|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
25th & 26th Meetings (AM & PM)
Under Prolonged Israeli Occupation, Children’s Development ‘Deformed by Pervasive
Deprivations’ Affecting Health, Education, Security, UN Expert Tells Committee
Also Hears from Experts on Human Rights While Countering Terrorism,
Religious Freedom, Foreign Debt, Extrajudicial Executions, Internally Displaced
The prolonged Israeli occupation of the Palestinian territories had placed a tremendous burden on civilians, and had an even heavier impact on children, “whose development is deformed by pervasive deprivations affecting health, education and overall security,” a top UN Official told the Third Committee (Social, Humanitarian, Cultural) today.
Richard Falk, the Human Right’s Council’s Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, said evidence suggested a pattern of increasing abuse through specific policies that systematically violated the rights of children under international humanitarian law. Further, experts on child development agreed that children suffered more from violations than adults and “the protection of their rights should be of urgent concern to the international community”.
Mr. Falk, who was presenting his annual report, said that Israel had again this year refused to cooperate with his mandate and allow him access to the Territories. But, he noted that many children arrested for stone-throwing were subject to Israeli military law. That process, as documented by United Nations agencies, included arrests in the middle of the night, removal of the child from the parent for questioning and abundant anecdotal evidence of abusive treatment in detention.
Related to that had been an alarming increase in settler violence in 2011, he said, with 178 documented injuries to Palestinians during the first half of this year compared to 176 for all of 2010 and with almost daily accounts of vandalism against Palestinian agricultural land and villages.
A further dimension to those activities was frequent settler harassment of Palestinian children on their way to school, which had reportedly discouraged many children and their families from even attending. “Overall, the failure to prevent and punish settler violence remains a serious and on-going violation of Israel’s most fundamental obligation under international humanitarian law to protect a civilian population living under occupation,” he said.
He recommended that the Government of Israel immediately adopt the non-governmental organization B’Tselem’s guidelines to protect Palestinian children who were arrested or detained, as a minimum basis for compliance with international humanitarian law. Further, Israel also needed to develop and implement appropriate detention and imprisonment policies for all Palestinians.
The Special Rapporteur also recommended allowing entry into Gaza urgently needed materials to repair water and electricity infrastructure and an immediate lifting of the unlawful blockade of Gaza. Finally, he recommended that a request be made to the International Court of Justice for an advisory opinion on the legal status of prolonged occupation.
During the question-and-answer session following his presentation, Mr. Falk expressed support for Palestine’s recent request to be admitted as a Member State of the United Nations. In the new political atmosphere of revolutions in the Middle East, Palestinian statehood should be supported as an ingredient of self-determination that should not be tied to the resolution of final status issues.
“There is no credible reason to defer Palestinian statehood and membership in the United Nations, given these realities,” he argued, stressing that to deny the inalienable rights of the Palestinian people was just to express the failure of the international community, and the United Nations system, to act in accordance with the global rule of law.
Also today, the Committee heard from Christof Heyns, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, who called for the international community to take stock of the ramifications from the growing practice of targeted killings, particularly through use of unmanned drones. “Drone warfare, in particular, challenges the assumptions of international humanitarian law and holds the potential of doing deep structural damage to a system that has been built up over many years, and that will be a central ingredient in dealing with the potential conflicts of the future,” he said.
“The problems caused by terrorism and asymmetrical warfare are real and cannot be ignored. However, part of the concern about a State killing its opponents in other countries halfway around the world, far from any armed conflict, is the precedent it sets for all States to act in this way,” he said. “The practice of such killings should be subjected to a comprehensive overview by the international community.”
During the question-and-answer session following the Special Rapporteur’s statement, the delegate of the United States said her country fully acknowledged there was disagreement on the use of force against Al-Qaeda outside of “hot” battlefields. Nevertheless, it did not consider its authority to use force in such cases as unbounded. It was, instead, subject to the rules of international law that must be assessed on a case-by-case basis, she said.
Also during today’s session, the Committee heard from Ben Emmerson, the Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism; Heiner Bielefeldt, the Special Rapporteur on Freedom of Religion or Belief; Cephas Lumina, the Independent Expert on the effects of foreign debt on human rights; and Chaloka Beyani, the Special Rapporteur on the human rights of internally displaced persons. Each held a question-and-answer session with delegates after delivering their statements.
The Committee will reconvene at 10 a.m. on Friday, 21 October, to continue its discussion on human rights with presentations by the Chair of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Special Rapporteur on the human rights of migrants and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its discussion of the promotion and protection of human rights.
The Committee had before it a note by the Secretary-General transmitting the report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (document A/66/358). It considers developments relevant to the obligations of Israel under international law, as well as the situation of people living in the Occupied Palestinian Territory. It gives particular attention to the right of Palestinians to self-determination, the situation of Palestinian prisoners detained by Israel, unlawful Israeli settlements in the Occupied Territories, violence by Israeli settlers against Palestinians and their properties, the vulnerable situation of children in those areas and the adverse impact of the blockade of the 1.6 million residents of Gaza.
The Special Rapporteur points out that he was unable to obtain cooperation from Israel in the discharge of his mandate and he continues to believe that Israel was not fulfilling its obligations as a United Nations Member State, in that regard. He recalled that when he made an attempt to enter Israel on 14 December 2008, he was detained in a prison facility and expelled, and there was no regularized access to the West Bank, including East Jerusalem, except by way of Ben Gurion airport in Tel Aviv and Israeli-controlled crossings from Jordan. Thus, no means existed to visit those areas. As for Gaza, the changed circumstances in Egypt had created the prospect of access and a trip had been planned for 25 April to 3 May 2011, but it was ultimately cancelled in light of the prevailing security situation at that time.
Despite his inability to visit the Occupied Territories, he had proceeded with the mission to Egypt and Jordan, where he met with a wide range of people familiar with the conditions in the territories. Although the visit covered the full range of human rights issues raised by the occupation, his particular focus was on how the prolonged occupation, the blockade of Gaza and long-term refugee status encroach on the rights of children. Those concerns were given special emphasis in the current report, he states.
The report recommends the Government of Israel to immediately adopt the guidelines of Israeli human rights organization B’Tselem for the protection of Palestinian children living under occupation who are arrested or detained, as a minimum basis for compliance under international humanitarian law; to lift the unlawful blockade on Gaza, immediately allowing entry of urgent materials to repair water and electricity infrastructure to further avoid deterioration of health of the civilian population; and to implement appropriate detention and imprisonment practices for Palestinians. It also recommends the General Assembly request the International Court of Justice issue an advisory opinion on the legal status of prolonged occupation.
Also before the Committee was a note by the Secretary-General transmitting the first report by the Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism (document A/66/310). In the report, the newly appointed Rapporteur presents his interpretation and how he intends to discharge it. He identifies the rights of victims of terrorism and the prevention of terrorism through promotion and protection of human rights as two substantive areas he wishes to pursue for further development of efforts.
The Rapporteur will seek to visit countries of the “Integrated Assistance for Countering Terrorism” initiative of the Counter-Terrorism Implementation Task Force, and will continue cooperating with Governments and all pertinent actors, the report says. Lawful State anti-terrorism strategies strike a fair and proportionate balance between rights of victims of terrorism and punishment of those alleged to have committed acts of terrorism, it says. The Rapporteur vows to help supervise that balance, seeking to identify situations in which States have inflicted further harm on victims of terrorism by using their plight as a pretext for excessive executive action or justification for violation of human rights.
Also before the Committee was a note by the Secretary-General transmitting the report of the Special Rapporteur on freedom of religion or belief (document A/66/156), submitted in accordance with General Assembly resolution 65/211. The report provides an update on the Special Rapporteur’s activities and focuses on the role of the State promoting interreligious communication, which he emphasizes is essential, along with public debate, for human rights to become a reality. He stresses that freedom of religion or belief can flourish only in a climate of open public discourse. At the same time, it is important to be aware of possible adverse side effects, such as stereotypical portrayals of religious communities or false claims of inclusiveness, that may occur in interreligious dialogue projects.
