Sixty-third General Assembly

Third Committee

24^th & 25^th Meetings (AM & PM)

THIRD COMMITTEE HEARS PRESENTATIONS FROM FIVE HUMAN RIGHTS COUNCIL RAPPORTEURS,

AS WIDE-RANGING TWO-WEEK HUMAN RIGHTS DEBATE CONTINUES

 

Address Issues of Violence against Women, Human Rights Defenders,

Independence of Judges and Lawyers, Extrajudicial Execution, Right to Education

Halfway through its two-week long discussion on the promotion and protection of human rights, the Third Committee (Social, Humanitarian and Cultural) today challenged five Special Rapporteurs -- experts with a mandate from the Human Rights Council to monitor and recommend solutions to specific human rights problems -- to outline ways to overcome difficulties in turning human rights norms into enforceable national law, in light of international disagreements over the use of military tribunals,the execution of juvenile offenders and other controversial issues.

In its dialogue with three Special Rapporteurs in the morning, on violence against women, the situation of human rights defenders and on the independence of judges and lawyers, respectively, and its dialogue with two Special Rapporteurs in the afternoon on extrajudicial, summary or arbitrary executions and on the right to education, delegates to the Committee were told repeatedly that country visits were an opportunity to put serious issues on the table and strengthen Governments’ capacity to handle those challenges.

Yakin Ertürk, Special Rapporteur on violence against women, whose most recent visits were to Algeria, Ghana and the Democratic Republic of Congo, said reliable data on human rights violations against women and girls was “grossly lacking”.  She stressed that States had a duty to monitor and investigate forced marriage and violence by intimate partners, which constituted common forms of violence against women.  The current view was slowly broadening to include crimes not traditionally studied, such as femicide, and ultimately, such data should be used to shed light on why such grave crimes were being committed on the female population.  For instance, the rape of women, common enough in peacetime, was particularly exaggerated during times of war.  Its root causes should be identified and dealt with.

Margaret Sekaggya, Special Rapporteur on the situation of human rights defenders, and who had recently visited Togo, noted that those defending human rights were themselves at risk.  Especially susceptible to human rights violations were defenders working on the rights of minorities, such as indigenous peoples and people of the lesbian, gay, bisexual and transgender community.  States were accountable for their safety, but because the Declaration on Human Rights Defenders was not a binding instrument, the monitoring procedures established by the Human Rights Council -- namely its Universal Periodic Review -- could play an important role in ensuring accountability.

In a similar way, improving monitoring procedures to eliminate impunity was a prominent theme in the statements delivered by Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, and of Philip Alston, Special Rapporteur on extrajudicial, summary or arbitrary executions.  Mr. Despouy attributed the problem of impunity to a weak judiciary caused in part by the scant remuneration of judges in some countries, saying it severely affected a judge’s ability to be impartial.  He said judges should have the right to adequate remuneration to protect them from political or economic pressures and he would make that issue a focus of his work.

In turn, Mr. Alston said the General Assembly should do more to uphold international human rights standards such as the prohibition against executing juvenile offenders.  He had received reports suggesting that at least 130 juvenile offenders were on death row in Iran, despite international conventions prohibiting such punishment for minors.  In addition, he raised the issue of reforming the criminal justice system in the United States to prevent the execution of innocent people.  Fundamental reforms were needed to the United States Military Commissions Act, so that trials of “alien unlawful enemy combatants” connected to that country’s war on terror complied with the right to a fair trial.

Finally, the Special Rapporteur on the right to education, Vernor Muñoz Villalobos, said States had the responsibility to come up with protection measures so that the right to obtain an education could be upheld in the case of war or other emergencies.  States, donors, and multilateral agencies should acknowledge the right to education as being a legitimate part of any humanitarian response and should consider increasing their education allocation to at least 4.2 per cent of total humanitarian assistance, up from the current level of 1.7 per cent.  In addition to addressing the issue of education in emergency situations, he also focused on inclusive education for people with disabilities and urged States to adopt the Convention on the Rights of Disabled Persons.  He also briefly touched on his visits to Botswana, Germany, Morocco, Malaysia, Bosnia and Herzegovina and Guatemala, and said he would soon travel to Senegal and Paraguay.

The Committee will meet again at 10 a.m. on Monday, 27 October, for a dialogue with the Chairperson of the Working Group on the Right to Development, the Special Rapporteur on the right to food and the Independent Expert on the effects of foreign debt and other related international financial obligation of States on the full enjoyment of human rights, particularly economic, social and cultural rights.

Background

The Third Committee (Social, Humanitarian and Cultural) met today to continue its wide-ranging discussion on the promotion and protection of human rights, and to engage in a dialogue with the Special Rapporteurs on violence against women, its causes and consequences; the situation of human rights defenders; the independence of judges and lawyers; on extrajudicial, summary or arbitrary executions; on the right to education.

Statement by Special Rapporteur on violence against women

YAKIN ERTÜRK, Special Rapporteur, said her report to the Human Rights Council was devoted to indicators on violence against women and State response.  Establishing indicators was a human rights obligation, since States must ensure that interventions designed to combat violence against women were based on accurate, empirical data.  She also stressed the importance of making the data understandable for non-specialist decision-makers, allowing for public scrutiny of interventions and enabling States to evaluate compliance with international obligations.  Reliable data in relation to human rights violations against women and girls was “grossly lacking”.  While there was no consensus on proposed indicators, current initiatives were striving to go beyond the traditionally narrow focus on intimate partner violence to addressing a wide range of other forms of violence against women.

In her report, she had proposed three types of indicators for measuring violence against women:  indicators on grave violence, on femicide and on social tolerance.  The first proposal would allow for major forms of violence found across countries to be recorded, such as rape, forced marriage or serious violence caused by intimate partners.  As for femicide, she said it was not captured by conventional research methodologies.  The third proposal, on “social tolerance”, pointed to a need to address factors that promoted or constrained violence, including the context in which it could continue unabated.  The objective should be to adopt reliable indicators that were internationally comparable and “context specific”.  She looked forward to collaborating with Governments and their partners to build on those proposals.

She said she had conducted official visits to Algeria, Ghana and the Democratic Republic of Congo, on which she made reports to the Human Rights Council in March.  She had yet to report on visits to Saudi Arabia, Tajikistan and Moldova, the last of which she had visited with the Special Rapporteur on torture.  But, press statements were published at the end of the visits.  She was expected to visit the Kyrgyz Republic in April 2009.

