Human rights and WHISTLEBLOWERS – Alfred de Zayas

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Human Rights Council side-event  

Monday 23 March 2015

Your Excellency, distinguished Panelists, ladies and gentlemen

Every functioning democracy depends of transparent and accountable governance. Undoubtedly secrecy is an enemy of democracy, and when governments conceal important information from the public, when there is no consultation and no public participation in decision-making, the legitimacy of government actions is put into question.

Over the past ten years revelations by whistleblowers have shaken the confidence of citizens and have uncovered a dangerous pattern of arbitrariness and impunity. Documents reveal a complex system of concealment and manipulation in which dozens of governments have participated or connived with, in spite of erga omnes obligations under international law. Documents manifest a widespread animus to place perceived governmental policies above international law and above human rights law. Law is invoked selectively and applied à la carte. Double-standards are the rule, not the exception. Some would call this a conspiracy against democracy.

Secrecy has concealed the commission of war crimes and crimes against humanity, rendition, disappearances, torture, illegal mass-surveillance of citizens without judicial control or accountability, the breach of lawyer-client privilege and denial of due process. Whistleblowers have also thrown light on secret ongoing negotiations of comprehensive trade and investment agreements that compromise the very concept of State sovereignty and circumvent the principle of non-intervention into the domestic affairs of other States, in contravention of the letter and spirit of the UN Charter and countless General Assembly resolutions including 2625, the Friendly Relations Resolution. I am referring to the secrecy surrounding the elaboration of bilateral trade agreements and TTIP, TPP, TISA as well.

Disclosures by whistleblowers raise many issues concerning international humanitarian law, notably Geneva Red Cross Conventions III and IV of 1949 and its 1977 Additional Protocols. They also raise issues concerning civil and political rights, including the right of self-determination of peoples, the right to life, the right not to be subjected to torture or cruel, inhuman or degrading treatment, the right to security of person, the prohibition of arbitrary detention, the right to freedom of movement, the right to independent tribunals and due process of law, the right to privacy and family life, the freedom of conviction, opinion and expression, the rights of the child, the right to participate in the conduct of public affairs, the right to non-discrimination, the right of minorities, the right to property, and the right to one’s homeland, that is, the right not to be subjected to forced displacement.

Disclosures by whistleblowers also raise issues of public interest concerning economic, social and cultural rights, including the right to work, the right to health, the right to education, the right to housing, to a safe environment, the right to water.

Disclosures by whistleblowers impact the work of the Human Rights Council, the UPR procedure and the Special Procedures. All of us are concerned, including the special rapporteurs on extra-judicial executions, on torture, on terrorism, on freedom of opinion and expression, on freedom of peaceful assembly and association, on the independence of judges and lawyers, on human rights defenders, on international order. Also concerned are the working group on Disappearances, on Arbitrary Detention, on Business and Human Rights.

Other important mechanisms have been seized of these issues – including treaty bodies such as the Human Rights Committee, the Committee on Economic Social and Cultural Rights, the Committee on the Elimination of all forms of Racial Discrimination and the Committee against Torture. These Committees have individual complaints procedures that can and should be engaged to test the legality of certain governmental measures, particularly those in connection with the so-called war against terrorism. These Committees also have inter-State complaints procedures that although promising, are yet to be tested. They also have a procedure of periodic examination of State reports, which conclude with concrete observations and recommendations.

How have governments reacted to the revelations by the whistleblowers? It is worrisome and distressing to note that instead of opening thorough investigations into allegations of war crimes, extra-judicial executions, torture, renditions, indefinite detention, and corruption – and instead of prosecuting those responsible, not merely the lowly soldiers or those who have simply carried out orders, but those who have given the orders, established the policies, or given green light to the use of torture methods

– it is the whistleblowers who are being defamed, persecuted, mobbed, threatened and prosecuted. The age-old practice of blaming the messenger is alive and well in the 21st century.

This again raises another set of concerns, this time with respect to the rule of law obligations of government vis à vis the populations living under their jurisdictions, the imperative to respect the right to dissent and the right to peaceful assembly, the role of the media as a watch dog over democracy, the duty of journalists not to be propagandists for governments, but to practice investigative journalism so as to ferret out abuse and corruption.

I am particularly concerned by the realization that the right to privacy of billions of human beings has been violated and is being violated by an unprecedented campaign of digital and other surveillance without court order. I am shocked that notwithstanding revelations concerning this thoroughly illegal and unconstitutional practice, that the system has not been dismantled and that this kind of Orwellian surveillance continues.

