Unjustified criticisms, suspected of arising from manipulation and conscious lies, and indicatively attributed to Spanish diplomacy, have proliferated against the UN Working Group on Arbitrary Detention (WGAD), after the Group's five independent experts called for the release -at the end of May of 2019- of three Catalan pro-independence leaders jailed in Madrid (Jordi Cuixart i Navarro, Jordi Sànchez i Picanyol and Oriol Junqueras i Vies). (1) The person who made these unlikely allegations is none other than the anti-independence Catalan politician Josep Borrell, [then] head of the Foreign Affairs ministry of Spain, now expected to take on the role of the High Authority of the European Union's (EU) foreign policy.
However, the WGAD does not appear to be intimidated. It has just announced a similar decision in favour of the freedom of four other pro-independence Catalans detained (Joaquim Forn i Chiariello, Josep Rull i Andreu, Raül Romeva i Rueda and Dolors Bassa i Coll), who are all awaiting sentence together with the said 3 leaders. (2) This second announcement occurred coincidentally last week, just before the Venezuelan President, Nicolás Maduro, released by decree Judge Lourdes Afiuni Mora, whose freedom had been demanded by WGAD for ten years.
Some documents that have transcended, hypothetically originating in the current Spanish political power, accuse the WGAD (or Ben Emmerson, the British lawyer of the seven prisoners who filed their cases at the UN) to have unduly distributed, at least the first of the two decisions referred, among the press. These had originally been communicated by the UN, by fax, on the 27th May 2019, to the Permanent Mission of Spain to Geneva. The said decision was sent by the same means two days later, that is, on the 29th May 2019, to the aforementioned Ben Emmerson, in line with UN Human Rights protocols for notifications of this nature: it is sent first to the State affected, and 48 hours later to the "source" that raised the claim. In the morning electronic edition of 29th May, El País of Madrid explicitly admitted that the "text (...) was sent to Spain on 27th May". (3)
The journalistic uses and customs at the European headquarters of the UN in Geneva show that once these two parts have been notified, everything can be made public, thus the document can be then consulted on the website of the Office of the High Commissioner. As far as it is known, two Spanish media initially gave the news on that same 29th May, 2019 early in the morning. (4) How can there have been a leakage then, of an allegedly secretly circulated text by the government itself, on the 27th or maybe 28th May, 2019, one or two days before it was received by Ben Emmerson? Could it not be that the fake accusation of violation of an alleged secret had been made by a hypothetical official hand, conjecturally linked to the government of Pedro Sánchez, who had maliciously spread the documents with the perverse objective of subsequently attributing the UN or the defence of the prisoners the responsibility of irregular breaches of confidentiality, so that in this way both the UN and the Catalan pro-independence movement could be discredited?
The president of the UN WGAD, José Antonio Guevara, came into play at this disturbing maneuver. He confirmed that he had asked the UN High Commissioner, Michelle Bachelet, at the Geneva headquarters "special procedures" office of the United Nations (Rapporteurs and Working Groups on Human Rights) for an investigation to review the dates and recipients of the communications. It should be clarified that those working there are exclusively the experts' assistants, who are UN officials, have a salary, and are subject to observing the rules of confidentiality. However, if in doubt, it must be added that the experts themselves do not have offices at the UN, they are not employees, they live in their own countries of origin or residence, and the United Nations only covers for their official attendance and visits fees. These experts are elected by the UN Human Rights Council in Geneva on the basis of their skills. The council is composed of 47 of the 193 Member States, designated by the secret vote of the United Nations General Assembly in New York, which rotates and renovates one third of its members annually, and of which, in addition, Spain is presently a part.
By definition, human rights, which constitute the ideology of the UN, are universal, indivisible, interdependent and they are interconnected. They are civil, political, economic, social and cultural rights
Shortly after the first news was announced - concretely, on Friday, 31st May, 2019 -, the Spanish ambassador at the UN headquarters in Geneva, Cristóbal González-Aller, sought accredited journalists at the Palace of Nations to tell them that Spain would request the "inhibition" of two of the five WGAD experts, Mexican Jose Antonio Guevara and South Korean Seong-Phil Hong. He underlined: "We will ask for the review of that opinion," as the rulings of these UN instances are called, destined to be abided by the States, and he reported: "24 hours on, leaks in the press had already occurred, and the first media that informed of the news was a Catalan online newspaper. "An ample programme of intrigues! (5)
The ambassador put on the shoulders of these two WGAD members a kind of pollution, or "conflict of interest", with lawyer Ben Emmerson -legal representative of the persecuted Catalonian pro-independence leaders in their allegations brought to the UN-, for having signed previously, jointly or separately with Guevara and / or Hong, public statements in favour of cases or situations under the jurisdiction of the UN, in Egypt and Guantánamo. All this had happened during the period in which Emmerson acted as a UN rapporteur for the respect for human rights and the fight against terrorism between 2011 and 2017, that is to say, previous to his being appointed lawyer of the captive Catalan leaders before the UN, starting on 1st February, 2018. A period of time when the then rapporteur Emmerson had coincided with the two members of the WGAD, appointed 2014, in joint missions.
