Protection of human rights defenders against state persecution

By: Jorge Leyva

The protection of human rights defenders is formally anchored in international instruments that recognise their role in documenting abuses, assisting victims and sustaining the practical operation of the rule of law. This framework is not conceived as a privilege attached to a category of persons, but as a functional guarantee aimed at preserving activities that constrain unlawful exercises of power. When those activities are targeted, the harm extends beyond the individual and affects the integrity of the legal order itself.

State persecution of human rights defenders rarely operates through overt prohibitions. It is more commonly produced through the selective activation of regulatory, administrative or criminal mechanisms that are neutral in appearance but discriminatory in effect. Tax audits, licensing procedures, disciplinary proceedings or criminal investigations, when deployed in a concentrated and predictable manner against those engaged in human rights work, alter the defender’s legal position in ways that impair their ability to operate and expose them to cumulative risk.

From a legal perspective, the decisive factor is not the formal legality of each measure considered in isolation, but the structural pattern created by their interaction. When multiple state actions converge to produce sustained pressure, legal uncertainty and reputational damage, the threshold of persecution is crossed even if no single act would suffice on its own. International protection mechanisms are triggered by effects, not by labels.

The evidentiary challenge in these cases does not justify elevating the standard of proof beyond what the protective function requires. Human rights defenders often operate in contexts where documentation is deliberately obstructed and where retaliation is designed to remain formally deniable. Requiring proof of explicit intent or direct orders misconstrues the nature of the risk and rewards the sophistication of the persecutory strategy.

The legal framework applicable to defenders imposes positive obligations on states. These obligations are not limited to abstaining from direct harm. They require the adoption of measures capable of preventing foreseeable interference by state agents or by private actors acting with acquiescence or tolerance. Failure to intervene where risk is known or predictable constitutes a breach of protection duties, irrespective of whether the harm has fully materialised.

The legal consequence is specific. Where state action or inaction predictably undermines the ability of human rights defenders to carry out their work without fear of retaliation, international protection mechanisms must operate without requiring the defender to exhaust domestic processes that are themselves part of the pressure. Treating such cases as ordinary regulatory disputes empties protection of its substance. The law does not protect defenders because of who they are. It protects them because disabling their work disables the mechanisms through which power is legally constrained.