“This bill will be the last one. The first and the last one.” That is how Emmanuel Macron answered the question I had just asked him: “What would happen, Mr. President, if France were hit by another terrorist attack in the coming months? Would you propose yet another bill?”

French police and anti-crime brigade (BAC) members secure a street as they carried out a counter-terrorism swoop at different locations in Argenteuil, a suburb north of Paris, France, July 21, 2016. 

© 2016 Reuters/Charles Platiau

The exchange took place last Friday, in the late afternoon. I was in the Elysée as part of a delegation of leading human rights organizations, lawyers and magistrates to meet President Macron and two of his advisors. We had come to express our concerns and criticisms of two bills drafted by the government and submitted to Parliament: a sixth extension of the state of emergency until November, and a counterterrorism bill directly inspired by the provisions of the state of emergency. This bill would make permanent special powers which were supposed to be temporary, introduced as necessary only for the extraordinary circumstances of a time-limited state of emergency.

For over an hour and a half, we set out methodically the abuses committed against ordinary citizens when those powers were used under the state of emergency. We warned the President that the counterterrorism bill would entrench what were exceptional powers into regular law and pose grave dangers for fundamental rights and the rule of law. We denounced the lack of evaluation of the effectiveness of state of emergency measures and of the existing legal arsenal for counterterrorism. We lamented the choice of an accelerated procedure for the parliamentary review of these two proposed bills, depriving the country of what ought to be a meaningful democratic debate about the concept of liberty, one of France’s founding values.

But despite this discussion, President Macron did not waver.

Far from reinforcing freedoms, as the President claimed this past Monday in his speech to Parliament, the new bill would entrench in regular law abusive powers introduced under the state of emergency. It would normalize the considerable powers awarded by the state of emergency to the Ministry of the Interior and the administrative police. The drastic weakening of judicial safeguards, which are the foundation of the rule of law and an essential defense against abuse, would become permanent. In effect it treats France as if it is always in a state of emergency. By authorizing “assigned residence orders”, whereby individuals’ freedom of movement is severely limited even though they have not been accused of a crime, this new bill also confirms a dangerous shift towards so-called preventive justice. Just this week we’ve learned that since the state of emergency was declared in November 2015, there have been 708 assigned residence orders. More than one a day. This is a trend, not a small set of isolated actions. The “logic of suspicion”, on which these orders are predicated, opens the door to significant abuse.

During the meeting, the President admitted that the state of emergency can foster “arbitrary behaviors” and has led to « excesses ». Emmanuel Macron, then a candidate, had himself expressed in his book, Revolution “that reducing the freedoms of all, and the dignity of each citizen, has never anywhere led to an increase in security.” Despite that, Emmanuel Macron chose to follow in the footsteps of governments that, over the last two decades, have responded to the threat of terrorism with ever harsher laws, turning France into the country with the most expansive counterterrorism laws in Europe. Members of Parliament, a large majority of whom are supportive of the President, will most likely adopt the bill without much opposition. Macron may well say this is his “first and last law” on security; but recent history in France and elsewhere teaches us that once states start down this legislative slope, more repressive laws follow.

If we refer to the past 18 months, France may well be addicted to emergency powers. As a responsible leader, however, the French President’s job is to break that dependency and resist the temptation to react to the fear of another attack with laws that do more harm to rights than they do good to security. As activists, lawyers, and voices of civil society, that is what we will keep telling the President and our elected representatives. End the state of emergency, don’t simply inject a dose of it into ordinary law. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

French soldiers from Operation Barkhane stand outside their armored personnel carrier during a sandstorm in Inat, Mali, May 26, 2016.

© 2016 Reuters
“The jihadists are the law now,” an elder from central Mali told me. “The very day the French-supported operation finished, the Islamists were back in the villages,” confided another villager last week, referring to a military operation near the Mali-Burkina Faso border in April.

The endurance of the jihadist recruitment success and their appeal to many villagers suggests that military operations on their own will not be sufficient to defeat the threat. President Emmanuel Macron should keep this in mind when he visits the country this Friday.

Hailed as a military success, the 2013 French-led military intervention in northern Mali ended the region’s occupation by ethnic Tuareg separatists and armed Islamists linked to Al-Qaeda. But since 2015, attacks against Malian forces and abuses by Al-Qaeda-linked groups have moved southward to Mali’s previously stable central regions and, last year, spread into neighboring Burkina Faso.

Since 2015, I’ve interviewed scores of witnesses and victims to abuses in central Mali. They described how, in recent months, groups of up to 50 Islamist fighters closed down schools, banned women from riding on motorcycles driven by men other than their husbands, and imposed their version of Sharia (Islamic law). “We used to spend days celebrating a marriage or baptism, dancing and singing together,” one man said. “Not anymore.”

Men accused of being informants for the Malian government often turn up dead. Since 2015, Islamists have executed at least 40 men in their custody, including village chiefs and local officials. Some were murdered in front of their families. Several people said they felt pressured to send one of their sons to join the Islamists.

However, an equal number of villagers told me they welcomed the presence of the Islamist groups in central Mali; they saw them as a benevolent alternative to a state they associate with predatory and abusive governance. Many seethed as they described Malian army abuses during counterterrorism operations, including arbitrary arrests, torture, and executions.

Since late 2016, I have documented the alleged extrajudicial killing by soldiers of 12 detainees, the most recent in early May, and the forced disappearance of several others. Villagers described how soldiers detained and executed three family members in January. “We heard gunshots in the distance,” one witness said. “I followed the tracks of the army truck and found our people in a shallow grave.” This week, I received a desperate email from the brother of a man forced into a white pickup by men in uniform on February 3. “We have heard nothing; we have searched everywhere,” he said.

While the behavior of the state security services has improved in recent years, Malian authorities have made no meaningful  effort to investigate those implicated in violations.

The jihadists speak a lot about corruption… how the authorities steal, torture and do bad things to us. Honestly, they don’t need to try very hard to recruit the youth.

Villagers said the Islamists are recruiting by exploiting frustrations over poverty, abusive security services, rampant banditry, local Peuhl clan rivalries, and, especially, corruption.

“The jihadists speak a lot about corruption… how the authorities steal, torture and do bad things to us,” one elder said. “Honestly, they don’t need to try very hard to recruit the youth…”

Villagers also said the Islamists are increasingly filling the governance vacuum. They welcomed Islamist efforts to investigate and punish livestock thieves, including by executions. Others praised Sharia rulings in favor of victims of domestic violence or spousal abandonment. Elders from both the sedentary Bambara and pastoral Peuhl communities credited the Islamists’ efforts in late 2016 to resolve deadly land disputes. This meaningfully reduced communal violence in some regions, they said.

“We are fed up with paying bribes every time you meet a man in uniform or government official,” one villager said. “The Islamists get all this done without asking for taxes, money, or one of our cows.”

It was corruption, poor governance, and abusive security force conduct that significantly contributed  to Mali’s spectacular collapse in 2012. The burden to resolve this situation lies first and foremost with the Malian government. But the French strategy in Mali and the wider Sahel won’t succeed without helping Mali to address the issues underlying decades of insecurity and the growing support for abusive armed Islamist groups. Military operations, including those supported by the French, are not enough to pull Mali from this deepening quagmire.

When President Macron visits Mali on Friday, he should urge the government to professionalize the security forces and hold them accountable, to support the chronically neglected judiciary, and to take concrete action against rampant corruption. Strengthening Mali’s weak rule of law institutions is complicated work, but no counterterrorism strategy can succeed without it.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Like an addict, France does not know how to quit its state of emergency even though it has become clear that maintaining it erodes the rule of law and fosters human rights abuses while not keeping the country safer. The February 22 report by the parliamentary commission tasked with monitoring the state of emergency provided yet another reminder that it no longer serves any meaningful purpose.

French police and anti-crime brigade (BAC) secure a street they carried out a counter-terrorism swoop at different locations in Argenteuil, a suburb north of Paris, France, July 21, 2016.

REUTERS/Charles Platiau

The commission president, Dominique Raimbourg, from the governing Socialist Party, noted that activity under the state of emergency has been “greatly reduced” since the last extension. His fellow commission member, Jean-Frédéric Poisson, from the main opposition party Les Republicains, noted that “time that passes erodes the efficiency and nature of the state of emergency.” A French commission of inquiry into the Paris attacks had already concluded back in July 2016 that  the state of emergency had “limited impact” on improving security and any effect it may have had “quickly dissipated.”

Human Rights Watch’s own research has found repeated abuses against ordinary people during policing operations under emergency powers.

So why is France maintaining the state of emergency despite repeated warnings by its own oversight mechanisms?

It is mainly due to confusion by politicians about the purpose of a state of emergency. Many have said that it is justified by an ongoing terrorist risk. This was clearly displayed in December 2016 when Interior Minister Bruno Le Roux justified his request for a fifth extension by saying that “the terrorist threat was at its highest.” Under this reasoning, a state of emergency is needed as long as there is a high security risk.

This reasoning is dangerous on many levels. By suggesting that regular laws, procedures, and oversight mechanisms are not sufficient to counter threats, it weakens the premise of the rule of law and relegates it to a luxury for “normal” times. But it also sets the stage for the trap in which France finds itself. French leaders have implied that they will only lift the state of emergency when the security risk has subsided but since they can’t predict the risk of future terrorist attacks, they prefer to maintain it rather than pay a political price if a subsequent attack takes place.

So lifting the state of emergency becomes less dependent on security considerations and more on political calculations. This would explain why France’s latest extension was driven by the electoral calendar, punting the issue to the next president and legislature. Call it political procrastination, or perhaps more aptly, political cowardice.

This disconnect between its initial purpose and current raison d’être was captured nicely by Sébastien Pietrasanta, a parliamentarian and rapporteur for the commission investigating the state’s response to the November 2015 attacks, who recently noted that “the effect of the state of emergency is fading and yet we extend it…even though the link with terrorism is quite tenuous.”

I have seen this logic at play in the Middle East. Egypt and Syria, countries I have worked on for years, maintained their states of emergency for 31 and 48 years respectively. Every time the state of emergency was up for renewal, the country’s rulers argued that the risk was still there or that the timing was not right to lift it. France is not a tin-pot autocracy and its rulers are not despots, but there is a cautionary tale in these experiences.

It is time to reframe the debate in France. A continuing state of emergency should not be dependent on the existence of risk – an exogenous measure that cannot be controlled by political calculations. It should be restricted to situations where there is an exceptional need for exceptional measures at an exceptional moment. It may have been justified for a few days immediately after the November 2015 attacks as the country’s security forces were caught unprepared. But it should have been lifted as soon as the institutions resumed their normal functioning – regardless of whether the underlying security threat has been addressed.

It is time to reframe the debate in France. A continuing state of emergency should not be dependent on the existence of risk, it should be restricted to situations where there is an exceptional need for exceptional measures at an exceptional moment.

Nadim Houry

Director, Terrorism and Counterterrorism Program

The French government’s own website on the fight against terrorism noted in August 2016 that the government has “completed its legal arsenal and put in place an unprecedented reinforcement of its means in the police, justice, army and intelligence services.” France already has a raft of laws under the non-emergency regime that permit the authorities to investigate, detain, and prosecute terrorism suspects. Judicial controls in no way impede their effectiveness.

France needs to adopt a clear path out of the state of emergency. The parliamentary commission monitoring the state of emergency suggested in December setting an upper limit on the extension of a state of emergency but parliament ignored it and voted a fifth extension with almost no debate. Candidates in the upcoming presidential election have largely avoided talking about the issue, perpetuating the procrastination strategy by the political class, and journalists have not pushed them on the issue.

