“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

As Co-Director of the US Program, Maria McFarland Sánchez-Moreno guides Human Rights Watch’s work on criminal justice, drug policy, immigration, national security, and surveillance in the United States.

Previously, as Deputy Washington Director for Human Rights Watch, McFarland Sánchez-Moreno conducted advocacy before the US government on a wide array of global human rights issues, including matters related to the Middle East and North Africa during the “Arab uprisings” of 2011. Earlier, she held the position of Senior Americas Researcher, covering Colombia's internal armed conflict and working on the extradition and trial of former Peruvian President Alberto Fujimori.

McFarland Sánchez-Moreno is the author of the narrative non-fiction book There Are No Dead Here: A Story of Murder and Denial in Colombia, forthcoming from Nation Books in February 2018. She holds a law degree from New York University School of Law and did most of her undergraduate studies in Lima, Peru, before completing her BA at the University of Texas at Austin. She is a native speaker of both Spanish and English.

Multimedia

"Your Reaction to NSA Curbs," on BBC World Service’s “World Have Your Say” (January 2014)

"Deadly Threats: Successors to the Paramilitaries in Colombia ," (February 2010)

Posted: January 1, 1970, 12:00 am

The military battle for Raqqa city appears to be over. The Syria Democratic Forces (SDF), with support from the US-led coalition, seized the Raqqa National Hospital, one of the last bastions of the Islamic State (ISIS) in the city earlier today. Coalition leaders will most likely herald a defining victory against terrorism.

ISIS may have suffered a blow, but for Raqqa and its inhabitants, their ordeal is not over. Because these same coalition leaders don’t really have an effective post-ISIS plan.

As the battle smoke over the Raqqa National Hospital clears, weighty questions linger: who will get the hospital running again? Who will rebuild it, pay its doctors, maintain its equipment? What about the surrounding schools, roads, and bakeries, that have been destroyed? The maxim that “war is easy, peace is hard” is particularly true in the war against ISIS, where too little thought has been given to the day after.

The situation of the Raqqa hospital is a window into the calamity facing Raqqa today. I visited the hospital over many days in April 2013. A month earlier, armed opposition groups that did not include ISIS at the time had overrun the government’s forces in the city and controlled the area around the hospital. When I visited, the hospital was still running but it was already suffering. The government had stopped paying salaries, and the hospital lacked essential staff to keep the hospital running. At the time, only 25 of the 112 doctors who once worked in the hospital remained and 15 of 28 dialysis machines were out of service. Days before I visited, the generator powering oxygen tanks in the hospital failed, causing four infants to die in the early-childcare ward.

Already in 2013, the question of who would run the hospital was a matter of great contention. Armed groups in Raqqa wanted control, and had dispatched some of their members to the hospital. Some doctors and local administrators were resisting and pushed to maintain a civilian administration. One of the doctors had even moved into the hospital as he feared that if he went home, the armed groups would not allow him back. I did not realize it then, but the tension between the armed groups and local civilians over control of the hospital foreshadowed the broader showdown among the different components of the Syrian uprising that would take place months later and that ended with ISIS taking control of Raqqa.

The challenge to get the city running again is even more formidable today. Over its four years of control, ISIS has torn much of the social fabric of the area and emptied it of its doctors, nurses and teachers. The US-led coalition has added to this calamity with a bombing campaign that appears to have prioritized defeating ISIS over the need to sufficiently protect the inhabitants or the city’s infrastructure.

Now that ISIS has basically been defeated in Raqqa city, the absence of a real strategy for the day after by the US-led coalition or their local partners, the SDF, is increasingly apparent. Of course, the coalition rejects such a characterization. In late June, the US special presidential envoy for the Global Coalition to Defeat ISIS, Brett McGurk, was in Syria on the outskirts of Raqqa city to “consult with local partners on the campaign to defeat ISIS and post-liberation governance issues.” The official readout spoke about the role of the coalition in “supporting actors that are working to establish basic security, re-establish essential services, and restore local economies to stabilize communities.” At a subsequent briefing on August 4, McGurk emphasized that the United States is committed to the stabilization of Raqqa areas – which he described as including rubble removal, demining and “basic electricity” – but not what he termed reconstruction: “don’t look to the United States to fit [sic] the bill for long-term reconstruction. This is an international problem.”

I happened to be on the ground in Raqqa province at the same time as McGurk and found that even “stabilization” efforts were lacking. Locals who lived in areas around Raqqa city that had already been retaken from ISIS complained about lack of electricity, water and medical treatment. If you needed medical care, you had to drive almost three hours to Kobane. Compared with the cost and sophistication of the war effort, the post-war reconstruction and stabilization was underfunded and frankly amateurish.

In Tabqa, a town near Raqqa that McGurk visited, I met a father whose 12-year-old daughter died while lined up at a bakery that was bombed by the US-led coalition. When I met the father, two-months after the town had been retaken from ISIS, his daughter’s body was still under the rubble because local authorities had told him that there was no machinery to remove the rubble. The father had tried everything to extract her body, including digging with his own hands. He could not understand how the mighty coalition that could track ISIS members down to their cell phones was not be able to spare a basic digging machine to extract his daughter and other victims from under the rubble.

Some US forces eventually came through his neighborhood, and he assumed they had finally come to offer to help remove the rubble. It turned out instead that they were there to collect information on foreign ISIS fighters who may have lived in his neighborhood. When he asked them about assistance to pull his daughter’s body out, they politely answered that it was not their responsibility.

When I raised the issue of reconstruction and assistance with some European diplomats from countries involved in the coalition I was mostly met with blank stares and even emptier rhetoric. One justification they presented is that Turkey does not want to allow aid through its border to these areas because it considers the People’s Protection Units (YPG) – the largest contingent in the SDF that consists mostly of Kurds – to be a terrorist group. While Turkey has indeed closed its border to SDF-held areas, the diplomats could not explain how the coalition managed to transfer military equipment to the SDF but was unable to find ways to get the assistance needed to get hospitals and other basic amenities running.

The truth is that Western countries want to fight ISIS, especially foreign fighters, that may present risks to their own societies in the future. But what happens to the civilians that get crushed in the process, seems to be no one’s responsibility. They are, to use McGurk’s term, an “international problem.” Which brings us back to the initial question. Now that the Raqqa National Hospital has been retaken from ISIS, who will be responsible for rebuilding it?

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

Ahed is an 11-year-old Syrian girl whose life was upended on the evening of March 20 when an airstrike hit the school near Raqqa where she and her family had sought shelter. Ahed survived, but the attack killed her father, her four siblings, and more than a dozen of her extended family.

It was not Syrian or Russian airplanes that killed Ahed’s family. It was a plane from the US-led coalition to defeat the Islamic State (also known as ISIS). I visited the building in early July after Syrian Democratic Forces, backed by the US, captured the area. While locals said that families of ISIS fighters who had fled Iraq were living in the school and that some ISIS fighters used to visit them there, the school also housed many displaced people who had no ties to ISIS, such as Ahed’s family. We collected the names of 40 civilians, including 15 women and 16 children, who died in the strike.

International law requires compensation for civilian victims of violations of the laws of war, including the obligation to take all feasible precautions to minimize civilian harm. The coalition has said that it struck the school where Ahed’s family stayed believing it was an ISIS intelligence headquarters and weapons storage facility and that “there is insufficient evidence” that civilians were harmed in the strike. The evidence, as tangible as Ahed’s scars, is real and the coalition should review its findings following Human Rights Watch’s on-the-ground investigation.

But even if a strike did not violate international law, civilian victims like Ahed need assistance, and the question of the coalition’s policies toward them is ever more pressing in light of mounting casualty figures. As of September 1, the coalition had acknowledged that it may have “unintentionally killed” at least 685 civilians in Iraq and Syria since the start of Operation Inherent Resolve in 2014. Independent monitors like Airwars, a watchdog group, estimate the number is closer to 5,000. The Syrian Observatory for Human Rights reported on September 20 that coalition airstrikes had killed 1,064 civilians, including 248 children, in Raqqa alone since operations began to retake the area in early June.

But the coalition has yet to address this issue properly. Victims of coalition airstrikes are seen as unfortunate collateral damage in the effort to defeat ISIS. They are usually invisible in the media – nameless, faceless, and if any of them are interviewed by international media, it is often to ask them about their life under ISIS and not about the harm they have suffered at the hands of the coalition.

The coalition speaks of “unintentional victims” but makes no effort to reach victims to issue an apology. Apologies and other acknowledgements of harm would send a powerful signal that the coalition is not indifferent to their fate.

While symbolic gestures are important, victims like Ahed, also need material assistance. When we met her, she had made it to relatives living in Lebanon, but they are poor and unable to pay for her education. The issue is not to put a price on life but to assist victims in addressing needs that arise as a result of coalition bombing. The US military, as well as some other members of the coalition, have extended payments in the past in Afghanistan and Iraq to victims of their actions – not as a form of legal compensation but as a gesture intended to ease civilian suffering. The payments are referred to as condolence or ex gratia payments, to emphasize that there is no legal obligation to make them.

In December 2016, Congress gave the Pentagon permission to make such condolence payments to families of civilians killed or injured by American airstrikes in Syria. But it is not clear what system – if any – has been put in place to make such payments. A coalition spokesperson told Human Rights Watch recently that “Under appropriate circumstances, commands may consider providing ex gratia payments as an expression of sympathy to those injured or the families of the deceased.” But what would constitute appropriate circumstances is not clear. The coalition’s response simply states that a request should be received by the coalition’s “claims department.” None of the victims or local activists we interviewed know how to approach this claims department.

