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.
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.
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.
As Co-Director of the US Program, Maria McFarland Sánchez-Moreno guides Human Rights Watch’s work on national security, criminal justice, immigration, surveillance, and drug policy 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 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.
"Deadly Threats: Successors to the Paramilitaries in Colombia ," (February 2010)
"Your Reaction to NSA Curbs," on BBC World Service’s “World Have Your Say” (January 2014)
Interview with PBSNewshour "Why Does U.S. Having Varying Responses to Mid-East Unrest?"
Multiple witnesses told Human Rights Watch that the bodies of those killed, including bodies of members of Iraqi security forces, were thrown into a naturally occurring sinkhole at a site known as Khafsa, about eight kilometers south of western Mosul. Local residents said that before pulling out of the area in mid-February, ISIS laid improvised landmines at the site, which are sometimes referred to as improvised explosive devices or booby traps.
“This mass grave is a grotesque symbol of ISIS’s cruel and depraved conduct – a crime of a monumental scale,” said Lama Fakih, deputy Middle East director at Human Rights Watch. “Laying landmines in the mass grave is clearly an attempt by ISIS to hide evidence of its crimes.”
(Washington, DC) – Members of the Global Coalition against Daesh (another name for the Islamic State) meeting in Washington, DC, on March 22 should make protecting civilians and justice for victims priorities in their ongoing battle against the group, Human Rights Watch said today in a memorandum to the participants. Based on violations documented, Human Rights Watch highlighted five key areas that coalition members need to improve in their conduct of operations.
US Secretary of State Rex Tillerson will host the foreign ministers of the Global Coalition working to defeat the Islamic State (also known as ISIS). It will be the first meeting of the full coalition, now at 68 members, since December 2014. The aim of the meeting, according to a coalition press release, is “to accelerate international efforts to defeat Daesh in the remaining areas it holds in Iraq and Syria and maximize pressure on its branches, affiliates, and networks.” ISIS has carried out war crimes and atrocities amounting to crimes against humanity, including systematic rape.
“In fighting ISIS, coalition members should not lose sight of the fact that their aim should not just be to retake territory but to make sure they take all precautions to protect the people still living in these areas,” said Nadim Houry, terrorism and counterterrorism director at Human Rights Watch. “A victory against ISIS that does not address the security needs of civilians and leaves them at the mercy of revenge attacks will ring hollow.”
Human Rights Watch urges coalition members to make the following commitments:
- Take all feasible precautions to avoid civilian casualties and investigate potentially unlawful strikes: Given the discrepancy in reporting of the various coalition members, the coalition should establish baseline public reporting and investigation standards for all coalition members.
- Cease support for any abusive groups: Human Rights Watch has documented widespread violations by ground forces battling ISIS. These violations include summary executions, beatings, and torture of men in custody, as well as arbitrary detention and enforced disappearances, destruction of civilian objects, use of child soldiers, and mutilation of corpses. Despite these reports, the coalition has yet to develop procedures for robust vetting and investigations of allegations of abuse by local partners.
- Provide safe passage to fleeing civilians and provide sufficient support to displaced people: Aid agencies are bracing for the possibility that an additional 300,000-320,000 civilians may flee in coming weeks from western parts of Mosul during the Iraq operation. People fleeing have reported grave dangers in trying to escape. The UN Humanitarian Coordinator for Iraq has reported that aid agencies are operating “at their limit.” Aid workers have expressed similar concerns regarding any future offensive on Raqqa in Syria. Coalition members should ensure that there is a clear and coordinated plan for civilians to flee areas of fighting for safety and to get the aid they need once they have reached safety.
- Clear commitment to justice for victims: There has been considerable media attention surrounding the grave crimes committed by ISIS in violation of international law, but few concrete plans to provide justice for these crimes. Many ISIS victims are left without any access to justice or assistance. Coalition members should make justice a key pillar in its fight against ISIS by adopting concrete measures to assist victims, collect and preserve evidence, and support efforts to investigate and prosecute serious crimes. Beyond the crimes that ISIS has committed, other actors who have committed grave crimes should also be held to account.
- Increase efforts to survey and clear landmines and explosive remnants of war: Improvised mines laid by ISIS have killed and injured hundreds of civilians returning to their homes, including children. UN Mine Action Service (UNMAS) officials have estimated that it could cost $50 million to remove mines, which are often referred to as victim-activated improvised explosive devices or booby traps, from in and around the Iraqi city of Mosul. In Syria, UNMAS estimates that more than 6.3 million people including 2 million children live in contaminated areas after nearly six years of war. Mine clearance efforts should be a priority to ensure the safe return of civilians.
“What happens after ISIS is defeated is in many ways as important as the actual defeat of ISIS,” Houry said. “The coalition will not be able to say, ‘Mission Accomplished’ without addressing justice, governance, and displacement.”
On March 22, 2017, US Secretary of State Rex Tillerson will host the foreign ministers of the Global Coalition combating the Islamic State, known as ISIS. This meeting will be the first meeting of the full coalition, now at 68 members, since December 2014.
Human Rights Watch has in the past raised concerns with US, Iraqi, and other local forces regarding alleged violations of international humanitarian and human rights law during military operations against ISIS. The below memorandum highlights five areas of concern related to the upcoming operations against ISIS, and offers some recommendations to coalition members in light of alleged violations we have documented so far.
1. Take all feasible precautions to avoid civilian casualties; investigate alleged unlawful strikes
Human Rights Watch has documented several missile and aerial attacks carried out by US-led coalition forces which caused civilian casualties. In the Syrian city of Manbij, Human Rights Watch documented six possible US-led coalition airstrikes that killed at least 24 civilians, including 15 children. In one coalition airstrike on the Syrian village of Tokhar, Human Rights Watch collected the names of 97 civilians, including 62 children, who died. No information regarding the investigation into these attacks has been made public yet.
According to official coalition statistics, its strikes have killed at least 220 civilians since the start of the anti-ISIS campaign, known as Operation Inherent Resolve. However, the true casualty figures for civilians are likely higher. Airwars, an organization that tracks allegations of civilian deaths in detail, reports that at least 2,590 civilians were likely killed in coalition strikes. Amnesty International examined 11 coalition airstrikes in Syria that they estimated killed some 300 civilians in ISIS-controlled areas.
Underreporting of civilian casualties by military official sources are due to various reasons. Coalition members do not have the same policies when it comes to reporting strikes and investigating allegations of civilian casualties. For example, many coalition partners, including Saudi Arabia, Jordan, the Netherlands, Belgium, and Denmark, do not report in any detail the dates and locations of their airstrikes, making any investigation impossible. For countries that do report their airstrikes, such as the US, the process of investigating allegations of civilian casualties tends to be dominated by internal, air-only assessments – processes which tend to dismiss or sideline ground reports of non-military origin. This discrepancy was clear in a Washington Post investigation that found that at least eleven civilians died in a May 2015 strike in Iraq – mostly women and children – in an attack the US claimed had only killed four. The discrepancy was due to the way the US had conducted its initial assessment by solely relying on what was visible from the air.
International law requires compensation for civilian victims in the event of violations of international law. Warring parties have also instituted programs, such as in Afghanistan, to provide payments for loss of civilian life and property without a showing that a violation has occurred, – often known as condolence payments. In Iraq and Syria there is no clear mechanism for civilian victims or surviving relatives to obtain any form of compensation. In 2015, the US government agreed to set aside $5 million for the Defense Department to use in Iraq if the US military harms a civilian or destroys their property. However, it was not made clear how victims can lodge a complaint or seek compensation and this fund did not seem to extend to victims in Syria. To date, it is not known if any Iraqi or Syrian victim has been able to obtain any compensation for strikes conducted under Operation Inherent Resolve.
The need for more robust mechanisms to protect civilians is made more urgent by the intensification of the fight against ISIS and a push by the new US administration to potentially loosen rules of engagement. On January 28, President Trump signed a national security memorandum directing the military to give him a plan to defeat ISIS. It said the plan should include “recommended changes to any United States rules of engagement and other United States policy restrictions that exceed the requirements of international law regarding the use of force.” The push for looser rules is taking place at the same time as US Marines have deployed to Syria reportedly to operate artillery units in support of the battle for Raqqa.
Human Rights Watch urges coalition members to:
- Take all feasible precautions to avoid civilian casualties when conducting attacks;
- Establish baseline public reporting and investigation standards for all members of the coalition;
- Publicly disclose information about civilian casualty figures;
- Promptly and thoroughly investigate credible allegations of civilian casualties from military operations and report on findings. Investigations into casualties should include engagement with external independent casualty monitors.
2. Don’t support abusive groups
Coalition forces support local forces on the ground and in turn rely on them for targeting information. Human Rights Watch has documented widespread violations committed by ground forces battling ISIS. These violations include summary executions, beatings, and torture of men in custody, as well as arbitrary detention, enforced disappearances, destruction of civilian objects, use of child soldiers, and mutilation of corpses by government forces.
Of particular concern are screening procedures and detention of men and boys fleeing ISIS areas. Groups within the military are screening and subsequently sometimes detaining men fleeing Mosul, including in unidentified locations where they are cut off from contact with the outside world.
The Popular Mobilization Forces (known as the PMF or Hashd al-Sha'abi) are apparently screening the men for suspected involvement with ISIS. Given these groups’ lack of training in screening, the irregular nature of these screenings and detentions, and the detainees’ lack of contact with the outside world, the detained men are at heightened risk of abuse, including arbitrary detention and enforced disappearance.
There are also concerns about revenge attacks against alleged families of ISIS members. Sunni tribal groups in Iraq (known as the Hashad al-`Asha'ri) within the PMF, and Iraqi soldiers recently forced at least 125 families who were accused of having some familial ties to ISIS out of their homes. Human Rights Watch also previously documented security forces from Iraq’s Kurdistan Regional Government unlawfully destroying large numbers of Sunni Arab homes, and sometimes entire villages, in areas retaken from the ISIS.
Some of the local allies of coalition forces have been guilty of recruiting and using child soldiers, including two Iraqi government-backed tribal militias (Hashad al-Asha`ri) as well as Kurdish groups participating in the fight against ISIS.
Human Rights Watch urges coalition members to:
- Cease coordination with or assistance to armed groups or parties that commit widespread or systematic abuses, including those who recruit and fail to demobilize child soldiers;
- Develop mechanisms to investigate allegations of abuse by local armed groups;
- Implement vetting procedures to curtail abuses by local armed groups;
- Work to ensure that only bodies with a screening mandate can screen people and ensure that anyone detained is detained under clear provision of Iraqi law, held in a recognized detention center accessible to independent monitors, and granted all due process rights enshrined in Iraqi and international law, including being brought promptly before a judge. The authorities should also promptly notify the families of detainees of the whereabouts of their relatives and publish overall numbers of detainees.
