THE CTC’S PERFORMANCE TO DATE

These articles are the ones chiefly deployed in a campaign of persecution against nonviolent independent Muslims that has seen an estimated 7,000 people incarcerated, including some 4,000 adherents of the nonviolent group Hizb ut-Tahrir (Party of Liberation), whose teachings in favor of an Islamic state the government finds seditious.²⁰  Despite the Uzbekistan government’s assertion that these prosecutions are a response to terrorism, in the vast majority of cases researched by Human Rights Watch, those imprisoned were not charged with terrorism or even with committing any act of violence. In essence, Uzbekistan has criminalized legitimate religious practice and belief in a way that casts individuals’ exercise of their rights to freedom of conscience, expression, and association as attempts to overthrow the government.  In its reports to the CTC, it is characterizing instruments of gross and widespread abuse of human rights as a legitimate counter-terrorist response.

Uzbekistan’s campaign against nonviolent independent Muslims who preach or study Islam outside the official institutions and guidelines has been going on for a decade.  In the early and mid-1990s the government justified the repression of independent Islam as an effort to preserve secularism. Beginning in 1998 it referred to the need to prevent terrorism, and today the Uzbek government places the arrests firmly in the context of the global campaign against terrorism since September 11, 2001.

The case of Uzbekistan also illustrates how requiring human rights reporting would enable the CTC to improve its assessment of the effectiveness of the counter-terrorism provisions that states are reporting. In countries where due process is lacking, and torture and unfair trials are common, there can be no guarantee that convictions secured under counter-terrorism laws are truly removing from society those involved in terrorism.  The soundness of any criminal conviction in Uzbekistan is called into question by the fact that torture and ill-treatment in Uzbek prisons and police precincts remain widespread, and occur with near-total impunity.  Uzbek courts continue to accept as evidence confessions extracted under torture. No legal safeguards against torture have been introduced, despite persistent recommendations to that effect by international monitoring bodies, including the U.N. Special Rapporteur on torture and the Committee against Torture.

Malaysia

Malaysia’s initial report to the CTC presents the Internal Security Act (ISA) as one of the main legislative provisions satisfying the requirements of Resolution 1373.²¹  The report states that the ISA “is utilized to detain persons with a view to preventing them from acting in any manner prejudicial to Malaysia’s national security, maintenance of essential services or the economic life of Malaysia or as a preventive measure.”  Malaysia’s initial report also states: “The application and enforcement of all the laws cited … are subject to the rule of law and the principles of natural justice, with the Legislative, Executive and Judicial branches of government acting as checks and balances.  Further safeguards for due process are also enshrined in the Federal Constitution and incorporated into the relevant laws.”   

The ISA is a draconian law, passed in 1960 in response to a Communist insurgency, and has been used in succeeding decades against political opponents of Malaysia’s longtime ruling party.  Under the ISA, the government can detain individuals without charge or trial, denying them even the most basic due process rights.  It allows the government to hold detainees for two years after arrest, and then renew this period indefinitely without judicial approval or scrutiny; ISA detainees have no right to contest their detention in court. 

That the ISA has been used as a political tool cannot have escaped the attention of the CTC’s experts: it was used notoriously in the case of Malaysia’s former deputy prime minister Anwar Ibrahim, who was initially detained in 1998 under ISA provisions.²²  That case alone should also have alerted the CTC to the hollowness of Malaysia’s assurance of due process guarantees and judicial independence. As Human Rights Watch recently pointed out in a major report on the ISA, its regular use as a political tool casts doubt on the Malaysian government’s claim that the ISA is now being used for “legitimate” purposes.²³  The ISA took on new life as an anti-terror measure in 2001, and over the past three years, the Malaysian government has detained over 100 people suspected of involvement in terrorist activity, only a handful of whom have been released. Most of these detainees are accused of being members of the militant group Jemaah Islamiyah, which is allegedly responsible for killing more than 200 civilians in bombing attacks in Indonesia in 2002 and 2003. While some may well be dangerous individuals, many likely are innocent of involvement in terrorist conspiracies.  Despite their prolonged detention, the Malaysian government has yet to bring any of the cases to court or offer convincing evidence that the detainees were involved in illegal activity.

