Monday, February 21, 2011

Libya: The Price of Being Tone Deaf

By William Fisher

Less than three years ago, Human Rights Watch handed over to the Libyan Government the 2009 edition of its annual survey, entitled “A Facade of Action -- The Misuse of Dialogue and Cooperation with Rights Abusers.”

The Libyan chapter of the report, like its annual predecessors, made an extensive series of recommendations for ridding the country of its most egregious human rights violations.

The report noted there had been some improvements made in the Libyan human rights environment -- less frequent arbitrary arrests and enforced disappearances, greater tolerance of freedom of expression and some progress in addressing gross violations of the past, limited steps toward increased tolerance of dissent, and two new private newspapers and the Internet.

These developments, HRW said, “have created a new limited space for freedom of expression, and some unprecedented public demonstrations have been allowed to take place.”

But HRW found that Libya’s performance in the human rights area was unacceptable. It said the country’s Internal Security Agency “remains responsible for systematic violations of Libyan rights, including the detention of political prisoners, enforced disappearances and deaths in custody.”

Human Rights observers, witnessing the current bloody conflict that many believe could degenerate into a full-blown civil war, are lamenting Col. Gadaffi’s failure to correct these continuing abuses.

HRW lays out the human rights landscape in Libya today. Freedom of expression remains severely restricted by the Libyan penal code. Cracks in the wall that the government has set up against free expression are thin but evident, but there has also been an increase in the number of prosecutions of journalists, although no journalist has been sentenced to prison so far.

HRW found that, “There is no freedom of association in Libya because the concept of an independent civil society goes directly against Gaddaffi’s theory of governance by the masses. Law 71 still criminalizes political parties, and the penal code criminalizes the establishment of organizations that are ‘against the principles of the Libyan Jamahireya system’.”

The report says that Law 19, "On Associations," requires a political body to approve all nongovernmental organizations, does not allow appeals against negative decisions and provides for continuous governmental interference in the running of the organization. The government has refused to allow independent journalists' and lawyers' organizations.

The report notes that Libya’s Justice Ministry has announced plans to reform the most repressive provisions of the penal code. “Yet, despite work to develop a new penal code, an essentially repressive legal framework remains in place, as does the ability of government security forces to act with impunity against dissent.”

HRW adds, “Many trials, especially those before the State Security Court, still fail to meet international due process standards. Overall, unjustified limits on free expression and association remain the norm, including penal code provisions that criminalize "insulting public officials" or "opposing the ideology of the Revolution."

Many relatives of prisoners killed in a 1996 incident at Abu Salim prison are still waiting to learn how their relatives died and to see those responsible punished. The jurisdiction of courts, the duties of government agencies, respect for legal rights of prisoners and adherence to the country’s stated list of human rights often remain murky, erratic and contradictory, the report said.

There are a number of semi-official organizations that do charitable work, providing services and organizing seminars, but none that publicly take critical stances against the government. But Libya has no independent nongovernmental organizations.

The only organizations that can do human rights work, the most sensitive area of all in Libya, derive their political standing from their personal affiliation with the regime. The main organization that can publicly criticize human rights violations is the Gaddafi International Charity and Development Foundation (Gaddafi Foundation), chaired by Saif al-Islam al-Gadaffi.

A second organization, Waatasemu, is run by Dr. Aisha al-Gadaffi, Mu’ammar al-Gaddafi’s daughter, and has intervened in death penalty cases and women’s rights issues. The International Organization for Peace, Care and Relief (IOPCR), run by Khaled Hamedi, the son of a member of the Revolutionary Command Council, is the only organization able to access migrant detention centers.

The abuses of human rights and the recommendations for improvement are virtually identical in the 2006, 2009, and 2011 reports.

Amnesty International has also called on the Libyan government to end its clampdown of peaceful political activists after violence erupted at demonstrations in the city of Benghazi following the arrest of activists ahead of a major demonstration Thursday.

“The Libyan authorities must allow peaceful protests, not try to stifle them with heavy-handed repression, said Malcolm Smart, Amnesty International’s director for the Middle East and North Africa.

“Libyans have the same rights as Egyptians and Tunisians to express discontent and call for reform in their own country, and it is high time the Libyan government recognized that and respected it.”

