By William Ford
Three lawsuits in U.S. federal court represent an inflection point in the global effort to hold Libyan war criminals legally accountable for torture and extrajudicial killings.
.PART TWO
In the first of the three lawsuits filed against Hifter, Elzagally et al. v. Hifter, the Tunalli, Gasiah and al-Harramah families allege that Hifter ordered indiscriminate bombing that killed their family members and targeted areas in which Hifter knew civilians to reside.
On April 4, 2019, LNA shelling in Tripoli killed Msaddek Tunalli as he worked to evacuate women and children from the targeted area. On April 6, 2019, in Wady al-Rabii, the LNA bombed a civilian field hospital, killing Dr. Ayman al-Harramah.
And on April 16, 2019, an LNA missile strike on a Tripoli neighborhood killed Mufida Sasi Abu Gasiah, as well as her mother, sister and daughter.
The plaintiffs allege that these atrocities violate the TVPA, the Alien Tort Statute and several Virginia statutes. (DISCLAIMER: The Elzagally complaint and its accompanying exhibits, linked here, include graphic and disturbing images of alleged war crimes.)
The plaintiffs in al-Suyid et al. v. Hifter et al., the second lawsuit filed against Hifter, plead more detailed allegations than their Elzagally counterparts.
They seek to hold Hifter and his sons, Khalid and Saddam, liable for torture and extrajudicial killing under the doctrine of command responsibility.
As such, their complaint contains detailed information about the LNA’s command structure—including the ranks and names of the specific officers allegedly involved in the torture and killings at issue. That conduct, the plaintiffs submit, violates both the TVPA and Virginia state law.
The al-Suyid plaintiffs’ claims—brought by the al-Suyid and al-Krshiny families—concern atrocities the LNA allegedly committed during Operation Dignity.
That operation reportedly began in October 2014 as a military campaign to rid Benghazi of Islamist militants. But the al-Suyid plaintiffs allege that Hifter and LNA officers used the operation as a means to “liquidate[]” individuals “suspected to oppose the LNA.”
The plaintiffs state that on Oct. 15, 2014, LNA units surrounded the al-Suyid family home, in which men, women and seven children resided.
Mustafa and Khalid al-Suyid engaged the LNA soldiers in a gunfight. Mustafa died during the engagement, and Khalid was wounded and later discovered dead.
Upon learning that the LNA was attacking their family, Abdel Salam and Ibrahim al-Suyid rushed home to help, but the LNA kidnapped them en route.
Soldiers allegedly detained Abdel Salam and Ibrahim in a nearby school and beat them. The next day, the brothers were found dead. Their bodies reportedly bore marks of torture.
On Oct.17, 2014, LNA soldiers attacked the al-Krshiny family home, in which women, men and 14 children resided. Soldiers and al-Krshiny family members engaged in a gunfight, during which Ibrahim al-Krishny sustained a shrapnel wound to his eye.
The LNA subsequently detained Ibrahim and his five brothers. According to the plaintiffs’ complaint, LNA soldiers brought Ibrahim and Mustafa al-Krshiny to LNA barracks “co-located with Defendant Khalifa Hifter’s headquarters in ar-Rajma, Libya.”
At the barracks, soldiers stripped and bound Ibrahim, and beat him with pipes, cables and a plastic hose. The soldiers allegedly forced Ibrahim to stand in water and repeatedly electrocuted him for five-minute intervals over the course of roughly 7.5 hours.
The soldiers then drove Ibrahim into a forest and released him but declined to release his brother Mustafa. Mustafa’s body was discovered on Nov. 5, 2014, with execution-style bullet wounds through his head and chest.
The LNA allegedly brought the other four al-Krshiny brothers to a camp in Benghazi controlled by Hifter’s subordinate, Maj. Gen. Jamal al-Zahawi.
When the brothers entered the camp, LNA soldiers allegedly fired on the truck transporting the brothers, killing one of them and wounding the other three. The LNA reportedly released the surviving three on Nov. 21, 2014.
The plaintiffs state that less than a year after these alleged atrocities occurred, Hifter released a video declaring that LNA units should show opponents “[n]o mercy.” The warlord continued: “Never mind the consideration of bringing a prisoner here. There is no prison here. The field is the field, end of the story.”
In contrast to Elzagally and al-Suyid, Hifter has yet to respond to the third lawsuit against him, Hamza et al. v. Hifter, which was not before Brinkema when she issued her stay on Sept. 29.
