Sixty-first General Assembly

Third Committee

27^th & 28^th Meetings (AM & PM)

EXPERT IN THIRD COMMITTEE CITES ‘SURPRISING LACK OF AWARENESS’ AMONG GOVERNMENT

OFFICIALS OF TORTURE AS MOST SERIOUS HUMAN RIGHTS VIOLATION

Committee also Hears Experts on Religious Freedom,

Judicial Independence, Internally Displaced Persons, Human Rights Defenders

More than 20 years after the adoption of the United Nations convention against torture, there remained a surprising lack of awareness, among domestic law enforcement officials and politicians, that torture constituted one of the most serious violations of human rights, the Third Committee (Social, Humanitarian and Cultural) was told today, as it continued to hear presentations from experts, on the promotion and protection of human rights.

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, who made the observation, said that the main reason for the Convention had been to strengthen the existing absolute prohibition of torture, through a series of preventive measures and a strong commitment of States to fight impunity.  All 141 States parties to the Convention undertook the binding obligation to criminalize torture, he said.  But passing laws, like ratifying treaties, was just the beginning -- and the real commitment of States had to be demonstrated in their implementation.

“Torture itself, and the conditions that permit it to occur, are abhorrent,” he said.  “I have seen what it does to people.  It happens worldwide.  This understandably emotive and sensitive subject, also makes Governments defensive.  However, for measures to be meaningful, Governments need to step up and be courageous in embracing efforts to eradicate torture.”

Torture was cited, as well, by HINA JILANI, Special Representative of the Secretary-General on Human Rights Defenders, who said that a large number of defenders had reported being ill-treated and even tortured and raped, while under arrest or in detention.  She also told the Committee that it appeared that policing of demonstrations had become more violent, with a “troubling increase” in incidents, which indicated excessive and often indiscriminate use of force.  Particularly disturbing was the use of so-called “non-lethal weapons”, such as rubber bullets and stun grenades, and there were credible reports of incidents, in some countries, being used to instigate violence, at otherwise peaceful assemblies.  Meanwhile, pro-democracy activists and those asserting the rights to independence or self-determination were among those most at risk of prosecution or detention, under security laws and anti-terrorism measures, she said.

ASMA JAHANGIR, Special Rapporteur on Freedom of Religion or Belief, said the principles set out in the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, had been coming under increasing pressure.  It was disturbing, she said, that anti-terrorism measures had significantly affected the freedom of religion or belief of numerous religious groups, particularly Muslims, around the world.  Members of groups perceived to hold extreme religious views had, on many occasions, been harassed, arrested and, in some cases, deported.  Regarding detainees at Guantanamo Bay, she expressed some interrogation techniques had been based on religious discrimination and had aimed at offending religious feelings; her report included a number of recommendations that she hoped would be considered by the United States.

Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, called on the General Assembly to adopt –- and Member States to sign and ratify -- the International Convention for the Protection of all Persons from Enforced Disappearance.  It would confirm that the practice of enforced disappearances was a crime against humanity, and reaffirm the right of victims to justice, reparations, and knowledge of the truth.  Mr. Despouy also focused on military justice, emphasizing that military courts did not have jurisdiction over serious violations of human rights.  Under international law, military tribunals could not be an integral part of the judicial system.  Regarding detainees at Guantanamo Bay, he referred to the joint report -- written with the Chairperson of the Working Group on Arbitrary Detention; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health -– that had been presented before the Human Rights Council, in September.  Since then, he said, the United States had adopted a law authorizing secret detention centres, harsh interrogation methods and military tribunals.

WALTER KÄLIN, Representative of the Secretary-General on the Human Rights for Internally Displaced Persons, said that conditions for internally displaced persons had changed, for the better, in some contexts, such as in Nepal and Uganda.  But, it had worsened in such places as Iraq and Sudan’s Darfur region; in these cases, the number of internally displaced persons had continued to grow, with Governments and the international community unable or unwilling to protect their lives and well-being in any meaningful manner.  He stressed a need for national laws and policies to protect and help internally displaced persons; he also emphasized the need to find durable solutions for displaced people, whose rights and needs should be considered during peace negotiations.  He urged donors to support national Governments in addressing not only the humanitarian crises, caused by internal displacements, but to assist, also, in reconstruction and the search for durable solutions.  The sheer magnitude of displacement often made outside aid essential, he said.

