Joint Letter: Raif Badawi - Arbitrary Detention and Illegal Treatment
Tuesday, June 30, 2015
His Majesty, King Abdullah bin Abdul Aziz Al Saud,
King of Saudi Arabia and Custodian of the two Holy Mosques,
Office of His Majesty the King, Royal Court, Riyadh,
Kingdom of Saudi Arabia. Fax: (via Ministry of the Interior) +966 11 403 3125
H.E. Shaykh Dr Mohammed bin Abdulkareem Al-Issa,Minister of Justice, Ministry of Justice,
University Street, Riyadh 11137, Kingdom of Saudi Arabia.Fax: + 966 11 401 1741 / + 966 11 402 0311·
His Royal Highness Prince Mohammed bin Naif bin Abdul Aziz Al Saud,Minister of Interior, Ministry of the Interior,
P.O. Box 2933, Airport Road, Riyadh 11134, Kingdom of Saudi Arabia.Fax: +966 11 403 3125
Re: Raif Badawi - Arbitrary Detention and Illegal Treatment
Your majesty and Ministers of Justice and Interior;
The sentence of lashing and imprisonment imposed on Raif Badawi violates Saudi Arabia’sinternational law obligations and must be rescinded. Lawyers’ Rights Watch Canada, the LawSociety of England and Wales and the International Federation for Human Rights - FIDH and theWorld Organisation Against Torture - OMCT - within the framework of their joint programmethe Observatory for the Protection of Human Rights Defenders call on the Government of SaudiArabia and the international community to take effective action to ensure the immediate andunconditional release from prison of Raif Badawi and his protection from lashings.
Both aspects of the sentence imposed by courts in Saudi Arabia on Raif Badawi—ten years’imprisonment and 1,000 lashes—constitute egregious violations of Saudi Arabia’s international lawobligations arising under a variety of instruments. Judicially sanctioned corporal punishments, such asfloggings or lashings, are a form of torture or ill-treatment and are banned under international law.Lashing is prohibited by and contravenes, the Convention against Torture and other cruel, inhuman ordegrading treatment or punishment (UNCAT), the Universal Declaration of Human Rights (UDHR) andthe Basic Principles for the Treatment of Prisoners (Basic Principles).
The prosecution, conviction and sentencing of Raif Badawi for peacefully exercising rights protected bythe UDHR, Articles 19 and 21 violate Saudi Arabia’s obligation to respect and ensure the enjoyment ofthose rights by all citizens. The trial and appeal procedures that resulted in a conviction violate andcontravene fair trial procedures determined by the UHDR, Articles 9, 10 and 11, customary internationallaw and widely accepted criminal law principles. The sentencing also contravenes the Arab Charter on Human Rights (Arab Charter)1 to which Saudi Arabia is a party, which guarantees freedom from“physical or mental torture or cruel, inhuman or degrading treatment” (Article 13), freedom of expression,opinion and belief (Article 26).
As a member of the United Nations, Saudi Arabia is legally obligated to respect the provisions of theUDHR, the HRD Declaration and the Basic Principles. As a party to the UNCAT (23 September 1997),Saudi Arabia is legally bound to prevent and punish treatment prohibited by that Convention. SaudiArabia is legally bound to adhere to the provision of the Arab Charter as a state party.
The Vienna Convention on the Law of Treaties, Article 27 prohibits states, including Saudi Arabia, frominvoking internal law as a justification for failure to perform or violations of treaty obligations.
Background
On 17 June 2012, Mr. Raif Badawi was arrested on several charges including “apostasy” by insultingIslam through electronic channels. The charges stem from a website Mr. Raif Badawi created in 2006,called Saudi Liberal Network, devoted to freedom of speech, human rights activism and legitimatecriticism of government officials.
