The African Court on Human and Peoples’ Rights (AfCHPR) has held that Libya violated the rights to liberty and fair trial by holding Saif al-Islam Gaddafi, son of former leader Muammar Gaddafi, in secret detention since 2011. See AfCHPR, African Commission on Human and Peoples’ Rights v. Libya, App. No. 002/2013, Judgment of 3 June 2016. These breaches, the Court determined, violate Libya’s international obligations under the African Charter on Human and Peoples’ Rights, which secures the fundamental rights to liberty and to have one’s cause heard in articles 6 and 7, respectively. The case was referred to the Court by the African Commission on Human and Peoples’ Rights (ACHPR) and decided on the merits without participation by the State, resulting in a judgment by default against Libya. See id. Saif al-Islam Gaddafi is also sought by the International Criminal Court, which has an open investigation into crimes against humanity allegedly committed under Muammar Gaddafi’s rule as his regime was challenged by the popular uprising of early 2011. See International Criminal Court, Libya.
Facts and Allegations Before the Court
The applicant in the case, the African Commission on Human and Peoples’ Rights, submitted this case to the Court after receiving a 2012 communication from a representative of Saif al-Islam Gaddafi describing violations of his human rights. See African Commission on Human and Peoples’ Rights v. Libya, para. 4. According to the communication, the National Transitional Council – then recognized as the de facto Libyan government in the wake of the civil war that overthrew former leader Muammar Gaddafi – had kept Saif al-Islam Gaddafi in secret detention since November 2011 without allowing him to seek counsel or contact the outside world. See id. at para 7. The militia had captured him as he tried to flee the violent political turmoil after his father was killed. [The Guardian: Prophet] He had not been charged with any criminal offenses nor brought before a legitimate judicial body. See African Commission on Human and Peoples’ Rights v. Libya, para. 7. The Commission asserted that Libya had violated the African Charter on Human and Peoples’ Rights by depriving Gaddafi of the right to liberty and security of his person and the right to have his cause heard. See id. at para. 9.
The Commission further alleged that Libya had breached Saif al-Islam Gaddafi’s rights by repeatedly failing to comply with the Court’s 2013 order for provisional measures. See id. at para. 10. Article 27(2) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights and Rule 51(1) of the Rules of Court give the Court power to issue provisional measures when doing so appears necessary under the circumstances. Here, the Court issued orders for Libya to, among other things, withhold any judicial proceedings that could cause irreparable harm to Saif al-Islam Gaddafi, allow him to obtain counsel, and permit family members to visit him. See id. at para. 15. When Libya failed to respond to the orders within the time allotted, the Court granted Libya an extra fifteen days to file a response. Libya continued to ignore the orders. See id. at para. 17. The documents Libya did eventually submit in response failed to meet the order’s requirements. By June 16, 2014, the Court had indicated that Libya’s ongoing neglect would eventually compel it to issue a judgment in default under Rule 55 of its rules. See id. at para. 30.
In July 2015, the AfCHPR learned that another court in Tripoli had sentenced Saif al-Islam Gaddafi to death in abstentia, meaning that he was not physically present for the trial. See id. at para. 36. This news led the AfCHPR to issue a second order for provisional measures, again demanding Libya to refrain from carrying out its plans and noting that the execution would breach Libya’s international obligations under the Charter, the Protocol, and other human rights instruments that it had ratified. See id. at para. 37.
In the present case, the Commission asked the AfCHPR to issue a judgment in default against Libya under Rule 55 for its deprivation of Saif al-Islam Gaddafi’s right to be free from arbitrary arrest and right to obtain counsel. See id. at para. 38. Under Rule 55, the Court may, at the request of the other party, render a judgment in default if one party has not appeared before the Court but has been served the application and other necessary documents. See id. at para. 40. The Court concluded that a judgment in default was appropriate because all of the pleadings had been served on Libya and Libya repeatedly failed to reply with a defense, even though its deadline had been extended. See id. at para. 42.
Issuing a judgment on the merits, the Court found that Libya had violated articles 6 and 7 of the Charter. See id. at paras. 84, 97. These articles guarantee the right to liberty and security of person and the right to have one’s cause heard. See id. The Court reasoned that secretly detaining Saif al-Islam Gaddafi was a grave rights violation, made more dangerous by its potential for snowballing into other violations like torture and ill-treatment while shielded from due process protections. See id. at para. 84. It held that keeping Saif al-Islam Gaddafi detained in isolation and without access to a lawyer to assist him in challenging the detention violated his right to liberty and security of his person under Article 6. See id at para. 85.
Additionally, the Court held that Libya’s actions had deprived Saif al-Islam Gaddafi of a fair trial in contravention of Article 7. The Court held that his right to defense was violated in light of his isolated detention without legal representation, his interrogation in the absence of counsel and lack of opportunity to hear any charges against him before the start of trial, and the death penalty he received in absentia. See id. at paras. 90, 94, 96. It especially noted the violation of his right to be promptly arraigned before a judicial authority, pointing to the fact that he was arraigned before an extra-ordinary Court and later received the death sentence from an unknown tribunal. See id. at para. 91.
