Defend a Defender: Ensuring Human Rights Protection for the Brave

Published by Karina Levina at 13/12/2017

Source: United Nations Photo/Flickr

On September 15 2017, the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) released “The Responsibility of States: Protection of Human Rights Defenders in the OSCE Region”¹“The Responsibility of States”: Protection of Human Rights Defenders in the OSCE Region (2014–2016), Implementation of the international standards outlined in the ODIHR Guidelines on the Protection of Human Rights Defenders, OSCE/ODIHR (2017), http://www.osce.org/odihr/341366, a report covering the period from 2014 to 2016. The publication of this report on the margins of the OSCE’s Human Dimension Implementation Meeting (11-22 September 2017) highlights the critical importance of renewedly calling for the protection of human rights defenders, restrictions, threats and attacks against whom have continued to increase in severity and frequency, despite the publication of ODIHR’s Guidelines on the Protection of Human Rights Defenders in June 2014.

This article reflects upon the situation of human rights defenders in the OSCE area in the light of the aforementioned event and report. In no way should this article be regarded as a comprehensive overview of the situation in the OSCE area. It should be rather perceived as food for thought on how we can collectively improve our lot as human rights defenders working in a common region.

Human Rights Defender: How to Find and Define?

Formally, today’s struggle for the protection and promotion of human rights formally started in 1948 when the Universal Declaration of Human Rights was adopted. But it was only in 1998 that a definition of the term “human rights defender” appeared in the field of international law. The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms²Adopted by the General Assembly of the United Nations by its resolution 217 A (III) of 10 December 1948. See Fact Sheet No. 2, The International Bill of Human Rights (Rev.1), http://www.un.org/en/universal-declaration-human-rights/, also known as the UN Declaration on Human Rights Defenders, defined human rights defenders as those who, “individually and/or in association with others, act to promote, protect and ensure realization of human rights and fundamental freedoms at the national and international levels”³Article 1 of 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, 9 December 1998, UN, http://www.ohchr.org/Documents/Issues/Defenders/Declaration/declaration.pdf . Until then, terms such as human rights “activist”, “professional”, “worker” or “monitor” were most frequently used.

Following the principle “when we define, we exclude”, the Declaration does not specify who is or can be a human rights defender. According to this broad categorization, human rights defenders can be any person or group of persons working to promote human rights, ranging from intergovernmental organizations covering a world’s region to an individual working within his or her local community. Defenders can be of any gender, age, nationality or ethnicity, education, occupation or other background. Human rights defenders may both come from non-governmental settings, such as NGOs or CSOs, intergovernmental organizations, such as the UN or OSCE, as well as governmental and semi-governmental bodies, National Human Rights Institutions (NHRIs) and the private sector⁴Who is a defender? Office of the United Nations High Commissioner for Human Rights, http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Defender.aspx.

Although there are no formal requirements to become a human rights defender, an individual or an entity working in the field of human rights must adhere to some key principles. A human rights defender must accept the universality and indivisibility of human rights as defined in the Universal Declaration of Human Rights. A person or an organization cannot deny some human rights, while advocating for others. For instance, to be a human rights defender, one cannot defend the human rights of men, while denying that women or LGBTIQ people have equal rights. Secondly, it is not vital for a human rights defender to be correct in his or her arguments to be a defender. As long as a person’s or entity’s concerns fall within the scope of human rights, being legally correct is not crucial to defining whether he or she is a human rights defender. This is particularly important in contexts where human rights defenders stand for viewpoints opposing to the official ones, thus classified as oppositionists by state and/or non-state actors and deprived of their rights as human rights defenders. Last but not least, human rights defenders must carry out their human rights activities in a peaceful way⁵Ibid. Wherever a State has a vague or no definition of “extremism”, peaceful actions are vitally important for human rights defenders to prove the legitimacy of their activities, in case of restrictions.

Hence, broadly speaking, a human right defender is defined by what he or she does and how he or she carries out his or her work, rather than by what he or she is. In this sense, each and every one of us concerned with human rights in a particular area, country or globally is a human rights defender. Thus, we all have rights and responsibilities under the UN Declaration on Human Rights Defenders, which states should at least guarantee. At the same time, we are all vulnerable to abuses from state and non-state actors, especially when our work is not deemed legitimate human rights work adopted by a state.

Is Winter Coming for Human Rights Defenders?