3. Provide safe passage to fleeing civilians, provide sufficient support to displaced
The government of Iraq has reported that 180,000 civilians have fled western Mosul since mid-February, when military operations to retake the western districts of the city began. Humanitarian agencies are bracing for the possibility that an additional 300,000-320,000 civilians may flee in coming weeks. People fleeing have reported grave dangers in trying to escape. The UN Humanitarian Coordinator for Iraq has reported that humanitarian agencies are operating “at their limit.”
Humanitarian workers have expressed similar concerns with regards to any future offensive on Raqqa. According to the Office for the Coordination of Humanitarian Affairs (OCHA), as a result of a Raqqa offensive, more than 360,000 people will be in need of humanitarian assistance in Raqqa district, including more than 160,000 displaced persons. Staff from humanitarian organizations working to meet the needs of those affected by fighting in Raqqa have told Human Rights Watch that civilians there will require access to healthcare, especially sexual and reproductive health for women and girls, food assistance, and access to potable water. They anticipate that health facilities and water pumping stations may have been severely damaged due to airstrikes and will need to be repaired or alternatives found, and that there is likely a shortage of medical professionals in the city.
Human Rights Watch urges coalition members to work with local forces to:
- Ensure there is a clear and coordinated plan for civilians to flee areas of fighting for safety and to access humanitarian aid;
- Protect civilians fleeing and in camps from attacks or any form of revenge;
- Allow freedom of movement for all displaced persons in areas under their control, including those displaced persons who wish to reside or travel outside of formal camps. Movement restrictions should only be imposed if “provided by law…and necessary to protect national security, public order, public health or morals, or the rights and freedoms of others,” and where the restrictions are proportionate in terms of time, extent, and impact on people’s lives, as outlined in the International Covenant on Civil and Political Rights.
4. Commit to justice for victims
There has been considerable media attention to the grave crimes in violation of international law committed by ISIS, but little by way of concrete plans on how to provide justice for these crimes. Victims of ISIS are often left with little assistance or support, and in some cases are even perceived suspiciously by fellow Iraqis or Syrians given that they were in the custody of or lived under the control of ISIS.
In March 2015, Iraq’s Council of Ministers declared ISIS crimes against Yezidis to be genocide, but Iraq has no provisions in its domestic law for war crimes, crimes against humanity, and genocide. A “Genocide Committee” in Dohuk, a major city in the Kurdistan Region of Iraq, which was established by the Kurdish government, is attempting to document these crimes but so far it appears that there have been no judicial investigations against captured ISIS members for war crimes or crimes against humanity. The primary exception to lack of trials has been patently unfair trials, in July 2015 and February 2016, each lasting all of two hours, that convicted at least 36 men for the mass killing a year earlier of up to 1,700 Shia military cadets.
Investigating and prosecuting grave abuses presents real challenges. But this can be overcome by developing a concrete and comprehensive plan that would support victims, provide expertise to collect and preserve evidence, assist in local and international investigations, and push political leaders to prioritize justice.
Human Rights Watch has repeatedly urged that the International Criminal Court (ICC) be given jurisdiction over the situations in Iraq and Syria, either through the Iraqi government becoming a member of the ICC or through a Security Council referral in the case of Syria. This would allow for possible prosecution of war crimes, genocide, and crimes against humanity by all parties to the conflicts. A move by the Iraqi authorities to join the court would be a powerful signal of their commitment to justice for grave abuses – no matter the perpetrator. International involvement can also help in establishing a credible system that could independently and impartially investigate grave abuses. Beyond the atrocities that ISIS has committed, other actors who have also committed grave abuses in both countries will need to be held to account.
Overall, coalition partners fighting ISIS should place comprehensive and meaningful justice for victims at the center of their strategies. Ensuring fair and transparent proceedings will be essential to the stability of the region in the future.
Human Rights Watch urges coalition members to:
- Publicly commit to making justice a key pillar in their fight against ISIS;
- Support local and international efforts to investigate grave crimes, including through the collection, preservation, and analysis of potential evidence;
- Press Iraqi authorities to commit to relevant legislative reforms, including by incorporating war crimes, crimes against humanity and genocide into its domestic law;
- Provide support, including medical and psychological support, to victims of grave abuses.
5. Increase efforts to survey and clear landmines and explosive remnants of war (ERW)
Explosive ordnance used by ISIS forces and the ERW created during the conflict pose a significant danger to civilians and hinder recovery efforts in areas that were under ISIS control. UN Mine Action Service (UNMAS) officials have estimated that it could cost $50 million to remove mines, which are often referred to as victim-activated improvised explosive devices or booby traps, from in and around the Iraqi city of Mosul. In Syria, UNMAS estimates that more than 6.3 million people including 2 million children live in mine and ERW contaminated areas after nearly six years of war.
Improvised mines laid by ISIS have killed and injured hundreds of civilians returning to their homes, including children. For example, Human Rights Watch collected the names of 69 civilians, including 19 children, killed by improvised mines in schools, homes, and on roads during and after the fighting over control for the city of Manbij. Local hospital staff said that they had treated hundreds of people injured by improvised mines in that town alone.
Mine clearance efforts should be prioritized to ensure the safe return of civilians.
Human Rights Watch urges coalition members to:
- Support efforts to raise awareness and conduct mine risk education among those returning to territory formerly controlled by ISIS;
- Develop capacity to survey and rapidly clear mines and ERW from homes and residential areas to facilitate the return of the civilian population;
- Countries bordering Syria should facilitate access for humanitarian demining organizations and for assistance to survivors.
(New York) – The Chinese authorities’ failure to release details about terrorism convictions heightens concerns that the country’s counterterrorism law is being used to prosecute nonviolent activity, Human Rights Watch said today. The 2017 Supreme People’s Court (SPC) report, presented on March 12, 2017, departs from past practice by excluding details on 2016 terrorism cases, such as the number of individuals convicted. China’s new Counterterrorism Law took effect in January 2016.
Human Rights Watch said that China’s terrorism prosecutions, primarily in the northwestern region of Xinjiang, are subject to politically motivated abuse because of the expansive definition of terrorism, lack of transparency, and violations of fair trial rights.
“The Chinese government claims it’s combating terrorism threats, particularly in Xinjiang, but gives scarce details about these incidents while strictly controlling access of journalists and other independent monitors,” said Sophie Richardson, China director. “By refusing to provide information on terrorism cases, Beijing can easily suppress rights to peaceful criticism and religious identity.”
The 2016 SPC’s annual report to the National People’s Congress stated that in 2015, Chinese courts convicted 1,419 people for threatening state security, inciting “splittism,” and taking part in terrorism – nearly double the numbers of the previous year’s report. But the court’s 2015 and 2016 reports did not disclose a breakdown of these numbers, so it is unclear how many people were convicted for terrorism and precisely for which offense.
Human Rights Watch examined available data from China Court Net, a general news site run by the SPC, and the Peking University Law Database for information on terrorism-related cases in 2016. Only four court verdicts related to terrorism prosecutions from 2016 are publicly available. These two sources may only contain a small percentage of terrorism-related verdicts in 2016. The SPC decision that required court verdicts be posted online provides exemptions for cases that involve state secrets or personal privacy, and cases that are otherwise “not suitable for making public,” which gives the courts wide latitude to withhold information.
The four cases involved seven people – all but one ethnic Uyghurs from Xinjiang. Five received prison sentences from eight months to three years, while one was given a suspended sentence and one was exempted from criminal penalties.
In all four cases, the individuals were convicted of possessing, accessing, and distributing terrorism-related videos or audios. Three of the verdicts gave details about these materials:
- Yu was convicted for clicking on weblinks that contained images of flags of the East Turkestan Islamic Movement (ETIM) and of jihad, masked men with guns, and masked women, as well as essays “that encouraged people to join jihad.” Yu forwarded some of these materials to a relative.
- Duo was convicted for distributing to a WeChat public group of 62 people a short video of a beheading by two masked men.
- Abdusemet Halik (阿卜杜塞麦提•哈力克), one of a group of four convicted, possessed over 100 e-books, 100 audio clips, and 346 videos, most of them produced by ETIM and focusing on waging jihad in China, including on how to make bombs. Memet Rishit (麦麦提•热西提) possessed 11 news videos about Rebiya Kadeer, leader of exiled Uyghurs; 3 videos by ETIM promoting a holy war against “the blood-sucking atheist Communists” who “have occupied the East Turkestan and call it Xinjiang”; and 53 e-books on “religious extremism.” Yunus (玉奴斯) had 16 videos and audio recordings produced by ETIM on “religious extremism.” In addition to possessing and distributing these videos to their classmates, the three – plus the fourth defendant, Rizwangul Halik (热孜宛古丽•哈力克) – were also convicted of organizing others and participating in “physical training in imitation of the violent videos” in a park in Changchun City, Jilin Province, and of attempting to travel via Hong Kong to join Al-Qaeda, according to the verdict. During the trial, three of the four defendants told the court that they were tortured to confess.
In addition to these cases, Human Rights Watch learned about a dozen other individuals who were punished with days of detention and fines under administrative laws for watching, downloading, or storing audio, videos, and pictures related to extremism and terrorism during this period, but which were not severe enough to constitute criminal acts.
State media reports about the implementation of the new Counterterrorism Law, in effect since January 1, 2016, show a similar focus of the authorities to punish, through fines or days of administrative detention, possession or distribution of materials that the authorities consider as “terrorist” or “extremist” in nature, as well as distributing “fake terrorism information.” The Counterterrorism Law gives expansive definitions of “terrorism” and “extremism,” and does not clearly articulate what constitutes “fake terrorism information.”
Governments may prosecute speech that incites criminal acts – speech that directly encourages the commission of a crime, is intended to result in criminal action, or is likely to result in criminal action – whether or not criminal action does, in fact, result. But laws that impose criminal punishment for what has been called “indirect incitement” – for example, justifying or glorifying terrorism – encroach on expression protected under international human rights law.
The implementation of China’s Counterterrorism Law has also focused on punishing hotels and courier services for failure to comply with the government’s “real name registration” requirements, in which individuals staying in hotels or sending courier posts must use their identification cards.
None of the publicly available information about the people who received administrative or criminal punishments on terrorism-related charges in 2016 indicates they perpetrated or were linked to violent acts. The last two state reports about violence in Xinjiang, for example, suggested that those who committed violent acts were killed at the scene by security forces.
