Arbitrary Detention, Enforced Disappearance, and Torture

The Human Rights Forum third session

Tuesday, March 14, 2023
Arbitrary Detention, Enforced Disappearance, and Torture

On Tuesday, March 14, 2023, Mwatana for Human Rights held the third session of the Human Rights Forum via Zoom, where discussions revolved around "arbitrary detention, enforced disappearance, and torture in the context of armed conflict."

During the meeting, the following individuals spoke: Radhya Al-Mutawakil - Chairperson of Mwatana for Human Rights, Bonyan Jamal - Director of the Legal Support Unit at Mwatana for Human Rights, Najlaa Fadel - member of the Abductees Mothers Association, and Musa Al-Akhali - a lawyer in the Legal Support Unit at Mwatana for Human Rights.

The discussion was moderated by Hussam Al-Eryani, a lawyer in the Legal Support Unit at Mwatana for Human Rights. It began with introductions of the attendees and an overview of the forum's objectives, which aim to stimulate substantive discussions on various human rights issues.

Radhya Al-Mutawakil, Chairperson of Mwatana for Human Rights, initiated the session by welcoming all attendees and addressing the issues of arbitrary detention and enforced disappearance in Yemen since the beginning of the war. 

She stated, “These issues are among the gravest matters created by the war in Yemen, with all parties to the conflict participating in these violations.” 

Al-Mutawakil commended the role of the Abductees Mothers Association and Mwatana for Human Rights in addressing these violations.

Radhya spoke about the efforts made by the Abductees Mothers Association in cases of arbitrary detention and enforced disappearance, as well as the crucial role played by women working within the association in various locations across Yemen. She also highlighted the invaluable contributions made by these women through the association. She said, “The strength of the association lies in its composition of women from families with detainees, which provides a powerful incentive to persist in their mission, given the association's close ties to the families of the abducted and detained individuals, aiming to either locate the detainees or resolve their detention cases.”

Radhya also discussed Mwatana for Human Rights' role in cases of detained and disappeared persons, as well as torture. She stated, “Through this work, Mwatana seeks to promote the rule of law and remind parties to the conflict in various regions to abide by the constitution and the law, even in times of war.”

On the other hand, Bonyan Jamal, Director of the Legal Support Unit at Mwatana for Human Rights, discussed the Unit's work in providing legal support to victims of arbitrary detention, enforced disappearance, and torture. She highlighted the types of violations that occur and said, “The unit consists of 28 lawyers working in 16 governorates. The unit provides legal support to victims of arbitrary detention, enforced disappearance, and torture by addressing serious procedural flaws and extrajudicial killings.” Bonyan explained that the legal support provided by Mwatana for Human Rights involves specialized services through lawyers in different regions of Yemen. They follow up on cases that have been reported to them or gather sufficient information about these cases through personal interviews. After obtaining informed consent from the victims' families, the legal team proceeds with legal action.

Bonyan stated that the information goes through three stages: field monitoring and documentation, central lawyer assessment, and legal analysis to understand the case from a legal perspective and determine its legal status and the applicable laws. Subsequently, the legal follow-up phase begins, which involves various forms and stages, including communication with the perpetrators of the violations and legal petitions. During these stages, the Legal Support Unit conducts field visits to detention or arrest sites, or the legal entities responsible for these sites. Simultaneously, the legal team provides legal advice to the victims' families on the necessary steps to take.

Bonyan also addressed various patterns of human rights violations, including arbitrary detention, enforced disappearance, restrictions on freedom of speech and belief, torture, conditions in arrest and detention facilities, as well as locations of detention and disappearance. She presented these patterns to the attendees and provided detailed explanations about each of them. Additionally, she highlighted the severe imbalances that often accompany these violations, including extrajudicial killings. Bonyan pointed out that the Legal Support Unit at Mwatana has been actively addressing these patterns since 2016, having offered legal assistance to 2,959 victims to date and played a crucial role in securing the release of 1,233 victims from places of detention and disappearance. Currently, the legal support team is actively engaged in approximately 526 cases.

During the meeting, Najlaa Fadel, a member of the Abductees Mothers Association, discussed the role of the Association in Yemen and its work on issues related to arbitrary detention, enforced disappearance, torture, ill-treatment, the rule of law, and its commitment to a working mechanism that is not different from the mechanism employed by Mwatana for Human Rights in terms of monitoring, documentation, and legal follow-up.

She stated, “The Association was initially unsure when some detainees and the disappeared were brought to trial, whether this step was in favor of the victims or not. Eventually, the Association realized that this step is a positive one because it works to enhance the rule of law, and this is something that must be strengthened.” The Abductees Mothers Association asks the victims' families, when documenting any case if they have submitted any legal complaints regarding the abduction or disappearance. Through this, families are encouraged to initiate legal proceedings from the outset, and they are also educated about the legal procedures and their significance.

