The EU has declared a “new era” in its relations with Libya. Counter-terrorism, energy, and migration are among the main areas of concern to Brussels.
Human Rights Watch welcomes improved EU-Libya ties, but not at the expense of human rights. The “new era” should include a framework to address Libya’s dismal human rights record and to encourage desperately needed reform. In particular, EU–Libya agreements should establish clear human rights benchmarks to promote Libya’s compliance with international standards of free expression, free association, judicial independence, and other human rights norms.
This memorandum presents the most pressing human rights concerns in Libya today, as well as recommendations for human rights benchmarks the EU should establish.
Recent Background
The EU signed a memorandum of understanding with Libya on July 23, 2007, that dealt primarily with issues around the release of the five Bulgarian nurses and Palestinian doctor who had been unlawfully jailed since 1999 and convicted of deliberately infecting 426 children with HIV.1 The MoU mentions five areas that Libya wanted included in future agreements with the EU: agricultural trade, assistance with archaeological restoration, academic scholarships, visa facilitation, and technical support for Libyan border control of illegal immigration on the EU’s behalf.
On October 15, 2007, the EU General Affairs and External Relations Council decided to proceed with negotiations with Libya on a framework agreement. The objective of the agreement, the Council said, is to “set EU-Libya relations into an appropriate, coherent long-term framework that will take into account the interests of Libya and of the EU and its Member States.”2 The Council said the agreement should include “areas of mutual interest such as human rights, migration, among others.”
On December 8-9, 2007, Libyan leader Mu`ammar al-Qadhafi attended an EU-Africa summit in Lisbon. On December 10, he arrived in Paris, his first visit to France in 34 years. Following that, he visited Spain.
On January 1, 2008, Libya became a nonpermanent member of the UN Security Council, and it assumed the rotating presidency for the first month.
The EU’s engagement policy is an important lever to improve Libya’s human rights record, which includes the use of torture, unfair trials, and sweeping restrictions on freedom of expression and association. Building on the mention of human rights in the October 15 Council conclusions, a framework EU-Libya agreement should include concrete human rights benchmarks, such as those listed at the end of this paper.
It is imperative that the EU not be satisfied merely with the foreign healthcare workers’ release, which ended a long miscarriage of justice, but also highlighted the Libyan government’s continuing human rights abuses. Scores of Libyans and others remain in prisons after torture and unfair trials, their cases largely unknown to the outside world. The government continues to imprison people who peacefully express alternative political views, and some of them have “disappeared.” The mistreatment of women and girls, and abuse against foreigners, including the refoulement of refugees, also demand the EU’s attention.
This document describes some of the ongoing human rights violations in Libya that the EU should not ignore.
Violations of civil and political rights
Despite some improvements in recent years, in Libya torture remains a deep concern. Torture is prohibited under Libyan law, its commission is a criminal offence,3 and the government has repeatedly claimed that it investigates and prosecutes cases in which torture is alleged. Nevertheless, fifteen out of 32 prisoners interviewed by Human Rights Watch in 2005 reported having been tortured during interrogations by Libyan security personnel in recent years.4 Prisoners said that interrogators subjected them to electric shocks, hung them from walls, and beat them with clubs and wooden sticks.5 Confessions extracted through torture are admitted as evidence in court.
During interviews in Tripoli’s Jdeida prison in May 2005, four of the six foreign healthcare workers recently released told Human Rights Watch that they had confessed only after enduring torture, including sexual assault. On August 10, in an interview on al-Jazeera, Saif al-Islam al-Qadhafi, the Libyan leader Mu’ammar al-Qadhafi’s influential son, affirmed that the healthcare workers had been tortured. The torture of these workers is the only case in which the authorities are known to have conducted a criminal investigation into torture, but the ten Libyan security officials charged with torturing the workers were acquitted in June 2005.
