Serious new facts have surfaced about UK torture in Northern Ireland in early seventies

I led an Amnesty International delegation to Belfast in 1971 to investigate allegations we had received of internees subjected to brutal physical interrogation methods combined with measures of ‘sensory deprivation’. Those were evidently troubled times and the UK authorities were clearly not interested in any independent investigation. They had themselves issued whitewash reports and Prime Minister Heath was reported to have dismissed Amnesty International in private meetings as a “disreputable organization”.

We were however determined to find the truth regardless of whether the facts would please the authorities or not. I do still remember that trip in the bleak, tense winter of December 1971. Among those who gave testimonies to there were also a number of ex-internees who one by one described what they had gone through. They had been severely beaten during arrest and transport. Some of them had still bruises on their bodies, one of them was black and blue over his buttock and one thigh which our medical expert found consistent with his complaint about repeated, brutal beatings. Moreover, several of those arrested had gone through a treatment which brought them to a mental breakdown.

The breakdowns had come through the combination of being forced to stand spread-eagled against a wall for many long hours, being hooded and thereby unprepared for the sudden beatings, forced to hear one hissing noise which drowned all other sounds, be deprived of food and water and prevented from sleeping.

It was evident to us that these were very grave human rights violations, indeed amounting to torture. And that is what our report and statements set out. We documented the use of the now infamous ‘five techniques’ which were combined with physical assaults and death threats to the men.

The Irish government took a bold and unprecedented step at the time and complained to the European Commission of Human Rights that the UK’s actions amounted to torture. I was deeply disappointed when the European Court of Human Rights concluded eventually in 1978 that the treatment of detainees in Northern Ireland under emergency internment powers did not amount to torture. Similar methods have since then been used against detainees the world over, for instance in the “enhanced interrogation” during the US ‘war on terror’. In other words, the ruling of the European Court had serious consequences.

Imagine my surprise when I learned recently that Irish television RTÉ had broadcast a programme which had uncovered documents strongly suggesting that the UK government had in fact misled the Strasbourg Court. The RTÉ programme — an exemplary piece of public service investigative broadcasting — found documents showing that the British government knew that its core argument, that the effects of techniques used on the “hooded men” were not severe or long-lasting, was untrue.

In fact it suggests that the UK government knew then of the severe, long-term psychological and physical effects of the ‘five techniques’, and in fact considered them as ‘torture’. RTÉ has also unearthed a previously unseen letter which shows that UK cabinet ministers took a ‘political decision’ to permit the use of the ‘five techniques’ in Northern Ireland.

If substantiated, this was a grave, additional injustice to the victims and also promoted impunity then – and for those who have used such methods in other situations in the last four decades.

The UK government, as a signatory of the UN Convention against Torture and the European Convention on Human Rights, must ensure that facts be clarified in this critical case and remedial action be taken.

In the years since then, I have served in a number of other posts traveling the length and breadth of Europe to investigate and document human rights violations. When I served as Commissioner of Human Rights for the Council of Europe it became apparent that European states had cooperated with the CIA in its rendition and secret detention programme. I argued then that the entire European system of human rights protection was undermined by allowing the truth about torture to remain in the dark.

That holds certainly true for the case of hooded men. If there is one thing I have learned, time does not heal all wounds if the truth doesn’t come out and justice is denied.

Family reunification is a human right

A restrictive refugee policy in European countries has undermined the principle that separated families should be allowed to reunify. Where refugees already reside in a country, governments try to limit the arrival of their close relatives. The result is unnecessary human suffering especially in those cases where dependent family members have been kept apart. This policy violates the right to family reunification stipulated in international human rights standards.

In a number of declarations, the world community has agreed that the family is the fundamental group unit in society. From this follows the right to family unity which in turn places certain obligations on state authorities. For refugees, this right is particularly crucial since they are often forced to leave family members behind when fleeing.

Prolonged separation from close family members can cause severe stress and prevent a normal life for both those who have left and those who remain at home. Indeed, many refugees and other migrants live isolated lives, cut off from normal social relationships and, as a consequence, they face even more difficulties in integrating into their new environment. Those left behind – often women and children – tend to be vulnerable emotionally, economically and often physically.

Though states must be able to retain their right to regulate and control the entry of non-nationals, there has been a progressive development in international law as regards the right to family reunification across borders. Nowadays, respect of the right to family life requires not only that states refrain from direct action which would split families, but also that measures be taken to reunite separated family members when they are unable to enjoy the right to family unity somewhere else.

This development started when the 1951 UN Convention Relating to the Status of Refugees was adopted. The diplomatic conference stated in a final act that the unity of the family was an “essential right” and recommended that governments take the necessary measures to protect the refugee’s family especially to:

• ensure that the unity of the refugee’s family is maintained, particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country; and

• protect refugees who are minors, in particular unaccompanied children and girls with special reference to guardianship and adoption.

The Executive Committee of the UN High Commissioner for Refugees has since adopted several authoritative statements promoting family reunification as both a human right and as a humanitarian principle. The agency has encouraged governments to adopt legislation to implement “a right to family unity for all refugees, taking into account the human rights of the refugees and their families”.

In the Council of Europe, both the Committee of Ministers and the Parliamentary Assembly have used similar language to the UNHCR in several recommendations and resolutions. Notions of “family” and “family reunification” also enjoy protection under the European Convention on Human Rights and the European Social Charter.
The UN Convention on the Rights of the Child stipulates that children should not be separated from their parents against their will (Article 9), and that governments should deal with cases of family reunification across borders “in a positive, humane and expeditious manner” (Article 10).

However, in practice, government policies have not always been positive, humane and expeditious – either for children or for adults. A number of governments have chosen to interpret their obligations narrowly, and increasingly so. Several define “family” as including only parents and their immediate children. This ignores the obvious fact that the shape of the core family differs depending on different traditions and situations.

In war-torn and HIV-affected areas, for instance, it is not unusual for orphaned children to be cared for by other relatives. Elsewhere, it is often grandparents, or other members of the extended family, who depend on younger family members. A positive and humane policy should consider the family pattern in each specific case.

Some governments argue that family unity could be achieved if the newcomers would go back to their family members in the country of origin: the implied message is that the family separation is self-inflicted. However, many cannot go back home for the very same reasons which forced them to flee. This inability to return applies not only to those granted asylum, but also to those seeking such status, and indeed to many of those with temporary or subsidiary protection. Again, a positive and humane policy would allow for individual cases to be considered on their own merits.

Other obstacles are frequently placed in the way of family reunification. For example, reunification is sometimes refused because of strict requirements imposed on individuals to be financially self-supporting, and those receiving social assistance are often barred from acting as sponsors. Yet this policy ignores the reality in many cases. It certainly ignores the fact that – as family unification is a human right – the poverty of the resident family member should not hinder an application.

Official attitudes to requests for family reunification across borders have been strikingly negative. The response has often been marked by suspicion – as if applicants want to deceive the authorities and to obtain undeserved favours. There have, of course, been cases where people have provided inaccurate information in order to secure entry for others, but it is a great mistake to allow such cases to dictate overall policy.

