Bahrain's Independent Commission of Inquiry: A Path to Justice or Political Shield
["All the blood, martyrs, and crimes were [the result of] individual acts?" Protest outside BICI office in August. Image from gulf-times.com]
by Alaa Shehabi Published on Jadaliyya
Nov 22 2011
Tomorrow, 23 November 2011, the Bahrain Independent Commission of Inquiry (BICI), comprised of an international panel of law experts, is due to submit its report following a four-month investigation of the violence that broke out since the February 14 Uprising in Bahrain. Aside from questions of partiality raised by ongoing statements made by its Chairperson, Professor Bassiouni, the more serious question centers on the political purpose that this report will serve. Will it offer justice for victims of the most brutal crackdown in Bahrain’s history? Or will it whitewash the findings by avoiding high-level accountability and offering a political shield for the regime against its critics?
The February 14 Uprising and the Saudi Crackdown
“All those who called for the downfall of the regime [isqat al-nizam] will have a wall fall on their heads. Bahrain is a small island – there is no escape.”
These were the ominous words of the son of the King of Bahrain, uttered on state television in his newly appointed role as Head of the Royal Guard in March 2011. It was a stark warning: no one who participated in Bahrain’s revolt would be spared the regime’s wrath. Many, like myself, felt like a ton of bricks had fallen on our heads. There really was no escape. My own husband, Ghazi Farhan, an apolitical businessman who did not participate in the protest movement, was ambushed in his office parking lot on 12 April by masked armed men and held incommunicado for fifty days before being dragged to a military tribunal and sentenced to three years of imprisonment. He was the liberal and consumer-orientated face of the young generation of Bahrainis who cared little for politics. But that is no longer the case. Much of this has changed. Not just in him, but in many of the youth who have witnessed or experienced such repression.
Ghazi is one of the hundreds of forgotten prisoners languishing in an overcrowded jail that was emptied of common criminals over Ramadan in late Summer 2011 to make room for more prisoners of conscience. In October alone, 208 people were sentenced to a combined total of 2500 years in prison through military tribunals. Since February 2011, forty-three people have been killed, almost 1500 arrested and tortured, and nearly 3000 fired from their jobs. Hundreds of Bahrainis have gone into exile.
The mass persecution of thousands of activists and their families began as punishment for daring to participate in mass protests in which people demanded the end of absolute rule. Those protests brought the regime to the brink of collapse. Some demanded a constitutional monarchy. Others wanted an end to the monarchy altogether. One by one, masked men raided the homes of youths, doctors, lawyers, teachers, and engineers. People were blindfolded and whisked off to undisclosed locations with little or no information given to their distressed families. Fuelled by a public campaign of naming and shaming on state television, thousands were dismissed from their jobs, labeled as “traitors,” and denied the ability to question the accusations made against them. Bahrain’s prisons, infamous for the torture that took place in them during the 1990s, were once again transformed into terror chambers. During his first four days of interrogation at the Riffa West police station, my husband was sleep deprived, whipped on the back and feet, and verbally abused. Four men, including a renowned book publisher, Karim Fakhrawi emerged with battered bodies after a few days of their arrest. The government’s forensic doctors attributed the bruises and marks to “sickle cell anemia” or “kidney failure.” “We will kill you like we killed Karim Fakhrawi, if you do not confess,” my husband was told by his interrogator.
Choosing the route of brutal repression, backed by neighboring Saudi Arabia’s military intervention, may have secured the regime its survival for the time being. Yet the human cost will prove too heavy for such a small island to bear. The regime and its state institutions has been implicated in serious and systematic crimes, which blatantly flouted internationally recognized principles and laws. A regime that has so keenly nurtured its international image as “business-friendly” and rarely made headlines over the last decade—except to announce its role as host of the prestigious Formula One races—now finds itself being referred to as “tyrannical” on the front pages of Western newspapers.
In the aftermath of the crackdown, the government needed a major damage control strategy. One that would allow it to regain some kind of legitimacy in the eyes of the international community, if not amongst its own people. So a regime accused of grave violations of human rights—ones that could very well amount to crimes against humanity—has initiated an investigation to be supervised by panel of renowned international law experts. On 20 July, the commission, comprised of five members headed by Professor Bassiouni, commenced its work.
Stalinesque Military Tribunals for Civilians
Since July 2011, at least six people have been killed by birdshots or excessive tear gas during the daily protests that have persisted despite regime brutality. To date, around five hundred detainees are languishing in Bahrain’s prisons, most of them sentenced in military tribunals specifically established to deliver summary justice. In Bahrain’s corrupt judicial system, even if cases are appealed in regular civilian courts, the possibility of a fair trial or access to legal counsel is severely diminished. Most detainees have no idea what the nature of charges against them are until they are brought to trial. Punishments are then inconsistently applied. Again, in my husband’s case, he was sentenced to three years on two counts of participating in an illegal assembly consisting of more than five persons and spreading false information that incites hate against the Bahraini regime.
