Libya in the Chair, but can it rest easy?

The Chairperson’s integrity is not in question; but Tripoli must demonstrate faith in human rights norms

ON 20 January 2003 Libya  was confirmed as this year's Chair of the Commission on Human Rights (CHR). The nomination was made by the African Union and the selection made for the first time, at the request of the United States, by secret ballot of its members.

To say that Libya's appointment has been met with scepticism, in particular in the North, would be a gross understatement. The accusations have been forcefully made that Libya only got the Chair because Colonel Mu'ammar Qadhafi "swapped pan-Arabism for pan-Africanism"  and 'bankrolled' the African Union and its members.  On the first day of the 59th session, the France-based NGO, Reporters Without Borders, was suspended for throwing leaflets in the Assembly Room criticising Libya's record on human rights, calling Libya's appointment a "sick joke".

The Chairperson herself, Ms Najat Al-Hajjaji, has been posted at the Permanent Mission of Libya to the UN in Geneva in various capacities since 1992. She was Rapporteur for the Main Committee at the World Conference Against Racism in Durban 2001. She also held the position of Vice-Chair on behalf of Libya in 2001. In her opening statement to the CHR she said: "I will be a Chairperson to all members of the Commission, to all Observer States, to the NGOs, and to all who will participate in this session". The integrity of the Chairperson herself is not in question.

The US has been the most vocal opponent of Libyan chairmanship on the grounds of the Government's poor human rights record.  In the US State Department Report 2002, the Libyan Government is described as a "dictatorship". In a veiled reference to Libya, Jeanne J. Kirkpatrick, head of the US delegation to the CHR, told the High Level segment of the 59th session that "[t]he practice of electing the Commission members from some of the world's worst human rights offenders is especially serious".

After the CHR vote, Phil Reeker, of the US State Department, suggested that there should be "substantive qualifications for participation in the UN Commission on Human Rights, rather than some rotational scheme or vote-trading". The Swiss delegate, Federal Councillor Minister of Foreign Affairs Micheline Calmy-Rey, speaking at the High Level Segment, also suggested that election to the CHR might be reserved to those who are committed to the CHR mechanisms.

However, the fact is that even with an unprecedented 'recorded vote' the US failed to overturn Libya's chair. The only countries who joined them in voting against Libya were Canada and, reportedly, Guatemala; although one might argue the implicit support of the 17 other, mainly northern, states who abstained.

The reality is that some of Colonel Qadhafi's fiercest critics of yesteryear no longer consider him to be the 'pariah' he once was, and feel that now is the time to start to heal old wounds.

The United Kingdom, for example, has steadily been improving relations with Libya after a break of many years in diplomatic relations. Britain re-opened its embassy in Tripoli in 1999 and in August 2002 a UK Foreign Office Minister, Mike O'Brien, is reported to have met Colonel Qadhafi in Libya. A joint British Council and Foreign and Commonwealth Office project in Tripoli is to help re-establish links between Libyan and UK legal associations and institutions and, among other things, to address the "limited attention given to international and human rights law". 

While the UK Government has expressed the need for Libya to respect human rights, it takes the pragmatic view that Libya will "use this high profile role to take steps to improve its human rights record". There has been some support from other quarters for what might be called the 'spotlight of publicity' approach. The UK position is in stark contrast to the 1980s and 90s, when the West considered Libya a "state sponsor of terrorism"; or, in today's parlance, a 'rogue state'. Towards the end of the 1990s, however, there were signs that Colonel Qadhafi was taking conciliatory steps towards the international community. The question is whether Libyan assurances of improvements to human rights are illusory or real.

Libya's record of ratifications of international human rights treaties is commendable.  It has signed all six major UN human rights instruments and was the first signatory of the African Charter of Human and Peoples Rights to submit its periodic report to the African Commission.  It  is not, however, a party to the Rome Statute.

However, over the past 10 or more years, Amnesty International (AI) and Human Rights Watch (HRW) have consistently reported a range of human rights violations in Libya. The record of civil and political rights is particularly poor; reports include, extra-judicial and summary executions by state agents, arbitrary arrests and long-term detention without trial, systematic use of torture and other ill-treatment, imposition of the death penalty for offences that cannot be characterised as the most serious including political and economic offences, lack of judicial independence, lack of freedom of movement, restrictions in law and practice on freedom of expression including the right to express opposition or criticism of the Government.

In August 2002, on the 32nd anniversary of the revolution (1969), Qadhafi International Foundation for Charity Association published a list of 107 released prisoners.  According to AI, over 20 of these men had been detained since 1984. More political prisoners were released in mid-September. While such actions are significant, the motivation behind such releases should be questioned, in particular, when according to AI "hundreds" of political prisoners remain in detention, many without charge or trial. Nor should it be overlooked that as recently as March 2002, the trial began of some 150 professionals, most reported to have been arrested in June 1998, accused of sympathising with the Libyan Islamic Group. 

