The case of the Abu Salim Prison Massacre After 24 years of waiting, Catastrophic Failure to achieve Justice
Nearly 9 years after the fall of the former regime, who committed the Mass Murder at Abu Salim Central Prison in Tripoli, known as the “Abu Salim Prison Massacre” (hereafter referred to as the Massacre). An unprovoked mass murder[i] of nearly 1,200 unarmed detainees[ii], the Ninth Criminal Circuit of the Tripoli Civil Appeals Court (hereafter referred to as the Court), ruled[iii] on Case (No. 782 / 2017). The Court dropped the case against 79 defendants because of Statute of Limitation[iv].
The Court[v] established its ruling, on the grounds that the Massacre was not a Crime Against Humanity[vi], to which the Statute of Limitations does not apply[vii], and considered it an ordinary crime subject to Statute of Limitations according to Article (107) of the Libyan Penal Code[viii]. Thus, the court accepted the defense motion to not apply Article (1) of Law No. (31/2013)[ix], which defined “the Abu Salim Prison Massacre a Crime Against Humanity”, to the case, nor Article (4) of Decree No. (59/2013)[x], which considered the Massacre an act of Genocide. In addition, the Court accepted the defense motion not to apply Article (27) of Law No. (29/2013)[xi], which states “Criminal proceedings for crimes committed before Law No. (11) of 1997 came into effect and which were committed for political, security, or military motives shall not be subject to the statute of limitations”. The court accepted the defense’s motion to exclude the application of Law No. (11/1997)[xii], which stipulated that the Statute of Limitations is not applicable to crimes, “because the crimes attributed to the defendants in this case took place before Law (11/1997) was issued”.
Thus, the court has chosen selective modus in its choice of applicable laws in its handling of the case. Article No. (107) of the Libyan Penal Code stipulates that “felonies shall fall after the lapse of ten years from the day of the crime, misdemeanors by the passage of three years and violations by the lapse of a year, unless the law stipulates otherwise”. Libyan Law has provisions of none-applicability of Statute of Limitations to crimes, and in force before the Massacre. Law No. (20/1991)[xiii], which stipulates in Article (37) that “Criminal acts shall be punishable in accordance with the provisions of this law by the penalties stipulated in the Penal Law and the supplementary laws thereof”. Among the rights stipulated in the provisions of Law (20/1991) is the Right of Life, and Article (34), of the said law, states that “the rights stipulated by this law shall not be subject to Statute of Limitations, impairment, or waiver”.
It is a known fact that the Massacre was ordered by the head of the head of the regime at the time, Colonel Muammar Gaddafi[xiv]. According to the testimony of his Chief of Staff of his office in Bab al-Aziziyah, Mr. Ahmed Ramadan[xv], “the Massacre was ordered by Gaddafi and executed by Colonel Abdullah al-Senussi, head of the Military Intelligence Service. Leaders[xvi] of the security and military services of the regime were present at the crime scene with Colonel Abdullah al-Senussi, and some participated in executing the Massacre, according to the testimony of dozens of the defendants in the case, and other witnesses. According to the testimonies of witnesses, Abdullah Al-Senussi went to the crime scene, the central prison in Abu Salim, by order of Qadhafi and he was in contact with Gaddafi while he was in prison. The crime targeted a specific group of civilians, because of their political position vis-à-vis the regime at the time.
Since the head of the regime, Colonel Muammar Gaddafi, was responsible for the Massacre, carried out by his top lieutenants, commanders of his security and military apparatus, it was impossible to file a complaint and take appropriate legal measures, especially since those responsible for the criminal prosecution at the time; Attorney General Abdel Razzaq al-Sosa’a, the Military Prosecutor Mohamed al-Khaddar, and the Minister of Justice and Interior [Secretary-General of the General People’s Committee for Justice and Public Security], Colonel Mohamed al-Misrati, were part of the regime[xvii]. Colonel al-Misrati was the first director of Abu Salim Central Prison upon its establishment[xviii] in April 1996.
