A Libyan military commander who previously lived for decades in Virginia cannot claim head-of-state immunity as a defense in lawsuits accusing him of atrocities in his country’s civil war, a judge ruled Thursday.
Khalifa Hifter leads the self-styled Libyan National Army, a faction in a civil war that has raged in the country for years. Once a lieutenant to the Libyan dictator, Hifter defected to the U.S. during the 1980s and spent many years living in northern Virginia. He is widely believed to have worked with the CIA during his time in exile.
He is also a defendant in three separate federal lawsuits filed in U.S. District Court in Alexandria. Plaintiffs allege their loved ones were killed or tortured by Hifter’s forces.
The lawsuits seek millions of dollars in damages that could be recovered from property that Hifter, a dual U.S. and Libyan citizen, and his family still own throughout northern Virginia.
In court papers, Hifter asserted that he is immune to lawsuits because he is head of state. He also said the judge should dismiss the cases because a lawsuit that seeks to assert blame in the country’s civil war is a “political question” that requires deference to the executive branch.
But at a hearing Thursday, U.S. District Judge Leonie Brinkema ruled that Hifter cannot claim either head-of-state immunity or the political-question doctrine as a defense in the lawsuits. She noted that she twice asked the State Department if it wanted to assert an interest in the case — once during former President Donald Trump’s administration and once during President Joe Biden’s administration — but that it declined to do so on both occasions.
Hifter’s lawyer, Jesse Binnall, argued unsuccessfully that the State Department’s decision not to intervene should not be seen as resolving the matter. He said the situation in Libya is fluid and whether Hifter is in fact the head of state is a question dependent on multiple factors.
He said the State Department’s failure to assert an interest in the case could be the result of many factors that have nothing to do with whether Hifter is, in fact, a head of state.
“Diplomacy is a difficult business,” he said. “Taking a position can screw up all the work you’re doing as a diplomat.”
But Brinkema agreed with Kevin Carroll, a lawyer for Muna al-Suyid and her family who says her brothers were killed by Hifter’s forces in Benghazi in 2014. Carroll argued that if the State Department refused to recognize Hifter as a head of state, Brinkema would be out of bounds as a judge to let him assert that immunity.
“If you were to declare Field Marshal Hifter is head of state in Libya, you would be acting inappropriately,” Carroll told the judge.
Brinkema’s ruling does not determine the final outcome of the cases. Plaintiffs will still have to prove their allegations at trial. And Brinkema is allowing Hifter to argue a different defense at trial: that those who were killed were armed combatants in the civil war, as opposed to innocent civilians.
“If the alleged victims were in fact engaged in armed hostilities, that changes the nature of the beast, in my opinion,” Brinkema said.
US court hears torture case against top Libyan commander
Two families targeted in a campaign of violence more than five years ago are suing Khalifa Hifter, the military leader of east Libya in a suburban Virginia court.
Hifter, a United States citizen and former Virginia resident, is accused of carrying out extrajudicial killings and torture under a rarely invoked law that allows for victims of these crimes committed in other countries to sue foreign officials in U.S. courts.
Two Libyan families presented their case against Libya’s east-based military commander Khalifa Hifter to an American court on Friday, in an unusual effort to hold him accountable for atrocities committed during the civil war.
The plaintiffs’ suit, brought earlier this year under a seldom-used law, accuses Hifter, a dual Libyan and U.S. citizen and former Virginia resident, of extrajudicial killings and torture. The 1991 Torture Victims Protection Act allows survivors of those crimes to sue foreign authorities for damages in U.S. courts.
Hifter’s lawyers did not appear at the first hearing in Alexandria, Virginia, which dealt mainly with procedural questions, such as determining service and damages. Judge Leonie Brinkema could soon grant a default judgement, as Hifter and his sons failed to respond to the suit by the deadline.
“A substantial award will send a message … that Hifter doesn’t have free rein to commit atrocities while retaining U.S. citizenship,” Kevin Carroll, a Washington lawyer with the firm Wiggin and Dana who represents the plaintiffs, told the court.
Hifter’s connections and properties in suburban Virginia give the federal court jurisdiction to prosecute his offenses, the plaintiffs’ lawyers argue. The families seek up to $85 million in damages from Hifter and his two sons, Khalid and Saddam, who helped lead his 2014 offensive in the eastern Libyan city of Benghazi.