Ahed’s tragedy should serve as a reminder of the suffering caused by the coalition’s lack of policies to assist victims of their bombing. It may be impossible to stop all civilian suffering in war, but much more can be done to alleviate it. The first step is for the US-led coalition to acknowledge the victims of its attacks and make effective its systems to help the victims obtain redress. No one can really compensate Ahed for the loss of her loved ones but one can make sure that her loss does not include the inability to go to school.

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

In Trump’s New Drone Strike Policy: What’s Any Different? Why It Matters, Luke Hartig astutely flags some – but not all – of the key dangers in the Trump administration’s reported plan to rescind many, if not most, rules for US lethal operations against terrorism suspects outside conventional warzones. What Hartig largely ignores is how flaws in the existing targeted killing policy, crafted under President Barack Obama, helped pave the way for President Donald Trump to kill more civilians.

“Based on initial reports, it’s actually not nearly as bad as we might have feared,” Hartig writes of the proposal, which would make it easier for the United States to kill more people off the battlefield with less oversight, greater secrecy, and no due process. Hartig notes that the plan is more tempered than Trump’s campaign vow to “take out” not only Islamic State members but also their families. That’s a perilously low bar to assess a dismantling of already insufficient rules for a program that has killed thousands of people in countries including Pakistan, Somalia, and Yemen—the vast majority of them during Obama’s presidency. Debates rage over how many of those were killed lawfully and how many were civilians.

The Trump administration proposal, reportedly advanced by his top national security advisers, would scrap protections that Obama approved in 2013 for lethal targeting, including the core requirement that the target pose a “continuing, imminent threat” to American lives. In an exclusive New York Times report, the Trump team rationalizes that dropping this safeguard will allow the US to kill not only the people it deems to be in the top echelon of a terrorist group but also those it considers lower-level members, even if they are far from any battlefield, and in countries such as Nigeria and the Philippines where the US is not already conducting such strikes. That Obama rule was already a fig leaf, as I explain shortly, but it may have been better than nothing.

The Times reported that administration officials have advised Trump to retain another much-touted Obama rule, which says that strikes cannot take place absent “near-certainty” that civilian bystanders would not be killed. The possibility that Trump may keep that provision, Hartig proclaims, is nothing less than “a dramatic affirmation that minimizing civilian casualties is both a moral and strategic imperative.” More broadly, he writes, the “mere fact” that Trump even has a set of guidelines for operations outside warzones is “a huge vindication of the Obama approach to overseeing drone operations and the extent to which that approach has been institutionalized by career counterterrorism professionals.”

Since Hartig was Obama’s counterterrorism director at the National Security Council and, before that, the deputy counterterrorism director in the office of the defense secretary, it’s understandable that he heralds his successors for prodding Trump toward replacing rather than obliterating the killing rules he helped craft and implement. But even if we accepted Hartig’s argument that the Trump proposal is better than no plan at all, this does not excuse its flaws. Nor should even our qualified acceptance obscure the fact that Obama’s guidance for killing terrorism suspects outside war zones contained glaring loopholes for taking civilian lives that the Trump proposal exploits.

Let’s return to the Trump team’s plan to scrap Obama’s rule that a suspect must present a “continuing, imminent threat” to be targeted for death. On the face of it, that Obama rule was his pledge to protect human life even more than he arguably had to. Obama, like his predecessor and successor, contended the US is engaged in an armed conflict without geographical boundaries with groups like al-Qaeda and the Islamic State, which spreads beyond conventional warzones such as Afghanistan and, later, Syria and Iraq. Therefore, Obama contended, the laws of war apply to killings of alleged enemy combatant members of those groups wherever they are, even far from any battlefield.

But the US government has yet to make the case that such hostilities outside conventional warzones have reached the threshold and intensity of an armed conflict. Until and unless the government does so, the default legal framework within which the United States operates should be the law-enforcement model of international human rights law, which in contrast to the less restrictive laws governing armed conflict only allows lethal targeting in order to protect an imminent threat to life. Applying a “continuing, imminent threat” standard to wartime operations means fewer people could be killed, but applying that standard outside of an armed conflict means more people could be killed, and they would likely be killed unlawfully. That’s because the “continuing imminent, threat” is a far broader category than the imminent threat to life under human rights law.

Hartig dismisses, or at least too easily sets aside, the obligation to apply the law-enforcement model to US killings outside conventional conflict zones as a “debate.” He then gives Trump a green light to take Obama’s refusal to recognize that obligation in the counterterrorism context even further. “It is important to squarely face the security rationale for doing away with this standard,” Hartig writes. “The problem with the continuing, imminent threat standard is that it often conflicts with best practices for targeting terrorist networks.” But best practices are only the best if they are lawful.

The problem with Obama’s “continuing, imminent threat” rule was that his administration never publicly defined how immediate a threat must be to qualify as “imminent” – could it be an hour, a month, or a year? Nor did it explain the contradiction of a threat that could be both imminent and “continuing.” And in any case, as The New York Times article notes, the Obama administration at times dispensed with that standard. How often it did so was one of the Obama presidency’s many drones-related secrets.

Were Trump to retain the Obama rule that an airstrike or commando raid outside a conventional warzone can only take place if there is “near-certainty” that no civilians will be killed, that would be a positive step indeed—provided the measure is followed in practice. But as my research in Yemen suggests, Obama also at times disregarded the near-certainty provision, including during a strike on a Yemen wedding procession.

Already, the research by Human Rights Watch and other groups raises serious questions about the Trump administration’s commitment to protecting civilian lives during such operations. Importantly, in March, Trump officially suspended all provisions in Obama’s 2013 rulebook in large areas of Yemen and Somalia, although as Hartig notes, the US commander for Africa has said he retained the near-certainly rule in Somalia anyway. What’s to stop him from suspending it time and again in the future, and the public never being told otherwise? Who’s to say where on the map he will actually declare places “outside of areas of active hostilities” (a condition required for the rules to apply)?

The Trump team proposal also reportedly would substantially reduce the level and frequency of high-level, interagency vetting, shifting more authority to the CIA and the Pentagon to carry out drone strikes and other lethal operations outside conventional warzones. Under Obama, strikes required prior approval from top officials from the Departments of State, Defense, Justice, and Homeland Security, as well as the director of national intelligence, CIA, the National Counterterrorism Center, and Joint Chiefs of Staff. Absent consensus, the president made the final call. While cautioning that the devil is in the details, Hartig is comfortable with streamlining the process and shifting approval authority to the Pentagon, with the important provisos that a broader interagency national security team hold the defense secretary accountable and that additional national security agencies have regular opportunity to review. But Obama’s review process was cumbersome for a reason: human lives were at stake. Fewer layers of review invites greater disregard for “near-certainty” that civilians will not be harmed.

Trump’s advisers propose easing the vetting not just for US military actions but also for CIA drone strikes, which the new guidelines would permit the covert agency to carry out in Afghanistan – a country where the US is undisputedly engaged in armed conflict. Less vetting could mean fewer safeguards against the CIA killing people without sufficient legal justification. Already, transparency even on strikes in Afghanistan by the US military is insufficient, although CENTCOM does release information on wartime operations and casualties. Transparency on strikes in neighboring Pakistan by the CIA, whose mission is covert, is nil, and it would remain so in Afghanistan as well. Without transparency on who and how many people the US is killing and why, there is no way to hold those responsible to account when strikes go wrong, as the laws of war require.

Citing US top brass, Hartig rightly notes that saving civilian lives is a strategic as well as moral imperative, helping garner local support and “preventing terrorists from using civilian casualties as a rallying and recruitment cry.” Obama’s rulebook in many ways paid mere lip service to that strategy. Notwithstanding Hartig’s optimism, the loopholes Obama passed along to the new administration enable Trump to do the same, and then some.

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

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

France’s draft counterterrorism bill is now in its final stretch before becoming law. The fast-tracked bill is widely expected to pass a vote in an extraordinary session of the National Assembly on October 3 – despite concerns that it encroaches on people’s rights.

The bill doesn’t prolong France’s two-year-long state of emergency, which will formally be over when it becomes law.

What it does is rather more unsettling. It takes elements of emergency practices – intrusive search powers, restrictions on individuals that have bordered on house arrest, closure of places of worship – that have been used abusively since November 2015, and makes them normal criminal and administrative practice. It does all this in a way that weakens the judiciary’s control over and ability to check against abuse in the way the new counterterrorism powers are used by prefects, the Interior Ministry’s appointed delegates in each region.

In July, the Senate approved important improvements to the bill: a sunset clause for the powers to stop existing in 2020, a requirement for annual reporting on their use to parliament, and technical changes mitigating the worst excesses of each proposed power.

But the current version of the bill, after the debate in France’s lower house, undoes many of these changes. It re-inserts vague language allowing prefects to order a mosque closure on ill-defined grounds, and sets out a harsher punishment if the mosque isn’t closed. People whose liberty is restricted to a specific area by a prefect’s order on national security grounds must report more frequently to police stations. Also, these orders can last much longer. A prefect can order an area to be locked down for increased searches for up to a month – without an imminent threat. And it expands the areas within which police can search people without a warrant to a 20 kilometer radius of ports, airports, and international train stations – all this in a country where police have all too often engaged in ethnic profiling during such stops. One analysis estimates that such extended powers could cover 28.6 percent of French territory and 67 percent of its population.