On 29 July 2013, Mr. Raif Badawi was sentenced to 7 years in jail and 600 lashes by the Criminal Courtin Jeddah. However, on 12 December 2013 the Court of Appeals ordered a retrial. On 7 May 2014, Mr.Raif Badawi was sentenced to 10 years in prison, 1000 lashes, a 10-year travel ban following his prisonterm, and a fine of 1 million Saudi Riyals (325,890.00 CAD). Raif Badawi was not present at the 7 May2014 proceedings and was not represented by a lawyer. His lawyer Waleed Abu Al-Khair was arrested on15 April 2014 and has been continuously in prison since.
On 9 January 2015, Mr. Raif Badawi received 50 lashes outside Al-Jaffali mosque in Jeddah; the lashingswere suspended after the first session and the case was referred to the Saudi Supreme Court for review.On 7 June 2015, the Supreme Court upheld Mr. Badawi’s sentence. Mr. Badawi was not present orrepresented by a lawyer at the 7 June 2015 review of sentence by the Supreme Court. There is no furtherappeal possible in the Saudi courts.
International law obligations to prevent and punish flogging
Sentences imposing any form of flogging (lashing, whipping, beating) are prohibited by the UDHR,Article 5 and by UNCAT, Articles 2 and 16 as constituting torture or prohibited cruel, inhuman ordegrading treatment or punishment (ill-treatment). The Basic Principles for the Treatment of Prisoners2confirms that the individual’s freedom from torture and other prohibited treatment and the state duty toprevent and punish such treatment applies to prisoners. Article 5 provides:
Except for those limitations that are demonstrably necessitated by the fact of incarceration, allprisoners shall retain the human rights and fundamental freedoms set out in the Universal Declarationof Human Rights, and, where the State concerned is a party, the International Covenant on Economic,Social and Cultural Rights, and the International Covenant on Civil and Political Rights and theOptional Protocol thereto, as well as such other rights as are set out in other United Nationscovenants.
The Committee against Torture (CAT) has determined that sentences of flogging violate the UNCAT. In2002 CAT concluded that sentences of flogging in Saudi Arabia violate the UNCAT and recommendedre-examination of the imposition of flogging and other corporal punishment.3 CAT has not conducted asecond review of Saudi Arabia’s compliance with UNCAT because Saudi Arabia has not filed the reports due in 2006. In 2013 CAT confirmed that sentences of flogging imposed in Qatar violate both UNCATand customary international law and recommended:
The State party should put an end to its imposition of corporal punishment, which constitutes a breachof the Convention, and modify its legislation accordingly. The State party should ensure that criminalsanctions are in full conformity with the Convention.4
The right to freedom from flogging is non-derogable. CAT has determined that the UNCAT prohibitionsof both torture (Article 2) and ill treatment (Article 16) are non-derogable and cannot be justified by anynational law or circumstances including religious dictates.
In practice, the definitional threshold between ill-treatment and torture is often not clear. Experiencedemonstrates that the conditions that give rise to ill-treatment frequently facilitate torture andtherefore the measures required to prevent torture must be applied to prevent ill-treatment.Accordingly, the Committee has considered the prohibition of ill-treatment to be likewise non-derogable under the Convention and its prevention to be an effective and non-derogable measure. 5
CAT has further determined in General Comment No. 2 that states are obligated to eliminate obstaclesthat impede eradication of torture and ill-treatment (para.4) and to adopt effective measure to preventpublic authorities (para. 17) from authorizing, failing to prevent or otherwise enabling the use of torture orcruel, inhuman or degrading punishment or treatment,
Saudi Arabia allows for the punishment of flogging in a wide range of crimes. In the penal system,corporal punishment is lawful as a sentence for crime under Sharia law. The Juvenile Justice Act (1975)provides for corporal punishment of young persons under the age of 18, including flogging, stoning andamputation. Corporal punishment is also lawful as a disciplinary measure in penal institutions. TheDetention and Imprisonment Regulations (1977) prohibit torture or other cruel, inhuman or degradingtreatment or punishment but allow for flogging. There is no prohibition of corporal punishment in theDetention and Imprisonment Act of 1398 (1978) or the Juvenile Justice and Social Surveillance CentreRegulations. Corporal punishment is also lawful in alternative care settings.6
The United Nations Human Rights Committee (HR Committee) also determined that the use of floggingcontravenes the international law prohibition on the use of torture in the International Covenant on Civiland Political Rights (ICCPR) Article 7. The wording of this article and Article 5 of the UDHR areidentical, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment orpunishment.”
