UN Special Rapporteur on Freedom of Opinion and Expression
FRANK LA RUE, UN SPECIAL RAPPORTEUR ON FREEDOM OF OPINION AND FREEDOM OF EXPRESSION
INTERVIEW FOR THE POLITICAL ASPECTS STUDY OF THE INTITAIVE ON IMPUNITY AND THE RULE OF LAW, 12/2/2011
Highlighted in bold in the text are the passages cited in the Political Aspects Study
On the need for special protections for journalists as a permanent necessity, not limited to conflict zones…
We have always talked in the General Assembly about protection of journalists in conflict, as in Resolution 1738 of the Security Council. I agree, there is an obligation on all states to guarantee security to those civilians that have a special role in conflict, mainly the press and the emergency medical services. But I went beyond that, saying that states have the responsibility of protecting journalists all the time, because there will there be danger for the press not only in those societies where there’s an armed conflict in the understanding of the Geneva conventions, classic armed conflict whether international or internal armed conflict; will the press can also be in danger in countries where they are challenging big corporate interests, or in mining regions; this has happened in Ecuador, where journalists were writing about the oil corporations and indigenous population there; it has happened in other parts of the world when they have challenged politicians for corruption, such as South Korea or Egypt, you name it. So I was trying to expand the idea that protecting journalist is a permanent necessity, not only in those moments of crisis. And we proposed a mechanism there.
There’s a grey zone that’s being created between situations of armed conflict, whether internal or international, and countries in non-conflict situations. I believe there is an intermediate area — partly due to my experience in my own country, Guatemala, but more specifically to my official visit to Mexico. It was a joint visit by myself as UN Rapporteur with Catalina Botelo [the Freedom of Expression Rapporteur] from the OAS. We both went to Mexico concerned about the situation of the press, because of the crisis in the north of Mexico in combating organised crime. I personally went to Juarez. although the government [wanted to] prevent me. I went to Juarez and met with journalists there; and it’s no-one’s land. This is not a classical armed conflict to be considered under the Geneva Convention, but it’s clearly not a territory at peace either. So I mentioned to the ICRC that we should maybe invent a third category — something like “countries where there is a crisis of intense armed confrontation”. That can be due to many things, it can be due to racial strife between different groups, or it can be moments of crisis and ungovernability. It an also be situations like Mexico, where there is a declared war between the state and organised crime and cartels. I believe combating cartels is legitimate.
One of the consequences of such a situation is that then journalists get targeted. In some cases the Mexican government says “Ah, they were targeted by the “narcos”, by the drug lords. But the problem is that this generated impunity, because just by disqualifying the event in that way the state believes it doesn’t have to investigate. This is not true: as long as any victim has suffered the consequences of armed violence it’s an obligation of the state; and even more when it is part of the state policy. There is clearly a war, a military confrontation between the states and the cartels. Beyond that there is clearly a war between the cartels themselves, battling for territory. So the journalists find themselves caught between many fires.
There was an editorial of a daily journal in Ciudad Juarez, which was highly criticised even in the press. It was a letter to the cartels, the drug lords saying, “Let us know what you want, please, because in this [ill-defined situation] our journalists are being harassed, abducted, disappeared or assassinated and we don’t know what to expect from either side”, because they are also being harassed by the security forces. Because in Mexico they have made the mistake of bringing out the military in a permanent way to combat organised crime, which is not their role. The military don’t know how to do it; and specifically the military don’t know how to deal with the press. There have been cases of harassment. The press wants to cover a story and the military are not used to being photographed, they don’t like to be photographed on operations, so there were many cases of detention or breaking equipment; even brutal beatings have been done by security forces themselves. So this is a third area of intense armed confrontation which we have to look at as a specific category – not only for journalists but for human rights defenders and medical emergency personnel.
What positive effect has Resolution 1738, and related resolutions and debates, had on protection of journalists in those situations, and preventing impunity for crimes committed?
I think 1738 had a positive effect in establishing a principle, but I’m not so sure it has become effective on the ground. This is one of my preoccupations,
I proposed at the General Assembly that the same Rapporteur, on Freedom of Expression, who makes a report to the Human Rights Council, should also be called to the Security Council to have a yearly report on Resolution 1738, to see whether journalists in zones of conflict are being harassed or not.
