UN Human Rights Treaties

UNITED NATIONS
E
Economic and Social
Council
Distr.
GENERAL
E/CN.4/Sub.2/1996/SR.28
7 January 1997
ENGLISH
Original: FRENCH
COMMISSION ON HUMAN RIGHTS
SUBCOMMISSION
ON PREVENTION OF DISCRIMINATION AND
PROTECTION OF MINORITIES
Fortyeighth
session
SUMMARY RECORD OF THE 28th MEETING
Held at the Palais des Nations, Geneva,
on Monday, 26 August 1996, at 10 a.m.
Chairman: Mr. EIDE
later: Mr. LINDGREN ALVES
CONTENTS
DISCRIMINATION AGAINST INDIGENOUS PEOPLES
THE ADMINISTRATION OF JUSTICE AND THE HUMAN RIGHTS OF DETAINEES:
(a) QUESTION OF HUMAN RIGHTS AND STATES OF EMERGENCY;
This record is subject to correction.
Corrections should be submitted in one of the working languages. They should
be set forth in a memorandum and also incorporated in a copy of the record. They
should be sent within one week of the date of this document to the Official Records
Editing Section, room E.4108, Palais des Nations, Geneva.
Any corrections to the records of the public meetings of the SubCommission
at this session will be consolidated in a single corrigendum, to be issued shortly
after the end of the session.
GE.9613802
(E)
E/CN.4/Sub.2/1996/SR.28
page 2
CONTENTS (continued)
(b) INDIVIDUALIZATION OF PROSECUTION AND PENALTIES, AND REPERCUSSIONS
OF VIOLATIONS OF HUMAN RIGHTS ON FAMILIES;
(c) INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY, JURORS AND
ASSESSORS AND THE INDEPENDENCE OF LAWYERS (continued)
E/CN.4/Sub.2/1996/SR.28
page 3
The meeting was called to order at 10.05 a.m.
DISCRIMINATION AGAINST INDIGENOUS PEOPLES (agenda item 14)
(E/CN.4/Sub.2/1996/21 and Corr.1, 22 and 23, E/CN.4/Sub.2/1996/NGO/15,
E/CN.4/Sub.2/1995/24)
1. Mrs. DAES (Chairman/Rapporteur, Working Group on Indigenous
Populations), introducing the report of the Working Group on its
fourteenth session (E/CN.4/Sub.2/1996/21), paid a tribute to
Mr. Alfonso Martínez, Mr. Boutkevitch and Mr. Guissé for their active
participation in the Group's work. A total of 721 persons had attended the
fourteenth session, representing 44 Governments, 12 specialized agencies
and 232 nations, communities and indigenous organizations, together with a
number of experts. Twentytwo
indigenous persons had been able to participate
with the assistance of the United Nations Voluntary Fund for Indigenous
Populations. She appealed to Governments to continue their contributions to
the Fund.
2. The main agenda item, the evolution of standards concerning the rights
of indigenous people, had included a subitem
entitled “Definition of the
concept of indigenous peoples”. In that connection she had prepared a
background paper on the question (E/CN.4/Sub.2/AC.4/1996/2). Most of the
participants had agreed with her that it was neither desirable nor necessary
to have a universal definition of indigenous people, at least for the present.
A single definition could not capture the diversity of indigenous peoples
worldwide. More importantly, the draft Declaration on the rights of
indigenous peoples should be designed to fulfil the needs of those groups
which all agreed, without question, were “indigenous”. The application of the
Declaration would evolve in practice, as had the United Nations Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities. Nevertheless, the Working Group had decided to
continue consideration of the concept of indigenous peoples at its following
session, and encouraged Governments, specialized agencies, indigenous peoples
and nongovernmental
organizations (NGOs) to send it their comments on that
essential question. The Working Group was available to assist the Working
Group of the Commission on Human Rights with any information or clarification
pertaining to the draft Declaration that it might need.
3. Under the agenda item entitled “Review of developments pertaining to the
promotion and protection of human rights and fundamental freedoms of
indigenous populations, the Working Group had considered the question of the
health of indigenous peoples, which was generally worse than that of the rest
of the population, and alarming in certain regions, especially with regard to
infant mortality, life expectancy and chronic illness. In that connection,
many indigenous representatives had stressed that the health of indigenous
people was closely linked to their ancestral lands. For example, loss of land
could lead to a devastating change in nutrition. Dispossession of land could
be regarded as an indirect threat to the lives of indigenous peoples. She
was, however, pleased to report that some Governments were working hard to
improve the health of indigenous peoples. She expressed appreciation to WHO
for its active participation in the deliberations on the question, which the
Working Group had decided to keep on the agenda for its fifteenth session.
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4. The agenda for the fifteenth session would also have a new subitem
entitled “Indigenous peoples: environment and land”. The Working Group would
be requesting relevant information from Governments, specialized agencies,
UNEP, other intergovernmental organizations, NGOs and indigenous peoples'
organizations. If the SubCommission
approved, she would submit a working
paper on indigenous land rights. The Working Group had also decided to
recommend to the SubCommission
that a study should be undertaken and a
special rapporteur appointed to conduct a comprehensive study on indigenous
land rights and the problems that existed in that regard.
5. The discussions on the permanent forum for indigenous people had been
constructive and should be of great assistance to the SecretaryGeneral's
review of existing mechanisms, procedures and programmes for indigenous
peoples, to be submitted to the fiftyfirst
session of the General Assembly.
Indigenous peoples and many States had expressed the view that the permanent
forum should be established at the highest possible level within the
United Nations system and should not be a replacement for the Working Group on
Indigenous Populations. She noted that the Government of Chile had offered to
host the second workshop on the possible establishment of a permanent forum.
