Entrenching the rule of Law in Libya (1)

Security sector’s accountability through civilian control and oversight

1. Introduction

In the present legal briefing, the International Commission of Jurists (ICJ) analyzes the Libyan legal framework regulating the military, security forces and the intelligence services, which at present does not fully comply with international law and standards.

In particular, the briefing formulates recommendations for reform to bring the security sector in line with Libya’s international law obligations, including with respect to:

establishing civilian oversight over the security sector; ensuring adequate prior vetting1 of its members; removing immunities that may bar the prosecution of crimes under international law; excluding the jurisdiction of military tribunals over such crimes; and strengthening guarantees of nonrecurrence under the country’s ongoing transitional justice process.

For present purposes, the phrase “security sector” will be understood as follows:

“Security sector” is a broad term often used to describe the structures, institutions and personnel responsible for the management, provision and oversight of security in a country.
It is generally accepted that the security sector includes defence, law enforcement, corrections, intelligence services and institutions responsible for border management, customs and civil emergencies. …
Other non-State actors that could be considered part of the security sector include customary or informal authorities and private security services. …
Security sector reform describes a process of assessment, review and implementation as well as monitoring and evaluation led by national authorities that has as its goal the enhancement of effective and accountable security for the State and its peoples without discrimination and with full respect for human rights and the rule of law.

Reforming the security sector in accordance with the principles of rule of law and respect for human rights is key to attaining political stability and enduring peace in Libya.

Background

Under Muammar Gadhafi’s rule (1969-2011), the security apparatus was instrumental to the regime’s repression of the population.

In the aftermath of Gadhafi’s fall, the existence of a myriad of armed groups, which had fought Gadhafi’s forces during the 2011 armed conflict and have continued proliferating since, has become a major source of insecurity and instability in Libya, and the main challenge to the State’s monopoly on the use of force.

Weakened State institutions have made multiple attempts disbanding armed groups and integrating their members into Libya’s official military and security forces. Yet, several factors have frustrated such efforts. These include:

(a) rushed integration processes without adequate prior vetting;

(b) the maintenance of the armed groups’ command structures; pre-existing loyalties; and

(c) Libyan political factions’ attempts to exploit alliances with such groups to consolidate their own interests within the country’s internal power struggles.

The institutional and political divide that has characterized Libya since 2014 – where competing authorities who have been in control of the West and the East of the country have fought multiple armed conflicts – has only worsened the situation, with several armed groups expanding their influence and power.

As a consequence, the State’s monopoly on the use of force is either significantly diminished or enforced by armed groups that often operate autonomously, even when nominally integrated into State institutions.

In such a context, numerous reports continue to arise disclosing credible evidence that both State actors and armed groups, including those formally incorporated into security forces, are committing serious violations and abuses of international human rights law and international humanitarian law (IHL) throughout the country.

In the West, militias such as the Stability Support Apparatus (SSA) or the Joint Operations Force (JOF), which have been established and/or are financed by the State, have allegedly perpetrated serious human rights violations, including extrajudicial killings, torture and arbitrary detentions.

In the East, reports indicate that a coalition of armed groups known as the Internal Security Agency (ISA), which is under the control of the Libyan Arab Armed Forces led by Khalifa Haftar, has arbitrarily detained local civil society activists and journalists, and been responsible for violations of their rights to freedom of peaceful assembly and expression, more generally.

The fact that members of armed groups and of Libya’s military, security forces and intelligence services are implicated in serious violations of international human rights law and IHL demonstrates the urgent need for a thorough reform, conducted in line with the principles of the rule of law and the respect for human rights of the country’s security sector .

In this respect, the Conclusions to the Second Berlin Conference on Libya, held in June 2021, did call for a reform that:

… place[s the security sector] firmly under unified, civilian authority and oversight …, with a credible, verifiable and comprehensive process of demobilization and disarmament of armed groups and militias in Libya and the integration of suitable personnel into civilian, security and military state institutions on an individual basis and based on a census of armed groups personnel and professional vetting.

The UN Human Rights Council has also underlined “the importance of restoring the rule of law throughout Libya, together with the full restoration of State control, including through a holistic security strategy built on united, professional and accountable security institutions.”

The UN Independent Fact-Finding Mission on Libya too has stressed that “ important institutional changes in the form of Security Sector Reform are vital for guarantees of non-recurrence of atrocities”, and that “it is essential to ensure that the Libyan State remains the sole legitimate holder of power through effective Security Sector Reform.”

