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Human Rights Council decides to dispatch independant fact finding mission to investigate Isareli attack on humanitarian boat convoy

MIDDAY

2 June 2010

Holds Dialogue with Experts on Independence of Lawyers and Human Rights while Countering Terrorism, Hears Presentation of Joint Study on Secret Detention

The Human Rights Council in its midday meeting adopted a resolution on the attack by Israeli forces against the humanitarian flotilla bound for Gaza in which it condemned in the strongest terms the outrageous attack by the Israeli forces which resulted in the killing and injuring of many innocent civilians from different countries, and decided to dispatch an independent international fact finding mission to investigate violations of international law resulting from the Israeli attack.

The Council adopted a resolution, by a vote of 32 in favour, three against, and nine abstentions, in which it deeply deplored the loss of life of innocent civilians and expressed its deepest sympathy and condolences to the victims and their families. The Council called on Israel to fully cooperate with the International Committee of the Red Cross to seek and provide information on the whereabouts, status and condition of the detained and injured persons and demanded that Israel release all detained men and material and facilitate their safe return to their homelands. It also called on Israel to immediately lift the siege on occupied Gaza and other occupied territories.

Pakistan, on behalf of the Organization of the Islamic Conference and the Arab Group, introduced the resolution. Israel and Palestine spoke as concerned countries. Speaking before and after the resolution was adopted were the United States, France, United Kingdom, Netherlands, Norway and Nicaragua.

During the meeting, the Council also held an interactive dialogue with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It also heard the presentation of a joint study on Global Practices of Secret Detention in the Context of Counter-Terrorism prepared by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Working Group on arbitrary detention and the Working Group on enforced disappearances.

Gabriela Carina Knaul de Albuquerque e Silva, Special Rapporteur on the independence of judges and lawyers, said that her first thematic report highlighted the importance of continuing international human rights law education for judges, lawyers, public defenders and prosecutors as a guarantee of their independence. The lack of appropriate capacity-building initiatives affected the capabilities of judges and lawyers to discharge their function effectively and had resulted in a discernible gap between the legal education offered and the outcomes of the application of international human rights law in specific domestic cases. The Special Rapporteur noted the different challenges for the Member States originating from different systems of law, and said that in countries affected by armed conflict particular attention should be given to continuing learning on transitional justice mechanisms especially designed to address issues of gross violations of human rights.

Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said that his report was a compilation of good practices on legal and institutional frameworks and measures that ensured respect for human rights by intelligence agencies while countering terrorism, including on their oversight. His previous report had given a factual account of how the post-9/11 wave of counter-terrorism measures had transformed the role of intelligence agencies from activities concentrated on unwanted operations by other States to countering terrorism. New problems had emerged in this transformation, as the international cooperation between intelligence agencies had greatly intensified and as such cooperation very often formed an unregulated activity that escaped existing oversight mechanisms. The report consisted of 35 identified elements of good practices.

In the interactive dialogue on the independence of judges and lawyers, speakers said the quality of the administration of justice had a direct impact on democracy and the development of States. Education and training promoted independence for every person, regardless of profession or career, and where it came to judges and lawyers, human rights education and training contributed to their independence and therefore to a separation of the State powers ensuring the rule of law. It was therefore indispensable for States to provide ongoing training for judicial workers, in mandatory form. The report established the need for ongoing training for magistrates, judges and lawyers within a human rights framework and measures to be taken to strengthen legal education for those working within the justice system, especially court appointed defence lawyers.

Concerning the promotion and protection of human rights while countering terrorism, speakers welcomed the focus on the role of intelligence agencies and surveillance polices in the fight against terrorism and were concerned about observations suggesting that the lack of oversight and political and legal accountability had facilitated illegal activities by intelligence agencies. National security should never be a pretext to abandon the commitment to the rue of law. The work collecting and identifying best practices was a complex task, and the responsibility to protect and promote the rights of all citizens was very important. It was essential not to let the fear of terrorism override the need to respect international human rights law and international human rights, as they could be complimentary. The Special Rapporteur should elaborate on the recruitment process of the oversight mechanism.

Speaking in the interactive dialogue were Pakistan on behalf of the Organization of the Islamic Conference, Norway, Russian Federation, Denmark, European Union, Ireland, Switzerland, Mexico, Indonesia, Plurinational State of Bolivia, Belgium, Costa Rica, Bosnia and Herzegovina and China.

The joint report on Global Practices of Secret Detention in the Context of Counter-Terrorism was introduced by three of the four Special Procedures who participated in preparing it.

Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said the Special Rapporteurs and the members of the Working Groups strived for a global study, mapping the historical background of secret detention, the post 9-11 emergence and surfacing of a new wave of such practices and the way in which secret detention continued to be resorted to in all corners of the world.

Manfred Nowak, United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said the joint study was global in nature, and was an attempt to give a general overview of the practice of secret detention in the context of counter-terrorism in all regions of the world. Within its global nature, the main objective of the study was to illustrate, in concrete terms, what it meant to be secretly detained, how secret detention in the context of counter-terrorism could facilitate the practice of torture or ill-treatment, and how secret detention had left a life-lasting mark on the victims as well as on their families.

Shaheen Ali, Vice-Chair of the Working Group on arbitrary detention, said that secret detention was irreconcilably in violation of international human rights and humanitarian law. Despite these unequivocal norms, secret detention continued to be used in the name of countering terrorism around the world and had been reinvigorated by the so-called global war on terror. The recommendations of the joint study included an explicit prohibition of secret detention, and the keeping of detention records. Internal inspections as well as independent mechanisms should have timely access to all places where persons were deprived of their liberty.

The interactive dialogue on the joint study on secret detention will be held on 3 June. The interactive dialogue with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism will continue on 3 June.

The Council today is holding a full day of meetings from 9 a.m. to 6 p.m. During its afternoon meeting, it will hold a panel discussion on “giving voice to victims of trafficking”.

Documentation

The Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Carina Knaul de Albuquerque E Silva (A/HRC/14/26) examines the need for continuing education in international human rights law for magistrates, judges, prosecutors, public defenders and lawyers. The report stresses the interconnected nature of the rule of law, democracy, the principle of separation of powers and the independence of the judiciary and the independence and impartiality of magistrates and judges. It refers to efforts that have already been undertaken by the international community to identify the need for continuing legal education and training to enable magistrates, judges and lawyers to apply international human rights standards, norms and principles in the consideration of domestic cases.

Communications to and from Governments (A/HRC/14/26/Add.1) presents summaries of the urgent appeals and allegation letters transmitted by the Special Rapporteur to governmental authorities between 16 March 2009 and 15 March 2010, and of press releases issued during the same reporting period. The report also includes summaries of the replies received from several States concerned between 1 May 2009 and 10 May 2010.

Mission to Colombia (A/HRC/14/26/Add.2) is currently unavailable. 6/01/10

The Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Martin Scheinin (A/HRC/14/46) presents a compilation of good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight, as requested by the Human Rights Council and prepared by the Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism.

Written submissions by Governments to the questionnaire of the Office of the High Commissioner for Human Rights related to the study on good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight, prepared by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (A/HRC/14/46/Add.1) contains the questionnaires and written submissions by Governments that were used in the preparation of the report.

Presentation of Reports on Independence of Judges and Lawyers and on Protecting Human Rights while Countering Terrorism

GABRIELA CARINA KNAUL DE ALBUQUERQUE E SILVA, Special Rapporteur on the Independence of Judges and Lawyers, said that her first thematic report highlighted the importance of continuing international human rights law education for judges, lawyers, public defenders and prosecutors as a guarantee of their independence. The lack of appropriate capacity-building initiatives affected the capabilities of judges and lawyers to discharge their function effectively and had resulted in a discernible gap between the legal education offered and the outcomes of the application of international human rights law in specific domestic cases. It was an obligation of Member States to put in place a legislative and policy framework for legal education and training of judges and lawyers and to ensure that the judiciary received sufficient funding from the national budget. It was necessary to establish an institution mandated to deliver training services for judicial actors, which should be run and administered by an independent body in order to uphold judicial independence. The goals and objectives of the programme of judicial education should be strategically developed and tailored to meet specific needs taking into account the different expectations, responsibilities and interests of each judicial level and category.

The Special Rapporteur noted the different challenges for the Member States originating from different systems of law, and said that in countries affected by armed conflict particular attention should be given to continuing learning on transitional justice mechanisms especially designed to address issues of gross violations of human rights. The Special Rapporteur suggested that a comprehensive thematic study should be conducted at the international level to assess the current situation of human rights education and the continuous training for magistrates, judges, prosecutors, public defenders and lawyers. Once this study was concluded an international conference should be convoked to determine the modalities in which human rights education and training for the legal professions should be provided. Such efforts should build on the existing initiatives and good practices and standards that already existed in a number of States.

