December 12, 2009

VI. Freedom of Assembly and Association

“The state has swallowed up civil society and will not give space to human rights defenders.” 
—Libyan lawyer, April 22, 2009

There is virtually no freedom of assembly or association in Libya because the concept of an independent civil society goes directly against Gaddafi’s theory of government by the masses without intermediary.[68]  Law 71 bans any group activity opposing the ideology of the 1969 revolution and imposes the death penalty on those who form, join or support such groups.

Freedom of Assembly

Freedom of assembly is severely restricted in Libya. On June 29, the General People’s Committee issued a decision (312/2009) requiring 30-day advance approval from a newly established government committee to hold any meeting or event, and requiring the meeting organizers to provide a list of all participants and the issues to be discussed. Under international law, these requirements do not meet the standard of a necessary or proportionate limitation to freedom of assembly and association, for example as in Articles 10 and 11 of the African Charter.

 Attempting to organize a demonstration remains illegal. In February 2007 Libyan security agents arrested 14 organizers of a planned peaceful demonstration intended to commemorate the anniversary of a violent crackdown on demonstrators in Benghazi. Security forces detained them incommunicado in Ain Zara and al-Al-Jdaida prisons until June 24, 2007 when they came before a court to face charges of "attempting to overthrow the political system" and "communication with enemy powers.”[69] Increasingly, however, some demonstrations are taking place despite these restrictions. In Benghazi, families of a group of prisoners killed in Abu Salim prison have held a number of public demonstrations. Although security officials continue to harass and intimidate those taking part in the demonstrations, the fact that they have taken place at all and that they have been covered in the media is unprecedented. (see Section IX Unprecedented Activism)

No Independent Nongovernmental Organizations

Libya has no independent nongovernmental organizations. The government has refused to allow independent journalists' and lawyers' organizations. Law 19, "On Associations," requires a political body to approve all such organizations, does not allow appeals against negative decisions and allows for continuous governmental interference in the running of the organization. If the organization plans to work country-wide, its application goes to the

secretariat of the General People’s Congress.[70] If the proposed work is limited to a governorate, the application goes to the People’s Congress of that governorate. If the

work is international, it goes to the whole General People’s Committee. 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. The only organizations that do human rights work, the most sensitive area of all in Libya, are only able to do so because they derive their political standing from their personal affiliation with the regime. In effect, they perform the role of human rights commissions or ombudsmen that are part of the government but there are clear limits to what issues they are willing to take up and how much pressure they are willing to exert at any given time.

The main organization able to do human rights work in Libya is the Human Rights Society of the Gaddafi International Charity and Development Foundation (GDF), chaired by Saif al-Islam al-Gaddafi, a son of Colonel Mu’ammar al-Gaddafi. It has intervened in a number of cases to secure the release of political prisoners or facilitate the return of Libyan nationals.[71]  It has at times taken public stances against the authorities, such as its criticism of the General Prosecutor over the arrest of attorney Gum’a Atiga, former Secretary of the GDF’s Human Rights Society.  The GDF “strongly condemn[ed] this arbitrary action and request[ed] the Secretariat of the General People's Congress to hold accountable those who caused the arrest of the person concerned and to proceed to his release as soon as possible.”[72] On many other issues, though, it treads very cautiously and prefers to try to address cases and concerns in a non-public manner. With Saif al-Islam’s appointment in October 2009 as General Coordinator of the People’s Leadership Committees, the governmental nature of the Gaddafi Foundation is solidified.

Another organization that does some work on human rights is Waatasemu. Chaired by Aisha al-Gaddafi, a lawyer and the daughter of Colonel Mu’ammar al-Gaddafi, Waatasemu has intervened in death penalty cases, successfully arranging for the payment of blood money to reduce the sentence to life imprisonment.[73] (see Section XI below) 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.[74] It was only on the basis of a 2008 agreement with IOPCR that the office of the United Nations High Commissioner for Refugees (UNHCR) was able to gain access to Misrata to interview asylum seekers. [75]

