Human Rights Watch Submission re Human rights defenders and civic space in the context of business activities

Human Rights Watch Submission: Recommendations on Human Rights Defenders and Civic Space in the Context of Business Activities

I.                   Introduction

Human rights defenders and civil society are instrumental in highlighting the human rights responsibilities of business and of development finance institutions. In the experience of Human Rights Watch, some changes in policy or practice by these institutions have been preceded by human rights defenders exposing the problems related to these institutions. For that reason, the protection of human rights defenders is essential in advancing greater respect of human rights by such institutions.

The UN Guiding Principles on Business and Human Rights (UNGPs) are both the product and response to years of work by human rights defenders and civil society highlighting the need for human rights standards to apply to business. The UNGPs have moved the world closer to consensus around the minimum core human rights responsibilities of businesses. The Voluntary Principles on Security and Human Rights (VPs) establish a solid framework for how extractives companies should seek to grapple with complex security issues. However, this growing landscape of voluntary standards remains, quite deliberately, an accountability-free zone. Companies take up their human rights responsibilities with varying degrees of seriousness and competence, and those that choose to ignore them altogether face few, if any, consequences. Navigating complex and unfamiliar human rights contexts would be made easier for companies with meaningful government oversight and guidance.

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, monitor the impact of their activities on an ongoing basis, seek to prevent or mitigate harm, and adequately address any adverse human rights impacts it causes or to which it has contributed. This is especially important in regards to the protection of human rights defenders, who often face threats or reprisals both by governments and private actors due to their work in exposing abuses and promoting transparency and accountability around business activities. Human rights defenders are also key interlocutors for business if they intend to conduct adequate due diligence and mitigation as the UNGPs require.

Companies should also design early warning systems and other adequate responses to reprisals against human rights defenders and other critics of projects. In high-risk operating environments, in cooperation with independent civil society organizations, companies should create independent oversight mechanisms including third party monitoring and an independent grievance redress mechanism.

II.                 Adverse impact of business activity on human rights defenders and closing civic space in Burma, Honduras, and UAE

Lack of consultation with affected communities in Karen State, Burma

Human Rights Watch has documented land seizures in Burma’s Karen State, and reprisals against human rights defenders who protested the lack of adequate consultation with communities around business activities that affected their livelihoods and lives.[1] This happened in the context of investors and companies acquiring land through questionable means, thus depriving farmers of their land and the opportunity to farm, which is the primary source of their livelihoods. Human Rights Watch found that the companies involved in land expropriation failed to provide villagers with enough notice to be able to contest the confiscation or sale of their land, despite legal requirements to do so. We also documented intimidation and criminal prosecutions of protesters and delays and outright refusals in granting of permits to protest. Those protesting for the return of their land also faced threats of police surveillance. In July 2017 the Assistance Association for Political Prisoners estimated that 39 people were in prison for politically-related offenses around exercising their civil and political rights, and observers noted that a significant number of these political prisoners were imprisoned for their work related to land issues.[2]

Seizure of land and lack of investigations in Honduras

In May 2014 the Inter-American Commission on Human Rights (IACHR) ordered the Honduran government to ensure protective measures for peasant movement leaders. However, in 2016, the murder of human rights defenders in the region continued. Berta Cáceres, the general coordinator of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH) and winner of the 2015 Goldman Environmental Prize for South and Central America, was murdered by gunmen in March after police did not investigate any of the 33 death threats she had reported. Her murder was suspected to be part of a conspiracy with the firm contracted to build the Agua Zarca dam that she had campaigned against. In October two land rights activists of the Unified Peasant Movement of Aguán who were subject to the IACHR’s protective measures were gunned down, leading Human Rights Watch to renew its call on the government to take steps to end impunity for attacks against land and environmental rights defenders.[3]

Human Rights Watch has documented the Honduran government’s failure to investigate abuses by soldiers, police, and security contractors linked to the operations of palm oil companies in the Bajo Aguán region.[4] Private security guards employed by landholding firms were involved in intimidation, threats, and acts of violence such as beatings and killings against peasants. In some cases, government security forces were involved in arbitrary detentions, torture, and forced evictions. According to a report by the National Human Rights Commissioner of Honduras, between 2009 and 2012, 92 people were killed in land disputes in the Bajo Aguán region, and most were members of peasant organizations, but a lack of official investigations made it virtually impossible to hold perpetrators or their sponsors to account. We witnessed a high level of distrust that characterized peasant organizations who saw the government as incompetent and possibly collaborating with private landholding firms.