It is no longer enough to wait and hope that the security threat will simply vanish or that the future president or legislature will finally decide to tackle the issue. The debate about lifting the state of emergency should become a priority topic in this presidential election. Like any addict hoping to recover, France needs to start by recognizing the problem and begin a serious conversation on how to quit.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

In this file photo, Egyptian security forces stand guard outside a court in Cairo, Egypt, January 3, 2018.

© Reuters

(Beirut) – Egyptian authorities are increasingly using counterterrorism and state-of-emergency laws and courts to unjustly prosecute journalists, activists, and critics for their peaceful criticism, Human Rights Watch said today.

These abusive practices and distortion of counterterrorism measures have taken place at the same time as Egypt was chairing one of the key United Nations committees to ensure compliance with counterterrorism resolutions and while the UN’s most senior counterterrorism official was visiting the country.

“While Egypt faces security threats, the government of President Abdel Fattah al-Sisi has exploited these threats cynically as a cover to prosecute peaceful critics and to revive the infamous Mubarak-era state security courts,” said Nadim Houry, terrorism/counterterrorism director at Human Rights Watch. “Egypt is combining a bad law with unjust courts and the outcome has been predictably disastrous, as al-Sisi’s Western allies look the other way.”

In the period before the March 2018 presidential elections, Egyptian police and National Security Agency forces carried out a wave of arrests of critics of al-Sisi. The crackdown continued after the election with the detention of prominent activists and journalists and their prosecution under Egypt’s 2015 counterterrorism law. The law criminalizes a wide range of acts, including publishing or promoting news about terrorism if it contradicts official statements.

Some cases have been transferred to the Emergency State Security Courts, a parallel judicial system operating since October 2017, under the state of emergency that the government claims is being used only against terrorists and drug traffickers. These courts do not guarantee a fair trial and their decisions are not subject to appeal. 

Human Rights Watch has documented the detention of scores of activists and journalists (see Annex) since 2015, when the new counterterrorism law was issued, who have been referred for prosecution under terrorism-related charges. In each case, the charges are apparently based on peaceful criticism or opposition to the authorities. Some of those prosecuted are affiliated with opposition parties and movements such as Strong Egypt Party and April 6 Youth Movement, while others are journalists and human rights activists.

Those recently arrested include a well-known blogger and rights defender, Wael Abbas. Security forces detained him on May 23, 2018, and kept him for almost 36 hours in an undisclosed location before taking him before prosecutors. Other recent detainees include Amal Fathy, a political activist and the wife of the head of the Egyptian Commission for Rights and Freedoms, a human rights organization, and Shady Abu Zaid, a comic known for a 2016 viral video in which he inflated condoms and handed them to security forces guarding Tahrir Square on the anniversary of the 2011 Egyptian revolution.

Authorities have referred these cases to Supreme State Security Prosecution, the branch of general prosecution that usually oversees terrorism cases. Lawyers are frequently prevented from accompanying their clients to interrogations. The prosecutors charged several activists under the counterterrorism law with “aiding a terrorist group in achieving its aims,” or “spreading false news,” or joining a “banned group” and referred them to Emergency State Security Courts.

Prosecutors indicted Abbas on claims that he was part of the “media wing of the Muslim Brotherhood,” the political group of the ousted elected President Mohamed Morsy. Several journalists and activists have been indicted in this case, case 441 of 2018, over the past weeks, including some who are actually critical of the Muslim Brotherhood.

Al-Sisi’s government, assisted by a mainstream media that Reporters Without Borders says is under increasing control of the intelligence services, has sought to portray a broad conspiracy against the security of Egypt that includes human rights and labor activists, members of the Muslim Brotherhood, journalists, and rights lawyers. In March 2018, the Interior Ministry published a video, “The Spider’s Web,” which portrayed diverse groups ranging from the Islamic State (also known as ISIS) to the Muslim Brotherhood, to human rights groups, including Human Rights Watch, as part of a plot against Egypt’s security.

Since 2013, Egypt has banned a wide range of groups as “terrorist organizations,” including the Muslim Brotherhood; April 6 Youth Movement, an activist group that played a key role in the protests organized against Mubarak in 2011; and football Ultras, hardcore fan groups. The Cairo Court for Urgent Matters, a non-specialized court, issued most of these decisions.

The reliance on the emergency courts adds to a broader legal arsenal that security forces have used in the name of fighting terrorism, including terrorism courts and expedited legal proceedings.

In March 2018, the head of the newly established UN Office of Counter-Terrorism, Under-Secretary-General Vladimir Voronkov, visited Egypt. Voronkov’s office was established in June 2017 to provide leadership in carrying out the General Assembly counterterrorism mandates. These include, as one of four “pillars” of counterterrorism strategy, “ensuring human rights and rule of law.” While the exact nature of discussions was not disclosed, no criticism was publicly voiced about Egypt’s abuse of one of the UN’s key pillars to fighting terrorism.

From January 2016 to January 2018, while Egypt was using its counterterrorism courts to silence dissent, Egypt was chair of the UN Security Council Counter-Terrorism Committee (CTC), a subsidiary body composed of all 15 Council members that monitors member states’ implementation of the various Security Council resolutions and decisions dealing with counterterrorism. Security Council resolution 1624 (2005), which addresses incitement to commit terrorist acts, stresses that countries must ensure that any measures they take to carry out the resolution comply with all their obligations under international law, in particular international human rights law.

“Egypt is proud of presenting itself as a key international actor in the fight against terrorism, but its domestic record shows that it is fighting peaceful critics and dissidents under the cover of countering ‘terrorism,’” Houry said. “And the most worrying part is that international actors in charge of ensuring an effective and human rights compliant counterterrorism strategy have been completely silent about this crackdown.”

For more information on the use of emergency courts and terrorism laws, please see below.

The Emergency State Security Courts are exceptional courts grounded in Egypt’s State of Emergency Law No. 162 of 1958. President Abdel Fattah al-Sisi declared a nationwide state of emergency in April 2017, which has been renewed and in effect ever since. Former Prime Minister Sherif Ismail issued a decree in October 2017 placing numerous crimes, including those related to protest, assembly, terrorism, and labor law, under the jurisdiction of the State Security Courts.

Egyptian authorities have not released any information on the number of people who have been referred to these courts since that time, but they have been used against large numbers of peaceful activists, including indigenous rights activists. In November 2017, authorities referred 32 indigenous-rights activists in Nubia to these courts for participating in an unlicensed protest. The activists were protesting land policies that deprive Nubian people, an ethnic minority in the south of Egypt, from returning to their original lands, from which they were displaced in the 1960s.

The government’s use of these courts violates many international standards, including article 14 of the International Covenant on Civil and Political Rights, which guarantees to every defendant the right to trial before a competent, independent, and impartial court, as well as the right to appeal and receive a judicial review of verdicts. The president has sweeping powers over these courts, as he or the prime minister, as his delegate, can appoint the judges and determine which offenses should be referred to those courts.

There is no appeal process for the courts’ decisions, and they are considered final when the president ratifies them. This is particularly problematic given that Egypt’s counterterrorism law punishes many crimes with death. Under international standards, proceedings in death penalty cases must conform to the highest standards of judicial independence, competence, and impartiality and must strictly comply with all fair trial rights. Human Rights Watch opposes the death penalty in all cases.

The UN special rapporteur on “the promotion and protection of human rights and fundamental freedoms while countering terrorism” noted following his visit to Egypt in 2009 that trials before these courts raise “concerns about the impartial and independent administration of justice and furthermore does not comply with the right to have a conviction and sentence fully reviewed by a higher court.” The current special rapporteur has identified Egypt among the 26 countries she wishes to visit during her mandate, but Egypt has not responded to her request, according to her most recent report in September 2017.

The emergency courts earned their infamous reputation during the administration of former President Hosni Mubarak. He made extensive use of the courts in prosecuting students, human rights defenders, political activists, union members, and those suspected of opposing the government during Egypt’s long spell under the state of emergency.

Despite Article 97 of the 2014 Constitution, which provides that “individuals may only be tried before their natural judge” and “extraordinary courts are forbidden,” the emergency courts have resumed their work. In August 2017 and April 2018, several lawyers filed suits challenging the constitutionality of the emergency courts before the Supreme Constitutional Court. However, the court has yet to make a decision.

Before the government reintroduced emergency courts in October 2017, Human Rights Watch documented that authorities referred peaceful activists, often rounded up in peaceful protests, to trial before “terrorism courts,” specialized chambers of the criminal courts that the government created in December 2013 to oversee terrorism cases.

Unlike emergency courts, terrorism courts are part of the criminal justice system and accordingly are bound by the procedures outlined under the country’s criminal procedural code.

The authorities set up those courts and assigned a few specific judges to them shortly after President Mohamed Morsy’s forced ouster in July 2013. The designation of specific judges was seen at the time as an attempt to circumvent judges who had recused themselves from judging certain cases that they considered politically motivated. The terrorism courts were then used to prosecute thousands of Muslim Brotherhood members and Morsy supporters in mass trials that violated due process and often ended up in death sentences.

The authorities also used these courts to prosecute activists protesting other government actions. Human Rights Watch documented that these “terrorism courts” tried and convicted scores of protesters who took to the streets in 2016 and 2017 to oppose al-Sisi’s decision to relinquish two Red Sea islands to Saudi Arabia. 

In the past, the Cassation Court, Egypt’s highest appellate court, which reviews criminal court decisions, has annulled many terrorism courts’ judgments and often ordered retrial. Several Egyptian officials, including al-Sisi, have criticized what they considered “slow” judicial processes and expressed their wish for “swifter justice.”

In April 2017, the Parliament issued several amendments to expedite criminal proceedings in terrorism cases and to reduce appeal opportunities before the Cassation Court. Al-Sisi has also issued laws that allow him more control over the appointment of the head of the Cassation Court and the Supreme Administrative Court.

The reliance on the emergency courts is further marginalizing the regular judiciary, especially the Cassation Court. 

In parallel to its emergency courts, Egypt maintains an overbroad legal arsenal in the name of countering terrorism. Al-Sisi issued Law 8 of 2015 for Organizing Lists of Terrorist Entities and Terrorists that allowed the prosecutor general to request designated Cairo criminal courts to add individuals or groups to “terrorism lists.” The court has seven days to consider the request. Thousands of individuals and groups have been listed without any hearing or proper due process.

In addition, al-Sisi issued a decree in October 2014 that expanded the jurisprudence of military courts. Since that time, about 15,000 civilians including hundreds of children, have been referred to military prosecutors.

Posted: January 1, 1970, 12:00 am

The organizations listed below welcome the adoption on June 26th, 2018 of UN General Assembly Resolution 72/284 reviewing the United Nations Global Counter-Terrorism Strategy, which reaffirms states' commitment to global responses to terrorism. The UN’s Global Counterterrorism Strategy, first adopted in 2006, sets out a plan of action for the UN and member states at the global, regional, and national level to counter-terrorism.

Our organizations recognize the value of a global counter-terrorism strategy where human rights are an essential component. The resolution importantly reaffirms states' obligations to comply with international law, including international human rights law, while countering terrorism and that human rights are the “fundamental basis of the fight against terrorism.”

We are, however, concerned at member states’ failure to adequately address human rights abuses and the increased militarisation of counter-terrorism approaches.  We are also concerned about member states’ failure to provide an enabling environment for civil society entities, including those relating to women, to be meaningfully engaged in the Strategy review.

In particular, this 6th review of the UN’s Global Counterterrorism Strategy failed to sufficiently address the spread of human rights violations perpetrated while countering terrorism and the erosion of international humanitarian law in armed conflict.

