in implementing the Bahrain Independent Commission of Inquiry
The almost 500 page BICI report described in some detail the main human rights violations that occurred in Bahrain in February and March 2011. The findings of the commission incriminated the state in grave violations of human rights, in particular, it identified systematic torture which can amount to a crime against humanity under international law. The recommendations fall far short of the gravity of the findings. Some issues are completely absent, and others incorrect.
General shortcomings in process of implementation/procedural issues
No payment disclosure or transparent tendering process
None of the consultants hired to implement the BICI recommendations has disclosed his salary, and the government has apparently not gone through the normal tender and procurements proces in selecting the consultants. The government has also not revealed its basis for selecting specific experts. Consultants include "supercops" John Timoney and John Yates, the "external legal experts" Sir Daniel Bethlehem, Sir Jeffrey Jowell, Professor Adnan Amkhan, Professor Sarah Cleveland, and Mr. David Perry, the "French media experts" Pascal Josephe and Didier Sapaut from media consultancy IMCA, and various organizations providing "technical assistance" to the Public Prosecution such as the American Bar Association's Rule of Law Initiative and the International Institute of Higher Studies in Criminal Sciences (ISISC).
No clear official mandate for Professor Bassiouni
Professor Bassiouni is expected to publish a report in March 2012 evaluating the government's implementation of his commission's recommendations, but he has no clear official mandate. There is also the appearance of conflict of interest given Bassiouni's dual roles as contractor and evaluator: Bassiouni founded and chairs ISISC, one of the companies providing technical assistance and training as part of the implementation of BICI recommendations.
Areas completely missing from the report, where the commission failed to investigate
The report avoids naming perpetrators of human rights atrocities altogether
Despite having access to all government files and the right to question any official, BICI chose not to direct any blame at any specific official or rank, settling instead for assigning responsibility of violations to the obvious culprit, the main security agencies, the Ministry of Interior (MOI) and the NSA. When asked why, Bassiouni replied that he did not receive any specific names of any officials from victims. According Hugh Tomlinson, Commissioner Sir Nigel Rodley stated that they simply did not have enough time. The former excuse is not believable, since many victims have gone on the record to identify their torturers, and the latter is not acceptable, since abundant resources were made available to do just that. Since Bassiouni was far more candid at pointing the finger at the MOI in a post-report interview with al-Wasat, one can only speculate as to why he did not name officials directly in the report.
The report failed to investigate the Army takeover of the medical sector
The report ignored the indisputable breach of medical neutrality after the army captured the hospital, and committed violations against injured protestors that infringed on the right to access to medical care, such as preventing people from getting treatment, beating patients on hospital beds for punitive and discriminatory reasons, especially in the sixth floor as has been documented by local and international NGOs, and the attacks on health centers and ambulances. The report did not even touch these issues on the chapter relating to events that occurred at Salmaniya Hospital and focused only on the role of SMC staff and admin. It did not mention or indeed dispute the need for military control of the hospital or the impact that had on the ability of the wounded to receive treatment and the state of fear that created that led many wounded people to avoid hospital treatment. While focusing on the role that medics at the hospital played it completely ignored the BDF's role in the most serious violations. What is even more strange, is that it failed to investigated the security operations on at least ten health centres around the country and the effect that also had on medical neutrality.
The report failed to investigate the use of aired forced confessions and the clearly identifiable officials behind them
Bahrain TV over the period between March and April aired several confessions and apologies that defendants claim they were forced to make due to a threat of torture. In fact, one of the defendants, Ali Sager, who was accused of murder, appeared on state TV confessing to the murder after his body was given to his family bearing all the marks of torture. This directly incriminates the highest authorities in the security and television sector. This is a direct breach of the right against compelled self-incrimination and on which hundreds of prisoners have been convicted and continue to be detained. It is astonishing that a commission of this integrity fails to investigate this practice.
