3 June 2010
Concludes Interactive Dialogue on Independence of Lawyers and Protecting Human Rights while Countering Terrorism
The Human Rights Council this morning held an interactive dialogue on 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 or involuntary disappearances.
In the interactive dialogue, speakers said secret detention remained a widespread problem that should be urgently addressed as it often led to torture. Efforts to counter terrorism could not be used as an excuse to justify cruel and inhumane treatment and subvert the right to justice and due process. When countries employed secret detentions, they undermined the very values they claimed to be fighting to maintain and the degree of impunity which accompanied such violations remained a serious challenge for the international community. Accountability and the rehabilitation of and compensation for victims were of the utmost importance in addressing this issue. Numerous States expressed concerns about the methodology employed to compile the report and said that the anonymous information used in the study prevented them from ascertaining the credibility of such information or pursuing perpetrators. The authors were asked to what extent the implementation of existing international treaties were enough to prevent such practices, and what additional mechanisms were available to States to prevent such practices, and to provide adequate redress to victims.
Speaking in the interactive dialogue on secret detentions were Norway, Cuba, the United Kingdom, Russian Federation, Nigeria on behalf of the African Group, India, France, Mexico, European Union, Ethiopia, United States, Australia, China, Austria, Canada, Switzerland, Republic of Korea, Sri Lanka, Germany, Argentina, South Africa, Syria, Algeria, Sweden, Japan, Uruguay, Philippines, Pakistan, Denmark, Romania, Nepal and Chile.
The following non-governmental organizations also took the floor: International Commission of Jurists, Helsinki Foundation for Human Rights, International Human Rights Association of American Minorities, International Movement against All Forms of Discrimination and Racism, Human Rights Advocates and the World Organization against Torture.
In concluding remarks, Shaheen Ali, Vice-Chair of the Working Group on arbitrary detention, said human rights protection mechanisms would be as robust and resilient as States would make them. Secret detentions were the most important issue to address; they were a gross violation of multiple human rights. Collaborative ventures such as theirs were an important and valuable tool for the human rights protection system as they offered more value.
Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said in concluding remarks that concerning the status of the rule of habeas corpus, the report took the view that this was a non-derogable treaty right under the International Covenant on Civil and Political Rights, and this was also applicable during states of emergency and armed conflict. As a treaty norm, it applied to an overwhelming majority of countries in the world. On the link with freedom of expression, there was a fear of reprisals which had a chilling effect in the field of secret detention.
The Council also concluded its interactive debate 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.
In concluding remarks, Gabriela Carina Knaul de Albuquerque e Silva, Special Rapporteur on the independence of judges and lawyers, said training the judiciary must be a priority for all States and human rights mechanisms could be better used by courts throughout the lands. The Special Rapporteur was encouraged by the high regard of this Council for her mandate and said that all States must work together to find new and better developed tools that would guide them in the work of strengthening the independence of judges. Resources were an important element as well and she suggested that an independent fund be put in place. Impartial and professional judicial systems were a must and were a pre-requirement for the promotion and protection of human rights and the consolidation of the rule of law.
Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in concluding remarks, said he supported the closure of Guantanamo as soon as possible and that oversight institutions should be civilian and independent in nature. In his opinion, intelligence accountability should not only be in the hand of the judiciary, because then the judiciary ran the risk of becoming involved in intelligence activities, which could affect its independence. In terms of training and capacity-building, the Special Rapporteur said that this should include advisory services and technical assistance by the Office of the High Commissioner for Human Rights.
In the interactive debate, with regard to independence of lawyers, speakers said the independence and impartiality of judges and lawyers was a key element of human rights protection, and served as a procedural means to safeguard the rule of law. The importance of continuing education in the area of human rights for judges and lawyers was underlined. Judicial independence and accountability should be balanced, and the preservation of human rights, although paramount, could not be considered as a free pass to be relieved of the obligation to be accountable. The Special Rapporteur was thanked for her numerous recommendations on how to strengthen the independence of judges and lawyers, including the suggestion that an international database be created of international and national human rights case law.
Concerning the protection of human rights while countering terrorism, speakers said human rights restrictions should be accompanied by adequate safeguards through which individuals could seek redress in the event that their rights were violated. Any measures that were undertaken to prevent and combat terrorism should comply with obligations under international law and in particular human rights law, refugee law and humanitarian law. The report presented by the Special Rapporteur helpfully laid out many different practices that Member States should consider based on their existing human rights and legal protections.
Speaking in the interactive dialogue were Hungary, Sweden, Sweden, Sri Lanka, the United States, New Zealand, Australia, Brazil, Pakistan on behalf of the Organization of the Islamic Conference, Algeria, Djibouti, Morocco, Azerbaijan, Egypt, Maldives and Venezuela.
The following non-governmental organizations also spoke: Lawyers Rights Watch Cuba, World Organization against Torture, Colombia Commission of Jurists, International Commission of Jurists, Human Rights Watch, Union of Arab Jurists and the International Club for Peace Research.
The introduction of the reports discussed this morning was made on 2 June and is reflected in press release HRC/10/59.
The Council today is holding a full day of meetings from 9 a.m. to 6 p.m. During its midday meeting, the Council will hold an interactive dialogue with the Special Rapporteurs on freedom of opinion and expression, on summary or arbitrary executions and on trafficking in persons, especially women and children.
Interactive Dialogue with Special Rapporteurs on Independence of Judges, and on Protecting Human Rights while Countering Terrorism
ZOLTAN PAPP (Hungary) said the independence and impartiality of judges and lawyers was a key element of human rights protection, and served as a procedural means to safeguard the rule of law. Hungary attached great importance to this principle, and firmly believed that an independent judiciary was a safeguard against all types of human rights violations, including the practice of torture, trafficking in human beings, or the infringement on the right to privacy. Moreover, competent, impartial and independent judges and lawyers played a crucial role in fighting impunity, ensuring accountability and prevention of human rights violations. The Special Rapporteur's conclusions and recommendations, including the proposed exchange of judicial experiences and the adoption of relevant guidelines, had a lot of merit and should be seriously examined. The level of cooperation by Member States with special mandate holders in general should be significantly enhanced so as to ensure that the Human Rights Council could discharge its functions and responsibilities of protecting human rights. With regard to the report of the Special Rapporteur on human rights and counter-terrorism, human rights restrictions should be accompanied by adequate safeguards through which individuals could seek redress in the event that their rights were violated.
ANNIKA ABERG (Sweden) took the opportunity to reaffirm its support to the mandate and the work of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Any measures that were undertaken to prevent and combat terrorism should comply with obligations under international law, in particular human rights law, refugee law and humanitarian law. Sweden fully supported the role of the United Nations in strengthening the international counter-terrorism legal architecture and had contributed to key United Nations documents for the fight against terrorism. Intelligence services played an important role in any State’s obligation to uphold the rule of law when countering terrorism. Addressing Mr. Scheinin, Sweden asked the Special Rapporteur to elaborate on what he thought were the most challenging obstacles for an individual to bring a complaint against counter-terrorism measures.
