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SUBCOMMISSION ON HUMAN RIGHTS ADOPTS RESOLUTIONS ON HUMANITARIAN INTERVENTION, PROTECTION OF HUMAN RIGHTS DEFENDERS
20 August 1999
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HR/SC/99/24
20 August 1999
The Subcommission on the Promotion and Protection of Human Rights continued its voting programme this afternoon, adopting resolutions on such topics as humanitarian intervention and the violations of the rights of human rights defenders.
By a vote of 15 in favour, 7 against and 3 abstentions, the Subcommission approved a resolution that expressed its deepest consternation at the serious violations of key provisions of international human rights law, general international law and humanitarian law. The resolution said that “humanitarian interventions” that featured threats or the use of force were juridically unfounded under current general international law. It also requested that States increase the effort to find peaceful solutions to international conflicts.
Another resolution, which was adopted by a vote of 18 in favour, 6 against and one abstention, implored nations to take all necessary measures to ensure the safety of human rights defenders in their countries. The text also listed more than a dozen human rights defenders who had been murderd within the last year, condemning the killings and calling upon the various legal jurisdictions to bring the perpetrators to justice.
Addressing the Subcommission were experts Marc Bossuyt, Fan Guoxiang, Sergio Paulo Pinheiro, El-Hadji Guisse, Asbjorn Eide, Louis Joinet, Halima Embarek Warzazi, Mustapha Mehedi, Jose Bengoa, Erica-Irene Dae, Francoise Hampson, Miguel Alfonso Martinez, and Alberto Diaz Uribe.
Nations speaking on the resolution on human rights defenders were Myanmar, Syrian Arab Republic, Tunisia and Islamic Republic of Iran.
The Subcommission will reconvene on Monday at 10 a.m. to continue its discussion on freedom of movement.
Resolution on Violations of Human Rights and Fundamental Freedoms in all Countries
In a resolution (E/CN.4/Sub.2/1999/L.12/Rev.1), adopted with 15 in favour, 7 against and 3 abstentions, on the question of the violation of human rights and fundamental freedoms in all countries, the Subcommission expressed its deepest consternation at the serious violations of key provisions of international human rights law, general international law and humanitarian law which had occurred and continued to occur in a number of countries and territories, including violations of the rights of the various ethnic or national grounds in the Federal Republic of Yugoslavia; expressed its firmest conviction that the so-called "duty" and "right" to carry out "humanitarian interventions", in particular by means of the threat or use of force, was juridically totally unfounded under current general international law and consequently could not be considered as a justification for violations of the principles of ius cogens enshrined in Article 2 of the Charter of the United Nations; and called upon all States to increase their efforts to achieve international cooperation in the search for peaceful solutions to international humanitarian problems and to comply strictly, in their actions towards that purpose, with the basic principles and norms of current general international law and other pertinent norms and standards of international human rights law and international humanitarian law, in particular those governing the functioning of the main United Nations bodies, accountability for war crimes, the realization and protection of the rights of national or ethnic minorities, and the protection of the civilian population and civilian installations in cases of military operations.
Statements on Resolution of Human Rights and Fundamental Freedoms in all Countries
MARC BOSSUYT, Subcommission Expert, said that the resolution refers to the situation in Kosovo. The resolution was not a matter of a human rights situation but a matter of a use of force and it was within the competence of the Security Council. The purpose of the resolution was to stop human rights massacres. It would be a bad idea to make a blanket condemnation of the operation in Kosovo. Those responsible for human rights violations would not be condemned under the resolution. A vote was requested.
FAN GUOXIANG, Subcommission Expert, said his interpretation of the draft resolution was different from that of Mr. Bossuyt. There were several meanings, first concerning whether it held any water to conduct human clearing operations. Second, any country should not be allowed to decide to conduct a humanitarian operation, unless it were in the norms of international law. An outbreak of large-scale violations of human rights would imply, according to the resolution, that the international community had a right to intervene, and the process of this intervention, under the form of a code of conduct, should be determined. The key of the discussion should be understood.
PAULO SERGIO PINHEIRO, Special Rapporteur, said that the meaning of
the resolution was to think about and discuss Kosovo without condemning the whole operation.
