UN Human Rights Treaties

UNITED NATIONS
E
Economic and Social
Council
Distr.
GENERAL
E/CN.4/1996/SR.23
21 May 1996
ENGLISH
Original: FRENCH
COMMISSION ON HUMAN RIGHTS
Fifty-second session
SUMMARY RECORD OF THE 23rd MEETING
Held at the Palais des Nations, Geneva,
on Tuesday, 2 April 1996, at 4 p.m.
Chairman: Mr. MBA ALLO (Gabon)
later: Mr. VERGNE SABOIA (Brazil)
CONTENTS
REPORT OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF
MINORITIES ON ITS FORTY-SEVENTH SESSION (continued)
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION
OR IMPRISONMENT, IN PARTICULAR:
(a) TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT
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 Commission
at this session will be consolidated in a single corrigendum, to be issued
shortly after the end of the session.
GE.96-12434 (E)
E/CN.4/1996/SR.23
page 2
CONTENTS (continued)
(b) STATUS OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN
OR DEGRADING TREATMENT OR PUNISHMENT
(c) QUESTION OF ENFORCED OR INVOLUNTARY DISAPPEARANCES
(d) QUESTION OF A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT
E/CN.4/1996/SR.23
page 3
The meeting was called to order at 4 p.m.
REPORT OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF
MINORITIES ON ITS FORTY-SEVENTH SESSION (agenda item 15) (continued)
(E/CN.4/1996/2-E/CN.4/Sub.2/1995/51, E/CN.4/1996/79, 80 and Add.1 and 2, 81,
82, 85, 86 and 134; E/CN.4/1996/NGO/5, 13, 23 and 65; A/50/369;
E/CN.4/Sub.2/1995/22 and 28/Add.1)
1. Mr. NARVAEZ GARCIA (American Association of Jurists) expressed his
organization’s concern at the Sub-Commission’s working methods since, in his
opinion, some of its studies were simply a reiteration of previous studies on
the same subject or related to questions that did not fall within its terms of
reference and therefore duplicated the activities of specialized agencies. In
that regard, he mentioned the question of female sexual mutilations and other
traditional practices affecting the health of women, which had been considered
by a working group established by the Commission on Human Rights in 1984 and
was regularly discussed by WHO, which was engaged in field action in
cooperation with national bodies and sometimes with UNICEF and UNDP. Other
questions were of a nature that did not necessitate the appointment of a
special rapporteur; that was the case, in particular, with the periodic
reports on the States that had proclaimed, extended or lifted a state of
emergency. Related activities, such as seminars and international meetings,
should be justified only by the novelty or complexity of the subject under
consideration and the diversity of the approaches thereto. It would be
appropriate for the Sub-Commission to submit to the Commission on Human
Rights, pursuant to Commission resolution 8 (XXIII), an annual report
containing information on violations of human rights and fundamental freedoms
from all the available sources and to bring to the Commission’s attention any
situation that seemed to reveal a consistent pattern of violations of those
rights and freedoms in any country.
2. Moreover, the excessive recourse to the confidential consideration
procedure and to a vote by secret ballot could detract from the credibility
and moral authority of the Sub-Commission, whose work should be conducted in
the most transparent manner possible. A vote by secret ballot did not, as had
been alleged, strengthen the independence of the experts, since they either
were or were not independent. Their competence in the various fields relating
to human rights should also be recognized and well documented. The purpose of
those comments by the American Association of Jurists was merely to help to
increase the effectiveness of the Sub-Commission, which it regarded as an
irreplaceable and indispensable body for the defence and promotion of human
rights.
3. In conclusion, he requested the Commission to consider the human rights
situation in Colombia, which formed the subject of Sub-Commission
resolution 1995/6, and to take the necessary measures to put an end to the
violations that were being committed in that country.
4. Mrs. MARWAH (Indian Council of Education) said that it was situations
revealing a consistent pattern of violations of human rights, including
policies of discrimination, segregation and apartheid, with particular
reference to colonial and dependent countries, which should be brought to the
attention of the Commission. It might be wondered how much time was needed to
E/CN.4/1996/SR.23
page 4
decide whether the human rights violations committed in a country constituted
a consistent pattern and whether greater attention should be paid to the
question when those violations took place in non-colonial or non-dependent
countries. In any civilized society, it was the responsibility of the State
to promote and protect the human rights of all individuals, including the
members of vulnerable ethnic, linguistic or religious minorities. The
International Bill of Human Rights clearly showed that the United Nations
could not remain indifferent to the fate of minorities. However, many
countries which proclaimed their commitment to the principles set forth in the
Bill were continuing to ruthlessly deny the basic rights of the minorities
living in their territory.
5. Fortunately, there were others, such as India, which had wisely enshrined
the fundamental principle of secularism in their Constitution and taken
measures to ensure that all religions were treated on an equal footing, since
they knew that, otherwise, no multi-ethnic and multireligious society could
survive. The emergence, in recent years, of a number of conflicts stemming
from religious or ethnic problems was threatening the societies which had made
an effort to institutionalize equal treatment, regardless of race, colour, sex
or belief. The most alarming thing was that some States agreed to the
redrawing of national borders on the basis of religious considerations. It
was evident that minorities would never be able to occupy their rightful place
in society unless a way was found to prevent some States from applying an
official policy of discrimination against specific groups of their population
on the basis of sex, religion or ethnic origin.
6. Mr. HARDBATTLE (Four Directions Council) drew the Commission’s attention
to the fate of the Khwe people of Botswana, whom the Botswana Government
refused to recognize not only as a people but as a minority entitled to
protection under the International Convention on the Elimination of All Forms
of Racial Discrimination, which Botswana had nevertheless ratified. Contrary
to the Government’s affirmation in the latest periodic report it had submitted
to the Committee on the Elimination of Racial Discrimination, since the 1970s
the Khwe people had systematically been driven from their traditional
ancestral territories; the last traditional Khwe community was currently being
forcibly removed from the Central Kalahari Game Reserve under the pretext of
protecting wildlife. It therefore seemed more important to the Government to
protect animals than human beings.
7. Consequently, the Four Directions Council urged the Commission to
intervene to halt the forcible removal of the Khwes from the Kalahari Reserve
and ensure that their basic rights were respected, particularly the right to
use their language, the right to no longer be confined in territories
controlled by the Government and the right to no longer be exploited, tortured
and murdered. In that connection, he referred to the case of a Khwe who had
died as a result of torture inflicted on him by the game wardens, who had
accused him of poaching. None of his torturers had been prosecuted.
8. The time had come for the Commission to no longer accept without
question the lies of the Botswana Government and, if necessary, to send
observers to Botswana to stop the forcible expulsion of the Khwes from the
E/CN.4/1996/SR.23
page 5
Kalahari Reserve. The Commission had an obligation not only to protect the
rights of the Khwes as a minority but also to ensure their survival as a
people.
9. Mr. ALI (Afro-Asian Peoples Solidarity Organization) said that the
present-day world was witnessing a proliferation of inter-ethnic conflicts
which arose from a lack of tolerance among different groups and were being
aggravated by the policy applied by some Governments. In fact, some States,
while professing democratic ideals, had institutionalized and legalized
discrimination between religions and had relegated the members of minority
groups to the status of second-class citizens on grounds of their gender,
their religious beliefs or their social class. For example, in Pakistan,
which had been created for Muslims but in which freedom of religion had been
guaranteed for all religious minorities, not only the Christians but also the
Shi’ites, the Zikris and the Ahmadis were being persecuted and oppressed.
Given the fact that intolerance spread rapidly, it was essential that the
defenders of democracy should appeal to Pakistan to remedy that situation
before other countries were afflicted.
10. The repressive measures against those minorities had been highlighted in
the latest report of the Human Rights Commission of Pakistan, which had often
deplored the country’s lack of a democratic culture and, like some
international NGOs such as Jubilee Watch and Human Rights Watch/Asia, had
attempted to show international public opinion how the constitutional and
legal structure of Pakistan in effect promoted discrimination against
religious minorities and women.
11. In order to safeguard the rights of all human beings, it was essential to
strengthen democratic structures, particularly in newly-independent countries.
There was also a need to counter the newly-emerging trends which might lead to
the creation of insular societies suspicious of those that did not subscribe
to their rigid beliefs. The Commission could certainly play a decisive
preventive role in that field.
