23 April 2024

Vienna, Austria

The Role of Civil Society in the Promotion and Protection of International Human Rights Law and International Humanitarian Law: Supplementary Human Dimension Meeting I | OSCE.

Session III: Shrinking Space: Challenges Faced by HRDs and Civil Society in the OSCE Region

Dear Chairman, dear Moderator, participants of the 1st Supplementary Human Dimension Meeting of the OSCE, please, accept my most sincere words of gratitude for the unique program of this Meeting taking place in Vienna in the face of new risks and disasters in a changing world[1].

Let me start right away with an important request and appeal to the OSCE member states to take innovative, concrete steps to release our colleagues from prisons:

Ales Beliatski from Belarus, founder and Leader of Viasna, Nobel Peace Prize winner[2], as well as members of the Viasna team and partners.

We demand to release Oleg Orlov from Russia, a well-known human rights defender, one of the founders of the Memorial Society, who was imprisoned on 27 February, 2024.[3]

We demand to release Maxim Butkevich from Ukraine, who is in prison in Russia[4].

Support: We also demand that the OSCE participating states repeal the “draconian” laws, the so-called Laws on Foreign Agents or Foreign Representatives, which trample on the international obligations of the states to create and promote an enabling environment for the realization of the fundamental rights of citizens. States must ensure the protection of citizens' rights to freedom of speech, freedom of expression, freedom of associations and peaceful forms of resistance to corruption and violations of human rights and freedoms in the OSCE region, especially in the CA region.

The analysis of recent years shows trends where perpetrators of systemic violations of human rights and freedoms, due to their impunity, commit heinous crimes, including crimes against humanity, as has been the case since the beginning of Russia's aggression in Ukraine.[5] 

The Russian authorities use both overt and covert forms of discrimination against migrants, minorities, women and youth. Violating the Helsinki Principles, they openly attack independent organizations in the OSCE region. Violations of human rights and freedoms are scaling up. The fundamental human rights, the right to life and respect for human dignity are currently under threat due to intimidation of independent NGOs and human rights defenders by the top leadership of the RF.

Bir Duino and its partners will send reports on hate incidents for 2023 from civil society organizations to the OSCE/ODIHR.[6] 

The post pandemic, new risks and disasters, radical climate change, cross-border conflicts, different types of discrimination and violence against girls and women in Afghanistan[7] have a negative impact on the overall situation with the rights and freedoms of girls and women in the CA region.

Example: The authorities in Turkmenistan repeat the Taliban's methods against girls and women, who currently cannot freely leave their house unaccompanied by men, visit beauty salons or drive cars on their own[8].

The time has come for us to unite and strengthen our partnership in the fight against impunity in the OSCE region, using the multilateral approach[9].

In 2024, CIVICUS[10] recorded the lowest percentage of humanity living in open countries where civic space is both free and protected. Today, only two percent of the world's population enjoys freedom of association, demonstration and expression of dissent without significant restrictions, up from nearly four per cent just five years ago[11]. Over the past year, the civic space in Europe and Central Asia has continued to deteriorate. Of the 54 countries, civic space is open in 19, narrowed in 19, obstructed in 7, suppressed in 3 and closed in 6.

I will focus on KYRGYZSTAN: despite the serious concerns of Kyrgyz and international NGOs, international organizations and governments of various states, on 2 April 2024, President of Kyrgyzstan Sadyr Japarov signed the Law on Foreign Representatives, which will enter into force after a while. At the moment the Ministry of Justice, together with a group of experts, is developing a resolution on the application of the Law on Foreign Representatives representatives in practice. Although President Japarov stated in his Facebook post that there would be no persecution of foreign-funded NGOs in Kyrgyzstan, the law stigmatizes human rights organizations and tightens control over them by requiring them to register as foreign representatives and label all their materials as prepared, distributed and/or sent by a non-profit organization acting as a foreign representative. The law also unreasonably tightens state supervision of foreign-funded NGOs, imposing strict reporting requirements, financial monitoring and unscheduled inspections on them. If the organizations do not comply with these requirements, their activities may be suspended and the organizations themselves may be liquidated.[12]

On 14 March 2024 the Jogorku Kenesh (Parliament of Kyrgyzstan) passed the relevant draft law in the third reading without any discussion. This law echoes Russia's infamous "foreign agents" law, first adopted in 2012 and made even more repressive by subsequent amendments that have led to severe persecution of human rights defenders in Russia, forcing many of them to cease their activities or flee the country.

