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Internal Communication Clearance Form 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 terrorism and the Special Rapporteur on torture 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. 2 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). 3 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.
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