12. Mr. SAFI (Muslim World League) referring, among other important questions
considered by the Sub-Commission at its forty-seventh session, to the impunity
of perpetrators of violations of human rights, said that the question of the
massive violations perpetrated by the Indian security forces in Kashmir had
been raised on several occasions under various agenda items.
13. Mr. Jalil Andrabi, Chairman of the Kashmir Commission of Jurists, who had
been one of the League’s most active members and had given the Sub-Commission
an eloquent description of the plight of the Kashmiris under the Indian yoke,
had been assassinated for defending the rights of the Kashmiris. Mr. Andrabi
had played an active role in denouncing the abuses committed by the Indian
security forces, with full impunity and with the acquiesence of the Indian
authorities, which had used arbitrary arrests and detentions, torture,
extrajudicial executions and the murder of civilians and peaceful
demonstrators as a weapon of war against the Kashmiris to force them to
abandon their struggle for self-determination. Hence, he had had to be
silenced.
E/CN.4/1996/SR.23
page 6
14. The Muslim World League recommended that the Commission should endorse
the decision of the Sub-Commission to appoint a special rapporteur to prepare
a report on the recognition as an international crime of gross and large-scale
violations of human rights perpetrated on the orders of Governments or
sanctioned by them, and proposed that the Special Rapporteur should begin by
studying the situation in the disputed territory of Jammu and Kashmir.
15. Mr. SHAWL (World Society of Victimology) emphasized the importance of
everyone’s right to freedom of movement and freedom of residence within a
State, as well as the right to leave any country, including one’s own, and to
return to one’s country. Those rights, which were recognized in various
international human rights instruments, had been reaffirmed in Sub-Commission
resolution 1995/13. The principles set forth in that resolution were
applicable to all countries, including those to which the Commission was
paying particular attention. However, in many regions, and particularly
Kashmir, the right to freedom of movement was being denied to many citizens,
and especially to defenders of human rights. Many Kashmiris had sacrificed
their lives in the campaign waged to exercise that right and denounce the
measures impeding its exercise by testifying before the Commission and the
Sub-Commission. One of his own friends, Jalil Andrabi, Chairman of the
Kashmir Commission of Jurists, had been assassinated after being abducted and
tortured by the Indian security forces for defending the right of the
Kashmiris to self-determination. His body had been found, with the hands
tied, near the centre where he had been detained. Since then, 24 other
Kashmiris, including another political activist, had been gunned down by the
Indian forces.
16. The report of the Sub-Commission should take note of those gross
violations of human rights and its adoption should not be a simple formality.
The Commission bore a responsibility to defend and protect all those who were
striving to promote human rights anywhere in the world.
17. Ms. SHAUMIAN (International Institute for Peace) said it was essential,
particularly for multinational States, to find ways to settle ethnic problems
and tensions that would simultaneously guarantee the territorial integrity of
the country concerned and respect for the human rights of its population. In
fact, in recent years, with the development of nationalism, the question of
territorial integrity had become an acute political problem. Moreover, ethnic
sovereignty and territorial integrity were viewed as virtually irreconcilable
concepts, particularly since determination of physical and territorial
integrity was assumed to be a monopoly of the majority, of those holding power
and seeking to impose their will on the minorities, thus giving rise to bloody
conflicts.
18. However, it was important not to forget the role played in that regard by
political parties and groups which had come to power with the advent of
nationalism and which had been able to exploit latent ethnic tensions, as well
as by criminal groups which often had links with official circles and derived
vast profits from instability, military operations and arms sales. In Bosnia,
Chechnya and other regions where ethnic conflicts were raging, armed groups,
often with members from other communities and other countries, were resorting
to terrorism to impose their will on the local populations and destroy their
culture and resources in the name of causes and ideologies that dated back to
E/CN.4/1996/SR.23
page 7
the Dark Ages. It was indispensable, therefore, to settle the essentially
political problem of reconciling the right to ethnic sovereignty and the right
to territorial integrity in such a way as to safeguard fundamental human
rights and ensure respect for the interests of all the parties concerned
through dialogue and negotiation.
19. Mrs. de CASTRO-MULLER (Observer for the Philippines) focused on the draft
programme of action on the traffic in persons and the exploitation of the
prostitution of others and the question of traffic in women and girls and
called for urgent action to be taken at the national, regional and
international levels to put an end to the exploitation, and particularly the
sexual exploitation, of women, which had become a veritable industry on an
international scale. The problem had been recognized at the international
conferences held in recent years at Vienna, Cairo, Copenhagen and Beijing and
had been condemned at the forty-ninth session of the General Assembly, which
had associated the traffic in persons with other illegal activities such as
forced labour, false marriages, clandestine employment and false adoption.
20. In his report on that question (A/50/369), the Secretary-General
acknowledged that the analysis of the way in which those issues had been
approached in recent international declarations and programmes of action, or
under existing international instruments, showed that there was still some
ambiguity about the methods to be applied to solve the problem. To that end,
all countries should promptly accede to the relevant international
instruments, such as the 1949 Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others, to which only
69 States were parties. Various recommendations had been made by, for
example, the Commission on Crime Prevention and Criminal Justice, which had
advocated the adoption of criminal justice measures to combat the organized
smuggling of illegal foreign migrants, and by the Special Rapporteurs on
violence against women and the sale of children. A seminar on that question
had also been organized in 1994 by the International Organization for
Migration.
21. In his report, the Secretary-General also referred to the activities that
had been undertaken outside the United Nations system, such as the seminars
and conferences organized by the Council of Europe, various non-governmental
organizations and the Government of the Netherlands. For its part, the
Government of the Philippines had drawn up a bilateral programme to combat
that phenomenon in the Philippines, in collaboration with Belgium and some
non-governmental organizations.
22. Although initiatives were obviously not lacking, the problem was not
being approached comprehensively. For that reason, her delegation endorsed
the Secretary-General’s recommendation concerning the preparation of a
comprehensive report on measures to be taken to solve the problem of
international trafficking. Her delegation urged the Commission to approve the
draft programme of action on that question which had been prepared by the
Sub-Commission’s Working Group on Contemporary Forms of Slavery and which
would form an excellent basis for positive action in that field.
23. Mr. Vergne Saboia (Brazil) took the Chair.
E/CN.4/1996/SR.23
page 8
24. Mr. SHAMSHUR (Ukraine) said it was gratifying that the Sub-Commission had
often initiated discussions which had led to the drafting of international
instruments. That had been the case with the draft United Nations Declaration
on the Rights of Indigenous Peoples, which was currently being considered by
one of the Commission’s working groups. He also welcomed the Sub-Commission’s
decision (resolution 1994/26) to transmit the text of the Declaration on
Minimum Humanitarian Standards to the Commission, which should give due
attention to that problem and consider the eventual elaboration of a new
international legal norm in that regard. The Sub-Commission and the
Commission should also consider ways to follow up the Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental
Health Care, which had been adopted by the General Assembly in 1991. His
country was also very interested in the results of the first session of the
Working Group on Minorities, particularly its decision to formulate a
definition of the term "minority", and intended to play an active role in the
work of that body, which should nevertheless define its priorities even more
precisely.
25. In spite of those positive trends, however, it nevertheless seemed
essential for the Sub-Commission to review its modus operandi if it wished to
make optimum use of its capacities and maintain its prestige. The proposals
concerning the Sub-Commission and its relationship with the Commission which
had been made by the open-ended informal working group established under the
terms of the Commission’s decision 1994/111 were still valid. The
Sub-Commission should accord priority to the formulation of acceptable
recommendations based on in-depth studies of particular situations and general
human rights problems instead of spending time adopting politically-motivated
resolutions by secret ballot. It was also regrettable that some important
studies undertaken by the Sub-Commission’s experts had not been widely
disseminated. At all events, the Sub-Commission’s work should be rationalized
within the context of an overall improvement of the human rights mechanisms.
26. Mr. MACDARROW (Australia) highlighted the action taken by the Australian
Government to defend the rights of disabled persons. In 1992, the Government
had enacted the Disability Discrimination Act, under which any form of
discrimination based on disability became unlawful and which was one of the
very first examples anywhere in the world of legislation designed to combat
discrimination on grounds of disability in a comprehensive manner.
