Thank you to all the Conversation Leaders for their time and commitment to taking part in this important conversation. Please take a moment to learn about the conversation leaders by clicking on their profile photos. Thank you!
Below is a list of questions to serve as a framework for the discussion in this thread:
- Should civil society play a role in providing protection, and if so, what should that role be?
- What are some possible forms of protection that can be provided by civil society organizations?
By way of introduction, I plan to comment, primarily, about experience gained in Afghanistan where I have worked on different occasions and in different political/governance contexts. I should also explain that I have worked both on Humanitarian/protection and Human Rights programming issues in that country.
Much of my experience is drawn from crisis (armed conflict or post-ceasefire) settings where the governance apparatus, including rule of law institutions, are contested, dysfunctional, or discredited. In Afghanistan, a multi-ethnic society, traditional dispute-resolution mechanisms enjoy greater use and credibility than formal, government systems that are widely seen to be corrupt and prone to abuse by those with power and leverage.
I should also explain that there was no history or tradition of civil society in Afghanistan in 1998 when I first went to work in the country then largely controlled by the Taliban regime; armed opponents, the Northern Alliance, controlled a small area in the north-east of the country. There was one small HR NGO focused on the concerns of the Hazara community in the Central Highlands, an area that is poor and remote being snowbound for a large period of the year. There were also a small number of Afghan NGOs, that had been established with the help of the UN, in relation to landmines. However, it is worth noting that Afghan society has a long and worth tradition of shura or consultation processes at the local and national level; for the most part these do not involve women.
Fast-forward to post 9/11 Afghanistan and the Bonn Agreement (Dec 2001) that established a road-map for nation-building which led to a mushrooming of gender-equity and a wide range of human rights groups, the majority of which were dependent on external funding. Over time, such groups are often seen or portrayed as Western tools antagonistic to traditional Afghan cultural values. Concerns have also been raised that such groups are project-focussed, dependent on donor political support, and have not invested in mobilizing grass-roots support.
The first observation I wish to make is that “providing protection” is a big ask of non-state actors. In my experience, civil society works to enhance protection by leveraging all available opportunities while tackling or circumventing political, security, legal and other obstacles.
My second observation is that issues pertinent to the safety of HR defenders, witnesses and individual citizen action, are greatly affected by the space available for human rights work in any given society or community. In sum, in some locations in Afghanistan, it is much more difficult to advance discourse and transformative action on discrimination against women and girls than initiate and build networks to counter the direct impact of war on civilians.
While it is possible for civil society to play a role in providing protection to victims and witnesses of torture, it is important to underline that under Article 13 of the UN Convention Against Torture (UNCAT), States parties have an obligation to ensure that victims and witnesses are protected against "all ill-treatment and intimidation as a consequence of his complaint or any evidence given." It is therefore important not to undermine this obligation by calling on civil society organisations to provide protective measures to victims and witnesses. However, it should also be noted that in many cases, a victim of torture will be highly wary of State-provided victim and witness protection measures, given that this requires him or her to trust the same State that is responsible for violating his rights to be the one providing him or her with protection. It is for this reason that the traditional model of victim and witness protection may not always be appropriate in cases of torture (and indeed other human rights violations perpetrated by agents of the State), and why in some situations, civil society can have a role to play in ensuring protection. Brazil and South Africa are both examples of victim and witness protection systems in which NGOs have played a foundational role. The UN Committee Against Torture has recognised this kind of model in the context of rehabilitation. The Committee's General Comment No. 3 on Article 14 of the Convention Against Torture states that while States have the obligation to ensure victims obtain rehabilitation, it is also important to recognise that in some cases, victims will be very wary of accessing rehabilitation through a State-run facility. For this reason, the General Comment clarifies that as this is a State obligation, the State should fund NGOs to provide rehabilitation. This same model could be adopted for victim and witness protection measures or mechanisms being carried out by civil society groups.
Jo-Anne's comment is absolutely central as it points to the ultimate responsibility of the state to protect victims and witnesses. The question is of course how we best ensure that and maybe civil society may play a constructive role in here. As I wrote in another comment under 'examples' in this conversation, there is often extreme forms of antagonism between state and residents and/or fear of the state that prevent the reporting which must be a first step twoards the state assuming responsibility. Here I think that civil society may be of use - and here I am not talking about human rights organizations but all locally based organizations (churches, political parties, etc.) who might act as a mediator between residents and the state - as a means of protection, accountability and rehabilitation. To 'insert' a group of 'mediators' might be one of the ways that we can address the lack of reporting. If we can build systems and even get the4 state to pick up the tap as Jo-Anne suggests, it would be great.
There are probably many ways of doing this. In work both in the Philippines and in South Africa, our partners have been working with what they call response teams that are alerted when police pick up suspects and who then go to the police station. Victim associations in Bangladesh fulfills similar roles. They just have to have local grounding.What protects suspects as well as the local action groups are the relations they have to the outside world. Human rights organizations can assist local groupings - even if they are not primarily human rights organizations - by facilitating links and connections beyond the 'here-and-now' encounter.
UN-CAT ART.13 FoK is still missing in Germany. No Protection for Victims.! No Rights for Rehabilition and Reparation. No Access to Justice. The german judgement is OUT OF CONTROL . They lost the interest in Human Rights ! How can a New Tactic in Human Rights stop this gruel-action against their own citizen in Germany ? We have more then 50.000 Victims of judge each year. UN-CAT Art.13 FoK and UN-Istanbul-Protocol are two steps to stop this , but they are still out of function ! No documention of torture---NOTHING ! How and who can give Protection to the Victims ?
I agree with Joanne's point. It is the responsibility of the state to afford protection. This is important, we would not want to somehow encourage the State to cede this responsibility to civil society, with civil society then carrying the main burden of this work, without the necessary resources or without it being their role. But at the same time, there will be instances when victims wont be willing to submit themselves to state protection systems (this is particularly the case in torture and other human rights cases, where the police or other public officials are alleged to have been responsible for the crimes and at the same time are the ones with the obligation and mandate to protect). So we can see that victims will be reluctant, and they should not be forced to submit themselves to processes which undermine their dignity and safety. From the advocacy perspective, there are perhaps 2 aspects:
1. we should be encouraging states to strengthen their victim and witness protection schemes - to make them more flexible, and more independent from the police, so that victims who bring claims against the police will feel safe/secure to use them. There are some countries that are starting to do this. It would be great for UN treaty bodies and others to become more precise in their recommendations to states about how this could be done.