Significantly, DNA testing has been introduced in several countries as a key means of assisting government decision-making. The purpose is to verify whether the applicant really is either the child or the parent of the resident family member. By definition, this method excludes consideration being given to any other relations, for instance adopted children. Nor is this procedure adjusted to reflect the actual family pattern in those cultures from which many refugees fleeing to Europe come.

The UN High Commissioner for Refugees has also rightly warned that DNA testing can have serious implications for the right to privacy. Though voluntary testing can be acceptable in certain circumstances in order to prevent fraud, this should be carefully regulated, and the sharing of any data thus obtained should be bound by principles of confidentiality. When testing is considered necessary, the costs should be borne by the requesting authorities.

Some governments have adopted even more restrictive rules in response to the popular public perception that foreigners constitute a danger. Some years ago a decision was taken in Denmark that a person must be a citizen of the country for 28 years before obtaining the right for his or her foreign partner to secure a residence permit. This clearly discriminates against those who have not lived in the country since childhood. At that time the Danish Government also introduced a “points system” to the effect that less educated relatives would be further disadvantaged when seeking family reunification.

The administrative processing of applications is far from “expeditious” in many countries. In fact, the process is often both extremely slow and unnecessarily bureaucratic. Some countries require that applications be made at the embassies or consulates in the country of origin which is not always easy or even possible. In other cases, the authorities request documents or information offering hard proof of various facts which can be very difficult for applicants to obtain from the authorities in their countries of origin. Requirements to provide evidentiary proof of family relationships for the purpose of reunification have therefore to be realistic.

Those who have seen the pain suffered by separated families realise how much of a mistake it is to deny the right to family unity – for the refugees, for the family members left behind, and indeed for the host country. Facilitating family reunification helps to ensure the physical care, protection, emotional well-being and often also the economic self-sufficiency of refugee communities. This is in the interests of everyone.

UN Child Convention 25 years – what remains to do?

Twenty-five years have passed since the UN Convention on the Rights of the Child was adopted by the General Assembly. It has since become one of the most well-known and broadly supported international human rights treaties.

All the states in the world – except the United States and the war-torn Somalia and South Sudan – have ratified it and thereby legally bound themselves to implement its provisions.

As a result, the situation of children has been placed higher on the political agenda. Yet, the actual implementation of the convention has been less effective than we anticipated. The main reason for this failure is the absence of a systematic, comprehensive approach to children’s rights as a political priority.

Although children make up a large section of the population and constitute the future of society (in more ways than one), their concerns are seldom given top priority in politics. Ministers responsible for children’s affairs tend to be junior and are kept outside the inner circle of power. Children’s concerns are often seen as non-political, and sometimes trivial. The image of politicians on the campaign trail kissing babies has become symbolic of this trivialisation.

Gestures are not enough to meet the requirements of the convention – what is needed is serious political discussion and real change. Improvement in the status of, and conditions for, children are of course the very purpose of the convention. With ratification, a state commits itself to respecting the principles and provisions of the convention, and transforming that commitment into a reality for all children.

One possible reason for the delay in implementing the convention could be the decision makers’ lack of understanding or acceptance of the obligations arising from it. They appear not always to have made the distinction between charity and a rights-based approach.

Children in need, just like persons with disabilities, have long been the favoured “objects” of charity. They have been given support, not as a matter of right, but because people have felt sympathy for them. This is one of the attitudes that the convention challenges.

The convention sees the child as a subject. He or she has the right to schooling, health care and an adequate standard of living, as well as the right to be heard and to have his or her views respected. This goes as much for the cute toddler as for the problematic teenager.
The very notion that children have rights is a radical one, totally alien to the old-fashioned belief that children are only entitled to rights on their 18th birthday, and that their parents hold these rights until that date.

That children and their interests should be given priority is another important message in the convention. It states as an overarching principle that “the best interests of the child shall be a primary consideration” in all actions concerning them, whether those actions were taken by local or national authorities, parliaments, courts, or social welfare institutions, and including those run on a private basis (Article 3).

The convention also requires concrete steps to be taken to guarantee genuine implementation. It prescribes that governments must take legal, administrative and other measures and use “the maximum extent of their available resources” to ensure that children can enjoy their rights (Article 4).

Many of us who took part in the drafting of the convention were aware of the risk that the final text would be seen by some as an idealistic wish list rather than as a definition of the human rights of children. The challenge was to give substance to the obligations which would follow from a rights approach.

The UN Committee on the Rights of the Child, the elected body which monitors the application of the convention, has attached a great deal of importance to the methods and means used for its implementation. Based on that experience, and suggestions from UNICEF, non-governmental organisations and governments, one could develop a checklist for systematic measures that governments should take if they are serious about their obligations to children. These measures include the need to:

• develop a comprehensive national agenda for children;

• ensure that all legislation is fully compatible with children’s rights which requires incorporating the convention into domestic law and practice, as well as ensuring that its principles and provisions take precedence in cases of conflict with any national legislation;

• make children visible in the process of governmental policy development by introducing child impact assessments;

• carry out adequate budget analysis to determine the proportion of public funds spent on children, and to ensure the effective use of all such resources;

• establish permanent bodies or mechanisms throughout all sectors of government (including local authorities) to promote co-ordination, monitoring and evaluation of activities in furtherance of the convention;

• ensure that adequate data is collected and used to constantly improve the situation of all children in each jurisdiction;

• raise awareness and disseminate information on children’s rights and what they mean in reality, including through training for all those in government – especially, but not exclusively, for those whose work relates to children or who work directly with children;

• involve children themselves, as well as civil society, in the process of implementation and awareness-raising;

• develop independent statutory offices for children – a children’s ombudsman, commissioner or other similar institution – to promote children’s rights; and

• give children’s rights priority in all forms of international co-operation, including programmes for technical assistance.

These 10 recommendations are mutually reinforcing and have several characteristics in common. Each relies on public debate and transparent procedures. Each advocates a “first call” for children, while recognising the need for co-ordinated efforts to ensure that children’s rights are incorporated into the existing administrative structures, and they require children themselves to take part in the process.

The basic idea is that children’s issues be moved from the exclusive realm of charity on to the political agenda – and placed high thereon.

Several European governments have taken action on these recommendations, for instance, through adopting a national strategy, improving their internal co-ordination around children’s issues, developing good data collection systems and appointing an ombudsman for children (either within the office of the general ombudsman or as a separate body).

Yet, there are glaring gaps which appear to indicate that governments are still not being sufficiently serious. This is particularly reflected in the continued lack of child protection.

Too little is being done to give children with disabilities an opportunity for good schooling; children within minorities, not least the Roma, are disadvantaged in most spheres of life; children in conflict with the law are too often detained; children among irregular migrants are vulnerable and suffer exploitation; and refugee children are not well treated. Corporal punishment is retained in about half of the countries in Europe and some children also face violence at school. Justice systems, schools and cities are not yet child-friendly.

One reason why powerful politicians tend to issue rhetorical statements rather than develop concrete children’s programmes is probably because many of them lead a life which isolates them from a child’s everyday reality. Yet the opinions of children themselves are not taken seriously, and their parents or guardians are also accorded little time or opportunity to present their views.