Human Rights Watch documented how private security firms were largely employed by private landholding firms in Bajo Aguán and other rural areas. We investigated 29 killings, 13 of which suggested the involvement of private guards. The allegations of such abuses by private security providers were so serious that the World Bank’s Compliance Advisor/Ombudsman (CAO), the accountability mechanism for the International Finance Corporation’s (IFC) private sector lending activities, triggered an audit of IFC lending to the palm oil company Corporación Dinant. The audit concluded that the IFC had not complied with its performance standards, including security standards that draw on the VPs. In response, under much pressure from Human Rights Watch and other organizations, the IFC suspended further disbursements to Corporación Dinant.^[5]

Abusive digital surveillance used against prominent human rights activist in the United Arab Emirates and elsewhere

On March 20, 2017, the United Arab Emirates (UAE) government detained Ahmed Mansoor, winner of the 2015 Martin Ennals Award for Human Rights Defenders, pending charges related to his activity on social media and in apparent violation of his freedom of expression. Upon Mansoor’s arrest he was not allowed access to his family or to a lawyer. On March 28 a group of United Nations human rights experts called on the UAE government to release him immediately, describing his arrest as a “a direct attack on the legitimate work of human rights defenders in the UAE.” His use of Twitter to call attention to human rights violations in the region is being called a “cybercrime,” based on alleged violation of the UAE’s 2012 repressive cybercrime law, which has resulted in the imprisonment of numerous activists for long prison terms and with hefty financial penalties.[6]

Citizen Lab, the Toronto-based research group, reported in August 2016 that Mansoor had received phishing text messages on his iPhone.[7] If he had clicked the links, they would have secretly installed spyware that allowed full access to his phone and communications, including access to the microphone, camera, stores passwords, and location data. The software was linked to an Israeli spyware company whose technology was also reportedly found on the cell phones of Mexican journalists and anti-corruption activists.[8] In August 2017 various NGOs called on the company to release its internal corporate governance documents, especially regarding due diligence and violations of terms of use by its customers. The company insisted that their products are solely for the investigation of terror and crime and did not address questions on how it responds to requests for surveillance, such as of human rights defenders, by its government clients.[9] Our research has also documented how foreign telecommunications and surveillance technology firms facilitated abusive surveillance by the Ethiopian government, which targeted political opponents and civil society actors and silenced independent voices.[10]

III.               Recommendations

The following recommendations are specifically directed at companies and are derived from our research on and documentation of human rights abuses linked to business activity, as portrayed in the above examples. Governments’ obligations are not addressed in these recommendations. For businesses to best recognize and address the role of human rights defenders and civic space in their activities, they should consider several levels of responsibilities. First, businesses need to understand the operating environment in terms of the presence of and space for human rights defenders and community criticism of business activities. Second, businesses should ensure that their own activities and those of their affiliates/associates do not contribute to or result in abuses against human rights defenders or other community members. Finally, businesses should be ready to respond to government reprisals against critics of their activities.

Recommendations for businesses on understanding and responding to the environment for freedom of expression, assembly, association and information

