By Mahmoud Hamad
This paper focuses on transitional justice in Libya since the fall of Colonel Gaddafi. It finds that unlike many countries that suffer from a paucity of transitional justice legislation, numerous relevant constitutional declarations, laws and decrees have been promulgated in Libya.
The process has also faced serious issues, most notably the absence of legislative planning and strategy, the lack of effective dialogue between the parties involved in the legislative process, and the low quality of drafting.
The paper concludes that comprehensive transitional justice in Libya depends on achieving consensus among the regional and international actors involved in Libyan affairs as well as securing four main requirements. These are identified as: a stable constitutional system that prioritizes transitional justice; the unification of state institutions; comprehensive countrywide reconciliation; and a national consensus on the most appropriate transitional justice program.
Since 1969 both individual Libyans and several groups thereof have suffered numerous and protracted violations of their political, social and economic rights. The rapid collapse of the regime after the Revolution coupled with social and cultural fragmentation have resulted in a range of social injustices. The exceptional situation in which Gaddafi has complicated efforts to establish a system of transitional justice.
The problems did not end with the fall of the regime: over the course of the civil war many new violations have taken place, most of which constitute war crimes or crimes against humanity. Moreover, the presence of militias and other armed groups has proven a significant obstacle to disarmament, justice and accountability.
All this has been further exacerbated by the failure of successive post-revolutionary governments to bring the security situation under control and the involvement of some government bodies themselves in violations, including ongoing illegal arrests and detentions, torture, and extrajudicial killings. Libya is not unique in this. Since the 1990s the world has witnessed various political transitions preceded and accompanied by a heavy legacy “ranging from rape and domestic violence to collective atrocities of state-sponsored dirty wars and ethnic cleansing.”
Ruti Teitel correctly notes that in times of political mobilisation to oust dictatorships, “one burning question recurs. How should societies deal with their evil pasts? This question leads to others that explore the question of the relation of the treatment of the state’s past to its future.
How is the social understanding behind a new regime committed to the rule of law created? Which legal acts have transformative significance? What, if any, is the relation between a state’s response to its repressive past and its prospects for creating a liberal order?
What is law’s potential for ushering in liber the Libyan state. The Libyan experience will also be of exceptional value for transitional justice programs in other regional post-conflict countries like Yemen and Syria. Studying transitional justice in Libya draws attention to the following questions: Is passing laws the best way of achieving transitional justice? Is transitional justice legislation alone sufficient to guarantee an end to killing, conflict, displacement and arbitrary detention? What are the different models of transitional justice implemented in Libya? Why has transitional justice legislation failed to achieve positive results within the last seven years? Is this failure attributable to shortcomings in the legislation itself, to the absence of the necessary conditions for transitional justice, or to both?
We conclude by reviewing the possibilities of implementing a comprehensive transitional justice plan in the short and medium term.
This paper seeks to answer these questions. It is divided into three sections. The first section discusses the various laws concerned with transitional justice passed in Libya since the February uprising first began. The second section analyses the reasons for legislation’s failure to implement a comprehensive program of transitional justice. The third section examines the short and medium-term requirements of transitional justice.
I: Transitional Justice Legislation
If some countries suffer from a paucity of transitional justice legislation, a quick glance at the Libyan statute book shows that it has the opposite problem: legislative congestion. Successive Libyan legislatures have issued a whole range of constitutional declarations, laws and decrees pertaining to transitional justice, including (by date of issue):
• Law 5/2011 establishing the National Council for Public Freedoms and Human Rights
• Law 16/2012 adding certain provisions to Law 10/2012 disbursing a financial sum to Libyan families
• Law 17/2012 establishing the rules of national reconciliation and transitional justice
• Law 35/2012 pardoning certain crimes
• Law 37/2012 making it a criminal offence to glorify the dictator (repealed)
• Law 41/2012 amending Law 17/2012 establishing the rules of national reconciliation and justice in Libya
• Law 50/2012 on compensation for political prisoners
• Law 51/2012 amending a provision of Law 25/2012 pardoning certain crimes
• Law 52/2012 establishing limitations on certain offices (overturned pursuant to Constitutional Appeal 16/59AJ)
• Law 63/2012 establishing the Anti-Corruption Commission
• Law 10/2013 criminalising torture, forced disappearance and discrimination
• Law 13/2013 on exclusion from political and administrative offices
• Law 29/2013 on transitional justice
• Law 1/2014 providing for the families of the martyrs and missing persons of the 17 February Revolution
• The General Amnesty Law (6/2015)
Naturally, there is no space in this paper for in-depth discussion of all of these laws. We can, however, look in detail at the most important examples. The first piece of legislation concerned with transitional justice was Law 17/2012 establishing the rules of national reconciliation and transitional justice. This law consists of 18 articles and is divided into two sections.
