A dishonest attack on UN human rights mechanisms

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On 1 May 2021, I received an email from Dr Grégor Puppinck of the European Centre for Law and Justice, requesting to interview me as former Special Rapporteur of the UN Human Rights Council. The purpose of the resulting report by the ECLJ was presented in a way that would appeal to many a Special Raporteur:

As you may know, we are expecting  a debate on the Special procedures during the next June Session of the HRC. This could be a good occasion to ask for more support from the Member States. The ECLJ wishes to mobilize civil society to demand a stronger institutional support for Special Procedures. To this end, we are conducting a survey of all mandate holders since 2015 on the material conditions in which they have carried out their mandate.

Having read and critiqued an earlier report by Puppinck and the ECLJ on the judges of the European Court of Human Rights, I decided to accept the invitation.  But I also tweeted, saying that I hoped the interview request was made in good faith, even if I could not exclude the possibility that the ECLJ would actually lobby against UN Special Rapporteurs engaging in raising funds for their work, including through reputed academic institutions.

Now that the report is out, we can see that it represents anything but good faith. The declared purpose of the exercise and any degree of trust special rapporteurs may have extended in engaging with the authors, were abused to serve a very different mission that now ex post facto is clearly expressed in the report:

As the result of this study, it appears that the propositions to fund and directly support Mandate-holders is often aimed at guiding their action, or even framing and controlling it. It therefore significantly undermines their independence. Almost all the experts interviewed share this observation; some of them used the word ‘corruption’ to describe this phenomenon. (page 10)

The references to “almost all” or “some” or “one” remain vague and not identifiable. There are errors in the report in little things and in fundamental matters. The answers received are not accounted for but the reader is offered a set of unfounded generalisations that only represent the views of the author of the report but that in ambiguous language are, from a reader’s perspective, attributed to the special rapporteurs, or “almost all” of them. The reader is made to understand that the author is protecting the interviewees by carefully hiding their identity, which of course results in a high degree of intransparency as to whether what is attributed to an unspecified subset of special rapporteurs reflects anything actually said by any of them.  The central recommendation of the report does not come as a surprise, namely:

That any extra-budgetary funding for the Special Procedures must be paid directly to the OHCHR, and any direct funding going directly to mandate-holders must be banned; (page 50)

I spent an hour with Dr Puppinck. Being a professor, I tried to educate him about how special rapporteurs perform their duties and how eventual fundraising to support their mandate actually happens. This was to no avail. The report claims for instance that special rapporteurs would personally and “directly” receive “cash” from donors, that universities would create “special bank accounts” for them, and that there would be no accounting. This is all false. What I explained through the example of my own six-year term as special rapporteur is that a university creates a project to support the mandate, applies for and receives eventual grants from governments or private donors, spends every penny as official and approved university expenses, subject to preexisting regulations concerning fundraising and spending, strictly uses exclusively the university’s general bank account, and provides full accounting and financial reports. Over my six-year term, my university raised grants from eight governments, allowing it to employ a full-time research assistant, to run a series of annual expert workshops on thematic reports under preparation, to recruit occasional short-term consultants where special thematic or country expertise was needed, and to supplement the limited travel funding provided by the UN, usually by including the research assistant in country visits and trips to appear before the Human Rights Council.

Nothing of this went into the ECLJ report, not even as an example of good practice if Puppinck thought my case was not representative. After the interview I received a polite email that included a set of poorly transcribed quotations from me, for potential citation in the report. I corrected the errors and accepted to be cited accordingly and with attribution. Not a single one of the quotes made it into the report.

As is now mentioned in footnote 11 of the report, I contacted ECLJ and asked for a rectification. The resulting text in the footnote reads: “The ECLJ sent the report to all the experts interviewed. Martin Scheinin sent an email on 11 August 2021 expressing his disagreement when the report was released, saying his answers were not reflected. In 2020, he had already publicly attacked the report on NGOs and the ECHR Judges.” It is quite telling that the authors felt a need to combine the rectification (without mentioning the substance of any of the quotes) with an ad hominem argument: because I had criticized their unfounded and biased earlier report that attacked George Soros and several judges of the European Court of Human Rights, not letting my interview influence the content of the new report was apparently the appropriate thing to do, even though it was ECLJ who had asked me for an interview for the new report while being fully aware of my views of their previous report.

This report is a sad example of the post-truth world we live in, where the presentation of “alternative facts” is fine, even when one gets caught, because falsehoods serve a political purpose that may prove successful. I am sure authoritarian regimes will not miss the opportunity to discredit the system of special procedures of the Human Rights Council, or to impose new constraints upon the ability of the special rapporteurs to perform their function, and to do so by invoking this report. Human rights will suffer, but someone will win.

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