She explained that she consulted with civil society organizations often, and was encouraged to see that United Nations special procedures and the Human Rights Council were becoming increasingly engaged with civil society.  Some examples of consultations she had participated in included those with non-governmental organizations in St. Petersburg, Russia and in New Delhi, India.  She would soon attend an African regional consultation in Nairobi.

She said her next report to the Human Rights Council would focus on the political economy of women’s rights and its implications for violence against women.  She was particularly interested in studying the “tension” between women’s economic and social rights and the prevailing macroeconomic policy environment, as well as the problem posed by the apparent characterization of economic and social rights as aspirations, rather than as entitlements.

Since this dialogue would be the last for her in her capacity as Special Rapporteur, she ended by drawing attention to the main achievements of nearly 15 years of work on violence against women.  To start with, the mandate had enabled a regular, in-depth review and reporting on violence against women.  It had contributed to an increased understanding of, and dissemination of information on, international human rights norms and standards pertaining to women.  Both she and her predecessor had underlined the importance of State duty and due diligence to prevent, investigate and prosecute all acts of violence, and offer protection, remedies and reparations to victims.  The mandate had allowed for frameworks to be developed and proposed on legislation on domestic violence, and on how to develop and use indicators in policy-making.  The mandate had also contributed to greater clarity on the root causes and consequences of violence.

She noted that her report on the intersection of violence against women with HIV/AIDS had demonstrated how women’s susceptibility to HIV was exacerbated by unequal power between women and men, and the use of violence to sustain that imbalance.  Indeed, the mandate had contributed to the understanding that violence against women should be addressed as part of States’ efforts to ensure gender equality and women’s empowerment.  That marked a “paradigm shift” in the way violence against women had been perceived, moving away from a narrow victimization approach to one of empowerment, and from one stemming from humanitarian concerns to one focusing on realizing the full range of women’s human rights.

Recognizing violence against women as a human rights issue had had a transformative impact on furthering norms inherent in the Universal Declaration of Human Rights, particularly in expanding human rights beyond conventional understandings of violations perpetuated mainly by State actors in the public sphere.  It heralded the inclusion of actions by private individuals in the doctrine of State responsibility and introduced new types of crimes, such as domestic violence, marital rape and other such crimes.  A study conducted in partnership with the United Nations Population Fund (UNFPA) on the further potential of the mandate would soon be made public.  She added that, in order to enhance the effectiveness of the mandate, its work must be complemented with sustainable funding.

Questions and Answers

In a dialogue with the Special Rapporteur, following her remarks, the representative of Chile asked Ms. Ertürk, in regards to women’s participation in peacekeeping, what level of participation women should have at high-level meetings on those issues and what, in her opinion, was the most important element of Security Council resolution 1820 (2008).  She also asked whether there were any statistics available regarding femicide worldwide.

Also on the subject of statistics, the representative of France, speaking on behalf of the European Union, asked whether there were new forms of data-collection that could be of particular use in building cooperation in data collection.

Lebanon’s delegate asked whether the Special Rapporteur considered poverty as a form of violence against women or, at least, as a root cause of violence.

The representative of Canada asked the Special Rapporteur for her assessment of the development of internationally accepted indicators on violence against women and, looking ahead, what priority areas needed more international attention.

Brazil’s delegate asked how countries could contribute to the Rapporteur’s next thematic report to the Human Rights Council.

The representative of New Zealand invited Ms. Ertürk to comment on the situation of women with disabilities.

While welcoming the establishment of a new United Nations database on violence against women, the delegate from the United Kingdom asked whether there was room for improvement in terms of building a more effective response from the United Nations system.

The representative of Norway, commenting on the report, supported its call for sustainable funding for research and the establishment of widely-accepted norms and standards for reporting on violence against women.

Cameroon’s delegate added to the Special Rapporteur’s comments on the need for States to promote gender equality and suggested that women’s empowerment should be included, as well.  She also asked what role the overall environment that women lived in should play when discussing violence against women.

In response, Ms. ERTÜRK said Security Council resolution 1820 would allow missions to be carried out in conflict and post-conflict countries, which she viewed as important since conflicts made the situation worse for women in terms of the violence they faced.  She had one concern regarding Security Council resolution 1820, which also applied to Security Council resolution 1325:  there was a risk of interpreting quantitative improvements as the sole measure of success in combating violence against women.  In fact, it was also important to examine the root causes of violence against women.  For instance, sexual violence during times of war should not be considered in isolation from other forms of violence against women, since such violence took place in peacetime as well; it was only that the occurrence of such acts became exaggerated in times of conflict.  She pointed out the urgent need for mechanisms to protect women human rights defenders, who often became targets of individuals running the war itself.  She had received plenty of information from such women regarding their plight, and she noted that it took “far too long” for the international community to respond to their pleas for assistance.  It was hoped that resolution 1820 would deal with the impunity problem that prevailed in such situations.

She went on to address statistics, remarking that data on femicide was the easiest to collect.  But, more importantly, homicide data must be recorded in a sex-aggregated manner, identifying the sex of victims as well as perpetrators for example, so that the data could tell more of the story and thus truly constitute “reliable data”.  The General Assembly had mandated the Statistical Commission to work on violence against women issues, and she was currently engaging the Chair to advance that endeavour.  Expertise in the field of women’s violence statistics must be sufficiently represented at the Commission, if it was to succeed in that endeavour.  She said a report had been written on the initiative on indicators.

Turning to the question of poverty, she said unless women had full economic independence, they would continue to be trapped in situations that prevented them from enjoying their full range of rights, including civil and political rights.  She acknowledged the progress achieved in her field so far, noting that standards were now in place.  But, violence continued, both in peacetime and wartime.  Her predecessor had defined the first ten years of the mandate as a “standard setting period”, and her own focus had been to operationalize the standards.  In doing so, she had tried to define what it meant for civil society and States to be diligent in fighting violence against women.  Future priorities would be presented in her report on the assessment of the mandate.  Her successor was likely to bring new direction to that mandate, as well.