2. We should recognise that in many countries, victims and witnesses will be approaching NGOs to help with their security (even though it is not NGOs jobs). This will happen because of the lack of trust in state institutions in some countries. So, we should ensure that NGOs are knowledgeable about good protection practices, and are not inadvertently undermining victims and witnesses security
I agree with everything that has been said above, especially the points about it being the responsibility of states to provide protection, and that protection is a big ask for civil society groups. As Carla and Steffen point out, in practice survivors though will often approach civil society organisations for help. And often these will not be what we traditionally think of as human rights organisations. Some research we have been doing at Edinburgh with Dignity, Social Science Baha (Nepal), the University of Dhaka, and IMLU in Kenya, seems to show that human rights groups are often relatively far down the list of organisations trusted by survivors, especially among the poor. Instead, they are more likely to turn to churches, mosques, youth groups, savings clubs etc. Whilst recognising that these organisations may often have goals that sit awkwardly with human rights, there maybe space here for human rights organisations to work in partnership.
Toby's point raises broader questions about the nature of human rights organisations and to what extent, by virtue of their location, composition, mode of doing work, they understand the specific protection issues and have contacts in the wider community. This probably requires developing a more sociological/psychological understanding of the context from the perspective of a victim in the particular setting and self-awareness on the limitations of what a human rights organisation can/can't do. There is a growing consensus that anyone working with victims has a responsibility of 'do no harm' so when it comes to translating this into practice, there is a need for civil society groups (and international partners) to be self-reflective, i.e. not seeing oneself merely as 'provider of services/advisor" but as an actor impacting protection, through acts or omissions. This is of course happening already but it would be good to share practices (studies where available) to find out more about the success or failures of broader 'community' approaches.
I largely agree with much of the above, but I think we may also need to step back a bit and assess what is meant by "protection" of victims and witnesses. Often when talking about witnesses, those participating in local reconciliation mechanisms, truth commissions, or other forms of accountability, we're talking about physical safety from direct harm. In this instance, it is hard for me to imagine that there is a direct role for civil society to provide, for example, security patrols or assurances of witness de-identification. The role of civil society may be to provide training and/or monitoring. But, it seems to me, that the ultimate burden is on the state to actually provide and ensure these protections.
However, to the extent that protection also includes witness and victim psychological safety, there may be a more robust role for civil society. As Joanne and others rightly point out, the ultimate obligation under international law is on the state, but the state may not be the right vehicle in these cases to provide protection, but it may instead provide for civil society to carry out rehabilitation services, to ensure a comfortable environment in a testimonial setting, to accompany witnesses while testifying, and to follow-up weeks and months after witnesses have provided testimony.
Thanks to all for this really interesting discussion. I just want to add a few more words on the role of civil society in the 'game' of protection. Clearly, CS cannot provide security in the traditional sense of the word. But they can provide relationships which illustrate that the victim or witness is not alone so to speak. For instance, during the xenophobic attacks in South Africa, churches organized prayer meetings with non-nationals. This proved that the 'outsider' were not alone and hence not victimizable to the same extent. Some of our projects work with similar models in relation to state detension practices. It is easier for the state to torture and ill-treat if they think that their actions are met with approval - for instance the beating of alleged criminals - than if there are people outside looking in who protest against the potential violence. It is not protection in the traditional sense but it still protects.
Such groups may also act as mediators for justice seeking processes as they can link the poor with more traditional human rights organization, often located in the more affluent areas of town. But it takes a lot of work to connect these localk organizations with accountability processes. That void still needs to be addressed. Good suggestions are welcome...
I agree with the discussions and ideas presented above. There is no doubt that the prime responsibility for protecting survivors, witnesses, and other persons in the cases of human rights violations rests with the state under international human rights law. However, does it really work in particular in those countries where rule of law or state mechanisms do not function properly?
I interviewed hundreds of torture survivors, witnesses and other victims of human rights violations in Nepal during the last 10 years. The role of civil society becomes more vital in providing protection to survivors and witnesses in those countries where rule of law and state mechanisms do not function properly. I realize that even a very small support or involvement from civil society can boost the morale of survivors in fighting against injustice.
However, the questions arises from above discussions as well 'is the role of civil society enough for the protection of survivors and witnesses?' Are the civil society at local level capable to respond threats, risk to the survivors, witnesses? When the actual protection issues arises in the field, it is very hard to provide protection to the survivors and witnesses. Very often, the organizations and HRDs themselves are under sever risk and state is very often negative on your protection.
In Nepal, the civil society organizations are not able to efficiently respond to the cases of protection of survivors and witnesses and as a result there are several cases where either victims do not want to proceed cases for the litigation or withdraw if they have already filed before police or courts. I have several examples of such cases. In these contexts, the role of international community including international organizations, embassies and UN becomes more crucial to strengthen the civil society at local level and create pressures to the government. It is important to strengthen the civil society as they are always there in the field to act!
I agree with Kamal. Without democratic society, it is impossible to implement rule of law. We need to democratize civil society and bring accountability of state.
I concur with the importance of democratic and accountable goverance but there is a long list of countries where governemnts that are the poroduct of free and fair elections - such as Sri Lanka 2005 - where a majority back policies that are inherently discriminatory and a continuation of well-documented structural violence that is deadly for a minority that does not enjoy constitutional or other safeguards for their safety and general well-being.
Need to eliminate locust effect of organized violence and torture too. Democratizing society and Institution are one of many answers.Please watch a video for small initiaitve in village of Mushar. https://en.wikipedia.org/wiki/Musahar
I agree with Lenin Raghuvanshi, and the short video provides great message that 'we need to break up silence' for the changes. Many changes are possible when we speak up! Thanks for sharing this inspiring video.
