COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION ADOPTS GENERAL RECOMMENDATION ON PREVENTION OF RACIAL DISCRIMINATION IN CRIMINAL JUSTICE SYSTEM

The Committee on the Elimination of Racial Discrimination this morning adopted by consensus a General Recommendation on the prevention of racial discrimination in the administration and functioning of the criminal justice system.

The General Recommendation outlines steps to be taken by States parties in order to better gauge the existence and extent of racial discrimination in the administration and functioning of the criminal justice system, including the search for indicators attesting to such discrimination; strategies to be developed to prevent racial discrimination in the administration and functioning of the criminal justice system; and steps to be taken to prevent racial discrimination with regard to victims of racism and to accused persons who are subject to judicial proceedings.

The Committee also held a general debate on multiculturalism. Introducing the topic, Committee Expert Jose A. Lindgren Alves said there was agreement everywhere about the need to have respect for different cultures and for them to be accepted and not just tolerated. The Convention recommended the creation of multi-racial organizations that would foster integration; thus the main aim of the Convention was to integrate societies, and not to divide them. Passion for one’s individual culture was becoming so violent in all possible respects and in all cultures that the situation was rapidly degenerating.

During the debate, it was suggested that Mr. Lindgren Alves formulate a draft General Recommendation on multiculturalism whilst keeping in mind the points raised by several Experts, including that it should take multiculturalism into account in the future when formulating recommendations. Mr. Lindgren Alves proposed that the Committee adopt a political approach, knowing that the recommendations that it made could have a contrary effect than that from which was intended, as international fora, including the Committee itself, were too influenced by the vision of multiculturalism of the United States and Great Britain.

The next public meeting of the Committee will be held at 10 a.m. on Thursday, 18 August when it will hold a discussion on treaty body reform with Maria-Francisca Ize-Charrin, Chief of the Treaties and Commission Branch of the Office of the High Commissioner for Human Rights.

General Recommendation on Prevention of Discrimination in the Criminal Justice System

The General Recommendation on the prevention of racial discrimination in the administration and functioning of the criminal justice system, in the context of recommendations addressed to States parties, outlines steps to be taken in order to better gauge the existence and extent of racial discrimination in the administration and functioning of the criminal justice system, including the search for indicators attesting to such discrimination. On factual indicators, the Committee says States parties should pay the greatest attention to possible indicators of racial discrimination, including the number and percentage of persons who are victims of aggression or other offences, especially when they are committed by police officers or other State officials; the absence or small number of complaints, prosecutions and convictions relating to acts of racial discrimination in the country; and the handing down by the courts of harsher or inappropriate sentences against persons belonging to those groups. In the context of legislative indicators, the Committee notes what should be regarded as indicators of potential causes of racial discrimination, including any gaps in domestic legislation on racial discrimination, and the potential indirect discriminatory effects of certain domestic legislation.

Regarding strategies to be developed to prevent racial discrimination in the administration and functioning of the criminal justice system, States parties should pursue national strategies whose objectives include eliminating laws that had an impact in terms of racial discrimination; to foster dialogue and cooperation between the police and judicial authorities and the representatives of the various groups; to ensure proper respect for and recognition of the traditional system of justice of indigenous peoples; and to implement national strategies or plans of action aimed at the structural elimination of racial discrimination. In the context of steps to be taken to prevent racial discrimination with regard to victims of racism, including access to the law and to justice, States parties should promote, in the areas where victims of racism lived, institutions such as free legal help and advice centres, legal information centres and centres for conciliation and mediation, among other things. On the subject of reporting of incidents to the competent authorities for receiving complaints, States parties should, among other things, take the necessary steps to ensure that the police services have an adequate and accessible presence in the appropriate places so that complaints could be duly received. The competent services should be instructed to receive the victims of acts of racism in police stations in a satisfactory manner so that complaints are recorded immediately. It should be the right and duty of any police official or State employee to refuse to obey orders or instructions that required him or her to commit violations of human rights.

Regarding steps to be taken to prevent racial discrimination in regard to accused persons who are subject to judicial proceedings, the General Recommendation states that States parties should, among other things, take the necessary steps to prevent questioning, arrests and searches which are in reality based solely on the physical appearance of a person, that person’s colour or features or membership of a racial or ethnic group, or any profiling which exposes him or her to greater suspicion; prevent and most severely punish violence, acts of torture, cruel, inhuman or degrading treatment and all violations of human rights which are committed by State officials; should guarantee all arrested persons, whatever the racial, national or ethnic groups to which they belong, enjoyment of the fundamental rights of the defence enshrined in the relevant human rights instruments; and bear in mind the special precautions to be taken when dealing with women or minors. Bearing in mind figures which show that persons held awaiting trial include an excessively high number of non-nationals and persons belonging to vulnerable groups, States parties should ensure, among other things, that the mere fact of belonging to a racial or ethnic group or a vulnerable group was not a sufficient reason to place a person in pre-trial detention. With regards to the trial and court judgement, States parties should ensure that persons enjoy all the guarantees of a fair trial and equality before the law, specifically, among other things, the right to the presumption of innocence; the right to the assistance of counsel and the right to an interpreter; the right to an independent and impartial tribunal; and guarantee of fair punishment. Execution of sentences should also comply with United Nations norms in this field, and States parties should, among other things, guarantee to all prisoners whose rights had been violated the right to an effective remedy before an independent and impartial authority.

