Beet The System ! 2023 - Internationaal aspect

Human rights defenders, criminalisation and the right to food

Michael Phoenix – Human rights investigator, currently Head of Research and Campaigns for the UN Special Rapporteur on the situation of human rights defenders

People taking action to give human rights as they are proclaimed in law tangible meaning in the everyday lives of people, including the right to food, have for decades faced retaliation for their activism. This year marks the 25th anniversary of the UN Declaration designed to empower and protect them, yet the attacks continue. Their struggle tells us something about the contest over the force of human rights.

The right to defend rights

The agreement of the UN Declaration on Human Rights Defenders, 25 years ago this year, marked an important development in human rights concepts.

It’s often noted that the Declaration did not create new rights. Its significance, rather, is found in its acknowledgment of something in the character of the rights already enshrined in international law. Namely, that the protection, fulfillment and realisation of these rights did not lie solely within the purview of states. The Declaration affirmed the agency of people to defend human rights, to get involved in their realisation and development, and made clear that they should be able to count on the protection of the State in response to any retaliation faced for doing so.

The fourteen years of negotiations that preceded the agreement of the Declaration point to the discomfort among some states when it came to accepting this idea. While most governments proclaim support and respect for human rights, all appear determined to retain control when it comes to deciding which of these rights – if any – need to be protected, as well as when and for whom. Human rights defenders (HRDs), who through their actions insist on the universality and indivisibility of human rights, challenge this. Their activism and advocacy creates tensions between them and national authorities, even in states seeking to genuinely engage with defenders as allies in fulfilling their human rights obligations.

Retaliation

In many contexts around the world, the perceived challenges posed by defenders to entrenched power – whether that be political, economic or otherwise – are considered unacceptable by those who believe they stand to lose out, and the retaliation against HRDs that the Declaration called on states to prevent is exercised against them, whether that be by state or non-state actors.

Each year, the killings of hundreds of human rights defenders are documented. This is a major issue. The HRD Memorial project, a joint initiative of a network of human rights organisations, recorded 401 killings in 26 countries in 2022. [1] The year prior it recorded 358. [2] The NGO Global Witness, which records killings of defenders working on issues linked to the environment and land, has documented 1,910 deaths since 2012. [3] Almost all of these killings rest in impunity.

Yet killings are only the most extreme kind of backlash. In some contexts, threats, including death threats are also extremely common, and smear campaigns by public actors are widespread, frequent even in the states seeking professing to champion the work of defenders and the HRD Declaration. Around the world, strategic lawsuits are being brought against defenders by corporate actors seeking to silence criticism of their activities. The Coalition Against SLAPPs in Europe has identified 820 such cases in the continent since 2019. [4] The trend, however, is global. [5] [6]

The scale of the retaliation and its persistence over time is important to take stock of. Since May 2020 and the appointment of the current UN Special Rapporteur on human rights defenders – the independent expert tasked by the United Nations Human Rights Council with promoting the implementation of the HRD Declaration – she has formally raised concerns with states about risks for defenders and retaliation against them on more than 782 occasions. [7] On top of this, many more cases are raised by the expert through other means, yet even cumulatively, this action only addresses a fraction of reported cases of retaliation. The current Special Rapporteur, however, is the fourth holder of the post. Her predecessors, beginning in 2000, also raised hundreds of cases with States, and the negotiations around the UN Declaration on HRDs began in the early 1980s, in response to concerns about attacks on those advocating for human rights.

Criminalisation

Perhaps the most common form of retaliation against defenders is criminalisation, a phenomenon which can be understood not only as the actual opening of criminal investigations and prosecution of HRDs in retaliation for their work, but also as the conflation, in the public eye, of peaceful action aimed at defending human rights with criminal activity, notably through delegitimizing statements by state actors.

