SUBCOMMISSION CONTINUES DEBATE ON SITUATION OF HUMAN RIGHTS AROUND THE WORLD

Subcommission on the Promotion
and Protection of Human Rights
53rd session
1 August 2001
Afternoon


Subcommission Experts Discuss Reparations for Slavery, Colonization


The Subcommission on the Promotion and Protection of Human Rights this afternoon discussed having countries make reparations for their practices in colonization and slavery. Before that debate began, various national delegations briefed the Subcommission on progress on human rights made in their countries, or alleged violations by other nations.

Subcommission Expert El-Hadji Guisse, while speaking on several issues involving the violation of human rights, said it had been hoped that following World War II, the world would have become a better place. Today, although it was recognized in some parts of the world that people had a right to have their ill-treatment recognized, that was not the case with Africa.

Subcommission Expert Halima Embarek Warzazi said a proposal put forward last year had resulted in a report by the Secretary-General which discussed reparations for those affected by slavery, colonization and wars of conquest. One idea that had been forwarded was to provide reparations through the forgiveness of debt.

Other Experts voiced their support for this suggestion, and furthered other ideas. Several said it should be up to politicians to determine how far back violations could have taken place in order to qualify for reparations. Subcommission Expert Francoise Jane Hampson suggested that for direct compensation to be appropriate, either the victim or the next of kin of the victim had to still be alive. Further, she said, the acts had to be unlawful at the time -- otherwise there would be punishment for something that was not illegal when it was carried out, and that itself was a violation of human rights.

In addition, several Experts noted it was important to make their views known on this since it would be a topic at the World Conference against Racism, when that begins later this month in Durban, South Africa.

There was also a discussion about the need for and effectiveness of apologies from the aggressor or colonizing power. Louis Joinet noted it was important to distinguish between external and internal recognition of wrongdoing. External recognition -- a formal declaration by a Head of State, for example, he said, was not as effective as an internal change in the culture of the country. Illustrating his point, he said there was a tremendous debate on Algeria in France these days.

Earlier in the debate, the Subcommission continued its discussion on the situation of human rights anywhere in the world. Some national delegations spoke about the progress they had made in ensuring the enhanced situation of human rights in their countries.

Participating in the debate were representative from Bhutan, Azerbaijan, Turkey, Pakistan, and Indonesia. Further, the representatives of Algeria and Malaysia spoke in rights of reply.

Experts speaking about reparations were Mr. Guisse, Mr. Joinet, Paulo Sergio Pinheiro, Asbjorn Eide, Ms. Warzazi, Miguel Alfonso Martinez, Leila Zerrougui, Erica-Irene Daes, Fan Guoxiang, Soo Gil Park, Francoise Jane Hampson, Godfrey Bayour Preware, Yeung Kam Yeung Sik Yuen, Vladimir Kartashkin, Soli Jehangir Sorabjee, and Yoshiko Terao.

The Subcommission will reconvene at 10 a.m. on Thursday, 2 August to continue discussing the situation of human rights anywhere in the world.

Statements on the situation of human rights in any part of the world

BAP KESANG (Bhutan) said the tenth Ministerial Joint Committee Meeting held in Katmandu last December had made progress in working towards a durable solution concerning the situation of the refugee camps in Eastern Nepal. An agreement was reached on a joint verification team that would undertake a verification of the people in the camps. The purpose of this was to determine the identity of these people -- both Governments acknowledged there were different backgrounds of people in the camps, including non-Bhutanese. Both sides had acquired valuable experience in this process. All persons were given a fair opportunity to state their claims. The two Governments would be meeting again in August to discuss the verification process. Bhutan remained committed to finding a solution to the problem. There was confidence that the international community would continue to encourage the Governments in this bilateral process.

I. VAHABZADA (Azerbaijan) said the territory of a State must not be occupied by another in violation of the Charter of the United Nations -- that such an act was internationally recognized as aggression; such aggression also was often accompanied by such crimes as genocide. Compensation for human rights violations and the pursuit of justice following armed conflicts were often impeded by the refusal of States to assume their international responsibilities. Recently the occupied parts of Azerbaijan had been used for such acts as terrorism and trafficking in narcotics. Such acts were a threat to stability and security in the world, and particularly in the South Caucasus. For that reason Azerbaijan supported efforts to designate terrorism as an international crime.

Occupation of the territory of a State often depended upon the indecisiveness of the international community; that could result in steps taken by the occupier that could prolong the occupation for an indefinite period. It also made resolving such issues as missing persons much more difficult. The Subcommission would, it was hoped, carry out a more complete study of such matters.

