publications

IV. Arbitrary Detention

Detention is arbitrary if (1) the authorities provide no legal basis justifying the deprivation of liberty, as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him (Category I); (2) deprivation of liberty results from the exercise of protected rights or freedoms such as freedom of belief or freedom of expression (Category II); and (3) when violations of international fair trial norms are so grave as to give the deprivation of liberty an arbitrary character (Category III).86 This is explored further in the section “Legal standards,” below.

The GID detained `Adnan Muhammad Sadiq Abu Nujila, of Zarqa, around October 2003, after he was returned to Jordan from Azerbaijan following his arrest there on August 15, 2003.87 According to his family, `Adnan Abu Nujila had left for Chechnya in 1995. During Ramadan 2003 (October-November), an unknown person came to the home of `Adnan Abu Nujila’s family, who had not seen `Adnan for years and had had only sporadic contact with him, to tell them that he was in detention at the GID central facility. The GID in Amman denied they were holding `Adnan Abu Nujila when the family made enquiries there two months later, at the end of 2003. The family then turned to the International Committee of the Red Cross (ICRC) for help.

The family was unaware of any charges against Abu Nujila, and wrote petitions for mercy (istirham) to the GID and political authorities every other week, but never received a reply. In July 2004 they hired a representative, Muntasir Hassuna, who managed to visit `Adnan Abu Nujila at the GID facility and confirmed his arrest.

`Adnan Abu Nujila’s brother, Ahmad, told Human Rights Watch that on August 24, 2004, the GID brought `Adnan home to Zarqa after ten months at the central GID facility in Amman. Three days later, on August 27, the same intelligence officers who had released him approached `Adnan just before Friday midday prayers and asked to speak to him for “half an hour, just to answer a few questions,” according to Zakariyya, a third brother, who told Human Rights Watch that he was with `Adnan Abu Nujila when the officers returned. `Adnan Abu Nujila later told his family during a GID prison visit that the officers drove him from Zarqa back to the GID in Amman. He has been in GID detention without charge since August 27, 2004. `Adnan Abu Nujila told his family that the GID did not interrogate him after his most recent arrest.88

The Jordanian government has not replied to an October 2005 inquiry by Human Rights Watch about the reason for `Adnan Muhammad Sadiq Abu Nujila’s detention. As of this writing, `Adnan Abu Nujila has been in GID detention without charge for almost three years, with the one brief interruption of three days.

The GID had previously arrested Ahmad Abu Nujila, `Adnan Abu Nujila’s brother, solely on the grounds that the authorities were looking for the latter. They held Ahmad Abu Nujila for four days in September 2002 during which they questioned him about the whereabouts of `Adnan and the latter’s activities in Turkey, Azerbaijan or Chechnya. 89 After releasing Ahmad Abu Nujila they retained his passport and allegedly ordered the manager of an upscale Amman hotel where he was working at the time to fire him. According to Ahmad Abu Nujila, the manager told him, “I’m sorry, but I received a call from the GID to fire you, there’s nothing I can do.”90 In a similar case, the GID arrested Fahmi S., the seventeen-year-old brother of Rami S., who was in Saudi Arabia at the time. Fahmi told Human Rights Watch that an officer remarked during the arrest: “We’ll take you instead of [your brother].”91

In May 2003, the GID telephoned university student Muhammad M. at his home in Amman, asking that he report to them. The GID interrogated him then for a number of hours about a trip he had taken to Syria one month earlier. In 2004, the GID again called Muhammad M. for interrogation and forced him to sit and stand in stress positions for thirty continuous hours. 92 Muhammad M. claimed that he was questioned only occasionally. He also said that the officers demanded that he desist from all campus political activities, while at the same time asking him to become a GID informer among leftist students. In October 2005 the GID detained him briefly a third time after he returned from Saudi Arabia.93

In another case, ordinary police took Basim F. into custody because they believed that the bus he was driving had fake license plates. Basim F.’s brother told Human Rights Watch that GID officers then turned up at the police station where Basim F. was held and told the police officers, “This one’s ours.” They then proceeded to detain Basim at the central GID facility, alleging he intended to blow up Western embassies.94 Basim F. was released after two weeks without charge.

Human Rights Watch cannot rule out that the GID may have had information relating to specific alleged criminal activity of those it detained in the sixteen cases reviewed for this report, but the fact that the GID released eight detainees without charge, and a further five without proceeding to trial, suggests that it did not conduct the arrests on the basis of reasonable suspicion. Only one of the cases documented by Human Rights Watch, that of Ziyad A., went to trial, at which he was acquitted by the State Security Court of attempting to smuggle false Iraqi passports.95 The fact that all except one of the persons whose cases Human Rights Watch investigated were either released without charge, charges were not pursued to trial, or in two cases have remained in detention for months without trial (`Adnan Abu Nujila, and Issam al-Barqawi, also known as Abu Muhammad al-Maqdisi, whose case is described below) calls into question the legal basis for their arrest in the first place, as well as the legality of the continued detention of Nujila and al-Barqawi.

