SUBCOMMISSION DISCUSSES ADMINISTRATION OF JUSTICE: SPEAKERS DEPLORE IMPUNITY, ARBITRARY DETENTION; SUPPORT INDEPENDENT JUDICIARIES

AFTERNOON
HR/SC/99/22
19 August 1999



The Subcommission on Promotion and Protection of Human Rights continued discussion of the administration of justice this afternoon, hearing from a succession of Experts and non-governmental organizations (NGOs) urging action to eliminate impunity for human-rights abuses and an end to such offences as disappearances and arbitrary detention. Several country representatives said an independent judiciary was indispensable for the effective function of democratic, pluralistic societies.

In many countries, there was a system of impunity that ensured that human-rights violators would not be punished, and the result was constant instability, Subcommission Expert El-Hadji Guisse said.

Representatives of the International Commission of Jurists and the International League for the Rights and Liberation of Peoples said the Pinochet case, if carried to its conclusion, would be a landmark event in the combat against impunity.

The International Islamic Federation of Student Organizations said the quality of administration of justice was a measure of a State's commitment to the promotion and protection of human rights, while Subcommission Expert Rajenda Kalidas Wimala Gooneskere contended that without an independent judiciary, true justice could not be ensured.

Experts addressing the meeting were David Weissbrodt, El-Hadji Guisse, Rajenda Kalidas Wimala Gooneskere, and Francoise Jane Hampson.

Representatives of Colombia and Pakistan spoke.

Also delivering statements were the following NGOs: Women's International Democratic Federation; Liberation; International Commission of Jurists; Agir Ensemble pour les Droits de l'Homme; December 12th Movement International Secretariat; Centre Europe-Tiers Monde; International Association against Torture; Indigenous Resource Development; International Educational Development; Human Rights Advocates; Aboriginal and Torres Strait Islander Commission; Indian Council of South America; Interfaith International; World Muslim Congress; International Islamic Federation of Student Organizations; International Institute for Peace; and International League for the Rights and Liberation of Peoples.

The Subcommission will carry on with debate on the question of administration of justice when it reconvenes at 10 a.m. Friday, 20 August. Later in the morning it has scheduled action on a number of draft resolutions.

Statements

AIDA AVELLO, of Women's International Democratic Federation, said the impunity rate had grown in Colombia. The military had committed acts of brutality and injustice, and had not been punished. There had been persecution of judges by secret Government forces. The armed forces had colluded with murderers. These gross human-rights violations should be treated as international crimes. Police functions for the armed forces should not be allowed: justice should not be militarized.

In Peru, attempts were being made to remove the right of Peruvians to apply to international fora to defend their rights, most of which were denied. Peru had been cut off from the international community. The International Red Cross should investigate prisons in Peru, and so should the international community and the international organizations. Conditions in Afghanistan for women were also grave.

JEREMY CORBYN, of Liberation, said that in a number of countries there was a failure of the administration of justice and human rights. Prison conditions in Yemen were unacceptable, and there were disappearances in the country. In Punjab, India, there were extra-judicial executions and the victims' bodies were disposed of as "unidentified and unclaimed" by state security agencies. In Iraq, there was a massive catalogue of human-rights violations perpetrated against the Iraqi people; human-rights monitors should investigate recent atrocities.

In Turkey, Kurdish leader Abdullah Ocalan had been tried in a manner which lacked internationally recognized standards. The Turkish Government should take immediate action to stop his execution. In Sri Lanka, Tamils were massacred and tortured; and there were extra judicial killings and "disappearances" of Tamils. An independent, impartial monitoring of the human-rights situation there was needed; an international arms embargo of Sri Lanka should take place immediately. The Government should accept the international offer of third party mediation without preconditions.

DAVID WEISSBRODT, Subcommission Expert, said there were some areas of the world where it was acceptable and even sometimes legally condoned for a man to abduct and rape a woman with the purpose of forcing her into marriage. This practice was referred to as "pre-marital rape". There were Governments that failed to punish rapists, or allowed legal loopholes which permitted rapists to escape punishment, and often these loopholes involved the avoidance of punishment should the man and woman marry. In some States where abduction and rape were punishable even when the offender married his victim, the practice of pre-marital rape remained a problem. It was always the victim who carried the stigma of the rape. In some areas, Government authorities had attempted to prevent such problems, but with little success.

