Report on the situation of human rights defenders in the Americas

REPORT ON THE SITUATION OF HUMAN RIGHTS DEFENDERS IN THE AMERICAS

I. INTRODUCTION

1. The human rights instruments enshrine rights that the States must respect and guarantee for all persons under their jurisdiction. The work of human rights defenders is fundamental for the universal implementation of those rights, and for the full existence of democracy and the rule of law. The tireless work of human rights defenders has been essential in the defense of rights under dictatorships, authoritarian governments, and during internal armed conflicts. Today, in a context marked by democratic governments, the work of human rights defenders continues to be essential for the process of strengthening democracies. For this reason, the day-to-day problems that human rights defenders face have been a matter of particular interest in the work of the Inter-American Commission on Human Rights (the “IACHR" or "the Commission").[1]

2. Since it was established, the Commission has followed the work of, supported, and expressed its recognition for those who, with their work, have helped create the conditions for the development of human rights. In large measure, thanks to human rights defenders today we have guarantees of protection for all inhabitants of the region, including the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.

3. Even today, in democratic societies, human rights defenders continue to be victims of extrajudicial executions and forced disappearances; assaults, threats, and harassment; smear campaigns, judicial actions; restriction of access to information in the hands of the state; abusive administrative and financial controls; and impunity in relation to those who perpetrate these violations.

4. The Commission considers that when efforts are made to silence and inhibit the work of human rights defenders, thousands are denied the opportunity to obtain justice for violations of their human rights. Such efforts place at great risk the work of protecting and promoting human rights, social oversight of the proper functioning of public institutions, accompaniment and judicial support for victims of human rights violations, among other tasks.

5. One of the most important mechanisms the inter-American system has to protect human rights defenders is that constituted by urgent actions, precautionary measures, and provisional measures. This report describes the effectiveness of their application in protecting the work of those persons engaged in the protection of the human rights of persons who live in this hemisphere.

6. In order to obtain the information needed for drafting the report, the Special Human Rights Defenders Unit of the Executive Secretariat, established in 2001, drew up two questionnaires to be sent to the member states and human rights organizations of the hemisphere.[2] The questions in the questionnaire to the states parties were divided into three issues: recognition of human rights organizations, protection of human rights defenders by the state, and acts that impede or encumber the work of the defenders and their organizations. In the questionnaire sent to the human rights organizations, questions were asked about their work and organization, acts of violence and attacks on individuals and organizations, relations with the state, and measures of protection granted by the organs of the inter-American system. The Commission would like to express its gratitude to the states and the organizations that sent their observations. The report also draws on the information obtained through the cases and precautionary measures that come before the system, the hearings before the Commission, the on-site visits, and regional and country consultations, from the creation of the Unit to the writing of this report.

7. The objective of this Report is to identify the patterns of violations of those who work in the defense of human rights in the region, and at the same time to highlight the special risk faced by some groups of defenders. A second objective is to reaffirm the legal framework of protection afforded by the inter-American system, which should be applied to the work of men and women engaged in the defense of human rights. The Commission points out that this report provides a preliminary overview of a variety of topics that will be examined in depth in more detailed thematic reports. Finally, through this report the Commission proposes to the states measures to legitimate, promote, and protect the work of human rights defenders.

II. THE HUMAN RIGHTS DEFENDERS UNIT

8. In its 1998 Annual Report, the Commission has highlighted the importance and the ethical dimension of the work carried out by those persons who are dedicated to promoting, monitoring, and providing legal defense for human rights and by the organizations with which many of them are affiliated. In that report the Commission recommended to the member states that they “take all necessary measures to protect the physical integrity of human rights defenders and to ensure they can work under appropriate conditions.”[3] When these recommendations were presented to the member states, the General Assembly adopted resolution 1671, entitled “Human Rights Defenders in the Americas, Support for the Individuals, Groups, and Organizations of Civil Society Working to Promote and Protect Human Rights in the Americas.” Through this resolution, the General Assembly entrusted the Permanent Council, in coordination with the Inter-American Commission, to continue studying the issues of human rights defenders in the Americas.”[4]

9. Following up on this resolution, in the context of its thirty-first session, the General Assembly asked the Commission “to consider preparing a comprehensive study in this area which, inter alia, describes their work, for study by the pertinent political authorities.”[5] In December 2001, mindful of this request, the Executive Secretariat decided to establish a Human Rights Defenders Unit[6], entrusted with coordinating the activities of the Executive Secretariat in this area, directly under the Executive Secretary. Special mention should be made of the contribution to the creation of this unit by Ms. Hina Jilani, the Special Representative of the United Nations Secretary-General on Human Rights Defenders.

