One of the great achievements of the often thankless work of a human rights lawyer is when – after years of working with brave survivors of awful violations – a court or human rights tribunal makes a positive decision in a case. The human rights tribunal finds that your client’s fundamental integrity was harmed in some way, and that this harm requires redress. This legal and moral victory cannot be underestimated, and a finding of a violation can have enormous rehabilitative benefits for the survivor of human rights abuses. But, redress does not always come.
On Oct. 8, 2015, the U.N. Human Rights Committee decided a significant case. Mutabar Tadjibayeva, a well-known human rights defender, had been denouncing human rights violations in eastern Uzbekistan since 2005. She condemned the shooting and killing of hundreds of unarmed civilians by government forces in the city of Andijan in May 2005, and founded the Fiery Hearts Club.
In late 2005, Mutabar was arrested by masked and armed security forces who rushed into her home. She was charged on 18 counts of criminal activity, including tax fraud and membership of an illegal organization – her own human rights group. In 2006, she was sentenced to eight years in prison following a trial that violated fair standards. She was denied the right to prepare a proper defense or cross-examine key prosecution witnesses. Her conviction was upheld on appeal.
— Andrew Stroehlein (@astroehlein) October 9, 2015
Between 2005 and 2008, she was incarcerated for her human rights activities. During this time Mutabar was beaten, hung from a hook, forced to stand naked in the cold until she fell unconscious, and placed in solitary confinement and a psychiatric ward with dangerous co-detainees. She was released in 2008 and has been living in exile in Paris since 2009.
In 2012, she filed a complaint before the Human Rights Committee. The complaint outlined the ways in which she had been the victim of a campaign of severe harassment, abuse and torture at the hands of the Uzbek authorities from 2002 until 2009. It described the particularly pernicious forms of torture Mutabar experienced in detention. Abuses that were designed specifically on the basis of her gender, as a woman. She was gang raped by police on one occasion, and was forced to engage in an involuntary sterilization: her uterus was removed without her consent. Since this forced procedure, Mutabar has asked for her medical records, and has not received them.
In its recent decision, earlier this month, the Committee indicated that Uzbekistan had failed to investigate the serious allegations of torture that Mutabar has raised. It called upon Uzbek authorities to engage in a prompt investigation leading to criminal proceedings against those responsible. In addition, the Committee said that Uzbek authorities should provide Ms Tadjibayeva with appropriate compensation, publish the its findings, translate them, and widely disseminate them. Uzbekistan has 180 days to inform the Committee about any measures taken.
The likelihood that it will do anything is slim. The Uzbek government has a well-documented record of serious human rights violations, including systematic torture and ill-treatment of human rights defenders and political prisoners. There have also been reports by rights organizations of a government campaign to forcibly sterilize women in Uzbekistan.
Tadjibayeva has repeatedly sought an investigation from Uzbek authorities into the serious human rights violations that she suffered since 2002 but her claims have never been properly investigated and no-one has ever been prosecuted for them. Mutabar wants an effective investigation, and for those found responsible to be punished. She wants reparation, including compensation, as well as her full medical records about the surgery that left her infertile. However, international human rights treaty bodies do not have the power to enforce any such thing.
Uzbekistan may simply choose to ignore the decision of the U.N. Human Rights Committee. This kind of lack of accountability is common and should be more widely known.
In 2003, the U.N. Human Rights Committee found that that a British man had been tortured in the Philippines, and advised the Philippines government to afford him with an appropriate remedy. To date, the government has failed to implement the Committee’s decision. In November 2014, the Philippine Commission on Human Rights and the Department of Foreign Affairs committed to following-up on the case with relevant government agencies – but it is unclear whether it actually will, or has done anything over the past eleven months. It is noticeable that even this weak commitment to start conversations within the relevant government agencies came eleven years after the U.N. Human Rights Committee’s decision, and only after the insistance of human rights NGOs such as REDRESS that tirelessly work so that those who have had serious injustice inflicted upon them can seek reparation. When positive decisions come, which are not only legally just but morally important, they work for the human rights decisions to be implemented in practice.
— PK (@PxKxB) October 18, 2015
By way of comparison, when the European Union decided to exclude hormone induced beef – found to potentially increase instances of cancer – the U.S. (one of the largest producers of this meat) complained to the World Trade Organization. The Dispute Settlements Body of the WTO found that the EU ban on U.S. beef was an unfair barrier to trade, asked for the offending ban to be lifted, and imposed a fine – which the European Union was obliged to pay immediately. The risks to health came second to the loss of profits for the U.S. meat and dairy industry, and the U.S. could rely on the WTO’s effective dispute settlements mechanism to enforce a quick remedy.
Similarly, when the Australian government sought to address one of the leading causes of preventable death and disease in the country – smoking – and require companies to issue cigarettes with plain labels that described the risks to health, Philip Morris (a global cigarette and tobacco company) complained that this would impact its business operations and profits. This is the first investor-state dispute that has been brought against Australia. The dispute started on June 27, 2011, and since then both sides have spent significant amounts on legal and arbitration fees. The issue has not been settled. But, both sides are making their arguments and a binding arbitration decision will eventually be enforced. When company profits are threatened, trade related dispute settlements can and do make enforceable decisions.
Environmental and health regulations have consistently been criticized by trade dispute settlement mechanisms as negatively impacting corporate profits. The primacy of trade over the rights to health, a clean environment, and other human rights is designed into our international legal framework. States create soft human rights mechanisms – where just and important findings can be made on horrific acts, but where the human rights mechanisms have no power to enforce their decisions, or require specific steps to repair serious and morally reprehensible damage.
At the same time, governments willingly subscribe to international trade agreements which limit the power of state entities to protect us from corporate greed. This bias in favor of international trade law over human rights will expand if the Transatlantic Trade and Investment Partnership (TTIP), Trans-Pacific Partnership, and Trade in Services Agreement trade agreements come into force. Victims of grave human rights will not have access to effective tribunals, while companies can cry to investor-state dispute mechanisms where they feel their profits are threatened by health and environmental regulations. While human rights frameworks remain under-resourced, disempowered, and flailing, trade related agreements that threaten our democracies are being negotiated in secret. This context threatens to make the work of human rights lawyers that much more difficult.