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.
Reconciliation and Libya’s National Conference Process
Given the ongoing conflict and political fragmentation, justice cannot – and should not – be ‘swift,’ nor should it be strictly construed as criminal or prosecutorial justice.
By limiting the understanding of what constitutes ‘justice’ in this way, transitional justice as a whole will unnecessarily be shelved until more ideal political and social conditions begin to take shape – conditions that will likely take many years to develop.
That said, the NCP presents a critical opportunity to ensure the complex justice needs of Libyan society are addressed as the country struggles to shift towards peace and state building.
Yet the NCP report falls far short of clarifying what those justice expectations are. This is fairly disappointing, given the consultative process that informed the final report published in November 2018.
This process involved 77 preparatory meetings in 43 locations inside and outside Libya, with an estimated participation of 7,000 Libyans.
While the report claims that Libyans “from all parts of society” took part, only a quarter of them were women. Still, social media campaigns and local media outreach reportedly drew the attention of approximately 1.8 million Libyans.
Questions regarding the extent and participatory nature of the consultations aside, the report notably designates ‘reconciliation’ as one of the key entry points or principles to be addressed once the National Conference is underway. However, it is unclear what is meant by national reconciliation and the time period that such reconciliation would address is also vague.
In addition, there are multiple assertions throughout the document that emphasize rejection of foreign interference, or any role for international actors “even as observers” in elections.
The following statement is noteworthy:
“National reconciliation must be achieved, based on traditional Libyan practices and values and with respect for the demands of justice. The reconciliation process must be free from foreign interference.”
At the same time, the report states that participants would like the UN and the international community to be a partner in facilitating and overseeing the reconciliation process:
“Libyan authorities and the international community can help ensure that the conditions for the success of such national reconciliation processes are met.”
The glaring contradiction in the above two statements regarding international involvement and foreign interference underscores the need for determining how Libyans would want to draw the line between foreign ‘intervention’ and foreign ‘support’ for national reconciliation in Libya.
This is not a trivial detail; rather, it is an important question especially in light of the number of times the final NCP report cautions against foreign interference.
Moreover, “traditional Libyan practices and values,” “demands of justice,” and “national reconciliation processes” are hefty terms that, without any explanation of what is meant by them, will be open to interpretation by the various actors vying for control in Libya.
The use of these terms without unpacking them assumes that there is unity in how they are perceived or understood across Libya. As demonstrated by the justice processes that unfolded in the immediate aftermath of the 2011 uprising, this is certainly not the case.
References to how to address Libya’s past – and which part of Libya’s past – are also ambiguous. The NCP report finds that Libyans believe reconciliation efforts “are most likely to be successful if those responsible for the process reflect on the legacy of Libya’s ancestors, customs, traditions, and if the efforts of Libya’s old and young are combined.”
It is unclear what, exactly, such a process of reflection would entail, nor is it clear what is meant by combining the efforts of Libya’s ‘old’ and ‘young.’ The report mentions the importance of “magnanimity and forgiving past offences,” and notes that, “Libya has a history of reconciliation, amnesties and forgiveness.”
However, it is explicit in singling out crimes against humanity as an exception, one that requires “justice” and not “impunity.” The report does not explain the timeframe for which such ‘justice’ would apply and instead makes vague references to the need for reconciliation for “wounds inflicted on Libyans…over the past 8 years and earlier.”
Despite these shortcomings, the report identifies key actions highlighted by those consulted as necessary for reconciliation.
First, it calls for a general pardon “for the period of the conflict” (it is assumed that the conflict here refers to developments since the 2011 uprising).
Other actions include releasing all political prisoners, ensuring the safe return of those displaced, and unifying the military and security institutions while disarming “outlaw militias.”
Still, without an overarching vision or objective for approaching reconciliation, justice and peace in Libya’s critical transitional phase, efforts to bring about a long-lasting peace will fail.
Resource distribution is a crucial issue in Libya, as confirmed by the findings of the NCP consultations.
Such questions of social justice, however, should be part and parcel of an integrated justice approach that is incorporated into all five policy areas identified in the report:
(a) national and government priorities,
(b) security and defence,
(c) distribution of powers and resources,
(d) constitutional and electoral processes, and
(e) national reconciliation.
As Juan E. Mendez and Jeremy Kelley note, “successful peace mediation will include both judicial and non-judicial elements.”
The NCP implicitly supports this approach, but its provisions will need to be made explicit throughout the remainder of the National Conference process.
Finally, the report highlights “the frankness” of the consultation discussions and the importance participants placed on a “psychological process” and not just material compensation for families of victims.
It is unclear, however, how participants would like to see those issues addressed. Should they establish a truth commission?
What time period of atrocities and grievances should be addressed?
What immediate avenues of redress will be established for victims?
Moving Forward: An Integrated Approach to Peace and Justice in Libya
These are not easy questions, especially given the deep divisions and the lack of a central authority to bring the dire state of insecurity under control.
The report, unsurprisingly, prioritizes security for the National Conference.
Justice in all its forms – including amnesties, forgiveness, prosecutions, reconciliation, reparations, truth commissions –cannot be relegated to a separate category or policy area as Libyans begin to rebuild their state, address security challenges and socio-economic inequality, and restore their social fabric.
An in-depth examination of how justice can be best integrated into all five policy areas of the NCP would enhance the prospects of achieving a more sustainable peace and a justice framework adapted to the Libyan context.
Despite the contradictions regarding the need for international support and the repeated rejection of ‘foreign interference’ in the NCP, it is somewhat promising that the consultations reveal the significance Libyans place on shaping their national reconciliation process to suit their needs.
Unfortunately, the fragmentation at the domestic and international levels, whereby the political elites have been vying for political and diplomatic control without much of a thought for Libya’s victims of the Gaddafi and post-Gaddafi periods means that justice will continue to emerge only when it serves the interests of these multiple states and actors.
The current turmoil in Yemen should serve as a cautionary tale. The marginalization of ‘justice’ in all its forms and especially in the name of ‘peace’ has not yielded positive results.
Part of the problem is the stigma, or the controversy, that the term ‘justice’ evokes, especially among the political elites who fear they will be held accountable for whatever past crimes they may have been involved in.
The challenge lies in expanding the meanings of justice to include non-judicial elements such as reconciliation and social justice, and strengthening recognition of justice as a broad policy area integral to elections, constitution-building, stabilization, security, and distribution of resources.
Less emphasis on retributive prosecutions and greater emphasis on restoring security, sustaining inclusive dialogue, and establishing the truth thus serve as a more appealing first step to a certain level of reconciliation in Libya.
But if the serious undertaking of the National Conference is to have better measures for success, it is first necessary to make explicit what Libyans expect from ‘reconciliation,’ ‘justice,’ and ‘peace.’
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.