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.

Poverty

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

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.

Protecting rights against austerity policies – speech in Dublin

“Access to Justice for All –
Regardless of Their Means”

Annual Dave Ellis Lecture
By Thomas Hammarberg
Dublin, 13 December 2012

The economic crisis has been talked about as if we had been struck by an unfortunate natural disaster. But the crisis is man-made. It is the result of a series of decisions taken by human beings, among them prominent bankers, investors – and politicians.
This crisis could have been avoided.
Now, Ireland and several other European countries have to face the consequences. The damages have to be limited:
– the damage on the many individual victims, not least on the poor and the most vulnerable;
– the damage on the social fabric as a whole; the damage on trust and the spirit of togetherness and genuine democracy.
This is a political challenge, unprecedented in our time. And it is certainly a human rights priority.
Furthermore, there is an absolute need to learn from this bitter lesson. This in turn requires an honest, self-critical analysis on why it went wrong and how such a disaster can be avoided in the future.

A Presidential analysis
In fact, President Obama, in his inauguration speech four years ago, asked for such a discussion. He said that the crisis was not only the result of “reckless risk-taking by some bank officials” or the “greed on the part of some” but also the result of “our collective failure to make hard choices and prepare [ourselves] for a new age”.
There was little constructive response to this invitation. However, Barak Obama himself came back with a more detailed analysis in a speech in Kansas last December. He mentioned that the crisis had roots long before the recession.
“Those at the very top grew wealthier from their incomes and investments than ever before. But everyone else struggled with costs that were growing and paychecks that weren´t – and too many families found themselves racking up more and more debt just to keep up”.
He continued:
“We all know the story by now: Mortgages sold to people who could not afford them, or sometimes even understand them. Banks and investors allowed to keep packaging the risk and selling it off. Huge bets – and huge bonuses – made with other people’s money on the line”.
He pointed at the failure of the regulators to warn about the dangers and then he summarized his verdict on what had happened:
“It was wrong. It combined the breathtaking greed of a few with irresponsibility across the system”.

Austerity measures against recession
I quoted the US President as I could not find a speech with similar clarity from any leading European politician. However, his analysis is indeed relevant for us Europeans as well. For one, the gap between the rich and the poor has grown also in Europe during the past three decades.
It was obvious that bank regulations had been insufficient, but it was deemed necessary to pour state money – taxpayers’ money – into the banking system in order to prevent a financial meltdown. We were landed in a situation when debts were nationalised while profits stayed privatised.
Unemployment grew during the recession which in turn reduced state incomes and increased state expenditures. The result was that even less resources became available for social protection.
The inflexibility of the Euro system worsened the crisis in large parts of Europe.
The response from the decision makers has been to force through a a dogmatic austerity policy in spite of the recession. The idea has obviously been was that further budget cuts would produce recovery as the investors would become convinced that good returns were possible.
But the recovery has been anaemic. This is of course not a surprise; growing unemployment has decreased the purchasing power and thereby the demand in the overall economy. The spiral has gone downwards as a number of experienced and independent economists had foreseen.
An austerity program during a severe recession is so obviously in conflict with all wisdom that one wonders if there has not been another agenda behind, an ideological one: to downsize the government.

