Effectiveness of Protection Mechanisms

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Effectiveness of Protection Mechanisms

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:

  • How effective are current protection mechanisms for survivors and witnesses?
  • What are the biggest challenges to their effectiveness? 
Effectiveness of Current Protection Mechanisms

As a Law teacher and human rights defender in Bangladesh, I would like to focus on the mechanisms and challenges we face here. Human rights organisations focusing on civil and political rights are constantly under watch and their members and staff harassed. Human rights defenders at the grass roots level are threatened and arrested. The supression is becoming worse as the government is becoming more repressive - especially after the highly controversial 2014 Parliamentary elections. Protection mechanisms here mean the protection of the law. Bangladesh does not have a victim and witness protection law.  Criminal law and procedure are misused, as are the law enforcement agencies - who do the bidding of the government and its supporters.  We have ratified most of the important Conventions - apart from OPCAT and the convention dealing with enforced disappearances. We have ratified the Rome Statute. In 2013, we even enacted a law against torture and custodial deaths.  However, the government has also recently proposed the enactment of some controversial laws; and amended repressive laws  making them worse. Including the death penalty as the maximum punishment, seems to be a popular amendment.  The Constitution has been amended twice in the seven years this regime has been in power - and now criticizing it is an offence that may be punished with death; impeachment of judges has been taken out of the hands of the Supreme Judicial Council and given to the Members of Parliament. Furthermore, local level elections that were once held with independent local candidates are now, by amendment of the law, held under political banners/symbols.  This has cause high levels of vote rigging, corruption and violence - ensuring that the party in power also reigns supreme at the local level. Institutions that are 'independent' on paper - the Anti Corruption Commission, the National Human Rights Commission and the Election Commission for example, are all under political control.  Therefore, in reality, a falwed elections, a weak and ineffective Opposition in parliament,  weak and manipulated Commissions,  rampant corruption, misuse of power, repressive laws and serious lack of independence of judiciary and rule of law are the biggest challenges survivers, witnesses, human rights defenders  have to face. The space for voicing greivances has shrunk to almost nothing. Torture and enforced disappearances (claimed to be 'kidnappings' by the government)  have instilled fear in the people.  Police are now also shooting protesters and activists in the leg (over 30 victims in 2015 according to reports), from a short distance - which has resulted in amputation for several victims. Private television channels are monitored and 'talk shows' are sometimes even told whom to invite and whom not to make discussants. The government has drafted a 'National Broadcasting Policy' to ensure its propaganda and repress criticism. Most private channels and newspapers are owned by people sympathetic to the current regime or by those who are now forced to publish with caution. How do victims and witnesses survive in this? It is the international human rights community that keeps them strong - and the small number of human rights defenders in Bangladesh that are also protected by the international human rights networks.   

Protection: Part of the broader criminal justice system

The situation in Bangladesh, as described above, males it clear that in order for victim and witness protection to be effective, the larger criminal justice institution of which protection is one component, must be functional and effective. A disfunctional or non-functional criminal justice sector which does not abide by the rule of law, will not be capable of ensuring that victims and witnesses are effectively protected. As the Special Rapporteur on extrajudicial, summary and arbitrary executions has noted, "Witness protection cannot be viewed as an isolated challenge. Rather, it must be seen as a crucial part of a comprehensive system designed to effectively investigate, prosecute, and try perpetrators of human rights abuse. Witness protection will be ineffective if the other components of the criminal justice system are not also functioning well." (See Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions of 20 August 2008, UN DOC: A/63/313, para. 15). It would seem that in Bangladesh, the lack of legal provisions establishing victim and witness protection is a major challenge to ensuring victims and witnesses receive protection. However, even if legislation were passed, the absence of rule of law in the functioning of the criminal justice system pose a serious challenge for implementing any legislation providing for the protection of victims and witnesses. It is therefore imperative that any efforts aimed at improving the effectiveness of witness and victim protection mechanisms must be seen as part of a broader effort for criminal justice sector reform. 

It would be interesting to hear what victims and witnesses of torture in Bangladesh actually do to protect themselves: do they refrain from reporting the crimes they have been subjected to? Do they seek protection and assistance from community or non-governmental organisations, such as temporary relocation? It would also be interesting to know whether there are any kinds of protection mechanisms available for victims and witnesses of crimes carried out by non-state actors, i.e. organised crime, domestic violence, etc. Protection mechanisms here is used in the broad sense of the terms, including measures in court to protect victims' and witnesses' identities from being exposed, measures to prevent victims from having to be face-to-face with the perpetrator of the crime against them.     

Apart from teaching Law, I am

Apart from teaching Law, I am a founding member of a persecuted human rights Organisation called 'Odhikar' (www.odhikar.org).  I have spent approximately 20 years studying torture, ill treatment and enforced disappearances in Bangladesh and I can tell you that a lot of the incidents are not reported.  Odhikar gets its information from the papers and from its local-level human rights defenders - who are now threatened too.  Victim families are scared of further persecution and harassment and often the police threaten the victim with death if he complains or reports the matter - but then, who will he report it too? It will be the same police station where the incident ocurred!  Furthermore, families of the disappeared are constantly under threat.  Last year they wanted to hold a meeting at the National Press Club, organised by OMCT, FIDH and Odhikar - but in the evening before the meeting we got a call from the venue saying they were cancelling the event.  On the day of the meeting, there were police all over the National Press Club and some victim-family members were threatened over the phone.  As for domestic crime - trial in camera for rape and domestic violence are provided for by law, but not always taken advantage of.  Laws of arrest are abused. Our Domestic Violence Act 2010 provides for protection orders (basically restraining orders).  However, all good intentions are destroyed by corruption and political influence.  This article might interest you: newagebd.net/106230/how-to-kill-a-pro-people-law/ as it shows how the police try to manipulate the law.

 

Lots of important points and

Lots of important points and issues here.  As noted in my comment (in State, Civil Society) on the distinctiveness or characteristics of war-torn settings in relation to a rule-of-law culture and related institutions, the local/national and international context, in my view, is critical. 

