Litigating Abroad to Demand Accountability for Torture in Bahrain
On September 15, Jaafar Al-Hasabi, a Bahraini citizen granted asylum in the United Kingdom, filed a criminal complaint in Switzerland against Bahrain’s attorney general, Ali Bin Fadhul Al-Buainain. Al-Hasabi says he was held in incommunicado detention in Bahrain, where he was subjected to torture, including electric shocks. The complaint alleges that the Bahraini Public Prosecution Office, headed by Al-Buainain, authorized his detention twice, despite the United Nations’ expressed concerns.
The timing of the complaint’s filing was critical. The attorney general was expected to visit Zurich to participate in the annual conference of the International Association of Prosecutors. By filing the complaint to coincide with his arrival, Al-Hasabi and the organizations supporting him aimed to give Swiss prosecutors an opening to claim jurisdiction over Al-Buainain.
Even though the Swiss authorities did not take any action to investigate the allegations against Al-Buainain during his time in country, this criminal complaint exemplifies how torture survivors can turn to countries with universal jurisdiction to try to hold officials accountable.
The Bahraini government has left itself vulnerable to criminal prosecutions abroad because of its failure to fully implement the recommendations of the Bahrain Independent Commission of Inquiry (BICI) report. One of these recommendations calls for “effective investigations” of all allegations of torture and similar treatment, and prosecution of implicated individuals. The Bahraini regime has instead allowed those alleged to have committed human rights violations—including torture—to operate with impunity.
As a result, torture survivors are turning to other countries’ criminal justice systems. States that have signed and ratified the Convention Against Torture are required to criminalize torture and either prosecute or extradite alleged offenders present in territory under their jurisdiction. Notably, the treaty does not require the torture to have occurred in its jurisdiction. This concept of “universal jurisdiction” allows for prosecutions even where there is no other nexus with the state. Bahrain is a party to the Convention Against Torture, having acceded to it in March 1998.
We’ve seen this before. The Committee Against Torture issued a scathing decision on Senegal’s handling of former Chadian dictator Hissène Habré in 2006—and that campaign for justice has recently been vindicated. Before that, there was a hard-fought battle in London over the arrest and attempted extradition of former Chilean dictator Augusto Pinochet for torture.
In fact, the attorney general isn’t the first Bahraini official to be confronted with the prospect of a criminal investigation abroad. In October 2014, the High Court in London found that Prince Nasser bin Hamad al-Khalifa was not entitled to diplomatic immunity in relation to allegations that he was involved in the torture of protestors detained in 2011.
Nonetheless, these kinds of international interventions are rare. The most significant obstacle is the failure of states to fully comply with their duties under the Convention Against Torture. In some instances torture is not explicitly criminalized, or the treaty’s provisions are not fully incorporated into domestic law. Other considerations, including diplomatic immunity and lack of political will, often militate against the “prosecute or extradite” requirement.
Yet these criminal complaints still matter. They draw global attention to the abuses and cause perpetrators to think twice before traveling abroad. Congress has an opportunity now to support the Bahrain Independent Commission of Inquiry (BICI) Accountability Act of 2015, which would bolster reform efforts by inhibiting arms sales to the Bahraini military until the regime fully complies with the BICI recommendations. Until Bahrain takes accountability seriously at home, those implicated in the 2011 crackdown will remain vulnerable abroad.