6. The Working Group welcomed the comprehensive Programme of Activities of
the International Decade of the World's Indigenous People, and wished to
continue to cooperate with the Coordinator of the Decade, Mr. Fall, in the
realization of the Programme. For the Decade to be a success, there should be
more operational action and stronger political commitment by Governments,
closer cooperation between the specialized agencies and indigenous peoples,
and increased contributions by Governments and private entities to the
Voluntary Fund for the Decade.
7. The General Assembly had identified the adoption of the draft
United Nations Declaration on the rights of indigenous peoples and the further
development of international standards for the protection and promotion of the
human rights of indigenous peoples as the main objectives of the Decade.
8. Introducing her supplementary report on the protection of the heritage
of indigenous people (E/CN.4/Sub.2/1996/22), she said that five years had
elapsed since she had first been entrusted with the study by the
SubCommission.
Over that time, she had grown increasingly to share the
frustration of indigenous peoples at the erosion of their cultures and the
inaction of the international community. While indigenous languages continued
to decline and disappear in most countries and while indigenous lands were
also disappearing, particularly in countries which were privatizing their
economies, there was ironically
a
growing demand, especially in the West,
for indigenous art, crafts and, above all, traditional knowledge, medical and
ecological. That demand was accelerating the exploitation and destruction of
indigenous societies. The resulting injustice was fundamentally a legal
problem, because few countries respected the right of indigenous peoples to
withhold their cultural and scientific works from commercialization. Noting
that numerous United Nations bodies and agencies working to protect the
heritage of indigenous peoples had come into existence, she said that an
interagency
coordination mechanism must be established.
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9. With regard to the draft Principles and guidelines for the protection of
the heritage of indigenous people, which were contained in the annex to her
final report (E/CN.4/Sub.2/1995/26), she had received useful comments from all
the relevant bodies and organizations and from several Governments and
indigenous organizations. She had also had the privilege of participating in
several seminars, including one on cultural restoration held at the University
of Saskatchewan, Canada, whose programme of action had called, in particular,
for the speedy adoption of the abovementioned
draft Principles and
guidelines. She had been particularly struck by the statement in the preamble
to the programme of action that indigenous peoples had the responsibility to
restore, maintain and strengthen their civilizations and their humanity. That
statement stressed the responsibility, and not merely the rights of indigenous
peoples, their “civilizations”, a term referring less to tradition and more to
creativity than the term “culture”, and lastly their “humanity”. Being human
meant having an identity, being part of a civilization and, above all, having
responsibilities and therefore a function and meaning in life. Protecting the
heritage of indigenous peoples meant maintaining the meaningfulness of life
for those peoples and was more central than life itself.
10. She summarized the additional conclusions and recommendations contained
in her report. Overall, she had concluded that the guidelines she had
proposed for the protection of the heritage of indigenous peoples were
permitted and, to a large extent, required by recentlyadopted
international
instruments in the fields of trade and the environment. There was also an
urgent need to coordinate the complementary initiatives being taken by
international bodies in the fields of the environment, trade and human rights.
International environmental bodies were arriving at the same conclusion as
herself, namely that the legal rights of indigenous peoples to their
traditional knowledge were already recognized, at least in very general terms,
in international law, and were consistent with the new international trade
regime. The World Trade Organization had so indicated when it had adopted the
Agreement on TradeRelated
Intellectual Property Rights, in particular
articles 1, 8, 27 and 39.2. The real problem was not one of legal
incompatibility between her proposals and existing trade instruments, but a
lack of communication and coordination among the various international bodies
concerned with particular aspects of indigenous peoples' heritage. The
SubCommission
and the Centre for Human Rights could make an important
contribution in that respect.
11. Thanks to its channels for collaborating with indigenous peoples, the
SubCommission's
Working Group on Indigenous Populations might, for example,
provide assistance to the World Intellectual Property Organization in
organizing its planned international symposium on the preservation and legal
protection of folklore, and to UNESCO in preparing its planned biennial report
on the status of protection of indigenous peoples' heritage worldwide. She
hoped that UNESCO would organize meetings with indigenous educators,
scientists and artists to refine the methodology used to collect and evaluate
the information needed for future UNESCO reports. She would also like to see
the parties to the Convention on Biological Diversity give the Executive
Secretary adequate funding for research partnerships with indigenous peoples'
own educational and scientific institutions. In view of the experience gained
by the Working Group on Indigenous Populations over the past 15 years, a
member of the Group might, with the authorization of the Economic and Social
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Council, be entrusted with a continuing thematic rapporteurship on the
heritage of indigenous peoples, the primary task being to ensure coordinated
action with the full participation of indigenous peoples.
12. Mr. ALFONSO MARTINEZ, introducing his third progress report on the study
of treaties, agreements and other constructive arrangements between States and
indigenous populations (E/CN.4/Sub.2/1996/23), said that, because he had not
received the necessary assistance in time, he had had to base his analysis
essentially on data from 1993 and 1994. His final report, to be submitted
in 1997, would bring those data up to date. The third progress report
consisted of five chapters. Chapter I contained some general considerations
on how indigenous people had lost their sovereignty and gradually been
“domesticated”. In preparing the chapter, he had made a distinction between
Spanish and British colonization. Chapter II analysed the process of
“domestication” of indigenous peoples in North America and described the
legislative and legal measures connected with the process in the United States
and Canada, two countries whose policies on the subject had been completely
different. While the United States had put an end to the treaty policy it had
followed from the outset with the indigenous peoples, Canada had continued to
seek to negotiate and conclude agreements with them.