Some institutional arrangements within the United Nations system needed improving before it could better respond in the fight on violence against women.  Work was being conducted in a fragmented manner.  Noting that the Special Rapporteur must have stronger engagement with the Commission on the Status of Women, she said she was happy to be reporting to that Commission next year.  She was not involved with the Secretary-General’s campaign on violence against women, and she would try to make sure that the Special Rapporteurs coordinate their efforts with that of the Secretary-General.

She said the mandate was a powerful tool, but the independent experts had little support to conduct follow-up activities.  She invited Member States to consider ways to create sustainable funding sources for the special procedures mechanisms.  She had been exploring solutions to the problem with her United Nations colleagues, and she was happy to share her thoughts with delegates individually, if asked.

She said ideas from Member States were welcome, in terms of the reports she made each year.  On the subject of disabled persons, she said more specific types of vulnerable women were sure to be examined in future, although she placed great importance on discovering places of intersection, as opposed to taking a more fragmented approach to her work.

Statement by the Special Rapporteur on the situation of human rights defenders

MARGARET SEKAGGYA, Special Rapporteur, presenting her first report to the Committee following her appointment in March, said that a thorough analysis of general trends and challenges affecting human rights defenders was essential to fully understand the context in which those defenders operated and, therefore, to better protect them.  Reinforcing scrutiny on defenders exposed to specific forms of violations and attacks was a priority in her work, particularly in regard to issues facing women human rights defenders, who were often targeted by forms of prejudice, exclusion and repudiation by the social and political establishment.  Defenders working on economic, social and cultural rights, as well as defenders working on the rights of minorities, indigenous peoples, and lesbian, gay, bisexual and transgender people were also often at greater risk.  Those more vulnerable groups of defenders needed specific and enhanced protection and deliberate efforts to ensure that the environment in which they operated was more enabling, accepting, and safer.

She expressed her intention to continue the analysis of the challenges and obstacles that defenders faced in enjoying the rights to core freedoms of association and peaceful assembly, as set forth in the Declaration on Human Rights Defenders.  Such efforts would be aimed at formulating recommendations to overcome those challenges and remove those obstacles.  To strengthen the protection aspect of her mandate, she would engage in processes and initiatives aimed at promoting the development of strategies, programmes, institutions and mechanisms for the protection of defenders under threat.  In particular, she would work to devise an early-warning mechanism to help anticipate systematic threats against defenders by activating appropriate sectors of the national protection system.

In an effort to strengthen collaboration with regional mechanisms, she said she had developed relationships with various regional groups and had already undertaken a joint visit to Togo with her counterpart at the African Commission on Human and Peoples’ Rights.  Turning to the Declaration on Human Rights Defenders, she said, ten years after its adoption, the rights and obligations set forth in it were not sufficiently understood by those who bore the main responsibilities for its implementation.  Therefore, further engagement in activities on the dissemination of the Declaration and facilitating understanding of the document would also be part of her work.

While the protection function of her mandate would be the main element of her work, she said she was also keen on studying, sharing and reporting on good practices on human rights defenders.  More awareness of good practices would encourage replication and would also contribute to improved implementation of the Declaration.  The Universal Periodic Review was a mechanism of strategic value in reviewing, and potentially improving, the situation of human rights defenders in countries under review.  As the Declaration on Human Rights Defenders was not a binding instrument and, therefore, did not have a reporting mechanism, the role the Universal Review could play in monitoring implementation was even greater.  In closing, she referred delegates to 10 key messages on human rights defenders, annexed to her report, in the hope that it would inspire them in their future work.

Questions and Answers

In a first round of questions, the representative of Ghana asked the Special Rapporteur to comment on the gaps in implementation of the Declaration on Human Rights Defenders, and what mechanisms, other than the Universal Periodic Review, could monitor the implementation of that Declaration.  She also asked how States could best use the 10 key messages annexed to her report and how they could work more cooperatively with other States and the United Nations system.

France’s delegate, speaking on behalf of the European Union, also touched on the role the Universal Periodic Review in monitoring implementation of the Declaration.  He also asked what the specific factors were that hindered human rights defenders’ expression of their right to peaceful assembly and freedom of expression, as well as a question on what could be done to further protect the most vulnerable groups of defenders.

The representative of Canada asked how it would be possible to ensure that the situation of human rights defenders would be duly taken into account in the Universal Periodic Review process.  The representative of the Russian Federation, asking a similar question, enquired as to whether the treaty body system could play a role, as well.  He also asked about the emphasis the Special Rapporteur had placed on the defenders of sexual minority groups, specifically lesbian, gay, bisexual and transgender peoples, and whether simply belonging to a sexual minority group was a sufficient basis for a person to be included as a human rights defenders.

In a similar vein, Thailand’s delegate asked whether there existed a specific definition of what, or who, a human rights defender was, since the Declaration did not include such a definition.

The representative of the United States asked whether the Special Rapporteur had requested a visit to specific countries where acts of abuse against human rights reporters were regularly reported, such as Cuba and Myanmar.  She further asked what could be done to most effectively deal with the situations in such countries.

The Special Rapporteur, in response to questions regarding the implementation of the Declaration, said that attacks against defenders continued to exist worldwide, along with restrictions on freedom of expression and movement.  Providing non-cumbersome registration procedures for human rights defenders, the right to appeal, allowing assemblies to take place on an act on notification rather than an authorization, providing adequate protections, granting visas for travel for defenders in trouble, and removing laws on libel and sedition in national legislation, were all best practices that could be used by States.  Giving direct financial assistance by Governments to defenders was also useful, as was the inclusion of civil society in decision-making processes.

Responding to numerous questions on the Universal Periodic Review mechanism, she expressed her hope that, in the future, State reports would include a section on human rights defenders to be used as a benchmark in measuring progress.  As well, defenders should be invited to participate in Human Rights Council debates when State reports were presented.  On whether treaty bodies could play a role as well, she said that the Universal Review was a comprehensive mechanism, whereas the treaty bodies focused more specifically on thematic issues.  Thus, for now, it might be more useful to target human rights defenders within the Universal Periodic Review system.

In terms of how best to improve cooperation among States and between States and the United Nations system, she urged all parties to share best practices and information, follow-up on communications by the Special Rapporteur, facilitate country visits, and consider conducting joint visits.  Such efforts would also help avoid duplication, where similar work was repeated by national, regional and international mechanisms.

