COUNCIL HOLDS DIALOGUE WITH EXPERTS ON SUMMARY EXECUTIONS, INDEPENDENCE OF JUDGES AND LAWYERS, TRANSNATIONAL CORPORATIONS
The Human Rights Council this afternoon held a clustered interactive dialogue with Christof Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions, John Ruggie, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, and Gabriela Knaul, the Special Rapporteur on the independence of judges and lawyers.
Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions, in presenting his first report to the Council as mandate holder, said that protecting the right to life was tied to and embedded in other rights, including the right of peaceful assembly. If the right to peaceful assembly was suppressed, demonstrations could easily escalate and turn violent. If the right to peaceful assembly was given due recognition, confrontation would be defused and bloodshed averted. Legal standards were minimum standards and in most cases the optimal preservation of life would depend on the higher standards posed by the professionalism of those who managed demonstrations, which in turn depended on their level of training, their understanding of the dynamics of crowd behaviour, and the availability of appropriate equipment. A review of international human rights law showed that with respect to the right to peaceful assembly, there was not a single legal instrument that had set out the relevant norms in a comprehensive way; the main elements of such a body of law could be found scattered across the jurisprudence of various regional and United Nations human rights bodies, supplemented by national standards.
John Ruggie, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, presented his final report as the Special Representative and it was his finding that multilateralism worked. The mandate on business and human rights began in 2005 amidst divisive debate among stakeholders and little consensus among States. Three years later, the Council had been unanimous in welcoming the Protect, Respect and Remedy Framework that he had developed. The framework had addressed the “what” question: what States and business enterprises needed to do to ensure business respect for human rights. Today, the Council had before it the Guiding Principles that addressed the “how” question: how to move from concept to practical, positive results on the ground. This Council had recognised the need for a coherent set of ground rules in the area of businesses and human rights and now the world was witnessing significant global convergence around a United Nations initiative.
Gabriela Knaul, the Special Rapporteur on the independence of judges and lawyers, said that the achievement of gender equality and the empowerment of women required a legal system that was consistent with international human rights norms and standards. An independent, impartial and gender-sensitive judiciary therefore played a crucial role in advancing women’s human rights, achieving gender equality and ensuring that gender considerations were mainstreamed into the administration of justice. Her report also addressed the major obstacles to women’s pathways to justice, including the so-called “feminization of poverty” as well as laws, policies and practices that discriminated against women. She noted challenges in certain countries including laws, policies, plans and programmes that disregarded the goal of gender equality and the lack of recognition and institutionalization of equal rights for women and men. She noted that there were countries where gender equality was recognized by law, but not reflected in practice.
Albania, Ecuador, Mexico, Mozambique, Kenya and Venezuela spoke as concerned countries.
In the interactive discussion, the following countries also spoke: Australia, Algeria, China, Cuba, Norway, Belgium, Guatemala, the Maldives, Hungary, Iran, Sweden, India, Nigeria on behalf of the African Group, the United States, the European Union, the United Kingdom, the Russian Federation, Poland, Egypt, Paraguay, Ghana, and Pakistan on behalf of the Organization of the Islamic Conference.
Iraq spoke in right of reply.
During the interactive dialogue regarding extrajudicial, summary or arbitrary executions, speakers were concerned about the reports of arbitrary and extrajudicial killings in various parts of the world by security forces including in Syria, Libya, Iran and Yemen. There was a need to improve management techniques in regard to peaceful demonstrations and to limit police use of force to cases of self-defence. One speaker wondered whether principles regarding the management of protests would be more applicable to the mandate of the new Special Rapporteur on the right of peaceful assembly and association. Another speaker said that in exercising the right to assembly, demonstration and protest, citizens should observe the law and not violate the rights of other citizens.
With regards to the issue of human rights and transnational corporations and other business enterprises, speakers said the framework reference prepared by the Special Rapporteur on human rights and transnational corporations and other business enterprises was a major contribution. The principles, however, should not be an end in themselves but a departure point for examining the actions of transnational corporations. Mr. Ruggie had delivered his mandate in a sterling way. The principles were the product of extensive research and consultation and could provide real change on the ground. A solid foundation should be laid for an effective follow-up and would consolidate the important work undertaken, and establish the principles as a global standard.
Regarding the independence of judges and lawyers, some speakers said it was difficult to see how women’s access to justice was related to the suppression of the independence of legal professionals, and thought the issue would have been better treated under the mandate of a different Special Rapporteur. The effective realisation of the right to access to justice, including for women, was directly related to the institutional and material conditions in which justice systems operated. The right of women to effective judicial protection entailed foremost the recognition of women’s rights to effective remedy and fair trial guarantees. Some speakers spoke of measures they had taken to increase the representation of women among judges.
The next meeting of the Council will be at 9 a.m. on Tuesday, 31 May when it will conclude its clustered interactive dialogue on extrajudicial, summary or arbitrary executions, human rights and transnational corporations and other business enterprises, and the independence of judges and lawyers. It will then hold a clustered interactive dialogue with the Special Rapporteur on the rights of migrant workers, the Special Rapporteur on the right to education, and the Independent Expert on cultural rights.
Documentation
The Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, (A/HRC/17/28), provides an overview of the activities of the mandate over the past year. It also discusses the legal norms applicable to the use of lethal force during demonstrations. Based on a study covering a sample of 76 countries, the Special Rapporteur concludes that many domestic legal systems do not adhere to international standards in respect of the right to freedom of assembly, and the use of force during demonstrations. The Special Rapporteur proposes some entry points and strategies to ensure greater compliance with international standards.
