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April 21, 2014

The Legacy of Bahrain’s Military Courts May Impede Reconciliation

By Marie Soueid

Three years have passed since the Bahraini government opened its military trials against activists and doctors who were involved—at times only marginally—in the February 2011 uprising. With ongoing discussion of national reconciliation in Bahrain, coming to an agreement will be all but impossible without first addressing the legacy of the National Safety Courts and the fate of those still imprisoned under their rulings.

When the military courts first started their trials on April 4, 2011, it was clear that they would not comply with international human rights standards. Thirteen political and human rights activists and twenty medical professionals were among the approximately 500 defendants convicted in tribunals lacking procedural safeguards. 

The National Safety Courts, which tried civilians under the state of emergency instituted in March 2011, should never have had jurisdiction over these cases. None of the recognized exceptions under international law for trying civilians in military courts was applicable. Of the charges leveled against the defendants, none concerned military crimes. Hassan Mushaima, leader of the Al Haq opposition movement, for example, was charged with advocating “marches, demonstrations and civil disobedience” to call for the “establishment of a democratic republic.” Another defendant, Ibrahim Sharif, was sentenced to five years for “encouraging assemblies, demonstrations, and sit-ins and “discuss[ing] the demand for a republic.”

Among the safeguards that make a trial fair under international law are access to an attorney and the right to a defense, right to a public trial, exclusion of evidence obtained by torture, presumption of innocence, and the independence of the judiciary. The Bahraini defendants were not afforded any of these. Several of the “Bahrain Thirteen,” activists whose trial opened on May 8, 2011, were convicted with virtually no evidence at all. International non-governmental organizations, including Human Rights First, were denied entry to the National Safety Courts, violating the right to a public trial. Many defenders’ first contact with their attorney was at their trial, and communication with them was often scarce.

Further, defendants were immediately silenced or thrown out of the courtrooms when they attempted to bring up credible accusations that they had been tortured into confessing to crimes. Even witnesses that testified to defendants being tortured were not permitted to continue. Judges appointed by the commander of the Bahraini military oversaw the trials; often members of the royal family presided.

International condemnation for such flagrant human rights violations was hard to come by. Although the United Nations High Commissioner for Human Rights condemned the convictions made by these improperly constituted courts, western governments, many of which sent diplomats and observers, offered only muted criticism. Bahrain was never held to account for convicting and jailing much of its legitimate opposition.

With the most visible and respected leaders of the opposition languishing in jail on trumped up political charges, there is a credible concern as to how successful any negotiations can be. The Bahraini government will have to find a solution that involves the release of the jailed activists, one that likely includes their involvement in political negotiations, whether from prison or after their release.

Such a situation is not without precedent; political prisoners have been released as part of  negotiated settlements around the world in such places as South Africa, the United Kingdom and Ireland, Israel and the Occupied Territories, and East Timor and Indonesia. However, the question remains, how will the Bahraini government release to normal life persons that it so adamantly charged with harming the country’s national security? Can it do so without acknowledging that the system in which they were convicted—military trials and civilian rubber stamp appeals—was bogus?  

The legacy of the National Safety Courts haunts the reconciliation effort. Activists convicted for exercising their freedom of expression remain in jail, having exhausted all of the available appeals. If the Bahraini government is going to release them, as it needs to for any real political settlement to emerge, it may have to concede the illegitimacy of both the tribunals and the appeals process.

Marie Soueid is a Juris Doctor Candidate, 2014 at American University