Thursday, August 11, 2011

Cherif Bassiouni's response to Nabeel Rajab

Dear friends,

I just wanted to share with you a letter that Nabeel Rajab has sent to Cherif Bassiouni accusing him of basically not doin his job with integrity and with it I attach Bassiouni's response which made me want to give him a standing ovation...

I want to draw particular attention to the language of Rajab's letter and if you have ever heard him on TV you will quickly discover that there is no way he could have written this himself. I'll leave the pondering up to you...


Nabeel's letter (which was published on the BCHR website) 

09 Aug 2011
Open Letter:

Professor M. Cherif Bassiouni
Commission Chair, Bahrain Independent Commission of Inquiry

Dear Sir,

Subject: Your interview with Reuters on 5 August 2011

Your appointment to the independent commission tasked with investigating recent human right abuses in Bahrain was encouraging news for all those involved in the field of human rights. It is, therefore, with deep disappointment and regret that we at the Bahrain Centre for Human Rights (BCHR) read your recent comments. The comments suggest that, without completing anywhere near a full investigation, you are willing to espouse the view of the political establishment whilst paying lip-service to the concept of a fair and independent enquiry.

This is all the more surprising as your hasty comments contradict a vast range of published reports by well respected human rights groups who have spent time and resources investigating the situation in Bahrain. Indeed, your comments that “there was never a policy of excessive use of force” in Bahrain contrasts grimly with the news, published just days before, of an armed raid on the offices of Médecins Sans Frontières by the Bahraini authorities. Claims of torture by detainees are so widespread that it is hard to believe that they were carried out by a few bad eggs within the security forces.

Countless reports catalogue a range of human rights abuses which targeted specific segments of society, most notably medical workers. The well respected human rights group, Physicians for Human Rights, published a thorough report which detailed the systematic persecution of medical workers. Such organised, wide scale discrimination strongly indicates the collusion of high ranking government officials and renders your initial judgment that such abuses were “a case of people at the lower level acting, and there not being an effective chain of communication, control" premature and, potentially, extremely damaging to the credibility of the commission.

Even if we were to accept the extremely unlikely situation that the Minister of Interior (as currently suggested by you) was unaware of the actions of lower level government officials, Bahrain is still subject to the obligations outlined in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which requires it, in Article 16, to prevent acts of cruel, inhuman or degrading treatment or punishment when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Bahrain has clearly failed to maintain its obligations under this Convention.

Your current views seem to be based on a range of false assumptions. Most notably, that “it’s totally untrue that people are afraid of coming forward”. These comments are surprising, as those interviewed by the commission thus far are not representative of the vast range of people affected by the governmental crackdown on protestors. We are aware of a number of individuals who, initially subjected to torture, have since been subjected to further torture as punishment (and as a warning to others) for speaking out about the treatment they received. Whilst we, and a number of other organisations, are strongly encouraging individuals to come forward and speak to the commission about their treatment, the off-hand comments of the commission are insulting to those who have suffered, and continue to suffer, under the policies of the current regime and discourage participation in the commission’s investigation.

These concerns lead us to seriously question the legitimacy of this commission and its ultimate findings. You appear to have accepted without question the assertions of the government as to the number of political prisoners, the treatment they received and the governments “willingness” to rectify the mistakes of “rogue” individuals within the government framework. Because the Ministry of the Interior is ‘extraordinarily willing’ to listen to the commission, it does not follow that there was not a systematic policy of violence. This argument is a non-sequitur and questionable at best.

This defies the very objective of the commission; to reach an independent and impartial conclusion as to the human rights abuses committed in Bahrain and the cause of such abuses. Recent news regarding the release of prisoners, whilst encouraging, should in no way subtract from the commission’s stated goal.

Nabeel Rajab
Bahrain center for Human Rights
09 Aug 2011


Cherif Bassiouni's response:
Reply of the Head of the Bahraini Independent Commission of Inquiry (BICI) to the BCHR Open Letter

August 9, 2011
Mr. Nabeel Rajab
Bahrain Center for Human Rights

Dear Mr. Rajab,

Thank you for your letter of August 9, which states your concerns with the work, but more so the integrity, of the Bahrain Independent Commission of Inquiry (BICI).

