Violations of human rights are committed by all countries with varying degrees of severity. Most states, especially third-world countries, such as Libya, openly violate human rights principles against their citizens without apologizing. Other countries, such as the U.S. and Britain, as will be demonstrated in this article, violate their human rights laws but mainly against foreign individuals. Such violations are always justified for being committed for national interest causes. This article will examine how human rights laws are violated in Libya during and after Gaddafi.
Countries are usually defensive when they are faced with their records of human rights violations, and they attempt to point to the positive aspects of their records, such as granting minorities rights and instituting the sensation of political enfranchisement but only through quasi parliamentarians appointed by the regime. Sometimes, countries refer to other countries’ corrupt recordsto deflect criticism of their abusive policies.
The irony is that no regime in the world has advocated, enacted, and at the same time violated human rights laws such as the Gaddafi regime. During Gaddafi’s rule of Libya for more than four decades, he portrayed himself as the champion and savior of humanity. He painted a picture of Libya, under his leadership, as the protector and sanctuary of the oppressed in the world. Gaddafi proposed and advocated, as he thought, permanent solutions for the political, economic, and social problems of “humanity”. Gaddafi’s ideas were formulated in his “Green Book,” which was described in his addendum, the “Green Charter for Human Rights,” as:
“the Green Book, humanity’s guide towards total deliverance from power, be itheld by individuals, classes, clans, tribes or parties, and the path towards the foundingof a society for all Men, where all human beings will be free and equal in the exerciseof power and in the possession of wealth and arms.”
Looking back at Gaddafi’s regime and examining his legacy of enacted laws, one can say that the only valuable thing he left for the Libyans is an excellent collection of human rights laws. What is required first is a revision of the existing laws and changing its cosmetic terminologies, such as “revolution” and “green,” and replacingthem with meaningful terms. However, most importantly is to embark on a just implementation of the human rights laws.
In this article, we shall examine how Libya ratified international conventions and enacted laws protecting human rights under Gaddafi. Conversely, we shall explore whether Gaddafi’s regime was honest and transparent in protecting human rights as he preached and as per his laws.
Human Rights Legislations
On the international level, Libya is a signatory to most international treaties and conventions on human rights. Libya is a member of the United Nations Covenant on Civil and Political Rights, the United Nations Covenant on Economic Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the African Convention on Human and Peoples’ Rights, the Convention on the Rights of the Child, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Convention on the Elimination of all Forms of Racial Discrimination.
On the national level, Gaddafi announced various declarations and enacted numerous laws starting with what Gaddafi called “First Declaration of the Great Al Fateh Revolution” and considered”the final triumph of freedom on this Earth.” Gaddafi broadcasted the Declaration on Libyan radio on the morning of Monday 1st of September 1969. Another event on the road of what Gaddafi believed to be committed for the sake of rescuing humanity was the Declaration of the Institution of the People’s Power on 2nd of March 1977.
The Great Green Charter of Human Rights of the Jamahiriya-era (state of the masses) (the Charterer) was enacted in June 1988. Like all other laws enacted during Gaddafi-era, the said Charter called for the right to life, personal liberty and security of individuals.
The “Promotion of Freedom Act” was enacted in 1991 to ensure the safety and freedom of individuals. Nevertheless, the “Promotion of Freedom Act” was vague, and it could be interpreted for the benefit of the regime, not the people. For instance, Article (8) states that “Every citizen shall have the right to publicly express his thoughts and opinions in People’s Congresses and Jamahiriyan (state of the masses) media”. However, Article (8) continues to read “The exercise of this right shall not be questioned unless it is exploited to prejudice the authority of the people for personal purposes.” The problem with this is that the only interpretation for the term the”authority of the people”was the authority of Gaddafi himself as “the leader of the people”.
In Article (14), the Promotion of Freedom Act states:
Human freedom may not be taken away or restricted. No human being may be searched or questioned unless accused of an act punishable by law and by order of the competent judicial entity in accordance with the cases and periods stipulated by law.
Preventive isolation shall be carried out in an identified place made known to the family of the accused. It shall last the minimum period required for investigation and preservation of evidence.
