International Day of the Victims of Enforced Disappearances
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”
Today, Wednesday 30th August, is the International Day of the Victims of Enforced Disappearances[i], adopted by the General Assembly of the United Nations in 2010.
This day comes while the victims of enforced disappearances in Libya and their loved ones and families living between hope and despair; hope that the disappeared return and despair because of the longevity of their disappearance and lack of any information about their fate, and of the authorities’ lack of concern over their suffering, which is an ongoing violation of human rights of both the disappeared and their families[ii]. Crimes of enforced disappearances are increasing[iii] due to the insecurity and the failure of the official authorities to take practical steps to put an end to these crimes. In Libya, in many cases when people are subjected to arbitrary detention, they are held in complete isolation of the external world, incommunicado detention, without any contact with their families for months or longer, amounting to enforced disappearance.
The successive governments, since the fall of the previous regime in August 2011, failed to fulfil their primary duty and responsibility towards the citizens, the responsibility to protect, and failure to promote the rule of law, as a result, the innocents, citizens and expats, suffered and continue to suffer. According to the latest report[iv] by the General Authority for Searching and Identification of Missing Persons (GASIMP), the number of missing persons in Libya registered with the GASIMP is 3’683 and has examined 1’777 corpses since 2011, of whom 279 victims were identified. According to the head of GASIMP[v], the percentage of completion in building the genetic database of the victims’ families, who are registered with the GASIMP, has reached 75%.
Migrants in Libya are subjected to enforced disappearance. Since the Department for Combating Illegal Migration (DCIM) does document the names and relevant identity data of immigrants and asylum seekers when they are held in detention centres, there is no possibility of knowing who is held where. The fact that most migrants held in these DCIM centres are prevented from communicating with the outside world, and many are detained for long periods, sometimes more than a year, all leads to the disappearance of migrants. Last July, UN experts[vi], special rapporteurs, and independent experts, expressed their “serious concern about the situation of migrants and refugees in Libya who were allegedly held captive and tortured, subsequently released by Libyan authorities and transferred to unknown places of detention, where they are reportedly at risk of further serious human rights violations, including acts tantamount to enforced disappearance”.
Since June of 2021, after the withdrawal of militias loyal to the renegade Maj Gen Khalifa Haftar from the city of Tarhouna, the mass graves in the fields surrounding Tarhouna, continue to reveal the extent of the grave violations committed by al-Kaniyat militia. According to a report published by the Tarhuna Victims Association[vii], as of August 22, 2023, 284 bodies had been recovered from 99 unmarked graves, including 51 mass graves, from the city of Tarhuna and its environs, and 203 victims had been identified, while 81 bodies are still yet to be identified.
Enforced disappearance is considered “a grave and flagrant violation of human rights and fundamental freedoms”[viii], it “places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families[ix]. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.”[x]
Some perpetrators of these crimes invoke the exceptional circumstances, political instability, and the state of war, that is prevailing in Libya, but the International Convention for the Protection of All Persons from Enforced Disappearance[xi] states in Article 1 (para. 2), “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”
Both the Rome Statute of the International Criminal Court and the International Convention for the Protection of All Persons from Enforced Disappearance state that, when committed as part of a widespread or systematic attack directed at any civilian population, a “forced disappearance” qualifies as a crime against humanity and, thus, is not subject to a statute of limitations. It gives victims’ families the right to seek reparations, and to demand the truth about the disappearance of their loved ones.
HRS calls on all parties to the conflict in Libya not to use Enforced Disappearance as a tool of war and demand the immediate and unconditional release of the abductees and remind all these parties that enforced disappearance is a crime against humanity[xii], as defined in the Rome Statute of the International Criminal Court[xiii], and that there is no statute of limitation for such crimes.
Article 6 (paragraph 1/a) of the International Convention for the Protection of All Persons from Enforced Disappearance[xiv] holds criminally responsible “Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance;” and the second paragraph of the same article states that “No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance.”. The Libyan Penal Code criminalizes Enforced Disappearance[xv] and is punishable by imprisonment in accordance with Law No. (10) of 2013 “On the Criminalization of Torture, Forced Disappearance and Discrimination”.
HRS calls on GASIMP to publish the data on the Authority’s website and update them continuously. HRS also directs its appeal to the relatives of the victims of enforced disappearance (the missing), to take the initiative to register their cases of enforced disappearance at the GASIMP and to provide DNA samples to help identify the missing. According to the head of GASIMP[xvi], they have approximately 90 unidentified bodies, which were found in different locations, and they were unable to identify the identity in the genetic database, this is attributed to the failure of their relatives to register the cases of enforced disappearance.
HRS calls on the Libyan authorities, namely the Government of National Unity and its agencies:
- to take all necessary measures to end this phenomenon, and remind the GNA that in accordance with Libyan and international laws; every person deprived of liberty must be held in an officially designated place for detention and to be brought before a court without any delays,
- to sign the International Convention for the Protection of All Persons from Enforced Disappearance to promote human rights, and
- to renew the invitation[xvii] to the Working Group on Enforced or Involuntary Disappearances to visit Libya as soon as possible.
Human Rights Solidarity
Tripoli – Libya
[i] United Nations: “International Day of the Victims of Enforced Disappearances 30 August”.