Obligation to protect economic and social rights
Is there a connection between all this and our agreed human rights standards?
Usually, we try to separate our human rights demands from party politics and political ideologies. This has become much more difficult now when very basic human rights standards are undermined by economic, ideologically- driven decisions which even the US President describes as “reckless”. Social and economic rights have been violated on a broad scale.
It must be stressed that economic and social rights, also, are human rights. There have been attempts to downgrade the status of these rights as compared to civil and political rights. One sometimes hear that the former ones are only “second generation” rights.
In fact, there are concerted efforts to go further and deny the legitimacy of the very concept of rights in relation to these economic and social acts of injustice.
It is therefore important to remember how our human standards in fact have developed. When Franklin D. Roosevelt defined the “Four Freedoms” in his famous State of the Union speech 1942, he included “Freedom from Want” as one of them.
The 1948 Universal Declaration of Human Rights includes several articles about social rights, including the right for all human beings to “a standard of living adequate for their health and well-being, including food, clothing, housing and medical care”.
Human rights conventions adopted through the years, like the one on children’s rights and the one on rights of persons with disability, illustrate how the basic freedoms inter-relate with social and economic rights. The various rights are interdependent. Another reflection of this can be seen in a number of ILO conventions.
States have in most cases ratified these treaties. Governments are obliged to implement their standards “to the maximum extent of their available resources”, as the formulation is in a couple of those agreements.
I would propose that the spirit of this obligation also urges us to take steps to prevent man-made crisis situations like the one we have had in the recent years.
This can obviously not be done by further down-sizing our common, public institutions.
On the contrary, there is, for instance, a need for effective regulations of the banking system, in particular of those banks which are “too big to fail”, those which will be bailed out by the state when in a crisis.
I have been worried to see a trend that even the offices of the ombudsmen and the equality bodies have had their budgets cut – now when their work has become even more urgent. The crisis has created the need for institutions and procedures to protect the rights of vulnerable people.
I am aware of the discussion on these issues here in Ireland and hope that the changes – including the merger of the Commission and the Equality body – will not result in a reduced capacity to monitor and act upon cases and situations of human rights problems in the republic.
It is also essential that that monitoring be done in broad consultation with civil society. When in Iceland I learnt about the functioning of a “Welfare Watch” set up in cooperation with the civil society in order to ensure precisely that. I heard that FLAC has proposed special procedures for poverty impact assessments.

Equal societies are more fair – and better for everyone
It is by now demonstrated that equal societies are better off in many respects, not least in the social sphere. They have less illness and a longer life expectancy than unequal communities. Factual data about social problems and crime rates show that inequalities, even in the most rich societies, create insecurity which harms everyone.
Do the agreed human rights norms support an advocacy for more equality in society?
Yes, several of the international human rights treaties include provisions against all forms discrimination. This is broadly interpreted to include positive actions for persons who for different reasons are disadvantaged – in order for them to be ensured equal opportunities.
The treaties describe minimum standards but do not put a ceiling on higher social and economic standards for any individual. However, there is a golden rule that one’s freedom does not include the right to harm and limit some else’s freedom.
I would argue that the rapid and enormous enrichment of a few indeed has harmed the interests and wellbeing of others before and during this crisis.
My conclusion is that it is not sufficient to pay lip service to the “social dimension” in the debate about economic policies. The agreed standards on social and economic rights must be given a much more prominent position when crucial decisions are to be taken on all aspects of economic policy.
This is the lesson.

Civil society – important counter balance
Will this crisis remind us about the need for social solidarity and political idealism? Do we, to use Barak Obama’s language again, have the courage to make the hard choices and prepare ourselves for a new age?
I am convinced that many do dream about an age in which greed is not rewarded, but care and respect for others would be. An age in which we all have the possibilities – and the relevant information – we need to exercise our democratic right to influence political decisions, both locally and globally.
With this I have come to the role of civil society.
I believe we cannot overestimate the importance of non-governmental groups and initiatives as a counter balance to the trends I have just described.
The deliberate and gradual weakening of the trade unions is therefore of great concern. Likewise, there is a need to oppose a tendency among governments to subcontract some of their basic obligations to non-governmental entities while at the same time undermining their possibilities to pursue advocacy programs. Instead they should welcome and encourage reform proposals from civil society.
Particularly important are NGO:s which are engaged in concrete community work; support and represent the rights of individuals and families; and use their knowledge and experience to advocate reforms for justice.
Free Legal Advice Centres is one of them. FLAC campaigns for access to justice for all, regardless of their means. It defines access to justice in a broader sense – access to basic legal information; access to legal aid and advice to defend one’s rights in the court system; access to social security; and access to a fair solution in cases of chronic over-indeptedness.
These efforts are crucial. They give tangible relief to people whose rights are at risk. They set an admirable example. They represent a caring, democratic spirit which gives some hope in the darkness.
FLAC’s work on a fair and workable legislation on personal insolvency cases, for instance, is a model of meaningful, relevant initiatives. I understand that such efforts are very much in the spirit of Dave Ellis, whose many years of community work with marginalised individuals and communities has been an inspiration to FLAC activists and others.