As a manager of a large UN human rights team in Afghanistan, a country where impunity was embedded and exacerbated by the strategic and political agendas of external actors (who brought back and backed well known, despised warlords), it was vital that (a) human rights were seen to be the concern of all, (b) that action on human rights concerns was not perceived as a passport or means to exit the country and (c) that UN human rights staff, including in particular national staff, were vigilant and objective about threats.  In sum, harm to HR workers was a problem for obvious reasons as well a minus for human rights programming in general.

In any HR initiative, it is important from the outset, to assess risks, take preemptive action to mitigate these, and have networks that facilitate or help enhance the safety of all affected by abuses whoever is the perpetrator including state authorities. 

Just to follow up on the

Just to follow up on the South Asian focus on the previous posts--- there are a number of similarities in what is happening in the Maldives, another South Asian state with little or no protection for victims and witnesses. From 2003 onwards, a number of reforms were instituted in the Maldives to protect and promote human rights in general, but after a promising start, things began to falter a few years back and things appear to have gone back to where they were two decades ago. However, in the intervening period, a range of domestic institutions were created to promote rule of law and accountability, such as an independent Police Watchdog to investigate allegations of toture and other abuses, a watchdog for the judiciary to act on allegations of judicial misconduct, a Human Rights Commission and self-regulating mechanisms for the media. However, political parties hijacked these institutions and made them lapdogs of political power thereby rendering them toothless, or worse, complicit in the abuses they were designed to prevent. Where any showed any temporary resistance, the supreme court intervened with accusations of sedition and treason-- as was leveled against the Human Rights Commission for its report to the Office of the High Commissioner for Human Rights for the second Universal Periodic Review of the Maldives. The failure of domestic protection mechanisms was accompanied by the failure of international/regional human rights protection mechanisms.  Both Bangladesh and the Maldives are part of the Commonwealth where a Ministerial Action Group exists to monitor and address situations of persistent violations of the principles of democracy and human rights. One is amazed why despite all that has happened in these two countries over the past 5 years, the Commonwelath Ministerial Action Group has failed to place either Maldives or Bangladesh on its formal agenda! Persistent failure to give serious attention to abuses committed by  these states has emboldened the institutitons and groups who carry out violations in these countries and made a mockery of appeals made by victims and human rights defenders to their neighbours in South Asia and to the wider international community. The failure of the CMAG to act on these situations is partly the result of the politicised and non-transparent manner in which the body conducts its proceedings. This week, CMAG Ministers will again meet in London, and it is highly unlikely that, notwithstanding all that is going in Bangladesh and the Maldives, that Foreign Ministers on CMAG will agree that there is a need to give space on their formal agenda, leave alone take any action against these governments!

The Maldives, like Bangladesh, is also party to a range of international human rights treaties, and one of the urgent measures that the last review by the Human Rights Committee recommended was to examine and address allegations of torture in the period since 1978-- but to date, no action has been taken by the national authorities, and are in fact persecuting those who have grievances dating from that period.  As a consequence, victims are increasingly becoming reluctant to talk about their grievances, much less take any action to seek redress. The Maldives has signed on to Optional Protocol to the ICCPR-- but to date, not a single case has been lodged with the body. This may be for many reasons, including lack of awarenss on how to file a petition, fear of reprisals, and lack of motivation due to a widespread belief that nothing works. Add to this recent libel and defamation laws which could land a petitioner in jail or faced financial ruin or both!

I might also add that, there  are many who believe that current moves to introduce the death penalty are politically motivated and that some of its early victims could be people who will be carrying to their grave information that could implicate powerful people in criminal wrongdoing.

Despite this gloomy picture, it is highly likely that both these governments remain highly sensitive to international pressure, and in the case of the Maldives, the HR Committee remains an untapped resource for victims to advance their claims for justice. Item IV consideration on the Human Rights Council could also have a significant impact on these two countries, both to prevent further abuse and secure greater protection to victims and witnesses. 

HR Mechanisms and Int'l Pressure

Ahmed, I somehow missed this earlier and your last point really interested me. I'm intrigued by what conditions or circumstances are necessary for international pressure or the potential for embarassment to influence behavior (and consequently protection of victims) for the better. Oftentimes it's seen as a fear of losing international military or financial assistance. But much more may be at play. I wonder what factors lead you to believe that in the Maldives this might be the case? And whether there are efforts by civil society in the Maldives to tap into the universal mechanisms like the Human Rights Committee, UN CAT, Special Rapporteur mandates, or others? Or if there are barriers to participation (including fear of reprisals) that limit the willingness of civil society or victims to raise specific cases? 

The points above from Saira,

The points above from Saira, Jo-Anne and Norah about the need for broader criminal justice reform are immensely important. Abuses do not take place in a vacuum. I wonder if there is also not space for thinking about wider cultures of violence as well? Threats against witness and perpetrators cannot often not be seperated from the initial abuse, therefore it might be best not to think of one system that prevents human rights abuses, and one that protects people after the fact, but to see it as a continuum. 

A situation such as in

A situation such as in Bangladesh, which is sadly not exceptional, raises key isssues about the effectiveness of protection mechanisms, and in turn the impact of a lack of protection on human rights protection more general, as it perpetuates impunity. There is no shortage of standards which have been developed in the field of international human rights law and international criminal law, and best practice at the national level, now also reflected in the European Victims Directives (set out in excellent reports by REDRESS and others). As posts have already made it clear, where these standards are needed most, there are often least likely adhered to because of the nature of a regime or general rule of law weaknesses. It is therefore broader than a a focus on criminal justice sector reform and raises key questions of political and legal culture. Addressing these questions is a long term effort so doesn't help victims and those working on their behalf in the short term. What are, then, the best strategies for effective protection where the envisaged criminal justice tools aren't available, or imperfect? Saira mentioned the importance of strong human rights defenders networks and support by the international community. But isn't there also a potential downside, that this might isolate actors further, being branded traitors, un... (whatever it is in the country concerned) etc.? What is the role of communities, to provide practical support for individuals and to advocacte broader changes? This has been widely discussed in the Sri Lankan context and it would be interesting to hear about Odhikar's experience and that of others.

