8 March 2010
Concludes Interactive Debate with Special Rapporteurs on Torture and on Protecting Human Rights while Countering Terrorism
The Human Rights Council this afternoon heard presentations from the Chairperson-Rapporteur of the Working Group on enforced or involuntary disappearances, the Chairperson-Rapporteur of the Working Group on arbitrary detention, and the Representative of the Secretary-General on internally displaced persons. It also concluded its interactive debate with the Special Rapporteur on the promotion and protection of human rights while countering terrorism and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
Jeremy Sarkin, Chairperson-Rapporteur of the Working Group on enforced or involuntary disappearances, said the Working Group wished, once again, to draw attention to the underreporting of disappearance cases in all regions of the world, including Africa. The phenomenon occurred for various reasons, including poverty, illiteracy, fear of reprisals, weak administration of justice, ineffectual reporting channels, institutionalised systems of impunity, a practice of silence, and restrictions on the work of civil society. In the context of internal armed conflict, opposition forces had reportedly perpetrated acts that were analogous to disappearances, and the Working Group condemned the practice of acts analogous to enforced disappearance, irrespective of who the perpetrators may be.
El Hadji Malick Sow, Chairperson-Rapporteur of the Working Group on arbitrary detention, said the report particularly focused on the detention of illegal migrants, asylum seekers and refugees. In some countries, the detention of illegal migrants was mandatory and automatic, and judicial control was absent, and in other countries no maximum detention time had been determined, allowing for detention to be prolonged over significant periods of time. The Working Group therefore reiterated the need to apply the principle of proportionality, as well as to free detained migrants whenever their repatriation was not possible. The Working Group had further continued working on the issue of detainees who had been sentenced by military courts or under the temporary state of emergency. It had noted with concern that more and more States had put in place legislation that restricted fundamental freedoms of detainees.
Walter Kalin, Representative of the Secretary-General on the human rights of internally displaced persons, said since 2004, the magnitude of conflict-induced displacements had remained about the same. There were also a growing number of people displaced by natural disasters such as earthquakes and climate-related disasters, and people had also become victims of arbitrary displacement. There were hardly any cases of those responsible for arbitrary displacement and other human rights violations having been held accountable. Impunity had become prevalent in far too many such countries. There had also been considerable achievements. The normative framework for the protection of internally displaced persons was much stronger today than it was six years ago, and the Guiding Principles on Internal Displacement had gained international recognition as the key international framework for the protection of internally displaced persons.
Speaking this afternoon as concerned countries in response to the presentation of reports of arbitrary detention, enforced disappearances and internally displaced persons were Morocco, Malta, Senegal, Serbia, Georgia and Chad. The Republic of the Congo also took the floor in the interactive dialogue.
Also speaking this afternoon in the interactive dialogue on torture and on countering terrorism were the representatives of the United States, Uzbekistan, Liechtenstein, Kenya, Egypt and Angola. The following national human rights institutions and non-governmental organizations also took the floor: Public Defenders of Georgia, the Danish Institute for Human Rights, Human Rights Watch, Asian legal Resource Centre, Human Rights Advocates, Cairo Institute for Human Rights Studies, International Federation for Human Rights Leagues, Centrist Democratic International, World Organization Against Torture, and International Federation of Action by Christians for the Abolition of Torture.
Speaking in right of reply were Egypt and Iran.
The next meeting of the Council will be at 10 a.m. on Tuesday 9 March, when it will hold an interactive dialogue with the Chairperson-Rapporteurs of the Working Group on arbitrary detention and on enforced disappearances and the Representative of the Secretary-General on the human rights of internally displaced persons.
Interactive Debate on Reports on Torture and on Human Rights While Countering Terrorism
MARK CASSAYRE (United States) said the United States strongly supported the work of the Special Procedures, as they provided an important resource in efforts to comply with international human rights obligations and to encourage respect for human rights and fundamental freedoms throughout the world. While States might disagree with mandate holders over factual or legal issues, the United States encouraged them to engage with Special Rapporteurs in a constructive manner. States should defend the independence of the Special Procedures in general, even when it was not politically convenient to do so. The need for continued efforts to strengthen respect for the prohibition on torture and cruel, in human or degrading treatment or punishment was sadly underscored by the Special Rapporteur on torture's conclusion that in the vast majority of States, torture not only occurred in isolated cases, but was practised in a more regular, widespread or even systematic manner. He should elaborate on what he believed to be the key elements necessary for an effective complaint mechanism. Ensuring protection from arbitrary or unlawful interference with privacy in the context of counterterrorism was an extraordinarily complicated issue; it was important to recognize that they may not be a "one-size-fits-all" approach. Also, while data protection was a growing area of concern, it was not necessarily an independent human right distinct from the broader right to privacy.
