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FOCUS September 2005 Volume 41

Perils in the Defense of Human Rights

Hina Jilani*

* Hina Jilani is the United Nations Secretary General's Special Representative on Human Rights Defenders, and Vice-Chairperson of the Human Rights Commission of Pakistan (HRCP).

Human rights defenders are fundamental actors in any effort to implement the overall international human rights framework. Establishing, promoting and sustaining democracy, maintaining international peace and security and providing or advancing a people-oriented agenda for development cannot be accomplished without the contributions that human rights defenders make. Defenders bring to the fore information on the realities of situations to be addressed without which national and international efforts would be ineffective. They are not only a part of the democratic process, but their presence and activity in a State is in itself both an indicator of democratization and a motor for its further development. They contribute to poverty alleviation, humanitarian assistance, post-conflict reconstruction, and to improving individual indicators of development such as access to health care and adult literacy, among many other activities.

In crisis situations, defenders can monitor the overall situation, rapidly investigate allegations of possible violations and report their conclusions, providing a measure of accountability. They can also provide the international community with independent verification of what is actually happening within an emergency situation, informing the process of taking decisions on possible actions. Their presence is known to have calmed situations and, at times, to prevent human rights violations from being committed. Their work can help to bring these situations to an end and ensure a measure of justice for those who suffered violations.

In post-conflict situations, defenders have played a critical role in sustaining peace and strengthening the prospects for promotion and protection of human rights in post-conflict societies. While support for human rights and democracy in structures of the State is slow to emerge, or may even have suffered a reversal in some cases, civil society has demonstrated a strong resolve to resist authoritarianism and oppression. Civil society actors have played a significant role in inducing recognition by the State of the concepts of participatory democracy, transparency and accountability.

This was not easily done and the international community must give due respect to the struggle through which human rights defenders and other civil society partners have been able to achieve some significant gains. Instead, however, human rights defenders have suffered harm and face grievous threats to their life, liberty, security, independence and credibility. State apparatus, oppressive laws and other tools of repression continue to be used against defenders in attempts to deter them from the valuable work they contribute to the promotion of human rights.

Human rights defenders all over the world, including in Asia, continue to be subjected to assassinations, disappearances, illegal arrest and detention, and torture. In several countries in the region defenders have suffered arrest and detention, unfair trial and denial of due process after false cases were registered against them as a tactic of harassment. Added to these are vilification campaigns and negative propaganda against human rights defenders. In many instances such propaganda is initiated by the intelligence agencies of the State and propagated by unscrupulous use of the media. Such propaganda often precedes acts of violence against defenders and the constituencies they represent. A number of human rights defenders are living in self-imposed exile after having to flee their country to safeguard their lives or liberty. Reprisals and repressive measures have been taken against individuals and groups who have reported human rights abuse to international bodies, including the United Nations human rights mechanisms.

Greater risks are faced by defenders whose work challenges social structures, economic interests, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Women human rights defenders, in particular, are targeted by various social and private actors, such as religious groups and institutions, community or tribal elders, or even members of their own family. They become particularly vulnerable to prejudice, to exclusion and to public repudiation, not only by State forces but by social actors as well when they are engaged in the defence of women's rights.

Flaws in the agenda for economic development, pursued by many states of the region, are amply reflected in the growing poverty and social exclusion of large sectors of the population. Serious violations of economic, social and cultural rights have become engraved in actions of the state. Affected populations find that in the current environment of globalization their own governments are either unable or unwilling to redress the difficulties they confront. Exploitation of labor and depletion of the environment are some of the serious forms of violations resulting from the new economic arrangements. Indigenous populations are often particularly affected by such violations.

The situation has worsened owing to the process by which multinational corporations and other non-State agents have acquired an enormous degree of control over the life and liberties of the peoples of this region. States perceive their responsibility to protect the interests of multinationals as an imperative to be pursued even at the cost of the rights and livelihood of local populations. Economic policies and the social consequences of the operation of some multinational entities have led to protests against these entities, through peaceful demonstrations, information campaigns, legal proceedings or other activities by human rights defenders (for example with regard to environmental concerns or labor rights).

These trends could lead to a further increase in violations and a future crisis of human rights in the region. The imperative to find approaches to economic development that secure people's economic interests through means that do not conflict with their economic, social and cultural rights has, therefore, become of critical importance. Attention must be given to ensuring respect for the right to react peacefully to economic, social and cultural rights concerns. New approaches should take into consideration the role and responsibilities of private sector corporations, including multinationals, for respecting human rights standards.