“People should not be locked up simply because they call for peaceful protests. Libyans have a right to expect reforms, not arrests, detentions and further state repression," said Smart.

One of the consequences of Gadaffi’s inaction on the human rights and economic fronts is that, among all the Middle East nations whose leaders are now facing organized opposition, the Libyan response has been without doubt the most aggressive. Libyan soldiers and police are estimated to have killed 200-400 people as of today, February 21. There have been pitched battles between protesters and Gadaffi supporters in the streets of Benghazi and Tobruk, and most recently, these battles have begun to trickle into the capital, Tripoli. Protesters are reported to have taken control of military bases, and their stocks of arms, in provincial cities

Numerous human rights advocates have been weighing in on Libya’s handling of its current crisis. For example, the Arabic Network for Human Rights Information has expressed surprise and resentment at Gaddafi’s continuation of what it termed “practices that need psychological treatment,” such as warning Libyans not to use Facebook and arresting some Internet activists because of their support of the democratic revolution in Egypt, and calling on Libyans to make democratic and economic reforms.

Many Libyan Internet activists have declared their support for the pro-democracy movement and change in Egypt, and have created groups on Facebook to call for political and economic reforms in Libya. Libyan Security Services reportedly arrested a number of them.

The Arabic Network also reported that Gadaffi hired agents to attack activists who call for political reform and an end to in Libya.

The Network said that, “following in the footsteps of the Tunisian dictator Zine El Abidine Ben Ali, Security Services arrested the Libyan activist and former prisoner of conscience, Jamal Al-Hajji, over a fabricated charge of a car accident, similar to the accusations that the Tunisian used to fabricate for dissidents and political activists during his hideous ruling.”

The Arabic Network said, “The best thing for Gadaffi is to step down after seizing power against the will of the Libyans for so long. Democracy and freedoms are essential as air, no dictator or security as cruel as they can be could ever deprive people of them.”

The 2011Human Rights Watch report declares, “The steps Libya has taken to address some of its human rights problems do not go far enough in addressing the systemic and legal infrastructure that deprives Libyans of their basic human rights.”

The report continues: “Libya must ensure that it complies with all of its obligations under international human rights law and should immediately implement a number of reforms in policy, law and practice. The General People’s Congress (the legislative assembly) should repeal all provisions of the penal code and other laws such as Law 71 that violate freedom of expression and association, and that any new draft laws are fully in line with international human rights law.”

Specific recommendations arise from HRW’s concern over the country’s judicial and penal systems. HRW says, “The Internal Security Agency should immediately release all prisoners detained for peacefully exercising their right to free expression or association and compensate them for their detention.”

“In addition, Internal Security agents should immediately release the approximately 200 prisoners they are continuing to detain in Abu Salim prison despite the fact that Libyan courts have acquitted them and ordered their release or that they have completed their sentences.”

The HRW report further urges the People’s Leadership Committees to “immediately inform the families of prisoners who died in the 1996 Abu Salim prison massacre of the circumstances of the death of their relatives and give them the remains of their relatives to bury.”

“The authorities must carry out a full and effective investigation and make public the findings. This should be immediately followed by the prosecution of those responsible for the summary execution of those prisoners. Under human rights law, the Libyan government is under an obligation to make reparation and must not pressure the families into accepting compensation instead of pursuing accountability.”

It adds, “The families of prisoners who were killed in Abu Salim have the right to demonstrate peacefully and make demands to the Libyan authorities without intimidation and harassment from the security forces. In addition, in the context of Libya’s increasing political and economic integration in the world community, Human Rights Watch urges all organizations and governments engaging with Libya to ensure that the promotion of human rights in Libya forms part of their relationship.”

Other recommendations to the Libyan Government:

In the area of freedom of expression:

· Repeal Law 71 of 1972, which bans any group activity based on a political ideology opposed to the principles of the 1969 al-Fateh Revolution when Mu’ammar al-Gadaffi led a military coup overthrowing the Libyan monarchy;
· Repeal articles of the penal code that criminalize free expression, including articles 166, 178, 206, 207, and ensure that the new draft penal code is revised to comply with international human rights law;
· Release all individuals imprisoned or detained solely for exercising their right to free expression.