BADRIDDIN OBIDOV (Uzbekistan) said, with regard to the presentation of the Special Rapporteur on torture, that the Government had taken consistent steps to combat torture and degrading treatment, as, for example, those relating to its citizens’ complaint system. Uzbekistan provided information to the Special Rapporteur on torture on a regular basis. Furthermore, the 2002 country visit of the Special Rapporteur had led to the establishment of a national plan of action against torture, and in 2004 the Government had created a working group with a view to coordinate the implementation of that plan of action, among other tasks. Those actions, inter alia, had enabled the authorities to consistently monitor the action of its law enforcement agents, as well as to give effect to the provisions of the Convention against Torture. In 2008, Uzbekistan had further designed a plan of action aimed at improving the judiciary and ensuring better material and technical conditions to tackle torture. It further had in place a national action plan to implement the 2009 recommendations of the Council’s Universal Periodic Review mechanism.
PATRICK RITTER (Liechtenstein) thanked the two eminent experts for their excellent reports. Liechtenstein would continue to contribute to international efforts aimed at countering the erosion of international human rights standards in the name of State security and secrecy. It commended Mr. Scheinin on the choice of his theme. Liechtenstein also shared the Special Rapporteur’s concerns that many States no longer limited exceptional surveillance schemes to combating terrorism, and that those powers were made available for all purposes. The Special Rapporteur had recommended stronger safeguards for information sharing between Governments that would continue to protect the privacy of individuals. How could that goal be achieved with regard to the cooperation of intelligence agencies? Did he think that existing United Nations instruments on mutual legal assistance lacked clear provisions in that regard? Liechtenstein encouraged both Special Rapporteurs to contribute to the upcoming United Nations World Congress on Crime Prevention and Criminal Justice in Brazil.
MANJANN NJAN-KIMANI (Kenya) said the Kenyan legal system clearly prohibited torture. Kenya was committed to becoming a torture-free country, and took this occasion to reaffirm the importance that it attached to every individual's freedom from torture and other cruel and inhuman treatment. With regard to the Committee against Torture's recommendations and public concern on the high number of allegations of torture by law-enforcement officers in Kenya, the Government had drafted a bill on torture, making provisions for the punishment of crimes of torture. Reforms were also intended to turn the Kenyan Police and the Administrative Police into professional and accountable police services, which could provide effective security and protect and promote citizens' human rights. Those reforms were expected to not only improve national security significantly, but also the respect for and protection of human rights in Kenya.
OMAR SHALABY (Egypt) underscored that Egypt supported the views of the Special Rapporteur on terrorism, Mr. Scheinin, regarding the continued erosion of privacy. His recommendations to develop international standards for data protection were also very interesting, and Egypt asked for more information on how to best bridge the gap between theory and practice with regard to the right to privacy. Furthermore, how could extraterritorial measures, particularly as relating to modern information and communication technologies, be addressed? In addition, if global measures were to be developed, as recommended, how could the conduct of States in that regard be monitored? Turning to the report of Mr. Nowak, Egypt commended his comprehensive report. As a voluntary commitment in that field, Egypt had engaged in reviewing the concept of torture in its Penal Code in order to fully align itself with the Convention against Torture. The Government also supported the Special Rapporteur’s recommendation to establish a fund to assist States in their efforts. That was similar to a proposal that Egypt had made earlier and, while regretting that that proposal had not been accommodated at the time, Egypt hoped that that issue would now be taken up.
ARCANJO DO NASCIMENTO (Angola) said, with regard to allegations of the ill-treatment of illegal immigrants from the Democratic Republic of the Congo, that Angola was trying to come to grips with the influx of countless people, which was creating social and economic problems, representing a threat to national security. Angola was home to 500,000 illegal immigrants. It was working with regional and international organizations to address that matter. At the national level, Angola had dealt with the situation in line with national and international standards. Angola’s laws made a distinction between refugees and illegal immigrants. The army was sometimes called in to deal with armed and dangerous immigrants. Angola hosted thousands of people from all corners of the world and would continue to do so as long as they abided by the country’s migratory laws.
GEORGE TUGUSHI, of the Office of the Public Defender of Georgia, said the Office of the Public Defender of Georgia had been designated as a national preventive mechanism against torture in July 2009, when the relevant amendments had been introduced to the Organic Law on the Public Defender, on the basis of which amendments a Special Preventive Group had been established. The mechanism was capable of effectively fulfilling its functions of monitoring and detecting instances of torture, inhuman and degrading treatment in the closed institutions of Georgia. Under its current mandate, the mechanism was monitoring all closed institutions including penitentiary institutions, police cells and temporary detention facilities, military police detention facilities, psychiatric institutions, and social care homes. The Special Preventive Group took into consideration recommendations elaborated by the Special Rapporteur and monitored their stage of implementation. The first special report of the national preventive mechanism was being elaborated. In conclusion, it could be said that the system of closed institutions in Georgia still faced many systemic, as well as isolated problems, and the Office of the Public Defender was actively involved in identifying those, believing that in the future it would help in improving the situation with regard to torture, inhuman and degrading treatment.
