15 June 2017

Libya: Surrender Saif Al-Islam Gaddafi to ICC

Beirut — The authorities vying for legitimacy as Libya's government should take all feasible steps to facilitate the surrender Saif al-Islam Gaddafi, a son of Muammar Gaddafi, to the International Criminal Court (ICC), Human Rights Watch said today. Independent international observers have not seen or heard from Gaddafi since June 2014, and do not know his current whereabouts.

The now disbanded Abu Baker al-Siddiq Brigade, which had been holding him in an unknown location in the western town of Zintan, said in an online statement on June 10, 2017, that it had released Saif al-Islam Gaddafi on June 9, citing an amnesty law passed by Libya's parliament. Gaddafi is subject to an ICC arrest warrant to answer allegations of crimes against humanity in an investigation authorized by United Nations Security Council Resolution 1970.

"The reported release of Gaddafi based on a flawed amnesty law does not change the fact that he is wanted by the ICC for crimes against humanity," said Richard Dicker, International Justice director at Human Rights Watch. "The Zintan brigade, which alleges that it released him, should urgently disclose his current whereabouts."

The unanimous Security Council resolution requires the cooperation of Libyan authorities with any ICC investigation, including the surrender of suspects. Gaddafi is wanted by the ICC for his alleged role in attacks on civilians, including peaceful demonstrators, during the country's 2011 uprising. On June 14, the ICC prosecutor, Fatou Bensouda, issued a statement calling for Gaddafi's immediate arrest and surrender.

The Abu Baker al-Siddiq Brigade had held Gaddafi in Zintan since capturing him during his attempted escape from the country in November 2011. The Brigade is allied with the Interim Government, one of three authorities vying for legitimacy in Libya, and the Libyan National Army forces in eastern Libya. In April 2016, the Interim Government ordered Gaddafi's release based on the amnesty law. Human Rights Watch was unable to reach either the Zintan brigade or representatives of the Interim Government for comment.

The Brigade held Gaddafi incommunicado and subjected him to solitary confinement for long periods, which amounts to torture. In January 2014, Human Rights Watch interviewed Gaddafi in an office at a base in Zintan. During the visit, Gaddafi said that he had not had access to a lawyer of his choosing and had been interrogated a number of times without legal counsel. The UN Working Group on Arbitrary Detention concluded in November 2013 that Gaddafi's detention was arbitrary.

An official from the UN-backed Government of National Accord (GNA), headed by the Tripoli-based Presidency Council, told Human Rights Watch that the Presidency Council had no information on Gaddafi's current whereabouts. A June 12 news report quoting the Interim Government's deputy justice minister, stated that the ministry did not have "accurate and official information about the release of Gaddafi's son or not." Separately, on June 11, the Zintan municipal and military councils condemned Gaddafi's release.

Although it never had custody of him, Tripoli's Court of Assize put Gaddafi on trial in Libya in March 2014, along with 36 other former Gaddafi officials and employees, on charges of serious crimes during the February 17 revolution that led to the overthrow of Muammar Gaddafi. The authorities established a closed-circuit video link to enable Gaddafi to participate from Zintan, but he was only able to join for 4 of the 25 trial sessions, according to the UN. The court convicted and sentenced him to death in absentia on July 28, 2015. Al-Siddiq al-Sur, the chief prosecutor in the case, said that Gaddafi would have the right to a retrial once he was in the custody of the authorities in Tripoli.

The trial, which convicted 32 other Gaddafi-era officials, was undermined by serious due process violations including lack of meaningful legal representation for defendants, repeated violations of defendants' right to communicate with their lawyers in confidence, and no opportunity for defendants to question prosecution witnesses in court. In February 2017, the UN issued a comprehensive report that concluded the criminal proceeding against Gaddafi and others failed to meet international fair trial standards. The UN Working Group on Arbitrary Detention also concluded in its November 2013 opinion that the gravity of the due process violations in Gaddafi's case made it impossible to guarantee him a fair trial in Libya.

