United Nations Special Rapporteur on the situation of human rights defenders
Good morning ladies and gentlemen,
Let me begin by warmly thanking the Government of Mongolia for inviting me to undertake an official mission, which took place over the past two weeks, from 30 April to 13 May 2019.
I would like to thank the Government of Mongolia for its very good cooperation and efforts to ensure that I could make the most of my visit. I have met with the President of Mongolia, the Minister of Foreign Affairs, the State Secretary of the Ministry of Justice and Home Affairs, the Minister of Environment and Tourism, and the Chief Adviser to the Prime Minister. I also had the opportunity to meet with the Speaker of Parliament, the Head of the Parliament Subcommittee on human rights; as well as representatives of the General Prosecutor’s Office and of the Supreme Court of Justice. I also met with the National Human Rights Commission of Mongolia, the Data Protection Unit, the General Authority of State Registration, the Deputy Governor of the City of Ulaanbaatar in charge of urban development issues, as well as Governors of Zuunbayan and Airag sum.
I also met with United Nations agencies and members of the diplomatic corps, as well as the Director of the Asian Development Bank. I also met with representatives from the private sector, including the Orano company, and I would like to thank them for their excellent cooperation.
During my visit to Ulaanbaatar, Airag and Sainshand/Zuunbayan, I have had the privilege to meet with more than 100 defenders, three-quarters of which were women. Among others, I met with representatives of non-governmental organisations, journalists and media workers, environmental defenders, lawyers, trade unionists, housing rights defenders, herder activists, whistleblowers, individuals defending the rights of persons with disabilities and people fighting discrimination against LGBTI persons. All of them are women, children and men who actively defend their rights and freedoms, which reinforced my impression of a vibrant and engaged civil society. I take this opportunity to congratulate Ms Bayarjargal Agvaantseren for her Goldman Prize, the world’s largest award honoring environmental activists, awarded just last week. I was told that many more wanted to speak with me but did not dare to do so by fear of reprisals. We also received information in writing from various sources helping us better capture the situation on the ground and the broad context in which defenders operate. I am particularly grateful to those who approached me for their testimonies, recommendations and insights.
I would also like to thank everyone who helped in organising this visit, with special thanks to the office of the United Nations Resident Coordinator.
The objective of my visit was to assess, in the spirit of cooperation and dialogue, if Mongolia provides the basic elements of a safe and enabling environment for human rights defenders, in light of international human rights law and standards, especially the UN Declaration on human rights defenders, which we celebrated the twentieth anniversary of just last year. In other words, the visit was seeking to answer the question whether human rights defenders feel safe and empowered in Mongolia.
In line with international human rights law, the primary duty to promote and protect human rights and fundamental freedoms lies within the State. This includes guaranteeing the right of everyone, individually and in association with others, to strive for the protection and realisation of human rights. In other words, each one of us has the right to defend all human rights for all.
I have focused primarily on evaluating some of the basic elements of such a safe and enabling environment, namely: a conducive legal and institutional framework; access to justice; independent and strong national human rights institutions; effective protection policies and mechanisms paying attention to groups at risk and applying a gender-sensitive approach; non-State actors that respect and support the work of defenders; and a strong and dynamic community of defenders.
The UN has a very extensive and broad definition of human rights defenders, which was enshrined in the Declaration on Human Rights Defenders in December 1998. During the visit, I had the opportunity, on many occasions, to refer to this definition. I recall that human rights defenders are those who, individually or with others, act to promote or protect human rights, nationally and internationally, in a peaceful manner.
They are people who speak out against corruption, injustice, discrimination or environmental destruction and who advocate for access to information, liberty of movement and freedom of expression, justice, equality of rights for men and women and other human rights. They do not need to belong to any registered organisation to be human rights defenders. They can be ordinary women, men or children, who believe in the universality of human rights and act to defend them. Human rights defenders are agents of change, safeguarding democracy and ensuring that it remains open, pluralistic and participatory.