The Libyan justice system continues to violate due process rights, including by admitting coerced confessions as evidence and by subjecting persons to prolonged periods of pre-trial detention. In January 2005, the government abolished the People’s Court, a body that had tried most political cases without adequate due process guarantees. The cases before the court at the time of closure were transferred to the regular courts, but many of the people already imprisoned by the People’s Court remain in prison and their cases have apparently not been reviewed. In October 2007, the UN Human Rights Committee expressed concern that the difference between the former People’s Court and the currently functioning State Security Court is “unclear.”6
Libya’s media, including major newspapers and magazines, are controlled by government authorities or by the Revolutionary Committees Movement, a powerful organization that promotes the values of the al-Fateh Revolution that brought al-Qadhafi to power in 1969. After Libya’s legislative body, the General People’s Congress, created a committee to examine the state-controlled media in April 2007, journalists and writers inside Libya issued a bold statement that described the media as “dependent solely on propaganda and positive government messages.” The statement called on the committee to promote private media and a free press, but to date the government has provided no information about the committee’s work.
Although a company reportedly owned by Seif al-Qadhafi opened two private newspapers and a private television station in August, the only truly free media are satellite television programs and the Internet. While both have proliferated in recent years, the government occasionally blocks websites. In 2005 the Internet writer `Abd al-Raziq al-Mansuri was sentenced to one-and-a-half years in prison, ostensibly for illegal possession of a weapon, although the circumstances of his arrest, detention and conviction indicate that the actual motivation was his critical writings.
Individuals and groups are not free to express views critical of the government, the unique Jamahiriya political system, or Mu`ammar al-Qadhafi. Those who do express criticism or try to organize opposition political groups face arbitrary detention and long prison terms after unfair trials. A pervasive security apparatus monitors the population to a high degree.
The Libyan government strictly curtails freedom of association, particularly if based on political activity. Most notably, Law 71 bans any group activity based on a political ideology opposed to the principles of the al-Fateh Revolution.
Fathi al-Jahmi is Libya’s most well-known political prisoner. Internal security forces first arrested him in October 2002, after he publicly criticized Mu`ammar al-Qadhafi and called for free elections, a free press, and the release of political prisoners. A court sentenced him to five years in prison, but an appeals court ordered his release in March 2004.
That same month, after al-Jahmi again criticized al-Qadhafi and called for Libya’s democratization, security agents promptly re-arrested him. His wife and eldest son were also arrested and detained without charge for more than six months, ostensibly “for their safety.”
Al-Jahmi remains in detention today. His trial began in late 2005, but has since stopped with the government providing no further information or announcing the charges against him. According to his court appointed lawyer, al-Jahmi may face the death penalty for supporting or calling for the establishment of “any grouping, organization or association proscribed by law.” According to al-Jahmi’s family, the government has denied them visits since August 2006. His brother told Human Rights Watch: “We don’t know at this moment if he’s dead or alive.”
In another troubling case, on February 16 and 17, 2007, state security arrested 13 men as they planned a peaceful demonstration to commemorate the first anniversary of an attack by Libyan police on a demonstration in Benghazi, in which 12 people were killed and many injured.7 A fourteenth man, a brother of a man from the original group, was arrested one hour later, after he gave an interview to a London-based Libyan website, Libya al-Mostakbal, about his brother’s arrest.
The authorities are holding most of the men at Jdeida prison or ‘Ayn Zara prison in Tripoli, but Jum`a Boufayed (brother of Dr. Idris Boufayed, who was arrested after giving the interview) is currently missing. The authorities also have refused to acknowledge the detention or whereabouts of another of the arrested men, `Abd al-Rahman al-Qotaiwi. In addition, two of the detainees—Ahmad Yusif al-`Ubaidi and al-Sadiq Salih Humaid—reportedly suffer from medical ailments, and it appears that medical treatment has been denied.
Repeated requests by Human Rights Watch to the Libyan government for information about the case – including the location of the two “disappeared” men – have gone unanswered.
To Human Rights Watch’s knowledge, none of the arrested men engaged in or advocated violence. Dr. Idris Boufayed, the demonstration’s main organizer, is an outspoken critic of the Libyan leader and runs a small exile group called the National Union for Reform (he lived in Switzerland for 16 years). Security agents detained him for at least one month in November 2006, after he wrote critical letters to Libyan opposition websites.8
Another of the men, Jamal al-Haji, is a writer and government critic. In an article he wrote a few days before his arrest he called for “freedom, democracy, a constitutional state, and law.” Al-Haji holds Danish citizenship. The Danish government has, without success, repeatedly requested access to al-Haji, under the terms of the Vienna Convention on Consular Relations. Libya refuses to recognize al-Haji’s Danish citizenship or to grant Danish diplomats access to him.