In his conclusions, the Special Rapporteur encourages States to encourage interreligious communication by publicly expressing their appreciation for well-defined dialogue projects, providing financial subsidies to such projects and developing forums for regular encounters of people of different religious belief affiliations. He recommends States also become more aware of the potential for “informal” interreligious communication in settings such as multicultural neighbourhoods, schools and clubs.
The Committee also had before it the note by the Secretary-General transmitting the report of the independent expert on the effects of foreign debt and other related international financial obligations of States of the full enjoyment of all human rights, particularly economic, social and cultural rights (document A/66/271). The report, by independent expert Cephas Lumina, focuses on the adverse impact of export credit agency-supported activities on sustainable development and the realization of human rights, while also examining their contribution to debt burdens of countries where such activities are undertaken.
It says in recent years export credit agencies have assumed an increasingly important role in the global economy, particularly in the context of the global financial crisis. It warns, however, that many projects supported by export credit agencies have harmful environmental, social and human rights consequences and are not financially viable. Forced displacement of local populations, violations of the rights of indigenous peoples, and denial to basic services have been associated with projects supported by those agencies. Additionally, it says, credit agencies also tend to be secretive and often lack transparency and accountability in their funding decisions and operations.
The report calls upon States to address those negative impacts and recommends they adopt legislation and measures to ensure that the activities of export credit agencies do not undermine human rights. Additionally, it recommends that implementation of the OECD Common Approaches in environmental, social and human rights screening policies of export credit agencies become mandatory. It concludes that the international community should adopt a moratorium on repayment of current export credit agency debt for the poorest countries — much of which was incurred for economically unproductive purposes — while debtor countries should conduct transparent public audits of all export credit agency claims to determine their legitimacy. All debts found to be contrary to the odious debts doctrine ought to be unconditionally cancelled, it says.
The Committee also had before it a note by the Secretary-General transmitting the report of the Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions (document A/66/330). Submitted in accordance with General Assembly resolution 65/208 and Human Rights Council resolution 17/5, the report sets out the international standards relevant to the use of lethal force during arrest. It analyses different models of how countries deal with the issue of lethal force during arrest. A brief case study deals with the legal framework applicable to targeted killing, where arrest could reasonably have been an option. The point is made that the frameworks established by international law provide sufficient room to deal both with serious and less serious security threats. The report concludes that, among other things, use-of-force policies should be developed that provide guidance to the police on deadly, as well as less-than-lethal and non-lethal, force. Additionally, laws that allow the use of lethal force in the defence of property, along with those that give citizens the same power as the police during arrest, should be revoked.
Finally, the Committee was also presented with a note by the Secretary-General transmitting the report of the Special Rapporteur on the human rights of internally displaced persons (document A/66/285), which outlines major activities under the mandate from the period of August 2010 to July 2011, covering activities of the Special Rapporteur on the human rights of internally displaced persons, who assumed his functions in November 2010, and the activities of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin, whose mandate ended in October 2010. The report also contains a thematic section on climate change and internal displacement, presented in accordance with General Assembly resolution 62/153 and Human Rights Council resolution 14/6.
The report says population displacements are likely to be exacerbated and altered by increased droughts and slow-onset disasters, such as desertification which undermine livelihoods and food security; contraction of snow-covered areas and melting of sea ice affecting coastal areas and low-lying island States; increased weather-related natural hazards such as cyclones, hurricanes, mudslides and flooding; and conflict and social upheaval attributable to climate-related factors such as competition for scarcer resources and concentration of vulnerable populations.
The report concludes Member States should adopt a human rights-based approach to address climate-change related internal displacement, implementing the Guiding Principles on Internal Displacement through legislation, policies and institutions. It also calls for comprehensive adaptation and mitigation measures to prevent or minimize displacement, including enhanced disaster risk reduction and preparedness measures. Measures are needed to enhance knowledge of climate change-related displacement, based on consultations with affected communities and interdisciplinary efforts, while increased international support and cooperation are needed to respect, protect and fulfil the rights of affected persons, the report says.
Statement by Special Rapporteur on Situation in Palestinian Territories
RICHARD FALK, Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, said it was troubling that he again began his report by noting his inability to fulfil his duties due to non-cooperation of the Government of Israel, which continued to deny access to assess the situation. Despite that disappointment, many useful meetings were arranged in Cairo and Amman with United Nations officials, non-governmental organizations and representatives from Palestine, as well as personalities who travelled from the Occupied Territories, to discuss the human rights situation in the West Bank, East Jerusalem and Gaza. Helpful discussions were also held with the Foreign Ministers of both Egypt and Jordan, he said. A mission to Gaza was planned for next year, after this year’s visit was deferred due to the security situation.
After the deadline for submission of his report, several notable developments had taken place, he said. The Palmer Report to investigate the flotilla incident of 31 May 2010 was released and adopted by the Government of Israel. But, it was strongly criticized by the Government of Turkey, especially the claim that the blockade of Gaza was lawful, and that Israel enjoyed the right to enforce the blockade under international law. “The Palmer Report seems seriously deficient from an international humanitarian law standpoint due to its failure to assess the contention that this blockade, that also applies to Israeli crossings, had lasted for more than four years, and seems in its essence to be a form of collective punishment of the civilian population of Gaza prohibited by Article 33 of the Fourth Geneva Convention,” he said. Unfortunately, the Palmer Report provided a formal justification for the continuing denial of fundamental human rights to the people of Gaza by a process of reasoning that was not consistent with the weight of expert opinion among international law specialists.
Also after submission of the report, the President of the Palestinian Authority, Mahmoud Abbas, formally requested Palestine be admitted as a Member State of the United Nations. Statehood, even without membership, would enlarge the potential institutional options for Palestine to fulfil its rights under international law, and participate in peace negotiations on the basis of sovereign equality, he said. Also, serious concerns had also been raised recently about an Israeli plan to forcibly displace Bedouin communities in Area C of the West Bank. The traditional Bedouin way of life was under increasing threat from Israeli settlement plans, which resulted in a disturbing increase in the number of house demolitions and related efforts to displace Bedouin communities against their will. Such policies were contrary to the human rights of the Bedouin communities to maintain their way of life while living under occupation, he said.
There was also an alarming increase in settler violence in 2011, he said, with 178 documented injuries to Palestinians during the first half of this year compared to 176 for all of 2010. “These specific injuries resulted from stone throwing, assaults and shootings by Israeli settlers. Yet these incidents only tell part of the story,” he said. There were almost daily accounts of settler vandalism against Palestinian agricultural land and villages, while there was a pattern of passive support for those activities by Israeli security forces and border police who did nothing to stop settler violence. “A further dimension of these activities is frequent settler harassment of Palestinian children on their way to school, also not prevented by Israeli forces, which has reportedly discouraged many children and their families from attending school, thereby obstructing their right to education,” he said. “Overall, the failure to prevent and punish settler violence remains a serious and on-going violation of Israel’s most fundamental obligation under international humanitarian law to protect a civilian population living under occupation.”
The Special Rapporteur said prolonged occupation exerted a constraining burden on civilians, with an even heavier impact on children “whose development is deformed by pervasive deprivations affecting health, education and overall security”. Evidence suggested there was a pattern of increasing abuse through specific policies that systematically violated the rights of children under international humanitarian law. Further, experts on child development agreed that children suffered more from violations than adults and “the protection of their rights should be of urgent concern to the international community”.
In addition, many children were arrested for stone-throwing and they were subject to Israeli military law, which did not have protective provisions regarding the presence of a parent during questioning, the hours during which it could be conducted or respect for the dignity of the child. The process, as documented by United Nations agencies, included arrests in the middle of the night, removal of the child from the parent for questioning and abundant anecdotal evidence of abusive treatment in detention. It was little wonder that both Médecins Sans Frontières and UNICEF had documented a greatly increased number of children suffering from stress disorder.
In closing, he recommended the Government of Israeli immediately adopt non-governmental organization B’Tselem’s guidelines protect Palestinian children who were arrested or detained, as a minimum basis for compliance with international humanitarian law. Israel also needed to develop and implement appropriate detention and imprisonment policies for all Palestinians.