Regarding the trends and patterns of attacks against defenders, specifically in regards to the freedom of expression and right to assembly, she noted that more attacks occurred during and after elections, and were mainly perpetuated by security agencies.  Defenders working on certain issues -- those mentioned in her presentation -- were more often attacked, and not only by security agencies, but also by Governments and the general public.  Impunity was also still an issue.  De-registration of defenders, restrictions on movements and raids on their offices and homes often left defenders exposed and vulnerable and further limited their right to assembly and freedom of expression.

Responding to the question by the representative of Ghana, she said the 10 key messages in her report should be used to “drive a message” to the population and should be used by all State entities, especially security agencies.  She added she had requested visits to many countries, since there were many States in which human rights defenders were at risk and it would be important to visit them all.

Regarding the definition of the term “human rights defender” she said that, though the definition was not included in the Declaration, it had been defined by her predecessor.  “It’s the work that you do that defines you as a human rights defender, not the process, not the procedure, but the work,” she explained.

In response to the question posed by the Russian Federation on sexual minorities, she said that the Declaration talked about justice and dignity for all persons who suffered from threats, abuse and harassment.  As such, she would continue to protect defenders of sexual minorities, since all persons had the right to be protected.

Continuing with the question and answer session with the Special Rapporteur, the representatives of Norway and New Zealand noted that the Declaration on the Rights of Human Rights Defenders did not have a reporting mechanism, and asked to hear more on whether States should include the situation of human rights defenders in the universal review process and follow-up.  Norway’s delegate further asked whether the Rapporteur had received any response on her requests for country visits, while the representative of New Zealand further asked what countries might do more to support the rights of human rights defenders, in general.

The United Kingdom’s delegate asked how the Rapporteur’s plans to work with Governments to deliver a more accepting environment for human rights defenders could be applied to repressive States, such as Zimbabwe.  That included dealing with challenges faced by non-governmental organizations protecting the rights of minorities, such as indigenous peoples and the lesbian, gay, bisexual, transgender community.

To that, Cuba’s delegate added that the Rapporteur should not forget that the Rapporteur’s mandate covered promoting the duties of individuals, groups and institutions that promote and protect human rights.  That implied that the Rapporteur must pay attention to the legal duties of States and respect for due process, among other things.  Further, the content of the mandate was on the comprehensive promotion of the rights of human rights defenders.  The consensus resolution of last year on that subject had referred to the need to strengthen peace, development and dialogue in the pursuit of human rights defenders’ rights.  In addition, the idea that the Rapporteur was created to protect human rights defenders was incorrect; the idea behind the mandate was to promote those rights, so States could do the protecting.  Finally, how did the Rapporteur propose to work with other specialized mechanisms, such as the Special Rapporteur on the use of mercenaries?  So-called human rights defenders in Cuba were known to have received money from the United States interest section in Cuba, which she would be happy to tell the Rapporteur more about.  That would seem to indicate that those individuals were less “human rights defenders” and more “mercenaries” of the United States.  Also, what was her involvement with associations working to defend the economic and social rights of peoples?

The representative of the Observer Mission of Palestine turned the Rapporteur’s attention to journalists who were attacked in the Occupied Palestinian Territories and asked what countries should do to prevent those attacks, since the Israeli Government was not doing enough to stop Israeli settlers from perpetrating such attacks.

Myanmar’s representative asked the Chair to remind delegates to use the correct name for his country, which was duly done by the Acting Chair, who had taken over the running of the meeting.

Iran’s representative stressed the need to discuss the definition of actors who had come to be known as “human rights defenders”.  At the seventh session of the Human Rights Council, there had been tremendous effort on the part of countries who had wished to see a non-ambiguous definition included in the resolution that covered her mandate, but that definition was not included in the end.  He asked whether the Rapporteur had made any effort towards arriving at a definition, since she was the most pertinent individual within the United Nations to deal with that need.  There was no outstanding characteristic to distinguish a human rights defender from non-governmental organizations or activists, for example.  There was also the issue of assistance given to human rights defenders from unknown sources from beyond the State structure, which he asked the Rapporteur to address.  He next asked her to reconsider her decision to treat the defenders of the rights of the lesbian, gay, bi-sexual, transgender community on par with the defenders of the rights of minorities.

The Special Rapporteur answered by saying that she understood the Declaration to stress the importance of adopting peaceful means of defending anybody’s rights, and had placed obligations on defenders of human rights to conduct their activities without disrupting the status quo.  In addition, her predecessor had tried to define “human rights defenders”, and she would continue to look into the matter.  She looked forward to a constructive dialogue with States on the issue.  She said she understood that her task was to facilitate the promotion of the rights of human rights defenders, and not to protect those rights.

Statement by the Special Rapporteur on the independence of judges and lawyers

LEANDRO DESPOUY, Special Rapporteur, introducing his report on the independence of judges and lawyers, described briefly the activities he had conducted over the reporting period, including more than 100 interventions, and country missions to the Democratic Republic of the Congo and the Russian Federation.  He was waiting for a response to letters that had been sent to 20 countries for country visits.  Among the upcoming country missions planned was a visit to Guatemala in January 2009.  He noted that a request for a visit to Fiji had been sent in 2006 and had been repeated over subsequent years.  However, there still had not been a positive response to those requests.  He reminded all Governments that country visits allowed Special Rapporteurs to speak with all stakeholders and could result in significant improvements, as had been the case following the Special Rapporteur’s visit to Ecuador.

Turning to the protection of human rights under states of exception, he said that states of exception should be granted, as the title stated, in the most exceptional circumstances, such as in response to an emergency.  As well, they should be non-discriminatory in their application, temporary, and be compatible with other international obligations, such as international humanitarian law.  There was a need to give the question of the protection of human rights during those situations greater attention.  An international instrument that would comprise, in a single body, the overall standards to be applied in states of exception would be very worthwhile, as it would help to guarantee due process in those situations and would help to avoid parallel systems created by States in response to national security issues, to fight terrorism or for immigration control.

Continuing on the subject of due process in the fight against terrorism, he referred to the report of the Special Rapporteur on human rights while countering terrorism as complementary to his own.  Legislation that violated fundamental human rights must be restricted and the role of the judiciary in safeguarding due process must be promoted.  Often, terrorist suspects were denied due process, despite the fact that the right to a fair trial had been recognized by numerous international treaties and laws.  He added that those treaties still needed to be implemented, even when States worked outside of their own borders.