Destitute and vulnerable people
Work in a caring, democratic spirit does require that special attention is paid to destitute and marginalised people, many of them belonging to minorities.
Roma people, travellers and migrants are not only generally disadvantaged in our European societies and often denied access to justice. They have also been targeted by racist extremists and suffered from hate speech and even hate crimes – and increasingly so during the economic crisis.
Lesbians, gays. bisexual and transgender persons have also been discriminated and harassed, not least in some of the former Communist countries. Unfortunately, the prejudices are widespread also in countries with a longer democratic tradition.
I know that FLAC has supported the struggle of Dr. Lydia Foy to have her real gender identity fully recognised. Five years have passed since it was clarified that Irish law was not compatible with the European Convention on Human Rights and I really thought that this would have been remedied by now, that a transgender recognition legislation would be in place. Such a step would be natural in a caring society in which human rights for all are a priority.
Persons with disabilities have not been protected against the negative consequences of the European crisis in spite of the pledges given in the 2006 UN Convention on the Rights of Persons with Disabilities. Budgets for carers and support for independent living projects have been reduced.
Elderly people have been hit by the austerity measures. Pensions and allowances have not been increased parallel to price increases. In particular, women – some of them with little or no old-age allowance – have fallen into destitution. There appears to be no strong voice for their interests among the decision makers.
As you know, we have also child poverty in today’s Europe. Children are growing up in conditions which will make many of them disadvantaged in schooling and in future job seeking. Cuts of child benefits have a most negative impact on families which are already destitute. Poverty tends to go from one generation to the next. Not to break that vicious cycle is a terrible waste, but also a human tragedy.

The most poor have least access to justice
Poverty and marginalisation is not only an issue of limited economic resources, it is a question of powerlessness – lack of access to those who decide.
The EU Fundamental Rights Agency has now published another report on access to justice problems within the European Union bloc. It organised a series of interviews in eight countries among persons who had complained as well as among people who had had problems but for some reason had not sought remedies.
The report showed a number of problems: little help to find an entry point where one could start claiming one’s rights; complicated procedures which were not explained; difficulties to understand the law; and uneven access to legal aid.
The report confirms that those most of need of justice and fair treatment tend to be those with least access.
That is why FLAC’s campaign is so totally relevant.

EU in Oslo: unanswered questions on secret detention and torture during the “war on terror”

On Monday the European Union will receive the Nobel Peace Prize. Questions have been raised, but one body within the EU structures has indeed made attempts to stand up for values which we connect with this prestigious award: the European Parliament.

However, the EP has not always had a constructive response from member states or even other parts of the EU structures in Brussels.

In September the parliamentarians adopted a major resolution urging member states to come out with the truth on their involvement in the secret CIA program in the “war on terror”. Their position was based on a thorough, factual report spelling out facts about European complicity in crimes of torture, secret detention and enforced disappearance.

The parliament criticized the fact that these serious human rights violations had not been properly investigated – despite mounting evidence compiled by international human rights institutions, civil society groups and some media.

European governments provided the US Central Intelligence Agency with the conditions to fly apprehended suspects to clandestine interrogation centres. We also know that severe torture was used in these “black holes”, including waterboarding (simulated drowning), mock execution and threats to the family members.

All detainees brought to these secret interrogations centres, as well as numerous other suspects handed over to CIA, were subjected multiple times to the degrading and disorientating process of rendition: invasively stripped naked, drugged, shackled and subdued, then forced aboard hired private aircraft to be flown to destinations and fates unknown.

Secure facilities were furnished in Poland, Romania and Lithuania to meet the CIA’s demand to hold its high-value detainees, or “HVDs”, in absolute secrecy. For long, the Governments of these countries were in total denial about this cooperation.

Now, at long last, investigations are underway in Poland. A judicial inquiry is conducted by a group of special prosecutors in Krakow. According to the press, the former head of security services was informed that he would be charged. However, there are some concerns that progress is slow, in particular regarding the very decision to allow CIA to set up its interrogation centre in the country.

In Lithuania it was established through a parliamentary committee that two sites had indeed been equipped for secret detention by CIA. However, the general prosecutor has closed his investigation arguing that no evidence had been produced indicating that these were in fact used. European parliamentarians, non-governmental groups and attorneys have pleaded for a re-opening of the investigations.

The Romanian authorities have so far kept a position of total denial and there has been no serious investigation in spite of convincing documentation provided by Council of Europe and others. Only after the European Parliament resolution did the Romanian President Basescu admit that an independent judicial investigation ought to be undertaken. If followed through, this would certainly be an important step towards putting an end to the atmosphere of impunity.