Article 17 of the Promotion of Freedom Act prohibits subjecting suspects to any form of physical or psychological torture, to cruel treatment or any act degrading to human dignity.It states:
“The accused is presumed innocent until proven guilty by a court order, however, legal proceedings may be taken against him as long as he is a suspect. The suspect shall not be subjected to any form of physical or psychological torture or to cruel treatment or act degrading to human dignity.”
On the treatment of suspects and prisoners, the Decision of the General People’s Committee for Justice regarding the Regulations of Correction and Rehabilitation Institutions were issued in 2005. The said Regulations considers prisons as places of rehabilitation and not punishment, as it states that:
“Correction and rehabilitation institutions are places of reform and education aimed at evaluating the behavior of those sentenced to criminal penalties for deprivation of liberty and qualifying them to be good members of society.”
Gaddafi instituted a prize for human rights and naturally named it “Gaddafi International Prize for Human Rights”awarded annually for persons or organizations believed by an international committee to be a champion of human rights for that year. Gaddafi made an initial grant,and the Swiss-based foundation North-South XXI was created by Gaddafi’s regime in 1989 to administerthe prize donation. Some of the winners of the prize are Nelson Mandela, Louis Farrakhan, Fidel Castro, and Hugo Chávez.
Basic Rights Granted by Law
Libyan law has granted the rights of individuals during the arrest and after sentencing under the following:
Collection of Evidence and Arrests
Article 13 of the Criminal Procedure Law provides that judicial officers, whose roles and responsibilities are defined under the aforementioned article, are responsible for the collection of evidence and the arrest of suspects. Contrary to what is stated under Article 13, officers and staff of the External Security during Gaddafi and the members of the present various militias and military personnel are not judicial officers and therefore do not benefit from the rights granted under Article 13 of the Criminal Procedure Law.
Issuing Arrest Warrants
Article 25 of Criminal Procedure Law states that arrest warrants are issued by the judicial officers, those who are identified in Article 13 of the Criminal Procedure Law. The majority of arrests are conducted without obtaining any arrest warrants and executed by non-judicial officers.
Investigation of Offenses
Investigation of offenses during Gaddafi-era depended on the nature of the offense. Non-political offenses were to be conducted in accordance with Article 26 of the Libyan Criminal Procedure Law (“Criminal Procedure Law”). If the public prosecutor during the investigation and prior to the end of 24-hour temporary custody concludes that there is not enough evidence to support the accusation of a crime, the public prosecutor should order the release of the suspect. Otherwise, the suspect should be charged accordingly.
On the other hand, during Gaddafi-era, any investigation involving “political offenses” should have been conducted in accordance with Article 22 of Law no. 5/1988 establishing the Peoples’ Court.
The initial investigation of a crime should commence immediately after the arrest of the suspect, and a judicial officer must be the first to conduct the initial investigation. The initial investigation consists of presenting the charges and questioning the suspect. If the suspect shows evidence to support their innocence and if there are no grounds for criminal charges, the judicial officer must order the suspect’s release. Otherwise, the suspect should be transferred to the prosecutor’s office within 48 hours of her/his arrest. The public prosecutor must question the suspect within 24 hours of custody. Article 26 of the Criminal Procedure Law requires that the public prospector should either order the detention of the suspect or release the suspect within the 24 hours of being held in custody.
In addition, Article 121 of the Criminal Procedure Law gives the suspect the right to consult a lawyer as by stating:
“the suspect, during investigation, should be isolated from other prisoners and deprived of visitation rights. However, the suspect should maintain a right to contact his/her lawyer without the presence of others.”
The majority of people, if not all, who were arrested during and after Gaddafi-era for political reasons were not arrested and questioned by the proper authorities in accordance with Articles 24, 25 and 26 of the Criminal Procedure Law and Article 22 of Law no. 5/1988 establishing the Peoples’ Court, while Article 30 of the Criminal Procedure Law which states:
“Legitimacy of Arrest: No one shall be arrested or detained except by order of the competent authorities.”
