27 October 2005
In War on Terror, many Countries Violating Human Rights Standards, Third Committee Told
Committee Hears Reports Concerning Torture, Human Rights Defenders, Countering Terrorism, Freedom of Religion, Judicial Independence, Violence against Women
NEW YORK, 26 October (UN Headquarters) -- The use of torture violated international human rights, refugee and humanitarian law, but in the war on terror many countries were violating such international standards, and that practice must end, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, told the Third Committee (Social, Humanitarian and Cultural), today as it continued its general discussion of human rights questions.
In fighting terrorism, several Governments had transferred or proposed to return alleged terrorist suspects to countries where they could be at risk for torture or ill-treatment, on the grounds that such persons would be protected through diplomatic assurances and regular monitoring to prevent ill-treatment, Manfred Nowak, the Special Rapporteur, said. However, such diplomatic assurances were unreliable and ineffective in protecting against torture and ill-treatment. They were usually sought from States where torture was systematically practiced, but post-return monitoring had proven to be no guarantee of protection. Diplomatic agreements were not legally binding and no recourse existed for breaches.
Rather than a genuine system of monitoring detention areas and stopping the practice of torture, diplomatic assurances basically attempted to provide special bilateral protection and monitoring for a few privileged detainees while ignoring the systematic torture of other detainees, he said, adding that the practice undermined the International Covenant on Civil and Political Rights and the Convention against Torture. Moreover, Security Council resolution 1456 of 2003 stressed that Governments must ensure that anti-terrorism measures complied with international law.
Turning to the issue of violence against women, Yakin Ertürk, Special Rapporteur on violence against women, its causes and consequences, said her annual report to the Commission on Human Rights focused on the link between HIV/AIDS and violence against women. Women's vulnerability to that pandemic was largely rooted in pervasive gender inequality and discrimination, which often manifested in multiple forms of violence.
In her report next year, she said she would aim to lay out the most common use of the due diligence standard, which emphasized response to violence against women in the context of the criminal justice system, access to services and legislative reform. However, the violence-against-women agenda was not only about responding effectively to violence when it occurred but to actually prevent violence against women from occurring at all. She would also consider how the due diligence standard could best be applied at different levels of intervention, including at the individual, community, State and transnational levels.
Regarding the issue of human rights defenders, Hina Jilani, Special Representative of the Secretary-General on Human Rights Defenders, said that to be effective, international peace and security strategies must give particular attention to protecting human rights defenders. Such defenders helped achieve the objectives of resolutions of the Security Council and the Commission on Human Rights, provided early warning of emerging problems, including on gross human rights violations, and could help prevent problems from deteriorating further. They also provided accurate information on the situation on the ground by bringing to light deviations from international human rights and humanitarian law while conflict was ongoing, and helped protect civilians and provide relief. However, defenders had been the victims of killings, disappearances, torture, arbitrary arrest and detention, harassment and intimidation, and had been denied access to relevant places, people and information. Protecting human rights defenders and their work was still not adequately emphasized within the United Nations system.
Asma Jahangir, Special Rapporteur on Freedom of Religion or Belief; Martin Scheinin, Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism; and Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, also made statements. Committee members asked questions and heard replies from the Special Rapporteurs and Special Representatives of the Secretary-General.
The Committee will meet again at 10 a.m., on Thursday, 26 October, to hear presentations from Akich Okola, Independent Expert on the situation of human rights in Burundi; Sima Samar, Special Rapporteur on the situation of human rights in the Sudan; and Jean Ziegler, Special Rapporteur on the right to food.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its general discussion of human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms; human rights situations and reports of special rapporteurs and representatives; and the report of the United Nations High Commissioner for Human Rights.
Human Rights Defenders
HINA JILANI, Special Representative of the Secretary-General on Human Rights Defenders, said her report to the General Assembly this year focused on the fundamental role of human rights defenders in the preservation and restoration of peace and security. Building on the essential connection in the Secretary-General's report, In larger freedom (document A/59/2005), her report emphasized that, to be effective, international peace and security strategies must give particular attention to protecting the role and situation of human rights defenders and to harnessing their work in all initiatives taken in that context. The report also described how the work of human rights defenders contributed to achieving the objectives of resolutions adopted by the Security Council and the Commission to address peace, security and human rights concerns.
Furthermore, the report provided multiple examples of how the work of human rights defenders contributed to achieving the objectives of resolutions adopted by the Security Council and the Commission to address or respond to those concerns. Through their work, defenders provided early warning of emerging problems, including on gross human rights violations, and they could help to prevent problems from deteriorating further, she said. Human rights defenders also played a crucial role in providing accurate information on the situation on the ground by bringing to light deviations from international human rights and international humanitarian law, by parties to a conflict while conflict was ongoing, and their work contributed directly to protecting the lives of civilians and providing relief. They also often conducted difficult and dangerous missions into barely accessible regions of a country, interviewed victims and witnesses of human rights abuses, conducted investigations, and corroborated information in order to be able to document and report on their findings to the international community.
Successful peacebuilding required that human rights concerns that were among the initial causes of the conflict be addressed, she continued. In that context, human rights defenders had assumed roles commensurate with the post-conflict and peacebuilding stage. The work they performed during periods of transition was of utmost importance to ensuring sustainable peace. Furthermore, despite their fundamental role, and sometimes because of it, human rights defenders were the victims of serious violations targeting them as individuals or targeting their capacity to work. Defenders working to address peace and security concerns and those endeavouring to preserve human rights standards in peace initiatives or security measures, had been the victims of killings, disappearances, torture, arbitrary arrest and detention, harassment and intimidation. They had also been prevented from gaining access to places, people and information relevant to human rights situations.
