(Tripoli)– Abdallah Sanussi, the long-time intelligence chief for
Muammar Gaddafi, told Human Rights Watch in a prison visit on April 15,
2013, that he has not had access to a lawyer or been informed of the
formal charges against him during almost eight months in Libyan
detention. He did not complain of physical abuse and said his conditions
in custody have been “reasonable.”
Libyan authorities have accused Sanussi of serious crimes during his
many years as Gaddafi’s senior security official, including involvement
in the
1996 Abu Salim prison massacre
in which roughly 1,200 prisoners were killed. He is also wanted by the
International Criminal Court (ICC) for crimes against humanity for his
alleged role in trying to suppress the 2011 uprising that led to
Gaddafi’s overthrow.
“
Libya’s wish to put the people they hold responsible for gross human rights violations on trial is fully understandable,” said
Sarah Leah Whitson,
Middle East and North Africa director at Human Rights Watch. “But to
achieve true justice, they need to give Sanussi the rights that the
previous government denied Libyans for so long. To start, that means
making sure he can consult a lawyer.”
The Libyan government should immediately ensure that Sanussi has full
access to a lawyer of his own choosing, whether a Libyan lawyer or one
from abroad, and formally notify him of the charges he faces in Libya,
Human Rights Watch said. The authorities should also allow visits by
lawyers authorized to represent Sanussi before the International
Criminal Court.
Human Rights Watch interviewed Sanussi in the al-Hadhba Corrections
Facility in Tripoli, a newly renovated facility holding several senior
Gaddafi-era officials, where he has been held since his extradition from
Mauritania in September 2012. The visit, the first to Sanussi by an
international human rights group, was facilitated by Justice Minister
Salah Marghani and the acting head of the detention facility.
Prison authorities permitted Human Rights Watch to interview Sanussi
privately, with no prison staff or other officials in the room.
Justice Minister Marghani told Human Rights Watch after the visit that
“Sanussi has the right to a defense lawyer of his choice like any other
person standing trial.” He said that so far no Libyan lawyer had taken
on the case. A foreign lawyer with permission to practice in Libya could
also represent Sanussi, Marghani said.
Marghani assured Human Rights Watch that “Libya is committed to provide
a fair trial,” adding that Libyan law says that “no trial should take
place without the presence of a defense lawyer.”
Despite the challenges, the Libyan government should facilitate
immediate and ongoing access to a lawyer of Sanussi's choosing,
including a government-appointed lawyer if Sanussi fails to appoint one
on his own, Human Rights Watch said.
On June 27, 2011, during the Libya conflict, the ICC judges issued arrest warrants for
Sanussi, Muammar Gaddafi and Saif al-Islam Gaddafi, Muammar Gaddafi’s son, who is currently
detained in Zintan.
The three were wanted for crimes against humanity for attacks on
civilians, including peaceful demonstrators, in Tripoli, Benghazi,
Misrata, and other locations in Libya. The ICC warrants apply only to
events in Libya beginning on February 15, 2011. While the ICC's
proceeding against Muammar Gaddafi was terminated following his death in
October 2011, the arrest warrants for Sanussi and Saif al-Islam Gaddafi
remain in force.
If a concerned country wishes to try an ICC suspect domestically for
crimes in an ICC arrest warrant, the authorities may challenge the
court's jurisdiction over the case through a legal submission called an
“admissibility challenge.” On May 1, 2012, Libya challenged the
admissibility of the ICC's case against Saif al-Islam Gaddafi, and on
April 2, 2013, it challenged the admissibility of Sanussi’s case. It
will be up to ICC judges to decide if national proceedings exist that
meet the criteria for a successful challenge.
Libya should cooperate fully with the ICC, as required by UN Security
Council resolution 1970, which authorized the ICC investigation, Human
Rights Watch said.This cooperation includes abiding by the ICC’s
decisions and requests, as well as adhering to the court's procedures.
In any domestic proceedings, Libya will face steep challenges in
ensuring security for the judges, prosecutors, lawyers and witnesses
involved in the case, especially those supporting the accused, Human
Rights Watch said. A vigorous and effective defense is a crucial fair
trial right.
At all times Libya is required by human rights standards to respect the
basic rights of detainees, and anyone facing a criminal trial,
including the right of access to a lawyer.
International standards, including the International Covenant on Civil
and Political Rights, the African Charter on Human and Peoples’ Rights,
and the United Nations Basic Principles on the Role of Lawyers, require
providing defendants with prompt access to a lawyer, meaning no later
than 48 hours after their 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.
Human Rights Watch has previously
reported
on the challenges facing the Libyan judicial system, including abuse in
custody, denied access to lawyers, and the lack of judicial reviews.
Sanussi was the brother-in-law of Muammar Gaddafi and his long-time
head of intelligence. He is accused of involvement in serious human
rights violations during Gaddafi’s rule, most prominently the June
1996 Abu Salim prison killings.
Prisoners who were at the prison at that time but who survived told
Human Rights Watch that Sanussi was the government’s chief negotiator
with the inmates, and that he promised them safe treatment prior to the
killings.
In 1999, Sanussi was convicted in absentia and sentenced to life in
prison in France for his part in the 1989 bombing of a passenger jet
over Niger.
“The treatment of Sanussi is a major test for the new Libya,” Whitson
said. “Will the new Libyan state treat him fairly and show that it is
now committed to and governed by the rule of law?”
Prison Visit to Sanussi
Legal Counsel
The April 15 visit to Sanussi took place in the director’s office of
the al-Hadhba Corrections Facility, without any officials present, and
lasted 30 minutes. The facility is in the al-Hadhba military academy in
Tripoli and is administered by the judicial police under the authority
of the Justice Ministry.
