly equi
pped occupation force of tremendous size, let loose to break the will of the occupied people of Kashmir in a deliberate and systematic policy of repression. This all constituted a gross and systematic violation of human rights. In Kashmir, the judicial system had not only been corrupted by India, it had been mutilated beyond recognition; the Subcommission was urged to adopt a resolution on this matter.
S. GHULAM NABI FAI, of the International Peace Bureau, said he had reservations about making gross and massive violations of human rights an international crime. What would ensure that such a standard would be applied fairly -- it might be applied to the former Yugoslavia, for example, but would it be applied to Jammu and Kashmir? Cuba would seem a prime candidate for prosecution because it was despised by the United States, but would equal villainy practised by India in Kashmir go unpunished because of India's alluring economic and military potential? India had at this point legalized its State-sponsored terrorism in Kashmir; its occupation forces had power to shoot to kill and license to abuse people however they wished; all available evidence of India's military activity in Kashmir indicated it was systematically targeting innocent people for rape and death; draconian laws remained in effect that cowed the population. It was his humble suggestion that the Subcommission recommend to the Commission on Human Rights that the matter be referred to an international tribunal of the sort established to try Serb war criminals. As long as the international community allowed India to hide its atrocities in Kashmir, there would be no end to them; what India was doing there amounted to a war crime according to the Statute establishing the new International Criminal Court.
PAUL FRIEDRICH KIRCHER,of the Latin American Federation of Association of Relatives of Disappeared Detainees, said that year after year, the Subcommission had heard complaints from around the world on forced disappearances. For thirty years the practice of forced disappearance had become a rapidly increasing problem. In 1997, there were 63 countries with alleged cases of forced disappearances. Impunity was one of the main causes of forced disappearances. Persistence of this phenomena underlined the need to build and strengthen international instruments that prohibited forced disappearances. A convention would help to ensure the guarantees and safeguards of human rights of possible victims. In Colombia, a draft law against forced disappearances had failed and there was no domestic legislation to punish forced disappearances in Africa and Asia. The following elements of the draft convention were fundamental: that when forced disappearances were systematic, this would constitute a crime against humanity; cooperation with the monitoring committee; the establishment of an independent mechanism that could investigate the fate of the disappeared, and could search for a person who had disappeared; an easy and effective habeas corpus measure on the part of the State; and facilitating the establishment of the whereabouts of the persons concerned. This instrument was a useful tool for protecting the disappeared.
ANTONIO LUIS BULLON CAMARASA (Spain) said the follow-up report on the death penalty and the oral report submitted by Subcommission expert Louis Joinet on the Working Group on administration of justice referred to abolition by Spain of the death penalty for crimes committed in peacetime; in 1994, Spain had begun a procedure to totally abolish the death penalty; unfortunately, no reference was made in the report to the conclusion of the process, which occurred in 1995; a change made to the Constitution had abolished the death penalty for crimes in wartime as well; that had been reported in writing to the Chairman of the Subcommission. While Spain appreciated the reference made to it in the report under the rubric of "positive developments", Spain wished the information above to be reflected in the formal record of the session and to be reflected in any future reports on the topic.
MARGARITA GEGA (Albania) said that the Belgrade regime had created another hot bed of tension in the Balkans, three years after the end of the war in Bosnia-Herzegovina. The Serbian State was applying a policy of ethnic cleansing against the Albanian population of Kosovo; the massacres of the police and military and paramilitary foces were pure acts of genocide. The Belgrade regime was blatantly violating the human rights of Kosovo Albanians; it continued to ignore the recommendations of the UN and the Commission on Human Rights. The Albanian Government believed that the worsening of the situation distanced even more possibilities of a negotiated settlement. It was high time to put an end to the choice of war, and time to respect human values. Albania had constantly asked for an end to the state of war, but unfortunately these appeals had not been heeded by Belgrade. Despite difficult economic conditions in Albania, it was committed to welcoming refugees to allay their suffering. The delegation appreciated the work being done by the representatives of the Office of the High Commissioner for Refugees, the United Nations Children’s Fund UNICEF, the International Committee of the Red Cross and others. The tragedy in Kosovo was not just a human rights tragedy; it was a humanitarian disaster.
Rights of Reply
KAMEL MORJANE (Tunisia), speaking in right of reply, said there should be a frank and honest dialogue between members of the international community; he believed that Pax Christi had exceeded all limits of decency and appropriate behaviour; the representative for that organization had showed a lack of respect for the Subcommission and for Tunisia; the Chairman should have stopped a statement that had only referred in passing to human rights and was more of an attack on a State and its democratic and Constitutional character. He deplored the fact that the NGO failed to respect the minimum rules of decency and courtesy. The allegations put forward by the NGO were false and dishonest; he refused to become involved in an exercise in such poor taste. Regardless of what Pax Christi said, the country's achievements in all areas spoke for themselves.