Xinjiang, home to 10 million Uyghurs and other ethnic minorities, is a site of pervasive discrimination, repression, and restriction on fundamental human rights including freedom of religion. Opposition to central and local policies has been expressed in peaceful protests, but also through bombings and other acts of violence.
A 2015 report by the Uyghur Human Rights Project documented more than 600 casualties in violent incidents in Xinjiang between 2013 and 2014, which included people killed by criminal offenders and state security forces.
The Chinese government has often blamed attacks on “foreign” forces including ETIM, an alleged separatist organization founded by Uyghurs which has been on the United Nations list of terrorist organizations since 2002, though the group’s existence has been debated. The government has not offered invitations to independent monitors to investigate such incidents, including the UN special rapporteur on torture and the special rapporteur on extrajudicial, summary or arbitrary executions.
“China’s terrorism convictions will generate disbelief as long as the criminal process remains opaque and so little information reaches the public,” Richardson said. “The government needs to open up the system to independent monitors from China and abroad, including the UN.”
Abuses of Individuals Suspected of Terrorism, Extremism
China’s laws on terrorism and extremism open the door to abusive treatment of suspects accused of such crimes.
Under the Counterterrorism Law, police are empowered to impose far-reaching restrictions on individuals they merely suspect of being involved in terrorism, even if they have little or no evidence (articles 39, 53). If police “receive a report of suspected terrorist activity, or discover suspected terrorist activity,” they can “order” the suspects to comply with “one or more of these restrictive measures” (article 53).
The restrictions include bans on traveling outside the suspect’s area of residence or the country without police approval, bans on taking public transportation or entering specified venues without police approval, as well as ID and passport confiscation.
The decision to impose these restrictions is an entirely internal procedure within the police system. Because there are no clear criteria in the Counterterrorism Law on imposing or withdrawing any of the restrictions, they can be imposed arbitrarily and, for some of the restrictions, indefinitely. Moreover, these restrictions apply prior to the stage of a police investigation, effectively giving police the power of preventive detention before a decision is made whether to file a case (ch: li’an). This means that the legal guarantee of the right to legal counsel, or any procedural rights stipulated in China’s Criminal Procedure Law, do not apply throughout this process.
Some of the suspects subjected to this preventive detention will proceed to pretrial proceedings under the Criminal Procedure Law, but pretrial proceedings in terrorism cases are opaque: the Criminal Procedure Law denies terrorism suspects basic defense protections, including access to family members and lawyers, and allows suspects to be held for months in undisclosed locations. The Counterterrorism Law states that terrorism suspects and prisoners “may be” subjected to solitary confinement (article 29); the Xinjiang Implementing Measures state those who are “major ringleaders” will always be subjected to solitary confinement because of their crime (article 40). The same applies to those who commit or incite others to commit crimes while in confinement, or refuse to be “re-educated” and show “violent tendencies.” The Implementing Measures do not outline any review mechanisms for imposing solitary confinement, or conditions for lifting it. This is contrary to the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), which prohibit the use of indefinite solitary confinement as it amounts to torture. China is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which it ratified in 1988.
Under the Counterterrorism Law, prior to release, prisons or detention centers are empowered to conduct an assessment of the “danger … posed to society” by these individuals when they complete their sentences (article 30). The assessment is sent to the intermediate people’s court of the region where the sentence was served.
If the court finds that the convict is a “danger to society,” it should “order” the person to receive an “educational placement” (ch: jiaoyu anzhi), a measure undertaken by provincial governments, even after a sentence is completed. Yet there are no clear criteria for such an assessment, or clear explanation whether this “educational placement” involves deprivation of liberty. The Counterterrorism Law also does not provide a time limit for this “educational placement” measure. The Implementing Measures state that it is the “education placement” institutions that can make a recommendation to the local court to remove such measures, but do not explain how the individual being subjected to the measure can apply to have it removed.
These provisions mean that even after someone has served a full sentence they can remain effectively indefinitely detained, with little or no recourse.
Vague, Overbroad Definitions of Terrorism in Chinese Law
Since 2014, the Chinese government has revised or drafted new legislation to combat terrorism. Taken together, these laws criminalize a wide range of activities. They restrict participating, abetting, organizing, or funding terrorism, as well as possessing, publishing, printing, or distributing content that contains terrorism, including digital content. They encourage “the masses” to report on terrorists and terrorism activities, and they set out penalties for those who withhold such information.
Xinjiang is the only region in China that has a set of Implementing Measures on the Counterterrorism Law (Xinjiang Implementing Measures), which have been in effect since August 1, 2016. Two recently revised regional regulations – one on religious affairs and one on prevention of juvenile crimes – also mention prohibitions against terrorism. The National People’s Congress is also drafting a new Xinjiang Uyghur Autonomous Region Anti-Religious Extremism Law, according to state media.
Human Rights Watch has repeatedly raised human rights concerns in China’s approach to terrorism and extremism. Chinese laws define terrorism in an overly broad and vague manner, and do not necessarily require actual action or violence to prompt prosecution, deprivation of liberty, or other restrictions:
- Article 3 of the Counterterrorism Law includes in the definition of “terrorism,” “advocacy” (ch: zhuzhang) or “behavior” (ch: xingwei) that “elicit panic in society, endanger public security, infringe upon personal and property rights, or threaten state agencies or international organizations through violence, destruction, intimidation, or other means to achieve its political aims.” The term “advocacy” could apply to proposed policy changes or criticism of government policy, or conduct that is within the boundaries of freedom of expression as set out under international human rights law. This article also notes that mere possession of “terror publicity materials” is considered a “behavior” that constitutes “terrorism,” yet there is no clear definition of “materials that promote terrorism.” This article also defines “terrorist incident” (ch: kongbu shijian) as an episode that is “in the process of occurring or which has already occurred and which has caused or may cause significant harm to society.” The open-ended nature of the last clause provides authorities with a legal basis to abuse their power on occasions they deem as constituting a “terrorist incident.” The Chinese government has, in the past, labeled the Dalai Lama’s prayers for self-immolations as “terrorism in disguise,” and Tibetans who self-immolate in protests against Chinese government rule as “terrorists.”
- Article 4 of the Counterterrorism Law defines “extremism” as “the ideological basis of terrorism,” and elaborates by saying that “the state opposes all forms of extremism, such as inciting hatred, discrimination, or agitating violence through distorting religious doctrines or other means.” This vague and overly broad definition provides the authorities with a legal basis to violate freedom of religion; allegations of “religious extremism” have been routinely employed to limit and often prosecute religious activities that merely take place outside state-controlled religious institutions.
Under these expansive definitions of terrorism and extremism, a large range of activity relevant to ethnic and religious expression and custom are punishable and are being prohibited, including:
- “Exploiting religious teaching, sermons, exegesis, study, weddings, funerals, gathering and cultural or recreational activities and so forth to advocate terrorism or extremism” (article 50(1), Xinjiang Implementing Measures);
- “Making, downloading, storing, reproducing, reviewing, or copying audio, video, images or print materials or network links with terrorist, extremist or other such contents” (article 50(2), Xinjiang Implementing Measures);
- “Illegally possessing printed or electronic products with terrorist, extremist or other such content” (article 50(3), Xinjiang Implementing Measures);
- “Designing, making, distributing, mailing, selling, or displaying clothing, symbols, flags, badges, utensils, souvenirs and so forth that have terrorist or extremist content (article 50(4), Xinjiang Implementing Measures);
- “Using clothing, symbols, and so forth to advocate terrorism or extremism in a public place or compelling others to wear or don terrorist or extremist clothing or symbols (article 50(5), Xinjiang Implementing Measures);
- “Organizing, forcing, instigating, encouraging or enticing a minor to participate in religious activities” (article 51(2), Xinjiang Implementing Measures);
- “Exploiting religion to obstruct or interfere with others’ activities such as weddings and funerals or inheritances” (article 51(3), Xinjiang Implementing Measures)
- “Distorting the concept of ‘halal,’ or generalizing the concept of ‘halal,’ expanding and mutating it into social life and other areas” (article 51(4), Xinjiang Implementing Measures);
- “Intimidating or inducing others to boycott national policy measures, or destroy state documents prescribed for by law, such as resident identity cards, household registration books, and marriage certificates, or currency” (article 51(5), Xinjiang Implementing Measures);
- “Deliberately sensationalizing, fabricating or distorting socially sensitive cases (incidents), or intentionally starting rumors or spreading false information, undermining the implementation of social management” (article 51(6), Xinjiang Implementing Measures);
- “Using extremism to incite or coerce the masses to undermine the implementation of legally established systems such as for marriage, justice, education or social management” (article 120(4), Chinese Criminal Law); and
- “Where methods such as violence or coercion are used to compel others to wear or adorn themselves with apparel or emblems promoting terrorism or extremism” (article 120(5), Chinese Criminal Law).
Egyptian internal security forces waging a campaign in the Sinai Peninsula against an affiliate of the Islamic State (also known as ISIS) may have extrajudicially executed at least four and perhaps as many as 10 men in January 2017. The security forces may have arbitrarily detained and forcibly disappeared the men and then staged a counterterrorism raid to cover up the killings.
A Human Rights Watch investigation relying on multiple sources of evidence including documents, interviews with relatives, and an edited video of the purported raid made public by the authorities, suggests that police arrested at least some of the men months before the alleged gunfight at a house in North Sinai and that the raid itself was staged.
(Beirut) – Egyptian internal security forces waging a campaign in the Sinai Peninsula against an affiliate of the Islamic State may have extrajudicially executed at least four and perhaps as many as 10 men in January 2017, Human Rights Watch said today. The security forces may have arbitrarily detained and forcibly disappeared the men and then staged a counterterrorism raid to cover up the killings.
A Human Rights Watch investigation relying on multiple sources of evidence including documents, interviews with relatives, and an edited video of the purported raid made public by the authorities suggests that police arrested at least some of the men months before the alleged gunfight at a house in North Sinai and that the raid itself was staged.
“These apparent extrajudicial killings reveal total impunity for Egypt’s security forces in the Sinai Peninsula under President Abdel Fattah al-Sisi’s counterterrorism policies,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “Prosecutors need to conduct a full and transparent investigation to get to the bottom of what appear to be grave abuses.”
The killings appear to fit a pattern of abuses against civilians by both military and internal security forces who are fighting the Islamic State (also known as ISIS) under the largest deployment of Egyptian troops in Sinai since Egypt’s 1973 war with Israel. Fighting in North Sinai has left hundreds dead since 2013, including civilians, security force members, and alleged ISIS fighters. The ISIS affiliate, which calls itself Sinai Province, has killed scores of civilians, targeting many either for alleged collaboration with the authorities or because they were Christians.
Journalists and human rights groups are rarely able to investigate frequent and credible reports of abuse because the government denies them access to North Sinai.
