The Role of the ABA in Addressing the Rising Misuse of Criminal Processes Against Worker Rights Advocates

A revised version of this article has been published in the ABA Journal. Find it here.

Next time you put on that top fashion-brand garment made in Bangladesh, consider the workers who produced it.  Are they still alive, despite wages below poverty level and unsafe working conditions? Or have some been killed or injured in a factory collapse or fire, or in an attempt to strike for better working conditions and wages? Have their employers or the government filed unfounded criminal charges against them for daring to negotiate at the bargaining table? Despite a groundswell of international support for labor reforms after the 2013 collapse of the Rana Plaza factory building in Bangladesh which killed or injured more than 3600 workers, the repression against workers who advocate for better terms and conditions of work in the world’s second largest garment manufacturing export sector has not improved. A recent international complaint by global union leaders against Bangladesh documents the ongoing violence and criminalization against union leaders and worker rights advocates in the country.

Restrictions on Freedom of Association Undermine Democratic Governance

The resistance to the rule of law in Bangladesh offers a telling example of the rising impunity for attacks on worker rights advocates around the world. These attacks have implications far beyond labor disputes. As one of the oldest and strongest social movements, the labor community has utilized the right to organize and associate as a means to not only promote worker’s rights but also to ensure the participation of their members and supporters in democratic processes.

Unfortunately, the right to freedom of association is increasingly under threat, as rising authoritarianism has led to the adoption of laws in over 80 countries restricting this fundamental right. Not content to restrict fundamental freedoms through legislative measures, authoritarian regimes are also increasingly attacking judicial independence in an effort to consolidate control This in turn has enabled the increased use of criminal law to chill the peaceful exercise of freedom of association and assembly. Sadly, the COVID-19 pandemic has served as a pretext to further restrict civic space and freedoms with such measures as emergency declarations that limit or suspend rights and freedoms, and revisions to long-standing labor law protections on working hours and union organizing

Instances of unjustified arrest, detention and prosecution are often signs of a broader onslaught against the rule of law and fair trial rights.  International experts and rapporteurs have urged that states be accountable for such restrictions which obstruct social progress and equality, democratic governance, and sustainable development.   Such assaults are made possible by political or financial capture of prosecutors and the judiciary and even parliaments  which pass criminal laws with broad or vague prohibitions against public gatherings, unions and journalists that express independent opinions. Restrictive reforms of labor laws that claw back long-standing worker protections and union freedoms, some of them hidden in omnibus bills involving multiple fields of legislation, have been reported in countries as diverse as Australia, Belarus, India, and Myanmar.  While labor law alone is too narrow to repel all dissenting voices, the combination of labor restrictions with criminal harassment and penalties mounts a formidable assault on human rights and a fair legal process essential to democratic governance.

Criminal harassment is a powerful tactic used to intimidate and silence human rights defenders including trade unions and other workers’ rights advocates. While the global scope of the practice is not fully known, a recently-released survey by the International Trade Union Confederation (ITUC)—based on reporting from its affiliated unions in 149 countries—has reported that nearly 70 countries resort to such practices and the climate of impunity is spreading.  Last year's survey identified “judicial harassment” in the form of arbitrary arrest, detention or frivolous criminal prosecution as the most common type of attack on freedom of association, representing 334 of a total of 604 attacks on defenders of business-related human rights issues in 2020.  Now, among countries surveyed, those which arrest and detain workers for exercising their freedom of association have risen from 25% in 2014 to more than 45% in 2021 - a figure representing 68 countries.  In an even steeper increase, the percentage of countries that now criminalize the right to strike has risen from 63% in 2014 to 87% in 2021.

For the 2021 ITUC report, information was missing from 15 of the 163 countries in which the ITUC has affiliates, possibly due to censorship by governments or employers. In addition, regions where there are few if any active and independent trade unions or media networks still escape adequate visibility, including the Gulf countries, as well as countries such as the Democratic People’s Republic of North Korea that are not members of the International Labour Organization (ILO) which operates reporting and complaints mechanisms based on member states’ obligations to respect freedom of association and report on relevant law and practice.

