O'Flaherty: state of human rights in Europe 'worst in my professional life'

The current state of human rights in Europe is the worst ever witnessed by Michael O'Flaherty — the commissioner for human rights at the Strasbourg-based Council of Europe.

"What's new, and which makes things all the more disturbing is the extent to which people in power are willing to distance themselves from human rights obligations," he said, in a 30-minute interview with EUobserver earlier this week.

O'Flaherty discusses some of the most pressing issues under his radar, from attacks against civil society, the roll-back of asylum rights along the EU's external borders, and the plight for peace in Ukraine.

Before taking up his role at the Council of Europe, O'Flaherty led the Vienna-based Fundamental Rights Agency.

EUobserver: Why are you in Brussels?

Today's World Press Freedom Day and so UNESCO organises this annual event, and for their own reasons, they brought me to Brussels this year.

But I'm delighted to participate because I have a strong traditional media and journalism is something we have to fight to uphold. The idea of a few short years ago that we were going to migrate to citizen journalism has some merit, but never at the expense of or in substitution of classic professional journalism.

So I have to stand up for that and the human rights of journalists, just like anybody else.

Human Rights Watch has a critical report on the state of media freedoms in Greece. Have you already done anything on Greece when it comes to...

Media freedom? No. My work in Greece has been migration and also the situation of the Roma communities, the latter because I'm doing a Europe-wide examination of the situation of our 12 million Roma with a view to somehow moving forward a bit in the efforts to do a better job of respecting their human rights.

We knew you as someone who was with the Fundamental Rights Agency and now you're with the Council of Europe. Can you explain to us what are the major differences between what you did there and what you're doing now?

The central difference is that while I was at the Fundamental Rights Agency, I was running an EU agency with all that involves in terms of management, as well as representation in a context of very high demands from the European institutions for data on the basis of which decisions could be made.

And so, in large part, not exclusively, but in large part, the Fundamental Rights Agency is a data-producing operation which invests heavily in things like EU-wide surveys.

That's really very different to the job I do today.

My current function as the commissioner is essentially a diplomatic function using the tools of diplomacy, which are essentially words to encourage and persuade and work with our 46 member states to do a better job of upholding human rights.

There's another difference in that it's all human rights. It's not just that fairly narrow band of rights that the so-called fundamental rights that the EU is upholding. My mandate is a much broader one in terms of the material covered.

You mentioned Greece and migration. Is there some space for diplomacy in Greece for them to be more receptive to your ideas and criticisms?

Of course there is. The first thing is, diplomacy yields results only with persistence and only with impeccable analysis.

If you're found wanting in your facts, or in the legal implications of those facts, you undermine yourself. So you have to go very, very carefully.

You also have to send different messages to different communities. So one set of messages for governments, one set of messages for civil society and so on.

You have to build up alliances. For me, a very important relationship is with the Human Rights Commission of Greece and the Ombudsman of Greece. These are my natural partners on the ground. And together, we can achieve things.

So there's an interesting work being done in Greece around independent monitoring on the borders and I'm closely associated, I'm not doing it, but closely associated with that.

And indeed, I'm calling for independent monitoring on, let's call them, on troublesome borders right across Europe. And we need to make progress there. It's called for in the migration pact as well, the EU migration pact.

And of course, another dimension of the diplomatic tools is working, not just bilaterally with the government, but working multilaterally with the community of member states.

So just last week, I actually presented my annual report to the Committee of Ministers, which is the governmental oversight body of the Council of Europe, and it was debated there. And so we debated issues like migration, as that you've brought up, but also Ukraine, which is a huge concern of mine at the moment.

Ukraine?

We have built up over decades a way of making peace, which carries with it a concern for human beings, and I don't see any of that acquis of knowledge and of expertise and of experience visibly being applied in the context of the great power negotiation that seems to be taking place right now.