Turning to her mission report, the Special Rapporteur said that her first mission as the Special Rapporteur had been to Colombia which allowed her to note the profound changes achieved since the entry into force of the Constitution in 1991. Colombia had had to face violence by different groups and in recent years there had been emergence of new armed paramilitary groups, which had established contacts with State and political officials, including members of Congress. Those so called “parapolitical” cases had been under the investigation by the Supreme Court and the proceedings against 93 members of Parliament and court had been under way during the visit. The Special Rapporteur spoke about a number of other challenges facing the judiciary in Colombia, such as the attacks, illegal activities of espionage, persecution of judges and even murder. Over 300 judicial officials had been murdered in Colombia over the last 15 years. Colombia had embarked on the constitutional reform, the basis of which was the need to tackle violence and fight impunity. One of the measures adopted was the introduction of the accusatory oral criminal system, which could in the long term represent the new legal culture that could achieve results in the fight against impunity. The Special Rapporteur paid tribute to magistrates, judges, lawyers and public defenders and prosecutors in Colombia, who on a daily basis continued to do their jobs, often resisting pressure, intimidation and persecution.

MARTIN SCHEININ, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, said that his report was a compilation of good practices on legal and institutional frameworks and measures that ensured respect for human rights by intelligence agencies while countering terrorism, including on their oversight. His previous report had given a factual account of how the post-9/11 wave of counter-terrorism measures had transformed the role of intelligence agencies from activities concentrated on unwanted operations by other States to countering terrorism. New problems had emerged in this transformation, as the international cooperation between intelligence agencies had greatly intensified and as such cooperation very often formed an unregulated activity that escaped existing oversight mechanisms.

The Council had then requested him to prepare a compilation of good practices, said Mr. Scheinin, which he was presenting today. It consisted of 35 identified elements of good practice. This study had been facilitated by the cooperation with the Geneva Centre for the Democratic Control of Armed Forces and a research group on constitutional responses to terrorism, operating within the International Association of Constitutional Law. Consultation of States had also been an important part of the project. States had expressed a relatively high degree of interest in the study and 33 States had provided written submissions.

Mr. Scheinin said that he was aware of the fact that intelligence services played a critical role in protecting the State and its population against threats to national security, including terrorism. They helped to enable States to fulfil their positive obligation to safeguard the human rights of all individuals under their jurisdiction. Hence, effective performance and the protection of human rights could be mutually complementary goals for intelligence services. He hoped that States would use his compilation of good practice in an assessment of their own law and practice, and identify the areas of full adherence, of partial adherence and of non-adherence. Thereafter, they would hopefully determine the areas where they wished to adhere with the identified good practices in the future and set benchmarks for getting there.

Statement by Concerned Country

ADRIANA MEJIA HERNANDEZ (Colombia), speaking as a concerned country, thanked the Special Rapporteur on the independence of judges and lawyers for the constructive spirit of her mission and for her report that was both complete and balanced. The report recognized the checks and balances system established by the 1991 national Constitution. The Colombian judiciary was working to increase the financial and human resources needed to achieve the objectives of law and justice. Indeed, significant changes had taken place in Colombia since 1991 and many efforts had been made to move towards a national reconciliation and improvements of the judicial system, including the rights of defendants and victims. Promoting the rule of law was central to the work of the Colombian Government. As the report rightly pointed out, overcoming impunity remained the biggest challenge facing the Colombia and the State would continue to examine all possible solutions to ensure creating a speedy and effective judicial system.

The Government of Colombia reaffirmed its commitment to the decisions of the judiciary and fully respected the independence of the judiciary and offered protection for victims and witnesses. Moreover, the Government rejected any undue attacks on a legal official and would ensure that the guilty would be punished accordingly. Finally, Colombia mentioned that it needed the cooperation of the international community and appreciated the offer of technical assistance presented in the report. Of course, the dangers of drug trafficking and the threat of terrorism in Colombia remained great challenges and Colombia thanked the Special Rapporteur for noting these elements in her report.

Interactive Dialogue on Independence of Judges and Lawyers and on Protecting Human Rights while Countering Terrorism

SAEED SARWAR (Pakistan) speaking on behalf of the Organization of the Islamic Conference, congratulated the Special Rapporteur on the independence of judges and lawyers and noted with appreciation that the report highlighted the need of providing human rights education and training of judges and lawyers. The lack of appropriate capacity building initiatives had a direct impact on the capacity of judges to render justice. The Organization of the Islamic Conference took note of the proposals to initiate a global thematic study to assess the current situation of human rights training available and would appreciate receiving a roadmap to conduct such a study as well as the provision of resources to hold such an international conference. The Organization of the Islamic Conference took note of the intention of the Special Rapporteur to follow developments in international justice closely and to support efforts to strengthen the rules and procedures and was interested in knowing how this exercise would support her mandate.