I agree with you Norah Niland. However, I have seen several countries in Asia, Africa and Latin America where they practice democracy. These countries claim that they practice democracy and they have accountable governance, but are they real?. For instance, there is democracy in Nepal and the constitution is very favorable for the protection and promotion of human rights and access to justice, however, in reality it doesn't work. So, the actual realization of state protection is necessary. Yes, it can be possible for the protection of survivors and witnesses only when true democratic and accountable governance exist!
Of course ‘protection’ – constitutional and other mechanisms that secure and safeguard the ability of citizens and others to exercise and enjoy their fundamental human rights – is a core responsibility of states (or Occupying Powers eg in relation to Afghanistan, occupied Palestinian territory, Iraq), namely those in which HR problems occur and, it can be argued, in states which back or support abusive regimes such as the situation in Afghanistan, South Sudan, Syria, Somalia or in Sri Lanka (during the end stage of the war when the elected Rajapakse government pursued its defeat of the LTTE without reference to the human cost borne by besieged civilians.) Also, in a world of ever intensifying globalization processes, the extent to which weak or dysfunctional states can deliver – should such states be inclined to do so – on their sovereign responsibilities to protect will vary.
This discussion thread is concerned, primarily, with those at the receiving end of torture but there are many settings where external decision-making, in the context of globalization, hinder, undermine or render impossible – as in disallow – individual action by states to pursue measures deemed in the best interests of their citizens. I have in mind the Troika (EU, ECB, IMF) austerity package (in the context of the recession that began in 2008) in countries such as Greece, Ireland and Portugal to name just a few. HR issues associated with climate change or the problems raised by EU polices in the face of increased numbers of asylum seekers and vulnerable migrants in search of safety and human security in Europe point to the challenges inherent in an inter-state system of global order that includes respect for the rights of individuals and particular groups such as refugees. In sum, the role and agency of state institutions are likely to face a growing number of problems that affect the protection that is the right of all individuals.
While agreeing that it is the primary responsibility of the state to protect victims and witnesses, I would also like to bring the fact that in most of the countries where the protection of victims and witnesses is critical, state providing such protections remain illusionary. I just got back from Pakistan, where I have been working for some time. It is shocking to see how victims and witnesses are forced to suffer in silence for the atrocities that they suffer at the hands of countries’ most powerful security apparatus.
It is not difficult to understand the threat that many human rights defenders and organisations themselves face, who in some other societies could have been counted as the organisations/ individuals relevant for the security of victims and witnesses.
Although I am reflecting from my experiences in Pakistan, this however resonates to many other situations in the region where I have worked with the victims of human rights violations.
If I have to unpack some of the conditions that make these witnesses and victims vulnerable to security threats in the region, I could list few primary conditions. Firstly, they suffer it when they attempt to speak about the atrocities that they suffered and identify the perpetrators. Secondly, when they file complaints demanding criminal or other actions against perpetrators.... (I have listed these conditions thinking that in subsequent discussions we could discuss the strategies, how these works can be done without putting victims and witnesses at risk. For this, we also need to discuss the structural weaknesses in the criminal justice system).
Unfortunately, in many countries in the region that I am reflecting on, these victims and witnesses are asked to rely on the same institutions for their security, institutions that they fear the most!
In absence of protection of witnesses and victims many rights enshrined in different international human rights treaties remain empty promises. States should be held responsible for setting up independent victims and witness protection mechanism as the ways to give effects to the duty that they have under various treaties such as CAT, which has been discussed. However, where are the minimum standards for independent victims and witness protection institution/ mechanism? What strategies makes states forced to have them?
Mandira, you have summarised what we all face in South Asia! I would just like to add that when there is a divide among civil society and when human rights become a business and not a vocation, where do people turn to for justice? There has been a mention of distrust for NGOs among the general population. It is the same in rural Bangladesh. Granted - the Government needs a little help in development activities; but when it comes to human rights - specially civil and political rights- there are so many reasons why it does not give back!
We have to see the role of civil society at large not only NGOs, NGOs are part of it. I can understand your point. Again common in most of the countries in the region, NGO now has become dirty word. However, this has to be un-packed.
Most of the countries in the region have significant number of NGOs. For example, Nepal has about 20 thousand NGOs. I claim that contribution of NGOs in empowerment is significant in Nepal as people are organised even in small unit of the state either this or that name. However, the regulatory framework for NGOs in Nepal was developed in early 1980s when country was under autocratic rule and NGOs were outlawed/ band. The efforts to review it have been caught in controversy as the intention of the government is not to regulate the work of NGOs accepting their presence and contribution they make in democratic society but to control them and their activities. Again, out of 20 thousands NGOs in Nepal, only handful of them work with the victims of human rights violations, the category under our discussion, meaning where protection issues are concerned. These handful of NGOs are now forced to take the brunt of mess created by all 20 thousands NGOs.
These handful of NGOs, who work directly with the victims and witnesses of human rights violations, in some occasions they themselves are witnesses and victims of human rights violations (we are experiencing that) and need protection.
So, the issue is how civil society at large can play the role in protection. We do not see that happening in Nepal, Bangladesh, Pakistan as discussed in the context of some other countries.
One way of protecting witness and victims is also recognising the suffering of these victims and witnesses and standing by with the understanding of values these efforts have on society. Media could play significant role and as many other actors of civil society, will post this in different section.
We have to see the role of civil society at large not only NGOs, NGOs are part of it. I can understand your point. Again common in most of the countries in the region, NGO now has become a dirty word. However, this has to be un-packed.
Most of the countries in the region have significant number of NGOs. For example, Nepal has about 20 thousand NGOs. I claim that contribution of NGOs in empowerment is significant in Nepal as people are organised even in the smallest unit of the state either this or that name. However, the regulatory framework for NGOs in Nepal was developed in early 80s when country was under autocratic rule and NGOs were outlawed/ band. The efforts to review it have been caught in controversies as the intention of the government is not to regulate the work of NGOs, accepting their presence and contribution they make in democratic society but to control them and their activities. Again, out of 20 thousands NGOs in Nepal, only handful of them work with the victims of human rights violations, the category under our discussion, meaning where protection issues are concerned. These handful of NGOs are now forced to take the brunt of mess created by all 20 thousands NGOs.
