A/HRC/WGAD/2014/5

GE.14-08401 (E)

*1408401*

Human Rights Council

Working Group on Arbitrary Detention

Opinion adopted by the Working Group on Arbitrary

Detention at its sixty-ninth session (22 April-1 May 2014)

No. 5/2014 (Iraq)

Communication addressed to the Government on 16 December2013

concerning Shawqi Ahmad Omar

The Government replied to the communication on 19 March 2014.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution

1991/42 of the former Commission on Human Rights, which extended and clarified the

Working Group’s mandate in its resolution 1997/50. The Human Rights Council assumed

the mandate in its decision 2006/102 and extended it for a three-year period in its

resolution 15/18 of 30 September 2010. The mandate was extended for a further three years

in resolution 24/7 of 26 September 2013. In accordance with its methods of work

(A/HRC/16/47 and Corr.1, annex), the Working Group transmitted the above-mentioned

communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

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General Assembly

Distr.: General

15 July 2014

Original: English

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

The case summarized below was reported to the Working Group on Arbitrary

Detention.

4.

Shawqi Ahmad Omar, born in 1962 in Kuwait, is a national of Jordan and a

naturalized citizen of the United States of America.

5.

Mr. Omar arrived in Iraq from the Syrian Arab Republic with his wife on 3 June

2004 to work in the building industry. In late October 2004, Mr. Omar and his wife were

arrested at his uncle’s house in the Zaiyouna district of Baghdad by the Multinational Force

led by the United States. He was detained in Camp Na’ma detention facility near Baghdad

International Airport, accused of having been engaged in terrorism-related activities. The

source submits that the Multinational Force tortured Mr. Omar and his wife with electric

shocks during interrogation.

6.

Mr. Omar’s wife was released after 16 days and subsequently left Iraq. Mr.

Omar was held without charge or trial until 2010, when his case was transferred to an Iraqi

criminal court. On 24 June 2010, Mr. Omar was sentenced to 15 years’ imprisonment for

the crime of entering Iraq illegally. The source reports that Mr. Omar was never informed

of the charge against him. Mr. Omar had no legal representation at the trial, as it was

originally scheduled to take place in July 2010 and his lawyer had not been informed of the

change in the trial date. Furthermore, Mr. Omar believes that his identity was mistaken, as

he was convicted under the name of a Palestinian national called Shawqi Ahmad Sharif.

Mr. Omar appealed against the conviction and in February 2011 the Court of Cassation

reduced the sentence to seven years’ imprisonment.

7.

On 15 July 2011, Mr. Omar was handed over to the Iraqi authorities. The source

indicates that after his initial detention in Camp Na’ma in 2004, Mr. Omar was detained in

various detention facilities, including Camp Bucca, Camp Cropper and Abu Ghraib prison.

Mr. Omar was reportedly held in Camp Cropper at the time of the handover. According to

the source, Mr. Omar went on hunger strike between February and August 2013, in protest

against his prolonged detention and against having being sentenced under a mistaken

identity. The source believes that Mr. Omar has recently been transferred to Abu Ghraib

prison and is currently detained there.

8.

The source argues that Mr. Omar’s detention is arbitrary, as he was sentenced

under a mistaken identity. In support of its contention, the source reports that one of Mr.

Omar’s co-accused signed a court-certified statement on 3 June 2012, after his release,

stating that the Multinational Force had tortured him in order to force him to incriminate

Mr. Omar, whom he did not know, in return for his release. Furthermore, the source

submits that Mr. Omar should have been released in 2011 in any case, as article 295 of the

Iraqi Criminal Procedure Code provides that time spent in pretrial detention should be

deducted from the sentence. In accordance with that provision, Mr. Omar had duly served

his sentence by the end of October 2011 and should have been released then. The source

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therefore maintains that there is no legal basis justifying Mr. Omar’s detention and thus his

detention is arbitrary.

The source also submits that Mr. Omar’s detention is arbitrary, as he had been held without

charge or trial for over five years since his arrest in October 2004. Furthermore, Mr. Omar

was not afforded adequate time and facilities to prepare for his defence and had no legal

representation at the trial. The source contends that that non-observance of international

norms was contrary to Mr. Omar’s right to a fair trial enshrined in article 14 of the

International Covenant on Civil and Political Rights. The source maintains that Mr. Omar’s

detention is thus arbitrary, in view of the non-observance of the international norms relating

to the right to a fair trial.

Communication with the Government

9.

The Working Group addressed a communication to the Government of Iraq on

16 December 2013. The Group requested the Government to provide detailed information

about the current situation of Mr. Omar and to clarify the legal provisions justifying his

continued detention. The Group also requested the Government to provide details regarding

the conformity of his trial with international law.

