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Practical Suggestions to Implement the BICI Recommendations:
Making Sense of Bassiouni’s ReportThe Bahrain Independent Commission of Inquiry (BICI) was appointed by the King of Bahrain King Hamad bin Easa Al Khalifa by the Royal Decree No. 28 for 2011, on 29 July 2011. This is in order to investigate the events that took place in Bahrain in February and March 2011 and their consequences. The BICI announced the details of its report on 23 November 2011, and contained 20 recommendations including: the establishment of national independent commission to follow the implementation of the recommendations, compensate the families of those killed, put into place an independent mechanism to hold to account Government officials accused of violating the law, training security and the police forces on how to deal with detainees. This Newsletter of the BHRM includes articles analyzing the report of the BICI. However, this article provides practical suggestions on how to implement the recommendations contained in the BICI report. Short-term recommendations which should be implemented immediately in less than three months. Middle-term recommendations which should be implemented within a period of three to six months Long-term recommendations which needs more than six months for implementation because they need strategies, operational plans and budget. This categorization helps in putting the recommendations in a logical and practical time framework in order to avoid unrealistic expectations and to dissipate rumours which leads to disappointment and despair. A time frame for implementing the recommendations should be put into place. Despite this categorization we decided to keep the chronology of the recommendations without following the numbering of the report. In order to avoid confusions, the categorization of each recommendation will be pointed out. The recommendations will be written in red and our comments will be in black. We advise the readers to read all the recommendations as stated in the report. Summary of the BICI recommendations and our suggestions:1- To establish an independent and impartial national commission consisting of personalities of high standing representing both the GoB, opposition, political parties and civil society to follow up and implement the recommendations of this Commission. The newly established national commission should examine the laws and procedures that were applied in the aftermath of the events of February/March 2011 with a view to making recommendations to the legislature for appropriate amendments to existing law and the development of new legislation, in particular with respect to legislative reform as contained in this recommendation.
This recommendation belongs to category 1 (immediate implementation) regarding the establishment of the independent national commission and belongs to category 2 (implementation within 3-6months) regarding the required legislative reforms. This recommendation already came into force when on 27 November 2011, King Hamad bin Easa Al Khalifa ordered the establishment of an Independent Commission in order to study the recommendations of the BICI. This Commission is appointed to put forward proposals including recommending necessary amendments to laws and procedures and how to implement them before February 2012. This Commission should be transparent and publish its report and work according to international standards. The Royal Decree granted the Commission the freedom to comment on Government implementation of the recommendations of the BICI report. Also it outlined the mechanism of taking decisions connected to its work and that the Government should provide necessary resources in order for the Commission to perform its work in the best possible way. Based on the Royal Decree, the Commission consists of 20 members and chaired by the President of Shura Council Ali Saleh Al Saleh. Five opposition political parties including Al- Wefaq , Waad, National Assembly, Gathering of National Unity and National Brotherhood boycotted the Commission. This indicated the difficulties that lie ahead in implementing the recommendations and put more pressure on the Commission to become open to all parties in order to be able to achieve its goals. Moreover, the Commission should also present its report before February 2012, and due to the large boycotting, it was suggested that the Commission should concentrate on solving immediate issues and on identifying the laws and legislations in need of immediate revision. With regards to the technical aspects such as revising, amending and annulling or introducing new laws, we suggest the setting up of an independent committee or sub- committee consisting of Bahraini law experts and can be called the ‘Law Review Committee’. This committee should present its proposals regarding the amendments of the laws and legislations to the Legislative Council. In its first meeting, the National Commission charged with the implementation of the recommendations of the BICI Report said that the recommendations regarding the dismissed workers, the students and places of worship will be a top priority. The members of the Commission agreed to refer to the BICI to solve any disagreements and to adopt any proposal by consensus. Also during this meeting three sub-committees were established to deal with legislative issues, human rights and national reconciliation. 