Libya: As Gaddafi regime trials fall short, ICC must act on widespread abuses

Libyan trial fails to protect fair trial rights

On 21 February 2017, the Office of the United Nations High Commissioner for Human Rights (UNHCR) and the United Nations Support Mission in Libya (UNSMIL) published the Report on the Trial of 37 Former Members of the Gaddafi Regime (Case 630/2012) (the Report). 

The Report assesses whether the trial of former members of the Gaddafi regime, including Muammar Gaddafi’s son, Saif al-Islam Gaddafi, and former intelligence chief, Abdullah al-Senussi, met Libya’s obligations under international human rights law and standards and Libyan legislation. 

Those international standards are set out in various conventions, such as the International Covenant on Civil and Political Rights, the Convention Against Torture, the African Charter on Human and Peoples' Rights, the Arab Charter on Human Rights and Geneva Conventions of 1949 and Additional Protocols. 

The Report concludes that the proceedings failed to protect many rights of the defendants as well as the right to truth of the Libyan public. 

The findings of the Report covered the following areas:

Violations of the defendants’ pre-trial rights

The Report found that most of the defendants were not promptly informed of charges against them and detained for long periods of time, in some cases almost two years, before being brought before the prosecutor. Many of them had little or no contact with the outside world and only met their lawyers for the first time at the initial indictment hearings in September and October 2013, or even later. Consequently, the defendants were not given the opportunity to question the legality of their detention or prepare their defence in advance of the hearing. Saif al Islam Gaddafi, who did not attend any of the trials in person, has been held in isolation in Zintan since his arrest in November 2011. He has only had a few consultations with external parties, always in the presence of his captors or under surveillance.

Torture

Some of the defendants raised complaints of torture, as well as threats and blackmail during their detention.  However, the Report noted that the trial prosecutor overlooked the complaints and gave assurances that his team had conducted new interrogations without any coercion and did not rely on any initial interrogation records of armed groups.  Not only did the court fail to investigate and prosecute the alleged perpetrators of torture, it also dismissed the allegations of torture on the grounds that no evidence was provided by the defendants.

Transparency and the right to truth

The Report noted issues with transparency. The hearing took place in 25 trial sessions over 16 months, with each session lasting about half a day.  Over that time, the prosecution put forward its case in one speech lasting only 45 minutes.  This has meant that the prosecution’s case has remained largely unknown to the public.  A full judicial record of the trial was not made available to the public, even though this would have broadened the public’s understanding of the 2011 uprising.

Equality of arms

The Report found that the defence lawyers were not given reasonable time to prepare their cases, including having private consultations with their clients, and were not given access to evidence.  Some defendants experienced difficulties in hiring and retaining lawyers, which, according to the Report, was perhaps as a result of threats and intimidation. The lawyers for the defence were not on an even playing field with those for the prosecution: none of the prosecution witnesses were called to be examined and the court imposed a restriction of two defence witnesses per defendant.

Appeal

Finally, the Court of Cassation is currently reviewing whether the Tripoli Court of Assize followed procedure and correctly applied the law in its judgment. The appeal falls short of international standards insofar as the appeal is limited to reviewing points of law, rather than the higher court considering the facts and evidence.

Clear grounds for ICC intervention

In June 2011, the ICC issued arrest warrants against two of the defendants in the Libyan proceedings, Saif al-Islam Gaddafi and Abdullah al-Senussi.  Subsequently, the Libyan authorities requested the ICC not to pursue those individuals on the grounds that Libya intended to prosecute them in national courts.  The ICC refused to drop the case against Saif Gaddafi.  In contrast, on 24 July 2014, the Appeals Chamber deferred prosecution of al-Senussi to the Libyan authorities. The ICC warned, “[t]he challenge is now for Libya to demonstrate to the world that Al-Senussi will receive a genuinely fair, impartial and speedy trial that respects all his rights and fundamental guarantees including the right to counsel of his choice.”  The Report calls into question the Libyan authorities’ ability to guarantee a fair trial to the defendants.  These concerns make it clear that ICC should pursue their case against Saif Gaddafi.   

When the ICC was set up, it was envisaged that it would be a court of last resort.  First and foremost, prosecutions of international criminals should be brought in national courts.  However, the situation in Libya, as demonstrated by the national proceedings, makes it clear that Libya is unable to conduct trials fairly.  The ICC has safeguards in place to protect the right to a fair trial, including the effective right to legal representation and financial support for legal costs if required. Until these rights can be guaranteed in Libya, the ICC should not defer any prosecutions to the Libyan authorities. The ICC should be proactive in investigating the situation in Libya and bringing an end to impunity.

Looking forward, in its twelfth report on Libya, published on 9 November 2016, the Office of the Prosecutor of the ICC stressed its commitment to expand its investigations and prioritise the situation in Libya for 2017. The ICC has faced its own difficulties in prosecuting individuals from Libya, including gaining access to the country for reasons of insecurity and financial constraints. This has prevented the ICC from carrying out fact-finding activities on the ground. The opportunity should be taken to overcome these obstacles, such as encouraging victims and witnesses to approach the ICC with information.

An important aspect of a right to a fair trial is the right to truth, not only for the parties to the proceedings, but also for the Libyan public. The process of fact gathering, victim and witness participation and publication of court transcripts helps the Libyan public understand its history, and can form the basis for reparations as well as prevent denials. Through the Registry’s Victims Participation and Reparations Section, victims are given the opportunity to raise complaints about defendants before the ICC. Victims and witnesses should be supported by the international community to engage with the ICC.

The Director of Lawyers for Justice in Libya (LFJL), Elham Saudi, remarked “The right to a fair trial is fundamental, no matter the gravity of the crimes allegedly committed by the defendant. Every person is entitled to have their guilt or innocence decided by a court; not presumed through circumstance.  Amongst other things, a fair trial requires a public hearing within a reasonable time and access to legal representation from the moment the defendant is first detained until the conclusion of trial. These rights have been undermined in the prosecution of the former members of the Gaddafi regime in Libya.” She added, “LFJL welcomes the commitment of the ICC prosecutor to prioritise the situation in Libya. The focus now should be on communicating the ICC’s progress to the Libyan public and civil society and collaborating with them to investigate perpetrators of past and ongoing atrocities.”

Time for the ICC to act

During times of ongoing armed conflict and political fragmentation, the ICC can play an important role in bringing key perpetrators of grave human rights to justice. The ICC has recently stated its commitment to prioritise the situation in Libya for 2017. It must meet expectations by prosecuting those who carried the greatest responsibilities for the attacks against civilians during and since the 2011 uprising.

Lawyers for Justice in Libya (LFJL) is a non-governmental organization and charity, incorporated for the public benefit in order to defend and promote human rights in Libya. Established in response to the 17 February 2011 uprising in the country, LFJL works to promote and nurture justice, human rights, democracy and civil society in Libya through holistic programmes within the legal profession. Find out more about LFJL.