The Libyan Justice Ministry
Al-Bayda, Eastern Libya
I write to inform you of Human Rights Watch’s serious concerns about the Law on Combatting Terrorism [3/2014] that Libya’s House of Representatives (HoR) promulgated on September 14, 2014. In Human Rights Watch’s assessment, this law is inconsistent with Libya’s obligations under international human rights law, as indicated by my colleague, Hanan Salah, during a meeting with your Excellency on January 25, 2015, at Justice Ministry in al-Bayda.
We urge you to review the provisions of the law and to forward this letter to the HoR with a strong recommendation that it should revise Law 3/2014 in order to bring it into conformity with international law.
Currently, the law’s vague and overbroad provisions could be used to curtail legitimate exercise of the rights to free speech, assembly and movement, in breach of Libya’s obligations under treaties such as the International Covenant on Civil and Political Rights (ICCPR).
We consider Article 14, clause 3 to be the most troubling section of the new law. This prescribes life imprisonment for anyone who willfully "commits any act of aggression that harms national unity." This is vague, broadly framed, and makes no reference to a requirement that the “act of aggression” involves violence. It carries a risk that it could be used to prosecute free speech, assembly, and association as “acts of aggression” under the law.
Our other concerns include:
Article 2, which provides an overly broad definition of “terrorist acts” that renders it liable to misuse in ways that would threaten rights to freedom of assembly and association. Article 2 refers to a terrorist act as one that "impedes" government or public authorities from carrying out their duties or where an individual "gravely infring[es] the public order" by obstructing "the implementation of any provisions of the constitution, laws or regulations (emphasis added)."
This gives rise to a concern that people engaged in peaceful protests against the government that make it difficult for the police to travel down a street or cross a square for a few hours could risk prosecution for a terrorism offence.
Article 8 stipulates life imprisonment for establishing or leading a "terrorist organization,” and Article 9, which imposes a penalty of 10 years of hard labor for joining a "terrorist organization" within or outside of Libya. No evidence is required of involvement in violence. Given the overbroad definition of “terrorist organization” as “an organizational group comprised of three or more persons formed for any period of time and operating in a concerted manner with intent to commit any of the terrorist crimes set forth in this law on Libyan soil or abroad,” in Article 1 of the law, this creates a risk that people could be convicted and given lengthy sentences for minor crimes.
Article 3, which provides that all crimes under Libyan national law fall under the counterterrorism law if they are deemed to have been "committed with intent to realize an objective of a terrorist act or finance the terrorist acts” that are elaborated in article 3, so potentially extending the reach of the new law to any crime under the Libyan penal code.
Article 5, which exacerbates the concerns raised by Article 3. It states that anyone who attempts "to commit any felony or misdemeanor or serious or minor terrorist crime" should receive the same penalty as if the attempt were successful. This means that a person could be prosecuted for a terrorism offence for an attempted misdemeanor (by definition an minor offence). This, combined with the overbroad definition of "terrorist act" contained in Article 2, could open the way for minor offenses to be prosecuted as terrorism.
Other provisions of the anti-terrorism law that raise human rights concerns include:
Article 15, prescribes a prison term of up to 15 years for anyone who "advocates, promotes, or misinforms for the commission of a terrorist act, whether orally, in writing, or by any means of dissemination, publication or messages on websites that others may read.” Given the overbroad nature of the definition of terrorism in article 2 and the potential inclusion of all crimes as terrorist crimes in article 3, article 15 could provide a basis for prosecuting legitimate criticism of the government in ways that would infringe the right free expression. In Libya, people are often prosecuted for speech-related offences particularly for “defamation” or insults to public officials. Cases documented by Human Rights watch include sentencing for a newspaper editor to 5 years in prison for insult of the judiciary.
Article 22, which empowers courts to either bar anyone convicted under the anti-terrorism law from residing “in a particular place or area” or to restrict them to “a particular place”, potentially limiting the freedom of movement of individuals who may be prosecuted under the act for legitimately exercising free speech or other rights.
Although the anti-terrorism law does not prescribe the death penalty as a punishment, it exists, according to Article 4, “without prejudice to existing laws and any other, severer penalty, the provisions of the law shall apply to acts criminalized in these laws and set forth in the provisions of this law,” and so does not preclude the application of the death penalty in terrorism cases that could be brought under the flawed Penal Code inherited from the Gaddafi era including articles that violate international law and covenants. The risk of application is reinforced in Article 7, which states “without prejudice to any other, severer penalty, any person who commits a terrorist act under the provisions of this law shall be sentenced to life imprisonment.”
In a 2014 published report, Priorities for Legislative Reform, A Human Rights Roadmap for a New Libya, Human Rights Watch identified 11 key areas for reform, including freedom of speech, assembly and association, political rights and the death penalty given that at least 30 Penal Code articles provide for the death penalty. Human Rights Watch strictly opposes capital punishment in all circumstances because of its irreversible, cruel, and inhumane nature.
In the absence of a universally accepted definition of terrorism, the UN’s first special rapporteur on counterterrorism and human rights called in 2010 for states to define terrorism narrowly, and warned that “the adoption of overly broad definitions … carries the potential for deliberate misuse of the term … as well as unintended human rights abuses.” He advised that that any definition of terrorism should require that an act caused or intended to cause death or serious bodily injury, and aimed to compel certain responses by a government or international organization.
In the same report, the special rapporteur noted an increase in “infringements upon the exercise of the right to freedom of assembly and association in the name of counter-terrorism,” and stressed that “limitations must be narrowly construed as to their objective, i.e. counter-terrorism.”
Article 19 of the ICCPR stipulates that “Everyone shall have the right to freedom of expression.” While Article 19 of the ICCPR allows for limitations to the right to freedom of expression, paragraph 3 sets out the conditions under which such limitations are permissible, namely that they be provided by law and necessary “(a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” This test is also mirrored in Article 27(2) of the African Charter on Human and Peoples’ Rights.
The ICCPR also guarantees freedom of assembly and association. Article 21 stipulates “The right of peaceful assembly shall be recognized,” and Article 22 stipulates that “Everyone shall have the right to freedom of association with others.” Both Articles state these rights can only be restricted “in conformity with the law and which are necessary in a democratic society in the interests of national security, or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." Freedom of assembly and association are also protected under articles 10 and 11 of the African Charter on Human and Peoples’ Rights.
The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), ratified by Libya in 1970, and the African Charter of Peoples and Human Rights, ratified by Libya in 1986, guarantee that everyone has the right to freedom of movement and residence within the borders of their state. Any imitations to this right must be narrowly defined. Article 12 of the ICCPR provides that "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."
Under international law, restrictions on human rights must be ruled by legality, necessity and proportionality. Article 4 of the ICCPR allows for derogation from some protections but only when there is a declared state of emergency threatening the life of the nation. Any such limitations must be only to “the extent strictly required by the exigencies of the situation.” The UN Human Rights Committee has emphasized in general comment 29 that any such derogation “must be of an exceptional and temporary nature.”
I take this opportunity to thank you for your attention to this important matter and hope that the Libyan authorities will take prompt action to address the concerns we have set out. We hope that these comments will assist in the process of revising and amending Law 3/2014. In its present form, the counterterrorism law is inconsistent with Libya’s obligations under international human rights law.
Please be advised that we intend to make this letter setting out our concerns publicly available.
Sarah Leah Whitson
Middle East and North Africa
Human Rights Watch