NGO calls on ECtHR to intervene in military commissions case of Al Nashiri

The Open Society Justice Initiative is calling on the European Court of Human Rights to intervene urgently in the first death penalty case to be tried by US military commissions at Guantánamo Bay, Cuba, involving Abd al-Rahim al-Nashiri.

In an application to the Court, OSI argues that Poland violated al-Nashiri’s rights under articles 2, 3 and 6 of the ECHR by enabling al-Nashiri’s incommunicado detention and torture on Polish soil and his transfer out of the country, and that the President of the Court should exercise his power to grant interim relief under Rule 39 by indicating to the Government of Poland that it should immediately use all available means at its disposal to ensure that Al Nashiri is not subjected to the death penalty.

These means include but are not limited to: (i) making written submissions before 30 June 2011 to Bruce MacDonald, the Convening Authority for Military Commissions, to ensure that he does not approve the death penalty for Mr. al Nashiri‘s case; (ii) obtaining diplomatic assurances from the United States Government that it will not subject Mr. al Nashiri to the death penalty; (iii) taking all possible steps to establish contact with Mr. al Nashiri in Guantánamo Bay, including by sending delegates to meet with him to monitor his treatment and ensure that the status quo is preserved in his case; and (iv) retaining and bearing the costs of lawyers authorised and admitted to practice in relevant jurisdictions in order to take all necessary action to protect Mr. al Nashiri‘s rights while in U.S. custody including in military, criminal or other proceedings involving his case.

Bruce MacDonald, the Convening Authority for U.S. military commissions, has said he will consider written submissions against the death penalty until June 30, 2011, following which he will make a decision on whether to approve capital charges and refer them for trial to a military commission.

On 20 April 2011, United States military commissions prosecutors brought charges against Mr. al Nashiri relating to his alleged role in the attack on the USS Cole in 2000 and the attack on the French civilian oil tanker MV Limburg in the Gulf of Aden in 2002.

UK’s review of counter-terrorism and security powers

The redacted review considered six key counter-terrorism and security powers:

  • The detention of terrorist suspects before charge, including how we can reduce the period of detention below 28 days
  • Section 44 stop and search powers and the use of terrorism legislation in relation to photography
  • The use of the Regulation of Investigatory Powers Act 2000 (RIPA) by local authorities and access to communications data more generally
  • Measures to deal with organisations that promote hatred or violence
  • Extending the use of ‘Deportation with Assurances’ in a manner that is consistent with our legal and human rights obligations
  • Control orders (including alternatives)

The review found that in some areas the UK’s counter-terrorism and security powers were “neither proportionate nor necessary”. It proposed:

  • A return to 14 days as the standard maximum period that a terrorist suspect can be detained before they are charged or released
  • An end to the indiscriminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000
  • The end to the use of the most intrusive RIPA powers by local authorities to investigate low level offences and a requirement that applications by local authorities to use any RIPA techniques are approved by a magistrate
  • A commitment to rationalise the legal bases by which communications data can be acquired and, as far as possible, to limit that to RIPA
  • A stronger effort to deport foreign nationals involved in terrorist activities in this country fully respecting our human rights obligations
  • The end of control orders and their replacement with a less intrusive and more focused regime. Additional resources will be provided to the police and security agencies to ensure the new measures are effective not only in protecting the public but in facilitating prosecution

A new version of the Government’s counter terrorist strategy, CONTEST, will be published within a few months.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

Rights group warns Australia detainee transfer program may violate international law

[JURIST] Australia’s new Afghan detainee transfer policy may violate international human rights laws, Amnesty International warned Tuesday. The new detainee management system, announced Tuesday by Australian Minister of Defence Stephen Smith, provides for the systematic transfer of “high risk” detainees to US forces and “low risk” detainees to Afghan forces. According to AI Asia-Pacific director Sam Zarifi, the new policy puts detainees at risk of torture and mistreatment at the hands of the National Directorate of Security (NDS), which has been previously linked to human rights abuses.

