HUMAN RIGHTS COUNCIL HOLDS INTERACTIVE DIALOGUE WITH WORKING GROUPS ON ARBITRARY DETENTION AND ON MERCENARIES
The Human Rights Council this afternoon listened to presentations by the Working Group on arbitrary detention and the Working Group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, before holding an interactive dialogue with them.
Manuela Carmena Castrillo, Chairperson-Rapporteur of the Working Group on arbitrary detention, said that the Working Group had been effective in reducing arbitrary detentions. It had held a lot of country visits and discussions. The Working Group had observed that cases increased every day. In discussions, the Working Group had basically focused on the rights of prisoners and detainees. There should be a universal mechanism that fully protected the rights of detainees. The Working Group wished for an expansion of its mandate. The Working Group requested funds to carry out five country visits, which were a vital process for the Group to see what the situation was in these countries and others. There was also a need for follow-up. Four visits had been carried out, to Mauritania, Colombia, Italy, and Ukraine. During these visits, the Working Group had visited prisons, detention centres for migrants, police stations and psychiatric hospitals, in various regions of these countries.
Speaking as concerned countries to the reports of the Working Group on arbitrary detention were Mauritania, Colombia, Ukraine and Italy.
Alexander Ivanovich Nikitin, Chairperson of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, said the industry had experienced significant growth over the past few years, reaching an annual turnover well in excess of $ 100 billion, and it was operating in every region of the world. Whilst the Working Group believed that the International Convention against Recruitment, Use, Financing, and Training of Mercenaries remained an important international legal instrument for the prevention of the use of mercenaries as a means of violating human rights and the rights of peoples to self-determination, it was of the opinion that the activities of private military and security companies could not be regulated on the basis of this existing convention. Rather the Working Group considered that a new international legal instrument in the format of a new international convention on private military and security companies should be elaborated.
Speaking as a concerned country to the report of the Working Group on the use of mercenaries was the United Kingdom.
In the interactive dialogue with the two Working Groups, speakers asked how to deal with the issue of hiring of personnel by international private security companies in developing countries where economic constraints or financial priorities overshadowed the security and regulatory requirements. Several speakers agreed with the Working Group on arbitrary detention that irregular immigrants, asylum seekers and refugees should not be detained and decried increasingly harsh registration measures being adopted in some countries for these groups. Concern was also raised about impunity and immunity enjoyed by private security companies. If a State hired a military organization to perform certain military or security tasks, it should bear the primary responsibility for whatsoever crimes committed by the organization or its personnel. Several speakers agreed with the proposal of the Working Group on mercenaries that a new international convention on the use of private security companies was needed.
Speaking in the interactive dialogue were Pakistan on behalf of the Organization of the Islamic Conference, Cuba, Peru, Saudi Arabia, Egypt on behalf of the African Group, Russian Federation, Algeria, Czech Republic on behalf of the European Union, Nigeria, South Africa, Venezuela, Iraq, Switzerland, Mexico, Canada, Egypt, Brazil, Morocco, Norway, France, Malaysia and Indonesia. The International Committee of the Red Cross also took the floor, as did representatives of the following non-governmental organizations: Human Rights Advocates, Amnesty International, Colombia Commission of Jurists, North South XXI, Society for Threatened People, World Federation of Trade Unions and Centre for Human Rights and Peace Advocacy.
In concluding remarks, Ms. Carmena Castrillo said that the remarks proved that delegations held the report in high regard, and were interested in it. The Working Group would work on the basis of the proposals made. On the extension of the mandate, the international community should get together and discuss the matter. The visits of the Working Group were already an opportunity to assess the situation. There were loopholes in international instruments on migration on this issue, and the international community could not stand that the administrative deprivation of freedom continued for migrants, as that was worse than actual detention.
In concluding remarks, Mr. Nikitin said on the question asked about the time frame for the new Convention, the Working Group had already done a draft text and planned to conduct consultations with intergovernmental bodies and academia throughout this year. In 2010 they would involve consultations with national representations. The Working Group would appreciate that that time frame be included in the relevant Human Rights Council resolution.
Iraq exercised its right of reply.
When the Council meets at 10 a.m. on Monday, 9 March, it will hear a statement from High Commissioner for Human Rights Navi Pillay on the occasion of International Women’s Day (8 March) before holding a panel discussion on the right to food.
Documents
Under this agenda item, the Council has before it the Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (A/HRC/10/14), which presents an overview of activities undertaken during the reporting period and describes envisioned future activities, notably a process of regional consultations with States, to discuss the fundamental question of the role of the State as a holder of the monopoly of the use of force. The Working Group devotes a thematic section of the report to standards, principles and guidelines for a new international convention on regulating private military and security companies and other legal regulatory instruments.
Section IV of the report contains the Working Group’s conclusions and section V its recommendations. In particular, the Working Group recommends the elaboration and adoption of a new international convention on the regulation of private military and security companies, including an accompanying model law to assist Governments in the adoption of appropriate national legislation. The Working Group also proposes basic principles for the regulation of private military and security companies and recommends, when this set of principles are converted by it into draft legal instruments, the establishment in due time of an intersessional intergovernmental open-ended working group for the preparation of such a convention. Finally, section VI addresses the status of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries.
The report has a number of addendums.
The Council also has before it the Report of the Working Group on arbitrary detention (A/HRC/10/21), which includes several issues which have given rise to concern during 2008. In particular, the Working Group denounces the fact that an important proportion of the 9 million persons deprived of their liberty worldwide are unable to benefit from legal resources and guarantees that they are entitled to for the conduct of their defence. Most do not have the economic means to afford expensive and complex legal procedures. They not only have difficulties in verifying the lawfulness of their detention, but also find themselves subject to lack of an effective control of their other rights. Therefore, the Working Group proposes to the Human Rights Council an extension of its mandate to include the monitoring of State compliance with their obligations concerning all human rights of detained and imprisoned persons.