Najlaa emphasized that the law should never be absent, and even slow and incomplete steps are better than a complete absence of the law. Despite many families initially refraining from filing legal complaints, believing that it was impossible to file a complaint against the party responsible for the violation, the Association encouraged them to consider it as an essential legal step. She pointed out that the families of the victims had lost trust in the authorities, which posed a significant challenge for the Association, as families sometimes hesitated to comply with legal procedures due to their lack of trust. Nevertheless, the Association always urges the families of the victims to adhere to the legal procedures.

Najlaa also talked about the trials that took place, including the unjust death sentences handed down to journalists and other detainees. She reminded the attendees of a report issued by the Association in 2017 that discussed these trials. The report addressed the trial of 36 detainees, during which the Association and Mwatana for Human Rights were present in the courtroom. According to Najlaa, the judge in those trials showed a bias towards the prosecution, and the judiciary refused to listen to the victims and their complaints regarding the violations they had suffered during detention.

She also described the extensive violations, physical, psychological, and sexual torture, inflicted on detainees in prisons. She mentioned that there were numerous trials and death sentences carried out outside the legal framework, which were often perceived as political maneuvers between conflicting parties. However, she highlighted a significant incident in which nine individuals accused of killing Saleh al-Samad in 2020 were sentenced to death. Another individual died as a result of torture in an attempt to force him to confess to al-Samad's murder. This incident shocked many. Najlaa emphasized that these individuals had endured the worst forms of torture in prisons, and the judiciary had refused to hear their testimonies.

In 2021, the Abductees Mothers Association documented approximately 93 release orders, of which only four were executed. They also documented 53 death sentences. Nine of these death sentences were carried out, and the others were postponed. In December of the previous year, ten individuals among the abducted and detained by the Ansar Allah (Houthi) group received death sentences, as Najlaa mentioned.

Najlaa discussed the violations committed by specialized criminal courts in Sana’a and Aden, citing extensive violations and illegal trials against many detainees. She mentioned the absence of mechanisms to resolve cases in these courts and how they often serve as a means of political pressure to negotiate the release of the convicted individuals. She also talked about the principle of prisoner exchange, where combatant prisoners are exchanged for civilian detainees who have no direct involvement in the conflict.

On the other hand, Musa Al-Akhali, a lawyer in the Legal Support Unit at Mwatana for Human Rights, talked about the application of the law between the text and its implementation. He stated, "The law is essentially a social contract between the authorities and society, containing duties and rights. The law grants many rights to citizens that authorities must respect and not infringe upon. These rights cover all aspects of human life, including detention and arrest."

Regarding Yemeni law and the legal obligations that must be followed under Yemeni law when arresting someone, Musa explained, "When arresting or detaining any individual, there must be a valid arrest warrant issued by a specific competent authority, according to Yemeni law, such as the prosecutor or the court. Consequently, security forces are not allowed to arrest anyone without a valid arrest warrant." 

Musa added that Yemeni law stipulates that in cases where a person is under suspicion, security authorities are not permitted to forcibly remove them from their location. Instead, the individual should be escorted peacefully, in accordance with the law, to the appropriate police department. The police department is then obligated to follow legal procedures, which include allowing the suspect to be heard within a timeframe not exceeding 24 hours, rather than subjecting them to immediate interrogation. He further emphasized that if the arrest procedures were not legal from the outset, they would invalidate all subsequent procedures according to the law.

Concerning the rights of individuals detained in police stations, Musa says that it is essential for police departments to allow them the opportunity to contact their relatives and seek the assistance of a private attorney. The individual also has the right to remain silent in police stations and should not be compelled to say anything. Police officers must respect their choice not to speak and should not force them to communicate in any way. When obtaining statements from the individual inside a police station, it is the duty of the arresting officer to read back the statements before they are signed to ensure the accuracy of the information provided.

Musa points out that the detention period in police stations should not exceed 24 hours, and if it surpasses this duration, it constitutes a clear legal violation. Afterward, the detained person should be transferred to the public prosecutor's office. The public prosecutor's office is required to request an interview with the person within 24 hours to hear their statements and verify their identity. If the public prosecutor's office does not find any evidence that the person has committed a crime, they must release the individual immediately. The public prosecutor's office can only detain the person if there is evidence of their involvement in a crime, and the maximum duration of pre-trial detention is seven days. During the investigation, members of the public prosecutor's office must inform the individual of their legal rights, which is a fundamental right, and they must also listen to the detained individual's requests. The public prosecutor's office cannot ignore the requests of the detainee.