On Libya's second periodic report to the Committee Against Torture (1995) the Committee expressed concern with regard to continued reports of torture and incommunicado detentions.  On Libya's third periodic report to the CHR (October 1998), the Committee reported that it was, among other things, "deeply concerned over persistent allegations of systematic use of torture and cruel, inhuman or degrading treatment or punishment".  The Committee also recommended that the Government fully, publicly and impartially investigate all allegations of extra-judicial, arbitrary or summary executions perpetrated by State agents. 

In September 1998 the Special Rapporteur for Torture wrote to the Libyan Government to advise it of information received on "methods of torture and other forms of ill-treatment" reportedly applied to detainees during interrogation.  In the same letter, the Special Rapporteur advised that he had received information concerning the death in custody of several political detainees, allegedly the result of torture and other ill-treatment.

And as recently as January 2003, it was reported that six Bulgarian and Palestinian nurses and doctors awaiting trial in Tripoli allege being subject to three months of torture to extract confessions, including electric shocks, beatings with cables and sleep deprivation.

In truth, however, it remains difficult to obtain up to date, accurate and detailed information with regard to the human rights situation in Libya. This is perhaps telling in itself. Nor is Libya on the list of counties who have extended a standing invitation to the Thematic Special Procedures of the UNCHR. According to AI, freedom of expression remains "severely restricted".  Political parties and criticism of the political system remain prohibited. The national media is still strictly controlled by the Government.

International Federation for Human Rights reported in 2002: "There is absolutely no scope for freedom of opinion, thought, assembly and association... The government has subjected opponents within the country and abroad, as well as their families and relatives, to harassment, pressure, threats and physical liquidation, in addition to the widespread resort to the demolition of houses as a form of reprisal." 

The US State Department Report 2002 describes "a multilayered, pervasive surveillance system that monitors and controls the activities of individuals. The various security forces committed numerous serious human rights abuses."

Again, the CHR itself has previously expressed its concern over the numerous restrictions, in law and practice, on the rights of freedom of expression.  In 1998 the CHR's recommendations included urgent steps to allow the free operation of independent non-governmental human rights organisations.

To conclude, given the totality of the evidence available, it is difficult to suggest that the systematic and gross violations of human rights reported in Libya, by the CHR and others, have ceased or are being remedied.  The CHR awaits Libya's fourth periodic report, due in October 2002 but is yet to be reported as submitted.

Moreover, there is concern that the leadership of the Government in Libya has not changed since its involvement in state-sponsored terrorism, in particular during the 1980's: such acts include, the murder of WPC Yvonne Fletcher outside its mission to London in 1984; alleged Libyan Government assistance to terrorist attacks at airports in Rome and Vienna in 1985, in which 19 people were killed; Libyan Government involvement in the UTA airliner bombing in September 1989 in which 170 people died; Libyan secret service planning of the 1986 bombing of the La Belle disco in Berlin, Germany, in which two US soldiers and a Turkish woman were killed, and more than 230 others injured;  and the Libyan backed bombing in 1988 of the Pan American flight over Lockerbie, Scotland, that claimed 270 lives.

For a State to be directly implicated in deliberately and systematically targeting civilians betrays a total disregard for humanity and the norms of international human rights law; the very antithesis of the CHR mandate.

It is worth reflecting that the original purpose of the CHR was "the promotion of human rights".  It is now the primary forum for human rights worldwide. It represents the commitment of the governments of the world to make the abstract principles of international human rights norms a reality. Thus, the actions of the CHR reflect the moral and legal authority of these norms in the eyes of the world.

On Libya's election, Hassuna al-Shawsh, a Libyan Foreign Ministry spokesman, said: "It shows world recognition that Libya has a clean sheet with regard to human rights."  As Bill Rammell on behalf of the UK stated in the High Level segment: "Most governments - if not all - are guilty of some transgressions". No government in the world can make claims to have a "clean sheet". The Libyan Foreign Ministry statement will lead to the questioning of Libya's motives in chairing the CHR. Is the Government primarily concerned with promoting and protecting human rights, or in promoting a perception of Libya as a tool in international relations? 

There is a general principle of law which is relevant here; that is, justice must not only be done, but it must also be seen to be done. The integrity of Ms Al-Hajjaji is not in question, but the danger is that the presence of a Libyan representative in the Chair will in itself undermine the purpose of the CHR and confuse its message. In the words of the Swiss delegate, Micheline Calmy-Rey, in the High Level segment, the CHR's "credibility is at stake", in the eyes of governments and the peoples of the UN who are the "ultimate recipients".

And in a post 9-11 world credibility is something which international human rights law can ill-afford to lose. If the credibility of the CHR is to be protected Libya needs to openly demonstrate good faith in the implementation of international human rights norms domestically. The minimum starting point should be to promptly submit its fourth periodic report to the CHR and to extend a standing invitation to the thematic special procedures of the CHR.