14 Nov 2011 Bahrain Mirror (Exclusive): Bahrain Mirror observed that the Royal Commission for Inquiry had committed five fatal breaches of the standards of the United Nations High Commissioner for Human Rights. Bahrain Mirror monitored those violations through the preliminary assessment of the establishment and the works and practices of the Commission. It sought the help of the Human Rights organizations and prominent Human Rights figures. The breaches included the following:

- The Commission was established by an individual will not by the principle of national consultation< -The mistakes in selecting the members of the Commission -Marginalization of the role of the national non-governmental organizations (NGOs). -Circumventing the role of the United Nations and other international actors -The mistakes in the practice, professionalism and neutrality

1. The Commission was established by an individual will not by the principle of national choice

The publication of the Truth Commissions issued by Office of The United Nations High Commissioner for Human Rights states that the national choice is one of the core principles to establish a Truth Commission and it stresses that “..the decision to have a commission must always be taken by nationals. This decision should be based on a broad consultative process to seek especially the views of victims and survivors, and make clear the functions, strengths and limitations of truth commissions” [Page 5], and under the section of “Consultation” in establishing a Truth of Commission the publication says: “The consultation should explicitly include victim communities and civil society organizations, and should allow for a period of significant input into the fundamental mandate of the commission, as well as feedback on specific draft terms of reference as they are developed” [Page 7].

However, when establishing the “Bahraini Independent Commission of Inquiry (BICI)” no consultations of any sort have taken place, not with the victims, nor with the civil society organizations whether those consultations were in the decision of establishing the Commission, its functions, its mandate or terms of reference, it was established only by an individual will of the King without consulting the citizens. As there was a breach of a core principle in the Commission establishment, therefore it does not express the national choice. It expresses the King’s choice only. The name of “The Royal Commission of Inquiry” that the media outlet used was accurate before it was changed recently, without any media fanfare, into “Bahraini Independent Commission of Inquiry”.

2. The mistakes in selecting the members of the Commission

The publication of the Truth Commissions issued by the Office of The United Nations High Commissioner for Human Rights states: “Ideally, these should be widely respected members of society…. Some countries have chosen to include international commissioners; this decision will be based on a number of local factors and inclinations, and should ultimately be decided by nationals”. [Page 13]. The publication cites models of selecting international commissioners: “In Sierra Leone, OHCHR was asked to suggest three commissioners, who were then commented on by the national selection panel... Elsewhere, including in Haiti, El Salvador and Guatemala, international commissioners were appointed without much of a consultative process, with many of the names originating from the United Nations Secretariat in New York. Close attention should be given to improving on some of these past practices—allowing for strong candidates to emerge, while ensuring the full and informed involvement of national actors in the final selection”. [Page 14, Footnote 12]

However, what actually took place for with BICI; its commissioners were appointed by an individual will of the King while not ensuring “involvement of national actors in the final selection” [Page 14, Footnote 12]. There was no transparent or impartial mechanism in selecting its international commissioners. Even when representatives of civil society organizations protested that one of the commissioners was from a neighboring country and had a biased stance toward the events under investigation (she defended the influx of the Saudi troops to Bahrain). Those in charge of the Commission did not heed to that protest.

Though BICI includes prominent international figures, e.g. Dr. Nigel Rodley whom is known and trusted by Human Rights activists in Bahrain, that does not remedy the mistakes in the mechanism of the commissioners’ selection according to the international standards and experiences, as it came without a proper consultation process repeating what happened in Haiti, El Salvador and Guatemala. There is no excuse for the Commissioners that they were of international prominent positions. As it is known that the appointment in the international positions comes through governmental political decisions. So it is not necessarily that those who occupy those positions are unbiased and competent.

3. Marginalization of the role of the national non-governmental organizations (NGOs)

Despite that the BICI made use of the national NGOs as source of information to reach the victims; however, those organizations were not consulted in establishing the Commission or determining its terms of reference. More-over those organizations were not allowed to assume their role in fact-finding. It is not expected that they would be involved in the follow-up of the implementing of the Commission recommendations. While the publication issued by the Office of The United Nations High Commissioner for Human Rights says [Page 33]: “national NGOs have a key place in the work of truth commissions. Indeed, the strongest commissions have been those that work in the context of a strong and active civil society. NGOs should for the most part remain independent from the commission, even while assisting it with information, contacts or expertise. It is important that they monitor the commission’s activities and provide honest feedback, and push the commission to respond appropriately to the needs of victims and communities”. “The commission must hope that civil society organizations will be its partner in the follow-up phase, since, once the commission submits its final report and is formally dissolved, the task of carrying out its recommendations must be taken up by others”. [Page 31]

