Last week, protests broke out in Uzbekistan’s autonomous region of Karakalpakstan. The unrest left at least 28 dead and over 240 injured. While international observers have called for an independent investigation, past practice makes it unlikely that Uzbekistan’s government will launch a genuine probe. And recent decisions from the United Nations (U.N.) Human Rights Committee suggest that survivors and victims may face an uphill battle to have their grievances heard there, too.
Seventeen years ago, Uzbekistan’s armed forces shot and killed hundreds of largely unarmed protesters as they fled a demonstration in the city of Andijan. The May 13, 2005, massacre was one of the worst incidents of mass state violence in the past quarter-century in Eurasia. The dead were tallied at 300 to 500 by the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe, although it was not able to conduct a proper investigation, and the real figure may have been much higher, according to eyewitness accounts.
Yet authorities in Uzbekistan have never carried out a meaningful investigation into the Andijan massacre, despite extensive documentation of the killings and numerous calls for justice. To the contrary, in the aftermath of the events, they denied human rights investigators access to the city, prevented journalists from reporting on the incident, and destroyed evidence. Survivors were detained, prosecuted, and tortured. Witnesses and relatives of those who fled were intimidated. To this day, no one has been held accountable for the killings.
Until recently, the U.N. Human Rights Committee – the body of independent experts charged to monitor implementation of the International Covenant on Civil and Political Rights (ICCPR) – provided the only hope for legal recourse available to victims of the Andijan massacre. It was before the Committee that against great odds, a survivor known as H. R., who was among the protesters who were fired on with live bullets by Uzbek soldiers, summoned the fortitude to file a complaint in May 2014. The day of the massacre, two men he had been holding hands with were killed on the spot. Fleeing for his life, he managed to reach the Kyrgyzstan border, approximately 12 kilometers away, on foot, in a harrowing, overnight journey with other survivors. His individual complaint is the only one to have ever been considered by a U.N. committee on behalf of any of the hundreds of victims.
And yet, earlier this year, the Committee published its Views dismissing the complaint out of hand. With poor reasoning, and over a principled dissent by two of its members, the Committee majority declined to address the merits of what happened and who was responsible. Instead, it relied on a formalistic and confusing interpretation of its rules to dismiss the complaint for having missed a discretionary deadline that the Committee itself introduced in 2012 (and which the Committee has the power to waive). In short, the Committee chose to overlook the reality of monumental injustice in favor of an unnecessarily narrow reading of its own procedures.
This was not an anomaly. In recent years, the Committee has dismissed several complaints for technical reasons and enforced time limits with increasing rigor.
For example, in March of last year, O.D. v. Russian Federation (CCPR/C/131/D/2578/2015), the Committee declined to review the merits of a claim brought by a man who was convicted, in the absence of defense counsel, of “participation in an organized criminal group and … a number of other crimes” and sentenced to life imprisonment. The Committee rested its dismissal on the grounds that the complaint was submitted nine months after the five-year deadline following the rejection of his domestic appeal, even though the complainant had subsequently pursued other unsuccessful domestic petitions for review at the Constitutional Court.
In A.P. v. Kazakhstan (CCPR/C/133/D/2726/2016), decided this past October, the Committee refused to consider the merits of a complaint by the mother of a man, A.P., who suffered injuries while in the custody of security forces and died in suspicious circumstances in a psychiatric ward. The authorities denied the mother’s request for her son’s medical history, as well as the results of the autopsy. Undeterred, she requested, and was granted, a court order for an exhumation in July 2009, but her son’s body was not exhumed until January 2013, by which point the cause of death could not be determined due to the time elapsed since his death. Notwithstanding the gravity of harm A.P. suffered, the persistence of his mother in seeking an investigation, and the complete failure of the authorities to investigate the circumstances of death or provide redress, the Committee found the communication, filed in January 2015, inadmissible because, in its view, the alleged violations of the Covenant occurred prior to the date of its entry into force for Kazakhstan.
