An in-depth discussion of the challenges facing the implementation of transitional justice in Libya after 12 years of revolution

In an electronic seminar organized by CHRDA 

On Thursday, February 2, 2023, the Defender Center for Human Rights organized a digital symposium to discuss the research paper “Transitional Justice in Libya – Confused Paths”, which was published by the Center as part of its research activities concerned with studying the challenges facing the protection of human rights and the promotion of justice efforts, accountability and opportunities for democratic transition. The author of the research paper, Dr. Suleiman Ibrahim, Associate Professor of Private Law and Director of the Center for Law and Society Studies at the University of Benghazi, presented the research paper at the symposium, and the human rights lawyer and former Minister of Justice, Professor Salah Al-Marghani, commented afterwards. The discussion was moderated by Ragab Saad, Head of the Research and Studies Department at the Defender Center. A group of lawyers, researchers, human rights defenders, academics and diplomats also participated in the symposium.

Saad opened the symposium by referring to the major challenges facing the promotion of human rights and justice in Libya, despite the passage of nearly 12 years since the outbreak of the revolution. Saad emphasised the absence of political will in Libya to achieve justice and protect and respect human rights. Saad added that when the Independent Fact-Finding Mission was established in Libya in 2020 by a decision issued by the Human Rights Council, false hope prevailed among some when they imagined that there was a glimmer of hope that the Libyan authorities would finally support efforts to document human rights violations and lay the foundation for accountability for violations. However, we have all witnessed how the Libyan authorities did not provide sufficient support for the work of the mission, and last year they decided not to support the extension of the mandate of the mission and agreed after strenuous efforts to support the extension of its mandate for one last time, so that the work of the mission ends in March 2023 without the existence of another professional international mechanism that continues to document human rights violations in Libya.

Saad pointed out that the Libyans noticed from an early stage of 17 February revolution the importance of a transitional justice law to achieve justice and accountability for gross violations of human rights and redress for the victims. Libya witnessed the issuance of several transitional justice laws, including the issuance of Law No. (17) of 2012 by the National Transitional Council on establishing the rules for national reconciliation and transitional justice, and the law issued by the General National Congress, which is Law No. (29) of 2013 on transitional justice, and he added that a new law is being prepared, recently,  to achieve transitional justice under the name “Reconciliation of the disagreement” under the auspices of the Presidential Council and within the framework of its strategic vision for the National Reconciliation Project in Libya. Saad confirmed that some have criticisms of the proposed law, as they believe that this law focuses on reconciliation and amnesty, in exchange for showing less importance to the issue of accountability for gross human rights violations. In this context, Saad indicated that the Defender Center organized in October 2022 a symposium to discuss the draft law, with the participation of a group of experts involved in preparing the law, including Dr. Suleiman, and several Libyan, regional and international human rights organizations, and experts on transitional justice in Libya.

Dr. Suleiman Ibrahim began his speech by emphasizing the importance of transitional justice after the February 2011 revolution, as evidenced by the quantity and type of legislation that appeared since then, and that major problems faced the enactment and implementation of these legislations. In the early years of the revolution, the transitional authorities were affected when dealing with these problems by a revolutionary tendency that manifested itself in an effort to break with the previous regime, its legislation, institutions and people who were in power in the previous regime, before adopting, in the subsequent years, a contrary approach whose repercussions included a review of revolutionary legislation and seeking to replace them with conciliatory ones with the previous regime. Representing both approaches, Ibrahim referred to the legislation of the Transitional National Council, the General National Congress, and the House of Representatives.

Ibrahim highlighted the discrepancy between Libyans regarding the importance of implementing transitional justice, and the debate between those who doubt its usefulness and those who support it, indicating that the need for transitional justice today is due to the failure of traditional justice to address gross human rights violations and hold perpetrators accountable. In his talk, he revealed that the complexities affecting the concept of transitional justice are evident in the divergence of opinions on issues, the most important of which is its time scale. There are, for example, those who believe that transitional justice measures should include the period of monarchical rule, and there are those who link them to the period of Gaddafi’s rule, and there are those who assert that the post-February 2011 period also witnessed serious violations that are no less than, and perhaps even exceed, what happened before it.

Ibrahim stressed that knowing the truth is a right for the victims, citing a report by the Office of the High Commissioner for Human Rights confirming that “the right to know the truth is an inalienable right.” However, he raised the challenge of the “amnesty”, which was regulated by numerous legislations according to the political contexts in which it took place. The drafting of these legislations may constitute an obstacle to revealing the truth, in addition to problems related to limiting reparations to monetary compensation, reducing institutional reform to political isolation, and the critical performance of the national judiciary in dealing with major transitional justice issues, giving the example of the death sentence issued by the Tripoli Appeal Court on defendants, including Saif al-Islam Gaddafi, and the ruling issued by the same court that the Abu Salim prison massacre case has expired, which prompted some to call for the use of a pure or mixed international judiciary. Ibrahim drew attention to the fact that the biggest challenge facing transitional justice is presenting it as contrary to national reconciliation. 

