“Working for human rights takes patience, perseverance and passion”

Interview with Professor Dr iur. et phil. Alfred de Zayas

Current Concerns: Professor de Zayas, your mandate as the UN Independent Expert on the Promotion of a Democratic and Equitable International Order (appointed by the United Nations Human Rights Council) ended recently. In your final report to the Human Rights Council, you formulated 23 principles concerning the world order (see box on p. 15). In those, you addressed issues such as peace, multilateralism, sovereign equality between states and the right of people to self-determination. What is most important to you?

Professor de Zayas: If these 23 principles are respected, we can hope for a sustainable world order that guarantees development for all countries and above all freedom in the sphere of the individual, freedom also in trade – without unilateral sanctions, because unilateral sanctions are against the spirit and letter of the UN Charter, they are contrary to international law. The only sanctions that technically could be considered legal are those imposed by the Security Council, but these too can lead to enormous human rights violations.

The Security Council is not above international law

The Security Council is not above international law either. It must comply with Article 24(2) of the UN Charter, which stipulates that “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations”. In other words, the Council is not legibus solutus (freed from the application of the law), but has a specific, limited mandate and must not act against peace or human rights, and if it does so, it is acting ultra vires or against the UN Constitution.

“He is a professional who must remain impartial, evaluate independently and promote human rights through mediation, negotiation and constructive recommendations. Above all, a rapporteur must be an ‘honest broker’, a mediator who proposes solutions. But the media and sometimes even the Council expect us to play an antagonistic, militant role. More importantly, sometimes we are expected to condemn some states but remain silent about others. There is palpable pressure – from the ‘zeitgeist’, the media, the lobbies, but also from non-governmental organisations. However, we have a code of conduct and we must act independently of any pressure or intimidation.
Unfortunately, there is a vast ‘human rights industry’ and some rapporteurs who do not always act independently – they follow the fashion. In civil society organisations there are some whom I would even call mercenaries of human rights – condottieri.”

Alfred de Zayas

Can you be more specific?

Look at the sanctions against Iraq 1991 – 2003. As early as 1995, Unicef estimated that 500,000 children had lost their lives as a direct result of these sanctions. At the end of the 2003 sanctions, over one million Iraqis were dead because of the sanctions. And that is why the UN Assistant Secretary Generals, the Humanitarian Coordinators for Iraq, Denis Halliday and Hans-Christof Graf von Sponeck, resigned in protest. Halliday said clearly, “It’s a form of genocide.” Hans-Christof von Sponeck published a book on the subject entitled: “A Different Kind of War: The UN Sanctions Regime in Iraq”, which was nothing less than an economic war force the country to its knees.
That is what the United Nations Security Council did, undoubtedly in violation of Article 24 of the UN Charter. It is because the Security Council is not above the law that it too must comply with the UN Charter, must also comply with the principles of human rights and human dignity. It is an aberration when its actions lead to one million deaths. Those sanctions should therefore have been lifted very quickly when it became clear that they lead to death. In other words: one must recognise that economic sanctions kill. Sanctions can only be imposed – for example in times of war in the form of embargos on the sale of weapons – so that the belligerent parties start talking and stop shooting at each other. Sanctions can be imposed prohibiting the purchase and sale of weapons, aircraft, warships, etc. That would be a legitimate form of sanctions. But not economic sanctions, which directly result in a lack of food, medicines, medical equipment, etc., which clearly and necessarily lead to death. Such sanctions are to be recognised as crimes against humanity and prosecuted by the

Criminal Court in The Hague.UN Charter – Constitution of the World

You mentioned the UN Charter. What significance do you give to the UN Charter in today’s world?

According to doctrine, the UN Charter represents the con stitution of the world. That is, the world order, which the states themselves determined in 1945. Article 103 of the UN Charter states that the Charter prevails any other treaty. This means that if a treaty is not in accordance with the UN Charter, then that treaty must be amended or it is null and void. The problem is: the doctrine on the one hand, the reality on the other. Reality doesn’t match the doctrine. We live in a world of hegemons, in a world where the great powers can afford to do anything, where they act against the UN Charter with total impunity, and that will not change in the near future. What worries me most is the corruption of the system, in particular the corruption of the Human Rights Council, the Office of the High Commissioner for Human Rights, the High Commissioner for Refugees, the International Criminal Court, because human rights have been “weaponised” or converted into weapons, weapons used only to eliminate opponents and not to help people gain their rights. In addition, the biggest crimes since 1945 have been committed by the big states. The corruption of institutions and concepts continues.

