In Paris this week on an official visit, Azerbaijan’s autocratic President Ilham Aliyev has already scored one photo op. Anyone reading yesterday’s Azeri media could see dozens of photos of Aliyev posing with leaders of top French companies, including Airbus, Suez, and Credit Agricole.

Azerbaijan's President Ilham Aliyev (L) shakes hands with his French counterpart Francois Hollande as they visit a local French school under construction in Baku, May 11, 2014.

© 2014 Reuters

Today, President Hollande will receive President Aliyev and host an official dinner at Palais de l’Elysee. Again, Parisian photo ops abound. But amid the flashing cameras, one has to wonder where Azerbaijan’s repression of critics and the jailing of opponents fits in the new relationship between Paris and Baku?

In the past few years, Azerbaijani authorities have aggressively gone after the country’s once vibrant civil society, jailing dozens of activists, journalists, and political opponents. It also adopted draconian legislation making it virtually impossible for independent non-governmental organizations to operate.

One year ago, as Azerbaijan’s economy started to suffer from falling oil prices, several of those detained on political grounds were released. That was an important first step, but hopes for progress were short-lived.

Many of those released face travel bans or obstacles to their activities. Dozens are still locked up on political grounds, including opposition activist Ilgar Mammadov, despite repeated calls by the Strasbourg-based Council of Europe for his immediate release. And more activists have been thrown in jail. Recently, one of the country’s most popular journalists and bloggers, Mehman Huseynov, was sentenced to two years in prison for allegedly defaming the police, in response to his brave public denouncement of the police abuses he suffered.

When visiting Paris, Brussels, or other European capitals, President Aliyev hopes to get more business opportunities and investment in Azerbaijan. But he prefers to ignore that the people of Azerbaijan want human rights protections, transparency, and good governance. Those standing up for these values are routinely exposed to attacks and harassment.

Yet what more clear message that Azerbaijan’s crackdown cannot be ignored by potential investors than last week’s decision by the Extractive Industries Transparency Initiative (EITI), an international coalition promoting better governance of resource-rich countries, to suspend Azerbaijan – precisely because of its actions against civil society.

President Hollande should reject a narrative that only finance and economy matter in Azerbaijan. Human rights should be as central to France’s foreign policy as other topics.

Hollande should publicly call for the release of Ilgar Mammadov and all those detained in retaliation for their activism and criticism. A failure to explicitly support human rights principles would be the worst message to those unjustly waiting behind bars.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Arvind Ganesan is the director of Human Rights Watch’s Business and Human Rights Division. He leads the organization’s work to expose human rights abuses linked to business and other economic activity, hold institutions accountable, and develop standards to prevent future abuses. This work has included research and advocacy on awide range of issues includingthe extractive industries; public and private security providers; international financial institutions; freedom of expression and information through the internet; labor rights; supply chain monitoring and due diligence regimes; corruption; sanctions; and predatory practices against the poor. Ganesan’s work has covered countries such as Angola, Azerbaijan, Burma, China, Colombia, the Democratic Republic of Congo, Equatorial Guinea, India, Indonesia, the United States, and Nigeria. His recent research has focused on predatory lending practices and governance issues on Native American reservations in the United States. He has written numerous reports, op-eds, and other articles and is widely cited by the media.

Ganesan has also worked to develop industry standards to ensure companies and other institutions respect human rights. He is a founder of the Voluntary Principles on Security and Human Rights for the oil, gas, and mining industries and is a founding member of the Global Network Initiative (GNI) for the internet and telecommunications industries, where he also serves on the board. Ganesan has helped to develop standards for international financial institutions such as the World Bank, and regularly engages governments in an effort to develop mandatory rules or strengthen existing standards such as the Kimberley Process. He serves on the board of EGJustice, a nongovernmental organization that promotes good governance in Equatorial Guinea, and is a member of the International Corporate Accountability Roundtable (ICAR)’s steering committee.

Before joining Human Rights Watch, Ganesan worked as a medical researcher. He attended the University of Oklahoma.

Posted: January 1, 1970, 12:00 am

Mr. Teodoro Obiang Nguema Mbasogo
President of the Republic of Equatorial Guinea
Palacio Presidencial
Avenida de la Libertad
Malabo, Guinea Ecuatorial

Your Excellency,

We write to express our deep concern in response to the unjust arrest and subsequent detention without charge of Ramón Esono Ebalé in Malabo on 16th September 2017, and to urge you to release him immediately.

Mr. Ebalé and two of his friends were stopped by police, handcuffed, and had their mobile phones seized while getting into Mr. Ebalé's sister's car after leaving a restaurant in Malabo. Police then interrogated Mr. Ebalé about his drawings of, and blog posts about members of the Equatoguinean leadership, and told him—in front of his two friends—that he needed to make a statement explaining those drawings and blog posts. It was confirmed by police that only Mr. Ebalé was the target of the arrest, and not his two friends.

Mr Ebalé has learned that he faces potential charges of counterfeiting and money laundering; offences that were apparently never mentioned to him or his friends when they were arrested. Mr. Ebalé’s prolonged detention without charge gives rise to serious concerns that these allegations are no more than a pretext to justify the ongoing arbitrary deprivation of liberty he is being subjected to.

Mr. Ebalé’s extended detention at Black Beach prison without charge appears to be a clear violation of Equatorial Guinean law, which requires charges to be filed within 72 hours of an arrest. A judge has not mandated preventative detention in his case, which under exceptional circumstances would allow the police to hold him without charge for longer, nor does there appear to be a basis for such an order.

Mr. Ebalé, a renowned cartoonist who has been living abroad since 2011, has now spent 60 days in prison. His arrest in Equatorial Guinea—where he returned to renew his passport—has received global attention with calls for his release from fellow journalists, artists, activists, and human rights and press freedom organizations.

As Equatorial Guinea prepares to join the UN Security Council in January 2018, the world is watching the case of Mr. Ebalé closely. We hope that as your country takes this prominent position on the world stage, your government respects all human rights, including the right to freedom of expression, as enshrined in Article 19 of the Universal Declaration of Human Rights.

In this vein, we call on your Excellency, and the judicial authorities in Equatorial Guinea to respect the rights of all artists, human rights defenders, activists, and, more generally, all individuals in Equatorial Guinea who wish to exercise their right to freedom of expression, peaceful assembly and association without fear of being harassed or prosecuted.

To this end, we urge you to order Mr. Ebalé’s immediate and unconditional release from prison. Thank you for your consideration.

Yours Sincerely,

Amnesty International
API Madrid
Arterial Network
Association of American Editorial Cartoonists
Baroness Helena Kennedy QC, Member of the House of Lords, President of JUSTICE
Cartoonist Rights Network International
Committee to Protect Journalists
EG Justice
International Federation for Human Rights (FIDH), within the framework of the Observatory for the Protection of Human Rights Defenders
Freemuse
Human Rights Watch
Index on Censorship PEN International
Reporters Without Borders
The Doughty Street International Media Defense Panel
Transparency International
UNCAC Coalition
World Organisation Against Torture (OMCT), within the framework of the Observatory for the Protection of Human Rights Defenders

Posted: January 1, 1970, 12:00 am

Members of the Boeung Kak Lake community in Cambodia demonstrate at a police blockade in December 2012 on the second day of community activist Yorm Bopha’s trial, on trumped up charges apparently brought for speaking out on forced evictions linked to a World Bank financed project.

© 2012 John Vink/Magnum Photos

The World Bank has spent the past four years overhauling the rules it applies to prevent or mitigate social and environmental harm from the development projects it finances. But human rights are all but absent in its new rules.

These rules, the Environmental and Social Framework, do not acknowledge internationally agreed upon human rights standards. Draft guidance notes released on November 2 that are supposed to provide practical guidance for applying the framework similarly sidestep human rights standards.

Human Rights Watch had hoped that, at the very least, the non-binding Guidance Notes would cite human rights standards and provide borrowers with practical ways to ensure that bank-funded projects don’t harm the very communities they are meant to serve. But they don’t come close to achieving this. In fact, the draft gives borrowers a lot of room to avoid these standards.