Laws which pardoned the crime of pre-marital rape were sometimes explained by the fear that a woman, along with her parents, might seek to avoid "dishonour" by accusing a man of rape after consensual sex. This idea, however, Mr. Weissbrodt said, ran the risk of dismissing the reality of rape. Laws which encouraged rapists to marry their victims were also explained as a way of "helping" the victim, but enshrining this practice in law as a complete and automatic defence of the crime in effect made the victim an accomplice.

The use of rape as a tool to force women to marry, and the use of marriage as a way to escape punishment for rape, were both inexcusable. Rape was a form of torture under international law, and could not be defended on cultural grounds. Governments were urged to change laws which provided rapists with an escape should they marry their victims, and the practice of pre-marital rape should be stopped by all possible means.

ALEJANDRO ARTUCIO, of International Commission of Jurists, said there was a question of the impunity of human-rights violators. There was a publication from the ICJ recently about the Pinochet case. It contained positive lessons for the fight against impunity. This had marked the limits for impunity.

In the case against Pinochet, the United Kingdom, under international law, was obliged to extradict him to Spain. In both countries, there were conditions where he could benefit from the right to a fair trial, which, when he was in power, he had failed to give his victims. The case was instructive because future guilty parties might learn that they could not benefit from impunity.

EL-HADJI GUISSE, Subcommission Expert, said the administration of justice was an important issue, and its discussion aimed at bringing about better justice for all. The administration of justice was encountering problems across the globe. States needed to respect the theory of justice and to support it all levels. In many countries, the situation of justice did not exist, for example in Sierra Leone. The International Criminal Court's legislation should add to international jurisprudence, which would help to ensure equitable and just justice for all.

However, Mr. Guisse said, this should be brought about under an equitable process, which required a legal framework, a state of law where all were at an equal level before the law. The law itself had to be in conformity with accepted legal standards. Two positive actions were required so that any individual could rely on the judicial system to try a case within the spirit and the letter of the law. Access to justice should be facilitated, and should break through the barriers of ignorance and distance. Justice was expensive, and the poor found themselves in situations where violations of their rights were ignored. The administration of justice required personnel and funding, as well as an independent and impartial judiciary.

In many countries, there was a system of impunity that ensured that human-rights violators would not be punished. The result was constant instability. The authors of serious atrocities against citizens, especially in those cases with international implications, should be brought to justice, Mr. Guisse said. Peace could only be brought about by just and equitable justice.

DANIEL PARADA, of Agir Ensemble Pour Les Droits De L'Homme, said one year after the Subcommission adopted a resolution on the matter, the human-rights situation in Mexico was still grave. Torture, rape, killings, and forced detentions were still happening. The criminal reforms that had been authorized gave the power to detain someone without charge. A recently organized crime law would make it possible to jail human-rights defenders.

The use of the army in civilian situations in Mexico restricted the freedom of movement and the enjoyment of human rights. The armed forces were accused of an increasing amount of human-rights violations. There were over 200 documented cases of political prisoners in Mexico where proceedings had irregularities in comparison to international standards. There were threats and torture, and detainees were moved to prisons far away from their communities. Often there were no translators and the detained were not even aware of the charges against them. The lack of independence of judges and lawyers continued. Judicial decisions also reduced the scope of the right to a proper defence. The Subcommission was asked to convey its concern about impunity in Mexico.

JED MICHEL, of December 12th Movement International Secretariat, said justice should be administered in any society. Law and order, policies, and operating procedures of any truly democratic Government should go hand in hand with the desire to make certain that the societal scales of impartiality balanced in equity's favour. The number of persons subjected to either detention or imprisonment was on the rise in a significant number of countries all around the world.

The trend in the United States was towards criminalizing a particular set of people: young, Black males. This had caused a halt in the development of an entire people. It would be encouraging for the Subcommission to consider the following suggestions as a contribution to the process of rectification of this state of affairs: the Working Group on Arbitrary Detention should carry out a mission to the US to investigate this question, particularly as it related to African-Americans; and a Special Rapporteur should be appointed on the privatization of prisons.

