Saif Al Islam Gaddafi Sentenced to Death in Absentia

Libya: Flawed Trial of Gaddafi Officials
Defendants Had Limited Access to Lawyers, Torture and Ill-Treatment

(Beirut) – The trial in which 32 Gaddafi-era officials were convicted on July 28, 2015, of serious crimes during Libya’s 2011 war was undermined by serious due process violations, Human Rights Watch said today.

Tripoli’s Court of Assize convicted 32 defendants, sentencing nine of them to death and 23 to prison terms ranging from five years to life imprisonment. The court acquitted four defendants and referred one to a medical institution. The 38 defendants initially sent for trial included Saif al-Islam Gaddafi, son of Muammar Gaddafi, as well as the Gaddafi administration’s former intelligence chief, Abdullah Sanussi, and two former prime ministers, al-Baghdadi al-Mahmoudi and Abuzaid Dorda. All four were sentenced to death. Libya’s Supreme Court should independently and fully review the verdict, including a full evaluation of the evidence and the conduct of the trial, and overturn the death sentences.

“This trial has been plagued by persistent, credible allegations of fair trial breaches that warrant independent and impartial judicial review,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch.

Both the prosecutor and defendants can seek the Supreme Court cassation chamber’s review. Under Libyan law, the cassation chamber’s consideration of verdicts issued by the Court of Assize appears limited to questions of law. However, to guarantee a genuine examination, the higher court should be competent to consider elements of both fact and law, Human Rights Watch said. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa state that the right to appeal shall provide a genuine review of the case, including the law and the facts.

The ongoing political crisis in Libya together with the general deterioration in security conditions also puts in question the trial judges’ ability to adjudicate the case independently and impartially, Human Rights Watch said. Trials of serious crimes such as those at the center of this proceeding are often extremely sensitive and impose huge demands on prosecuting and other authorities, including the obligation to protect the security of witnesses, victims, and judicial personnel.

The verdict comes as armed conflicts combined with the collapse of a central government authority have eliminated any semblance of law and order in many parts of Libya. The hostilities have led to the emergence of two de facto governments, an internationally recognized government based in Tobruk and al-Bayda that nominally controls much of eastern Libya, and a rival self-declared authority based in Tripoli that controls swathes of western Libya, where the trial took place.

The trial began in March 2014 and concluded in May 2015. Independent observation of the trial was limited, but information available to Human Rights Watch – including observation notes made available by the United Nations Support Mission to Libya (UNSMIL), which followed the trial remotely, as well as recent discussions with the chief prosecutor, defense lawyers, journalists, family members, and others – strongly suggests that the accused were not afforded meaningful legal representation during the trial.

Several defense lawyers told the court that they had been unable to meet with their clients in private while counsel for some of the defendants, including Sanussi and Dorda, changed over the course of the trial. Dorda alleged in court that two lawyers resigned from his defense due to threats, and that a third was prevented by unknown people from representing him. One lawyer representing Sanussi resigned citing medical issues and another undisclosed reason.

These issues, coupled with a lack of full and timely access to the complete case file against the accused and defense concerns over lack of time to prepare and present witnesses, probably diminished the lawyers’ ability to effectively represent their clients, Human Rights Watch said. Some defendants, including Saif al-Islam Gaddafi and Abdullah Sanussi, also said that they lacked legal representation during pretrial proceedings, including during their interrogation.

Gaddafi is wanted by the International Criminal Court (ICC)  but Libya has refused to surrender him to The Hague despite an ICC order. Gaddafi was convicted and sentenced in absentia. He was not in the courtroom during either the pretrial or trial proceedings, but instead remained in the western town of Zintan. The head of the guard force responsible for detaining him there refused to comply with a prosecutor’s summons to transfer Gaddafi to Tripoli to stand trial.