The framework requires borrowers to respect international obligations that are “directly applicable to the project under relevant international treaties and agreements,” which should include human rights standards. The guidelines simply repeat the same vague statement instead of explaining where to look for these obligations in international law, how to determine whether they are applicable, and how they have been carried out in practice.

Similarly, the framework’s non-discrimination requirement only refers to “vulnerable and disadvantaged” groups and does not list the well-established protected grounds under human rights law. After repeated requests by nongovernmental groups, the bank issued an accompanying presidential directive listing protected groups, but it still excluded several grounds for protection under human rights law, including discrimination on the grounds of language, sex characteristics, marital or family status, and political affiliation. The guidance notes don’t correct the omission.

Moreover, the notes direct borrowers to make unspecified “special efforts” to ensure that the consultation process includes disadvantaged groups, but they don’t provide concrete advice on how to achieve this, including how to protect project critics from reprisals or to eliminate barriers to community participation.

If the World Bank is serious about building borrowers’ capacity to apply its new Environmental and Social Framework, it should revise the guidance notes to include practical advice on how to do that.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Every few years, a journalist flies to Zambia to write an article about Kabwe, “the world’s most toxic town.

For more than a century, Kabwe was home to an enormous lead smelting plant that belched its dust into the air and poisoned the soil for miles in all directions, heedless of the damage it was causing. The plant closed in 1994, but not much has been done to clean up the worst of it. Residents—particularly children—have continued to get sick and even die from lead poisoning in terrifying numbers.

Ruth Mwitwa (left) and Gloria Kango were convicted of criminal trespass for being on land they have lived and farmed for decades, and now belongs to a commercial farmer. They were sentenced to three months’ imprisonment and were detained with their breastfeeding children. Gloria was also four months pregnant during her detention. 

© 2017 Samer Muscati for Human Rights Watch

The case for corporate accountability is often made by telling stories like these, and it’s not hard to understand why.

Kabwe is a cautionary tale that reminds us what can happen when vast industrial machines are left to their own devices, unchecked and unaccountable. But the spotlight cast on places like Kabwe risks throwing half the story into shadow. When business goes wrong or goes rogue, communities are bled dry by a thousand cuts more often than they are crushed under the weight of one enormous wheel.

When Companies Make Their Own Rules

This is all possible because of a particular kind of lawlessness that “responsible” business actors have grown too comfortable accepting and helping to entrench. And it’s a problem that seems to exist everywhere, in different ways, from India’s mining sector, to Cambodia’s garment industry, to the debt buying industry in the United States.

The problem isn’t just that an approach without robust enforcement of the rules enables massive corporations to run roughshod over rights, but that it creates environments where it becomes impossible to hold the whole vast ocean of smaller companies that never make headlines to any coherent standard.

We live in a moment when many businesses claim to be responsible. But few acknowledge what might be their most important responsibility: to accept that they need to be bound by rules they don’t set themselves. Many leading corporations tout their adherence to meaningful voluntary standards, agreeing to be judged and sometimes audited against them—but not actually bound. Many of the same companies rabidly oppose any move to make those standards mandatory or to enforce relevant legal standards more vigorously.

The government of Ecuador has launched a process that aims to produce a binding international treaty on business and human rights. That’s still at an early stage, and its political prospects as well as its substantive content remain uncertain. In the meantime and apart from that, most of the action in the business and human rights space continues to be around the development and improvement of voluntary standards.

Outside of anti-corruption movements, where there’s been a strong trend toward global regulation, this has been true for decades. Across diverse sectors of the global economy—from private security to garment manufacture and from extractive industries to jewelry—leading companies have come together around voluntary standards meant to set a higher bar than the exceedingly low one they often encounter in law and regulation.

Some of these initiatives are valuable and important, and have improved the behavior and awareness of corporations that touch lives and communities around the world. But there’s no way to force everyone to join these clubs, and their existence doesn’t change the fundamental reality: When companies do business in a regulatory vacuum, they make their own rules.

And too often, governments are quite happy to duck the responsibility that comes with regulation, letting companies police themselves instead. But what’s happening to Zambian farmers right now, far from the glare of any media spotlight, helps illustrate the futility of that approach.

No One to Name or Shame

If you leave Lusaka at dawn, drive right through Kabwe without stopping, and keep driving many more hours north, you’ll arrive in a rural district called Serenje in the late afternoon. It is a remote, economically marginal corner of Zambia that the government thinks it can transform by laying the groundwork for enormous agricultural investments.

The megaprojects government planners envision as the cornerstones of prosperous Serenje farm blocks have yet to materialize. But this doesn’t mean that all is quiet; far from it. Commercial farmers are moving in—not the vast operations planners are still hoping to woo, but operations far larger than the small-scale agriculture most people in the area engage in. They have been lured with the promise of land, and they expect to have it.

The problem is that families—in some cases whole villages—are already there.

This was by no means a problem beyond the Zambian government’s capacity to avoid or, having failed to avoid it, to solve. But instead, the commercial famers have largely been left to their own devices to deal with families whose homes stand in the way of their ambitions.

Almost every one of the resulting stories is a different kind of quiet tragedy, as Human Rights Watch chronicled in a new report. Dozens of families who had always lived simple but comfortable lives suddenly found themselves pressured to accept paltry compensation and many became homeless and destitute. One impatient commercial farmer used tractors and chains to rip down the houses of people who did not want to make way. A group of families spent more than a year living in tents in the forest, waiting for help from government officials who seemed to have forgotten their existence.

For every Kabwe, there are many more Serenjes. And when our researchers dug all the way to the bottom of what went wrong in Serenje, they didn’t find a handful of corporate titans who could be shamed, sued, or persuaded as a way to effect large-scale change. Instead, they found a confusing array of smaller actors whose collective impact on the families around them had been devastating—each in their own uniquely terrible way.

But at root of it all were government officials who didn’t understand or care about their own responsibilities, nodding sympathetically and pointing their fingers at one another.

Zambia has laws and policies on the books that should serve as imperfect but useful tools for managing the situation in Serenje, but everyone is ignoring them. Key local officials were entirely unaware of regulations meant to govern any involuntary resettlement of rural communities. The Zambian Environmental Management Agency struggled to find records indicating whether commercial farmers in Serenje had bothered to conduct mandatory Environmental Impact Assessments.

Business leaders need to acknowledge that being responsible means more than just a deliberately narrow focus on their own immediate behavior. It means accepting the need for tough enforcement of rules that bind themselves as well as others to respect rights they might otherwise threaten. And business leaders need to understand that anything less means helping to entrench an approach that inevitably leads to shattered lives.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

The long-awaited moment has finally come. Ten years after the project was initiated, President Emmanuel Macron will inaugurate the Louvre Abu Dhabi on Saadiyat Island, the so-called “Island of Happiness” in the United Arab Emirates on November 8, 2017. The museum will open to the public on November 11.

Yet while brochures advertise a project whose roots are enshrined in tolerance and diversity, the construction of the splendid museum was tainted with controversies and violations of the human rights of migrant workers on the construction site. Migrant workers make up approximately 90% of the private workforce in the United Arab Emirates.

Human Rights Watch has called upon the French government and the Louvre to publicly pledge to protect workers’ rights and to ban forced labor on the construction site since 2007. Human Rights Watch has published three reports on construction sites of Saadiyat Island, including one on the Louvre Abu Dhabi, before its staff was denied entry to the country in 2014.

Our most recent report, “Migrant workers’ rights on Saadiyat Island in the United Arab Emirates”, released in February 2015, documented a range of human rights violations by employers: unsafe working conditions leading to workplace accidents and deaths, passport confiscations, appalling living and housing conditions, extremely low wages, or sometimes non-payment of wages. Furthermore, the « Kafala », or sponsorship system gives employers tremendous power over their employees and the migrant workers’ rights to association and to bargain collectively on their working conditions are restricted.

The last observations of the International Labour Organisation’s (ILO) Committee of Experts indicate that in 2016, numerous passports were still being confiscated and wages not being paid in the UAE, despite the laws prohibiting these practices. Migrant workers also still suffered sanctions if they went on strike. In 2013, several hundreds of migrant workers were arbitrarily deported and banned from entering the country as a direct consequence of exercising their right to strike. These appalling working and living conditions are also considered to be partially responsible for a rise in suicide among migrant workers.