JUAN ANTONIO QUINTANILLA (Cuba) said Cuba thanked the Special Rapporteurs on the independence of judges and lawyers and on protecting human rights while countering terrorism for their reports. Cuba noted the importance of continuing education in the area of human rights for judges and lawyers and also noted the exhaustive analysis of the elements that the Special Rapporteur considered could strengthen independent judicial administration. Cuba believed that any initiative proposed to that effect must take into account the specific context of each country obviously bearing in mind international conventions and the experiences up to date, such as the Fifth International Meeting on Justice and Rights that had recently taken place in Havana. Cuba suggested that the Special Rapporteur included in her report the analysis of the impact of the impartial operation of courts on factors such as manipulation of the press and public opinion. Cuba thanked the Special Rapporteur on the protection of human rights while countering terrorism for his compendium of good practices and measures and asked if he had any information on the exact date of the closure of illegal centre of torture run by the United States and if there would be any compensation for the victims. Cuba also wanted to hear if there was any progress in putting an end to the impunity enjoyed by the Europeans who were accomplices on the CIA flights taking people to be tortured.
MOHAN PIERIS (Sri Lanka) said for decades Sri Lanka had been saying that enhanced independence of judges and lawyers was central to strengthening judicial activity, but more recently it had been joined by another element, the demand for greater judicial accountability, in the absence of which the drive for independence might go too far, giving rise to a plethora of new issues. Judicial independence and accountability should be balanced, and the preservation of human rights, although paramount, could not be considered as a free pass to be relieved of the obligation to be accountable. With regard to the report on human rights and fundamental freedoms while countering terrorism, the 35 elements set out therein appeared to capture the fundamental concerns with the balance that must be sought to strike between enthusiasm in the collection of intelligence for the preservation of national intelligence, and upholding human rights. A mechanism of executive and judicial review must be available to those who believed their rights had been infringed, and a mechanism should be set up for appropriate reparation if such a person suffered damage or harm as a result of the unlawful actions of the intelligence services. Sri Lanka was committed to the common goal of ensuring a world safer to live in, whilst ensuring a full and unimpeded enjoyment of human rights.
JULIE B. MARTIN (United States) said that the issue of the independence of judges and lawyers was an important one. Judges and legal practitioners needed to be aware of what international human rights laws were applicable to their country in order to assist in their implementation. While the United States agreed with many of the recommendations put forth by the Special Rapporteur, there was of course no “one size fits all” approach for these particular issues. That said, the United States wholeheartedly agreed that continuing legal education, including education on human rights, was essential to a well informed, functioning legal community. The United States also asked the Special Rapporteur whether or not Iran had responded to her request for a visit. With regard to human rights and counter-terrorism, the United States mentioned that the report presented by the Special Rapporteur helpfully laid out many different practices that Member States should consider based on their existing human rights and legal protections. Finally, the United States commended the Special Rapporteur on human rights and counter terrorism for integrating a gender perspective into the work of his mandate. Following on this, the United States asked if there were any recommendations or lessons learned from this process that could be helpful for other mandate holders.
LUCY RICHARDSON (New Zealand) said New Zealand welcomed the compendium of good practices presented by the Special Rapporteur on the protection of human rights while countering terrorism and said that the recommended elements provided a useful benchmark against which to gauge current State practices. Most, if not all of those measures were already reflected in New Zealand law and practice. Its intelligence services were established by statute and were subject to independent oversight. New Zealand agreed with the emphasis the report placed on upholding the rule of law and human rights while protecting national security. New Zealand wanted to hear the views of the Special Rapporteur on what he intended to do to further the discussion on the good practices and whether he saw a role for the Human Rights Council in doing so. Also, New Zealand was interested in the Special Rapporteur’s views on any of the practices, in particular, as being of paramount importance and if so on what basis.
ANGELA ROBINSON (Australia) said the Special Rapporteur on the independence of judges and lawyers had recommended ongoing education of judges and lawyers to be paid for by States; however, in cases where the State was actively stifling the independence of the judiciary, this was not likely to occur, and therefore Australia supported global efforts to strengthen law and justice, and encouraged the effective functioning of other national mechanisms. Australia asked for the Special Rapporteur's views on what the international community could do to further support the independence of the judiciary, and the continuing education needs of judges and lawyers. Both Special Rapporteurs were thanked for their reports.
OTAVIO DRUMOND CANCADO TRINDADE (Brazil) said that Brazil supported the compilation of good practices to ensure respect for human rights by intelligence agencies while countering terrorism, as presented by Special Rapporteur Martin Scheinin. Brazil attached great importance to the integration of a human rights approach to intelligence agencies and activities. As such, the Brazilian Intelligence Agency was subject to external oversight, particularly by the legislative branch. Concerning the report on the independence of judges and lawyers, Brazil stated that the issue deserved the full attention of the Council when taking action on all human rights, in particular human rights education and capacity building. Brazil pointed out that its National Plan for Human Rights Education provided more than 20 concrete actions for the training of law enforcement officials. Brazil concluded by saying that States also benefited from a judiciary familiar with its human rights obligations.
MUHAMMAD SAEED SARWAR (Pakistan), speaking on behalf of the Organization of the Islamic Conference, noted with appreciation the report of the Special Rapporteur on protecting human rights while countering terrorism. The report compiled the good practices that should be adopted by intelligence agencies while countering terrorism and underlined that the role of intelligence agencies was to support their people and government and ensure national security. This was a challenging role which was further complicated and compounded by the war on terror. Some of the good practices cited in the report were the need to have a clearly defined mandate and an independent oversight of intelligence agencies. The role of the media and civil society gained importance in raising awareness and served as an important additional check against violations committed by intelligence agencies and other government agencies. The Organization of the Islamic Conference thanked the Special Rapporteur for the report and concurred with most of the good practices provided for the functioning of intelligence agencies while promoting human rights.
SELMA MALIKA HENDEL. (Algeria) said, concerning the report of the Special Rapporteur on the independence of judges and lawyers, ongoing training in human rights for judges and lawyers was very important, as they were not just in charge of applying national legislation, but also of applying international norms and standards issuing from international instruments to which their State was party, and therefore they required constant updating and training. Algeria had taken due note of the good practices identified in the report and welcomed these. With regard to the report of the Special Rapporteur on human rights and counter-terrorism, Algeria had examined with great interest the 35 best practices identified in the document, and shared his conclusion on the crucial complementary role of the intelligence services when it came to protecting the State and its citizens from attacks on national security, and thus ensuring full enjoyment of human rights by citizens.