Human rights defenders in Asia are greatly concerned that certain trends in the region are exacerbating conditions that result in human rights violations. An appreciable weakening of the rule of law has been observed in different countries of the region where insufficient, not genuinely representative democracies prevail with little or no space for citizen participation, and without accountability or transparency. At the same time, public institutions are increasingly used to perpetuate and strengthen the interests of certain sectors. Institutions for policing and prosecution suffer from inefficiency and corruption, and the independence of the judiciaries is severely strained. Internal monitoring systems are either non-existent or have failed to enforce compliance with human rights norms in practices or policies adopted by state institutions. Severe restrictions on the freedom of information, expression and assembly imposed, particularly in the name of security or integrity of the state, in many of the countries in the region have limited the access of human rights defenders to information or sites of violations. These restrictions have serious implications for the performance by defenders of their monitoring, reporting and advocacy functions.

National laws in many countries do not provide a suitable legal framework for the full realization and enjoyment of human rights. Numerous laws exist which are incompatible with international standards and have become tools for giving legitimacy to State actions that violate human rights. Despite constitutional guarantees, rights have become subject to restrictions prescribed by law. It is these restrictions and the use of powers granted under such laws that have been widely used to curb and limit the activities of human rights defenders. The freedom of association is increasingly being infringed in many countries through laws and regulations that impose a wide range of restrictive conditions on the registration, management, operation and financing of non-governmental organizations (NGOs). Such practices and restrictive laws have been applied to selectively deny legal status to NGOs critical of government policies and have forced defenders to continue their work without legal protection, to terminate their activities and, in some cases, even to flee their country.

National security laws have been imposed in the severest forms in many countries of Asia. Sometimes these laws have been imposed following a declaration of martial law or a state of emergency. In some countries such laws are a permanent part of the domestic legal framework, weakening the effects of any guarantees of fundamental rights and adversely affecting the efficacy of the mechanisms for the enforcement of fundamental rights. In areas of conflict or political tension, emergency or special laws are imposed, suspending fundamental freedoms and restricting recourse to civilian courts.

In several countries of the region armed conflict, struggles for the right of self-determination and movements for democracy form the backdrop for the work of human rights defenders. In the current climate, upholding human rights and fundamental freedoms is being portrayed in a number of countries as a threat to national and international security. Against this stark reality, human rights defenders are finding themselves under siege. Peaceful pro-independence activists are being portrayed as disseminators of propaganda likely to harm the State, as a threat to national security, as attempting to overthrow the Government and as aiding and abetting terrorism. While spuriously equating legitimate and peaceful advocacy of the right to self-determination with terrorism - however defined - is not a new phenomenon, it is certainly assuming a greater resonance and human rights defenders working for the realization of peoples' peaceful quests for self-determination, in particular, are experiencing some of their darkest hours.

The menace of terrorism poses a serious threat to peace and security, and acts of terrorism have frequently targeted human rights defenders advocating the promotion and protection of human rights. Those striving for the rights of minorities or women, advancing the cause of religious tolerance and accommodation of ethnic or racial diversity, or resisting trends of ultra-nationalism have been some of the first victims of forms of extremism that have become the major cause of terrorism. Human rights defenders are in the front line to combat these trends in order to preserve the norms of peace and democracy, as conditions that are fundamental for the promotion, protection and enjoyment of human rights. The struggle of human rights defenders against terrorism precedes the events of 11 September 2001 in New York and has been a visible human rights activity in parts of the world where the roots of terrorism are strongest. Yet it is these defenders who have become the leading voices in pointing out that many anti-terrorism measures are eroding human rights norms, and are insisting that the imperative of security will not be served by violating human rights and can only be achieved within compliance of these standards.

Human rights defenders have detected a direct connection between the severity of human rights violations and the expanding role of the military in some countries of the region. This has allowed the military sector to gain influence and encroach upon political spaces, especially when the military is in control of governance. It has also had its effects on the capacity of civil societies to develop. Serious forms of abuse have been detected during military operations carried out in response to security concerns or government campaigns against crime. Particular areas are designated as zones of military operation, barring any independent monitoring or observation of State action. Special powers conferred on the military have often expensed with fair judicial procedures or any civilian control over their operations.