BENTE ANGELL-HANSEN (Norway) said that Norway welcomed the focus on the role of intelligence agencies and surveillance polices in the fight against terrorism. Norway was concerned about observations suggesting that the lack of oversight and political and legal accountability had facilitated illegal activities by intelligence agencies. Surveillance policies had to always uphold the principles of proportionality and necessity. National security should never be a pretext to abandon the commitment to the rule of law. Any watch list or profile based surveillance programme must be based on the principle of transparency and due process safeguards. Essential precaution against the abuse of power was the establishment of a system of checks and balances between the executive, the judiciary and the legislature.

ROMAN KASHAEV (Russian Federation) said that the independence of lawyers and judges was a very important issue. Russia believed that the recommendation and the proposed three-phase global strategy on educating judges and lawyers was a valuable suggestion. Furthermore, Russia pointed out that a number of positive practices, including ones put forth by the Special Rapporteur, were already being pursued by the Russian Federation and Russian experts were trying to make further improvements. Finally, Russia added that it would be useful to have a list of positive practices by other countries, which could serve as an annex to Mr. Scheinin’s report on human rights and counter terrorism.

ARNOLD DE FINE SKIBSTED (Denmark) said the report on counter-terrorism was very interesting and touched on several crucial areas. The work collecting and identifying best practices was a complex task, and the responsibility to protect and promote the rights of all citizens was very important. Intelligence services helped States with their responsibility to protect citizens and their human rights. It was essential to not let the fear of terrorism override the need to respect international human rights law and international human rights, as they could be complimentary. The Special Rapporteur should elaborate on the recruitment process of the oversight mechanism.

NICOLE RECKINGER (European Union) said the courts had the task of adjudicating fairly on the implementation of legal obligations, including establishing whether the human rights of a person had been violated and addressing questions of restitution, compensation and punishment. Often, courts had to perform their tasks with respect to violations committed by or condoned by organs and agents of the executive branch of the Government. In concrete terms, the independence of judges had an important role in protecting the right not to be subjected to torture, the upholding of human rights while countering terrorism as well as combating impunity and ensuring accountability. Intelligence services fulfilled a critical role in protecting the States and their populations against threats to national security. However, it was of utmost importance that such bodies carried out their activities in compliance with international human rights law.

ROISIN FEGAN (Ireland) said that it was well established that mistrust by a population of law enforcement agencies and mechanisms created insecurity in a society and negatively impacted the realization of that population’s human rights. Judges and lawyers should be permitted to function independently and should be provided with sufficient resources. Ireland shared the Special Rapporteur’s view that the quality of the administration of justice had a direct impact on democracy and the development of States. Ireland asked the Special Rapporteur to elaborate on what “breaches of power” should be targeted to give institutional support to the independence of the judiciary. And finally, what role did the Special Rapporteur envisage for local populations in the administration of justice insofar as empowering people with knowledge of their rights when interacting with the judicial system.

FELIX SCHWENDIMANN (Switzerland) said education and training promoted independence for every person, regardless of profession or career, and where it came to judges and lawyers, human rights education and training contributed to their independence and therefore to a separation of the State powers ensuring the rule of law. It was therefore indispensable for States to provide ongoing training for judicial workers, in mandatory form. It was fundamental for professionals and representatives of State authority to know, respect and protect human rights. Switzerland would also like to thank the Special Rapporteur for the protection and promotion of fundamental freedoms in the fight against terrorism for having drawn up a list of best practices. As a result of terrorist attacks which shook the world at the cusp of the twenty-first century, intelligence services had monopolised attention - civilians relied on them to monitor the activities of terrorist bodies. The best practices listed were a valuable contribution to States that wished to improve the work of their intelligence services while respecting human rights.

ARTURO HERNANDEZ BASAVE (Mexico) said the role of intelligence agencies was essential to combating terrorism and as such States had a responsibility to ensure that their work took place within the framework of international and national law. Mexico believed this report would contribute to the efforts made by all countries in combating terrorism and would lead to improvements in all countries. In terms of the report on the independence of judges and lawyers, it established the need for ongoing training for magistrates, judges and lawyers within a human rights framework and measures to be taken to strengthen legal education for those working within the justice system, especially court appointed defence lawyers. Recommendations contained within the report were of the utmost importance to the modernization of justice proceedings.

DICKY KOMAR (Indonesia) said that Indonesia fully supported the notion that effective and independent courts were critical to secure the rule of law and the effectiveness of a democratic government. Indonesia concurred with the findings of the report on the independence of judges and lawyers, which stated a general need for continued legal training, international human rights education, and enhanced capacity building for judges, lawyers and all those involved in the judicial process around the world. Indonesia went on to say that they had introduced several capacity building and training initiatives to enable Indonesian judges and lawyers to incorporate a human rights perspective into their rulings. With regard to the report on human rights and counter terrorism, Indonesia stated that over the past 10 years the country had undergone a profound shift in its approach and attitude towards law enforcement and human rights. As just one example, a National Police Commission was established with the main task of processing and addressing a public complaints procedure about police related matters.