To some, these may seem like arcane technicalities or a small price to pay for the hope of greater security. But everyone in France should be worried about their rights when the executive branch of government rushes laws through without proper legislative scrutiny, to give itself greater powers without effective judicial control. 

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

Nadim Houry, director of Terrorism and Counterterrorism division at Human Rights Watch, speaks in a conference organized by the Organization for Security and Co-operation in Europe (OSCE).
 

Posted: January 1, 1970, 12:00 am

Iraqi Ministry of Transportation buses taking internally displaced families to Hammam al-Alil in May 2017. In late August, Iraqi authorities bused 1,400 foreign women and children to the site. 

© 2017 Belkis Wille/Human Rights Watch
 

(Beirut) – Iraqi authorities are holding more than 1,400 foreign women and their children who surrendered with ISIS fighters in late August 2017, Human Rights Watch said today. The detentions appear to have no legal basis and none of the detainees has been brought before a judge to assess the legality and necessity of their detention. The authorities should promptly charge or safely release them and confirm the whereabouts of up to 200 men and teenage boys, many foreign, who surrendered during the same period.

Beginning on August 30, Iraqi authorities detained the women and children next to a displaced persons camp in the town of Hammam al-Alil, 30 kilometers south of Mosul, then transferred them on September 17 to an informal detention site in Tal Kayf, 10 kilometers north of Mosul.

“Hundreds of foreign children risk being abandoned in a hellish twilight zone, with no legal identity and no country willing to take them,” said Bill Van Esveld, children’s rights researcher at Human Rights Watch. “Iraq, foreign countries, and international organizations should not let these children fall into statelessness, or consign them and their mothers to detention without charge.”

On September 10 and 11, Human Rights Watch visited the fenced Hammam al-Alil site, consisting of 17 large warehouse-style tents, which was controlled by Iraqi forces. Researchers conducted individual and group interviews with 27 foreign women. The family groups interviewed included no boys over 12 and no men. Two women were visibly pregnant, and dozens of children appeared to be under age 3.

The women and international humanitarian agency staff there said they included Afghan, Azerbaijani, Chinese, Chechen, Iranian, Russian, Syrian, Tajik, Trinidadian, and Turkish nationals. Reuters reported that they also included Algerian, French, and German nationals. Some women had identification documents but most said they did not. Most said they had traveled from their home countries to Turkey, then crossed into Syria before entering Iraq. Most of the children, particularly young children born in Iraq, had no birth certificates or ID documents.

One of the entry stamps in a Syrian woman’s passport who said she had entered Iraq lawfully, who was being held at the Hammam al-Alil site on September 10, 2017. Most women and children at the site had no identification documents.

© 2017 Bill Van Esveld/Human Rights Watch

An Iraqi military intelligence official who declined to give his name told Human Rights Watch at the site on September 10 that the women and children were being held “for their own protection.” There is no legal power under Iraqi law to detain people on this basis, nor is it legal to detain individuals merely because a spouse or parent was a member of the Islamic State, also known as ISIS. Under international law, Iraqi authorities may detain children only as a measure of last resort, and all detention needs to have a clear legal basis, be decided on an individual basis, and all detainees should be brought promptly before a judge to assess the legality and necessity of their detention.

In late August, the foreign women and children fled a military offensive that retook the Iraqi town of Tal Afar from ISIS, and surrendered to Kurdistan Regional Government (KRG) Peshmerga military forces, who held them temporarily in a school before handing them to Iraqi forces, said international humanitarian officials and the women.

Women interviewed by Human Rights Watch said that men and boys over 12 were separated, their hands tied, and lined up against a wall inside the school compound. Women who were there on August 28 said that a woman carried out a suicide attack at the school that day, after which the Kurdish forces killed six males, possibly including two boys, who were being held separately just outside the school compound. When the women were moved to Hamman al-Alil on August 30, the men remained and the women did not know what happened to them.

On September 17, Iraqi military officers and Transport Ministry officials arrived at Hamman al-Alil, loaded the women and children onto buses against their will and left with them, saying they had orders from Baghdad to move them to a military intelligence detention site in Tal Kayf, humanitarian officials who were there told Human Rights Watch. Iraqi authorities did not give them advance notice or say where the families were being taken. It is not clear if the women currently have access to humanitarian assistance and protection monitoring, which is cause for concern, Human Rights Watch said.

Col. Ahmed al-Taie from Mosul’s Nineveh Operation command told Reuters on September 10 that the Iraqi army was holding the women and children under “tight security measures” while “waiting for government orders” as to how to deal with them, including women he described as having been “deluded” by “vicious IS [Islamic State] propaganda.”

On September 12, the Norwegian Refugee Council stated that it would no longer manage the Hammam al-Alil site, where Iraqi military forces were present, because it could not be considered a humanitarian facility.

A KRG spokesman confirmed the suicide attack on August 28, but denied that Peshmerga forces had carried out the alleged extrajudicial killings. He said Peshmerga forces shot a man on August 30 because he was armed and carrying a bomb and threatened to kill a Yezidi captive and Peshmerga forces. The official said the Peshmerga had turned over to Iraqi security forces all the people who surrendered. Bodies found in Mosul since October 2016 suggested some Iraqi forces had extrajudicially killed suspected ISIS members there.

On September 16, Prime Minister Haider al-Abadi of Iraq stated in an interview that most of the women and children were not guilty of a crime, and that his government was “in full communication” with their home countries to “find a way to hand them over.” Human Rights Watch confirmed with humanitarian sources on September 18 that none of the women and children detained since late August at the Hammam al-Alil site had been repatriated.

Iraqi and KRG criminal justice authorities should investigate all alleged crimes, including unlawful killings, by any party to the conflict in a prompt, transparent, and effective manner, up to the highest levels of responsibility. Those found criminally responsible should be appropriately prosecuted.

Iraq should confirm the whereabouts of the missing men and boys, prioritize prosecution of ISIS members found to have committed the worst abuses, and consider alternatives to prosecution for people whose only alleged crime is ISIS membership or who entered Iraq illegally through Syria.

The Iraqi authorities should clarify the legal basis for holding the women and children, ensure all detainees are either charged with a crime and brought promptly before a judge, or immediately released, and are informed of their right to request consular assistance if they choose. Many of the foreign women apparently entered Iraq illegally, but not all are necessarily ISIS members. Iraq should work with international agencies to safely return foreign women who are not charged with a crime to their home country while considering the best interests of their children, taking into account the possibility that the mothers might be imprisoned. The government and international agencies should urgently identify durable solutions, including resettlement to third countries, for released women and children who cannot safely return to their home countries, including Syrian nationals.

While Iraq is responsible for ensuring the safety and security of the women and children, their home countries’ and other foreign embassies have a key role to play in finding durable solutions, including potential third country resettlement.

“The Iraqi government should ensure the women’s safe repatriation, asylum or resettlement if they release them, or fair trials if it charges them with violating Iraqi laws,” Van Esveld said. “It would be a terrible irony if children, who were notoriously victimized by ISIS, were forced to pay with their future for ISIS’s crimes.”

Fleeing Tal Afar
ISIS took control of Tal Afar in June 2014. Iraqi forces opened an offensive on August 20, 2017, and retook control of the city and the eastern parts of the district from ISIS fighters on August 26, and the rest of the province in late August. A United Nations humanitarian update published on August 29 reported that 20,000 people fled the area between August 14 and 22, but that 1,500 who remained in the city attempted to flee on August 26.

The women Human Rights Watch interviewed said they fled fighting in Tal Afar at various times on or after August 26, in groups ranging from about 20 to hundreds of people. The majority were foreign women and children, but there were smaller numbers of older, wounded, or fighting-age men. Most women said their husbands were also non-Iraqi, and had been killed in fighting in Mosul or more recently in Tel Afar. Many had lived in the al-Askari neighborhood in Tal Afar.

Those fleeing found themselves stuck in a zone between Iraqi forces advancing from the south and a front line held by Kurdish Peshmerga forces in the north. All the women interviewed said they had surrendered to Peshmerga forces, who later transferred them to the custody of Iraqi forces.

The women described passing the town of Ayadiya, 17 kilometers north of Tal Afar, before meeting Kurdish forces, in an area of active fighting along a route strewn with landmines. Five of the women said they saw body parts or dead people along the route and some said that they saw incoming fire that killed some people fleeing. In most cases they could not attribute the source of the attacks. One woman said she saw a 12-year-old boy hit by a gunshot that blew off his leg below the knee. Another woman said that she saw a helicopter fire on a group fleeing ahead of her.

Surrender to Kurdish Forces, and Alleged Killings of Boys and Men
The women consistently said that Peshmerga soldiers gave them water and food, and facilitated the evacuation of some of the wounded and sick in ambulances. Some women said the soldiers took their money or gold. All the women said that when they surrendered, Peshmerga soldiers separated women from men and boys ages 13 or 14 and older, and took everyone to an empty school compound, apparently in the village of Saleh al-Malih. At the school, the Peshmerga placed the women, girls, and younger boys in classrooms, and the men and older boys along the inside of one of the walls that enclosed three sides of the compound, with their arms tied behind their backs.