The Special Rapporteur also recommended allowing entry into Gaza urgently needed materials to repair water and electricity infrastructure and an immediate lifting of the unlawful blockade of Gaza. Finally, he recommended a request to the International Court of Justice for an advisory opinion on the legal status of prolonged occupation, as aggravated by prohibited transfers of large numbers of persons from the occupying Power and imposing a dual and discriminatory administrative and legal system in the West Bank, including Jerusalem.
The representative of the Permanent Observer Mission of Palestine thanked the Special Rapporteur for his work in bringing attention to the human rights violations committed in the Occupied Palestinian Territory, including the occupying Power’s obligations under the Fourth Geneva Convention. Noting the number of Palestinian prisoners still being held in Israeli detention centres, she underscored the countless violations of their rights, ranging from their arbitrary arrest, their detention in unsanitary conditions and their subjection to solitary confinement. She asked the Special Rapporteur to comment on the legal ramifications of prisoners being transported outside the Territory.
The representative of the European Union called on Israel and all Palestinian actors to adhere to international human rights and humanitarian law. All parties had a responsibility to prevent, investigate and remedy human rights violations. By calling attention to injustice and raising awareness about human rights, human rights defenders played a critical role. He asked the Special Rapporteur to describe the impact of events in the region on his work.
Syria’s delegate said the Special Rapporteur had informed the Committee time and time again of the difficulties he faced in discharging his mandate owing to the actions of Israel. The paradox today lay in the fact that when it was possible for the Special Rapporteur to cross into the Occupied Palestinian Territory, the United Nations cancelled his visit because of so-called security reasons. Among other things, that action showed the absence of will of the Organization to face up to its obligations regarding the promotion and protection of the human rights of Palestinians. Despite all the facts documented in the report, abominable human rights violations continued and included such actions as attacking Palestinian families and systematically starving Palestinians through a strangulating blockade. Syria fully backed the Special Rapporteur’s recommendations, although they did not meticulously cover the range of violations. Indeed, what had been mentioned, and what had not been mentioned, had been revealing.
The representative of the Maldives said that without Palestine’s formal statehood, human rights could not be realized in the Occupied Palestinian Territory. Every aspect of Palestinian life had been altered by continuing occupation, including by constant harassment. There was a need for 100 new schools in the next three years, and there was lack of safe water. Dialogue must be possible. Polarized stances did not serve the common good. When an occupying Power administered justice and controlled the population, grievances could only increase. The only way forward was the recognition of Palestine as a State, so the Palestinian people could govern their own territory in peace with Israel. His Government hoped the Security Council would vote for a free and independent Palestinian State.
Lebanon’s delegate expressed concern about the demolition of Palestinian homes, as well as the blockade of the Gaza Strip, which amounted to collective punishment of all Palestinians there, particularly children. Her Government was concerned about the increasing incidence of violence against Palestinian schools and students. She asked why, in this particular conflict, the United Nations had been incapable of acting on its values. Wasn’t the United Nations the best positioned actor to bring a peaceful and fair settlement to the conflict?
Malaysia’s representative said his Government stood in unwavering support for the inalienable rights of the Palestinians. It fully supported the membership application of Palestine in the United Nations based on a two-State solution and taking into account the security concerns of both parties. The world community had made it clear that it yearned for an early resolution to the conflict, and his Government was committed to a just and peaceful resolution of the conflict. Further, the people of Malaysia were deeply anguished by the unending cycle of violence that had become a feature of the conflict. Indeed, the continuing violation of the rights of the Palestinian people had no parallel in history. However, the situation could not be solved through violence. Finally, he underlined the right of the Palestinians to an independent State.
Egypt’s representative asked about the Special Rapporteur’s views on how to overcome the obstacles preventing him from carrying out his mandate in full. Could the Special Rapporteur share what kind of support and efforts he would be seeking from the international community and from all parties to effectively carry out his mandate?
In response, Mr. FALK thanked delegates for their statements and questions, noting that some were very difficult and complicated. Regarding the legal implications of deporting Palestinian prisoners outside the territory where they were arrested, he said the basic principle of international humanitarian law in question was that a prisoner could not be transferred from the territory that was occupied. In that case, the issue arose in two different settings. In the first, a Palestinian was arrested in the West Bank or East Jerusalem and, after conviction, was then transported to a prison in Israel. That happened frequently and had had the effect of preventing a prisoner, possibly for decades, from having contact with his or her family.
He said the second setting applied to the dispatch of released prisoners to neighbouring countries. Here, the issue was less clear because, in the most recent prisoner release, there were claims that the prisoners consented to their deportation. In addition, Israel reportedly committed itself to allowing family reunification in whatever country the prisoners were sent to. In that context, that serious issue needed clarification, he said.
He then turned to the important, but “speculative” question by the European Union regarding the impact of the wider developments of the Arab Spring on the prospects for greater realization by Palestinians of their human rights, particularly including their right to self-determination. It could be said — somewhat optimistically — that the Palestinian struggle benefited from those regional developments. Indeed, there was no doubt that the Arab citizenry was supportive of the Palestinian quest for peace. The more democratic regional Governments became, the more attentive they would be to their citizenry, suggesting they would take a greater interest in pursuing a sustainable peace.
He further suggested that the new kind of political atmosphere would focus initially on the kinds of hardships that were produced by the condition of the blockade. Similarly, there could be great support for the understanding that Palestinian statehood was an ingredient of self-determination that should not be tied to the resolution of final status issues. “There is no credible reason to defer Palestinian statehood and membership in the United Nations, given these realities,” he argued, stressing that to deny the inalienable rights of the Palestinian people was just to express the failure of the international community, and the United Nations system, to act in accordance with the global rule of law, which should treat equals equally.
The question of not taking sufficient account of the criminality of Israel’s occupation policies was, he said, a continuing issue that had accompanied the various discussions of the Goldstone Report — particularly the acceptance of the report, and the seeming inability to implement its recommendations, including referral to the International Criminal Court. Indeed, it was unfortunate that any country could have such impunity to the norms of international law.
That related, he said, to the more general question from Lebanon about the failure of the United Nations to promote the legal rights of the Palestinian people. That was a crucial question, given that a sustainable and just peace, as well as self-determination, could not be achieved unless Palestinian legal rights were upheld. It was not enough to have a bargaining situation that excluded the consideration of rights under international law, and the United Nations should use its authority to insist that any diplomatic framework must go beyond a bargaining process and must be sensitive to the legal rights, grievances and claims of the parties. Such a framework would, he stressed, create a greater balance between the two sides.
He said Egypt’s question was not just personal to his case, but should apply to all Member States, who, by becoming United Nations Members, must accept their treaty obligations. Israel had refused not only his requests for cooperation, but those of other inquiries organized by the United Nations, and that should be treated as a matter of importance. Whether that meant a clarification from the International Court of Justice, he wasn’t sure. But that kind of obstruction must be treated as a matter of high-profile concern.
Statement by Special Rapporteur on Human Rights while Countering Terrorism
Making his first presentation to the Committee, BEN EMMERSON, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, said he intended to adopt and build on the 10 areas of best practice identified by his predecessor. Moreover, he believed the core priorities of his mandate remained unchanged, with its primary focus on the need to ensure State accountability for fundamental human rights violations committed by States in measures taken to counter terrorism.
“The protection of human rights is all too often seen as incompatible with effective counter-terrorism strategies,” he said, stressing, however, that over the last decade, the international community had accepted, at least formally, “that the reverse is true, and that it is only by strict adherence to international human rights standards that counter-terrorism strategies can ultimately succeed”.
Nonetheless, State practices had not always followed their commitment, he said. “What makes this area so complex, and so difficult, is the ever-present danger that some States, including States with a proud record of respect for the rule of law, have been willing, at times, to abandon those core values on the pretext of defending them.”
In that context, he said his mandate’s central priority was to maintain a close watch on practices that undermined international standards in investigating, prosecuting and punishing those accused of terrorism and the range of executive measures taken to suppress them. He planned to show appropriate attention to the rights of direct and indirect victims of terrorism. The incorporation of State obligations towards the victims of terrorism reflected the international community’s acceptance that any sound sustainable and comprehensive anti-terrorism strategy required the recognition of the suffering of victims.
