SUBCOMMISSION ON PROMOTION AND PROTECTION OF HUMAN RIGHTS BEGINS DEBATE ON ADMINISTRATION OF JUSTICE

Subcommission on the Promotion
and Protection of Human Rights
53rd session
3 August 2001
Morning




The Subcommission on the Promotion and Protection of Human Rights began consideration this morning of topics related to the administration of justice, hearing from a series of non-governmental organizations (NGOs) charging violations of judicial standards in various countries and regions.

Several Subcommission Experts spoke on alleged violations of administration of justice committed by United Nations peacekeeping forces. It was suggested that the Subcommission might seek to set up standards for coping with situations where peacekeeping troops had to deal with persons accused of human-rights violations in locations where functioning judicial systems did not exist.

Among the themes raised by NGOs, International Educational Development contended that detainees during armed conflicts were protected under the Geneva Conventions but that many Governments avoided such protections by terming detainees "terrorists" and holding and trying them under anti-terrorism laws that frequently did not provide sufficient judicial and human-rights safeguards.

A representative of Franciscans International said extensive research indicated that application of the death penalty did not deter crime and hence that alternatives should be sought by those countries that still used capital punishment.

And a representative of Interfaith International said the Subcommission should advocate the adoption of extradition treaties agreed to by all United Nations member countries, as that would reduce the frequency of crimes against humanity by making it harder for perpetrators to escape justice by fleeing to countries from which they could not be extradited.

Earlier in the morning the Subcommission concluded its annual review of the question of human rights violations in any country, hearing remarks from several of its Experts on such topics as the plight of refugees from the Democratic People's Republic of Korea, the problem of the dumping of toxic wastes in developing countries, and recent Israeli assassinations of Palestinians.

Addressing the meeting were Subcommission members Soo Gil Park, Erica-Irene A. Daes, Louis Joinet, Francoise Jane Hampson, Asbjorn Eide, and El-Haji Guisse.

Also providing statements were representatives of the following non-governmental organizations: the European Union of Public Relations; the International Federation of Human Rights Leagues; the Asian Centre for Organizational Research and Development; the International Association of Democratic Lawyers; Franciscans International; the World Organization against Torture; the Indian Council of Education; the Indian Law Resource Centre; the World Federation of Democratic Youth; the International Confederation of Free Trade Unions; and Young Doctors Without Frontiers -- Tunisia.

The Subcommission will reconvene at 3 p.m. to continue debate on administration of justice.

Administration of justice

Under this agenda item, the Subcommission has before it two documents.

A report of the Office of the High Commissioner for Human Rights (E/CN.4/Sub.2/2001/6) regarding the question of human rights and states of emergency lists and details countries or territories in which a state of emergency had been proclaimed before July 1999 and continued thereafter. The report also lists countries and territories that proclaimed a state of emergency between July 1999 and May 2001.

And a note by the Secretary-General (E/CN.4/Sub.2/2001/8, and Corr.1) on mass and flagrant violations of human rights which constitute crimes against humanity and which took place during the colonial period, wars of conquest and slavery discusses means and proposals which could be adopted in order to provide reparation to the victims of colonization, wars of conquest and slavery, and to honour their memory. The note also provides a contemporary definition of crimes against humanity.

Statements on the violations of human rights in any country

SOO GIL PARK, Subcommission Expert, said the United Nations had been the key actor in the advancement of human rights, and if it did not stay at the forefront of developments in that field it would fail in its most fundamental mission. Challenges remaining included the persistence of ethnic and religious conflicts and the continuing prevalence of poverty. In addition, women and children were too often the targets of brutal acts during conflicts. Of late, the human rights agenda had begun to reflect these challenges.

