PRESS BRIEFING ON REPORTS TO THIRD COMMITTEE

Press Briefing

PRESS BRIEFING ON REPORTS TO THIRD COMMITTEE

At a Headquarters briefing for correspondents today on the reports presented to the current session of the Third Committee,(Social, Humanitarian and Cultural) Asma Jahangir, Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions, said that this year no report had been submitted to the General Assembly, because she had only recently been appointed to her position. There had been no Special Rapporteur on that mandate for six months, which meant that many things had been left pending.

However, she had made a statement before the Third Committee and upon examining her mandate intended to give priority to the unrepresented groups suffering on account of extra-judicial, arbitrary and summary executions. She would concentrate on mainstreaming the gender issue. It would not mean just counting how many women were dead, but the manner, the practice and the trends which endangered women's lives. She also intended to carefully examine the issue of child soldiers. The only article in the Convention on the Rights of the Child where minimal age was 15, rather than 18 years, was the article on child soldiers. She wanted to see if certain recommendations could be made in that regard.

The thrust of her mandate would be directed at cases of execution by organized State efforts, she continued. That included ethnic cleansing and genocide. Her mandate also concerned capital punishment. She was well aware of the fact that capital punishment was not prohibited by international law, but it should certainly be used as a measure of last resort, and that was the point of view from which she would be looking at it. Another issue was whether due process of law was followed by courts sentencing people to capital punishment in a certain jurisdiction and whether that type of punishment was directed primarily at a particular segment or class of population. In cases where capital punishment was applied to juveniles, her office would be requesting the States to reflect upon it, and in cases where capital punishment for juveniles was implied and then not executed, re-examination of the legislation would be required.

The Special Rapporteur of the Commission on Human Rights on Torture, Nigel Rodley said that this year he was asked for the first time to present a report to the General Assembly. His work implied providing assistance in individual cases of torture. Until 1980, it had been unthinkable for the United Nations to get involved in cases of violations or threats of violations of human rights of individuals, even when their life or limb were at stake. In 1980, a Working Group on Enforced or Involuntary Disappearances was established by the Commission on Human Rights, which developed a practice of making urgent appeals in cases when people were detained in circumstances suggesting that detention might lead to disappearance. The Commission also sought permission to visit countries where problems existed.

In 1982, the mandate of the Special Rapporteur on Summary and Arbitrary Executions, as it was then called, was established, he said, which followed the same practice. In 1985, the mandate of the Special Rapporteur on Torture was created. The Special Rapporteur worked with information coming to the Office of the High Commissioner for Human Rights in Geneva. If that information was urgent, it was transmitted directly to the Foreign Ministry of the country concerned. Substantiated allegations of torture were summarized and transmitted, to the Permanent Mission of a country, in questions for the attention of its Government, requesting a response from that Government. Such a response could include information regarding investigation that might have taken place, disciplinary or penal remedies or compensation available. The dialogue was then reproduced in a report to the Commission on Human Rights, which met in Geneva from mid-March to the end of April. Annexes to annual reports contained information about visits to particular countries.

All that information was in the public domain, he said. Thus it was now possible, on the basis of reports of the Working Group on Enforced and Involuntary Disappearances, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Rapporteur on Torture and other similar thematic mechanisms to get a substantial picture of the world situation regarding criminal violations of international law.

He said that in his report to the General Assembly he had stressed that the international community was dealing with crimes in the area of torture and extra-judicial executions. Those were crimes under most national jurisdictions, as well as under international law. The problem was that in principle it was a crime on the part of those responsible for upholding the law, and the question was how to break through the shield of impunity.

Impunity had been on the agenda of the United Nations for a long time. It had been referred to in the Declaration and the Programme of Action of the World Conference on Human Rights, which was held in 1993 in Vienna. It was also effectively on the international agenda before the Rome Conference on the establishment of the International Criminal Court. The Statute of that Court envisaged bringing before international jurisdiction those criminals against humanity who escaped punishment under national jurisdiction. Criminals against humanity were persons guilty of torture, murder or enforced disappearances on a wide-spread or systematic scale in the context of an attack against a particular civilian population.

Regarding torture, he said that attaining impunity would be much more difficult if prolonged incommunicado detention were dispensed with. Such detention implied lack of access to the outside world, including family, doctors and lawyers. Any detention over the period of 24 to 48 hours was considered "prolonged" detention. If the custodians could not keep the detained in the circumstances of prolonged incommunicado detention -- at their mercy -- it would be much more difficult to inflict the kind of suffering that they indeed inflicted. In cases of alleged torture he had suggested that if

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prolonged incommunicado detention was permitted in the countries concerned, the burden of proof should be reversed: instead of the victim having to prove that torture had taken place, those guilty of the crime should have to deny it.

He had also addressed the issue of impunity in law, he said. It was clear that something had to be done at the national level to ensure that law- enforcement officials were held accountable and properly supervised, and that judges did not turn a blind eye on allegations of torture. At the international level he had urged speedy ratification of the Rome Statute of the International Criminal Court and ratification of the 1994 United Nations Convention against Torture by States that had not already done so. So far, there were only 106 States Parties to that Convention, which required that torture be considered a criminal offence and that States take jurisdiction over alleged torturers wherever they found them, regardless of where the torture had been committed, as well as the nationality of the victim and the perpetrator.

