Magdulein Abaida ( v. Libya

The author of the communication is Magdulein Abaida, a national of Libya born in 1987. She claims to be the victim of a violation by Libya of her rights under articles 1, 2 (b), (d) and (e), 3, 5 (a) and 7 (c) of the Convention. The Convention and the Optional Protocol thereto entered into force for the State party on 15 June 1989 and 18 September 2004, respectively. The author is represented by counsel, Juergen Schurr of REDRESS.

The author has lived in the United Kingdom of Great Britain and Northern Ireland, where she has refugee status, since September 2012. Before her departure from Libya, she worked as a financial assistant and translator for journalists, companies and regional bodies in Tripoli. As a women’s human rights defender, she had registered her own women’s rights organization, Hakki (“My Right”), and collaborated with Creative Associates International, DanChurchAid and other organizations for women’s empowerment.

On 7 February 2012, she participated in a demonstration in Tripoli, “Libyan women’s day of anger”, about the lack of quotas for women in the national elections and comments by the Chair of the National Transitional Council on men having multiple wives. The organizers’ names, including the author’s, were subsequently published on Libyan Facebook pages. She and others received messages accusing them of trying to destroy the Islamic way of life. The commander of a powerful militia, the Martyrs of 17 February Brigade, claimed that the organizers had repudiated their own culture, including by not covering their hair. As a consequence, the author and others were afraid to leave their homes.

Later that month, in an interview on Libyan television, the author explained the reasons for the demonstration and commented on women’s rights in Libya. The following month, filmmakers interviewed her about the situation of women in Tripoli. She helped them to conduct interviews with a number of women in Tripoli, Misratah and Zuwarah. On their way back to Tripoli, she and the filmmakers were stopped from filming by armed men, who prevented them from leaving. Eventually, an officer took their footage from them and released them.

In June 2012, while working as a translator for a European Union adviser, the author met a Libyan Jewish representative, R., for whom she began to work as a translator for three journalists making a documentary. She had understood the lead journalist to be French but was later informed that he was an Israeli citizen.

On 19 July 2012, in Benghazi, the author was interviewed about the human rights situation in Libya, as a contribution to the documentary. She believes that she was covertly filmed by an unknown man. At a makeshift checkpoint on the way to the airport, armed men stopped the car and told the occupants, including the author, that the vehicle had to be checked for explosives. They were taken to a compound, where guards told the author that her belongings made her suspicious. They asked about her relationship with R. and whether she preached Judaism. She was released, without her belongings, after four to five hours of interrogation. On 20 July 2012, she returned to Tripoli, where she filed a complaint about her arrest and detention with the National Council for Civil Liberties and Human Rights. The Council issued a memorandum about her case; however, she subsequently received no further information. She was later informed that R. had been detained for 10 days, that one of the journalists worked for an Israeli television channel and that pictures of her and others with R. had been published on social media, where they were depicted as traitors. She received threats, including comments that she and others in the pictures should be executed.

On 9 August 2012, when the author was participating in a workshop on women’s rights in Benghazi, some 7 to 10 armed men, with 30 more bearing Kalashnikovs posted outside, interrupted the workshop and took three participants away. The author was among those who were told to return to their hotels. Later that day, members of the Martyrs of 17 February Brigade took her to a compound, where she was detained. Guards questioned her about her relationship with R. and a Hakki colleague who had also been detained and told her that women were forbidden to travel unless accompanied by a male. A man bearing Ministry of Defence identification took her and the Hakki colleague to a Ministry compound, where she was questioned about what she would write about her abduction and why she had written publicly about her earlier detention. She was released on 10 August 2012. An interrogator subsequently told her that she should have been executed for her perceived relations with Jews.

On 11 August 2012, on their way to Benghazi Airport, the author and the Hakki colleague were arrested by members of the Martyrs of 17 February Brigade, who took them to a compound where they saw cars marked “Supreme Security Committee”. Despite the fact that it was Ramadan, she was offered water, which she believes was intended to demarcate her from practising Muslims. An officer shouted at her and started kicking her all over her body, calling her a “bitch” and a “whore” and accusing her of being Israeli, of having relations with a Jew and of being an Israeli spy. He hit her with his gun and threatened that he could kill her there and then and no one would find out. The assault lasted approximately half an hour and left her barely able to move. In an office in the compound, she recognized two men as belonging to the Martyrs of 17 February Brigade. She was shouted at and grabbed by the hair. Another man, S., introduced himself as a Supreme Security Committee investigator, asked her about R. and made the accusation that Hakki was a “prostitution organization”, supporting Jews and Israel. The questioning continued until around 4 a.m. on 12 August 2012. She was released on the condition that she return the same day.