At least 13 members of the group, and possibly all 14, are currently on trial facing three major allegations: planning to overthrow the government, arms possession, and meeting with an official from a foreign state (the US).9 Reportedly, their last court hearing was in August, subsequent hearings have been indefinitely postponed, and their case has been transferred from a regular court to a Revolutionary Security Court. The next trial date is set for January 8.
While the precise charges and their legal basis remain unclear, some or all of these defendants could face the death penalty, as could Fathi al-Jahmi. Despite numerous promises to abolish the death penalty, capital punishment still exists, including for actions that should not be considered criminal, but should be protected as the exercise of the rights to free assembly and expression.
Both Law 71 and Article 206 of the Libyan penal code impose the death penalty on those who call “for the establishment of any grouping, organization or association proscribed by law,” and on those who belong to or support such an organization.
Article 166 of the penal code provides that the death penalty may be imposed on anyone who talks to or conspires with a foreign official to provoke or contribute to an attack against Libya. Article 167 provides that sentences up to life in prison can be imposed for conspiring with a foreign official to harm Libya’s military, political or diplomatic position. The UN Human Rights Committee criticized Libyan government for applying the death penalty to a “vague and broadly defined” set of offences.10
The EU Guidelines on Human Rights Defenders (2004) commit the EU to use the tools at its disposal, including undertaking demarches to raise the cases of human rights defenders who are at risk. At least two of the 14 men, and perhaps the entire group, may fit into the category of human rights defenders who were exercising their rights to freedom of expression and assembly.
The EU Guidelines on the Death Penalty (1998) state that “where the European Union becomes aware of individual death penalty cases which violate minimum standards, the EU will consider making specific demarches,” and notes that “speed will often be essential in these cases.” All 14 men may face the death penalty for attempting to organize a peaceful, public demonstration in memory of the 12 killed demonstrators in Benghazi. The EU has so far failed to act on behalf of the 14 men, and should immediately undertake a demarche that expresses profound concerns about their arrest and well being and demands that the Libyan government observe all international due process standards.
As a matter of urgency, the EU should request information from the Libyan authorities about the location and condition of the “disappeared” detainees Jum`a Boufayed and `Abd al-Rahman al-Qotaiwi.
Guantanamo Returnees
Over the past year, the U.S. government has returned two Libyan citizens from the Guantanamo Bay detention facility to Libya, and both are currently in detention without charge and apparently with no access to a lawyer. Sofian Ibrahim Hamad Hamoodah was returned on or around September 30, 2007. Mohamed al-Rimi was returned on or around December 17, 2006. According to the U.S. government, the Libyan authorities gave credible assurances of humane treatment prior to the returns.
Shortly after al-Rimi’s return, an official from the Qadhafi Development Foundation, a quasi-governmental organization run by Saif al-Qadhafi, said the Libyan authorities did not want al-Rimi, and he would "go back to his family soon." More than one year later, al-Rimi remains in detention.
The U.S. State Department and the Qadhafi Development Foundation say they have visited both men, in the presence of Libyan security officials, most recently on December 25, 2007. Despite repeated requests, Libyan authorities have provided Human Rights Watch with no information about either man.
The EU should urge the Libyan authorities to charge or release the two men, provide them with access to lawyers, and allow independent medical and human rights organizations to visit them in detention.
Women’s rights
Libya has supported advances in women’s rights, but serious problems remain.11 Although the real extent of violence against women in Libya is still unknown, the government's position continues to be one of denial, leaving victims unprotected and without legal remedies. There is no domestic violence law in Libya and laws punishing sexual violence are inadequate. Only the most violent rape cases are criminally prosecuted, and judges have the authority to propose marriage between the rapist and the victim as a “social remedy” to the crime. Rape victims themselves risk prosecution for extramarital sexual relations if they attempt to press charges.