Scant remuneration of judges and the removal of salaries as a result of judicial acts were issues of great concern, since they severely affected a judge’s ability to be impartial, he said.  Judges should have the right to adequate remuneration to protect them from political or economic pressures and he would make that issue a focus of his work.

Touching on a number of issues briefly, in an effort to leave more time for dialogue with Member States, he encouraged States to ratify the International Convention against Enforced Disappearance, since it was a valuable international instrument that should come into force as quickly as possible.  In Iraq, he said the continued application of the death penalty was a severe violation of human rights and it was a cause for concern that executions were still being confirmed by courts.  He addressed the International Criminal Court situations in the Democratic Republic of the Congo, Uganda and Sudan.  In regards to the situation in Darfur, he said it was necessary to put an end to impunity in the region, referring specifically to the outstanding arrest warrant for Ahmed Harun.  He added that it would also be necessary to evaluate the capacity of the national judicial system to end impunity.

Questions and Answers

All speakers welcomed the Rapporteur and voiced support for his work, while thanking him for his report.

The representative of Maldives did not ask a question, but took the floor to thank the Rapporteur for his positive mention of the Maldives and acknowledged that, to succeed with its national reform agenda, the country must cooperate with United Nations special procedures.  The new Constitution had incorporated the Rapporteur’s recommendations to strengthen the independence of the national judiciary, through the establishment of bodies such as a Supreme Court, for example.  An interim Supreme Court had already handed down rulings regarding the upcoming elections.  Further, the country had adopted new laws on legal aid, adopted guidelines on sexual offenders, established a national bar association and was engaged in training on human rights norms, among other things.

The representative of Switzerland asked to hear more about transitional justice in the framework of the Rapporteur’s mandate.

Brazil’s representative, addressing the issue of due process, asked whether the Rapporteur considered it a universally accepted principle of international law.  Related to that, the representative of Cuba asked the Rapporteur to elaborate more on due process and terrorism, specifically the right to a fair trial for alleged perpetrators of terrorism.  He asked to hear more about situations in connection with the United States and other parts of the Americas that had called for the Rapporteur’s attention.

The representative of the United States said it was essential for countries to uphold their obligations under international law, although he did not agree with all the Rapporteur’s assertions regarding international law and international customary law.  He agreed with the assertion that States under national emergency should not use such emergencies as an excuse to abuse their citizens and curtail the independence of the judiciary.  But, it was not necessary to begin work on a new normative document on state of emergency.  Further, he asked the Rapporteur if he had seen a correlation between the independence of judges and their remuneration.  Later, the representative of France, speaking on behalf of the European Union, asked what could be done if the principles concerning remuneration of judges were abused.

Argentina’s representative asked the Rapporteur for his opinion on a declaration on enforced disappearance and whether such a declaration would help end that phenomenon.

The representative of Iraq said the new government in his country was ready to cooperate with United Nations to rebuild State institutions, and voiced hope that the Rapporteur would continue offering his support to that end.

The representative of Sudan, addressing points raised by the Rapporteur regarding Darfur, reminded him that matters appearing before the International Criminal Court did not fall under his mandate.  He had no mandate to speak on the Court.  Furthermore, Sudan was not a party to the Rome Statute, by which the International Criminal Court was established.  He affirmed the independence of the judiciary in Sudan, and added that efforts to portray the situation as otherwise were simply part of the strategy on the part of some to undermine peace in that country.  Later, the representative of the Netherlands asked the Rapporteur to elaborate on cases taken up by the International Criminal Court, which he described as an international mechanism to combat impunity.

The representative of Fiji informed the Committee that the Rapporteur’s request to visit the country had been approved for November.  Referring to the assertion that the international bar association had not been allowed to visit Fiji, he asked if there were any more organizations that the country needed to be aware of, in order to facilitate the Rapporteur’s mandate.

The Special Rapporteur, after thanking the representative of Maldives for the statements made, said that the level of cooperation that country had shown could serve as an interesting example of the constructive dynamic that could be built between the United Nations and States.  As a result of his visit to that country, there had been a number of important improvements that proved the worth of country visits by Special Rapporteurs.  Before ending his mandate, he said he would ask all the countries he had visited to reflect on whether there had been fruitful outcomes as a result of those visits.  To that end, he thanked the representative of Fiji for his response and said, if possible, he would visit that country at the end of November.

On the issue of transitional justice, he said that more than 40 countries were currently in “transition situations”.  Those situations often arose as a result of a division between departments or State powers, after an armed conflict, or when a State power fell apart due to the precariousness of their institutions.  The reconstruction of the judiciary in such situations was of the utmost importance, not only for the State but also to underscore the solidity and consistency of the transition process.  The suggestion made by the representative of Switzerland was therefore of transcendental import, since it would allow various actors to channel their efforts and resources.

In response to Brazil’s delegate, he said that there was no doubt that due process was an imperative principle of contemporary international law.  In terms of due process in states of exception, he said that states of exception were governed by rules and standards and any limiting factors to those rules should have an acceptable juridical goal.  Further, restrictions could not have the objective of legitimizing a government’s hold on power and, during states of exception, given rules and principles comprised in international law to protect human rights in those situations must still be implemented.  In that manner, it would be possible to prevent situations in which military dictatorships used states of exception to violate human rights.

In regards to remuneration for judges, there were many mechanisms used to exert control on the judiciary, and limiting or refusing salaries to judges was one example.  The Special Rapporteur would continue to address that “weapon” in forthcoming reports.  Responding to Argentina on the Convention on Enforced Disappearance, he said that convention would be very important and have a strong preventative effect.

He thanked the delegate from Iraq for expressing his Government’s readiness to work with United Nations and said he would hope to visit the country in the near future.

With respect to the comments made by the representative of Sudan, he said that his predecessor had also addressed the International Criminal Court in his report and he would continue that tradition and devote attention to the work of the Court.  That Court was an instrument in the fight against impunity when countries could not or would not judge crimes against humanity themselves.  Addressing efforts to end impunity in the reports of the Special Rapporteur had not been questioned since the establishment of the mandate.  He also reminded the delegate from Sudan that he had expressed his hope that the Government of Sudan would be able to implement the necessary national mechanisms to itself judge the crimes committed in Darfur.

