Steve Swerdlow, Uzbekistan researcher

In early 2012, as part of its overall rule of law programming in Central Asia, the EU launched a programme to ‘reform the criminal justice system’ in Uzbekistan. According to diplomats who spoke with Human Rights Watch, the programme is being implemented primarily by a leading German legal institute. It will send up to eight legal experts from Germany, the United Kingdom and France to consult with Uzbekistan’s Justice and Interior Ministries, Supreme Court and General Prosecutor’s Office. The programme is expected to run for three years and will cost an estimated €10 million – a substantial investment on the part of EU taxpayers.

Uzbekistan’s atrocious rights record is well known. It has a legal system notorious for systematic torture, lack of an independent judiciary, and, more recently, ‘reforms’ that abolished the formerly independent bar association and disbarred leading independent criminal defence lawyers. Without doubt, Uzbekistan’s most pressing rule of law challenges are rooted in hard-core human rights abuses. Any attempt by the EU to support the establishment of the rule of law there will require tackling those core abuses head on.

However, before this can be done, Brussels should acknowledge that its policy of muting public criticism over Uzbekistan’s worsening rights record has failed the rule of law at a time when victims of abuse have more than ever needed the EU to speak up and speak out.

Unfortunately for the ordinary people of Uzbekistan, the EU has abandoned the firm stance it adopted in the aftermath of the massacre by government forces of hundreds of largely peaceful civilians in the eastern Uzbek city of Andijan in May 2005. Faced with an intransigent president, Islam Karimov, who flatly rejected calls to conduct an independent investigation into the Andijan massacre or improve the rights situation, the EU backed away from its demands for rights improvements rather than attach meaningful policy consequences. Instead of making the fulfilment of human rights benchmarks a condition for deeper economic, political and military ties, the EU, like the U.S., fully embraced policies of ‘quiet diplomacy’ and ‘constructive engagement’ with a Tashkent that is increasingly uninterested even in the pretence of improving the human rights situation.

This policy shift took several years to emerge. But the West’s increasingly soft approach on Uzbekistan became even more pronounced in 2011, when it contrasted starkly with the stance of EU officials during the Arab Spring on the need to support the freedom of peoples who had struggled under repressive and long-serving authoritarian rulers. At that moment, Andijan’s Bobur square and Cairo’s Tahrir square could not have seemed further apart.

Advocates of ‘constructive engagement’ have argued that public criticism is ineffective, since it only serves to alienate the target government. But an objective look at Uzbekistan’s record demonstrates that wide-ranging abuses such as the crackdown on independent civil society have only worsened during the last several years. Indeed, constructive engagement has looked more like a policy of ‘engagement without strings’. Sadly, the result of abandoning pressure has been to leave Uzbekistan’s beleaguered human rights community and ordinary victims of abuses even further isolated.

More than three years since sanctions were dropped in late 2009, the EU-Tashkent rapprochement has failed to produce meaningful improvements in the rule of law. Apart from a rhetorical commitment to promote rights as part of the relationship, the policy has essentially boiled down to the so-called human rights dialogues that the EU pursues with each Central Asian government. But these are closed talks that have produced no public announcement of any commitment to make improvements by the Uzbek government, and they appear to have no bearing on the overall relationship.

Furthermore, the dialogues have often been used by Uzbek officials to avoid rights concerns raised in other, more significant settings. This weakens the EU’s human rights policy rather than strengthens it. Significantly, after three years, Uzbekistan’s rights defenders report that the EU-Uzbekistan human rights dialogues have done nothing to improve conditions for them on the ground. And they report that the lack of any public commitments leaves them with no sense of the specific improvements the EU is pressing Tashkent to make. In the long term, the Uzbek government’s continued disrespect for the rule of law could be a major source of instability when a leadership transition inevitably comes.

Given this sobering state of affairs, EU donors should recognise that rule of law programmes do not exist in a vacuum apart from overall human rights policy. Programmes cannot be effective without a more proactive, principled policy that emphasises the centrality of human rights in the overall relationship, beginning with High Representative Catherine Ashton down to the head of delegation in Tashkent.

In June 2012, EU foreign ministers made a powerful pledge to prioritise human rights in EU policy at home and abroad when they adopted a comprehensive human rights package. It consists of a ‘strategic framework’ on human rights and democracy, an EU action plan and a decision to appoint an EU Special Representative on human rights. The document commits the EU to promote human rights, democracy and rule of law ‘in all areas of the EU's external actions without exception’ and says the EU will ‘place human rights at the centre of its relations with all third countries’.

Upon adoption of the package, Catherine Ashton stated, ‘Human rights are one of my top priorities and a silver thread that runs through everything that we do in external relations’. This commitment to prioritising human rights means the EU should take a principled, public position on Uzbekistan’s abysmal rights record, and make good on the promise to throw its ‘full weight behind advocates of liberty, democracy, and human rights’.

In 2013, the EU should overcome its hesitation to establish clear benchmarks on human rights and set out the specific reforms it wants to see from Tashkent. In the case of Uzbekistan, the EU does not have to look far. EU foreign ministers earlier established clear benchmarks in the context of the sanctions process, most recently in October 2010, which included immediately releasing dozens of imprisoned rights activists. But those calls for basic reform were never fulfilled. This year, the EU should set a clear timeline for Tashkent to heed these key demands once and for all, or face concrete consequences, including targeted restrictive measures. The EU can only successfully improve the rule of law on the ground by implementing a policy that is prepared to impose meaningful policy consequences when they are warranted.

With respect to the rule of law programmes themselves, the challenges of implementation are numerous. Over the last ten years, Tashkent has become increasingly adept at undermining the central objectives of programmes they perceive to be subversive. It has done this through a variety of means, including bureaucratic obstacles, the forced closure of authentic rights groups and the promotion of government-organised non-governmental organisations, better known by their acronym, GONGOs.

Given this reality, it is crucial for EU donors to set clear ground rules for such programmes and not waiver from them, including on the issue of those to be included in Uzbekistan. So, for example, a programme that is aimed at promoting ‘dialogue’ between officials and civil society, but which does not include Uzbekistan’s most active rights activists, runs the risk of being irrelevant, or worse, a vehicle for propping up the status quo. Similarly, a rule of law programme that provides for the monitoring of criminal trials or hearings and does not guarantee attendance by independent Uzbek lawyers or Western observers will fail to make a dent in a justice system that is deeply resistant to change.

Of course, insisting on these ‘fundamentals’ will inevitably lead to push-back from Uzbek officials and could potentially derail the programme. But ‘presence for presence’s sake’ is not a policy. A principled approach is required – one that ensures the meaningful participation of independent civil society as the beneficiaries of and participants in rule of law programmes. Programmes will only be useful to the extent that they include exercises in actual, uncomfortable reform. Without this, EU taxpayers could be footing the bill for programmes that legitimise, or even perpetuate, an authoritarian system.

The EU’s programme on criminal justice reform in Uzbekistan would be an appropriate project in which to implement a more robust human rights policy. Unfortunately, however, there is still no indication that this substantial programme will allow for meaningful participation of independent rights activists and criminal defence lawyers or independent international human rights organisations.

Given Tashkent’s resistance to reform, one must question how programmes that consist solely of trainings and seminars for judges and prosecutors handpicked by the authorities will promote the rule of law over the long term. Moreover, the EU should avoid making Tashkent’s mere participation in such programmes a substitute for meaningful improvement. Even a successful rule of law programme will only complement, not replace, the Uzbek government’s obligation to meet its commitments under international human rights law.

Steve Swerdlow, esq. is a Researcher on Central Asia at Human Rights Watch. Follow him on Twitter @steveswerdlow