Addressing human rights abuses in post Gaddafi Libya - Essay Example

? HUMAN RIGHTS LAW RESEARCH: ADDRESSING HUMAN RIGHTS ABUSES IN POST GADDAFI LIBYA of Date Question 1 A: Legal Alternatives to a TRC in Seeking Justice Human Rights Abuses The 2011 Libyan revolution was a form of armed conflict that occurred between 15 February 2011 and 23 October 2011. The revolution pitted the forces that were loyal to the then Libya leader Colonel Muammar Gaddafi against those who were seeking to oust Gaddafi’s government. What began as clashes between protesters in Benghazi with security forces later escalated into a revolution across Libya with those opposed to Gaddafi’s government establishing the National Transitional Council; their interim governing body. During the revolution, various atrocities were committed against the Libyan people thus violating the human rights provisions. The forces that were loyal to Gaddafi committed most atrocities; there are also allegations that those who were opposed to Gaddafi’s government committed some atrocities as well. There were crimes against humanity such as murder, torture, rape, enforced disappearance of people, and extermination among other inhumane acts that caused serious physical and mental injuries to the people of Libya. It is for this reason that Truth and Reconciliation Commission (TRC) is necessary in order to address the spirit injuries of all kinds that occurred during the revolution. According to Sunga (2009), a Truth and Reconciliation Commission refers to a commission mandated with the responsibility of discovering, investigating, and revealing the past atrocities, injustices, and any other kind of wrongdoing by actors, with an aim of addressing the injuries caused by those acts, hence resolving the conflict that may be within the conflicting parties. The actors can be the government or non- state actors depending on the circumstances. The main aim of TRC is to ensure that the conflicting (or that conflicted) parties are able to co- exist peaceful, and that there will be no recurrence of such acts in the future (p. 4). In the case of Libya, there is no guarantee that the Libyans will accept TRC due to varying reasons. Assuming that they have rejected TRC to address the spirit injuries of all kinds that occurred during the revolution, there are proposed legal alternatives based on international, regional or national laws. First, it is important to state two major possible that would make the Libyans reject TRC. First, they may feel that TRC will allow those who committed crime against humanity to get away with it hence denying justice to the victims. Secondly, they may fear that TRC will take long to address their injuries thus delaying justice to the victims; justice delayed is justice denied (Hayner 2001, p.9). Based on the international law, the legal alternative to TRC in addressing the crimes committed is on prosecution of those accused of perpetrating the atrocities. Since Libya is not a State party to the Rome Statute, the situation in Libya was referred to the ICC Prosecutor by the UN Security Council through the unanimous adoption of Resolution 1970, on 26 February 2011. The Crimes against humanity committed in Libya during the revolution are defined under Article 7 (1) of the Rome Statute (Rome Statute of the International Criminal Court, 1998). As such, the legal alternatives to TRC based on international law will be prosecution of the crimes’ suspects in the International Criminal Court (ICC). Concerning legal alternatives to TRC based on regional laws, the laws will fail to address the spirit injuries of all kinds committed during the revolution. This is because the rule 26 of African Court on Human Rights and Peoples Rights state that the court do not have jurisdiction to hear criminal cases. Therefore, since the atrocities committed in Libya were of criminal nature, the regional court will not provide any suitable alternative since the victims will feel aggrieved. The national law may provide alternative to TRC because domestic courts can prosecute the suspects. According to United Kingdom Home Office Report (2011), Act No. 6 of 2006 governs the Libya’s judiciary. It has laid down the legal principles, rules, and precepts in regard to legal proceedings. However, the report disputes the Libya’s legal capacity to handle those cases; the report argues that the Libyan courts lack the infrastructure, resources, and expertise to meet the international trial standards. Therefore, it is evident that the national law will also fail to provide legal alternative assuming Libyans have rejected TRC. Apart from the international law, the regional and national law have proved inadequate to address the spirit injuries caused by the Libyan revolution. Assuming that Libyans have rejected TRC, non- legal alternatives can also prove viable. Governance and Social Development Resource Centre [GSDRC] (2011) lists various non legal alternatives to pursuing peace while upholding justice and the rule of law in Libya. These include reparations, which aim at redressing past injustices while providing rehabilitation, compensation and satisfaction for the victims. Reparations may take the form of symbolic measures such as public apologies, disclosure of truth, and commemoration of victims. Memorialisation may be another viable approach to addressing the existing tensions and divisions occasioned by the aftermath of Gaddafi regimes atrocities. In some instances it is the best way to recover from past atrocities. Museums and memorials represent important sites where people can use to confront their pasts. Vetting, a process whereby those considered to lack integrity due to their past wrongdoings are excluded from holding public offices or are removed from public offices and