AHMED MOHAMED ABRO (Djibouti) said that Djibouti took good note of the recommendations laid forth by Ms. Albuquerque be Silva, the Special Rapporteur on the independence of judges and lawyers. Djibouti recognized the real need for greater education and training on human rights for all judicial actors and practitioners in the world. Educating judges and lawyers in human rights would help ensure a healthy functioning of society. In conclusion, Djibouti noted the importance of State involvement in the training of the judiciary, in particular by providing material and financial support.
MOHAMED ACHGALOU (Morocco) took note with satisfaction of the emphasis the Special Rapporteur on the independence of judges and lawyers had put on the need to guarantee an adequate level of education for judges and lawyers to better guarantee an independent application of legal protection. Morocco also took note of the proposals for the thematic study and an international conference and said it was an initiative that deserved encouragement by the Human Rights Council. Most of the recommendations made by the Special Rapporteur were in line with the strategic objectives of the judicial reform in Morocco and were part of the irreversible course Morocco took towards democratisation and the rule of law and human rights.
SAMIRA SAFAROVA (Azerbaijan) said the report on the independence of judges and lawyers highlighted the importance of continuing education in human rights for judges, lawyers, prosecutors and public defenders, which would contribute to the better application and implementation of international norms and standards at the domestic level. Since 2000 the Government of Azerbaijan had realised a wide range of measures and reforms in the sphere of the judiciary, creating an Academy of Justice. The education of candidates for the judiciary was entrusted thereto. The education programme of the Academy was prepared in accordance with modern methodology and international practice, and included the relevant United Nations and European conventions. During the education process, specific attention was paid to the law process of the European Court. The education course included Azerbaijan's international obligations, the requirements of various United Nations Conventions and others.
MONA ELBAHTIMY (Egypt) said Egypt commended the Special Rapporteur on the independence of judges and lawyers for the thematic focus of her first report on the provision of adequate human rights education for judges and lawyers. The Egyptian Government believed that human rights education for judges, prosecutors and lawyers was of crucial importance for the effective protection and enforcement of human rights. In Egypt, approximately 4,000 members of judicial and prosecution services and over 1,100 lawyers had been trained in human rights in recent years. Egyptian judges were expected to uphold not only domestic law, but also international human rights law instruments. The Egyptian delegation concurred with recommendation made by the Special Rapporteur concerning the creation of an international database on international case law and national case law relevant to human rights. This would be a helpful legal tool within the context of human rights adjudication at the national and regional levels.
IRUTHISHAM ADAM (Maldives) thanked the Special Rapporteur on the independence of judges and lawyers and concurred with her conclusion that judges must be adequately educated and informed of new developments in international human rights law. The Maldives also agreed with the conclusion that the separation of powers and the independence of the judiciary were of paramount importance and must be respected by all democratic States. However, the Maldives would like to ask the mandate holder how to approach a situation in which these two conclusions may be in conflict. In the Maldives, the independent Judicial Services Commission, which was responsible for the hiring and training of judges, but which was also mainly made up of senior judges themselves, recently established the criteria for the qualification of judges. After studying the criteria, the Government expressed serious concern, noting that they prevented a proper screening of applicants, and thus would hinder the proper administration of justice in the country. The situation must be read against a backdrop whereby many young highly trained judges could not secure a place in the courts because positions were already filled. The Special Rapporteur was asked how, in a country that had recently gone through a democratic transition, could the Government give impetus to the emergence of a new generation of highly educated and trained judges and lawyers, while respecting the independence of the judiciary?
FELIX PENA RAMOS (Venezuela) commented on a remark by the Special Rapporteur on the independence of judges and lawyers who quoted a news paper article which accused the Venezuelan Government of working against the independence of judges by sanctioning a judge in the country. As a result of serious professional mistakes, the Venezuelan Attorney General's office had committed a judge to trial, in full accordance with national legislation and procedure. Venezuela enjoyed the full rule of law and justice and the separation of powers, and this was included in the Constitution. Venezuela was prepared to work with the mandate of the Special Rapporteur.
ISABEL STRAMWASSER, of Lawyers Rights Watch Canada, called on Spain to demonstrate its commitment to human rights by taking immediate action to ensure that no judge in Spain, including Judge Baltasar Garzon, were criminally charged or otherwise punished for exercising judicial jurisdiction to interpret and apply the law. Judge Garzon, an investigating judge with Spain’s Audencia Nacional, was criminally charged for opening an investigation of over 114,000 continuing disappearances and unresolved executions, after parties opposed to his investigation filed a complaint.
ALEXANDRA KOSSIN, of World Organization against Torture, welcomed the report of the Special Rapporteur on the independence of judges and lawyers and noted the case of Venezuelan judge Maria Lourdes Afiuni who continued to be arbitrarily detained in poor conditions and had been subjected to several death threats and assassination attempts. So far, the Government of Venezuela had failed to respond to calls for her immediate release. The case of Judge Garzon in Spain, who was facing criminal charges, was also of great concern. An effective and independent judiciary was one of the key institutions in the promotion of the rule of law. In many countries it was yet to be guaranteed by States. The World Organization against Torture also welcomed the report about the Special Rapporteur’s mission to Colombia and expressed serious concern about the ongoing climate of insecurity in which judges and lawyers carried out their work in that country.
ANA MARIA RODRIGUEZ, of Colombian Commission of Jurists, said in her report on Colombia, the Special Rapporteur on the independence of judges and lawyers said she was concerned about the serious threats against judges and lawyers, with illegal activities, wiretaps, followings and persecution carried out by the Department of Administrative Security, and this constituted an attack on the judiciary, as these acts were not investigated or criminally sanctioned, contributing to an atmosphere of impunity. These measures were carried out against those who were viewed as opponents of the Government. There was no sign that these abuses had ended - in March, a plan was discovered to assassinate various High Court Judges, and the Court felt it had to denounce the lip service and rhetoric that was given to the independence of judges and lawyers. The Special Rapporteur should continue to keep a close eye on the situation in Colombia, and should encourage that country to comply with the recommendations in the report to ensure separation of powers, sanction wrong doers, and overcome the structural impunity that held sway.
GERALD STABEROCK, of International Commission of Jurists, stated that concerted efforts to increase human rights knowledge of the legal profession – as recommended by the Special Rapporteur – was an indispensable part of a broader global agenda to strengthen independent civilian judges. The Centre for Independence of Judges and Lawyers of the International Commission of Jurists expressed its concern with the continuing threats globally to judges, lawyers and prosecutors who exercised their profession independently, including when they applied international human rights law. Finally, the International Commission of Jurists affirmed that States around the world should undertake the necessary steps to strengthen and not weaken independent civilian judges.