DOGAN ERBAS, of Centre Europe-Tiers Monde, said that Turkish and international public opinion had been focused on Abdullah Ocalan. A number of international organizations had deplored irregularities in his case. According to two of Mr. Ocalan's lawyers, they had been targeted by the media and had received threats and had suffered from physical aggression. Documentation concerning the trial came late. The Turkish State Security Tribunals were an excellent example of emergency courts where the rights of defendants could be suspended. The objections of defence lawyers had not been taken into account by the Tribunal; long before the trial began the presumption of innocence had been suspended.

The Subcommission should intervene with the Turkish authorities to ask that they refrain from executing Abdullah Ocalan and heed his plea to re-establish peace and democracy in Turkey.

ROGER WAREHAM, of International Association against Torture, said the issues of torture, arbitrary detention, the treatment of political prisoners, the death penalty and States’ refusal to adhere to international instruments were of particular concern. The death penalty in the United States of America raised questions of race and class bias, and there were also factors which indicated the lack of fairness of the trials and the poor quality of the representation received by death-row inmates. The Subcommission should use its resources and mandate as an independent, apolitical body to help create conditions that would secure adherence to the themes and instruments it addressed, and to which all paid lip service.

It was especially important to focus on the situations of those countries, like the US, whose machinations and sophistries were designed to disguise the existing double standard within the UN. This double standard undermined the legitimacy of the enforcement of all human rights. The Working Group on Arbitrary Detention, the Committee against Torture and the Special Rapporteur on Torture should investigate the situations in the US, Peru, South Korea and Spain; and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions should follow up the 1997 visit to the US conducted by her predecessor to ascertain what steps the US had taken to comply with his recommendations.

LETTY SCOTT, of Indigenous Resource Development, said the Anmatyerre Nation in the Northern Territory of Australia demanded truth and justice and change for all peoples regardless of colour or creed. The speaker stated that her husband was unlawfully incarcerated in 1985, hit while in custody so that his eye was badly damaged; kept in solitary confinement; and never left prison alive. There was overwhelming police photographic and documentary evidence that proved Mr. Scott was murdered in custody. It was not possible to get justice at home. One eyewitness said Mr. Scott had been beaten by prison officers. The eyewitness was threatened and "deals were done" to ensure that individual officers were not at risk for any of their improper acts.

A request had been made to re-open the case, but the Prime Minister had refused. The Northern Territory Government was currently seeking to strike out an application for justice. Other families had similar stories. There was widespread and systematic torture; murder was rampant. A Special Rapporteur should investigate and bring to account all perpetrators of these crimes against humanity.

KAREN PARKER, of International Educational Development, said the issue of prisoners of war (POWs) was of highest concern. POWs were killed, tortured, held incognito and denied POW rights in many wars. One key victim of this denial of POW rights was Abdullah Ocalan. The Kurdish-Turkey war was governed by the Hague Conventions, the Geneva Conventions, and all treaty-based and customary laws of armed conflict. This implied POW status if captured, and the right to engage in armed conflict. Turkey sought to hold and had tried Mr. Ocalan in disregard of his status as a captured combatant, and for acts which were undertaken in the course of armed conflict.

The judicial procedure against Mr. Ocalan recently concluded in Turkey was fatally flawed in its failure to take his status into account. The international community should condemn this trial and verdict from that point of view, and demand that Turkey afford Mr. Ocalan his rights as a POW. Humanitarian law provided for the broadest possible amnesty in situations of armed conflict.

DOUGLAS HERBEK, of Human Rights Advocates, said the war in Afghanistan had resulted in the indiscriminate killing of women. There should be peaceful intervention to prevent further violations by the authorities. The Taliban had banned women from working, and it had closed and restricted access to schools. Women were threatened with violence for trying to work or organize for their rights. Those not complying with Taliban edicts were beaten, shot or imprisoned.

Afghanistan was a collapsed state; the UN should intervene in Afghanistan as it did to protect Rwandans. The Subcommission should recommend that direct humanitarian action be taken; the UN should establish monitoring posts to prevent an illicit arms flow; specific countries that supplied arms to Afghanistan should be condemned; a commission of experts should assist the Taliban in determining how it might both respect human rights and its Islamic obligations; and ultimately, peacekeepers might be needed to prevent further gross and massive violations of human rights.