In its conclusions, her report noted that in spite of the essential role of human rights defenders in the achievement by the United Nations of its core goals, the focus on protecting human rights defenders and their work was still not adequately emphasized within the United Nations system, she said. As a result, efforts by States and the United Nations bodies to protect peace and security had a diminished certainty of impact on the prevailing conditions, increasing the risk that conflicts could emerge from those conditions or continue for longer periods. Her report included recommendations to States individually and collectively as members of the Security Council and the Commission, as well as to the United Nations Secretariat and the specialized agencies on how to further enhance the ability of human rights defenders to fulfil their important role.
In the discussion following Ms. JILANI's statement, the representative of Brazil asked how the role of civil society could be expanded to help her work, and what she thought were the main problems facing civil society in helping her do her job.
Ms. JILANI emphasized that all of her reports, including her present one, gave great significance to the role of civil society organizations, who worked very closely with her mandate. Such organizations played an important role in the transferring of information on which she could act, and on the verification of information, which gave her opportunities to find multiple sources.
The main problem that civil society organizations were currently experiencing -- which weakened their work and the role they could play -- was the lack of access to information, she continued. Human rights defenders could only function effectively if they had the appropriate level of information and access to places. Another problem concerned the cooperation of Governments and the construction of communication channels with civil society. In some instances, that did take place, but there had been complaints that Governments seldom responded to concerns expressed by civil society or to the recommendations made by them regarding to policies, laws and practices.
Answering a question from Canada's representative on what, in her view, contributed to the progress achieved and what contributed to the lack of coordination between human rights defenders and the United Nations system, Ms. JILANI said that several initiatives had come about in concrete terms, but more than those initiatives themselves, the whole question of human rights defenders had become more visible as an issue and as a concern. There were more voices being raised in support of addressing all the defenders' problems when they understood activities to promote and protect human rights.
Expressing appreciation for the European Union guidelines on human rights defenders that had been adopted, Ms. JILANI expressed hope that such guidelines could be used for constructing additional ones, and that more measures would be taken to relieve the situation of human rights defenders wherever they were under strain. Furthermore, she said she was still concerned that at the national level, sufficient measures were not being taken to ensure that human rights defenders had all of the necessary tools.
In response to questions from the representative of the United Kingdom on what could be done to improve the independent monitoring of new legislation and what measures States could adopt at a national level to enhance that capacity, Ms. JILANI said the issue was very significant, especially regarding human rights defenders. It affected and obstructed their access, particularly in the field of fair trials, due process, and in efforts to seek better application of human rights and humanitarian laws. Any measures had to be evaluated and assessed in terms of efficacy and effectiveness, and regarding their conformity to the rule of law and human rights standards.
When asked by the same representative how the international community could contribute to ending impunity for human rights defenders, Ms. JILANI said that the issue had been an ongoing concern of United Nations bodies and human rights experts. Impunity was one of the major problems that affected human rights situations in a very broad context, and it created a situation in which human rights defenders found it very difficult to work. The lack of accountability for human rights violations placed defenders at greater risk and harm. More vigilance by the international community and less tolerance for impunity was absolutely essential so that Governments were reminded of the erosion that occurred in their own systems because of the prevalence of impunity. Furthermore, the credibility of Governments was at stake when impunity prevailed, apart from the harm done to the human rights of their populations. Stressing that the need for Governments to account for impunity was absolutely essential, she added that it was only through the collective efforts of the international community and the persistent monitoring of situations where impunity was a problem could there be an improvement.
In response to a comment from Switzerland's representative on cases in which the interaction between human rights defenders and United Nations country teams or missions had not proven to be optimal because the defenders had failed to obtain a response, Ms. JILANI said it was very important that the defenders not only had access to United Nations field offices, but also that there were ways, means and methodologies that could ensure that a response to their work was given.
Asked by the representative of Switzerland whether a clearer policy regarding the protection of human rights defenders should be developed, particularly for United Nations country teams and missions, Ms. JILANI said that a lot of work had been done, but a lot also remained to be done. She had made several recommendations concerning measures and coordination strategies that could be adopted by the United Nations system, and it was absolutely essential that action be taken now.
Expressing deep concern that Ms. JILANI's report this year again confirmed a continuing high level of violations committed against defenders around the world, the representative of Norway asked to hear examples of how the Office of the High Commissioner could be strengthened through its own activities, as well as through the broader United Nations system to promote and protect the work of human rights defenders.
Ms. JILANI said that such a vision of strengthening the Office had been expressed by the High Commissioner for Human Rights, Louise Arbour, in her action plan. It was absolutely imperative that the field offices that were established had a close working relationship with the human rights communities in the respective countries. If there were possibilities to engage Governments in a dialogue regarding their cooperation, such initiatives could be undertaken by the Office of the High Commissioner. Many of the problems undertaken by the Office would have the potential of ensuring the participation of civil society, she added.
Torture and other Cruel, Degrading Treatment
MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said he was particularly concerned with the situation regarding corporal punishment -- notably allegations of amputation, stoning, flogging and beating -- which was often deemed lawful within the context of domestic law, including religious law. United Nations human rights treaty bodies, particularly the Human Rights Committee, the Committee against Torture, and the Committee on the Rights of the Child, had called for abolishing corporal punishment. Regional human rights mechanisms, particularly the European Court of Human Rights and the Inter-American Court, had held in leading cases that corporal punishment was incompatible with the prohibition of torture.
