Human Rights Council holds interactive dialogue on arbitrary detention and on the human rights of internally displaced persons

MORNING

7 March 2012

The Human Rights Council this morning heard the presentation of the report of the Special Rapporteur on the human rights of internally displaced persons and then held an interactive dialogue on arbitrary detention and on the human rights of internally displaced persons.

Chaloka Beyani, Special Rapporteur on the human rights of internally displaced persons, said that the annual thematic report for 2012 was dedicated to the situation of internally displaced persons living outside of camp settings, who were virtually invisible and faced protection challenges and more difficult access to basic services. The report focused on a number of specific areas that deserved particular attention, such as the importance of accurate and efficient data collection, the particular situation of internally displaced persons in urban contexts, and the special role that host communities could play. More concerted attention was necessary, Mr. Beyani said, as well as finding lasting solutions to their displacement, including better support to structures of host communities.

Mads Andenas, member of the Working Group on arbitrary detention, presented the report of the Working Group on 6 March and a summary of his comments can be found in press release HRC/12/20.

Georgia, Germany, Maldives and Kenya spoke as concerned countries. The Public Defender of Georgia, the German Institute for Human Rights, and the Kenya National Commission on Human Rights also took the floor.

Georgia, on prison overcrowding, said the Government had noted that this challenge had been the consequence of the zero tolerance policy. Crime rates had decreased as a result of the policy. Germany strove to be a best practice nation and was encouraged by the positive findings of the Working Group. The Maldives was pleased to receive the mission of the Special Rapporteur in order to take stock of efforts made since the 2004 Tsunami and gain ideas and perspectives about how a human rights based approach could help better protect the rights of displaced persons in the context of climate change. The Government of Kenya said it had developed a national policy on internally displaced people, which provided a framework for protection, assistance, and prevention. This allowed for the review of existing laws to deal with impunity.

In the interactive dialogue, speakers said that internally displaced persons outside of camps and in urban areas required specific attention to avoid marginalization, extreme poverty and exploitation. The Special Rapporteur on internally displaced persons was asked to elaborate on how humanitarian agencies could contribute more effectively to the process of data collection. How could a human rights-based approach to registration of internally displaced persons be developed? What type of concrete instrument could be proposed and what role could international and national actors play? Speakers urged the international community to enhance cooperation with regard to climate change induced displacement, migration and planned relocation.

Regarding arbitrary detention, speakers said that the existence of habeas corpus was the best way to combat arbitrary detention and asked the Working Group to explain how it intended to use the new electronic database. Several speakers noted the different legal systems in the world and stressed that habeas corpus came from the common law system and thus, should be studied to determine whether it was applicable to other legal systems. Speakers asked what challenges the Working Group on arbitrary detention faced in collecting information on the thousands of individuals arbitrarily detained, especially when working with government bodies. What kind of follow up action could be envisaged when Governments failed to act upon the Working Group’s recommendations?

Speaking in the interactive dialogue were: Cuba, Austria, France, Pakistan speaking on behalf of the Organization of Islamic Cooperation, European Union, Hungary, Maldives, Switzerland, Norway, Angola, Bangladesh, China, Malaysia, Morocco, Bahrain, Bhutan, Azerbaijan, Kyrgyzstan, United States, Venezuela, Armenia, Greece, Georgia, Algeria, Democratic Republic of the Congo, Uruguay, Sri Lanka, Colombia, and Bolivia.

The following non-governmental organizations also took the floor: France Libertes Fondation Danielle Mitterand, World Federation of Trade Unions, United Schools International, Canners International Permanent Committee, BADIL Resource Center for Palestinian Residency and Refugee Rights, Civicus and Human Rights Advocates.

The Council suspended the interactive dialogue on arbitrary detention and the human rights of internally displaced persons at noon, and will resume it this afternoon at 3 p.m. The Council then immediately commenced the panel discussion on the issue of discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, with an opening statement by the High Commissioner on Human Rights and a video message by Secretary-General Ban Ki-moon.

