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Ensuring Justice in Transitional Libya

JURIST Guest Columnists Edsel Tupaz of Tupaz & Associates and Daniel Wagner of Country Risk Solutions say that the transitional government of Libya must work to foster the rule of law and justice through developing its domestic court systems...

In an August article, International Justice and Post-Conflict Reconstruction in Libya, it was suggested that the interim government in Tripoli ought to pick and choose among what might strike the international community as "best practices" in the array of transitional justice options, from "hybrid courts" to "truth commissions," if not deploying the good offices of the very International Criminal Court (ICC) itself. In fact, ICC Chief Prosecutor Luis Moreno-Ocampo announced that the ICC has been engaged in "indirect negotiations" with Saif al-Islam Gaddafi, the slain leader's son, for possible surrender and trial. If the new Libya wishes to gain legitimacy among its people, whose associations still run along tribal lines, as well as the respect of the international community and multilateral donor support, its transitional justice mechanisms ought to be, for the most part, homegrown. For one, the ICC has no enforcement powers on its own and must rely, ultimately, on domestic mechanisms to make its legal power felt on the ground. If Libya wishes to deliver "interim" or "transitional" justice, and deliver it should very quickly, the interim government should set up the courts, even if makeshift, just to get the justice system going.

Amidst the rising vigilantism and score-settling between and among ex-militias of the National Transitional Council (NTC), on one hand, and former Gaddafi supporters on the other, the NTC and its fighting units seem hesitant, if not dismissive, of decommissioning its weapons cache. "Most of the violations are taking place because we don't have laws to carry out justice," announced Jalal el-Gallal, speaking for the NTC. It goes without saying that without laws, there can be no court judgment. How then should the Tripoli government deal with transitional governance? It seems that all energies are focused on elections and constitution-making (as discussed below), but not the justice system. Libya is in a stage which developmentalists call "transitional constitutionalism," which is essentially constitutional design and constitutional negotiation with the "clean break" model (e.g., post-war Germany and Japan) on one end of the continuum; the incremental model (e.g., Central and Eastern Europe) in the middle; and, on the other end, the multi-staged South African model. Libya seems to have chosen to make a clean cut. Distinct to "transitional constitutionalism" is "transitional justice," which dwells in the relationship between criminal justice, human rights and international humanitarian law under the Geneva and Hague Conventions in transitional and post-conflict settings. Setting up transitional justice mechanisms will no doubt implicate constitutional questions, theory and design. Transitional justice mechanisms, incorporating "best practices," can range from post-conflict "tools" and institutional agents promoting deterrence and accountability, material and psychological restoration, truth-telling and revision of normative histories, to grander events of national reconciliation. In a word or two, transitional justice is strongly associated with courts, while transitional constitutionalism is strongly associated with assemblies followed by popular ratification. Scholarship tends to classify transitional justice and transitional constitutionalism under the broader heading of "transitional jurisprudence" because the transformative and constitutive properties of criminal sanction and the manner of exercising such sanctioning powers can cause shifts in one's normative understandings of legitimacy, including constitutional legitimacy and governmental respectworthy-ness.

Why make the distinction between "constitutionalism" viewed generically and "transitional constitutionalism?" Unlike ordinary constitution-making or constitutional amendment/revision processes, transitional constitutionalism is a field unto its own owing to its merger with international negotiation, theory and practice, as well as the sense of urgency the subject itself brings into being: all constitutional negotiators and designers must have the skill to act in haste. In the post-conflict setting, the sense of urgency for scrupulous constitution-making is at its highest ebb. Constitutional designers in post-conflict reconstruction will scavenge for what they perceive to be "best practices" of constitutional design, and may oftentimes be tempted to haphazardly cut-and-paste sundry texts, all widely available online, armed without any semblance of critical historical hindsight each constitutional provision may implicate.

Libya appears to be headed that way. The newly installed government at Tripoli — so-called "interim" or "transitional" — is turning out to be an Islamist-led government armed with a draft constitution declaring, in its very first article, that "Islam is the Religion of the State and the principle source of legislation is Islamic Jurisprudence (Sharia)." The rest of the document tries to assuage its Western readers with guarantees aimed to off-set Article I, such as respect for the rights of non-Muslims, freedom of religious practice, a "democratic" multi-party system, equality before the law (now inclusive of women's rights), basic rights to one's property, education and social security — all following the standardized catalog of basic rights characterizing many liberally-oriented states of mixed religions or ethnic composition.