2- To establish a national independent and impartial mechanism to determine the accountability of those in government who have committed unlawful or negligent acts resulting in the deaths, torture and mistreatment of civilians with a view to bringing legal and disciplinary action against such individuals, including those in the chain of command, military and civilian, who are found to be responsible under international standards of “superior responsibility”. This recommendation belongs to category 3, (long-term implementation). This recommendation is based on the principle that no one is above the law and emphasises the principle of ‘accountability’ and fighting impunity. It may be appropriate to set up a committee for ‘truth, accountability and reconciliation’ to be formed of independent members known for their integrity and be guided by the transitional justice concepts for truth seeking, reparation and holding officials to account. This committee should also be given the freedom to choose the suitable framework which would help to mend Bahrain’s social fabric. The concept of transitional justice leads to reparation and realizing justice to victims in an institutionalised manner. This proposed committee could also benefit from the success of some Arab and international experiences in this field. The experience shows that transitional justice helps to promote national reconciliation. To establish such an important committee, a Royal Decree is needed to outline its mandate and objectives. On 21 November 2011, the Council of Ministers stated in a statement that the Government conducted its own investigations of the events and discovered ‘many unfortunate issues such as specific cases in which excessive force was used and mistreatment of detainees, in a clear violation of Government policies. As result of this investigations, 20 security men were referred to Court.’ The statement also added that ‘ the Government cannot keep quiet regarding the mistreatment and the insults committed by officials, for no one is immune and all violators will be held responsible for their actions’. It is worth remembering that the Government set up a fund to compensate those harmed during the events. Also, the King of Bahrain announced - the day the report was released - that there is no immunity for anyone committing violations even if they happen to be officials (see page 4-5 of this Newsletter). The Ministry of Interior issued a statement on 8 December 2011, in which it stated that in implementation of the recommendations of the BICI it had referred all allegations of death, torture and inhuman and ill-treatment to the Public Prosecutor in compliance with the two recommendations No. 1716 and 1722 regarding holding those responsible of cases of torture, ill-treatment and murder accountable . 3/ To place the office of the Inspector General in MoI as a separate entity independent of the Ministry’s hierarchical control, whose tasks should include those of an internal “ombudsman’s office”, such as that which exists in many other countries. The new Inspector’s General’s office should be able to receive individual or organisational complaints, protect the safety and privacy of the complainants, carry out independent investigations and have the authority to conduct disciplinary and criminal proceedings as required by CAT, the ICCPR and the Bahrain Criminal Code to the Prosecutor General. The office should also promulgate and enforce police professional standards and carry out legal and sensitivity training for police officers. This recommendation belongs to category 2 (implementation within 3-6 months) The importance of the independence of the Office of the Inspector General lies in its ability to monitor the performance of the bodies affiliated to the Ministry of Interior, hence confronting any shortcomings or breaches by any staff member of the Ministry. Currently, despite the independence of the Office, it is still affiliated to the Ministry of Interior and reports directly to it. It is very useful to recruit staff members with legal backgrounds and who should have no other jobs. Women should also be represented in this Office. In order to protect its independence, the Office should put forward its financial and administrative procedures. 4/ To amend the decree establishing the NSA to ensure that the organisation is an intelligence gathering agency without law enforcement and arrest powers. The NSA should also have an independent office of inspector general to carry out the same internal “ombudsman” functions mentioned above with respect to the MoI. Legislation should be adopted to provide that even during the application of a State of National Safety the arrest of persons should be in accordance with the Code of Criminal Procedure. This recommendation belongs to category 1 (immediate implementation) This recommendation comes within the context of legislative reform which needs a specialised independent committee or sub-committee affiliated to the National Independent Commission, i.e. law review committee (see the comment on the first recommendation). On 28 November 2011, the King issued a royal decree amending article 4 concerning the national security services. It stated ‘the national security service is empowered to gather information and monitor all harmful activities’. Article 5 stated that ‘the national security service should refer cases which require arrest or detention to the Ministry of Interior for legal procedures’. 