“Every day I have this pain, the kind that stays with you after so much loss,” said Muna al-Suyid, a former human rights lawyer in Libya who filed the suit on behalf of her father and three brothers killed in Hifter’s campaign. “But worse is feeling unable to do anything about it.”
The plaintiffs are pushing for justice they’ve been denied at home, where the war has plunged large swaths of the country into lawlessness. Human rights campaigners see the case as a way to document atrocities for a reckoning when the war one day ends.
Al-Suyid alleges that on Oct. 15, 2014, an armed group affiliated with Hifter’s forces stormed her family’s home in Benghazi. Two of her brothers were gunned down. Fighters looted the house, set fire to it, and abducted her father and another brother. Their battered bodies were later found in a dump, bullets lodged in their heads and kneecaps.
At that time, three years after the NATO-backed ouster of dictator Moammar Gadhafi, fighting was ripping Benghazi apart. Hifter, a Gadhafi-era general who defected in the 1980s and returned for the 2011 uprising, had declared a war on extremists, but he also went after dissenters.
“Anyone who opposed his military coalition was targeted,” said Hanan Salah, a Libya researcher for Human Rights Watch. Over 90,000 fled the onslaught, the U.N. refugee agency reported, many to anti-Hifter strongholds in west Libya.
The al-Suyids fought in the 2011 rebellion and rejected Hifter’s strongman grip, which reminded them of Gadhafi. The al-Krshinys, the other family in the U.S. suit, originally hailed from the western city of Misrata, a bastion of resistance to Hifter, though they had worked as merchants in Benghazi for decades.
Two days after the destruction of the al-Suyid house, Abdalla al-Krshiny watched a militia burn his home to cinders. He says he and his five brothers were driven to different prisons. Two turned up dead, shot at close range. Another brother’s leg was shot and crudely amputated. Yet another was given electric shocks while standing in water for hours, the lawsuit said, and lost his eye because of the beatings.
The plaintiffs’ accounts are corroborated by fighters’ cellphone footage and records of directives that indicate the killings had been planned by Hifter and high-level officials.
Over the years, the al-Suyid and al-Krshiny families filed petitions before a court in the Libyan capital of Tripoli, which falls under the jurisdiction of a U.N.-supported government of Hifter’s rivals.
They gave testimony to investigators with the United Nations and International Criminal Court in the Hague. But their efforts only backfired, drawing death threats from Hifter’s officers. They were determined to find another way.
“Sometimes, you ask yourself, how did that person get radicalized? How did he walk into a street and blow himself up?” said al-Krshiny. “Without a system of justice, there is only revenge.”
Carmen Cheung, legal director of the San Francisco-based Center for Justice and Accountability described civil suits in U.S. courts as one step in a long struggle, “to establish a historical record where there had been none.”
As a defendant, Hifter is “extremely unusual,” said Carroll, the lawyer. Although the chances of financial recoveries are typically slim in civil suits, the family’s assets lend teeth to the case, he said.
A spokesman for Hifter did not respond to a request for comment.
In the 1980s, Hifter was taken prisoner in a disastrous war in Chad, disavowed by Gadhafi and eventually flown with around 400 of his troops to Virginia by the Central Intelligence Agency, which wanted their help in a Libyan coup, said Derek Henry Flood, a security analyst who has studied Hifter’s career.
But the plot failed. Hifter gained citizenship and settled in Falls Church and Vienna, Virginia, near the C.I.A. headquarters. His sons bought up 17 properties in cash from 2014-2017, worth at least $8 million, the lawsuit says.
In recent weeks, Hifter, 76, has suffered setbacks, namely the failure of his forces’ 14-month campaign to capture Tripoli from their rivals. But there is little indication that he or others in Libya could be held accountable soon.
Libyan authorities have failed to act on arrest warrants issued by the International Criminal Court for several high-level officials.
A separate U.S. suit filed against Hifter over his campaign to take Tripoli was dealt a blow earlier this spring, when a federal magistrate in Virginia argued that shelling of civilian neighborhoods did not constitute extrajudicial killing. The judge has yet to rule on the case.
But this lawsuit has caught the attention of Washington, where alarm is growing about the conflict’s descent into a proxy war.
Senator Tim Kaine of Virginia, who is following the case, believes evidence of rights violations and alleged use of Russian mercenaries and weapons “counter any suggestion that Hifter could ever be a viable partner for the U.S. or any other democracy.”