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Declaration on Human Rights Defenders

Commentary to the Declaration on human rights defendersCommentary to the Declaration on human rights defenders
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Special Rapporteur on the situation of Human Rights Defenders
Emergency situations


Emergencies in the context of the defence of human rights

This report does not attempt to provide any formal definition of ‘emergencies’. The Special Representative uses here the word “emergency” to refer to political, social or economic conditions under which there is a departure from the normal legal regime, and the limits of state authority are, de jure or de facto, expanded beyond the scope of authority ordinarily prescribed. Her focus on emergencies includes, but is not limited to, formally declared ‘states of emergency’.

It is in the context of armed conflicts that conditions comprising an emergency have most commonly occurred. Emergencies exhibiting these conditions have also appeared in situations that are below a thresh-hold of a raging conflict, but in which there is resort to exceptions that raise fundamental concerns regarding human rights. Emergencies may occur in one particular part of a country or engulf the whole state. Extra-judicial killings; disappearances; kidnapping; torture; rape; arbitrary arrest and detention; internal displacement; vast numbers fleeing as refugees; and the recruitment of children by armed actors are among the types of human rights concerns that are common to emergency situations. These circumstances are often paralleled by little or no official investigation into human rights violations committed and subsequent impunity for these acts. The full range of civil, cultural, economic, political and social rights is frequently at risk.

Some of the emergencies of concern to the Special Representative have been on the agenda of the United Nations Security Council within the past 3 years in the context of its international peace and security focus. The 2002 and 2003 agendas of the CHR also included consideration of several States experiencing conditions corresponding with the Special Representative’s focus on emergencies. The Special Representative notes, however, that while some emergencies of concern to her have remained off the agendas of the Security Council and CHR this should not obscure the fact that the role and situation of human rights defenders in these States deserves urgent attention.

B.        The role of defenders in emergencies, and the violations they face

As emergencies occur and develop the human rights problems common to these situations are often so serious that the presence and action of defenders is urgently required. In an environment of widespread human rights abuse and of a lack of clarity as to how, when and by whom abuses are being committed, the role of human rights defenders is at its most crucial. By engaging in the defense of human rights through a variety of actions, defenders endeavor to preserve these rights despite conditions that make them most vulnerable to erosion. More significantly, human rights defenders contribute to limiting the scale of human rights violations and their impact on people affected by emergency situations.

Defenders can monitor an overall situation, rapidly investigate allegations of possible violations and report their conclusions, providing a measure of accountability. They are able to provide support to victims and persons who are trying to escape violence. They provide emergency shelter, food, water and medical care to help a population survive a period of emergency. Their presence can help to calm situations and, at times, to prevent human rights violations being committed. Their work can help to bring these situations quickly to an end and ensure a measure of justice for those who nevertheless suffer violations. They also provide the international community with some independent assurance of what is actually happening within an emergency situation, informing the decision making process on possible actions. This role can be a crucial support, not only to the victims of human rights violations and the State authorities most immediately concerned, but also to the United Nations Security Council and other bodies.

The Special Representative is deeply concerned that, in many current and recent emergencies, at a time when they are needed most, defenders are often prevented from conducting their human rights work. In addition, where defenders have tried to fulfil their role they have themselves been vigorously targeted in what amounts to an actual policy to silence them. Legitimate limits may be placed on the exercise of rights in a state of emergency. However, human rights activity in itself cannot be suspended, whatever the exigencies of a situation may be.

In many States with emergencies security forces exercise, officially or de facto, special authority to conduct arrests and detentions outside of normal procedures and human rights guarantees. Government may, in addition, have assumed authority under the rules of a ‘state of emergency’ for the derogation of some of its international human rights obligations. Further, the negative impacts of national security legislation on defenders are amplified in situations of emergency.

1.     Restrictions on Access

To be effective, human rights defenders require access to civilian populations within areas of emergency. They must be allowed to travel within the region, to meet with civilians and belligerents, to access IDP camps, to enter and inspect places of detention. They must be able to gather the information they need and to communicate it to the outside world. The Declaration on human rights defenders assures defenders of the right to conduct these types of actions.

In practice, the Special Representative has observed that as emergencies develop, defenders have a decreasing capacity to access places and people required to perform their human rights role. Where actual armed conflict is present, limitations on access are partly the result of the effects of the conflict. However, in both conflict and non-conflict emergencies, it is clear that deliberate and concerted efforts are made to limit the access of human rights defenders and to prevent their presence all together.

International human rights defenders have often been denied visas to enter a country where an emergency is occurring. Where they have been able to obtain visas, bureaucratic barriers have been used on many occasions to prevent the access of defenders to emergency areas within a State where human rights violations are thought to be occurring. Where access has been eventually provided it is often long after the alleged violations occurred making the task of collecting information much more difficult.