The authorities established a closed circuit video link to enable Gaddafi to participate in the trial but he was only able to apparently join for 3 of the 24 trial sessions. While the court appointed a lawyer to represent Gaddafi, it is unclear whether the lawyer participated fully in the proceedings and does not appear to have presented a final defense pleading on Gaddafi’s behalf. Gaddafi has not been seen or heard from since June 2014. His current whereabouts are unknown.

Under international law, trials in absentia are permitted only in exceptional circumstances and if the defendant has explicitly waived the right to be present. Though Libyan law permits trials in absentia in some circumstances, Libya’s delegate to the ICC, Ahmed Gehani, has said in pleadings before judges in The Hague that such trials are not allowed if the defendant’s location on Libyan territory is known. The minimum procedural safeguards for trials in absentia do not appear to have been met in Gaddafi’s case. Al-Siddiq al-Sur, the chief prosecutor in the case, said that Gaddafi will have the right to a retrial.

The UN Working Group on Arbitrary Detention concluded in November 2013 that Gaddafi’s detention has been arbitrary and that the gravity of the due process violations in his case made it impossible to guarantee him a fair trial in Libya. The UN panel concluded that the adequate remedy would be to discontinue the domestic proceedings against him.

On July 24, 2014, ICC judges upheld an earlier decision approving a bid by Libya to prosecute Sanussi domestically. Human Rights Watch has urged the ICC prosecutor to consider asking ICC judges to revisit the Sanussi ruling based on new facts.

Libya’s conflict has brought the country’s institutions, including the judiciary and criminal justice system, to a state of collapse, many courts, prosecutors’ offices, and criminal investigation divisions suspending their activities because of worsening security conditions and attacks targeting judges, lawyers, and prosecutors. The ability of the Supreme Court, which sits in Tripoli, to afford impartial remedy is also threatened by current divisions and deteriorating security conditions.

In a December 2014 statement, Libya’s al-Bayda-based justice ministry disavowed responsibility for all trials in areas of Libya other than those controlled by the internationally recognized government, including the trial of former senior Gaddafi-era officials. “No impartial and independent judgment could be issued at gunpoint under illegitimate militias in the aforementioned cities,” the statement said. During an interview on July 26 on Libya Awalan television channel, the justice minister, Al-Mabrouk Al-Ghrira, said it was important that the “world does not recognize any verdict issued by the court.”

Al-Hadba Corrections Facility, where the trial sessions took place, is currently under the control of the former deputy defense minister, whose forces are allied with the Libya Dawn militia coalition that backs the self-declared authority in Tripoli and opposes the internationally recognized government based out of the eastern cities of al-Bayda and Tobruk.

In the face of mounting atrocities in Libya, and the failure of Libyan authorities to investigate or prosecute those responsible for grave abuses since the 2011 war,  Human Rights Watch has called on the ICC prosecutor, Fatou Bensouda, to pursue an additional investigation in Libya into ongoing crimes. The scope of Bensouda’s current investigation remains limited to cases from 2011 involving officials of the former government.

The International Covenant on Civil and Political Rights (ICCPR), to which Libya is a state party, limits the circumstances in which a country can impose the death sentence. The United Nations Human Rights Committee, the body that interprets the ICCPR, has said that “in cases of trials leading to the imposition of the death penalty, scrupulous respect of the guarantees of fair trial is particularly important.” The African Commission on Human and Peoples’ Rights fair trial standards says that “states that maintain the death penalty are urged to establish a moratorium on executions, and to reflect on the possibility of abolishing capital punishment,” and that the “interests of justice always require legal assistance for an accused in any capital case, including for appeal, executive clemency, commutation of sentence, amnesty or pardon.”

Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and inhumane punishment. Under Libya’s Code for Criminal Procedures, the Supreme Court needs to confirm the death sentences and then the High Judicial Council needs to approve.

“There are serious questions about whether judges and prosecutors can be truly independent where utter lawlessness prevails and certain groups are unashamedly shielded from justice,” Stork said. “This trial was held in the midst of an armed conflict and a country divided by war where impunity has become the norm.”

