In our "Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
In Israil v. Kazakhstan, the UN Human Rights Committee clearly affirmed that the prohibition on the return of asylum-seekers to torture and the prospect of the death penalty is not subject to balancing based on alleged threats to national security.
In July 2009, Arshidin Israil, a Chinese national of Uighur origin, provided information to Radio Free Asia in the United States regarding the Urumqi riots, where a number of Uighurs had been killed by Chinese police during a demonstration. Human Rights Watch recently described the riots as “the most deadly episode of ethnic unrest in recent Chinese history." Fearing persecution because of his cooperation with foreign media, Israil left China in September 2009. He crossed into Kazakhstan and applied for asylum with the United Nations High Commissioner for Refugees, which granted him refugee status in March 2010.
Rather than permitting Israil to travel to a European country which had agreed to grant him residence, the Kazakh authorities placed him under house arrest in April 2010. Two months later, he was arrested following an extradition request from Chinese authorities on charges of having participated in terrorist activities and for having endangered public safety. At least one of the charges against Israil was punishable by the death penalty. The Kazakh government passed a new asylum law under which the UNHCR handed their powers on the determination of migrant status to the Kazakh authorities, who proceeded to cancel Israil’s refugee status.
In January 2011, while detained in an Isolation Detention Centre awaiting extradition, Israil requested that the Kazakh General Prosecutor release him from detention. (The relevant criminal legislation only authorized detention pending extradition for a period of three months.) In the absence of a reply, Israil submitted a complaint to the UN Human Rights Committee, arguing that if Kazakhstan proceeded with his extradition to China, he would be at risk of being subjected to torture and could be sentenced to death in China.
Kazakhstan carried out Israil’s extradition in May 2011, despite the Human Rights Committee’s requests for interim measures of protection (specifically that Kazakhstan should not proceed with Israil’s extradition to China).
In views adopted at its 103rd session in October 2011, the Human Rights Committee held that Israil’s lengthy detention pending extradition violated Article 9 of the International Covenant on Civil and Political Rights (the right to liberty and security), given that Kazakh law only permitted deprivation of liberty prior to extradition for three months. The committee also decided that the extradition itself violated Article 6 (the right to life) and Article 7 (the prohibition on torture) because there was a real risk of torture and the death penalty based on what Kazakhstan knew or should have known. The committee observed that:
… there were widely noted and credible public reports that China resorted to use of torture against detainees and that the risk of such treatment was usually high in the case of detainees belonging to national minorities, including Uighurs, held for political and security reasons. In the Committee’s view, these elements in their combination show that the author faced a real risk of torture in China if extradited.
Despite China’s assurance that Israil would not be sentenced to death in its request for extradition from Kazakhstan, the committee considered that the risk of the death sentence was not removed.
The committee also condemned Kazakhstan for “flouting” its interim measures of protection, asserting that the extradition of Israil “undermines the protection of Covenant rights through the Optional Protocol.”
The committee’s decision in Israil v Kazakhstan, the first decision of a UN treaty body against Kazakhstan, is to be commended for upholding the non-refoulement obligation (that no person should be forced to return to a country where he is likely to face torture and possibly death). Although the committee does not say so explicitly, it is clear that the non-refoulement obligation trumps bilateral extradition agreements under the Shanghai Cooperation Organization, which are widely used in Kazakhstan for extraditions to China. Regrettably, Kazakhstan’s cavalier approach to extradition continued unabated in 2011. In June, Kazakh authorities extradited at least 28 men to Uzbekistan on anti-state and religion-related charges, despite interim measures directing the suspension of extraditions by the UN Committee against Torture. It is hoped that the Human Rights Committee’s decision will stem the tide of inappropriate and rights-infringing extraditions in Kazakhstan going forward.
A summary of Israil v. Kazakhstan and other cases from the 103rd session of the United Nations Human Rights Committee is provided by the Open Society Justice Initiative, in order to bring the decisions of global human rights tribunals to the widest possible audience.