The Libyan Migrant Route: Torture on Land and Terror at Sea

Illustration by Raed Charaf

Legal-agenda.com

 Any observer of the legislative affairs in the transitional phase in Libya can clearly notice a state of apparent confusion and randomness in the enactment of laws. Many laws are issued without careful study, significance, or knowing why they have been issued in the first place. Some are enacted out of the assumption that a number of existing laws need reform because they no longer correspond to the change that has taken place, or because they are based on Gaddafi’s ideas, or because it is assumed that certain laws constitute a quick means to achieve important goals, such as institutional development and transitional justice.[1] In this article, we will discuss transitional justice laws in Libya, especially in relation to amnesty laws for crimes including the most recent law promulgated by the House of Representatives in Tobruk in 2015.

The disturbances and the events that followed the revolution against the Gaddafi regime created an urgent need to apply the rules of transitional justice, including amnesty for certain crimes. Amnesty should be issued by a law; it should be public and justified by social interest, and it should aim to overcome the circumstantial status and to maintain the cohesion of society. However, one can notice that the amnesty laws enacted after 2012 were unilateral and rushed through without careful study or justifications as to the actual need for them.

Laws Enacted in 2012: Retaliatory Justic

In 2012, the first transitional authority at the time, the interim National Transitional Council (NTC) issued Law No. 35 on amnesty for crimes which excluded those committed by the spouse, sons and daughters, siblings in–law, and assistants of Muammar Gaddafi; border crimes when referred to the judiciary; and kidnapping, torture, and rape crimes. The aim of the law was to handle the repercussions of the armed conflict that erupted at the time of the revolution; a conflict that lasted eight months. The law was also enacted in order to deal with the aftereffect of the participation of civilians in the fight, in an attempt to help some of those with previous criminal convictions.

In the same context, and even on the same date, the NTC issued a new legislation: Law No. 38 of 2012 on some special procedures concerning the transitional phase. This law reinforced the concept of impunity and allowed those who had committed violations to get off the hook of accountability. Article 4 of this law reads: “There is no penalty for any military, security, or civil acts carried out by the revolutionaries, which were necessary to save or protect the 17 February Revolution.” Such a text opens the floodgates to impunity and gives a legal cover for a specific category of society, allowing them to commit violations without accountability. Moreover, the loose wording of the legal text renders it subject to different interpretations; thus making it easier to exploit and apply in various ways. Wahid Ferchichi, professor of law at the University of Tunis, stated that acknowledging the legitimacy of the rebels in criminal tracking processes represents a threat to the path of transitional justice, and that such acknowledgement may transform it into retaliatory justice.[2]

Laws Enacted in 2013: Comprehensive Transitional Justice to the Beat of Political Isolation
In a rectification effort, the second legislative power, the General National Congress (GNC) issued Law No. 29 of 2013 on transitional justice and national reconciliation. In this law, the concept of transitional justice would apply to some of the actions linked to the February 17  Revolution, including those under the banner of the NTC, specifically: “Positions and actions which led to ruptures in the social fabric; and acts which were necessary to protect the revolution and which were marred by some behaviors that did not adhere to its principles.” Thus, the law was not only limited to addressing the violations of the former regime.

However, just like other laws passed by the legislature, its effects remained relatively non–existent. On the one hand, the results of the investigations were not published despite the formation of a fact–finding body; and on the other hand, the legislature intended to empty this law of its content by issuing parallel laws that are supposed to be at the core of the transitional justice work. These laws had either already existed before the issuance of Law No. 29 of 2013 and paved the way for its failure, or were issued after, rendering it useless. For example, Law No. 13 of 2013 on political and administrative segregation was issued, dismissing holders of political and sovereign positions who had served under Gaddafi’s regime. This law caused a deep division in society, dividing it into two parts: one blessed and the other isolated. That matter should have been left to the clause on institutional reform, which is a fundamental pillar of transitional justice. Under institutional reform, the corrupt and abusers of the public fund shall be eliminated.

The 2015 Amnesty Law Issued by the Libyan Parliament and its Impact on Saif al–Islam Gaddafi
In 2014, the third transitional authority (House of Representatives) was elected. The council was held in Tobruk due to the constitutional crisis in the country, and the subsequent legal and military problems which ended with the division of the legislative and executive authorities in the east and the west.[3] The new House of Representatives was no different from its predecessors in terms of the absence of a legislative policy and the lack of vision, especially when Law No. 6 of 2015 on amnesty was issued. This law provides conditional amnesty for all Libyans who committed certain crimes during the period from February 15, 2011 until the date of issuance of the amnesty law, stipulating that criminal cases thereon shall lapse and the penalties shall drop.