International humanitarian law, including the Geneva Conventions, its protocols and other international standards, such as the Standard Minimum Rules for the Treatment of Prisoners, were equally unambiguous, he continued. Since international human rights law, in particular Article 7 of the Covenant on Civil and Political Rights, prohibited corporal punishment, Governments could no longer invoke the so-called "lawful sanctions" clause in Article 1 of the Convention against Torture (CAT) to justify corporal punishment. He called upon all States to abolish corporal punishment without delay.
He expressed concern over the erosion of the absolute prohibition of torture in the context of counter-terrorism, particularly the increase in practices that undermined non-refoulement. In fighting terrorism, several Governments had transferred or proposed to return alleged terrorist suspects to countries where they could be at risk for torture or ill-treatment, on the grounds that such persons would be safeguarded through diplomatic assurances and regular monitoring to prevent torture and ill-treatment. Security Council resolution 1456 of 2003 stressed that Governments must ensure that anti-terrorism measures complied with international law, particularly international human rights, refugees and humanitarian law.
In the context of counter-terrorism, he said he had found that diplomatic assurances were unreliable and ineffective in protecting against torture and ill-treatment. Diplomatic assurances were usually sought from States where torture was systematically practiced, but post-return monitoring had proven to be no guarantee of protection. Diplomatic agreements were not legally binding and no recourse existed for breaches. Rather than a genuine system of monitoring detention areas and stopping the practice of torture, diplomatic assurances basically attempted to provide special bilateral protection and monitoring for a few privileged detainees while ignoring the systematic torture of other detainees. That undermined the International Covenant on Civil and Political Rights and the Convention against Torture. He called on all countries to refrain from requesting diplomatic assurances related to the prohibition of torture and to scrupulously observe non-refoulement.
He then assured the Committee that his visits to countries were intended to see first-hand ill-treatment and recommend ways for improvement. A country's invitation, however, was not sufficient and his acceptance of it was contingent upon basic preconditions for freedom of enquiry, namely, the right to conduct unannounced visits to detention centres, speak to detainees in private and receive assurances from authorities that such detainees would not be subjected to reprisals. Such conditions were necessary to ensure an honest, credible and objective assessment of the situation. Any suggestion that such conditions be subjected to qualification or negotiation was an attempt to compromise his findings. He then discussed his recent visits to Georgia, Mongolia and Nepal and said he would visit China in November and had requested that the United States permit a visit to Guantanamo Bay.
During the ensuing discussion period, Mr. NOWAK fielded several questions from delegates regarding international legislation on torture and his findings of torture and ill-treatment in specific countries.
As to the representative of Yemen's question on why Mr. Nowak's report stated that Yemen was practicing torture, he said his conclusion was that domestic law, based on Sharia law should not allow for corporal punishment. Although the United Nations 1984 Convention Against Torture had a sanctions clause, for a long time its interpretation had not been clear. United Nations monitoring bodies had since developed jurisprudence and arrived at the conclusion that corporal punishment violated the prohibition of torture. One could not assume that the Convention would actually have lowered the standards achieved by 1964 International Covenant on Civil and Political Rights, which came into force in 1974. Under Article 7 of the Convenant, it was no longer acceptable to use that sanctions clause as an argument to justify torture. He then reiterated his call to States to bring domestic laws in line with international law.
Regarding the representative of China's inquiry over the use of interrogation by authorities to protect civilians when their lives were in danger, he said the fight against terrorism was an important function of Governments. States were obligated to protect their citizens, but the Security Council and other bodies had repeatedly stressed that counter-terrorism strategies must be carried out within the framework of international law. Such law was flexible in that rights were not absolute. However, the prohibition of torture and ill-treatment was in fact among the few rights that were absolute. Interrogation measures must honour that.
Responding to the representative of Nepal's assertion that his country was preparing to criminalize torture in its legal system, he said he understood the difficult situation in Nepal to fight Maoist insurgents and to stop impunity. That was the main reason for torture in Nepal. He said he understood that Nepalese authorities were preparing to criminalize torture and adopt appropriate penalties since at present it had fairly lenient disciplinary punishment for offenders.
Regarding the inquiry of the representative of the United Kingdom, speaking on behalf of European Union, on responses from countries regarding access and follow-up to his visits, he said Government cooperation was not enough. Governments must carry out investigations. Of 1,000 urgent action claims sent to Governments, more than 60 per cent of them had not responded. He called on Governments for greater cooperation.
Asked about deficits in the justice system in relation to torture, he said that in the context of counter-terrorism, excessive use of pre-trial detention without sufficient monitoring was the main reason why torture existed. There were really no effective measures to investigate allegations of torture in line with the Convention. He said he found a culture of impunity and of torture not being taken for what it was. That was in fact one of the most serious human rights allegations in existence, and there was a real need for laws, trained judges to take up cases and for violators to be subject to justice and given proper penalties.
Regarding questions from representatives of the United Kingdom and Brazil on the use of corporal punishment on children and in schools, he said Governments must do due diligence to protect children. Also, private schools were obliged to stop corporal punishment. The United Nations Committee on the Rights of the Child was very concerned about this, and many countries had adopted laws to outlaw corporal punishment against children.
Replying to the representative of Cuba's question on why his report did not refer to many allegations about Governments allegedly torturing prisoners within the context of the so-called war against terror, he said he had received many such allegations of ill-treatment of people in detention with respect to counter-terrorism strategies, and his current report referred to such strategies within the realm of terrorism only. However, he was very much concerned about torture of detainees, and he had requested a joint visit to Guantanamo Bay and other places under United States authority, as well as to other countries suspected and engaging in torture and ill-treatment in places of detention.
