New historic judgment: Members of José Alvear Restrepo Lawyers’ Collective v Colombia

On 18 October 2023, the Inter-American Court of Human Rights (IACtHR or Court) issued a historic judgment declaring the Republic of Colombia internationally responsible for human rights violations against several members of the human rights non-profit Colectivo de Abogados y Abogadas José Alvear Restrepo (CAJAR)and their relatives. This groundbreaking decision marks the first acknowledgment within the inter-American context of a state’s international responsibility for violating the right to defend human rights. This violation, according to the Court, was committed through secretive and unlawful intelligence activities, among other methods.

CAJAR is a non-profit organisation dedicated to defending human rights in Colombia since 1980. Currently, CAJAR is actively monitoring over 480 cases at both national and international levels, aiming to address severe human rights violations, including forced disappearances, extrajudicial executions, massacres, torture, forced displacement, and sexual violence, among others. This crucial work has been conducted amidst a hostile environment, prompting CAJAR to receive international protection measures from the IACtHR since 2000, which remain in effect to this day.

Unfortunately, the challenging environment in which CAJAR operates, is part of a broader national problem recognised by various international bodies, such as the United Nations special rapporteurs and the Office of the High Commissioner for Human Rights, alongside national institutions in Colombia like the Constitutional Court. These entities have frequently cited the “special situation of vulnerability” and “special level of risk” encountered by human rights defenders in Colombian territory.

In this case, the Inter-American Court’s findings confirmed that since the 1990s and until at least 2005, the Armed Forces, the National Police, and the Administrative Department of Security collected information from different members of CAJAR. They prepared physical and magnetic records containing various data and annotations related to the members, including places of residence, work, and frequent visits, as well as individual and family routines, sometimes accompanied by photographic and filming supports.

These records were then used for surveillance, harassment, and attacks against CAJAR members and their families, often resulting in their forced relocation from their residences or workplaces, or even their departure from their own country. According to the judgment, these operations persisted even after the enactment of Law 1621, which aimed to regulate intelligence and counterintelligence functions. During this time, the Court recognised that members of CAJAR and their relatives endured stigmatization, violence, harassment, and intimidation, putting their lives and integrity at risk.

These actions significantly impeded CAJAR’s normal operations, severely affecting its members’ ability to exercise their right to defend human rights, a right recognized for the first time as autonomous in this judgment. The IACtHR stated that the right to defend human rights includes the effective possibility of freely engaging in various activities aimed at promoting, monitoring, advocating, disseminating, educating, defending, asserting, or protecting universally recognised human rights and fundamental freedoms, without limitations or risks.

This recognition also implies that intelligence services constitute interference with the exercise of human rights, and consequently, they should be held accountable for their actions. While the Court acknowledged that states can carry out intelligence activities, such actions must comply with certain limitations and oversight measures, such as the requirement of judicial authority (in some cases). It also emphasized the importance of limiting intelligence actions concerning certain categories of individuals, particularly journalists and lawyers, to safeguard the confidentiality of their sources and communications within the scope of their professional relationship.

Regarding the right to privacy, the Inter-American Court recognised that it demands specific protective measures regarding the use of new technologies, including the Internet, within the framework of intelligence activities. Also, intelligence activities must be clearly established by law and meet criteria of legitimacy, necessity, and proportionality to be considered necessary in a democratic society. Furthermore, the Court underscored that the right to the protection of personal data requires informed consent or a normative basis expressly authorizing public agencies to conduct such actions.

Additionally, the Court recognized the right to informational self-determination, indicating that this right is encompassed within the protective scope of the American Convention and has different components, such as access to and control over personal data held by public bodies, as well as records or databases managed by private entities. This includes the right to rectify, modify, or update their data. According to the IACtHR, this right serves as a guarantee for other rights, including privacy, honor, reputation, and human dignity.

The Court concluded that the State was responsible for violating the rights to life, personal integrity, privacy, freedom of thought and expression, informational self-determination, truth, honor, judicial guarantees, judicial protection, freedom of association, movement and residence, family protection, children’s rights, and the right to defend human rights of the members of CAJAR and their relatives.

This judgment sets an important precedent. Yet we believe the Court missed the opportunity to strongly condemn state mass surveillance, which is possible under an ambiguous provision in Colombia’s Intelligence Law that allows for spectrum monitoring. Now it will be the time for Colombian courts to rule on this matter, as we believe that in legal terms, the problem with mass surveillance is that it is neither strictly necessary nor proportionate in a democratic society. By systematically monitoring people’s lives, mass surveillance enables the potential for unchecked state power and control over individuals.

Finally, the Court issued comprehensive reparations measures, which included the uncommon directive to adjust intelligence and counterintelligence laws as well as military manuals to conform with international human rights standards, among other provisions. This action is consistent with joint intervention made by Privacy International, alongside Article 19, Electronic Frontier Foundation, and Fundación Karisma, represented by the International Human Rights Law Clinic at the University of Berkeley, in this case.

This judgment sets a milestone for Colombia and sends a strong message to a country where 181 social leaders and human rights defenders were murdered in 2023, an alarming statistic. In these circumstances, the Court’s recognition of important rights such as defending human rights and the right to informational self-determination marks a crucial point in defining how intelligence activities should be overseen and their limits established.

While the Court could have gone further condemning mass surveillance, we applaud and celebrate the judgment. It’s crucial moving forward to closely monitor the implementation of the remedies prescribed. This vigilance is necessary to ensure their effective enforcement and to gauge their impact, particularly on states within the region that are bound by the the American Convention on Human Rights

The arguments and rights discussed above are just a selection of the many crucial points addressed in the full judgment.