(This article was first published in Just Security on January 29, 2020.)
Although it’s a longstanding practice, the Kingdom of Saudi Arabia’s targeting of political dissidents has increasingly reached the front pages in the past few months. From the November federal indictment of Twitter employees accused of accessing more than 6,000 Twitter accounts, including those of prominent dissidents, on behalf of the Saudi government, to the news last week of a spyware file that may have been sent by Saudi Crown Prince Mohammed bin Salman to the phone of Jeff Bezos, Amazon founder and owner of the Washington Post (where murdered journalist Jamal Khashoggi worked). Khashoggi had become an outspoken critic of the Saudi government and the crown prince. He was killed in the Saudi Consulate in Istanbul on Oct. 2, 2018, a murder that the CIA concluded was personally ordered by bin Salman. These revelations have emerged against the backdrop of the Saudi government’s widespread resort to its Specialized Criminal Court—designed to counter terrorism—to suppress the country’s critics.
Since 2014, the Court has been repurposed to target peaceful reformers (like attorney Waleed abu al-Khair whose plight has been championed by the Tom Lantos Human Rights Commission); members of disfavored minority groups (such as Shia Muslims), who are disproportionally subject to persecution, arrest, and the death penalty; and journalists and activists who critique elements of Saudi Arabia’s domestic and foreign policy. Last year, Saudi Arabia executed the highest number of prisoners in recent years, including 37 detainees in one day, while more than a dozen women’s rights activists have been arrested even as the government has ostensibly begun to loosen restrictions on women’s daily activities. In addition to violating the Kingdom’s human rights obligations, this state of affairs undermines the country’s crucial counterterrorism agenda.
The prosecution of Salman Alodah, a reform-minded Saudi scholar whose plight was captured in his son’s moving essay in the New York Times, is particularly emblematic of this worrisome pattern of suppressing dissent. Documentation on Alodah’s criminal proceedings—including a translation of the prosecutor’s sparse and conclusory indictment, reports by the U.S. State Department and Amnesty International, press accounts, and statements by his family members—raise credible concerns that Alodah has been the victim of grave violations of his right to a fair trial as well as his freedoms of belief, speech, assembly, and religion and potentially his rights to be free from torture and other forms of cruel, inhuman and degrading treatment or punishment. At the moment, and following several postponements, Alodah is scheduled to appear in court within the next few weeks, when it is believed he will be sentenced. Understandably, it is difficult even for family members to obtain details of these proceedings, but the circumstances surrounding the criminal charges brought against Alodah and the acute fair trial violations that have since followed are troubling.
As a member of the United Nations, Saudi Arabia is obliged to uphold the foundational international human rights principles expressed in the U.N. Charter and the Universal Declaration of Human Rights (UDHR). Saudi Arabia has also ratified the Arab Charter on Human Rights (being, in fact, the first State to do so) along with the U.N. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and the Gulf Cooperation Council Human Rights Declaration. The Arab Charter, in its preamble, reaffirms the principles of the UDHR and the International Covenant on Civil and Political Rights. Together, these international instruments set forth a range of due process protections owed to anyone accused of committing a crime and also establish the inter-related freedoms of expression, religion, thought, and assembly. All of these rights find expression in customary international law, which is binding on all States unless they are on record as persistent objectors.
A legal analysis of the indictment and adjacent human rights reports indicates that the Saudi government has failed to respect and ensure a range of Alodah’s rights in connection with these legal proceedings. Given the extensive violations in the record, Alodah should be released from custody until the indictment can be amended to give him fair and adequate notice of the charges against him and to ensure that he has not been subject to arbitrary arrest or detention or to torture or other cruel, inhuman or degrading treatment. Moreover, Saudi Arabia should guarantee that Alodah—an Islamic scholar who has advocated a reform agenda premised on greater respect for human rights in Saudi Arabia—is not being prosecuted for exercising his freedom of thought, conscience, or expression; his freedom of assembly; or his freedom of religion, which he is entitled to enjoy individually and in community with others. Such an outcome is all the more warranted given that Alodah is at risk of being subjected to the death penalty, which—if executed—is irremediable.