MAYSA URENA MENACHO (Plurinational State of Bolivia) said the rule of law and respect for human rights were part and parcel of the impartiality of judges and lawyers. The Plurinational State of Bolivia had had countless problems in the past with a judiciary that was run by an elitist power group that maintained impunity for political reasons, as well as a great backlog in the system, causing a great climate of complaint in civil society. Now, thanks to a participative process, the Bolivian people had called for judicial reform, which was now underway. A bill had been approved, amending the nomination of the judiciary, with the aim of depoliticising the system. The Government was making its work in this sector a priority, and remained open to dialogue to ensure it could meet its responsibilities as per the Constitution and international human rights commitments. Over the past few days, representatives of the judiciary had been advised on reform by the Spanish judge Balthasar Garzon.

NICOLAS FIERENS GEVAERT (Belgium) said Belgium attached the utmost importance to the fundamental principle of the independence of the judiciary and the legal profession. This independence was a vital guarantee of the protection and promotion of individual rights and liberties. As such, the theme chosen for the Special Rapporteur’s first report was particularly relevant. Providing ongoing education of magistrates and lawyers in international law and human rights law gave those working in the legal professions the capacity to act independently and also gave them the point of view based in human rights law that would allow them to convict perpetrators against human rights.

MARIO VEGA HERNANDEZ (Costa Rica) said that Costa Rica appreciated the efforts of the Special Rapporteur on the independence of judges and lawyers. Costa Rica recognized that judicial independence and the separation of power was pivotal to the promotion of the rule of law. The independence of the judicial system could only be achieved if effective human rights education was made accessible. The recommendations in Ms. Albuquerque e Silva’s report were very valuable and they provided a roadmap that could be used as a guide for the next stage of human rights education. In this respect, Costa Rica confirmed that it had a judicial training school to educate judges, prosecutor and their assistants. Costa Rica concluded by asking the Special Rapporteur her opinion on the most practical and cost-efficient way to improve the education of judges and lawyers, especially for low-income economies.

LJUBICA PERIC (Bosnia and Herzegovina) said the report of the Special Rapporteur on the independence of judges and lawyers focused on providing education and training in international human rights law for judges and lawyers. Judicial reform in Bosnia and Herzegovina was carried out with the aim of ensuring the independence of judicial and prosecutorial functions. The appointment process was completely outside the influence of politics. A true problem rested in the system of financing the judiciary through 13 different budgets, and this could have a certain influence on the independence of judicial functions. The education of judges and prosecutors was an important segment to which the country devoted attention, and two training centres were established, and they were also trained in the centre for education of State civil servants. Much of this had been done to fulfil the conditions for accession to the European Union. Bosnia and Herzegovina supported the Special Procedures mechanism and welcomed active participation by the mandate holders in the Human Rights Council session.

LIU KENFEI (China) said the Special Rapporteur on the independence of judges and lawyers had focused on the importance of training of judges and lawyers. The Chinese Government supported efforts made by national human rights institutions to increase training for the legal professions. China had undertaken many measures to reform and improve its legal system and to strengthen supervision and monitoring. At the same time, China was working on major measures in capacity building to provide training and education and improve the quality of training and application of the law. China supported the report by the Special Rapporteur on protecting human rights while countering terrorism and supported the best practices he mentioned in his report to ensure respect of human rights by intelligence services. China fought all forms of terrorism, but while doing so it observed the principles of international law.

Documentation

The Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering of Terrorism of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Martin Scheinin; the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak; the Working Group on Arbitrary Detention Represented by its Vice hair, Shaheen Sardar Ali; the Working Group on Enforced or Involuntary Disappearances Represented by its Chair, Jeremy Sarkin (A/HRC/13/42) describes the international legal framework applicable to secret detention. The legal assessment concludes that secret detention is irreconcilably in violation of international human rights law, including during states of emergency and armed conflict. Likewise, it is in violation of international humanitarian law during any form of armed conflict.