Morocco

Following the September 11 attacks on the United States, Morocco increased surveillance and escalated crackdowns on Islamic groups, many of which were believed by authorities to have a local link to Al-Qaeda.  Moroccan security authorities carried out arrests and detentions on a large scale, and criminal prosecutions.  Only one of these is alluded to in Morocco’s reporting to the CTC:²⁴ the action against a “sleeping cell” of Al-Qaeda in 2002-03, consisting of three Saudis and seven Moroccan men and women accused of planning to blow up NATO warships in the Straits of Gibraltar and of plotting attacks on cafes and public buses in Marrakech.

On May 16, 2003, twelve suicide bombers struck in five different locations in Casablanca, killing 33 people as well as themselves, and injuring over a hundred.   These attacks led to wide-scale arrests.  Although overreaching by authorities and concomitant rights abuse is particularly likely in the wake of such a traumatic attack, the CTC appears not to have addressed the matter. 

Morocco’s reporting to the CTC makes no mention at all of the arrests and prosecutions connected to the May 16, 2003 bombings:  its one report subsequent to the attacks, a second supplementary report dated December 3, 2003, is purely a response to questions and requests for clarification from the CTC on issues raised in its previous supplementary report.  Despite Morocco’s second supplementary report being already over three months late at the time of the May 16 bombings, the CTC did not, subsequent to the bombings, make a follow-up request to Morocco that its overdue report should include information on actions taken in consequence of the May 16 events.  

The exact numbers of detainees who were arrested by the judicial police or any other security body since May 16, 2003 in connection with terrorism charges, and the number of the detainees who have faced terrorism charges and have been brought to trial since then, have not been officially disclosed.  Morocco’s minister of justice stated on May 12, 2004 that 2,000 people had thus far been indicted in terrorism-related cases since the May 2003 bombings, 14 people had been sentenced to death and “scores of others” had been sentenced to prison terms of up to 30 years.²⁵  Local nongovernmental organizations estimate the number of people detained at 5,000.  A number of those who are known to have been convicted in connection with the May 16, 2003 attacks have alleged a range of abuses including torture in pre-trial detention, deprivation of legal counsel, being held in unlawful and prolonged garde à vue detention, and being forced to sign false confessions. 

The example of Morocco also illustrates the apparent lack of CTC interest in rights implications of draft anti-terror legislation. New counter-terrorism legislation, the Anti-Terror Bill 03.03, was passed on May 29, 2003.  Its drafting was flagged in Morocco’s first supplementary report to the CTC,²⁶ and details of the law are presented in Morocco’s second supplementary report.²⁷  The bill revises the Penal Code and Criminal Procedure Code by adding new provisions and amending others.  Acts of terrorism are defined in a broad and sweeping manner: a list of specific acts can be classified as terrorism when they “are deliberately perpetuated by an individual, group or organization, where the main objective is to disrupt public order by intimidation, force, violence, fear or terror.”  The list of acts includes theft of goods, extortion, and the promulgation and dissemination of propaganda or advertisement in support of the mentioned acts.  The anti-terror legislation also extends the permissible length of detention without judicial order for offenses that are deemed to constitute acts of terrorism to twelve days, without right of appeal, and allows for suspects to be prevented from meeting their legal counsel for up to ten days.

Moroccan human rights groups stressed, prior to the bill’s passing, that the Anti-Terror Bill would unnecessarily compromise basic human rights, and that the existing penal codes provided sufficient law enforcement power to combat illegal and criminal activity of any kind.²⁸  Inquiry from the CTC about what deficiencies the new law was intended to address, and whether essential safeguards of human rights and due process were in place, appear to have been completely absent. 

