INTRODUCTION
In February 2011, mass pro-democracy demonstrations swept across Bahrain. Tens of thousands of protesters marched on the streets of cities and towns to protest against the Al-Khalifa ruling family’s autocratic regime. The government’s establishment of the Bahrain Independent Commission of Inquiry (BICI), which was tasked with investigating human rights violations committed by police and security forces in the context of the demonstrations, seemed to represent a positive step towards the creation of a more just and democratic system.
However, since 2011, the political and human rights situation in Bahrain has not improved – to the contrary, it has worsened. In fact, the Government of Bahrain has intensified its repressive measures and the space for freedom of expression and association has shrunk even further, with opposition parties being outlawed, and independent media outlets shut down. In addition, Bahraini authorities have continued to silence dissent by arbitrarily arresting thousands of peaceful protesters, activists, bloggers, lawyers, journalists, human rights defenders, and religious figures. Detainees are frequently subjected to excessive periods of pretrial detention, where they suffer severe forms of ill-treatment such as beatings, rape, torture, solitary confinement, medical negligence, verbal abuse, and religious discrimination. Torture is used systematically to extract confessions which are used to convict individuals in unfair trials, while investigations into allegations of torture and ill-treatment are rarely undertaken.
While thousands of individuals have fallen victim to Bahrain’s system of repression, total impunity reigns among the country’s authorities. As a State Party to the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN-CAT), Bahrain has the duty to investigate cases of torture and ill-treatment and hold perpetrators accountable. Moreover, the country’s constitution prohibits the use of torture and stipulates life imprisonment for those who commit it, causing death. Nevertheless, Bahraini authorities have continuously failed to comply with their domestic and international commitments. Despite thousands of torture cases, conviction rates have been low with light prison sentences, even in cases when torture led to death. Further, although Bahrain’s record of political repression and human rights violations has been extensively documented, no high-ranking official has ever been held accountable. Thus, impunity in Bahrain seems to be the norm. The government has not taken any meaningful steps to end either torture or impunity. There is no genuine intention to stop abuses committed against detainees, who are being punished for exercising their fundamental rights to freedom of expression and association, guaranteed by all international human rights conventions and by the Bahraini constitution itself.
The main representation of Bahrain’s culture of impunity is the head of its Ministry of Interior (hereinafter MOI), Rashid bin Abdullah al-Khalifa. He has been in office since 2004, despite the myriad of accusations of human rights abuses committed by security officials that have emerged at least since 2011. The systematic nature of abuses committed under his leadership lead to the conclusion that a tacit policy of repression is actively endorsed by the Ministry of Interior. He is, therefore, the first person responsible for the ongoing human rights violations carried out by officials under his command and for their related impunity.
In this regard, in 2021 the UN Working Group on Arbitrary Detention stated in a report on Bahrain that “widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity”. For at least a decade, potential crimes against humanity have been perpetrated by Bahraini police and security forces under the tacit approval of the MOI. The Minister’s lack of action to stop these abuses unmistakably reflects his implication therein. Accordingly, ECDHR firmly asserts that Rashid bin Abdullah al-Khalifa should be held accountable and sanctioned under the EU Global Sanctions Regime and the Global Magnitsky Act, which are instruments designed to punish foreign officials implicated in gross human rights violations and crimes against humanity.
THE 2011 UPRISING AND ITS AFTERMATH
The 2011 Bahraini uprising, also known as the 14 February uprising or the Pearl Roundabout uprising, was a series of anti-government protests led by the Shia and Sunni Bahraini opposition. The protests lasted from 14 February 2011 to 18 March 2011 and continued on an occasional basis until 2014. Explaining this revolt solely by the unrest of the 2011 Arab Spring and protests in Tunisia and Egypt would mask the root causes of its outbreak and the systemic human rights issues in Bahrain. In fact, these can be traced back further in the past, as the Bahraini people have been calling for broader social, economic, and political rights since the twentieth century. Furthermore, al-Khalifa’s monarchy, which has been in power since the Bani Utbah invasion in 1783, has always been challenged by well-organized political opposition movements, mass demonstrations, riots, and uprisings.
