5. Other Legal Matters The Commission notes that on 16 September, 2011 the United Nations General Assembly formally recognized the NTC as the interim Government of Libya.52 The Commission therefore considered the NTC and Libya’s interim Government as representing the successor state with respect to the country’s international human rights and humanitarian law treaty obligations.
A. The legacy of the Qadhafi Government It is not possible to understand the violence which occurred in Libya during the course of 2011, and still continues to a lesser extent today, without understanding first how profoundly damaged Libyan society has been over the last 40 years. As discussed in its first report, the Commission has tried to place the demonstrations and conflict within the broader human rights and democratic context of Libya. This includes widespread corruption and nepotism, the manner of governance, and serious human rights abuses over decades. Human rights concerns about Libya under the Qadhafi Government were repeatedly raised in international forums, in particular by United Nations human rights treaty bodies and special procedures mechanisms. Notwithstanding this, Libya was elected to chair the HRC in 2003 and elected to the Commission’s successor, the HRC, in May 2010.
A large number of documented enforced disappearances and cases of extrajudicial, summary or arbitrary executions were noted in 2007 by the HRC, along with concerns expressed about the lack of information concerning effective investigation and redress. It also raised concerns regarding arbitrary arrest, the absence of judicial review of detention, the length of pre-trial detention and the systematic use of torture and cruel, inhuman or degrading treatment or punishment. Although torture was considered a crime under the Libyan Penal Code, the Committee against Torture, in 1998, was critical of the absence of prompt and impartial investigations into incidents of torture.53 During Libya’s Universal Periodic Review in November 2010, members of the HRC raised concerns regarding serious human rights violations including arbitrary detention; torture and other forms of ill-treatment; constraints to the freedom of expression, association and assembly; and impunity for gross human rights violations including enforced disappearances and the killings of over 1,200 prisoners in Abu Salim Prison in 1996. The Qadhafi Government of Libya dismissed the criticism, and rejected all recommendations regarding specific violations and steps to address them. 54
Muammar Qadhafi’s four decade rule was characterized by severe repression of all dissent, and marred by widespread human rights abuses. Qadhafi built and consolidated a system in which he was essentially the sole decision-maker, while claiming to be a “spiritual guide” or “Brother Leader” and not to have any official government role. The survival of the system heavily relied on brutal repression of any opposition via a network of intelligence agencies including the Internal Security Agency (Jihaz Al-Amn Al-Dhakhli), the External Security Agency (Jihaz Al-Amn Al-Kharaji), the Military Intelligence Service (Jihaz Al-Amn Al-Askari or Istikhbarat), the Revolutionary Committees (Al-Lijan Al-Thawria), Revolutionary Guard (Al-Haras Al-Thawri) and informants, who acted with complete impunity and were above the law.55 In fact, by the time of the “17 February Revolution”, most opponents had been killed, jailed, or were in exile. Those who dared to criticize the political system did so with utmost care and lived under constant threats and harassment.
Freedom of speech and freedom to engage in public affairs were significantly curtailed in law and in practice. Political parties were illegal. “Political activity” for this purpose was defined broadly to include any activity based on a political ideology contrary to the principles of the Al-Fateh Revolution of 1 September 1969. The Penal Code could still impose the death penalty for the establishment of prohibited groups or criticizing the “Leader”. Free speech was curtailed if it ‘prejudices the People’s Authority or is used for personal interest’. Other laws prevented the exercise of the right to freedom of association. As a result, there were no independent human rights organizations or other civil society groups in Libya for over four decades.
Libya had the highest literacy and educational enrolment rates in North Africa and high rates of female students in schooling.56 Education was free of charge, primary school attendance nearly universal and health services free for all children. However, many Libyans expressed frustration at the quality of education and the removal from the curriculum of any material that would endanger the survival of the political system. For instance, English language was not taught. On the other hand, the teaching of Muammar Qadhafi’s political ideology laid down in the Green Book was mandatory.
The Libyan economy depends primarily upon income from oil and natural gas, which contributes about 95% of export earnings, 65% of gross domestic product (GDP) and 80% of Government revenue. The substantial income from oil, coupled with a small population of about 6.5 million (2010 estimate), gives Libya one of the highest per capita GDP in Africa at approximately $11,000.57 However, the country’s economic wealth was not shared. For example, 28% of the population did not have sustainable access to an improved water source and the country suffered from severely under-developed infrastructure despite its oil wealth. There was also internal discrimination, particularly against the Amazigh population, who were not recognized as a minority and were impeded from preserving and expressing their cultural and linguistic identity.58
Libyan society was and remains male-dominated, with gender-based discrimination widespread. In addition to entrenched discriminatory norms within Libyan culture and stereotypes of women’s roles in family and society, the enforcement of laws itself displayed discrimination and did not provide for equal rights for women and men particularly in terms of marriage, divorce and inheritance rights.
As discussed in its first report, the Commission heard repeatedly during its investigation that past human rights violations have had a deep psycho-social impact on the community. Notable cases included the extrajudicial killing of 1,272 prisoners by machine gun fire in Abu Salim Prison in June 1996 and the public hanging of university students accused of directly or indirectly opposing the government at the university, with others forced to watch. This is in addition to the widespread and systematic cases of torture, disappearance and extra-judicial executions perpetrated by the Qadhafi Government and reported to the Commission in the course of its work, with families left powerless to complain and often with no knowledge of what happened to their family members. Families of those killed in the Abu Salim Prison in 1996 were the first to protest on 15 February 2011 in Benghazi after the arrest of their representative, and were instrumental in triggering the uprising. It is against this background of repression of rights that one has to assess the pent-up demand for democracy and the rule of law in early 2011 and the behaviour of individuals and units of those revolutionaries or thuwar who subsequently took up arms against the Qadhafi Government.
In accordance with the mandate of the Commission, this report has focused on violations committed by both sides in the recent conflict. Given the shift in power since the revolution began, a significant amount of this report focuses on abuses by those who rose up against the Qadhafi Government. The Commission is mindful that such abuses are not to be excused. They must, however, be viewed in the context of systematic torture, murder and repression of the people of Libya by Muammar Qadhafi and his Government over four decades. It is also mindful of the fact that, while major abuses are still occurring, the significant difference between the past and the present is that those responsible for abuses now are committing them on an individual or unit level, and not as part of a system of brutality sanctioned by the central government. The Commission is cognizant of the challenges facing the new Libyan leadership in rebuilding a country left by the Qadhafi Government devoid of independent institutions, a civil society, political parties, and a judiciary able to provide justice and redress.