NATIONS UNIES UNITED NATIONS HAUT COMMISSARIAT DES NATIONS UNIES OFFICE OF THE UNITED NATIONS AUX DROITS DE L’HOMME HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES DU SPECIAL PROCEDURES OF THE CONSEIL DES DROITS DE L’HOMME HUMAN RIGHTS COUNCIL

Mandate of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering and the Special Rapporteur on and other cruel, inhuman or degrading treatment or punishment.

REFERENCE: AL Terrorism (2005-4) G/SO 214 (53-24) USA 5/2013

3 June 2013

Excellency,

We have the honour to address you in our capacities as Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pursuant to Human Rights Council resolution 22/8 and 16/23.

In this connection, we would like to bring to your Excellency’s Government’s attention information we have received concerning the alleged torture and ill-treatment of Mr. Shawki Ahmad Sharif Omar by United States of America (US) officials in Iraq, while being detained in US-controlled facilities at an unknown place two weeks after arrest, then in Camp Cropper, the US army base Camp Bucca close to Umm Qasr in the south of Iraq and Abu Ghraib Prison.

According to the information received:

Mr. Shawki Ahmad Sharif Omar, born in 1961 in Kuwait, with Jordanian and US citizenship, took up residence in the US in 1980 and studied mechanical engineering. After the US invasion in Iraq, he reportedly left for Iraq, hoping to find a well-paid job in the context of the efforts to rebuild the country’s infrastructure. He lived in Baghdad in Al Zayouna district, behind Al Rubiay Street. It is reported that in October 2004, Mr. Omar was arrested along with his then pregnant wife by US soldiers at their home, reportedly as the result of an anonymous denunciation. Subsequently, he was allegedly held incommunicado for two weeks. It is reported that his family was given no information about his fate or whereabouts. It is also reported that Mr. Omar has never been able to establish where he was taken during this period. Mr. Omar later reported that he had been held in a tiny room for about a week before interrogation sessions started. During the interrogation sessions, he was reportedly questioned about his alleged links to members of the Iraqi insurgent movement. He was repeatedly tortured and ill-treated by means, inter alia, of electric shocks and simulations of drowning. He was beaten in front of his wife and the US security personnel further threatened to rape his wife in front of him.

According to the information received, Mr. Omar’s wife was released after two weeks. Mr. Omar was transferred to Camp Cropper (today known as Karkh Prison) and then to Abu Ghraib Prison (reopened as Baghdad Central Prison) with a period of several months of detention in the US army base Camp Bucca close to Umm Qasr in the south of Iraq. Only months before the withdrawal of the US troops from Iraq, he was reportedly handed over to the Iraqi authorities in July 2011 and was taken back to Karkh Prison. Mr. Omar reportedly opposed this transfer to Iraqi jurisdiction for fear of torture and ill-treatment.

It is reported that while still being held in US-controlled facilities, he was sentenced to 15 years imprisonment for illegal entry to Iraq following an allegedly unfair trial before the Central Criminal Court in Iraq on 24 June 2010. The sentence allegedly relied on statements extracted under torture from him and third persons, some of whom reportedly later withdrew their statements made in court.

It is furthermore reported that although Mr. Omar was able to mandate a lawyer for his defence, he was only able to communicate with him sporadically, which made the preparation of the defence difficult. In addition, the hearing at which his sentence was pronounced was allegedly suddenly brought forward by three weeks without any explanation. The change in schedule was allegedly not communicated to the lawyer, reportedly making it impossible for him to attend the hearing.

Mr. Omar was reportedly able to submit an appeal and the Court of Cassation decided at the beginning of 2011 to reduce his sentence to seven years imprisonment. Although having completed the seven-year sentence in October 2011, Mr. Omar has not been released.

At the end of November and the beginning of December 2012, Mr. Omar was reportedly taken for further interrogations, again about his alleged implication in terrorist networks. He was allegedly subjected to severe beatings and was threatened by security personnel that he would be transferred to a secret detention facility for even harsher treatment.

On 21 May 2013, Mr. Omar was reportedly taken out of his cell and it is unclear where he is held at present. Family members contacted the prison authorities’ right after the transfer but were reportedly denied further information. Given the alleged previous torture, ill-treatment and threats voiced against Mr. Omar, concerns are raised that he is currently at high risk of torture and ill-treatment.