The 2011 uprising itself came 10 years after the 2001 referendum in which citizens voted overwhelmingly for the National Action Charter. The latter promised key democratic reforms, including a popularly elected National Assembly. Despite these promises, the Bahraini government slid back to authoritarianism. Starting in January 2011, Bahraini people were organizing protests through social media, online forums, and emails which called for major pro-democracy protests. When they took the streets in February 2011, they protested against the ruling Al-Khalifa family’s tight grip on power, the discrimination against the country’s majority Shia population, and the arrests of political critics. The beginning date of February 14th has a symbolic value for the Bahraini people because they agreed on the same demands and the revolution remained peaceful. They managed to unite, with human rights organizations and opposition parties like the Haq Movement, against the ruling power.
Nevertheless, the 2011 uprising in Bahrain was also synonymous with a bloody crackdown. In fact, the security forces, with the help of Saudi troops, repressed the pro-democracy movement. Human rights defenders like Abdulhadi al-Khawaja and Hassan Mushaima were sentenced to life in prison. The latter was charged with “attempting to overthrow the government”. They represent only a tiny fraction of the thousands of protesters who were detained by security forces for peacefully exercising their rights to free speech, assembly, and organization. During their detention, a major part of the protesters was tortured with the aim of obtaining forced confessions to be used as evidence against them in courts.
In the aftermath of the revolution, the Government of Bahrain faced growing international pressure to address the mass abuses committed in 2011. As a result, the government set up the Bahrain Independent Commission of Inquiry (BICI), composed of internationally recognized jurists and legal scholars, to investigate government abuses and advise on legal and policy changes to prevent their recurrence.
In November 2011, the BICI commission issued a 500-page report on the government’s response to the pro-democracy protests, which found that Bahraini officials “resorted to the use of unnecessary and excessive force, terror-inspiring behavior and unnecessary damage to property”. Moreover, it highlighted that various forms of abuse, amounting to torture and death, took place and that the systematic pattern with which violence occurred indicated that “this is how these security forces were trained and were expected to behave”.
The report affirmed that the MOI, under the leadership of Minister Rashid bin Abdullah Al Khalifa, used force in an “unnecessary, disproportionate, and indiscriminate” manner. On several occasions, the choice of weapons made by MOI’s forces, and how they were used, were not compatible with the nature and scale of the protests. This relates to the use of shotguns, tear gas, and rubber bullets, and the misconduct of security forces at checkpoints against protesters. Also, BICI’s findings indicated that the MOI had failed to provide detainees with arrest and house search warrants and guarantee due process, violating international and Bahraini law. Additionally, the BICI concluded that, at the time of the report, out of the more than 500 complaints they had received regarding the ill-treatment of detainees in custody, the Ministry of Interior issued only 10 prosecutions concerning death cases. Such complaints included accounts of beatings, electrocution, and sleep deprivation, torture to obtain confessions, and other forms of physical, sexual, and verbal abuse. The Commission characterized these practices as “systematic” and “a deliberate practice of mistreatment”.
Based on its findings, the BICI offered 26 recommendations to the Government of Bahrain that, if addressed, could have offered a path to meaningful reforms. These were formally accepted by King Hamad and praised by the international community. Among these recommendations, the BICI highlighted the “pattern of impunity for torture and mistreatment”, suggesting that “the appropriate prosecution should be initiated with a view to ensuring punishment consistent with the gravity of the offense”.
Since 2011, the Government of Bahrain has repeatedly stated that the majority of the recommendations had been implemented. In May 2016, the Bahraini government announced the full implementation of all BICI recommendations and the national media quoted Professor Bassiouni, the chairperson of the BICI commission, applauding the Government of Bahrain for this. However, Professor Bassiouni later stated he had been wrongfully cited and countered the government’s statements. Similarly, in 2013, a US State Department report, analyzing the Bahraini government’s implementation of the BICI recommendations, found that the vast majority of the 26 BICI recommendations had not been implemented. Furthermore, a 2015 report by independent human rights organizations showed that the government had failed to fully address many of the recommendations issued by the Commission.