“By handing over detainees to the NDS, where they are at risk of torture or other ill-treatment, Australia could be in violation of its international obligations to protect individuals from such treatment,” Zarifi said. Until August of this year, any detainees apprehended by the Australian Defence Force (ADF) had been the responsibility of Dutch forces that, according to AI, had “safeguards” in place to assure detainees would not be mistreated.

Cable shows that US doesn’t believe diplomatic assurances worked with Tunisia

In cable 08TUNIS1137 of November 2008 the US embassy indicated that it did not believe anymore that assurances from the Tunisian government, and even from the President, that it would not mistreat detainees upon return would offer real protection to the detainees. The cable explains how the assurances were given:

From late 2006 to mid-2007, the US Government received a variety of assurances from the GOT regarding the transfer of Tunisian detainees at Guantanamo. In November 2006, the Ministers of Justice and Interior offered oral assurances about Tunisia’s obligations under the Convention Against Torture and noted to an interagency delegation led by S/WCI Ambassador Williamson that many of the detainees faced in absentia charges. The Minister of Justice also provided oral assurances about third party access (i.e., the ICRC) to detainees in the Tunisian prison system. In 2007, Minister of State and Presidential Advisor Ben Dhia confirmed these assurances to the Ambassador and subsequently reiterated them in a letter to Deputy Secretary of State Negroponte. The exchanges paved the way for the June 2007 transfer of the first two detainees to GOT custody.

Following the transfer, NGOs alleged that the two detainees, Abdallah Ben Omar (al-Hajji) and Lotfi Ben Swei Lagha, had been tortured and mistreated by GOT security forces. As a result of the allegations, the Ambassador demarched Foreign Minister Abdallah, Minister of Interior Belhaj Kacem and Presidential Advisor Ben Dhia regarding GOT assurances. (Note: The GOT declined to facilitate a meeting for the Ambassador with Minister of Justice Tekkari. End note.) All reiterated that Tunisia is a signatory of the Convention Against Torture (CAT) and would respect it. Abdallah and Kacem dismissed the allegations of torture. To our knowledge, there was no GOT investigation into reports of the detainees’ mistreatment. Further, the ministers did not indicate that any future transfers will be handled differently to avoid such accusations. 4. (S/NF) Ben Omar’s lawyer (the source of these NGO reports) later clarified that, while Ben Omar was mistreated (slapped) and threatened (that he and his family members would be raped), he was not “tortured.” Post received reports that Ben Omar has been subject to psychological mistreatment, including most recently on September 8 when Emboffs met with his family. Our assessment remains that these claims of mistreatment are credible. According to the same lawyer, who represents both detainees, and his own brother, Ben Swei Lagha has not been subject to any mistreatment although he was reportedly held in solitary confinement for weeks after his transfer.

The embassy gives the following comment:

Despite the early GOT commitments, it is likely that Ben Omar was mistreated. While GOT officials deny the reports, this is clear: in no case has a GOT official acknowledged that if Ben Omar had been threatened or slapped it would have been wrong. Indeed, the most frequent response has been to emphasize that the detainees deserve to be in prison. Given this, and despite Ben Ali’s statements, we believe future transferees are likely to face treatment similar to the first two. — Finally, we have obtained all we can from the GOT by way of assurances on the treatment of transferees. In recent exchanges, GOT officials are increasingly testy and difficult. The risk of a counterproductive response is growing. We are at the end of the road on Tunisian assurances. Now we must decide whether to transfer more detainees or seek another course.

UK Independent Reviewer of Terrorism’s Annual report 2009 offers alternative approach for stop and search powers

In his last report as Independent Reviewer of the Terrorism Act 2000, Lord Carlile made some comments as as to how the future reviewer might best discharge his/her role in the future. The report comes after the 2010 election on purpose:

I have done this in order to be able to reflect upon declared or likely changes of policy as a result of the change of government. In that context, although this is not a report on the control orders system, it may be helpful to say that nothing I have seen or heard during or following the election campaign has led me to change my repeatedly expressed views – that control orders are an unwelcome but appropriate means of addressing a small number of cases. No viable alternative has been suggested for this very small group of terrorism suspects.