The Working Group includes in its report a list of principles that it has elaborated concerning deprivation of liberty of persons accused of acts of terrorism. It also proposes to hold a special forum on the respect of the right not to be arbitrarily deprived of liberty in the counter-terrorism context, giving special consideration to the methods and framework applied by the States in emergency situations. The Working Group notes that the corruption it has observed in some countries makes the whole system of guarantees devoid of any content and reduces the credibility of the entire administration of justice system. It calls upon States to become a party to the United Nations Convention against Corruption, which recently entered into force. Finally, the Working Group reiterates that immigrants in irregular situations should not be qualified or treated as criminals nor viewed only from the perspective of national security. Detention should be of the last resort, permissible only for the shortest period of time.
The report has a number of addendums.
Presentation of Chairperson-Rapporteur of Working Group on Arbitrary Detention
MANUELA CARMENA CASTRILLO, Chairperson-Rapporteur of the Working Group on arbitrary detention, said that the Working Group had been effective in reducing arbitrary detentions. There had been increased discussions and thematic debates. There had been a lot of country visits and discussions. The Group had observed that cases increased every day, and in many cases prisoners had been asked by the Group whether their human rights were being protected, and they had said that there were observers, but they had no recourse. In discussions, the Group had basically focused on the rights of prisoners and detainees. There should be a universal mechanism that fully protected the rights of detainees. A lot remained with regards to civil and political rights, and work needed to be done to increase re-integration. The Group wished for an expansion of its mandate.
Not all efforts were pointless - the Group was looking forward to the closing of the Guantanamo Bay facility. Some of the things that had been seen during visits concerned people who were being detained simply because of their irregular migration status, and this was not correct. The Working Group requested funds to carry out five country visits, which were a vital process for the Group to see what the situation was in these countries and others. There was also a need for follow-up. Four visits had been carried out to Mauritania, Colombia, Italy and Ukraine. During these visits, the Working Group had visited prisons, detention centres for migrants, police stations and psychiatric hospitals, in various regions of these countries. Changes in the laws in these countries proved of interest, in particular with regards to changes in the penal system, where increased respect of human rights could be seen in some countries.
With regards to counter-terrorism, there was a need to ensure that there was a legal framework which applied. There was also a need for court control of pre-trial detention, and to remove abuses of powers of administrative offences detention in some countries. A structure of inter-related mechanisms to prevent arbitrary detention was the best means for this, and it did exist in some Western countries, although there could be a delay in pre-trial detention in this regard. Migration was considered an aggravated circumstance in some situations, and this was a worrying feature of the situation - there should be some progress made in this area to ensure that this shortcoming was overcome, and that immigrants were not over-represented in the prison population. On the inter-relation between corruption and violation of human rights, this was a subject which required further investigation, as in many cases people investigating human rights violations did not do so effectively - there was a feeling of disillusionment, and there was as a result a need for better human rights education at a broad level. There was a need to create greater awareness of the issue and its remedies.
Presentation of the Chairperson of the Working Group on Mercenaries
ALEXANDER IVANOVICH NIKITIN, Chairperson of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, gave an update on the key activities that the Working Group had carried out over the past year. It had undertaken a country visit to the United Kingdom and it had held a regional consultation in Moscow for countries in Eastern Europe and Central Asia. The Working Group had continued to monitor the phenomenon of the use of mercenaries, including its impact on the enjoyment of human rights around the world, and it had continued to communicate individual allegations of human rights violations to concerned States. The Working Group had also continued to observe the activities of private military and security companies as mandated more recently by the Council. The industry had experienced significant growth over the past few years, reaching an annual turnover well in excess of $ 100 billion, and it was operating in every region of the world.
It was not enough to simply agree on principles. These principles must be translated into real legally-binding standards. Whilst the Working Group believed that the International Convention against Recruitment, Use, Financing, and Training of Mercenaries remained an important international legal instrument for the prevention of the use of mercenaries as a means of violating human rights and the rights of peoples to self-determination, it was of the opinion that the activities of private military and security companies could not regulated on the basis of this existing Convention. Rather the Working Group considered that a new international legal instrument in the format of a new international convention on private military and security companies should be elaborated. Such an international convention was potentially to be supplemented by a model law which would assist Governments in the elaboration and adoption of appropriate national legislation.
The Working Group believed that the Council should take note that even with the likely withdrawal of international forces from countries such as Iraq or Afghanistan, the issue of the rules and status of private military and security companies would remain. The issue might even increase in urgency as some functions formerly performed by such forces might be transferred to private military and security companies remaining in the region. The Working Group believed that the way ahead was a challenging one. The private military and security industry was a global phenomenon with tremendous reach and substantial resources, operating amongst some of the most vulnerable people in the world. The need to ensure the promotion and protection of human rights in this respect was greater than ever.
