On May 7, the United States repatriated 11 U.S. citizens, including five children, and one foreign-born minor. They had been detained in northeast Syria, where around 56,000 Syrian and foreign prisoners from the U.S.-led coalition’s decade-long war with the Islamic State remain held by U.S.-backed armed groups, including the Syrian Democratic Forces (SDF). This was the “largest single repatriation…
This post was originally published on Latest – Truthout.
The so-called “war on terror,” initiated by the U.S. and its global allies in response to the 9/11 attacks in 2001, did not so much change the rules of warfare as throw them out of the window.
In the aftermath of 9/11 and the ensuing wars in Afghanistan and Iraq, the Geneva Convention on the treatment of prisoners of war was virtually abandoned when the U.S. and its allies detained hundreds of thousands of men, women and children, mainly civilians. The use of torture and indefinite arbitrary detention became defining features of the war on terror.
Intelligence yielded from the use of torture was not particularly effective, and experimentation on human subjects was an element of the process. Guantánamo Bay, which currently holds 36 prisoners, is viewed by many human rights defenders as a final remnant of the policy of mass arbitrary detention.
The little light shed on these practices has largely been the result of hard and persistent work by international and civil society organizations, as well as lawyers who continue to sue states and other parties involved on behalf of victims and their families, some of whom are still detained.
A report presented earlier this year by Fionnuala Ní Aoláin, the U.N. Special Rapporteur on counterterrorism and human rights, following up on a 2010 U.N. report on secret detention, found that the “failure to address secret detention” has allowed similar practices to flourish in North-East Syria and Xinjiang Province in China.
How to deal with arbitrarily detained alleged ISIS (also known as Daesh) militia supporters and fighters in Syria and Iraq is an issue that goes back to the Obama era, but gained traction in 2018-2019, when ISIS lost its last major stronghold and significant territory, leading existing detention camps, like Al-Hawl, to swell in size. Al-Hawl was set up as an Iraqi refugee camp by the U.N. in 1991 with capacity for around 15,000 people. In 2018, it held around 10,000 Iraqi refugees. The majority of the 73,000-plus residents of this camp since 2019 are women and children, around 11,000 of whom are nationals of countries other than Syria or Iraq, living in poor shelter, hygiene and medical conditions.
All are detained by the Autonomous Administration of North and East Syria (AANES) and the Syrian Defense Force (SDF), which are not state entities. Their efforts to investigate and prosecute possible ISIS fighters are still at the early stages, lack formal and widespread recognition and do not look at potential war crimes. With some prisoners detained for over six years, without charge, trial or formal identification, the situation is pretty much as it was in Afghanistan and Iraq.
According to Ní Aoláin, “No legal process of any kind has been established to justify the detention of these individuals. No public information exists on who precisely is being held in these camps, contrary to the requirements of the Geneva Conventions stipulating that detention records be kept that identify both the nationality of detainees and the legal basis of detention.”
She further states that, “These camps epitomize the normalization and expansion of secret detention practices in the two decades since the establishment of the detention facility at Guantánamo Bay, Cuba. The egregious nature of secret, incommunicado, harsh, degrading and unacceptable detention is now practised with impunity and the acquiescence of multiple States.”
In addition, around 10,000 men and 750 boys (of whom 2,000 and 150 are respectively not from Syria or Iraq) are held in some 14 detention centers in North-East Syria, accused of association with ISIS: “No judicial process has determined the legality or appropriateness of their detention. There are also reports of incommunicado detention.”
Efforts have been made, with varying success, to repatriate and release Iraqi refugees and Syrians internally displaced by the regional conflict: Around 2400 Iraqis have been repatriated over the past year or so.
European and other Western states were initially reluctant to repatriate their nationals — with former President Trump threatening to force them to — and some, such as the U.K., introducing measures to strip them of citizenship to prevent that. More recent efforts by European states have taken on a gendered approach, aimed at repatriating women and children in the camps. This approach, however, ignores the practice of the SDF to separate boys as young as 9 from their families and detain them, as a security risk, with men in prisons. Concern was only expressed during a prison break in early 2022 when it was feared these children would fall into ISIS’s hands, as though they were somehow safe with their original captors.