This definition does not appear to be always well known or understood in Mongolia. I observed a lack of understanding among government officials, human rights defenders themselves and the public in general of who human rights defenders are. I encourage the Government and the National Human Rights Commission of Mongolia to promote this concept, disseminate the UN Declaration on human rights defenders and publicly recognise the legitimate and important role of human rights defenders through campaigns, education and public statements.
As you know, my visit took place just a few weeks after the revelation of a classified tape showing torture of two individuals who were imprisoned for Zorig’s murder. This important event that has profoundly affected the public firmly demonstrates the vital role played by human rights defenders in society who courageously expose violations, and the need to protect them. We cannot afford for this case to serve as a guise for political gains. In this context, I warmly welcome that during my meeting with the Speaker of Parliament, he informed me that there would soon be some Parliamentary public hearings on human rights matters, including children rights.
I wish to recall that I am not employed by the United Nations and the position I hold is honorary. As an independent expert, I exercise my professional and impartial judgment and report directly to the United Nations Human Rights Council and the General Assembly.
Today, I will confine myself to preliminary observations and recommendations on some of the main issues, which will be elaborated in more detail in the report, once I fully review the materials and documents that I have collected during the visit. I will present my final report to the UN Human Rights Council in Geneva, in March 2020.
2. Overall Assessment: Is there a safe and enabling environment in Mongolia for human rights defenders?
Human rights defenders in Mongolia are active in many different fields, including justice, gender equality, freedom of expression, the protection of the environment and the promotion of social, economic and cultural rights.
Mongolia has a good body of laws, which generally guarantee the rights and freedoms of human rights defenders. However, the ineffective implementation of these laws in practice hampers their work.
In addition, I am concerned about some recent legal developments which run the risk of undermining the rule of law and could contribute to shrinking the space for civil society.
Having carefully considered the information received from the Government, civil society and other stakeholders, I conclude that Mongolia is a relatively safe country for human rights defenders. Although some cases of attacks and abuses against human rights defenders were reported, I did not observe a pattern of systematic attacks against human rights defenders.
However, this relatively safe environment does not mean human rights defenders are encouraged, enabled and empowered in their activities. Obstacles such as stigma, pressure, criminalisation, hate speech on social media, the lack of understanding of who human rights defenders are and the lack of access to information and to participation in decision-making processes hinder their work.
In addition, dangerous amendments to several laws, which tend to concentrate the political power in the hands of a reduced number of people, are another source of serious concern. This has instilled fear among the human rights defenders’ community and deterred some of them from pursuing their human rights work. If not addressed properly, these elements could negatively affect the enjoyment of other human rights in the long run.
During the visit, I also heard about cases of discrimination, intimidation, harassment, stigmatisation and blaming statements against human rights defenders, including against LGBTI rights defenders and children rights defenders. In some more cases, environmentalists and journalists who were working on corruption or environmental issues have faced threats and intimidation. Some have died in circumstances that are still to be properly investigated.
Defenders also mentioned more diffuse strategies of social or economic threats against their relatives (like difficulties to access jobs in a rather small community market, scholarships, projects, etc.) or rumors that these kinds of reprisals might happen whenever they get more vocal on sensitive issues such as gender equality, corruption or environmental protection. Given that the community in Mongolia is small and interconnected, these pressures create at times an environment of suspicion and fear, which has a serious deterrent impact on human rights defenders who would like to expose wrongdoings.
In this context, the adoption of a law on human rights defenders would be critical to promote and recognise the vital and legitimate work of human rights defenders, and to penalise and end impunity for attacks against defenders in a concrete way. In order to help them carry out their activities freely and independently, an enabling environment must be put in place.