Presentation of Joint Report on Global Practices of Secret Detention in the Context of Counter-Terrorism

MARTIN SCHEININ, Special Rapporteur on the Promotion and Protection of Human Rights and the Fundamental Freedoms while Countering Terrorism, began by reminding the Council of the decision taken on 10 March 2009, when he and the Special Rapporteur on torture announced their plan to conduct a joint study in their respective presentations to the Human Rights Council during the tenth session. The Special Rapporteurs invited other mandates to join in this joint study. That call was taken up by the Working Groups on arbitrary detention and enforced and involuntary disappearances. The two Working Groups were represented through their individual members. All four experts participated under equal terms and adopted all parts of the report jointly by consensus. The Special Rapporteurs and the members of the Working Groups strived for a global study, mapping the historical background of secret detention, the post 9-11 emergence and surfacing of a new wave of such practices and the way in which secret detention continued to be resorted to in all corners of the world.

The group strived for a broad and consultative process where individual victims of secret detention and their families and representatives would be able to make submissions to the study. On 16 April 2009, the four Special Procedures sent a letter to all Member States announcing the study, accompanied by a questionnaire. In total, 44 responses were received. In early August 2009, requests were sent to 19 States where alleged victims of secret detention were resident in order to authorize visits with the aim of interviewing such victims. A number of States provided comments, which had been taken into account by the Experts in the finalization of the report. Although the consideration of the study was supposed to take place in March of 2010, the Human Rights Council decided to postpone the consideration of the study until its June session. Mr. Scheinin concluded by saying that the cooperation between the four mandates on this particular study was both smooth and productive.

MANFRED NOWAK, United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, said he would speak on the main focus and objective of the joint study on Global Practices of Secret Detention in the Context of Counter-Terrorism, and highlighted what the writers believed was the added value: new elements that it offered both from a conceptual and a factual point of view. There had been investigations and enquiries in the past on issues related to secret detention, but most were limited in scope. The joint study was global in nature, and was an attempt to give a general overview of the practice of secret detention in the context of counter-terrorism in all regions of the world. Within its global nature, the main objective of the study was to illustrate, in concrete terms, what it meant to be secretly detained, how secret detention in the context of counter-terrorism could facilitate the practice of torture or ill-treatment, and how secret detention had left a life-lasting mark on the victims as well as on their families.

The study offered new elements, conceptual and factual, in the documentation and analysis of the practice of secret detention in the context of counter-terrorism. Secret detention violated not only the right to personal liberty and the prohibition of arbitrary arrest or detention, but also rendered meaningless essential safeguards such as habeas corpus and deprived individuals of their right to a fair trial. It amounted to an enforced disappearance and, if resorted to in a widespread or systematic manner, could reach the threshold of a crime against humanity. The study addressed the State's responsibility on the basis of its level of involvement and complicity with such practice, and addressed the level of involvement and complicity of a number of countries. From the factual point of view, the study offered first-hand information on the global practice of secret detention elicited from different sources. The most disturbing consequence of secret detention was the complete arbitrariness of the situation, together with the uncertainty surrounding the duration of the secret detention, and the feeling that there was no way the individual could regain control of his or her life. The writers, through the study, showed that the practice, in connection with counter-terrorism policies, was widespread, and had been reinvigorated by the so-called war on terror, and therefore remained a critical problem on a global scale. This serious human rights violation deserved appropriate action and condemnation, including by the Council.

SHAHEEN ALI, Vice-Chair of the Working Group on Arbitrary Detention, said that secret detention was irreconcilably in violation of international human rights law including during states of emergency and armed conflict. Likewise, it was a violation of international humanitarian law during any form of armed conflict. Secret detention effectively took people outside the legal framework and rendered the safeguards contained in international instruments, including habeas corpus, meaningless. Despite these unequivocal norms, secret detention continued to be used in the name of countering terrorism around the world and had been reinvigorated by the so-called global war on terror.

As this serious human rights violation deserved appropriate action and condemnation, the report made concrete recommendations regarding this practice, aimed at curbing the resort to secret detention and unlawful treatment or punishment of detainees in the context of counter-terrorism.

The recommendations included an explicit prohibition of secret detention, and the keeping of detention records. Internal inspections as well as independent mechanisms should have timely access to all places where persons were deprived of their liberty. Safeguards for persons deprived of their liberty should be fully respected and all steps should be taken to ensure that family members of detainees were informed of their relatives’ capture, location, legal status and condition of health. Also, any action by intelligence services should be governed by law that was in conformity with international standards and any allegations of secret detention and extraordinary rendition should be promptly investigated. The status of all investigations into allegations of ill-treatment and torture of detainees and detainee deaths in custody must be made public and transfers from one State to another State must be carried out under judicial supervision and in line with international standards. It was also essential that victims of secret detention be provided with judicial remedies and reparation in accordance with international norms. There was also extreme concern that many victims of secret detention indicated that they feared reprisals personally and against their families if they cooperated with this study.