Documentation

The Council has before it the report of the Special Rapporteur on the human rights of internally displaced persons (A/HRC/19/54)
The Council has before it an addendum to the report of the Special Rapporteur on the human rights of internally displaced persons concerning his mission to the Maldives (A/HRC/19/54/Add.1)
The Council has before it an addendum to the report of the Special Rapporteur on the human rights of internally displaced persons concerning his mission to Kenya (A/HRC/19/54/Add.2)
Presentation by Special Rapporteur on the Human Rights of Internally Displaced Persons

CHALOKA BEYANI, Special Rapporteur on the human rights of internally displaced persons, said that the annual thematic report for 2012 was dedicated to the situation of internally displaced persons living outside of camp settings, who were virtually invisible and faced protection challenges and more difficult access to basic services. Despite the fact that most internally displaced persons lived outside camps, they received inadequate attention from the international community. The report focused on a number of specific areas that deserved particular attention, such as the importance of accurate and efficient data collection, the particular situation of internally displaced persons in urban contexts, and the special role that host communities could play. More concerted attention was necessary, Mr. Beyani said, as well as finding lasting solutions to their displacement, including better support to structures of host communities. Host communities, host families and host Governments were often the first to respond, but were often ill equipped and lacked the support necessary to sustain their assistance activates over the long term. The Special Rapporteur further said that much more could be done to strengthen community-based approaches and support systems; this was particularly important in the context of global trends such as rapid urbanization, and the predicted increase in frequency and intensity of natural disasters due to climate change.

Turning to country visits, Mr. Beyani commended the Maldives for its significant efforts to highlight risks of climate change for internal displacement and to provide assistance to the persons displaced as a result of the 2004 tsunami. Disaster risk reduction and adaptation strategies, although essential, would not be sufficient to prevent internal displacement altogether; the Special Rapporteur encouraged the Maldives to put in place a national policy and legislative framework in line with the Guiding Principles on Internal Displacement and to strengthen the capacity of institutions and relevant national authorities. In Kenya, the Government had taken important steps to address internal displacement in the country, which included legislative measures, support for return and engagement with civil society and international organizations. Mr. Beyani encouraged the Government of Kenya to consolidate and step up those efforts and develop a comprehensive strategy to prevent displacement in the country. In addition to focusing on forced displacement, this strategy should address the complex and root causes of displacement, such as environment, development, and challenges facing pastoralist communities. In closing, the Special Rapporteur said that the focus of one of his next thematic reports would be internally displaced women.

Statements by Concerned Countries

Georgia, speaking as a concerned country, said the report noted that the Working Group had hoped to have the opportunity to visit the regions of Abkhazia and the Tskhinvali region/South Ossetia. However, given that these two regions of Georgia were under foreign military occupation, the proxy regimes were unwilling to grant the Working Group access. The military occupation deprived the Government of Georgia of the ability to provide any international human rights monitoring access to these regions. In response to concerns about low acquittal rates, of all cases considered by courts on merit in 2011, 4.6 per cent ended up in acquittal and an additional 3.8 per cent were terminated at the investigation stage. On prison overcrowding, the Government of Georgia had noted that this challenge had been the consequence of the zero tolerance policy. Crime rates had been significantly reduced. Regarding the qualification of and trust in Legal Aid Service Lawyers, public opinion results indicated that almost 80 per cent of respondents evaluated the level of professionalism of the lawyers as higher than average.

Public Defender of Georgia said the Office of the Public Defender of Georgia was actively engaged in monitoring the application of legal safeguards as well as conditions of detention, making recommendations to relevant government agencies. It was of concern that the current legislation in Georgia reflected disparity in rights accorded to administrative detainees vis-à-vis criminal defendants. Recommendations were directed to penitentiary establishments to ensure further development of infrastructure and create adequate conditions for detainees.