Women who were there on the afternoon and evening of August 28 described seeing between 150 to 200 men and boys on the inside of the compound wall. Two women said they saw an older, heavy-set man with white hair, wearing a red T-shirt, lying unmoving on the ground for hours and apparently dead, among the men and boys seated next to the wall. They said a Peshmerga soldier walked back and forth in front of the men and boys, hitting them with his belt. Three women also said that they saw a group of around 20 men in their 20s and 30s, whom they described as ISIS soldiers, with arms tied, outside an earth mound along the fourth side of the compound.

These women said they arrived at the school at around 10 or 11 a.m. and that at around 1 p.m., a foreign woman who was apparently being checked by female Peshmerga soldiers at the school entrance detonated a bomb she was wearing or carrying, killing and wounding Peshmerga soldiers and displaced people. A KRG official said the bombing killed three soldiers. A UN report stated that a suicide bomber killed a child and two women and wounded 11 people, including 6 civilians. One witness had a small scar on her face and a bandage on her left forearm, which she said were from injuries caused by the explosion.

Two women, interviewed separately, said that minutes later, they saw Peshmerga soldiers shoot at least six men near the earth berm. The women did not know the victims or whether any were children, but “two of them were young and the other four had beards,” one woman from Syria said. They said the men’s arms were tied and that they did not appear to pose a threat. Three other women also described hearing an explosion, followed within 5 to 10 minutes by gunshots. The women said that shortly afterward, a Peshmerga soldier in a white flatbed truck drove with the men’s dead bodies around the school compound, and that they saw soldiers put the remaining members of the group of men outside the berm onto other trucks and drive away with them. It is not known what happened to the men.

In a separate incident, a Syrian woman in her 20s said that Peshmerga forces shot her husband, who was Turkish, and another Turkish man, both ISIS members, after they surrendered on August 30:

 

My husband had told the Kurds that he would surrender us and give back our Yezidi slave girl, and they told him we could go to Turkey, but then we surrendered and he was talking with another [ISIS member]. I was six meters away from him. I heard gunfire and turned around and his bloody body was on the ground. The other [ISIS member] started running and they shot him down.

 

In response to Human Rights Watch, a KRG spokesperson stated that “government sources strongly reject the allegation” that Peshmerga forces extrajudicially executed men at the school at Saleh al-Malih on August 28. He said Peshmerga had unsuccessfully attempted to negotiate with the woman suicide bomber, who killed three soldiers and wounded two. On August 30, the spokesperson said, Peshmerga forces, who had been alerted by a Yezidi woman’s family that she was being held captive, shot and killed her Turkish captor when he arrived at their lines, threatening to kill her.

Transfer to Iraqi Forces; Disappearances of Men, Boys
The women said that Peshmerga soldiers held them at the school compound for varying amounts of time, not exceeding 24 hours, then loaded them and their younger children onto buses that took them to areas under the control of Iraqi forces, and ultimately to the Hammam al-Alil site. The military forces in control of the busses were Iraqi, not Peshmerga, soldiers.

The women described a large convoy of more than a dozen buses. Some women said that older men or wounded men were loaded onto the buses as well, but that most passengers were women and young children.

The women said that was the last they saw of the men and boys held along the school wall. Human Rights Watch interviewed women who were relatives of Turkish men ages 20, 43, 73, and around 45; an Azeri man in his 40s; and a Trinidadian man of 53 who last saw them at the school compound and do not know their whereabouts. Two Syrian women named eight women, four Syrian and four Azerbaijani, they last saw at the compound who had not turned up in Hammam al-Alil, and whose whereabouts they didn’t know.

Several women said Iraqi forces stopped their buses at checkpoints on the way to Hammam al-Alil, screened the passengers, and removed suspected ISIS members. At one of these stops, one woman said, a person whose identity was obscured by a mask identified 10 men and boys who were taken away by security forces that she could not identify, before the buses continued. A second woman said that Iraqi forces took her and other bus passengers into an empty building that was still under construction for screening.

Another woman, who was on a different bus, said that after it had passed two checkpoints, Iraqi security forces stopped it at a checkpoint in Hamdaniya, a Christian town 16 kilometers northeast of Hammam al-Alil, where a masked informant pointed out her Iraqi husband, age 56. A soldier took him and three other men from the bus to a prefabricated caravan at the checkpoint, and another soldier told her, “If he is innocent they’ll let him go.”

The woman, 39, has four young children, and insisted that her husband was not an ISIS supporter, and that the family had been in Mosul when ISIS took the city and had been unable to flee. Once the United States-led coalition started carrying out heavier airstrikes on Mosul, the family fled to Tal Afar, she said, where ISIS forces refused to let them leave.

According to international legal principles on the treatment of prisoners, Iraqi authorities have a duty to inform the families of the men who were taken off the buses, and to treat them humanely – regardless of whether they are ISIS supporters. Some Iraqi units have a record of enforced disappearances and executions of suspected ISIS members.

Treatment of the Women, Children
News media reported that Iraqi officials said Iraq was negotiating with the women’s home countries for their return. Human Rights Watch received information that the Azerbaijan embassy was pursuing the return of its nationals among the detained women and children.

Iraqi authorities should notify the women that they have the right to request consular support, and contact and facilitate consular access for women who wish to do so, while ensuring that women are not arbitrarily separated from their children except based on the determination that doing so would be in the child’s best interest. Iraqi authorities should ensure that women and children are not deported or repatriated if they would be at risk of persecution, torture, or unfair trials for their alleged Islamic State affiliation.

Iraqi authorities should protect the women and children from reprisal attacks, but not detain them or prohibit their freedom of movement unless they are suspected of specific crimes and have judge-issued warrants against them. Iraqi authorities and authorities in the women’s home states, if they are returned, should prioritize prosecutions for involvement in serious crimes.

Iraqi authorities should facilitate humanitarian access to them and their children, and ensure access to medical care and decent living conditions.

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

French soldiers patrol near the Eiffel Tower as part of the "Sentinelle" counterterrorism security plan in Paris, France, May 3, 2017. 

© 2017 Reuters
(Paris) — France’s National Assembly should amend abusive measures in a draft counterterrorism bill that would move a number of emergency powers into ordinary law without adequate safeguards, Human Rights Watch said today.

The Assembly’s law commission was scheduled to begin examining the bill on September 12, 2017. The bill, approved by the Senate in July, is being fast-tracked and is to go to a final vote in an extraordinary session of Parliament on September 25.

“France’s new counterterrorism bill grants the executive far-reaching powers to clamp down on the ability of ordinary people in France to worship, assemble, move freely, express themselves, and enjoy their privacy,” said Kartik Raj, Western Europe researcher at Human Rights Watch. “The National Assembly needs to take the time needed to scrutinize and revise the bill before it’s too late.”

The current version of the Draft Law to Strengthen Internal Security and the Fight Against Terrorism would end the state of emergency formally on November 1, after almost two years, but replace it immediately with a host of measures that write exceptional, emergency practices into normal criminal and administrative law. The bill now contains two important concessions, however: the new powers will lapse in 2021, and the government has to report back to parliament annually on how it uses the new powers.

The bill would grant increased powers to prefects, the interior minister’s local representatives, to designate public spaces as security zones, limiting who could enter and leave them; to limit the movement of people considered a national security threat; to close places of worship; and to search private property.

The judiciary would have no role in approving the use of the first two powers, although there would be a limited right of appeal for orders limiting where a person has to live and for closing places of worship. A judge – initially a special “liberty and detention judge”, and a Court of Appeal judge if the decision is appealed – will have limited oversight of search powers. The bill’s vague definitions of terrorism and threats to national security exacerbate concerns that the powers will be used in an arbitrary manner.

The draft bill also changes surveillance legislation, border controls and processes for the retention of passenger data, and includes a new requirement for financial reporting by any organization carrying out counter-radicalization projects as a public function.

Increased powers for prefects to designate public spaces or events as “perimeters of protection” for up to a month, allowing police to search people, bags, and vehicles, lack any requirement of a demonstrably serious or imminent threat, despite Senate efforts to introduce such language. The power would be renewable, in theory, on a rolling month-by-month basis. Given the lack of any legal powers to address discrimination in the use of these powers, these new powers risk exacerbating ethnic profiling against a background of longstanding concerns about discrimination in identity checks.

The current version of the bill replaces the system of “assigned residence orders” under the state of emergency, which can amount to house arrest and have led to significant abuses, with somewhat less intrusive restrictions now called “individualized administrative control and surveillance measures.” This system provides executive powers to require a person to remain within a geographic boundary, to report periodically to a police station, to accept an electronic surveillance bracelet, and to report any changes of residence. The powers can be imposed for vague and overly broad grounds without prior judicial authorization. The version before the National Assembly now includes a right to appeal the decision to an administrative tribunal when the government seeks to renew the restrictions.

The bill increases prefects’ powers to close places of worship without prior judicial authorization with the aim of “preventing acts of terrorism”. The definition of what constitutes a threat, despite minor amendments in the Senate that require the threatening ideas to be expressed in writing, lacks a clear link to the commission of a violent act, remains overly vague, and is open to abuse.

Search powers remain relatively unchanged from the earlier draft, although a requirement has been added for the judicial police officer present during a search to identify themselves formally in the written record of the search.

The powers as used in the state of emergency have drawn widespread criticism for leading to abuses while having limited impact on terrorism threats. Members of parliament who oversee their use and the Defender of Rights, the national human rights oversight body, have also expressed reservations.

Human Rights Watch and other groups have documented that assigned residence powers and the exercise of search powers have led to human rights abuses in France. Both the national and European human rights watchdogs criticized the draft bill while Senate considered it.

