[The following is an excerpt from the Bahrain Independent Commission of Inquiry (BICI) report, which was released in both English and Arabic on 23 November 2011. For analysis of the context and political implications of the BICI, see Jadaliyya`s Bahrain`s Independent Commission of Inquirt: Path to Justice or Political Shield. Scroll down to download the full report.]

Chapter XII — General Observations and Recommendations

1686. Article 1 of the Royal Order No. 28 of 2011, pursuant to which the Commission was established, mandated the Commission ―to investigate and report on the events occurring in Bahrain in February/March 2011, and any subsequent consequences arising out of the aforementioned events, and to make such recommendations as it may deem appropriate.‖ Article 10 of the Royal Order authorises the Commission to make ―recommendations for reconsideration of administrative and legal actions, and recommendations concerning the institutionalization of mechanisms designed to prevent the recurrence of similar events, and how to address them.‖ In the discharge of this aspect of its mandate, the Commission has made recommendations in each Chapter, where it found that it was in a position to do so. The Commission is also mindful of article 8 of its mandate, which provides that the work of the Commission does not involve political issues or negotiations.

1687. Article 9 of the Royal Order, which lists specific issues on which the Commission is requested to submit a report, should be read against the above. In particular, article 9 sets out matters related to conduct that, by its very nature, is undertaken by government and public officials. Consequently, most Chapters of this Report, and especially its recommendations, focus on the GoB, the actions that its agencies have taken in the past and the steps that it should take in the future.

1688. The Commission welcomes the measures and remedies undertaken by the GoB, as described in Chapter XI, which address some of the issues raised in connection with the events of February/March 2011. The Commission recommends that those measures and remedies, where appropriate, become part of permanent institutional reforms.

1689. Each Chapter and Section of the Report dealing with specific categories of events concludes with findings as well as specific recommendations pertaining to the subject matter covered therein. This organization should not obscure the fact that the Report is a comprehensive and integrated text that should be read in its entirety. What follows are certain overarching general observations, findings and conclusions, and general recommendations; these should be viewed in connection with the specific findings and conclusions and recommendations contained in each Chapter and Section.

A. General Observations

1690. The events that were the subject of the Commission‘s mandate appear to have been unpredictable. The Government responded in a manner that suggests that it was not prepared for such a situation. It is not the task of the Commission to determine which side is responsible for what outcomes, but in order to understand the evolution of events it is necessary to look at the facts and their underlying causes. In that respect, there is no doubt that what occurred in February/March, and subsequently, was the result of an escalating process in which both the Government and the opposition have their share of responsibility in allowing events to unfold as they did.

1691. A series of events occurred during February/March that affected the progression of the protest movement that began in Bahrain on 14 February 2011. This is covered extensively in Chapter IV on the Narrative of Events and in the Concluding Observations in that Chapter. The forceful confrontation of demonstrators involving the use of lethal force and resort to a heavy deployment of Public Security Forces led to the death of civilians. This caused a marked increase in the number of persons participating in protests and led to a palpable escalation in their demands. As protests continued into mid-March 2011, the general state of security in Bahrain deteriorated considerably. Sectarian clashes were reported in a number of areas, attacks on expatriates took place, violent clashes occurred between students at the University of Bahrain and other educational institutions, and major thoroughfares, including the vital King Faisal Highway, were blocked by protesters. This situation led the GoB to declare a State of National Safety on 15 March 2011.

1692. With the approval of HM King Hamad, HRH the Crown Prince engaged in negotiations with various political parties, especially Al Wefaq, with a view to reaching a peaceful resolution to the unfolding situation in Bahrain. Notwithstanding the best efforts of HRH the Crown Prince, negotiations to reach a political solution were not successful. If HRH the Crown Prince‘s initiative and proposals, at the time, had been accepted, it could have paved the way for significant constitutional, political and socio- economic reforms and precluded the ensuing negative consequences. This was a particularly important initiative bearing in mind that Bahrain is located in an important regional and international strategic location.