PHILIPPE DAM, of Human Rights Watch, was encouraged to see that the Special Rapporteur on the independence of judges and lawyers had referred in her report to the case of the Venezuelan judge Maria Lourdes Afiuni who had been arbitrarily arrested in December 2009. This case exemplified the lack of judicial independence in Venezuela. Since President Chavez and his supporters effectively neutralized the judiciary as an independent branch of government through a political takeover of the Supreme Court in 2004, the impact of the takeover had extended to the whole judiciary. Human Rights Watch asked the Special Rapporteur to keep monitoring the case of judge Afiuni and to request a country visit to Venezuela to look into the broader limitations on the independence of judges and lawyers in the country.
AL-KHAZRATI HASSAN, of Union of Arab Jurists, in a joint statement with several NGOs1, said the Special Rapporteur on the independence of judges and lawyers had requested to visit Iraq, but this request had been pending since 2008, despite reiterated concerns over death sentences imposed by the Iraqi High Tribunal and Special Court, in the general context of absence of guarantees of independence and impartiality, which were the necessary conditions of a fair trial. The trials of these courts had violated international standards on due process and violated human rights standards and principles, in particular the right to be tried by an independent and impartial tribunal and the right to adequate defence. The Special Rapporteur should continue to examine the behaviour of these courts, as they were continuing to prosecute Iraqis with no respect for the minimum human rights standards. These courts were all the production of the American invasion and occupation of Iraq, and must be stopped from executing innocent Iraqi people.
SENGE SERING, of International Club for Peace Research, said that an ethically compromised judiciary meant that legal and institutional mechanisms remained crippled. An independent judiciary was fundamental to combating corruption and to guaranteeing health, labour rights and non-discrimination. The International Club for Peace Research highlighted the plight of judges and lawyers in Gilgit-Baltistan, Pakistan. In that region, locals did not have the right to appeal any violations of their human rights. Justice institutions were prevented from functioning freely and in 2009 judges went on strike to protest their lack of independence. The International Club for Peace Research concluded by demanding justice for the local people of Gilgit-Baltistan who lived in fear and were not protected by the local judiciary.
GABRIELA CARINA KNAUL DE ALBUQUERQUE E SILVA, Special Rapporteur on the Independence of Judges and Lawyers, in concluding remarks, thanked all delegations for their comments and the information they had provided. The Special Rapporteur expressed her interest in stepping up the number of visits and had already increased consultations to that regard. She had received invitations to visit Mozambique, Mexico and Georgia and had met with diplomatic representatives of other States who were considering inviting her. The Special Rapporteur took good note of the suggestion to include best practices in her next report and said that it was necessary to focus on what was already done well in strengthening the independence of the judiciary. It was a good idea to hold regular meetings of judges on a regional or sub-regional level and the Human Rights Council might have a role to play to this effect. The Special Rapporteur believed that her role was to fully fulfil her mandate and promote the exchange of ideas and information, with a particular view to education of judges and lawyers. Training the judiciary must be a priority for all States. The Special Rapporteur intended to work on the implementation of safeguards and strategies for judiciary independence.
Ms. Albuquerque e Silva said that the report gave full account of what judges and lawyers were already doing and what they must do more to protect human rights, particularly in countries and regions which suffered from human rights violations. Human rights mechanisms could be better used by courts throughout the lands and there was a need to think about how to better learn from each other. Particular attention must go to grave violations of human rights. The Special Rapporteur expressed her grave concern about the case of Judge Maria Lourdes Afiuni and said she was awaiting the response of the Venezuelan Government. She was also active on the case of the five Cubans detained in the United States and said she had already held meetings with the Working Group on arbitrary detention to address this case. The Special Rapporteur was encouraged by the high regard of this Council for her mandate and said that all States must work together and find new and better developed tools that would guide in the work of strengthening the independence of judges. Resources were an important element as well and she suggested that an independent fund be put in place. Impartial and professional judicial systems were a must and were a pre-requirement for promotion and protection of human rights and consolidation of rule of law.
MARTIN SCHEININ, Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, thanked all delegations for their comments. Responding to the questions that were asked of him, he said that he supported the closure of Guantanamo as soon as possible. On the oversight institutions, he said that they should at least be civilian and independent. In his opinion, intelligence accountability should not only be in the hand of the judiciary, because then the judiciary ran the risk of becoming involved in intelligence activities, which could affect its independence. On the obstacles for complaints, Mr. Scheinin said that there was sometimes a State-within-the-State situation in some countries, where no proper records were being kept or they were being falsified. There was also a lack of investigating powers by oversight institutions. On recruitment of staff into oversight bodies, this was sensitive issue as there should be a checking of security clearances of future employees because of their possible access to sensitive information.
On follow-up to his study, Mr. Scheinin said that the Human Rights Council should act on the reports submitted by Special Rapporteurs to the Council. On training and capacity-building, he said that it should include advisory services and technical assistance by the Office of the High Commissioner for Human Rights. Oversight activities could be an area for technical assistance.
Interactive Dialogue on Report on Global Practices of Secret Detention
CLAIRE HUBERT (Norway) said that Norway was impressed with work of the two Special Rapporteurs and the Working Groups who prepared the report. The timing of this joint study was highly pertinent, as arbitrary detention remained a widespread and serious problem. Secret detention needed to be addressed urgently as it oftentimes led to torture. Arbitrary detention and enforced disappearances were unacceptable and could not be tolerated. In this regard, fundamental safeguards should be preserved, even in situations of instability and conflict. Norway said the study was well founded and useful. Accountability for secret detention and rehabilitation to victims was of the utmost importance going forward. The Human Rights Council should play an important role in addressing the alarming phenomenon on secret detention and Norway was curious to know what the mandate holders thought about how the Council should respond to proven cases of arbitrary detention.
RESFEL PINO ALVAREZ (Cuba) said Cuba thanked the four mandate holders for the presentation of the joint study and was concerned that secret detention was therein presented as a practice that had repeatedly happened in history and in different geographic areas. Cuba believed this was the way to water down the responsibility of the United States and its allies for the crimes committed during the war on terror. The administration of President Obama had promised changes of which only some had been implemented. The closure of Guantanamo was a positive step but was not enough. Cuba said that the Obama administration did not provide sufficient information about detainees in Iraq and Afghanistan and what their fate had been. There was also the question of the military base of Bagram where persons captured outside of Iraq or Afghanistan were detained. Cuba was of the opinion that the United States did not denounce their practice of using detention and secret detention centres. Cuba regretted that the study had not looked deeper into the issue of CIA secret flights. History had proved that the fight against terrorism must not prevent justice and that essential human rights must be considered and protected at all times, including the right to due process and protection from cruel and inhumane treatment.
Philip TISSOT (United Kingdom) said that the United Kingdom had written a letter last February to the High Commissioner for Human Rights regarding the content of the global study on secret detention. A copy of the letter was available on the Office of the High Commissioner for Human Rights’ website. The United Kingdom welcomed the study and it fully supported the role of the Special Rapporteurs played in carrying out their work. The United Kingdom would never condone the use of torture and the Government considered addressing allegations such as those made in the report a priority. Further announcements on these issues would be made in due course.