How much support is there for that?
There are different countries looking at it, I haven’t had a response yet. It has to be a Security Council resolution; or it could be a General Assembly resolution, But I believe it is crucial, because the mandate of Freedom of Expression only had a report to the Human Rights Council. Now they have added the General Assembly, because they believe the issue is important for enhancing human rights and democracy. So I believe if it’s seen in that light, and if it’s seen crucial for democracy at moments of transition, there should also be a report to the Security Council, and you could do that with the same Rapporteur. It will probably be after my time but I think the mandate could actually lead to that.
What about the reports through the Secretary-General’s office about attacks on civilians in conflict zones? How effective is that? Should it be strengthened?
It should, we have the experience of Sri Lanka, for instance, where there were not only wholesale massacres of the civilian population, but the press was not allowed in; and the domestic, national Sri Lanka press was massacred, many journalists were assassinated. And we have the case of the Philippines, and I was there in Manila, not all the way to Maguindanao, but I was there on the first anniversary of the massacre– a country where we had fifty people including [32] journalists massacred in one single act, that has to be seen as something very crucial and dramatic by the world. My feeling is we still don’t have that level of outrage in nations, by states.
In practice it can’t be expected, can it, that the Secretary-General’s office will do that, or that your office or your successor‘s office will have that authority, unless there is a political move by states, perhaps backed by Non-Governmental Organisations?
I think it should be done especially by press associations as part of civil society. We have to mobilise opinion, and we also have to engage. When I’ve raised this with states no-one has openly said no. It’s just that in the many considerations of the world this has been sort of set back. Obviously for some countries going through crisis, Egypt or Tunisia for instance, there will be two concerns – the use of the Internet by the public in general, and the role of the press, national and international correspondents. So my feeling is this will change and we will be looking at harsher approaches. So we have to act swiftly to build more consciousness in the UN system for a more proactive role.
What kind of rules would you like to be applied to armed confrontation but not armed conflict in states, in Mexico or the Caucasus, where there is organised violence where journalists and others often bear the brunt?
I mentioned Mexico because it was my latest example, but I believe it happens throughout, and it can happen either because the state is combating organised crime, or because it is different factions of ethnic conflict developing, which eventually should be a concern for the ICRC, but in the initial stages no-one really looks at this, and I think that
For this third category I am trying to build in a role for the ICRC, to have international observers on the ground, who can actually — in a more diplomatic way, as the ICRC does — encourage authorities to protect these people and to establish certain policies and follow certain rules and procedures.
Is that viable for the ICRC, they have certain constraints, don’t they?
Well that’s the point, the constraints are again in the Geneva conventions – specifically the zones of conflict – They do have a category of “mass disturbance”. The term “disturbances” can be applied, for example, to what happened in Egypt, but in Mexico it is a permanent situation, a permanent armed confrontation. Still, it could have the same treatment and attention as in the case of “disturbances”, and a permanent presence of the ICRC
The other point we made to the General Assembly was the idea of creating an emergency mechanism in every country of the world for protection of journalists. This exists in many countries for the protection of Human Rights Defenders, and I congratulate that and I believe it could be done specifically for journalists – where there could be a national commission for protection of journalists, a bilateral commission, of state authorities with representatives of the media, and NGOs working on Freedom of Expression, and I think this is essential, because the experience of Colombia has been very good because they have saved lives through such a mechanism.
the experience of Colombia has been very good because they have saved lives through such a mechanism. It has a budget of its own; they can have a red phone to call the highest authorities, whether it be the Ministry of the Interior of even the Presidency in cases of extreme necessity, to have the order sent to a certain region, and they have funds to fly people out, to hide them temporarily or even take them out of country if necessary So there is a record of such a mechanism working and actually saving the lives of specific journalists.
This could be a great example for the world, of an emergency mechanism of protection of journalists.
But that again comes up against the idea of national sovereignty, so for example a country like the Russian Federation might be unwilling to do that either in spirit or in practice?