27. At the international level, in the continuing absence of an international
convention on disability, Australia believed that the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities, which had been
adopted by the General Assembly in 1993, constituted the most significant text
in that regard. Australia was proud to have played a role in the drafting of
those Rules and welcomed the decision that had been taken to appoint, within
the framework of the Commission for Social Development, a Special Rapporteur
to monitor their application. Australia had replied to the first
questionnaire prepared by the Special Rapporteur and was currently drafting
its reply to the second. The Australian authorities were doing everything
possible to stimulate wider public awareness of the Rules and also of the
Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care. They were stressing the fact that
disability should be regarded as a forbidden reason for discrimination, as in
E/CN.4/1996/SR.23
page 9
the case of AIDS, for example. They welcomed the fact that explicit reference
to the disabled had been made in the Convention on the Rights of the Child
(arts. 2.1 and 23) and had noted, with great satisfaction, the work on
disabled persons of the Committee on Economic, Social and Cultural Rights.
28. In accordance with the Vienna Declaration, all the rights of disabled
persons should be recognized as universal and interdependent and should be
safeguarded by all possible means through regional and international
cooperation.
29. Mr. LIU Xinsheng (China) pointed out that, in international relations,
the strong were still bullying the weak and new forms of racism, such as
xenophobia and discrimination against migrant workers, were rampant in certain
countries. United Nations human rights bodies, including the Sub-Commission,
should give priority attention to those problems. Realization of the right to
decent living conditions, as well as the right to development, had become a
rigorous test for bodies defending human rights. The Sub-Commission had
conducted serious studies on the right to housing, human rights and extreme
poverty and issues of common concern such as the protection of indigenous
populations; in that regard, the Working Group on Indigenous Populations,
chaired by Mrs. Daes, had made a valuable contribution to the drafting of the
declaration on the rights of indigenous populations.
30. The Sub-Commission should remain committed to the principles of fairness
and objectivity and should put an end to the unfounded accusations that were
being made against Asian, African and Latin American countries. It was
regrettable that some NGOs were refusing to comply with the principles of the
Charter, the provisions of Economic and Social Council resolution 1296 (XLIV)
and the schedule of the Sub-Commission, thereby disrupting the latter’s work.
31. The Sub-Commission, being by nature different from the Commission, should
confine itself, in accordance with its mandate, to studying questions of a
universal nature in the field of human rights, with a view to providing the
Commission with advisory opinions; it should not involve itself in matters not
directly related to human rights and should not invest most of its energy on
country-specific situations. The Commission should consider ways to divide
the tasks between the two bodies in a rational and coherent manner.
32. Mr. Chang il PARK (Republic of Korea) said that, in the face of the gross
and systematic violations of human rights that had characterized recent years,
there was a need for more vigorous and fresh approaches to the promotion of
human rights. The Sub-Commission had shown concern for the particularly
critical problems that were being encountered in the modern-day world. For
example, since recent events had demonstrated the vulnerability of women to
sexual violence in times of armed conflict, the Sub-Commission had presented a
draft decision on systematic rape and sexual slavery in periods of armed
conflict. His country supported that draft decision, which had been
recommended for adoption in Sub-Commission resolution 1995/14, and welcomed
the fact that the Sub-Commission had decided to appoint Mrs. Linda Chavez as
Special Rapporteur on the question.
33. The Republic of Korea was in favour of an in-depth study of the question
of the impunity of perpetrators of crimes such as political genocide and
E/CN.4/1996/SR.23
page 10
ethnic cleansing, to which the Sub-Commission had given close attention.
Moreover, being convinced of the need to develop a mechanism to deal with
human rights violations committed by the State, his country believed that
Sub-Commission resolution 1995/22 deserved to be taken into consideration.
34. Finally, the Sub-Commission should make full use of the contributions of
NGOs without prejudicing its own effectiveness. Even if some of its working
methods needed to be reviewed, it should be able to continue its efforts to
promote and protect human rights.
35. Mr. SINGH (India) supported the guidelines contained in Commission
resolution 1995/26 and expressed his belief that the Sub-Commission’s most
useful activity consisted in the preparation of studies and recommendations.
The Sub-Commission’s task was to study alleged violations of human rights, to
present its conclusions to the Committee and to monitor new developments in
the field of human rights, bearing in mind the priorities outlined in the
Vienna Declaration and Programme of Action.
36. His delegation was concerned that the Sub-Commission was devoting less
effort to the preparation of studies and recommendations based on in-depth
research and its activities tended to reflect those of the Commission. At its
forty-seventh session, it had not complied with its mandate: the
Sub-Commission’s expert had not been able to complete his study on human
rights and terrorism and the Sub-Commission had not discussed that issue fully
due to "lack of time". In general, the Sub-Commission was not taking
sufficient account of current realities and of the principles set forth in the
Vienna Declaration and Programme of Action. With regard to its primary
function of preparing impartial studies and recommendations, it had as many as
26 mechanisms (rapporteurs, working groups and experts), and finally, the
Sub-Commission’s fields of intervention had proliferated with little
accountability to the Commission and it did not hesitate to interpret its
mandate broadly and even to alter that mandate.
37. The Sub-Commission should thoroughly modify its working methods in order
to play once again a dynamic role in the defence of human rights. His
delegation was willing to enter into consultations with all interested
delegations with a view to presenting to the Commission a resolution that
could be adopted by consensus. It already had some proposals aimed at
improving the Sub-Commission’s work.
38. The Sub-Commission should refrain from duplicating the debates of the
Commission and of the Third Committee of the General Assembly; it should
revert to its original role as a think-tank; it should present the results of
its examination of human rights violations to the Commission instead of
adopting a large number of resolutions; it should avoid any politicization of
its work and, instead of passing judgement, should seek dialogue and
consensus; it should come to terms with the new realities resulting from the
Vienna Conference, particularly the indivisibility and interdependence of
human rights, and approach those rights from a global perspective; it should
be more rapid and effective in carrying out its studies and the Commission
should not approve further studies until those under way had been completed.
In view of the financial difficulties, the Commission should make every
endeavour to avoid duplication and, in particular, should consider the
E/CN.4/1996/SR.23
page 11
possibility of either reducing the duration of the Sub-Commission’s annual
sessions to two weeks or, alternatively, making its sessions biennial.
39. Mr. LOUKIANTSEV (Russian Federation) emphasized the usefulness of the
studies undertaken by the Sub-Commission and noted that its decisions carried
weight largely due to the experience and independence of its experts. Its
standard-setting activities were particularly valuable for purposes of the
elaboration of new international norms. However, it was regrettable that some
studies were being unduly prolonged while others, although topical and
important, were deadlocked. For example, the study on the recognition of
gross and large-scale violations of human rights as an international crime
should give rise to a standard-setting activity.
40. The evolution of international relations inevitably had repercussions on
the activity of the United Nations and its organs, including the
Sub-Commission. In that connection, it should be noted that several members
of the Sub-Commission had not been able to come to terms with the new
situation and, as a result, the Sub-Commission’s work was being politicized
and the Sub-Commission itself was straying into fields that were not directly
related to human rights and sometimes duplicated the work of the Commission.
Inertia was impeding not only any reorganization of its activities but also
the updating of its agenda. The Sub-Commission’s activities and working
methods should be reviewed within the framework of the mandate defined by the
Commission. The Russian Federation felt that the time had come to help the
Sub-Commission to play a role in the new international situation and to
strengthen its authority as a body defending human rights; that would be in
everyone’s interest.
41. Mr. MENDOZA (El Salvador) said that, at its forty-seventh session, the
Sub-Commission had adopted two important resolutions, one entitled "Injurious
effects of anti-personnel land-mines" and the other "Prevention of incitement
to hatred and genocide, particularly by the media", which he hoped the
Commission would follow up in an appropriate manner. At the present session,
the Commission also had before it the report of the Working Group on
Contemporary Forms of Slavery and should take a favourable decision on the
draft programme of action on the traffic in persons and the exploitation of
the prostitution of others contained in the report.
42. At its previous session, the Commission had decided to continue its
consideration of the question of human rights and disability under the agenda
item concerning the report of the Sub-Commission and had recommended a
follow-up on the Standard Rules on the Equalization of Opportunities for
Persons with Disabilities, which had been adopted by the General Assembly. On
the question of disability, he suggested that the Commission should request
the Sub-Commission, at its next session, to invite the Commission’s Special
Rapporteur on social development, who was responsible for monitoring the
application of the Rules, to submit a report on his activities so that
endeavours could be made to supplement the existing norms in that regard.
43. The Sub-Commission should continue its efforts to improve its working
methods, thereby possibly helping to improve the functioning of the
Commission. Recalling that elections were due for half the members of the
Sub-Commission, he emphasized the importance of the independence of the
E/CN.4/1996/SR.23
page 12
experts of which it was composed and hoped that, in future, it would be
possible to put an end to the paradoxical situation in which experts formed
part of governmental delegations.