Increasingly Evasive Means of Criminal Harassment Present New Challenges

While blatant criminalization of protected activities is not new, recent accounts reveal an upswing in more complex prosecutions that avoid overt criminalization of legally protected activities and instead allege serious crimes but without substantial evidence. The wide range of criminal charges reported by unions and other advocates as well as United Nations (UN) monitors includes disturbance of public order, threats to public health, incitement to discord, damage to property, tax fraud, defamation and criminal penalties for insulting the nation’s leaders or lèse majesté (insulting royal authority), cybercrime, terrorism and extremism and the usurpation of private land.  In some cases, trumped-up charges were imposed or threatened against family members or applied to only one person although many supported the activity alleged as an offense.

Evasive tactics of criminal harassment help perpetrators avoid accountability. Serious cases go unreported due to the lack of documentary evidence of official abuse and the absence of final judgments which make it more difficult to prove details of the incidents.  In a “catch and release” pattern, for example, public authorities arrest, detain and then release their victims without charge but subject to threats of re-arrest and mistreatment if they resume advocacy and organizing efforts. In other cases, prosecutors impose charges but fail to pursue prosecution, subjecting defendants to life and work under the threat of prosecution, reputational damage and court-ordered hearings that interrupt trade union work. In certain instances, factory or other business owners who file complaints that led to criminal charges withdraw their complaints in response to demands by supply chain partners or civil society but the public prosecution will continue. Even absent ongoing prosecution, the reputational harm of such abuse of process can have a lasting impact.

Even when victims are released or acquitted, the very act of criminal harassment against worker rights advocates causes harm.  At an individual level, the union activist or advocate suffers violations of their human rights to personal security and liberty, freedom of association and freedom from anti-union or other discrimination. At a collective level, the acts violate the internationally-recognized rights of trade unions to be free from interference with the trade union’s establishment, administration, organizing, and resources. Even benign rulings can have lasting adverse effects, for example, where laws prohibit persons with criminal records from leading trade unions.

Tackling Impunity on the Ground

Promoting the rule of law and government accountability for rights violations is part of the mission of the American Bar Association (ABA). The ABA's work against criminal harassment of trade unions and worker rights advocates covers both in-country and international level action.  The ABA’s programs contribute legal and professional expertise to support labor and related advocacy organizations in combatting impunity fueled by deficits in the rule of law.

To date, the Justice Defenders Program of the ABA Center for Human Rights has intervened in 63 countries on behalf of about 1000 defenders facing attacks from unjust criminal laws or legal process, including unionists, environmental activists, journalists and indigenous peoples.  In response to recurring requests from workers' rights groups in cases of criminal harassment, the Center has supported trade unions and their members and other advocates facing arrest, detention and prosecution on unfounded criminal allegations, and strengthened local efforts for reforms in law and practice.  Among its labor-related activities, through its global pro bono network, the Center has helped achieve greater adherence to fair trial standards by conducting trial observation. It has assisted labor activists, lawyers and local legal associations in documenting violations and engaging transnational companies to press suppliers to drop frivolous charges against workers.  The Center has also worked with governments to reform their national laws and practices to ensure respect for fundamental rights, including laws on freedom of association and assembly. 

Through its trial monitoring program in coordination with TrialWatch Initiative, the Center provides credible and independent accounts of criminal proceedings that buttress the reports of violations published by union activists, related worker rights groups and NGOs.  The program has recently documented the violation of fair trial rights and other human rights of trade union activists facing frivolous criminal charges in Bangladesh, Cambodia, Ecuador and Zimbabwe.  By exposing patterns like “catch and release” and highlighting the lack of independence of the judiciary, prosecutors and law enforcement that fuel impunity, these ABA reports have provided valuable perspectives for policymakers and corporate decisionmakers on legal and institutional contexts that enable abuse of process against worker’s rights advocates. 

The ABA pro bono networks include criminal law experts who support the work of labor lawyers forced to contend with a wave of criminal charges. ABA volunteers work behind the scenes to contribute on-the-ground legal support to local defense lawyers or to make direct contacts with authorities in cases of trade unionists and other activists facing spurious charges under wide-ranging criminal laws. In Bulgaria, for example, the Center urged the prosecutor general to withdraw charges brought against the leader of a pharmaceutical union for making television statements relating to EU reports of potential shortages of medicine in light of the COVID 19 pandemic on the grounds of committing a crime against public order and peace; subsequently, she was reportedly fined rather than subjected to a criminal prosecution