The General Assembly’s 2006 Global Anti-terrorism Strategy rightly recognized that dehumanization of victims of terrorism was one of the conditions conducive to terrorism’s spread. Yet, dehumanization could take many forms, and was not confined to indiscriminate crimes committed by terrorist groups. States, too, could dehumanize victims by reducing their plight to little more than a justification for tougher counter-terrorism measures that violated human rights. Thus, the protection of the human rights of the victims of terrorism must be seen as a genuine legal duty resting primarily on States and should not be misused as a pretext for violating the human rights of those suspected of terrorism, for taking emergency measures or for pursuing essentially political objectives.
He said he would support existing initiatives taken by States and international organizations to put the victims on the human rights agenda. In that context, he commended the creation by the Human Rights Council of a new mandate of the Special Rapporteur on the Promotion of Trust, Justice, Reparation and Guarantees on Non-recurrence, which foresaw a victim-centred approach. In addition, the Counter-Terrorism Implementation Task Force had formed a dedicated Working Group on Supporting and Highlighting Victims of Terrorism. He hoped the Assembly would follow the lead of the Human Rights Council in proclaiming 19 August as the International Day of Remembrance of, and Tribute to, the Victims of Terrorism.
The protection of victims was closely related to the issue of terrorism prevention, he said. It was now widely accepted that by promoting and protecting human rights, States could contribute to preventing terrorism, including by addressing the conditions conducive to its development. The Global Counter-Terrorism Strategy placed the promotion of human rights at the centre of the fight against terrorism, and States reaffirmed that they must ensure that any measures taken to combat terrorism complied with their obligations under international law, particularly human rights, refugee and humanitarian law.
Stressing that it was not merely a question of legitimacy, but of effective prevention, he said Security Council resolution 1963 (2010) reiterated the links between human rights violations and conditions conducive to terrorism. Moreover, it recognized for the first time that terrorism would not be defeated by military force, law enforcement measures and intelligence operations alone, and he would build on that principle in his future work.
Among other things, he said he would report on his predecessor’s follow-up mission to Tunisia in May to the Human Rights Council next year. Burkina Faso and Thailand had also extended invitations for a country visit. Egypt, too, had, during an interactive dialogue at the Council, given its assurance that the request for a second visit would be seriously and positively examined, as soon as the Government’s current transitional phase was completed. He also planned to continue follow-up communication procedures with Spain and Peru. A letter requesting updates on the implementation of recommendations from the joint global study on the practice of secret detention in the context of countering terrorism had been sent to States from the four mandates involved in that study.
He further noted that he was cooperating with relevant United Nations entities active in the field of countering terrorism, including the Security Council Committee established pursuant to resolutions 1267 (1999) and 1989 (2011) concerning the imposition of sanctions on Al-Qaeda. He added that, while he intended to focus on the rights of victims of terrorism and the prevention of terrorism, that attention would not distract in any sense from his core responsibilities to investigate and report on State’s compliance with their human rights obligations in investigating, prosecuting and punishing those alleged to have engaged in preparing, instigating or committing acts of terrorism.
Tunisia’s delegate said a number of recommendations made in the Special Rapporteur’s report were being implemented in her country, noting that since her country’s 14 January revolution, a number of changes had been made by its transitional Government.
Brazil’s delegate said his country welcomed the report and supported the mandate of the Special Rapporteur.
The European Union’s delegate asked what would be the biggest challenge for the mandate and what would the Special Rapporteur like to achieve.
Spain’s delegate commended the Special Rapporteur’s progress on areas of concern and noted it was in line with international efforts. Promotion of the rights of victims of terror was important, but Member States also needed to keep in mind the possible ramifications of compensation paid to victims.
The delegate of the United States agreed counter-terrorism efforts were strongest when they adhered to human rights and rule of law, but did not agree with some parts of the report, most explicitly paragraph 24. She asked what specific areas the Special Rapporteur would be addressing in the coming year.
Switzerland’s delegate said national systems that focused on the needs of victims were as important as human rights, but security was just as important as freedom. The delegate asked how the Special Rapporteur was planning to establish coordination with United Nations organizations and agencies, specifically the United Nations Office on Drugs and Crime.
Algeria’s delegate asked what were the specific measures taken to protect victims of terror, and did paying ransom to groups counter terror. Would the Special Rapporteur conduct a study on ransoms in his future reports?
Egypt’s delegate asked the Special Rapporteur how his future work would deal with conditions that were conducive to terrorism. It was fundamental to prevent the root causes in the first place, before they resulted in victims of terrorism.
Mexico’s delegate said the victim-based approach was important, and assured the Special Rapporteur the fullest support of his delegation.
Liechtenstein’s delegate asked to what extent the Special Rapporteur intended to look at sanctions and compatibility.
Responding, Mr. EMMERSON said his biggest challenge and expectation were the same: to further an integrated human rights approach to the topic, with recognition that acts of terror violated the most fundamental human rights of victims. By discharging their obligations to protect citizens in a manner that violated human rights principles, States helped spread terror in the first place.
On questions about what the framework recognition of victims of terror would take, he said no State could guarantee against acts of terror, but at the same time, it had a human rights obligation to promote and respect the right to life. There was an obligation to investigate, when it was plausible the State had failed to properly deploy protections, or learn lessons from failures. As an example, he spoke of the United Kingdom carrying out its legal duty to an impartial investigation, with a lengthy public inquest into allegations that one or more of the men who planted bombs on the London transport system in 2007 had been improperly traced by intelligence services. Another core component for recognition of victims of terror was the moral obligation to provide appropriate reparations to victims of terrorism, including medical and psycho-social treatment, he said.
Last, he said, it was pivotal for States to take prevention seriously in their obligations to future victims. Military intelligence and law enforcement mechanisms were not sufficient, and it was time to engage in the underlying issues that spread terror. Engaging with that very difficult area did not provide an excuse for the crimes concerned, but if States took prevention seriously, they must look at root causes, including the widespread abuse of human rights and counter-terror initiatives that failed to meet international law standards.
Future work would indeed feature efforts to delist entities on the sanctions list, he said, noting the powers of the Ombudsperson had been increased. He intended to review the working methodology of the Ombudsperson and the 18 or so cases she was investigating, identifying needs and best practices. He also took note of the proposal to make a study of the payment of ransom to terrorist groups. He concluded by saying that policymakers within States were concerned about human rights protection of victims, but the manner law enforcement mechanisms carried those concerns into effect must also meet human rights standards.
Statement by the Special Rapporteur on Freedom of Religion or Belief
HEINER BIELEFELDT, Special Rapporteur on Freedom of Religion or Belief, said intolerance based on religion or belief was still prevalent in many countries. Unfortunately, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief was far from being a reality for numerous individual and religious communities all over the world.
Apart from education, which he discussed in his report to the Human Rights Council earlier this year, interreligious dialogue could be an important tool for preventing misunderstanding and discrimination. Thus, his current report to the Assembly focused on the State’s role in fostering interreligious communication, which included various forms of exchange of information, experiences and ideas between individuals belonging to different theistic, atheistic and non-theistic belief. Such communication had an important role to play in eliminating prejudices and stereotypes, which constituted the root causes of resentment, fear, paranoia, hatred, hostility, violence and concomitant human rights abuses.
“Regular encounters between individuals and groups, if conducted on an equal footing and with a long-term perspective, foster a better mutual understanding across religious divides,” he said, while underlining the importance of appreciating the diversity of interreligious communication in terms of setting, themes, goals and operational modes. That contact could be manifested in events or long-term forums and projects. It could take place at the grass-roots or leadership level — or some combination thereof — and be formal or informal. In that context, he also noted that the Assembly proclaimed, during its last session, the first week of February as the World Interfaith Harmony Week between all religions, faiths and beliefs.
He went to stress that, to play a role in promoting interreligious communication, States had a range of options. They may encourage such communication by publicly expressing appreciation for well-defined dialogue projects or provide financial subsidies for those projects. They could also facilitate dialogue in the State framework itself or develop forums for regular encounters between people of different religions or beliefs. He suggested States become more aware of informal communication processes, including those that were not organized explicitly along denominational lines. Further, women’s substantive and substantial participation should be a priority in formal interreligious dialogue projects to address current gender imbalances.
