Libya's Justice Pandemonium

JURIST Guest Columnist Hanan Salah of Human Rights Watch says that if the Libyan government does not take immediate steps to rectify its dysfunctional justice system it risks a complete collapse...

This past week, Libya's official television station broadcasted a series of videos featuring al-Saadi Gaddafi, a son of the deposed Libyan leader Muammar Gaddafi, from what appears to be his jail in Tripoli. Al-Saadi, who is awaiting trial and is wearing a blue prison suit, "apologizes" to Libya's people and the authorities for any "destabilization" he may have caused, asks for "forgiveness" and "confesses" to working against the current political system, while giving detailed accounts of his interactions with prominent figures in Libya before he was extradited.

The last time I recall seeing "confessions" of this sort on Libyan television was in the summer of 2011, as the uprising against Gaddafi was raging and NATO carried out its air campaign against the regime. I vividly remember following the nightly show "confessions" of anti-Gaddafi fighters the government had caught and made to "confess" to serious crimes—while under visible duress. The purpose seemed to be to intimidate and frighten the opposition.

So it is a macabre twist that Gaddafi's son is now the one behind prison bars, "voluntarily" confessing his "sins" on national television, raising questions about whether these statements were forced.

Al-Saadi Gaddafi was reportedly extradited on March 6, 2014 to Libya from Niger, to which he had escaped after the 2011 uprising ended his father's 42-year stranglehold on the country. Upon his arrival in Tripoli at al-Hadhba prison, unknown sources leaked photos to social media sites of al-Saadi kneeling in a blue prison uniform while someone shaved his hair and beard. The act of releasing such photos suggests an intention to humiliate al-Saadi and showcases a lack of full government control over the prisons. Al-Saadi is in al-Hadhba prison, which is formally under the control of the Justice Ministry, while he awaits charges for his alleged role in the 2011 government crackdown on the uprising.

Since Muammar Gaddafi's removal, successive interim governments have paid little attention to building accountable institutions, while militias with regional, tribal, religious and financial objectives have gained more control and operated with an impunity that defines the new fragmented and volatile country.

While myriads of militias have thrived, Libya's formal state institutions have foundered. Should Libya's core institutions, such as police, military and justice, collapse, the country would slide further into chaos. Key factors responsible for this dysfunctional justice sector include the volatile security environment, itself partly caused by the failure to prioritize justice from the start; the lack of government protection for judicial staff; the government's lack of effective control over detention facilities; continuing mass arbitrary detentions and torture committed mainly by militias; the passing of abusive laws; the lack of implementation of a transitional justice law and due process problems with ongoing trials.

Militias and criminals have harassed, intimidated, threatened and in some cases assassinated judges, prosecutors, witnesses, lawyers and judicial staff. The government can provide little or no protection for them. At least seven judges and prosecutors have been assassinated in post-conflict Libya. Since mid-2013, the rate of assassinations of members of the armed forces, police, judges and activists has increased dramatically.

As a result, judges and prosecutors have suspended the courts in major cities in the east, including Benghazi, Derna and in the south, in Sebha. The justice minister told Human Rights Watch during a meeting in March that the government was trying to transfer judges from Benghazi and Derna to Tripoli to offer them at least some kind of protection—he was powerless to protect them in their cities. Some former judges who have received death threats have opted to leave the country. Recently, one political activist told me his father, a respected judge in Benghazi, had just received his first death threat. He told me his father now dares not leave his home.

There is a real risk of a complete breakdown of law and order should the judicial system in key regions in Libya remain suspended.

The Justice Ministry says it holds 6,100 detainees in twenty-six prisons it administers across the country. In fact, it has only nominal control over most facilities, while militias and armed groups call the shots. According to the Justice Ministry, only about 600 of the detainees have been convicted and received prison sentences, mostly those accused of common crimes; the rest are either being held in pre-charge detention, have been charged but are awaiting trial or are under investigation by the general prosecutor.

Militias and government authorities have held some of those detained in relation to the 2011 uprising for three years without affording them access to a lawyer, presenting them to a judge or charging them with any crime. Detainees, family members, local organizations and the UN report widespread ill-treatment of detainees in facilities across Libya, which has resulted in deaths in custody. The Libyan authorities have failed to end this mass arbitrary detention by releasing all those not charged by a court within a reasonable time.