Germany, speaking as concerned country said that Germany strove to be a best practice nation and was encouraged by the positive findings of the Working Group to that effect. The commitment of Germany was reflected in the legislative reforms, collaborative initiatives between police and educational departments, and active engagement from non-governmental organizations. Germany noted the recommendations of the Working Group, some of which stemmed from legal complexities of the German judicial system. Germany would remain consistent in addressing questions raised by the Working Group, including cases where the human rights of individuals were abrogated.

German Institute for Human Rights said that the perspective of an international human rights body was very useful in identifying gaps to ensure the highest levels of human rights protection and this was particularly important in the area of deprivation of liberty. The German Institute for Human Rights supported the Working Group’s call for the establishment of independent commissions to investigate complaints of police misconduct and concurred that subsequent preventive detention must fundamentally differ from criminal detention. The German Institute encouraged the Government to take up observation made by the Working Group about the disproportionate number of detainees of foreign origin in Germany and suggested that the Working Group took up in its future work the situation of persons deprived of their liberty or freedom of movement.

Maldives, speaking as a concerned country, said the Maldives was pleased to receive the mission of the Special Rapporteur on internally displaced persons in order to take stock of efforts made since the 2004 Tsunami and gain ideas and perspectives about how a human rights based approach could help better protect the rights of displaced persons in the context of climate change. The 2004 Tsunami caused untold damage to the Maldives, including to its infrastructure. Since 2004, the Maldives had sought to construct a new disaster reduction strategy, including a wide range of new institutions, policies and programmes. Disasters similar to the one experienced in 2004 would become more common as the effects of climate change intensified. However, without action by the international community, in particular the need to drastically reduce greenhouse gas emissions, the Maldives’ strategies would not be sufficient to prevent internal displacement all together. The mandate holder had concluded that the rights of internally displaced persons should be factored into all these strategies.

Kenya, speaking as a concerned country, said Kenya had taken important steps to address internal displacement despite the challenges faced in solving related issues. The Government had taken measures to address the problem of internally displaced persons in a more structured way in order to ensure that all internally displaced persons were resettled. There was a recognition of the fact that internal displacements also affected other basic rights like the right to housing. The Government had developed a National Policy on Internally Displaced People, which provided a framework for protection, assistance, and prevention. This also allowed for review of existing laws to deal with impunity. The Government prioritized developing a legal and policy framework, strengthening institutions and other mechanisms and implementing policies that nurtured a culture of diversity, national cohesion and integration.

Kenya National Commission on Human Rights said the Government had made commendable efforts in allocating budgetary resources. There was also a draft policy and draft bill on internally displaced persons. However, the Government had been weak in securing durable solutions for internally displaced persons. As the next general election approached, the Commission feared there could be a reoccurrence of displacement.

Interactive Dialogue on Arbitrary detention and on Internally Displaced Persons

Cuba said that the Working Group on arbitrary detention had been following the depravation of liberty of five Cubans in the United States, including a statement made seven years ago that their detention was arbitrary. These five Cuban detainees were part of a United States policy against Cuba and the family members of these individuals appealed to the Government of the United States to release them.

Austria asked the Special Rapporteur on internally displaced persons to elaborate on how humanitarian agencies could contribute more effectively to the process of data collection. Were there good practices in coordination between humanitarian actors, providers of development assistance and local authorities? What challenges had the Working Group on arbitrary detention faced in collecting information on the thousands of individuals arbitrarily detained, especially in working with government bodies.

France said that internally displaced persons outside of camps and in urban areas required specific attention to avoid marginalization, extreme poverty and exploitation. The use of habeas corpus was a fundamental guarantee against the use of arbitrary detention and France called upon all countries to put in place an effective recourse to habeas corpus for detainees. France condemned the 18 year sentence given to the Iranian human rights lawyer Abdolfattah Soltani.