EL-HADJI GUISSE, Subcommission Expert, said the underlying spirit of this resolution lay in the Charter. In order to achieve peace and have respect for human rights, this resolution should be passed. Today the international community was taking action on human rights violations. If there were not such serious consequences as the massive violations of human rights, this resolution would be pointless, but serious violations had derived from international intervention. The need had made itself felt to sound the alarm so that the international community carry out fewer abuses.
ASBJORN EIDE, Subcommission Expert, said that he could not agree that there were no conditions where arms could be used. He agreed that what was needed was a debate to increase the role of the international community to seek peace. The way the resolution was drafted was not acceptable, as it precluded just the kind of debate that was needed.
LOUIS JOINET, Subcommission Expert, said he remembered many cases of humanitarian action, including Vietnam, and agreed that international action had repercussions and could cause a holocaust of human rights violations. There were only bad solutions available. If the function of the international community were only to let genocide go ahead, then this would be terrible. The Subcommission was powerless. There was a problem, and the resolution should perhaps be withdrawn because the subject was serious and more work should be done on it. The subject was on the edge of the competence of the Subcommission, and should be given more thought.
HALIMA EMBAREK WARZAZI, Subcommission Expert, said several years ago resolutions were adopted to prevent catastrophes. With all the capabilities that some countries had, if only with their satellites and the measures that could have been taken, catastrophe could have been avoided. For years there were warnings about Kosovo, but it would seem those problems were not of interest to the countries at the time, and the situation was allowed to degenerate and rot. Why was it not prevented? The resolution said mass violations of human rights had to be prevented. There was a reason for the resolution.
MARC BOSSUYT, Subcommission Expert, said he had never heard a draft resolution be interpreted in so many ways. In this context, it was impossible to adopt a resolution that could be interpreted in so many ways. This was why a vote was required.
HALIMA EMBAREK WARZAZI, Subcommission Expert, said it was a matter of conscience to act and the vote should go ahead.
Resolution on Violations of the Rights of Human Rights Defenders in all Countries
In a resolution (E/CN.4/Sub.2/1999/L.15) adopted by 18 in favour,
6 against and one abstention, on violations of the rights of human rights defenders in all countries, the Subcommission urged each State to take any measures necessary within its jurisdiction to ensure the effective respect of its obligations in the field of human rights, in accordance with the provisions of various international instruments, including the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, and to guarantee to individuals, groups, associations, organizations and organs of society the necessary conditions to exercise fully their activities in favour of the recognition, promotion and defense of human rights; urged each State to take any measures necessary within its own jurisdiction to ensure the security of all persons covered by the Declaration who were being repressed, harassed or threatened anywhere in the world; strongly condemned the murders of the following persons, by whomsoever committed, and called upon the Governments concerned to carry out thorough investigations to identify the perpetrators and to bring them to justice: Jamie Garzon (Colombia), Everardo de Jesus Puerta and Julio Ernesto Gonzales (Colombia), Ingrid Washinawakatok (Colombia/Venezuela), Saul Filormo Canar Pauta (Ecuador), Rolando Duarte and Jose Alfredo Chacon Ramirez (Guatemala), Mohammad Mokhtari (Iran), Neelan Thiruchelvam (Sri Lanka), Bajram Kelmendi (Kosovo), and Rosemary Nelson (Northern Ireland); called upon the Governments concerned to ensure that crimes committed against human rights defenders do not go unpunished, to allow and facilitate all necessary inquiry and to ensure judgement by a civil tribunal and punishment of the perpetrators as well as compensation of the families if the victims, including for killings which occurred a long time ago, as recommended by the Special Rapporteur on the independence of judges and lawyers; requested the Government of Myanmar to ensure the security of Aung San Suu Ki and the members of the National League for Democracy, and in particular to guarantee their freedom of movement and expression, and urged the Government to invite the Special Rapporteur on the situation of human rights in Myanmar to visit its territory; requested the United Nations High Commissioner for Human Rights to undertake inquiries about the security of the persons listed in the annex to the present resolution and to inform the Subcommission, at its 52nd session, of the results of her inquiries; requested the High Commissioner to transmit the present resolution to all States; and decided to remain seized of the questions of violations of the rights of human rights defenders at its 52nd session.
