Dr. Walter Schwimmer Secretary General Of The Council of Europe On: ‘The Council of Europe and the Way Forward’ 15th December 2003

Dr. Walter Schwimmer

Secretary General Of The Council of Europe

On:

‘The Council of Europe and the Way Forward’

15th December 2003

Less than a week ago, five of my staff and several members of the Council of Europe Parliamentary Assembly were staying at the Moscow hotel which was a target for suicide bombers. They were literally yards away when the bomb exploded, and it is close to a miracle that none of them was hurt in the attack, which left six people killed and many injured.

We are accustomed to saying that the Council of Europe is at the forefront of the fight for democracy and human rights but rarely is this meant in a literal sense. Events such as the Moscow hotel bombing naturally give rise to a number of questions: Does the world of the 21st century still need and believe in human rights? Have they become optional, or are they are still a must?

I am not asking these questions rhetorically, and I would propose to resist the temptation to answer immediately with a self-assured and resolute yes.

Throughout history, the proponents of human rights fought for their cause in response to a pressing need. Be they the architects of the Magna Charta or the authors of the Declaration des droits de l’Homme et du Citoyen, or the US Declaration of Independence, their work was not merely an exercise in philosophy and ethics, it was an act responding to, and changing the reality in which they lived. In doing so they have also changed the course of history and set the foundations of our modern societies.

This is not yet an answer to the question at the beginning, but there is a lesson to be learned - we should be aware that our attitude to human rights and fundamental freedoms today may affect the lives of generations to come.

A renewed and strengthened common commitment to human rights, democracy and the rule of law was also Europe’s reaction to the horrors of the two world wars. The idea behind the creation of the Council of Europe in 1949 was to boost Europe’s resistance against acts and ideologies which killed millions of people and left our continent in ruins.

During the Cold War, human rights represented an essential part of the ideological defence of the West. After the fall of the Berlin Wall, they provided the blueprint for the reconstruction of the Eastern half of Europe.

All this is history, which would teach us a lot, if only we were willing to learn.

Today, our societies are facing new challenges and new threats. Terrorism - as the biggest one among them - is becoming more widespread, better organised, more difficult to fight against and deadlier than ever before. Since 11 September, terrorism is not something we only see on television. It is something that is affecting all of us.

The new form of terrorism, targeting everyone, everywhere, with no concern whatsoever for the lives of innocent people, has exposed our vulnerability and made us afraid. Our citizens demand and are entitled to protection. Faced with the terrorist threat on one side and the electorate’s demands for security on the other, governments are sometimes tempted to resort to ethical shortcuts in their search for quick results and public approval. Human rights and the rule of law are no longer a priority. Public security comes first. The problem with this approach is that it is based on a false choice between security and human rights.

Repressive measures, and also the use of force, when necessary, must be a part of our response, given the magnitude of the threat. But such measures must comply with human rights standards. This, again, is not only a moral imperative, but an operational necessity. Terrorism cannot be fought efficiently by rounding up the usual suspects and keeping them in detention for an indefinite period and with undefined rights.

The legal limbo of the Guantanamo base is just one, even if perhaps the most serious example of what is becoming a worrying trend across the globe. The “shoot first and ask questions later” attitude to human rights in the war against terror is eroding the system of standards which was created to protect the values the terrorists are set to destroy. Our governments should accept that anti-terrorist measures which violate human rights and fundamental freedoms will eventually fail. A successful anti-terrorist policy is one that succeeds in stopping more bad guys than it helps to create.

The new terrorism is intentionally creating and exploiting divisions along ethnic and religious lines. Any successful anti-terrorist policy will have to counter these attempts to divide the world in “them” and “us”. We must engage in an intensive intercultural dialogue and build on common and universal principles of humanity, justice and tolerance. I do not believe in a clash of civilisations - because civilisations do not clash - but we must do our utmost to prevent a clash of ignorance, manipulation and fear. We must demonstrate that there is no war between “them” and “us”, that there is only a struggle to protect the entire world community from those who use terror and destruction for political reasons and personal benefit.

The Council of Europe is leading the effort to develop a multifaceted approach to the fight against terrorism.

Firstly, it is helping to strengthen the international law-enforcement co-operation, and has recently updated its Convention on the Suppression of Terrorism. Our current priorities focus on the study of the concept of «apologie du terrorisme» and of «incitement to terrorism», which should help us to strike not only against those who perpetrate, but also those who initiate, sponsor and encourage terrorist acts.

Our experts - from 45 member states - continue their work on special investigative techniques, the protection of witnesses and so called pentiti and measures to target the financing of terrorism.

We have begun to negotiate a comprehensive Council of Europe Convention on Terrorism, which would complement the work carried out by the United Nations.