GEOFF CLARK, of Aboriginal and Torres Strait Islander Commission, said the urgency of the problem of Aboriginal over-representation in juvenile detention was noted in Australia's first report under the UN Convention on the Rights of the Child. In its concluding observations, the Committee on the Rights of the Child had expressed concern about the unjustified, disproportionately high percentage of Aboriginal children in the juvenile-justice system. The Committee was particularly concerned about legislation that provided for mandatory detention and punitive measures, resulting in a high percentage of Aboriginal juveniles in detention.

The Australian Government had said time and again that it was committed to addressing these issues. But what had actually happened? On 11 August, a major Australian newspaper highlighted the high levels of indigenous juvenile detention in the recent Australian Bureau of Statistics Report "Health and Welfare, Aboriginal and Torres Strait Islander Peoples". In the 1996 census of population and housing, of those recorded as being in corrective institutions for children, about 41 per cent were identified as being indigenous. Given that indigenous juveniles aged 0 to 17 made up 3.6 per cent of all Australian juveniles, the 41 per cent was a gross over-representation.

ANNE-FRANCOISE MECKENSTOCK, of Indian Council of South America, said the case of the imprisonment for a crime he did not commit of Leonard Peltier in the United States was a symbol of injustice towards indigenous peoples. In light of the situation, the Council appealed that the Subcommission adopt a resolution on the issue, and support the appointment of a Special Rapporteur to carry out a visit to the US to study the US administration of justice and the discrimination it perpetrated.

CHARLES GRAVES, of Interfaith International, said that the organization welcomed the decision of the Government of Bahrain to lift its objections to the Convention against Torture. The victims of torture in Bahrain could now take advantage of the new opportunity offered them to appeal directly to the Committee against Torture. Recently in Bahrain, an amnesty was announced. To receive amnesty, prisoners were asked to confess their faults and promise not to perform similar punishable acts again. This was normal procedure for a judge giving clemency to a convict, but many of these prisoners were political prisoners who had been jailed for working for civil liberties.

In Pakistan, there were secret agencies working to eliminate a movement of the Mohajir people of Sindh for genuine political, civil and economic rights. Mohajirs were treated as anti-national, anti-State elements and were defined as terrorists. The problem of the Mohajirs deserved the continued attention of the Commission and the Subcommission; international human-rights bodies should be active in resolving these problems.

ALTAF QADRI, of World Muslim Congress, said the basic objective of administration of justice was to protect the life, property and dignity of every member of a civilized society. The International Covenant on Civil and Political Rights stated that every human being had the inherent right to live. This right was to be protected by law. No one was to be arbitrarily deprived of his life. In certain situations, States actively supported and encouraged impunity for violators of human rights. Impunity had been practised as state policy in Jammu and Kashmir. Law and practice protected perpetrators of gross violations of human rights, allowing them virtual immunity. Impunity had been and remained a serious problem in Jammu and Kashmir.

Indian security forces and state police had committed thousand of serious human-rights violations over the past 10 years. The special laws in force had made the security forces and state police believe they could act with total impunity. A reporter released from torture in 1995 told a correspondent that his interrogators had threatened him, saying they could do anything, could kill anyone in custody. According to India's National Human Rights Commission's report of 1998, 259 complaints of alleged human-rights violations by border security forces had been registered between 1990 and 1997.

TAHIR AZIZ, of International Islamic Federation of Student Organizations, said the administration of justice was a measure of a State's commitment to the promotion and protection of human rights, and a functioning judiciary was essential for safeguarding human rights. In situations of foreign occupation, the position of the judiciary was extremely vulnerable.

There was also the larger question of whether the judiciary imposed by an occupying power could be considered independent. In Jammu and Kashmir, legislation had completely undermined the judiciary in the disputed territory, which was unable to provide any recourse for victims of human-rights violations.

SAMINA IBRAHIM, of the International Institute for Peace said people had the right not to be deprived of life or liberty without due process of law, but there were many States whose Constitutional, judicial and legal systems remained discriminatory. Minorities needed free and fair judicial systems. Pressures from religious fundamentalists were one reason why States were keeping their justice systems under control. The parenthood of modern terrorism could largely be due to fundamentalism.

In Pakistan, a new religion seemed to be catching on. Fundamentalism around the world was responsible for wholesale human-rights abuses, and the administration of justice was also being governed by these considerations. One by one, all institutions of governance, including justice systems, had succumbed to its growing power and its capacity for evil. People were declared non-citizens or second-class citizens; Christians and others were persecuted. Blasphemy laws could be merely a way for the State to maintain public order. The Subcommission should urged States to reform their judicial and legal systems so that they were applicable equally to all, regardless of their faith, beliefs or race.