Communications to and from Governments, (A/HRC/17/28/Add.1), contains a comprehensive account of communications sent by the Special Rapporteur of extrajudicial, summary or arbitrary executions to Governments between 16 March 2010 and 15 March 2011, along with replies received between 1 May 2010 and 30 April 2011. During the period under review, the Special Rapporteur sent 123 communications to 52 countries and 3 actors (including 54 urgent appeals and 69 allegation letters). The main issues covered in the communications were the death penalty (24), deaths in custody (10), death penalty for minors (4), excessive use of force (30), impunity (3), attacks or killings (33), armed conflict (5), death threats (6) and other (8).
Mission to Ecuador 50 to 15 July 2010, (A/HRC/17/28/Add.2), notes that the homicide rate has skyrocketed in Ecuador over the past 20 years. In the north, the conflict in Colombia has now spilled over into Ecuador and the number of illegal armed groups operating at the border has grown significantly. Lynching, social cleansing and abuses by rural juntas are serious problems in some areas of the country, but are underreported and insufficiently studied. Impunity is a significant cause and aggravator of all of these types of killings. Police and prosecutors are often poorly trained and resourced. Witnesses often do not know about or trust the witness protection programme. The courts are slow. Corruption and threats in the criminal justice system are common and skew “justice” in favour of the violent, wealthy and powerful.
Mission to Albania 15 to 23 February 2010, (A/HRC/17/28/Add.3), focuses primarily on extrajudicial executions in the context of blood feuds and domestic violence. The Special Rapporteur also investigated domestic violence against women, which is pervasive in Albania and has resulted in victims’ deaths. Despite efforts by the Government and international donors, much remains to be done by the Government, including the allocation of necessary financial and other resources to fund shelters, counselling and educational programmes.
Follow-up Mission to Kenya, (A/HRC/17/28/Add.4), notes that during his visit the Special Rapporteur documented widespread extrajudicial killings by the police, lack of accountability for killings that occurred during the 2007 post-election violence, killings that occurred at Mt. Elgon and intimidation of human rights defenders who cooperated with the Special Rapporteur. Since then no concrete actions have been taken to implement many of the recommendations made by the Special Rapporteur. Much remains to be done to address and overcome extrajudicial killings, police killings as a result of excessive use of force held accountable for the 2007-2008 post-electoral violence or for the killings at Mt. Elgon. Investigations into the killing of two human rights defenders, who had cooperated with the Special Rapporteur, remain inconclusive. The Government’s commitment to address grave human rights abuses appears to be very minimal. The rate of investigations and prosecution of police killing remains unacceptably low.
Preliminary Report on Follow-up to Country Recommendations: United States of America, (A/HRC/17/28/Add.5), provides an overview of the main issues addressed in the report of the previous mandate holder, which will be addressed by the Special Rapporteur in his follow-up report, to be presented at a future session of the Council.
Follow-up Mission to Country Recommendations: Afghanistan, (A/HRC/17/28/Add.6), analyses the progress made by Afghanistan in implementing the recommendations made by the previous mandate holder following his visit to the country from 4 to 15 May 2008 (A/HRC/11/2/Add.4).
The Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, (A/HRC/17/31), is the final report of the Special Representative. It summarizes his work from 2005 to 2011, and presents the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” for consideration by the Human Rights Council.
Piloting Principles for Effective Company-Stakeholder Grievance Mechanisms: A Report of Lessons Learned, (A/HRC/17/31/Add.1), sets out key lessons learned from a pilot project conducted in 2009-2010 to test the practical applicability of a set of principles for effective non-judicial grievance mechanisms that address complaints or disputes involving businesses and their stakeholders. The principles were developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises and set out in his reports to the Human Rights Council in 2008 (A/HRC/8/5) and 2009 (A/HRC/11/13).
Human Rights and Corporate Law: Trends and Observations from a Cross-National Study conducted by the Special Representative, (A/HRC/17/31/Add.2), notes that in early 2009, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises established the Corporate Law Project (CL Project). The Project involved more than 20 leading corporate law firms from around the world assisting pro bono to identify whether and how corporate and securities law in 39 jurisdictions encourages or impedes companies’ respect for human rights. The Special Representative also convened several expert consultations to discuss key findings and next steps. To the Special Representative’s knowledge, the Project is the first in-depth, multi-jurisdictional exploration of the links between corporate and securities law and human rights.
Principles for Responsible Contracts: Integrating the Management of Human Risks into State-Investor Contract Negotiations: Guidance for Negotiators, (A/HRC/17/31/Add.3), identifies 10 key Principles to help integrate the management of human rights risks into investment project contract negotiations between host State entities and foreign business investors. The guide is the product of four years of research and inclusive, multi-stakeholder dialogue carried out under the Mandate of the Special Representative of the United Nations Secretary-General for Business and Human Rights, Professor John Ruggie.
Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: Business and human rights in conflict-affected regions: challenges and options toward State responses, (A/HRC/17/32) outlines a range of policy options that home, host and neighbouring States have, or could develop, to prevent and deter corporate-related human rights abuses in conflict contexts.
The Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, (A/HRC/17/30), covers the activities carried out by the Special Rapporteur in 2010 and focuses on some aspects of the multi-faceted relationship between gender and the judiciary, within the broader context of the administration of justice. Within the thematic cluster on gender and the administration of justice, the report addresses major obstacles to women’s access to justice, including the feminization of poverty as well as laws, policies and practices that discriminate against women, and elaborates on the conditions required for the effective realization of women’s rights to access to justice. Within the thematic cluster on gender and the judiciary, the report focuses on the conditions for developing a gender-sensitive judiciary, and the role of the judiciary in advancing women’s human rights. The Special Rapporteur also presents a number of good practices and makes recommendations to Governments, the international community and other stakeholders.