Documentation of threats/attacks etc strikes, and their physical, psychological and societal consequences strikes me as essential. While it may not provide protection as such, it constitutes a record of violations, may be utilised in individual cases (including where individuals have to flee the country) and can be used to demonstrated the nature and patterns, ie truth, of practices which can inform advocacy and/or, where applicable, 'transitional justice' demands. Several actors/bodies are already documenting reprisals etc at the national and international level but it would be interesting to find out more about experiences with documentation in terms of challenges and best practices.

Documentation experiences and practices

I agree that documentation is one important aspect and tool. New Tactics has conducted a number of conversations on how documentation can support, be utilized and preserved to protect and advance the rights of victims and witnesses. Here are a number of links that could be useful to those participating and engaging with this conversation:

 
 
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There definitely appears to

There definitely appears to be anecdotal evidence to indicate that effective documentation may be a means of securing some form of protection. It is the old saying that shining a light on abuse, often helps to uncover it, and that international pressure can influence the State (or other authorities) in a positive way. I believe that this is probably what Ahmed was indicating in relation to the susceptibility of the Government of the Maldives (despite the domestic situation he presents) to international pressure.

This may be somewhat hijacking this thread, but it would appear that in order to achieve this protective function, documentation adn the international advocacy around it, has to be effective. When I say effective in this regard, it relates to the ability to get the message accross, and to be perceived as credible. 

This is often a significant problem. The international human rights mechanisms are very legally focused, and very staid in their approach. This means that they do not speak the same language as many human rights defenders on the ground, leading to often inaccurate perceptions regarding the credibility of the individuals or organisation. This is not a criticism of the human rights machinery per se - these types of issues seem almost unavoidable with any institution - but if documentation is to be effective from a preventive protection persepctive (or indeed from the perspective of making sure that the HRD's work has an audience) then that gap needs to be bridged.

In some ways this ties into other discussions about survivors and witnesses. Surely one of the biggest issues, in terms of risk, is not only ensuring - to the extent possible - that we do no harm, but also ensuring that we use that testimony effectively.

Tools Designed for Human Rights Documentation
I wanted to share a bit more about documentation tools, particularly after seeing kamal.pathak's comment (#23) that he has "used the secure online database for human rights documentations including 'OpenEvsys' provided by HURIDOCS (https://www.huridocs.org/). We can always make our data digital (scanned documents, audio/video file, word/pdf copy, etc) and store them in online storage. If we store data online, we do not lose them even if our original source was taken by security forces or damaged by natural disasters."
 
Here is some additional information about each of the tools designed for human rights documentation that were shared during the "Working Safely and Effectively with Documentation Tools" conversation:
  • OpenEvSys is a free and open source database application developed by HURIDOCS and is built on the Events methodology for recording violations and the “who did what to whom” data model
  • Martus is a secure information management tool developed by Benetech that allows you to create a searchable and encrypted database and back this data up remotely to your choice of publicly available servers. The Martus software is used by organizations around the world to protect sensitive information and shield the identity of victims or witnesses who provide testimony on human rights abuses.
  • CaseBox is designed to support the needs of litigation for NGOs looking for an integrated and web-based application to manage their caseload. This tool is flexible enough to be used for any kind of case-management. Built by HURIDOCS
  • RightsCase - RightsCase helps you to securely record, collate and analyse information and evidence of past and ongoing human rights violations. RightsCase allows you to access meaningful statistics through visualisations of collated data. Built by eQualit.ie
  • Ushahidi is a data management system that rapidly collects data from the crowd and visualizes what happened, when and where.
  • Corroborator is intended to help journalists, researchers and civil society activists cope with modern large scale data. It is designed to help analysts create verifiable chronologies of events (Incidents) based on information submitted from a multitude of sources (Bulletins). Built by eQualit.ie
It would be great if others have had experience using any of these tools and if you felt that the system did provide protection to victims, witnesses and those who were collecting the information as well.
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on documentation

Human Rights organisations that work in the area of civil and political rights do a large amount of documentation and dissemination.  Odhikar and Ain O Salish Kendra bring our monthly reports highlighting the situation of human rights abuses.  Unfortunately, in 2006, the then government passed the Information and Communication Technology Act, which was ammended by the present regime twice - in 2009 and 2013.  This law has many sections - but only one is used - the notorious section 57.  This section provides punishment for those who upload any false or fabricated reports or reports demeaning the government or law enforcement or any information that may disrupt public peace, etc, etc...The penalty is between 7 - 14 years imprisonment and a heafty monitory fine. The offense is non-baliable.  Bloggers, facebook users (who have liked or uploaded comments/cartoons critical of the PM or her family), human rights defenders and journalists have been persecuted under this law - some are in jail pending trial. This means they are incarcerated while the date for trial keeps getting 'delayed' or documents being 'prepared' or because bail is not ordered.  Odhikar's Secretary was charged under this Act for a report we uploaded on human rights violations at a public rally in May 2013.  The arrest was in August 2013.  It was more of an abduction as it took place at 10:20 pm, on a holiday and infront of his family.  The people who took him were not in  uniform and refused to show any idetification.  They did not have a warrant.  He is out on bail after 62 days in jail. A few weeks after his arrest, the Director of Odhikar surrendered before the court.  He spent 26 days in jail and is out on bail.  He was charged with the Secretary. The Odhikar office was raided and laptops and computers taken away.  There was a vicious media campaign from pro-government print and electronic media as well.  The lower courts gave the detained men no relief.  Every order in their favour had to be taken after appealing to the Hight Court.  Even then, the authorities deliberately dragged their feet before implementing the orders.  For example, the Secretary of Odhikar had to spend an extra day in jail custody as the bail order - which should have taken a maximum of 3 hours to reach the prison- got there a day and a half later. Due to this notorious law and the persecution and harassment, human rights defenders have become very careful about uploading and dissiminating information.  As I said, the space is shrinking from all sides. Odhikar still disseminates information and data to the SR on relevant mandates and sends information to its international networks for dissemination by them. It continues to maintain its website.  All human rights organisations have become extremely cautious after this incident.  Yes, we have been branded 'anti government', 'traitors', 'anti-liberation'...all terms used by a repressive government.  I have been told by some, that I should be ashamed of airing my country's negative sides to the world.  This is expected. The majority still think that the death penalty is a good thing and that things are now better as there are no political strikes or violence. It is difficult to explain human rights to those who will only understand when it affects them.