During my visit, I have been delighted to hear about the Government’s intention to adopt such a law to protect human rights defenders. I regret the reported resistance from the Ministry of Justice and Home Affairs to adopt such a law. No other country in the region has adopted such a law, which would make Mongolia on the forefront of human rights protection, if it were to be adopted. Although human rights defenders in Mongolia do not face the same challenges as their fellow colleagues in the region, the adoption of a robust law to protect those who defend and promote human rights would significantly contribute towards recognising their important role in society.
A. Legislative and Institutional Framework
Legal Framework and Institutional developments
The 1992 Constitution of Mongolia guarantees the principle of equality and nondiscrimination (art 14) and lists in its article 16 several rights and freedoms that are essential to human rights defenders, such as the right to take part in the conduct of State affairs, the right to form a party or other public organisation and unite voluntarily in associations, the right to submit a petition or a complaint to State bodies, the right to personal liberty and safety, the right to justice, the freedom of conscience and religion, the freedom of thought and expression, the right to seek and receive information and the freedom of movement.
The legal framework in Mongolia for the work of human rights defenders conforms quite well with international standards. However, several individuals I met noted that the numerous good laws in place are not effectively implemented, while more restrictive ones are now in the making. Mongolia has a strong reputation internationally, but it is now sending some mixed messages in this respect. Four developments concern me more specifically.
The first one concerns the law that regulates the establishment and activities of human rights non-governmental organisations. Since 1997, Mongolia has a law which complies well with international standards. However, there is currently a parliamentary initiative to reform this law in the name of combating money laundering, which follows a global trend towards restricting foreign funding. Civil society organisations have expressed their concerns regarding the many obstacles to registration and foreign funding that this reform to the law may entail. They also highlighted a series of nationalist statements recently made by public officials suggesting that foreign-funded organisations did not work for national interest. I warmly encourage the Government to continue working with civil society, the National Human Rights Commission of Mongolia, international experts and others who can provide strategic advice to ensure the final text meets international standards. I also stand ready to assist the Government in this endeavour.
The second development concerns the independence of the judiciary. This mission took place just a few weeks after the Parliament voted, in an emergency session without hearings or public consultations, amendments to the Laws on the Legal Status of Judges, Public Prosecutor's Office and Anti-corruption. These amendments allow the National Security Council to make recommendations to revoke chief judges and the heads of the public prosecutor's office and anti-corruption agency. This profound change to the legal framework would deeply undermine the separation of powers, would dangerously reduce the independence of the judiciary, erodes the concept of check and balances, and limits the capacity of the judiciary to combat corruption and impunity. As reported by defenders, this reform instills fear and sends a clear deterrent message towards people speaking out against corruption or discrimination or calling for justice, while contributing to shrinking the space for defenders.
On 9 May, during my visit, the Parliament also approved amendments to the administrative courts law. Following this decision, administrative courts will no longer be in a position to oversee Cabinet’s decisions that were made in accordance with directives and guidance from the Parliament. I appreciate the possibility for human rights organisations to lodge class action on matters of public interest, but I am deeply concerned that such lawsuits will lose all meaning with the adoption of these amendments.
Furthermore, the last two concerning developments relate to the exercise of freedom of expression. I wish first to congratulate Mongolia for removing the crime of defamation from the new criminal code; though I heard about the possibility that it could soon be reintroduced. It is important that Mongolia does not regress on this matter. Moreover, it has come to my knowledge that since July 2017, the offense of libel for information that could damage the reputation of individuals or business entities, under article 6.21 of the Law on Administrative Offences, has been used to counter criticisms. According to data provided by human rights organisations, between July 2017 and March 2018, 230 journalists, media staff and social media users have been investigated under this article and have been subject to excessively elevated administrative fines. Human rights defenders and journalists have expressed their concern that the definition of the offence is vague and overly broad and could be used to silence journalists and human rights defenders or have a deterrent effect (self-censorship) on critical voices. In particular, they highlighted that the risk of being heavily fined operates as an economic censorship.
