I'm glad Yevgeny Zhovtis was freed early from his four-year jail sentence for involuntary vehicular manslaughter. It was an unjust case from start to finish, and I hope he will be able to resume his important human rights work after recuperating and getting his bearings. He returns from his isolation in a prison colony 1,000 miles from his home to a country that is worse off, human-rights wise.
Ironically, it was Zhovtis himself who recommended that the West give its blessing to the notion of having Kazakhstan as the chair of the Organization of Security and Cooperation in Europe (OSCE); he thought it might put his country into the glare of international scrutiny and bring about human rights reform.
It didn't. Things got worse, with the passage of a worse press law, the jailing of a journalist, harassment of independent media and NGOs, and in the end, a highly compromised NGO parallel conference at the official summit (limited in its numbers and forced to accept Kazakh officials and GONGOs on the speakers' list) -- which produced nothing, and ended in a stand-off.
Since then -- one could argue that Astana's sense of impunity with the chair set the stage -- the human rights situation has dramatically deteriorated, with the shooting of at least 14 striking workers by official admission (and credible reports of possibly as many as 64), and the jailing of journalists and opposition members. I think we're going to see this situation get worse before it gets better and it opens up the question of the extent to which human rights groups can function there -- including Zhovtis and the Kazakhstan Human Rights Bureau he has headed for years. They've weathered many a storm; they will survive. But it will be tough. How can the international community help?
That brings me to the issue of the Soros Foundation-Kazakhstan of which Zhovtis was former chair from 1999-2002, and was also a board member of OSI’s Central Eurasia Project. The Kazakhstan Open Society Foundation is now looking for an executive chair, as sadly, the former chair, Anna Alexandra, passed away from cancer at an early age.
INITIAL CAUTIOUS OSF RESPONSE TO ZHOVTIS CASE
At the time Zhovtis was arrested, for various reasons, from what I gather, both the local office and the international overseers in New York decided not to have an OSF presence at the trial. Apparently, there was concern that if the "Soros" brand was too visible and close to this trial, it would actually make things go worse for Zhovtis. At home and abroad, the Soros name is inevitably tied to conspiracy theories by conservatives -- likely the tactic was to keep this kind of thing away from the case.
I couldn't have disagreed more. I thought that in his hour of need, the people who had in part put Zhovtis at risk with this regime by having him on their board should stand visibly by his side, with the highest level they could muster in their operation. There was always the tension of the local office versus international norms -- these local Soros foundations are often forced into compromises with the powers-that-be merely to preserve their presence. In Russia, this discrepancy between local pressures and international expectations eventually led to the closure of the office, as it appears to be doing in Azerbaijan. Soros has tended to pull back in recent years due to a tidal wave of backlash about his alleged involvement in financing "colour revolutions" -- by what's to be ashamed of, really? I'm for challenging this strategy.
While there wasn't a campaign in Kazakhstan, OSF did put out a statement on Zhovtis in New York. It was masterfully drafted, likely with legal as well as political advisory staff, and stayed away from declaring Zhovtis as innocent, or pronouncing his case as trumped-up to silence him on the eve of the Kazakh chairmanship of OSCE, and didn't demand his release.
Thirty years of New York human rights movement saddle-bag balancing and 50 years of European diplomacy went into this remarkable statement:
It is in the spirit of the values and standards to which Zhovtis is devoted, that we wish to convey our hope that Zhovtis will enjoy full rights in accordance with the law of Kazakhstan and international conventions to which Kazakhstan is party. His position as a leading rights defender does not entitle him to have any fault on his part overlooked. Nor should it result in any attribution of fault or harsher treatment than is warranted by the evidence.
Thanks, guys! One wishes, oh, the state of Israel enjoyed such kid-glove treatment from the Soros-funded Ken Roth and Human Rights Watch.
I think that sort of equivocating shouldn't have been in the statement, because the task at hand was human solidarity, not legalities. International human rights doesn't cover everything; and OSF should never have implied that you can get a fair trial in Kazakhstan with its wimpy "hope" for one. There's a fiction we all engage in when we call on these states to abide by their international obligations, but when it comes down to your very colleague on your very organization's board going to jail for a long time, the fiction shouldn't be indulged. The CEP leadership should have attended his trial, made multiple vigorous statements, and put out something less limp than this signed by the Brussels office. They didn't.
The Brussels statement opened with the same curiously elaborate apology to the victim of the accident, which may have been dictated by either the government of Kazakhstan itself, or Kazakhstan foundation leaders who felt this was the best approach to take. Yet it's just plain odd to begin first with condolences to a pedestrian who completely accidently was killed when struck by the car Zhovtis was driving, and then as an afterthought, add condolences to Zhovtis. In a normal country under the rule of law, if you were not DWI and you were not at fault, striking dead a pedestrian would not lead to a jail sentence. That it did in Kazakhstan (and doesn't for everyone as we know) was a function of the regime's desire to pounce on this fortuitous situation to muzzle Zhovtis.