Due to the fact that the ruling party of Georgia announced the re-introduction of a similar draft law to Parliament just a day after the adoption of the Law on Foreign Representatives in Kyrgyzstan, the above-mentioned organizations note with concern that the adoption of such legislation in Eastern Europe and Central Asia is an extremely alarming trend.

Civil society activists of Kyrgyzstan, together with leading partners, have issued a joint statement to development banks: World Bank, European Bank for Reconstruction and Development and Asian Development Bank. We sent a joint Appeal to the IFIs to urge the Kyrgyz authorities to repeal the law, clearly stating that it contradicts the principles and objectives of their development assistance programs and will lead to a review of these programs as their mandate is being violated with the adoption of the Law on Foreign Representatives in the KR[13].

Therefore, given the alarming situation with the Kyrgyz civil society, we request the authorities of the KR to guarantee the right to freedom of association enshrined in a number of international human rights instruments, including article 22 of the International Covenant on Civil and Political Rights. This right includes the obligation of States to refrain from adopting legislation or practices that impede the exercise of the right to effectively seek, receive and use domestic, foreign or international financial resources. For the first time, the Global Women’s Safety and Well-being Index recognized Kyrgyzstan as the most dangerous country for women in Central Asia. The Law on Foreign Representatives also targets women leaders and activists, as more than 25,000 NGOs are registered with the Ministry of Justice of the KR, and more than 90% of them are headed by women.

More than a hundred NGOs of the KR, which signed such a statement, call on the international community to take a firm position of solidarity with human rights defenders of Kyrgyzstan, and, using all political, diplomatic and economic means at their disposal, call on the authorities of the KR (bilaterally and in multilateral forums) to repeal the law on foreign representatives and guarantee the right to freedom of association in the country.

The enforcement mechanism reproduces a similar draft law of 2013, condemned by the Venice Commission of the Council of Europe and the OSCE, but different from the Russian one. It implies that the Ministry of Justice has the right to suspend the activities of a non-profit organization for 6 months, which means, among other things, a ban on most banking operations. The organization will be able to resume its work only by submitting an application to be included in the register of "foreign representatives".

This enforcement mechanism creates arbitrary, unlimited powers for the Ministry of Justice. The indication in the draft law of the possibility to appeal to the court against the decision of the Ministry of Justice to suspend the activities of non-profit organizations does not remedy the situation and does not affect the conclusion about the arbitrary nature of the Ministry's powers. Thus, according to the results of studying more than three hundred decisions of the Judicial Board for Administrative Cases of the Supreme Court of the Kyrgyz Republic, the only possible conclusion is that, considering disputes between individuals and state bodies, the courts of Kyrgyzstan do not apply the Constitution of the KR, norms of international law, principle of legal certainty, control of legitimate purpose, or control of proportionality. Thus, if the law provides that an executive authority may take a decision, judicial control of such a decision will be limited to determining whether the body specified in the law has made it. Kyrgyz courts do not have the tools to subject a contested decision to a content-based review. If the organizations do not comply with these requirements, their activities may be suspended and the organizations themselves may be liquidated.

Recommendation: We know that the OSCE has established a number of mechanisms to monitor the implementation of commitments undertaken by participating States in the field of human rights and democracy (Human Dimension)[14].

One of these mechanisms, the so-called Human Dimension mechanism, can be applied on a case-by-case basis by an individual participating State or a group of States.

It consists of two instruments: the Vienna Mechanism (approved by the Outcome Document of the Vienna Meeting of 1989) and the Moscow Mechanism (approved at the last meeting of the CSCE Conference on the Human Dimension (Moscow, 1991)), which partially represents a further development of the Vienna Mechanism.

The Vienna Mechanism allows participating States, using an established set of procedures, to raise issues related to the human dimension situation in other participating States.

The Moscow Mechanism uses this as a basis and provides an additional opportunity for participating States to form special missions consisting of independent experts to assist in solving specific problems related to the Human Dimension, whether on their own territory or on the territory of another OSCE participating State.

The ODIHR is tasked with providing support for the implementation of the Moscow Mechanism, it maintains a list of experts appointed by some participating States and ready to carry out such studies.

We request the OSCE, after discussing the tragic situation with civil society in the KR, to start consultations for the establishment of such an OSCE mechanism for the Kyrgyz Republic[15] to restore the rule of law and justice in the Kyrgyz Republic.

