Monday, November 21, 2011

Arms Deals and Human Rights: Multi-Party Obligations in Bahrain

Flikr, Msha7welhom
By Samuel Halpert
It’s been a bad year in Bahrain. After only four days of peaceful protests for political reform last February, the army opened fire on the unarmed protesters--as well as ambulances that arrived to carry away the wounded. The carnage has continued through spring, summer, and into this fall. In August and October, Human Rights Watch documented incidents of police rounding up suspected dissidents and subsequently beating and torturing them in detention--medics who have treated victims of state violence have suffered a similar fate.

So, when the Department of Defense proposed
a $53 million arms sale to Bahrain this September, the idea was unpopular with many.
Human rights groups co-authored a letter to Congress requesting they block the sale because “Bahraini security forces have ... undertaken a relentless program of retribution." On October 6th Senator Wyden (OR) and Representative McGovern (MA) introduced a joint resolution calling for the sale's prohibition unless the Department of State can certify Bahrain is taking steps to improve its record. State decided to postpone the sale pending the report from Bahrain's Independent Commission of Inquiry, created to investigate the rights groups' allegations; they now expect that report at the end of November.

But while stalling Bahrain’s access to U.S. military hardware may represent a moral achievement, on its own it may do very little to limit the Bahraini government’s ability to act against its own people.
In the weeks after the Bahraini arms deal was announced, the Defense Department also proposed arms sales to Saudi Arabia ($886 million), Qatar ($750 million), the UAE ($401 million and $65 million) and Oman ($1.248 billion). All four of these countries, according to Stratfor Global Intelligence, sent forces into Bahrain at the invitation of its king last March. The countries acted under the aegis of the Peninsula Shield force, the military corps of the Gulf Cooperation Council (GCC), of which Bahrain is a member. (As recently as August, according to Al-Jazeera, the Peninsula Shield was still deployed in Bahrain.)
The Commission's report may have implications for the pending sales to these countries as well. The Royal Order establishing the Independent Commission authorizes it to "ascertain any involvement of foreign forces and foreign actors in the events." This provision is likely intended by the king to expose Iran; the Guardian reports he suspects Iran instigated the protests. However, the Commission is equally empowered to investigate the extent of GCC forces' involvement.

Officially the role of the GCC in the crackdown on protestors was quite limited. The GCC commander said in an
Asharq Al-Awsat interview "the Peninsula Shield forces … are stationed in certain areas to protect the Bahraini borders." The British Foreign Office, in the intervention's early days, supported this story, telling its Parliament in a written answer  "we have not received evidence that [GCC] forces have done anything other than safeguard installations in Bahrain." But according to the international press, the distinctions between GCC and Bahraini forces are more blurred: The New York Times called Saudi involvement "a three-month mission to quell an uprising against the monarchy there." Arabian reported "Saudi and United Arab Emirates troops helped Bahrain stamp out protests." One Reuters headline ran "6 killed as GCC forces crush Bahrain unrest." At least one witness report published in the Guardian describes an incident involving a Saudi officer watching subordinates beat suspects. (The Peninsula Shield force recently told Asharq Al-Awsat it intends to sue a number of satellite TV channels responsible for some of the most unfavorable coverage.) With these two very different versions of events out there, the Independent Commission, theoretically, has the authority and the means to determine what was actually going on.

From a legal perspective, their findings could be crucial. If the Commission finds that torture occurred (given reports already released by
Amnesty International and Physicians for Human Rights, it would be hard to credit findings to the contrary), the GCC's degree of involvement, their level of control over Bahrain's interior affairs, and the scope of their mission would determine whether Saudi Arabia and Qatar, as well as Bahrain, would be in violation of their human rights treaty obligations.

Saudi Arabia, Qatar, and Bahrain have all acceded to the Convention Against Torture (CAT).
Article 1 of the Convention defines torture as "any act by which severe pain or suffering…is intentionally inflicted on a person for such purposes as…punishing him for an act he or a third person has committed." If allegations such as those made by the Guardian are true, actions by Saudis in Bahrain would likely fit the bill. Article 2 of the Convention imposes duties on a State "in any territory under its jurisdiction," but the UN Committee Against Torture's General Comment No. 2 § IV.16 has clarified that the treaty obligation extends to states' peacekeeping operations.