Lutz Oette comments

Agree with LUTZ OETTE on the problem of impunity that persists, in part, in settings devoid of the political will to tackle it.    In Afghanistan, the situation was/is further complicated by the role of outside actors (US, NATO allies) in perpetuating impunity, and its links to the prevailing political patron-client culture. In my experience, there needs to be a clear strategy that, for example, includes a two-pronged approach focused on the immediate issues at hand and the long term transformation required.  

In terms of the immediate, being dependent on external political clout does present problems and, as you indicate, runs the risk of HR activists being branded traitors, antagonistic to local values and customs … as happened in Afghanistan where HR work is mostly ‘projectized’ and greatly influenced and informed by experience and perspectives garnered in Western settings.  However, in an acute war-torn environment of great insecurity and lawlessness, one is rarely operating in a win-win situation. It is often necessary to make calculated decisions that take account of the immediate dangers faced by HR victims or HR activists.  In Afghanistan, networks were crucial both in terms of providing an ad hoc safe house alternative and in challenging local strongmen responsible for threats and violence via contacts in Kabul, the capital,or elsewhere. On a few occasions, fleeing to another location within the country or to another, mostly neighbouring, country were options pursued by those at risk using their own means or with the help of recognized entities.

Overall, given in part the protracted nature of the war in Afghanistan, there was a reasonably good understanding of warlord and other personalities who were abusive and antagonistic to HR values. The national and international media played an important role in highlighting individuals as well as patterns of abuse and the circumstances in which this occurred.  The media (and HR reporting) also highlighted the implications of such abuse for those directly concerned as well as the relationships (for example between a particular well known abusive personality/entity and US/NATO mechanisms) and networks that sustained predatory and abusive power holders.  In sum, in countering impunity and all that goes with it, there is no magic formula but, rather, a long hard slog that requires sound analysis, strategic thinking, reliable networks, the use of evidence in a manner that maximizes leverage, stamina and perseverance.

Need reform of society and institutions for effectiveness

India has one of best constitution and Human Rights institutions but system and implelmentation are agaisnt poor, Dalit,tribal,minority and dissents. Main reasons are colonial legacy of many rules related to police, prison and mind of caste.

Mind of caste and patriarchy is creating culture of silence against survivors, witnesses and Human Rights defenders.  So it is important to reform the society along with reform of institutions for effectiveness. My case is a classical example of that. Please find link:

https://www.saddahaq.com/mysterious-silence-of-nhrc-in-my-case-testimony...

Effectiveness of Protection Mechanisms

Thanks everybody for the great conversation already going on!

As a leader of one of the few organisations lead the fight against torture in Kenya, i feel that this conversation has come at the right, especially in relation to the protection of victims, survivors and witnesses in torture and extra-judicial investigations. Torture and other forms of ill-treatment including extra-judicial executions are mainly perpetrated by police officerrs and other munical law enforcement officers in ordinary law enforcement processes. The main victims and witnesses in such cases being young men aged 18years to early thirties, mainly from poor rural and urban neighbourhoods. Due to thier low socio-economic circumstances they are already vulnerable to abuse by law enforcers, while these violations lead them deeper into vulnerability.

Though the government has set up some protective mechanisms for witness under the National Witness Protection Agency, this has not been adequate to protect victims who are sometimes witnesses in their own cases as well as other witnesses, due to various challenges. While the agency has endeavoured to retain highly confidential and professional operations, they unable to cope with tghe many cases. Sedondly, inadequate coordination between the various criminal justice agencies has largely exposed victims and witnesses to further violations and in some cases elimination by suspects. A case in point being last year when a police officer was charged with murder but due to the delay in arresting and aligning the officer in court, one key witness was eliminated. Worse still, the officer has been granted cash bail further jeopardising the lives of other witnesses.Thirdly, since most of the perpetrators of torture and ill-treatment are government officers, there is a deficit of trust between the victims and witnesses and the government protection agency.

Question: Do we have similar agencies in other jurisdictions? Do they face similar challenges? If so, how do they address these challenges?

 

Video speaks truth about Indian police

I posted a video about behaviour of Indian police

ACT on the case, do not GIVE UP!

This is interesting to follow the conversation on the effectiveness of the protection mechanism for survivors and witnesses. I have similar frustrations from Nepal as Bangladesh and Maldives.

I completely agree with points made by Jo-Anne Prudhomme, Norah Niland, Tobby Kelly, Lutz Oette, Nancy Pearson, Peter Kiama and Lenin Raghuvanshi. Very important issues have already come up such as strengthening the overall criminal justice system, documentation of issues, networking and intervention from international community.

I want to share my experiences working with suriviors and witnesses. In Nepal, the available protection mechanisms are neither working properly nor effective for the protection of survivors and witnesses. The protection mechanisms are not effective in most of the countries where state mechanisms and rule of law are not functioning well. However, we can see changes slowly when we ACT!

In Nepal, we started from 'DOCUMENTATIN' of issues/risks which has already been brought up by Lutz and Nancy in the discussion above. When we document the cases properly, we have to COMMUNICATE or/and LITIGATE. However, we have to be very conscious on 'when, where, to whom, and what to communicate'. The case can be communicated or litigated at national and international level including UN depending on the severity, urgency, etc.

It is very important to KEEP IN TOUCH with the survivors or witnesses always. Once the case becomes public, the survivors or witnesses become more vulnerable. However, we have to constantly FOLLOW UP the case, and then UPDATE to the institutions or authorities where we had communicated before. This process may repeat several times.

Do not GIVE UP the case. It is better not to start the case if we want to give up later. It is obvious that HRDs or organizations are often threatened when you work in human rights issues in particular civil and political rights. I have also been threatened in few occasions by the state authorities.   

