Security sector’s accountability through civilian control and oversight
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.
4. Removing immunity from prosecution for crimes under international law
International law and standards
Immunities are exemptions from penalties, prosecution or lawsuits from which an individual who would otherwise be subject to them may benefit as a result of their official capacity when acting in the exercise of their duties, or of their status as a State official.
Under international law, Libya has an obligation to investigate, prosecute and punish, as warranted by the evidence, crimes under international law, including when committed by non-State armed groups, and provide redress to victims.
This obligation must not be frustrated by the granting of immunities in connection with an alleged perpetrator’s function or status.
The UN Impunity Principles provide that:
States should adopt and enforce safeguards against any abuse of rules such as those pertaining to … immunities … that fosters or contributes to impunity. … the official status of the perpetrator of a crime under international law – even if acting as head of State or Government – does not exempt him or her from criminal or other responsibility and is not grounds for a reduction of sentence.
The Human Rights Committee, the Committee against Torture and the African Commission of Human and Peoples’ Rights have affirmed that immunities are incompatible with obligations under their respective treaties.
Libyan law
Article 69(1) of the Libyan Penal Code provides that:
An act committed through the exercise of a right or the performance of a duty imposed by law or by a lawful order of a public authority shall not be subject to punishment. If an act which constitutes an offence has been carried out by order of authority, the public official who gave the order is responsible for that offence …
The above provision, which grants immunity to persons committing crimes pursuant to a legal duty, fails, in part, to comply with international law.
The second sentence of Article 69(1) is compliant to the extent that it does not shield from punishment public officials who have ordered or materially committed a crime. However, the first sentence is clearly not in line with Libya’s international legal obligations because it generally excludes criminal liability of public officials without envisaging an exception with respect to crimes under international law.
Moreover, article 36(2) of Libya’s Military Penal Code stipulates that “the use of weapons for the purpose of returning deserters to zones of active hostilities or to military units tasked with combat missions, stopping pillaging or vandalism, or executing service duties shall not be punishable, if such cannot be achieved without the use of weapons.”
This provision, which envisages an immunity from prosecution in relation to the employment of “weapons” by armed force members, may well be applicable to cases in which the use of force, which is unlawful pursuant to international law, may result in the injuring or killing of an individual.
The aims pursued by the use of potentially lethal force under this article, however, are too vague and undefined, particularly when referring to “stopping pillaging or vandalism, or executing service duties.”
Military personnel must employ potentially lethal force in accordance with international law, i.e., IHL when such force is used in connection with the conduct of hostilities, and international human rights law in the context of law enforcement operations.
Only lethal force employed in compliance with the strict requirements set by both bodies of law can be justified and as such lawful; any use of force that breaches such requirements must be prosecuted.
Immunities barring such prosecutions, including article 36(2) of the Libyan Military penal Code, violate international law and standards. Law No. 10 of 1992 on Security and Police provides that “… no investigation or criminal action procedure may be undertaken against the member of the police agency for any mistake he commits during the performance of his duties or due to the exercise of his functions unless by the written authorization of the [Minister of Justice].”
Such a broad immunity is incompatible with Libya’s obligation to investigate and prosecute crimes under international law, including those committed by State officials. Indeed, judicial authorities should be able to investigate alleged crimes committed by police members without having to request authorization from the Minister of Justice.
The same observations apply in relation to article 80 of Law No. 7 of 2012 on establishing the Libyan Intelligence Service, which stipulates: “ except in cases of flagrante delicto, no investigative action may be taken against any employee of the LIS with regard to a felony or a misdemeanour, except with the written permission of the Chief of the LIS.”
On the other hand, article 89 provides that “[t]he 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.”
Therefore, article 89 seems to bar immunities in connection with conduct with which article 80 is concerned if, in turn, such conduct discloses evidence of human rights violations, and by implication serious violations amounting to crimes under international law. If that interpretation were correct, Law No. 7 of 2012 would comply with international law and standards.
More clarity regarding the interaction between these two provisions, however, is necessary. Immunity from prosecution may also arise in connection to amnesties. Law No. 38 of 2012, for instance, provided a blanket amnesty for the “necessities of the 17 February Revolution in terms of military, security or civil acts carried out by revolutionaries to save or protect the revolution”, in contravention of Libya’s obligations under international law.
Amnesties may also be granted under Law No. 29 of 2013 on transitional justice, although the criteria for the granting of such amnesties are undefined.55 To comply with international law and standards, such criteria must be clearly defined in law.
In particular, amnesties may not be granted for crimes under international law and cannot prejudice the rights of victims and their families to truth and to an effective remedy and reparation.
The lack of any such criteria in Law No. 29 of 2013 leaves open the possibility that amnesties be awarded in violations of Libya’s obligation to investigate, prosecute and punish crimes under international law.
Recommendations
In light of the above, the ICJ recommends to the Libyan authorities to:
- Include in the Constitution a provision excluding immunity from investigation, prosecution and punishment of public officials, including members of the military, security forces and intelligence services, who are allegedly responsible for crimes under international law;
- Amend the Penal Code, the Military Penal Code, and Law No. 10 of 1992 on Security and Police to provide for the criminal liability of public officials, including military personnel and police officers, responsible for a crime under international law in the performance of their duties, and expunge any provision that could grant immunity from investigation, prosecution and punishment for such crimes;
- Amend Law No. 7 of 2012 to better clarify that no immunity applies to LIS members allegedly responsible for crimes under international law; and
- Amend Law No. 29 of 2013 on transitional justice to ensure that amnesties do not include crimes under international law in their scope of application, and do not prejudice the rights of victims and their families to truth and to an effective remedy and reparation.