Among matters requiring urgent attention was the plight of citizens of the Democratic People=s Republic of Korea, who were fleeing to neighbouring States seeking mere survival. Despite the gravity of the human-rights violations these people had suffered, nowhere near enough had been done to help them. Refugees from the Democratic People's Republic of Korea legitimately needed and deserved protection and humane treatment, but it was clear that States had the primary power in determining how refugees were treated, and generally a State's policy on refugees had less to do with humane matters than with political matters. Many refugees were being sent home forcibly; others, especially women, were being taken advantage of and trafficked for obscene purposes. Several hundred thousand refugees from the Democratic People's Republic of Korea were scattered around the hills of northern China, living desperate existences, fearing that they would be caught and sent home to starve. Some means of redress needed to be developed by the Office of the United Nations High Commissioner for Refugees (UNHCR), the country involved, and non-governmental organizations for the rescue of these people. There should be an international protection network for these refugees.

Another matter of human-rights concern in Asia was misguiding teaching of the history of the Second World War in Japan, thus causing further injury to nearby countries that had suffered during the war. Recently Japan had approved a junior high school textbook that whitewashed what had happened during the war and did not deal honestly or fairly with such issues as the "comfort women". International calls had been made for retraction of such textbooks, as they were an affront to human dignity.

ERICA-IRENE DAES, Subcommission Expert, said the life, health and environment of thousands of people, in particular in the developing world, were threatened by the illicit movement and dumping of toxic and dangerous products and wastes. In particular, the small indigenous population of the Marshall Islands had for a long time faced threats of life and serious problems of health, and continued to suffer from the adverse effects of the illicit movement and dumping of toxic and other dangerous products and wastes, which was systematically dumped by a super power. Reliable information confirmed the increasing rate of illicit movement and dumping by transnational corporations and other enterprises from industrialized countries of hazardous and other wastes in developing countries that did not have the national capacity to deal with them in an environmentally sound manner. On the basis of work of the Subcommission, the Commission on Human Rights had adopted a number of resolutions, including the appointment of a Special Rapporteur on this subject.

Another issue was the serious violations of human rights and fundamental freedoms which took place in Genoa. The events there reflected the situation of the contemporary world. The limitations and restrictions which were adopted and applied by the Italian Government were not justified. The authorities abused their power and mistreated hundreds of people. On the situation of human rights in Northern Ireland, there was a serious deterioration and the international community should express concern. Also, the systematic and grave violations of human rights of prisoners, their strikes and deaths in so-called white prisons, constituted inhumane practices. It was a shame for every State in which this treatment of prisoners was taking place.

LOUIS JOINET, Subcommission Expert, said the Subcommission, before the rules were changed, had in the past taken initiatives under this agenda item that at first had been controversial, relating to situations in Togo, Bahrain, Peru, and the Democratic People=s Republic of Korea. In the case of Togo, he had drafted a resolution following the disappearances of some people; a Minister of Togo had phoned him on several occasions, asking him to withdraw the resolution, but finally a dialogue resulted, Togolese officials had visited, a Chairman's statement resulted, and a joint UN-OAU (Organization of African Unity) mission was established to look into the matter, and a report resulted. In the end it had been a constructive dialogue and report. The Subcommission could no longer adopt resolutions on specific country situations -- but should the Subcommission regret having adopted a resolution on the specific situation in Togo?

In the case of Bahrain, a resolution was proposed and withdrawn after constructive negotiations with the Government; the Government stuck to its promise and an agreement was reached to send an observer. Again, it was a positive result. Very important political changes took place, some political prisoners were released -- not all -- and some exiles returned to the country. Did the Subcommission regret drafting a specific resolution on Bahrain four years ago?

In the case of Peru, he had drafted a simple resolution requesting that impunity not be extended to all cases under the laws of that country. First there was a very sharp response from the Government, but then a review of the situation began; a working group went to investigate detention conditions; there was excellent cooperation by the Government. And what happened? Democratic elections followed, there was increasing fight against corruption, the head of the former secret services was arrested and charged, and a truth commission was established to deal with the question of impunity. And Peru had recently rejoined the Inter-American Court of Human Rights.