The competent authorities, as per the Libyan law in regards to arrest of suspects in criminal cases, are listed in Article 13 of the Criminal Procedure Law which does not list the Libyan External Security during Gaddafi, or the contemporary militias’ members, as a proper authority granted the right to arrest suspects.
Unfortunately, during Gaddafi, hundreds if not thousands of individuals were detained for many years after the “initial investigation”without any charges…the same practices continue.
Detention as Per the Rules of the Peoples’ Court
The Peoples” Court was an emergency tribunal established to try suspects accused of committing political, economic, and national security-related crimes. It was infamous for its arbitrary decisions and the lack of independence of its judges. The judges and staff were politically indoctrinated, and their loyalty was to Gaddafi and his ideology compiled in his Green Book.
Article 22 of Law no. 5/1988 states that a member of the Peoples’ Prosecution Office who appears before the People’ Court may order the temporary detention of a suspect for a period that shall not exceed a maximum of six days. If more time is needed to question the suspect, approval must be obtained from the head of the People’ Prosecution Office. After the People’s Prosecution Office approves, the detention of the suspect will be extended for an additional 45 days.
If the head of the Peoples’ Prosecution Office requires more time to conclude the investigation, the suspect’s file must be brought before the Peoples’ Court, where the court shall decide whether to extend the detention period or to release the suspect. The People’s Court may rule in favor of extending the detention multiple times. However, the sum of all of the extension periods shall not exceed a total of 90 days. Therefore, the maximum period to detain a suspect in order to conclude an investigation is 141 days (6 days at the discretion of a member of the Peoples’ Prosecution Office, 45 days extension based on the decision of the head of the Peoples’ Prosecution Office, and 90 days if the People’s Court rules in favor of extending the period of detention).
Torture and Mistreatment
According to Libyan laws, torture and mistreatment are not permitted. Article 17 of the Promotion of Freedom Act (Law 20/1991) states that:
“The accused is presumed innocent until proven guilty by a court order, however legal proceedings may be taken against him as long as he is a suspect. The suspect shall not be subjected to any form of physical or psychological torture or to cruel treatment or act degrading to human dignity.”
Article 14 of the Promotion of Freedom Act (Law 20/1991) states that:
“No one shall be deprived or restricted in his freedom, searched or interrogated unless he is suspected of committing an act punishable by law and by order of a competent judicial authority and in the circumstances and periods specified in the law. The temporary isolation shall be in a known place notified to the accused and for the shortest period necessary for investigation and evidence preservation.”
Article 1 of the Decision of the General People’s Committee for Justice Regarding the Executive Regulations of the Reform Institutions Law 2005 considers prisons as a place of rehabilitation and not punishment, as it states that:
“Correction and rehabilitation institutions are places of reform and education aimed at evaluating the behavior of those sentenced to criminal penalties for deprivation of liberty and qualifying them to be good members of society.”
The Libyan prison regulations have no rules pertaining to solitary confinement. However, forthe housing of certain types of prisoners, Article 106 of the Decision of the General People’s Committee for Justice Regarding the Executive Regulations of the Reform Institutions Law 2005 states that:
“Detainees who are known to be homosexuals, escapees, rioters, bullies, or assaulting others should be put in single rooms.”
Right to Receive Medical Care
All prisoners within Libyan prisons are entitled to receive medical care. Article 104 of the Decision of the General People’s Committee for Justice in the Executive Regulations of the Reform Institutions Law 2005 states that:
“A doctor visits daily the prisoners in isolation* and those sentenced to death and orders what he deems appropriate to maintain their public health.”
*Isolation refers to those detained temporarily with others for investigation and isolated from prisoners who have already been sentenced.
Right to Consult an Attorney
Article 121 of the Criminal Procedure Law states that, while held for the initial investigation for the charges against them, a suspect should be isolated from other prisoners and deprived of any visitation rights. However, the suspect should maintain the right to contact his/her lawyer outside of the presence of others.
Right to Visitation
According to Articles 127 and 129 of the Decision of the General People’s Committee for Justice Regarding the Executive Regulations of the Reform Institutions Law 2005, a is entitled to receive visitors once a week for the period awaiting trial and once a month after he was sentenced. He was also entitled to be visited by his agent if he had one, both prior and after his conviction. In the context of the law, an agent is a person who looks after the financial and business activities of the prisoner.