13. Chapters II and IV of the report dealt with the two variants of Spanish
colonialism. As examples of the first variant, found in Central America, he
had studied the very different cases of Nicaragua and Panama. The copious
information on Nicaragua he had obtained in April 1996 from an eminent
specialist on indigenous issues in Latin America, Mr. Augusto Willemsen Diaz,
would be taken into account in his final report. To illustrate the
second variant, which had been applied in the Southern Cone of Latin America,
he had studied the case of the Mapuche, who had been treated differently
according to whether they had been under Argentine or Chilean jurisdiction.
In chapter V, the last chapter, he had studied the “constructive arrangement”
concluded between Greenland and Denmark, and the “limitations” of the autonomy
agreement which had been illustrated by the 1968 explosion, on Thule air base,
of an American bomber carrying atomic bombs, an incident he had described at
the end of the report.
THE ADMINISTRATION OF JUSTICE AND THE HUMAN RIGHTS OF DETAINEES:
(a) QUESTION OF HUMAN RIGHTS AND STATES OF EMERGENCY;
(b) INDIVIDUALIZATION OF PROSECUTION AND PENALTIES, AND REPERCUSSIONS
OF VIOLATIONS OF HUMAN RIGHTS ON FAMILIES;
(c) INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY, JURORS AND
ASSESSORS AND THE INDEPENDENCE OF LAWYERS (agenda item 10)
(continued)
(E/CN.4/Sub.2/1996/1618,
19 and Corr.1; E/CN.4/Sub.2/1996/NGO/2, 4, 5, 11,
17, 26, 30 and 31)
14. Mr. SHIOKAWA (International Association of Democratic Lawyers) said that
the Japanese Government did not sincerely regret what it had done between 1925
and 1945 but was in fact seeking to justify it. During those 20 years,
E/CN.4/Sub.2/1996/SR.28
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hundreds of thousands of people had been arrested, under a law limiting
freedom of opinion, for opposing the policies promoted by the imperial regime
and calling for peace and human rights. Approximately 2,000 people had died
in prison, most under torture. An association had been established in 1968
calling for the Government to apologize and pay compensation to the victims.
That the Government had not done to date.
15. On another matter, the Japanese Government was seeking to suppress
references in textbooks to the crimes committed by the Japanese army, namely,
the widespread forcible prostitution of women. His organization welcomed the
fact that the Special Rapporteur on Violence against Women, Mrs. Coomaraswamy,
had stressed in her report (E/CN.4/1996/53/Add.1) the need for school
curricula to be changed in order to reflect historical reality. It asked the
SubCommission
to monitor the Japanese textbook screening system, which
represented a violation of freedom of expression and information.
16. Mrs. PARES (International Educational Development) said that legislation
in Mexico had considerably increased the powers of the Public Prosecutor's
Office, which was responsible both for investigating offences and for
conducting criminal proceedings, to the extent that judges were often reduced
to ratifying decisions taken by the Office. Owing to lack of resources and
competent personnel, the defence was often in a weak position in relation to
the prosecution. That was particularly true in the case of courtappointed
lawyers, whose independence was compromised because they were paid by the
courts.
17. The judiciary was also subjected to political pressure, as attested by
the February 1995 arrest of 20 or so presumed Zapatistas; their detention and
trial had involved various violations of the law which had been duly reported
by the National Human Rights Commission. Most of those detainees had been
tortured. Furthermore, they had been arrested without a warrant and had not
been defended by a lawyer of their choice, and those who had been found guilty
had been convicted on the basis of evidence that was inconsistent and in some
cases absurd, when not completely fabricated. There was no doubt that the
Government had used those socalled
trials to influence the negotiations with
the EZNL (Zapatista National Liberation Army).
18. To remedy that situation, there was an urgent need to guarantee the
independence, impartiality and effectiveness of the judiciary, to reform the
Public Prosecutor's Office in order to ensure that it functioned with due
respect for human rights and legal standards, to grant the national human
rights commissions full autonomy and the power to take binding decisions, and
to release the presumed Zapatistas immediately.
19. Mr. BHAT (International Islamic Federation of Student Organizations)
said that the entire territory of Jammu and Kashmir was a prison where the
Indian army, paramilitary forces and special task forces dishonoured, maimed,
tortured and murdered thousands of innocent people, with complete impunity,
under the emergency legislation applicable throughout the territory. For
example, the Armed Forces Special Powers Act of 1990 authorizd the army to
arrest anyone without a judicial warrant and, if necessary, kill anyone who
broke the law (sect. 4). It also provided that no prosecution could be
instituted against anyone who had acted in exercise of powers conferred by the
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Act (sect. 7). Many Kashmiris were being held without trial under the 1978
Jammu and Kashmir Public Safety Act, in contravention of the International
Covenant on Civil and Political Rights. In occupied Jammu and Kashmir,
neither judges nor lawyers were assured of their safety. Three prominent
lawyers, Mr. Jaleel Andrabi, Mr. Abdul Qadir Sailani and Mr. Mohammad Hussain,
and a human rights activist, Mr. Mohammad Subhan, had recently been killed.
20. In view of that situation, his organization urged the SubCommission
to
send a factfinding
mission to occupied Jammu and Kashmir and to request that
the war criminals who were torturing and killing thousands of innocent people
with complete impunity should be brought before an international tribunal.
21. Mrs. DEGENEF (Disabled People's International) said it was deeply
regrettable that neither the report on the question of the impunity of
perpetrators of violations of human rights (E/CN.4/Sub.2/1996/18) nor the
report containing the revised set of basic principles and guidelines on the
right to reparation of victims of gross violations of human rights and
humanitarian law (E/CN.4/Sub.2/1996/17) recognized violations of human rights
against disabled detainees. Since the adoption of the Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental
Health Care in 1991, there had been no followup
activities in that field.
