Centre for Research on Peace and Development (CRPD) KU Leuven

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Transitional Justice without a

Peaceful Transition—The Case

of Post-Gaddafi Libya

Mark Kersten, London School of Economics, UK

CRPD Working Paper No. 38

2015

CRPD Working Paper No. 38

2

Transitional Justice without a Peaceful Transition—The Case of Post-

Gaddafi Libya

Abstract

This paper examines Libya’s experience with transitional justice since the conclusion of the

country’s 2011 civil war and the onset of its post-Gaddafi transition. The core of the paper focuses

on three transitional justice mechanisms: retributive criminal justice, lustration under Libya’s

Political Isolation Law, and the amnesty granted to revolutionaries under Law 38. None of these

mechanisms have been implemented within a peace or peacebuilding process. Libya’s

experience with all three of these transitional justice approaches have acted to perpetuate, rather

than alleviate, a climate of selective impunity and vengeance against those associated with the

previous regime whilst simultaneously elevating the revolutionary legitimacy of Libya’s rebel

groups and militias. Transitional justice efforts to day have, as a result, frustrated the construction

of a post-war peace. The paper concludes by arguing that the current UN-led peace negotiations

may offer an opportunity to integrate transitional justice and peacebuilding processes.

Author

Mark Kersten – London School of Economics, UK

[email: mark.s.kersten@gmail.com]

This working paper is a draft version of the chapter ‘Transitional Justice without a Peaceful

Transition—The Case of Post-Gaddafi Libya’ in the book Building Sustainable Peace: Timing and

Sequencing of Post-Conflict Reconstruction and Peacebuilding, edited by Arnim Langer and

Graham K. Brown, Oxford University Press 2016.

The ‘Building Sustainable Peace’ project was made possible by a generous grant of Flanders

Department of Foreign Affairs.

CRPD Working Paper No. 38

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1. Introduction: Transitional Justice, Peacebuilding and Libya

While it may be enticing to ascribe the Libyan uprising to the forces of ‘good’ citizens revolting

against the ‘evil’ forces of the regime of Muammar Gaddafi, Libyan uprising and civil war was, in

fact, the result of long-simmering grievances and a profound sense of historical injustice finally

coming to a head.1 In the early weeks of 2011, Libyan demonstrators flooded the streets, calling

for justice and reform. Indeed, claims of and for ‘justice’ infused and inspired the 17 February

Revolution from the outset.

It is notable that the first protests against the regime were organized by a group representing the

families of those who perished in the Abu Salim Massacre in which 1,600 prisoners were

exterminated by agents of the regime of Muammar Gaddafi in 1996. One of the leading figures

and key organizers, Fathi Terbil, was subsequently arrested, stoking further dissent and

demonstrations. Other Libyans agitated against the absence of civil and political rights as well as

socio-economic grievances. Their demonstrations and the consequent heavy-handed and brutal

response from the regime helped to precipitate a remarkable consensus that concerted

international action was needed in order to avert a humanitarian crisis and the slaughter of

civilians. Here too, the appropriate response was to frame the conflict as a matter of justice. On

26 February 2011, the United Nations Security Council unanimously referred the situation in Libya

to the International Criminal Court (ICC) (UNSC 2011a). Just a few weeks later, the Security

Council authorized a no-fly zone and referred to Libya’s ‘responsibility to protect’ its own citizens

(UNSC 2011b). In short, claims of and for justice were central to Libya’s uprising and civil war,

one which ended with the demise of the regime and the death of its leader. Yet, as so often is the

case in conflict and post-conflict contexts, making claims to justice or fighting in the name of

justice does not easily translate into a just transition or, more specifically, into effective means of

achieving transitional justice.

1 Mark Kersten is a post-graduate researcher at the London School of Economics. The paper relies heavily

and adapts research previously presented in Kersten, M. (forthcoming 2015). Justice in Conflict: The ICC

in Libya and Northern Uganda (Forthcoming 2015); Kersten, M. (forthcoming 2015). Aligning Diplomatic

and Judicial Processes within the Framework of International Law: Case Study Libya. Academie

Diplomatique Internationale and International Bar Association; and Kersten, M. (forthcoming 2015). Libya’s

Transitional Justice Experience (October 2011 – December 2014). International Research & Exchanges

Board.

CRPD Working Paper No. 38

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Transitional justice and peacebuilding, particularly liberal peacebuilding, are increasingly

intertwined endeavours (Pankhurst 1999: 254; Sriram 2007). Insofar as both transitional justice

and peacebuilding are pursued in the same political and temporal contexts, this should be

unsurprising. But there is more to the relationship according to Chandra Lekha Sriram (2007:

579): ‘Transitional justice strategies are not simply contemporaraneous with peacebuilding: they

share key assumptions about preferable institutional arrangements, and a faith that other key

goods—democracy, free markets, “justice”—can essentially stand in for, and necessarily create,

peace.’

While transitional justice may not have been a consideration for former UN Secretary-General

Boutros Boutros-Ghali when he penned An Agenda for Peace, liberal peacebuilding’s

combination of respect for human rights and the rule of law, taken together, suggests that states

which seek to emerge from violent political conflict as liberal democracies must confront and

reckon with past rights abuses. Concomitantly, there is an assumption that only those states which

recognize and respect human rights and the rule of law can truly be liberal democracies. To forgo

justice and accountability is having the integrity and quality of democracy, rule of law, and respect

for human rights questioned. Many also insist, as Barash (2000: 155) has, that ‘Human rights and

peace are inextricably connected […] the denial of human rights is itself a denial of peace.’2 This

stems, at least in part, from the need to address human rights violations and past oppression as

a cause and dynamic of conflict. (Schmelzle and Dudouet 2010: 7).