Concerned Countries Responding to the Working Group on Arbitrary Detention
BAL AMDOU TIDJANE (Mauritania), speaking as a concerned country on the report of Working Group on arbitrary detention, said that Mauritania welcomed the visit of the Special Rapporteur in 2008. Mauritania also seized this opportunity to say to the Council that it was committed to work with all its Special Procedures and mechanisms as well as all relevant international instruments to which it was party to. The Government of Mauritania also welcomed the commitment of the High Commissioner for Human Rights for her Office’s work in this regard, as well as the discussion of establishing a regional office for human rights in the country. The report which was presented by the Working Group on arbitrary detention on the one hand mentioned the positive aspects related to the administrative, institutional and judicial level, and on the other hand, mentioned the heavy burden of the economic and financial implications on the country. Following 6 August 2008, the Government had taken serious efforts to strengthen the judicial system, the conditions of detention, and to fight corruption in the country. The situation of children with respect to conflict and justice needed to be taken into consideration as well. The Government also took good note of the final recommendations of the Working Group on arbitrary detention, and would continue to strengthen the living conditions of prisoners and the legal system. Moreover, the Government aimed to ensure to improve the legal and institutional legal framework of detention, the real implementation of permanent control of magistrates for prisoners held on remand, and the improvement of living conditions of prisoners. These measures spoke volumes for the commitment on behalf of the Government of Mauritania to promote the rights of all to a fair process.
ANGELINO GARZON (Colombia), speaking as a concerned country, thanked the Working Group on arbitrary detention for their report and their visit. Colombia always had an open invitation to all Special Procedures. In the spirit of compromise, Colombia had welcomed the visit of the Working Group, hoping its comments and contributions would contribute to an analysis and stocktaking of achievements, allowing the country to press ahead and face up to the challenges in the mandate of the Working Group. During its visit, the Working Group had the opportunity to meet various representatives from civil society and the public. It was regretted that the majority of the comments submitted had not been taken into consideration - many of the recommendations made by the Working Group were not in line with the legal provisions of the Colombian State, which was based on democratic policy.
Colombia had full habeas corpus as a guarantee that could be invoked by any citizen who believed they had been illegally detained. Colombia could not accept the conclusion of the Working Group according to which it was delegating detention to private companies and individuals - there was no such policy. Arbitrary detention was a crime against humanity, and the Colombian people had fallen victim to this at the hands of armed groups. In the development of their mandate, Special Procedures should closely keep to the Code of Conduct in order to guarantee their objectivity and impartiality and not affect other proceedings. As the national Government had said at the highest level, the State would continue to ensure that those implicated in enforced detention and extra-judicial executions were punished and the victims given compensation. This was not a case of a State avoiding its responsibilities - however, Colombia preferred to act on the truth and the real situation.
MYKOLA MAIMESKUL (Ukraine), speaking as a concerned country, said that Ukraine highly appreciated the visit of the Working Group and considered it as very helpful. It was a good opportunity to assess the situation with regard to detention through the eyes of the international experts. The Working Group’s report, findings and recommendations had undergone a very thorough examination. All relevant national authorities had extended to the Working Group their fullest cooperation during the entire visit and in all areas concerned. Ukraine appreciated that the Working Group took note of the existence of various means to combat arbitrary detention such as the Ombudsperson, mobile monitoring groups and public councils, as well as of a number of important legislative initiatives launched so far.
Ukraine was well aware of the problems that still existed. The Working Group had raised some issues of concern and made its valuable recommendations, which had been fully appreciated. The Ukrainian national authorities had prepared and transmitted to the Working Group a number of comments, observations and explanations. For example, while sharing the Working Group’s concern about alleged violation of the rights of detainees on the stage of pre-trial detention, including reported cases of ill-treatment, it said that in 2008, 293 criminal investigations against more than 1,500 officers had been instituted. In 2009 to 2011, the Ministry of Internal Affairs of Ukraine together with the human rights organization would be the partner of the European Commission project on the prevention of torture in Ukraine.
NICO FRANDI (Italy), speaking as a concerned country on the report of the Working Group on arbitrary detention, thanked the Working Group for its mission to Italy. Italy renewed its commitment to grant all Special Procedures and human rights mechanisms cooperation and assistance in the fulfilment of their mandate. The Italian Government provided the Working Group with several documents and dossiers throughout the mission, in an effort to clarify issues, which were not always properly and exhaustively addressed in the report before the Council today, due to their objective complexity. Italy took the Working Group’s issues of concern and recommendations very seriously.
On remand detention, Italy recalled that the judicial system in the country was based on the so-called principle of multiple instances, whereby everyone was presumed innocent until proven guilty by a definitive verdict. Such constitutional – and international – principles often determined an excessive duration of criminal proceedings. Italy acknowledged that the duration of judicial proceedings was a matter of concern. However, Italian authorities had adopted measures to address this situation. Italy reiterated that remand detention was adopted as a last resort, under those circumstances strictly envisaged by the criminal procedure code, which included a specific judicial mechanism to challenge such measures and its prompt cessation if such circumstances did not exist anymore.
Concerned Country Responding to the Working Group on Use of Mercenaries
BOB LAST (United Kingdom), speaking as a concerned country with regards to the report of the Working Group on the use of mercenaries, said the report enquired about the status of a review of a Green Paper on Options for Regulation which set out a number of issues surrounding the regulation of Private Military and Security Companies. Unfortunately, the review and subsequent analysis had highlighted difficulties in implementing or enforcing each of the options considered. However, the Government remained committed to finding a workable solution to this issue, and the Government had undertaken to keep Parliament fully informed of its proposals in this area. The Government ensured that all contracts were subject to a rigorous selection process - any company engaged by the Government needed to pass through a stringent and transparent procurement process in line with Public Procurement Guidelines and Best Practice.
The Working Group was thanked for their initiative for an international instrument on private military and security companies, and the Working Group should elaborate further on how they saw this working, and what processes would be followed to establish it. The United Kingdom Government also considered international regulation a viable option, and had agreed to the Montreux Document along with 16 other States. This reaffirmed and clarified existing obligations of States and other international actors under international law, especially international humanitarian law and human rights law. It also identified good practices and regulatory options to help States promote respect for these. This initiative was an important milestone in bringing together the international community and increasing international cooperation on regulating the industry.