EL-HADJI GUISSE, Subcommission Expert, said he withdrew his name from the cosponsors since this was a very curious resolution, which only applied to certain countries. The list of human rights defenders included none in Africa, despite the murder and imprisonment of such defenders. The Subcommission was once again showing double standards. No investigation into African human rights defenders had been made. This should be a general resolution, defending their rights in every country of the world. No name should be on the resolution, but should be in a list annexed to the resolution, so as to rebalance it.
ALBERTO DIAZ URIBE, Subcommission Expert, said that there were initiatives to seek names from the region of Africa. It was not an oversight, but it could not go further with names because nobody knew what names. The situation clearly affected Africa.
A Colombian journalist who was recently murdered was included to appeal to the Columbian authorities to bring the perpetrators to justice and it was also a way to pay tribute to him and other human rights activists.
MUSTAPHA MEHEDI, Subcommission Expert, said this was a good draft resolution, insofar as it defended human rights defenders. Today, there was surprise to see that the victims of terrorist attacks were not included, and they should be mentioned in an amendment of the text.
LOUIS JOINET, Subcommission Expert, said that this was a general resolution concerning human rights defenders. This was because there was finally a declaration on human rights defenders. The resolution would soon disappear; it should be implemented as quickly as possible. The search for names to put on the list had been very thorough. If there are new names to be added by the experts, they would be happy to add them.
JOSE BENGOA, Subcommission Expert, said that the report drew a distinction between minorities and indigenous peoples. But, in Asia and Africa, there were no examples of indigenous peoples, and the various groups should be recognized as minorities. Many of these people considered themselves as indigenous peoples to gain greater recognition from the international community. The defining term was not exclusivity; there wasn't a transmigration. Minorities and indigenous peoples seemed to represent a continuum with no established frontiers. The basis of the discussion was the difference between a nation and its ethnic group.
The validity of treaties and their universalities was very complex. But the treaties were different in different cultural contexts. Concerning the question: "Are indigenous peoples nations?"-- for some this was central to international policy. The conclusion in the report was that there was not sufficient legal arguments that indigenous peoples have lost their international status. The rapporteur recognized the right of all people to the right to determination. There was no distinction between minority groups and other peoples of the world. The matter needs further study, but it was necessary to include the concept of ethno genesis, because ethnicity was an historical process. It did not only happen once. An analysis of the various principles of the right to determination was needed. If peoples were placed under the category of nations, the only thing that would separate them was power, force and the way in which they were being treated. Therefore, autonomy and self-government was not a substitute. The challenge was to see how this universal principle of self-determination would be exercised in a world which was increasingly globalized. More study was needed.
FAN GUOXIANG, Subcommission Expert, said the draft resolution was not sufficiently mature. The term "human rights defender" had not been sufficiently defined and was not a formally recognized term. The Subcommission should not interpret it in a one-sided manner, or it would be defying the General Assembly. There was no sense in saying the document was mature, since there were many deficiencies in it. The Subcommission should be prudent in showing its judgement on specific cases as were mentioned in the text. The co-sponsors should think three times before acting on it. The Subcommission should not need to adopt the resolution.
EL-HADJI GUISSE, Subcommission Expert, withdrew his co-sponsorship and asked for a vote.
The representative of (Myanmar) said that the Subcommissions's role should be that of a think tank. It should not duplicate actions taken in the Commission. The Government of Myanmar took responsibility for the whole country, not just individuals or groups. The ICRC had been invited to come to the country to participate. More insurgent groups had joined into the legal forum recently.
The representative of (Syrian Arab Republic) said the country respected human rights, and cooperated with all United Nations bodies, including the Subcommission. It was quoted in the annex to L.15 on an individual who was camouflaged as a human rights defender, and the Commission on Human Rights had taken action on him as such. The case had also been studied by a Working Group. If it were studied objectively, then the Government of Syria should be heard. The resolution was thus selective, and not transparent, since countries mentioned were not present in the Subcommission to defend themselves. The subject was being studied by the Government as a candidate for amnesty, and information on this would be transmitted to the Subcommission.
