Friday, April 11, 2014

Important military justice resolution of the UN General Assembly's Human Rights Council

United Nations                                                                          A/HRC/25/L.5
General Assembly                                                  Distr.: Limited
   20 March 2014

   Original: English
Human Rights Council
Twenty-fifth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development

Belarus,* China, Cuba, Democratic People's Republic of Korea,* Kyrgyzstan,* Russian Federation, Sri Lanka,* Sudan,* Tajikistan,* Venezuela (Bolivarian Republic of): draft resolution [* Non-member State of the Human Rights Council]

25/…  Integrity of the judicial system

The Human Rights Council,

Guided by articles 5, 6, 7, 8, 10 and 11 of the Universal Declaration of Human Rights, articles 2, 4, 6, 7, 10, 14, 15, 16 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action,
Recalling the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention for the Protection of All Persons from Enforced Disappearance,
Recalling also other important documents on the issue of the integrity of the judiciary endorsed by various forums of the United Nations, in particular the Basic Principles on the Independence of the Judiciary, the Basic Principles on the Role of Lawyers, the Guidelines on the Role of Prosecutors, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Safeguards guaranteeing protection of the rights of those facing the death penalty, as well as the Bangalore Principles of Judicial Conduct,
Recalling further its resolution 19/31 of 23 March 2012 and the previous resolutions on the subject of the Commission on Human Rights,
Convinced that the integrity of the judicial system, together with its independence and impartiality, is an essential prerequisite for the protection of human rights and fundamental freedoms, for upholding the rule of law and democracy and ensuring that there is no discrimination in the administration of justice,
Stressing that the integrity of the judiciary should be observed at all times,
1.         Takes note of the report of the Special Rapporteur on the independence of judges and lawyers on the administration of justice through military tribunals submitted to the General Assembly at its sixty-eighth session [A/68/285];
2.         Also takes note of conclusions and recommendations made by the Special Rapporteur in her report, in particular that military tribunals, when they exist, must be an integral part of the general justice system and operate in accordance with human rights standards, including by respecting the right to a fair trial and due process of law guarantees;
3.         Reaffirms the right of everyone to recognition everywhere as a person before the law;
4.         Reiterates that, as declared in article 14 of the International Covenant on Civil and Political Rights, every person is entitled, in full equality, to a fair and public hearing by a competent, independent and impartial tribunal duly established by law, in the determination of his/her rights and obligations and of any criminal charge against him/her, and that he/she is entitled to the presumption of innocence until proved guilty according to law;
5.         Notes that, according to paragraph 5 of the Basic Principles on the Independence of the Judiciary, everyone has the right to be tried by ordinary courts or tribunals using established legal procedures, and that tribunals that do not use duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals;
6.         Underlines that any court trying a person charged with a criminal offence should be competent, independent and impartial;
7.         Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for their legal defence;
8.         Calls upon States to ensure that the principles of equality before the courts and before the law are respected within their judicial systems by, inter alia, providing to those being tried the possibility to examine, or to have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
9.         Reaffirms that every convicted person should have the right to have his/her conviction and sentence reviewed by a tribunal of competent, independent and impartial jurisdiction according to law;
10.       Calls upon States that have military courts or special tribunals for trying criminal offenders to ensure that such bodies are integral part of the general judicial system and that such courts apply procedures that are recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence;
11.       Stresses the importance of developing cooperation between national judicial systems with a view to, inter alia, strengthening the protection of persons deprived of their liberty;
12.       Requests the United Nations High Commissioner for Human Rights to convene prior to the twenty-eighth session of the Human Rights Council an expert consultation with the participation of representatives of States the special procedures, including the Special Rapporteur on the independence of judges and lawyers, the chairperson-rapporteurs of the Working Group on Enforced or Involuntary Disappearances and the Working Group on Arbitrary Detention, the treaty bodies and regional human rights mechanisms, as well as non-governmental organizations and national human rights institutions for an exchange of views on human rights considerations relating to the issues of administration of justice through military tribunals and the role of the integral judicial system in combating human rights violations;
13.       Also requests the High Commissioner to provide all the assistance and support necessary for the expert consultation;
14.       Further requests the High Commissioner to present a summary of the discussions held during the expert consultation to the Human Rights Council at its twenty-eighth session;
15.       Invites the Special Rapporteur on the independence of judges and lawyers to take full account of the present resolution in the discharge of her mandate;
16.       Decides to continue consideration of this issue in accordance with its annual programme of work.

Hon. Paula G. Schriefer
P.S. The United States opposed this resolution. In doing so, Deputy Assistant Secretary of State Paula G. Schriefer stated, among other things, that
"we must note that we are surprised to see this Member State [Russia] sponsor a resolution touting the rule of law immediately following its blatant violation of international law and of Ukrainian sovereignty and territorial integrity."
The Secretariat estimated that the activities proposed in the resolution, which was approved on March 27, 2014, would cost $291,700.

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