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Introduction

 

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:

– promotion of the rule of law;

– promotion and protection of human
rights, particularly for those belonging to vulnerable groups; and

– 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.




 The full report is available here.