This very strange and stilted statement was possibly designed at someone's advice to "make things go better for Zhovtis" and possibly just a desire by lawyers to limit liability for litigation or association with a situation that would cost their entire presence in Kazakhstan.
EURASIANET COVER AGE OF ZHOVTIS CASE
At the time, I thought it was odd and said so, but having nothing at all to do with OSI and OSI executive politics, and only writing as a freelance contractor for EurasiaNet, I had no input. Fortunately, Joanna Lillis, the Almaty correspondent for EurasiaNet, wrote two full and frank articles about the case -- but those were news stories, not defense statements. She continued to follow up.
When Zhovtis then filed his appeal, I asked if I could do another article on Zhovtis, and found that in fact there was some relief that someone would do this as OSI had been handed his entire case file. I wrote that while he had expressed remorse, he continued to maintain that he was neither negligible or culpable.
ANOTHER OSF CAUTIOUS STATEMENT
OSF's Brussels office then came out with a statement in October 2009, but once again, caution was the watchword and there was no declaration that he should be released because the punishment was unjust; the call for his release was tempered by first an idealistic a call for reform of the justice system (unlikely) and then a call for a new investigation. Procedural violations were noted; but it was not a full-throated defense.
The expression of remorse -- something that Zhovtis has repeated again and again and was a prominent feature of his statement upon release -- seems to be both a requirement of the culture and a requirement of the justice system. I just can't think of someone in the US in a similar situation, where they truly were not at fault and it was an accident, feeling that they would have to make as major an act of abject apology or repeated acts. Yet I understand this is the exigency of the situation in Kazakhstan. That makes it all the more important for others to step up and stress that he was "neither negligible or culpable".
OSF's first statement most definitely did not do that. But then they evolved over time to the position that the OSI Justice Initiative -- the arm of OSF that deals with international justice programs -- has today.
THEN OSI CALLS FOR ZHOVTIS' RELEASE
First, a year after Zhovtis' sentence, now OSI could call openly for his release.
It's too bad they didn't do that before the trial -- when they had the same set of facts and same obvious bad faith visible from the gtovernment -- when it might have made a difference, or at and/or right after his trial. But a year later, they did, finally. It's not clear from the outside how the position evolved, but I imagine that other human rights groups like Human Rights Watch who worked directly with Zhovtis felt that it had to be done, and OSI, which as a policy arm of OSF often joins in human rights appeals nowadays, joined a group of organizations for this appeal.
OSI JUSTICE INITIATIVE COMPLAINT
In November 2010, the OSI Justice Initiative filed a complaint about Zhovtis' case to the UN Human Rights Committee. Now, speaking in an international legal voice more full-throatedly, OSI JI said this:
The sentence imposed was arbitrary in that it was for the improper purpose of silencing a human rights defender, and was imposed after a trial that amounted to a denial of justice, in violation of Article 9 (arbitrary detention). The conditions of detention are degrading and the prison rules have been applied in a discriminatory way, violating Article 10 (degrading treatment).
This could have been said even before the trial; it could have been said immediately after the trial at the highest level -- the facts were known then as now. Sure, an HRC complaint is one of those things that is "nice to have," but its a prolonged, creaky, obscure process that takes forever to complete and even if it yields in a useful judgement call from this UN body, rarely, in the post-Soviet countries, leads to any kind of pressure on the government in question to do anything. (There are HRC rulings like this on Belarus, Russia/Chechnya, Uzbekistan that are all "nice to have" but they all "go nowhere".)
This kind of activity -- human rights busy work -- is the sort of thing that human rights groups do, especially when nobody at the top seems to muster the spirit of solidarity needed to go to Astana, and say that unless the board member is released, they are closing the office and Kazakhstan will look bad because it "has not been made safe for a Soros office" (like democracy). Naturally, this sort of hardball approach never occurred to any Soros executives because that's not how they roll.
US GOVERNMENT INTERVENES ON ZHOVTIS CASE
Meanwhile, the US government was raising Zhovtis' case quietly (at the behest of both HRW and OSI and other groups). As we know from a cable dated February 26, 2010 released by WikiLeaks, as I wrote, Holbrooke took up Zhovtis' case directly with Saudabayev, the Kazakh Foreign Minister. One gets quite a breath-taking glimpse into the cynicism of International Relations in this transaction, as the cable writer says:
Holbrooke told Saudabayev that the imprisonment of human rights activist Yevgeniy Zhovtis is one of the pressing issues affecting Kazakhstan's bilateral relationship with the United States. He told Saudabayev that Zhovtis has become a symbol for the opposition in Kazakhstan, "a fact that he certainly understands and exploits." Holbrooke said that if Zhovtis could be released by presidential pardon, that would reduce his symbolic value, since "he is worth less to the opposition out of jail than in jail."