5-To adopt legislative measures requiring the Attorney-General to investigate claims of torture and other forms of cruel, inhuman or degrading treatment or punishment, and to use independent forensic experts. Such procedures should guarantee the safety of those raising such claims. Furthermore, the legislation should provide for remedies for any person claiming retribution for having raised a claim of torture or other forms of cruel, inhuman or degrading treatment or punishment. This recommendation belongs to category 2 (implementation within 3-6 months). This recommendation comes within the legislative reform framework which needs a specialised independent committee or sub-committee affiliated to the new appointed commission and can be called ‘law review committee’ (see our comment on the first recommendation). Torture and forms of inhumane treatment should be criminalised by the penal code. We also suggest to set up a unit inside the Public Prosecutor’s Office for receiving complaints regarding torture allegations. This unit should be empowered to investigate and report to the Public Prosecutor regarding the results and recommendations. The work of this unit should not conflict with the work of (the Independent Commission for Investigating Torture Complaints) which the seventh recommendation points to. Rather, they should complement each other. The statement of the Council of Ministers issued on 21 November 2011announced an amendment regarding the definition of torture, criminalised all its forms and called for stricter punishments for those involved. It also called for the removal of any time restrictions to file a torture complaint. These amendments will guarantee that Bahrain’s laws on torture are in line with international human rights standards. The relevant bill will be referred to Parliament for ratification. 6- To make subject to review in the ordinary courts all convictions and sentences rendered by the National Security Courts where fundamental principles of a fair trial, including prompt and full access to legal counsel and inadmissibility of coerced testimony. This recommendation belongs to category 1 (the immediate implementation). We suggest that the appellate courts take the responsibility of this recommendation in order to promote the role of the national courts in promoting justice. The appellate courts should follow the standards of fair trial stated in the International Convent for Civil and Political Rights (ICCPR), which Bahrain acceded to in 2006. 7- To conduct effective investigations in accordance with the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions of all the deaths that have been attributed to the security forces. Likewise, all allegations of torture and similar treatment be investigated by an independent and impartial body, following the Istanbul Principles. The investigation of both types of alleged violation should be capable of leading to the prosecution of the implicated individuals, both direct and at all levels of responsibility, with a view to ensuring that punishment be consistent with the gravity of the offence. To establish a standing independent body to examine all complaints of torture or ill-treatment, excessive use of force or other abuses at the hands of the authorities. The burden of proving that treatment complies with the prohibition of torture and other ill-treatment should be on the State. We suggest that the National Commission concerned with implementing Bassiouni’s recommendations take responsibility for this and conduct immediate investigations in the killing incidents associated with security forces and determining those responsible. The Commission can seek the necessary help from national, regional and international experts to conduct investigations related to violations of international human rights law, international criminal law and international humanitarian law. This recommendation belongs to category 1 (the immediate implementation). The establishment of an independent committee to investigate allegations of torture belongs to category 3 (long-term implementation) and requires continuous consultation with human rights organizations and national and international human rights experts. 8- To implement an extensive program of public order training for the public security forces, the NSA and the BDF, including their private security companies, in accordance with UN best practices. To ensure future compliance with the Code of Conduct for Law Enforcement Officials, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and the security forces should be trained in the human rights dimensions of detention and interrogation, and in particular the obligation to refuse to participate in any actions involving torture and other prohibited ill-treatment. This recommendation belongs to category 3 the (long-term implementation) The role of civil society organizations is very important during this period. We therefore suggest that the implementation of this recommendation should be awarded to the national human rights organization such as the Bahrain Human Rights Society and NIHR. The necessary budget should be made available to these organizations. This suggestion would activate the role of these organizations and encourage them to play an effective role in promoting human rights in Bahrain. On 8 December 2011, the Ministry of Interior signed a memorandum of understanding (MoU) with the regional office of the international Red Cross allowing the Red Cross to visit prisons and detention centres. The MoU also includes organizing training programmes in human rights and international humanitarian law for the personnel of the Ministry of Interior with the aim of developing their skills and promoting human rights. 