In all but one of the cases that Human Rights Watch investigated, those previously detained as well as the families of the two detainees still held said that they had no idea what specific crime the GID was alleging had been committed, and that officers showed neither an arrest warrant nor informed the detainee of the reasons for his arrest. The only exception was the case of Mustafa R., an engineer who was arrested by a GID officer at the Jordanian border with Iraq in August 2004. When stopped at the border, officers asked him to explain why he was traveling to Iraq without money or contacts there. When he failed to satisfy the GID officer of a legitimate motive, the GID officer briefly detained him at the border, and told him to report to GID headquarters in Amman, which he did, and was charged (see below, section “Absence of judicial oversight over charges”). Muhammad `Ali Shaqfa, the herb and spice seller mentioned above, was the only former detainee who said he challenged the GID officers directly: “I asked them why I am being detained,” he told Human Rights Watch, “but they did not give me an answer.”96

Legal standards

Jordan is a state party to the International Covenant on Civil and Political Rights, which requires that a state specify the legal basis on which individuals may be deprived of their liberty and the procedures to be used for arrests and detentions (Article 9). Only arrests and detentions conducted in accordance with such rules are considered lawful, thus restricting the discretion of individual arresting officers. The prohibition against arbitrary arrest or detention also means that deprivation of liberty, even if provided for by law, must be necessary and reasonable, predictable, and proportional to the reasons for arrest.

An arrest or detention is arbitrary if not carried out in accordance with the law, or if the law is itself arbitrary or so broadly worded as to allow arrest and detention for the peaceful exercise of basic rights such as freedom of expression or association.97

The UN Human Rights Committee, which monitors state compliance with the ICCPR and provides authoritative interpretation of the Covenant, explained in reviewing one case that:

“arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law

The circumstances of what is necessary and reasonable may change from case to case and differ between the decision to carry out an arrest, the decision to bring charges, and the decision to remand a suspect charged with a crime in custody.

In order for an arrest to be reasonable, the evidence at hand would have to satisfy an objective observer that there are reasonable grounds to believe that the suspect has committed a crime. 99 Jordan’s Criminal Procedure Code stipulates that in order to execute an arrest warrant, a law enforcement officer must have “sufficient grounds to charge” the suspect with a crime. Unless a police officer witnesses a crime in progress, the prosecutor who issues the arrest warrant must fulfill this condition. The ICCPR requires an arresting authority to immediately inform detainees of the reasons for their arrest.

The ICCPR also requires an arresting authority to promptly communicate to detainees any charges against them. A person can lawfully be held without charge – the question is for how long. If a person is detained on suspicion of a crime he or she must be charged within a reasonable time. As noted above, there is a permitted seven-day limit for detention without charge prescribed by the State Security Court law. (By contrast, in ordinary criminal cases in Jordan a prosecutor must charge detainees within twenty-four hours and the Criminal Procedure Code requires that “the evidence linking [the suspect] to the act in question is available” before the prosecutor can remand the suspect in custody.100 An official who detains a person longer than twenty-four hours in ordinary cases without presenting him to the prosecutor is liable to charges of arbitrary deprivation of personal liberty under Jordan’s penal code.101) Also as noted above, one of the sixteen detainees whose cases Human Rights Watch investigated, `Adnan Muhammad Sadiq Abu Nujila, has been in detention without charge almost continually for nearly two years. Human Rights Watch found that of the eight other detainees who were never charged and were released, the detention of six had exceeded the permitted seven-day limit for detention without charge prescribed by the State Security Court law.

Once a person is charged with a crime, remand in custody is not automatic. The ICCPR requires that detention be the exception, not the rule, for ensuring that persons charged with a crime but not convicted are available for trial. Before remanding a suspect to detention, the judicial authority – in the case of Jordan, the prosecutor – should consider whether detention is proportionate to the alleged crime and whether bail would be a sufficient condition for release.102 Reasonable grounds for remand in custody generally include considerations of the likelihood of the suspect’s committing another offense if released, whether he or she might flee justice, or whether he or she may interfere with the trial, for example by intimidating witnesses or destroying evidence. One way to ensure a suspect cooperates with his or her trial is to set conditions for bail, such as a cash bond.

Jordanian law automatically excludes the possibility of the prosecutor granting bail to pre-trial detainees charged with crimes that carry sentences of the death penalty, hard labor, or life imprisonment.103 Despite giving prosecutors discretion to determine whether bail should be granted in other circumstances, Jordanian law fails to impose a test of the reasonableness of detention.

In addition, international law grants a detainee the right to challenge the lawfulness of his or her detention by petitioning an appropriate judicial authority to review whether the grounds for detention are lawful, reasonable and necessary. The powers of the prosecutor in Jordan are sufficient to fulfill the criteria required in the ICCPR of a competent judicial authority reviewing the lawfulness of the detention.104 A Jordanian prosecutor has the authority to make a binding order, not only a recommendation, for the release of the person in question; he or she has the power to review both the legality of the detention (that is, its compliance with the procedures laid down for arrest and detention), as well as the substantive grounds for detention (the necessity and reasonableness – see below). What is at issue, however, is that the independence, rather than the powers, of a Jordanian prosecutor falls short of the criteria required of a competent judicial authority reviewing the lawfulness of detentions. As noted above, the prosecutor is neither independent, nor impartial. Administratively, the military prosecutor at the State Security Court depends on the military chain of command, which is a part of the executive. A prosecutor is also never impartial, as he or she takes an active part in the trial of the suspect, with in interest in securing a conviction. The UN Human Rights Committee examining a case of a legal system with a similar, but in fact more limited, role for the prosecutor, stated that it was “not satisfied that the public prosecutor could be regarded as having the institutional objectivity and impartiality necessary to be considered an ‘officer authorized by law to exercise judicial power’ within the meaning of article 9(3) of the Covenant.”105

Absence of judicial oversight over charges

The powers of the prosecutor to determine and file charges without judicial oversight deprive detainees of an essential safeguard against arbitrary arrest. Jordan’s criminal procedure law does not require that evidence meet a particular standard before charges are brought against a suspect. The prosecutor brings charges and at the same time orders suspects detained for up to fifteen days; in felony cases this is renewable up to six months.106 The basis of the charges is not subject to review by an independent tribunal during an ongoing investigation.

