R 041431Z JUN 07
FM USMISSION GENEVA
TO SECSTATE WASHDC 4268
USMISSION USUN NEW YORK

UNCLAS GENEVA 001418 
 
 
STATE FOR IO-RHS, DRL-MLA, L-HRR 
 
E.O. 12958: N/A 
TAGS: PHUM UNHRC
SUBJECT: Amine Mohammad Al-Bakry, detainee - #40 in Geneva 2006 
Communications Log 
 
¶1.  Mission has received a communication from Leila Zerrougui, 
Chairperson-Rapporteur for the Working Group on Arbitrary Detention 
regarding the case of Amine Mohammad Al-Bakry, a Yemeni citizen, 
detained at the US Air Force Base of Baghram, Afghanistan. Letter 
dated 11 December 2006 referenced in the communication was 
transmitted to the Department by Geneva 03120 dated 12/14/2006. 
 
This communication has been sent via e-mail to IO-RHS and is number 
40 on the Geneva 2006 Communications Log. 
 
¶2.  Begin text of letter: 
Dear Mr. Ambassador, 
The Commission on Human Rights, by its resolution 2003/31 entitled 
"Question of arbitrary detention", decided to renew, for a 
three-year period, the mandate of the Working Group on Arbitrary 
Detention and invited the Working Group in discharging its mandate, 
to continue to seek and gather information from Governments and 
intergovernmental and nongovernmental organizations, as well as from 
the individuals concerned, their families or their legal 
representatives. The Human Rights Council assumed the mandate by its 
decision 1/102 of 30 June 2006. 
 
I wish to refer to the letter dated 11 December 2006 addressed to 
you concerning a case of alleged arbitrary detention which was 
reported to have occurred in the United States Air Force Base of 
Baghram, Afghanistan. 
 
The Working Group decided, taking into consideration all the 
pertinent information at its disposal to adopt, on 11 May 2007, its 
Opinion No. 11/2007 (Afghanistan and United States of America) (copy 
attached). This Opinion will be reproduced in the report which the 
Working Group will present to the Human Rights Council. 
Accept, dear Mr. Ambassador, the assurances of my highest 
consideration. 
Leila Zerrougui, Chairperson-Rapporteur, Working Group on Arbitrary 
Detention. 
End text of letter. 
 
Begin text of attachment. 
OPINION No. 11/2007 (Afghanistan and United States of America) 
 
Communication addressed to the Government on 11 December 2006 
 
Concerning: Mr. Amine Mohammad AI-Bakry 
 
The States are Parties to the International Covenant on Civil and 
Political Rights 
 
¶1. The Working Group on Arbitrary Detention was established by 
resolution 1991/42 of the Commission on Human Rights. The mandate of 
the Working Group was clarified by resolution 1997/50, and extended 
by resolution 2003/31. It was assumed by the Human Rights Council 
through its decision 1/102 of 30 June 2006, Acting in accordance 
with its methods of work, the Working Group forwarded the 
above-mentioned communication to the two Governments concerned. 
 
2 The Working Group regrets that neither the Government of 
Afghanistan nor the Government of the United States of America have 
replied. 
 
¶3. The Working Group regards deprivation of liberty as arbitrary in 
the following cases: 
 
¶I. When it manifestly cannot be justified on any legal basis (such 
as continued detention after the sentence has been served or despite 
an applicable amnesty act (category I); 
 
II. When the deprivation of liberty is the result of a judgment or 
sentence for the exercise of the rights and freedoms proclaimed hi 
articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration 
of Human Rights and also, in respect of States parties, in articles 
12,18,19,21,22,25,26 and 27 of the International Covenant on Civil 
and Political Rights (category II); 
 
III. When the complete or partial non-observance of the 
international standards relating to a fair trial set forth in the 
Universal Declaration of Human Rights and in the relevant 
international instruments accepted by the States concerned is of 
such gravity as to confer on the deprivation of liberty,or whatever 
kind, an arbitrary character (category III). 
 
¶4. According to the source, Mr. Amine Mohammad Al-Bakry, born on 29 
December 1968, of Yemeni nationality, residing at Old Airport Road 
in the city of Al Medinah, Saudi Arabia, is the director of a 
private company specialized in the import and export of diamonds and 
precious stones, The company is owned by Mr. Djamel Ahmed Khalifa, 
husband of a sister of Osama ben Laden. 
 
¶5. The source reports that Mr. Al-Bakry was abducted on 28 December 
2002 in Thailand, during a business trip to Bangkok, allegedly by 
agents of the intelligence services of the United States or of 
Thailand. During the whole year 2003, his whereabouts were unknown. 
The Thai authorities confirmed to Mr. Al-Bakry's relatives that he 
had entered Thailand's territory but denied knowing his whereabouts. 
In January 2004, Mr. Al-Bakry's relatives received a letter from him 
through the International Committee of the Red Cross (ICRC), informing 
them that he was kept in detention at the United States Air Force Base 
of Baghram near Kabul, Afghanistan. 
 
