UN WGAD warns that Systemic Deprivation of Liberty in Bahrain may constitute Crimes against Humanity

The United Nations Working Group on Arbitrary Detention (WGAD) published on its website their Opinion from 20 July 2022 concerning five young Bahraini citizens sentenced in an unfair mass trial known as the Soleimani Cell Case. The Working Group found that the individuals were arbitrarily arrested in violation of international human rights law. These five individuals are part of a group of 18 defendants tried by the Bahraini High Criminal Court on 31 January 2021. The WGAD called on the Bahraini government to take immediate measures which include releasing the prisoners. 

As a matter of practice, Americans for Democracy & Human Rights in Bahrain (ADHRB) regularly receives information from Bahraini individuals and employs their accounts as key evidence in submitted complaints by the United Nations (UN). ADHRB welcomes this Opinion by the UN and urges the Bahraini authorities to follow the recommendations without delay.

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 detentions. 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 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 opinion, gender, sexual orientation, disability, or any other status (Category V).

The individuals involved in this case are Ali Naser Ahmed Naser, Ali Hasan Mansoor Yusuf Marzooq AlJamri, Ali Mohamed Hasan Ali Husain, Sayed Redha Baqer Mahdi Mohsen Fadhul, and Sayed Falah Hasan Naser Mohsen Fadhul. The WGAD found that all individuals involved suffered illegal human rights violations. 

The five individuals, three of whom are minors, were all arrested on 16 January 2022 and taken to the Criminal Investigations Directorate (CID) for interrogations which lasted for 27 days up to a month. The alleged violations include arrests without a warrant, enforced disappearance, and torture. All individuals were subjected to enforced disappearance, during which they were interrogated and tortured; the torture was physical and psychological, ranging from beatings, slapping, and electric shocks to blindfolding, threats of further violence, and deprivation of sleep. Some of the victims refused to disclose much details of their torture for the sake of their families’ feelings, and all but one of them (Sayed Falah Hasan Fadhul) ended up confessing, though other individuals’ forced confessions were used to convict him. 

The individuals were all interrogated without the presence of their lawyers, whom they did not have access to at any time before the trial proceedings. During trial, two of the victims (Ali Naser Naser and Sayed Falah Hasan Fadhul) could not communicate with their lawyer, while Sayed Redha Baqer Fadhul’s lawyer was not allowed to respond during court sessions and could only submit notes. None of the victims present before the court were permitted to provide evidence or speak in their own defense and challenge evidence against them. The court evoked the coerced confessions and disregarded the victims’ denial of the charges against them. 

Since the court classified the defendants and their activities as terrorist, and despite their young age, the court was able to rely on Law No. 58 on protecting society from terrorist acts, rather than the Bahraini Penal Code. The significance of this is that the former’s penalties are harsher than the latter. The Human Rights Committee has found this law to include an overly broad definition of terrorism, and the WGAD asserted that the provision is overly vague. 

On 31 January 2021, the Bahraini High Criminal Court convicted all five individuals of joining a group or organization for the purpose of disrupting the law or violating rights and freedoms. Four of them were also convicted of providing or receiving support and funding for an organization that practices terrorism. Only one individual was convicted of training to use weapons and explosives with the intention of committing terrorist crimes. The prison sentences varied between 5 and 15 years. While most of the alleged crimes were committed between 2017 and 2019, the terrorist group which the victims were convicted of being a part of was allegedly focused on avenging the 2020 assassination of Iranian General Qasem Soleimani.

While the government has insisted that lawful procedures have been followed, the Working Group contends that since a prima facie case for breach of international law constituting arbitrary detention has been established, the burden of proof falls upon the government to refute these allegations. Thus, the government’s assertion that an arrest warrant was issued does not meet the obligation of presenting the warrant at the time of arrest, especially considering the systemic failure in Bahrain of complying with arrest procedures, which was noted by the WGAD. Since the warrants were not presented and the reasons behind the arrest were not indicated, Bahraini authorities did not establish a legal basis for the arrest of the five victims.   

