UN Experts Send Follow-Up Letter to Bahrain on Zulfiqar Mass Trial, Highlight Failure of Oversight Mechanisms

On 14 October 2019, five United Nations (UN) Special Procedures offices sent an Allegation Letter to Bahrain concerning the trial of the so-called “Zulfiqar Brigades,” a mass trial of 138 defendants, in which 115 were convicted. The Special Procedures offices sent a previous communication on 5 November 2018, detailing allegations of enforced disappearances, torture to coerce confessions, and unfair trial practices, including in absentia hearings and denial of access to legal counsel. As of the letter’s publication, Bahrain has not sent a reply to the follow-up communication.

On 15 May 2018, Bahrain’s Fourth High Criminal Court convicted 115 of 138 defendants on terror-related charges. The court also stripped all 115 convicted defendants of their Bahraini citizenship. On 28 January 2019, the appellate court upheld the conviction and denationalization of all defendants. On 20 April 2019, following a public statement from the High Commissioner for Human Rights on a similar case, Bahrain’s King Hamad bin Isa AlKhalifa issued a royal order reinstating the nationality of 551 Bahrainis who had previously been stripped of their citizenship through court proceedings, including those convicted in the Zulfiqar case. On 1 July 2019, the Court of Cassation, Bahrain’s highest court, upheld the original convictions and sentences. They have now exhausted all domestic remedies. This case is one of five major mass trials Bahrain has conducted in 2018 and 2019, convicting a total of 504 of 564 total defendants.

The Allegation Letter – signed by the Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on freedom of religion or belief; the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment – details the cases of 21 of the defendants, and addresses Bahrain’s inadequate responses to the previous communication. The Allegation Letter also addressed the lack of impartiality in the Ministry of Interior (MoI) Ombudsman and other internal oversight bodies. Americans for Democracy & Human Rights in Bahrain (ADHRB) served as the source of information on these cases, through its UN Complaint Program.

In particular, the Special Procedures offices noted the Bahraini government’s failure to properly investigate torture, expressing concerns that the only investigations into allegations of torture focused solely on physical evidence, and did not include a psychological assessment:

“We are concerned that according to the information received the SIU did not investigate claims of psychological torture . . . We further remind your Excellency’s Government of the fact that the legally recognized scope of torture includes mental suffering. That some of the injuries of the convicted individuals could have healed or were not visible at the time of examination, does not mean that the victim was not tortured.”

The offices also highlighted the issue of fair trial rights, noting that the Bahraini response did not address the allegations of due process violations, including in absentia hearings, undue delay of proceedings, and warrantless arrests:

“We note that the allegations on the lack of fair trial and due process guarantees in relation to joint communication reference AL BHR 5/2018 have not yet been addressed by your Excellency’s Government . . . Furthermore, the fact that the 20 individuals were arrested without warrant has not been addressed in either of your Excellency’s two responses to the joint communication . . .”

The Special Procedures offices also noted the Bahraini government’s reliance on confessions obtained through torture:

“According to the information in our possession, allegations of forced confessions of ten of the individuals convicted as outlined in the joint communication AL BHR 5/2018 have not been addressed. We recall that in situations in which torture, or other forms of cruel, inhuman or degrading treatment are used to coerce a statement or confession from an accused person, those confessions violate the right “not to be compelled to testify against himself or to confess guilt” and the right to fair hearing. We note that evidence obtained through torture and other forms of cruel, inhuman or degrading treatment may never be used in court, except as evidence of such conduct. Where the accused person challenges the voluntariness of the confession, the burden of proof lies with the prosecution to prove that it was made as a result of the free will of the accused person.”

