Saudi Arabia: 72 Issues to Raise During State's Review by the Committee Against Torture
On 27 July 2015, Alkarama provided the United Nations Committee against Torture (CAT) – a body of 10 independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) by its State parties – with a list of 72 issues to be raised by the UN experts with the Saudi authorities during their consideration of Saudi Arabia's second review, which will take place during the CAT's 57th session in 2016. In its submission, Alkarama recalled that Saudi Arabia is a monarchy without a formal Constitution or a criminal code. All State powers are concentrated in the executive, especially in the King. Alkarama is particularly concerned with the numerous cases of torture that it continues to receive, especially in view of the overly repressive and broad counter-terrorism law adopted in January 2014, which has increased the practice of extracting confessions under torture in national security related cases.
After considering NGOs submissions and the State report, the CAT will adopt a List of Issues (LoI) containing the topics that will be addressed during the country's review. "Contributing to the List of Issues is extremely important to us because it is an opportunity to hold States accountable on their obligation to ensure that torture is not committed on their territory," said Radidja Nemar, Regional Legal Officer for the Gulf at Alkarama. "Civil society organisations can use this process to share their concerns about their State's policies and practices with the UN experts who, in turn, ask the State to address these concerns."
Definition and incrimination of torture
Saudi legislation does not define torture in accordance with UNCAT, Article 1*. The only legislative provision prohibiting torture states that "an arrested person shall not be subjected to any bodily or moral harm. Similarly, he shall not be subjected to any torture or degrading treatment." This is insufficient to criminalise torture, as it neither defines torture, nor prescribes the punishment applicable for the offence or provides for the different modes of participation (complicity, instigation, order) in the crime. As a consequence, Alkarama asked the State party what steps it was going to take to adopt a definition of torture compliant with UNCAT, Art.1; to criminalise torture and provide for appropriate punishment; and to include the different modes of participation in its national law.
Torture in detention
Over the past 10 years, Alkarama received hundreds of cases of arbitrary arrests and detention followed by torture carried out by the General Intelligence forces ("Al Mabahith"), which are responsible for investigating "security related" crimes. Detainees are arrested by the Mabahith without a warrant and then taken to unknown places where they are held in solitary confinement and incommunicado often for long periods, during which they are subjected to torture. In view of these cases, Alkarama asked Saudi Arabia "what are the measures taken to prevent torture committed by the "Mabahith" (General Intelligence) forces?"
Alkarama is also concerned with the use of corporal punishment both as a sanction following an unfair trial and as a disciplinary method in prison. Floggings have been pronounced as sanctions for individuals tried for exercising their right to freedom of expression, such as Saudi blogger Raif Badawi, who was sentenced to 10 years imprisonment and 1,000 lashes for "insulting Islam through electronic channels". Testimonies of detainees and videos leaked from prisons show that the practice is also used to enforce discipline and punish inmates in ways that clearly fall outside the scope of legal corporal punishment. Considering these cases, Alkarama asked the State Party "how are such measures considered in line with the State party's obligations under the Convention?"
Prevention and accountability
In its national report to the Committee against Torture (CAT), Saudi Arabia mentions numerous changes in its domestic legislation aiming at preventing torture, and states that all acts of torture must be investigated. Alkarama, however, found that these changes do not address the issue of the lack of accountability of State officials for torture, and the lack of independence of judges. Alkarama also noted in its submission to the CAT that the State party does not explain what "steps are taken by the authorities to ensure that investigation and criminal prosecution are systematically carried out," and pointed to the fact that according to the State party's report. "military personnel can only be subjected to disciplinary measure if he is found guilty of committing acts of torture during his service." Alkarama therefore demanded Saudi Arabia to "explain the legal basis to prosecute members of the General Intelligence and members of the military who commit [such] acts."
Absolute prohibition and counter-terrorism
As explained by Alkarama in its submission, "absolute prohibition means that no exceptional circumstances whatsoever may be invoked by the State party to justify acts of torture in any territory under its jurisdiction." In this regard, Alkarama is concerned that instead of providing for the non-derogability of the prohibition of torture, Saudi Basic Law actually states that: "No provision of this Law whatsoever may be suspended except on a temporary basis, such as in wartime or during the declaration of a state of emergency." As a consequence, Alkarama requested the State Party to explain "how it implements the principle of non-derogability of jus cogens norms such as the prohibition of torture, cruel, inhumane and degrading treatment."
Alkarama is also deeply concerned over the new law on terrorism enacted in January 2014, which defines terrorism in vague terms, making it possible to criminalise free expression. It also violates fair trial and fundamental guarantees by raising both the legal limit of pre-trial detentions and the time officials may hold a suspect incommunicado and in solitary confinement, making individuals accused under this law extremely vulnerable to torture.
Statements made under torture
It must also be highlighted that Saudi law does not clearly prohibit the use of statements obtained under torture in court. Moreover, as noted by Alkarama in its list of 72 issues submitted to the CAT, the State Party's "legal system places undue importance on confessions as the sole evidence in prosecutions, despite numerous reported cases of torture in order to obtain such confessions." As a consequence, Alkarama asked if Saudi Arabia was planning "to integrate expressly the inadmissibility of evidence that was obtained under torture" into its domestic law.
Civil Society and fight against torture
Lastly, Saudi Arabia cited the National Society for Human Rights as an independent civil society organisation, which monitors human rights violations such as torture and takes action within domestic legal framework. But the recent repression of the Saudi Civil and Political Rights Association (ACPRA) – an independent local civil society organisation referring cases of torture to domestic and international mechanisms – shows a different picture of civil society involvement in the prevention of torture. Nearly all members of ACPRA have been prosecuted and punished with heavy prison sentences for documenting cases of torture committed by the authorities. Such retaliatory measures pose a direct threat to Saudi international obligations under the Convention against Torture. Alkarama therefore asked the State Party to comment on the repression of civil society actors working to document cases of torture, as well as to explain what steps it is willing to take to put an end to these violations. Such steps should include the release of ACPRA members and other lawyers, such as Waleed Abu Al Khair and activists who have been imprisoned merely for ensuring that acts of torture are not left unnoticed and unpunished.
What is next?
After the Committee against Torture (CAT) adopts its list of issues in November/December 2015, Saudi Arabia is to provide its response in writing before its review in April/May 2016, during which the State Party's implementation of the UN Convention against Torture (UNCAT) in the country will be assessed. Alkarama will be contributing to the review by submitting an alternative report and meeting with the Committee's experts to brief them on its key concerns.
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*UNCAT, Art. 1: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.