SUBCOMMISSION FOCUSES ON ADMINISTRATION OF JUSTICE, METHODS OF WORK

MORNING

HR/SC/99/21
19 August 1999


The Subcommission on the Promotion and Protection of Human Rights this morning discussed methods of work, including the length and focus of future sessions, after completing consideration of the protection of minorities. The Subcommission also was able to begin its annual debate on the administration of justice and human rights.

Expert Asbjorn Eide presented a report expressing various opinions of Subcommission members about the operations of the Subcommission. It revealed that members were split about a proposal in which the outcome of its annual debate on human-rights violations in all parts of the world would be presented as a summary to the Commission on Human Rights instead of in the form of country-specific resolutions. There was unanimity, however, that the membership of the Subcommission should not drop below 26. Further, he said, members disagreed with recommendation of the Bureau of the Commission on Human Rights that the Subcommission’s annual meeting should be reduced to two weeks. The standard four weeks were needed, Mr. Eide said, for the Subcommission to complete the substantial tasks contained in its mandate.

There was also a discussion of the expense of Subcommission sessions.

The Subcommission spent the first portion of the meeting wrapping up its deliberations on the prevention of discrimination against minorities. Several countries -- Vietnam, Turkey, Estonia, and Greece -- spoke in exercise of the right of reply.

Mr. Eide, who chairs the Subcommission’s Working Group on Minorities, said religious groups should show tolerance and conform to human rights in their practices and that States, for their part, should be encouraged to recognize the plural makeups of their populations. He cited Sri Lankan efforts at “devolution” to improve minorities’control over their affairs as a useful model. Orchestrated disturbances by majority members against minority members was a grave problem, Mr. Eide said, and if Governments did not ensure protection of minorities in such circumstances, the minorities would take their protection into their own hands, and there would be civil conflict.

Expert Joseph Oloka-Onyango said the Subcommission should direct the Working Group on Minorities to seriously consider not only the right to self-determination as it might apply to minorities, but also to comprehensively examine the question of the right to secession.

On the subject of the administration of justice, Subcommission members paid particular attention to the question of states of emergency and the application of international standards for detained juveniles.

Subcommission Experts Eide, Oloka-Onyango, Erica-Irene A. Daes, Louis Joinet, Marc Bossuyt, Paulo Sergio Pinheiro, Fan Guoxiang, Francoise Jane Hampson, Halima Embarek Warzazi, Hector Fix Zamudio, and El-Hadji Guisse participated in the morning’s discussions.

Representatives of Pakistan (on behalf of the Organization of the Islamic Conference) and Malaysia addressed the meeting.

Non Governmental Organizations speaking during the session were War Resisters International; World Organization against Torture; France Libertes - Fondation Danielle Mitterrand; International Movement for Fraternal Union Among Races and Peoples; and International Pen.

The Subcommission will reconvene this afternoon at 3 to continue its consideration of the administration of justice and human rights.

Documentation

Under its agenda item on administration of justice, the Subcommission had before it a report (E/CN.4/Sub.2/1999/31) listing States which have proclaimed or have continued states of emergency, both before and after June 1997.

Rights of reply

HOANG HUU HAI (Vietnam), in a right of reply referring to debate under the Subcommission’s agenda item on the rights of minorities, said the statements made by the World Evangelical Fellowship and France Libertes - Fondation Danielle Mitterand were not worth responding to, except for the avoidance of misconception. Their information was distorted, in clear contrast to the freedom of religious practice enjoyed by the Vietnamese people. Vietnam had a consistent policy of promoting and protecting the rights of all religious groups, especially minorities.

BULENT MERIC (Turkey), speaking in right of reply, said it was alleged that there was no Turkish minority in Greece. The delegation did not share that opinion. The statement made by the Minister of Foreign Affairs of Greece a few weeks ago that there were Turkish minorities there was well received by Turkish officials. The delegation would have expected that the Greek representative to the Subcommission would have followed the words of his foreign minister.

JANA VANAVESKI (Estonia) in a right of reply, said it was a surprise that somebody would refer to illegal immigrants as minorities. The spokesman of the Russian Federation had been mistaken. The Estonian law on expulsion and denial of re-entry regulated among others the expulsion and denial of re-entry of aliens who had illegally entered Estonia. Estonia was not the only country to have such a law. The opinions of the speaker had not been based on reality.

ELEFTERIOS DOUVOS (Greece), in a right of reply, said the representative of Turkey was not well informed about the statements of the Greek Minister of Foreign Affairs.

ERICA-IRENE A. DAES, Subcommission Expert, said she would like to advise the Government of Turkey to avoid making a right of reply when Turkey was not mentioned. The statement of the representative of Greece yesterday had been relevant to the report of the Working Group on Minorities, and not specifically to Turkey. The statement made by the representative of Turkey was null and void.