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Serious concern is expressed concerning the alleged torture and ill-treatment of Mr. Omar by US officials in Iraq, while being detained in US-controlled facilities. In a letter dated 30 November 2012 (USA 31/2012) to your Excellency’s Government the Special Rapporteur on torture along with the Chair-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism expressed deep concern about the lack of accountability that the United States government has shown with regard to the abusive interrogation techniques used in its foreign detention facilities. President Barack Obama condemned the use of these so-called “enhanced interrogation techniques” during his 2008 Presidential campaign and issued an Executive Order prohibiting the use of interrogation techniques that are not authorized by the American Army Field Manual shortly after his inauguration in January 2009 (Executive Order 13491). However, concern was and is still expressed that your Excellency’s Government, as well as those of States that have allegedly been complicit, has failed to properly investigate and acknowledge that some of the interrogation techniques used in its detention facilities might constitute a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As of today, no reply has been received from your Excellency’s Government.

Without in any way implying any conclusion as to the facts of the case, we should like to appeal to your Excellency’s Government to seek clarification of the circumstances regarding the case of Mr. Omar. We would like to stress that each Government has the obligation to protect the right to physical and mental integrity of all persons. This right is set forth inter alia in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), which your Excellency’s Government ratified on 8 June 1992 and the CAT, which your Excellency’s Government ratified on 21 October 1994.

In this context, we would like to draw the attention of your Excellency’s Government to paragraph 1 of Human Rights Council Resolution 16/23 which “Condemns all forms of torture and other cruel, inhuman or degrading treatment or punishment, including through intimidation, which are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified, and calls upon all States to implement fully the absolute and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or punishment.”

Furthermore, we would like to draw the attention of your Excellency’s Government to the 2006 Committee against Torture’s call on the United States to “rescind any interrogation technique, including methods involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to induce fear, that constitutes torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention” (CAT/C/USA/CO/2, para.24).

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In this context and with regard to the fact that the alleged torture and ill-treatment of Mr. Omar took place outside of the US territory, we would also recall that the Human Rights Committee has held that a State party can be held responsible for violations of rights under the Covenant where the violations are perpetrated by authorized agents of the State on foreign territory, “whether with the acquiescence of the Government of [the foreign State] or in opposition to it”. (See e.g. Lopez v. Uruguay, communication No.52/1979, CCPR/C/OP/1 at 88 (1984), paras. 12.1-12.3.). Furthermore, the Human Rights Committee has systematically recognized the extraterritorial application of the ICCPR for cases of effective control over foreign territory. In its Concluding Observations concerning the United States, the Committee recommended that “[t]he State party should review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.”(UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, para.10). In its General Comment No. 31, the Committee stated that ‘a State Party must respect and ensure the rights […] to anyone within the power or effective control of that state party, even if not situated within the territory of the state party.’ It continues by saying that ‘this principle also applies to those within the power or effective control of the forces of a state party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.’(General Comment No. 31, 29 March 2004, UN Doc. ICCPR/C/21/Rev.1/Add.13, para.10).

We would also like to draw the attention of your Excellency’s Government to article 2(2) of the CAT, which provides that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. In this regard, we note that paragraph 2 of Resolution 16/23 of the Human Rights Council, which “Condemns in particular any action or attempt by States or public officials to legalize, authorize or acquiesce to torture and other cruel, inhuman or degrading treatment or punishment under any circumstances, including on grounds of national security or through judicial decisions, and urges States to ensure accountability for all such acts;”

In this context, we would like to reiterate that the absolute and non-derogable prohibition of torture and other cruel, inhuman or degrading treatment or punishment does not cease to apply during armed conflict (see ICCPR, Art. 4 and 7). However, the requirements of the , which your Excellency’s Government ratified on 2 August 1955 are also relevant, because Mr. Omar was either a prisoner of war or a person detained on suspicion of activities hostile to the security of an occupying power. Under the Geneva Conventions, States must “take measures necessary for the suppression

4 of all acts contrary to [their] provisions” (see Geneva III, Art. 129; Geneva IV, Art. 146). Among other measures, this obligation entails the imposition of “effective penal sanctions” for grave breaches, including “torture or inhuman treatment”, and “willfully causing great suffering or serious injury to body or health” (see Geneva III, Arts. 129, 130; Geneva IV, Arts. 146, 147).