This is a “force majeure”, which is one of the established legal rules in jurisprudence. Regarding this, the Libyan Supreme Court ruled, “The suspension of the deadline, by the effect of the force majeure, emanates from a general principle that deadlines do not apply to those who are unable to take measures to preserve their right.” The force majeure remained in place until it receded with the collapse of the rule of the former regime in Tripoli on August 23, 2011, and on September 19, 2011, the Office of the General Attorney received the first complaint about the Massacre, and on October 1, 2011, the Public Prosecutor began investigating the case.
Moreover, the court violated a clear law, Law No. (31) of 2013, which should have guided the court. The law describes the Abu Salim Prison Massacre, in an explicit text that does not accept interpretation, as a Crime Against Humanity. The constitutionality of the law, or whether or not it is correct, is within the jurisdiction of the Constitutional Circuit of the Supreme Court. It also violated Law No. (29) of 2013 “On Transitional Justice”, which is part of a package of legislative, judicial, social and political measures to achieve national reconciliation. Therefore, Law (31/2013) and Law (29/2013) and before them Law[xix] (17/2012) “On the Rules of National Reconciliation and Transitional Justice”, is a package of legislations aimed at documenting the violations of the previous regime, for accountability, reparation, legislative and institutional reforms, and national consultations to ensure that grave violations do not recur.
Thus, the judgment of the Tripoli Court of Appeals in the Abu Salim Prison Massacre case is considered a gross failure to achieve justice and a let-down to the victims. It leads to erosion of any remaining confidence of the victims in the ability and capacity of the Libyan judicial system to deliver them justice and reveal the truth.
And since the transitional period has increased the scope and gravity of the violations, such as the ongoing discovery of mass graves in the city of Tarhuna and its surroundings, where dozens of victims apparently were buried alive[xx], the Criminal Circuit of the Supreme Court is at a decisive point, to assert the principles of justice, to provide justice to the victims and promote the chances of national reconciliation, security and peace.
Human Rights Solidarity
Tripoli – Libya
The course of the case:
- On September 19, 2011, Mr. Zuhair Salem Saïd submitted a complaint at the Office of the General Attorney regarding the mass murder at Abu Salim Prison, and on October 1, 2011, the Public Prosecutor initiated an investigation into the incident,
- The Public Prosecutor prepared a document of opinion and disposition of the Massacre. It indicted 264 persons, issued charges against 172 defendants and postponed the charges against 92 till they were arrested. Ultimately a case against 86 defendants was brought before the Court. Of the 86 defendants, 2 did not appear before the Court, 5 died during the hearings.
- The Public Prosecutor submitted the case papers to the indictment chamber, requesting to proceed the case to the criminal court. On June 15, 2017, the indictment chamber decided to refer proceed with a trial before the Criminal.
- The Tripoli Civil Appeals Court set the first hearing of the case on August 2, 2017, to be before the 11th Criminal Circuit. But for reasons that were not disclosed, the 11th Circuit recused itself from hearing the case, so the President of the court assigned the case to the Ninth Circuit,
- When examining the case, the Ninth Circuit released a group of defendants, so the relatives of the victims submitted a motion to the President of the Court of Appeals Tripoli, to change the judges, but the president of the court rejected the request,
- During the course of the case, the court decided to release a second group of defendants “on a conditional release, to appear before the court regularly),
- Abdullah al-Senussi (Defendant number 2 in the case):
- During the hearings, on the session of March 3, 2019, Abdullah Al-Senussi’s defense, argued that “her client was tortured in the al-Hadhba detention and that torture marks are still visible on his body, and his confessions were a result of coercion”. al-Senussi asked the Court for permission to speak, and the Court allowed him to speak. He said “where does the Public Prosecution Office stand regarding the violent physical torture [I was subjected to] at al-Hadhba prison. I was detained in a unusable closed toilet”, Page (82) of the Tripoli Appeals Court ruling in the Abu Salim Prison Massacre case,
- In the Session of June 2, 2019, Abdullah al-Senussi’s lawyer asked the Court to hear the testimony of Hisham Mesbah al-E’tri, director of the Health Care Department at the Ministry of Justice, and before that he worked as a health care supervisor at the medical clinic in al-Hadhba prison, to testify about the treatment of the defendants in al-Hadhba prison. The court accepted to the request and listened to the witness. He said “the accused, Abdullah al-Senussi, has pre-existing health conditions and needs [specialized] treatment, but he [al-E’tri] was unable to transfer him to a place where he can be treated, …, and the situation of the prisoner was referred to the medical release committee. The committee decided to release him [al-Senussi] according to the Law”, Page (87) of the Tripoli Appeals Court ruling in the Abu Salim Prison Massacre case,
- The first session of the case before the Court was held on August 5, 2018, and after 10 sessions, the 10th session was on August 4, 2019, the Court booked the sentencing session on December 25, 2019, and
- Relatives of the victims filed an appeal, before the Supreme Court’s Criminal Circuit, against the ruling.