Communications to and from Governments, (A/HRC/17/30/Add.1), presents summaries of the urgent appeals and allegation letters transmitted by the Special Rapporteur to governmental authorities between 16 March 2010 and 15 March 2011, and of the press releases issued during the same reporting period. During this period, the Special Rapporteur sent a total of 97 communications and issued 6 press statements on situations of particular concern or to highlight a specific event.
Mission to Mozambique 26 August to 3 September and 6 to 10 December 2010, (A/HRC/17/30/Add.2), examines factors impacting the independence of the judiciary and the conditions for ensuring the free and independent exercise of the legal profession in Mozambique, such as the participation of the judiciary in deciding on its budget; court fees; salaries; and the assignment of cases. It includes a brief analysis of the legal and policy framework regulating the judiciary and focuses on the barriers to the access to justice; analyses the classification and promotion of judges; the tenure and removability of magistrates; the correctional service and fair trial guarantees; and gender and the judicial sector; presents a number of encouraging initiatives implemented by the Government of Mozambique and civil society organizations with the support of the United Nations and the donor community; and concludes with recommendations for strengthening the judicial system and ensuring the independence of the judiciary; the independence and integrity of magistrates and judges; the impartiality of prosecutors and the free exercise of the legal profession.
Mission to Mexico 1 to 15 October 2010, (A/HRC/17/30/Add.3), includes a thorough analysis of the federal executive branch’s initiative for the reform of the military justice system, which is considered to be unsatisfactory. Reference is also made to constitutional reforms relating to human rights, the right to amparo and proposed federal legislation on the juvenile justice system. In discussing major challenges for the justice system, in addition to the escalating violence and a growing lack of public safety attributable primarily to organized crime, mention is made of the issue of impunity. The report also covers issues relating to the legal profession and the work of public defenders. The report closes with an analysis of the issue of access to justice, an area in which the Government of Mexico must do more for the sake of its people. Particular attention is devoted to the difficulties which indigenous peoples and women have in gaining access to the justice system.
Presentation of Reports by the Experts
CHRISTOF HEYNS, Special Rapporteur on extrajudicial, summary or arbitrary executions, said that there was a thematic report on the use of lethal force by the police during situations of crowd control that had been started in the latter half of 2010. The Special Rapporteur had gathered the legislation of 76 States dealing with the use of force during demonstrations, which were measured against international norms. The Special Rapporteur visited Zambia and South Africa to talk with those involved in riot policing on a practical level. All available legislation would be posted on the website of the mandate. The report identified steps that could be taken to better protect the right to life during protest, including the lives of protestors, bystanders and law enforcement officials. The challenge was to ensure that steps were taken well in advance to avert situations where such violence and attendant losses of life occurred, including ensuring that appropriate legal frameworks were in place to deal with such situations.
Protecting the right to life was tied to and embedded in other rights, including the right of peaceful assembly. If the right to peaceful assembly was suppressed, demonstrations could easily escalate and turn violent. If the right to peaceful assembly was given due recognition, confrontation would be defused and bloodshed averted. Legal standards were minimum standards and in most cases the optimal preservation of life would depend on the higher standards posed by the professionalism of those who manage demonstrations, which in turn depended on their level of training, their understanding of the dynamics of crowd behaviour, and the availability of appropriate equipment. A review of international human rights law showed that with respect to the right to peaceful assembly, there was not a single legal instrument that had set out the relevant norms in a comprehensive way; the main elements of such a body of law could be found scattered across the jurisprudence of various regional and United Nations human rights bodies, supplemented by national standards.
With respect to the use of lethal force by law enforcement officers, there was a fairly coherent set of rules set out in soft law instruments, notably the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms. The general standard was that intentional lethal force could be used only in self-defence to protect the life of the law enforcement official or someone else. The Special Rapporteur’s review of the national legislation of some 76 States revealed that domestic standards with respect to the use of force during demonstrations differed greatly from international norms. In many cases force, including lethal force, was permitted by domestic law if its use was viewed as reasonable or necessary without further qualification and in some cases the jurisdiction of the courts was ousted in respect of such actions. The Special Rapporteur recommended an international process to work towards a greater codification of assembly law, including the use of force during demonstrations to be initiated and various entry points should be sought to ensure greater compliance of domestic laws with these international standards.
Concerning the Special Rapporteur’s visit to Albania, it was noted that the country had made significant progress in terms of human rights and respect for the rule of law and had enacted comprehensive democratic, economic, social and legal reforms. However, the country faced significant challenges, including corruption, limited resources and political gridlock between the main parties. In the report concerning the visit to Ecuador, a high level commitment to human rights by the current Government was noted, however the country faced major challenges related to extrajudicial executions. The Special Rapporteur reviewed follow-up reports on country visits to Afghanistan, Kenya and the United States. The Special Rapporteur said he would be investigating a new extended video from Sri Lanka which showed naked people with their hands tied behind their backs being executed against the backdrop of corpses of other men and women with similar head wounds. The Special Rapporteur said following his investigation, he believed that a prima facie case of serious international crimes had been made by the video. All the available evidence should be investigated by an international panel with the necessary fact-finding and investigative mandate to establish accountability for these deeds.
JOHN G. RUGGIE, Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, said that multilateralism worked and that Special Procedures of the Human Rights Council could make a difference, even where discord and contention once prevailed. The mandate on business and human rights began in 2005 amidst divisive debate among stakeholders and little consensus among States. Three years later, the Council had been unanimous in welcoming the “Protect, Respect and Remedy” framework that he had developed. The framework had addressed the “what” question: what States and business enterprises needed to do to ensure business respect for human rights. Today, the Council had before it the Guiding Principles that addressed the “how” question: how to move from concept to practical, positive results on the ground. The Guiding Principles’ normative contribution lay not in the creation of new international law obligations, but in elaborating the implications of existing standards and practices for States and businesses, integrating them within a single template and identifying where the current regime fell short and how it should be improved. This Council had recognised the need for a coherent set of ground rules in the area of businesses and human rights and now the world was witnessing significant global convergence around a United Nations initiative, including by the Organization for Economic Cooperation and Development, the International Finance Corporation, the International Organization of Standards and scores of individual companies, corporate law firms and institutional investors.
