The Sub-Commission finished item 3 today and moved to the consideration of draft resolutions. However, they spent the remainder of the afternoon in private session discussing the drafts and did not actually begin the voting. Nonetheless there were some interesting papers, debates and statements made during today's public sessoin.
An interesting debate arose on the subject of military tribunals, sparked by the presentation by Mr. Decaux of his further report on the administration of justice and military tribunals (E/CN.4/Sub.2/2004/7).
Mr. Casey, the alternate expert from the United States disagreed with several of the principles Mr. Decaux had included in this paper. He said that overall these principles suggest that military justice is inherently weaker than civilian. It depends of course on the particular situation. The military and civilian systems are different because they are designed for different circumstances. I agree civilians as a rule should not be tried by military tribunals. Only extreme cases. E.g., in times of war when the civilian system has broken down.
Ms. Hampson, the expert from the United Kingdom, said while she agreed with Mr. Casey that it is possible for military justice to be a fair form of proceeding, in most countries that has not been the experience. In the US, due in part to the reforms introduced after the Vietnam War, military proceedings there are fair. But only with respect to members of the armed forces.
The debate went on to include when civilians can be tried in military courts, who could be considered a civilian for these purposes, whether terrorists were combatants or civilians, for these purposes, and some pretty detailed parsing of the relevant international treaties on these points.
Every once in a while a speech comes along that stops you short. You might’ve heard hundreds of speeches up to that point in the session, but this one is different. It strikes just the right note. Well written, well delivered and passionately felt. The room gets suddenly quiet. Everyone is listening. Two such speeches occurred today – one from a member, Francoise Hampson (expert from the UK), and one from an NGO speaker, Rachel Brett of the Quakers United Nations Office.
Ms. Hampson’s speech addressed the Draft Declaration on the rights of the disappeared which has been stuck in a drafting group at the Commission level for years, unable to reach the consensus required to finalize the text. Here are our notes of her speech (not verbatim, but as close as we could get it down as it was delivered):
“I would like to raise a subject which is not the topic of any report this year. The subject is disappearances. I begin with a true story. Nine applicants who alleged that 11 of their family members disappeared in a helicopter. Some had seen them detained with others on a hillside. No one now knows where they are. The government will not provide answers. Without exception, at some point in their testimony before the European Court of Human Rights, every one of these applicants said, I want to know what happened to him. If he is dead, where is his grave? It is my experience as a legal representative of the families of the disappeared that they are in absolute pain. They are trapped forever in limbo. To give up trying would be a betrayal. Some think disappearances are just a Latin American phenomenon. I invite those people to look at history – Nazi Germany, African Commission, Amnesty International report in 2002 – Europe, North Africa, Sub Saharan Africa, South Asia, Southeast Asia, South Central Asia, and the Mid East.
Then there are the detainees in Iraq hidden from the International Red Cross. Detainees arrested and transferred secretly. In Pakistan young boys – allegedly flown to the US in March 2003 and no one has heard from them since.
I would like to congratulate the drafters and negotiators in the working group on the draft declaration on disappearances. This project has been pending for years and is still not complete. It is difficult work. Many obstacles are being encountered.
I have three points to make however about that process.
First, it may surprise some, but agreeing on the right not to be disappeared is a problem. It shouldn't be. States have an obligation to prevent disappearances.
Second, it may surprise you too, but the right of a person to know what happened to one’s own family members is also proving difficult to agree upon. This is surprising because every major international human rights instrument provides for such information. Whether you call it a right to know or a right to the truth, it is clear right of a family member.
Third, there is a danger that the working group discussing this matter of a draft declaration on disappearances will become prisoners of consensus. Of course consensus is desirable. But there has to be a bottom line. Where next with the draft declaration? This is one of the texts sent by us to the Commission. I would suggest that our responsibility does not end when we send this draft to the Commission. I would suggest to NGOs that they bring next of kin of the disappeared from all over the world, to the working group meetings. To focus the minds on the issues at hand. This is not a matter of politics. It is a matter of common humanity. I would beg governments present whether involved or not, to make sure the draft gets done right. Don’t let it get trapped in consensus.”
Later in the same day Rachel Brett of the Quakers United Nations Office spoke on the plight of women prisoners and their children. The Quakers have urged that the Sub-Commission take up a multi-year study on this topic, which will hopefully lead to new standards, approaches, and protections. They have also recently released a comprehensive “Preliminary Research Paper” on the topic which is available at their website.