BULENT MERIC (Turkey), in a second right of reply, said the view expressed by Mrs. Daes was not the same as the view held by Turkey. It was quite natural that Turkey was interested in its national minorities in other countries.

Statements

ASBJORN EIDE, Subcommission Expert, said the discussion held yesterday was one of the best discussions ever held about minorities in the UN. One of the issues was directly linked to the interchange between Turkey and Greece, and this was the right to self-identification, which minorities had and should be guaranteed. The question of religious intolerance and religious minorities appeared in two different forms, which could become discrimination problems. Religious groups should show tolerance and conform to human rights in their practices, but this was a very comprehensive issue that should be examined from all sides, both religious and secular. The issues that had come up linked to religion were in themselves important and required attention.

States should be encouraged to recognize the plurality of their nations, and the Sri Lankan model of devolution could be applied effectively in other countries. Orchestrated disturbances by majority members against minority members was a grave problem, and if Governments did not ensure protection of minorities, minorities would take their protection into their own hands, and there would be civil conflicts.

JOSEPH OLOKA-ONYANGO, Subcommission Expert, said he felt reluctance to intervene on this agenda item, but throughout the course of yesterday's discussion he had felt a certain discomfort. That discomfort came all the more strongly to the fore when a good colleague was asked what was it that those who belonged to States that were a given, established entity were so afraid of in the quest of minority groups to exercise the right to secession. Why was there addiction over the idea of territorial integrity, the sanctity of State borders, and the inviolability of sovereignty?

These questions forced this intervention, much more as a plea for a reconsidered approach to this issue rather than as an offering of any conclusive answers to it. In this respect, there was another call, by Ms. Iulia Motoc, for the working group to seriously consider not simply the right to self-determination, but also to comprehensively examine the question of a right to secession. Mr. Eide's example of the minority who turned into a majority was a telling instruction of the benefits of pursuing the approach of accommodation. Unfortunately, too many of the cases confronted today were directly the reverse: intransigence, retrenchment, and penultimately further exclusion. The final response had been to seek recourse through rebellion. Eyes should not be turned away from this stark reality.

LOUIS JOINET, Subcommission Expert, said the difficulty of the risk of discussing this possibility was a complicated issue, but some thought should be given to the topic of what the right to self-determination should be in the next century.

MARC BOSSUYT, Subcommission Expert, said it was now up to the Subcommission to decide to transmit to the Commission on Human Rights the guidelines for the work of the Subcommission contained in its working paper on methods of work, and to ask the High Commissioner for Human Rights to have the guidelines disseminated in printed form so that they would be available to all members of the Commission.

ASBJORN EIDE, Subcommission Expert, introducing a working paper on methods of work, said the Subcommission should take into account the views of the Bureau of the Commission on Human Rights, as well as the debates within the Commission. The Subcommission needed to reflect on its own function in the future. It was agreed that it was a think-tank. It considered the administration of justice, the establishment of a Social Forum, and the impact of globalization, among other things.

The Subcommission had discussed its review of country situations, and the opinions had been somewhat divided. Some members had favoured the current method of debate, and at least one member had favoured the outright abolition of debate on the subject. A majority decided that the Subcommission should continue applying its expertise to the issue. The Subcommission assumed that the recommendation of the 1998 Bureau on the avoidance of resolutions related to specific countries already the subject of resolutions passed at that year’s session of the Commission on Human Rights applied only to the agenda item on violations in any country, and thus was not intended to recommend the abolition of resolutions and decisions under other agenda items. The Subcommission also was of the opinion that the 1503 procedure should be maintained in its current four-stage form, but that there was room for improvement.

The Subcommission could not endorse the Bureau recommendation that it should only meet for two weeks. It would be impossible to achieve the substantial tasks involved in its mandate with the necessary quality unless the Subcommission met for four weeks. The Subcommission unanimously held that the number of members should not be reduced below 26, which was required in order to maintain diversity in expertise and to ensure participation from different cultures, traditions and sub-regions.

MARC BOSSUYT, Subcommission Expert, said that among the UN bodies working in the field of human rights, the Subcommission occupied a unique place. It had a wide variety of modes of work. It had always been open to NGOs, as a primary source of information, but without allowing them to become invasive. The studies of the Subcommission had a special value. Rules had been adopted to ensure a judicious choice of topics. For almost 10 years, the Subcommission had examined its work with a view to organizing it better. This had had positive results, and it was hoped that the efforts would culminate in the adoption of guidelines such as those prepared by the Sessional Working Group.

The Subcommission had its own, specific responsibilities, which it had and would acquit as best it could. Efforts to improve Subcommission methods of work should continue and even intensify. The dialogue with the Commission could help in this. The Subcommission should continue to emphasize dialogue and cooperation, without, however, avoiding confrontation at any price.