In fact, the genuineness of political commitment is most clearly tested in budget discussions. In the current austerity programmes there have been budget cuts in several countries which have affected children and services directed at them – either directly in the state budget, or via reduced support to local authorities.

Funds for education, health care and social benefits for vulnerable groups have been significantly reduced in a number of countries, and this is before governments start paying back the debts incurred when public money was used to meet the financial crisis and rescue the banking system.

This has provoked a widespread discussion on the meaning to be accorded to the UN convention’s commitment that “the maximum extent” of available resources go to children. Inevitably, children’s interests will also suffer when society as a whole is forced to tighten its belt. However, it is clearly against the very spirit of the convention if decisions are made which would penalise those who are already vulnerable, and so increase existing inequalities. In a time of economic stringency, the human rights principle of non-regression is an important one for the authorities to bear in mind as they choose which government programmes to maintain or to abandon.

It is now particularly urgent that the short and long-term economic impact on children be analysed before budgets are finalised. In Europe we already have a serious problem of child poverty – it is appallingly widespread in some countries, and a large number of children are disadvantaged from the outset. An economic crisis is hardly an argument for not addressing child poverty – on the contrary, it this is when it is even more urgent to do so.

Resource limitations cannot be seen as an excuse by states for ignoring their obligations to protect children’s rights or for delaying the implementation of measures. The greater the difficulty, the more reason there is to act with a clear political strategy so as to address the problems in a systematic fashion.

Indeed, it is particularly in times of crisis that the state has to reaffirm its commitment and to fully respect the rights of children – all children.

Action Plans for Roma and Sinti must be implemented

Roma and Sinti people are still suffering systematic discrimination in large parts of Europe. They are denied basic human rights and victims of flagrant racism. As a consequence, they remain far behind others in society in terms of educational attainment, employment, housing and health standards. They have no proportional representation in public and political life.

In social terms they tend to be marginalised. Indeed, a number of them are stateless or do not even have documents to prove their identity. When attempting to migrate they are discriminated against and often refused entry or expelled. Their exclusion from society feeds isolationism among the Roma and Sinti communities which in turn encourages prejudice against them among xenophobes. More effort is needed to break this vicious cycle.

This is an enormous challenge.

Xenophobic and extreme nationalistic tendencies in today’s Europe have worsened the situation for the Roma and Sinti people. They are not seldom targeted in hate propaganda by neo-fascists and other extremists; they have suffered brutal hate crimes which have not even spared children. Many assaults are not reported to the law enforcement due to lack of trust in the police.

The problems are not new and have been on the agenda of OSCE and several other international bodies for a number of years. But conferences, drafting of plans and other investments of time and money have produced little results. Inequalities seem only to increase. Frustration is widespread, not least among the Roma and Sinti themselves.

OSCE:s Action Plan on Improving the Situation of Roma and Sinti in the OSCE Area was adopted already 2003. Five years later its implementation was formally evaluated. Though some progress was noted – not least the fact that Member States had adopted action plans for integration of these minorities and that anti-discrimination legislation had been adopted – the overwhelming picture was that the concrete situation for Roma and Sinti had not really improved.

Among the problems highlighted in this evaluation report 2008 were continued forced evictions; lack of secure land tenure; inadequate alternative housing; lack of civil and voter registration; and inability of Roma and Sinti children to attend school.

Agreed plans had had little influence on local authorities. On that level they were received with apathy and neglect. Generally, there was a lack of institutional mechanisms for sustainable progress. Said the implementation report then.

Another six years have passed; my clear impression is that these problems, and others, remain.

There should no longer be any confusion on what ought to be done. The analysis of the key obstacles is clear. The tools available to tackle the injustices are identified.

For instance, we know that education is absolutely crucial in order to break the vicious cycle. We also know that pre-schooling is a way to prepare for successful learning and avoiding drop-outs and other school failures.

We have decided that the automatic placement of Roma children in special, separate classes is wrong and should be stopped. We know that it is important for the poor minority children that they can have free breakfast or lunch in school. We have understood the value of school mediators or personnel with minority background involved in the school system. We sense the need for further scholarships to allow poor pupils to continue their education.

We know also the chain effects. If a child does not receive sufficient schooling she or he will be disadvantaged in the job market. If they cannot get a job they cannot improve their housing situation. Poor housing conditions in turn affect one’s health and also the education of the next generation of children.

Consequently we have also understood the importance of adult education as well; too many parents cannot read and write.

We do understand the crucial importance of decent housing standards. A great number of Roma and Sinti live in unhealthy, slum-like environments – in many cases without electricity, water and acceptable sanitation. Their tenure rights are in many cases questioned and evictions continue without alternatives having been offered. This is another vicious cycle.

The same goes for the health care situation. We know that the expected life length of people of this minority is considerably shorter than for the majority population. We understand that this is because of illnesses and diseases which have not been cured. Roma and Sinti are disadvantaged in the health service – they cannot pay under the table; they may not have an ID to prove that they have the right to access; they may fear a hostile reception when knocking at the hospital door.

We must also have understood that Roma and Sinti have become losers on the job market. Several of their traditional jobs have disappeared and they have difficulties to compete in the neoliberal economy. Poor education is of course a disadvantage, but even educated Roma and Sinti have had difficulties to get employed. Obviously, the reason is antiziganism.

We have also learned that there is a need of a comprehensive approach to address the combined problems of poor education, bad housing, lacking health care and unemployment. Also, that there is in all this a gender aspect – that it is greatly important that schooling and health care also reaches girls and that Roma and Sinti women have a voice in the broader society as well.

If we have grasped the genuine problems, identified the remedies and put them into strategies and action plans – why is there so little progress? What is blocking the implementation?

My conclusion is that it is the attitude of the majority population which is the key obstacle. Prejudices against this minority are deep and widespread in Europe. Even politicians are heard promoting slander against this minority, not least in periods of elections. Social gaps and injustices are a consequence of antiziganism. This has to be a major aspect of all strategies and action plans.

What can be done to ensure to change the attitudes, to combat stereotyped prejudices against Roma and Sinti people?

One aspect is to make known the Roma-Sinti history and culture. In Sweden a White Paper was recently published about the treatment of Roma during the last century: enforced sterilisation, registration on ethnicity grounds, evictions, obstacles to schooling and employment, etcetera.

The knowledge about this dark history will now be widely disseminated and also part of the curricula in schools.

Furthermore, the government has appointed a commission to combat antiziganism in the society today. The nine members of this commission have already recognised that Sweden is not free from ugly racism against members of this minority – and have already received striking examples of every-day discrimination. It intends to take action against such incidents of every-day discrimination.

The media are certainly extremely important in this context. Media could be helpful in giving information of real situations but could also spread stereotyped images of minority individuals, for instance linking crimes to Roma. Proper self—regulation has turned out to be wanting in several countries in this regard.

Another important aspect relates to the law enforcement institutions. The 2008 evaluation of the OSCE action plan highlighted the work of the police in this field. It warned against racial profiling and abusive treatment of Roma-Sinti cases. Our experience is that it is particularly important that the policemen are well educated about minority rights. The Swedish commission has already had reason to react against ethnic registration and profiling approaches.