Where are the people? And by the way, when you see people, where are the women? You look at pictures from Riyadh, you won't see any woman, any women in these pictures.

So, I've issued a, I guess it's just a category of things I produce called 'shout outs' and I've done one on putting humans back into the heart of the path to peace for Ukraine.

And it has 10 elements, and it's, you know, nothing in there is rocket science. It's just bringing together, what we've learned over the years.

You work on accountability, including criminal accountability. You very sensitively plan for the return of IDPs [internally displaced people] and refugees. You embed human rights in the reconstruction efforts. You come carefully and consequently out of a situation of martial law.

You ensure women are involved in the process. You know this UN resolution 1325, women, peace and security? So women have to be integrated.

And you have all the right people at the table. So you have Ukraine at the table, obviously, but you also have those bits of civil society, and you have the relevant international actors, like the human rights specialists.

So my task now is to challenge everybody with an interest in the future of Ukraine to work on ensuring that these 10 elements will be embedded in whatever, I don't even call it a peace process, but whatever the pathway is, or will be, towards peace in that country.

Why is this acquis not being applied by the great powers?

Look, you have to ask them that, come on. I have no idea. I learn about steps towards peace for Ukraine from the media. I don't have any inside track.

But there are many states that may not be playing a core central role in working towards peace right now, but which will inevitably be involved.

There are important initiatives on reconstruction, for example, from Italy. There are very serious efforts to look at the future, facilitated by Switzerland.

At some point, the Council of Europe, well, the Council of Europe is already very involved in one thread, the thread of reparations and of criminal accountability, above all, for the crime of aggression.

The UN will be at some point invited to become more...well the UN was already engaged, it has a very good monitoring mission, human rights monitoring mission on the ground. It has conducted a commission of inquiry investigations.

But I have to anticipate that it'll be at a certain point, it'll have the opportunity to become more engaged. Sorry, it's also doing a fantastic job of supporting internally displaced people.

So I need to remind everybody, states like the ones I've mentioned, the international organisations, that there are these 10 elements, and we have to pay attention to each and every one of them if we're to have a peace that's sustainable and honours humans at its heart.

You mentioned these countries and institutions, but you didn't mention the United States. Is Donald Trump a force for good in resolving this conflict?

I'm not, I'm not going to make some kind of moral judgment about the US administration.

I'm taken aback by the transactional nature of what I'm reading. I'm disappointed by the absence of reference in public statements to human well-being and human dignity.

And I think that the vast acquis of how to build a peace that we have accumulated over all those decades needs to be drawn from as Ukraine moves forward with Ukraine and its government and its people always at the heart and in the lead.

To what extent have these institutions, and you mentioned Switzerland and some of other countries, been receptive about your ideas?

The reception of these ideas has been good so far.

I discussed exactly these points with the ambassadors of the member states just last week. It's not even a week ago. It was Wednesday of last week, and I, there were a lot of expressions of support for the ideas in this paper, and my efforts to try and bring a light to bear upon them

You mean the ambassadors for the Council of Europe?

Yes, yeah.

Planning a report on Roma?

I consider that one of the most worrying human rights situations on the European continent is the plight of its Roma population.

For the Council of Europe, it's something like 12 million people, and across every imaginable indicator...they're seriously lagging behind the general population, and they're subject to shocking degrees of racism and exclusion.

The challenges vary enormously for these communities, I should say Roma and Travellers, the Irish Travellers.

They range from impunity for police violence against them, through shocking suicide rates among young people to to living in some places in Europe, in the worst slums I've ever seen.

And I've worked in the poorest countries world, when I used to work for the UN. I was not expecting that I would be in a European neighbourhood, I would see slum conditions of a degree that's absolutely appalling and, frankly, inexplicable.

Can you give a specific example?

You know, I don't want to pick out. The reason I don't want to pick out an example, I could easily do it, but the reason I don't want to do it is because I see these problems everywhere, and I don't, I don't want to give the impression that we should focus on this or that country.