With the Democratic People=s Republic of Korea, the Subcommission had adopted a resolution, the Government had reacted sharply; but ultimately there was a dialogue, he had met many representatives of the Democratic People=s Republic of Korea, and he recently learned that the Government had sent a report to the High Commissioner for Human Rights. In the period since the Subcommission's drafting of the resolution, the Democratic People=s Republic of Korea had taken some timid positive steps in terms of establishing diplomatic relations with other countries; there had been adherence with an Asian regional organization, and there had been meetings between the two Korean leaders. The expulsion of some refugees from the Democratic People=s Republic of Korea by China back to their country was a cause for concern -- it was necessary to decide if these people were legitimate refugees or not.

Positive news in human rights also came from Italy, following the protests at the G-8 summit, because a debate was under way over how the demonstrations had been dealt with and an inquiry was being undertaken; and from Tunisia, a magistrate and judge had addressed the Superior Court of Magistrates pointing out the lack of independence of that body, and had been suspended from his post, but following an appeal by Mr. Joinet, that suspension had been ended.

He was concerned over the situation of assassinations carried out by Israel against Palestinians, Mr. Joinet said; if a State functioned that way, guilt or innocence of those "eliminated" could not be formally pursued and established. These were not summary executions as the quantitative aspect made them more than that -- they were extrajudicial executions, and amounted to serious violations of human rights.

Right of reply

The representative of the Democratic People's Republic of Korea, speaking in a right of reply, said the delegation wanted to make it clear that the allegations of Mr. Park were unsubstantiated, and the delegation resented the remarks. Many Koreans now lived in northeast China. Most of them hailed from the northern regions, and had relatives there. What was strange was that they were called refugees. China had reaffirmed that there were no refugees between the Democratic People=s Republic of Korea and China. Very few people crossed the border into China illegally. Most of those who did cross returned voluntarily.

Statements on the administration of justice

SARDAR SHAUKAT ALI KASHMIRI, of the European Union of Public Relations, said he was from Pakistan-occupied Jammu and Kashmir, where the rule of law was routinely subverted for the sake of political expediency and where administration of justice was fundamentally marred by the fact that millions of ordinary citizens were deprived of the most basic rights to life with dignity and honour. In Pakistan, in fact, democratically elected Governments were repeatedly overthrown by military dictatorships. Pakistan frequently referred to Indian-occupied Kashmir, but refused to admit that it also had improperly occupied Kashmiri territory. He himself had campaigned for years for the liberation of Kashmir and as a result had suffered torture and loss of liberty.

Justice was being denied to the people of his land and their verdict in elections had been reversed, while many Kashmiri parties had been barred from contesting the July elections organized for the Pakistani assembly. More than 100 people had been arbitrarily detained in Pakistan-occupied Jammu and Kashmir to limit involvement of various political parties in the election. Meanwhile, the militants that Pakistan called "freedom fighters" in Kashmir were in fact killing innocent civilians. What kind of freedom was that? What Kashmir needed was justice.

ANTOINE MADELIN, of the International Federation of Human Rights Leagues (IFDH), said universal competency would make it possible to prosecute criminals wherever their crimes were committed. The worst atrocities ever committed often were not punished. The principle of universal competency was often limited. The International Federation called on the Subcommission to condemn the death penalty throughout the world. Some examples should be highlighted about the misadministration of justice. The implementation of justice in the United States was far from ideal. At an anti-death penalty conference in Strasbourg last year, the death penalty was condemned in every instance in the world. In Mauritania, there was extreme concern about the bad functioning of the justice system. Many arbitrary arrests had been noted. In the Central African Republic, detainees were kept in terrible conditions in the police stations. There had been summary executions in various neighbourhoods there, and the attempted coup there in May had resulted in inhuman circumstances. In Cameroon, the human rights situation was disturbing. There were many summary executions there. And in Viet Nam, justice was severely jeopardized. There were illegal detentions which contradicted with the decisions announced by the authorities.

KAREN PARKER, of International Educational Development, said detention of persons during armed conflict were governed by the Geneva Conventions and their protocols, but as so many Governments chose to term armed conflicts "battles against terrorism", many detainees were held under terrorism provisions; they were not treated as prisoners of war and often did not receive sufficient judicial protections. Such was the case against Abdullah Ocalan in Turkey. Indian authorities had detained many Kashmiris who were routinely tortured and many of whom ended up victims of custodial killings; those seeking Kashmiri independence were regularly referred to as "terrorists" and were treated improperly in judicial terms.