Interactive Dialogue on the Reports of the Working Groups on Arbitrary Detention and on the Use of Mercenaries
ZAMIR AKRAM (Pakistan), speaking on behalf of the Organization of the Islamic Conference, said that the mandate of the Working Group was to look into the specific nature of arbitrary detention, which was a cause of concern to all Member States. But rights and privileges of detainees was a separate subject. The rights of detainees did not differ from the rights of normal citizens and were part of every Government’s responsibility and should accordingly be taken into consideration. Proliferation of mandates was an issue of concern for the Council. Would the Working Group explain why it preferred the creation of a special forum over proper utilization of pertinent treaty bodies to which States were bound to report on the relevant treaty obligations?
The Organization of the Islamic Conference also wanted to know the view of the Working Group on issues of secret detention centres manned and mandated by foreign governments in the territory of some States. Similar questions arose in cases of competence, judicial oversight and protection of human rights of detainees in areas under the effective control of foreign forces, whether or not forcible. Further, the Organization of the Islamic Conference asked how to deal with the issue of hiring of personnel by international private security companies in developing countries where economic constraints or financial priorities overshadowed the security and regulatory requirements.
RAFAEL GARCIA COLLADA (Cuba) welcomed the valuable reports presented by the two thematic Special Procedures before the Council today. Cuba expressed concern regarding the lack of an international norm governing military companies, and urged that the vacuum in which they operated be bridged. Furthermore Cuba asked if possible what would be the amount of time required for a consolidated report on the issue of large scale military actions and mercenaries, which consequently took the lives of thousands of Cubans. The delegation of Cuba urged that the cases involving the unjust and arbitrary detention in the United States of Gerardo Hernandez, Ramon Labonino, Antonio Guerrero, Fernando Gonzales and Rene Gonzalez, be put to an end, as these Cubans fought for the protection of Cubans.
CARLOS SIBILLE (Peru) said the Working Group on arbitrary detention was to be thanked for their work. With regards to the detention of migrants in irregular situations, Peru agreed with the concern of the Working Group on the increasingly harsh registration measures being adopted in certain countries for immigrant groups, who were being detained up to 18 months before being expelled, which was not in the spirit of human rights, diverging from the letter and spirit of human rights instruments. On the report of the Working Group on mercenaries, concerning the development of a new international convention and the expansion of the mandate, it should be clarified as to what would be the scope of an exercise of this sort, with a more clear definition of the phenomenon of mercenaries.
Peru believed that the work done by most of the private companies in Peru as well as the services for municipal security were not in the purview of the Working Group, as their work was not being done in a zone of armed conflict and had no international dimension, nor did it relate to the destabilisation of Governments. The work of these companies in Peru was governed by a legal framework with a clear definition of their jurisdiction and scope, as well as of their employees, which had to be duly registered.
ABDULAZIZ M.O. ALWASIL (Saudi Arabia) welcomed the report of the Working Group. Saudi Arabia was continuously working together with the Working Group in the most accurate way possible. However, Saudi Arabia regretted that a number of accusations in the report of the Group had been presented in a very general way, making it impossible to react appropriately. Saudi Arabia attached great importance to the proper process of responding and did not want to limit itself to preliminary thoughts. Most of these accusations in question were related to tourists in Saudi Arabia. Saudi Arabia confirmed what had been mentioned earlier by the Organization of the Islamic Conference, namely that the tasks of the Working Groups were limited by their mandates which were subjected to regular review. The Working Group should be aware of the scope of its mandate in order to avoid duplication of work.
AMR ROSHDY HASSAN (Egypt), speaking on behalf of the African Group, welcomed the report of the Working Group on the use of mercenaries. It meticulously studied the different dimensions of the issue of private military security companies. Africa had traditionally been one of the leading victims of the use of mercenaries to impede the stability of Governments and societies. It was because of this that the African Group was extremely worried at the growing activities of those so called “security companies”. The state of full impunity, and in many cases, immunity, enjoyed by those militias was of serious concern to the African Group. The African Group emphasized the legal responsibility of the contracting State, not only the countries of origin or operation. If a State should hire a military organization to perform certain military or security tasks, it should bear the primary responsibility for whatsoever crimes committed by the organizaton and/ or its personnel. The contracting State should not be acquitted or allowed to derogate its legal commitments.
Mr. R. KASHAEV (Russian Federation) said in the report of the Working Group on arbitrary detention, a very topical issue had been taken up - that of detention in the context of counter-terrorism efforts. Since 2001, this had taken on considerable extent - in many countries, under the pretext of combating terrorism, there were cases of arbitrary detention without charges, and it was used as an excuse. Sometimes people who had been arbitrarily arrested and suspected of terrorism were taken to third party countries, and this was inadmissible. People who were detained under suspicion of terrorism should be given guarantees of judicial protection.
On the Working Group on mercenaries, this Group deserved further support from the Human Rights Council. The regional seminar which took place in Moscow in autumn last year had had a positive outcome. This type of work would promote a change in positions espoused by those who continued to assert that human rights could only be violated by States or their actors. States which were using private companies for armed protection for their operations abroad should assess stringently whether the employees of these companies were living up to the commitments under international human rights law. The privatisation of armed conflicts was intolerable, and States that used private companies rather than units of their regular armies should cease this practice.