Turning to the comments made by the delegate from the United States, he said that issues of jurisdiction regarding Guantanamo had been included in the report, as was the important Supreme Court decision that insisted on habeus corpus for those detained and the specific situation of five Cuban prisoners who had been tried in Miami.  He also noted that many countries dealt with similar issues and many of those situations were included in his reports.

Concluding his answers, he reminded the Committee that 2008 marked the sixtieth anniversary of the Universal Declaration of Human Rights, which should be considered a “universal constitution” that was binding on all States.

Taking the floor once more, the representative of Sudan said that his delegation was not satisfied with the hasty and incomplete answer given by the Special Rapporteur to his question.  As well, the brief answer he offered led his delegation to understand that the Special Rapporteur was talking to the Committee on behalf of the International Criminal Court, despite the fact that the Court was independent of his work.  A competent national judicial system was dealing with crimes committed in Darfur and the Rapporteur should not politicize his mandate by including it in his report.  Such an inclusion minimized his credibility and was unacceptable, since it was politicized and had nothing to do with the mandate of the Special Rapporteur.

The delegate from Rwanda asked the Rapporteur for his thoughts in regards to the international jurisdiction of his mandate in relation to national acts of racism and xenophobia.

In response to the follow-up comments made by the representative of Sudan, the Special Rapporteur said his mandate had been created in 1994 with a number of objectives, including:  to protect judges, lawyers, and other justice professionals that might be subject to violence; to protect the independence of the judiciary, which later evolved into the protection of the judiciary as institutions; and to identify and follow up on all measures used to fight against impunity.  Indeed, that final goal was at the very origin of his mandate and, as such, he and his predecessors had been called upon to explain the measures and events that had taken place in the fight against impunity, which included the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, among others.  He underlined, once more, that he trusted that Sudan, through its own judiciary system, would carry through with efforts to deal with the crimes that had been committed.

Responding briefly to the representative of Rwanda, he said the function of his mandate to examine and criticize cases where the judiciary had not adequately performed its function in cases of racism and xenophobia needed more thought.  However, he pointed out that, in his report, he addressed a somewhat similar situation regarding immigrants who were victimized by a lack of justice.  The function of his mandate was to defend the judiciary branch, so that it, in turn, could work for all members of society, without exclusion.

Sudan’s delegate asked for his statements to be placed on the official record of the meeting and reiterated, once more, that the Special Rapporteur had violated and politicized his mandate.

Statement by the Special Rapporteur on extrajudicial, summary or arbitrary executions

PHILIP ALSTON, Special Rapporteur, said if there was a single leitmotif in relation to the struggle against extrajudicial executions, it would be the fight against impunity.  Prosecuting those responsible for extrajudicial executions was generally very difficult in the absence of witnesses.  In some countries, including one which the Rapporteur had visited, to come forward as a witness was, in a sense, an act of suicide.  If a witness protection programme was not in place, prosecution became difficult or impossible.  The General Assembly needed to underline the importance of those programmes and the United Nations, and other agencies, needed to assist States to design, establish and support effective programmes.  He pointed to examples of global best practices and innovative approaches to witness protection, included in his report.  The international community should provide the necessary resources to implement those best practices and, among other measures, the Office of the United Nations High Commissioner for Human Rights should develop policy tools to encourage and facilitate greater attention to the issue.

Ensuring that military justice systems were compatible with human rights standards was equally important, he said.  When extrajudicial executions were committed by military personnel, it was usually the national military justice system that was tasked with investigating, prosecuting and punishing the perpetrator.  However, the track record of those systems was weak and serious concerns remained today in relation to many countries.  However, there were a growing number of countries that had recently adopted far-reaching reforms designed to ensure that military justice systems were consistent with international human rights standards.  Governments should periodically review their military justice systems in light of human rights norms and trends in State practice and the General Assembly should call on all States to report on their compliance.

Earlier in the year, he said he had drawn the attention of the Human Rights Council to the potential importance and possible shortcomings of commissions of inquiry as a national-level response to extrajudicial killings.  He noted the shortcomings of the independent commission established in Guinea that was supposed to investigate the killing of 130 unarmed protesters in 2007.  A more positive example was the Kenyan Commission of Inquiry into Post-Election Violence, which had produced a comprehensive report on the extrajudicial executions and a detailed set of recommendations.

He reminded the Committee that, in previous reports, he had called on the General Assembly do more to uphold the prohibition against executing juvenile offenders.  However, the General Assembly had not acted and executions continued apace.  Reliable reports suggested that at least 130 juvenile offenders were on death row in Iran.  In 2008, the Special Rapporteur sent 20 communications to the Government of Iran in relation to those cases.  Though the Government had informed him that measures had been taken to decrease the number of death sentences, the fact that some deaths of juveniles may be ongoing was a flagrant violation of the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.  He also noted that the Government of Iran had not facilitated a visit by the Special Rapporteur.

Since his last report, the Rapporteur had conducted four country visits which he described briefly.  In Brazil, he noted that the police were responsible for a significant proportion of the very high number of homicides each year and were, in many cases, never held accountable for those crimes.  In the Central African Republic, Government forces had, until mid-2007, carried out scorched earth tactics in the north and had killed hundreds of civilians.  Killings by police were also commonplace at the time of his visit though, since then, there had been slow but encouraging steps towards much-needed security sector reform.

The Rapporteur said his visit to Afghanistan in May 2008 had shown that civilians were being assailed from all sides:  killed in Taliban attacks, in air-strikes by international forces, shot by military convoys or during raids, and extorted or killed by Afghan police.  The level of complacency in response to those killings was staggeringly high and the international military forces needed to “get serious” about measures to promote accountability and transparency in response to the alleged killing of civilians.  In particular, the North Atlantic Treaty Organization (NATO) should adopt a new policy to demonstrate a genuine commitment to reduce civilian casualties.

Significant reforms were urgently needed to address the criminal justice system in the United States to prevent the execution of innocent people, he said.  Fundamental reforms were also needed to the Military Commissions Act, so that trials of “alien unlawful enemy combatants” complied with basic due process rights.  In addition, reforms were needed to reduce deaths in immigration detention facilities and it would be necessary to conduct open investigations into the deaths of detainees at Guantanamo Bay.