Pakistan, on behalf of the Organization of Islamic Cooperation, asked the Special Rapporteur to share his plans to launch a larger process on the human rights of internally displaced persons living outside designated camps. Primary responsibility for internally displaced persons remained with Governments and all efforts to assist them must be initiated at the request of and in cooperation with the State concerned. The minimum requirements identified by the Working Group that should be reflected in domestic legislation to meet the remedy of habeas corpus needed thorough examination and could be considered incrementally by States.

European Union said that the existence of habeas corpus was the best way to combat arbitrary detention and asked the Working Group to explain how it intended to use the new electronic database. Also, the European Union asked the Special Rapporteur on internally displaced persons how humanitarian agencies could contribute to data collection and how a human rights-based approach to registration of internally displaced persons could be developed. What were the greatest challenges of Kenya with regard to developing a human rights-based approach to effectively address the problems of all groups of internally displaced persons?

Hungary said that many countries were still refusing to follow the recommendations of the Working Group on arbitrary detention and were failing to remedy situations of persons who had been arbitrarily deprived of their liberty. Hungary raised the issue of arbitrary detention of Mr. Toaso, a Hungarian national held in Bolivia for over three years, and urged this country to undertake immediate measures to remedy this situation. Hungary asked the Working Group what kind of follow up action could be envisaged where Governments failed to act upon its recommendations.

Maldives said, regarding the urgent appeal sent by the Working Group, Judge Abdulla Mohamed was released from arbitrary detention in early February. Judge Abdulla had been detained by the army upon the instructions of the then Government. The Government pledged to fully uphold the constitution and the rule of law.

Switzerland said the situation of internally displaced persons living outside camps was still not well known and thus responses had not been well developed. Switzerland asked whether the Special Rapporteur had already identified different potential approaches with respect to operational responses. What type of concrete instruments could be proposed and what role could international and national actors play? Could the Special Rapporteur provide examples of mechanisms for support and how could those be standardized?

Norway appreciated that the Kampala convention, climate change, women and internally displaced persons living outside camps were the priorities of the Special Rapporteur. There should be a focus on internally displaced persons living outside camps and the communities surrounding camps in the humanitarian and human rights communities. Assessment of protection and assessment needs should be given priority. Responses should aim for durable solutions at the outset.

Angola shared the recommendations of the Working Group on arbitrary detention on habeas corpus. Concerning the Working Group’s mention of seven persons arbitrarily detained in Angola, the Government said these individuals had advocated subversive acts against the security and unity of the country and had been put on trial with access to legal defenders and given prison sentences between three and six years in public judgements; therefore these individuals had not been arbitrarily detained.

Bangladesh said that frequent floods and cyclones, prolonged droughts and erosion forced people to move out of their homes in Bangladesh. Scientific studies estimated that a one meter rise in sea level by 2050 would submerge one fifth of Bangladesh, displacing over 20 million people. Bangladesh urged the international community to enhance cooperation with regard to climate change induced displacement, migration and planned relocation.

China said the Government was always against arbitrary detention and citizens could not be arrested without a legal ruling of the People’s Court. There was no question of arbitrary detention in the case of Liu Xiaobo, who was a convicted criminal. China noted the different legal systems in the world and stressed that habeas corpus came from the common law system and said there should be more study to determine if it could be applicable to other legal systems. China appealed to all countries to tackle the root causes of internally displaced persons.

Malaysia said that the Government of Malaysia had been implementing the recommendations of the Working Group on arbitrary detention following its visit to this country in 2010 and had taken steps to repeal detention laws and proclamations of states of emergency in several regions of Malaysia. Malaysia was committed to fulfilling its international commitments and obligations and to working with the Working Group.

Morocco took note of the recommendations of the Working Group on arbitrary detention and informed the Council of national activities in this regard, notably the constitutional reform, which was one of the few constitutions in the world that explicitly criminalized arbitrary detention. Morocco commended the efforts of the Special Rapporteur on internally displaced persons and expressed its approval for conclusions and recommendations contained in the report.