The pressure exerted by NGO’s and the international community has had a real impact, however: several decrees and resolutions aimed at protecting the rights of migrant workers have recently been enacted. Employers are now required to use Labor Ministry standard employment contracts; and the Kafala system has been partially reformed so employees can legally break their work contract unilaterally, if there has been a contractual breach, without being deported. The ILO has also initiated a program, in cooperation with the government, to train labor inspectors specialized in the protection of migrant workers.

These are positive legislative developments. But it is now crucial to ensure that the laws are carried out by expanding a system for labor inspections. It remains extremely difficult to assess the impact of these laws on migrant workers’ lives and on their working conditions. The crackdown on civil society is so severe that activists have been silenced and few workers dare to voice their concerns. Human Rights Watch and Amnesty International, but also journalists and academics working on migrant workers issues, have been barred from entering the country and cannot follow-up on whether the legal reforms are being carried out effectively.

The construction of the Louvre is completed, and many consider the building to be a technical and aesthetic feat. But it has been accomplished at the cost of human suffering in a country whose rulers appear to still widely despise human rights and suppress any critical voice.

Behind the grand opening of the museum, the rhetoric about tolerance will be especially difficult to swallow, while the United Arab Emirates is, along with Saudi Arabia, one of the main players in the military coalition behind dozens of apparently unlawful strikes, some that may amount to war crimes, that have killed and wounded thousands of civilians in Yemen. The coalition is also exacerbating and making worse the world’s largest humanitarian crisis, for Yemeni civilians, including through its onerous restrictions on aid into the country.

The champagne and Jean Nouvel’s "rain of light" should not make president Macron, his ministers and the cultural community, who are so attached to universal values and their radiance, forget the human cost of this titanic project and the extent of the abuses for which the United Arab Emirates bear responsibility. President Macron should call upon his close partners to stop the suppression of independent voices in the United Arab Emirates. He should also urge the United Arab Emirates to put an end to the coalition’s severe abuses against civilians in Yemen.

 

Bénédicte Jeannerod is the France director at Human Rights Watch

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Worker on APPL tea plantation in Assam, India

© 2015 Komala Ramachandra
The World Bank should fulfill its commitment to protect workers through its investment in tea plantations in Assam, India, six Indian and international nongovernmental organizations said today. In November 2016, the Compliance Advisor Ombudsman (CAO), the accountability office of the World Bank Group’s private sector lending arm, released an investigation report that found low wages, abysmal sanitation, lack of pesticide safety equipment, and inadequate housing on India’s tea plantations – but the bank has since done little to address the problems.

On November 6, 2017, the organizations delivered a petition with more than 67,000 signatures collected by the Care2 social networking website to the International Finance Corporation (IFC), the bank’s private sector arm. The petition calls on the IFC to urgently remedy the situation.

“The World Bank Group is not honoring its commitment to improve the lives of tea workers in Assam,” said Anirudha Nagar, South Asia director at Accountability Counsel, which supports communities harmed by internationally financed projects. “The bank should urgently disclose the audits it is relying on, address the findings of its independent accountability office, and make good on its promise to ensure workers are consulted in a process moderated by an independent third party.”

In 2009, the IFC invested in the tea producer Amalgamated Plantations Private Limited (APPL) with the goal of creating a sustainable worker shareholder program. With more than 155,000 people living on APPL plantations, including 30,000 tea workers, the investment has the potential to achieve a significant development impact. However, the IFC failed to live up to its own goals, including to “support jobs that ‘protect and promote the health’ of workers, and thus provide a way out of poverty,” as the CAO found in its November 2016 report.

“Many workers are afraid to speak out for fear of retaliation from plantation management,” said Wilfred Topno, secretary at Peoples Action for Development. “The 67,000 signatures show public support for their suffering, amplify their voices so the bank will hear them, and shine a light on the problem so employers cannot retaliate in secret.”

The IFC disagreed with several of the CAO’s findings, relying on an audit of the plantations carried out by a third-party organization in 2014, which has never been made public. The IFC then proposed a “draft action plan,” which addresses a limited set of findings it agrees with, and made a commitment to select an “independent third party” to consult with workers on its plan. A year has passed, and there is still no indication a third party has been hired for the consultation process.

In 2017, the same third-party organization that conducted the 2014 audit was commissioned to do another audit of two APPL plantations. Yet again, the process was shrouded in secrecy and the report has not been made public.

“The IFC still invests in tea but has done little to stop the labor and human rights abuses on APPL’s plantations more than a year after the investigation,” said Komala Ramachandra, senior business and human rights researcher at Human Rights Watch. “The IFC should consult with workers and promptly create a meaningful response and action plan.”

In August, advocates for the workers created Project AccountabiliTEA, documenting what they found were the bank’s meager efforts to alleviate the inhumane living and working conditions and its failure to fulfill even the limited commitments it made last year.

“Workers and their dependents deserve what they were promised and what is legally required,” said Jayshree Satpute, co-founder of Nazdeek, which works to bring access to justice closer to marginalized communities in India. “Having workers share in the benefits of the plantation is a good idea, but the way the worker shareholder program was implemented was clearly a failure. The IFC has the chance to make it right and we have tens of thousands of people who agree.”

The petition calls on the IFC to act on the ongoing mistreatment of the tea workers, consult with workers to improve their working and housing conditions, increase wages, and give workers a voice in the management of plantations.

“As an organization that supports tea workers, we are committed to seeking justice for the long term,” said Stephen Ekka, Director at PAJHRA, which advocates for the rights of Assam’s Adivasi population. “To know that we have the support of 67,000 people is incredible and bolsters our resolve to keep going.”

“Employment is a two-way street and should be mutually beneficial for both workers and employers,” said Julie Mastrine, spokesperson for Care2. “Those who have signed the Care2 petition understand this and are urgently demanding the IFC to do more to enter into conversation with tea workers and put pressure on their employer to improve working conditions. No one should suffer at their place of employment.”

Posted: January 1, 1970, 12:00 am

Germany has a growing club of global apparel brands making their supplier factory information public. Unfortunately, KiK is dragging its feet on transparency, and has stayed out of the club.

Transparency in the garment industry about the factories brands use to produce their clothes is important. When apparel brands publish names and key information about their supplier factories, it allows workers and labor advocates to swiftly alert them to unsafe working conditions or labor rights violations. This kind of transparency can even help avert deadly disasters.

Many apparel brands understand this. Since October 2016, a coalition of nine global labor rights groups and unions, including Human Rights Watch, have been advocating for a basic minimum level of supply chain transparency (known as the Transparency Pledge) in the apparel sector.

A garment worker sews clothing in a building near the site of the Rana Plaza building collapse. 

© 2014 G.M.B. Akash/Panos

The global coalition wrote to leading brands that were members of the German Partnership for Sustainable Textiles, inviting them to publish their supply chain information, aligning with the Pledge. The Textile Partnership involves various entities concerned about the issue, including the German federal government, apparel and footwear companies, nongovernmental organizations, and trade unions. It enables brand members to develop a roadmap of what they want to achieve annually, and to report progress.

When it comes to supply chain transparency, KiK is the odd one out. All other Textile Partnership brands we wrote to gave us a positive response. ALDI South, ALDI North, Lidl, Hugo Boss, and Tchibo shifted their position and began publishing their supplier factory information for the first time in 2017. Adidas, C&A, Esprit, and H&M—companies that were already publishing the information—made commitments to fully align their disclosure practices with the pledge. Puma too agreed to publish more details about factories than they were already doing. These companies have proven through their action that they suffer no competitive disadvantage from publishing this information.

In a letter from KiK to Human Rights Watch, the company said: “KiK is an active member of the German Partnership for Sustainable Textiles. We have committed ourselves to fully supporting its goals and objectives. The question of disclosing global supplier lists is currently being discussed in the Textile Partnership. Mandated NGO representatives are part of that discussion. For the time being, however, a binding decision has not been taken.”

