A/HRC/19/68 B. Applicable law 97. International human rights law places an obligation on States to ensure that “any person whose rights or freedoms… are violated shall have an effective remedy” and that “any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”.22 98. The rights of the accused to due process and to a fair trial must be guaranteed. Fair trial standards cannot be suspended during emergency situations. 99. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires Libya to investigate all allegations of torture and to prosecute all alleged perpetrators. 100. A duty to prosecute crimes against humanity and war crimes is part of customary international humanitarian law. C. Current situation in Libya 101. Accountability mechanisms in Libya are deficient in a number of respects, many of which are the direct consequence of the legacy of the Qadhafi era. 102. The existing Criminal Code does not adequately define international crimes. It provides for a statutory limitation of 10 years for crimes, after which there can be no prosecution. Although a law that came into effect in 1998 repealed this provision, it has no retroactive effect. The Military Penal Code precludes statutory limitations. 103. In practice, the current situation shows that the law has not been applied consistently or equally. The Commission received information on attacks, including cases of unlawful killing, torture and arbitrary arrest by the thuwar of members of the former Government and those perceived to be among its supporters. The Commission is not aware of any member of the thuwar having been arrested or detained for these crimes 104. While the interim Government is making progress in re-establishing courts, the absence of a functioning court system prevents perpetrators from being held accountable. 105. The Libyan authorities face considerable challenges in dealing with recent and past violations. They are likely to have difficulties in processing the approximately 8,000 detainees currently in custody. 106. In February 2012, criminal proceedings commenced before a military court in Benghazi against 41 Qadhafi loyalists accused of crimes during the conflict. The Commission notes that the case has appropriately been transferred to a civilian court. 107. In December 2011, the National Transitional Council issued a law establishing the National Council for Civil Liberties and Human Rights, and appointed the members thereto. The body has authority to receive complaints on violations of human rights and to file cases in court. 108. The National Transitional Council recently adopted a law on transitional justice, which created a national fact-finding and reconciliation commission charged with 22 International Covenant on Civil and Political Rights, art. 2, subparas. 3 (a) and (b). 19