On diplomatic assurances:

In my view more could be done to persuade home countries of the importance of ensuring that returnees are treated in accordance with ECHR standards; and to ensure that case-specific, credible, realistic and verifiable evidence to support return is placed before the Courts. It is not acceptable for large numbers of persons to remain in the UK when their presence is contrary to the national interest and national security. I believe that a more imaginative approach to these cases is required, probably based on a partnership between the Home Office, the Foreign and Commonwealth Office, and independent non-governmental agencies commanding the confidence of the other countries concerned.

On trials:

Plea agreements, and the obtaining from defendants of information useful in preventing and detecting terrorism, should be encouraged – in some cases by substantial discounts from sentences that otherwise would be served.

On the torture inquiry Carlile seems to supports the UK government view:

The new UK government has promised a judge-led inquiry into these matters. Presumably that inquiry will follow the completion of the police investigation and any ensuing prosecution: it would be unrealistic to have police and judicial inquiries running in tandem.

On stop and search powers

If there is a single issue that can be identified as giving rise to most assertions of excessive and disproportionate police action, it is the use of section 44. As I have reported repeatedly, difficult problems arise in connection with the utilisation of section 44 by police around the country. The inconsistency of approach among chief officers as to why, and if so when, section 44 should be available was less pronounced during 2009, but remains. The section, which permits stopping and searching for terrorism material without suspicion, rightly is perceived as a significant intrusion into personal liberties.

Although the UK government is seeking permission to appeal Gillan to the Grand Chamber of the ECtHR, preparations should be made for the potential failure of that appeal. I would go further. In my view the judgment already given has illustrated the excessive nature and use of section 44. Given the clearly expressed policies of the coalition partners prior to the 2010 General Election, I suggest that the time has arrived for the section to be repealed, and replaced by a more limited provision to deal with three broad sets of circumstances, These are:
(a) counter-terrorism operations such as searches, arrests and some surveillance situations;
(b) some iconic events where there is security services advice of heightened threat or risk;
(c) a closed (i.e. secret), regularly reviewed and unexaggerated list of true critical national infrastructure sites.

On the UK domestic listing:

I believe that there is general public acceptance that the proscription of organisations prepared to use or encourage terrorism is proportionate and necessary.

I would urge the new Government to pursue an evidence-based examination of currently proscribed organisations: the utility of proscription must always be balanced against the freedoms of speech and association.

Nowak and Scheinin urge US to ensure no forcible return of Guantanamo detainees

The UN Special Rapporteurs on Torture, Manfred Nowak, and on the Protection of Human Rights while Countering Terrorism, Martin Scheinin, have called on the US Government to ensure that it does not forcibly return anyone to another State where the person could be subject to torture.

While welcoming US efforts to close Guantanamo Bay detention facility, the two experts  expressed their concern for two recent decisions by the US Supreme Court, which paved the way for the transfer of two Algerian detainees held in Guantánamo.

“We are extremely worried that the lives of two Algerian detainees could be put in danger without a proper assessment of the risks they could face if returned against their will to their country of origin,” the experts stated in a news release.

One of the two men in question, Abdul Aziz Naji, has already been repatriated to Algeria, according to media reports. He was among a group of six Algerian nationals held in Guantánamo, who feared that, if returned to Algeria, they could be subject to torture or other forms of ill-treatment by the security services or non-State actors.

“Diplomatic assurances are unreliable or difficult to monitor and cannot substitute the sending country’s obligation to assess the real risk facing the individual,” said the experts, who added that this could become the first involuntary transfers of Guantánamo detainees of the Obama administration.