States undergoing political transitions often accelerate measures related to transitional justice, which is considered an important part of transitioning from a stage of conflict or authoritarian rule to a stage of peace and democracy. The way in which a society addresses past human rights violations is critical to that society’s ability to achieve sustainable peace and stability. Libya is no exception. The Gaddafi regime fell in October 2011, after an ironfisted 42-year rule that left a legacy of colossal human rights violations. Since then, Libya has hastened to adopt laws of transitional justice, in order to address its brutal past.
There are two primary factors to take into consideration when viewing Libya’s transitional process. The first factor is related to the four-decade duration of Gaddafi’s rule, in which Libya’s expertise and capabilities were channeled to benefit the former regime at the expense of development and the opportunity for a dignified life among the people, accompanied by an abysmal track record of human rights violations. The second factor is concerned with the period of the revolution and its aftermath. In contrast to the transitional path in its neighboring country Tunisia, Libya’s revolution came at a high cost in terms of losses in lives and property, the proliferation of weapons, the security turmoil that followed, and the human rights violations and war crimes under international law.
Moreover, the exceptional situation in Libya has complicated efforts to establish an effective transitional justice system following the revolution. Protests that became violent, armed conflict, and political division have all led to the failure of successive governments to impose national control over the country. Without a strong central government and effective state institutions, Libya was unable to prevent armed groups from filling the political void, seizing control of areas and igniting civil war. Efforts were channeled towards resolving ongoing conflicts and divisions, rather than towards achieving the transition to democracy, which encompasses the establishment of an effective transitional justice system and the building of democratic institutions.
The debate on transitional justice in Libya was raised again amid the 2020 political negotiations, where participants in the first Berlin Conference on Libya underscored the need to strengthen transitional justice institutions. There is a close correlation between transitional justice mechanisms, democratic institutions, and the reconciliation process. In general, transitional justice mechanisms and democratic institutions are tools for reaching peace, while reconciliation ensures stability and sustainable development in society. A society undergoing a transitional phase towards democracy will face institutional failure without transitional justice procedures, as its institutions and executive, legislative, and judicial authorities will be less resilient in facing public economic and political crises, especially without gaining citizens’ trust.
Figures of the old regime running for the presidential elections at the end of last year, 2021, revived discussions on the importance of accountability for perpetrators of grave human rights violations. It also raised several questions about the possibility of holding elections before completing the transitional justice process and achieving national reconciliation. All these questions return to the dialectic of priorities between achieving justice, reconciliation, and the possibility of reaching a political transition that leads to peace in Libya. With no transitional justice to ensure accountability for perpetrators of grave human rights violations in addition to the resulting threat to the legitimacy of the upcoming elections, achieving political transition and sustainable peace seems unfeasible.
Transitional justice can be defined as “the operations and mechanisms related to the reforms of society to understand the legacy of excessive past violations, in order to provide accountability, establish justice, and achieve reconciliation.” Transitional justice is based on a set of elements, the most important of which is accountability for crimes in accordance with international law. Libya has a duty to investigate, criminalize, and penalize crimes in its domestic laws. But the current situation in Libya does not reflect this, due to the absence of a clear legislative policy for transitional justice and the disjointedness of its various laws, undermining potential accountability for those accused of crimes.”
First: Incoherence in the legislative policy of transitional legislative structures
Since the fall of the Gaddafi regime in October 2011, there have been three legislative structures in Libya: the National Transitional Council (2011-2012), the General National Congress (2012-2014/2016), and the House of Representatives (2014-current). These structures, whether appointed like the National Transitional Council, or elected like the National Congress and later the House of Representatives, have issued more than seventeen laws related to transitional justice.
In regards to legislative affairs during the transitional period, it can be observed that there is a condition of legislative excess in relation to transitional justice.
In general, legislation before and after the revolution is distinguished in that – for numerous reasons- it faces the same obstacles, foremost among which is the extent of the legality and legitimacy of the legislative structures that carry out legislative work and issue laws. Legislative work is divided between structures of revolutionary legitimacy, such as the Transitional Council, and structures that are undermined by doubts about the extent of their legality, such as the House of Representatives. Thus, this division has been reflected in legislative policy related to transitional justice; for example, legislation passed by the Interim Transitional Council tends to be in line with the frameworks of revolutionary legitimacy; while legislation passed by legislatures suffering from a crisis in legitimacy, such as the House of Representatives, tend to represent attempts to legitimize their existence or overcome skepticism and doubts in regards to their deficiencies.