The Committee is expected to reconvene Wednesday, 25 October, at 10 a.m. to hear presentations by Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; Yakin Erturk, Special Rapporteur on violence against women, its causes and consequences; Bernards Andrew Nyamwaya Mudho, Independent Expert on the effects of economic reform policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights; and Jean Ziegler, Special Rapporteur on the right to food.

The Committee is also expected to hear the introduction of draft resolutions on trafficking in women (document A/C.3/61/L.11) and torture and other cruel, inhuman or degrading treatment or punishment (document A/C.3/61/L.15).

Background

The Third Committee (Social, Humanitarian and Cultural) met, today, to continue its general discussion of human rights questions.  For additional background, please see Press Releases GA/SHC/3856, GA/SHC/3857 and GA/SHC/3858 of 17, 18 and 19 October respectively.

The Committee had before it the Report of the Committee on the Rights of the Child (documents A/61/41 and Corr.1), which recalled two decisions taken during the reporting year:  one to recommend that the Commission on Human Rights consider a working group to develop guidelines for the protection and care of children without parental care; the other on methods for considering reports from States parties on children in armed conflict and on the sale of children, child pornography and child prostitution.

It noted recommendations, made to 13 States parties, relating to children affected by armed conflict, which focussed on strengthening measures to prevent the recruitment of children into armed forces and expanding efforts at their demobilization and reintegration.  Recommendations were also made, relating to the protection of children from landmines.

The Committee, also, had before it the Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) (document A/61/36), which focuses on developments since the Assembly’s 60^th session in implementing the High Commissioner’s action plan and the OHCHR management plan, creation of the Human Rights Council and treaty body reform.  The report highlights efforts to strengthen OHCHR’s presence in the field and partnerships with the United Nations; promote development, poverty reduction and the Millennium Development Goals; establish the Human Rights Council; conduct universal periodic reviews; and reform treaty bodies.

Human Rights Defenders

HINA JILANI, Special Representative of the Secretary-General on Human Rights Defenders, said that, from the start of her mandate until December 2005, she had addressed 253 communications to Governments, regarding situations in which human rights defenders had been either denied the freedom of assembly or harmed while exercising that freedom.  Defenders had been killed, arrested and detained; they also had been prevented from holding or participating in peaceful assemblies and from travelling to human rights gatherings.  Arrests and detentions had been often arbitrary, mostly carried out during demonstrations that had been disrupted by force.  It appeared that the policing of demonstrations had become more violent; there had been a troubling increase in incidents which indicated excessive and, often, indiscriminate use of force.  Reports had been received of more than 85 defenders who had been killed during demonstrations, pickets, meetings or conferences.  The use of so-called “non-lethal weapons”, such as rubber bullets and stun grenades, had been particularly disturbing; authorities in some States had been unable to fully explain the authorization and oversight of such weapons.

Credible reports had been received about incidents in some countries, indicating that undercover personnel had been used to instigate violence at peaceful assemblies, she said.  Pro-democracy activists and those asserting the rights to independence or self-determination had been among those most at risk of prosecution or detention under security laws and anti-terrorism measures.  There had to be a strong commitment, by States and the international community, to enforcing collective action for the promotion and protection of human rights.

Discussion

Responding to questions from the representative of the United States, among other nations, Ms. JILANI said that, where States had failed to hold non-State actors responsible for actions directed at human rights defenders, cycles had emerged that were hard to break.  Impunity pointed to weak institutions; if impunity was to be addressed, political goodwill had to be matched by strengthened institutions.

In reply to the representative of Cuba, she said that the promotion and protection of human rights grew out of a commitment, and that defenders had been undeservedly charged with all kinds of motives that were not necessarily there.  Individuals or elements who lacked good faith, would not, in the opinion of the Special Representative, qualify as defenders.

In response to the representative of Finland, she thanked the European Union for its guidelines on human rights defenders, as those had been a step forward in implementing the Declaration.  The use of judicial procedures to prosecute defenders had been worrying, and the international community had a responsibility to ensure that such trials were monitored.  It was important for the Special Representative to have the capacity to engage in timely follow-up visits to countries that had been the subject of recommendations and Governments had to understand that it was essential to have their cooperation.  In the event of regional trends involving defenders, it could be more effective for regional groups to make time to meet with the Special Rapporteur.

Responding to the representative of Canada, she said she thought that all special representatives brought forth information which, if given due importance, would serve as early warnings to the international community.  In the case of reports on human rights defenders, the reports had consciously been prepared in a manner that put into context the social, political and economic situations, in which defenders operated.  It was very important that such reports be looked at with respect to developing a protection strategy for defenders.