If we follow these procedures, the protection mechanisms slowly start functioning with the pressures from national and international communities.This process really brings the loopholes of state mechanims out in the public. However, we have to be strategic and need strong dedication for the continuation of work. I, therefore, say 'ACT on the case, do not GIVE UP' for the ultimate changes!

You bring up such an

You bring up such an important point. This issue of follow-up is so important to the safety of witnesses and one that is not only missed on the local level, but also on an international level. Research shows that time after time, in the ICTY, Special Court for Sierra Leone, South African TRC, and others that witnesses said they felt abandoned after they gave their testimony. Often follow-up was conducted for some time, but only lasted for as long as the TRC or the case lasted, and then witnesses no longer heard from court staff. 

One of the SATRC commissioners brings up this point, that the SATRC conducted follow-up to the extent that it could, but it only passed through towns and villages for a limited period of time (https://www.newtactics.org/sites/default/files/resources/Walk-Beside-You...). Per our discussion in one of the other threads, this is likely where the role of civil society is most important in filling the gaps that states or international accountability mechanisms fall short. 

In doing human rights work, whether it's documentation, truth, reconciliation, memorialization, or formal accountability, the role of witness/survivors is so crucial and so central. They are the ultimate beneficiaries to the process, and where some mechanisms are falling short, apparently, is ensuring the centrality of that role and leaving the survivors/witnesses behind in the interest of other goals. 

Lack of political will

When a country's Judiciary is not independent, the Constitution amended so that Parliamentarian's decide which judge should be impeached, votes are rigged, criminals are sheltered by local influential politicians, the lower judiciary is in the palm of the Executive, corruption rampant and blatant; and the police are violating rights with unfettered impunity - lawyers are having a very difficult time to actually maintain cases.  Judges in the Supreme Court are being selected and promoted on political will, so justice for political prisoners and prisoners of conscience is becoming extremely difficult to obtain.  Domestic crimes, acts of violence against women, human rights violations - all are due to similar reasons. In Bangladesh, everything has happened based on political party will - not on the will of the people.  Constitutional amendments have not been made for the benefit of the people of Bangladesh.  Nor have 'national security laws'. International human rights norms are ignored - mainly because the international community that is based in Bangladesh is more interested in fighting 'terrorism' and doing trade.  Human rights defenders are still finding ways and means to get information and data to the international forums, but any activity on the ground will not be tolerated. There has always been a serious lack of political will to do what is best for the WHOLE of Bangladesh.......For countries like Bangladesh and other's that have been introduced and discussed in this forum - one has to spend a long time understanding the background to how everyhting came to what it is, in order to understand where we are heading. From where I stand - in Bangladesh today, the future for victims, surviors and defenders of human rights looks exceedingly grim. 

I agree with the potential

I agree with the potential for documentation to act a form of protection, but I also think we need to recognise its limits, and when we use it use it very strategically with specific goals in mind. Often in the human rights community, we tend to think that more knowledge is a good thing, that if we shine a light into dark corners bad things are less likely to happen, and that the more people that know the better. This is surely sometimes the case- and especially when it comes to relatively well connected survivors. But sometimes, the opposite is true. Some research the Morten Koch Anderson at Dignity has been conducting, for example, seems to show that survivors- particularly amongs the urban poor- want simply to turn the light off. They do not want more people to know about what has happened to them, as that might increase the risks that they face. Having little trust in the criminal justice sytstem, they simply want to disapear into anonymity again. Documentation can, in some contexts, make people less safe. The important thing is to know when this is the case, and probably means listening very carefully to the needs and wants of particular survivors. It would be really interesting to hear what Saira in particular thinks about this.

That's a good point. I wonder

That's a good point. I wonder though if there are different approaches to documentation that take both the legal/reporting needs into account as well as the psychosocial/protective factor. Documentation does not necessarily have to feed into legal mechanisms such as accountability proceedings, nor does it have to inform civil society human rights reporting. It can also be done as a way of preserving individual narratives, even if kept completely confidential for whatever period of time the victims feel necessary. While some may choose to remain silent and turn the page, there is some evidence that storytelling, even if privately, is important for individual healing. 

This, of course, brings up who are the best actors for doing such documentation: lawyers? human rights civil society? therapists? a combination? As well as what goes into informed consent and how to manage expectations. But ultimately, I think that's right, the most important thing is to listen to what individuals need and want on a case-by-case basis and not to presume that documentation and accountability are desired by all. 

Reluctance

As I discussed in previous paragraphs, the reasons behind the lack of prosecution and the high rate of human right abuses makes people extremely vulnerable.  Victims are reluctant to talk about the matter as they fear further persecution.  They will not approach legal aid organisations or sue because of this.  For most, this is a part of life. Police are 'like that'.  They cannot afford further harassment. Documentation, however, is useful to highlight trends, expose perpetrators and useful for campaign and activism.  This form of documentation cannot harm the survivors or victim-families, unless they want to campaign and publicise their own issues.However, for human rights organisations, maintaining a list of survivors (with their consent) is useful if they come to further harm or harassment.  However, this also has its down-side. When the government wanted Odhikar's list of victim-families of the May 2013 rally, meeting and ensuing police crack-down; Odhikar refused, stating it would cause harassment, persecution and harm to the victim families.  Odhikar also stated that it would give the list only to a truly independent and impartial inquiry commission, if one was formed to investigate the claims of police atrocities that occured.  A month later, the Secretary of Odhikar was picked up. The Government still does not have Odhikar's verified list.  What it has, is a draft list of  names that came in from our local level defenders, that needed verification by our fact-finding team. The police got this from one of the lap tops they seized. When members of the law enforcement actually went to some of the victim families, the latter shut down and refused to talk.  Some even called us to say they had been threatened by the police and told to say that no one in the family had been to the rally or was missing or had died. All the families in Odhikar's verified list had given their consent to note the name of the victim and the address.  The list is with the international human rights network. The victims families are still in contact with Odhikar staff.  However, they too have suffered to some extent. So yes, in some instances, documentation can make people more vulnerable. However, the victim families are still on our records, as are the families of the disappeared and survivors of torture and violence agaisnt women. If there is any further harassment, we can initiate and international campaign.  For human rights defenders and victim/victim families, visibility and being vocal is a must - with some practical and needful caution depending on the political atmosphere.

