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.
III: Opportunities for Transitional Justice in Libya
Most students of transitional justice describe it as a fundamentally political process relying on interlocking efforts by politicians, the state bureaucracy and particularly the judiciary, the security establishment and civil society activists – as well as support from the international community.
This author believes that any comprehensive transitional justice in Libya will require several preconditions to be met and agreements to be made both on Libyan soil and between the regional and international powers involved.
There are perhaps four basic requirements: a stable constitutional regime valorising transitional justice; a single unified set of state institutions; a set of important reconciliations on the ground; and a national consensus on the ideal transitional justice program.
The first requirement is, theoretically, close at hand. After a monumental effort, the Constituent Assembly has managed to produce a draft constitution meeting the difficult conditions for ratification.
All that is needed now is the political will to successfully hold a referendum allowing the constitution to be formally adopted. The final draft of the constitution makes limited reference to transitional justice: only Article 181, a relatively short article within Section 11 (Provisions for Transition) is directly pertinent.
This article stipulates that:
“(1) The state shall undertake to implement transitional justice measures; a law shall be issued to govern fact-finding, compensation for harm done, accountability, and examination of institutions.
(2) A Transitional Justice and Reconciliation Commission shall be created whose composition shall be determined by law in a fashion guaranteeing representation for all the constituent communities of Libyan society, neutrality, independence and competence, [and establishing] the duration of its work; [this Commission] shall undertake to design and implement transitional justice programs as part of a comprehensive national reconciliation.”
This article is imperative because it commits the state to the requirements of transitional justice and the creation of an independent institution for this purpose. Also important is the stipulation that all segments of Libyan society should be represented in order to ensure the process’s social legitimacy, that this body should be independent, and that its work should be explicitly linked to a comprehensive national reconciliation.
Alongside this article there are several others of significant relevance to transitional justice. Article 36 (Crimes Against Humanity), for example, which prohibits all forms of behaviour constituting crimes against humanity, war crimes, genocide or terror, stipulates that there is no statute of limitations on such crimes and that they are excluded from any amnesty.
This may limit the Transitional Justice Commission’s ability to use pardons to put the past to rest and move forward. Article 61 (The Right to a Trial), meanwhile, guarantees all citizens the right to legal recourse and to a fair trial before a lawful and appropriate judge (qāḍin ṭabīʿiyy), and states that no law or government decision is exempted from judicial oversight: “nor shall any behaviour that prejudices or threatens rights or freedoms be excluded [therefrom].”
Article 62 provides for a number of other guarantees including presumption of innocence and forbids extrajudicial punishment as well as stipulating that “no violation shall command punishment or sentence prejudicial to liberty except those acts committed after this law enters into force; any punishment shall be personal and appropriate to the crime and its perpetrator.”
Article 182 (Reconstruction) stipulates that “the state shall give priority in its programs to the reconstruction of those cities and villages that have suffered the effects of military activities and armed conflict, depending on urgency, in a fashion accounting for development requirements country-wide; the state shall create the necessary mechanisms for this.”
It is also important to note that the draft constitution does not provide for the exclusion of the old regime’s supporters: the drafters considered it more important to create a document that could unite Libyans rather than dividing them.
Once the constitutional structure is in place political divisions on the ground must cease. In order to pave the way for transitional justice it is urgently necessary to unify the institutions of the state, particularly the three “sovereign institutions” (muʾassasāt siyādiyya): the army, the police, and the judiciary.
Barring this, fragmented institutions and militia barbarity will mean that any attempts to implement transitional justice will be dead on arrival. Alongside political will, transitional justice requires a stable political and security situation allowing the country to rebuild, move the reconciliation process forward and consolidate the rule of law.
Transitional justice cannot exist without stability and peace. It is impossible to imagine a functioning judiciary in a country where
the state does not control the security situation. The courts cannot go about their business when there is no guarantee that judges will be safe or that judgements will be executed.
This will require a coordinated effort to address the paramilitary problem. As it stands there are many distinct armed groups, and although some are formally affiliated with official bodies (the Ministry of Defence, the Interior Ministry), this affiliation is typically superficial, a means of gaining legitimacy: in practice the state has no effective control over any of these groups.
It is also important that we learn from transitional justice programs implemented in the global south in countries suffering similar problems to those of Libya.
With such a complicated situation and such weak state institutions we cannot afford to reinvent the wheel. The South African experience stands out here as a ground-breaking experiment in terms of both the mechanisms employed and the results achieved.
This has been recognised by both Tunisia and Morocco. “The Tunisian Ministry for Human Rights and Transitional Justice sought the help of the South African Ministry of Justice in forming a committee along the lines of the Truth and Reconciliation Committee created in South Africa in 1995.