“In addition to a prompt and thorough investigation, the Egyptian government should open North Sinai to journalists, human rights investigators, and aid groups,” Stork said. “For years now, North Sinai has been a black hole.”
Doubts Cast on Government Account
Independent observers are rarely allowed to investigate the ongoing conflict in North Sinai, which the government treats as a closed military zone and where curfew hours and a state of emergency have been in place since October 2014. Egyptian journalists who have reported from North Sinai have faced prosecution, as have analysts who have written about the conflict. Ismail al-Iskandrani, a researcher who reported on Islamist movements and developments in the Sinai Peninsula, has been detained pending trial since November 29, 2015, on charges of spreading false news and aiding an illegal group.
Human Rights Watch reviewed the Interior Ministry’s video and other documents provided by the families, including burial forms and photographs of three of the men’s bodies taken at a morgue. Human Rights Watch also consulted with a forensic expert and several military experts regarding the photos and the video of the raid.
Two military experts consulted by Human Rights Watch said that certain elements of the video led them to doubt its authenticity, including a bright floodlight that illuminated the commandos as they approached the house and the commandos’ behavior during the raid, which did not indicate that they felt under threat.
Stefan Schmitt, the director of the international forensic program at Physicians for Human Rights, told Human Rights Watch that the video was too heavily edited to be taken as a credible depiction of the authorities’ story and that the positioning of the bodies and blood inside the house raised the suspicion that at least one of the bodies had been moved prior to the video taping. Sutures on at least two of the bodies photographed in the morgue indicated that autopsies were performed and that there should be autopsy reports, he said. Ayoub, the lawyer representing the families of Rashid and Abd al-Aty, told Human Rights Watch that the authorities have not provided the families with such reports.
Ayoub and the relatives of Rashid told Human Rights Watch that they had viewed the bodies of Rashid and Abd al-Aty in the morgue and that both appeared to have been shot once in the head. Both they and a relative of Gam’a also described reddened areas on the feet and hands of three of the bodies that they believed were signs of the use of electric shocks and cigarette burns, but Human Rights Watch could not independently confirm the cause of these marks or the existence of bullet wounds.
The relatives all said that they had learned of the men’s killings from the news and that the authorities had not contacted them. A local political activist who is coordinating the Arish “popular committee” said that the only response from the authorities had been to release about three dozen illegally detained people in North Sinai.
Human Rights Watch sent letters by email to the Interior Ministry and prosecutor general on March 6, inquiring about the families’ claims and whether the authorities had opened any investigation. Neither has responded.
Analysis of Statement and Video of Interior Ministry
The roughly one-and-a-half-minute video posted on YouTube by the Interior Ministry on the day of the alleged raid repeated a statement released the same day on the ministry’s Facebook page. The statement identified a man named Ahmed Mahmoud Yousef Abd al-Qader as an alleged commander with the local ISIS affiliate whom the ministry blamed for organizing “terrorist groups” and instructing them to carry out a string of attacks, including a coordinated assault on two police checkpoints in al-Arish just four days earlier that left eight police officers and one civilian dead.
After “intensive follow-up field operations,” the ministry statement said, its forces were able to identify some of the alleged ISIS fighters involved in the January checkpoint attacks. The ministry claimed that the attackers had been moving frequently between various hiding places, but relatives of Ayoub, Gam’a, and Rashid told Human Rights Watch that police had arrested the three men at their homes. Far from living as fugitives, they said, Rashid had married two months before his arrest and Gam’a lived with his wife and frequently visited a doctor with her to seek treatment for infertility.
The ministry said that counterterrorism forces tracked the men to an abandoned “chalet” near al-Arish’s Fourth Police Department. On January 13, the counterterrorism forces began their raid on the building, but fighters inside “fired a hail of bullets toward them, trying to escape,” the statement said. The commandos “dealt with the sources of fire,” killing all 10 men inside the building. The statement did not mention any casualties among the counterterrorism forces.
On that day, Rashid’s relative said, dozens of men wearing uniforms with “police” written on them and other men in civilian clothes raided their home in the Samran neighborhood of al-Arish and arrested Rashid without showing a warrant. The authorities had not previously wanted Rashid for any crime, and the relative said they did not know why police came for him.
“It was October 17 around noon,” she said. “Suddenly the door slammed, and I felt terrified when I saw the [security] forces and couldn’t talk.”
Rashid’s relative said that the security forces split up and entered an apartment on the ground floor and Rashid’s on the second floor. They took Rashid into an armored vehicle for a moment and then returned with him.
“I asked [an officer] what was going on but he didn’t answer,” his relative said. “I had to go out but I was hearing voices. They hit him while his grandmother was standing there. She yelled at them: ‘Shame, shame!’”
Rashid’s relative said that neighbors later told her that there had been at least 15 armored vehicles and police vans outside her home during the raid. The security forces searched the two apartments and destroyed most of the family’s property, including the bed, refrigerator, television, toilet, stove, and glass cupboards. Police also took three mobile phones and about 2,000 Egyptian pounds (US$119), the relative said. The family sent Human Rights Watch photos of the damage.
Rashid’s wife, who was one-month pregnant at the time, yelled at the police that these were new furnishings and that she was recently married. An officer told her, “Come, see your things while they’re being destroyed,” she said. Another officer grabbed her and pushed her against the wall twice. She said that she later suffered a miscarriage, but Human Rights Watch was not able to obtain any medical documentation.
Two days later, security forces returned to their street and arrested more residents. When Rashid’s wife approached the officers to ask them about Rashid, one of them told her, “He will never see the street again. Find another husband.”
On January 13, the day of the alleged raid, Rashid’s family had no internet connection, but friends called and told them that they had seen Rashid name in the statement.
“I didn’t believe it,” Rashid’s relative said. “I thought maybe it was a false statement or something.”
Rashid’s relative said that he had been close friends with one of the other six men named in the Interior Ministry’s statement and killed in the alleged raid, Abd al-Aty Ali Abd al-Aty al-Deeb, who was arrested about nine days before Rashid.
“Here [in North Sinai] you can’t breathe,” the relative said, describing the way security forces treat civilians. “You can’t ask [officers] to present an arrest warrant.”
He said that he had inquired about Gam’a in some police stations but that they had denied that Gam’a was there. The family did not receive any information about Gam’a until the Interior Ministry statement on January 13.
The relative said that anyone involved in the violent acts alleged by the Interior Ministry would not have stayed at their home like Gam’a, who had wanted to have children and sought regular treatment for his infertility.
“We did not send any faxes [to the authorities] … We thought he would go back home soon because he is a straight, clean guy,” the relative said. “We didn’t know it would reach this level.”
Abd al-Aty Ali Abd el-Aty al-Deeb
The Interior Ministry accused Abd al-Aty, 25, of involvement in the killing of Mohamed Mostafa Ayad, an engineer who had performed work for the armed forces and was kidnapped by unknown armed men in September 2016 and publicly shot to death five days later in a main square of al-Arish, according to media reports and activists on Facebook.
Ayoub, the lawyer who is representing Abd al-Aty’s and Rashid’s families, said that security forces arrested Abd al-Aty on October 8 and that the families had retained him about two weeks later.
Ayoub was at the Ismailia morgue when some of the men’s bodies were delivered to their families, and he said that both Abd al-Aty and Rashid appeared to have been shot once in their heads. He also said he saw burns on Abd al-Aty’s body and bruising on the wrists that he believed were signs of handcuffs. Human Rights Watch viewed photos of the two bodies but could not independently confirm the existence of bullet wounds to the men’s heads. Schmitt, the forensic expert, said he could not confirm the cause of the marks, but that Abd al-Aty’s body appeared to have had a full autopsy.
Ayoub said that the authorities did not allow him to obtain a copy of the autopsy report and that he does not know what it stated. A one-page certificate from the Ismailia branch of the Health Ministry’s Forensic Medical Authority, viewed by Human Rights Watch, stated that Abd al-Aty’s cause of death was “gunshots,” without further details.
Ayoub filed a complaint to prosecutors, also viewed by Human Rights Watch, on behalf of both Abd al-Aty’s and Rashid’s families a few days after their deaths, which accused Interior Ministry National Security officers in al-Arish of forcibly disappearing and killing the two men. Prosecutors have not responded, he said.
There is a perception that a fear of terrorism should translate into a fear of Muslims. It has been fueled in part by President Donald Trump’s campaign promise to ban all Muslims from entering the country and his executive order banning certain travel from several Muslim-majority countries. This erroneous notion has contributed to an increasingly hostile atmosphere of Islamophobia in the U.S.
FBI and other data show that reported hate crimes against Muslims spiked last year to the highest levels since the September 11th attacks. Anti-Muslim hate groups are reportedly also on the rise, with the Southern Poverty Law Center estimating that the number of such groups tripled in 2016. As many officials, including President Trump, engage in dangerous rhetoric conflating Islam and the 1.6 billion Muslims worldwide with violent extremism, it’s important to take a sober look at the facts and data on this issue, which paint a very different picture.
While it is true that some terrorism attacks across the globe are carried out by Muslims associated with violent extremism, religion itself is not actually a good predictor of terrorist violence. Many factors are associated with terrorism, not just the person’s religion.
The Institute for Economics and Peace (IEP), a research center that analyzes and produces metrics concerning global peace and security issues, releases an annual report detailing various drivers and correlates of terrorism. Its latest report estimates that since 1989, 93 percent of all terrorist attacks have occurred in countries that experienced high levels of political instability and state-sponsored violence, such as extrajudicial killings, torture and imprisonment without trial.
The research also found that 90 percent of terrorist incidents occurred in countries with ongoing internal or international conflicts and that lower respect for human rights and the existence of policies targeting religious freedoms correlated with higher levels of terrorism. In developed nations, IEP also found that socio-economic factors such as “youth unemployment, lack of confidence in the press, low faith in democracy, drug crime and negative attitudes towards immigration” had strong correlations with terrorist incidents.
Opinion polling has shown that Muslims around the world widely reject violence and extremism, with most respondents overwhelmingly denouncing tactics such as suicide bombings. In fact, people in many countries with large Muslim populations were found to be just as concerned as Western nations about the threat of violent extremism. Likewise, surveys have shown that many people in countries with large Muslim populations have very unfavorable opinions of terrorist groups such as ISIS and Al Qaeda – as one example, Lebanon has only a 1-percent favorable opinion of ISIS. Also, despite the inaccurate claims that Muslims have not spoken out against terrorism, numerous Muslim scholars, clerics, and community leaders have repeatedly denounced terrorism and violent groups like ISIS and Al Qaeda.
