Today, 25th of December 2017, the Supreme Military Court ruled on the case of “forming a terrorist cell and attempting to assassinate the Bahrain Defense Force Commander-in-Chief and committing other terrorist crime” as per said by Bahrain News Agency BNA.
18 persons are accused in this case, 10 of which are inside Bahrain, and 8 outside Bahrain.
The military court sentenced 6 of them to death, 15 years of imprisonment and citizenship revocation. The defendants are: Mubarak Adel Muhanna, Mohamed Abdulhasan AlMutghawi, Murtadha Majeed AlSanadi and Habib Abdullah Hasan AlJamri. Among them is also Sayed Alawi Hussain and Fadhel Abbas, who were forcibly disappeared for over a year.
The military court also sentenced another 7 persons to 7 years of imprisonment and citizenship revocation, where the rest 5 of themwere acquitted from any charges.
Bahrain declared martial law on March 15, 2011 to confront the popular movement, which started then to demand constitutional reforms and guaranteeing human rights. More than 340 civilians had been tried in military courts overpolitical cases and received harsh sentences, which ranged between five years’ imprisonment as the lowest sentence and life imprisonment or execution as the maximum sentence.
However, military sentences were canceled, and the cases were referred to civil criminal courts, based on what was stated in paragraph 119 of the report of the Bahrain Independent Commission of Inquiry (the BICI or better known as Bassiouni Commission).
The general principles of the Comparative International Law and the International Bill on the judiciary and trials warn of trying civilians in military courts or extending the application of special judicial laws in extraordinary cases.
It is well known and recognized that military courts are those which handle offenses committed by military personnel and associated with their military functions, and this is how the military court was described in the 2002 Constitution of the Kingdom of Bahrain, and particularly in section b of Article 105 thereof, which stipulates that,
“The jurisdiction of military courts shall be confined to military offences committed by members of the Defense Force, the National Guard, and the Security Forces. It does not extend to other persons except when martial law is declared and within the bounds prescribed by law.”
However, after the report of the Bahrain Independent Commission of Inquiry (BICI) was issued – especially paragraph 119, which led to consequent legal effects nullifying the sentences of military courts during the period of the declaration of martial law that was accompanied by human rights violations, and then repeating the trials in civil courts – Bahrain resorted to surpassing this constitutional prohibition by amending Article 105 of the Constitution on March 30, 2017, lifting the constitutional impediment of trying civilians in military courts.
This constitutional amendment resulted in an amendment to the Military Judiciary Law on April 18, 2017, i.e. after less than twenty days and on an expedited basis. This law expands to make the military judiciary specialized in prosecuting civilians accused in the political cases stated in the Bahraini Penal Code (general law).
The amendment to the Military Judiciary Law has given military courts permanent jurisdiction to try civilians in general and to try opinions in particular (which it describes as “anti-public policy”). Therefore, this law targets the political opposition with harsh and severe punishments that may reach execution. Also, this law does not abide by the International Bill, especially concerning the independence of the judiciary and guarantees of a fair trial.
The trial violated the principles of fair trials and the defendants were subjected to torture and ill-treatment. The recent constitutional amendment on military judiciary was used to expose the defendants to a trial that produced harsh sentences, and also to arbitrarily issue harsh sentences against at least three accused children. In addition, the judicial authority did not investigate the defendant’s allegations of torture and ill-treatment. Instead, the security authorities threatened the concerned parties to subject them to degrading treatment if the violations were revealed to the media or human rights organizations. Therefore, the judicial authority exploited the decision of secret hearings to commit violations and to enable those involved in torturing the defendants to avoid accountability.
The Bahraini society has a very painful experience with the military judiciary, anexperience that reflects the extent of the motive of revenge and the disregard for the law and the rights of the people to fair judiciary and trials. Therefore, the return to the military judiciary as constitutional courts confirms the military path that the Bahraini authorities are taking. This requires an intervention to prevent the continuation on this path, or direct and explicit pressure to stop trying civilians in military courts.
Based on the before mentioned, the government of Bahrain should:
1. Repeal the constitutional amendment and restore Article 105 of the Bahraini Constitution to its previous state to ensure that civilians are not tried in military courts.
2. Repeal Law No. 12 of 2017 amending the Military Judiciary Law, which allowed for the prosecution of civilians in military courts.
3. Adopt the Basic Principles on the Independence of the Judiciary adopted by the United Nations in 1985.
4. Open an independent investigation into all complaints of violations in this and other cases, particularly concerning complaints of torture and ill-treatment.
It is also necessary that:
1. The United Nations Secretary-General, the High Commissioner and Member States of the Human Rights Council urge the Government of Bahrain to adopt and implement the basic principles on the independence of the judges, to ensure that the Government of Bahrain refrains from trying civilians in military courts and amends the law.
2. The Special Rapporteur on the Independence of Judges and Lawyers submits a request to visit Bahrain and the Bahraini authorities are pressured to accept the request for a visit.
3. The mechanisms for the appointment of the Supreme Judicial Council are amended in order to allow the public to exercise its authority to supervise the work of the judiciary.
4. A clear and transparent mechanism is put in place to ensure that all groups of society who meet the substantive conditions of the judiciary are allowed access and engage in judicial work.
5. Legislative guarantees are put in place so that none of the other authorities interfere in the work of the judiciary.
Read our full report below
“Death or Confession”: Secret military courts try civilians whose confessions were extracted under torture.