Discussion on Multiculturalism

JOSE A. LINDGREN ALVES, Committee Expert, presenting the topic of multiculturalism, said the only ideology that the Committee could now say was consensual was that of multiculturalism. With very few exceptions of radical thinkers of the left and right, everybody was in favour of multiculturalism. Basically, in very simple terms, the idea was that since the world was globalised in economic terms, it also should be globalised in terms of culture. By globalisation in terms of culture, of course it should be borne in mind that nobody wanted a form of Americanisation of culture - the idea was that all cultures were equally respected and accepted in every society. This was the essence of the consensual definition of multiculturalism.

There was agreement everywhere about the need to have respect for different cultures and for them to be accepted and not just tolerated. The idea was that the different should be accepted, as it was also created among people who had different values, which should be respected. But there were different ways of dealing with this; in a simplified way, there was the French or Republican tradition according to which the idea of respecting the differences of the others living amongst ourselves should be accepted, but these differences should never be put above the Constitution, and to a certain extent what mattered was the commonality which was the respect for the Constitution and the feeling of being one of a specific nation; the Anglo-Saxon tradition was that the differences were so fundamental for the identification of the individual that they could not and should not be changed, and should remain intact, with people living side-by-side in the same society with totally different cultures that were not supposed to be mixed up. These were the two main poles of multiculturalism.

The Committee was supposed to apply or monitor the application of an international or universal norm, which was the Convention, which itself declared that sometimes to reach equality, there was a need to treat the unequal or different in a different way - this was the whole idea behind affirmative action. The cold rule of equality could not be applied to everybody, or inequality would be preserved. In order to foster real, concrete and substantial equality, some measures needed to be taken. The Convention was a universal document, but countries faced many different problems and even different realities, and thus, the application of one standard that worked well in one area could be detrimental in another. The Committee correctly addressed lots of areas in every State that had a direct bearing on the idea of acceptance of different cultures, whilst having to bear in mind that solutions could not be universally applied. The Committee was well-intentioned, but Mr. Lindgren Alves feared that by applying a European model to the African continent it would foster disintegration of countries that had been struggling to unify countries that were too diverse to be unified naturally as had taken place in Europe.

No African State followed the boundaries of the nations that existed previously in Africa, as these had been imposed by colonial powers. On independence, African States had had to face a difficult new reality. By recognising minorities, the Committee contributed to fostering fragmentation and civil wars. Although he had used the example of Africa and Europe, Mr. Lindgren Alves said, it could be applied in many areas, for example in Latin America, where racial hatred was being fostered by perceptions being changed by foreign influences. These ideas had to be fought, and the Convention recommended the creation of multi-racial organizations that would foster integration; thus the main aim of the Convention was to integrate societies, and not to divide them. This was Mr. Lindgren Alves' greatest concern when adopting recommendations in the Committee.

The idea that cultures were monolithic, and could not be influenced and did not evolve or change was creating a reaction against foreigners, and creating a strong opposition against immigrants, who themselves became ever more cohesive in the face of the struggle to preserve and defend their values - which all led to increasing fundamentalism on both sides. Passion for one’s individual culture was becoming so violent in all possible respects in all cultures that the situation was rapidly degenerating. When the Committee insisted too much that the culture of immigrants was something sacred when displayed in the public sphere, then it would be more useful to say to the countries of emigration that those who were leaving had to respect the values of the dominant culture of the immigration countries, even if they did not apply them in the private sphere.

Other Committee Experts then raised various issues, saying, among other things, that cultures were systems of meaning through which one made sense of the world, and all were in part made up of culture, however international they were; what made up multiculturalism within a society, and how different that could be; the nature of the Convention as integrationist, even though the Committee had commended multiculturalism; the lack of one single model of multiculturalism; that all social models had human rights consequences, and the function of the Committee was to measure these as they affected groups in a broad and humanitarian fashion; issues linked to nation-building in the context of multiculturalism; that the Committee should recognise that it had probably made mistakes in its recommendations in the context of multiculturalism and how it might have been contributing by these to fragmentation of States, and that it should take multiculturalism into account in the future when formulating recommendations; the importance of affirmative action; the importance of the distinction between indigenous peoples and minorities in the context of multiculturalism in a State; and that this issue should be at the centre of attention and discussed at every opportunity by the Committee.

An Expert also suggested the drafting of a General Recommendation on the topic that would be of use when drafting future concluding observations and recommendations.

In concluding remarks, Mr. Lindgren Alves said he had noted a summary of the debate, and said that there was clearly consensus, as all agreed that there was a need for a pragmatic approach, taking into consideration the different realities of each country, which was what he had wished to convey at the beginning. If the Committee agreed, it would be his pleasure to try to draft a General Recommendation. Everybody who had taken the floor had brought a positive contribution, and it was clear all were thinking about the effect of the recommendations on reality. He proposed that the Committee adopt a political approach, knowing that the recommendations that it made could have a contrary effect than that from which was intended. The whole idea of multiculturalism was actually being destroyed. The international fora, including the Committee, were too influenced by the vision of multiculturalism of the United States and Great Britain.

The debate on multiculturalism will continue in the next session.

For use of the information media; not an official record

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