The gendered approach to repatriation of detainees plays into long-standing orientalist and imperialist views, framing Western powers as saviors of these women and children, whereas the men and boys left behind remain “ISIS fighters” without investigation and substantiation of this status.
In spite of the recent U.S. conviction of two former British ISIS fighters for their role in the kidnapping and deaths of Western hostages, the value of such a detention policy must be questioned. As in Afghanistan and Iraq, arbitrary detention and cruel punishment of hundreds of thousands of people, sometimes in conditions worse than those they are associated with, is unjustifiable.
Ní Aoláin’s report also found that no war on terror detainees have “received a complete and adequate legal remedy,” and the lack of due process has resulted in the continuing stigmatization and persecution of prisoners upon release from Guantánamo.
Two decades on, the absence of justice at Guantánamo remains a recurring theme. Prosecutors are now seeking a plea deal settlement with defense lawyers in the 9/11 case that would avoid trial — and thus torture revelations — and the death penalty, as the case continues to drag over a decade on.
The farce of “justice” is also amply demonstrated by the failure to release Majid Khan, who, following a plea bargain and several years of torture in secret CIA prisons, completed his sentence on March 1; the military jurors at his sentencing hearing decried the torture he faced and petitioned for clemency for him. However, he remains at Guantánamo as it is too unsafe for him to return to Pakistan and the U.S. has found no safe country for relocation. After being sued to take action, the U.S. Department of Justice has responded by opposing his habeas plea and claiming that he is still not subject to the Geneva Conventions.
The outcome of two decades of secret and arbitrary detention has been to deny justice to the victims of war crimes and terrorist acts, and create new victims — detainees and their families — who are also denied justice.
After two decades, the failure to close Guantánamo and end such secret and arbitrary detention and the secrecy that continues to surround them (such as the refusal to disclose the full 2014 Senate CIA torture report) are not errors or oversight but deliberate policy. It affords impunity for states and state-backed actors while tarring detainees with the “terrorist” label for the rest of their lives without due process, effectively leaving them in permanent legal limbo in many areas of everyday life.
A year after the U.S. withdrawal from Afghanistan, justice still evades the Afghan people. With the International Criminal Court (ICC) seeking to restart its investigation, but excluding the U.S. and its Afghan allies from its scope, effectively granting them impunity while focusing on the Taliban, “the ICC has so far come to represent selective and delayed justice to many victims of war in Afghanistan,” according to Shaharzad Akbar, former chair of the Afghanistan Independent Human Rights Commission. In addition, “a year after the withdrawal of international forces and many ‘lessons learned’ exercises, key troop contributing countries such as the United States, the U.K., and others in NATO are yet to reflect on the legacy of impunity they left behind.”
Addressing her report to the U.N. in April, Ní Aoláin stated, “It is precisely the lack of access, transparency, accountability and remedy that has enabled and sustained a permissive environment for contemporary large-scale detention and harm to individuals.”
Ní Aoláin expresses concerns in her report over the “lack of a globally agreed definition of terrorism and (violent) extremism, and […] the widespread failure to define acts of terrorism in concrete and precise ways in national legislation.” The vague definition has meant that any form of dissent and resistance against the state can effectively be labelled terrorist activity.
The focus on Guantánamo and mass detention of alleged terrorism suspects has drawn the attention away from the carceral practices of states. Torture, lengthy solitary confinement, rape, and other prisoner abuses in federal jails has not prompted the same criticism or action. The focus on ISIS prisoners also draws away attention from the mass detention and abuse of those incarcerated in Syrian prisons.