10. Since its was established, the Unit has carried out the following tasks: receive and analyze the communications, complaints, urgent actions, and press information that human rights organizations send the Executive Secretariat; advise the Commission on individual petitions and requests for precautionary measures related to human rights defenders; promote hearings on the subject[7]; and publicize incidents that have a detrimental effect on the full enjoyment of their rights by human rights defenders in the region.

11. The Unit has made several visits to the countries to evaluate specific situations. As of December 2001, the Unit has provided support for the visits by the Commission to Colombia (December 2001), Argentina (August 2001), and Guatemala (July 2002, March 2003, and July 2005). In each instance, in the context of both working and on-site visits, the Unit has scheduled meetings with human rights defenders and with the authorities in charge of protecting these persons. As a result of those visits, the Unit has provided support for the preparation of several country reports in which a special chapter has been included about the situation of human rights defenders. This has been done in the recent reports on Colombia, Guatemala, and Venezuela.[8]

12. The Unit has engaged in permanent coordination with other international and regional organizations devoted to the issue of human rights defenders. On several occasions meetings have been held, both at its headquarters and in other countries, with the Special Representative of the United Nations Secretary General on the Situation of Human Rights Defenders, and with the Special Rapporteur of the African Commission.[9] Additionally, the Unit has participated in numerous meetings called by human rights organizations in which the issue of human rights defenders has been addressed.[10]

III. HUMAN RIGHTS DEFENDERS IN A DEMOCRATIC SOCIETY

A. Human rights defenders

13. The basic framework for analysis for determining who should be considered a human rights defender is found in 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 (hereinafter “the United Nations Declaration”). Article 1 of the United Nations Declaration provides: “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.” Therefore, every person who in any way promotes or seeks the realization of human rights and fundamental freedoms, nationally or internationally, must be considered a human rights defender.[11]

14. The United Nations High Commissioner for Human Rights, interpreting this provision, has noted certain tools that facilitate the task of identifying who can be considered a human rights defender.[12] The High Commissioner has suggested that the determination as to whether a person is a human rights defender is based on the actions of that person, and no other considerations, such as whether he or she is paid for such work. To be considered in this category, the person must protect or promote any right or rights of persons or groups of persons, which includes promoting and protecting any civil or political right, or economic, social, or cultural right.

15. The United Nations High Commissioner notes that human rights defenders undertake to further the realization of any of the rights, which includes addressing summary executions, forced disappearances, torture, arbitrary detentions, discrimination, labor rights, the right to housing and forced evictions, among others. In addition, human rights defenders may carry out their work in certain categories of rights or persons, such as protecting the rights of women, children, indigenous peoples, refugees and forcibly displaced persons.

16. In the manual on this topic, the High Commissioner indicates that there is not a closed list of activities that are considered action in the defense of human rights. These actions may entail investigating and compiling information to report human rights violations, lobbying the national and international authorities to ensure they learn of those reports or of a given situation, actions to ensure the responsibility of state authorities and eradicate impunity, actions to support democratic governance and to eradicate corruption, the contribution to implementing, on a national scale, the international standards established by human rights treaties, and education and training in human rights. Whatever the action, the important thing is that it be aimed at promoting the protection of any component of at least one human right, and that it not involve violent methods.

17. Accordingly, the General Assembly of the OAS has called on the member states to protect the individuals, groups, and organizations of civil society engaged in efforts to protect human rights and fundamental freedoms, and to effectively do away with human rights violations, nationally and/or regionally.[13] In addition, the General Assembly has called on the states to promote and enforce the United Nations Declaration on Defenders, as well as the provisions of the inter-American system and the decisions of its organs.

18. The Commission in this report and its subsequent work will use the broad concept of human rights defender found in the United Nations Declaration, and invites the member states to apply this standard in their domestic legislation and practices, as several states of the hemisphere do at this time.

19. The criterion that determines who should be considered a human rights defender is the activity itself. In this sense, those individuals working in State institutions whose functions relate to the promotion and protection of human rights and who, in the exercise of those duties, are victims of acts that directly or indirectly prevent or hamper their work, should receive the same protection as members of civil society who are working in the defense of human rights. This is the case insofar as such acts affect the enjoyment of human rights by society as a whole. Moreover, the Commission takes into account that, in general, public officials working in entities such as human rights offices, ombudsperson’s and procurator’s offices [defensorías, personerías, procuradurías], special human rights prosecutors offices, and the like, who are constantly working to verify the proper functioning of the State and the performance of the authorities in fulfilling their human rights obligations, are more vulnerable to falling victim to hostile acts.[14]

B. International protection of human rights defenders

20. The Inter-American Democratic Charter reaffirms that democracy is essential for the social, political, and economic development of the peoples of the Americas[15], where respect for human rights is essential to their existence.[16] In addition, the Democratic Charter highlights the importance of the permanent, ethical, and responsible participation of the citizenry in a framework of legality in keeping with the respective constitutional order for the development of democracy.[17] Human rights defenders, from different sectors of civil society, and, in some cases, from state institutions, make fundamental contributions to the existence and strengthening of democratic societies. Accordingly, respect for human rights in a democratic state largely depends on the human rights defenders enjoying effective and adequate guarantees for freely carrying out their activities.

