JURIST Guest Columnist Ryan Suto, Syracuse University College of Law Class of 2013, discusses how the Bahrain Independent Commission of Inquiry acts as a method of rule-of-law in post-conflict resolution and acknowledges its limitations…

On February 14, 2011, Bahrain joined the Arab Spring when thousands of protesters filled the streets, demanding economic reforms from King Hamad bin Isa al-Khalifa and the government. Over the course of a month the scene worsened, as violence and police responses escalated. As the protests continued, a sectarian element became apparent: while the government is headed by the Sunni al-Khalifa family, a majority of protesters were Shia. A contention of the opposition is that the ruling Sunni elite is responsible for politically and economically disenfranchising the kingdom’s Shia majority.

Some officials have described the government response as panicked, as many protesters were jailed and quickly convicted of crimes. The world watched the events unfold, as many human rights observers denounced the Bahraini government’s handling of uprisings and protests. While smaller protests and incidents in Bahrain littered the international news, the most extensive police crackdowns subsided.

In July 2011, the king ordered the beginning of the National Dialogue, a forum consisting of 300 seats filled with individuals and organizational representatives chosen by the government. While the Dialogue had a promising beginning, al Wefaq, the major opposition party in parliament, pulled out of the talks because the group felt they were numerically unrepresented. Al Wefaq held 18 out of 40 seats in the lower elected house of parliament but only five seats out of about 300 in the National Dialogue. Because of this, despite producing a wealth of information regarding the concerns of Bahrainis, the National Dialogue is largely viewed as a failure.

Earlier in June of that year the king ordered the establishment of the Bahrain Independent Commission of Inquiry (BICI), chaired by Professor M. Cherif Bassiouni, as an independent investigative commission. The BICI was tasked to independently analyze and evaluate the actions of the government of Bahrain during the protests and to make recommendations regarding future government actions.

On November 22, 2011, that body produced a report [PDF] which criticized many government actions and made concrete recommendations on government reform regarding human rights. Possibly due to this criticism, all major stakeholders in Bahrain have viewed the BICI as truly independent and have accepted the resulting report, which made recommendations such as:

• • The creation of independent bodies to investigate claims of human rights violations;
• • The compensation of victims of human rights violations and their families;
• • The review of convictions and sentences of individuals detained during the unrest;
• • Changes to the training of security forces and legal personnel to promote and protect human rights;
• • Increased human rights and diversity education; and
• • The restoration of destroyed Shia mosques.

In late May 2012, Bahrain underwent its second Universal Periodic Review by the UN Human Rights Council wherein calls to implement the BICI recommendations were ubiquitous. It is clear that the BICI report focused on institutional failings of the government branches involved with quelling the protests, as well as functioning of the judicial system. Notably, the document did not address why individuals and groups were protesting in the first place, made no political recommendations regarding the structure of parliament or the status of Bahrain as a kingdom, had little to say in the way of programs for national reconciliation nor discussed the station of foreign workers in Bahrain, who make up 54 percent of the nation’s population. Moreover, while the catalyst for the BICI was only in early 2011, sectarian clashes are not foreign to Bahrain. As such, many of the issues brought to the fore of national consciousness laid dormant in the minds of Bahrainis for decades.

After the recommendations were accepted by the government of Bahrain, a follow-up committee was created to track the implementation of the BICI recommendations. That body released its first report on March 20, 2012. Any honest assessment of the government’s response to the BICI recommendations will show that the response has been slow and steady. The follow-up committee has stated that Bahrain has made, inter alia, the following efforts:

• • All criminal charges related to the protests have been reviewed by civilian courts and cameras have been installed in order to record any custodial investigations;
• • A vast majority of employees dismissed for absenteeism during the protests have been reinstated;
• • Five mosques are nearly rebuilt, work continues on nine others and eight more are slated to begin; and
• • The government has engaged in efforts to compensate victims’ families and victims of torture.

While the government of Bahrain cannot be comprehensively viewed as a single bloc (an important divide exists between hardliners and softliners), actions toward the implementation of the BICI recommendations have lagged behind international criticism — it is as if the government acts only to alleviate pressure from important external actors. Regardless of the reasons, many of the government responses are real and can be seen throughout the small kingdom.

While the BICI and its implementation are both far from perfect, the format itself is promising. The creation of the BICI by the Bahraini government and the acceptance of its findings by both the government and major opposition groups have created a common ground upon which any national reconciliation or dialogue may stand. Indeed, one can argue that a flaw of the National Dialogue effort in July 2011 was that it preceded the findings of the BICI. This is because the report includes a narrative which gives Bahrainis a common and objective account of the events following February 14, 2011, as well as recognizing that wrongs have been committed. This is a crucial step as the BICI has placed a mirror in front of Bahrain, allowing the government to honestly reflect and to make possibly fundamental changes. However, as of now the government has only reflected when its eyes have been held open by the scrutiny of the international community.

Presently, the international reconciliation toolkit includes truth commissions (The Truth & Reconciliation Commission in South Africa), indigenous conceptions of justice (Gacaca courts in Rwanda) and political process (Loya Jirga in Afghanistan), consociational democracy (Bosnia & Herzegovina and Iraq), constitutional development (Nepal) and civil society stewardship (Northern Ireland). While not all of these examples are viewed as successes, each offers a lesson for future reconciliation efforts. Bahrain now offers another alternative: the independent commission. After a conflict, an independent commission, such as the BICI, can create an objective narrative of the events of the conflict, assess causes and offer solutions. While the BICI itself neglected causes and narrowly focused on institutional reforms within the structure of the government, it can be taken as a precedent for future independent commissions with more expansive mandates. Thus an independent commission, along with other post-conflict reconciliation policies, can point the way toward transitional justice and institutional capacity building.

Unfortunately for Bahrain, due to the restraint of the report itself even full implementation of the BICI recommendations cannot complete their national reconciliation needs. Deep and serious questions remain unanswered in Bahrain such as what constitutes an acceptable level of economic and political inequality. What form of governance do Bahrainis want? What does it mean to be Bahraini? These questions will need to be addressed both within Bahraini society and the Bahraini government’s treatment of those residing within the kingdom’s physical boundaries. While Crown Prince Salman bin Hamad bin Isa al-Khalifa represents a moderate force within the government which is most able to navigate compromises between the hardliners and the opposition, he and his faction have soured with respect to reconciliation efforts due to early drawbacks. Without his leadership and major concessions from either the opposition forces or the hardliners, reconciliation prospects remain bleak in Bahrain.

Ryan Suto is a JD/MA in International Relations Candidate at Syracuse University. He worked with the UN Development Program in Manama, Bahrain this past summer.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Ryan Suto, Bahrain Independent Commission of Inquiry: Rule of Law in Post-Conflict Resolution, JURIST – Dateline, Sept. 5, 2012, http://jurist.org/dateline/2012/08/ryan-suto-bahrain-resolution.php.