IDRISS JAZAIRY (Algeria) thanked the President of the Working Group on arbitrary detention for the presentation of the report. Algeria appreciated the Working Group’s initiative to revise its working methods, namely those related to the procedure of urgent appeals, in order to show the full alignment with resolution 5/2 of the Council. Algeria supported the idea that immigrants in an irregular situation should not be treated as criminals. They had a right to the full respect of their dignity and a right to appeal with the relevant authorities. Last year, the mandate of the Working Group had been revised which led to its rationalization and improvement. The mandate of the Group was clearly defined and all modification or revision of the same procedures would have to take place in the three years cycle which had been foreseen for that purpose.
Every enlargement of the mandate beyond the scope of arbitrary detention was to be avoided, in particular, the mandate of the Working Group that concerned the individual cases of persons in arbitrary detention. The respect of the human rights of detainees was subject to other human rights protection mechanisms. The Group had suggested the holding of a special forum to discuss the questions relating to arbitrary detention in the context of the fight against terrorism. In Algeria’s view, such a forum would interfere with the mandate of the Special Rapporteur on human rights and the fight against terrorism.
JANA REZNA (Czech Republic), speaking of behalf of the European Union, said that the European Union attached great importance to the work that the Working Group on arbitrary detention had accomplished. The European Union shared the view that future visits and follow-ups were of utmost importance. The suggestion made by the Working Group to expand the scope of its mandate so as to address all human rights of detained persons might go far beyond its regular focus on arbitrary detention, for which the Working Group had already claimed to need additional capacities for future work. The European Union was however interested to have further discussions among all relevant experts on this issue.
Among the conclusions and recommendations, the Working Group had noted with concern a development towards growing restrictions, including deprivation of liberty, applied to asylum seekers, refugees and immigrants in an irregular situation and emphasized that alternatives to detention had to be sought. Could the Working Group further elaborate on concrete proposals?
IFEANYI NWOSU (Nigeria) said with regards to the report of the Working Group on arbitrary detention, Nigeria was in agreement with the Group that immigrants in irregular situations should not be treated as criminals or viewed from the perspective of national security. However, a line of distinction should be drawn between the rights and privileges of those detained under the law and those on arbitrary detention. Nigeria wished to endorse the recommendation of the Working Group with regard to a halt to any further deportation of persons suspected of terrorist activities to countries where they were at risk of arbitrary detention and torture and measures should be adopted to increase the access to alternatives to imprisonment for immigrants in conflict with the law, both in the adult and the juvenile justice systems.
With regards to the work of the Working Group on mercenaries, Nigeria agreed that a new international convention on the use of the private security companies was needed, with the aim of ensuring better implementation of human rights and preventing violations that could be caused by the use of private security companies.
GLAUDINE J. MTSHALI (South Africa) said that the mandate of the Working Group on the use of mercenaries was a complex one as it touched upon activities on non-state actors, particularly the private military and security companies. South Africa therefore saw the merit of the Working Group’s approach of the need to regulate the activities of these entities in so far as they related to violations of human rights and the exercise of the right of peoples to self-determination. South Africa concurred with the Working Group that the international legal framework in the area of human rights addressing mercenaries and mercenary-related activities required further attention and strengthening. It was also its belief that concrete proposals in possible complementary and new standards, aimed at filling the existing gaps to address challenges in the area of recruitment, use, financing and training of mercenaries, was imperative.
South Africa was of the view that the issues and challenges presented by the recruitment, use, financing and training of mercenaries could be meaningfully addressed by investigating sources and root causes as well as political motivations that manifested themselves in mercenaries and mercenary-related activities. South Africa would also appreciate more information on the Working Group’s assessment of possible reasons attributable to such a low number of ratifications to the International Convention on Recruitment, Use, Financing and Training of Mercenaries, despite the instrument having been adopted by the United Nations General Assembly in 1989.
FELIX PENA RAMOS (Venezuela) said that Venezuela appreciated the work of the Working Group on mercenaries and reaffirmed Venezuela’s support to the Working Group. The national Government was carrying out studies to make sure that they would be soon part of the Convention. The privatisation of armed conflicts had to be avoided and was contrary to international law. Venezuela also wanted to express their concern with regard to the United States, which had not answered the request of the Working Group and Venezuela’s extradition request of the terrorist Mr. Luis Posada Carriles. The United States should comply with its legal and international obligations.
DINDAR ZEBARI (Iraq) said with regards to the work of the Working Group on arbitrary detention, Iraq was committed to continuing its efforts that were in line with the protection and promotion of human rights. In this regard, the Government had established a monitoring committee in the Ministry of Human Rights to supervise the situation of detainees in prisons and to guarantee fair trial according to international standards, as well as ensuring special consideration for women in prison in order to improve their situation and give them the necessary protection. Detention environments and facilities had been closely monitored, and the Government had taken practical steps to improve and address any observed shortcomings. Work was also underway to develop plans for social rehabilitation programmes.
Several committees had been formed at the highest level in order to ensure the progress being implemented in the field of arbitrary detention. Strict instructions had been issued to security and police forces not to detain anyone without warrant or charge, not to use torture, and not to put undue pressure on any detainee or suspect. Pragmatic steps had been taken to create a more independent judiciary and to give judges greater autonomy, freedom and resources. The authorities of Iraq wished to stress that they would continue to do whatever they could to eliminate the shortcomings in terms of needs within prisons, the treatment of detainees, and especially during the judicial process.
