MANUAL ON HUMAN RIGHTS MONITORING : UNITED NATIONS, PART 1

This chapter is intended to provide practical guidance on the protection of persons who come into contact with HROs in the context of human rights monitoring and fact-finding activities (hereinafter: cooperating persons), and who may face threats or be subjected to reprisals as a result of that interaction. The focus of this chapter, and of the Manual, is on activities carried out by HROs working in human rights field presences. However, it is important to note that the principles and many of the approaches described in the chapter may also apply, mutatis mutandis, to the work of other international human rights monitoring mechanisms, including special procedures of the United Nations Human Rights Council, international commissions of inquiry, fact-finding missions and country visits by the human rights treaty bodies.

For the purposes of this chapter, persons cooperating with human rights field presences may be:

  • Victims, witnesses and sources of information on human rights violations;[1]
  • Persons providing assistance to HROs in the course of their human rights monitoring and fact-finding activities, such as human rights defenders or staff from local civil society organizations;
  • E mployees of the field presence, including national human rights officers and assistants, interpreters, drivers and other national staff;[2] and
  • Persons who are at risk by virtue of their association with a person belonging to any of the groups described above, such as family members or friends.

In this context, protection refers to the application of all measures that can contribute to preventing or minimizing the risk of harm and/or reduce any threats that can jeopardize the life or physical integrity of cooperating persons and/or stop harm being inflicted on them. Protective measures include both measures taken to prevent placing a cooperating person at risk (preventive) and those taken when such a person faces a threat or is subjected to reprisals (response).

Ensuring protection is a shared responsibility of:

  • The duty bearers, primarily States and armed groups, which have the obligation to respect, protect and fulfil human rights norms and standards;
  • The victims, witnesses and other cooperating persons, who may face threats or be subjected to reprisals; and
  • Those who can positively or negatively influence the safety and well-being of cooperating persons at risk, and directly or indirectly strengthen their protection (e.g., field presences, human rights mechanisms, diplomatic missions, multilateral institutions, non-governmental organizations (NGOs)).[3]

State responsibility to protect: the State bears the primary responsibility for protecting the rights of all persons under its jurisdiction. Therefore, any victim, witness or other person cooperating with a field
presence has the right to be protected from threats and reprisals, and to have his or her inherent dignity respected at all times. Any person whose rights are violated must be able to obtain redress through competent national judicial, administrative or legislative authorities.

When a State is unable or unwilling to protect its population against a situation of violence that threatens the life and security of its members, or is the perpetrator of that violence, the protection of the population may become a shared responsibility. This responsibility may be assumed, in part or in whole, by the international community, in partnership with that State, alone or sometimes against it, within the limits of internationally agreed safeguards.[4]

Individual responsibility for self-protection: in many instances, individuals make their own choices about which risks they believe are acceptable or unacceptable vis-a-vis the actions they consider important to take. Such an assessment is personal and evolves over time; it is mainly based on subjective perceptions, the ability to analyse the surrounding political, social and security environments, and estimates of the potential consequences.[5] If duty bearers and other actors have limited means to protect them effectively, it is essential for individuals to adopt strategies to prevent and/or minimize the risk of harm they may be exposed to in a given situation and primarily rely on themselves for their protection.

Human rights officers’ professional responsibility to do no harm: the mere fact that a field presence is based in a country may affect public perception of safety and lead individuals to take actions they think are safe. However, they may miscalculate the risk and suffer harm as a result. HROs have an institutional and professional obligation not to put in jeopardy the life or security of cooperating persons and to assist in protecting them if they face threats or are subjected to reprisals for having cooperated with the field presence or for being suspected of having done so (see sect. C below).

  1. Guiding principles

n Respect for confidentiality

Respect for confidentiality is fundamental. Any breach of confidentiality can have serious consequences for the person providing the information or for those implicated, for the credibility and safety of HROs, for the confidence enjoyed by the field presence among the local population and for the effectiveness of its human rights work.