Later that day, members of the Martyrs of 17 February Brigade and the Supreme Security Committee returned the author to the compound. S. told her that he and the Deputy Interior Minister had been discussing her case and thought that she had been inadvertently working for Israel. She was released on the condition that she return the next day.

On 13 August 2012, the author returned to the compound, where she was made to meet the Deputy Interior Minister, who complained to her about the “noise” that she had created in the media. He did not enquire about her injuries, which were clearly visible, and laughed when she told him that laws on street harassment would be a “good start” in terms of women’s rights. He told her to sign a letter stating that she would not deal with Jewish organizations or people; however, she wrote that she would invest her skills and energy in her country. He released her, warning her that she could be questioned anywhere. On 14 August 2012, she returned to Tripoli.

Following her return, the author could not resume her non-governmental organization (NGO) work, as she was receiving hate mail, including letters from members of the public threatening to kill her. Between 15 and 17 August 2012, she was called by a man whom, on 11 and 12 August 2012, she had identified as a member of the Martyrs of 17 February Brigade. She felt unable to reject his call or express discomfort for fear of reprisals. She was also contacted by S., through Facebook. He asked her to work with the Supreme Security Committee on a national reconciliation project. She did not refuse outright, out of fear, although she did not follow up after her departure from Libya in September 2012. She still fears the State party’s Government, as well as citizens who have been led to believe that she is an Israeli spy.

With regard to the requirement for the exhaustion of domestic remedies, the author explains that, following her return to Tripoli, she was unable to file a complaint because she feared persecution. In 2013, REDRESS submitted a complaint on her behalf to the Libyan Prosecutor General, claiming that she had suffered discrimination on the basis of her sex. Receipt was confirmed, but she found out only through contacts that her complaint had been forwarded to the Attorney General in Benghazi. Despite follow-up attempts, she has received no other response and it does not appear that the Prosecutor General’s office has begun an investigation. The author argues that the Prosecutor General’s failure to investigate has coincided with the breakdown of the rule of law in Libya, resulting in the absence of a functioning justice system. The author concludes that domestic remedies have been unreasonably prolonged, are unavailable and are unlikely to bring effective relief.

The author claims that, because of the involvement of the Ministry of the Interior and because the conduct of the Martyrs of 17 February Brigade and the Supreme Security Committee are attributable to the State party, the State party is responsible for the treatment to which she was subjected. In this regard, she argues that both the Brigade and the Supreme Security Committee act as an extension and at the behest of the State party and perform its functions. The Brigade claims to work with the Ministry, while the Supreme Security Committee serves as an auxiliary police and intelligence service and is nominally paid for and under the authority of the Ministry. In the author’s case, this is corroborated by the statement of the Supreme Security Committee investigator, S., that he had discussed her case with the Deputy Interior Minister and by her meeting with the Deputy Minister. He stated publicly that she had been arrested by “a legitimate force affiliated to the Interior Ministry”.5

The author submits that the State party has violated her rights under article 1 of the Convention as it discriminated against her on the basis of her sex and as a defender of the human rights of women. She argues that the Supreme Security Committee subjected her to severe pain and suffering while she was in detention from 11 to 12 August 2012, including exposure to gendered and sexual verbal abuse, kicking, blows with a gun and a death threat, which violated her right not to be tortured and resulted in her being diagnosed with post-traumatic stress disorder. Given her arrest during a women’s rights workshop and the questioning on Hakki immediately following her torture, the authorities were clearly attempting to punish her for and force her to cease her women’s rights work and to discourage her from breaking gender norms.

Also in violation of article 1 of the Convention, the authorities arbitrarily arrested and unlawfully detained the author on 19 July, 9 August and 11–12 August 2012. On 19 July 2012, the vehicle in which she was a passenger was stopped on the ground that it had to be checked for explosives, but there was no basis for any such suspicion and she was instead questioned on unrelated matters. On 9 August 2012, the Martyrs of 17 February Brigade took her from her hotel to a compound, where a Ministry of Defence official questioned her. On 11 August 2012, she was again arbitrarily arrested by the Brigade and detained and tortured. None of the arrests was based on Libyan law; she was never served with a warrant or charged with a crime; and she had no access to a lawyer. The arrests and detentions were therefore unreasonable and unnecessary.