In an attempt to diffuse political pressure, the regime has released three groups of several hundred detainees at a time as a gesture of goodwill. The attendant gains, however, were quickly counterbalanced by further routine arrests of civilians and the continued prosecution of those who were previously arrested. Earlier this month, a group of twenty doctors was handed sentences ranging between five to twenty years each. One of the more outlandish cases is that of the thirty-two men accused of throwing a Molotov cocktail bomb at a farm of a royal family member: they were sentenced to five hundred years in total. The evidence in these cases, when it existed, was based on forced confessions as well as “secret” and other unreliable sources.
The wave of detainee releases followed international condemnation of the death sentences handed to detainees who had been forced to “confess” on state television despite later retracting their confessions in the courtroom and claiming they were tortured. In appalling disregard for his family, state television aired the confession of Ali Sager just days after his death in police custody as a result of physical abuse and torture. Such confessions are illegal under international law. They also highlight the complicity of state television, which sends its film crews to state security agencies to produce these filmed confessions. One of the released doctors told me how his filmed confession (which has not been aired because the doctors have not been sentenced yet) was being made up as they went along, with the security officer and television director co-writing the script. “We just said what they wanted us to say,” he told me.
The Bahrain Independent Commission of Inquiry
On 29 June, the King announced the establishment of a government-sponsored investigation by an international panel. Ironically, the state news agency and local press continue to refer to the commission as the “Independent Royal Commission” although its formal title is the Bahrain Independent Commission of Inquiry (BICI).
In his speech announcing the establishment of the Commission on 29 June, the King stated:
“We need to look back and to determine exactly what happened in February and March, and to consider the reactions to those events. There were victims of the violence that took place. They must not be forgotten. There have been accusations and counter-accusations about the origins of the violence. A lack of confidence has prevailed, and disagreements have led to conflicting beliefs about events, even if such beliefs are founded only on rumors."
Given the underlying message of such a statement, confusion was a plausible reaction. Here was a king, claiming to have been impartial and to have had no knowledge of what happened in his own country, effectively abdicating his responsibility over the actions of the army and security forces. Professor Bassiouni, appointed as the chairperson of the BICI, arrived in Bahrain the next day to give a press conference. He praised the King and perpetuated this idea of the oblivious ruler who wants to get on with reforms.
At the same time that Bassiouni was addressing journalists, the nearby village of Jidhafs was set ablaze as security officers bombarded protestors with tear gas and stormed the village by foot and armored vehicle. Just a few days later, the nearby village of Sehla buried one of its protesting sons, Majeed Ahmed. Thus, the spectacle of “truth and reconciliation” began, unabated by the continued persecution of dissent in the country.
The beats of the four syllable chant “yas-qut Ha-mad” continue to be drummed on pots and pans, and blown threw vuvuzelas on a nightly basis. There is no doubt amongst the protesting youth that the King, as the head of state, is ultimately responsible for the atrocities. The government, for its part, is also resolute; the state television channel and press, as well as its online “troll” army, have been spewing propaganda about the “termites,” with “naming and shaming’” campaigns of protestors leading to swift and efficient arrests.
The government-appointed commission faced great controversy when its Chairman Cherif Bassiouni held press conferences in which he revealed his judgment on who was, or was not, responsible for the violence. As a Washington Post editorial points out, the commission has been "undermined by the behavior of its Egyptian chairman, who has made public statements preemptively exonerating the ruling family.” Reuters concurs that the commission “was undermined by a series of gaffes by its chairman Cherif Bassiouni, who seemed to have pre-judged the inquiry's outcomes.”
There seems to be a clash of visions on the role that Bassiouni sees for BICI beyond its mandate and the role that Bahraini victims hope the BICI would assume. According to Bassiouni’s own statements in 2001:
“We must ensure that the processes of discovering truth and achieving justice, albeit relative, is not politically compromised as to its impartiality, fairness, and effectiveness.”
It is therefore a wonder why Bassiouni has gone on the record to give the preemptive findings of BICI and why he has rejected the prima facie case that the Bahraini government is responsible for systematic torture by deliberately allowing, if not ordering, torture to continue on a widespread basis for months.