The field presence should have a clear policy on confidentiality, which should be widely disseminated to all HROs and support staff. The policy should include the following:

■ All victims, witnesses and other persons cooperating with the field presence have to be informed of the policy on confidentiality before being requested to provide information on human rights

dents or cases of individuals facing threats or harm because of their interaction with HROs;[6]

  • Confidentiality covers the identity of the cooperating person and the information provided (including audio and video recordings, photographs and other types of documentation), unless specific consent has been given for their use;
  • Confidentiality with regard to individual protection cases also covers information on the protective measures taken, including any support given by partners external to the field presence to strengthen the protection of a person at risk. This is essential to guarantee the safety not only of the person who benefited from the measures, but also of others who may benefit from them in the future;
  • Victims, witnesses and other cooperating persons have to give their informed consent for the use of the information they provided to the field presence. HROs have the obligation to make them fully aware of the potential implications of that decision for their safety and well-being. The consent has to be specific: e.g., consent to report information only internally within the field presences; to report information publicly with or without revealing the identity of the source; to transmit information to the United Nations special procedures or other human rights mechanisms; to raise the case with the authorities; or no consent to take action on the individual’s behalf. When appropriate, consent needs to be sought to forward information to any competent prosecutorial authority (national or international) in the future;
  • With regard to children, persons with disabilities or persons who may not be sufficiently familiar with such concepts as confidentiality and consent, special efforts should be made to ensure that the person understands these concepts and provides informed consent;
  • Even if consent is granted to disclose information to a third party (e.g., national authorities or United Nations special procedures), HROs have the obligation to assess the potential implications of that action for the safety of the person providing the information and of those implicated. If there is a risk of endangering any of them, HROs should not disclose the information or should do it in a manner that removes the risk (e.g., providing information on a general pattern without revealing specific details).

In all cases, confidentiality must be respected regardless of the conditions in which the information was obtained – whether confidentiality was explicitly requested by the cooperating person, was implied or was guaranteed, explicitly or otherwise. If the conditions under which the information was provided are unclear, the identity of the person and the information provided should be considered confidential until specific consent is given for the use of the information.

The safety of victims, witnesses and other cooperating persons must be a paramount concern for field presences and HROs. Accordingly, confidentiality as a measure to protect their safety, with the requirement of not disclosing their identity, should take precedence over other interests, including the prosecution of perpetrators of human rights violations. The principle of confidentiality also applies in the case of requests for information from the national authorities, national judicial proceedings or an international tribunal. HROs have to seek the explicit informed consent of victims, witnesses and other cooperating persons to forward information they provided or to reveal their identity if and when such a request is presented to the field presence.

Sierra Leone

The United Nations received a request to waive the immunity of a former HRO who was called to testify before the Special Court for Sierra Leone. The High Commissioner for Human Rights presented a submission to the Court that confidentiality was vital to the work of OHCHR, which in turn was of fundamental importance to international peace and security, the rule of law and the administration of justice. The High Commissioner argued that the privilege contained in the Court’s Rules of Procedure and Evidence, stating that “the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confidentiality”, should apply in all cases in which an HRO is required to appear before the Court. The High Commissioner also raised concerns about the safety of the HRO if the person was required to testify in open court and the person’s identity became known. The Court accepted that the testimony of the HRO could be given in closed session and that the person should not be compelled to provide information considered confidential.

Source: Prosecutor v. Brima, Kamara and Kanu, case No. SCSL-2004-16-AR73, Appeals Chamber, Decision on Prosecution Appeal against Decision on Oral Application for Witness TF1-150 to Testify without Being Compelled to Answer Questions on Grounds of Confidentiality, 26 May 2006.

