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Race, Racism and the Law 
Speaking Truth to Power!

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Criminal Justice and Judicial Systems

NGO Forum, World Conference Against Racism, Racial Discrimination
Xenophobia and Related Intolerance, Durban, South Africa, August 27-Sept 1, 2001

This page is part of much larger document. Please be sure to read the Overview, the Declaration-Guiding Principles, Programme of Action-Guiding Principles, and Programme of Action - Legal Measures which provide the context for understanding this page. Click here to Download Word Document.

 

 

Declaration

91. We recognize the obligations of governments to remove or amend in accordance with the International Convention on the Elimination of All Forms of Discrimination all forms of legislation, policies or practices that have the purpose or effect of discriminating against any person on the basis of race, religion, nationality, language, caste, ethnicity, or minority or refugee status, through the full integration of international instruments relevant to racism into national laws, regulations and administrative practices, and the identification and elimination at the national and local level of institutionalized racism existing in the policies, procedures, practices and culture of public or private criminal justice institutions.

92. We recognize the value and importance of the binding General Recommendations issued by CERD that CERD consider issuing a separate General Recommendation interpreting racial discrimination as constituting "degrading treatment" within the meaning of article 3 of European Charter of Human Rights as interpreted by the European Court of Human Rights.

93. We recognize the need to give special consideration to the concerns and needs of women, young people, persons of African descent, Indigenous Peoples, lesbian, gay, bisexual and transgendered persons, disabled persons, the impoverished, and persons living in situations or countries of conflict, who are affected by the criminal justice system, as well as to the incarceration and withholding of legal rights and services to asylum seekers and refugees.

94. We recognize the obligation to have effective remedies, including remedies against government agencies and officers, for victims of racial and other forms of discrimination who have been disparately impacted upon, disproportionately targeted, prosecuted and sentenced due to their race, nationality, ethnic background, religious beliefs or other differences.

 

Programme of Action

253. Recognize, in accordance with international law and with the Statute of the International Criminal Court, that the persecution of any identifiable group on political, racial, national, ethnic caste, descent and work, cultural, religious, gender, disability or other grounds constitutes crimes against humanity and in view of the importance of combating impunity, sign and ratify, if they have not yet done so, the Statute of the International Criminal Court. At the same time, we urge all States and governments to speedily conduct at national level, investigations and prosecutions of war crimes in compliance with their international obligations

254. Abolish the death penalty, giving particular consideration to the fact that throughout the world it is used disproportionately against people belonging to racial, ethnic, national minorities and Indigenous Peoples.

255. To ensure that persons who are affected by racism, racist practices, xenophobia and related intolerance have access to an effective criminal defence, which includes the explanation of reasons for the arrest, detention, legal, proceedings and charges, interpretation services, free of charge and at all stages of the criminal process, and also provides access to diplomatic representatives for Foreign nationals.

256. To ensure the eradication of impunity within the criminal justice system, particularly law enforcement, judicial and correctional personnel, and in the public sector, through the establishment of internal and external independent complaints, monitoring mechanisms and investigations, and the imposition of disciplinary and criminal sanctions for transgressions.

257. We call upon States to ensure that selection processes for the appointment of Judges take into account persons previously excluded on the grounds of race, gender, ethnicity and colour, particularly those impacted by the intersectionality of these grounds. Selection processes should also take into account that persons appointed should be independent of political and executive, economical or social influence.

258. We call upon States to revise and adopt laws and procedures regarding the manner in which the judiciary operates, to ensure that judges act in an independent and unbiased fashion, so as to apply the law equally, fairly and justly to all individuals and groups, particularly those who are without any political, social or economic power, and discriminated on grounds of racism, gender, racial discrimination, xenophobia and related intolerance.

259. To ensure that effective mechanisms, including data collection, are established to prevent the racial profiling of victims of racism, racial discrimination, xenophobia and related intolerance, including a clear prohibition of reliance on race ethnicity or other group identity, by by law enforcement, prosecutorial or judicial officers, through a review of laws and policies, to ensure that they are not discriminatory in purpose or impact, particularly in prisons and other places of detention.

260. To ensure that States enact legislation to prevent the practice of treating minors as adults within the criminal justice system, as this affects a disproportionately large number of persons belonging to marginalized groups, particularly in the area of sentencing.

261. To develop policies and practices that prohibit the use of excessive force by law enforcement officers, provide increased sanctions for use of excessive force motivated by racial or other discrimination, and to require special training programs on non-lethal and proportionate levels of force and alternatives to the use of force for law enforcement officers.

262. To ensure strict and regular monitoring, inspection and control mechanisms in all places of detention, including private and alternative prisons, concrete and immediate steps to end the exploitation of the labour of incarcerated people, full access to incarcerated poputlations to educational programmes and facilities and timely and appropriate preventative, diagnostic and curative physical and mental health services, and programs which focus specifically on the reintegration of offenders into their communities after their release from prison.

263. Require that all states ensure that Public officials, criminal justice and law enforcement agencies act in a non-discriminatory manner and that specific training programs on anti-racist, anti-xenophobic and gender sensitive practices are designed for such officials and agencies. Such officials and agencies should be required to publicly disavow hate speech, and conduct that foments acts of racism, racial discrimination, xenophobia and related intolerance.

264. To ensure, that States comply with article 10 of the UN Convention against Torture (CAT), by ensuring that educational measures explicitly address the implications of the fourth purpose contained in the definition of torture ("discrimination of any kind") found in article 1 of the Convention, thus helping to prevent torture, ill-treatment and any kind of violence against disproportionately targeted groups and individuals.

265. To ensure that asylum seekers are not subjected to criminal or other punishment on the basis of any illegal entry or presence, that detention of asylum seekers is used only as a measure of last resort (except that unaccompanied minors should not be detained in any circumstances), subject to periodic judicial review, with a maximum duration specified in national law, with guarantee for the right of appeal against this detention, and with strict and regular inspection by independent bodies. If detained, asylum seekers should be held in special immigration detention centres, in conditions appropriate to their status and in accordance with international standards, and not with perons charged with or convicted of criminal offences.

266. To ensure that special attention is given to the rights of refugees and asylum seekers to adequate and effective representation and prompt judicial proceedings, and that groups, including non citizens such as documented or undocumented migrants, asylum seekers and refugees, are provided necessary information and legal assistance in the event of torture, ill treatment or any kind of violence, perpetrated on the basis of race, racial discrimination, xenophobia and related intolerance.

 
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Copyright @ 1997, 1998, 1999, 2001. Vernellia R. Randall
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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).