December 12, 2009

I. Summary

 “I need to talk about it, I need to feel that my voice is being heard, not just mine but that of all the families of the disappeared.  For my family, every celebration, every holiday becomes a funeral because they are not with us.”
Mohamed Hamil Ferjany to Human Rights Watch, USA, August 2009
“I couldn’t have spoken to you in 2005 the way I can today.”
Libyan Lawyer interviewed by Human Rights Watch, Tripoli, April 2009

Over the past decade Libya dramatically transformed its international status from a pariah state under UN, EU and US sanctions to a country that, in 2009 alone, held the Presidency of the UN Security Council, the chair of the African Union and the Presidency of the UN General Assembly. But this transformation in Libya’s foreign policy has not galvanized an equivalent transformation of Libya’s human rights record which remains poor, despite some limited progress in recent years.      

This report examines recent human rights developments in Libya, identifies key areas of concern and highlights steps the Libyan government must take to meet its obligations under international human rights law. Libya’s reintegration into the international community means that its human rights record has and will come under increasing scrutiny as the absolute control the Libyan government customarily exercised over the flow of information out of Libya continues to erode. Human Rights Watch believes this is an opportunity for human rights reform that the Libyan authorities should pursue and other governments should promote in their relations with Libya.

This report updates Human Rights Watch’s 2006 report on Libya, Words to Deeds, and focuses on the areas where there has been some limited progress, such as freedom of expression, as well as  those that remain severely restricted, such as freedom of association. The report also addresses how the Internal Security Agency remains responsible for systematic violations of Libyan rights, including the detention of political prisoners, enforced disappearances and deaths in custody. This report does not examine the treatment of migrants, asylum seekers and refugees in Libya, most recently reviewed in Human Rights Watch’s 2009 report, Pushed Back, Pushed Down: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers.

Overall, the past five years have witnessed an improvement in the human rights situation, though far less than promised or required. There are less frequent reports of arbitrary arrests and enforced disappearances compared to the two previous decades. There has been greater tolerance of freedom of expression and some progress in addressing gross violations of the past, though this remains very unpredictable.  Limited steps toward increased tolerance of dissent indicate that at least some elements of the government recognize the need for reform. Two new private newspapers and the internet have created a new limited space for freedom of expression, and some unprecedented public demonstrations have been allowed to take place. The Justice Ministry has announced plans to reform the most repressive provisions of the penal code, though it has not yet made the proposed revisions public. The justice system at times has made independent decisions, ordering the government to pay compensation to people whose rights have been violated and, in some cases, the government has complied.

Yet, despite work to develop a new penal code, an essentially repressive legal framework remains in place, as does the ability of government security forces to act with impunity against dissent. Many trials, especially those before the State Security Court, still fail to meet international due process standards. Overall, unjustified limits on free expression and association remain the norm, including penal code provisions that criminalize "insulting public officials" or "opposing the ideology of the Revolution." Many relatives of prisoners killed in a 1996 incident at Abu Salim prison are still waiting to learn how their relatives died and to see those responsible punished.  The jurisdiction of courts, the duties of government agencies, respect for legal rights of prisoners and adherence to the country’s stated list of human rights often remain murky, erratic and contradictory.

The basis for this report is research conducted by Human Rights Watch during a ten-day visit to Libya in April 2009, the organization’s most recent trip to the country, as well as general research and monitoring of the state of human rights in Libya from outside the country. Human Rights Watch met with the Secretary of Public Security and the Secretary of Justice and visited Abu Salim prison, where it interviewed six prisoners. Human Rights Watch also met with members of the Tripoli Bar Association and the Journalists’ Syndicate, relatives of prisoners and a former political prisoner.