The challenges are enormous everywhere. There is no country in Europe that has somehow come to grips with the challenge of delivering genuine respect for its Roma communities.

There are some good practices in some places.

I was in North Macedonia a few days ago last week. And there, for example, I saw two things that impressed me.

One is Roma women in senior government positions. That's really important to give leadership roles in society and to Roma women, by the way, that's notable because often I find that the best ideas in the Roma community, the best energy, the best vision of how to move things forward, comes not from men, but it comes from women.

The other thing that impressed me was that they have a very serious drilled-down, comprehensive action plan to promote the human rights of Roma. Why is that notable? Because unlike for EU member states, they're under no obligation to do it.

EU member states have to have an action plan to gain access to the relevant resources of the EU. North Macedonia is not in such a situation, and still, it took upon itself all of the obligations and the implications of such a planning exercise.

You mentioned the action plans about [EU] member states. I think this has been going on for like, over a decade, but just you're still seeing worrying trends?

I'm seeing a persistence of very worrying situations. There have been some modest improvements. Early childhood education, the EU will tell you, in fact, the Fundamental Rights Agency from its surveys that there have been some improvements for small children and early childhood education. There have been some improvements in educational outcomes.

Undoubtedly, in the last few years, we've all seen a strengthening in many places of Roma civil society. Ireland, for example, where the Irish Traveller community has become a very sophisticated dimension of civil society in terms of it, analysing what's needed and advocating to receive it.

Amnesty International came out with a report about the global state of human rights. They described it as shocking. How would you describe the state of human rights in Europe in general?

The worst in my professional life. There are multiple elements.

First, there's the war of aggression. You'll never forget that just a few hundred kilometres from here, a war of aggression against another state is being waged with unspeakable consequences for humans.

And the second there, there are very worrying levels of human rights violations in many places. But that's not new.

What's new, and which makes things all the more disturbing is the extent to which people in power are willing to distance themselves from human rights obligations.

This was already very disturbing when we saw it in countries where democracy already seemed to be under threat, and where populism seemed to be getting a foothold.

But what's all the more worrying recently, and I literally mean in the past year, is the extent to which the political middle ground is also willing to say that when human rights get in the way of public policy objective, that they'll go ahead nevertheless.

That's what we're seeing on the securitisation of the borders with Belarus and indeed the Finnish border with Russia, where it is considered.

It is considered that such precious human rights as the right to apply for asylum and the duty not to commit an act which could run the risk of refoulement, that these can be put aside.

I have a genuine appreciation for why the impacted countries are securing their borders. The Belarusian authorities, for example, are instrumentalising migrants. Nobody challenges that. That's a given and the bordering states are entitled to respond.

But what I don't understand is why they consider it necessary to include in the package of responses violations of their international law obligations.

They can secure their borders without risking refoulement. They can secure their borders without removing the right to apply for asylum.

You know, these countries have the capacity, they currently have the capacity, to catch people who cross their fences, round them up and bring them to a border crossing and send them back over the border.

So why can't they use that capacity to round them up and bring them to a reception centre where a proper, serious vulnerability analysis can be done and where people who wish can apply for asylum?

And you know, if people don't qualify for asylum, you're entitled to return them to their places of origin.

So it's not as if it's...I'm not advocating for a global free entry, whatever the word is, a free pass. Just the opportunity to apply be considered and then carry the consequences of success or failure.

Will you do reports on these as well?

I already have. I wouldn't call them reports, but I've done public statements in multiple contexts. If you look on my website, you'll find letters to governments, the Polish government and the Polish parliament twice, and to other governments.

They're all public, as are the responses of the states.

I've also done a very detailed critique of the practices on the Belarus border in the form of an intervention to the European Court of Human Rights. And again, that's on my website. So if you go to the website, you'll find a lot of country-specific information.

Is there any other particular subject that you want to discuss?