The Special Procedures offices also noted the lack of independence of oversight bodies, particularly the Ministry of Interior Ombudsman, the Prisoners and Detainees Rights Commission (PDRC), and the National Security Agency (NSA) Inspector General:

“Based on the information we have received, we have concerns that the Office of the Ombudsman is not fully independent and therefore cannot adequately investigate concerns about rights violations because it depends on the Ministry of Interior (MOI) for funding and authority and relies on the SIU for prosecution. The Office of the Ombudsman shows a low record of referrals to prosecution in only 5% of cases of violations committed by state agents. We are also concerned at indications that the Office of the Ombudsman has contributed to the neglect of cases of police abuse, contributing to foster an environment of impunity. We note with concern that it has been reported that reprisals from MOI personnel may further prevent victims of human rights abuses from filing complaints. We are concerned that the PDRC fails to meet the guidelines for a National Preventative Mechanism as established by the Optional Protocol for the Convention against Torture (OP-CAT) . . . As a result, we are concerned about the capacity of the PDRC to adequately address allegations of torture or hold perpetrators accountable. Furthermore, the PDRC does not appear to be mandated to investigate past abuses. This may lead the PDRC to fail to adequately protect the rights of persons in detention.

Your Excellency Government explained that victims and their families are referred to the National Security Agency (NSA) Inspector General (IG) if they wish to file complaints . . . According to the information received, this Office is structurally disinclined to seriously and effectively investigate and report allegations of rights violations . . . From May 2017, the NSA IG has not published any results of its investigations, which makes it impossible to assess the effectiveness of its work. We remind your Excellency’s Government that if investigations into human rights violations are not carried out by independent and impartial bodies, the State violates its international human rights obligations.”*

The offices also expressed concerns about Bahrain’s counter-terror laws and procedures, particularly provisions of the law which allow for prolonged pre-trial detention in cases where terrorism is alleged. They also explicitly raised concerns over enforced disappearances, which were not addressed by the Bahraini government in its response:

“We note that one of the most insidious forms of violation in counter-terrorism operations has been the use of secret or unacknowledged detention, which is prohibited under international law by human rights and humanitarian law norms that may not be derogated from under any circumstances.”

The Special Procedures offices concluded their remarks by reiterating their concerns and requesting a response from the Bahraini authorities:

“As a consequence of the aforementioned concerns and without prejudicing the accuracy of the information received, we are concerned that your Excellency’s Government fails to address the aforementioned allegations in the responses provided to joint communication reference AL BHR 5/2018. Our concern in this latter regard is particularly heightened since the forced confessions allegedly obtained under torture appear to have been used as evidence in court, thus forming the basis for conviction. Charges of the most serious crimes, including for “terrorism” do not release the State from its international obligations to prevent torture, disappearance, and to safeguard the due process rights of persons undergoing judicial proceedings.”

As of 16 December 2019, when the Letter was published, the Bahraini government has not sent a response.

“This follow-up letter from Special Procedures exposes the Bahraini government for the hypocrites that they are,” said Husain Abdulla, Executive Director of ADHRB. “It is clear from the Bahraini government’s responses to the initial communication that the authorities had absolutely no intention of taking these allegations seriously and investigating harm, but were instead using the UN human rights mechanisms to whitewash human rights abuses by responding with bland information about oversight bodies. This follow-up letter from Special Procedures shows that the international community is not fooled, and will not buy their lies.”

ADHRB welcomes the commentary of the Special Procedures offices and echoes their concerns about the abuse of counter-terror law, warrantless arrests, torture to produce confessions, unfair trial proceedings, and ineffective complaint and oversight bodies. In light of these unfair and unlawful practices, ADHRB calls on the Bahraini authorities to annul the convictions of these individuals, and if serious criminal charges can be maintained against them, to ensure that any future trial would be conducted under international fair trial standards and guarantees, in line with Bahrain’s human rights obligations. We also call on the Bahraini authorities to open transparent and impartial investigations into allegations of torture and ill treatment, with a view to holding perpetrators accountable and combatting impunity. We further call on Bahrain to amend its counter-terror legislation to bring it into compliance with international human rights law and standards. Finally, we call on the Government of Bahrain to reform its oversight mechanisms, particularly the MoI Ombudsman, PDRC, and NSA Inspector General, to ensure true independence and impartiality.


*Emphasis added