1693. The Government believed that the domestic situation reached a point that was threatening the complete breakdown of law and order, the safety of citizens and the stability of the country, all of which impacted upon the economic and social condition of the country. Therefore, on 15 March 2011, HM King Hamad issued Royal Decree No. 18 of 2011 pursuant to which a State of National Safety was declared in Bahrain. The GoB used the BDF and National Guard to assist MoI units in restoring public order. The NSA was also used in arresting prominent members of the political leadership of the protest movement. A substantial number of arrests were made, including of senior political and clerical leadership of opposition and Shia groups. In particular, the security forces carried out the arrests without presenting an arrest warrant or informing the arrested individual of the reasons for arrest. In many cases, the security services of the GoB resorted to the use of unnecessary and excessive force, terror-inspiring behaviour and unnecessary damage to property. The fact that a systematic pattern of behaviour existed indicates that this is how these security forces were trained and were expected to behave.

1694. Many detainees were subjected to torture and other forms of physical and psychological abuse while in custody. This again indicates certain patterns of behaviour by certain government agencies. Not all of the detainees were subjected to all of the techniques of mistreatment. Rather, there was a more discernible pattern of ill-treatment with regard to certain categories of detainees. The extent of this physical and psychological mistreatment is evidence of a deliberate practice, which in some cases was aimed at extracting confessions and statements by duress, while in other cases was intended for the purpose of retribution and punishment. The Commission notes that this systematic practice ceased after 10 June. As of that time no further mistreatment is reported to the Commission to have taken place in prisons. However, mistreatment has been reported as continuing in police stations where persons arrested for localized demonstrations and stone throwing at the police have occurred from July to date.

1695. The Commission received 559 complaints concerning the mistreatment of persons in custody. These complainants included individuals who had been released from detention and individuals who remained in custody at the time of the Commission investigations. All but nine of these complainants were Shia Muslims. Forensic medical experts appointed by the Commission examined 59 of these detainees, and Commission investigators also conducted further interviews with these individuals as well as with their family members and their lawyers. The 59 detainees who underwent a forensic medical examination were selected on the basis of one of the following criteria: (i) the severity of the alleged injuries and the existence of physical marks on the bodies of certain detainees; or (ii) the high profile nature of their case. The 59 selected detainees included the 14 political leaders as well as the SMC doctors who were charged with offences relating to the events of February/March 2011.

1696. The most common techniques for mistreatment used on detainees included the following: blindfolding; handcuffing; enforced standing for prolonged periods; beating; punching; hitting the detainee with rubber hoses (including on the soles of the feet), cables, whips, metal, wooden planks or other objects; electrocution; sleep-deprivation; exposure to extreme temperatures; verbal abuse; threats of rape; and insulting the detainee‘s religious sect (Shia). The MoI opened investigations into cases of alleged torture. However, with the exception of 10831 prosecutions for torture relating to death, no prosecutions ensued.

1697. Many of the detainees who claimed to have been physically mistreated were also subjected to coercion in signing confessions or admitting to accusations of criminal conduct. Consequently, these measures fall within the meaning of torture as defined in the Convention Against Torture (CAT), to which Bahrain is a State Party. They also constitute violations of the Bahrain Criminal Code. These forced confessions have been used in criminal proceedings, either in the special courts established pursuant to the National Safety Decree or, in some cases, in the ordinary criminal courts.

1698. The Commission is of the view that the lack of accountability of officials within the security system in Bahrain has led to a culture of impunity, whereby security officials have few incentives to avoid mistreatment of prisoners or to take action to prevent mistreatment by other officials. The Commission received evidence indicating that, in some cases, judicial and prosecutorial personnel may have implicitly condoned this lack of accountability. In the light of this culture of impunity, the Commission acknowledges the immense courage that was required for the victims of torture and ill-treatment to report their experiences to the Commission.

1699. In many situations, the security forces violated the principles of necessity and proportionality, which are the generally applicable principles in matters relating to the use of force by law enforcement officials. This is evident in both the choice of the weapons that were used by these forces during confrontations with civilians and the manner in which these weapons were used. The security forces did not, at all times, strictly comply with their legal obligation to target the individuals in a manner that would disable or incapacitate the individual. The available evidence, including forensic and ordnance reports, indicates that on a number of occasions the security forces fired their weapons without taking due care to ensure that individuals were not fatally injured.