Action on Resolution on Attack by Israeli Forces against the Humanitarian Boat Convoy

In a resolution on the Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy, (A/HRC/14/L.1), adopted by a vote of 32 in favour, three against, and nine abstentions, as orally amended, the Human Rights Council condemns in the strongest terms the outrageous attack by the Israeli forces against the humanitarian flotilla of ships which resulted in the killing and injuring of many innocent civilians from different countries; deeply deplores the loss of life of innocent civilians and expresses its deepest sympathy and condolences to the victims and their families; calls upon the Occupying Power Israel to fully cooperate with the International Committee of the Red Cross to seek and provide information on the whereabouts, status and condition of the detained and injured persons; demands the Occupying Power Israel to immediately release all detained men and material and facilitate their safe return to their homelands; calls upon the Occupying Power Israel to immediately lift the siege on occupied Gaza and other occupied territories; calls upon the Occupying Power Israel to ensure the unimpeded provision of humanitarian assistance, including of food, fuel and medical treatment to the occupied Gaza strip; and decides to dispatch an independent international fact finding mission to investigate violations of international law resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance, and decides to authorise the President of the Council to appoint members of this independent international fact finding mission who should report to the Council on their findings in its fifteenth session.

The result of the vote was as follows:

In favour (32): Angola, Argentina, Bahrain, Bangladesh, Bolivia, Bosnia and Herzegovina, Brazil, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Kyrgyzstan, Mauritius, Mexico, Nicaragua, Nigeria, Norway, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, Slovenia, South Africa, and Uruguay.

Against (3): Italy, Netherlands, and United States of America.

Abstentions (9): Belgium, Burkina Faso, France, Hungary, Japan, Republic of Korea, Slovakia, Ukraine, and United Kingdom.

ZAMIR AKRAM (Pakistan), speaking on behalf of the Organization of the Islamic Conference and the Arab Group, introduced orally revised draft resolution A/HRC-14/L.1 and said that the revised text had been circulated to all members. The concise and focused draft had been presented yesterday with a view to adopt it by consensus without getting into the politics of the broader issue. The resolution was restricted to the specific events and reflected the balanced and appropriate views expressed by the Security Council and the High Commissioner for Human Rights. In its preambular part the resolution referred to the relevant international instruments and expressed grave concern at the deepening humanitarian crisis in Gaza. The operative part strongly condemned the Israeli attack, deplored the loss of lives and called upon Israel to cooperate with the International Committee of the Red Cross on the condition of detainees. The draft resolution welcomed the statements made by the Security Council and the High Commissioner and called on Israel to immediately lift the siege and ensure delivery of humanitarian aid to Gaza. It requested the establishment of the international investigation in the events and the Organization of the Islamic Conference hoped that the draft resolution was representative of the views of the international community and would be adopted by consensus.

AHARON LESHNO-YAAR (Israel), speaking as a concerned country, said the recent events were tragic and unfortunate, and Israel regretted any loss of life. Foreign nationals were being treated and repatriated. The Gaza Strip was controlled by the Hamas terrorist group, which in its Charter sought to obliterate Israel as a land and people, and indiscriminately attacked Israeli land and citizens on a daily basis. For this reason, Israel imposed a maritime blockade to impede the importation of war material into the Gaza Strip. Free access to Gaza would impede Israel from protecting its citizens from terrorist attacks. No State could put itself before such a reality. The threat to Israel's peace and security was constant and real - just yesterday, two more rockets were fired from the Gaza Strip. International law allowed for such a maritime blockade, and allowed Israel to proscribe technical agreements to ensure that nothing was transferred to others besides the civilian population. The ships involved were invited several times to dock at Ashdod and transfer their goods through established security procedures. All overtures were rejected outright. This so-called freedom flotilla was political in nature, and clearly intended to break the blockade. Five of the six ships were peacefully intercepted and brought to the port of Ashdod. The use of iron bars, knives, and Molotov cocktails against the Israeli forces, as well as the presence of gas masks and bullet-proof vests, were evidence of the intent of the flotilla. With regard to the detainees captured, Israel was in adherence with international law, and was currently in the process of releasing all detainees. The world should not lose sight of the objective - how to empower Palestinians and Arab moderates and advance the peace process between Israelis and Palestinians.