Of course, much of the nexus between (liberal) peacebuilding and transitional justice, as

described above, is normative, prescribing as it does what ‘peace’ requires. Yet, while this paper

makes no judgement of this normative agenda of peacebuilding, an increasingly popular approach

of addressing such violations is via transitional justice mechanisms, as can be seen in the case

of post-Gaddafi Libya.

To suggest that Libya has pursued peacebuilding and transitional justice in an integrated manner

would be wrong. Transitional justice in Libya has never been part of a wider peace or

peacebuilding process. Indeed, to argue that Libya has been a theatre of post-conflict

peacebuilding since the end of the civil war would be misleading. Recent violence between

regional militias and political groups only recently instigated a UN-brokered peace process, four

2 See also Parlevliet, M. (2010).

CRPD Working Paper No. 38

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years since the civil war came to an end. To date, multiple rounds of negotiations have not

resolved the country’s crisis and Libya remains divided, primarily between the predominantly

Islamist Libya Dawn forces which control the capital of Tripoli and those groups allied to the

internationally recognized government in Tobruk. Bernardino León, the UN special envoy to Libya

who is mediating the negotiations, has been sober in his analysis of the situation in the country,

declaring that ‘The general impression is the country is very close to total chaos’ (Cumming-Bruce

2015) and that it was ‘difficult to be optimistic’ that a peace agreement between the parties would

be reached (Nicholas 2015).

Still, it cannot be claimed that Libya has ignored transitional justice. The country has been the

locus of international and domestic prosecutions for those deemed responsible for human rights

abuses and international crimes. In the wake of the civil war, transitional authorities passed an

amnesty law protecting participants in the revolution from prosecution as well as a lustration law

as a means to vet former regime officials. It also passed a Transitional Justice Law in 2013 which

seeks to establish a fact-finding or truth commission (the Fact-Finding and Reconciliation

Commission), a reparations scheme for victims and survivors of violence and rights abuses, and

has witnessed some ‘traditional’ and ‘informal’ justice and reconciliation processes.3 However,

almost four years since the Libyan uprising and civil war came to an end, very little in terms of a

peaceful transition or of transitional justice has been achieved (Kersten 2015b forthcoming).

Post-Gaddafi, post-civil war Libya has witnessed the extension of one-sided justice and

vengeance against those associated with the regime into the transitional phase. This is reflected

in the selective use of those transitional justice mechanisms that have been implemented in the

country. Victor’s peace has translated into victor’s justice. Compounding matters, Libya today is

a highly divided state with two governments, one in Tobruk and one in Tripoli, each claiming to be

the legitimate authority and each waging military operations against the other.

This paper offers a critical examination of Libya’s experience with transitional justice since the

end of the country’s civil war and the onset of its post-Gaddafi transition. The core of the paper

focuses on three transitional justice mechanisms: retributive criminal justice, lustration under

Libya’s Political Isolation Law, and the amnesty granted to revolutionaries under Law 38 (2012).

3 These latter mechanisms have not yet become operational. For an overview, see Kersten (2015b

forthcoming).

CRPD Working Paper No. 38

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None of these mechanisms have been implemented as elements of a peace or peacebuilding

process. Instead, to date, Libya’s experience with all three have perpetuated, rather than

alleviated, a climate of one-sided justice and vengeance against those associated with the

previous regime whilst elevating the revolutionary legitimacy of Libya’s rebel groups and militias.

Such divisive transitional justice has not only compounded the pursuit of post-conflict

accountability but frustrated the construction of a post-war peace. The paper concludes by

arguing that the belated peace process brokered by the UN may finally offer an opportunity to

integrate transitional justice and peacebuilding processes.

2. Retributive Trial Justice

2.1 Background

In January and February 2011, Libyans took to the streets in protest of the forty-year rule of

Muammar Gaddafi.4 In its initial phases, the Libyan uprising was not about removing Gaddafi from

power—at least not explicitly. Instead, early agitation was instigated by demands for genuine

socio-economic and political reform in combination with frustration that previous calls for reform

as well as justice for political crimes had been largely ignored by the regime. The mood shifted

quickly and irrevocably as Gaddafi’s security forces responded to largely peaceful protests with

force. Towards the end of February 2011, the Libyan leader infamously declared that his security

forces would go ‘street to street, alley to alley’ (Foreign Affairs 2011) in an effort to ‘cleanse’ Libya

of any and all who opposed the regime. Reminiscent of rhetoric deployed during the 1994

Rwandan Genocide, Gaddafi also encouraged his supporters to annihilate the ‘cockroaches’

rising up against the regime (BBC News 2011). By March 2011, the situation in Libya had

descended into a civil war, with Gaddafi regime forces fighting to quell the insurgency of a

disparate collection of rebel factions and their political wing, the National Transitional Council

(NTC). At this point, the end goal of the opposition also transformed. The aim was now the

removal, by force, of the regime, a goal they shared with, and had reinforced by, NATO-led

intervening forces (Chesterman 2011).

