Who human rights lawyers are: a guide to the history and essence of the term
Published June 20, 2023
Relevance and reasons for the discourse
In the spring of 2023, attorneys deprived of the right to practice in Belarus and forced to leave the country decided to unite into the Belarusian Association of Human Rights Lawyers. The new organization is created as dozens of attorneys who were wrongfully deprived of the right to practice in their country continue to work as human rights lawyers: litigating cases before international bodies, providing legal assistance and legal opinions, providing legal commentary and remaining professionals responsible for the accomplishment of the mission of an attorney.

In an adequate rule of law state, attorneys are engaged in protecting and representing the interests of their clients in the justice system (naturally, this means the general justice system, as a system for achieving justice, and not working with a specific court), while human rights defenders mainly work directly with human rights by identifying violations of such rights and systemically restoring them for the benefit of the public interest. In addition, human rights defenders are engaged in protecting the rights of vulnerable groups who, for economic reasons, cannot receive legal assistance from attorneys, especially in the context of regulation and the actual ban on pro bono legal assistance.

In the Belarusian circumstances, a situation has arisen where both attorneys and human rights defenders (with some functional differences) work to protect the human rights of individuals, but both are persecuted for such activities through criminal prosecution, detention, deregistration of human rights organizations and deprivation of attorney's licenses . Persecution of attorneys involved in sensitive cases for the state (and cases of human rights violations are almost always sensitive for the state) has led to an even greater decrease in the interest of attorneys in providing legal assistance in such cases, and therefore this type of cases is being squeezed out of the legal profession's function spectrum. In turn, human rights defenders are increasingly forced to provide legal assistance to victims of human rights violations, as an increasing number of individuals are left without adequate protection. As a response to this challenge, the concept of a "human rights lawyer" emerged, which includes all attorneys who work to protect the rights of specific people and, by virtue of performing this legitimate function, require appropriate professional guarantees. This status and guarantees should not be dependent on those states that abuse their power to grant or terminate the right to practice as attorneys (through licensing or control of a country's bar association), deprive attorneys of the right to practice, and leave their clients without effective protection.

It should be remembered that the "umbrella" act confirming the natural right of every person to engage in the protection of human rights, to engage in the education of other persons in this area, and, accordingly, the obligations of states to encourage this activity, not to hinder or create artificial barriers to engaging in this activity, is the Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms, adopted by the UN General Assembly in 1999. This act, among other things, protects the very existence of human rights activities, its legality and the impossibility of restrictions. And as time has shown, it is now important to talk about the next development - about human rights lawyers.

Due to the fact that the essence of the concept of "human rights lawyer" is disclosed in specialized documents, we decided to create a guide on the history of the term and its content to popularize the idea of the activity of human rights lawyers and their functional purpose.
History and appearance of the term
The term "human rights lawyer" was first used in 2014 at the conference of the international educational program "International Law for the Protection of Public Interests" (now the international partnership ILIA) in Vilnius, where lawyers from Azerbaijan, Belarus, Moldova, Russia and Ukraine took part. The conference discussed challenges and threats to their professional activities in the field of human rights protection.

Soon after this, Intigam Aliyev, one of the key ILIA experts, a disbarred attorney in Azerbaijan, who nevertheless represented dozens of applicants in the European Court of Human Rights, was arrested and sentenced to seven and a half years in prison. This event confirmed a trend observed in some Eastern European countries - attorneys who defend violated human rights of their clients are under pressure and are under threat.

In the report "Human Rights Lawyers at Risk" (September 2015), ILIA experts formulated the definition of human rights lawyers as follows: The term "human rights lawyer" describes a lawyer who provides legal advice to victims of human rights violations, regardless of the lawyer's membership in a professional bar association.

According to the wording of the concept in the report, the term "human rights defender" is general for everyone involved in human rights activities, including a human rights attorneys. The latter is both an attorney and a human rights activist.