In December, Libya's legislative authority, the General National Congress, passed a law on transitional justice (Law 29/2013), replacing an older law on transitional justice and national reconciliation passed in 2012 by the National Transitional Council, Libya's interim governing body until July 2012 elections established the interim parliament. The new law is no more than ink on paper. Almost four months later, the parliament has failed to establish the fact-finding commission stipulated in the law. The government meanwhile failed to implement the provision of the transitional justice law calling on Defense, Interior and Justice Ministries to transfer all detainees into state custody and release those who will not be charged by March 2.

The Judicial Police, the main body responsible for the protection of judges and prosecutors (but is also the body in charge of running Justice Ministry detention facilities), is weak, lacks training and is ill-equipped.

Instead of reforming Gaddafi-era laws, successive interim authorities have also passed abusive new laws that violate human rights, including a controversial laws that (1) exclude from future government and public employment a large number of people who worked in public corporations and in the government under Gaddafi and (2) grant widespread immunity from prosecution for anti-Gaddafi fighters.

Violence has escalated since parliament's passing of a "political isolation" law in May 2013, encompassing the removal from office of members of the judiciary. Militias besieged the parliament and several ministries and forced members to pass the law under threat of force. Many judges feared for their positions due to the overbroad criteria for removing judges and prosecutors from active duty who had served under the Gaddafi government, as the law stipulates. One prominent judge from Benghazi told me instead of waiting to be "isolated," he would resign and work as a lawyer. While no statistics are yet available, judges and prosecutors fear that full implementation of the law would remove a large number of active judges, risking further instability in an already volatile justice system.

Selective justice in Libya's courts is also dangerous. As far as we have been able to determine, no member of a militia, and no one-time anti-Gaddafi fighter, is on trial or has been convicted and sentenced for crimes related to the 2011 conflict, including torture, rape and arbitrary detention. In fact, a law (NTC law 38/2012 on some special measures) passed by the National Transitional Council grants widespread immunity from prosecution for acts aimed at "promoting or protecting the 2011 revolution."

While few cases have gone to trial, Libyan military and civil courts have passed harsh sentences, including the death sentence, for crimes committed by Gaddafi loyalists during the 2011 conflict and for common crimes such as murder. Human Rights Watch documented at least twenty-eight death sentences—including twelve in absentia—by military and civil courts in Misrata, Benghazi and elsewhere since the end of the 2011 uprising. As far as we have been able to determine, formal state courts have not carried out any of these death sentences. Lawyers, family members and defendants have described to Human Rights Watch a lack of the most basic due process rights and fair trial standards, including violations of the right to access a lawyer before and during the proceedings and of the right to review the case file, along with the subjection of detainees to interrogations by non-state actors, and allegations of forced confessions.

The general prosecutor announced plans to open a trial of 38 former officials in the Gaddafi government on April 14, 2014, including another Gaddafi son, Saif al-Islam, who is being held in the mountain town of Zintan, and the former intelligence chief Abdullah Sanussi, who is at al-Hadhba prison in Tripoli. The prosecutor's office also announced that al-Saadi Gaddafi will be included in the same trial. Human Rights Watch visited several Gaddafi-era officials held in detention in Tripoli and Saif al-Islam Gaddafi in Zintan in January and found that Saif al-Islam and Abdullah Sanussi, both wanted by the International Criminal Court on charges of war crimes and crimes against humanity, had both been deprived of a most basic right—they had no lawyers during the entire pre-trial phase, which has already extended for years.

The Libyan government should take immediate steps to make the justice system functional. The government should work toward ending mass arbitrary detentions, release all detainees who are not yet charged with any crime, provide all defendants on trial with their due process rights, including the right to a lawyer and urgently build a strong and accountable Judicial Police—or risk a total collapse of the system.

Hanan Salah is the Libya researcher at Human Rights Watch. She writes numerous reports, op-eds and news releases and conducts local and international advocacy. Prior to joining Human Rights watch, she worked as a protection team leader for western Libya at the International Committee of the Red Cross.

Suggested citation: Hanan Salah, Libya's Justice Pandemonium, JURIST - Professional Commentary, Apr. 12, 2014, http://jurist.org/hotline/2014/04/hanan-salah-libyan-government.php.



This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org


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