09 May Surprise, the NTC Amnesties Its Own Crimes
So reports Mark Kersten in a blockbuster post at Justice in Conflict. You have to read the whole thing; here is a taste:
While haggling between the ICC and Libya’s National Transitional Council (NTC) over the fate of Saif al-Islam Gaddafi and Abdullah al-Senussi continues, Libya quietly, but controversially, passed a blanket amnesty for pro-Revolution rebels.
According to Lawyers for Justice in Libya (LFJL), under ‘Law 38′, amnesty will be granted for any “acts made necessary by the 17 February revolution” and for the revolution’s “success or protection”. Earlier, reports suggested that the amnesty law was being drafted in order to appease Libya’s tribal leaders who presumably fear anti-Gaddafi rebels being held accountable for human rights violations committed during the uprising.
It is no secret that both sides of the conflict committed atrocities. In this context, it is notable that the need for amnesty is in itself an acknowledgement that crimes occurred – otherwise there would be no need for an amnesty in the first place.
Notably, the amnesty law was passed along with ‘Law 37′, which forbids “praising or glorifying Gaddafi, his regime, his ideas or his sons”. Rather precariously, the law claims that Libya is still in a state of war and allows for the imposition of a life sentence on anyone who “harms the state” in glorifying the Gaddafi regime. While, to my knowledge, Western states have remained entirely silent on the subject, LFJL and Amnesty International have harshly condemned the legislation, suggesting that they harken back to the brutal and draconian laws that restricted the freedoms of Libyans under Gaddafi.
Mark provides invaluable analysis of the new law, distinguishing between “good” amnesties and “bad amnesties” and pointing out that, by any measure, this is one of the bad ones. He also rightly adds, referring to Libya’s pending admissibility challenge at the ICC, that “Judges aren’t politically blind. They may not be able to rule that Libya is unable or unwilling to try Saif or Senussi on the basis of the country’s commitment, or lack thereof, to trying other perpetrators, but it certainly doesn’t give a good impression.” I’d simply add that the amnesty foregrounds the importance of the OTP not limiting its Libya investigation to members of Gaddafi’s regime; it must also be willing to prosecute high-ranking rebel commanders who are responsible for serious international crimes during the revolution. Recall what the Commission of Inquiry concluded in its most recent report:
The Commission further concluded that the thuwar (anti-Qadhafi forces) committed serious violations, including war crimes and breaches of international human rights law, the latter continuing at the time of the present report. The Commission found these violations to include unlawful killing, arbitrary arrest, torture, enforced disappearance, indiscriminate attacks, and pillage. It found in particular that the thuwar are targeting the Tawergha and other communities.
As the amnesty law makes clear, when it comes to accountability for the new Libyan government, it’s the ICC or nothing.