In his comment on Dr. Ibrahim’s talk, the human rights lawyer and former Minister of Justice Salah Al-Marghani appreciated the work presented by the speaker and praised the great effort made by the team of the Center for Law and Society Studies at the University of Benghazi and the depth in which it dealt with transitional justice and emphasised that the last push for national reconciliation and transitional justice neglected to support the importance of applying a number of important existing and proposed legislation and building on them that would advance reconciliation and justice. One of these important legislations were the Cabinet Resolution No. 119 of 2014, which dealt with victims of sexual violence, and the draft for civil associations law. Al-Marghani said that Libya today is in an exceptional situation in which it needs innovative solutions and laws that carry ideas outside the ordinary. Al-Marghani pointed out that the principle of reparation for damage through the “compensation project” requires a realistic and fair assessment. He gave an example of returning usurped real estate instead of offering compensation for it.  This compensation, according to Al-Marghani should be offered to the families who occupy real estate through housing projects, loans and other means of compensation to find an appropriate alternative for the damage that resulted from previous grievances. In this context, he indicated that the state was unable to compensate more than 12% of the values owed to the “Abu Salim” prisoners (until the time of the collapse of the single authority structure in 2014), who were able to obtain a law to compensate them at an early stage, although the Libyan state is now standing in front of a huge number of grievances that need great compensation and treatments with an open mind and heart

Al-Marghani raised the problem of overlooking the religious dimension in the transitional justice project that was adopted, considering that the religious dimension stipulates reconciliation and justice at the same time. Al-Marghani criticized the role of religious institutions in Libya, which he described as moving in directions contrary to the principles of religion in reconciliation and justice, as they have become inflammatory institutions. He iterated it is possible to move in the path of the restorative religious dimension, which provides for justice in its context when the nation is in civil war. As for the national judiciary, Al-Marghani considered, by virtue of his experience that extends for half a century in the corridors of the Libyan judiciary and courts since 1972, that it is impossible for the judiciary, in its current situation and in light of the existing political and security environment, to deal with cases of war crimes and crimes against humanity, as the division and conflict in Libya impacted on the assessment criteria of many people. This makes the criminal on one side the hero in the eyes of the other side. Al-Marghani asked: How will the national judiciary deal with this confusing and complex situation? He added that experience confirms that lifting the burden on the national judiciary in such cases can ease it so that it can consider other cases. He cited the Rwandan experience, which lifted this burden from its judiciary, and succeeded in enabling the judiciary to deal with cases that could be considered, which allowed justice not to be obstructed in all fields.

Al-Marghani questioned the ability of the judiciary to oblige officers and sheikhs to comply before the courts to decide cases of crimes against humanity and war crimes. He said, “The national judiciary cannot deal with the real suspects in cases of war crimes and against humanity, and even the legal texts do not allow dealing with many cases such as the case of Abu Salim prison, in which more than a thousand people were killed, and the statute of limitations was passed.

Marwan Tashani, a human rights researcher and former Libyan judge, said that as soon as one political party takes the lead and adopts the concept of transitional justice, the entire path departs from its objectivity and impartiality, in reference to the Presidential Council that oversees the plan for national reconciliation, including the “Reconciliation of disagreement” reform law. Tashani pointed out that there not clear criteria for the intervening parties of the reconciliation conference which witnessed the absence of the voice of civil society and the victims.

Tashani added that all of this affects the course of transitional justice, in the absence of a single authority elected by the people, as the supervising authority remains affected by polarization. This is regardless of the scientific value and research efforts of the experts involved in formulating the council’s strategic vision.

Zahi al-Maghirbi, a political expert and former professor of political science at the University of Benghazi, considered that talking about the concept of transitional justice in itself is possible only in the presence of a state, or a minimum level of authority that controls all parties to the state. In the presence of competing governments, it is not possible to achieve transitional justice, which relates to procedures and paths different from those of traditional justice and seeks accountability and an end to impunity for war crimes and crimes against humanity. Al-Maghirbi indicated that transitional justice is an important and urgent stage, but its ultimate goal remains national reconciliation. He also stressed that the issue of amnesty is also linked to the recognition of the parties involved in committing these crimes.

Intisar Al-Barassi, a Libyan writer and journalist, confirmed that such research issued by human rights organizations is of great importance to the Libyan press, noting that the press in recent years has contributed to deepening the division, considering the existing polarization. She emphasized the absence of an independent press in Libya, which could have contributed positively to national reconciliation. Al-Barassi stressed that the concept and procedures of transitional justice need a media that is politically independent from all parties, with the aim of enlightening public opinion and playing its primary role in supporting efforts to respect human rights and support national reconciliation efforts.