Furthermore, in contravention of article 1 of the Convention, the State party violated the author’s right to freedom of expression. She had organized a demonstration, collaborated with documentary makers and spoken out in interviews and on television about women’s rights. In view of the fact that the authorities arrested her during a women’s rights workshop and interrogated her about her activities as a defender of the human rights of women and about her NGO, this treatment must be considered as partially motivated by her exercise of the right to freedom of expression. She submits that her actions did not threaten national security or public order and that the restrictions imposed were clearly disproportionate.

The State party also breached the author’s right to freedom of association under article 1 of the Convention. She had founded and run Hakki, a women’s rights organization, but in response, the authorities arrested, detained and tortured her and questioned her about the organization, which they called a “prostitution organization” supporting Jews and Israel. She submits that the restrictions on her exercise of the right to freedom of association were disproportionate and discriminatory and intimidated her into ceasing to run the organization.

Referring to the Committee’s general recommendation No. 19 (1992) on violence against women6 and its decision in M.E.N. v. Denmark,7 the author argues that the treatment to which she was subjected was discriminatory and constituted gender-based violence, as it was directed against her as a woman and aimed at stopping her from working on women’s rights. She argues that the treatment should be understood in the context of a pattern of discrimination against women in Libya and a patriarchal culture in which deeply rooted stereotypes have persisted after the 2011 revolution.8

The author also submits that the State party has breached her rights under article 2 (d) of the Convention, as she was targeted as a woman breaking gender norms and was subjected to gender-specific treatment designed to intimidate her into ceasing her women’s rights work.

The author further submits that the State party has violated her rights under article 3 of the Convention, which she submits covers the State party’s obligations to respect, protect and fulfil, inter alia, the right to be free from torture, the right to liberty and security of person and the freedoms of expression and of association. She argues that the discrimination to which she was subjected and the authorities’ attempts to make her cease her NGO work and flee Libya amount to a violation of article 3.

The author also claims to be the victim of a breach of her rights under article 5 (a) of the Convention. Referring to the Committee’s observations on “the persistence of entrenched, traditional stereotypes regarding the roles and responsibilities of women and men in the family and in society at large” in Libya,9 she argues that it was such stereotypes that contributed to her being targeted for torture, arrest and arbitrary detention, as well as the gender-specific abuse to which she was subjected in detention.

The author further claims to be the victim of a breach of her rights under article 7 (c) of the Convention. The authorities failed to protect her from hateful and threatening emails, letters and messages concerning her involvement in women’s rights issues and stated that she had repudiated her culture and should be executed. They pressured her to give up her activism and sought to coerce her to work for the Supreme Security Committee.

Finally, the author claims to be the victim of a violation of her rights under article 2 (b) of the Convention, having received no reparation or any other response to her complaint submitted to the Prosecutor General.

The author requests remedies, including monetary compensation for material and non-material damages, funds for continued psychological treatment and a prompt, thorough and independent investigation to hold those responsible accountable. She also requests that State party publicly apologize and accept responsibility. Finally, she invites the Committee to issue general recommendations to the State party. Absence of State party’s observations

On 11 July 2018, 6 May 2019, 28 August 2019 and 21 January 2020, the State party was invited to submit its observations on the admissibility and merits. The Committee regrets that no submissions have been received. The Committee must therefore base its decision on the information provided by the author, insofar as it has been sufficiently substantiated.

In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol. Pursuant to rule 72 (4), it must do so before considering the merits of the communication.

In accordance with article 4 (2) (a) of the Optional Protocol, the Committee notes that there is nothing on file to indicate that the same matter has been or is being examined under another procedure of international investigation or settlement.

As regards the exhaustion of domestic remedies under article 4 (1) of the Optional Protocol to the Convention, the Committee notes the author’s contention that she has exhausted all available domestic remedies. Her complaint lodged in 2013 of discrimination on the ground of her sex generated only an acknowledgement of receipt, despite follow-up attempts. She argues that the authorities’ failure to investigate has coincided with the breakdown of the rule of law in Libya. In the light thereof and in the absence of submissions from the State party to the contrary, the Committee considers that it is not precluded by the requirements of article 4 (1) of the Optional Protocol from considering the matter.