BICI as a Political Instrument: Legitimizing the Regime
It is natural for Bahraini people opposed to the regime to be deeply suspicious of the BICI’s motives in the traumatic aftermath of such a far-reaching and merciless regime crackdown. The “Royal Commission” was presented as a “gesture of conciliation” in the international press, but few in Bahrain saw it as that. The failed government-sponsored “national dialogue” had not even ended when the BICI was launched, demonstrating the lack of government will in engaging seriously with the opposition. As with the “national charter” in 2001 that had falsely promised democratic reform, opponents of the regime suspected BICI of attempting to embellish the government’s image and to offer a political shield against its critics.
The opposition also criticized the inclusion of Dr. Badriya Alawadhi, a Kuwaiti international law expert, on the investigation committee. Alawadhi had written an opinion piece before her appointment expressing her view on the legitimate use of Gulf Cooperation Council troops in Bahrain for “national and humanitarian security” against perceived external aggression. Her op-ed showed that Alawadhi already had a clear bias on events in Bahrain and could not be relied on as an impartial investigator. The United States government, which had sought to push through an arms sale worth $53 million, has also been forced to delay its finalization until the report is published. This brings US interests (its navy’s 5th fleet is based in Bahrain) at direct loggerheads with concerns over human rights in Bahrain. The United States certainly would like things to be “business as usual” with the GCC states, including Bahrain, and to continue arming these regimes up to their teeth. Much of the tear gas, armored vehicles, and other riot control equipment used against protestors were provided by the United States itself. On 20 October, BICI issued a statement to say that it has requested a three-week extension of the planned date of publication to write the report, citing a lack of response from government departments and ministries.
So the question remains: why would an accused regime initiate a truth commission that would actually air its dirty laundry that the regime has long claimed was squeaky clean? Dr. Abdulhadi Khalaf, a Bahraini academic, suggests on his blog the three key motivational factors for taking sponsoring the commission: (1) Improving the reputation of the regime; (2) Controlling the uprising, taming the divisions within the ruling family, and disrupting the unity of the opposition; and (3) Easing international pressure.
The unending reports of human rights abuses documented by various international rights organizations and the media coverage, albeit lacking, had sown some fruit with the cancellation of the Bahrain Grand Prix that was scheduled for March, and effectively crossed Bahrain off from many other conferences and exhibitions. The cancellation of the Formula 1 Grand Prix, a pet project of the Crown Prince, was particularly embarrassing for the regime. Drivers expressed discomfort at participating in a country with flagrant human rights abuses. An international mass petition signed by half a million people (the size of half the population of Bahrain) by Avaaz garnered support from many F1 fans. The brand “business-friendly” Bahrain took a serious blow and was retracted as an unofficial motto of the state.
The second motivation for initiating a truth commission lies in the role it will play in the internal political dynamics between, and within, the different stakeholders—the February 14 youth, the opposition parties, and the ruling family and their loyalists. On the one hand, BICI has become a place to park the country’s problems and allow the government to buy more time to repair internal rifts within the ruling family, explicitly played out between the King and the Crown Prince on the one hand, and the Prime Minister, Khalifa bin Salman Alkhalifa (in power for forty years) and the military chief, Khalifa bin Ahmed Alkhalifa on the other. Bassiouni sees one faction as reformist and the other as conservative. He believes that “the situation has evolved because the king and certainly the crown prince are much more committed to the rule of law and human rights than other persons in the government and the Al-Khalifa clan.” This comment is also suggestive of who Bassiouni blames for human rights violations: government officials and members of the royal family but not the King himself. Does this not suggest that there was some kind of state and organizational policy for torture? It will be interesting to see if the BICI names these people in the final report.
BICI has been openly pushing for reversal of state policies of torture and ending arbitrary detention and summary sackings by offering feedback to the authorities based on their ongoing findings and reports. The latter suggest that torture inside prisons at least has stopped. At times, the commission reached a brick wall, such as on the issue of the reinstatement of sacked workers and the continued excessive use of tear gas. In this way, the BICI has become a de facto negotiating party in the power struggle between several competing ruling family members pulling on the different ends of the tug of war. At times, Bassiouni has found himself as an arbitrator between the different factions and in some ways, is probably helping the King win over the more conservative elements in his family. The government has responded by offering several low ranking officers as scapegoats and prosecuted them on minor charges but as yet no one has been convicted for any misconduct or abuse.
The Bahraini regime is also hopeful that BICI might let some steam out of the protest movement by thwarting the opposition’s activism for the time being at least. The commission, after all, has become a buffer and intermediary between the aggrieved and the regime as the whole country awaits the outcome of the investigation. By preoccupying people with the process of investigation and filing of complaints, and by deluding them with a sense of justice, the regime hopes people will get distracted from the cause and from protesting and that their anger may subside. That has not happened. On the other hand, the element of time and distraction could widen the fissure between the different camps of the opposition (the “revolutionary” February 14 youth and the “resolutionary” traditional political societies) that in the past have been divided over the best course of agitation against the state.