Defects in the Indictment Against Alodah
Alodah was arrested in September 2017 and faces 37 separate charges—and the possibility of the death penalty—in an ongoing trial in Saudi Arabia’s Specialized Criminal Court. Defects in Alodah’s indictment suggest that Saudi Arabia has impermissibly derogated from its responsibilities to ensure Alodah’s rights to a fair trial and, in particular, his right to know the charges against him and adequately mount a defense. Only three of Mr. Alodah’s thirty-seven charges cite to any law (Royal Decree No. A/44, dated 3/4/1435H; Anti-Cyber Crime Law Royal Decree No. M/17, dated 8/3/1428H; Royal Decree No. 29/M, dated 25/6/1424H; and Royal Decree No. 16/M, dated 24/2/1435H). Saudi law includes expansive definitions of “terrorism” and has been criticized internationally for enabling the violation of Saudi citizens’ human rights under the pretext of promoting national security. The only allegations that sound of any conduct even approaching terrorism are vague and conclusory, calling into question the applicability of the few laws that are cited as well as the very jurisdiction of the Specialized Criminal Court in his case.
Additionally, the majority of the charges leveled against Alodah contain allegations and accusations that are impermissibly vague, such as the putative crime of “calling the people to hold the officials accountable” (Charge 23) or possessing a picture of himself with another (admittedly controversial) Islamic scholar (Charge 10). As a result, it is not at all clear how the conduct alleged in the indictment actually infringes the terrorism laws cited or falls within the jurisdiction of a counterterrorism court. All told, the prosecutor has sought the death penalty on the basis of an indictment that spans a mere four pages. Without further substantiation, Alodah cannot be adequately apprised of the factual and legal bases for such charges. This, in turn, undermines his ability to marshal the evidence, witnesses, and legal arguments necessary to effectively defend against them.
Article 4 of the Arab Charter expressly forbids States from using national security as a pretext to derogate from fair trials rights. In Article 7, the Charter ensures that individuals accused of committing a crime are entitled to a “lawful trial where defence rights are guaranteed.” These principles derive from the right “[t]o be informed promptly and in detail … of the nature and cause of the charge” and the right to adequately prepare and mount a defense—interlocking rights that are enshrined in the International Covenant on Civil and Political Rights. The insufficiency of Alodah’s indictment under all these legal instruments raises heightened concerns about the ability of Alodah to enjoy the full panoply of his fair trial rights, especially given that the prosecution is seeking the death penalty.
The Indictment Charges Protected Conduct: Conscience, Free Expression and Assembly
Alodah’s indictment encompasses charges that on their face infringe upon rights protected under international law. Nearly all of the 37 charges contained within the indictment target protected conduct and particularly the rights to free expression, religious belief, and affiliation. Alodah is a prominent political dissident and religious moderate who has criticized aspects of Saudi Arabia’s domestic and foreign policy. The allegations against him charge him with praising women who were arrested “for security issues” and articulating his opposition to the boycott of Qatar. They also include vague claims that he “exchang[es] emails with a group of people” and “receiv[es] phone text messages that are antagonistic to the Kingdom.” The beliefs for which he has apparently been indicted likewise span the scope of more weighty “calls for change in the Saudi government,” descriptions of “the Kingdom’s authorities as tyrannical,” and “his exposure of injustices towards prisoners and freedom of thought,” to innocuous expressions of “sarcasm about the government’s achievements” and observations that “the Saudi leadership monopolizes wealth” (Charges 2, 21, 23, and 30). Despite meriting the title of sheikh and despite his vocation as a cleric, the charge sheet lists Alodah’s profession as “incitant.”
In terms of his right to free assembly, the indictment also includes unsubstantiated allegations that Alodah holds leadership positions within the Muslim Brotherhood and has visited the son of the former Libyan President Muammar Gaddafi. He also stands accused of holding meetings “with the attendance of thinkers and educated people” and of joining “the International Union of Muslim Scholars” and the “European Council for Fatwa and Research.” Both in isolation and in the aggregate, these charges reveal that Alodah is actually not being prosecuted for his conduct but is being targeted for his beliefs, his speech, and his affiliations, particularly when his views oppose elements of Saudi Arabia’s domestic or foreign policy.