KATHARINA ROSE, of Danish Institute for Human Rights, in a joint statement with several NGOs1, expressed strong support for the Council’s Special Procedures. The Special Rapporteurs and Special Procedures had a broad mandate to report on all human rights issues. Being the eyes and ears of the Council, those were essential to ensure the Council’s effective functioning. The continued use of secret detention in many parts of the world and the erosion of the right to privacy in the fight against terrorism were of concern. The right to privacy was a precondition for a number of other rights that could not be fully realized and enjoyed without respect for that right. The conclusions and recommendations of the Special Rapporteur on countering terrorism were fully supported and States were urged to implement those recommendations at the national level. Any interference with the right to privacy had to be authorized by laws that were publicly accessible, precise and proportionate to the security threat, and strong and independent oversight mandates should be established in order to review interference with the right to privacy, among other measures.
JULIE DE RIVERO, of Human Rights Watch, expressed concern on the widespread and abusive practice of many Governments around the world in detaining and interrogating terrorism suspects in secret and undisclosed locations. That was a violation of international human rights laws. Long-term secret detention also violated international humanitarian law. The purpose of secret detention was often to facilitate the use of torture, cruel and inhuman or degrading treatment. In Egypt, terrorism suspects were often held in undisclosed detention facilities, sometimes for years, without proper legal process and in many cases subjected to torture. There was no justification for relying on secret detention in fighting terrorism. Human Rights Watch called on the Human Rights Council to tackle that difficult and persistent issue.
MICHAEL ANTHONY, of the Asian Legal Resource Centre, said the report of the Special Rapporteur on torture noted that, despite the grave nature and absolute prohibition against it, torture remained widespread in the majority of countries. He had also noted that some Governments had completely failed to respond to his communications and that, in others, serious investigations into allegations of torture that had actually led to sanctions against the officials responsible had only been conducted in exceptional cases. Of particular concern was the finding that country-specific conclusions and recommendations made by the mandate had never led to any specific resolutions or recommendations by the Human Rights Council, which was deeply disturbing. The Universal Periodic Review alone was clearly not a sufficient mechanism to deal with issues that were this sensitive and in need of urgent action. Resources needed to be provided to improve the institutions of the rule of law, including the police, the judiciary and places of detention.
LANI VIROSTKO, of Human Rights Advocates, said, with regard to the work of Mr. Scheinin, that the lack of a universal definition of terrorism increased the possibility of human rights violations and negatively impinged on anti-terrorism measures of States. A comprehensive definition should be established. It should focus on acts of violence that targeted civilians, and should include the intent to commit acts of violence for the purpose of provoking terror or intimidating a Government or organization. The inability of States to agree on a universal definition of terrorism was unfounded and prevented the United Nations from sending a clear message that violence against civilians was never justified. Did the Special Rapporteur on countering terrorism have any suggestions on how to reach consensus on a universal definition of terrorism? Turning to issues dealt with by the Special Rapporteur on torture, Mr. Nowak, Human Rights Advocates underscored that the death row phenomenon was a severe psychological and physical deterioration that occurred in inmates who had spent long periods of time on death row. In many countries, a high number of prisoners in fact spent several decades on death row before being executed, which was like receiving two sentences – a life sentence under conditions constituting torture and a death sentence. Had Mr. Nowak been able to examine the death row phenomenon?
RASHA EL-SHEHAWY, of the Cairo Institute for Human Rights Studies, welcomed the report on Egypt by the Special Rapporteur on countering terrorism, as well as the Egyptian Government’s groundbreaking initiative in inviting the Special Rapporteur. The key recommendations adopted in that report were fully endorsed. The Special Rapporteur’s attention was drawn to some 30 members of the Muslim Brotherhood who had been arrested under a vague charge stemming from Egypt’s state of emergency law and tried in an exceptional court. The Cairo Institute urged the Special Rapporteur and the Human Rights Council to take account of that.
HOSSAM BAHGAT, of the International Federation of Human Rights Leagues, asked, with regard to the situation in Egypt – where the rule of law was seriously undermined and the Government intended to renew the state of emergency – what role could the Human Rights Council play in addressing the systematic violation of basic human rights that the state of emergency allowed? The Special Rapporteur should elaborate more on the use of secret detention in Egypt, and what could be deduced with regard to the Government's refusal to answer questions on certain points. The report referred to a trial of men suspected of involvement in bombings in Taba by a security court– what measures could be taken to ensure the Government did not violate the right to life of the three men sentenced to death in that context, as there were no appeals under this court? Also, how did Egyptian officials justify the utter disregard for the law?
