Reprisals: Why Defenders Need Defending
Tania Morris Diaz
Vol. 37 Associate Editor
Ordinarily, the term ‘reprisal’ is used to refer to a State’s deliberate violation of international law as retribution directed at another State for breaking international law. However, in the lesser-known context of international human rights law, reprisals are measures taken with “the intent to deter or punish individuals who have opposed legislative or policy framework adopted by public authorities.” The difference is that reprisals in the international law context operate horizontally among States, while reprisals in the international human rights law context operate vertically among various actors. Essentially, reprisals occur when “a state violates international law norms if it commits an act of violence against, or intimidates, or curtails the rights” of an individual. A state also violates international law norm if it fails to act in a way that contributes to a “climate of impunity and arbitrariness.” The ambiguity of the term ‘reprisals’ garners some criticism, however. It invites the assumption that such a retaliatory act is in response to unlawful behavior and thereby legitimizes the sanctions whilst accepting authorities’ denial of judicial guarantees. Reprisals, by their nature, are crosscutting of a range of rights. They involve interactions among State and non-state actors, individuals and organizations, private and non-governmental all under the framework of international norms and domestic, regulatory legislation. Often the targets of reprisals are human rights defenders (‘defenders’). Defenders are not defined by any international text. Instead, guidance is provided by the 1998 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (also known as the Declaration on Human Rights Defenders).  Defenders are said to be individuals or organizations that promote the protection and realization of rights and freedoms at national and international level. This includes activists, civil society organizations, lawyers, judges, journalists, NGOs, INGOs, or volunteers working in the area of economic, cultural, social, political and civil rights. They are defined not by their title but by their activity. Reprisals delegitimize the work of defenders and are a breach human rights obligations. For example, laws and regulations on public order, morality, nationality security, and emergencies, and laws to register and regulate the management of organizations, are often misused to prevent defenders from operating freely. Abuse of such legislation hinders the work of defenders (whether an individual through an increased likelihood of prosecution or an organization through burdensome regulations), which in turn interferes with the rights of freedom of association, expression and assembly. As a result, defenders often face arrest, prosecution, detention and conviction of a wide range of crimes. In many instances, States have a tendency to adopt offenses that are broadly-defined or ambiguous such as “sabotage, rebellion, unlawful association, intimidation, endorsing criminal acts, kidnapping, and perturbation of public order.” Legal measures taken against defenders coupled with the absence of further investigation evidences a breach of provisions of the 1998 Declaration on the Right and Responsibility of Individuals. The issue of States criminalizing human rights defenders was noted in 2003 by Special Representative Hina Jilani, in 2011 by the General Assembly, and in 2012 by Margaret Sekaggya in her report to the Secretary General. Considering the context in which reprisals are carried out, inevitably, the tension lies between States’ sovereign right to demarcate fundamental freedoms domestically and States’ obligations in assuring such freedoms respect international standards. A component of guaranteeing that States are fulfilling their international obligations lays in the interaction between civil society actors and international human rights mechanisms. For defenders that specifically engage with the United Nations human rights mechanisms, reprisals violate certain treaty-based guarantees of the right to communicate with the UN system. The right to communicate, as such, is not protected in treaties, but instead, the obligation of States to protect individuals from alleged violations, acts of intimidates, ill-treatment, violence or coercion is defined in several treaties. For example, Article 13 and 16 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) protect the complainant and witnesses. The Committee against Torture has found that even those providing information to the UN experts must be protected. Additionally, the 1999 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women defines the obligations of State Parties to ensure individuals are not intimidated, as does the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. However, an inherent risk exists with every UN communication country report or high-level international inquiry. This is evidenced with numerous cases of defenders having been “assaulted, abducted, arbitrarily detained, threatened, defamed or otherwise harmed as a result of such engagement.” With regards to the safety of those who seek to cooperate with international human rights mechanisms, there exists a