In addition, I am concerned that, since 2014, regulations provide that news and media websites shall indicate and display the IP addresses of users posting comments in their posts. I am even more concerned by a new draft law, currently under discussion, which if passed, would require users to divulge their ID on social media. If adopted, these requirements would breach users’ right to privacy and to freedom of expression and association, and inhibit the free functioning of a vibrant civil society.
Ensure that any revision to the NGO law is in line with international standards. Make sure that any amendments made do not restrict but enable the work of human rights defenders and organisations.
Restore the independence of the judiciary, the autonomy of the prosecution service and the separation of powers.
Ensure that the national legislation regarding freedom of expression, including on the Internet, complies with the International Covenant on Civil and Political Rights. Ensure that
criticism of State policies or business operations do not lead to persecution or harassment.
Invite OHCHR, UNDP, the World Bank and the Asian Development Bank to seriously consider the recent amendments to national legislation on the judiciary and prosecution service and to support the national authorities in reconsidering and further amending the legislative changes to the laws in line with international standards relating to the independence of the judiciary, the autonomy of the prosecution service and the separation of powers.
The legal framework in practice
Corruption and impunity
According to the information received during my visit, there are 8,000 registered NGOs in the country, including more than 90 dealing with human rights. Many more are defending human rights, such as lawyers, journalists or community leaders. They all play an important role in society. However, some practices hinder their work. Allegations of corruption at all levels were one of the main concerns raised by civil society organisations during my visit. In the past months, thousands of citizens took to the streets to demand an official investigation into state officials involved in financial and corruption scandals. Whistleblowers and human rights defenders exposing malpractices have reported experiencing significant pressures, including by the police and intelligence agency. I firmly believe that good governance is a prerequisite for sustained economic growth, sustainable development and the realisation of human rights.
Several human rights defenders and organisations reported that cases of deaths, and other cases of threats and harassment of those working on economic, political or mining related issues have not been investigated effectively. This has impaired the rights of human rights defenders to access remedies and proper redress for human rights violations, but also contributed to self-censorship. There is a general fear that working on these issues may result in economic or social sanctions, which is exacerbated by the recent legal reforms that place watchdogs under control. Impunity sends a very bad signal to victims and has a serious deterrent effect for anyone standing up for human rights, while encouraging new attacks and abuses against human rights defenders.
Access to information
According to the information received, despite the protective provisions of the 2011 Law on Information, Transparency and Freedom of Information, land and environmental rights defenders, investigative journalists and whistleblowers face difficulties accessing information concerning mining activities such as license information, environmental impact assessments and environmental plans. Too often, companies come to sell their projects, rather than meaningfully engaging with affected community. I note that some mining operations have been stopped after community meetings have exposed risk for human rights and the environment. Local authorities reported experiencing difficulties in regulating the relationship between herders and companies, especially in the context of human rights challenges posed by mining projects. At times, the disagreement between those for and those against mining operations has led to polarisation in the community, which may lead to further human rights violations.
Freedom of peaceful assembly
While the legal framework protects the right to freedom of peaceful assembly, some concerns have been brought to my attention. For protests to happen, individuals just need to declare to the local authority the time and place where their assembly will take place. In practice, however, some groups of defenders such as LGBTI defenders, children defenders and unionists, faced hurdles. Indeed, they reported that often when declaring a protest, they were asked to find another day because a concurrent demonstration or a public event had already been scheduled. In other cases, authorities simply refused to register the event alleging moral grounds. This happened repeatedly in the past few years when the Metropolitan Ulaanbataar City Government restricted access to the Sukhbaatar Square for activities of the Equality and Pride Day organised by the LGBTI community.
Investigate, prosecute and provide an effective remedy for all cases of violations, abuses and attacks against human rights defenders.
Publicly recognise, through campaigns and statements made by high-ranking officials, the legitimacy of and important role played by human rights defenders in Mongolia. Make sure defenders are free from threats, harassment and violence and facilitate their participation in decision making processes in the design of public policies and laws.
Disseminate the UN Declaration on Human Rights Defenders among State officials and staff so they understand better who human rights defenders are and how they contribute to society.