1700. A large number of individuals were prosecuted before the National Safety Courts and imprisoned for violating articles 165, 168, 169, 179 and 180 of the Bahrain Penal Code in connection with the events of February/March 2011. The textual ambiguity of these provisions and the way that they were applied raises questions about their conformity with international human rights law and with the Constitution of Bahrain. These concerns are explained in this Report and were communicated by the Commission on an earlier occasion to the GoB. On 11 November, the Commission received an official response from the GoB indicating that a number of legislative amendments had been sent from the Government to the Council of Representatives to bring articles 168 and 169 of the Penal Code into conformity with the ICCPR and the Arab Charter.

1701. Numerous violations of due process rights were recorded by the Commission. This was partially due to the absence of a statute identifying the exact powers to be exercised by the Government during a State of National Safety. In addition, it appears that the Military Attorney General chose to rely on those statutory provisions that were the least favourable to the arrested persons and to the defendants appearing before the National Safety Courts. The latter courts were exceptional tribunals consisting of a presiding military judge and two civilian judges. The NSA performed a number of arrests on the basis of arrest warrants issued by the Military Attorney General. The manner in which the GoB interpreted article 5(11) of the National Safety Decree allowed for the indefinite detention of individuals. This does not conform to the Code of Criminal Procedure, which sets specific time limits after which detained individuals must be brought before a judicial authority. Concurrently, the NSA and MoI executed a number of arrests and detentions on the basis of the Code of Criminal Procedure. Thus, two different procedures were applied without distinction as to the grounds or legal reasons for relying on one of those procedures or the other.

1702. The manner in which the security and judicial agencies of the GoB interpreted the National Safety Decree also opened the door for the perpetration of grave violations of human rights, including the arbitrary deprivation of life, torture and arbitrary detention. Detainees were kept for questioning for periods that, in some cases, extended to over two months. They were neither brought before any judicial authorities nor were they presented with any formal charges during this period. Furthermore, the lack of judicial supervision, oversight or inspection of detention facilities operated by these security agencies allowed for the perpetration of human rights violations. Whether the judicial system became overwhelmed by the events of February/ March, or whether it failed to rise to the challenge of the situation as a result of its weaknesses, needs to be determined. In any event, it is clear that the National Safety Decree, as implemented by the Military Attorney General, overtook the national system of justice. A pattern of due process violations occurred at the pre-trial and trial levels that denied most defendants elementary fair trial guarantees.

1703. Thirty-five deaths occurred between 14 February and 15 April 2011 that have been linked to the events of February/March 2011. The deaths of 19 of these civilians have been attributed to Security Forces (MoI, NSA, BDF); the deaths of 2 civilians have been attributed to other civilians; and the deaths of 9 civilians have not been attributed to any specific perpetrator, group or government agency. Five of the thirty-five deaths were members of security forces (MoI, BDF) personnel. The deaths of 3 police officers have been attributed to demonstrators; that of 1 police officer has been attributed to the BDF; and that of 1 BDF officer has not been attributed to specific perpetrators. Thirty-two out of thirty-five death were investigated by the GoB, but the Commission has reservations as to the effectiveness of these investigations which were limited to the personnel of each of the concerned security agencies.

1704. Between 21 March and 15 April 2011, security forces systematically raided houses in order to arrest individuals, and in so doing terrified the occupants. These arrests were performed during the night and in pre-dawn raids by hooded persons, who intentionally broke down doors, forcibly entered and sometimes ransacked the houses. This practice was often accompanied by sectarian insults and verbal abuse. Women and children and other family members frequently witnessed these events. In many of the reported cases, the women were asked to stand in their sleeping clothes, thus humiliating the women and other relatives present, and terrifying the children. The arrested persons were taken blindfolded to places of detention that at the time were unknown to the arrested persons. The pattern of these arrests indicated the existence of an operational plan which involved personnel from three government agencies, the MoI, the NSA and the BDF.