What crimes are you thinking of?

Perhaps the biggest violations of international law since the Nuremberg trials were the aggression against Yugoslavia in 1999 and later, above all, the aggression against Iraq in 2003. What is particularly disastrous – I would almost describe it as a primordial disaster – is that the United States did not carry out the aggression here alone, but that 43 states, the so-called “coalition of the willing”, joined in. Imagine what that actually means! We have here a revolt against international law, a deliberate rejection of the UN Charter and its philosophy! And led by the states that should have protected international law, that should have guaranteed it. These states have consciously – with open eyes – broken international law. It was a pogrom against law and justice. And no one has been held accountable!

“The international order is the order of multilateralism. The world constitution is the United Nations Charter and the priorities are peace, development and human rights. I insist on the spirituality of the Universal Declaration of Human Rights – adopted 70 years ago – and human dignity. A democratic order implies a connection between the will of the people and politics. Therefore, a direct or semi-direct democracy like in Switzerland is the most authentic one. An equitable order includes an equitable distribution of the world heritage of humanity as enshrined in the United Nations Charter and the Declaration of the Right to Development.“

Alfred de Zayas

Credibility of the ICC badly damaged

In such cases the International Criminal Court should actually take action...

What is the International Criminal Court doing? What does this International Criminal Court in The Hague do with the highly paid judges when they only charge Africans, namely relatively minor criminals – compared to the big criminals George Walker Bush, Donald Rumsfeld, Tony Blair, José Maria Aznar, Silvio Berlusconi! We must not forget that millions of people took to the streets in Milan, Naples and Rome in 2003. And Silvio Berlusconi disregarded the wishes of his own people, his own democracy and brought his country into a war of aggression. The same with José Maria Aznar in Spain: Millions of people took to the streets in Barcelona, Madrid and Seville to demonstrate against the war. Nevertheless, José Maria Aznar brings his country to war. This means that the credibility of the system has not only been undermined, it has been eliminated. What is the significance of an International Criminal Court that does not bring these biggest criminals to justice, but only the small-time villains of the world? For me, the crisis we are going through today is a crisis of the ontology of law, of the nature of law: law is degraded into a kind of code that applies only to the losers of a war and only to ousted politicians. It is a code against the weak, but not a code for all – such a pseudo-code helps nobody. We don’t need any of that.

Crisis of disinformation of the people

How could credibility be regained?

If intellectuals in America, England, France, Spain, Germany and Switzerland would get together and demand it. If the media … but the media have been corrupted as well. It’s easy to talk about a mendacious press. But it’s not just the lies, the media actively support and whitewash the crimes of the strong. When I look at the reports in the “New York Times” or the “Washington Post” in 2003 on Iraq or on “El País” or “El Mundo” or “ABC” in Spain on Catalonia, when the government, with brute police force, tried to illegally prevent the referendum on self-determination of 1 October 2017. The media are complicit in the crimes. They have a sophisticated system of disinformation, which is not only lying – and a lot of lying! But even more: They leave out what is important, what is crucial information. The press does not inform, the press indoctrinates in the sense of the powerful, the owners of the press, the conglomerates, be it Murdoch or be it someone else. This is manipulation in order to prevent the democratic exercise of the right to information. One is forced to go to alternative media to inform oneself. Every day, in the morning – besides BBC and CNN – I read “The Guardian”, RT, CCTV, al-Jazera, Telesur on the Internet to get a spectrum of information and then form my own synthesis. But how many are able to do that? How many have the time to deal with six, seven, eight different sources? This is a crisis of the 21st century, a crisis of information – the disinformation of the people. To get out of this situation … one would think that if intellectuals joined forces and demanded it, it should be possible. But how often has Noam Chomsky gathered a number of luminaries and published Open Letters in the New York Times and the Washington Post. And what effect have these letters had? Hardly any. As the deep state, the real power, takes it for granted that it can afford to ignore these voices of alternative thinking people like Noam Chomsky, Francis Boyle, Norman Finkelstein. They can speak as much as they want because we know that the masses have been so indoctrinated that they will not be torn out of their comfort. Therefore, Noam Chomsky poses no real danger to the powers that rule us. The idea that the truth shall make us free is nice – but inoperative.