Secondly, already in July 2002, the Council of Europe’s Committee of Ministers adopted Guidelines on human rights and the fight against terrorism. These Guidelines, while reaffirming states’ obligation to protect their citizens against terrorism, ask the governments to avoid arbitrariness and unlawful measures, such as torture. The Guidelines focus on issues such as collecting and processing of personal data, measures which interfere with privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition and compensation of victims.

Finally, the Council of Europe is promoting intercultural dialogue. Our work in this field did not begin with 11 September, but it has gained new relevance and urgency against the backdrop of the recent developments.

In the Council of Europe context, intercultural dialogue is first and foremost an exchange between Europeans of different ethnic and religious backgrounds. Of our 800 million Council of Europe citizens, for example, some 100 million are Muslims.

As I stated at the recent Summit of the Organization of Islamic Conferences in Kuala Lumpur, Muslims in our member states, as all other Europeans, have important stakes in the building of a wider Europe of peace and stability, based on respect for the equal dignity of all. Their freedom of religion, as everyone else’s, is guaranteed under the European Convention on Human Rights and protected by the European Court of Human Rights.

The Council of Europe’s Commission against Racism and Intolerance (ECRI) has proposed many measures to address discrimination against minority Muslim or other religious or ethnic communities. Islamophobia, as well as anti-Semitism or any other form of prejudice and intolerance, are offending our common values and represent an attack on all of us, not only the immediate victims.
Education is also critically important and the Council of Europe is developing standard curricula which are promoting the knowledge and understanding of religious diversity and democratic practices.
Terrorism is not the only reason for fear and insecurity in our societies. Illegal migration and crime have dominated the political agenda in many of our member states and also here in the United Kingdom. Again, there is a risk that governments dealing with these challenges would see human rights as an obstacle to efficiency.

Responding to the growing influence of the populist parties, which cater to prejudice and benefit from fear, mainstream politicians are increasingly adopting the populist discourse and policies.

This is a losing strategy. Populism is the ideological equivalent of junk food - it is easily absorbed, it is addictive and it is bad for everyone’s health. Faced with the bad eating habits of their citizens, responsible governments devise strategies to promote better diet, they do not start serving hamburgers in school cafeterias and hospitals. There is no reason to act differently when it comes to politics. Instead of trying to beat populists at their own game, we should offer alternatives that would take into account our citizens’ concerns, without distorting the reality and offering questionable solutions to their problems.

We are following very closely the proposed changes to the UK legislation on asylum seekers, particularly those concerning their family benefits and legal assistance. I would certainly hope that the UK government, before taking any final decisions on this sensitive matter, will take full account of international law, including its obligations as member of the Council of Europe. Managing migration is important but, again, this should not be done at the expense of human rights and international humanitarian law. This was also the message of the UN High Commissioner on Refugees, Ruud Lubbers, who recently criticised EU’s approach to common asylum policy.

The bottom line is that in meeting the new challenges of the 21st century, human rights are still an asset and not a liability. This answers the question put at the beginning. Human rights have not become optional, they are still a must. What has changed is the nature of the threat, and what needs to be done is to adapt our safeguards to the new circumstances.

This is what the Council of Europe has been doing in recent years. Its mandate - to promote democracy, human rights and the rule of law - has not changed, but our working methods and instruments have.

We are - firstly - a multilateral organisation and multilateral organisations are the workhorse of international law. The compendium of almost 200 Council of Europe treaties is being constantly revised to offer a solid legal framework for common action in dealing with common problems. Those who advocate this approach at global level should logically support our work in Europe.

Secondly, since its creation in 1949, the Council of Europe has been at the cutting edge of the work to protect and expand the notion of human rights. We have done so with the European Convention on Human Rights fifty years ago, and with the Court which allows individuals to seek legal recourse against their governments. Our organisation began its campaign for the abolition of the death penalty at a time when people were still being hanged in your country, but has today succeeded in transforming Europe into a death penalty-free continent. The Council of Europe was the first to open its doors after the fall of the Berlin Wall, offering assistance in democracy building during the most critical first years of transition. The recently adopted Cyber crime Convention - the first international instrument in this field - demonstrates the Council of Europe’s capacity to constantly break new ground. Our work today is setting the human rights standards of tomorrow.

Thirdly, the Council of Europe is an all-European organisation, bringing together 45 of Europe’s 47 countries. Of the remaining two, Monaco is on our doorstep, while Belarus is not likely to join us until it changes its current authoritarian rule.

With the Council of Europe, 800 million Europeans enjoy the same protection of the same rights. The bulk of our work in recent years may have been democracy building in former communist societies, but, as shown by examples I have already mentioned, countries with a longer democratic tradition are not immune to human rights and democratic hiccups, and may well benefit from our benevolent scrutiny and friendly advice.