Brands have complete freedom to adopt good industry practices if they want to, and don’t need to wait for Textile Partnership’s decisions. In fact, the German Textile Partnership’s Guidelines for Creating Roadmap for 2017 clarify to its members that “[g]oals can also freely be formulated … provided they are related to the key question and the indicators.” In fact, other brands that are members of the Partnership published supplier factory information on their websites.

Using the Partnership to justify its poor decisions not only gives KiK a bad name, but also risks tarnishing the reputation of the Textile Partnership. KiK should drop its excuses, and simply go transparent.

In 2012, a fire ripped through one of KiK’s supplier factories in Pakistan, killing 255 workers and injuring 57. Last year, KiK agreed on a compensation package of more than US$5 million for victims. Paying compensation after a disaster is important and it’s commendable that an agreement was reached. But it’s equally important for companies to do everything in their capacity to make sure that any problems in the factories they source from come to light before they lead to disaster. The best way to make that possible is to make sure workers, consumers and the public at large can find out what brands any given factory is producing. Without that knowledge, brands may not get word of workplace abuses, safety issues and other problems until it’s too late.

If an apparel company stands for workers’ rights, there are no two ways about supply chain transparency. KiK should go transparent and join forces with other German Partnership brands that have already done so, and collectively demand that such transparency be made a mandatory part of brand members’ roadmaps.  

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Teodorin Nguema, Equatorial Guinea's vice president and son of President Teodoro Obiang.

© Getty Images
(Paris) – A Parisian court on October 27, 2017, convicted the president of Equatorial Guinea’s eldest son in absentia of embezzling tens of millions of euro from his government and laundering the proceeds in France.

The court handed down a three-year suspended jail sentence and a suspended €30 million (US$35 million) fine for Teodoro Nguema Obiang Mangue, known as Teodorin, who is also Equatorial Guinea’s vice president. The court seized his assets in France valued at well over €100 million.

“This verdict against Teodorin Obiang is further proof that rampant government corruption in Equatorial Guinea has robbed its people of their country’s oil wealth,” said Sarah Saadoun, business and human rights researcher at Human Rights Watch. “The French government should repatriate the money ensuring it goes to key services where it should have been spent.”

The ruling comes after more than a decade of litigation initiated by two French anti-corruption organizations, Transparency International France and Sherpa. It is one of three cases the organizations brought against high-level government officials of different countries for allegedly laundering “ill-gotten gains” in France. It was the first of the three cases to reach a verdict and the first time a French court recognized non-governmental organizations’ standing to file a criminal corruption complaint.

Because the sentence and fine are suspended, they will only go into effect if Teodorin commits another crime in France. He has 10 days to appeal.

Teodorin has been the subject of a number of international money-laundering investigations, and his flamboyant lifestyle has been widely cast as a symbol of brazen government corruption. The huge amount of money looted by members of Equatorial Guinea’s ruling elite contributes to the country’s severe underfunding of health and education.

In 2012 the US Department of Justice calculated that Teodorin had spent US$315 million around the world between 2004 and 2011 on properties, cars, and luxury goods. This is nearly a third more than the Equatoguinean government’s annual spending on health and education combined in 2011, the most recent year for which there is data. At the time, Teodorin was the country’s agriculture minister, earning an official annual salary of less than US$100,000.

The Equatorial Guinean government has vigorously defended Teodorin, claiming that his actions were legal because of domestic laws that permit ministers to do business with the state through their own companies. The government has never investigated the allegations against him.

The president promoted his son to vice president in June 2016, days after a French court ordered him to stand trial, in an apparent effort to use diplomatic immunity as a shield from prosecution. When that failed, the government unsuccessfully sued France in the International Court of Justice to stop the prosecution, claiming it violated Teodorin’s immunity.

The court decision gives the French government control over millions of euro worth of assets seized from Teodorin, including a 101-room mansion on the exclusive Avenue Foch valued at over €100 million, €5.7 million worth of supercars, and millions more euro worth of art, jewelry, and luxury goods, according to the court decision ordering Teodorin to stand trial. France has no laws providing for the repatriation of recovered assets, but Human Rights Watch and other organizations are urging the government to ensure that the funds are repatriated to the country to benefit the people who are victims of official corruption.

In 2014 Teodorin settled a case with the US Department of Justice, which alleged that he bought a California mansion, private jet, and US$2 million worth of Michael Jackson memorabilia with money stolen from the public treasury. He agreed to pay US$30 million without explicit admission of wrongdoing. The settlement mandates that the funds be repatriated for the benefit of the Equatoguinean people, which US authorities are expected to do soon. Switzerland is currently investigating Teodorin for money laundering, and in December 2016 it seized a luxury yacht worth US$100 million and several luxury cars.

Official corruption is rampant in Equatorial Guinea. In 2004 a US senate investigation found that Washington-based Riggs Bank, which held Equatorial Guinea’s government accounts, transferred millions of dollars to companies apparently owned by government officials, including the president. Three members of a Russian family are awaiting trial in Spain on allegations of facilitating the purchase of homes for Equatoguinean officials with the money siphoned from Riggs bank.

The discovery of oil in the early 1990s catapulted Equatorial Guinea from one of the world’s poorest countries to the one with the highest per capita income in Africa. Yet the government has invested only a pittance in health and education and progress on health and education consistently lag behind regional averages. Some indicators, such as vaccination and school enrollment rates, have deteriorated since the start of the oil boom.

In June, Human Rights Watch published a report documenting how the ruling elite siphon off the country’s oil wealth, particularly by owning stakes in companies awarded hugely inflated public infrastructure contracts. Graft and mismanagement exist on such a large scale that they leave little money for health and education.

“The promotion of the president’s son to vice president in an apparent effort to shield him from accountability reflects the culture of impunity in Equatorial Guinea,” Saadoun said. “With today’s verdict, the impunity for Equatorial Guinea’s ruling elite has finally been pierced.”

Posted: January 1, 1970, 12:00 am

The European Bank for Reconstruction and Development (EBRD) on Wednesday approved a US$500 million loan for a crucial piece of a network of pipelines owned largely by the Azerbaijani government that will transport Azerbaijani gas to Europe. The bank made this decision even though an international oil and gas transparency initiative, endorsed by the bank, recently suspended Azerbaijan because the government would not end its crackdown on civil society groups.

Oil derricks are silhouetted against the rising sun on an oilfield in Baku, on January 24, 2013.

© 2013 Reuters
The bank’s decision was expected earlier this year, but was delayed when Azerbaijan was suspended from, and then quit, the Extractive Industries Transparency Initiative (EITI) in March. EITI is a coalition of governments, corporations, and independent groups that promotes better governance of resource-rich countries by fostering open public debate about how oil, gas, and mining revenues are used. The EBRD has endorsed EITI and is also the only multilateral development bank that has a political mandate, which includes the principles of “multiparty democracy and pluralism.”

The bank appeared to minimize the systematic dismantling of the country’s once vibrant civil society through the arrests and convictions of dozens of activists, human rights defenders, and journalists on bogus, politically motivated charges, as well as the closing of independent media outlets. The crackdown did not spare anti-corruption activists, such as Ilgar Mammadov, a vocal critic of Azerbaijan’s gas industry who had been actively involved in promoting revenue transparency. He’s been in prison for nearly five years on politically motivated charges. The EBRD knew this was happening since at least 2014 when its country strategy for Azerbaijan explicitly acknowledged Azerbaijan’s poor record on meeting its human rights commitments.

The bank claims Azerbaijan will still follow principles of transparency akin to EITI, but this is difficult to fathom given the crackdown on civil society and new allegations of massive corruption. The bank’s decision came just weeks after investigative reporting in The Guardian alleged that Azerbaijan maintained a secret slush fund of about US$2.9 billion that it used over a two-year period to bribe European politicians, including to help whitewash the government’s human rights record. Among those implicated in the scandal is one of the bank’s board members.