When more and more people realise the manipulation ...

In this respect, I see hope at best in the opening that we have at our disposal through the Internet, that gradually, more and more people understand that they are being lied to, understand that their governments do not think or act democratically, that they understand that the press is lying and is publishing an unilateral selection of facts. With some difficulty you can arrive at a level of awareness and skepticism that you can no longer be influenced by the “New York Times” or the “Washington Post” or the BBC or Deutsche Welle. I myself am no longer manipulated. When I take the “New York Times” in my hands, I always have a question mark after every article: It may be true or perhaps not. I do not rely on the ethics of journalists, because I do not think they have any. They do what they’re told to do. And if they do something else, they lose their jobs. There are enough examples of journalists who have lost their jobs in America, in England, in France, in Germany. How many political commentators in Germany have lost their jobs as well!
So, if more and more people understand how they have been manipulated and how the press continues to be manipulative, then they will have no choice but to obtain the information for themselves as autodidacts. And then there are alternative groups, in France, in the Netherlands, in Germany, which offer something different, and gradually they are getting more popular. Of course they’re demonised. A few weeks ago, when the elections in Italy were successful with a coalition of alternative parties, they could not form a government because the President of Italy simply pushed the will of the people aside in a highly undemocratic way and said that he would appoint someone else as Prime Minister. It’s an unprecedented scandal! And what does the European Union, which is committed to democracy under the Lisbon Treaty, say? Oettinger says this will teach Italians not to vote for populists. It is such a scandal that an EU Commissioner can speak so brazenly and directly against democracy! And that he was not immediately asked by the press, in particular the “Frankfurter Allgemeine Zeitung”, the “Süddeutsche Zeitung”, the Zeit to resign from office. That would be the ethical, the just, the “honourable” thing to do. But we don’t live in a normal world.

“I would change nothing in my reports”

You have held a very important mandate as Special Rapporteur, and that is not the only part of all your work in the Human Rights Council. It is precisely with this mandate that you have repeatedly advocated more democracy worldwide and a better anchoring of it in the world order. You have written a total of 14 detailed and excellent reports. We have published much out of these in Current Concerns over the years we know each other. A wide range of articles on international law. What do you as an expert think about this time in retrospect?

I wouldn’t change anything in my 14 reports. I only deplore the fact that the system has been set up in such a way that we rapporteurs are, to a certain extent, an assembly of Cassandras. We are allowed to point out problems, but no one thinks of putting our recommendations into practice. There is absolutely no system of implementation (follow up) of our concrete and pragmatic proposals. We’re an alibi, after all. We are the fig leaf not only for the United Nations, but we are the fig leaf for the establishment, for the existing conditions. Our function is basically not to change conditions, but quite the opposite, to leave them as they are, to defend the status quo. Because there are so many powerful forces who want this status quo. They want to cement injustice. They want a system that grants privileges and defends privileges. As soon as you have a rapporteur like myself who relentlessly points out the problems and makes concrete proposals for correction, he will be insulted ad hominem. I may have had the unique honour of upsetting so many people in influential places that I was called a Communist, Marxist, Tsarist, Castrist, but also Fascist, Nazi, Neo-Nazi, Protonazi – I have experienced the whole spectrum of ad hominem attacks in the last six years. Because they just don’t want to deal with the issues. They know: If they get involved in a debate, they will lose because they do not have the arguments. All my reports are quasi mathematical, they have an inner logic, from A to B to C to D, without jumps. I don’t impose anything on my reader. I want to give my reader the facts and coherent arguments. Then I let the reader’s natural intelligence become active so that he can convince himself. It is not my job to convince someone, I am not a prophet and I do not want to be one either. I am a professional, an independent expert who sets out the facts, and then I say that if you apply a coherent logic, you will come to those conclusions yourself, but you can also come to other conclusions. It’s just a vision that I would like to facilitate if people want it.

