In Robert Amsterdam’s latest article on Huffington Post, he argues that we should stop asking for fair trials in political cases if it is clear that they are impossible in a given country.
So it is against this backdrop that we are expecting Kazakhstan to observe due process and legal rights of a mild mannered and respected government critic, when only four months ago a UN rapporteur on torture was denouncing “many credible allegations of beatings with hands and fists, plastic bottles filled with sand, police truncheons; of kicking, asphyxiation through plastic bags and gas masks used to obtain confessions from suspects.”
It’s not only surreality, it’s a crime against reality for us to carry on pretending that countries like Kazakhstan can hold fair trials. Even if they were motivated to treat Zhovtis fairly, there is a structural inability to administer justice with any level of credibility under current conditions. (…)
What we should focus on, at the very least, is coming up with something more effective to say and do when a government lacks a functioning legal system, and appears to be on the verge of rigging up a political trial against an opponent. If a state has not met a hypothetical minimum criteria for rule of law agreed on by the international community, then the conclusion should be similar to the minimum criteria for a democratic vote – that we stop pretending the government is something that it is not. Incentives must be created for these states to take concrete and measurable steps toward judicial independence and rule of law. For example, legislative provisions could be made to prevent their state-owned interests from acquiring property abroad until improvements are made – or one of many other ways to ensure that the importance of human rights is finally felt in the presidents’ personal pocket books.