JOHN SUAREZ, of Centrist Democratic International, said that it was through the report of the Special Rapporteur on torture that Centrist Democrat International had learned that several country visits which had been planned by the mandate holder had been postponed in 2009, including those to Cuba and Zimbabwe. What were the reasons for that, and had there been any attempts to influence his decision in that regard? Many prisoners held in Zimbabwe had reportedly suffered from such severe violations of their rights that it had amounted to torture. Had those cases been investigated by the Government of Zimbabwe? How could the international community contribute to improving the human rights situation in that country? As for prisoners of conscience, Centrist Democrat International asked whether denying water to a human being on hunger strike for more than two weeks constituted an act of torture, and if so, whether the case of Orlando Zapato Tamayo had been investigated by the Special Rapporteur on torture?
GISELLE BOGAEST, of World Organization against Torture, took note of the Special Rapporteur’s mission to Uruguay in 2009, which had confirmed the situation of adolescents who were deprived of their liberty and expressed deep concern at their alarming living conditions, which included torture. Despite advances, the use of psychotropic drugs for restraint had also become a grave concern. Uruguayans were firmly urged to follow up on the suggestions of the Committee on the Rights of the Child and that of the Special Rapporteur on torture. What steps had the Government of Uruguay taken to implement recommendations made by the Special Rapporteur on adolescents who had been deprived of their right to freedom?
NATHALIE JEANNIN, of International Federation of ACAT (Action By Christians for the Abolition of Torture, in a joint statement with International Rehabilitation Council for Torture Victims, welcomed the conclusions and recommendations in the report of the Special Rapporteur on torture. The Human Rights Council should encourage States to implement those promptly and effectively, as the reality was worrisome. Torture was one of the most serious crimes against human dignity, and yet it remained a widespread practice in many countries. There was no country where conditions of detention could not be improved. Impunity was one of the main factors contributing to torture and ill-treatment. There was a need for political will to investigate allegations and bring perpetrators to justice. Very few serious investigations seemed to have been conducted. Most victims of torture and ill-treatment were tortured because they were suspected of crimes, and already belonged to disadvantaged groups. The mandate of the Special Rapporteur was to assist Governments in their efforts to improve the situation and put an end to torture and ill-treatment. The Council should call on States to fully cooperate with the Special Rapporteur and take measures against those States that systematically failed to cooperate.
MARTIN SCHEININ, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in concluding remarks, thanked all delegations for their constructive spirit during the interactive dialogue, particularly Tunisia and Egypt, which had spoken as concerned countries. On the situation in Egypt, he remained concerned about the measures of administrative detention that continued to be used under the Counter Terrorism Act in that country. As for the debate on whether he should have speculated more on Egypt’s new Counter Terrorism Act or whether he should have provided more facts regarding the situation in Egypt in his report, he had tried to strike a fair balance. He would remain committed to follow-up, in collaboration with the Government of Egypt, on the situation in that country in order to engage with emerging cases. He also confirmed that sentencing persons without giving them the right to appeal constituted a human rights violation.
Mr. Scheinin clarified that data protection was not a human right on its own, but rather an attribute of the right to privacy. He called for a declaration with an aim to affirm existing law, convert law into policy, and spell out limitations regarding the right to privacy. He particularly thanked Mexico for its unwavering commitment to his mandate. Further, it was unpleasant but necessary to acknowledge that there remained an issue of funding which postponed the compilation of good practices on the right to privacy. The Special Rapporteur concluded by reiterating that he would continue working for the respect of human rights in the fight against terrorism.
MANFRED NOWAK, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in concluding comments, said he was very encouraged by the response of Kazakhstan and other countries. He would assist them in implementing his recommendations. He was not surprised that Equatorial Guinea did not agree with his findings. He assured Jamaica that his recent visit was meant to praise the Government for its work. Hopefully they would have further discussions in New York. He was grateful for the encouraging words, including by Sri Lanka, China and the Republic of Moldova. With regard to the European Union’s question, the Special Rapporteur could only assist States that were willing to cooperate; otherwise, the Human Rights Council would be expected to act accordingly. He rejected the unfounded statements of Zimbabwe. He believed that any Government in the world could, if it wanted to, eliminate torture, including through a policy of transparency, by opening its prisons to outside visits and by the creation of an independent inspectorate of police services.
Mr. Nowak affirmed that detainees did constitute a vulnerable group that could see their specific rights recognized in an international convention, just as children and persons with disabilities did. Some Governments including China, Korea and Egypt had taken up proposals for a Global Fund for Torture. That should go far beyond a voluntary fund for victims of torture. A human rights approach to justice reform by the likes of the World Bank should be a priority for development projects. With regard to the situation in Iran, the Government had not replied to his urgent appeals regarding the detentions of protestors following the elections last year. He had, however, had a number of meetings most recently with the ambassador of that country about a possible visit there. With regard to the United States, he had reiterated to the Obama Administration that he wanted to visit Guantanamo but had received no reply. He expressed deep concern about prisoners on death row in China and elsewhere. In conclusion, he called on States to see the recommendations and observations of Special Procedures as constructive, and they should use them to fulfil and protect human rights.