“Everything is documented”

You documented all this in your reports…

Yes, for example the report on Venezuela. I submitted a report with 189 footnotes and ten annexes. What does that mean? This means that those who are not convinced by the main text can look at the 189 footnotes and annexes. I don’t invent my arguments. Everything is documented. The report has not yet been published, it is now with the governments of Venezuela and Ecuador, because I was on mission to both countries and it is the practice of the Office of the High Commissioner that – before a report is published – the state in question has the opportunity to read it beforehand, and it even has the right to formulate its own comments.

UN General Assembly establishes the High Commissioner for Human Rights

Since when has there been a High Commissioner for Human Rights?

I was present at the World Conference on Human Rights in Vienna in 1993. At this conference, specifically in part 2, paragraph 18 of the Declaration and Programme of Action the proposal was made to establish the institution of the High Commissioner for Human Rights. When we wrote this rather old concept of a High Commissioner for Human Rights into the declaration, we had no idea that the General Assembly would take us seriously and create this institution in their 48th session period! This was done by resolution 48/141 on 20 December 1993. That way the first High ­Commissioner for Human Rights, Jose Ayala-Lasso from Ecuador came to us. I had the honour to work closely with him and I wrote several of his speeches. We had a very positive co operation. He was very much focussed on achievable results and never tried to demonise countries or people. He did not belong to these phony human rights “experts” and rapporteurs who keep making grandiose speeches, he was no show man and had no interest in pleasing the press. He wanted results. He was a calm diplomat who tried to negotiate with the states in order to get things done through his good offices without necessarily embarrassing the state or certain heads of state. Nowadays High Commissioners like grandstanding and condemning, as if this was demonstrating their authority.

You have coined the term human rights industry. What do you mean by that?

A vast human rights industry has indeed developed in which not only the high commissioners are players but also the diplomats, the ministers, the so-called independent experts and the non-governmental organizations, too, who basically do what they get payed for. This is a curse of the modern human rights system – the big transnationals give money to the High Commissioner for Human Rights and expect him to make sure that certain topics get dealt with and others don’t. There is only a certain amount of time and a certain number of people available, and if people get assigned to work on the wrong priorities, then no time is left to sort out the really important ones.
I know all the High Commissioners and I have even written two articles about the institution of the High commission for human rights, one for the Encyclopaedia of Public International Law and one for A Concise encyclopaedia of the United Nations. The first to hold the position was Jose Ayala-Lasso until 1997, then we had an interregnum. Next came Mary Robinson until 2002 who was followed by Sergio Vieira de Mello, who fell victim to an assassination in Bagdad on 18 August 2003. The next interregnum was a very fortunate one, since the appointed “acting” Commissioner Bertrand Ramcharan from Guyana managed the position very well, although he was never given the official title of High Commissioner. He was and is a great intellectual with strong commitment and with a sharp sense for priorities and proportions. I wrote the article about him in the Oxford Encyclopaedia of Human Rights. Bertrand Ramcharan was in charge ad interim for two years, then came the Canadian judge Louise Arbour and then Navanethem Pillay from South Africa. She held the position until 2014 and was followed by the sitting High Commissioner Zeid Ra’ad Al Hussein from Jordan, whose term will end by August this year. We will get a new High Commissioner and obviously this may be reason for some hope, unless a mere politician or manager is appointed, instead of a person with ethics, a person committed to a world order based on human dignity, who is genuinely committed to promote the right to development and our right to be who we are.

The reports of the Independent Expert have been guided by numerous General Assembly resolutions, notably resolutions 2625 (XXV) and 3314 (XXIX), which, together with the Charter, propound a vision of a democratic and equitable international order. Based on the work of the mandate holder, the following should be generally recognized as principles of international order:

1. Pax optima rerum.1 The noblest principle and purpose of the United Nations is promoting peace, preventively and, in case of armed conflict, facilitating peacemaking, reconstruction and reconciliation;
2. The Charter takes priority over all other treaties (Article 103);
3. Human dignity is the source of all human rights, which, since 1945, have expanded into an international human rights treaty regime, many aspects of which have become customary international law. The international human rights treaty regime takes priority over commercial and other treaties (see A/HRC/33/40, paras. 18–42);
4. The right of self-determination of peoples constitutes jus cogens and is affirmed in the Charter and in common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The rights-holders of self-determination are peoples. The duty bearers are States. The exercise of self-determination is an expression of democracy and attains enhanced legitimacy when a referendum is conducted under the auspices of the United Nations. Although the enjoyment of self-determination in the form of autonomy, federalism, secession or union with another State entity is a human right, it is not self-executing. Timely dialogue for the realization of self-determination is an effective conflict-prevention measure (see A/69/272, paras. 63–77);
5. Statehood depends on four criteria: population, territory, government and the ability to enter into relations with other countries. While international recognition is desirable, it is not constitutive but only declaratory. A new State is bound by the principles of international order, including human rights;
6. Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State. Already in 1510 the Spanish Dominican Francisco de Vitoria,2 Professor of Law in Salamanca, stated that all nations had the right to govern themselves and could accept the political regime they wanted, even if it was not the best;3
7. Peoples and nations possess sovereignty over their natural resources. If these natural resources were “sold” or “assigned” pursuant to colonial, neocolonial or “unequal treaties” or contracts, these agreements must be revised to vindicate the sovereignty of peoples over their own resources;
8. The principle of territorial integrity has external application, i.e. State A may not invade or encroach upon the territorial integrity of State B. This principle cannot be used internally to deny or hollow out the right of self-determination of peoples, which constitutes a jus cogens right (see A/69/272, paras. 21, 28, 69 and 70);
9. State sovereignty is superior to commercial and other agreements (see A/HRC/33/40, paras. 43–54);
10. States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations (Charter, Art. 2 (4));
11. States have a positive duty to negotiate and settle their international disputes by peaceful means in such a manner that international peace, security and justice are not endangered (Charter, Art. 2 (3));
12. States have the duty to refrain from propaganda for war (International Covenant on Civil and Political Rights, art. 20 (1));
13. States shall negotiate in good faith for the early conclusion of a universal treaty on general and complete disarmament under effective international control (A/HRC/27/51, paras. 6, 16, 18 and 44);
14. States may not organize or encourage the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State;
15. States must refrain from intervening in matters within the national jurisdiction of another State;
16. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind;
17. No State may organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State;4
18. The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention;
19. The ontology of States is to legislate in the public interest. The ontology of business and investment is to take risks to generate profit. A treaty that stipulates one-way protection for investors and establishes arbitration commissions that encroach on the regulatory space of States is by nature contra bonos mores. Hence, the investor-State dispute settlement mechanism cannot be reformed; it must be abolished (see A/HRC/30/44, paras. 8, 12, 17 and 53, and A/70/285, paras. 54 and 65);
20. States must respect not only the letter of the law, but also the spirit of the law, as well as general principles of law (Statute of the International Court of Justice, Article 38), such as good faith, the impartiality of judges, non-selectivity, uniformity of application of law, the principle of non-intervention, estoppel (ex injuria non oritur jus), the prohibition of the abuse of rights (sic utere tuo ut alienum non laedas) and the prohibition of contracts or treaties that are contra bonos mores. It is not only the written law that stands, but the broader principles of natural justice as already recognized in Sophocles’ Antigone, affirming the unwritten laws of humanity, and the concept of a higher moral law prohibiting unconscionably taking advantage of a weaker party, which could well be considered a form of economic neocolonialism or neo-imperialism (see annex II below);
21. States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in order to maintain international peace and security and to promote international economic stability and progress. To this end, States are obliged to conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and non-intervention. States should promote a culture of dialogue and mediation;
22. The right to access reliable information is indispensable for the national and international democratic order. The right of freedom of opinion and expression necessarily includes the right to be wrong. “Memory laws”,5 which pretend to crystalize history into a politically correct narrative, and penal laws enacted to suppress dissent are anti-democratic, offend academic freedom and endanger not only domestic but also international democracy (see A/HRC/24/38, para. 37);
23. States have a duty to protect and preserve nature and the common heritage of humankind for future generations.

1     Peace is the highest good (motto of the Peace of Westphalia, 1648).
2     See <link http: ir.lawnet.fordham.edu cgi>ir.lawnet.fordham.edu/cgi/viewcontent.cgi.
3     See <link www.academia.edu the_foundations_of_human_rights_human_nature_ external-link seite:>www.academia.edu/7222085/The_Foundations_of_Human_Rights_Human_nature_ and_jus_gentium_as_articulated_by_Francisco_de_Vitoria.
4     Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986, p. 14. Available at <link http: www.icjcij.org files case-related>www.icjcij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf .
5     Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 49.