Kazakhstan ratified the Optional Protocol in 2009, after A.P.’s death but four years before his body was finally exhumed, and during his mother’s continuing and unsuccessful efforts to obtain redress. As three dissenting members of the Committed observed, the Committee’s inadmissibility decision ignored relevant facts – including that the authorities had a continuous obligation to investigate the alleged ill-treatment and death of A.P. In breach of this obligation, the authorities stalled the decision to investigate for over five years, with the delay in exhuming the victim’s body obscuring potential evidence. As such, the authorities’ failure to investigate continued past the entry into force of the Covenant and was at odds with the Committee’s own prior jurisprudence. The dissents noted that the decision risked “diminishing the obligations of States to investigate ill-treatment and death, especially for persons in situations of vulnerability, such as persons with disabilities.”
The End of an Accessible Era at the Human Rights Committee?
The crabbed spirit which animates the Committee’s Views in these recent decisions marks a sharp departure from an earlier age. In the 1990s, one of the authors of this article was told in jest during a training session by a Committee member that it would consider complaints even if they were written “on the side of a newspaper.” Among litigators and advocates, the U.N. complaints system has historically stood out as one of the most accessible: complainants do not need to be represented by a lawyer, and an exclusively written procedure demands no costly travel. In addition, neither the International Covenant on Civil and Political Rights, of which the Human Rights Committee is a treaty body, nor its Optional Protocol that regulates the complaint procedure, imposes a time limit on the submission of complaints. Nonetheless, in 2012, the Committee introduced a requirement that complaints must be submitted within five years of exhaustion of domestic remedies.
When applied judiciously, time limits ensure the finality of well-settled domestic judgments and guard against endless, meritless re-litigation of decided claims. But the Committee has the power to waive the time limits when warranted, and, if ever there were a proper case for the exercise of discretion, H.R.’s would be it. Here, there was no effective domestic remedy, the alleged rights violations were severe, and H.R. had well-founded reasons for having waited to file until he did, including suffering from post-traumatic stress, resettling as a refugee, and lack of psycho-social support. In addition, for years, H.R. was unaware that any possibility for international redress existed.
Nonetheless, even though the Uzbek government had not challenged admissibility on temporal grounds, the Committee, on its own initiative, ruled that “[H.R.] does not provide sufficient information in his submissions to suggest that he demonstrated due and timely diligence and initiative to claim the protection of his rights before the domestic authorities or the Committee.” The decision also reads:
He submitted his first communication to the Committee with a notable delay of eight years since his alleged arbitrary detention and torture and seven years after the Andijan events. The Committee notes that [H.R.] resettled in the Netherlands in November 2005, that his wife and children joined him in August 2007 and that, according to the case file, his mother-in-law remained in Uzbekistan in April 2010. The Committee notes however that the author does not offer any explanations as to the fear of his or his family’s prosecution in the following years. The Committee is of the view that the author, who resettled in the Netherlands and obtained there a refugee status, was no longer threatened with persecution and was in a sufficiently secure position to bring a complaint before the State party’s judicial authorities, or before this Committee, on his own or with the assistance of a legal representative.
But the Committee’s assumption that once outside their country of origin, victims are safe from government harassment and able to file claims ignores the increasingly common and serious practices of transnational repression, whereby governments continue harassing victims across international borders. In this case, the Uzbek government targeted H.R. with a smear campaign after he filed his communication—proof that concerns that filing a complaint could adversely impact his and his family’s security were warranted. Notwithstanding, the Committee declined to hear H.R.’s claims, instead chastising him for the delay in submitting a complaint.