1. The BICI does not espouse the government’s views or any other views. The statement I made was that so far we have received the cooperation of the Ministry of Interior, and that is borne out by the facts. I am attaching a self-explanatory statement that will soon be posted on the Commission’s website.

This allegation insults the Commissioners and staff who are working 14 to 16 hours a day to serve the cause of human rights in Bahrain. All of us have well-established records in the field of human rights and this speaks for itself. We are neither bought by nor at the service of anyone. We are at the service of human rights and will continue to act as such.

2. There is no doubt that there have been a large number of reported cases of human rights violations which include: deaths, torture and physical mistreatment, arbitrary arrests and detentions, wrongful dismissal of public and private sector employees, suspension of students and termination of scholarships, destruction of mosques, and destruction of private property. As we now know it, 35 people have been killed, and one is too many. We estimate from the more than 900 emails and 200 complaints, as well as interviews with over 300 victims and witnesses, that the possible number of physical abuse and torture may well reach into the hundreds, but we still do not have a complete picture of these violations. We need the cooperation of everyone in order to ascertain that information.

3. Once we have concluded our investigations, it will be possible to determine whether such a large number of violations are the product of “state or organizational policy” (see the definition of crimes against humanity in the ICC’s Art. 7, para. 2; see also M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press, 2011). This is separate from the individual determination of individual cases of torture under the Convention Against Torture to which Bahrain is a state party. (See Nigel Rodley & Matt Pollard, The Treatment of Prisoners Under International Law (Oxford University Press, 3d ed. 2009), and M. Cherif Bassiouni, The Institutionalization of Torture by the Bush Administration (Intersentia, 2010)).

4. As a lawyer, you know that each of these crimes has separate legal elements that need to be established. Moreover, I am sure you know the legal differences between individual criminal responsibility and the responsibility of superiors, which is more difficult to establish. In particular with respect to the latter, we need to establish whether superiors in the chain of
command failed to take appropriate measures to prevent torture when they knew or should have had reason to know that torture took place. There is also command responsibility, when those in the chain of command failed to investigate and prosecute those who commit such a crime.

5. These considerations of international criminal law are not exclusive, since the Bahrain criminal code contains two provisions criminalizing torture (namely, Arts. 208 and 232). These provisions also apply with respect to torture and other forms of physical mistreatment which may be of a lesser nature, and we are not ignoring this source of national criminal responsibility. The BICI is diligently pursuing all of these leads, and it is premature at this point to reach any valid legal conclusions.

5. With all due respect to all the international human rights organizations you have mentioned, I am sure that as a lawyer you will agree that their reports are considered secondary evidence. We need to either have access to the facts upon which they reached their conclusions, or to be able to determine those facts on our own. Since we are not a human rights organization, as you yourself stated, we need to ascertain the facts not only for their broader significance, but also with a view to determining where the system went wrong, who in the system initiated wrongful policies or carried them out, and how to correct these wrongs.

6. In light of the scope of what has happened, the polarization and radicalization that exists, the climate of suspicion and distrust, and the scale of the violations claimed, I am sure you will agree that it is premature to reach any conclusions. Any focalized or limited statements such as the one I made to Reuters cannot be used as a basis for the type of generalizations to which you and others have arrived.

7. Lastly, I understand that you were interviewed in an online newspaper article today in which you claim that the BICI is not looking into the deaths of persons. This is simply incorrect and you know this, since you yourself have an appointment with the BICI to accompany witnesses with evidence concerning deaths. Furthermore, I found it disheartening that you deemed it necessary to personally attack me in that interview.

The BICI will continue its work as an impartial, fair, and neutral body dedicated to the service of human rights, irrespective of any criticism or any political perspectives that are at play. We are here for the truth and nothing but the truth. We remain open to any constructive criticism and to any constructive ideas that may improve our work, and we welcome everyone’s cooperation in the pursuit of these goals which we are all pursuing.

Trusting that you will publish this reply to give it the same publicity that you have given your open letter, and that you will see fit to continue to cooperate with us and to help us in achieving our mission. We look forward to cooperating with civic leaders like yourself to successfully accomplish our mandate.

M. Cherif Bassiouni
Chair, Bahrain Independent Commission of Inquiry

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