In summary, Libyan laws and regulations grant various rights of suspects and prisoners, as demonstrated above. In addition, Libyan laws follow proper procedures and ensure that individuals are not deprived of their lives, liberty, or property without due process of law. Certain types of officials are named in the Criminal Procedure Law under Articles 13 and 25 who are responsible for the collection of evidence and issuing of arrest warrants. Therefore, no one who is not defined by law should be allowed to arrest suspects.
Human Rights in Practice
Human Rights in Practice under Gaddafi
As we discovered in theory, Gaddafi’s regime could be considered the vanguard of human rights advocates. However, in practice, Gaddafi and his henchmen were bluntly brutal in eliminating opponents and violating human rights.Gaddafi’s regime practices in human rights were in clear violation of the laws that Gaddafi had enacted andin violation of international laws and international guidelines.
From the early days and until the last days of Gaddafi’s regime, human rights were violated.One of the first significant human rights abuses in Libya was the aftermath of Gaddafi’s speech in April 1973 launching what he called the “cultural revolution.” Books were burned, western musical instruments were smashed during public gatherings, and those who had different ideas from Gaddafi were imprisoned. In the early 1970s, many Libyan students were imprisoned and tortured for their attempt to establish independent student unions. Although laws regulating prisons and prisoner rights were enacted in Libya, the Libyan prison authorities had no intention of respecting the rules set forth in the statutes, and prisoners’ rights guaranteed by laws were not ensured, specifically in the case of political prisoners. During the 1970’s and the 1980’s political prisoners were allowed visitation by relative once every three months. Those prisoners who were held in solitary confinement were denied of the right to communicate with theoutside world, including communicating with their families.
Physical Elimination of Descendants
In the 1980’s elimination of opponents who merely voiced their opinions was not limited to those Libyan’s who were in Libya but reached those residing outside Libya. Businessmen, professionals, and students were assassinated in the streets of European cities. Between 1980 and 1996, Gaddafi’s assassination squads killed around 33 and wounded 19 Libyans outside Libya. The arbitrary arrest of individuals by unauthorized personnel was a common practice.
Kidnapping of Descendants
It is ironic despite the presence of laws protecting the rights of individuals and ratification of international and regional treaties such as the Riyadh Arab Judicial Cooperation Treaty (1983), opponents were kidnapped from other countriesand brought to Libya to be imprisoned and killed without trial. Various opponents were kidnapped from signatories to the said treaty with the assistance of governments of the signatories.
Gaddafi’s henchmen kidnapped many political opponents to Gaddafi’s regime. One of the prominent victims of such unlawful practices was Mr. Mansour Rashid Kikhia. Mr. Kikhia was a carrier diplomat prior to the rise of Gaddafi in 1969, and during Gaddafi’s Era he held the positions of the Libyan Minister of Foreign Affairs, Libyan Ambassador to the United Nations, Permanent Libyan Representative to the United Nations.
In the 1980’s, Mr. Kikhia became a leading figure oppositionto Gaddafi and an internationally well-known human rights activist. He founded the Libyan Human Rights Association in 1984. Two years later, he established the Libyan National Alliance and was elected as Secretary-General.
There have been investigations that led to the conclusion that Kikhia was kidnapped by the Egyptian security services and handed over to the Libyans in Cairo. Later, Kikhia was transported to Libya by land. He was later killed or died due to his illness and lack of medicine.Kikhia’s body was discovered in October 2012 inside a refrigerator of a villa in Tripoli belonging to the former military intelligence.Khikia was provided a state funeral in Benghazi and memorial service in his honor on December 3, 2012.
Another victim of kidnapping by Gaddafi’s regime, with the assistance of M16 and the CIA, is the abduction,and the rendition to Libya of Mr. Abdel Hakim Belhaj and his wife, Fatima Boudchar. His abduction was planned and initiated by the British intelligence the MI6 and carried out by the CIA. After the fall of Gaddafi in 2011, files found in the office of Moussa Koussa, who was Gaddafi’s intelligence chief, showed how Sir Mark Allen, the MI6 senior official, approached his Libyan counterpart Moussa Koussa, to work with Britain.