We invite the OSCE to initiate consultations with leading development banks based on their mandate to support CSOs and strengthen development programming, both country-by-country and across all OSCE participating states[16],  to restore the constitutional rights of citizens, such as the fundamental right to freedom of assembly and association in the KR, including the KR's fulfillment of its international commitments to protect human rights and freedoms in meeting the SDGs[17]  and GSP+ targets.[18] 

On the situation with independent journalists and human rights defenders in the KR:

The promotion and advancement of human rights in Central Asia faced significant obstacles in 2021 and 2022. While the problems caused by the COVID-19 pandemic were gradually overcome, new problems arose related to the abrupt political changes and unrest that occurred in several countries of Central Asia. All this, combined, has created a hostile and unstable environment for those involved in human rights activities. Men and women human rights defenders adapted to these unprecedented conditions and continued to defend human rights but, as a result, were subjected to numerous forms of persecution. Judicial harassment was the most common violation faced by human rights defenders in the CA region. Judicial harassment could include, but is not limited to, (arbitrary) arrests and detentions, the adoption of repressive legislation and policies, as well as all other forms of prosecution, harassment and judicial charges, harassment and trials imposed to interfere with the work of human rights defenders, and/or intimidation and harassment of human rights defenders[19].

“The international community should keep these cases under review, exert strong pressure on the Government of Kyrgyzstan, drawing attention to its abuses, as well as provide direct support and targeted assistance to local civil society, media, human rights defenders, lawyers and journalists. Donors and financial institutions should refer to Temirov's case, among other conditions for respect for human rights and the rule of law, when providing financial assistance and loans to the Government and other State structures and institutions. The Government of Kyrgyzstan should immediately lift the arbitrary charges against Temirov, lift all restrictions imposed on independent media and individual journalists, release human rights defenders still in custody, as well as those detained in the Kempir-Abad case, and lift measures restricting the fundamental freedoms of individuals and NGOs.[20]”

Recent studies show that the rights of women and girls in Central Asia are threatened by religious fundamentalism, migration, political corruption, Russian aggression and the war against Ukraine, the consequences of the pandemic, and the lack of effective legal means to combat discrimination. They face obstacles in the political, economic and social spheres, in addition to high levels of violence, poverty, limited access to health care and education, as well as participation in public life. To address these issues, it is necessary to prioritize gender equality, support organizations fighting inequality, allocate resources for policy change and create a network of experts on regional development and human rights protection. The joint partnership should be aimed at ensuring equal housing conditions, recognizing unpaid domestic work, reducing poverty, and combating discrimination using digital technologies with the participation of global women and youth leaders.

Support for women human rights defenders is vital in the face of new risks and challenges in Central Asia. Meaningful and effective partnerships are possible only if the safety of human rights defenders is ensured, as well as the safety of the resources to enable them to continue their work.

Thus, partnerships should be based on the understanding that the UN is the main duty-bearer at the international level and that Member States are primarily bearers of responsibilities.

Recommendations:

1. The OSCE member states should provide targeted support to assist new networks in Central Asia with gender inclusivity aimed at empowering women, learning lessons from the situation of human rights defenders.
2. It is important for the OSCE, together with the UN and the European Union, to initiate a Law on Equality with the authorities of the CA countries, based on international standards for the protection and promotion of human rights and freedoms.
3.    Provide effective support to human rights defenders inside and outside the states by creating expert groups and solidarity networks to promote the three goals of the OSCE Human Dimension with extensive involvement of new horizontal leadership with an emergency action plan to promote the constitutional rights and freedoms of citizens, as well as influencing the decision-making process at all levels, using a multilateral the approach.[21] 
4. Invite the Mr. Michelle Forst, UN Special Rapporteur on Environmental Defenders to the Kyrgyz Republic[22] to create a new program, including innovative strategies in the format of Climate and the Principles of the Aarhus Convention, together with OSCE experts on climate change.[23] 
5. Taking into account the new risks and disasters of mountain countries, together with the Ministry of Emergency Situations of the KR, a representative of the MFA of the KR responsible for the implementation of the Kyrgyz Strategy for the Development of Mountain Countries, together with GNDR experts, should create an inclusive national action Plan for the prevention of risks and disasters using the principles of localization, from communities to global level.
6. Promote the creation of a horizontal network platform in CA to strengthen the implementation of UN Security Council Resolution 1325 with the involvement of youth leaders and young women and girls from local to global levels in the decision-making process with an innovative approach and participation.

Thank you for your attention. I am ready to answer your questions.

Tolekan Ismailova, Director of the PA “Bir Duino-Kyrgyzstan”

E mail: birduinokyrgyzstan@gmail,com