The representative of (Tunisia) said that his country worked tirelessly to consolidate its activities in the field of human rights. It participated in the Rights of Human Rights Defenders. The draft resolution in question was not the way to obtain the application and respect for this Convention. There was a subjective nature to the list, and it ran the risk of becoming impartial when mentioning some individuals and not others. As it was subjective, it ran the risk of being unjust. There was a flagrant bias in those who initiated the resolution.
The representative of (Islamic Republic of Iran) said the cases mentioned in the resolution had been strongly condemned by the President and other high-ranking officials. An investigation had taken place into the case, under the supervision of the Court of Tehran. Under this procedure, the principles and individuals had been identified. The investigations were continuing, and there had been prosecutions. The people charged with the murder were not affiliated to any political group. The investigation was ongoing, and all information was being made public. Having given highest priority to this, the officials had done their utmost to have the guilty brought to justice. Therefore, all mention of the case in the resolution was irrelevant and should be struck out.
Statements on Resolution upon the Death Penalty, particularly in relation to juvenile offenders
HALIMA EMBAREK WARZAZI, Subcommission Expert, said that there were several inconsistencies in the final preambular paragraph of the resolution. To eliminate the practice of the execution of juveniles, it should be noted which countries regularly conduct such executions.
ERICA-IRENE A. DAES, Subcommission Expert, said she shared some of the views included in the resolution. However, some of the countries concerned were in the process of drafting new legislation which would conform to international norms. The Subcommission should ensure that all the countries concerned moved in this direction. It should be considered whether the desired end would be reached by naming the countries. In this case, a purely thematic resolution, without naming countries, could be a better solution, since it would show them the path. Public decisions on such an important subject could make it more difficult for the countries to change the legislation due to public reactions to the resolution.
FAN GUOXIANG, Subcommission Expert, said that, as for the matter of capital punishment, it should be discussed with the countries concerned. It should not name call as this was not the way to get results. With regard to Ms. Warzazi's proposal, five Islamic countries should not be deleted, and only the United States left, as this could give the impression that the debate was not even-handed. All names should be deleted. This way there would be a more concentrated in a thematic resolution.
MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said the purpose guiding the draft resolution was absolutely commendable. The situation could not be remedied. It was felt that the issue would remain in penal codes as long as time existed. Many parts of the draft resolution could be shared in, but there were matters of deep concern, such as those mentioned by Ms. Warzazi and Ms. Daes. There was concern for a preambular paragraph that said the death penalty was in use without trial, and was used lightly. If this were true, it would be against international humanitarian law. Criminal policy, prison policy and general policy were what was being dealt with. In an attempt to be objective and strike balance, different concepts should be incorporated. The relevance of the few should be included. The draft resolution was founded on the best possible intentions, but did not permit Mr. Martinez to associate himself with it. As Ms. Warzazi had suggested, a balancing should be done.
EL-HADJI GUISSE, Subcommission Expert, said that he welcomed the proposal by Ms. Warzazi. The speaker had reported on trends and tendencies in the death penalty before. However, the proposal by Ms. Warzazi encouraged those countries that had been moving forward towards abolition of the death penalty. The proposal would round out the aspirations to see the death penalty abolished, particularly for juveniles.
FRANCOISE JANE HAMPSON, Subcommission Expert, said operative paragraphs 1 and 2 only concerned the execution of juvenile offenders. The annex could be deleted, but the sources were reliable, one of them being a Special Rapporteur. Much care should be taken in the area of national legislation, since there were cases of execution of juveniles in States that had ratified the Convention on the Rights of the Child. It was not an answer to focus simply on the USA, since other States had not implemented the Convention above the board. The amendments proposed by Ms. Warzazi were refused as unfair and in order to avoid offending the principle of duplication, it was important to name the States that had used the death penalty since 1990. The resolution was even-handed and clear.
LOUIS JOINET, Subcommission Expert, said that whether the countries were named or not, he would go along with the debate.
FAN GUOXIANG, Subcommission Expert, proposed a separate amendment, to be a sub-amendment to that of Ms. Warzazi, which went one step further, suggesting a deletion of the final preambular paragraph, and a deletion of the annex.