ERDOGAN ISCAN (Turkey) said his country remained fully committed to implementing the constitutional and legal amendments and other modifications required in order to continue to improve human rights in line with the aspirations of the Turkish people. Improvement of human rights was an irreversible process in Turkey. Turkey was focusing primarily on aligning its domestic laws and regulations with international standards, as well as promoting a thorough understanding of human rights through increased levels of education. In this respect, again, considerable results had been achieved during the last year. As part of a comprehensive process to take forward wide-ranging reforms in the areas of democratization and human rights, Turkey=s Parliament had adopted several pieces of legislation, including Constitutional and legal amendments on the restructuring of the State Security Courts, and a Repentance Law that brought amnesty and a reduction of sentences. Also, there was a law postponing the sentences and trials of crimes committed through the press and broadcast media.

Turkey had also continued to take steps towards becoming a signatory to the fundamental international instruments aimed at the protection and promotion of human rights. Turkey had signed both the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights last August. Turkey also signed the two Optional Protocols to the Convention on the Rights of the Child, and the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women. A substantial dialogue on human rights required good will, sincerity and cooperation. If such elements prevailed, every one would be in a better position to achieve the highest standards of human rights.

MUNIR AKRAM (Pakistan) said domestic reforms initiated by the Government of Pakistan had made considerable progress, and a comprehensive programme of structural reforms had been instituted to resurrect good governance and reduce poverty. Other efforts had focused on human development; revival of genuine democracy; the holding of local and general elections; elimination of child labour from all economic sectors and prevention of underage children from entering the labour markets; elimination of illegal weapons, which were a major factor in sectarian violence; revitalization of the judiciary to allow speedy disposal of all pending cases; police and jail reforms; and promulgation of a Juvenile Justice Ordnance to abolish the death penalty for persons under 18 years of age.

Peace in South Asia was vital for Pakistan's socio-economic development. In Pakistan's view the recent summit with India had not failed but realism required a focus on a settlement in Jammu and Kashmir conducive to normalization of bilateral relations. The Subcommission must remain cognizant of these developments, since peace, security and progress in South Asia were deeply linked with human rights and freedoms, especially in the disputed territory of Jammu and Kashmir.

LUCIA RUSTAM (Indonesia) said over the last three years the transformation of the Government from authoritarianism to democracy had provided a wide-range of challenges. Human rights had been prioritized, and definite improvements had been seen in the protection of human rights and through the freedom of the press. A Human Rights Court had been established in the country, and ad hoc human rights courts had been set up on human rights violations in East Timor. A very real step had been taken by the Indonesia Government to investigate all human rights abuses -- this had led to hundreds of investigations. Most notably with the cases in East Timor, the Government had worked with the National Human Rights body.

In Papua, the Government had been intent on implementing a wide-range of reforms. In response to local aspirations, the Government had passed legislation granting special autonomy to Papua. The Government had initiated humanitarian initiatives, including the reconstruction of important segments of the society. Indonesia condemned the recent shooting of an Indonesian person by the United Nations Peace Keeping Forces, and the incident should be investigated. In a country the size of Indonesia, which had been beset by economic and political challenges, it was not easy, but the Government was prepared to take on the challenge, and was determined to succeed.

Rights of reply

A Representative of Algeria, speaking in right of reply, said that this morning a non-governmental organization (NGO) had criticized the human rights situation in Algeria; Algeria was not surprised, as it had denied, since its independence, cooperation with this NGO which had existed since 1926. It was re-establishing itself now by criticizing Third World countries. The FIDH (International Federation of Human Rights) should explain what it had done from 1926 through the 1970s -- it had supported colonialism, and most colonialist policies; it had remained silent on many important matters to Africans and it had never taken a position on the massacres in Algeria, nor on those in Madagascar in 1947. It had not supported the extension of human rights to colonized peoples. This NGO should not be allowed to speak in the United Nations, and all its assertions, on whatever country it was speaking about, were null and void, in Algeria's opinion.

A Representative of Malaysia, speaking in right of reply, said the statement of the World Organization against Torture this morning about the supposed harassment of activists in Malaysia was a cause of concern to his delegation since the statement did not reflect the facts. Illegal and unconstitutional activities were not allowed in Malaysia, as they could be of detriment to the public welfare and public security. Those incarcerated had been detained as an immediate preemptive measure to protect public security. Those detained were strongly believed by the police to be plotting demonstrations and activities aimed at challenging the legitimate Government of the country. The Malaysian Act referred to by the NGO continued to be used to protect the country's multicultural society; it did not apply to those with divergent views expressed within the laws of society; and it was not applied arbitrarily.