The HR Committee, considering a complaint from an adult in Jamaica who had been sentenced to bewhipped for a violent crime, concluded that whipping violated the ICCPR.
Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firmopinion of the Committee that corporal punishment constitutes cruel, inhuman and degradingtreatment or punishment contrary to article 7 of the Covenant. The Committee finds that by imposinga sentence of whipping with the tamarind switch, the State party has violated the author's rights underarticle 7.
...
The State party is also under an obligation to refrain from carrying out the sentence of whipping uponMr. Osbourne. The State party should ensure that similar violations do not occur in the future byrepealing the legislative provisions that allow for corporal punishment.7
The HR Committee confirmed that any flogging is prohibited treatment in a 2001 decision.
The Committee notes that the author was sentenced to 12 strokes of the birch and recalls its decisionin Osbourne v. Jamaica in which it decided that irrespective of the nature of the crime that is to bepunished, however brutal it may be, it is the firm opinion of the Committee that corporal punishmentconstitutes cruel, inhuman or degrading treatment or punishment contrary to article 7 of the Covenant.In the present case, the Committee finds that by imposing a sentence of whipping with the birch, theState party has violated the author's rights under article 7.8
In 2002 the HR Committee ruled that a convicted person subjected to a sentence of whipping was entitledto compensation for violation of the right to freedom from torture.
... the State party is under an obligation to provide the author with an effective remedy, includingrefraining from carrying out the sentence of whipping upon the author or providing appropriatecompensation if the sentence has been carried out. The State party should ensure that similarviolations do not occur in the future by repealing the legislative provisions that allow for corporalpunishment.9
The Working Group report on the 2009 Universal Periodic Review of Saudi Arabia, noting that SaudiArabia has acceded to UNCAT and that corporal punishment, such as flogging, is incompatible withUNCAT and international customary law, recommends that Saudi Arabia “abolish corporal punishment,and cruel, inhuman, and degrading treatment in general, and public floggings, eyegouging, flogging ofschool children, and amputation of limbs in particular.”10 Saudi Arabia rejected this recommendation.
In the second Universal Periodic Review of Saudi Arabia in 2013,11 the Working Group reports concernswith criminal law and procedure that violate international law provisions of the UDHR and UNCATincluding the use of judicially sanctioned corporal punishment. Many states recommended that SaudiArabia amend its law to comply with international law obligations. For example, Canada recommendedthat Saudi Arabia:
Draft and implement a penal code and amend the Law of Criminal Procedure to complywith all its obligations under international law, including prohibitions on judiciallysanctioned corporal punishment and the execution of juvenile offenders (Canada);12
Saudi Arabia agreed to study the recommendations and respond to them but no response has been made todate.
The UN High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, a former permanentrepresentative of Jordan to the United Nations, said: "Flogging is, in my view, at the very least, a form ofcruel and inhuman punishment. Such punishment is prohibited under international human rights law, inparticular the Convention against Torture, which Saudi Arabia has ratified."
As a member of the UN Human Rights Council Saudi Arabia has agreed and is mandatorily obliged to“uphold the highest standards in the promotion and protection of human rights”.13 The UN GeneralAssembly may suspend a member that commits gross and systematic violations of human rights. Theprosecution and sentencing of Raif Badawi is just one of many instances of gross and systemic humanrights violations by Saudi Arabia against people for peacefully exercising internationally protected rightsto expression, association and assembly.
The immediate release and pardoning of Raif Badawi may signal an intention by Saudi Arabia to bring itslaws and practice into compliance with its international law obligations including legal obligations arisingfrom the UDHR and the UNCAT.