In 2003, Morocco established its own Justice and Reconciliation Commission to investigate human rights violations between 1956 and 1999.” Thereafter a comprehensive program of transitional justice will require a series of reconciliations: political, social, economic and ethnic.
A political reconciliation between those who supported the Revolution and those who supported Gaddafi, helping to mend a social fabric torn apart by violent political factionalism. A social reconciliation bringing together tribes or cities that have fought bloody conflicts with one another and addresses the attendant population displacement, providing a final and comprehensive solution to divisions within the body politic.
An economic reconciliation between those deprived of wealth and power and those elites who have monopolised it whether under Gaddafi or after the February Revolution – and returning stolen assets to the public purse, allowing the state to compensate those in greatest need.
And an ethnic reconciliation between the different communities (Arab, Amazigh, Touareg, Toubou and others) ending injustice and putting into practice the principles of citizenship and equality. Integrating different tribal, religious and ethnic groups is a key prerequisite of unity and justice.
Finally there must be a political will conscious of the importance of transitional justice for a stable state and society. Passing laws is not in itself enough if the state does not put all its energy into the transitional process.
This will be importance to individuals, communities and society as a whole, and emphasis on the importance of societal participation in law-making.
Laws must be drafted with universal participation in such a way that they reflect in-depth national discussions: any transitional justice project must be a national project bringing everyone together.
Before being drafted and imposed by the legislature any law must be inspected and discussed by all sections of society – by civil society organisations, victims’ associations and families, activists and experts – before mechanisms are developed appropriate to the specific features of the Libyan situation.
The idea, aims and mechanisms of transitional justice must also be explained to tribal, religious and local leaders so that they can pass them on in turn to the public.
Tribal sheikhs and notables enjoy a prominent position in Libyan society, particularly outside big cities; religion likewise plays an important role in Libyans’ lives and prominent religious personalities will be able to attract the support of broad swathes of society.
It is also important to win the backing of academics, writers, media figures and opinion leaders. Failure to do so has scuppered several transitional justice programs in recent years.
As far as implementation is concerned, it must be emphasised that transitional justice is a comprehensive system – that the parameters of every part must be laid out in such a way that no individual part contradicts either the system as a whole or any other individual part. Truth committees must have total independence.
This can be achieved by making sure that civil society organisations form a significant part of their makeup and choose their representatives independently, as well as by making sure that a quorum is required to take decisions, ensuring that these representatives cannot be marginalised.
Sources of funding that do not depend on the agreement of particular government bodies must be guaranteed by law, and the committees must be allowed to determine their own internal procedure, with the law obliging them to be entirely open and transparent except in exceptional circumstances where secrecy is necessary to protect those appearing before them.
They must also be obliged to publish their findings directly rather than passing them on to administrative, parliamentary or judicial bodies. And the law must provide for mechanisms by which these findings can be developed into practical measures – either by referring cases to the judiciary or providing compensation – and ensure that state bodies will carry out these measures, putting in place appropriate penalties to deter non-compliance.
Truth committees should also have priority in investigating complaints, disputes and cases relevant to transitional justice and involving violations and crimes that fall within its remit. Only civilian courts should have jurisdiction in such cases, regardless of the identity of the perpetrators or the circumstances in which they took place.
It would also be sensible to create a mechanism to oversee supplementary investigations carried out by the Public Prosecutor’s Office or investigating judges, involving representatives of the truth committees and civil society; complaints and testimony submitted via this mechanism should then be referred to a higher judicial body capable of intervening to correct the course of investigations or trials if necessary.
With regard to compensation and redress, assessing material and psychological compensation for harm caused to victims or their relatives should be the responsibility of truth committees or an independent commission formed for this purpose.
Compensation set by truth committees or the independent commission should be implementable without approval from any executive, legislative or judicial body; the state should provide the necessary funding out of its budget.
An independent body should also be created comprising representatives of the people as a whole and of civil society organisations, in order to produce plans for the reform and restructuring of state institutions relevant to transitional justice and establish a timeframe for their implementation.
This body should also investigate corruption cases and establish what measures should be taken in respect of them – including criminal proceedings or internal disciplinary measures. It should have the power to propose new laws necessary for it to achieve its goals and submit them directly to the legislature.
And its decisions (but not its proposed laws) should be binding on government entities even without approval from the executive or the legislature, with non-compliance punishable by law. If all these conditions are met, the groundwork will be laid for a successful, integrated program of transitional justice ushering in a united, independent and democratic Libya in which the law is sovereign.
As the conflict deteriorates and ever more appalling crimes are committed, political and social stability is inconceivable without citizens supporting a comprehensive plan putting the past to rest and effective measures to prevent these crimes from happening again under the new state’s institutions.
If Libya is successful, then its model will serve as a beacon to other countries in the region entering post-conflict periods.
Mahmoud Hamad, Associate professor of Political Science at Cairo University.