“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

Armed forces allied to internationally recognized government fight with armed group in Tripoli, Libya September 22, 2018. 

© 2018 Hani Amara/Reuters

(Geneva) – Unaccountable and violent armed groups maintain a stranglehold on Libya, while civilians pay the price in the divided country, Human Rights Watch said today in its World Report 2019. Libyan authorities should prioritize justice sector reform and establishing accountability, particularly for members of armed groups.

Seven years after the end of the 2011 revolution in Libya that ended the rule of the strongman Muammar Gaddafi, Libya has two competing governments that have been unable to reconcile. They contest control over territory, institutions and resources, while armed groups linked with them unlawfully kill, forcibly disappear, torture, and arbitrarily detain people and have forcibly displaced thousands. Government-aligned forces and militias have kept thousands of migrants and asylum-seekers in detention centers where conditions are inhumane and physical abuse is routine.

“Militias have been terrorizing both Libyans and migrants while no authority dares stand up to them and hold them to account,” said Hanan Salah, senior Libya researcher at Human Rights Watch. “Until this changes, prospects remain dim for holding free and fair elections.”

In the 674-page World Report 2019, its 29th edition, Human Rights Watch reviewed human rights practices in more than 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the populists spreading hatred and intolerance in many countries are spawning a resistance. New alliances of rights-respecting governments, often prompted and joined by civic groups and the public, are raising the cost of autocratic excess. Their successes illustrate the possibility of defending human rights – indeed, the responsibility to do so – even in darker times.

Protracted armed conflicts have hobbled key institutions in Libya, such as the judiciary, which functions only partially due to threats, harassment and attacks against judges, lawyers and prosecutors by militias. Where courts function, there are serious due process violations. In August, in one example, a Tripoli court sentenced in one mass trial 45 suspected former Gaddafi supporters to death and 54 others to five years in prison for the killing of protesters in 2011 despite allegations of serious due process violations.

Despite a mandate to investigate war crimes, crimes against humanity, and genocide in Libya since 2011, the International Criminal Court has only issued one arrest warrant since 2011, against a Benghazi-based commander affiliated with the Libyan National Army (LNA) forces, allied with one of the competing governments, who remains at large.

As a result of the conflicts, 200,000 people remain internally displaced. Thousands of families who fled clashes in Benghazi since 2014, and armed confrontations in Derna since May 2018 are unable to return to their homes or to reclaim their properties and livelihoods for fear of reprisals by LNA-linked groups who accuse them of supporting terrorism. Representatives from the cities of Misrata and Tawergha signed a peace accord in June that should have paved the way for the return of 48,000 people unlawfully displaced from Tawergha. But, only a few hundred have returned, due to the massive destruction and looting and ongoing security concerns and fear of reprisals.

Clashes between Tebu and Arab local militias in the south between February and June killed scores of civilians. In September, month-long clashes between rival militias in Tripoli left more than 100 people dead, including many civilians, according to the United Nations.

Although the extremist group Islamic State (ISIS) has controlled no territory in Libya since its ouster from Sirte in December 2016, it staged several deadly attacks that targeted civilians. In May, ISIS claimed an attack in Tripoli on the High National Elections Commission that resulted in the deaths of 12 people, some of them civilians.

Militias and government aligned armed groups harassed, detained, and attacked journalists and media professionals. Journalists reported that the Government of National Accord, the internationally recognized government, imposed restrictive measures against international journalists and TV networks, including by imposing government minders during visits to Libya and limiting access to officials and institutions, as well as migrant detention centers.

Posted: January 1, 1970, 12:00 am

A picture taken on July 26, 2018 shows Egyptian policemen stand guarding a street in the North Sinai provincial capital of El-Arish. 

© 2018 Khaled Desouki/AFP/Getty Images

(Beirut, January 17) – Egyptian authorities increasingly relied on counterterrorism and state of emergency laws to crush peaceful dissent during 2018, including by prosecuting journalists and human rights activists, Human Rights Watch said today in its World Report 2019.

President Abdel Fattah al-Sisi won a second term in March elections held in a largely unfree and unfair environment. And parliament issued a new set of severely restrictive media laws to silence the little remaining domestic criticism of his autocratic rule.

“Using counterterrorism as a guise to crush all forms of dissent could be Egypt’s hallmark of 2018,” said Michael Page, deputy Middle East and North Africa director at Human Rights Watch. “There’s simply not much room left to peacefully challenge the government without being detained and unfairly prosecuted as a ‘terrorist.’”

In the 674-page World Report 2019, its 29th edition, Human Rights Watch reviewed human rights practices in more than 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the populists spreading hatred and intolerance in many countries are spawning a resistance. New alliances of rights-respecting governments, often prompted and joined by civic groups and the public, are raising the cost of autocratic excess. Their successes illustrate the possibility of defending human rights – indeed, the responsibility to do so – even in darker times.

The Interior Ministry’s National Security Agency and the police carried out systematic and widespread enforced disappearances and torture of detainees. The Stop Enforced Disappearance independent campaign has documented 230 cases of enforced disappearance between August 2017 and August 2018.

Authorities placed hundreds of people and entities on the country’s terrorism list and seized their assets for alleged terrorism links without any hearing or proper due process.

In late January and February, security forces carried out a series of arbitrary arrests in an escalating crackdown against al-Sisi’s peaceful political opponents ahead of the presidential vote. The arrests included those who called for boycotting the process, such as the 2012 presidential candidate and the head of the Strong Egypt Party, Abd al-Moneim Abu al-Fotouh. He remains in pretrial detention despite a heart condition.

A wave of arrests in May included Hazem Abd al-Azim, a political activist; Wael Abbas, a prominent rights defender; Shady al-Ghazaly Harb, a surgeon; Amal Fathy, an activist; and Shady Abu Zaid, a satirist. Another series of arrests in August included a former ambassador, Ma’soum Marzouk, who called for a public referendum on whether al-Sisi should resign. In October and November, authorities rounded up at least 40 human rights activists and volunteers, several of whom were involved with the Egyptian Coordination for Rights and Freedoms, an independent organization. Authorities have disappeared the head of the group, Ezzat Ghoniem, since September.

Authorities also continued to prosecute scores of the country’s leading human rights activists and organizations in case 173 of 2011, known as the “foreign funding” case. The UN special rapporteur on the right to housing, who visited Egypt in September said that the government carried out home demolitions, arrests, to retaliate against citizens who cooperated with her team.

Egyptian courts sentenced scores of people to death in flawed mass trials during 2018 over alleged cases of political violence and terrorism links. Civilian and military appeals courts have upheld at least 51 of the death sentences. Additionally, authorities carried out at least 46 executions in different cases. The authorities prosecuted hundreds of civilians before both state security and military courts, neither of which meet minimum due process standards.

The restrictive Law 80 of 2016 on the construction of churches allowed, in 2018, for conditionally legalizing a small number of the churches that were operating without an official permit, but restrictions on church construction remain largely in place. The authorities forced 14 churches to close in 2018, the Egyptian Initiative for Personal Rights found.

Authorities held the first trade union elections in Egypt in 12 years in May, leaving the government-affiliated Egyptian Trade Union Federation (ETUF) effectively in control of the unions. Rights group said that the government excluded hundreds of candidates not aligned with the government.

In North Sinai, where government forces have been fighting an Islamic State-affiliated group called Sinai Province (Wilayat Sinai), the army committed flagrant abuses that amount in certain cases to collective punishment. Beginning in January, the army began the most intensive wave of home demolitions in Sinai in years, demolishing at least 3,600 homes and other buildings.

Egypt’s international allies continue to focus on cooperation on the issues of terrorism and migration, while rarely offer public criticism. United States President Donald Trump, during al-Sisi’s September visit to New York, said that al-Sisi has done “an outstanding job” in fighting terrorism.

Posted: January 1, 1970, 12:00 am
Video

Egypt: No Justice For Rab’a Victims 5 Years On

Egyptian authorities have failed to investigate or prosecute a single member of the security forces five years after their systematic and widespread killing of largely peaceful protesters in Rab’a Square in Cairo. Hundreds of protesters have been convicted under unfair charges in mass trials stemming from the protests.

(Beirut) – President Abdel Fattah al-Sisi of Egypt made several wrong claims in his appearance on January 6, 2019 on the “60 Minutes” TV show in the United States, Human Rights Watch said today.

Among his statements was that the Egyptian government holds no political prisoners, despite documentation that thousands of people have been arbitrarily arrested for their political activity in recent years. Al-Sisi also wrongly stated in the program broadcast on the CBS network that the killings of hundreds of anti-government protesters in Rab’a Square in Cairo in August 2013, which he oversaw as defense minister, were justified because there were “thousands of armed people.”

“President Al-Sisi’s misinformation is laughable, fools no one, and is a poor attempt to conceal serious abuses under his authority, including possible crimes against humanity,” said Michael Page, deputy Middle East and North Africa director at Human Rights Watch. “Several of his answers even contradicted the government’s own official statements.”