4 Parts of the section on retributive trial justice draw heavily on Kersten (2015a forthcoming, 2016

forthcoming).

CRPD Working Paper No. 38

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As violence escalated, a consensus emerged that without a concerted international intervention,

mass atrocities would be perpetrated. The Security Council was faced with unprecedented

regional and state support for coercive measures to end the violence in Libya. The Organizations

of the Islamic Conference, the Arab League, and the African Union all called on the international

community to intervene. An impassioned plea by Libya's deputy permanent representative to the

UN, Ibrahim Dabbashi, appeared to tip the balance. On 21 February 2011 he declared:

Gaddafi’s regime has already started the genocide against the Libyan people since January

15. His soldiers and the mercenaries being flown into the country were ordered to shoot to

kill. […] We call on the UN Security Council to use the principle of the right to protect to take

the necessary action to protect the Libyan people against the genocide...We also call on

the prosecutor of the International Criminal Court to start immediately investigating the

crimes committed by Gaddafi (du Plessis and Louw 2011: 1–2).

According to Hugh Roberts (2011), “It was Dabbashi more than anyone else who, having

primed his audience in this way, launched the idea that the UN should impose a no-fly zone

and the ICC should investigate Gaddafi’s “crimes against humanity and crimes of war”.’

Against a backdrop of growing support for intervention in Libya, the Security Council passed

Resolution 1970 (on 26 February 2011) and Resolution 1973 (on 17 March 2011). Resolution

1970 was passed unanimously and consisted of a package of sanctions aimed at pressuring the

Gaddafi regime to cease its violent crackdown on civilians (UNSC 2011c). Less than a month

later, the Council passed Resolution 1973, authorizing a no-fly zone over Libya, precipitating a

NATO-led military intervention against the Gaddafi regime. (UNSC 2011d).

Within two weeks of Resolution 1970 passing, then-ICC Chief Prosecutor Luis Moreno-Ocampo

opened an official investigation into alleged crimes committed in Libya. On 16 May 2011, the

Prosecutor requested that the Court issue three arrest warrants for leader Muammar Gaddafi,

Abdullah al-Senussi, Libya’s head of internal and military intelligence, and Saif al-Islam Gaddafi,

CRPD Working Paper No. 38

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son of the Libyan leader and one-time heir apparent.5 As detailed in greater depth below, despite

calls to do so, the Court’s prosecutors did not pursue warrants of arrest for opposition forces.

On 27 June, the ICC's Pre-Trial Chamber issued warrants for all three.6 The effects of the ICC’s

intervention on Libya’s civil war have been covered elsewhere (Kersten 2016a, 2016b

forthcoming) and the focus of this paper, as noted above, is on post-Gaddafi Libya. Ultimately,

however, none of the individuals indicted by the Court were surrendered to The Hague. By

September, the Libyan opposition, backed by intervening NATO-led forces, achieved their goal of

regime change. In October 2011, Muammar Gaddafi was killed by opposition forces. The

circumstances surrounding the former Libyan leader’s killing instigated calls for ICC scrutiny

(Reuters 2011). However, the Prosecutor did not press with an investigation. In the end, the

Libyan leader’s death heralded the end of the Libyan civil war. It also represented the beginning

of Libya’s post-Gaddafi transition. Presciently, Ronald Bruce St John (2011: 295) warned: ‘Libyans

will likely find that winning the war was the easy part. It is not the war but the peace that will define

post-Qaddafi Libya.’

2.2 Trial Justice as Transitional Justice

Even before the conclusion of the civil war, Libya’s new political leadership adamantly expressed

its intent to prosecute all senior members of the Gaddafi regime in Libya. Doing so, they argued,

was essential to re-establishing the country as a sovereign member of the international

community. In October 2011, a month prior to the arrest of Saif, Colonel Ahmed Bani, the military

spokesman for Libya's interim rulers stated: ‘We will not accept that our sovereignty be violated

5 ICC Office of the Prosecutor, Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed

Abu Minyar Gadadfi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (16 May 2011), http://www.icc-

cpi.int/iccdocs/doc/doc1073503.pdf.

6 ICC Pre-Trial Chamber I, Warrant of Arrest for Abdullah Al-Senussi (27 July 2011), http://www.icc-

cpi.int/iccdocs/doc/doc1099332.pdf; ICC Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi

(27 July 2011), http://www.icc-cpi.int/iccdocs/doc/doc1099329.pdf; and ICC Pre-Trial Chamber I, Warrant

of Arrest for Muammar Mohammed Abu Minyar Gdaffi (27 June 2011), http://www.icc-

cpi.int/iccdocs/doc/doc1099321.pdf.

CRPD Working Paper No. 38

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like that... We will prove to the world that we are a civilised people with a fair justice system. Libya

has its rights and its sovereignty and we will exercise them’ (Chulov 2011).