The next year of 2018 will mark the twentieth anniversary of the UN Declaration on Human Rights Defenders. Despite the Declaration, there has been no significant improvement to the conditions under which human rights defenders operate around the globe, and in the OSCE area in particular. It can actually be argued that the contexts in some OSCE participating states have become more tense and volatile. Nationalistic and far-right policy shifts accompanied with autocratic and semi-authoritarian rule, further tightened control over the already-shrinking space for freedom of expression, association and assembly, intensified persecution of independent critics, expansion of the power of law enforcement and security agencies, including to control online space – this is a non-exhaustive list of adversarial factors influencing human rights defenders’ work. However, despite the limiting environment, human rights defenders continue their efforts to make sure people’s fears and concerns are at least voiced.

Nevertheless, while striving to protect and realize the rights and freedoms of others, human rights defenders themselves frequently become targets of serious and systematic abuses by state and non-state actors. Due to the nature of their work, they face specific risks, including criminalisation, delegitimisation, marginalisation and interference with their private lives. In 2016, human rights defenders in Russia and some EU countries faced new restrictions to their freedom of association, particularly with respect to accessing international funding, freedom of expression, including in cyberspace, and freedom of peaceful assembly⁶Annual report on Human Rights Defenders at Risk in 2016, Front Line Defenders (2016) https://www.frontlinedefenders.org/en/resource-publication/annual-report-human-rights-defenders-risk-2016. “Smear campaigns and stigmatisation were also widely employed, though legal action remained the most commonly used state tactic”⁷Ibid, p. 6. Vaguely defined “security concerns”, a notion employed in a number of OSCE participating states, are being used to justify arbitrary detentions and searches, frequently leading to deprivations of liberty. The trend of introducing restrictive cybercrime legislation, including in such countries as Belarus, Kazakhstan, Russia, and the United Kingdom, has had significant implications to online human rights activism⁸Ibid, p. 8.

Although international monitoring bodies have not yet established the exact number of human rights defenders at risk in the OSCE region, according to the Front Line Defenders, there are around 119 known active cases against human rights activists in Europe and Central Asia⁹Open Cases, Front Line Defenders, 2017, https://www.frontlinedefenders.org/open-cases. The actual number of those facing persecution for human rights-related work is twice or even three times higher, no doubt. Despite some good news on the plight of several released human rights defenders from Azerbaijan, an increased number of cases in the OSCE area brought under such changes as LGBTIQ-propaganda and non-compliance with registration of foreign funding clearly marks a worrying trend¹⁰Data retrieved from Front Line Defenders website, www.frontlinedefenders.org. Since most civil society activists, including ourselves, are human rights defenders and some of us are involved in online human rights activism, we are increasingly vulnerable to online and offline threats and harassment from state and non-state actors.

The Responsibility of the State. To protect or not to protect?

Despite the fact that the primary responsibility for the protection of human rights defenders lies with states¹¹UN Declaration on Human Rights Defenders, http://www.ohchr.org/Documents/Issues/Defenders/Declaration/declaration.pdf, countries frequently fail to fulfil their obligations to respect, protect and fulfil the rights of human rights activists. This is due to a number of reasons, including, but not limited to, a lack of political will non-recognition of the term «human rights defender» under a given state’s law; broad, vague or non-existent definitions of terrorism and extremism within the context of national security arguments; lack of specific state-guaranteed protective instruments and mechanisms for human rights defenders and/or their implementation mechanism; weak National Human Rights Institutions (NHRIs)¹²“The Responsibility of States”: Protection of Human Rights Defenders in the OSCE Region (2014–2016), Implementation of the international standards outlined in the ODIHR Guidelines on the Protection of Human Rights Defenders, OSCE/ODIHR (2017), http://www.osce.org/odihr/341366; etc. This list is virtually endless.

Thus, to address ongoing issues of concern that hinder human rights defenders’ work and assist states to effectively carry out their responsibilities towards human rights defenders outlined in a number of international legal instruments¹³Budapest Declaration, “Towards a Genuine Partnership in a New Era”, 6 December 1994; Astana Commemorative Declaration, “Astana Commemorative Declaration: Towards a Security Community”, 1 December 2010; Dublin Declaration, “Security of human rights defenders: time for OSCE to act”, 5 December 2012, among others., in 2014 the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) developed voluntary Guidelines on the Protection of Human Rights Defenders. By setting a number of general principles developed in line with international human rights instruments and in close consultation with OSCE participating States and human rights defenders, the Guidelines aim to support the countries in the implementation of their commitments towards human rights defenders¹⁴Guidelines on the Protection of Human Rights Defenders, Warsaw: OSCE/ODIHR, 2014. Available at: http://www.osce.org/odihr/119633.. The Guidelines are recommendatory and in no way can be regarded as a binding legal document. However, they are meant to serve as a “basis for a partnership between governments and human rights defenders to effectively address the challenges and combine efforts with the shared objectives of promoting respect for human rights and fundamental freedoms in the OSCE region”¹⁵Ibid, p. ix.

