Plenary Session, August 6, 2003

A visit from the Chairperson of the Human Rights Committee,
discrimination within the criminal justice system,
and the accountability of armed forces

The Chairperson of the Human Rights Committee, Mr. Amor Abdelfattah, initially addressed the Sub-Commission on the importance of a "dialogue" between members of the commission. He then stressed that the Human Rights Committee did not accept the idea of a "single, or unique report." The denial of the report is mainly due to timeliness, but the Committee did accept the idea of reform and "streamlining to increase efficiency."

Mr.Leila Zerrougui, Special Rapporteur, introduced an introduction to her report on discrimination in the criminal justice system. Discrimination within the administration of justice, she stated, showed that "racial discrimination is an undeniable fact." However, other forms of discrimination are visible, targeting foreigners, the poor, handicapped persons, those of alternative sexualities, as well as other minorities. However, due to intolerance of particular groups, foreigners, racial minorities, and indigenous peoples are the continuously targeted and discriminated against within the legal system. Her report focuses on the legal framework of the criminal justice system with regards to process and administration. The report illustrated how discrimination depends on economic status and racial group hierarchies.

Mr. Weissbrodt asked the Special Rapporteur to include research about discrimination against ex-convicts. Some States confiscate citizen rights, such as the right to vote, even after the convicts have served their sentence. He then spoke of the disproportionate minority presence in prisons. In order to avoid cycles of poverty and discrimination, Mr. Weissbrodt asked States to examine their treatment of former convicts with respect to their integration back into society.

Expert Motoc suggested that Madame Zerrougui expand her research to include discrimination with regards to women and to the situation de jure and de facto.

Expert O'Connor followed, asking whether the study would take into account the attitudes of society and governments towards ex-convicts, referring to the following unwritten rule: "Once a criminal, always a criminal."

Madame O'Connor inquired as to where, when, and how the punishment starts and ends for such individuals. Mr. Guisse agreed with this inquiry, and furthered the discussion by questioning the necessity of a criminal record after the punishment is received, stating that no "criminal record should be held against [an individual]." He encouraged Special Rapporteur Zerrougui to expand her research to cover post-punishment discriminations such as the discrimination received by those with criminal records.
Mr. Alves spoke next, explaining that poverty was the main cause of discrimination within Africa. This poverty is not just that of "individual poverty, but the poverty of the system as a whole." His explanation served as a reminder of the developing countries with this problem, which without its resolution, no improvements within the criminal justice system and administration is possible. He suggested that she focus on the poverty of whole systems within her report.
Mr. Sorabjee referred to class issues within the judiciary systems of some States. Oftentimes, the poor cannot afford adequate or proper representation. He asked that a "comprehensive service of legal aid" be considered. Expert Sattar agreed, and requested that Madame Zerrougui "deepen" her study.

Expert Eide reminded the Sub-Commission and the Special Rapporteur of the problems of "aliens" and foreigners within prisons. Recently, there an influx of "aliens" within the U.S. and European prisons has caused him concern. The cause, structural patterns, and complimentary affirmative actions, he suggested, should be looked into.

The Special Rapporteur replied, discussing the difficulty with dealing with all the aspects of discrimination. With the limits imposed (e.g. page and word limits for reports), she did not think the report could focus on the post-justice discrimination of ex-convicts, but that a future study could be done. Her report will include race (which is a de jure discrimination) and poverty, and that it was impossible to ignore other categories such as women, foreigners, and indigenous peoples.

Expert Hampson introduced her report on "accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations." It discusses whether force should be used for self-defense or "by all necessary means" and claimed peacekeeping operations sent by States without UN authorization. Her report then focused on the issue of peacekeeping personnel. They, unlike military forces, are difficult to deal with, in terms of punishment procedure. If an operation violated a human rights law, where should legal action be pursued? And if the proceedings were brought to the home state, severity of punishment and the actual implementation of punishment became concerns.

Mr. Sattar's concerns dealt with the increase of countries reluctant to send peacekeeping troops. He questioned if their impunity in this situation would diminish the UN peacekeeping body.

Mr. Yimer asked of "the presence of human rights officers among military operations," and where Madame Hampson saw rules of engagement with respect to her report.

Mr. Weisbrodt expressed his concern over the unclear application of humanitarian and human rights laws to UN personnel. He suggested that a clearer set of standards be communicated to the personnel.

Madame Hampson replied, announcing that her report does not look at the lawfulness of the mission. This was decided at the outset. Her report begins from the fact that the operation is happening. It is about what happens if the rules are broken, so they only look at the rules of engagement to see whether or not a violation occurred, but this usually leaves room for interpretation, so they are therefore "outside the scope of the study." Her report focuses on whose responsibility it is to punish human rights violators in operations. There is no domestic courts' authority for violations committed by foreign peacekeeping troops. She then reiterated that her report would not focus on the lawfulness of operations.

The Madame Chairperson then ended the discussion of experts, shifting the floor to the NGOs to speak with what little time they had left.

The American Association of Jurists representative declared that Resolution 1487 of the Security Council concerning article 16 of the Statutes of the International Penal Court goes against the Geneva Convention on the law of treaties. The delegate then claimed that, under the force of "economic reprisals," the U.S. has forced about 40 countries to accept the resolution.

The Japan Federation of Bar Associations said that national protection systems were meant to help advance "the implementation of international human rights norms" in Japan; however, the implementation of international human rights treaties was extremely inadequate. The JFBA suggested that, in order to set right this injustice, that the First Optional Protocol of the Convention of Civil and Political Rights be ratified.

The representative for the International Educational Development (IED) declared that the military operations in countries such as Iraq are illegal, stating "there can be no rule of law and democracy when one State invades another State without express authorization of the Security Council." The representative urged the Security Council to express its "condemnation" of the events in Iraq. The delegate then went on to urge the Sub-Commission to carry out a plebiscite for Indian-occupied Jammu and Kashmir, arguing that the rule of law and democracy would not be realized without it. The IED also urged the Sub-Commission and Office of High Commission to "pay due attention" to the crisis in the Moluccas in order to account for the status of the states emergency. Finally, the delegate addressed the mislabeling of wars to exercise the right to self- determination and civil wars as terrorism by some States. This criminalizes such groups and those who wish to provide "humanitarian relief" to them.

By: Ashley Faulkner

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