On October 21, 2016, at the 7th session of the UN General Assembly, the Special Rapporteur on the independence of judges and lawyers of the UN Human Rights Council, Monica Pinto, presented a report in which the concept of human rights lawyers as a certain group of human rights defenders was highlighted.
Details about the status of a human rights lawyer: who they are, what rights and responsibilities they possess
It should be immediately clear that a human rights lawyer is not a status belonging to one specific organization, it is a functional status, that is, a status denoting engagement in a certain activity, according to certain rules and standards.

In short, we can say that a human rights lawyer is an attorney with competence in the field of human rights protection, capable of applying constitutional guarantees and international human rights standards in national courts (other procedures) and in international protection. In this case, the lawyer is subjected to a requirement, which is a guarantee for his or her clients, to comply with the generally recognized rules of attorney ethics. These characteristics determine this status regardless of the lawyer's affiliation with a national bar association and whether the state has issued a permit to practice law.
Human rights lawyer - this status is currently in the stage of development and formation, therefore, speaking about all the properties, characteristics, rights, responsibilities and standards, we are rather talking about the desired picture that would correspond to the interests of society and each individual person. It must be understood that any legal profession does not exist for itself, but exists insofar as society and people need a professional intermediary between them and the justice system. Since there is such a demand from society, the legal profession exists. Since there is a request for human rights lawyers in a situation of repression and persecution of those involved in the defence of human rights, this demand should be taken into account.
Human rights lawyers have certain responsibilities arising from their participation as a party to the due process and part of the responsibility for the due administration of justice.

The special nature of the relationship between an attorney and a client, as well as the set of professional and ethical obligations that apply to attorneys authorized by the state to practice in courts, predetermined the list of special duties, guarantees and immunities for human rights lawyers. When providing legal assistance to victims of human rights violations, human rights lawyers, as well as other lawyers, must follow generally recognized international standards of professional ethics for lawyers to the extent that they are applicable, including in matters of maintaining attorney-client privilege, confidentiality of communications, and protection of client's interests as a primary goal, increasing the prestige of the justice system and law (to the extent that the justice system deals with justice, and the legal system is the law in a particular country).

It is worth noting that in addition to the principles of advocacy, human rights lawyers should also be subjected to guarantees of independence and unhindered performance of their professional duties. Increasing the effectiveness of the human rights activities of human rights lawyers requires providing them with guarantees and immunity on an equal basis with other attorneys, including exemption from liability for refusal to disclose attorney-client privilege, freedom from prosecution for statements made in the interests of clients, non-identification with clients, access to materials and to clients in prison, etc. That is, answering the questions about what problem the development of this status solves, why it is impossible to get by with existing entities, and whether this violates the principle of Occam's razor, the following factors should be noted:

- the actions of the state have created a grey zone for the protection of human rights of specific individuals through repression of attorneys and human rights defenders engaged in such activities;

- due to the fact that the activity of protecting human rights exists insofar as there is a demand for the protection of human rights, this protection takes on different forms available to people - through attorneys who were previously deprived of licenses, or through human rights organizations that have to accept more and more requests. The state is not interested in the existence of either form of human rights protection;

- this activity needs the same guarantees as attorneys' activity, but due to the usurpation of the management of the legal profession by the state, this activity cannot be carried out within the legal profession, therefore, these guarantees do not apply under national legislation;

- this activity must be carried out at a certain level of professionalism, in compliance with the rules specific to the "attorney-client" relationship.

Based on these factors, the emergence of the status of a human rights lawyer is fully consistent with the interests of both persons engaged in such activities, as well as persons whose rights are protected by human rights lawyers, and is consistent with the general interest of the proper protection of human rights.
Relationship between human rights lawyers, licensed attorneys and human rights defenders
Absolute control of the state in some countries, the procedure for granting and revoking admission to the profession of an attorney makes it possible to deprive or restrict political prisoners and other persons who in one way or another oppose the current government of their right to defence, and the attorneys themselves of their right to practice. And we are talking not only about Belarus, but, as international reports testify, about other states of Eastern Europe, as well as about states where the legal profession is partially or completely under the control of the state represented by the justice authorities.