The organization was alarmed by China's treatment of Falun Gong practitioners and was convinced it was a true emergency. Thousands had been detained and several hundred had died while in custody, while numerous cases of torture of Falun Gong followers had been extremely well-documented. Falun Gong was a voluntary organization with no political ramifications. International Educational Development had provided details on a number of Falun Gong cases to the Special Rapporteur on extrajudicial executions. The Subcommission should take up this issue as a matter of highest importance.

K. WADHERA, of the Asian Centre for Organisation Research and Development, said India was a multi-religious, multi-cultural and multi-lingual society, perhaps a unique situation not seen anywhere in the world. After a prolonged colonial rule, it was a great challenge to the forefathers to adopt a Constitution to secure justice and equal rights to everyone. Rightfully, they had given the world's longest, and most comprehensive, written Constitution, incorporating positive aspects of the constitutions of other democratic and liberal countries. After 54 years of independence, where did it stand today? The biggest achievement was that all sane adults had an equal right to choose their representatives who contributed to governance, at local, state and national levels. Everyone had an equal right to vote. It was not being claimed that there were no prejudices or frictions at the social levels and of political nature. There were reports of politically inspired communal clashes, police high-handedness, illegal detentions, and lock-up deaths, not only in areas of conflict such as Jammu and Kashmir, but also in other parts of the country.

However, it was important to note that there were safeguards in the laws, courts, and ministries to prevent and control such unacceptable events. There was not a single case of juvenile capital punishment in India. In fact, there were homes for the juveniles. The National Human Rights Commission was a statutory body which monitored any violation of citizens' rights by the central and state governments, and recommended measures to provide justice to all sections of people. Besides the official bodies, the country had a very free and effective media, whether print or electronic, and a strong non-governmental organization (NGO) movement. The democratic system enabled the opposition parties to question the Government in Parliament and in parliamentary committees on its decision and programmes. The Government was, therefore, answerable to the people and their representatives in Parliament.

HISAE SAITO, of the International Association of Democratic Lawyers, said the Subcommission should pay attention to the issue of war crimes against humanity committed by the Japanese pre-war imperial regime, including the victims of the Public Order Maintenance Law of Japan, and to the plight of Chinese victims of Japanese atrocities during the Second World War, Korean victims, and other Asian victims who were seeking a formal apology and compensation. Under the Public Order Maintenance Law, Japan oppressed those who were against war and criticized Japan's aggression, subjecting them to arrest and imprisonment; lawyers defending those put on trial would be arrested, imprisoned, and deprived of their certification as lawyers. Hundreds of thousands were affected by the law, including nearly 2,000 who were tortured to death or who died in prison. Many women detainees were sexually assaulted to enforce confessions.

The Governments of Germany and Italy had reflected on their wartime aggression and fascist oppression and had provided compensation to the victims as well as to resistance activists. In order to stimulate reflection and self-criticism about the war, it was imperative that the Japanese Government do the same. The Subcommission should urge Japan to honestly fulfil its responsibilities in this matter.

P. LEBLANC, of Franciscans International, said Franciscans International called for an end to the death penalty. A number of its members in the United States had adopted a corporate stance advocating an end of the death penalty. This stance was based on their commitment to proclaiming justice and on their experience in prison chaplaincy work and work with the families and friends of victims. Since 1997, the Commission on Human Rights had adopted resolutions for a moratorium on the death penalty. At present, 109 of the 185 Member States of the United Nations had called for an end to the death penalty or a moratorium on its practice. According to Amnesty International, in the past decade, more than three countries a year on average had abolished the death penalty. However, there had been an increased use of the death penalty in the United States. By the year 2000, 683 human beings had been executed since the death penalty was resumed in 1977.