4. Circumventing the role of the United Nations and other international actors

The King of Bahrain decided to form the fact-finding Commission to persuade the United Nations to give up - or postpone - a decision that was to be issued to form a commission of inquiry for the events of Bahrain. Although the members of the Committee appointed by the King are international figures, however, their appointment was not consulted with the United Nations or the international non-governmental organizations (NGOs) with expertise whether in appointing the members of the Commission or in providing direct field assistance.

The publication of the Truth Commissions issued by the Office of The United Nations High Commissioner for Human Rights states on Page 34:“The enthusiasm and expertise of United Nations staff should not supplant the role of national NGOs or other actors”, the publication itself stresses on Page 35: “The United Nations, particularly OHCHR, and foreign Governments with influence over the country have an important role in monitoring the Government’s compliance with the truth commission’s mandate... As the commission comes to a close, pressure from internationals can be critical to keep its recommendations on the agenda and actively pursued for implementation.”

Until now, it has been clear that the BICI has not given a real role to the international non-governmental organizations whether those that monitored and documented the events that were related to the Commission terms of reference, or those organizations that have the expertise in fact-finding. The publication of the Office of The United Nations High Commissioner for Human Rights lists a number of participations that those organizations can offer. “International NGOs have also been helpful to many truth commissions in the past” [Page 35], those participations included: “International advocacy and monitoring organizations sometimes produce important reports during the commission’s work that assess its accomplishments and/or critique any policy issues that may challenge international standards, especially with regard to due process or decisions that may affect criminal justice at a later date” [Page 36], which is anyhow a task that can be carried out by the international NGOs at Bahrain.

5. The mistakes in the practice, professionalism and neutrality

Although this report is not written to evaluate BICI work, especially its final report has not been issued yet. However, there are serious indications:

-The BICI chief declared at an early stage that there was no evidence of systematic violations that had been committed by the government, by that he exonerated the government officials while the process of monitoring and documenting was at its beginning. -The BICI chief repeatedly hailed the King of Bahrain, the Ministers and the government officials for their cooperation with the Commission, while he took harsh stance toward a number of the victims whom were believed (even by the Commission itself) were subjected to violations of arbitrary arrest, torture, or unfair trials, even it amounted to explicit criminalization of one of those sentenced to death while a final verdict had been issued against him yet. The BICI chief questioned the intentions and credibility of the group of the doctors who had been subjected to arbitrary arrest, torture, ill-treatment and unfair trial, which was not a documented professional submission but public statements to the press. -Despite his repeated declarations that he would not give an opinion only after the final results of the report, the BICI chief recently adopted, in an interview, the whole regime narrative of the events, where he said the events were related to the sectarian factor and the influence of foreign powers, thus before issuing the report which is scheduled to be on 23 November 2011, he provided the justification to the authority for all the violations, and blamed the victims along with a wide range of Bahrainis who have been suffering discrimination and persecution for many years. The BICI chief adopted what some of the pro-government extremists’ writing of the intention of the opposition to establish an “Islamic Republic”, while there was no single proof in all the publications or recordings even the lawsuit documents did not allege that as a group in the opposition demanded a Democratic Republic not an Islamic one.

Based on the above, the crucial mistake in establishing the Bahrain Independent Commission for Inquiry can be summarized: it was done by the King’s individual will without consultation with the citizens and the civil society organizations, and the mistake in appointing its commissioners and its work, the failure of the Commission to collaborate with the national and international NGOs and the United Nations. Beside, the serious indications of its lack of independence, impartiality and professionalism.

Hence, the United Nations High Commissioner for Human Rights has to form and send a fact-finding commission to Bahrain to inquire about the events since February 14, 2011, their background and repercussions.

The national and international NGOs have to perform an authentic evaluation for the works of BICI and the report that it will issue, to safeguard against the exploitation of the authority in Bahrain for BICI to distort facts, justify the diverse and wide violations that were committed by the authority in its dealing with the popular movement especially since February 14, 2011, in addition, to benefit from the experience and to avoid its shortcomings in other countries.

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