The judgment emerged in the aftermath of the civil war that led to Muammar Gaddafi’s toppling. Saif al-Islam Gaddafi’s father had served as the authoritarian leader of Libya for 42 years and was ousted shortly after the fall of Egypt’s Mubarak and Tunisia’s Ben Ali [BBC] Realizing that he was in danger, Saif al-Islam Gaddafi had tried to flee the country but was captured by militia. [The Guardian: Prophet]
In February 2011, the Libyan security forces were charged with breaking up and preventing protests that demonstrated opposition to Muammar Gaddafi. The security forces used lethal force against demonstrators, resulting in death and injury, and also arrested and detained hundreds of individuals. ICC, The Prosecutor v. Saif Al-Islam Gaddafi. According to the ICC, Saif al-Islam Gaddafi’s role within the regime was equivalent to that of a prime minister with control over State finances and logistical operations. The ICC has found that it is a reasonable proposition that Muammar Gaddafi and Saif al-Islam Gaddafi together created and implemented a plan to quiet the demonstrations in opposition to Muammar Gaddafi’s rule. ICC, The Prosecutor v. Saif Al-Islam Gaddafi.
Saif al-Islam Gaddafi’s death sentence was part of a mass trial of former Gaddafi officials, controversially held by judges in Tripoli. The indicted included Gaddafi’s former bodyguard, Saif al-Islam Gaddafi’s uncle, and the former intelligence chief. [The Guardian: Prophet] At first Saif al-Islam Gaddafi appeared before the judges by video link, but this ended once Tripoli was overtaken by the current state authority with whom his captors refused to cooperate. [The Guardian: Prophet] At trial, Saif al-Islam Gaddafi was accused of recruiting mercenaries, attacking civilian targets, creating armed groups, and using lethal force against demonstrators. He was ultimately convicted of incitement to murder and rape. [The Guardian: Sentenced]
The Tripoli trial, however, has been condemned by human rights groups like Amnesty International and Human Rights Watch, as well as the International Bar Association. [The Guardian: Sentenced]
International Criminal Court Proceedings
The International Criminal Court (ICC) issued a warrant in June 2011 for the arrest of Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al-Senussi for murder and persecution committed during February 2011. [ICC Press Release] Muammar Gaddafi’s case was subsequently terminated upon his death, and Abdullah al-Senussi’s case was held inadmissible on October 11, 2013. [ICC Press Release] Since Saif al-Islam Gaddafi is still being held by militia, the ICC case remains in the pre-trial stage until he can be transferred to The Hague. ICC, Gaddafi Case. The ICC found in December 2014 that Libya is in non-compliance with its requests to transfer Saif al-Islam Gaddafi into the custody of the ICC. The ICC, therefore, referred the issue to the Security Council. [ICC Press Release] Saif al-Islam Gaddafi is charged with two counts of crimes against humanity for murder and persecution for his role in implementing the plan to use lethal force and arrests and detention to quiet opposition to his father’s regime. ICC, The Prosecutor v. Saif Al-Islam Gaddafi.
The Rights to Liberty and Fair Trial Before the African Court
The African Court on Human and Peoples’ Rights considered the rights to liberty and fair trial in a case that was decided last November. See AfCHPR, Alex Thomas v. Tanzania, App. No. 005/2013, Judgment of 20 November 2015. In that case, the applicant had been imprisoned for over eight years, tried in absentia, and not provided with legal counsel. The Court found a violation of the right to a fair trial due to the undue delay in resolving his case, his absence at his own trial, and Tanzania’s failure to fulfil its obligation to provide free legal counsel. See id. at para. 161. In that instance, the Court did not find a violation of the right to liberty under Article 6 because as the applicant was detained pursuant to an order from a court, there was not “a flagrant denial of justice” that would indicate the applicant’s detention violates the right to liberty. See id. at para. 150.
While the African Court has not considered the rights to liberty and fair trial on the merits in many cases, the African Commission on Human and Peoples’ Rights has considered both rights in a number of previous cases. See, e.g., ACommHPR, Gabre-Selassie v. Ethiopia, Communication No. 301/05, 37th Ordinary Session, Merits Decision of 12 October 2013.
Referral of cases from the ACHPR to the Court is one of three ways that individual complaints may be reviewed by the African Court on Human and Peoples’ Rights. Under Article 5 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, the Court may only hear individual complaints submitted by the African Commission, States parties, and individuals with complaints against States that have deposited the necessary declaration under Article 34(6). Only eight States allow individuals to directly approach the Court with a complaint against them. Thirty States have ratified the Protocol, allowing the African Commission to refer an individual complaint submitted originally with the Commission to the Court. See IJRC, African Human Rights System.