ABLULLAH AHMED NOMAN (Yemen), speaking in right of reply, said that his delegation had listened to the statement made by International War Resisters and had heard only false statements. A national high-level committee for human rights had been created in Yemen; the Government participated in the 1997 session of the Commission of Human Rights - and the Commission had decided to stop consideration of the situation in Yemen following the efforts made by the country to promote human rights. It was to be deplored that a representative of International War Resisters had participated in the war in Yemen. The crimes that had been quoted by the NGO were criminal offenses, and the guilty parties had been tried. Regarding demonstrations, the Constitution protected this right. Since 1990, Yemen had opted for democracy and had held parliamentary elections. Yemen viewed human rights with transparency and credibility and cooperated with all human rights bodies.
AMARE TEKLE (Eritrea), speaking in right of reply, said that an Ethiopian representative of African Association of Education for Development had levelled baseless allegations against Eritrea; some of the allegations were merely distortions, others outright lies. There was a reference to a centre for injured soldiers which was actually run by reputable internationals and had been visited by international agencies; it had also provided a report of the incidents there had been issued and accepted. An Eritrean group had been referred to that did not exist except in the imagination of the speaker; the prisoners referred to also did not exist. The statement was cheap and in bad taste in that and other ways. It was evident that the libellous statement was based on the clumsy idea that if a lot of mud was thrown some of it would stick.
Right to Freedom of Movement, Statements
AFRIM DJONBALIC, of Transnational Radical Party, said that it wanted to draw attention to the displacement of people in the autonomous regions of the People's Republic of China: Tibet, eastern Turkestan and inner Mongolia. In order to transform these regions into Chinese provinces, millions of Chinese were being settled there; as a result of this policy, the Chinese Government was depriving the people of the areas of their right to self-government, and violating the internationally accepted rules of international law which prohibited the transfer of citizens to and from occupied territories, and which protected the cultural, economic and social rights of these peoples. In these regions, about 90 per cent of positions in public life were occupied by Chinese. Mongols, Tibetans and Uighurs were treated as foreigners and there were different standards for these peoples in economic, social and political rights, compared to those of Chinese origin. The population policy and other serious violations of human rights towards Tibetans, Mongols and Uighurs threatened them with disappearance. The Subcommission was urged to pronounce itself against these policies of the People's Republic of China.
VICTORIA MILLER, of the American Association of Jurists, said that in Chiapas, Mexico, thousands had fled the violence; the problem was increasing and impunity for violence committed by paramilitary groups was widespread; that added to population movements; the situation of the displaced was very serious; they were ill-fed, they were harassed by guards; they had been unable to harvest their fields; when they tried to return home they were harassed. The Mexican Red Cross had refused to help them out of consideration for the Government and so an international presence was needed; the International Committee of the Red Cross had come but other international groups and observers had been expelled from the area because the Government did not want objective witnesses to what was happening. Disarmament of the para-militaries might help the displaced persons to return. In Colombia, forced displacement of indigenous and peasant communities had intensified; land ownership was increasingly in the hands of speculators; farmers were of no interest; the areas of growth were oil exploitation and such activities as telecommunications and biological and genetic research; there had been massive asset-stripping of land, while heavy para-military presence had caused massive population displacements, most of the victims being women and children. The Subcommission must act on this situation.
TEUVEZH KAZANOKO, of Society for Threatened People, said that the history of the Adygh (Circassian) diaspora outside the Russian Caucuses originated from the ninth century. According to unsubstantiated sources, there were between 3 to 4 million Circassians living today in Turkey; they were subjected to prosecution and repression simply for being Circassian. To date, this problem had not been considered by the international community. Interested organizations should begin to consider this issue. The tend to return to the Caucases was predominant among the diaspora, but there was the difficult economic situation, and problems with the Russian legislative procedure did not facilitate obtaining Russian citizenship. Russian officials did not apply articles of the "Admission to the Citizenship of Russian Federation" to the Circassians - thus dooming them to existence without the right to a historical homeland. It was hoped that the UN would involve itself in the sufferings of the Circassian people.