While terrorist attacks in the U.S. carried out by Muslims associated with violent extremism is certainly an issue worthy of attention, it is important to remember that 96 people have been killed in a handful of such attacks since the September 11 attacks. Meanwhile, more than 300,000 people have been killed from gun-related deaths by other Americans during the same period. An American is more likely to die being struck by lightning or choking on food than being killed in a terrorist attack.
It’s also worth pointing out that violent acts and plots orchestrated by far-right individuals and groups, such as neo-Nazis and white supremacists, are just as much, if not more, of a problem in the U.S. In fact, before the 2016 Orlando shooting, far-right terrorism actually accounted for more deaths than those carried out by people associated with extremist views of Islam since September 11. Such incidents, however, have received far less attention and are almost always viewed as the isolated actions of disturbed individuals.
The reality is that terrorism simply does not pose as much of a threat as many people fear. While there will inevitably be acts of terrorism, the current atmosphere of Islamophobia in the U.S. is based far more on fear than on facts, and only fuels religious discrimination and alienation of Muslim communities. Scapegoating Muslims does nothing to keep people safer and instead feeds into the common recruitment narrative of ISIS that America is at war with Islam. To address real U.S. security issues, we need to deal in facts, not fear-mongering.
(Erbil) – The Iraqi interior ministry is holding at least 1,269 detainees, including boys as young as 13, without charge in horrendous conditions and with limited access to medical care at three makeshift prisons, Human Rights Watch said today. At least four prisoners have died, in cases that appear to be linked to lack of proper medical care and poor conditions and two prisoners’ legs have been amputated, apparently because of lack of treatment for treatable wounds.
Two detention centers are in the town of Qayyarah, 60 kilometers south of Mosul, and the third at a local police station in Hammam al-Alil, 30 kilometers south of Mosul. At least one detainee has been held in Qayyarah for six months, with many others detained since November 2016. According to the Qayyarah prison staff, at least 80 of their detainees are children under 18, with the youngest being 13. Children are in Hammam al-Alil as well.
“The deplorable prison conditions in Qayyarah and Hammam al-Alil show that the Iraqi government is not providing the most basic detention standards or due process,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “Iraqis should understand better than most the dangerous consequences of abusing detainees in cruel prison conditions.”
On March 3, 2017, Human Rights Watch visited two of three houses in Qayyarah the Iraqi government has been using since retaking the area in August to detain men and boys suspected of being affiliated with the Islamic State (also known as ISIS). On March 12, researchers visited the local police station at Hammam al-Alil, which is holding 225 people accused of varying crimes, including ISIS-affiliation, in four rooms. Human Rights Watch was unable to interview detainees, but spoke to prison staff.
The prisons are under the authority of the Interior Ministry’s intelligence service, which provides services there together with the Justice Ministry. Staff said that Iraqi security and military services combatting ISIS hand over people they detain to the intelligence service, which holds the detainees in the facilities while individually interrogating them.
The intelligence service then takes the detainees before an investigative judge to assess whether there is enough evidence to bring charges for supporting ISIS under Provision 4 of the Federal Iraqi Counterterrorism Law (no. 13/2005). The judge then either orders their release or transfers the detainees to Baghdad to face charges.
Prison staff in Qayyarah said they had released about 80 detainees and transferred another 775 to Baghdad by early March 2017. Iraq’s Criminal Procedural Code (no. 23/1971) requires detaining authorities to bring detainees before an investigative judge within 24 hours. But Qayyarah prison staff said they had held some detainees for as long as four months, while Human Rights Watch learned of the case of the man held without charge for six months.
Prison staff in Qayyarah said that the investigative judge had cleared at least 300 men for release who are now being held unlawfully after the National Security Service, a security body under the prime minister with a mandate to screen people fleeing ISIS-controlled areas, intervened. Security forces’ failure to comply with a judicial order for release is a crime under Iraqi law. If the security forces are failing to comply with judicial orders in a systematic manner as part of a state policy to ignore such orders and detain people arbitrarily, this could represent a crime against humanity.
Prison staff in Hammam al-Alil said they had released 115 detainees and transferred another 135 to Baghdad. They said they have been holding at least 60 men since the detention site opened in November, 2016.
The prison staff and Justice Minister, Haidar al-Zamili, who met with Human Rights Watch on February 2, 2017, said that detainees held on terrorism charges have no right under the counterterrorism law (no. 13/2005) to communicate with their family during the investigation period, and that the Qayyarah detainees have not been allowed to communicate with their families. A local judge overseeing the cases told Human Rights Watch that once a detainee has been brought before the investigative judge, they have the right to contact their families, but that family visits are being delayed because of the delays in bringing detainees before the judge.
They also said that despite the Iraqi constitution and Criminal Procedure Code (no.23/1971) guaranteeing detainees the right to a lawyer during interrogations and hearings, none had been provided with a lawyer present during their interrogations and many did not have a lawyer during their hearings before the investigative judge.
Human Rights Watch observed that the facilities are all extremely overcrowded, so that no detainee can lie down to sleep. Because of the overcrowding and lack of proper ventilation, the makeshift prison cells are overheated, with an incredible stench. Detainees at the Hammam al-Alil prison called out to the visiting Human Rights Watch researchers, begging them to crack open the door because they said they could not breathe. The detainees have either no time or minimal time outside their cells, eat inside their cells, and have no access to showers and limited access to bathrooms. The facilities have no medical support, contributing to the deaths and amputations, prison staff said.
While the staff said they were trying to improve conditions, they could not reduce the overcrowding. The overcrowding may have been exacerbated due to a temporary freeze, in early 2015, on transfers of prisoners to Baghdad due to the cost of such transfers, a Qayyarah court official told Human Rights Watch on March 11, 2017. He said that the transfers had resumed in mid-January. Prison staff in Hammam al-Alil said that on March 11, they were asked to accept another 11 prisoners but refused, saying there was simply no more room.
One interrogator in Hammam al-Alil said that he sometimes beats ISIS suspects, and an observer who visited the prison in February 2017 said he witnessed the ill-treatment of three detainees.
Detainees charged and convicted may still be entitled to release under the General Amnesty Law passed in August 2016 (no.27/2016), staff said. The law offered amnesty to anyone who joined ISIS or another extremist group against their will, and did not commit any serious offense, like torture or killing. The head of the Iraqi parliament’s legal committee, Mohsen al-Karkari, told Human Rights Watch during a meeting on February 7, 2017, that it was a roundabout way to limit the scope of the wide-reaching Iraqi counterterrorism law and release of thousands of terror suspects. According to the Justice Ministry, authorities have released 756 prisoners since the law was passed.
Human Rights Watch learned from a reliable source that the Iraqi government had sent a committee to review conditions in the facility a few weeks before the Human Rights Watch visit. The committee promised to send up to 20 more interrogators from Baghdad, to speed up investigations. On March 2, 2017, 10 interrogators had arrived at the Qayyarah prisons.
The evidence documented by Human Rights Watch strongly suggests that conditions at the Qayyarah and Hammam al-Alil facilities are hazardous, unfit to hold detainees for extended periods of time, and do not meet basic international standards. As a result, holding detainees there probably amounts to ill-treatment. The state of the facilities and severe understaffing pose severe risks to the prisoners, the prison administration, and the local community.
The authorities should transfer all detainees from these facilities to official prisons built to accommodate detainees, and equipped to meet basic international standards. Until that happens, the Interior and Justice Ministries should, as an urgent priority, improve the conditions, and speed up the investigative process so that it can transfer the prisoners out of the facility as quickly as possible. The ministries should provide all detainees a medical screening upon arrival, and ensure access to medical care.
The authorities should also ensure that there is a clear legal basis for detentions, that all detainees have access to legal counsel, including during interrogation, and that detainees are moved to facilities accessible to government inspection, independent monitors, relatives, and lawyers, with regular and unimpeded access. They should immediately notify families of the detention of their loved ones and under which authority, promptly take detainees before a judge to rule on the legality of their detention, and immediately comply with any judicial order for release.
Judges should order the release of detainees or prisoners being held in inhuman or degrading conditions.
When prosecuting children alleged to have committed illegal acts, they should be treated in accordance with international juvenile justice standards. International law allows for authorities to detain children pretrial in limited situations, but only if formally charged with committing a crime, not merely as suspects. The authorities should release all children not yet formally charged.
“The Iraqi authorities should immediately release the children it is holding in these hellholes unless they promptly charge them with a crime,” Whitson said. “Iraq should recognize and treat children accused of ISIS affiliation as the victims of illegal and unconscionable recruitment and exploitation by the group.”
International Law on Detention
International law governing the treatment of prisoners strictly prohibits cruel, inhuman, or degrading treatment or punishment. The international norms regarding prison conditions are set out in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the “Mandela Rules”). The rules require that “[a]ll accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”
They also state that, “[t]he sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner,” and that “[a]dequate bathing and shower installations shall be provided.” “The provision of health care for prisoners is a state responsibility. Prisoners should enjoy the same standards of health care that are available in the community,” the rules state. Rule 58 protects a prisoner’s right to receive visits “at regular intervals” from family and friends.
Under Iraqi law, the High Judicial Council is responsible for monitoring prison conditions, while the ministries in charge of facilities are responsible for maintaining the conditions inside. The High Judicial Council should fulfil its mandate in monitoring these facilities. Iraq should ratify the Optional Protocol to the Convention against Torture allowing independent international experts to conduct regular visits to places of detention in Iraq and provide for the creation of an independent inspectorate.
Special Provisions Regarding Child Detainees
In particular, children should enjoy full due process guarantees, including access to counsel, the right to challenge their confinement, contact with their families, and separation from adult detainees. Any punishment for criminal offenses should be appropriate to their age, and be aimed at their rehabilitation and reintegration into society.
It is important to note that some of the child detainees may have committed acts of violence while simultaneously being victims of ISIS. The Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict said in 2011 that when dealing with children who took part in armed groups “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”
The government should also consider how to treat children accused of membership in a group like ISIS, but not of any specific violent act. In 2016, the UN secretary-general criticized countries for responding to violent extremism by administratively detaining and prosecuting children for their alleged association with such groups. He noted that such deprivation of liberty is contrary to the best interests of the child and can exacerbate community grievances.
The special representative of the secretary-general for children and armed conflict, Leila Zerrougui, has also stated that child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities.” Many countries worry that children who are ISIS members pose a future threat. But prosecution and detention of a child should always be a measure of last resort, and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.