Sanussi, who wore a long white tunic over white trousers, a traditional
Libyan garment, said he had no complaints about his treatment and
conditions except that authorities did not permit him to leave his cell
to exercise. The acting head of the facility, Mohamed Gweider,
subsequently told Human Rights Watch that he would allow Sanussi to
exercise in the open air for one hour each day.
Sanussi’s main complaint was lack of access to a lawyer since his
extradition in September 2012. “I asked for a lawyer on the second or
third day after my arrival here in Libya,” he told Human Rights Watch,
adding “I haven’t seen or spoken with a lawyer yet.”
Under Libya’s code of criminal procedure, the state must allow a
detainee access to a lawyer during an investigation if the person asks
for one. If the detainee does not have or cannot find a lawyer, the
Libyan authorities are required under international law to assign him a
lawyer, without fee if the person cannot afford it.
Sanussi also complained that authorities had not told him the precise
charges that he faces in Libya. He said he is aware that he is wanted
for serious crimes at the ICC from media reports he saw prior to his
arrest. “I am ready to face these charges,” he told Human Rights Watch.
International law requires anyone facing a criminal proceeding “to be
informed promptly and in detail in a language he understands of the
nature and cause of the charge against him,” so that the person can
prepare a defense.
Sanussi said he was not aware of having legal representation for the
proceedings against him at the ICC. “I don’t know about a lawyer who
represents me in The Hague,” he said. “I haven’t seen or spoken to
anyone.”
On January 15, the ICC provisionally acknowledged the
appointment of a London-based lawyer as counsel for Sanussi. On February 6, the ICC judges
asked
Libya to arrange a privileged visit between Sanussi and his defense
team before the ICC but, as of April 16, no meeting had taken place.
Regarding access to a lawyer, Gweider said that Sanussi is “free to
bring a lawyer if he wants,” although he said that it will probably be
difficult to find a Libyan lawyer to represent him.
In its
submission to the ICC
on April 2, Libya said it “remains keen to facilitate a privileged
legal visit to Abdullah al‑Sanussi by his lawyer and wishes to conclude a
Memorandum of Understanding with the ICC as soon as possible for this
purpose.” Libya attributed the delay to its recent replacement of the
general prosecutor and said it would address the issue of legal access
for Sanussi “as a matter of priority.” Sanussi’s lawyers before the ICC,
however,
argue
that Libya has ignored the ICC judges’ order requiring arrangements to
be made for a visit by the lawyers engaged to represent him.
On March 20, Abdul Qader Juma Radwanreplaced Abdelaziz al-Hasadias Libya’s General Prosecutor.
Sanussi said that he has been taken before a judge about once a month
to review his detention. Each time the judge has extended the detention,
he said. “During these sessions, I have asked the judge to let me see
my family and I have asked for a lawyer,” Sanussi said.
The former intelligence chief said that Libyan investigators had
questioned him mainly during the first five months of his detention, and
that their treatment of him had been “reasonable.”
Sanussi also complained about limited family visits. He said he had
received only one family visit during his almost eight months in
detention, by his daughter Anoud, who is also detained in Libya. Asked
about this, Gweider confirmed that he had denied two family visits on
security grounds.
Arrest Details
Sanussi provided hitherto unknown details of his arrest and transfer to
Libya. He said Moroccan authorities had arrested him in March 2012 and
then detained him for about 12 days before putting him on a plane to
Mauritania, where he was handed over to Mauritanian authorities upon
arrival, on March 17.
He said the Mauritanian authorities held him in a military academy and
also a house in the capital, Nouakchott, where they interrogated him and
also allowed officials from Saudi Arabia, Lebanon and the United States
to question him. US officials, who Sanussi said were from the FBI, had
access to him twice. He said his treatment throughout was “reasonable”
and that the Mauritanian authorities allowed him access to lawyers, as
well as some family visits.
On September 5, Mauritanian authorities transferred Sanussi to Libya.
He said they woke him around 7 a.m. and told him he was meeting
Mauritania’s head of intelligence, but instead took him to the airport
and flew him to Tripoli. He has been held at the al-Hadhba facility
since his return.
Human Rights Watch is unable to independently verify Sanussi’s account
of his detention in Morocco or Mauritania, or his transfer to Libya.
Detention Conditions
Human Rights Watch viewed Sanussi’s cell, measuring approximately three
by four meters. It had one small window high up on a wall, which was
closed. The cell contained a small bathroom with toilet, sink and
shower, and there was a mattress on the floor for sleeping, with
blankets and pillow. Plastic bags propped against the wall contained
Sanussi’s clothes and foodstuffs.
The al-Hadhba correctional facility currently has 144 inmates, all of
them men, including Sanussi and a number of other former high-ranking
officials, Gweider told Human Rights Watch. Roughly half the detainees
are alleged to have been involved in the 1996 Abu Salim prison massacre,
but the cases of those accused of those crimes have not yet reached the
prosecution stage. They are being held in an adjacent facility under
the authority of the National Guard and supervised by Gweider.
Gweider said he and other officials face great pressure from Libyans
who harbor intense anger at Sanussi and other former Gaddafi officials
for the killings, disappearances and torture committed by the previous
government during its four decades in power. “Despite this, we want to
be different,” he said. “We want to show them that we are not like them,
so we try to treat them better.”
Gweider said that he had ordered the removal of several guards from the
al-Hadhba facility after upholding a prisoner’s complaint against them.
Security is a major concern at the prison, Gweider told Human Rights
Watch. “There is always the fear that we could be targeted because of
whom we’re safeguarding,” he said. “We are exposed to danger at all
times.”
HRW.