 

Civil Society Self-Protection

Saira, your comments about this specific situation are really striking to me because of the need for civil society not only to protect information it gathers, but to also protect its own staff. As others pointed out, there are of course culturally and situationally appropriate times to engage in public advocacy or private advocacy efforts and times when information must be kept fully secret -- both to protect the individuals participating in the documentation and to protect the ability of the staff to carry out its work. 

More broadly, I keep thinking about whether connections to international NGOs provide more or less protection to those documenting human rights violations in situations where the violations are ongoing. The answer may be different in various contexts, but I wonder if there are some sort of 'best practices' on this. And whether there are ways that these external connections can be managed in a way to provide maximum protection. 

On Saira R. Khan and Marie Soueid's comments…

I want to add some specific reflections from my work on documentation regarding the comments made by Saira R. Khan and Marie Soueid.

On Saira R. Khan's Comments: I was directly involved in the documentation of cases of human rights violations in Nepal. Yes, it is always difficult to secure documentations from state security forces or other natural damages. So, what I suggest is to always store them online. There are few secure online database for human rights documentations including 'OpenEvsys' provided by HURIDOCS (https://www.huridocs.org/). We can always make our data digital (scanned documents, audio/video file, word/pdf copy, etc) and store them in online storage. If we store data online, we do not lose them even if our original source was taken by security forces or damaged by natural disasters.

 On Marie Soueid's Comments: I have experienced that the presence or support of international NGOs provide more protection not only to the HRDs but also to the victims of human rights violations and witnesses. The presence of international NGOs especially during the conflict encourage local NGOs to work on human rights. For instance, the presence of Human Rights Watch, Amnesty International, International Commission of Jurists (ICJ), etc, always makes difference in the field by encouraging HRDs, NGOs and survivors. The presence of international community makes positive differences this is what I have experienced in Nepal. However, there are few instances when the presence of international community may have negative impact. 

This reluctance and the reasons should be documented

This resonates what more than 80 HRDs working in different provinces of Pakistan just shared with me! People do not feel safe reporting. Not only that, they feel unsafe when human rights organisation/ activist visit them. Their conclusion is that nothing will happen out of sharing this to HROs or any other persons in that matter, apart from getting more threats. They have no trust in justice system. 

Even more shocking thing to me was the case where a human rights defender has recently been assassinated; even his families feel the same. They did not even want to register a complaint with the detail what they knew about the case!!!

However, this feeling of insecurity among victims and witness for documentation is not the  problem created by documentation per say. This fact itself could be/ should be documented which would be helpful to explain the state of affairs on this matter. 

Thats a really interesting

Thats a really interesting point Toby. The distinction should probably be made between individually focused documentation, and more systematic documentation, intended to shine a light on State practice as a whole.

Documentation doesn't

Documentation doesn't necessarily equate with (immediate) publication or use (in legal proceedings etc.) but even in these cases there is an issue of protection (secure keeping of records) and, as Toby rightly highlights, what survivors (and their families) decide they want - or  indeed don't want.

Useful posts by Toby Kelly,

Useful posts by Toby Kelly, HumRtsMarie, Daragh Murray, and Lutz Oette that among other things underline the importance of engaging with, and respecting the views of, those at the receiving end of HR violations.

The purpose of documenting incidents or patterns of abuse should, in principle, determine how it is undertaken and used. In Afghanistan, a programme with the puyrpose of reducing the direct impact of war on civilains was initiated in 2008. It involved systematically examining and documenting incidents involving civilain casualties. Analysis of such data was used in private and public advocacy in a manner that obliged/convinced different sets of warring parties to take notice and, subsequently, action such as changed tactics in the use of IEDs (Improvised Explosive Devices) and airstrikes so that the rate of killing did not keep pace with increaces warfare.

See link for a study "The UN and Casulaty Recording: Good Practies and the Need for Action", by ORG (Oxford Research Group)

http://oxfordresearchgroup.org.uk/publications/briefing_papers_and_repor...

In sum, documentation for evidence-based advocacy or judicial purposes will necessarily involve different approaches including in terms of content and end use to achieve useful outcomes.

Documentation and wider 'Advocacy Strategy'…

The discussions on 'documentation' and effectiveness of protection mechanism continued by Toby Kelly, HumRtsMarie, Daragh Murray, Lutz Oette and Norah Niland are very important.

'Documentation' of case is just a beginning and important step if we want to proceed for the intervention. As I stated above, the disclosure of information is very sensitive and situation specific, and always not necessary.

However, the documentation helps us to analyze the 'trend of cases' and also helps us to prepare wider 'advocacy strategy' to deal with the security concerns of survivors and witnesses.  When situation arises, we must approach the national and international authorities for the intervention with the help of documentation.

It is also important to approach the available protection mechanisms using our different approaches to test the effectiveness and responses of these mechanisms. The discussions can be continued on what we really expect – a new independent protection mechanisms or strengthening the available mechanisms for the protection of survivors and witnesses!

 

 

Documentation,local action and broder advocacy

The discussions on 'documentation' and effectiveness of protection mechanism continued by Toby Kelly, HumRtsMarie, Daragh Murray, Lutz Oette, Norah Niland and Kamal Pathak are very important.

Documentation is most important but we need to promote processes for elimination of locust effect of fear and phobia through psycho-social and legal support to survivors and witnesses. For us, survivors are central of our multi-dimensional & multi-layer local action along with advocacy. 

National human rights institutions

National human rights institutions

I know in many of our countries we have issues with the politicisation of the National Human Rights Institutions and how weakened that they are but these NHRIs are different than any other national institution as they have to observe certain standards (known as Paris Principle). Accordingly, International Coordinating Committee (ICC) scrutinises their effectiveness and the independence and determines their accreditation and status that they have. This status also determines their space in human rights mechanisms. Many governments do use NHRI (their status in particular) to show how good that they are in protecting human rights that they have NHRIs with A status!!! Can we also explore when ICC determines the status of NHRIs, they also look the effectiveness of NHRIs in protection of victims and witnesses as an indicator? This could be leverage for NHRIs also the pressures to be mindful of the protection issues!