44. Mr. QUAYES (Bangladesh) said that the Sub-Commission, being responsible
for undertaking studies and making recommendations concerning the prevention
of discrimination and for considering communications in accordance with the
procedure set out in Economic and Social Council resolution 1503 (XLVIII), was
unique in so far as it was a subsidiary organ of the Commission consisting of
independent experts elected by the Member States. It functioned on the basis
of guidance from the Commission, which, for its part, drew on the
Sub-Commission’s work. Bangladesh, which had always carefully monitored the
Sub-Commission’s work, to which it attached special importance, was of the
opinion that some issues needed to be taken into account in order to improve
the functioning of the Sub-Commission.
45. Firstly, the Sub-Commission should resist the temptation to become a
parallel Commission by adopting an increasing number of resolutions which,
instead of reflecting the results of research conducted by the experts, tended
to further particular political interests. The Sub-Commission should
depoliticize its work and refocus on standard-setting activities, in which it
excelled, and on the confidential procedure for the consideration of
communications, leaving the Commission to take the decisions on the situation
in specific countries. For example, the unpleasant exchanges between experts,
the repartee between an expert and a delegation and the pejorative public
declarations that had been heard at the forty-seventh session should be
avoided. The Sub-Commission should focus on its cardinal function, but could
also engage in pioneering work by, for example, as suggested by Mr. Eide,
exploring a new generation of human rights instruments aimed at non-State
actors. Some subtle contemporary forms of human rights violations also
merited scrutiny, as did the protection of economic and social rights. The
Commission could request a working group to provide the Sub-Commission with
guidelines for its future work.
46. The Commission might also examine the work of the subsidiary bodies of
the Sub-Commission. An extension of the initial three-year mandate of the
newly-established Working Group on Minorities would not be justifiable unless
that working group carried out substantive work instead of merely confining
itself to consideration of the situation of minorities in specific countries.
Moreover, he wondered whether it would be advisable to retain the Working
Group on Indigenous Populations, since it had completed the drafting of a
declaration on the rights of indigenous peoples and consideration was being
given to the establishment of a permanent forum for indigenous people.
Bangladesh felt that the mandates of those two working groups could be
combined in a single revised mandate covering non-dominant population groups.
47. Mr. JAVED (Pakistan) said that, in his report (E/CN.4/1996/81),
Mr. Maxim, the Chairman of the Sub-Commission at its forty-seventh session,
had given an account of the useful work of the Sub-Commission in some new
fields such as, for example, human rights and the environment and the right to
a fair trial. The draft declaration on the rights of indigenous peoples, like
the Sub-Commission’s work on apartheid, had been completed and three new
studies were being considered.
E/CN.4/1996/SR.23
page 13
48. The Sub-Commission should, above all, endeavour to maintain the
objectivity and impartiality that was expected of independent experts.
Moreover, the confidential procedure provided for in Economic and Social
Council resolution 1503 (XLVIII) was too slow. The Commission had attempted
to remedy that shortcoming by appointing special rapporteurs; however, it was
important not to sacrifice impartiality in the interests of efficiency. That
procedure should be made more widely known, particularly among disadvantaged
and illiterate population groups. Finally, the procedure should be confined
to situations that seemed to reveal the existence of a consistent pattern of
gross violations of human rights, individual communications being excluded
therefrom. Furthermore, there was a need to combat the excessive
politicization of the procedure; it was not normal that the decisions taken at
the United Nations on the subject of human rights violations should relate
mostly to small countries and rarely to more powerful States, which escaped
criticism or censure. To make the confidential procedure more effective and
impartial, consideration might be given to expanding the Working Group on
Communications.
49. Even if the efficiency of the Sub-Commission needed to be improved, it
would be premature to think that that body’s standard-setting mission was
coming to an end. The Sub-Commission could continue to accomplish useful work
by avoiding any politicization and any duplication of the Commission’s work.
Pakistan attached considerable importance to the studies that were being
undertaken or envisaged by the Sub-Commission. In that regard, the Commission
and the Sub-Commission should re-examine the question of human rights in
situations of armed conflict, particularly in the case of struggles for
self-determination. The Sub-Commission should be called upon to develop
procedures to ensure respect for the humanitarian standards set forth in the
Geneva Conventions and the Protocols.
50. Mr. WILLE (Observer for Norway), speaking on behalf of the Nordic
countries, said that, in his address at the beginning of the session, the
Secretary-General of the United Nations had stressed the dramatic consequences
of internal armed conflicts from the standpoint of human rights, since they
posed a grave threat to the rules of international humanitarian law.
Accordingly, the Nordic countries welcomed the fact that, in December 1995,
the 26th International Conference of the Red Cross and Red Crescent had
adopted a resolution emphasizing the importance of respect for minimum
humanitarian standards in all situations by all the parties, without
discrimination. It was also encouraging to note that so many Governments and
competent intergovernmental and non-governmental organizations had transmitted
to the Secretary-General their comments on the Declaration of Minimum
Humanitarian Standards that had been adopted at Turku (Finland) in 1990. The
debate was far from closed and the Nordic countries therefore intended to
submit a draft resolution calling for the holding of a workshop which would be
attended by governmental and non-governmental experts from all regions in
order to study the problem more thoroughly.
51. Mr. DRZEWICKI (Observer for Poland) said that the idea of a declaration
of minimum humanitarian standards, to which the Commission had referred in its
resolution 1995/29, had already been supported by the OSCE countries
participating in the Budapest Summit in 1994. Poland therefore commended the
initiative recently taken by Switzerland, within the framework of OSCE, to
E/CN.4/1996/SR.23
page 14
convene a meeting of experts at Vienna on 13 and 14 February 1996 for a more
thorough study of "minimum standards of humanity", that being the term
proposed by the Swiss experts. In fact, international humanitarian law was
applicable to situations of armed conflict, but not to situations of internal
conflict. Moreover, most human rights instruments made explicit provision for
derogations from some fundamental rights in time of public emergency
threatening the life of the nation. Unfortunately, since the Second World
War, states of emergency had often been proclaimed without justification.
That, together with the fact that the principal instruments concerning human
rights and humanitarian law had not been ratified by all States and that
situations constituting neither peace nor armed conflict were multiplying,
with all the abuses that they implied, clearly demonstrated the need for a
declaration that would be applicable in all situations.
52. The Declaration did not set new standards; it merely reaffirmed the
applicability of the existing standards in all situations and by all States or
other bodies. That decentralization of responsibility for the observance of
humanitarian rules assumed crucial importance when the authorities were no
longer able to ensure that the rules were respected by their own agents. As
the International Committee of the Red Cross had emphasized in its reply
(E/CN.4/1996/80/Add.1), the Declaration sought to strengthen the protection of
individuals in situations of violence not covered by international
humanitarian law.
53. In conclusion, Poland was of the opinion that the Commission should
convene a workshop of governmental and non-governmental experts to help the
Secretary-General to submit, at the next session, an analytical report on the
question of the applicability of minimum humanitarian standards in all
situations in order to avoid the abuses that were committed under cover of the
principle of non-interference in the internal affairs of States.
54. Mr. VIGNY (Observer for Switzerland) said that his country attached great
importance to the question of minimum standards of humanity. In fact,
although the human person was protected in peacetime and during periods of
armed conflict by numerous instruments and by customary international law,
that protection seemed insufficient in some situations that were halfway
between peace and armed conflict, such as periods of internal disturbances,
tensions or latent conflicts. Sometimes a State was not a party to the
relevant international instruments; sometimes it took advantage of the
possibility of derogation from the guarantees provided for in human rights
instruments even when the disturbances affecting it had not reached the level
of gravity that justified the application of the common article 3 of the
Geneva Conventions and, at other times, it even took advantage of that
possibility by contesting the applicability of article 3. Again, an actor
other than the Government sometimes declared that he was not bound by the
obligations contracted by the State that he was combating. To remedy the
abuses to which those situations gave rise, there was a need for a political
declaration on minimum standards of humanity in order to supplement positive
law, lay down specific rules of conduct that were easily applicable by any
authority, person or any group of persons, and reaffirm the principles
contained in the relevant instruments. The standards envisaged should not be
subject to derogation and should be applicable in all circumstances and at all
times.