These handful of NGOs, who work directly with the victims and witnesses of human rights violations, in some occasions they themselves are witnesses and victims of human rights violations (we are experiencing that), also need protection.
So, the issue is how civil society at large can play the role in protection. We do not see that happening in Nepal, Bangladesh, Pakistan as discussed in the context of some other countries.
One way of protecting witness and victims is also recognising the suffering of these victims and witnesses and standing by their side with the understanding of larger implications that this has in the society. Media could play significant role and as many other actors such as business community. Will post this in different section.
Mandira, in my view your question here gets to the heart of what we are discussing: Should the State obligation for ensuring victims are protected against reprisals include an obligation to establish independent victim and witness protection mechanisms; and if so, what are the minimum standards for such a mechanism?
As mentioned in an earlier comment, the Committee Against Torture has taken the view that the State has an obligation to ensure victims can obtain rehabilitation through independent institutions due to the fact that many will be fearful of approaching a State institution. Therefore, it is not a stretch to argue that the same logic applies to protection mechanisms. The more difficult question is what exactly should such an independent mechanism look like, particularly in light of the fact that many aspects of protection necessarily involve or rely on the State. For example, investigation of crime is usually carried out by the police under the direction of the prosecuting authority, and one component of protecting victims and witnesses is not disclosing their names during investigations. So how to balance the independence of the protection mechanism with the role of the criminal justice sector. Somewhere else in this conversation, someone (I forget who) suggested that an independent victim and witness protection body could play the role of mediating between a victim or witness, and the criminal justice sector. This would also be very interesting to explore.
I agree that protection should be a mandate of the State. However this does not limit the role of civil society in protection. I will try and share some of what we have experienced in the Maldives. The constitution lays the sole mandate of protection on the state. Then again it has not ceased the necessity of civil society interventions for protection. To give but a few examples, commissioners at the National Human Rights Institution were attacked inside their offices by vigilante groups - and no one could protect them. The human rights commissioners, with one of the most delicate protection mandates.
Similarly, human rights defenders have been attacked, disappeared and threatened every day. Our organisation has for over 9 years advocated with the National Human Rights Institution to dedicate at least a desk for the protection of human rights defenders, and we are yet to have the NHRI acknowledge the need.
To move to more positive feedback - The model of the Frontline Defenders is one that I applaud. While pushing for and encouraging human rights defenders and organisations to hold to account the state mandate, the FLD has a highly effective protection program, where victims are removed from threatening environments. It is a vital form of protection for those of us who work on the ground, and relying on a state mandate does not really help save a life. Regional networks of human rights organisations have had a long history of assisting one another in relocation and protection programs where individuals are hosted at neighbouring or friendly countries in the region until they can safely return home.
Nationally, civil society play a crucial role - and a very effective one - in protection while at the simultaneously working towards holding the state accountable for the implementation of protection and securities that the state are obligated with. CS have raised violations with regional and international mechanisms on numerous occassions, assisting in expediting action towards protection of individuals.
I completely agree that there is room for CSOs to play a role in providing protection, and the model of FrontLine Defenders which you mentioned is a good illustration of this. However, I think it's important that we distinguish between the kind of protection that is available for human rights defenders and that of victims who do not have this profile. While human rights defenders can be (and often are) victims of torture themselves, the protection systems that are available for them through programmes like Frontline Defenders, are not available for the vast majority of victims. DIGNITY is currently working on a report on victim and witness protection in torture cases, and we have looked to the human rights defender models and realised that in most contexts, it isn't feasible to apply these models for victims and witnesses due to the sheer volume.
Having said that, it would be really interesting to hear more about examples in which CSOs (whether NGO or other forms of CSO) have played a role in providing protection (in whatever form) to victims and witnesses. In one example that we know of from Sri Lanka, a church leader provided protection to victims who were facing reprisals in the form of temporary housing. There are no doubt many other such examples from around the world. It would be great to learn more about them during these online discussions.
As you rightly point out, Shahinda, the Maldives experience shows that both the state and civil society, including international civil society, have vital roles to play in protecting victims and witnesses. The ability and willingness of state institutions, from the parliament through the courts to watchdog bodies had ebbed and flowed with the changing political context. Starting from a situation of absolute impunity for rights violations until about the 10 years ago, there was a brief period when there appeared to be a sense that at least, some of the insitutions might be able to play a credible role in protecting victims. I am sure better training and capacity-building may have made an important difference throughout, but the lack of political will was often the bigger obstacle. While politicisation makes a mockery of the mandates of these institutions, the deep polarisation in the community possibly also undermines the ability for CSOs to play a credible role; and this may be one of the reasons that support from regional and international CSOs was vitally important to provide safe haven for many at risk, and to advocate on their behalf. I salute you for the work you have done in protecting victims for over a decade and now the efforts you are undertaking to prevent the introduction of death penalty especially in a situation where the judiciary is blatantly manipulated for political ends.
This discussion has already made it very clear that it is difficult, and often impossible, to separate victim and witness protection from human rights protection and respect for the rule of law more generally. If a legal order is such that it does not protect individuals, or at least members belonging to certain groups, from violations in the first place, often because of political and societal power relations, there is little prospect that there is an interest to support or protect individuals or organisations challenging those in a position of power. In terms of advocacy strategies, it will be important not to focus on victim and witness protection in isolation as any mechanisms are bound to fail where there are broader problems in the justice system, examples abound. One important opening are periods of transition where victims' concerns may have greater traction and can be translated into concrete institutional reforms. Another strategy might be, as a starting point, to frame victim and witness protection primarily as a matter of criminal justice, and effectively combating crime, first to generate buy in; a lot is already happening in that regard where states have a strong interest in effective prosecutions, for example in relation to organised crime.