Al-Sisi sat for an interview with 60 Minutes journalist Scott Pelley several months ago, but the Egyptian Embassy in Washington later requested that 60 Minutes not broadcast the interview, CBS television said. Egyptian authorities also told Egyptian media not to cover the “60 Minutes” interview, the independent news website Mada Masr reported. No major mainstream media in Egypt have yet covered Al-Sisi’s “60 Minutes” statements.

In response to a question about the Human Rights Watch estimate that at least 60,000 people had been arrested in Egypt on political grounds, Al-Sisi stated, “I don't know where they got that figure. I said there are no political prisoners in Egypt.”

Since Al-Sisi effectively rose to power in July 2013 after ousting Egypt’s first elected president, Mohamed Morsy, Egyptian authorities have arrested and charged tens of thousands of political opponents. A law introduced shortly after Morsy’s ouster effectively banned all peaceful protests, and authorities have used it as a justification to arrest and prosecute thousands of protesters. Widespread arbitrary arrests and enforced disappearances have been a hallmark of Al-Sisi’s rule.

Between Morsy’s overthrow and May 2014, the independent Egyptian civil society initiative Wikithawra documented the arrest or prosecution of 41,000 people. In addition, 26,000 more may have been arrested in 2015 and 2016, lawyers and human rights researchers have said. The nationwide crackdown quickly widened to include scores of writers, journalists, artists, and political and human rights defenders for their peaceful criticism. Al-Sisi himself had said in June 2015 that “there are innocents in prisons.” He has issued presidential pardons for over 1,100 people, many of whom were arrested during peaceful protests.

The Egyptian authorities have released next to nothing on the number of prisoners in the country. But some statements to the media by officials have acknowledged at least 34,000 arrests in relation to the current crackdown.

The Egyptian government should publicly provide comprehensive figures about how many prisoners it holds and create an accessible database for families so that they can locate their imprisoned relatives, Human Rights Watch said. The database should also be accessible to lawyers and researchers.

The Interior Ministry supervises and runs all prisons in Egypt. However, thousands of detainees, especially those in pretrial detention, are held in police stations and unofficial detention sites. In October 2018, the interior minister’s assistant for prison supervision, General Zakaria al-Ghamry, said that over 115,000 prisoners have been released since 2014.

In May 2015, the government-sponsored National Council for Human Rights said in a report that prisons were 160 percent over capacity and police stations 300 percent over in the months following Morsy’s ouster. The overcrowding and poor detention conditions led to a “rash” of deaths in custody that Human Rights Watch documented.

In the “60 Minutes” interview, Al-Sisi also denied any wrongdoing for the systematic and widespread killing of largely peaceful protesters in Rab’a Square in August 2013 that he personally supervised as defense minister. In one day, security forces killed at least 817 people when they violently dispersed tens of thousands of pro-Morsy demonstrators who gathered to protest his forced removal by the army.

The incident was the biggest mass killing of protesters in Egypt’s history and one of the largest in the world in recent decades, and the killings probably amount to crimes against humanity. Security forces also engaged in several other incidents of mass killings of protesters before and after the Rab’a sit-in dispersal.

Al-Sisi’s said in the interview that thousands of protesters were armed during the Rab’a Square dispersal, which contradicts findings by Human Rights Watch. The claim also contradicts official statements by the Interior Ministry, which said it seized only 15 guns from the Raba’a protesters. Several years later, in an unfair mass trial of over 730 Rab’a protesters and Muslim Brotherhood leaders, authorities presented only 13 rifles and 36 birdshot guns as evidence.

In addition, several official statements and reports accused the police of using excessive force. The former prime minister who supervised the dispersal, Hazem al-Beblawy, said in 2014 that “anyone who committed a mistake … should be investigated.” An official government fact-finding report on the Rab’a Square dispersal, whose summary was published in November 2014, largely blamed the protesters for violence and casualties but also admitted that security forces failed to target only people who were armed.

“The president’s words are contradicted by the facts, from the Rab’a Square killings, to the number of journalists in prison today for simply doing their job,” Page said. “Al-Sisi’s blatant attempt at misinformation cannot stand up to the simplest scrutiny.”

Posted: January 1, 1970, 12:00 am

Cigarette burns cover the hands and arms of 18-year-old “Karim.” Kurdish authorities held him for 13 months.  He then returned home and was rearrested by authorities under Baghdad’s control, who tortured and held him for months.

 
© 2018 San Saravan

(Beirut) – Sunni Arab boys who serve prison time in Iraq’s Kurdistan region for Islamic State (also known as ISIS) connections risk rearrest after their release if they try to reunite with their families in areas controlled by Baghdad, Human Rights Watch said today. The problem stems from a lack of coordination between the separate judicial systems of the Kurdistan Regional Government (KRG) and the Iraqi government.

This situation currently only affects about two dozen boys who have been released after serving time on counterterrorism charges. But dozens more and hundreds of adults will soon be released from KRG prisons. The risk of rearrest means that they may not be able to return home and reintegrate into society. It may also clog up Iraq’s prisons and courts.

“The lack of coordination between Iraq’s two separate judicial systems has led to a risk of repeated prosecutions for the same crime,” said Lama Fakih, deputy Middle East and North Africa director at Human Rights Watch. “Right now, the situation largely affects boys who have served shorter sentences, but as Erbil starts releasing adults who have finished their sentence, they will face the same problem.”

In November 2018, Human Rights Watch interviewed four boys between ages 15 and 17 who had been arrested by the Kurdish Asayish security forces, convicted, and served sentences ranging from 2 to 14 months. None had returned home to their families, who are living in areas under the Iraqi government control. They said that they feared rearrest since they had heard that other boys who returned had been rearrested. One boy who was rearrested said that he was then tortured to confess ISIS affiliation by Iraqi prison authorities.

Each of Iraq’s two separate judicial systems have their own counterterrorism laws, which are applied in their courts. Sentences for terror charges have been significantly shorter in the Kurdistan courts than the Iraqi government courts, Human Rights Watch has found.

Historically, they had an information-sharing and transfer system. But judges from both systems have told Human Rights Watch that in recent years this system, has become less effective, particularly since the September 2017 referendum on Kurdistan region independence. A statement by the Iraqi government’s High Judicial Council on December 17 highlighted the need for better coordination and said that in November it ordered formation of a committee to improve coordination between the two judicial authorities. However, as far as Human Rights Watch has been able to determine, the committee has yet to start functioning.

As part of their campaign to defeat the ISIS, Iraqi and Kurdish security and military forces screen people leaving ISIS-controlled areas to detain those identified as ISIS suspects. They check names against “wanted” lists that security actors on both sides have developed since 2014. They compile the lists from a variety of sources, including public information about ISIS members, names published by ISIS itself, and names of ISIS suspects in their communities supplied by people fleeing ISIS-controlled areas or after the area was retaken by Iraqi forces.

Many families of detained ISIS suspects have told Human Rights Watch that neighbors or other people had put forward the name of a family member simply because of tribal, familial, land, or personal disputes.

People stopped at checkpoints, who are on the lists, face detention while officials investigate the allegation of their ISIS-affiliation. The prosecutions of those detained for ISIS affiliation in most cases rely solely on defendants’ confessions, based on information from numerous judges and lawyers, and Human Rights Watch’s own experience monitoring trials in Iraq.

Iraq’s constitution states that, “The accused may not be tried on the same crime for a second time after acquittal unless new evidence is produced.” According to two legal experts working as lawyers both in the Kurdish region and Baghdad, if a person has been convicted in one system of an offense and has completed their sentence, they cannot be tried again for the same offense anywhere in Iraq, even if new evidence has emerged. But because of the lack of coordination, it would be hard for prosecutors in one system to know whether evidence they find is new, or even whether a person they detained has served a sentence in the other jurisdiction.

Experts monitoring the situation of these boys told Human Rights Watch they knew of at least five boys who had returned home and were rearrested, but had no details about what happened to them. They said that the Asayish did not automatically give court or release documents to boys released from the Erbil Reformatory for Women and Children and that the boys needed to petition for these documents later through lawyers in a lengthy process if they wanted them.

The experts and reformatory staff also said that they also knew of many cases of the Asayish holding boys for months, then releasing them without charge. The experts said that because they were not charged, Kurdish authorities did not issue an official release certificate, as those are only issued for detainees who were brought before a judge. As a result, these boys are in an even worse situation because they have no documentation to prove they were released without charge.

In an email to Human Rights Watch on December 18, Dr. Dindar Zebari, the KRG coordinator for international advocacy, responded to concerns about the lack of coordination, saying that there has been coordination that had led to six transfers from Kurdish to Iraqi prisons. He did not respond to questions about the extent to which the judicial authorities on both sides are sharing information about acquittals and convictions, nor what documents detainees are being issued upon their release.

Human Rights Watch also wrote to Muhammad Tahir al-Mulhim, director of the human rights office within the Prime Minister’s Advisory Council, on December 12, raising the same concerns. He has yet to respond.

