Who Monitors the Conscience of Society?
(Abu Salim Massacre as a Model)
Judgments of the judiciary are the title of the truth, just as the public prosecution is believed to be society's conscience, and absolute power is an (absolute evil) unless it is restricted.
Moreover, as a researcher in the field of law, the absolute, and unrestricted power, or let us say the power which is not subject to oversight, such as that is enjoyed by the institution of the judiciary, with all its components, has always been "the focus of discussion".
Taking into consideration, people’s fate was and still at the disposal of judicial entity, if so to speak. This entity is surrounded with intensive protection from interference of any other state apparatus. Among its prominent duties, we believed that this protection would facilitate issuance of verdicts and carrying out its duties more accurately and independently.
We even went further when we recognized that the supervisory body over the work of the judiciary is just a branch department within judiciary structure, where the (judicial inspection body) is a part of the judicial administrations. Under the principle: (the judiciary monitors itself) because the idea of the (judicial movement) is subject to each member of the judicial bodies, including the judicial inspection body itself, which oversees the implementation of this movement.
All of these controls are subject to the same people and the same apparatus, and this casts doubt over the matter, as it is natural to find a person who is today a judge subject to judicial inspection, Tomorrow we find him within the same judicial inspection apparatus. Therefore all A. are keen on such overlapped affiliation. In fact, there is no real capacity for proper supervision here. Rather, the standards for monitoring come from the same apparatus, in addition to the fact that any member of the judicial bodies who reach the rank of (adviser) no longer becomes subject to judicial inspection in the first place; With that being said, it is a prejudgment on all counselors that no mistake has occurred on their part, we are talking here about a complete impeachment process? This is what we see as an accurate interpretation of the Arabic proverb that says (For those who experience no punishment, will misbehave.)
However, when we see the practical side of these standards and values, we find out that a defect may occur, which is normal. This glorified apparatus is ultimately composed of a human element aware of the idea of what is right and wrong in the end. The principle of monitoring, , and evaluating is a logical idea, in clearer terms , many serious issues, where judiciary body was not independent due to its standards, and as a society, we had handed over to this body the responsibility of protecting our values and the path to lay justice. It is kind of betrayal, although judiciary is restricted with application of the law either directly or indirectly , namely (direct adherence to the text) or indirect (interpretation of the text). However, at the same time, the main issue is people has authorized it to apply, establish justice , and provide access to the truth.
When we as a people find that this apparatus has sometimes overpowered the interest of its image and placed it at the expense of the interest of the source of power, which is the people here, we must think about our interests.
This is the space that we have given to this apparatus. I will refer this speech to a group of events in which the judiciary was far from what the people had authorized for it, and at the same time, it does not contradict the correctness of the law.
Who among us does not know that the Abu Salim prison massacre, carried out by the Muammar Gaddafi regime in the 1990s, after which the regime tried to obliterate all signs of his crime for years.
There are conflicting accounts about the details and causes of the "massacre" that took place in Abu Salim prison on June 28 and 29 1996. For instance, the accounts of families of the murdered prisoners and Libyan human rights organizations that were residing abroad before the 2011 Libyan revolution said that special forces affiliated with the regime of Colonel Muammar Gaddafi raided Abu Salim prison, and shot the prisoners, the majority of whom belonged to the Islamist movement, claiming that they had rebelled inside the prison after they organized an open sit-in for demanding improvement of detention conditions. These accounts indicate that those Libyan forces killed during the operation about 1,275 prisoners, which is an extrajudicial execution, and then buried the bodies at the prison courtyard. In addition , scattered mass graves on the outskirts of the capital, Tripoli, a former detainee in this prison said for Human Rights Watch in 2003, “violence erupted when prisoners detained a guard who was bringing them food, and hundreds of people came out of their wards to protest restrictions on family visits and poor living conditions in the prison”, also it was reported that security forces transferred hundreds of prisoners to different squares and opened fire on them using heavy weapons, and rifles over a period of more than half an hour.
A statement issued on June 25, 2004, by the Libyan "Solidarity for Human Rights" organization, which adopted the case before the Human Rights Committee of the United Nations High Commissioner for Human Rights, based on what it said were Libyan citizens who were detained during the period from 1984-2003 inside Abu Salim prison. That the massacre followed a protest in prison at two o'clock that day, "it was possible to contain it and restore things to normal."
However, according to eyewitnesses, the organization said that after nine hours (i.e., about eleven o'clock in the afternoon of the same day), the massacre began using lethal weapons. Furthermore, among the inmates were those brought from other wards and included in the groups that had been killed. The organization adds that not a single prisoner was able to escape, and no weapon was seized. The official version indicates that the prisoners declared their rebellion against the prison authorities and detained a policeman inside the prison. Saif al-Islam al-Gaddafi said in August 2008 - when he was in charge of settling the file of the incident during his father's rule, that the killing took place during a "confrontation between the government and the rebels" of the Libyan group.