The Principles were totally unknown in most countries. Many countries had no
laws regulating the forced institutionalization of disabled persons, and
decisions were left to the medical profession, without legal review. If such
laws existed, they rarely met international human rights standards. Neither
were there any regulations or programmes on reparation and compensation for
disabled persons who had been detained without review of their medical
condition, had received no treatment or insufficient treatment, had been
compulsorily sterilized or sexually exploited, or had been the victims of
medical experimentation. Such violations occurred not only in poor countries,
but also in countries which called themselves developed. The previous week
her organization had organized the first European Conference of Disabled Women
on SelfDetermined
Living in Munich, where serious violations of the rights of
institutionalized disabled women had been reported.
22. Her organization also wished to draw attention to the issue of medical
experimentation without benefit to the affected disabled person, in the name
of scientific and technological progress. The Council of Europe's draft
Convention on bioethics permitted such human rights violations, in breach of
article 3 of the Universal Declaration of Human Rights and Principle 1 of the
Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care. Her organization vigorously protested
against those and similar utilitarian provisions of the draft Convention and
requested the SubCommission
to undertake an indepth
study on human rights
violations against detained disabled persons. It also urged the
SubCommission
to initiate programmes and activities which ensured the
promotion and implementation in all United Nations Member States of the
Principles for the Mentally Ill and the Standard Rules on the Equalization of
Opportunities for Persons with Disabilities.
23. Mr. VO VAN AI (International Federation of Human RightsFIDH)
said that
truth, justice and reparation were the three pillars of the fight against
impunity, which often occurred in the context of internal conflicts and
E/CN.4/Sub.2/1996/SR.28
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dictatorial regimes, but was also present in countries considered to be
democracies. In many such countries, the State too often agreed to legal or
extrajudicial mechanisms that enabled the perpetrators of human rights
violations to keep their jobs within the State apparatus, and judges' efforts
to elicit the truth and sentence the guilty to penalties proportional to the
seriousness of their crimes were too often thwarted by the Executive. In that
connection, FIDH had strong reservations about the concept of a “reference
period” in Mr. Joinet's report on the impunity of perpetrators of violations
of civil and political rights (E/CN.4/Sub.2/1996/18). On the other hand, it
commended the Special Rapporteur's decision to take into account the proposals
of several NGOs to the effect that the Principles should apply to mass or
systematic violations of human rights, as the two concepts described very
different situations, and to expand them to cover all serious violations of
human rights.
24. FIDH considered that the general amnesty laws adopted in Peru in respect
of State officials who had committed serious human rights violations in the
context of the efforts to combat subversion gave rise to intolerable impunity.
It also denounced the persistent impunity in Guatemala where, despite formal
commitments by the Government as part of the Comprehensive Agreement on Human
Rights of March 1994, none of the notorious criminals of the 1980s had stood
trial for his crimes.
25. FIDH also wished to express concern at the maintenance of the state of
emergency and emergency legislation in Ireland and Northern Ireland. It
requested the Sub-Commission to invite the Governments of the United Kingdom
and Ireland to repeal that legislation and give priority attention to respect
for human rights in their peace negotiations.
26. FIDH remained deeply concerned at the deplorable conditions of detention
of prisoners of opinion in Viet Nam and at the brutal forced repatriation of
boat people. Some of those who had been forcibly repatriated were also at
risk in their home country because of their opinions or human rights
activities. FIDH strongly opposed the conviction of three people in Hanoi
on 22 August 1996 for simply making a peaceful appeal for democratic reforms.
27. FIDH denounced the current deterioration in the administration of
justice in Egypt. In June 1995, the Court of Appeal in Cairo had declared
Professor Abou Zaid an apostate on the ground that his writings undermined the
holy character of the Koran, and had dissolved his marriage. The Court of
Cassation, against all expectations, had rejected the parties' appeal against
the Court of appeal decision. It seemed that even the personal lives of
Egyptian intellectuals were at risk if their writings did not obey the
dictates of the radical Islamists.
28. Mr. Lindgren Alves took the Chair.
29. Mr. TUFAIL (World Muslim Congress) said that the guarantees governing
detention and trial contained in article 21 of the Indian Constitution were
not respected in India, where the rule of law had been replaced by State
terrorism. Detention without trial, inhuman conditions of detention,
custodial killings and trials of civil disputes by military and paramilitary
forces were common occurrences throughout the country.
E/CN.4/Sub.2/1996/SR.28
page 10
30. According to the Indian Constitution and laws, India had no sovereignty
over occupied Jammu and Kashmir, yet even to talk or write about the promises
made by the Indian Prime Minister concerning Kashmiri rights was punishable
with a life sentence under the Terrorist and Disruptive (Prevention)
Activities Act of 1987. Jammu and Kashmir had become a concentration camp
guarded by 700,000 members of the military and paramilitary forces. No person
apprehended was produced before the courts; there were no investigations and
no trials, and lawyers were arrested and tortured. As a judge of the
High Court at Srinagar had stated, there were hundreds of cases of illegal
detention, and the court had been made helpless by the law enforcement
agencies. For all those reasons, the World Muslim Congress requested the
Sub-Commission to send a Special Rapporteur to India and Kashmir.
31. Mrs. GARSTANG (Liberation) expressed her organization's concern at the
human rights abuses against detainees and the prolific use of emergency
legislation worldwide, especially in Turkey, India and the United Kingdom.
32. In Turkey, the 1991 Anti-Terror Law defined a terrorist as anyone who
questioned the territorial integrity of the Turkish State, resulting in the
detention of journalists, politicians and human rights activists.