The undersigned organizations call on the Government of Saudi Arabia and the international communityto take effective action to ensure the immediate and unconditional release from prison of Raif Badawi andhis protection from lashings and his reunification with his family.
Endorsed by the following on behalf of FIDH, OMCT, LRWC and the Law Society of Englandand Wales:
Karim Lahidji,
FIDH President,
within the framework of the Observatoryfor the protection of human rights defenders
Gerald Staberock,
OMCT Secretary General,
within the framework of the Observatoryfor the protection of human rights defenders
Gail Davidson,
Executive Director
Lawyers Rights Watch Canada
Sarah J. Smith,
Human Rights and Rule of Law Policy Advisor,Law Society of England and Wales
1 The Arab Charter was adopted by the Council of the League of Arab States on 15 September 1994.
2 Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990.
3 Conclusions and recommendations of the Committee against Torture: Saudi Arabia. 06/12/2002. CAT/C/CR/28/5,paras. 4, 8, online:<http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/a1d3cd6a1c89d294c1256bd00055bac6?OpendocumentCAT>
4 Conclusions and recommendations of the Committee against Torture, Qatar, U.N. Doc. CAT/C/QAT/CO/2 (2013),para. 12, online: <http://www1.umn.edu/humanrts/cat/observations/qatar2013.html>.
5 Committee Against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc.CAT/C/GC/2/CRP. 1/Rev.4 (2007), at para. 3. online: <http://www1.umn.edu/humanrts/cat/general_comments/cat-gencom2.html>.
6 Global Initiative to End All Corporal Punishment of Children, “Country Report for Saudi Arabia” (February 2015),online: <http://www.endcorporalpunishment.org/progress/country-reports/saudi-arabia.html>.
7 George Osbourne v. Jamaica, Communication No. 759/1997, U.N. Doc. CCPR/C/68/D/759/1997 (2000), 15March 2000 at paras. 9.1 and 11, online: <https://www1.umn.edu/humanrts/undocs/session68/view759.htm>.
8 Boodlal Sooklal v. Trinidad and Tobago, Communication No. 928/2000 (2 February 2000),CCPR/C/73/D/928/2000. 25 October 25 2001 at para. 4.6., online: <http://www1.umn.edu/humanrts/undocs/928-2000.html>.
9 Mr. Malcolm Higginson v. Belarus, Communication No. 792/1998, U.N. Doc. CCPR/C/74/D/792/1998 (2002),adopted 28 March 2002 at para. 6, online: <http://www1.umn.edu/humanrts/undocs/792-1998.html>.
10 Report of the Working on the Universal Periodic Review of Saudi Arabia, 4 March 2009, A/HRC/11/23 at para.27, online: <http://www.ohchr.org/EN/HRBodies/UPR/Pages/SASession4.aspx>.
11 Report of the Working Group on the Universal Periodic Review of Saudi Arabia, 26 December 2013,A/HRC/25/3, at para. 138.45 online: <http://www.ohchr.org/EN/HRBodies/UPR/Pages/SASession17.aspx>
12 <http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-HRC-25-3_en.doc>.
13 Resolution adopted by the General Assembly, 60/251. Human Rights Council, 3 April 2006,A/RES/60/251, at para. 9 online: < http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf>.
FIDH is a non-governmental federation for human rights organizations. FIDH’ s core mandate is topromote respect for all the rights set out in the Universal Declaration of Human Rights, the InternationalCovenant on Civil and Political Rights, and the International Covenant on Economic, Social and CulturalRights. Its priority areas include protecting human rights defenders and fighting impunity.
Contact: Tel: + 33 1 43 55 25 18; Email: obs@fidh.org; Web; www.fidh.org
The World Organisation Against Torture (OMCT) created in 1986, is today the main coalition ofinternational non-governmental organisations (NGO) fighting against torture, summary executions,enforced disappearances and all other cruel, inhuman or degrading treatment. With 282 affiliatedorganisations in its SOS-Torture Network and many tens of thousands correspondents in every country,OMCT is the most important network of non-governmental organisations working for the protection andthe promotion of human rights in the world.