In the area of freedom of association and assembly:
· Allow for the establishment of independent organizations that wish to peacefully exercise freedom of association;
· Revoke the decision to refuse the registration of the Association for Justice and the Center for Democracy, the organizations that a group of lawyers and journalists attempted to establish in 2008;
· Repeal Law 71 of 1972 and related articles of the penal code that criminalize free association and amend Law 19 to allow for the establishment of independent non-governmental organizations;
· Ensure that individuals seeking to establish associations are not harassed by security forces or prosecuted for the subsequent exercise of freedom of assembly;

In the area of legal justice, prisons under the control of the Internal Security Agency should:

· Immediately release all prisoners acquitted by courts; immediately release all prisoners who have served their sentences;
· Implement all legal decisions issued by Libyan courts;
· Allow the Office of the General Prosecutor to conduct investigations regarding detention in Abu Salim and Ain Zara prisons;
· Quash all sentences against and immediately release all political prisoners who are imprisoned solely for the peaceful expression of their views or for activities protected by freedom of association and assembly;
· Compensate all who have been arbitrarily detained;

With respect to the State Security Court:

· Clarify the status of the State Security Court in the Libyan legal system;
· Ensure that a right of appeal is available to every defendant and clarify which court is competent to hear that appeal;
· Ensure that defendants have the right to a lawyer of their choice and sufficient access to their lawyers before the court sessions ;
· Ensure that both private and state-appointed lawyers have equal and full access to the case documents;
· Make all decisions rendered by the State Security Court publicly available, especially to the defendant and his family.

With respect to the Death Penalty:

· Order an immediate moratorium on the death penalty;
· Commute all death sentences to terms of imprisonment;
· Eliminate the death penalty as a punishment under Libyan law;
· Become a party to the Second Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), which aims at the abolition of the death penalty.

The report also included recommendations to the European Union and the UN Human Rights Council.

As in other Middle Eastern countries currently experiencing political upheavals, economic hardships as well as the human rights deficits are thought to be the major factors driving the uprisings.

The BBC reports that, “After many years when the entire population officially had jobs, Libya is now trying to tackle a growing unemployment problem, as it moves towards a more liberal economy. Previously, everyone who graduated from high school or universities was employed by the state. Officials are struggling to define unemployment and to find solutions for its jobless citizens.”

A Socialist ideology remains deeply entrenched in the mindset of many Libyans.

Over the past decade Libya dramatically transformed its international status from a pariah state under UN, EU and US sanctions to a country that, in 2009 alone, held the Presidency of the UN Security Council, the chair of the African Union and the Presidency of the UN General Assembly.

Libya earned its reputation as a pariah in the world community by attempting to secretly acquire nuclear materials. In 2003, Libya agreed to eliminate all such materials, equipment, and programs resulting in the production of nuclear or other internationally proscribed weapons.

Gadaffi admitted that, in contravention of its international obligations under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), Libya had pursued a nuclear weapons program, allegedly to counter the covert Israeli nuclear program. In 2004, the United States and Britain dismantled Libya's nuclear weapons infrastructure with oversight from the International Atomic Energy Agency (IAEA).

Gadaffi's 2003 decision to reveal the true scope of Libya's nuclear ambitions and progress resulted primarily from his increasing desire to regain admission to the international community by renouncing terrorism and weapons of mass destruction (WMD); his fear that Libya might be subject to a U.S. invasion, as had Iraq, on the grounds that it possessed WMD; the interception in October 2003 of a ship bound for Libya with a cargo of Pakistani-designed centrifuge parts manufactured in Malaysia; and the promise that long-standing international sanctions imposed because of Libya's terrorist activities would be lifted, leading to economic and other benefits.

U.S. President George W. Bush lifted most of the trade restrictions on Libya, allowing U.S. oil companies to explore Libya’s large oil reserves.

Libya attracted the world’s anger in 1988, with the midair bombing of Pan Am Flight 103 over Lockerbie, Scotland, headed for New York, killing all 243 passengers, 16 crew members, and 11 people on the ground.

It was determined that Libyan intelligence agents planned the bombing and one was tried and convicted by Scottish authorities. His release, on humanitarian grounds because of his terminal cancer, drew strong criticism from many world leaders. The Scottish prisoner was greeted as a hero upon his return to Libya and is still alive today.

