UN Experts Declare Kameel Juma Hasan Arbitrarily Detained, Note Systemic Violations in Bahrain May Constitute Crimes Against Humanity

17 June 2021- Today the United Nations Working Group on Arbitrary Detention (WGAD)  published an Opinion on its website concerning Kameel Juma Mansoor Salman Hasan, the son of Bahraini civil society activist and former prisoner of conscience, Ms. Najah Ahmed Habib Yusuf, who had been declared arbitrarily detained by the WGAD. Facing over 20 different prosecutions on various charges, Kameel was arrested when he was only a minor, sentenced to a total term of imprisonment of 27 years and 10 months after appeal, and prohibited from continuing his education in prison. The Working Group asserted that Kameel’s detention is arbitrary, due to the unlawfulness of his arrest, the various violations of his right to fair trial––from his denied access to legal representation to his coercion into signing pre-prepared records––as well as his targeting as an act of reprisal against his mother’s activism. Due to the gravity of these violations, the Working Group has referred his case to the Working Group on Enforced and Involuntary Disappearances (WGEID), the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SR on Torture), and the Special Rapporteur on the Independence of Judges and Lawyers (SRIJL).

Through its UN Complaint Program, Americans for Democracy & Human Rights in Bahrain (ADHRB) regularly receives information from Bahraini individuals and employs their accounts as key evidence in submitted complaints to the United Nations Special Procedures Offices. As such, the documentation collected by ADHRB was the source of information upon which the WGAD based its Opinion on Kameel’s case.

In its Opinion (No. 2/2021), which it adopted on 3 May 2021, the WGAD determined that Kameel’s deprivation of liberty and detention is arbitrary according to various categories of its methods of work, and is thus in violation of Bahraini domestic law and several international human rights law provisions. The Working Group has requested the Government of Bahrain to take immediate and necessary measures to remedy Kameel’s situation, and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In that context, the Working Group has indicated that appropriate actions in Kameel’s case would be to:

Release [him] immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law. In the current context of the COVID-19 pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government to take urgent action to ensure his immediate release…[and] to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Kameel, including the allegation that he was tortured, and to take appropriate measures against those responsible for the violation of his rights.

ADHRB welcomes this Opinion by the WGAD and urges the Bahraini authorities to “immediately and unconditionally release Kameel while granting him the right to reparations as well as ensuring that he receives medical care and resumes his education outside prison.

We share the WGAD’s concerns over the widespread patterns of warrantless arrest, fair trial rights violations, enforced disappearance, torture, denial of medical care and other systematic “violations of the rules of international law in Bahrain, which may constitute crimes against humanity.” Furthermore, ADHRB seconds the Working Group’s call for a country visit:

As a current member of the Human Rights Council, it would be timely for the Government to extend an invitation to visit, and the Working Group looks forward to a positive response to its previous request to visit.

The WGAD is one of the Special Procedures offices of the UN Human Rights Council. As part of its regular procedures, the Working Group sends allegation letters to governments concerning credible cases of arbitrary detention. The Working Group may also render Opinions on whether an individual or group’s detention is arbitrary and in violation of international law. The WGAD reviews cases under five categories of arbitrary detention: when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (Category I); when the deprivation of liberty results from the exercise of the rights to equal protection of the law, freedom of thought, freedom of opinion and expression, and freedom of assembly, among others (Category II); when violations of the right to a fair trial are so severe that the detention is rendered arbitrary (Category III); prolonged administrative custody for refugees and asylum seekers (Category IV); and when the detention is discriminatory on the basis of birth, national, ethnic or social origin, language, religion, economic condition, political or other opinions, gender, sexual orientation, disability, or any other status (Category V).

In the present Opinion, the WGAD found that Kameel, who is currently incarcerated at the New Dry Dock Prison reserved for inmates under the age of 21, has suffered a slew of illegal human rights violations. First, he was unlawfully arrested without a warrant; second, he was not brought promptly before a judge nor granted legal representation; third, he was subjected to torture; and fourth, he was convicted in an unfair trial that relied on confessions signed under physical and psychological pressure.

The torture that Kameel was subjected to included being beaten across his whole body with a focus on his genitals, being forced to stand for extended periods of time, and psychological torture in the form of continuous forced shaving of his head. The Working Group highlighted the fact that, “the use of physical or psychological force on a child is an extremely serious abuse of power, entirely lacking in necessity and proportionality.” Furthermore, when addressing Kameel’s solitary confinement in prison, the Working Group emphasized that “solitary confinement must not be used for a child and may amount to torture or other cruel, inhuman or degrading treatment or punishment.” The Working Group also noted the fact that Kameel has been denied his right to education in prison, in violation of the Convention on the Rights of the Child (CRC). As a result of all of this treatment, Kameel experienced psychological distress.

According to the WGAD, the Government did not fully address the claims of torture and did not provide a convincing account of Kameel’s location and activity between January 2-5, 2020. The Working Group has therefore determined that the allegations of torture are credible, and that the authorities violated Article 5 of the UDHR, Article 7 of the ICCPR, Article 37(a) and (c) of the CRC, and Articles 2 and 16 of the Convention against Torture (CAT).