Contact: Tel: + 41 22 809 4939; Email: omct@omct.org; Web: http://www.omct.org/
Lawyers Rights Watch Canada (LRWC) is a committee of lawyers who promote human rights and therule of law internationally by: protecting advocacy rights; campaigning for jurists in danger because oftheir human rights advocacy; engaging in research and education; and working in cooperation withother human rights organizations. LRWC has Special Consultative status with the Economic and SocialCouncil of the United Nations.
Contact: +1 604 736 1175: lrwc@portal.ca; www.lrwc.org
The Law Society of England and Wales is the professional body representing more than166,000 solicitors in England and Wales. Its concerns include the independence of the legalprofession, the rule of law and human rights throughout the world. The Law Society has SpecialConsultative Status with the Economic and Social Council of the United Nations since 2014.Contact: Tel: 020 7320 5934; Email: Sarah.J.Smith@LawSociety.org.uk; Web:www.lawsociety.org.uk
Copied to:
H.E. Mr. Faisal Bin Hassan Trad,
Ambassador, Permanent Mission of the Kingdom of Saudi Arabiato the United Nations Office in Geneva,
Route de Lausanne 263, 1292 Chambésy, Switzerland. F
Fax: +41 22 758 00 00.
Email: saudi.mission.ch@mofa.gov.sa
H.E. Mr. Abdulrahman bin Soliman Al-Ahmed,Ambassador, Embassy of Saudi Arabia in Brussels,Avenue Franklin Rosevelt, 45 1050 Brussels, Belgium.Fax: +32 2 6468538.
Email: beemb@mofa.gov.sa
Mr. Michel Forst
Special Rapporteur on the situation of human rights defenders
c/o Office of the High Commissioner for Human Rights – Palais WilsonUnited Nations Office at Geneva
CH 1211 Geneva 10
Switzerland
Email: urgent-action@ohchr.org
Mr. David Kaye
Special Rapporteur on the promotion and protectionof the right to freedom of opinion and expressionPalais des Nations
CH-1211 Geneva 10
Switzerland
Fax: +41 22 917 9006
Email: freedex@ohchr.org
Mr. Maina Kiai
Special Rapporteur on the rights
to freedom of peaceful assembly
and of association
Palais des Nations
CH-1211 Geneva 10Switzerland
Fax : + 41 22 917 9006
Email: freeassembly@ohchr.org
Gabriela Knaul
Special Rapporteur of the Human Council on the independence of judges and lawyersc/o Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland
Fax: +41 22 917 9006
E-mail: SRindependenceJL@ohchr.org
Juan Mendez
Special Rapporteur on Torture
Special Rapporteur of the Human Council on the independence of judges and lawyersc/o Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland
Fax: +41 22 917 9006
Email: sr-torture@ohchr.org
Working Group on Arbitrary Detention
c/o Office of the High Commissioner for Human RightsUnited Nations Office at Geneva
8-14, avenue de la Paix
1211 Geneva 10, Switzerland
facsimile: +41 22 9179006
Email: wgad@ohchr.org
Arab Commission for Human Rights5, rue Gambetta
92240-Malakoff- France
Fax: 0033146541913
Email: achr@noos.fr
The Right Honourable Stephen HarperPrime Minister
House of Commons
Ottawa, Ontario
CanadaK1A 0A6
stephen.harper@parl.gc.ca
The Honourable Rob NicholsonMinister of Foreign Affairs,House of Commons
Ottawa, Ontario
CanadaK1A 0A6
rob.nicholson@parl.gc.ca
The Right Honourable David Cameron MPPrime Minister
10 Downing Street
London SW1A 2AA
Email: camerond@parliament.uk
The Rt Hon Philip Hammond MP
Secretary of State for Foreign and Commonwealth AffairsHouse of Commons,
London, SW1A 0AA
hammondp@parliament.uk