The Moroccan Organization for Human Rights²⁹ and Amnesty International³⁰ reported in November 2003 to the U.N. Committee against Torture about some of the deficiencies in the criminal justice system and about lack of substantive and procedural protections following the passing of the anti-terror legislation that in many cases resulted in unfair trials and harsh punishments.  The Committee against Torture expressed in November 2003 a concern with regard to the impact of the anti-terror legislation in Morocco and specifically “the considerable extension of the time limit for police custody, the period during which the risk of torture is greatest, both in criminal law and in anti-terrorist legislation.”³¹  It remains to be seen whether the CTC, in evaluating Morocco’s second supplementary report from December 2003, will signal any concerns consistent with the position taken by the Committee against Torture.

Sweden

Sweden’s initial report to the CTC in December 2001 includes, in response to the CTC’s question on legislation and procedures for denying safe haven to terrorists, the statement that “persons who risk capital punishment or torture or other inhuman or degrading treatment or punishment may never be returned to their country of origin or another country where they would be exposed to such a risk.”³²

In the case of at least two persons expelled from Sweden, however, this statement, which is offered without qualification, is blatantly false. Two days before submitting this report to the CTC, Sweden expelled two Egyptian asylum seekers, Ahmed Agiza and Mohammed al-Zari, and forcibly returned them to Egypt, despite an acknowledgment that the two had a well-founded fear of persecution in their home country.  The two men were excluded from refugee status based on secret evidence provided by the Swedish security police that the men were associated with Islamist groups responsible for terrorist acts and were not permitted an opportunity to challenge the exclusion or their expulsion orders. It has since been reported that the men were transferred from Stockholm to Cairo aboard a U.S. government-leased airplane and that they were hooded, physically abused, and drugged in transit.

Their expulsions from Sweden were ordered on the basis of diplomatic assurances by the Egyptian government that the men would not be subjected to torture or ill-treatment, would receive fair trials, and would not face the death penalty.  However, these assurances have apparently proved to be hollow, and Sweden’s scheme for monitoring them wholly inadequate.  Upon return to Egypt, Agiza and al-Zari were held for five weeks in incommunicado detention, and there have been credible allegations that they were tortured and ill-treated.³³

The men’s allegations of torture were first brought to the attention of Swedish authorities in January 2002 during the first official monitoring visit to them by Swedish diplomats. These torture allegations were detailed in a confidential monitoring report by the Swedish ambassador to Egypt that was eventually made public in May 2004. Swedish authorities at the time concluded, without further investigation, that the men’s allegations were unfounded. Agiza’s April 2004 re-trial in an Egyptian military court was riddled with fair trial violations—a clear breach of the diplomatic assurances—and the Egyptian government failed to investigate the allegations of torture that Agiza made in court.  The Swedish representatives monitoring Agiza’s trial failed to act upon these public allegations of torture.

International law prohibits absolutely the return of any person, no matter what his or her status or suspected crime, to a place where he or she would be at risk of torture or ill-treatment.  There are no exceptions to this principle.

After U.S. involvement in the men’s transfers was exposed by a Swedish television news program,³⁴ the Swedish government itself called for an “independent, international inquiry” into the cases. The Swedish Parliamentary Constitution Committee and the Justice Ombudsman are also conducting separate inquiries into U.S. involvement in the transfers and the men’s treatment in Sweden. 

The Human Rights Committee, in examining Sweden’s periodic report in April 2002, explicitly raised the issue of “cases of expulsion of asylum-seekers suspected of terrorism to their countries of origin,” addressed the insufficiency of mere pledges of humane treatment by the country of origin, and urged Sweden to “maintain its practice and tradition of observance of the principle of non-refoulement.”³⁵  The Committee, in its response to Egypt’s most recent periodic report, also reemphasized the prohibition on refoulement and drew specific attention to the problem of renditions, noting that “Egyptian nationals suspected or convicted of terrorism abroad and expelled to Egypt have not benefited in detention from the safeguards required to ensure that they are not ill-treated, having notably been held incommunicado for periods of over one month...”³⁶

The CTC should be taking due account of the very public allegations in the Agiza and al-Zari case, and demanding that Sweden account for its misleading statement in its initial report.  To the knowledge of Human Rights Watch, the CTC has not done so.

