Overly broad laws being used and abused to silence dissent, restrict independence and resources of NGOs, criminalise protest, and detain defenders of human rights and the environment
The work of human rights defenders is extraordinarily dangerous and increasingly criminalized in many States, a panel of experts said at the UN on 23 October. The panelists – speaking at an event co-sponsored by Amnesty International, FIDH and the International Service for Human Rights – testified that we are in the midst of a ‘global crackdown’ on human rights defenders, with laws being used and abused to silence dissent, restrict the independence and resources of NGOs, criminalise protest, and detain defenders contrary to international standards.
‘Around the world governments are using the imperatives of economic development and the need to counter terrorism and violent extremism to justify, or as a subterfuge for, laws and policies which unnecessarily and disproportionately restrict the rights to freedom of expression, association and assembly,’ said UN Special Rapporteur on Human Rights Defenders, Michel Forst. ‘Increasingly, these laws not only restrict but criminalise the exercise of these rights and the vital work of human rights defenders,’ he added. The Special Rapporteur pointed to recently enacted laws on the protection of human rights defenders in States such as Honduras and Cote d’Ivoire as showing there is an alternative way, while emphasising that the effectiveness of such laws depends also on political will and adequate resourcing. Mr Forst’s next report to the Human Rights Council will focus on ‘good practices’ in the protection of defenders.
Fellow panelist Sharon Hom, Executive Director of Human Rights in China, testified that recently enacted or proposed laws on national security, counter-terrorism and the management of foreign non-governmental organisations in China all have the purpose or effect of restricting and criminalising human rights work, in contravention of the UN Declaration on Human Rights Defenders. ‘Restrictive and overbroad legislation is increasingly used in China to legitimate the harassment, arrest or arbitrary detention of human rights defenders,’ said Ms Hom, citing as an example the more than 200 human rights defenders and lawyers who have been harassed, detained and even disappeared in China since July 2015.
Paul Nsapu Mukulu, Director of Ligue des Electeurs in the Democratic Republic of Congo and FIDH Secretary General, told the UN event that there is a particularly concerning trend of governments using laws to restrict the rights to freedom of expression, association and assembly in the lead up to elections in African States. ‘Broad concepts such as “national security” and “public order” should not be used to justify arbitrary or disproportionate restrictions on the work of human rights defenders, Mr Mukulu said.
Meanwhile, human rights activist and head of Russian human rights NGO ADC Memorial, Stephania Kulaeva, gave evidence that legal restrictions on NGO access to funding from abroad, and the designation of NGOs that receive such funds as ‘foreign agents’ or spies, has forced the closure or relocation of many organisations in Russia. ADC Memorial itself was forced to close its operations in Russia and relocate after being stigmatised as a ‘foreign agent’. ‘The foreign agent law and the more recent “Law on Undesirable Organisations” have a negative impact not only on the NGOs concerned but on the many marginalised or vulnerable individuals and groups who rely on such organisations to stand up and speak out for their fundamental human rights,’ Ms Kulaeva said.
Ms Kulaeva also gave evidence as to the enactment and application of laws which target and criminalise particular groups of human rights defenders or advocacy on particular human rights issues. ‘Russia’s sweeping anti-LGBTI laws not only criminalise homosexuality, but also certain forms of advocacy in relation to the rights to equality and non-discrimination,’ Ms Kulaeva said.
Responding to these disturbing trends, the organisations sponsoring the event – ISHR, FIDH and Amnesty International – called on all States to review and repeal laws and policies which operate to restrict or criminalise the work of human rights defenders and enact specific laws and policies to give full force and effect to the UN Declaration on Human Rights Defenders at the national level, including by enshrining the right to access and communicate with the UN and to be protected from intimidation and reprisals in connection with such cooperation. States should also ensure that the draft resolution on the protection of human rights defenders currently being negotiated at the UN General Assembly contains clear calls and provides explicit directions by States in that regard.
The most recent report of the UN Special Rapporteur on Human Rights Defenders was presented to the UN General Assembly on 22 October 2015.
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There is a significant implementation gap between the UN Declaration on Human Rights Defenders, on the one hand, and national laws and policies to support and protect defenders, on the other. There is also a proliferation of national laws which restrict and criminalise defenders’ work. ISHR works to ensure that international and regional human rights mechanisms make stronger standards, resolutions and recommendations on the protection of defenders, and that States enact national laws and policies to give effect to these norms. Key activities in this regard include: developing a model national law on the protection of human rights defenders; providing legal and technical guidance and advice to civil society actors and States regarding the development and implementation of human rights defender laws and policies; and advocating with international and regional mechanisms to strengthen resolutions and standards in relation to human rights defenders and related issues. The model law project is proceeding through a number of key stages over three years (2014-2016):
- Comparative research across more than 40 States on the existence of – and good practice in relation to – laws, policies and institutions which recognise, protect and support the work of human rights defenders and NGOs. This research, which also identified and documented laws and policies which unduly restrict, hamper or interfere with human rights defenders’ work, was compiled into a major report with 25 concrete recommendations to States as to effective implementation of the Declaaration on Human Rights Defenders at the national level.
- Regional consultations organised by ISHR, in partnership with regional and sub-regional NGOs, to obtain input from national human rights defenders on the scope and content of a model law, together with identification of the types of laws and policies that restrict or hamper their work. These consultations were carried out and are planned in 2014 and 2015, with consultation in Asia having taken place in April 2014, the consultation in Tunisia for the Middle East and North African region in October 2014, the consultation for Eastern Europe and Central Asia in Georgia in November 2014, and consultations in Latin America in Colombia and Guatemala in January 2015. Two further consultations are planned for Africa in Cote d’Ivoire (francophone) and Uganda (anglophone) in May and June of 2015.