The report did not question the role of the King, Crown Prince, Prime Minister
The investigation was mandated to identify what happened and who is responsible for human rights violations. Though the report states that "the King enjoys broad executive powers.", the report did not question his role as head of state and the responsibility that he bears. It seems to have been a foregone conclusion that no explicit blame would be directed at King Hamad bin Isa Alkhalifa, Crown Prince Salman bin Hamad Alkhalifa; or Prime Minister Khalifa bin Salman Alkhalifa. It appears that was the whole point of the establishment of the commission. All along it was believed that the report would exonerate these three, and so, unsurprisingly, it did just that. This defies the widely known fact that the prime minister ordered the campaign of persecution when he vowed to punish every "traitor," which meant, in essence, everyone in the opposition because one of their main demands is to remove him after forty years in power.
The Decision To Bring Saudi Troops
One of the most important findings was that there is no evidence of Iran's involvement. Given this, the report should have questioned the decision to bring in troops from the Gulf Cooperation Council (GCC). That army is supposed to be mobilized to defend against an external threat. The GCC's decision in Bahrain set a precedent that a state's paranoia alone is enough to mobilize the GCC army. Commissioner Badriya Alawadhi had defended the right to use the GCC forces before BICI began in article she wrote in Alqabas at the time the Jazeera Shield Force entered Bahrain. She offered no re-assessment of her position after she found out there was no evidence of Iranian involvement.
The report does not connect the Dots to look at the persecution of Shi'a people overall
By looking at the report's parts (each violation is treated separately) and not its sum total, there is no acknowledgment of the overall policy of persecution which goes beyond systematic torture alone. The entire state apparatus was used to repress, and this is not perceptible if violations and responsibility are confined within distinct silos, for example violations perpetrated by the MOI, or within judicial system, or within the BDF alone. The campaign of repression and persecution was coordinated across ministries, and overseen by the prime minister who had said, "No violators will get away with it." He added, "All co-conspirators and abettors must be held accountable" (page 324). In contrast, the report of the UN Fact-finding mission in Syria does precisely this.
Areas where the recommendations are not commensurate with findings
The report failed to recommend accountability of violations committed by the Bahraini Army
All the recommendations in the report are directed at the MOI, pitching the problem as one due to a dysfunctional police force rather than one where there was an operational command structure following orders from the very top echelons of power. According to the findings in the report however, the Bahraini Defense Forces (BDF) had a direct role in human rights violations by killing at least two protestors (Abdulredha Buhmaid and Bahiya Alaradi), torturing prisoners both in the military hospital and in the military (Alqurain) prison, using summary justice by trying civilians in military courts, taking over the main public hospital and demolishing mosques. In addition, it is well known that the army took control of a number of police stations, such as Naeem police station, which came under the direct authority of the military prosecutor, and in which most of the torture allegations arose. The report itself pointed to the meetings of the National Safety Council, which was under the supervision of the Commander in Chief, and which appears to be responsible for the entire security situation. Therefore, exempting the army from liability is very strange.
The report notes, "The Commission has not found evidence establishing a purposeful practice of excessive use of force by BDF units that undertook field operations or that manned checkpoints in parts of Manama and other towns." This doesn't match the detailed narration of the killing of Redha Buhumaid in paragraph 934. The emphasis on the report was to put the blame on Bahrain's homeland security. The omission of this seems very strange if not deliberate.
The report fails to demand the release of Political Prisoners
The report states that the government sought convictions based on laws that "punish those in the opposition and to deter political opposition." It confirms that systematic torture was used to obtain confessions, such as enforced standing for prolonged periods; beating; punching; hitting the detainee with rubber hoses, cables, whips, metal, wooden planks; electrocution; sleep deprivation; exposure to extreme temperatures; verbal abuse; threats of rape; and religious insults. The report is critical of the military trials that took place, questions the nature of political charges, and admits that 300 prisoners are held on highly questionable grounds related to political dissent alone. Yet despite all this, the report stops short of recommending the immediate and unconditional release of prisoners. This is inexplicable and unacceptable.