Regarding the representative of Venezuela's concern that paragraph 4 of his report states that Venezuela had not provided him with specific information during its recent visit when it had in fact had done so, he said he was referring to the fact to Venezuela, to his knowledge, had never provided follow-up information since visits of his predecessor. While Venezuela had in fact responded to his urgent action allegations, it was also his procedure to ask Governments to provide follow-up on how they had implemented specific recommendations. He would check to see whether in fact he had received that follow-up and if so would clarify that in his next report.
Responding to the representative of Georgia's concern over torture occurring in breakaway regions, he said he would refer to the situation in his 2006 report, particularly regarding the region of Abkhazia where the death penalty existed.
He then acknowledged a comment by the representative of Iraq that Iraq had abolished all decrees under the previous regime that permitted degrading treatment of civilians and torture, and set up a Minister of Human Rights and a National Committee on Human Rights to work closely with Iraqi Parliament.
Regarding the inquiry of the representative of Norway on the criteria used to assess substantial grounds for fear of torture in the context of non-refoulement and diplomatic assurances, he said that under Article 3 of the Convention Against Torture, competent authorities must take into account all relevant situations of flagrant violations of human rights. They must first assess whether widespread or systematic human rights violations existed and then decide whether persons being deported were being tortured or were at high risk of being tortured.
In reply to the representative of the United States' question on the key issues of his visit to China, he said there would be many issues in the context of counter-terrorism, as well as judicial and legal reform, but they were still being discussed, and he would duly report on those consultations and findings at a later date.
Regarding the representative of Bolivia's request for clarification of the nature of his future visit to that country and whether it was linked to a special allegation of human rights violations, he said his predecessor already had a long-standing invitation to visit Bolivia and he had postponed the mission since the situation there seemed to have changed. He offered to discuss on a bilateral basis cooperation to prevent torture in the future.
Responding to the representative of Pakistan's question on why his reports were made public without giving relevant authorities time to react to his finding and recommendations, he assured the delegate that he would attempt to do nothing to politicize human rights. His standard procedure for visits was very clear, and he had used such rules in the case of Pakistan. That is, he would only visit a country if he received official Government information. At the end of each visit, he debriefed Governments on his preliminary conclusions, held a press conference to announce those findings, drafted a report and sent it to authorities to comment on within four to six weeks. He then included those comments in his report.
Replying to the representative of Libya's assertion that the practice of whipping was approved as a form of punishment under Sharia law and the delegate's request that the Special Rapporteur take cultural differences into account when assessing whether countries had used torture or ill-treatment, he said he had always taken such differences into account but that universal minimum standards should not be undermined by cultural diversity.
Regarding the representative of Mexico's comment that his country, in the context of the optional protocol, was interested in working with the Special Rapporteur to integrate a national independent mechanism to supervise detention centres, he said it was useful to visit countries that had ratified or were in the process of ratifying the optional protocol to see how they could best monitor detention centres.
In response to the representative of Mongolia's assertion that his country had implemented the Special Rapporteur's recommendations and had reviewed and harmonized laws in line with international standards and taken other steps to improve conditions for prisoners, including setting up a task force, he said he had received information in that regard and would duly reflect it in his report.
Concerning the United States' inquiry about the nature of the Special Rapporteur's visit to China, the representative of China said his Government was still discussing that with the Special Rapporteur and that the visit would involve exploring ways to safeguard human rights while countering terrorism, among other issues. He said China was willing to have in-depth bilateral discussions with United States after the Special Rapporteur had visited.
Human Rights and Terrorism
MARTIN SCHEININ, Special Rapporteur on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism, said the long and ambitious title of his mandate called for a degree of humility. He was deeply conscious of the destructive effect of terrorism on the enjoyment of human rights in various parts of the world. Numerous genuine challenges faced by Governments in their continuous efforts to conduct an effective fight against terrorism, while at the same time complying with international law including human rights law, must not be ignored by anybody, and in particular not by someone who had been entrusted with the mandate of promoting respect for human rights in the fight against terrorism.
Regarding his approach in relation to Governments and their counter-terrorism measures, he said his mandate was about supporting Governments and other actors in protecting and promoting human rights and fundamental freedoms, while at the same time efficiently countering terrorism. The Commission on Human Rights resolution establishing his mandate, as well as numerous other resolutions by the General Assembly or the Security Council, had emphasized the imperative of ensuring that any measures taken to combat terrorism complied with international law, particularly human rights, refugee and humanitarian law. There could not be a greater victory for terrorists than to provoke Governments to engage in actions and methods that departed from their obligation to respect human rights and fundamental freedoms. The acts, methods and practices of terrorism aimed at the destruction of human rights. It was a part of his mandate to remind Governments that their fight against terrorism should never play into the hands of terrorists themselves.
Furthermore, his job was to follow, in a spirit of loyalty, all actions by other actors that were geared towards promoting a human rights conforming fight against terrorism, to engage in consultation and cooperation with the respective procedures, and to target his own interventions primarily into areas where gaps could be identified. He also emphasized that despite its complementary nature, his mandate was not a mere substitute for other procedures when they proved insufficient, and that was due to its comprehensive nature. In addition, his mandate was also proactive in nature, and he hoped to be engaged in respect of counter-terrorism measures under preparation or review on the national level, in order to assist in designing tools that were both effective in the fight against terrorism and, at the same time, in full conformity with human rights.
Much of the exercise of the mandate of any Special Rapporteur of the Commission on Human Rights consisted of working with Governments, he continued. Some of the ongoing exchanges with Governments would, in due course and with the consent of the Government concerned, lead to country visits by the Special Rapporteur. Although not even the first of his country visits had been scheduled so far, preparations were under way for either full-fledged visits or preparatory on-site consultations with a number of Governments. Although his emphasis during the first months of operation had been on systemic, or legislative matters, he intended to also raise with Governments concrete instances of human rights violations resulting from counter-terrorism measures, he added.
