From 30 April to 4 May 2017, Ben Emmerson, the former United Nations Special Rapporteur on promoting and protecting human rights while countering terrorism, undertook an official country visit to Saudi Arabia. Upon the conclusion of his visit, he criticized Saudi Arabia’s counter-terror framework as overly restrictive and vague – a mechanism that allows authorities to prosecute peaceful activists on terrorism charges. Referencing Saudi Arabia’s 2014 Law on Countering Terrorism and its Financing in his end-of-visit remarks, Emmerson stated that the law fails to “comply with international human rights standards of legal certainty,” and he called on Saudi Arabia to “stop using counter-terrorism legislation against people peacefully exercising their rights to freedom of expression, association and assembly.” In his follow-up report, published as an advance un-edited copy on 6 June 2018, the former Special Rapporteur expands on his previous criticism of Saudi Arabia’s counter-terror rubric, strongly condemning the kingdom’s “use of counter-terrorism legislation with penal sanctions against individuals peacefully exercising their rights to freedom of expression, as well as freedom of religion or belief and freedom of peaceful association and assembly.”

Saudi Arabia promulgated its first counter-terror law in late 2013, although it came into force on 1 February 2014. In his report, Emmerson notes that “The 2014 law had a very broad definition of terrorist crimes, which encompassed any act ‘directly or indirectly intended to disturb the public order of the state, or to destabilize the security of society, or the stability of the state, or to expose its national unity to danger, or to suspend the basic law of governance or some of its article, or to insult the reputation of the state or its standing, or to inflict damage upon one of its public utilities or its natural resources.’” Significantly, the law departs from international norms concerning the definition of terrorism as a violent act. By not defining terrorism as “acts or threats of violence committed for political, ideological, religious, or other motives, aimed at spreading fear among the population in order to coerce a government to take or refrain from any action,” Saudi authorities leave open the possibility that non-violent actions could be a classified as terror crimes. In this way, the Saudi government uses its counter-terror law, with its broad and vague definition of terrorism, to restrict fundamental freedoms and “criminalize a wide spectrum of acts of peaceful expression, opinion, assembly and association, as well as freedom of thought and religion.”

Under this counter-terror framework, the Saudi government has systematically targeted, prosecuted, convicted, and imprisoned numerous human rights defenders and activists for their free expression, association, and human rights work. In his report, the Rapporteur highlights the case of Waleed Abu al-Khair, a human rights lawyer and the head of the Monitor of Human Rights in Saudi Arabia, noting that Abu al-Khair was the first activist convicted on counter-terror charges under the 2014 law. Since then, however, the Rapporteur notes that the kingdom has imprisoned “many prominent human rights defenders, religious figures, writers, journalists, academics and civic activists” on terrorism charges. Among those who have been convicted under the 2014 law are the members of the Saudi Civil and Political Rights Association (ACPRA), almost all of whom are currently in prison. Of the 11 members who signed its founding statement, Abdulaziz al-Shubaily, Issa al-Hamid, Mohammed al-Bajadi, and Omar al-Said were sentenced most recently. In addition to rights defenders, Saudi officials have imprisoned journalists like Wajdi al-Ghazzawi, Saleh al-Shehi, and Nadhir al-Majid using the 2014 law. The Rapporteur notes that many activists convicted under the kingdom’s counter-terror framework are also the “subjects of communications from the OHCHR’s special procedures mandate holders.” Unfortunately, the report states that “Despite repeated requests by the Special Rapporteur, the Government did not give access to any of the individuals currently in detention for offences related to the exercise of free speech rights.”

Due to its centrality in Saudi Arabia’s counter-terror rubric, the Special Rapporteur repeatedly criticizes the Specialized Criminal Court (SCC) – Saudi Arabia’s counter-terror court system – as a partial, government-connected institution responsible for the prosecution and conviction of activists on free expression, assembly, association, and religion crimes. The report highlights that the SCC was founded in 2008 to try detainees held in connection with terrorism crimes, but that since 2010 “and for the past 8 years, the Court has been used increasingly for the prosecution of human rights and political activists.” Although trials in the SCC are shrouded in secrecy, there have been numerous, credible reports that such trials are unfair and devoid of due process guarantees. Among the violations are trials that commence without defense lawyers, secret trials, trials in absentia, and the use of torture-induced confessions as legitimate testimony. The frequency of such trials demonstrates the systematic nature of the SCC’s departure from international fair trial and human rights standards.

While the report notes that the Saudi government officially prohibits torture, the Rapporteur states that his mandate “received well-documented reports of the use of torture and ill-treatment by law enforcement officials against individuals accused of having committed acts of terrorism, and use of coerced confessions as sole or decisive evidence in their conviction.” Despite the credibility of the allegations, the report notes that they were not taken seriously by SCC trial judges: “Between 2009 and 2015 more than three thousand allegations of torture were formally recorded. Despite this, the Special Rapporteur is not aware of a single official prosecuted for committing an actor of torture or other ill-treatment.” As a result, the nominal protections enshrined in law “appear illusory in practice.”