• In the course of their due diligence processes, companies should consider the environment for freedom of expression, assembly, association, and information when analyzing risks related to proposed projects and before engaging in business activity. They should outline any restraints on these freedoms that would affect public participation in consultation processes or criticism of their activities. These due diligence processes should be ongoing throughout the period of business activity to capture new or assess ongoing risks and should be conducted in a transparent way, with reports made accessible to all affected people.
• Issues for businesses to consider include:
  • The legislative environment for CSOs, including an analysis of whether CSO legislation meets international human rights standards and whether there are other laws, including anti-terrorism legislation, that are used against activists, journalists, and other critics. The assessment should draw on the analysis of human rights treaty bodies and special procedures as well as independent groups that specialize in this area.[11]
  • Any laws or practices that tend to prevent people from peacefully demonstrating or constrain their exercise of that right in violation of international law, or punish peaceful demonstrators through criminal sanctions or other means;
  • Whether there is a pattern of surveillance of government critics or independent groups;
  • Whether there is free access to information within the country, or whether there are significant obstacles to this including, for example, a pattern of internet blocking;
  • Whether community activists or organizers, people working for CSOs, labor union leaders, journalists, or other government critics are arbitrarily detained or victims of extrajudicial killings;
  • Whether there is direct or indirect discrimination against women or marginalized groups that is likely to undermine their opportunity to participate in development decisions;[12] and
  • Whether there are security issues that are likely to undermine the opportunity of people or groups of people—particularly women and girls as well as sexual and gender minorities—from participating in development decisions, for instance, where homosexuality propaganda laws are in place.
• When companies find that the environment for freedom of expression, assembly, association, and information is restricted, they should implement measures to ensure respect for these rights within the scope of their operations. Companies should convey these measures to affected individuals, communities, and civil society organizations on an ongoing basis. Where the restrictive environment is the result of government practices, companies should engage the government to promote protection of these freedoms in the context of their business activities.

Recommendations for businesses on regulating their own operations and those of their private-sector affiliates/associates

• Companies should support civil society’s ability to operate openly and without undue restrictions, particularly in relation to their business activity.
• Companies should strive to cultivate space for dialogue about their business activities by outlining measures that allow people to safely participate in consultation, and that consultation is free of coercion and duress.
  • Companies should actively offer opportunities for those who may be impacted by projects to be involved in deciding the terms of participation, including the role of supporting organizations like unions or civil society groups, the scope of issues and questions to be addressed, their framing and sequencing, and rules of procedure.^[13]
  • Companies should take necessary steps to facilitate the participation of all affected individuals but especially of traditionally marginalized or often excluded groups, including women, and also allow participation of unions and civil society organizations that represent or support those affected by business activities.
  • Companies should obtain free, prior, and informed consent from Indigenous peoples whose lands or territories and other resources are affected in any way by their business activities.
  • Companies should take additional measures where there is a risk of violence against any participants in consultations, to ensure that they can freely participate without risk of violence, criminal charge, or other reprisal.
  • Companies should proactively and periodically consult those that may be impacted by their activities to identify risks, determine their protection needs, and work with the government and other relevant parties to provide the necessary protection.

• Companies should integrate into their reports and evaluations of projects consideration of measures taken to support meaningful participation of civil society organizations and communities, to prevent reprisals, to monitor and respond to early signs of a risk of reprisals, and to respond vigorously to any reprisals that may occur.
• Companies should commit to not retaliating against project critics, to taking all reasonable measures to prevent retaliation against project critics by other parties, and should investigate all allegations of retaliation.
• Companies should be attentive to displays of concern and discontent regarding proposed and ongoing projects and work with all partners to ensure that people who are expressing their discontent are not stigmatized in any way.
• In order to incentivize staff to take all necessary measures to prevent reprisals and vigorously respond if reprisals occur, integrate the above duties into the job descriptions and performance appraisals of employees, particularly managers.
• Companies should prevent abuses by security personnel, including by:
  • Only employing private security firms that are registered with the government;
  • Ensuring that private security firm personnel and firearm lists are kept fully up-to-date, retaining daily records of which personnel are assigned to which properties, and otherwise being in full compliance with national laws;
  • Cooperating fully and promptly with police, public prosecutors, and investigators investigating crimes allegedly involving members of private security firms;
  • Requiring public or private personnel providing security for the company comply with international standards and be trained effectively on these standards; and
  • Investigating all use of force, holding accountable through administrative sanctions any use of excessive force, and providing detailed information about such investigations to relevant law enforcement agencies so that they can pursue criminal charges as appropriate. 
• Companies should respect the right of affected individuals, communities, and civil society organizations to access and use state-based judicial and non-judicial remedy. Companies should commit to not blocking access to remedy, including through intimidation, legal action, or other forms of retaliation.
• Companies should develop project-level grievance mechanisms that are well-resourced, impartial, effective, protected against corruption, and free from political and other types of influence. Project-level grievance mechanisms should be designed in consultation with affected individuals and communities and other potential users of the mechanism.
  • They should ensure that affected individuals, communities, and civil society organizations have information about how and to whom to submit a complaint, as well as on the established timeline and stages for processing their complaint. In addition, ensure they be provided with particular material of other avenues for complaint should they be threatened or intimidated in any way. They should ensure that such mechanisms be accessible to the most marginalized of those affected, and that special efforts are made to inform marginalized groups of thee mechanisms.
  • When companies’ due diligence indicates they are operating in high-risk environments, they should create independent mechanisms including third party monitoring and an independent grievance redress mechanism, in cooperation with independent civil society organizations.
  • Companies should incorporate procedures early in the grievance mechanism process to identify potential or actual threats against who who have filed or are considering filing a complaint and put in place protection measures as agreed with the complainant.
  • Companies should publicly report on complaints received, while respecting confidentiality and safety of complainants.