This is clearly an interesting debate, and we seem to have focused so far on violations caused by states or those violations which occur in the public sphere. Perhaps we should also include in this those violations that occur at home, from intimate partner violence, marital rape, child abuse, honour killings and so on. Documenting these violations present their own sets of unique challenges; and protection mechanisms may be even more difficult and elusive. In additon glaring failures in the rule of law, cultural relativism can apply a cloak of impunity or a code of silence on these crimes, keeping victims and witness out of reach of civil society or protective agencies. It has become fashionable, even in repressive countries to showcase adherence to CEDAW by passing legislation to suppress domestic violence, but with little budgetary outlay or policy programmes to implement them. In my experience, more strident assertion of cultural relatvist ideas have, in some countries, like the Maldives, for example led to serious regression in the plight of victims of domestic violence.
There are clearly many areas of overlap, which Ahmed rightly notes here. While this is a very interesting proposition, there is, in my view, a fundamental difference between torture and ill-treatment and victims of private-sphere violations in terms of protecting victims and witnesses. Victims of torture are victims of State officials, who in many contexts would also be the ones charged with protecting them as victims and witnesses, and for this reason, the traditional models of victim and witness protection (where they exist) are usually not appropriate for victims and witnesses of torture. However, it is clear that protection is usually elusive for all groups, which raises a larger issue.
I am posting an article in this section (although it could also be posted on HR Protection Mechanisms, or the Open Forum) as it highlights the role of different actors and institutions in a county where there has been significant investment since 2002 in building Afghan HR expertise and judicial capacity but to limited discernible effect as illustrated by the infamous case of Fakhunda. That being said, it is not easy to measure the impact of the media and social media or training of the judiciary in a lawless setting where (a) the rule-of-law system has clear deficiencies and (b) activists and others make headlines and call for a particular course of action but the end result is dispiriting and points to the importance of a long range perspective; transformative and sustainable change requires societal support and a credible and fair judicial system.
Fakhunda was a young woman who was falsely accused of defiling a Koran. She was lynched by an angry male mob in the center of Kabul in March 2015. This link to a New York Times article (December 2015) has been re-posted in various newspapers today as it has just won a Pulitzer Prize for the journalist, Alissa J. Rubin who was based in Afghanistan for some time and frequently commented on HR concerns.
This article in the Irish Times (and video in the longer NYT piece) tracks the zig-zags in this case and the gulf that needs to be bridged between traditional power structures and systems and those pushing for gender equity and respect for the HR of all. It also comments on the different interventions of external actors involved, in principle, in the building or strengthening of Afghan state institutions.
Flawed justice after mob killing of Farkhunda, Irish Times
Alissa J Rubin NYT article/video:
I think maybe one thing that hasn't been discussed yet is the particular role that civil society plays in protecting victims and witnesses in a refugee context. By definition, they are unable or unwilling to return to their state of origin, and likely have diminished protections in their state of refuge. With about 60 million refugees worldwide, I wonder what role the host state vs. civil society vs. international institutions play in providing protection to victims and witnesses in the refugee context.
It would be really interesting to hear if anyone has specific experience in this context and what roles each of the respective institutions played, particularly for refugee witnesses that have survived torture, but could not return to their country of origin. How has this been handled in the past in certain contexts? What are lessons learned for the future? And what role do the institutions that they are providing witness to have a role to play in ensuring not only safety for the witnesses as they provide testimony, but even after that happens? Or to find a new home for them? Is this something investigators should be involved in?
I too am interested in talking about civil society protection for refugees. In particular i would love to hear people's experiences of enacting sanctuary, how they have gone about organising that. It is a challenge the Love Makes a Way movement in Australia is wrestling with at the moment.
Do others think a sanctuary movement within certain religious communities in your countries could be viable for the protection of victims and witnesses that have been discussed in this conversation?
I do concur with the general argument that it is the statutory role of the state to protect victims and witness of torture and related violations. However in many instances whether in 'democratic' or 'undemocratic' societies the first point of call for witnesses and witnesses is not always the state, especially with the increasing focus on counter terrorism and anti- organised crime operations that are viewed by many states as counter to human rights principles.
In many instances where there are functioning state provided witness protection mechanisms, witnesses and victims are only eligible to join the protection program once the prosecutor has confirmed charges against suspects. This is the case in Kenya. What this means as pointed above by several of you, is that the victim and potential witnesses are 'on thier own' for a very long time-from the point that they report and or indicate their willingness to testify, to the point when the case goes to court and therefore earning them protection. In torture cases this waiting period can be as long as 5 years!
On the other hand protection should we not view protection as going beyond physical protection/relocation?. Should we not problematize protection to unravel its complexity across didverse socio-cultural, economic and political contexts?
When we consider the points above, it is important to discuss protection as a shared responsiblity; one statutory on the part of the state; the other voluntary but moral duty (do-no-harm as pointed above) for all other actors that interact/act in support of victims and witnesses, the latter including NGOs FBOs, social groupings. savings/table banking groups, etc. I argue that both statutory and voluntary actors all have thier distinct advantages, which we must harness on to enhance protection for witnesses and victims.
Those of you who have been following the Kenya ICC cases at the Hague mayhave noticed how complex witness protection is: a) in a context where the individual witness is beholden to not only the immediate family but also the extended family and clan; b)Where the long term Kenya and western states geo-political and economic interests supersede concersn for witness protection or conclusion of one case; c) where witnesses are relocated to new environments.
This has been a very interesting discussion. Reading through the thread so far, it seems we have been talking about at least three different types of risk to victims and perpetrators, and that civil society can play a different role in these different types of risk. I recognise of course that they overlap and the descriptions are very crude, but broadly we seem to have a) high profile political detainees, b) suspects who have been under criminal interrogation, c) more apparently mundane forms of violence perpetratted by the state against marginal populations, such as street hawkers, sex workers, and the residents of informal settlements. It seems to me that it is easier, in relative terms, both for international civil society and the state to provide protection for the first group in all the ways that have been discussed. For the second group, there are relatively well developed monitoring framework, such as the SPT, which although not often followed through, at least set out the parameters. It is the third group where there seems to be the biggest gap, where there can be little trust amongst victims, both in relation to human rights organisations and the state. As has been pointed out several times though, there are lots of civil society organisations that do work with such communities. One implication is that broader alliances need to be build between different sectors of civil society. The question is how?