In the discussion that followed, the representative of the United Kingdom asked Mr. SCHEININ to elaborate on the best practices he was focusing on and on how Member States could assist him in the task. He said that the question of best practices was a vast area and, ultimately, one could think of the elaboration of some sort of model laws concerning concrete measures against terrorism. One form of best practices related to the definition of terrorism and its compliance with human rights requirements, while another might relate to a State restricting access of an alleged terrorist to a lawyer of his or her choice. A third area of best practices related to the current trend where several Governments were criminalizing more indirect forms of expression that might potentially have an effect on terrorist acts.
In response to a question by the same representative on his relationship with the Counter-Terrorism Committee of the Security Council, Mr. SCHEININ informed delegates that the first meeting between the two parties had been held earlier this week. Welcoming the willingness of the Counter-Terrorism Committee to engage in an open and constructive dialogue with him, he said specific forms of cooperation had been discussed during the meeting, but that the plans were still under consideration. He also emphasized that the role of the Counter-Terrorism Committee itself was undergoing a transformation.
Responding to another question by the United Kingdom's representative on whether he had considered any concrete joint activities with any other Special Rapporteurs, Mr. SCHEININ said such activity had mostly taken place in the form of consultations. Letters had been sent to specific Governments, and cooperation had already started, he added.
In reply to a question from Jordan's representative on the kind of legal protection in the context of pre-trial protection that alleged terrorists had, Mr. SCHEININ emphasized that he had served as a member of the Human Rights Committee for eight years, and that there was indeed a need for safeguards in any form of detention, including that related to armed conflict.
Asked by Jordan's representative if he was planning to address counter-terrorism laws that could be discriminatory on the basis of nationality or race and whether they constituted violations of human rights, he said that protecting human rights in the fight against terrorism was not primarily about protecting the rights of terrorists or suspected terrorists, but primarily about protecting the life of innocent bystanders. The question was pertinent and would require his attention, he added.
Responding to a comment by the representative of Pakistan on the importance of addressing the root causes of terrorism and the responsibilities and legal obligation in terms of cooperation on Security Council resolutions on counter-terrorism, Mr. SCHEININ said the subject of Security Council resolutions and their relationship with human rights was indeed very sensitive. Much of those concerns should be alleviated through Security Council resolutions 1456 and 1624, which addressed the questions of human rights conformity and counter-terrorism measures. He emphasized that the United Nations Charter itself was based on respect for human rights, and hence all Security Council measures must conform to that Charter.
Lastly, in response to a question by Switzerland's representative on how he intended to assess the human rights impact of counter-terrorism measures in the context of humanitarian law and refugee law, Mr. SCHEININ said there was a growing understanding that the two laws should not be addressed as one, and it was necessary to make sure that both bodies of law remained applicable. The rules of humanitarian law on many occasions provided more concrete guidance, but the opposite situation also existed, so both should be applied in a harmonizing manner.
Freedom of Religion or Belief
At the outset of today's afternoon meeting, ASMA JAHANGIR, Special Rapporteur on Freedom of Religion or Belief, said the activities she had carried out since her appointment in July of last year had been rather intense. She had visited three very different countries -- Nigeria, Sri Lanka and France -- and had also held consultations with several non-governmental organizations and experts in the field of freedom of religion or belief. She had also submitted two interim reports to the General Assembly and two reports of activities to the Commission on Human Rights.
Regarding the three country visits, she noted that the basic principles related to the right to freedom of religion or belief were generally respected by the Governments concerned. Nevertheless, a number of situations, including for reasons related to religious intolerance, raised some concerns with respect to those rights. Some key areas of controversy were the limits placed on the right to propagate one's religion for the purposes of conversion, or the freedom to wear religious symbols in public schools supported by the State.
In general, she said she had noticed that the religious dimension was at the heart of many situations that raised human rights concerns. It was often at the origin of many potential or actual conflicts. Religious issues might therefore constitute appropriate early warning indicators, and it was thus necessary that human rights mechanisms took into account more systematically the religious aspects in analyzing situations that were presented to them. Moreover, while the situation of religious communities had a prominent place in the activities of the mandate, the central focus must be on protecting individual rights to freedom of religion or belief. For that reason, she had given a particular emphasis on the protection aspect of the mandate and on ways to streamline it with other special procedures of the Commission on Human Rights.
She said that one issue of concern regarding the mandate related to the right to adopt a religion of one's choice, or to change or maintain a religion, which should not be limited in any way by a State, while another related to the right of freedom of religion or belief of persons in detention. The mandate, however, continued to receive numerous reports of situations related to those questions.
The programme of her activities for the next year was currently not organized in terms of country visits, she continued. In that regard, she drew the attention of all Governments to the crucial aspect of country visits for special procedures, and to the importance of the cooperation that was expected from Governments in that respect. She was especially concerned that the number of countries that did not want to extend an invitation to visit was increasing, and that such refusals more often emanated from countries for which she had received substantial allegations of situations of violations of the right to freedom of religion or belief. That situation might result in the establishment of a human rights picture that did not correspond to the reality, and she was worried that the pattern might directly affect the system of special procedures as a whole.
She therefore supported the creation of a mechanism that would appropriately address the situation of countries that consistently denied their cooperation for country visits by special procedures. At the same time, she urged all Governments listed in her report to extend an invitation to her as soon as possible. While she understood that Governments had a difficult challenge before them when rising religious tensions were apparent, it was her conviction on the basis of the activities she had carried out thus far, that intolerance if met in similar terms would only breed further intolerance and extremism. It was therefore essential that Governments continued to uphold fully the norms of human rights related to freedom of religion or belief in their efforts to curb violence, even when the latter was perpetrated in the name of religion.