All professional syndicates and trade unions in Libya are state-controlled. However, within the Bar Association and the Journalists’ Syndicate there are a number of individuals who express independent views and take positions critical of the government but try to work within the existing structures. However, opportunities remain limited. As one lawyer told Human Rights Watch “the state regards us with suspicion at the Tripoli Bar Association because we are the biggest.”[76] Despite this, the lawyers at the Tripoli Bar Association have been trying to take an increasingly active role in monitoring and upholding human rights. The lawyers told Human Rights Watch that they recently established a fact-finding committee which had requested access to Ain Zara prison in April 2009 but the Internal Security Agency had refused. They remain hopeful of eventually being granted access since a human rights committee affiliated with the Bar Association had visited a prison in 1998.[77]

On April 22, 2008 the Tripoli Bar Association held a seminar to discuss the new draft penal code. The lawyers rejected the draft calling for its revision and for a more inclusive consultation process.[78] One lawyer told Human Rights Watch “everything you wrote in your last report [Words to Deeds 2006] about the repressive legal framework still applies.”[79]

Freedom of Association Criminalized

The new draft penal code retains provisions that violate freedom of association. Article 166 criminalizes the establishment of any organization that is “against the Jamahiriya system” or “threatening its popular authority”, without further defining what that would include. Article 167 criminalizes all those who promote “changing the Jamahiriya system”, although it appears to be limited to those who do so “using violence or other illegal instruments.” These provisions are overly broad, not specifically defining the crime to allow for legal certainty, and they also restrict the rights of people to form associations or advocate for their views.  As it stands, these provisions would encompass organizations or groups which undertake criticism of public policies by the government, as well as commentary on the human rights situation. They could even criminalize research institutes that produce findings that are critical of governmental policy.   Similarly, Article 169 seeks to limit the freedom of Libyans to join or establish international organizations unless they receive permission from the government, without establishing the criteria for such permission. Under international law, while a government may require notification of the establishment of an association, requiring governmental permission to establish or join an association should be on the basis of criteria that are clear, objective and appealable.   

Attempting to set up a human rights organization remains very risky, as the case of Shukri Sahil shows.In March 2004, Libyan businessman Shukri Sahil, together with some friends, decided to try to establish a human rights organization in Libya and started informal consultations about this with friends and contacts in Libya. His friends informed him that he would need to gain authorization from the Office of External Security, so he requested a meeting with that office in May 2004. Shukri Sahil told Human Rights Watch that the security officer he spoke to reacted with great anger when he told him that he wanted to set up an organization, accusing him of having “political ambitions” and being a “very dangerous person.” Shukri Sahil believes that all the subsequent harassment he suffered from state security were related to this initial incident.[80]

Security forces arrested Shukri Sahil on 20 May 2004 and detained him in solitary confinement in the External Security prison for 13 months. He told Human Rights Watch that security officers tortured him every day for two weeks and every two-to-three days for the following three weeks. They beat him about the body, and especially on the soles of his feet (falaka) and brought a dog to attack him.  In March 2005 he went before a judge for the first time.  The judge charged him with violating Law 71, which bans any group activity based on a political ideology opposed to the principles of the 1969 al-Fateh Revolution. In June 2005, the authorities transferred him to Abu Salim prison, where they kept him in solitary confinement for two months.[81] His trial before the State Security Court is described below in Section X.

The 2008 Attempt to Establish a Human Rights Organization

The most significant attempt to set up an independent human rights organization came in February 2008, when a group of lawyers, journalists and other Libyan professionals established two nongovernmental organizations called the Centre for Democracy and the Association for Justice and Human Rights. Their goals included spreading democratic values and making recommendations for legal reform to promote democratic activities and human rights.[82]