Continuing, he said that if conducted in an inappropriate manner, interreligious communication could have serious negative side effects. That was true if a State was perceived to favour one particular religion or specific strand of faith. Moreover, the State was obligated to always respect the inherent dignity of all human beings and their freedom of religion or belief. They must, when promoting interreligious dialogue projects, refrain from monopolizing the communication or identifying themselves with a particular religion or belief. They should strive to be inclusive and should respect the principle of voluntary participation. At the same time, they should not negatively brand communities choosing not to participate in a dialogue.
Interreligious dialogue, as well as internal pluralism within religious or belief communities, should never be undervalued, he said. One telling metaphor in describing the purpose of interreligious communication was “building of bridges”, which implied the possibility of clearly locating the discussant groups on two opposite sides. It obviously presupposed a bipolar juxtaposition of “us and them”. At the same time, even dialogue projects designed to prevent a “clash of civilizations” sometimes operated implicitly on the basis of predefined religious and cultural groupings thought to be inflexible or rigid. He argued against a scenario of “us and them”, adding that a good combination of intra- and interreligious communication was advisable to avoid downplaying internal pluralism.
Finally, he encouraged States to continue and further increase promotional activities in the field of interreligious communication. Ultimately, that could also help implement the 1981 Declaration by preventing intolerance and discrimination based on religion or belief.
Moldova’s delegate said her Government was content with the Special Rapporteur’s September visit. She noted reforms to State legislation and stressed that members of different religious communities could practice their faith without State interference. Moreover, the Special Rapporteur’s fact-finding mission represented a democratic exercise for Moldova’s open and changing society.
The representative of the European Union asked the Special Rapporteur to comment on the main challenges to the involvement of religious minorities in interreligious communication. He had stated that focusing on interreligious dialogue may run the risk of overlooking internal pluralisms. Also, an underestimation of internal diversity could contribute to the maintenance of stereotypes. While the Special Rapporteur suggested that informal dialogue could minimize those adverse side effects, the Union wondered what other suggestions he could make. Given that women and indigenous peoples continued to be marginalized in interreligious dialogue, what could the Committee do to help change that?
Austria’s delegate, aligning with the European Union, said the protection of religious minorities was a prerequisite for free societies. The report emphasized the need for State neutrality in promoting interreligious dialogue. However, minorities faced obstacles in such dialogue. How could the State promote their participation, while also maintaining its required neutral role? Could the Special Rapporteur provide examples of formal State initiatives that could serve as good practices for other States?
Germany’s representative, aligning with the European Union, said his Government was using the Asia-Europe Meeting framework for interfaith dialogue. He also noted the role of new media in multi-religious and multi-ethnic societies, and underlined the promotion of freedom of religion or belief as “part and parcel” of German policy. He asked the Special Rapporteur to share examples of best practices in ensuring freedom of religion and belief. Highlighting the case of an Iranian minister now facing the death penalty and tensions surrounding Coptic Christian communities in Egypt, he asked how the Special Rapporteur assessed those situations.
The representative of the United States called attention to the Special Rapporteur’s assessment that the promotion of mutual understanding between those of different beliefs could be facilitated in many ways, including by State action. The Special Rapporteur highlighted freedom of expression in that effort, as well as the Alliance of Civilizations, among other initiatives. She asked for further observations on how international organizations and Governments could collaborate to continue those efforts. What additional measures could States take? She also requested further comments on the advantages of a shared focus on the rights of women and freedom of religion.
Canada’s delegate expressed deep concern about the violations of rights of Copts in Egypt, Baha'is in Iran, Christians, Uighurs and members of other faiths in China. She asked if the Special Rapporteur had observed special trends or best practices regarding interreligious communication.
Norway’s representative underscored the Special Rapporteur’s observation that the relationship between communication and rights was complex. Her delegation agreed with the need to eradicate stereotypes that constituted the root causes of religious resentment and hatred. That must, she said, be part and parcel of any policy aimed at preventing violence and human rights abuses.
The representative of Liechtenstein asked if the Special Rapporteur thought the Committee should combine today’s discussion with its discussions on violence.
Egypt’s delegate said interreligious dialogue was essential for achieving harmony around the world and further exploration was needed in that regard. Further, the issue was not limited to civil society, and State involvement should be encouraged. His delegation valued the comments made in the Special Rapporteur’s report, which had been reflected in Egypt’s State policy for the last few months, including in the National Council for Dialogue, which included the participation of Coptic Christians and Muslim minorities. That Council had called for the finalization of a unified code for building places of worship and its adoption was expected in the next few weeks.
His delegation asked the Special Rapporteur to offer reflections on legislative measure to eliminate incitement to hatred and violence against religious groups, particularly migrant groups. Further, it was important to look into the different aspects of societal dynamics regarding the interaction of different groups. Noting calls to alleviate the recent tensions in Egypt, as well as the level of discrimination against minorities, he welcomed the comments of the Special Rapporteur on the matter.
Pakistan’s delegate said his country had been closely associated with the Alliance of Civilizations. A new Ministry of National Harmony had been established at the federal level to promote the rights of minorities in the larger context of promoting interfaith dialogue. That effort had been extended to the district levels through the establishment of interfaith harmony committees. Pakistan had played a role in the adoption by the Human Rights Council of resolution 16/18, which some said amounted to a new approach. Could the Special Rapporteur share his views on that resolution’s further implementation? He also stressed that there was no systematic problem of human rights violations against minorities in Pakistan. All citizens were free to practice their religion, as fully guaranteed by the Constitution.
Stressing that no country was perfect in its human rights record, China’s representative said Canada should focus on its own problems regarding religious practice, so that it could guarantee freedom of religion of its people and promote dialogue among all religions. Canada was not qualified to point fingers regarding the freedom of religion in other countries. China had always maintained that human rights problems could be resolved through dialogue based on mutual respect. It was against naming and shaming.
Iraq’s delegate said there was an organic relationship between religious intolerance and terrorism. Indeed, violence and hatred on account of faith represented one of the main reasons for terrorism, and led principally to terrorist acts. Iraq had undertaken many practical measures to protect Christians and other minorities. Moreover, terrorist acts did not distinguish between Muslims and non-Muslims. He asked the Special Rapporteur what legal procedures existed by which States could act against those inciting religious intolerance. Was there any intention to criminalize religious intolerance and States that sponsored religious intolerance?
Iran’s representative stressed that the politicization of the status of minorities in any country would not lead to the enhancement of any human rights situation. Iran had pronounced clearly, time and again, that the arrest of people inside Iran had resulted from their illegal activities and was made on the basis of legal proceedings.
Responding, Mr. BIELEFELDT said the manifestation of hatred was the most shocking aspect of his everyday work. That hatred came from the paradoxical combination of fear and contempt, which merged out of feelings of inferiority, as well as moral superiority, he said. He also noted that freedom of religion or belief included the freedom to change one’s religious belief.
His first recommendation was to promote interreligious communication. At the same time, he said, there needed to be more qualified communication. Dialogue between the Christian mainstream churches and Mormons was something that rarely occurred, and the same was true between Muslims and Baha’is. Formal and informal dialogues were important, he added. Highlighting a number of positive examples of interreligious dialogue, he said Moldova’s Government had hosted a very positive law reform project between religious interlocutors, but it was clear the culture and experience of interreligious communication needed to be developed. Paraguay had also developed an interreligious forum of people to advise the Government on such issues as setting up a fair school curriculum. In a visit to Egypt, he also saw positive examples of informal cooperation between Christians and Muslims in neighbourhood projects, such as training young people to enhance opportunities. The East-West Orchestra of Palestine and Israel was another good example, he said.
Addressing questions on the participation of women in religious dialogue, he said women did participate, but in less visible, grass-roots projects. Women were missing in formal, visible and high-level segments, he said. States should give a complete picture of women’s participation through initiatives, such as feminist readings of Holy Scriptures, thus making a visible place for the emerging participation of women. Neutrality was also important and indispensable for States to be inclusive; a positive understanding of State secularism would be something close to neutrality, and opening up public institutions in the service of everyone. On the subject of terrorism, he also said it was important to overcome political paranoia to meet one another. In order to counter hate speech, there needed to be more speech — restrictions on freedom of expression were the last resort, he said. But, hate speech also needed to be responded to, in order to unmask many of the stereotypes underneath the resentment and hatred.