The review missed the opportunity to bolster the Strategy’s too often neglected 4th Pillar that requires the mainstreaming of human rights in all counter-terrorism activity and underscores that the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy. As successive UN Special Rapporteurs on counter-terrorism and human rights have noted, the mainstreaming and resourcing of an integrated human rights infrastructure in countering terrorism is an urgent priority within the UN system.

Furthermore, references to the inclusion of women have remained unchanged since 2016, limiting an opportunity to strengthen gender analysis. There is a strong need to integrate a gender analysis of power and question systems and practices that deepen traditional gendered roles facilitating conflict and militarised security. Without a gender analysis of discrimination, violence, and lack of access to resources in relation to women and to different groups within societies, efforts to counter terrorism cannot be effective. Indeed, measures developed without gender analysis often prove counterproductive.

These omissions not only erode the protection and promotion of human rights globally, but ultimately are self-defeating in ensuring sustainable long term responses to terrorism. 

Finally, at a time when civic space is being systematically eroded around the world under the pretext of countering terrorism, we are deeply disappointed that the review does not recognize the essential role that civil society plays in guarding against abusive counter-terrorism practices and responding to and preventing the conditions conducive to terrorism. Fundamental rights underpinning the work of civil society must be protected. States can and should do better, and make sure the UN does too.

On a positive note, we welcome the review’s emphasis on the role of the Counter-Terrorism Committee Executive Directorate (CTED) to share information with relevant United Nations counter-terrorism bodies and relevant international, regional and subregional organizations. However, this sharing can only take place with the permission of those member states under CTED assessment; though we recall, as CTED itself has emphasized, that information may only be shared in a manner consistent with human rights, we urge these states to not require the Directorate to keep such information confidential.

We also welcome the request in the review for the Secretary-General to report annually on the progress of the United Nations Office for Counter-Terrorism in increasing transparency in selection and funding of projects and their impact, as well as on the efficiency of shared funding arrangements. The aim of this request is to ensure meaningful assessment of the UN Counter-Terrorism Architecture at the 7th review of the Global Counter-Terrorism Strategy. We urge the Secretary-General to prioritize this important task.

Co-signatories:

Amnesty International

ARTICLE 19

Fair Trials

Global Center for the Responsibility to Protect

Global Center on Cooperative Security

Human Rights Clinic (Columbia Law School)

Human Rights Watch

International Center for Not-for-Profit Law (ICNL)

International Commission of Jurists (ICJ)

International Federation for Human Rights (FIDH)

International Service for Human Rights (ISHR)

Open Society Justice Initiative

Privacy International

Reprieve

Rights Watch UK

Posted: January 1, 1970, 12:00 am

The United Nations logo is pictured in front of the United Nations Headquarters building during the 71st United Nations General Assembly in the Manhattan borough of New York, U.S., September 22, 2016. 

© 2016 Reuters

Last week was counterterrorism week at United Nations headquarters in New York. Conference rooms and the General Assembly hall were abuzz as national intelligence and security chiefs from around the globe met with UN officials on how to confront the scourge of transnational extremist armed groups such as the Islamic State, Boko Haram, al-Qaeda, and al-Shabaab.

In one room, delegates from the African Union, France and Peru discussed freezing terrorist finances. In another, UN officials unveiled their action plan for imams to preach against violence. In a third, European Union and Saudi counterterrorism directors compared notes on prosecuting, rehabilitating and reintegrating nationals who had returned from fighting in Syria and Iraq.

Distressingly, however, few discussions delved into a core element of the UN’s official guide to member countries for countering terrorism. That guide, the UN Global Counter-Terrorism Strategy, lists human rights as its “fourth pillar.” Not only are violations of human rights unlawful, they can backfire and fuel further terrorism, according to the strategy, which entered into force in 2006 and was reaffirmed by the General Assembly just last week.

To his credit, Secretary-General Antonio Guterres highlighted the strategy in a keynote speech Thursday, which kicked off a two-day summit of national security and intelligence directors that capped last week’s proceedings.

“No one is born a terrorist, but we know that factors such as prolonged unresolved conflicts, lack of the rule of law, human rights abuses, poverty, lack of opportunities and socioeconomic marginalization can all play a part in transforming ideas and grievances into acts of terrorism,” Guterres said. “So, preventing and resolving conflicts and promoting the rule of law and social and economic progress are our first lines of defense.”

But there is an enormous disconnect between those lofty words and the reality on the ground. Around the world, countries are routinely rolling back human rights protections in the name of countering terrorism. Victims of heavy-handed policies include bloggers, peaceful protesters, civil society activists, and people targeted because of their religion, ethnicity or nationality.

In Australia, the government can strip citizenship from dual nationals as young as 14, without requiring a criminal conviction, if they are suspected of carrying out serious terrorism crimes abroad. In Spain and France, musicians, journalists and others have been prosecuted for “glorification of terrorism” or “apology for terrorism” even if their comments are not intended to incite violence or support an  extremist armed group. In Europe, governments are citing terrorism concerns to justify closing borders to immigrants and refugees.

In Iraq, thousands of suspects are being prosecuted in deeply flawed trials for membership in the Islamic State (also known as ISIS). Even cooks, cleaners or supporters not involved in combat are receiving sentences of life in prison, or death.

In Syria, Iraq and Libya, some 3,000 foreign wives and children of ISIS members have been crowded into jails  or cordoned into de-facto detention camps for months. The children are victims of their parents’ decisions and many wives claim they unwillingly accompanied their husbands. Yet most of their governments aren’t lifting a finger to ensure fair trials or, if they aren’t being prosecuted, to help retrieve them from foreign detention.

In Somalia, security agents  are in some cases holding children incommunicado or  physically abusing them to extract confessions when they suspect them of links to al-Shabaab. In Nigeria, women and girls who survived the brutality of Boko Haram have reportedly been raped by security forces who claimed to be rescuing them.

Clearly, governments face enormous challenges in confronting terrorism. Rarely a week goes by without an armed extremist attack on ordinary people in one or more parts of the world, and governments have a responsibility to protect everyone under their jurisdiction from harm. But as the gatekeeper of world peace and security, the UN should be intervening to prevent serious counterterrorism violations of rights with the same urgency that it seeks to stem extremist attacks. Instead, if anything, the UN has been enabling member countries’ heavy-handed tactics in the 17 years since September 11, 2001.

The Security Council in particular has issued a string of binding resolutions that require UN member countries to criminalize an array of potentially terrorist activities but that largely fail to describe what constitutes a terrorist act. This gives governments a green light to concoct definitions that can be broadly used to designate individuals or groups as terrorists simply because they don’t like them or because they’re political opponents.

Much of the UN infrastructure to monitor member states’ compliance with these mandates has been dominated by countries with terrible human rights records, including Russia, Saudi Arabia and Egypt—although mature democracies such as the United States and the United Kingdom, which have their own histories of counterterrorism abuses, also have played influential roles.

Over at the General Assembly last week, delegates from human rights-respecting countries had to fight hard to keep protective language from being weakened in the June 26 resolution that reviewed and reaffirmed the UN Global Counter-Terrorism Strategy.

In one positive development, the June 26 statement calls for greater transparency from the UN’s year-old Office of Counterterrorism (OCT), which was established to bring coherence to the efforts of more than three dozen UN entities involved in counterterrorism efforts. The call was timely: the OCT’s dealings remain largely opaque.

The review also calls for the secretary-general to assess the OCT’s work, including its efforts to increase transparency, and to report on its progress next year. The aim is to start a meaningful review of the UN’s counterterrorism architecture. Guterres should take this task seriously.

Member states, in turn, should heed new guidelines drafted by the UN Office of the High Commissioner for Human Rights on responses to the phenomenon of foreign fighters. The guidelines were unveiled in one of last week’s few rights-related sessions. They fill in the blanks in overly broad Security Council mandates by spelling out what member countries need to do to ensure their laws and measures don’t sidestep human rights. As for the Security Council, it should define terrorism narrowly to make it harder for states to infringe on fundamental rights and target dissidents and political opponents.

Absent these efforts, last week’s flurry of UN meetings will end up being just another missed opportunity to transform respect for human rights from a rhetorical pillar into a national security imperative.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Members of the First Responders Team in Raqqa city, Syria exhume a body from a mass grave at the al-Rashid playing field. 

© 2018 Human Rights Watch

(Beirut) – A local group working to uncover mass graves in the area of northeastern Syria once controlled by the Islamic State (also known as ISIS) needs international support and technical assistance to preserve evidence of possible crimes and identify the remains, Human Rights Watch said today.

With an unknown number of mass graves in the city of Raqqa and surrounding areas and thousands of bodies left to be recovered, local authorities affiliated with the Raqqa Civil Council are struggling to cope with the logistical challenges of collecting and organizing information about the bodies recovered and providing it to families searching for missing or dead relatives. Identifying missing people and preserving evidence for possible prosecutions will have implications for justice in Syria as a whole.

“Raqqa city has at least nine mass graves, each one estimated to have dozens, if not hundreds, of bodies, making exhumations a monumental task,” said Priyanka Motaparthy, acting emergencies director at Human Rights Watch. “Without the right technical assistance, these exhumations may not provide families with the answers they have been waiting for and could damage or destroy evidence crucial to future justice efforts.”

Raqqa city has at least nine mass graves, each one estimated to have dozens, if not hundreds, of bodies, making exhumations a monumental task.

On June 12, 2018, the First Responders Team in Raqqa finished uncovering one mass grave containing 553 bodies and reburying them in a local graveyard after logging in their identifying information, and have begun work uncovering a second. The first grave, at al-Rashid playing field in Raqqa city, is the first of nine mass grave locations the team has identified, a team leader told Human Rights Watch. Human Rights Watch researchers visited the site in May. The team operates under the authority of the Raqqa Civil Council, a local governance unit created by the Syrian Democratic Council in April 2017.

ISIS detained thousands of people during its control of the area, from June 2014 to October 2017, when armed groups on the ground supported from the air by a US-led coalition retook the city. Relatives of some detainees who remain missing launched a campaign in late 2017, “Where are the kidnapped by ISIS?” to seek the coalition’s help in finding the fate and whereabouts of ISIS detainees. They have yet to receive a response. Local authorities estimate that thousands of others were killed during the battle to retake the city, many of whom were buried hastily, or whose bodies remain in the rubble.

Yasser al-Khamis, the head of the First Responders Team, told Human Rights Watch that the team believed, based on their observation of injuries and reports from family members who identified relatives’ remains, that the al-Rashid site contained a mix of airstrike victims and ISIS fighters, and that it may also have contained patients from a nearby hospital. Workers had identified women and children, as well as men, among the bodies, he said. Of the 106 bodies exhumed at the time of Human Rights Watch’s visit, the team had identified five that appeared to be ISIS fighters based on their clothing, and believed the rest to be civilians. Where possible, the team registered names of the deceased and any immediate family member who was able to identify them.

Human Rights Watch researchers observed the team logging basic details about the bodies found; for each body, a team member assigned the body a number and logged on a form the possible cause of death, injuries, sex, hair color and length, clothing, and approximate age, if it could be determined, as well as any items found on the body. They determined this information based on a visual assessment of the remains exhumed. They did not take photographs in accordance with international forensic standards, an important practice in working towards a more reliable record of the dead. Most team members were volunteers who do not have forensic expertise. The team’s forensic doctor had been a general practitioner before ISIS was driven from the area and had no prior experience or formal training in forensic analysis.

The team developed their protocol based on phone consultations with international organizations. But the lack of technical equipment and forensic expertise, combined with the fact that at least seven months had passed since initial burial, made the identification process inexact and subject to error.

