Key elements - Focus: The Observatory On Public Policies For Defenders

PUBLIC POLICIES For THE RIGHT TO DEFEND RIGHTS: Key Elements

“Everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”. – Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms, 8 March 1999

WHO ARE HUMAN RIGHTS DEFENDERS?

Human rights defenders (HRDs) are individuals or groups who, individually or with others, carry out peaceful activities in the defence of human rights. Human rights defenders are identified above all by what they do (exercising their right to defend rights), regardless of their profession, gender, race, religion, ethnicity or group association.

Sometimes, defenders are also referred to as “human rights activists”, “human rights workers” or “social justice leaders”. The term “human rights defender” has been used increasingly since the adoption of the Declaration on Human Rights Defenders in 1998.

The acronym “HRDs” refers to both women and men human rights defenders, in an effort to keep the term broad and inclusive, and with the purpose to further highlight the diverse identities it represents.

We also consider it important to look at HRDs taking into account the inherent collective dimension of human rights defence. As stated by the Inter-American Commission of Human Rights, “human rights defenders also include trade union leaders, peasants and community representatives, indigenous leaders and those of African descent, who carry out activities to demand and promote the rights of their respective populations” (IACHR, 2006)

Human rights defenders exercise their right to defend rights in many different ways. They do so when, for instance, they use their right of assembly and association to do collective actions around the defence of rights; they use their right to demonstrate and engage in peaceful protest; or they exercise their freedom of expression to disseminate information, start campaigns or do public denounce against actors who violate rights.

It is important to note that although the right to defend human rights is predominantly claimed by human rights defenders, it is a universal and fundamental right for everyone. We use the term human rights defenders to more easily identify a group of individuals practicing the right to defend human rights. This does not mean, however, that anyone practicing the right to defend human rights identifies as an HRD, nor that individuals not identifying as an HRD would fall outside the scope of this right.

The right to defend rights overlaps with many other rights, including:

the right to freedom of expression and opinion
the right of assembly and demonstration
the right to form associations and NGOs
the right to gather and disseminate information on human rights
the right to denounce policies or actions that violate human rights
the right to seek, receive and use resources for the purpose of protecting human rights (including receiving funds from abroad)
the right to participation

WHY PROTECT THE RIGHT TO DEFEND HUMAN RIGHTS?

In many contexts, exercising the right to defend rights is very dangerous. Many human rights defenders around the word suffer harassment, criminalisation, threats and attacks due to their human rights work. When denouncing human rights abuses and violations, HRDs are often attacked, censured or stigmatised. As a result, their rights are seriously violated – not only their right to defend rights, but also their fundamental rights, such as the right to life, freedom of movement, personal integrity, and privacy.

HRDs play a crucial role in creating a society that protects the rights of all. They fight for the fundamental protection of all human rights, promote a high standard for our society and give visibility to human rights violations. We all deserve a safe environment where we can defend rights without fear of harassment, threats and attacks. In a society where the right to defend human rights is not recognised or protected, all human rights will be negatively affected.

THE ROLE OF STATES IN PROTECTING HUMAN RIGHTS DEFENDERS

States are the primary dutybearer of the right to defend human rights, which means that they have the obligation to protect and enable the right to defend human rights in their country. This includes the obligation to protect the right to defend human rights and the particular rights it encompasses (such as freedom of expression, right of assembly, right to demonstrate, right of association, right to disseminate information, amongst others).

WHAT IS A PUBLIC POLICY FOR PROTECTION OF THE RIGHT TO DEFEND HUMAN RIGHTS?

A “public policy for protection of the right to defend human rights” (a protection policy herein) is a set of institutional laws, mechanisms and actions that develop and coordinate concrete actions for State authorities to promote and protect individuals and groups who engage in human rights defence. The core principle of such public policy should be to consider HRDs not just as “objects of protection”, but as “subjects of rights”. Taking this premise as a basis implies that the main goal of a public policy should not be as narrow as to react against attacks and aggressions, but a broader one: to enable the free exercise of the right of every person to defend human rights, and to guarantee the right of everyone to be a human rights defender.

A public policy should thus aim at addressing the root-causes of violence against HRDs (preventing stigmatisation, creating an enabling environment, provide space enough for their activities, eliminate barriers) and not just the “tip of the iceberg” (reacting when attacks occur).

The set of institutional laws, mechanisms and actions forming a public policy should be based on the UN Declaration on HRDs, and incorporate the standards provided by the Reports, Resolutions and Declarations issued by the various international and regional bodies.