Replying to the representative of Benin, she said that it was the right of defenders, as laid down in the Declaration, to raise issues of misgovernance or human rights violations.  The manner in which Governments responded to criticism was key to making criticism constructive.  In instances where Governments did not take criticism in the spirit in which it had been made, tensions had emerged.

In response to the representative of Indonesia, she thanked his Government for its recent invitation, and hoped she would be able to visit very soon.

Torture, Other Cruel Treatment

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said that, since he had assumed his mandate nearly two years ago and carried out five country missions and various activities related to it, he had found a surprising lack of awareness among domestic law enforcement officials and politicians, that torture constituted one of the most serious human rights violations.  The main purpose of the United Nations Convention against torture, adopted more than 20 years ago, was to strengthen the existing absolute prohibition of torture, through a series of preventive measures and a strong commitment of States to fight impunity.  All 141 States parties to the Convention undertook the binding obligation to criminalize torture, as defined in Article 1.  But passing laws, like ratifying treaties, was just the beginning, and the real commitment of States was demonstrated in their implementation.  Governments needed to step up and be courageous in embracing efforts to eradiate torture.

Turning to the issue of non-admissibility of evidence extracted under torture, Mr. NOWAK said the prohibition of torture was absolute and States risked violating that prohibition and their obligations under international law, by allowing evidence obtained under torture to be admissible in judicial proceedings.  On the issue of country visits, he commended Georgia, Mongolia, Nepal and the People’s Republic of China for the cooperation they had extended during his visits to those countries last year.  He mentioned details of his visits to Jordan, in June, and to the Russian Federation, in October.  Upcoming visits were scheduled for Paraguay, in November, and Sri Lanka, in early 2007.  He was pleased to announce invitations from Nigeria and Togo, and those visits were expected to take place in April and June of 2007, respectively.  He hoped to receive an invitation from Indonesia and complete a visit to that country in the latter part of 2007.

Torture prevention was the best way to combat torture, and for prevention to be most effective, efforts had to be carried out, locally, by independent national institutions, he said.  Therefore, a significant theme of his work, in both country visits and advocacy work, was promoting ratification of the Optional Protocol to the Conventions against Torture (OPCAT).  He reminded all States parties to the Convention of their obligations, under its article 2, to take effective measures, to prevent acts of torture in any Territory.

Finally, he recognized the importance of regional work in the area.  Anti-torture measures and initiatives were often much more significant, timely and responsive at the regional level, such as through judicial decisions or regulatory monitoring mechanisms.  Only through the benefit of cooperation with Governments, national organizations and civil society, as well as regional human rights organizations, could the mandate for the Special Rapporteur expect to make a real contribution to the elimination of torture and ill-treatment.

Discussion

Asked, by the representative of Cuba, whether counter-terrorism legislation, in some countries, might result in impunity for acts of torture, Mr. NOWAK stressed the need to respect the absolute prohibition on torture.  He recognized that, in the fight against terrorism, it might be necessary to take legislative and other action that could interfere with human rights, to some extent.  Human rights itself, was a flexible concept, and there were few absolute rights.  Many rights, such as the right to privacy, could be limited in line with the principle of proportionality, if doing so was necessary to protect people from a threat to their safety.  However, some rights were absolute, such as the protection from torture and other cruel, inhuman or degrading treatment.  No balancing was allowed between freedom and security and that right, he said.  Governments must ensure that counter-terrorism legislation was in line with the absolute prohibition of torture.  He had stressed, to Governments, not to rely on diplomatic assurances, which undermined the absolute prohibition on torture.  Governments must be careful not to open up a Pandora’s Box.

He thanked the representative of Norway for highlighting Article 15 of the Convention Against Torture, stating that no evidence obtained under torture shall be admissible in judicial proceedings.  He noted that his report reflected on two important cases in Germany and United Kingdom, where Article 15 was not taken sufficiently into account.  The burden of proof could not be on the accused, in a criminal proceeding, to prove that the information used was extracted by torture, which would be an impossible task, he said.  If there was a well-substantiated allegation that torture might have been used, the burden of proof must shift to the State.  He had discussed issues regarding the burden of proof and interpretations of the Convention, with the Committee Against Torture and was confident that their positions were aligned, as there were on other controversial issues, such as diplomatic assurances.

