Saturday, November 13, 2010

The Role of International Law in Whistleblower Protection

The Role of International Law

The United Nations recognized the vital role of human rights defenders and the UN was convinced that these human rights defenders need to be protected from retaliation for reporting violations of human rights of others. The UN formally defined the defense of human rights as a right in itself and to recognize persons who undertake human rights work as “Human Rights Defenders.” The Resolution 53/144 was adopted in order to protect both human rights defenders and their activities. This is commonly known as the “Declaration on human rights defenders.”

Who is a Human Rights Defender?

Defenders can be of any gender, of varying ages, from any part of the world and from all sorts of professional or other backgrounds. In particular, it is important to note that human rights defenders are not only found within non-governmental organizations,and intergovernmental organizations but might also, in some instances, be government officials, civil servants or members of the private sector.

Medical Whistleblowers

Medical Whistleblowers are human rights defenders. The Hippocratic Oath taken by every Medical Doctor states the Doctors’ responsibility to care for the sick, to report on the welfare of the individual patient and also guard against any bias in the medical care system in relationship to any class of persons. The central moral commitment of the Hippocratic traditional code is its dedication to something other than the physician’s self-interest, that something being the primacy of the welfare of the patient. The Medical Doctor’s clear obligation is to detect and prevent abuse and neglect.

Medical Whistleblowers promote the well-being of patients by taking appropriate actions to avert the harms caused by violence and abuse. The duty of the Doctor is to not only address patients’ immediate injuries, but also the psychological and social needs of victims. Medical Whistleblowers need to work closely in conjunction with members of the public safety and law enforcement communities. In the U.S.A. there is mandated reporting of any signs of violence, abuse, or suspicious injuries. This places the Medical Whistleblower in the position of being a human rights defender and possibly facing retaliation by politically or economically powerful adversaries. In the political international context, medical professionals are some of the first reporters of violations of human rights. Medical Whistleblowers report the abuse of the elderly in hospital and nursing home settings, the financial and civil rights violation by guardians of the mentally ill, sexual assault of vulnerable youth in the foster care system, male upon male rape in prisons, neglect or abuse of refugees, and brutality against prisoners of war or psychological torture of terrorist suspects. Often Medical Fraud goes hand in hand with the violation of the patient’s human rights. Criminals who defraud the US Medicaid system by fraudulent charges, false reports and unnecessary procedures on vulnerable patients, do not care that they are causing physical, emotional and financial harm to vulnerable children and adults. These criminals deliberately seek out persons who by their very medical condition, disability, cognitive difficulty, legal immigration status, nationality, or disease state are particularly vulnerable. The right of opinion and expression of Medical Whistleblowers need to be protected in order to protect these vulnerable patients.

National Security Whistleblowers

Nowhere is it more important to have persons of honor and ethical and moral character than in our national security service. It takes great courage to be a national security whistleblower and human rights defender especially when already working in a dangerous environment. But brave defenders have stood up for human rights and braved the stigma of being a whistleblower within the national security, law enforcement or intelligence professions. It must be pointed out that many of these professionals although not in the medical profession may have contact with those who need medical care and assistance or who have suffered abuse, mistreatment or even torture. In addition, many medical professionals do serve in national security positions or work with the security forces. Executive orders and administrative measures have been used to limit the action of human rights defenders, in the name of security. National security personnel face retaliation when reporting to the Merit Systems Protection Board or the appropriate Office of Inspector General. Protecting their right to provide testimony regarding issues of fundamental human rights is critical not only to our national integrity but also to our national security and defense as well. If in times of war, the U.S.A. as a nation is not perceived as abiding by international humanitarian law and the Geneva Conventions, then we put the safety of our own men in combat at risk of brutal reprisals. Medical Whistleblower strongly supports appropriate national whistleblower protection legislation to give these courageous defenders the protection and support they deserve.

Forgive and Forget?

We should not be indicating to potential perpetrators of human rights violations that with time their acts will be forgiven and forgotten. We should not deny victims and their families the comfort of knowing that their suffering is recognized. Those who would continue past injustices and treat offenders as if they have absolute immunity, wish instead to erect a wall between the past and the present and place blinders on our governmental leaders about what may happen in the future.

This is not a pathway to national security but instead a blind following into potential disaster as we do not then learn from our past mistakes and make the necessary changes to prevent problems in the future.