In one Qayyarah detention facility, a room approximately 4 by 6 meters held 114 men, and in the other a room 3 by 4 meters held 38. They have no furniture or mattresses, with insufficient space for detainees to lie down to sleep. One prison houses 374 detainees within six rooms. The other facilities are smaller. The room with 114 detainees has a single toilet and blocked off windows. It had no ventilation system until early March 2017, when the prison director broke two small holes in the walls and installed ventilation fans. Despite these improvements, the smell is overwhelming. The detainees in the other five rooms share another single toilet.
The second prison houses 270 detainees in a building that was hit by a projectile while the area was under ISIS control, with a hole in the hallway roof. Staff said the building is unstable and could collapse at any moment. The room Human Rights Watch saw has windows boarded up with only a small hole, from which detainees have thrown dozens of water bottles filled with their urine. The heat and smell are staggering. Staff members are building another room connected to the building to hold some of the detainees.
The prisons that hold 374 and 400 detainees respectively each only has one guard at any given time. The prison holding 270 has two because the single toilet is a pit in the yard, which opens into a main road, so a guard accompanies prisoners to the toilet. Staff said they took the prisoners out into the yard for 10 to 20 minutes a day, but allowed them only to sit, not walk around.
None of the three prisons have showers. The prisoners eat in the rooms.
Prison staff said they recently decided to hold child detainees separately. But Human Rights Watch was not allowed to visit a third building where staff said the child detainees were held.
Prison staff said that while conditions in the third building are slightly better, with less overcrowding, they do not allow the children to leave their cell. They have no opportunities for activities, exercise, diversion, education, or contact with their families. The only exception is for a small number who provide uncompensated labor for the prison staff by distributing food and water, including to the adult prisoners.
Staff said that until January 2017, the food served to detainees was inedible, and that the head of the prison finally refused to serve it, telling officials at the Justice and Interior Ministries that he would start buying food from his personal funds for the detainees. This finally triggered the ministries to send more support for better food. Now the detainees get three varied meals a day, prison staff said.
Staff told Human Rights Watch that despite repeated requests to the Baghdad authorities, the government had not provided any medical support to the prisons for months. The first two visits by doctors from the local branch of the health department were in early March 2017. Sources said that the doctors then suspended their visits, but did not know why. They said that two detainees had entered with what they believed to be treatable wounds, but they were not given access to timely medical care and eventually each had needed to have a leg amputated.
The family of one prisoner, Ali Muhammad Atiya, 41, a former grocer, told Human Rights Watch that when Iraqi forces retook Qayyarah in August 2016, Counterterrorism Service officers came to their home and detained Atiya for several hours. Four days later, intelligence officers returned and detained him, telling his son that the father had been affiliated with ISIS. The family said staff did not allow them to visit him, but that an intelligence officer told them that although an investigative judge ordered his release, he remained detained. In early February, a neighbor told them he had been at a hospital in Qayyarah, and had seen Atiya arrive there for treatment. Atiya’s mother went to the hospital, where medical staff told her he had severe diarrhea from dehydration. She spent five days with him and said he was very sick and weak and finally died. When Human Rights Watch interviewed the family, they had yet to receive the results of the forensic examination.
Staff told Human Rights Watch there were ongoing efforts to install air coolers and ventilation systems. During the week of March 12, 2017, they cleaned all the rooms for the first time to address an outbreak of scabies, allowed all the prisoners to shower in makeshift facilities set up on that day, and set up sanitation facilities for each building.
Hammam al-Alil Prison
Human Rights Watch visited two of the four prison rooms in the police station, one 6 by 4 meters, holding 72 men, and the other 7 by 4 meters, holding 103. They have no furniture or mattresses, with insufficient space for detainees to lie down to sleep. The prison houses 225 detainees, including three women in a separate cell, with about 50 of the 255 on ISIS-affiliation charges.
The male detainees share six toilets in unsanitary conditions, with sinks blocked with dirty water, and no showers. The windows in the two rooms visited have been blocked off, with a small hole for a ventilator fan in each. The smell is overwhelming. Prison staff said that the ministries are not providing water for the bathroom, and that the director is trading fuel and other items in exchange for water from local authorities.
Prison staff said that the ministries did not provide any food for the detainees for the first several weeks after the facility opened, and that the staff had to ask the families of detainees to bring food that was then shared among all the detainees.
Staff said they did not know how many detainees were under 18, but said there were a considerable number, in cells with the adults. They said the youngest was 13. The child detainees have no opportunities for activities, exercise, diversion, education, or contact with their families.
Staff said that despite repeated requests to the Justice Ministry, Baghdad had not provided any medical support. They said one detainee with diabetes came to the prison in November 2016 after being held and not properly fed for 11 days in Qayyarah prison. They took him to the local clinic, but he died within days. Another prisoner arrived in November with gangrene in both his legs. In December, staff took him to a local hospital to have both legs amputated, after which he returned to the unsanitary conditions of the prison cell. He died three months later, in late February 2017. Another overweight detainee died in early 2017 after complaining for many days that he was unable to breath because of the stench and heat.
Staff said they allow one elderly prisoner to spend the nights in a separate, guard room, because the heat and stench of the cell is causing him serious breathing problems. When Human Rights Watch visited the cells, prisoners yelled out that they could barely breathe and begged staff to crack open the doors.
Prison staff said the total staff is 10 people including the guards and interrogators, and that no one cleans the bathrooms or cells. They said they allow the prisoners from two of the rooms to pass between the rooms and the connected bathroom several hours of the day, but are unable to allow the prisoners outside because the building has no gates, walls or fences.
Dressed in fitted slacks, a satin bomber jacket with a fake fur collar, and a black scarf that loosely framed her face, Nadia, 22, spoke in a dull monotone of her journey from life under the Islamic State (also known as ISIS) to life in a Kurdish prison. She said she had not seen her three-year-old daughter since she fled her abusive husband, a fugitive ISIS member, in March.
A Sunni Arab from the Salahuddin Governorate in central Iraq, Nadia—whose name has been changed to protect her identity—was married off to a local farmer in 2012. Although their marriage was arranged, they got along at first, she told me from the visiting room of an Erbil prison. But everything changed for the worse when ISIS took over their village for two months in 2014.
What happened next underscores the serious challenges the Kurdistan Regional Government (KRG) faces as it seeks to identify security threats among the hundreds of thousands of Iraqis streaming across its borders from ISIS-held territory and to prosecute those who were part of the extremist group. During this difficult process, there is a risk that the KRG may be arbitrarily branding many women and even children who lived under ISIS as guilty by association—including those who had not welcomed the extremist group or were abused during its harsh rule.
Many residents fled Nadia’s village when ISIS took over. But Nadia said that her husband insisted they remain to care for their cattle. After Iraqi forces routed ISIS a few months later, village elders returned and banished them and others who had not run away, accusing them of being ISIS sympathizers.
The couple moved with their infant daughter to Mosul, and there her husband, unable to find other work, did join ISIS as a checkpoint guard. Although he initially joined to support his family, said Nadia, he became increasingly “brainwashed” and quickly turned “aggressive,” beating her routinely. “He didn’t beat me until he joined ISIS,” said Nadia. “They changed him, they spoiled his mindset.” When she said she would leave him, he threatened to either kill her or take away their daughter.
But when ISIS began pressuring Nadia’s husband to become a frontline fighter, he refused—and was beaten and jailed by the group for two months. The day after his release in November 2015, he fled to neighboring Turkey. After ISIS discovered his escape, one of its enforcers tried to make Nadia reveal his whereabouts. When she refused, she said, the enforcer hit her on the head with his rifle and threatened to kill her. Her in-laws feared for her life and persuaded her to let them smuggle her and her daughter into Turkey to join her husband.
She and her daughter reached Turkey after a weeks-long journey involving two sets of smugglers, crossing first into Syria on the back of a truck in a cage hidden beneath bags of sand and soil. “The guards would poke the soil with a stick to see if there was anything beneath it,” Nadia said. Terrified her daughter would cry, she said she reluctantly doped her with cold medicine. But she survived that trip only to be battered anew by her husband. “He beat me again and again and again,” Nadia told me. When he discovered she was plotting to return to Iraq with their daughter, “he threw me out of the apartment and closed the door in my face,” refusing to let her take their daughter with her.
Alone and terrified, she said she crossed the southern Turkish border into what she thought was a sanctuary: Iraqi Kurdistan, whose troops are a key force in the international coalition fighting ISIS. But during a search of the bus she was traveling in, Asayish, the security arm of the KRG, arrested her after finding what they considered to be incriminating photos on her phone. One showed her wearing a black cap with the ISIS logo.
“It was a joke, a terrible joke,” Nadia said of the photo, insisting she was not an ISIS member or sympathizer. The photo showed her fully made up with her hair down. “It was an insult to ISIS, as women should cover their faces and not wear makeup,” she told me. “If [members of ISIS] had seen this photo, they would have slaughtered me.” Another photo showed Nadia’s husband sporting a flowing beard and posing with an assault rifle. Nadia said she immediately told the Asayish agents that the photo was of her husband, that he had been an ISIS member, and that she was fleeing him. “Why would I keep that photo of my husband if I wanted to protect him?” she said she asked the agents. They did not believe her.
Now in her 12th month of detention at the Women and Children’s Reformatory in Erbil, Nadia is charged with participation in a terrorist group, which carries a sentence of up to 15 years. For the first 17 days of imprisonment, she said, security agents held her in isolation in a dank cell in an unsuccessful attempt to make her confess allegiance to ISIS. Solitary confinement for more than 15 days can constitute inhumane treatment and in some cases torture under United Nations standards. Her cell had no heat. The toilet was broken, and the two tiny windows were located near the ceiling. “They wanted to pressure me [into confessing],” Nadia said. “I wanted to kill myself. I was crying and begging, ‘Please, get me out of here.’” For four months, Nadia said, she could not make phone calls or take family visits. When we spoke in December, the KRG had still not provided her with a lawyer, and she said she had seen a judge only once.
AT THE REFORMATORY
Nadia was one of ten women detained on terrorism-related offenses whom I interviewed at the Women and Children’s Reformatory. Two of the women had been convicted for trying to commit suicide bombings—one of them in 2008—and readily admitted this was the case. But the other eight women claimed that their only crime was being related by marriage or blood to a member of ISIS or its precursor, al Qaeda in Iraq.
Many of the eight women said they had not been provided with a lawyer, as required under Iraqi law. They had spent anywhere from one to nine months in prison without charge or trial. International law requires that detainees be charged “promptly,” a period that should not exceed a few days or, at most, a few weeks. Six of the women’s children, ranging in age from ten months to eight years, were living inside the prison with them.
Dindar Zebari, the KRG liaison for nongovernmental organizations, denied any abuse of detainees and said that the KRG does its utmost to uphold the rights of the accused. Legal proceedings for terrorism-related cases tend to be more complex and take longer than those for common crimes, he said. Zebari insisted that the photos on Nadia’s phone were, in fact, “an indication of [her] support for ISIS.” He said a court would provide her and all others accused with lawyers if they could not hire one.