In the discussion following Ms. JAHANGIR's statement, the representative of the United Kingdom, speaking on behalf of the European Union, asked how she would encourage more leaders to speak out against violence. Ms. JAHANGIR said she had mentioned in her report that there must be stronger denunciations by leaders on the issue. Such denunciations had been periodical, but were then followed by a long period of silence. There had to be a consensus of the political leadership, where they would denounce violence with one voice, no matter what form it took or the possible reasons for it. That was extremely important in her view.
When asked by the same representative about her expectations regarding gender mainstreaming efforts, Ms. Jahangir said her mandate and the one before hers had studied the whole question of how the rights of women interfaced with religion. She had studied during each of her country visits how the issues in her mandate had affected the rights of women. She had also addressed the question of religious symbols, particularly the head scarf, and had looked at the question of interfaith marriages in her visit to Nigeria. She expected to gradually delve deeper into the question of the rights of women and how religious norms prevented them from having not only their rights but complete autonomy over their decision-making, and expressed hope that she would have cooperation from Governments as she dealt with that issue.
Responding to a question from Nigeria's representative on encouraging countries to open up to special visits, Ms. JAHANGIR said the purpose of such procedures was to be able to conduct monitoring. There should be cooperation and help from Governments so that human rights violations decreased over the years. The problem was that, most times, reports on violations were denied by Governments and there was no way to verify them except by in situ visits, and it was unfair if they were denied.
In response to a question from Pakistan's representative asking if Governments that represented the followers of a divine faith should respect their duties in the name of their religion or come to terms with standards created by fallible human beings, Ms. JAHANGIR said that as a Special Rapporteur, and as a human rights mechanism, she dealt with human rights instruments. The touchstone of her work had to be human rights standards, and that was how she was going to be looking at her mandate. She believed that human rights were universal and, if they were applied to all religions across the board, there would be a consensus and a level playing-ground for all.
In response to a question from the representative of Canada requesting more details on a new mechanism on freedom of religion or belief, Ms. JAHANGIR said it was perhaps best to start with a soft kind of mechanism so that everyone was at least aware of the kinds of problems and violations that were going on. As a human rights mandate, it was necessary to cooperate with Governments, but ultimately, it came down to cooperating with the people.
Answering a question from the United States representative on whether she thought a tiered system of religion discriminated against or belittled religious groups on lower tiers, Ms. JAHANGIR said the basic principle was that the registration of religious communities should be easy and quick, and not depend on extensive formal requirements in terms of number of members, or on reviews of the substantive content of the belief, structure or hierarchy of how they operated.
Responding to a question from the representative of Egypt on the rise of Islamophobia in many parts of the world and the responsibility of States in dealing with defamation of certain religions, Ms. JAHANGIR said there was not one single recipe for all counties, as every minority religion had its peculiar problems within each country. A common thread was that particularly after "9/11", there was a tendency not to be able to openly recognize or appreciate the beliefs of others, as well as a fear that was driving alarmists to speak out more openly and louder than before. Also, there was a stigmatization of Muslims in a number of countries.
There were many answers as to what should be done, but it was necessary for Governments and communities to not be antagonistic towards other religions and to invite others to not be antagonistic against them as well, she continued. On the one hand, freedom of expression was a right, but on the other there was freedom of religion or belief. Problems should be looked at on an individual case basis, because defamation of religion might mean very different things to different people, she added.
Independence of Judges, Lawyers
LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, said his report covered his main activities in 2005, including his visit to Ecuador, the right of due process, counter-terrorism, activities of the International Criminal Court and creation of the Special Tribunal for Iraq, the right to truth and justice, and the challenges of judicial power of transitional situations especially in post-conflict societies. His 2005 report also discussed his work with the Commission on Human Rights, non-governmental organizations, the Office of the High Commissioner for Human Rights and other United Nations human rights bodies.
He said he had visited Ecuador to look into the unconstitutional dismissal of the Constitutional Tribunal and the dissolution the Supreme Court and its justices in 2004, and the resulting climate of institutional instability that had culminated in the dismissal of Ecuador's President. He visited the country in April to ensure that authorities re-established a Supreme Court and a new independent Supreme Court, and in July 2005 -- after the National Congress had approved an Organic Law of Judicial Function to set up an ad hoc mechanism to select court members through a Qualifying Committee -- to urge the Committee to adapt constitutional laws in line with international treaties ratified by Ecuador. He would submit a final report on the mission to the next session of the Commission on Human Rights.
As of December, Ecuador would not have had a Constitutional Tribunal or a Supreme Court for one year, due to delays in the selection process, which was indeed necessary for institutional recovery and democratic stability. He called upon Ecuador to fill those institutional vacuums and upon the international community -- notably the Organization of American States, the Andean Community, the United Nations, Spain, Brazil and Chile -- to continue its efforts to support Ecuador in its efforts to set up a Supreme Court.
Turning to the fight against terrorism and the right to due process, he said he condemned the July attacks in London and Sharm el Sheikh and the October attacks in Bali. Only concerted action would enable the international community to effectively combat terrorism. He was concerned that many States had adopted national measures that did not comply with international human rights standards, including the creation of military commissions in Guantanamo Bay. Since January 2002, several independent experts and Special Rapporteurs had asked United States authorities to visit military bases in Guantanamo Bay, Iraq, Afghanistan and other areas where terrorist suspects were being detained. They had yet to receive a positive response from the United States to visit prisoners to investigate allegations of torture.