Hiding the truth can only undermine the credibility of the European promise of human rights and democratic values. The EU Commission, Council and member states should take the parliament report and resolution very seriously. Europe must come clean about what was done in the name of our common security. Robust investigations and prosecutions must be pursued wherever violations have occurred.

(Helene Flautre, the EP rapporteur on the CIA program in Europe contributed to this comment).

Janusz Korczak – a man whose example and writings inspired the work for children’s rights

The Polish government decided that 2012 should be the year of Janusz Korczak – 70 years after his execution by the Nazis and 100 years after he started working in an orphanage in Warsaw.

There have been conferences or seminars during the year in several countries about this remarkable man and his teaching – much like the Swedish information activities in memory of Raoul Wallenberg. The final meeting is now being held in Warsaw.

Janusz Korczak may be more known thorough how his life ended. In August 1942 the Nazi troops decided that the orphanage must be closed and Korczak, his staff colleagues and the 192 children were marched to through the ghetto to the train taking them to the Treblinka and the gas chamber. Friends intevened on behalf of Korczak and he was offered an escape, but he refused to leave the children.

Focus during the Korczak year has more been on his writing. No doubt his books had an influence when the UN Convention on the Rights of the Child was drafted in the nineteen-eighties.

Still, his teaching deserves more attention. Korczak was one of those thinkers who was ahead of his time. Some of his ideas are still not fully understood and they are absolutely relevant in the work for children’s rights today.

Janusz Korczak, whose original name was Henryk Goldszmit, was born in a Jewish, assimilated middle class family in Warsaw. His first years appear to have been happy, his father was a successful lawyer and there were no economic problems. This changed when Henryk was eleven and his father had a serious mental break down which ruined his family.

In spite of poverty he managed to write novels already in his early twenties and get them published. This was when he started using his pen name, Janusz Korczak. However, when concluding that “writing is only words, medicine is deeds”, he focused on his medical studies. Already at this stage he became more and more committed to the fate of destitute children.

Soon after he qualified as a doctor he was enlisted in the Russian army during the Russo-Japanese war. As always, he was writing:

“War is an abomination. Especially because no one reports how many children are hungry, ill treated, and left without protection. Before a nation goes to war it should stop to think of the innocent children who will be injured, killed, or orphaned. No cause, no war is worth depriving children of their natural right to happiness. One must think first of the child before making revolutions”.

From 1904, he acted regularly as supervisor at summer camps for poor children. He focused increasingly on child psychology and pedagogy. While spending more time on teaching and giving lectures, he continued his medical practice. He was known to demand high fees from wealthy patients and treat the poor free of charge.

At the age of 34 he was asked to become director of a Jewish orphanage – a position he would keep until his last day. As a doctor he cared for their physical well-being, weighed and measured them and gave them medicine. Seeing that the deeper wounds related to broken families, poverty and other social ills, he redefined the very concept of health care. There, he would develop his talents as medical doctor, teacher but also as author and therapist to support children and promote their rights.

He saw the importance of child-friendly learning methods, arguing that ethics was more important than pure facts. He introduced a democratic spirit in the orphanage in which the children themselves had a say in the decisions – but also had to carry the burden to ensure that decisions were enforced. This “children’s republic” had a parliament and a newspaper.

Most well-known is perhaps his experiment with a system of justice. A constitution was written in the orphanage and a court established among the children to deal with alleged injustices. Also Korczak himself was charged a couple of times for mistakes. The punishments after these trials were regularly to ask for forgiveness and be excused.

With an extra-ordinary capacity to listen and relate, Korczak had entered into a life-long study of children’s reactions, emotions and behaviour. He filled his notebooks with observations, reflected upon them and formulated aphorisms addressed to parents and other adults, many of them in poetic form. He became an interpreter between the world of children and the grown-ups.

During a wave of anti-Semitism in Poland he was dismissed from the radio after several years as the popular “Old Doctor” – answering questions from listeners. His colleagues at the broadcast station wrote a letter of protest in which they described how he could “talk with children as they were adults and with adults as if the were children”.

His books for children, and not least “King Matt the First”, are indeed demanding and do not hide conflicts and sorrow – in this being similar to the later writings of Astrid Lindgren. Korczak’s messages to adults are written with a great portion of child-like clarity.

