Make Urgent Justice System Reforms

Take Custody of All Detainees; Investigate Militia Abuses
December 22, 2011
(Tripoli) – Libya’s transitional government should urgently enact desperately needed reform to promote human rights and the rule of law after 42 years of dictatorship and eight months of war, Human Rights Watch said today.
Human Rights Watch was in Libya for two weeks beginning December 6, 2011, assessing human rights conditions under the new government. The Human Rights Watch delegation met with National Transitional Council (NTC) Chairman Mustafa Abdeljalil, Prime Minister Abdulrahim El-Keib, and the justice minister, general prosecutor, deputy foreign minister, and head of the newly established national human rights commission, all of whom offered their cooperation. The delegation also met with lawyers, judges, human rights activists, former political prisoners, military commanders, and families of the missing.
“The transitional Libyan government faces immense challenges and should urgently speed up its reforms,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch, who led the delegation for the meetings in Tripoli and visited Misrata. “We’re concerned about armed groups holding detainees outside the legal system, and there is a pressing need for new laws to protect free assembly and speech.”
Human Rights Watch highlighted three areas requiring urgent attention from the government, two of which require a functional criminal justice system:
(1) Ensure that all detainees are held under requirements of existing criminal law and that each detainee is brought before a judge. This requires demobilizing and reintegrating the many armed groups and bringing the thousands of detainees they hold into state custody, where, after a prompt legal review, they should either be charged with a clear criminal offense or released;
(2) Ensure speedy, transparent, and independent criminal investigations of credible allegations of abuses by anti-Gaddafi forces, such as the apparent executions of 53 people in Sirte in October and the ongoing harassment of the displaced residents of Tawergha. These investigations should lead to the prosecution of anyone responsible for crimes; and
(3) Reform the laws that restrict fundamental human rights, including the penal code, publications law, associations law, and assembly law provisions.
“A top priority is restoring the rule of law in Libya, and that will be tough to do with armed groups operating outside state control and with many detainees being held outside the law,” Whitson said. “With the conflict over, the government needs to insist on the transfer of all detainees to its custody, give their cases prompt legal review, and either bring charges or release them.”
On December 18, Human Rights Watch visited Saif al-Islam in Zintan. His physical conditions appeared good, but Libya’s transitional government should allow him immediate access to a lawyer, Human Rights Watch said.
Armed Groups, Detainees, and Investigation of Abuses
Libya currently has about 8,500 detainees in more than 60 places of detention across the country, according to the International Committee of the Red Cross. The government says it is gradually assuming custody of detainees, but the majority is still held by armed groups outside state control and without any legal authorization. The prime minister, justice minister, and general prosecutor all told Human Rights Watch that bringing these detainees into state custody is a top priority. None of them confirmed that detainees already in the government’s custody are being brought before a judge, as is required by international human rights law.
General Prosecutor Abdelaziz al-Hasadi and Justice Minister Ali Ashour told Human Rights Watch that they had begun screening the detainees who had been transferred into state custody, and releasing those against whom there was no evidence that they had committed a crime. Neither provided numbers for the detainees who have been screened or released.
The minister and general prosecutor said the exact number of detainees outside state control and all the places where those detainees were being held remains unknown.
The detainees held by armed groups are especially vulnerable to abuse, Human Rights Watch said. Human Rights Watch has previously visited detention centers run by armed groups in Tripoli, Zintan, and Misrata and in some facilities documented torture and serious mistreatment, including deaths in custody. None of these detainees had undergone a proper judicial review.
On this trip, Human Rights Watch revisited two prisons in Misrata, in the Wahda School and in the former Internal Security building, and both showed marked signs of improvement. Both facilities had been transferred to the custody of the state, and prosecutors were preparing to open formal investigations into detainees held there. Detainees in both facilities, interviewed in private, said detention conditions had improved.
Al-Hasadi said that his office has taken control of five prisons in the west: Jdeida and Maftuah in Tripoli, one in Zawiya, one in Zintan, and one in Misrata. The government is also running Kweifa prison in Benghazi, Ali Ashour said.
Government officials said the government does not have control over dozens of armed groups around the country, and that it is proving difficult to disarm them and to convince them to turn over detainees. El-Keib described a comprehensive approach involving jobs, training, scholarships, loans, and rehabilitation to reintegrate thousands of fighters into society. Proposed plans include absorbing armed groups or their members into the police, military, or national guard. He said the government could soon bring 25,000 militia members into the defense ministry and 25,000 others into the interior ministry.
“We have to give these men something to do; we can’t just take away their guns and tell them: ‘Thank you very much for your efforts, now go home,’” El-Keib told Human Rights Watch. “These armed groups are the ones that brought us victory, and we must take care of them.”
At the same time, Human Rights Watch urged the NTC not to tolerate serious crimes, and to initiate criminal investigations into allegations of serious abuses by armed groups. These include the apparent executions of 53 Gaddafi supporters in Sirte on October 20, the apparent executions of Muammar and Muatassim Gaddafi, and the ongoing persecution of the more than 20,000 displaced residents of Tawergha, some of whom are suspected of having committed atrocities with Gaddafi forces and are unable to return to their homes near Misrata.