On September 8, 2009, the judge officially assigned to investigate the incident, Muhammad Bashir al-Khaddar (he held the position of the military prosecutor and worked as an advisor to the Supreme Military Court and the General People's Congress, meaning the Libyan parliament during the Gaddafi era) stated that he had many documents About the incident, which he said killed 1,200 people, including more than two hundred guards in prison, However, the Association of the Families of the Dead confirmed that the number of prison guards did not exceed 30.
The first official handling of the incident was Colonel Gaddafi's acknowledgment of it , following discussions between him and Amnesty International's representatives during their visit to Libya in February/2004.
In March 2009, the Libyan security services began informing about three hundred families of the victims of the accident of the deaths of their relatives, following the escalation of the people's movements through the vigils in front of the headquarters of the decision centers, saying "the Abu Salim martyrs are not inferior to the victims of the Lockerbie case. Furthermore, they used to demonstrate peacefully every Saturday morning in front of the North Benghazi Court to condemn the crime and demand the state to fulfill all the international covenants it had signed.>
Furthermore, prisoners tried to escape, but former prisoners confirmed that the guards indiscriminately shot prisoners outside the cells, resulting in many victims.[1] From here, the first questions raises about the performance of the independent judiciary, specifically the Public Prosecution apparatus, which is built into its structure. If we accept the argument that the political system at that time worked to obliterate its crime when it initially committed it, the prosecution was aware of the international reports issued by several organizations since the beginning of the year.
In 2003, in addition to the repeated question by the families of the victims about their relatives and they did not find an answer; the Public Prosecution considered such crimes to have jurisdiction initiating the criminal case, based on the fact that it is the conscience of society. Jurisdiction is just and reverent voice that defends against the tyranny of other authorities, and also according to the law in such criminal offenses did not oblige the latter to wait for the complaint of the affected, but instead authorized them and held them responsible for initiating the criminal case whenever it received information indicating that a crime had been committed.
Our just conscience did not do this!, the other issue, in this context, is what the Muammar Gaddafi regime did when it confessed to the massacre in 2004, as shown above. From 1996 until 2004, when the political leadership demanded to investigate the killings, it seems that our conscience moved; this conscience that we believed until then, which expresses us and does not express the state's political system? .
After that, as time passes ,until fate wrote a new chapter in the history of our people, this chapter was entitled toppling the Muammar Gaddafi regime ,and the arrival of the Libyans to a real opportunity to fulfill their rights again and to hold accountable all those who committed crimes against them during these lean years. Tripoli Appeals Court, in its session held on December 15, 2019, issued its ruling in Case No. 100/2014 with the fall of the crime due to its expiration of time, related to the Abu Salim prison massacre, and the verdict came as follows: "After perusal of the papers and deliberations, and on Articles 210-275-345-348, and Articles 105 and 107 of the General Penal Code. In the name of God, the court ruled for the twenty-third defendants / Ahmed Saad Al-Farjani Al-Zaghdani, the forty-ninth / Milad Salem Salim Al-Sadiq, the seventy-third / Omar Arhouma Salem Al-Haddad, the seventy-fourth / Al-Shaibani Abdul Salam Al-Shaibani, and the eighty-fifth / Muhammad Masoud Aseel, with the fall of the crime attributed to them for their deaths before conviction.
Furthermore, the court ruled absentia for the ninth defendant / Saeed Al-Awar, and the seventy-ninth / Misbah Muammar Al-Mahdi, and in the presence of the rest of the defendants with the fall of the crime attributed to them by the passage of time.[2]
This is considered a second chapter of the chapters of the just judiciary's position before the fate of a massacre committed against the conscience of society, which resorted to a legal course that is in fact correct. The ruling indicates the statute of limitations period prescribed at the time of committing the criminal act, because the Libyan legal system was working under the statute of limitations for the crime.
At that time, legal system returned at another time and canceled this issue, but based on the principle of (the law in force at the time of the commission of the crime), the crime is considered to have become obsolete by the passage of time. Although there are those who believe that the judiciary has another course that also corresponds relatively to the correct law, which was applicable during this period where force majeure imposed ,and the actual impossibility of accusing the symbols of the regime by the families of the victims of committing this crime, which leads to stopping the calculation of the period until the circumstance of force ends. Cairo, which was still only after the outbreak of the revolution, at which time it is possible to start calculating the legal period based on the same principle that the court relied on in its ruling.
However, it preferred to take the first path because it wanted to prove to the Libyans that it was not subject to the political decision at that time. Furthermore, their conscience was sober and not politically drugged, and I preferred its image over access to the truth.