The report fails to mention that the policy of sectarian policing that proved fatal in crackdown
The report steered away from judging the government's longstanding policy of intentionally creating sectarian discord, particularly through the use of sectarian policing and importing foreign "manpower" or what locally is referred to as "mercenaries" in the police. The report states "The BDF employs a large number of non-nationals." The report further states that "discontent among Shia is further heightened by the large number of expatriates who are employed by these agencies[BDF, NSA and police], which generates the impression among many that this policy reflects governmental mistrust of Shia who believe that, as Bahraini citizens, they ought to staff these positions." Al-Jazeera reported on this phenomenon in July 2011. The recommendations did not address this policy at all, in spite of the fact that it has direct human rights implications. The Government made these officers feel directly threatened by protestors who were portrayed as objecting to their employment by the state, and were thus incited to inflict the worst forms of cruelty on prisoners. This omission of this issue in the recommendations leaves a burgeoning problem unaddressed. In order to resolve the political conflict, there must be serious plans to ensure representation of Shia in the security sectors.
The report fails to examine the armed militia deployed by parties associated with the security forces commonly known as "Baltageyya"
One of the common phenomena in the Arab world are the "baltageyya," armed government-sponsored vigilantes. The report notes, "individuals carrying swords and sticks were seen walking towards Roundabout 22 in Dar Kulaib where they were recorded to have damaged public property and private vehicles." In Bahrain, the Baltageyya were police by day and thugs by night, or were newly recruited loyalists trained to attack protestors and instigate clashes. Few were of Bahraini origin; most were newly naturalized foreigners or just paid migrant expat workers. The existence of baltageyya is acknowledged elsewhere in the report when quoting the crown prince who refers to them directly. An even more incriminating reference is in the document drafted by Jeffrey Feltmen which says, "The BDF and MOI will immediately implement an operation to terminate all vigilante activity." Yet the report does not investigate this phenomenon to find out who was really behind the vigilantes. Substantial evidence exists of armed thugs walking in the streets of Hamad town carrying Al-Qaeda flags, attacking nurses in the University of Bahrain, and there are films of training camps for thugs as well as direct testimonies from the faculty themselves. Public officials linked to the security forces incited violence openly on the Salafi television station, al-Wesal. Yet all of this was conveniently omitted, and a whole section was dedicated to "attacks on the Sunni community" rather than attacks by suspected government thugs. In fact a doctor was incriminated in the report on the grounds of "breaching patient confidentiality" for showing the ID cards of injured thugs in civilian clothing that indicate they are members of the security forces. He was trying to prove the point that there is a difference between a "Sunni" and a government thug.
The result of the failure to investigate or even acknowledge the baltageyya is that eight deaths listed in the report as "Civilian Deaths not Attributed to Specific Perpetrators" are actually believed to have been people killed by baltageyya.
The report offers a weak recommendation on "reconciliation" rather than reform
The report states that "Many of the demands for political and socio-economic reforms voiced in February and March 2011 were not new. However, no actions toward geniune reforms" and "No actions toward work for reforms based on well established principals and processes of democracy, good governance and respect for internationally protected human rights" have as yet been taken by the Bahraini government, and the report makes no recommendation for this to happen.
Role of Bahrain TV underplayed
The report states that "while efforts to find a negotiated solution to the ongoing crisis in Bahrain were underway, other aspects of government policy seem to have exacerbated public discontent. For example, government media outlets, especially Bahrain Television, provoked criticism for what many considered to be biased coverage of the unfolding events promoting sectarianism." In fact, the media were pivotal in scaremongering, and there is a questionable relationship between state TV and the security agencies: state TV directors were present during the filming of confessions at the NSA and programs like Alrased defamed and identified protestors, who were later arrested. In addition, state TV unnecessarily exaggerated the situation at the hospital which led many Sunni patients to avoid treatment there. The report does not recommend that action be taken against government officials in the IAA or BTV or printed press.
