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Cablegate: Amine Mohammad Al-Bakry, Detainee - #40 in Geneva 2006

R 041431Z JUN 07
FM USMISSION GENEVA
TO SECSTATE WASHDC 4268
USMISSION USUN NEW YORK

UNCLAS GENEVA 001418


STATE FOR IO-RHS, DRL-MLA, L-HRR

E.O. 12958: N/A
TAGS: PHUM UNHRC
SUBJECT: Amine Mohammad Al-Bakry, detainee - #40 in Geneva 2006
Communications Log

1. Mission has received a communication from Leila Zerrougui,
Chairperson-Rapporteur for the Working Group on Arbitrary Detention
regarding the case of Amine Mohammad Al-Bakry, a Yemeni citizen,
detained at the US Air Force Base of Baghram, Afghanistan. Letter
dated 11 December 2006 referenced in the communication was
transmitted to the Department by Geneva 03120 dated 12/14/2006.

This communication has been sent via e-mail to IO-RHS and is number
40 on the Geneva 2006 Communications Log.

2. Begin text of letter:
Dear Mr. Ambassador,
The Commission on Human Rights, by its resolution 2003/31 entitled
"Question of arbitrary detention", decided to renew, for a
three-year period, the mandate of the Working Group on Arbitrary
Detention and invited the Working Group in discharging its mandate,
to continue to seek and gather information from Governments and
intergovernmental and nongovernmental organizations, as well as from
the individuals concerned, their families or their legal
representatives. The Human Rights Council assumed the mandate by its
decision 1/102 of 30 June 2006.

I wish to refer to the letter dated 11 December 2006 addressed to
you concerning a case of alleged arbitrary detention which was
reported to have occurred in the United States Air Force Base of
Baghram, Afghanistan.

The Working Group decided, taking into consideration all the
pertinent information at its disposal to adopt, on 11 May 2007, its
Opinion No. 11/2007 (Afghanistan and United States of America) (copy
attached). This Opinion will be reproduced in the report which the
Working Group will present to the Human Rights Council.
Accept, dear Mr. Ambassador, the assurances of my highest
consideration.
Leila Zerrougui, Chairperson-Rapporteur, Working Group on Arbitrary
Detention.
End text of letter.

Begin text of attachment.
OPINION No. 11/2007 (Afghanistan and United States of America)

Communication addressed to the Government on 11 December 2006

Concerning: Mr. Amine Mohammad AI-Bakry

The States are Parties to the International Covenant on Civil and
Political Rights

1. The Working Group on Arbitrary Detention was established by
resolution 1991/42 of the Commission on Human Rights. The mandate of
the Working Group was clarified by resolution 1997/50, and extended
by resolution 2003/31. It was assumed by the Human Rights Council
through its decision 1/102 of 30 June 2006, Acting in accordance
with its methods of work, the Working Group forwarded the
above-mentioned communication to the two Governments concerned.

2 The Working Group regrets that neither the Government of
Afghanistan nor the Government of the United States of America have
replied.

3. The Working Group regards deprivation of liberty as arbitrary in
the following cases:

I. When it manifestly cannot be justified on any legal basis (such
as continued detention after the sentence has been served or despite
an applicable amnesty act (category I);

II. When the deprivation of liberty is the result of a judgment or
sentence for the exercise of the rights and freedoms proclaimed hi
articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration
of Human Rights and also, in respect of States parties, in articles
12,18,19,21,22,25,26 and 27 of the International Covenant on Civil
and Political Rights (category II);

III. When the complete or partial non-observance of the
international standards relating to a fair trial set forth in the
Universal Declaration of Human Rights and in the relevant
international instruments accepted by the States concerned is of
such gravity as to confer on the deprivation of liberty,or whatever
kind, an arbitrary character (category III).

4. According to the source, Mr. Amine Mohammad Al-Bakry, born on 29
December 1968, of Yemeni nationality, residing at Old Airport Road
in the city of Al Medinah, Saudi Arabia, is the director of a
private company specialized in the import and export of diamonds and
precious stones, The company is owned by Mr. Djamel Ahmed Khalifa,
husband of a sister of Osama ben Laden.