The Azerbaijani government is eager to get the pipeline funded. The EBRD could have used its leverage for much-needed reforms. Instead, its endorsement of transparency rings hollow.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Human Rights Watch welcomes the opportunity to provide comments on Australia’s model Modern Slavery in Supply Chains Reporting Requirement. According to the International Organization for Labour, an estimated 40 million people around the world are effectively being held in slavery-like conditions, including forced labor, debt bondage, and human trafficking, making it incumbent upon governments across the globe commit to combatting all forms of modern slavery found throughout supply chains and operations.[1]

We appreciate the Australian government’s desire to build upon its existing commitments to fighting modern slavery through the criteria outlined in its model requirement. However, we are concerned that the new requirement will not have a meaningful impact in many instances of modern slavery as it does not include tangible ways to achieve its intentions or require the implementation of key elements. For example, the proposed requirement would merely rely on companies’ disclosures, rather than mandating supply chain transparency or human rights due diligence through substantive steps to assess, prevent, and mitigate modern slavery risks. In addition, the proposed requirement does not carry penalties for noncompliance, rendering the requirements toothless. We are also concerned that the minimum threshold for application of the proposed requirement is higher than that of other laws, and would thus exclude some of the most problematic sectors.

Finally, the government has failed to guarantee resources to ensure adequate enforcement of the law. For example, the proposal supports the principle of supply chain transparency but is silent when it comes to determining how transparency can be achieved. It is only when companies have guidance on how to be transparent about and best report on their supply chains that workers and their advocates can quickly alert them to labor abuses and seek remedies.

Based on Human Rights Watch’s research and advocacy on human rights in global supply chains, we submit the following recommendations on how to strengthen the proposed law so it can be a serious tool to combat modern slavery in all its forms.[2]

  1. The regulation should require transparency of supply chains and operations.

The Australian government indicates that one of its primary objectives in the model is to “develop and maintain responsible and transparent supply chains.” In the aggregate, the reporting criteria should create greater transparency, but businesses are left “with the flexibility to determine what, if any, information they provide against each of the four criteria and whether to include any additional information.” The government should provide detailed guidance to businesses on how to be transparent about their operations and supply chains.

With the goal of achieving meaningful transparency, Human Rights Watch recommends that the law create a level playing field on transparency by introducing mandatory minimum transparency standards by sector, including identifying and publishing entities along the supply chain. Companies should also be required to disclose any modern slavery found to be present in their supply chains and operations, and disclose their methods of ensuring appropriate remedies.

  1. The regulation should require companies to undertake substantive human rights due diligence.

The proposed law is based on reporting on “modern slavery risks present in the entity’s operations and supply chains” and “the entity’s due diligence processes relating to modern slavery in its operations and supply chains and their effectiveness.” However, the model also clarifies that the Australian government will not in fact mandate “implementing due diligence requirements or broader human rights-based reporting,” leaving human rights due diligence as a recommendation rather than a requirement.

Mandating due diligence would mean that companies identify, prevent, mitigate, and remedy instances of modern slavery in their supply chains, supporting efforts to end abuses in supply chains. Mandatory reporting on meaningful due diligence requirements is also required to promote transparency and foster accountability. This includes enumerating potential modern slavery risks and explaining how to go about identifying them in operations and supply chains and reporting on them in a way that is comprehensible to the public. Without clear guidelines and requirements for due diligence and disclosure, reporting under the proposed law would be limited to information at the discretion of each company, limiting its usefulness and impact in addressing modern slavery.

  1. The size threshold for companies should be lower and apply to government purchasing. Industry-specific requirements should be implemented.

We support the application of Australia’s proposed modern slavery reporting requirement to companies both headquartered and operating in Australia. However, the proposal that the law apply to companies with annual revenues of AU$100 million or more should be eliminated or lowered. While the Australian government says that the threshold is “broadly consistent with other thresholds,” it is considerably higher than that of the United Kingdom, which requires reporting from companies with turnovers of more than £36 million (approximately AU$60 million). It is also higher than Australian thresholds for other regulatory acts. In the Australian Corporations Act of 2001, for example, the financial reporting requirement is set at an annual consolidated revenue of AU$25 million.[3] This illustrates what the Australian government considers to be large companies that can bear the burden of such reporting requirements.

Human Rights Watch recommends the government eliminate or lower the revenue threshold for companies subject to the law, and instead include all industries in which modern slavery is either known to exist or where there is a high likelihood for abuses in supply chains. In the case that the threshold is lowered, the law should be based on aggregate revenue, including that of subsidiaries.

Australia should consider implementing regulation requirements to specific industries that have a historical incidence of modern slavery. The European Union has created industry-specific regulations for conflict minerals and timber, which Australia could use as a template.[4] The United States Dodd Frank Act’s Section 1502 creates regulations regarding conflict minerals, including transparency guidelines for posting information on company websites.[5] The US Congress passed this law to restrict financing of conflict that contributed to an emergency humanitarian crisis in the Congo.[6] Similar logic could be used to combat modern slavery in supply chains. This type of regulation could apply to any high-risk industry, such as textiles, seafood, and tobacco.

Finally, to leave no doubt that the Australian government does not tolerate modern slavery, that it is committed to ethical sourcing, and that it intends to use its own buying power to compel companies to act responsibly, the government should commit to applying these reporting and regulation standards to its own purchasing practices. The Australian government should only procure goods from compliant companies.

  1. There should be penalties for non-compliance with the regulation.

The proposed modern slavery reporting requirement currently has no penalty for non-compliance with the regulation, saying “as in the UK, the Australian Government will not include punitive penalties for non-compliance.” The government suggests that public criticism would be an enforcement mechanism.

Public criticism has not created compliance in the UK. To date, 75 statements have been made to comply with the UK’s Modern Slavery Act. Of these 75, only 22 meet all the legal requirements. Further, only 9 statements meet the legal requirements and report on all the criteria suggested in the UK Modern Slavery Act.[7]

In contrast, the French “Duty of Vigilance” law includes a provision for injunctive relief if companies do not comply with their due diligence.[8] This creates a duty of care for companies to perform due diligence. A similar mechanism in the proposed Australian regulation could push Australian industry toward greater compliance and ultimately reduce the incidence of modern slavery in supply chains.

  1. There should be a civil course of action for modern slavery in supply chains.

Even though the model law requires reporting, there are no legal consequences for companies that fail to do so. The UK has a similar approach, and nongovernmental organizations monitoring its law have found that only 14 percent of companies that submitted reports complied with the basic reporting requirements.

When companies choose not to follow reporting requirements at the expense of workers in their supply chain, the government needs to ensure that workers around the world have a clear path to remedy and justice, including access to Australian courts. Some countries are taking steps to address remedy gaps. For example, the French “Duty of Vigilance” law allows people to bring a claim in court if a company is not following through with the law. Australia should similarly create avenues for redress, such as a civil course of action, for workers harmed by companies that fail to identify and address forced labor and other conditions amounting to slavery in their supply chains.

  1. The Australian government should provide the proper budget and central infrastructure to ensure reporting and promote transparency.

The proposed Australian law should be accompanied by proper budget and infrastructure to publicly periodically report on its implementation. In the textile sector, the Bangladesh Accord on Fire and Building Safety provides a useful model of transparent reporting, which can be built upon.

Companies should also communicate with those countries and business entities tied to the production, export, or import of such goods, what steps they should take to address the use of forced labor, slave labor, child labor, or labor of persons who have been trafficked. The Australian government’s website for reporting should also include guidelines for ways to remedy the use of forced labor, child labor, labor of persons who have been trafficked, and slave labor.

 

[1] Global Estimates of Modern Slavery, International Labour Organization, Geneva, 2017, http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/... (accessed October 17, 2017).

[2] Human Rights Watch has done extensive research and writing on human rights in supply chains, see for example, Human Rights Watch, “Follow the Thread: The Need for Supply Chain Transparency in the Garment and Footwear Industry,” April 20, 2017, https://www.hrw.org/report/2017/04/20/follow-thread/need-supply-chain-tr... “Human Rights in Supply Chains: A Call for a Binding Global Standard on Due Diligence,” May 30, 2016, https://www.hrw.org/report/2016/05/30/human-rights-supply-chains/call-bi... “The Harvest is in My Blood: Hazardous Child Labor in Tobacco Farming in Indonesia,” May 24, 2016, https://www.hrw.org/report/2016/05/24/harvest-my-blood/hazardous-child-l....