Questions and Answers

The representative of the Observer Mission of Palestine thanked the Rapporteur for his report, and added that the Israeli occupation had been using extrajudicial executions for many years, including on children.  During a protest against the building of the separation wall, for example, there were known cases of young adults being shot in the face.

The representative of France referred to the Rapporteur’s comments on the lack of support for witness protection programmes, and asked what arguments could be used to increase political support for them.

Brazil’s representative discussed efforts by his country to improve public security, including through a national programme on public security, and the need to produce systematic data about violence.  He thanked the Rapporteur for having engaged with the Brazilian Government in carrying out those activities.

The representative of the United States said he did not agree with all the Rapporteur’s assertions regarding international law, but nevertheless appreciated his efforts to spotlight the issue of extrajudicial and summary and arbitrary killings.  He expressed interest in the Rapporteur’s comment regarding the death penalty not being in violation of international law per se, and expressed agreement with him on that issue.  He also agreed with the statement that the Taliban had been responsible for a majority of the violence in that country.  He voiced appreciation for the Rapporteur’s report of last year, which had touched on Darfur.  What could be done by United Nations to stop extrajudicial killings there?

Canada’s delegate agreed on the importance of witness protection in ending impunity successfully, and that it should be integrated in the entire criminal justice process of all nations.  She asked the Rapporteur to describe the level of political will he sensed from States on that issue, and whether the Office of the United Nations High Commissioner for Human Rights (OHCHR) should be involved in that exercise and in which States?  How would that be decided?

The representative of Malaysia remarked that it might be unwise to put forward new recommendations when recommendations in the past had been neglected.  Now that the universal periodic review process was underway, was there better compliance on the part of States?

The representative of Colombia pointed out that a paragraph in the Rapporteur’s report regarding Colombia contained examples of events that took place in 2001 in that country, but which also “referred to other countries”.

The representative of Sudan said the judiciary in his country was competent and acted with integrity in Darfur during 2003, and it was not a matter to be questioned.  He asked the Rapporteur about his role in examining human rights violations in Afghanistan and Iraq, after the United States interference in those two countries.

Iran’s representative addressed references in the report to his country, which he said were unfounded and irrelevant.  He sought clarification regarding the Rapporteur’s claims based on “reliable sources”, which had not been named.  The Rapporteur had talked about a “number” of people that had been executed, and asked precisely what number, since it would be baseless to call an unknown number high or low.  He urged the Rapporteur to become more acquainted with Islamic jurisprudence regarding “qisas”.  Judgement should not be made about measures that had not had a chance to be implemented, he added, referring to a recent decree relating to child killings.  He asked for clarification on the criteria used to determine which countries were to fall under investigation, which he said amounted to a kind of discrimination.  He then asserted that the level of cooperation between Iran and the special procedures was higher than average, contrary to what the Rapporteur had intimated.

Responding to questions regarding the occupied Palestinian territories, Mr. ALSTON said that, though he had visited Lebanon and Israel, the understanding had been that he would not visit the occupied territories at that time, but instead at a later date.  However, despite repeated requests to the Government of Israel, that visit had not yet been realized.

In response to the questions posed by the representative of Malaysia and Brazil regarding the Universal Periodic Review, he called it an important instrument and, if it worked effectively, it would be a good support mechanism for the treaty bodies and special procedures.  However, the verdict was still out on the actual impact of the mechanism.

Turning then to questions on specific country situations, he responded to the question from the United States, saying he regretted the considerable increase in recent months of large-scale killings attributed to, or claimed by, the Taliban.  In regard to civilian casualties by international forces, there had been some improvements since his initial report on his Afghanistan visit came out, and recent media reports seemed to suggest that top generals in the United States military also recognized the need to address the issue.

In response to the representative of Sudan, he said that the outcome document by the Group of Experts sent to monitor the situation in Darfur had shown that there were major problems in Sudan that were not being addressed and further action was needed.  Since then, the Human Rights Council had disbanded that group and extrajudicial killings were ongoing.  In regards to the question on the International Criminal Court, he said if international action against extrajudicial killings was to be meaningful and effective, it must include the elimination of impunity.

Regarding the comments by the representative of Iran, he welcomed the opportunity to visit that country and assured the delegate that he had done his utmost to master the intricacies of Islamic law, though he would also welcome the opportunity to discuss, in person, those laws with relevant jurists on the ground.  In regards to the number of juveniles sentenced to death and still on death row, he welcomed the opportunity to clarify those statistics with the Government.  Though he was aware of the new decree that had been issued on that subject, he was not convinced that the decree would, in fact, lead to the elimination of the sentencing of juveniles to death.

He thanked the representative of Colombia for his clarification and the representative of Brazil for the information regarding the implementation of his recommendations.  He added that his visit to Brazil was a good example of how country visits could be beneficial both to the Rapporteurs and to Governments, which should see country visits as an opportunity to put serious issues on the table and strengthen Governments’ capacity to handle those challenges.

Responding to questions by the delegates of France and Canada on witness protection programmes, he said that witness protection was a neglected issue and often seen as a luxury by States.  However, if a State wanted to prosecute people, it generally could not be done without witnesses, so it would be necessary to put money into building those programmes.  In addition, there should be a Trust Fund in OHCHR to help States who truly wished to build such a programme.

Following up on the Rapporteur’s answer regarding the new decree in Iran, the representative of that country said that his delegation was as unconvinced about some of the facts in the Rapporteur’s report as the Rapporteur was of his Government’s new decree.  In addition, he pointed out that the decree was the continuation of ongoing national judicial reforms.  He also asked the Special Rapporteur to coordinate more fully and pay more attention to the outcomes of the Universal Periodic Review.

The representative of Guinea-Bissau asked how killings of civilians, or national authorities in the case of a military coup, could be defined in relation to extrajudicial, summary or arbitrary executions.

Sudan’s delegate, taking the floor once more, said his country was an open book and the national judiciary system was not in question, adding that other countries also had problems that needed to be dealt with, such as the Guantanamo facility.

Briefly in response to Iran, Mr. ALSTON repeated his earlier statement regarding the 20 communications he had sent to the Government and said, in terms of the new decree, if it was effective, he would be very pleased on behalf of the international community.  The test of its effectiveness would be if Iran could announce that no juveniles had been sentenced to death since the decree had been adopted.

