Defending human rights defenders
Defending human rights defenders is a core concern of the Law Society. Many such human rights defenders are lawyers, while many others are effectively doing the work of lawyers.
International Action Team member Kate Newman has been asked to examine the effectiveness of the Declaration on Human Rights Defenders (adopted by the UN on 9 December 1998) and the Special Rapporteur for Human Rights Defenders (created in 1999).
Read her preliminary report below.
DEFENDING HUMAN RIGHTS DEFENDERS
The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms (also known as the Declaration on Human Rights Defenders) was adopted by the United Nations (UN) General Assembly on 9 December 1998. In the following year the position of Special Representative for Human Rights Defenders (now Special Rapporteur) was created (Athanasiou, 2005, p.14). How effective have these two mechanisms of protection proved to be? At an international level they are vital for enabling NGOs and other members of civil society to enact media and education campaigns (Athanasiou, 2005, p.15). They also provide a legally constructed obligation that states ought to uphold and therefore can be held to account over. However, whether they have changed the reality ‘on the ground’ for the many human rights activists fighting to uphold human rights in their countries is debateable.
The inadequacy of legal mechanisms in protecting human rights defenders is supported by Skanthakumar (2008) where Sri Lanka is cited as an example. Skanthakumar (2008, p.12) explains that lawyers in Sri Lanka are frequently threatened and provides an illustration from 2008 where lawyers and court registrars received death threats from an organisation called ‘Mahasen Balakaya’ (Mahasen Battalion or Force) claiming that the lawyers represented terrorists and deserved punishment for this. The Sri Lankan government provided no response or protection for this grave violation on the legal profession. Indeed, despite calls from the international community, the Special Rapporteur for Human Rights Defenders has yet to receive an official invitation from the Sri Lankan government to investigate these and other violations. The same can be said for the Special Rapporteur on the Independence of Judges and Lawyers. In the mean time Sri Lanka continues to represent itself externally as a “member of the international community through reference to its impressive number of ratifications of conventions and treaties” (Skanthakumar, 2008, p.14), its election to the UN Council in 2006 and its engagement in the rhetoric of the ‘war on terror’ and yet continues to deprive human rights activists and the civilians they work for of many human rights.
In countries similar to Sri Lanka where legal mechanisms appear to have had little influence in alleviating threats to human rights activists, alternative forms of action are often regarded as a more appropriate method to achieve change. “International protective accompaniment is the physical accompaniment by international personnel of activists, organisations or communities threatened with politically motivated attack” (Mahony, 2004, p.6). Peace Brigades International (PBI) is one such organisation that specialises in sending trained volunteers into the field to act as a form of protection to those under threat. This protection can be as extensive as 24 hours a day accompaniment of one individual to simply acting as a presence in an organisation’s office during working hours (Mahoney, 2004, p.6). At first glance both forms of protection may seem slightly futile. After all, what value can one extra person bring to an already dangerous situation? Is their presence not simply increasing the number of people at risk and heightening awareness among perpetrators of the human rights activists and their work? In fact, this is not the case. In the 29 years that PBI has been operating it has never ‘lost’ a volunteer (www.peacebrigades.org). This is largely due to the stakes that are raised by having an individual from the international community ‘on the ground’, able to act as a witness to violence. They act as a deterrent because perpetrators are often unsure of the consequences of their actions being witnessed (Mahony, 2004, p.8). It also gives activists encouragement to carry out their work as they believe the risk to them is reduced (Mahoney, 2004, p.6). This is clearly portrayed in Colombia where a lawyer explained the positive impact direct accompaniment had on his work (2004, cited in Mahony, 2006, p.69): “This raises our profile a great deal. Because to go to a village on a road with the United Nations gives us a high level of protection. Especially because the United Nations has such close relationships with the state and carries such respect”.
One of the main reasons accompaniment has such a positive impact is because its strength is that “there will be an international response to whatever violence the volunteer witnesses” (Mahoney, 2004, p.6). It is this international support that aids its high levels of success. Diplomatic pressure is designed to complement the work taking place on the ground. Indeed, The Law Society of England and Wales’ ‘intervention’ letters to governments is just one example of an internationally renowned and respected organisation placing diplomatic pressure on the government of a country should one of the following events arise: the violation of a lawyer’s human rights, the restriction of the freedom and legal independence of the legal profession, systemic or gross violations of the rule of law, or a threat to the independence of the judiciary and the administration of justice (The Law Society, 2009, p.2). Amnesty International (AI) plays a similar role. By sending appeal letters and cards through their Greeting Card Campaign directly to countries’ governments, AI assists in raising the profile of those suffering human rights abuses. Indeed, success stories, such as that of the release in India in May 2009 of Dr. Binayak Sen, a medical doctor and human rights defender, who was imprisoned for two years after he was accused of passing letters between members of a banned leftist group, suggest that this type work is worthwhile (www.amnesty.org.uk). Having said this, it is difficult, if not impossible, to determine whether it is the action ‘on the ground’ or the influence in diplomatic channels that leads to an alleviation of the threat against a human rights defender. However, it is fair to assume that international pressure plays a significant part. Mahony (2004, p.8) argues that “we should not assume that the thugs who pull the trigger are unaffected by international pressure”. Often governments have direct, all be it unofficial, links with the perpetrators. If the right political or economic sway is placed on the government in question change can occur.
