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Human Rights Day 2010- II: Protecting The Right To Defend Human Rights

Violations committed against human rights defenders and other difficulties they face:

Human rights defenders are whistle blowers and are vulnerable from retaliations by vested interest individuals and groups. The severity and scale of reprisals committed against defenders were one of the primary motivations behind the adoption of the Declaration on Human Rights Defenders and the establishment of the mandate of the Special Representative of the Secretary-General on human rights defenders.

The Special Representative has expressed concern for the situation of human rights defenders in all countries, including both emerging democracies and countries with long-established democratic institutions, practices and traditions. Nevertheless, special emphasis has been placed on countries where: (a) internal armed conflict or severe civil unrest exists; (b) the legal and institutional protections and guarantees of human rights are not fully assured or do not exist at all.

A great many human rights defenders, in Manipur and in every region of the world, have been subject to violations of their human rights. They have been the target of executions, torture, beatings, arbitrary arrest and detention, death threats, harassment and defamation, as well as restrictions on their freedoms of movement, expression, association and assembly. Defenders have been the victims of false accusations and unfair trial and conviction.

Violations most commonly target either human rights defenders themselves or the organizations and mechanisms through which they work. Occasionally, violations target members of defenders’ families, as a means of applying pressure to the defender. Some human rights defenders are at greater risk because of the nature of the rights they seek to protect. Women human rights defenders sometimes confront risks that are gender specific and require particular attention.

In most cases, acts committed against human rights defenders are in violation of both international and national law. In some countries, however, domestic legislation which itself contravenes international human rights law is used against defenders.

Examples of acts committed against human rights defenders

Some of the human rights violations and obstacles faced by human rights defenders in the course of their work are described. While some of these acts may occur only once, they often continue to have an impact on defenders and their families for months or even years afterwards. Death threats, for example, can oblige human rights defenders to change their daily routines completely, as well as those of their immediate family, or even to leave their country to seek temporary asylum abroad.

Many human rights defenders have been the victims of killings as a direct response to their human rights work. They have been abducted by unidentified persons and sometimes by confirmed members of security forces and later been found dead or made to disappear completely.

Death threats are used widely as a means of threatening and intimidating human rights defenders into stopping their work. Threats are often anonymous, made by telephone or letter. In some instances, however, the threats are made by persons known to the defenders, but who are not investigated or charged by the police. The lack of effective police or judicial response to killings and death threats creates a climate of impunity that encourages and perpetuates these violations.

Human rights defenders are sometimes kidnapped and beaten during their captivity. Military personnel, police and security force officials have resorted to severe beatings in an attempt to torture defenders into making false confessions or in reprisal for a defender’s denunciation of violations committed by security forces.

Arbitrary arrest and detention of human rights defenders are common, and most often conducted without arrest warrants and in the absence of any official charge. Periods of preventive detention, without any judicial review, are sometimes very long and occur in very poor conditions of detention. Human rights defenders can be particularly vulnerable to beatings, ill-treatment and torture while in detention.

In many instances, human rights defenders are the object of criminal or other charges leading to prosecution and conviction. Peaceful demonstrations, lodging an official complaint against ill-treatment by police, participation in a meeting of indigenous rights activists or unfurling a banner commemorating victims of human rights violations have all led to prosecution on charges as varied as bribery, public disturbance and hooliganism.

Harassment of human rights defenders is commonplace and often goes unreported. It is almost always committed by authorities and can involve a wide variety of circumstances. Human rights defenders are kept under surveillance and have their telephone lines cut or tapped. They have their travel and identity documents confiscated, preventing them from going abroad to address human rights forums. Human rights lawyers have been threatened with disbarment or placed under investigation. Defenders have suffered administrative harassment, for example being forced to pay heavy fines for trivial administrative transgressions or to report repeatedly over extended periods to an administrative office for no clear reason.

Judges have been removed from presiding over particular cases or have been suddenly transferred from one jurisdiction to another, requiring the whole family to move to another part of the country.

Human rights defenders have been the victims of defamation campaigns, with slanderous allegations appearing in State-controlled media attacking their integrity and morals. Complaints have been fabricated to discredit independent non-governmental organizations and journalists exposing human rights abuses. Defenders and their work have been publicly misrepresented, being described as, among other things, terrorists, rebels, subversives or actors for opposition political parties. State authorities and State media have equated human rights defenders with the persons whose rights they seek to protect; for example, defenders acting in support of the rights of persons from armed opposition groups have themselves been described as being affiliated to those groups.