E/CN.4/1996/SR.23
page 15
55. The 53 Member States of OSCE which had met at Budapest in December 1994
had stressed the importance of such a declaration and, in its capacity as
President of OSCE, Switzerland had convened at Vienna, on 13 and
14 February 1996, an informal meeting which had focused on two topics: first,
the political and juridical need for a declaration and its relationship with
other standards, and second, the content and addressees of such a declaration.
The meeting had heard statements by Mr. Asbjørn Eide, a member of the
Sub-Commission, and Mr. Theodore Meron, an eminent international jurist.
56. As a co-sponsor of Commission resolution 1995/29, Switzerland supported
the idea proposed by Norway, on behalf of the Nordic countries, of a workshop
designed to make the international community more aware of the extremely
serious problems encountered in that field.
57. Mr. BONARD (International Committee of the Red Cross) said that, for a
long time, ICRC had been seeking new approaches to promote greater respect for
human values in situations involving internal disturbances or tensions that
were not covered by international humanitarian law. Unfortunately, ICRC
delegates in the field were often confronted with the forms of overt violence
that characterized such situations: detention, disappearances, ill-treatment,
torture, the taking of hostages, and so on. Hence, ICRC welcomed the proposed
convening of a workshop on the necessary strengthening of the protection of
individuals, while emphasizing that the primary aim should be to ensure
respect for the existing rules. ICRC would contribute to that initiative as
far as possible.
58. Ms. SPALDING (African Commission of Health and Human Rights Promoters
(CAPSDH)) paid tribute to the Sub-Commission’s valuable contribution to the
cause of human rights, which the Secretary-General of the United Nations had
emphasized while opening the present session. Of all the resolutions and
decisions the Sub-Commission had adopted in the previous year,
resolution 1995/17 on human rights and disability had been of the greatest
interest to CAPSDH, whose principal task consisted in helping the victims of
traumas or violence. Its strategy was to treat the persons concerned in their
social, cultural and political environment in order to maximize the results
obtained. In Ghana, CAPSDH was attending to the medical and psychological
needs of patients. Victims of the violence in Sierra Leone were being treated
in Guinea. There were also programmes for the victims of the clashes in
Rwanda, and a psychological assistance programme in Uganda. In Eritrea, which
had been independent since 1993, assistance was needed by a large number of
widows, orphans and victims of various acts of violence, particularly the
40,000 disabled civilians and the 15,000 disabled veterans, one third of whom
were women. The authorities were collaborating in those rehabilitation and
reintegration programmes. In Guinea, the practice of torture had left
thousands of victims in need of assistance. In view of the grave consequences
of such acts, which violated the physical and psychological integrity of
individuals and flouted the universal rights of peoples, CAPSDH appealed to
the international community to take action and provide the necessary
resources.
59. Mrs. SCHREIBER (International Movement against All Forms of
Discrimination and Racism) said that the annual session of the Sub-Commission
was a valuable contribution to the work of the Commission on Human Rights, as
E/CN.4/1996/SR.23
page 16
it was the principal forum in which the weak, the poor, the excluded and all
those who were being discriminated against could make their voices heard.
60. Her organization was particularly concerned at the plight of the millions
of women and young girls throughout the world who were the victims of
practices similar to slavery, such as the traffic in labour and prostitution,
particularly in regions faced with serious economic difficulties. Even
children were not spared. Last year, during the NGO forum held on the
occasion of the World Conference on Women, the International Movement against
All Forms of Discrimination and Racism had organized a workshop on the traffic
in women in Asia. The Secretary-General’s report to the General Assembly on
that subject (A/50/369), which outlined all the measures taken by bodies
defending human rights, was largely complete and particularly well-documented.
However, it might be wondered whether positive results could be obtained in
the absence of a more effective mechanism to monitor the application of the
Convention on the Elimination of All Forms of Discrimination against Women.
61. Of the many violations of fundamental rights to which women fell victim,
one of the most horrifying was undoubtedly the sexual slavery imposed on large
numbers of women in wartime. The International Movement against All Forms of
Discrimination and Racism fully supported the conclusions of the Special
Rapporteur on violence against women, particularly those concerning Japan’s
responsibility for acts committed during the Second World War.
62. Lastly, she referred to the problem of indigenous peoples whose
traditions, cultural heritage and even lives were threatened by aggressive
policies of economic expansion. The industrial projects that might prejudice
the rights and living conditions of those populations should be undertaken
with every possible precaution and should show due regard for the human
factor.
63. Ms. FALLON (Franciscans International) supported the Sub-Commission’s
working paper on systematic rape, sexual slavery and slavery-like practices
during periods of armed conflict and hoped that the Commission on Human Rights
would endorse the Sub-Commission’s decision to appoint Mrs. Linda Chavez as
Special Rapporteur on that question.
64. In that field, Japan’s practices during the Second World War had rightly
been condemned and she hoped that the victims would soon be awarded
appropriate reparation. However, those events of long ago should not
overshadow the violations of fundamental rights to which women were still
being subjected in armed conflicts.
65. The Commission should urgently adopt a resolution to ensure the future
protection of all women in wartime and to offer the victims the reparation to
which they were entitled.
66. Mr. PUNJABI (Himalayan Research and Cultural Foundation), commenting on
two of the issues raised in the Sub-Commission’s report (E/CN.4/1996/2-
E/CN.4/Sub.2/1995/51), said that, in regard to protection of the heritage of
indigenous peoples, the greatest danger threatening the cultural heritage of
those peoples was the policy pursued by some States, which were attempting to
impose, in their territory, a socio-political uniformity based on religion.
E/CN.4/1996/SR.23
page 17
Such a situation was clearly portrayed in the report on the situation in
Pakistan, which had been presented by Mr. Amor, the Special Rapporteur, in
accordance with Commission on Human Rights resolution 1995/23.
67. With regard to contemporary forms of slavery, particularly systematic
rape and sexual slavery during periods of armed conflict, it might have been
better to place greater emphasis, as had been done by Amnesty International in
its report for 1995 on the situation of women in Afghanistan, on the danger
arising in that regard from the increasing participation by private militias
and mercenaries in those conflicts.
68. The Himalayan Research and Cultural Foundation hoped that the Commission
would give due consideration to those two aspects when formulating a long-term
strategy to safeguard the fundamental rights of indigenous peoples and women.
69. Mr. RYONG (Liberation) said he supported the Sub-Commission’s working
paper on sexual slavery and slavery-like practices in wartime, particularly in
so far as it concerned the crimes committed by Japan during the Second World
War. In spite of the efforts made by the Japanese Government to hide the
material and documentary evidence relating to those crimes, they had been
recognized by the international community, and tribunals constituted by the
allied forces had found 30 named Japanese war criminals guilty of forcing
persons to prostitute themselves. The Japanese Government was still claiming
that, by virtue of its colonial rule over Korea, it was perfectly entitled to
recruit forced labour and sexual slaves in that country. However,
paradoxically, it had also established a private fund to compensate the
victims in an attempt to evade its responsibility. That attitude was an
affront to peace and human rights and detracted from the dignity and honour of
the victims. The Liberation movement called upon the Commission to ensure
respect for the provisions of the Sub-Commission’s resolution concerning
systematic rape and sexual slavery during periods of armed conflict and to
continue its investigation of the subject.
70. Ms. DEGENER (Disabled Peoples International) said that her organization
welcomed Sub-Commission resolution 1995/17, on human rights and disability, as
well as the part of resolution 1995/16 concerning the traffic in organs, to
which disabled children and patients suffering from mental illness were most
likely to fall victim. However, it was regrettable that the problems of
disabled persons had not been taken into consideration in several other fields
studied by the Sub-Commission or the Commission.
71. For example, several studies showed that disabled persons were more
likely than others to be subjected to sexual violence and racial
discrimination. With regard to arbitrary detention, the forcible placement of
disabled persons in institutions due to the lack of the resources needed to
provide them with home care was tantamount to incarcerating those persons,
even though they had not been found guilty of any crime. Some current bills
of law which sought to deny disabled persons the right to marry or procreate,
on purely economic grounds, could be likened to euthanasia and were ominously
reminiscent of the Nazi era.
72. Disabled Peoples International urged the Commission to give due attention
to those violations of human rights and to ensure that the recommendations and
E/CN.4/1996/SR.23
page 18
plans of action adopted at the World Conference on Human Rights and the World
Conference on Women were put into effect. As the Sub-Commission had
acknowledged in resolution 1995/17, the Standard Rules on the Equalization of
Opportunities for Persons with Disabilities were not binding on States.