it forms part of non- legal alternative to TRC. This ensure a new crop of leaders of leaders take over the instruments of power to foster truth and reconciliation as opposed to leaders associated with the previous regime who would only engage in cover-ups and further commission of crimes. The healing process can also take the form of amnesty by granting an olive branch to perpetrators of crimes against humanity is also a non- legal alternative that seeks to promote reconciliation. Question 1 B: Legal and Political Rights Relevant to Constitutional Reform in Libya Since the conflict has ended, there is need for constitutional reforms in order to ensure that Libya becomes a democratic state. As a democratic state, Libya citizens will be able to enjoy unprecedented freedom and be able to influence decisions that affect their lives. This will be a break from the past as they were used to limited freedom and the government, specifically, Gaddafi and his cronies made most decisions. Conte and Burchill (2009) explain civil and political rights as the types of rights that are designed to protect the freedom of individuals from unwarranted infringement by the private organizations and the government, in addition to ensuring that citizens are able to participate in the civil and political life without being discriminated against or repressed (p. 2). Therefore, the following civil and political rights should be incorporated into the Libya’s new constitution; freedoms of speech and expression, press, religion, from arbitrary search and arrest, thoughts and conscience, and freedom of movement. in addition, the following should be included; the right to vote, to fair trial, to legal remedy, to assemble, of self- defence, of association, to petition, to own property, and the right to hold the leaders accountable. These rights should be guaranteed to all citizens regardless of their race, gender, sexual orientation, age, national origin, religion, and mental or physical disability. The revolution brought with it economic, social and cultural implications; the economic stability was interfered with, the social fabric torn apart, and the cultural aspects changed. Economic, social, and cultural rights are defined as socio- economic human rights that facilitate the general wellbeing of the people about their day- to- day activities (Conte and Burchill, 2006, p. 4). International, regional, and national rights have provisions that recognize and protect these rights. The UN Universal Declaration on Human Rights of 1948 recognizes these rights. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) provides the legal foundation for these rights. Therefore, the new Libya constitution should also incorporate these rights: right to health, right to housing, right to education, right to social security, and right to rest and leisure. In addition, these rights should be included in the constitution: right to benefits of science and culture, right to food, right to protection of family. Furthermore, the constitution should incorporate the following rights: right to join trade union, right to protection from economic exploitation, right to a job, right to participate in cultural life, right of religious, linguistic, or ethnic minorities to engage in their culture, use their language, and practice religion, and right to an adequate standard of living. With these rights guaranteed in the constitution, the government will be obliged to protect them; hence, the citizens will be able to enjoy quality life. Even though all the listed economic, social, and cultural rights are essential for quality lives among the Libyan citizens, I feel that the right that must not be adopted into the constitution is the right to job. This is because in spite a person’s right to take the job, the decision still lies with the person hiring him or her; this decision is determined by a number of reasons such as the qualifications, skills and experience of the person being hired. Therefore, the prospective employers should not be obliged to employ in disregard of their concerns. It is nearly undisputable that women in Libya have been discriminated against for many years; in most cases, religion has been used as the basis of their discrimination. The restriction and exclusion of women in Libya have been based on their sex hence impairing their recognition, participation, and enjoyment in the Libyan society. As a result, they have not enjoyed equal rights with men in civil, social, economic, cultural, and political fields. Therefore, the civil right ‘protection against discrimination on grounds of gender’ will most advance the cause of women rights in Libya. this is because this right will enable the women in Libya will have equal rights with men to participate actively in political, social, and economic fields just like men. Men will no longer have undue advantage in these fields as women will have rights to participate in equal measures as men. Besides, in an event that men, leaders, or any other person or institution in the society attempt to discriminate against them, women will have right to sue these individuals. Apart from that, this right will ensure that women enjoy and exercise the other rights without fear of intimidation or repression. As such, they will express their thoughts and ideas freely. They will also have the freedom to associate even with men, freedom to assemble, in addition to right to petition. Therefore, t is evident that the right will guarantee the protection of women’s rights in Libya. Question 2 A: Generally, minority rights refers to the rights that are attributed or accorded to ethnic, sexual, religious, racial, class, and linguistic minority groups. Therefore, sexual minority refers to a group whose sexual practices, orientation, or