Furthermore, four of the victims were not allowed to contact their family and thus their location remained unknown. The government has denied any enforced disappearance, without substantiating these assertions to refute the allegations. The Working Group was consequently inclined to consider this as enforced disappearance, referring the case to the Working Group on Enforced or Involuntary Disappearances. Similarly, the government did not provide any counter evidence to the claim that the individuals were held incommunicado at the initial stage of their detention, meaning they could not challenge their detention, a violation of Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR). 

The WGAD noted with concern the delay in presenting the victims before a judge, especially in the cases of minors Ali Hasan AlJamri, Sayed Falah Hasan Fadhul, and Sayed Redha Baqer Fadhul, who, as minors, are subject to a strict standard of promptness obliging authorities to present them before the court within 24 hours of their arrest. The government provided no justification for this violation of Article 9(3) of the ICCPR and Article 37(d) of the Convention on the Rights of the Child (CRC). As a result of these violations as well as the use of the overly broad terrorism law, the government failed to establish a legal basis for the detention of all five individuals, whom the WGAD found to be arbitrarily detained under Category I. 

While the government has denied the allegations of torture which these victims were subjected to, claiming to have adhered to international standards, the WGAD found their claim unconvincing and deemed the allegations of torture credible and in violation of Article 5 of the Universal Declaration, Article 7 of the ICCPR, and Articles 2 and 16 of the Convention Against Torture. The Working Group noted that the use of force on a child, in the case of these three minors, is an extremely serious abuse of power, in violation of Article 37 of the CRC, and called for a thorough and independent investigation into all torture allegations.  Additionally, finding the allegations of coerced confession to be credible, the Working Group referred the case to the Special Rapporteur on Torture.

With respect to the right of access to legal counsel, the Working Group recalled that all persons deprived of their liberty have the right to legal assistance by counsel of their choice at any time during their detention, including immediately after apprehension. As such, it found that the government failed to guarantee the five individuals’ right to legal assistance at all times in accordance with Articles 9 and 14 of the ICCPR, as the victims were denied access to their lawyer at various points of their interrogation, detention, and trial. The Working Group raised concern over the fact that this violation has substantially undermined and compromised all individuals’ capacity to defend themselves in any subsequent judicial proceedings. Moreover, the Working Group emphasized that mass trials do not meet the standards of fair trial since it is impossible during such proceedings to conduct a specific assessment of individual responsibility. Thus, the WGAD found that the following violations to the victims’ fair trial rights rendered their detention arbitrary, falling under Category III.

Finally, the Working Group found Sayed Falah Hasan Fadhul and Ali Naser Naser to be arbitrarily detained under Category V. Pictures of Sayed Falah Fadhul’s participation in protests from more than nine years ago were presented as evidence by the prosecution, and Ali Naser Naser has previously been arrested for participating in peaceful assemblies around the home of his grandfather, a prominent religious figure in Bahrain. Therefore, their expression of their political opinion has been a reason for their conviction in the unrelated case, a claim the government did not provide an explanation to. 

The Working Group concluded by expressing its concern over the health conditions of the prisoners and has called on the government to immediately release all five individuals, raising further concern regarding the many cases of arbitrary detention in Bahrain and noting that the widespread or systematic deprivation of liberty, in violation of rules of international law, may constitute crimes against humanity. The WGAD also stressed the importance of allowing the prisoners to contact their families – even though the government has denied allegations they restricted the prisoners’ access to their family – as a reminder of the government’s legal responsibility. The Working Group also highlighted that three of the prisoners were minors who received harsh sentences instead of the government focusing on reintegrating them. The Working Group conveyed its readiness to visit Bahrain and to engage constructively with the government.

ADHRB fully supports the WGAD’s recommendations and echoes its calls to release the five individuals immediately and provide them with appropriate compensation in accordance with international law. ADHRB additionally echoes the Working Group’s demands for a full and independent investigation into the circumstances surrounding the arbitrary deprivation of liberty of the five victims in order for appropriate measures to be taken against those responsible for the violation of their rights.