The allegations at issue in Hamza, however, are just as chilling as those detailed in the other lawsuits. In this case, the Hamza and Jibreel families allege that Hifter is personally or secondarily liable for, or aided and abetted, the extrajudicial murder of their family members. The plaintiffs contend that these atrocities violate the TVPA and the Alien Tort Statute.
William Ford holds a bachelor’s degree with honors from the College of the Holy Cross, where he majored in international studies. He is a former research intern at Lawfare and at the Brookings Institution.
The plaintiffs state that, in July 2016, Hifter began laying siege to Ganfouda, a residential district on Benghazi’s outskirts where the Hamza family had taken refuge.
On Aug. 10, 2016, plaintiff Ali Hamza—a dual Libyan-Canadian citizen who was living in Canada at the time—wrote to Hifter, requesting the safe treatment of his family and all civilians in Ganfouda and asking that they be given safe passage out of the area.
On Aug. 31, Libya’s U.N.-backed Government of National Accord asked the International Committee of the Red Cross to facilitate the evacuation of roughly 126 families from Ganfouda.
Hifter reportedly blocked the evacuation, as well as the delivery of food and medicine. The plaintiffs add that earlier in August, a spokesman for Hifter said, of the Ganfouda siege, that “whoever is above 14 [years] of age will never get out alive.” The siege continued for months. Ali Hamza alleges that by January 2017, his family had resorted to eating grass to survive.
On Feb. 26, 2017, the LNA shelled Block 12, where the Hamza family was living, killing Ibrahim Hamza and wounding two other family members. Two days later, the LNA launched another barrage of shells, severing Fariha Hamza’s leg. Besieged and without medical supplies, Fariha died from blood loss on March 2.
On March 18, the Hamza family and others on Block 12 got into three cars and attempted to flee the district. LNA units allegedly fired on the cars with heavy artillery and machine guns—the aftermath of which was captured on video.
That onslaught killed Naser, Aalya and Faiza Hamza, whose bodies are said to be visible in the video footage. Abtisam Hamza suffered a gunshot to the shin during the attack but survived. Hifter’s men subsequently detained Abtisam. While she was in their custody, they allegedly beat her with a steel pipe, targeting the leg that sustained the gunshot wound.
The Jibreel family, also trapped in Ganfouda, faced similar violence. On Jan. 5, 2017, the LNA bombed the Jibreel home, wounding Salimah and killing three of her children: 11-year-old Mohammad, eight-year-old Maryam and three-year-old Aziza.
On March 18, the Jibreels attempted to flee Ganfouda, but the LNA caught and detained them. The LNA eventually released Salimah and her surviving daughter. But Salimah’s husband, Alaa, remains in LNA custody, where he has allegedly been tortured and is currently being held incommunicado.
The Hamza plaintiffs quote the same pronouncement the al-Suyid plaintiffs attribute to Hifter: “Never mind [the] consideration of bringing a prisoner here. There is no prison here. The field is the field, end of story.”
On Aug. 20, Hifter moved to dismiss the Elzagally and al-Suyid suits on three grounds.
First, the warlord moved to dismiss them for lack of subject-matter jurisdiction, arguing that the cases present a nonjusticiable political question and that Hifter is entitled to head-of-state immunity.
In his briefing on the political question doctrine, Hifter’s counsel emphasized that moving forward with the lawsuits could “seriously jeopardize” the State Department’s effort to work with Hifter to secure a negotiated end to the Libyan civil war and might impede other American “foreign policy goals.”
The substance of those goals does not matter, counsel submitted, as “it is the political branches’ domain” to determine “whether to support Gen. Hifter’s actions in Libya.”
Second, Hifter moved to dismiss the lawsuits for failure to state a claim under the TVPA. His lawyers contend that the plaintiffs failed to exhaust all adequate and available remedies in Libya; that Hifter neither knew the alleged conduct occurred nor should have known it would occur; and that the allegations detailed in the plaintiffs’ complaints occurred during the course of lawful military operations and, therefore, could not support a finding of liability.
Third and finally, Hifter sought to disqualify the suits for improper service of process.
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William Ford holds a bachelor’s degree with honors from the College of the Holy Cross, where he majored in international studies. He is a former research intern at Lawfare and at the Brookings Institution.
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