UN Finds Libyan Trial Violated Rights of Gaddafi Regime Members

The United Nations Mission in Libya hosts an international meeting in London, U.K.
Credit: Foreign and Commonwealth Office via Wikimedia Commons

In a report published on February 21, the United Nations Support Mission in Libya (UNSMIL) and the Office of the United Nations High Commissioner for Human Rights (OHCHR) concluded that the trial of 37 former members of the Gaddafi regime, including Saif al-Islam Gaddafi, failed to meet international due process standards. See UNSMIL & OHCHR, Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012) (2017), at 1–5. Conducted by the Tripoli Court of Assize from March 2014 to July 2015, the trial resulted in the convictions of 32 officials from the Gaddafi regime for offenses related to the 2011 Libyan uprising, including war crimes and crimes against humanity. See id. at 1, 6, 19. Despite being “so far the most prominent effort” of Libyan authorities to seek justice for these human rights violations, according to the report, the defendants lacked sufficient opportunity to consult with their attorneys, allegations of torture went uninvestigated, and the prosecution failed to call any witnesses in court. [OHCHR Press Release] UNSMIL and OHCHR have urged the Court of Cassation, which will be reviewing the case, to consider these due process violations and, in response to these deficiencies, have encouraged Libya to review and reform its domestic laws to ensure the protection of the right to a fair trial. [OHCHR Press Release] Regional and universal human rights bodies have already highlighted violations of the rights to liberty and fair trial in the context of the defendants’ detention, including Saif al-Islam Gaddafi’s secret incommunicado detention. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 52. [IJRC]

UNSMIL and OHCHR’s Findings and Recommendations

While acknowledging that this trial demonstrated significant improvement upon trials previously conducted under the Gaddafi regime, UNSMIL and OHCHR identified numerous incidents that implicate the right to fair trial. First, the compound where the trial took place was controlled by an anti-Gaddafi group, which cultivated an intimidating atmosphere for defendants. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 2. Second, many defendants were detained in 2011 and subsequently held for extensive periods of time (some for nearly two years) before being brought before the prosecutor. See id. Third, the hearing was not fully accessible to the public as the authorities often denied individuals access to the hearings, asked some observers to leave the hearings, and detained and questioned some attendees. See id. at 35.

Interrogations and Detention

Fourth, UNSMIL and OHCHR identified several issues surrounding the defendants’ initial detentions and interrogations. While awaiting trial, many defendants were held without access to their lawyers or families and allegedly suffered torture and other forms of mistreatment. See id. at 2. Interrogations were reportedly conducted by non-judicial actors in the absence of defense attorneys, and defendants were apparently not informed of their right to refrain from self-incrimination. See id. at 2–3. The prosecution assured the court that these breaches were remedied with subsequent interrogations that were procedurally fair. See id. at 2.

UNSMIL and OHCHR, however, hold reservations regarding the legality of the interrogations, noting that the “known pattern of torture and other human rights abuses” in Libya coupled with the country’s “climate of total impunity” likely kept the defendants from feeling secure. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 2. The allegations of torture, which should have been investigated by the prosecutor and the court, were instead disregarded, and the burden of proof was placed on the defendants, in violation of international standards that indicate the State should bear the burden to show that torture, intimidation, and duress were not used in obtaining confessions. See id. at 3, 25.

Preparing a Defense

Fifth, defense teams encountered great difficulty in preparing the best possible defense. Most defendants were not timely notified of the charges against them and even upon notification may not have fully understood the charges and their legal implications, given the unclear wording of the accusations and the intricacies of the case. See id. at 3.

The right to counsel was obstructed, the report indicated, as several defendants did not have representation during questioning by the prosecutor and during hearings. See id. at 3, 37. During trial, legal representation of some of the defendants argued that pre-trial interrogations that took place without the presence of a lawyer were invalid, but the court dismissed their arguments, finding representation is not a requirement for questioning. See id. at 37.

Defendants also reported not being able to speak freely with their lawyers due to obstacles encountered when scheduling meetings, such as denial of entry into the detention facility, or because guards were present during confidential conversations. See id. at 4. Some defendants could not retain the lawyers of their choice or could not keep the same attorneys for the duration of the trial due to the receipt of threats to the attorney. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 3–4.