A peacekeeping action by the GCC is unprecedented, yet the official parameters of GCC involvement comply with UN principles for peacekeeping missions
—consent of parties, impartiality, and non-use of force except in defense of the mandate.
King Hamad declared through the Bahrain News Agency "the deployment of Peninsula Shield military units is in the framework of the joint defense coordination and cooperation." There you have the consent of the Bahraini government. The Saudi Gazette reported the GCC was invited by Bahrain and had no intention of interfering with Bahrain's internal affairs. Thus, the GCC is officially impartial. The Peninsula Shield commander (quoted above) maintains the force merely occupied key infrastructure. That takes care of the final requirement: that the GCC’s official mission not involve the use of force. Taken at their word, the most favorable light under which the GCC's activities in Bahrain can be viewed is as an international peacekeeping mission.

So what are the human rights treaty obligations for peacekeeping forces? A panel of experts organized by the International Committee of the Red Cross concluded in their
report that States are responsible for the actions of their respective troops, even when those troops are under the command of an international organization. This responsibility, the panel continues, at a minimum involves negative obligations; States' troops may not directly interfere with human rights. States can also acquire positive obligations—the responsibility to secure human rights—if they have a sufficient degree of control. (The panel report goes into detail on this point at pages 80 and 84.)

A number of cases from European international tribunals suggest reasonable interpretations of what such control might involve. (For a more thorough discussion of these precedents, see "
The Extraterritorial Human Rights Obligations of States.") A State can acquire jurisdiction, and therefore positive obligations, through control over persons or property (as in Cyprus v. Turkey) or through "lawful or unlawful … effective control of an area outside its national territory" (Loizidou v. Turkey). If GCC forces had control, even briefly, over detainees who were subsequently tortured, the act of relinquishing such detainees to Bahraini custody could be considered an extradition (as in Ocalan v. Turkey) and such an extradition would be a violation of Article 3 of the Convention  provided there are “substantial grounds” for believing that the detainees would be tortured. Article 3 also states “the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights” should help determine whether grounds for belief exist. The State Department’s 2020 Human Rights Report on Bahrain documents that last year local and international NGOs asserted that Bahraini security personnel had tortured more than two dozen detainees. Finally, if GCC forces had effective control over any Bahraini territory, it would be responsible for any violations of the Convention in that territory, regardless of the GCC's degree of involvement.

Crucial questions for Bahrain's Independent Commission, then, should be: (1) Did the Peninsula Shield forces (especially their Saudi and Qatari contingents) torture Bahrainis? (2) What degree of control, if any, did the Peninsula Shield forces exercise over Bahraini detainees who were subsequently tortured? (3) Did Peninsula Shield forces at any point exercise effective control over Bahraini territory where torture—by any party—occurred?

According to Congress'
recent joint resolution, "providing military equipment … to a government that commits human rights violations … is at odds with United States foreign policy goals of promoting democracy, human rights, accountability, and stability." Congress’ principled stand against the sale of arms to countries that violate human rights should be applauded – denying weapons to governments like Bahrain is one of the easiest ways to give the international treaties teeth. By the same rationale, though, if the Independent Commission finds evidence of their culpability, the Saudi and Qatari governments should be precluded from entering into arms deals with U.S. companies.
But U.S. principle in this instance should not stop at the borders of those states. If the Gulf States sign a mutual defense pact, and some of those States also have human rights obligations, there is persuasive legal support to argue that when intervening in a State with human rights obligations, all States involved must fulfill their obligations under the mutual defense treaty in a manner consistent with the human rights obligations of the State requesting aid. Article 31(3)(c) of the Vienna Convention on Treaty Interpretation requires that treaties be interpreted taking into account “any relevant rules of international law applicable in the relations between the parties.” The European Court of Human Rights has on multiple occasions used this provision to interpret a State’s treaty commitments in the light of language from other international instruments. (For instance, in Demir v. Turkey § 65-67 and Al-Adsani v. The United Kingdom § 55.) Under this approach to treaty interpretation, a promise by any GCC member to help Bahrain could be interpreted as a promise to help Bahrain without violating other treaties to which Bahrain was a party.
The ECHR’s approach is far from the only possible one; the issue of resolving conflicts between treaties is thorny and uncertain. The European Court of Justice, for example, held in Kadi v. Council of the European Union (see § 4) that to allow another international agreement to alter the terms of the European Union’s Treaties would violate the rule of law. (For a more complete discussion, see The Law of Treaties Beyond The Vienna Convention, Chapter 12.) But what would be the sense in denying Bahrain, Saudia Arabia, and Qatar weapons if we will still sell to countries who support them militarily though a mutual defense pact? Such a ban would have no effective force. Pending the Commissions findings concerning the actions of the Peninsula Shield force in Bahrain, the U.S. should postpone arms sales to all GCC member states.

No comments:

Post a Comment