Moreover, the monitoring mechanism was being hampered by the lack of financial
resources and had therefore been attached to the Commission on Social
Development, which tended to perpetuate the misconception that disability was
more a problem of social development than a problem of human rights.
73. At all events, the Standard Rules on the Equalization of Opportunities
for Persons with Disabilities could never be a substitute for a real
international convention prohibiting all discrimination based on disability
and establishing clearly-defined rules concerning violations of human rights
and other contemporary threats to the lives of disabled persons. Disabled
Peoples International therefore urged the Commission to request the
Sub-Commission to draft up such a convention.
74. Ms. SILWAL (World Peace Council) said that, of the inalienable rights of
the human person, the right to freedom from want, which was a corollary of the
right to development, was unfortunately being pushed into the background.
75. Moreover, there was a tendency to forget that the very essence of
democracy was the possibility for all citizens, irrespective of their
political beliefs or their race, religion or gender, to enjoy equal
opportunities. Pakistan, which regarded itself as a democracy, had adopted a
legal and constitutional structure which, in effect, codified and
institutionalized the discrimination that was being practised against that
country’s Christian, Hindu, Ahmadi, Zikri and Shi’ite minorities. No member
of those religious minorities had the right to be elected to the post of head
of State. The Sindhi community was among those most seriously affected by
persecution on the part of the Pakistani Government. Several NGOs had sounded
the alarm and declared that the Sindhi civilization was threatened with
extinction by the terrorism, arms smuggling, drug trafficking and systematic
repression to which it was being subjected.
76. The World Peace Council appealed to the international community and to
all Governments to immediately condemn the legal and constitutional structures
that permitted and encouraged discrimination based on religion, race or creed.
77. Mrs. PAK Song Ok (International Federation of Women in Legal Careers)
said she attached great importance to the resolutions adopted at the fortyseventh
session of the Sub-Commission on sexual slavery during periods of
armed conflict and on forced labour as a contemporary form of slavery.
78. Those resolutions had a bearing on the crimes committed by Japan during
the Second World War and during its 40-year colonial rule in Korea. In
addition to imposing forced labour on 6 million young Koreans, it had also
forced 200,000 women to serve as sexual slaves for the Japanese army. Japan
was currently attempting to exonerate itself from those crimes by expressing
vague "apologies" and establishing a private fund to compensate the victims.
79. The international community, including the thousands of peace-loving
Japanese who respected human rights, could not be satisfied with that
E/CN.4/1996/SR.23
page 19
solution. Japan must officially make amends, in accordance with the rules of
international law and United Nations resolutions, for the crimes it had
committed. In other words, the compensation that it was offering to the
victims should be fair compensation awarded by the State and not merely
private compensation. The International Federation of Women in Legal Careers
called upon the Commission to endorse the resolutions adopted at the fortyseventh
session of the Sub-Commission and to take effective measures to compel
Japan to implement them unconditionally.
80. Mr. EYA-NCHAMA (African Association of Education for Development)
submitted a declaration on behalf of several NGO signatories which were
concerned at the proposal to the effect that the Sub-Commission should in
future hold biennial instead of annual sessions. Such a decision would be a
severe blow to the cause of human rights.
81. The Sub-Commission’s task was primarily to act as a think-tank consisting
of independent experts that would help to develop a partnership between the
Commission on Human Rights, the Secretariat and the NGO community. Its
working methods had recently been rationalized and improved to that end. It
was expected to play an increasingly important coordinating role not only in
regard to the United Nations Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities but also in regard to
the instruments that were currently being elaborated in that field by the
Council of Europe and the Organization for Security and Cooperation in Europe.
Accordingly, the NGO signatories urged the Commission on Human Rights to
reaffirm the importance of the Sub-Commission’s role as an integral part of
the United Nations programme in the field of human rights and to recommend to
the Economic and Social Council that the Sub-Commission continue, during its
regular annual sessions, to fulfil its indispensable function of promoting and
protecting human rights.
82. Mr. MAJID TRAMBOO (International Human Rights Association of American
Minorities) welcomed the Sub-Commission’s report on its forty-seventh session,
particularly draft decision 3 to appoint a Special Rapporteur on the
recognition of gross and large-scale violations of human rights perpetrated on
the orders of Governments or sanctioned by them as an international crime.
Such large-scale violations were being committed in Kashmir by the Indian
Government in violation of article 2 of the Convention against Torture.
Detainees were being interrogated in centres where they were subjected to
cruel treatment that had been documented principally by Amnesty International
and they were left without care to the extent that, in some cases, amputations
became necessary. That had happened, among others, to two young persons,
Nazir Ahmad Sheikh and Bashir Ahmad Mir, who had been arrested and tortured by
the Indian army in the early part of 1995.
83. In Kashmir, repression was synonymous with arrests, torture and
disappearances. The bodies of missing persons were often found in the street
a few days later. The brutal and ruthless offensive that New Delhi was
conducting against the Kashmiris, simply because the Kashmiris were claiming
the right to self-determination, exceeded all the limits of barbarity. The
International Human Rights Association of American Minorities therefore urged
the Commission to consider the possibility of establishing a body to
investigate all cases of torture that were reported in Jammu and Kashmir.
E/CN.4/1996/SR.23
page 20
84. Mrs. Chung-Ok YUN (World Council of Churches, Commission of the Churches
on International Affairs) drew attention to a matter of grave concern to her
organization, namely the question of systematic rape and sexual slavery during
periods of armed conflict, which formed the subject of a working paper
submitted to the Sub-Commission by Mrs. Linda Chavez (E/CN.4/Sub.2/1995/38)
and of a Sub-Commission resolution. Mrs. Chavez had given an exact
description of the sexual slavery practised by Japan during the Second World
War. Having been born in Korea in 1925 and, consequently, having experienced
the Japanese invasion, she knew the implications of that sexual slavery, which
she had fortunately escaped. Young girls and young women had been recruited
by force or deception and treated as "military supplies" by the Japanese.
Although many had died, about 160 of them were still alive. What they were
today demanding from the Japanese Government was tangible reparation and not
merely official apologies.
85. The World Council of Churches urged the Commission to adopt the Sub-
Commission’s draft decision 1 and endorse the appointment of Mrs. Linda Chavez
as Special Rapporteur with the task of undertaking a study on the situation in
regard to systematic rape during periods of armed conflict not only in the
past but also at the present time.
86. The CHAIRMAN said that consideration of agenda item 15 had been
concluded.
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION
OR IMPRISONMENT, IN PARTICULAR:
(a) TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT;
(b) STATUS OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN
OR DEGRADING TREATMENT OR PUNISHMENT;
(c) QUESTION OF ENFORCED OR INVOLUNTARY DISAPPEARANCES;
(d) QUESTION OF A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT
(agenda item 8) (E/CN.4/1996/5, 28, 29 and Add.1, 2 and 3, 30, 31 and Add.1,
32 and Add.1, 33 and Add.1, 34, 35, Add.1 and Corr.1 and Add.2, 36, 37, 38, 39
and Add.1 and 2, 40 and Add.1, 41, 121, 122, 123, 124, 133 and 143;
E/CN.4/1996/NGO/10, NGO/24, NGO/25, NGO/26, NGO/36, NGO/46, NGO/55 and NGO/61;
E/CN.4/Sub.2/1995/20 and Corr.1 and Add.1 and 30 and Add.1; A/50/512)
87. Mr. VARGAS PIZARRO (Costa Rica) (Chairman/Rapporteur of the Working Group
on the draft optional protocol to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment) presented the Working
Group’s report and pointed out that the purpose of the draft optional
protocol, which was based on a text submitted by the Costa Rican Government,
was to institute a system of regular visits to persons deprived of liberty in
order to protect them from torture and other ill-treatment. Its fundamental
E/CN.4/1996/SR.23
page 21
principle was confidentiality in relations with the State party with a view to
establishing dialogue between the latter and the international monitoring
body.
88. Since its establishment in 1992 under the terms of Commission on Human
Rights resolution 43/92, the Working Group had been actively engaged in the
preparation of the draft. At the fourth session, held at Geneva from
10 October to 10 November 1995, it had concluded the first reading of the
text; articles 14 to 21, as well as the text resulting from the amalgamation
of articles 10 and 11, had been considered by an informal drafting group and
adopted at a plenary meeting. Thirty States members of the Commission,
18 non-member States, observer countries such as Switzerland and
representatives of various NGOs, including the Association for the Prevention
of Torture, Amnesty International and the International Commission of Jurists,
as well as experts such as Mr. Bent Sorensen, representing the Committee
against Torture, had participated in the work.