5. Excluding the jurisdiction of military tribunals over crimes under international law
International law and standards
Under international law, military tribunals should not have jurisdiction to try and adjudicate crimes under international law committed by armed force members, particularly when the victims include civilians.
In this respect, the UN Impunity principles provide that:
The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.
Military tribunal should never have jurisdiction to try and adjudicate serious violations of international human rights law and IHL, including crimes under international law. Military tribunals should try and adjudicate only “offences of a purely military nature committed by military personnel.”
The notion of what constitutes “specifically military offences” should be interpreted narrowly and be restricted to “infractions strictly related to their military status”, including “disciplinary” offences. In addition, when adjudicating such matters, military tribunals must in any event fully comply with international fair trial standards.
Libyan law
The 2017 Draft Constitution provides that “ the military judiciary shall be the judiciary competent to review military offences committed by military personnel in accordance with the procedures defined by law, in a manner that ensures fair trial. This shall include the right to appeal at cassation as specified by the law.”
While this provision incorporates some of the requirements prescribed under international law and standards, it fails to expressly exclude crimes under international law from the jurisdiction of military tribunals.
Military tribunals in Libya have jurisdiction to try and adjudicate ordinary offences under the Libyan Penal Code when committed by armed force members, e.g., murder, as well as socalled “military crimes” envisaged under the Military Penal Code, such as “ killing or harming wounded persons”, “abandoning wounded persons”, or “pillaging.”
Given that, when criminalized under Libyan criminal law, crimes under international law are characterized as “ordinary offences” or “military crimes”, it follows that military tribunals have jurisdiction to try and adjudicated such crimes when committed by armed force members, in violation of international law and standards.
On the other hand, ordinary civilian courts are “competent to try military personnel who assist civilians” in the commission of punishable offences.
This may be interpreted in the sense that civilian courts are competent to try armed force members when they aid or abet, or otherwise provide assistance in, the commission of an offence, whose principal perpetrator is a civilian.
While such a provision is a positive step forward, the Military Penal Code and the Military Code of Criminal Procedure should guarantee that ordinary civilian courts be competent to try all serious violations of international human rights law and IHL.
Recommendations
In light of the above, the ICJ recommends to the Libyan authorities to:
- Include in the Constitution a provision that expressly excludes the jurisdiction of military tribunals to try and adjudicate serious violations of international human rights law and IHL, including crimes under international law;
- Amend the Military Penal Code, the Military Code of Criminal Procedure and any related laws to:
o Transfer the competence to try and adjudicate crimes under international law from military tribunals to ordinary civilian courts;
o Limit the jurisdiction of military tribunals to specifically military offences committed by armed force members that do not constitute human rights violations; and
- Ensure that military tribunals, when trying and adjudicating offences under their jurisdiction, comply with international fair trial standards.
6. Strengthening guarantees of non-recurrence under the transitional justice process
International law and standards
Guarantees of non-recurrence are a form of reparation that aims to prevent the future occurrence of serious violations and abuses of international human rights law and IHL.
According to the UN Impunity Principles, the aim of these measures is to ensure that “victims do not again have to endure violations of their rights”; to that end, guarantees of nonrecurrence should include “institutional reforms and other measures necessary to ensure respect for the rule of law, foster and sustain a culture of respect for human rights, and restore or establish public trust in government institutions.”
Moreover, as any other form of reparation, guarantees of non-recurrence need to be implemented in a gender-sensitive manner, meaning that they “must be based on a diagnosis of the relationship between pre-existing gender inequality and sexual and gender-based violence, with a view to their eradication.”
In that respect, guarantees of non-recurrence should be transformative, namely “aspire to subvert the pre-existing structural inequality that may have engendered” sexual and gender-based violence.
Establishing civilian oversight over the military, security forces and intelligence services, and ensuring adequate prior vetting of their members (or prospective members), are guarantees of non-recurrence, and should be an integral part of the Libyan transitional justice process.
To be gender-responsive, guarantees of non-recurrence should, among other things, focus on preventing the future commission of sexual and gender-based crimes by members of such forces. Libyan law Law No. 29 of 2013 on transitional justice does not list guarantees of non-recurrence as a form of reparation.
Some provisions of the Law deal with legislative and institutional reform, specifically with regard to the Law’s objectives to repeal “unjust laws that violated human rights and allowed for tyranny in the country” and “reformation of state institutions.”
Moreover, the Fact-Finding and Reconciliation Commission is tasked, among other things, to “… review legislation related to the issue of transitional justice”, and “work to repeal unjust laws and restore proper legal life, in accordance with the constitution and with Sharia law.”
While Law No. 29 of 2013 makes reference to “reformation of state institutions”, this is insufficient to specifically address the question of establishing civilian oversight and adequate prior vetting (as described above in section 3), including exclusion from service of members of the military, security forces and intelligence services, who are allegedly responsible for crimes under international law, including sexual and gender-based crimes.
Recommendations
In light of the above, the ICJ recommends to the Libyan authorities to:
- Amend Law No. 29 of 2013 to ensure that guarantees of non-recurrence form part of the reparation measures under the Law, including by establishing civilian oversight over the military, security forces and intelligence services, and by ensuring adequate prior vetting of their members;
- Ensure that guarantees of non-recurrence, including civilian oversight and prior vetting, be designed and implemented in a gender-sensitive manner.
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