As the two dissenting Committee members observed:
[F]rom the moment he fled Uzbekistan until his application before the Committee, the author did not remain inactive. On the contrary, he did his best to ask for help to present his claims at the international level and ‘the time taken to prepare this communication is largely due to the actions of the State party, and more precisely, due to the trauma he experienced, which his representatives did not wish to exacerbate through rushing the preparation of the communication, due to persecution of the author’s co-representative [Mutabar Tadjibayeva] in this communication and due to harassment of those [of the victim’s relatives who] remained in Uzbekistan.’ (quoting earlier portions of the Committee Views summarizing the applicant’s position).
The dissenting opinion also noted that in direct contrast to its reasoning in H.R.’s case, the same Committee confirmed the applicant’s account of the absence of domestic remedies when Uzbekistan underwent the state report examination by the Committee in 2020. In its May 2020 Concluding Observations in response to the government of Uzbekistan’s report on the implementation of the International Covenant on Civil and Political Rights, the Committee:
[R]eiterate[d] its previous concern about the lack of a full, independent and effective investigation into the mass killings and injuries by military and security services during the Andijan events in May 2005 and regret[ed] the State party’s assertion that these events do not require any international investigation and that this matter is considered closed.
The Committee went on to urge Uzbekistan to:
carry out an independent, impartial, thorough and effective investigation to ensure a full, transparent and credible account of the circumstances surrounding the Andijan events in 2005, with a view to identifying, prosecuting and punishing perpetrators and providing remedies for victims.
It would appear impossible to reconcile the Committee’s expressed criticism about widespread impunity in Uzbekistan (including specifically for the Andijan events), and the absence of justice for victims, as well as “the fact,” noted by the two dissenting members, “that at least until 2010, the author had family members living in Uzbekistan, and therefore had valid reasons to fear for their security,” with its finding that H.R. “was in a sufficiently secured position to bring a complaint before the State party’s judicial authorities […]” (para. 6.5). Moreover, the call for impartial investigations aimed at ensuring remedies for victims and prosecution of perpetrators rings hollow when paired with the Committee’s own decision to close the door on victims.
The Consequences of the Committee’s Decision – for H.R. and Other Survivors
As H.R.’s counsel, it is no surprise that we disagree with the Committee’s decision not to consider the merits of this case. And yet, now that the Committee has taken seven years to consider the admissibility of H.R.’s complaint – without communicating any reason for this delay – only to discard it, it is too late for any other survivor to file a new claim. As a result, there will be no justice for H.R., other survivors, or family members of the hundreds who died at the hands of Uzbek soldiers. For some parts of the world – including Central Asia, where there are no regional human rights courts – U.N. committees have long been the only available international legal avenues for redress. These avenues appear now less accessible.
The Human Rights Committee, other U.N. treaty bodies, and the over-stretched secretariat that serves them struggle with insufficient resources and excessive caseloads. Notwithstanding these challenges, they often manage to render justice. But despite their noble intentions and hard work, these bodies fail to fulfill their mandates if they refuse to hear well-founded, well-documented complaints of grave abuses brought by applicants who overcome huge obstacles to present their arguments.
The Committee’s decision in the Andijan massacre case – issued in March 2021 but published, with an unexplained delay, only in February 2022 – is a callous abdication of institutional responsibility that is far from being exceptional. It should raise alarm among rights advocates worldwide. The ruling has let the Uzbek government close the books on the massacre, missed an opportunity to shed light on the fate of dozens of other Andijan victims in Uzbek prisons, and failed to hold Uzbekistan’s government accountable. The decision likewise sets a disturbing precedent as Uzbekistan once again faces a choice between allowing open and independent investigations or covering up potential abuses in the wake of the July 4 clashes in Karakalpakstan.
Finally, the Committee’s decision shows a disregard for the psychological ordeal endured by our client in preparing his complaint. H.R. suffered post-traumatic stress and suicidal thoughts and reported feeling “haunted” by survivor’s guilt, knowing that many of his friends had been killed or imprisoned and tortured. The Committee’s dismissal of his complaint without considering its merits will only discourage other survivors from mustering the courage to seek justice. As the world turns a new eye to the fragile architecture of international justice and human rights protection, we must demand better.