Exhumations in Raqqa are further complicated by the presence of landmines. All the mass grave sites must be cleared of landmines planted by ISIS before the team can remove bodies, al-Khamis said. Human Rights Watch has previously documented the dangers civilians face from landmines planted in Raqqa and other parts of Syria and Iraq previously under ISIS control, including at other mass grave sites.

The recovery and analysis of skeletal remains from mass graves is a complex process that requires expertise in gathering information about missing persons, ability to conduct excavations, and skills in identifying the bodies and determining the cause of death. When the case involves violations of human rights and international humanitarian law, exhumations without forensic experts can destroy critical evidence and greatly complicate the identification of bodies.

Families of those who disappeared or died during the Raqqa battle also lack a centralized body or office where they can provide information about missing relatives or go to receive information about them, Human Rights Watch found. Some have come to the site of the mass grave, but many families are no longer living in the area. Even for those in the area, the team lacks capacity to systematically respond to queries.

Representatives of the Raqqa Civilian Council told Human Rights Watch that the local intelligence services were responsible for receiving and providing information about missing or disappeared persons to families, but the intelligence services do not make themselves readily available to civilian meeting requests. In some cases, civilians are not aware that they are the responsible entity.

Local authorities have also received little support from international organizations in the field. One of the issues reported is that some international organizations are unwilling or reluctant to support local authorities for fear of alienating Syrian government authorities in Damascus or to jeopardize their relations with Turkey, both of which are hostile to the local authorities.

Local authorities should designate a centralized civilian authority where families can collect or provide information on missing persons, and explore ways to communicate with families living in areas outside their control. Authorities should also create a digital database, including photographs in accordance with basic forensic standards, for those exhumed from mass grave sites.

Members of the international community now providing recovery and stabilization support, most prominently the United States, should support local authorities in developing and maintaining a more precise system for storing information on missing persons and identifying exhumed remains. While the US is providing funding to the Raqqa Civil Council and the team, the amounts are not public knowledge and the team noted that its work was temporarily affected by the March 2018 freeze of $200 million in US government stabilization funds for Syria. It was clear to Human Rights Watch that the team needs far more training and technical assistance in order to exhume the bodies and collect data without losing information crucial to identifying them.

International organizations with forensic expertise should provide technical support, including by sending in forensic experts to support the identification and exhumation processes, and local authorities should facilitate the process to the extent possible.

If workers continue to exhume the graves without adequate technical training, equipment, and support, families may lose the opportunity to accurately identify the remains of their loved ones. Evidence regarding crimes in the area, including ISIS crimes, may be lost.

“Families of those killed by ISIS deserve to know the fate of their loved ones and to have access to justice for those crimes, and preserving evidence from these mass graves is a key part of that,” Motaparthy said. “Local groups are doing what they can, but they need support to carry out their difficult and dangerous work in a way that fully supports families’ right to accurate information about those killed.”

Posted: January 1, 1970, 12:00 am

A local group working to uncover mass graves in the area of northeastern Syria once controlled by the Islamic State (also known as ISIS) needs international support and technical assistance to preserve evidence of possible crimes and identify the remains.

Posted: January 1, 1970, 12:00 am

A motorboat passes by the MI6 building in London August 25, 2010.

© 2010 Reuters

Today, the UK Parliament’s Intelligence and Security Committee confirmed that, while cooperating with US-led post-2001 counterterrorism operations, the UK took and tolerated actions that were “inexcusable”. For those unfamiliar with polite euphemisms in British English, some of the actions the report is talking about were torture and other ill-treatment, acts which are illegal under international law.

This is exactly what nongovernmental organizations and journalists have documented for years.

The Committee’s verdict came in two reports resulting from its inquiry into UK complicity in sending suspects to countries without due process, a practice called extraordinary rendition, despite the knowledge they risked torture, as well as UK complicity in the torture and ill-treatment of suspects outside the UK between 2001 and 2010.

The reports are excoriating. They reveal layer after layer of illegal behaviour and failure to stop the abuses. They also underscore the UK government’s unwillingness to ensure this doesn’t happen again.

The first report details a litany of failures by UK intelligence agents cooperating with other governments between 2001 and 2010 . While it found no evidence of direct “physical mistreatment” of detainees by UK officials, it did find two cases where UK personnel were “party to mistreatment administered by others”, 13 incidents where UK personnel witnessed detainee ill-treatment, 232 cases where the UK gave questions to other states’ intelligence services after they knew or suspected ill-treatment, and 3 cases where UK intelligence agencies offered financial benefit to others to conduct a rendition.

The second report, which examines UK policy since 2010, is if anything even more troubling. It concludes that the UK government and intelligence agencies somehow failed to see these patterns, identify risks, and revise policy quickly enough. Although the UK committed in 2010 to not make the same mistakes, it is not keeping good records about its policy on how detainees are treated by other intelligence agencies, nor is it making changes to its policy guidance as recommended by oversight bodies.

The UK has a duty under international law to prevent and punish torture. This means criminal investigations and prosecutions where evidence exists of criminal responsibility for torture.

Yet there is little in the committee’s findings to reassure us that if faced with a similar situation again, the UK’s response would be one that places human rights front and center. The government’s response to the committee has been guarded thus far. Until government decision-makers and intelligence agencies heads amend existing policies, ensure those in charge of oversight have the transparent data they need, and know they will face prosecution if they are responsible for crimes, there is real danger that UK agencies could be complicit in torture again.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

A detainee paces around a cell block while being held in Joint Task Force Guantanamo's Camp VI at the U.S. Naval Base in Guantanamo Bay, Cuba March 22, 2016.

© 2017 Reuters

UPDATE: This Q&A was originally published on May 4, 2017 and last updated on June 27, 2018. 

On January 11, 2002, the United States brought 20 prisoners to the US Naval Base at Guantanamo Bay, Cuba, the beginning of the long-term detention of hundreds of individuals apprehended in Afghanistan, Pakistan, and elsewhere. Then-Defense Secretary Donald Rumsfeld labeled Guantanamo’s first detainees “unlawful combatants” who “do not have any rights under the Geneva Convention.” By holding detainees outside of the US, the administration of President George W. Bush reportedly hoped to avoid US court jurisdiction, though ultimately the US Supreme Court rejected the administration’s attempts to deny Guantanamo detainees access to US courts.

As part of the detainees’ interrogation, the US military subjected them to torture and other ill-treatment, including placing them in painful stress positions and in extended solitary confinement; threatening them with torture, death, and military dogs; depriving them of sleep; and exposing them for prolonged periods to extreme heat, cold, and noise.

At least 780 people have been held at Guantanamo, the vast majority without charge or trial. Nine detainees have died there, six from suspected suicide. The US has transferred 732 to home or third countries, 533 during the George W. Bush administration and 144 during the administration of President Barack Obama and one during the administration of President Donald Trump. On his second day in office Obama promised to close Guantanamo, but by the end of his term in office, 41 detainees remained, including five that his administration designated for release.

Donald Trump has said that as president he would keep the Guantanamo Bay detention facility open and add to the inmate population there. On January 30, 2018, Trump signed an executive order about US detention practices at Guantanamo and discussed the facility during his State of the Union address. The two final questions below refer to the January 30 order. 

Human Rights Watch has long called for the US government to charge Guantanamo detainees in US federal courts or release them to safe home or third countries.

The following questions and answers look at current issues regarding detentions at Guantanamo and those that may arise under the Trump administration.

What’s wrong with detaining people at Guantanamo?

Who has been held at Guantanamo?

Who is currently detained at Guantanamo?

What’s wrong with the Guantanamo military commissions?

Have released Guantanamo detainees engaged in terrorism?

Should future detainees be sent to Guantanamo?

How should US forces treat people apprehended in military operations abroad?

Should current Guantanamo detainees be transferred to the US?

What does Trump’s executive order on Guantanamo mean?

How will the executive order affect existing Trump administration practices at Guantanamo?

What’s wrong with detaining people at Guantanamo?

The military detention facilities created at Guantanamo Bay were designed from the outset to be outside the regular US justice system. Nearly all of those detained at Guantanamo since its inception have, for one reason or another, been held in violation of applicable international humanitarian law or international human rights law. Detainees were held without regard for their legal status under the laws of war. Very few were charged with a criminal offense. Many were tortured or otherwise ill-treated, were held based on inaccurate evidence or analysis, or on misinformation, or were cases of mistaken identity, and were not provided with adequate means to challenge their detention. These violations have damaged the US human rights record and undermined the fight against extremist armed groups by feeding into terrorist propaganda and providing them a powerful recruitment tool.

Guantanamo detainees who were charged have faced military commissions – a judicial system created at Guantanamo that does not meet international fair trial standards.

Who has been held at Guantanamo?

Most of the 780 men sent to Guantanamo were turned over by Afghan militias or Pakistani forces to US forces after the US-led invasion of Afghanistan following the September 11, 2001 attacks on the United States. Afghans made up the largest number of those captured, but many came from dozens of other countries, drawn to the region to support various forces fighting in Afghanistan’s civil war at the time, or for other reasons. A large but unknown number were turned over to the US for bounties; as one offer stated, the bounty would provide “enough money to take care of your family, your village, your tribe for the rest of your life.”

A smaller number were apprehended far from Afghanistan, in places like Azerbaijan, Kenya, Thailand, and Turkey, and then transferred to US custody and sent to Guantanamo. According to Jane Mayer’s The Dark Side, a former top military commander at Guantanamo, Maj. Gen. Michael Dunlavey, estimated that at least half of those held at Guantanamo were held by mistake. An academic study by Seton Hall University Law School concludes that according to US documentation, at least 55 percent of the detainees at Guantanamo never engaged in any hostile acts against the US and only 8 percent had any association with the militant group Al-Qaeda.

People held at Guantanamo include:

Mohamedeou Ould Slahi, who was held for more than 14 years without charge or trial before his release in October 2016 and return to his native Mauritania. While still detained and after years of battling US government censors, he published a memoir about his time at Guantanamo. In Guantanamo Diary, Slahi details years of torture and abuse. The US intended to press charges against Slahi but a military prosecutor refused to do so after learning that Slahi’s most incriminating statements were obtained through torture.

Omar Khadr, a Canadian, who was 15 when he was apprehended by the US during a firefight in Afghanistan. US forces treated him abusively in Afghanistan and sent him to Guantanamo, where, he said, he was put in stress positions and threatened with rape, among other abuses. The US never treated him in accordance with its international obligations toward children used in armed conflict. Two years after pleading guilty to crimes before the fundamentally flawed US military commissions in 2010, he was transferred to a detention facility in Canada. He was released on bail in 2015, and is currently appealing his US military commission conviction.

Mustafa al Shamiri, a Yemeni detainee once deemed “too dangerous to release,” whose detention proved to be a case of mistaken identity. Shamiri, who was 16 or 17 at the time of his detention, spent more than 14 years imprisoned at Guantanamo before a US inter-agency review board found that the original intelligence about him being a trainer at an Al-Qaeda camp was wrong.

Only 16 of those held at Guantanamo were ever charged with criminal offenses. Nine of them remain at Guantanamo, along with 31 others being held without charge. Seven, including five men accused in the September 11, 2001 attacks, currently face charges before the military commissions, and two others were convicted after trial or plea bargain. The US has maintained that it could continue to hold detainees who still pose a security risk even after they finished serving their sentences.