21. For more than ten years, the General Assembly of the OAS has made several statements about the importance it attributes to respect for and protection of human rights defenders, and it has shown the OAS’s profound concern over the situation of the defenders and their organizations. On June 8, 1990, by resolution AG/RES. 1044, approved June 8, 1990, the General Assembly reiterated "the recommendation made in prior years to the governments of the member states that they grant the necessary guarantees and facilities to enable nongovernmental human rights organizations to continue contributing to the promotion and protection of human rights, and that they respect the freedom and safety of the members of such organizations."

22. For more than five years, during its regular sessions the General Assembly has taken up a specific agenda item on the situation of human rights defenders, called on the states to provide them special protection, and has reiterated that the obligation to promote and protect human rights is first and foremost an obligation of the states. For example, in resolution AG/RES. 1920 of June 10, 2003, it acknowledged the important work, nationally and regionally, of human rights defenders, and their valuable contribution to the protection and promotion of fundamental rights and liberties in the hemisphere. Similarly, in its resolution AG/RES 2036 (XXXIV-O/04), the Assembly emphasized that “the performance by human rights defenders of their tasks contributes actively to strengthening democratic institutions and improving national human rights systems.” Accordingly, the Assembly reiterated its recommendation to the governments of the member states “to continue stepping up their efforts to adopt the necessary measures to safeguard the lives, freedom, and personal safety of human rights defenders, and to conduct thorough and impartial investigations in all cases of violations against human rights defenders, ensuring that the findings thereof are transparent and publicized.”[18]. In addition, the Assembly has issued an appeal to the states to “promote the dissemination and enforcement of the instruments of the inter-American system and the decisions of its bodies on this matter, as well as 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.” In its most recent resolution, adopted June 7, 2005, the General Assembly acknowledged, in particular, “in view of their specific role and needs, women human rights defenders should be accorded special attention to ensure that they are fully protected and effective in carrying out their important activities.”[19]

23. The human rights organs of the inter-American system, for their part, have repeatedly highlighted the importance of the work of those persons who, individually or collectively, promote and seek the protection and attainment of human rights and fundamental, as well as the oversight of democratic institutions.[20] The Commission has stated that human rights defenders play a leading role in the process of pursuing the full attainment of the rule of law and the strengthening of democracy.[21] The IACHR has indicated that the work of human rights defenders, protecting individuals and groups of individuals who are victims of human rights violations, publicly denouncing the injustices that affect large sectors of society, and pointing to the need for citizen oversight of public officials and democratic institutions, among other activities, means they play an irreplaceable role in building a solid and lasting democratic society.

24. The Inter-American Court has also emphasized the importance of the work of human rights defenders, when it indicated, for example, that “respect for human rights in a democratic state depend largely on human rights defenders enjoying effective and adequate guarantees so as to freely go about their activities, and it is advisable to pay special attention to those actions that limit or hinder the work of human rights defenders.”[22]

25. The work of human rights defenders has also been recognized by several international organizations. As indicated previously, the United Nations Commission on Human Rights highlighted the importance of human rights defenders in the United Nations Declaration on Defenders.[23] This document provides: “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels."[24] For the purposes of fostering and protecting human rights, all persons have the right to peaceful assembly and to form non-governmental organizations and join them or participate in their work, and to communicate with such organizations.[25]It also provides that all persons have the right to lodge complaints in relation to the policies and actions of government officers or organs related to human rights.[26]

26. The Secretary General of the United Nations has said: "Human rights defenders are at the core of the human rights movement the world over. They work at democratic transformation in order to increase the participation of people in the decision-making that shapes their lives. Human rights defenders contribute to the improvement of social, political and economical conditions, the reduction of social and political tensions, the building-up of a peaceful environment, domestically and internationally, and the nurturing of national and international awareness of human rights. They form the base that regional and international human rights organizations and mechanisms, including those within the United Nations, build upon in the promotion and protection of human rights."[27]

27. In August 2000, the Secretary General of the United Nations, at the request of the Economic and Social Council, designated Ms. Hina Jilani, of Pakistani nationality, as United Nations Special Representative for Human Rights Defenders. The mandate of the Special Representative is to report on the situation of human rights defenders in all parts of the world, and on possible means for enhancing their protection.