¶6. The source states that Mr. Al-Bakry was detained due to his 
commercial connections with Mr. Khalifa. Mr. Khalifa himself was 
arrested in San Francisco, United States of America, and, after four 
months in detention, expelled to Jordan. In Jordan he was detained 
during two months without charges or trial. He is back in Saudi 
Arabia in freedom. The source considers that Mr. Khalifa was 
detained due to his family connection with Osama ben Laden. 
 
¶7. The source alleges that Mr. Al-Bakry has been detained for (at 
the time of submission of the communication) more than 41 months in 
the military base of Baghram without any charge laid against him. No 
trial date has been set. Furthermore, he has been refused access to 
defense lawyers and the only visits he may receive are those from 
representatives of the ICRC. Mr. Al-Bakry is not able to challenge 
the lawfulness of his detention or to appear before a competent, 
independent and impartial judicial authority. 
 
¶8. According to the source, States are obliged to apply the norms of 
the International Covenant on Civil and Political Rights to all 
persons under their jurisdiction. The International Covenant thus 
applies in all territories under the effective control of the Afghan 
and the US Governments and to all persons under their jurisdiction. 
The United States has not temporarily derogated from of its 
obligations under the International Covenant on Civil and Political 
Rights in conformity with Article 4 of the Covenant and with General 
Comment No. 31 (2004) of the Human Rights Committee (CCPR/C/2l/Rcv. 
l/Add.13, para.10). 
 
¶9. The source argues that Mr. Al-Bakry has been denied the right to 
a fair trial recognized by Articles 105 and 106 of the Third Geneva 
Convention and Article 75 of its Additional Protocol I. Both 
Governments deny prisoner of war status to the persons detained at 
Baghram military base. Consequently, international human rights law 
should be applied. The source adds that the right to a fair trial is 
inalienable and constitutes a guarantee necessary to the effective 
enjoyment of all human rights and the preservation of legality in a 
democratic society. 
 
II. 
¶10. The Working Group would have welcomed the cooperation of the two 
Governments concerned. In the absence of any reply from them, the 
Working Group considers that the allegations of the source have not 
been disputed. 
 
III. 
¶11. The Working Group notes that Mr. Al-Bakry was deprived of his 
freedom in Thailand. There is no indication that the circumstances 
under which he was arrested in any way involved an armed conflict 
which could trigger the applicability of international humanitarian 
law. In this context, the Working Group recalls that it has 
previously noted "that the global struggle against international 
terrorism does not, as such, constitute an aimed conflict for the 
purposes of the applicability of international humanitarian law" 
(footnote 1). As stated also by the International Committee of the 
Red Cross: "When armed violence is used outside the context of an 
armed conflict in the legal sense or when a person suspected of 
terrorist activities is not detained in connection with any armed 
conflict, humanitarian law does not apply. Instead, domestic laws, 
as well as international criminal law and human rights govern, [...] 
The designation 'global war on terror' does not extend the 
applicability of humanitarian law to all events included in this 
notion, but only to those which involve armed conflict." (footnote 
2). The rules of international law governing Mr. Al-Bakry's 
detention are therefore to be found in international human rights 
law, in particular in the International Covenant on Civil and 
Political Rights, to which both the United States of America and 
Afghanistan are parties (as well as, it might be added, Thailand). 
 
¶12. Article 9 of the Covenant provides in paragraph 1 that 
"[e]veryone has the right to liberty and security of person. No one 
shall be subjected to arbitrary arrest or detention. No one shall be 
deprived of his liberty except on such grounds and in accordance 
with such procedure as are established by law." Paragraph 4 of 
Article 9 enshrines the right to judicial review of the legality of 
detention. It reads: "Anyone who is deprived of his liberty by 
arrest or detention shall be entitled to take proceedings before a 
court, in order that that court may decide without delay on the 
lawfulness of his detention and order his release if the detention 
is not lawful." 
 
¶13. Mr. Al-Bakry was secretly arrested by unidentified agents 
probably belonging to United States information services, or to 
their Thai counterparts acting on instructions from the US services, 
in Bangkok, where - according to the undisputed account of the 
source - he was carrying out his habitual business. Nobody, not even 
his close family, was informed of this detention. 
 
Footnote 1: Situation of detainees at Guantanamo Bay, Report of the 
Chairperson-Rapporteur of the Working Group on Arbitrary Detention, 
Leila Zerrougui; the Special Rapporteur on the independence of 
judges and lawyers, Leandro Despouy; the Special Rapporteur on 
torture and other cruel, inhuman or degrading treatment or 
punishment, Manfred Nowak; the Special Rapporteur on freedom of 
religion or belief, Asma Jahangir; and the Special Rapporteur on the 
right of everyone to the enjoyment of the highest attainable 
standard of physical and mental health, Paul Hunt, E/CN.4/2006/120, 
paragraph 9 and note 20. 
 