[3] Corporations Act 2001, Chapter 2M Financial reports and audits, https://www.legislation.gov.au/Details/C2017C00129/Html/Volume_2#_Toc479... (accessed October 18, 2017). See also http://asic.gov.au/regulatory-resources/financial-reporting-and-audit/pr... (accessed October 18, 2017).

[4] Regulation (EU) 2010/995 of the European Parliament and of the Council as of 20 October 2010, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:295:0023... (accessed October 17, 2017); and Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2017:130:FUL... (accessed October 17, 2017).

[5] U.S. Securities and Exchange Commission, Fact Sheet, Disclosing the Use of Conflict Minerals https://www.sec.gov/opa/Article/2012-2012-163htm---related-materials.html (accessed September 21, 2017).

[6] Id.

[7] “Register of slavery & human trafficking corporate statements released to date to comply with UK Modern Slavery Act”, Business & Human Rights Resource Centre https://business-humanrights.org/sites/default/files/documents/CORE%20BH... (accessed September 19, 2017).

[8] “French Companies Must Show Duty of Care for Human and Environmental Rights” http://www.jdsupra.com/legalnews/french-companies-must-show-duty-of-care... (accessed September 19, 2017).

Posted: January 1, 1970, 12:00 am

The recent release of 200,000 university students and some teachers and medical workers from forced labor picking cotton in Uzbekistan came shortly after World Bank President Jim Yong Kim’s first meeting with the country’s new president, Shavkat Mirziyoyev, on September 20, 2017. Kim urged Mirziyoyev at that meeting to end forced labor.

While more comprehensive reforms are necessary, Kim’s strong and public stance, and its near immediate impact in Uzbekistan, shows that the World Bank can convince governments to stop abusing human rights abuses when it chooses to use its leverage.

It isn’t all good news though. The government is making some of the recalled teachers and medical workers pay a significant chunk of their already low salary to hire people to replace them in the fields, and police have continued to arrest independent monitors and journalists documenting labor abuses. While some teachers and medical workers have been recalled, others have been instructed to lie about their professions and to remain in the fields or have been sent back to the fields after a short reprieve.

These developments came after the release of our joint report with the Uzbek-German Forum for Human Rights documenting systematic forced labor and ongoing child labor in Uzbekistan’s cotton sector, including in World Bank project areas. We found that the government threatened people’s jobs, welfare payments, or access to university education if they refused. Kim said the facts that we provided allowed him to have a “very honest, direct conversation” with Mirziyoyev.

The Uzbek government should stop forcing anyone to work in the cotton fields, not charge people to hire “replacement workers,” and allow human rights defenders to monitor and report on the labor situation in the fields without fear of reprisals. It should also address the root causes of forced labor, including by raising the state-established procurement prices for cotton and other agricultural products to reflect the costs of the market rate for voluntary labor and by making the country’s opaque agriculture fund, the Selkhozfond, transparent and accountable.

The World Bank should press the Uzbek government to make these reforms and allow unfettered independent monitoring. It should suspend projects linked to forced and child labor until government-led abuses in these project areas stop and engage a monitor completely independent of the government to identify abuses linked to bank projects.

Recognizing the significant impact of his intervention with the Uzbek government, Kim should urge other governments to address serious rights abuses that undermine development. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Members of the Boeung Kak Lake community in Cambodia demonstrate at a police blockade in December 2012 on the second day of community activist Yorm Bopha’s trial, on trumped up charges apparently brought for speaking out on forced evictions linked to a World Bank financed project.

© 2012 John Vink/Magnum Photos

When things go wrong with World Bank Group’s projects, it is often members of the community impacted who expose these problems. But they do so at their own risk. Finally, one of the bank’s accountability bodies is taking steps to make it safer for such members when they speak out.

Here’s why this move is so important: When a Cambodian villager filed a complaint about a World Bank Group project, a government official allegedly said, “Don’t be too strong in your advocacy, otherwise you may end up in prison.”

“I was afraid,” the community member said, “but felt I had to continue, because I was doing the right thing.”

This echoes other findings we documented in a 2015 report on whistleblowers in bank-financed projects. In 18 of the 34 cases we looked into, people who complained said they had been threatened or faced retaliation that they believed was linked to their concerns about the project. We found the bank does little to make sure it is safe for people to share their views about projects, and to prevent retaliation against these people.

Last week, the Compliance Advisor Ombudsman (CAO), the independent body within the World Bank Group’s private sector lending arm, the International Finance Corporation, published an “approach” outlining how it will work to prevent and respond to threats and reprisals. This is after the Inspection Panel – the accountability body for the bank’s public sector lending arms – released in March 2016 guidelines to reduce retaliation risks.

These efforts to make it safer for people to expose problems in World Bank projects are welcome, as are pledges from other international financial institutions’ accountability bodies to follow suit. Still, the CAO approach does not describe actions it will take in partnership with people who are retaliated against.

The World Bank and other financing institutions, which have far more power to prevent and respond to reprisals than their accountability bodies, should commit to taking stronger actions themselves. The Dutch development bank, FMO, which published a position statement on human rights that addresses human rights defenders last month, is the only financing institution to have overtly tackled these issues.

The World Bank says that it takes “all reports regarding harassment of independent monitors very seriously.” It should back up these words by working with its clients to make sure it’s safe for people to share their views about its projects, monitoring for threats, and responding strongly whenever reprisals occur. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

The Criminal Justice Policy Program at Harvard Law School (CJPP) and Human Rights Watch (HRW) thank you for this opportunity to provide input in advance of your visit to the United States as the Special Rapporteur on Human Rights and Extreme Poverty. Our organizations hope to demonstrate how two common features of the United States criminal justice systems–money bail and exorbitant fees and fines–violate the rights of vulnerable defendants and at the same time exacerbate poverty, including extreme poverty.

Since the Special Rapporteur’s last visit to the United States, there has been a significant evolution in both our understanding of the harms from and in the momentum for reform associated with these two issues. Yet, much remains to be done as states and localities entrap poor defendants in cycles of debt, probation, and incarceration. The harms are widespread and disproportionately impact minority communities.

Many jurisdictions motivated by revenue-raising shift the costs of the criminal justice system to the poorest instead of passing politically unpopular tax increases. Unable to pay and confronted by court systems that often seem bent on ignoring that fact, individuals face the real threat of incarceration, often because of minor offenses. Many individuals are then left with damaged credit and in some states are denied the right to vote until their debts are paid. It is no surprise that many individuals rely on their families and communities to help pay their debts, and this reality further expands the circle of people who suffer harm. These systematic failures to protect political and civil rights exacerbate and help entrench poverty in communities across the country, especially minority communities that are targeted by aggressive policing.

I.                   Introduction

After a police officer in Ferguson, Missouri shot and killed Michael Brown, the Department of Justice released a report exposing how the city routinely and disproportionately targeted poor, black residents with high fees and fines on low-level offenses, and then enforced those debts through judicial authority, warrants, and incarceration. As of December 2014, over 16,000 people had outstanding arrest warrants in a city with a total population of approximately 21,000.[1] The Ferguson Report concluded that these practices violated the Constitution and fed deep community-police mistrust as the city’s courts and police used residents to generate revenue.[2]

There is evidence that policies and practices of charging exorbitant fees and fines and harsh enforcement exist across the country. There have been some recent lawsuits challenging the constitutionality of such practices that have resulted in settlements, compensation to plaintiffs, and legal reforms.[3] Additional lawsuits are pending.[4] We believe that such practices are prevalent, requiring further litigation, regulation, and legislative reforms.

Policymakers have taken interest. In 2016 the Conference of Chief Justices and the Conference of State Court Administrators formed a National Task Force on Fines, Fees and Bail Practices “to address the ongoing impact that these legal financial obligations (LFOs) have on economically disadvantaged communities.” [5] Various states passed laws[6] and amended court rules[7] to address these issues, and additional bills are pending in state legislatures across the county.[8] Yet much remains to be done.