Their insistence in prosecuting Saif and Senussi in Libya was were generally supported by the

international community as well as the ICC’s Prosecutor (Kersten 2014b). Consequently, following

the end of the war, the new government in Tripoli challenged the admissibility of the ICC’s cases

of Abdullah al-Senussi and Saif al-Islam Gaddafi. On 1 May 2012, Libya filed an admissibility

challenge with the ICC regarding the case of Saif and, on 2 April 2013, Libya filed a similar

admissibility challenge regarding the case of Senussi. The new Libyan authorities argued that,

because they were actively investigating and able to prosecute Saif and Senussi, under the

principle of complementarity underpinning the Court, the ICC had an obligation to allow the state

to prosecute both domestically.7

Senussi entered into the detention of the Libyan government following his surrender from

Mauritania in September 2012 and criminal proceedings against the former intelligence chief were

subsequently initiated. Satisfied with Libya’s investigation and prosecution of Senussi, Judges in

ICC Pre-Trial Chamber I ruled that the case against Senussi was inadmissible before the ICC.8

In the case of Saif, Libya was unable to replicate its success. As of writing, the son of the former

leader continues to be in the detention of a Zintani militia group since his capture in November

2011. Libya’s failure to gain custody of Saif ensured that its admissibility challenge at the ICC

failed. On 31 May 2013, ICC judges ruled that Saif’s case was thus admissible before the Court

since Libya was unable to prosecute Saif so long as he remained outside the custody of the

central authorities.9

At the same time, domestic proceedings against both Saif al-Islam Gaddafi, Abdullah al-Senussi,

and other senior officials from the Gaddafi regime have been initiated in Libya. It is important to

7 See Application on Behalf of the Government of Libya Pursuant to Article 19 of the Rome Statute (1 May

2012), p.3.

8 ICC Pre-Trial Chamber I, Decision on the Admissibility of the Case Against Abdullah al-Senussi, ICC-

01/11-01/11-466-Red (11 October 2013).

9 ICC Pre-Trial Chamber I, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi, ICC-

01/11-01/11-344-Red (31 May 2013), pp. 84–85.

CRPD Working Paper No. 38

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note, here, that the ICC is restricted, by Security Council Resolution 1970, to only investigating

crimes committed in Libya since 15 February 2011 (UNSC 2011c). However, many of the crimes

committed by members of the Gaddafi regime, including the Abu Salim Massacre of 1996, pertain

to events prior to 2011. Still, the proceedings have been besieged by consistent delays. Moreover,

as a result of his continued detention in Zintan, Saif al-Islam Gaddafi has only appeared in court

via video-link (Stephen, 2014). One of the few public reports of the proceedings noted that the

trials of former senior regime officials will conclude on 20 May 2015. Tellingly, however, it also

added that the proceedings were shrouded in secrecy and controversy:

The trial of up to 39 defendants, including former security chief Abdullah Al-Senussi and

Qaddafi’s son Saif Al-Islam, has been going on since April last year, but remains shrouded

in secrecy. Nobody is even sure how many of the defendants are actually on trial, with

numbers of those present in recent hearings fluctuating between 23 to 36. No figure was

given for those at Sunday’s hearing (Libya Herald 2015).

Moreover, in a country that continues to be divided by inter-militia political violence, the country’s

judiciary faces major difficulties. A number of lawyers and judges have been assassinated. This

has had a predictable ‘chilling effect’ in terms of lawyers being unwilling to represent former

Gaddafi officials. Because of the lack of transparency in the legal proceedings, it is impossible to

say whether fair trial standards and due process have been upheld. However, some groups have

consistently highlighted what they view as violations of due process during the trials (Human

Rights Watch 2014) and pointed out that thousands of detainees remain in detention without

charges—some in facilities outside of the control of central authorities (ICG 2013: 4).

2.3 A Stolen Chance: Sharing Justice

While the debate on criminal justice has focused on where Saif and Senussi should be

prosecuted, the polarizing battle over the legal fate of the two former Gaddafi officials obfuscated

an option that could have better furthered the goals of achieving transitional justice: the

sequencing of trials between Libya and the Court. This option, however, was not sufficiently

explored, leaving the pursuit and narrative of one-sided post-conflict justice in Libya unchallenged.

CRPD Working Paper No. 38

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During their 2011 November meeting, the Prosecutor suggested that the ICC and the NTC could

sequence prosecutions.10 Sequencing, envisioned under Article 94 of the Rome Statute, would

have entailed Libya trying Saif and Senussi and subsequently transferring them to the ICC to be

tried over the alleged crimes outlined in their indictment (or vice versa) (Stahn 2012). The

sequencing of trials could have been ‘settled on a negotiated basis, i.e. through consultation and

agreement’ (Stahn 2012: 340). Rather than working under tremendous pressure and the weight

of heavy, perhaps impossible, expectations, a trial at the ICC would have given time for Libya to

stabilize the country and build an independent judiciary capable of subsequently trying Saif and

Senussi domestically for crimes beyond the ICC's warrant against them (Robertson 2011).

Moreover, sequencing could have ensured that alleged crimes committed before and after 15

February 2011 were investigated and prosecuted. However, sequencing was apparently ignored

after the NTC rejected it as a feasible compromise.

There is no doubt that neither a sequencing of trials was a risk-free option. In order to effectively

sequence the trials, Libya's use of the death penalty would have to have been addressed.

Nevertheless, sequencing was a real option which could foreseeably have avoided the current

and precarious status of the cases against Saif and Senussi—and contributed effectively towards

to goals of achieving justice and rebuilding state institutions. Unfortunately, sequencing of the

trials was not sufficiently explored. While the Libyan government has sought the ICC’s approval

to prosecute Saif and Senussi, the lack of interest in compromise solutions has allowed the post-

conflict narrative of purging and punishing anyone associated with the Gaddafi regime to

consolidate—and flourish.

