Libya and International Justice Symposium: The Quest for Accountability in Libya–A Pressing but Neglected Concern

[Kate Vigneswaran is a Senior Legal Adviser at the International Commission of Jurists, Middle East and North Africa (MENA) Programme, and Vito Todeschini is an Associate Legal Adviser, International Commission of Jurists, MENA Programme. This is the latest post in our symposium with Justice in Conflict on Libya and International Justice. Marieke Wierda’s contribution to the symposium has gone up at JiC and you can find it here.]

Accountability is typically absent from many discussions on Libya, despite the prevalence of gross human rights violations and crimes being committed on a widespread scale. Persistent political instability, resurgence of armed conflict and migrant “crisis” in Europe continue to obfuscate the urgent need to tackle past and ongoing human rights violations and abuses in the country.

The latest UN Human Rights Council (HRC) resolution on Libya on 22 March 2019, which preceded the outbreak of hostilities in April 2019, called on the Libyan authorities to “increase efforts to hold those responsible for crimes accountable.” This resolution is based on an apparent assumption that the Libyan criminal justice system can and does function effectively and is in a position to investigate, prosecute and provide remedies and reparation for crimes under international law committed in Libya. States and the International Criminal Court (ICC) also act based on a similar assumption or assessment. Indeed, the significant challenges impacting the fair administration of justice in Libya did not prevent the ICC from concluding that Libya had primary jurisdiction over Abdullah Al-Senussi, or States from engaging with Libyan authorities on issues related to the management of movement of migrants and refugees across Libya and to Europe.

As the International Commission of Jurists (ICJ) finds in its new report on the criminal justice system in Libya, such assumptions are unfounded. Simply put, the Libyan accountability framework is profoundly inadequate.

Despite a somewhat unified judiciary, in which judges and prosecutors operate under the authority of a single Supreme Judicial Council and apply the same Penal Code and Code of Criminal Procedure, current hostilities, insecurity and fragmentation in executive and legislative bodies mean accountability is unlikely to be achieved any time soon.

Courts are effectively non-functional in numerous places, with justice actors facing continuing intimidation, death threats and other forms of violence, in particular by non-state actors. As a result, there have been very few investigations and prosecutions of crimes under international law in Libya following the toppling of Gadhafi. In the very handful of cases that have been investigated and prosecuted, serious human rights violations have occurred, including violations of basic fair trial rights.

The case against 37 former Gadhafi-era officials, including Muammar Gadhafi’s son Saif Al-Islam and the former head of the intelligence service Abdallah Al-Senussi, both indicted by the ICC, is paradigmatic. The ICJ was able to obtain a copy of the judgement in the case, not yet made public despite being issued in 2015, which supports the findings by the United Nations Support Mission in Libya and the Office of the High Commissioner for Human Rights that the rights to liberty and a fair trial were violated. Many defendants were detained for up to two years without access to counsel or an independent judicial authority or being charged, and violations of the right to be tried in one’s presence, to a public hearing, to call and examine witnesses, and to be represented by a counsel occurred, impacting their ability to defend themselves effectively. For example, the accused were not permitted to examine Prosecution witnesses and were limited to two defence witnesses at trial. The Prosecutor and Court failed to investigate allegations of torture and ill-treatment; rather, information including statements of “confession” allegedly extracted through torture or other forms of coercion were admitted as evidence at trial.

The ICJ’s thorough assessment of the Libyan criminal justice system reveals that the current accountability challenges in Libya are rooted in an inadequate legal framework that fails to conform to international law and standards.

The Penal Code and supplemental criminal laws are not adequately equipped to provide justice for crimes under international law. The definitions of torture and ill-treatment, enforced disappearance, enslavement, and rape and other acts of sexual violence in the Penal Code, Law No. 10 of 2013 and Law No. 12 of 2010 are inconsistent with international definitions, and war crimes and crimes against humanity are not penalized at all. Superior responsibility as a mode of liability is not adequately provided for; the defence of “superior orders”, which should be invalid, is recognized; and overly broad amnesty laws and functional immunities prevent the effective prosecution or execution of sentence for many crimes.

The Code of Criminal Procedure fails to ensure even some of the basic rights guaranteed under international law, including the rights to:

• legal counsel from the moment of arrest and during questioning,
• be brought before a judicial authority within 48 hours of arrest,
• be informed of the charges,
• be visited by family and a doctor,
• habeas corpus,
• reparation for unlawful detention,
• adequate time and facilities to prepare a defence,
• remain silent,
• a re-trial in cases tried in absentia,
• the exclusion of evidence obtained through torture or ill-treatment, and
• appeal on questions of fact including in cases involving the imposition of the death penalty.

These gaps, combined with the inadequate guarantees of judicial independence and impartiality,  continue to negatively impact the fair administration of justice in Libya. A prosecutor may detain a person for up to two weeks and an investigating judge for 15 days and additional consecutive periods of 30 days without bringing them before an independent and impartial judicial authority. An accused may be questioned without their lawyer or without the possibility of intervention by their lawyer. There is no requirement that an accused can take copies of the case file and evidence relied upon by the Prosecution, and the accused cannot challenge evidence-gathering procedures if their lawyer was present at the time they occurred but did not object to them. There is no provision for the protection of witnesses, which is particularly problematic against the backdrop of a volatile security situation, where witnesses are frequently intimidated into not testifying.

The right to an effective remedy and reparations is also not guaranteed and amnesty laws significantly restrict satisfaction, restitution, rehabilitation and guarantees of non-repetition as forms of reparation. Some of these rights are provided for by the transitional justice law of 2013. However, the law is yet to be implemented.

There should be no illusions about the Libyan accountability framework and its capacity to ensure justice. The Libyan criminal justice framework needs extensive reforms. Although bringing it in line with international law and standards in the midst of an armed conflict and political fragmentation makes it a long-term project, action to remedy its structural deficiencies remains critical. The report sets out detailed recommendations not only in this regard, but also for reforms in the practices of law enforcement, prosecutorial and judicial actors. Victims of human rights violations and abuses must be shown that present-day Libya is different from Gadhafi’s Libya, which is contingent on introducing reforms necessary to achieve long-deserved justice.

Equally important, the findings of this ICJ Report demand a more proactive response from international actors to fill the accountability gaps, including through the establishment of a Commission of Inquiry or similar mechanism by the HRC to monitor, document, establish the facts and report on gross human rights violations and abuses committed in Libya, as well as to collect and preserve evidence of serious crimes for future criminal proceedings before national or international courts. States should also exercise their jurisdiction, including universal jurisdiction, to investigate and prosecute crimes under international law committed in Libya; ensure full cooperation with the ICC, including by enforcing arrest warrants; and refrain from entering into agreements with Libyan authorities in relation to the detention of migrants, refugees and asylum seekers and the provision of arms in situations where it is reasonably foreseeable that violations of international human rights law, international humanitarian law and/or international refugee law might occur.

Accountability through fair and effective judicial proceedings is a sine qua non condition to lasting peace and stability in the country. The ICJ report provides a detailed roadmap for the Libyan authorities and the international community on how to achieve this objective.