Judicial authorities should adopt specific policies and procedures to avoid repeated prosecutions for people who have been convicted and served their sentence for ISIS involvement, or acquitted. All forces making arrests should release all detainees who have already been exonerated or served a sentence for the same crime. Judicial authorities on both sides should start automatically sharing judicial paperwork in each case, including release certificates. They should ensure that all detainees are given release certificates upon their release, including those released without charge and remove their names from “wanted” lists.

All detaining authorities should redouble efforts to bring defendants before a judge within the legally mandated 24 hours, so that if they have served a previous sentence, they will be able to communicate this to a judge promptly and be released. Iraq should ratify the Optional Protocol to the Convention Against Torture and set up its own independent system to inspect detention centers.

“Baghdad and Erbil need to find a solution that puts the well-being of these children at its heart,” Fakih said. “Once these boys are released, they should be able to return home to their families, return to school, and reintegrate into society as quickly as possible.”

In November, Human Rights Watch interviewed seven boys and one young man age 18 with his family, all of whom have been detained by Asayish forces for ISIS affiliation. Three were still in detention while five were in various locations in northern Iraq. Human Rights Watch interviewed the detainees privately and was able to select the detainees it was allowed to interview. All of those interviewed gave their verbal consent to be interviewed and for the information to be used in a public report but said that their identities should not be revealed.

Unable to Return
“Abdullah,” 17, said he spent a year and two months in prison in Erbil and was released after serving his sentence. He is in the Kurdistan region, but doesn’t even want his family to visit him there, as he worries that if anyone finds out that he has been released from prison and has been in contact with his family, security forces in their area will arrest the family as punishment. “If I get rearrested,” Abdullah said, “I am sure I will get a sentence of 10 or 15 years.”

“Alaa,” 16, said he was released in June after serving a 14-month sentence in Erbil. He said he was afraid to return to his village because of the pro-government Popular Mobilization Forces (PMF), also known as the al-Hashd al-Sha'abi, which are part of Iraqi government forces. “Once they know I’m in the village, they will come and take me away…When someone hears I am there, they will track and find me.” He felt that his only options were to stay in a camp for displaced people or leave the country.

Human Rights Watch obtained information about over two dozen other boys who had been released and were in the same situation, with no clear solution before them on how to return home safely. Researchers interviewed three boys currently serving a sentence for ISIS-affiliation at the Erbil Reformatory for Women and Children, a prison facility for women and children, who said that they would not be able to return home to their families upon release, because they had heard from other boys about the risk of rearrest. One, age 17, said he was sure he would not be able to join his mother because he believed the PMF would arrest him. He was concerned that when he is released, the Asayish would directly hand him over to the PMF. Another, also 17, said:

I cannot go back to my village after I am released because I would get rearrested. I don’t think we can ever leave the Kurdistan Region because our situation is too difficult. If we go home, the PMF will come and arrest us again – there is no chance for us to go home safely.

Case of Rearrest
“Karim” is from a village near Mosul. He said he was arrested by Peshmerga, KRG military forces, at a checkpoint when fleeing his home in March 2016. He said they handed him over to Asayish, who held him for two days along with at least four other boys from his village who had fled with him, without providing any reason. Karim said they confiscated his identity card, and then transferred him to the Asayish headquarters in Erbil, where they interrogated him and he confessed to joining ISIS for one day.

He said that Asayish transferred him to the Erbil Reformatory for Women and Children and four days later took him before a judge, where Karim again said he had joined ISIS for a day. He was taken before an investigative judge in August 2016 and released in April 2017 without charge for lack of evidence, according to court documents he showed researchers. Asayish drove him to a camp near Erbil, where his uncle picked him up and drove him home.

He said that Asayish did not return his identity card, so 10 days after returning home to Iraqi government-controlled territory, Karim went to the area’s civil status directorate to get a new card. Officials there told him to get security clearance from the Interior Ministry’s local intelligence office. There officers said he was wanted for ISIS affiliation and arrested him. He said, “I told them I had served a sentence in Erbil and had a paper ordering my release. They said they don’t care, they don’t recognize the Kurdistan Regional Government.”

They held Karim in a prison under their control for 45 days, he said, in a cell of about four-by-five meters, housing 60 detainees, about 15 of them under 18. He said he was not allowed to leave the room except for interrogations or to use the toilet, with guards beating anyone who took more than a few seconds. They ate inside the cell and had no access to a doctor, he said. Human Rights Watch verified most of the same conditions when visiting the same facility.

Karim said that interrogators repeatedly beat him and hung him from his hands bound behind his back in a technique called the “bazoona.” He said this happened at least four times, each time for 10 to 15 minutes with a few minutes in between. While torturing him, they told him to confess to having joined ISIS for three days, which he finally did, after which they took him before an investigative judge, he said. He said the guards told threatened him with more abuse if he told the judge they had tortured him. He showed researchers the marks on his body.

Guards then flew Karim with a large group of other detainees down to Baghdad and held him at a prison at Baghdad International Airport. There again, he said, officers interrogated and beat him four times with plastic pipes before he was finally taken before a judge in December 2017. The judge ordered his release after he told the judge he had been tortured during interrogations and that he had already served a sentence in the reformatory in Erbil.

His mother who was present during the interview said:

He used to love school but now sits at home all day and doesn’t go to school because he is scared if he leaves the village, and security forces find him at a checkpoint they will arrest him yet again because his name has likely not been removed from the list of people who are wanted. He sits here so scared to be rearrested, and we have even had security forces come back since he was released to question him again. Meanwhile because of everything he has been through he has started lashing out against his siblings, and often hits them.

Legal Framework
Baghdad authorities are bringing charges against those suspected of ISIS affiliation under Iraq’s counterterrorism law (no. 13/2005). The law punishes anyone who committed, incited, planned, financed, or assisted a terror act that led to death, and gives a life sentence to anyone who covers up such an act or harbors those who participated.

The KRG passed its own counter-terrorism law (no.3/2006), to replace law no. 13/2005. It calls for the death penalty for anyone who committed an act of terror or joined, founded, coordinated, or cooperated with a terrorist organization, incited, planned, financed, or assisted in a terror act. It gives a life sentence to a range of criminal acts including causing destruction to a building, hijacking, kidnapping, or financing a terror attack. It further stipulates a sentence not exceeding 15 years for publishing terrorist propaganda and knowing of a terror act without notifying the authorities.

International standards
The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which Iraq acceded to on June 24, 2008, addresses the situation of children recruited into armed groups in the context of armed conflict, including terrorist and violent extremist groups. The protocol states that non-state armed groups shall not, under any circumstances recruit or use in hostilities children under 18 and calls on states parties to provide appropriate assistance for the physical and psychological recovery and social reintegration for children who have been recruited.

The Neuchâtel Memorandum on Good Practices for Juvenile Justice in a Counterterrorism Context provides specific guidance to governments regarding the treatment of children involved in terrorism activities. It urges countries to consider alternatives to detention, including diversion from the criminal justice system, and to develop rehabilitation and reintegration processes to aid the child’s successful reintegration into society.

Iraqi authorities should consider alternatives to detention and criminal prosecution for child detainees and develop rehabilitation and reintegration programs to aid their return to society.

Article 14 of the International Covenant on Civil and Political Rights, ratified by Iraq, states that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

Posted: January 1, 1970, 12:00 am

View from hill overlooking Ain Issa displacement camp in Syria, May 2018. 

© Human Rights Watch

Baraa Zayani, a 4-year-old Tunisian boy, has been held for the past two years in a militia-run prison in Libya. In 2016, a bullet tore through his stomach during clashes between armed groups that killed his father, a member of the Islamic State. He has had five operations and needs one more.

“We have asked every Tunisian authority we can think of to bring him home,” Baraa’s uncle, Moncef Abidi, told me last week in Tunis. “I keep begging them, ‘Save Baraa. He needs more surgery to survive.’ But nothing.” The Libyan authorities say that Baraa and his mother can go home, but Libya and Tunisia are deadlocked on terms, Abidi said.

Children like Baraa should be a top priority when the United Nations Security Council meets Thursday to review guidelines for countries whose citizens have joined transnational extremist armed groups such as the Islamic State (also known as ISIS).

More than 2,000 children and 1,000 women from more than 20 countries are estimated to be detained in Syria, Iraq and Libya because their fathers are known or alleged ISIS members. The family members come from countries as disparate as France, Russia and Tunisia. While many foreign spouses and offspring are being prosecuted for ISIS-related offenses – often in procedures that miserably fail fair trial standards – the majority have not been accused of any crime.

Most of these children, including infants and toddlers, are crammed with their mothers into overcrowded prisons and camps. Some are orphans. Many lack sufficient healthcare or food.

“My sister told me they suck on olive pits to stave off hunger,” Abidi said of Baraa’s mother Wahida, who is detained with Baraa in Tripoli’s Mitiga prison, notorious for ill-treatment and inhumane conditions.