Statement of Independent Expert on Effects of Foreign Debt
CEPHAS LUMINA, Independent Expert on the Effects of Foreign Debt and Other Related International Financial Obligations of States on the Full Enjoyment of All Human Rights, Particularly Economic, Social and Cultural Rights, said export credit and investment agencies — commonly known as export credit agencies — were the major source of public financing for foreign corporate involvement, particularly in large-scale industrial and infrastructure projects in developing countries and emerging economies.
In recent years, export credit agencies had assumed an increasingly significant role in the global economy. The Group of 20 and member countries of the Organization for Economic Cooperation and Development (OECD) pledged, in 2009, to provide extra support –- at least $250 billion over 2 years for the G-20 -- for export credits to help increase international trade flows. At the same time, many projects supported by export credit agencies had severe environmental, social and human rights impacts and contributed, in some cases, to unsustainable sovereign debt burdens. Indeed, export credit agency-related debt constituted the largest component of developing country debt.
Export credit agencies contributed directly to sovereign debt burdens when they lent to Governments or public entities, or when they guaranteed or insured commercial credits made available to them and the entities involved defaulted, he said. They could also indirectly generate sovereign debt through sovereign counter guarantees, which sought to reduce the risks of transactions between a private investor and a foreign private recipient. In the case of default, the transaction’s financial or political risk would be transferred from the private investor to the taxpayers of the country of the private recipient. Sovereign debt might also increase when export credit agency-related projects involved Government in large contingent liabilities even where they did not borrow or guarantee a loan, such as cases in which a Government had to sign a power purchase agreement guaranteeing the purchase of power at high dollar-denominated prices.
He said that, while export credit agency backing reduced pressures on investors to exercise due diligence in assessing default risks, export credit-related debt was often not included in negotiations on debt relief or cancellation. Ultimately, the cancellation was often funded by official aid budgets, even though transactions related to export credit debt typically supported environmentally and socially harmful projects, not development. He shared the concerns of many civil society organizations that some of the debt arising from those transactions might be odious or illegitimate, and he called on debtor countries to conduct transparent public audits of all such debt. Serious consideration should also be given to adopting a moratorium on the repayment of current export credit agency debt on the poorest countries, which would constitute a critical part of efforts to address the sovereign debt crisis.
Noting that numerous reports had documented the harmful impact of projects financed by export credit and outlining some of them, he highlighted further concerns over a lack of transparency and accountability. Most export credit agencies were not obliged to disclose information about the potential adverse impact of the projects they supported. Yet, in providing loans and guarantees for extractive industry projects, those agencies risked creating environmental degradation, pollution, deforestation, and, ultimately, global climate change. Often, environmental, social and human rights considerations were not incorporated in funding decisions. Those projects had also been implicated in corruption cases. The home States of those credit facilities were obligated to regulate their activities and should ensure that the projects being funded caused no human rights violations. In addition, the export credit agencies themselves bore a responsibility to respect human rights.
In that context, he cited resolution 8/7 of the Human Rights Council on transnational corporations, among other relevant international texts. Similarly, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises had stressed that corporations had a basic responsibility to respect human rights. It was also regrettable that, as public finance bodies supporting projects in developing countries, most export credit agencies had no development mandate.
“The current international regulatory framework for export credit agency activities is inadequate,” he said, noting that it consisted of non-binding principles and recommendations. The OECD Working Party on Export Credits and Credit Guarantees had adopted recommendations for common approaches that included reviewing projects for their potential environmental impact and their compliance with international standards. However, those common approaches had a number of drawbacks, including their non-binding nature and the absence of any mention of human rights.
It was his view that the common approaches should clearly acknowledge human rights as an important element in the social sustainability of enterprises and markets and explicitly recognize the role of the export credit agencies in promoting corporate responsibility to respect human rights. He also supported the view that projects supported by export credit agencies should be assessed against international human rights standards. Further, a more robust international regulatory framework that enhanced, rather than undermined, the ability of States to fulfil their human right obligations was needed.
Cuba’s delegate thanked the Independent Expert for fulfilling his mandate, saying his report contained very valuable recommendations that should be assumed by States. She encouraged him to pursue his work on the draft general guidelines on foreign debt and human rights, and would like to see follow-up on progress achieved during the next session of the General Assembly.
Responding, Mr. LUMINA thanked Cuba’s delegate for her comments. The draft general guidelines on foreign debt and human rights were progressing well, he said. Next month there would be the final experts meeting to look at the draft prepared by the mandate, and then there would be the intergovernmental consultations next year. He hoped the draft general guidelines would then meet approval, before their submission to the Human Rights Council.
Statement by Special Rapporteur on Extrajudicial Executions
CRISTOF HEYNS, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, said law enforcement officials around the world continued to use excessive force, often leading to unlawful loss of life. He had reviewed relevant legislation of 101 countries, which would be posted on the mandate’s website, and invited Member States to assist by verifying if it was up to date. “I believe that such a resource base is critical for law reform and comparative assessments and that it will aid the development of best practices by enabling decision makers in different countries to measure their laws against those of other countries, in addition to gauging it against international standards,” he said.
Since the topic of the use of force was broad, the Special Rapporteur said he limited research to use of force in situations where a criminal suspect resisted police arrest or tried to flee. The question at issue was whether law enforcement officials had special powers to use lethal force in such a scenario, he said. International law imposed stringent safeguards on the use of force for arrest to protect rights of individuals, but also to maintain social order. “We have learned from recent events that indiscriminate or disproportionate use of force by law enforcement officials — even against someone with as low a profile as a vegetable vendor on the streets of Tunisia — can lead to widespread demonstrations and riots,” he said.
Practical and implementable legal provisions needed to be comprehensible to law enforcement officials responsible for applying them, he said. The report was largely conceptual, but he hoped it would provide a framework for such legal provisions. The “guiding star” should be the “protection-of-life principle”, which maintained that under closely defined circumstances, life might be taken as a last resort in order to protect another life or lives. By international standards, lethal force during arrest may be used by the police, in addition to the ordinary power of private defence that everyone had, only where the suspect had committed or threatened a crime involving serious violence; posed immediate threat; if such action was proportional--aimed at protecting life--and was necessary; and no less harmful means to achieve the objective were available.
An overview of domestic legislation indicated that in many jurisdictions, the determining consideration regarding use of force by the police had been the seriousness of the crime committed by the suspect. “In other words, the approach is to look backwards. However, there has been progress. Domestic provisions increasingly also focus on objective indicators of the danger posed by suspects, which adds a forward-looking element that fits in better with the protection-of‑life principle mentioned earlier,” he said. But many domestic legal systems imposed the general requirement of “reasonableness” on the part of the police, which could be understood to impose a less exacting standard.
Approaches by States could be categorized into five different models: first, that lethal force might be used where a fleeing suspect had committed a felony or any other crime listed; second, that the suspect had committed a violent crime; third, that the suspect had committed a violent crime or posed a danger to society; fourth, that the suspect posed a danger to society, and whether a violent act had been committed or not was irrelevant; and fifth, that the suspect had committed a violent crime and posed a danger to society — the model that gave the strongest embodiment to the protection-of-life principle.
Targeted killing, in the form of drone attacks or raids, obviously raised serious right-to-life issues, he said. Of particular concern was the situation where a target in a foreign country was identified in advance and a decision was taken to kill the specific person; the decision was then left to the military or intelligence services to implement at an opportune moment, with no chance for the target to surrender and be arrested or taken prisoner. “There has been a dramatic increase in the number of such targeted killings in the recent past, also in countries that are far away from established armed conflicts, and in some cases the targets are nationals of the targeting State,” he said.