EL-HADJI GUISSE, Subcommission Expert, said that there was agreement with the deletion. Get rid of the annex and the names of the countries. But then there must be the co-sponsors agreement. The annex only should be deleted and not the opening paragraphs.
HR/SC/99/24
20 August 1999
The Subcommission on the Promotion and Protection of Human Rights continued its voting programme this afternoon, adopting resolutions on such topics as humanitarian intervention and the violations of the rights of human rights defenders.
By a vote of 15 in favour, 7 against and 3 abstentions, the Subcommission approved a resolution that expressed its deepest consternation at the serious violations of key provisions of international human rights law, general international law and humanitarian law. The resolution said that “humanitarian interventions” that featured threats or the use of force were juridically unfounded under current general international law. It also requested that States increase the effort to find peaceful solutions to international conflicts.
Another resolution, which was adopted by a vote of 18 in favour, 6 against and one abstention, implored nations to take all necessary measures to ensure the safety of human rights defenders in their countries. The text also listed more than a dozen human rights defenders who had been murderd within the last year, condemning the killings and calling upon the various legal jurisdictions to bring the perpetrators to justice.
Addressing the Subcommission were experts Marc Bossuyt, Fan Guoxiang, Sergio Paulo Pinheiro, El-Hadji Guisse, Asbjorn Eide, Louis Joinet, Halima Embarek Warzazi, Mustapha Mehedi, Jose Bengoa, Erica-Irene Dae, Francoise Hampson, Miguel Alfonso Martinez, and Alberto Diaz Uribe.
Nations speaking on the resolution on human rights defenders were Myanmar, Syrian Arab Republic, Tunisia and Islamic Republic of Iran.
The Subcommission will reconvene on Monday at 10 a.m. to continue its discussion on freedom of movement.
Resolution on Violations of Human Rights and Fundamental Freedoms in all Countries
In a resolution (E/CN.4/Sub.2/1999/L.12/Rev.1), adopted with 15 in favour, 7 against and 3 abstentions, on the question of the violation of human rights and fundamental freedoms in all countries, the Subcommission expressed its deepest consternation at the serious violations of key provisions of international human rights law, general international law and humanitarian law which had occurred and continued to occur in a number of countries and territories, including violations of the rights of the various ethnic or national grounds in the Federal Republic of Yugoslavia; expressed its firmest conviction that the so-called "duty" and "right" to carry out "humanitarian interventions", in particular by means of the threat or use of force, was juridically totally unfounded under current general international law and consequently could not be considered as a justification for violations of the principles of ius cogens enshrined in Article 2 of the Charter of the United Nations; and called upon all States to increase their efforts to achieve international cooperation in the search for peaceful solutions to international humanitarian problems and to comply strictly, in their actions towards that purpose, with the basic principles and norms of current general international law and other pertinent norms and standards of international human rights law and international humanitarian law, in particular those governing the functioning of the main United Nations bodies, accountability for war crimes, the realization and protection of the rights of national or ethnic minorities, and the protection of the civilian population and civilian installations in cases of military operations.
Statements on Resolution of Human Rights and Fundamental Freedoms in all Countries
MARC BOSSUYT, Subcommission Expert, said that the resolution refers to the situation in Kosovo. The resolution was not a matter of a human rights situation but a matter of a use of force and it was within the competence of the Security Council. The purpose of the resolution was to stop human rights massacres. It would be a bad idea to make a blanket condemnation of the operation in Kosovo. Those responsible for human rights violations would not be condemned under the resolution. A vote was requested.
FAN GUOXIANG, Subcommission Expert, said his interpretation of the draft resolution was different from that of Mr. Bossuyt. There were several meanings, first concerning whether it held any water to conduct human clearing operations. Second, any country should not be allowed to decide to conduct a humanitarian operation, unless it were in the norms of international law. An outbreak of large-scale violations of human rights would imply, according to the resolution, that the international community had a right to intervene, and the process of this intervention, under the form of a code of conduct, should be determined. The key of the discussion should be understood.
PAULO SERGIO PINHEIRO, Special Rapporteur, said that the meaning of
the resolution was to think about and discuss Kosovo without condemning the whole operation.
