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When you target powerful interests, especially those linked to security forces or potentially criminal elements, you should take special care to examine the security risks before initiating legal action.
When communities and their advocates challenge powerful economic and political actors, they can face very real physical, social, legal, and financial threats. The targets of legal action do not always “play fair” and let their cases play out in the courts according to the rules. They may try to abuse their position of wealth and influence to threaten or otherwise derail the case against them through legal or extra-legal tactics.
This is not to say that you should abandon legal action in such circumstances. Often the risks involved can be successfully managed. However, everyone involved in the case – community members, advocates, family members – should be aware of the risks and take concerted action to mitigate them.
Community activists and advocates may be subject to physical threats as a result of their work. Examples include actual armed attacks, threatening phone calls and other communications, and intimidating shadowing or surveillance. Threats can come from
Security experts agree that the first crucial step toward managing security risks is to analyse the potential threats, sources of support, and other factors relating to a community’s objectives.
If you are likely to face a threat, you should know in advance whom you can call on for support, locally or internationally, and under which circumstances.
A more complete description of this type of security analysis can be found in Chapter 1 of the Protection Manual for Human Rights Defenders [pdf], published by Front Line, the International Foundation for the Protection of Human Rights Defenders, 2005. [*]
NB! You should conduct a thorough risk analysis before initiating any legal action. The risks for human rights defenders are very real. Before embarking on any legal strategy, activists and advocates need to be fully aware of security and safety concerns and how they can be managed.
This exercise should feed into a more complete risk analysis which compares the vulnerabilities of your community or organisation with its capacity (internal and external) to handle any threats it is likely to face. (See Chapters 2 and 3 of the Front Line Protection Manual , cited above. )
Finally, use your risk analysis to construct a security strategy which adequately protects the areas in which you operate. This may involve strengthening physical security for your office and home. You should also touch base regularly with key supporters to inform and update them on any possible threats.
Based on your priorities and the threats and vulnerabilities identified in your risk analysis, you may have to adapt some aspects of your activities. You may need to build alliances, improve security technology, and change the ways you communicate and travel.
See also: “How do I manage my confidential information?”*)
Try to build alliances with local officials and members of the security forces who are sympathetic to your cause or at least appear neutral. Within any given institution, some individuals may be more sympathetic to your case than others; try to influence and engage with these people. Those who have personal experience of the problems targeted in your lawsuit will often be sympathetic and may influence others further up the chain of command.
One excellent way to improve your physical security is to enlist international support and solidarity. A number of government bodies and non-governmental organisations offer support and accompaniment to human rights defenders who are threatened by physical violence or intimidation. These bodies include:
Support can take the form of writing letters to the authorities concerned and engaging in other types of public advocacy. It can include visiting the affected areas and physically accompanying activists to court hearings or other events. In extreme cases, these organizations may assist threatened persons to leave the country.
Such contacts and alliances reduce risk to local activists and provide some level of security and reassurance in case of threat or attack. On balance, engaging with international organisations may be the best and most effective form of support available.
However, a disadvantage of international support is that association with foreigners and the international community could generate undue attention and provoke backlash.
You will therefore need to weigh up the costs and benefits of international engagement, taking into account the specific context, your needs and particular local challenges.
When the interests of powerful and well-connected adversaries are challenged, they often respond with subtle threats rather than openly physical attacks. Communities should be aware of these tactics and be prepared to respond.
Defendants in lawsuits may seek to discourage their opponents by filing retaliatory legal actions against the plaintiffs. For example, they could charge the plaintiffs with defamation, trespass, or conspiracy. These lawsuits are often referred to as SLAPPs (Strategic Lawsuits Against Public Participation). SLAPPs can exhaust plaintiffs’ resources, force anonymous plaintiffs to reveal themselves and expose them to potential financial liability that they likely cannot afford.
Many U.S. states have anti-SLAPP statutes but most countries do not. If your lawsuit may provoke a SLAPP, you should seek legal advice prior to filing and line up legal defence in advance if possible.
Similarly, defendants may engage in delaying and obstructive tactics within the litigation process. For example, they may file multiple, repetitive motions or requests, taking advantage of their superior resources to swamp the applicant in paperwork. Or they may seek mandatory disclosure of marginally relevant information from applicants in an effort to intimidate and use against them. Applicants and their counsel should be well aware of these aggressive tactics and should explore their procedural options to quash attempts to “drown them in paper.”
Respondents may seek to win their case in the media by attacking their opponents and spreading untrue rumours about them. Such attacks, if not addressed, can drive away supporters and weaken an advocacy campaign. Communities should develop their own media strategy if possible to counter this tactic.
Respondents may also try to infiltrate community opponents or advocacy groups to gather information on their strategies and spread dissension and division. They may try to destroy the trust that holds the group together with tactics such as buying off elements within the group, thereby turning a community against itself and causing the legal action to fail.
Communities and advocates should choose their advisers, consultants, and new hires carefully and should hold extensive up-front discussions to clarify their aims and objectives. They will need to consider contingency plans if they learn that their information security has been compromised.
Respondents may also seek to corrupt the legal system in order to protect their interests. They could bribe judges or pressurise legislators and other officials by corrupt means to change the laws in their favour.
Watch out for any signs of corruption. Use the media and any criminal or administrative remedies to root out public bribery. For example, many Latin American countries have judicial commissions that are charged with removing corrupt judges.
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