1705. Overall, the total number of persons arrested pursuant to Royal Decree No. 18 of 2011 on the declaration of a State of National Safety was 2,929. Of those, 2,178 were released without charge. The most prevalent charges made against persons brought before National Safety Courts included: participating in and inciting hatred against the regime; illegal assembly; rioting; possessing anti-government leaflets; possessing material calling for the overthrow of the regime; inciting violence; threatening a public official; use of violence against a public official; premeditated murder; kidnapping; attempted murder; aggravated assault; membership in an illegally established society; and spreading rumours that undermine the public interest.

1706. While the GoB concealed or withheld from the detainees and/or their families information about the detained persons‘ whereabouts for periods ranging from days to weeks, the Commission could not find any acts or omissions that establish that enforced disappearance took place during the period under its mandate.

1707. Of the 30 demolished places of worship inspected by the Commission, only five had fully complied with legal and administrative requirements for acquisition of land and obtaining required permits. The others were in violation of Royal Decree Law No. 19 of 2002. The Commission takes note of the explanation and evidence presented by the GoB that the decision to demolish was based on the use of these places for manufacture and storage of weapons, such as Molotov cocktails, and as staging grounds to attack the police, resulting in injuries to tens of police personnel. Nevertheless, the Commission notes with some concern the timing of demolition. The GoB should have realised that under the circumstances, in particular, the timing, the manner in which demolitions were conducted and the fact that these were primarily Shia religious structures, the demolitions would be perceived as a collective punishment and would therefore inflame the tension between the GoB and the Shia population.

1708. During the events of February/March 2011, 2,075 public sector employees and 2,464 private sector employees were dismissed for their support for or participation in strikes during the protests on the grounds that their strikes were unlawful because they were unrelated to labour issues. It appears that the strikes that occurred during February/March 2011 were within the permissible bounds of the law. According to the latest information provided to the Commission by the CSB, of the 2,075 public sector employees who were dismissed, 1,682 were reinstated. The Commission has also been informed that the Ministry of Labour is working to have dismissed private sector employees reinstated following HM King Hamad‘s speech on 28 August 2011.

1709. There were 534 university students expelled, suspended or subjected to disciplinary action during the events of February/March for, among others, participating in the demonstrations. While universities established investigation committees and an appeals procedure in order to discipline students connected to the events, the universities often applied arbitrary and unclear standards for issuing determinations and taking disciplinary action. They largely relied on insufficient or circumstantial evidence, and drew conclusions about alleged student involvement in criminal activity from assumptions and improper inferences. The Commission welcomes the move by the Ministry of Education on 25 August 2011, in conjunction with the University of Bahrain and Bahrain Polytechnic, to reverse the vast majority of disciplinary decisions taken against students. The Commission has been informed that on 27 May 2011, the Ministry of Education reinstated all 97 scholarships that were revoked in February and March 2011. The only disruption suffered by some students was a temporary suspension of their monthly stipend, which was reinstated with retroactive pay when the scholarships were reinstated.

1710. The Commission finds sufficient evidence to support the finding that Sunnis were targeted by some demonstrators, either because they professed loyalty to the regime or on the basis of their sect. Sunnis were subjected to verbal abuse, physical attacks and attacks on their property as well as harassment. Many of these incidents occurred at schools, universities, on the streets, in the workplace and at makeshift checkpoints operated by civilians. The Sunni community was seen as a target due to the perception that all Sunnis are agents or supporters of the GoB and the ruling family. The Commission also finds support for the claim of denial of medical care and intentional negligence of Sunni patients during the events of February/March.

1711. The Commission also finds sufficient evidence to establish that some expatriates, particularly South Asian workers, were the targets of attacks during the events of February/March 2011. Pakistanis, in particular, were targeted owing to the membership or suspected membership of some Pakistanis in the BDF and police force. Various neighbourhoods where expatriates lived in Bahrain were the subject of sporadic violent attacks creating an environment of fear, resulting in many expatriates leaving their homes and living in shelters. Because of this atmosphere of fear some foreign nationals were afraid of returning to work or places of business. The Commission notes that four expatriates were killed and many were injured by mobs as a result of these attacks.