5. The source reports that Mr. Al-Bakry was abducted on 28 December
2002 in Thailand, during a business trip to Bangkok, allegedly by
agents of the intelligence services of the United States or of
Thailand. During the whole year 2003, his whereabouts were unknown.
The Thai authorities confirmed to Mr. Al-Bakry's relatives that he
had entered Thailand's territory but denied knowing his whereabouts.
In January 2004, Mr. Al-Bakry's relatives received a letter from him
through the International Committee of the Red Cross (ICRC), informing
them that he was kept in detention at the United States Air Force Base
of Baghram near Kabul, Afghanistan.

6. The source states that Mr. Al-Bakry was detained due to his
commercial connections with Mr. Khalifa. Mr. Khalifa himself was
arrested in San Francisco, United States of America, and, after four
months in detention, expelled to Jordan. In Jordan he was detained
during two months without charges or trial. He is back in Saudi
Arabia in freedom. The source considers that Mr. Khalifa was
detained due to his family connection with Osama ben Laden.

7. The source alleges that Mr. Al-Bakry has been detained for (at
the time of submission of the communication) more than 41 months in
the military base of Baghram without any charge laid against him. No
trial date has been set. Furthermore, he has been refused access to
defense lawyers and the only visits he may receive are those from
representatives of the ICRC. Mr. Al-Bakry is not able to challenge
the lawfulness of his detention or to appear before a competent,
independent and impartial judicial authority.

8. According to the source, States are obliged to apply the norms of
the International Covenant on Civil and Political Rights to all
persons under their jurisdiction. The International Covenant thus
applies in all territories under the effective control of the Afghan
and the US Governments and to all persons under their jurisdiction.
The United States has not temporarily derogated from of its
obligations under the International Covenant on Civil and Political
Rights in conformity with Article 4 of the Covenant and with General
Comment No. 31 (2004) of the Human Rights Committee (CCPR/C/2l/Rcv.
l/Add.13, para.10).

9. The source argues that Mr. Al-Bakry has been denied the right to
a fair trial recognized by Articles 105 and 106 of the Third Geneva
Convention and Article 75 of its Additional Protocol I. Both
Governments deny prisoner of war status to the persons detained at
Baghram military base. Consequently, international human rights law
should be applied. The source adds that the right to a fair trial is
inalienable and constitutes a guarantee necessary to the effective
enjoyment of all human rights and the preservation of legality in a
democratic society.

II.
10. The Working Group would have welcomed the cooperation of the two
Governments concerned. In the absence of any reply from them, the
Working Group considers that the allegations of the source have not
been disputed.

III.
11. The Working Group notes that Mr. Al-Bakry was deprived of his
freedom in Thailand. There is no indication that the circumstances
under which he was arrested in any way involved an armed conflict
which could trigger the applicability of international humanitarian
law. In this context, the Working Group recalls that it has
previously noted "that the global struggle against international
terrorism does not, as such, constitute an aimed conflict for the
purposes of the applicability of international humanitarian law"
(footnote 1). As stated also by the International Committee of the
Red Cross: "When armed violence is used outside the context of an
armed conflict in the legal sense or when a person suspected of
terrorist activities is not detained in connection with any armed
conflict, humanitarian law does not apply. Instead, domestic laws,
as well as international criminal law and human rights govern, [...]
The designation 'global war on terror' does not extend the
applicability of humanitarian law to all events included in this
notion, but only to those which involve armed conflict." (footnote
2). The rules of international law governing Mr. Al-Bakry's
detention are therefore to be found in international human rights
law, in particular in the International Covenant on Civil and
Political Rights, to which both the United States of America and
Afghanistan are parties (as well as, it might be added, Thailand).

12. Article 9 of the Covenant provides in paragraph 1 that
"[e]veryone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law." Paragraph 4 of
Article 9 enshrines the right to judicial review of the legality of
detention. It reads: "Anyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention
is not lawful."

13. Mr. Al-Bakry was secretly arrested by unidentified agents
probably belonging to United States information services, or to
their Thai counterparts acting on instructions from the US services,
in Bangkok, where - according to the undisputed account of the
source - he was carrying out his habitual business. Nobody, not even
his close family, was informed of this detention.

Footnote 1: Situation of detainees at Guantanamo Bay, Report of the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention,
Leila Zerrougui; the Special Rapporteur on the independence of
judges and lawyers, Leandro Despouy; the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or
punishment, Manfred Nowak; the Special Rapporteur on freedom of
religion or belief, Asma Jahangir; and the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable
standard of physical and mental health, Paul Hunt, E/CN.4/2006/120,
paragraph 9 and note 20.