One key phrase in the OSCE action plan was “For Roma with Roma”. That approach is necessary if results are to be reached. Authorities must work together with Roma groups who know what ought to be done – and naturally dislike gadje lecturing by so-called Roma experts. There are nongovernmental organisations with Roma representatives which too often are ignored by the authorities.

Having just returned from a study visit to Romania I feel deeply sad about the continued misery among many Roma communities there but at the same time encouraged after having met some officials both locally and in government circles who are prepared to contribute to sustainable solutions – with creativity and resources.

Implementation must now be the key. Strategy papers and action plans must be turned into real changes and reforms. The 2008 evaluation report stated that many strategies are implemented “in an ad hoc, symbolic manner with little hope of long term sustainability”.

The time for symbolism should be over. Political will for genuine implementation must now be mobilised. This is an urgent matter of human rights. But also necessary in order to protect harmony in our societies.

We cannot allow antiziganism to continue.

[This text is based on a presentation at the OECE-ODIHR conference in Warsaw 30 September 2014]

Council of Europe as an instrument for Human Rights

The Council of Europe may be sidelined in world politics and seldom seen in the media, but it has one significant strength: governments on the European continent really want to be a member of this particular club. It is widely understood that this organisation is based on positive, democratic values which give a level of prestige to its members.

Perhaps the greatest contribution by this body to the struggle for democracy and human rights has been given while applications from States for membership have been scrutinised. Though the process is less thorough than the one for European Union (EU) accession, there is also, for Council of Europe membership, a need demonstrate a clear commitment to basic human rights standards. One effect of this approach is that Belarus under President Lukashenko has not been welcomed into the community.

While the EU has had problems in finding methods of monitoring whether its members actually live up to the pledges given in the accession process, the Council of Europe has a battery of instruments with that purpose. The Parliamentary Assembly (PACE) has a special monitoring committee doing such follow up. The Committee of Ministers (CM) can initiate special procedures to review the situation on human rights and respect for human rights in particular countries. This has happened in Azerbaijan and Armenia and in Georgia and Russia after the 2008 war.


In fact, monitoring the democratic and human rights credentials of Member States is a major part of what the Council of Europe is all about. Apart from the special procedures directed towards particular countries, there are standard processes that apply to all Member States, or at least all of which that have ratified the relevant treaties (those that have not done so are instead encouraged to ratify).

The Council of Europe Commissioner can investigate and address basic and structural human rights problems in the Member States wherever and whenever he or she so choses. The Committee for the Prevention of Torture (CPT) monitors prison conditions on the basis of its own in situ inspections and the European Commission against Racism and Intolerance (ECRI) monitors and reports on progress and problems falling within its mandate. Other mechanisms are set up to review implementation of the various Council of Europe human rights treaties.

In other words, the Member States are made subject to a fairly systematic and multifaceted scrutiny in relation to their human rights performance. Indeed, some governments do complain that they have difficulties to cope with the many delegations from the Council of Europe.

Such monitoring and verification activities build one of the pillars in the Council of Europe human rights program. The two other pillars are standard setting and assistance.


Apart from the landmark European Convention on Human Rights (ECHR) with its additional protocols, there are a great number of other Council of Europe treaties dealing with human rights matters. The Social Charter, also in a revised version, spells out minimum standards on economic and social rights and allows Member States gradually to ratify more of the provisions spelled out in the treaty.

Minority rights are defined in two major conventions. One is about the rights of national minorities and the other about regional and minority languages. Also these should be ratified by Member States to enter into force and be binding on those who have so decided. Special committees are set up to monitor implementation. The same approach is applied on more recent treaties dealing with human trafficking, corruption and money laundering.

The actual drafting of the treaties is in the hands of the intergovernmental structures of the Council. When it is decided that a certain issue should be addressed in a draft convention for possible adoption, this matter is delegated to a subcommittee of the CM composed of governmental experts, which report to the CM (normally consisting of Ambassadors, the Permanent Representatives, of the Member States in Strasbourg).

The European Convention is also part of the national law of each Member State, which certainly increases its impact and importance. The decisions of the Court, the case law, are to be seen as authoritative interpretations of the Convention and thereby also standard setting.

The idea is that the other ratified treaties should also be seen by the Member States as guiding the lawmaking and judicial processes.


Within the limits of its resources the Council of Europa has a fairly ambitious program seeking to assist Member States to build a culture of human rights. There are Council of Europe offices in several Member States, tasked with the promotion for implementation of agreed standards and programs.

The focus is largely on providing expertise as well as training for key office holders. There is an ambition to link the advisory services with conclusions and recommendations from the various treaty bodies and expert committees. There is certain cooperation with the EU in this field and some projects are partly funded by the EU.

An interesting addition to the assistance efforts are provided by the European Commission for Democracy through Law (Venice Commission) which is composed of legal and constitutional experts in the different countries (some non-European countries are also part of the Commission). One activity of the Commission is to review key law proposals and issue Opinions to guide national decision makers. No doubt, the Commission has largely, and positively, contributed to the development of Constitutions in a number of Member States, not least in the newer democracies.


The three pillars, standard setting, assistance and monitoring, go hand in hand and inter-relate closely. The work on new standards is oft en the result of experiences from assistance and monitoring work. The purpose of assistance is largely to encourage the implementation of the standards and the program is, in reality, often based on recommendations from those who do the monitoring. In that sense, there is an inner logic in the overall human rights program of the Council of Europe.

My experience is that much has been achieved through this program. The systematic and comprehensive approach has caused sustained positive changes. Values have changed. Still, I have the feeling that the impact could have been even greater. The problem is that the potential of the Council of Europe is underrated, that the human rights mechanisms therefore tend to be under-utilised. Linked to this is the fact that the Council is under-resourced.

There is a need for a deeper discussion about the future of the Council of Europe and how its potential could be made to further promote human rights in a continent which continues to face serious human rights problems.

Let me mention some problems which ought to be addressed in such a discussion.


The Council of Europe is of course not alone. Other international and intergovernmental bodies are involved in human rights issues in Europe. The most important ones are the Organization for Security and Cooperation in Europe (OSCE) and the various United Nations bodies with outreach in Europe, as well as the EU.

The basic idea behind the OSCE activities is conflict prevention rather than human rights – though the distinction is not always obvious. The mandate of its High Commissioner for National Minorities (HCNM) is to seek solutions to tensions in relation to the status of national minorities which tend to be about their rights.

The Office for Democratic Institutions and Human Rights (ODIHR) certainly deals with human rights problems – it has a program on election monitoring, does trial observations and promotes the rights of Roma people. Other relevant OSCE mechanisms are the special representatives on media freedom and on trafficking of human beings. The OSCE has members and programs also in Central Asia.

Also the UN has human rights-related programs. The United Nations Development Programme (UNDP) has a coordinating role in the UN “one house” approach and has offices in several European capitals. Among the special agencies the High Commissioner on Refugees (UNHCR) and UNICEF play a crucial role in setting standards and providing assistance. The High Commissioner for Human Rights is certainly highly relevant as are the treaty bodies monitoring the implementation of  the UN human rights treaties.

