Trial by Torture - judicial system in Middle East

Humanist, March, 1999 by Abderrahim Sabir

Human rights are frequently and sometimes systematically violated by governments throughout the world. The Middle East is no exception.

In most of the region, human rights are viewed as having only secondary importance. Qualifications and exceptions are placed on definitions of human rights and are used as instruments of repressive governmental policies. And despite political openings characterized by multipartyism and reasonably free elections, the judicial systems in most of the Middle East countries continue to function poorly.

The judiciary is politicized and subservient to governments, and thus any qualifications or rhetoric on rights will have the content that governments choose to ascribe to them. Those qualifications leave the authorities free to engage in repressive and unlawful conduct, chosen without fear of any challenge to the legality of their actions.

Governments of the region maintain their control over the judicial system by appointing judges through royal/presidential decrees and maintaining a hegemony over different constituents of civil society that are within the domain of the legal system. Judges are forced to forego independence and impartiality. And despite increased discussion about respect and promotion of human rights, the political rhetoric surrounding fair trials and respect of the laws is rarely accompanied by significant action. Such is often the case with human rights practices on the whole.

Rachid Mesli, an Algerian human rights lawyer, learned firsthand about unfair trials in Algeria. After being held in pretrial detention for nearly a year, he was sentenced in July 1997 to three years imprisonment in a nonpublic trial. His family and human rights organizations were denied access to the court, and his defense lawyers were not allowed to call witnesses.

Mesli was illegally abducted on July 31, 1996, by four armed members of the security forces and subsequently "disappeared." News of his whereabouts didn't emerge until August 10, when he appeared before the examining magistrates, apparently with bruises on his right eye and one hand. He reportedly had been beaten and threatened with death during the first days of his detention.

Mesli was officially charged with two offenses related to belonging to a "terrorist" group. He was acquitted of both charges. But the court found him guilty of having "encouraged terrorism," though this charge had not been brought against him. He was therefore convicted of an offense for which he had not been charged and was not given the chance to defend himself.

International law states clearly that a defendant is entitled to be informed of the charges against her or him, to have adequate time and facilities for the preparation of her or his defense, and to examine any potential witnesses. Moreover, the Algerian Penal Code states that, if a court wishes to add a charge to those on which it is deliberating, the hearing must be reopened and the opportunity to present their cases must be given to both the prosecution and the defense. Mesli was denied all of this. He was prosecuted simply because of his activities as a human rights lawyer. He never should have been tried, let alone convicted.

There are unfortunately many Rachid Meslis throughout the Middle East. They continue to be held without charges for extensive periods. In full violation of international law, administrative detentions are used against them as a means of punishment, and savage and inhuman methods of torture--including cigarette burning, electrocution of genitalia, and sexual abuse-continue to be used against them and their families. Confinement in small spaces together with deprivation of food and sleep are their daily ritual.

Such treatment is unfortunately the norm rather than an aberration. Torture against political detainees is so common that police stations have become slaughterhouses, where bodies are left lying in corridors to intimidate others. Many detainees suffer from at least one chronic disease, while psychological illnesses are widespread, affecting their families as well.

All of this contributes to the creation of an environment in which it is extremely difficult for a defendant to hope for a fair trial. Serious violations of international law are committed often as a matter of policy. In Israel, the Supreme Court has sanctioned the torture of suspects during interrogation by permitting law enforcement officials to violently shake persons with enough force to snap the brain stem. Lawyers are routinely denied access to their clients during the first days of detention, when torture is most likely to take place. In many cases, they aren't even informed of the date of the interrogation.

Judges refuse to exercise their power to order medical examinations after complaints of torture, and rarely are actions taken to investigate deaths in custody in circumstances that suggest torture or ill-treatment may have been the cause. This undoubtedly creates a broader culture of impunity.

The rule of law that is supposed to uphold civil and political liberties will not find its way to the Middle East region unless this system rife with corruption and cynicism is uprooted and citizens are shown that they can trust the process. It is imperative for leaders of the region to understand that a true and genuine transition to democracy goes hand in hand with real commitment and adherence to the rule of law and due process.