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The Human Rights Blog of the Leitner Center for International Law and Justice


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Russia’s undesirable organizations law: the next step in the assault on foreign aid and influence

By Thomas M. Callahan

Earlier this year, as the Russian parliament was discussing a draft law restricting the operations on Russian territory of so-called “undesirable organizations,” I speculated that the bill would probably not pass the legislature in my Note for the Fordham International Law Journal, which focused on legislative restraints to foreign influence in Russia. In a section on provisions under review in Parliament, I included a brief discussion of the bill to illustrate some of the kookier ideas being debated in the Russian legislature.

It passed, though, and was signed into law by Russian President Vladimir V. Putin just as my Note went to publication at the end of May. By the end of this summer, I had met and spoken with enough lawyers and other human rights workers in Moscow and across Russia to know that the law is having serious consequences: many reputable Russian human rights attorneys at a range of organizations, both international and domestic, told me that, essentially, the jig is up, and they’re on the market for private sector work. In recent weeks, I’ve started seeing more posts on Facebook than usual about fleeing the country.

SETTING THE GROUDWORK

Technically, the Law on Undesirable Organizations is doing exactly what it’s supposed to. But it didn’t come out of nowhere: in summer 2012, Russia had adopted the Law on Foreign Agents, a similar set of provisions dealing exclusively with domestic organizations. The Law on Foreign Agents, among other things, required some non-profits receiving operational funding from outside Russia – as human rights organizations there nearly universally do – to register with the federal government and advertise their status as “foreign agents.” In colloquial Russian, the term “foreign agent” is equivalent with “spy.” These groups are also subject to random audits that often function as raids on records and also equipment like computers.

The organizations that are required to register are those engaged in “political activity,” a term whose definition Russian courts have yet to categorically decide. But, generally, any project with an element of advocacy for policy change can constitute “political activity.” And if the advocacy is for a change to Russia’s policy on Crimea, it could constitute a “threat to the territorial integrity of the Russian Federation,” an extremist crime. Many small, politically inconsequential human rights groups, who are doing extremely brave and crucial work, are now listed as “foreign agents.” These groups must now disclose that they are a “foreign agent” on the front page of their website and any of their publications. The Law on Foreign Agents is a great facilitator of self censorship: the heads of multiple Russian human rights organizations have told me that they would prefer to fold their organization instead of paying the massive fines that come with continued operation of an unregistered “foreign agent” group, or the legal fees of appealing the determination. By February of 2015, numerous groups had chosen to shut down instead of continuing to operate with a “foreign agent” status. Furthermore, there is no due process in how organizations are identified or registered as “foreign agents.” The Ministry of Justice can add an organization to the register of “foreign agent” groups, technically, without having to actually notify the organization.

While the Law on Foreign Agents creates a more hostile environment for Russian human rights workers, it has very little practical impact, other than making Russian human rights workers a little more uncomfortable in an already inhospitable environment. More importantly, it does not cut off funding. This is where the Law on Undesirable Organizations comes in.

A STRANGLEHOLD ON CIVIL SOCIETY

The Law on Undesirable Organizations is actually a set of amendments to various Russian laws, including Russia’s Criminal, Criminal Procedural, and Administrative Codes; the Law on Procedure for Exit from and Entry to the Russian Federation; and the Law on Measures Against Persons Involved in Violations of the Fundamental Human Rights and Freedoms of Citizens of the Russian Federation (usually called the Rights and Freedoms Law). .

The main feature of the Law is that it gives officials the power to deem certain non-Russian and international organizations “undesirable.” These organizations will then have their activities limited or banned in Russia, and their assets can be frozen. It was hotly discussed in the months leading up to its passage, primarily in Russia’s community of human rights workers, which I joined in 2010. The law establishes that the activities of non-Russian or international non-governmental organization that represent a “threat to the foundations of the constitutional order of the Russian Federation, the country’s defense, or the security of the State,” may be kicked out of the country.

Thus far, only the National Endowment for Democracy (NED), an American grant making organization working for “democracy promotion,” has been labeled as an undesirable organization. Since NED’s funding supported a variety of Russian civil society and human rights groups, this ban from operating in Russia could have serious consequences.

Under the new law, “undesirable” organizations in Russia are subjected to the following:

  • A ban on opening new offices in Russia
  • A ban on the dissemination of information by publication, including through the media, or Internet, and on the production or storage of such publications with the intent to disseminate.
  • Placement on a financial blacklist, after which Russian financial and credit institutions are barred from transacting with the organization
  • A bar on entry to the Russian Federation for non-nationals who “participate” in the activities of “undesirable” organizations

LEGAL IMPLICATIONS

Unfortunately, from an international legal perspective, the Law on Undesirable Organizations is probably perfectly legal on its face. What government should be barred from restricting the operations of foreign groups working to change the political and social contours of its society? The law itself invokes state security and threats to social order and public health as impetuses for its creation. But in practice, the law is just another blunt weapon for use in the Russian government’s assault on civil society in general and human rights in particular.

