Enforced disappearance: The case of Tayseer al-Najjar

Comment: Friends and family of the Jordanian journalist who went missing in the United Arab Emirates fear he may he have been tortured by authorities, writes Fadi al-Qadi.

Perspectives

5 min read

Fadi al-Qadi

05 Feb, 2016

Jordanian‬ journalist Tayseer Najjar disappeared in ‪UAE‬ more than 50 days ago [Facebook]

The disappearance of Jordanian journalist Tayseer al-Najjar has once again brought to light the issue of enforced disappearances in Arab countries.

There is limited information available about Tayseer's disappearance, much of which has been provided by his wife, who lives in Amman. One thing that is known is that on December 3, Najjar was prevented from travelling to Jordan by security forces in Abu Dhabi, where the journalist works.

Ten days later, he was detained.

Al-Najjar's case is not the first instance in which the authorities in the UAE have resorted to "disappearing" someone.

Most notable is the case of Emirati academic Nassser bin Ghaith, who was detained on 18 August 2015, and remains to this day held in a secret prison.

UAE authorities have not reported the reason he was taken, the nature of the charges against him, nor have they allowed anyone to get in touch with him.

Bin Ghaith's case prompted Amnesty International to voice its concerns last year: "We fear that Dr Nasser bin Ghaith is at risk of torture and other ill-treatment at the hands of the country's state security body."

Tayseer al-Najjar's case

It is a widely held belief, though inaccurate, that because we know the identity of the party behind al-Najjar's arrest, his case is therefore not one of enforced disappearance.

But the descriptions of this particular case reflect definitions developed by the UN's Working Group on Enforced or Involuntary Disappearances.

These include the deprivation of liberty against the will of the person concerned, the involvement of government officials or at least their tacit approval, and the refusal to acknowledge the deprivation of liberty by concealing the fate of the disappeared person or his whereabouts.

First, regardless of the reasons that led security forces to take arbitrarily detain al-Najjar, he was taken without a declaration of official orders for his arrest or detention by the judicial authorities.

Usual procedure dictates that a warrant of arrest is first issued before any detention, a necessary requirement to ensure judicial supervision throughout the courses of investigation, arrest and indictment.

Najjar was taken without a declaration of official orders for his arrest or detention from the judicial authorities

If security forces in the UAE arrested Najjar simply to hold on to him for a while, for example, they are not exempt from presenting a cause for arrest or from a subsequent public pronouncement.

This is despite the fact that pre-trial detention or administrative detentions are not consistent with the principles of "innocent until proven guilty" or the necessity of first being charged with an offence.

On the contrary, pre-trial detentions undermine one of the most important foundations of the rule of law, namely the right to a fair trial.

What further supports al-Najjar's case as one of enforced disappearance is that neither his family nor a diplomatic authority was notified following his arrest of the cause of his detention, where he is being held, the period of arrest or the nature of the investigations conducted by the security forces against him.

Neither his family nor a diplomatic authority was notified following his arrest

Taking into consideration that Najjar is also an expatriate, living in a country where he is not a citizen, therefore making it harder to reach out to his friends or family, responsible authorities are required to exert the utmost efforts to inform the authorities of his home state about his arrest, the reason for the arrest and the nature of the action taken in his case.

Furthermore, since he can found in the possession of the UAE authorities, there is no reason to alternatively label Najjar as a "missing person."

The absence of any information, and the denial of his ability to appoint a lawyer to defend him or to seek legal advice in order to appeal to judicial bodies makes the authorities fully responsible for his forceful disappearance, in line with the central definitions set-down by the UN body in defining "enforced disappearances".

Since the period of Najjar's "disappearance" has been relatively long, there are fears that he has been exposed to torture.

Since the period of Najjar's 'disappearance' has been relatively long, there are fears that he has since been exposed to torture.

As the act itself, enforced disappearance is beyond the remit of the law, and since his disappearance began in that manner, there are no guarantees that legal violations have not occurred since he was been taken in.

That the UAE is not party to the International Convention for the Protection of All Persons from Enforced Disappearances, which came into force on 23 December 2010, does not make the matter of enforced disappearances in that state either legitimate or legal.

On the contrary, resorting to enforced disappearances means that the UAE has violated a person's fundamental right not to be subjected to arbitrary arrest or unlawful detention.

It also deprives the individual of seeking legal defence and access to a lawyer, deprives them of the right to a fair and equitable trail and prohibits them to any guarantees provided by law not to be subjected to torture.

The combinations of these rights are meant to form a foundation upon which the obligations of all states, including the UAE, are built in the defence of human rights.

Fadi al-Qadi is a Middle East and North Africa Human Rights Advocate, commentator and writer. Follow him on Twitter: @fqadi

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.