The challenging journey that had started in 2005 was now nearing a destination, Mr. Ruggie said. The mandate had enjoyed the support of many people and had been welcomed in many places. The process of generating the Guiding Principles had been intensely consultative and evidence-based, with written and online submissions from individuals and institutions from more than 120 countries. The matter of how to best follow-up on this mandate was in the good hands of the Council, said Mr. Ruggie who then made some observations based on lessons learned along the way, including that capacity-building should be a central component of any follow-up activity, that follow-up activity retain a meaningful multi-stakeholder dimension and that the next phase not try to squeeze all elements of business and human rights into an all-encompassing international instrument, which would be counterproductive as it would take the debate back to pre-2005 days. A multilateral approach to providing greater legal clarification might be warranted in response to the diverging national interpretations of the applicability to business enterprises of international standards prohibiting gross human rights abuses, possibly amounting to the level of international crimes. Such abuses tended to occur most frequently in areas where the human rights regime could not be expected to function as intended, such as armed conflict or other situations of heightened risk. In conclusion, Mr. Ruggie said that the Council would seize the opportunity provided by the remarkable consensus and convergence of approaches that had been achieved, endorse the Guiding Principles and then build on its solid foundation, step by step in the years ahead.
GABRIELA KNAUL, Special Rapporteur on the independence of judges and lawyers, said that the achievement of gender equality and the empowerment of women required a legal system that was consistent with international human rights norms and standards. An independent, impartial and gender-sensitive judiciary therefore played a crucial role in advancing women’s human rights, achieving gender equality and ensuring that gender considerations were mainstreamed into the administration of justice. Her report also addressed the major obstacles to women’s pathways to justice, including the so-called “feminization of poverty” as well as laws, policies and practices that discriminated against women. She noted challenges in certain countries including laws, policies, plans and programmes that disregarded the goal of gender equality and the lack of recognition and institutionalization of equal rights for women and men. She noted that there were countries where gender equality was recognized by law, but not reflected in practice. The Special Rapporteur noted that addendums 2 and 3 to her report detailed her visits to Mozambique and Mexico. In terms of Mozambique, Ms. Knaul said that differential resources between the judiciary in Maputo and outside the capital resulted in differential access to justice, but she also noted that there were a number of encouraging initiatives implemented by the government and civil society organizations with the support of the United Nations and the donor community.
The Special Rapporteur noted in addendum 3, which detailed her visit to Mexico, that federal justice was independent and impartial. Ms. Knaul said that the federal judiciary was effective in its actions regarding the situation of violent acts, primarily involving criminal groups involved in organized crime. The Special Rapporteur said her future activities included the presentation of reports on visits that she had undertaken to Bulgaria and Romania and she planned to visit Turkey in the near future. She would also submit a global thematic study to the Council that it had requested in September 2010. She noted that the subject of the report included information on national human rights institutions, courts of justice and magistrates’ associations, as wells as bar associations and non-governmental organizations. She expected that the outcome of the two-stage process would allow her to prepare a document on “Consolidation of Fundamental Guidelines for the Effective and Continuous Capacity Building of Magistrates, Lawyers, Public Defenders and Prosecutors in International Human Rights Law.”
Statements by Concerned Countries
SEJDI QERIMAJ (Albania), speaking as a concerned country, said that the Government welcomed the visit by the Special Rapporteur on extrajudicial, summary or arbitrary executions which took place in 2010 and lasted over a week. The visit was yet again proof of the added value of the Special Procedures to the area of the protection and promotion of human rights. The Government said that with respect to the problem of blood feuds, was in the past as the Government had used mediation and ongoing dialogue to resolve such problems. Regarding domestic violence, the Government had fought this by adopting legislation, including a new law in 2010, which aimed to fill the gaps that existed in the preceding legislation with the establishment of the first national facility for victim rehabilitation. Police officers and social workers were also trained to better identify victims of domestic violence. The Albanian Government regretted that the Special Rapporteur referred to Mr. Dick Marty’s report which was not based on facts. The Government reminded the Council that the Hague Tribunal was the only qualified body to investigate crimes committed in the former Yugoslavia and the Government rejected the implication that either Albania or Kosovo were involved in an organ trafficking network.
MAURICIO MONTALVO (Ecuador), speaking as a concerned country, said it was grateful for the Special Rapporteur’s presentation of the report on extrajudicial, summary or arbitrary executions. The Government believed it would contribute to its efforts to ensure the full enjoyment of human rights. The Government of Ecuador had taken certain steps to reform institutions to enhance the enjoyment of human rights. As mentioned in the report, the northern border was of special concern, and it should be noted that the actions of FARC (Revolutionary Armed Forces of Colombia) had been a concern in this area. There had been an increase in Ecuadorian security personnel along the border, as more controls had been carried out to prevent recruitment for forces in Columbia and human rights abuses along the border, but these activities were not in themselves human rights violations. Necessary investigations had been launched concerning any abuse of power committed by police or armed forces. There were questions about the scope and mandate of the indigenous justice system. Ecuador had taken action in regard to extrajudicial activities, but these could not be referred to as lynchings. The government was working to improve and integrate the justice system, and strengthen judicial careers and judicial educational institutions.