Bahrain said that an independent commission of inquiry had been established to investigate alleged human rights violations in Bahrain. It had been given a wide mandate by the Government and free access to all locations in Bahrain. The conclusion was that indeed human rights violations had been committed in the country. In response, the Government had undertaken a series of measures, such as legal reform, compensation for victims and training of police officers.

Bhutan, with reference to the Working Group on arbitrary detention’s Opinion 40/2011 concerning the case of Mrs. Dechen Wangmo, said that the High Court of Bhutan upheld in 2011 the judgment of the Phuntsholing Dungkhag Court of the imprisonment of 15 years, even though the sentence for treason in Bhutan was life imprisonment. The defendant had appealed this decision. Bhutan reiterated to the Working Group that a fair trial was ensured in accordance with international and domestic laws.

Kyrgyzstan said that finding long-term solutions to the situation of internally displaced persons was a condition for security and stability and to remove the burden on the economy. During the riots of June 2010, 2,000 homes were destroyed, creating many internally displaced persons. The Government adopted a special bill to address their situation. Close cooperation among stakeholders at the international level was necessary, and more data collection on internally displaced persons was needed.

Azerbaijan commended the Special Rapporteur on internally displaced persons for emphasising the importance of the compliance of domestic laws with international obligations, and asked what measures he intended to realise concerning the protection of the rights and freedoms of internally displaced persons? The United Nations High Commissioner for Refugees had noted the efforts made by Azerbaijan for addressing the situation of persons forcibly displaced since the Armenian conflict. The majority of internally displaced persons in Azerbaijan wished to go back to their hometowns currently occupied by Armenia.

United States respectfully disagreed with the Working Group on arbitrary detention’s proposed summary of International Covenant on Civil and Political Rights article 9, paragraph 3 which deviated from the language agreed by States parties, by suggesting the view that any detention must be exceptional and of short duration or would otherwise be considered arbitrary or unjustified. The United Sates agreed that an internally displaced person approach that considered the needs of host families and communities would help lay the groundwork for peace and reconciliation efforts.

Venezuela said an irregularity prohibited Venezuela’s right to respond to the comments on Venezuela made by the Working Group on arbitrary detention in addendum 1. Ex-Judge Afiuni Mora was prosecuted for her implication in the evasion of ex-banker Eligio Cedeno, violating the fundamental norms of the Venezuelan penal code. The Working Group falsified its report in saying ex-Judge Afiuni Mora was a victim of reprisals. This had been rebutted by the person herself.

Armenia said internally displaced persons needed not only the emergency response but more prolonged and systematic attention, ensuring the implementation of basic human rights. In Armenia, 72,000 persons were displaced as a result of military operations by Azerbaijan in the Artsvashen exclave and bombing and shelling of Armenian villages along the border. There were also 30,000 Armenian internally displaced persons in Nagorno Karabakh.

Greece said Greece had faced disproportionate pressure on its migration management system. A new detention facility was completed in Central Macedonia that currently accommodated 118 persons with a capacity for 600. Greece would improve reception conditions and asylum procedures but close cooperation at the European level and with the countries of origin and transit was required.

Georgia said that as a result of the invasion and occupation by the Russian Federation of two regions in Georgia, there were 400,000 persons who had become internally displaced persons, making every eleventh person in the country internally displaced. The condition of internally displaced persons in Georgia should be monitored by external bodies and Georgia appealed to the Special Rapporteur to visit the country.

Algeria said Algeria had experience dealing with internally displaced persons in urban areas and had developed policies to support them including providing protection, economic loans and other services. Arbitrary detention was prohibited in Algeria; remand was 48 hours and specific bodies monitored detention facilities to prevent torture or the violation of the rights of detainees.