Often those who have suffered whistleblower retaliation for bringing forward the truth to power have been told that we should forget the past and just move on. Those who advocate that we forget the past believe that we should not dwell on past injustices that can never be redressed. But our national whistleblowers embody the right to the public to know the truth and for those empowered to govern to make informed decisions. Without access to the guarantees of due process, those who wish to blow the whistle are instead punished for exercising their basic civil and political rights. The judicial system, far from affording individuals basic standards of justice, can be used by those in power as an instrument of repression to silence dissent. Not only is there an absence of the rule of law, but the legal system can be used against the people.

Reparation and Mitigation under International Law

There is a fragile connection between international law and justice and politics. In the international arena, many interests collide. There needs to be a real recognition of the economic and political power of the wrong doer, the competing interests of the various stakeholder groups including even opposing parties. International law needs to balance all these interests taking into account the constitutional obligation on the state to prosecute offenses that threatened the rights of citizens and its international obligation to prosecute crimes against humanity.

Nothing is more revealing about the situation of human rights in a country than the existence of political prisoners and social and political isolation of governmental whistleblowers and the denial of the most basic freedoms essential to humankind, such as freedom of expression, assembly and association. There has been an increased use of psychological mind control techniques to silence whistleblowers especially those in the national security, intelligence and law enforcement professions. Starting with subtle workplace bullying behavior, outright threats, surveillance, the witness intimidation can progress to illegal detainment with even hostile psychiatric evaluations or even treatment for “alleged” mental health illnesses. The effects of psychological intimidation, threats, and even psychological torture should not be under-estimated. Physical and mental consequences of torture can endure for several years and may be irreversible, often affecting not only whistleblower victims themselves, but also their relatives and close friends.

Although as Socrates may have said it may be better to be a victim than a wrongdoer, it would be much more preferable to have a secure route by which whistleblower complaints could be handled and retaliation quickly and decisively dealt with.

One of the means of mitigating the subsequent effects of torture on victims and their families is to provide them with medical, psychological, social, legal and economic aid. With this in mind, the General Assembly created the United Nations Voluntary Fund for Victims of Torture in 1982. The purpose of the Fund is to receive voluntary contributions and distribute them to non-governmental organizations and treatment centers for assisting victims of torture and their relatives whose human rights have been severely violated as a result of torture, as well as for the funding of projects for training healthcare professional specialized in the treatment of victims of torture.

Under the UN guidelines, every state should make sure that its legal system provides prompt and effective legal procedures of reparation for victims of human rights abuses. Applicants for reparation may include individual victims or a group of victims, the immediate family or the dependents of victims, or even “persons having a special relationship to the direct victims.” The measure of reparation should be expeditious and fully effective.

Such reparation should remove or redress the consequences of violations, and may serve the purpose of prevention. Reparation shall be in proportion to the violation. No statute of limitation should apply for human rights violations as long as an effective remedy is not available. The possibility and procedure of reparation should be widely publicized, and the applications for reparation should be diligently dealt with within an appropriate time period. Reparation should include restitution: the reestablishment of the situation that existed before the violation; compensation: redress for economically assessable damage; rehabilitation: medical, psychological, legal and social services; and satisfaction and guarantees of non-repetition.

US class action lawsuits have already changed the world of reparations under international law by making it possible for victims to win sizeable awards and even the return of long forgotten assets. Ideally, the reparation should be sufficient to allow the victim to become compensated and rehabilitated. While it is notoriously difficult to measure non-pecuniary losses such as pain, suffering and emotional distress, property restitution could produce equally numerous problems.

United Nations Declaration & International Law Related to Defenders of Human Rights:

Articles 1, 5, 6, 7, 8, 9, 11, 12 and 13 of the United Nations Declaration provide specific
protections to human rights defenders, including the rights:

❖ To seek the protection and realization of human rights at the national and international levels;
❖ To conduct human rights work individually and in association with others;
❖ To form associations and non-governmental organizations;
❖ To meet or assemble peacefully;
❖ To seek, obtain, receive and hold information relating to human rights;
❖ To develop and discuss new human rights ideas and principles and to advocate their
❖ To submit to governmental bodies and agencies and organizations concerned with
public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may impede the realization of human rights;
❖ To make complaints about official policies and acts relating to human rights and to have such complaints reviewed;
❖ To offer and provide professionally qualified legal assistance or other advice and assistance in defense of human rights;
❖ To attend public hearings, proceedings and trials in order to assess their compliance with national law and international human rights obligations;
❖ To unhindered access to and communication with non-governmental and intergovernmental organizations;
❖ To benefit from an effective remedy;
❖ To the lawful exercise of the occupation or profession of human rights defender;
❖ To effective protection under national law in reacting against or opposing, through peaceful means, acts or omissions attributable to the State that result in violations of human rights;
❖ To solicit, receive and utilize resources for the purpose of protecting human rights (including the receipt of funds from abroad).

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