At the same time, mass arbitrary and secret detention of alleged terrorists has helped to justify the expansion of the prison-industrial complex, with the involvement of private contractors. Over the past two decades, the use of torture has grown worldwide. Perhaps most worrying has been the boom in the mass arbitrary detention and abuse of men, women and children worldwide without due process and few legal rights known as immigration detention, with the reframing of migration and asylum as a security issue over the past two decades.
That such reports and monitoring of the situation continue at the highest level and by civil society organizations means that the prisoners have not been obscured and forgotten or their situation normalized as much as the states involved would like them to be. The need for justice for all victims is on the path to any kind of peace, and thus it remains essential to keep pressing and supporting Ní Aoláin’s call for “access, transparency, accountability and remedy.”
This post was originally published on Latest – Truthout.
Eleven international human rights organizations have issued a statement calling on the Sri Lankan government to “immediately and unconditionally” release human rights lawyer Hejaaz Hizbullah, who has been detained for 15 months without trial, as well as other prisoners denied due process under the repressive Prevention of Terrorism Act (PTA). The groups also call for the wholesale repeal of the PTA.
The PTA grants the Sri Lankan authorities sweeping powers to detain individuals arbitrarily for up to 18 months without charge or trial. Used to stifle dissent, it is disproportionately used against ethnic and religious minorities in the country, particularly Tamils and Muslims. A 2020 report found that some prisoners are remanded for as long as 20 years in some cases. Allegations have also been made of the torture and poor treatment of detainees.
Hizbullah is a vocal critic of the government and one of the lawyers who challenged the dissolution of the parliament in 2018 in the Sri Lankan Supreme Court. He has also worked as counsel for the attorney general’s department. Last month, Amnesty International recognized him as a prisoner of conscience.
“Since the Sri Lankan authorities have so far been unable to show any evidence of wrongdoing, it appears he is being targeted solely for exercising his right to freedom of expression,” human rights groups wrote in the letter issued last week.
Like other states, Sri Lanka has used the COVID-19 pandemic as a pretext to crack down on dissidents and civil liberties. Sri Lankan authorities arrested six members of the Muslim community shortly after passing a controversial ban in March 2020 on Muslims burying their COVID-19 dead that forces them to cremate bodies instead.
Hizbullah was arrested at his home on April 14, 2020, a day after he had written with others to the Sri Lankan government against the ban, calling it a serious violation of religious freedom. Officials later accused him of involvement in the 2019 Easter Sunday bombings that targeted churches and luxury hotels, killing more than 250 people and injuring hundreds of others.
While there have been no prosecutions over the bombings over the past two years, the Sri Lankan government has instead used the tragedy to ramp up anti-Muslim and anti-minority rhetoric, a useful distraction to neoliberal policies in South Asia. Such scapegoating facilitated Sri Lankan President Gotabaya Rajapaksa’s win in the November 2019 election, followed by the victory of his brother, Mahinda Rajapaksa, as prime minister in the 2020 election. Both men are controversial figures with ties to the country’s long-running civil war.
Hizbullah has not had a single opportunity to challenge the ever-changing claims against him in the past 15 months. He was initially accused of “aiding and abetting” the Easter Sunday bombers and engaging in activities deemed “detrimental to the religious harmony among communities.” This was on the tenuous basis of his connection to his client, Mohamed Ibrahim, the father of two of the bombers and with whom Hizbullah served on the board of a children’s charity. The claim has since been withdrawn.
In February 2021, Hizbullah was brought before the court briefly and told he would be charged with “causing communal disharmony” under the PTA on the basis of an extremist speech he is alleged to have made at a school connected to the charity.
Formal charges were pressed in early March on the basis of a single statement made by one pupil at the school. Other pupils and teachers have alleged they were forced to make statements against Hizbullah, whom they do not know, to the police. Some have since filed complaints against the police, as the children were reportedly questioned without a parent or guardian present. As early as July 2020, Amnesty International expressed that it “extremely concerned that the case and evidence against Hizbullah may now be subject to fabrication.”