Not only is the NTC leaving out the possibilities of deploying transitional justice mechanisms like hybrid courts or domestic courts supervised by international actors (much like the way the Extraordinary Chambers in the Courts of Cambodia are set up under a UN treaty), the NTC seems to be placing too much emphasis on constitution-making as opposed to material justice (using the dearth of laws as an excuse, rightly or wrongly). Simply put, there seems to be no justice mechanisms in place. One has yet to see any working institution seeking to provide material, compensatory, retributive, if not even ordinary, criminal justice, in the "new" Libya. In their place are what the international media brand as "summary executions." In fact, "summary" is a misnomer, because this is an operative term implying that some form of due process, no matter how quick or crude, did in fact take place. (Winston Churchill in the aftermath of World War II floated the idea of summary executions for top rank Nazi party leaders, but still an indictment and a hearing of some sort were prerequisites.) In Libya today, clandestine executions seem to be the norm. No amount of normative constitution-drafting and draft-circulation can blot out from the books, or collective memory, Gaddafi's undignified corpse being dragged through the streets, prompting a UN human rights investigation); Gaddafi's bullet-ridden corpse rotting in a malfunctioning meat locker; escalating vigilantism, vandalism, score-settling and emerging tribal warfare between and among towns that were on different sides of the conflict; and a host of clandestine mass executions of unidentified persons everywhere. While the empirical dissonance between the law-in-the-books and the law-in-action can be endemic even in liberal, developed societies, the Libyan disparity between preaching and practice will be an irreconcilable precedent for Libya. (One might say that President Ferdinand Marcos did more damage to the Philippines in his 14-year rule than, say, Gaddafi with Libya. But Marcos's body today, very well preserved, is fully dressed in state garb and diplomatic color, encased in a state-of-the-art glass coffin in his hometown in Ilocos Norte, while his widow Imelda to this day struggles with her decades-old petition to hold a state funeral for the late Filipino dictator.) While still no doubt in its early drafting stages, and depending on which draft you have, Article 28 of the "Draft Constitutional Charter for the Transitional Stage" does call for a popular plebiscite for its ratification. Interesting as well is Article 33, which aims to disqualify members of the NTC from holding office after the end of the transitional period.

In Libya's Post-Conflict Reconstruction: Vengeance or Forgiveness? we pointed out that Libya is straddling the fine line between vengeance and forgiveness. It now seems that the new Libya is on the warpath towards revenge. In redefining its positive constitutional order, will Libya take the path of vengeance, like Iran? Or can it take the path of forgiveness, tolerance, and republican-style secularism much in the way Turkey is known for? Iran's own constitution treats Islamic or Islamist principles to be the only source of law, and makes Iran's faqihs or "jurist-consults" to be the interpreters of Iranian jurisprudence at the exclusion of all others, subject only to the Supreme Leader or velayat-e faqih. Turkey on the other hand is visibly a secular "Republic" whose constitution derives its "sovereignty" from "the people" and that sovereignty resides with the "Turkish Nation," while legislative powers are vested in the Turkish Grand National Assembly, a unicameral parliament. In 2008, Turkey's Constitutional Court declared a legislative measure aimed at lifting the headscarf ban unconstitutional on the ground that the measure was against the fundamental principles of the Turkish constitution. Libya, Iran and Turkey are all comprised of Muslim super-majorities, but along the ideological and constitutional continuum, Libya appears to be backsliding into the absolutism of Iran in stark contrast to all the liberal democratic rhetoric the NTC has deployed since the February revolution. The NTC and the rebels purportedly fought for a new, free Libya, in the name of the "free Libyan people," against this tyranny and 42-year dictatorship — all aspirational slogans no doubt to gain Western support, in the form of NATO airstrikes and money.

There is one more thing which creates common ground between Iran and Libya: oil. Oil is important, because it was oil which enabled Iran's ruling elite to sit comfortably, brimming with confidence, knowing full well that they could all outlive and exhaust the energies of all forms of popular protest in 2008 to 2009. It was oil which assured Iranian leaders that no amount of social unrest would make any significant change in the political or constitutional governance. It may be oil which can tempt Libya to think likewise. It was also oil which in all likelihood pushed the UK and France to take visible leadership in the NATO campaign. As reported in a recent New York Times article, The Scramble for Access to Libya's Oil Wealth Begins, no less than the British Petroleum, Total of France, Repson YPF of Spain, and OMV of Austria, are elbowing their way to grab hold of Libya's capacity to export 1.3 million barrels of oil a day.

Where is NATO today? In contrast to the 26,000-or-so sorties and almost 10,000 strike missions of which NATO can boast, NATO's position in "post-conflict" Libya is bizarrely hands-off, perhaps mindful of the possibilities of falling into overcommitment, or the "debt trap," of the US missions in Afghanistan and Iraq. In light of this fence-sitting, coupled with Russia's recent veto (citing the Libyan experience) of a Western-led UN Security Council resolution seeking to impose economic sanctions against Syria, it seems that the West will let the mess that is now Libya, Tunisia, Egypt, and perhaps Syria, unfold and pile up, leaving the so-called "Arab Spring" to rise and fall according to the whims of internal pressure, if not complete collapse, to the vast Arab Desert that it already is. NATO, like the US, cannot avoid the ancient paradoxical "imperial dilemma" where occupiers holding even the noblest intentions are faced with the same dilemma of their imperial predecessors and colonizers, which is to impose order from without, using all military means necessary, but in the name of the loftiest ends of justice, peace and freedom. In International Justice and Post-Conflict Reconstruction in Libya, we argued that whatever the result of the NTC's crowning of thorns by nation-states, there will be no avoidance of the fact that Libya must move fast from the rule of the tribe to the rule of law. It seems that NATO, like Pontius Pilate, has left Gaddafi to the ruling mob.