Although the establishment of the BICI offered hope for Bahrain to peacefully reform the country, these hopes were short-lived. As highlighted by human rights organizations, the US State Department reports and the UN Special Rapporteurs, Bahrain maintains a regime with autocratic tendencies in which the Ministry of Interior, headed by Minister Rashid Al Khalifa, effectively controls allegedly independent institutions like the NIHR, preventing independent and impartial investigations and prosecution of human rights violators, allowing a culture of impunity to thrive and fostering an entrenched belief that Bahraini authorities, including himself, are above the law.
THE CONTINUATION OF VIOLATIONS
Since the beginning of the 2011 uprising, the Bahraini government chose the use of force to end the demonstrations, consequently killing many protesters and human rights defenders. To this day, several reports have documented hundreds of cases of torture, ill-treatment, extrajudicial executions and death sentences. Many of these trials and appeal courts dismissed credible allegations of torture during interrogation, along with the failure of fundamental fair trial and due process rights.
In the context of a mass trial involving 58 people in 2018, two Shia activists, Ali al-Arab and Ahmad al-Malali, were arrested by security agents of the Ministry of Interior, convicted on terror charges by the Criminal Investigations Directorate (CID) and sentenced to death in absentia based on confessions extracted under duress. Members of the European Parliament, as well as international organizations like Amnesty International, Human Rights Watch, the Bahrain Institute for Rights and Democracy (BIRD), and American for Democracy & Human Rights in Bahrain (ADHRB), all called on the government to urgently halt the imminent execution of the two men. On July 26th, 2019, the United Nations Special Rapporteur on extrajudicial killings Agnes Callamard, also appealed to the government to stop the executions. Despite all of this, however, the two men were executed by a firing squad, along with a third individual from Bangladesh – which happened to be the first executions after a two-year moratorium. Indeed, the executions of Abbas al-Samea, Ali al-Singace, and Sami Mushaima in 2017, marred by allegations of torture and due process violations, broke a seven-year de facto moratorium on capital punishment. In response to the executions, protests took place in Manama, leading to another death. Mohammed al-Miqdad, 21 years old, passed away, reportedly from gas inhalation due to targeted tear gas by the police. The Bahraini Interior Ministry stated that the death was caused naturally according to a medical report and that there was no criminal suspicion. Nevertheless, documented cases showed that many protesters died after being subjected to excessive exposure to tear gas, the health consequences being still undetermined.
Despite Bahrain’s claim that the death penalty solely applies for extremely serious crimes, as of June 2022, there are still at least 26 individuals at imminent risk of execution, 12 of which have been sentenced on political matters and 3 on drug-related charges. Among these individuals on death row, eight declared having been tortured into confessing.
Leading up to the executions, prisoners face torture amid unfair trials. Beyond the physical and short-term damage, torture has also long-term psychological consequences on victims’ lives. The systemic use of torture in Bahrain leaves hundreds of individuals to live in fear and hopelessness, suffering physically and psychologically from violent treatments and without receiving any form of justice or support. Moreover, it enhances the culture of impunity that prevails within the Bahraini government. Minister of Interior Rashid bin Abdullah Al Khalifa is one of the main officials responsible for the ongoing political repression and human rights violations happening in the Kingdom. Such concerns have been expressed by several British MPs in a resolution calling for the application of sanctions against the Minister to address the culture of impunity he represents in Bahrain. Furthermore, in light of the numerous reports of arbitrary arrests as well as acts of torture and other mistreatment perpetrated against detainees, the United Nations Working Group on Arbitrary Detention warned the Government of Bahrain that these gruesome violations, committed under the supervision, approval, and sometimes even in the presence of the Minister of Interior, amount to crimes against humanity.