While the Rapporteur expresses broad concern over unfair trials in the SCC, he singles out trials ending in capital punishment sentences as particularly egregious. While the report does not explicitly link trials in the SCC, death sentences for peaceful activism, and Saudi Arabia’s Shia minority population, Shia defendants on trial in the SCC for expression or protest related crimes often receive capital punishment sentences after unfair trials. For example, the Rapporteur’s report raises the case of Sheikh Nimr al-Nimr, a Shia cleric and social justice activist who was arrested and tried as a terrorist before being executed along with 46 other people on 2 January 2016, despite his long history of nonviolence. While the majority of those executed alongside Sheikh al-Nimr were terrorists and members of organizations like al-Qaeda, the government also executed several peaceful Shia protesters, including Mohammed al-Shioukh, Ali al-Rebh, and Mohammed al-Swaymil. There are currently at least 33 men on death row for political crimes related to free expression and assembly; uncoincidentally all of whom are Shia, demonstrating the Saudi government’s continued antipathy towards its Shia minority population.

The kingdom’s propensity to utilize capital punishment, including for expression- and association-related crimes, makes it one of the world’s most frequent executioners. The Saudi government has executed 595 people since 2014, including over 140 people in 2015, 2016, and 2017. Such is the number and frequency of executions per year, that the Rapporteur’s report says Saudi Arabia “remains wedded to the cult of execution.” More broadly, given the manner of executions in the kingdom – beheadings often followed by crucifixion, stoning, and the firing squad occasionally followed by amputation of hands and legs – the Rapporteur notes that “the imposition of the death penalty – particularly in the barbaric and public way in which it is used in Saudi Arabia – is incompatible with fundamental tenets of human rights law.”

Even as the Rapporteur’s report strongly criticizes the Saudi government and its 2014 counter-terror law for its broad and vague language, including articles allowing prosecution for fundamental freedoms like expression, association, assembly, and religion, it notes that the new counter-terror law, promulgated in November 2017, includes more egregious language. Where the 2014 law broadly criminalized expression deemed a threat to state security, among other things, the 2017 law explicitly “extends the definition of terrorism to those who ‘describe’ the King or Crown Prince ‘in any way offensive to religion or justice.’” Similarly, while the 2014 law did not prescribe punishments for terror crimes, keeping the language and legal framework broad and open to interpretation, the 2017 law explicitly “provides the death penalty for crimes that do not entail the loss of life.” Furthermore, the 2017 law provides the Public Prosecutor with “unconstrained discretion to forbid lawyers from communicating with their clients at any time during the investigation,” in a move certain to hamper due process even further.

The Special Rapporteur’s concerns iterated in his report over Saudi Arabia’s counter-terror framework are interdisciplinary. They encompass worries over the lack of freedom human rights defenders and activists have to peacefully criticize the government, the kingdom’s fundamentally unfair counter-terror court system, impunity for security forces engaged in torture, suppression of civil society, religious discrimination, and the flagrant use of capital punishment for peaceful expression-, religion-, and assembly-related charges. But even while the majority of the Rapporteur’s comments concerned Saudi Arabia’s 2014 counter-terror law, he highlights that the 2017 law is in several ways more problematic.

The passage of the 2014 and 2017 counter-terror laws are both causes and symptoms of a broader problem in how Saudi Arabia pursues alleged terrorists. As a result, repealing the 2017 counter-terror law is not enough to address the structural problems inherent in the kingdom’s counter-terror framework. Rather, Saudi Arabia must adopt a multifaceted counter-terror approach that prioritizes human rights and fundamental freedoms. It must repeal restrictive laws limiting civil society engagement, promulgate legislation promoting and protecting the rights to free expression, association, assembly, and religion, and simultaneously undertake an awareness campaign designed to educate Saudis about international human rights. The kingdom must further abolish the Specialized Criminal Court and introduce measures to make the regular court system more transparent, while ensuring that security forces cannot forcibly disappear or arbitrarily detain people, and ensure that those who have been detained have full access to legal counsel. Moreover, the kingdom must abolish torture and prosecute those members of the security forces that engage in torture, while training judges to recognize signs of torture and to end trials in which the defendant exhibits such signs. The kingdom can begin this process by issuing open invitations to all Special Procedure mandate holders and work with the mandate holders and the Office of the High Commissioner for Human Rights to begin the process of dismantling its overly restrictive counter-terror rubric and ensure fidelity with international human rights norms concerning protecting human rights while countering terrorism.