Witnesses and Participation of Defendants in the Trial

Lastly, UNSMIL and OHCHR took issue with the lack of witnesses and defendants at trial. No prosecution witnesses testified in court; rather, the prosecutor presented the State’s case as a single oration at one hearing, which impeded defense attorneys’ ability to cross examine witnesses. See id. Defendants were arbitrarily limited to calling two witnesses each, and the lack of protection measures made some potential witnesses reluctant to testify. See id. at 4. Moreover, despite efforts made to facilitate the attendance of defendants by video conference, at least nine defendants who could not physically appear in court missed some or all of the trial’s hearings or sessions, in violation, the report indicated, of their right to be present at trial. See id.

Recommendations

In response to their findings, UNSMIL and OHCHR provided a list of recommendations for Libya’s legislative, executive, and judicial branches. See id. at 54–56. With the goal of “promoting respect for human rights,” UNSMIL and OHCHR first reiterated the suggestions made to Libyan authorities preceding and during the trial – namely, to consider establishing a judicial structure within Libya that focuses on crimes committed under international law and to support the organization of a meeting at which Libyan representatives and members of the international sphere can debate measures to improve accountability in Libya. See id. at 54.

UNSMIL and OHCHR recommend that Libya’s legislative branch review and revise the nation’s laws to eliminate broad definitions of criminal conduct, to include crimes under international law, to effect a moratorium on the death penalty with a view to abolition, and to ensure compliance with international standards of due process. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 54–55.

Recommendations to the executive branch include taking steps to ensure proper control of detention facilities, enforcing the surrender of Saif al-Islam Gaddafi to the International Criminal Court, taking steps to support the proper functioning of the domestic court system, and working to ensure the compliance of criminal investigations with international law. See id. at 55.

Recommendations to the prosecutor and judicial branch include investigating allegations of torture and mistreatment, making all relevant information available to defense attorneys, and making all non-confidential aspects of this case available to the public to take advantage of this “unprecedented opportunity to contribute to the historical record of the 2011 Revolution.” See id. at 54, 56.

Libya’s Human Rights and Humanitarian Obligations

As a State party to the African Charter on Human and Peoples’ Rights, the Arab Charter on Human Rights, and the International Covenant on Civil and Political Rights, Libya is obligated to respect the right of all persons within its jurisdiction to receive a fair trial. This includes the right to be free from arbitrary detention, to be informed of one’s charges, to have access to counsel, not to incriminate oneself, to be presumed innocent, and to be tried without delay, among other requirements. See African Charter on Human and Peoples’ Rights, art. 7; Arab Charter on Human Rights, art. 16; International Covenant on Civil and Political Rights, arts. 9, 14. As a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Libya must ensure that any statement made in response to torture is not used “as evidence in any proceedings, except against a person accused of torture.” See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15. The report assessed Libya’s compliance with fair trial guarantees in accordance with these treaties’ standards. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 10-11.

Libya is also a State party to the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of the Child; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

As a State party to the Geneva Conventions, Libya must abide by Common Article 3, which prohibits the carrying out of punishments unless all judicial safeguards have been afforded. Libya is additionally bound by Additional Protocol II to the Geneva Conventions, which contains fair trial guarantees.

Case Background

In February 2011, protests against Colonel Muammar Gaddafi’s regime erupted across Libya. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 6. Protesters were met with excessive and sometimes deadly force, with Colonel Gaddafi announcing the start of a Libyan “purge” whereby protesters and their demands would be stifled. See id. The situation quickly evolved into an armed conflict between Gaddafi’s regime and the opposition. See id. at 7. By August 2011, anti-Gaddafi groups controlled most of Libya and much of the regime’s leadership had fled. See id. Colonel Gaddafi and one of his sons were later captured and killed, and thousands of suspected Gaddafi supporters, including those on trial in this case, were also captured. See id. at 7–8.

The Human Rights Council established the United Nations International Commission of Inquiry on Libya in 2011, which found that Gaddafi’s forces had committed numerous international crimes, including murder, imprisonment, and torture. See id. at 7. The systematic nature of the violence led the Commission to conclude that it occurred pursuant to orders from Colonel Gaddafi and the regime’s senior officials. See Report on the Trial of 37 Former Members of the Qadhafi Regime (Case 630/2012), at 7. Libyan authorities, determined to bring those involved to justice, initiated proceedings against several officials of Gaddafi’s regime, with the present case being the most high profile. See id. at 8.

The United Nations Working Group on Arbitrary Detention announced in April 2016 that four of the defendants in this case had been arbitrarily deprived of their liberty. See id. at 52. Subsequently, in June 2016, the African Commission on Human and Peoples’ Rights held that Libya had violated Saif al-Islam Gaddafi’s rights by housing him in secret detention since 2011. [IJRC]