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.
II: The Failure of Transitional Justice Laws
There are many reasons for the failure of transitional justice projects in Libya. Some involve the breakdown of the political transition process, while others are closely linked to the transitional justice legislation itself. Successful political transition is a necessary if not sufficient condition for a transitional justice program to be viable. Regrettably, in Libya transitional justice has not been part of an integrated plan for social peace.
In the first part of this section we will discuss the negative repercussions of the breakdown of the political process for transitional justice. In the second part we will consider the various shortcomings of the transitional justice legislation, including the absence of legislative strategy and planning, the limited discussion between different legislative bodies and the poor drafting of laws.
On the one hand, the particular features of the Libyan case –the extensive legacy of violations committed under a despotic regime where a single man dominated political life and undermined all other institutions – have inevitably exacerbated the complications and difficulties of transitional justice.
Successive governments have used up all their energies dealing with political fragmentation, security issues and frictions between different tribes or ethnic groups, as well as in attempts to meet citizens’ basic needs. As a result, the implementation of transitional justice laws has fallen to the bottom of the list of priorities. On the other hand, Libya suffers from a deep-rooted tribalism hostile to the law and to equality between citizens, and regional disputes feed narrow localist thinking and particular interests at the expense of the concept of the state.
This increases Libya’s exposure to the risk of separatism. The ominous decline in the security situation and the wide dissemination of weapons and militias outside legitimate state structures, the weakness and novelty of civil society, and the fragility of state institutions (to the point that they are incapable of performing their functions competently and effectively) also place Libya at particular risk.
Furthermore, struggles between neighbouring countries and international powers have entrenched and expanded the scope of political and military conflict: one recent report from the European Council on Foreign Relations states that “the role of foreign states in Libya’s civil war has long been murky, yet hugely significant.
Interventions designed to serve foreign states’ political or regional interests have been a constant feature of the country’s post-revolutionary fractiousness and strife.” The failure of the UN and other regional and international organisations to deal with political and social divisions have consigned transitional justice initiatives to an early grave.
Although more than seven years have passed since the 17 February uprising, political and institutional divisions remain the order of the day. The persistence of these divisions has been the greatest obstacle to efforts to achieve transitional justice. The victory of the National Coalition Party in the 2014 elections and the refusal of some of the other parties to accept the results added to the deep, structural reasons for fragmentation and hence produced greater divisions between Libyans.
These divisions, initially political and ideological, soon became material and geographical. This has manifested in competing legislative and executive bodies: an independent House of Representatives and government (HoR) in eastern Libya supported by Haftar’s forces, and the Government of National Accord (GNA) in Tripoli (led by Faiz Sarraj, prime minister under the Skhirat Agreement) supported by various armed groups.
This has inevitably meant divisions within most public institutions. Not only politics and ideology are involved here but both local and international political, security and economic interests. This division is one of the most serious challenges facing the reconciliation and transitional justice process in Libya. A state having sovereignty over all its territory is a basic requirement for any legislation to be implemented, even legislation of less crucial import than that concerning transitional justice.
Alongside all this, the tribal and ethnic makeup of Libya has stymied national reconciliation. Libya’s social structure is predominantly tribal, and tribes played an important role in the Revolution. Unfortunately, years of divide-and-conquer policies under the old regime intended to guarantee control over society have left behind a bitter legacy.
Gaddafi was able to foment tensions between various tribes and areas of the country, tensions that have persisted after his fall from power. Tribal alliances during the Revolution produced social divisions and have left behind deep clefts in the Libyan social fabric.
These clefts have impeded democratic transition and the implementation of transitional justice laws seen as biased in favour of particular tribal groups. Sometimes they have developed into armed clashes, both during and after the Revolution.
This has created deep and enduring fault lines in the body politic and in society. There are now loyalist cities and tribes and opposition cities and tribes. Examples of this include the conflict between Amazigh-majority Zwara and its Arab neighbours in Jumayl and Riqdalin, the fierce hostility between Misrata and Tawergha, the feud between the tribes of Zawiya and Warshefana, and the fully-fledged war between Awlad Suleiman and the Qadhadhfa.
The chaotic security situation has been one of the most serious obstacles to the transition process since Gaddafi’s ouster. One of the enduring dangers in Libyan society has been the broad availability of weapons of every kind – light, medium, and heavy – and militias’ use of this vast arsenal to pursue political and economic goals.