PAULO SERGIO PINHEIRO, Subcommission Expert, said a number of points just raised could serve as an introduction to a document of suggestions. Mr. Bossuyt's statement should be circulated amongst his colleagues. There should be another item in Mr. Eide's document about budget discussions. Great discretion should be exercised.

LOUIS JOINET, Subcommission Expert, said he approved of the suggestions of Mr. Pinhero, and wondered whether last years document should be annexed. However, this might give the impression that the Subcommission could not evolve further. The other suggestions were quite valuable.

FAN GUOXIANG, Subcommission Expert, said the structure of the working paper was excellent. Functions and methods of work was a good place to put country-specific matters, as opposed to putting them under substantive tasks. In country work, there were different suggestions about whether there should be summaries or resolutions. When there was voting tomorrow, it would be seen if the Subcommission’s thematic resolutions were positive.

TEHMINA JANJUA (Pakistan), speaking on behalf of the Organization of the Islamic Conference, said the OIC took a particular interest in the work of the Subcommission, which had the unique privilege of representing a diversity of cultures, civilizations, and at times extremely divergent views. There had been a great deal of discussion about the Subcommission assuming its original think-tank role. The OIC was convinced that the Subcommission could become an extremely effective body by focusing its energies on assuming the substantive role of providing fresh thinking and new initiatives in the human-rights field. Any consideration of a country situation in an open procedure was an extremely serious matter, and could not be dealt with lightly. Presentation of a country resolution, and especially the recent initiatives to include names of countries in thematic resolutions, was duplicative with other thematic procedures as well as the work of the Commission.

At recent sessions, attempts had been made by some organizations to misrepresent and misinterpret Islam. Much work should be done by the Subcommission to combat and address the unfortunate trend of negative stereotyping, defamation of Islam and Muslims, and Islamophobia. The OIC also was concerned about the activities of some NGOs and their misuse of accreditation procedures in the Subcommission and the Commission on Human Rights.

RATA NUSHIMAN (Malaysia) said the Like Minded Group believed that the Subcommission played and would continue to play an important role in the promotion and protection of human rights. The Subcommission had provided valuable inputs to the Commission on Human Rights, especially in those areas which might be termed “cutting edge”. It should be remembered that many of the subjects discussed that were now taken for granted -- such as the rights of indigenous peoples -- were first taken up by the Subcommission. New areas of study and consideration continued to present themselves. To close the lid on future areas of study would be ill-advised.

For example, it should be noted that the Subcommission had flagged the importance of conducting studies on globalization and its various manifestations on the different aspects of human rights before the Commission had adopted its resolution on globalization and its impact on human rights. Examples such as this were but a few of the reasons why the Subcommission had played such an important role as a think tank for the Commission.

FRANCOISE JANE HAMPSON, Subcommission Expert, said she was concerned about the tone and content of the reply to the Bureau's proposals. There should be no whining, no negative or defensive attitudes. The argument for retaining the Subcommission was that the work done was unique and effective. Business could be conducted efficiently and effectively, and the Commission should be reassured of this. There was an ambiguity in the Bureau's proposals covering thematic resolutions.

LOUIS JOINET, Subcommission Expert, said the problem was that the global strategy of the UN had to be reformed because it was too expensive. This aspect should not be neglected.

FRANCOISE JANE HAMPSON, Subcommission Expert, said she had no problem with the Bureau's claim that the Subcommission was very expensive, since it was unknown to what they were comparing the Subcommission. It could be argued that the Subcommission deserved to exist, even if it was more expensive than anything else.

PAULO SERGIO PINHEIRO, Subcommission Expert, said it was no argument to say that if Subcommission were cheap, it would be entitled to survive.

HALIMA EMBAREK WARZAZI, Subcommission Expert, said that she hoped that the new working methods had been adopted, and that through this adoption the meeting had concluded.

HECTOR FIX-ZAMUDIO, Subcommission Expert, said the draft had three aspects. The first part of the work was a systematic analysis of judicial instruments for the protection of human rights. It was the job of States to provide primary protection of such rights. A second part dealt with the effectiveness of mechanisms. There, it should be taken into account that legal assistance was needed, although a large number of people were not able to receive it. Finally, the draft analyzed the international impact of human-rights instruments.

The United Nations had considered on various occasions these instruments, with a view to improving them. The document referred to various studies, including one on the right to an impartial trial. It was important to have the contribution of Experts on subjects such as due process and the writ of habeas corpus.

The Latin American system had been very imaginative in implementing human-rights-protection instruments. A more in-depth analysis of what had been done there could lead to improvement in other such instruments.