Another Tunisian man said his daughter told him two of her children got sick from eating garbage in Roj, a camp controlled by Kurdish-led authorities in northeast Syria. Other family members in Tunisia told me that tents in the northeast Syrian camps leak in the rain or blow over in the wind. Schooling, they said, is almost non-existent.

Governments have repeatedly stalled on bringing home these children, even those with clear proof of citizenship, claiming that they may be future terrorists or that their returns will prompt a popular backlash.

Meanwhile, the plight of these children receives only one passing reference in the 2015 Madrid Guiding Principles, which were designed to help countries carry out binding UN Security Council resolutions to counter the foreign fighter phenomenon. The Security Council’s Counter-Terrorism Committee is expected to update these guidelines on Thursday.

As of now, only guiding principle 30 acknowledges the fate of these children, but it merely calls on UN member states to “develop and implement strategies for dealing with specific categories of returnees, in particular minors, women, family members and other potentially vulnerable individuals.”

Few national governments have developed such strategies, and fewer still have taken any action to help these children.

The most recent binding Security Council resolution on foreign fighters, adopted in December 2017, goes further than Madrid principle 30. It rightly notes that women and children related to armed extremists may themselves be victims of those family members and emphasizes the need for their “timely” reintegration and rehabilitation. But genuine rehabilitation cannot take place in squalid camps abroad, which one Western diplomat in Tunis described to me as “potential incubators” rather than deterrents of violent extremism. Nor is it as likely to succeed if these children are brought home without their mothers—an option that families in Tunisia told me their government has contemplated.

The Security Council should use Thursday’s Counter-Terrorism Committee meeting to begin swiftly amending the Madrid guidelines to spell out UN member countries’ human rights obligations toward child victims of armed conflict. These obligations, which are detailed in international treaties including the Convention on the Rights of the Child, as well as in recent guides by the UN and the Organization for Security and Cooperation in Europe, make clear that authorities should detain children only as a last resort and for the shortest appropriate period. They also make clear that countries should prevent children from becoming stateless, a risk for many of those trapped in Syria, Iraq and Libya. They note that children should not be separated from their parents unless it is in the child’s best interest and that they should be provided with education and health care.

The revised Madrid guidelines should also emphasize that countries should not punish children for the crimes of their parents. The same goes for spouses who committed no crime; many of these women contend their husbands threatened or duped them into joining or following them abroad.

Bringing these children home is a complex task. Some children were born in ISIS-held territory and lack identity papers that their home countries would recognize. In many cases, their governments do not have diplomatic relations with the governments holding them. These children are likely to be traumatized and will need counseling. Moreover, the prospect that some children or their mothers may pose a security threat should not be brushed aside.

But the biggest hurdle is home governments’ political will. Many children have birth certificates from their home countries. Other children’s identities could easily be established through DNA tests. And the children, along with their mothers, could be evaluated upon returning home and, if appropriate, monitored and, if necessary, prosecuted in line with international fair trial and juvenile justice standards. In such cases, however, children should not be prosecuted for membership in groups like ISIS absent evidence of violent acts.

The Security Council should add detailed human rights guidelines to the Madrid principles to address other abuses as well; for example, to protect activists and journalists who are unjustly prosecuted as terrorists in the name of security. The Security Council should also demand human rights benchmarks and review. But children and their mothers should not get lost in the mix.

“He is just a little boy,” Abidi said of his nephew Baraa. “Why should he be punished for the crimes of his father?”

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am
Across Iraq, there are men, women and children – perhaps over 100,000 if one extrapolates from statistics the government has issued on people detained on terror charges - that society has labeled “ISIS families.” In some cases, their fathers, husbands or sons are alleged to have picked up arms with the Islamic State (ISIS) when the group took control of their village. In other cases, a family member merely chose to keep showing up for work at their local hospital or government office once ISIS took control of the area in which they lived.

Graffiti that reads "Daesh (ISIS)," marks the home of relatives of an ISIS member in a west Mosul neighborhood, Iraq. 

© 2018 Private

Most of these families are living in camps that the international community built for families displaced by the fighting between Iraqi forces and ISIS between 2014 and 2017. Though these camps house “regular” displaced families as well, they have become de facto prisons for these so-called “ISIS families.” What happens to these people may be one of Iraq’s most significant obstacles to national security and future stabilization.

Over the last two years, I have visited over a dozen of these camps outside of Mosul, which ISIS took over in June 2014 and maintained control of for three years. The camps are run by a range of local and international humanitarian organizations. Since the fall of ISIS, most families with perceived ISIS affiliations have been told by their communities, tribal leaders, government offices, and even Iraq’s army that they are not welcome to return home, and these camps are being used to enforce such policies. I have seen security forces at the gate deny families their right to freely come and go, either for a simple hospital visit or to return home.

The root of the obstacles facing these families is something that on its face sounds somewhat benign: a security-screening regime.

Security officers have told me that when ISIS began taking territory, many Iraqi families fled those areas, and when they first came into contact with Iraqi or Kurdistan Regional Government security and military officials, gave them names of neighbors who they accused of taking up arms with ISIS. Forces that have a legal mandate to detain, hold and interrogate terrorist suspects, and even some that don’t, put these names on wanted lists -- without much coordination between them. This can lead to for possible rearrests of people already cleared by one group for release. They have been using these lists to hold people, including in unofficial prisons, and prosecute them, sometimes based on confessions extracted by torture.

Lawyers, as well as judges, that Human Rights Watch has spoken to across Iraq, say these lists create inherent problems because of the prevalence of common names -- for example, a name like Muhammad Ahmed. If it is flagged, it can lead to anyone in Iraq with that name getting arrested, sometimes multiple times. “Same name” cases are swelling prison and court numbers, according to senior judges in courts in Nineveh and Baghdad. Staff at several local companies and organizations have told me about recent internal disputes, where one employee has threatened to add a colleague to one of these wanted lists -- as this is proving to be an effective way of meting out personal or familial revenge.

In tandem with these roundups, everyone who needs to contact the government—for an identity card, passport, birth or marriage certificate, or simply to enter a courthouse, has to undergo a security screening to ensure they are not on one of these “wanted” lists. The families of people -- most of them men or boys -- on the lists, whether rightly or wrongly, routinely fail security screenings, particularly if they are unwilling to pay bribes to officials. Some are threatened with arrest, sometimes to lure in a relative on the list who isn’t already in custody.

A senior judge we interviewed in Mosul and a lawyer working at an international organization told us that the Interior Ministry has issued an order that says to get a security clearance, families of ISIS members must appear in court to provide information about the suspected person’s whereabouts and activities and “denounce” them- both of them saw the order. Lawyers who have tried to assist these families are being threatened and, in some cases, are even arrested themselves.

The family members who haven’t been arrested end up stuck in the camps. And, since most lack at least one important civil document, they are at risk of being arrested at checkpoints, and cannot get a job, or obtain a death certificate to inherit property, or dissolve their marriage.

In these camps, I have met women who tried to remain in their homes after Iraqi forces retook their neighborhoods, but were sent to these camps by military or security officials against their will. One elderly woman, Nawfa Hadi Hussain, told me she fled her home for a camp in March 2017, but returned that June, after neighbors said her house had been burned, with “ISIS” graffitied on the wall. She moved into a small side room that had not been destroyed with her daughter and granddaughter. In September, federal police came to the home, she said, claiming that neighbors had complained about their presence, as an “ISIS family,” because both of her sons had joined the group, and sent the women to a camp, which housed other families accused of ISIS ties.

Many of the families in the camp who are perceived as ISIS-affiliated have no male relatives with them. Hussain and other women detained with her told me that when they arrived, the male security officers confiscated the few identity documents they had, snuffing out any chance they might have had to return home at will.

I have seen three instances in which camp security officials from various military and security bodies verbally abused families for allegedly having a son who joined ISIS. I saw one yell at a woman, “Why didn’t you poison your son when you cooked him his dinner, once you knew he joined ISIS?” I have seen these same guards, armed with AK-47s, weave through the tents, intimidating and threatening women and children, in violation of the civilian and humanitarian character that are supposed to be found at such a camp. Camp management staff and men from the community have told the aid groups running the camps that more and more women are coming forward to report these men for pressuring them to have sex in exchange for small amounts of money.

An international aid group told me that at a camp in Anbar, it received reports that guards are demanding sex from women if they want to leave the camp to receive medical assistance, or even to visit their husbands in prison.

In the camp where Hussain is being held, armed security forces brutally beat a local lawyer who is living in the camp and working for an international organization that’s trying to help families get documentation so they can return home. Security forces later claimed to us that the lawyer was outside his tent after an 8:30 p.m. curfew. But even if there was a curfew, that is no justification for the abuse. Lawyers have told us they do not feel safe trying to help these families.

Out of desperation, some women confined in the camps have started divorcing their husbands or obtaining a death certificate, and remarrying men seen as “clean” so they will be allowed to leave. But such new marriages create complications, because these new husbands do not want to raise the women’s children. The children are seen as tainted by their fathers, and it is customary for children to remain with their fathers or paternal relatives if their mothers remarry.