Footnote 2: Official Statement of the International Committee of the 
Red Cross (ICRC) dated 21 July 2005 regarding "The relevance of IHL 
in the context of terrorism" (available at http://www.icrc.org 
/web/eng/siteeng0.nsf/html/ 
terrorism-ihl-210705?OpenDocumemt) 
 
In January 2004, his family learned - only through the International 
Committee of the Red Cross - that he has been detained since a date 
unknown at the Baghram US Airbase in Afghanistan. Except for ICRC 
visits and the possibility to transmit letters through them, he is 
held there completely incommunicado. He has not been informed of any 
charges raised against him. He has not had any possibility to 
challenge the lawfulness of his situation before a judicial 
authority, as Article 9(4) ICCPR requires for all cases of 
detention, whether criminal charges are raised in judicial 
proceedings or detention remains administrative. No lawyer has been 
able to visit him. Accordingly, the deprivation of liberty suffered 
by Mr. Al-Bakry since December 2002, i.e. for the last 
four-and-a-half years, is in violation of Article 9 ICCPR, 
paragraphs 1 and 4, which are the applicable provisions of 
international law, and constitutes a very serious form of "arbitrary 
detention" and an extremely grave violation of his human rights. 
 
¶14. This arbitrary detention is directly perpetrated by the United 
States of America, who are therefore responsible for it. The Working 
Group notes, however, that at least since January 2004 Mr. Al-Bakry 
has been detained on Afghan soil. All the information in the public 
domain and available to the Working Group indicates that the 
Government of Afghanistan is well aware of the fact that the United 
States Government is holding detainees in situations such as Mr. 
Al-Bakry's at Baghram Air Base, a military base the US runs with the 
consent of the Government of Afghanistan since the end of the 
international armed conflict at the end of the year 2001. The 
Government of Afghanistan has not informed the Working Group of any 
measures taken to address this matter. The Working Group recalls 
that under Article 2 of the Covenant, each State Party assumes not 
only the obligation not to actively engage in violations, but also 
"... to ensure to all individuals within its territory and subject 
to its jurisdiction the rights recognized in the present 
Covenant"(Footnote 3).  This obligation is incompatible with the 
acceptance of situations of year-long arbitrary detention of 
individuals on one's territory by a foreign power. The Working Group 
can therefore only conclude that Afghanistan also bears 
responsibility for the arbitrary detention of Mr. Al-Bakry. 
 
(Footnote 3) The Working Group recalls that the Human Rights 
Committee has clarified that "States Parties are required by article 
2, paragraph 1, to respect and to ensure the Covenant rights to all 
persons who may be within their territory and to all persons subject 
to their jurisdiction." (General Comment No. 31, CCPR/C/2 I/Rev. 1 
/Add. 13, paragraph 10). 
 
¶15. The Working Group notes that the role of the authorities of 
Thailand in the transfer of Mr. Al-Bakry to US custody is not clear. 
In any event, Mr. Al-Bakry having been only briefly in the custody 
of the Thai authorities - if at all - and this detention having 
occurred more than four years ago, the Working Group did not 
consider it necessary to bring the communication to the attention of 
the Government of Thailand and to seek its observations. The Working 
Group notes, however, that in its most recent report (A/HRC/4/40) it 
called attention with great concern to the question of irregular 
extraditions referred to as "extraordinary renditions", of which Mr. 
Al-Barkry's case would appear to be an example. In this respect, the 
Working Group reiterates that "[t]he practice of "renditions", i.e. 
the informal transfer of a person from the jurisdiction of one State 
to that of another on the basis of negotiations between 
administrative authorities of the two countries (often the 
intelligence services), without procedural safeguards is 
irremediably in conflict with the requirements of international law. 
When a Government eludes procedural safeguards, in particular the 
affected person's right to be heard, it cannot in good faith claim 
that it has taken reasonable steps to protect that person's human 
rights after removal, including the right not to be arbitrarily 
detained. As a consequence, it will share responsibility for ensuing 
arbitrary detention." (A/HRC/4/40, paragraph 50). 
 
¶16. In the light of the foregoing, the Working Group renders the 
following Opinion: 
 
The deprivation of liberty of Mr. Al-Bakry is arbitrary, being in 
contravention of articles 2 and 9 of the International Covenant on 
Civil and Political Rights and falls within category I of the 
applicable categories to the consideration of cases submitted to the 
Working Group. Both the Government of the United States of America 
and the Government of Afghanistan bear responsibility for the 
violation of his right to liberty. 
 
¶17. Consequent upon the Opinion rendered, the Working Group requests 
both Governments to take the necessary steps to remedy the 
situation, and to bring it into conformity with the standards and 
principles set forth in the Universal Declaration of Human Rights 
and the International Covenant on Civil and Political Rights. 
Adopted on 11 May 2007. 
End of text of attachment. 
 
Tichenor 
 
 
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