Policies, legislation and procedures described as ‘security’ measures are sometimes applied in such a way as to restrict the work of human rights defenders and sometimes target the defenders themselves. Under the pretext of security reasons, human rights defenders have been banned from leaving their towns, and police and other members of security forces have summoned defenders to their offices, intimidated them and ordered the suspension of all their human rights activities. In addition to violations targeting individuals, there are clear trends illustrating a strategy, in some States, of restricting the environment in which human rights defenders operate. Organizations are closed down under the slightest of pretexts; sources of funding are cut off or inappropriately limited; and efforts to register an organization with a human rights mandate are delayed by intentional bureaucracy. State authorities obstruct the holding of meetings between human rights defenders and prevent defenders from travelling to investigate human rights concerns.

The enactment and enforcement of laws curtailing the legitimate exercise and enjoyment of the rights to freedom of opinion and expression, religious belief, association and movement, such as laws on registration and regulation of the activities of non-governmental organizations, or legislation banning or hindering the receipt of foreign funds for human rights activities, have all been used to harass and obstruct the work of human rights defenders.

Some efforts to hinder the work of human rights defenders have focused on their place or means of work. The offices and/or homes of defenders are the subject of attacks, burglary and unauthorized searches. Premises from which human rights defenders operate have been closed by authorities, and defenders have had their bank accounts frozen. Their equipment and files, including computers, documents, photographs and diskettes, have been stolen or confiscated. Access to the Internet and international e-mail facilities has been restricted or prevented altogether.

All the above violations of the rights of human rights defenders have been compounded by a culture of impunity, as existing in Manipur, which also exists in many countries in relation to acts committed against human rights defenders.

The situation of women human rights defenders

Women human rights defenders have faced all the acts described above. However, their particular situation and role require special awareness and sensitivity both to the ways in which they might be affected differently by such pressures and to some additional challenges. It is essential to ensure that women human rights defenders as well as men are protected and supported in their work and, indeed, that such women are fully recognized as human rights defenders.

The State is the primary perpetrator of violations against human rights defenders. Women human rights defenders, however, have often found that their rights are violated by members of their own communities, who may resent and oppose their human rights activities, which some community leaders may see as challenging their perceptions of the traditional role of women. In such cases, State authorities have often failed to provide adequate protection for women defenders and their work against the social forces that threaten them.

Many women are perceived by their communities as an extension of the community itself. If a woman human rights defender is the victim of a rape because of her human rights work she may be perceived by her extended family as having brought shame on both the family and the wider community. As a human rights defender she must carry the burden not only of the trauma of the rape, but also of the notion within her community that, through her human rights work, she has brought shame on those around her. Even where no rape or other attack has occurred, women who choose to be human rights defenders must often confront the anger of families and communities that consider them to be jeopardizing both honor and culture. The pressures to stop human rights work can be very strong.

Women human rights defenders having day-to-day responsibility for the care of young children or elderly parents often find it very hard to continue their human rights work knowing that arrest and detention would prevent them from fulfilling that role in the family.

This remains a concern for women human rights defenders even though, across the world, men are increasingly sharing responsibility for the care of dependants. However, women have also used this role to strengthen their work as human rights defenders, for example where ‘families of disappeared persons’ or ‘families of the extra-judicially executed’ have formed human rights organizations. The fact that they are mothers and family partners of victims of human rights violations has provided a very strong rallying point and advocacy tool for these defenders.

Perpetrators of violations against human rights defenders

State authorities are the most common perpetrators of violations against human rights defenders yet also bear the primary responsibility for assuring their protection. However, a variety of ‘non-State’ actors also commit, or are implicated in, acts against human rights defenders and it is important to note their responsibility.

1. State authorities

Most often, where one State authority is a perpetrator then other State authorities are often complicit in the violation because they have not prevented or reacted to the acts committed. State authorities, in this context, should be understood to include multiple types of authorities at the bureaucratic as well as political levels, and to include especially local authorities as well as those at the national level.

Police and other security forces are the most visible perpetrators of acts such as arbitrary arrests, illegal searches and physical violence. However, other authorities are usually also implicated. For example, where an arrest in violation of international standards is conducted with an arrest warrant issued by local authorities and leads to prosecution and conviction, police, members of the judiciary and State lawyers may all be complicit in the violation of a human rights defender’s rights.

