By Wolfram Lacher
The 17th February Revolution has fundamentally reshaped Libya’s political landscape.
Conflicts over Justice and Reconciliation
Many of the current conflicts and political tensions are associated with questions of justice and the prosecution of crimes. Three aspects stand out: the consequences of the collapse of the judicial system; the power struggle over its rebuilding; and the discussion over how to deal with the criminal legacy of the old regime.
The collapse of the judicial system is of greatest relevance for the current conflicts. Judges and prosecutors have been discredited by their role under Gaddafi and find themselves physically threatened by countless armed groups. In short, the judicial system is paralysed.
Victims of violence and their families are unable to access justice through the courts. Where the supposed or actual perpetrator belongs to a different group than the victim, families, cities and tribes close ranks and often take justice into their own hands.
This dynamic has contributed to escalation in all local conflicts since the fall of the regime. Many are also connected with detentions, mostly conducted by revolutionary brigades or new units dominated by them.
Thousands of individuals accused of crimes as members of Gaddafi’s military and security forces are held in prisons that are mostly only nominally controlled by the government. 109
These prisoners largely belong to cities and tribes that were on the losing side of the revolution.
Only a handful of trials of former senior officials have already started, and made slow progress to date. International human rights organisations and lawyers from the International Criminal Court rightly point out that leaders of the old regime cannot currently expect a fair trial from the Libyan courts. But of much greater consequence for the country’s stability will be the way local conflicts are dealt with. Victors’ justice is a distinct possibility, with, for example perpetrators from Tawergha tried but not those from Misrata.
The case of the assassination of General Abdel Fattah Younes in July 2011 illustrates the problems. His tribe, the Obeidat, quickly began pressuring the political leadership to prosecute the perpetrators.
Younes’s family accused leading NTC members, judges and members of Salafi brigades of involvement in the general’s detention and subsequent murder. 110 A military court in Benghazi began an investigation and in November 2011 the state prosecutor published a list of seventeen suspects, only one of whom was a member of the political leadership. After several failed assassination attempts, one suspect was killed in June 2012.
Meanwhile, the military court decided to broaden the investigation to include former political leaders. By this point only one of the suspects had been detained, while the rest remained at large. 111
Protests erupted in several cities in December 2012 after the military court questioned former NTC president Mustafa Abdeljelil over the incident. Under public pressure – but probably relieved at being rid of the matter – the military court declared itself not competent, leaving the case without a responsible court. 112
The Obeidat swore vengeance and another assassination attempt against one of the suspects followed in January 2013. 113
Progress in prosecuting crimes depends not only on the establishment of a neutral security apparatus, but also on reform of the justice system itself. Rifts have emerged on this issue, too. The Supreme Judicial Council’s draft law on legal reform proposes dismissing all the country’s judges and having a five-member committee examine their records before deciding to reappoint or retire them. 114
It is hardly surprising this proposal has met with stiff opposition from the judiciary – which, in turn, is dismissed by proponents of the reform initiative as machinations of the azlam. 115
Observers argue that conducting the committee’s work in secrecy would represent an open invitation to political influence on judicial appointments. 116
Many suspect that the Mufti, who is strongly backing the proposal, would seek to control the process. 117
Justice Minister Salah al-Marghani is seeking to ward off such political interference, and the draft law has made little progress towards adoption.
With prosecution of serious crimes largely stalled, the government has resorted to apparent alternatives to work through the legacy of the Gaddafi regime and the civil war. Under the law on transitional justice of February 2012, the NTC in May 2012 appointed a Commission for Truth and National Reconciliation.
But the law made no specific provisions for criminal prosecutions, as the relevant sections on establishing courts had been deleted during the drafting process. 118
Apart from establishing local branches, the Commission has remained inactive. Instead, tribal leaders have taken the initiative to make progress on mediation and reconciliation. But in the absence of security forces and a judicial system to enforce them, agreements reached by tribal leaders have often quickly broken down. Justice Minister Marghani put forward a revised transitional justice law in December 2012, but protracted discussions in the GNC stalled progress.