Five of the 16 who were charged, including Khadr, have since been released. One of the 16, Ahmed Ghailani, was transferred to US federal court in New York, where he was convicted of conspiracy in 2010 and later sentenced to life in prison. He is the only Guantanamo detainee transferred to federal court for prosecution. At least three of the military commission convictions were thrown out and others partially overturned after a US appellate court found that material support for terrorism and solicitation were not war crimes and, therefore, could not be charged in the military commissions.

Numerous current and former national security policymakers have called for closing Guantanamo. The UN Committee against Torture and other UN rights officials and many government leaders in other countries have called on the US to end detention at Guantanamo and close the facility.

Who is currently detained at Guantanamo?

Most of the 40 men held in Guantanamo as of June 27, 2018, have been detained by the US for nearly 16 years without charge or trial. They fit within three broad categories:

Five were cleared for release during the Obama administration but were not transferred to home or third countries by the end of Obama’s term. It is not yet clear if the Trump administration will act on Obama’s decision.

There are 26 detainees whom the US asserts it can detain indefinitely for security reasons. The government made these determinations about these men after reviews largely conducted in secret and without adequate process. In 2008, the US Supreme Court ruled that Guantanamo detainees could challenge their detention in federal habeas corpus proceedings. However, not all detainees obtained these hearings and when they did, the courts ultimately sided with the government, ruling that the US can hold them even with very little evidence, weighed in the government’s favor, of connection to terrorist groups until the end of hostilities. The courts have not determined what constitutes the “end of hostilities,” so those held are effectively detained indefinitely.

Seven of the 40 face charges, and two more remain imprisoned after trial or accepting plea agreements with Guantanamo’s military commissions.

Human Rights Watch has said that all Guantanamo detainees should either be charged in a court that meets international fair trial standards – such as US federal courts – or released to safe home or third countries.

What’s wrong with the Guantanamo military commissions?

The military commissions at Guantanamo do not meet international fair trial standards and should be disbanded. They are, among other things, mired in excessive secrecy, fail to adequately protect attorney-client privileged communications, and permit the introduction of coerced evidence.

Current cases in the commissions are plagued by procedural problems and questions over the applicable law. The case against the five suspects in the September 11, 2001 attacks is headed into its sixtth year of pretrial hearings, with a trial date still years away. That is bad for the defendants, for the families of the victims, and for justice generally. The slow progress is the result of government secrecy about the defendants’ torture in CIA custody, the novel nature of the commission’s untested rules and procedures, and logistical difficulties associated with holding hearings on an island several hundred miles from the United States.

During the a March 2017 hearing, the military judge in the case, Col. James Pohl, refused to set a trial date because the prosecution remained behind in turning over classified evidence to the defense, and court facilities were inadequate. Meanwhile federal courts, though not without their flaws, have, since 9/11, prosecuted several hundred terrorism cases much more effectively and with respect for due process.

Only eight verdicts have been obtained in the military commissions. Three of them have been completely overturned by US court decisions, and others partially. They were overturned on the grounds that the charges did not amount to recognized laws of war violations that Congress authorized to be tried in the Guantanamo Bay military commissions. As a result of these cases, charges of material support for terrorism and solicitation were ruled outside the commissions’ jurisdiction, and charges of conspiracy are in question.

Have released Guantanamo detainees engaged in terrorism?

US government reporting on alleged terrorism by former Guantanamo detainees has been controversial. While some former detainees are reported to have engaged in, or been associated with, violent acts, the vast majority of the more than 732 detainees released from Guantanamo are not reported to have been involved in any such activity.

The US Office of the Director of National Intelligence (DNI) reported that as of January 15, 2016 about 118, or 17 percent, of former detainees had become involved in terrorism since their release. These figures were based on a definition of terrorism that broadly includes “insurgent attack[s]” not necessarily against US forces but rather “coalition or host-nation forces.” Moreover, the DNI uses a preponderance of the evidence standard for “confirmed” acts of terrorism, meaning it believes it is “more likely than not” the individual has engaged in the reported acts, rather than a more reliable standard.

The overwhelming majority of these reported cases of violence predate 2009, when many detainees were released without very effective post-release monitoring and reporting mechanisms in place. Since 2009, when these mechanisms improved, the DNI reported, in the same January 15, 2016 assessment that only seven former detainees were“confirmed” to have engaged in what it defines as terrorism.

The credibility of the DNI figures has been contested based on publicly available information about terrorist attacks. The DNI has released inadequate information about former detainees allegedly involved in attacks, and about the attacks themselves.

The government has used its claims of connections to violence by former Guantanamo detainees to deny release to current detainees, particularly those from the same country. But decisions to release detainees should be based on individualized assessments about whether they can be prosecuted for a criminal offense, not on the actions of former detainees released years before. Detaining someone because of the actions of others amounts to collective punishment and denies detainees due process.

Should future detainees be sent to Guantanamo?

Sending new detainees to Guantanamo would compound the detention facility’s history of injustice, and might repeat past violations of international law. Doing so would also be counterproductive to US counterterrorism efforts by providing fuel to the Islamic State (also known as ISIS), Al-Qaeda, and other Islamist armed groups that are seeking to discredit the US.

Such armed groups have routinely used the situation at Guantanamo in their propaganda materials to recruit fighters globally. For instance, many non-Iraqis who took up arms against the US in Iraq did so because of US abuses at Guantanamo as well as at the US military prison at Abu Ghraib.

Sending future detainees to Guantanamo is also unnecessary – the US has other options for holding those apprehended and accused of alleged crimes committed abroad.

How should US forces treat people apprehended in military operations abroad?

US forces abroad that apprehend people suspected of war crimes and other crimes under US law should promptly transfer the suspects to the United States for prosecution in US federal courts. Otherwise, the US should, wherever possible, transfer captured combatants and civilians posing a serious security threat to national authorities in the country of capture for possible prosecution. In circumstances in which such transfers cannot lawfully be made, such as if the detainee would face likely torture or if the US is acting without the permission of the national authorities, such as in Syria, continued detention must meet basic due process standards.

Anyone being transferred out of a country by US forces, including someone turned over by non-state armed groups, should be able to contest the transfer in that country’s courts. This would not be required during a so-called international armed conflict between governments, such as between the US government and the Syrian government. Every detainee must be treated humanely at all times. Places of detention should not be near combat zones though to the extent possible they should be close to detainees’ homes. Visits from family members must be allowed if practicable. Children being detainedmust be held separately from adults, unless they are detained with their family.

People taken into custody during an armed conflict are entitled to basic protections. These include being promptly brought before an independent authority, such as a judge. The detainee must be provided specific reasons for their detention and have the ability to contest the detention. Where feasible the detainee should have access to a lawyer or other counsel. Individuals who are not being prosecuted for a criminal offense may only be held for exceptional reasons of security and must be released as soon as the reasons for their deprivation of their liberty cease to exist. Detention under such circumstances should be reviewed at least every six months.

Regular soldiers and civilians captured in fighting between two government forces would be protected under the rules for prisoners-of-war and security detainees under the Third and Fourth Geneva Conventions.

Should current Guantanamo detainees be transferred to the US?

Human Rights Watch supports closing the Guantanamo Bay detention facility, but not by detaining individuals currently held there in US prisons without charge or trial. Moving them to the US would not end the rights violation of detention without trial, just transfer people whose rights are being violated to a new location.

However, those who can be charged with a criminal offense should be, and should be brought to the US and prosecuted in US federal courts. Those who cannot be charged should be released to a safe home country or third country.

Currently, US law bars the transfer of prisoners from Guantanamo to the US for continued detention or trial. Any revision of the law should not permit the transfer to super-maximum security (“supermax”) prisons in the US, which are designed for convicted prisoners deemed extremely dangerous. The use of extremely harsh supermax prisons raises grave human rights concerns generally. They should not be used to hold people who have not been convicted of an offense, such as those being held without trial at Guantanamo.

What does Trump’s executive order on Guantanamo mean?

On January 30, 2018, President Trump signed an executive order to keep the Guantanamo Bay detention facility open. The order revokes former President Barack Obama’s 2009 executive order that mandated the facility’s closure and pledged to do so within one year of signing—a goal Obama did not achieve. While the language of Trump’s order merely continues many of the same policies that were in place during the Obama administration, it rejects the broader policy aim to close Guantanamo and suggests that future detainees may be sent to Guantanamo, which Obama did not do.

The order directs the defense secretary to re-examine US detention policy and provide recommendations for handling detainees captured by the US in connection with an armed conflict, including an option of sending them to Guantanamo. The order also states that newly captured suspects can be prosecuted in federal court. Interagency review boards will continue to examine the cases of Guantanamo detainees, and they could be released if cleared by a review board or a court.

How will the executive order affect existing Trump administration practices at Guantanamo?

Though the executive order largely reaffirms existing US government policies, the Trump administration has thus far not shown a strong commitment to enforcing them. For example, though Guantanamo detainees’ can seek to have interagency boards review their cases, Trump has said there should be no further releases from Guantanamo and detainee lawyers contend that the any review process will not will not be genuine. The order preserves the option to transfer detainees out of Guantanamo, but Trump has not transferred out any detainees since taking office in January 2017.

Some Justice Department attorneys do not want terrorism suspects apprehended abroad sent to Guantanamo because the federal courts have been much more effective at prosecuting terrorism cases than the military commissions at Guantanamo. Moreover, many countries that would normally work with the US on counterterrorism efforts will not extradite suspects to the US if they could be sent to Guantanamo. While Trump himself has recognized that the military commissions have been ineffectual in prosecuting terrorism cases, the executive order raises concerns that under certain circumstances he intends to send future detainees there. 

 

Posted: January 1, 1970, 12:00 am

Residents of Shahama camp speak with relatives through the camp fence. 

 

 

© 2017 Sami Hilali

(Baghdad) – Iraqi army soldiers at two checkpoints in Anbar governorate have arbitrarily prevented a group of displaced families from returning home in what appears to be an act of collective punishment, Human Rights Watch said today.

The families were taken to camps for displaced people in Anbar after being blocked from returning in late February 2018 and again in early June. The families were displaced by fighting against the Islamic State (also known as ISIS) in 2014 and now want to return. The area has been under the control of the Iraqi government since February 2015. The families are from the Sa’ada tribe, whose members have been accused of affiliating with ISIS, Anbar residents told Human Rights Watch.

“Baghdad authorities have rightly said many times that families from areas retaken from ISIS should be able to return to their homes if they want to,” said Lama Fakih, deputy Middle East director at Human Rights Watch. “It is unacceptable for soldiers to arbitrarily block residents from going home, in direct contradiction to the central government’s orders to facilitate safe and voluntary returns.”

On May 2, 2018, Human Rights Watch interviewed three residents of al-Khalidiya Central Camp for displaced people who are originally from al-Baghdadi, a town in Anbar governorate 180 kilometers northwest of Baghdad. They said they fled al-Baghdadi in August 2014 after anti-ISIS forces began fighting ISIS fighters in the town with airstrikes and ground-fired munitions. Iraqi security forces retook the town in February 2015, and since then the town has remained relatively stable despite a few attacks in the area over the past months, but no one has returned. The two women and a man interviewed said they had applied through the camp managers for security clearance to return home in early 2018 as part of a group of 51 families from al-Baghdadi living in two camps in al-Khalidiya.

The camp managers said they obtained permission for their return from the camp’s security forces and from both the Anbar Operations Command and the neighboring Jazeera Operations Command. At about 3 p.m. on a day in late February, 18 of the families boarded three government buses from Iraq’s Transport Ministry planning to return home.

One woman, 43, said the buses reached the al-Akouba checkpoint at about 9 p.m. Soldiers from the army’s 7th division stopped them and checked their identity cards. “After holding us there for an hour and a half, they said that we were not allowed to return to our homes and had to go back to the camp,” she said. “They didn’t give us any reason why.”