As soon as the common enemy (the regime) had been dispensed with, armed groups quickly turned on one another, creating complex security problems. The circulation of weapons has stymied even state-building efforts, never mind national reconciliation and transitional justice initiatives.
The situation is complicated further by the fact that these weapons are concentrated in the hands of tribal or religious militias outside the control of the central government and closely linked to foreign regimes or intelligence services. The disarmament, demobilisation and reintegration process is thus ineluctably linked to the implementation of transitional justice mechanisms. And troublingly – despite the many years that have passed – militias and armed groups are more brutal and more dominant than ever, not only in the countryside and provincial towns but in major cities (above all Tripoli).
This has been exacerbated by the weak institutional structure of the Libyan state. The old regime undermined the competence and effectiveness of state institutions. For almost 40 years, Gaddafi marginalised both civil and military institutions in favour of the so-called Revolutionary Committees (al-Lijān ath-Thawriyya) in order to guarantee complete control over state and society.
One of the most vital institutions to have been undermined in this way is the judiciary: the regime integrated non-judicial institutions like the Public Prosecutor’s Office, the Government Litigation Authority, the Public Advocacy Department and the Law Directorate into the judicial arm in order to undercut any claim to judicial institutional independence.
Exceptional courts and political intervention in judicial affairs became defining features of the legal system. While judges were freed of this particular set of political shackles after Gaddafi’s ouster, the judiciary has nonetheless faced serious challenges in the post-revolutionary era.
Many judges and lawyers (both defence and prosecution) are afraid to work in the absence of a regime capable of protecting them. Numerous judges have been threatened, and some judges and prosecutors have been assassinated or kidnapped by defendants.
This has meant that the judiciary cannot carry out its duties, particularly in light of the frightening increase in human rights violations – forced disappearances, arbitrary arrests, deaths under torture, assassinations, kidnappings, destruction of public and private property – the great numbers of refugees and victims of forced displacement, and the various prisons and detention centres outside state control.
It is only fair to note that these failures are not only due to domestic problems. Various international and regional factors have also impeded re-stabilisation. The UN has not carried out its mandate in Libya. Despite significant efforts made by successive Special Representatives of the Secretary-General (SRSG), it has not been able to help Libyans escape the vice-like grip of the crisis.
This reflects above all else conflicts between international and regional powers and their inability to agree on a settlement as well as shortcomings in the UN Support Mission in Libya (UNSMIL).
UNSMIL has been led by four different officials, each with a very different idea of how to solve the conflict, and the short time available has not allowed any of them the opportunity to fully grasp the details of the Libyan crisis or develop integrated approaches to problems and put them into practice on the ground.
Two of those chosen did not speak Arabic, making their mission much more difficult; the same applies to many lower-ranking employees. And the revelation that Bernardino León – former Special Representative and head of UNSMIL – engaged in secret negotiations with the UAE during his time in Libya has made the Mission’s neutrality seem exceedingly suspect.
Interventions by regional and international powers have also had a serious impact on prospects for a solution in Libya. Various countries have provided support to specific factions, either to further regional aims or to spite other powers.
Libya has thus become a theatre of proxy warfare, impeding any political solution or comprehensive reconciliation. A few countries have gone beyond media or financial interventions and confronted revolutionary change in Libya directly, even providing military support and materiel to particular political and military forces on the ground and thereby worsening violent unrest and political and security chaos.
Egypt and the UAE have provided assistance to Haftar and the HoR government in the East in order to undermine the Islamism dominant in the GNA: Cairo and Abu Dhabi believe that Islamist forces are the greatest threat to their regional political project. Doha and Istanbul, meanwhile, have given substantial support to the other side.
The same applies to European forces: France is backing Haftar while Italy supports the GNA in Tripoli. Alongside all this comes transitional justice legislation both badly drafted and poorly executed.
Post-revolutionary legislation in general has suffered from several flaws. It has become a political tool susceptible to manipulation and improvisation according to political and ideological whims.
While the GNC and its Islamist parties prefer an approach that makes a comprehensive break with the Gaddafi regime, the HoR has taken a more conciliatory approach. This clash of visions and concepts appears clearly in the different transitional justice legislation issued by these different institutions.