Charges were brought in seven of the sixteen cases investigated by Human Rights Watch. In three of these seven cases the detainees told Human Rights Watch that they were not made aware of the evidentiary basis for the charges against them. “The prosecutor just verified my name and status, read out the charges, and asked if I needed a lawyer, before the GID officers outside took me back to my cell,” Mustafa R. said.107

The GID arrested Mahdi Ahmad Zaidan’s four sons on several occasions. He described his family to Human Rights Watch as very religious. He said that they had at one point belonged to a takfiri group and that he still held opinions opposed to state policies, but that they did not support or engage in violence.108 Thirty-three-year-old ‘Umar Zaidan spent three months in GID detention after his arrest in August 2004, and his younger brother Muhammad Zaidan spent two months there following his arrest the following month. Prosecutors charged the Zaidan brothers with conspiracy to commit a crime, without specifying the crime in question.109 Mahdi Zaidan said his sons were told after months in detention, “Just sign your confessions.”110

The GID had arrested his son `Umar ten times, Mahdi Zaidan said, sometimes also on suspicion of lèse majesté.111 Over the years, he said, the authorities never charged any family member with a crime and they never faced trial.112 Following their arrest in August and September 2004, the GID released both `Umar and Muhammad around November 2004 without going to trial.

Defense lawyer Samih Khrais told Human Rights Watch that 95 percent of the evidence for the prosecution’s case typically rests on confessions alone. The permitted seven-day period of detention before charging a suspect (which, as noted above, is often breached) gives the GID ample opportunity to extract confessions under duress, because in practice the GID keeps the detainee in solitary confinement during that period and he or she is unable to appoint a lawyer or contact his or her family or consulate (if not Jordanian). Article 63 of Jordan’s Criminal Procedure Code obliges the prosecutor to alert a suspect of “his right not to respond to [the charge] unless in the presence of a lawyer.” If he declines to appoint a lawyer or if the lawyer fails to appear within twenty-four hours, however, “the investigation continues in his absence.” Investigators may start questioning the suspect “before [the suspect] has called a lawyer” in “urgent cases for fear of losing evidence.”113

Some provisions in Jordan’s Penal Code are so vague that prosecutors can construe criminal charges against suspects based on scant evidence. Article 107, for example, defines conspiracy as “an agreement between two or more persons to carry out a crime by specific means.”114 Without independent judicial oversight to examine evidence in order to determine whether the grounds for detention are reasonable, charging a suspect risks becoming a mere formality for continued detention.

Detainee Abu Muhammad al-Maqdisi is an influential salafi scholar with a history of arrests and convictions; his followers included Abu Mus`ab al-Zarqawi. On December 27, 2004, the State Security Court found al-Maqdisi (whose real name is Issam Muhammad al-`Utaibi al-Barqawi) not guilty of charges of plotting to attack the U.S. embassy and other targets. The authorities did not free al-Maqdisi until June 28, 2005, however, when they allowed him to return to his home in Zarqa.

According to his son, Muhammad, the authorities put no restrictions on al-Maqdisi regarding media interviews following his release. In a telephone conversation with the GID after his release, al-Maqdisi told Abu Haitham, his GID interrogator, that he would be giving an interview to the Al-Jazeera satellite television station, his son told Human Rights Watch.115 The GID responded that they preferred he give an interview to another station, but al-Maqdisi said he intended to go ahead with the Al-Jazeera interview, which took place on the evening of July 5, 2005.116 A few hours later, just after midnight, GID officers arrested him without a warrant.117 Muhammad told Human Rights Watch that his father had been successively moved to several police stations, from Jarrash to al-Bayadir, before being returned to the central GID detention facility.118

According to Muhammad, GID officials told al-Maqdisi, “The court may have freed you, but we didn’t!”119 In a press conference, then-Deputy Prime Minister Marwan al-Muasher said that al-Maqdisi had been rearrested on charges of conspiracy after making telephone contact with what al-Muasher said were terrorist groups in Jordan and abroad. Al-Maqdisi’s family allege that officer `Ali Burjaq of the GID told them on a visit to the detention center on July 8 that the arrest came as a result of the Al-Jazeera interview and that, as of September 2005, prosecutors had not filed charges.120 As of this writing, Abu Muhammad al-Maqdisi had remained in solitary confinement at the GID detention facility for over a year.121

In another instance of basing charges on vaguely worded law, the SSC prosecutor charged Mustafa R. with “breaching the security of the state.” The rubric of “breaches of state security” in the Penal Code contains a number of articles, including the crime of terrorism. Article 147 defines terrorism as:

The use of violence or threat of violence, regardless of its motives or purposes, to carry out an individual or collective act aimed at disturbing public order or endangering public safety and security where such is liable to spread alarm or terror among the public or jeopardize their lives and security or cause damage to the environment, public facilities or property…122

Prosecutors charged Mustafa R. apparently on the sole basis of what they considered to be his unconvincing explanation for why he wanted to go to Iraq. His attempt to enter Iraq raised suspicion at the border, where the GID turned him back on August 20, 2004, ordering him to report to the GID central station in Amman after his return. He returned in a taxi on August 21 and presented himself the next day. A GID officer issued an arrest warrant for his detention on the spot.