Spanish Government delegate before the UN, Cristóbal González-Aller, did not provide the press in Geneva with any documentary evidence of the issues mentioned verbally related to Egypt and Guantánamo in his unexpected visit. He also did not identify the "online Catalan newspaper" that would have exposed the news that had intimidated him so, presumably "24 hours" after the news were received by Spain; It must be said that it was on the 28th May, 2019, a day before the UN sent it to Ben Emmerson's email in London, which is why he is above suspicion of filtering the UN "opinion" of discord. It is curious that the ambassador's superiors were unaware that Emmerson was the lawyer of the Catalan pro-independence leaders who were deprived of their liberty as of 1st February, 2018, when Emmerson proclaimed in a press conference in London that he was resorting to the UN WGAD to attain the liberation of his clients. Spain also knew that Guevara and Hong were in Office since 2014, because it was public and well-known.If Spanish authorities wanted these two to be removed from the process of decision on the matter, they should have quickly made an appeal, and not waited for the final decision and then be offended because it was not in their favour.
The diplomat could not have been unaware that only the authors can amend or withdraw a report and only if so mandated by the UN, and that no government is in a position to annul it. The State involved can only reject it. If by any chance Madrid is tempted to expel experts, they should know that this has never happened before, neither in the UN Human Rights Commission nor in its successor and current Human Rights Council of the UN. This was tried in vain in 2013 by the then Argentine president, Cristina Fernández de Kirchner, who suffered a resounding defeat. She tried to expel the UN rapporteur for the independence of judges and lawyers, Brazil's Gabriela Knaul, who had warned about some suspicious points of a bill that was being discussed at the National Congress in Buenos Aires, regarding some judicial reform, which apparently sought to restrict precautionary measures against the State and compromised the independence of the judicial institutions. (6)
In fact, the claim of the Spanish delegate is, on top of it all, ridiculous. By definition, human rights, which constitute the ideology of the UN, are universal, indivisible, interdependent and interconnected. They are civil, political, economic, social and cultural. The entitlement to one can not limit the entitlement or enjoyment of the others. In this context, the fifty rapporteurs or members of Working Groups on Human Rights available to the United Nations often issue joint statements when they face an issue that requires it. It is not acceptable to bring something to light without identifying with precision what it is, those who were involved or on which date, in the absence of a valid basis for questioning.
Worse still, when a few days later, at the annual meeting of rapporteurs and presidents of working groups with the States, on Friday, 21st June, 2019, it became known that in Hall XXVI of the Palais des Nations in Geneva, with the press excluded, Spain had proposed that a lawyer who has been a rapporteur or member of a UN working group should, for a defined period, be prevented from working fully as a lawyer for the human rights groups of the United Nations. Ben Emmerson's ghost must have stirred in the audience. Instead of it being a distinction to hold these positions, which are unpaid, the lawyers who accept them, are being penalised with periods of forced unemployment when they finish their 6 year mandate. People who, in the meantime, need to earn a living off their profession as anyone else. A profession which they evidently do not totally abandon in order to work with the UN, even when they had to take any private assignments to do with supranational organisations, as a condition to accept the pro-bono nomination.