Holbrooke deployed a cunning "you and I both know" approach with this venal Kazakh FM -- it's regrettable, certainly, that he had to portray Zhovtis, a decent man, as somehow manipulative and exploitative of his own victim status. It reveals a total lack of understanding of the differences between the opposition and the human rights movement -- but whatever.
As you can read, Saudabayev disgustingly proceeds in tremendous bad faith to compare Zhovtis to Roman Polanski (!), and disingenuously invokes "the rule of law" -- which of course, has nothing to do with this case.
OSCE PARLIAMENTARY SILENCED BY KAZAKH CHAIR
The history of the West's intervention on Zhovtis is a mirror for all the problems with relations with the stans, of course -- of which the Kazakh chair itself was emblematic (I called it "magical thinking"). As I reported at the time, when the OSCE Parliamentary Assembly visited Zhovtis and wanted to publish a report of their visit on the OSCE website, the Kazakh chair-in-office ordered them not to do it. They ended up circulating it in PDF form and it did not go on the main site osce.org as such trip reports often do.
I suggested that US and other officials should just keep raising his case very visibly -- this is what worked in the Soviet era. Unfortunately, Zhovtis' case -- like that of many other people and countries -- at a US-Kazakh summit got mangled in the moral-equivalence game of the Obama human rights policy, where the strategy was always to describe ourselves as a "work in progress" and then expect the same candour from our interlocutors. It never came. But then, we needed Astana for the Northern Distribution Network to ferry goods to NATO troops. Kazakhstan is a vital route.
OSI JUSTICE CALLS TRIAL 'POLITICALLY-MOTIVATED' AND 'UNFAIR'
Today, OSI Justice Intitiative released a statement welcoming Zhovtis' release, and calling for his sentence to be repealed: "Kazakhstan must now acknowledge that his imprisonment was the result of a politically-motivated unfair trial and arbitrary excessive sentencing." It's the strongest statement yet, but I had to take the occasion to ask OSI JI on Twitter why they didn't monitor Zhovtis' trial at the outset (and make statements like this back then, and make more forthright statements for a year).
Answer: "Given resources, JI doesn't monitor national trials, only intl tribunals, where we litigate too. But OSF is major HRW funder."
My reply: "I think that given that Zhovtis was your KZ foundation board member, you should have sent a rep to his trial. HRW is different."
Whereupon I got the usual closed-society answer: "Happy to discuss in more detail if you would like to email [email protected]"
DEPLOYING THE SOROS 'BRAND'
OSI JI and OSI CEP are, of course, different branches of the vast empire that is the Open Society Foundations. And they do different things with different mandates.
Even so, the Soros "brand," if you will, was deployed selectively and cautiously and ultimately bureaucratically in this case for various exigencies. Some might think it's pointless to dredge up the past of years ago, especially now that Zhovtis is free. OSF is a huge institution; it won't change.
But I think sometimes even institutions in the conscience business (or maybe especially institutions in the conscience business?) can make missteps and falter and pull their punches and prove reticent at the test -- and it's good to call them out on that.
Why now? Because this is a crucial time for Kazakhstan. It is making a decided turn for the worse, and the fragile civil society there is more in danger than ever. Due to the accidental tragedy of the loss of the director from cancer, OSF is now looking for a new person.
And they do have a choice as to whether they get a very strong and forceful executive who will push back against the Kazakh government's authoritarianism, or someone who is a meek and mild caretaker who just tries to hold the organization together to do "vegetarian" programs that don't challenge anything fundamentally. Frankly, that was the status quo of recent years even during the OSCE chairmanship when there was a certain "immunity" available to do more. The tendency of all the foundations in the region has been to pick a bouquet of topics that advance the "progressive" agenda while not really challenging the regimes.
Is it worth mainly producing programs and statements on issues like theater for the deaf and open municipal budgets and suicide among youth so that you can also indicate you are "troubled" by the bad new broadcasting law? This is the question someone should be asking. This is of course the debate about democracy promotion versus economic and social development held everywhere -- and in Astana it has clearly been resolved in favour of the latter emphasis.
"Transparency, Accountability, Justice" are the slogans of Soros-Kazakhstan. When journalists and opposition leaders who covered the shootings in Zhanaozen and cared about striking workers there are put in jail, can you have those things? Can you have them by working on pain alleviation and autism instead? I think many people in the loop have stopped asking this question, but not me. The reality is that the government of Kazakhstan might decide it for all of us, and only negatively.