9 August 2011
Mr. Mohammed Al-Maskati, President
Mr. Nader Al-Salatna, Vice President Bahrain Youth Society for Human
Rights Dear Mr. Al-Maskati, Dear Mr. Al-Salatna
Thank you for your letter of August 6. The BICI sincerely appreciates the cooperation and goodwill shown by you and all other segments of Bahraini society in relation to its work. The BICI will post on its website a statement regarding the nature and method of its work, which addresses the points you and others have raised. The statement is attached. With regard to the points you have raised:
1. The BICI is still at the beginning of its investigations. It has not reached any prejudgments or conclusions. We would like to emphasize that conclusions and recommendations will occur after investigations are completed, and a more complete record is established. Its work continues to be independent and free from any interference, either by the government of Bahrain, any other government, or any interest group, either within or outside of Bahrain. The BICI hires its own staff, conducts its own investigations, has its own budget, and acts in every respect as an independent commission (or as a UN commission would act).
2. In carrying out its responsibilities, the BICI has so far met with a number of government officials, as well as opposition leaders, representatives of civil society organizations, and individual victims and witnesses. It has conducted unscheduled visits to several detention and prison facilities, as well as police stations, and its investigators have spoken to persons detained outside the presence of any public official. It has also reviewed arrest and conviction records and has secured the release of a significant number of those detained with their pending cases dismissed.
3. All of the above has been done in cooperation with individual witnesses and victims, civil society organizations, and the government. The BICI’s chairman has publicly given credit to the Ministry of Interior, the Attorney General, and the Military Prosecutor General for their cooperation, and it is only fair to do so. This should not be interpreted as the BICI covering up, overlooking, or exonerating anyone’s responsibility for any illegal act, and no statements by BICI or any of its members should be construed as such.
4. The BICI wishes to acknowledge with appreciation the hundreds of victims and witnesses who have come forward with their information, and we understand that there are many others who for various reasons do not feel comfortable doing so. The BICI wishes to reassure them and others of the safety and privacy of these communications. We have taken and will continue to take all possible measures to safeguard the confidentiality of all information received, and we sincerely believe that there is no reason for anyone to believe otherwise.
5. One of the main objectives of the BICI is to investigate violations of international criminal law and international human rights law. 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)).
6. Each of these crimes has separate legal elements that need to be established. There are also 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.
7. 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.
Lastly, please know that every Commissioner and staff member of the BICI is a dedicated worker in the field of human rights and international criminal justice. We look forward to the continued cooperation of all parties concerned, and we hope that the heightened level of anxiety that exists in Bahrain society does not carry anyone to any unfounded conclusions or judgments on the BICI and its work. We remain committed to the truth, and to continuing our work on the basis of impartiality, fairness, and neutrality.
M. Cherif Bassiouni
Chair, Bahrain Independent Commission of Inquiry