2.4 Militia and Opposition Crimes

In addition to regime officials, there have also been calls for the ICC to prosecute rebel crimes

allegedly perpetrated during (and since) the civil war. In 2012, the International Commission of

Inquiry (2012: 197) on Libya, established up by the UN Human Rights Council on 25 February

2011, concluded that ‘war crimes and crimes against humanity were committed by rebels, or

10 ICC Office of the Prosecutor, Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed

Abu Minyar Gadadfi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (16 May 2011), http://www.icc-

cpi.int/iccdocs/doc/doc1073503.pdf.

CRPD Working Paper No. 38

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thuwar, and that breaches of international human rights law continue to occur in a climate of

impunity.’ Numerous observers have also decried the forced expulsion of the city of Tawergha by

the Misratan rebels in an act of apparent retaliation for supporting the Gaddafi regime. Kevin Jon

Heller (forthcoming) has argued that ‘It is at least arguable that the Misratan thuwar committed

genocide against the Tawerghans.’ His argument is supported by evidence, cited in the

International Commission of Inquiry on Libya’s report of March 2012 (p. 130), that the Misratan

rebels declared that Tawergha deserved ‘to be wiped off the face of the planet.’ The Commission

(p. 13) added that “’The Misrata thuwar have killed, arbitrarily arrested and tortured Tawerghans

across Libya.’ Despite these allegations, the ICC’s Office of the Prosecutor has chosen not to

pursue arrest warrants for opposition or rebel combatants. As discussed in greater depth below,

rebel and opposition combatants have enjoyed immunity from prosecution for crimes committed

during the civil war.

Additional ICC action remains possible. In July 2014, Libyan officials requested another

intervention by the ICC, this time with the aim of investigating renewed violence between militias

and, specifically, the destruction of civilian infrastructure in Tripoli (Ali 2014; Kersten 2014a).

During briefings to the United Nations Security Council, current ICC Chief Prosecutor Fatou

Bensouda has stated that her office continues to investigate alleged perpetrators from Libya who

currently reside outside of the country.11 More recently, Bensouda has informed the Security

Council that her office continues to investigate alleged acts of violence committed by members of

the Islamic State (and, presumably, former opposition figures now allied to the Islamic State).12

11 See Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, in Relation to the

Escalating Violence in the Situation in Libya, International Criminal Court, Office of the Prosecutor (25 July

2014), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/pages/otp-

statement-25-07-2014.aspx.

12 See ICC Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR

1970 (2011) (12 May 2015), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/

press%20releases/Pages/otp-stat-12-05-

2015.aspx?utm_source=CICC+Newsletters&utm_campaign=e3562ab0bf-

5_16_15_GlobalJustice_Weekly&utm_medium=email&utm_term=0_68 df9c5182-e3562ab0bf-

356520589&ct=t%285_16_15_GlobalJustice_Weekly%29.

CRPD Working Paper No. 38

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To date, nothing has materialized from the Court’s continued investigations, leaving some groups

frustrated with what they view as the resultant immunity gap. Human Rights Watch (2015), for

example, has stated that: ‘Given the Libyan authorities’ inability to rein in these abuses, much

less prosecute those responsible, it’s time for the ICC prosecutor to expand her investigations.’

Today, it is common to hear Libya described as ‘lawless’ (Chothia 2014). In addition to former

regime officials, human rights advocates have been assassinated (Hilsum 2014). Torture and

arbitrary detention by various militias is common-place and, according to the ICG, Libya’s ‘trial by

error’ approach to post-conflict justice has triggered ‘more grievances, further undermining

confidence in the state’ (ICG 2013). Rebuilding the state and building peace after decades of

Gaddafi rule has proven remarkably difficult and has been undermined by the continued political

prominence of militias and criminal networks (Shaw and Mangan 2014). This has only been

compounded by the lack of accountability for opposition and militia crimes as well as secretive

domestic criminal justice aimed solely at the vanquished.

3. Libya’s Amnesty Law: Selective Immunity and Impunity

Amnesties can be distinguished on a number of levels: whether they are official or de facto, which

types of actors they apply to, and what crimes they cover (Mallinder 2008). Historically, amnesty

laws have been granted as a means to secure political transitions. As such, their provision may

be seen as ‘necessary evils’ (Freeman 2009), a means to ensure a negotiated settlement, or a

means for mediators to offer guarantees against prosecution in exchange for a cessation of

hostilities, giving up power, and/or participation in a peace process (Snyder and Vinjamuri 2003–

4; Apuuli 2005). In other instances, amnesties are granted by a victorious party as ‘self-

amnesties,’ ensuring that a victorious party’s members and supporters have protection from

prosecution (Bakker 2005; Crenzel 2008). In yet other cases, amnesties may be granted as a

condition or in exchange for participation in other transitional justice processes. The South African

Truth and Reconciliation Commission, for example, was able to offer immunity from prosecution

to Apartheid perpetrators in exchange for the genuine testimony of Apartheid-era perpetrators

(Mamdani 2002).