At the domestic level, the 2015 Libyan Political Agreement, which attempted to unify Libyan State institutions, stressed the need for “security sector officials [to be] subject to civilian oversight and accountability in accordance with the Libyan legislations in force.” Moreover, in the context of the 2020 Libyan Political Dialogue Forum (LPDF), Libyan civil society organizations affirmed that:

Persons implicated in serious violations of international humanitarian and human rights law must be barred from holding high public office or senior positions in the security and justice sectors, nor should such persons be granted any position that may shield them from legal indictment.

Vetting should be performed, while ensuring transparency and due process for individuals considered for office. The disarming and dismantling of armed groups and enacting effective security sector reform through a structured law for security institutions, and a national strategy to implement it, including human rights vetting, are critical to prevent future violations.

The reform of the security sector, including the military, security forces and the intelligence services, should be an integral component of the ongoing constitutional reform and transitional justice processes in Libya.

For such reform to entrench the rule of law in the country, at a minimum, the following three paramount prerequisites must be realized:

i. Establishing effective civilian oversight over the military, security forces and the intelligence services;

ii. Guaranteeing adequate prior vetting of their members to exclude any individuals responsible for crimes under international law; and

iii. Ensuring that members of the security sector that are responsible for such crimes be held to account before ordinary civilian courts, in proceedings that fully respect international fair trial standards and exclude the death penalty.

2. Establishing effective civilian oversight over the security sector

International law and standards

The military, security forces and intelligence services should always ultimately be subject to civilian control exercised by a democratically-elected government. The UN Impunity Principles provide that, to entrench the rule of law and respect for human rights:

civilian control of military and security forces as well as of intelligence agencies must be ensured and, where necessary, established or restored. To this end, States should establish effective institutions of civilian oversight over military and security forces and intelligence agencies, including legislative oversight bodies.

The UN Human Rights Council has called upon States “to make continuous efforts to strengthen the rule of law and promote democracy”, including by ensuring that “the military remains accountable to relevant national civilian authorities.”

The UN Human Rights Committee has underlined the importance of ensuring civilian oversight over the military from a rule of law perspective, by expressing concern at “the lack of full and effective control by civilian authorities over the military and the security forces” in certain States, as well as “the lack of a clear legal framework, defining and limiting the role of the security forces and providing for effective civilian control over them.”

Libyan law

In Libya, a clear framework establishing civilian oversight over the military, security forces and intelligence services is needed to ensure compliance with international human rights law and standards.

The 2011 Libyan Constitutional Declaration, which functions as the country’s interim Constitution, is silent with respect to the question of regulating the military, security forces or intelligence services.

The 2017 Draft Constitution, on the other hand, envisages a certain degree of civilian control over these institutions. Article 177 provides that the armed forces are “subject to civilian authority”, and article 108 makes the country’s elected President their commander-in-chief.

According to article 178, the armed forces “shall support security apparatuses in accordance with the law”, which appears to mean that they may be involved in law enforcement and intelligence activities.

Furthermore, among other things, article 179 states that the police are a civilian body, and that its personnel shall receive human rights training. The status of the military is regulated by Law No. 40 of 1974; members of the armed forces are subject to the Military Penal Code and the Military Code of Criminal Procedure, and are generally subject to the jurisdiction of military tribunals.

The non-compliance of certain provisions of these laws with international law and standards will be discussed in sections 3 to 5 below.

Furthermore, Law No. 10 of 1992 on Security and Police regulates the status and powers of security forces; shortcomings of this Law will be analyzed in sections 3 and 4 below.

The 2017 Draft Constitution does not address the intelligence services. Law No. 7 of 2012, however, establishes the Libyan Intelligence Service (LIS) as a civilian agency subordinated to the “Head of the State”, which presumably means the elected President. Some of the provisions of Law No. 7 of 2012 fail to comply with Libya’s obligations under international human rights law.

For example, article 3 provides that, among others, the LIS’s tasks include to “[m]onitor suspicious activities hostile to Libya’s security”, and “intercept hostile activities carried out by countries and organisations that target national identity and the values and principles of society.”

This language is undefined and vague and, as such, open to abuse, potentially allowing the LIS to interfere in an illegitimate and unlawful manner with civil society organizations and with human rights work, in violation of, inter alia, articles 19, 21 and 22 of the International Covenant on Civil and Political Rights, which guarantee the rights to freedom of expression, to peaceful assembly, and to freedom of association, respectively.

