Report of the Independent Fact-Finding Mission on Libya (A/HRC/48/83) [EN/AR]

I. Introduction

1. Since the fall of the Qadhafi regime in 2011, the fragmentation of the State and the proliferation of weapons and of militias vying for control of territory and resources has severely undermined the rule of law in Libya. Libya has also been the theatre of quasi-uninterrupted armed conflicts. State and non-State actors alike, from Libya and abroad, are alleged to have taken advantage of this context to perpetrate violations and abuses of international human rights law (“IHRL”) and international humanitarian law (“IHL”) against the most vulnerable, including women, children, members of ethnic minorities, migrants, asylum seekers, and internally displaced persons. The violence has also had a dramatic impact on the Libyan economic fabric as well as on civic space, particularly for women. With the recent installation of the Government of National Unity (“GNU”), Libya has entered a phase of national dialogue and unification of State institutions. Nevertheless, the situation of human rights remains alarming and the process of holding accountable perpetrators of violations and abuses faces significant challenges.

2. The situation in Libya since 2011 has been the subject of investigations by two mechanisms mandated by the United Nations Human Rights Council (“Council”). On 22 June 2020, at the request of the Libyan government, the Council adopted resolution 43/39 requesting the United Nations High Commissioner for Human Rights to establish and dispatch a fact-finding mission to Libya. On 22 August 2020, the High Commissioner announced the appointment of Mohamed Auajjar (Morocco), Tracy Robinson (Jamaica) and Chaloka Beyani (Zambia/United Kingdom) as the members of the Independent Fact-Finding Mission on Libya (“Mission”), with Mr Auajjar as Chair.

3. The Mission was mandated to establish, in an independent and impartial manner, the facts and circumstances of the human rights situation throughout Libya, to document alleged violations and abuses of IHRL and IHL by all parties in Libya since the beginning of 2016, including any gendered dimensions, and to preserve evidence with a view to ensuring that perpetrators of violations and abuses are held accountable. The Mission was initially established for a period of one year and was requested to present a comprehensive written report at the Council’s forty-sixth session. The Council subsequently decided to postpone the presentation of the report to the forty-eighth session to account for the persistent impossibility of recruiting the Secretariat to support the work of the Mission. Despite the postponement of the report deadline, it was only in June 2021 that the Secretariat became fully operational.

4. At this juncture, the Mission finds itself unable to submit a comprehensive report on the human rights situation since 2016. A full determination on the violations and abuses committed throughout Libya over almost the last six years, including the identification of potential perpetrators, requires significantly more time. Nevertheless, since it was established, the Mission gathered hundreds of documents, interviewed more than 150 individuals and conducted investigations in Libya, Tunisia and Italy. The present report summarizes the findings which the Mission was able to reach on the basis of the information gathered, within the word limit for reports submitted to the Council.

5. As Libya is making progress towards peace, a fully-fledged fact-finding exercise is more than ever necessary. Past experience has shown that in post-conflict contexts, a comprehensive human rights investigation is an effective tool to foster accountability, deter further violations and promote long-term peace and security. The Mission therefore recommends the Council to consider extending its mandate for a period of time commensurate with its breadth.
   Political situation 6. In the first months of 2016, the parties to the Libyan Political Agreement worked towards the establishment of the Government of National Accord (“GNA”), which the United Nations Security Council had decided it would support as the sole legitimate government of Libya. However, the Tobruk-based House of Representatives (“HoR”), with which the ‘Libya National Army’ (“LNA”) and affiliated armed groups ostensibly aligned themselves, never agreed to the composition of the GNA. As a result of this political deadlock, the following years were characterized by parallel institutions exercising control over different parts of the country.

6. In January 2020, an international conference was held in Berlin (Germany), following which senior military officers from both the GNA and the LNA engaged in UN-facilitated discussions within the framework of the 5+5 Libyan Joint Military Commission. The discussions led to the conclusion of a ceasefire in October 2020. On the political front, a forum gathering representatives from all sides of the Libyan political spectrum adopted in November 2020 a roadmap providing for the establishment of a government of national unity and the holding of presidential and parliamentary elections in December 2021. In March 2021, the GNU was installed following a vote of the HoR. At the time of submission of this report, laws for parliamentary and presidential elections were being prepared.
   Cooperation of the Libyan authorities 8. In resolution 43/39, the Council urged the Libyan authorities to grant the Mission unhindered access to all Libyan territory without delay and to allow it to visit sites, and to meet and speak freely and privately, when it so requests, with whomever it wishes to meet or speak.

7. With the cooperation of the Libyan authorities, the Mission was able to travel to Libya, held exchanges with Libyan authorities, and visited sites. Yet, significant delays were experienced in obtaining the required visas, which interfered with planning and delayed the arrival of the Mission. During a meeting held in Tripoli in August 2021, the Minister of Foreign Affairs assured the Mission that the issuance of visas would be facilitated in the future. Special authorization procedures applicable to international organizations working in Libya impeded the Mission’s interactions with the authorities and also interfered with the Mission’s site visits. Furthermore, some requests to visit sites, in particular prisons and detention centres for migrants, remained unanswered.

8. Several Libyan-based non-governmental organizations (“NGOs”) were also reluctant to interact with the Mission in view of the Presidential Council’s decree of 2019 regulating the work of NGOs in Libya. They felt that notifying governmental authorities about their intent to meet with the Mission would expose them to retaliation. Consistent with the investigative principle of ‘do-no-harm’, the Mission decided not to engage with NGOs based in Libya.

9. The recent installation of the GNU may, at least in part, explain the delays and other difficulties faced by the Mission in Libya. Should the Mission’s mandate be extended, it is paramount that the investigations are appropriately facilitated by the Libyan authorities, including by granting access to all places and persons of interest. In particular, the Mission calls on Libyan authorities to ensure that anyone in Libya is free to approach the Mission, including NGOs. In this regard, the Mission invites Libya to review the decree regulating the work of NGOs in Libya.

Challenges

1. The Mission benefitted from less time and resources than initially projected, which curtailed its ability to conduct a comprehensive investigation. The Secretariat supporting the work of the Mission only became fully operational in June 2021, that is, three months before the deadline for the submission of this report. The delay was mainly due to the United Nations regular budget liquidity crisis and the concomitant suspension of recruitment. The deployment of the Secretariat to Tunis was also temporarily delayed due to the prevailing COVID-19 situation in Tunisia.

2. The Mission was also confronted with difficulties in the gathering of information. The investigations took place in a fast-changing environment, with incidents falling within the Mission’s mandate occurring as recently as September 2021. The current Libyan context was not conducive to witnesses freely sharing information. Indeed, even when a secure channel of communication existed, several individuals declined to engage with the Mission on account of fears of reprisals by State agents or militias. Furthermore, several victims also preferred not to be interviewed to avoid re-living their trauma. In Libya, the security measures accompanying the Mission’s movements increased the investigators’ visibility on the ground and discouraged some witnesses to come forward. For security reasons, the Mission was also unable to visit the south of Libya.