The National Transitional Council has issued transitional justice legislation aimed at severing any ties with the former regime and its figures, such as Law no. 37 of 2012 on the criminalization of glorifying the tyrant and insulting the revolution, which was later repealed due to its unconstitutionality.
The Transitional Council has also issued laws related to the establishment of transitional justice: Law no. 17 of 2012 and its revision by Law no. 41 of 2012 and Law no. 35 of 2012 regarding the amnesty of specific crimes, and Law no. 38 of 2012 regarding procedures for the transitional phase. These laws, regardless of their objectives, were issued prematurely, hastily, and confusedly, resulting in selective justice instead of transitional justice. The legislative policy of the Transitional Council, at that time, clearly ignored the violations committed during the revolutionary period, established an exception for all grave violations of human rights, and gave full coverage and immunity to violations committed by revolutionaries, freeing them from any pursuit of accountability or justice for their crimes during the revolution. Article 4 of Law no. 38 of 2012 stated that “there is no punishment for military, security, or civil actions necessitated by the 17th of February revolution, with the aim of achieving or protecting the revolution.” The amnesty law also excluded crimes committed by members of the Gaddafi family, his in-laws, and his aides from the scope of its implementation. This selective policy also included the issue of reparations, with the Transitional Council issuing Law no. 50 of 2012, which codifies discrimination among victims by singling out political prisoners with their own legislation, even though the transitional justice law covers them.
The General National Congress was the first elected legislative structure following the February 2011 revolution. The Congress has attempted to remedy the problems that permeated the National Reconciliation and Transitional Justice Law no. 17, by amendment through the issuance of Law no. 29 of 2013. Regardless of its problems, the 2013 law expanded transitional justice implementation “to cover the events from September 1, 1969 until the end of the transitional period with the election of the Legislative Council according to the constitution.”
The Congress, in response to popular pressure, issued a new law that reflects the overall state of confusion and the absence of a clear legislative policy related to transitional justice, Law no. 17 of 2012. The law meted out a ten-year ban from political and sovereign positions of any figure in Gaddafi’s regime, with the assumption of ties with the regime. This law increased polarization in society and deepened the political and military conflict. Hopes for achieving broad and inclusive justice in Libya were diminished and instead a severe form of political exclusion was introduced, amid a broader political conflict on legitimacy and authority in new Libya.
While the National Congress pursued an exclusionary legislative policy in regards to those affiliated with the pre-revolutionary Gaddafi regime, the House of Representatives pursued a policy of reconciliation, amid political and societal division, and suspicion in regards to the legitimacy of legislation issued by the House of Representatives.The House of Representatives issued a General Amnesty Law no. 6 of 2015, granting amnesty to all Libyans for crimes committed from February 15 to the date of its issuance in September 2015. This amnesty law was met with substantial criticism for being a detailed amnesty law tailored to the interests of some political figures affiliated with the former repressive Gaddafi regime.
Overall, legislation and legislative work after the revolution has become a tool for manipulation and improvisation according to political and ideological whims, due to the absence of a clear legislative policy. The different legislatures since 2011 have also neglected to develop legislation that guarantees transitional justice, instead going to extremes in issuing either conciliatory legislation or its opposite, purifying and punitive legislation. The former excludes from accountability perpetrators of grave violations and crimes according to international law while the latter effectively forfeits any hope for reconciliation.
Second: The impact of floundering legislative policy on accountability for perpetrators of gross human rights violations
Libya had witnessed decades of repression under Gaddafi’s rule, with systematic crimes and violations of human rights. These human rights transgressions did not end with the fall of the Gaddafi regime in October 2011; they persisted during and after the revolution, especially after the political and security situation deteriorated, with conflict spreading across Libya, particularly in the south and west. Human rights violations have proliferated during the armed conflicts across Libya, and are classifiable as serious crimes under international law according to the United Nations’ investigation mission. Nevertheless, all transitional justice laws issued and implemented by successive transitional legislative structures have failed to address these violations, hold those responsible accountable, and provide justice and redress for victims. The incoherence of the legislative policy related to transitional justice, whether it takes a purifying punitive form or a conciliatory form, has resulted in legislation that fails to achieve comprehensive transitional justice, including accountability for gross human rights violations and guarantees of the right to access justice and redress.