Concerning the right of peaceful assembly, ensure due respect of the national legislation in line with international standards. Ensure any changes to the labour code do not restrict the right to strike, which should be guaranteed in case of failure to implement collective bargaining agreements.
B. National Human Rights Institutions
National Human Rights Commission of Mongolia
During the visit, I met with Mr. Byambadorj, Chief Commissioner of the National Human Rights Commission of Mongolia who explained all of the work his institution performs. Humans rights defenders interviewed have all reported that the NHRC was well aware of human rights issues affecting the country and travelled regularly to the countryside to meet with them. However, the NHRC is operating with very limited and scarce resources and its staff outside the capital could be better protected.
At each and every occasion, I recall that, as part of the institutional architecture of the State, national human rights institutions play a key role in ensuring a safe and conducive environment for human rights defenders. National human rights institutions that comply with the Paris Principles are in a unique position to guide and advise Governments on their human rights obligations and ensure that international principles and standards are adequately incorporated into domestic law and mainstreamed into public policies including that of human rights defenders. Evidence shows that when the mandate of national human rights institutions includes competence to investigate individual complaints and provide effective protection to complainants, and enjoy adequate resources and control over them, they play a leading role in cases where States’ judicial systems are unable or unwilling to adjudicate on alleged violations against defenders.
Reinforce the legal framework of the National Human Rights Commission of Mongolia to ensure its full compliance with
the Paris Principles.
Strengthen its independence and capacity through enhancing human and financial resources.
National Protection Mechanism
I warmly welcome the political commitment of the Cabinet to adopt a law on human rights defenders. I further welcome that human rights defenders and organisations have participated in the elaboration of the draft law. However, I regret that the draft law was blocked by the Cabinet in February 2019 on the grounds that the mechanism provided by the law to oversee the protection of human rights defenders would duplicate the public service function and lead to an unnecessary increase of staffing and expenditure. The Cabinet also expressed that existing laws already protect human rights defenders.
As I previously mentioned, the adoption of such a law would be a landmark step in the region towards the protection of human rights defenders. The law and the mechanism it would design would of course need to adapt to the specific context of Mongolia and focus on preventive actions and strategies to recognise, support and enable the work of human rights defenders.
I had the opportunity to look at the text prepared, in close cooperation with the National Human Rights Commission and civil society. It contains numerous protective provisions that makes me confident about the positive role such a legislation could play in the society. I would like to highlight a few aspects which I believe could valuably contribute to strengthen this draft law.
The current draft of the law refers to limited and short-termed protection measures consisting mainly in police protection. Instead, I recommend adopting a broader and holistic understanding of protection. The mechanism role would therefore consist in designing and implementing plans to tackle the obstacles hindering human rights defenders’ work such as intimidation, discrimination, impunity and exclusion from decision making processes. The law should also promote and recognise the vital and legitimate role played by all human rights defenders, including, but not limited to, women and children human rights defenders, environmental defenders, media workers, trade unionists, anti-corruption advocates and whistleblowers.
Furthermore, Mongolia previously had an independent Marshal service and a Security Protection Unit created to protect victims and witnesses of crime during criminal proceedings. The work of this office was very much praised at the time but the program was eventually dissolved in 2016 for budgetary reasons. Its functions were transferred to the Central Police Department but with no additional means, resources or training provided to the police. There is a strong demand from the people I met to restore an independent body in charge of witnesses’ protection such as the previous Marshall's Office. In addition to the mechanism for the protection of human rights defenders, I therefore recommend to re-establish such a program and to allocate it sufficient budget.
Enact the Law on human rights defenders, not only to protect their rights, but also to promote and recognise their vital and legitimate work, and to penalise and end impunity for attacks against defenders in a concrete way.
Organise, with the support of the Office of the UN High Commissioner for Human Rights, a consultation on the benefit of a law on human rights defenders, to which international experts from countries that have already adopted such laws could be invited.
