Georgia’s very own Öcalan? Mukhtarli’s Cross border-abduction in light of Georgia’s obligations under IHRL

This post concerns the case of Afgan Mukhtarli, an Azerbaijani investigative journalist (reporting on the possible corruption of Azerbaijani Authorities) who was allegedly abducted from Tbilisi, Georgia. He is now facing trial in Azerbaijan. Notably, Georgia’s International Human Rights Law (IHRL) obligations vis-à-vis Mr. Mukhtarli are brought to the forefront.

The Facts

On 29 May 2017, Afgan Mukhtarli, who had been in exile in Georgia with his wife since 2015, supposedly vanished near his home in Tbilisi. As stated by Mukhtarli’s lawyer, Mr. Sadigov, Mukhtarli was snatched by men who are believed to be agents of the Georgian Security Forces. They were dressed in plain clothing. According to Mukhtarli, his captors changed vehicles at least twice (see here and here). In the second vehicle, the kidnappers spoke Azeri and eventually brought Mukhtarli to an Azerbaijani border checkpoint in the Balaken district (border shared by Georgia and Azerbaijan), at about 11 p.m. on 29 May . He is now in detention in Baku and, according to the HRW, faces bogus, politically motivated charges of illegal border crossing and smuggling. On 31 May, additional charges against Mukhtarli were pressed by the Azerbaijani authorities, blaming him of violent resistance against law enforcement officials. Baku’s Sabail district court sent him into pre-trial detention for three months. According to Amnesty International, Mr. Mukhtarli is at risk of torture.

On 30 May 2017, a statement by the Public Defender of Georgia called on Georgia’s Law Enforcement agencies to urgently and effectively respond to Mukhtarli’s case. On 31 May 2017, the Ministry of Internal Affairs of Georgia stated an investigation of illegal restriction of freedom had been launched.

Unwilling or unable to protect human rights?

The way this case comes across, is that the Georgian Government failed either willingly or unwillingly to protect Mr. Mukhtarli on its soil under IHRL. If Georgia failed unwillingly to protect Mr. Mukhtarli, then this conveys Georgia’s border forces are not fully able to discharge their duties, and anyone can either freely enter Georgian territory or leave unchecked. This would also suggest, the Georgian government and its organs are not in full control of Georgian territory’s ins and outs. On 1 June 2017, Georgia denied to be the part of the kidnapping. A follow-up question, however, to such a denial is whose state agents were then involved in the kidnapping and transport of the journalist to the Georgian-Azeri border? On the other hand, if Georgia failed willingly, this would signify, Georgia’s security forces were all along aware of the operation taking place and were in fact even part of what seems a carefully orchestrated move. Georgia would subsequently be in breach of the ECHR, CAT and the ICCPR to name just a few instruments.

What does IHRL have to say?

To begin with, the main aim of IHRL is to protect individuals from their rights being violated. It was “devised to protect the individual against the arbitrary exercise of power by the authorities of the territorial state.” (F. Coomans and M. T. Kaminga, ‘Comparative Introductory Comments on the Extraterritorial Application of Human Rights Treaties’, in F. Coomans and M. T. Kamminga (eds), Extraterritorial Application of Human Rights Treatise (Antwerp- Oxford: Intersentia, 2004), 1-7, at 1). When states ratify IHRL instruments, they pledge upholding the rights enshrined by the latter. IHRL is applicable to “everyone everywhere” (M. Sassòli et al, How Does Law Protect in War? Vol. I (ICRC, 2006) at 341), including situations of state extraterritorial activities (see K. Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff Publishers 2013)). In other words, a state is under the obligation to respect and protect human rights as guaranteed by applicable treaties wherever it exercises jurisdiction, i.e. control.

Consequently, IHRL binds states with both negative and positive obligations, the former obliging a state to respect human rights, that is not to commit human rights violations; the latter requiring a state to ensure or secure the human rights of persons within its jurisdiction and prevent human rights violations by foreign states or private individuals (M. Milanovic, ‘From Compromise to Principle: Clarifying the concept of State Jurisdiction in Human Rights Treatise’, 8 Human Rights Law Review (2008), 411-448, at 441-442).

To be even more precise, the negative and positive obligations can be then divided into three levels of obligations (W. Kälin and J. Kunzli, The Law of International Human Rights Protection (Oxford University Press, 2010) at 96-97):

  1. Obligation to respect: states do not interfere in the enjoyment of persons’ rights, i.e. negative obligations; (ibid., 96)
  2. Obligation to protect: states have positive human rights law obligations to protect the interests of those concerned and protect their human rights against threats emanating from breaches by third parties, natural or human made risks. In practice, this involves ensuring the concerned human rights guarantees, not only between private actors, but also “vis-à-vis state agents acting ultra vires or agents of third states.” (ibid.)
  3. Obligations to fulfil, a third level, show that states are required to fulfil human rights, i.e. to ensure that they are realised in practice as comprehensively as possible, in the form of the adoption of legislative or administrative measures to establish the legal, institutional and procedural basis for the full realisation of the concerned right (ibid., 97).

The particularity of the obligation to protect is that it arises if the state is aware, or could have been aware; if sufficient caution had been exercised of the violation or threat thereof; and if it has practical and legal means to prevent it. The obligation to protect may either be immediate and operational, encompassing police intervention; amount to precautionary measures, e.g. by a court; or take the form of legislative enactments, such as statutory prohibitions and penalties (ibid., 96). 

Conclusion

In this case, Georgia appears to have failed to protect Mr. Mukhtarli, in the segments of prevention and protection. It is improbable the border guards did not notice the situation Mr. Mukhtarli could have been in. The checkpoint guards – as agents of the state of Georgia – were under the obligation to impede the crossing of Mr. Mukhtarli and those accompanying him, to say the very least. This would have averted his forceful return to Baku.

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