He also thanked the representative of Uzbekistan for providing information about the activities undertaken by his Government to implement the recommendations made by the former Special Rapporteur on torture, following his visit.  Asked how he would define the “systematic use of torture,” he said he would use that term very cautiously.  Having sought guidance, in resolutions of the Economic and Social Council and in the case law arising from Article 3 of the Convention Against Torture, he noted that “systematic” did not mean that it was a Government policy, though if it was a Government policy, then clearly it was systematic.  If torture was widespread, if that was known, and the Government was not taking enough initiative to combat the practice of torture, then it might be called systematic.  So far, he had only used the term in relation to Nepal, at the time of his visit.  Already, the situation had gotten better, and he might come to different conclusions.  However, at the time, he had made the determination, based on lot of evidence and frank admissions by high-level police and military officials that, in the fight against the Maoists, torture was practiced.

Asked, by the representative of Canada, about his work on gender-specific acts of torture, he said he was concerned that, in the individual cases brought to his attention, the vast majority of cases referred to men.  He had, for instance, received very few cases of female genital mutilation, which he definitely considered torture or cruel, inhuman or degrading treatment.  Torture by non-State actors also fell within his mandate, if the Government was responsible, by acquiescence or by condoning such practices.  He hoped such cases would be reported in a more systematic manner.  He would focus more specifically on gender-specific acts of torture in his next report, including reference to traditional practices, and also forms of corporal punishment, such as stoning a woman for adultery.  He was aware that this practice came from the Koran and Shariah law, but said that it must be in line with international human rights law, including by not being discriminatory with regard to gender.

He thanked the representative of Finland, who spoke on behalf of the European Union, for offering assistance in helping ensure that States respected the terms of reference for visits by the Special Procedures.  Whatever the international community could do to ensure that Governments could ensure that the terms of reference were sacrosanct and non-negotiable would be extremely helpful, he said.  The terms of reference of fact-finding missions, for the Special Procedures, were not given the attention they needed.  In his case, it was perhaps more important than for others, since his requirements included access to all places of detention, freedom of movement, and the ability to speak, in private, with any detainee, with no Government official allowed to listen to or monitor the conversations.  That was a very, very important principle, he said.  People were afraid to speak out, and it was essential to assure them that the conversation was private and confidential.  He regretted that two planned fact-finding missions -– to Guantanamo Bay and to the Russian Federation -- had had to be cancelled on exactly that issue.

He said he was working to strengthen cooperation and collaboration with other human rights bodies, and also was working in cooperation with regional organizations, as suggested by the representative of Turkey.  He referred to his consultations with the Organization of American States, the African Union, and the Council of Europe, as well as with regional representatives with relevant portfolios.  He suggested that cooperation, with regional bodies, could be among the recommendations made in resolutions adopted by the Third Committee.

Asked about communication with Governments, he repeated that such communication was often a one-way street.  The majority of States were not responding to his communications in any meaningful manner.  He could only appeal to Governments to strengthen their cooperation with the Special Procedures; otherwise the individual communication process was not very helpful.

He agreed with the representative of the Republic of Korea, on the importance of the universal periodic review system at the Human Rights Council, which should ensure non-selectivity.  In order to ensure the system’s effectiveness, he felt, it must be based on a clear division of labour, between Governments and the human rights experts, including the treaty monitoring bodies, Special Rapporteurs, and the Office of the United Nations High Commissioner for Human Rights.

He thanked the representative of Georgia for providing information about her Government’s efforts to implementing his recommendations, including, by ratifying the Optional Protocol to the Convention Against Torture.  He shared her concern that the areas of Abkhazia and South Ossetia were not under the de facto control of the central Government, and there were reports of the situation there worsening, concerning torture and ill-treatment.  He noted, in particular, the treatment of people on death row there, in a country where the death penalty had been abolished.

The representative of Syria had expressed concern over Mr. Nowak’s reference to the stoning of a woman for adultery and had asked him not to politicize issues related to religion and to be mindful of cultural sensitivities.  In response, Mr. NOWAK said that, while the system of human rights was flexible and took into account particularities of region and religion, there were certain minimum standards.  There was abundant international consensus on that issue, including in the jurisprudence of the United Nations Human Rights Committee and of the Committee Against Torture.  He appealed to those few States in which, that kind of punishment was still allowed to change their respective criminal laws.