A Sa’ada sheikh said that even though the families had clearance, forces of the Jazeera Operations Command, which controls the checkpoint, chose not to recognize the clearance. The sheikh said that on April 21, the commander of the Jazeera Operations Command assured him that the military had no problem with the families’ returning home, but that the mayor of al-Baghdadi was pressuring him to get his forces to block the returns.

The sheikh said as he met with the commander, the mayor arrived and told the commander that the families could not return because they were ISIS supporters. Neither the mayor nor the commander made any reference to concerns around the security situation in al-Baghdadi, he said.

“If the government stops me from returning home, that means I am not an Iraqi anymore,” said a second woman, who is 29. “Otherwise I would have a right to my home.”

Three al-Baghdadi residents in al-Khalidiya Central Camp and the sheikh told Human Rights Watch that in early June, another group of at least nine al-Baghdadi families who had obtained the necessary security clearances boarded government buses again for al-Baghdadi. The people interviewed said they were in touch with the families during the journey and that they said that this time they were allowed to pass through al-Akouba checkpoint, but that they were stopped at a checkpoint run by the army’s 9th division in al-Baghdadi and taken to another Anbar camp for the displaced. Once the families arrived, the people interviewed lost contact with them.

Human Rights Watch wrote to Haidar Ukaili, a representative of the Prime Minister’s Advisory Council, on June 12, asking why the families from al-Baghdadi were prevented from returning home and what measures were being taken to allow their return. He stated in a reply email on June 14, that a group of 18 families were stopped from returning on April 27 “due to not having security permits” but that on June 3, 11 families were allowed to return to al-Baghdadi. Human Rights Watch has not been able to verify that 11 families were allowed to return and whether these families included those stopped by the 9th division in al-Baghdadi in early June.

Ukaili’s email made clear that other than the 11 families who were reportedly allowed to return, other families had been blocked from returning either “due to not having security permits” or because, as his email said, “There is caution with the return of the rest of the families due to fears of retaliation as some of the family members belong to ISIS. Therefore, they were told to wait for the time being until the issue is resolved tribally.”

In the cases Human Rights Watch documented, the people interviewed said that the families had the needed security permits, which appears to be supported by the fact that Ministry of Transport buses were sent to the displacement camp to return them home.

At the same time, Ukaili’s email implies that al-Baghdadi families are being penalized collectively because some have relatives who were members of ISIS. It is not the first time Iraqi authorities have contended that families related to ISIS suspects cannot remain in their own communities  for their own safety.

Since 2014, Human Rights Watch has reported on scores of incidents across Iraq in which local authorities prevented families from returning home. All of the reports have been linked to allegations that the families supported ISIS because their relatives or communities had been accused of ISIS membership. Displaced people have the right to voluntarily and safely return home once the reason for their displacement no longer exists.

It is a basic international standard that punishment for crimes should only be imposed on people responsible for the crimes, after a fair trial to determine individual guilt. Imposing collective punishments on families, villages, or entire communities is strictly forbidden and is a war crime. Members of aid groups monitoring returns in Anbar told Human Rights Watch that the situation with the al-Baghdadi families is just one of many similar incidents there. On May 27, they said, security forces and tribal leaders prevented more than 50 families from returning to their homes in various towns in west Anbar, and sent them into secondary displacement in camps. Lack of coordination on security clearances between the various operations commands allegedly played a critical role, they said.

The authorities should immediately facilitate the return of families who want to return to areas not affected by ongoing military operations, including from the camps, Human Rights Watch said. They should also allow families to choose to stay in camps with unrestricted movement into and out of the camp and unrestricted communications, or to allow them to relocate elsewhere.

Anbar’s new Returns Committees, established in April along with equivalent committees in other governorates to facilitate a consultative and principled returns process, should advocate with local and Baghdad authorities on behalf of the al-Baghdadi families to facilitate their return.

Baghdad authorities should take transparent steps to sanction all officials, including from Iraq’s military and security forces, who prevent people from returning home unlawfully or as a form of collective punishment, including considering criminal charges where appropriate.

“If the Iraqi government is serious when it insists that if there is no evidence that individuals have links to ISIS they are innocent under the law, it needs to demonstrate that any officials who break the law will be punished,” Fakih said. 

Posted: January 1, 1970, 12:00 am

Russian women, sentenced to life in prison on grounds of joining ISIS, sit with children in a hallway of Baghdad's Central Criminal Court, April 29, 2018.

© 2018 Ammar Karim/AFP/Getty Images
 
(Beirut) – Iraq’s judiciary should change its approach to dealing with detained foreign women and children who are accused of affiliation with the Islamic State (also known as ISIS), Human Rights Watch said today. Since January, Iraq has proceeded with rushed trials against foreigners on charges of illegal entry and membership in or assistance to ISIS without sufficiently taking into account the individual circumstances of each case or guaranteeing suspects a fair trial.

Most foreign women are being sentenced to death or life in prison. The Iraqi justice system is also prosecuting foreign children, ages 9 and up, on similar charges, and sentencing them in some cases with up to five years in prison for ISIS membership and up to 15 years for participating in violent acts.

“Iraq’s ‘one size fits all’ approach to women who traveled to live under ISIS or to children whose parents brought them along is producing unjust outcomes in many instances,” said Nadim Houry, Terrorism/Counterterrorism director at Human Rights Watch. “Iraqi justice should take into account their individual circumstances and actions and give priority to prosecuting the most serious crimes while exploring alternatives for lesser ones.”

Human Rights Watch attended the trials of seven foreign women and three foreign children. Human Rights Watch also spoke with relatives of detainees and some of the lawyers representing them, and reviewed media reports of trials of at least 72 foreign women. The prosecuted women are from a number of countries, including, Turkey, Russia, France, Germany, Azerbaijan, Tajikistan, and Trinidad and Tobago.

Most of the foreign women and children held in Iraq belong to a group of more than 1,300 foreigners detained by Iraqi forces last August during the battle for the ISIS stronghold of Tal Afar in the northwest of Iraq. A security source told AFP news agency that the group was composed of 509 women and 813 children, though the overall number of foreign women and children in detention is believed to be higher based on information from sources close to the penitentiary system in Baghdad.

In September, Prime Minister Haider al-Abadi stated in an interview that most of the women and children were not guilty of a crime, and that his government was “in full communication” with their home countries to “find a way to hand them over.” But Iraq appears to have changed its approach and starting in January 2018, proceeded to prosecute women and children ages 9 and up. Meanwhile, the women and children are detained in overcrowded conditions.

A relative of one woman held with her 2-year-old child for months in an airless leaking cell near Mosul with about 25 other women said: “The food they were getting was barely enough to keep them alive. Many were sick but no doctor ever came to see them. One of [her fellow] inmates gave birth right in the cell.”

Despite several requests from Human Rights Watch, Iraq has not issued any statistics about how many trials of foreigners it has conducted.

In accordance with Iraqi law, suspects have access to a defense lawyer and a translator is provided, though in many instances the translator was without any qualification and was chosen from people in attendance. However, opportunities for a meaningful and substantive defense were lacking in the cases reviewed by Human Rights Watch. Lawyers told Human Rights watch that they rarely have access to their clients before the hearings and in the cases monitored, judges were quickly dismissive of the defendants’ arguments, including their claims that they had simply followed their husbands or had been coerced to and had not supported or officially joined ISIS.

Human Rights Watch is not in a position to assess the veracity of these claims and recognizes that some women may have contributed to abuses perpetrated by ISIS. However, judges should ensure that the defendants and their representatives are able to prepare and present all evidence in their defense, including the individual circumstances through which they ended up in Iraq and examine what their contribution was – if any – to ISIS abuses.

The lack of opportunities for a substantive defense, the broad nature of the charges, and the speed with which the trials are conducted, indicate that these trials fall short of fair trial standards. In addition, disproportionately lengthy prison terms may violate the prohibition on cruel and inhuman punishment. Assuming imprisonment is warranted in a particular case, the question of proportionality turns then on the length of the sentence. Prison sentences should take into account the seriousness of the offense and the culpability of the offender.

Membership in an illegal group, especially one responsible for war crimes and crimes against humanity, could warrant severe sentences, but in the cases monitored by Human Rights Watch Iraqi authorities did not seem to sufficiently examine what drove a particular person to travel to ISIS territory or the actual role – if any – of these women in the organization. In this context, sentencing women to 20 years in prison or the death penalty merely because they traveled to live under ISIS, married an ISIS fighter, or received a monthly stipend from ISIS for the death of their husband risks violating the principle of proportionality. Human Rights Watch opposes the death penalty in all cases.

Some of the foreign children prosecuted may have been responsible for acts of violence while simultaneously being victims of ISIS themselves. International juvenile justice standards call on national authorities to make efforts to seek alternatives to prosecution, and to prioritize rehabilitative measures with the aim of reintegration of children into society. Authorities should incarcerate children only as a measure of last resort and for the shortest appropriate period. In 2007, the UN Committee on the Rights of the Child found holding children criminally responsible below the age of 12 “not to be internationally acceptable.”

Particularly troubling is Iraq’s approach to children who are only accused of membership in a group like ISIS and not of any specific violent act. In 2016, the UN secretary-general criticized countries that respond to violent extremism by administratively detaining and prosecuting children for their alleged association with such groups. His special representative for children and armed conflict has also stated that child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities.”

The Iraqi authorities should prioritize prosecuting those responsible for the most serious crimes while seeking alternatives to prosecution for those who may have traveled to join or live under ISIS under constraint or who personally harmed no one in Iraq, Human Rights Watch said. Alternatives might include reparation, community service or participation in national truth-telling processes. In dealing with children, the authorities should focus on rehabilitation rather than punitive measures.

Iraq is responsible for ensuring the safety and basic rights of women and children in its custody. But their home countries’ and other foreign embassies should encourage Iraqi authorities to ensure that all defendants, including the countries’ own nationals, have a fair trial with due process rights and are not sentenced to death.

Iraq should develop a national strategy that prioritizes the credible prosecution of those responsible for the most serious crimes and the international community should support programs to provide alternatives to detention and prosecution, including rehabilitation and reintegration programs for children suspected of ISIS affiliation.

Iraq should prosecute child suspects only as a measure of last resort and with the purpose of any sentence being to rehabilitate and reintegrate the child into society. Those brought by their parents to Iraq should not be prosecuted for illegal entry if they had no choice in the matter. The authorities should also drop prosecutions for children for mere affiliation with ISIS if they did not commit any other crime themselves.

Sentences should be proportionate to the crimes committed. The broad prosecution under terrorism charges of all those affiliated with ISIS in any way, no matter how minimal, could lead to unfair results and ultimately dilute responsibility for the horrible crimes committed by ISIS.

“Under Iraq’s current approach, those who killed for ISIS are basically getting the same sentence as those who simply married ISIS members and had children,” Houry said. “Such an approach does not advance justice nor does it advance victims’ rights. Iraq should change tack.”

Prosecution of Foreign Women
Iraqi criminal proceedings involve a two-stage process. An investigative judge conducts an investigative hearing and then refers the case to trial before a three-judge panel. In the cases monitored by Human Rights Watch of those charged in connection with ISIS crimes, victims of ISIS did not attend trials and played no role in the proceedings.

The trials before the panels that Human Rights Watch attended lasted less than 10 minutes, with the presiding judge asking the defendant the same set of questions about when and how they entered Iraq, where their husband is, if they believe in ISIS ideology, and if they received any money from the extremist group.

