|By Staff Sgt Corkran F. Lee [Public domain], via Wikimedia Commons|
by Samuel Halpert
As indicated by my last post, I’ve been eagerly awaiting the report from the Bahrain Independent Commission of Inquiry into that country’s recent crackdown on political protests. The Commission has just released its report, and under current international law the GCC probably can’t be held accountable.
First of all, the Commission has determined that several Bahraini governmental agencies perpetrated “a systemic practice of physical and psychological mistreatment, which in many cases amounted to torture.” (BICI Report, 292) They also concluded that such a systematic pattern could not have developed without the knowledge of the upper-level commands of the Bahraini government. (BICI Report, 275) Which means the Bahraini government had a role in the torture that occurred during the crackdown.
And what of the other governments with troops in Bahrain last spring? Starting in mid-March, Gulf Cooperation Council (GCC) forces from Saudi Arabia, Kuwait, Qatar, and other member states played a role in the crackdown as well. Presupposing that the Bahraini government had engaged in torture, when anticipating the Commission’s findings there were three questions related to the GCC Peninsula Shield Force’s (referred to in the report as the Jazeera Shield Force, or GCC-JSF) involvement I said were necessary to analyze GCC responsibility under international law:
(1) Did the GCC-JSF itself torture Bahrainis?
(2) What degree of control, if any, did the GCC-JSF exercise over Bahraini detainees who were subsequently tortured?
(3) Did GCC-JSF at any point exercise effective control over Bahraini territory where torture—by any party—occurred?
The report does examine the role of the GCC-JSF in the crackdown. The Commission, relying mostly on reports received from the Bahraini government, found no evidence that the GCC-JSF committed human rights violations in Bahrain. GCC-JSF troops were in Bahrain only in anticipation of foreign intervention, protecting vital infrastructure in the south. (Manama, the center of the unrest, is on the north end of the island.) The sole allegation made to the Commission against the GCC-JSF, which the Commission duly investigated, turned out to be the work of the Bahrain Defense Force. The Commission’s conclusion also noted that no GCC-JSF units reported firing any weapons, engaging civilians, or sustaining injuries (BICI Report, 377-378).
It seems the "negative" obligations of the GCC-JSF to respect human rights—the focus of the first two questions above—were upheld during their time in Bahrain. However, the Commission failed to directly address the third question; depending on the extent of GCC-JSF control in the country, the GCC peacekeeping forces could possibly have acquired positive obligations, as I mentioned in my earlier post. In the absence of an explicit discussion in the report, it may be worth explaining why they likely didn’t.
When conducting military operations in a friendly foreign state, it’s best to have a SOFA, or Status of Forces Agreement. This treaty stipulates what the responsibilities of the invitee forces are within the inviting state, under which state’s laws those forces will be liable, and under which state’s jurisdiction they will operate. (For instance, see the U.S.-Iraq SOFA, articles three, four, and twelve.)
In the Commission’s report, no SOFA is mentioned. King Hamad “concluded” that Bahrain required GCC military assistance to “deter against … a possible intervention [by] Iran” (BICI report, 129). The Commission mentions reports received from the Bahraini government describing specific GCC-JSF missions and tasks (BICI report, 377), but no document outlining the scope of their authority or the legal source of their powers in the crisis. The Commission was careful to enumerate the expanded powers King Hamad granted each security authority in a royal decree issued the same day the GCC-JSF entered Bahrain; no mention is made of the GCC-JSF. A formal agreement for the GCC intervention may not have existed.
Without one, it is difficult to argue that GCC-JSF personnel could be expected to fulfill positive treaty obligations. It’s possible that general provisions of the UN Model SOFA applied as customary international law. (For a more thorough discussion, see Immunities…in the Absence of a [SOFA]) The Model SOFA, though, fails to specify the scope of human rights obligations during peacekeeping operations or mention human rights at all—a deficit noted by an expert workshop on UN Peacekeeping Law Reform at the University of Essex.
No SOFA also means GCC forces couldn’t have exercised “effective control” of Bahraini territory—another way in which they might have acquired positive duties to safeguard human rights. (Loizidou v. Turkey) Without a hostile military occupation, a state lacks effective control unless the host state specifically grants it. (See Shaw, International Law) If, under a SOFA, Bahrain had asked the GCC to assume responsibility for particular regions or had granted them supervisory authority over Bahraini commands, the GCC-JSF might have had effective control. The Commission’s report suggests neither scenario occurred.
The report’s findings will likely be challenged; many allegations against the GCC-JSF (the account in the Guardian, for instance) report Saudis, identified by their accents, acting in Bahraini uniforms, not GCC-JSF personnel operating openly in the crackdown. However, on their face the findings likely absolve the GCC of responsibility for the acts of the Bahraini government during the crisis, at least with respect to international law.
Of course, there is also a moral dimension to the GCC’s actions last spring. According to the State Department, the Bahraini security forces number roughly 13,200. The GCC-JSF deployed roughly 5,000 troops in Bahrain. (BICI report, 377) Whether Bahrain would have had the manpower to suppress its popular uprising without GCC forces securing its borders is questionable. Under present law, though, the Commission’s report absolves GCC states of responsibility for Bahrain’s human rights abuses.