SALVADOR TINAJERO ESQUIVEL (Mexico), speaking as a concerned country, said they were grateful for Special Rapporteur Gabriela Knaul’s visit to Mexico and her look at the legal system. Mexico noted that a few weeks ago, their constitutional reform process on human rights was completed. They noted that the progress was crosscutting and efforts were under way to bring these reforms to basic principles. Mexico noted that the reform addressed issues which were raised by the Special Rapporteur in her report. Mexico also noted that States’ obligations were established at the constitutional level to promote respect and to protect and guarantee human rights. There had been positive reactions from the UN system which described the reform as the greatest advance in human rights in Mexico in years and the effort showed the dedication of public officials to respect the human rights of individuals. The reform ensured that the entire Mexican legal framework was consistent with the international human rights system and Mexico wanted to ensure that legal categories such as protective custody were subject to full controls.
FRANCES RODRIGUES (Mozambique), speaking as a concerned country, said it had welcomed the visit of the Special Rapporteur on the independence of judges and lawyers as her work in upholding human rights had been a central part of the Government’s work. The authorities in Mozambique gave all necessary assistance to the Special Rapporteur who carried out broad based consultations with people at the central, provincial and local government level in addition to civil society actors. Many of the challenges and difficulties raised in the report were already identified by the Government and most had their roots entrenched in history. At independence, the justice system had not covered the entire country and it represented a distorted reality. Six years ago when the war ended, the Government concentrated its efforts on modernizing the justice system and agreed with the Special Rapporteur’s recommendation that the international community should assist Mozambique in implementing reforms. Eighty per cent of the population was concentrated in rural areas which required policies and interventions that respected such sensitivities. The Government requested assistance from international agencies to enhance capacity building and modernization of the justice sector.
ANTONY ANDANJE (Kenya), speaking as a concerned country, commented on the report of the former Special Rapporteur for extrajudicial, summary and arbitrary execution Philip Alston. The Government of Kenya, in June 2009, rejected the report of Philip Alston and confirmed that its position remained the same. Resolution 16/251 of 16 March 2006 prohibited Special Rapporteurs from interfering with political issues in Member States and the Special Rapporteur failed to adhere to this mandate. The name-calling and other political statements included in the report were a clear violation of the code of conduct and put into question the independence and adherence to the mandate of the Special Rapporteur. On 27 August 2010 Kenya voted in a referendum on a new constitution, which would strengthen the institutional and legal framework for the promotion and protection of human rights and judicial candidates were appointed in a transparent manner. With regard to police reforms, three bills had been submitted to Congress, which would ensure the accountability of the police, professionalize their welfare and increase transparency. Kenya believed these reforms would ensure that law enforcement agencies would promote human rights and accountability.
EDGARDO TORO CARRENO (Venezuela), speaking as a concerned country, said Venezuela was grateful for the presentations by the Special Rapporteurs. Venezuela noted mentions of concern about attacks on the independence of judges in Venezuela with no further details. Venezuela said these mentions were speculative and the result of a concerted media campaign. Regarding Judge Afiuni, the delegation said there were contradictory statements in the report of the Special Rapporteur where it was mentioned that no information was received on whether Ms. Afiuni was housed separately or with other prisoners. Venezuela noted that contrary to this, elsewhere in the report the Special Rapporteur noted that it was informed that Ms. Afiuni was under house arrest. Venezuela went on to say that Ms. Afiuni was recuperating from an operation. Venezuela noted that it was fully disposed to continue working with the mandates of the Human Rights Council.
Interactive Dialogue
PAUL WYPER (Australia) said Australia was concerned about the reports of arbitrary and extrajudicial killings in various parts of the world by security forces including in Syria, Libya, Iran and Yemen. The Government would welcome further details on domestic implementation, including the role of national human rights mechanisms in improving these situations. Over the past six years the Special Representative on the issue of human rights and transnational corporations and other business enterprises had worked inclusively with States, industry and civil society to build bridges and achieve outcomes. Chapter two of the Guiding Principles was an excellent reference point for businesses in pursuing corporate social responsibility in relation to human rights. Appropriate tools, including guidelines for small and medium enterprises, would need to be developed. In Australia it was unlawful to discriminate based on sex and the Government promoted non-discriminatory justice outcomes for women. Australia would like to know how the international community could assist individual States in improving women’s access to all levels of justice, whether formal or through informal, community-based services.
IDRISS JAZAIRY (Algeria) said Algeria read with interest the Special Rapporteur’s report on the independence of judges and lawyers, however, Algeria noted that the issue would have been better treated under the mandate of a different Special Rapporteur. It was difficult to see how women’s access to justice was related to the suppression of the independence of legal professionals. There was no obstacle for women to exercise rights to access the judicial system. Justice was provided by a system of legal aid, available to citizens without distinction. Access to judicial proceedings was already guaranteed, but was further strengthened in judicial reforms. With respect to the Special Rapporteur’s report on extrajudicial, summary or arbitrary executions, Algeria took note of the need to improve management techniques in regard to peaceful demonstrations and to limit police use of force to cases of self-defence. Regarding paragraph 143 of the report of Special Rapporteur Christof Heyns, Algeria inquired whether principles regarding the management of protests would be more applicable to the mandate of the new Special Rapporteur on the right of peaceful assembly and association. Algeria commended the work of the Special Rapporteur on human rights and transnational corporations and other business enterprises. The framework reference was a major contribution. The principles, however, should not be an end in themselves but a departure point for examining the actions of transnational corporations.