Among the most prominent conditions set by the law for amnesty are: a written repentance pledge; return of the money which is the subject of the crime; reconciliation with the victim; turn–in of the weapons and tools used in committing the crime; and, restoration to the original state in cases of attack on real estate and movable property crimes. This law does not apply to all crimes, as Article 3 thereof excludes crimes of terrorism, drug dealing and trafficking, rape and honor crimes, murder for identity, kidnapping, torture, and border and corruption crimes. Moreover, this law has also been subject to criticism because it came at a time of political division and military conflict, when the entire transitional justice bill should have been redrafted and reactivated rather than issuing a highly controversial amnesty law.

The law gained great publicity and was largely addressed by the media six months after it was issued, particularly following reports of possibly applying it to Gaddafi’s son. Saif al–Islam Gaddafi was sentenced to death in absentia along with other former regime officials in Case No. 630–2012. The controversy escalated after the late minister of justice of the interim government[4] al–Mabrouk Graira issued a letter on April 10, 2016 ordering Zintan Prison warden to release Saif al–Islam because the conditions of amnesty apply to him.[5] This clearly reflects the state of political exploitation of this law: the minister of justice does not have the authority to address prisons and issue orders thereto, not to mention that law enforcement is the prerogative of the judiciary and public prosecution.

The charges against Saif al–Islam Gaddafi pertain to instigating civil war, abusing power, issuing orders to kill protesters, abusing public funds, and others. For these charges, he was sentenced to death by the Department of Tripoli Criminal Appeal Court on July 28, 2015 in Case No. 630–2012. The case was appealed before the Libyan Supreme Court and a decision is yet to be made.[6] Many international organizations (The United Nations Support Mission in Libya,[7] the Office of the High Commissioner for Human Rights, and others[8]) commented on the ruling stating that it did not observe the conditions of a fair trial, and the proceedings were flawed.[9]

Furthermore, the charges against Saif al–Islam are in fact crimes against humanity. Such charges have no statute of limitation and the general amnesty law does not apply thereto. Additionally, these charges are criminal acts under international conventions which are deemed more forceful compared to domestic legislation when the two conflict. That is exactly what happened when the Libyan Supreme Court decided on Constitutional Appeal No. 57/1, dated December 23, 2013. The court ruled that international conventions in which Libya is a party come into force immediately once signed and ratified by the legislative authority, and they prevail over domestic laws.

Moreover, Saif al–Islam is still wanted by the International Criminal Court (ICC). The amnesty law does not affect the ICC demand to put him on trial, nor does it apply to him[10].

From a local procedural angle, the conditions set forth in the law were not applied. The most prominent of these conditions include that the amnesty decision be taken by the judiciary; announcing repentance; returning the money; and, reconciling with the victim.

What is most striking is that the late minister, a former judge himself, did not take the legal measures stipulated in the text of the amnesty law, thus raising many questions. Moreover, the previously–mentioned ministerial letter sparked many reactions, reflecting the importance and sensitivity of Gaddafi’s son issue which extends beyond the legal aspect, carrying political and social dimensions. The first reaction was from al–Ajami al–Atiri, commander of the Abu–Bakr al–Siddiq Battalion in charge of Saif al–Islam’s detention, who emphasized the implementation of the orders in the letter and the release of Saif al–Islam as of April 12, 2016.[11]

Amid all this fuss, the Ministry of Justice released Statement No. 11, dated June 28, 2016 asserting, specially in light of the minister’s death, that the letter is not authentic and explaining that applying the conditions of amnesty is under the jurisdiction of the Libyan judiciary, and that the letter issued by the late minister of justice was riddled with legal mistakes. The Reform and Rehabilitation Institution in Zintan expressed its surprise at the statement of the Ministry of Justice, asserting the authenticity of the late minister’s letter.[12]

All that controversy prompted the three military, municipal, and social councils of Zintan city to respond on July 8, 2016 to this ministerial letter, and its repercussions and the confusion it had caused. They asserted that the defendant was still in custody and that his release would be in accordance with the legal procedures that uphold his rights and those of the people, for the sake of  justice.[13] Saif al–Islam’s lawyer Khaled al–Zaydi confirmed that his client benefited from the amnesty which was applied to his case, and that the ICC does not have the right to demand to put his client on trial after he had already been tried for the same charges in Libya in the infamous Case No. 630–2012,  known as the symbols of the regime trial.[14] Saif al–Islam’s second lawyer Karim Khan stated the same with regard to the amnesty law.[15]

The letter of the minister of justice has exposed an issue far larger than Saif al–Islam’s. The latter was administered behind the scenes and actually illustrated that there were social and political actors seeking his release. The multiple and contradictory correspondence shows just how sensitive and important this case is. There was a lot of confusion and astonishment which prompted some observers to speculate that the ministerial letter on amnesty was authentic, and interpreted the positions of refutation and denial as fear of the political consequences of the decision to free Saif al–Islam.[16]

The irony is that the law was declared by the House of Representatives in the east, while Saif al–Islam was being held in a west region prison located in a city whose prevalent political are not in alignment with those of the capital. It is noteworthy that the executive and judicial authorities of the capital were not able to bring the accused to appear before the court. To solve this, the legislator had to amend Articles 241/243 of the Code of Criminal Procedure in order to allow the defendant to be present, by linking the courtroom to the Zintan prison on television via a video link. The apparent reasoning behind the amendment is fear for the safety of the defendant during movement between the two cities because of the security situation, when in reality, the issue is far larger than this.