In a positive step for justice, on February 22, an Erbil court dismissed a case against Bassema Darwish, a Yazidi mother of three who had been enslaved and raped by an ISIS emir. The KRG had accused Darwish of complicity in the killings of three KRG peshmerga by ISIS fighters in October 2014. Darwish told the court an Asayish interrogator had beaten her and threatened her with rape if she did not confess to a role in the killings. Still, justice had been slow in coming: Darwish waited 28 months in prison to go to trial. And her case is not yet over: she remains in custody during a 30-day window for the KRG to decide whether to file an appeal and will most likely remain locked up pending the outcome of her case should it do so.
The women and children I met at the Erbil reformatory had frequent access to a large courtyard. But much of the time the mothers and children were crowded into a poorly ventilated cell with the other female prisoners. Prison staff said the cell, housing 24 people, was built for half that number.
One of the prisoners, Yasmine, had been a 16-year-old widow when KRG forces caught her trying to enter Erbil wearing a suicide vest in 2008. Yasmine, who also did not want to disclose her real name, told me that al Qaeda in Iraq had recruited her by barraging her with messages and calls saying that U.S. forces had killed her husband and that she needed to avenge his death. Twenty months have passed since Yasmine completed her seven-year prison term, but she remains in jail. The KRG authorities, she and a family member said, had accused her of developing links to ISIS during her years in detention and would not let her leave prison, even though a judge had ordered her released for lack of evidence.
Among the women awaiting charge or trial, one said she was detained because her son had joined al Qaeda in Iraq a decade earlier, although she had cut off all contact with him since then because he had joined the extremist group. Another woman said that she was related to a prominent ISIS member but had never even spoken with the relative and had seen him only once in her life, at a family gathering in 2002. A third woman said that she and her husband, a former Iraqi police officer, were detained as ISIS suspects because their home was the only one in their village that ISIS had not destroyed; she said that was because ISIS had taken over the house and kicked them out.
Two women said that ISIS had killed one or more of their family members. Three women, including Nadia, said they had left their husbands because the men joined ISIS and that their spouses had threatened and beaten them or taken their children away in retaliation.
Nadia is scheduled to go to trial on April 18. But she is charged under the KRG counterterrorism law of 2006, which lapsed last July, potentially leaving her in a legal limbo, along with many of the 1,500 other Iraqis the KRG says it is holding as ISIS suspects.
As the KRG authorities try to get to the bottom of cases like Nadia’s, it’s critical that they base their findings on credible evidence and resist assuming guilt by association. The challenge of keeping the region safe from groups such as ISIS is immense, but it does not absolve authorities of the responsibility to afford suspects the due process rights to which they are entitled under domestic and international law.
As a start, the KRG should prioritize impartial investigations into the merits of the accusations against these women and ensure they are afforded full, fair-trial guarantees, including adequate counsel. They should enforce a zero-tolerance policy toward forced confessions or other detainee abuse. Other members of the international coalition fighting ISIS should press the KRG to do so as well; otherwise they risk dirtying their own hands. Settling for anything less risks revictimizing women who have already suffered under ISIS and fuels the ISIS narrative that the KRG and its allies are foes, not friends, of Iraqi Arabs.
(Washington, DC) – The hearing by the US House Judiciary Committee on March 1, 2017, about one of the broadest and most intrusive surveillance laws in the United States highlights the need for reforms to prevent executive branch abuses, Human Rights Watch said today.
Section 702 of the Foreign Intelligence Surveillance Act (FISA), the subject of the hearing, is the basis for at least two massive warrantless surveillance activities carried out by the National Security Agency (NSA). Through one, the PRISM program, the NSA gathers and stores potentially enormous amounts of private communications from US internet companies. The other, “upstream” scanning, appears to involve automatic government searches of virtually all of the communications that flow over crucial pieces of infrastructure that connect the US to the rest of the world. Human Rights Watch has previously highlighted the especially detrimental impact “upstream” searches may have on the US immigrant and border communities.
“As committee members on both sides of the aisle pointed out, the government has used Section 702 for surveillance programs that are outsized, unlawful, and ripe for abuse,” said Sarah St.Vincent, US national security and surveillance researcher at Human Rights Watch. “As the sunset deadline for Section 702 approaches, Congress should address the ways it can result in human rights violations.”
Section 702 is scheduled to expire on December 31, 2017, unless Congress renews it, setting up what is likely to be a heated battle over reforms. Several committee members, both Democrats and Republicans, expressed strong concerns about Section 702 and its consequences for civil liberties during the hearing. Committee member Jim Jordan suggested a need to view the government’s claims about the constitutionality of Section 702 activities with skepticism, while a range of other members raised legal concerns about major aspects of Section 702 surveillance.
Section 702 surveillance targets the communications of millions of foreigners, but the government also contends that it is entitled to sweep up Americans’ communications “incidentally.” The Office of the Director of National Intelligence has failed to respond to a bipartisan April 2016 letter from Judiciary Committee members asking for statistics about how common this “incidental” collection is and how many Americans have been affected.
Moreover, while the Foreign Intelligence Surveillance Court annually approves general procedures that are intended to provide certain limited protections to US citizens and lawful permanent residents, the government does not need to seek warrants for targets and the court does not review the government’s targeting decisions. Once the government has the data, the FBI can then conduct warrantless “backdoor” searches of it for law enforcement purposes, circumventing constitutional requirements that have long been foundational to protecting privacy and other rights under US law.
The December 31 expiration date for Section 702 creates an important opportunity for Congress to enact urgently needed fixes to the law, Human Rights Watch said.
Human Rights Watch is concerned not only about the disproportionate and unconstitutional nature of Section 702 surveillance, but also about the possibility that the government is using questionable legal interpretations to avoid notifying criminal defendants that Section 702 produced information for the investigations in their cases – which undermines fair-trial rights by preventing those defendants from challenging the lawfulness of the monitoring. Law enforcement agencies may even be concealing the fact that they have used Section 702 data by employing a technique known as “parallel construction” – the deliberate creation of an alternative explanation for how they found the evidence in question. This practice, which materials released by the government confirm, threatens the overall integrity of the US’ justice system.
“Congress should not consider re-authorizing Section 702 without thoroughgoing reforms to restore and protect human rights,” St.Vincent said. “House Judiciary Committee members were right to emphasize the risks, and they should follow up with changes to Section 702 that will uphold the integrity of the US justice system.”
What is Section 702?
Section 702 of the FISA Amendments Act of 2008 (50 U.S.C. § 1881a) grew out of a secret George W. Bush-era warrantless surveillance program that monitored the international communications of people in the US. It currently underpins some of the most sweeping warrantless NSA surveillance programs that affect Americans and people across the globe.
Warrantless Surveillance, Designed to Monitor Americans and Others
While Section 702 states that the NSA’s surveillance under the law must “target” foreigners abroad, in reality the law allows the agency to capture potentially vast numbers of Americans’ communications with people overseas (as well as Americans’ domestic Internet communications that just happen to be routed through another country en route to the recipient).
This surveillance is warrantless, and no judge ever reviews or approves the government’s individual targeting decisions. The law does not require the government to show it has any suspicion that anyone who may be caught up in this dragnet has engaged in wrongdoing.
PRISM and Upstream
The executive branch uses Section 702 to seize private communications through two extremely large programs. The PRISM program enables the NSA (via the FBI) to gather and store enormous amounts of users’ communications that are held by Internet companies. Meanwhile, Upstream surveillance appears to involve automatic government searches of virtually all of the communications that flow over crucial pieces of Internet infrastructure that connect the US to the rest of the world.
Backdoor Searches: An End Run Around the Fourth Amendment
The FBI currently has the power to search (or “query”) Section 702 data without a warrant. The Bureau describes these warrantless backdoor searches as “routine and encouraged.” Such queries effectively evade other provisions of US law that require an individualized warrant or court order for access to such data.
It’s Not Just About Terrorism
Section 702 surveillance and FBI backdoor searches of the data are not limited to terrorism-related matters—far from it. In fact, Section 702 allows the government to seize the data as long as “a significant purpose” of the surveillance is to acquire “foreign intelligence information,” an expansively defined term. The FBI then has the power to search this data for a broad set of purposes, including to determine whether the data may be evidence of any offense.
A Lack of Checks and Balances
There are few checks on the executive branch’s power in this area. For example, although FISA requires the government to notify criminal defendants if it intends to use any Section 702-derived evidence in proceedings against them, it has provided such notification in only a handful of cases to date. This raises concerns that the government may be preventing other defendants from learning that they were warrantlessly surveilled—thus helping to shield Section 702 from constitutional challenges.
The Section 702 Sunset
Section 702 is scheduled to expire on December 31, 2017. Congress must thoroughly reform the law if any re-authorized version is to comply with the Constitution and human rights.
What Congress Should Do
To make progress toward restoring the rights of Americans and others, any bill to reform Section 702 should include, among other things:
- An end to indiscriminate “upstream” scanning.
- A prohibition on warrantless backdoor searches of Section 702 data.
- A narrowing of the purposes for which the government may conduct Section 702 surveillance, such that the law only allows monitoring where strictly necessary to prevent serious, specified, clearly defined offenses.
- A stronger requirement for the government to provide notice to criminal defendants where it has employed Section 702 surveillance as part of the investigation that led to proceedings against them.
- Other provisions that would facilitate legal challenges to potential abuses under the law, including by removing barriers that have prevented activists and others from showing that they are entitled to bring cases.
- Firmer restrictions on the sharing of Section 702 data among federal agencies and with state, local, and tribal bodies to ensure proper oversight and prevent abuses.
- The prevention of the government’s use of Section 702 to monitor communications that are protected by legal privilege, such as those between attorneys and their clients, journalists and their sources, and doctors and their patients.
- Requirements for greater transparency about the government’s activities under Section 702, and the removal of restrictions on companies’ sharing of information with the public about orders they have received.
- Another sunset deadline to provide momentum for a further round of reforms.
Statement of 82 Civil, Human Rights, and Faith Based Groups
Serious Concerns Regarding Harm to American Muslim Civil Society from Terrorism Designation
Media reports suggest that the Trump administration is considering designating the Muslim Brotherhood as a terrorist organization. The undersigned coalition of organizations is deeply concerned that such a designation could lead to the stigmatization and targeting of American Muslim civil society, including non-profits, charities, religious organizations, and activists.