He became the first and most radical campaigner for children’s rights. When reading the Declaration of the Rights of the Child adopted by the League of Nations 1924 he was disappointed. It was not clear enough, it was begging rather than insisting. He wanted rights – not charity – and rights now, not in the far future:

“Children are not the people of tomorrow, but are people of today.
They have a right to be taken seriously,
And to be treated with tenderness and respect.
They should be allowed to grow into
Whoever they were meant to be –
‘The unknown person’ inside each of them
is our hope for the future”.

For Korczak two rights were particularly important: the right to receive love and the right to respect. He developed these in two longer texts for parents and teachers. “How to Love a Child” was prepared on the battlefields of World War I and The Child’s Right to Respect written in the nineteen-twenties.

Korczak pleaded for equality between children and adults:

“People speak of the old with weighty respect.
They speak of the child patronizingly and condescendingly.
This is wrong, for the child too deserves respect.
He is still small, weak.
He does not know much, he cannot do much as yet.
But his future – what he will be when he grows up
commands us to respect him as we respect the old”.

Many children react against adult hypocrisy towards them. This is how Korczak formulated this feeling – while in language identifying himself with the grown-ups (using “we”) but in substance standing on the side of children:

“We do not like it when children criticize us.
They are not permitted to notice our mistakes, our absurdities.
We appear before them in the garb of perfection.
We play with children using marked cards.
We win against the low cards of childhood
with the aces of adulthood.
Cheaters that we are, we shuffle the cards
in such a way that we deal ourselves everything”.

Korczak worked in the worst of circumstances and experienced how immensely important it was that at least some adults treated the child with respect and love. Abuse caused deep scars:

“There are many terrible things in this world, but the worst is when a child is afraid of his father, mother or teacher”.

Korczak dared to use the word “love” and did so repeatedly. But he was not sentimental – not even towards children. His education was not a laissez-faire approach, he pleaded for rights with responsibilities. In the orphanage each child had a task. He argued against too much protection, children should also have the right to learn from experience, they must be able to test and even to take the risk of harming themselves.

Many of the points Korczak made are about respecting the integrity of the child. He argued that the child must have the right to have secrets – reading a diary without permission is wrong. Another right he proposed – probably surprising to some – was the child’s right to respect for own possessions and budget. Even if he or she owns almost nothing, it is important that the ownership of these few belongings is respected.

The 1979 Year of the Child was followed by the drafting of a United Nations Convention on the Rights of the Child. Korczak’s thinking played a role – I know this for certain as I took part in the process.

The final text was adopted by the General Assembly in 1989. Now 23 years have passed and it is time to take stock again – in the spirit of Janusz Korczak.

Ending discrimination of Roma

In many European countries the Roma population is still denied basic human rights and made victims of flagrant racism. The Roma remain far behind others in society in terms of educational attainment, employment, housing and health standards, and they have virtually no political representation. A number are stateless or have no identity papers When attempting to migrate they are discriminated against and are often refused entry or expelled. Their exclusion from society feeds isolationism which in turn encourages prejudice against the Roma among xenophobes. More effort is needed to break this vicious cycle.