Concerning the International Criminal Court, he said he welcomed the recent accessions to the Rome Statute and the Agreement concerning Privileges and Immunity, but was concerned over some Governments' delays in implementing them. He also stressed the importance of the Security Council's decision to refer to the Court the situation of human rights violations in the Sudan.
The Special Tribunal for Iraq, he continued, had certain structural deficiencies including its limited personnel and time capacity and the fact that it only dealt with cases concerning crimes committed before 1 May 2003. In addition, the death penalty, which violated international standards, should not be permitted in Iraq. He urged Iraqi authorities to come to the United Nations and set up an independent tribunal to respond to human rights parameters. He also discussed recent missions to Tajikistan, Kyrgyzstan and the request for asylum from Uzbeks in Kyrgyzstan.
During the ensuing discussion segment, Mr. DESPOUY, responding to the comment of the representative of Ecuador that the a multi-stakeholder dialogue was taking place to reach agreement on procedures and rules for reform, said that during his visit, he saw the main efforts under way in that regard but warned that the international community must follow this difficult process closely.
Regarding a query from the representative of the United Kingdom, on behalf of the European Union, on direct follow-up of the situation in Ecuador, he said he had spoken with various authorities including President Gutierrez, and one month before submitting his first report he had told the President of his concern that the situation was deteriorating, not improving. He was not confident about the country's institutional aspects and the fact the roots of the conflict remained unchanged. The European Union, the Organization of American States and foreign affairs departments of several countries were concerned as well, he said, stressing the lessons to be learned from this crisis and how a judicial crisis could lead to an institutional crisis.
Regarding military tribunals, he noted important progress in terms of human rights protection and said he supported the fact that such principles governing military tribunals would be adopted.
In terms of measures to overcome the lack of credibility in Tajikistan regarding the criminal justice system, he said Tajikistan and Kyrgyzstan were in the transitional justice process and that he would study that process soon and learn from previous measures in that regard in Kazakhstan. In many former Soviet republics a prosecutor still existed to intervene in both civil and penal processes, resulting in some cases in an imbalance in due process. In more advanced systems, a judge acted as arbitrator of justice. Transitional countries were in the process of moving from a dependent judicial system or no judicial system at all to a judicial system based on the rule of law and independence of the judiciary. Countries emerging from armed conflict, such as Afghanistan, lacked a judicial system and faced the challenge of institutional reconstruction to restore justice. He said he would attempt to learn from the Office of the High Commissioner for Human Rights in that regard. The Secretary-General's study last year emphasized the importance of dealing with justice in countries where peacekeeping troops were being withdrawn, he said, noting that the United Nations' challenge was how to best analyze and work through transitional periods.
Regarding the United States representative's assertion that the military process in Guantanamo Bay provided for full trial of detainees when necessary and that the United States would continue to fully evaluate how it conducted military commissions, he said his studies of detainees and jurisprudence in Guantanamo Bay showed that the United States had an internal mechanism in place for that purpose. He said he was confident in the dialogue established with the United States, as well as compliance with his request to visit Guantanamo, as the issue had been in United Nations debates.
In reply to a query from the representative of Switzerland on how the Special Rapporteur coordinated with the High Commissioner for Human Rights on the right to truth and justice in transitional countries, he said that in countries with authoritarian Governments and where there had been forced disappearances of persons, the transitional process was very important. Reconstructing history by investigating the past was also important to know what the truth really was and is, and what had occurred in the past. The right to truth was linked to building the future. Work in that regard must be analyzed jointly with the High Commissioner, who was also conducting studies. The Ecuador case had opened the way in which Special Rapporteurs could conduct their work whereby they went beyond merely establishing facts to contributing to rebuilding a country's institutions.
Responding to an inquiry from the representative of Iraq concerning the functions of the Special Tribunal for Iraq, he said his report expressed certain reservations of a temporary nature due to the fact that at the time, the analysis of the setting up of tribunals in Rwanda and Sierra Leone could contribute to aiding the unresolved situation in Iraq. Mankind was moved by Saddam Hussein's accusations because he had been the President of Iraq. The world hoped that in trials concerning such serious crimes it could be said that the judgements given had been an act of justice. Positive results would serve to avoid shortcomings.
YAKIN ERTÜRK, Special Rapporteur on violence against women, its causes and consequences, said her work as Special Rapporteur had convinced her more than ever before, that the United Nations, as the only multilateral forum where the international community could address common problems, continued to have the potential to play an invaluable role in improving the lives of women worldwide. It was necessary to join forces in supporting and improving the United Nations mechanisms so that the potential could be fully realized. In discussing her activities since last year, she said her annual report to the Commission on Human Rights focused on the intersection of HIV/AIDS and violence against women. Women's vulnerability to that pandemic was largely rooted in pervasive gender inequality and discrimination, which often manifested in multiple forms of violence.
Highlighting country visits undertaken in 2004, she said the countries she had visited since December 2004 included the Russian Federation, Iran, Mexico and Afghanistan. For 2006, she had received invitations from the Government of Algeria, which she intended to visit in January, and from the Government of the Netherlands, which she would visit during the summer months. She had also requested to visit two other countries for which she was awaiting responses. She had also recently participated in a regional consultation in Bangkok for the Asia Pacific region earlier this month, and would be attending two more regional consultations in the coming months, one for the Africa region and another on Central Asia. She encouraged civil society actors to initiate similar meetings in other regions.