In its March 2015 review of Russia’s compliance with the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee was clear about the potential for misuse and abuse in the Law on Foreign Agents. It called on Russia to amend the law to clarify its language, and recommended removal of the term “foreign agent” entirely. The Committee and other international organizations and advocates must similarly criticize the Law on Undesirable Organizations, which invokes a cynical and twisted version of sovereignty in a bid to intimidate, starve, and ultimately banish the groups that bravely report on the various human rights violations that have become a standard feature of life in Russia today.

Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: jaime.silva/Creative Commons

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Russia’s legislature, prosecutors tighten the screws on online expression

By Thomas Callahan

With a Constitution that codifies restrictions on certain types of expression, and a storied history of targeting alternative political voices, it is unsurprising that Russia is currently in the midst of a campaign to silence inconvenient speech on the Internet.

This summer, I returned to Moscow to conduct legal research and reporting with a large international human rights organization (which I will not name due to the organization’s security concerns) as a Leitner Center Summer Fellow. I was tasked with researching and writing a report documenting this recent free speech crackdown in Russian legislation. This included reading Russian laws, tracking down copies of bills, and interviewing targeted activists across the country.

INCREASING SPEECH RESTRICTIONS

Having worked in Russia for years, and having been here when members of Pussy Riot were thrown in remote prisons on “extremist hooliganism” charges, I find no limits on freedom of expression really shocking anymore. But practically speaking, the sheer number of recent legislative restrictions to online speech means that human rights and free speech advocates in Russia are increasingly unsure about what could bankrupt an organization via administrative fine, or land people in jail. Although some of these restrictions identify concepts like “separatism” and “extremism” as general considerations, in practice, prosecutors increasingly conflate criticism of Kremlin policy in Ukraine, for example, with “threats to the territorial integrity” of the Russian Federation. These laws can also allow Facebook invitations to civil society events to be taken as incitement to rioting. Application of these laws is used mostly to harass political activists.

With many more such legislative proposals in the pipeline, it’s no wonder the old Soviet saying about living on top of a volcano – essentially, waiting for a governmental or societal eruption at any moment – has come back into vogue. The situation is so dire that since March 2014, Russia has been included in a group of only 19 governments in the world to be classified as “Enemies of the Internet” by Reporters Without Borders.

And while the main threat to freedom of expression comes from censorship laws, Russia’s legislature has been hard at work creating various other kinds of new rules for the Internet. These include – but are definitely not limited to – a new provision passed in May 2014 to Russia’s Law On Information that regulates blogs. Dubbed the “Bloggers Law,” it subjects any blog that gets 3,000 or more unique hits in a 24-hour period to many of the same federal regulations as national media conglomerates. The United Nations Human Rights Committee called this law both “vague” and “burdensome.” Indeed, it not only increases legal scrutiny, but also liability for charges like “incitement to rioting,” which is how prosecutors often refer to invitations to “unsanctioned” demonstrations. For these “mass media bloggers,” some types of speech carry a fine totaling 500,000 rubles – about 60 percent of the average annual income in Russia. In other cases, liability may reach one million rubles. With about 65 percent of Russians using the Internet regularly, these laws have real implications on the ability to access information.

Meanwhile, Russia’s prosecutors have been relying on the same, troubling old “extremism” sections of the Criminal Code to harass activists for what they say, or even share, online. In a country compliance review for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee warned that the “extremism” sections of Russian criminal law could be used “silence individuals critical of the State party’s foreign policy[.]” One of the higher-profile cases this summer centered on exactly that fact set. Recent use of one “anti-extremism” provision that threatens speech online has included the conflation of harmless criticism of Russia’s annexation of Crimea with a “threat to the territorial integrity” of the Russian Federation.

It is generally accepted that governments can restrict certain types of harmful speech, such as hate speech. But Russia’s restrictions on online expression are blatantly used to silence unorthodox political voices, which is illegal under international human rights law. While case-by-case restrictions on free speech in specific instances, such as tangible threats to public or individual safety, could be legal, such a process is rarely used in Russia.

CONTROLLING THE FLOW OF INFORMATION

Aside from restricting individual voices online, Russia is creating new controls on how online information flows and is accessed. Since November 2012, Roskomnadzor (the federal media and telecom oversight agency) has maintained a list of banned websites. In its March 2015 review of Russia’s compliance with the ICCPR, the U.N. Human Rights Committee noted that the Internet black list is part of “a number of developments that create separately and jointly a substantial chilling effect on freedom of speech and expression of dissenting political opinions.”