SERGEY KONDRATIEV (Russian Federation) said that the Russian Federation had carefully examined the joint study prepared by the two Special Rapporteur and the Working Groups but expressed some concern over the methods used for the study. Firstly, Russia pointed out that this study had not been requested by the Human Rights Council. Secondly, in the study, anonymous information was used, which effectively prevented States from following up with investigations and bringing the alleged perpetrators to justice. Fact-finding missions of this sort should always be based on objective and reliable information, which must be cross-checked and based on criteria of provability. Furthermore, Russia concluded that States should have the opportunity to respond to allegations made against them.
OSITADINMA ANAEDU (Nigeria), speaking on behalf of the African Group, said the African Group condemned the practice of secret detention but raised a number of methodological difficulties that characterised the joint study. This was the first report in which over 30 countries were criticised. In a thematic report, references made to specific countries should only be used to illustrate the point. The study had been based on unverified information and data which had been sent to concerned countries only a few days before the publication of this report, thus not giving enough time to verify the contents nor provide replies. The study failed to refer to replies submitted by Governments on the individual cases dealt with by treaty bodies. The study dealt with the conclusions and statements of Special Procedures as if they were established facts, without regard for replies provided by the countries concerned. The various methodological deficiencies and irregularities deducted considerably from the value of this study and should be completely avoided by the mandate holders in the future.
ACHAMKULANGARE GOPINATHAN (India) said that while the several instances cited in the study were subject to responses by the concerned States, India believed that the study nevertheless generally reflected the law on the subject correctly and was useful in its articulation of the concern. With regard to India, the study expressed six broad concerns. With regard to their anti-terrorism laws, India recalled that the Terrorism and Disruptive Activities Act and the Prevention of Terrorist Activities Act had been enacted under extraordinary circumstances, faced with challenges to national security and public order. With regard to the allegations about the ineffectiveness of judicial remedies, it was regrettable that the study ignored the facts and statistics that ran counter to the allegations. On the existence of secret detention centres in the country, this was an incorrect allegation devoid of facts. With regard to pending requests for Special Procedure visits, India regretted that due to capacity constraints, it had not been possible to receive more than the four that had visited the country in the last three years. On the progress in the ratification of the Convention against Torture, India noted that the Government had introduced a bill on the prevention of torture a few weeks ago.
JEAN-BAPTISTE MATTEI (France) said the necessary struggle against terrorism must be carried out in full respect of human rights, international law and refugee law, and France firmly condemned any use of secret detention, arbitrary detention or torture. France played a driving role in the negotiations leading to the adoption in 2006 of the Convention on the Protection of All Persons from Forced Disappearances, which prohibited secret detention and played a key role in preventing torture. The Convention was thus a major instrument for promoting the respect for human rights while countering terrorism, and all States who had not signed it should do so as soon as possible. France also reiterated its profound commitment to the independence and freedom of action of the Special Procedures, which were a key element in the protection and promotion of human rights. States had an obligation to respond to their requests and communications. Among recommendations was one for reparations for the victims of secret detention, and the Special Rapporteur should clarify the scope and magnitude of that right.
ARTURO HERNANDEZ BASAVE (Mexico) said Mexico welcomed the joint study on secret detention. It was important that the Special Procedures tackled issues that were pertinent to the development of their mandates, and Mexico encouraged them to continue to do this kind of work. The added value of this joint study was that it included meetings with the victims of secret detention and their families. Listing of all practices that could lead to secret detention was another added value of the study. Mexico asked to what extent the implementation of existing international treaties were enough to prevent such practices, and what additional mechanisms were available to States to prevent such practices, and to provide adequate redress to victims. Mexico urged the Special Procedures to tackle in the future the issues related to reparations for human rights violations in connection with secret detention.
NICOLE RECKINGER (European Union) said that the European Union was of the firm conviction that States had to ensure that any measures they took to combat terrorism complied with their obligations under international law. The existence of secret detention facilities where detained persons were being kept in a legal vacuum was not in conformity with international humanitarian and human rights law. The European Union was pleased that the four relevant Special Procedures had taken up the important subject of secret detention. This issue fell squarely within their mandates and the European Union saluted their courage in taking on this controversial issue. The study raised very serious issues which needed to be addressed. But some elements of it seemed less substantiated than others. This was regrettable but perhaps inevitable considering the secret nature of the object of the study. Could the Special Rapporteurs explain how witness protection could prevent future secret detentions?
ALLEHONE MULUGETA ABEBE (Ethiopia) said there were a number of procedural questions with respect to the preparation of the joint study, and in Ethiopia's view it did a disservice to the integrity of the Special Procedures system. The multitude of procedural flaws had negatively influenced the cooperation between States and the Special Procedures involved in the preparation of the study. The methodology employed failed to create a conducive environment to the spirit of dialogue and cooperation. The document gave underserved legitimacy to sources of biased, non-objective and unverifiable information such as reports whose credibility had been found wanting. Ethiopia had never acted as a detaining authority at the behest of a third State or party. There were no secret detentions in the country. Ethiopia, like a number of States, continued to face the threat of terrorism. The Government had the constitutional duty and competence to respond to this threat within the bounds of the law, and its international commitments.
EILEEN CHAMBERLAIN DONAHOE (United States) said the United States had supported the Special Procedures intent to present their report during the previous session and was dismayed that it became an avenue for the attack on their independence. The disagreement of the United States should not be interpreted as an attack but an opportunity to engage in meaningful debate with the Special Procedures. During his second day in office, President Obama had issued executive orders to close any detention centre still in operation, had ordered the Government to take a number of specific measures such as ensure access to the International Committee of the Red Cross to detainees, the humane treatment of all people in United States’ custody and other measures aiming to enhance the transparency of the country’s detention practices. The United States recognised that discussing the issue of the study was a challenge, as even the countries fully compliant with the international norms found it difficult to answer the accusations while still preserving their national security. The United States was concerned about the methodology chosen for the compilation of the study and the failure to identify sources, which made it difficult for concerned countries to verify the allegations. The United States agreed with the conclusion that States must abide by the international law, even if their enemies did not.
PETER WOOLCOTT (Australia) said that terrorism posed serious security challenges for Governments around the world. It was essential that concrete action was taken to protect citizens from this threat. It was also critical that responses to terrorism did not undermine the principles that they sought to uphold. Australia categorically opposed any arbitrary deprivation of liberty, secret detention or torture, including the use of secret detention. The collaboration of various Special Procedures to produce a joint study was welcome.