Following on from Toby's comment, which so clearly sets out the three groups we are referring to when we talk about protection, I would also be interested in hearing what forms of protection CSOs working with victims of State violence have employed. Do they play the mediation role between the victim and State institutions, as proposed by Steffen in an earlier comment? Do they provide temporary or permanent relocation? It would be really interesting to hear of some practical examples of what CSOs actually do to help victims who fear or are facing reprisals when there is an absence of an effective State mechanism (or indeed, when a victim is not trusting of a State mechanism and therefore not willing to access it).
HumRts Marie raises many important points. To put some of this in context it is worth noting that, according to UNHCR data, globally there were 19.5 refugees (HCR, UNRWA) in 2014 with developing countries hosting more than 86% of them. In 2014, there were some 38.2 million internally displaced.
In principle, once recognized as a refugee, certain protection comes into play. Traditionally, most refugees were concentrated in camps that, in many instances, HCR played a key role as did established humanitarian organizations. Increasingly, a growing number of asylum seekers/refugees are concentrated in urban areas where their situation varies. In Lebanon, where every 4th person is a refugee, Syrian refugees have a very precarious status, are mostly not allowed to work and many do not receive any signigificant survival support. In the European Union, there is in principle a common system among EU countries but as headlines have shown this past year, the EU is focused on strengthening its external borders to resist the arrival of asylum seekers and others so that those seeking refuge end up using flimsy smuggler dinghies and other craft to reach safety. Both HCR and MSF have recently pulled out of processing/detention centres in Greece to avoid being associated with push-backs. My general take on the refugee/uprootedness scene is that current trends are set to continue ie increased numbers on the move while the EU (and other rich states such as Australia) focusing on resisting the arrival of people in need of refuge; this simultaneously sends a message to countries in the Global South that, traditionally and now, are the major refugee hosting countries. Pakistan for example has hosted millions of refugees for decades. The situation of IDPs (interanlly displaced) is often woeful depending on the country situation in which it occurs and levels of access by humanitarian outfits. The situation of the non-uprooted, such as the besieged in places such as Syria, is often of greatest concern ...or is effectively ignored given a range of difficulties including accessing and assessing such situations.
The phenomenon of refugees is not new and increased numbers are primarily due to war, state formation or turbulent states. It should also be noted that in 1951 when the refugee convention was adopted, the world’s population was understood to be some 2.5billion people; today it is 7.4 billion. In sum, a core challenge is securing respect for the Refugee Convention everywhere and acknowledging the implications of crises and other phenomenon that oblige people to flee…across borders or internally within what are often dysfunctional states.
As Norah rightly points out, often with refugees immediate protection and humanitarian concerns are the primary function of civil society. Particularly, as you say, so many refugees are displaced in developing countries struggling with resource issues. Respecting the refugee convention (in the Syria context, some of the states of primary displacement aren't even signatories) then takes precedent.
I guess some of my questions are aimed at more protracted refugee situations - the Somali population in Kenya, for example, where refugees may have participated in human rights documentation, providing testimonies in various accountability contexts - in such situations is there a greater role for civil society to provide protection to such individuals. Might the primary role even be for civil society and not the state of refuge?
I think this is really important Marie, especially when human rights work- for perhaps perfectly good reasons- can end up creating new risks of its own- such as exposing survivors to further scrutiny (not even necessarily by the initial perpetrator, as is often the case with refugee populations).
I think this is really important Marie, especially when human rights work- for perhaps perfectly good reasons- can end up creating new risks of its own- such as exposing survivors to further scrutiny (not even necessarily by the initial perpetrator, as is often the case with refugee populations).
Good point, Toby, about the scrutiny by someone other than the original perpetrators. Especially when an immediate and unique risk to refugee could even include the possibility of refoulement where legal status in the country of refuge is questionable. It adds more layers to the ethical questions around documentation and accountability with refugee populations.
In India, we all talk about linking the survivor of torture with the justice system. But, in reality at perception level, it is believed that neither the system cares for the survivor nor the survivor believes that the system is meant for justice delivery. Any interested person can undertake a random survey anywhere anytime to validate this claim. The entry point of interaction between survivor and the system is the local police station. And the experience of police station across the county is well experienced, documented and best left for imagination. I do not think for moment that the county would succeed in reforming the police forces. So, the least, being a part of civil society group, we always try to do is to find an alternative which is replicable. In PVCHR, while implementing an EU funded project on 'Prevention of Police Torture against Muslims' we realised that police is not going to file an FIR whatsoever, and certainly not in the case of a Muslim survivor. So our strategy, before the survivor enters the police station, was to send the complaint letter to all the stakeholders of criminal justice system, media, political parties and community leaders who matters; use social media extensively to amplify the testimony of the survivor; and upload documents of legal importance. Police becomes the last agency to know about the survivor's verson. Thus we created our first line of defence for the survivor in the form of a virtual solidarity network. It helped the survovors to escape from the impending systemic manipulation. Most importantly, it costs nothing.
I am Dr Mohanlal Panda
Thanks Dr Mohnlal Panda. This is a really interesting strategy, and I think resonates widely with experiences elsewhere, and gets to the heart of the 'protection problem'- how do you report and incident when the perpetrators are associated with the people you are supposed to report to. It seems to work by flooding the public with information. I wonder if in your experience it is more or less likely to work with different types of survivors? ie. criminal suspects, political activits, women?
Thanks Dr. Panda. It is really an interesting strategy. I was wondering how you convince victims and witnesses to follow this strategy. In at least some of our research people would rather stay under the radar. Have the light shine away from them so to speak. The problem is of course that this strategy will only perpetuate impunity while at the same time making them stay safe here and now - maybe... So I guess my question is, how does one go about discussing this with victims and witnesses?