Over the last month, I interviewed four grandfathers and an uncle who are the de-facto guardians of their sons’ or brothers’ children, in a camp near Mosul. The father of “Kareem,” told us that his son died in December 2016 in the town of Shirgat while it was in ISIS hands. Kareem’s wife “Hanaa,” 28, was left behind with three children, ages 3 to 9. He told us:

[Hanaa] left us three months ago to find a husband in Shirgat, so that she could return home. I don’t know anything about the new husband, all I know is that he refused to take in my grandchildren. [Hanaa] tries to visit them from time to time, but it’s not easy for her. I will take care of them until I die, but then what?

Another grandfather told us, “I will raise my grandchildren as my own.” But even when children are lucky enough to have relatives willing and able to step in and support them, forcing women to choose between remaining with their children in confinement or leaving them to be able to go home is a tragedy.

To make matters worse, families usually can’t get a valid birth certificate for children born in ISIS territory. So, they can’t enroll in school, even schools inside the camps. What will happen to these children as they grow up. “Ammar,” 47, told us he is raising his two grandsons after their mother was able to negotiate her way out of the camp six months earlier to find a new husband and remarry. She hasn’t visited her children since. His son, their father, went missing in Mosul two and a half years ago. He said:

“Neither of the boys have any identity papers, and I cannot get new documents for them, as their parents would need to be present to do that, and even then it would be really hard. What is the fate of my grandsons?”

The conditions in these camps are grim and getting worse, as international humanitarian aid for Iraq’s displaced is drying up. Families have told me the water they are given is so dirty that they are using stockings, rocks, and sand as makeshift filters. Suicide has become common in at least some of the camps, international monitors and camp management have told me.

The Iraqi government has sanctioned this camp detention policy, without any publicized national reconciliation strategy or plan to remove the obstacles facing these families and facilitate their safe and dignified return home, or local integration elsewhere in Iraq. The government also appears not to have developed a response to the sexual abuse and exploitation or to address the protection needs of the female-headed households. As far as we can tell, the government has also failed to set aside funds to provide services in the camps, as international funds taper off—and with them some of the oversight by aid groups.

It is hard to view this prison camp policy targeting families with perceived ISIS affiliations as anything but short-sighted, fundamentally destabilizing and criminal. It has echoes of policies in Iraq’s recent past, in the context of de-Baathification, which many feel may have contributed to the rise of ISIS.

Iraq’s new government will take office in the coming weeks and will need to urgently engage in planning to release all families being held against their will, and to open reconciliation discussions at all levels to bring communities back together and facilitate principled returns.

While ISIS continues to carry out individual attacks, the war is largely over. Iraqis should now be asking their government whether the security clearance system is appropriate to regulate all interactions between citizens and their government. The new government needs to scrap the entirely inappropriate, onerous and de facto abusive system that has been weaponized to collectively punish women and children, leading to further marginalization and risk of extremist recruitment. In this post-conflict phase, if Iraq is to move forward, the task for the new Iraqi government should be to ensure that all of its citizens feel safe and protected.

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

A Pittsburgh Police officer walks past the Tree of Life Synagogue and a memorial of flowers and stars in Pittsburgh on Sunday, Oct. 28, 2018, in remembrance of those killed and injured when a shooter opened fire during services Saturday at the synagogue.

© 2018 AP Photo/Gene J. Puskar

If there is one thing the massacre at a Jewish synagogue, the pipe bombs mailed to leading Democratic party figures, and the racist violence that claimed the lives of two African-Americans in a Louisville Kroger store last week show, it’s that far-right and racist extremism are serious threats in the United States. Though law enforcement took swift action towards investigating and prosecuting those accused of carrying out these attacks, it is not clear the US federal government is taking this threat as seriously as it should.

Since the September 11, 2001 attacks, the US has devoted enormous energy and resources towards countering threats posed by those accused of affiliation with extremists associating themselves with Islam both in the US and abroad. When US officials seek greater surveillance authority, they also frequently do so by emphasizing threats they say are posed by Muslims.

But since 9/11, according to a 2017 Government Accounting Office report, far-right violent extremists have committed 62 attacks in the US, far more than the 23 carried out by people connected to Islamic extremists. These attacks have killed close to the same number of people, 106 compared to 119. A New American Foundation study, using different definitions, found far-right extremists committed 86 deadly attacks compared to the 104 committed by Islamist extremists.

This doesn’t necessarily mean that the US needs to adopt a federal domestic terrorism statute like some are proposing. Many crimes committed by far-right extremists are prosecuted at the state level because those carrying out the attacks are not connected to an international terrorism group. Enacting a federal domestic terrorism statute risks embedding some of the same problems associated with use of the overbroad federal material support for terrorism statute that Human Rights Watch and others have documented.

But at a minimum, the US should examine whether the lopsided allocation of resources to countering Islamic extremist threats, and US policy priorities, are really justified when the threats posed by far-right extremists are on the rise.

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

Dear Prime Minister Wickremesinghe,

Human Rights Watch welcomes Sri Lanka’s renewed efforts to replace the Prevention of Terrorism Act of 1979 (PTA) with a law that meets its reform commitments to the United Nations Human Rights Council and comports with international human rights standards. Enacting and implementing a counterterrorism law that upholds human rights protections would be an important advance for the rule of law in Sri Lanka.

Attached below are Human Rights Watch’s comments on the Counter Terrorism Act of 2018 (CTA), the bill intended to replace the PTA. The draft law received conditional approval from the Cabinet of Ministers on September 11, 2018 and was submitted to the Sri Lankan Parliament on October 9, where it may undergo further revisions.

This draft represents a significant improvement over previous proposals, but it should be strengthened by removing several problematic provisions. Human Rights Watch is concerned by media reports that Parliament may consider amendments that reduce rather than enhance the CTA’s human rights protections in a process that excludes meaningful public scrutiny.

Human Rights Watch has monitored human rights in Sri Lanka for three decades. We documented violations of the laws of war and child recruitment by the Liberation Tigers of Tamil Eelam, the mistreatment of Sri Lankan migrant workers in the Gulf, and serious abuses, including torture, by state security forces during and since the conflict that ended in 2009. Throughout we have worked closely with Sri Lanka’s human rights organizations and advocates.

We look forward to continuing a constructive dialogue with your government to ensure that the proposed CTA does not incorporate any of the unlawful and counterproductive elements that were the hallmark of the globally discredited PTA.

Sincerely yours,

                                                            

Meenakshi Ganguly                                       Nadim Houry

South Asia Director                                        Director

Asia Division                                                  Terrorism/Counterterrorism Division

Human Rights Watch                                     Human Rights Watch

 

Posted: January 1, 1970, 12:00 am

Summary

The draft Counter Terrorism Act of 2018 (CTA)[1] represents a significant improvement over previous proposals to replace the Prevention of Terrorism Act (PTA),[2] although several  problematic provisions remain. The bill narrows definitions of terrorism acts, strengthens protections against custodial torture and coerced confessions, reduces pre-charge and pre-trial detention periods, and increases access by suspects to legal counsel and family members.

Critically, the drafters resisted proposals to restore capital punishment, which had been removed from the PTA three decades ago. More broadly, the proposed expansion of powers of magistrates and the Human Rights Commission of Sri Lanka may serve as important checks on the abusive conduct by law enforcement that characterized arrests and detentions under the PTA.[3]

Nevertheless, the bill’s list of terrorism acts should be narrowed further. Detention Orders – directives that place suspects in police custody – cannot be challenged for at least 14 days and may be extended to eight weeks total, an inordinate period absent exceptional circumstances. Suspects may be jailed for up to one year without charge in contravention of international human rights law prohibitions on detention without charge.

Sri Lankan media have reported that changes to the bill are being considered by Parliament with no opportunity for meaningful public scrutiny. Human Rights Watch is particularly concerned about efforts to restore provisions that flout international due process standards such as the admission of confessions to the police.[4] We are also concerned by the bill’s lack of a sunset clause and review mechanisms.

Definition of Terrorism

The draft CTA substantially reduces the list of acts considered to be terrorist offenses. In contrast to a previously circulated proposal, the draft law no longer criminalizes “words either spoken or intended to be read that threaten the unity of Sri Lanka,” an offense that would violate freedom of expression under article 19 of the International Covenant on Civil and Political Rights (ICCPR).[5]

However, Part I of the proposed CTA still includes several overbroad definitions of terrorism offenses, such as “intimidating a population” (sections 3(a) and 6). Intimidation does not per se rise to the level of an act that would reasonably be considered terrorism. Human Rights Watch recommends that this phrase be removed.

The CTA also criminalizes as terrorism the act of “wrongfully or unlawfully compelling the government of Sri Lanka, or any other government, or an international organization, to do or to abstain from doing any act" (section 3(b)). The word “wrongfully” is dangerously vague and could capture legitimate protests against government policies.