DIEGO POSTIGO OTERO, of International League for the Rights and Liberation of Peoples, said States continued to fail to live up to their agreements under international treaties. Dictator Pinochet had been requested to be extradited to Spain, and the United States had intimated that it would mediate. The Spanish Government should carry out a fair trial. In Chile, the necessary conditions did not exist for a full, independent trial. The British Government enjoyed some control over extradition. It was important to do away with impunity in order to do away with such criminals as Pinochet.

In Turkey, human-rights violations occurred on a gross and massive scale, and they were no longer an internal issue, but an international crime. Gross and massive human-rights violations were the reason for an upheaval and rebellion of a people for over 10 years in Turkey. Violence engendered violence. Some 30,000 deaths were its consequence and only one man seemed to be held responsible. Many changes must take place in Turkey for the sake of democratization. To save one man's life, such as that of Abdullah Ocalan, would still be a very low price compared to establishing political peace in Turkey.

ELENI PETROULA, of International Federation of Human Rights, said the administration of justice was corrupt in Egypt, Vietnam, Northern Ireland and Peru. Corruption occurred either through legislation giving the Government every power of control over justice; or by underhanded means involving the intimidation of human-rights workers, imprisonment, or harrassment.

The Subcommission should appeal to the Governments of these countries to respect international law in the matter of human rights and to conform to the international instruments they had ratified.

RAJENDA KALIDAS WIMALA GOONESEKERE, Subcommission Expert, said the administration of justice required not only access to the courts but a fearless and independent judiciary. Judicial systems needed judges who could act according to their conscience and the law. How judges were appointed, what criteria was used, how they were promoted, and what happened when a judge's decision went against Government opinion should be examined.

FRANCOISE JANE HAMPSON, Subcommission Expert, said parenthood was more responsibility than procreation. And the Subcommission's responsibility did not end with the simple drafting of a text. It was necessary to ensure that the rules were applied in practice. The Subcommission could not ensure itself that everything was monitored, but it could implement procedures to check compliance. It needed to examine the practice of States to see where it could make recommendations. In addition, there needed to be practical responses where violations were alleged.

The seriousness of a human-rights violation could be measured by the number of people affected, or the severity of the impact. From that perspective, disappearances were a serious violation, an international crime. In a resolution last year, the Subcommission had taken note of forced disappearances. There was concern that was all that would happen for the foreseeable future. The matter should be given priority. Members were urged to think what it would be like to be a friend or family relation of someone who had disappeared. What was most striking was that the reaction of such people was the same -- whether they were parents looking for children, brothers looking for siblings. Their lives were completely taken over by the search for information. While other people had good days and bad days, these people had their every day overshadowed by the disappearance. They were living in a kind of fog. When other relatives died, they could come to terms with it. But they could not grieve for the disappeared person. That would be a betrayal of the hope that he or she was still alive. There was no grave to visit.

If that's what it was like for the families, imagine what it was like for the disappeared people themselves. And their hell would never end. It would be for eternity.

HAROLD SANDOVAL (Columbia) said that changes in the Colombian judicial system had been made, including amendments to the Constitution. The changes were aimed at, among other things: reform of the administration of criminal jurisdiction, steps to ensure the impartiality of military criminal justice, a code which set down the concept of the participation of civil parties in proceedings, and measures that allowed judges to halt impunity for human-rights violations. A special committee had been formed to try and establish measures to strengthen due process and to set up preventive measures to avoid human-rights violations.

FAROOQ HASSAN (Pakistan) said that to enjoy the protection of law and to be treated in accordance with it was the inalienable right of every Pakistani citizen, wherever he might be, and of every other person for the time he was in Pakistan. This guarantee was contained in the Constitution. These rights did not find meaning if there was no independent judiciary, able and willing to exercise its authority and to ensure that actions of the legislature were in compliance with the spirit of the Constitution and that the executive was not abusing its powers. An independent judiciary was indispensable for the functioning of a democratic and pluralist nation.

One of the main challenges to the effective promotion and protection of human rights was terrorism, which constrained the ability of democratic societies to ensure fundamental freedoms and effective administration of justice. Pakistan was making all possible efforts to further strengthen its establishment of a just society.