Security Needs Working Courts, Legal Reform
Human rights should not take a back seat to security in post-Gaddafi Libya. Independent courts and the rule of law will help ensure stability in a country emerging from four decades of dictatorship and eight months of war.
(Cairo) – Libya’s interim government and its international supporters should make it an urgent priority to build a functioning justice system and begin legal reform that protects human rights after Muammar Gaddafi, Human Rights Watch said today, in releasing its World Report 2012.
Efforts to secure weapons, demobilize militias, and reform the security sector are critically important, but so too is getting the courts running so they can handle cases from before, during, and after the conflict, Human Rights Watch said. This includes investigating violations by anti-Gaddafi forces and prosecuting or releasing the roughly 8,000 detainees currently held without judicial review.
“Human rights should not take a back seat to security in post-Gaddafi Libya,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Independent courts and the rule of law will help ensure stability in a country emerging from four decades of dictatorship and eight months of war.”
In its 676-page World Report 2012, Human Rights Watch assessed progress on human rights during the past year in more than 90 countries, including popular uprisings in the Arab world that few would have imagined. Given the violent forces resisting the “Arab Spring,” the international community has an important role to play in assisting the birth of rights-respecting democracies in the region, Human Rights Watch said in the report.
In Libya, foreign governments should support the justice system by condemning abusive practices of the new authorities and pressuring the transitional government to implement critically needed reform, Human Rights Watch said.
“Libya’s friends should help it do more than stabilize security and hold prompt elections,” Whitson said. “They should help it become a democratic and law-abiding state.”
Libya’s estimated 8,000 detainees are in roughly 60 detention facilities, the majority run by local militias outside state control. The government should redouble its efforts to bring these detainees under its authority, and give them prompt judicial reviews, Human Rights Watch said. Detainees ordered to be released by courts should be freed immediately.
The country should also urgently reform its penal code, media laws, and associations law, which restrict free expression, association, and assembly, Human Rights Watch said.
“The way to protect Libyans from future tyranny is with new laws that safeguard human rights and independent judges to uphold those rights,” Whitson said. “Libya has a historic opportunity to bring these laws up to international standards.”
Libya’s interim government is planning elections for a constituent assembly in June. That assembly will form a new transitional government and draft a new constitution and electoral law before general elections.
Free and fair elections in Libya will require laws that protect the rights of Libyans to criticize their leaders and to associate and assemble as they see fit, without fear of prosecution, Human Rights Watch said. Guaranteeing the independence of civil society and the active participation of women will be critical for a transition to democracy.
“Women played a key role in the national uprising and they should play a central role in determining Libya’s future,” Whitson said. “This means holding positions of influence and power.”
To protect women’s rights, the interim government should withdraw all remaining reservations to the international Convention on the Elimination of All Forms of Discrimination Against Women, and reform personal status laws that discriminate against women, including laws on inheritance, marriage, divorce, and custody of children, Human Rights Watch said. The government should adopt laws that protect women and girls from gender-based violence and ensure access to justice for women and girls who have been subjected to violence, including sexual violence. Violence against women is a human rights violation, and a barrier to women’s full participation in public life, Human Rights Watch said.
The report released today covers the most dramatic year in Libya’s recent history, including a popular uprising and government crackdown leading to armed revolt, foreign military intervention, and the death of Gaddafi.
Human rights violations were rife throughout the year, and Libya will take many years, if not generations, to recover, Human Rights Watch said.
When anti-government demonstrations began in February, the Gaddafi government responded with excessive force, at times opening fire on peaceful protesters. Security forces arrested thousands of people and never provided information about their locations or the charges they faced. Torture was common.
Today, many hundreds of people – both pro- and anti-Gaddafi – remain missing from the conflict. At least 20,000 people remain missing going back to 1969, according to Libya’s commission for missing persons.
During the fighting, government forces repeatedly launched indiscriminate attacks in areas where civilians lived, including with Grad rockets, especially in the coastal city of Misrata and the Nafusa Mountains. Misrata suffered a two-month siege with near daily attacks that killed scores of civilians and temporarily blocked humanitarian aid.