Sentences are issued on the same day as the trial. Almost all cases reviewed ended with a life sentence, which in Iraq amounts to 20 years in jail, or the death penalty. Human Rights Watch has not been able to confirm if Iraq has carried out any of the death sentences issued against foreign women.

As required by Iraqi law, the women are represented by a lawyer, who is usually appointed by the court. However, lawyers told Human Rights Watch that they rarely have access to their clients before the hearings. Some said they did not have access to the evidence against them. In all trials that Human Rights Watch attended, the role of the lawyer was marginal and in no case did the lawyer’s arguments or evidence appear to have an impact on the outcome.

The presence of translators is required under Iraqi law if the defendants do not speak Arabic, but the qualifications of the translators varies greatly. Some consulates provide translators when their nationals are being tried. But in other cases, translators are ad hoc. In one trial of a woman from Trinidad and Tobago for which Human Rights Watch received information, the court relied on the translation of a journalist in attendance. In another, the court relied on a local Iraqi man who knew Persian and who happened to be in the courthouse that day on other business. When no translator is available, proceedings are postponed and women are sent back to jail.

In none of the cases Human Rights Watch reviewed or attended did the judge ask the women about specific violent actions or their participation in supporting abuses or violations by ISIS. In all the cases, judges were quickly dismissive of the women’s claims that they had simply followed their husbands, or had been coerced and had not supported or officially joined ISIS. However, in some cases, such claims appear to have swayed the court to impose a life sentence as opposed to the death penalty.

Many relatives of detainees told Human Rights Watch that their relatives had simply followed their husbands, or in some cases were compelled to do so. A Russian woman whose sister is on trial in Iraq said:

My sister’s only fault is that she fell in love when she was just 19. A young silly girl. She didn’t know a thing. She left home, married the man she was in love with, and then, he took her to Syria. He told her that he knew better [than her] and that as his wife, she had to follow him wherever he went. When she first called me she was crying, she wanted out – but she was helpless, she had no documents, nothing. I wanted to come and get her. I tried. But by that time, the border was no longer open.

Human Rights Watch is not in a position to assess the veracity of these claims. However, judges should ensure that the defendants are able to present such evidence at trial. Iraqi authorities have told Human Rights Watch that they do not have the capacity to carry out such investigations but judicial requests for cooperation to these women’s home countries could assist in overcoming logistical challenges.

Prosecution of Foreign Children
In Iraq, children can be held criminally responsible for their actions from the age of 9. Children accused of affiliation with ISIS are tried before the same criminal court reviewing terrorism cases for adults. However, according to a local lawyer, their cases are heard in a chamber within this court that specializes in juvenile justice.

A lawyer who has represented many foreign children accused of terrorism in Iraq summarized the situation:

For children between the ages of 9 and 13, the courts are more lenient, though you can still be prosecuted for illegal entry and in some cases, for membership in ISIS. If you are just prosecuted for illegal entry, your sentence is usually between six months and one year. For membership, you get three to five years. If you are accused of participating in a violent act, like planting a bomb, then you can get between five and 15 years.

He said that Iraq has conducted about 400-500 trials of children accused of affiliation with ISIS, including dozens of cases of foreign children, who are also being charged with illegal entry into the country. Human Rights Watch attended the trials of two children from Azerbaijan, ages 13 and 14. Both were sentenced to six months in jail for entering the country illegally even though they were respectively 10 and 11 when their parents brought them to Iraq and said they had no choice in the matter. The 13-year-old had not seen his mother in five months.

Older children are subject to harsher sentences. An Iraqi court sentenced a 16-year-old German national whose case garnered much media attention, to six years in jail – five years for ISIS membership and one year for entering Iraq illegally.

Detention Conditions
Foreign children under age 3 are usually kept in jail with their mothers in often overcrowded cells. Those between 3 and 9 are usually separated from their detained mothers and put in foster institutions run by the Iraqi state. Those between 9 and 18 are held in juvenile detention facilities, a lawyer following the cases told Human Rights Watch. Foreign orphans are kept in local orphanages. Some foreign children have been transferred to their home countries while many others are still waiting to be transferred.

While Human Rights Watch has not been able to visit detention facilities, it received multiple reports about overcrowded conditions at the prisons where the foreign women and children have been held since they surrendered to Iraq forces in August 2017.

Posted: January 1, 1970, 12:00 am

Your Excellencies,

I am writing on behalf of Human Rights Watch to express our concerns regarding the amended Eradication of Criminal Acts of Terrorism Law (the “CT Law”) that the Indonesian parliament passed on May 25, 2018, which amends the 2003 law. The amended law was enacted following the horrific Surabaya suicide bombings on May 13-14, 2018.

We wish to express our condolences to the victims of those attacks and their family members. We recognize that those incidents underscore that the Indonesian government has a responsibility to keep those under its jurisdiction safe, and that the new statute includes some improvements from the previous law. However, certain aspects of the new CT Law risk undermining key human rights protections and ultimately weaken efforts to counter armed threats from extremists.

Human Rights Watch is particularly concerned about the following elements of the CT Law:

1. Overbroad Definition of Terrorism
The new CT Law relies on an overbroad and ambiguous definition of terrorism. Article 1(2) defines terrorism as any act that uses “violence or threat of violence to create a widespread atmosphere of terror or fear, resulting in mass casualties and/or causing destruction or damage to vital strategic objects, the environment, public facilities, or an international facility.” Article 1(4) defines “the threat of violence” as including any “speech, writing, picture, symbol or physical, with or without the use of electronic or non-electronic form which may incite fear in a person.”

While there is no internationally agreed definition of terrorism, the definition in the new CT Law goes far beyond the definition endorsed by the United Nations special rapporteur on human rights and counterterrorism, which defines terrorism as “an act committed with the intent to kill, cause serious bodily injury, or take hostages with the aim of intimidating or terrorizing a population or compelling a government or international organization.”

Human Rights Watch’s research has shown that prosecutors in dozens of countries have used similarly broad counterterrorism laws to prosecute acts of political dissent that result in property damage, such as demonstrations. In Indonesia, we are concerned that the broad definition of terrorism could be used to target peaceful political activities of indigenous groups, environmental advocates, and religious or political organizations.

We urge you to do the following to avoid human rights violations linked to overbroad definitions of terrorism under the CT law:

  • Ensure that the CT Law’s implementing regulations provide a much narrower and specific definition of terrorism and terrorist activities that mitigate the dangerously ambiguous definition in the law.
  • Ensure that police and prosecutors apply the law in a way that does not infringe on protected rights and freedoms by only prosecuting acts that qualify as “genuinely of a terrorist nature,” as set out by the UN special rapporteur on human rights and counterterrorism.

2. Lengthy Pre-Charge and Pre-Trial Detention Periods
Article 28 of the CT Law extends the period that police can detain terrorism suspects without charge from three days in the 2003 law to a maximum of 21 days. That compares to a 24-hour period that police can detain suspects for non-terrorism-related crimes.

Article 25 of the CT Law permits the prosecutor to extend pre-trial detention for terrorism suspects from a maximum of 180 days under the 2003 law to 240 days, or up to 290 days with approval of the chief magistrate of the district court.

Prolonged detention without charge, particularly when coupled with restrictions on detainees’ ability to challenge that detention in court, creates conditions conducive to torture and other ill-treatment that will go unnoticed by the courts and unsanctioned by law. The insertion in article 28(3) that the arrests and detention of the suspect during the pre-charge phase will be done in accordance with the “principles of human rights” is welcome, but will do little in guaranteeing the rights of suspects.

Prolonged pre-charge detention, particularly when not authorized by a judge, may also violate the right to liberty under international law. The International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is party, states that anyone arrested or detained for a criminal offense “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.” Furthermore, anyone deprived of their liberty by arrest or detention has the right to “take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

The UN Human Rights Committee, an international expert body that monitors state compliance with the ICCPR, has explicitly interpreted this provision to apply to “all persons deprived of their liberty by arrest or detention,” including persons held in pre-charge detention. The committee has increasingly interpreted prompt appearance before a judge to be within 48 hours.

We urge you to take the following step to address these lengthy pre-charge and pre-trial detention periods:

  • Urge parliament to promptly amend the CT Law so that all those taken into custody are brought before a judge within 48 hours to be formally charged and able to contest the basis for their detention.

3. Anonymous Witnesses in Terrorism Prosecutions
Article 34A of the CT Law states that “witnesses, experts, and rapporteurs” in terrorism prosecutions will be provided protection including “confidentiality of identity.” While the authorities may take measures to protect witnesses, international law requires that prosecutors allow suspects to adequately defend themselves, including by calling and examining witnesses.

We urge you to seek amendments to article 34A that would:

  • Ensure that any measures taken to protect the security of witnesses do not infringe upon the right of defendants to have a proper opportunity to question and challenge witnesses against them at some stage of the proceedings.
  • Ensure that any concealment of witnesses’ identities is limited to cases where the measure is shown to be necessary and justified by serious and objective reasons.

4. Overbroad Surveillance Powers
Article 31 of the CT Law allows Indonesian authorities to “open, examine, and confiscate mail and packages by post or other means of delivery … and intercept any conversation by telephone or other means of communication suspected of being used to prepare, plan, and commit a Criminal Act of Terrorism.” These provisions could potentially be used to authorize massive, disproportionate surveillance that violates privacy rights.

To prevent possible massive, disproportionate surveillance, we urge you to:

  • Ensure that all surveillance powers are fully set out in clear, publicly accessible laws. Those laws should include safeguards for ensuring the surveillance is strictly necessary and proportionate, and should specify, for example, the nature and scope of the surveillance, the standards and procedures for surveillance requests and approvals, the circumstances under which a government agency may share surveillance data with others, how and for how long the surveillance data will be stored, at what point individuals will be notified that they were monitored, and a system of effective remedies for any abuses. Vaguely worded, potentially broad provisions are not sufficient.
  • Ensure that this law cannot serve as a basis for mass surveillance. Surveillance should be limited to what is strictly necessary for achieving a legitimate aim, such as preventing or investigating serious crimes. Any interceptions should be as targeted as possible and should use the least intrusive means available.
  • Ensure that the monitoring is proportionate. The government should reconsider the yearlong duration of these orders and impose much more limited periods of surveillance; a year of surveillance may capture very large amounts of data and be extremely revealing of sensitive aspects of personal life.

5. Deployment of Indonesian Armed Forces in Counterterrorism Operations
Article 43 of the CT Law specifies that the Indonesian Armed Forces (Tentara Nasional Indonesia, TNI) may be deployed in “combating acts of terrorism.” The passage of the new law coincides with the establishment of the military Joint Special Operations Command (Koopsusgab), which involves the army special forces, the marine corps, and the air force’s special corps.

The deployment of armed forces in response to domestic security threats may be justified in certain cases. However, extended military deployment in a civilian policing context is undesirable and carries serious risks.

Military personnel are trained and traditionally deployed to neutralize an enemy force through lethal force during times of armed conflict in which the international laws of war apply. Their training typically does not significantly involve law enforcement operations. Policing operations, in contrast, are bound by international human rights law, which restricts use of force to the minimal amount necessary to keep order, and to use lethal force only when there is an imminent threat to human life.

In addition, accountability for abuses by the military in Indonesia remain the sole jurisdiction of Indonesia’s military courts. Human Rights Watch has repeatedly expressed concerns that the Indonesian military justice system lacks transparency, independence, and impartiality, and has failed to properly investigate and prosecute alleged serious human rights abuses by military personnel.