Where laws or administrative regulations are inappropriately applied so as to prevent human rights defenders from registering as non-governmental organizations or from meeting together, the civilian authorities responsible for applying those rules carry major responsibility. It is common for some State authorities falsely to push defenders into administrative ‘illegality’ and to use this as the basis for a subsequent arrest, detention and conviction.

It can be difficult to identify with certainty the perpetrators of some acts committed against human rights defenders, such as anonymous death threats. In these situations, as with every violation, the relevant State authorities bear responsibility for investigating the acts committed, providing temporary protection if needed and prosecuting those responsible.

Where State authorities do not fulfill this responsibility they are in breach of their obligations. In practice, police in Indian and some countries often refuse to act on, or even to register, complaints of attacks against human rights defenders, and courts are reluctant to put the perpetrators on trial.

Inaction by the authorities has sometimes allowed a violation to continue or be repeated and to worsen, with successive death threats eventually leading to the actual murder of a human rights defender.

2. Non-State actors

The group of ‘non-State’ actors is very broad and extends to armed groups, businesses such as transnational corporations, and individuals. While the State bears the primary responsibility to protect human rights defenders, it is essential to recognize that non-State actors can be implicated in acts committed against them, both with and without State complicity.

Armed groups have used killings, abduction and death threats, among other acts, as regular tactics to silence human rights defenders. Some of these groups operate in active collusion with Governments, for example as a paramilitary force, while others are in conflict with the State as armed opposition groups.

Private or public sector economic interests ‘“ such as transnational corporations, central government or State undertakings or major landowners ‘“ have an increasingly recognized impact on the economic and social rights of people from the community in which they are based. In some countries, where human rights defenders have conducted peaceful protests against the negative human rights impact of transnational corporations or state undertakings, the security forces have used violence to repress the protests. In other cases, the authorities have failed to intervene when unidentified individuals, suspected of acting on behalf of private economic interests, have attacked human rights defenders. In some examples of non-State acts, human rights defenders have been the victims of killings, beatings and intimidation instigated by religious associations, community or tribal elders, and even members of their own family, in direct reaction to their human rights work.

3. Positive role of State and non-State actors

In many States, the obligation to respect, protect and implement human rights is generally fulfilled effectively; and in almost every State there are, at the very least, individuals within the security and civilian authorities who work very hard to protect human rights and who themselves fulfill the role of human rights defenders. In some cases, police officers, judges, civilian members of the State bureaucracy and politicians have placed themselves at great personal risk so as to protect the human rights of others, to support justice and to end corruption.

Similarly, although some private actors are perpetrators of violations against human rights defenders, others provide fundamental support in addressing such acts. Religious leaders have often been at the forefront of action to defend human rights and human rights defenders themselves.

United Nations protection of human rights defenders and support for their work

United Nations action in favor of human rights defenders has developed from recognition of the following:

  • Implementation of international human rights standards within countries depends to a great extent on the contribution of individuals and groups (working inside as well as outside the State), and support to these human rights defenders is fundamental to achieving universal respect for human rights;
  • Where Governments, national legislation, the police, the judiciary and the State as a whole do not provide adequate protection against human rights violations in a country, human rights defenders become the last line of defense;
  • Human rights defenders are often the target of human rights violations precisely because of their human rights work and they themselves require protection.

Recognition of the vital role of human rights defenders and the violations that many of them face convinced the United Nations that special efforts were needed to protect both defenders and their activities.

The first major step was formally to define the ‘defense’ of human rights as a right in itself, and to recognize persons who undertake human rights work as ‘human rights defenders’. On 9 December 1998, by its resolution 53/144, the General Assembly of the United Nations adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (commonly known as the ‘Declaration on Human Rights Defenders’).

The second step was taken in April 2000, when the United Nations Commission on Human Rights, which was succeeded by the Human Rights Council in 2006, asked the Secretary-General to appoint a special representative on human rights defenders to monitor and support the implementation of the Declaration.

The Declaration on Human Rights Defenders

Elaboration of the Declaration on human rights defenders began in 1984 and ended with the adoption of the text by the General Assembly in 1998, on the occasion of the fiftieth anniversary of the Universal Declaration of Human Rights. A collective effort by a number of human rights non-governmental organizations and some State delegations helped to ensure that the final result was a strong, very useful and pragmatic text. Perhaps most importantly, the Declaration is addressed not just to States and to human rights defenders, but to everyone. It tells us that we all have a role to fulfill as human rights defenders and emphasizes that there is a global human rights movement that involves us all.

