Originally published in the Centro Regional de Servicios (CRES)

Luis Enrique Eguren y Alexandra Loaiza

10 August 2023

Introduction

Since 1997, almost 26 years ago, a series of pioneering mechanisms and programmes for the protection of human rights defenders (HRDs) have been created in different countries of the Americas, based on the UN Declaration on the Right to Defend Human Rights. While some aspects of these mechanisms are of great importance, the reality is that in these same countries, attacks against HRDs and their communities continue to be on the rise. How to understand this and what is going wrong?

Unfortunately, we do not have a definitive answer, as existing protection policies have not been subjected to outcome or impact evaluations to highlight gaps in design and bottlenecks in implementation, nor to learn lessons in order to identify key actions and improve the quality of the processes. Attacks against HRDs [1] are a complex problem, as we will discuss below, and bulletproof vests or unsustainable armed escorts will not be able to deal with this complexity.

Faced with this reality, we propose a broader and more integrated view and a paradigm shift that incorporates the logic of complexity into protection policies. The reflections below aim to address, somewhat differently, old questions we are already familiar with. We make these proposals with all due caution, acknowledging the work of local actors in this area, and with a sense of urgency, because after this quarter of a century, it is more necessary than ever for states to effectively guarantee the right to defend human rights.

The complexity approach

The protection of HRDs is an example of very difficult social problems (originally called “wicked problems”). These problems are complex to solve because they involve many actors with competing interests; are affected by numerous different factors (impunity, lack of data and planning, training, resources, etc.); never have a single, straightforward solution, nor can they be solved once and for all [2]. In this paper, we are transferring to protection policies some lessons learned from other complex public policies (such as those tackling corruption, trafficking and gender-based violence) [3].

Attacks and barriers against the right to defend human rights must be analysed as a complex system, with multiple interacting causes which cannot be addressed one by one, but as a whole.

Incorporating the paradigm of complexity into a protection policy thus requires:

• Moving away from a linear approach to policy (based on a direct cause-effect, or protection measure-direct outcome logic) in favour of a systemic approach, in which multiple causes relate to multiple effects, and in which it is therefore necessary to determine what leverage to exercise over which parts of the system, to determine what effects are achieved (whether they are negative or positive).
• Timing: a long-term approach is needed, with plans and actions adjusting and adapting as more is learned about the problem and possible solutions.
• Involvement: it is essential to involve the different actors involved in one way or another in protection.
• Flexibility: a public protection policy must be flexible, in order to be able to try different approaches and allow for a change of strategies if something does not work (evaluating and learning from mistakes helps to find solutions).

In short, a public policy that addresses complex problems must be long-term, inclusive, flexible, transparent and backed by adequate resources. By considering all these factors, the chances of finding effective and lasting solutions to these “wicked problems” are increased.

The necessary goal of a protection policy: the creation of a safe and enabling environment for the defence of human rights

As has been stated in multiple reports and by various actors, especially HRDs themselves, a protection mechanism that is limited to offering security measures (such as bulletproof vests, for example) will never be sufficient, because HRDs face many and complex aggressions (assassinations, prosecution, etc.), as well as discrimination (against indigenous HRDs or defenders of LGBTI rights, for example) and barriers to their actions (stigmatisation, criminalisation, restrictions on the right to association, etc.).

To effectively protect HRDs, public policies must create a safe and enabling environment for the defence of human rights, territory and the planet; an environment that overcomes the insecurity and obstacles faced by different groups of HRDs.

Such a safe environment cannot be based on an ideal situation, but must be based on the recognition that:

• HRDs face insecurity, such as reprisals from powerful actors, sometimes including the state itself, making their struggles profoundly asymmetrical.
• Aggressions occur with greater intensity against historically discriminated groups, meaning that the mere mention of direct violence is not enough to explain the context of insecurity in which HRDs live.
• The defence of human rights faces specific barriers, such as laws that criminalise the right to protest, or social discrimination against women defenders.

Based on these realities, state action must create a safe and enabling environment to overcome these barriers, so that those who defend human rights can do so without fear or hindrance. Such action should be based on the UN Declaration, and incorporating the standards provided by the Reports, Resolutions and Declarations of various international and regional bodies.