Although a searchable database allows users to find out whether a single website has been blocked, the full list is not made public. We do know that, as of this summer, about 30,000 websites are blocked within Russia. Many of these are child pornography sites and online narcotics markets. However, many of them are also websites linked to prominent political activists. With the recent passage of a law restricting the activities of “undesirable organizations,” many international human rights groups could end up blacklisted online in Russia as well. No court order is necessary; if an official in one of a few federal agencies – or a court finds that a website has published some sort of “banned” information – Roskomnadzor will order Internet Service Providers to block access to it within Russia. Prosecutors and other federal authorities will generally point to information that would be subjected to Russia’s notoriously problematic “anti-extremism” laws when attempting to block a website.

One of many examples of unjustified interference with free speech is the Prosecutor General’s targeting this June of OZPP, a consumer protection group, after it published a legal memo advising Russian citizens against traveling to Crimea, which it called an “occupied territory.” In Russia, such an opinion may constitute a “threat to territorial integrity,” which is why the Prosecutor ordered Roskomnadzor to block parts of the organization’s website, and called on federal investigators to begin an inquiry under an “extremist” provision of the Criminal Code. OZPP could be tried under the “separatism” provision, which carries a five-year prison term. In an obvious due process violation, OZPP only learned that a case against it was already underway days later, after clients reported that they were having trouble getting its website to load.

Regulation of well-trafficked websites remains in flux, as legislative discussion opened in June on a set of amendments to the Law On Mass Media. Proposed changes would introduce the concept of “online publisher” to the law, and this is not a good thing. The bill is vague, but it would appear to subject any host website to mass media regulations if any single one of its pages gets three thousand or more unique visitors in one day. News aggregator websites, the websites of political movements and message boards are some of the main targets of this proposal.

WHAT SHOULD RUSSIA DO?

There is no place for such broad and obvious restrictions to political speech in the year 2015, especially in a country like Russia, whose actions at home and abroad have the power to sway a whole cabal of governments in its large sphere of influence. It is also not too attenuated from these developments to note Russian prosecutors’ congenital conflation of unsanctioned civil events with “mass rioting.” This peculiarity of Russian law enforcement’s relationship with society is a metaphor for the general lack of case-by-case investigation and due process broadly in the Russian legal system. Russia must enter the twenty-first century on these issues in addition to the due process questions regarding speech specifically.

Moreover, Russia is party to both the main international regional treaties that codify freedom of expression: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. Russia has an obligation to conduct case-by-case examinations of restrictions to speech, and not to create functionally blanket bans on some political questions. These types of restrictions are illegal no matter what. Under the European Convention, if a State party restricts expression, it must establish and disclose a purpose that relies on a security or other concerns commensurate with the degree of censorship. Russia fails to do this all too often, a practice that must end.

Furthermore, Article 29 of the Russian Constitution absolutely bars censorship (though this is incongruous with other sections of the constitution). Article 17 of the country’s Constitution also establishes international treaty obligations as an extrafederal basis for domestic legislative and jurisprudential practice. Under its own laws, Russia must bring its legislative and law enforcement practices into compliance with the international obligations it chose and claims to recognize.

Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo courtesy of Thomas Callahan.


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Self-fulfilling propaganda: the effects of arming Ukraine

By Chris Beall

Did you know that in November 2013, Ukrainians overthrew their legitimate and democratically elected government in a violent, Western-supported coup? Did you know that later in April, the Kiev military launched a brutal campaign against the nation’s “independence supporters” in Donbass, or that, through a sophisticated Western propaganda campaign, the U.S. has maliciously and wrongfully painted Russia as the conflict’s aggressor?

How about the “very likely” belief that most weapons possessed by the independence supporters are, actually, locally sourced? Or the fact—substantiated through multiple neutral inspections—that no indication of Russian military activity has yet to be detected along the Ukrainian border? That “Canada, Britain, the U.S. and the boys with their toys in NATO headquarters are looking for a fight with Russia,” and that these Western nations are implementing policies in the region based on “imperial hubris instead of science and expertise?”

So goes the discourse, under the Russian propaganda machine. This is what journalism looks like when the Kremlin handles your payroll.

Of course, as a preface, let’s not oversell this. Our own media system is no stranger to questionably selective cherry-picking. It’s rare even in the West to find a truly nuanced treatment of the Ukraine crisis: one which takes seriously Russia’s real geostrategic interests in the region, or, for example, the important role played by Ukrainian gas debts in explaining Russia’s reaction the above-noted coup.

And yet, without myself being on the ground in Donetsk, I’ll go out on a limb here and say that the bulk of the above amounts to utter absurdity. Amnesty International has highlighted the mounting evidence of direct Russian involvement in Ukraine, and a recent report by the Royal United Services Institute, a British security think-tank, confirms the same.