28. In 2004, the Council of the European Union established the European Union Guidelines on Human Rights Defenders, which recognize that the fundamental responsibility for promoting and protecting human rights corresponds to the states, and supports the role played by human rights defenders in supporting the States in that area. In addition, the EU Council recognizes the fundamental role of defenders in their contribution to the states, in getting the states to adopt appropriate legislation, and to back the establishment of national human rights plans and strategies.[28] The guidelines provide practical suggestions for improving the action of the European Union and support and strengthen respect for the right to defend human rights. They also provide for action by the EU on behalf of human rights defenders. With a view to promoting these guidelines, the European Union entrusted Mr. Michael Matthiessen, Personal Representative on Human Rights of the Secretary General of the Council of the European Union, to direct actions this area.

29. The African Commission on Human and Peoples’ Rights, during its thirty-fourth session in Banjul, Gambia, created a Rapporteurship for the protection of human rights defenders, under Commissioner Jainaba Johm.[29]

IV. LEGAL FRAMEWORK FOR THE PROTECTION OF HUMAN RIGHTS

DEFENDERS IN THE INTER-AMERICAN SYSTEM

30. International human rights law is based on the principle that the states have the primary responsibility to promote and protect the human rights and fundamental freedoms of all persons subject to their jurisdiction. Accordingly, the work of human rights promotion and protection carried out by persons under their jurisdiction at their own initiative is a legitimate activity that contributes to the fulfillment of an essential obligation of the states, and, therefore, gives rise to special obligations of the states to ensure the protection of those who are engaged in the promotion and protection of such rights. In a democratic society human rights activities should not only be protected, but encouraged.

31. The public authorities are under an obligation to adopt the measures needed to create the conditions that make it possible for persons who so wish to freely exercise activities aimed at promoting and protecting internationally recognized human rights. This state obligation requires that states guarantee that they will not obstruct, in any guise, the work carried out by human rights defenders. The state must provide the utmost collaboration to the initiatives of society to promote and protect human rights, including those aimed at monitoring the conduct of public affairs at every level. In addition, the states bear the responsibility of protecting the defenders from third persons who seek to impede their work.

32. The Commission finds that the promotion and protection of human rights involves three important dimensions that should be protected by the states. The first dimension is individual and is developed through the exercise of universally recognized human rights that are realized in each of the persons who have committed their lives to the defense of human rights. States must guarantee that human rights defenders, like all individuals under their jurisdiction, not suffer violations of their rights nor the unlawful curtailment of their fundamental freedoms.

33. The second dimension is collective. The defense of human rights is a matter of public interest, and generally includes the participation of various persons associated with one another. Several of the rights crucial for this defense of rights to be translated into practice have a collective aspect to them, such as the right to association, the right to assemble, or some dimensions of the freedom of expression. Accordingly, the states have the obligation to guarantee the collective dimension of those rights.

34. The third dimension is social. This dimension refers to the intention of human rights protection and protection initiatives to seek positive changes in the attainment of the rights for society in general. The purpose that motivates the work of human rights defenders involves society in general, and seeks to benefit society; accordingly, when a person is kept from defending human rights, the rest of society is directly affected.

35. The inter-American provisions have not established a single right that guarantees the work of promoting and protecting human rights. To the contrary, the inter-American system has established components of many rights whose guarantee makes possible the work of human rights defenders. Based on these provisions, society has the right and the duty to seek, by different means, to promote and realize their rights both domestically and internationally. Any person, individually or collectively, has the right to pursue peaceful activities that make it possible to attain those objectives, whether directly geared to the public authorities, or to society in general or in groups.

36. The observance of human rights is a matter of universal concern, accordingly, the right to defend those rights may not be subject to geographical restrictions. The states must guarantee that the persons under their jurisdictions may exercise this right domestically and internationally. In addition, the state must guarantee that persons are able to promote and protect any or all human rights, including both those whose acceptance is unquestioned, and new rights or components of rights whose formulation is still a matter of debate.

37. The Commission has indicated that the defense of human rights and the strengthening of democracy require, among other things, that the citizens have broad knowledge of the work of the various organs of the state, such as budgetary aspects, the extent of attainment of the objectives proposed and the plans and policies of the state to improve society’s living conditions.[30] Along the same lines, the United Nations Declaration on Defenders establishes the right of individuals and groups to “know, seek, obtain, receive, hold, study, publish, and discuss” any information on the means by which effect is given to human rights in the internal legislative, judicial, and administrative systems of the states.[31] As a component of these rights, the Declaration establishes the right to participate in public hearings, procedures, and public trials to form an opinion regarding the implementation of both domestic legal provisions and international obligations.[32] The United Nations Declaration on Defenders also highlights the right to participate in the conduct of domestic public affairs of the countries to seek the promotion and attainment of human rights. The defense of human rights involves the ability to make criticisms and proposals to improve the functioning of the state and to seek to call attention to any obstacle or impediment to the promotion and attainment of any human rights.[33]