For this enabling environment to be created, a public policy must include, in addition to security mechanisms, the prevention of aggressions which requires state actions against (among others) threats, defamation and stigmatisation of HRDs; the fight against their criminalisation, especially when there are conflicts over economic, social and cultural rights; attention to communities defending rights, and especially those defending rights related to land and territory; the particular protection needs of HRDs working on gender and sexual diversity, and other forms of social discrimination, etc.

HRDs’ protection problems are interconnected with other social, political, economic and security problems

Many of the problems faced by HRDs are related to wider problems affecting society as a whole. For example, impunity for attacks against HRDs often occurs within a general climate of impunity, due to the poor functioning of laws and legal systems. The same is true when high levels of homicides or organised crime also affect society at large.

A protection policy must take into account this interconnection between issues. This can be achieved in different ways:

• Public policies should define, in consultation with HRDs and other relevant actors and groups, the problems to be addressed. It is essential to incorporate the perspectives of those who are directly affected by these problems and involved in their management.
• Public policies must take a holistic view that allows one to see the connections between problems. For example, it is important to understand how impunity, criminalisation and corruption are interrelated, and how difficult it would be to effectively address one without taking the others into account.
• There is a need to incorporate an intersectional approach, which involves considering how gender and aspects such as economic power, poverty, historical and cultural discrimination intersect to influence the different situations experienced by HRDs and society at large.

A proper joint definition of the problems to be addressed is a necessary and essential first stepto start building the necessary political will for the implementation of a public policy, as outlined below.

Building the necessary political will to design and implement a public protection policy

Political will to implement a protection policy is a necessary condition, but it is not a given in advance: the public policy itself needs to incorporate the structures and processes to build and maintain that political will. This can be achieved by:

• Actively involving all authorities and key actors in the process, from problem definition, through design, to policy implementation and evaluation;
• Convincing them of the importance of the solutions put forward in the public policy;
• Seeking the commitment and accountabilityof key actors (e.g. through networked or deliberative governance and monitoring structures)

In addition, this policy must be transparent and communicated in a clear and accessible way. People must understand what is being done and why, and they must also be able to participate and give their opinion. Transparency and communication help to build trust and commitment on the part of society.

Broad participation in public policy design and governance

The state must ensure that HRDs and other actors take part in designing, implementing and evaluating the policy. It is crucial that this participation is genuine and effective, meaning that the diverse voices and perspectives of HRDs in a country must be taken into account. This also requires taking into account the perspectives of HRDs of all genders, as well as those of discriminated or marginalised groups, rural or isolated populations, and many others.

In addition, the participation of HRDs and collectivities could be extended to the governance of the public policy, if there is sufficient trust and credibility in said policy. Networked governance is a way of working together, involving different actors, such as government, human rights organisations and other relevant groups. The Governing Board of the Mexican and Honduran protection mechanisms are examples of this.

This form of networking allows for better adaptation and integration of all parties involved, but also requires greater commitment and accountability from the actors involved in such governance.

In short, it is important for the state to involve HRDs and other sectors in the design, implementation and evaluation of public policies. This participation must be genuine and effective, and different dimensions, such as gender and the situation of marginalised groups, must be considered. Furthermore, networking with different actors helps to make policies more tailored, integrated and effective, and may in turn foster political will.

The focus on plans and processes

Most existing protection mechanisms implement static protocols and programmes (i.e. risk analyses are conducted on an ongoing basis and measures are implemented). A protection policy needs to incorporate a focus on plans and processes, including monitoring and evaluation of results.

For example, an annual plan can be made based on the evaluation of the previous year’s results. These evaluations and plans do not always have to cover the whole policy, but only the most necessary aspects, which would allow, for example, to improve the implementation of the policy in a given region, or for a specific group of HRDs.

It is not about measures but about protection plans

Protection plans should have as their main objective to enable HRDs to continue doing their work. It is not enough to grant a few individual measures; more comprehensive and complete protection plans are needed. These plans must take into account different aspects, such as gender, identity, culture and the places where HRDs work. In addition, these protection plans must be monitorable and adaptable to different risks and situations that may change over time. Moreover, like any plan, protection plans need to be evaluable.