Do no harm

In all circumstances and at all times, HROs have an obligation not to jeopardize the life, safety, freedom and well-being of victims, witnesses and other cooperating persons. The best protection HROs can provide to cooperating persons is to be aware of the potential risks of harm and to exercise good judgement, caution and sensitivity in all their interactions. Human rights officers’ lack of care or negligent behaviour, along with a failure to understand the operational context, can put persons who come into contact with the field presence at risk of harm.

Do no harm
While undertaking human rights work, HROs have the responsibility to balance the need to gather information and the potential risk of harm to those who may provide such information. They should always assess whether it is necessary to establish contact with a person who may be placed at risk as a result of that contact. Contact should not be attempted if HROs determine that they will not be able to ensure the safety of a cooperating person, if the risk of harm is too high or if HROs do not have sufficient information to make an informed determination on the level of risk.

When visiting the site of a large-scale human rights incident, HROs decided not to interview witnesses or sources. They had to explain to those who approached them that they could not speak with them because they feared that would expose them to further security risks.

^ Do not raise expectations

HROs should never make promises that they cannot keep. They need to be aware of what they can effectively do, and not do, to avoid putting cooperating persons at risk or to ensure their protection. Upon establishing contact and before proceeding with the gathering of information, HROs have to inform victims, witnesses and other cooperating persons of the limitations of the field presence in guaranteeing their protection. Cooperating persons need to take this into account when deciding whether or not they want to continue being in contact with HROs.

^ Participatory assessment

Victims, witnesses and other cooperating persons are often their own best protectors. They are acutely aware of their security environment and the threats they face, or may be facing, for establishing contact with the field presence. In other cases, however, cooperating persons may not be able to make such a sound judgement because they are overconfident, are in denial or underestimate a particular situation, or simply because they lack information. In any event, HROs must follow a participatory approach to protection by taking into account the knowledge and views of cooperating persons and by involving them in the risk and threat assessment and the choice of measures to be taken to ensure their safety.

I5! Know the local context

HROs need to know and understand the local, regional and national context of the country in which they operate, because protection is context-based and context-specific. There is neither a blueprint nor a single correct approach to dealing with protection concerns or to improving the safety of victims, witnesses and other cooperating persons. The appropriate protection strategy will depend on the political and security environments, the commitment of the national authorities, the national witness protection framework, and the capacity and resources of the field presence, among other contextual factors.

HROs should assess the level of threat and risk of harm to victims, witnesses and other cooperating persons before, during and after establishing contact with them. They need to be aware that certain situations, particularly where there is conflict, can evolve quite suddenly and unexpectedly. It is therefore essential for them to regularly gather relevant information (see previous subsection) that can affect the safety and well-being of cooperating persons. They should review and adjust their human rights monitoring objectives and protection strategies based on this regular assessment.
Regular risk assessment and review of monitoring objectives

[1]      For the purposes of this chapter, a victim is a person who has suffered some type of harm (e.g., physical, psychological or loss of property) as a result of a human rights violation. A witness is a person who, being present when a human rights violation occurred, personally sees, hears or otherwise perceives it through direct experience. Victims and witnesses of human rights violations are considered primary sources. A source is a person who is in a position to provide secondary information, including contextual information, about a human rights violation, but who did not suffer, did not directly experience or was not present when it occurred.

[2]      National staff, who play a crucial role in the work of field presences, are more vulnerable to risk along with their network of family and friends. See sect. E below.

[3]     Enrique Eguren, Protection Manual for Human Rights Defenders (Dublin, Front Line, 2005), p. 13.

On certain occasions, particularly in periods of transition from one political regime to another, the United Nations has temporarily assumed the role of State institutions (e.g., East Timor (now Timor-Leste), 1999-2002).

Liam Mahony, Proactive Presence: Field Strategies for Civilian Protection (Centre for Humanitarian Dialogue, 2006), pp. 81-89.

[6] For the purpose of this chapter, we use the expression “individual protection case” to refer to any situation in which a victim, witness or other cooperating person faces threats and/or is subjected to reprisals or retaliation during and/or after interacting with HROs.

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