The challenges of achieving a balance between security and human rights

By Guillermo Fernández-Maldonado

English translation by Yenni Castro (Valestra Editorial)

The state as guarantor of human rights

Human rights, recognized in constitutions and international treaties, are universal and inalienable. Their protection is a legal duty of every state. With this solid normative basis, the debate should focus on identifying, analyzing, and removing the obstacles that prevent states from fulfilling their duties to respect, protection, and guarantee of these rights.   
How are these duties fulfilled? With measures to ensure that state officials respect human rights; to prevent, investigate, and sanction non-state actors affecting these rights; with a legal framework, public policies, and budgets to progressively implement these rights for all people.
The state has been conceived as the alleged violator, the law as a limit to its actions, and security and human rights as mutually exclusive. The current challenges require conceiving the state as the guarantor of rights, the law as the source of its legitimacy, and security as an essential part of human rights guarantees.
In the region, authoritarian regimes applied violent repression, with serious consequences for the rule of law and human rights, under the argument of protecting national security. There is a history of repression of political opponents, conflicts, and social protests by authoritarian and even democratic regimes. A common denominator has been the absence of effective legal, judicial, and democratic controls of the perpetrators and of profound changes in the state institutions linked to security.

Democracy, security, and citizen frustration

The return to democracy generated great expectations in the region. The population expected improved living standards, greater equality, security, justice, and respect for human rights. However, the important normative and institutional development in favor of these rights, with national and international protection systems, did not achieve the necessary changes in the core of the doctrine, operational procedures, and accountability of military and police institutions.

After several decades of governments in democracy, with different political orientations, citizen frustration with their performance is undeniable. One of its main causes is insecurity, the state's inability to protect and curb violence, corruption, and impunity. Today the population is a daily victim of crime and corruption. They feel unprotected in the face of the growing violence and power of organized crime. The region concentrates most of the most dangerous cities in the world, is where the largest number of journalists, human rights, and environmental defenders are murdered, and where gender violence and violence against migrants and refugees flourishes. Impunity for serious crimes is almost total.

In light of this incapacity, which has eroded the credibility of the democratic system and the political class, support for “iron fist” leadership and measures is increasingly frequent. That is, repressive action without effective controls, militarization, and even the use of weapons by civilians and "justice by one's own hand". Many believe that nowadays they are the only way to curb crime and violence. They do not question whether these measures achieve sustainable security or whether they are compatible with the rule of law and respect for human rights.

This situation and the difficulty of achieving profound changes also stem from misdiagnoses. For example, claiming that the security forces cannot guarantee security due to the restrictions imposed on them by law, to poor administration of justice, and to "politicized" criticisms of their human rights performance. That is, prosecutors, judges, defenders, and human rights protection systems are at fault for demanding compliance with the Constitution and the law. It is the same argument that sought impunity for the perpetrators of repression in the past, who accused any person or organization that demanded justice and respect for the law, of being accomplices of criminals, facade organisms of subversion or being at the service of foreign ideologies.

When the population, fed up with being victims of criminal violence and the state, has demanded changes, because police action not only does not protect the population, but has a history of abuses, excessive use of force, corruption, and complicity with criminals, it has been ruled out to undertake the necessary comprehensive reforms and it has been opted for short-term impact measures, such as greater deployment of troops or militarization of citizen security.

Building a national response with international support

The challenges posed by the serious insecurity situation in the region require effective short-term measures to protect and restore public confidence but, for a sustainable long-term solution, the structural causes of violence and the shortcomings that prevent the institutions responsible for security and the administration of justice from fulfilling their role as guarantors of the right to security must be identified, analyzed, and addressed in parallel. In order to achieve this comprehensive response, states should rely on the experience and expertise of national and international protection systems.

Let us recall that states created the inter-American and UN protection systems to support the fulfillment of their human rights obligations. Today they have vast practical experience, have developed guides and manuals, interpreted the content of rights, and made specific recommendations adapted to each national reality, for example, related to security and the fight against impunity. Still, only their auditing and public action has been highlighted, which is used as a political weapon in a framework of great polarization. This has generated defensive postures from governments, if not public rejection.

New channels of interaction must be opened that allow states, in confidential spaces if necessary, to present their needs and request the assistance and technical support of experts from both international protection systems, in order to address their needs in accordance with international human rights regulations and standards.

Opportunities to move forward

In view of the problems, obstacles, and challenges that have arisen, there are measures at different political levels and by different actors, whose adoption should be evaluated:

1. Participatory construction based on international standards: security policies and measures, such as those suggested herein, should be constructed and monitored with citizen participation, with the support of academia and international protection systems, based on evidence and human rights obligations.
2. Strategic and comprehensive planning: We must address both the symptoms of insecurity in the short term, and the medium and long term policies that remove the underlying causes, such as poverty and inequality. It is a multidisciplinary work with a South-South cooperation vocation.
3. Closing implementation gaps:  The main challenge is developing policies, strengthening institutions, and allocating sufficient resources for the state to guarantee legally recognized rights.
4. Regulatory and institutional reforms:

• Security forces: A profound reform is essential, with changes in their regulations, doctrine, curricula, professionalization, operational methods, intelligence, and accountability.
• Justice administration: An independent and timely justice system is essential to protect human rights and avoid impunity. Identifying with certainty what limits or impedes its role in each country is necessary.

About the Author

Guillermo Fernández-Maldonado C. holds a law degree from the Pontificia Universidad Católica del Perú; a master's degree in Public Administration, and a doctorate in Law from the Universidad de Alcalá de Henares, Spain. He has more than 35 years of academic and practical experience in the field of human rights, international humanitarian law, and international affairs, especially with the United Nations. He has worked with the UN in countries with peacekeeping missions or security challenges, such as Afghanistan, Colombia, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, and Peru.

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