Right of Reply
AHMED IHAB GAMALELDIN (Egypt), speaking in a right to reply, said a couple of non-governmental organizations had raised a number of issues, which had already been addressed by Egypt in its earlier intervention, as well as in the concluding remarks of the Special Rapporteur on terrorism. Egypt would lift the state of emergency as soon as the draft law on terrorism was adopted. There was a delicate balance between combating terrorism and protecting individual liberties and it was hard to strike that balance perfectly. Egypt looked forward to more dialogue with the Special Rapporteur in the future.
The Report of the Working Group on Enforced or Involuntary Disappearances (A/HRC/13/31) reflects communications and cases examined by the Working Group during its three sessions in 2009, covering the period from 5 December 2008 to 13 November 2009. A summary of activities during the reporting period is also presented.
Mission to Morocco (A/HRC/13/31/Add.1) is currently available in French only.
The report of the Working Group on Arbitrary Detention, Chairperson-Rapporteur: El Hadji Malick Sow (A/HRC/13/30), the Working Group’s annual report for 2009, includes a summary of communications between Governments and the Group in 2009, as well information about the implementation of the recommendations made by the Group to the Governments of countries it visited in 2007. It also examines several issues that gave rise to concern during 2009, including the human rights of detained migrants and asylum-seekers.
Opinions adopted by the Working Group on Arbitrary Detention (A/HRC/13/30/Add.1) contains the opinions adopted by the Working Group at its fifty-fourth, fifty-fifth and fifty-sixth sessions, held in May, September and November 2009, respectively. A table listing all the Opinions adopted by the Working Group and statistical data concerning these opinions are also included in the report.
Mission to Malta (A/HRC/13/30/Add.2), the report of the Working Group’s visit in January 2009, finds that accused spend relatively long periods in pretrial detention and, inter alia, recommends that the Government change its laws and policies on administrative detention of migrants in an irregular situation and asylum-seekers, so that detention is decided upon by a court of law on a case-by-case basis.
Mission to Senegal (A/HRC/13/30/Add.3) is currently available in French only.
The report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin (A/HRC/13/21) discusses the achievements, activities and the progress made during the tenure of the present mandate-holder, also identifying major challenges remaining with regard to the human rights of internally displaced persons, notably that of addressing multiple layers of vulnerability and discrimination.
In his report on his follow-up visit to the mission to Serbia and Montenegro (including Kosovo) in 2005 (A/HRC/13/21/Add.1), the Representative highlights, among other issues, that Serbia has strengthened the institutional framework to address internal displacement but that the number of returns to and within Kosovo remains disappointingly low.
Mission to Somalia (A/HRC/13/21/Add.2) identifies the patterns and causes as well as the magnitude and dynamics of internal displacement in Somalia, and makes recommendations to prevent future displacement and mitigate its consequences – in particular by stopping the shelling of residential areas and ending the climate of impunity.
The report on the Special Rapporteur’s follow-up to the report on the mission to Georgia (A/HRC/10/13/Add.2) (A/HRC/13/21/Add.3) notes that only very few internally displaced persons have been able to return to the Tskhinvali Region/South Ossetia, and of those displaced within South Ossetia, many still await reconstruction of their houses.
The Framework on Durable Solutions for Internally Displaced Persons (A/HRC/13/21/Add.4) details the components of such a Framework, organized around four key questions: what is a durable solution for internally displaced persons; what key principles should guide the search for durable solutions; how should a rights-based process to support a durable solution be organized; and what criteria determine to what extent a durable solution has been achieved?
Mission to the Republic of Chad (A/HRC/13/21/Add.5), based on the Representative’s February 2009 visit, says there is a grave crisis in Chad with regard to protection, characterized by the precarious situation in which displaced persons live and the general insecurity that prevails in the east; so long as the various communities have not been reconciled and a much stronger State presence aimed at ending impunity re-established, the situation in the east could deteriorate at any time, leading to new waves of displacement.
Presentation of Reports on Enforced Disappearances, Arbitrary Detention and Internally Displaced Persons
JEREMY SARKIN, Chairperson-Rapporteur of the Working Group on Enforced or Involuntary Disappearances, presenting the annual report of the Working Group, said that, during the reporting period (5 December-13 November 2008), the Working Group had transmitted 456 new cases of enforced disappearances to Governments of 25 countries, and had clarified 36 cases concerning 15 countries. The Working Group had also sent 13 prompt intervention communications to eight Governments, regarding the reported harassment of or threats to relatives of disappeared persons or human rights defenders working on cases of enforced disappearances. Furthermore, the Group had sent 16 communications to 10 Governments concerning persons who had been arrested, detained, abducted or otherwise deprived of their liberty, or who had been forcibly disappeared or were at risk of being so. In addition, during 2009, the Working Group, together with other United Nations and Human Rights Council mechanisms, had conducted a global joint study on the practice of secret detention in the context of contemporary counter-terrorism efforts.