Statements on reparations for victims of colonization, slavery

EL-HADJI GUISSE, Subcommission Expert, said mankind was increasingly denying the human rights of individuals. Unfortunately, human rights were flouted and ignored throughout the world. What the non-governmental organizations (NGOs) said was not without basis. It was clear now that human rights violations were more frequent, massive and serious. This step backwards was enhanced by the impunity of those who consistently violated human rights. There was a systematization of torture by police -- it was a tool used in preliminary interrogations. Torture was both physical and moral. It was physical because it was directly on the body. But it was also a moral issue -- it was practical, it was used by certain States to keep people banned. It was frequent and constant. All should be afraid because there were no countries that did without torture -- in that case, all States were savage and primitive.

The situation of migrant workers was serious. What happened to them at border crossings was an affront. These were people who had no weapons, and only wanted to sell their work in order to exist and survive. Unfortunately, this treatment was also extended to their families -- their wives, children, anyone who was involved in their existence. The crimes were committed with impunity. There were many hopes in the United Nations, but nothing had been done to help these people and their families? How many of them had been tortured and killed? How many had been sent back to their countries in terrible conditions?

Africa today had been plunged into complete poverty and misery, plunged into a situation where it faced the most serious disease, having to deal with famine. During the apartheid period, a South African doctor cultivated a molecule that turned black skin white. He wanted to eliminate an entire race. Nobody every said anything about this extreme form of negating the right to be different. International pharmaceutical firms had produced a drug to counter the affects of HIV/AIDS. Were they going to be selective to who could get the drug? It had been hoped that the world after World War II would have been better than before it. But today, when it was recognized that all people had a right to note the ill-treatment placed upon them and their ancestors, Africans were not allowed to do so. And the talk was not even about reparations. Seeing human rights in retreat, the people of the Third World were concerned.

LOUIS JOINET, Subcommission Expert, said Mr. Guisse had said that nothing was being done about the dissemination of the vaccine referred to in a generic form -- in fact there was a non-governmental organization that was working to mobilize people on this question, and on this scandal of having people's health turned into a matter of money. It was important not to give up on such matters.

PAULO SERGIO PINEHEIRO, Subcommission Expert, said at other times, there had been movements to silence the claims for reparations for Africans. It was most timely for Mr. Guisse to recall the responsibility of the Subcommission to bring the issue of reparations to the forefront. The Subcommission ought not to shirk this challenge. It could not pass over in silence and refuse to hear what was going on in other rooms that were preparing for the World Conference.

ASBJORN EIDE, Subcommission Expert, said the issue brought up by Mr. Guisse was important, and the Subcommission should think about what to do. There were some examples of reparations; the German Government had recognized its responsibility for the slave workers used by Germany during World War II; everyone was still waiting for the Japanese Government to recognize the same degree of responsibility. It would be good if the Subcommission could collect cases and consider how to deal with this matter.

HALIMA EMBAREK WARZAZI, Subcommission Expert, said for many years, there were efforts to see how reparations could be included on the United Nations agenda. Today, because of a plan from the Subcommission last year, there was a text from the Secretary-General on reparations for peoples affected by slavery, colonialism, and wars of conflict. There were preparations going on for a very important conference. And many governments were objecting to a linkage between colonization and human rights. There was an idea of reparations for colonization through the forgiveness of debt. For many years, these countries reaped benefits from the colonized countries. Countries had to hold their ground -- consensus may not be a question, and it was important to fight for this.

MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said this was a timely subject, especially given the substantive reasons noted by Mr. Guisse. Reparation for terrible violations committed in the past was an important topic, but it was also important to remember today's realities; it was necessary to decide how to respond to such questions, and to consider the Subcommission's role as compared to the role of other bodies not far removed from it. The Subcommission had limited powers these days under its agenda item 2, for example said.

LOUIS JOINET said this was an interesting subject. The joint report last year on impunity had referred to reparations through debt rescheduling. The Subcommission could do something that said each State could pay by according to its history. But the issue of determining values today, with globalization, was a very difficult one. How were reparations financed? There was no consensus in the Subcommission, but there was some convergence of views. It was agreed that the Subcommission should put in a document what it had done already in this area. One way of ensuring progress in difficult areas was raising the question properly.

EL-HADJI GUISSE said that when he talked about reparations, referring to the documents produced by Theo van Boven, it was important to make clear that the reparations referred to were not entirely financial. Recognition of slavery and the slave trade as a crime was a part of reparations. Compensation might refer to debt alleviation, or restoration of the rights of African people, or return to the African people of art work now in foreign museums. Public assistance to development including the transfer of technology should also potentially be a part of reparations.