Democratic Republic of the Congo was committed to ratifying the African Union Kampala Convention on Internally Displaced Persons. The Ministry of Social Affairs and Humanitarian Action was making many efforts to assist them. The eradication of armed groups was a means to address the issue. With regards to arbitrary detention, the Constitution and the laws of the Democratic Republic of the Congo prohibited arbitrary detention. The fight against impunity was the priority of the Government.

Uruguay said that a broad jurisprudence had been built up by the Working Group on arbitrary detention. The database it had created to facilitate access to victims was a very important tool. Uruguay expressed its concerns with the lack of response of certain countries vis-à-vis urgent appeals made by the Working Group. With regard to internally displaced persons, Uruguay supported the recommendations made by the Special Rapporteur on the need for domestic legislations to comply with international law. Uruguay welcomed the fact that the Human Rights Committee in a general comment 29 said that arbitrary detentions violated some mandatory rules of international human rights law.

Sri Lanka said that after defeating terrorism in 2009, the Government had to face the task of resettling over 290,000 internally displaced persons. A dedicated Ministry had been created, and it developed rapid response and capabilities to deal with sudden urges. The rapid and orderly process of resettlement of internally displaced persons had been commended internationally. It was the firm resolve of the Government to ensure that all those who had been dispossessed were afforded the opportunity to return to the land they occupied.

Colombia attached great importance to following up on the recommendations of Special Procedures, and thus had provided information on the actions the Government of Colombia had put in place. Colombia attached great importance to training in human rights for the police and other security services. Colombia asked whether the Working Group on arbitrary detention had considered the possibility of a study which compiled best practices in the areas of education and capacity building?

Bolivia said there was abundant proof that the person referenced by the Working Group belonged to a mercenary group that aimed to assassinate a democratically-elected president. It was very dangerous that Special Procedures were defending mercenaries. The Working Group should not adopt any measures related to the judiciary and anyone in provisional detention. The Working Group should revise its review of this case.

France Libertes Fondation Danielle Mitterand, speaking in a joint statement, expressed concern about the growing number of arbitrarily detained persons, in the Western Sahara for example. The Kingdom of Morocco had to respect its international obligations and should immediately cease arbitrary arrest and detention.

World Federation of Trade Unions said that in the report by the Working Group on arbitrary detention, reference was made to the release of Rene Gonzalez who must still remain in the United States for three years before he could return to Cuba. Could the Working Group, on its next visit to the United States, address the arbitrary detention of Cuban nationals?

United Schools International said that human rights organizations had listed more than 8,000 Baloch who were said to be missing in Pakistan and the Supreme Court of Pakistan had demanded that the Government of Pakistan produce the missing persons. United Schools International called for the Government of Pakistan to ensure that a full account would be presented to the families of the victims.

Canners International Permanent Committee said that there was a need to send a strong message to terrorist groups engaged in arbitrary detention that they could not engage in such acts with impunity. Children had been kidnapped and kept in chains by the Taliban and women were prevented from leaving their homes which should be considered forms of arbitrary detention.

Badil Ressource Centre for Palestinian Residency and Refugee Rights, speaking in a joint statement, urged the Working Group on arbitrary detention to visit Israel. Israeli authorities continued to arrest hundreds of Palestinians on a monthly basis, many of them in circumstances of arbitrary detention. More than 300 Palestinian were currently held without charges, and the detention orders could be renewed indefinitely.

Civicus said that there were hundreds of political prisoners in the Philippines whose arrest and detention had been conducted to suppress their right to air legitimate grievance over State policy. Trumped up charges were filed against them. Illegal arrests targeted mostly peasants, indigenous people, leaders of the urban poor, and environmental activists. Civicus appealed to the Working Group to investigate those allegations.

Human Rights Advocates said that the privatisation of prisons in the United States was a troubling trend leading to threats on the human rights of detainees. The management of prisons should not be based on the business model. Human Rights Advocates asked the Working Group whether it had undertaken a study on the impact of private prison incentives on the maintenance of human rights and if so, whether it believed that this indicated a growing problem worldwide.

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