Mr.Belhaj and other Islamist Libyans who had fought in Afghanistan against Soviet forces in the 1980s formed the Libyan Islamic Fighting Group (LIFG) in 1990, an armed group opposing the Gaddafi’s regieme and led by Mr. Belhaj.The LIFG waged three-year insurgency limited to a geographical area and involved small scale operations. It also claimed to carry out three attempts to assassinate Gaddafi in 1990’s. After the LIFG was defeated in the late 1990’s, most of its leaders fled to Sudan and Afghanistan. During his travel to Africa and Asia, Mr.Belhajwas using the pseudo name of Abu Abdullah al-Sadiq.
Sir Mark Allen,in early October 2001, sent a fax to Moussa Koussa, proposing a “joint penetration operation” against the LIFG.
In mid to late February 2004 Mr.Belhajtried to take a commercial flight from Beijing to London. His wife, Ms. Boudchar was approximately four months pregnant at the time. Mr.Belhaj and his wife were detained in Beijing airport and deported to Kuala Lumpur, where they were detained again for approximately two weeks. Later, Mr. Belhaj and his wife were put on a flight from Kuala Lumpur to London. However, the plane stopped in Bangkok, where they were escorted off the plane. Mr. Belhaj and his wife were blindfolded and detained in Thailand.
The U.S. agents tortured Mr. Belhaj in Thailand. The couple were hooded and shackled and flownflown on an American plane to Libya and handed over to the Libyan authorities. Ms.Boudchar was held in a Libyan prison, and a few months later, she was released due to her pregnancy. Mr. Belahj was tortured by Libyan officials and investigated by both MI6 and the CIA. In 2010, the Libyan authorities released hundreds of prisoners on condition to denounce the use of force against the Libyan state.
On 18 March 2004, Sir Mark Allen of Ml6 sent a letter to Moussa Koussa, congratulating him on the successful rendition of Mr.Belhaj. Sir Mark Allen said:
“Most importantly, I congratulate you on the safe arrival of Abu Abdullah al-Sadiq. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years. I am so glad. I was grateful for you for helping the office we sent out last week. Abu Abdullah’s information on the situation in this country is of urgent importance to us. Amusingly, we got a request from the Americans to channel requests for information from Abu Abdullah through the Americans. I have no intention of doing any such thing. The intelligenceon Abu Abdullah was British. I know I did not pay for the air cargo (referring to Belhaj and his wife). But I feel I have the right to dealwith you direct on this and am very grateful to you for the help you are giving us.” Emphasis added.
In December 2011, Belhajd begun legal proceedings against the British government over its role in his rendition to Libya, including Jack Straw and Sir Mark Allen. In 2018,.On 10 May 2018 the parties reached a settlement. Theresa May has personally apologised Mr. Belhaj and his wife for the “appalling treatment” they suffered as a result of their rendition.
On 17 November 2008, the U.K. and Libya signed a Treaty on Extradition. The irony of the said treaty, after the brutal rendition of Belhaj and his wife, lies within its Article 4 Refusal of (f) which gives a party to the treaty the refusal to extradite an individual “where the extradition would breach the international principles of human rights”.
As for the case of Mr. Mansour Rashid Kikhia whose crime was expressing his opinion on the political affairs of Libya, Gaddafi’s regime should have followed its laws to charge and arrest Mr. Kikhia. According to Libyan laws, if a suspect is wanted for crimes in Libya and he is located in a third country, Libya is required to follow whatever procedural steps it had agreed to with the third country in an international agreement. This rule reflects international standards and procedures followed by other countries.
Consequently, Gaddafi’s regime should have filed for the extradition of Mr. Kikhia from Egypt by invoking Article 6 of the Riyadh Arab Judicial Cooperation Treaty (1983) by submitting all related judicial documents to the Ministry of Justice of Egypt instead of kidnapping his with the help of the Egyptian government.