In response to the representative of the Russian Federation, who cited national legislative provisions that interfered with the terms of reference, required by the Special Rapporteur, Mr. NOWAK said there did not appear to be any such legal impediment.  He said that he had been assured, by a senior official, that he would receive a letter, before today, so that he could report on progress, regarding the visit to the Third Committee.  He said that the law in question, regarding supervision of the penitentiary system, included an exemption allowing visits from representatives of international, inter-State, or intergovernmental organizations authorized to supervise respect for human rights.  He noted that that exemption had been applied in the past, including for the High Commissioner for Human Rights.  He said he would respect that law and would expect it to be applied to him, as it had been to others.  He hoped that the issue would be resolved and that his mission could be carried out in the near future.

Internally Displaced Persons

WALTER KÄLIN, Representative of the Secretary-General on the Human Rights for Internally Displaced Persons, said that conditions for internally displaced persons had changed for the better in some contexts, such as in Nepal and Uganda.  However, the situation had deteriorated in other places, such as in Darfur and Iraq, where the number of internally displaced persons continued to grow with the Governments, together with the international community, unable or unwilling to protect their lives and well-being in any meaningful manner.  He was saddened to witness such desperate situations, where so many innocent lives had been lost or cut short by disease, lack of food and violence.  He proposed policy guidelines and practical tools to assist those responsible for the protection of internally displaced persons to better fulfil their duties.  That the Guiding Principles on Internal Displacement had been recognized in the World Summit Outcome Document in 2005, and that he had received an increasing number of invitations from Governments and organizations, was highly encouraging.

Among his key recommendations was the need for national laws and policies to provide for the protection of, and assistance to, internally displaced persons, particularly in countries facing a large scale of conflict-induced displacement.  However, given the unpredictability of natural disasters, he suggested that all Governments establish the necessary legal and policy frameworks, in accordance with the Guiding Principles and, at a minimum, designate a national focal point for the protection of internally displaced persons.  He also stressed the need to pay particular attention to potentially vulnerable groups among displaced people, such as child and woman-headed households, older persons, persons with disabilities, or members of indigenous or ethnic groups that were traditionally marginalized.  Such groups might require special protection measures during their displacement and targeted assistance.

He also emphasized the need to find durable solutions for the displaced, stressing the need to ensure that the rights and needs of internally displaced persons and returnees were considered during peace negotiations and transitional arrangements and the need to recognize that land and property issues were a central element to fostering long-term solutions.  Displacement could only be considered ended, when the internally displaced person had found a durable solution to his or her situation and had access to the means to reinstate rights that had been violated, or to access reparation or compensation.

Finally, he called on the international community, including the United Nations and regional organizations, to strengthen support to Governments of countries with internally displaced persons.  He urged donors to support national Governments in addressing not only the humanitarian crisis, caused by internal displacement, but to assist, also, in the reconstruction of their countries and the search for durable solutions.  The sheer magnitude of displacement often made outside aid essential, he said.

Discussion

In the discussion that followed, Mr. KÄLIN responded to a series of questions and comments from delegations.  He agreed, with the representative of Uganda, that recent developments, toward consolidating peace in that country, had been encouraging.  What was needed now was more full-fledged efforts to make returns sustainable, he said, including by paying attention to security, the police, the courts, property issues, and by providing services for returnees.

The representative of the Sudan took issue with a comment made by Mr. Kälin, in his statement, which said, in reference to the situation in Darfur, that the Government was unable or sometimes unwilling to protect the lives of internally displaced persons.  He listed a number of steps taken, by his Government, to address the needs of internally displaced persons and asked on what basis the representative had made his assessment.

Mr. KÄLIN said that he did not deny that certain efforts had been undertaken, but added that one had only to look at the figures and facts on the ground, to see that the situation of internally displaced persons in Darfur, unfortunately, was very difficult and that overall progress made was far from sufficient, and that there had even been setbacks in certain areas.  He noted incidents of lack of cooperation or a lack of vigorous steps needed to address the dangers to which internally displaced persons were exposed.  He stressed that his remarks were not about politicizing the issue, and that he stood ready to visit the country and make an independent assessment of the situation.

The representative of the Sudan repeated his delegation’s concerns and asked Mr. Kälin to withdraw the remark from his statement.  He asked the representative to be neutral and impartial and asked that his delegation’s concerns be reflected in the record of the meeting.

Along the same lines, the representative of Iraq asked why his Government was accused of being unable or unwilling to protect the lives of internally displaced persons.  He noted the efforts undertaken by his Government and asked why Mr. Kälin had not acknowledged such activities. 