Detention outside the law should also be investigated and prosecuted as a serious crime, Human Rights Watch said. Achieving justice requires a functioning criminal justice system with independent judges and prosecutors who are able to investigate crimes speedily, secure the evidence, and prosecute those responsible with the full support of the NTC and government. Apart from a commission of inquiry into the deaths of the Gaddafis, Human Rights Watch is not aware of any criminal investigation into other alleged crimes by anti-Gaddafi armed groups.
Abdeljalil, the NTC chairman, told Human Rights Watch that the commission of inquiry looking into the circumstance of Muammar Gaddafi’s death had begun its work and would release its findings when the work was complete and security conditions had improved. Preliminary findings suggested that Gaddafi was killed in fighting between pro and anti-Gaddafi forces, he said.
“Investigating those responsible for the worst abuses by all sides of the conflict will reassure all Libyans that in the new Libya, justice is for all, not just the victims of Gaddafi,” Whitson said. “Ignoring the apparent execution of prisoners in the name of national unity is a recipe for national disunity.”
Revise Laws That Restrict Basic Freedoms
Human Rights Watch highlighted the importance of revising the country’s existing laws that severely restrict freedom of speech, association, and assembly, making punishable by death or imprisonment the expression of opinions that challenge the government or criticize government officials. For example, article 159 of the penal code bans speech that “fuels civil war or destroys national unity;” article 198 bans speech that “insults public officials;” article 167 bans speech that “overturn[s] the political, social, or economic disciplines of the state;” and article 230 bans “offending Islam.” Articles 166 and 167 also restrict association and assembly, while Law 71 on Association explicitly limits free association.
Chairman Abdeljalil stated that Libya’s transitional Constitutional Declaration had primacy over existing laws that contravene the human rights principles of the declaration, which includes the rights to free speech and association. The chief of staff to the NTC chairman said the new government was beginning to prepare a new penal code.
The Constitutional Declaration does list several rights under international law, including freedom of expression and association, and states that laws inconsistent with the declaration shall no longer be applied. However it does not say who shall decide which laws are inconsistent, and does not include any mention of several other basic rights under international law, notably the prohibition on arbitrary detention.
Human Rights Watch urged the NTC, as the interim executive and legislative authority, to, at a minimum, suspend provisions of the penal code and other laws that restrict fundamental rights, pending the eventual adoption of new laws. It should clarify that, at a minimum, all rights guaranteed by international treaties ratified by Libya shall apply, and that such rights shall not be interpreted in Libya in any weaker manner than by international law. The Constitutional Declaration is not an adequate protection while these laws remain on the books and open to being used, Human Rights Watch said.
“It will be difficult to have fair and free elections when Libyans could still be prosecuted for criticizing government officials,” Whitson said. “The Libyan government should allow citizens to choose for themselves what speech they want to hear.”
Chairman Abdeljalil explained his views on polygamy, saying that the existing legal restrictions on polygamy in Libya, which include requiring a man to obtain approval from a judge and his first wife before marrying a second woman, were suspended under the Constitutional Declaration. These restrictions contravened sharia law, he said, which according to the transitional constitutional is the main source of legislation.
“The Quran does not contain any such limitations on a man’s right to marry a second, third, or fourth wife, and so Libyan laws that create these restrictions are suspended,” Abdeljalil told Human Rights Watch.
The Constitutional Declaration also states, though, that “Libyans are equal before the law; they shall enjoy equal civil and political rights, shall have the same opportunity, and be subject to the same public duties and obligations, without distinction” on various grounds, including sex.
Human Rights Watch urged the NTC chairman and other government officials to respect the country’s obligations under international human rights law to ban laws that discriminate against women, including the Convention on the Elimination of All Forms of Discrimination against Women, which Libya has ratified. Human Rights Watch noted that sharia has multiple interpretations on issues including polygamy, and called on the government to rely on interpretations that align the country’s laws with its international legal obligations. The Maputo Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which Libya has ratified, states, “Women and men enjoy equal rights
and are regarded as equal partners in marriage” and that “[m]onogamy is encouraged as the preferred form of marriage.”
“Libyan women did not struggle against dictatorship only to see their rights diminished,” Whitson said. “The new Libya should protect and preserve equal rights for women, and ensure they too benefit from the training and assistance they need to care for their own families.”
NTC Transparency
Libyans have been protesting recently in Benghazi against the NTC’s lack of transparency, complaining that the NTC has provided limited information about its members, its meetings, its decisions, and its finances.
“Who is in the NTC? We don’t know. When are their meetings being held? We don’t know,” one lawyer and civil society activist said. “What are they deciding? We don’t know. And of course we have no idea about how they are handling Libya’s finances. We only know that they are making decisions and passing laws on our behalf, with virtually no consultation.”
Such lack of transparency affects the drafting of key laws on human rights. Government officials also explained the draft law on Transitional Justice, which they say will create a truth and reconciliation commission. As an example of poor transparency, however, senior officials gave Human Rights Watch varying versions of whether the law had actually been passed.
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