10.

The Government responded on 19 March 2014 that Mr. Omar, who has United

States citizenship, had been sentenced to seven years in accordance with article 24 of the

Amended Residence of Aliens Act No. 118 of 1978 and his sentence had begun on 24 June

2010.

11.

While the Working Group appreciates the Government’s response, it regrets

that the response did not provide details of the current situation of Mr. Omar or clarify in a

satisfactory manner the legal provisions justifying his continued detention and the

conformity of his trial with international law.

Reply from the source

12.

On 9 April 2014, the source provided comments on the Government’s response.

It provided further information about the circumstances of the arrest of Mr. Omar and his

wife on 3 June 2004 and noted that Mr. Omar had been held without charge or trial until

2010, when his case had been transferred to an Iraqi criminal court. On 24 June 2010, he

had been sentenced to 15 years’ imprisonment on charges of entering Iraq illegally, a

charge that had previously never been mentioned to him and which he believed to have

been made on the basis of mistaken identity, as he had been convicted under the name of a

Palestinian national called Shawqi Ahmad Sharif. His case had gone to appeal and in

February 2011 his sentence had been reduced by the Court of Cassation to seven years’

imprisonment.

13.

The source remains concerned that Mr. Omar should have been released in 2011

in compliance with article 295 of the Criminal Procedure Code of Iraq, which stipulates that

time spent in pretrial detention should be deducted from the final sentence.

Discussion

Evidence

14.

The Working Group regrets that the Government, in its reply, did not respond to

the allegations transmitted to it. Despite the absence of any information from the

Government beyond confirmation of the sentence against Mr. Omar, the Group considers

that it is in a position to render its opinion on the detention of Mr. Omar in conformity with

paragraph 16 of its methods of work.

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15.

The Government has not rebutted the prima facie reliable allegations submitted

by the source and transmitted to the Government. Where it is alleged that a person has not

been afforded, by a public authority, certain procedural guarantees to which he was entitled,

the International Court of Justice has found that the burden to prove the negative fact

asserted by the applicant is on the public authority, because the latter is “generally able to

demonstrate that it has followed the appropriate procedures and applied the guarantees

required by law ... by producing documentary evidence of the actions that were carried

out”.1 A similar approach has been adopted by the Human Rights Committee, according to

which the burden of proof cannot rest on the author of the communication alone, especially

considering that the author and the State party do not always have equal access to the

evidence and frequently the State party alone has the relevant information.2

Background

16.

Mr. Omar has been detained since 3 June 2004. He was detained by the

Multinational Forces in various detention facilities before he was transferred to the Iraqi

authorities on 15 July 2011. Having made no findings about the detention by the

Multinational Forces before the transfer to the Iraqi authorities, the Working Group briefly

recalls some points set out in various judgements by courts in the United States. In 2004, a

military panel classified Mr. Omar as a “security internee under the law of war” and an

“enemy combatant in the war on terrorism” who was not a prisoner of war for purposes of

the Geneva Convention of 12 August 1949 relative to the treatment of prisoners of war. As

a United States citizen, he managed to have his habeas corpus action brought before the

United States courts, and the United States Supreme Court, as one of two consolidated

cases, Munaf v. Geren (06-1666) and Geren v. Omar (07-394), concluded in Munaf v.

Geren, 553 U.S. 674 (2008) that the habeas corpus statute extended to United States

citizens held overseas by American forces subject to an American chain of command, even

if acting as part of a multinational coalition.

17.

That did not bar Mr. Omar’s transfer to the Iraqi authorities at that stage as

“habeas corpus does not require the United States to shelter such fugitives from the

criminal justice system of the sovereign with authority to prosecute them”.3 The case of the

Government of the United States before the United States courts was that Mr. Omar was a

terrorist and had participated in terrorist networks, and that weapons and bombs had been

found at his home.

18.

The Working Group refers to its opinion No. 57/2013 (Djibouti, Sweden and

the United States of America),4 in which it recalled that, in its jurisprudence, deliberations,

legal opinions, concluding reports on country missions, and in its annual reports to the

Human Rights Council, it had reviewed issues related to arrests and detention abroad and

trials of terrorist suspects, including the 2010 Joint study on global practices in relation to

secret detention in the context of countering terrorism, undertaken jointly by four United

Nations special rapporteurs and working groups, including the Working Group on Arbitrary

1 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,

I.C.J. Reports 2010, pp. 660–661, para. 55; see also the Working Group’s constant jurisprudence, e.g.

opinion No. 57/2013 (Djibouti, Sweden and the United States of America).