Human Rights Watch has focused on the government’s practice of arbitrarily detaining women and girls indefinitely in so-called “social rehabilitation” facilities, which hold women and girls suspected of transgressing moral codes. The state may detain the women and girls indefinitely because, the government says, their families have rejected them and they are at risk. The government routinely violates the detainees’ rights, including due process, liberty, freedom of movement, personal dignity, and privacy. Many women and girls detained in these facilities have committed no crime, or have already served a sentence. Some are there because they were raped and are now ostracized for allegedly staining their family’s honor. There is no way out of these facilities unless a male relative takes custody of the woman or girl or she consents to marriage.
The “social rehabilitation” facilities have a distinctly prison-like character. The women and girls sleep in locked quarters and are not allowed to leave the gates of the compound. The custodians sometimes subject them to long periods of solitary confinement, occasionally in handcuffs, for trivial reasons like “talking back.” They are tested for communicable diseases without their consent upon entry, and most are forced to endure invasive virginity examinations. Some residents are as young as 16, but authorities provide no education, except weekly religious instruction.
In a meeting with Human Rights Watch, Aisha al-Qadhafi, daughter of the Libyan leader, promised to investigate the abuses documented in our report on the topic.12 In February, the government said it had established a committee to study the conditions in Libya’s “social rehabilitation” facilities, including examining the physical and psychological well-being of the detained women and children. The results of the committee’s work, if any, remain unclear.
We urge the EU to follow up on the committee’s progress in reviewing these conditions to see if there has been any change in the circumstances leading to such arbitrary detentions.
Migration concerns
Over the past decade, hundreds of thousands of people have come to Libya, mostly from sub-Saharan Africa, either to stay in the country or to travel through to Europe. Many of the foreigners came for economic reasons, but some have fled their home countries due to persecution or war. Once welcomed as cheap labor, sub-Saharan Africans in Libya now face tightened immigration controls, detention and deportation. From 2003 to 2005, the government repatriated roughly 145,000 foreigners, according to official Libyan figures.
In 2006 Human Rights Watch released a report that documented how Libyan authorities have arbitrarily arrested undocumented foreigners, mistreated them in detention, and forcibly returned them to countries where they could face persecution or torture, such as Eritrea and Somalia.13 Foreigners interviewed by Human Rights Watch reported arbitrary arrests, beatings and other abuse during their detention and deportation. On July 8, 2007, Libya reportedly rounded up approximately 70 Eritrean men, some of whom may have fled conscription into the Eritrean military. Eritrea has no conscientious objector status and military offenders are frequently subjected to torture. Reportedly at Eritrea’s request, the 70 men were photographed and made to give their names and dates of birth. They say Libyan guards have threatened them with deportation.
An overarching problem is Libya’s refusal to introduce an asylum law or procedure, despite repeated promises to do so and the establishment of a Committee to draft such a law in 2006. Libya has not signed the 1951 Refugee Convention, and the government makes no attempt to identify refugees or others in need of international protection.
In negotiations with Libya on the subject of migration, the EU must recognize that Libya does not provide effective protection to refugees and asylum seekers, and that any cooperation with Libya to reduce irregular migration to Europe needs to ensure that potential asylum seekers are given the opportunity to lodge refugee claims before being returned to Libya, where they would be at risk of return to countries where they could face persecution. The EU should also insist, in any agreement on migration, that Libya does not physically abuse or maltreat migrants during arrest and in detention and that it treat non-Libyan nationals on its territory according to international human rights standards.
Issues Related to HIV/AIDS
Finally, at least 50 of the Benghazi children who were infected with HIV in the medical workers’ case have died, and the case has rightfully angered the Libyan public. Families of the children told Human Rights Watch in 2005 that they had suffered discrimination and stigmatization from Libyan officials and the public. The Memorandum on Relations between the EU and Libya signed in July 2007 involves treatment for children at hospitals in Europe, which is welcome move, as these children need and deserve proper care. It is essential that the EU steps forward now and engages with the Libyan government to develop a program to increase understanding of AIDS and to reduce stigma and discrimination against people living with HIV.
