On April 21, Narciso Beleño, a peasant leader and human rights defender who worked for more than three decades for the restitution of land and the sustainable exploitation of natural resources in Colombia, was murdered. Sadly, this is not an isolated case. According to the most recent report by Front Line Defenders, 79% of the murders of human rights defenders occur in the Americas. Colombia alone accounts for 47% of the deaths of human rights defenders in the world, followed by Mexico and Brazil with 10% and 8%, respectively. Of these fatalities globally, 48% of these individuals were dedicated to defending land, environmental and indigenous rights.

Source: Frontline Defenders Global Analysis 2023-2024

In Colombia, although violence against social leaders may seem indiscriminate, territorial rights defenders are at greater risk. Of 1593 leaders killed since 2016, 20% are indigenous, 15% are peasants and 6% are Afro-descendants. These people had in common that they mobilized around land redistribution, respect for legitimate land tenure and their way of inhabiting it, and the restitution of land that was violently taken from them during the armed conflict. 

However, the outlook is not entirely discouraging. Two recent judicial pronouncements by the Constitutional Court of Colombia and the Inter-American Court of Human Rights (IACHR) have analyzed this phenomenon and, in response, have given legal life to the right to defend human rights in Colombia and the region. This does not imply an automatic improvement in the risk to people’s lives, but it does represent a glimmer of hope on the road to better public policies for the protection of human rights defenders. Not because of the binding nature of the decisions, but because it is a precedent that can inspire the regulation of this right in other latitudes, both regionally and globally. 

The right to defend rights according to the Colombian Constitutional Court

Last December, the Colombian Constitutional Court issued a ruling that recognized, for the first time, the right to defend human rights and ordered measures for its protection. According to the Court, this right has its origin in the 1998 UN Declaration on Human Rights Defenders and in the constitutional rights to life, equality, defense and protection, as well as not to be subjected to forced disappearance, torture or cruel, inhuman and degrading treatment. In other words, it is a right derived from international human rights instruments and from the Colombian Constitution itself.

The relevance of this ruling lies in the fact that it departs from the classic understanding of the guarantees defenders are entitled to. In this case, the Court went far beyond simply recognizing the right to physical integrity, that is, the right not to receive physical harm. In studying the cases of 20 social leaders, the Colombian Court concluded that the State had violated four dimensions of the right to defend rights. First, personal security, which had been previously recognized by the Court and which consists of the right not to cause harm, physical or moral, to the person. Secondly, the right to due administrative process implies that the decisions made by the entities in charge of their protection must be duly motivated. Thirdly, the free exercise of leadership implies the right to exercise the defense of human rights without fear. And fourthly, effective justice, which means that those responsible for acts of violence should be effectively prosecuted and brought to justice. 

This is a pronouncement derived from a coordinated action by 20 courageous defenders representing diverse human rights causes of the peasant, Afro-descendant and indigenous population—among others—who, with the support of human rights organizations, joined together to demand the legal recognition of the Right to Defend Rights. After more than three years of effort to illustrate the problem, the Court recognized the right and gave it specific content, which represents a step forward in terms of the State’s obligations to open democratic space and guarantee the defense of human rights. 

Effective protection requires territorial, ethnic, racial and peasant approaches 

Overcoming the institutional failures that facilitate the violation of the right to defend the rights of territorial and land defenders in Colombia depends on the integration of territorial, ethnic-racial and peasant approaches in public policy. 

The institutional offer of protection that includes bulletproof vests, conventional or armored cars, escorts and panic buttons is insufficient. The problem is that these measures do not work in all territories where mobility is also by rivers and not only by land, or in territories where an armored truck can draw attention to the defender, further increasing their risk of harm. These measures, besides being costly, are designed to protect politicians or businessmen who move in urban areas. They are not adapted to rural contexts where it is difficult to pay for gasoline, the maintenance of a van or the food and hotel of an escort. Hence the relevance of including a territorial approach in the State’s protection policies.