The GID waited one month after arresting Mustafa to search his house. Mustafa told Human Rights Watch that during the first two weeks of detention, his interrogators were mostly interested in learning the names of family members and mosque prayer leaders. He said neither interrogators nor the prosecutor presented any evidence to shed doubt on his claim that he was going to Iraq to find work as an engineer.123

The prosecutor also did not specify which alleged planned acts justified charging Mustafa R. with “breaching the security of the state.” Mustafa R. spent two months incarcerated in the central GID facility before the prosecutor dropped charges and released him.

           

House searches

Jordan’s Criminal Procedure Code permits entry into and search of a person’s house if he or she is suspected of a crime, and in cases of hot pursuit.124 Jordan’s constitution stipulates that “Dwelling houses shall be inviolable and shall not be entered except in the circumstances and in the manner prescribed by law.” The law, however, is lax about the need for a search warrant. Article 94 of the Criminal Procedure Code allows police officers to search a house if accompanied by the mukhtar – a respected community or village head who serves as an interface between local citizens and the authorities – or by two local residents. The article does not explicitly mention the need for a search warrant in those cases. Article 83 of the Criminal Procedure Code requires the presence of the mukhtarif the suspect himself is not present.

In nine of the sixteen cases that Human Rights Watch investigated, the GID carried out house searches. Former detainees or family members said that the officers confiscated mainly books and videotapes. During six house searches, local police accompanied the GID officers. Two former detainees confirmed that the mukhtar was present during the searches and signed the list of confiscated items as a witness.125

In four cases, family members or former detainees said that GID officers asked them to sign a list of confiscated items.126 Isma`il `Abd al-Rahman told Human Rights Watch that GID officers did not give him time to read the search warrant or the list of confiscated items after they arrested his son `Abd al-Karim Isma`il `Abd al-Rahman, a student, in the early hours of July 6, 2005. Isma`il `Abd al-Rahman said that the GID and police wrecked his house, turning everything upside down, without telling him what they were looking for or, for that matter, appearing to look for anything in particular. “They beat me, and later the officer in civilian clothes showed me a piece of paper and told me to sign it, explaining that it said ‘we searched your house and didn’t break anything.’ I was scared and never had time to read it.”127 Article 96 of Jordan’s Criminal Procedure Code allows, but does not require, the suspect to obtain a signed copy of the list of confiscated items.128

Yasir Abu Hilala, Jordan bureau chief for Al-Jazeera, told Human Rights Watch that the GID arrested him in his flat on November 12, 2002, carrying a blank search warrant that the officer filled out later. The GID freed him a short while later without charge. Abu Hilala told Human Rights Watch that he believed the purpose of the arrest operation had been to confiscate footage he had taken depicting unrest in the southern town of Ma`an, to prevent it from airing.129

Illegal possession of firearms or explosives is an offence that falls within the jurisdiction of the State Security Court and which GID officers investigate. In three cases, GID officers said they were looking for firearms or explosives, and families reported that the officers began threatening suspects when their initial search proved fruitless. One former detainee told Human Rights Watch: “They came at night and looked everywhere but didn’t find anything. The officer then said that there would be serious consequences if I did not tell them the location of my hidden cache.”130 He said that the GID never found firearms or explosives. In another case, GID officers during a house search found a pigeon shooting rifle belonging to Muhammad `Ali Shaqfa’s father. Shaqfa told Human Rights Watch:

I said to them: “If you don’t find anything, that’s it.” The police officer said “OK,” but one of the GID officers said, “We’ll take you anyway.” Then we all sat around and the GID officers said to me: “Muhammad, it will be easier for you if you cooperate. Now, where are the Kalashnikovs?”131

Incommunicado detention

Jordanian authorities do not apply the country’s law on prisons to the GID facility.132 The continuing confusion over what legal regime applies to the GID detention facility, and why the regular prison service apparently does not supervise that facility, has permitted GID officers to operate in effective secrecy and maintain a practice of incommunicado detention.

Article 13 of the current law on prisons, issued in 2004, grants detainees a number of important rights that are protections against incommunicado detention, such as informing one’s family of one’s whereabouts, speaking to a lawyer, receiving visits from lawyers, family or other persons, and communicating with friends and family.133 The law does not specify any differences in exercising these rights between those held without charge, those in pre-trial detention, or those who are serving a prison sentence.

During the seven-day detention period that the State Security Court law permits before a detainee of the GID should be charged, the GID prohibits detainees from notifying anyone about their arrest or where they were taken. Suspects do not have the opportunity to speak with a lawyer, to receive family or consular visits, or to remain silent and not to incriminate themselves.  