[i] Human Rights Solidarity: “Abu Salim Prison Massacre”, 29th June 2018, a copy of the report is attached “LHRS PRS-2020-06-165 EN Annex 01.pdf”.
[ii] On the, 29th June 2016, Human Rights Solidarity, published lists of the names of victims of the massacre from the archives of the Internal Security Agency. The lists contained 1’158 names. After the publication, several families contacted the organization informing it that their relatives, who perished in the massacre, were not included in the published lists. HRS verified the names of 3 victims from one family, el-Sharrani, hence the known number of victims is 1’161 victims. See attachment “LHRS PRS-2020-06-165 EN Annex 02.pdf” for the lists.
[iii] Human Rights Solidarity: “Tripoli Court of Appeal ruling on the Case of Abu Salim Prison Massacre”, December 25, 2019 (The Court ruling, 114 pages in Arabic).
[iv] Tripoli Court of Appeal ruling on the Case of Abu Salim Prison Massacre, page 114. The Court dropped the charges against 5 defendants, they died during the trial’s proceedings.
[v] Justice al-Kouni Mukhtar SAIID presided over the case, Justices Rajab Khalil el-KAHAILI and Musbah Mauloud OTHMAN, were members of the Court. Tripoli Court of Appeal ruling on the Case of Abu Salim Prison Massacre, page 1.
[vi] The court concluded that the Prosecutor did not prove that “the material elements of the crime were committed with intent and knowledge”.
[vii] Office of the United Nations High Commissioner for Human Rights: “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity”, Entry into force: 11 November 1970. Libya Acceded to the Convention on May 16, 1989 (link).
[viii] Ministry of Justice, Information and Documentation Center, Encyclopedia of Criminal Legislation, Libyan Penal Code (Arabic), Article (107) “Extinction of Offences by Prescription”: “Felonies shall be extinguished once 10 years have passed from the day of the commission of the offence; a misdemeanor shall be extinguished after 3 years; and infractions shall be extinguished after one year, except if the law provides otherwise”. English translation of the Libyan Penal Code is provided by DCAF, Geneva Centre for Security and Governance (link).
The validity of the time period after which offenses are extinguished shall not be suspended for any reason.”.
[ix] General National Congress: Law No. (31) of 2013 “On adopting provisions pertaining to the Abu Salim Prison Massacre”, 18th December 2013, Libyan Official Gazette, 3rd Year, issue no. (4), 7th May 2014. English translation of Law (31/2013) is provided by DCAF, Geneva Centre for Security and Governance (link).
[x] General National Congress: Decree No. (59) of 2013 “On the Abu Salim Prison Massacre”, 26th June 2013, Libyan Official Gazette, 3rd Year, issue no. (1), 28th January 2014. English translation of Decree (59/2013) is provided by DCAF, Geneva Centre for Security and Governance (link).
[xi] General National Congress: Law No. (29) of 2013 “On Transitional Justice”, 2nd December 2013, Libyan Official Gazette, 2nd Year, issue no. (15), 15th December 2013. English translation of Law (29/2013) is provided by DCAF, Geneva Centre for Security and Governance (link).
[xii] Ministry of Justice, Information and Documentation Center, Encyclopedia of Criminal Legislation, Law No. (11) of 1997, Article (1) “Crimes and criminal cases shall not be subject to prescription”. English translation of Law (11/1997) is provided by DCAF, Geneva Centre for Security and Governance (link).
