Protecting Defenders in Development: Lessons Learned from Nepal
As we celebrate the 70th anniversary of the Universal Declaration of Human Rights this week, human rights defenders across the globe are under attack. A human rights defender is not just a visible leader in a campaign for justice. Rather, every person asking for information about or voicing their concern about a project, be it privately or sitting in a protest, is a defender who runs the risk of retaliation. According to Front Line Defenders, more than 300 defenders in development were murdered in 2017. As lawyers for communities in Nepal, we have seen firsthand that defenders in the country face increasing risks to their personal safety as they defend their rights against development projects that harm local communities. This needs to change.
Hydropower transmission lines leading to violence in Nepal
Since 2013, the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP) and Accountability Counsel have been supporting communities affected by electric transmission lines across Nepal that are part of the country’s hydropower energy gold rush. In addition to disrupting the lands of local communities, transmission lines also have environmental, economic, social, and health impacts. However, communities who speak out against these transmission lines face grave risks to their safety and wellbeing, as we witnessed while supporting communities in Sindhuli who were affected by the World Bank-funded 220 kV Khimti Dhalkebar transmission line.
First approved by the World Bank’s board in 2003, the Khimti Dhalkebar project was completed in 2017. Throughout the project, affected communities in Sindhuli asked for fair compensation to individuals whose land was affected, better project consultation and information disclosure, and a process to seek free, prior and informed consent (FPIC) from affected Indigenous Peoples. The World Bank’s failure to adequately respond to the communities’ concerns ultimately led to serious human rights violations.
The Bank’s independent accountability office, the Inspection Panel, found that lack of information and misinformation in the project had led to violence on the ground in Sindhuli and delays of several years. Despite these documented instances of violence and reprisals against communities, the World Bank refused to take any public steps to hold the implementers of the Khimti Dhalkebar project accountable. Instead, the World Bank continued to pump more money into the Nepal Electricity Authority (NEA), the implementing government agency, even though the Sindhuli communities demanded suspension of financing to the NEA until their concerns were addressed.
In 2016, violence in Sindhuli erupted. Armed paramilitary forces were deployed to Sindhuli, and forcefully dispersed peaceful protesters. They set up camp at construction sites to ensure the final transmission towers could be built under their guard. Communities were subjected to detention and other forms of intimidation for raising their voices, and false criminal charges were filed against community leaders. When Sindhuli communities raised their concerns about violence, intimidation, and coercion by the state to the World Bank, the bank management ignored what they said and covered up the human rights abuses in public reporting.
The World Bank is not alone in financing projects in Nepal that may put defenders at risk. The European Investment Bank (EIB), Asian Development Bank, and other bilateral financiers like the U.S. Millennium Challenge Corporation, European national development agencies, and the Chinese are also putting money into Nepal’s hydropower sector. Publicly, they are all showing varied levels of commitment to ensure local communities’ human rights are being respected.
Accountability Counsel and LAHURNIP are now supporting communities in Lamjung who are affected by the EIB-funded 220 kV Marsyangdi Corridor, which has yet to be constructed, and another Chinese funded transmission line. These communities have recently filed a complaint with the EIB’s independent accountability office, the Complaints Mechanism, to raise grievances about the environmental, human rights, and economic livelihood impacts of the project. Ensuring there are no reprisals against Lamjung communities will be an important indicator of whether communities’ rights are being respected in development projects in Nepal.
Five lessons for development financiers to better protect defenders
It is imperative that financiers use their influence to safeguard human rights defenders in development and ensure that the events in Sindhuli District are not repeated. Based on our firsthand experiences supporting communities, here are some steps that development funders can take to avoid financing human rights violations through their projects, particularly in early stages of the project cycle. While the recommendations below are grounded in our experiences in Nepal, they speak to issues that are internationally applicable.
1. Special protections for marginalised groups
First, special protections should be ensured for women and defenders from marginalised groups such as Indigenous Peoples, Dalits, and more. Financiers of projects should maintain open and confidential channels of communication with human rights defenders and their representatives in order to ensure that they are aware of the security situation on the ground and can intervene if intimidation or violence occurs.
2. Zero tolerance for retaliation
Financiers should take action in support of people who are threatened or faced with violence, and should demonstrate zero tolerance for retaliation against human rights defenders. If a borrower or host country uses violence to suppress dissent for a development project, the project funder should consult with affected communities to ensure the situation is remedied, and that there has been some resolution for those who were harmed and their loved ones. If affected communities request it, financiers must use all leverage — including holding off on future funding or disbursements — until retaliatory issues have been remediated and resolved.
3. Assessment of political situation for heightened risks
Financiers must take appropriate measures to identify and address heightened risk of human rights violations and violence against defenders when going into conflict areas, post-conflict areas, countries in transition, or countries where rule of law is weak. For example, a borrower or host country with a policy or past practice of using military, paramilitary, or armed police to move forward development projects raises broader questions around how social requirements of sustainable development will be implemented. In Sindhuli, the World Bank failed to systematically identify, document, and address the various risks posed by Nepal’s changing political status throughout the Khimti Dhalkebar project. Given that the transmission line passes across a district in which the Maoist armed insurrection had originated, Nepal’s transition from a conflict to post-conflict area to a country with developing rule of law intensified the risk of human rights abuse and violence against human rights defenders. In early 2016, the Government of Nepal supported a policy offering the army and armed police force in exchange for payment from project developers to protect hydropower sector development. This exacerbates the risk of excessive force being used on communities in future projects in Nepal.
4. Greater transparency and disclosure of instances of abuse
As the Sindhuli case demonstrates, strategic lawsuits against public participation are increasingly common across the world, including in Nepal. To address the issue of false charges or lawsuits targeting public participation, it may be helpful if borrowers are required to publicly disclose to financiers all court cases that have been filed regarding projects they fund, regardless of whether the cases have been filed directly by the borrower. There may also be value in a neutral mechanism with civil society participation to document and publish instances of human rights violations and retaliations against defenders, where defenders have given permission for public disclosure.
5. Meaningful consultation throughout a project
Having transparent consultations with affected local communities at every stage will ultimately be the bedrock to any solutions. Indeed, there should also be a serious consultation with project affected communities in areas with higher risks for rights violations about whether the development institutions should be financing projects if they cannot ensure their environmental and social standards will be followed. Development financiers, states, and other development actors need to ensure robust free, prior and informed consent of indigenous peoples, and consultation of other affected communities.
Accountability Counsel and LAHURNIP are a part of the Defenders in Development Campaign — a broad-based coalition of community activists, defender organizations and accountability groups from around the world — who have written an open letter to states and development financiers urging them to safeguard those who defend their rights in the context of development activities and investments.