Specialized hybrid courts and war crimes tribunals may be the best quick fix for Libya, lest it becomes a failed state. Hybrid courts and their mixed actors can exercise norm-leadership and engage in norm-diffusion between and among state and non-state actors. Much literature depicts the ways in which hybrid courts take part in dialogical democratic deliberation and shared cooperative activity with other political institutions. Though the results can be mixed and do vary from country to country, hybrid courts have been documented to successfully mediate and diffuse ethnic, religious or ideological cleavages in divided societies by sublimating incipiently revolutionary moments into discursive civic activity, by functioning as a kind of intensely media-genic constitutional forum through which democratic consolidation can take place, and by supervising that consolidation. These are rule of law functions going far beyond the typical dispensation of material or retributive justice commonly associated with ordinary courts.

Libyan society today is at a stage which developmentalists call "post-conflict reconstruction." This is far from the case. Libyan communities are now at a critical mass demanding that the new government ought to "move very fast" or "there will be another civil war." What Libya needs today is a specialized, media-genic war crimes court at the core, and along its periphery, ordinary, even if makeshift, courts with civil jurisdiction. Gaddafi's Green Book, which codified his own version of socialism, allowed for state-sanctioned confiscation of property and business throughout his rule, sowing the seeds of social unrest owing to continuing uncertainty of property rights over homes and apartment buildings. The NTC seems dismissive of the problem, reasoning that if the people can wait for 42 years, they can also wait for two or three more months pending the reorganization of government, including its justice system. Libya needs a specialized, strategically targeted court system designed to accelerate lesson-drawing of best practices elsewhere without compromising grassroots legitimacy — not only for the immediate purpose of handing down material justice and trying perpetrators regardless of which side they fought for, but for the greater reason of rule of law norm-building and constitutional-social learning of liberal principles. The list is getting longer: the ECCC (for Khmer Rouge), the Special Tribunal for Lebanon, the Court of Bosnia and Herzegovina, the Special Court for Sierra Leone, the Kosovo Court established under the UN Interim Administration Mission in Kosovo (UNMIK), the Special Panels of the Dili District Court in Timor-Leste, and the great experiment that was the Iraqi Special Tribunal. Even as Luis Moreno-Ocampo makes his pitch for a plea-bargain with Saif al-Islam, there is no avoidance to the fact that there are no domestic judicial mechanisms — a local arrest warrant perhaps — to enforce the voice of the ICC.

As the new Libyan leaders struggle in constitutional drafting, they will make haste in adopting what they conceive to be the best practices of Islam majoritarian states in the East and West. Beyond Turkey, Libya can also look farther into the east to places such as Malaysia, whose governance and society, though Muslim-led, caters to an increasingly heterogeneous population with at least eight languages. Beyond courts, the NTC needs to revisit its case for the "clean break" model it chose, which was post-war Germany and Japan. While the interim government purports to do all it can to disassociate itself from Gaddafi by making that clean break, the text of the interim constitution speaks otherwise. There are other workable models of transitional governance and transitional justice beyond Germany and Japan, such as the incremental model as in central and eastern Europe and the multi-staged South African model. Aiming for less might be a better route, especially for a society equipped with no liberal democratic heritage since Roman times.

Edsel Tupaz is the founder and managing partner of Tupaz & Associates, a public-interest law firm. His expertise lies in comparative constitutional law, trade and development law and court systems design. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He was senior counsel and senior executive assistant of the Philippine Truth Commission created by Philippine President Benigno Aquino III.

Daniel Wagner is the founding CEO of Country Risk Solutions, a cross-border risk consultancy based in Connecticut. He has more than 20 years of experience managing country risk, is an authority on political risk insurance and analysis, and has 15 years of underwriting experience with AIG, the Asian Development Bank (ADB), GE, and the World Bank Group. Wagner's editorials have been published in the International Herald Tribune and the Wall Street Journal. His book, Political Risk Insurance Guide, was published in 1999.

Suggested citation: Edsel Tupaz & Daniel Wagner, Ensuring Justice in Transitional Libya, JURIST - Sidebar, Nov. 10, 2011, http://jurist.org/sidebar/2011/08/edsel-tupaz-post-conflict-libya.php.

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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