38. As a corollary, those persons individually or collectively have the right to protest the rules, policies, and practices of public officials and private actors who violate human rights. To this end, the states must guarantee systems of petition or other adequate means vis-à-vis the judicial, administrative, or legislative authorities at all levels of decision-making, capable of adequately processing these petitions in keeping with minimum due process standards. In addition, those persons have the right to seek the effective protection of domestic and international provisions to protect human rights and oppose any type of activity or action that causes human rights violations.[34] This right involves the possibility of going before international organs that protect human rights and monitor international treaties, without any type of obstacle or reprisal.

39. In addition, individuals and groups have the right to promote the protection and attainment of human rights through actions geared to society. As one component of this principle, persons have the right to publish, make known, and disseminate publicly to third persons their opinions and knowledge with respect to human rights, and to debate and develop new principles and ideas in this respect, and promote their acceptance. Accordingly, human rights defenders have the right to verify by themselves the existence of abuses, to meet with victims, witnesses, and experts (such as lawyers or forensic physicians), to speak with the authorities, study documentation, and carry out any type of investigation for the purpose of obtaining objective information. Similarly, individuals and groups have the right to offer and provide professional legal counsel or other advice and assistance relevant to the defense of the human rights and fundamental freedoms of third persons.[35] In addition, this right includes the possibility of engaging in activities of representation, accompaniment, self-management, and search for recognition of communities and individuals who have been victims of human rights violations and other acts of discrimination and exclusion.

40. In order to carry out these activities, human rights defenders have the right to seek and obtain economic resources to finance their work. The states must guarantee the exercise of this right in the broadest possible manner, and promote it, for example, through tax exemptions to organizations dedicated to protecting human rights. Fundraising activities to finance the work of human rights defenders, such as the production and sale of books, reports, and newspapers on human rights, collecting professional fees, donations, and receiving legacies from individuals and organizations, and the contributions of foreign governmental and non-governmental organizations, among others, should be considered legitimate.

41. The inter-American norms for the protection of human rights constitute a minimum framework of protection that should be guaranteed by the states for all persons under their jurisdiction, and whose attainment is essential for protecting the activities described above. Only when human rights defenders have appropriate protection for their rights can they seek to protect the rights of others.[36] Hence, the case-law of the Commission and the Court has been establishing the parameters for protection and guarantee necessary for freely developing the promotion and defense of human rights in a democratic society. Next, the Commission will briefly outline those components of the rights recognized by the norms of the inter-American system that are a vehicle for developing the activities of human rights defenders, in its various dimensions: individual, social and collective.

A. Right to life, humane treatment, and personal liberty

1. Right to life[37]

42. The states of the hemisphere have recognized the right to life as a fundamental and basic right for the exercise of any other right, including the right to defend human rights. At the same time, the Court and the Commission, in consistent case-law, have recognized that the rights to life and physical integrity constitute essential minimums for the exercise of any activity.[38]

43. The Commission notes that the special impact of attacks on the right to life of human rights defenders lies in their effect beyond the direct victims. Accordingly, the Inter-American Court of Human Rights has established through its case-law that violations of the right to life – be they forced disappearances or extrajudicial executions – directed against human rights defenders, have a chilling effect that reaches all other human rights defenders, directly diminishing their possibilities of exercising their right to defend human rights.[39] As a result, the Court has highlighted the special obligation of states to ensure that persons can freely exercise their activities of promoting and protecting human rights without fear that they will be subject to any violence, and has indicated that when that protection is lacking, the ability of groups to organize to protect their interests is diminished.[40]

44. The Commission has noted that a systematic and reiterated practice of attacks on the life, physical integrity, and liberty of the members of a human rights organization entails a violation of the freedom of association.[41] In addition, the United Nations Special Representative has reaffirmed that assassinations, disappearances, and attacks not only constitute a violation of the right to life protected by international human rights law, but also constitute an attack on the promotion and dissemination of human rights generally, for they inhibits human rights defenders from exercising their important role in maintaining peace and security worldwide and restoring them they have been violated.[42]

45. Under the norms of the inter-American system, the general clause of protecting the individual from the arbitrary deprivation of life, which entails an absolute prohibition on arbitrary executions and forced disappearances, interpreted in keeping with the obligation to respect and ensure human rights, gives rise to both negative and positive obligations incumbent on the states.[43] That generic obligation translates, in the case of human rights defenders, among other obligations, into the need to do away with environments incompatible with or dangerous for the protection of human rights. It is essential that the states, pursuant to their obligations to prevent and protect the right to life, offer adequate protection to human rights defenders, bring about the conditions for eradicating violations by state agents or private persons, and investigate and sanction the violations of that right.[44] In that regard, the Commission reiterates that an important aspect of the state’s duty to prevent violations of the right to life is investigating immediately, exhaustively, seriously, and impartially where the threats come from, and punishing, as the case may be, those responsible, with the aim of trying to prevent the threats from being carried out.[45]