Institutionalise victim and witness protection outside of the law enforcement authority, through the re-establishment of the Marshal service.
C. Challenges of groups at risk
Children and young human rights defenders
According to the various testimonies I received, many children in Mongolia face violence, abuse, neglect and exploitation. In this context, children rights defenders have been key to ensuring better conditions for children and youth. Several interlocutors I met reported that the majority of young people were not familiarised with the concept of human rights defenders and did not identify as such, especially in rural areas.
On 1st May 2019, I met with a large group of children and young human rights defenders. They provided several examples where their attempts to address matters that affect their rights such as the quality of their education, their situation at home or issues related to climate change, were dismissed or trivialised by adults and authorities. They reported being questioned and penalised by teachers because of their age, when exposing issues that may damage the reputation of their school. For instance, children reported that their attempt to organise a “Friday for Future” demonstration last March to campaign for human rights and against climate change failed as the Governor of Ulaanbaatar city did not provide them with a date, time and location to do so.
Ensure children and youth are provided with an enabling environment to effectively and meaningfully participate in policies affecting them, including through the effective realisation of their right to freedom of association and of peaceful assembly.
Women human rights defenders
In line with my commitment to develop a gender-specific approach to the situation of human rights defenders, I held meetings with women human rights defenders. What I heard during my meetings in Mongolia confirms the trend already explained in my last thematic report on the global situation of women human rights defenders. Women human rights defenders face the same risks as their male counterparts but they are also exposed to gender-specific threats. In other words, they face additional and different threats that are shaped by entrenched gender stereotypes and deeply held ideas about who women are and how women should be. They are also attacked for promoting and protecting human rights because of their identity and because of what they do. During my meetings with women defenders, I heard powerful testimonies on the attacks targeting women and depicting them as “bad mothers”, “bad sisters” or threats to moral values. These attacks often take place on social media, which recalls the need to create safe spaces for women both online and offline.
Publicly recognise the importance of the equal and meaningful participation of women human rights defenders at every level and in every institution in society.
Acknowledge the specific challenges and risks women human rights defenders face,documenting and investigating all forms of risk, threats and attacks against women human rights defenders. This should also include ensuring that perpetrators –both State and non-State actors –are brought to justice and that these defenders have access to an effective remedy.
Land and environmental rights defenders
In 2015, at least two human rights defenders (one conservationist and one investigative journalist documenting mining abuses) died in unexplained circumstances. Civil society organisations have complained about the investigations and the lack of effective justice and remedy in both cases. I warmly encourage the judicial authorities to make a proper investigation into these cases and to take steps to ensure that members of organisations of human rights, environment and others are free from attack and persecution.
During my visit, many described a range of threats, including smear campaigns and intimidation against environmental rights defenders, herders, land and housing rights defenders and NGO workers who promote socio-economic and cultural rights against mining industries.
In particular, I am concerned by the situation of herders in the regions of Airag and Sainshand/Zuunbayan which I visited last week. In the majority of the projects I visited, prior consultations were held by companies - often with the presence of a representative of the State - but their effectiveness was questioned by affected communities and human rights defenders. A large percentage of the population in these areas is nomadic and many of them have not been included in consultations, although their herds may at times graze in the mining areas. In other cases, the unbalanced economic relationship between family herders and major companies providing social development projects has not allowed for genuine consultation.
Although some companies seem to make efforts to reduce their environmental impact, other have allegedly less mitigation measures. As an example, in Airag, near a Fluor mining site operated by the Chinese company Yantai Uul, I have witnessed that herders reportedly live among contaminated dust. I am also alarmed by the case of the Khamariin Khiid Buddhist Monastery whose protected area perimeter was partially granted in concession to a mining company. The mining exploitation may adversely affect the right to freedom of religion and belief of the people who come to this place. In Zuunbayan, the information provided did not clear up the doubts of some community members regarding the contamination of their water sources. The apparent lack of trust between some of the parties can only be solved by ensuring the company and independent inspectors provide regular information to the public.