OZDEN MALIK, of Centre Europe - Tiers Monde (CETIM), said globalization of the economy was impoverishing many people around the world; goods and money could move freely, but people could not. When political instability, repression and war made fleeing a necessity, that also caused population flows; to block such movements arbitrarily did not work, it was like an ostrich sticking its head in the sand. The right of asylum was constantly being downgraded in Europe; conditions for admission were now so severe they essentially were of no use; Switzerland had recently passed a new code indicating Swiss legislators were trying to make asylum harder to obtain and to reduce the number of asylum seekers. Identity papers had to be submitted, but it was well-known that those fleeing under duress rarely had their papers in order; sufficient evidence of persecution had to be shown; the status of those fleeing civil wars was precarious and could be revoked quickly, giving no sense of security and causing great anxiety; certain procedural guarantees also were eliminated, including use of the language of the asylum-seeker. CETIM also was concerned with the situation of asylum-seekers in Germany, where efforts were under way to deny the right to asylum, although a major civil response in favour of asylum-seekers' rights was planned; CETIM appealed to European Governments to respect the right to asylum.
HAISSEN ABBA SALEK, of the International Association of Democratic Lawyers, said that the right to movement was being ignored by many counties, notably Morocco. In the Western Sahara, the Moroccan Authorities had prohibited UN aircraft from carrying anyone other than personnel from the UN Mission for Referendum in Western Sahara. Restrictions imposed on freedom of movement were prejudicial to the results of the referendum. Why did Morocco seek to prevent the press from travelling where it wanted - did it have something to hide? The Moroccan authorities were practising a policy of settlement of Moroccans in the Western Sahara to change the demography of the area. The Sahrawis were not allowed to leave the occupied territories, even to visit their relatives in refugee camps. The Moroccan Government refused to hand over to the UN Mission information that would enable the safe return of refugees. The international community had to act to ensure that everyone had free access to the territory. The UN should declare the start of the transition period, and demand the suspension of those laws which could impede the referendum.
KAREN PARKER, of International Educational Development (IED), said the organization had submitted a letter to the members of the Subcommission regarding the refusal of the Government of India to allow two of its delegates to travel to Geneva for this session; both were boarding their KLM flight in Delhi with valid travel documents for Switzerland and had valid credentials to attend the Subcommission; the letter reminded members of the Subcommission that IED's delegate to the 1995 session, Jalil Andrabi, was assassinated by Indian authorities in 1996 just before he was to travel to Geneva to be part of the organization's delegation to the Commission on Human Rights. Even as Indian authorities were targeting Kashmiri leaders by killing them or otherwise preventing their presence at international fora, many Kashmiris were fleeing Indian-occupied Kashmir seeking asylum; these people could not be sent back to India because of the armed conflict in Jammu and Kashmir and because of the torture India carried out against such persons; under the Geneva Conventions, return of people to a State where they would face torture was a violation. IED was convinced that the situation in Kashmir would continue until the people there were allowed to exercise the right granted them by the Security Council to a plebiscite under UN auspices to determine their political status. IED's annual report also outlined violations of the right to movement in Burma, Kosovo, Sri Lanka and Indonesia; the Subcommission must speak out on all these situations.
JEAN BARTH, of North South XXI, said that in Mexico, there were 20,130 displaced people in only 9 municipalities of Chiapas. In the United Nations there was a concern over the displacement of peoples. The causes of this displacement, which violated the most fundamental human rights could not be explained by intercommunitary conflict. In Chiapas the violence that caused people to flee was directly caused by the para-military groups associated with political parties - of which there were at least 20 in the region. The damage involved for those who had no home and had to survive in difficult situations was hard to describe. The displaced people had refused support from the Government, though they said they would accept it from civil society groups. The Mexican authorities were violating one part of the law on dialogue, agreement and pacification in Chiapas which regulated the dialogue between the Federal Government and the EZLN. International observers could verify the facts in Chiapas.
MR. BHUGYAL, of Worldview International Foundation, said that since 1949 Chinese authorities had maintained a policy and practice of moving Chinese settlers into Tibet despite the strong opposition of the Tibetans; the final report of the Subcommission's former Special Rapporteur on population transfer observed that a people with a right to self-determination had a right to control their economic, cultural and political destiny free of domination by implanted settlers; Tibetans had a distinct language, culture, religion and history; these attributes were being systematically destroyed by China. Tibetans were now a minority within their own country; population transfers into the region had resulted in grave violations of their rights; if the Subcommission did not recognize what was happening, the result would be cultural genocide or a non-violent method of ethnic cleansing; farms and grasslands had been confiscated to such an extent that the first famines in Tibet's history had occurred, with the deaths of over 340,000 Tibetans; in addition, China was practising coerced abortions and sterilizations on Tibetan women. The Subcommission should establish a working group on the draft declaration on population transfers.