2. Right to humane treatment[46]

46. The defense of human rights can be exercised freely only when the persons engaged in it are not victims of threats or of any type of physical, psychological, or moral aggression, or other forms of harassment.[47] Carrying out violent acts for the purpose of diminishing the physical and mental capacity of the defenders, or the threats of having such suffering inflicted on them, constitute violations of the right to personal integrity and could constitute indirect violations of other rights protected by inter-American instruments. Depending on the circumstances in which those attacks or threats occur, they could be considered as torture[48] or cruel, inhuman, or degrading treatment.[49]

47. In keeping with the obligation to respect and ensure the right to humane treatment, the states must adopt special measures of protection for human rights defenders from the acts of violence that are regularly perpetrated against them. The state’s obligation is not limited to providing material measures to protect life and personal integrity, but entails the obligation to act to address the structural causes that have a detrimental impact on the security of the persons threatened. This obligation includes investigating and punishing the persons responsible for harassment, threats, and attacks against human rights defenders. The Commission considers that in contexts of aggression and systematic acts of harassment an efficient and effective investigation is essential to ensure that the risk these persons run is identified and eradicated.

3. Personal liberty[50]

48. The exercise of personal liberty and its full guarantee that it will not be restricted by unlawful action is a basic need for the full exercise of human rights defense. A person whose liberty is unlawfully restricted or who lives in fear of being subject to imprisonment or being held against his will because of his actions to defend the rights of other persons is directly limited in his ability to do his work.

49. The Commission recalls the case-law of the Inter-American Court, which has established that detentions by state agents should meet two kinds of requirements in order to meet the standards of the American Convention.[51] First, no one should be deprived of his or her personal liberty other than for causes expressly spelled out in the law (substantive aspect), but also, strictly subject to the procedures objectively defined by the law (procedural aspect). Under these principles, a human rights defender, like any other person, may only be detained when there are well-founded reasons for considering the grounds described in the domestic laws to be present, strictly subject to the procedural formalities which, according to law, must be followed by the judicial and police authorities. Second, the states must guarantee that no human rights defender will be subjected to detention or imprisonment by causes and methods which, even if considered legal, may be incompatible with respect for the fundamental rights of the person for being, among other things, unreasonable, unforeseeable, or lacking proportionality.[52] The Commission considers that a detention based exclusively on the activity of human rights defense does not meet the requirements of reasonability and proportionality established by international standards.

B. Right to assembly and freedom of association

50. The Commission has indicated that the right of assembly and freedom of association have been widely recognized as substantive civil rights that offer protection from the arbitrary interference of the state when persons decide to associate with others, and that are fundamental for the existence and functioning of a democratic society.[53] In that regard, the protection of those rights entails not only the obligation of the state not to interfere with the exercise of the right of assembly or association, but also requires, in certain circumstances, positive measures by the state to ensure the effective exercise of liberty, for example, by protecting the participants in a demonstration from the physical violence of those who might hold contrary views.[54]

51. These rights are fundamental for the defense of human rights, since they protect the means by which the grievances of both human rights defenders are expressed. Accordingly, restrictions on the exercise of these rights are serious obstacles to the people’s ability to vindicate their rights, make known their petitions, and foster the search for changes or solutions to the problems that affect them.

1. Right of assembly[55]

52. Through the exercise of freedom of assembly, individuals have the right to share opinions, express their positions on human rights, and coordinate action plans, whether at assemblies or public demonstrations. The defense of human rights, as a legitimate issue that concerns all people and seeks the participation of society as a whole and the response of the government authorities, finds in the exercise of this right a fundamental channel for its activities. Similarly, this right is essential for the expression of political and social criticism of the activities of the authorities. For these reasons, it is difficult to exercise the defense of human rights in contexts where restrictions are placed on the right to peaceful assembly. Moreover, the exercise of the right to assembly is essential for the exercise of other rights such as freedom of expression and the right to association.