9- To avoid detention without prompt access to lawyers and without access to the outside world for more than two or three days. In any event, all detentions should be subject to effective monitoring by an independent body. Moreover, every person arrested should be given a copy of the arrest warrant and no person should be held incommunicado. Arrested persons should have access to their legal counsel and family visits in the same way as any person detained under the Bahrain Code of Criminal Procedure. This recommendation belongs to category 2 the (implementation within3-6 months) We suggest to activate the role of judicial supervision during the time of arrest and initial investigation and that this should be included in the Code of Criminal Procedure. 10- The Commission recommends that the GoB establish urgently, and implement vigorously, a programme for the integration into the security forces of personnel from all the communities in Bahrain. This recommendation belongs to category 3 (long-term implementation) We propose the establishment of a commission to review employment in both public and private sectors in order to create necessary balance between the different components of the Bahraini society in all public and private jobs. 11- To train the judiciary and prosecutorial personnel on the need to ensure that their activities contribute to the prevention and eradication of torture and ill-treatment. This recommendation belongs to category 3 (long-term implementation) This recommendation comes in the context of reforming the justice system especially judges and the prosecutors. This requires revising the Code of Criminal Procedure by the proposed committee in the first recommendation. The committee should work to present proposals to Parliament regarding the inclusion of all guarantees of fair trial including the pre-trial detention in the Code of Criminal Procedure. Also, determining the supervisory body for this process according to international human rights standards especially the Universal Declaration of Human Rights and the ICCPR, which Bahrain has joined in 2006. In addition to devise programmes for building skills of judges and prosecutors. We also suggest the establishment of training departments inside the Judiciary and the Ministry of Justice to build the capacity of judges and prosecutors. Until the establishment of such departments, it is proposed to invite OHCHR to carry out capacity building for judges and prosecutor provided that the necessary financial and technical support are made available. 12- There should be audiovisual recording of all official interviews with detained persons. This recommendation belongs to category 1(immediate implementation) The purpose of this recommendation is to remove doubt regarding confessions obtained under torture. The existence of audiovisual recording would guarantee the integrity of the investigations and the credibility of testimonies and confessions. According to the Ministry of Interior’s statement of 8 December 2011, all necessary procedures were taken to install cameras to guarantee the availability of audiovisual recordings for all official interviews of the detainees. 13- To commute the death sentence imposed for murder arising out of the events of February/March 2011, in the light of the preference of Article 6 of the ICCPR for the abolition of the death penalty and the concerns regarding the fairness of trials conducted by the National Safety Court. This recommendation belongs to category 1 (immediate implementation) Executing this recommendation is the responsibility of the political body and its leadership. We suggest that the National Commission is to review all related sentences and recommend as soon as possible the appropriate procedures for each case. 14- To compensate and provide remedies for the families of the deceased victims in a manner that is commensurate with the gravity of their loss. In this connection, the Commission welcomes the Royal Decree Law N0. 30 of 2011, issued on 22 September 2011, for the establishment of the National Fund for the Reparation of victims. This recommendation belongs to category 1 (immediate implementations) We suggest activating the Compensation Fund and that it should be placed directly under the care of the King or his delegate. Also, the reparation should be enough and include the family of the victim and should be paid immediately without any delays. It is also necessary to think of other ways of collective reparation by way of setting up a forum or a centre to provide care and rehabilitation for the victims and their families. 15- To ensure that the remaining dismissed employees have not been dismissed because of the exercise of their right to freedom of expression, opinion, association or assembly. This recommendation belongs to category 1 (immediate implementation) The political body and its leadership is responsible for implementing this. We suggest that the National Commission should look into the related cases and quickly recommends appropriate procedures to reinstate or compensate the dismissed workers. We also suggest the establishment of a sub- committee to revise the cases of dismissed workers in order to facilitate the following up of these cases and decide on them quickly. 16- To reinstate all students who have not been criminally charged with an act of violence and to put in place a procedure w We suggest the establishment of a sub-committee inside the National Commission to be called ‘the committee for reviewing the cases of dismissed students’. This sub-committee should not only recommend the reinstatement of students but should also present a comprehensive plan to address lost classes. hereby students who were expelled on legitimate grounds may apply for reinstatement after a reasonable period of time, and to adopt clear and fair standards for disciplinary measures against students and to ensure that they are applied in a fair and impartial manner. This recommendation belongs to category 1 (immediate implementation) We suggest the establishment of a sub-committee inside the National Commission to be called ‘the committee for reviewing the cases of dismissed students’. This sub-committee should not only recommend the reinstatement of students but should also present a comprehensive plan to address lost classes. 