The Committee considers that the author has sufficiently substantiated her communication for the purposes of admissibility. It therefore declares the communication admissible, insofar as it raises issues under articles 1–3, 5 (a) and 7 of the Convention, and proceeds with its consideration of the merits.

The Committee has considered the present communication in the light of all the information placed at its disposal by the author, without the benefit of the State party’s observations, in accordance with the provisions of article 7 (1) of the Optional Protocol.

The Committee notes the author’s argument that, in breach of articles 1 and 2 (b), (d) and (e) of the Convention, the State party discriminated against her on the basis of her sex and as a defender of the human rights of women breaking gender norms. She claims to have been threatened because of her activism for women’s rights and to have been arbitrarily arrested and detained on three occasions, without an arrest warrant, charges or any basis in Libyan law, including on 9 August 2012 during a women’s rights workshop. Following this arrest, she was detained by members of the Martyrs of 17 February Brigade and questioned by a man identified as a Ministry of Defence official. Moreover, on 11 and 12 August 2012, she was subjected to gender- based and sexual verbal abuse, kicking, blows with a gun and a death threat, which resulted in her being diagnosed with post-traumatic stress disorder. She states that she saw vehicles of the State party’s Supreme Security Committee on the compound premises and that, immediately after the abuse, which rendered her barely able to move, S., a man identified as a Supreme Security Committee investigator, questioned her about Hakki, which he called a “prostitution organization”, until 4 a.m. Following her release, members of the Brigade and a Supreme Security Committee member brought her back to the compound, where S. again questioned her and said that he had discussed her case with the Deputy Interior Minister. The next day, she was made to meet the latter, who did not enquire about her clearly visible injuries. Rather, he complained to her about the “noise” that she had created in the media, laughed at her demands for women’s rights and told her to sign a letter stating that she would not deal with Jewish organizations or individuals. Despite follow-up attempts, her complaint to the Prosecutor General filed in 2013 has generated no substantive response. In addition to the author’s statement, the Committee takes particular note of the press article according to which the Deputy Interior Minister stated that “a legitimate force affiliated to the Ministry of Internal Affairs arrested” the author and that her organization had “deviated from its course and started chanting for women’s freedom”.

The Committee recalls that discrimination within the meaning of article 1 of the Convention encompasses gender-based violence against women. Such discrimination is not restricted to action by or on behalf of States parties. Rather, under article 2 (e) of the Convention, States parties may also be responsible for private acts, if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. Under the obligation of due diligence, States parties must adopt and implement diverse measures to tackle gender- based violence against women committed by non-State actors, including having laws, institutions and a system in place to address such violence and ensuring that they function effectively in practice and are supported by all State agents and bodies who diligently enforce the laws. The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women in cases in which its authorities are aware or should be aware of the risk of such violence, or the failure to investigate, prosecute and punish perpetrators and provide reparations to victims/survivors of such acts, provides tacit permission or encouragement to perpetrate acts of gender-based violence against women. Such failures or omissions constitute human rights violations. In this regard, the Committee refers to its general recommendation No. 28 (2010) on the core obligations of States parties, in which it states that “States parties must address all aspects of their legal obligations under the Convention to respect, protect and fulfil women’s right to non-discrimination and to the enjoyment of equality” and that “they are further obliged to react actively against discrimination against women, regardless of whether such acts or omissions are perpetrated by the State or by private actors”.12

The Committee also recalls that, in determining when acts of gender-based violence against women amount to torture or cruel, inhuman or degrading treatment, a gender-sensitive approach is required to understand the level of pain and suffering experienced by women, and that the purpose and intent requirements for classifying such acts as torture are satisfied when acts or omissions are gender-specific or perpetrated against a person on the basis of sex. Given the author’s arrest by forces affiliated with the State party’s Ministry of the Interior on 11 and 12 August 2012, the physical and verbal abuse inflicted upon her and the fact that, despite her visible injuries, public officials questioned her immediately thereafter about her women’s rights organization, the Committee considers the abuse as described by the author to have been gender-specific as well as, at a minimum, inflicted with the consent or acquiescence of public officials, and thus to amount to torture, in respect of which the State party failed to discharge its obligations to investigate, prosecute, punish and provide reparations, in violation of the author’s rights under article 2 (b), (d) and (e), read in conjunction with article 1, of the Convention.