identity differs from the surrounding society’s majority. Majorly, the term is used to refer primarily to gays, transgender, bisexual, and lesbians. Presently, the rights of sexual minority is enshrined under the UN Universal Declaration of Human Rights (UDHR) of 1948, although not explicitly. Article 2 of UDHR guarantees every individual of all the rights and freedoms contained in the Universal declaration of Human Rights irrespective of their sex, religion, political party affiliation, social origin or status in the society. It is important to note that this document was published at a time when the issue of sexual minorities had not gained prominence; most religious groups considered homosexuality as a mental illness or sin, while most governments regarded it as a criminal act. There was very little understanding of transsexual/ transgendered persons (Robinson, 2011, p. 1). However, since then, sexual minorities have increased across the world prompting some countries, municipals, and cities to guarantee equal rights for people of all sexual orientations. Unfortunately, UDHR has not been updated accordingly to address the sexual minorities’ rights. UDHR has a major deficiency concerning rights of sexual minorities; it is not universal. Some countries such as Canada and the U.S have ignored most of UDHR sections about its provisions on the treatment of sexual minorities. For example, some US states have ignored Article 16 (1) that criminalizes interracial marriages. As a result, of increased number of sexual minority population across the world and the entrenchment of rights of sexual minority rights in the laws of many countries, cities and municipals, UN has contemplated entrenching these rights in its conventions. It has therefore proposed a new Convention on the Rights of Sexual Minorities (homosexuals, bisexuals, lesbians, and transgendered individuals. UN Human Rights Council, in mid- 2011, showed a collective willingness to address the oppression and discrimination of the sexual minorities. The Council passed a declaration on June 17, 2011 that expressed serious concerns of how the sexual minorities are oppressed, discriminated against, and violence meted on them across the world, just because of their gender identity and sexual orientation. The declaration was introduced by South Africa and was supported by many countries (23 votes against 19). However, there was opposition from some countries particularly the Vatican who argued that bisexual, homosexual, and transsexual orientations are disordered states, and therefore, some forms of discrimination against them are justified (US Department of State, 2011). The UN should not adopt a new Convention on the Rights of Sexual Minorities since the existing conventions protect sexual minorities to degree they deserve to be protected. Every person deserves equal treatment regardless of his/ her backgrounds, status or orientations. Article 1 of UDHR acknowledges this and states, "All human beings are born of free and equal rights and dignity. They are born with reason and self conscience that should guide them to embrace one another in a spirit of brotherhood. In addition, Article 2 acknowledges the rights and freedoms that should be accorded to individuals regardless of different basis of discrimination. In addition, Article 12 protects individual’s rights to privacy among other aspects by stating that no individual shall suffer arbitrary interference on his property or life or be subjected to attacks demeaning on his/her honour or dignity. However, Article 16 (1) argues against the fundamentals of sexual minority rights especially by stating that marriage should be of opposite gender. The Article further grants men and women who attain the majority age the right to marry and form a family without infringement due to religion, race, or nationality. From the existing provisions in the UN conventions, it is clear that rights of sexual minorities are protected but limited as well. The new Convention seeks to widen the spectrum of rights that sexual minorities enjoy. This will provide the sexual minorities with more rights in regard to how they practice their sexual orientations. However, I do not consider the new Convention on the Rights of Sexual Minorities necessary. The existing Conventions protect sexual minorities to the extent that they deserve because their sexual orientation is yet to be recognized. Therefore, the existing conventions address only the fundamental human rights that are universal to all human beings regardless of their sexual orientation. Thus, the protection of the rights of sexual minorities is protected to the degree that they deserve through the fundamental human rights that is universal to all people across the world. New UN Convention that simply addresses the rights of sexual minorities will be selective and will defy some of the fundamental laws regarding human rights already entrenched in the UDHR. Question 2 B The existing conventions do not sufficiently address the rights of sexual minorities. Article 2 is the only part in the UDHR that touches on the rights that relates to sex; however, the article itself is deficient as it fails to address sexual orientation and gender identity (Robinson, 2011). In fact, the provisions of UDHR do not provide on how issues of sexual orientations and gender identity should be treated. It is due to this deficiency that countries such as Canada and the United States of America went ahead and ignored the Articles that tend to limit the rights of sexual minorities. For instance, some of the US cities and states have ignored Article 16(1) of the UDHR that states that marriage should be between persons of opposite sex. According to Conte and Burchill (209), the UN failed to accommodate