EL-HADJI GUISSE, Subcommission Expert, said the underlying spirit of this resolution lay in the Charter. In order to achieve peace and have respect for human rights, this resolution should be passed. Today the international community was taking action on human rights violations. If there were not such serious consequences as the massive violations of human rights, this resolution would be pointless, but serious violations had derived from international intervention. The need had made itself felt to sound the alarm so that the international community carry out fewer abuses.
ASBJORN EIDE, Subcommission Expert, said that he could not agree that there were no conditions where arms could be used. He agreed that what was needed was a debate to increase the role of the international community to seek peace. The way the resolution was drafted was not acceptable, as it precluded just the kind of debate that was needed.
LOUIS JOINET, Subcommission Expert, said he remembered many cases of humanitarian action, including Vietnam, and agreed that international action had repercussions and could cause a holocaust of human rights violations. There were only bad solutions available. If the function of the international community were only to let genocide go ahead, then this would be terrible. The Subcommission was powerless. There was a problem, and the resolution should perhaps be withdrawn because the subject was serious and more work should be done on it. The subject was on the edge of the competence of the Subcommission, and should be given more thought.
HALIMA EMBAREK WARZAZI, Subcommission Expert, said several years ago resolutions were adopted to prevent catastrophes. With all the capabilities that some countries had, if only with their satellites and the measures that could have been taken, catastrophe could have been avoided. For years there were warnings about Kosovo, but it would seem those problems were not of interest to the countries at the time, and the situation was allowed to degenerate and rot. Why was it not prevented? The resolution said mass violations of human rights had to be prevented. There was a reason for the resolution.
MARC BOSSUYT, Subcommission Expert, said he had never heard a draft resolution be interpreted in so many ways. In this context, it was impossible to adopt a resolution that could be interpreted in so many ways. This was why a vote was required.
HALIMA EMBAREK WARZAZI, Subcommission Expert, said it was a matter of conscience to act and the vote should go ahead.
Resolution on Violations of the Rights of Human Rights Defenders in all Countries
In a resolution (E/CN.4/Sub.2/1999/L.15) adopted by 18 in favour,
6 against and one abstention, on violations of the rights of human rights defenders in all countries, the Subcommission urged each State to take any measures necessary within its jurisdiction to ensure the effective respect of its obligations in the field of human rights, in accordance with the provisions of various international instruments, including the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, and to guarantee to individuals, groups, associations, organizations and organs of society the necessary conditions to exercise fully their activities in favour of the recognition, promotion and defense of human rights; urged each State to take any measures necessary within its own jurisdiction to ensure the security of all persons covered by the Declaration who were being repressed, harassed or threatened anywhere in the world; strongly condemned the murders of the following persons, by whomsoever committed, and called upon the Governments concerned to carry out thorough investigations to identify the perpetrators and to bring them to justice: Jamie Garzon (Colombia), Everardo de Jesus Puerta and Julio Ernesto Gonzales (Colombia), Ingrid Washinawakatok (Colombia/Venezuela), Saul Filormo Canar Pauta (Ecuador), Rolando Duarte and Jose Alfredo Chacon Ramirez (Guatemala), Mohammad Mokhtari (Iran), Neelan Thiruchelvam (Sri Lanka), Bajram Kelmendi (Kosovo), and Rosemary Nelson (Northern Ireland); called upon the Governments concerned to ensure that crimes committed against human rights defenders do not go unpunished, to allow and facilitate all necessary inquiry and to ensure judgement by a civil tribunal and punishment of the perpetrators as well as compensation of the families if the victims, including for killings which occurred a long time ago, as recommended by the Special Rapporteur on the independence of judges and lawyers; requested the Government of Myanmar to ensure the security of Aung San Suu Ki and the members of the National League for Democracy, and in particular to guarantee their freedom of movement and expression, and urged the Government to invite the Special Rapporteur on the situation of human rights in Myanmar to visit its territory; requested the United Nations High Commissioner for Human Rights to undertake inquiries about the security of the persons listed in the annex to the present resolution and to inform the Subcommission, at its 52nd session, of the results of her inquiries; requested the High Commissioner to transmit the present resolution to all States; and decided to remain seized of the questions of violations of the rights of human rights defenders at its 52nd session.
