By Noha Aboueldahab
Neither peace nor justice has emerged in Libya in the decade following the anti-Gaddafi uprising. However, justice is a broad policy area that is integral to elections, constitution-building, stability, security, and resource distribution.
Despite this, justice considerations have been largely absent from peace-building attempts in Libya.
Neither Peace nor Justice
Fathi Terbil was a prominent lawyer who represented the families of the victims of the 1996 Abu Salim prison massacre, one of the darkest moments in Libya’s recent political history, during which over one thousand prisoners were executed.
Terbil’s arrest on the 15 of February 2011 sparked protests in Libya’s eastern town of Benghazi, which then grew into a full-fledged massive uprising two days later.
The anger triggered by Terbil’s arrest illustrates how the public outcry provoked by the grave injustice of the massacre is closely connected with demands of justice for those tortured and killed by the regime and its agencies.
Mass demonstrations calling for an end to the forty-two-year rule of Gaddafi and his regime continued, which was followed by a military intervention led by the North Atlantic Treaty Organisation (NATO) and backed by the UNSC.
This intervention ended on the 31 October 2011, eleven days after Muammar Gaddafi was captured and killed by Libyan rebels.
Despite the arrest warrants issued by the ICC for Saif al-Gaddafi and El Senussi on the 27 of June 2011, the Libyan authorities insisted on trying them domestically, arguing that its judiciary was capable of trying Libyan nationals for grave human rights violations.
The ICC accepted an admissibility challenge for El Senussi, filed by Libya in April 2013:
On 11 October 2013, Pre-Trial Chamber I decided that the case against Mr. Al-Senussi was inadmissible before the Court as it was subject to on-going domestic proceedings conducted by the competent Libyan authorities and that Libya was willing and able genuinely to carry out such investigation.
The ICC, however, rejected Libya’s admissibility challenge for Gaddafi, citing concerns about Libya’s ability to conduct a fair trial.
Thirty-five other defendants were tried domestically in Libya on charges including war crimes, the killing of protesters, and corruption. Given that he was held by Zintani militias, Saif al-Gaddafi was tried in absentia by a court in Tripoli.
Other defendants included former Prime Minister Baghdadi Al-Mahmoudi, former Foreign Minister Abdul Ati Al-Obeidi, and former intelligence chief Bouzid Dorda, who was recently released on medical grounds.
The trial of the thirty-seven former Gaddafi regime members started in April 2014 in Tripoli and verdicts were issued in July 2015. Saif al-Gaddafi, El Senussi, former Prime Minister al-Mahmoudi and six other defendants were sentenced to death by firing squad for committing war crimes during the 2011 conflict.
Seven others were given a twelve-year jail sentence each and four defendants were acquitted. According to a BBC report, the “defendants were accused of incitement to violence and murdering protesters during the revolution that eventually toppled Gaddafi.’
Following reports of his release in 2017, the current whereabouts of Saif Al-Gaddafi remain publicly unknown.
Meanwhile, Libya remains in the throes of violent conflict in several regions and towns. Criminal accountability, especially when heavily politicized as in Libya, is never sufficient on its own to bolster a sustainable transitional phase.
Even as one component of many in a process involving peace negotiations and conflict resolution, criminal accountability is not always beneficial to victims in the immediate term.
As demonstrated by the flawed domestic prosecutions of Gaddafi regime members, the advent of criminal accountability in a highly politicized context with weak judicial institutions will leave victims without any meaningful redress.
Some argue that the objective of international actors in making a referral to the ICC was to marginalise the ousted Gaddafi regime and to demarcate its end through branding him and his aides as war criminals via ICC arrest warrants.
However, state interests are not static and consequently justice agendas evolve.
This became particularly clear in the case of Libya, where the same actors who pushed for ICC intervention – namely, the members of the Security Council – later abandoned such support.
Peskin and Boduszynski provide an overview of the ‘waxing and waning’ of international support for ICC intervention in Libya and indeed in other countries.
They highlight the fluid relation between statecraft, diplomacy and criminal accountability:
In Libya […] the instrumental mindset that drove the UNSC referral, […] in time, led it to virtually abandon the ICC, thereby weakening the Court and, arguably, the norm of global criminal justice as well…
In any conflict or postconflict scenario, criminal accountability is just one of several competing policy goals for external actors.
The international community’s claim that its support of global justice is nonnegotiable should not blind us to this essential reality of statecraft.
At times, the interests of potential surrogate enforcers may converge with the needs of international tribunals. But convergence can soon turn into divergence and, at times, back again to convergence, depending on the course of events.
The end of Gaddafi’s rule thus bore sufficient reason for international actors to relax their push for criminal accountability at the ICC.