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3.1 Libya’s Blanket Self-Amnesty

Passed in May 2012, Law 38 On Some Procedures for the Transitional Period granted a blanket,

self-amnesty for any ‘military, security or civil actions dictated by the February 17 Revolution that

were performed by revolutionaries with the goal of promoting or protecting the revolution’ (Human

Rights Watch 2012a). While Law 35 ensures that crimes such as torture and rape are excluded

from the amnesty, other crimes such as murder and forced displacement are not explicitly omitted

from the law (Human Rights Watch 2012b). While subsequent revisions to Law 38 may limit

impunity for the thuwar, in practice, all rebel crimes have been amnestied (Wierda 2015: 169).

The justification and reasoning behind Law 38 had little to do with building or consolidating peace.

Instead, as the Libya Working Group (2012: 11) observed, the NTC’s laws ‘were not just in the

public interest but rather served the interests of other groups (such as protecting members of the

NTC from future prosecution and appeasing militia groups).’ The implications of Law 38 have

likewise been evident. Libya’s blanket amnesty has entrenched selective transitional justice and

granted immunity to the country’s thuwar. As the International Crisis Group (2013: 28–29) noted

in a report on Libya’s judiciary:

The NTC in effect gave legal sanction to impunity in May 2012 when it amnestied those who

had committed crimes—including murder and forced displacement—during the uprising.

The broader impression that action taken in defence of the new order is de facto legitimate

has emboldened armed groups, many of whom justify ongoing illegal activity as necessary

to safeguard the ‘17 February revolution’.

The perpetrators of a host of atrocities and international crimes have been shielded from

prosecution under the blanket of Law 38. The forced expulsion of the entire population of

Tawergha by Misrata rebels in August 2011 appears unlikely to be investigated or prosecuted by

Libyan authorities. This is particularly problematic given evidence that the treatment of citizens of

Tawergha may amount to ethnic cleansing and arguably even genocide (Heller forthcoming: 43).

The UN Commission of Inquiry on Libya (2012: para. 63) concluded that: ‘The Misrata thuwar

have killed, arbitrarily arrested and tortured Tawerghans across Libya. The destruction of

Tawergha has been done to render it uninhabitable.’13 In addition, the Commission (2012: para.

13 See also Kafala (2011).

CRPD Working Paper No. 38

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810) ‘concluded that war crimes and crimes against humanity were committed by thuwar and that

breaches of international human rights law continue to occur in a climate of impunity.’ In response,

some groups increased their calls on the ICC to investigate and potentially prosecute Libyan

militia leaders. Following Law 38’s passage, Richard Dicker of Human Rights Watch, for example,

argued that ‘With the NTC now openly trying to shield militia leaders from justice, it falls to the

ICC prosecutor to vigorously examine these crimes’ (Human Rights Watch 2012c). However,

despite periodic suggestions that the OTP may open an investigation into the events in Tawergha

(UN News Centre 2012) and a declaration by Moreno-Ocampo that Law 38 was not binding on

the Court and could not prevent an investigation or prosecution by the ICC (UN 2012), there is no

evidence that such action is forthcoming or that the Court is applying pressure on Libya to conduct

its own investigations into opposition crimes. Indeed, in 2012 the UN Commission of Inquiry on

Libya (p. 10) stated that it is ‘deeply concerned that no independent investigations or prosecutions

appear to have been instigated into killings committed by thuwar.’

Unlike many amnesties, Law 38 was not a measure passed in order to consolidate a peace

process or a process of building peace. Instead, as a blanket amnesty passed to protect the

interests of opposition groups and shield perpetrators of serious human rights violations from

prosecution, the effect of Law 38 remains the entrenchment of one-sided justice, impunity, and

the authority of militias. The cost has been plain: the creation of a culture of one-sided impunity

that fuels violence and undermines the country’s peaceful transition.

3.2 Political Isolation14

In May 2013, Libya’s General National Congress (GNC) overwhelmingly passed the Political

Isolation Law (PIL). The PIL represented a far-reaching attempt to prevent individuals associated

with the regime of Muammar Gaddafi from holding public office during and after the country’s

transition. But, with the amnesty law and retributive trial justice, the PIL was not integrated or

associated with a peace or peacebuilding process. On the contrary, the law fit a precarious pattern

of post-conflict accountability in Libya of vengeance and one-sided justice aimed at those

associated with the defeated regime. As such, it has fuelled rather than reconciled divisions within

the country.

14 A shorter version of this analysis appears in an essay for the Middle East Institute; See Kersten (2014d).

CRPD Working Paper No. 38

16

3.3 Lustration as Transitional Justice

At its core, Libya’s PIL is a lustration law. Historically, such laws have been a common tool in the

pursuit of transitional justice. Broadly speaking, lustration is a means of vetting citizens in order

to discern whether or not they can—or cannot—hold public office on the basis of their prior

relationship with a delegitimized and defeated regime (Ellis 1996; David 2003, 2011; Horne and

Levi 2003; Mayer-Rieckh and de Greiff 2007). Contemporary history speaks to various attempts

to ensure that individuals of defeated regimes were excluded from the institutions of transitional

society and governance.

In the twentieth century, exclusion by extermination of opponents shifted to exclusion through

legal and political means. The results have been mixed. For example, following WWII, the process

of de-Nazification sought to expel and subsequently prohibit former Nazi figures from political,

cultural, and social positions—albeit with mixed results. The passage of official and legally

sanctioned lustration laws as a mechanism of transitional justice is typically attributed to the

experience of post-communist states in Eastern Europe. After the collapse of communist rule,

states such as Poland and Czechoslovakia instituted lustration policies to prevent former

communists from holding political office (David 2011). More recently, the process of De-

Baathification in Iraq ensured that individuals associated with Saddam Husseins Baath party were

purged from public office leading, counter-intuitively, to intensified sectarian violence (Sissons and

Al-Saiedi 2013: 1).