Chief among the disagreements was the question whether the law should cover crimes committed by the regime until its demise – as the revolutionary camp in the GNC was demanding – or those perpetrated by all sides until the end of the transitional period. 119
Other ways of coming to terms with the past have included attempts to bar Gaddafi-era functionaries from politics, administration and the public sector. To this end, the NTC defined a series of criteria that
public officials must fulfil, and in January 2012 established the so-called Integrity Commission. 120
It did so in response to heavy public pressure over the presence of former Gaddafi-era officials in the NTC and the return of former senior bureaucrats. But the Integrity Commission’s decisions also provoked heated controversy, especially as it did not reveal its reasons for rejecting particular individuals. Some of those concerned simply ignored the decision for months, while other rulings were overturned by appeal courts. 121
For the revolutionary camp, on the other hand, the activities of the Integrity Commission did not go far enough, leading to the aforementioned moves to pass a “law on political exclusion” (al-’Azl al-Siyasi). With the implementation of the latter law, adopted on 5 May 2013, the Integrity Commission will be replaced by – and its members appointed to head – a new body that is set to oversee the law’s enforcement. Under the law, a wider range of former officials are to be disbarred from public office and political life than under the
criteria used by the Integrity Commission – in particular, the new law does not make exceptions for former officials who joined the revolution. This is likely to trigger a spate of decisions against GNC members and other senior officials, and provoke further controversies.
In view of the lack of progress in the legal system and the protracted discussions over “political exclusion”, radical forces began taking matters into their own hands. Especially in Benghazi and Darna, dozens of former members of the domestic intelligence service and Gaddafi’s revolutionary committees fell victim to a spate of murders. 122
In some cases these were probably acts of personal revenge for repression at the hands of the regime experienced by Islamists and other members of the opposition in the 1980s and 1990s. In other cases they are likely to represent unilateral political purges. The revolutionary camp – especially its Islamist wing – sees the inadequacy of action against former regime elements as the prime cause of such killings, arguing that the mere presence of former regime officials exacerbates tensions. 123
A wave of kidnappings in Tripoli, Misrata and other cities since late 2012 also points to the beginning of a cycle of revenge. 124 While some abductions are motivated by criminal gain, others appear to be directly related to the search for azlam or retribution for crimes. 125
As long as this climate prevails and a neutral judicial process remains impossible, initiatives for national reconciliation have little prospect of success.
To be continued
Wolfram Lacher is an Associate in SWP’s Middle East and Africa Division
109- According to the International Crisis Group, seven thousand individuals accused of links to the former regime are still being held, among them three thousand in facilities that are officially under (often only nominal) state control. ICG, Trial by Error: Justice in Post-Qadhafi Libya (Brussels, 2013).
110- “Murder of General Younes: A Conspiracy Within the State”, correspondents.org (in Arabic), 25 September 2012, www.correspondents.org/ar/node/833.
111- “State Prosecutor Reveals Names of Suspects in Case of Assassination of Abdel Fattah Younes and Aides”, Brnieq, 28 November 2011, tinyurl.com/a9yrkhv; “Investigation of Role of Top Transitional Council Leaders in Abdel Fattah Younes Murder”, al-Watan al-Libiya, 31 May 2012, tinyurl.com/ao4mowv; “Benghazi Official Linked to Younis Killing Assassinated”, Libya Herald, 21 June 2012.
112- “Abdel Fattah Younes Case: Libya Tribunal Quits in Jalil Row”, BBC News, 20 December 2012.
113- “Abdel Fattah Younes’ Family: Criminal Prosecution – or Revenge”, Quryna, 5 December 2012, www.qurynanew.com/45785; “Man Killed in Car Bomb Murder Attempt against Benghazi Islamist”, Libya Herald, 7 January 2013.
114- The NTC appointed a new Supreme Judicial Council after the fall of the regime. Its chair is the president of the Supreme Court; other members are the state prosecutor-general and the presidents of the appeals courts. Draft Law on Reorganisation of the Judiciary, www.aladel.gov.ly/main/uploads/sections/352_new-law.pdf.