Transitional phase legislation should have a clear legal foundation – in the national constitution -that enables it to address the requirements of the transition. Foremost among these requirements is establishing the main pillars of transitional justice, and supporting efforts to achieve the objectives of transitional justice in Libya. Nevertheless, a clear legal foundation is lacking in the articles and amendments of Libya’s constitutional declaration. The absence of a well-defined vision for the transitional phase and transitional justice in particular has resulted in disjointed legislation that is punctured by many loopholes. By way of comparison, the Tunisian Constitution of 2014 provided guarantees for criminal justice in Article 148 by prioritizing accountability over amnesty, to hold accountable those responsible for grave human rights violations.
On the legislative level, the confusion created by the sundry laws issued by three successive legislative structures has resulted in the evasion of accountability for all vying parties to the conflict, whether associated with the state or armed groups and militias, for the crimes committed during and after the 2011 revolution. The legal texts do not fulfill their obligation to establish an integrated and comprehensive transitional justice system that guarantees accountability for serious crimes under international law.
Law no. 38 of 2012 clearly stipulated procedures for the transitional period regarding crimes committed by the revolutionaries, with the aim of achieving or protecting the revolution. The law considered that the acts of revolutionaries for the success of the revolution do not require legal punishment or prosecution. The law thus immunized perpetrators of grave human rights violations against criminal liability. In an attempt to bypass law no. 38 of 2012 and its consequences, the General National Congress issued Law no. 29 of 2013. Although Law no. 29 introduced wider and more comprehensive articles, it remained ambiguous regarding the implementation of its provisions in regards to crimes committed during the revolution and its aftermath. The Libyan House of Representatives later issued Law no. 6 of 2015 regarding general amnesty for Libyans who committed crimes during the revolution.
Whether through their provision of amnesty or through the ambiguity of their articles in regards to crimes committed during and after the revolution, all together the legislation of the post-revolution period has served to bolster pervasive impunity, in contravention of the Libyan state’s obligations to investigate crimes under international law. Amnesty for these crimes is prohibited under international law if (1) it prevents the prosecution of persons who may be responsible for war crimes, genocide, crimes against humanity, or gross violations of human rights; (2) it interferes with victims’ right to effective remedy, including redress; or (3) it restricts the right of victims and communities to know the truth about violations of human rights and humanitarian law.
Under international law, failure to hold accountable those accused of serious crimes violates the right of victims to access justice and effective remedy, according to Article 2 of the International Covenant on Civil and Political Rights. In addition, the failure to investigate and prosecute such violations encourages the establishment of a culture of impunity, and contributes to the recurrence of such violations.
The reason for the failure of transitional justice in Libya lies not only in the vague and incoherent legislative policy, but also in the lack of a broader and more comprehensive framework to address the phenomenon of impunity in the country since 2011. Libya has become one of the largest countries in the world home to pervasive and ever-increasing impunity, resulting from years-long instability and turmoil alongside deteriorating security and political conditions. The overarching political division in 2014 has nurtured a national environment ripe for impunity while threatening the overall viability of the state. State sovereignty over the entirety of its territory is a perquisite for the effective enactment of any legislation, especially transitional justice legislation.
In addition to the legal challenges facing Libya’s judiciary, the negative repercussions of the dominance of militias over the judiciary and the deterioration of the security situation constitute a major obstacle to judicial independence. The Libyan judicial system has been targeted by many acts of violence, death threats, and other forms of intimidation, which pose a threat to the safety of judicial authority personnel, who are at constant risk of assault or attack up to assassination. This threat is further heightened by the inability of security services and governmental judicial police to create a safe environment for the judiciary to function effectively and independently.
The political division and armed conflict in Libya has contributed to a shift in priorities, wherein efforts and attention were focused on resolving unremitting conflicts and divisions instead of achieving democratic transition, inclusive of a transitional justice system and democratic institutions. This in turn has affected the holding of elections, with the emergence of candidates accused of serious crimes under international human rights law.
Achieving national reconciliation in Libya requires an unequivocal application of the accountability principle. This is not only important for victims of human rights violations and their families, but it is also imperative for a society experiencing transition from authoritarian rule to democracy, peace, and stability. It is necessary to implement and activate the obligations related to accountability for those accused of crimes committed before, during, and after the Libyan revolution, as a recognition of the victims as rights holders, and as an opportunity for the legal system to establish justice and order. Accountability would strengthen the rule of law, and contribute to the achievement of transitional justice and national reconciliation.
It is not possible to achieve transitional justice without first having in place a set of conditions, the most important of which are a stable constitutional system, the prioritization of transitional justice, the unification of state institutions, and a national consensus on the importance of transitional justice and its role in establishing sustainable stability and peace.