EL-HADJI GUISSE, Subcommission Expert, said he withdrew his name from the cosponsors since this was a very curious resolution, which only applied to certain countries. The list of human rights defenders included none in Africa, despite the murder and imprisonment of such defenders. The Subcommission was once again showing double standards. No investigation into African human rights defenders had been made. This should be a general resolution, defending their rights in every country of the world. No name should be on the resolution, but should be in a list annexed to the resolution, so as to rebalance it.
ALBERTO DIAZ URIBE, Subcommission Expert, said that there were initiatives to seek names from the region of Africa. It was not an oversight, but it could not go further with names because nobody knew what names. The situation clearly affected Africa.
A Colombian journalist who was recently murdered was included to appeal to the Columbian authorities to bring the perpetrators to justice and it was also a way to pay tribute to him and other human rights activists.
MUSTAPHA MEHEDI, Subcommission Expert, said this was a good draft resolution, insofar as it defended human rights defenders. Today, there was surprise to see that the victims of terrorist attacks were not included, and they should be mentioned in an amendment of the text.
LOUIS JOINET, Subcommission Expert, said that this was a general resolution concerning human rights defenders. This was because there was finally a declaration on human rights defenders. The resolution would soon disappear; it should be implemented as quickly as possible. The search for names to put on the list had been very thorough. If there are new names to be added by the experts, they would be happy to add them.
JOSE BENGOA, Subcommission Expert, said that the report drew a distinction between minorities and indigenous peoples. But, in Asia and Africa, there were no examples of indigenous peoples, and the various groups should be recognized as minorities. Many of these people considered themselves as indigenous peoples to gain greater recognition from the international community. The defining term was not exclusivity; there wasn't a transmigration. Minorities and indigenous peoples seemed to represent a continuum with no established frontiers. The basis of the discussion was the difference between a nation and its ethnic group.
The validity of treaties and their universalities was very complex. But the treaties were different in different cultural contexts. Concerning the question: "Are indigenous peoples nations?"-- for some this was central to international policy. The conclusion in the report was that there was not sufficient legal arguments that indigenous peoples have lost their international status. The rapporteur recognized the right of all people to the right to determination. There was no distinction between minority groups and other peoples of the world. The matter needs further study, but it was necessary to include the concept of ethno genesis, because ethnicity was an historical process. It did not only happen once. An analysis of the various principles of the right to determination was needed. If peoples were placed under the category of nations, the only thing that would separate them was power, force and the way in which they were being treated. Therefore, autonomy and self-government was not a substitute. The challenge was to see how this universal principle of self-determination would be exercised in a world which was increasingly globalized. More study was needed.
FAN GUOXIANG, Subcommission Expert, said the draft resolution was not sufficiently mature. The term "human rights defender" had not been sufficiently defined and was not a formally recognized term. The Subcommission should not interpret it in a one-sided manner, or it would be defying the General Assembly. There was no sense in saying the document was mature, since there were many deficiencies in it. The Subcommission should be prudent in showing its judgement on specific cases as were mentioned in the text. The co-sponsors should think three times before acting on it. The Subcommission should not need to adopt the resolution.
EL-HADJI GUISSE, Subcommission Expert, withdrew his co-sponsorship and asked for a vote.
The representative of (Myanmar) said that the Subcommissions's role should be that of a think tank. It should not duplicate actions taken in the Commission. The Government of Myanmar took responsibility for the whole country, not just individuals or groups. The ICRC had been invited to come to the country to participate. More insurgent groups had joined into the legal forum recently.
The representative of (Syrian Arab Republic) said the country respected human rights, and cooperated with all United Nations bodies, including the Subcommission. It was quoted in the annex to L.15 on an individual who was camouflaged as a human rights defender, and the Commission on Human Rights had taken action on him as such. The case had also been studied by a Working Group. If it were studied objectively, then the Government of Syria should be heard. The resolution was thus selective, and not transparent, since countries mentioned were not present in the Subcommission to defend themselves. The subject was being studied by the Government as a candidate for amnesty, and information on this would be transmitted to the Subcommission.