33. In India, sweeping powers of arrest and detention and authority to shoot
to kill had been granted to security forces in regions where the Government
was involved in political disputes with minorities. The Indian Constitution
allowed the central Government to dismiss regionally-elected state governments
and impose "presidential rule" in regions where it perceived a threat to the
security of the nation. When a State imposed emergency legislation on a
region, the Sub-Commission should look for evidence of a genuine commitment on
the part of that State to settle the disputes through negotiation. That did
not appear to be the case in the northeastern
states and Punjab.
34. Some 18 months after the IRA had declared a cease-fire in
Northern Ireland, her organization remained concerned that none of the
emergency legislation had been repealed. The police had powers to detain
suspects for seven days without producing them before a court. Liberation was
also concerned about the use of plastic bullets by the security forces. In
the United Kingdom there seemed to be a growing tendency to resort to the use
of national security legislation in order to deport residents whose presence
jeopardized the United Kingdom's political or trade relations. The impotence
of the United Kingdom's judiciary in such cases seriously undermined its
independence.
35. In many countries, the impartiality of the judiciary was severely
compromised by political pressure. In certain regions of India, for instance,
the pattern of harassment and disappearance of human rights activists and
lawyers continued, in some cases with the apparent complicity of the courts.
It was also clear that states of emergency were not always declared but were
sometimes exercised de facto in some countries. The use of emergency
legislation for long periods in countries such as India and the United Kingdom
reflected the inability of those States to find realistic political solutions
to their problems; the Sub-Commission should therefore look at ways of
discouraging them from relying on such measures to avoid political solutions.
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page 11
36. Mrs. HUTZINGER (France-Libertés - Fondation Danielle Mitterrand) said
that more than 10,000 political prisoners were still being detained in Turkey;
international public opinion had been aroused when hundreds of prisoners had
gone on hunger strike for 69 days to protest at prison practices. Arrest and
prosecution for “crimes of opinion” were on the rise in Turkey, and the
Government pointed to the minimal changes made in article 8 of the anti-terror
legislation as an example of significant progress. In addition, the state of
emergency in force since 1978, which had introduced a permanent state of
discrimination, had been extended in 10 Kurdish provinces. In view of such
systematic violations of human rights, the Sub-Commission should decide to
appoint a special rapporteur on the question.
37. The state of emergency was being maintained in Bahrain, and serious
human rights violations were continuing. Since the previous session of the
SubCommission,
132 sentences had been handed down by the State Security Court
against persons who had not been assisted by a lawyer of their choice.
Ill-treatment and torture continued to be common practice in detention
centres. In addition, the friends and relatives of avowed or alleged
opponents of the regime were regularly harassed. In view of that situation,
her organization urged the Sub-Commission to intervene in order to secure
authorization for international observers to visit the prisons and meet
detainees' relatives.
38. Despite heavy criticism, Iran continued to flout its citizens' basic
human rights and freedoms. The situation of thousands of political prisoners
was desperate: they were subjected to deplorable conditions of detention,
torture and summary executions. For example, Kazem Mirzal, imprisoned
since 1994 for belonging to the Democratic Party of Kurdistan of Iran, had
recently died under torture in prison. It should be pointed out in that
connection that Iran had still not signed the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. In that context,
her organization requested the Sub-Commission to intervene in order to enable
the Special Representative on the situation of human rights in the Islamic
Republic of Iran to visit the whole of the country to study the situation of
minorities, in particular the Kurds.
39. Her organization also wished to draw the Sub-Commission's attention to
the increase in arbitrary arrests in Ethiopia, and appealed for 1,600 young
Saharans, who had gone to Rabat to demand to be allowed to exercise their
social rights, been detained in a sports complex and then been escorted home,
not to be subjected to reprisals.
40. Mr. TRAMBOO (International Human Rights Association of American
Minorities IHRAAM)
said that the greatest threat to judicial independence
came not only from the executive and legislative branches but also from
organized crime, powerful business circles and multinational corporations.
The situation of the newly emerging democracies was of particular concern,
since in some of those countries Governments unjustifiably interfered with the
judiciary.
41. A classic example was the Indian administration's deliberate
interference with the judiciary in Jammu and Kashmir. Mr. Noor Mohammad
Kalwal had been arrested in October 1991 and regularly shifted from one
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page 12
detention centre to another, living in miserable conditions. Mr. Kalwal had
made various applications for release and finally been granted bail by a Jammu
and Kashmir court. He had not been released, however, and when the High Court
had looked into his case, it had directed the state government to produce him
before the Court. The government had refused the Court's order, and nearly
one year later the AdvocateGeneral
had indicated that Mr. Kalwal's case had
been referred to a socalled
“screening committee”. Surprisingly, the
High Court had accepted the government's plea, and the matter was still being
considered by the committee. No judicial remedy was available to Mr. Kalwal.
There were hundreds of Kashmiris languishing in Indian prisons, unable to
exercise the remedy provided by the Indian legal system. The Special
Rapporteur should attend to cases like that of Mr. Kalwal, and the
SubCommission
should make adequate resources available to the Special
Rapporteur to enable him to do his job more effectively.
42. Mr. CHERNICHENKO said that he had listened to several statements by NGOs
and wondered whether they did not in fact relate to agenda item 6. In
addition, the Special Rapporteur was being asked to look into specific cases,
which was completely at variance with his mandate. Similarly, the
SubCommission
was only responsible for examining individual complaints
in the framework of the procedure governed by Economic and Social Council
resolution 1503 (XLVIII). He hoped that the NGOs would take those points into
account in their statements.
43. Mr. KIRKYACHARIAN (Movement against Racism and for Friendship among
Peoples MRAP)
said that numerous States resorted to ostensibly legal
measures in order to get rid of their opponents.