Following Gaddafi's in absentia conviction in July 2015, Libya's parliament passed a general amnesty law. The law stipulates that those who commit crimes of terrorism, rape, torture, corruption, and murder by race or ethnicity may not receive an amnesty. However, it fails to rule out amnesty for other serious human rights crimes, such as forced displacement, forced disappearances, and unlawful killings.

On June 11, 2017, the Tripoli-based acting General Prosecutor, Ibrahim Massoud, asserted that Gaddafi was wanted for a retrial and did not qualify for the amnesty, and that in any event, only judicial authorities were authorized to determine who met the criteria outlined in the amnesty law. Massoud also reiterated that Gaddafi was wanted by the ICC. Libyan law stipulates that if a defendant is convicted in absentia, a retrial is to take place once the defendant is apprehended.

The internationally-recognized Government of National Accord is struggling to assert control over the country's institutions and territory. In western Libya, it competes for control and legitimacy with another self-proclaimed authority, the Government of National Salvation. Libya's parliament supports a third authority, the Interim Government in the eastern town of al-Bayda, as well as the Libyan National Army forces under Khalifa Hiftar. The parliament has failed to confirm the GNA cabinet.

In May 2014, an ICC appeals chamber upheld an earlier decision rejecting Libya's bid to prosecute Gaddafi domestically. The court held that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC, a requirement under the ICC treaty for such challenges. The ICC also held that Libya was genuinely unable to carry out an investigation of Gaddafi.

Following Libya's failure to surrender Gaddafi to The Hague, ICC judges held in December 2014 that Libya had failed to cooperate with the court and forwarded their finding to the UN Security Council for follow-up. Though the Security Council has a range of options to encourage Libyan cooperation including resolutions, sanctions, and presidential statements, it has not formally acted. However, individual Security Council members have consistently stressed Libya's outstanding obligation to transfer Gaddafi to The Hague, including at the ICC prosecutor's last Libya briefing to the Council in May.

Al-Hadba Corrections Facility in Tripoli, where Gaddafi-era officials were being held pending an appeal of their conviction, was overrun on May 26 by the Tripoli Revolutionaries Brigade, an armed group under the command of Haitham al-Tajouri and allied with the GNA through the Interior Ministry. The Tripoli Revolutionaries Brigade moved the detainees - including Abdullah Sanussi, the Gaddafi era intelligence chief, former prime minister and former head of foreign intelligence Abuzeid Dorda, and al-Saadi Gaddafi, a brother of Saif al-Islam - to an undisclosed location, according to a family member of one of the detainees. But media reports said that Sanussi and other former Al-Hadba detainees were seen on June 12 in a Tripoli hotel controlled by al-Tajouri having a meal with family members and others.

In April 2017, the ICC unsealed a separate arrest warrant issued in 2013 for the former head of Muammar Gaddafi's Internal Security Agency, Mohamed Khaled Al-Tuhamy, for crimes against humanity and war crimes committed in Libya between February-August 2011. His whereabouts remain unknown.

While the ICC has a mandate over crimes against humanity, war crimes, and genocide committed in Libya since February 15, 2011, the ICC prosecutor's cases remain limited to officials from the former Gaddafi government. Human Rights Watch research in Libya since 2011 has shown rampant ongoing violations of international law, including mass long-term arbitrary detentions, torture, forced displacement, and unlawful killings. In the face of mounting atrocities, Human Rights Watch has called on the ICC prosecutor to urgently pursue an investigation into the ongoing crimes by all sides, some of which may amount to crimes against humanity.

In May, Bensouda said her office was examining the "feasibility" of opening an investigation into migrant-related crimes should the ICC's jurisdictional requirements be met, and was committed to making the Libya situation a priority in 2017. Given the serious crimes committed in Libya and the challenges facing the authorities, the ICC's mandate remains essential to ending impunity in Libya, Human Rights Watch said.

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