TIAN NI (China) said that in exercising the right to assembly, demonstration and protest, citizens should observe the law and not violate the rights of other citizens. China noted that it attached importance to protecting citizens’ right to life and the delegation had listened attentively to the report of the Special Rapporteur on human rights and transnational corporations. China noted that its Government emphasized corporate social responsibility and in 2008 it had issued guidelines to corporations on the implementation of corporate social responsibility. China noted that laws should be in place and followed with regard to wage protection, for example. On the report of the Special Rapporteur on the independence of judges and lawyers, China noted the emphasis on the promotion of gender equality in the administration of justice and said that it had taken measures to increase the representation of women among judges, who currently made up one quarter of judges.
JUAN ANTONIO QUINTANILLA (Cuba) said that Cuba hoped the Special Rapporteur would include in her study the impact of a manipulative press and the vengeful attitude of the Government of the United States with their continued detention of five Cuban prisoners. The Government would like to hear from the Special Rapporteur on the unfair detention for 13 years of these individuals. Cuba noted that the rights to life, freedom and personal security were pillars in the actions of authorities in Cuba and the operation of society as a whole. Criminal liability was increased when such behaviour was the result of abusive power or authority. Violence against individuals was prevented by education while the right to life was protected by the development of social policies; for example in Cuba the enfant mortality rate was 4.5 for every 1,000 live births and life expectancy was 80 years old.
BENTE ANGELL-HANSEN (Norway) said Norway would comment on the work of the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, John Ruggie. With respect to the Guiding Principles for the implementation of the United Nations “Protect, Respect and Remedy” framework, Mr. Ruggie had delivered his mandate in a sterling way. The principles were the product of extensive research and consultation and could provide real change on the ground. A solid foundation should be laid for an effective follow-up and would consolidate the important work undertaken, and establish the principles as a global standard. Endorsement of the Guiding Principles would provide necessary credibility to the follow-up. Norway and the other core sponsors, Argentina, India, Nigeria and the Russia Federation, would focus on implementation and dissemination of the principles across regions and business sectors. It would be vital to secure multi-stakeholder involvement and an annual platform where all voices could be heard and for this reason, the core sponsors would propose an annual forum for business and human rights to maintain and build on the constructive involvement by all stakeholders achieved to date.
YANNICK MINSIER (Belgium) thanked the Special Rapporteurs for their respective reports. Belgium welcomed the first annual report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on the preservation of life and noted that it highlighted that force should only be used as a last resort and should always meet the principles of legality and proportionality. Belgium asked the Special Rapporteur to indicate which national legislations could be used as inspiration for this model law. Regarding the report of the Special Rapporteur on human rights and transnational corporations, Belgium noted that in 2007 it had highlighted the links between natural resources extraction and human rights. It noted that the Special Rapporteur’s Guiding Principles were a critical foundation for further work and priority must be given to them. Belgium noted the need to verify that the principles were applicable on the ground and that there was the political will to apply them among States.
CARLOS RAMIRO MARTINEZ ALVARADO (Guatemala) said Guatemala welcomed the Guiding Principles developed by the Special Representative to the Secretary General on human rights and transnational corporations as they showed there was a commitment from both businesses and States to respect human rights. Guatemala asserted that the State had the primary responsibility to act and prevent the violation of human rights by individuals and by corporations. The Guiding Principles were a first step and the Government called for their application to be strengthened through international cooperation and asked for guidance on how to proceed in this manner. At the national level in Guatemala, a series of changes had occurred as national businesses had coordinated efforts to address natural disasters and climate change.
IRUTHISHAM ADAM (Maldives) commented on the report of the Special Rapporteur on extrajudicial, summary and arbitrary executions, saying that States should not use security concerns to enact sweeping emergency laws. States had an obligation to ensure assemblies were orderly and did not endanger the safety of populations. The Maldives asked what international guidance was available to ensure that laws on the right to assembly were appropriate and what capacity building support was available. The Maldives had a judiciary that was strong and independent as well as accountable to the population, but the Government invited the International Court of Justice to review the judiciary given recent events that brought its accountability into question. However, little change had been made in the judiciary of the Maldives after the International Court of Justice issued its report. The Maldives asked the Special Rapporteur to comment on the recent developments concerning the judiciary in the Maldives and also to provide recommendations on appropriate laws, legislation and other mechanisms to ensure a fully independent, accountable and professional judiciary.
ANDRAS DEKANY (Hungary) said that Hungary was committed to the independence of judges and lawyers and in concrete terms this had importance in the right not to be subjected to torture, upholding human rights while countering terrorism, protection of women’s human rights, and human rights and the fight against impunity. Turning to the report presented by the Special Rapporteur on the independence of judges and lawyers, Hungary said that the effective realisation of the right to access to justice, including for women, was directly related to the institutional and material conditions in which justice systems operated. The right of women to effective judicial protection entailed foremost the recognition of women’s rights to effective remedy and fair trial guarantees. The report also mentioned some harmful practices, including crimes committed in the name of “honour” that continued to be at the root of the most serious routine violations of women’s right to equality before the courts and the principle of non-discrimination. Hungary asked the Special Rapporteur on the independence of judges to update the Council regarding reprisals against judges and lawyers cooperating with United Nations human rights mechanisms in light of the individual complaints received during the reporting period.
SEYED HOSSEIN ZOLKATHARI (Iran) said that the report by the Special Rapporteur on extrajudicial, summary or arbitrary executions had referred to requests for 2010 country visits to Iran. The Government pointed out that since 2001 a standing invitation existed for the Special Procedures and so far six visits had taken place which demonstrated Iran’s intention to further its cooperation with international human rights mechanisms. The Government had decided to devise new national mechanisms for more constructive cooperation and interaction with Special Rapporteurs. The Special Rapporteur’s press release dated 2 February 2011 about the number of death sentences in Iran was based on unsubstantiated reports and had reached conclusions which were absolutely far from the reality on the ground. The Government welcomed the hard work done by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises on drafting the Guiding Principles, but said these were simply a starting point to sensitize the States and business enterprises on the human rights challenges they faced in business operations.