No, because it’s a national mechanism. It’s a state-sponsored commission, so it would be part of state institutions, its composition would be bilateral in terms of state representatives and journalists but it is entirely national, so the question of sovereignty or nationalism would not apply. It would be built around a consensus of the world that everyone should have a mechanism, but every one is free to organise their own.
How would you move towards that, other than your own admonitions, and those of other like-minded groups?
I don’t know that I could go much beyond my admonitions, but I did present it in the General Assembly and I plan to repeat it in the next General Assembly. I want to keep on insisting, that this is a recommendation made to the world, I would like to see what response of the world is. Colombia is the best positive example, because it has worked in a country of serious – and it has saved lives. Obviously it’s not foolproof but if you can save a few lives that is worth the effort.
You said in your Human Rights Council Report last year [2010] that the main problem with these attacks lies not in lack of international legal standards and norms but vigorous implementation of existing rules and systemic investigation and prosecution of perpetrators. Is there a case for a new legal international form to enforce compliance?
I think we are making a case for new mechanisms; I don’t think we need new international instruments. I think what we have is perfectly useable, but my feeling is you need the political will of the states and you need specific mechanisms to be put in place. It is very clear that question of protecting journalists is highly political, because journalists are the voice of criticism. So only those authorities ties that are willing to accept criticism will be willing to engage in such a mechanism. But this is exactly the point. I am not encouraging a new conventions or new international instruments. I think we have to move the will of the states to implement what we have.
What should or could be done to induce states to comply with requests for example from the UNESCO Director-General about judicial follow-up, so that states should explain themselves, especially judicial processes to prevent impunity. How would you measure the progress?
I think the situation is quite unsatisfactory, because as I mentioned in my report to the General Assembly, impunity is the crucial issue. One journalist told me, “the problem with Impunity is it multiplies itself geometrically: every time a journalist is assassinated and it is not investigated, it is an invitation to kill not one more, but to kill many more.” And as was said to me by a newspaper editor in Mexico and by a woman investigated journalist harassed by police, and not investigated was harassed I was beaten, I was taken into custody overnight. But the next time something worse will happen, a woman journalists will be raped, will be disappeared, and the problem of impunity is probably the most serious element with regard to violence against journalists. So the idea of having a record of where cases are really investigated, or where the culprits are prosecuted is crucial, and I think that could be perfectly done by UNESCO.
There has to be an agreement between UN bodies, though, to coordinate matters between the Secretary-General’s Office, the Security Council, the Human Rights Council, the High Commissioner’s office and UNESCO – There is often a lack of communication and that drives me crazy, because there has to be a common view and maybe a distributional of role. And having a file on questions of criminal investigation or impunity relating to violence against journalist can perfectly be a role for UNESCO
What about UNESCO Inter-Agency dialogue –what form should it take and would be the ideal end result in your view?
Well, to sit them at a table and get it going. Ironically the lack of coordination has to do something more petty, which is the funding. None of UN bodies like to coordinate because they think they may end up losing their funds. That is ridiculous, we have to believe in the ultimate goal, which is protect human lives and to stop people becoming victims of human rights violations.
What about your informal and behind-scenes activities in international arena. How effective can informal talks, country visits, and pressures on government ministers be – and similar process in UNESCO – such as the Recommendations committee which meets from time to time discuss problem areas, and claims some success in positive direction?
I think it can be effective, [but] I think the biggest force to move states is embarrassment, and I believe that many of them feel very embarrassed when there is a body which has oversight and makes a publication.
For instance, I make two official visits of inquiry each year, but I have created another category, which is the academic visits. For example I went to Venezuela, invited by a University. We had a huge conference on Human rights and Freedom of Expression. It was full not only not only of students but of journalists and I had a press dialogue with the press, in which the only condition I put was that I was not there doing an inquiry, but to talk on matters of principle. But it was very easy for me to mention as question of principle how I believe authorities are becoming more and more sensitive to criticism, and they are trying to use more and more administrative methods like cancelling radio station frequencies, or how they use criminal law like defamation is becoming intimidating, with a chilling effect. So you are able to say a lot in matters of principle that are applicable to every country of the world. So that’s been good. Recently I was in Vienna for consultation where I met the Minister of Communications in Hungary, and I got an invitation to look at new legislation which has been highly criticised especially by the European Union and especially the European Parliament and other sectors, and I think this is time to get moving on this.