Democracy? Not So Fast: Address Culture of Police Brutality

By William Fisher

Eleven days before he finally resigned, Hosni Mubarak may have had a chance to reverse his fortunes. Suddenly filled with a spirit of peace-making and reconciliation, the president offered up a smorgasbord of “reforms” he promised to make.

Among them was amending several articles of the Egyptian Constitution. Calls for these amendments had been going on for years. So central were they to the political well-being of the Egyptian people, that foreign powers – principally the United States –had intervened privately and publicly -- to persuade its most dependable Middle East ally to actually get something done.

But it was too late. The crowd in Tahrir Square didn’t believe their President. They had heard it all before. Mubarak was through.

So, days later, the task of re-writing the Constitutional amendments fell to a committee appointed by the Military Panel now governing Egypt.

Why is this important? Because over the years, the Mubarak regime created amendments to the Constitution. Their purpose was to make it virtually impossible to become a candidate, become a recognized political party, and have competent and independent monitoring of all elections.

Writing these new Constitutional articles is a modest assignment. The committee is not mandated to rewrite the entire Constitution; that may come later. But the Committee’s work is nonetheless critical. For it will be addressing the articles that, more than any others, have promulgated one-man rule in Egypt, kept the opposition from forming legal political parties, and thus effectively marginalized all candidates not named Mubarak.

The committee will work to be responsive to the leaders of the Tahrir Square opposition. They want the constitutional changes to reflect clearer separation of powers, strengthening of an independent judiciary, and less power for the president. That won’t all happen by writing a few amendments, but it’s a start.

And unless the committee finishes its work and the public votes ‘yes’ in a scheduled April referendum, it will be impossible to hold a presidential election in November.

Here, with thanks to Reuters, are the Articles the Committee is working on:

Article 77 of the suspended constitution allowed the president to seek re-election indefinitely. After specifying the length of the president’s term, the article says he “may be re-elected for other successive terms.”

The term of the Presidency is six Gregorian years starting from the date of the announcement of the result of the plebiscite that is used to decide the winner. The opposition has frequently called for a two-term limit on the president. This is a customary practice ion many democratic countries.

Article 88 cancelled the direct supervision of elections by the judiciary. Replacing it in 1977 was the Supreme Electoral Commission, of which the opposition has been widely critical for its lack of independence. Parliamentary elections were largely controlled by the Ministry of Interior.

The opposition has always called for constitutional changes to deter election rigging, a widespread practice for many decades. Supervision of selections by the relatively clean-handed judiciary was seen by the opposition as a deterrent to vote rigging. This practice has resulted in election results that were patently fraudulent and which earned Egypt the disrespect of many of its most important allies.

Article 93 dictates that the eligibility of its members can be decided only the People’s Assembly. The ruling National Democratic Party (NDP) majority has used this article to ignore court rulings invalidating election results.

Article 179, which will be eliminated, allowed the president to refer any terror related case to any judicial body, which gave him the right to use
military courts.

Article 189 says the president can ask parliament to approve an amendment or parliament can propose its own amendments. But all amendments must be approved in a referendum.

Heading the Committee is retired judge Tareq al-Bishry, reputedly respected in legal circles for his independent views. Marwa Al-A'sar of Egypt’s Daily News reports that Al-Bishry has been a strong supporter of an independent judiciary, though legal experts have said the Egyptian judiciary was subjected to increasing political meddling during Mubarak's 30-year rule.

Many in the opposition are voicing criticism of their new military bosses for not acting quickly to lift the so-called Emergency Law, which has been in effect continuously, with one brief hiatus, for thirty years. The emergency powers were implemented in 1981, after the assassination of President Anwar Sadat.

Mubarak made numerous promises to repeal these laws, but never followed through. In the last few years, the Mubarak regime introduced a set of 34 new constitutional articles, meant to be a substitute for the emergency laws.

But Mubarak’s critics say the amendments would have enabled a replacement of emergency laws with something just as authoritarian - but permanent.

The 34 new articles were approved by a vote in parliament, which was dominated by members of the ruling National Democratic Party. They would have written into permanent law emergency-style powers that, according Amnesty International, would have been used to violate human rights.