In calling for the abolition of the death penalty, there was concern about its unjust and unequal application. In countries where the death penalty continued to be carried out, it was more likely to be applied in a racist manner, more likely to be applied to minorities and the underclasses in general. Poor people, disabled people and young people were more often subjected to capital punishment. In this respect, it was deplorable that the death penalty was applied to people suffering from mental retardation. Since 1995, only three countries in the world reported carrying out executions of such people -- Krygyzstan, the United States, and Japan. Independent studies suggested that the death penalty did not lead to a decrease in capital crimes. Research failed to provide scientific proof that executions had greater deterrent effect than life imprisonment, and such proof was unlikely to be forthcoming. The evidence as a whole gave no positive support to a deterrent hypothesis. Respect for all human life and the opposition to violence in society were at the root of the long-standing position against the death penalty. The death penalty was perpetuating a cycle of violence and promoted a sense of vengeance in culture. To continue to enact the death penalty was to teach that violence and killing were acceptable ways of dealing with violence and killing.

KASHINATH PANDITA, of Interfaith International, said the politicizing of religion not only debilitated its capacity but also created tensions among religious majorities and minorities who otherwise might live together in peace and amity. In a theocratic State where the official tendency was to enforce religious law, religious minorities often bore the brunt of an exclusivist legal system. In some former colonies of South Asia, apart from a broad penal code with modern orientation dating from the colonial era, there often were religious courts which applied contrary provisions resulting in the two systems coming into embarrassing conflict.

The Subcommission also should advocate the adoption of extradition treaties agreed to by all United Nations Member States, as that would reduce the frequency of crimes against humanity by making it harder for perpetrators to escape justice by fleeing to countries from which they could not be extradited. This difficulty would arise, for example, when Osama bin Laden's case was taken up with the country where he was hiding at the moment. The current extradition law regime was tantamount to shielding the perpetrators of international crime.

ELSA LEPENNEC, of the World Organization against Torture, said racism and racial discrimination affected already vulnerable populations, including refugees and asylum-seekers. Under the recognized guarantees by international instruments, foreigners should be able to be informed of their rights by a person of their choice, and should be able to see a lawyer or a doctor of their choice. Further, they should be informed of their rights in a language they understood. There was a situation of minors who were seeking asylum in France -- they were not admitted on the territory. They were systematically kept in waiting zones. This discriminatory practice should be stopped. It violated the Convention on the Rights of the Child. The Subcommission was encouraged to take on board the minors who were not admitted to certain territories. They were particularly vulnerable. Asylum-seekers should be maintained in special centres, not detention centres that were called for under criminal law. The fight against racism should stretch over national borders. All States should remedy the increasing institutionalization of racism in prisons and places of detention.

ASHOK BHAN, of the Indian Council of Education, said administration of justice required a peaceful civil society, democracy and the rule of law, but the hapless people of the Indian state of Jammu and Kashmir were being ravaged by terrorism orchestrated and supported by Pakistan. Four-hundred thousand members of religious minorities had been forced to flee their homes and live in camps because of this violence. Thousands of Muslims and Sikhs also had been forced to leave Kashmir because of the violence and intimidation of the terrorists. The international community must notice that Pakistan's military leader Gen. Musharraf was a hero for the jihad groups which carried out this violence.

Jihad had become an industry in Pakistan; the only employment opportunity left there was jihad, and Pakistani youth were forced to join terrorist outfits to help buy food and shelter for their families. Recent elections in Pakistan-occupied Kashmir had been improper because those who wanted to contest the election had to sign a clause saying they did not question accession of Jammu and Kashmir to Pakistan. No self-respecting Kashmiri would sign such a paper. Kashmiris in both the Indian side and in Pakistan-occupied Jammu and Kashmir needed justice.

CARRIE DANN, of the Indian Law Resource Centre, said several years ago the United States Supreme Court decided that the United States' Government was the trustee of the Western Shoshone peoples, and that it accepted payment for its land -- lands that were never agreed to be sold, and lands that they had occupied since time immemorial. These lands were their life and they continued to live on them and maintain their cultural and economic survival through them. This made no sense. Trustee should protect interests, not abuse the position to steal the very essence of their identity. The United States did not even have a legal justification for taking the land. Although the Supreme Court said the Western Shoshones had been gradually encroached because their land was settled by whites, settlers and others, this had no basis in fact. They had never left the land. In many areas of the land, there were only Western Shoshones seen.