Regional bodies also play a role. In Europe the Fundamental Rights Agency (FRA) is more and more active, clearly they are giving it more funds and moving it into play a bigger role; the courts of course as well – the jurisdiction of the court. In the same way as the regional Human Rights bodies led to a human rights system in the Americas; and the African Court. And now the ASEAN region has established, timidly, its own Human Right Commission, very much organised with representatives of governments. But that’s a first step, at last they now have a regional commission.
What response do you hope for, for the mechanism which you called for last year, concerning the most troubled countries, such as Pakistan, Iraq? Has there been any progress?
In many of those countries there has been a narrowing effect, in terms of restricting freedoms of the media and allowing freedom of expression. But there is a positive side. I have been invited by Algeria to visit, they are about to pass legislation so I gladly accepted. I have been in Egypt recently right before the Arab Spring, for regional consultation with NGOs . There were people from Tunisia people and other countries and Middle East; so I understand this is an issue which is growing, partly because of new media, technologies and communications, and the role of citizen journalists. I don’t think any blogger is a journalist all the time, but there are moments of crisis when they become a journalist, when they are systematizing information.
There can be confusion about who exactly is journalist, and you mentioned putting journalists into the same category of H R Defenders – How do you address that issue? The big debate now, this is the same from Hungary all the way to Ecuador, where the president wanted to establish what he called a Truth Commission of the Press, to verify the objectivity of the news before it was published. I had a long conversation with him, and he said: “But don’t you think press has to be accountable?” And my response was “Mr President, yes, I do think the press has to be accountable, but it is accountable to the public, not to the government; because if you want to make it accountable to the government that becomes censorship.” And same thing is happening in Hungary. The law seeks to have a media-regulatory body which maintains objectivity and professionalism of the press. Those are things we all want to see, but it will depend on readers or public or press itself. We have a gauge, and I say this in my General Assembly Report, we encouraging the press to establish new ethical standards that take into account the multi-cultural, multi-religious, multi-ethnical identity of the world, which means that a journalist has to make an effort to get some knowledge of the different cultures and developing an attitude of respect. We have said that we should not try to use criminal law to limit critics, like defamation of religion, but we should on the contrary enhance Freedom of Expression and the free flow of ideas, so that peoples of different parts of the world can develop better understanding. And this I think is the crucial element to maintaining a degree of peace but also of cultural respect and democracy.
So one [aspect] is a call to the press [for high standards] but the other is to eradicate the notion that because the press should be accountable to the public, the government should in some way make it accountable, because with the best of intentions that any government may have, it will end up becoming censorship. We should not use the Commission, as I said in my discussion with President Correa. He said, “Well we can make it a Commission of responsibility, we can do it afterwards… I said it’s the same – it still has a chilling effect – But he said “The press conspires against me” I said it’s probably true, many of these newspapers represent big economic interests, but it’s not by limiting that they you will win the debate. I stand clearly, strongly, stand on the side of no intervention of the State. The confusing element is Article, which says that the state has the obligation to prohibit incitement racial religious or linguistic hatred hostility violence, and I think, yes, the state has the ability to prohibit this, not everything should be done through criminal law, it can also be done by prevention – often governments themselves generate throughout Europe – concerning Roma governments are generating hostility, an atmosphere of intense xenophobia. So we have to look at these as the exception to the rule, where they can limit. In general, states should not intervene in media, and should allow free flow of ideas.
Could you explain the protection for Human Rights Defenders, and in what way it might be extended formally to include journalists or others exercising their freedom of expression?
I don’t think it should necessarily be included in the same mechanism, but I believe a parallel mechanism could be formed. Human Rights Defenders as a concept has now been widely accepted, though there is still a question about who exactly is a Human Rights defender – and who exactly is a journalist. First of all there’s usually a self information-gathering process; in all countries Human Rights defenders themselves are gathering information. Then you have international federations like Frontline, or the International Federation of Human Rights which are maintaining that issue.