International focus

I think in the South Asian context, international human rights networks have been very supportive of human rights defenders and highly critical of human rights violations. It is the constant watch they keep that helps HRDs stay visible and safe. Organisations like OMCT and the Observatory for HRDs, the FIDH and Human Rights Watch are very active monitoring this part of the world and work with regional networks too. They are also good at shaking foreign governments awake to the violations.....especially those having strong human rights mandates. If HRDs are not safe, the survivors and victim families loose their voice.

I agree with Saira on documentation and role of INGOs

I fully agree with Saira on the role that international NGOs can play in helping CSOs in maximise the impact of the documentation work. I also agree that documentation does not equate immediate denunciation. I would like to share our experiences from Nepal where human rights documentation contributed significantly in paving -grounds for wider political change and improving the situation of human rights significantly.  

Nepal experienced armed conflict from 1996-2006. Nepal’s situation was largely unknown to outside world despite thousands of cases of enforced disappearances, torture, extra-judicial killings, forced recruitment, abduction and displacement..... Advocacy Forum (AF) started systematic documentation since 2001, focusing on 5 certain categories of violations (torture, enforced disapperance, extra-judicial killings, sexual violence and child recruitment). AF was not able to share many of these information nationally or publish it under its name at that time, as they could not risk its work and their staffs.

At that time, AF partnered with international organisations such as Amnesty International, ICJ, HRW etc… in validating it, disseminating it, and doing advocacy at international level to galvanise international pressures against Nepali government, which was largely responsible in many of these vioaltions. Our documentation also exposed and pressured then rebel group, which was struggling to get international legitimacy as the insurgent not as terrorists! The involvement of international organisations made international community, including the UN to take the issue seriously. No matter how good national organisations are in doing the work on the ground, they do not have the same voice, clout and leverage when it comes to international advocacy! That’s why the partnership is essential as many of these international organisations do not have access to information to the extent CSOS have and also grasp of the local situations unless they have CSOs working with them.Unless they have the partnership with CSOs, their advocacy also lacks substantive elements.

Objective of AF at that time was to mitigate information gap, have international scrutiny on human rights violations that was ongoing in Nepal. In 2002, no one thought international human rights monitoring mission was going to be possible in Nepal considering the geo-politics and roles that powerful states were playing in supporting Nepali state at that time.

However, through the systematic documentation, (largely from Advocacy Forum Nepal), it established how international support was being used in human rights violations, making those countries suspending the military aid at later stage.

The systematic submissions of cases to different UN mechanisms made it possible to bring Nepal on the agenda. Cases submitted before the UNWGEID, led UNWGIED coming with the report stating that they received the highest number of new cases of enforced disappearances from Nepal in 2004, UN Special Rapporteur on Torture was also alarmed by the situation because of the extent and volume of cases that it had received from Nepal, many other special procedures were having the similar reports. Their reports and subsequent visits to the country helped us to bring our situation known to outside world and galvanising support in our call for international human rights monitoring mission in Nepal.

Information that we provided to international organisations also made these international organisations put Nepal under their priority, they came up with their own reports. Thus, reports on  Nepal were discussed in different parliaments and EU, eventually making the impossible possible: having one of the largeness UN Human Rights Monitoring Mission in Nepal. At that time, it helped significantly in reducing the cases of human rights violations on the grounds and improving the sense of security among the human rights activists, victims and witnesses.

Of course, I am not saying that UN monitoring mission is the solution to every situation but once we know what might work on the ground, we can use the documentation towards achieving that. Documentation is the greatest tool and weapon that human rights organisations/ activists have in advancing their cause and protecting victims and witnesses.

HR Nepal, documentation and ...

Thanks Mandira for this useful summary of the Nepal experience and, importantly, the protective outcomes achieved.  Have other factors that contributed to reduced HR violations being identified?

I agree that evidence-based advocacy is an important tool in advancing protection but assume outcomes in different contexts vary considerably.  There was no shortage of insights, for example, on the policies and practices leading to the high death toll in Sri Lanka during the end stage of the war.  The inhumanity of the Syrian crises is equally well known.   In sum, mobilizing the leverage necessary to change facts on the ground is an uphill and not always successful struggle in many settings.

Yes, there were other factors... still documentation was the key

Yes, there were other factors too.

Another factor was our carefully crafted litigation strategy, organising victims groups and coordination among organisations. For example, AF initiated mass litigation in the midst of conflict when no one felt safe to bring cases, especially where Nepal army was involved. Once we collected evidences on large number of cases of enforced disappearances, we started filling mass petitions challenging arbitrary arrest, in-communicado detention and disappearances in the military barracks using writs of habeas corpus. Writ of habeas corpus was not suspended even in state of emergency and that was the only remedy that we had. Enforced disappearance was not (still not) a crime in Nepal, so there was no possibility of bringing any other cases.

Initially, it was not possible for family members to bring such petitions, so we as an organisation started to do that, without exposing any member of the family. Those family members who were under pressures (we suspected many would come under such pressure and that was the case) to retract information would actually point to us being the responsible one in bringing cases and they had nothing to do with the petition filed. By this, we were able to lift the burden from the shoulders of family members. We felt we were better protected than any other family members of victims. This goes back to the earlier discussion where we discussed about reform of criminal justice system. One way of protecting witness and victims is also giving locas standi to general citizen in bringing the incidences of violations to the notice of the investigating authority, and making authority responsible for the investigation on such petitions.

The other area was helping victims to organise, facilitating number of group meetings, so they know, meet each other and looking after each other. These smalls groups in local villages later on emerged as national victims association, raising their voice on their own. 

Of course, we were also not that safe either but our strategy was to involve larger legal community. If you see some cases of habeas corpus of that time in Nepal, you would actually see hundreds of lawyers being the lawyers involved in the case. This way, we made it impossible for authority to target any particular lawyer or organisation as there were so many of them doing the same thing.  

As it was difficult to monitor the cases and the security concerns aftermath of the cases at the district level, we brought all our cases to the Supreme Court where we could mobilise larger community and get wider coverage and network of support. I would argue, this strategy of habeas corpus helped significantly to expose the incidences of enforced disappearances and contributed largely to its reduction.