I'm very concerned about the situation of civil society in multiple European countries at the moment.

The issues of civil society have kept me very busy since I took up this job, much more than I had expected. I've had to intervene, excuse me, I just want to get the figure here, I don't want to be inaccurate.

I've intervened in 10 countries. I'm going to check that number just very clear it's right, in 10 countries since I took up the job, and, excuse me, yeah, 10 countries since I took up this job to deal with a plethora of issues.

The first one is the so-called foreign funding laws which are which, which are not the benign oversight laws that governments would typically present them as. They're highly discriminatory, and they serve to suffocate certain organisations, and as a contagion of them.

We saw last year in particular, how the laws were very close to almost identical to each other in a number of countries.

If you look at last year's legislative developments in places like Slovakia, Hungary, Georgia, Republika Srpska in Bosnia and Herzegovina.

They're still a big worry, but they've evolved now. In some countries, they've been pulled back like in Georgia and some other legal frames have been substituted, such as laws on lobbying, but which actually served a purpose.

Or, as we've seen also in Europe recently, some governments have stumbled on the 1938 FARA [Foreign Agents Registration Act] law. It's an American law 1938 it was adopted to deal with Nazi incursion into US affairs.

It was designed for a very specific context, and now it's being used in widely differing contexts in Europe. Here we are, what is it, 80 years later?

And again, it looks to me like another instrument to close down the operation of those bits of civil society that might annoy the state.

Another dimension is that some particular communities are being especially hard hit civil society, I mean, and I think of the LGBTI communities laws in, for example, Georgia, and there's a family values law that was adopted in Georgia, which is, which is irredeemably oppressive.

And then the last dimension, this non-exhaustive list of why I'm very worried about civil society right now is the impact of the departure of USAID and the loss of the resources that it provided.

I have met with organisations who tell me that they'll have to close where they've lost 50 percent or more of their income without any planning, without any warning, typically in places where they're most needed. The impact is similar, by the way, for small, independent media operators.

And then one dimension, one further dimension of the departure of USAID, which was brought to my attention only last week, is the the fact that in in Serbia, NGOs told me that they had been raided by police, and when they asked what the context was, they were told, and I have this from the NGOs, they were told that the American government says that USAID was corrupt, so we have to check to make sure that you're not corrupt.

So this is a scary further dimension. So why do I care so much about civil society? Because it's the blood of any society. Without civil society, services don't get delivered without civil society, our authorities don't get challenged to do a better job. And by the way, from the context of human rights, without civil society, we don't have the bright ideas that advance the human rights protection systems in the way that they've developed over all those years.

Excellent. I think that covers a lot of it.

Maybe ask me one question?

You mentioned the LGBTI in Georgia, but what about Hungary?

I'm very concerned about the situation in Hungary.

I'm just so concerned about the extent to which these communities are being targeted for no obvious reason that I saw, no obvious social good.

These are small communities. Think of the community of trans people, for instance, tiny and all they want to do is live their lives at peace in their own identities. And yet they're being, they're being scapegoated and almost a proxy for so many things in society, in a way that's hideous.

And they're committing suicide, and they're, they're suffering depression, and they're, they're hiding, and they're suffering from a lack of access to the necessary medicines and medical facilities. And this is, this is a violation of human rights at its most profound.

Maybe just a final question on civil society. There's a debate in the European Parliament about withdrawing funding from NGOs, especially by the far-right, over possible fraud, corruption. Have you come across this debate at all?

The first thing is, debates need to be evidence-based. So show me the evidence of these patterns with regard to which civil society stands accused.

Second, I mentioned earlier, the extent to which civil society is the oil in the engine, the lifeblood of our societies. How could any parliament envisage doing its job without a healthy, vigorous, engaged and sustained exchange with civil society?

Third, the relationship of civil society to a parliament is a subject of legitimate interest, but it has to be in the interest of serving democracy, and not of repressing an essential voice.

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