Massacre of Abu Sleam Prison
Abu Sleam prison was packed with prisoners, many of whom were held without trials for years. Even though the Libyan law guaranteed specific prison standards and met the UN Standard Minimum Rules for the Treatment of Prisoners, Libyan prisons were below any reasonable standards. Prison cells were overcrowded and lacked ventilation. The food served was inadequate and lacked nutrition. Moreover, medical care was provided sometimes when the prisoner reaches a critical stage of his illness. Otherwise, an ill prisoner is expected by the prison authority to cope with his illness.
Due to the unbearable harsh prison conditions and the feeling of the absence of justice, the prisoners on theevening of June 28, 1996, protested and captured two guards, one of whom died. Guards opened fire, killing six prisoners and wounding about 20.
The government sent its officials, headed by Gaddafi’s brother-in-law and intelligence chief, Abdullah Sanussi, to end the strike. During the negotiations, the prisoners’ demands were to commence trials for prisoners, stop to torture, and improved food, health care, and family visits. Abdullah Sanussi agreed to all of the prisoners’ demands except commencing the trials of prisoners.
The next morning, the prison guards brought thousands of prisoners to the courtyard and opened fire. According to eyewitness accounts from Abu Sleam prison, after the fall of Gaddafi, the shooting lasted for two hours. The guards who were positioned on the roof of the prison used hand grenades, Kalashnikov rifles, and other automatic machine guns. The result was 1269 dead prisoners.
According to investigations with those involved, conducted after the fall of Gaddafi’s regime, they confirmed that the bodies were excavated after several years and the bones were crushed and broken and set fire to them for three days under a high temperature before their ashes were thrown into the sea after that.The bodies were buried in mass graves.
While Gaddafi’s regime offered to pay around 25,000 US dollars for each victim of the massacre of Abu Sleamprison, the country’s foreign minister, Abdel Rahman Shalgham in April 2003, as reported in the African magazine the Mail Guardian, said that Libya has paid $10 million to each of the 270 victims of the 1988 Lockerbie airliner bombing after accepting civil responsibility for the blast. He also added, “My country has accepted civil responsibility for the actions of its officials in the Lockerbie affair, in conformity with international civil law and the agreement reached in London in March by Libyan, American and British officials.”
Human Rights After Gaddafi
The removal of Gaddafi and his cronies did not bring an end to the abuse of human rights in Libya. Libyans might have deposed Gaddafi and his regime but the culture of torture, physical elimination of opponents and embezzlement of public funds and seizing public property, a culture that was nourished by Gaddafi for more than four decades, is still in persistence. This culture of ignorance and brutality is a result of forty-two years of absence of the rule of law. During this dark period of Libya’s history, all fundamental political rights were suspended. The right to assembly and freedom of speech were outlawed. Consequently, when Gaddafi’s regime collapsed, there was no political foundation to build on it a new political structure. The result is chaos and implementation of the first law of nature among the majority of Libyans…self-preservation.
Various armed groups throughout Libya are committing grave violations of rights of innocent Libyan and non-Libyan individuals. Secret and publicly known locations are filled with humans who were subjected to arbitrary detention and torture without any consideration to the due process of the law. Individuals are held in facilities that lack the essential requirement to be approved as living places. The rooms were overcrowded, without windows and lacked basic hygiene such as clean toilets, clean and enough beds, and bedsheets. Depriving detainees of medical care and lack of nutritious and sufficient food are standard practices.
No one can argue that there is only one political or armed group that could be accused of violating human rights in Libya. The “Libyan Army” in the eastern part, headed by Khalifa Haftar has committed numerous violations of human rights that trigged international condemnations and issuing an arrest warrant by the International Criminal Court. Meanwhile, certain militia groups in the western part of Libya, that have gained the acceptance and support of the Government of National Accord headed by Al Saraj in Tripoli are as much guilty as their counterparts in the eastern part of the country.
Dr. Mohamed Karbal is licensed to practice law in Libya, New York, and Washington D.C. and served as an expert witness on Libyan law on behalf of Claimant in Belhaj and another v Straw and others. Karbal & Co is a full-service international law firm that serves the needs of businesses and governments in Libya and Washington D.C.