Protecting Defenders and Combatting Criminalisation through Legal Support
Following on from the International Day of the Endangered Lawyer, we take a look at how the law is being used to restrict the work of human rights defenders, and what the international legal community can do to help
Criminalisation is one of a range of tactics used by repressive governments and aggressive businesses to obstruct the work of human rights defenders. It diverts energy and resources away from their human rights struggles and towards keeping themselves and their colleagues safe and out of jail. Defenders themselves – as well as their families, communities and legal teams – often face threats, harassment and smear campaigns in addition to the trumped-up charges against them.
Throughout Latin America, PBI supports defenders and communities who have been stigmatised and criminalised for their legitimate work defending human rights.
Indigenous communities in the Sierra Tarahumara of northern Mexico face enforced displacement and imprisonment in response to their opposition to illegal logging plus tourism and infrastructure projects that impact the local environment. CONTEC, an organisation which provides them with legal support, was targeted by smear campaigns and a strategically timed and exceptionally onerous audited after they filed a lawsuit against the State.
In Honduras, 32 environmental defenders were arbitrarily detained and 8 of them convicted of a number of crimes after denouncing contamination of local rivers by an open-pit mine, despite a complete lack of evidence against them. The UN classified their detention as arbitrary, and the EU called for the case to be thrown out. While the defenders were released from jail last year, on January 7 two of their colleagues in the struggle for environmental rights and against the destructive mining project – Aly Domínguez and Jairo Bonilla – were murdered. Before an investigation had even formally been opened, the police came out publicly to conclude the crime was the result of a bodged murder. The community and its legal team have faced harassment and smear campaigns.
Carlos Choc Chub, a community journalist in Guatemala had to go into hiding after a warrant was issued for his arrest. His crime? Photographing violence by State security forces against protesters denouncing the contamination of the largest freshwater lake in Guatemala by a ferronickel mine. Solway Investments, the parent company of the mine involved has since been sanctioned by the US government for corruption. In November, Carlos visited the UK and a number of other countries to generate international pressure to end the criminalisation he faces. Shortly after, his trial was postponed, but the case remains live.
Meanwhile in Colombia, anti-terrorism legislation is being used to prosecute protesters who joined the National Strike in 2021. Lawyers from the Nydia Erika Bautista Foundation (FNEB), who represent some of the detained activists – as well as victims of sexual violence and disappearances perpetrated during the protests – have faced increased risk and persistent surveillance. In May last year, FNEB Deputy Director Andrea Torres Bautista was kidnapped, physically assaulted and robbed of all her belongings while travelling home in a taxi with her husband. FNEB’s Director, Yanette Bautista Montañez, had her bank account drained and her house broken into in late 2021. No one has yet been arrested in connection with these crimes.
These and other cases are seen by local organisations as part of a broader trend toward the criminalisation of protest and environmental activism in Latin America and beyond. Land and environmental defenders, many of them from Indigenous communities, are on the front line of combatting the climate crisis. The Business and Human Rights Resource Centre has documented over 385 Strategic Lawsuits Against Public Participation (SLAPPs) since 2015; over half were initiated by business actors against those defending human rights and the environment. Supporting defenders to combat SLAPPs and criminalisation is vital so they can continue the fight for climate justice.
Even in cases where defenders have been released or their convictions overturned - as in the Guapinol case - ongoing legal processes may hang over their heads for months or years - imposing stress, anxiety and financial burdens on them and their families, as well as distracting from their broader human rights struggles.
The international legal community - a key ally in combating criminalisation
PBI works with the international legal community to combat criminalisation and minimise its impact on human rights defenders and their work. We connect defenders in some of the most dangerous countries in the world to legal support, advice, and technical assistance. Through this support, we have helped human rights defenders to defend themselves against trumped-up charges, to get released when they are detained, and to overturn unjust convictions.
Putting an end to criminalisation allows community leaders, human rights lawyers, investigative journalists and environmental activists to refocus on their vital human rights work - which often includes providing legal support to others and advocating for reforms to make the system fairer for everyone.
The international legal community can support human rights defenders facing criminalisation in a number of ways. These include:
Participating in international delegations and fact-finding missions to the countries and regions where criminalised HRDs work or are imprisoned. These delegations can document irregularities in the cases against defenders and within the broader legal context which is often used to obstruct their work.
Calling on governments to undertake necessary reforms to strengthen the rule of law (for example by ending pre-trial detention, ending impunity in cases of attacks on HRDs, and ensuring independence of the judiciary - among many other issues).
Meeting with or writing to government officials responsible for overseeing cases of criminalisation to discuss concerns and advocate for due process.
Observing the trials of criminalised defenders to draw local and international attention to their cases and put pressure on authorities to comply with national and international legal standards.
Writing amicus briefs and expert opinions to bolster the legal arguments made by the HRD’s defence team, draw attention to irregularities in their cases, and highlight the broader impact convictions may have on the national human rights environment.
Providing support and training to local lawyers and HRDs, especially in countries with similar legal systems to the UK. Past examples include training on how to document police abuses, training for legal observers during protests, training on the use of international human rights mechanisms, and training on legal strategies related to business and human rights.
Providing pro-bono support to legal organisations or directly to criminalised HRDs themselves to ensure they have a robust and properly resourced defence.
Helping to raise the profile of criminalised HRDs and the human rights lawyers who support them can mitigate threats or prevent the escalation of risk. This can be done by making positive public statements about their work; recognising HRDs with prizes or by inviting them to speak during high profile events or panels, as well as using contacts and leverage to provide access to decision-makers.
Providing personal or institutional funding to HRDs and to the organisations that support them, including PBI. An uptick in criminalisation has coincided with a decrease in funds available for this crucial work, meaning that financial support is needed now more than ever.
Lawyers can also pressure their own governments and political parties to strengthen support for human rights defenders. In the UK, this includes by ensuring the Government implements its 2019 commitments on supporting defenders, and encouraging all political parties to commit to passing a Business, Human Rights and Environment Act to make corporate due diligence mandatory in order to tackle some of the root causes of environmental degradation and human rights violations.
Are you a lawyer or law student who wants to support criminalised human rights defenders? Join PBI’s legal network to stay informed about what you can do to help.