The bar. An attorney who was unjustifiably excluded from the national bar still has the competence and experience to provide qualified legal assistance to victims of human rights violations. Accordingly, the status of a human rights lawyer combines both independence from the state system of control of the legal profession and the necessary high level of qualifications for the implementation of legal protection. Continuing to work outside the national bar as a human rights lawyer not only allows the attorney to realize their professional potential, but also in the future will increase the overall level of human rights protection. Attorneys, moving to the status of human rights lawyers and systematically engaged in the protection of human rights, get the opportunity to see the problem through the eyes of a human rights defender - broadly, systematically, not limited to a specific case and a specific person, which is quite rarely observed in classical lawyering. As a result, the activity of providing legal assistance to clients acquires new dimensions and new depth.

Human rights protection. If a human rights defender is a comprehensive concept, then a human rights lawyer is a separate functional area of human rights protection. After all, it is obvious that human rights lawyers are not only unlicensed attorneys who continue to perform their professional duties even after expulsion from the profession, but also human rights defenders who directly work with specific victims of violated rights, providing legal assistance by giving consultations and representing the interests of victims in national and international administrative, judicial and quasi-judicial bodies.

The allocation of the status of human rights lawyer among human rights defenders gives grounds to talk about increasing the level of security in relations with a specific protected person, expanding the range of guarantees and immunities traditionally inherent only to licensed attorneys in accordance with national legislation (inviolability of postal and telegraph correspondence with a client, prohibition of violation of attorney-client privilege , confidentiality of communication with the client, non-identification with the client, freedom from prosecution for bona fide statements in the interests of the client, etc.). In addition, separating this part of human rights activity into a separate activity with its own ethics, its own requirements, its own specialization, will allow us to introduce generally recognized practices of advocacy, take more problems and requests from clients "on the ground" into account and comply with them. This introduction of "from the ground" practice, which is usually done by licensed attorneys, will allow human rights defenders to see requests for the protection of human rights through the eyes of an attorney, to see more of the individual nature of the requests and the people behind them.

Thus, the functional division can be represented as follows:

What's next
As already indicated, the status of a human rights lawyer and the provision of guarantees in activities are only at the stage of development and formation. To some extent it is obvious that in order to be able to function with all the guarantees that can only be provided by states, this status, as well as the professional associations whose membership gives the right to be considered a human rights lawyer, must be recognized in the countries where it is supposed to operate, or at the international level, in particular at the level of the Council of Europe. It should be noted that the process of developing a Convention on the Profession of Lawyer is currently underway at the level of the Council of Europe (we will definitely talk about this convention on our website). According to available information, issues of regulating the status of human rights lawyers have a chance to be included in this convention.

It is also necessary to develop rules of professional ethics that would combine human rights principles and attorney ethics in relationships with clients and among themselves, and not according to the model accepted in Belarus, but precisely according to generally recognized standards of legal practice. It is logical that these rules cannot be created in a vacuum: their content must be the result of joint work of the legal and human rights community in order to be perceived as a tool that is really needed and that really helps.

There are still a number of unresolved interesting issues in the field of human rights protection. For example, should the same guarantees be established for students involved in human rights advocacy within legal clinics? It seems logical that yes, because the nature of the relationship is the same exactly. In general, the concept is under development and there is a lot of interesting things ahead.

The issue of providing human rights lawyers with guarantees and immunity on an equal basis with classical attorneys depends on the dissemination and popularization of the concept. In this regard, the creation and activities of the Belarusian Association of Human Rights Lawyers, which is designed to demonstrate the important role of human rights lawyers in ensuring and protecting human rights, raising the standards of legal assistance, as well as bringing the perception of the status of a human rights lawyer to a qualitatively different level both in public consciousness and in regulatory regulation, should be noted as a positive action. It should be noted that due to the functional nature of the status of a human rights lawyer, the Belarusian Association of Human Rights Lawyers may well not be the only association uniting human rights lawyers and giving the right to be called a human rights lawyer and engage in this activity. May well not be the only one, and not the only Belarusian one, but it's another step in promoting the concept of a HRL.

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