The Independent Civil Society Mission to Libya was established by the Arab Organization for Human Rights (AOHR), in cooperation with the Palestinian Centre for Human Rights (PCHR), who provided additional expertise and professional experience. The International Legal Assistance Consortium (ILAC) subsequently joined the mission, providing further international expertise and insight. The Mission was established in response to allegations of widespread violations of international law committed in Libya since 15 February 2011, and in light of the State’s current transition away from authoritarian rule.
The Mission was established with specific terms of reference:
(i) To investigate alleged violations of international law committed by: a. The former Government of Libya; b. The North Atlantic Treaty Organization (NATO), i.e. third States engaged in hostilities in Libya pursuant to Security Council Resolution 1973; and c. Former opposition forces. (ii) To identify human rights related issues necessitating the attention of the Libyan authorities and/or the international community.
The Mission visited Libya from 15-22 November 2011, and conducted on-site interviews and investigations in western Libya, inter alia, in, and around, Tripoli, Zawiya, Sibrata, Khoms, Zliten, Misrata, Tawergha, and Sirte.
Findings and Observations of the Fact-Finding Mission
The Mission’s investigation in Libya revealed significant evidence concerning possible violations of international law. Due to a number of constraints documented in the Report, the Mission was unable to reach definitive legal conclusions regarding individual incidents. However, from its observations potential violations of international law may include war crimes and possibly crimes against humanity.
The Former Government of Libya With respect to potential violations of international law committed by the former Government of Libya, the Mission identified a number of issues demanding effective investigation. These included: the use of excessive force against demonstrators; mass arbitrary arrests; the armed forces’ conduct of hostilities; the use of human shields; allegations of rape and sexual violence; and torture, cruel, inhuman, or degrading treatment. Such incidents may amount to war crimes, and possibly crimes against humanity.
The Former Opposition Forces With respect to the former opposition forces, the Mission identified a number of issues demanding effective investigation: These included: the killing of persons hors de combat; torture, cruel, inhuman or degrading treatment, and abuses in detention; the treatment of suspected mercenaries; and the forcible displacement of suspected ‘enemies of the Revolution’, particularly in Tawergha. Such incidents raise concerns regarding the commission of war crimes, and possibly crimes against humanity
NATO With respect to third States engaged in hostilities under NATO command, the Mission believes that the criteria and procedures used to classify civilian objects as military objects – in particular attacks on schools, colleges, and food distribution centres – raises concerns and necessitates further investigation. The Mission also received evidence concerning a 15 September 2011 incident in Sirte, which reportedly resulted in the deaths of approximately 47 civilians. This incident raises significant questions that should be addressed in an open and transparent manner. Conclusions The Mission emphasizes that all potential international crimes, as detailed in Section 5 of the Report, necessitate effective investigation, including, where appropriate, the prosecution of those responsible. The Mission shares the view of other commentators, such as the International Committee of the Red Cross, that the duty to effectively investigate such allegations arises from customary international law.
The primary obligation to conduct effective investigations falls upon the Libyan authorities. However, should the Libyan authorities proves unwilling or unable to conduct the necessary investigations and prosecutions, the interests of justice demand that recourse be had to mechanisms of international justice.
The Mission is particularly concerned by potential ongoing abuses in detention, the treatment of suspected mercenaries, and the forced displacement – and related mistreatment – of perceived Gaddafi loyalists. The Mission believes that the forcible displacement of perceived loyalists, as evidenced by the situation with respect to Tawergha, may amount to a violation of international law. The Mission urges the National Transitional Council and associated forces to immediately act to halt ongoing violations, and to investigate all past abuses to ensure compliance with international law.
The Mission is struck by the statement of a senior military commander in Tripoli: “what I fear most now are the revolutionaries themselves.” After significant sacrifice, Libya is emerging from 42 years of authoritarian rule and governance characterised by injustice, the denial of fundamental human rights, and impunity.
The Mission firmly believes that the process of building a new Libya must be firmly grounded in the core principles of human rights, democracy, and the rule of law. In this regard, accountability is key: all those suspected of violating international and domestic law must be investigated and, where appropriate, prosecuted. The rule of law, and respect for human rights, must be re-established. Public scrutiny, or public awareness, is an essential component of this process. The maxim that “justice must not only be done, it must also be seen to be done” is particularly relevant to Libya’s transition. Recommendations
To the Libyan Authorities
The following recommendations are submitted to the Libyan authorities:
· To effectively investigate all potential violations of international law – including those presented in this Report – in compliance with international standards; · To immediately address the situation in Tawergha, and other loyalist towns; · To eradicate arbitrary detention, and ensure that all detainees are brought before a judge, and given the opportunity to challenge the legality of their detention; · To investigate, and address, the mistreatment of suspected mercenaries; · To order a review of detention standards and practices; · To ensure that all detention centres fall under governmental control; · To promote the training of detention centre personnel; · To ensure that international standards relating to detention are adhered to, and enforced; · To promote and conduct training in international law, including international human rights law, for lawyers and members of the judiciary; · To invest in the Libyan judicial system, including training for clerks and court reporters; · To incorporate international human rights law instruments into Libya’s domestic legal system; · To accede to the Rome Statute of the International Criminal Court.
To the United Nations The following recommendations are submitted to the United Nations:
· Through United Nations Support Mission in Libya (UNSMIL), to immediately begin implementation of its mandate set forth in §12 of Security Council Resolution 2009, including: o promotion of the rule of law; o promotion and protection of human rights, particularly for those belonging to vulnerable groups; and o support for transitional justice. · As part of this process, to provide training, support and other assistance to Libyan authorities and civil society to implement the goals set forth in the preceding paragraph.
To the Member States of the International Community The following recommendations are submitted to the International Community:
· To provide training, support and other assistance to Libyan authorities and civil society to implement the goals set forth above; and
· As in set forth in §12(f) of Security Council Resolution 2009, to work with Libyan authorities and civil society and other international actors to coordinate such assistance;
· To avoid competition among international actors concerning such assistance; and
· To investigate in an open and transparent manner the actions by third states engaged in hostilities pursuant to Security Council Resolution 1973.