[xiii] Ministry of Justice, Information and Documentation Center, Sovereign Laws and State Administration, Law No. (20) of 1991 “On the Promotion of Freedom”. English translation of Law (20/1991) is provided by DCAF, Geneva Centre for Security and Governance (link).
[xiv] Colonel Muammar Gaddafi was defendant number 1 in the case, charges were dropped because of his demise.
[xv] Tripoli Court of Appeal ruling on the Case of Abu Salim Prison Massacre, page 95. Excerpts from the testimony of Ahmed Ramadan, Chief of Staff of Gaddafi’s office at Bab al-Aziziyah. “I was at his home on Friday evening [June 28, 1996] and I later learned that Abdullah al-Senussi and Mansour Dhaw were with Gaddafi and he [Gaddafi] ordered them to go to the prison and resolve the problem … On Saturday morning [June 29, 1996], while I was at work [Gaddafi’s office], Abdullah al-Senussi called me and asked me to inform Gaddafi that within an hour they would be in full control of the prison, and that they had contacted Ashour Emgaig [Public Works Tripoli] and asked him to bring equipment to dig a deep pit to put the dead bodies in … Abdullah al-Senussi and Mansour Dhaw arrived and informed Qaddafi that they had liquidated a large number of prisoners, buried them in a hole inside the prison, poured sulfuric acid on the corpses, and covered them with dirt and on top of it a layer of asphalt”. Ahmed Ramadan said, “Muammar Gaddafi has sent them to commit the act, and they, Abdullah al-Senussi and Mansour Dhaw, carried it out”.
[xvi] Tripoli Court of Appeal ruling on the Case of Abu Salim Prison Massacre, from the statements of the accused and witnesses. The leaders of the regime who were present at the crime scene on the evening of June 28 and the morning of June 29, 1996: Musa Kusa, “head of External Security Agency”; Abdullah al-Senussi, “head of Military Intelligence Agency and Head of the Control Authority”; Mansour Dhaw “Commander of the People’s Guards”; Abdul Hamid al-Sayeh, “Director of the Internal Security Bureau, Al-Nasr Street”; Nasr al-Mabrouk, “head of the Anti-Heresy Section at the Internal Security Agency”; Colonel Khairi Khaled, “Commander of the Military Police”; Colonel Khalifa Hnaish, “Commander of the Bab al-Aziziya Guard”; al-Tohamy Khaled, “Director of the Internal Security Bureau of Investigations, and later Director of the Internal Security Agency”; Izz el-Din al-Henshiri, Abdullah Mansour, Abd al-Salam al-Zadimah, Saeed Rashid, Ammar Ltayef, and other leaders of the security and military services and leaders of the Liaison Office for the Revolutionary Committees.
[xvii] The Memoirs of Attorney General, the late Ali Salem al-Feituri, may God’s mercy be upon him, “Memoirs of a General Prosecutor, a testimony on the Dark Age”, is full of cases of interventions by the Gaddafi regime, in all events, incidents, agencies and authorities to obscure the Truth and obstruct justice.
[xviii] Tripoli Court of Appeal ruling on the Case of Abu Salim Prison Massacre, page 100. “Secretary of General Security [Minister of Interior] Decree No. (435/1996): “A main prison called Abu Salim Central Prison shall be established in Tripoli, and this decree shall be enforced from the date of its issuance and to be published in the Official Gazette,” the date of decision April 23, 1996. Secretary of General Security [Minister of Interior] Decree No. (436/1996): “Colonel Mohamed al-Misrati is appointed as Director of the Abu Salim Central Prison and the competent authorities must implement this decision,” dated April 23, 1996”.
[xix] National Transitional Council, Law No. (17) of 2012 “On the Rules of National Reconciliation and Transitional Justice”, 26th February 2012, Libyan Official Gazette, 1st Year, issue no. (3), 16th April 2012. English translation of Law (17/2012) is provided by DCAF, Geneva Centre for Security and Governance (link).
[xx] Official Twitter account of Minister of Interior, Mr. Bashagha: “We discovered many horrific crimes committed by the militias that controlled the city of Tarhuna, and our agencies are now documenting them. We found a container in which all detainees were burned, and we also found a number of mass graves of victims. Our initial reports proved that dozens of them were buried alive.”, June 10, 2020.
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