Libya: Ensure Gaddafi Son’s Access to Lawyer

(Tripoli) – Libyan authorities appear to be holding Saif al-Islam Gaddafi in good physical conditions but should allow him immediate access to a lawyer, Human Rights Watch said today.

Human Rights Watch visited Gaddafi in Zintan, Libya on December 18, 2011. Libya’s general prosecutor, Abdelaziz al-Hasadi, who is investigating Gaddafi’s case, granted permission for the visit. The Zintan Military Council, which has physical custody of Gaddafi, allowed Human Rights Watch 30 minutes with the detainee in private.

“Saif al-Islam Gaddafi says he is getting good food and medical care – he had no complaints about the physical conditions of his detention,” said Fred Abrahams, special adviser at Human Rights Watch, who conducted the visit. “His main concern was the lack of access to family and to a lawyer who can help his case.”

Al-Hasadi told Human Rights Watch that he would allow Gaddafi access to a lawyer as soon as the government prepared a secure detention facility in Tripoli where Gaddafi could be held without risk of attack, either by those wishing to free him or by those wishing him harm. The prosecutor’s office is working to prepare such a location, he said.

Under Libya’s code of criminal procedure, the state must allow a detainee access to a lawyer during investigation if he or she asks for one. Special laws enacted during Muammar Gaddafi’s rule allow restrictions on access to a lawyer, but these restrictions are inconsistent with Libya’s transitional Constitutional Declaration, which entered into force on August 3, 2011. The declaration also provides for a “fair trial at which [the accused] has the guarantees necessary for exercising his right of defense.”

“The security conditions are no doubt tenuous, but the government can and should find a way to ensure Saif al-Islam legal representation in Zintan,” Abrahams said. “The new Libya is about respecting the rights of all detainees. The world is watching how Libya handles this case, and Libya should prove that it will grant Gaddafi all the rights that were too often denied in the past.”

International standards, including the United Nations Basic Principles on the Role of Lawyers, require giving defendants prompt access to a lawyer, no later than 48 hours after arrest. The Basic Principles state that detainees shall have “adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.”Libya’s Constitutional Declaration acknowledges the central role of international human rights treaties.

The International Covenant on Civil and Political Rights (ICCPR), which Libya ratified in 1970, states that anyonefacing criminal charges has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” The ICCPR also requires Libya to ensure that anyone detained is brought promptly before a judge or equivalent.

Speaking comfortably in English in a private setting, Gaddafi said he had no complaints about his physical treatment by his captors, both those who apprehended him outside of Obari in southern Libya on November 19 and those holding him in Zintan.

“The treatment is okay; at least I’m in my own country,” he said. “There is no torture or anything like that.”

Gaddafi told Human Rights Watch that he was seeing a doctor every week. About three weeks ago he had an operation on the thumb and two fingers of his right hand. The hand was injured in a NATO strike about two months ago in the Zimzim Valley near Bani Walid, which killed 26 members of his convoy, he said.

His main complaint was what he called his “total isolation” from the outside world. He has not been allowed to speak with or receive visits from any family or friends. He would like such a visit to help him arrange for a lawyer for his defense, he said.

Al-Hasadi and members of the Zintan Military Council said contact with family and friends was not possible at this time due to security concerns. However, the UN Standard Minimum Rules for the Treatment of Prisoners say all prisoners are to be allowed regular contact with family and friends, both in correspondence and through personal visits. Some restrictions are permitted for security reasons, but these need to be the minimum necessary concerning the particular individual, and should not amount to a complete ban.

Gaddafi said he has access to some books, but not to newspapers, television, or radio. Human Rights Watch said the authorities should find ways to provide access to media without compromising Gaddafi’s security. The UN Standard Minimum Rules state that prisoners are to be kept informed of current events and important items of news.

Gaddafi said the general prosecutor and a host of Libyan government officials had visited him. The International Committee of the Red Cross said it visited Gaddafi on November 22, 2011.

The International Criminal Court (ICC) has issued an arrest warrant for Saif al-Islam Gaddafi for crimes against humanity committed in Libya starting on February 15. The ICC investigation was authorized under United Nations Security Council Resolution 1970. The resolution requires Libya to cooperate with any ICC investigation into serious crimes committed in Libya, including the surrender of ICC suspects.

Libya’s general prosecutor, as well as the justice minister, prime minister, and chairman of the National Transitional Council (NTC), all told Human Rights Watch that they are determined to try Gaddafi in Libya. The Libyan government has hired a law firm in London to represent its interests before the ICC, senior officials said.

If Libya wishes to try Gaddafi domestically for crimes within the ICC’s arrest warrant, it must challenge the ICC’s jurisdiction through a legal submission to the court. Libya would have to show that it is genuinely able and willing to prosecute Gaddafi’s case in fair and credible proceedings. In addition, the Libyan proceedings must encompass the same conduct as in the case before the ICC. The ICC judges would review the challenge and determine whether the Libyan proceedings make it unnecessary for the ICC to hear the case.

If Libya argues that surrendering Gaddafi to the ICC would interfere with an ongoing domestic investigation or prosecution for a different case, thenit may postpone surrendering him for a period of time agreed upon with the court.

Al-Hasadi told Human Rights Watch that his office had opened an investigation into alleged corruption-related crimes committed by Saif al-Islam Gaddafi before this year’s conflict began. In addition, the prosecutor said he would investigate alleged crimes committed by Gaddafi during the 2011 conflict.

On what basis the Libyan authorities will proceed remains unclear. In a decision by the ICC Pre-Trial Chamber on December 6, the judges noted that the chamber had received, through the ICC Office of the Prosecutor, a letter allegedly from the NTC. Referring to article 94 of the ICC treaty, the letter said the NTC will postpone the execution of the ICC’s request for the arrest and surrender of Saif al-Islam Gaddafi, and that it would discuss the matter with the court. Article 94, unlike the ICC treaty’s provisions on the admissibility of a case, provides for postponing the execution of a request in light of ongoing investigation or prosecution.

The ICC judges, in their December 6 decision, requested further information from the Libyan authorities regarding Gaddafi’s status, including whether and when Libya intends to surrender him to the court. Libya has until January 10, 2012, to file submissions on the issues outlined by the ICC judges.

In the interview with Human Rights Watch, Gaddafi provided some details about his apprehension outside of Obari.

“I was going to meet a doctor in the south for my hand, for an operation,” he said. “The hand was in very bad shape.” Forces from Zintan learned about the trip and made the arrest, he said. He was treated well during the arrest and subsequent transfer to Zintan, he said.

Gaddafi also confirmed that a NATO strike in late April had killed his brother Saif al-Arabi, as well as one guard. He said NATO had targeted his family’s house in the Gharghur neighborhood of Tripoli because his father had used the house to meet Libya’s foreign minister and former intelligence chief Musa Kusa, who later defected. Two grandchildren of Muammar Gaddafi were also killed, Saif al-Islam Gaddafi said, but that was in another strike.

“Saif al-Islam Gaddafi deserves his due process rights, and so too do the more than 8,000 other people in detention across Libya without access to a lawyer,” Abrahams said. “They should be properly investigated and brought as soon as possible before an independent judge.”