Mr. KÄLIN said that his report had not provided the opportunity to look, in detail, at the situation in Iraq, but suggested that there might be general agreement that the situation had become so difficult that, even with the best efforts, the Government was not always in a position to protect those people who had been displaced.  He was encouraged that an internally displaced persons policy was in the process of being developed and stood ready to provide assistance to the Government.

Mr. KÄLIN expressed appreciation for the comments of the representative of Serbia, who had stressed the need to create conditions for sustainable returns in Kosovo.  Mr. KÄLIN agreed that what was needed was security, the settlement of property issues, and the creation of conditions for returnees to stay.  He appealed to those involved in ongoing negotiations, to place the necessary emphasis on the rights of internally displaced persons.

Asked, by the representative of Switzerland, what measures he had taken to ensure implementation of the Guiding Principles on Internal Displacement by Non-State Actors, Mr. KÄLIN noted discussions he had had, in secessionist areas of Georgia, with the de facto leaders of Abkhazia and South Ossetia.  Unfortunately, there had not been enough of a positive response to his appeals.  He also had appealed to Non-State Actors, in Nepal, to help ensure durable solutions for returnees and hoped that there would be further dialogue on the issue.  Asked, also, what “lessons learned” from other conflicts could be applied to the situation in Uganda, he noted the importance of “early recovery”, meaning efforts in the area of development, reconstruction of infrastructure, and the re-opening of schools and health centres.  He said it was crucial not to underestimate the potential risk of land disputes, suggesting the creation of mechanisms able to handle large numbers of land disputes, within a reasonable period of time.  He also urged national Governments to work closely, with all relevant actors, including traditional leaders of displaced communities and with local authorities closest to the ground realities.

Responding to a question from the representative of Norway, about follow-up to his missions, by the United Nations system, he noted that there had been mixed results, varying from country to country.  Part of his work was to mainstream attention to internally displaced persons, throughout the United Nations system, and he regularly debriefed relevant agencies and remained in contact with them, regarding his recommendations.  Sometimes, the response was slow and not as vigorous as he wished it to be.

Asked, by the representative of Liechtenstein, how he intended to work with the newly established Peacebuilding Commission, he said he expected it to be an extremely important body to address situations of internal displacement.  Most conflicts had resulted in large numbers of people being displaced.  Peacebuilding was not just about removing threats to their security, but about building conditions for durable solutions.  He would formally approach the Peacebuilding Commission later this year or early next year, with a study in which he would explore the relationship between the concept of peacebuilding and the challenges faced by internally displaced persons and which would outline the role that could be played, by the Peacebuilding Commission, in helping find durable solutions to internal displacement.

Asked, also, whether it was always possible and necessary for internally displaced persons to return to their countries of origin, including in situations of long-term displacement, he stressed the guiding principle that internally displaced persons were citizens of their country, and that it was up to them to opt for the durable solution that they preferred, even after a very long time.  He had insisted that they must be provided with the opportunity to start a new life, in host countries, but that did not mean that they lost their right to return to their country of origin and to recover their property.

Responding to a question, from the representative of Colombia, on what he meant by his recommendation for a “cluster approach”, by the specialized agencies of the United Nations, Mr. KÄLIN said the approach was nothing absolutely new.  A collaborative approach had been endorsed by the General Assembly.  The “cluster approach” was not an attempt to replace the collective approach, but an attempt to make it better, by assigning clear responsibilities to the specialized agencies.  It was an internal mechanism to satisfy the demand of the Member States for a more coordinated humanitarian response.

He thanked the delegation of Azerbaijan for the country’s invitation and said he intended to visit in the first half of 2007.  He also thanked Georgia for the excellent cooperation received and said he was happy to be invited for a follow-up visit, later in 2006, focused on reform of the country’s internally displaced persons policy.

Freedom of Religion or Belief

ASMA JAHANGIR, Special Rapporteur on Freedom of Religion or Belief, said the principles set out in the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief had been coming under increasing pressure.  Measures adopted by Governments to counter terrorism, had significantly affected the freedom of religion or belief of numerous religious groups, particularly Muslims, around the world; that was disturbing.  Members of groups perceived to hold extreme religious views had, on many occasions, been harassed, arrested and, in some cases, deported.  There had been reports that preaching in mosques was controlled by State authorities and that the nomination of imams was severely regulated.