There had been requests of the Government to see the land transfer. Was there a document that defined gradual encroachment? If there was one, let the Government produce it. Was there a document that defined gradual encroachment? Could the Government produce it? Instead of these documents, the Government was introducing a document called the Western Shoshone Distribution Bill. It automatically distributed the monies supposedly accepted by the Secretary of Interior claiming to be the trustee. The Western Shoshone, as traditional people, would never accept any money for Mother Earth. Money would not be accepted for religious beliefs.

M. DAJKIA, of the World Federation of Democratic Youth, said Punjabi dominated civil and military regimes in Pakistan had grossly violated the rights of the Mohajirs in urban Sindh for years, including through extra-judicial killings, broad-day murders, incarceration, kidnapping and forced disappearances. The Mohajirs, who took credit for the creation of Pakistan in 1947, were now suspected of not being loyal to Pakistan. Some 23 million Mohajirs in urban Sindh were denied adequate representation in all of the State organs of Pakistan; in civil administration, their representation was only nominal.

On 21 July, Mohammad Naeem, member of the Muttahida Organizing Committee (MQC) in Hyderabad, was arrested, and on 31 July he attempted suicide as a result of severe torture. Dozens of MQC workers detained in Sindh had been subjected to severe torture. Another member of the MQC organizing Committee in Hyderabad, Firdaus Khanzadah, had disappeared and his whereabouts were still unknown. The judiciary in Pakistan was manipulated by the military regime and the scandal of partisan judgements by some Pakistani judges needed no further elucidation. The Subcommission should urge Pakistan to protect and promote human rights for all its citizens without bias.

ANNA BIONDI, of the International Confederation of Free Trade Unions, said in Belarus, the President had used every possible method to establish total State control over trade unions. He had issued a series of decrees, making it virtually impossible for new independent trade unions to develop or for existing organizations to carry out legitimate activities free of governmental interference. Last month in Swaziland, the King had issued a decree which called for a further restriction of the exercise of fundamental rights, in addition to a 1973 decree which not only suspended the Constitution and denied many democratic rights, but also had been used to repress legitimate trade union activities. In the Republic of Korea, there were massive violations of trade union rights registered. There were the issuing of arrest warrants against entire union executive bodies, hostile statements by senior justice officials, and long detentions of unionists without trial. The systematic repression of the Korean trade union movement through mass arrests, unlawful detentions and violent police attacks required immediate attention at the international level. Unfortunately, many other countries could be added to this list. The struggle to safeguard trade union rights in these countries as well as in all the others affected by anti-union repression was a call against the fundamental breach of human and trade union rights everywhere.

E. BEN-MARZOUK, of Young Doctors Without Frontiers -- Tunisia, said good management of public affairs and a proper environment for human rights were essential for human development. Reduction of poverty and liberalization of trade were vital for this. But more had to be done to protect the rights of women, children, and indigenous peoples, especially given recent increases in racism and xenophobia. Populations at large needed better knowledge of international law; teaching of international law should be promoted in universities and schools of higher education; establishment of a state of law was vital for good governance and maintenance of human rights. Such things were not be possible without widespread understanding of international law and international human rights law.

In emerging countries, efforts were being made to develop through respect for human rights. It was a paradox that some people committed acts that ignored the law supposedly to advance transparency, democracy and freedom. The law must be above all, and must be applied independently and impartially by a well-trained and established judiciary providing full safeguards for those accused. There should be a consensus dialogue in such countries, but without suppressing the right to be different.