Despite the voluntary nature of the Guidelines, which, however, reflect international standards, because of the continuous restrictions, threats, attacks and other abuses human rights defenders faced in OSCE, in 2016 OSCE/ODIHR started monitoring the implementation of the Guidelines’ recommendations by OSCE participating states. By collecting solid baseline data for 2014-2016, OSCE/ODIHR attempted to assess critical challenges as well as good practices in the implementation of the Guidelines, thus further supporting OSCE participating states in adherence to the recommendations of the Guidelines ¹⁶“The Responsibility of States”: Protection of Human Rights Defenders in the OSCE Region (2014–2016), Implementation of the international standards outlined in the ODIHR Guidelines on the Protection of Human Rights Defenders, OSCE/ODIHR (2017), http://www.osce.org/odihr/341366. Based on a complex methodology of data collection, analysis and triangulation, the monitoring exercise gathered representative data on the situation of human rights defenders in the OSCE area vis-à-vis the Guidelines, and thus offered insight into the real state of affairs. The corresponding OSCE/ODIHR report on “The Responsibility of States: Protection of Human Rights Defenders in the OSCE Region” was released on September 15 2017 on the margins of the OSCE’s Human Dimension Implementation Meeting, Europe’s largest annual human rights and democracy conference, thus marking the start of the next biennium of continuous work toward strengthening states’ responsibilities towards human rights defenders.

Now the question is how this report can contribute to the enhanced protection of human rights defenders in the OSCE area. The answer is simple: through a set of good practices in place in the OSCE region identified and assessed in the report. The practical strength of this publication lies in a comprehensive approach to the monitoring process, allowing for negative and positive perspectives in reviewing the expertise on the protection of human rights defenders in the region. Aside from naming and shaming some states for continuous persecution of human rights defenders, civil society should embark on promoting and advocating for the replication of good practices identified in the region. For example, in the case of defamation and slander legislation, civil activists might point to the benefits to both human rights and the economy experienced by Montenegro since 2011, when the country decriminalized the aforementioned crime ¹⁷Ibid, p. 61. They might also point to the economic benefit to Finland, Italy, Spain and Sweden through the introduction of regular human rights education ¹⁸Ibid, p. 51. To show the economic impact of human rights is arguably a turning point in advocating for their protection. However, since the data on good practices is scattered around the OSCE region, and not concentrated in one or two countries, it may be extremely difficult to make a comprehensive economic case for the protection of human rights defenders.

What’s next?

It is very difficult to predict the future of human rights, but at present it seems gloomy. We are, of course, too far from advocating for the adoption of a comprehensive legally binding instrument on the basis of the Model Law on the Recognition and Protection of Human Rights Defenders ¹⁹International Service for Human Rights (ISHR), “Ground-breaking Model Law to recognise and protect human rights defenders” (June 2016), available at: http://www.ishr.ch/news/groundbreakingmodel-law-recognise-and-protect-human-rights-defenders., even in a single progressive state. The only way to protect our rights and the rights of others that seems valid for now is to unite and act: through online and offline platforms ²⁰See Protect Defenders EU Emergency Support, https://www.protectdefenders.eu/en/index.html; Front Line Defenders, https://www.frontlinedefenders.org/en; International Services for Human Rights, http://www.ishr.ch; United Nations Special Rapporteur on the Situation of Human Rights Defenders, https://www.protecting-defenders.org/; Worldwide movement for Human Rights, https://www.fidh.org;, through joint communication with regional and international bodies, through mass solidarity actions with every individual or community facing injustice or persecution in the OSCE region and globally as well as through massively bringing good practices on the protection of human rights defenders to the attention of our respective states. What we, however, should always keep in mind and constantly remind the states of is that “there can be no guarantee of fundamental freedoms or human rights in a world where human rights defenders continue to be persecuted for their work ²¹Ambassador Janez Lenarčič, Director, OSCE Office for Democratic Institutions and Human Rights, Guidelines on the Protection of Human Rights Defenders, Warsaw: OSCE/ODIHR, 2014. Available at: http://www.osce.org/odihr/119633..”[:]