II.                  Poor Individuals are Increasingly Burdened with High Fees and Fines

Over the last 40 years, as the United States criminal justice system ballooned, so too did the costs of funding that system. It also became increasingly difficult for state houses across the country to balance budgets. States were reluctant to raise taxes, leading many to charge individuals in the criminal justice system various fees to fund the criminal justice system and surcharges to fund the state’s costs more broadly. Many also increased fines, or penalties.[9] Taken together, “fees and fines” can accumulate quickly, resulting in huge debt burdens for individuals. [10] Research shows that they are imposed with increasing frequency.[11] Georgia collected 20 percent more fees and surcharges in 2014 than in 2005[12] and in Illinois, attorney fee revenue grew over 150 percent in certain counties between 2001 and 2009.[13]

What’s more, many courts do not meaningfully consider an individual’s ability to pay when imposing or collecting fines, fees, and surcharges, and some do not consider it at all. Judges are either unable or unwilling to waive certain fees and fines, or to tailor payment to the individual’s ability to pay.[14] A Brennan Center for Justice (“Brennan Center”) study of fifteen states concluded that none had adequate mechanisms to reduce criminal justice debt based on ability to pay.[15]

The US Supreme Court held in Bearden v. Georgia that a sentencing court cannot incarcerate an individual who has “made sufficient bona fide efforts to pay” unless alternate measures are not adequate, and also stated that the court should evaluate “the entire background of the defendant in order to tailor an appropriate sentence for the defendant and crime.”[16] Unfortunately, many states and municipalities have not heeded Bearden, and do not pay meaningful attention upfront to ability to pay. Individuals leave court with significant debt, and still face jail time when they cannot afford to pay their fines and fees. Further, the individuals involved in the United States criminal justice system are disproportionately poor and from minority groups, making the impact of these systemic failures particularly acute.[17]

Similarly, nearly all states use the money bail system, in which they require defendants to pay money to be released from jail prior to trial. In theory, this system works as a way of securing defendants’ appearance at trial and/or deterring them from committing further crimes while awaiting trial. In practice, many innocent people who a court has determined do not pose a flight risk or a threat to public safety are held in jail simply because they cannot afford bail.

For example, from 2011-2015, nearly a quarter of a million people were held in California jails due to their failure to pay bail though were ultimately never charged for a crime.[18] Only a small fraction of those held pretrial can afford to pay the full bail amount, which is returned at the end of the case. Others, to the extent that they can come up with the money, pay fees to bail bondsmen to buy their pretrial liberty, which are never returned regardless of the outcome of the case.

The median bail amounts set in California are five times the national median, but even when bail is set at relatively low levels, it is the poor who suffer the most. For example, a 2008 Human Rights Watch report showed that in the overwhelming preponderance of cases in New York City that had bail set at $1,000 or less, the defendants were jailed because they were unable to post bail.[19]

Individuals who cannot afford bail or a bail bond must wait in jail, with significant impact on their ability to effectively fight their cases. People who can afford to bail themselves out of jail can take their time to effectively prepare for trial, including conducting investigations, locating witnesses, meeting with attorneys, among many other advantages. Pretrial detention of people unable to afford bail may lead them to plead guilty regardless of actual guilt. People in custody plead guilty to receive probation sentences and release from jail rather than stay in to contest their cases.[20] Unnecessary pretrial detention also leads to a host of negative outcomes for detainees including loss of employment, loss of housing, and even loss of custody of their children.[21] Such laws and practices often violate the prohibition against arbitrary detention, the right to equality before the law, and the need for pretrial detention decisions to be made on an individualized basis.[22]

Policing that focuses more aggressively on poor and minority communities, including “broken windows” style enforcement, in which officers systematically arrest and cite people for minor crimes, and criminalizing homelessness intensifies the inequities of the abuses of fees and fines and money bail.

III.                Harsh Enforcement Mechanisms Can Perpetuate or Cause Poverty

States resort to aggressive tactics to collect criminal debt. Payment plans, when they exist, are not always fair or effective. Most states offer limited community service options in lieu of criminal justice debt,[23] and these programs can also lead to a spiral of debt and incarceration if not implemented with care.[24] Courts often impose additional fees for non-payment, such as interest or late fees, “collection fees” (payable to debt collection agencies), and fees for entering into a payment plan.[25] For example, Florida allows a 40 percent surcharge on debt, and Alabama charges a 30 percent collection fee.[26] These “poverty penalties” turn an individual convicted of a crime into a permanent debtor.

Many states and counties use probation sentences to collect fees and fines and to pass the cost of probation supervision on to the individual, compounding financial obligations with particularly devastating impacts for those already living in poverty. Further, several states authorize local governments and courts to use private probation companies to supervise low-level offenders and to collect fees and fines. Probation companies offer their services to courts free of charge in return for the right to collect fees from probationers. The conflict of interests arising out of this arrangement, combined with little state regulation and oversight, exacerbates collection abuses.[27] Many states permit extending probation terms for failure to pay debts, even if all other probation conditions are met.[28] Individuals who have had their probation extended must continue to report to their probation officer and fulfill other probation conditions that may interfere with employment and family responsibilities. These “poverty traps” inhibit an individual’s ability to make a living or meet basic needs and obligations. Worst yet, as demonstrated in the Ferguson report, fees and fines lead to increasing consequences for people who are unable to make payments.

One such consequence is suspension of an individual’s driver’s license for failure to pay court costs.[29] In 2016, a lawsuit was filed against the Virginia Department of Motor Vehicles challenging this practice; according to the Virginia DMV, one in six licensed drivers were under suspension for nonpayment of fines and court costs.[30] Individuals with suspended licenses in areas where public transportation is not available face the impossible choice of driving without a license or foregoing essential life activities such as going to work, getting to doctor’s appointments, and transporting their children to school. Aggressive collection tactics can result in additional offenses. For example, an individual whose driver’s license is revoked but needs to drive to work faces severe criminal penalties for driving with a suspended license.[31]

In many states individuals face imprisonment for failing to pay criminal justice debt. There are various paths to debtor’s prison: (i) revocation of parole or probation;[32] (ii) incarceration through civil or criminal enforcement proceedings; (iii) opting for jail instead of paying court-imposed debts; and (iv) arrest and pre-hearing incarceration.[33] This comes at significant human cost–even an arrest or short stay in jail can result in job loss and disruption in family responsibilities.[34]

IV.    Even After Debt is Paid, Individuals and Families Face Consequences

Bail, fees, and fines have their own collateral consequences. Post-conviction, several states report lack of payment of criminal debt to credit agencies, resulting in damaged credit scores that create hurdles to finding and maintaining housing and employment.[35] Individuals often rely on family and community to make bail to secure pre-trial release, and one report found that 70 percent of individuals in New York and New Jersey relied on family and friends to make ends meet because of fines and fees.[36] Individuals with criminal justice debt often do not have a voice to challenge these policies: many states suspend the right to vote until one has paid off criminal justice debts.[37]

V.      Human Rights Implications of Bail and Criminal Justice Debt

The revenue-focused implementation of criminal justice fees and fines unfairly prejudices the indigent and implicates basic human rights of poor Americans.

First, the ICCPR commits its parties to respect the civil and political rights of individuals. Article 9(1) of the ICCPR provides that “[e]veryone has the right to liberty and security of person.” Under Article 9, “deprivation of liberty must be authorized by law,” “must not be manifestly unproportional, unjust or unpredictable,” and must not be arbitrary.[38] Incarcerating indigent defendants for failing to pay fees and fines—without opportunity to demonstrate their inability to pay as required under US law—constitutes arbitrary detention. So too can incarceration resulting from prohibitively high bail.

Article 11 of the ICCPR prohibits imprisonment “merely on the ground of inability to fulfill a contractual obligation,” including failure to pay debts. Some national courts have read Article 11 as imposing requirements that debtors can only be imprisoned for failure to pay that was willful rather than due to inability to pay.[39] Pre-trial detention and bail systems whose practical result is to keep people in jail because they cannot afford to pay also implicate Article 9(3) of the ICCPR, which provides that pre-trial detention “should not be the general rule.”[40]

The ICCPR also affirms equality and the prohibition of discrimination. The imposition of exorbitant bail and criminal justice debt has disproportionate impact on people living in poverty, and in many US states, also has racially disparate outcomes.

