Image Source: Ayman al-Sahili/Reuters
October 2019
REGION: Middle East and North Africa

In the United States Institute of Peace special report “Managing the Secure Release of Sensitive Detainees in Libya,” Fiona Mangan, Lillian Dang, and Nathaniel L. Wilson provide an overview of Libya’s current political climate, the situation of sensitive detainees, the shortcomings of domestic and international law regarding guidelines on the release of sensitive detainees, and lessons for Libya from case studies in other countries.

Since Libya’s revolution in 2011, Libya has struggled to regain order, maintain security, and uphold rule of law in a complex security environment. A variety of security sector actors that perform both policing and military security functions report separately to Libya’s Ministry of Justice, Ministry of Interior, and Ministry of Defense. In addition, a faction of the General National Congress, supported by militia groups, formed a governing body in Tripoli following the contested elections in 2014 and took control of some cities. In this context, Libyan prisons and informal detention centers continue to hold a number of sensitive detainees with suspected ties to the government of former leader Muammar Gadhafi or extremist groups. The report defines a sensitive detainee as “someone well-known locally or internationally who garners a lot of attention as a result of political or social offenses, either as an individual or due to his or her profile.” Releasing such individuals has the potential for violence, the degradation of peace, and the disruption of political negotiations. Therefore, extra precautions must be taken to ensure the safety of these individual and maintain peace.

Libya does have a law—the 2005 Prison Law or Law No. 5—that provides guidelines for the purpose of prisons, the treatment of prisoners during incarceration, and the services that should be provided post-incarceration. Despite a strong foundation created by the Prison Law, the concept of sensitive detainees was not present during the Gadhafi era, and therefore no provisions related to it exist in the law. However, several government actors, with the help of locals, have gone beyond the scope of this law to provide the secure release of detainees in some cases.

International laws and standards also contain gaps in regard to this issue. The United Nations has two documents—the Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) and the Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)—outlining standards related to the treatment of prisoners, yet they do not outline standards for the release of prisoners. The Geneva Conventions’ Additional Protocol II and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), however, do provide some guidelines. The former stipulates a state must take the necessary steps to guarantee the safety of those released during a non-international armed conflict. The latter requires a state to take steps to provide the verification of a release. Libya, however, has not ratified the ICPPED, and some have argued that the involvement of other countries at stages during the conflict in Libya have rendered the conflict international in nature, while the Geneva Conventions apply only to non-international conflicts. In addition, Libya is party to several international and regional human rights accords, including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the African Charter on Human and Peoples’ Rights, but none of them specifically mention guidelines for the release of detainees. Rather, they focus on the rights of individuals during and/or after incarceration.

The report offers several recommendations from the experience of previous cases of conflict in Afghanistan, Northern Ireland, and Timor-Leste. From the case of Afghanistan, the report recommends that Libya reestablish political unity, gain the buy-in of important affiliated actors and interest groups, and consider setting up safe houses for freed detainees. Next, from the case of Northern Ireland, the report recommends that the government at least encourage interagency communication or, at best, interagency groups that help manage the release of the detainees. And finally, from the case of Timor-Leste, the report recommends the establishment of a community reconciliation program based on the Timorese example, in the hopes of restoring peace in the community and preventing revenge attacks.

NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

Managing the Secure Release of Sensitive Detainees in Libya

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