SIM Peter Baehr Lecture

Annual SIM Peter Baehr Lecture, 29 September 2017 ¹

It was some ten years ago that I spoke at a New Year’s meeting at the Amnesty office in Amsterdam. Peter Baehr was in de audience. I was arguing points that are at the heart of Amnesty’s work, in this case regarding the Netherlands. He came up to me afterwards and said: that was a good speech, Eduard. And he added: ‘But you will appreciate that I do not agree with what you said’.

He then offered to follow my blogs and speeches and give some feedback. And so he did, many times. That for me was Peter Baehr. Very loyal towards Amnesty and the human rights movement, turning up at event after event. Also a loyal and critical advocate of the things he thought the Dutch government was doing right, within the national and international space that a government is allowed. And loyal most of all towards clarity of reasoning, to argumentation that does justice to the possibilities and restrictions of all parties.

It is a true honour to have been invited to give this lecture named after Peter. I can only hope to do justice to what Peter has taught us. I feel there is no better way to start this lecture than with a place and a person that were near to Peter.

What John Locke taught

That person is John Locke. He came to Utrecht shortly after having arrived in the Netherlands from England in 1683. He moved to Amsterdam in 1685, then came back to Utrecht since, as one of his friends wrote, that city would give him ‘more leisure and better opportunities for quiet thought and work with his pen’. A curiosity: Locke lived in Utrecht right here around the corner, in the house of painter Jacob van Gulick at the Pieterskerkhof. Here he worked on his famous Essay regarding Human Understanding. Later he lived, as witnessed in his letters, ‘on the Corner of the Oudkerkhof to Utrecht’. When the English government requested his extradition, Locke felt no longer safe in Utrecht. He once more took off to Amsterdam, now taking his books in a portable bookcase made for the occasion. Another curiosity: most certainly he has been in Amsterdam for an important debate on religion and freedom that took place in a house at the intersection of Keizersgracht and Westermarkt, which is the spot I can see daily from my window at the Amnesty office.

In Locke’s work, virtually all of present-day human rights principles had already been laid down: Freedom of thought, Freedom of religion, Freedom from slavery, Freedom from torture, Participation in government, Right to asylum (a right that may have saved Locke’s life), Equality of law, and Life in human dignity. What Locke did not mention are women’s rights.

Our task these days is to work against the shrinking of space for civil society from the notions that Locke had already developed. Notions that have been repeated in numerous covenants and declarations, in particular since 1948. These rights are the very cornerstone of European civilisation and of the law and institutions of the Council of Europe and the European Union.

An important expression of the drive to protect civil society organisations are the European Guidelines on Human Rights Defenders, adopted in 2008. Their basis is in the UN Declaration on Human Rights Defenders of 1998 guarantees, inter alia, the rights to conduct human rights work individually and in association with others; to form non-governmental organisations; to seek and send information; and to solicit and receive resources, also from abroad.

Peter Baehr

What are the core issues here, for the human rights movement? Peter Baehr, I assume, would pose two crucial questions to my topic of today. Firstly, how can NGOs be independent, objective, and nonpartisan while attempting to get results in a political world? Peter addressed this issue in his article on Amnesty (‘Amnesty International and its Self-Imposed Limited Mandate’ (1994)). Secondly, what are the lessons learnt when NGOs are being threatened by the shrinking space for civil society? What can we do against the trend of shrinking space?

The shrinking space: Where and how?

In the report ‘People power under attack’ (2017), CIVICUS Monitor found that just three percent of people live in countries where space for civic activism, or civic space, is truly open. People in 106 countries face serious threats when organising, speaking out and taking peaceful action to improve their societies. This is notwithstanding that these rights are guaranteed by most national constitutions and enshrined in international law.

