Last month, The UN Committee on the Rights of the Child called on Saudi Arabia to end its violations of children’s human rights including “severe” discrimination against girls, executions by stoning, and torture through lashings and amputations.
The head of the Saudi Arabian delegation to the UN Committee — and Chairman of the Saudi Human Rights Commission — Bandar Bin Mohammed Al-Aiban defended such violations, on the grounds that “Islamic sharia (law) was above all laws and treaties, including the Convention on the Rights of the Child.”
Indeed, rather than being held accountable for such heinous violations, Saudi Arabia was rewarded last week with a seat on the UN Human Rights Council, whose mandate is the promotion and protection of human rights, underpinning the culture of impunity that reigns in these matters.
As it happens, this same head of the Saudi Human Rights Commission was a “special guest” at a Canadian government roundtable on human rights this past week.
Like many Canadians, my first thoughts on hearing these developments were of imprisoned Saudi Blogger Raif Badawi. Simply put, Mr. Badawi has been languishing in a Saudi prison since his first arrest in 2012, and his subsequent sentencing in 2014 to 10 years imprisonment and 1000 lashes, itself constitutive of torture and a standing violation of international human rights law. Raif Badawi’s “crime”? Establishing an online forum and exercising his right to freedom of expression.
What is particularly ominous, is learning on Tuesday that there has been another flogging in a prison adjacent to that of Mr. Badawi’s, and also receiving information from a reliable source that Mr. Badawi’s lashings are soon to resume. Clearly, Saudi Arabia would not have engaged in such flagrant violations of human rights on the eve of its election to the UN Human Rights Council last week. But this information conveyed to us by the Raif Badawi Foundation is now particularly threatening in the aftermath of its election, and where Saudi Arabia need not be concerned about its candidacy.
Mr. Badawi’s imprisonment and torture constitute a standing violation of Saudi Arabia’s own domestic law and Sharia law, and Saudi Arabia’s violations of their international legal obligations. Raif Badawi’s flogging is an especially egregious breach of the UN treaty prohibition on torture which Saudi Arabia ratified in 1997, and of its undertakings as a member of the UN Human Rights Council to promote and protect human rights.
When Minister Dion last raised Mr. Badawi’s case with Saudi officials, they emphasized his lack of Canadian citizenship as precluding Canada from intervening on his behalf. As someone who has represented political prisoners for some 40 years in such diverse jurisdictions as the Former Soviet Union (Andrei Sakharov), Egypt (Saad Eddin Ibrahim), and South Africa (Nelson Mandela) — and now represents Raif Badawi — this is the first time any country has questioned my right — and that of Canada — to make representations on behalf of a political prisoner because that political prisoner was not a citizen of Canada.
The United Nations Working Group on Arbitrary Detention determined that Mr. Badawi’s imprisonment was illegal and called for his release.
Indeed, the Saudi position is wrong both as a matter of fact and law in 10 different respects:
1. The imprisonment of Mr. Badawi results from the criminalization of his fundamental freedoms of religion and expression — such criminalization itself being a violation of Saudi domestic law, the Arab Charter which Saudi Arabia has ratified, and international treaties to which Canada is a state party, and where obligations are owing by Saudi Arabia both to Canada and the international community in this regard.
2. Mr. Badawi is a victim of torture — a violation of the international treaty’s prohibition against torture, and once again a violation of Saudi Arabia’s obligations to Canada as a state party.
3. Mr. Badawi’s family — his wife and three children — have been given refugee status and are living in Quebec — providing a clear and demonstrable Canadian nexus and principles relating to family reunification and the like.
4. The Quebec National Assembly last month unanimously called on the Canadian Government to seek Mr. Badawi’s release, and itself granted a special “certificate of humanitarian selection” to facilitate his immigration to Canada, of particular relevance given the joint Federal-Québec responsibility for immigration.
5. The House of Commons unanimously adopted a resolution calling on the Government of Canada to seek and secure Mr. Badawi’s release and enable him to be reunited with his family in Canada, as did the Foreign Affairs Subcommittee on International Human Rights.
6. The United Nations Working Group on Arbitrary Detention determined that Mr. Badawi’s imprisonment was illegal and called for his release.
7. Mr. Badawi’s torture and imprisonment is a violation of Saudi Arabia’s responsibilities as a member of the UN Human Rights Council and its obligations to promote and protect human rights.
8. A series of UN Special Rapporteurs — including the UN Rapporteurs on Torture, and on Freedom of Expression — and with which Canada is engaged — have called for Mr. Badawi to be released.
9. Mr. Badawi was denied the right to a fair trial in that he was convicted by a court that lacked jurisdiction, and was deprived of his right to legal counsel of his choosing. In fact, Mr. Badawi’s chosen attorney, the human rights defender Waleed Abu al-Khair, was himself sentenced to 15 years imprisonment in 2014; and the “review” by the Supreme Court was conducted without Mr. Badawi’s legal representative being permitted to make submissions, itself contrary to Saudi domestic law.
10. The judgment against Mr. Badawi was thus rendered contrary to Islamic law, Saudi procedural rules and the national and international standards on the right to a fair trial.
Canada not only has standing to seek Mr. Badawi’s release, but Raif Badawi’s release would itself be probative of Saudi Arabia’s compliance with its own domestic law, Sharia law, its international obligations, and its undertakings to Canada.
Irwin Cotler is international legal Counsel to imprisoned Saudi Blogger Raif Badawi and former Minister of Justice and Attorney General of Canada. He recently founded the Raoul Wallenberg Centre for Human Rights.