The CT Law specifies that the details regarding the involvement of the military in counterterrorism operations will be stipulated in a Presidential Regulation. We urge you to take the following steps to prevent and appropriately respond to abuses by the military during counterterrorism operations:

  • Ensure the Presidential Regulation restricts participation of military forces in counterterrorism operations where involvement of the military is strictly necessary and proportionate. It should include specific provisions that limit the scope, levels, and duration of the military deployment.
  • Ensure that military troops deployed in counterterrorism operations have appropriate training in law enforcement and abide by the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which apply to all security forces outside of armed conflict situations.
  • Coordinate with parliament to establish a body within the Indonesian House of Representatives tasked to monitor the application of the CT Law in line with respect for international human rights standards, and to monitor military actions as well as those of the police in accordance with international human rights law.
  • Ensure the House of Representatives monitoring team can investigate any alleged abuses committed by military forces.
  • Seek legislation that would allow for the prosecution of military personnel who commit serious human rights violations in the civilian courts.

6. Expanded Application of the Death Penalty
The 2003 CT Law permitted imposition of the death penalty against “anyone who commits violence or threatens violence that takes ‘massive casualties’ or destroying strategically vital objects, using chemical or biological weapons, transferring illegally any firearms or explosives into Indonesia to be used for ‘terrorism acts’ and for any person who masterminds those actions.” The amended CT Law also allows the death penalty for anyone “who intentionally incites others to commit a criminal act of terrorism.”

International human rights law discourages the use of the death penalty and mandates that it only be applied to the most serious crimes, such as those resulting in death or serious bodily harm. The new CT Law would allow the death penalty to be carried out for crimes that did not reach this level of grievousness.

In 2008, the UN General Assembly adopted a resolution entitled “Moratorium on the use of the death penalty,” which 104 states voted in favor of. Human Rights Watch opposes the death penalty in all circumstances as cruel and inhuman punishment, one that is plagued with arbitrariness, prejudice, and error wherever it is applied.

We urge you to take the following steps to address the human rights implications of the expanded application of the death penalty:

  • Impose a general moratorium on the death penalty until such time that capital punishment can be banned in Indonesia.
  • Encourage parliament to remove the death penalty from the 2018 CT Law.

7. Problematic Aspects of Measures to Protect Victims of Terrorism
Articles 35 and 36 of the new CT Law provide expanded measures to protect and assist victims of criminal acts of terrorism, including through the provision of medical, psychosocial, and psychological rehabilitation; restitution to the family in the event of death; and compensation. The law also formalizes the involvement of Indonesia’s Witness and Victim Protection Agency (Lembaga Perlindungan Saksi dan Korban, LPSK)—an independent body established in 2006 that has been providing financial compensation and rehabilitation programs to victims of crimes.

Support for victims of terrorism is included as a key component of the 2006 UN Global Counter-Terrorism Strategy. It is evoked in section I, which encourages national systems of assistance, and section IV, which urges governments to promote and protect the rights of victims. The UN Office on Drugs and Crime report on good practices emphasizes that “the enactment of legislation on the rights of victims contributes to empowering victims of terrorism and is in itself an effective message against violent extremism and terrorism,” and creates goodwill among the general population.

8. Ensuring Preventive Measures Do Not Violate Human Rights
The new CT Law stipulates that the government should adopt measures to prevent “criminal acts of terrorism,” and appoints Indonesia’s National Counter-Terrorism Agency as the lead agency in such efforts.

The law also provides for the establishment of a national terrorism alert system, counter-radicalization projects for individuals and groups vulnerable to radicalization, and a deradicalization program for prisoners accused of “criminal acts of terrorism.”

The details of such measures are left for future government regulations.

Coordinated national efforts to stem extremist attacks need to comport with international human rights standards. They should not infringe on the rights of individuals to freedom of religion, belief, opinion, or expression that is nonviolent. Participation in so-called deradicalization programs may only be required as part of a sentence upon conviction for a recognizable criminal offense.

We urge you to ensure that international human rights standards are upheld in drafting relevant implementing regulations on preventing criminal acts of terrorism, and that you:

  • Consult with nongovernmental organizations who represent members of affected groups to minimize possible discriminatory regulations.
  • Seek to ensure that the regulations do not exacerbate existing grievances and thus increase the likelihood of violent extremism.

We would be happy to meet with you as well as officials involved in these issues to discuss these matters further.

Sincerely,

Brad Adams
Asia Director
Human Rights Watch

CC:
Dr. Hatta Ali, Chief Justice of the Supreme Court
Dr. Anwar Usman, Chief Justice of the Constitutional Court
Air Chief Marshal Hadi Tjahjanto, Commander of the National Armed Forces
Gen. Tito Karnavian, Chief of the National Police
Muhammad Prasetyo, Attorney General

Posted: January 1, 1970, 12:00 am

A counterterrorism police officer stands guard during a security sweep in Jakarta, Indonesia, February 16, 2018.

© 2018 Reuters

(New York) – The Indonesian government should seek to amend provisions in the newly enacted counterterrorism law (“CT Law”) that threaten human rights protections, Human Rights Watch said in a letter sent on June 11, 2018, to President Joko “Jokowi” Widodo and other officials.

After suicide bombings by attackers aligned with the Islamic State in the city of Surabaya in May, Indonesia’s parliament on May 25 approved long-pending revisions to the CT Law. While the new law contains some improvements, it risks undermining human rights and could weaken efforts to counter extremist threats.

“The Indonesian government’s counterterrorism measures should not come at the expense of fundamental rights,” said Brad Adams, Asia director. “The new counterterrorism law has provisions that will facilitate rights violations by authorities and ultimately undermine public safety.”

The new law relies on an overbroad and ambiguous definition of terrorism. The definition could be used to target peaceful political activities of indigenous groups, environmental advocates, and religious or political organizations.

The CT Law also allows for prolonged pre-charge and pre-trial detention that increases the likelihood of torture and other ill-treatment in custody. It extends the period that police can detain terrorism suspects without charge from three days in the 2003 law to a maximum of 21 days. And it permits prosecutors to unilaterally extend pre-trial detention for terrorism suspects from 180 days to 240 days.

The new law has provisions that will facilitate rights violations and ultimately undermine public safety.

Brad Adams

Asia Director

The law empowers authorities to “open, examine, and confiscate mail and packages by post or other means of delivery … and intercept any conversation by telephone or other means of communication” suspected of being used for planning or committing terrorist acts. These provisions could be used to authorize massive, disproportionate surveillance that violates privacy rights.

The new law also expands counterterrorism enforcement activities to the Indonesian armed forces. While the deployment of armed forces in response to domestic security threats may be justified in certain cases, extended military deployment in a civilian policing context carries serious risks, in part because military personnel typically do not receive law enforcement training. In addition, the Indonesian military justice system has an egregious track record investigating and prosecuting human rights violations by military personnel.

“The Indonesian government should recognize that violating human rights in the name of counterterrorism merely benefits armed extremists over the long term,” Adams said. “The government should act to revise the counterterrorism law so that it meets international standards.”

Posted: January 1, 1970, 12:00 am

A Romanian journalist walks past a building on the Mihail Kogalniceanu Airbase, 250km (155 miles) east of Bucharest, cited as a possible location for the transfer of terrorist suspects by the CIA. December 19, 2005.

© Reuters/Bogdan Cristel

(Paris) – The European Court of Human Rights on May 31, 2018, issued two key judgments that underscore the ongoing impunity for European complicity with US Central Intelligence Agency (CIA) counterterrorism abuses, Human Rights Watch said today.

The court ruled that Lithuania and Romania had violated their human rights obligations for their part in the rendition, secret detention, and torture and ill-treatment of two terrorism suspects. The court also highlighted the serious deficiencies in the national investigations and urged both countries to conclude their investigations into their involvement in the rendition program without delay and to identify and punish relevant officials.

“The European Court’s rulings highlight that European officials have never faced the music for facilitating the CIA’s illegal torture and rendition program,” said Nadim Houry, terrorism/counterterrorism director at Human Rights Watch. “The lack of accountability, mirrored in the US with the approval of an official involved in the rendition program as the new CIA director, leaves the door open for a return to these illegal practices.”

The rulings came in the cases of Abu Zubaydah v. Lithuania and Al-Nashiri v. Romania. The European Court found that both countries had hosted secret CIA prisons and that they knew the CIA was using their territory for renditions and secret detention and that “the extremely harsh [CIA] detention regime” on their territory violated the prohibition of torture. Both men are in US custody at Guantanamo Bay. Abu Zubaydah has never been charged with a crime while al-Nashiri faces charges for his alleged role in bombing a US warship off the coast of Yemen in 2000.

Following the attacks on the United States on September 11, 2001, the CIA operated a global, state-sanctioned program in which it abducted scores of people throughout the world, held them in secret detention – sometimes for years – or “rendered” them to various countries, and tortured or otherwise ill-treated them. While the program officially ended in 2009, the cover-up and impunity for these crimes is ongoing.

Neither the US or any of the numerous countries that assisted in this illegal program have adequately accounted for these abuses. Gina Haspel, the new CIA director, reportedly ran a secret CIA “black site” in Thailand – where both al-Nashiri and Abu Zubaydah were held prior to being transferred to other CIA detention centers – and facilitated the destruction of 92 videotapes of torture that occurred there.

Romania and Lithuania are not the only European countries implicated in the CIA renditions program. The European Court has already condemned Poland for its role in the rendition, detention, and torture of both of these men, Macedonia for its involvement in the CIA’s abduction and illegal transfer of Khaled Al-Masri, a German citizen, and Italy for its role in the abduction of Hassan Mustapha Osama Nasr, an Egyptian cleric better known as Abu Omar, to Egypt.

There is also credible evidence from the United Nations, the European Parliament, and Council of Europe that many other European countries – including Denmark, Finland, Germany, Ireland, Spain, Sweden, and the UK – were involved to various degrees. The UK recently made a formal apology to two Libyan nationals in whose rendition it was involved, and Sweden has apologized to and compensated two Egyptian nationals for its involvement in their rendition.

Of these, only Italy has prosecuted anyone in relation to the program – convicting two Italians and, in absentia, 23 US agents for abducting the Egyptian cleric.

The European Court gave short shrift to the investigations and related diplomatic efforts by Lithuania and Romania over its role in these cases. The Lithuanian prosecutor-general’s office opened a criminal investigation in January 2010 following a parliamentary inquiry that confirmed the existence of two black sites and that Lithuanian airports and airspace had been used for CIA-related flights. One year later, the case was abruptly closed for lack of evidence.

Following the release of the US Senate summary of the still classified 6,700-page report documenting the CIA’s detention and interrogation program, the prosecutor general’s office claims to have sent a formal request for legal assistance to US authorities. In April 2015, it announced it was reopening its investigation, which remains ongoing.

Romania opened a criminal investigation in 2012 following a complaint by al-Nashiri but it is still pending and no information has been made public. A parliamentary inquiry that began in December 2005 and concluded in March 2007, found no evidence of a secret CIA prison, illegal prisoner transfers, or Romanian involvement in the CIA’s program. The European Court raised concerns in paragraph 651 of its judgment that the delay in the investigation meant that crucial flight data had been erased.

The European Court found that the Lithuanian and Romanian investigations had been ineffective and urged both countries to conclude their investigations without delay and to hold to account any officials identified as responsible.

It also ordered Romania to seek assurances from the US government in al-Nashiri’s case that his trial in the US would not result in the death penalty. Each man was awarded 100,000 Euros in damages.

“With accountability efforts stalled in the US, it is more important than ever to have a renewed push for accountability on this side of the Atlantic,” Houry said. “Ignoring the abuses of the past or procrastinating their prosecution risks making them a reality of the present.”

Posted: January 1, 1970, 12:00 am