We would also like to draw your Excellency’s Government’s attention to the right to a fair trial as one of the fundamental guarantees of human rights and the rules of law embodied in article 14 of the ICCPR. In his report on the protection of human rights and fundamental freedoms while countering terrorism (A/63/223, para. 31), the Special Rapporteur on the promotion and protection of human rights while countering terrorism notes that article 14(3)(g) of the ICCPR is also invoked where “methods violating the provisions of article 7 (torture and any other inhumane treatment) are used in order to compel a person to confess or testify.” In that report, the Special Rapporteur further stresses that the practical implementation of article 14 (3)(g) of the Covenant is dependent on safeguards and procedural rules that ban in law and practice statements made involuntarily (A/63/223, para. 32).

With regard to the alleged secret detention and torture of Mr. Omar, we would like to draw the attention of your Excellency’s Government to the UN Joint study on global practices in relation to secret detention in the context of countering terrorism, in which the Special Rapporteur on the promotion and protection of human rights while countering terrorism recommended (A/HRC/13/42, para. 292 (e)) together with other experts that “Those individuals who are found to have participated in secretly detaining persons and any unlawful acts perpetrated during such detention, including their superiors if they ordered, encouraged or consented to secret detentions, should be prosecuted without delay and, where found guilty, given sentences commensurate with the gravity of the acts perpetrated”.

With regard to the alleged incommunicado detention of Mr. Omar upon arrest in October 2004, we would also like to draw the attention of your Excellency’s Government to paragraph 8b of Human Rights Council Resolution 16/23, which reminds States that “Prolonged incommunicado detention or detention in secret places can facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment, and urges all States to respect the safeguards concerning the liberty, security and the dignity of the person and to ensure that secret places of detention and interrogation are abolished.”

With regard to the transfer of Mr. Omar to the Iraqi authorities in July 2011, we would like to draw the attention of your Excellency’s Government to a letter sent to your Excellency’s Government on 26 November 2010 (AL USA 19/2010) and the concerns raised therein that thousands of Iraqi nationals who had been detained by US forces were handed over from US to Iraqi custody under a November 2008 US-Iraq agreement that contains no provisions for safeguarding the detainees’ physical and mental integrity after the transfer. Article 4(3) of the Status of Forces Agreement (SOFA), taking effect at

5 midnight on 31 December 2008, only states in broad terms that: “It is the duty of the United States Forces to respect the laws, customs, and traditions of Iraq and applicable .”

In its reply of 20 May 2011, your Excellency’s Government explained that the Obama Administration has made clear that it is committed to ensuring that all Department of Defense (DoD) detainee transfer practices comply with the laws, international obligations, and policies of the United States, including the prohibition on transfers of individuals to other nations to face torture. In this context, on 22 January 2009, President Obama issued Executive Order 13491, which established a Special Interagency Task Force to review U.S. practices of transferring individuals to other nations to ensure that such practices comply with the domestic laws, international obligations and policies of the United States, and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control. Your Excellency’s Government furthermore explained that the President has reviewed and accepted the recommendations of the Task Force and the Government is implementing the Task Force recommendations.

However, and in reference to new information received, indicating that Mr. Omar continued to be tortured and ill-treated after his transfer, we are concerned that the US authorities transferred Mr. Omar to Iraqi security forces who US authorities knew were continuing to torture and abuse detainees. We would like to recall the obligations of your Excellency’s Government under article 1 of the CAT which not only prohibits torture and requires States to refrain from acts of torture but also place an obligation to ‘prevent acts of torture’.

Additionally, we would like to point out that the United Nations Committee against Torture has stated that “if a person is to be transferred or sent to the custody or control of an individual or institution known to have engaged in torture or ill-treatment, or has not implemented adequate safeguards, the State is responsible, and its officials subject to punishment for ordering, permitting or participating in this transfer contrary to the State’s obligation to take effective measures to prevent torture in accordance with article 2, paragraph 1. The Committee has expressed its concern when States parties send persons to such places without due process of law as required by articles 2 and 3.” (General Comment No. 2, 24 January 2008, UN Doc. CAT/C/GC/2, para.19). In this context, we would like to recall that the absolute prohibition on or deportation to a place where a person might be tortured applies also to transfers of jurisdiction between States even within a single territory.