ASBJORN EIDE, Subcommission expert, said that one of the causes of refugee flows and internal displacement was the unfortunate interpretation of the right to self-determination. The Supreme Court of Canada yesterday found that the Province of Quebec had no unilateral right to self-determination - this was fully in line with international law, and the expert welcomed it. It was essential that sovereign States ensured appropriate decentralisation so that sub-units of the State could maintain their identity. The consequences by the Serbs to set up an independent Republika Srpska had been seen, the same problem was visible in the unilateral attempts to secede by Nagorno Karabach and of the Tamil. Governments should be prevailed upon to ensure that different groups could preserve and develop their identity. The establishment of pure ethnic States was in direct confrontation to principles of human rights. If ethnic groups could be persuaded to recognise the benefit of ethnic pluralism, then many of these tragedies could be avoided. Internally displaced persons and refugees had a right to return to their homes, and this was indispensable for national reconciliation and reconstruction. Returnees had a right to be registered, but there was a widespread tendency to prevent this which stemmed from the desire to establish ethnically based States. It was to be hoped that the High Commissioner for Human Rights could participate in ensuring that the rights of refugees to return were observed.
ADA NGOZI MADUAKOH, of the Office of the United Nations High Commissioner for Refugees (UNHCR), said mass violations of human rights usually lay behind massive displacements of populations; three aspects of the right to freedom of movement were of importance to UNHCR; first, people had the right to move freely within their own countries, and not to be forcibly displaced from their own homes, communities and cultures; second, those who feared persecution had the right to leave their own countries and seek asylum elsewhere; and third, refugees had the right to return to their own countries in safety and dignity and to live in their places of their choice there. In a geo-political climate where many refugees were finding it difficult even to reach a country of asylum, it was imperative that the right to seek and enjoy asylum remain the paramount principle for those at risk. Return of refugees was unrealistic unless there were guarantees of their safety and their right to re-establish shattered lives and communities. That had been a problem in the former Yugoslavia, for example, because despite formal assurances, returnees had no genuine choice about where to live; there as elsewhere, a major impediment was unresolved property issues. Difficulties over returnees also existed in South Ossetia (Georgia), Crimea (among Crimean Tartars), and in Rwanda. The Subcommission had an important contribution to make by undertaking, for example, a clearer articulation of property rights.
MUSTAPHA MEHEDI, Subcommission expert, said that after the statement of UNHCR, he wished to say that it was true that freely chosen return caused problems for those refugees who had had to leave their country and who wanted to voluntarily return. The representative of UNHCR had mentioned social and economic guarantees, but regardless of the guarantees that had to be given to refugees who wanted to go back to their country of origin, the best guarantee of all was amnesty. Legal guarantee lay in amnesty - if it was large numbers of people, the guarantee had to be proclaimed collectively, if it was an individual, it had to be done on an individual basis. Amnesty was the best guarantee of voluntary return.
DAVID WEISSBRODT, Subcommission expert, said the Chairman's statement adopted on the situation of Bhutanese refugees was a positive development and he congratulated the Bhutanese Government for the cooperation it had offered in developing the statement; he wished to review the circumstances and history of the situation; the Government had said many of the refugees of Nepali ethnicity had entered Bhutan illegally and had complained of attacks by some displaced persons on Bhutanese villages; but many of the individuals in the refugee camps had been screened by reputable organizations and it was found that the majority were able to show documentary proof of long-term habitual residence in Bhutan and/or proof of Bhutanese nationality. To protect such human rights as the right to freedom of movement and the right to a nationality, this situation of potential statelessness had to be remedied. The refugees were good examples of what Mr. Eide had said last August should be a core concern of the Subcommission: refugees who were born and lived in their birth country for their entire lives and who had no links with the country of their ancestors. Since the late 1980s, the Bhutanese Government had begun to assert that residents of Bhutan must accept the national culture based on the national dress and language of northern Bhutanese; laws had restricted citizenship in a way that deprived many ethnic Nepalis of that status; schoolchildren were required to wear northern Bhutanese dress and teaching of Nepali was outlawed; some demonstrations by ethnic Nepalis had been violently repressed, there were threats of rape and reports of torture, and a flow of refugees began and intensified. Negotiations between Nepal and Bhutan over five years had led to little progress over return of the refugees. It was essential that viable results arise from the negotiations. This was the third consecutive year that the situation had been raised before the Subcommission and he hoped that a real achievement in the area would remove consideration of the matter from the agenda of the Subcommission in future sessions.