An additional point to add to the above very practical strategies, is the importance of treating the reprisal by the police or any other official body against the victim for raising their torture case with the authorities, or to try to intimidate the torture victim to back down from their complaint, is an additional crime.
Very few countries investigate and prosecute acts of reprisals against victims as separate crimes and there is very rarely a separate crime set out in the statute books with an appropriate sentence attached. So this is also something civil society may wish to press for.
Further to Marie and Toby’s comments viz the role of civil society in relation to enhancing the protection of refugees/asylum seekers, it seems to me that the political, security, social and economic context relevant to particular refugee situations will greatly determine how different actors – state, civil society, host communities, HCR, others – pursue particular interventions. Safeguarding refugees in a manner that avoids or minimizes additional harm should be the norm. However, in many instances, those facing acute protection concerns will be confronted with difficult decisions when obliged to choose between options that entail potential risks as exemplified by those headed to Europe having fled Afghanistan, Eritrea, Iraq and other locations where their lives are endangered.
In a world where a rich EU is greatly invested in resisting the arrival of asylum seekers it is highly likely that there will be growing challenges to the standards that Western countries have long championed as they advocated support for the Refugee Convention. Going forward, and as the numbers of up-rooted grow, it will be increasingly important that civil society actors everywhere are networked with like-minded groups to mobilize support for those in need of refuge. In sum, there will be continuing need for support, whatever the source, for individual refugees as well as vigorous and concerted action on the larger issues of retaining respect for refugee standards and international protection.
Survivors and witnesses as refugees raises a host of legal and political question. To begin with, does a survivor or witness facing reprisals fall within the scope of protection under article 1 of the Refugee Convention - this will often be the case but is not a given as there needs to be a nexus to the grounds of persecution - and/or do they enjoy protection from being sent back (refoulement) under human rights law? As as matter of policy and practice, similar to what has been done in cases of human rights defenders at risk, an effective strategy would be for states to at least provide temporary refuge to persons at risk. However, particularly given today's far from welcoming climate when it comes to refugees, states would probably be reluctant to make this a policy, ie recognising a category that may benefit from protection. Having said that, it should form part of advocacy strategies and guidelines that address the role of third states, eg by engaging with various UN agencies and mandate holders concerned.
I believe we need to distinguish between what should happen and what actually happens in practice. Often, at least in the context of South Asia, victims secure protection from various forms of organisations that they are a part of (whether we call them CSOs or something else); and there are cases where victims seek protection from the same organisations that perpetuate violence on them where it is police or political parties, for example. Often in search of protection victims remain silent.
I am encouraged to speak more about our action.
Reprisal from powerful state and non state actors are always accounted for in our strategy. There are two scenarios before PVCHR. Either the survivor leads the fight for justice and dignity with our support Or the organisation leads the fight having the survivor standing with it. It depends on the situation and differs from case to case. An upper caste or an economically strong survivor needs our support to some extent. He/She has the ability to fight or negotiate with the system. But a dalit or a disempowered person can not match that skill to negotiate. We stand by such survivors unconditionally. In the last one and half decade, we have not deserted any of our survivors who approached us. Our fight for justice is continuing at several stages both in courts and human rights institutions. Our team members have been threatened. Some of them are physically harmed. Few left us. But, that is the price we are willing to pay for protecting our constitution. And yes, things are changing.
Coming back to strategy, we believe in empowering the survivors. The organisation conceptualised 'Testimonial Therapy' with support from Dignity:Danish Institute Against Torture, which helped the survivor overcoming the inner fear and fobia. This psycho- social process helped the survivor reintegrate into the society with honor. Once the psychosocial rehabilitation is completed, we have witnessed a new found determination in the survivor to seek justice through the legal process. There is something deep in ourself that belives in law, encourages us to fight for dignity. The marginalized groups too have that. They just need someone to help them, and helping them to believing in themselves and provide right direction. Survivors, who have undergone the psycho- social counselling have rejoined the legal process and many have won their cases. We have not suceeded in every case. Initially, people did not trust us as most of us come from upper caste background and incidentally, most of the perpetrators come from upper caste. We continued to work with them. Now they refer cases to us.
The other part of the strategy is to follow transparent process and accept accountability for the effort we make. Honest communication with factual data helped us to win policy makers' confidence who in turn take up cases of the srvivors. Today many of the high profile policy makers remember the survivor whose cause they took up. They are constantly updated about the status of cases. Their involvement resulted in zero manipulation by the state appratus, fast tracking of trial, financial compensation and other benefits. What is important for us is that we continue to cite these cases for benefitting other survivors. These days we receive support from international networks who write to both the federal and provincial governments to help the survovor. We welcome such supports. Yes, we achieved a lot by using information technology. There is an instance, where an sms prevented some rouge elements in the police dept in the state of Uttar pradesh from carrying out an encounter of a street vendor, by branding him as dreaded criminal.
I had mentioned how creation of a virtual network of supporters helped the survivor in yesterday's comment. Having said that, I must confess that we and the survivor continue to face harrassment from the police and others at every level. But, the police also remembers that the survivor is not alone. And forced confession would not work.
I am Shirin Shabana Khan, Program Director of PVCHR. I am sharing PVCHR expereince for the empowernment of survivor and witness as follows:
Solidarity and Protection
Solidarity is not a matter of altruism. Solidarity comes from the inability to tolerate the affront to our own integrity, passive or active collaboration in the oppression of other and from the deep recognition of our most expansive self-interest. From the recognition that, like it or not, our liberation is bound up with that of every other being on the planet and that politically and spiritually in our heart of hearts we know anything else is unaffordable.
The most important knowledge is of the difference it makes for people. PVCHR inspires people through the processes of testimonial / honour ceremonies of testimonial therapy. With a view to create solidarity across social and economic boundaries, it has also successful organised ceremonies with victims of different types of violence such as bomb blasts, police torture, bonded labour and domestic violence.
