justice in conflict
It has been a tough go for Libya. Almost two and a half years after the demise of the Gaddafi regime, the country continues to struggle in its ongoing and tumultuous transition. After forty years of autocratic rule, creating a stable, viable and democratic is undoubtedly a tall order. The country faces a host of challenges: the central government is very weak and has had an immensely difficult time creating strong governmental institutions; regional and city-based militias or ‘thuwar’ control key areas of the country; the economy remains vulnerable; assassinations of former regime officials are a regular and disturbing occurrence; and thousands of individuals remain in illegal detention. And while things in Libya may not be quite as bad as tends to be reported (and there has been some good news), the country faces a tough road ahead.
On matters of international and transitional justice, Libya is a fascinating case. Over the past few years, JiC has featured an array of posts on the International Criminal Court’s intervention into Libya and the subsequent battle over where to try the two remaining Libyan ICC indictees: Saif al-Islam Gaddafi and Abdullah al-Senussi. But there have also been other important developments pertaining to transitional justice in Libya. Amongst these are the passage of a blanket amnesty law and a de-Gaddafication law. These have received far less attention here than they deserve. I was thus thrilled by the opportunity to write an article on the latter in greater depth for a project by the Middle East Institute on Pathways to Transitional Justice in the Arab World. My contributionseeks to place Libya’s Political Isolation Law into context and decipher its potential impact on Libyan politics and the pursuit of post-conflict justice. Here’s a snippet:
In May 2013, Libya’s General National Congress (GNC) overwhelmingly passed the Political Isolation Law (PIL). The PIL’s enactment represented a far-reaching attempt to prevent members of the regime of Muammar Qaddafi from holding public office during the country’s transition. But the decision also appeared to fit a precarious pattern of post-conflict accountability in Libya, which has been characterized by acts of vengeance and one-sided justice aimed at anyone associated with the defeated regime. The passage of the law also reflects the current state of political instability in Libya wherein decisions are politically motivated and often forced at the barrel of the gun rather than agreed upon through public consultation and democratic decision-making.At its heart, 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 form of vetting citizens to discern whether or not they can hold public office on the basis of their relationship with a prior, delegitimized, and defeated regime. The idea of purging a vanquished political opponent is as old as the practice of war itself. New regimes require the exclusion of members, groups, and structures that sustained previous orders. In the twentieth century, exclusion by extermination of opponents shifted to exclusion through legal and political means. 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. More recently, the process of de-Ba`thification in Iraq ensured that individuals associated with Saddam Hussein’s Ba`th party were purged from public office. The policy is widely regarded as disastrous, leaving behind it a “bitter legacy” that has “polarized Iraqi politics and contributed to severe instability in the Iraqi military and government.”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. The impetus behind these laws stems directly from the social struggle of societies confronting and grappling with a recent past characterized by human rights violations……But the palpable desire among citizens in transitional states to exclude senior officials from holding power is also understandable. Removing those individuals responsible for autocracy or dictatorship offers a rare opportunity to “turn the page” and guarantee that the old cast of characters will not morph into the state’s new leadership. Consequently, lustration and political vetting can act as a necessary, if insufficient, measure to consolidate the trust of citizens in democratic change and institutional reform. 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. Indeed, as it became clear that Libya would proceed with a lustration law in some form, rights groups refused to criticize the PIL as a whole, arguing instead that it should not be too vague or violate human rights. However, the Libyan government did not―or perhaps could not―heed their calls.It is important to recall that Libya’s revolution was fueled―and on many levels led―by defectors of the Qaddafi regime. Among others, Mustafa Abdel-Jalil (a former minister of justice under Qaddafi), Mahmoud Jibril (former head of the National Planning Council of Libya and of the National Economic Development Board of Libya) and Mohammed Magarief (a former ambassador to India), all defected from the Qaddafi 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 Qaddafi regime. As Mohamed Eljarh observed, “[t]he isolation law effectively places Magariaf [sic], Jibril, and Abdul Jalil [sic] in the same category as those who sided with Qaddafi in his war against the Libyan people.” Numerous Libyan officials agree, including a representative of the country to the UN who stated his fear that the PIL “will deprive state institutions from some experienced and competent persons, who would be very difficult to replace……It is misleading to suggest that Libya suffers from a climate or culture of total post-conflict impunity. Rather, since the conclusion of the revolution and civil war, the country has suffered from selective impunity. This is clearly demonstrated by Libya’s decision to embrace the PIL. The law and 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 Qaddafi―even those who were instrumental in guaranteeing the rebels’ and the National Transitional Council’s victory in the civil war. But the PIL is as much a political tool to discredit and disqualify certain political actors as it is a mechanism of transitional justice.When focused, properly considered, and democratically implemented, lustration laws can help mark a new chapter for post-conflict and post-atrocity societies. For many Libyans, however, the PIL smacks of a continuation of Qaddafi regime tactics rather than the promise of a new way forward.
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