Today, 24 June 2019, the UN Human Rights Council (HRC) begins its 41st Session in Geneva. For three weeks, major human rights issues will be debated and acted on, with significant implications for the protection of freedom of expression globally.
Discussions on preventing the abuse of surveillance technologies against activists and journalists, addressing violence and discrimination against LGBTQ people, defending freedom of assembly and association online, and ensuring accountability for the murder of Jamal Khashoggi, are high on the agenda.
The High Commissioner opened proceedings with an update on the theme of “new threats and old challenges.” The speech addressed numerous high priority human rights situations and issues, and announced new plans from OHCHR to increase its attention to the role of businesses in addressing human rights violations online, connected to the UN Secretary General’s High Level Panel on Digital Cooperation. The High Commissioner stressed the importance HRC41 addressing crackdowns on free expression from Sudan to the Philippines. She also stressed that following attacks on religious minorities in Sri Lanka and New Zealand, States must step up to address the root causes of intolerance, including by implementing the UN Secretary General’s newly announced Plan of Action on “Hate Speech”.
ARTICLE 19 will be raising a number of freedom of expression priorities at the Human Rights Council over the coming weeks. This briefing highlights which issues States and other stakeholders will be debating, and what is at stake for freedom of expression at HRC41.
Days after the HRC adopted a detailed resolution on the safety of journalists at its 39th session in September 2018, Saudi Arabia, an HRC Member State, sent a hit squad to its consulate in Istanbul to murder Washington Post journalist Jamal Khashoggi.
Saudi Arabia’s responsibility – under international law – for that murder, is one conclusion of a damning report, following a months-long investigation led by Dr. Agnès Callamard, UN Special Rapporteur on extra-judicial, summary or arbitrary executions. The report also calls on the UN Secretary General to conduct an immediate criminal investigation into the individual responsibility of senior Saudi officials for the murder, including Crown Prince Mohamad bin Salman and Saud Alqahtani. Secretive national trials against 11 unknown individuals that do not meet fair trial guarantees must be suspended.
The release of all detained human rights defenders and journalists in Saudi Arabia is essential to prevent the recurrence of violations, the Special Rapporteur insists. That the murder of Khashoggi is emblematic of an ongoing crackdown against dissent is reason enough for the Human Rights Council to create a monitoring mechanism on the human rights situation in Saudi Arabia, following up on the joint statement led by Iceland at HRC40.
All States claiming to support media freedom must back the Special Rapporteur’s recommendations, both those specific to Saudi Arabia, and those calling for a stronger UN response to future attacks against journalists and human rights defenders.
Moratorium on surveillance tech sales
An immediate global moratorium on the global sale and transfer of targeted surveillance technologies is essential, given the seriousness of the human rights violations that they enable – this is the unequivocal conclusion of David Kaye, the Special Rapporteur on freedom of opinion and expression, in his penultimate report to the HRC as mandate-holder.
The experience of ARTICLE 19’s Mexico and Central America office, who have supported investigations into the use of Pegasus spyware marketed by the NSO group in Mexico, is typical of a global trend Kaye identifies: governments intentionally hacking or otherwise interfering with the devices and communications of activists, human rights defenders, and journalists. Efforts to ensure independent investigations have not clarified the nature of the relationship between the NSO group and the Mexican government. The NSO group is also being sued by contacts of Jamal Khashoggi, who claim the Saudi government used the Pegasus spyware to monitor their communications with the journalist.
The Special Rapporteur’s report draws a clear link between the for-profit activities of these private business enterprises, their opaque collaboration with governments, and the precarious situation facing human rights defenders the world over – even when they flee beyond the jurisdictions of their oppressors. Access to remedies for such violations is almost always elusive.
The human rights responsibilities of businesses, and the international human rights obligations of States, demand greater regulation to ensure effective human rights safeguards, as well as a sea change in approaches to transparency. This cannot be achieved through export controls alone, but requires companies to strictly comply with the Ruggie Principles on business and human rights, and for States to enact legislative frameworks that strictly comply with their human rights obligations.
Such legislation, as well as being clear and accessible, must ensure targeted surveillance is only deployed for purposes consistent with Article 19(3) of the ICCPR, and complies with the requirements of necessity and proportionality. Importantly, this necessitates judicial authorisation for surveillance with limitations on duration, manner, place and scope. It is also essential that public mechanisms for the approval and oversight of surveillance technologies be placed on a legislative footing.
ARTICLE 19 will be calling on States to take heed of the Special Rapporteur’s recommendations, in particular as they consider a resolution on “new technologies and human rights” (led by South Korea) at the 41st Session, and in anticipation of the 42nd Session, where Brazil and Germany are due to introduce a follow-up resolution on privacy in the digital age.
Follow-up on free speech violators: Turkey
Turkey’s cooperation with the Khashoggi probe, while commendable, should not distract from the ongoing crackdown on all oppositional and dissenting voices in the country.