The entire legislative process, if completed by September 25 as anticipated, would grant the executive wide-ranging powers in an accelerated procedure that will have lasted just over three months, including the summer recess. Although limited formally until 2021, the law would potentially be open to further renewal after a review of its operation in 2020.

France already has expansive counterterrorism laws that permit the authorities to investigate, detain, and prosecute suspects, some of which have been used abusively. 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.”

“The sunset clause added by the Senate should not obscure the fact that this bill would normalize measures that have only been used under exceptional circumstances,” Raj said. “During these two crucial weeks to hold the legislation up to the light, the National Assembly has a duty to the people of France make sure it preserves human rights and the rule of law.” 

Posted: January 1, 1970, 12:00 am
(Nairobi) – Mali and Burkina Faso military operations to counter the growing presence of Islamist armed groups in central Mali have resulted in serious human rights violations. Since late 2016, Malian forces have committed extrajudicial killings, enforced disappearances, torture, and arbitrary arrests against men accused of supporting Islamist armed groups, while a June 2017 cross-border operation by Burkinabe forces left two suspects dead.
 
Human Rights Watch documented three common graves believed to contain the remains of at least 14 men executed after being detained by Malian soldiers since December. On several occasions, Malian forces severely beat, burned, and threatened dozens of men accused of supporting the Islamist armed groups. Human Rights Watch also documented 27 cases of enforced disappearance, in which the Malian government provided families no information on missing relatives who had been detained.
 
“The skewed logic of torturing, killing, and ‘disappearing’ people in the name of security only fuels Mali’s growing cycle of violence and abuse,” said Corinne Dufka, Sahel director at Human Rights Watch. “The Malian and Burkinabe governments should rein in abusive units and prosecute those responsible.”
 
The skewed logic of torturing, killing, and ‘disappearing’ people in the name of security only fuels Mali’s growing cycle of violence and abuse. The Malian and Burkinabe governments should rein in abusive units and prosecute those responsible.

Corinne Dufka

Associate Africa Director, Human Rights Watch

The abuses, which occurred between late 2016 and July 2017 during operations in Mopti region, and to a lesser extent in Ségou region, were documented during a 10-day research mission to Mali in July and by phone interviews in August. Human Rights Watch interviewed 48 victims of abuses and witnesses, in addition to community leaders from the ethnic Peuhl, Dogon, and Bambara communities; former detainees; local government, security and justice officials; and foreign diplomats.
 
Family members provided Human Rights Watch lists of the men believed to be buried in three common graves, all in the Mopti region. One contains the remains of five men allegedly killed on December 19, 2016; the second the remains of three men detained on January 21, 2017; and the third the remains of at least six men detained in early May 2017.
 
Two traders detained in June in Boni, Mopti region, described being bound, severely beaten, and burned after soldiers held their heads close to the exhaust pipe of a military truck. Witnesses said that 10 men were beaten and subjected to a mock execution, in which Malian soldiers threatened to burn them alive.
 
Family members and witnesses of those forcibly disappeared by Malian security forces said that they had learned through informal sources that several of the 27 men were thought to have been killed in custody, while others were believed to be held unlawfully by the Malian General Directorate of State Security (Direction générale de la sécurité d’État, DGSE), the national intelligence agency.
 
In June 2017, Burkinabe soldiers detained some 70 men from hamlets in Mali near the border, accusing them of supporting the Islamist armed group Ansaroul Islam. The soldiers allegedly burned property, administered severe beatings – which led to the deaths of two detainees – and brought more than 40 men across the border to Burkina Faso for further interrogation.
 
Human Rights Watch also documented serious abuses by Islamist armed groups in central Mali during the same period, including summary executions of civilians and Malian army soldiers, destruction of schools, and recruitment and use of children as soldiers. Increasing intercommunal violence near Koro, in Mopti region, has raised concerns of more widespread abuses. Human Rights Watch’s findings on these abuses will be published in a future report.
 
An elder from the Mondoro administrative area described how members of his community were suffering from abuses perpetrated by both sides: “In April the jihadists showed up, urging unemployed youth to join them, and a few weeks later they murdered a local leader and beheaded a local man they said was an army informant. In May and June, soldiers from Mali and Burkina Faso captured dozens of people… 17 members of my community have disappeared but people are terrified to talk about it. The behavior of both armies has strengthened the jihadist movement. Some young people have joined them after seeing their fathers tortured and brothers go missing.”
 
In May and June, soldiers from Mali and Burkina Faso captured dozens of people… 17 members of my community have disappeared but people are terrified to talk about it. The behavior of both armies has strengthened the jihadist movement. Some young people have joined them after seeing their fathers tortured and brothers go missing.

elder from Mondoro, Mali

All parties to Mali’s armed conflict are bound by Common Article 3 to the Geneva Conventions of 1949 and other treaty and customary laws of war, which provide for the humane treatment of captured combatants and civilians in custody. Individuals who deliberately commit serious violations of the laws of war, including summary executions and torture, may be prosecuted for war crimes. Mali is a party to the Rome Statute of the International Criminal Court.
 
Domestic and international human rights groups, including Human Rights Watch, have consistently raised their concerns with the Malian government through letters, reports, and meetings with high-level government officials. The media has also reported on some of these cases. Nevertheless, neither the military nor civilian justice systems have made a serious effort to investigate these alleged abuses and hold the responsible soldiers and officers to account.
 
The Malian and Burkinabe governments should promptly investigate and prosecute members of the security forces implicated in serious rights violations. The Malian government should cease holding suspects in unauthorized detention facilities, notably at the DGSE; ensure government gendarmes fulfill their mandated role of provost marshal by accompanying the Malian army on all operations; and ensure that security forces abide by international humanitarian and human rights law.
 
“The Malian government’s failure to hold its security forces to account has emboldened abusive soldiers to commit further grievous crimes,” Dufka said. “To stop the erosion of public confidence in the security forces and provide justice for victims, the government needs to investigate and punish serious rights violations.”
 
Background
 
In 2012, Mali’s northern regions fell to separatist ethnic Tuareg and Al-Qaeda-linked armed groups. The French-led military intervention in 2013 and the June 2015 peace agreement between the government and several armed groups resulted in some stability in the north.
 
However, since 2015, Islamist armed group activity and abuses have spread into central Mali. Groups linked to Al Qaeda have attacked army bases and police and gendarme posts; executed about 50 accused army informants and officials, including mayors and local administrators; closed schools; and increasingly imposed harsh restrictions based on their interpretation of Islam.
 
In the first half of 2017, the Malian Armed Forces (Forces Armées Maliennes, FAMA) carried out a series of operations on their own and in collaboration with French and Burkinabe forces. Mali, Burkina Faso, and Niger agreed in January to establish a regional joint task force to combat rising insecurity in the area where the three share borders.
 
In July, Mali, Mauritania, Burkina Faso, Niger, and Chad launched a multinational counterterrorism military force, known as the G5 Sahel Joint Force (Force conjointe du G5 Sahel, or FC-G5S), to combat Islamist armed groups in the region. The G5 force will coordinate their operations with the 4,000 French troops and 12,000 United Nations peacekeeping troops already in Mali.
 
Malian Security Force Violations
 
Soldiers and national guardsmen operating in or around the towns of Mondoro, Boni, Sévaré, and Boulekessi, in Mopti region, and Diabaly and Nampala, in Ségou region, were implicated in arbitrary arrests, torture, summary executions, and enforced disappearances. Some appeared to be in retaliation after armed Islamists attacked or killed government soldiers. As has been the case since 2012, most detainees said the abuse stopped after they were handed over to government gendarmes, who often provided medical care. Since at least 2013, soldiers based in all of the aforementioned towns have been implicated in similarly serious abuses. Virtually none of these security force abuses have been investigated.
 
Arbitrary Arrests
 
Human Rights Watch documented the detention of 114 men by Malian security forces in central Mali between December 2016 and June 2017. The detainees, the vast majority of whom were ethnic Peuhl, were held for their suspected support for Islamist armed groups.
 
Most were released because of insufficient evidence after their cases were reviewed by a judge working with the Bamako-based Special Judicial Cell to Combat Terrorism and Transnational Organized Crime, which is mandated to review and adjudicate all cases involving alleged crimes by Islamist armed groups.
 
Lawyers, judges, and community leaders consistently told Human Rights Watch that they believed the evidentiary basis for many detentions, including many of those documented in this report, is weak and sometimes based on false intelligence provided by people to settle personal scores.
 
Torture and Ill-Treatment
 
Human Rights Watch documented dozens of cases of torture and other ill-treatment committed by Malian army soldiers during interrogations in the first few days after detention, even though soldiers are not authorized to interrogate detainees. The abuse took place in army bases, at bush camps, and at checkpoints.
 
The detainees, many of whom had scars and showed visible signs of torture, told Human Rights Watch that they had been hogtied; pummeled with fists, gun butts, iron bars, and wood clubs; lashed with belts; kicked; burned; and repeatedly threatened with death. One suffered broken ribs, a few lost teeth, and several said they had been hospitalized to treat their injuries. They said they were routinely denied food, water, and medical care.
 
Most of those who spoke to Human Rights Watch described being bound at the wrists and ankles with cords or wire during their detention. Many had open wounds or scars from these restraints, which had cut through their flesh.
 