Article 26 of the Arab Charter provides that “[e]veryone has a guaranteed right to freedom of belief, thought and opinion;” Article 27 establishes the right to practice one’s faith; and Article 28 establishes that “all citizens have the right to freedom of peaceful assembly and association.” The Universal Declaration of Human Rights similarly guarantees the rights to freedom of thought, religion, opinion, expression, and peaceful assembly in Articles 18 through 20. Critically, Saudi Arabia cannot make unfettered use of the death penalty—Articles 10 and 11 of the Arab Charter expressly limit the imposition of the death penalty “only for the most serious crimes” and “under no circumstances … for a political offense.” Saudi Arabia cannot disregard these principles by treating Alodah’s beliefs as capital crimes in themselves, particularly when the charges against him are merely sketched out in such a sparse and ambiguous indictment.
Violations of Pre-Trial Detention Obligations
Besides these troublesome charges, external reporting provides reasonable grounds to believe that the Saudi government has violated its obligations to provide Alodah with certain pre-trial and due process protections, including his right to humane treatment while he is involved in a criminal process. Amnesty International and media report that Alodah had been held in solitary confinement without charge or trial for five months after his warrantless arrest in September 2017 until being hospitalized for unknown reasons in January 2018. Alodah’s son, a legal scholar at Georgetown University, wrote in a poignant op-ed that his father was denied access to lawyers until his trial began a year after his arrest. He further indicates that his father has been blindfolded, handcuffed, deprived of sleep and medical assistance, and interrogated throughout the day and night. These conditions are problematic in and of themselves; they also hinder Alodah’s ability to prepare a robust defense to the charges against him.
The UDHR, the Convention Against Torture, the Arab Charter, and customary international law all proscribe torture, which is defined by Article 1 of the Convention against Torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” to obtain information, to punish actual or alleged acts, to intimidate, or to discriminate. In addition, the Convention against Torture equally prohibits the imposition of cruel, inhuman and degrading treatment or punishment (CIDT) in Article 16. If true, the above descriptions of the pre-trial treatment accorded to Alodah raise credible claims that he was subjected to CIDT or even torture.
This concern is heightened by the fact that the indictment refers to “interrogation admission” as the major source of evidence against the accused. (The indictment indicates that “the investigation was concluded by accusing him of what has been attributed to him, due to the following evidences and proofs: his certified admission of what has been attributed to him…”). Saudi Arabia is obliged under both Article 12 of the Convention against Torture and Article 13 of the Arab Charter to investigate and redress any acts of torture alleged to have been committed within its jurisdiction. Additionally, Article 8 of the Arab Charter provides that no arrest can be made without a legal basis and that defendants cannot be held without being brought promptly before a judge. It appears that Alodah was afforded none of these pre-trial protections. In addition, the Convention Against Torture embodies a strict exclusionary rule, obliging State parties to ensure that no statement that is established to have been made as a result of torture is invoked as evidence in any proceedings (except against a person accused of committing torture). International law (such as articulated in article 6 of the International Covenant on Civil and Political Rights) is clear that this ultimate punishment should only be imposed following criminal proceedings that comply stringently with all fair trial and due process rights.
This review of Alodah’s indictment, as well as contemporaneous human rights and media reporting, leads inexorably to the conclusion that the circumstances around Alodah’s prosecution raise serious concerns about Saudi Arabia’s adherence to its obligations under international law and may well constitute multiple violations of Alodah’s right to a fair trial as well as other internationally protected human rights concerning freedom of religion, speech, and assembly, and the right to physical integrity and to humane treatment. This case also suggests that the Saudi authorities are treating the expression of critical political views as acts of terrorism and are diverting the attention of the Specialized Criminal Court from serious terrorism threats to the criminalization of dissent. Appeals to the U.S. Ambassador to Saudi Arabia John Abizaid and to the Saudi ambassador to the United States, Princess Reema bint Bandar bin Sultan, have gone unanswered and unheeded. It remains to be seen whether the high degree of attention to Alodah’s case will spare him from the death penalty and potentially offer him the chance to properly defend against the charges against him.