1. Legal character

The Declaration is not, in itself, a legally binding instrument. However, it contains a series of principles and rights that are based on human rights standards enshrined in other international instruments that are legally binding ‘“ such as the International Covenant on Civil and Political Rights.

Moreover, the Declaration was adopted by consensus by the General Assembly and therefore represents a very strong commitment by States to its implementation. States are increasingly considering adopting the Declaration as binding national legislation.

2. The Declaration’s provisions

The Declaration provides for the support and protection of human rights defenders in the context of their work. It does not create new rights but instead articulates existing rights in a way that makes it easier to apply them to the practical role and situation of human rights defenders. It gives attention, for example, to access to funding by organizations of human rights defenders and to the gathering and exchange of information on human rights standards and their violation. The Declaration outlines some specific duties of States and the responsibilities of everyone with regard to defending human rights, in addition to explaining its relationship with national law. Most of the Declaration’s provisions are summarized below. It is important to reiterate that human rights defenders have an obligation under the Declaration to conduct peaceful activities.

(a) Rights and protections accorded to human rights defenders

Articles 1, 5, 6, 7, 8, 9, 11, 12 and 13 of the 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 acceptance;
  • 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).

(b) The duties of States

States have a responsibility to implement and respect all the provisions of the Declaration. However, articles 2, 9, 12, 14 and 15 make particular reference to the role of States and indicate that each State has a responsibility and duty:

  • To protect, promote and implement all human rights;
  • To ensure that all persons under its jurisdiction are able to enjoy all social, economic, political and other rights and freedoms in practice;
  • To adopt such legislative, administrative and other steps as may be necessary to ensure effective implementation of rights and freedoms;
  • To provide an effective remedy for persons who claim to have been victims of a human rights violation;
  • To conduct prompt and impartial investigations of alleged violations of human rights;
  • To take all necessary measures to ensure the protection of everyone against any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the Declaration;
  • To promote public understanding of civil, political, economic, social and cultural rights;
  • To ensure and support the creation and development of independent national institutions for the promotion and protection of human rights, such as ombudsmen or human rights commissions;
  • To promote and facilitate the teaching of human rights at all levels of formal education and professional training.

(c) The responsibilities of everyone

The Declaration emphasizes that everyone has duties towards and within the community and encourages us all to be human rights defenders.

Articles 10, 11 and 18 outline responsibilities for everyone to promote human rights, to safeguard democracy and its institutions and not to violate the human rights of others. Article 11 makes a special reference to the responsibilities of persons exercising professions that can affect the human rights of others, and is especially relevant for police officers, lawyers, judges, doctors, nurses, etc.

(d) The role of national law

Articles 3 and 4 outline the relationship of the Declaration to national and international law with a view to assuring the application of the highest possible legal standards of human rights.

The Special Representative of the Secretary-General on human rights defenders

In its resolution 2000/61 of 26 April 2000, the Commission on Human Rights requested the Secretary-General to appoint a special representative on human rights defenders. The Commission’s intention was to provide support to the implementation of the Declaration and to gather information on the situation of human rights defenders around the world. In August 2000, Ms. Hina Jilani was appointed by the Secretary-General as the first holder of this office. In March 2008, the Human Rights Council, with resolution 7/8 decided to continue the mandate on human rights defenders for a period of three years. The Human Rights Council appointed Mrs. Margaret Sekaggya, and she succeeds Ms Hina Jilani. Mrs. Sekaggya can be contacted by email at urgent-action@ohchr.org for appeals and defenders@ohchr.org for other purposes.

The formal mandate of the Special Representative

The Special Representative’s mandate is to conduct the following main activities:

(a) To seek, receive, examine and respond to information on the situation and the rights of anyone, acting individually or in association with others, to promote and protect human rights and fundamental freedoms;

(b) To establish cooperation and conduct dialogue with Governments and other interested actors on the promotion and effective implementation of the Declaration;

(c) To recommend effective strategies better to protect human rights defenders and follow up on these recommendations;

The Commission on Human Rights urged all Governments to cooperate with and assist the Special Representative and to provide all information requested. The Special Representative was asked to submit annual reports to the Commission and to the General Assembly.

*The article is written by Laifungbam Debabrata Roy.

(Courtesy: The Sangai Express)

*You can read Part I here

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