[1] U.S. Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (2015) at 5, https://www.justice.gov/sites/default/files/opa/press-releases/attachmen....

[2] Id. at 6, 55.

[3] See, e.g., Bell v. City of Jackson, No. 15-732, Dkts. 13, 14 (S.D. Miss.); Foster v. City of Alexander City, No. 15-647 (N.D. Ala.); Jenkins v. City of Jennings, No. 15-252 (E.D. Mo.); Fuentes v. Benton County, No. 15-2-02976-1 (Wash. Sup. Ct.); Kennedy v. City of Biloxi, No. 15-00348 (S.D. Miss.); Edwards v. Red Hills Community Probation, LLC et al., No. 15-67 (M.D. Ga.); Rodriguez v. Providence Community Corrections, Inc., No.3:15-cv-01048 (M.D. Tenn.).

[4] See, e.g., Thomas v. Haslam, No. 17-00005 (M.D. Tenn.); West v. City of Santa Fe, No. 16-309 (S.D. Tex.); Brown v. Lexington County, No. 17-01426 (D.S.C.).

[5] See generally http://www.ncsc.org/Topics/Financial/Fines-Costs-and-Fees/Fines-and-Fees.... Some state judiciaries have formed similar task forces.

[6] See, e.g., Colo. Rev. Stat. § 18-1.3-702 (2016); La. HB 249 (2017).

[7] See, e.g., Adopted Rules, 41 Tex. Reg. 6667; Mo. Sup. Ct. R. 37.04A (2016).

[8] See generally http://gaveltogavel.us/category/special-edition/. For more examples of state action, see National Center for State Courts, https://public.tableau.com/profile/publish/FFBP2_0/ActivitiesByType#!/pu....

[9] See, e.g., Criminal Justice Policy Program, Harvard Law School, Confronting Criminal Justice Debt, A Guide to Policy Reform 6 (2016) (hereinafter “Policy Guide”), http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-FINAL.pdf (defining specific financial penalties imposed).

[10] See, e.g., Alicia Bannon et al., Brennan Ctr. for Justice, Criminal Justice Debt: A Barrier to Reentry 7 (2010), http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fin... (basing conclusions on 15-state survey of LFO practices); Alexes Harris et al., Drawing Blood From Stones: Legal Debt and Social Inequality in Contemporary United States, 115 Am. J. Soc 1753, 1758 (2010), http://faculty.washington.edu/kbeckett/articles/AJS.pdf.

[11] Harris et. al., Drawing Blood from Stones, at 1769 (finding that in 2004 66% of prison inmates convicted of at least one felony offense had been assessed monetary sanctions, compared to 25% in 1991).

[12] Alexes Harris et al., Monetary Sanctions in the Criminal Justice System 52 (2017), http://www.monetarysanctions.org/wp-content/uploads/2017/04/Monetary-San....

[13] Id. at 84.

[14] Brennan Report at 13.

[15] This study focused on state courts. Id.

[16] Bearden v. Georgia, 461 U.S. 672.

[17] See, e.g., The United States Commission on Civil Rights, “Targeted Fines and Fees against Low-Income Communities of Color: Civil Rights and Constitutional Implications,” September 2017, http://www.usccr.gov/pubs/Statutory_Enforcement_Report2017.pdf, and Larry Schwartztol, “The Role of Courts in Eliminating the Racial Impact of Criminal Justice Debt,” 2017 Trends in State Courts, National Center for State Courts, http://www.ncsc.org/~/media/Microsites/Files/Trends%202017/Eliminating-R....

[18] “‘Not in it for Justice’: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People,” Human Rights Watch, April 11, 2017, https://www.hrw.org/report/2017/04/11/not-it-justice/how-californias-pre....

[19] “The Price of Freedom: Bail and Pretrial Detention for Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010, https://www.hrw.org/report/2010/12/02/price-freedom/bail-and-pretrial-de....

[20] For a more in-depth discussion of the money bail system in California, see ‘Not in it for Justice’: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People;” Criminal Justice Policy Program, Harvard Law School, Beyond Money Bail: A Primer on Bail Reform (2016) (hereinafter “Bail Reform Primer”), http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf.

[21] Bail Reform Primer at 7.

[22] “‘Not in it for Justice’” and “The Price of Freedom.”

[23] Brennan Report at 13-15.

[24] CJPP Policy Guide at 21-22.

[25] Brennan Report at 17-18.

[26] Id. at 17.

[27] “Profiting from Probation, America’s ‘Offender-Funded’ Probation Industry,” Human Rights Watch, February 5, 2014, https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offen....

[28] Brennan Report, at 25.

[29] Id. at 24.

[30] See Statement of Interest of the U.S., Stinnie et al. v. Holcomb, No. 16-00044 (W.D. Va. Nov. 7, 2016) at 4.

[31] Id. at 24.

[32] Many states make fees and fines a condition of supervision. Failing to meet a single probation condition can lead to a probation violation charge, arrest, and jail time.

[33] Brennan Report at 20.

[34] Brennan Report at 27-28.

[35] Id., and The United States Commission on Civil Rights, “Targeted Fines and Fees against Low-Income Communities of Color.

[36] Mitali Nagrecha et al., Center for Community Alternatives, When All Else Fails, Fining the Family: First Person Accounts of Criminal Justice Debt 19 (2015), http://www.communityalternatives.org/pdf/Criminal-Justice-Debt.pdf (including first person narratives of the family impact of criminal justice debt).

[37] Brennan Report at 29.

[38] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (Arlington: N P Engel Publisher, 1993), p. 172-73; accord Van Alphen v. the Netherlands, Human Rights Committee, Communication No. 305/1988, U.N. Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8.

[39] See, e.g., McCann v. Judge of the Monaghan District Court and Others, High Court of Ireland, 2006 4300P, Judgment, June 18, 2009, http://www.bailii.org/ie/cases/IEHC/2009/H276.html.

[40] “‘Not in it for Justice.’”

Posted: January 1, 1970, 12:00 am

Kentucky is one of several US states that allows private companies to supervise people on probation and requires people to pay companies for that service. Based on its experience researching the industry, last week, the American Civil Liberties Union (ACLU) of Kentucky released a report describing how opaque the industry is, and called for either ending the use of private probation in the state or implementing stronger regulations.

Human Rights Watch’s own research in other states has shown how a lack of transparency around the practices and finances of probation companies can allow abuse to proliferate unchecked, with devastating consequences for poor offenders.

Kentucky has six companies operating in at least a quarter of its counties, the first of which started operating in 1989. It wasn’t until 2000 that Kentucky took any steps to regulate private probation, though even then there was no way to ensure that companies were following the rules.

Over the past three years the ACLU of Kentucky has made multiple attempts to examine the state’s use of these companies. The ACLU’s attempts in 2015 to request information from judges about private probation companies – records judges were meant to collect under the state’s rules – yielded no results. Private probation companies also refused to provide details, saying they weren’t subject to the state’s open records laws.

New, more stringent private probation rules have since taken effect. In 2017 in partnership with Human Rights Watch, the ACLU sent new requests to a hundred district court judges about their use of private probation. This time, about 70 judges responded, showing varying use across the state with roughly a quarter of Kentucky’s counties using private probation. In one county, judges in the same courthouse took differing approaches to probation: while one uses a private probation company in certain types of cases, another judge does not require any kind of supervision for low-level offenders, meaning no additional fees. The fees private probation companies charge to people under their supervision also varied from county to county.

Despite a higher response rate, information on the number of people supervised by probation companies, the total each person pays for their supervision, and the outcomes of their cases were not available as Kentucky does not require courts to track this information.

The uneven use of private probation across the state means starkly different experiences for people in Kentucky’s criminal justice system. As a result, the ACLU is recommending ending the use of private probation, short of which it calls on the state to ensure greater transparency, regulation, and oversight of the industry. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am