Questions regarding the deprivation of the right to life,
especially the application of death penalty;
the implementation at the national level of the obligation to provide efficient internal remedies;
and the difficulty to provide proofs with regards to sexual abuses

The first topic examined by the sub-commission on the promotion and protection of human rights, dealt with questions regarding the deprivation of the right to life, especially the application of the death penalty. Mr. El Hadji Guissé, special rapporteur to the sub-commission, started the debate, by reminding the audience that the abolitionist movement, whose aim is to abolish the death penalty, had made some progress in certain countries, although there had been an increase of the death penalty in other countries. And he added: "The countries that have always applied the death penalty the most, have remained the same".
However, Mr. Guissé recognized that in some countries there had been a de facto abolition of the death penalty, where death penalty, though it remained legal, was not applied. Nonetheless, it was argued that the legal abolition of the death penalty was preferable to its de facto abolition that did not guarantee that the death penalty would not be applied in the event of a regime change. In other countries there had been a partial abolition of the death penalty, where civilians were exempted from the death penalty and where it was only applied to military officers.

Also, the experts discussed the various problematic aspects of the death penalty. To start with, Mr. Guissé reminded the audience that, scientifically, it had been proved that the death penalty was not useful, and that it had never discouraged people to commit crimes. Moreover, the fact that a State could kill some people because they had killed other people, was considered problematic.
Furthermore, the fact that the media made the death penalties public was also found problematic. Indeed, Mr. Guissé stressed: "History teaches us that criminals have never renounced to kill because they have never been afraid of the consequences of their acts. And the media, by showing publicly the executions, only increase the courage of those criminals."

The issue of discrimination that has been surrounding the question of the death penalty was also raised. Notably, concerning racial discrimination, Mr. Guissé reminded the audience that among the 3,000 condemned persons that were waiting in the American death rows, most were people of color. Also, it was underlined that the administration of justice was not the same for rich and poor people, and that rich people often found themselves above the law. The administration of justice towards minorities and women was also often found blind, since often those people lack the resources to have a fair trial.
Moreover, all the experts deplored the fact that the death penalty was often applied to juveniles that were under eighteen, although it is written in the Convention for the Rights of the Child, that a juvenile should not have a death penalty. Mrs. Hampson, an expert to the sub-commission, remarked: "The sub-commission for human rights has said in a previous resolution that the execution of juveniles is in breach of international customary law".
And, most experts also criticized the fact that the death penalty has been applied to mentally ill people, although it is written in the domestic law of all the countries, that mentally-ill people are not criminally responsible for their acts. Mrs. Hampson notably gave the example of James Colburn case in the United States, who, though he was mentally sick, was forced to take some medicine during his judgment, so that he could receive a death penalty.

Also, Mrs. Hampson was concerned with the situations where death penalty was imposed by military tribunals, since, when people risked death penalty, it seemed especially important to have a fair trial, and that military tribunals were unlikely to provide a fair trial. Indeed," in military tribunals, the right of appeal is not likely to be independent and there is not likely to be an adequate defense for the accused", said Mrs. Hampson.
Moreover, Mrs. Hampson also talked about the illegality of transfers and extraditions of individuals to countries that applied the death penalty. Mr. Guissé added in this regard that: "It is written that people who risk the death penalty by being extradited, should not be extradited. […] Today, instead of collaborating against crimes, there is a collaboration to promote legal crimes".
Finally, most experts raised the issue of extra-judiciary summary executions, especially since more people have been killed by those executions than by the death penalty. Mrs. Leila Zerrougui, a special rapporteur to the sub-commission, said: "Summary executions constitute a crime in international law". According to Mrs. Barbara Frey, expert for the sub-commission, "many problems of summary executions arise from a lack of training of the police forces, in the principles for the use of force and firearms.". She notably gave the example of the police forces in Thailand, who have been shooting hundreds of people since the beginning of the government's policies against drug trafficking.

To conclude the discussion of this topic, Mr. Guissé recommended that the Working Group seek alternatives to the death penalty that could satisfy States and the victims of the prejudices, although Mrs. Hampson estimated that the only alternative was life imprisonment.