The Special Rapporteur recalled paying two country visits in the past

year -- one to Azerbaijan, where the Government’s respect for freedom of religion or belief had not been uniformly observed in all regions; and in the Maldives, where limitations on the right to freedom or belief of non-Muslims had been a source of concern.  The Governments of Tajikistan and the United Kingdom had extended invitations to visit in 2007.  Regarding detainees at Guantanamo Bay, some interrogation techniques, based on religious discrimination and aimed at offending religious feelings, had been a cause for concern; the Special Rapporteur’s report included a number of recommendations that, hopefully, would be considered by the United States Government.  The use of religious beliefs for political purposes, along with negative stereotyping, had often posed a challenge to the growth of a tolerant global society.  Member States were urged to ensure that there was no impunity for incitement to religious hatred, as defined in Article 20 of the International Covenant on Civil and Political Rights.  The right to freedom of religion or belief had to add to the values of human rights, and not unintentionally become an instrument for undermining freedoms.

Discussion

Responding to questions from the representative of Finland, Ms. JAHANGIR said that people with no religion had equal rights; numerous people had no faith, and they could not be discriminated against.  It had to be kept in mind that people had the right to take the religion of their choice, or to take no religion at all.  Regarding legislation, while it was important to guarantee freedom of religion or belief in law, religion itself should not be legislated, and it was not up to Governments to determine how any religion was practiced.  She acknowledged that she had been to the Holy See, and had had some interaction with the Organisation of Islamic Conference; at such meetings, the intention had not been to talk only about religion, but basically, to talk about how inter-religious dialogue could unfold in a deeper manner.  When she had been in Sri Lanka, she had met two high priests from the Buddhist community; such encounters took place constantly.  The situation regarding the Bahá’í faith in Iran had been a great concern, and there had been a very worrying pattern of arrests.

Responding to the representative of Uzbekistan, she said controls on religious literature varied.  For instance, in one country, one could not bring in a religious book at all; in another, a religious community had to go through certain government mechanisms before releasing a book; in a third, 200 books could be imported, but only two distributed.  It seemed as if the content had not been an issue, but rather, the concern that a book not be used to propagate a religion.

Responding to the representatives of Azerbaijan and the Maldives, she said, her visit to that country had really been a treat.  There had been exceptional cooperation from the authorities, and some of the examples she had come away with had also been exceptional.  A lot had been learned during the visit to the Maldives, and a report would be forthcoming shortly.

Responding to the representative of Canada, she said that, while diversity ought to be celebrated, nothing could derogate from the principles of human rights, on grounds of cultural specificity.

Responding to the representative of Cuba, she said that, in the current global atmosphere, only traditional religions had been heard; the concerns of non-traditional religions had not been addressed.  Many violations continued to take place, and it would not be possible to do justice to freedom of religion or belief, if such violations were not looked into.  Regarding freedom of religion or belief, there were both global patterns and regional patterns, and therefore strategies had to be different from place to place.  Inter-religious dialogue had to be deeper, and women should always play a role, as her mandate required more gender mainstreaming.

Independence of Judges and Lawyers

LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, called on the General Assembly to adopt the International Convention for the Protection of all Persons from Enforced Disappearance and urged Member States to sign and ratify what would be an important legal instrument.  He noted that the text was the result of intense diplomatic efforts and campaigning, by victims and their families.  The Convention confirmed that the practice of enforced disappearances was a crime against humanity and reaffirmed the right of victims to justice and reparations, and to know the truth.  The Convention also included provisions for a Committee, before which families could present information and empowered that Committee to undertake action to find persons and to inform the General Assembly about situations, where the practice of enforced disappearances appeared to be systematic.

He also focused on the area of military justice, emphasizing that military courts did not have jurisdiction over serious violations of human rights.  Under international law, military tribunals could not be an integral part of the judicial system.

Turning to the situation of detainees held in Guantanamo Bay, he referred to the joint report, written with the Chairman Rapporteur of the Working Group on Arbitrary Detention; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on freedom of religion or belief; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.  Since that report had been presented before the Human Rights Council, in September, he noted the adoption, by the United States, of a law authorizing secret detention centres, harsh interrogation methods and military tribunals.

He also reviewed progress made, regarding judicial reform in Ecuador, recent developments at the International Criminal Court, concerns over the trial of Saddam Hussein and his collaborators in Iraq, and the efforts of the Extraordinary Chambers, in Cambodia, to try the top leaders of Khmer Rouge.  He noted that future plans included a visit to the Maldives, in November 2006, a visit to Cambodia, in early 2007, and a visit to Kenya, in February 2007.  He awaited positive replies from the Governments of Cambodia and Kenya to finalize arrangements, and also expressed his desire to visit Iran.