44. MRAP endorsed the demands contained in the copious file of documentation
on prisons in Turkey, which the Association for the Prevention of Torture had
prepared and submitted to the members of the SubCommission.
MRAP also
believed that it would be to Tunisia's credit to hold a public retrial of a
lawyer, Najib Hosni, whose case was of concern to a number of jurists
throughout the world. Similarly, the measures taken by Morocco to put an end
to a dubious past were very positive, but the question of the Saharan
prisoners should be settled quickly. MRAP was also concerned at the situation
in Indonesia, where the Constitution in force did not recognize the
independence of the judiciary and where activists from the small Popular
Democratic Party, which was not recognized by the authorities, were being
arrested and harassed because of their contacts with, in particular,
Amnesty International, Australian trade unions and Indonesian opposition
members residing in Europe. He invited a witness of the situation in Iran,
Mr. Mesdagi, to continue his organization's statement.
45. Mr. MESDAGI (Movement against Racism and for Friendship among
Peoples MRAP),
a former political prisoner who had spent 10 years in Iranian
prisons, read out a letter from one of his former fellow prisoners,
Mr. Kalany, addressed to Mr. Copithorne, the Commission's Special
Representative on the situation of human rights in Iran. In the letter
Mr. Kalany said that he had met Mr. Galindo Pohl, the former Special
Representative, in January 1990. Following that meeting he had been arrested
by the regime's agents and imprisoned for 24 months, during which the people
interrogating him had told him that the Special Rapporteur could do nothing
E/CN.4/Sub.2/1996/SR.28
page 13
for him. He had been released and then rearrested
in June 1993 for having
links with the Mujahidin. His trial had lasted only 20 minutes, and a few
days later he had been notified of his sentence: death by hanging. In
November 1995, he had been given permission to see his family before the death
sentence was carried out. His execution and that of a fellowprisoner
had
been postponed because the human rights situation had been under investigation
by various United Nations bodies and because the Commission's new Special
Representative had been about to visit Tehran. Through his letter, on
behalf of 11 other people sentenced to death and about to be executed,
Mr. Kalany had appealed for help to the United Nations and all people who
defended human rights and freedom throughout the world.
46. He informed the SubCommission
that Mr. Kalany had been executed
on 22 June 1996.
47. Mr. CHOEPHEL (International Association of Educators for World Peace)
considered it essential to promote and protect the rights of detainees, and
particularly political prisoners; Governments systematically abused their
rights, with the sole aim of undermining their dignity and their cause. In
Tibet, for example, 14 Tibetan political prisoners had died while in custody
in prisons and labour camps described by the Chinese authorities as “special
schools in which systematic and regular education on law, ethics and the
philosophy of life is carried out along with basic education and vocational
training”. According to reports from Tibet and testimony of former prisoners,
custodial deaths in Tibet were the result of the routine use of torture,
unhealthy prison conditions, the denial of adequate medical treatment and
food, forced extraction of blood and mandatory labour. The Chinese
authorities had so far failed to give any information about those deaths and
no investigation had been carried out.
48. Two United Nations bodies, the Committee against Torture and the
Committee on the Elimination of Racial Discrimination, had expressed concern
about conditions of detention in Tibet. Custodial deaths in Tibet were the
result of a harsh crackdown on “suspect” individuals or groups, in other words
guilty of expressing their political or religious views. Examples were the
eleventh Panchen Lama, a musician and a young monk who had been arbitrarily
detained and about whom no information was available. A political prisoner in
Tibet could sometimes be held for over a year without anyone's knowledge and
certainly without publicity, as China considered attempts to gather
information about prisoners and prisons to be a violation of State security,
which was punishable by death.
49. Mr. Eide resumed the Chair.
50. Mr. KAVOUSI (International Falcon Movement Socialist
Educational
International) said that he was a former political prisoner in Iran and had
been subjected to physical and psychological torture for 10 years in two
prisons in Tehran. Members of his family had also been arrested and tortured.
He had witnessed the massacre of political prisoners in Evin prison in August
and September 1988. After release, he had been kept under surveillance and in
July 1995, fearing for his life because of his resistance activities, he had
taken refuge in Turkey. While his case had been considered by UNHCR, he had
been arrested by the Turkish police, handed over to Iranian border guards and
E/CN.4/Sub.2/1996/SR.28
page 14
again imprisoned in Iran. During his captivity, international organizations
and political personalities, UNHCR, the International Committee of the
Red Cross and special rapporteurs of the Commission on Human Rights had acted
on his behalf. The Iranian authorities had pressured him into signing a
prepared statement admitting that he had been manipulated and forcibly
recruited by the People's Mujahidin opposition movement before returning him
to Turkey. In Turkey, the Iranian regime's security agents had confiscated
his passport and threatened to send a copy of his statement to the Special
Representative of the Commission on Human Rights on Iran and to other
international organizations. After explaining his case to UNHCR and
completing the relevant legal procedures, he had managed to obtain political
refugee status in Sweden.
51. He drew the attention of the members of the SubCommission,
government
representatives and NGOs to the new ploy being used by the Iranian authorities
to discredit opposition movements and deceive human rights organizations and
United Nations bodies.
52. Mr. VIDYSEKHAR (International Institute for Peace) said that,
regrettably, Governments in some countries continued to ignore the laws,
rules and procedures which governed the administration of justice and the
human rights of detainees. In Pakistan, thousands of persons were being held
without charge or trial and tortured in custody. In 1995, 130 people had been
hanged in public, and there had been over 1,800 politicallymotivated
murders.