The Working Group has determined that by arresting Kameel without a warrant, the authorities violated Article 9(1) of the ICCPR and Article 37 (b) of the CRC. Furthermore, Kameel was not brought promptly before a judge following his arrest. Because Kameel was a minor, a stricter standard of promptness is applied, meaning that he should have been brought before a judge within 24 hours, rather than 48 hours, of arrest.[1] While the Government argued that Kameel was brought to the Public Prosecutor’s Office (PPO) on January 2, 2020, the WGAD dismissed this argument stating that a prosecutorial body cannot be considered a judicial authority for the purposes of Article 9(3) of the ICCPR, which was therefore violated along with article 37 (d) of the CRC and rule 10.2 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). The WGAD further noted that during the aforementioned period, Kameel did not have access to a lawyer nor could he contact his family. Such restrictions, along with the fact that he was not brought promptly before a judge, effectively hindered Kameel from determining the legal basis for his deprivation of liberty, and are therefore in violation of his right to an effective remedy enshrined in Article 8 of the UDHR and Article 2(3) of the ICCPR.

Given the Government’s failure to address allegations of enforced disappearance, and in light of the information it received from ADHRB, the WGAD determined that there is credible reason to believe that Kameel was indeed forcibly disappeared and thus placed outside the protection of the law in violation of Articles 9, 14, and 16 of the ICCPR; Article 37(b) of the CRC; and Article 6 of the UDHR. Additionally, because the authorities failed to establish a legal basis for Kameel’s arrest and blocked him from challenging it, the WGAD concluded that his deprivation of liberty is arbitrary under Category I.

The WGAD asserted that Kameel did not have access to legal representation during key stages of his detention, namely during the interrogation and investigation period and during the pre-trial process, including his visit to the PPO. In fact, the proceedings against him continued despite delays in getting a lawyer, due to problems with the transfer of power of attorney. As such, his rights to adequate time and facilities to prepare his defense and to prompt access to legal, and other, assistance of his choosing, enshrined under Article 14(3)(b) of the ICCPR and Articles 37(d) and 40(2)(b)(ii), have been violated.

The Government, on whom the burden of proof falls, failed to prove that Kameel made his statements freely. Kameel reported that he was forced to sign pre-prepared records which he was not allowed to read, in the absence of his lawyer. Confessions made in the absence of a lawyer are not admissible evidence in criminal proceedings,[2] and the recognition of statements obtained by way of torture as evidence renders the entire proceedings unfair.[3] Consequently, the WGAD has determined that Kameel’s right to the presumption of innocence, under Article 14(2) of the ICCPR and Article 40(2)(b)(i) of the CRC, and his right not to be compelled to confess guilt, enshrined in Article 13(3)(g) of the ICCPR and Article 40(2)(b)(iv) of the CRC, were both violated. Moreover, the authorities’ use of psychological and physical pressure to force Kameel to confess violates Bahrain’s obligations under Articles 2, 15, and 16 of the CAT. Given the gravity of the violations of Kameel’s fair trial rights, especially the lack of access to legal representation and his forced confession, the Working Group concluded that his detention falls under Category III deprivation of liberty.

Finally, the WGAD also characterized Kameel’s detention as arbitrary under Category V, more precisely as discriminatory on the basis of birth and family ties. The Working Group affirmed that his arrest was conducted as an act of reprisal against his mother for her political activism and criticisms of the Bahraini government, which failed to address these allegations in its response:

The Working Group is convinced that Mr. Hasan’s detention was the result of his mother’s activism and her actions in speaking out against the Government. In reaching this conclusion, the Working Group has taken into account the source’s allegation, which was not addressed by the Government, that the authorities asked Mr. Hasan questions during his interrogation relating to his mother’s political activity and whether his mother was still writing to organizations or to the media Rather, it appears that Mr. Hasan’s prosecution and imprisonment have been taken in retribution against his mother for the exercise of her right to freedom of opinion and expression.

“The Opinion of the Working Group reflects that the Bahraini government needs to end its widespread and systemic practices of human rights violations before they even constitute crimes against humanity,” says Husain Abdulla, Executive Director of ADHRB. “The case of Kameel is among hundreds of cases that are presented to different United Nations Special Procedures Offices over the years and is an example of what political prisoners, prisoners of conscience, and imprisoned minors are subjected to as retribution and torture simply because of their political opposition. The Bahraini government, as a member of the Human Rights Council, should allow the Working Group to visit Bahrain in addition to immediately and unconditionally releasing Kameel and all political prisoners.”

ADHRB echoes the calls of the WGAD in urging the Government of Bahrain to take the necessary steps to release  Kameel without delay; to open independent and impartial investigations into the numerous violations of international human rights law that he has suffered at the hands of the authorities; and to provide Kameel with compensation for these violations. Furthermore, ADHRB supports the commentary by the WGAD on the right to challenge the legality of detention before a court, the right to a fair trial, and the right to freedom of opinion and expression. Finally, ADHRB welcomes the call of the WGAD to visit Bahrain and hopes that the Working Group receives a positive response to its January 2017  request to visit.

[1] Human Rights Committee, General comment No. 35, para. 33; Opinion Nos. 73/2019, para. 82; 14/2015, para. 29.

[2] CRC/C/BHR/CO/4-6, paras. 43-44; Committee on the Rights of the Child, General comment No. 24, paras. 15-18; Beijing Rules, rule 11.

[3] Opinion Nos. 59/2019, 52/2018, 34/2015, 43/2012.