The Working Group wished, once again, to draw attention to the underreporting of cases of disappearance in all regions of the world, including Africa. The phenomenon occurred for various reasons, including poverty, illiteracy, fear of reprisals, weak administration of justice, ineffectual reporting channels, institutionalized systems of impunity, a practice of silence, and restrictions on the work of civil society. In the context of internal armed conflict, opposition forces had reportedly perpetrated acts that were analogous to disappearances, such as in Colombia, Nepal, the Russian Federation and Sri Lanka, and the Working Group condemned the practice of acts analogous to enforced disappearance, irrespective of who the perpetrators may be. In its annual report, the Working Group highlighted four major areas of concern: counter terrorism measures that could amount to enforced disappearances; a serious problem of impunity for enforced disappearances in certain parts of the world; the special consequences for women of enforced disappearances; and that the right to truth should be enjoyed by all the victims of enforced disappearances.
Highlighting some country situations, the Working Group had for a number of years been concerned about the number of reported cases of disappearances in Sri Lanka and about an increasing number of communications regarding disappearances in Iran. Algeria was commended for beginning a process of dialogue and cooperation with the Working Group. With regard to the Working Group's visit to Morocco, it had recommended that the Government continue strengthening the administration of justice, and had congratulated the Government for the pivotal role it had played in the drafting of the International Convention for the Protection of All Persons From Enforced Disappearances. The Group also recommended that Morocco take effective measures to put an end to impunity as a fundamental step to ensure the non-repetition of acts of enforced disappearance. To further combat the practice of enforced disappearance, the Group urged the United Nations to proclaim 30 August as International Day of the Disappeared, Mr. Sarkin concluded.
EL HADJI MALICK SOW, President of the Working Group on Arbitrary Detention, said the Working Group on arbitrary detention had conducted official visits to Malta and Senegal in 2009, also participating in the study on secret detention in collaboration with three of the Council’s other Special Procedure bodies. Currently, the Working Group was working to improve its follow-up procedure and to ensure its dialogue with States. The Government of Equatorial Guinea and Norway, visited by the Working Group in 2007, had responded to recommendations of the Working Group, and Angola had requested additional time for consideration. Turning to the report of the Working Group, Mr. Malick Sow said that document particularly focused on the detention of illegal migrants, asylum seekers and refugees. In some countries, the detention of illegal migrants was mandatory and automatic, and judicial control was absent, and in other countries no maximum detention time had been determined, allowing for detention to be prolonged over significant periods of time. The Working Group therefore reiterated the need to apply the principle of proportionality, as well as to free detained migrants whenever their repatriation was not possible. The Working Group had further continued working on the issue of detainees who had been sentenced by military courts or under the temporary state of emergency. It had noted with concern that more and more States had put in place legislation that restricted fundamental freedoms of detainees.
The Working Group thanked those Governments which had responded to its statements, and it noted with satisfaction that some countries had taken action in conformity with the Working Group’s recommendations or had sought dialogue on the adopted measures. It was however with concern that the Working Group noted that freed persons were at times subsequently imprisoned again and that in some cases prisoners had been detained “incommunicado”, without conviction and possibility of judicial reconsideration. The Working Group had also asked for the immediate and unconditional release of Aung San Suu Kyi, underscoring that reprisals against judges who exercised their work in line with the Constitution, and who implemented the recommendations of United Nations human rights mechanisms, should not be tolerated under any circumstances by this Council. Furthermore, as in previous years, there had been several arbitrary detentions that had been based on the law of temporary emergency, or on measures taken in the fight against terrorism, constituting violations of the basic principles of penal procedure. Other judgments were based on the non-respect of the liberty of opinion, expression or association, or the participation in public affairs, or constituted a non-respect of the liberty of thought, conscience or religion.
Turning to the country visits the Working Group had conducted, Mr. Malick Sow thanked the Government of Malta for its cooperation before, during and after the visits, noting with satisfaction that the Government had provided institutional and juridical guarantees against arbitrary detention. Mr. Malick Sow also noted with satisfaction that a reform provided that the time of provisional detention would automatically be deducted from the overall sentence. Such reforms highlighted the commitment of the Government of Malta to respect its international obligations. Nevertheless, there was a concern that people who had entered the territory illegally, as well as asylum seekers, continued to be detained on a compulsory basis. While the Government asserted that such persons were not to be considered prisoners, the reality according to the gathered information was that that was the case. As for the country visit to Senegal, Mr. Malick Sow noted that the Government had conducted major institutional and legislative reforms in 1984, 1992 and 2008, all of which aimed to eliminate arbitrary detention as well as prolonging provisory detention, and that the Government had considered the establishment of two new appeal courts in order to complement the existing three.
WALTER KALIN, Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, said that in his capacity as Representative he was presenting his final annual report to the Council. He expressed gratitude to all those who had supported his work over the past six years. Since 2004, the magnitude of conflict-induced displacements had remained about the same. There were a growing number of people displaced by natural disasters such as earthquakes and climate-related disasters. People had also become victims of arbitrary displacement. There were hardly any cases of those responsible for arbitrary displacement and other human rights violations having been held accountable. Impunity had become prevalent in far too many such countries. Too many displaced women and girl-children remained exposed to gender-based violence.