DANIEL KLINGELE (Switzerland) said that Switzerland believed that much more could be done on a national level regarding private military and security companies. Switzerland was surprised by the Working Group’s assessment of the Montreux Document. The Document did not want to ensure that such companies would become legitimate. It was not approving the use of private military and security companies, quite the contrary. Nobody believed that the Geneva Convention approved of armed conflict, the same was the case for the Montreux Document with regard to private military and security companies. The Montreux Document did not meet particular regional requirements, Switzerland and the International Committee of the Red Cross had begun the work for purely humanitarian reasons. It was never conceived as the final stage in the work, rather the beginning. Switzerland appreciated that several countries, among them Ecuador and the Netherlands, supported the Montreux Document. Switzerland was hoping to continue the dialogue with the Working Group and asked how long it would have to wait to see the adoption of the Document the Working Group was suggesting and what were the main challenges?
Regarding arbitrary detention, Switzerland shared the findings of the Working Group on the fact that there was a gap concerning the protection and the implementation of human rights of detainees. Switzerland suggested the holding of a dialogue with the Working Group, regional mechanisms, the Sub-Committee for the prevention of torture and other degrading treatment and the Special Rapporteurs of the Human Rights Council on the subject.
SALVADOR TINAJERO ESQUIVEL (Mexico) thanked the two Chairpersons of the Working Groups for presenting the two reports. It was particularly important that the Working Group on arbitrary detention was taking an overall assessment of the issue of the detention of immigrants. This practice should be done in last resort and not become a general rule. Legislation in this regard had to be in full compliance with human rights standards and regulations. Mexico urged the Working Group to keep its attention in the issue.
Concerning the extension of the mandate to all forms of detentions, this might be too difficult for the Working Group to do. Had the group conceived any other ways for the Council to consider the issue of people deprived of their liberty? Mexico also welcomed the list of principles regarding the deprivation of freedom of people accused of terrorism.
SEBASTIEN MALO (Canada) said, with regard to the report of the Working Group on arbitrary detention, that Canada was deeply concerned by instances of arbitrary detention in countries around the globe, and it appealed to Member States to cooperate with the Working Group in addressing the concerns it had raised in its appeals and opinions. Canada had signed and ratified the United Nations Convention Against Corruption. In partnership with others, it was committed to strong and continued support for the implementation of that important Convention, and agreed with the Working Group's recommendation that States that had not yet become a party to that Convention should ratify or accede to it. States parties should fully implement the Convention, including those measures in the Convention most suitable and adequate for efforts in combating arbitrary detention. It was asked which were the measures in the Convention the Working Group viewed as most relevant to its mandate?
AMR ROSHDY HASSAN (Egypt) said that Egypt would not comment on the Montreux document because it was not, maybe not yet, a United Nations document. Everybody had to be clear about the fact that private military and security companies were not the good guys, that they were not guarding shopping malls or kindergartens. They were, rather, well-trained guys that were used in armed conflict. That was a violation of human rights by proxy. States hired others to break the law on their behalf. Those so-called security personnel were violating human rights and still enjoyed impunity. But, if a State was hiring someone to wash its dirty laundry, it was still the State’s laundry and the State had to be punished. Something had to be done in that regard. Egypt was of the view that the whole issue was moving in the wrong direction. So far, it seemed as if they were asking drug dealers to pay taxes in order to make their work legitimate.
FRANKLIN R. HOYER (Brazil) welcomed the recommendations contained in the reports of both Working Groups. Brazil also recognized the relevance of the Working Group on arbitrary detention and was pleased to hear that efforts from the Working Group had, in many cases, resulted in the release of detainees’ or in the assurance of a fair trial. On the issue of migrants in an irregular situation, Brazil fully agreed with the Working Group that they should not be qualified or treated as criminals. In that regard, it was with concern that Brazil noted a worrying escalation of restrictive laws and measures concerning migration. It also fully supported the Working Group’s recommendation concerning the use of detention as a last resort.
Brazil further fully supported the observation contained in the report of the Working Group that fighting corruption was essential to reinforce the efficacy and the credibility of any system of guarantees and the administration of justice. It was a source of deep concern for Brazil that a significant part of the 9 million persons deprived of liberty worldwide were unable to benefit from legal guarantees. On the measures undertaken to promote and protect human rights while countering terrorism, Brazil welcomed the list of principles and stressed that compliance with United Nations human rights standards while considering the use of mercenaries was an important goal.
HASSANE BOUKILI (Morocco) thanked the Chairperson of the Working Group on arbitrary detention. Morocco was taking tangible action in its policies to ensure that human rights were respected at a legislative and legal level. Morocco’s commitment to do that was also reflected in its international commitments. Protections against arbitrary actions were also ensured in the domestic law of Morocco. Efforts concerning the areas of awareness-raising and training on human rights were also strengthened by recent reforms to penal policies, in particular with regard to the management of the work of judicial police officers in situations where persons were detained. The Government of Morocco also took measures for the promotion and protection of the human rights of detainees with its reform of the policy of public freedom, the reintegration of detainees, and improvement of prison conditions.
SVEIN MICHELSEN (Norway) expressed satisfaction that Colombia had invited the Working Group on arbitrary detention to Colombia and had arranged meetings with the Government, legal authorities and organisations from civil society. Norway also praised the fact that the Government had invited the Working Group to visit different prisons and police stations, and had arranged private meeting with hundreds of inmates. Norway, however, shared the concerns of the Working Group regarding the practices of massive detentions on behalf of the military in rural areas, the practice of preventive detentions on behalf of the national police, detention in marginalized areas of the big cities, particularly of beggars, indigents and ethnic and sexual orientation minority groups. Norway also shared the concern of the Working Group on the overpopulated prisons, absence of judges in prisons and the lack of solid evidence to keep detainees.