The social marginalisation of Roma is no longer a hidden problem. A number of international organisations have developed programmes to address the issue. For example, the UN Development Programme has promoted the “Decade of the Roma Inclusion 2005-2015” in co-operation with various governments – primarily in the Balkan region. The OSCE Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw is giving technical assistance to implement practical programmes for inclusion and the European Commission has provided considerable funding to support such efforts.
Evaluations of the results so far have been disappointing. Some aid programmes have not been well designed and have failed to engage with the Roma themselves. It is clear that these problems run deep, and cannot be resolved in a few years.
Nor is there one simple, single solution. While anti-Gypsyism is a threat to all efforts to ensure that Roma enjoy their rights, several acute social problems are interlinked. If as a child you do not receive sufficient schooling you will be disadvantaged in the job market. If you cannot get a job you cannot improve your housing. Poor housing conditions in turn affect one’s health and also the education of one’s children. And so the vicious cycle persists across the generations.
In other words, a comprehensive programme is needed to tackle all these problems simultaneously. However, there is one aspect which must be given particular priority if the cycle of disadvantage and exclusion is to be broken, and that is good education.
Education
Many Roma children remain outside national educational systems altogether. Even amongst those who do enrol, there is a high drop-out rate, and educational achievement is generally low. One explanation for the educational problems faced by Roma children lies in the high illiteracy levels amongst their parents.
This is the core of the problem and requires more analysis based on relevant data, clearer policies and determined action. It is important in particular to recognise the value to subsequent educational achievement of preschool education. Improving support at an early age can be of great assistance in later years for children coming from a background where there is a limited tradition of studying.
Unfortunately not all preschool education is free of charge. Such schools may also not exist in Roma neighbourhoods, and transport can be expensive and cumbersome.
The improper placement of Roma children in special schools or classes for pupils with intellectual disabilities is another major problem. I have visited schools in several countries where Roma children were placed almost automatically in special classes for pupils with learning problems. This happened even when it was recognised that the child was obviously capable. This discrimination is unacceptable.
Roma segregation in education was addressed by the European Court of Human Rights which delivered a landmark ruling in the case D.H. and Others v. the Czech Republic on 14 November 2007. In the D.H. case, the non-governmental European Roma Rights Centre demonstrated to the Court that Roma students in the Czech Republic were 27 times more likely to be placed in special schools than similarly situated non-Roma. The Court found that this pattern of racial segregation violated the European Convention (Article 14 on non-discrimination and Article 2 of Protocol No. 1 on the right to education).
The Court noted that the Czech Republic was not alone in this practice and that discriminatory barriers to education of Roma children were present in a number of European countries. The Court has made other rulings in this area. In June 2008 it found Greece in violation of the non-discrimination provisions of the European Convention on Human Rights (Sampanis and Others). The Greek authorities had first failed to provide schooling for a number of Roma children, and the following year had placed them in special preparatory classes.
The instruction issued by the Greek Ministry of Education in August 2010 to all school institutions and local authorities that the right to education of Roma children must be enforced is more encouraging. The ministry stressed that education from the age of 5 was an imperative: lack of a permanent residence certificate could not be accepted as an excuse for failing to enrol Roma children; transportation for children living at a distance from the school should be provided; and that segregation from other pupils contravened the Greek constitution.
Quality education for Roma pupils requires material in their mother tongue. Although this is not easy, particularly considering the variations and dialects of the Romani language, efforts should be undertaken to meet this need.
Teachers may need formal training to handle diversity in the classroom. Currently, there are few Roma teachers, and their numbers should be increased. More could be done to ensure that staff who are Roma are recruited to work and teach in schools. Experiments with Roma class assistants in some schools have produced positive results.
It is also important for schools to establish closer contact with Roma parents. If education is to be promoted to Roma children, Roma parents must feel welcome in the school system. If they so wish, they should also be offered basic education themselves.
Employment
Roma adults do not get jobs – they are put in a “glass box”: this was a conclusion of a survey published by the European Roma Rights Centre (ERRC) in 2006. Discrimination in employment was found to be endemic and blatant, especially in central and South-Eastern European countries.

This study was carried out in Bulgaria, the Czech Republic, Hungary, Romania and Slovakia, but the situation has not improved in recent years and there are similar problems in several other European countries. The unemployment rate for Roma is high throughout Europe. Even when Roma have jobs, they tend to be jobs related to service provision for the Roma community itself.

The study also showed that in cases where Roma are employed, they run the risk of discrimination. One in four of Roma in employment reported that their pay and other conditions were less favourable than for non-Roma in the same job.

However, the main problem is that Roma are discriminated against when they try to enter the job market. The study showed that a great number of applicants were rejected because they could be visibly identified as Roma. Indeed, many were openly told that the reason for their not getting the job was because they were Roma.

Another conclusion of the survey was that government-run employment offices were of limited help. The study exposed prejudice and even outright racism among officials in some of these public institutions.

This finding is all the more unfortunate as economic development in recent years has worked against the Roma. Their traditional occupations are no longer in demand and many suffer from low levels of formal education. This is the type of problem for which competent and non-discriminatory public employment services are needed.

Whilst these social and socio-economic factors are real, educated Roma also meet discriminatory attitudes when seeking employment. There is no excuse for states passively accepting problems caused by prejudice.

Housing

In country after country across Europe, a large number of Roma families live in rudimentary habitats.