In response to the question posed by Guinea-Bissau, he said he too had tried to define the terms “extrajudicial”, “summary” and “arbitrary” but any response he could find was unsatisfactory.  Unlawful killings might be a better term to use for such killings, since it was hard to distinguish between the various categories.

Responding to Sudan, he noted that its judicial system had been subject to criticism by various international organizations.  In regard to the delegate’s reference to other countries, he said the challenge was not to do better than other countries; the challenge was to deal with one’s own problems comprehensively and effectively.

Special Rapporteur on the right to education

VERNOR MUÑOZ VILLALOBOS, Special Rapporteur, recalled that the Human Rights Committee had created the mandate for a Special Rapporteur on the right to education in 1998, it was renewed in 2004 and renewed again last year for an additional three years.  His predecessor had devoted much time to building a conceptual framework to better understand that right, which he would continue to do.

He said that, in his first report, he discussed the need for free universal education and the importance of strengthening the gender perspective in education policies.  His next report focused on the right to education by girls, prompted by his interest in the Millennium Development Goals relating to gender parity and universal education, and on the felt need to underscore that the right to education was being threatened by “paternalistic” ways of thinking.  His report of 2007 had focused on inclusive education for people with disabilities, and had urged adoption of the Convention on the Right of Disabled Persons and provided recommendations for a transition from traditional education schemes to a more inclusive one.

He said he had conducted visits to Botswana, Germany, Morocco, Malaysia, Bosnia-Herzegovina and Guatemala, and would soon go to Senegal and Paraguay.  Country visits were intended to establish dialogue with governing authorities and relevant actors, and to provide a “critical” view for helping achieve that right.  His approach gave special attention to equality, non-discrimination and respect for diversity.

His most recent report to the Human Rights Council had focused on the right to education in emergency situations, such as armed conflict and natural disasters, he said.  In it, he had stressed the fact that education be considered as a form of humanitarian assistance in such situations.  While different countries had varying capacities to deal with crises, he nevertheless asserted that Governments should not be allowed to suspend State responsibility to guarantee the rights of their citizens.  States had the responsibility to come up with protection measures, in the case of war.  The international community seemed to tolerate the violation of the right to education in emergency situations, when in fact education was a human right and part of the human development process.

He said evidence had shown that the murder of students and teachers, and the bombing of schools, had increased sharply over the past four years.  The right to education was frequently denied during periods of early response and in the reconstruction process.  Overall, in 2004, 27 million young people and children affected by armed conflict had been deprived of a formal education.  That number was much higher in cases of people affected by natural disasters, which recurred in certain poor regions.  He opposed the tendency to view education as a tool, rather than intrinsic right.  At the same time, he was willing to concede that as a tool, education made it possible for children to develop “psycho-social” and cognitive abilities to preserve life.  School also softened the psycho-social impact of crises, by giving children a sense of comfort.

The international community had not yet translated the rights enshrined in the Convention on the Rights of the Child fully into policy, he added.  The Dakar Action Framework had assured all countries enough funding to realize the right to primary education, but a lack of commitment meant that education received scant financing.  In terms of humanitarian assistance, 1.7 per cent of the funds for emergency situations went to education, in 2007.

He said the right to education should be acknowledged by States, donors, and multilateral agencies as being a legitimate part of the humanitarian response.  States were encouraged to make contingency plans for situations of emergency, and donors were encouraged to include education in all humanitarian assistance programmes.

Questions and Answers

Speaking on behalf of the European Union, the representative of France asked the Rapporteur what his proposals were regarding the active participation of women in developing approaches to promoting the right to education, and what measures needed to be taken to remedy the problems facing the right to education in emergency situations, particularly in regard to gathering statistics.

The representative of Qatar asked what approach the United Nations should adopt to better implement the right to education in emergencies and encouraged the inclusion of emergency education at all levels, to better prepare citizens for potential crises.

Iran’s delegate asked the Rapporteur to explore the possibility of devising standard criteria for assessing the efforts of various countries on the right to education in emergency situations.  Iran had worked to ensure quality education, not only for its own citizens, but also for refugees fleeing crises in the region -- crises that also affected his own country from time to time.  Such efforts should be acknowledged by the Rapporteur in his reports and should be encouraged through the creation of standard measures, such as the one he suggested.  On a procedural issue, he asked the Secretariat for English copies of oral presentations by Special Rapporteurs and Independent Experts, when possible.  [The Secretary of the Committee took note of the request.]

The representative of Burundi asked what scientific criteria had been used to come up with the figure of 4.2 per cent of total humanitarian assistance that was called for in the Rapporteur’s report and asked what the levels were currently.  Nicaragua’s representative expressed her delegation’s support for increased levels of humanitarian assistance.

Responding to the question asked by the representative of France, the Special Rapporteur said that statistics regarding whether emergencies were natural or manmade were particularly crucial, in order to build the most effective response.  Iran’s suggestion to develop standard criteria to assess national situations would, therefore, be quite useful.  Currently, there was not enough statistical information available to provide a full picture of all the violations of the right to education in emergency situations worldwide.

Turning to the question posed by the representative of France on gender, he said that the issues of women and girls should be at the centre of all development strategies.  An educated woman was better able to avoid being caught in a violent situation and was more able to fight for the enjoyment of her rights.

The education factor should share equal importance in development strategies, he continued.  By developing the abilities and talents of people in emergency situations, a Government was preparing them to more effectively respond to the crisis at hand and any future crisis.  Thus, affected communities should be given the necessary economic resources to fulfil their right to education.

In terms of what a holistic approach might look like, he said any approach must first acknowledge the right to education in emergencies as a basic right, along with food, water, sanitation and shelter.  As well, the content of any education programme must include information, such as emergency education, to help them with the challenges that they might face.  Finally, a holistic approach required financing to help States that were unable to fund programmes themselves.  Donor countries should consider increasing financial assistance, while recipient nations should ensure that the money was managed properly and was translated into real achievements in education, he said.  Illiteracy was a scourge in its own right, but illiteracy in emergencies made those situations worse.  As such, it was necessary to work preventively and proactively to reduce illiteracy rates, especially among refugees and displaced persons.

Finally, turning to the question by the representative of Burundi, he said that an integrated group of experts had helped devise the 4.2 per cent figure, based on a “principle of progressivity”.  Currently, assistance allotments were around 1.7 percent, which was shameful and unacceptable.

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For information media • not an official record