Campaign and Advocacy
In order to strengthen the efforts of Solidarity and Protection, PVCHR continuously undertook the freedom from TOV awareness and campaign in the covered villages and blocks in more sustained manner on the basis of need basis analysis. Another important aspect is the consistent efforts to sensitise and engage in institutional reforms through advocacy efforts. Social intervention is used to refer to an alternation in intra societal relationships planned or unplanned, natural or intended, which leads to social change. Intra societal relationship exist between individuals, individuals and groups, organisation and institution, which get affected through mediation process (interventions) or the agency (individual or institutions who are involved in the process). Social intervention has effective impact on the quality of life in a society or on a large number of individuals and groups. Change occurs as a result of three interlinked processes.
1. First, we expect a change in the distribution rights, resources and services.
2. Second, the development of life sustaining, life enhancing activities and resources ensure minimum quality of life, and to improve quality of life.
3. Third, the allocation of the statuses, within society, family, or work involving tasks, roles and associated privileges, that ensures an equal scope for upward mobility to all, without discrimination.
In order to ensure these to victims both individual and group level interventions are very necessary. But these efforts alone cannot change communities and their value chains that surround the victims. Even if change occurs, it is difficult to sustain unless supported by the peer group social norms, relationships environment and supportive public policies. Hence, the focus of change in community based interventions is on changing the social milieu than just the individual. It also recognises the lasting change in this process that begins within a community. The United Nation Development Programme (UNDP) acknowledged an emerging global endorsement of human rights-based approaches to development, based on the PANTHAR principles referring to participation, accountability, non-discrimination, transparency, human dignity, empowerment and the rule of law. UNDP emphasises these to be the core of the post-2015 agenda. Community participation at all levels of implementation is an integral aspect of community empowerment approaches.
The empowerment approaches aim to challenge those systems that are preventing individuals, group and/or communities from having the power of control over their lives or environment that enable them to meet their own needs and rights (Teater 2010). The benefits of empowerment include improved self-image, self-efficacy, confidence, and hopefulness, as well as increased ability to cope with daily life, greater satisfaction with treatment, and higher likelihood of reaching treatment goals (Linhorst, Hamilton, Young and Eckert 2002).
Linhorst and Eckert (2003) discuss seven factors that promote empowerment. First, some degree of symptom control is needed so that individuals are able to engage in decision-making. Second, the individual must possess decision-making skills required to make meaningful, thoughtful, and deliberate decisions. Third, the individual needs access to resources (emotional support, advocates, and logistical resources). Fourth, concrete incentives for participation in decision-making promote empowerment. Fifth, the setting or environment must have structures and processes through which individuals can participate in decisions. Sixth, individuals should have meaningful and plentiful information about their options when making choices. Finally, a supportive culture that welcomes and nurtures involvement in decision-making promotes an individual’s empowerment.
You Shirin Shabana Khan brought very important points about empowerment of survivors through solidarity and protection, and campaign and advocacy. The strategy of PVCHR seems brilliant. I am always in favor of empowering survivors to boost their morale, confidence and increase their access to justice which I have explained in the discussions above.
However, I am more interested to know how this strategy works for longer time i.e. sustainability of the agenda of empowerment of survivors.
And, do you have collaboration with National Human Rights Institutions in particular National Human Rights Commission in India for the sustainability of this strategy of empowerment of survivors and witnesses?
Investing on empowerment of survivor
Few more points to add. For us in PVCHR, empowering the survivor is a continuous process. Giving a voice to the Mushahars (most marginalised among dalits ) in Uttar Pradesh helped the entire community setting development agenda for their village. There was time when the Mushahar children were dying due to hunger. Now their villages have achieved freedom from hunger. We do not go to their villges any more, instead they come to us with survivors of torture. We believe that if a survivor stands by another fellow survivor to help overcome the pain and get justice, it is empowerment.
No institution is free from biases, including National Human Rights Commission (NHRC). We do not ever let the decisions of the NHRC go unchallenged, if we think it is unfair to the survivor. Over the years, we have witnessed collective conscience has impacted the performance of HRIs. But there are areas of concern, for example, they do not set protocol for investigation of cases is an example of the impunity they still enjoy. On the brighter side, NHRC has been very active in awarding compensation to the survivors. In our cases, NHRC has awarded total compensation amount of over totalling over 2 million INR in last five years. For some survivors, search for justice ends after getting compensation and we respect their decision.
To the question: whether there has been noticeable change at the systemic level in relation to the practices that violate human rights ? The answer is yes and there are too many examples. The answer lies in finding out, for example;
how many survivors have been revictimised by the perpetrator and state nexus ?
How many bonded labor have gone back to the slavery again ? and
How many cases the NHRC declined to consider which were taken up by court ?
Investing on empowerment of survivor
In PVCHR, we believe that empowerment of survivor is a continous process. Breaking the silence and giving voice to the survivor is empowerment. Giving voice to the Mushahar community (the most marginalised group among the dalits) helped them setting the development agenda in their villages. There was a time when the community was infamous for regular reporting of hunger deaths. Now they have achieved freedom from hunger. The community continues to sustain its resiliance. PVCHR does not work in these villages any more. But often the elders from the Mushahar community accompany other survivors of torture to our office. This is how few individuals have sustained the impact of empowerment.
We access and approach all the institutions that has mandate to give justice, In the process of our work we have realised that no institution is free from biases, including the National Human Rights Commission (NHRC). In the last decade, mobilisation of public opinion and increased awareness on rights influenced the collective conscience of the society resulting in proactive functioning of HRIs. At the sametime, it is also true that these institutions enjoy impunity because none of them have a protocol to explain how they take up and deal with the cases.
However, the HRIs have in the last one decade done exceptionally good work in the field of providing compensation to the survivors and punishing the government officials for failing in their constitutional duties. In our cases, the NHRC has awarded over 2 million INR to the survivors in the last less than five years. For some survivors, receiving compensation ends their fight for justice. We respect their decision.
To the question-has there been any noticiable change at the systemic level in relation to the practices that violates human rights ? The answer is yes. There are too many examples. Can we look at the following trends ?
How many survivors have been revictimised by the state during the entire process of seeking justice ?
How many bonded labors have gone back to the slavery system after being free ?