Human Rights Watch Submission re the Situation of Human Rights Defenders Working on Business and International Financial Institutions

Human Rights Watch Submission: Situation of Human Rights Defenders Working on Business

1. Human Rights Obligations of International Financial Institutions (IFIs)

Human Rights Watch believes it is important for UN experts to ground their work on IFIs in the human rights standards applicable to these institutions. With the exception of the European banks, IFIs often argue that they are bound only by their own internal standards, rather than international human rights standards. It is essential that UN human rights experts counter this.

As an international organization, the World Bank derives human rights obligations from customary international law and general principles of law.^[1] As a UN specialized agency, it has an obligation to respect and promote human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.^[2] In addition to the World Bank bearing human rights obligations in its own legal capacity, each of its member countries has similar and additional specific human rights obligations that derive, for example, from treaties to which they are a party. As UN member states, they are also obliged under article 103 of the UN Charter to comply with the Charter over other international agreements in the event of a conflict between the two.^[3] The International Bill of Rights, which refers to the combination of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), is recognized as the key source used to interpret the rights provisions in the UN Charter.^[4] Moreover, both states^[5] and IFIs^[6] have obligations to provide effective remedies for human rights violations to which they contribute or for which they are responsible.

Contrary to the arguments of some, certain international human rights standards do apply to IFIs. IFIs should not only refrain from directly violating those rights protected under international law, but also factor them into decision making and address them if they arise.

2. IFIs Do Not Work to Prevent or Respond to Reprisals Against Critics

Human Rights Watch research has revealed that IFIs have done little to prevent or respond to reprisals against critics of projects that they finance. Our 2015 report At Your Own Risk: Reprisals against Critics of World Bank Group Projects, documents cases of individuals and communities in Cambodia, Ethiopia, India, Uganda, Uzbekistan, and elsewhere that have faced reprisals from governments and powerful companies for criticizing projects financed by the World Bank and the IFC. These reprisals take a variety of forms. We documented cases where project critics and concerned community members have been the target of threats, intimidation tactics, and baseless criminal charges, as well as situations where security forces have responded violently to peaceful protests, physically assaulting community members and arbitrarily arresting them. Some women have faced sexual harassment or gender-based threats, attacks, or insults when they speak out. In other cases, critics or their family members have been threatened with the loss of their jobs or livelihoods. In many countries, these reprisals often occur within a broader effort to demonize critics as unpatriotic or “anti-development.”[7]

Despite the grave risks that people living in communities affected by World Bank and IFC-financed projects take to speak out about the problems that they see with such projects or the harm that they face, the World Bank and IFC have done little to secure a safe environment in which people can speak freely without risk of reprisals. Bank and IFC officials failed to respond meaningfully to these breaches, doing little to support or compensate victims or to deter future attacks, despite the Group’s stated commitment to the principles of participation and accountability. In some cases, the World Bank Group has failed even to take appropriate action when people have suffered reprisals specifically because they were involved in bringing human rights concerns to the attention of Group officials.

In repressive environments, the World Bank Group has often closed its eyes to the risk of abuse rather than engage in difficult conversations with partner governments.[8]

In the past, the World Bank Group has occasionally responded swiftly and publicly to certain high-profile incidents of reprisals. Former World Bank Group President James Wolfensohn intervened at the highest level of government, and publicly reported on his interventions when an Inspection Panel complainant and opposition leader was arrested in Chad in 2001. A World Bank official also spoke publicly against the Cambodian government’s violent crackdown on protestors in 2002, highlighting how such actions run contrary to any commitment to participation and accountability.[9]

Although even at the time they were sporadic, such efforts by the Bank to respond to reprisals appear to have been replaced by, at best, quiet conversations behind closed doors with questionable utility. At worst, the prevailing response seems in some cases to have been one of complete apathy.

The World Bank should consistently emphasize to member countries that criticism of World Bank Group-financed activities is welcomed and seen as an important part of improving the impacts of development efforts—and that reprisals against critics or people otherwise involved in such activities will be publicly and vigorously opposed. Please see attached our recommendations to the World Bank Group, which apply equally to other development finance institutions.[10]

3. Cultivate Space for Public Dialogue

In recent years, a growing number of governments have embarked upon broad and sometimes brutal campaigns to shut down the space for civil society activity, in some cases going so far as to criminalize independent human rights work. These abusive measures can prevent people from participating in decisions about development, from publicly opposing development initiatives that may harm their livelihoods or violate their rights, and from complaining about development initiatives that are ineffective, harmful, or have otherwise gone wrong. These broader trends toward repression have profound impacts for IFI-supported projects in countries like Ethiopia and Uzbekistan. Not only do many community members and activists face an increasing risk of reprisal for speaking out against IFI-financed projects that enjoy government support, independent groups who could otherwise help communities articulate their concerns and perspectives about development projects face similar challenges. IFIs have not taken meaningful steps toward creating an enabling environment for participation and accountability when it finances projects in countries that are closing or have effectively closed civil society space or routinely punish dissent.[11]