The second topic that was discussed during the session, concerned the implementation at the national level of the obligation to provide efficient internal remedies. The problem is that although most states have ratified the majority of the international instruments relative to human rights, there are still grave violations of human rights in many countries.

Thus there are still unlawful custodies. The problem is that the names of the people that are detained unlawfully, are not on the custody records. Also, some complaints do not get registered. And, Mrs. Hampson said: "The problem is that, although States tend to accept that those actions are criminal, most of them denies that it happens. The problem is the fact, not the interpretation of a fact, as is often the case with regards to the freedom of expression."

Mrs. Hampson stressed that the sub-commission needed detailed evidence from domestic NGOs, of the violations of human rights that occur in countries, and of the lack of internal remedies for those violations. Such an example was actually provided by Interfaith International, whose delegates reported on the lack of internal remedies that existed in China, for the patricians of the Falun Gong who had been victim of a severe repression from the State, since July 1999.

Nonetheless, Mr. Guissé reminded the audience that often, in developing countries, militants of human rights are considered as enemies by the States, so that they cannot denounce the violations of human rights committed by the States. Another problem that he underlined, was that victims often do not know their rights because they are often illiterate, and that therefore they need some good assistants. But good assistants are often missing. Moreover, as Mrs. Zerrougui underlined it, all the victims do not have access to the same remedies.

Mrs. Hampson raised the question of the causes that lead to the non-implementation of international human rights law domestically. "It is important to distinguish whether things are going wrong because of a lack of training, a lack of resources, or other reasons, such as a lack of political will to deliver an effective protection of human rights". Mrs. Zerrougui remarked in this regard: "it is not only a problem of training, but rather of impunity".

Mrs. Hampson stressed the connection that exists between the implementation of human rights law domestically, and the provision of internal remedies to the victims. And, as Mr. Yozo Yokota, an expert to the sub-commission reminded the audience, there are two kinds of remedies: administrative remedies, and judiciary remedies.

The problem with administrative remedies is that, since they are not independent from the government, they might not exist in reality, reminded Mrs. Hampson, with the case of Turkey. On the other hand, Mr. Yokota answered, that the independence of judiciary remedies might be problematic, as it is the case in Japan, where independent judges do not respect the government's advice that they should get more training in human rights law. The problem raised by Mr. Yokota, is that there exists no legal obligation, for the states that have not ratified human rights treaties, to provide remedies to the victims.

The third topic that was discussed, concerned the difficulty to provide proofs with regards to sexual abuses. The issue was presented in a report (E/CN.4/Sub.2/2003/WG.1/CRP.1), by Mrs. Lalaina Rokotaorisoa. Indeed, the main problem with sexual abuses is that it is hard to prove that they have actually occurred. And, justice can only base itself on clear proves that there have been sexual abuses, not merely on converging clues that could indicate the occurrence of such crimes.

Medical statements of sexual abuses can be determinant, and can corroborate with declarations from witnesses. The problem is that, often, for ethical reasons, doctors might want to keep their medical secrecy, rather than reveal violations of human rights. Moreover, it is often the case that the medico-legal community, is doubtful about the validity of the tests available, and of the medical proofs for sexual abuses.
Furthermore, it is always difficult to know if testimonies of sexual abuses, are not false evidence. And, some witnesses might hesitate to testify, fearing some reprisals from the perpetrators of the crimes, or being too traumatized by the sexual abuses they witnessed.

The Internet is also problematic, since, while it is becoming the most performing mean of sexual exploitation and, of exchanges of infantile pornography, the police often lacks the means and the training, to track the criminals on the Internet. This is why the report stresses that international cooperation is important, in order to fight sexual abuses. It also underlines that cooperation between local justices is needed, so that extra-territorial criminal dispositions, like the ones that exist in France, can be applied.
Sexual tourism is also hard to fight, since the resolutions that condemn it, are only recommendations and are thus non-binding.

Since the main factors that contribute to sexual exploitations, are poverty, illiteracy, and the absence of other options to earn money and be able to survive, Mrs. Rokotoarisoa concluded, that the coming challenge to fight those abuses, would consist of being able to break the customary practices and the bad religious interpretations that protect sexual exploitation.

By: Delphine Pastorel, Riad Baazia, Clément Therme.

BACK