Moreover, the GID keeps some detainees in incommunicado detention at its facility for prolonged periods of time (in three cases we investigated, incommunicado detention lasted several months). Mustafa R. spent about two months at the GID central detention facility before his father was able to visit him. The GID detained `Adnan Muhammad Sadiq Abu Nujila incommunicado for five to seven months after he was returned from Azerbaijan (the family cannot be sure of the time, because no one informed them when `Adnan was returned from Azerbaijan). Muzaffar Samih Ahmad al-Jawabira also spent about three months in detention before his father was able to visit.134

The practice of incommunicado detention is at odds with human rights law. In the first instance, incommunicado detention facilitates torture. Sir Nigel Rodley, then-UN special rapporteur on torture noted in 1999:

Based upon information received over the course of the past seven years, the Special Rapporteur is of the view that incommunicado detention is the most important determining factor as to whether an individual is at risk of torture. As such, the Special Rapporteur reiterates the recommendation of his predecessor and urges all States to declare incommunicado detention illegal.135

Allegations of torture in GID detention are discussed below.

Incommunicado detention also violates the right of a detainee to meet with his or her lawyer to be able to adequately prepare his or her defense.

In 1994, the UN Economic and Social Council presented a “report on existing international norms and standards pertaining to the right to a fair trial.”136 Those standards guarantee to all detainees “the right to receive visits from counsel, persons assisting counsel, family, friends and others at regular intervals under necessary supervision.”137

Access to legal counsel

Jordanian law permits detainees to seek legal counsel not at the point of arrest, but only at the point of being charged. According to Jordan’s Criminal Procedure Code, a detainee has “the right not to reply [to the charges] unless in the presence of a lawyer,” although the prosecutor may proceed with the investigation in special circumstances.138

Jordanian prosecutor Sabr al-Rawashda confirmed to Human Rights Watch that detainees “have no right to an attorney” before meeting with the prosecutor and being charged with a crime.139 Defense lawyer Samih Khrais, who regularly defends suspects before the State Security Court, also confirmed that the GID does not allow lawyers to visit clients in the first seven days of detention. None of the former detainees with whom Human Rights Watch spoke had asked for a lawyer at the time of arrest, but this appears to have been less about awareness that they had no right to one until charged than the belief that they were merely going to “answer a few questions” to clear up a misunderstanding and would be freed shortly.140

The ICCPR specifies a defendant’s right to be informed of charges, to have legal assistance, and not to incriminate him or herself. Principle 93 of the Standard Minimum Rules also provides that:

For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.141

Jordanian law is thus out of step with international standards of human rights law that affords detainees the right of access to legal counsel as soon as reasonably possible from the time of detention.

Prosecutor Sabr al-Rawashda, who works at a court of first instance in Amman, told Human Rights Watch that the overwhelming majority of detainees do not exercise their right to appoint a lawyer when charged with a crime.142 Some former detainees told Human Rights Watch that this was because they could not afford one.143 When the case goes to trial, al-Rawashda said, the court appoints a lawyer in felony cases, but for misdemeanors, which can be tried before the SCC, there is no such requirement.144 However, lawyer Zuhair Abu al-Raghib complained to us of the general lack of access to detainees at the GID facility even after they have been charged: “It is difficult for us lawyers to visit the GID facility, although it is guaranteed in the criminal procedure law.”145 Where the GID prevents lawyers from seeing their clients after the prosecutor has charged them, it would appear that it does so in violation not just of international standards, but of Jordanian law. (For al-Rawashda’s comments on the consequences of the lack of contact with lawyers for the reporting of abuse and securing redress, see chapter V, below.)

Family notification, and communication with the outside world

Jordan’s Criminal Procedure Code requires the arresting officer to prepare a signed protocol and to inform the suspect or his lawyer about the time he was taken into custody and the place of detention or imprisonment.146 Article 13 of the Law of Correctional and Rehabilitation Centers states that inmates have the right to “3. inform his/her family of his/her location; 4. correspond with family and friends and have facilitated means of communication; 5. receive visitors, unless there be a motive-based decision taken by the Director of the Centre prohibiting these visits.”147

The GID, however, does not permit detainees to communicate promptly with family members, even after they request to do so. In the cases that Human Rights Watch investigated, GID officers consistently failed to allow the arrested person to notify his family at the point of arrest, from the initial place of detention, or promptly after transfer to the GID central facility in Amman. Fahmi S. told Human Rights Watch that during his twenty days of detention by the GID he received no visits, and that officers barred him from making telephone calls.148

Similarly, the GID makes no effort itself to inform the families of detainees, and in some cases will not tell families the truth that it is holding the individual the family has come seeking. In Muhammad `Ali Shaqfa’s case, GID officials returned with him to search his flat, in the presence of the police and his father, before taking him away again, but in most other cases no family member witnessed the arrest. Family members told Human Rights Watch that they learned of the arrest of their sons or husbands by word of mouth, and that their initial searches for them at the local police station, the governor’s office, the local intelligence office and even the central GID facility proved fruitless.

In early 2003, officers at the central GID facility threatened the father of Ziyad A., whom the GID had arrested shortly before, saying, “We do not have him, but go ahead and look for him. But if you don’t find him, we will keep you here!”149 Shaikh Jawabira had a similar experience in March 2004 when he went looking for his son Muzaffar al-Jawabira. He told Human Rights Watch that he spoke with officials at the Rusaifa office of the GID, who denied having his son in custody. Muzaffar al-Jawabira’s brother Tariq, however, soon thereafter brought money for Muzaffar to the same local office. The officer in charge took the money with a promise to give it to Muzaffar al-Jawabira, who confirmed to Human Rights Watch that he had received some money.150

On July 7, 2005, Human Rights Watch met with Isma`il `Abd al-Karim `Abd al-Rahman at the offices of the Arab Organization for Human Rights in Jordan, where he had gone to seek help in finding his son, whom the GID and police had arrested the previous day. He had no way of getting in touch with his son or knowing where he was, although he suspected he might be at the GID central facility.