There had also been considerable achievements. The normative framework for the protection of internally displaced persons was much stronger today than it was six years ago. The Guiding Principles on Internal Displacement had gained international recognition as the key international framework for the protection of internally displaced persons. While a strong normative framework was a necessary condition for their protection, it remained insufficient as long as its implementation remained weak in many parts of the world. On mainstreaming the rights of internally displaced persons into humanitarian action and recovery activities, it was crucial for development organizations to integrate the human rights of internally displaced persons into their work. The participation of the mandate at all levels of the Internal-Agency Standing Committee had been crucial to his task of mainstreaming the rights of internally displaced persons. Progress had been made in that regard. The mandate had also worked effectively with other parts of the United Nations system.
With regard to countries the Special Rapporteur had visited, improvements in the security situation in Sudan, Nepal and Uganda had allowed people to return home. Many persons remained in protracted situations. Somalia was or risked becoming like that. There were situations where internally displaced persons suffered new displacements due to fresh violence as in Eastern Democratic Republic of the Congo and Somalia. People were fleeing in Afghanistan and Colombia. The very low number of returnees to Kosovo was a cause for concern. There had been very few cases due to deeply entrenched discrimination. The United Nations High Commissioner for Refugees should play an intermediary role in that regard. The Special Rapporteur welcomed efforts by the Government of Serbia to improve the living conditions of those who could not return. The degree of sexual violence in Somalia was appalling. The fate of some half a million displaced persons there who could not be reached by humanitarian assistance was very worrying. Renewed fighting in and around Mogadishu seemed imminent. Opportunities did exist to improve the lives of internally displaced persons but much more input from donor and humanitarian community was required. The Special Rapporteur planned to visit Iraq and Sudan.
Despite progress made much work needed to be done in an increasingly difficult environment. Challenges included addressing internally displaced persons in all situations and better addressing the vulnerabilities of persons affected by internal displacement. Bolstering the international response was also a challenge; and defending humanitarian space was a challenge especially where attacks on workers were increasing. Internally displaced persons would continue to suffer unless development interventions in the midst of crises that bolstered communities were put in place. Those challenges were not insurmountable. They required the collective will of the international community.
Statements by Concerned Countries
OMAR HILALE (Morocco), speaking as a concerned country, said Morocco had made the protection and promotion of human rights an irreversible strategic choice. The reforms put into place for the consolidation of the rule of law and the anchoring of a democratic and human rights culture meant that Morocco was determined to place human rights at the centre of its modern societal project. This was based on modern humanist values and a new understanding and respect for human rights. The deep reforms were characterised by their comprehensive scope and inclusion, relating to all areas, aiming to take democracy deeper. Reconciliation with the past was included in this system, with the aim of better understanding the past to better understand the future. There was a close tie between internal democratic choices and multilateral diplomacy, and Morocco had thus established a close cooperation with the Working Group, a solid relationship based on joint understanding of the main, human aims, putting an end to a sorry chapter of enforced disappearances. It was within this framework that the Working Group carried out its visit in 2009. It was in a spirit of openness that Morocco invited the Independent Expert for access to drinking water and sanitation and other United Nations mechanisms to the country. The Working Group's visit had allowed Morocco to assess its system of transitional justice. Morocco welcomed the mission report very much, as well as the constructive approach of the Working Group.
VICTOR CAMILLERI (Malta), speaking as a concerned country, said Malta welcomed the positive observations of the Working Group with regard to the country’s institutions and laws. Nevertheless, the report noted that Malta’s mandatory detention regime for irregular migrants did not seem to be in line with international human rights law, particularly with the International Covenant on Civil and Political Rights. By contrast, Malta did not consider that its actions constituted an infringement of international human rights law because administrative detention of irregular migrants was provided for in law; because such detention may be challenged at any time; and because concerned individuals were fully informed of their rights. The report also wrongly commented that only few applications were successful in spite of the large number of migrants applying for asylum. That did not reflect the facts since records suggested that more than 52 per cent of requests were approved in 2008, with that number even standing at 65 per cent in the year 2009. Malta regularly granted a protection status to well over 50 per cent of applicants. That was fully in line with the country’s international and European Union obligations and made Malta the country with the highest acceptance rate in Europe.
CHEIKH TIDIANE THIAM (Senegal), speaking as a concerned country, thanked Mr. El Hadj Malick Sow for the quality of the report he had just given, on his visit to Senegal upon the Government’s invitation. Senegal had shown its will to submit to an independent evaluation of the prison system. The report said that concerning the organization of visits, at the psychiatric clinic of the university hospital in Fann, some doctors had not been informed. That was not necessary, as hospital authorities had planned to hold meetings with the Working Group at the director general level. The report recalled that in Senegal the independence of the judiciary from the executive branch was ensured under the law. As to its ratification of major international instruments on human rights, the report noted that Senegal was one of the first countries to have ratified the Statute of Rome on the International Criminal Court. It failed to mention that it was the first country in the world to have done so. The report could clarify that Senegal did not just sign the Convention on Persons with Disabilities but that it had also ratified it. The same was true of the International Convention against Enforced Disappearances. Senegal welcomed the conclusions of the Working Group and reiterated its willingness to take into account its recommendations, highlighting notable advances in the field of prevention.