Here are excerpts from Rachel’s speech:
“Women prisoners are often the sole or primary carer for minor children. This means that the imprisonment of the mother cannot be considered in isolation. It is common in many countries for babies and young children to be taken into prison with their mothers. This may well be preferable to separating them. However it also raises complex issues about the facilities available for such children to ensure their own appropriate development - -physical, mental and emotional, including their interaction with other children. Furthermore, there are questions about to what age children should be kept in prison with their mothers – State practice in this area varies considerably (from a few months to 6 years even within Europe), and has to include difficult issues pertaining to the mother’s capacity and suitability, the length of her sentence, and the nature of her crime, in addition to the needs of the child. When the time for separation comes, how can it be handled in a way that minimizes the adverse impact on both mother and child?
Whether children are separated from their imprisoned mother in this way, or at the time of initial imprisonment, what provision is made for the children of imprisoned mothers? The father, grandparents or othe relatives may be able and willing to take care for them, but siblings may be separated from each other in order to lighten the burden of care, or they may be taken into State institutions. What experience is there in seeking to maintain the best links between children and their mother? How can the mental, emotional, physical and social impact of the mother’s imprisonment be minimised for the children, both directly for them in continuing their daily lives, and also in maintaining their relationship with the mother during imprisonment and following her release (if any).
Visiting prisons can be a daunting and frustrating experience for adults and children. Traveling a long distance, entering a grim building, being searched by a strange adult, to spend a short time with a mother that one cannot even touch may be distressing in the extreme to a child.
Because the number of women sent to prison is relatively low, and because of the apparently increasing tendency to send women to prison for lesser, non-violent offences, the woman herself may not anticipate the possibility of imprisonment as the outcome of her trial. She may not, therefore, have made any preparations or provision for her children before being taken into custody. This can cause added distress to both the mother and the children, and indeed may leave children fending for themselves.
The impact of their mother’s imprisonment on the children affects every aspect of their lives and not only their relationship with their mother. It is similar to bereavement, but with added stigma and often less support, from the new carer, teachers, and others.”
Ms. Motoc, as chairperson-rapporteur, presented this year’s report of the working group on the administration of justice (E/CN.4/Sub.2/2004/6). Several new studies and topics will be taken up in next year’s session, including transitional justice and Barbara Frey’s draft guidelines on human rights and use of small arms. NGOs and experts are encouraged to submit working papers and ideas to the group.
The Centre on Housing Rights and Evictions (COHRE) hosted a lunchtime expert panel discussion today on the subject of the right to housing and property restitution for refugees and other displaced persons. Panelist included Scott Leckie of COHRE, Paul Sergio Pinheiro (Sub-Commission expert from Brazil, sho is Special Rapporteur on this topi), Emmanuel Decaux (Sub-Commission expert from France), Aleksander Sarapa of the Norwegeian Refugee Council, and Rick Towle of the Office of the UN High Commissioner for Refugees (who spent several years in former Yugoslavia in the housing return programs there).
The Dayton Accords were one of the first peace agreements to explicity include property restitution as part of the final terms. Putting the appropriate mechanisms in place nonetheless remains key. The former Yugoslavia program is finally winding down after 10 years of resolving conflicting claims. Several speakers noted that Darfur is probably the next big region where effective mechanisms will need to be mobilized – once the conflict is resolved, the long slow process of returning the refugees back to the lives they knew begins. This is an important part of securing lasting peace and stability in a region, and respecting the dignity of those who have been displaced.
The program was excellent. COHRE has produced a number of important studies and reports on this topic, which can be accessed on their website.
Mrs. Chung (expert from South Korea) briefly commented on the statement made by Minnesota Advocates yesterday, as well as on a few other NGOs who spoke on the topic of transitional justice during item 3. She said many countries have experienced this problem, not only Sierra Leone and Peru. Her own country, South Korea, had undergone a transition from an authoritarian regime to democratic rule. She felt that the practice was very mixed, and depends on the history of each case. She noted that very little has been done so far on the subject of norms or standards that would apply to situations of transitional justice. Without having universal norms, transitional regimes will always be subject to political aims.
She also noted that there was very little discussion to date on transitional justice from a gender perspective. She thinks more should be done in this area. She concluded by stating she believed the Sub-Commission could develop some guidelines helping on this subject.
Tomorrow the Sub-Commission will be in voting for most of the day. Friday will be the concluding day of the session.