lack of proper protection mechanisms. The main gap in protection against reprisals can be identified as a lack of follow-up between special procedures and civil society, as well as between the Human Rights Council and member states. Yet, the need for protection is stark as problems persist, and in some cases worsens, for defenders. Most recently, Berta Cáceres, a Honduran environmental activist and co-founder of the Council of Popular and Indigenous Organizations of Honduras (COPINH), was killed by unidentified gunmen on March 3, 2016. Two weeks later, Nelson García, also a member of COPINH, was killed. Meanwhile, the sole witness to the murder of Ms. Cáceres, Gustavo Castro, a Mexican citizen, was given a court order preventing his departure for a month in order to further assist investigators. Amidst widespread insecurity and impunity, fears have mounted that Mr. Castro will be framed for the killing of Ms. Cáceres. His lawyer points out that his detention is illegal and arbitrary under Honduran law and has asked for Mexican authorities to intervene in the investigation, which is permitted under a bilateral treaty between the two States. Ms. Cáceres had been fighting the Honduran company, Desarrollos Energéticos S.A. (DESA) after Honduran Congress passed a law that conferred contracts to DESA to build hydroelectric dams along the Gualcarque River. This territory is considered sacred to the indigenous Lenca people. Ms. Cáceres had organized legal actions and took the case to the Inter-American Commission on Human Rights (IACHR). These are some of the most extreme examples of reprisals, in which a defender is killed for their opposition. While in the case of Ms. Cáceres, the act is not tied to a State actor, there are other examples in which the State itself is stigmatizing the works of defenders. For example, in Venezuela, the President of the National Assembly hosted a weekly television series that would make scathing accusations against activists and civil society organizations as being traitors of the State. However, the State still maintains an obligation to assure that impartial investigations are carried out. As to date, the Honduran government has been criticized for mishandling the investigation including mistreating Mr. Castro during his detention, the lack of access Ms. Cáceres family has had during the investigation and the government’s refusal in allowing independent experts. As a result of the growing insecurity and shrinking space for defenders globally, a resolution calling for greater protection of defenders working on economic, social, and cultural rights (such as in the case of Ms. Cáceres) was adopted most recently in the 31st session of the Human Rights Council.
 See e.g., Int’l Law Comm’n, Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10, at 75 (2001).  Ivona Truscan, Reprisals against Human Rights Defenders who cooperate with the United Nations System in Geneva Academy of International Humanitarian Law and Human Rights, 19, 19 (August 2013).  Id.; See also Hina Jilani, Rep. of the Special Representative of the Secretary-General on Human Rights Defenders, UN General Assembly, UN doc. A/56/341, §§11-5 (Sept. 10, 2001).  Truscan supra note 2.  Id. at 20.  G.A. Res. 53/144, Declaration on the Right and Responsibility of Individuals, Art. 1 (Dec. 9, 1998).  Truscan supra note 2 at 34.  Criminalisation of Human Rights Defenders: Categorisation of the Problem and Measures in Response, Protection International (Dec. 2015), 23, http://protectioninternational.org/wp-content/uploads/2016/01/Criminalisation_Pl_English_WebReady.pdf.  Id.  See Jo Baker, Respect and Protect? Exploring the need for the United Nations Human Rights Council to strengthen its response to reprisals, ISHR Human Rights Monitor Quarterly (January 2012), available at http://www.ishr.ch/sites/default/files/article/files/paper-120828-reprisals-paper-jo-baker-and-ishr-joint-final.pdf.  Id.  Id.  Honduras: Environmentalist Berta Caceres shot dead, Al-Jazeera (March 3, 2016, 9:57 pm), http://www.aljazeera.com/news/2016/03/gunmen-murder-honduran-environmentalist-leader-160303181349473.html.  Nina Lakhani, Sole witness to Berta Caceres murder fears he might be framed, lawyer says, The Guardian (March 28, 2016, 9:00 am), http://www.theguardian.com/world/2016/mar/28/berta-caceres-murder-witness-honduras-appeals-to-mexico.  Id.  Id.  Jonathan Blitzer, The Death of Berta Caceres, The New Yorker (March 11, 2016), http://www.newyorker.com/news/news-desk/the-death-of-berta-caceres.  Elisabeth Malkin and Alberto Arce, Berta Caceres, Indigenous Activists, Is killed in Honduras, NY Times (March 3, 2016), http://www.nytimes.com/2016/03/04/world/americas/berta-caceres-indigenous-activist-is-killed-in-honduras.html?_r=0.  High time to pull the plug on televised reprisals against rights defenders in Venezuela, Office of the High Commissioner of Human Rights (July 22, 2015), http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16259&LangID=E#sthash.0Yc8tLt3.dpuf  Human Rights Council adopts historic resolution on protection of defenders of economic, social and cultural rights, International Service for Human Rights (March 24, 2016), http://www.ishr.ch/news/human-rights-council-adopts-historic-resolution-protection-defenders-economic-social-and.