Recommended Human Rights Benchmarks:
As EU-Libyan relations evolve, the EU should raise and press human rights matters with the Libyan authorities, according to the EU’s guidelines on, inter alia, the death penalty; torture and other cruel, inhuman or degrading treatment; and human rights defenders. It is imperative that the EU take these concerns into account in all discussions and in pending agreements between Libya and the EU. Failure to do so will undermine EU efforts in the domain of human rights in Libya, the Middle East and elsewhere in the world. In particular, the EU should call on Libya to:
Regarding Torture
• Promptly investigate all allegations of torture and ill-treatment in a thorough and impartial manner that is capable of leading to successful prosecutions when appropriate;
• Hold accountable, including through criminal prosecutions, all those who resort to or condone torture or ill-treatment against prisoners and detainees;
• Ensure that confessions and other forms of evidence obtained by means of torture are not admissible in a court of law;
• Extend a standing invitation to all of the human rights specialists (“special procedures”) of the U.N. Commission on Human Rights, facilitate their visits to Libya, and implement their recommendations.
Regarding the now-abolished People’s Court
• Release all prisoners convicted by the People’s Court solely for having peacefully expressed their political views;
• Retry all other cases tried by the People’s Court since its inception with full transparency and due process guarantees. Such trials were frequently marred by serious due process violations, including long periods of pre-trial detention and unreasonable restrictions on access to lawyers;
Regarding Political Prisoners
• Observe all international due process standards in relation to the 14 men arrested in Tripoli on February 16-17, 2007;
• As a matter of urgency, provide information about the location and condition of the “disappeared” men Jum`a Boufayed and `Abd al-Rahman al-Qotaiwi;
• Comply with its obligations under the Vienna Convention on Consular Relations and allow Danish diplomats access to the detained Danish citizen Jamal al-Haji;
•Proceed with trial or release Fathi al-Jahmi, detained since 2004 by the Internal Security Agency, after criticizing Libyan leader Mu’ammar al-Qadhafi;
• Immediately inform the family members of all prisoners, political and otherwise, of the location of their imprisoned relatives. If the prisoner is deceased, the government should provide a death certificate and, if possible, the body or mortal remains.
Regarding Freedom of Expression
• Repeal Law 71 of 1972, which bans any group activity based on a political ideology opposed to the principles of the 1969 al-Fateh Revolution;
• Repeal articles of the penal code that criminalize free expression;
• Release all individuals imprisoned or detained solely for exercising their right to free expression;
• Allow for the establishment of private media outlets beyond the two newspapers and one television station reportedly owned by the al-Ghad company, controlled by Saif al-Qadhafi. Libyan citizens should be free to receive and impart information through the media of their choice;
• Provide unrestricted access to Internet websites that carry material protected by the rights to free expression and free information.
Regarding Freedom of Association
• Pass legislation that facilitates the registration of non-governmental organizations by a non-political body, with the right to appeal;
• Repeal Law 71 of 1972 and related articles of the penal code that criminalize free association;
• Allow unions and professional organizations to appoint their leadership without government interference;
• Allow all Libyan citizens to engage freely in human rights work, including by forming independent human rights groups.
Regarding the Death Penalty
• Abolish the death penalty in the new penal code currently being drafted, as called for in the Great Green Charter for Human Rights in the Jamahariya Era (article 8);
• Declare an immediate moratorium on executions until the new penal code comes into effect;
• Become a party to the Second Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), which aims at the abolition of the death penalty.
Regarding the Draft Penal Code
• Eliminate the death penalty as a punishment;
• Eliminate all articles that criminalize peaceful acts and forms of association and expression protected by international human rights law;
• Define “terrorism” in a focused and narrow way to exclude peaceful acts and expressions critical of the government.
Regarding Women’s Rights:
• Release all women and girls detained in so-called “social rehabilitation” facilities who have not been charged with or convicted of a crime, and those who have served their sentence;
• Cease immediately the practice of forcing detained women and girls to undergo virginity examinations against their will.