MA WENJUN (China) said the four Special Procedures, without a clear mandate from the Council, had carried out joint investigations, and they should have stuck to the professional ethics of impartiality and objectivity. The Chinese Government attached great importance to the protection and promotion of human rights, and was against secret detention. The law clearly provided that if the detainee did not accept the decision of a sanction, he or she could apply for administrative review. The Government refused the allegations of the report against the authorities in China - China was a state where the rule of law prevailed, and violations were prosecuted. The Chinese judicial authorities arrested those who damaged national security and disrupted social stability, and fair trials were carried out. Relevant cases were processed strictly according to legal provisions. Secret detention did not exist. China attached great importance to the role of the special mechanisms in the protection and promotion of human rights. The Government was committed to cooperate with the Special Procedures in a constructive manner.
CHRISTIAN STROHAL (Austria) said Austria welcomed the constructive recommendations contained in the report, which would provide an important reference and contribute to a better understanding of the legal and practical implications of secret detentions. Secret detentions were contrary to the spirit and word of human rights and humanitarian law and were prohibited in times of peace and times of war. Austria called on all countries to ban secret places of detention, to ensure that all persons deprived of their liberty were held in official places of detention, and to ensure that victims of violations received adequate compensation. Perpetrators needed to be held to account. Austria asked for further elaboration of the applicability of the principle of habeas corpus in the context of armed conflict. Also, Austria asked for further explanations on how best this Council could ensure the implementation of the many valuable recommendations made in the report.
JAMES JUNKE (Canada) acknowledged the important aims of the four Special Procedures in undertaking their joint study. The issue was an important one which, by its nature, required independent and impartial scrutiny. This issue fell squarely within the mandates of the Special Procedures. The Government of Canada was, however, troubled by some of the methods used by the Special Rapporteurs in collecting information. Sources of information were not always identified, which prevented an assessment of their credibility. On the alleged facts pertaining to Canada, he noted that the study drew extensively on as yet unproven allegations of fact provided by counsel representing a number of individuals who had brought legal claims against the Government of Canada. The cases mentioned had been the subject of extensive independent public inquiry processes by two former Canadian Supreme Court justices, a point which was omitted in the report. Canada hoped that future studies would employ methods that were more objective.
JURG LAUBER (Switzerland) said Switzerland thanked the Special Rapporteurs and members of the Working Groups that had made a contribution to this study, and recalled that secret detention centres and secret detention were not compatible with human rights and humanitarian law, which should be respected, including in the struggle against terrorism. Switzerland welcomed the collaboration of the Special Mechanisms, and believed this issue should be followed in the future. This problem affected every region of the world. Switzerland had duly replied to the questions posed by the Experts. The Swiss national group against torture had worked on the implementation of the Convention against Torture. The study showed the implications of secret detention against the backdrop of humanitarian law and human rights law, and was therefore very valuable. How could the Human Rights Council ensure a beneficial follow-up to this important study, and what follow-up had already been made, Switzerland asked.
HA WIE-YOUNG (Republic of Korea) said the Republic of Korea welcomed the opportunity to have a frank discussion on secret detention and said it believed that this Council should not refrain from discussing information regarding any human rights violation brought to its attention. The joint report contained a rigorous conceptual framework, extensive information and concrete recommendations, which proved the benefits the Council could enjoy from spontaneous initiatives taken by the Special Procedures. Secret detention was one of the most dreadful human rights violations, particularly given the fact that this practice in most cases was carefully geared by the authorities. Pointing fingers on this issue would be meaningless and the Republic of Korea suggested the discussion on how to move forward with the recommendation submitted in the report, and asked the mandate holders what their plans were in relations to the follow up. It was crucial to faithfully update the report with the possibility of correction of, if any, factual mistakes, in close consultation with relevant governments and other stakeholders.
KSHENUKAN SENEWIRATNE (Sri Lanka) said that Sri Lanka wished to update the information contained in the report with the contemporary developments in Sri Lanka, in particular the recent decision by the Government to roll back the Emergency Regulations. With the ending of the terrorist conflict, the Government had now commenced the process of scaling down those regulations. This rollback was only the beginning of a process which would be continued as and when ground conditions became conducive to further relaxation. With regard to the caseload of alleged enforced or involuntary disappearances, the study had failed to provide an accurate picture of the current status. Some assertions in the report on the question of detention were almost entirely based on hearsay. All detentions in the context of countering terrorism had been made within the legal framework that governed such detention. Quite contrary to the assertions in the report, those who had surrendered and had been detained had not been held incommunicado or in secret facilities. Further, a legal regime had been put in place for their rehabilitation and release.
REINHARD SCHWEPPE (Germany) said Germany welcomed the initiative taken by four Special Procedure mandate holders to deal in common with the issue of secret detention, which was a crucial human rights infraction, inevitably linked to questions pertaining to the rule of law and the principle of accountability, both of which were primordial for ensuring respect for human rights. Germany attached great importance to the Human Rights Council's system of Special Procedures; their independence and autonomy were crucial for their work, and were part of an effective system of protection of human rights, and were essential as a reaction to actual human rights problems. All attempts aimed at censoring or attempting to prevent a presentation and discussion of this report in the Council were therefore condemned. The German Government appreciated the opportunity to engage in a consultative process on the report with the authors.
SILVIA CAO (Argentina) said that secret detention violated the right to individual freedom and the prohibition of arbitrary detention, and if prolonged could facilitate torture and other forms of cruel, inhumane or degrading treatments. Argentina expressed its utmost concern that secret detention continued to occur in different parts of the world under multiple pretexts, such as a state of emergency, international war or the fight against terrorism. It was necessary to work together to prevent and sanction those crimes, and Argentina was fully committed to working with the mandate holders towards that goal. Argentina drew attention to the history of the establishment of the Working Group on arbitrary detention, which had been established at the behest of Argentina. Thirty years ago in Argentina there had been about 500 secret detention centres in which over 14,000 detainees had been held. Since the restoration of democracy in 1983, Argentina had adopted a steady commitment to the promotion and protection of human rights, which were the priorities of Argentina policies both nationally and internationally.
LUVUYO NDIMENI (South Africa) said that it was South Africa’s view that the joint study was not presented in a vacuum. They saw it in the broader scheme of the ever-increasing, alarming and rampant practices of torture, arbitrary detention and enforced disappearances in the context of countering terrorism. South Africa fully shared in the non-derogability of the right not to be tortured as contained in international human rights law. The degree of impunity which accompanied such violations remained a serious challenge for the international community. Further, the right to truth was violated too often in the context of countering terrorism and this had a negative effect in the provision and access to effective remedies and reparations for victims of illegal practices. Also, the report’s recommendations would need a comprehensive and robust follow-up.