Defenders have been prevented from speaking directly with witnesses and victims of violations through denial of access to IDP camps and places of detention, by a refusal to allow questioning to take place in private, or by direct intimidation of the local population with whom defenders wish to speak. By way of example, in more than one State, authorities have dressed prison guards as detainees and placed them among a detainee population while human rights monitoring missions were being conducted, using the intimidating presence of these officials to discourage genuine detainees from bearing witness to violations.

These and other practices have been used against defenders working in the context of both national and international human rights NGOs as well as humanitarian and development organizations. United Nations human rights officials have faced the same problems with their mandates providing for minimum conditions of access to places, persons and documents not always respected.

2.     Human rights defenders as targeted victims of violations

In parallel with limitations on the access of defenders in emergency situations, they have themselves become the deliberate targets of human rights violations. They have been killed, ‘disappeared’, tortured, targeted by death threats and intimidation, submitted to arbitrary arrest and detention and deported. Many examples exist of defenders being publicly accused by State authorities of being allied with opposition groups, or accused by opposition groups of being allied with the State. In some instances, State authorities or rebel group leaders have made statements to this effect on radio and television media, following which the defenders in question have been the victim of attacks and threats.

When denying access to a region, State authorities or armed groups sometimes argue that, because of prevailing conditions in the region, they are unable to guarantee the security of defenders. When, subsequently, a defender is killed or disappears authorities have renounced any responsibility. In some situations such attacks may be beyond the control of belligerents. However, there are too many defenders who have clearly suffered harm because they uncovered or made public their concerns regarding human rights violations occurring in these areas. These circumstances give credibility to allegations that ‘security’ arguments are used to obstruct the work of defenders and then as a cover for deliberate targeting of defenders in these situations. The Special Representative is well aware that in many situations of conflict human rights defenders have been harmed by non-state elements that may not be under overt or covert control of the state. Nevertheless, the responsibility for creating conditions necessary for the enjoyment of rights and taking legal, administrative and other steps to ensure that the rights referred to in the Declaration are effectively guaranteed, lies primarily with the State. While impunity for human rights violations at any time has become a serious human rights issue, in situations of emergency impunity is more prevalent and of greater potential harm to the promotion of human rights. The Special Representative deeply regrets the high rate of impunity for violations of the rights of defenders.

International human rights defenders have suffered all of the acts described above, in the last year alone. However, national defenders, and particularly nationals from the same region as the prevailing emergency conditions, are the most vulnerable. The Special Representative draws two related conclusions from this. Firstly, that the ‘international’ status of human rights defenders does provide a certain level of protection and encourages somewhat better respect of the Declaration with regard to their work, although one that remains far below the standard required. Secondly, that State authorities, and non-State actors, are much more ready to violate the Declaration with regard to their own nationals emphasizing the need for greater focus of international attention on the situation of national human rights defenders.

C.        The importance to the international community of the work of human rights defenders in emergency situations

A very large proportion of the Security Council’s time is occupied with considering emergencies affecting international peace and security, most notably those involving armed conflict. Human rights violations are almost invariably a root cause as well as a consequence of these armed conflicts, and impunity for violations committed perpetuates both the violations and the conflicts themselves. It follows that any action to address human rights violations at their outset, to limit their impact and to rein in impunity can be central to preventing or at least limiting the extent of emergencies. Human rights defenders contribute in all of these areas. National defenders are at work within a society before any emergency begins and they are often the most committed to preventing violations and bringing them to an end. They have an intimate knowledge of a local context and, with suitable international support, can draw attention to human rights concerns as they emerge.

The work of defenders is drawn upon to inform the Security Council of ongoing situations and provides a support to United Nations actions to address concerns. One can argue that it is partly through the palliative work of defenders that many countries with near-emergency situations have remained below the thresh-hold of the Council’s focus and so off its agenda, freeing time to address the most urgent situations. Defenders in emergencies help to ensure that the monitoring of United Nations human rights mechanisms - including Special Rapporteurs and Treaty Bodies - can continue, even where emergency conditions last for many years. Based outside the country upon which they are mandated, country specific Special Rapporteurs of the CHR would have no alternative source of information other than that provided by the State if it were not for the support of defenders. Indeed, it is often upon the basis of information gathered by defenders that the Commission is able to determine the need to actually establish a Special Rapporteur mandate. As the International Criminal Court (ICC) becomes established it will rely, in part, upon human rights defenders present within emergencies to gather first-hand information and to provide testimony. One can argue with conviction that a link between defenders and the ICC will ultimately have a powerful preventive effect with regard to human rights violations in emergencies.

The work of human rights defenders is fundamental to supporting the goals of the international community and the United Nations in emergencies. Any restriction on defenders and their work will also, ultimately, have a negative impact on the goals of the international community.

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