The standard setting, assistance and monitoring work of these structures plus the Council of Europe and the EU do complement one another. However, the coordination between them is a genuine problem. Attempts to prevent too much overlap and crossed wires have, thus far, not been sufficiently successful. There are in some cases tendencies of unproductive competition rather than mature coordination.


The coordination on human rights between the Council of Europe and the EU has not worked well in spite of declarations on “European values” which have been strikingly similar.

Instead of basing its human rights work on the already agreed European Convention on Human Rights the EU drafted and adopted a separate charter which added very little to what was already in the ECHR (in particular read in the context of the case law of the Court). The new substance in the charter could have been included in the ECHR through an additional protocol, if the will had been there.

Furthermore, the authors of the charter created some confusion by using the term “fundamental rights” instead of human rights – while not clarifying the difference between the two concepts.

While the roots of the EU reach back to agreements on trade and economics, the Council of Europe’s history goes back to values relating to democracy and human rights. However, with the widening of the mandate of the organisation that we now know as the EU, concerns about human rights, including social rights, were put on the agenda, not least through initiatives of the European Parliament. This should have increased the interest in coordination on both sides.

The Council of Europe has Member States in Europe outside the EU bloc, among them Russia Georgia, Armenia, Azerbaijan, Moldavia and Turkey – countries which have been high on the EU foreign affairs agenda. It is my impression that the EU has only partially used its channels to the Council of Europe for learning from the
knowledge and experience of that body. However, I think a positive change came with Catherine Ashton and Stefan Fule in Brussels and Torbjorn Jagland in Strasbourg.

It seems that coordination between the structures depends largely on the interest and goodwill of individual office-holders. The absence of effective coordination structures is surprising in view of the fact that all EU members are also members of the Council of Europe.

A discussion is ongoing about the possibility of the EU to ratify the ECHR. Of course, all EU Member States are parties to that treaty – what is under negotiation is whether the union structures should also be brought under the jurisdiction of the Strasbourg Court. This makes sense in view of the fact that that decisions are taken by the EU Council, Commission and also the Luxembourg Court which affect the human rights situation in the Member States. However, the negotiations are complicated and now seem to move slowly. One reason appears to be the position of the United Kingdom.


Representatives of the UK have taken the lead in the criticism against the Strasbourg Court. The issue which appears to have initiated the negative position was a ruling by the Court against the blanket policy in the UK of depriving every prisoner of the right to vote in national and local elections. The UK government has argued that the Strasbourg Court should not meddle into such issues. Furthermore, the competence of the judges in Strasbourg was questioned in the UK debate and it was even proposed
that the State should declare itself no longer a party to the ECHR.

Though these positions appear to be part of an “anti-Europe trend” in the country, they should be taken seriously. The Court itself should of course be open to improve its conduct on aspects raised in well-based criticism. However, the main problem is the generalised nature of the UK points with its undercurrent of rejecting the need for UK citizens to have the possibility, as a last resort, to appeal to Strasbourg.

It would not be surprising if some other Council of Europe Member States would draw the conclusion that they also want to opt out of the Strasbourg system. If so, the most advanced international judicial institution for human rights would start unravelling.

If you study the extent of implementation of Court rulings you will see that the UK is not the only State Party who delay or ignore acting upon the decisions. Other Member States are less noisy but one could detect an increasing resistance in other countries as well against the Court.

My view is that the Strasbourg Court has given an enormous contribution to the protection of human rights in Europe. It has made the ECHR a living instrument of great importance for the interpretation of norms which are part of the national legislation in all Member States.

It has reformed itself and increased its “productivity” without falling into the trap of superficial decisions. The time between submission and decision is still too long, though even here we notice progress.

Other human rights mechanisms of the Council have on occasion been criticised – by governments who have objected to reports. One target has been the European Commission of Racism and intolerance, which was attacked by the then Danish government after a critical report. Myself, I was – when still Commissioner – called an “idiot” by a Minister of the same government.

However, such responses have been very rare. One reason might be that the Council of Europe actors have generally been cautious and competent. This, however, does not necessarily mean that their recommendations have been acted upon.


I stated that the Council of Europe’s contribution to human rights protection is underrated. Though there are quite a number of human rights defenders as well as officials in the government administrations who genuinely appreciate the Council’s efforts, these are seldom reflected in the media or in political debates. This is partly due to the methodology of the Council: while reports sometimes create news, neither standard-setting nor assistance is seen as particularly interesting. My opinion, however, is that much of the activities for human rights are full of human drama which deserves a higher level of public interest.

I also said that the mechanisms of the Council are under-utilised. This may not be the case of the Strasbourg Court which in fact has been flooded with submissions. What I had in mind was the knowledge and experience which have developed in the various bodies in the Council. Governments and other organisations, including the EU, could benefit from a much more active consultation with these available resources.

Finally, I also took the liberty to stress that the Council is under-resourced financially. In fact, it is amazing that so much has been achieved in relation to the finances made available. The Council of Europe has had a zero-increase-budget for a decade now, which in reality means a gradual decrease of budgetary resources year-by-year.

This has led to a mismatch between the enormous task with which it is faced and the limited possibilities to meet the challenge. More could be done.That is why I hope there will be a more informed discussion on the Council of Europe and its work for Human Rights.

(The text is from a lecture at the Utrecht University in March which will soon be published by the Netherlands Institute of Human Rights (SIM) in its quarterly journal).

Surveillance in Georgia

Swedish Radio has reported on the role of foreign telecom companies in Georgia. I have come across related issues on surveillance activities when exploring the Georgian human rights situation. In a report published at the end of September I had a chapter on the surveillance activities which was developed during the previous government and which is now being discussed in the country. The text is below:

Up to the end of August 2013 the Ministry of Internal Affairs identified in its own premises and in different other locations approximately 24 000 video and audio tapes which were recorded without Court authorisation. The sheer number of the tapes indicated that illegal surveillance was a systematic practice in violation of Article 8 of the European Convention on Humna Rights.

A large amount of the recordings appeared to have been obtained for a political purpose. Among individuals targeted are politicians who were in opposition at the time, journalists and activists in civil society bodies. A number of videos showing intimate sexual situations were also found; the purpose of which appears to have been to be used as tools in black mailing.

The Deputy Minister of Internal Affairs in the new Government published one of these videos, obviously to harm a critical journalist who was depicted in that particular video. The Deputy Minister was dismissed and charged, but the case illustrated the danger of these recordings to the personal integrity of those targeted.

The Government set up a Special Commission to guide the authorities in the handling of these illegal recordings and monitor the implementation of its recommendations. As making such recordings must be seen as serious crimes there was a need to review the files for the purpose of preparing possible indictments of those responsible. However, another absolutely central concern was that the integrity and privacy of those who have been recorded were protected. The recordings had to be destroyed and strong measures taken to collect those recordings which may have come into private hands. The illegal videos recording private life situation have now been destroyed.[1] Steps have also been taken to ensure that possession of such material be criminalised.

The newly appointed Data Protection Inspector is member of the Commission and she will generally have an important role to represent the interest on the broader public in the face of privacy threats. It is important that the office of the Inspector get broad support and necessary resources.