Recommendations for businesses on responding to government reprisals and overreach linked to their activities

• Businesses should support civil society’s ability to operate openly and without undue restrictions. To start, businesses should take note of the government’s use of coercion, intimidation, excessive force, or criminal proceedings to clamp down on dissent. They should use their leverage to encourage the government to respect its international obligations, to reform laws that may not be in line with international standards, and to emphasize that governments have an obligation to prevent, investigate, prosecute, punish, and remedy reprisals by non-state actors, including companies, as well as by government officials. Companies’ dialogue with governments on this should include an elaboration of how they will respond to any reprisals including the potential for concrete negative consequences for cooperation should governments carry out, condone, or fail to respond appropriately to reprisals. If governments refuse to respond to companies’ attempts to end government reprisals related to their business activity, the company should seek ways to cease those business activities that cause, contribute, or are related to government reprisals.
• Companies should consistently emphasize to governments that individuals and communities be free to criticize their activities and that such feedback can be an important part of enhancing the impact and effectiveness of their work, and that reprisals against critics or people otherwise involved in such activities will be publicly and vigorously opposed.
• Companies should monitor for public labeling of critics of their activities, immediately address such labeling and emphasize that all input, irrespective of how critical, is important, and ensure that people who express their discontent not be stigmatized in any way.
  • Companies should agree with governments how protests outside their offices or linked to their investments will be policed in a rights-respecting manner, and identify and respond to reports of abuses against protesters.
  • As soon as there is a reprisal of any kind, companies should work with those at risk to develop and implement all necessary protection measures that are sensitive to gender, race, ethnicity, age, disability, gender identity or sexual orientation, or other status or classification, including whether measures should be taken for people closely associated with them or in their household. Protection measures should not hinder those at risk from continuing their work as advocates or human rights defenders. The efficacy of protection measures should be monitored periodically with the close participation of those at risk.
  • Companies should publicly denounce instances of reprisal linked in any way to their activities or the sector they are working in, using messaging that emphasizes the important role that human rights defenders play in improving the work of businesses. These public statements should maintain confidentiality of the individuals facing reprisals if requested by those at risk after considering whether public identification may increase risk and to mitigate future risks.
  • Companies should raise specific incidents of reprisals with senior government officials and actively seek an appropriate response, including the unconditional release of critics detained on trumped-up or fabricated charges.
• Businesses should ensure the existence of safe, accessible, and effective channels for community complaints so that complaints may be raised directly with the company. The design of complaint systems should reflect input from affected individuals and groups, and independent expert advice. Businesses should conduct sustained public outreach to those affected by their activities about all forms of remedy.
• Companies should promote and protect the rights to privacy and freedom of expression, online and offline, even in countries with poor rule of law.
  • Telecommunications operators and Internet companies should refuse to acquiesce to government requests to shut down mobile or Internet networks that civil society actors rely on to access information and communicate.
  • Companies that sell surveillance technologies, including spyware firms and telecommunications vendors, should scrutinize the end user and end uses for potential human rights harm, as well as local laws governing surveillance, before concluding such sales, and refrain from doing business in countries where abuse of surveillance technology is foreseeable.  If companies become aware of abuses of their technology in existing markets, they should immediately cease all support for their products.