The Libyan government should take immediate steps to assume custody of all of the roughly 5,000 detainees still held by Libyan militias. The Defense and Interior Ministries have not been able to rein in the well-armed militias or to convince them to hand over detainees to Libyan authorities.
These detainees and the approximately 4,000 others already in state custody should be granted their full due process rights, Human Rights Watch said.
Under Law 38 on some special procedures, passed on May 2, 2012, the Interior and Defense Ministries were required to refer all “supporters of the former regime” currently detained by militias, if there is sufficient evidence against them, to the competent judicial authorities by July 12.
“Across Libya, thousands of detainees still languish in prisons run by militias, without a formal charge and without any prospect for legal review,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Despite months of cajoling the militias, the transitional authorities missed the deadline and failed to gain control over approximately 5,000 people still held arbitrarily by armed groups, some subjected to severe torture.”
The judicial police, the official body mandated to protect and provide services to detainees held under the authority of the Justice Ministry, told Human Rights Watch that it had gained custody of more than 3,000 detainees from militias. These people were being held in prisons in eight regions in Libya.
The judicial police have control of 26 facilities across the country, some of which are not in use. The exact number of people transferred to state authorities in recent months is not known because the government has no consolidated data. Some people detained over the past year by militias and state authorities have been released. Only a small number of people have been brought before a judge, have been charged, or have had their cases reviewed by the courts.
The state security apparatus has so far been unable to confront the well-armed militias across Libya that continue to hold many detainees the vast majority of them black Libyans and other African migrants. The authorities have also shown a lack of political will to challenge the armed groups that fought against Muammar Gaddafi, Human Rights Watch said. Both the Interior and Defense Ministries have shied away from using force. Law 38 is not clear on whether arbitrary detention is a criminal offense, nor is it clear on the possible consequences of holding people outside of the law.
The general prosecutor’s office told Human Rights Watch that the general prosecutor had convened committees under the Justice Ministry to screen detainees held in some of the militia-run prisons and prisons under the authority of the state. The committees are to decide whether the detainees will be prosecuted by the military or civilian authorities, or released. The military prosecutor confirmed the description of the process and said the biggest challenge was convincing the militias to hand over their detainees.
Human Rights Watch has reported extensively on torture and maltreatmentin detention facilities run by militias, sometimes resulting in death.
Most detainees are accused with no evidence of being Gaddafi security force members, former Gaddafi government officials, suspected Gaddafi loyalists, suspected foreign mercenaries, or migrants from other parts of Africa. Some have been detained for more than a year without being brought before a judge, as required by international law. Most have been denied access to lawyers, and in many cases, there appears to be no legal basis for their detention.
Libyan authorities should ensure that anyone detained in official custody has been brought before a judge and, if there is sufficient evidence, charged with a criminal offense, Human Rights Watch said. If not, they should be immediately released. All detention outside the law and abuse in detention, including by militias, should be treated as a criminal act.
The screening committees proposed by the General Prosecution should review the situation of all detainees held by militias speedily and with a clear time limit, and in any event their work should delay the requirement to bring all detainees promptly brought before a judge. Those charged with wrongdoing should be prosecuted in accordance with international due process guarantees, including immediate and ongoing access to legal counsel, Human Rights Watch said.
“There is no place for detention outside of the rule of law in the new Libya,” Whitson said. “The newly elected National Conference needs to take a stand to end these practices, and to create a justice system that works.”