17- Relaxing censorship and allowing the opposition greater access to television broadcasts, radio broadcasts and print media. This recommendation belongs to category 2 (implementation within 3-6 months) We suggest establishing an independent media commission directly responsible before Parliament and the King. The tasks of this commission include: putting into place balanced media policies to guarantee equal opportunities to all social segments and different political views. It should also supervise the implementation of these policies after obtaining the approval of the King and Parliament. 18- To undertake appropriate measures including legislative measures to prevent incitement to violence, hatred, sectarianism and other forms of incitement which lead to the violation of internationally protected human rights. This recommendation belongs to category 3 (long-term implementation) We suggest the establishment of a legal committee with the task of putting forward proposals of articles to be added to the Penal Code to criminalise all forms of incitement to violence, hatred and sectarianism. This proposed committee should present its plans to Parliament within one month of its establishment following consultations with all the main players including political societies, civil society organisations and human rights organisations. We also suggest, after completing the necessary legislative amendments, to establish a commission for peaceful co-existence to promote and spread tolerance, acceptance of the ‘other’ and rejection of discrimination. 19- To develop educational programs at the primary, secondary, high school and university levels to promote religious, political and other forms of tolerance, as well as to promote human rights and the rule of law. This recommendation belongs to category 3 (long-term implementation) This recommendation requires the establishment of a specialised committee in education and human rights. There is need to adopt a national strategy to incorporate the concepts and principles of human rights in curriculums of primary schools up to university level. Gradual implementation of this strategy should be taken into consideration and it is possible to benefit from the experience of Morocco in human rights education. The strategy should contain short and long-term objectives. Currently, there is a human rights subject in official education syllabi which includes basic concepts of human rights in all education levels. 20- The Commission recommends to the GoB the development of a national reconciliation programme that addresses the grievances of groups which are, or perceive themselves, to be deprived of equal political, social and economic rights and benefits across all segments of Bahrain’s populations. This recommendation belongs to category 3 (long-term implementation) We suggest the establishment of a permanent commission for national reconciliation, which works through practical programs and realistic work plans to combat all forms of discrimination and marginalisation. Additionally, the commission should work to promote values of citizenship as a basic framework for rights and obligations and make proposals for political integration. This can be achieved through the participation in decision-making through national and constitutional institutions as well as making economic and social rights a reality. Guarantees for implementing the BICI recommendations:1- National guarantees: National guarantees play an important role in the implementation of the recommendations, for without political will these recommendations will not be implemented. The clearest proof for the political will to implement them is the establishment of BICI as the first of its kind in the Middle East and North Africa. There is also another important indication such as the King’s personal acceptance of the BICI report and his pledge to implement its recommendations and establishing a National Commission for the purpose of following up the implementation. Moreover, Bahrain’s ambassador to the UN presented the BICI report to the Secretary-General of the UN pledging the implementation of its recommendations. Also, the invitation of the High Commissioner for Human Rights to Bahrain for consultation and perhaps for helping out in the implementation of the recommendations indicates the seriousness of Bahrain regarding this issue. 2- International guarantees These include guarantees presented by the Secretary-General of the UN Ban Ki Moon to follow up the recommendations of the report with OHCHR. He stated that his own ‘advisors will closely study the report and follow up its recommendations’. He also added that ‘we must closely study it with HCHR Navi Pillay and other senior advisors in the UN’. Bahrain informed the OHCHR about the steps taken to implement the recommendations of BICI. This took place in a meeting between the Under Secretary of the Ministry of Human Rights and Social Development, Saeed Faihani, and the Deputy High Commissioner, Youg wha Kang during a workshop concerning promoting human rights mechanisms in the GCC countries held in Doha between30 November - 1 December 2011. This emphasises the fact that the supervision of international bodies represents at least an ethical guarantee for the implementation of the recommendations. |