So self-forming groups? Yes but out of that in extreme cases you can build a dialogue with the state, which is what you want. Any form of dialogue where the state can be made to see that these forms of harassment are happening.
In the case of journalists, sometimes not even the journalists associations are doing that. In the case of journalists you have the CPJ or Reporters Sans Frontieres, which do an excellent gathering information. We have to build out of that a dialogue with states, an information mechanism.
What defines a journalist?
For me journalism is the freest of professions, it has no pre-requisites of academia or registration or identification or state identification, or professional association; of course journalists associate voluntarily but it’s not a not a pre-condition. What makes a journalist, I think, is a person who works in gathering and systematising information to make it easily accessible to a particular sector of the public. So I think bloggers can play a role for example in a natural disaster – Haiti bloggers or political disasters like Tunisia or Egypt, where we found people were gathering systematising information to inform the public.
A radical approach might be, through UN or international system, to give civil society, genuine experts, some kind of role in overseeing the behaviour of governments. Do you see any prospect or merit in any part of UN system, like UNESCO, moving to give a more formal authority to the Non-Government sector?
I think all bodies of the UN should give full recognition and give voice to all NGOs, including NGOs or those that work for Freedom of the Press in their debates and mandates; but I think where the contribution of UNESCO can come is that UNESCO has first a track-record of expertise but also the structure and funding to have a verifiable record of issues. So on this question of impunity in particular, or violence against journalists, and which are taken to trial or not, or for a potential mechanism, yes, UNESCO would be appropriate body to build such a record to be shared with the governments themselves. Many won’t like it, but then you have centralised way of gathering all this information. I would certainly encourage that idea.
What additional authorities would you wish your Office to have in order to counter impunity?
For the special procedures, the mandate-holders, there has to be more structural support. For instance, we have no salary, no wage because it’s a voluntary job, which is great, which is part of the independence, but what is not so god is that you have no funding beside that either, for investigation, research to gather information
You get two trips a year, paid, because in any UN trip expenses are covered — travel and on location. But that’s not enough. If you look at UNESCO, it can produce all that information because they can hire consultants and hire people to do investigations there is a total lack of resources. They are creating more and more mandate – they just created a mandate on freedom of association which I certainly encourage; but you basicly have an individual, a person dealing with the mandate. This is something that any mandate-holder will tell you
On the question of impunity, I believe that we need a place to have records, files, to systematise. For example, I would like to send a form to all the governments talking about legislation on Internet, and what criminal legislation they have and also what are other limitations to Internet, if I send you if you did, you still need process that information. We have one assistant in Geneva and no office. So it’s asking for the impossible unless you are able to organise. So there has to be reconsideration of the UN in terms of those backup mechanisms.
What about the Universal Periodic review (UPR)?
For me the UPR is part of the weakness. The Council was a great step in terms of improving the standard of human rights within the UN system, but it has generated many mechanisms that are less specific, for instance they are doing away with the country Rapporteurs in favour of the them the thematic ones. I understand that they don’t want one-country Rapporteurs because they said that was selective and discriminatory – but then you need the possibility of doing research, because as a thematic Rapporteur you look at the whole world; so one needs to have counterparts and support, using the UN system, including information-gathering from different offices and regions, to have a different form of structure.
My feeling is that the UPR became a substitute for not having country Rapporteurs. The UPR is a good idea in itself, but the UPR is done through ambassadors, two ambassadors, the troika is three ambassadors of three other countries. So what you have is peers, and they may be constrained in criticising others, because it depends what the policies of their own country are. And rapporteurs are not invited to the UPR. If we have just visited a country in that year, it would be logical that we have a very clear fresh perspective of that right or particular issue in that country. Rapporteurs should be invited to the UPR, to be able to put questions themselves to the state in question. The Rapporteurs have normally given a series of recommendations to find out whether those were received well or heeded or taken into account, or not.
So I think the UPR has become a toothless lion. It is important, because everyone goes through it, and there is an exchange of reports. But the international media hardly pay attention, because there are never tough questions. And it’s not binding anyway.