As HRC41 begins, 16 civil society organisers are facing trial in Turkey for organizing the 2013 Gezi Park protests. The trial attempts to link these peaceful protests to the 2016 coup attempt in the absence of any tangible evidence, showing the extent to which the Turkish Government believes it can go to close down civil society voices that challenge its authoritarian rule.
A follow-up report on Turkey by the UN Special Rapporteur on freedom of opinion and expression, David Kaye, revisits recommendations from his 2017 country visit. 10 of 11 of those recommendations remain unimplemented, with more than 140 journalists currently behind bars, among them Ahmet Altan and Nazlı Ilıcak, with many facing trumped up terrorism charges. While the state of emergency was lifted, in line with the Special Rapporteur’s recommendation, more than 30 “emergency decrees” have followed: cementing emergency law into the ordinary legislative framework. Beyond the imprisonment of journalists and targeting of civil society – there has been a mass purge of judges, lawyers, academics, and civil servants in the country.
Turkey’s limited engagement with UN special procedures, in particular in relation to the Khashoggi probe, must not be rewarded with States turning a blind eye to the continuing severe crackdown on dissenting and critical voices in the country.
Any country that cares about press freedom must condemn this dire situation during their Item 2 and Item 4 statements at HRC41.
Online protests must be protected
While the digital age has provided extensive opportunities for the assembly and association rights of those who are digitally connected, the same advances are also rapidly expanding governments’ tools to restrict online civic space.
A new report from the Special Rapporteur on the right to freedom of peaceful assembly and association places this issue firmly on the HRC’s agenda. Normatively, the report is emphatic that much like the right to freedom of expression, the exercise of these rights has an integral online dimension. The enjoyment of these rights requires that States promote and facilitate access to digital technologies, and address inequalities to bridge the digital divide.
The report maps the various means through which States are frustrating and violating the exercise of the rights to peaceful assembly and association. From more sophisticated legislative and technical measures, such as cybercrime laws or attempts to undermine encryption and anonymity, to the blunter tools of internet shutdowns and targeted online harassment campaigns. As the High Commissioner highlighted in her opening to HRC41, such tools are currently being employed in Sudan, and it is essential that States address these.
The rapporteur is also clear that private companies – as “gate keepers” to online spaces – have heightened responsibilities to respect human rights, and the Ruggie principles require specific commitments and policy responses from them. This is particularly relevant to work OHCHR plans on elaborating the human rights responsibilities of technology companies in the digital age, as announced by the High Commissioner at the opening of HRC41.
The report could not be more timely, as in parallel to HRC41, the UN Human Rights Committee begins its consideration of a General Comment on the right to freedom of peaceful assembly, grappling with its digital dimensions. At the same time, it will be crucial for States at HRC41 to support the Czechia-led resolution on freedom of peaceful assembly and association, renewing the Special Rapporteur’s mandate for a further three years.
The establishment three years ago of a UN special procedures mandate on ending violence and discrimination against persons on the basis of sexual orientation and gender identity (SOGI), was a landmark achievement for the HRC. The Independent Expert has brought to the HRC’s attention sound reporting on violence and discrimination against LGBTQ people on the basis of SOGI and other intersecting grounds of discrimination, replacing divisive debate with a more informed, rights-based discussion aimed at securing the equal enjoyment of human rights for all people.
Nevertheless, LGBTQ people continue to face widespread discrimination and violence in all parts of the world. This includes criminalization of their work defending human rights, obstructions to civic organizing and protest, as well as censorship of their opinions, ideas and faith, especially when advocating for equality.
The renewal of this mandate at the HRC is essential to send a clear global message that no one should be discriminated against or face violence because of their sexual orientation or gender identity.
While Eritrea joined the HRC as a member state for the first time in 2019, following progress in making peace with its neighbours and improving bilateral relations, this has not led to a significant increase in cooperation with the UN Special Rapporteur on the human rights situation in the country.
The Special Rapporteur reports that no independent media have existed in Eritrea since 2001, and the government continues to closely monitor and control all other sources of information, with very few Eritreans enjoying access to the Internet or satellite broadcasts. Elderly persons arrested in connected with 2017 protests have since died in custody, and restrictions on freedom of association prevent the functioning of independent civil society organisations. The Special Rapporteur proposes a series of indicators for measuring the progress of the Eritrean government in addressing these human rights violations.
Initial signs that Eritrea is opening to the international community must not be misinterpreted as the signal to reduce scrutiny of the human rights situation in the country. Rather, the HRC must take this opportunity to renew the Special Rapporteur’s mandate, and insist that Eritrea, as an HRC member State, work with the mandate, as well as with OHCHR and other partners, to meet the benchmarks the Special Rapporteur’s report sets out.
Universal Periodic Review
HRC41 will be adopting a number of Universal Periodic Review outcomes. ARTICLE 19 will be focused on ensuring that the governments of Cambodia and Eritrea accept all relevant recommendations on freedom of expression, with our offices in East Africa and South East Asia set to follow progress on their implementation closely.