On March 17, 2008, the 90 founding members of the Association for Justice and Human Rights sent their application for registration to the General People’s Committee for Social Affairs. The Centre for Democracy sent its application to the General People’s Committee for Social Affairs on May 4, 2008, and on May 25 the NGO Directorate at the General People’s Committee for Social Affairs sent them a letter confirming approval of the application.[83]   On May 4 Libya Al Youm reported that the NGO Directorate had sent the list of members of both organizations to the Internal Security Agency[84] and on May 19 the founding members announced that the Agency had stipulated the removal of 12 members of the Association for Justice from the list before allowing the organization to be established.  The 12 members included former political prisoners, including Gum’a Atiga, a lawyer and former secretary of the Human Rights Society at the Gaddafi Foundation. In fact, Law 19 does not prescribe a role for Internal Security Agency approval in the establishment of organizations, stating in Article Six that “the establishment of an association on a national level occurs by decision of the General People’s Committee.”  The head of Internal Security, Col. Al-Tohamy Khaled, denied that his agency had intervened, telling Human Rights Watch that “the Internal Security Agency does not have the right to intervene in the law and request certain members to be removed but it does have a duty to investigate the background of each individual and to check if they have a record.”[85]

On June 10, the NGO Directorate at the General People’s Committee for Social Affairs revoked its initial authorization and officially refused the applications for registration of the Centre for Democracy and the Association for Justice and Human Rights, a move lawyers attributed to the intervention of the Internal Security Agency.[86]

Lawyer Dhaw al-Mansuri, President of the Centre for Democracy, said he was stopped on June 30, 2008 at around 8 pm, in the street near his office by men in plainclothes, forced into a car, blindfolded, handcuffed and driven out of the city to an unknown location.  He was beaten and told to abandon the attempt to set up the Centre for Democracy. On July 6, 2008 the Tripoli Bar Association held an emergency meeting to discuss the kidnapping.[87] The Bar Association sent a public letter to the Secretary of Justice and to Saif al-Islam al-Gaddafi, as chairman of the Gaddafi Foundation, protesting this incident and calling for an investigation. The head of Internal Security, Al-Tohamy Khaled, told Human Rights Watch that an investigation into the incident was still underway. However, he said that he didn’t believe the incident had occurred, saying “who is this Dhaw that the state would care about? I do not think that security would do that.” [88] 

Shortly after the incident, the group abandoned their attempt to establish the two new organizations. As one lawyer put it, “This door, which was opened after Saif al-Islam’s speech in August 2006, was now closed.”[89]

Libya’s International Obligations

As party to the African Charter on Human and People’s Rights, Libya is under an obligation to provide the right to free association, set out in Article 10. This is reflected in Article 22 of the ICCPR which further stipulates that any limitation must be “necessary in a democratic society.” “Necessary” restrictions must also be proportionate: that is, carefully balanced against the specific reason for the restriction being put in place.[90]The UN Human Rights Committee has repeatedly highlighted the importance of proportionality.[91]In applying a limitation, a government should use no more restrictive means than is absolutely required. The African Commission has found “freedom of association is enunciated as an individual right and is first and foremost a duty for the State to abstain from interfering with the free formation of associations.”[92]

These international obligations are also reflected in Article 6 of the Great Green Charter for Human Rights which says Libyans are free to form “associations, trade unions and leagues in order to defend their professional interests,” although it does not address associations that deal with social or political themes. According to Article 9 of the Law on Enhancing Freedom, “Citizens are free to establish and join trade unions, professional and social federations and leagues and charitable associations in order to protect their interests or achieve the legitimate objectives for which those institutions have been established.”

 

[68] For more on this see Dirk Vanderwalle, A History of Modern Libya, (Cambridge, UK: Cambridge University Press 2006), Chapter 5.

[69] For a full discussion of their trial see Section X - The State Security Court

[70] The country’s top legislative body, the General People’s Congress presides over all the basic people’s congresses and the General People’s Committees (ministries).

[71]  “The Foundation Succeeds in Obtaining Approval to Facilitate the Return of Eighteen Libyan Citizens Residing Abroad,” Gaddafi International Charity and Development Foundation press release, Nov. 16, 2008, http://www.gdf.org.ly/index.php?lang=en&CAT_NO=2&Page=105&DATA_NO=419 (accessed Sept. 30, 2009).

[72] “The Foundation Succeeds in Obtaining Approval to Facilitate the Return of Eighteen Libyan Citizens Residing Abroad,” Gaddafi International Charity and Development Foundation press release, Nov. 16, 2008, http://www.gdf.org.ly/index.php?lang=en&CAT_NO=2&Page=105&DATA_NO=419 (accessed Sept. 30, 2009).