I have visited poor and overcrowded settlements in several countries, including Bulgaria, Greece, Italy and Serbia. Electricity, running water and sewage systems have been non-existent or inadequate, making hygiene a real problem. I have met mothers who asked how their children could be sent clean to school or could be expected to do their homework in such circumstances.

Families who live on land without permission face extreme difficulties. Roma families have been evicted by force from their homes. In most cases the decisions were taken by local authorities, and the families were not given adequate notice nor offered a real alternative. Even when such evictions have been approved by a court, it is clear that several of these actions violated both European and international human rights standards.

Several serious cases have been reported to me. One took place in Milan in April 2010 when local police “cleared” three Roma settlements, involving more than one hundred inhabitants. Those “cleared” included people who were sick, some with disabilities, pregnant women and children. Everyone was forced to leave but not offered any alternative accommodation. Their homes were then bulldozed.

In the last couple of years, I have received reports about similar police actions in Albania, Bulgaria, France, Greece, Serbia, Turkey and the United Kingdom. In several cases the destruction of homes and property was accompanied by violence and racist language.

An argument often put forward for these evictions has been the need to construct new, more modern, buildings in the same area. However, Roma families are seldom offered places in such new housing developments. Instead, the Roma remain disproportionately represented among the homeless and those living in substandard housing. Roma ghettos and shanty towns can still be found today on our continent.

City regeneration plans sometimes require that people be moved from their places of residence. Such decisions can be justified. However, the manner in which such measures are planned and implemented should be in accordance with agreed human rights standards. Those standards state that forced evictions can only be carried out in exceptional cases and in a reasonable manner; everyone affected must be able to access courts to review the legality of evictions before they are carried out; alternatives to evictions should be sought by way of genuine consultation with the people affected; and compensation and adequate resettlement must be offered when forced evictions prove inevitable.

The monitoring mechanisms of the European Social Charter have found several countries at fault in their treaty obligations regarding the housing rights of Roma. Given some of the appalling housing conditions described above, the European Court of Human Rights has judged that poor housing conditions can amount to breaches of the European Convention’s prohibition of torture and inhuman and degrading treatment. The UN Committee Against Torture has taken a similar position.

In a recommendation from 2005, the Committee of Ministers of the Council of Europe requested all member states to improve the housing conditions of Roma. The best way to stop forced evictions of Roma is to ensure that they are consulted to ensure that their right to adequate housing is respected and put into practice.

Mobilising political will

The marginalisation of Roma cannot be overcome solely with measures aiming at formal equality. The Roma must have effective equality of opportunity with others, and this requires positive measures to compensate for the treatment experienced in the past. Human rights principles recognise that such pro-active measures, when aimed at tackling discrimination or exclusion, are justified – subject only to them being in pursuit of a legitimate aim and being proportionate to the objective.

There is a shameful implementation deficit with regard to Roma rights. In spite of the many conferences and action plans, at both national and European level, progress has been extremely slow. Programmes have been allocated insufficient personnel and financial resources to be effective. When resources have been allocated, they have not been well used. Co-ordination between state agencies and local authorities has often functioned badly. Consultation with Roma and human rights organisations has often been organised as an afterthought, if at all.

Too often the Roma have been excluded from the discussion on how to improve their situation – instead “experts” (gadze) have dominated. This is not a human rights approach. Roma must participate fully in efforts to secure their rights.

There are now local, national and international Roma organisations, and they should be respected by the authorities. The Roma and Travellers Forum in the Council of Europe has faced problems but can be a crucial consultative and standard-setting body for Roma rights all over Europe.

Roma organisations are conducting important discussions about their own responsibilities – in particular how to make themselves truly representative of the community’s diversity (including Roma women, and young Roma). Activists from within the community warn against allowing Roma vulnerability to result in attitudes of victimisation and dependency. The challenge is to transform this vulnerability into an opportunity for equality.

The Swedish writer and Roma rights campaigner Katarina Taikon stressed that these problems are human rights issues:

We are not asking for privileges, only the same human rights as others enjoy. We request the same right to education, the same chance to get a job and the same right to decent housing – not as Roma but as citizens.

We request the same legal protection against assault which others would get. And we do request that generations of Roma who have grown up without housing and schooling and who have been suffering abuse and discrimination by the state and the local authorities receive recognition and compensation.