Safeguarding communities’ right to be heard without fear of retaliation
By Rabi Thapa
The COVID-19 pandemic led not only to tragic loss of life on a massive scale, it greatly complicated the day-to-day existence of people across the world. Virtually everyone was more isolated than before, with government-imposed shutdowns and travel bans in many countries.
This added a layer of difficulty for those facing reprisals, which in the context of development can be defined as “any type of intimidation, threat or attack against community members and human rights defenders” who speak out against perceived harmful impacts of development projects.
It’s unclear whether reprisals increased during the pandemic – no group has done an analysis yet. But interviews with independent accountability mechanisms (IAMs) and civil society organizations reveal that both reporting reprisals and responding to them has been more challenging since the pandemic began roughly three years ago.
As civic spaces shrink, threats grow
For IAMs and civil society groups working with communities, there’s no question that reprisals have been a major issue since before the pandemic. A World Bank Inspection Panel report published in 2021 called “Right to be Heard: Intimidation and Reprisals in World Bank Complaints” found that 40 percent of complaints mentioned reprisal risks and 80 percent of complainants requested confidentiality in 2020. This is up from 33 percent and 67 percent, respectively, in 2015. The report documented an upward trend in Inspection Panel cases, and requests for confidentiality and reprisal allegations from roughly 2009 to 2021 (see Figure 1 below).
Source: The Inspection Panel (2021)
The Independent Consultation and Investigation Mechanism (MICI) of the Inter-American Development Bank (IDB) has also registered an increase in reprisals. “Since 2018, MICI has noticed a rise in cases where confidentiality was requested due to fear of reprisals or acts of intimidation in communities opposed to development initiatives,” said Gastón Aín, Coordinator of MICI’s Consultation Phase. In 2021, 55 percent of the complaints received by MICI mentioned the risk of reprisals. “Since then, MICI has given utmost priority to early detection of and rapid response to reprisals, and undertook a broad consultation that led to the production of specific guidelines.”
Both IAMs and civil society actors anticipated an increase in reprisal cases during the pandemic. Adam Shapiro, formerly of Front Line Defenders, explained: “COVID meant shutdowns, and it meant that governments could use the health situation to enact very strict kinds of measures, whether it had to do with freedom of movement or freedom of expression. The pandemic gave governments with authoritarian tendencies the excuse to be authoritarian.”
Mark Fodor, Defenders in Development Campaign Coordinator, added: “The COVID response was used as an excuse to shut down civic space. Reprisals are not just an issue when they occur, but also more broadly through the chilling effect they have on impacted groups who may subsequently be afraid of raising their concerns.”
Silvia De Rosa, Specialist in Dispute Resolution at the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC) and of the Multilateral Investment Guarantee Agency (MIGA), echoed this last point: “The shrinking of civic space around the world led to an increase in threats of all sorts. But at the same time, there is a sense that we only receive a portion of potential complaints because people have been even more fearful to reach out to us during the pandemic. We may have received less complaints during the pandemic, but a higher proportion of these featured reprisal concerns.”
In November last year, a statement condemning the increased “risk of reprisals and the isolation of potential victims” during COVID-19 was issued by MICI. The mechanism reiterated the zero-tolerance policy on reprisals of the IDB Group, which mirrors that of the World Bank and other development finance institutions.
The Inspection Panel report from 2021, however, acknowledged the limits on directly intervening in cases. And herein lies the crux of the matter for all development finance institutions: How can they protect community members who speak out on the potential harmful effects of the projects that they are funding?
Speaking and acting against reprisals
Reprisals have taken place for as long as communities have contested the impacts of development projects. But it is only in the last decade that development banks and IAMs have responded with explicit positions (see Box). Publications from civil society organizations such as “Glass half full: the state of accountability in development finance” (2016) and “At your own risk: reprisals against critics of World Bank projects” (2015) have helped drive more attention to the situation.
Taking a stand against reprisals: a timeline of institutional commitments
Maninder Gill, Director, Chief Environmental and Social Standards Officer at the World Bank, said the institution has no tolerance for any threats made against complainants to a project.
“The voices of project-affected people are critical to the Bank’s work and the Bank insists upon high standards of stakeholder engagement to help achieve the best possible development outcomes,” Gill said in a prepared statement. “As spelled out in its public statement against reprisals and as provided for in its Environmental and Social policies, the Bank does not tolerate any form of retaliation against people who share their views about Bank-financed projects. The Bank takes very seriously complaints brought to its attention, including allegations of retaliation in connection with Bank-financed projects, and Bank Management swiftly works with appropriate parties to address them.”