Access to Lawyers and Adequate Facilities, Time to Prepare Defense

Article 14 of the International Covenant on Civil and Political Rights and article 7 of the African Charter on Human and Peoples’ Rights both enshrine the right to a fair trial. It requires governments to afford anyone accused of a crime a fair hearing before a legally constituted, competent, independent, and impartial judicial body. Among other things, this right to a fair hearing includes: an adequate opportunity to prepare a defense, present arguments and evidence, and challenge or respond to opposing arguments or evidence; the right to consult legal counsel and to be represented by a legal representative; the right to a trial without undue delay; and the right of appeal to a higher judicial body.

Prior to the start of the trial, during a Human Rights Watch investigation in January 2014, both Gaddafi and Sanussi alleged that they did not have a lawyer, and Dorda and al-Mahmoudi alleged that authorities had denied them adequate access to their legal counsel. All four told Human Rights Watch at the time that officials would not let them have a lawyer present during their interrogations, would not reveal their interrogators’ identities, and had denied the defendants the right to remain silent and the opportunity to review the evidence against them.

While it appeared that all defendants in the case were eventually represented by defense counsel a few sessions into the trial – either retained by their families or appointed by the court, some lawyers reported difficulties meeting their clients in private. The chief prosecutor in the case, al-Siddiq al-Sur, told Human Rights Watch that some lawyers were able to visit their clients in private without the presence of any guards upon written request of the prosecutor’s office, while other high-level detainees were not allowed to be alone in the room with their lawyers for “security reasons.” Al-Sur said that the judicial police were mainly concerned that these detainees would use the lawyers’ visits to attempt to flee.

One Tunisian lawyer representing al-Mahmoudi and Sanussi early on in the trial, Leila Ben Debba, told Human Rights Watch that she was unable to obtain the accreditation from the Libya Bar Association needed to officially meet with her clients and represent them in court. The lack of accreditation also prevented her from accessing the case materials. Ben Debba, who was part of a team of lawyers representing al-Mahmoudi, which included two Libyans, said she only managed to attend a few trial sessions unofficially through personal connections. She said she was able to meet with al-Mahmoudi only once in the presence of five prison guards, and only after the direct intervention of the former justice minister. Ben Debba said she was never able to meet with Sanussi in private and never discussed the case with him. Ben Debba told Human Rights Watch that she stopped traveling to Libya when the conflict in Tripoli broke out in July 2014.

Ahmed Nashad, a Libyan lawyer appointed in June 2014 to represent Sanussi, told Human Rights Watch that there was always a guard present in the room when he met with his client. Nashad said he attended all the trial sessions from the time of his appointment by Sanussi’s family with the exception of 2-3 hearings when it was physically not possible for him to travel to the court due to the security situation.

Another defense lawyer representing several defendants in the trial, who wished not to be named, told Human Rights Watch that guards were always in the room when he met with his clients.

At the trial, some defense lawyers said at various sessions that they needed more time to read through the case materials or to bring witnesses located in other cities to court. Nashad told Human Rights Watch he had not been able to secure the physical presence of any witnesses on behalf of Sanussi, though he submitted some written statements from people outside of Libya who refused to attend the trial due to security concerns.

Some lawyers may not have had any prior knowledge of the case when they were brought in to replace other lawyers who could no longer represent their clients. One lawyer who represented multiple defendants asked that their cases be separated to enable him to better advise each of his clients, but the trial court apparently denied his request. Ahmed Nashad said he also took over Dorda’s defense 17 days before Dorda’s final pleading in May 2015, after his lead counsel unexpectedly withdrew from the case. Nashad met with Dorda four times, but a guard was present despite Dorda’s request that they meet in private.

The United Nations Support Mission to Libya said that the prosecution took less than one hour to present its case without introducing any of the witnesses cited in the case papers, while the court appeared to arbitrarily limit the number of witnesses that the defendants could call. The court also appears to have allowed the defendants no opportunity to question prosecution witnesses in court. These alleged impediments, combined with the difficulties that the accused faced in accessing legal counsel, cast serious doubt on the ability of the defendants to mount a full and proper defense, as well as violating the basic fair trial rights of defendants to present their own witnesses and examine witnesses against them, Human Rights Watch said.

