New York — Libya's new government, sworn in on November 14, 2012, should put the illegal detention of more than 8,000 people atop its agenda.
About 4,000 detainees are in government custody, most without formal charges or access to a lawyer, and the rest are held outside government control by various armed groups who have no legal authority to detain anyone.
"The new government can start on the right foot by addressing the detainee crisis," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "It has an opportunity and an obligation to review thousands of cases with a newfound respect for justice and the rule of law."
The new government is headed by Prime Minister Ali Zeidan, a former human rights activist, who has spoken publicly about the need for reconciliation and the rule of law. The new justice minister, Salah Marghani, is a longtime human rights lawyer.
Addressing the detainee crisis will require political will and a coordinated effort by the Justice, Interior and Defense Ministries, as well as the General Prosecutor's Office, Human Rights Watch said.
Zeidan told Human Rights Watch that his government is guided by human rights principles and he will confront illegal activities by armed groups, including arbitrary detentions and extrajudicial killings.
"I take full responsibility for the safety and security of all Libyans equally, including those who sided with the former regime and their families," he said. "The rule of law must be our source of justice. Human rights is a priority for this newly elected government."
The new government should support those claims by bringing all detainees in its custody promptly before a judge and giving them access to a lawyer, Human Rights Watch said. If there is sufficient evidence, the person should be charged with a criminal offense. If not, the person should be released.
Armed groups, who have no legal authority to detain, should be required to hand over all their detainees to state authorities or release them, Human Rights Watch said. Armed groups who refuse to do so and continue to detain people unlawfully should be investigated and prosecuted for unlawful deprivation of liberty.
The precise number of detainees in government and militia custody remains unclear. The Justice Ministry is holding at least 3,000 people. An estimated 3,000 detainees are being held by a multitude of armed groups. Another 2,000 people are being held by either the Defense Ministry or the Supreme Security Committee, a quasi-official body of former anti-Gaddafi fighters that is cooperating with the Interior Ministry.
Most detainees held by the government and armed groups are former security force members of the Gaddafi government, former government officials, suspected Gaddafi loyalists, suspected foreign fighters, or migrants from sub-Saharan Africa. The vast majority are male. Many have been in custody for more than one year.
Since the fall of Muammar Gaddafi in July 2011, successive transitional governments have struggled to bring their detainees before a judge and to gain custody of detainees held by armed groups. Libya's heavily armed militias far outnumber the formal armed forces. Some militias have formed working relations with the official forces.
The National Army relies on a grouping of militias aligned with the government called Libya Shield, which the government has deployed in tribal and regional disputes. The Interior Ministry and its police force rely on the Supreme Security Committee.
Between April 2011 and July 2012 Human Rights Watch visited and privately interviewed detainees in facilities operated both by government agencies and armed groups. In government-run facilities, only a small number of detainees had been brought before a judge, had been formally charged, or had cases that had been reviewed by a court.
A law passed in May, Some Procedures for the Transitional Period, said the Interior and Defense Ministries are responsible for transferring "supporters of the former regime" held by armed groups to the competent judicial authorities by July 1 if there was sufficient evidence against them.
More than four months after that deadline, few if any militia-held detainees have been transferred to state custody.
Cases of deaths in custody in facilities controlled by armed groups have occurred throughout the year. In August, members of the Misrata Supreme Security Committee removed 32-year-old Tareq Milad Youssef Arrefai from the Al Wahda school, a detention facility officially under the Justice Ministry, for questioning. He never returned. According to a death certificate obtained by Human Rights Watch, Arrefai died in Misrata on August 18, 2012, due to "beating with heavy blunt objects on various parts of the body, head and extremities." The Misrata prosecutor started an investigation but, to date, no arrests have been made.
In May, the United Nations Mission in Libya called on the authorities to investigate the deaths of three detainees on April 13 while in custody of the Supreme Security Committee at the Al Zaroug detention facility in Misrata. Human Rights Watch reported on the case of a diplomat who died under torture in February while in the custody of a Tripoli-based militia from Zintan, the Shohada Ashura militia.
Libya's Criminal Procedure Code says that only state authorities may order arrests or detention. Detainees may be held only in state institutions formally designated for the purpose, and only for the period of time specified in the relevant detention warrant.
Arbitrary detention is strictly prohibited under international law, including the International Covenant on Civil and Political Rights (ICCPR), to which Libya is a party. "Administrative" detention on the grounds of security, outside the criminal law, is only permitted under narrow circumstances in which there is a genuine and publicly declared state of emergency threatening the life of the nation, and the government has complied with various steps set out by the ICCPR and the United Nations Human Rights Committee.
Those include limiting rights only as strictly necessary to meet a particular emergency, and without overly broad or vague language, and a requirement for the government to show that the existing law, including the criminal law, is insufficient to address the emergency. Judicial review of detention may never be eliminated, even in an emergency.
Libya has taken none of the steps required under the ICCPR to derogate from these rights to justify the use of detention purely on "security" grounds, Human Rights Watch said.
"The new government should break with the past on illegal detention," Goldstein said. "This will show that the new leaders are putting their human rights commitments into practice."