The trial in Libya of Saif al-Islam Gaddafi and 36 other members of Colonel da’s regime represented a major effort by the Libyan judiciary to hold people to account for crimes including grave human rights violations during the 2011 Revolution but ultimately failed to meet international fair trial standards, a UN report published today said.
The report by UNSMIL and the UN Human Rights Office (OHCHR) analyses key aspects of the trial in light of international standards and Libyan law, and makes a series of recommendations to address flaws in Libya’s criminal justice system highlighted by the trial. The report recognizes the challenge of trying former members of the regime, especially amid armed conflict and political polarization, but points out that the conduct of this trial raises many concerns that should be addressed by the Libyan authorities.
UNSMIL and OHCHR closely monitored Case 630/2012 from the pre-trial phase through the court proceedings, which began in March 2014, to the verdict in July 2015. Nine of the defendants were given the death penalty, including Saif al-Islam Gaddafi, who was tried in absentia, former intelligence chief Abdullah al-Senussi and former Prime Minister Al-Baghdadi al-Mahmudi.*
In addition to monitoring the proceedings, either in court or by following live broadcasts of the trial sessions, UNSMIL and OHCHR staff interviewed many of the defendants and their relatives and lawyers, reviewed the case dossier and judgement, and had extensive discussions with Libyan officials and Libyan and international experts. The public prosecutor’s office in particular provided documentation and was available for discussion of the trial throughout the process.
Holding perpetrators responsible for violations is vitally important but accountability should be the result of due process and a fair trial
The report notes that Case 630/2012 is the most prominent effort by the Libyan judiciary to bring high-profile former regime officials to account for crimes committed during the 2011 uprising and armed conflict and it welcomes the fact that proceedings were broadcast live.
However, the report identifies serious violations of due process, including prolonged periods of incommunicado detention for the defendants amid allegations of torture which were not properly investigated. Lawyers complained repeatedly of difficulties in meeting defendants in private and accessing documentation. The right to defence was also undermined by the fact that no prosecution witnesses were called to testify in court – the prosecution’s case was only briefly presented during the court sessions – and the court restricted each defendant to two witnesses. In addition, the Libyan judicial system does not allow for a full appeal but only cassation – a review focused on points of law only.
“Holding perpetrators responsible for violations is vitally important but accountability should be the result of due process and a fair trial. This trial was a missed opportunity for justice and for the Libyan people to have the chance to confront and reflect on the conduct of the former regime,” said UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein.
A full judicial record of the trial that included the presentation in court of all the prosecution evidence would have contributed significantly to shedding light on the history of the 2011 revolution and been an important document for future generations, the report notes.
UNSMIL and OHCHR urge the Court of Cassation to take into full account the due process violations identified in the report and provide effective remedies, pending the adoption of reforms needed to bring Libyan trials into full compliance with international standards.
Among other specific recommendations, the report calls for a review of the Penal Code and the Code of Criminal Procedure to ensure all crimes are clearly defined, access to lawyers during interrogation is guaranteed and other fair trial safeguards are strengthened. Detainees should be held in facilities under the effective control of the state and allegations of torture must be promptly and thoroughly investigated. The report also urges a moratorium on the use of the death penalty.
The Libyan authorities should also ensure the surrender of Saif al-Islam Gaddafi to the International Criminal Court, in compliance with Libya’s international obligations.