LEGAL ANALYSIS: A SUPERIOR RESPONSIBILITY CASE FOR BAHRAIN’S MINISTER OF INTERIOR
The Ministry of Interior has been playing a crucial role in the mission of repressing dissent launched by the Bahraini monarchy. Reports from independent human rights organisations have been documenting thousands of cases of human rights violations attributable to Ministry of Interior Agencies, including arbitrary arrests, torture, rape and extrajudicial killings. These actions clearly reveal a “pattern of police brutality and repression at every command level of the MOI”, a repetitive cycle of abuse that continues to this day and a gruesome practice that has been enshrined in the law enforcement’s unwritten protocol. These violations constitute a de facto policy supported from the ministerial level and ultimately authorized by Sheik bin Abdullah al Khalifa.
The first phase of abuse starts at the lower level of the MOI – namely, riot police, officers in civilian clothing, and Criminal Investigation officers who are in charge of arresting targeted individuals for their political or social activities – and consists of warrantless raids causing destruction of the individual’s property and confiscation of his belongings, physical abuse, including but not limited to: kicking, beating, and blindfolding, as well as verbal abuse, such as insults, ridicule, and threats addressed to the individual and/or members of his family.
Detainees are usually transferred to the investigation center, where phase two of the abuse starts, which is conducted by the investigating officers. Here, detainees are physically and psychologically tortured in various ways, enduring, for example: kicking, slapping, beatings with batons and pipes, suspension, being exposed to extremely hot or cold temperatures, sleep deprivation, forced standing, burning, electric shocks, sexual assault, death threats and threats of further torture addressed to them or other members of their family, prolonged solitary confinement, insults, or other degrading and humiliating treatments.
Torture and inhumane treatments do not end after imprisonment, but are a tool at the disposal of the prison authorities to silence the individuals demanding the respect of their basic rights as prisoners, or as a form of reprisal, in which case it is often coupled with isolation, enforced disappearance, and medical negligence.
All of these law enforcement officials work under the authority and supervision of the Minister of Interior, Rashid bin Abdullah al Khalifa.
Who is to blame?
The King’s acceptance of the BICI conclusions and recommendations led to legal and institutional reform, particularly, the establishment of several governmental human rights bodies and amending the mandates of others: the Special Investigation Unit (SIU), the Prisoners and Detainees Rights Commission (PDRC), the Office of the Ombudsman at the Ministry of the Interior (MOI Ombudsman), and the National Institution for Human Rights (NIHR).
While the measure was welcomed, these oversight bodies have perpetually demonstrated their inability to hold perpetrators of abuse accountable.
The SIU, established in 2012 specifically to hold government officials accountable for crimes of torture and ill-treatment, has failed to practice independence and effectiveness. This unit operates under the Public Prosecutor’s Office, who has been complicit in torture by accepting coerced confessions during interrogations and condoning allegations of torture. In addition, until 2022, what is now the PPO was under the direct supervision of the MOI.
Bahrain’s Ministry of Interior (MOI) Ombudsman’s annual reports reveal an extremely low number of reported human rights abuse violations by MOI officials referred for serious prosecution. The Ombudsman’s office proved to be unresponsive or ineffective in addressing prisoners’ complaints of insufficient medical care. Its independence is questionable, as it is administratively and financially dependent on the MOI, its employees being appointed upon the approval of the Minister of Interior.
The Prisoners and Detainees Rights Commission (PDRC), created in 2013, functions as a National Preventive Mechanism (NPM) and is empowered to verify the conditions of inmates and the treatment they receive. Similarly, its independence, transparency, and effectiveness have been called into question due to its administrative and financial dependency on the MOI Ombudsman.
All of these oversight bodies have failed to exercise their mandates independently and effectively, particularly with respect to the principle of “superior responsibility.”
The top of the “chain of command” – when superiority is mistaken for omnipotence
The principle of the “Legal Chain of Command” is the legal doctrine whereby military or civil commanders can be criminally liable under Superior Responsibility or hierarchical accountability. This principle has been developed through international criminal jurisprudence, codified in Additional Protocol I, and is now arguably considered to form part of international customary law. As opposed to individual criminal responsibility, superior responsibility arises where a superior failed to prevent or punish the commission of a crime by one of his subordinates.
