UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Saudi Arabia

Arabic

Preliminary findings of the visit to Saudi Arabia

Riyadh (4 May 2017), the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Ben Emmerson, visited Saudi Arabia from 30 April to 4 May 2017. He thanks the Government of Saudi Arabia for having extended an invitation to visit the country. The purpose of the visit was to assess progress Saudi Arabia achieved in its law, policies and practice in the fight against terrorism, measured against international human rights law.

The Special Rapporteur commends the transparency and the courteous, constructive and co-operative way in which the Government initiated and facilitated this official visit and his previous working level visit in November 2016, which allowed a frank and open dialogue.

The Special Rapporteur is particularly thankful to the heads of all governmental institutions that he met. The Special Rapporteur and his team had the valuable opportunity to hold exchanges of views about Government’s efforts in combating terrorism, in particular, with the Minister of Justice, the President of the Bureau of Investigation and Public Prosecution, the General Director of the General Directorate of Investigation of the Ministry of Interior, the President of the Specialized Criminal Court, the Chairman of the National Society of Human Rights and the President of the Human Rights Commission.

He and his team also had discussions with Chief of Police Station in Al Manar, and Directors and personnel of Al Hair and Dhahban prisons, as well as at the Mohammed Bin Naif Counselling and Care Centre. The Special Rapporteur’s team conducted interviews with individuals accused and convicted of terrorist crimes and met with representatives of families of victims of terrorist violence.

Over the past three decades Saudi Arabia has suffered extremely high numbers of terrorist attacks by Al Qaida and latterly by ISIS and other groups against military, civic and civilian targets. According to official records, there have been altogether 1075 terrorist plots identified in the country since 1987. The Special Rapporteur was informed that 844 of these were effective, many with devastating consequences and that 231 plots were disrupted. A total of 3178 individuals were killed or injured as victims of terrorism over this period. The Special Rapporteur is also mindful of many other security related challenges and threats resulting from regional instability that the Government has to face on the daily basis.

The Government was keen to emphasise the efforts made on law enforcement in the prevention of terrorism and safeguarding human life. In particular, Government sources stressed Saudi Arabia’s commitment to international co-operation and mutual legal assistance, and the introduction of strict money laundering regulation to stem the flow of terrorist financing. The extent to which such legislation is effectively implemented needs to be ascertained.

The Special Rapporteur commends the efforts by the Government and its institutions to alleviate suffering of victims of terrorism through comprehensive programs involving financial, psychological, educational, career opportunities and moral support. Financial, housing and psycho-social support for the victims of terrorism and their families is an essential part of an integrated counter-terrorism strategy, as recommended by the Special Rapporteur in his Framework Principles for Protecting and Promoting the Rights of victims of Terrorism.

The Special Rapporteur also commends efforts of the Government to counter the spread violent extremism and its associated ideologies not only with security measures but also with concerted action in the social, political and economic areas. He was particularly impressed by the conditions of detention in the five dedicated prisons for housing terrorist suspects and those convicted of terrorism. He visited Al Hair and Dhahban prisons, examined the facilities and spoke with both staff and inmates at both institutions. The standard of care, and the conditions of detention in these facilities, including medical and recreational facilities, are amongst the highest in the world. Generous provision is made for family and conjugal visits, and prisoners are encouraged to remain close to their families, being allowed to attend important family functions and even to marry in prison. Saudi Arabia can rightly be proud of the genuinely rehabilitative nature of the facilities in which it houses prisoners accused of terrorism.

Particularly impressive were the unique, professional, evidence-based and imaginative rehabilitation and re-integration programmes designed in the Mohammed Bin Naif Counselling and Care Centre. This facility houses terrorist prisoners who are nearing the end of their sentences and provides them with a range of alternative life skills, from psychotherapy to religious instruction, which are designed to entrench a counter-narrative to radicalisation and prepare them for release. The centre claims an 86% non-recidivism rate and its methodology deserves the attention of other States considering the adoption of counter-radicalisation programmes for convicted offenders.

Despite many positive developments, the Special Rapporteur would like to share some observations, concerns and recommendations with regard to the unacceptably broad definition of terrorism, and the use of the 2014 counter-terrorism law and other national security provisions against human rights defenders, writers, bloggers, journalists and other peaceful critics. He would also like to raise the continuing problems relating to the prevention of torture of terrorist suspects during investigation; the reported use of confessions obtained by duress during interrogation, the use of the death penalty following proceedings in which there are reported due process shortcomings; and the need for greater transparency about civilian casualties in Saudi Arabia’s extra-territorial counter-terrorism operation in Yemen and allegation of support from sources within Saudi Arabia for  armed opposition groups in Syria.