The report failed to explicitly recommend an end to the indiscriminate use of tear gas
"The Commission has found that PSF units resorted to the disproportionate use of tear gas for the dispersion of protesters. On many occasions, the number of tear gas canisters fired at protesters was disproportionate to the size of the demonstration and the number of participants. In a number of situations, tear gas canisters were fired at private homes, in a manner that was unnecessary and indiscriminate." This has increased even after the BICI report. Since its publication around 15 people have died from respiratory problems induced by the excessive use of tear gas. The report failed in urging GoB to end its reliance and use of tear gas in residential areas where vulnerable people, particularly the young and old are at great risk. The commission had detailed knowledge of the death of Ali Jawad who was hit with a tear gas canister on the neck, however the commission did not include details of its investigation or hold the security forces to account.
A related point is that the report recognizes people's right to peacefully protest and says that the government "resorted to the use of unnecessary and excessive force [and] terror-inspiring behavior" but stopped short of calling for a halt to routine attacks on such protests. Rather, it called for better training, more investigations, more commissions.
Report failed to hold to account employers both public and private who dismissed staff unfairly
"Various government officials, having publicly condemned the demonstrations, created an environment whereby individuals participating in demonstrations and strikes could face retaliation for their involvement by employers. In addition, the Commission has received anecdotal evidence suggesting that government representatives directly encouraged companies to dismiss employees suspected to be involved in the events of February/March 2011." No actions were taken against these government officials.
Report fails to urge an end to the hate speech that is condoned by the Bahraini government
The report states that "The GoB uses firewalls to block certain social media and other websites. However, the GoB has not permanently shut down Twitter feeds such as Harghum even though they produced material that international law requires to be prohibited and which is in fact prohibited under Bahrain law." Furthermore, it does not go on to recommend that the responsibility lies with the Bahraini government to punish and to censor such material.
The report fails to recommend the introduction of an independent judiciary through significant restructuring
Given that the report outlines the use of politicised and unfair trials of hundreds of civilians including resorting to military courts for civilians, it seems inadequate that the commission merely recommends the re-training and qualification of the judges and the members of the public prosecution. Reducing the problem in the judiciary to one of insufficient training is a grave error and is not commensurate with the size of the problem cited by the report. There is a lack of independence, insufficient accountability, and a clear imbalance in the judiciary and its members, which would require a recommendation to restructure the judiciary. The serious mistakes committed by the judiciary do not result from training issues. The commissioners should have investigated how these members of the Public Prosecution, who committed these serious mistakes, were selected in the first place. The report in paragraph 1716 recommends that the GoB develops an independent and impartial mechanism to hold accountable those responsible, being aware of the futility of training those judges and prosecutors and their lack of independence to decide on these issues. It implicitly acknowledges that the judiciary is unable to deliver justice in its current structure, yet does not recommend significant restructuring of it, as it has done for the MoI.
The report stops short of recommending the elimination of the judgement of the national safety courts despite it falling short on international standards for fair trial
The report raises questions over the constitutionality of the decree of National Safety (a form of martial law) and the formation of the special military courts, and acknowledges the absence of fair trial standards. The natural and rational solution to this is to recommend the nullification of the judgments of the National Safety courts. Simply reviewing the judgements is not enough given the irrefutable evidence of violations of due process. The report (in paragraph 1722) recommends the commutation of sentences issued on cases related to freedom of speech, because the government used laws to deter and suppress the opposition, in violation of the principle of freedom of speech. The logical recommendation would be to amend the laws to bring them into compliance with the International Covenant on Civil and Political Rights. The recommendation in paragraph 1720 falls far short of doing this.
In not doing this, the GoB has continued trying detainees on the same charges and under the same partial system, which means even in the case of appeal in a normal court, defendants have missed the opportunity to litigate. The commission has failed to uphold the ICCPR in this case.