Fourthly, in the Council of Europe the rules of behaviour are decided by all, and applied to all. The compliance with many of our Conventions is meticulously monitored and the European Convention on Human Rights is legally enforced through the Court. Countries join the Council of Europe because they want to do so. Our members are not asked to comply with someone else’s rules; they are merely reminded of their own promises. But we expect everyone to honour their word.

Ensuring that this is the case is one of the tasks of the Council’s Parliamentary Assembly. Many international organisations have consultative assemblies, but none enjoys statutory powers and political influence like the one in Strasbourg. The Assembly - and I wish to pay tribute to the members of the UK delegation, many of whom I see here today - was behind most of the main historic projects of the Council, starting with the European Convention on Human Rights. It represents the democratic conscience of Europe, and is rightly quick to rap the knuckles of governments when they become relaxed in applying Council of Europe standards.
The Council of Europe’s intergovernmental and multilateral approach - together with the Court of Human Rights and the Parliamentary Assembly - is essential in developing and enforcing common European human rights and democratic standards to all European countries. If the United Kingdom, for example, wants to express an opinion on the Russian conduct in Chechnya, or Turkey’s treatment of the Kurdish minority, it should also allow Russia and Turkey to express their possible grievances with regard to the UK.
The Council of Europe offers a framework for such political exchanges. Of course, a government does not need the Council of Europe to voice its concerns or criticisms, a press release or a press conference would do. However, dialogue on an equal footing, and based on a system of commonly agreed standards and principles, will certainly provide a much better chance to be listened to.
Finally, let me conclude with a few brief remarks on the Council of Europe’s future relations with the European Union. The historic enlargement of the former will come to an end at the time when the latter starts its own expansion to East and Central Europe. We should bear in mind, however, that even after the present enlargement of the European Union, there will be some twenty European countries which cannot, cannot yet or do not want to join the EU.
The prospect of the European Union’s accession to the European Convention on Human Rights, endorsed by the Convention on the future of Europe and included on the agenda of the Intergovernmental Conference, represents the foundation of future institutional relations between the two bodies and in that respect, the failure of the Brussels Summit is also a setback for the Council of Europe because of the delay it brings to the European Union’s accession to the European Convention on Human Rights.
Certainly, the European Union is not a sovereign state and we are devising tailor-made political and legal solutions for a Europe of partners, providing an institutional framework to allow all European countries and the European Union to co-operate in a multilateral framework, on an equal footing and with a focus on shared values of democracy, human rights and the rule of law.
The enlargement of the EU, which was supported by the Council of Europe by preparing the candidate countries for the Copenhagen criteria, is a very positive development but it cannot and will not substitute the Council of Europe’s statutory aim: to achieve greater unity - not a larger union - of the European nations.
A logical, politically and legally sound relationship between the European Union and the Council of Europe will bring multiple benefits. For the non-EU member states, it will provide an additional opportunity for dialogue and co-operation with Brussels on an equal footing, provided by the Council’s multilateral framework.
The European Union will enhance its international stature and credibility by accepting to commit itself to the same set of rules it asks others to respect. It will also benefit from new opportunities to reduce duplication and increase efficiency by applying its rule of subsidiary not only to the lower, national, regional or local levels, but also by delegating upwards, to a multilateral and pan-European level, when this is politically, economically or administratively justified.
To pave the way for these historic changes, the Council of Europe will hold its Third Summit of Heads of State and Government in Warsaw, during the Polish Chairmanship of the Committee of Ministers in 2005. The focus of the Summit will be on substance - concrete action to consolidate democracy, human rights, the rule of law and social cohesion in Europe, as well as on the necessary institutional reforms - in parallel to those adopted by the European Union, which should allow us to attain the common objectives.
I believe the Summit should result in a European Magna Charta - a consolidated document of common European standards, a code of conduct for governments, adapted to the new challenges of the 21st century.
The Summit should also provide a blueprint for future relations with the enlarged and reformed European Union, and other organisations active in Europe, such as the OSCE and NATO, in order to ensure coherence, efficiency and rational use of means in matters where our competences overlap.
A Europe of partners is a new model for the continent at the end of the post Cold War period. It is a model for the 21st century
The Government of the Netherlands, currently chairing the Council of Europe’s Committee of Ministers, has entitled the programme of its six-month presidency “Building Bridges with Standards”. I think that this sums up the Council of Europe’s role in Europe very well.

Through the Council of Europe, all countries, on an equal footing, have a chance to cooperate and contribute to the creation of a common European space where the same rules are applied to all.

Fifty years ago, British lawyers, fresh from their experience at the Nuremberg trials, helped to draft the European Convention on Human Rights. Prosecuting those responsible for the horrors of the Second World War served as an inspiration in the preparation of a treaty which opened a historic new epoch in the protection of human rights. This can also be an example for the future trial of Saddam Hussein. Such a trial must be fair and transparent and should closely involve the Iraqi people.

Today, we should follow their example. When the fundamental values of our societies are under threat, we need more, not less human rights.