The U.N. Standard Minimum Rules for the Treatment of Prisoners require that “An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends.”151 The right to notify one’s family applies every time the detainee moves to another detention facility. The U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles) require that

 

Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.152

The Standard Minimum Rules require that the right of notification be available “immediately”; the Body of Principles sets an outer limit of not “more than a matter of days” before a detainee can exercise this right.153

The International Committee of the Red Cross conducts regular, unannounced visits to Jordanian detention facilities, including the GID facility, in order to monitor the treatment of detainees.154 The ICRC suspended such visits on a number of occasions when the GID did not grant it access to its facility or certain detainees. The organization only gradually secured access to the GID facility, negotiating first biweekly and then weekly access.155 An ICRC representative told Human Rights Watch that it has had regular access since October 2004.156

The young Jordanian Palestinian from the Schneller refugee camp said that the first person unaffiliated with the GID he saw was an ICRC representative; he could not recall how long into his detention that visit occurred. He had not been able to contact anyone in the outside world before that. He told Human Rights Watch that he thought the ICRC “only visits detainees who are innocent,” because he had the impression that the ICRC did not visit all detainees at the GID facility.157 Two families told Human Rights Watch that they only learned of the detention of their male relatives at the GID facility after contacting the ICRC.158

According to family members, `Adnan Muhammad Sadiq Abu Nujila claimed that GID officers had hid him from the ICRC on two occasions in 2004.159 The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment requires that: “A detained or imprisoned person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with paragraph 1 of the present principle, subject to reasonable conditions to ensure security and good order in such places.”160 The GID’s failure to allow a detainee these rights would appear to violate Jordanian law as well as international human rights standards.

The family of `Adnan Muhammad Sadiq Abu Nujila also told Human Rights Watch that family visits had been called off after what they later learned were torture sessions. On one visiting day the GID told them that `Adnan “was not feeling well and did not want to see them.” The family also said that after the GID allowed them to visit `Adnan Abu Nujila him when he was re-arrested in August 2004, an officer stood directly behind him, occasionally putting an arm on `Adnan Abu Nujila’s shoulder.161




86 The UN Working Group on Arbitrary Detention, Fact Sheet No. 26, http://www.ohchr.org/english/about/publications/docs/fs26.htm (accessed March 26, 2006).

87 The family gave the date of the arrest, but said it did not know how `Adnan came to be in Jordan. Then-U.S. Secretary of State Colin Powell told the UN Security Council in February 2003 that `Adnan Muhammad Sadiq (Abu Nujila) had “graduated from Zarqawi's terrorist camp in Afghanistan, [and] tasked at least nine North African extremists in 2001 to travel to Europe to conduct poison and explosive attacks.” Speech to the UN Security Council, February 5, 2003, www.whitehouse.gov/news/releases/2003/02/20030205-1.html (accessed August 8, 2006). Andrew McGregor tried to dispel some of the allegations around `Adnan Abu Nujila’s activities, see Andrew McGregor, “Ricin Fever: Abu Musab Al-Zarqawi in the Pankisi Gorge,” Terrorism Monitor, vol. 2(24), Jamestown Foundation, December 16, 2004, http://Chechnya.Jamestown.org/email-to-friend.php?article_id=2369023 (accessed August 8, 2006). See also David Cloud, “Long In U.S. Sights, A Young Terrorist Builds Grim Résumé On Journey to Iraq, Zarqawi Forged Ties With al Qaeda, Attracted Own Followers; An Amputation in Baghdad,” Wall Street Journal, February 10, 2004.

88 Human Rights Watch interview with Ahmad Abu Nujila and Zakariyya Abu Nujila, brothers of `Adnan Abu Nujila, Zarqa, September 15, 2005.

89 Human Rights Watch interview with Ahmad Abu Nujila, Zarqa, September 15, 2005.

90 Ibid.

91 Human Rights Watch interview with Fahmi S., Amman, January 8, 2006.

92 Stress positions include remaining in an uncomfortable position for long hours, which produces excruciating pain. See Human Rights Watch, “'Stress and Duress' Techniques Used Worldwide,” A Human Rights Watch Backgrounder, June 1, 2004, http://hrw.org/english/docs/2004/06/01/usint8632.htm.

93 Human Rights Watch interview with Muhammad M., Amman, January 8, 2006.

94 Human Rights Watch telephone interview with Basim F.'s brother, Muhammad, Amman, November 15, 2005.

95 Human Rights Watch interview with Ziyad A., Rusaifa, September 13, 2005.

96 Human Rights Watch interview with Muhammad `Ali Shaqfa, Rusaifa, September 15, 2005.

97 Article 9.1 of the ICCPR states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.  

99 “[H]aving a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence … [What] may be regarded as ‘reasonable’ will ... depend upon all the circumstances,” European Court of Human Rights, Case of Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, Series A, No. 182, p. 16, para. 32. The Court went on to explain in the same case that “in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences, ... the ‘reasonableness’ of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the essence of the safeguard secured by Article 5 § 1 (c) is impaired... ” Both quotations taken from United Nations, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, (New York and Geneva: United Nations, 2003), Chapter 5: “Human Rights and Arrest, Pre-Trial Detention and Administrative Detention,” p. 174.