Freedom of expression remains severely restricted by the Libyan penal code. However, the past five years have witnessed a gradual opening of a new, still vulnerable, space for freedom of expression. Cracks in the wall that the government has set up against free expression are thin but evident. Oea and Quryna, two private newspapersestablished in August 2007, allow their journalists to write more critically about the government than was previously tolerated in the press, though this criticism remains in line with the political agenda of Saif al-Islam al-Gaddafi, the son of Mu’ammar al-Gaddafi. Libyan correspondents for websites based abroad that frequently publish criticism of the government and news of human rights violations are allowed to operate in Libya and have even managed to obtain press cards. This gradual opening of space has brought with it an increase in criticism of government policies in the media.  However, there has also been an increase in the number of prosecutions of journalists, although no journalist has been sentenced to prison so far. 

There is no freedom of association in Libya because the concept of an independent civil society goes directly against Gaddafi’s theory of governance by the masses. Law 71 still criminalizes political parties, and the penal code criminalizes the establishment of organizations that are “against the principles of the Libyan Jamahireya system.” Law 19, "On Associations," requires a political body to approve all nongovernmental organizations, does not allow appeals against negative decisions and provides for continuous governmental interference in the running of the organization. The government has refused to allow independent journalists' and lawyers' organizations. The law itself allows the government to revoke the authorization of an association at any time without needing to provide justification. There are a number of semi-official organizations that do charitable work, providing services and organizing seminars, but none that publicly take critical stances against the government.

Libya has no independent nongovernmental organizations. The only organizations that can do human rights work, the most sensitive area of all in Libya, derive their political standing from their personal affiliation with the regime.  The main organization that can publicly criticize human rights violations is the Gaddafi International Charity and Development Foundation (Gaddafi Foundation), chaired by Saif al-Islam al-Gaddafi.  A second organization, Waatasemu, is run by Dr. Aisha al-Gaddafi, Mu’ammar al-Gaddafi’s daughter, and has intervened in death penalty cases and women’s rights issues. The International Organization for Peace, Care and Relief (IOPCR), run by Khaled Hamedi, the son of a member of the Revolutionary Command Council, is the only organization able to access migrant detention centers.

Attempting to set up a human rights organization is a risky venture with the potential for harassment by Libyan security and also criminal prosecution. In 2008, for example, a group of lawyers and journalists tried to set up two organizations dealing with human rights and democracy. The authorities initially approved their request, but the Internal Security Agency, the section of the General People’s Committee (ministry) for Public Security in charge of controlling domestic political activity, subsequently blocked the process. The group ultimately abandoned the initiative after the abduction and assault of one of the lawyers (who was a founding member of both organizations) for one day. The government says it is investigating the abduction. 

The Internal Security Agency retains full control over two prisons in Libya, Abu Salim and Ain Zara, which are notorious for the arbitrary detention of political prisoners. According to the Secretary for Justice, there currently are approximately 500 prisoners who have served their sentence or who have been acquitted by Libyan courts, but remain imprisoned under orders of the Internal Security Agency.  The Agency has refused to implement the decisions of the Libyan judiciary to release detainees, despite calls from the Libyan secretary of justice for their release. A number of prisoners remain disappeared, including high-profile Libyan opposition members who were last heard of in Abu Salim prison. The Internal Security Agency also continues to detain individuals who were sentenced by the People’s Court, notorious for trying individuals for political crimes without access to defense lawyers, and since abolished in 2005. The lack of fairness in the trials of such detainees means they should be released or re-tried before an ordinary court.

In late June 1996 an estimated 1200 prisoners were killed in Tripoli’s Abu Salim prison. For years the authorities denied this had taken place. Until late 2008, the vast majority of the families of the prisoners who were killed  had received no information about them. Some families of detainees killed at the prison sued the government in court, seeking to learn what happened to their relatives.

In June 2008, the North Benghazi court ordered the General People’s Committee (the cabinet) , the General People’s Committee (ministry) for Justice and the General People’s Committee (ministry) for Public Security to inform the relatives of those who had died. The Libyan authorities told Human Rights Watch in 2004 that an investigation into the incident was under way; however, in April 2009 the Secretary of Justice confirmed to Human Rights Watch that no such investigation took place. In September 2009, the General People’s Committee for Defense established an investigation panel composed of seven investigative judges and headed by a former military judge to investigate the Abu Salim killings 13 years after they occurred.