The Committee notes the author’s further claim that the State party breached her rights under article 7 (c) of the Convention, in that its authorities made her cease her work for Hakki, by failing to protect her from threats and by attempting to punish her for her activism for women’s rights. The Committee also notes that the author was arrested during a women’s rights workshop and questioned on Hakki immediately after being tortured. In addition, it notes the Deputy Interior Minister’s criticism of Hakki for “chanting for women’s freedom”. The Committee further notes that States parties should encourage the work of human rights organizations and women’s non-governmental organizations. In this connection, the Committee recalls its general recommendation No. 30 (2013) on women in conflict prevention, conflict and post-conflict situations, in which it states that women’s “ability to participate as active members of civil society” is among the “prerequisites for creating a society with lasting democracy, peace and gender equality”. Accordingly, the Committee considers that the facts as submitted reveal a violation by the State party of the author’s rights under article 7 (c), read in conjunction with article 1, of the Convention.

In accordance with article 7 (3) of the Optional Protocol and taking into account all of the foregoing considerations, the Committee finds that the State party has breached the author’s rights under articles 2 (b), (d) and (e) and 7 (c), read in conjunction with article 1, of the Convention and taking into consideration the Committee’s general recommendations No. 19, No. 23 (1997) on women in political and public life, No. 28, No. 30 and No. 35. Having reached that conclusion, the Committee will not examine the author’s remaining claims.

The Committee makes the following recommendations to the State party: (a) Concerning the author of the communication: (i) Carry out a prompt, thorough and independent investigation into the discrimination, arrest, detention and torture suffered by the author, in order to identify those responsible, and take appropriate measures to prosecute them and sanction them; (ii) Provide appropriate reparation, including adequate compensation, to the author, commensurate with the gravity and the ongoing consequences of the violations of her rights; (b) General: (i) Adopt comprehensive anti-discrimination legislation; (ii) Adopt and implement concrete and effective measures in the legislative, executive and judicial branches and at all levels of government in order to prevent and provide protection against gender-based violence against women in the public and private spheres, including through comprehensive legislation on gender-based violence against women; (iii) Design public policies, programmes, institutional frameworks and monitoring mechanisms to ensure that the competent authorities support and apply such legislation effectively and respond with due diligence to gender- based violence against women, including such violence committed by non-State actors; (iv) Take immediate and concrete measures to stop arbitrary detention, mistreatment and all forms of violence, exaction and intimidation against women, including by security forces, armed groups and militias; (v) Put in place concrete, specific and effective legislative and other measures, including a national action plan, to ensure a safe and favourable environment for women’s human rights defenders and female activists and address the current state of impunity, including with respect to non-State actors; (vi) Recognize publicly the specific place and role of women’s human rights defenders and their legitimacy in the public debate; (vii) Ensure that claims concerning violence against women are addressed promptly and thoroughly and that perpetrators, including non-State actors, are investigated, prosecuted and sanctioned, and also ensure the provision of redress for the acts of private individuals or entities, as part of the State party’s due diligence responsibility; (viii) Engage with non-State actors to prevent human rights abuses, in particular all forms of gender-based violence against women, relating to their activities in conflict-affected areas; (ix) Ensure that women who are victims of violence have access to effective civil and criminal remedies and protection, including counselling, health services and financial support; (x) Provide mandatory training for the police, prosecutors, the judiciary and other law enforcement personnel with respect to combating violence against women, including training on gender sensitivity and the handling of complaints of gender-based violence against women in a gender-sensitive manner; (xi) Eliminate institutional practices and individual conduct and behaviour of public officials that constitute gender-based violence against women, or tolerate such violence, and that provide a context for the lack of a response or for a negligent response, including adequate investigation of and sanctions for inefficiency, complicity and negligence by the public authorities responsible for the registration, prevention or investigation of such violations or for providing services to victims/survivors; (xii) Take concrete, specific and effective legislative and other measures to enable, protect and promote women’s participation, on equal terms with men, in women’s rights organizations, non-governmental organizations and associations concerned with the public and political life of the country, including peace negotiation and electoral processes with a view to a sustainable and peaceful national reconstruction, and take effective measures to ensure that women are not intimidated into ceasing their participation in public and political life.

In accordance with article 7 (4) of the Optional Protocol, the State party shall give due consideration to the views of the Committee, together with its recommendations, and submit to the Committee, within six months, a written response, including information on any action taken in the light of those views and recommendations. The State party is requested to have the Committee’s views and recommendations translated into the State party’s language, to publish them and to have them widely disseminated, in order to reach all sectors of society.