The Duty to Defend Human Rights Defenders

Does Israel have an obligation to defend the rights of human rights NGOs under international law? A number of recent Knesset initiatives appear to specifically target human rights NGOs operating in Israel. These efforts raise questions about the Israeli government's compliance with international legal obligations that require countries to defend their human rights defenders. In the following article, IDI Senior Fellow Prof. Yuval Shany discusses the international legal framework relevant to this issue, the duty to respect human rights, the duty to ensure human rights, the general obligation to offer effective remedies to victims, and the specific obligation to defend human rights defenders. He also explores the conformity of recent Israeli legislative initiatives with this framework and describes some remedial measures through which the relevant human rights standards may be enforced.

A number of recent legislative initiatives raised in the Israeli Parliament appear to specifically target human rights NGOs operating in Israel. Measures proposed include interfering with the funding of such organizations, monitoring their activities, and limiting certain advocacy strategies that they utilize or may consider utilizing.

The initiatives that can be seen as targeting human rights NGOs include:

• The Law for Prevention of Damage to the State of Israel through Boycott: On July 11, 2011, the Knesset passed the Law for Prevention of Damage to the State of Israel through Boycott 5771–2011. This new law provides for liability in torts for anyone who calls for a boycott of any person or entity by reason of its association with the State of Israel, its institutions, or areas under its control. Those who call for such boycotts may also lose their eligibility for a various types of government funding. Human rights groups have expressed concern about the law's chilling effect on protest campaigns against the Israeli government's settlement policy in the Occupied Territories. Another draft bill pending legislating seeks to impose civil responsibility on those who defame the state or a certain public therein.
• The Establishment of Parliamentary Committees of Inquiry: On January 5, 2011, the Knesset voted to establish two Parliamentary Committees of Inquiry that would examine foreign funding of Israeli NGOs. These committees would investigate funding from foreign foundations and foreign governments received by organizations allegedly involved in de-legitimization campaigns against IDF soldiers, as well as the involvement of foreign entities and governments in funding actions directed against the State and in attempts at organized purchase of its land. Eventually, these initiatives were dismissed by the Knesset on July 20, 2011.
• Private bills limiting funding of political organizations: In 2011, two new draft bills proposing to impose limits on the ability of political organizations to obtain foreign funding and to tax contributions made to such organizations were submitted to the Knesset by MK Ofir Akunis of the Likud party and MK Faina Kirshenbaum of Yisrael Beiteinu. These draft bills were approved by the government's legislation committee in November 2011, but at the request of some Ministers, the government's position will be reconsidered at a plenary government meeting.

In addition to the legislative efforts cited above, in recent years, national advertising campaigns criticizing the New Israel Fund—a major funder of NGO activities in Israel—were launched by right-leaning political organizations in Israel. These campaigns chided the New Israel Fund primarily for its cooperation with the Goldstone report.

These steps—separately and jointly—raise questions about the conformity of the government's compliance with the international legal obligations that Israel has vis-à-vis NGOs operating within its territory. The following article will briefly discuss the international legal framework relevant to Israel's attitude towards its human rights defenders. It will survey the general obligation to respect and ensure human rights, the general obligation to offer effective remedies to victims, and the specific obligation under international law to defend human rights defenders. The article will also explore the conformity of recent legislative initiatives in Israel with this framework and describe some remedial avenues through which the relevant human rights standards may be enforced.

The Duty to Respect and the Duty to Ensure

It is now well accepted that international human rights law imposes two sets of obligations upon states—negative and positive. Negative obligations, encapsulated by the duty to respect [as found in Article 2(1) of the UN International Covenant on Civil and Political Rights (ICCPR)] require the state to refrain from actively violating human rights. Positive obligations, encapsulated by the duty to ensure (found in the same legal source) require the state to take positive action to protect individuals and groups from harm from other individuals or entities. Thus, for example, the duty to respect the right to free speech obligates the state to refrain from arbitrarily depriving individuals of their ability to speak freely, while the duty to ensure the same right obligates the state to protect individuals from harm by other individuals (e.g., people who harass them because of the views they express) or other factors (e.g., lack of access to communications technology).

The UN Committee on Economic, Social and Cultural Rights developed a particularly robust understanding of the positive obligations incumbent upon states. According to several of the Committee's General Comments interpreting the text of the International Covenant on Economic, Social and Cultural Rights, a state has a duty to protect individuals from infringement of rights by others, as well as a duty to fulfill the relevant rights. The latter includes an obligation to facilitate human rights, an obligation to promote human rights, and an obligation to provide services that lie at the core of the relevant human rights.

Applied to our context, human rights NGOs cannot be the target of governmental interference that violates their human rights or the human rights of their members (such as freedom of association or the prohibition against discrimination). In addition, since human rights NGOs help protect victims, facilitate and promote their rights, and provide services to them, if the government curbs the activities of these organizations by its actions, it may violate the human rights of the victims (unless the government provides for alternative sources of protection or fulfillment). For example, restricting the activities of human rights NGOs involved in combating torture appears to run contrary to the state's obligation to protect victims of torture and/or to facilitate and promote the right of those individuals to be free from torture.

The Right to Effective Remedy

Another important concept in modern human rights law is the right to effective remedy afforded to human rights victims—that is, the right to have recourse to legal or other remedial processes in response to violations of substantive human rights norms. In General Comment 31 to the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that the right to effective remedy [found in ICCPR, art. 2(3)] includes the duty to investigate violations, to provide suitable legal assistance and administrative mechanisms for claims, and to provide appropriate compensation to victims. The Committee noted that State should "take account of the special vulnerability of certain categories of person, including in particular children."