Following the decision of the North Benghazi court, starting in December 2008 Libyan authorities began issuing death certificates to the families, without acknowledging that they were related to the Abu Salim killings. These documents do not include the correct date, place or any cause of death. The  authorities have offered compensation of 200,000  Libyan Dinars ($162,300) in exchange for assurances that family members will not pursue further legal claims in Libyan or international courts. Calling for truth, accountability and appropriate compensation, several hundred of the families formed a committee to demand the facts about what occurred on the day of the prison killings and the prosecution of those responsible. And  most of the families in Benghazi have refused to accept compensation on those terms, insisting that they want to know the truth of what happened and to have those responsible prosecuted. Mohamed Hamil Ferjany, a spokesperson for the families now based in the US, told Human Rights Watch that for him, ”the money is irrelevant.  My family spent years suffering, not knowing where my brothers were, only to be given a piece of paper 15 years later saying they are dead and nothing more. We want justice.”

Over the past months, some of the families insisting on accountability from the government have been demonstrating primarily in Benghazi, but also in Al Bayda and Derna.  The government has, for the most part, allowed the families to demonstrate, and the Libyan press has covered their activities and demands. However, the families also have  faced harassment from security forces and even, at times, arrest. 

The 2005 abolition of the People’s Court was greeted by human rights organizations as a welcome step on the path of reform. However, in August 2007 a new State Security Court was established bearing a worrying resemblance to the People’s Court which often issued heavy sentences after unfair trials. Human Rights Watch has spoken to a number of defendants brought before this court who were not able to meet with their defense counsel ahead of the court session. Moreover, the court’s decisions are not available to the public or even to the families of those sentenced. It is not clear whether there is a court that can review decisions by the State Security Court nor whether the right to appeal is granted to those it does sentence.

Despite statements by senior officials, including Libyan Leader Mu’ammar al-Gaddafi, that the country is working toward the abolition of the death penalty and that it is rarely applied, Libya continues to sentence people to death and to carry out death sentences.  A system based on Islamic law and custom allows for a pardon only when the family of a murder victim is willing to grant one in exchange for financial compensation or so-called “blood money.” 

The steps Libya has taken to address some of its human rights problems do not go far enough in addressing the systemic and legal infrastructure that deprives Libyans of their basic human rights. Libya must ensure that it complies with all of its obligations under international human rights law and should immediately implement a number of reforms in policy, law and practice. The General People’s Congress (the legislative assembly) should repeal all provisions of the penal code and other laws such as Law 71 that violate freedom of expression and association, and that any new draft laws are fully in line with international human rights law. The Internal Security Agency should immediately release all prisoners detained for peacefully exercising their right to free expression or association and compensate them for their detention. In addition, Internal Security agents should immediately release the approximately 200 prisoners they are continuing to detain in Abu Salim prison despite the fact that Libyan courts have acquitted them and ordered their release or that they have completed their sentences. 

Human Rights Watch further urges the People’s Leadership Committees to immediately inform the families of prisoners who died in the 1996 Abu Salim prison massacre of the circumstances of the death of their relatives and give them the remains of their relatives to bury. The authorities must carry out a full and effective investigation and make public the findings. This should be immediately followed by the prosecution of those responsible for the summary execution of those prisoners. Under human rights law, the Libyan government is under an obligation to make reparation and must not pressure the families into accepting compensation instead of pursuing accountability. The families of prisoners who were killed in Abu Salim have the right to demonstrate peacefully and make demands to the Libyan authorities without intimidation and harassment from the security forces. In addition, in the context of Libya’s increasing political and economic integration in the world community, Human Rights Watch urges all organizations and governments engaging with Libya to ensure that the promotion of human rights in Libya forms part of their relationship.