This ‘sway’ also comes from local diplomacy by those in the field accompanying human rights defenders. Local diplomacy, as well as national pressure, is useful and can include meeting with local community leaders, business leaders and local government authorities (Mahony, 2006, p.50). Advocacy campaigns are also essential. While there is “a recurrent tendency to associate the idea of advocacy with a stereotypical image of vocal human rights denunciations and demarches” (Mahony, 2006, p.51) and therefore contrary to a mandate of protection, it in fact is important in linking the “civilian vulnerabilities to conflict and the specific programmatic mandate of the institution. This allows the agency to engage in more active protection advocacy, while still championing its special responsibilities” (Mahony, 2006, p.51). This advocacy and diplomacy should be coupled with good visibility. An Officer of the Kosovo Verification Mission (KVM) (2006, cited in Mahony, 2006, p.64) described its presence as “complete saturation” explaining that they “were visible 24/7. Driving through every single village. No locale was off-limits. When something happened we could set in motion an immediate response”.
In light of these points it is clear that the immediate alleviation of a threat to a human rights defender is found in the form of protective accompaniment. Their presence creates the space within which the defender can act with a significantly reduced fear of reprisal. This is not to suggest that international diplomacy and the use of legal mechanisms through which to hold governments to account should be dismissed as worthless. They provide important channels for the international community to add their voice to those supportive of protecting human rights defenders and are an important means by which a government can be held to account for its actions, or lack of them. What currently ought to change, however, is the awareness and involvement of wider civil society in countries where human rights are enjoyed and taken for granted by civilians. Indeed, for most of us leading relatively comfortable lives in a secure environment, hard-hitting news stories can easily wash over us when in fact foreign news of a lawyer who has been found dead or a human rights activist who has disappeared ought, actually, to make us sit up and appreciate the level of access to justice we enjoy.
This article has demonstrated that in many countries human rights are not so freely available and individuals, be they lawyers, politicians or trade unionists, to give just a few examples, risk their lives, and often their families’ too, in order to see partial enjoyment of human rights in their country. While there are numerous organisations that assist both in the field and at international diplomatic levels including PBI, AI and The Law Society of England and Wales, there is always more work that can be done. Athanasiou (2005, p.22) argues that civil society needs to become more aware and should recognise that threats against human rights defenders “is no longer a matter of interest for NGOs or some kind of intellectual ‘elite’, but everyone ...should be concerned”. For Athanasiou (2005, p.18) “the new international context and the antiterrorism ‘hysteria’ [has] provided a wonderful pretext to numerous states to become even more repressive towards civil society using as a justification notions such as national security [and] national interest”. Legal mechanisms can therefore only go so far. “Accusing governments or urging them to fulfil their obligations under the international instruments represents only one side of the problem” (Athanasiou, 2005, p.22). It is, of course, important that the Declaration on Human Rights Defenders exists and is used in international public and private discourse, but more widespread calls from civil society across the globe coupled with a greater protective presence on the ground is what is required to change substantially the challenging situations which many human rights activists currently face.
Author: Kate Newman
Amnesty International Available at: www.amnesty.org.uk/ [Accessed 16 April 2010]
Athanasiou, E., 2005. The Human Rights Defenders at the crossroads of the new century: Fighting for Freedom and Security in the OSCE area. Helsinki Monitor, 16 (1), pp. 14-22.
Mahony, L., 2004. Side by Side: protecting and encouraging threatened activists with unarmed international accompaniment. Minneapolis: Center for Victims of Torture.
Mahony, L., 2006. Field Strategies for Civilian Protection. Geneva: Centre for Humanitarian Dialogue.
Peace Brigades International Available at: www.peacebrigades.org/ [Accessed 16 April 2010]
Skanthakumar, B., 2008. ‘The Enemy Within’: Human Rights Defenders in Sri Lanka. The Law Society Trust Review, 19, pp. 1-15.
The Law Society of England and Wales International Human Rights Committee, 2009. Annual Report 2008 – 2009. [Online] Available at: www.international.lawsociety.org.uk/files [Accessed 16 April 2010]