Peskin and Boduszynski explain this waning of international support in Libya as a result of the fulfillment of ‘regime change’ ambitions, as opposed to justice and criminal accountability:
‘…the politics driving the [ICC] referral foreshadowed a tension between the goal of getting Qadhafi to The Hague on the one hand and achieving an expeditious end to the violence by hastening Gaddafi’s departure from power on the other.’
In Yemen, domestic and international politics played a similar role in driving away any meaningful process of justice.
After the immunity law protecting former Yemeni president Saleh from prosecution was passed, protests specifically calling for a reversal of the law – began to re-emerge in Yemen in September 2012.
In response, Yemen’s government ordered an investigation into human rights violations that occurred during the uprising and set up an investigative committee to that effect.
In September 2012, President Hadi – formerly Saleh’s vice president for 16 years – signed a decree authorising the creation of a commission of inquiry to investigate human rights violations during the 2011 uprising and to recommend accountability measures, including prosecutions.
The Hadi government ordered the investigation of seventy police officers suspected of culpability in the Friday of Dignity killings during the uprising.
A trial commenced on the 29 of September 2012 in the First Instance Court for the Western Capital District in Sanaa.
The trial was ridden with flaws, as Human Rights Watch observed: ‘The state prosecution’s investigation into the Friday of Dignity massacre was marred by political interference, a failure to follow leads that might have implicated government officials, and factual errors.’
Throughout the National Dialogue Conference (NDC) talks in Yemen, working groups debated the drafting of a transitional justice law.
The NDC was a ten-month long transitional dialogue process, during which various working groups aimed to achieve consensus on several pressing national issues, such as the issue of southern secession, the Houthi rebellion in the north, and governance in post-transition Yemen.
Regarding the transitional justice law, one of the key questions was whether addressing the past would date back to the beginning of Saleh’s rule in 1978 or to the 2011 uprising.
However, civil war broke out following the Houthi takeover of the capital Sanaa in September 2014 and a Saudi-led coalition of Arab states militarily intervened in March 2015, effectively halting the already limited transitional justice process that was in place.
More than four years later, tens of thousands of innocent Yemenis have been killed and those still living are suffering the world’s worst humanitarian crisis since World War II.
Despite repeated attempts, neither peace nor justice has come to fruition.
The complexities of Libyan and Yemeni transitional politics are an important backdrop for understanding the challenges of the pursuit of peace and justice.
Polarisation stemming from tribal tensions and conflicts are a significant complicating factor for reaching consensus on justice decisions, especially at the national level.
Disagreements and clashes between Qaddafi regime loyalists, anti-Qaddafi revolutionaries, and between tribes and militias have further diminished such prospects.
Torture in clandestine prisons, corruption, arbitrary detention, forced displacement, property theft and destruction, and a proliferation of militias and other armed groups prevail in Libya.
An overarching challenge is the dire state of insecurity and power vacuums that have allowed militias and other armed groups to take control.
Consequently, the distribution of resources has been hijacked further, leading to more grievances and social injustices on a scale that will take years to reverse.
Moreover, shifting alliances in the fallout of the Arab uprisings of 2011 mean that regional and international actors have played a significant role in Libya’s internal politics.
This, as the NCP consultations denote, has complicated prospects for peace and justice.
Wrangling for diplomatic leadership in efforts to mediate the conflict in Libya has seen Italy, France, Egypt and the UAE host a string of peace talks.
Each of these actors has divergent interests and lends its financial, military and political support to different Libyan political actors.
Unsurprisingly, this has not only worsened the already fragmented political landscape in Libya, but it has also complicated prospects for peace, justice, and certainly the pursuit of both in tandem.
A war has raged since 2014 between those loyal and those opposed to General Khalifa Haftar, the head of the Libyan National Army who has led military campaigns against Islamists in eastern Libya, often citing the ‘fight against terrorism’ rhetoric as justification for his military campaigns.
Domestically, Libya saw the formation of two opposing governments: one backing Haftar’s Operation Dignity military campaign, and the other supporting the UN-backed Government of National Accord (GNA), based in the capital Tripoli.
Internationally, the UAE, Egypt, Russia and France have extended military and financial support to Haftar, while the GNA is backed by the UNSC and other international actors including Qatar and Turkey.
Further divisions exist between militias, tribes and cities, resulting in serious consequences, such as the forced displacement of Tawerghans and Benghazi residents.
Libya’s political landscape, then, is fragmented at the domestic, international, and diplomatic levels. The starkly opposing justice strategies in Libya and Yemen weaken the international community’s claim to a global accountability norm.
They also have significant implications for how questions of justice, reconciliation, and peace will unfold domestically. These can already be identified in the final report of the consultations for Libya’s NCP.
Noha Aboueldahab – Fellow at the Foreign Policy program at the Brookings Institution and the Brookings Doha Center, and vice chair of the Transitional Justice and Rule of Law Interest Group at the American Society of International Law.