Government forces placed thousands, perhaps tens of thousands, of antipersonnel and anti-vehicle landmines in civilian areas around the country, and fired cluster munitions in Misrata. Human Rights Watch documented five types of landmines in six locations, which will probably endanger civilians for many years.
Human Rights Watch documented 15 cases of apparent gang rape and sexual assault of men and women by Gaddafi forces during the conflict, including of detainees in custody. The extent of sexual violence during the conflict remains unknown, due in part to the stigma surrounding rape in Libya and the dangers that survivors may face when they speak of such crimes.
During the conflict, and especially just before the fall of Tripoli in August, Gaddafi forces executed prisoners in their custody. At a warehouse in Tripoli, for example, members of the Khamis Brigade, run by Gaddafi’s son Khamis, appear to have executed and then set on fire at least 45 detainees. In the town of al-Khoms, in June, 18 detainees suffocated in the shipping containers where they were being held.
Anti-Gaddafi forces also committed human rights and humanitarian law violations during the conflict, though they also pledged not to use landmines. In October, militias from Misrata appear to have executed 53 Gaddafi supporters in Sirte.
Evidence suggests that rebel forces also executed Muammar Gaddafi and his son Muatassim after their capture in Sirte on October 20. The interim government has formed a commission to look at the circumstances of their deaths, but the members, terms of reference, and deadlines of the commission remain unknown.
Anti-Gaddafi fighters from Misrata have threatened, attacked, and arrested people from the nearby town of Tawergha, including some killings and deaths in detention. The roughly 30,000 residents of Tawergha have all fled and have been prevented from returning. Many people from Misrata accuse Tawerghans of having committed atrocities in Misrata together with Gaddafi forces.
“Investigating the crimes by anti-Gaddafi fighters and punishing those responsible is critically important so no one feels they are above the law,” Whitson said. “The cleansing of Tawergha deserves special attention to make clear that, regardless of individual crimes, collective punishment won’t be tolerated.”
Throughout the year, migrant workers from sub-Saharan Africa and dark-skinned Libyans were particularly vulnerable to abuse by anti-Gaddafi forces, suffering arrests, attacks, and some killings that forced thousands to flee over land and by sea. Many Libyans accused migrants without evidence of having fought as mercenaries for Gaddafi forces.
Since Gaddafi’s fall, the interim authorities have struggled to bring the hundreds of armed groups under state control. Building a national police and armed forces remains a critical goal, Human Rights Watch said.
In some detention facilities, Human Rights Watch documented torture and deaths in custody, although some facilities have recently improved. Hundreds of detainees have been released, but thousands remain in custody without a legal review or access to a lawyer.
Although the authorities have run Benghazi since March 2011, and western Libya since late August, the country’s justice system is not functioning adequately. As of December, very few judges appeared to be working, and few detainees in criminal cases had been brought before a judge.
The most prominent of these detainees is Saif al-Islam Gaddafi, who is being held without access to a lawyer, in the town of Zintan. He is under investigation in Libya for wartime abuses and pre-war corruption and is wanted by the International Criminal Court (ICC) for crimes against humanity.
Libya has said it will try Gaddafi domestically. To do so for crimes in the ICC warrant, Libya must challenge the ICC's jurisdiction and show that Libya is able and willing to give Gaddafi a fair trial. The ICCjudges would then decide whether the Libyan proceedings make it unnecessary for the ICC to hear the case.
In April, the African Court of Human and Peoples’ Rights issued its first substantive ruling, ordering the then Gaddafi-led government to end its violations of the right to life and security of persons. The transitional government in Tripoli has yet to settle this case.
Human Rights Watch also addressed civilian deaths caused by NATO during its air campaign. The deaths are far lower than the Gaddafi government, and some governments critical of NATO, have claimed, but higher than NATO has acknowledged, Human Rights Watch found.
Human Rights Watch investigated four of the larger sites in which 54 civilians apparently died. These civilians may not have died in unlawful attacks, but NATO should investigate the cases and public justify the strikes, Human Rights Watch said.