115- “Judges and Court Councillors from Benghazi Attempt to Prevent Law on Reorganisation of the Libyan Judiciary”, al-Manara, 17 October 2012, tinyurl.com/acv66pp; “Judges and Court Councillors at Supreme Court and Appeals Courts Reject High Judicial Council’s Draft Law on Reorganisation of the Judiciary”, al-Watan al-Libiya, 18 November 2012,tinyurl.com/auarbz9.
116- Discussion with law professor Alhadi Bouhamra, Tripoli, November 2012.
117- “Ghariani Warns of Shia Expansion in Libya and Discusses a Number of Issues with GNC Members”, al-Tadhamon, 28 April 2013, tinyurl.com/cmu3h56.
118- Discussion with Salah Marghani, who worked on the draft law and later became Justice Minister, Tripoli, June 2012; Law 17/2012 of the National Transitional Council “On Defining Principles of National Reconciliation and Transitional Justice”, Tripoli, 26 February 2012.
119- Discussions with GNC members, Tripoli, April 2013.
120- The full name is “Supreme Authority for the Implementation of the Criteria of Integrity and Patriotism” (al-Hai’a al-Ulya li-Tatbiq Ma’air al-Nazaha wal-Wataniya); the Commission became operational in April 2012. See the corresponding Law 26/2012 of the National Transitional Council, Tripoli, 4 April 2012; “National Transitional Council Defines Integrity Criteria for Appointments to State Offices”, al-Manara, 17 December 2011, tinyurl.com/a5wxbpx.
121- “Declaration of Authority for Implementation of Criteria of Integrity and Patriotism: Some Decisions Being Ignored”, al-Manara, 1 June 2012, tinyurl.com/ahmoj6p.
122- The incidents are too numerous to list in detail. Some examples: “Benghazi Car Bomb Kills Former Adjutant in Domestic Intelligence Service”, Quryna, 13 June 2012, www.qurynanew.com/36536; “Top Intelligence Officer Killed, Second Injured in Benghazi Car Bomb Blast”, Quryna, 3 September 2012, www.qurynanew.com/41006; “Shots Fired at Former Member of Domestic Intelligence Service in Darna”, al-Tadhamon, 5 September 2012; “Leader of Darna Revolutionary Committees Murdered”, al-Tadhamon, 31 October 2012, tinyurl.com/asx9sog; “Retired Major Abdelkarim al-Warfalli Killed”, al-Tadhamon, 6 November 2012, tinyurl.com/apldxxe; “Benghazi: New Attack Targets Citizens Said to Have Connections to Gaddafi’s Domestic Intelligence Service ”, al-Manara, 8 November 2012, tinyurl.com/anyb4oa; “Leader of Darna Revolutionary Committees Killed”, al-Tadhamon, 19 December 2012, tinyurl.com/bqjf2tt; “Colonel at Security Directorate in Benghazi Killed”, al-Tadhamon, 8 April 2013, tinyurl.com/c4oxaev.
123- As one former member of an Islamist brigade in Benghazi put it: “The members of the former security organs should disappear. They are murderers, their presence is destabilising. We need the ‘political exclusion’, then the killings will stop.” Discussion, November 2012. The Justice and Construction Party expressed a similar view: “Justice and Construction: Participation of Members of Former Regime in Political Process Disrupts National Consensus”, al-Manara, 12 December 2012, tinyurl.com/c5c4msa.
124- ICG, Trial by Error (see note 109), 23.
125- A senior figure in the SSC Tripoli explained the kidnappings as directly related to the release of former members of Gaddafi’s army: “In the months after the fall of Tripoli, we arrested many members of Gaddafi’s brigades and intelligence service. When we handed them over to the General Prosecutor, they were immediately released without their files even being looked at, because the way in which they had been arrested was considered illegal. This created deep resentment towards the justice system. We tried to arrest them formally again, but were told by the interior ministry that only the police could do that. But of course, the police won’t, because they are afraid. This has led to the wave of kidnappings.” Discussion, Tripoli, April 2013.