For several years, fringe anti-Muslim voices have called for the designation of the Brotherhood as a terrorist group, and framed American Muslim civil society and leaders as suspect or criminal through guilt by spurious association. We note that numerous scholars and national security and foreign policy experts from across the political spectrum have voiced concern regarding the validity of such a designation. We are particularly concerned about the effects of such a designation on American Muslim civil society, including non-citizens, refugees, and asylum seekers. Even without a formal designation, some have used false “six degrees of separation” accusations about the Muslim Brotherhood as a way to smear prominent Muslims, American Muslim civic and religious institutions, as well as a range of other people. Accusations from government officials can have the power to destroy reputations and chill lawful activity, including freedom of worship, association, expression, and charitable giving.
A designation would intensify this smear tactic. Indeed, many baseless accusations have already come from White House officials, as well as members of Congress. For example, Steve Bannon, the President’s Chief Strategist, has stated that his former news organization, Breitbart, has linked Tim Kaine, the 2016 Democratic nominee for vice president, to the Muslim Brotherhood. Witnesses called before Congress have, without evidence, claimed that the two American Muslim members of the House of Representatives, Keith Ellison and Andre Carson, supported terrorism because they attended Islamic Society of North America (ISNA) events.
Designating the Muslim Brotherhood as a terrorist organization could lead to a witch-hunt against Muslim civil society in the U.S. It could also open the door to the threat of legal action by the government against Muslims and civil society organizations by invoking overbroad and unfair laws and executive orders regarding designated entities. For example, individuals could be criminally prosecuted for providing support, services, resources, expert advice or assistance to the Muslim Brotherhood without any intent to support terrorist activity. A designation could also result in unconstitutional asset seizures and effective shut-downs of civil society and rights groups. Despite court rulings requiring probable cause and due process when the Treasury Department seizes Americans’ assets, the Department has not changed its internal regulations. The Department takes the view that it can block or freeze the assets of any individual or organization that is providing ‘financial, material, or technological support for, or financial services to,’ or is broadly ‘otherwise associated’ with a designated terrorist organization. There is no requirement of actual intent or knowledge of wrongdoing. The Treasury Department’s decision can rely on classified information the targeted person or organization cannot see or meaningfully refute, and a blocking order can be issued pending investigation into whether the target is somehow associated with a designated group.
As a result, the potential negative impact on American Muslim civil society of false and unjust smears and investigation resulting from a terrorism designation of the Muslim Brotherhood is high. It runs the serious risk of stifling religious and political freedom and the ability to assist and represent Muslim communities without fear of retaliation.
American Muslim organizations are part of the rich fabric of our democracy. They provide social services to their own communities and work with other faith-based organizations to provide support to others, such as those affected by natural disasters and mass shootings. They run mosques that give Muslims space to exercise their faith and promote inter-faith understanding and dialogue. Muslim civil rights groups work to protect communities against discriminatory laws and policies, a role that is critical at a time when the threat of anti-Muslim measures is extraordinarily high and hate crimes against those perceived as Muslim have soared.
We stand in support of American Muslims and more recent Muslim immigrants in all their rich diversity and against the discrimination, fear, and stigma that we are deeply concerned a terrorism designation is likely to increase.
Act Now Worcester
American-Arab Anti-Discrimination Committee
American Civil Liberties Union
American Friends Service Committee
Amnesty International USA
Arlington Street Church - Social Action Committee (Boston)
Asian American Psychological Association
Asian Americans Advancing Justice | AAJC
Asian Americans Advancing Justice | Asian Law Caucus
Asian Americans Advancing Justice | Los Angeles
Beloved Community Interfaith Network
Bill of Rights Defense Committee/Defending Dissent Foundation
Brennan Center for Justice
Center for Constitutional Rights
Center for New Community
Charity & Security Network
Coalition to Preserve Human Dignity
CODEPINK for Peace
Codepink Women for Peace, Golden Gate Chapter
Council on American-Islamic Relations (CAIR)
Council on American-Islamic Relations - Arizona
First Church Cambridge Mission and Social Justice Committee
First Church Unitarian, Littleton, MA
Greater Cleveland Immigrant Support Network
Harvard Islamic Society
Human Rights Watch
Intercommunity Justice and Peace Center
Interfaith Action for Human Rights
Iowa Unitarian Universalist Witness/Advocacy Network
Islamic Society of Boston Cultural Center
Islamic Society of North America (ISNA)
Jewish Voice for Peace
Maryland United for Peace and Justice
Montgomery County (MD) Civil Rights Coalition
Montgomery County Muslims
Muslim Public Affairs Council
Muslim Alliance for Sexual and Gender Diversity
Muslim Anti-Racism Collaborative (MuslimARC)
Muslim Justice League
National Coalition for Asian Pacific American Community Development
National Coalition to Protect Civil Freedoms
National Council of Asian Pacific Americans (NCAPA)
National Lawyers Guild - Massachusetts Chapter
National Network for Arab American Communities
National Religious Campaign Against Torture
New England Translators Association
New Evangelical Partnership for the Common Good
Nicaragua Center for Community Action
Old Cambridge Baptist Church
People For the American Way
Prince George's County Peace and Justice Coalition
Project SALAM (Support And Legal Advocacy for Muslims)
South Asian Americans Leading Together (SAALT)
Southeast Asia Resource Action Center (SEARAC)
Southern Poverty Law Center
St. Francis of Assisi Pax Christi
St. John the Evangelist Catholic Church, Columbia, MD
T'ruah: The Rabbinic Call for Human Rights
Texas Unitarian Universalist Justice Ministry
The Aafia Foundation
The Constitution Project
Therapists for Peace & Justice
Unitarian Universalist Association
Unitarian Universalist Mass Action Network
Unitarian Universalist of York
Unitarian Universalist Pennsylvania Legislative Advocacy Network (UUPLAN)
Unitarian Universalist Service Committee
United For Peace and Justice
United Voices for America
Veterans for Peace
Women's International League for Peace & Freedom
Women's International League for Peace and Freedom - Houston
Women's Voices Women Vote Action Fund
Yaqeen Institute for Islamic Research, Southern Methodist University
Yemen Peace Project
Over the last five years, the Obama administration struggled to develop and carry out a program to prevent violent extremism through community engagement and developing counter-narratives to extremist messages. The Countering Violent Extremism (CVE) program, which began in August 2011, provides resources to communities to build and sustain local prevention efforts in the hope that this would address the root causes of violent extremism.
Yet even critics of Trump’s CVE proposals such as Stevan Weine may underestimate the downside of CVE – and only appreciating those downsides allows one to fully understand the likely effect of Trump’s maneuver. While the objective behind CVE is laudable, in practice, many of the efforts have been problematic and their impact limited or even negative in some cases. One of the key issues has been the tension felt by many communities that CVE initiatives were not there to support them but rather to spy on them. Instead of improving this program, Donald Trump apparently wants to take its worst aspects and magnify them. He wants to change the CVE program – in theory designed to counter all violent ideologies – into a program that focuses solely on Islamist extremism. He would reportedly rebrand the program and call it “Countering Islamic Extremism” or “Countering Radical Islamic Extremism.”
This would be a terrible idea on so many levels. It will undermine any possibility of real engagement with Muslim communities as it would further conflate violent extremism with Islam and deepen the fears of Muslim communities in the US – many of which are still reeling from Trump’s new order restricting immigration from seven Muslim-majority countries. Many observers of CVE programs that have taken place in recent years have noted that such programs had fueled suspicion of Muslim Americans. A December 2015 document by the ACLU, Article 19, and the Brennan Center notes that “CVE initiatives in the United States and Europe focus overwhelmingly on Muslim communities, with the discriminatory impact of stigmatizing them as inherently suspicious and in need of special monitoring.” In Boston, Minneapolis, and Los Angeles – where some of the pilot CVE programs took place – a range of grassroots Muslim groups have expressed serious reservations about these initiatives. Trump’s proposed shift would only accentuate this stigma and erode trust between law enforcement and concerned communities.
Trump’s proposed changes would exacerbate another problematic aspect of CVE programs, namely the lack of clarity in terms of what such programs are meant to counter and how they achieve their objectives. Existing CVE programs have struggled to define what constitutes “violent extremism,” and several studies have shown that there is no predictable process by which individuals become violent extremists. Accordingly, categories that are often adopted as indicators of potential risk are so broad as to be almost meaningless or, alternatively, affect large numbers of people – usually from certain ethnic or religious communities. Trump would move the programs into even more elusive ground by focusing them on ill-defined and vague concepts such as Islamic Extremism or even Radical Islamic Extremism. How would these programs determine what are extreme interpretations of Islam and is it the role of US government programs to promote certain interpretations of religion?
Equally troubling, Trump’s proposal would send a message that his administration seems indifferent to the risk posed by other forms of violent extremism despite law enforcement data indicating that they are responsible for a high number of deadly armed attacks in the US, and that such a risk has been on the rise. If Trump believes in the role of CVE programs in countering violence, then it is difficult to understand why he would only focus on Islamist movements and ignore the danger posed by other violent groups. In June 2015, violent ideology played a key role in the motives of the avowed white supremacist who went on a shooting rampage at an African-American church in Charleston, South Carolina. In a 2015 survey of 382 US law enforcement agencies by the Triangle Center on Terrorism and Homeland Security, 74 percent reported anti-government extremism as one of the top three terrorist threats in their jurisdiction; while only 39 percent listed extremism connected with Al-Qaeda or like-minded organizations.
A 2012 study by Dr. Arie Perliger, a professor at the US Military Academy’s Combating Terrorism Center, found that since 2007, there has been a dramatic rise in the number of attacks and violent plots originating from individuals and groups who self-identify with the far-right of US politics. He documented an average of 337 attacks a year in the decade after 9/11, causing a total of 254 fatalities. Dr. Perliger found that the volume of violence was correlated with the “the sense of empowerment that emerges when the political system is perceived to be increasingly permissive to far right ideas.”
Other databases using different definitions of political violence, such as a database on Profiles of Perpetrators of Terrorism in the United States maintained by the Start Center at the University of Maryland and the database of the International Security Program at the New America Foundation also report high number of fatalities from homegrown extremists with no ties to extremist views of Islam – often higher than the ones such studies categorize as being in significant part inspired by extremist views of Islam. And yet, a decision by Trump to change the CVE program would mean that grants that currently go to groups that rehabilitate former neo-Nazis and other domestic extremists will likely be cut.
President Trump could have asked for an evaluation of existing CVE programs before deciding how to proceed. But the news reports suggest that has decided to double down on efforts to portray violent extremism as merely a problem with Muslims. That is a short-sighted, dangerous decision that will affect Muslims, undermine law enforcement objectives by discouraging cooperation with affected communities, and minimize the danger that other forms of violent extremism pose.