1712. The evidence presented to the Commission in relation to the involvement of the Islamic Republic of Iran in the internal affairs of Bahrain does not establish a discernible link between specific incidents that occurred in Bahrain during February/March 2011 and the Islamic Republic of Iran. Given that most of the claims by the GoB related to allegations of intelligence operations undertaken by Iranian operatives, sources of which by their nature are not publicly available, the Commission has not been able to investigate or independently verify the allegations of Iranian involvement in the events of February/March 2011. In addition, the Commission has not found any evidence of human rights violations committed by the GCC-JSF units deployed in Bahrain starting on 14 March 2011.

1713. Having reviewed a selection of material from national television, radio and print media relating to the events of February/March 2011, the Commission notes that much of this material contained derogatory language and inflammatory coverage of events, and some may have been defamatory. However, the Commission did not find evidence of media coverage that constituted hate speech. The Commission also identified numerous examples of defamation, harassment and, in some cases, incitement through social media websites. Both pro- and anti-government journalists were targeted through social media. The Commission notes that six of the seven daily newspapers are pro-government and the broadcasting service is state- controlled. There is also sufficient evidence to suggest that the GoB exercised censorship over local media outlets. The lack of adequate access to mainstream media creates frustration within opposition groups and results in these groups resorting to other media outlets such as social media. This can have a destabilising effect because social media outlets are both untraceable and unaccountable, even in extreme cases where they promulgate hate speech and incitement to violence.

B. Recommendations

1714. The Commission makes the following general recommendations.

1715. 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.

1716. 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‖.

1717. 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.

1718. To amend the decree establishing the NSA to ensure that the organisation is an intelligence gathering agency without law enforcement and arrest authorities. 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.

1719. 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.

1720. To make subject to review in 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, were not respected be subject to full review in the ordinary courts.

1721. The paragraphs below contain recommendations more specific to particular subject matters mentioned therein. However, there are a number of these recommendations that are also relevant to other issues addressed in other paragraphs.

1722. The Commission makes the following recommendations with regard to the use of force, arrest, treatment of persons in custody, detention and prosecution in connection with the freedom of expression, assembly and association.

a. 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.

b. 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.

c. 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,832 and the

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,833 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.

d. 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 detention 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.

e. 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.

f. 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.

g. There should be audiovisual recording of all official interviews with detained persons.

h. To review convictions and commute sentences of all persons charged with offences involving political expression, not consisting of advocacy of violence, or, as the case may be, to drop outstanding charges against them.

i. 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. 834

j. 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 for the establishment of the National Fund for the Reparation of Victims on 22 September 2011.

k. To compensate and provide remedies for all victims of torture, ill-treatment or prolonged incommunicado detention. In this connection, the Commission welcomes the Royal Decree Law N0. 30 of 2011 for the establishment of the National Fund for the Reparation of Victims on 22 September 2011.

1723.The Commission makes the following recommendations with regard to demolition of religious structures, termination of employees of public and private sectors, dismissal of students and termination of their scholarships.

a. 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.

b. To use all its powers to ensure that public corporations and other employers who dismissed employees for failure to appear for work at the time of the demonstrations treat them in a way that is at least equal to that provided by the GoB to civil servants.

c. To reinstate all students who have not been criminally charged with an act of violence and to put in place a procedure whereby 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.

d. To follow up on the statement by HM King Hamad to the effect that the GoB will consider rebuilding, at its expense, some of the demolished religious structures in accordance with administrative regulations. The Commission welcomes the GoB addressing this question at the earliest possible time.

1724. The Commission makes the following recommendations with regard to media incitement issues.

a.To consider relaxing censorship and allowing the opposition greater access to television broadcasts, radio broadcasts and print media. The continuing failure to provide opposition groups with an adequate voice in the national media risks further polarising the political and ethnic divide.

b. To establish professional standards for the media and other forms of publications that contain an ethical code and an enforcement mechanism, designed to uphold ethical and professional standards in order to avoid incitement to hatred, violence and intolerance, without prejudice to internationally protected rights of freedom of expression.

c. 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, irrespective of whether the source is public or private.

1725. The Commission makes the following recommendations with respect to better understanding and appreciation of human rights including respect for religious and ethnic diversities.

a. 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.

b. In general, 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 population.

 

[Click here to download the full BICI report.]