A/HRC/17/44
60.
The Libyan Arab Jamahiriya has not notified the Secretary-General of any state of
emergency and subsequent derogations made to its obligations under the International
Covenant on Civil and Political Rights. Article 4 of the Covenant permits State parties to
derogate from obligations “in time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed”. Derogations are only
permissible to the extent strictly required by the exigencies of the situation, and the measure
must not be inconsistent with their other obligations under international law or involve
discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Article 4 also clearly stipulates the provisions which are non-derogable, which include but
are not limited to the right to life, the prohibition of torture or cruel, inhuman or degrading
punishment, and freedom of thought, conscience and religion.48
61.
International human rights law applies both in peace and times of armed conflict. As
the International Court of Justice has concluded, “the protection offered by human rights
conventions does not cease in case of armed conflict”.49 Instead, it applies alongside
international humanitarian law which is the lex specialis during times of armed conflict.
Non-State actors and international human rights law
62.
Non-State actors in Libya, in particular the authorities and forces of the National
Transitional Council, cannot formally become parties to the international human rights
treaties and are thus not formally given obligations under the treaties. Although the extent
to which international human rights law binds non-State actors remains contested as a
matter of international law,50 it is increasingly accepted that where non-State groups
exercise de facto control over territory, they must respect fundamental human rights of
persons in that territory.51 The Commission has taken the approach that, as NTC has been
48
49
50
51
20
Human Rights Committee considered that the duty to bring perpetrators to justice attaches in
particular to violations that are criminal under domestic or international law, torture and similar cruel,
inhuman and degrading treatment, summary and arbitrary killing and enforced disappearance. See
also the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, adopted by the General Assembly in December 2005, and the Updated Set of
Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity
(which were recognized in a consensus resolution of the former Commission on Human Rights in
2005).
Note also the further rights which the Human Rights Committee has explained are non-derogable:
including the right of all persons deprived of their liberty to be treated with humanity and with respect
for the inherent dignity of the human person, the prohibition against taking hostages, abductions or
unacknowledged detention, certain elements of the right of minorities to protection, the prohibition of
deportation or forcible transfer of population and the prohibition of propaganda for war and advocacy
of national, racial or religious hatred that would constitute incitement to discrimination, hostility or
violence, as well as procedural rights necessary for the protection of non-derogable rights. These
subsidiary obligations include the right to take proceedings before a court to enable the court to
decide on the lawfulness of the detention and remedies such as habeas corpus. Human Right
Committee, general comment No. 29 (2001) on states of emergency (art. 4), paras. 13 and 15.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 178, paras. 105–106. See also statements concerning international
humanitarian law as lex specialis in Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, p. 240, para. 25.
For a more expansive view of the application of international human rights law, see Andrew
Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006).
To similar effect, see Secretary-General, Report of the Secretary-General’s Panel of Experts on
Accountability in Sri Lanka, 31 March 2011, para. 188. Available from:
http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.
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