In targeting system-wide changes in laws and practices used in criminal harassment of worker rights advocates, ABA pro bono lawyers support local advocates’ efforts for reform of ambiguous or unjust criminal laws, or their unfair application by courts or prosecutors.  The ABA Center for Human Rights has offered legislative and comparative law expertise and, where appropriate, made direct contact with governments and IGOs, as well as support to local bar associations, trade union legal advisers and other civil society actors.  In Eswatini, for example, the Center staff and pro bono attorneys provided a legal analysis of amendments needed to a Public Order Bill in order to protect the exercise of freedom of association and assembly and expression which subsequently improved following a diplomatic initiative which built on ABA’s work. As an implementer of justice sector and rule of law reform efforts, the Center’s initiatives also seek to strengthen the independence of the judiciary and law enforcement institutions to combat impunity in the criminalization of unions and labor rights advocates. The program includes exposing laws and practices compromising the judicial system and leveraging international support to prevent the abuse of criminal process and misuse of force by the police and military. Recently, the Center exposed politically-motivated disciplinary proceedings against an independent judge in Poland, and conducted a joint fact-finding report with five regional and international bar associations and legal NGOs to assess the threats to the independence of the legal profession in Tanzania and resulting crackdown on the rule of law, democracy and human rights.

Building Accountability Through International Legal and Political Action

At international levels, the ABA is dedicated to enhancing the international legal system’s effective action against criminal harassment to help worker rights advocates in combatting impunity by public and private actors seeking to chill the freedoms of trade unions and other human rights defenders. The Center contributes to the work of international, regional and multilateral organizations that operate treaty-based and soft law mechanisms to hold states and others accountable for criminal harassment and other rights violations. These arrangements, including within the UN and the ILO, depend heavily on outside experts and advocates to bring well-documented complaints and country reports to their attention and build consensus for reforms and remediation. Since international human rights law generally permits wider restrictions on freedom of association than ILO standards, the ILO mechanisms remain the fora of choice for worker organizations to bring cases and country situations involving violations of the right to freedom of association.

At the ILO, the Center has provided behind-the-scenes support to labor and related organizations with standing as ILO constituents to participate directly in ILO’s case-based and country-reporting mechanisms. The Center staff and pro bono lawyers have helped to document and prepare complaints against restrictions on freedom of association to the Committee on Freedom of Association, constitutionally-based representations and complaints, and comments on country situations for the ILO Committee of Experts and the Conference Committee on the Application of Standards. The 187 ILO member states share membership obligations to ensure freedom of association principles, including that employers respect and facilitate organizing and collective bargaining.  All members also have reporting obligations under Conventions they have ratified and Recommendations that offer guidance to all members. Specific international labor standards on freedom of association recognize the rights and freedoms of workers’ organizations to develop, operate, and defend their interests as collective entities.  In its reports on complaints or country situations, the ILO calls on states to tackle the lack of accountability that cripples the peaceful exercise of freedom of association through legal and institutional reforms, and reparations for harm done. While the ILO regularly follows up such decisions, compliance with its calls for reform is incomplete or is not sustained over time, as with a Commission of Inquiry report in 2009 on Zimbabwe and another in 2004 on Belarus, the implementation of which is monitored by the Committee on Freedom of Association.

In recognizing that the “criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations” (Compilation of CFA Decisions, para. 974), the ILO often uses technical assistance and training to repair the breakdown of social dialogue and tripartism and restore a healthy industrial relations climate to resolve disputes at the origin of power struggles that fuel criminal harassment to silence workers’ and other independent voices. In March 2021, upon review of the constitutionally-based complaint brought by workers against Bangladesh for alleged violations of its obligations to ensure freedom of association rights including by criminalization of union protests, the ILO decided to offer a package of technical assistance and left pending the request for an independent investigation of the allegations.

At the UN and Inter-American human rights systems, the Center coordinates with labor and related organizations to bring criminal harassment cases and country situations to the attention of UN special procedures and human rights treaty bodies. Some mandates investigate violations of freedoms of association, assembly and expression while others address violations of other human rights implicated by criminal harassment of worker rights advocates such as arbitrary detention, and fair trial rights.  Despite heavy caseloads and multiple priorities, some UN experts use their limited resources to expose such wrongs and to call on states to reform laws and practices and remedy harm. For example, on country visits to monitor freedom of expression, freedoms of association and assembly, human rights defenders, and human rights while countering terrorism, UN experts have criticized the use of vague or overbroad criminal laws to target the exercise of freedoms, and called for such laws and practices to be brought into compliance with international standards  . In addition, with the Center’s drafting support, the UN Special Rapporteur on freedom of association and assembly released a resource handbook on litigation and advocacy for freedoms of association and of peaceful assembly. Late last year, following a communication submitted by the ABA involving a detained human rights lawyer in Tanzania, the UN Working Group on Arbitrary Detention called for his release and reparations as well as reform to the country’s law and practice to conform with its international obligations.  And at the Human Rights Council last year, the ABA documented the criminal harassment of journalists and human rights defenders for the Universal Periodic Review of human rights in Mozambique, exposing these practices to international attention.