JAN KNUTSSON (Sweden) expressed Sweden’s appreciation for the first report of Special Rapporteur Christof Heyns and welcomed clarifications on how international legal standards should be applied in domestic law. Sweden noted that in the report it was mentioned that international law tended to focus on ensuring peace, while domestic law often focused on law enforcement. Sweden asked for examples of how national law could be drafted to better ensure protection of peaceful demonstrators. Sweden welcomed the report on the events taking place in the last days of conflict in Sri Lanka. Sweden expressed its appreciation for the work of Special Representative John Ruggie and the tasks he carried out in establishing Guiding Principles for how the “Protect, Respect and Remedy” framework should be upheld.
GOPINATHAN ACHAMKULANGARE (India) extended a warm note of appreciation to John Ruggie for the outstanding and exceptional work done in the discharge of the mandate over the past six years. His extensive programme of research had resulted in a number of documents which in turn had created the foundation for and informed discussion on businesses and human rights. The Council’s endorsement of the Guiding Principles would not bring businesses and human rights challenges to an end. Business was poorly acquainted with the language of human rights and could adversely affect human rights. Mr. Ruggie’s work had laid a foundation by establishing a common global platform for further action and the task before the Council was to promote the dissemination and effective implementation of the guiding principles. As a member of the core group of sponsors of the mandate, along with Norway, the Russian Federation, Nigeria and Argentina, India sought the support of the Council in this initiative.
OSITADINMA ANAEDU (Nigeria), speaking on behalf of the African Group, said the African Group shared the view of the Special Rapporteur on extrajudicial, summary or arbitrary executions that it was inconceivable that State authorities would allow protests, under whatever guise to take place without any restrictions, especially if these protests had the potential to disrupt social and economic activities and in some instances could lead to loss of life. States had not only a responsibility to take necessary preventive measures if such demonstrations targeted national security, but they also had a duty to maintain the public order necessary for the enjoyment of human rights for all. The African Group agreed that necessary and adequate training should be provided to law enforcement agencies dealing with demonstrations in order to minimize the loss of life in such instances. The African Group said that the Guiding Principles by the Special Rapporteur on the issue of human rights and transnational corporations was a good effort towards sensitizing States and business enterprises and the delegation would appreciate further insight into how these Guiding Principles could be complied with in the absence of any monitoring mechanism under international human rights law.
EILEEN CHAMBERLAIN (United States) thanked Special Rapporteur Christof Heyns for his work on extrajudicial, summary or arbitrary executions and looked forward to working with the Special Rapporteur on the recommendations of his follow-up report on the United States. The United States observed the special attention of the Special Rapporteur to the “Channel 4 videotape” covering events in Sri Lanka. He confirmed that the video was authentic and requested that the acts depicted be investigated by a domestic and international investigative body. The United States asked for more information about cooperation between Special Rapporteur Heyns and Sri Lankan authorities. The United States expressed appreciation for John Ruggie’s report in advancing the mandate of human rights and business. The framework was a significant achievement and provided a beneficial starting point for advancement in the area of human rights and business. The implementation phase would be essential to fulfilling the Guiding Principles. The challenge would be that, due to the myriad of stakeholders, there was no one-size-fits-all solution. The United States expressed appreciation to Special Rapporteur Knaul for her report to the Council and her work undertaken on the independence of judges and lawyers and welcomed the report’s dual focus on the administration of justice for women. However, the United States inquired whether the Special Rapporteur would have recommendations for action the Council could consider in order to effectively address these challenges.
NICOLE RECKINGER (European Union) said that the European Union attached great value to the way the report of Special Rapporteur Heyns on extrajudicial, summary or arbitrary executions clarified applicable international legal standards, including establishing the link between the responsibility of a State to protect the right to life and the importance of having domestic laws and clear guidance on how to handle situations of protest. The European Union underscored the importance of the basic principles of proportionality and necessity when handling demonstrations or riots and took note of the suggestion that some collaboration between the Special Rapporteur and the Special Rapporteurs on freedom of assembly and on human rights defenders might be useful in further assisting States in the management of demonstrations. The European Union asked the Special Rapporteur to elaborate on specific examples. The European Union commended the outstanding work that the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and his team had done in finalising the Guiding Principles for the implementation of the United Nations “Protect, Respect and Remedy” framework and said that the European Union was now focusing on the implementation of the Guiding Principles and had engaged in the current discussions to ensure that John Ruggie’s work would be effectively followed-up. The European Union had always supported efforts aimed at strengthening independence of the judiciary and therefore fully endorsed the renewal of the mandate of the Special Rapporteur on the independence of judges and lawyers. The European Union noted that there were a number of outstanding country visits, including to Iran, Sri Lanka and Burma/Myanmar and wished to know what would be the role of judges and lawyers in ensuring accountability in view of the recent report by the Secretary-General’s Panel of Experts on Sri Lanka.
PETER GOODERHAM (United Kingdom) said that the Special Representative on the issue of human rights and transnational corporations had made considerable achievements, including the development of the tripartite “Protect, Respect, Remedy” framework which provided a common understanding in the area of business and human rights and that the operationalization of this framework had produced valuable, comprehensive and specific guidance to governments and businesses on how to ensure that human rights were respected in the corporate context. The most important achievement of the Special Representative was the creation of a new consensus for taking forward the business and human rights agenda and the United Kingdom looked to a new mandate aimed at disseminating and implementing them in order to ensure that they were put to the best possible effect in improving the situation of those who were negatively affected by the activities of business. The events of the Arab Spring highlighted the importance of upholding the right to freedom of assembly and ensuring the right to peaceful protest was protected around the world. The United Kingdom shared the Special Rapporteur’s concerns about the disproportionate use of force in countries, especially where security services had unlawfully killed demonstrators, notably in Syria, Libya and Yemen. Had the Special Rapporteur received any response from the Government of Sri Lanka to his request to carry out a country visit or from any of the other countries which he had requested to visit?