One determinant of whether a lustration law is deemed legitimate and whether it contributes

positively towards a peaceful political transition pertains to the persons and positions it covers. In

his typical eloquence, former Czechoslovakian president Václav Havel, whose own government

invoked lustration laws following the conclusion of communist rule, observed in 1993 that

lustration could not simply be a vengeful purge of the vanquished by the victors:

It is important to find the right balance, the right approach, one that would be humane and

civilized, but would not try to escape from the past. We have to try to face our own past, to

name it, to draw conclusions from it, and to bring it before the bar of justice. Yet we must do

this honestly, and with caution, generosity, and imagination. There should be a place for

forgiveness wherever there is confession of guilt and repentance (Michnik and Havel 1993:

22–25).

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Lustration is a controversial mechanism for achieving post-conflict justice (Kersten 2014c). But

the desire amongst citizens in transitional states to exclude senior officials from holding power is

also understandable. The dilemma at the core of any lustration law is how far to go—how

restrictive or broad the law should be in its application and thus who should be caught in its net.

3.4 Lustration in Libya

In principle, lustration has generally been viewed positively amongst Libyans, although many

preferred a more restrictive law than that which the law ultimately encompassed (National

Democratic Institute 2013: 25). The reason for their support is clear: lustration and political vetting

can act as a necessary, if insufficient, measure to consolidate the trust of citizens in democratic

change and institutional reform. Indeed, as one observer of the PIL wrote: ‘such a move seems

natural enough: Why have a revolution at all if you allow the agents of the old regime to slink back

to their posts?’ (Eljarh 2015). In this context, it is notable that international and local human rights

groups did not necessarily view the PIL as being, in and of itself, illegitimate. Rather, rights groups

argued instead that the PIL should not be too vague so as to invite manipulation, nor should it be

drafted in a manner as to violate human rights (Human Rights Watch 2013a, 2013b; Lawyers for

Justice in Libya 2013). Faced with growing instability and pressure from militias, the Libyan

government did not—or perhaps could not—heed their calls.

It is important to recall that Libya’s revolution was fuelled—and on many levels led—by defectors

of the Gaddafi regime. Amongst others, Mustafa Abdul Jalil (a former Minister of Justice under

Gaddafi), Mahmoud Jibril (former head of the National Planning Council of Libya and of the

National Economic Development Board of Libya), and Mohmamed Magarief (a former

ambassador to India), all defected from the Gaddafi regime and subsequently played leading

roles in boosting the revolution’s and the rebels’ political legitimacy. But the PIL did not take into

account whether potential targets had previously defected or whether they played a role in

toppling the Gaddafi regime. As Mohamed Eljarh (2013a) observed: ‘The isolation law effectively

places Magariaf [sic], Jibril, and Abdul Jalil in the same category as those who sided with Qaddafi

in his war against the Libyan people.’15

15 See also Fick (2013) and Mohamed (2013).

CRPD Working Paper No. 38

18

So why did the General National Congress pass a law which was widely condemned as an affront

to Libya’s transition and human rights? The reason lies in the political pressure applied by the

country’s powerful militias, the thuwar. As suggested above, since the end of the civil war, Libya

has been unable to reign in various regional militias, many of which have, in an ever-changing

jigsaw of political allegiances, acted as a law unto themselves (Amnesty International 2012a,

2012b), challenging and undermining the Libyan government’s capacity to exert central authority

over key cities and regions (Pack and Barfi 2012). Following the conflict, ‘militias that had taken

up arms against the former regime […] held on to them to fill the security vacuum after it collapsed

accumulated weapons and consolidated control over entire neighbourhoods and areas’ (ICG

2013: 21). For months, a number of militias (including the powerful Misrata thuwar) pushed

aggressively—and often violently—to get the PIL passed, unleashing public demonstrations and

a number of blockades in an attempt to blackmail the GNC into passing the law. Also vocal were

Islamist political parties such as the Justice and Construction Party, the Libyan wing of Muslim

Brotherhood. Because these parties were marginalized and excluded from positions of political

power under the Gaddafi regime, they could not be targeted by the PIL and therefore stood to

benefit the most from the Political Isolation Law’s passage and broad application (Amirah-

Fernández 2013). The PIL held the promise of targeting their political opponents, many of whom

had worked within the Gaddafi regime, often as reformers, before working to undermine it. These

groups maintained that the government had to be purged of virtually anyone and everyone who

had ties to the previous regime. As the GNC was debating the merits and specifics of the PIL, the

militias stormed and took control over the Foreign and Justice ministries in Tripoli, demanding that

the bill be passed (Jawad 2013).