FRANCOISE JANE HAMPSON, Subcommission Expert, said certain members of the Subcommission had mentioned situations where impunity was a problem. In United Nations Peacekeeping Operations, there was a problem too. The operations in question were undertaken to help build institutions based on accountability and the rule of law. There were United Nations Police Officers serving in Bosnia, Kosovo, East Timor and elsewhere. But when these officers committed crimes, they were not punished. In Bosnia, they had diplomatic immunity. The highest punishment the United Nations could impose was repatriation. And the home country was not obligated to investigate and report back to the United Nations. There were reports that an officer had purchased a woman from a brothel from 6,000 Deutch Marks -- something officials called a love story gone awry. In Kosovo, an officer had relations with a 14-year-old mentally-handicapped girl. Charges were dropped do to a lack of forensic evidence. The officer was repatriated and currently there were no criminal charges against him although the whole prosecutor=s file had been sent to his country's permanent mission in New York. Currently, three officers were under investigation for trafficking women from Serbia into Kosovo.

Further, military forces serving in Kosovo were also committing numerous violations of human rights law, and victims had little or no access to an effective remedy. Some Kosovo Force (KFOR) contingents believed that under Security Council Resolution 1244, they could expropriate property without paying for it. Some contingents had built bases or roads on land owned by private individuals. KFOR spent nearly one year developing a claims commission to deal with these types of complaints, but it was still not functioning.

It was suggested that where international civil servants had evidence of such conduct, they should be under an obligation to send detailed reports to the Special Rapporteur for the former Yugoslavia, and any relevant thematic rapporteurs. In a climate in which all legal responsibility was denied within Kosovo, it could not be left to individual victims and local lawyers to submit reports. After all, the KFOR and the officers were there -- under a United Nations mandate -- to supposedly teach them about human rights laws. At the very least, the Special Rapporteur for the former Yugoslavia, relevant thematic rapporteurs and the Human Rights Committee, when examining the reports of States whose forces or whose police take part in peacekeeping operations, should address this problem as a matter or urgency. That, however, was not enough. The Subcommission needed to address the effective accountability of peacekeeping forces and members of the United Nations police force who were acting in the name of the international community. If the Subcommission agreed, it was hoped that this issue was one the working group could begin to examine.

MR. JOINET said that on some points he was convinced by what Mrs. Hampson had said; among other things he agreed that the armed forces must take responsibility for what happened on the territories they occupied. But on the other hand he thought her statement was a little facile. He had been in the KFOR region on two occasions, and also had worked with United Nations forces in Timor. He himself had been directly confronted with a civil law violation that had turned rather violent, but the worst had been avoided.

Peacekeeping troops were working in difficult circumstances, Mr. Joinet said; he agreed that mere disciplinary sanctions appeared too light a punishment in cases of serious violations. He thought these happened, but not to a great extent. Meanwhile there was a judicial void when peacekeeping operations took effect; there was bound to be a transitional period; it was not possible to bring people before courts because courts did not exist. People had to be arrested because not to arrest them would be a matter of impunity and unfair to the victims. But setting up sufficiently operating judiciaries did not occur overnight. It was true that arbitrary detentions were committed by KFOR, but what the United Nations was trying to do was set up a judicial system after the preceding system had collapsed. It was hard to find impartial judges in the region -- even if a judge in fact was impartial, if he was from one group or another he would be seen by opposing groups as not being impartial. It was necessary to think about standards, about legal concepts, that took into account the transitional nature of the period being talked about. Responsibility had to be assumed on the basis of some standards or other to try to ensure that actions were not taken arbitrarily.

ASBJORN EIDE, Subcommission Expert, said this was an extremely important issue and it was unchartered. There was a need for rules and regulations that were applicable. It was good to see that this was issue taken up.

EL-HADJI GUISSE, Subcommission Expert, said these were technical matters, and it was necessary to involve the members of the United Nations peacekeeping forces with violations committed in territories under their control. When the United Nations sent forces to a country, most of the time the justice system had been destroyed. The United Nations, meanwhile, had not envisaged setting up anything to replace this system. So what you were faced with was a denial of justice. Victims could appeal for justice, but nothing was provided. It was important to see if the Subcommission could set up standards for the United Nations so that such denials of justice could be avoided. When an United Nations peacekeeping operation came to an end, something had to be set up to make it possible to close the gap, or lack of justice would become permanent.



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