- Drafting of a model law by ISHR and pro bono legal experts based on the comparative research and regional consultations, and development of a comprehensive audit of the types of laws and policies requiring review or amendment to ensure that defenders are not unduly hampered or restricted in their work. This stage has commenced with leading international law firm Freshfields Bruckhaus Deringer starting work in early 2015.
- Refinement and ‘adoption’ of the model law by a meeting of international human rights experts. This stage is planned for the first quarter of 2016.
- Advocacy efforts at the international level for the UN Human Rights Council to endorse the model law and at the regional level for relevant human rights bodies (such as the African Commission on Human and Peoples’ Rights) to do likewise. This stage is planned for 2016.
- Advocacy efforts at the national level in two or three strategically selected States with a view to enacting the model law in legislation or implementing it in policy. This stage is planned for 2016.
For further information about this project, please contact: Michael Ineichen, Director – UN Human Rights Council Advocacy, International Service for Human Rights, on [email protected] or + 41 78 827 77 86.
States should also review and amend laws and policies which operate to close civil society space or to unduly restrict and even criminalise the work of human rights defenders, including counterterrorism laws, laws which restrict access to funding and resources, and laws limiting the right to peaceful assembly and protest.
Report emphasises the role and responsibility of corporations and investors in protecting civil society space, and the business case for doing so, with corporations urged to act in enlightened self-interest by speak out against restrictions on the rights to freedom of expression, association and assembly in the jurisdictions in which they operate or have interests.
States urged to enact and effectively implement specific laws and policies for the protection of human rights defenders The new joint report emphasises that States have the primary responsibility to support human rights defenders and safeguard civil society space. Measures in this regard should include the enactment of specific laws and policies to protect human rights defenders and to enable their work, including laws and policies on access to information, the prevention of reprisals, and the right to advocate and associate freely. The report also emphasises the importance of States reviewing and amending laws and policies which operate to close civil society space or to unduly restrict and even criminalise the work of human rights defenders, including counter-terrorism laws, laws which restrict access to funding and resources, and laws limiting the right to peaceful assembly and protest. ‘An enabling legal environment which facilitates the formation of associations, provides the ability to access and use resources, and recognises the right to advocate without restriction and without fear of reprisal, is essential to human rights, good government and the rule of law,’ said ISHR Director Phil Lynch. The ‘business case’ for speaking out on the protection of civil society space The report also emphasises the role and responsibility of corporations and investors in protecting civil society space, with enlightened companies recognising that respect for the rights to freedom of expression, association, assembly and non-discrimination, together with a vibrant civil society that can combat corruption and advocate for the rule of law, is necessary to ensure the conditions in which business can operate safely, predictably and without undue restriction. ‘Responsible companies are increasingly seeing the legal, moral and business imperatives of speaking out against attacks on human rights defenders, with the intervention of Tiffany & Co in support of corporate accountability activist and journalist Rafael Marques in Angola being a good case in point. They are also increasingly seeing the importance of, and benefits associated with, standing up for the rights to freedom of expression, association, assembly and non-discrimination, with the literally hundreds of corporations lending their support to the cause of LGBT rights being a very positive sign,’ Mr Lynch said.
The report also discusses the importance of businesses engaging with human rights defenders for the purpose of conducting due diligence and human rights impact assessment and securing a community ‘license to operate’, ‘Human rights defenders have a vital role to play working alongside business to promote corporate respect for human rights, identify and mitigate human rights risk, and ensure corporate accountability for violations,’ Mr Lynch said. Civil society itself needs to collaborate, coordinate and innovate The report recognises that funders and civil society organisations themselves also have a role to play in protecting civil society space, with coordination, collaboration and networks between human rights defenders and NGOs increasing their protection and amplifying the impact of their work. ‘The work of coalitions such as the West African Human Rights Defenders Network, the East and Horn of Africa Human Rights Defenders Project and the Women Human Rights Defenders International Coalition is essential both for the coordination of advocacy efforts at the international level and the protection of human rights defenders on the ground,’ Mr Lynch said. UN must to more to protect civil society participation and space For its part, the UN also has a role and responsibility in safeguarding civil society space, ensuring that its mechanisms are accessible, effective and protective for human rights defenders and other civil society actors. ‘The ongoing incidence and severity of reprisals, together with the denial of accreditation to many NGOs working on issues such as women’s rights, LGBT rights and minority rights, show that the UN itself still has some way to go in ensuring effective civil society participation and protecting civil society space,’ said Mr Lynch. ‘It is essential that the UN and its Member States prioritise efforts to protect human rights defenders from acts of intimidation and reprisals, including by supporting the UN Secretary-General to designate a high-level focal point to combat reprisals. It is also imperative that UN processes for NGO accreditation and participation are reformed to respect the basic rights to freedom of expression, association and participation,’ he said. The report was prepared and submitted by ISHR and the following organisations: Centro de Investigaciòn y Capacitaciòn Propuesta Civica A.C (Mexico) Civil Society Organisation Network for Development (Burkina Faso) Coalition Ivoirienne des Defenseurs des Droits de l’Homme (Côte d’Ivoire) Comisión Intereclesial de Justicia y Paz (Colombia) Human Rights Awareness and Promotion Forum (Uganda) ISHR Human Rights Monitor – October 2015 31 Human Rights Defenders Network (Sierra Leone) Human Rights Movement: Bir Duino (Kyrgyzstan) India Social Action Forum (India) Just Associates (Honduras) Seguridad en democracia (Guatemala) Terra de direitos (Brazil).
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