All technical and physical surveillance activities need to be regulated. No surveillance activities directed against individuals should be decided or conducted by the prosecutor, MIA or other parts of the executive without proper involvement of the judiciary and based on law.

The continued presence of surveillance equipment in the premises of telecommunication operators, giving the MIA automatic access to all communications via the private providers, is another concern which must be addressed. The possibility of some access to inter-personal communications could be essential in the fight against organised crime and terrorism. However, the risk for misuse means that there is a need of legal regulations and democratic and judicial control over all activities in this domain.

[1] On September 5 the Special Commission destroyed 110 CDs containing in total of 144 episodes of hidden-camera footage of intimate life (total size: 181 hours and 32 minutes). Members of the media were invited to attend and witness the destruction of materials.

Persons with disabilities have right to political participation

Persons with disabilities, like many other marginalised groups, have historically been the object of exclusion from political participation. Unfortunately, ingrained prejudices are slow to change. When it comes to persons with disabilities, the fundamental principle of universal suffrage is still not fully applied in many countries today.
With the entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), it is enshrined in international law that it is not acceptable to deprive persons with disabilities of their fundamental right to vote regardless of the nature or degree of their disability. Article 29 of the CRPD spells out that States Parties should ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others.

The right to effectively and fully participate

The first element raised by Article 29 of the CRPD is the right of persons with disabilities to participate in political life like everyone else, by voting and standing for elections. All persons, including all persons with disabilities, have the same right to actively contribute to and be engaged in wider society, and should have the same opportunities to enjoy this right.

This is both a matter of equal individual rights and of a broader societal interest. As spelled out in the Council of Europe Disability Action Plan, our societies need to reflect the diversity of their citizens and benefit from their varied experience and knowledge. It is crucial to ensure that there is full equality in participation in elections and representation of all members of society in decision-making bodies for the reflection of the diversity of views and needs in national, regional and local legislation and policy development.

Furthermore, this participation should be full and effective, rejecting all forms of barriers and requiring openness by persons who have no disabilities to the participation of persons with disabilities. It calls on public and private actors and institutions to guarantee equal opportunities to all human beings to make productive contributions to the community.

Universal suffrage

Universal suffrage is a fundamental principle and people with disabilities may not be discriminated against in this respect.

The very purpose of the CRPD Convention is to promote, protect and ensure the full and equal enjoyment of the full range of human rights by all persons with disabilities on an equal basis with others, without distinction. It leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person; as we do not test that capability for someone without disabilities, this would amount to blatant discrimination.

A paramount example of CRPD application in this regard is the recommendation of the Committee of Ministers of the Council of Europe which affirms that persons with disabilities have the right to vote on the same basis as other citizens “whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses”. Furthermore, it asserts that persons with disabilities should not be deprived of this right “by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity.”

Legal capacity and the right to vote

At the heart of the paradigm shift which the CRPD introduced, lies the right to legal capacity, i.e. the right to make one’s own decision and exercise one’s rights. Today, however, persons with intellectual and psychosocial disabilities continue to face barriers in this regard. Very often, their legal capacity is restricted or removed completely, meaning they are no longer entitled to make decisions about their own lives.

Persons with disabilities should be placed at the centre of decision-making processes, being regarded as subjects of their own lives, entitled to the full range of human rights on an equal basis with everyone else.

The aim of the CRPD is to promote the full inclusion and participation of all persons with disabilities in society, including persons with intellectual and psychosocial disabilities. When society deprives individuals of their rights to freely make their own choices and to represent themselves, it contradicts Convention standards. The CRPD places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights. This is the paradigm shift that the CRPD represents: it builds on the idea that we should go further than to just help persons with disabilities to adjust to existing conditions – our societies should seek to adapt to and accommodate everyone, including those with special needs, and including with respect to their right to vote.

The European Court of Human Rights ruled on such a case in 2010, Kiss v Hungary in which a man with psychosocial disabilities was denied the right to vote following the partial loss of his legal capacity The Court interpreted that the indiscriminate removal of voting rights based on a mental disability on account of partial guardianship was not compatible with the principle of universal suffrage enshrined in Article 3 of Protocol no 1 of the European Convention on Human Rights.

Despite this positive aspect of the judgment, the European Court missed the opportunity to go further to declare that any restriction or removal of legal capacity is no longer acceptable and not in accordance with the CRPD which today has been ratified by the absolute majority of EU Member States and by 37 out of the 47 member states of the Council of Europe.

The CRPD Committee has made it increasingly clear that any judicial or administrative decision which removes rights on the basis of disability should be eliminated as a matter of priority from national legislation and practices as demonstrated by its Concluding Observations on Spain:

“The Committee recommends that all relevant legislation be reviewed to ensure that all persons with disabilities, regardless of their impairment, legal status or place of residence, have the right to vote and participate in public life on an equal basis with others. The Committee requests the State party to amend article 3 of Organic Act 5/1985, which allows the denial of the right to vote based on individualized decisions taken by a judge. The amendment should ensure that all persons with disabilities have the right to vote. Furthermore, it is recommended that all persons with disabilities who are elected to a public position are provided with all required support, including personal assistants.”


The international human rights community has an important role to play to guide States to realise the full extent of their obligations under the CRPD. The old approach should be replaced by the United Nations Convention standards around the globe.
Some concrete steps which can be taken by States and the international human rights community are as follows:
(i) States should review and reform discriminatory legislation depriving persons with disabilities of their legal capacity.

(ii) The general principle of non-discrimination should form the basis of government policies geared to ensuring equal rights and opportunities for persons with disabilities through the removal of restrictions on legal capacity, the abolition of voting tests, the introduction of relevant legal provisions, specific forms of assistance, awareness raising and funding.

(iii) States must make their services more accessible to persons with disabilities to exercise their right to vote and be elected, providing, when necessary, reasonable accommodation to persons with disabilities, including the provision of information in plain language, Braille and sign language and the acceptance of a support person to assist or communicate the will of the individual concerned, if needed.

(iv) Universal and regional human rights mechanisms should base their decisions and practices on CRPD standards.

(v) Persons with disabilities and/or their representative organisations should be involved in the whole policy cycle: design, planning, implementation, monitoring and evaluation of policies that affect participation and inclusion of persons with disabilities within the community.

Social Justice necessary for the realisation of Human Rights

“No human rights without social justice”

Keynote speech at ENSAC Conference in Istanbul, 17 April 2013

There is a clear link between social equality and the realisation of human rights. All our experience in human rights work has taught us that human rights are better protected in the more equal societies.

This is obvious in regard to economic and social rights: equality is normally based on an adequate standard of living for the many. In an equal society more people enjoy the right to decent work, quality education, reasonable housing and access to health care. Where the gaps are wide, these very rights tend to be undermined.

Less obvious, but equally true, is that basic freedoms and other civil and political rights also tend to be better protected in the more equal societies.

In those, more people have the possibility to use the instruments that democracy offers, including political participation – and this, in turn tends to strengthen their civil and political rights. In other words, the inter-relationship between equality and human rights tends to go in both directions, they are mutually supportive.