Malian army and National Guard units based in and around Boni, 220 kilometers from the garrison town of Sévaré in Mopti region, were extensively linked to torture. For instance, on June 23, soldiers arrested and tortured three traders – two Malians and one Burkinabe – whom they accused of supporting armed Islamists who had attacked the gendarme post in Boni the previous day. The arrests appeared arbitrary: two of the traders told Human Rights Watch that soldiers searched their homes, found no weapons, and, after several hours of abuse, freed them without further questioning. One trader, who lost two teeth from the beatings, said:
The FAMA arrested me at the market where I was selling my wares – they didn’t tell me why. At their camp, they said, “We brought you here to kill you.” They took my money and my watch and over the next two hours we were kicked and beaten with batons and gun butts. They picked me up and slammed my head against a truck two times… two of my teeth came out, and two are now loose. I lost consciousness and blood was pouring from my mouth. They picked up the Burkinabe driver and beat his head against the ground… he was bad off. He’s in the hospital in Djibo [Burkina Faso].
This man and another alleged that the soldiers burned them with the exhaust pipe of a vehicle. The second said:
They accused us of selling things to the jihadists. After being beaten, I heard the vroom vroom of a vehicle. They picked me up and held my head to the exhaust pipe of a big truck until my head was on fire. A soldier finally said, “Enough now, stop…. they could die.” Later, the soldiers took us to the gendarme post, but when they [gendarmes] mounted the truck and saw the state we were in – bleeding from the mouth, on the head, swollen, unable to walk – they got angry at the soldiers and refused to take us. The gendarmes and FAMA really yelled at each other… the gendarmes told the FAMA to take us to the hospital, which the soldiers did.
Two other men said that on June 22 or 23, they were beaten and one was burned by soldiers based in the military camp at Diabaly, 140 kilometers from Ségou. “They accused me of being involved with the jihadists,” said one man. “I was held for three nights. On the final night, they beat me on my back, and kicked me with their boots. I’m not sure how long it lasted – I was beaten until I lost consciousness. The next day, they dripped burning plastic all over my shoulder and back.”
 
This man said a second detainee was also severely beaten: “As I was being taken from their camp, I met another man who had been so badly beaten he could not stand up.” After the soldier brought the victims to the gendarmerie in nearby Niono for questioning, the gendarme commander became visibly angry. “He told the army officer he should pay for our medical treatment… but I said, ‘No, forget it… I just want my freedom,’” the man said. After investigating the allegations, the gendarmes released the man.
 
On May 8, soldiers detained 10 men, ages 19 to about 50, from several hamlets near Boni. All 10 were severely beaten and told they would be shot or burned alive. According to a community elder who provided care to the men once they had been transferred to Bamako, “Days after their arrest, their hands, feet and heads were still swollen; every one of them had bruises or scars; a few couldn’t sit down because of how violently they were beaten.” After seeing a judge in Bamako in late May, at least eight were released. One of the men described their ordeal:
The soldiers found me near the well. They accused me of being with AQIM [Al Qaeda in the Islamic Maghreb], asked for my gun and said, “Where are the jihadists?” They stole 143,000 CFA [US$260] and took me away with six others. It was a huge operation – they drove a while, then they put us in a hole on the road created by a land mine explosion earlier this year. They argued about whether or not to kill us there. “Should we kill them now?” said one. “Go grab the shovels,” said another. “No, they’ll find out in Bamako.” Some of our brothers are buried in common graves in Issèye and Yirima, so we were sure we would follow them.
 
Later they put us into another hole – over a meter deep – near the Boni army checkpoint. In the hole were three other men, all blindfolded, bloody and swollen. They blindfolded us and bound our hands, and they made us, too, lie down in the burning sun as the abuse started. They beat us with iron bars, kicked us repeatedly and insulted our parents. It went on for hours… they spilled liquid on us, saying it was gasoline, that they would burn us alive. They didn’t even ask us questions, just accused us of being jihadists. We were desperately thirsty after hours in the sun, which in May is hotter than fire itself, but they refused.
 
We went two days without eating and only got medical care once we reached Bamako. In total we spent 26 days in custody. Even now, months after the abuse, I’m still suffering… even yesterday I tried to work but I just couldn’t.
Human Rights Watch documented a few cases in which army officers intervened to stop abuse being meted out by their subordinates. A witness described one such case from March involving soldiers from Ténenkou, Mopti region:
It happened at an army checkpoint a few kilometers from town. The soldiers were beating the man, who was around 35, then took paper, set it alight and burned his belly. About 30 minutes later, an officer arrived, asking angrily, “Why are you doing this?” The soldiers said they’d been tipped off that the man was selling weapons to the jihadists; that he had been found with a lot of cash. The man explained that he was an animal trader and had just sold some of his cows. The chief ordered the soldiers to stop the abuse and take him to the hospital for treatment.
...[the soldiers] put us into another hole... They blindfolded us and bound our hands... They beat us with iron bars, kicked us repeatedly and insulted our parents. It went on for hours… they spilled liquid on us, saying it was gasoline, that they would burn us alive. They didn’t even ask us questions, just accused us of being jihadists.

Man detained by Malian security forces in May 2017

Human Rights Watch interviewed 18 men and four boys, ages 14 to 17, who alleged being mistreated by soldiers after their arrest in May from villages near Mali’s border with Burkina Faso. Two months later, nearly all showed visible scarring around the wrists and ankles; the hands of two men were still bandaged, while six had scabs and scars from what appeared to be deep gashes on their wrists. They said their hands were tied for over two days, including during the long journey from central Mali to Bamako. One man had visible scars around his throat, saying it was from “when I was attached within the pickup for hours on the bumpy road, with a cord around my throat... they only removed it after I passed out.”
 
Ten of these were initially detained in a joint operation involving the Malian army and French forces. “When the French were there, they made us lie down while they searched our houses, but didn’t tie or beat us; the French took pictures of us,” said one.
 
The men said abuse started the following day, after the French and a Malian gendarme had left the area and the detainees were taken to Douna, 24 kilometers away from their villages. “As we got out of the truck, they threw us to the ground and beat us with guns,” one said. “When we begged for water, the soldiers forced the water into my nose, to make me feel like I was drowning.” Another detainee described how a soldier put his head in a chokehold and said, “We will cut your throat like a sheep.” Two other men said they had been stabbed in the shoulder with a small knife.
 
Human Rights Watch also documented the death of a 50-year-old man after he had been severely beaten by Malian soldiers in May. Three witnesses said the man died at the hospital in Sévaré. According to one witness:

At 6 p.m., the army brought five men they had detained to the gendarmerie in Sévaré. They were in bad shape and really suffering; their faces were swollen; they were bleeding. The eldest of them couldn’t move and had to be carried into the cell. A few hours later, I heard people saying, “Give him water, he needs to drink, hurry...” But he couldn’t… he was dying. He was carried out of the cell at night… We learned from nurses that he died in hospital a few hours later. They said his body was covered with marks.

Human Rights Watch documented one case of severe mistreatment by government gendarmes. In late March 2017, gendarmes in Sévaré allegedly beat seven men from a village near Djenné, including a Quranic teacher. “During the night, a few of the gendarmes came into our cell and kicked and beat us. One man broke a few ribs and two others bled from their noses,” one detainee said.

Summary Executions and Common Graves

Human Rights Watch documented the existence of three common graves which witnesses and family members allege contain the remains of at least 14 men killed shortly after they were taken into custody by the Malian security services between late December 2016 and May 2017. All three are located within the Mondoro or Koro administrative areas in Mopti region, near Mali’s border with Burkina Faso.

“We all know about the common graves near Mondoro, but no one has filed a judicial complaint,” one witness said. “People are terrified to open their mouths – we’re all just trying to avoid further abuses.”

In August, community leaders gave Human Rights Watch photographs of what they believed to be a common grave about seven kilometers south of Mondoro, containing the remains of at least six of 17 men who went missing following their arrest by soldiers between May 2 and 9. A local businessperson said:

Around 11 a.m., I was in the bush when I heard the sound of gunfire. I saw three or four army vehicles about 200 to 300 meters away, off the main road. I felt something wasn’t right and crouched down. … I heard a second wave of gunfire. I stayed hidden for 15 minutes, until they left towards Mondoro on the main road. Later, I went there and saw a mound of dirt… like a newly dug grave, and the tire tracks. Things are tense in our zone. I am very frightened.

Two other common graves previously reported on by Human Rights Watch have yet to be investigated by the Malian authorities. The first, according to four witnesses from Yirima, allegedly contains three members of an extended family detained by soldiers on January 21 and later executed. One witness said:

The soldiers bound their eyes and drove off toward Mondoro [26 kilometers away]. Some minutes later we heard gunshots in the distance. We followed the vehicle tracks to Bamguel village, 18 kilometers away, and saw a grave there, newly dug, covered with branches of trees and many spent casings… We removed the earth and found our people there. I returned to our village to deliver the bad news.

The second grave allegedly contains five men from Issèye village detained and executed by soldiers on December 19, 2016. One of two witnesses said:

At about 11 a.m., 10 FAMA vehicles full of heavily armed soldiers stormed the village. They didn’t stay long. They detained the village chief first, then the others. Around 4 p.m., we heard gunfire, and the next morning we found the shallow grave just a few kilometers away. We uncovered the bodies… the chief was on top… each had several gunshot wounds.

Enforced Disappearances

Witnesses and family members described the enforced disappearance of 27 men, all of whom were last seen in the custody of Malian security forces. The men were detained from June 2016 through June 2017 during military operations in Mopti and Ségou regions. Family members said the government has provided no information on the fate or whereabouts of those detained, although some families have obtained information through informal sources.

