Libyan justice: medicine on death row

Michel Thieren
23 February 2011

On 19 December 2006, a Libyan judge announced a verdict in the final appeal of six foreign health workers accused of deliberately infecting 426 children with HIV at the al-Fateh hospital in Benghazi, Libya. The 2004 death sentence on the "Benghazi six" - five Bulgarian nurses (Kristiyana Valtcheva, Nasya Nenova, Valentina Siropulo, Valya Chervenyashka, and Snezhana Dimitrova) and one Palestinian doctor (Ashraf al-Hajuj, alias al-Hadjudj) - was confirmed, and they were sentenced to death by firing squad, as requested by the Libyan prosecutor in his opening statement on 29 August 2006.

Today, a judge trumped science to protect non-humanitarian interests, condemned six innocents to deaths, and made ignorance prevail over justice in fooling hundreds of parents into believing that their children had been poisoned and/or murdered by their nurses and doctor. Unless a last attempt to appeal the case is successful, six deaths may soon follow the one of 9-year old Marwa Annouiji, the fifty-second HIV-infected child, who died from her condition on 24 October.

There could not be a worse outcome. Today, 19 December 2006, medicine, public health, and humanitarian aid have been publicly executed in Libya. All the nurses, doctors and health workers of the world are in their own way likely to bear witness to and pay the consequences of this tragedy in the years to come.

The 426 children and the six health workers are at the epicentre of a complex case that goes far beyond the simple litigation of medical malpractice - now invalidated - and involves a variety of macroeconomic and geopolitical parameters.

Michel Thieren is a Belgian physician specialising in humanitarian affairs and human rights. He has spent more than a decade managing emergency operations in non-governmental organisations and the United Nations, and was head of office in northern Bosnia for the World Health Organisation in 1995-6. He works as a medical scientist at the statistical department of the World Health Organisation in Geneva

Michel Thieren writes here in his personal capacity only

Also by Michel Thieren in openDemocracy:

"There was genocide in Srebrenica…"
(11 July 2005)

"Katrina's triple failure" (7 September 2005)

"Kashmir: brothers in aid" (17 October 2005)

"Dayton plus ten: Europe interrogated" (24 November 2006) – with Louise Lambrichs

"Deaths in Iraq: how many, and why it matters"
(18 October 2006)

The shadow of power

The proceedings of case 44/1999 of the people's court of Libya, case 213/2002 of the criminal court in Benghazi, case 607/2003 of the criminal court in Benghazi, and Libya's supreme court ruling on the foreign health workers' appeal, all stem from a judicial system that does not hesitate to ignore scientific evidence in order to protect political interests. On 19 December, that system's violation of wisdom, law and justice has sealed a six-year-long case of alleged medical malpractice by sanctioning the death penalty against six innocent medics.

For the authoritative journal Nature, the case is nothing short of "a shocking lack of evidence". In its special report released in October 2006, Nature's editor summarises without concession the scientific evidence on the prosecution case (see "A shocking lack of evidence", Nature, 443/26 (2006) [pdf]).

In September 2003, two professors - Luc Montagnier and Vittorio Collizzi - testified in the criminal court in Benghazi that the HIV outbreak at al-Fateh Hospital "began by 1997, before the accused medical workers arrived in Libya" and that "many children were also infected with hepatitis B and C, suggesting unsafe medical practices were common in the hospital".

In the meantime, the Libyan judges continued to rely on the confessions of two of the Bulgarian nurses which were obtained under torture (and long retracted), and on a report by five Libyan physicians denying any HIV and hospital-hygiene problem in Libya. The Libyan report does not hesitate to ignore mere scientific knowledge by stating that the magnitude of the outbreak is proof enough that a "deliberate and malicious" infection occurred.

The last word on this aspect came a few days before today's vardict, also in Nature. Recently released phylogenetic analysis performed by international DNA forensic experts from Oxford and Rome provide the final confirmation of Montagnier and Collizzi's findings. By reconstructing the "family tree" of the HIV virus isolated from the patients, the experts established that "the HIV strain of Benghazi is related most closely from west Africa, suggesting a natural introduction, probably via the many migrant workers in Libya". That is enough to firmly invalidate all medical charges against the accused. If there isn't any malpractice case, what is the case about?

Malpractice and conspiracy

"At stake are some of the most profound political issues of our time", declared Pulitzer laureate Laurie Garrett in a comprehensive essay published in PLoS Medicine, the prestigious online medical journal of the US Public Library of Science.

In Garrett's view, the Libyan case is about finding a scapegoat for the collapse of the healthcare system, breaching the freedom of movement of international health workers and the legitimacy of international medical aid, finding a happy end (in Libyan terms) for the Lockerbie tragedy (the bombing of Pan Am Flight 103 in December 1988, attributed to Libyan intelligence services), and keeping an upper hand in the geopolitical and economical relationship between Libya, Bulgaria and the European Community.