89. The members of the Working Group felt that a second reading of the text
was necessary with a view to final adoption within a reasonable period of
time. Accordingly, he requested the Commission to approve the report of the
Working Group and to renew the Group’s mandate in the same way as in previous
years. The Group had embarked on its work at a historic moment which
coincided with the proclamation of the Decade of International Law by the
General Assembly of the United Nations, and it was to be hoped that the end of
the Decade would be marked by the adoption of a new and effective instrument
of international law to combat torture.
90. Mr. BUSDACHIN (Transnational Radical Party), referring to the report
(E/CN.4/1996/35) submitted by Mr. Nigel S. Rodley, the Special Rapporteur on
torture, expressed his organization’s deep concern at the ongoing practice of
torture in a number of countries, particularly in Kosovo and China. In
Kosovo, physical torture was used systematically against all groups, including
women, children and elderly persons. According to an organization for the
defence of human rights in Prishtina, more than 10,000 Albanians had been
subjected to torture or other cruel treatment. The policy pursued by the
Yugoslav authorities in violation of their own Constitution and the Convention
against Torture could be likened to a new form of ethnic cleansing.
91. With regard to China, the situation was particularly serious in Tibet
and, in July 1995, the Special Rapporteur had drawn the attention of the
Chinese Government to the acts of torture to which persons arrested for
political reasons were being subjected. For its part, Amnesty International
had reported an intensification of repression in rural areas of Tibet, as well
as numerous raids on monasteries. The enforced disappearance of the new
Panchen Lama, a six-year old child, was a perfect illustration of the human
rights situation in China.
92. The Transnational Radical Party urged the Commission to take into
consideration, in its thematic resolutions, the human rights situation in
those countries, particularly in China, and to appoint a special rapporteur to
investigate the matter.
E/CN.4/1996/SR.23
page 22
93. Lastly, he drew the Commission’s attention to the increasing number of
death sentences in many countries and to some methods of execution that were
of a particularly cruel nature. Although China was the country in which the
largest number of executions took place, it should not be forgotten that the
number had increased dramatically in recent years in the United States. It
was particularly disturbing in as much as thousands of persons who had been
sentenced to death sometimes waited more than 10 years before being executed.
For that reason, the Transnational Radical Party, in conjunction with the
International Campaign for the Abolition of the Death Penalty (Hands Off Cain)
called upon the Commission to consider the death penalty a cruel and inhuman
punishment. The Member States, and particularly the members of the European
Union, should be requested to submit a draft resolution on capital punishment
at the next session of the General Assembly.
94. Ms. BRIE (France-Libertés: Fondation Danielle Mitterrand) drew the
Commission’s attention to the human rights violations that were committed when
states of emergency were in force. As the Special Rapporteur on the
independence of judges and lawyers had indicated in his report
(E/CN.4/1995/39), decrees proclaiming a state of emergency often entailed the
restriction or suspension of judicial controls. That was precisely the case
in Bahrain, where a legislative decree on State security authorized the
handing down of judgements without any guarantee of a defence. According to
the lists in the possession of France-Libertés, 1,106 persons were currently
detained for crimes of opinion and many of them were minors from 10 to 18
years of age. More than anyone else, those young persons were exposed to
physical and sexual abuse. She also referred to the case of several young
women whose places of detention were being kept secret and some of them had
been tortured, in violation of the State’s Constitution, during previous
arrests. France-Libertés was also concerned about the fate of three
well-known persons who had been transferred to a military hospital. She
called on the Commission to request the Special Rapporteur on torture to
undertake an investigative field mission there as soon as possible and to give
particular attention to the situation of women and minors detained in Bahraini
prisons.
95. France-Libertés was also concerned at the information that it had
received concerning executions without trial, or after unfair trials, in the
Islamic Republic of Iran. For example, on 1 March 1996, two persons had been
executed without trial after being under detention and ill-treated for a whole
year. France-Libertés also possessed a partial list of 237 Kurdish political
prisoners, 164 of whom had still not been tried, although some had been held
since 1980. She took note of the visit by Mr. Maurice Dandy Copithorne, the
new Special Rapporteur on Iran, and that by the Special Rapporteur on
religious intolerance, who had been able to interview the three women accused
of murdering Iranian Christian priests. The confessions by the three women
raised doubts about the persons who had actually ordered those murders.
France-Libertés requested the Commission to urge the Iranian Government to
take the measures provided for in articles 2, 6, 9 and 14 of the International
Covenant on Civil and Political Rights and to sign and ratify the Convention
against Torture.
96. The resurgence of repression in Tunisia against members or supporters of
political parties was also disturbing. She referred, in particular, to the
E/CN.4/1996/SR.23
page 23
cases of Hamma Hammami, the leader of the Tunisian Communist Workers’ Party,
Mustapha Ben Djaffar, the former Vice-President of the Tunisian Human Rights
League, Moncef Marzouki and other persons, who had all been imprisoned, placed
under surveillance and even tortured for ideological reasons. Alya Chammari,
the wife of a parliamentary representative of the legal opposition, had been
harassed by the police and Mr. Najib Hosni, a lawyer specializing in the
defence of human rights, had been arrested on 15 June 1994 and tortured. The
France-Libertés Foundation was concerned at the fact that the Tunisian
Government was using the struggle against religious fundamentalism as a
pretext to muzzle any form of opposition. It therefore called on the
Commission to make every effort to remedy the situation.
97. Mr. SAFA (Arab Organization for Human Rights) said that he had come from
southern Lebanon for the specific purpose of acquainting the Commission with
the situation of the Lebanese detainees in Israeli prisons. In 1995, as a
result of international pressure, the International Committee of the Red Cross
had been able to visit those prisons and report to the international community
on the ill-treatment that was being inflicted on the detainees. However, that
had not led to any improvement in the situation: mothers no longer recognized
their sons due to the extent to which they had become emaciated; and sons, who
had lost their memory as a result of blows or depression, no longer recognized
their mothers. The United Nations doctor who had visited the detainees had
testified to the fact that they had been subjected to electric shocks and
tortured. However, the Israeli authorities were not providing care for the
detainees who had been ill-treated or simply fallen ill, in total disregard of
article 12 of the Geneva Conventions and all the provisions of the Third
Convention relative to the Treatment of Prisoners of War.
98. In fact, the Israeli authorities regarded those detainees as hostages who
would languish in prison without being brought to trial. The Commission
should once again alert international public opinion and form an official
visiting group that would be in a position to demand vociferously the closure
of those prisons, the release of the detainees and the handing over to ICRC of
the remains of the detainees who had died.
99. Mr. WAREHAM (International Association against Torture (IAAT) referred to
the question of the human rights of all persons subjected to any form of
detention or imprisonment, with particular reference to the Republic of Korea,
Chile and the United States of America.
100. In the Republic of Korea, the Government seemed to be on the right track,
as indicated by Mr. Hussain, the Special Rapporteur, in his report
(E/CN.4/1996/39/Add.1), although the progress noted in regard to protection of
human rights remained inadequate. The Government should repeal the
National Security Act, under which persons could still be imprisoned
merely for exercising their right to freedom of thought and expression.
The Government should also authorize repatriation to the Democratic People’s
Republic of Korea of the former prisoners of war who had now been incarcerated
for more than 30 years. Moreover, the violent manner with which the
authorities of the Republic of Korea had suppressed recent protest
demonstrations was alarming.
E/CN.4/1996/SR.23
page 24
101. In Chile, after six years of democratic government, there were
still 122 political prisoners (101 men and 21 women), the vast majority of
them tried by military courts. Hence, as had been the case under the
dictatorship, the liberty and even the lives of many Chileans were still in
the hands of the armed forces. The civilian authorities bore prime
responsibility for allowing those political prisoners to be subjected to
deplorable conditions of detention without any legal defence. The Commission
should remind the Chilean Government that it was under an obligation strictly
to respect the rights of political detainees.