The Human Rights Commission of Pakistan had submitted many reports of police
brutality but little or no action was taken by the authorities. The number of
people killed in the context of ethnic and sectarian tension was also on the
rise. There were many children in prison, and freedom of the press existed in
name only.
53. In Sindh Province, and in Karachi in particular, the situation was no
less serious than that in some of the countries in which the Security Council
had intervened. Hence there was an urgent need to put an end to extrajudicial
executions in Sindh, to restore the Mohajirs' civil rights and to strengthen
the judiciary, whose role was crucial in all countries where innocent people
were made to suffer at the hands of unpunished criminals. The courts were the
chief custodians of the law and human rights.
54. Mrs. RUPPRACHT (International Progress Organization) said it was
regrettable that certain States continued to violate the guarantees contained
in the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights concerning the rights of detainees and the
administration of justice. Such violations had led the Security Council to
take firm steps in the former Yugoslavia and Rwanda. There were other States
which were committing atrocities, but no action had been taken against them so
far.
55. In Pakistan, for example, laws were enacted mostly by presidential
ordinances rather than by acts of Parliament. One hundred and twentyseven
ordinances had been issued in 1995 alone. Atrocities against women continued,
and victims of rape in custody found it difficult to obtain redress.
Razia Masih, who had been arrested in August 1995, had been raped in custody
by three police officers. Under pressure from the police, the doctor had
E/CN.4/Sub.2/1996/SR.28
page 15
refused to issue a medical certificate to support the victim's allegations,
and the culprits had gone unpunished. The United Nations Convention on the
Rights of the Child was also shown scant regard by the Pakistan authorities.
The situation was so serious that Amnesty International had published a report
on the issue and urged the Government of Pakistan to abolish the death penalty
for children, in accordance with Pakistan's obligations under the Convention.
Fundamental freedoms were also denied to ethnic minorities, and religious
intolerance had become a hallmark of the State. There had been reports of
religious fanatics carrying out executions themselves. Under pressure from
fundamentalists, the Government had gone back on its own proposal for
procedural changes in the blasphemy laws to prevent abuses. Where the law was
not allowed to take its course and the verdict of the judiciary was not
honoured, human rights could not be protected.
56. Mr. FRITZMER (Observer for Haiti) said that popular resistance and
international pressure had forced totalitarian Governments to yield power to
legitimate leaders in several countries. Those new leaders, however, often
inherited a social and political situation that entailed contradictions and
was therefore difficult to manage. The two most common questions were how to
meet the people's demands for combating impunity and how to guarantee that the
judiciary functioned properly and independently when its members still had
ties with the social and political groupings of the old regime. Those were
some of the problems Haiti had been facing since 15 October 1994, when the
rule of law had been restored. During the 28 years of the Duvalier
dictatorship, the judiciary had been completely subservient. Despite the
current Government's efforts, Haitian justice was still fraught with
corruption and ineffectiveness, a situation that led to impunity. The victims
of the military coup d'état in 1991 were still awaiting compensation for the
physical, mental and material injury they had sustained.
57. The National Commission on Truth and Justice, established
on 17 December 1994, had on 6 February 1996 submitted a report containing
victims' testimony, a list of persons accused of violations and a set of
recommendations. The recommendations had not yet been implemented because of
the internal factors he had mentioned earlier and the Haitian judicial
system's lack of means and resources. In addition, the documents of the FRAPH
terrorist organization and the files of the former army had not been returned
to the Haitian Government, despite the recommendation of the independent
expert on the situation of human rights in Haiti.
58. The internal legal instruments needed for the effective administration
of justice existed in his country but would have to be modernized and properly
implemented. The Government was determined to thoroughly reform the judicial
system but did not have sufficient means and resources to do so. For that
reason, as the independent expert had stressed, the process of judicial reform
under way in Haiti must be given priority in bilateral and multilateral
assistance programmes.
59. Mrs. PEREZ DUARTE (Observer for Mexico) said that on the initiative of
the President of Mexico, the Congress of the Union had adopted constitutional
reforms on the administration of justice, with a view to strengthening the
autonomy of the judiciary and reaffirming the role of the Supreme Court of
Justice of the Nation as a court empowered to rule on the constitutionality of
E/CN.4/Sub.2/1996/SR.28
page 16
laws. A Council of the Judiciary had also been established, with
responsibility for administrative functions and the selection of judges and
magistrates. For the first time in the country's history, the members of the
Supreme Constitutional Court were being elected by the Senate, which
constituted a further guarantee of the autonomy of the judiciary. Also on the
initiative of the President, reforms had been made in the Public Prosecutor's
Office, representing an important step forward in combating impunity,
corruption and injustice. After a visit to Mexico in July 1996, the
InterAmerican
Commission on Human Rights had commended the measures taken by
the Office of the Government Procurator of the Federal District to purge the
police forces and raise the level of professionalism of its members.
The AttorneyGeneral
of the Republic had dismissed 737 federal
employees, 17 per cent of whom had been police officers.
60. The federal Government was seeking to identify the difficulties facing
indigenous populations in the administration of justice and take measures to
protect their rights. Through the indigenous affairs programme, the National
Human Rights Commission was giving special attention to communities who were
the most vulnerable to human rights violations because of their marginality
and poverty. At the current session certain speakers had referred to
incidents that had occurred during the Chiapas conflict. In that connection,
the National Human Rights Commission had made three recommendations concerning
alleged violations against a number of individuals, the competent authorities
had accepted those recommendations and the appropriate administrative
proceedings had been instituted.
61. The people arrested in February 1995 had been tried at first instance
under Mexican law and two of them, Javier Elorreaga and his codefendant,
had
been found not guilty at second instance. Hence the judiciary was acting in
conformity with the law and independently of any political considerations.