Develop, in consultation with human rights defenders, and enact a National Action Plan on Business and Human Rights in order to disseminate and implement the Guiding Principles on Business and Human Rights and regulate the relationship between companies and herders and other communities.
Ensure that effective consultations, with pluralistic and reliable information made available to affected communities, are held prior to granting operating licences to companies, in line with international standards. Take due account of the concerns, opinions and suggestions of affected people in concerned areas. Make sure companies apply a broad understanding of the concept of “affected people”, in order to include nomadic people and herders.
Ensure that projects do not negatively impact on human rights, and allow human rights organisations to monitor projects and to participate in decision making processes.
LGBTI rights defenders
On December 2015, the Government of Mongolia passed a new landmark amendment to the criminal code which codifies discrimination on sexual orientation and gender identity grounds as a crime. However, social attitudes and prejudices are still prevalent against LGBTI people and those defending their rights. Discrimination against LGBTI persons encompasses all spheres of the society including law enforcement, healthcare and education. According to defenders, access to justice in these cases is difficult. Many of them do not report these attacks for fear of further retaliation. Those who file a complaint say that the police hardly investigate cases and never solve them.
Publicly recognise the legitimate and important role played by LGBTI rights defenders to combat discrimination, and train law enforcement officials to implement this fundamental principle in practice.
Journalists, whistleblowers and human rights defenders working on corruption cases
Journalists in Mongolia operate in a difficult context, characterised by a strong media concentration in the hands of a few private entrepreneurs and self-censorship, provoked by the fear of being economically or politically sanctioned or facing a judicial process and populist rhetoric fueled by fake news that does not favour the pluralism of ideas. Many of the observations I made previously regarding defamation and access to information affect first and foremost investigative journalists.
According to data sent by a human rights organisation who conducted a survey among 300 journalists on their safety level in 2018-2019, threats, intimidation or insults to journalists or their family members happen to one out of two journalists in Mongolia. This also includes censorship of publications or attempts to ban programmed broadcasts, damage or confiscation of equipment, obstacles to access information and pressure to reveal sources of information.
Human rights defenders speaking out against corruption and whistleblowers face similar obstacles and risks. I was informed of three paradigmatic cases that exemplify the situation they face. In the first case, a human rights organisation working on transparency reported to have received in 2015 a letter from the Prime Minister that threatened to open a criminal case against them if they continued to denounce corruption practices. In the second case, a human rights organisation working on corruption received blaming and stigmatising statements by State actors who accused it of making large sums of money from its social work. In the third case, a journalist who had uncovered a major corruption scandal was followed, surveilled and intimidated by police, and had to be temporarily relocated in a safe house. These are just a few examples that show that Mongolia should do better to ensure journalists, whistleblowers and other human rights defenders can practice their work without fear of retaliation or punishment.
Establish policies to promote media pluralism and independence, including by ensuring the independence of the media regulatory authority.
Put in place legal safeguards ensuring criticism, reporting and denunciations on the activities of State authorities or companies do not lead to persecution, criminalisation or harassment.
Ensure respect for the right to privacy and the right to freedom of expression in all aspects of Internet regulations, including by adopting a data protection law. Restrictions to those rights should strictly follow the principles of legality, necessity and proportionality.
Enact the law on the protection of whistleblowers; and ensure whistleblowers are protected against any forms of retaliation or criminalisation.
D. The role of the international community
A large number of NGOs and defenders that I met expressed that the support of the international community was key to consolidate the rule of law in the country. I strongly recommend that the international community reinforce its efforts to fully implement the provisions of the EU and national guidelines on the protection of human rights defenders, including through trial observation, and where relevant, through political and financial support to defenders at risk. Embassies should travel in the regions to try and reach out to remote defenders and communities, as well as the defenders from most vulnerable groups.