Where it was done outside armed conflict, it flew in the face of the human rights framework, and where it happened in a non-international armed conflict, international human rights, as well as humanitarian law apply, which required such requests as military necessity and direct participation in hostilities before someone might be targeted. That also made some forms of targeted killing highly problematic since, without an imminent attack, the right to self-defence did not come into play. “The problems caused by terrorism and asymmetrical warfare are real and cannot be ignored. However, part of the concern about a State killing its opponents in other countries halfway around the world, far from any armed conflict, is the precedent it set for all States to act in this way.”
“Drone warfare, in particular, challenges the assumptions of international humanitarian law and holds the potential of doing deep structural damage to a system that has been built up over many years, and that will be a central ingredient in dealing with the potential conflicts of the future,” he said. The term “targeted killing” might be accurate in the sense that collateral damage in each individual killing could be limited through technology, but the ready availability of drone technology and the safety it offered to operators spread the range of potential targets across the globe, allowing States to eliminate their opponents wherever they were.
“After the First World War the international community had to take stock and decide how to deal with the advent of airplanes as tools of war that could carry bombs deep into enemy territory and drop them on unsuspecting towns and villages,” he said. “It seems that the time has come for the international community to engage in a similar stock-taking exercise in respect of drones.” he said. States that wished to stretch established rules of international law beyond their established meaning should bear a heavy burden for justification. “The more continuous and systematic a practice of questionable targeted killing becomes, the more questions will be raised and the greater the implications for right to life will become,” he said.
Highlighting some of his reports recommendations, he said law reform should be undertaken to bring domestic laws on arrest into conformity with international standards. States should also revoke laws that allowed use of lethal force in defence of property, as well as those that gave citizens the same powers as police during arrest. He further recommended that Governments ensure police agencies focus on developing tools and strategies for minimizing the need for use of lethal force during arrest. Lastly, he recommended targeted killing should not be undertaken in ways that undermined human rights or humanitarian law. “The practice of such killings should be subjected to a comprehensive overview by the international community,” he said.
The United States delegate said her Government had consistently and unequivocally condemned extrajudicial, summary or arbitrary executions against all persons, regardless of their status. All States should take measures to combat extrajudicial killings and punish the perpetrators. Her Government would carefully review the principles and recommendations set out by the Special Rapporteur in his report on the use of lethal force during law enforcement operations.
While the United States appreciated the report’s focus on domestic police power and its acknowledgement of the fundamental distinctions between the two bodies of international law that might apply to a Government’s use of force — international human rights law and international humanitarian law — it was concerned that the Special Rapporteur had chosen to comment on operations during armed conflict in a manner that obscured that clear distinction and introduced confusion about applicable rules.
In particular, she said the United States had a number of concerns on the “case study” on the operation against Osama bin Laden. It strongly rejected any suggestion that his killing could be considered unlawful. The United States Attorney General had explained the rationale for why Osama bin Laden was considered a legitimate target in the country’s conflict with Al-Qaeda and why he was targeted in an act of national self-defence. The manner in which the operation was conducted comported with the war of law principles of distinction and proportionality.
The United States delegate strongly disagreed with any suggestion that the operation ruled out the acceptance of surrender, she said, stressing that United States forces were prepared to capture bin Laden if he surrendered. The laws of war required acceptance of a genuine surrender that was clearly communicated and received by the opposing force under circumstances where it was feasible to accept the offer. Osama bin Laden did not make such an attempt to surrender and United States forces were authorized to use force against him.
She said the United States fully acknowledged that there was disagreement on the use of force against Al-Qaeda outside of “hot” battlefields. Nevertheless, it did not consider its authority to use force in such cases as unbounded. It was, instead, subject to the rules of international law that must be assessed on a case-by-case basis. Indeed, international legal principles, including respect for a State’s sovereignty and the laws of war, imposed constraints on the ability to act unilaterally and the use of force in foreign territories. The United States was committed to ensuring that the use of force comported with applicable law, including obligations under international law.
Brazil’s representative noted one of his country’s programmes to build capacity and train police officers in the use of non-lethal force to combat and prevent crimes.
The representative of the European Union asked if there was a set of drivers behind the use of force by the police, such as immunity or pressure from politicians. Also, could the Special Rapporteur elaborate further on measures to neutralize those drivers? Could he explain further how accountability could be enforced? Could he elaborate on how technology could be used in that context?
Liechtenstein’s delegate, underlining the links between accountability and prevention, asked how accountability could be ensured when States were unwilling or unable to do so, and when they were not party to accountability mechanisms like the International Criminal Court, as was the case with Syria and Sri Lanka.
Responding, Mr. HEYNS stressed that the applicable framework in law enforcement operations was international human rights law. In warfare, however, it was a combination of international human rights and humanitarian law. He also noted that, while some rights could be derogated from, other rights remained in force. Moreover, that complementarity between human rights and humanitarian law should be recognized.
He said that if one accepted that international humanitarian law applied in armed conflict, those rules must apply. Recalling the jurisprudence now coming out on those matters, he particularly highlighted the often-quoted Israeli opinion from 2006 saying that if less-than-lethal force could be used, it must be taken into consideration. He also noted the relevant interpretation of the Red Cross that, depending on the particular circumstances, one should look at whether the use of lethal force was required.
He went on to stress that it was one thing to think about a battlefield situation versus an isolated case where an individual had been under surveillance for a number of years. But, the discussion should not be limited to one situation only. Indeed, looking at what happened with Qaddafi today — and he acknowledged there was no clarity yet on the facts — he said that if there had been a shoot-out and Qaddafi was wounded, that fell under international humanitarian law. If, however, Qaddafi was taken as a prisoner of war and was subsequently executed, that was summary execution - and illegal.
Part of the difficulty in working out the applicable standards was that one did not always have the facts, he said. Allegations in the press put the number of those killed by drones in the hundreds. Further, in the broader context, it could not be said that the law was settled. It was also true that some of the tenets of human rights and humanitarian law were challenged by situations of asymmetric warfare. A framework was needed, however.
In that case, he noted the United States statement that forces were prepared to accept surrender. Nonetheless, his concern had been that mixed messages came out at the time. That was dangerous. Pointing to the reference to sovereignty, he underlined the significance of that principle when dealing with such high-powered technology.
Turning to the question on the drivers of the use of excessive force, he said impunity was critical. The presence of a system of accountability affected the way police officers considered the use of force. Elite police units with operational independence should be avoided. Police codes of silence were also problematic. The same kind of culture could also exist between prosecutors and police. In addition, research showed that dangerous public rhetoric, such as a “war” on crime, terror or drugs, suggested that shortcuts could be taken.
He further emphasized that, if there was no accountability for the loss of life, that was violation of the right to life, per all jurisprudence. If a State did not investigate or punish the taking of a life, it was complicit in that crime. Further, accountability must be visible to the pubic to work.
He noted that, with the use of different technologies, such as closed-circuit televisions, cell phones or other recording devices during arrests, one could in the end say what really happened in certain cases. The use of those devices could also prevent abuse and aid in prosecution. If police knew they might be recorded, they might not use excessive force.
He said that, in cases where States were unwilling or unable to cooperate, there were a range of avenues to take. In some cases, as in Libya and Sudan, referral to the International Criminal Court was one option, although it was rarely used. In addition, if the local investigation was inadequate or non-existent, the international community was obliged to conduct investigations, such as his investigation in Sri Lanka.
Syria’s delegate said her Government was against all forms of extrajudicial and summary executions. Its national law organized such matters and fully prohibited those actions. She urged her colleague from Liechtenstein to refrain from mentioning her country in his comments. If he did so again, her delegation would be forced to exercise its formal right of reply.
Statement by Special Rapporteur on Internally Displaced Persons
CHALOKA BEYANI, Special Rapporteur on Internally Displaced Persons, said one of the thematic areas he had been concentrating on had been promoting the ratification and implementation of the 2009 African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa, also known as the Kampala Convention, which was the first legally binding regional instrument of its kind. To that end, he had attended a number of key events raising awareness of the Kampala Convention and was pleased to note it had already received 14 out of the 15 ratifications it required for legal effect. He also planned to focus his work on three other themes: a more effective response to the situation of internally displaced persons outside camp settings; women and internal displacement; and finally, climate change and internal displacement, which was the theme of his current report.