53. The exercise of this right means that human rights defenders may freely meet in private locations with the consent of the owners, in public places—in accordance with the applicable regulations—and in places of business, in the case of workers.[56] Human rights defenders have the right to participate in the preparation and direction of a meeting or demonstration, as well as in the event itself.[57]

54. The state’s obligations to protect and ensure the right to assembly include actions that, if not anticipated, impede the work of defending human rights. Hence, states have the obligation to ensure that no human rights defender is prevented from meeting or publicly expressing him or herself, which means that the state authorities must abstain from preventing the exercise of this right and must also take measures to ensure that others do not prevent it. States also must take the administrative and law enforcement steps necessary to enable defenders to carry out their activities, which includes positive steps such as detouring traffic and providing police protection for demonstrations and rallies, where necessary.[58]

55. Article 15 of the American Convention protects the right to peaceful assembly without arms, and stipulates that no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, or to protect public health or morals or the rights or freedom of others.[59] Inherent to the sharing of ideas and social demands as a form of expression is the exercise of related rights, such as the right of citizens to assemble and demonstrate and the right to the free flow of ideas and information. Both of the rights set forth in Articles 13 and 15 of the American Convention are vital elements for the proper functioning of a democratic system that includes all sectors of society.

56. In the Commission’s view, states may regulate the use of public space, for example by establishing requirements of prior notice, but such regulations may not impose excessive demands that invalidate the exercise of the right. The Commission shares the opinion expressed by the Spanish Constitutional Court in the sense that “in a democratic society, the urban space is not only an area not only for circulation, but also a space for participation.”[60] Hence, the Commission has found disproportionately restrictive a law requiring a police permit that must be requested ten days in advance of any public act, assembly, election, conference, parade, congress, or sports, cultural, artistic or family event.[61] Moreover, the Commission has stated that the arrest of participants at peaceful demonstrations violates freedom of assembly.[62]

57. The purpose of regulating the right to assembly cannot be to create the basis for prohibiting the meeting or the demonstration. To the contrary, regulations establishing, for example, advance notice, exist for the purpose of informing the authorities so that they can take measures to facilitate the exercise of the right without significantly disturbing the normal activities of the rest of the community.

58. The United Nations Human Rights Committee has stated its opinion in this regard when it asserted that the requirement to notify the police prior to a demonstration is not incompatible with Article 21 of the ICCPR (right of assembly).[63] Nonetheless, the requirement of previous notification should not be transformed into a demand for the prior issuance of a permit by an agent with unlimited discretionary powers. That is to say that a demonstration may not be prevented because it is considered likely to jeopardize the peace or public security or order, without taking into account whether it is possible to prevent the threat to peace or the risk of disorder by altering the original conditions of the demonstration (time, place, etc). Restrictions on public demonstrations must be intended exclusively to prevent serious and imminent danger, and a future, generic danger would be insufficient.[64]

59. With respect to the right to assembly, the Commission considers that special mention should be made of familiar forms of social protest in some countries, such as street closures, pot-banging sessions, vigils, and so forth, in which many people come together to appeal to government officials and to demand direct state intervention with respect to a particular social problem. The conditions in which many of these demonstrations and demands occur are complex and require appropriate responses from the authorities in terms of respecting and ensuring human rights.

60. The Commission underscores that political and social participation through public demonstration is critical to the consolidation of democratic life in societies. Such participation, as an exercise of freedom of expression and freedom of assembly, contains a keen social interest, which leaves the state very narrow margins for justifying restrictions on this right.[65] Therefore, the purpose of regulating the right to assembly cannot be to create a basis for prohibiting the meeting or demonstration. The right to assemble or demonstrate cannot be considered synonymous with public disorder for the purpose of restricting it per se.

61. In this regard, the Commission reiterates the opinion of its Office of the Special Rapporteur for Freedom of Expression which, in its 2002 Report, stated that

the per se criminalization of public demonstrations is, in principle, inadmissible, provided they take place in accordance with the right of free expression and the right of assembly. In other words, the question is whether the application of criminal sanctions is justified under the Inter-American Court’s stance whereby such a restriction (i.e. criminalization) must be shown to satisfy an imperative public interest that is necessary for the functioning of a democratic society. Another question is whether the imposition of criminal sanctions is the least harmful way of restricting the freedom of expression and right of assembly exercised through a demonstration in the streets or other public space. It should be recalled that in such cases, criminalization could have an intimidating effect on this form of participatory expression among those sectors of society that lack access to other channels of complaint or petition, such as the traditional press or the right of petition within the state body from with the object of the claim arose. Curtailing free speech by imprisoning those who make use of this means of expression would have a dissuading effect on those sectors of society that express their points of view or criticism of the authorities as a way of influencing the processes whereby state decisions and policies that directly affect them are made. [66]

62. In this sense, the Commission reiterates the pressing need that States, when imposing restrictions on this form of expression, conduct a rigorous analysis of the interests it intends to protect by way of the restriction, taking into account the high level of protection merited by the right to assembly and the freedom of expression as rights that give form to citizen participation and to the oversight of State actions in public matters.