Often, IAMs and development banks work closely together in responding to reprisals. The Inspection Panel, the CAO, and MICI, among other IAMs, all detail the options available to development finance institutions and IAMs.
Scott Adams, Senior Dispute Resolution Officer with the World Bank Accountability Mechanism, noted that progress has been made in the last few years in spreading awareness within development banks and developing guidance for IAMs: “We take complainants at their word when they report reprisals, whether this means a threat or a physical action. Our focus is ‘What’s the next step?’”
Responses may include ensuring confidentiality for those facing threats in the complaints process; advising on and improving security measures for these individuals; elevating concerns to project teams, country offices, the authorities, the national government, and the leadership of their own institutions; and issuing public statements and conducting private discussions reiterating the institutional position against reprisals – depending on what is appropriate to the situation. There is no one-size-fits-all response, and some of these tools are undertaken in collaboration with civil society organizations.
Julia Gallu, Senior Specialist at CAO, clarified the importance of securing the consent and trust of complainants for all responses: “We seek to ‘do no harm’ – we don’t want our interventions to create additional risks. We also have to be really honest with complainants about what we can and cannot do as we’re not a local enforcement mechanism. And we have to earn the complainants’ trust in every case.”
CAO’s Silvia De Rosa acknowledged, however, that “building trust has been more challenging during the period of the pandemic, because we couldn’t travel and everything had to be done online.”
From an institutional standpoint, the last-resort response to reprisals is suspension or full withdrawal from a project. However, in several cases it is possible through dialogue for a development bank’s management to work with the national governments in question to put a stop to reprisals. In both Pakistan’s National Drainage Project (2004) and Uzbekistan’s Second Rural Enterprise Support Project and Additional Financing (2013), the Inspection Panel appealed to World Bank Management, which was able to intervene, address the threats, and work out a satisfactory outcome for all parties. Serge Selwan, Senior Operations Officer at the Inspection Panel, explained that “a set of tools are used, and depending on the situation, the World Bank can use its financial leverage to press for the stopping of reprisals.”
But some in civil society claim that not enough is being done. In the June 2022 report “Wearing blinders: How development banks are ignoring reprisal risks,” the Coalition for Human Rights in Development argued that even though most development banks are committed to “meaningful participation” of the communities their projects affect, they “are often failing to identify, assess, and mitigate the risk of retaliations.” In the five cases studied, the report found that such shortcomings often lead to escalation of reprisals. In some cases, development banks either refused to take action or did so too late, according to the report.
“This isn’t just a problem for those facing reprisals,” Mark Fodor of Defenders in Development said. “It’s a problem for development banks. They don’t want to be associated with reprisals, with projects that have gone wrong because they failed to listen to what people had to say. They are putting their own investments at risk by not addressing reprisal risks. Civil society can help, but we need banks to act.”
Prevention is better than cure
The Coalition for Human Rights in Development recommends meaningful participation, retaliation-sensitive consultations, and the incorporation of reprisal risk assessments in the human rights due diligence processes that are conducted – prior to project approval.
Development finance banks, too, acknowledge the importance of frontloading efforts to tackle reprisals by heading them off early. Their often-limited ability to intervene directly with national governments means that it is much more challenging to stop reprisals once they have started, especially if state authorities are directly or indirectly involved.
This applies particularly to institutions such as the World Bank, which has had to negotiate with the sovereign entities that are their shareholders. Citing a co-dependency between zero tolerance for reprisals and the existence of safe spaces for open dialogue, the Inspection Panel report called for “continuous stakeholder engagement throughout the project cycle.” Serge Selwan was more forthright: “People create tension. So it’s necessary to set up a preventative system with meaningful consultation in advance.”
While development banks call for better national implementation of laws that protect human rights, civil society actors also call on development banks for a stronger response to reprisals, as well as support for organizations to support communities. In addition, they call for better outreach on the part of IAMs and their host institutions on how communities can raise concerns about projects within safe spaces that they have guaranteed. Ultimately, Mark Fodor argued, “Communities should have the right to say ‘No.’”
Civil society leaders do see progress, however. As Adam Shapiro concluded, “I think IAMs have become stronger. What’s being developed institutionally is much more robust and proactive in terms of trying to address the phenomenon of reprisals. They’re attuned to the problem, and now the focus is on, ‘Well, what can we do about it?’”