In the most egregious cases, where human rights defenders are condemned to lengthy prison terms, even life sentences, the aim is to put a complete end to their activism. In others, where unfounded cases may be opened and sent forward for prosecution only to inevitably be thrown out by the courts, the wager seems to be to wear defenders down, repress them and put pressure on their ties with allies. Where baseless statements as to the supposed criminal nature of peaceful activism, protest and organising are made, support for defenders in society is targeted, and defenders themselves are put on warning. The same appears true where there are threats of criminal proceedings.

The consequences for defenders are heavy. Faced with the weight of the legal apparatus of the state, no matter the robustness of the rule of law and the independence of the judiciary in the jurisdiction they find themselves in, criminal proceedings and even public accusations inevitably create stress, worry and fear. Proceedings can drag on for years, place a huge financial and psychological burden on defenders and their families, and those targeted can find themselves ostracized or under suspicion in their local communities. Many of those targeted will also be subjected to lengthy periods of pretrial detention, isolated from their family and friends, or face other restrictions on their rights while the case progresses.

Beyond the effects for the defenders directly targeted, the opening of criminal investigations, the formalisation of charges, and the threat of conviction all has a dissuasive, chilling effect on others, and it is hard to be dissuaded from the conclusion that this is another important part of the purpose in many cases. Human rights defenders are the people who decide enough is enough and move from indignation to action. Their criminalisation dissuades others from joining them.

Environment, land and the right to food

Among the defenders most affected by criminalisation are those seeking to defend rights threatened by the destruction of the natural environment and unjust governance of access to land, water and other natural resources. That includes the right to adequate food.

Often active in their own communities and frequently from marginalized groups, the struggles of these defenders seek to see the livelihoods of local people protected, yet they can simultaneously be seen confronting broader human rights and environmental impacts and their root causes.

One such case is that of the Honduran campesino leader Jaime Cabrera. Active in defending rights connected with access to land in the Bajo Aguán region of the country, as well as in the process of seeking to address extreme levels of generalised violence in the region, he is currently facing charges of criminal association and illegal occupation of property, among other accusations.

Criminalisation, however, remains only one of the means used to silence and repress defenders. It can also be a sign that things may escalate further. Earlier this year, one of Jaime’s fellow campesino leaders, Santos Hipólito Rivas, was shot dead along with his son. [8] He had previously been criminalised alongside Jaime.

Protection

Both Jaime and Hipólito had been granted protection under Honduras’s national programme to prevent attacks against defenders, as had been ordered by the Inter-American Court of Human Rights for various community leaders in the Bajo Aguán. Protection schemes for defenders exist in many of the states where criminal law has persistently been mis-used to target HRDs, yet they have not been able to address the problem for those most at risk.

In December 2022, the UN Committee on Economic, Social and Cultural Rights – the body which monitors the implementation of the ICESCR – issued a new General Comment on the relationship between human rights and land. [9] Elaborating on the obligations of state parties to the Covenant, the Committee affirmed secure and equitable access to land as vital for the enjoyment of economic, social and cultural rights, and highlighted the issue of retaliation against defenders of the rights dependent upon it, including criminalisation.

The Committee laid out five measures for states to adopt to meet their duty to protect defenders, including public recognition of the importance and legitimacy of defenders’ work, guaranteeing legislation is not used to penalize or obstruct them, and ensuring that state institutions responsible for ensuring they can carry out their activities without fear of retaliation are strengthened.

If implemented, the Committee’s framework would go some way to at least beginning to push back against the climate which sees defenders working to defend rights connected to land so frequently faced with criminal proceedings or the threat thereof. The Committee also addressed the role of businesses in such retaliation, stating : “States parties shall adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the negative impacts caused by their decisions and operations on Covenant rights.”

Defenders, meanwhile, while consistently insisting on the duty of states to support them and cease any form of retaliation against them, are creating their own networks and systems of protection – linking up with other activists in their countries and regions, establishing links with international organisations and human rights actors, putting emergency plans in place and building solidarity in society. In doing so, and in continuing their work in the face of clear, grave risks of retaliation, they are driving progress on human rights and the creation of a more just, equal society.


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