Amidst the correspondence and comments on the minister’s letter, Chief Prosecutor of Zintan stressed his rejection of the letter for lack of jurisdiction, demanding that the minister address the Public Prosecutor to refer the request to the Supreme Court pursuant to Article 385 of the Code of Criminal Procedure.

The inconsistency and controversy were not only within the judicial and executive authorities; even the political authority interfered. On July 10, 2016, the Presidential Council issued a statement denouncing the battalion commander’s response and praising the position of the municipal, military, and social council of the Zintan city. The Presidential Council also underlined the need for the administration of criminal justice, and expressed its readiness to cooperate with international organizations in this regard.

Saif al–Islam’s case is a perfect example of the floundering of those who took the reins after the February revolution. Sometimes, their perspective is about the administration of justice and the realization of the Libyan people’s aspirations of prosecuting the perpetrators and holding them accountable; and other times it is about national reconciliation and reunification, renouncing hatred and the causes of fight, and overcoming the past. Even dealing with the ICC has been contradictory; at times we ask that ICC prosecute the perpetrators for our judiciary is incompetent, and at other times we demand the ICC have respect for our sovereignty, law and internal judiciary.

The penal laws also lose their value and efficacy under transitional justice laws. Since 2012, once issued, they are amended and repealed, not to mention the transitional procedures section provided for in the draft Constitution.

This confusion is not merely legal, but is primarily political. After the February revolution, the successive authorities have dealt with the issue in different ways. At the time of the NTC and the National Conference, the issue of Gaddafi’s son was propagated as a criminal whose victim is an entire nation, but during the rule of the House of Representatives, he was viewed as a victim of political and military abuse that violates the law and human rights. This explains the adjustment of priorities: while the priority for the NTC and the National Conference was to bring the symbols of the former regime to justice, reconciliation with that regime has become the priority for the House of Representatives.

There is no doubt that military balance [of power] has an impact on the political path and affects the laws issued under the political visions of the legislative authority. Lawyer Wissam al–Sagheer explains this, stating that the amnesty law came as a response from the House of Representatives to the death and life imprisonment ruling by the Tripoli Criminal Court on Saif al–Islam Gaddafi, Abdullah al–Senussi, and others.[17]

The issue of Saif al–Islam Gaddafi has exposed the state’s fragility, weakness, contradiction, and lack of control. His case has clearly shown that the duality of political power and the division of the legislative authority will, over time, lead to the collapse of the state.

Finally, amnesty laws are part of the transitional justice bill, and if the legislature wants to apply these laws, they need to have the appropriate mechanisms to do so, such as open dialogue, a participatory spirit, transparency, inclusion, and acceptance of others.

This article is an edited translation from Arabic.

[1] See: Suliman Ibrahim’s, “Sinaʿat al-Tashriʿat Baʿda Fatrat al-Qadhafi”, The Legal Agenda – Tunisia, Issue No. 1.
[2] Guidebook of Transitional Justice in Libya, the Arab Institute for Human Rights publications.
[3] The House of Representatives was held in Tobruk, with its government in al-Bayda’, and the National Conference, with its government in Tripoli.
[4] The interim government is based in al-Bayda’ and under the House of Representatives held in Tobruk.
[5] See: http://almnatiq.net/266870/
[6] See: http://alwasat.LY
[7] See: http://unsmil.unmissions.org
[8] See: http://www.ohchr.org
[9] The websites of the HRW and the International Commission of Jurists.
[10] The first Pre-Trial Chamber: A decision on Libya not responding to two requests for cooperation addressed by the court, and referring the issue to the United Nations Security Council, February 27, 2015, Document ICC-01/11-01/ 11-577-tARB; also, see: The first Pre-Trial Chamber: A decision on the admissibility of the case of Saif al-Islam Gaddafi, Document ICC-01/11-01/11-344-Red on May 31, 2013; and, the Appeals Chamber, a ruling on Libya’s appeal to the decision of the Pre-Trial Chamber on May 31, 2013 entitled: Decision on the Admissibility of Saif al-Islam Gaddafi’s Case, May 21, 2014, Document ICC-01/11-01/11-547-Red-tARB.
[11] See: http://www.akhbaralaan.net/news/arab-
[12] See: http://www.libya24.tv/news/44515
[13] See: http://www.libyaschannel.com
[14] See: http://www.eda2a.com/
[15] See: http://www.innfrad.com/News
[16] An investigation by writer Muna al-Mahrouqi; can be found at: http://alarab.co.uk/?id=84234
[17] An interview on the Libyan satellite channel Alnabaa TV.