In line with what Antoine Buyse summarised in an article on the shrinking space, a draft that he shared with me, we may use the term ‘civil society organisations’ (CSOs) rather than NGOs. Firstly, because that wording, explains Buyse, best reflects these networks and their potential for collective action. Secondly, ‘non-governmental’ feels like rather a negative definition, while its distance from government is in many cases not the defining characteristic of the organisation. I may add that Amnesty International is an organisation that fits the non-governmental label as we do not accept government funding, except for some human rights education and empowerment projects. But Amnesty too does not shy away from being in close contact with governments if that serves the case of human rights.

The third reason for using the name ‘civil society organisations’ is that the term refers to organised bodies. And it is precisely against these, says Buyse, that most of the hostility of states is directed. Governments loath them by the very reason of their association. I may add that in our field of work, we have become familiar with the term ‘human rights defenders’. These were formally recognised in a UN Declaration of 10 December 1998. Quite a few defenders, in a tradition that one could call ‘dissident’, have been active and have also been targeted as individuals, by harassment, threats, imprisonment, and even killing. The variety of repression shown by governments frequently unhinges what we have conceptualised in international law or academic studies. The words of Norbert Elias come to mind here, from his book The Society of Individuals (1987) ‘We have the familiar concepts “individual” and “society”, where “individual” refers to the single human being as if he or she were an entity existing in complete isolation, while “society” usually oscillates between two opposed but equally misleading ideas [of singularity and plurality]…as if they were two ontologically different entities’. I do not know whether Peter Baehr quoted Elias, but I imagine that the political scientist in him would subscribe to this.

For the truly independent organisations, the shrinking space for civil society has serious consequences. Because if organisations cannot operate independently of government interference and coercion, there is a high risk that facts are not objectively determined and that people who claim their rights will no longer be heard or even killed. Yet it should be noted that there are also countries where some organisations are threatened but space for independence is maintained or even enhanced. Not every backlash in civil liberties or rule of law is a token of shrinking space (not every tropical storm is a token of climate change). It is important to distinguish the accidental from the structural.

Much of the shrinking is through legislation. In many countries it is also, or most of all, the practice. Security agents are bothering people on false grounds, demonstrations are being improperly imposed, human rights defenders are bothered by unknowns who are most likely employed by government, defenders get threatening calls, their mail traffic is hacked, and so on. It may also be that there is a social climate that is aimed at human rights defenders. Often such a climate is tolerated or even encouraged by the government. Then the defenders are robbed of honest religious or moral motives, they are accused of perversion or insult or crimes abroad, they are attacked on the street or in the house, and they are made to look suspicious in the media. It is a politics of ‘the winner takes all’, where dissident and minority voices, including those from marginalised groups such as migrants and refugees, are suppressed.

Shrinking space is a worldwide phenomenon. William Dobson describes this in his book The Dictator’s Learning Curve (2012). The neo-authoritarians are still brutal, but they have learned to adapt. These types of leaders, he says, ‘are far more sophisticated, savvy and nimble than they once were’. Dobson also thinks that more people are willing to attend opposition events, preferably held in the shadows, ‘safe from the prying eyes of the regime’. Much has been written about the shrinking of space in countries such as Turkey, Russia, China, and Venezuela. In this lecture, which I limit to the area of the European Union, I will focus in particular on Poland and Hungary. This is a choice prompted by both geography and urgency. These countries are members of our European Union, yet the way they tend to go now is contrary to basic European values.

Why has the shrinking space phenomenon grown recently?

Why has the civic space been shrunk so much in recent years? Human rights were confronted with quite a few new or renewed threats. If we look at Europe, the following developments should be noted. These various processes are related, but not necessarily in a causal way.

Firstly, refugees and migrants from the other side of the Mediterranean have come in unprecedented numbers. Governments reacted by further closing borders and offering no protection to refugees. Secondly, the rise of populist movements and the mainstreaming of hard-core right-wing ideologies has become much more intense. In particular in some Central European countries they have taken a firm foot. Another factor is the growing unpopularity of the EU and its institutions, exacerbated by the economic crisis since 2008 and the lack of effectivity in regulating refugee and migrant flows since 2014. Next, we note that governments are inclined to take measures that lead to shrinking the space in particular in Central and East European countries that had little civil space until the 1980s. Yet another factor is the War on Terror, a US-initiated policy since the 9/11 attacks. It has prompted and facilitated policies such as surveillance and data mining that restrain legal protection in areas of freedom of speech, freedom of religion, organising independent organisations, privacy and more. And a final factor is the striking phenomenon of ‘copycat’ behaviour. A country that with a measure of success has introduced certain policies, is likely to be taken as an example by other countries particularly in the same region. This underlies, for example, the anti-NGO measures that were first taken in Russia and are now being introduced in Hungary and Poland.