A significant proportion of what states are required to report, and of the follow-up questioning by the CTC, focuses on questions of extradition. The CTC should be ensuring, by requiring explicit mention in states’ reporting, that all states understand their obligation in international law not to return any person to a place where he or she would be at risk of torture or ill-treatment.³⁷

Absence of Information on the Application of Counter-Terrorism Measures

The CTC’s reporting requirements appear, to date, to have emphasized merely structural aspects of counter-terrorism provisions put in place by governments: there appears to have been little attention paid to actual implementation of new or existing security measures.  However, the initial set of questions to which states were obliged to respond, as set out in the CTC Chairman’s Note of October 26, 2001,³⁸ includes an instruction to report not just on legislation and executive action but “other action, if any… taken to implement the letter and spirit” of resolution 1373.  In several parts of that guidance note the question posed by the CTC is accompanied by a request for examples of actions taken.  Yet state reports reviewed by Human Rights Watch are strikingly lacking in information of this kind.  It is not possible to determine whether the CTC is making an effort to assert the need for this information, as the CTC’s subsequent communications to states requesting clarifications and supplementary data are not public documents. 

A strengthened requirement of states to report on actual application might reveal issues that would immediately signal a concern about compliance with Resolution 1456.   It is well known, for example, that in some countries counter-terrorism arrests and prosecutions have occurred on a very wide scale.  Had this been reported to the CTC by the states concerned, numbers alone – such as the estimated 7,000 people imprisoned in Uzbekistan, mentioned above – should have triggered concern either that the state in question faces an internal terrorist threat so great that it requires immediate practical assistance from the CTC, or that counter-terrorism legislation is being used excessively and inappropriately, possibly opportunistically, for example to suppress non-violent opposition or dissent.

CTC Inquiries that may Encourage Harmful Practices

Not only is the absence of a human rights monitoring function problematic, but that in failing to conceptualize its obligations with appropriate reference to maintaining fundamental human rights standards, the CTC may itself be prompting outcomes that are detrimental.  Sir Nigel Rodley, speaking to the CTC in June 2003, expressed the particular concern that in the course of reviewing Slovakia’s first report, the CTC’s follow-up questions requesting clarification regarding expulsions and exclusion of persons from refugee status based on suspected links with terrorist groups, “could be understood to be urging that State to overlook the principle that in no case should a person be sent to a territory where he or she faces torture or cruel, inhuman, or degrading treatment or punishment.”³⁹ 

Similar criticism could be made of the way in which the CTC has put follow-up questions to other state reports.  Malaysia’s initial report to the CTC highlights as a legislative provision applicable to terrorist offenses the Prevention of Crime Act 1959, which empowers a police officer to arrest without a warrant “any person he has reason to believe is involved in criminal activities involving dishonesty, or is a member of a secret society or is an undesirable person…,” and provides for the registration of such persons, which in turn requires periodic reporting to police and restrictions on association and movement, and creates liability to imprisonment for breach of those restrictions or for any subsequent offence involving violence.⁴⁰  Instead of querying the compliance of this legislation with human rights standards, the CTC asked Malaysia to explain, in its first supplementary report, why the Prevention of Crime Act 1959 applied only in Peninsular Malaysia, which could be read as endorsing it and advocating its extension to the whole country.⁴¹  Malaysia’s response, pointing to the countrywide applicability of the similarly draconian Emergency (Public Order and Prevention of Crime) Ordinance 1969,⁴² apparently elicited no follow-up response from the CTC, having gone unremarked when mentioned in Malaysia’s initial report.