100 Art. 114.1, Criminal Procedure Code.

101 Art. 113, Criminal Procedure Code.

102 Art. 9.3, ICCPR. See also United Nations Office of the High Commissioner for Human Rights, Training Manual on Human Rights Monitoring (New York/Geneva: United Nations, 2001), Chapter IX: “Visits To Persons In Detention,” http://www1.umn.edu/humanrts/monitoring/chapter9.html (accessed August 9, 2006).

103 Arts. 122 and 123, Criminal Procedure Code.

104 The UN Human Rights Committee has held that: “the public prosecutor cannot be characterized as having the institutional objectivity and impartiality to be considered as an ‘officer authorized to exercise judicial power,’” and on that basis found a violation of Articles 9 (3) and (4) of the ICCPR. See Bandajersky v. Belarus Communication No. 1100/2002, April 18, 2006. This case follows a line of cases in which the Human Rights Committee also determined that a public prosecutor lacked institutional objectivity and impartiality to meet the requirements of Article 9 (See for example Kulomin v. Hungary Communication No. 521/1992, March 22, 1996; Platonov v. Russia, Communication No. 1218/2003, Views adopted on November 1, 2005; and recently Sulatanova v. Uzbekistan, Communication No. /915/2000, April 19, 2006). Article 9 of the ICCPR requires in paragraphs 3 and 4 that “.. anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power” and that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings … in order that a court may decide without delay on the lawfulness of his detention...”

105 UN Human Rights Committee, Communication No. 521/1992, Kulomin v. Hungary (Views adopted on 22 March 1996), in UN doc. GAOR, A/51/40 (vol. II), p. 81, para. 11.3, quoted in: United Nations, Human Rights in the Administration of Justice, p. 189. The Committee stated: “it is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with.” A European Court of Human Rights decision in 1998 clarified its understanding of the meaning of the independence required for a judicial review of detention: “the ‘officer’ must be independent of the executive and the parties… at the time of the decision on detention…: if it appears at that time that the ‘officer’ may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt.” European Court of Human Rights, Case of Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3298, para. 146.

106 Art. 114.1, Criminal Procedure Code.

107 Human Rights Watch interview with Mustafa R., Amman, September 20, 2005.

108 One son, Mahmud, still lives in Afghanistan, where he went in 1997; another son, Ibrahim, is currently detained in U.S. detention at Guantanamo after having been kidnapped by local Afghan militias and then sold to the Americans in December 2001. Human Rights Watch interview with Mahdi Zaidan, Irbid, September 22, 2005.

109 Ibid.

110 Ibid.

111 Art. 195, Penal Code.

112 Human Rights Watch telephone interview with Mahdi Zaidan, Irbid, July 10, 2006.

113 Art. 63, Criminal Procedure Code.

114 Art. 107, Penal Code.

115 Human Rights Watch interview with Muhammad al-Barqawi, Rusaifa, September 13, 2005.

116 Al-Maqdisi gave several interviews following his release. See Marwan Shahada and Maisara al-Shammari, “Al-Maqdisi to Al-Hayat: Bin Laden Rejected Zarqawi’s Request to Lecture his Followers Using My Books and Advised Abu Mus`ab to Avoid Killing Civilians or Hitting Churches or Shi’a Mosques”, Al-Hayat, July 10, 2005 (Arabic), http://www.daralhayat.com/special/dialogues/07-2005/Item-20050709-fc84176c-c0a8-10ed-00f8-0297dc320257/story.html (accessed March 28, 2006). See also transcript of Al-Jazeera program “Behind the News: The Arrest of Abu Muhammad al-Maqdisi,” July 28, 2005, http://www.aljazeera.net/NR/exeres/D2FA9B70-9DC0-4B6D-914B-41D2CE1EB679.htm (accessed May 10, 2006).

117 Human Rights Watch interview with journalist Rana Al-Sabbagh, who was present at the time, Amman, January 8, 2006.

118 Human Rights Watch interview with Muhammad al-Barqawi, Rusaifa, September 13, 2005.

119 Human Rights Watch interview with Muhammad al-Barqawi, Rusaifa, September 13, 2005.

120 Human Rights Watch interview with al-Maqdisi’s family, Rusaifa, September 13, 2005.

121 Human Rights Watch telephone interview with Muhammad al-Barqawi, Rusaifa, June 16, 2006.

122 Translation of Art. 147.1, Penal Code, amended October 2001, as it appears in Jordan’s Fourth Report to the United Nations Counter-Terrorism Committee, S/2005/162, March 15, 2005.

123 Human Rights Watch interview with Mustafa R., Amman, September 20, 2005.

124 Art. 81, Criminal Procedure Code.

125 Human Rights Watch interviews with Muhammad `Ali Shaqfa, Rusaifa, September 15, 2005; with Shaikh al-Jawabirah, Rusaifa, September 13, 2005; and with young Palestinian Jordanian, Schneller camp resident, name withheld by request, Rusaifa, September 14, 2005.

126 Human Rights Watch interviews with Isma`il `Abd al-Rahman, Amman, July 7, 2005; with Muhammad `Ali Shaqfa, Rusaifa, September 15, 2005; with Mustafa R., Amman, September 20, 2005; and with young Palestinian Jordanian, Schneller camp resident, name withheld by request, Rusaifa, September 14, 2005. Articles 32, 36 and 38, Criminal Procedure Code, require the suspect, the prosecutor and witnesses to confirm and sign for confiscated items.

