Libya and the ICC: In the Pursuit of Justice?

[Leila Hanafi works as regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court. This contribution is cross-posted at the Middle East Monitor.]

The ongoing post-conflict reconstruction process in Libya is reigniting a crucial debate among transitional justice advocates as to the role the International Criminal Court (ICC) can play in delivering justice and redress to victims of grave crimes. In the midst of the February 2011 revolution, the ICC opened an investigation into crimes allegedly committed in Libya, based on United Nations Security Council (UNSC) Resolution 1970. The Court has to date issued three arrest warrants for Saif Al-Islam Gaddafi, Abdullah Al-Senussi and Muammar Gaddafi. The warrant against Muammar Gaddafi was withdrawn following his death, while Al-Islam Gaddafi is currently detained in Libya and Al-Senussi in Mauritania. Neither has been turned over to the ICC. The Libyan National Transitional Council (NTC) has asserted that it wishes to try these men in Libya, while France has declared its intention to purse Al-Senussi’s extradition for earlier alleged crimes. However, the ICC, along with many human rights groups nationally and internationally, question Libya’s capacity to conduct fair trials against these high profile individuals.

Key Justice Concerns in Libya

In my capacity as regional coordinator for the Coalition for the International Criminal Court Middle East and North Africa (MENA), I recently spoke with several Libyan legal and civil society stakeholders who expressed the view that existing Libyan laws do not always conform to human rights standards and need to be repealed or amended. Although the recent adoption by the NTC of a transitional justice law has been a step in the right direction, the capacity of the Libyan legal system to deliver justice remains weak.

In its February 2012 report, the United Nations International Commission of Inquiry on Libya stated that Libya was marred by widespread human rights abuses and brutal repression under Muammar Gaddafi’s decades of autocratic rule. It is against this background of impunity that the call for rule of law and reforms in the justice system needs to be assessed. Members of the legal and judicial sectors played a decisive role in the 17 February revolution, with the independence of the judiciary one of their main demands. Although the law under Gaddafi provided for an independent judiciary, this was not the case in practice. The government used summary judicial proceedings to suppress domestic dissent, interfered in the administration of justice by altering court judgments, replaced judges and manipulated the appeals system. A 2010 United States State Department report on human rights practices in Libya found that the judiciary also failed to incorporate international standards for fair trials, detention and imprisonment. It is therefore unsurprising that the judicial system in Libya collapsed in the aftermath of the 2011 conflict, and continues to suffer from a lack of trust on the part of victims seeking redress as well as the Libyan public at large.

Today, most international human rights organizations seem to acknowledge that the situation in Libya remains generally precarious. Reports of widespread abuse of internally displaced people, especially women and children, as well as violations of the rights of detainees, are particularly worrying to the human rights community. A February 2012 Amnesty International report detailed ongoing arbitrary detention, unauthorized interrogations, coerced confessions and torture. In the same month, the International Commission of Inquiry on Libya similarly declared that “[b]reaches of international human rights law continue to occur in a climate of impunity […] forces loyal to Libyan leader Muammar Gaddafi carried out mass executions and tortured suspected regime opponents, amounting to crimes against humanity.”

Fighting Impunity: Domesticating the Rome Statute?

The process of enforcing justice is a complicated and often contentious one. The new Libyan leadership now faces the challenge of rebuilding a country that is, according to the International Commission of Inquiry on Libya, “devoid of independent institutions, a civil society, and a judiciary able to provide justice and redress.” At this critical juncture, the availability of the ICC— an internationally recognized body—to promulgate principles of global importance is vital to fostering universal justice principles and steering Libya away from victor’s justice. So how can the ICC inspire the criminal justice reform process within Libya?

Continued monitoring by international entities can be a catalyst for reforms of national justice systems, encouraging states to implement best practices from other national systems and ensure the continued capacity of its legal and judicial sectors. It is therefore difficult to negate the role of international justice has to play in accountability efforts in Libya. At a time when the ICC is expanding its important work to end impunity for genocide, crimes against humanity and war crimes, Libya can take advantage of the Rome Statute—the Court’s founding treaty—for its own national legal framework and repeal the special laws in force during the reign of Gaddafi. The Libyan criminal justice system must meet new challenges based on a changed international environment. The police, prosecutors and legal framework must become scrupulous actors in observing evolving standards of human rights and accountability. In addition to the role that the ICC could play in upholding due process in the trial of Saif Al-Islam Gaddafi and Abdullah Al-Senussi, once Libya’s new legislature is in place, ratification of international human rights law conventions—including accession to the Rome Statute—would lend legitimacy to the country’s commitment to universal human rights.

Dr. Cherif Bassiouni, an authoritative source on international criminal justice and chief architect of the ICC, stresses that “it is important that any kind of post-conflict justice be owned by the people affected.” The challenge he puts forth is how international criminal law, expanded in the Rome Statute, can be used to carry out effective prosecutions at the national level. In this context, the international community should assist Libya in its efforts to establish transitional justice and in fostering prosecutions within the national system, bearing in mind that some forms of justice mechanisms already exist in Libya.  As the country embarks on legislative reforms, the Rome Statute in particular should be instrumental to incorporating international crimes into the Libyan criminal code and repealing any statutory limitations applying to such crimes. Equally important is the establishment of an independent judiciary and capacity strengthening programs for the judiciary, police and prison service— in particular in the development of specialized investigative and prosecutorial skills, as well as the consideration of the rights of victims in all accountability mechanisms in accordance with ICC norms.

Libyan authorities are slowly responding to their citizens’ demands for accountability and justice and there is a growing interest in supporting human rights and adapting to international human rights law standards. These recent developments bolster the legitimacy of the ICC in its effort to relay a strong message that there can be no impunity for genocide, crimes against humanity and war crimes. In the words of a young Libyan human rights activist, Jamila Azar, “Libyans want to cultivate a culture against impunity to end the Gaddafi legacy and prevent a repetition of repressive practices.” Today, the country is one of the many examples of how societies in the MENA region grapple with balancing the ideals of traditional, national and international law with the imperative of making society more just for their people.