2 See, for instance, Human Rights Committee, Butovenko v. Ukraine, communication No. 1412/2005,

para. 7.3; Medjnoune v. Algeria, communication No. 1297/2004, para. 8.3; Conteris v. Uruguay,

communication No. 139/1983, para. 7.2; and Bleier v. Uruguay, communication No. 30/1978,

para. 13.3.

3 Munaf v. Geren.

4 A/HRC/WGAD/2013/57.

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Detention.5 As stated in its opinion No. 57/2013, the Working Group emphasizes that the

United States remains responsible under international law and international human rights

law for the acts of its agents on foreign territory.

Detention by the Iraqi authorities

19.

The present opinion concerns the detention of Mr. Omar by the Iraqi authorities.

The Government in its response confirms Mr. Omar’s sentence of seven years for entering

the country illegally, according to article 24 of the Amended Residence of Aliens Act

No. 118 of 1978. Article 24 provides: “Whoever contravenes the provisions of any of

articles 3, 8 or 20 of this Law shall be punished by life imprisonment or by a term of

imprisonment, as well as by confiscation of the properties in his possession.” Article 3

prohibits entry on various grounds, including being without a passport or not having filled

in an arrival form.

20.

With respect to the criminalization of irregular entry and stay in a country, the

Working Group has, in its constant jurisprudence6 and in numerous reports,7 taken the view

that the criminalization of irregular migration exceeds the legitimate interests of States in

protecting their territories and regulating irregular migration flows.8 The Group has also

shown how penalties for not complying with the formal requirements for entry to a country

are subject to review under international law.9 The review is a particularly worrying one,

and disproportionate penalties are in violation of international law. Article 24 of the

Amended Residence of Aliens Act is clearly disproportionate, and in violation of

international law.

21.

Furthermore, the present case reveals serious procedural violations, including

Mr. Omar’s lack of access to legal assistance during his detention by the Iraqi authorities, in

preparation for or at his trial. This is in breach of his right to a fair trial, guaranteed under

article 10 of the Universal Declaration of Human Rights and article 14 of the International

Covenant on Civil and Political Rights. The Government did not contest the allegations that

Mr. Omar had been convicted and sentenced to a harsh and disproportionate sentence of

imprisonment, following a summary trial which did not respect due process in accordance

with international law. The Working Group finds that the disregard of Mr. Omar’s right to a

fair trial in the present case is of such gravity as to give his deprivation of liberty an

arbitrary character. Mr. Omar’s detention clearly falls within category III of the categories

applicable to the consideration of the cases submitted to the Group.

22.

The Working Group shares the concerns expressed by civil society

organizations about a vast number of individual cases of detention without charge or trial in

Iraq, often for prolonged periods. The detainees have often been subjected to enforced

disappearance, tortured and otherwise ill-treated in custody. Those concerns have been

expressed to the Government of Iraq over the past years and remain unaddressed. The

Group regrets that its procedures, which rely on the cooperation of States, have not brought

5 Joint study on global practices in relation to secret detention in the context of countering terrorism of

the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms

while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary

Detention represented by its Vice-Chair, Shaheen Sardar Ali; and the Working Group on Enforced or

Involuntary Disappearances represented by its Chair, Jeremy Sarkin (A/HRC/13/42 of 19 February

2010).

6 See, for example, opinion Nos. 43/2012 (Iraq); 55/2011 (Lebanon) and 56/2011 (Lebanon).

7 A/HRC/10/21, paras. 65–68, and A/HRC/13/30, paras. 54–65.

8 A/HRC/13/30, para. 58.

9 See, for example, A/HRC/10/21, para. 65, and A/HRC/13/30, para. 55.

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forward more information about the case of Mr. Omar after his transfer to the Iraqi

authorities.

Disposition

23.

In the light of the foregoing, the Working Group on Arbitrary Detention renders

the following opinion:

Mr. Omar’s detention is in breach of articles 9 and 10 of the Universal Declaration

of Human Rights and articles 9 and 14 of the International Covenant on Civil and

Political Rights and falls within category III of the categories applicable to the

consideration of the cases submitted to the Working Group.

24.

Consequent upon the opinion rendered, the Working Group requests the

Government of Iraq to remedy the situation of Mr. Omar and to bring it into conformity

with international law and the standards and principles set out in the Universal Declaration

of Human Rights and the International Covenant on Civil and Political Rights.

25.

Taking into account all the circumstances of the case, the adequate remedy is to

immediately release Mr. Omar and to accord him an enforceable right to compensation in

accordance with article 9, paragraph 5, of the International Covenant on Civil and Political

Rights. The duty to provide Mr. Omar with compensation for the violations of his rights

rests upon the State and should be enforceable before the national courts.

26.

In the light of the allegations of torture and ill-treatment, the Working Group

refers the case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment for appropriate action.

[Adopted on 23 April 2014]