Norway supported the recommendations made by the Working Group to Colombia to continue certain efforts to improve the penal code, to abolish the practice of massive detentions on behalf of the military and private agencies and to appoint more judges and strengthen the institutions protecting human rights. Norway commended the Working Group for the high degree of quality and professionalism it had displayed during its visits.
CORDOLA DROEGE, of the International Committee of the Red Cross, said that, on the issue of private military and security companies, while that was not a new phenomenon, the extent and the nature of their activities were changing. More and more, private contractors carried out activities that were close to the heart of military operations, including combat functions. Therefore, the International Committee of the Red Cross had reminded States of their obligation to ensure respect for international human rights and humanitarian law.
The International Committee of the Red Cross had also cooperated in the intergovernmental process that had led to the Montreux Document on private military and security companies. The Document recalled existing obligations of States under international law. It had not been meant, however, to address regulatory gaps. The Document recalled that, under human rights law, States had obligations to adopt legislative and other measures to give effect to human rights, including by taking measures to prevent and investigate misconduct. It also recalled the obligation of States to investigate, prosecute and punish persons who had committed crimes under international law.
DANIEL VOSGIEN (France) aligned itself with the statement made by the Czech Republic on behalf of the European Union. France thanked the Working Groups for their substantive reports. On arbitrary detention, a draft resolution would be presented by France during this session of the Council. France was committed to continue to show its vigilance when looking at the situations of arbitrary detention, and reiterated its commitment to assist in finding solutions to, and to provide the needed support to the Working Group’s work. Substantive aspects, among others, in particular with regard to counter-terrorism and the situation of immigrants and asylum-seekers should be further strengthened. France recommended that the scope of the Working Group be expanded to cover questions of human rights for all people kept in detention. In addition, France recommended that there be an increased allocation of resources to the Working Groups in order to make possible their ability to increase the number of country visits. France asked the Working Groups, how could one know more about the different avenues in this regard that had yet to be explored.
SITI HAJJAR ADNIN (Malaysia) said Malaysia concurred with the Working Group’s opinion that the problem of corruption was detrimental to the rule of law and the effective fulfilment of human rights. It called on States that were not yet Party to the United Nations Convention against Corruption to consider doing so. Malaysia noted the Working Group’s decision concerning a person detained under Malaysia’s preventive detention laws and regretted the classification of that detention as arbitrary. Malaysia reiterated that, notwithstanding the decision of the Working Group, the criteria for the application of preventive detention laws in Malaysia were most stringent and those were complemented by equally stringent legal and administrative safeguards, aimed at fully ensuring the protection of rights of persons detained under those laws.
In Malaysia, recourse to appeal against the detention order remained open to detainees throughout their detention. In addition, the basic rights of those detained persons were not extinguished. Among others, they enjoyed equal visitation rights, access to medical treatment, medical services and medicine, and they were fully protected against torture and cruel or inhuman treatment.
WIWICK SETYAWATI FIRMAR (Indonesia) said that Indonesia, as a full-fledged democracy, had stipulations concerning the crime of arbitrary detention in its law of criminal procedure, which carried criminal penalties. Those stipulations were implemented in accordance with the law on criminal procedure, which contained provisions on the legal rights of a suspect or detainee. They also accorded basic rights to justice to those in conflict with the law. The law also served as a societal safeguard against possible abuse of power by those in power. Further, the Ombudsman’s Office was entrusted with the mandate of monitoring the Government.
A Constitutional Court had also been established to ensure that the values and norms guaranteed in the amended Constitution were strictly implemented through series of substantive and procedural national legislation. Furthermore, there was system of checks and balances between the various branches of Government, as well as a free and vibrant media and an active civil society. All that reflected the fact that Indonesia, as a sovereign democratic country, observed the rule of law. However, they also fully recognized that their legal reform was not yet complete and they stood ready to receive and study all views and inputs from relevant human rights mechanisms.
AMOL MEHRA, of Human Rights Advocates, said that the Working Group on mercenaries had noted that globalization had increasingly expanded opportunities in the private security industry. Problems with developing an international consensus around the obligation of those actors had resulted in a lack of support for the Convention against Mercenaries. Most importantly, none of the related treaties or resolutions had been directed at the corporate entity itself. A recent development, the Montreux Document, sought to bring the corporate actor within a human rights framework. However, accountability gaps remained where States did not have effective domestic regulation, or lacked regulation over private military and security companies.
RACHEL BRETT, of Friends World Committee for Consultation (Quakers), in a joint statement with Amnesty International, said, with regard to the Working Group on arbitrary detention, that Amnesty International agreed with the analysis that although a number of the existing thematic Special Procedures mandates could address aspects of the human rights of persons deprived of their liberty, there was no current means of considering the entirety of the human rights of that particularly vulnerable group of people. Such persons were subjected to restrictions on their rights and the scope of the enjoyment of the whole range of human rights by those persons and its practical application would benefit from expert examination. The Chairpersons should expand on their recommendation that the experience of Special Procedures should guide the United Nations' consideration of how best to address that gap in the United Nations Special Procedures system.
ISABELLE HEYER, of the Colombia Commission of Jurists, thanked the Working Group on arbitrary detention for its visit to Colombia in 2008. The Working Group had said that it had been informed about a secret directive which allowed for the payment of a compensation for people who would testify against members of the guerrillas. The Working Group had, however, not been able to determine that that directive existed. But at the end of 2008, public opinion in Colombia had become aware of its existence. Payment of compensation was issued for the killing or the capture of the chiefs of armed groups. Hundreds of thousands of people had been arbitrarily detained or killed in extrajudicial killings. The national army, based on information provided by combatants, was also carrying out arbitrary detention of human rights defenders, trade unionists and journalists. It was essential for legal standards to be adopted to limit detention to police forces. The Colombian Commission of Jurists called for the implementation of the recommendations of the Working Group and for Colombia to ratify the Optional Protocol to the Convention against Torture.