[ii] The tragedy of the victims of enforced disappearances has been around in Libya for four decades. The fate of the hundreds of victims of enforced disappearances by the Gaddafi regime; like Jaballah Hamed Matar, Dr. Amru el-Nami, Ezzat el-Mugarief and the hundreds of victims of the massacre of Abu Saleem prison, is still unknown. Also unknown is the fate of the elected member of Benghazi Municipality Council, Mr. Essam Ghiryani; the Head of Benghazi Criminal Investigation Department, Lieutenant Colonel Abdul Salam el-Mahdawi; political activist Abdul Moez Bannon; the General Secretary of Libyan Scholars Association, Dr. Nader al-Omrani, Wael al-Maliki, disappeared near his home in 2014 when he was 17 years old, and the hundreds of other victims of enforced disappearances since the fall of the Gaddafi regime in 2011.
[iii] In 2017 HRS documented 332 new cases of enforced disappearances, in 2018 documented 247 new cases, in 2019 documented 344 new cases, in 2020 documented 106 new cases, and in 2021 documented 38 new cases, joining the hundreds of cases of victims who had disappeared in previous years. Amnesty International: “Libya: ‘Vanished off the face of the earth’ – Abducted civilians in Libya“, 5th August 2015. Amnesty quoted the Libyan Red Crescent Society “at least 378 people out of 626 cases of enforced disappearance recorded by the Red Crescent are still unknown at that time since they were arrested at various times since 2011.”
[iv] HRS obtained data directly from the head of GASIMP.
[v] Libya al-Ahrar: “An exclusive interview with the head of the General Authority for Searching and Identification of Missing Persons, Kamal Al-Siwi”, June 10, 2023.
[vi] Office of the United Nations High Commissioner for Human Rights: “Libya: UN experts alarmed at reports of trafficking in persons, arbitrary detention, enforced disappearances and torture of migrants and refugees”, July 21, 2023. Excerpt: “An estimated 700 people have been allegedly released and transferred to detention centres after being held captive and tortured for ransom in various locations in Tazerbu, South-East Libya, over the past two years. “We are troubled by the Libyan authorities’ delay in responding to concerns about trafficking in migrants and refugees and other serious human rights violations, including arbitrary detention, enforced disappearances, torture and sexual violence,” the experts said”. The experts: Siobhán Mullally, Special Rapporteur on trafficking in persons, especially women and children; Tomoya Obokata, Special Rapporteur on contemporary forms of slavery, including its causes and consequences; Felipe González Morales, Special Rapporteur on the human rights of migrants; Fernand de Varennes, Special Rapporteur on Minority issues; Aua Baldé (Chair-Rapporteur), Gabriella Citroni (Vice-Chair), Angkhana Neelapaijit, Grażyna Baranowska, Ana Lorena Delgadillo Perez, Working Group on enforced or involuntary disappearances; Ms Priya Gopalan (Chair-Rapporteur), Mr Matthew Gillett (Vice-Chair on Communications), Ms Ganna Yudkivska (Vice-Chair on Follow-Up), Ms Miriam Estrada-Castillo, and Mr Mumba Malila – Working Group on arbitrary detention.
[vii] Tarhuna Victims Association: “Tarhuna Victims Association 2022 Report”, December 31, 2022. Human Rights Solidarity updated the data for graves that were found, the number of bodies that were recovered, and the number of victims whose identities were determined, during the period from January 1, 2023 to August 22, 2023.
[viii] UN General Assembly Resolution (133/47): “Declaration on the Protection of All Persons from Enforced Disappearances“, article 1 / paragraph 1, 12th February 1993.
[ix] An example of the torment of victims of enforced disappearances, the criminal kidnapping and killing of the children of al-Sharshari family from the city of Sorman. On April 7th, 2018, the remains of the children were found nearly 30 months after they were kidnapped by a gang of criminals on December 2nd, 2015. The family of three children [Dhahab Riadh al-Sharshari (date of birth 9th April 2004), Abdelhamid Riadh al-Sharshari (27th May 2007) and Mohammed Riadh al-Sharshari (15th February 2009)] suffered for 30 months on the hope that their innocent children were alive and would return, only to discover that the criminal gang killed them few weeks after their abduction. Human Rights Solidarity: “Statement of Solidarity on finding the remains of the Sons al-Sharshari”, 7th April 2018, Arabic.
[x] UN General Assembly Resolution (133/47), article 1 / paragraph 2.
[xi] Office of the United Nations High Commissioner for Human Rights: “International Convention for the Protection of All Persons from Enforced Disappearance“.
[xii] The preamble of the United Nations General Assembly Resolution (133/47): “Considering that enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms and that the systematic practice of such acts is of the nature of a crime against humanity”.
[xiii] Rome Statute of the International Criminal Court, article 7 “Crimes against Humanity”, paragraph 1 (i).
[xiv] Office of the United Nations High Commissioner for Human Rights: “International Convention for the Protection of All Persons from Enforced Disappearance“, 20th December 2006.
[xv] Law No. (10) of 2013 “On the Criminalization of Torture, Forced Disappearance and Discrimination”, General National Congress, 14th April 2013. Article (1) “Forced Disappearance”, Paragraph (1) “Whoever kidnaps or detains a human being or deprives the same of any of his personal freedoms, whether by force, threats or deceit, shall be punished with imprisonment.”
[xvi] Libya al-Ahrar: “An exclusive interview with the head of the General Authority for Searching and Identification of Missing Persons, Kamal Al-Siwi”, June 10, 2023.
[xvii] The Libyan Government, the Transitional Government of PM Abdel Raheem el-Kib, invited the UN Special Procedures, the Working Groups, Special Rapporteurs and experts, to visit Libya. PM el-Kib made the open invitation in his speech at the 19th regular session of the Human Rights Council, 27th February to 23rd March 2012.