The case is also, for an ageing totalitarian regime, about maintaining pressure and control over its people - especially in the area of Benghazi, known for its opposition to the current regime.

Case 44/1999 of the people's court of Libya opened in February 2000 on accusations of an attempt to destabilise the Libyan state by health workers operating at the al-Fateh Hospital, on behalf of foreign powers (namely the United States and Israel). More specifically, the Benghazi six, together with thirteen other colleagues (including nine Libyans) were accused of intentionally "murdering with a lethal substance (article 371of the Penal Code), randomly killing with the aim of attacking the security of the State (Article 202), and causing an epidemic through spreading harmful virus, leading to the death of persons (Article 305)".

In addition, the Bulgarian nurses were accused of acting contrary to Libyan customs and traditions, by engaging in non-marital sexual relations and using alcohol. After a two-year judicial nightmare, the people's court (the lowest court in the three-tier Libyan judiciary system) declared itself incompetent to try a national-security case and suspended proceedings, as it could not corroborate any of the conspiracy charges. While the Libyan medics were charged with negligence and released, the Benghazi six remained in prison where they were regularly subject to torture.

In July 2003, the judge of case 213/2002 of the criminal court in Benghazi commuted all accusations of conspiracy into allegations of illegal drug experiments, despite the testimony of Professor Luc Montagnier and Vittorio Collizzi. Ten months later, in May 2004 at the same court, the chief prosecutor of case 607/2003 sentenced the five Bulgarian nurses and one Palestinian doctor to death by firing squad for deliberately infecting 426 children with HIV. It is only at that time that the defendants solicited international legal assistance.

This international mobilisation and the outcry from the part of many defence associations, human-rights activists, leading moral authorities (including 114 Nobel science laureates), led judges of the Libyan supreme court in December 2005 to overturn the death sentence and order a retrial (see, for example, Physicians for Human Rights, Bulgarian and Palestinian Health Professionals Sentenced to Death in Libya, 2005]). This is the final appeal trial adjudicated on 19 December 2006.

During this long process, intergovernmental diplomacy has remained more discreet than its non-governmental counterparts. The Libyan government has openly requested that Bulgaria offers financial compensations for the families of child victims. Coincidently or not, the compensations equal the sum disbursed by Libya for the 270 deaths of the Pan Am 103 bombing.

On 14 December 2006, the European commission announced the disbursement of 500,000 Euros "for continuing its support in its fight against the HIV/AIDS epidemic in Benghazi", extending two previous grants of 1 million euros each in July 2005 and March 2006, all being part of the longer-term initiative "HIV Action Plan for Benghazi" launched in November 2004 and implemented by the Libyan authorities.

Benita Ferrero-Waldner, commissioner for external relations and European neighbourhood policy, took the opportunity of the grant's renewal to declare that she was "very pleased with the positive achievements of the Benghazi Action Plan so far", adding "that these actions are very valuable in order to reinforce the climate of trust and partnership."

The self-congratulatory EU report contrasts with darker accounts that indicate collusion between the Benghazi case and the capacity of the Libyan political leader to leverage his real political interest: namely oil-trade contracts, arms trade and diplomatic relationships with Europe and the middle east.

Into the darkness

The supreme court of Libya has both inflicted a wound on the world of medicine and public health, and conjured dark recollections of earlier violations of its neutrality. As if by macabre coincidence, 19 December evokes two tragedies (albeit of very different character and scale), fifteen and sixty years ago respectively:

  • the attack on Vukovar hospital in the former Yugoslavia on 19 November 1991, where dozens of health workers died with many of their patients
  • the opening statement of the medical case of subsequent Nuremberg proceedings (the "Nazi doctor" trial on 9 December 1946, where twenty Nazi medical doctors were charged "with murders, tortures, and other atrocities in the name of medical science" .

An option was offered to Libya to escape from its own dark times: by joining the world of nations as a global citizen, defeating its totalitarian ghosts and accepting the urgent need for its people to have access to proper judicial and healthcare standards. The decision of 19 December 2006 represents a wilful refusal of these opportunities - and one which will only deepen the tragedy of the infected children.

At the doors of Tripoli's supreme court, hundreds of betrayed parents who think justice was delivered engaged in noisy celebration. Will they ever know that dubious politics and unsafe hospital conditions - not these innocent nurses and doctor - killed their children? In Libya, the 374 HIV-infected children still alive, together with all Libyan patients, nurses and doctors are more than ever vulnerable, making these fleeting instances of celebration hugely symbolic of what Libyan politics and its regime really are.

Declaring a mistrial could have saved the life of six health workers who decided to act as humanitarian healers in the true sense of Hippocratic tradition. It could have reaffirmed the principles of medical neutrality which provide for the free movement of humanitarian health workers around the world and free access to vulnerable populations in need.

It did not happen. In failing to stand up for the neutrality of medical and public-health practice, Libya has missed the opportunity to speak up for its own best interests and aspirations. But the disaster is not Libya's alone: it belongs to the entire world of medicine.

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