Other aspect was the support from diplomatic community. We found some of the embassies being very helpful in protection issues. I still remember some diplomats at some embassies, offering shelters to these lawyers/ activists when they were in need of escape for some time. When their blue plated cars kept coming to some organisations, that itself work as protective measures for many working in that organisations as this would be seen as signaling to the authority that international community pays attention to the work of these organisations. These are small things but made hug impacts in boosting the morale and confidence of HRDs and victims. I know these sorts of things could be sensitive for some countries but in the context of Nepal we knew it would work and it worked.

The donor supports to this work of course was another big thing. If these types of works are not the priority ‘projects’ for donors then this wold not have been possible. How donors make decision which 'projects/ programmes' to support is also important to the protection issues. 

There were two other strategies that we used which were instrumental but many might find it sensitive so I am not posting it here but if any-one is interested, I could share bilaterally.

 

FASCINATING, thank you

FASCINATING, thank you Mandira

Finding allies for support

Mandira, Thank you for sharing this experience. I was particularly struck by the aspect of the support gained from the diplomatic community. You stated:

We found some of the embassies being very helpful in protection issues. I still remember some diplomats at some embassies, offering shelters to these lawyers/ activists when they were in need of escape for some time. When their blue plated cars kept coming to some organisations, that itself work as protective measures for many working in that organisations as this would be seen as signaling to the authority that international community pays attention to the work of these organisations. These are small things but made hug impacts in boosting the morale and confidence of HRDs and victims. I know these sorts of things could be sensitive for some countries but in the context of Nepal we knew it would work and it worked.

 Evaluating the country context for exploring this avenue of additional protection support is critical. Given your experience, it is definitely worthwhile to make that exploration regarding what diplomatic ties provide the best leverage for providing protection support. 

Have others been able to engage the diplomatic community in your protection efforts?

Members tagged in this comment: 
In my view, it depends on the

In my view, it depends on the purpose of documentation and how HROs use the documented evidence. It seems to me that  ‘protection’ is rarely the main purpose of documentation.  In the current structure of human rights documentation, bringing about changes through political advocacy seems to be a key priority for human rights organisations. 

Public/Political Advocacy

Jeevan, i agree that mobilizing public opinion and tackling the politics that drive patterns of HR violations are often an importnat part of an overall strategy to bring about change that enhances protection and respect for human rights.

Looking at the rich

Looking at the rich experiences shared over the course of this week, there seems to be considerable scope for empirical research with victims, witnesses and those acting on their behalf to understand protection in its various settings and evaluate the effectiveness of strategies, including by developing conceptual tools to enable actors to do so. Such research, and I would be keen to learn about relevant studies, would be useful/could be used not only to inform protection strategies but also policy making and the development of obligations and specific protection mechanisms.

Protection of victims and witnesses

I followed this interesting discussion about the protection of witnesses and victims, the role of documentation and the existed regional and international mechanisms.

As Sudanese lawyer, I worked on torture for more than ten years in Sudan and recently on Libya. I would like to bring the perspective of Sudan to this discussion.

Torture is prevalent in Sudan on daily practices since 1989. The security forces and police are enjoying wide powers and immunities. Victim of torture unable to bring cases against perpetrators either because of threat and retaliation or there is no access to justice. Torture is uses by police in Sudan to coerce detainees to confess commission of crime, this practice is connected with lack of training, resources and poor investigation’s technique, this could be described as traditional set of torture which peoples are able to challenge. The new set of torture is introduced by National Security and Intelligences Services (NISS). This form of torture by NISS does not follow the traditional definition of torture as pain inflicted by officer for confession. NISS basically purport to destroy the dignity of the community specifically targets political dissidents. This form of torture happens in closed NISS forces premises where detainee kept incommunicado.

Torture by NISS in Sudan represent ideal situation and pattern of the state sponsored torture.  Reforming the criminal system is impossible without political will.  I agree here with Norah “that mobilizing public opinion and tackling the politics that drive patterns of HR violations (Torture) are often an important part of an overall strategy to bring about change that enhances protection and respect for human rights”.  

I agree that documentation may not aim to protect but in fact documentation can ply deterrent perpetrators could not practice torture in public whatever official cover he enjoy. General documentation and documentation for litigation purposes are very effective in sending strong message to the torturers that what they have done would not go unpunished.

challenges

maybe the chllenges is not just documentation but what to do with the information? If all this is a matter of political will (what that might be), or lack of it, then documentation is about influencing political will for positive changes? Protection is to bring about the information and give voice to the peoples negated by oppresive governments, impunity, corruption and politised legal systems. In this work, it appears that colllective protection as mandiura describes worked to bring about some change and at the same time it includes empowerment, self-organisation, sense of sameness and togetherness as survivors and activists etc. How do we show the connect between people organisation and larger political changes?  

Strategic use of information+linking the efforts

Good point. I have realised that one of the gaps in this field is insufficient research/documentation on many national/grassroots initiatives to understand how that contributed in brining social changes, improving human rights situations among others. I know there are some reports but they are not sufficient. We need to document in a way that warrants the attention of academia, international intellectuals and political actors that devise global policies on some of these issues.

Many of the interventions that activists designed are not actually designed to show the impact (the way we think). Changes are there but who will document/ research that is a question. Activists have invested long period of their time devising, testing, reforming their strategies. Over the period of time they might also have developed the skills and knowledge to figure what interventions worked and what did not. However, they are not able to articulate, write, deliver in a language, style and content that would call the attention of academia and intellectual circles.

I must say there is a dearth of work linking academia to grassroots activists and vise versa. What methodologies would work, I have no idea. But I firmly believe the link must be there!

Mesuring Results

Agree with Mandira – learning how to measure and articulate change, either positive or negative, is overdue in HR activism.   Identifying precise objectives and related indicators (for exampple, in health care, level of vaccination coverage will help determine child morbidity and mortality rates) that are monitored and analyzed over time will assist in measuring real time outcomes and significant variables in relation to same.

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