IBRAHIM KHRAISHI (Palestine), speaking as a concerned country, said that people always heard that Israel was a democratic country and the Council had just heard the Ambassador of the occupying power say that the aim of the flotilla was political. If that was the case, how could one deal with peaceful activists with such arrogance and in international waters? The matter was quite clear: no impunity could be accepted for this atrocious crime. Otherwise, why was the international community all standing together to combat piracy in Somalia? What was even more unfortunate was that countries were working together to set up a Mediterranean Union. If that was the nature of this Mediterranean Union, Palestine thought this project should be reconsidered. This act by Israel had resulted in the purposeful killing of people from all over the world carrying a humanitarian message and people had seen that on their televisions. In order to make Israel cease its unjust acts and prevent it from going beyond certain limits, Palestine believed Israel should stop considering itself above the law and stop using excuses which no one accepted or believed. Through this stand, Palestine thought they would help Israel and the Israeli leadership. The Gaza Strip was part of the Occupied Palestinian Territory and there was no advisory legal opinion that said the contrary. It seemed that Israel revelled in carrying out practices that were against international law. Palestine was not singling out Israel. The recent events were proof that Israel was trying to monopolize the attention of the international community. All they were asking for was a lift of the blockade and an independent fact finding mission set up to deal with this legally. Palestine said it wished to use no weapons beyond that of international law.

EILEEN CHAMBERLAIN DONAHOE (United States), speaking in an explanation of the vote before the vote, regretted having to call for a vote on this draft resolution. The United States had already engaged in discussion and was working with partners to ensure that the event would be appropriately addressed. The United States condemned the acts that had resulted in the loss of life and expressed its condolences to the families. The United States believed that it was important to conduct an independent and impartial investigation and that there were several ways to do so. The situation in Gaza was unacceptable and unsustainable and the United States would continue to ensure the flow of humanitarian aid to Gaza while keeping in mind Israel’s legitimate security concerns. The only solution to the conflict in the Middle East was dialogue. Unfortunately the resolution before the Council rushed on a set of facts which were only starting to be understood and so risked further politicising the situation. The United States had an obligation to consider the facts and called for a vote.

JEAN-BAPTISTE MATTEI (France), speaking in an explanation of the vote before the vote, said France was convinced of the gravity of the incident that had occurred. The highest authorities in France had expressed their condemnation of the disproportionate use of force, and called for the lifting of the blockade. France had hoped that the Human Rights Council, like the Security Council, could speak unanimously. However, it was not possible to find a common language on certain aspects of the text, and it was regretted that the proposed amendments of the European Union had been ignored. France would therefore abstain from the vote - but this did not impact its wish to establish the truth of the events.

PETER GOODERHAM (United Kingdom), speaking in an explanation of the vote before the vote, said the United Kingdom deeply deplored the loss of life during the interception of the Gaza flotilla. The United Kingdom believed that it was a matter of grave concern that Israeli action should have ended in such a heavy and tragic loss of life. There was an unambiguous need for Israel to act with restraint and in line with international obligations. Israel now bore the responsibility of providing a full account of what occurred, what efforts were made to minimize the loss of life, and why the death toll was so high. The form of the investigation must be impartial and independent.

BOUDEWIJN J. VAN EENENNAAM (Netherlands), speaking in an explanation of the vote before the vote, deplored the loss of lives and the violence and urged that a full enquiry by Israel should be undertaken. It was still to be determined if the United Nations had a role to play in this investigation. The Human Rights Council should not go over and beyond the course of action recommended by the Security Council. The Netherlands wanted to see more consensus on this issue and regretted that the majority of the proposals made by the European Union were not incorporated by the sponsors of the resolution. That was the reason for which the Netherlands would vote against the resolution.

BENTE ANGELL-HANSEN (Norway), speaking in an explanation of the vote after the vote, said Norway believed that the circumstances surrounding Israel's boarding of the flotilla, and the number of people killed underscored the need for an independent international fact finding mission to determine whether international law had been violated. Norway believed the Human Rights Council should act in full coordination with the Security Council, the Secretary-General, and other relevant United Nations bodies when responding to this incident. On this basis, it had argued for a decision by the Council tasking the Secretary-General of the United Nations to lead this investigation, and regretted that this was not retained, as this would have secured a more coordinated and effective response by the United Nations. Norway voted for the resolution as it believed that this tragic incident should be independently and internationally investigated. The fact finding mission should work in close cooperation with the Secretary-General and the Security Council as well as other relevant United Nations bodies, and its composition should ensure a prompt, transparent, and credible investigation. Israel was urged to cooperate fully with the fact finding mission.

CARLOS ROBELO RAFFONE (Nicaragua), speaking in an explanation of the vote after the vote, said Nicaragua voted in favour of this resolution and it welcomed the fact that the Council had agreed to sending an international fact finding mission to investigate the events that had taken place. Nicaragua wanted to draw the Council’s attention to the position of the United States, which said it wanted to have a Council free of politics, yet they were the first not to remove politics from this Council.

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