An obligation to account
Britain should act under international law if Libya will not resolve Jaballa Matar’s disappearance
guardian.co.uk, Sunday 17 January 2010 20.00 GMT
In Saturday’s Guardian the novelist Hisham Matar wrote of his anguish over the continuing disappearance of his father, the Libyan political dissident Jaballa Matar, who was taken from his home in Cairo in March 1990 and imprisoned in Libya. The Libyan government has never acknowledged his imprisonment. The only news his family has received directly from him has been via two letters smuggled out of prison – one written in 1992, one in 1995.
Recently the family received word that he was seen in a prison in Tripoli in 2002. Human Rights Watch has recently raised his case. A group of nearly 300 writers, including JM Coetzee, Salman Rushdie, Ian McEwan, Zadie Smith and Orhan Pamuk, wrote to David Miliband last week urging the government to seek information about the whereabouts of Matar and others. The foreign secretary responded swiftly, acknowledging concern about the human rights situation in Libya, and stating that Hisham Matar “has my full support in his quest, on behalf of his family, to find out what happened to his father”. It seems, however, that the Foreign Office has not raised this issue with the Libyans.
This is not only a story of a family’s quest, in which the UK government can play merely a supportive role. In 1988, in the landmark Velásquez Rodríguez case, the inter-American court of human rights ruled that “the forced disappearance of human beings is a multiple and continuous violation of many rights”. It is now accepted in international law that disappearing a person is an act of torture, not least for those who are left behind.
The act of disappearing a person is a continuing crime: it persists until the whereabouts of the disappeared has been fully accounted for. The Velásquez Rodríguez judgment concluded that prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment. The case supports the principle that forcible disappearance gives rise to torture. The judgment confirmed the legal obligation of a state to prevent such violations and, where it is too late for prevention, to launch an “effective search” for the truth.
Matar’s initial disappearance violated international law; his continuing imprisonment without communication with the outside world violates international law; his disappearance over nearly two decades violates international law; the failure by the Libyan government to effectively investigate his case violates international law. These violations expose individuals within the Libyan government to the risk of criminal action. What this means is that Hisham Matar’s rights are being violated. As a UK national he is entitled to expect the British government to intervene directly with Libya to bring the torture to an end.
This is not mere theoretical possibility. In 1998 the Lords ruled in the Pinochet case that the former Chilean leader was not entitled to claim immunity for torture allegations occurring after October 1988, when the 1984 torture convention became binding on Britain, Chile and Spain (the country that sought his extradition). An English magistrate accepted the proposition that the continuing disappearance of about 1,300 people whose whereabouts had not been established by October 1988 meant that for every one of those individuals an allegation of torture could be made. In May 1989 Libya became a party to the torture convention. The risk of individual criminal liability under the 1984 convention, the right of Britain and other countries to assert jurisdiction, and the absence of the right to claim immunity are all confirmed by the convention.
The new “Libyan model” is heralded as an example of what can be achieved by diplomacy rather than war to bring a pariah nation back into the fold. But, last month’s Human Rights Watch report makes clear that “this transformation in Libya’s foreign policy has not galvanised an equivalent transformation of Libya’s human rights record”. Disappearances and other continuing crimes have to be cleared up, properly addressed. That is the consequence of the new world of human rights, that Britain helped to put in place after the second world war. The obligation to account, the need to avoid impunity, means that others also have a role to play. Not only the British government, which has played a significant role in Libya’s rehabilitation, but also the many UK-based companies – such as BP, Shell and Ernst & Young – that have new and expanding investments in Libya. The British government and each of these companies has an interest – and, some would say, a duty – to assist Libya in bringing an end to outstanding injustices and continuing crimes.
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