127 Human Rights Watch interview with Isma`il `Abd al-Rahman, Amman, July 7, 2005.

128 Art. 96, Criminal Procedure Code.

129 Human Rights Watch interview with Yasir Abu Hilalah, Amman, September 11, 2005.

130 Human Rights Watch interview with young Palestinian Jordanian, Schneller camp resident, Rusaifa, September 14, 2005.

131 Human Rights Watch interview with Muhammad `Ali Shaqfa, Rusaifa, September 15, 2005.

132 As noted above, the Ministry of Interior in 1993 declared the “place of detention and investigation [at the GID] a prison.” Ministry of Interior, Declaration published on page 3930 of the Official Gazette, November 1, 1993.

133 Art. 13, Law No. 9, Centers of Reform and Rehabilitation (“Prison law”), Jordan, 2004.

134 Human Rights Watch interviews with Mustafa R., Amman, September 20, 2005; with the family of `Adnan Abu Nujila, Zarqa, September 15, 2005; and with Shaikh al-Jawabira, Rusaifa, September 13, 2005.

135 UN General Assembly, Fifty-fourth session, Agenda item 116 (a), Human rights questions: implementation of human rights instruments, “Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Submitted by Sir Nigel Rodley, Special Rapporteur of the Commission on Human Rights, in Accordance with General Assembly Resolution 53/139,” October 1, 1999, para. 42.

136 United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-sixth session, “The Right to a Fair Trial: Current Recognition and Measures Necessary for its Strengthening,” E/CN.4/Sub.2/1994/24, June 3, 1994.

137 Ibid., para. 45. f).

138 Art. 63, Criminal Procedure Code.

139 Human Rights Watch interview with prosecutor Sabr al-Rawashda, Amman, September 22, 2005.

140 Human Rights Watch interviews with Muhammad `Ali Shaqfa, Rusaifa, September 15, 2005, and Mustafa R., Amman, September 20, 2005.

141 Principle 93, United Nations Economic and Social Council, Standard Minimum Rules.

142 Human Rights Watch interview with prosecutor Sabr al-Rawashda, Amman, September 22, 2005.

143 Human Rights Watch interview with Shaikh al-Jawabira, Rusaifa, September 13, 2005.

144 Human Rights Watch interview with prosecutor Sabr al-Rawashda, Amman, September 22, 2005.

145 Human Rights Watch interview with Zuhair Abu al-Raghib, Amman, September 18, 2005.

146 Art. 100, Criminal Procedure Code.

147 Art. 13.3-5, Prison Law.

148 Human Rights Watch interview with Fahmi S., Amman, January 9, 2006.

149 Human Rights Watch interview with As`ad A., Zarqa, September 15, 2005.

150 Human Rights Watch telephone interview with Muzaffar al-Jawabira, Rusaifa, September 13, 2005.

151 Rule 92, Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

152 Principle 16, Body of Principles.

153 Principle 15, Body of Principles.

154 The ICRC does not accept conditions on its visits. Its own guidelines require that the ICRC have access at all times, unannounced, to all places of detention, to all prisoners, and to the entire facility. See International Committee of the Red Cross, “Visiting People Deprived of Their Freedom: Purpose and Conditions of ICRC Visits,” August 8, 2001, http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList265/929018E28243CCB0C1256B6600600D8C (accessed May 25, 2006). The ICRC also maintains a policy of confidentiality and shares its findings only with the administration of the concerned facility and with the government. In Jordan, the ICRC sends its reports to the prime minister and the king. Human Rights Watch interview with Adriana Alarcon Diaz, ICRC representative, Amman, September 10, 2005.

155 In its annual report for 2004, the ICRC in Jordan stated: “In late July the ICRC resumed visits to GID facilities after a three-month suspension owing to problems of access to certain detainees.”. In 2002, the ICRC reported: “On several occasions in the first half of 2002, incomplete notification and access problems led to a suspension of visits at GID places of detention. Visits resumed following discussions with the GID and the military prosecutor's office that resulted in the Jordanian authorities renewing their commitment to fully comply with established notification and access procedures. The ICRC continued to encourage the authorities to allow family visits to all detainees.” In 1998, the ICRC reported: “On 13 October 1997 the ICRC suspended its visits to the GID because its delegates were refused access to the detainees held there. Representations were made immediately at the highest level, and were repeated at the beginning of 1998. The ICRC was able to resume its regular visits to the GID on 11 February, apart from a hiatus from 11 May to 16 June.”

156 Human Rights Watch interview with Adriana Alarcon Diaz, ICRC representative, Amman, September 10, 2005. In accordance with its customary policy of addressing only government officials of the country concerned, the ICRC would not confirm allegations of torture at the GID facility to Human Rights Watch.

157 Human Rights Watch interview with young Jordanian Palestinian, Schneller camp resident, name withheld by request, Rusaifa, September 14, 2005.

158 Human Rights Watch interviews with young Jordanian Palestinian, Schneller camp resident, name withheld by request, Rusaifa, September 14, 2005, and Shaikh al-Jawabira, Rusaifa, September 13, 2005.

159 Human Rights Watch interview with the mother and brothers of `Adnan Abu Nujila, Zarqa, September 15, 2005.

160 Principle 26, Body of Principles.

161 Human Rights Watch interview with the mother and brothers of `Adnan Abu Nujila, Zarqa, September 15, 2005.