In the context of business operations, public and private companies may play a role to protect, or on the contrary, to limit the space for civil society to defend and promote their rights. In order to play a positive role, I recommend that:
Companies should ensure ample participation and validation of potentially affected communities at risk on the new tools and complaints mechanisms developed to deal with potential attacks, threats and other incidents occurring in relation to the companies’ projects.
Public and private companies must respect human rights, the internationally recognized principles on business and human rights, including the United Nations Guiding Principles on Business and Human Rights. They should publicly recognize and respect the positive role of human rights defenders. Companies must refrain from actions that can negatively affect the enjoyment of human rights in any way.
Companies should advocate for prior and meaningful consultation with herders and communities when they have the intention to participate in a project that can affect them. Companies should refrain from taking actions that can affect these consultations, including those that can contribute to internal division of communities. Companies should offer all relevant information to the affected people by the projects in an accessible and culturally appropriate way.
Companies must ensure that private security companies and other subcontractors respect the right of defenders and do not contribute or cause harassment or violent acts against affected communities.
Over the past 30 years, Mongolia has transformed itself greatly, leaving communist rules to a multiparty democracy with solid institutions and an expanding economy. These major advancements have resulted in strong development and significant progress for the people of Mongolia. I commend Mongolia for adopting such firm democratic standards and for developing solid frameworks for the participation of civil society, including human rights defenders.
However, recently adopted, or under discussion legislation, as well as repeated large-scale corruption scandals, has revealed some fragility in the developmental gains. Collusion of the political and the business spheres, worrying political interference into the judiciary and environmental degradation in a country where people have always lived in harmony with nature, have contributed to compromising public trust in the State’s ability to hold perpetrators of malpractices into account. The concentration of powers in just a few hands should not result in human rights retrogression. There is a general sense of fear and self-censorship among the defenders’ community, which relates to economic and social pressure. This is particularly true for those who courageously expose the risks of extractive industries for the environment and the people, report on corruption and malpractices, or simply call for justice and equality. The adoption of a law on human rights defenders would in this context be critical to promote and recognise the vital role played by human rights defenders in society. I firmly believe in the ability of Mongolia to continue abiding to the rule of law and to human rights norms and principles and to continue working for the benefit of its people.
Guiding Principles for the elaboration of legislations, policies and strategies for the protection of human rights defenders
by the Special Rapporteur on the situation of human rights defenders
The protection of human rights defenders in Mongolia should be seen in the context of three obligations that international human rights law imposes on States. The obligation:
- to respect human rights by refraining from violating them;
- to protect such rights by intervening through protective action on behalf of defenders against threats by armed groups, paramilitaries and organized crime;
- and to fulfil them by ensuring a safe and enabling environment for defenders to enjoy their rights and to carry out their activities.
I propose seven principles to guide the government of Mongolia when developing policies and strategies to protect human rights defenders. The government of Mongolia should:
- Adopt a rights-based approach to protection, empowering defenders to know and claim their rights and increasing the ability and accountability of those responsible for respecting, protecting and fulfilling rights.
- Recognize that defenders are diverse; they come from different ethnic groups, backgrounds, cultures, belief systems and have diverse gender identities. From the outset, they may not self-identify or be identified by others as defenders.
- Recognize the significance of gender in the protection of defenders and apply an intersectionality approach to the assessment of risks and to the design of protection initiatives and also recognize that some defenders are at greater risk than others because of who they are and what they do.
- Focus on the “holistic security” of defenders, in particular their physical safety, digital security and psychosocial well-being.
- Acknowledge that defenders are interconnected. The policy or strategy should not focus on the rights and security of individual defenders alone, but also include the groups, organizations, communities and family members who share their risks.
- Involve defenders in the development, choice, implementation and evaluation of strategies and tactics for their protection. The participation of defenders is a key factor in their security.
- Bear in mind that the protection should be flexible, adaptable and tailored to the specific needs and circumstances of defenders.