Legislative undergird for such a potential for abuse is all the more concerning, particularly in light of the continuous repression of civil society and human rights work in Libya. On the other hand, Law No. 7 of 2012 provides that “the LIS shall conduct its activities in accordance with the law and in a way that ensures respect for human rights and fundamental freedoms. Activities thereof that violate such rights and freedoms shall not enjoy immunity” from investigation and prosecution; and that “the LIS shall conduct its activities in accordance with human rights and fundamental freedoms guaranteed and protected under the law.”

The inclusion of this language is an important development, yet actual compliance of the LIS with such provisions requires, in practice, effective monitoring by an independent and impartial body. Moreover, immunities from prosecution must not apply to LIS members.

Recommendations

In light of the above, the ICJ recommends to the Libyan authorities to:

Establish effective civilian oversight over the military, security forces and intelligence services, including by:

o Adequately defining their role in the Constitution and related legislative frameworks;

o Specifically limiting the role of the armed forces to matters related to national defence; and

o Setting up an independent and impartial mechanism to oversee the functioning of such institutions.

3. Ensuring adequate vetting of military, security forces and intelligence services members

International law and standards

Adequate prior vetting of members of the military, security forces and intelligence services is essential to entrenching the rule of law in Libya and preventing the reoccurrence of serious violations of international human rights law and IHL.

Accordingly, individuals who have allegedly committed such acts must not be recruited into the military, security forces and intelligence services; if they are already members of such institutions, they should be dismissed from them forthwith through processes that respect due process guarantees.

The UN Impunity Principles provide that:

Public officials and employees who are personally responsible for gross violations of human rights, in particular those involved in military, security, police, intelligence and judicial sectors, shall not continue to serve in State institutions.

Their removal shall comply with the requirements of due process of law and the principle of nondiscrimination.

Persons formally charged with individual responsibility for serious crimes under international law shall be suspended from official duties during the criminal or disciplinary proceedings.

Parastatal or unofficial armed groups shall be demobilized and disbanded. Their position in or links with State institutions, including in particular the army, police, intelligence and security forces, should be thoroughly investigated and the information thus acquired made public.

States should draw up a reconversion plan to ensure the social reintegration of the members of such groups.

The UN Human Rights Committee has also called on States “to ensure that persons involved in gross human rights violations are removed from military or public service.”

Libyan law

As mentioned above, several armed groups – which have filled the vacuum left by the State authorities throughout Libya – carry out arrests and detain individuals without any form of judicial oversight or accountability.

The same armed groups routinely subject detainees to serious violations and abuses of human rights and IHL, including extrajudicial killings, arbitrary detention, torture and ill-treatment, also through sexual and gender based violence.

The 2017 Draft Constitution does not include any vetting requirement regarding members of the military, security forces and intelligence services.

Law No. 40 of 1974 on Service in the Armed Forces prescribes that members of the armed forces must not have been convicted of “any felony unless he has been rehabilitated”, or “be subject to a disciplinary decision expelling him from public service.”

Law No. 10 of 1992 on Security and Police provides that the members of the police must have not be “convicted of any felony or misdemeanour of moral turpitude, even if [they] ha[ve] been rehabilitated.”

Law No. 7 of 2012 on establishing the Libyan Intelligence Service employs almost identical language with regard to LIS members.

Given that Libyan criminal law does not penalize certain crimes under international law (e.g., war crimes and crimes against humanity), or fails to define them in line with international law and standards (e.g., with respect to torture and enforced disappearance), the featuring of “felony” in the abovementioned Laws is not sufficient to ensure that persons allegedly responsible for serious violations or abuses of international human rights law and IHL be excluded from serving within the military, security forces or intelligence services.

In order to comply with international law and standards, the Libyan authorities must ensure adequate prior vetting of members of the military, security forces and intelligence services, particularly when armed group members are already integrated into such institutions or when their integration is envisaged. As further discussed below, prior vetting is also a guarantee of non-recurrence relevant to the Libyan transitional justice process.

Recommendations

In light of the above, the ICJ recommends to the Libyan authorities to ensure:

Adequate prior vetting of members of the military, security forces and intelligence services, particularly in the context of the integration of armed group members into such institutions, including by:

o Inserting in the Constitution provisions barring persons allegedly responsible for violations and abuses of international human rights law and IHL from service in the military, security forces and intelligence services; and

o Reviewing Law No. 40 of 1974 on Service in the Armed Forces, Law No. 10 of 1992 on Security and Police, and Law No. 7 of 2012 on establishing the Libyan Intelligence Service to include recruitment and membership requirements that exclude persons allegedly responsible for violations or abuses of international human rights law and IHL;