A week later they were put to a popular vote. Government officials said they were approved by more than three-quarters of voters, although the turnout was low - 27% according to official figures, much lower by other independent groups.

The opposition, led by independent supporters of the banned Muslim Brotherhood movement, boycotted the vote, saying the lightening referendum did not give them a chance to mount a proper "No" campaign.

The 34 new articles never became part of the Constitution.

But, in whatever form, the emergency laws have been used to trash the human rights of thousands of people who found themselves in conflict with the police and the security services. Capricious detentions. Incommunicado imprisonment. Torture. Police impunity. Denial of legal and family visits. Deaths in detention.
It is clear that democracy cannot flourish when laws like these are on the books and are being widely used. So hopefully the new military leaders will lift the emergency laws even before the April referendum.

But that moment is down the road a bit.

The first order of business now is the composition of four or five constitutional articles. And, even at this early stage, the hand-over of the rewriting to a committee has not gone without criticism. Thirty-one human rights organizations have criticized the amendment committee constituted by the military.

Rights groups say that committee membership is tilted toward particular ideologies, that it includes former Mubarak officials, and that it is a male-only group, despite the presence of many qualified women.

The organizations also charged that, in 2005 and 2007, some committee members belonged to legislation committees under the former regime, where they helped prepare flawed legislation and constitutional amendments.

The Rights groups also said that the committee lacked constitutional law experts who were independent and trusted by the public. Nor did it reflect Egypt's political and social diversity, they declared.

They said it looked like a coalition between members of the former regime and the Muslim Brotherhood.

Michele Dunne, a senior Middle East analyst with the Carnegie Endowment for International Peace, told Truthout that the drafting committee has adopted “a very fast process.” But she adds, “We should also bear in mind that the articles to be amended were very controversial and lawyers and NGOs had already done a lot of spade work on how they should be amended, so perhaps some of that work will be used now.”

But even if the committee completes its work on time and an April referendum overwhelmingly approves the new constitutional articles, the new Egypt will have simply taken another of many baby steps toward democracy.

The Emergency Law must be addressed. Some new rules will have to be written regarding Parliamentary elections and Parliamentary power. Someone or some body is sooner or later going to have to take a look at the opaque web of business and economic interests spun by the military’s crony-capitalism . The issue of corruption probably does not require any new laws, rather the implementation of laws already on the books.

The former Mubarak ministers now charged with corruption were charged as a last-gasp distraction by Mubarak. Their guilt or innocence will be decided by a court, but there is nothing to suggest that they would have been charged with anything at any time absent the Mubarak crisis.

How much of such an agenda the military will welcome with open arms is questionable. Every senior military man now on the ruling council owes his appointment – and in many case, his prosperity -- to Mubarak.

Arguably, the most important next step for Egypt beyond amending the constitution, is the emergence of a leader. Many in the country are calling for a leader capable of exercising “adult supervision” over the incredibly diverse souls who slept in Tahrir Square. Just as many others are saying that only the youth of the country can carry the spirit of the uprising from Tahrir Square into the Presidential Palace.

Notes of caution have been delivered to the folks in the Square by thousands of commentators inside and outside Egypt. They have been cautioned about euphoria. They have been told that “democracy is not a plan.” They have been warned about faux leaders, about running too fast, about trying to get everything absolutely perfect.

That’s not possible, and is it undisputed that these young people and their elders are going to make mistakes along the way. Expect them and undoing them can be easier.

And follow the advice of Rami Khoury, Lebanese-born, American-educated journalist and policy wonk:

“It takes time and energy to re-legitimize an entire national governance system and power structure that have been criminalized, privatized, monopolized and militarized by small groups of petty autocrats and thieving families.

“Tunisia and Egypt are the first to embark on this historic journey, and other Arabs will soon follow, because most Arab countries suffer the same deficiencies that have been exposed for all to see in Egypt.

“Make no mistake about it, we are witnessing an epic, historic moment of the birth of concepts that have long been denied to ordinary Arabs: the right to define ourselves and our governments, to assert our national values, to shape our governance systems, and to engage with each other and the rest of the world as free human beings, with rights that will not be denied forever.”