Bahrain, possibly the most geopolitically strategic country in the wave of popular Arab uprisings has become the starkest test of Western foreign policy. It also became the first case of successful Saudi counterrevolution. President Barack Obama promised that his administration would stand with the people of the so-called Arab Spring, but in Bahrain the US government clearly stood with the regime and remained silent on the Saudi intervention to crush a popular and peaceful uprising. Obama, firmly siding with its ally, but unhappy with state repression, told the Crown Prince during his visit to Washington in the beginning of June that the Bahraini government must ensure “those responsible for human rights abuses will be held accountable." He reiterated the demands of the United Nations High Commissioner for Human Rights Navi Pillay who requested to send a UN mission to Bahrain on 7 June. There was also talk of repositioning the Fifth Fleet because of the social unrest, which was probably enough to push the ruling family into retreating from the height of its vendetta. As Western powers used all the leverage they could to draw the reigns in from the brutal regimes in Damascus and Tripoli, no such international accountability mechanisms were being employed in Bahrain, other than a possible request to send a UN investigative mission. That was enough to initiate a government appointed commission, and it was probably all that Saudi Arabia would allow. BICI therefore seems like a convenient escape route from international accountability, if not a way of averting it, in as much that one assumes such threats of accountability existed behind closed doors.
My Personal Experience with the BICI
I was one of the first people to meet with Bassiouni a day after he arrived in Bahrain on 30 June after he personally invited me to talk to him about my husband’s unjust arrest. This was his first visit to the country and he had met with the King earlier in the day. I came to the meeting with similar skepticism shared by the opposition but with eagerness to finally be heard and to relay the story of my husband as one example among hundreds. I was also keen to emphasize that I neither represented the opposition nor my father. I was presenting to him a clear case of a human rights abuse. A man ambushed in his office car parking, taken for interrogation, tortured, convicted on fatuous charges, and sentenced to three years based on forced confession. A black and white case of arbitrary arrest and abuse of power.
In the plush surroundings of the Ritz Carlton hotel, I arrived to be greeted by two government employees accompanying Bassiouni. As soon as I entered the room, he told me that he informed the King prior to our “private” meeting that he was meeting me. When I asked why he did that, he said he assumed the King would extend a gesture of goodwill and that he told him how he had reached out to my father in 2008. This is politics I told him, my father refused to be bought off by the King, and if he wanted to arbitrate he can do that with my father directly. I was there to talk about multiple human rights violations not politics! Bassiouni, with good intentions I am sure, immediately declared that, “the King must know about this, we will send him a letter requesting your husband’s immediate release.” I expressed my fear that such an intervention could endanger my husband further, but I was promptly reassured. Having heard nothing after that meeting, I emailed Bassiouni six weeks later to ask him to follow up. Bassiouni responded by saying that he did not know if the King acted on his request and therefore could not comment on who is responsible.
I came out of the meeting struck by several things: (1) Bassiouni’s lack of knowledge of the historical and political context or the history of what had occurred in Bahrain during the 1960s, 70s, 80s, or 90s in order to understand the reasons for both the uprising and the government’s practice of mass arrest and torture to quell the movements; (2) His absolute confidence in the King and Crown Prince as honest and well-intentioned “reformers” that are more committed to human rights; and (3) that Bassiouni saw himself as more than an investigator but also as an arbitrator. On the other hand, the BICI did make several requests, such as the reinstatement of fired workers, the slow release of detainees, and now the suggestion of compensation for victims of torture. But what compensation will heal the many scars on my husband’s back and body, and what comfort in the newly adopted language of a King who continues to detain him?
Today, the blinding sun of torture and injustice has reached its zenith and scorched the entire island. My husband’s personal horror has lasted for seven months and is ongoing. He has experienced multiple violations and is suffering from physical and psychological pain that necessitate a form of justice. It is an exemplary case of how the institutions and mechanisms of justice have been used as tools of vengeance in a country that has seen its darkest days in modern history. The ultimate judge of Bassiouni’s report will be the people of Bahrain, particularly those who were punished for taking to the streets and calling for equal rights, dignity, freedom, and democracy. There is still a chance that Bassiouni will salvage his reputation and restore the credibility of BICI with a report that holds the regime truly accountable for the atrocities they have committed.
Unless this report, like reports by various rights group (AI, HRW, etc.) addresses the systematic abuses and calls for the government to make major reforms, then the protest movement will go back to relying on itself (as it has been and like most other Arab countries) to bring democracy to Bahrain.
The BICI will issue its report on 23 November 2011.