[73]  See Section XI below. For an overview of Waatasemu’s activities, see their website http://www.waatasemu.org/charity/ (Arabic) (accessed Sept. 30, 2009).

[74] For more on the violations of rights of migrants in Libya see Human Rights Watch, Libya/Italy: Pushed Back Pushed Around, (New York, Human Rights Watch: September 21, 2009) http://www.hrw.org/en/reports/2009/09/21/pushed-back-pushed-around-0 (accessed September 29, 2009).

[75]Under the agreement, the organizations will support the Libyan authorities in "designing and implementing

comprehensive and protection-sensitive asylum management strategies with full respect for international and regional

refugee and human rights principles." See "UNHCR signs agreement aimed at ensuring refugee protection in Libya," UNHCR,

news stories, July 4, 2008, http://www.unhcr.org/486e48534.html (accessed July 30, 2009).

[76] Human Rights Watch group interview with lawyers, Tripoli Bar Association, April 22, 2009.

[77] Human Rights Watch group interview with lawyers, Tripoli Bar Association, April 22, 2009.

[78] “Discussion about the new penal code begins tonight – rights defenders reveal 21 articles provide for death sentence,” Libya Al Youm, April 22, 2008, http://www.libya-alyoum.com/look/article.tpl?IdLanguage=17&IdPublication=1&NrArticle=14853&NrIssue=1&NrSection=3 (accessed, Sept. 22, 2009).

[79] Human Rights Watch group interview with lawyers, Tripoli Bar Association, April 22, 2009.

[80] Human Rights Watch phone interview with Shukri Sahil, March 17, 2009.

[81] Human Rights Watch phone interview with Shukri Sahil, March 17, 2009.

[82]  Human Rights Watch group interview with lawyers, Tripoli Bar Association, April 22, 2009 and Statute of the Centre for Democracy reproduced on Libya al Youm.

[83]  Letter confirming application approval, General People’s Committee for Social Affairs, reproduced in “Rights Activist Dhaw al-Mansuri announces the establishment of the Centre for Democracy and Association for Justice,” Libya Al Youm, June 5, 2008, http://www.libya-alyoum.com/look/article.tpl?IdLanguage=17&IdPublication=1&NrArticle=15763&NrIssue=1&NrSection=3 (accessed Sept. 30, 2009).

[84] “Founders of Centre for Democracy request registration and Nongovernmental Organizations Authority sends membership list to Internal Security,” Libya Al Youm, May 4, 2008.

[85] Human Rights Watch interview with Col. Al-Tohamy Khaled, head of Internal Security, Tripoli, April 25, 2009.

[86] “In an Unexpected Move the Government issues a Decision to Cancel the Centre for Democracy and Association for Justice,” Libya Al Youm, June 11, 2008,http://www.libya-alyoum.com/look/article.tpl?IdLanguage=17&IdPublication=1&NrArticle=15892&NrIssue=1&NrSection=3, (accessed August 10, 2009).

[87] Libya Al Youm, “His kidnappers threatened him over the Centre for Democracy – Tripoli Lawyers strongly protest the attack and call for an investigation,” July 2, 2008, http://www.libya-alyoum.com/look/article.tpl?IdLanguage=17&IdPublication=1&NrArticle=16323&NrIssue=1&NrSection=3  (August 10, 2009).

[88] Human Rights Watch interview with Col. Al-Tohamy Khaled, head of Internal Security, Tripoli, April 25, 2009.

[89] Human Rights Watch group interview with lawyers, Tripoli Bar Association, April 22, 2009. For more on Saif al-Islam’s speech see IV. Background.

[90]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rein: N.P. Engel, 1993), pp. 386-387.

[91]See, for example, Vladimir Petrovich Laptesevich v. Belarus, Communication 780/1997 of the Human Rights Committee. See also Richard Fries, “The Legal Environment of Civil Society,” The Global Civil Society Yearbook 2003, Centre for the Study of Global Governance, London School of Economics, 2003, chapter 9.

[92] Communication 101/93, Civil Liberties Organization in respect of the Nigerian Bar  Association v. Nigeria, Eighth Activity Report 1994–1995, Annex VI; Documents of the African Commission, 394.