Throughout his detention, he has been denied due process rights. His detention order under the PTA was signed by the President Rajapaksa, even though only the Minister of Defence has the proper authority to do this. A habeas corpus petition made on his behalf found that, “Authorities searched Hizbullah’s legal office, opened files, and ‘perused his briefs and professional work related files.’” His 90-day detention order was extended on October 14, 2020, but he was not brought before the court. A hearing scheduled for October 28 was delayed until February because of the pandemic.
He was finally able to appear in court on February 18, 2021, but hearings scheduled for March and April were also cancelled, and he has since not been able to return to court to challenge the charges against him. He has also been denied confidential and sufficient access to his lawyers and family. In December 2020, he was granted confidential access to his lawyers for the first and only time following a court order.
No credible connection has ever been established linking him and “terrorist activity.” This, “combined with the repeated changes in the allegations,” human rights organizations write, “leads us to believe the allegations against him are unsupported by any credible evidence.”
Silencing Hizbullah, a respected legal advocate for the rights of Sri Lanka’s Muslims and other minorities who has chosen the courts as his battleground to fight injustice, does not simply silence one person; it is a warning to Sri Lanka’s Muslim and other marginalized communities to keep quiet and not assert their lawful and legal rights in the face of a rapidly deteriorating situation for all ethnic and religious minorities.
In May 2020, Ahnaf Jazeem, a Tamil poet and teacher, was also arrested under the PTA after an anthology of poetry he had written was allegedly found at the school associated with the allegations. He has never been charged and was denied access to legal representation for 10 months after his arrest. He has reportedly been subject to torture and other forms of degrading and inhuman treatment.
In spite of commitments and pledges made by Sri Lanka to amend the PTA, in March, new regulations on “de-radicalization” were passed under it, “which allow for the arbitrary administrative detention of people for up to two years without trial.” According to the International Commission of Jurists, “The new regulations are likely to be used as a bargaining tool where the option is given to a detainee to choose between a year or two spent in ‘rehabilitation,’ or detention and trial for an indeterminate period of time, instead of a fair trial on legitimate charges.”
Calls for the release of Hizbullah and Jazeem have been made from various quarters: human rights organizations, legal organizations and writers’ organizations. More recently, political organizations such as the United Nations Human Rights Council and the European Union have added their voices, particularly in reference to repealing the PTA. The U.S. ambassador to Sri Lanka has also called for their release and the repeal or amendment of the PTA.
You can take action for Hejaaz Hizbullah with Amnesty International here, and if you are in the U.S., here.
This post was originally published on Latest – Truthout.
United Nations human rights special rapporteurs expressed serious concerns on July 2 about the “the imminent forced repatriation of former Guantánamo detainee Ravil Mingazov from the United Arab Emirates [UAE] to Russia, saying he faced substantial risk of torture and ill-treatment upon his return.”
One of the last prisoners to be released the day before Obama’s presidency ended in 2017, and one of 23 prisoners transferred to the UAE, Mingazov is one of 19 former prisoners who remain there, along with 18 Yemenis. In a July 2020 letter to the UAE government, which has received no response, the experts expressed concerns about the safety of the former prisoners and their conditions, as they remain in detention and largely without access to family, lawyers and independent medical care — in some cases, over six years after their transfer — and the secret terms of the assurances given to the U.S. in the resettlement agreement.
These concerns were followed in October 2020 by calls to halt the potential forced and unlawful repatriation of the 18 Yemenis. As concerns these men, the experts stated, “While we welcome the Government’s decision not to repatriate these Yemeni nationals we continue to be gravely concerned at their indefinite detention at an undisclosed location, without charge or trial, with extremely restricted family contact, no legal representation and recurrent periods of prolonged solitary confinement.”
On the other hand, the experts are now concerned that “Mr. Mingazov has been subjected to continuous arbitrary detention at an undisclosed location in the UAE, which amounts to enforced disappearance [… and] risks being forcibly repatriated to Russia despite the reported risk of torture and arbitrary detention based on his religious beliefs.”