Discussion

In the discussion that followed, Mr. DESPOUY responded briefly to a number of questions and comments from delegations.  He thanked the representative of Egypt for correcting a point, made in his report, which stated that “in Egypt, under the law on counter-terrorism, military courts are competent to try civilians accused of terrorism.”

The representative of Egypt said that there were no military courts dealing with terrorism, but only state security courts, which were civilian courts.   Egypt did not deny the accused their legal rights.  His delegation, also, was in the process of enacting anti-terrorism legislation to substitute emergency laws.

Mr. DESPOUY took note of the information provided and said he would study the situation in-depth.

In response to a question from the representative of Chile on draft principles governing the administration of justice through military tribunals, Mr. Despouy noted that that was an initiative of the Sub-Commission on the Promotion and Protection of Human Rights, that later had been adopted by the Human Rights Council.  It was important that these draft principles would be adopted by the General Assembly.  Asked about ensuring human rights protections and the independence of the judiciary, during exceptional situations, such as States of Emergency, he said that was an issue he intended to address in more detail in the near future.  In practice, he had seen an erosion of guarantees for human rights, during such periods, with jurisprudence, in many cases, taken from the ordinary courts to special courts or military tribunals.

Mr. Despouy thanked the representative of Ecuador for noting the fruitful collaboration between the Special Rapporteur and the transitional Government.  He said that the crisis with the judiciary there had led to a political crisis, which in turn, had brought about the removal of the President himself. The transitional authorities, then, had introduced an initiative to set up a new Supreme Court, following his recommendations.  A unique experiment had taken place, in a country where the courts traditionally had been co-opted and now appeared set to become an example of best practices for the United Nations.

Responding to a question from the representative of Finland, on behalf of the European Union, on transitional justice, Mr. DESPOUY noted that the issue affected between 40 to 60 countries around the world.  The challenge was how to combat impunity when conflict was taking place, or where judicial institutions had been practically destroyed.  He said, however, that justice was one of the fundamental pillars, on which any transitional process must rest.  Asked about best practices and the interaction between truth commissions and the ordinary courts, he said the two bodies should not be seen as incompatible.  He noted that in his country, Argentina, the truth commission later provided important inputs to trials that brought about condemnation of the main perpetrators of human rights violations, under the military dictatorship.  He said there were many good examples to be found from experiences in Latin America and South Africa.

He thanked the representative of Argentina for raising a question about threats to lawyers and judges, noting that, sometimes, the threats could be direct or subtle, including economic or structural pressures.  That was an issue he would address in more detail in his next report.  He also appreciated the question, from the representative of Brazil, on the connection between poverty and access to justice, noting that there were many countries with independent courts that were only accessible to a handful of the population.  That was a crucial aspect in the administration of justice and one he hoped to turn to in the future.

He thanked the representative of Guinea-Bissau for his delegation’s support of the Convention on enforced disappearances.  In response to a question on country visits, he said he generally had been welcomed and sometimes had to choose between countries.

Mr. DESPOUY thanked the representative of Guatemala for clarifying a section in his report, which stated that “the legislature is currently considering a draft law providing for the establishment of in personam jurisdiction, whereby military courts would be competent to try all offences committed by military personnel, even those involving human rights violations.”  He was glad to hear that the initiative was not widely supported and unlikely to come before the full Congress.

In response to concerns raised, by the representative of Iraq, on the Special Rapporteur’s remarks on the trial of Saddam Hussein, he stressed that, despite reservations that conditions in the country would have a negative impact on the work of the tribunal, he also remained convinced that it was indispensable for Iraq and the world, that Saddam Hussein be judged, impartially and openly, for the crimes that he committed.  However, it was important that the tribunal acted in conformity with international standards, particularly so that the prosecution did not appear to be “victor’s justice.”

He noted the point made, by the representative of Japan, supporting capacity-building efforts to strengthen the work of the Extraordinary Chambers in Cambodia and thanked the representative of El Salvador for raising concerns about juvenile justice.  Finally, he responded to the representative of Cuba, who had raised concerns about the impact of anti-terrorism legislation, that seemed to promote arbitrary detention and certain practices that ran counter to international obligations, undertaken by Member States.  Mr. DESPOUY added that some anti-terrorism legislation not only affected the rights of detainees, but also affected other rights, such as the freedom to demonstrate and the freedom of expression.

* *** *

For information media • not an official record