RANIA AL RIFAIY (Syria) said Syria was concerned about the unprofessional way that the report on secret detention was written and presented, and found it unacceptable. The report had referred to a number of cases where Syrian and other foreign citizens were legally arrested and underwent public trials on criminal offences not related to terrorism, and had served prison sentences in public prisons. Nonetheless, the writers of the report chose to present them as cases of secret detention while countering terrorism, and chose to turn a blind eye to real cases of arbitrary and secret detention in other parts of the region. The report made use of unverified claims by incredible parties and presented them as truths. The report unnecessarily referred to special minorities in the country, and made demands on their status - this was an unacceptable interference in the internal affairs of a sovereign state. The Government of Syria had cooperated fully, in good faith and transparency with those who prepared the report, and expected this to be mutual. Unfortunately, it had not been the case. The report was a clear case of Special Procedures who had lost their way in the search for any kind of information to prove previously-held opinions, and who had violated their Code of Conduct and the very mandates that had established their work.
IDRISS JAZAIRY (Algeria) said the study was based on sources of information which were rather unusual for the work of Special Procedure, such as journalists and the media. The study presented individual cases, but failed to set out full replies provided by concerned Governments, thus not providing the full picture of the situation. Despite the scale of the task, Algeria ensured that the fight against terror was conducted with the full respect for human rights, and that there were no places of secret detention. All places of detention were official and subject to inspection, and the International Committee of the Red Cross had since 1999 visited many of those establishments, including surprise visits. The national legislation provided for sanctions for any breach of procedures for custody or detention. Algeria condemned the shameful practice of “false rendentions” which was not worthy of the countries that considered themselves leaders in the promotion and protection of human rights.
ANNA UGGLA (Sweden) underlined Sweden’s strong support for the independence of all Special Procedure mandate holders. How the mandate holders wished to organize their work to achieve implementation of their mandates was for them to decide. Sweden continued to take the criticism it had received on the cases mentioned in the report seriously. The report mentioned that many victims of secret detention from countries around the world had indicated that they feared personal reprisals against them their families, if they cooperated with the study or allowed their names to be used. Sweden attached great importance to the right of freedom of expression and they were most concerned about the study’s findings. Sweden was also concerned with the scope of violations against the ban on torture.
AKIO ISOMATA (Japan) said Japan thanked the Special Rapporteurs and the representatives of the Working Groups who developed the report and the innovative methodology in the drafting of the report which set standards for the future. It would also contribute to the cooperation between Special Procedures and treaty bodies and to increase coordination between United Nations bodies. Japan appreciated the work of the co-authors in covering the entire situation, including the history and legal analysis. Secret detention was in violation of international human rights laws, including in situations of conflict, and should be explicitly prohibited. It was useful to grasp relevant information comprehensively, with recommendations to follow, and the recommendations in the report should be duly followed in the States mentioned therein. Secret detention amounted to forced disappearance, and ratification of the Convention on protection of all persons from forced disappearance would help in this regard.
MARIA LOURDES BONE (Uruguay) said Uruguay expressed its appreciation for the joint study and condemned detention centres and the abuses that occurred within them, particularly in states of emergency. Such crimes were repeatedly committed during the prolonged military regime that occurred in Uruguay from 1973 to 1985. Currently, in a fully democratic Uruguay, the Government was working towards the compilation, publication and dissemination of all materials that refer to this part of Uruguay’s history, in order to educate and strengthen collective memories. Uruguay welcomed the work of the Special Rapporteurs and Working Groups on this joint study and stated that these initiatives were in line with the promotion and protection of human rights.
DENIS Y. LEPATAN (Philippines) said the Philippines noted that the joint study mentioned a specific case in the Philippines, where the Writ of Amparo – a judicial procedure available to all alleged victim of secret detention - had been applied by the Supreme Court in favour of the alleged victim. The delegation wondered why the other alleged victims of secret detention mentioned in the report had not availed of this judicial procedure. The four mandate holders should have asked the complainant why this had not been done. On a specific case, the mandate holders had interviewed an individual in the safety of Geneva. Again, the Philippines wondered why they had not pursued the interview to determine sufficiency of evidence to elevate the case beyond allegation.
ZAMIR AKRAM (Pakistan) said the report presented balanced coverage of the issue, but should have included a transparent methodology based on reliable sources. The so-called global war on terror had led to various protections being extended to individuals through human rights law. In order to fight terrorism, States had taken various steps that were at times in conflict with national and international laws. Pakistan had been in the forefront of the global fight against terror. Thousands of its people and security personnel had been killed by terrorists, and yet it had managed to remove some terrorist leaders. It had made an effort to garner public support for measures and action taken against terrorists, and the Parliament had unanimously endorsed these policies. Media and civil society had also played a proactive role. The leadership had deeply regretted certain acts of omission and commission in past events, and concerned Ministries of Law and Justice had established a special task force to investigate all past incidents of disappearance. The Supreme Court of Pakistan had taken action in the alleged cases of missing persons, most of which lacked particulars, creating problems for investigation and verification. Many of the alleged persons had also left their homes voluntarily, it was established during investigation. The Government had established an independent Commission of Inquiry to look into all these cases, and the Commission was expected to report back in four months.
LARS VOLCK MADSEN (Denmark) said that there could be no doubt that secret detention facilities where detained persons were kept in a legal vacuum were contrary to international human rights law. The decision of the relevant Special Procedures to take up this topic was the right thing to do and Denmark applauded them for standing firm on this decision. Denmark concluded with several questions for the Special Rapporteurs and the Working Groups, including whether or not the mandate holders were expecting to look at the issue of secret detention by non-state actors. Denmark asked what States should do in response to the cases raised in the report, including situations where it seemed that entire ethnic groups were exposed to secret detention.
GABRIELA CONSTANTINESCU (Romania) said Romania fully supported the autonomy, independence and impartiality of the mandate holders; their reports contributed to the credibility of the Council’s work. Important elements provided by the Government of Romania to the mandate holders had not been included and meant that clarifying the situation in Romania had not been adequately reflected in the study. The allegations included in the study which suggested that Romania was connected with the activity of secret detention and rendition were unfounded.
HARI ODARI (Nepal) said Nepal attached great importance to the work of the mandates holders, and considered that independence, impartiality, non-selectivity and objectivity must constitute the bedrock of their work. Scrupulous adherence to the provisions of the institution-building package and the code of conduct of the Special Procedures were important frameworks for the mandate holders to be able to contribute to the protection and promotion of human rights within their respective mandates. Nepal had gone through the report and found that observations made about Nepal had deviated from the fact and appeared largely based on selective but contested reports, and the Government had clarified most of these observations on several occasions, and was dismayed to see that the views of the Government had neither been considered in the report nor made available as a separate official document. The Government was committed to remain actively and constructively engaged with the Special Procedure mandate holders. Even in the peak of the conflict, Nepal had extended full cooperation to them. Although it had left the conflict behind, Nepal was determined to meet out true justice with regard to the alleged incidences of human rights violations during the time of the conflict.
