Detainees in Libya need protection: they must be released now
The right to health and life of detainees in Libya must be protected especially in times of pandemic.
This article is part of a series of opinion pieces about Libya’s response to the pandemic within the ongoing conflict, through a human rights lens. The series is published in partnership with Lawyers for Justice in Libya , under the title "Libya: between conflict and pandemic, what hope for human rights?"
Instead of imposing measures to prevent and contain the spread of COVID-19 following the first reported case in Libya on 24 March 2020, warring parties directed their resources towards escalating the conflict. Full lockdown measures and curfews were instituted over two weeks later by the Government of National Accord (GNA) in the West and by the Interim Libyan Government led by Abdullah al-Thinni in the East; information on measures in the South beyond thermal screening is limited.
Those measures are inadequate with respect to the thousands of persons currently detained by State and non-State actors in cramped and unsanitary conditions in Libya. Migrants, refugees, and asylum seekers in addition to others detained without charge, are at significant risk of infection. Although some detainees have been released – reports refer to 1,600 prisoners, 466 pre-trial detainees, and others meeting conditional release rules as well as 200 refugees and migrants from Tripoli’s Sabaa detention centre – thousands more remain in detention, including large numbers of women and children.
Libyans face this pandemic in the context of a severely compromised health system which was already vulnerable to a pandemic outbreak, and which lacks sufficient medical supplies, equipment, and personnel to test for and treat COVID-19. Unless all Libyan and involved international actors, such as the GNA, the Al-Thinni-led government, the Libyan Arab Armed Forces (LAAF) and other armed groups and States intervening in the conflict in Libya, take drastic action now, the COVID-19 pandemic will cost thousands of lives, including a disproportionate number of detainees.
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Libyan authorities are obligated to reprioritize existing resources as well as expand them to ensure the right to health. Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR) and article 24 of the Convention on the Rights of the Child (CRC) require that they respect, protect, and fulfill individuals’ right to “the highest attainable standard of physical and mental health” by making healthcare systems, facilities, goods and services, that are acceptable and of sufficient quality, available and accessible to all persons, without discrimination.
In the context of the pandemic, and in accordance with article 2 of ICESCR, the “maximum of [Libya’s] available resources” must be directed to COVID-19 prevention, screening and treatment measures. Under article 2 of the ICESCR and article 24(4) of the CRC, the authorities must also seek international cooperation and assistance to boost their scarce resources. Protecting and fulfilling the right to life, also a binding obligation under international law, is a corollary of meeting such requirements.
The threat to detainees’ right to health requires all Libyan actors to adopt alternatives to detention
While these obligations undoubtedly apply to the GNA as the internationally recognized authority, whether they constitute hard duties for armed groups operating in Libya is not straightforward. According to the Office of the High Commissioner for Human Rights (OHCHR), to ensure rights holders are protected, “non-State actors … can assume, voluntarily or not, obligations to respect, protect and fulfill human rights,” particularly “in situations where they exercise some degree of control over a given territory and population.”
While an in-depth analysis of the question is beyond the scope of this piece, at least for the East-West divide, a simple answer lies in the absence of GNA territorial control in the East and parts of the West and the LAAF’s establishment of relatively long-standing control over it. In such circumstances, the obligation to reprioritize and expand existing resources could equally apply to the LAAF and institutions established under the Interim Libyan Government and any other non-State actors meeting the de facto control requirement.
The threat to detainees’ right to health requires all Libyan actors to adopt alternatives to detention. They must also redirect resources to providing access to testing and medical services for persons who they can lawfully continue to incarcerate, and re-house them in facilities that allow for appropriate distancing between detainees and guards and the quarantining of detainees with COVID-19.
Under international law, including article 9 of the International Covenant on Civil and Political Rights (ICCPR), a person may only be detained on grounds and according to procedures established by law. The prohibition on arbitrary detention under international human rights law is absolute, and applies to State and non-State actors alike in relation to all forms of deprivation of liberty. The standards for lawful detention applying to different groups, including pre-trial detainees and convicted persons, differ.
The detention of persons solely for exercising their rights, including their rights to freedom of expression, association and assembly, is always arbitrary and they should be released.
Migrants, refugees and asylum seekers are detained in Libya under immigration laws that make irregular entry to Libya a criminal offence. Detention of persons solely on the grounds of their migration status is presumptively arbitrary and may only be undertaken exceptionally. According to the UN Human Rights Committee, detention of such persons “must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.” In the context of the increased risk of exposure to COVID-19, the detention of migrants, refugees and asylum seekers is unnecessary, unreasonable and disproportionate. Libyan actors should release them in coordination with humanitarian service providers and ensure they have effective access to health services and sanitation. Libyan actors should also stop enforcing immigration controls, with reasonable exceptions; for example, to combat human trafficking.
The detention of people awaiting trial is the exception, not the rule. The UN Human Rights Committee has repeatedly stated that individualized determinations regarding whether detention is “reasonable and necessary taking into account all the circumstances” must be undertaken. The long-term detention of thousands of persons without charge, without being brought promptly before a judicial authority and/or without trial without undue delay is arbitrary and they should be released.
Other categories of detainees, including those lawfully detained pre-trial and those imprisoned following a conviction, should be released if necessary to protect their health and the health of other prisoners and prison personnel, whether or not on bail, with electronic bracelets or with other conditions imposed. Persons from vulnerable groups, including older people and people with underlying health conditions, as well as persons detained on minor or political offences, in pre-trial detention or near the end of their sentences and other non-violent defenders should be released. With respect to children in particular, their detention in the context of the pandemic is not a measure of “last resort” nor humane, as required by article 37(b) and (c) of the CRC.
Persons who continue to be detained must have full access to medical assistance and services, including information and tests
Rule 24 of the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) requires Libyan actors to ensure detainees “enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.” To this end, Rule 25 requires that every prison has “in place a health-care service tasked with evaluating, promoting, protecting and improving [prisoners’] physical and mental health.”
Detainees and facility staff should also be given space to meet distancing requirements, adequate sanitation should be made available, and persons who have tested positive for COVID-19 should be appropriately quarantined. In addition to being a violation of the right to health, a failure to afford detainees measures to protect them from COVID-19 could constitute a violation of the non-derogable prohibition on torture and other cruel, inhumane or degrading treatment or punishment under articles 7 and 10 of the ICCPR, articles 4 and 16 of the Convention Against Torture, and customary international law.
To ensure detained persons can seek prompt judicial review of any ongoing detention and access to justice, judicial authorities and courts should remain available to address urgent matters. On 31 March 2020, the High Judicial Council ordered the closure of courts for one month, which was renewed on 28 April, with an exception for undefined “urgent cases,” further restricting detainees already severely limited access to judicial review of their detention. Judicial review of detention should fall within the category of “urgent cases” and the capacity of the courts should be increased to ensure continuing and effective access to justice, whether virtually or with appropriate safeguards in place.
The ongoing conflict in Libya not only limits the resources available to Libyan actors to contain COVID-19, but has proven to seriously undermine their ability to do so. Resources should be redirected to combatting COVID-19, which requires a cease fire and coordination by State and non-State actors across the country. Such resources should be directed towards an urgent and thorough review of detainees with a view to the release, with humanitarian support, of the maximum number of persons possible and, for persons who continue to be lawfully detained, to ensuring equal access to health care and appropriate safeguards to prevent and contain the spread of COVID-19.
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