Hungary

In Hungary, the tone of the political debate is harsh. That may be related to Hungary’s past, with its continuing minority issues. In any case, in the last seven years or so, the government has turned against migrants and journalists and judges, has repressed the freedom of schools and universities, and now goes full-blown against civil society organisations. I quote from a speech by Prime Minister Viktor Orbán: ‘We have to deal with paid political activists here. And these political activists are, moreover, political activists paid by foreigners […] It is vital, therefore, that if we would like to reorganize our nation state instead of the liberal state, that we should make it clear that these are not civilians coming against us, opposing us, but political activists attempting to promote foreign interests. All of us should know who the characters behind the masks are.’ Early in 2017 the vice-president of the Fidesz Party, the party that since 2014 has a supermajority in Parliament, made a statement accusing foreign-funded NGOs of attempting to ‘influence political life in an illegitimate or unlawful way’. He threatened to use ‘all the tools at disposal’ to ‘sweep out’ NGOs funded by the Hungarian-born financier and philanthropist George Soros.

Amnesty International reported earlier this year that in Hungary ‘threadbare attempts to disguise new laws as being necessary to protect national security, cannot hide its real purpose: to stigmatize, discredit and intimidate critical NGOs and hamper their vital work’. If an NGO receives funding over 23,000 Euro per year from outside Hungary, it must register as an ‘organization receiving support from abroad’. Amnesty Hungary director Julia Ivan feels that what essentially went wrong in Hungary was the constant hope on international law and European Institutions. Meanwhile the dismantling of the rule of law is a highly legal battle and only experts can produce well-informed answers. As a result of the ongoing struggle, says Julia Ivan, many human rights defenders are extremely disappointed, and sometimes frustrated.

In Hungary, the reception of asylum seekers is a significant factor in the political debate and in its tendency to gradually undermine the principles of rule of law. Although the number of asylum seekers applying for refugee status in Hungary declined sharply after the closure of the southern border in late 2015, the government continued to dominate the political agenda by exploiting the issue of EU refugee relocation quotas. Following a lengthy and excessively biased campaign on the matter, the government pushed through a referendum in October 2016. This is how the question was put to the Hungarian population: ‘In the recent period, there have been terrorist attacks one after the other in Europe. Despite these, Brussels wants to force Hungary to let in illegal immigrants. What should Hungary do?’ The available answers were, A: ‘For the sake of Hungarian people’s security, illegal immigrants must be placed under supervision until the authorities make a decision in their case’; or B: ‘Let us allow illegal immigrants to move freely in Hungary’, Disregarding the invalid turnout of below 50 percent, the government then put forward constitutional amendments.

Hungarian civic organisations are going through tough times. Freedom House reported in its annual ‘Nations in Transit’ review (2017) that lack of funding is a significant problem for the civil sector. Within one year, four of the most relevant Roma advocacy NGOs closed down or cut back, as donors pulled out from Hungary. Access Now wrote in April 2017 that a few well-established NGOs such as the Hungarian Civil Liberties Union and the Hungarian Helsinki Committee have managed to push back successfully on the government’s attempt to silence them. Péter Krekó of the Political Capital Institute in Budapest noted that ‘Orbán’s administration has followed Russia’s lead in creating and funding an alternative network of civil society organisations that serve as the domestic and international mouthpieces for the government’. There are government-organised NGOs (GONGOs) that staged pro-government rallies in Hungary and Brussels; party-organised non-governmental organisations (PANGOs) that defend the government’s position legally; and governmental think-tanks that provide supportive ‘analysis’ of the validity of government’s policies and strategies.