LOUIS JOINET, Subcommission Expert, said that with regard to the approach of Mr. Fix-Zamudio, it was entirely along the lines of what the High Commissioner for Human Rights had indicated in her initial statement, which placed emphasis on application rather than text. States respected this, but it was judges who had to implement the intricacies of domestic law. The priority of the sources of domestic legislation should be allowed. The Working Group should reflect on these concerns, and should adapt to new circumstances.

MICHEL MONOD, of War Resisters International, said that in Europe and in some other countries, conscientious objectors had the possibility of performing alternative civilian service. But in the majority of countries there was no such possibility, even though this right was granted by a 1987 Commission on Human Rights resolution. They were still considered as deserters or traitors, and condemned to heavy punishment -- 5 to 10 years in jail in peacetime, and death in time of war. This year the Austrian Parliament had reinstated Austrian soldiers who had refused to join the Germany army in World War II. Already by May 1998, the German Parliament had reinstated German deserters. In North Korea, deserters were executed. In Iraq, they used to be condemned to have a hand amputated. War invalids of this country pointed out that they could be mistaken for deserters, so now deserters had their ears cut off as punishment. In Algeria, army generals had extrajudicially decided to execute deserters and their immediate families as an example to others.

The organization had investigated the fate of conscientious objectors and deserters in every country. Its work should be taken into consideration by the Experts of the Subcommission, and it was hoped that some day the question would not be how to legitimate the refusal to serve in the army, but rather to find the ways and means to abolish armies.

EL-HADJI GUISSE, Subcommission Expert, said there had been little progress by the abolitionist movement against the death penalty around the world. Some 97 countries maintained the death penalty, and applied it effectively. Since 1997, there had been an increase in the number of applications of the penalty. The majority of those condemned to death had few if any resources, and were thus materially and intellectually incapable of defending themselves. For ethnic, religious or political reasons, the death penalty was often pronounced against people belonging to vulnerable groups. For the same reason, there was an increase in summary executions and forced disappearances. The barbaric acts through which the death penalty was often implemented were deplored.

Some members of vulnerable groups, including minors, pregnant women, mothers of young children, and old people, were executed without their particular circumstances being taken into account. Encouraging the abolition of the death penalty included practical national legislative and regulatory measures that would guarantee equitable trials for those accused, as well as international measures.

ERIC SOTTAS, of World Organization against Torture, said last month Peru voted to withdraw its acceptance of the competence of the Inter-American Court of Human Rights. Before the 55th session of the Commission on Human Rights, thousands of persons were arrested in Bahrain and detained without any charges. The organization welcomed the fact that Moroccan authorities recognized the occurrence of forced disappearances there. There were 112 cases of forced disappearances there. The organization also wanted to draw the Subcommission’s attention to 50 persons being held in India. They had been illegally detained and tortured by the Indian special forces. Effective protection and fundamental rights were based on a strong respect for human rights and an effective judiciary.

MELANIE LE VERGER, of France Libertes - Fondation Danielle Mitterrand, said Iran had just seen a wave of anti-Governmental protests -- the largest since the mullahs had taken power, and which had shaken the whole regime. Over 10 000 people were arrested. Since these events, there had been no news about their fate. Their situation should be clarified by obliging the Iranian authorities to accept a commission of enquiry to check the situation. In Turkey, many Kurdesh detainees did not receive fair trials.

MESFIN, of International Movement for Fraternal Union Among Races and Peoples, said that wherever there was the rule of law, the administration of justice was the cornerstone for stability and for social, cultural, economic and political progress. This was particularly vital for a country like Ethiopia, whose people suffered from abject poverty and constant starvation and famine. The Ethiopian regime had, after nearly eight years, decided to register the Ethiopian Human Rights Council in accordance with the law. It also had taken nearly five years for the courts to free the blocked account of the Ethiopian Human Rights Council. Even if it was true that justice delayed was justice denied, the International Movement was glad to note these results.

On many previous occasions, the attention of the Subcommission had been brought to the total collapse of the judicial system in Ethiopia precipitated by the mass dismissal of the best-trained, most-experienced judges and lawyers in the country, and their replacement with half-baked political cadres. There was no dearth of laws. Ethiopia had an excellent set of civil, criminal and commercial laws. The problem was in the administration of these laws. This problem was created not only by the incompetence of the judges and the prosecutors, but also by the lack of independence and authority of the judicial system as a whole, and by constant transfers of judges and prosecutors who failed to conform to the political pressures of the regime.

FAWZIA ASSAD, of International Pen, said there was a growing pattern of both custodial and non-custodial punishment as a means of silencing Government critics in Turkey. The laws of Turkey rendered it possible for people to be detained for long periods or charged merely for the expression of their views. The protection of human rights, and of the fundamental right to freedom of expression on which all other rights hinged, was at present severely undermined in Turkey.

Only when a complete overhauling of the country's laws and legal processes and systems had taken place could the citizens of Turkey hope to exercise and enjoy their full range of rights.