Consequently, we would like to draw the attention of your Excellency’s Government to article 12 of the CAT, which requires the competent authorities to proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under the jurisdiction of the State party, and article 7 of the CAT, whereby a State party, if it does not extradite a

6 suspected perpetrator of torture, shall submit the case to its competent authorities for the purpose of prosecution (the principle of aut dedere aut judicare). We would also like to draw your Excellency’s Government’s attention to paragraph 7b of Human Rights Council Resolution 16/23, which urges States “(t)o take persistent, determined and effective measures to have all allegations of torture or other cruel, inhuman or degrading treatment or punishment investigated promptly, effectively and impartially by an independent, competent domestic authority, as well as whenever there is reasonable ground to believe that such an act has been committed; to hold persons who encourage, order, tolerate or perpetrate such acts responsible, to have them brought to justice and punished in a manner commensurate with the gravity of the offence, including the officials in charge of the place of detention where the prohibited act is found to have been committed; and to take note, in this respect, of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the updated set of principles for the protection of human rights through action to combat impunity as a useful tool in efforts to prevent and combat torture.”

With regard to the allegation that Mr. Omar was only able to sporadically communicate with his lawyer, we would like to draw the attention of your Excellency’s Government to article 14(3)(b) of the ICCPR which proves that an accused must “have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.

Moreover, it is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters:

1. Are the facts alleged in the summary of the case accurate?

2. Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries carried out in relation to this case. If no inquiries have taken place, or if they have been inconclusive, please explain why.

3. What measure has your Excellency’s Government taken to investigate or prosecute members of the US forces who are alleged to have committed or been complicit in the commission of torture? Please provide the full details of any prosecution which have been undertaken with regard to the alleged torture of Mr. Omar while detained by US forces. Have penal, disciplinary or administrative sanctions been imposed on the alleged perpetrators?

4. Has compensation been provided to Mr. Omar or his family?

7 5. Please provide updated information on the Department of Defense investigations into allegations of detainee abuse involving US forces in Iraq.

6. What measures has your Excellency’s Government taken to address concerns that US forces handed over detainees to Iraqi custody despite a clear risk of torture? Equally, what measure has your Government taken to investigate and/or prosecute those authorities who instructed or allowed the US military personnel to transfer detainees to Iraqi jurisdiction in spite of knowing that those detainees would run a high risk of being tortured? Please provide examples of such measures.

7. Please explain why Mr. Omar was transferred to Iraqi jurisdiction in July 2011 despite a clear risk of torture? Please explain whether Mr. Omar’s transfer complied with Executive Order 13491 and what role, if any, did the Special Interagency Task Force play in his transfer.

8. In the letter of 20 May 2011, your Excellency’s Government explained that in certain instances where military commanders or judge advocates determined that it was necessary, they have requested and received specific humane treatment assurances from relevant Iraqi authorities. Please explain if such assurances have been requested in Mr. Omar’s case. If not, please explain why.

9. Please provide information on your Excellency’s Government policy and practice regarding cases, where transferred detainees get tortured and ill-treated by Iraqi forces despite the initial assessment of your Government prior to the transfer and the implementation of the Special Interagency Task Force recommendations.

We would appreciate a response within sixty days. Your Excellency’s Government’s response will be made available in a report to the Human Rights Council for its consideration.

While waiting for your response, we urge your Excellency’s Government to take all necessary measures to guarantee that the rights and freedoms of the above mentioned person are respected and, in the event that your investigations support or suggest the above allegations to be correct, the accountability of any person responsible of the alleged violations should be ensured. We also request that your Excellency’s Government adopt effective measures to prevent the recurrence of these acts. Please note that a similar communication has been addressed to Iraq by the pertinent Special Procedures according to their mandates and methods of work.

Please accept, Excellency, the assurances of my highest consideration.

Ben Emmerson

8 Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

Juan E. Méndez Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

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