Footnote 2: Official Statement of the International Committee of the
Red Cross (ICRC) dated 21 July 2005 regarding "The relevance of IHL
in the context of terrorism" (available at http://www.icrc.org
/web/eng/siteeng0.nsf/html/
terrorism-ihl-210705?OpenDocumemt)

In January 2004, his family learned - only through the International
Committee of the Red Cross - that he has been detained since a date
unknown at the Baghram US Airbase in Afghanistan. Except for ICRC
visits and the possibility to transmit letters through them, he is
held there completely incommunicado. He has not been informed of any
charges raised against him. He has not had any possibility to
challenge the lawfulness of his situation before a judicial
authority, as Article 9(4) ICCPR requires for all cases of
detention, whether criminal charges are raised in judicial
proceedings or detention remains administrative. No lawyer has been
able to visit him. Accordingly, the deprivation of liberty suffered
by Mr. Al-Bakry since December 2002, i.e. for the last
four-and-a-half years, is in violation of Article 9 ICCPR,
paragraphs 1 and 4, which are the applicable provisions of
international law, and constitutes a very serious form of "arbitrary
detention" and an extremely grave violation of his human rights.

14. This arbitrary detention is directly perpetrated by the United
States of America, who are therefore responsible for it. The Working
Group notes, however, that at least since January 2004 Mr. Al-Bakry
has been detained on Afghan soil. All the information in the public
domain and available to the Working Group indicates that the
Government of Afghanistan is well aware of the fact that the United
States Government is holding detainees in situations such as Mr.
Al-Bakry's at Baghram Air Base, a military base the US runs with the
consent of the Government of Afghanistan since the end of the
international armed conflict at the end of the year 2001. The
Government of Afghanistan has not informed the Working Group of any
measures taken to address this matter. The Working Group recalls
that under Article 2 of the Covenant, each State Party assumes not
only the obligation not to actively engage in violations, but also
"... to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the present
Covenant"(Footnote 3). This obligation is incompatible with the
acceptance of situations of year-long arbitrary detention of
individuals on one's territory by a foreign power. The Working Group
can therefore only conclude that Afghanistan also bears
responsibility for the arbitrary detention of Mr. Al-Bakry.

(Footnote 3) The Working Group recalls that the Human Rights
Committee has clarified that "States Parties are required by article
2, paragraph 1, to respect and to ensure the Covenant rights to all
persons who may be within their territory and to all persons subject
to their jurisdiction." (General Comment No. 31, CCPR/C/2 I/Rev. 1
/Add. 13, paragraph 10).

15. The Working Group notes that the role of the authorities of
Thailand in the transfer of Mr. Al-Bakry to US custody is not clear.
In any event, Mr. Al-Bakry having been only briefly in the custody
of the Thai authorities - if at all - and this detention having
occurred more than four years ago, the Working Group did not
consider it necessary to bring the communication to the attention of
the Government of Thailand and to seek its observations. The Working
Group notes, however, that in its most recent report (A/HRC/4/40) it
called attention with great concern to the question of irregular
extraditions referred to as "extraordinary renditions", of which Mr.
Al-Barkry's case would appear to be an example. In this respect, the
Working Group reiterates that "[t]he practice of "renditions", i.e.
the informal transfer of a person from the jurisdiction of one State
to that of another on the basis of negotiations between
administrative authorities of the two countries (often the
intelligence services), without procedural safeguards is
irremediably in conflict with the requirements of international law.
When a Government eludes procedural safeguards, in particular the
affected person's right to be heard, it cannot in good faith claim
that it has taken reasonable steps to protect that person's human
rights after removal, including the right not to be arbitrarily
detained. As a consequence, it will share responsibility for ensuing
arbitrary detention." (A/HRC/4/40, paragraph 50).

16. In the light of the foregoing, the Working Group renders the
following Opinion:

The deprivation of liberty of Mr. Al-Bakry is arbitrary, being in
contravention of articles 2 and 9 of the International Covenant on
Civil and Political Rights and falls within category I of the
applicable categories to the consideration of cases submitted to the
Working Group. Both the Government of the United States of America
and the Government of Afghanistan bear responsibility for the
violation of his right to liberty.

17. Consequent upon the Opinion rendered, the Working Group requests
both Governments to take the necessary steps to remedy the
situation, and to bring it into conformity with the standards and
principles set forth in the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights.
Adopted on 11 May 2007.
End of text of attachment.

Tichenor


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