In the midst of the battle over the PIL, one observer noted that: ‘A battle is under way between

two forces in Libya. The government is striving to establish the rule of law, while the militias,

clinging to revolutionary legitimacy, want things done their own way, with general disregard for the

law. This is the core issue. Everything else is secondary’ (Eljarh, 2013b). In its weak position,

however, the government could hardly forestall the militia’s demands. Despite former Prime

Minister Ali Zeidan’s proclamation that ‘we will not surrender to anyone or bend to anyone and

no-one can twist our arm’ (Jawad 2013), the militias successfully ensured that the law was passed

on 5 May 2013. In its rushed and final form, the law is incredibly broad and unspecific. Rather

than targeting individuals for specific acts or crimes, the law is aimed at a wide array of public

positions and posts. Indeed, it was seemingly aimed at anyone associated with the Gaddafi

regime and not simply those who were complicit with, or responsible form Gaddafi-era corruption

CRPD Working Paper No. 38

19

and crimes (Libya Herald 2013). Foreseeing their political demise, some respected Libyan officials

stepped down from public posts. In an indication of the extent of the law’s reach, its first ‘victim’

was GNC president Magarief who had been Gaddafi’s ambassador to India until his defection in

1980, after which he became a prominent opposition figure in exile. Thirty years of work to topple

the regime could not save him.

Almost two years after its initial passage, a new governing authority, the House of Representatives

(HoR), voted to suspend the PIL (Xinhua News Agency 2015). However, the HoR, whilst

recognized by the international community as the legitimate government of Libya, revoked the

PIL without the concomitant support of the predominantly Islamist-backed GNC which retains

control of Tripoli. As a result, the implications of revoking the PIL remain unclear and the

suspension of a law that entrenched divides and marginalized communities within Libya once

again highlighted political differences within the country.

It is misleading to suggest that Libya suffers from a climate or culture of total post-conflict impunity.

Rather, since the conclusion of the Libyan Revolution and civil war, the country has suffered from

selective impunity. This is clearly demonstrated by Libya’s decision to adopt Political Isolation

Law. The law as well as the violent manner in which pro-PIL militias guaranteed its passage is

symptomatic of Libya’s post-conflict narrative of ridding the state of anyone affiliated with

Gadadfi—even those who were instrumental in guaranteeing the opposition’s victory in the civil

war. Insofar as the PIL constituted a transitional justice mechanism, it was certainly not one which

was adopted in order to consolidate peace or contribute to peacebuilding.

4. Peacebuilding and Transitional Justice in Libya

What does the above analysis tell us about the pursuit of peacebuilding and transitional justice?

Most notably, rather than contributing to respect for human rights, the rule of law, or the

consolidation of peace and stability, the use of retributive trial justice, amnesty, and lustration in

Libya have elevated and emboldened the country’s militias. As Marieke Wierda (2015: 174) writes,

generally, ‘Transitional justice in Libya has emphasised political isolation, and trial and

punishment of former regime figures,’ whilst privileging ‘revolutionaries and martyrs’ in a manner

that has ‘risked exacerbating Libyan’s divisions and [which] will make it more difficult to forget

national unity.’ Instead of complementing a process of post-conflict peacebuilding, the experience

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20

of transitional justice in Libya serves as a stark warning for how justice and accountability can

exacerbate the very political violence that makes peace and peacebuilding necessary.

As noted at the outset of this paper, warring factions are now engaged in UN-brokered peace

negotiations. While it remains unclear whether the parties will include questions of justice and

accountability, the above analysis points to the need to integrate future mechanisms of transitional

justice into a broader peacebuilding process in the country. The current peace negotiations can

thus be seen as an opportunity to negotiate, in collaboration with the international community, a

coherent programme of transitional justice that works in tandem with a peacebuilding programme.

Still, trying to do everything—retributive trial justice, establishing the truth, issuing conditional

amnesties, and vetting former officials, and creating conditions for the consolidation of peace and

democracy—may be simply be unfeasible. Here it is important to note that future transitional

justice in Libya will now have the added burden of needing to cover not only those crimes

committed during the Gaddafi’s rule and the civil war, but also those committed since 2011 and

those that continue to be perpetrated. In the short-to-medium term, it may be necessary to

consider a more modest approach to transitional justice. After four decades of Gaddafi rule and

in the wake of current violence, this will require a focus on institution building and fact-finding.16

In other words, meaningful transitional justice that contributes positively to the consolidation of

peace may be difficult to achieve until there is a lasting cessation of hostilities, militias are

decommissioned and their members go through a programme of demobilization and

disarmament. Transitional justice before a real transition is in place, as the Libyan experience

today suggests, may have the effect of perpetuating violence and selective impunity.

In 2012, the UN Support Mission in Libya boldly declared that transitional justice was a ‘foundation

for a new Libya,’ and that ‘a transitional justice strategy can contribute to defining how Libyan

society will go forward, and lay the foundations for a new democratic society.’ It is, however,

important not to create unrealistic expectations. There are no guarantees with transitional justice.

Transitional justice is no panacea for states emerging from periods of political violence. If

16 This argument has also been made by Marieke Wierda (2015: 174) who writes: ‘Building legitimate state

institutions to prevent future violations may the be most important long-term transitional justice goal for

Libya.’ This also has some resonance with Roland Paris’ ‘institutionalization before liberalization’ critique of

peacebuilding; see Paris (2004) and Sriram (2007).

CRPD Working Paper No. 38

21

anything, transitional justice is a risky and very inexact science. However, when implemented with

sufficient political will and in a coherent peacebuilding process, transitional justice can have the

potential to contribute to the consolidation democratic transitions and increased respect for human

rights. Whether this potential is realized in Libya remains to be seen.

CRPD Working Paper No. 38

22

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