102. In the United States of America, the actual situation belied that
country’s claim to be a model of democracy. The United States was becoming a
police State in which examples of police violence and corruption were
proliferating. Moreover, although the United States had ratified the
International Covenant on Civil and Political Rights, the Administration, at
both the federal and state levels, seemed to be increasingly in favour of
enforcing the death penalty and did not hesitate to contest the independence
of judicial bodies when the latter attempted to curb that trend. Furthermore,
recent legislation had almost totally eliminated any discretion which judges
had to pass sentence on the basis of a number of factors relevant to the case
in question. It was not surprising, therefore, that more than 1,100,000
persons were currently detained in the federal and State prisons, in addition
to almost 500,000 others who were held in local jails. That overcrowding
would inevitably lead to riots in those penal institutions. The situation was
partly attributable to the way in which the United States authorities treated
their unacknowledged political prisoners and prisoners of war. For example,
their refusal to abolish the death penalty had made Mumia Abu Jamal the
world’s most famous political prisoner at the present time: although his
execution had been postponed, his sentence had still not been commuted.
103. In the view of IAAT, the Commission, by turning a blind eye to the human
rights violations which were thus being committed by some Member States, was
undermining the progress that it had made in that field for the benefit of
all.
104. Mr. CHERIF (International Federation of Human Rights (FIDH)) referred to
the consequences of the persistence, in some countries, of states of emergency
and of the phenomenon of impunity.
105. In Egypt, human rights and fundamental freedoms remained a dead letter
due to the state of emergency that had been in force for 15 years and under
which almost 17,000 persons were being detained arbitrarily. In the prisons
and police stations, torture was practised as a matter of policy and, in 1995,
at least 20 detainees had died under torture or for lack of medical care. In
Syria, the state of emergency had been in force since 1963 and had been
reinforced by the omnipresence of extrajudicial procedures and the
predominance of emergency legislation. Thousands of prisoners of conscience
had been judged by the State Security Court and 2,700 prisoners of conscience
were still detained in Syrian jails. For almost 5 years, 10 human rights
militants had been detained simply for claiming the right to form an
organization to defend human rights. In Lebanon, freedom of opinion and
expression was being systematically suppressed by the Government, ostensibly
in order to "safeguard public order". The mission to investigate the fate of
E/CN.4/1996/SR.23
page 25
missing persons that had recently been undertaken by FIDH, acting in
conjunction with other NGOs, had not even been received by the authorities.
In Tunisia, FIDH had recorded systematic violations of the right to a fair
trial, the right to physical integrity and freedom of opinion, expression and
movement and was concerned at the impunity enjoyed by the perpetrators of
those violations.
106. In Peru, the Amnesty Act and its implementing regulations had instituted
impunity as an official State policy. The practice of torture and arbitrary
detention was continuing, as were enforced disappearances, extrajudicial
executions and death threats against all those who opposed that legislation,
particularly defenders of human rights, including the leaders of FIDH. In
Sri Lanka, emergency legislation likewise remained in force. Under the
so-called "Prevention of Terrorism Act", the authorities enjoyed virtual
discretionary power to arrest and hold in custody anyone who could be
reasonably suspected of illegal activities. Some emergency regulations were
in flagrant contradiction with the International Covenant on Civil and
Political Rights, which Sri Lanka had ratified.
107. In Viet Nam, FIDH had noted that impunity prevailed for perpetrators of
human rights violations. In 1995, the number of arbitrary arrests had
multiplied at the expense of dissidents of all types and the conditions under
which prisoners of conscience were held were still incompatible with
international standards. Finally, with regard to Northern Ireland, FIDH
regretted that the Government of the United Kingdom had not responded to the
appeals by the Human Rights Committee and the Committee against Torture, which
had called on it to repeal the emergency legislation. That same Government
had remained indifferent to the complaints brought before it, particularly in
regard to members of the security forces who were involved in schemes to
intimidate defence lawyers.
108. Ms. GRAF (International League for the Rights and Liberation of Peoples)
pointed out that the States Members of the United Nations which had met at
Vienna during the World Conference on Human Rights had called for abrogation
of the legislation under which the perpetrators of human rights violations
enjoyed impunity. That had not prevented Peru from adopting the Amnesty Act
of 16 June 1995 for military personnel, policemen and civilians who had
participated in such violations from 1980 to 1995, nor had it prevented Peru
from supplementing the Act with implementing regulations that precluded any
attempt to circumvent it in order to restore law and justice. The Peruvian
Government had thereby made a mockery of resolution 1995/38 in which the
Commission placed States under an obligation to "conduct prompt and impartial
inquiries in all circumstances" and to prosecute the persons responsible for
enforced disappearances.
109. Likewise, in Argentina, under two Amnesty Acts adopted in 1986 and 1987
the persons responsible for 30,000 disappearances and thousands of murders had
been exonerated from their crimes. A criminal action that had been brought in
Italy in 1983 against the Argentine military personnel responsible for the
disappearance or summary execution of dozens of Italian citizens during the
dictatorship was consequently being obstructed by the wall of impunity that
had been erected by the Argentine authorities. The International League for
the Rights and Liberation of Peoples called upon the Commission to strongly
E/CN.4/1996/SR.23
page 26
urge the Argentine Government to collaborate with the Italian judicial
authorities on that matter.
110. Mr. BHAN (International Institute for Peace) noted with concern that the
practice of the wrongful detention of innocent persons was becoming more
widespread and was even being aggravated as a result of the hostage-taking to
which terrorist groups were resorting more frequently. For example, in 1995,
the Sub-Commission on Prevention of Discrimination and Protection of
Minorities had condemned the murder, in Jammu and Kashmir, of a Norwegian
hostage by the Al-Faran group, as well as the death threats that the same
group had made against four other hostages. Those four had still not been
released. It had become obvious that the Al-Faran group, which was calling
for the release of 21 of its militants who had been arrested by the Indian
security forces, was receiving aid and support from Pakistan. The Commission
should not hesitate to recommend that the Security Council and
General Assembly of the United Nations sanction the countries that were
serving as bases for terrorist and mercenary organizations which were
unashamedly proclaiming in the media of the host country that they were
engaging, with impunity, in violent action against third countries.
111. Ms. KIM (Pax Romana), speaking on behalf of Pax Romana and 14 other NGOs
seeking to protect human rights in the region of Asia and the Pacific, said
that Asia no longer guaranteed impunity for the perpetrators of human rights
violations since two former Presidents of the Republic of Korea had been
arrested and judged for corruption and for participating in the massacre at
Kwangju in May 1980. As in the case of the Philippines after the downfall of
Marcos, the Republic of Korea had thus taken steps to punish the persons
responsible for crimes against humanity. Accordingly, there was cause to hope
that the persons responsible for the Tienammen massacre in China in 1989, the
Santa Cruz massacre in East Timor in 1991, the bloody repressions in Burma
since 1988 and the gross violations of human rights in Thailand, Sri Lanka and
Russia would eventually be brought to justice.
112. In Asia, impunity had hitherto been closely linked to a certain national
security ideology for which the big Powers - the United States in the Republic
of Korea, Indonesia in East Timor and China in Tibet, for example - had not
hesitated to sacrifice many human lives. It was to be hoped that the abusive
practice of impunity would henceforth give way to democracy and respect for
human rights. The Asian Governments would do well to endow themselves with a
mechanism which would enable them to establish responsibilities and call to
account and bring to justice the perpetrators of human rights violations and
crimes that had been committed in the past.
113. Ms. LEEDOM-ACKERMAN (International Pen) said that, throughout the world,
national security and anti-terrorist legislation was still being used against
writers and journalists who were merely exercising their right to freedom of
expression as guaranteed under article 19 of the Universal Declaration of
Human Rights. Frequently, it was the lack of precision in the interpretation
of that type of legislation that enabled it to be used to criminalize
expressions of opinion, as the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression had rightly
pointed out in his report (E/CN.4/1996/39/Add.1) on the subject of the
National Security Law that was still in force in the Republic of Korea. It
E/CN.4/1996/SR.23
page 27
was regrettable that the Special Rapporteur had been obliged to postpone his
visit to Turkey, where many writers and journalists were being held in
detention under article 8 of the Anti-Terror Law because they had referred to
the Kurdish question in their articles and because the Turkish Government felt
entitled, by virtue of the limitations that could be placed on article 19 of
the International Covenant on Civil and Political Rights, to detain all those
who threatened the "indivisible unity of the State". The Special Rapporteur
should also seek permission to visit Syria, where eight writers and
journalists had been sentenced to terms of up to 15 years’ imprisonment,
mostly by the Supreme State Security Court, which was not independent. The
desire of States to protect their national security and combat terrorism
should not go to the extent of denying their citizens the right to freedom of
expression.
The meeting rose at 8.30 p.m.