Poland

I will turn to Poland now. At a recent meeting in Warsaw of directors of European Amnesty sections, one invited speaker was a civil law judge. He confirms that recently the government has made repeated attempts to enforce reforms that would jeopardise the rule of law and human rights. He called those developments both fast and sad. One example is that the Minister of Justice now also has the function of Prosecutor General. This judge himself has been targeted and threatened. He receives messages from higher-up that he should not receive as a judge. It has been announced there will be an audit of his work by a central anti-corruption office. He finds his name in vicious attacks in the social media, such as that he should be sent off to a North Korean labour camp. About one investigation that would be directed against him, he only learnt in the media when he was on holidays. People like him, who liaised to the Council of Europe’s Venice Commission that advises on the protection of democracy through law, are denounced as traitors. The judge fears for the members of his family.

Academic studies emphasise that, to understand why the condition of Polish civil society is unsatisfactory, one needs to consider the past. The breakthrough of 1989 was among other reasons the result of many years of the mobilisation of civil society. Communist authorities had of course always denied the legitimacy of any social movement that they could not control and that would not comply with the official ideology. During the communist era Poland enjoyed a strong civil society – or illegal civil society. The social movements during communism were not diffuse – they had their own well-functioning structures and organisations, such as the Workers’ Defense Committee (KOR), or the Movement for the Protection of Human Rights (ROPCiO). Today, there are divided politics. The government is strong and intent on shrinking, but there is considerable opposition from academics and some NGOs such as Polish Helsinki Federation.

Earlier this month, Amnesty concluded that the judicial reforms in Poland are in direct breach of international human rights standards as observed by intergovernmental organisations and independent bodies. Draginja Nadazdin, director of Amnesty’s Polish section, says she regrets that Polish human rights organisations did not learn more, earlier and better from the developments in Hungary and in Russia. In particular since late 2015, groups that foster democratic action are being badly attacked. A new media law is in the making. Draginja told me that when she met other NGOs the month before, she found that funding has been put in a pressure-cooker since so much work is still dependent on grants from the EU and other rule of law governments. And then there is the societal climate that is threatening. Mainstream media are more often than not very negative in their narratives about judges, about independent organisations, about refugees and those who try to assist them. Groups at the far right get more and more public space and it looks like the government is more than willing to copy at least part of their message.

The dire situation in Poland has not done away with all opposition, however. Freedom House reports that demonstrations and marches abounded. Protests have been organised by among others the grassroots civic movement called the Committee for the Defense of Democracy (KOD). A proposed bill against abortion sparked a wave of protests among a new political demographic: younger people and women. On 3 October of last year, about 30.000 women protested in Warsaw and another 100.000 across the country in the so-called Black Protest. Three days later, parliament rejected the proposal. Global Government Forum reported that in October 2016, 13 civil society experts resigned from a body that oversees NGO funding in Poland, stating that democratic procedures had been disregarded when grants were issued. CS Monitor reported late last year that though Poles have some of the lowest rates of participation in protests across Europe – in 2014 only 2.5 percent of Poles said they participated in a legal public demonstration – nowadays more people feel they can influence the political situation in the country than at any time since 1992. Both sides, those pro and contra the government, are protesting because they mobilise each other. And the Committee for the Defense of Democracy says their movement is part of civil society awakening. They assert that intellectuals have finally understood there is a danger that Poland will return to ‘what we had for 45 years in our country’.

Hungary and Poland are not the only countries of concern in Central and Eastern Europe. In the Czech Republic, President Zeman’s anti-immigrant rhetoric supports an emerging anti-liberal discourse. Yet the Czech civic sector is lively and extensive, with a large number of organisations. According to public opinion surveys, about 60 percent of respondents trust their mayors and local government offices, which is much higher than their confidence in the parliament or government. In Ukraine, the government has imposed extra obligations for NGOs in an attitude of ‘we should learn from Poland and Hungary’. In Moldova, according to my Amnesty colleague, a majority of civil society organisations are ‘QUANGOs’, which are quasi-independent NGOs. So there you have all those crypto-NGOs that I referred to earlier, the GONGOs, PANGOs and QUANGOs, who are regularly present at international meetings to meddle in the work of independent NGOs.