A protection policy with gradual growth and including complementary actions by different actors

The incremental approach recognises that a public policy cannot solve all protection problems from the outset, and that it is more realistic to address them in a gradual, step-by-step manner. It is desirable for a policy to be as comprehensive as possible from the outset, but also to include structures and processes that allow for future improvements and progress. This requires:

• Creating quality management, accountability, and monitoring and evaluation structures and processes.
• Searching for and recognising the “small wins” that mark the development of a policy. These achievements show whether and how the policy is progressing, and inform further work on implementation.
• Paying attention to “windows of opportunity” (or political windows), which are political opportunities that present themselves at specific times. These opportunities allow policies to be driven and developed on specific issues, but in order to recognise and use them, protection plans need to be in place, as discussed above.

A protection policy should therefore not be a single block, but can be an interrelated and growing set of policies and decisions [4], including, for example:

• A protection mechanism in itself.
• Arrangements from one part of government or from one state institution with other government or state actors (e.g. to create focal points for HRDs in various ministries, perhaps with the collaboration of an ombudsman’s office).
• Legislative processes (e.g. to work on the repeal of a law against freedom of demonstration).
• Judicial processes (e.g. to create a special prosecutor’s office for the protection of HRDs).
• Administrative processes (e.g. to ensure a “one-stop shop” for HRDs in need of support regarding mental health, or gender-based violence, etc.).

The centralist, top-down approach is not sufficient in the implementation of public protection policies

Any public policy, due to its complexity, is going to experience gaps in its implementation. It is therefore relevant to consider different perspectives and levels in its execution, and to accept that there may be problems or gaps in its implementation. To address this, it is important not only to look at the policy from above (from the government downwards), but also to look at it from below (from the people, affected communities and local implementers upwards). This means paying attention to how policy activities and programmes are carried out at the local level.

It is essential to understand how public officials and other actors at different levels interpret and implement the public policy. Each context within a country may have different challenges and needs, and it is necessary to anticipate and understand how the policy will be implemented, especially in more isolated places or in those with a weaker state presence. This requires:

• Carrying out an analysis of the perpetrators, interests, conflicts, and the willingness and capacity of local authorities and officials, and see how they interact with powerful actors and with HRDs at the same level.
• Reducing ambiguities in approaches to action, and addressing conflicts between different actors, especially at the local level, in a contextualised way.
• Keeping in mind that there are unwritten social norms that influence the actions of local authorities and officials. Many officials may tend to follow local norms that provide them with stability and a sense of security, but these norms may run counter to protection policies, especially if these policies address abuses of power and corruption against HRDs.
• Bringing the influence of the national policy to the local level, by convening meetings, finding locally and nationally informed solutions and plans, implementing follow-up commissions, etc.

The perpetrators’ point of view

When HRDs face attacks, it is important not only to look at what happens to them, but also to look at the perpetrators, i.e. the actors whose interests are affected by the work of HRDs, This is important because:

• They see HRDs as inferior or “subordinate” (especially peasant or indigenous communities).
• They see attacks on HRDs as an effective and simple way to put an end to their whistleblowing work.
• They anticipate that such aggressions will go unpunished, with no negative consequences for their interests.

The fight against impunity for attacks against HRDs should be one of the main objectives of a protection policy. However, the fight against impunity depends largely on the actions of the legislature and, above all, the judiciary. It is therefore uncommon for these actions against impunity to be part of a single decree or law on the protection of HRDs: this set of actions is a good example of the need for an interrelated and growing set of policies and decisions by the different branches of government with a global objective of protection.

Human rights defenders are social agents under collective construction

HRDs often carry out their work in precarious conditions, with limited access to information and marked subjectivity. It is therefore important that they are recognised as social actors in development, who hold and exercise rights, with different identities and points of view on the defence of human rights. Defending human rights is done through the collective exercise of a right, from many different situations, and involves confronting many forms of power at the same time.

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[1] Individuals and collectivities that defend human rights. A category that includes the individual and collective dimension of the right to defend human rights; puts at the centre the action of defence; and takes into consideration the diverse identities of those who defend human rights.

[2] Other examples of complex social problems include corruption, gender-based violence, human trafficking, etc.

[3] Protection International. National Policy Evaluation Series: Evaluability and Reconstructing the Theory of Change of a Protection Policy. Bogotá, August 2021.

[4] A system, technically speaking.