The CTA further criminalizes dissemination of material with the intent to incite terrorism, “notwithstanding that such conduct does not expressly advocate such offence” (section 6 (g)). This language creates the potential for an overbroad interpretation of incitement, which should be criminalized under the CTA only when it is a direct call to terrorist action. International law provides that freedom of expression extends not only to information or ideas that are favorably received, but also to those that are “deeply offensive.”[6]

To be terrorist under the draft law definitions, the abovementioned acts must be coupled with one of several separately listed offenses. Of great concern is the inclusion in these separate lists of “theft, in respect of State or private property” (section 3(2)(e)) and of “theft or mischief or other damage to property of the State… associated with any essential service” (section 7 (c)).

Under these provisions, a protester who carries out an act of mischief such as spray-painting graffiti or placing billboards on the wall of a public hospital or other government building that provides an essential service could be charged with terrorism. Similarly, a protester could be charged with terrorism for stealing a blanket while protesting against austerity measures imposed by the International Monetary Fund or the World Bank—a criminal act, but hardly one intended to create a state of mass panic and cause death or serious physical harm for ideological, political or political ends.

Another concern is the offense of “interference with any automated or electronic or computerized system” (section 3(2)(g)). Coupled with the aim of “wrongfully compelling a government to act,” this provision could result in a whistleblower being charged with terrorism for exposing a government abuse.

Commendably, the draft CTA contains certain exemptions for “good faith” acts. Section 10(l), for example, exempts the publication of material “in good faith with due diligence for the benefit of the public or in national interest.” However, “good faith” clauses are not a substitution for more narrower and clearer definitions of terrorist acts.

Arrests

Part II of the draft CTA improves protections during arrests and police custody. Significantly, the police must present a detained suspect to a magistrate within 48 hours (section 21), reduced from 72 hours under the PTA. That two-day maximum period complies with article 9 of the ICCPR, which requires that anyone arrested on a criminal charge be brought before a judge “promptly.”[7] The draft law directs the police to take “every possible measure” to ensure that the arrest of a female suspect is carried out by or in the presence of a female arresting officer, and requires any searches of women and girls to be carried out by a female arresting officer (sections 22-23). A family member must be notified within 24 hours of a suspect’s arrest (section 25), as well as where the suspect is being detained and the name of the arresting officer.

In contrast to the PTA, which limited arrest powers to the police, members of the armed forces or the Coast Guard may also make such arrests. Outside of an armed conflict situation, armed forces personnel typically do not have law enforcement training. Permitting them to carry out arrests facilitates arbitrary arrests and mistreatment in custody, which undermine counterterrorism efforts.

Police Detention

The draft CTA limits Detention Orders by reducing the period that suspects can be held in police custody to eight weeks total: four periods of 14 days, with extensions beyond the first 14-day period requiring a magistrate’s approval (section 31). A magistrate may reject any requested extensions and instead send a suspect to judicial custody after the initial 14-day period. That provision would significantly reduce the excessive police detention periods under the PTA, which authorized three months of detention, renewable five times for a total of 18 months. Risk of torture in Sri Lanka is highest during the initial period of arrest and police custody.[8]

To reduce the possibility of ill-treatment in detention, the draft CTA also requires a magistrate to interview a suspect in private, without the arresting police present, during police detention (section 28). The magistrate also has unrestricted access to the suspect, without providing advance notice, during the police detention period (section 32).

However, Human Rights Watch remains concerned that the initial 14-day police detention period cannot be overturned by a magistrate. Furthermore, appeals of Detention Order extensions can take up to three weeks (section 38).

Pre-Charge Judicial Detention and Bail

Part III of the draft CTA significantly shortens pre-charge judicial custody to six months with a second, six-month extension upon an application by the attorney general approved by a High Court judge (section 30). Magistrates must grant bail after six months or, in the case of an extension, 12 months, if no indictments are filed by that time, unless they believe that defense counsel is unduly prolonging the proceedings. Under the PTA, suspects were routinely held for several years without charge or trial, and the attorney general had a right of veto over the granting of bail.[9]

While an improvement over past practice under the PTA, holding a suspect without formal charge for 12 months is excessive and contrary to article 9 of the ICCPR.[10] In another concern, bail can only be granted during the 6-to-12-month pre-charge period of judicial detention as an exceptional measure, on the order of a High Court judge (section 29). The ICCPR provides that a suspect “shall be entitled to trial within a reasonable time or to release.” It directs that detaining suspects awaiting trial “shall not be the general rule,” although release may be subject to guarantees to appear for trial or other stages of judicial proceedings.[11]

Torture

The draft CTA contains strong provisions to protect against torture, which the United Nations and nongovernmental organizations, including Human Rights Watch, have found to be widely practiced against PTA detainees, particularly during police detention.[12]

As previously noted, Section II provides that magistrates must interview a suspect in private when he or she is first brought to court. If magistrates suspect torture, they may order a forensic examination and medical treatment and may bar the police officer overseeing custody from further access to the suspect (section 28). A magistrate is required to order an investigation if the medical examination concludes torture was probable. However, if torture is suspected, the magistrate should be required to order a forensic examination, and to separate possible torturers and their colleagues from the suspect as a protective measure.

The draft law requires magistrates to make unannounced visits to places of detention to check on and interview suspects. Magistrates who see evidence of torture must order a forensic examination. Should those examinations show torture, they must also order criminal proceedings against the alleged torturers (section 32).

To be admissible as evidence, confessions must be made to a magistrate. This is a significant improvement from the PTA, which allowed the use of police confessions despite widespread evidence that they were obtained through torture and other ill-treatment. Furthermore, immediately prior or after making a confession, the suspect must be examined by a forensic expert and a forensic report produced. Under the CTA, the burden of proving the confession was voluntary lies with the prosecuting authority (section 80).

Rights to Counsel

The draft CTA provides terrorism suspects with access to legal counsel while in police custody (Part II, section 44), including prior to any interview by the police (Part III, section 54). It also requires that police interviews are held and recorded in a language that the suspects understand (section 54). UN reports have long expressed concern over the lack of access to legal counsel under the PTA.[13]

For the most part, these draft provisions adhere to fundamental rights under the ICCPR.[14] However, the proposed law does not clarify whether a suspect’s lawyer may be present during questioning. Moreover, a member of the armed forces or the Coast Guard may hold a suspect for a full day before handing over the detainee to the police, effectively delaying access to a lawyer for up to 24 hours (sections 17-18). Parliament should ensure that suspects have access to a lawyer during police questioning as well as during any detention or questioning by the military or Coast Guard.

Penalties

In keeping with Sri Lanka’s de facto moratorium on the death penalty, an inherently cruel form of punishment, Part I of the draft CTA sets life imprisonment as the maximum penalty for a terrorism-related offense. The Cabinet of Ministers rejected calls for restoring capital punishment for the worst terrorism offenses, including those resulting in death. Of concern, however, are the CTA’s overbroad definitions of terrorism, which create the potential for prison sentences of up to 15 years for people who have committed less serious crimes that do not constitute terrorism (sections 11-12).

Human Rights Commission

Sections II and III of the draft CTA substantially strengthen the powers of the Human Rights Commission of Sri Lanka to protect terrorism suspects from human rights violations. Among other measures, the commission must be notified within 24 hours of a suspect’s detention and be granted “prompt” access to the detainee (section 25). The authorities must also maintain a database for terrorism-related cases, including details on ill-treatment, and provide the commission with access to the data (section 26).

Significantly, a Human Rights Commission representative may interview detainees and inspect their case files with no advance notice (section 34). The commission must be notified of detainees’ transfers and release (sections 42-43). The commission, as well as the magistrate, have authority to register a complaint about conditions of police or prison detention (section 48), and the inspector general of police or superintendent of prisons is required to take all feasible steps to ensure humane treatment.

Police Investigative Powers

Section IV of the draft CTA significantly expands judicial control over police investigative powers. It requires the police to obtain a judicial order to access information in a suspect’s bank accounts and other financial institutions (section 63), to obtain data from service providers (section 64), to freeze a suspect’s assets or bar them from travel (section 66), or to monitor, record or intercept phone, mail and electronic communications (section 67). As with other expansions of magistrates’ powers, such reforms will depend on the independence and impartiality of the Sri Lankan judiciary.

Ministerial Orders

Part IX of the proposed CTA opens the door to arbitrary closures of civil society groups by allowing the Sri Lankan minister of law and order to ban an organization for one year, with indefinite extensions, on “reasonable suspicion” of committing an offense in the draft law or of “acting in a manner prejudicial to the national security of Sri Lanka” (section 81). Although the measure includes the right of appeal, neither the initial proscription nor the renewal requires judicial review.

In an improvement from the PTA, the draft law substantially limits the minister’s virtually unfettered powers to issue Restriction Orders – limitations on the movements of suspects not placed under formal arrest (section 82). It provides that a minister can only request a Restriction Order upon the recommendation of the inspector general of police, and that the High Court approve the request. It also allows suspects to appeal the orders, specifies that the restrictions must be necessary and proportionate, and limits the period of restrictions to 6 months total with monthly reviews, compared to 18 months under the PTA. However, the limitations that the draft CTA allows can be severe, such as bans on domestic and foreign travel as well as communication or association with specified individuals. Given the overly broad grounds for placing a person under a Restriction Order, the potential remains for disproportionate curtailment of the rights to freedom of movement and association.

