It is impossible to discuss post-conflict reconstruction in Libya without reference to the issue of transitional justice and crimes that were committed during the conflict period after February 17, 2011. Ian Martin, the Special Representative of the Secretary-General and head of the UN Support Mission in Libya, briefed the UN Security Council (UNSC) in March 2012 on transitional justice, enhancing the Libyan legal system and its accountability capacity catapulting it to the top of the agenda to mobilize international assistance. The post-conflict reconstruction process in Libya has reignited an essential debate among transitional justice advocates: what role could the International Criminal Court (ICC) play to foster criminal justice development and increase the capacity of the Libyan justice system to prosecute its most serious crimes?
Muammar Gaddafi's four decades of autocratic rule were marred by widespread human rights abuse that undermined the foundations of Libya's political economy — including basic institutions of governance, economic development and the rule of law. The survival of the system heavily relied on brutal repression of any opposition via a network of intelligence agencies who acted above the law with complete impunity. Those who dared to criticize the political system did so with the utmost care and lived under constant threats and harassment. It is against this background of repression of rights that one has to assess the call for rule of law and justice reforms. Members of the judiciary played a significant role in the revolution — judicial independence was one of the main demands of the February 2011 revolution.
The Libyan judicial system is not functioning effectively and suffers from the legacies of its past — it was used as a tool of repression. While Libyan law provides for an independent judiciary, it was not independent in practice. Today, all human rights organizations seem to acknowledge that the general situation in Libya remains fluid. The lack of security, reports of widespread abuse of internally displaced people and the human rights violations of detainees are particularly worrying to the human rights community.
In February 2012, Amnesty International (AI) released a report titled "Militias threaten hopes for new Libya," which details ongoing and widespread arbitrary detention, unauthorized interrogations, coerced confessions and torture. Similarly, the International Commission of Inquiry on Libya, which was set up by the UN to examine alleged crimes committed during the conflict, issued its own report, declaring that:
Breaches of international human rights law continue to occur in a climate of impunity ... forces loyal to Libyan leader Muammar Gaddafi carried out mass executions and tortured suspected regime opponents, amounting to crimes against humanity.
Those who argue against the Court's intervention in Libya virtually never acknowledge that Libya was referred to the ICC by the UNSC. In this context, it is worth noting that with Resolution 1970, the country remains under the jurisdiction of the ICC. While the ICC has temporal jurisdiction in the country and could open investigations, the question that comes to mind is: how can the ICC inspire the criminal justice reform process in Libya?
Recently, there has been some movement on establishing a process of transitional justice. The National Transitional Council (NTC) recently created a Fact-Finding and Reconciliation Commission and adopted laws related to transitional justice. The Libyan criminal justice system must meet these new challenges based on a changed international environment. The country's police, prosecutors and legal framework are now called upon to become scrupulous actors in observing evolving standards of human rights and accountability. Libya must reform its criminal justice system in line with the Rome Statute to pave the way for international cooperation on criminal matters. It must also affirm its commitment to upholding the rule of law and universal human rights. Once Libya's new legislature is in place, ratification of international human rights law conventions, and accession to the ICC, would lend legitimacy to the country's commitment for reform.
Libya should take advantage of the ICC's robust governing statute to inspire its own national legal framework and repeal the special laws that were put in force during the reign of Gaddafi. The country's new authorities are now facing the need to strengthen the judicial structure, including building the capacities of judges, ousting corrupt or incompetent judges, computerizing the information system and processing existing files.
Based on my discussions, some of the immediate steps that Arab and international analysts have converged on for enhancing the Libyan legal system and its accountability capacity include:
- Guarantee that the future constitution of Libya incorporates international human rights law;
- Reform laws to bring them into conformity with Libya's obligations under international law;
- Consider the rights of victims in all mechanisms of accountability in accordance with international norms and standards;
- Establish an independent judiciary; and
- Create programs for increasing the number of judicial, police, prison and other officials.
The international community will need to assist Libya in its efforts to establish transitional justice, bearing in mind that some justice mechanisms already exist in Libya, but, also, that there is a shortage of such mechanisms. In this respect, the role of capacity building for civil society organizations cannot be overemphasized, including documentation of human rights violations, protection of victims and witnesses in view of litigation and legislative reform.
Today, the country is one of the many examples of how Middle Eastern and North African societies grapple with balancing the ideals of tradition in national and international law with the imperative of making society more just for its people.
Leila Hanafi works as a regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court, a global network of more than 2,500 civil society organizations in 150 countries advocating for the ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity. She is a graduate of American University and Georgetown University.
Suggested citation: Leila Hanafi, Libya Reform Should Utilize ICC, JURIST - Hotline, May 16, 2012, http://jurist.org/hotline/2012/05/leila-hanafi-libya-ICC.php.
This article was prepared for publication by Leah Kathryn Sell, an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to her at email@example.com.