International Human Rights Day marks the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. This year’s theme honours the 50th anniversary of the adoption of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, and focuses on rights and freedoms. In light of this theme, LFJL would like to call attention to the need for a comprehensive legal framework that protects the absolute right to be free from torture in Libya, including in the future constitutional document.
Torture and ill-treatment have been perpetrated with total impunity in Libya for generations, and the proclaimed intentions by successive governments to eradicate it have failed in practice. The constitutional drafting process offers an opportunity for the Libyan state to enshrine human rights guarantees, including anti-torture protections, at the highest level, in order to guarantee their implementation. Libya’s international treaty obligations require the state adopt comprehensive measures to ensure that the crime of torture and other ill-treatment is absolutely prohibited. Despite acceding to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1989, Libya’s national legal framework does not meet UNCAT’s requirements.
In December 2014, the Constitutional Drafting Assembly (CDA) published a set of constitutional recommendations for the future constitution. LFJL and REDRESS undertook a comprehensive legal analysis of the effectiveness of the recommendations for guaranteeing the prohibition of torture. Since December 2014, the CDA has been working to consolidate its recommendations into one document. This work is ongoing, but a consolidated draft constitution was released unofficially in October 2015. The following accessible summary provides an overview of the protections offered by the consolidated draft constitution and some of the key amendments needed in order to provide a comprehensive legal framework from within which to guarantee the absolute right to be free from torture.
LFJL is extremely concerned by the weak language used to protect against torture and other ill-treatment. Of particular concern is the lack of an explicit guarantee of the absolute right to be free from torture; the revised constitutional provision does not encompass the necessary absolute prohibition of torture or ill-treatment, but merely recognises that the state “commits itself to protecting human dignity, fighting torture and forced disappearance”. If accepted in its current form, these amendments mean that the absolute prohibition or torture and other ill-treatment is no longer enshrined at the constitutional level.
Also of particular concern are the amendments to the provisions regarding amnesties. Contrary to December’s draft recommendations, the current consolidated draft may no longer prohibit amnesties being awarded to those who have committed human rights violations, including torture and ill-treatment. The consolidated draft has removed torture from the list of crimes which may not be subject to amnesty and now also contains a provision for a “Special Amnesty” – the scope of which is unclear. If adopted in its current form, the constitution will no longer address existing amnesties such as those granted under Law 38 of 2012 “for actions made necessary by the 17 February revolution”, but may be understood to grant amnesty for human rights violations including torture. The draft, in its current form, may therefore enshrine a culture of impunity.
Another urgent concern is the fact that fair trial protections have been weakened considerably. For example, the use of evidence extracted through torture is no longer prohibited. Fair trial protections, and particularly the exclusionary rule, are highly important safeguards against torture; torture occurs most frequently on arrest and during the first days of interrogations for the purpose of extracting confessions or information.
In light of these concerns, and others which will be elaborated on in a forthcoming update to the legal analysis undertaken with REDRESS, LFJL considers that the constitutional amendments provide a significantly lower standard of protection against torture and ill-treatment than is required by Libya’s international obligations. LFJL’s Constitution Building and Legal Reform Programme Coordinator Chloe Dennis noted, “We are extremely concerned by the deteriorating quality of the constitutional draft’s measures towards ensuring the absolute right to be free from torture within Libya’s legal framework, in violation of its international obligations. On International Human Rights Day we urgently call on the CDA to review and revise the constitutional document in light of these concerns in order to ensure that the absolute right to be free from torture is safeguarded comprehensively and the practice eradicated.”
LFJL looks forward to publishing its in-depth commentary on this subject in the coming days and is ready to provide technical assistance in this regard.