Witnesses and family members provided information to Human Rights Watch suggesting that at least nine of these men were executed by the security services in the days after their detention. Other family members alleged that they had information that several others were being held in extrajudicial detention within the General Directorate of State Security (DGSE).

Human Rights Watch was given a list of 17 men from the villages of Mougnoukana, Douna, Kobou, Yangassadio, and Guedouware who have been “disappeared” since their arrest in early May. Several witnesses told Human Rights Watch that they had been arrested on May 2 with seven of the missing men.

“We’ve looked everywhere,” said a relative of several of the disappeared from Mondoro. “We asked the National Guard, FAMA and gendarmes, but our people are nowhere.”

Other cases of enforced disappearance in central Mali documented by Human Rights Watch include:

  • Samba Diallo dit Samba Niger, 67, a herder from Dogo (Mopti region), was detained by the security forces while waiting for a bus in the town of Mopti around June 8, 2016. Family members believe he was being detained at the DGSE.
  • Hassan Sidibe, 53; Boubacar Sidibe, 49; Boubacar Sidibe, 30; and Yonousa Sidibe, 30, were detained during an army operation in Tomoyi village, near the town of Ténenkou on January 17, 2017. Family members learned that they were being held in the DGSE.
  • Boura Alou Diallo, 32, arrested by soldiers near the village of Kokoli around January 23, 2017, was last seen tied to a tree near the Mondoro army camp. Family members believe he was executed in late January.
  • Hamidou Barry and Hamadoun Dambou, both about 25 and from Karena village, were arrested in January 2017 by gendarmes from a hospital in Douentza, where the former was being treated. The family believe they are being held in the DGSE.
  • Ibrahim Barry, 35, was last seen on February 3, 2017, after being detained by gendarmes based in Sévaré during a meeting in Mopti organized by a local nongovernmental organization. Family members said they believe Barry had been beaten to death in custody.
  • Sidi Koita, 34, was last seen on May 31 or June 1, 2017, being questioned by soldiers at a checkpoint a kilometer from the town of Nampala. Witnesses said he was questioned in relation to an ambush near Nampala the previous day in which several soldiers had died. Community members believe Koita was executed.

General Directorate of State Security

Human Rights Watch spoke with 24 former detainees who said they had been held in a detention center run by the DGSE for periods ranging from 27 days to five months. The men did not have access to family members or lawyers and were not permitted to make phone calls. They said they were not brought before a judge prior to or during their detention there.

A DGSE officer told Human Rights Watch that every person they detained had appeared before a judge and was under an arrest warrant. These claims were also contradicted by several lawyers, human rights advocates, and a judge, who told Human Rights Watch they knew several men detained by the DGSE who were being held extrajudicially.

All those interviewed said that they were regularly fed, received periodic medical check-ups, and had cells with fans or air conditioning. However, they complained of cramped sleeping conditions, and several said they lacked access to proper hygiene. One former detainee described being mistreated within the DSGE center.

Another former detainee, held in the DSGE center for 37 days between May and July, said:

There were 13 of us in my cell and eight in another cell. We were brought straight here from our villages. We ate okay and only one of us was slapped around a bit, but the weird part is that they only interrogated us once or at most two times. We don’t understand the law, but I know we didn’t see a judge until we were transferred from the DGSE to the gendarmerie five weeks later.

An elderly man held for over four months told Human Rights Watch:

There were 16 of us in the small cell. The entire time, none of us there had contact with our families. All that time… no sunlight – you don’t know if it’s night or day. I was only interrogated three times, at the beginning. The day I was freed, they put a black bag over my head, put me in a civilian car, drove several miles and told me to get out. I never signed any papers, never saw a judge… like it never happened. The day I walked back into my village… you should have seen their faces… they were convinced I was dead.

Burkina Faso Security Force Violations

Several witnesses from hamlets near Mali’s border with Burkina Faso described how, on June 9, Burkinabe soldiers detained about 74 men, ages 20 to 70. The soldiers accused the villagers of supporting the Burkina Faso Islamist armed group Ansaroul Islam, which also has bases in Mali.

Many of the men were severely beaten, and two detainees died from the mistreatment shortly after arriving in Djibo, Burkina Faso, witnesses said. They also alleged that the Burkinabe soldiers burned property during the operation.

One witness said: “The Burkina army received intel about a few [armed] Islamists in the area – several may have fled here after the big French operation in Foulsaré forest, further north – but they [the Burkinabe army] picked up every man they came across, whether farming, grazing their cows, or at home.”

Witnesses and community leaders said 44 men were taken to Burkina Faso for questioning and that seven still remained in detention there.

Several family members said neither the Burkinabe nor Malian authorities have informed them of the legal status of the detainees. “How can a foreign army come here, to Malian soil, and detain, beat, kill and imprison our people?” said one elder. “I just spoke with the father of a man killed. No one has called him to say his son is there. Should he have to go to Burkina himself and get his son’s body?”

While Burkinabe security forces are authorized to conduct cross-border operations, they are not, according to Malian Justice Ministry officials interviewed by Human Rights Watch, authorized to detain and question Malian residents in Burkina Faso. “The Burkina authorities do not have the authority to take people across our border for interrogation,” said a high-level official. “This would be arranged through a process of transfer or extradition.”

A 25-year-old farmer from the town of Kobou, seven kilometers from the Burkina Faso border, described what happened on June 9:

At about 9 a.m. I was in my field when I saw many vehicles full of soldiers. They were aggressive and started to beat me in my field, hitting me with their guns and a belt. They threw me in their vehicle with the others and took us to Dolga hamlet a few kilometers away. “Why are you working with the jihadists who kill us?” they screamed. They beat us there as well, but the terrible beatings happened at the moment of our arrest. Their medic stitched a few of us up. I was among the 30 who were freed the same day… but they took over 40 away to Burkina.

A 57-year-old farmer from Kobou village described the apparent death of a man named Bourema Hama Diallo:

They started whacking me on my back with belts from the moment they showed up at my farm. They threw me in the truck… it was a huge operation… when we got to Dolga I found nearly the whole male population there. Many were injured; Bourema among them – he’d been hit on his head and was bleeding a lot. He almost passed out before they put us in trucks and took us to Djibo, some to the police and some to the gendarmerie. I was one of 18 in a truck that went to the gendarmerie.

After arriving, they took off my blindfold and I saw that he [Bourema] was bad off. Seeing this the gendarmes said, “We need to take him to the clinic.” They had to carry him. I know he died because later that night the gendarme who guarded us said, “Two of your people died before arriving at the health center.” The second [man] wasn’t in my truck. I didn’t see the bodies after that, but I know Bourema’s father, and he has yet to see his son.

Posted: January 1, 1970, 12:00 am

Police escort a suspect who was detained during early morning raids in an operation against a group suspected of financing and recruiting Islamist militants in Santa Coloma de Gramanet, near Barcelona, October 16, 2008.

© 2008 Reuters

The death toll from the vile attacks which rocked Catalonia two weeks ago has now risen to 16, as some of the most gravely injured have succumbed to their wounds. Troubling details about the background of the alleged ringleader of the attacks in Barcelona and Cambrils continue to emerge. Questions remain about the level of information sharing between central and regional police authorities, and international security agencies.

Against this backdrop, there have been worrying attacks in the media – including in national broadsheets and on mainstream TV channels – against lawyers who defend people accused of terrorism. Some of the shrillest accusations – calling them “ethically reprehensible”, or pointing to their “professional connections with alleged jihadists” – have centered on two lawyers who have represented defendants in terrorism proceedings, including the suspected ringleader of the Barcelona attack as well as people arrested in previous counterterrorism operations in Catalonia in 2006 and 2008.

The media attacks are laden with politics; both lawyers have since been elected representatives of the left-wing parties Barcelona in Common and Popular Unity Candidacy, the latter of which favors Catalan independence. One is a deputy mayor of Barcelona, and the other is a deputy in the Catalan parliament. The upcoming referendum on the region’s future is bitterly disputed in Spain.

Bedrock principles like the rule of law face their hardest test in times like these. One of the hallmarks of a democracy that respects human rights is that people accused of terrible crimes enjoy the presumption of innocence and are allowed to defend themselves in a fair hearing before a court of law. These rights are enshrined in the Spanish constitution, as well as European and international law. And for them to have any meaning, criminal defense lawyers need to be willing and able to take on tough, unpopular cases, without fear of retribution or attack.

Spain’s government and major party leaders need to loudly defend these basic principles, as professional bodies (Catalan and Spanish alike) and activist lawyers have already done. Beyond political disagreements, leaders should remind the Spanish people that justice for terrible crimes can only happen when those accused of terrorism are tried according to the rule of law and allowed to properly defend themselves in court.

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

A mother shows a picture of her son, who was detained by authorities in the northern Syrian province of Idlib, Syria, March 20, 2016. She has not heard any news about her son since then.

© 2016 Reuters

(Beirut, August 30, 2017) – International backers of negotiations to end the conflict in Syria should ensure that any transitional process includes a robust independent body to investigate thousands of “disappeared,” Human Rights Watch said today. The United Nations designated August 30 as the International Day of the Victims of Enforced Disappearances to raise awareness about enforced disappearances around the world.