The EU institutions and The Netherlands

The European Union has important programs on shrinking space. Some good words about the EU may be said here. The EU was the first major institution to recognise and address the shrinking space. It reacted with funds for democratisation, support from embassies to activists, targeted development aid. The EU has funded a large range of initiatives from the European Instrument for Democracy and Human Rights (EIDHR).

A recent report by the Dutch Advisory Board on International Issues concluded that confronted with recent developments in Poland and Hungary, the EU could use its leverage of the substantial financial support that flows to these countries. Yet this Dutch commission is cautious: it says there is no ‘silver bullet’ solution and the situation in these countries is very complex. A conclusion that may be realistic - but could we ask for a little more indignation that could feed a little more toughness in the political stand?

The EU is perceived by many as an organisation that is both inadequate and meddlesome. On the one hand, many Europeans believe refugees are a burden to society because they take jobs and social benefits that would otherwise be available to citizens of each nation. On the other hand, the EU is accused of eroding national pride and identity. This has been the discourse of the not-so-centre political parties in the Netherlands, but recently also of the Christian Democrats. In a recent speech, Christian-Democrat leader Sybrand Buma said that freedom and equality are not the prime Dutch values - the true values are rather the traditional notions of community and decency. He disregards that the tandem of freedom and equality is precisely the core of the European Union.

Some more examples from the Netherlands. Discrimination is a serious issue of concern in the Netherlands, and for many years now Amnesty has been addressing ethnic profiling by the Dutch police. There are ongoing concerns on refugee policies, which are lacking in their compliance with the Refugees Convention and offer far too little protection to refugees. And a last example: the Law on Intelligence and Security Services popularly known as the ‘Sleepwet’ or Trawl Law, as in hauling a net to catch many fish. It should come into force in 2018 and organisations including Amnesty are now petitioning to stop it. The law will allow the Dutch government to tap information from many citizens who are not suspected of any crime. Intelligence services will be allowed to hack phones, computers and other devices. And the information gathered can be channelled to other services, including foreign ones. This contravenes principles of the European Convention on Human Rights, such as the articles on liberty and privacy.

The Dutch space for civil society may not be in clear and present danger now. But in Hungary the process has been going on for years, slowly and rather inconspicuously, while in Poland it has a lightning speed. Both situations should make us vigilant. We are already experiencing more frictions in the public debate. In the heart of the European Union, we are not immune to the shrinking space. I am proud to say that in the Netherlands, Amnesty has started a Human Rights Dialogue in which we discuss with our members and sympathisers what questions to address in our society and how to put them into words.

Lessons learned

In the concluding part of this lecture, may I first quote to Peter Baehr’s Non-Governmental Human Rights Organizations in International Relations (2009): ‘Typically’, Baehr writes to:

‘NGO representatives stay in their jobs for many years, while the government representatives are periodically rotated. Here also the cooperation between general human rights organizations and organizations that are specialized in a particular topic may produce important results. While the former know more about procedures in intergovernmental organizations, the latter possess the necessary specialized knowledge of the subject’.

Human rights organisations generally originate from feelings of empathy, solidarity and indignation about injustice, with international law only later becoming the basis for campaigning. That was also what Peter Baehr noted in his article on Amnesty’s mandate (1994). Civil society is a volatile field, it thrives on many initiatives that may be unexpected and appear not so well organised. Civil society is much more than a small number of well-knit organisations (trade unions, some churches, consumer groups). Successful NGOs retain a level of porosity for politics, otherwise they cannot survive in society. These qualities are of particular interest too for NGOs in countries such as Hungary and Poland.