UGLJESA ZVEKIE (Serbia), speaking as a concerned country, said there were about 210,000 internally displaced persons from Kosovo and Metohija, who, together with refugees, made Serbia the country with the highest vulnerable population of the sort in Europe, which was why the Government was committed to seeking the most appropriate solutions. It was a strategy based on dialogue and cooperation among the Governmental institutions, non-governmental organizations (NGOs) and other relevant actors. The issue of the status of refugees and internally displaced persons were among the most critical challenges in the area of human rights, which was why the Government appreciated the report of Mr. Kalin. Serbia was committed to provide for the realization of the rights of internally displaced persons, irrespective of their decision to return or remain in the location of displacement, or, alternatively, opt for some other solution. In the view of the dismal state of human rights in the southern Serbian province of Kosovo and Metohija, the conditions for return did not exist. Among the internally displaced persons, Roma, Egyptians and Ashkali were particularly vulnerable categories in Kosovo. There should be more efforts on the part of the international community, including NGOs, in order to better the conditions in Kosovo for the return and decent living of the internally displaced persons. The efforts of the Government needed to be coordinated and complimented by more significant initiatives and actions on the part of the international community, which was, among others, related to the issue of readmission from Western Europe. The Government was committed to find sustainable solutions for the internally displaced persons.
GIORGI GORGILADZE (Georgia), speaking as a concerned country, said the Georgian population which still resided in the occupied territories continued to suffer from gross human rights violations, as inter alia highlighted by the report of the Representative of the Secretary-General on the human rights of internally displaced persons. These violations included, among other forms, gender-based violence, forced labour and forced conscription as well as torture and illegal detention of civilians. There was a danger that the occupied region of South Ossetia would mutate into a black hole where human rights continued to be violated and where internally displaced persons and refugees were unable to return. That was to a large extent because the United Nations and the Organization for Security and Co-operation in Europe did not have any missions in Georgia. It was therefore of crucial importance that the presence of international organization was re-established and reinforced. Moreover, implementing all points of the August 12 ceasefire agreement with the Russian Federation would improve the respect for human rights and fundamental freedoms by the population affected by the occupation.
AWADA ANGUI (Chad), speaking as a concerned country, thanked the Representative of the Secretary-General on the human rights of internally displaced persons for his report. Upon his visit to Chad, the Representative gave information on the situation of displaced persons there. A forthcoming work shop on sensitising people on promoting lasting solutions for internally displaced persons in Chad due to be held in the capital would take place within a framework of seeking solutions in that regard. In his report, the Representative had made crucial recommendations, which would allow Chad to improve the situation of internally displaced persons. Chad hoped that the international community would help it in that regard.
PIERRE MABIALA (Republic of the Congo) said the Government of the Republic of the Congo welcomed the work of the Working Group on enforced disappearances. The Republic of the Congo had suffered years of civil war, during which there had been numerous loss of life and disappearances. As soon as peace had been re-established, as well as security and the authority of the State over all the national territory, the Government had focused on setting up all the appropriate institutional mechanisms in order to shed light on cases of enforced disappearance. The Republic of the Congo had been urged to provide redress for suffering of civilian parties. The Government of the Congo respected the rule of law and judicial opinions. With regard to the ratification of the International Convention on the Protection of All Persons against Enforced Disappearance, the Government, which was a signatory of the Convention, had begun the process of ratification. The Republic of the Congo had made commitments last year during the examination of its report under the Universal Periodic Review process, and these commitments were permanent.
Right of Reply
MOJTABA ALIBABAEE (Iran) said it was much regretted that during the interactive dialogue this morning some speakers, particularly members of the European Union, had resorted to unsubstantiated allegations against Iran, attempting to single out that country and thereby leading to a politicized discussion in the Council. Those countries, and particularly the United Kingdom, attempted to divert the attention of the international community from illegal detention centers, such as Guantanamo, as well as from those Muslims who had testified that they had been victims of inhuman and degrading treatment. All delegations should adopt a constructive approach and refrain from politicizing human rights.
1 Joint statement on behalf of: Danish Institute for Human Rights, National Commission for Human Rights of Greece, National Consultative Commission for Human Rights in France, Afghan Independent Human Rights Commission, German Institute for Human Rights, Norwegian Centre for Human Rights, Irish Human Rights Commission, Commission Consultative des Droits de l'Homme du Grand-Duché de Luxembourg, South African Human Rights Commission, and Equality and Human Rights Commission in Great Britain.
For use of information media; not an official record