63. Finally, in the Commission’s view, agents may impose reasonable restraints on demonstrators to ensure that they are peaceful or to contain those who are violent, as well as to disperse demonstrations that become violent and obstructive.[67] However, the actions of the security forces should protect, rather than discourage, the right to assembly and therefore, the rationale for dispersing the demonstration must be the duty to protect people. The law enforcement officer deployed in such contexts must contemplate the safest and quickest methods of dispersal that cause the least harm to the demonstrators.

64. The use of force is a last resort that, qualitatively and quantitatively limited, is intended to prevent a more serious occurrence than that caused by the state’s reaction. Law enforcement officials may not, under any circumstances, resort to illegal practices to obtain the objectives entrusted to them. The Commission has stated categorically that the means that the state may employ to protect its security or that of its citizens are not unlimited.[68] As the Inter-American Court has pointed out, [...] regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends.”[69]

65. The legitimate use of public force entails, among other factors, that it is both necessary and proportional to the situation; that is to say that it must be exercised with moderation and in proportion to the legitimate objective being pursued while simultaneously trying to reduce to a minimum personal injury and the loss of human life.[70] The degree of force exercised by state agents, to be considered within international parameters, must not exceed what is “absolutely necessary.”[71] The state must not use force disproportionately and immoderately against individuals who, because they are under its control, do not represent a threat; in such cases, the use of force is disproportional.

66. According to the international standards that have been developed concerning the use of force by law enforcement officials in the discharge of their duties, such action must be necessary and proportional to the needs of the situation and to the objective sought.[72] In this regard, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate that “law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms.” Likewise, the United Nations Code of Conduct for Law Enforcement Officials states explicitly that "the use of firearms is considered an extreme measure,"[73] while article 9 of the Basic Principles points out that firearms must not be used against people, except when there is an imminent danger to life.[74] Basic Principles 12, 13, and 14, refer specifically to the regulation of the use of force in legal gatherings.[75]

67. The Inter-American Court has recommended the implementation of clear procedures and protocols for prevention and for the conduct of the security forces with respect to incidents that threaten public order.[76] In this regard, it has recommended the adoption of

all necessary provisions to this end, and specifically those for the education and training of all members of its armed forces and its security agencies on principles and provisions of human rights protection and regarding the limits to which the use of weapons by law enforcement officials is subject, even in a state of emergency. The pretext of maintenance of public security cannot be invoked to violate the right to life. The Stat must also adjust operational plans regarding public disturbances to the requirements of respect and protection of those rights, adopting to this end, among other measures those geared toward control of actions by all members of the security forces in every field of action to avoid excesses […] the State must ensure that, if it is necessary to resort to physical means to face situations of disturbance of public order, members of its armed forces and its security bodies will use only those means that are indispensable to control such situations in a rational and proportional manner, and respecting the rights to life and to humane treatment.[77]

68. Based on these norms and principles, the Commission deems that states should establish administrative controls to ensure only exceptional use of force in public demonstrations, in cases where it is necessary, through measures for planning, prevention, and for the investigation of cases in which an abuse of force may have occurred. In particular, the Commission recommends measures such as the following: a) implementation of mechanisms to prohibit, in an effective manner, the use of lethal force as a recourse in public demonstrations; b) implementation of an ammunition registration and control system; c) implementation of a communications records system to monitor operational orders, those responsible for them, and those carrying them out; d) promotion of visible means of personal identification for police agents participating in public law enforcement operations; e) promotion of opportunities for communication and dialogue prior to demonstrations and of the activities of liaison officers to coordinate with demonstrators concerning demonstration and protest activities and law enforcement operations, in order to avoid conflict situations; f) the identification of political officials responsible for law enforcement operations during marches, particularly in the case of scheduled marches or prolonged social conflicts or circumstances in which potential risks to the rights of the demonstrators or others are anticipated, so that such officials are tasked with supervising the field operation and ensuring strict compliance with norms governing the use of force and police conduct; g) the establishment of an administrative sanctions regime for the law enforcement personnel involving independent investigators and the participation of victims of abuses or acts of violence; h) the adoption of measures to ensure that police or judicial officials (judges or prosecutors) directly involved in operations are not responsible for investigating irregularities or abuses committed during the course of those operations.

2. Freedom of association[78]

69. The United Nations Declaration on Defenders reaffirms that in order to promote human rights and fundamental freedoms, all persons have the right to “form, join and participate in non-governmental organizations, associations or groups.”[79] The freedom of association, in the specific case of human rights defenders, is a fundamental tool that makes it possible to fully carry out the work of human rights defenders, who, acting collectively, can achieve a greater impact. Because of this, when a state impedes this right, it not only restricts the freedom of association, but also obstructs the work of promoting and defending human rights.

70. The right of association should be understood not only as the right of human rights defenders to form an organization, but also the right to implement their in