ASBJORN EIDE said this process was very useful. There was a need for material reparations, and the debt proposal was supported. There were questions to be answered, however. When the debt was cancelled, it had to be sure that the people, on whose behalf it was being cancelled, would benefit from it. There had to be conditions on it. With the case of the German compensation to slave workers, the compensation went to those who were still alive.

LEILA ZERROUGI, Subcommission Expert, said the fight in the Preparatory Committee was that some delegations did not even want to have recognition of the African slave trade; reparations would come later, perhaps, but the Subcommission at least should insist that Africans receive the recognition that they were victims of abominable crimes.

ERICA-IRENE DAES, Subcommission Expert, said that on a prior visit to Fez in Morocco, she had seen many invalid people. Someone had told her that this was the legacy of the colonial power. This was what they left when they left Morocco. That proved what was said earlier -- it was important to have a recognition by the colonial powers of what they had done, and it was important to have an apology from the colonial powers. The Subcommission had discussed in the past compensation for the victims of crimes. On the basis of all this documentation, the problem could be further investigated, and a study or a report could be undertaken.

FAN GUOXIANG, Subcommission Expert, asked where could one calculate the starting point where the victim was victimized? It could not be the time of Alexander the Great or the Roman Empire. His impression was that everyone should start from recent history, the time of colonialism and the harm done to those who were oppressed. As for World War II, whether in Europe or Asia, many people were victimized in different ways; the matter of the "comfort women" was raised every year, for example. Two points should be focused on -- the reparations that might be made for colonization, and those that might be made as a result of the war. Moral recognition of these questions was necessary before compensation was discussed, and it was very clear that some countries were having great difficulty in recognizing the moral wrongs that had been committed. After that could come a consideration of how such matters could be addressed politically and legally.

LOUIS JOINET said the Subcommission could consider a brief document -- it could be a set of references on this discussion. There was the problem of recognition, rehabilitation, restitution -- these were things that could be done over time. It was important to have a framework for discussion. The problem was the implementation. With regard to recognition, there was a distinction between external and internal recognition. There was a big debate going on in France on Algeria. The important thing was that it had to be done at home. Increasingly, this was being discussed in France. It could not just be a formal declaration by a Head of State, it had to be an internal change in the culture of the country.

SOO GIL PARK, Subcommission Expert, said he often thought of how Germany had come to terms with its past in such a successful way while a former colonial power in Korea's part of the world had not been able to do so. He shared the sentiments expressed concerning the needs for reparations for people who had suffered so much during colonial domination. He also agreed that the ways reparations could be provided were various -- sincere apologies could accomplish a great deal. The important thing was the mind set of the political leadership in the former colonial countries. The Subcommission should indeed focus greater attention on this issue.

FRANCOISE JANE HAMPSON, Subcommittee Expert, said the world would not be able to move forward without justice. Things could not just be swept under the carpet. For compensation to be appropriate, a victim was needed. And a direct victim -- either the victim or the next of kin. So naturally there was a time limit on it. But today, many victims of colonization and war crimes were alive. The acts had to have been unlawful at the time, otherwise people would have been penalized for something that was not wrongful at the time. That, in itself, was a violation of human rights. There were many acts that were unlawful in the 1930s, even though the Geneva Conventions were not signed until after World War II. Germany set a fine example. These questions were questions of compensation in the strict sense. Individuals had been seeking remedies in Japan, particularly the comfort women.

In the case of moral reparation, she said, it was important to realize how important symbolic gestures could be. Remission of debt was important. If this distinction was made, perhaps there would be much less hostilities in other rooms in this building, since there was a real risk the World Conference against Racism would not be taking place.

EL-HADJI GUISSE said that in response to Mr. Fan's questions, if the problem of slavery was raised today, it was because in the past there was slavery of an entire people; you could leave the dates to politicians to determine, but everyone knew the slave trade existed and it had affected an entire people, and it was clear that slavery was a crime against mankind. The point was not to make reparations to individuals but to peoples affected. As for quantifying reparations, that could not be done precisely; the Subcommission could only make estimates. When reparations started, in whatever form, it was important to make sure they went to the people, and not to the leaders. The dictators -- he excused himself for saying it -- should not once again take for themselves what was meant for the African people.

