United Nations A/hrc/19/68

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Applicable law

      1. Arbitrary detention

  • Article 9 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary arrests and detentions. It provides that “no one shall be deprived of liberty except on such grounds and in accordance with such procedures as are established by law”. The Covenant further requires that all individuals apprehended be informed at the time of arrest of the reasons for the arrest and that they are promptly informed of any charges. Anyone arrested or detained on a criminal charge is to be brought promptly before a judge or other officer authorized by law to exercise judicial power and is entitled to trial within a reasonable period or release. Persons have a right to take proceedings before a court for the purposes of reviewing the lawfulness of detention and to be released if the detention is unlawful (the Covenant also provides for a right to compensation for unlawful arrest or detention). Lawfulness of detention is to be considered both under domestic law and under international law.375 The term “arbitrary” is considered in terms of appropriateness, proportionality and reasonableness.376

  • The ICCPR provides a set of fundamental guarantees that includes the right to be presumed innocent, the right to counsel of one’s own choosing , and the right not to be compelled to testify against himself or herself, which includes the use of coerced testimony, such as that rendered under torture (art. 14, para. 3).377

  • The Commission recalls the various legal regimes that applied to the phases of the conflict, while noting that international human rights law applied throughout (see chap. I, sect. E). It recalls that liability for violations generally attaches to state parties rather than non-state entities such as the thuwar. Nevertheless, the Commission notes that on 16 September 2011, the United Nations General Assembly formally recognized the NTC as the interim Government of Libya.378 The Commission therefore continued its investigations into alleged violations of international human rights law considering the interim Government as representing the successor state with respect to the country’s obligations under the ICCPR.

  • The Commission also notes that international humanitarian law was still in effect - and applied to thuwar actions - until the close of hostilities at the end of October 2011. International humanitarian law addresses the consequences of detentions, for example in Protocol II where it prescribes that detainees must at all times be treated humanely, irrespective of whether they participated in the armed conflict. They must further be allowed to receive individual or collective relief; to practise their religion; to send and receive letters and cards,379 and they shall have the benefit of medical examinations.380

  • At the close of an armed conflict, international humanitarian law requires parties who have detained individuals in the context of the hostilities to release them unless they intend to charge them criminally in a court established by law.381

    (b) Enforced disappearance

    1. While Libya is not a party to the International Convention for the Protection of All Persons from Enforced Disappearance, it is a party to the ICCPR, provisions of which are infringed by enforced disappearance. An enforced disappearance is said to occur when a state apprehends someone and then refuses to acknowledge it.382 Such action violates a person’s right to recognition as a person before the law, and to liberty and security and freedom from arbitrary detention, including the right to be brought promptly before a judge or other official for review of the lawfulness of detention.383

    2. Under international humanitarian law, persons taking no active part in the hostilities are entitled to be treated humanely.384 Customary international humanitarian law also includes a prohibition on arbitrary deprivation of liberty385 and requires parties to the conflict to keep a register of persons deprived of their liberty,386 respect detainees’ family life, permit detainees to receive visitors, especially near relatives to the degree practicable,387 and allow correspondence between detainees and their families.388 Parties to a conflict must take all feasible measures to account for persons reported missing as a result of the conflict and efforts must be made to provide family members with any information the party has on their fate.389 Holding persons outside the framework of the law often leads to other violations such as torture, murder or extra judicial executions. The combined effect of particular international humanitarian law obligations leads to the conclusion that the practice of disappearance is prohibited by customary international humanitarian law.390

    3. Furthermore, “imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law” and enforced disappearance are acts recognized in the Rome Statute as potentially giving rise to a crime against humanity if committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack.391

    4. In the context of a crime against humanity, the Rome Statute defines enforced disappearance similarly to the Convention definition set out above. One important difference is that under the Rome Statute, the perpetrator can act with the authorization, support or acquiescence of, a State or a political organization. 392

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