Law 35/2012 pardoning certain crimes and Law 38/2012 on certain procedures concerning the transitional period (both issued by the TNC), Law 29/2013 on transitional justice (promulgated by the GNC), and the General Amnesty Law of 9 September 2015 (issued by the HoR) all provide for amnesties – despite UN Resolution 1970 (26 February 2011), which refers all Libyan cases to the ICC, calls for the Libyan authorities to cooperate with the ICC Prosecutor, and imposes travel bans and asset freezes on sixteen named people (members of the Gaddafi family and certain high-ranking officials involved in major crimes).
Law 17/2012 does not mention criminal prosecution despite this being the foundation of any transitional justice mechanism, and Law 29/2013 likewise avoids discussing the topic despite Article 3 enjoining “accountability for human rights violations committed under cover of the state or an institution thereof or an individual operating with support therefrom.”
Note the vague phrasing, which is open to multiple interpretations and throws the door open to criminalisation and mass trials, risking a shift towards retributive justice.
As far as this legislation is concerned (and thus the Truth and Reconciliation Committee established under it), “violations” are unique to the Gaddafi era: those that have taken place after his ouster and been recorded by international organisations are dismissed. All this promotes selective, retributive justice and undermines the transitional justice process. Supporters of the Gaddafi regime typically take a very negative view of all efforts to enact transitional justice legislation.
There is a widespread belief that the purpose of these initiatives is to allow the victors to take revenge and to consolidate political power rather than to pursue a comprehensive system of justice that strengthens the unity of Libyan society. No connection has been made between the program of exclusion from political office and political reconciliation. Quite the opposite: the law provides for a form of accountability rooted in retribution and unidirectional justice targeting those linked to the defeated regime.
It has thus magnified divisions within the country, thereby reducing the transitional justice program’s prospects of success. Moreover, the philosophy governing Libyan transitional justice legislation has many flaws of its own. All laws prior to Law 29/2013 were incomplete, covering some aspects of transitional justice while neglecting many others. Law 29/2013 itself, meanwhile, suffers from numerous problems that have impeded implementation. It was issued in a hurry, without consulting public opinion – that is, without sufficient media attention or discussion – giving weight to the belief that it was the result of pressure placed on GNC members by armed militias.
Moreover, there was no attempt to include civil society organisations or victims of violations before and during the Revolution in discussion of what the law should look like. The legislature’s choice to use the term “national reconciliation” (muṣālaḥa waṭaniyya) rather than “transitional justice” was likewise unfortunate, causing the public a great deal of confusion because it gave them the impression that this law meant pardoning and not punishing those responsible for killings, torture and rape.
As a result the law never enjoyed the kind of popular support needed for successful implementation of any transitional justice legislation. The drafters also neglected various questions relating to the Truth and Reconciliation Commission, failing to assign it premises or the necessary manpower. The Commission itself was flawed: its membership was made up exclusively of retired or working judges without including political scientists, psychologists or sociologists as it should have.
Judges alone do not possess the necessary professional background to lead the transitional justice process, and the nature of judges’ work perhaps makes them less than ideal figures to implement transitional justice mechanisms. Victims likewise seem to play a very limited role in the Commission’s work. They are not mentioned in this law except with regard to compensation. This does not provide sufficient space for in-depth study of the legacy of human rights violations via open hearings or for victims to express their own opinions.
Moreover, the law has only been partially implemented: on the ground it has suffered the same fate as other statutes of its kind. Although a Commission has been appointed, the results of its investigations have not been published. The legislature has deliberately undermined the law, issuing parallel ordinances of direct relevance to transitional justice – whether prior legislation laying the groundwork for its failure or subsequent legislation that robs it of any meaning.
Some of its articles have been the source of deep and lasting controversy. The article concerning authoritative grants of citizenship, for example, has caused serious problems for ethnic minorities, particularly the Tuareg and Toubou peoples. Its defenders argue that the Gaddafi regime used grants of citizenship in order to attract non-Libyan mercenaries to fight in its ranks, in which case by revoking citizenship the state is simply striking down a grant that was illegitimate in the first place.
But Tuareg and Toubou leaders claim that those who obtained citizenship papers during and after the Revolution are native Libyans long denied them by the old regime; granting them citizenship thus corrected their status. This dispute, exacerbated by the article, proved a major impediment to the work of the Constituent Assembly.
Mahmoud Hamad, Associate professor of Political Science at Cairo University.