Applied to our context, human rights NGOs must themselves be provided with effective remedies if their rights are violated. In addition, and more pertinently, curbing NGO activities may adversely affect the right to effective remedy of the victims served by such NGOs (again, unless alternative safeguards are put in place).

The Human Rights Defenders Declaration

In 1998, in recognition of the special vulnerability of individuals and groups engaged in human rights work, and of the importance of their activities that promote human rights, the UN General Assembly passed by consensus the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the Human Rights Defenders Declaration). While the resolution itself is non-binding, it may reflect a generally accepted interpretation of binding human rights law as applied to human rights defenders (including the general duty to promote human rights found in articles 55–56 of the UN Charter). Moreover, the declaration's acceptance by consensus may suggest that its contents reflect an emerging international law custom.

The Human Rights Defenders Declaration does not define who a human rights defender is; it merely reaffirms the right of individuals and groups to promote and protect human rights. Nonetheless, non-violent NGOs whose activities are designed, inter alia, to promote and protect human rights would clearly qualify as human rights defenders protected by this declaration.

The declaration confers upon human rights NGOs a variety of rights particularly relevant to their execution of their mandate. These include the right to assemble and associate (Article 5), to receive and impart information (Article 6), to participate in government (Article 8), to obtain effective remedies (Article 9), and to engage in one's profession (Article 10). In addition, the declaration contains specific protections for core activities in which human rights NGOs engage. These include the right to advocate for human rights (Article 7), to criticize the government's human rights record (Article 8), to provide legal assistance to human rights victims (Article 9), and to communicate with international bodies (Article 9). It may be further noted that the declaration stipulates that the work of human rights defenders should not be curbed through unreasonable funding restrictions: "Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration" (Article 13). Finally, the declaration requires the state to protect human rights defenders from "violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action" (Article 12).

While some regulation of human rights defenders is permissible, defenders of human rights should only be subject to limitations on rights and freedoms that are in accordance with "applicable international obligations and are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society" (Article 17). In other words, such limitations must be legally authorized, necessary, and proportionate in nature.

The Recent Legislative Initiatives in Israel

It appears as if some of the bills that are currently pending in the Israeli Knesset or which have recently been adopted are primarily aimed at limiting the ability of human rights NGOs to engage in certain forms of political expression (e.g., calls for boycotts) or to impede their ability to obtain funding for their operations from foreign governments. (Even if this is not the intention of the proposed legislation, it is often the direct result.) More generally, the draft bills pending in Knesset, which propose to limit the ability of organizations to obtain foreign funding and seek to tax donations received by such organizations, seem to be aimed at hindering the operations of human rights NGOs and to sanction them for their human rights work. Such restrictions appear to run contrary to the state's duty to protect and fulfill the rights promoted by human rights NGOs, which will be adversely affected by the legislation. These restrictions also appear to run afoul of the rights and freedoms held by such NGOs and their members, including freedom of expression and the right to obtain resources (as specified in Article 13 of the Human Rights Defenders Declaration).

Note that all of the above rights are relative in nature, as a compelling state interest may justify introducing certain restrictions on NGO activities. Nothing in the explanatory material appended to the recent legislative initiatives, however, suggests a compelling justification for restricting the rights and freedoms currently enjoyed by human rights NGOs. Moreover, such restrictions are not a proportionate reaction to the tenuous justifications that have been put forward (fear of de-legitimization of the state by some NGOs, concerns again foreign intervention through certain NGOs, etc.). Furthermore, any restriction imposed on human rights NGOs must be non-discriminatory in nature. Here too, there are serious doubts as to whether regulation of certain forms of political expression (such as calls for boycotting products from settlements) and regulation of funding (such as funding from foreign governments and international governmental organizations), while permitting other forms of expression (such as calls for boycotting expensive products) and other types of funding (such as funding from private foreign donors), would meet such standards of equality.

Possible Remedies

Unlawful restrictions on the activities of human rights NGOs in Israel would result in breaches of some important multilateral human rights conventions to which Israel is party, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted by the UN in 1966 and by Israel in 1991. As noted above, the proposed restrictions may also violate international customary law and the UN Charter. All of these standards may be enforced through multilateral mechanisms—such as the UN treaty bodies or the UN Special Rapporteur on the Situation of Human Rights Defenders—which, as a rule, only have recommendatory powers. Alternatively, the rights of human rights NGOs could be enforced by unilateral sanctions imposed by foreign states or informal sanctions imposed by private actors on the basis of the universal nature of human rights norms, which confers enforcement rights to all members of the international community.

Finally, one may note that Israel has also undertaken to respect human right  at the bilateral level. Article 2 of the Association Agreement between Israel and the European Union (or European Community)—Israel's major trading partner—provides that: "Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles, which guide their internal and international policy and constitutes an essential element of this Agreement." Arguably, restrictions on the activities of human rights NGOs and on the ability of the EU to support such activities run contrary to the letter and spirit of  this proviso, and may consequently jeopardize trade relations between the two parties.

Conclusion

Israel, like other states, is required not only to respect and protect human rights, but also to defend human rights defenders. Unfortunately,  recent legislative initiatives in the Israeli Knesset appear to violate these obligations, as they seem to aim at hindering the ability of human rights NGOs to operate effectively. In the absence of strong or even plausible justification for the proposed or imposed restrictions, it would appear that many of the provisions of the new legislative initiatives pertaining to NGOs are unnecessary and/or disproportionate and thus unlawful under international law. 

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Prof. Yuval Shany is a senior fellow at the Israel Democracy Institute and a lecturer on international law at the Hebrew University of Jerusalem.