ALEXEY GOLTYAEV (Russian Federation) said the Russian Federation supported the resolution on human rights and transnational corporations and expressed its appreciation for John Ruggie’s work. The Russian Federation supported the framework and noted the broad support of all stakeholders for this work. The main role of States would be to promote and implement these principles further. With regard to the Special Rapporteur on extrajudicial, arbitrary and summary executions and the Special Rapporteur on peaceful assembly and association, the Russian Federation stated that States should provide for security of their populations while also respecting the right to assembly. The Russian Federation called on Special Rapporteur Christof Heyns to work more closely with other Special Procedures mandate holders to avoid any overstepping of his mandate. In relation to the Special Rapporteur on the independence of lawyers and judges, the Russian Federation noted that there were efforts to replace domestic judicial systems with international courts and tribunals, which could lead to violations of human rights.
STASIEK MATEUSZ (Poland) said that Poland welcomed the timely manner in which the Special Rapporteur on summary executions reacted to the demonstrations in the Middle East and summarised how they were addressed in international law and regional treaties. The use of force should always be used in proportion and with guarantees that human rights were not violated. Poland encouraged the Special Rapporteur to continue his research into the use of force by the police. Poland commended John Ruggie on the outstanding work he had done in the discharge of his mandate on human rights and transnational corporations and expressed its support for the Guiding Principles. It was essential to engage a wide number of entities from all regions, and the delegation asked a number of questions concerning the “Protect, Respect and Remedy” framework and the Guiding Principles.
MAHMOUD AFIFI (Egypt) said that numerous key figures of the former regime in Egypt, including the former President, had been referred to trial in the competent courts for varying charges, including that of ordering the killing of peaceful demonstrators. A national fact finding commission was set up to assist the Prosecutor-General with relevant investigations, in addition to the independent fact-finding mission established by the National Council for Human Rights. The Government would like the Special Representative to elaborate more on his idea to set up international law standards applicable to demonstrations in all countries because it should be noted that in many countries international treaties, including provisions relevant to demonstrations, already acquired the force of law once they had been ratified by parliament. Egypt supported the mandate on human rights and transnational corporations which should be extended in the form of a working group and would continue to support the development of the normative basis upon which transnational corporations and other business enterprises could be held accountable for human rights violations. Egypt concurred with the recommendation that judges and judicial affairs staff should be trained and sensitized on gender equality and women’s human rights and highlighted that these issues were a major component in Egypt’s human rights capacity building programme.
FEDERICO A. GONZALEZ (Paraguay), speaking on behalf of the Southern Common Market (MERCOSUR), thanked the Special Rapporteur for the report on the independence of lawyers and judges. MERCOSUR expressed concern that, despite advances made, women faced certain obstacles in the administration of justice. In order to ensure that women’s perspectives were taken into consideration in the administration of justice, it was important to undertake efforts to incorporate women into the judicial system. Several international conventions covered the rights of women, but MERCOSUR had established and implemented special initiatives in that body concerning the role of women in Member States.
MERCY YVONNE AMOAH (Ghana) thanked all three mandate holders and said the Ghana was particularly grateful for the work of the Special Representative of the Secretary-General on human rights and transnational corporations for the Guiding Principles and the three pillars they rested on. At this stage, there was a need to consider an appropriate follow-up mechanism and whether to go beyond the framework to elaborate an international instrument to address human rights abuses by businesses. While the principles were themselves universally applicable, States and enterprises did not have the equal capacity to address them and Ghana hoped that any follow-up mechanism would include a strong element of capacity building. Also, the victims of human rights violations by businesses should be included in the mandate and should be assisted in obtaining remedies.
MUHAMMAD SAEED SARWAR (Pakistan), speaking on behalf of the Organization of the Islamic Conference, said that the Organization of the Islamic Conference had taken note of the recommendations made by the Special Rapporteur on extrajudicial, summary or arbitrary executions and was of the view that the proposal for elaborating the basic principle of managing demonstrations needed to be evaluated in a holistic manner and in consultation with the Special Rapporteur on freedom of assembly and association so as to avoid unnecessary duplication. The Guiding Principles were simply a starting point to sensitize States and business enterprises and could not be regarded as a comprehensive response to the human rights challenges confronted by transnational corporations. Could the Special Representative on transnational corporations and human rights elaborate on the application of these Guiding Principles, in particular how compliance would be observed in the absence of any monitoring mechanism under international human rights law?
Right of Reply
HUSSAIN AL-ZUHAIRRY, (Iraq), speaking in a right of reply, stated that with regard to the Ashraf Camp, a number of security events led to an attack against Iraqi forces. Security forces attempted to provide assistance to farmers living around the camp who had been prevented from accessing their land by Saddam Hussein. In an attempt to attract public attention, individuals threw themselves beneath trucks. Iraqi authorities had been prevented from investigating the events and thereby confirming the number of deaths. The presence of certain authorities in Iraq was illegitimate and Iraqi forces had been trained to respect human rights. The authorities of the Ashraf Camp should know that this camp was under Iraqi sovereignty and thereby the Ashraf Camp was subject to Iraqi authority. Iraq highlighted that the figures presented were not accurate. The Government of Iraq had decided to put an end to the presence of the authorities of the Ashraf Camp in full compliance with human rights.
For use of information media; not an official record
HRC11/065E