Limited Public Access to the Proceedings

Representatives of the United Nations support mission attended some early sessions of the trial before it temporarily withdrew from Libya in July 2014, citing security concerns, and based its operations in Tunis. From there, the UN mission continued to monitor the trial remotely via television broadcasts, although other programming sometimes interrupted the coverage. The authorities have only allowed news networks considered sympathetic to the rump government in Tripoli, including Al Jazeera and the local al-Nabaa television station, to broadcast trial sessions live since the current armed conflict began.

In May 2014, an international UN staff member was briefly detained by the authorities in al-Hadba Corrections Facility. Human Rights Watch attended one trial session, but was not allowed by prison authorities to observe another session.

Foreign journalists who tried to cover the proceedings told Human Rights Watch that they encountered difficulties entering al-Hadba and were sometimes refused access. The journalists also reported that the process for obtaining permission to enter the trial facility was unclear and changed from session to session. International fair trial standards call for hearings to be public in principle, to ensure transparency of proceedings and serve as an important safeguard for defendants.

Some foreign and Libyan female journalists were required by the prison authorities to wear headscarves, while others were denied access to the facility and the sessions altogether.

Insecurity and the State of the Libyan Judicial System

Unchecked violence stemming from renewed hostilities in Libya in May 2014 has killed hundreds of people, including civilians, displaced hundreds of thousands from their homes, damaged medical facilities, and destroyed vital civilian infrastructure, including Tripoli’s main airport. The precarious security environment has led all key international organizations, including the UN Mission to Libya, the International Committee of the Red Cross, foreign diplomats, and businesses to indefinitely withdraw from Libya.

Over the last year, armed groups have attacked civilians and civilian property, with violations in some cases that amount to war crimes. Human Rights Watch has also documented other serious violations of international law since 2011, including arbitrary detentions, torture, forced displacement, and unlawful killings. Many of these violations are sufficiently organized and widespread to amount to crimes against humanity, but Libyan authorities have failed to investigate or prosecute those responsible.

A law enacted in May 2012 that grants a blanket amnesty to those who committed crimes if their actions were aimed at overthrowing the Jamahiriya, remains in force.

Torture and Ill-Treatment

In March, the UN special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment held that, in the absence of information to the contrary, Libya had violated Saif al-Islam Gaddafi’s right to be free from torture and other ill-treatment. Libya failed to reply to an earlier communication from the special rapporteur that outlined allegations of mistreatment of Gaddafi.

During a court session on January 15, 2014 relating to one of the cases against him, Dorda alleged that an unidentified person had beaten and injured him in his cell at al-Hadba. Human Rights Watch spoke with family members who attended that court session and reviewed a complaint about the incident that Dorda’s lawyer submitted to the General Prosecutor’s Office demanding an investigation, yet a defense lawyer representing Dorda said they do not know whether such an investigation was conducted and whether any measures were taken. Dorda said that on December 29, 2013, he was beaten on his head and body while in his cell by a person “unknown to him and from outside of the prison.” He said the person came into his cell and beat him up and took all of his belongings, including cleaning material, medication, and his crutches. He said the beating on his head made him dizzy.

During a trial session held in January, Sanussi’s lawyers said that he was being held in solitary confinement and asked the court to end it. At another session in February, Sanussi protested being held in solitary confinement for two and a half years. It is unclear whether the issue was resolved by court officials.

Any prison system in which detainees are held largely in solitary confinement without regular and private access to their lawyers and their families increases the risk of ill-treatment and abuse, Human Rights Watch said. Human Rights Watch has urged authorities in Libya to hold detainees in solitary confinement only when and for as long as strictly necessary, and to respect the inmates’ rights at all times. Under international law, prolonged solitary confinement of a detainee can amount to cruel, inhuman, or degrading treatment or punishment.