What we have learned in terms of protection and support regarding CSOs and NGOs is that there are various levels. One level is governmental and parliamentary. It is the sphere of law making and concomitantly stopping the laws that are a threat to civic space. In these efforts we, that is the international community, can use the existing institutional channels including international organisations and procedures.

Another level is that of discourse and the power to label and frame. I refer to what my Hungarian colleague Julia Ivan brought up: the need for a better narrative, a translation of laws, procedures, arrangements and values, so as to make them accessible and convincing for a wider audience. The social media could be a great tool for this, but are now most vividly used by adversaries of civic space. Simultaneously, we should be aware that these media are also used by government-liaised groups and individuals, by trolls and hackers. And by anonymous people who in Dutch are called ‘reaguurders’, those who spit out on the internet what they mostly do not dare say in the real world.

And then there is the level of openings to directly reinforce the capacity to maintain and create civic space. It is specifically on this last level that the countervailing power of civic organisations and human rights defenders comes to the fore.

In short, we have the institutions for legal protection, the media for fostering commitment, and the organisations for outreach to all sectors of society.

We have found that we can celebrate initiatives great and small that are opening new space for dialogue and action. Leaders gave us important examples of pioneering ways to challenge authority and make space for dissent. I think of Martin Luther King, Gandhi, Desmond Tutu and Václav Havel – and for a considerable time Aung San Suu Kyi was in their midst.

An important lesson we have learned is that our countervailing power so far simply has not been strong enough. Why is that? Should we work on a paradigmatic change, whenever that would become possible, since only a major upheaval would bring the changes that we need? That is the line of author Naomi Klein in her book No Is Not Enough (2017). These are calls for revolution, not just civic resistance. More moderate views are to be found with authors such as Michael Ignatieff. In a recent book, he re-emphasised the smaller steps of dialogue and adjustment. His view is that universal values such as those of human rights are indeed the most important yardsticks we have - but that we have to realise that local rights and wrongs are being perceived in ways that do not immediately tie in with human rights discourse.

The way forward

Coming to the end of this lecture I would like to list what can be, in terms of a way forward, a path to escape from the fyke of shrinking society. I come back to the three levels I mentioned earlier.

On the institutional level, the importance of fundamental freedoms should be sustained by foreign governments and the institutions of the European Union. Who in turn, of course, should be urged by civic organisations in the home countries.

On the level of media and communication, we need a convincing narrative that connects with the everyday life of citizens. Social media, mainstream media and civic organisations are the actors here. They could do once more for Central Europe what many of them did during the decades of the Cold War. In that epoch, the great majority of the population had much less knowledge of, and access to, human rights information than they have now. Human rights education, in the view of my colleagues in Hungary, Poland and other European countries, is one of the most effective ways of connecting to young people. Evidently this is an investment in the future.

On the organisational level, I should first of all mention what is a daily effort of many of you gathered here: good academic research. Shrinking space is a complex phenomenon. To clarify the issues and to digest those into findings and recommendations, academic research of a broad range is crucially important in addition to reporting by NGOs. Also, civil society organisations should support human rights defenders and their associations. That support may be financial and technical, it may consist of meetings and invitations to come to other countries, and it should be buttressed by public campaigns and petitions.

In sum, there is a role for each of us. Do not wait for others since, as my colleague Julia Ivan noted in regard to the European institutions, you will be too late. We should act in full awareness that large segments of the population aspire after a society that turns out not so civil. Our countervailing power is only as strong as our commitment to human rights.

Once more John Locke

I close this lecture by coming back to John Locke. Shortly after having returned to England, he published his Second Treatise on Government (1690). In which he wrote: ‘Where-ever any number of men are so united into one society, as to quit everyone his executive power of the law of nature, and to resign it to the public, there and there only is a political or civil society’. What Locke feared most was lawlessness that would turn back civil society into an arena of struggle for power. Let us not label Locke a human rights defender over three hundred years after the fact - but we can call him a paragon of clear reasoning and argumentation. As was for me, as I said in the beginning, Peter Baehr.