Regarding ill-treatment or torture during detention, Musa asserts that detainees have the right to report any such incidents to the public prosecutor's office. Since the public prosecutor's office is primarily responsible for places of detention, it is imperative for them to listen to the detainee's account, investigate their statements, and take legal action against those responsible for violations in accordance with the law. The public prosecutor's office is also accountable for unlawful places of detention, and if their existence is confirmed, it must promptly intervene and initiate an investigation.

In the stage of the trial, Musa emphasizes that the court must, above all, adhere to the principles of a fair trial, enabling all parties to present their arguments and considering all requests made by them. The court does not have the right to prevent the accused from contacting their relatives or seeking assistance from a lawyer. If the court does not find clear evidence against the accused, they must release the individual immediately.

In conclusion, Musa underscores that lawyers and experts in this field must provide comprehensive legal support to the victims, raise awareness among the public about this aspect, and emphasize the importance of following these legal procedures, which primarily condemn those who have committed violations. 

At the conclusion of the speakers' presentations, the floor was opened for a discussion with the audience. In response to a question from one of the attendees about the impact of the recent Saudi-Iranian agreement on the human rights and humanitarian situation in Yemen, Radhya Al-Mutawakel stated that the conflict between Saudi Arabia and Iran has resulted in proxy conflicts in several nations, Yemen included. She emphasized that these countries must shoulder their moral and legal responsibilities regarding these issues. Radhya expressed her hope that the Saudi-Iranian agreement would contribute to the realization of a just peace in Yemen.

In response to the discussions concerning the unjust trials in Yemen, Radhya Al-Mutawakel expressed her earnest hope for the cessation of all such trials, with a particular emphasis on the case of the four journalists detained by the Ansar Allah (Houthi) group. She stressed that these unfair trials should be ceased without delay, as they lack a legal basis. In this context, Mwatana has published a study titled 'Courts for Abuse,' which thoroughly examines the performance of specialized criminal courts in Sana'a and the southern regions, highlighting the numerous violations committed by these courts.

As for the question regarding the legality of prisoner exchanges between the conflicting parties, Radhya Al-Mutawakkil responded by highlighting that in the lists of exchanges that have occurred between the conflicting parties, the names of civilians with no direct connection to the conflict were included. She emphasized the immediate necessity of releasing these civilians outside of the framework of exchange agreements. Radhya further pointed out that individuals such as Muhammad Qahtan, a leader in the Islah Party, Mustafa Al-Mutawakkil, a Dr. at Sana'a University, journalists, and other civilians should never have been included in prisoner exchange lists. They should be unconditionally and immediately released, with the responsibility for their inclusion on exchange lists lying squarely with the conflicting parties.

When discussing the challenges and risks encountered by human rights activists, Najlaa Fadel highlighted the primary difficulties they confront, particularly in terms of security. They regularly face ongoing threats and repeated attacks while carrying out their work and participating in protests. These challenges also encompass electronic hacking attempts aimed at blackmailing them. Furthermore, as women working within the association, they encounter societal resistance to women's involvement in this field. Additionally, the legal procedures that the Association adheres to are frequently frustrating, as the parties responsible for violations often disregard established legal processes.

Furthermore, in addition to the aforementioned challenges, Bonyan Jamal highlighted additional difficulties, stating, "Working in this field is incredibly demanding, and the legal team encounters numerous and countless challenges. There are also significant psychological challenges that arise from continuous involvement in cases of detention, enforced disappearance, and torture, which can leave deep emotional scars on the team. Moreover, there are security challenges associated with traveling between different locations."

At the conclusion of the meeting, Radhya Al-Mutawakel stated, “In a non-international conflict, there is no legal designation for prisoners of war; there are civilian detainees and military detainees.” She also expressed her wholehearted support for the United Nations' efforts to facilitate negotiations related to detainees in conjunction with this meeting, expressing hope for the release of all detainees. Radhya reaffirmed her unwavering commitment to advocating for the rights of detainees, forcibly disappeared individuals, and all those who have suffered as victims of this war.

In turn, Najla Fadel commended Mwatana for its role in sponsoring and organizing the Human Rights Forum. She emphasized that the Abductees Mothers Association consistently highlights the significance of adhering to fair trial standards in Yemen, addressing the conduct of trials and the related procedures and violations. Their aim is to exert pressure on all parties to ensure fair trial practices.

Bonyan Jamal welcomed anyone with legal inquiries in this regard and encouraged everyone to report any violations that may have occurred. She also emphasized that the Legal Support Unit at Mwatana is available around the clock to offer assistance.