Under these conditions human rights standards suffer derogation because of the imposition of a completely separate system of checks and balances and of justice. Accountability and transparency is seriously impaired. Freedom of movement and assembly, and access to information is particularly affected in such situations. Such an environment further contributes to impunity for human rights violations. Evidence of rape, torture, deaths in custody, extra-judicial executions and disappearances is well documented. Most of these violations result directly from the operations and intelligence and surveillance activities carried out by the military, and some because of the criminal activity of individual soldiers.

Even when civilian authority has been established or re-established, military presence still dominates the structures of authority and democratic culture becomes difficult to promote. It has been noted that in some countries national human rights institutions have not been given powers to investigate allegations of excesses committed by members of armed forces. There are also reports of armed forces systematically failing to comply with court orders concerning arbitrary actions that violate human rights. The military's continued lack of accountability is being questioned and there is a greater demand for transparency and public scrutiny of allegations of abuse by the military. This will become possible only if the measures and mechanisms allow comprehensive monitoring of actions and operations of military and security forces in order to prevent human rights violations.

It is now well documented that, with the exception of the police, military and State intelligence agencies by far outnumber others as perpetrators of abuse against human rights defenders. In view of the adverse effects of militarism on human rights activity and the high level of immunity that the military enjoys this trend is seen as a serious threat to the promotion of and protection of human rights in the region. As a response to the deteriorating situation of human rights defenders, the United Nations adopted the Declaration[1] on human rights defenders in 1998. On the one hand this was recognition of the dangers that human rights defenders confront and, on the other, a step taken by the international community to create norms for the protection of human rights activity. The Declaration makes it the primary responsibility of the State not only to guarantee the safety of human rights defenders, but also to ensure that conditions exist in which they can carry out their activities. Respect for human rights necessarily includes recognition of the legitimacy of the work of defenders. States must, therefore, take all possible measures to create an environment conducive to the defense of human rights.

Independence, credibility and transparency are cornerstones of the efforts to promote and protect human rights. Repressive action by the State against human rights activity affects the transparency and openness with which human rights defenders can work. Such circumstances increase the risks for defenders and can undermine the credibility of their work. On their part human rights defenders must also be fully conscious that transparency, objectivity, non-partisanship and accuracy in the communication of information are essential elements of all activities in which they engage. It is only through these qualities that defenders can maintain respect for their work and withstand any attempts to discredit them, or undermine their public image.

Public support for the activities of human rights defenders is in itself an important means of protection for them. This support can be generated and enhanced by increasing public awareness and understanding of their work and the implications and impact of the policies and practices that defenders seek to eliminate or promote. The Declaration can be an effective tool in this regard. The media can play an important role in mobilizing public opinion in support of human rights defenders and in providing information on the Declaration. Human rights organizations should ensure accessibility and prompt action, lobby for support of their protection initiatives and build contact with the media, including reinforcing and institutionalizing networking with journalists.

Creation of coalitions, national and regional networks for communication of information, monitoring groups and support groups is a development that is extremely reassuring. These networks are in themselves mechanisms for the protection of human rights defenders. Taking practical steps to protect persecuted defenders should be an important part of the responsibilities of coalitions. Urgent action networks are already functioning in the region and should be utilized more widely as a mechanism for the protection of human rights defenders. Regional initiatives to create monitoring groups and evacuation teams to respond immediately in situations where human rights defenders are in grave and imminent danger can strengthen the element of protection.

The Declaration has given the civil society a "role and responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes". Human rights defenders can only fulfil this responsibility effectively if they have a secure and enabling environment in which to function. Any commitment to the defense of human rights at the national, regional or international level must, therefore, be tested on the basis of the degree of security that human rights defenders have in carrying out their work.

The main regional human rights groups in the region should establish a combined task force for this purpose. Special attention must be paid to the safety of human rights defenders from marginalized segments of society, as they are more vulnerable to risk. For gathering and conveying information, better access must be provided to those working in remote areas. Human rights defenders working with refugees, or those who have to operate from outside for the defense of human rights in their own countries, are especially vulnerable and should be supported by the human rights community at the regional level.

For further information, please contact: Hina Jilani, AGHS Legal Aid Cell, 131-E/1,Gulberg III, Lahore , Pakista; ph (9242) 879 2730422; e-mail: aghs@brain.net.pk

Endnote

1. The United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA resolution 53/144, 9 December 1998.


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