The Special Rapporteur considers that the definition of terrorism in the 2014 Law on Counter Terrorism and its Financing fails to comply with international human rights standards of legal certainty. Any definition of terrorism should be confined to acts or threats of violence that are committed for religious, political or ideological motives, and that are aimed at putting the public or section of the public in fear or to coerce a government or international organization to take or refrain from taking any action. Contrary to the basic international human rights standards, article 1 of 2014 Law enables the criminalization of a wide spectrum of acts of peaceful expression, which are viewed by the authorities as endangering “national unity” or undermining “the reputation or position of the State”.

The Special Rapporteur has received numerous reports about prosecution, on the basis of this law, of human rights defenders, writers, bloggers and journalists in connexion with their expression of non-violent views. Despite repeated requests and efforts from the Special Rapporteur, the Government was unable to give access to any of the individuals whose names he provided to be interviewed.

The Special Rapporteur strongly condemns use of counter terrorism legislation with penal sanctions against individuals peacefully exercising their rights to freedom of expression, as well as freedom of religion or belief and freedom of peaceful association and assembly. These rights enjoy international legal protection, provided they are exercised in a manner that does not incite terrorism or other forms of violence. The message of international law is clear and simple: Non-violent criticism of the State or any of its institutions, including the judiciary, cannot be made a criminal offence in any society governed by rule of law.

The Special Rapporteur calls upon Saudi Arabia urgently to review the definition of terrorism in the 2014 Law and bring it into line with international human rights norms, and to refrain from using anti-terrorism and other forms of national security legislation to stifle peaceful political dissidence, criticism or non-violent protest.

The Special Rapporteur also calls on the Government to establish an Independent National Security and Due Process Review Mechanism to re-examine all cases in which individuals are currently serving sentences of imprisonment based on acts which constitute the exercise of free speech, freedom of thought, conscience, religion or opinion, or the right to freedom of peaceful assembly and association and to commute or pardon all such prisoners with immediate effect.

This independent mechanism should not be confined to examining cases under 2014 anti-terrorism Law, since many of the reported instances of speech and opinion crimes have been prosecuted under other national security provisions. The mechanism should therefore review all crimes allegedly committed by speech or writing in order to determine whether they violate the protected rights of expression, thought, conscience, religion or belief, assembly or association. The composition of the independent mechanism should include not only a member of the senior judiciary, but also independent legal academics and representatives of civil society. The Special Rapporteur’s mandate is on hand to provide technical advice and assistance if required, including with regard to reviewing relevant legislation.

The Special Rapporteur has handed to the Government a list of priority cases for urgent review. In each of these cases, it appears that the individuals are currently serving sentences imposed for non-violent speech or writing.

Among those on the list are nine individuals, whose cases were reviewed by the United Nations Working Group on Arbitrary Detention in 2015. In each case, the Working Group found their deprivation of liberty was arbitrary because it was based on exercise of free speech and peaceful association (Opinion No. 38/2015). The Special Rapporteur is profoundly concerned that this decision remains unimplemented and calls on the Government immediately to release the individuals named in the decision.  

Turning to the question of torture, the Special Rapporteur was informed by the Government that there are now legal safeguards in place against torture such as the right to legal counsel and to contact a person of their choice. These rights are in principle afforded to all detainees under the 2013 Code of Criminal Procedure. In addition, prison and police monitoring mechanisms have been established within the Human Rights Commission and National Society of Human Rights. The Prosecutor’s Office is charged with investigating allegations of torture. However, the Special Rapporteur is concerned about the persistence of reports of the use of torture and ill-treatment by law-enforcement officials to extract confessions, as well as the alleged failure to launch effective investigations based on the complaints received from defendants and their lawyers during or before the court hearings. In a report published in June of last year, the United Nations Committee Against Torture expressed its deep concern at the numerous reports brought to its attention that torture and other ill-treatment are commonly practiced in prisons and detention centres in Saudi Arabia, in particular in branches of the Criminal Investigation Department of the Ministry of the Interior and in Al-Mabahith detention centres. The Government has categorically denied that torture is ever committed on any detainee, and assured the Special Rapporteur that all detainees are afforded all their legal rights all of the time.

In light of this background, and the continuing reports of the use of torture, the Special Rapporteur expresses serious concern over the fact that allegations of torture or other forms of ill-treatment made by terrorism suspects, lawyers and human rights defenders do not appear to systematically result in rapid and thorough independent investigations. The Special Rapporteur recommends the introduction of reforms to guarantee the presence of lawyers immediately as of the first hour of detention and not after permission of the Bureau of Investigation and Public Prosecution. The Special Rapporteur has received testimonies of individuals who have never seen a defence lawyer during the entire duration of their investigation, or very late in the process, even if these persons have not reported duress during their investigation.