At the transnational level, he had urged States to adopt the necessary legislation, because all too often -- despite the fact that international law permitted a State to take jurisdiction -- the States did not have national jurisdiction in place to exercise jurisdiction over torture committed elsewhere. That had been his message to the General Assembly with a view to make torture a phenomenon of the past if not by the end of the millennium, then soon after it began.

Asked about his position regarding the case of General Pinochet, he said that he would speak only in his personal capacity. He had not formally considered the situation as a Special Rapporteur on Torture. He had not heard the judgement of the House of Lords yet. The courts might decide that the former head of the Chilean junta continued to enjoy immunity as a Head of State, although he no longer was one. If that position was upheld, it would present an example of a legal gap that he had spoken about before. In that case, there would be a problem in English law, which did not have clear legislation requiring that immunity of a Head of State be superseded by the need to bring to justice criminals against humanity.

Even if the threshold case was resolved against ex-President Pinochet, it was still not clear if it would be possible to extradite him, because the crime could be punishable differently in England as compared with Spain or some other requesting country for reason of territorial limitations on jurisdiction in current English law. There were legal obstacles. He did not want to be pessimistic about the outcome, but English law would need to be amended to assure proper contribution to the enforcement of international law regarding crimes against humanity.

To a correspondent's comment that in some countries ratification of an international instrument by the national Parliament turned it into law of the

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land, Mr. Rodley said that it was not the case in England. While some national legislations could incorporate an international convention, the Convention on Genocide did not cover "politicide". The Torture Convention did envision universal jurisdiction, and it was indeed incorporated into English law. However, it was new legislation, and it was not retroactive, which meant that it was not applicable in the particular case of Mr. Pinochet.

Asked whether there was a decrease in the number of cases in torture worldwide, Mr. Rodley said that it was not so. It was very difficult to define trends, because the definition of torture was changing. Now there was increased awareness of torture inflicted on ordinary criminal suspects, while in the past most information emerging on the international plane concerned torture of political prisoners. It could be an old trend, which the world was just becoming more aware of. His previous referral to the end of the millennium did not mean that he envisioned cessation of torture by that time, but he hoped that it would not last long into the new millennium.

Asked about trends in eliminating summary and extra-judicial executions, Mrs. Jahangir said that it was very dangerous to speak about growing or decreasing trends in that field, because it was unknown whether the figures were influenced by increased awareness of the issues. By trends she meant different types of executions, and that had been her message to the General Assembly. They could involve State practices, protection of certain groups by a State, or neglect on the part of the State. It could also mean the low value that a State put on certain groups of people.

Asked about possible change in the definition of torture as a result of changes in the nature of conflicts, Mr. Rodley said that the definition of torture did not specify atrocities, because human beings were too ingenious in inflicting excruciating suffering on others for purposes of getting information, obtaining a confession, intimidation or punishment. The internationally agreed definition of torture was "infliction of severe pain or suffering" for above-mentioned purposes. Such pain could be physical or mental. The law of armed conflict prohibited such practices, as did international human rights law in times of peace. There was more of a tendency for people involved in a conflict to pursue "unbridled methods".

New methods of torture included extreme forms of punishment used in accordance with law, he continued. In his annual report to the Commission on Human Rights he had taken the position that some extreme forms of corporal punishment at least constituted cruel, inhuman or degrading punishment and in some cases amounted to torture. The Commission had supported him, taking the same view. That was a particularly interesting development, because the definition of torture in the United Nations Convention on Torture excluded lawful sanctions from the definitions of torture. However, the argument, which the Commission seemed to have agreed to, was that the sanction had to be lawful not only on the national, but also on the international level. The argument was that if corporal punishment was not a lawful sanction under

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international law, then extreme forms of corporal punishment could indeed amount to torture.

Mrs. Jahangir added that one of the tasks of the Special Rapporteur was to distinguish new and changing trends and to make the international community aware of them to prevent their spread.

To a question about particular countries where torture was practised, Mr. Rodley said that his annual reports to the Commission on Human Rights were not abstract. They contained country-by-country statistics, including the number of cases, replies received from the countries, general allegations and specific observations. He believed the same was true in regard to the Special Rapporteur on Executions. There were also addenda listing every single case submitted to a Government, as well as its response to an inquiry. He repeated that this year he had reported to the General Assembly for the first time, and the mandate he had been given was to give an oral interim report on trends and developments within the mandate. He did not interpret that to indicate the need to speak of individual countries. If a draft resolution were adopted requiring him to report to the General Assembly next year, that report would contain some country-specific elements.

Responding to a remark from a correspondent regarding United Nations television coverage of the debate in the Third Committee, the representative of the Department of Public Information, Marian Awwad, said that she was not aware of the schedule, but she would make it known to her colleagues that the correspondent found such coverage useful.

A correspondent spoke about the fact that if a woman in Pakistan brought up proceedings against rape, the victim could go to jail. What was the role of the United Nations officials in such cases? she asked. Dr. Jahangir answered that her report did not contain such information. It dealt with extra-judicial, summary or arbitrary executions and she did not have an answer to that question. It was important to be very responsible about information, because allegations that somebody was part of a serious crime or allowed it to happen were very serious. Issues could be brought before the international community to have a dialogue with governments. However, the United Nations had no authority to tell governments what to do.

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