• Repeal regulations that condition a woman’s release from any form of detention on a male relative claiming custody of her;
• Repeal Law No. 70 (Regarding the Establishment of the Hadd Penalty for Zina Modifying some of the Provisions of the Penal Law) of 1973;
• Pending repeal of the zina law, ensure that women accused of the crimes of adultery and fornication are afforded due process rights. When detained, authorities must inform them of the charges against them, formally charge them, and allow them to contact family members and legal counsel;
• Establish voluntary shelters for women and girls at risk of violence that function as refuges without compromising the residents’ privacy, personal autonomy, and freedom of movement;
• Prosecute perpetrators of domestic and sexual violence to the fullest extent of the law;
• Prohibit judges from suggesting the marriage of the perpetrator and the victim as a remedy in rape cases;
Regarding Children’s Rights:
• Prohibit the use of disciplinary measures for detained children that involve closed or solitary confinement or any other punishment that may compromise the physical or mental health of the child. Use cell confinement only when absolutely necessary for the protection of a child. Where necessary, it should be employed for the shortest possible period of time and subject to prompt and systematic review.
Regarding International Human Rights Treaties
• Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
Regarding protection of refugees and asylum seekers
• Sign and ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol;
• Sign a Memorandum of Understanding with the United Nations High Commissioner for Refugees (UNHCR) and allow the agency to perform its functions freely in Libya;
• Introduce laws to respect the prohibition on refoulement and to establish an effective, fair and lawful asylum procedure;
• Monitor conditions in all detention facilities housing migrants and possible asylum seekers, ensure that conditions conform to international minimum standards, and criminally prosecute guards and other officials who physically abuse or otherwise mistreat detainees;
• Suspend all expulsions until effective and accessible mechanisms are in place by which non-nationals facing expulsion may challenge both their detention and deportation on human rights as well as immigration grounds;
• Present all migrants, asylum seekers and refugees taken into custody on non-immigration offenses promptly before a judicial authority, and charge them with a cognizable criminal offense, or release them.
[1]Memorandum on Relations between Libya and the European Union, July 23, 2007.
[2] Conclusions of EU General Affairs and External Relations Council, Luxembourg, October 15, 2007.
[3] These include article 2 of the Great Green Charter of Human Rights; article 17 of Law 20, On Enhancing Freedom; and articles 435, 341 and 337 of the penal code. Human Rights Watch, Words to Deeds: The Urgent Need for Human Rights Reform, pp. 48-49.
[4] Human Rights Watch, Words to Deeds: The Urgent Need for Human Rights Reform, https://www.hrw.org/reports/2006/libya0106/
[5] In addition, the UN Human Rights Committee recently noted its concern that Libyan law prescribes corporal punishments such as flogging and amputation, which, even if rarely applied, constitute torture or other cruel, inhuman or degrading treatment. Concluding observations on Libya’s fourth periodic report, CCPR/C/LBY/CO/4/CRP.1, 30 October 2007, para. 16.
[6] Id., para 22.
[7] The full list of those arrested is: Al-Mahdi Humaid, Al-Sadiq Salih Humaid, Faraj Humaid, `Adil Humaid, `Ali Humaid, Ahmad Yusif al-`Ubaidi, `Ala' al-Dirsi, Jamal al-Haji, Dr. Idris Boufayed, Farid al-Zuwi, Bashir al-Haris, Al-Sadiq Qashut, Jum`a Boufayed, `Abd al-Rahman al-Qotaiwi
[8] Human Rights Watch, “Security Agency Detains Critic,” December 4, 2006, https://www.hrw.org/english/docs/2006/12/04/libya14735.htm. For an example of Dr. Boufayed’s writing, see http://www.libyaalwafa.com/idrees_abufyed/public_announcement_112106.htm.
[9] A report from the last court session is at:
http://www.libya-almostakbal.net/Alakhbar2007/July2007/feb_demo_trial160...
[10] Concluding observations on Libya’s fourth periodic report, CCPR/C/LBY/CO/4/CRP.1, 30 October 2007, para. 13.
[11] For example, the UN Human Rights Committee noted that Libya had admitted women to the judiciary and had established both a center for women’s studies and a Department for Women’s Affairs. However, in addition to other concerns, the Committee also “reiterate[d] its previous concern that inequality between women and men continues to exist in many areas, in law and practice, such as notably inheritance and divorce.” CCPR/C/LBY/CO/4/CRP.1, 30 October 2007, para. 11.
[12] Human Rights Watch, A Threat to Society?: Arbitrary Detention of Women and Girls for“Social Rehabilitation,” https://www.hrw.org/reports/2006/libya0206/.
[13] Human Rights Watch, Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees, https://www.hrw.org/reports/2006/libya0906/