The transitional justice of Spain leaves much to be desired. It is reluctant to abrogate the amnesty law that laundered the atrocities of the Franco regime and to investigate the disappearances in those "dark years", in spite of the repeated exhortations of the United Nations
At the end of this meeting, concurrent voices indicated that Spain introduced two other complaints in their exchanges with the holders of "special procedures", so as to reform the code of conduct by which the experts are guided, in a retardatory and coercive sense. On the one hand, it proposed that the experts should be forbidden, in cases with human rights cases underway, from advising or participating in trials to assist in the defence of people being held in arbitrary detention. Apparently this was due to the fact that, by mistake or without consulting, in Spain, members of the WGAD had appeared unknowingly on the list of 150 witnesses proposed by the defenses of the Catalan pro-independence leaders who are being tried in Madrid. And on the other hand, Spain would have circulated the idea that when the rapporteurs or the working group visit countries, obviously with the agreement of the host government, and at the time of contacting the victims and/ or any other person they wished, they should also accept to meet with anyone proposed by the local authorities, which is a clear suggestion made with the purpose of coercing or limiting the rapporteur's independent judgement.
This pretension is evocative of another previous "dirty war", carried out by Spain against the UN torture reporter, Theo van Boven in 2003-2004, insidiously forced to resign his position as a result of a visit to the Basque Country that irritated the Spanish government. On that occasion, the Dutch expert was investigating the torture suffered by Basques allegedly belonging to the Basque terrorist group ETA, and carried out by agents of the state security forces. Subtly, the story seems to repeat itself. There is an ample bibliography of sources consulted, that is superficially enumerated below. From among those, one specially worth mentioning is a report from the Basque regional government, prepared by a Basque institute of criminology that, in 2016, recorded 4,009 cases of torture between 1960 and 2003, within the framework of the fight against ETA, without forgetting the multiple decisions by the European Court of Human Rights and of the UN Human Rights Committee, which condemned Spain to have covered torture, (7) and having then some of the perpetrators been pardoned and even decorated. (8) To all the effects of this inheritance of human rights violations connected with the dictatorial past (1936/1975), it is worth emphasising that the transitional justice of Spain leaves much to be desired. It is reluctant to abrogate the amnesty law that laundered the atrocities of the Franco regime and to investigate the disappearances in those "dark years", in spite of the repeated exhortations of the United Nations.
As a corollary to this peculiar "dirty war", there is the draft resolution that Pakistan and the United Arab Emirates have started to circulate about the UN Human Rights Council limiting the performance of these "special procedures" . In its resolutive aspects, the drafting aims to create a double permanent mechanism of supplementary control over them, through fixed reiterative debates, incorporated into the future agenda of the UN Human Rights Council, divided into the three sessions in which the 10 annual working weeks in March, June and September. One of the provisions would address "the implementation" of the code of conduct for the rapporteurs and working groups imposed by the violating, reactionary and conservative countries when the Council was created in 2006. Another complementary possibility would require experts to formulate proposals for the "implementation" of their mandates, inviting them to "rationalise their effectiveness", aside from the existing annual written and oral reports, with the closed room interactive dialogues where States and NGOs intervene. Among the States that are likely to vote in favor, or refrain from voting against this resolution, there would be some of the European Union. It remains unknown whether Spain will add to the wave of restriction of these rapporteur reports, undoubtedly the best invention of the UN of human rights.
Juan Gasparini, accredited journalist at the UN headquarters in Geneva
(1) "Opinion" of the WGAD written in Spanish, sent on 05/25/2019 to the Government of Spain, which represents the State at the UN, including Spanish cover page for the transmission by fax, taken on this date to the Mission of Spain to international organizations in Geneva, author's archive copy.
(2) "Opinion" of the WGAD written in Spanish, sent on 4/7/2019 to Ben Emmerson, lawyer before the UN of the jailed Catalan pro-independence leaders, with a cover page in English for the transmission by email, author's archive copy . The National , Spain, 7/7/2019 .
(4) El País , Madrid, May 29, 2019, afore mentioned, and El Diario.es , Catalonia, 05/29/2019 .
(5) EFE, Geneva, 05/31/2019 .
(7) Claims by the Rapporteur against Torture of the UN 2003-2004, Theo van Boven, of practices of torture by agents of the State in Spain under the current democracy:
a) Report of the UN Rapporteur against the torture, Theo van Boven, 6/2/2004 and Spain's rejection of this report, El País , 7/3/2004
c) El País , 26/26/2016
d) European Court of Human Rights, Juanenea Port and Sarasola Yarzabal c. Spain, no. 1653/13, 13/2/2018.
e) UN Human Rights Committee, Achabal Puerts c. Spain, no. 1945/2010, 6/18/2013 and Lupiañez Seminar c. Spain, no. 2657/2015, 05/13/2019.
10) Photocopy of the draft resolution of Pakistan and United Arab Emirates, version in English, author's archive copy.