numerous rights in the UDHR in 1948 because of the social, political and economic orientation of that time; therefore, some of its rights have been passed by events and needs to be updated accordingly to meet the needs of the people of current and future generations (p. 92). Therefore, it is strange to find that UDHR is deficient on the rights of sexual minorities. The UDHR was ratified at the time when most of the people viewed homosexuality, bisexuality, and transexuality as mental disorder and behaviours associated with them were considered criminal. This explains the reason why UDHR did not include anything to do with sexual orientation (Robinson, 2011). It is noteworthy that failure by the UN to update UDHR to accommodate new forms of rights was defiance of a key characteristic of law; dynamism. It is undisputable that sexual minorities forms a significant portion of population across the world and therefore they cannot be ignored. There have been notable changes in the engagement human rights and sexual relations for over two decade. The main concern in present times is no longer how the two interrelate, but on what purpose and basis are they interrelated; also, what aspects and limits of sexuality does human rights impact on (International Council on Human Rights Policy, 2009, p. 7). The concerns about sexuality and human rights have not only been necessitated by the need to accord equal rights to all people regardless of their sexual orientation, but also by the following factors; prevalence of HIV/ AIDS and the necessity to reduce its spread, globalization, and the increased migration concerns. Convention on UN rights on sexual minorities is important because it will make a strong claim to the universality of the UN human rights law, which at the moment is not considered universal because it fails to address the issue of sexual minorities adequately. Sexual rights will be recognized as human rights thus enabling all persons to express their sexual orientations without fear of oppression or discrimination. Also, the convention will offer immense transformational potential in the society concerning how the society views the sexual minorities, hence, reducing or possibly eliminate discrimination against them. Apart from that, the convention will go a long way in helping the sexual minorities to live quality lives; they will be able to access the highest standard of sexual health that can be attained including access to reproductive and sexual reproductive health care services. Besides, just like the sexual majorities, they will be able to choose their partners openly and obtain consensual sexual relations and marriage. They will also receive the respect of others (International Council on Human Rights Policy, 2009, p. 13-14). From the discussed benefits, it is clear that the phobia that was there previously on sexual minorities were unfounded and untenable; the sexual minorities and the society in general are going to benefit more from the Convention than in its absence. Therefore, which rights should be included in the Convention, in order for these benefits to be realized? The first right is the right of privacy of the sexual minorities. The Convention should include provisions that vales the support of privacy and provide means of punishing those who violate it. The sexual minorities deserve privacy and it should be respected. Secondly, the Convention must include the provisions on rights to expression for the sexual minorities. Without this provision, sexual minorities have been experiencing difficulties in making advances to their potential partners for fear of oppression or repression. Therefore, this provision will guarantee them the rights to express their feelings toward other persons without fear of whichever kind. Sexual minorities should be in a position to easily express themselves through their speeches and dressing among other ways of expression. Moreover, the Convention must contain the provisions on the right of sexual minorities to assemble and associate. Due to the deficiency in the current conventions, the rights of sexual minorities to assembly and association have been limited. This has led to limited decision making regarding their sexuality in addition to the society condoning their discrimination. However, just like among the sexual majorities, there should be certain ways of regulating their freedom of expression, privacy, assembly, and association. The convention should cover all kinds of sexual minorities. This is essential in order to avoid future difficulties in incorporating rights for some kinds of sexual minorities (Robinson, 2009). Reference African Court on Human Rights and Peoples Rights, Available www.achpr.org (Accessed: 2011, December 2). Conte, A., & Burchill, R 2009, Defining Civil and Political Rights, Ashgate Publishing. Governance and Social Development Resource Centre [GSDRC] (2011). Justice. Available: www.gsdrc.org (Accessed: 2011, December 2) Hayner, P, 2001, Unspeakable Truths: Facing Challenge of Truth Commissions. New York, NY: Routledge. International Council on Human Rights Policy, 2009, Sexuality and Human Rights, Available: www.ichrp.org/files/reports/47/137_web.pdf (Accessed: 2011, December 3) Leckie, S., & Gallanger, A 2006, Economic, Social, and Cultural Rights: A Legal Resource Guide, University of Pennsylvania Press. Rome Statute of the International Criminal Court, 1998, Available: http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (Accessed: 2011, December 2) Sunga, L 2009, Ten Principles foe Reconciling Truth Commissions and Criminal Prosecutions, The Legal Regime Of the ICC 1075- 1108. United Kingdom: Home Office, Country of Origin Information Report - Libya, 25 July 2011, http://www.unhcr.org/refworld/docid/4e37e2ea2.html. Read More