It is generally agreed that Superior Responsibility is established under three conditions. First, there has to be a superior/subordinate relationship. A superior-subordinate relationship is characterized by a hierarchical relationship between the superior and subordinate. This relationship can exist when the position of authority is de jure, meaning that a person has been recognized the formal authority to command and control subordinates, but also when the position of authority is de facto, which implies a superior-subordinate relationship that has yet to be formalized or determined by a formal status alone. As for the hierarchical nature of the relationship between the Minister Rashid bin Abdullah al Khalifa and police officers, riot police and investigating officers responsible for the torture and mistreatment of individuals, it is clear that his position of authority is de jure and the condition is fully observed.
The second mandatory condition for the application of the principle, is that the superior knew or had reason to know that one or several subordinates committed or were about to commit criminal acts. The superior need not necessarily know the exact identity of his subordinates who perpetrate crimes, it can be sufficient to identify them at least by reference to their “category” (or their official position) as a group. On the one hand, all of the oversight bodies mentioned above received and examined a large number of complaints against members of law enforcement subordinated to the Minister of Interior, bodies that are also administratively and financially dependent on the Ministry of Interior led by Rashid bin Abdullah al Khalifa. On the other hand, independent human rights groups have documented testimonies from political prisoners and human rights defenders that confirmed Minister Rashid bin Abdullah al Khalifa’s participation in and supervision of various human rights violations, including their torture in his prisons, as well as testimonies indicating him as the person in charge of the interrogation and torture. Since there is evidence that he not only had reason to have knowledge of the abuses perpetrated by his subordinates, but actually supervised the abuses and was directly implicated in such acts, it is certain that the second condition is also observed.
The third condition required for the application of the principle provides that the superior failed to take the necessary and reasonable measures to prevent or punish the commission of said acts. The testimonies mentioned above are a clear indicator of the fact that abuses have continued unabated. The failure of the Minister to reduce or eliminate instances of torture in the decade following the Bahrain Independent Commission of Inquiry (BICI) shows that the MOI did not take any measures to prevent or punish acts of torture. Another argument in favor of the observance of this condition is the lack of effectiveness of the MOI Ombudsman, that was created to ensure that the Ministry’s personnel abide by the legal procedures and hold violators accountable. Notwithstanding, the Ombudsman remains a body that works under the supervision of the MOI, and its employees are appointed upon the approval of the Minister of Interior. This situation, in the end, creates a clear culture of impunity of Bahraini officials. In fact, the MOI can use its power to preempt the Ombudsman from investigating cases that the MOI considers problematic for its reputation, which may also be the reason why there is such a low number of complaints referred for prosecution.
Considering the arguments presented above, we can firmly conclude that all of the three conditions required for the application of the principle of superior responsibility are observed, and the Minister of Interior, who has authority over all police officers as well as most security officials including riot police, criminal investigations department, and prison administration members accused in thousands of complaints of human rights violations since 2011, was fully aware of all these issues and needs to be held accountable for each and every one of them.
CONCLUSION
Despite global outcry, Bahrain’s culture of impunity is a reality in Bahrain. The Minister of Interior, Rashid bin Abdullah al-Khalifa, bears significant responsibility for the ongoing political repression and systematic human rights violations in Bahrain. Multiple reports of arbitrary arrests, torture, and mistreatment of detainees have been committed under his supervision, approval, and sometimes even presence, amount to crimes against humanity according to the United Nations Working Group on Arbitrary Detention. In this light, British MPs have also called for sanctions against him due to his representation of the culture of impunity in Bahrain. Likewise, BICI found excessive use of force by police during protests and recommended investigating torture and extrajudicial killings, but only low-ranking officials were punished. Bahrain continues to ignore the BICI’s recommendations, with opposition parties banned, independent media silenced, and peaceful protesters arbitrarily arrested. It is time to acknowledge the chain of responsibility that runs from the highest levels of the Bahraini Government down to those who commit human rights abuses. By taking immediate action to end this cycle of impunity through the application of the EU Global Human Rights Sanctions Regime, which targets individuals and bodies responsible for, or involved in, gross violations or abuses of human rights, as well as individuals and bodies associated with them, such as crimes of torture and other cruel, inhuman or degrading treatment or punishment, there will be justice to the victims of these atrocities.