The first section (Article 1) defines transitional justice as “a package of legislative, judicial, administrative and social measures addressing events that took place under the old regime in Libya and the violations of human rights and basic human freedoms carried out by the state, and efforts to address by amicable means enmity between certain groups within society.”
There is no clear timescale given: Article 2 states that “the provisions herein shall be applicable to events occurring from 1 September 2019 until such time as the desired effect hereof is achieved. Said provisions shall not be applicable to those persons who concluded a negotiated settlement under the old regime. Nor shall they be applicable to conflicts in respect of which a judicial ruling has been issued and executed.” Article 3 goes on to specify the aforementioned “desired effects” for individuals and for society.
The second section is given over to the Truth and Reconciliation Investigative Commission. Article 4 provides for the formation of a body operating under the Transitional National Council (TNC) and headquartered in Tripoli. This commission has its own legal personality and independent budget. Article 14 establishes the principle of financial or reputational compensation for all those harmed by the crimes of the old regime. So far, however, the law has not been put into force: no implementing regulations have been issued, and the necessary administrative framework has not been put in place.
Shortly thereafter, in early May 2012, the TNC issued Law 35 pardoning certain crimes. This law amnestied crimes committed before it came into force, terminating any associated criminal proceedings and annulling all sentences and other attendant legal effects under the following conditions:
• Where the money has been returned (in cases involving embezzlement of public money);
• Where the perpetrator has reconciled with the victim or been officially forgiven by their closest male relative (walī’d-dam);
• Where the perpetrator or accused person has voluntarily handed over the weapons or instruments used in the crime;
• Where the perpetrator had submitted an official repudiation (iʿlān tawba) of his actions to the relevant criminal court.
Some crimes were explicitly excluded from the amnesty:
• Crimes committed by members of Gaddafi’s immediate family, his in-laws, and his ‘agents’ or ‘aides’ (aʿwānuhu).
• Ḥudūd crimes referred to the judiciary.
• Kidnapping, torture and violent rape.
• Acquiring and selling narcotics or psychotropics.
• Poisoning water or food supplies or dealing in spoilt food or medicine.
In order to guarantee that those included in the amnesty would not reoffend, Article 3 of the law stipulated that its provisions would cease to apply to any beneficiary in the event that they committed any new deliberate crimes within five years of its going into effect.
And to guarantee neutrality, Article 4 emphasises that the judiciary will be responsible for settling any issues arising from the implementation of the law, subject to general rules. Article 5 also contains a positive provision: that “the provisions herein shall not prejudice the right of the injured party to restitution or compensation.”
The TNC was also responsible for Law 38/2012 on transitional justice procedures. Unfortunately, this law reinforced the idea of letting perpetrators escape punishment and accountability. Article 4 states that “there shall be no punishment for those military, security or civilian activities required by the 17 February Revolution and carried out by the Revolutionaries in order to ensure the success of or protect said Revolution.” For many supporters of the old regime this law seemed like a prime example not of transitional but of retributive justice.
In 2012 the TNC’s term ended and the first post-revolutionary General National Congress (GNC) was elected. In clear contradiction to the idea of amnesty, the GNC promulgated various laws punishing supporters of the old regime. Law 13/2013 on exclusion from political and administrative offices, for example, barred anyone who occupied any position of importance under the Gaddafi regime from holding political or bureaucratic office for a period of ten years. Its definition of political or bureaucratic office was expansive, going much further than any international precedent.