Writing for Foreign Policy, Peter Pomerantsev argues that Vladimir Putin’s greatest political success in recent years has been his construction of a truly modern Russian propaganda apparatus: a selective information machine marked by glitz and innovation beyond the scope of its stale Soviet predecessor. According to Pomerantsev, Putin has created a willingly captive audience for the narratives disseminated out of the Kremlin—claims like Ukraine’s new government being run by neo-Nazis or the borderline-paranoid assumption that the United States and NATO are constantly plotting to weaken and undermine Moscow. This partially explains Putin’s extraordinary 86 percent approval rating as of late, despite the virtual collapse of the ruble and Russia’s increasingly repressive domestic police measures.

But what is perhaps the most remarkable in all of this post-Soviet propaganda regarding the Ukraine crisis is how badly certain elements of our own government in Washington apparently seek to legitimize these exact narratives.

As the less-than-optimistic Minsk II peace treaty between Kiev and Ukraine’s Eastern Provinces limps onward, conversations have already resurfaced in Washington encouraging President Obama to arm the Ukrainian government with lethal aid and military assistance, aimed at countering Putin’s aggressive foreign policy actions. Just on March 4, a bipartisan mix of eleven U.S. Representatives brought a new letter to President Obama, urging the “transfer of lethal, defensive weapons systems to the Ukrainian military.” Meanwhile, Director of National Intelligence James Clapper, U.S. Army General Martin Dempsey and our new Defense Secretary Ashton Carter have each displayed some willingness to adopt such a policy.

Needless to say, there is some logic to arming Kiev. These sorts of arms shipments are an all too familiar form of asymmetrical hard power, employed by nation-states all over the globe. The basic idea is to put Ukraine in a position where it may drastically increase the strategic costs of Russian intervention in the region. Put bluntly, the goal is to kill increasing numbers of Russians fighting alongside Eastern Ukrainian separatists, and thereby erode Putin’s domestic approval as casualties mount. Or, as Jeremy Shapiro of the Brookings Institution summarizes, “The government supposedly fears the ire of Russian mothers whose devotion to the well-being of their soldier-sons can move political mountains even in authoritarian Russia. Rather than face a growing number of aroused and organized Russian mothers, the thinking goes, President Vladimir Putin will avoid escalation in Ukraine.”

However, while this form of containment policy can be implemented cheaply and easily by the United States, this hardly means that it will actually solve anything. As Shapiro wisely recognizes, “Unfortunately, one of the few more powerful forces than mothers in Russian politics is anti-Americanism.” Given President Putin’s current approval ratings and the complex and multifaceted propaganda machine he has built for himself, it would be impossible for the United States to arm Kiev without providing support and credibility to the Kremlin’s U.S.-imperial narrative.

Furthermore, while it’s easy for members of the House to romantically sympathize with the ongoing struggle of the bullied Ukrainian government—as we should—it’s quite another leap entirely to think that sending guns will actually aid in their plight. Paternalistic as it may sound, it is crucial to consider the realpolitik backdrop of this conflict. Nobody doubts that geopolitically, Ukraine is far more important to Russia than to the United States. Likewise, it is clear that short of direct U.S. military intervention and open combat with Russia, nothing is really stopping the Russian military from storming Kiev and devouring the whole country, if that’s what the Kremlin actually wanted.

The risk, then, is turning this into a post-Cold War chicken match, in which the United States is almost certain to blink first, and the result of which will only reinforce the American imperialism framework that Russia has utilized to rationalize and build domestic support for this conflict. Statesmanship starts to get silly as one approaches universal approval ratings. By placing ourselves in a position where the U.S. actually does play a hand in killing Russian servicemen, Putin would have all the fuel he needs to make a real mess of things in the region.

This, ultimately, raises questions regarding the human rights concerns of this policy. By upping Putin’s stakes in Ukraine and escalating this conflict beyond the last year’s six-thousand casualties, the real losers of U.S.-Ukrainian arms shipments will be those exact victims who would benefit the greatest under a diplomatic close to hostilities. This includes future victims of Kharviv-style terrorist attacks, in Kiev and elsewhere, as well as the civilians on both sides of the conflict, currently caught in the crossfires of Donbass. An escalation of hostilities, absent some realistic end goal of peace, will simply drag out this crisis.

There’s a reason that the U.S.’s own allies are warning us not to arm the Ukrainian government. France and Germany, the brokers of the current Minsk II peace treaty, recognize that this conflict only ends diplomatically. The fact that we will rely on these nations, in any attempt to place further economic pressure or Russia, goes without saying. But the U.S.’s relationship with its allies aside, if we truly want to promote rights, democracy and peace in Ukraine, then there seems little choice here other than at least temporarily placing our bets on Minsk II. Shaky as this treaty as started, sending U.S. arms to Kiev can only cripple its efforts, and further delay a diplomatic peace in Ukraine.

Chris Beall is a Staff Writer for Rights Wire.

Photo Credit: People in Need/European Commission/Creative Commons