The UN Commission of Inquiry on Syria has determined that the use of enforced disappearance by the Syrian government is widespread, and may amount to a crime against humanity. An independent institution in charge of investigating the fate and whereabouts of the disappeared, as well as unidentified human remains and mass graves in Syria, should be created immediately, Human Rights Watch said. It should have a broad mandate to investigate, including by reviewing all official records and interviewing any official, and be backed with international political and material support.

“Syria will not be able to move forward if negotiations fail to adequately address the horrors of detention and disappearance,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “This should not be ignored. Without progress, each day that passes will likely see more of the disappeared tortured or executed.”

Even before the crisis began in 2011, Syrian authorities followed a policy of forcibly disappearing people for peaceful political opposition, critical reporting, and human rights activism. The use of enforced disappearances dramatically escalated since the uprising, and non-state armed groups have also engaged in abductions. Human Rights Watch has documented Syrian authorities’ systematic use of enforced disappearances, which frequently result in torture, death, and the absence of any information about the victim.

The exact number of disappeared in Syria cannot be determined because the overwhelming majority of detention facilities are off limits to outsiders. Those detained by government security services or many of the non-state armed groups in Syria are usually held incommunicado. The Syrian Network for Human Rights (SNHR) estimates that more than 65,000 people have been forcibly disappeared or abducted in Syria since 2011, the vast majority by government forces and pro-government militias.

UN Security Council Resolution 2139, adopted in February 2014, strongly condemned kidnappings, abductions, and forced disappearances in Syria, and demanded an immediate end to such practices and the release of all people arbitrarily detained. However, no concrete steps were taken to implement this aspect of the resolution and multiple rounds of political negotiations have failed to deliver any breakthrough.

Enforced disappearance is defined under international law as the arrest or detention of a person by state officials or their agents followed by a refusal to acknowledge the arrest or to reveal the person’s fate or whereabouts. Enforced disappearances violate a range of fundamental human rights protected under international law, including prohibitions against arbitrary arrest and detention; torture and other cruel, inhuman, or degrading treatment; and extrajudicial execution. Enforced disappearances also contravene the right to due process and fair trials.

Forced disappearances may inflict severe mental suffering on the families of the disappeared, who may go months or years without learning of their relatives’ fate. In their quest for information, families of the disappeared often face financial blackmail. For instance, in March 2012, government forces arrested Bassel Khartabil, a peaceful, free-speech advocate. In October 2015, Syrian authorities transferred Khartabil from `Adra prison, where his family could visit him, to an undisclosed location. On August 1, 2017, nearly two years after his disappearance, Khartabil’s wife learned that government forces had executed him.

International backers of the upcoming Astana and Geneva political processes should ensure that the issue of the detained and disappeared is thoroughly addressed in the negotiations, Human Rights Watch said.

Russia and Iran, the most prominent backers of the Syrian government, should press the government to immediately publish the names of all individuals who died in Syrian detention facilities, and to inform families of the deceased and return the bodies to their relatives. They should also press the government to provide information on the fate or whereabouts of all those forcibly disappeared, end the practice of enforced disappearance, and allow independent humanitarian agencies access to detention facilities.

Backers of non-state armed groups, including Turkey, Saudi Arabia, and the United States, should compel groups they support to reveal the fate of detainees in their custody and allow humanitarian agencies access to their detention facilities.

The UN mediator, Staffan de Mistura, should publicly address the reasons for lack of progress on Syria’s disappeared and strengthen efforts to address this devastating problem.

“The scale of forced disappearances in Syria means that the victims and their family members likely number in the hundreds of thousands,” Whitson said. “For any resolution to the conflict to be sustainable, the issue of the disappeared needs to be addressed in a manner that delivers both news of their fate and justice.”

Posted: January 1, 1970, 12:00 am

Author interviewing local Tabqa residents after ISIS had been pushed out of city (July 2017).

© 2017 Ole Solvang/Human Rights Watch

The Raqqa Civilian Council building was full of people with complaints when I visited in July. The council, based in the Syrian town of `Ayn Issa, was set up in April to govern the areas in Raqqa province that US-backed Syrian Democratic Forces (SDF) retake from ISIS. A local sheikh had come to seek the release of a relative who the SDF had detained on suspicion of being an ISIS member. Another local man was upset that the SDF had not arrested his neighbor, who he says had joined ISIS and had used his association with them to confiscate some of the local man’s property.

The scene that unfolded before me in rural Syria was not just about predictable local complaints. It illustrated a difficult policy question that runs all the way from the battlefields of Iraq and Syria through key international capitals: what should justice look like after ISIS? In other words, who should be prosecuted, by whom, and for what?

The question is a complex one. While the imperative for justice is overwhelming, existing justice mechanisms are underwhelming. Sorting through and properly prosecuting the grave crimes committed by ISIS in Iraq and Syria would be a challenge for any well-resourced and fully functioning judiciary. Some of the challenges include the sheer number and types of crimes, the difficulty gathering evidence for crimes that took place in the chaos of war, and the inevitability of having to conduct these investigations in a highly politicized and polarized environment.

For the judiciaries in Iraq and Syria – weak to begin with and now depleted by years of conflict and corruption – it is a nearly impossible task. And to make things worse, each of those countries has different judicial systems operating in various parts of the country that either do not cooperate or are openly hostile toward one another.

To face the challenge, the authorities in Iraq and Syria have opted to go with a blunt instrument. For the most part, they have relied on their counterterrorism laws and special counterterrorism courts to prosecute ISIS members as well as their suspected accomplices. An Iraqi judge at the Nineveh governorate’s counterterrorism court, which has jurisdiction over cases from the Mosul area, told Human Rights Watch recently that the court was working through about 2,000 cases involving people suspected of being ISIS members or affiliates. Across the border in Syria, the People’s Protection Court, a local court in charge of terrorism cases in the Democratic Union Party (PYD)-led autonomous administration in northern Syria, has handled more than 700 cases, a local judge told me last month.

It is easy to see why counterterrorism laws appeal to prosecutors. They can lock people up for a long time simply by proving membership in ISIS or that someone materially assisted the group or its members, without having to prove they committed specific criminal acts. But these laws and the courts that apply them are too blunt for the challenge at hand. They do not sufficiently distinguish between ISIS members who may have committed rape or executions, and those who simply worked as traffic police. And the definition of assistance is so broad that it has been applied to large swathes of the population that lived under ISIS. For instance, the laws in force could penalize doctors who worked in ISIS-run hospitals, lawyers who participated in ISIS courts, local shop owners who sold food to ISIS or filled their cars with gas. This is not just a hypothetical; in the past two weeks, Iraq has issued arrest warrants against at least 15 lawyers, apparently for the “crime” of practicing law in ISIS courts.

The overwhelming reliance on this counterterrorism framework is showing its limits. Judges and local officials in Iraq and Syria are realizing that you cannot lock everyone up. In June, the Raqqa Civilian Council pardoned 83 captured ISIS fighters whom it described as “low-ranking members without blood on their hands.” The council said that it was a goodwill gesture designed to promote stability and reconciliation.

Iraq passed a law in August 2016 that offers amnesty to anyone who joined ISIS or another extremist group against their will, and did not commit any serious offense such as torture, killing, or the use of explosives. The head of the Iraqi parliament’s legal committee, Mohsen al-Karkari, told Human Rights Watch during a meeting on February 7 that it was a roundabout way to limit the scope of Iraq’s wide-reaching counterterrorism law. According to the Iraqi Justice Ministry, authorities have released 756 prisoners since the law was passed.

Amnesties may be a necessary correction to expedited and often flawed trials as well as overflowing prisons, but the overall process is not delivering justice. Several Raqqa residents told me that they feared that those who benefitted from the June amnesty were not necessarily those with “clean hands” but rather those who had strong advocates among the key clans that the SDF is trying to accommodate to promote stability. In Iraq, the amnesty has failed to convince many judges or promote local reconciliation. A judge in the Nineveh counterterrorism court told Human Rights Watch that in his opinion those who supported ISIS even with the simplest actions like cooking, were as culpable as the fighters, and that he had no interest in claims from defendants that they joined the group against their will.

It is time to recognize that the overreliance on counterterrorism laws and courts to judge acts conducted during ISIS rule is producing a failed outcome. What is needed is to apply the judicial equivalent of medical triage: prioritize the prosecution of serious crimes and explore alternative avenues to address lesser crimes. Authorities in Iraq and Syria should concentrate the limited judicial resources on investigating the gravest crimes committed by ISIS members. They should encourage victims to participate in such proceedings. Terrorism charges can still be relied on when appropriate but it will be essential to investigate and prosecute serious underlying crimes such as rape, execution, and kidnapping, to establish accountability for specific acts, and to provide victims with a sense of justice for the crimes committed against them.

Given the scale and nature of crimes committed by ISIS, efforts to introduce international crimes, such as war crimes and crimes against humanity, into Iraqi and Syrian law should be a priority so that these crimes can be properly prosecuted. Without proper international support and political backing, it is doubtful that Iraqi and Syrian courts would be able to successfully prosecute such cases.

For lesser crimes, notably nonviolent crimes, alternatives to criminal prosecution are needed. The intent is not to sweep certain crimes under the rug but rather to seek alternative ways, such as financial compensation to victims, public apologies, and property restitution to promote victims’ rights and ensure reconciliation. Justice and the notion of triage do not always sit well together but given the actual judicial options and resources available, it would be a vast improvement over the current approach.

Nadim Houry is the terrorism/counterterrorism program director at Human Rights Watch.

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