She was obliged to make that point because of the remarks of one NGO, the
International Educational Development Humanitarian Law Project, which had not
only repeatedly cast doubt on the independence and impartiality of the
administration of justice, but also criticized the activities of the armed
forces and the allocation of government expenditures. Slanderous allegations
were not likely to lead to dialogue and peace. Her delegation considered that
NGOs which used international human rights bodies for political propaganda
were distorting the principles and objectives of those bodies and also
discrediting themselves.
62. Mr. SAMIR KOUBAA (Observer for Tunisia) said that, given the totally
unfounded allegations made by a number of NGOs against Tunisia, it should be
explained that the trial to which they had referred was an ordinary trial with
no political overtones and absolutely no connection with the defendant's human
rights activities. The defendant had enjoyed all the legal guarantees
available under Tunisian legislation, in conformity with the international
human rights instruments to which Tunisia had acceded. It was regrettable
that the representative of one of those NGOs was ignoring the nonexhaustion
of internal remedies, exploiting the matter for subjective and personal
reasons, and abusing the procedures established by the United Nations system.
63. In the case in question, the defendant had made a statement, reported by
AFP on 13 March 1996, expressing confidence in Tunisia's institutions and
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page 17
system of justice. In addition, the observer for the International Commission
of Jurists who had attended the trial had written that, despite the failure of
the accused to obey instructions to make no political statements, the
defendant had at no time been interrupted by the Court, the judge had not
interrupted the defendant's lawyers and the ProcuratorGeneral
had called for
a penalty proportional to the offence. The trial had been conducted with
complete equity and transparency.
64. Under the leadership of President Ben Ali, since 7 November 1987 Tunisia
had been affirming its commitment to establishing the rule of law and a
democratic society and promoting its citizens' individual and collective
political, economic, social and cultural rights. In addition to ratifying the
international human rights instruments, promulgating legislation and
establishing structures for the protection of human rights, the Government had
endeavoured to incorporate a “human rights” element into the curricula of all
educational establishments and lawenforcement
training institutions. There
were over 6,000 nongovernmental
associations working in support of human
rights. In the social sphere, a national solidarity fund had been established
to implement programmes for providing the inhabitants of remote areas with a
satisfactory standard of living. President Ben Ali had also reaffirmed his
commitment to the effective administration of justice by recommending the
implementation of the decisions recently taken by the Council of the Judiciary
to accelerate judicial proceedings and provide for a system of release on
bail.
65. Tunisia's achievements had earned it the esteem of several international
agencies, including IMF, the World Bank and UNDP, and the progress it had
made, despite a difficult environment and economic situation, sharply belied
its detractors' remarks.
66. The CHAIRMAN invited governmental observers to speak in exercise of
their right of reply.
67. Mr. OLADEJI (Observer for Nigeria) referred to criticisms levelled
against his country by an NGO, Pen International, concerning the conditions
under which four journalists had been tried for an attempted coup d'état.
Those journalists had been tried under the laws of Nigeria on charges of being
accessories to an attempted coup d'état, found guilty and sentenced
accordingly. He wondered why the NGO had chosen to publicize only the case of
those journalists whereas other persons had been involved in the trial.
Should journalists be treated differently from other people? His Government
believed in the principle of equality of citizens before the law, regardless
of their calling, race, tribe or religion.
68. Mr. BUI QUANG MINH (Observer for Viet Nam) said that the charges
levelled against his country by the International Federation of Human Rights
on behalf of the “Viet Nam Human Rights Committee” were motivated by political
considerations and hatred rather than the protection of human rights. Such
allegations were repeatedly made, year after year, by Vietnamese abroad who
had worked for the barbarous and unpopular former regime in South Viet Nam,
which had been overthrown by the Vietnamese people in 1975. More than
20 years later, when the country had unquestionably developed economically and
hundreds of thousands of people were enjoying the Vietnamese Government's
E/CN.4/Sub.2/1996/SR.28
page 18
policy of reconciliation and working together as a nation, it was deeply
regrettable that some people continued to sabotage the revival process
currently under way, His delegation rejected those false allegations, which
he was certain would not deceive the international community.
69. Mr. MAHDI ALHADDAD
(Observer for Bahrain) rejected the allegations made
by the NGO FranceLibertés:
Fondation Danielle Mitterrand, which seemed to
have completely forgotten the latest plot against Bahrain by the Hezbollah
party. The Bahrain authorities reaffirmed their commitment to the promotion
of human rights.
70. Mrs. JANJUA (Observer for Pakistan) said that some NGOs, which obviously
had ties to the Indian Government, were making completely unjustified charges
against her Government. While human rights were being systematically violated
in Kashmir and while, as Amnesty International had reported, citizens in India
were dying under torture in police custody with no judicial proceedings being
instituted against the culprits, it was inadmissible that NGOs in the pay of
the Indian Government should persist in attacking her country.
71. Mr. BEBARS (Observer for Egypt), referring to the remarks made by the
representative of the International Federation of Human Rights about the
situation of Mr. Abou Zaid, said that the judiciary was fully independent in
Egypt; the Egyptian Constitution stipulated that the law was supreme and the
State must obey it. The judicial apparatus consisted of a twotiered
system
of jurisdiction: the courts of first instance and the Court of Appeal.
Concerning the trial in question, it should be noted that Mr. Abou Zaid's wife
had led him away from the Muslim religion and that he had been convicted in
accordance with the Shariah, which governed marriages between Muslim men and
nonMuslim
women. The Court of Appeal had rejected Mr. Abou Zaid's appeal.
In January 1996, a law had been adopted facilitating access to the courts by
private individuals who considered that their rights had been violated.
The meeting rose at 1.10 p.m.