Recommendations

Human Rights Watch urges the Sri Lankan Parliament to promptly repeal the PTA. If replacing the PTA with the CTA, the Parliament should finalize the draft CTA in a transparent and participatory process that brings the law into full compliance with international human rights standards.

Specifically, Parliament should include the following reforms in the CTA:

  • Definitions: Narrow the definition of terrorism offenses to exclude acts such as “mischief,” “intimidating a population,” and dissemination of material without a clear element of intent to kill or cause serious physical harm for ideological, religious, or political purposes.
  • Arrests: Restrict warrantless arrests, including by the Coast Guard and military, to urgent situations such as averting an imminent threat.
  • Detention Orders: Require judicial review for initial Detention Orders, not just for extensions of the initial order.
  • Bail: Authorize pre-trial bail as general practice, absent clear evidence of potential harm from granting a suspect conditional release.
  • Torture: Require magistrates to order a forensic examination, and to separate the potential torturer from the suspect, in all cases in which they suspect torture.
  • Legal Counsel: Clarify that a suspect’s lawyer may be present during as well as prior to questioning, and that all efforts should be made to provide access to counsel within 24 hours even in cases in which the military or Coast Guard make the arrest.
  • Penalties: Reject attempts to restore the death penalty for terrorism offenses.
  • Human Rights Commission: Ensure that the Human Rights Commission has adequate resources to apply its expanded powers under the CTA, and that it can act without political interference.
  • Ministerial Orders: Narrow and clarify the legal basis for banning an organization. Require judicial adjudication with a right to appeal of all government orders to proscribe organizations.
  • Sunset Clause: Provide that the CTA will automatically lapse after two years. Condition renewal on an independent review of the law’s impact on human rights.
  • PTA accountability: Call on the Attorney General to review all PTA cases, and appropriately prosecute law enforcement and other government officials implicated in the torture and other ill-treatment of suspects under the PTA.
 

[1] Proposed Counter Terrorism Act of 2018 (CTA), Bill No. 268, Gazette of the Democratic Socialist Republic of Sri Lanka, September 17, 2018, http://www.documents.gov.lk/files/bill/2018/10/532-2018_E.pdf.

[2] Prevention of Terrorism (Temporary Provision) Act, No. 48 of 1979, http://www.satp.org/satporgtp/countries/shrilanka/document/actsandordina....

[3] Human Rights Watch, Locked Up Without Evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act, January 2018, https://www.hrw.org/report/2018/01/29/locked-without-evidence/abuses-und..., pp. 21-40.

[4] “Counter-Terrorism Bill: Major break from draconian PTA,” Sunday Observer, September 16, 2018, http://www.sundayobserver.lk/2018/09/16/news-features/counter-terrorism-....

[5] International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[6] ICCPR, art. 19; UN Human Rights Committee, General Comment No. 34: Article 19 (Freedoms of Opinion and Expression), CCPR/C/GC/34, July 29, 2011, https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf, para. 11.

[7] The UN Human Rights Committee, the international expert body that interprets the ICCPR, considers “promptly” to mean within 48 hours absent “absolutely exceptional” circumstances. See Human Rights Committee, General Comment No. 35, CCPR/C/GC/35, December 14, 2014, https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?s..., para. 33.

[9] See UN Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, A/HRC/39/45/Add.2, July 23, 2018, http://undocs.org/A/HRC/39/45/Add.2., paras. 21-22, 35-36; Human Rights Watch, Locked Up Without Evidence, p. 43.

[10] ICCPR, art. 9(b).

[11] ICCPR, art. 9(c).

[12] See Human Rights Watch, Locked Up Without Evidence, pp. 2-4, 22-42; see also UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mission to Sri Lanka, A/HRC/40/XX/Add.3, July 23, 2018, https://www.ohchr.org/Documents/Countries/LK/Sri_LankaReportJuly2018.PDF, paras. 8, 17-20, 24-27; Report of the Special Rapporteur on Torture and Other Inhuman, Cruel or Degrading Treatment or Punishment on His Trip to Sri Lanka, A/HRC/34/54/Add.2, December 22, 2016, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/34/54/Add.2, paras. 24-27, 31; and Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, A/HRC/39/45/Add.2, July 23, 2018, para. 25.

[13] See, for example, UN Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, A/HRC/39/45/Add.2, July 23, 2018, paras. 32-33.

[14] ICCPR article 14(3) provides that suspects are entitled to legal counsel and that they must be informed of the charges against them in a language that they understand.

Posted: January 1, 1970, 12:00 am

Sri Lankan police stand guard at a protest calling for the release of Tamil activists being held under the Prevention of Terrorism Act in Colombo, Sri Lanka, October 14, 2015.

© 2015 Ishara S. Kodikara/AFP/Getty Images

(Colombo) – Sri Lanka’s draft counterterrorism law significantly improves upon the current, abusive Prevention of Terrorism Act (PTA) but needs further safeguards against rights violations, Human Rights Watch said in a commentary released today. Parliament should amend the bill to fully comply with international human rights standards and resist pressure to roll back its reforms.

The Counter Terrorism Act of 2018, drafted to replace the PTA, narrows the definition of terrorism, increases protections against torture and coerced confessions, and reduces pretrial detention. But overbroad provisions could be used to prohibit peaceful protests and ban nongovernmental organizations. Curbs on police powers remain insufficient.

“The Sri Lankan government has finally addressed the torture-tarred Prevention of Terrorism Act, but the proposed law needs stronger human rights protections,” said Letta Tayler, senior terrorism and counterterrorism researcher at Human Rights Watch. “Parliament should reject attempts to add abusive clauses and pass a bill that advances the rule of law.”

The Cabinet of Ministers submitted the draft law to parliament on October 9, 2018. Media reports suggest that there is pressure within parliament to reduce the bill’s rights protections. Measures reportedly under consideration would include restoring the Prevention of Terrorism Act’s use of confessions to police as evidence in court.

Sri Lanka has agreed to calls by the United Nations Human Rights Council and the European Union to repeal the current law as part of the government’s accountability and reconciliation measures for widespread abuses during the country’s 26-year civil war, which ended in 2009. Government security forces committed multiple serious human rights violations under the PTA, which the government enacted as an emergency measure in 1979 and made permanent in 1982. The government has yet to carry out most reforms pledged to the Human Rights Council in its 2015 resolution.

Parliament should bring the draft law into full compliance with international human rights standards in a transparent and participatory process, Human Rights Watch said. The law should automatically lapse after two years, with renewal to be considered after an assessment of its impact on human rights.

The Attorney General’s Office should review all PTA prosecutions that are tainted by credible evidence of torture or other abuse and provide redress for violations. It should also prosecute and hold to account all law enforcement and other government officials implicated in the abuse of terrorism suspects.

“After years of stalling, Sri Lanka finally appears poised to scrap its discredited Prevention of Terrorism Act,” Tayler said. “The government should start demonstrating its seriousness about breaking with past abuses by strengthening its new counterterrorism bill.”

Posted: January 1, 1970, 12:00 am

An armed police officer stands guard outside the Houses of Parliament in London, April 2017.

© 2017 Chris J Ratcliffe/AFP/Getty Images

(London) – The United Kingdom Parliament should scrap provisions in a new counterterrorism bill that excessively restrict freedom of expression, freedom of movement, and privacy, Human Rights Watch said today. The draft law punishes a single click on terrorist content online with up to 15 years in prison.

The sweeping Counter-Terrorism and Border Security Bill would criminalize travel to areas the government designates terrorist risk zones, which could obstruct family visits, news reporting, and aid work. It would also erode rights to consult a lawyer during stops at ports, airports, and borders.

“The new UK counterterrorism bill veers dangerously toward the logic of guilty until proven innocent,” said Letta Tayler, senior terrorism and counterterrorism researcher at Human Rights Watch. “Parliament should strip this bill of provisions that risk harming legitimate activities in the name of security.”

Government officials contend the bill contains ample safeguards and is a necessary response to deadly Islamic State (also known as ISIS)-inspired attacks in London and Manchester in 2017, as well as poisonings in Salisbury in March 2018 for which the UK blames Russia. The House of Lords, the upper chamber of Parliament, sent the bill to a review committee following an impassioned debate on October 9. The House of Commons approved the draft law in September and a final vote is expected in late 2018 or early 2019.

In an attempt to clamp down on internet-inspired attacks, the draft law would criminalize even one click on, or view of, online content that the authorities deem useful to preparing or committing a terrorist act. The European Convention on Human Rights (ECHR) upholds the freedom to receive and express opinions and information even if they offend, shock, or disturb. Viewing or clicking on offensive content should not be criminalized absent a clear link to inciting, preparing, or carrying out an unlawful act, Human Rights Watch said.