Protection services are outsourced to private security companies that decide the escorts of the protection schemes. Rural communities, especially ethnic-racial communities, have requested that the escorts be trustworthy and understand their way of life and the way in which they defend their rights. There have been many cases in which tensions have arisen between the escorts and the community to which the defenders belong, due to cultural practices that are rejected by the community. The protection schemes are also designed from an individual and not a collective approach, which excludes organizational and community protection mechanisms. This also makes clear the need for ethnic-racial and peasant approaches that take into account different ways of exercising the defense of human rights.

To remedy the situation, the Constitutional Court ordered the evaluation of security measures so that they are appropriate to the context and the performance of the work of defending rights. This implies taking into account geographical, cultural and armed conflict conditions. Some specific measures dictated by this judgment consist of allowing the hiring of trusted escorts for the defenders subject to protection, as well as training processes that allow them to adequately provide security services. They also ordered the State to carry out collective protection in places where the level of risk for the defender population is higher. This opens the stage for the recognition of other protection measures such as organizational and community strengthening through the media, the installation of houses of refuge, prevention and escape routes, among others. 

The right to defend rights according to the IACHR case CAJAR v. Colombia

Only three months after the Constitutional Court decision of the 20 Colombian human rights defenders was announced, the Inter-American Court of Human Rights (IACHR) released its judgment recognizing the right to defend human rights in the case of CAJAR v. Colombia. In an unprecedented judgment in the jurisprudence of the IACHR, the court recognized and established the scope of the right to defend rights through an evolutionary interpretation of the American Convention on Human Rights. 

The Colectivo de Abogados José Alvear Restrepo – CAJAR, is a Colombian NGO dedicated to the defense of human rights since 1980. In this case, the Court condemned the systematic persecution by the Colombian State of which CAJAR has been a victim. In its analysis, it determined the existence of improper activities by intelligence agencies, which handed over sensitive information to paramilitary groups that then violated the rights of members of CAJAR. This created a risky environment for the life and integrity of these defenders, who saw several of their rights violated, including their right to defend human rights. This case is relevant because it makes it clear that the violation does not only come from third parties, but can also come from state agents, hence the importance of exercising vigilance and monitoring of state activity. 

With this evolutionary interpretation of the provisions of the Inter-American Convention on Human Rights, the Court recognized the autonomy of the right to defend human rights. Despite its close relationship with other rights such as the right to life, to personal integrity, to freedom of expression, to freedom of assembly, among others, the Court indicated that it is a right in and of itself. It translates into “the effective possibility of exercising freely, without limitations and without risk of any kind, different activities and tasks aimed at the promotion, surveillance, promotion, dissemination, teaching, defense, claim or protection of human rights and universally recognized fundamental freedoms”.

As reparation measures, the ruling ordered actions aimed at investigating the facts and identifying, judging and punishing those responsible; the implementation of a system for compiling data and figures on violence against defenders; the adaptation of intelligence manuals to comply with international standards and the approval of regulations guaranteeing access to the information collected by the State; among other measures.

Two relevant precedents for Latin America and the world 

The relevance of the right to defend rights lies, in part, in the fact that it is a right and a guarantee on which others depend. It is not possible to speak of the validity of human rights if States do not recognize and protect the possibility of promoting and defending them. These two judicial pronouncements, from the Colombian Constitutional Court and the Inter-American Court of Human Rights, are a beacon of hope on the road to building an enabling and less hostile environment for the defense of rights. Although the first case is directed at an indeterminate group of human rights defenders and the second case studies the violation of the rights of a human rights NGO, both cases present a series of basic measures and guarantees that could guide and increase the effectiveness of existing policies. 

Inspired by these precedents, we trust that States, including constitutional judges, will dare to specify what this right means in each of their jurisdictions. This, taking into account that within the universe of defenders there are substantial differences in the types and levels of risk, as in the case of leaders who defend territorial rights. As illustrated by the case of Narciso Beleño and so many other campesino leaders who have been assassinated. 

The judgments referred to above show us that it is possible to recognize this right based on an evolutionary interpretation of international instruments such as the UN Declaration on Human Rights Defenders or the American Convention on Human Rights, as well as constitutional texts. But, above all, they remind us of the vital force of human rights defenders and organized civil society to achieve a greater commitment of States to the enforcement of human rights and democracy.

* Spanish version published on July 17, 2024, in Agenda Estado de Derecho, Latin American Debates Section.