She had also participated in numerous meetings and conferences organized by States and civil society concerning her mandate, she continued. Those events presented important opportunities for dialogue with various actors concerning strategies for the elimination of violence against women, which she found invaluable for the effective implementation of her mandate. Next year, her report to the Commission on Human Rights would focus on the due diligence standard which, under Article 4(c) of the Declaration on the Elimination of Violence against Women, provided that States must "exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons". Due diligence as a term had become intimately associated with women's human rights advocacy, as well as demands for State accountability for violence against women. However, despite frequent use of the term, there was a lack of agreement and even clarity, among Governments and civil society alike, about exactly what the due diligence standard required.
In her report, she would aim to lay out the most common usage of the due diligence standard, which emphasized response to violence against women in the context of the criminal justice system, access to services and legislative reform, she continued. However, the violence against women agenda was not only about responding effectively to violence when it occurred but to actually prevent violence against women from happening at all. She would also consider how the due diligence standard could best be applied at different levels of intervention, including at the individual, community, State and transnational levels.
Responding to a question in the ensuing discussion from the representative of the United Kingdom, speaking on behalf of the European Union, asking about steps that had been taken regarding a global coalition on HIV/AIDS, as well as cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR), Ms. ERTÜRK said there had been attempts to identify areas where there could be common interventions. Her collaboration with the UNHCR had been very fruitful, and she hoped more collaboration would continue.
Answering another question from the United Kingdom's representative on country visits, as well as a question from the representative of Canada on women in armed conflict, Ms. ERTÜRK said that initially, she found cultural discourse very ideologically used by all concerned. She tended to be sceptical in associating violence with any particular culture, but instead saw it as a culture of oppression, which manifested itself in all oppressive relationships. She intended to devote a thematic report on the issue of cultural explanations, which sometimes became an obstacle to approaching violence.
Turning to a comment from the representative of El Salvador expressing concern at certain examples in the Special Rapporteur's reports of violations against women that mentioned El Salvador, such as not allowing abortions, Ms. ERTÜRK said she had written a letter to the Government requesting a written reply, but had not yet received a response. Such a response would be useful because only through such interaction could the work of her mandate be improved. She did not in any way promote the issue of abortion in her report, but given that it was not an option and that there were significant cases of girls and women becoming pregnant as a result of rape and incest, the Government was responsible for instituting a mechanism in which those women and girls were protected. It should also protect the children who were a product of such incidents, because they were victimized throughout their lives. She stressed that Member States and the international community had an obligation to institute other options if abortion was not among them.
Similarly, the representative of Venezuela took issue with Ms. Ertürk's report, because it included what the representative said was an isolated case in Venezuela of a woman who had been forcefully sterilized in 1997. Ms. ERTÜRK said the information was based on secondary material and, while such cases might be isolated, they might be picked up during research and become a part of some literature. However, it was important for Governments to take those isolated cases seriously. While she was happy to learn that the issue was not a State policy, she felt that only by looking at isolated cases could there be an improvement in the strategies of Governments.
Addressing a comment by China's representative on the pros and cons of relocating the Committee on the Elimination of Discrimination against Women to Geneva, Ms. ERTÜRK said the issue was controversial. Having been exposed to the procedures in Geneva, she saw the merit of having the Committee present with the other treaty bodies. It was necessary to have greater interaction between Geneva and New York regarding women's rights, and the human rights and policy agendas could benefit from greater collaboration. The physical presence of the Committee was really not the primary issue, she added, but there was a need to elaborate on how the two agendas could be strengthened through greater collaboration.
Responding to a question from Turkey's representative on cooperation between her mandate, the Commission on the Status of Women, and the Committee on the Elimination of Discrimination against Women, Ms. ERTÜRK said that currently, there were unfortunately not very many systematic channels, although they did benefit from each other's reports. Beyond using information, there was a need to have greater direct involvement. In the case of the Commission on the Status of Women, there was no direct access, although she had made a concrete proposal to report on a regular basis to the Commission. There was also a need to be able to identify trends in their work to see how they could all strategize together, as they all stood to benefit from further areas of collaboration, she added.
Responding to an invitation by the representative of Algeria to visit his country, Ms. ERTÜRK said she was very much looking forward to such a visit.
Turning to a question from Pakistan's representative on cultural practices, such as the demand for trafficked women, Ms. ERTÜRK said that although the demand side was no doubt important, she would emphasize the importance of empowerment of women and of measures to eliminate gender inequalities and discrimination in the fight against trafficking, and to not put all efforts into the demand side. Demand could be changed in one area, but as long as demand existed, it could move to other areas.
Responding to a question from the representative of the Philippines on coordinating with the Special Rapporteur on migrants and with other relevant rapporteurs on intersecting issues, she said there was a definite value in such activity.
In response to Ms. ERTÜRK's comments to the representative of El Salvador, the Observer of the Holy See said his mission did not try to insist on the constitutional legislation of countries regarding abortion, but that one thing that was lacking was the education of men, and efforts could perhaps be made to fortify that instead of discussing abortion as an option.
Also in response to the Special Rapporteur's comments, Pakistan's representative said that while he did not agree with Ms. ERTÜRK's response to his question concerning the trafficking of women, he was talking about the present, and such violence needed to be exposed.
In response to both comments, Ms. ERTÜRK said that it was necessary to work at all levels possible and that no strategy could be disregarded, including educating men or reducing the demand side. However, this was the third millennium and the world was already too late in the empowerment agenda. While she did not reject any of the other mechanisms, she underlined that those solutions would not bear results as long as women's subordination was approved by the practice, laws and dominant values in society. Violence against women was inherently a political issue, and there must be the political commitment to deal with it. Her call was not for the future, but for today, she added.
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