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In my years as professor, I have had the opportunity to offer a masters course on “literature and politics” in which I have drawn lessons from Machiavelli’s The Prince, Thomas More’s Utopia, Harriet Beecher Stowe’s Uncle Tom’s Cabin and more recent literature. Most if not all of you have read the world war I novel All quiet on the Western Front, which so well describes how the young German soldier Paul Bäumer, a victim of war propaganda, who initially thought he was doing the right thing, whose sense of good and bad was abused by government indoctrination, gradually becomes bitter and disenchanted by the lies, pretence and injustices. His is a bitter invective against sentimental, romantic ideals of warfare. The narrative by Erich Maria Remarque demonstrates the gradual realization by Paul Bäumer of the senselessness of blindly following orders – this is the beginning of a consciousness of right and wrong and also a principal motivation of gradual independent thinking, attempts to change things from the inside, realization of the futility of such attempts at reform, ultimately triggering whistleblowing as a heartrending call for help.

The Oscar-winning documentary Citizenfour, shown in the Genera Human Rights Film Festival, demonstrates that civil society has heard this piercing call for help.

But the vehement persecution of whistleblowers is not abating. There is a governmental narrative, reminiscent of Nazi times, that soldiers have to obey orders. Period. Notwithstanding the Nuremberg Principles, the Statute of Rome, the International Covenant on Civil and Political Rights and countless resolutions by the Human Rights Council and General Assembly.

The narrative of patriotism continues to colour the discussion. Even in democratic countries a great many persons – young and old – repeat the formula “my country right or wrong” and accuse whistleblowers of being unpatriotic – or worse, spies and traitors — threatening them with social ostracism and criminal prosecution. But in human rights terms, is it not more appropriate to perceive whistleblowers as the real patriots?

– those who want to be proud of their countries and to combat abuses, to make things right, to strive for justice? Indeed, patriotism is not war-mongering but actively waging peace. It is not expansionism, or looking for what land to invade next. It does not strive to subjugate others or take advantage of them, it does not aim at land-grab or resource-grab or other forms of economic exploitation and financial neo-colonialism. Only chauvinism takes pleasure in exploiting others and doing injustice to them. Patriotism is consciousness of the noblest potential of one’s homeland and the will proactively to advance this potential. It means working for social justice and against privilege and corruption.

The former United Nations special rapporteur on freedom of expression Frank La Rue said in 2014 that whistleblowers are not only relevant for the news they carry, but because they mobilize the people. He stressed that the right to truth is not only related to individual events, but is necessary for salvaging the social fibre of society. He observed: “The people always have a right to know what is being done in their name… This is why we call it democracy. Otherwise, it wouldn’t be the government of the people by the people” unquote

In 2013 our former High Commissioner for Human Rights Navi Pillay issued a press release stating that: “National legal systems must ensure that there are adequate avenues for individuals disclosing violations of human rights to express their concern without fear of reprisals.” Referring to the revelations of Edward Snowden she emphasized the need to protect persons disclosing information on matters that have implications for human rights, as well as the importance of ensuring respect for the right to privacy,” unquote.

Following Navi Pillays’s lead, civil society has taken up the issue and countless non-governmental organizations have organized and are continuing to organize petition campaigns to demand governmental transparency and accountability and to condemn the prevailing impunity of governmental officials implicated in crimes revealed by whistleblowers.

We all know that secrecy encourages an atmosphere of impunity. Although there are legitimate national security reasons for secrecy, such reasons do not provide for blanket secrecy beyond democratic control.

And while there is a huge governmental effort to conceal information from the public, there is another just as huge governmental effort to find out what people are thinking and to intimidate civil society into self-censorship. Another book you all have read – George Orwell’s prophetic 1984 dystopia – shows us how persons are reduced to robots through the denial of their right to identity and its corollary, the right to privacy. We meet Winston Smith, an employee at the Ministry of Truth of Oceania, the totalitarian superpower. Winston keeps a rebellious diary, which he endeavours to write when he is not being watched by the ever-present television surveillance, he seeks the love of Julia, a machine operator in the Fiction Department. He meets O’Brien, a member of the Brotherhood, in whom he confides, not knowing that O’Brien is a member of the Thought Police. Winston is apprehended and sent to Room 101, where a person is faced with his greatest fear, in Winston’s case: Rats. Winston is psychologically broken and goes back to being a number. He learns to live with the Party and to love Big Brother.

Ladies and gentlemen,

Whistleblowers are there to rescue us from Big Brother. To that end we will hear more from the members of this Panel. I would like to conclude by appealing to civil society to show solidarity with whistleblowers and to stand up to defend democracy. I appeal the Parliaments of all democratic States to reclaim their authority and exercise closer control over governments that have lost all sense for proportions. I appeal to the Human Rights Council to vindicate the right to identity, the right to privacy, the right to know, the right to truth, the right to human dignity, for indeed human dignity is not in consumer goods, but in intellectual freedom and social justice.

I endorse the proposal that the Human Rights Council task its Advisory Committee with a study on concrete measures to protect whistleblowers who disclose information which is relevant to the promotion and protection of human rights. Finally I also endorse the proposal to establish a new Rapporteurship on the Right to Privacy in the Digital Age.

I thank you for your attention.

Professor Alfred de Zayas

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