The representative of (Tunisia) said that his country worked tirelessly to consolidate its activities in the field of human rights. It participated in the Rights of Human Rights Defenders. The draft resolution in question was not the way to obtain the application and respect for this Convention. There was a subjective nature to the list, and it ran the risk of becoming impartial when mentioning some individuals and not others. As it was subjective, it ran the risk of being unjust. There was a flagrant bias in those who initiated the resolution.
The representative of (Islamic Republic of Iran) said the cases mentioned in the resolution had been strongly condemned by the President and other high-ranking officials. An investigation had taken place into the case, under the supervision of the Court of Tehran. Under this procedure, the principles and individuals had been identified. The investigations were continuing, and there had been prosecutions. The people charged with the murder were not affiliated to any political group. The investigation was ongoing, and all information was being made public. Having given highest priority to this, the officials had done their utmost to have the guilty brought to justice. Therefore, all mention of the case in the resolution was irrelevant and should be struck out.
Statements on Resolution upon the Death Penalty, particularly in relation to juvenile offenders
HALIMA EMBAREK WARZAZI, Subcommission Expert, said that there were several inconsistencies in the final preambular paragraph of the resolution. To eliminate the practice of the execution of juveniles, it should be noted which countries regularly conduct such executions.
ERICA-IRENE A. DAES, Subcommission Expert, said she shared some of the views included in the resolution. However, some of the countries concerned were in the process of drafting new legislation which would conform to international norms. The Subcommission should ensure that all the countries concerned moved in this direction. It should be considered whether the desired end would be reached by naming the countries. In this case, a purely thematic resolution, without naming countries, could be a better solution, since it would show them the path. Public decisions on such an important subject could make it more difficult for the countries to change the legislation due to public reactions to the resolution.
FAN GUOXIANG, Subcommission Expert, said that, as for the matter of capital punishment, it should be discussed with the countries concerned. It should not name call as this was not the way to get results. With regard to Ms. Warzazi's proposal, five Islamic countries should not be deleted, and only the United States left, as this could give the impression that the debate was not even-handed. All names should be deleted. This way there would be a more concentrated in a thematic resolution.
MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said the purpose guiding the draft resolution was absolutely commendable. The situation could not be remedied. It was felt that the issue would remain in penal codes as long as time existed. Many parts of the draft resolution could be shared in, but there were matters of deep concern, such as those mentioned by Ms. Warzazi and Ms. Daes. There was concern for a preambular paragraph that said the death penalty was in use without trial, and was used lightly. If this were true, it would be against international humanitarian law. Criminal policy, prison policy and general policy were what was being dealt with. In an attempt to be objective and strike balance, different concepts should be incorporated. The relevance of the few should be included. The draft resolution was founded on the best possible intentions, but did not permit Mr. Martinez to associate himself with it. As Ms. Warzazi had suggested, a balancing should be done.
EL-HADJI GUISSE, Subcommission Expert, said that he welcomed the proposal by Ms. Warzazi. The speaker had reported on trends and tendencies in the death penalty before. However, the proposal by Ms. Warzazi encouraged those countries that had been moving forward towards abolition of the death penalty. The proposal would round out the aspirations to see the death penalty abolished, particularly for juveniles.
FRANCOISE JANE HAMPSON, Subcommission Expert, said operative paragraphs 1 and 2 only concerned the execution of juvenile offenders. The annex could be deleted, but the sources were reliable, one of them being a Special Rapporteur. Much care should be taken in the area of national legislation, since there were cases of execution of juveniles in States that had ratified the Convention on the Rights of the Child. It was not an answer to focus simply on the USA, since other States had not implemented the Convention above the board. The amendments proposed by Ms. Warzazi were refused as unfair and in order to avoid offending the principle of duplication, it was important to name the States that had used the death penalty since 1990. The resolution was even-handed and clear.
LOUIS JOINET, Subcommission Expert, said that whether the countries were named or not, he would go along with the debate.
FAN GUOXIANG, Subcommission Expert, proposed a separate amendment, to be a sub-amendment to that of Ms. Warzazi, which went one step further, suggesting a deletion of the final preambular paragraph, and a deletion of the annex.
EL-HADJI GUISSE, Subcommission Expert, said that there was agreement with the deletion. Get rid of the annex and the names of the countries. But then there must be the co-sponsors agreement. The annex only should be deleted and not the opening paragraphs.
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