The lack of effective guarantees against ill-treatment during investigation offers the potential for torture and other forms of abuse of power. In addition, the Special Rapporteur would like to echo the recommendations made by the UN Committee against Torture in its 2016 concluding observations¹ encouraging the Government to introduce specific compulsory training programmes for law enforcement officials, investigators, prosecutors, judges and medical personnel on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (also known as the Istanbul Protocol). The Government informed the Special Rapporteur that work is currently underway to implement the recommendations of the Committee. With this in mind, the Special Rapporteur recommends to the Government to issue an invitation for a country visit by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dr. Nils Melzer.

Furthermore, the Special Rapporteur received reports about certain due process violations in the Specialized Criminal Court involving lack of habeas corpus guarantees and trials proceedings in secret or in the absence of lawyers or in the absence of the accused. Allegations made to the Special Rapporteur include arbitrary arrests, violation of the right to be informed of the charge, violation of the right to legal counsel, the absence of independent medical examinations, the practice of incommunicado or secret detention and the admission of evidence obtained by torture in breach of Saudi Arabia’s obligations under Article 15 of the UN Torture Convention.

It should be pointed out that the President of the Specialized Criminal Court refuted these allegations during his meeting with the Special Rapporteur, assuring him that all the rights guaranteed to an accused person are rigorously delivered in each case and that no cases are tried in secret or in absentia. Accordingly, without prejudging the merits of these allegations, the Special Rapporteur wishes to highlight the relevance of such concerns to terrorist cases involving the imposition of the death penalty. In 2016, at least 50 people were sentenced to death for terrorist offences and 47 of these were executed by public beheading or firing squad. When non-terrorist offences are included, there were 154 executions in 2016. As a matter of international law, the imposition of the death penalty presupposes the most stringent standards of due process. However, the Special Rapporteur has considered in detail one such prosecution in which there appeared to have been multiple due process violations.

The Independent National Security and Due Process Review Mechanism, which the Special Rapporteur has called upon the Government to establish, should urgently review all current cases in which prisoners accused and sentenced for terrorism are facing the death penalty in order to ensure the international minimum standards are met in each case. This means that the sentence of death may be imposed only for the most serious crimes that result in loss of life. Only full respect for stringent due process guarantees distinguishes capital punishment as permitted under international law from a summary or arbitrary execution.

The last topic covered in this statement relates to Saudi Arabia’s extra-territorial counter-terrorism operations in Yemen and Syria which are governed both by human rights law and by the law of armed conflict. Figures held by the United Nations in July 2015 suggested that 60% of the civilian casualties in Yemen had been caused by the Saudi Arabia led coalition forces. Reliable data on civilian casualty levels for the period since then is scarce. Reports from the Yemen Data Project have suggested that between March 2015 and August 2016 one third of all coalition strikes hit civilian targets, including 58 hospitals.

The Government informed the Special Rapporteur that it classifies the Shia Houthi rebels in Yemen as State-sponsored terrorists and its operations are therefore, at least in part, counter-terrorism operations. In October 2016 a strike on a funeral in the Yemeni capital of Sanaa reportedly killed 140 people and wounded 525. The Special Rapporteur was informed by the Government that each such incident is independently investigated and the results, where appropriate, made public. The Special Rapporteur would like to take this opportunity to remind Saudi Arabia of its international legal obligation to ensure that a fact-finding investigation, independent of the chain of command involved in the strike, is conducted by the Coalition in any case in which there are reliable indications that civilians may have been killed or injured and to make the results public. He calls upon the Government to ensure that such investigations are conducted in every case and the true civilian death toll made public.

With regard to the internationalized armed conflict in Syria, the Special Rapporteur notes the significant contribution of Saudi Arabia in efforts to combat ISIS. However, he is concerned at allegations that some of the most violent armed groups involved in “jihad”, and which have been committing  serious human rights violations in that country, appear to have enjoyed various forms of support, financial and logistical, implicating sources inside Saudi Arabia, despite the Government’s expressed commitment to stem all terrorist financing. These allegations will need to be investigated by the newly formed International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 established pursuant to resolution 71/248 of the UN General Assembly, which is responsible for investigating crimes committed by all sides of the conflict.

Finally, the Special Rapporteur would like to thank the United Nations team in Saudi Arabia for providing valuable support throughout his visit

These are the preliminary findings of the Special Rapporteur’s mission. A full report will be presented to the United Nations Human Rights Council in March 2018.

Note:

1. Paragraph 49 of the CAT’s Concluding observations on the second periodic report of Saudi Arabia (CAT/C/SAU/CO/2), adopted on 10 May 2016