Libya: Ensure Abdallah Sanussi Access to Lawyer

(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."