The EU’s legal and moral obligation to protect its citizens in Bahrain: the story of two HRDs

The founding principles of the European Union (EU) are “human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” In 2012, the EU adopted its strategic framework on Human rights and Democracy, this has resulted in a more coordinated and effective engagement with and in third countries. The framework defines the principles, objectives, and priorities for improving the effectiveness and consistency of EU policy. This includes the mainstreaming of human rights into all EU policies as a “silver thread,” and adopting a more tailored approach to both internal and external policies.

ADHRB welcomes the latest development of the European Parliament, namely its adoption of Resolution 2578 titled “The human rights situation in the Kingdom of Bahrain, in particular the cases of death row inmates and human rights defenders.” However, this is not enough. To meet the expected outcome of this Resolution, the EU needs to use all possible means to demonstrate that it will not tolerate the current status quo of human rights abuses in Bahrain.

However, much remains to be done so every human being can enjoy their fundamental rights. The EU’s longstanding commitment to human rights and democracy must be translated into a renewed operational agenda for preserving the EU’s image and credibility as a normative power based on democratic values.

Prohibition of  Torture in International Law

Sheikh al-Miqdad and Mr Al-Khawaja, both prominent human rights defenders and dual Bahraini-EU citizens, were subjected to severe torture and ill-treatment both during and after their arrest, which is in direct contravention of several significant human rights treaties. Torture is recognised as one of the most serious human rights violations and considered to be a jus cogens norm, meaning it is absolute and non-derogable under international law.

The prohibition on torture is outlined in cornerstone declarations of international human rights law, namely, the 1948 Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  As a State Party to each of these treaties, Bahrain is violating multiple instruments of international human rights law. Bahrain has also prohibited torture in its own Penal Code.

Legal Obligation of the EU to Protect its Citizens

The EU is legally obligated to protect its citizens by Article 46 of the European Union Charter of Fundamental Rights (CFR) which upholds that every EU citizen is entitled to protection in the territory of a third country where he or she is not represented.

Diplomatic or consular protection is derived from any Member State and is provided for on the same conditions as the nationals of that Member State. The same conditions are provided for in the European Commission’s Green Paper on “Diplomatic and  Consular Protection of Union Citizens in Third Countries.” The European Convention on Human Rights (ECHR) does not stipulate an explicit right to diplomatic protection. However, the European Court of Human Rights (ECtHR) has established the Convention’s extraterritorial application with respect to Article 1 of the ECHR. The right to diplomatic protection is connected to the protection of violated human rights. The Member States, therefore, must protect citizens outside their territory, which was recognized in, for example, Al-Skeini and others v. The UK.

Mr Al-Khawaja has dual Bahraini-Danish citizenship whilst Sheikh Al-Miqdad has Bahraini-Swedish nationality. This poses the issue of whether the EU has an obligation under general international law and/or European Union law to protect its citizens who hold dual nationality. These are just two of the numerous individuals whose courage has been met with abuse and life imprisonment. In these cases, the EU has failed to observe its TEU Article 3(5) obligation, which specifies, “in its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens.” ADHRB believes Denmark and Sweden have also failed in their duties to their citizens.

It was in the significant case of Nottebohm which the International Court of Justice (ICJ) first established the standard of “effective nationality.” By this, the Court meant that diplomatic protection can be granted to a natural person where there is a genuine link between the State and the person at hand. The meaning of “diplomatic protection” is defined by the International Law Commission (ILC) Draft Articles on Diplomatic Protection 2006 as:

‘The invocation by a State, through diplomatic action or other peaceful means, of the responsibility of another State for an injury caused by an internationally wrongful act to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.’

As stated above, Sheikh al-Miqdad and Mr Al-Khawaja both hold dual-citizenship, which can indeed result in limitations to this right. Article 4 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930 states, “A State may not afford diplomatic protection to one of its nationals against another State whose nationality such person also possesses.” However, Article 5 of the Hague Convention is more lenient and stipulates that the defendant State is in practice incapable of rejecting the protection offered by the other State of which the claimant is a dual-national.

Whether a State has an international obligation to invoke diplomatic protection remains unclear. Article 7 of the ILC Articles stipulates the State of nationality may exercise diplomatic protection in respect of a person against another State for which the person is also a national if the former State’s nationality is predominant throughout the date of injury and during the official presentation of the claim. This article highlights the possibility of both the Swedish and Danish governments invoking al-Miqdad’s and al-Khawaja’s nationalities despite Bahrain’s refusal to recognize these claims. Moreover, this rule has been confirmed by the Iran-United States Claims Tribunal that allows for claims provided that the dominant and effective nationality was not that of the defendant State.

One vital aspect that the ILC left out in their final version of the Draft Articles is as to whether a violation of a jus cogens rule should entail an international obligation to invoke diplomatic protection. Jus cogens norms characterize fundamental rules under international law from which no State can derogate, such as the prohibition on torture. The proposal has been supported by some States in the commentaries of the ILC Articles, stating “give due consideration to the possibility of exercising diplomatic protection, especially where a significant injury has occurred.”

It is essential to emphasize the non-legal nature of this comment, nonetheless, it leans toward a more favorable position for the individual. The ILC Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA) sets out the standards of responsibility for a State for conducting a wrongful act. Article 48 of ARSIWA stipulates the invocation of international responsibility in situations where a serious breach of a peremptory norm that is “owed to the international community as a whole” has been violated.

Diplomatic protection and ARSIWA are two separate mechanisms, and, as stated earlier, there is no explicit international obligation to enforce diplomatic protection in times of a jus cogens obligation. However, ARSIWA Article 48 is an erga omnes obligation, meaning that it is an obligation upon the international community as a whole. Both diplomatic protection and invocation of responsibility erga omnes can, and should, therefore be invoked for the protection of individuals.

Denmark and Sweden strongly supported the approach of the ILC in Draft Article 7. Although not binding, Article 7 reflects CIL. In the case of multiple nationalities, the State of nationality that is “predominant” both at the time of the injury and at the date of the official presentation of the claim should be entitled to exercise diplomatic protection against another State of the nationality of the person concerned. In the views of Denmark and Sweden, Draft Article 7 constitutes a codification of existing CIL. It should be added that this rule has no bearing on possibilities to provide consular assistance, which are not governed by the law pertaining to diplomatic protection.

The ILC did not provide a clear list of factors that needs to be satisfied to determine a predominant nationality, but it is safe to believe that it is applicable in the cases of Sheikh Al-Miqdad and Mr Al-Khawaja. Given the laws provided above, and Denmark and Sweden’s progressive approaches to Article 7 of the ILC Draft Articles on Diplomatic Protection, we believe that Denmark and Sweden have an obligation to provide diplomatic protection to their own citizens, something they have failed to do.

Along with offering diplomatic protection to their imprisoned citizens, ADHRB believes that the newly enacted EU Magnitsky Sanctions Regime provides a perfect opportunity for the EU to take a firm stance toward the Bahraini regime. As a practical measure, the EU should impose sanctions via the Magnitsky Act. Moreover, every single of the 27 member states should use bilateral relations to express their deep concerns about the oppressive regime in Bahrain.

Allowing impunity in a small country such as Bahrain sends a message to more powerful States that violations of their legal obligations under international human rights law will remain unpunished. This undermines the international legal system and the many norms and values to which it aspires. We must see action taken in Bahrain.