VICENTE ZERAN (Chile) said that Chile would like to share some ideas with the Special Rapporteurs and Working Groups responsible for the joint study on secret detention. Chile agreed that the fight to combat the scourge of terrorism was ongoing. However, international law prohibited secret detention, which ran counter to the practice of human rights. If secret detentions were carried out systematically, Chile said they could become a crime against humanity. Chile believed that international actors working together improved the effectiveness of the Council in promoting and protecting human rights. Chile asked the mandate holders whether certain international instruments, such as the Convention on Torture, had been effective in reducing such practices.
GERALD STABEROCK, of International Commission of Jurists, in a joint statement with several NGOs2, said that the study highlighted the global nature of the problem of this grave and persistent human rights issue in countries around the world. He called on the Council to condemn the practice of secret detention and complicity therein, and take leadership in endorsing specific measures towards ending secret detention and the persistent impunity for such practices. Failure to act now would only further entrench these abusive practices. Secret detention could not be justified under any circumstances. It resulted in multiple human rights violations and could amount to crimes under international law, including enforced disappearances. All States should now undertake a review of their laws and policies to prevent secret detention in the future.
LESLIE BUTTERFIELD, of Helsinki Foundation for Human Rights, said the Helsinki Foundation for Human Rights applauded the observation in the report that "secret detention violated the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus”. Secret detention amounted to enforced disappearance, and there was concern on the whereabouts and well-being of the eleventh Panchen Lama of Tibet, and the Chinese authorities should respond to recommendations by the Working Group on enforced or involuntary disappearances and by the Committee on the Rights of the Child to shed light on the whereabouts of this spiritual leader.
ISHTIYAQ HAMEED, of International Human Rights Association of American Minorities, said that the four mandate holders had worked hard on the report and in a transparent manner. Secret detention was a violation to the right of personal liberty. The Association agreed with the mandate holders that no jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of law and without the possibility of resorting to legal procedures. The Association also shared the view of the mandate holders that secret detention centres should be explicitly prohibited. Finally, the International Human Rights Association of American Minorities highlighted the presence of secret detention centres, arbitrary detention and enforced and involuntary disappearances in Indian occupied Kashmir.
DAISUKE SHIRANE, of International Movement Against all Form of Discrimination and Racism, said that Sri Lank had continued to fail to address the ever growing problem related to disappearances. Since 1989 reports and documentation related to disappearances had piled up with no effective responses from the authorities. Thousands of disappearances had been further reported in the period from 2006 to 2009 during the recent war. Available documentation revealed that thousands of innocent persons could be arrested, indefinitely detained, tortured, raped and killed and their bodies disposed with no information provided and no records kept. Special responsibility lay with those at the apex of the command structure who permitted this state of affairs to exist.
KIMBERLY IRISH, of Human Rights Advocates, said the privatisation of prisons had exploded in recent years as a worldwide human rights crisis. In countries all over the world, corporations had partnered with Governmental immigration agencies to provide detention services. With little Government oversight, privately-run prisons escaped true accountability, making it much easier for human rights violations to occur, including arbitrary detention. When detainees were held indefinitely, whether migrants or not, their human rights were violated. Corporations' ultimate goal of making money did not necessarily correspond with the protection of human rights. Therefore, the Human Rights Council should request that the Working Group on arbitrary detention study the effects that privatised prisons had on the human rights of detainees, particularly those of migrants, and prepare a report on its findings. State Parties using private corporations for detention services should monitor the living conditions and medical care that detainees had, and should intervene when necessary to ensure that human rights were respected.
ALEXANDRA KOSSIN, of World Organization against Torture, in a joint statement with International Federation of ACAT (Action By Christians for the Abolition of Torture), welcomed the joint study on secret detention, which had had a difficult passage through the Human Rights Council. As the study emphasized, secret detention facilitated, and could even amount to, torture and other ill-treatment, which were absolutely prohibited under international law. The non-governmental organizations strongly urged Member States to fully implement the recommendations contained in the study. They asked the authors of the report whether it would be appropriate for the Council to pass a resolution calling on States to investigate the revelations made in the report and to deliver justice to all those involved in this illegal practice.
SHAHEEN ALI, Vice-Chair of the Working Group on Arbitrary Detention, welcomed the comments and observations that had been raised today. Human rights protection mechanisms would be as robust and resilient as States would make them. Secret detentions were the most important issue to address; they were a gross violation of multiple human rights. Collaborative ventures such as theirs were an important and valuable tool for the human rights protection system as they offered more value. She thanked those delegations that had supported them and that had said that the mandate holders had been well within their mandate. It was not a perfect methodology, there were limitations and constraints in their study, but they had tried to reflect as rightfully as possible the information they had collected. On witness protection she noted that this itself had been a challenge to their own methodology; many witnesses had refrained from speaking to them because they had feared retaliation.
MARTIN SCHEININ, Special Rapporteur on the Protection and Promotion of Human Rights while Countering Terrorism, thanked all delegations for their comments, observations and questions. It had been a rewarding experience. With regard to good practice in redress, Sweden, for example, had a proper approach, with regard to its implementation of recommendations. On the status of the rule of habeas corpus, the report took the view that this was a non-derogable treaty right under the International Covenant on Civil and Political Rights, and this was also applicable during states of emergency and armed conflict. As a treaty norm, it applied to an overwhelming majority of countries in the world. On the El-Masri case, the Special Rapporteur drew attention to the interview section that was included in the report, which implied that interview summaries were summaries of facts received, whereas the report contained the findings of the four Experts. The Special Rapporteur had addressed the question of targeted killings, in particular in his mission report on a visit to Israel, and he had made plans for his future reports, which were more general in nature.
On the link with freedom of expression, there was a fear of reprisals which had a chilling effect in the field of secret detention. The Special Rapporteur regretted that the timeline was tight with regard to Governmental communications, and the group had done its best to include submissions by Governments in the report, although it was possible that there had been omissions. On the use of treaty body findings, these were a source that was a result of a procedure where the alleged victim and the Government were already parties to a complaint; the findings of the treaty body were used as sources. Paragraph 155 of the report was sufficiently detailed to not need erasure or be ignored on the basis of a general denial - concerned Governments should launch independent inquiries into the assessment the group had made to determine which facts were true. The group of four mandates did not have any plans for continuing their work - it was in the hands of the Council in this regard.
1. Joint statement on behalf of: Union of Arab Jurists, North-South XXI, General Federation of Iraqi Women, Arab Lawyers Union, and International Organization for the Elimination of all Forms of Racial Discrimination (EAFORD).
2. Joint statement on behalf of: International Commission of Jurists, Human Rights Watch, International Federation of Human Rights Leagues (FIDH) and Amnesty International,
In the Press release issued on 2 June (morning: HRC/10/58), the statement of DANIELA MCBANE, of North-South XXI, was a joint statement with Union of Arab Jurists; International Organization for the Elimination of all Forms of Racial Discrimination (EAFORD); and Arab Lawyers Union.
For use of the information media; not an official record