Beirut — Libyan authorities should immediately cancel the impending trial of the former National Transitional Council chairman Mustafa Abdeljalil in front of a military court.
Libyan authorities should amend the law to prohibit trying civilians before military courts and should include a guarantee in the constitution not to try civilians in Military Courts, Human Rights Watch said.
Abdeljalil's trial should be transferred to a civilian court if there is credible proof of wrongdoing, Human Rights Watch said.
On December 11, 2012, a military court in Benghazi charged Abdeljalil in connection with the killing of the former commander of the anti-Gaddafi forces, General Abdelfatah Younis, who was assassinated in Benghazi on July 28, 2011. The current status of the case is unclear with some reports that the case was transferred to the Supreme Military Court.
"Dragging civilians in front of a military tribunal clearly violates international law and sets a dangerous precedent forLibya's civilian justice system," said Joe Stork, Middle East and North Africa deputy director at Human Rights Watch.
On December 19, Justice Minister Salah Marghani announced that the ministry would propose amending the law to prevent civilians from being tried before military courts. "Abduljalil is a civilian and the new law will apply to him," Marghani was reported as saying. "His case will be transferred to a civilian court with all the guarantees of fair justice."
"This is excellent news from the justice ministry," Stork said. "In the meantime, the case against Abdeljalil should either be dropped or transferred to a civilian court."
Libya should also amend its code of military justice to restrict military court jurisdiction to military personnel charged with offenses of an exclusively military nature, Human Rights Watch said.
Abdeljalil was charged after he was summoned for questioning by the military prosecutor investigating the killing of General Younis. The charges against him include "undermining national unity" and "abuse of power."
Trials of civilians before military courts violate the African Charter on Human and Peoples' Rights (ACHPR). Such proceedings often do not satisfy the requirements of judicial independence and impartiality and violate the due process guarantees in article 14 of the International Covenant on Civil and Political Rights, which affirms that everyone has the right to be tried by a competent, independent, and impartial tribunal.
The ACHPR, to which Libya is a state party, further holds, in article 26, "that state parties...shall have the duty to guarantee the independence of the courts." The African Commission on Human and Peoples' Rights, the body created to monitor the implementation of the ACHPR, elaborated on these rights in its principles and guidelines on the right to a fair trial. "The only purpose of military courts shall be to determine offenses of a purely military nature committed by military personnel," the African Commission wrote. "Military courts should not, in any circumstances whatsoever, have jurisdiction over civilians."