CURTIS DOEBBLER, of North South XXI, welcomed the report of Working Group on arbitrary detention and was particularly interested in their work as they addressed some of the most severe situations involving human rights violations in the world. North South XXI commended the Working Group for the promotion of provisions of the Universal Declaration of Human Rights and the Convention on Arbitrary Detention. They also welcomed the concern about domestic and regional initiatives on migrants in irregular situations, who should not be considered criminals. With regard to the arbitrary disappearance of Muhammad Al-Dani of the Iraqi Government, his whereabouts remained unknown, and as such North South XXI was concerned by the political nature of this case, and in particular the imposition it implied on the right to participate in Government.
TENZIN KAYTA, of the Society for Threatened People, said, with regard to the Working Group on arbitrary detention, that it should remain vigilant when following up on the recommendations to China, especially after the large number of detentions of Tibetans since 10 March 2008. In reaction to those massive detentions, the Committee against Torture had recommended that the Chinese authorities ensure that all persons who had been detained or arrested in the aftermath of the March 2008 events have prompt access to an independent lawyer and independent medical care and the right to lodge complaints in a confidential atmosphere, free from reprisal or harassment. If that recommendation was sincerely considered, then the Chinese Maintenance of Public Security (Penalties) Act would achieve its implementation in the full sense. Otherwise, systematic violations of the rules and regulations enacted by China to restrict administrative detention were not only continuous but took place with impunity.
DAHA RAHMOUNI, of the World Federation of Trade Unions, believed that in the Western Sahara, human rights continued to be violated. The excessive use of violence went hand-in-hand with restrictions imposed on Sahraoui human rights defenders and on freedom of expression. Sahraoui workers were suffering injustice and where deprived of their most basic rights.
MARIANA MERMET, of the Centre for Human Rights and Peace Advocacy, said that if there was any country in the world today that had emerged as a holding company for mercenary groups, any of which were also responsible for terrorist activities, it was Pakistan. They lauded the suggestion of the Working Group on Mercenaries that there should be efforts to ensure that the fundamental role of the State, as a holder of the monopoly of the use of force, was upheld. The Working Group had suggested that an inter-governmental open-ended working group be set up which would include nominated representatives of interested States. Moreover, the scope of the Working Group on Mercenaries should be extended to include the jihadi terrorist groups coming out of Pakistan.
MANEUELA CARMENA CASTRILLO, Chairperson-Rapporteur of the Working Group on Arbitrary Detention, in concluding remarks, said that the remarks proved that delegations held the report in high regard, and were interested in it. The Working Group would work on the basis of the proposals made. The response from Mauritania had just been received, and that was very welcome. On the statement made by Colombia, the Working Group could say that the legal framework that Colombia had was extraordinary – it had an exemplary Constitution, without a doubt. The Working Group had spoken on other occasions with various representatives and groups within the Government and had been given figures backing up the irregular situations noted in the report. It was therefore not that the Working Group had not accepted the recommendations. Regarding Ukraine, the corrections that had been made were limited to formal mentions, but the Working Group would do what it could with regard to the programme. For Italy, the Working Group was concerned that compared to other countries it had such a high percentage – 60 per cent as compared to 20 per cent – of people on remand, and did not believe that there was anything in place to justify that situation.
Interesting comments had been made on all issues raised. It would be interesting to hold a forum on all those principles, including instruments for the protection of those accused of terrorism. That should be held so that these principles could be settled. On the extension of the mandate, the international community should get together and discuss the matter. The visits of the Working Group were already an opportunity to assess the situation. There were loopholes in international instruments on migration on this issue, and it could not stand that the administrative deprivation of freedom continued for migrants, as that was worse than actual detention.
ALEXANDER NIKITIN, Chairperson-Rapporteur of the Working Group on the use of mercenaries as a means of impeding the exercise of the rights of peoples to self determination, in concluding remarks, said that the Working Group appreciated the position of the United Kingdom that they were considering international regulations as a viable option. It was necessary to specify if the legal framework had to be defined through was a Code of Conduct for companies or through international law. Intensive consultations between nations had to happen in that regard. On the question by Cuba and Switzerland, which had asked for the time frame for the new Convention, the Working Group had already done a draft text and planned to conduct consultations with intergovernmental bodies and academia throughout this year. In 2010 they would involve consultations with national representations. They would appreciate that that time frame be included in the relevant Human Rights Council resolution.
Mr. Nikitin also insisted that the United Nations should cooperate with the Swiss initiative, as it was preparing a series of meeting to discuss a code of conduct of companies. This time the United Nations should be involved and he hoped that they would be productive meetings. Also, the whole problem was far more complex as the United Nations themselves were also using private companies in the framework of United Nations peacekeeping operations.
Right of Reply
DINDAR ZEBARI (Iraq), speaking in a right of reply, said that, with regard to the issue of Muhammad Al-Dani, that case was a matter relating to Iraqi security, where information had been provided that he was behind the explosion at the Iraqi parliament, which claimed the lives of many innocent people. Upon the establishment of an inquiry commission on the incident the alleged person was absent when called before the inquiry commission. As things currently stood, the Iraqi authorities were looking for Al-Dani so as to have him appear before an independent commission. Moreover, the allegations made by North South XXI were incorrect and it was informed by inaccurate information.
For use of the information media; not an official record
HRC09022E