In recent weeks, the Russian authorities have visited his family home in preparation for his repatriation. The experts have said, “Any repatriation process happening without full respect for procedural guarantees, including an individualized risk assessment, would violate the absolute prohibition of refoulement.” His family have not received any official information about his planned repatriation.
One of eight Russian nationals held at Guantánamo, Mingazov was the only one not to be returned to the Russian Federation in 2004. Like the others, he had fled religious persecution in his homeland and insisted he should not be returned there. The seven men who were made to return in 2004 have faced ongoing persecution, arbitrary detention, torture, spurious charges and one was shot dead by security officers in the street in 2007.
Although in June, Russian President Vladimir Putin attacked the U.S. for the continuing human rights abuses and lawlessness at Guantánamo, the risk of torture, persecution and forced repatriation to Russia remains quite real. In February, the European Court of Human Rights found the Russian authorities guilty of torture, forced confessions and unfair convictions in the cases of a number of Muslim men from the North Caucasus. In April, a number of human rights organizations condemned France following the forced deportation of a Chechen asylum seeker, a victim of torture and a witness in a torture investigation against the Chechen authorities, in contravention of a court order and international law, to Russia, where he was abducted two days after his deportation, and where he remains “at high risk of torture.”
Mingazov’s situation means he is essentially in the same position in which he found himself in 2016 when the periodic review board at Guantánamo Bay cleared him for release to the UAE: between a rock and a hard place. He has simply moved from indefinite arbitrary detention at the hands of the U.S. to detention for the past four years at the hands of the UAE sanctioned by the U.S. The threat of repatriation to the Russian Federation has long been there too.
In 2016, however, Mingazov had one other potential option. His ex-wife and teenage son are refugees in the United Kingdom. His lawyers applied for him to join them but this was turned down by the close U.S. ally. In a question in parliament by MP Tom Brake days before Mingazov was sent to the UAE, the British government, while refusing to comment on any asylum claim, admitted that, “The Government received a request from the U.S. Government to allow the transfer of Ravil Mingazov from the detention facility at Guantanamo Bay to the UK. After careful consideration, the Government declined this request.” Since the U.S. could not rely on allies who claim to uphold human rights, men like Ravil Mingazov, who were never charged or tried at Guantánamo, found themselves “resettled” in further uncertainty and sometimes persecution in third states.
Along with the death in March 2021 of former Tunisian prisoner, Lotfi Ben Ali, who was released in 2014 to Kazakhstan, which later expelled him, and who died in Mauritania suffering from multiple medical problems, Mingazov’s case raises important questions for the Biden administration’s stance on Guantánamo.
Typically, the U.S. has chosen to wash its hands of prisoners once they are transferred, even though it continues to enforce close surveillance of them, regardless of the conditions — arbitrary detention, harassment by the authorities, poverty, homelessness — that they may find themselves in. Nonetheless, as survivors of torture, the men have a right to rehabilitation.
In Mingazov’s case, the Biden administration must take immediate action to remedy what has been almost two decades of torture and indefinite arbitrary detention by intervening and ensuring that he is not subject to forced repatriation to the Russian Federation, and if he cannot live in freedom and humane conditions in the UAE, to ensure his transfer to a country where he can.
There has been much optimism over the Biden administration and its reported stance on Guantánamo. Yet, amid calls to reinstate the measures once used by the man to whom he served as vice president, there must be consideration of the consequences of Obama’s tactics, of which both these men, who were transferred by his administration, are victims. Many of the 197 prisoners Obama resettled in third states were often also transferred under dubious trade and diplomatic arrangements and with questionable assurances given by states in return.
Almost 20 years on, although 40 prisoners remain at Guantánamo, after a peak of almost 800, the impact of Guantánamo detention on the individuals and communities affected is seldom taken into consideration unless it can be used as an excuse for further belligerence, extralegal detention elsewhere or to justify further human rights abuses by the U.S. and its allies.
This post was originally published on Latest – Truthout.