This article is about transitional justice in Libya. It shows that despite the novelty of this concept in Libya – some authors argued that term is new in Libya, but the concept is not – the country has witnessed great momentum in enacting transitional justice legislation. However, this momentum was not accompanied by a momentum in implementation, in addition to, and perhaps because of, shortcomings associated with this legislation. In later periods, the feasibility and application of transitional justice, in concept and legislation, was questioned, and calls appeared to exclude it, in whole or in part, permanently or temporarily, in order to achieve national reconciliation. The political context since 2011 has had a significant impact on the emergence and development of these calls. It also had an impact on the responses provided.
The article argues that the relationship of transitional justice with national reconciliation is not mutually exclusive, meaning that it is not necessary if one is accepted that the other is denied, but rather the opposite; That is, to achieve sustainable national reconciliation, transitional justice is required. The article also argues that, despite the enormity of the challenges, there are still opportunities to achieve transitional justice.
The article is based on research that the author was involved in as part of a research project on “The Role of Law in National Reconciliation in Libya.” Transitional justice in this project represents one of five main concerns, over which Libyans’ disagreements constitute obstacles to national reconciliation. The project focused on examining the role of law in overcoming or exacerbating these disagreements. The approach of the article, as is the approach of the research project, is socio-legal, which means that the focus is not only on state law, but also on other rules regulating behavior such as religious and customary rules. It also seeks to study the dynamic of rules in the Libyan social and political context. To this end, the research methods used were observation, interviews, and focus group discussions. The article is also based on the experience the author gained from his membership in committees that prepared draft laws and decisions related to transitional justice and national reconciliation. The author also contributed to the drafting and amendment of Presidential Council Resolution No. 5/2021 establishing the National Reconciliation Commission, and the drafting of the Transitional Justice and National Reconciliation Bill at the request of this Council as well.
The article deals with seven major transitional justice issues, monitors their problems, and evaluates the legislative responses they received. These issues range from questioning the very idea of transitional justice to questioning the applicability of it; from expanding its temporal and substantive scope to narrowing it; from emphasizing the centrality of revealing the truth of its grievances to the call to forget them; and from insisting on holding the perpetrators of these injustices accountable to praising their pardon; from urging the reform of institutions that have been implicated in these grievances, or that have not manged to prevent them from reoccurrence, as they should, to limiting this reform to the targeting of persons who held positions in these institutions, even if their involvement in the grievances that occurred is not proven; from a focus on monetary compensation as the most effective means of reparation for harm, to highlighting the importance of other means and calling for taking into account the limitations of the state’s ability to compensate; from limiting transitional justice mechanisms in the national judiciary, to justifying a role for international mechanisms. Given the impact of the political context in post-February 2011 Libya on the emergence of these issues, on the one hand, and the legislative responses given to them, on the other hand, the article starts by presenting an overview of this context.