GODFREY BAYOUR PREWARE. Subcommission Expert, said there was a reluctance in some countries and some groups, perhaps because such a recognition of slavery could cause economic consequences. This Subcommission should be concerned about this issue because the body was the conscious of the international community. Wherever there was a violation of human rights, the Subcommission should be in the vanguard. There was a sudden need of urgency for the Subcommission's point of view to be heard in other fora, because the Durban Conference was right around the corner. The Subcommission should make its voice heard. Figuring out the legal aspects was for another forum at another time.

HALIMA EMBAREK WARZAZI said that while she had deep respect for Mr. Fan and Mr. Park, she would not want to place on the same footing the victims of World War II and those of colonialism and slavery. She did not know of a single court that had put on trial those responsible for slavery or colonialism, while the Nuremberg court and other fora had dealt with World War II offenses. There were not even any useful studies on colonalism and its consequences. The Subcommission should deal with this subject -- it was very important.

YEUNG KAM YEUNG SIK YUEN, Subcommission Expert, said a study by a prior Expert on slavery had gone to the Commission on Human Rights in the early 1990s, and the Commission in 1998, had passed the study, and asked a Special Rapporteur to submit a revised report. This issue was still very topical. It looked like the Commission had taken over. It was important that the Subcommission not run along the same lines.

What about the right of compensation of the victims of human rights violations right now? Was sufficient attention being given to this right now? It was always good to draft international instruments, setting down norms, when it was known that the effective remedy for human rights abuses were applied in the first place at municipal levels. There had to be a close link between the norms at the international level and the norms at the national level. One proposal that could be put forward was perhaps giving some thought to State liability for victims of human rights abuses.

VLADIMIR KARTASHKIN, Alternate Subcommission Expert, said the struggle for human rights included not only stopping violations but obtaining compensation for them; in national situations, compensation could be obtained through the courts. Similarly, crimes at the international level should involve international liability and compensation. He agreed with those who said it was necessary to provide compensation for the damage done by colonial and other powers to many peoples and many countries. But obviously without careful consideration and a unified approach, it would not be easy to resolve such a matter. The international community was far from unified in how to approach a subject that had great disparity. A lot of time would be needed.

Among other things, territorial disputes and conflicts often could only be resolved through compromise; afterwards those compromises had to be respected. It also was true that some conflicts and violations occurred because States refused to ratify fundamental international instruments on human rights, while others occurred because States did not implement the instruments they had ratified. Other causes of problems were interference in the internal affairs of States, or the taking of hostages, or misguided attempts at self-determination, or misinterpretations of religion. The Subcommission should offer some recommendations of what should be done to ensure that its agenda item 2 could be accompanied by some specific proposals and recommendations.

PAULO SERGIO PINHEIRO asked if the Chairperson could sum up the different arguments. There was the greatest respect for the victims of World War II, and it was pleasing to see that reparations had been made to many of them and their families. The Subcommission could support the descendants and the victims of slavery and colonialism, people who could not defend themselves. In four weeks, there would be the World Conference against Racism in Durban. What was facing the body at the present time was slavery and colonialism, not the Second World War. What was needed next week was a resolution -- a very simple message that could be heard in Durban.

SOLI JEHANGIR SORABJEE, Subcommission Expert, said some things were clear: slavery was a crime against humanity whether or not it was a crime under the laws of the time, and amends had to be made. The question was by whom, to whom, and how. To his mind there should be explicit external recognition and acceptance of moral responsibility by the States that had profited from slavery -- that was the bare minimum. There also was the question of time frame; the question of who were the victims -- those matters could be decided later, or dealt with by other fora. But as a beginning, the Subcommission should pass a resolution calling on States to recognize their moral responsibility for the crime of slavery.

YOSHIKO TERAO, Subcommission Alternate Expert, said recognition was very important, and there was consensus on this point. But how could proper recrimination be made? Last century was a time of war and crime, but it was also a time when the understanding of human rights and the concept of human rights was born. A generation of people who had experience in dealing with war was passing away. How should that be passed to the next generation? She said she had two daughters, and wanted them to know about comfort women. But it was not easy to talk about such a thing with young students. It was important to have this education, but it must be remembered that the teachers were also young. Just to write in a textbook that a country did such a thing was not enough. Of course it was important to explain why this was a bad thing, but it was also important to focus on how these events happened. That also should be studied, and in order to do that, there had to be shared recognition. The new generation would have to learn from the people in the older generation.

ASBJORN EIDE said something should be done in advance of the Durban Conference -- a resolution. Also the summary records of this discussion should be prepared quickly so that they could be studied and the Subcommission could decide what to do next.

FRANCOISE JANE HAMPSON said she wanted to see the issue of the AIDS drug resurface under agenda item 4. It was important to discuss it, and it should not be lost in this discussion.