A public policy to protect the right to defend human rights should include:

Prevention of:

Attacks on the lives and physical integrity of HRDs
Acts of aggression committed against HRDs by non-state actors (private sector, organised crime)
Violations of HRDs’ rights to assembly and association, and freedom of expression and movement
Defamation and stigmatisation of HRDs and their collectives
Arbitrary detention and criminalisation of HRDs

Monitoring and analysis of:

Documenting violations and abuse of HRDs, identifying groups at particular risk
Additional risks faced by HRDs because of their gender
Active discrimination against sectors of the population and in particular linked to their human rights defence activity

Elimination of:

Restrictive laws that criminalise and hamper the right to defend human rights (peaceful assembly, freedom of expression, access to information and dissemination of information
Restrictive NGO laws that hamper access to funding and put administrative and financial restrictions
Barriers to accessing existing public policies (gender, language, geographical isolation)

Evaluation and coordination:

Evaluate the real results of the measures and actions adopted through the public policy
Adopt effective and transparent ways of evaluating the level of risk faced by HRDs
Ensure coordination amongst institutions, particularly strengthening the role of National Human Rights Institutions

Development of standards by the Inter-American Court on Human Rights (IACtHR)

The obligation of states to protect HRDs has been recognised both by the Inter-American Commission on Human Rights (IACHR) and in the jurisprudence of the Inter-American Court on Human Rights (IACtHR). Based on PI expert advice in two emblematic cases against the states of Honduras and Guatemala, respectively, the IACtHR rulings provided guidance on at least seven minimum requirements for HRD protection public policies:

Ensure the participation of HRDs, civil society organisations and experts in the elaboration of norms and programmes intended to provide them with protection;
Create protection programmes with an integral and inter-institutional approach, while ensuring that immediate protection measures are taken at the point HRDs provide information to the authorities;
Adopt a model for the analysis of risk in order to adequately determine the risk and the protection needs of each HRD or group;
Create a system to manage information concerning the state of prevention and protection measures for HRDs;
Ensure that protection plans respond to the specific risks of HRDs and to the characteristics of their work;
Promote a culture of legitimisation and protection of the work of HRDs;

KEY ELEMENTS TO BUILD A COMPREHENSIVE PROTECTION PUBLIC POLICY

Public policies for the protection of HRDs should seek to eliminate the factors that limit the exercise of the right to defend human rights. How does this problem come to be included in the agenda of a particular government? Who defines the dimensions of the problem and how is this done? How are the aspects that are to be included in such a policy decided upon?

The conjunction of several factors can determine whether the problem is included in the political agenda. These include:

A clearly threatening context;
The existence of networks (either formal or informal, involving HRDs organisations)
HRDs’ access to policymakers, and the degree of openness by the government.

Once these factors are somehow present in a given country, a debate on the need of a public policy for the protection of HRDs might arise.

In the roadmap towards an effective public policy, the following elements should be considered to increase chances of success:

Building political will:

The adoption of effective protection policies needs to involve necessarily all relevant State representatives, in a process led by the government.

All key authorities and State actors with a stake in protection of HRDs need to be part of the debate so to ensure a shared analysis of the problem, a common understanding of each other responsibilities and a common space for the search of solutions.

Ensuring participation of HRDs and civil society actors:

Participation of HRDs and other civil society actors in the design process of protection policies must be real, effective, and voluntary. It must involve all categories of HRDs in a given country. Inclusion must be ensured by facilitating the participation of potentially marginalised groups, discriminated groups, as well as communities from rural or isolated areas. Safety of participants must also be taken into account.

The public policy should be an opportunity to build effective networked governance, as a way to open up spaces for participation to ensure a level of agreement and a shared objective. The public policy should then be built through interactions and negotiation involving the different actors, ensuring that all perspectives and interests are present.

Defining the problem from a structural perspective:

It is very important to avoid reductionist approaches when defining the objective of the public policy, which should not be only to address aggressions committed against HRDs.

A comprehensive public policy should include an analysis of the root-causes of attacks against HRDs, such as organised crime, economically powerful sectors and the co-optation and capture of the state.

The protection of HRDs requires the structural violence they face to be approached using an intersectional approach that takes into account matters including class, economic and gender power, as well as the impact of longstanding discrimination against certain groups.

Maintaining a broad and inclusive definition of HRDs:

“Human Rights Defender”, or HRD, is an abstract term that may be combined with other identities –for instance, a woman, a peasant farmer, educated or illiterate, young or old, urban or rural, etc. HRDs live in diverse situations and realities that condition their experiences.

It is important that public policies consider this complexity and incorporate aspects such as gender and intersectionality, the multiple viewpoints that exist of the HRD, and the diverse identities – HRD, trade unionist, peasant farmer – that they hold.

Including analysis of the perpetrator:

The focus of protection policies should not only be on the individual HRD, in isolation from other social actors. Attention must be paid to perpetrators, who frequently remain “out of focus” as a player. If insecurity of HRDs is to be addressed, the perspective and actions of the perpetrator must be analysed and taken into account.