The provision allows the accused to argue that they have a “reasonable excuse” to view the content. However, the only excuse it specifies is not knowing or having no reason to believe that the content was terrorism-related. That could leave researchers, journalists, and those who click through “ill-judged curiosity” but no criminal intent unprotected, the UK human rights group Liberty wrote.

The bill also criminalizes “reckless” expressions of support for a banned organization, regardless of whether the person succeeds – intentionally or unintentionally – in encouraging its audience to support the group. The provision does not specify what constitutes expressions of support.

As the UK Parliament’s Joint Committee on Human Rights noted in a report seeking 29 changes to the bill, the “reckless” offense is disproportionate, ambiguous, and “could have a chilling effect” on academic debates. While the concept of “recklessness” exists for certain criminal acts, such as causing physical harm, it should never be applied to speech, which must contain an element of intent to be criminal, Human Rights Watch said. UK law already criminalizes “glorification” and “encouragement” of terrorism, as well as “inviting support for a proscribed organization,” making this one of several clauses in the bill that are unnecessary as well as overreaching.

The bill would also criminalize the online publication of an image depicting a flag or other item that would prompt “reasonable suspicion” that the person posting the image is a member or supporter of a proscribed organization. This could lead to unjust prosecutions for publishing historical, satirical, or journalistic material, Human Rights Watch said.

A recent amendment would punish traveling to or remaining in areas abroad that the UK Secretary of State designates terrorist risk zones with prison terms of up to 10 years. The proposal, which mirrors an overbroad 2015 Australian law, aims to deter UK nationals from joining armed groups abroad and returning to commit attacks at home.

While concern about the potential security risk posed by some returning fighters is warranted, the measure could target travel to visit family, attend funerals, report on conflicts, or provide life-saving food and medical care, Human Rights Watch said. The proposal allows such travel if the person provides a “reasonable excuse,” but unjustly places the burden of proof on the traveler.

The International Covenant on Civil and Political Rights (ICCPR) upholds everyone’s right to leave any country and the right to enter their own country. The UN independent human rights expert on countering terrorism has expressed concern about overbroad foreign fighter travel bans.

In response to the Salisbury poisonings, the bill also would empower customs and immigration officials to stop, question, search, and copy or seize personal belongings of anyone at ports, airports or border crossings to determine whether they may be involved in “hostile activity” on behalf of a foreign government. Detention could last up to six hours. No grounds for suspicion would be required and hostile activity is vaguely defined. Failure to provide information or belongings would be punishable by up to 51 weeks in prison.

Border officials could question the person for up to an hour without a lawyer. In addition, a senior police official could require that legal consultation take place within eyeshot and earshot of the authorities in certain cases – for example, if the authorities express concern that a lawyer might engage in evidence tampering. The right of detainees to see a lawyer is enshrined in the ECHR and the ICCPR, and the UN Human Rights Committee has interpreted that right to include legal consultation in private. The Law Council of England and Wales called the proposal’s potential to damage lawyer-client privilege “severe.”

The proposed powers are similar to those already in force in the UK for counterterrorism stops-and-searches, which have disproportionately affected members of ethnic minorities. In one positive step, the measure would clarify that answers given during such questioning are not generally admissible as evidence.

Another clause would decrease independent oversight of police retention of fingerprints and DNA samples of people arrested for serious terrorism offenses. In certain cases, the provision would increase the retention period from two to five years with no review by the country’s biometrics commissioner. Extensive retention of personal data for suspects not even charged with a crime violates the right to privacy enshrined in both the ECHR and the ICCPR.

The bill also would amend the UK’s Prevent program, aimed at preventing people from being drawn into terrorism, allowing local authorities to refer people they consider vulnerable to special risk-assessment panels. Currently, only police officers can make such referrals. The program has been criticized by two UN human rights experts. Before making such a change, the government should commission an independent review to assess the program’s effectiveness and its impact on individuals and communities, Human Rights Watch said.

The UN human rights expert on counterterrorism and the UK’s outgoing independent reviewer of terrorism legislation have also criticized portions of the bill as disproportionately broad or invasive.

“At home, the new UK counterterrorism bill risks subverting the very freedoms and democratic principles that it purports to protect,” Tayler said. “Abroad, it gives countries with fewer checks and balances a dangerous excuse to follow suit.”

Posted: January 1, 1970, 12:00 am

Counterterrorism police carry out a search in Bishkek, Kyrgyzstan on October 16, 2015. 

© 2016 Ulan Asanaliev/RFE/RL

“And what about the Amish?” a government security official in Kyrgyzstan asked, leaning forward intently. He was meeting in Bishkek with Human Rights Watch to discuss Kyrgyzstan’s crackdown on extremism.

The official was noting similarities between the Amish, a traditionalist Christian group dedicated to the will of Jesus, and Yaqyn Inkar, an Islamic group dedicated to replicating the life of the Prophet Mohammed.

The Amish eschew technology, travel by horse-drawn buggy, dress plainly in solid colors – women cover their heads – and educate their children themselves. Yaqyn Inkar members eschew technology, travel by foot, wear traditional white clothes, and educate their children themselves – boys and girls separately. In the United States, Amish communities are a popular destination for school trips. In Kyrgyzstan, Yaqyn Inkar is banned.

The official’s question underscores the challenges facing Kyrgyzstan’s secular state as it seeks to define extremist threats to national security. Conservative religious groups, a majority of them Islamic, are gaining popularity in the predominantly Muslim country. While many of these groups denounce violence, the authorities contend that some are secretly linked with Islamist armed movements such as the Islamic State (also known as ISIS) and the Islamic Movement of Uzbekistan (IMU) or are a stepping stone to violent groups.

Concerns about armed extremism are understandable. Central Asians, including from Kyrgyzstan, have joined Islamist armed groups in Iraq, Syria and Afghanistan, and since 2016 have been implicated in attacks in New York, Stockholm, Istanbul, St. Petersburg, Kyrgyzstan, and Tajikistan.

But the government’s response includes an abusive crackdown on videos, pamphlets, and other material that the authorities outlaw under a dangerously elastic definition of extremist. As a new Human Rights Watch report illustrates, hundreds of people have been investigated or convicted in recent years for mere possession of such material, without a need for any evidence that they intended to use it to carry out ideologically or politically motivated violence.

Human Rights Watch tallied at least 258 convictions for possession of extremist material since 2010. During a trip to Bishkek in September, we learned of at least 100 additional convictions and 500 open investigations. A number of these cases involve additional offenses, but the authorities could not tell us how many. At least seven other post-Soviet countries are banning material they deem extremist.

Material banned in Kyrgyzstan includes abhorrent ISIS videos, but also a report to a United Nations committee on migrant workers, the film “I am Gay and Muslim,” and pamphlets from Hizb ut-Tahrir, a group that seeks an Islamic caliphate but publicly disavows violence. Those threatened or convicted for possession of extremist material include civil society members, journalists, and defense lawyers, and people whose only apparent crime is being a religious conservative. Since 2016, the government has mandated prison terms of three to five years for possession of such banned materials alone.

Several accused and their lawyers told us that counterterrorism police and state security agents planted evidence and demanded bribes to make cases go away, or in some cases beat suspects to extract confessions. In several cases that we documented, the authorities only declared the material in question extremist in nature after the suspects were arrested for possessing it.

Many of the accused are members of Kyrgyzstan’s ethnic Uzbek minority. Although government authorities adamantly deny targeting people by ethnicity or religious affiliation, several suspects and lawyers told us they believe this is the case. That perception is sowing distrust instead of uniting Kyrgyzstan’s people against armed threats.

“We live in constant fear that at any moment, someone will knock on our door with a warrant and take us to prison on false evidence,” said “Sukhrob,” an ethnic Uzbek man who was convicted in 2017 for possessing a magazine and three other pages of literature from Hizb ut-Tahrir, all several years old. Sukhrob said that the material was planted.

Under a new law that is to enter into force in January, the government will no longer criminalize mere possession of material it deems extremist, absent an intent to use it for violent ends. In meetings last week in Bishkek, government officials assured us that they are committed to carrying out this reform on schedule.

That is good news. But what of the hundreds of people arrested for possession since Kyrgyzstan approved this scheduled change back in December 2016? The Prosecutor General’s Office said it does not intend to review previous charges or convictions for possession, absent a petition from each defendant. That places an unfair burden on the accused. Equally worrisome, the planned reforms will not amend Kyrgyzstan’s definition of extremism, which includes “vandalism” and “affronts to national dignity.”

Narrowing the definition of extremism, reviewing all prosecutions based on mere possession of extremist material, and holding law enforcement officials to account for any abuses should be top priorities for Kyrgyzstan. Foreign donors – including UN agencies, the Organization for Security and Cooperation in Europe (OSCE), and the European Union and its member states – should condition aid on such reforms.

Anything less is foolhardy. As the United Nations has repeatedly warned, abusive counterterrorism measures can fuel the narrative of extremist armed groups that demonize state authorities to gain recruits. Kyrgyzstan should focus on genuine threats, not throw people in jail for the videos they watch or the books they read.

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