Preventing and addressing internal displacement would be a key adaptation challenge to the effects of climate change, he said. Large-scale climate-related displacement was worrying for a number of reasons; the socio-economic impact of climate change was expected to have significant consequences for the enjoyment of human rights and human security, affecting groups like internally displaced persons who were especially at risk. Slow-onset disasters and the secondary effects of climate change, such as increased competition over scarcer resources, loss of livelihoods and increased security concerns were also expected to increase internal displacement. When combined with such pressures as population growth, increased human mobility, urbanisation, and food and water insecurity, climate change would act as a trigger, as well as an accelerator to intensify displacement.
Urban migration was also expected to increase from internal displacement due to climate change, and with few resources, they were expected to live in urban slums, vulnerable to further disasters. “It is critical that [internally displaced persons] be provided better options than this, through timely and durable solutions so that climate-induced displacement does not also add to the social pressures and precarious human conditions associated with rapid and unplanned urban migration,” he said. Strategies must apply a human-rights-based approach to address internal displacement, due to both sudden and slow-onset disasters, and there were already important tools for that, such as the Guiding Principles on Internal Displacement and the Operational Guidelines on Displacement in Natural Disasters.
The Special Rapporteur then shared key findings from his two official country visits, to Maldives and to Kenya. In Maldives, he found the effects of climate change were already impacting the right to housing, safe water and livelihoods. He commended the Maldives authorities for domestic efforts in bringing international attention to climate change, but urged its Government, with international support, to take further necessary steps to prepare for internal displacement, as a key component for addressing climate change. On his visit to Kenya, he found there was an urgent humanitarian need to address dire living conditions and human rights of internally displaced persons, including those from post-election violence, as well as persons displaced due to natural disasters and environmental conservation projects. The Government must be commended for having taken important steps, including the development of a draft internally displaced persons policy, a Ministry of State for Special Programmes and a Parliamentary Select Committee on the issue. Yet, key challenges remained. A comprehensive strategy on internal displacement was essential to Kenya. Lack of accurate and efficient systems of registration was a key concern and a broader, more consultative approach to durable solutions was also necessary. Internally displaced persons should be able to make a voluntary and informed choice between local integration, return and resettlement.
The representative of Maldives said the issues of displacement owing to climate change were a central concern for his Government. The 2004 tsunami had made the Government realize how unprepared it was for such disasters. He welcomed the recognition of the fact that internally displaced persons often resulted from international forces. As a small nation, Maldives had access to limited resources. It may need to turn to the international community to support its citizens in the future. It, therefore, supported the call for a human rights framework laid out in the Special Rapporteur’s report.
The representative of the European Union asked about the remaining gaps in coordinating provisions for internally displaced persons by the United Nations and other international organizations. To what extent did States take the Guiding Principles into account in strategies to address internal displacement? Noting that insufficient attention had been paid to the situation of displaced girls and women, he asked how the issue could be followed up on.
Georgia’s delegate said the right of return of internally displaced persons remained at the centre of her Government’s policies. Despite numerous Security Council resolutions backing the right of return, as well as several resolutions passed by the Assembly, citizens were still not allowed to return to the regions of Abkhazia and Tskhinvali. She invited the Special Rapporteur to visit Georgia.
Liechtenstein’s representative agreed that comprehensive strategies were needed to adapt to the complex challenges of climate change. How, he wondered, could a human rights approach be better implemented?
Responding, Mr. BEYANI said it was fairly well known that since the 2005 World Summit, a number of States had used the Guiding Principles not just as a policy framework, but as the basis for drafting actual legislation. Those included Uganda, Angola, Colombia and Iraq. Kosovo and Georgia were working on that as well.
The issue on internally displaced persons outside camps had first been raised two years ago. Then, the approach had been to identify a lead agency on the issue. However, most agencies thought that, given their other responsibilities, they could not move forward. To kick-start the process, he aimed to issue a thematic report on the issue, drawing in part on work that had been done in Colombia and Kenya. He hoped the report would crystallize the issue and generate momentum for action in the agencies.
On the follow-up for internally displaced women, he said the first step was coordinating with various groups, starting with the Committee on the Elimination of Discrimination against Women. He was working to set out priorities. Work with UN Women was also planned. He also took the time to speak with internally displaced women wherever he went. Outlining the process more specifically, he said a small expert group was needed to prepare the agenda and the issues. A report would then be prepared. It would in turn be mainstreamed in the United Nations system, including the treaty bodies. Direct work with Governments was then planned.
He said most of what was now recognized as climate-change-induced displacement had typically been characterized either as slow-onset or sudden-onset disasters, but it was now clear that those events were caused by climate change. In that context, responses could be seen as adaptation measures. That revealed a distinction in terms of the appropriate response. In the context of climate change, the adaptation was required. In natural disasters, the important element was emergency response and early recovery.
That also applied to the human rights approach to climate change, he said. The discourse on climate change in the scientific sector had emerged separately from the humanitarian discourse, but a shared understanding was needed. Moreover, prevention was linked to foreseeability of the likelihood of the impact of climate change. Human rights jurisprudence was, therefore, focused on State responsibility to prepare, mitigate and, in some cases, relocate vulnerable populations.
Norway’s delegate said the Special Rapporteur’s report clearly showed the magnitude and importance of the issues at hand. Although figures on the number of internally displaced persons would vary, it was clear that climate change would interact with social and political factors. Also, its impact would be decided by the ability to adapt and mitigate. Disasters were sudden and environmental degradation was slow. That meant, among other things, that protection responses must vary. However, he wondered where the line should be drawn and what the implications were for the Special Rapporteur’s mandate?
Austria’s representative asked the Special Rapporteur to provide further examples of best practices, particularly on how States used the Guiding Principles. She also wondered how the framework for durable solutions could be helpful.
The representative of Switzerland commended the Special Rapporteur’s activities. Stressing that the Kampala Convention could play a major role in regional work, he asked how the international community could help the ratification process to allow the Convention to come into force.
Sudan’s delegate said his country had a strict regime consistent with all recognized international standards.
Serbia’s delegate said her country continued to be faced with issues related to the many internally displaced persons who were forced to leave the Province of Kosovo in 1999. Only a small portion of them had been able to return to their homes. She asked the Special Rapporteur to comment on that matter.
Responding, Mr. BEYANI said he was aware of the situation of protracted displacement with respect to Georgia and also thanked the Georgian delegation for its invitation to visit.
He said the Guiding Principles must be related to concrete tools at the national level and more States needed to take action in that regard. Indeed, no one knew where those slow- and sudden-onset events would take place next. Institutional framework should be strengthened to deal with internally displaced persons, including at the country level.
He associated fully with the remarks made by Norway regarding climate-induced displacement. It was clear that there would be, in some instances, internal and cross-border movements, such as in the Horn of Africa. Where cross-border movements occurred, his mandate was not involved. H is mandate was limited to internally displaced persons who did not cross borders.
He further suggested that some conventional thinking might need to be altered regarding slow-onset environmental degradation, since the kind of population movements had often been considered to be normal migration. It was helpful to look at the definition of internally displaced persons — namely, as persons compelled or obliged to leave. The concept of “compelled to leave” was related to sudden-onset movements, while “obliged to leave” drew on slow-onset movement.
Continuing, he said the Guiding Principles related to all phases of displacement. Adaptation challenged required a closer look at the applicability of durable solutions from the start of the movement itself. Pointing to the events in the Horn of Africa, he further underlined the issue of durable solutions.
He noted the standing invitation to visit Sudan, adding that it was a question of finding appropriate dates. Côte d’Ivoire had a similar invitation, he said. Meanwhile, he looked forward to positive responses from Pakistan and the Philippines. He said it was useful to note the steps taken by the African Union to urge its member States to ratify the Kampala Convention. There was also a Group of Friends on the Convention.
He said he had looked at the problem in Serbia not only with regard to Kosovo, but to some 800,000 individuals displaced from Bosnia and Herzegovina, and Serbia. He was planning a mission to Kosovo soon. Nevertheless, the unresolved status of Kosovo posed tremendous problems on the right of individuals to return. He had had discussions with the European Commissioner for Human Rights on how to engage the European organs on those issues.
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