IFIs should consider whether there is an enabling environment for public participation and accountability in developing their country strategies and partnerships. They should seize all available opportunities to support governments to open space for engagement and to confront governments that are actively working to close that space down. IFIs should consistently raise concerns with governments, both privately and publicly, when authorities use repressive tactics or introduce problematic laws; ensure opportunities for effective participation at the project level; and put additional monitoring in place to be able to detect problems, particularly in countries with a history of crackdowns on protests. In fact, IFIs have a role to play in ensuring that law enforcement is properly trained to strictly observe international standards on the use of force and provide protection to peaceful protestors during assemblies. While this is primarily a duty for states, IFIs should, at a minimum, emphasize to governments that peaceful protests about projects they finance are legitimate and should be permitted to take place outside the institution’s building, and ask governments to ensure that any law enforcement officials policing such protests are appropriately trained, supervised, and held to account for use of force that does not comply with international standards.[12]

4. IFI Accountability Mechanisms

In response to our report, several IFI accountability mechanisms have been in the process of developing guidelines to prevent, monitor, and respond to reprisals. For example, on March 30, 2016, the Inspection Panel published Guidelines to Reduce Retaliation Risks and Respond to Retaliation During the Panel Process.^[13] We encourage other accountability mechanisms and the institutions themselves to build on this positive development. We urge them to use every avenue available to respond to reprisals directly so as to ensure that the security of complainants and others is restored and maintained, as is their ability to continue their work as human rights defenders. This should include publicly denouncing reprisals and intervening in specific cases to push governments or companies to halt or refrain from serious abuses.

Accountability mechanisms should also work with the institutions to develop an early warning system to identify threats or other security issues, particularly for those who have filed or are considering filing a complaint or are otherwise critical of a project. They should systematically analyze the risk of reprisals and other security risks linked to every complaint received, proactively discuss those risks with complainants, and promptly implement protection measures. The CAO has acknowledged that “the ‘culture of intimidation and reprisals within a given context should form part of any pre-project assessment of the appropriateness for engagement.’”^[14]

5. IFIs Should Support Governments in Realizing their Obligations to Regulate Business

IFIs should also assist governments in fulfilling their obligations to regulate the practices of companies to ensure that they do not violate human rights.^[15] They are well positioned to help advance rights at the national level by using their influence over member states and corporate clients. For example, in 2012, the IFC put forth “Performance Standards on Environmental and Social Sustainability” that outline how its clients should manage social and environmental risks.^[16] The requirements cover consultation, risk identification and management, and grievance mechanisms, as well as security, with provisions adapted from the Voluntary Principles on Security and Human Rights.^[17]

Despite these positive developments, more needs to be done. For example, the IFC’s Performance Standards do not address the challenges presented in environments where freedom of expression, assembly, and association are not respected or where community members and others face significant risks for being critical of proposed or ongoing projects. Moreover, the recognition of governments’ human rights obligations is absent from IFI advice on company regulation. The IFC could support improved government regulation by including country-by-country analysis of governments’ realization of this obligation in its annual “Doing Business” report.

All businesses should have adequate policies and procedures in place to identify, prevent, mitigate, and account for their impact on human rights. To meet its human rights responsibilities, a company should carefully assess potential human rights risks, including in its supply chain, monitor the impact of its activities on an ongoing basis, seek to prevent or mitigate harm, and adequately address any adverse human rights impacts it causes or contributes to. Moreover, companies should not issue threats or take actions that might deter affected communities from voicing their concerns about a project or penalize them for doing so. Company management, employees, and contractors should recognize individuals’ right to expression and development, as well as their own potential to gain from such engagement.

Emblematic Example: Reprisals against Human Rights Defenders, Forced Laborers, and Complainants in Uzbekistan, Linked to its Cotton Industry[18]

Although it developed safeguards for forced and child labor when investing in a project benefiting Uzbekistan’s cotton industry, the World Bank and IFC refused to adopt safeguards to allow independent monitors unfettered access to project sites or to prohibit retaliation against monitors, forced laborers, or whistleblowers. Civil society organizations repeatedly told Bank staff that these were critical measures, but staff advised that their legal advisors had told them such covenants were not possible.^[19]

The Uzbek government severely restricts a range of civil and political rights. It regularly impedes independent civil society groups and retaliates against human rights defenders. This makes independent monitoring of labor practices extremely challenging and dangerous.^[20]

In the absence of safeguards, officials threatened to file charges against human rights defenders, put their jobs at risk, and made other threats against them. In some cases the authorities confiscated their research materials or arbitrarily prevented them from traveling in connection with their monitoring work ^[21] For example:

• In December 2015 Dmitry Tikhonov, a journalist and human rights defender who has worked to document labor and other human rights abuses connected to cotton production in Uzbekistan for several years, was forced to flee Uzbekistan after his home office was burned and he faced disorderly conduct and other spurious charges connected to his monitoring.^[22] He now resides outside the country, unable to continue his human rights work.
• On January 11, 2016, an Uzbek court sentenced Uktam Pardaev, a human rights defender who for years has advocated on behalf of victims of corruption and monitored the use of child and forced labor in the cotton sector, to a suspended prison term and three years’ probation for insult, fraud, and taking a bribe, all of which he denies.^[23] He had been in detention since his arrest on November 16, 2015.^[24] Pardaev says police told him that he must adhere to a curfew, travel restrictions, and refrain from human rights work.^[25] Pardaev risks prison if he violates the probation conditions.
• In August 2015 police “invited” an undercover monitor working for the Uzbek-German Forum for Human Rights to the local prosecutor’s office, where the monitor says he was questioned by an SNB agent about attending a training abroad.^[26] The SNB agent told him that they had the right to arrest him for 15 days.
• In October 2016 SNB officers in Karakalpakstan detained an independent monitor who was researching labor abuses in cotton fields benefiting from the World Bank irrigation project. They questioned him for three hours, allegedly releasing him only after seizing the money he was carrying to cover his travel expenses.^[27]
• On November 10, 2016, police in Tashkent detained German journalist Edda Schlager and seized some of her materials, including those containing confidential interview information. They deported her the next day and banned her from returning to Uzbekistan for three years.^[28]
• On November 29, 2016, officials detained, interrogated, and deported Yekaterina Sazhneva, a journalist for the Russian newspaper Moskovsky Komsomolets, the day after she met with human rights defender Elena Urlaeva, and banned her from returning to Uzbekistan for three years.^[29]

Elena Urlaeva, the head of the Tashkent-based Human Rights Alliance of Uzbekistan and a longtime human rights defender, was arbitrarily detained three times during September 2015 while she was monitoring the cotton sector. Two arrests were with journalist and activist Malohat Eshankulova.^[30] On March 9, 2016, Urlaeva was admitted to the Tashkent City Psychiatric Clinic after ill-treatment by the police during the harvest.^[31] The hospital refused to release Urlaeva as planned on May 2, citing “official orders” rather than a medical reason,^[32] but finally released her on June 1, following international pressure.^[33] After her release Urlaeva said that she has remained under constant police surveillance and that police have prevented people from approaching her for assistance.^[34]

In 2016 only Urlaeva and Eshankulova conducted monitoring openly and allege that they suffered frequent harassment, including arbitrary arrest, violence, and destruction of their monitoring information. Urlaeva also reported that she often observed cars parked outside her home, was followed, and that officers from the counterterrorism department visited her home on several occasions to ask about her activities.^[35] On October 6, 2016, police in Buka, Tashkent region, arrested Urlaeva, photographer and translator Timur Karpov, and two French journalists when they visited a cotton field. Police wiped Karpov’s phone, which he says he unlocked under physical threat. Police destroyed all information on Urlaeva’s phone and detained her for 10 hours. She reported that she was beaten in the presence of police by two women and kicked by a uniformed officer while in custody.^[36] On October 9, 2016, police in Alat district, Bukhara region, arrested Urlaeva and Eshankulova after they interviewed students picking cotton. Police allegedly strip searched them, detained them for several hours, and destroyed all of their notes and data on their phones and cameras.^[37] On October 22 police in Akdarya district, Samarkand region, arrested Urlaeva and Eshankulova when they interviewed doctors picking cotton. Police in Buka arrested Urlaeva again on November 5 when she visited the district Department of Education. She said that after she left the department, a man she did not know forced her into a car, took her phone and handed her to the police. She alleged that police held her for six hours, searched her, and erased her phone.^[38]

On March 1, 2017, police detained Urlaeva once again. After reportedly insulting and assaulting Urlaeva, police reportedly summoned orderlies from a psychiatric hospital who forcibly committed her. A doctor told Urlaeva’s relative that there was a court order for the commitment but did not show it to Urlaeva or her relative.^[39]  She said that on March 4 doctors began treatment against her will.^[40] In a video, Urlaeva said she believed authorities detained her in the hospital to prevent her from meeting with representatives of the ILO, World Bank, and International Trade Union Confederation, scheduled for March 2.^[41] The hospital released Urlaeva on March 23, following significant international pressure.^[42]

Bank staff have expressed concerns about reprisals to civil society and indicated that they have shared these concerns with the government.^[43] On occasion, however, Bank staff have declined to raise such concerns.^[44] Government reprisals continue and the Bank has not escalated its response, refusing to publicly condemn reprisals or sanction the government in any way.^[45]