Leveraging trade arrangements can promote enhanced accountability for criminal harassment where respect for freedom of association and assembly is a key condition of eligibility for generalized systems of preferences and other preferences, The ABA Center for Human Rights provides well-documented factual records of violations and analyses of rule of law deficits for the EU and US authorities’ review of countries’ continuing eligibility.   Last year, the Center’s work on criminalization of labor activists in Cambodia contributed to the European Union decision to temporarily withdraw Cambodia’s eligibility for trade preferences on certain products until the government made progress in protecting political participation and freedoms of expression, association, and assembly and remediating violations.

The Path Toward Increasingly Effective Responses

The persistent impunity for criminal harassment against trade unions and other advocates around the world calls for fresh approaches, both in-country and at international levels. Any successful approach will need to move beyond building the capacity of labor and justice sector personnel to promote the independence of these sectors. Enhanced coordination between the labor and human rights communities can help promote accountability by increasing attention to those States with a persistent record of non-compliance with the recommendations of the ILO and the UN..

As outlined above, the human rights community can support accountability through trial observations and petitions to relevant regional and international bodies, including UN special rapporteurs and the UN Working Group on Arbitrary Detention. Such fact-finding activities not only ensure accountability but they also shed light on ways to mutually reinforce the capacity of both the criminal justice and labor sectors. Currently, efforts to build the capacity of these sectors are not well coordinated. As a result, opportunities to engage in mutually-reinforcing technical assistance programs are lost. For example, efforts to build the capacity of a national labor ministry to prevent reprisals by employers in the workplace will have much more impact if employers can no longer resort to using the criminal justice systems as a means of engaging in reprisals.

Human rights fact-finding can assist efforts to build accountability by providing useful information on whether misconduct by justice sector personnel is intentional or due to lack of capability.. Such information is critical to ascertaining whether technical assistance is likely to be effective. For example, trial observations can identify instances of intentional misconduct by particular prosecutors or judges or irregularities that suggest a corrupt motive. In such situations, types of interventions beyond technical assistance may be needed for effective action, such as sanctions in the case of government corruption or home-state accountability for abusive enterprise activities.

The impetus to combat business misconduct like criminal harassment is growing as some home states of leading enterprises have themselves begun regulating their own business’ responsibility relating to freedom of association and other fundamental rights in their supply chains.  Mandatory due diligence laws have been developed at national level including in France and Germany, and the European Union has issued a resolution with recommendations for a directive on the topic. These new regulatory approaches require companies to show results-based measures that ensure respect for international human and labor rights norms at all tiers ofbeyond their immediate employees or contractors extending further down the supply chain operations. 

In step, the ABA’s Contractual Clauses Project has launched 33 model contract clauses for business lawyers to use in negotiating supply contracts that integrate shared responsibility between buyers and suppliers for human rights due diligence and performance in their supply chains that are aligned with international human rights norms, including international labor standards and fair trial rights. Other promising trends include the promotion of anti-SLAPP reforms involving laws to curb strategic litigation against public participation or advocacy brought at the initiative or with the participation of business or other private actors, and improved measures for labor rights coverage and public participation in the implementation of Generalized System of Preferences and other trade arrangements.

With strategic approaches to promote accountability through law and international systems, labor and human rights groups have tools to contribute to increasingly effective responses to combat the criminalization of freedom of association around the world.  International law has long recognized the right to freedom of association as a fundamental freedom that serves to safeguard democratic governance. It is therefore essential to develop innovative approaches to protect freedom of association to enable greater protection of worker rights as well as continue to serve as a guarantor of democratic governance.  

The ABA Center for Human Rights would like to thank Janelle Diller (ABA consultant and former legal counsel to the International Labour Organization who played a major role in the Rana Plaza Arrangement to compensate injured workers and surviving dependents of dead workers) for her work drafting the blog. It would also like to thank Brittany Benowitz, Chief Counsel of the ABA Center for Human Rights, for managing the drafting and review of the blog. This blog reflects their views. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole. Further, nothing in this report should be considered as legal advice in a specific case.