Citizenship and Human Rights

One of the most salient legal challenges for European society today is the protection of Human Rights Defenders (HRDs). The lack of explicit protection at the European level poses a significant obstacle to their work, leaving them vulnerable to attacks, discrimination, and cyber threats. While the United Nations has well-developed legal doctrines and mechanisms for defending HRDs, Europe lags behind in this regard. This disparity must be addressed to uphold the principles of European citizenship and ensure the progressive commitments we have made.

“Citizenship” may have contested definitions, but few would deny that it involves solidarity and a shared defence of community interests. The presumptions and implications of citizenship are proactive: idle acquiescence to governments’ and law enforcement agencies’ defence of shared interests is not citizenship, not even of a passive kind. Identifying human rights violations that affect others and seeking redress is integral to solidarity, and delegating the vigilant protection and progressive expansion of community interests isn’t, theoretically, the task or privilege of governments. Citizenship is about norm-setting as much as about enforcement, even if the latter is largely left to elected representatives and delegated agencies. Thus the political notion and practice of citizenship has a lot in common with a seldom linked legal category, that of HRDs.

HRDs make use of their own human rights, including access to justice, freedom of expression and information, as well as freedom of association, to defend the rights and freedoms of others. These men and women embody the essence of European citizenship, which places human rights and fundamental freedoms at its core, as is clearly highlighted in the Treaty on the EU.

Europe, throughout its history, has experienced the darkness of oppression and the devastation of war. These experiences have served as a catalyst for the development of a collective consciousness that values and safeguards human rights. In the aftermath of World War II, Europe emerged with a renewed commitment to protect the inherent worth and dignity of every human being.

European citizenship is not merely a legal status; it is a set of values that binds us together as a community. It goes beyond national boundaries and transcends cultural differences, uniting us under a shared commitment to human rights and social justice. HRDs are the vanguards of this vision, reminding us of our common humanity and our responsibility to protect and promote the rights of all individuals.

For Just Access’ motto we chose “Everyone can be a human rights defender”. National, EU and UN human rights mechanisms are supposed to be accessible to everyone without special legal or administrative training and, as the ICC and others praise and acknowledge, the age of “citizen journalism” has evolved toward open-access criminal investigations by volunteers that stand up to the highest forensic standards. The next step must surely be protecting better those who seek to protect others.

The UN’s legal doctrines and practical mechanisms for defending HRDs are reasonably well-developed. There is an active and responsive Special Rapporteur for human rights defenders, and a separate mechanism for reporting reprisals against HRDs. Several regional human rights systems have also appointed a Special Rapporteur on Human Rights Defenders, for instance the African Commission on Human and Peoples’ Rights and the Inter-American Commission for Human Rights. By contrast, Europe has no protection for HRDs. There is a reporting apparatus administered by ProtectDefenders.eu¹, a consortium of 12 NGOs, and the EU Human Rights Defenders Mechanism is supposed to provide for a dedicated EU emergency fund. The first has no enforcement powers and the second can grant up to 10K EUR to HRDs in trouble. Neither issues a respected or pioneering body of reasoned, let alone binding, legal decisions.

The European Parliament adopted a resolution three months ago on the EU guidelines on human rights defenders². These guidelines, which were firstly adopted in 2004, are based on the need to provide practical suggestions for enhancing EU action in relation to this issue, and they refer to it as a long established element of the European Union’s human rights external relations policy. As the European External Action Service (EEAS) highlighted, the EU Guidelines have confirmed that HRDs are our natural and indispensable allies in promoting human rights and democratization in their respective countries. The EEAS points out that support for human rights defenders is probably the most visible of the EU’s human rights activities, as it has a direct impact on individuals.³

One Article of the guidelines which is of notable interest is Article 14, which calls upon States to provide “…swift assistance and protection to human rights defenders in danger in third countries, such as, where appropriate, issuing emergency visas and facilitating temporary shelter in the EU Member States”. This was the start of what would become the so-called Shelter City initiative, whereby HRDs would be welcomed in European cities for a limited period of time in order to rest and take a short break from their difficult situation. This program, which was actually initiated by a Dutch NGO, still faces many challenges, such as the lack of resources, the identification and assessment of at-risk HRDs and most importantly the reintegration of HRDs after their temporary stay in a shelter city.⁴

What is noticeable in the guidelines is, still, the lack of a proposal for a binding mechanism for the protection of HRDs. The guidelines emphasise the importance of the UN special procedures, instead of providing for an efficient solution at the european level.

The European Parliament itself referred to the “essential interest that the EU and its Member States have to support and protect the activities of HRDs”⁵. It referred to the fact that the implementation of the Guidelines by the EEAS, the Commission and the Member States has been uneven, focusing mainly on reactive measures, lacking consistency in the overall implementation of the strategy and characterised by insufficient visibility of EU action and channels of support for HRDs.

The lack of protection is not an abstract problem. Just Access has defended victims of human rights abuses in highly sensitive cases, and suffered a series of cyber attacks in return. We reported them to the German police, who found them credible and serious enough to open investigations. Cyber attacks were also conducted against our Director. We reported the attacks to the Special Rapporteur, and in May 2023 three UN Special Mandates, the SR for HRDs, the Working Group on Arbitrary Detention, and the Special Rapporteur on freedom of opinion and expression, published a strongly worded Regular Opinion in our defence⁶. In this opinion, the Special Rapporteur showed their deep concern at the intimidation and cyberattacks to our director, which appeared to be directly linked to his legitimate work as a HRD including his cooperation with the UN and its mechanisms in the field of human rights. The Special Rapporteur further expressed their concern about the chilling effect the alleged intimidation, cyber-attacks and breaches of privacy rights can have on the right to freedom of expression, including the freedom to seek, receive and impart information. However, it was not the first time that the Special Rapporteur expressed this concern.

Though strangely no relevant statistics exist, anecdotal evidence suggests that we are not exceptional in this regard. At UN side events and NGO interactions at umbrella organisations we’ve joined, such as the CICC, the OSCE Network or UNCAC(convention agasint corruption), during breaks, between sessions, and in the course of interviews for our podcast series, we hear NGO officers and colleagues telling us over and over and over again that they suffer from discrimination, cyber attacks, aggression and bias in ways that fully and directly violate applicable international law. Yet there is nothing they can do at the EU level.

The GDPR is a marvel of progressive privacy protection that the UN, the US, and others admire and follow. By contrast, HRD protection in Europe is bleak. As HRD activities are increasingly democratised, the legal definition and scope of HRD protection must be improved, lest we lose the spirit and renege on the progressive commitments of European citizenship.