Human rights in politics

This is controversial as it exposes the very political nature of the human rights cause even further.

There has been a deliberate effort from civil society groups and others who have tried to promote human rights to avoid politicisation, especially in the form of party politics.

We have hoped that the agreed standards and norms would be accepted and supported by all governments – irrespective of their political colour. This has to some extent been successful, at least at the stage of the drafting, adopting and ratifying of international human rights treaties.

However, recent developments have demonstrated that the human rights principles cannot be applied in a vacuum. They should be carefully considered in the highly political discussions on economic and security policies.

This time I will limit myself to issues relating to economics and social justice.

Growing gaps

In this part of the world – Europe – social equality has been gradually undermined for several years by now. Gaps in income, wealth and other aspects determining the individual standard of living have widened in Europe for the last three decades.

It is estimated that of the 800 million people living in greater Europe more than 150 million are living in poverty, that is, in households with less than half the country’s median income.

Many elderly people and persons with disabilities live in extremely poor circumstances which have become worse during the economic crisis. Women still suffer from pay inequalities and job discrimination, and even in the richest countries children live in acute poverty in many disadvantaged communities.


The poor and the marginalised – among them minorities such as the Roma – tend to lack influence and opportunities to make their voices heard. Surveys have shown that they feel ignored by political parties and they often have little confidence in the authorities.

When they are victims of crime, they hesitate to report this to the police – because of mistrust. In courts, they are at a disadvantage in comparison to those who can hire senior lawyers and in prisons they are over-represented.

Children living in poverty often have little support to cope with problems in school. Some do not speak the majority language and are therefore doubly excluded. Social exclusion is passed on from one generation to the next. Inequalities prevent social mobility.

These problems are indeed consequences of political decisions.

Austerity programs

Social legislation has been “reformed”, social services reduced and support to the most vulnerable cut back. Care for the aged, disabled people and children in trouble have been privatised – and the oversight of these new private enterprises has not been sufficient in a number of cases. Inmates in social institutions have been the victims.

This trend was there already before the 2008 economic crisis but has become worse thereafter.

Enormous sums of tax payers’ money were made available and poured into the banking system in order to prevent a global financial meltdown. Ordinary people were forced to pay for the reckless practices of a few.

Increased unemployment placed a further burden on state budgets and there was therefore less space for social assistance just at the very time when needs grew inevitably.

These developments took place parallel to the advance of neo-liberal ideas which promoted the philosophy that the state should be slimmed and market forces free to solve major problems in society. These attitudes came to affect social policies.

The crisis was made worse by the response from European institutions to the Euro crisis. Draconian austerity programs were introduced in the midst of the recession and unemployment grew further.

Many leading economists questioned the wisdom of this policy and human rights experts warned about the social consequences – but with little impact. Only very recently could we see some signs of rethinking, for instance from the International Monetary Fund.

Extreme nationalistic movements

The original financial crisis turned into a broader economic crisis which in turn ended up in a political crisis – and a crisis of basic values. We have clear tendencies of tensions in our societies, signs of lacking trust in the political establishment and even outbursts of social unrest.

One side effect has been the growth of extreme nationalistic movements, some of them heavily Islamophobic, anti-Semitic, anti-Roma and anti-migrants. These racist and xenophobic tendencies do certainly complicate the work for human rights in our societies.

In his inauguration speech in January 2009, US President Barack Obama made the point that the crisis is not only the result of reckless risk-taking by some bank officials or the “greed and irresponsibility on the part of some”. It was also, he said, the result of “our collective failure to make hard choices and prepare the nation for a new age”.

Inequalities cannot be ignored

That new age will not arrive if we continue to ignore the deep inequalities and injustices in our societies. These inequalities undermine social cohesion and thereby threaten the security of all; they clearly violate the principles of human rights which we have pledged to respect.

Instead of allowing these inequalities to grow even further, the current global crisis ought to be a turning point for concrete measures to restore social justice.

It has been shown that an equal, rights-respecting society is better for everyone, not only for the most vulnerable. Equal communities have less illness and a longer life expectancy than unequal communities. Facts about social problems and crime rates demonstrate that inequalities, even in the most affluent societies, create insecurity which harms everyone.

It has also to be recognised that the crisis goes deeper than its obvious economic aspects; it touches on questions of public confidence and ethical values. It is time to start building a cohesive society again built on respect for the individual whoever he or she is.

Right to an adequate standard of living

This is a human rights challenge. The Universal Declaration of Human Rights says that all human beings have the right to a standard of living adequate for their health and well-being, including food, clothing, housing and medical care (Article 25).

An overwhelming majority of states have ratified the UN Covenant on Economic, Social and Cultural Rights and many European states have endorsed the European Social Charter and the revised European Social Charter. The UN Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities have got wide support.

However, we have to realise that social justice cannot be established only by way of traditional human rights instruments, even if they are updated and modernised.

The enormous gap between the haves and have-nots is a major ethical, ideological and political challenge – the resolution of which will require change in many aspects of our societies.

It is necessary to analyse in more depth how these gaps in human rights protection have emerged and grown: the link between the extreme wealth of some and the extreme poverty of others has to be analysed. The reckless speculation that caused the banking crisis – leading to untold tragedies for many people – has illustrated the need for regulation and accountability.


Corruption is widespread, almost endemic, in several European countries. Too many politicians have allowed themselves to exchange favours with big business interests.

When corrupt practices are tolerated in local and central government administration, it is the poor who suffer the consequences. Occasionally, people are forced to pay bribes for services which they should receive for free and as of right.

The unequal status of women is another reflection of continued discrimination and, at the same time, a source of injustice on a broad scale. It is estimated that about two thirds of those who live in absolute poverty are women.

They are often in weak negotiating positions, in poor communities, and are faced with almost insurmountable barriers preventing them from effectively asserting their rights. This is a tremendous loss for the whole of society.

The marginalisation of the poor also owes a lot to basic attitudes. When political leaders and opinion formers engage in rhetoric implying, for instance, that the poor have only themselves to blame, they justify political inaction in the face of poverty.

There has also been a tendency to see marginalised groups as security threats rather than as people in need.

Credibility gaps

We are facing several inter-related gaps. One disjunction is the distance between the agreed standards on human rights on the one hand, and continuing violations on the other – the implementation gap.

Another gap lies in the striking difference between the promises made by politicians (not least during election campaigns), and what is actually delivered when they are in office.

These gaps are different sides of the same problem and they tend to undermine public trust in the possibility of social justice. I have become increasingly worried about this credibility gap and its consequences more generally for democracy and, thereby, the protection of human rights.

In the current atmosphere of xenophobia and reduced empathy, extremist political groups have been given an increased possibility to spread their message of fear and hatred. This is a threat against democracy itself – calling for reflection and action. The challenge is to build a society in which everyone is included and no one is left behind.

More needs to be done against transphobia

During six years I travelled frequently to member states of the Council of Europe. I was often reminded of the continued discrimination against individuals on account of their gender identity. Transgender persons still encounter severe problems in their daily lives as their identity is met with bureaucratic insensitivity, suspicion or outright rejection.