Yes, this truth is the basis of its existence and the people's authorization to be its title. Rather, going to the first path that the judiciary followed in its ruling above gives us the legitimacy to ask about the role of the judiciary in dealing with this issue over the past years? Why did it stop watching the years go by while it was aware of the statute of limitations on the crime by the text relied upon in its ruling above, without performing the work entrusted to it? Alternatively, has our conscience been subjugated indirectly or directly to political authority throughout these years until we reached this difficult scene in which we see our rights lost under the banner of the law and our false belief in the independence of our judiciary?
Then the judiciary returned on June 15, 2022, when the First Criminal Chamber of the Tripoli Appeals Court ruled that it had no jurisdiction to hear the case in the case of the Abu Salim prison victims and referred the case file to the military judiciary.
The court based its ruling on several legal grounds, including the amendment contained in the Military Penal Code under (Law No. 4 of 2017 AD regarding the amendment of some provisions of the Military Penalties and Military Procedures Laws), which stipulated in its first article that (the provisions of this law apply to 1. Military personnel 2. ,Civilians working in the Libyan army on alert 3., Military prisoners 4., Armed militias, 6. Perpetrators of terrorism crimes).
What appears from the surface of the case is that the court has built its belief that when the people accused of committing this act, participating in it, and inciting against it are from the military, then its conscience is reassured by what it has ended up with.
On the other hand, this ruling represents an escape from a case that has been languishing in the judiciary for years, but is the ruling lacking jurisdictional jurisdiction the solution? Jurisdiction or (functional) jurisdiction determines the judicial body within whose jurisdiction the conflict falls, and it is intended to distribute work between the various judicial bodies, "the ordinary judiciary and the military judiciary in this case."
So does the ruling of the Tripoli Appeals Court oblige the military judiciary to consider the case? The answer to this question is (No). The military judiciary may find itself obliged to rule lacking jurisdiction, given that the ordinary judiciary was the one who initiated the criminal case, that the Public Prosecution had initiated the case and completed the investigations, and that the ordinary judiciary had ruled in this case before and that the Supreme Court had overturned the ruling of the trial court at that time the papers were referred for consideration by another body.
Many of these rulings and procedures took place after 2017, after the amendment of the Military Penal Code, so what is the solution if the military court ruled that it lacked jurisdiction? The hypothesis of negative conflict is: that two courts give up their jurisdiction without deciding on the issue, and in this case, the resolution of this conflict is within the jurisdiction of the Supreme Court, which is the only judicial body entrusted with ruling the jurisdiction of a judicial body to consider the dispute.
(The Supreme Court is the same court that overturned the Tripoli appeal ruling that the case was dismissed due to the statute of limitations and referred the case to another body). These premises I mentioned were not intended to undermine the judiciary.
We do not imagine this because if we deliberately did that, it would be as if we were eating our conscience coldly. Rather, the real goal is to reach a perception that might give us hope for realizing the real independence of our judiciary away from the possibilities and waiting on spectators and our rights. We are lost, and our judiciary is restricted. That is why we believe it is essential to embody the idea of monitoring the judiciary's work more effectively and, at the same time, not affecting its independence or restricting its work.
In the same hierarchical rank, its members are elected by all members of the judicial bodies. The personalities running for this position are from within the judicial system with specific criteria that guarantee their independence from any internal or external influence, including that the candidate has retired from the judiciary and has a good history of fair and just rulings.
Furthermore, to grant this department an independent financial disclosure and to work periodically to monitor all departments of the judicial institution and take appropriate measures by the law to evaluate it.
Here we guarantee that the judicial system with all its departments, from members of the Supreme Judicial Council to prosecutors' assistants, are subject to real supervision by an elected administration that is subordinate to the people and held accountable by it. Our aim is as much as possible, and we come up with a living institution concerned with the rights of the people who have authorized it to assume the most sacred value in this world, which is the responsibility of the scale of justice.
In conclusion, I would like to evoke an idea that emulates what we are discussing on the words of Judge Ahmed Rahmouni, head of the Tunisian Observatory for the Independence of the Judiciary (The judges’ failure to submit to societal accountability leads to considering their criticism as the only way that allows commenting on their work, and recognizing the citizen’s right to criticism enables them to impose reforms to the judicial system, in addition to contributing to improving the performance of the judiciary, and reliance on internal control mechanisms does not seem sufficient because of the solidarity observed by judges among themselves, and the right of individuals to comment impartially on judicial affairs derives its legitimacy from freedom of expression and the right to exercise that from Before all the actors in the judicial system) publicly we reach to re-establish confidence in our conscience to return to the people and to the people.
... [1] Al-Jazeera Net https://www.aljazeera.net/encyclopedia/events/2016/10/10 10 - 10 - 2016 - Doha - press report
[2] Gateway to the Center http://alwasat.ly/news/libya/267068 15 - December - 2019 - Cairo - press release
Translated by : Lamia Baick Darna