It created a deep rift in society between victors enjoying all their rights and vanquished with no rights at all. This exacerbated political and military conflict and made the success of a comprehensive transitional justice programme much less likely, particularly given that it was issued at the behest of armed groups that took control of the GNC after besieging and ultimately storming the Ministries of Justice and Foreign Affairs.
This law established vague criteria by which political rivals could be excluded from public office for ten years, and in the absence of clear rules, has been used selectively to penalise some of those who worked for the Gaddafi regime – without any kind of objective underpinnings, without regard for the principle of equality before the law, and without a well-defined implementation mechanism.
It also created a new principle of retroactive effect and laid the groundwork for punishment not of deeds but of categories of people. It therefore violates individual civil and political rights and some of the most important human rights, such as the right to defend oneself and the right not to be punished for an unproven crime.
Those who fall victim to the law are stripped of a fundamental constitutional right: the right to a free and fair trial before facing any punishment. It also threatens to further weaken the Libyan state by depriving it of many of its most qualified staff.
And in addition to the fundamental contradiction involved in simultaneously adopting a system of compensatory justice and a system of retributive justice, most transitional justice legislation in Libya has been marked by a “to the victor the spoils” mentality.
In 2013 the GNC passed a new, comprehensive transitional justice law (Law 29/2013), which begins by defining transitional justice. This law comprises 34 articles distributed over six sections: general provisions; the Truth and Reconciliation Committee; inspecting institutions; compensation; investigations and trials; final provisions. According to Article 3 of this law, its provisions apply to incidents between 1 September 1969 and the end of the transitional period, defined as the election of a legislative assembly in accordance with the Permanent Constitution.
The law is thus still in force as of the time of writing because the draft constitution has still not been adopted by popular referendum, meaning that the state institutions emanating from it remain provisional – including the legislative assembly. Its goals are numerous: it legally recognises the 17 February Revolution as righteous and the old regime as corrupt and despotic, and seeks to preserve social peace, prevent human rights violations, establish the extent to which different state organs are responsible for such violations, document incidents of interest to transitional justice, compensate victims, and examine institutions.
The law also expands the definition of transitional justice, extending it to crimes and violations committed by revolutionaries or those fighting under the banner of the TNC or other bodies – that is, it is not limited to the crimes of the old regime. This praiseworthy development was intended to put to rest the criticism that previous laws had neglected to deal with violations accompanying and following the 17 February Revolution.
It also states that transitional justice extends to “1) positions and actions that damaged the social fabric and 2) acts necessary to bolster the Revolution but marked by certain behaviours incompatible with its principles.” Law 29 also provides for the formation of a Truth and Reconciliation Investigatory Commission attached to the Parliament. The Commission is empowered to investigate human rights violations within the mandated period and make recommendations on how to proceed (including referring them to the judiciary).
It is compelled to submit a comprehensive report detailing the incidents it has investigated and identifying those responsible as well as the reconciliation efforts it has made. It also submits a report recommending further measures in those cases it has investigated. By default its sessions are open to the public except where it decides otherwise because of security considerations or to protect public
morals. Finally, it enjoys priority over the courts in investigating incidents: the judiciary cannot decide disputes that are being heard by the Commission until it concludes its investigations, and if an incident subject of a court dispute is submitted to it then court proceedings must immediately be suspended.
The law also establishes another commission empowered to examine state institutions (security, judicial, military and financial as well as any other institutions the Cabinet sees fit to subject to scrutiny). This commission is likewise granted the power to hand over cases to disciplinary authorities, the public prosecutor or the Cabinet for further action.
Finally, Law 29 creates a victim restitution fund, with the specific sums and methods of payment to be defined by implementing regulations issued by the Cabinet. The power to try relevant cases is restricted to civilian criminal courts, removing jurisdiction in cases involving crimes committed by the military or for political or military ends from military courts.
Steps are also taken against the mass granting of citizenship after the February uprising: the law provides for a legal committee to review decisions to grant nationality. But although this law is more comprehensive than its predecessors and enshrines many of the central principles of transitional justice, it has still not been put into practice: no implementing regulations have been issued and no implementation mechanism put in place.
Mahmoud Hamad, Associate professor of Political Science at Cairo University.