There have been some extremely brutal hate crimes against transgender persons. My discussions with non-governmental organisations defending their rights indicate that a number of hate crimes (even very serious ones) go unreported. One of the reasons appears to be a lack of trust among transgender people towards the police.

Some people seem to have problems with the mere existence of human beings whose inner identity is not the same as their appearance or as the one determined at birth. The aggression directed against transgender people cannot, however, be dismissed only as a psychological problem of those who do not know better. These attitudes victimise a number of innocent and vulnerable persons and must therefore be countered.

I have been struck by the lack of knowledge about the human rights issues at stake for transgender persons, even among political decision makers. This is probably the reason why more has not been done to address transphobia and discrimination on grounds of gender identity and gender expression. The result is that, in all countries, individuals are discriminated against, including in such crucial areas as housing, employment and health care.

In a number of cases, problems start already at the stage of the state recognising a person’s gender identity when issuing birth certificates, passports and other documents. Most transgender persons who want to state that they no longer identify with their gender as registered at birth have difficulties in processing those changes in official records. This in turn has caused a number of practical problems when showing identification papers: in the bank or the post office, when using a credit card, crossing a border or in other similar situations.

One well-publicised case related to Dr Lydia Foy in Ireland who has tried for years to obtain a birth certificate to reflect her female gender since April 1997. Five years ago the Irish High Court delivered a landmark judgment ruling that the state was in breach of Article 8 of the European Convention on Human Rights and the Irish Government later withdrew its appeal.

Therefore, not only should Lydia Foy be legally recognised as a woman, it was obvious that the government had an obligation to introduce legislation to recognise transgender persons in their new gender, and allow them to obtain new birth certificates. I was surprised – and disappointed – to learn when I recently visited Dublin that this had not happened.

In fact, these problems have now been addressed in most European countries, where it has become possible to obtain corrections of such records and also obtain new forenames. However, in some countries a change of birth certificate is still not allowed and, in others, such changes are permitted only upon proof that a person is sterilised, declared infertile, or has gone through other medical procedures such as gender reassignment surgery or hormone treatment. The medical obstacles thereby created for the individual are ignored, and the opinion of the individual is seen as insufficient.
Additionally, many countries require that a person divorce before the new gender can be recognised – regardless of whether or not the partners actually want to divorce. This in turn has a negative impact on the position of children, both in terms of their rights, as well as in terms of their relationships with their parents. In fact, in several countries, the parent who has undergone gender change will lose custody rights. Such legislation needs to be reformed in the spirit of the best interests of the child.

To require surgery as a condition for enjoying the right to one’s gender identity ignores the fact that only about 10% of the transgender persons in Europe undergo gender reassignment operations.

While the official policy in some situations makes surgery a condition for the gender change to be accepted, such operations are not always a practical option for those who want them. A study by ILGA-Europe and TransGender Europe showed that a large proportion of transgender respondents in the European Union are refused state funding to alter their sex.

Even access to ordinary health care can be a problem for people with a “non-standard” gender identity. The lack of trained staff and the lack of familiarity with the specific health care needs of transgender persons – or simply prejudices towards transgender people – render this group of people very vulnerable to unpredictable and sometimes hostile responses when they use medical services.

In the United Kingdom, some 4 000 male-to-female transgender persons have been struggling to get their gender status accepted, including for the purpose of accessing pension benefits. In spite of overwhelming legal arguments, they have so far been denied the pension rights that all other women in the country have.

Other obstacles stand in the way of living a normal life like everyone else. A major problem for transgender persons is the harassment and discrimination many of them face in workplaces. The effect is that some just leave their jobs, while others avoid undergoing gender reassignment surgery as they fear being stigmatised.

Data presented by the Agency for Fundamental Rights has shown that some jobless transgender persons have been unable to find other employment and have then ended up in prostitution. A report from Human Rights Watch on the situation in Turkey drew attention to the situation of transgender prostitutes in that country – victimised by violence, drug addiction, sexual abuse, lack of health insurance, homelessness, police attacks and a high risk of HIV/Aids.

To date, very little factual information has been gathered on the situation of transgender people in Council of Europe member states. This information is needed to determine where the rights of transgender persons to recognition of their identity are infringed, and the extent of their problems in terms of discrimination and violence, and when accessing health care or other public services.

The European Court of Human Rights has ruled that states are required to recognise the gender change in post-operative transsexuals. A case was raised by Christine Goodwin from the United Kingdom who herself was a post-operative male-to-female transsexual. She complained of sexual harassment in the workplace, discrimination in relation to contributions to the National Insurance system, and denial of her right to marry.

The Court stated that:

… the very essence of the Convention was respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy was an important principle underlying the interpretation of its guarantees, protection was given to the personal sphere of each individual, including the right to establish details of their identity as human beings.

… In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society could no longer be regarded as a matter of controversy requiring the lapse of time to cast clear light on the issues involved.

There is no excuse now for not granting this minority their full and unconditional human rights. This message from the Court has to be followed through in all Council of Europe member states. States must take all necessary actions to ensure that transphobia is stopped and to end any discrimination against transgender persons.

Guantanamo – still a scandal

The Obama administration appears to be lost on the issue of Guantanamo. The decision to close this detention facility does not seem to be any closer to implementation, largely due to opposition in the Congress.There are now 166 prisoners remaining in Gitmo.

A few of them are the so called High Value Detainees who were brought there after having been interrogated under torture in secret CIA-prisons in Poland, Romania and other places. The problem in bringing them to trial is that the defense lawyers certainly will demand that the charges cannot be accepted precisely because of the torture during the investigation.

Another group of prisoners are those whom have been “cleared” but could not be let free because there was nowhere for them to go as they had been stigmatized in the come to the US and the willingness in other countries to receive them has run thin.

Then there are about four dozen prisoners deemed as “dangerous” but could not be prosecuted. They have demonstrated their anti-American views during the interrogations and are seen as dangerous. Several of them come from Yemen which is a further complication, or course. However, no crime has been proven in these cases.

Is it legal to keep people deprived of their liberty on this basis?

US authorities argue that there is a war against al Qaeda and that the prisoners are to be seen as captured enemies in that war and therefore the Third Geneva Convention would apply – they could be seen as Prisoners of War whom could be kept until the war is over.

However, it could definitely be questioned whether the US combat against terrorism is indeed a war in the sense of international humanitarian law. This is not a battle against any enemy state but against individuals spread out over a number of countries – this is different.

Also, this point is theoretical because the US authorities do not respect the rules which would apply in war time. They do not respect Geneva Convention on the treatment of Prisoners of War. They never did – and still don’t, even if the material conditions for the detainees on Guantanamo have improved since 2002.

The treaty on POW:s is very precise. The basic idea is that the prisoners should be treated in a humane manner. It certainly, does not allow for torture or other cruel and inhuman treatment. The detainees are only required to give information about their identity. They should have the right to correspond with their family and have several other rights. None of these requirements have been respected.

The truth is that Guantanamo is a human rights scandal. If there is evidence about criminal activities against some of the detainees, they should be brought to a proper trial. Others must be freed. Suspicions that they might turn against US interests in the future, is not a legally accepted reason to keep them locked up.