By Mieczysław P. Boduszyński & Marieke Wierda
The Libyan revolution of 2011 initially generated much hope.
When Qaddafi, who ruled the country ruthlessly and erratically for forty-two years, was toppled by a broad coalition of rebels backed by NATO, Libyans had a rare opportunity to rebuild their state in accordance with the appeals to justice (‘adala), freedom (hurriyya), and dignity (karaama), which had animated the revolution.
The chaos that characterized Libya at the end of 2016 stands in stark contrast to the optimism that accompanied its transition early on. In many ways, post-Qaddafi Libya appeared to be a country ripe for transitional justice.
Unlike the revolutions in Tunisia and Egypt, where there was some kind of accommodation with remnants of the former regime, Libya’s revolution was much more far-reaching, and thus the prospects for real accountability seemed greater since Libya’s new rulers did not have to enter into any compromising “pacts” with former rulers.
The previous regime and its affiliated structures fully collapsed.
Many former regime figures were taken into custody. Moreover, the coalition that came together to fight Qaddafi was unusually broad and unified, compared, for example, to Syria’s factitious opposition.
Such unity, as well as Libya’s rich traditions of mediation and reconciliation between tribes, could arguably have provided the basis for genuine transitional justice and post-conflict reconciliation.
Instead, the country has succumbed to ever increasing levels of violence.
The justice that exists is most often meted out in the form of extra-judicial violence and revenge against those deemed by revolutionary brigades to be collaborators of the former regime.
In this chapter, we focus on a highly exclusionary vetting measure passed by the transitional Libyan parliament in 2013.
Ironically, those subjected to this measure have not been Qaddafi henchmen, but revolutionary stalwarts.
Less than two years after the fall of Qaddafi, many of the revolution’s main protagonists found themselves excluded from political life owing to a draconian measure called the Political Isolation Law (PIL).
The PIL excluded a number of the most prominent leaders of the uprising, among them Mahmud Jibril, Mustafa Abdel-Jalil, and Mohamed Magarief, all of whom once held senior positions in Qaddafi’s regime but became key leaders in the National Transitional Council (NTC).
Indeed, the paradox of transitional justice in Libya is that while revolutionary leaders and others have been excluded from public life, little else in terms of transitional justice has been delivered, either in the form of verdicts against senior former regime figures in custody or reparations measures for victims.
Why has the struggle for a broad and inclusive justice failed in Libya, replaced instead by a harsh form of political exclusion?
This chapter situates the PIL in a broader political—and now violent—struggle for legitimacy and power in the new Libya.
The Libyan case provides a cautionary tale in terms of the dangers of pursuing transitional justice in the form of retributive purges without parallel measures that could heal divisions and promote reconciliation, such as truth telling or reparations for victims.
We proceed as follows. The first section places the Libyan PIL in context by defining and analyzing the trade-offs inherent in vetting, lustration, exclusion, and purging mechanisms as forms of transitional justice, with comparative examples from other transitional and post-conflict states.
This section also reviews some of the theories that have been put forward to explain the political determinants of various transitional justice mechanisms.
Finally, it outlines the provisions of the Libyan PIL. The third section outlines the legacies of the past that Libyans face in their pursuit of justice, showing how institutional collapse and weak statehood have created a climate of impunity and intense competition for resources and power among Libya’s ubiquitous extra-state militias, and describes existing efforts to deal with these legacies through nascent transitional justice mechanisms.
The fourth section argues that a climate of victor’s justice and revolutionary legitimacy has prevailed in Libya, further complicating the delivery of justice by the extremely weak state.
It shows, moreover, how the PIL rose to prominence in the context of intense post-Qaddafi battles between different political camps and notions of legitimacy and has contributed to the chaos that engulfs Libya three years after Qaddafi’s demise.
The conclusions consider the consequences of the law to date, and argue that the zero-sum politics of exclusion reflected in PIL hinder any kind of settlement, reconciliation, and lasting peace in post-Qaddafi Libya.
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Source: Transitional Justice in the Middle East and North Africa | Summary Report
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Mieczysław P. Boduszyński is Assistant Professor of Politics and International Relations at Pomona College in California. His publications include articles on Libya in the Georgetown Journal of International Affairs and Journal of Democracy. He has published a number of articles on Balkan politics and international justice, and authored the book Regime Change in the Yugoslav Successor States: Divergent Paths toward a New Europe ( Johns Hopkins University Press, 2010). He earned his MA and PhD from the University of California, Berkeley. Before teaching at Pomona, he worked as a US diplomat for nine years, most recently serving as a Public Affairs Officer in Libya. He also served in a variety of positions at US Embassies in Albania, Kosovo, Japan, and Egypt.
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Marieke Wierda is a PhD candidate at the Grotius Center for International Legal Studies at Leiden University, on leave from her post as the Transitional Justice Advisor to the UN Support Mission in Libya. She previously worked for ten years with the International Center for Transitional Justice, where she worked extensively with transitional justice in Sierra Leone, Uganda, Lebanon, and Afghanistan. She is the author of many book chapters and articles on international criminal law and transitional justice, including a book on International Criminal Evidence, co-authored with Judge Richard May (Martinus Nijhoff, 2013). Wierda earned her LLB from University of Edinburgh, and her LLM from New York University.
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