Make Justice a Foundation of the New Libya
By David Tolbert*
As gunfire dies down over Tripoli, the new Libyan authorities will be coming to terms with enormous dilemmas about the hierarchy of priorities in building a new society. Their offices will see long processions of emissaries from near and far in the coming days and weeks. Some will be sternly pressing for issues of security to be immediately addressed and others will demand that business and development concerns precede all else, while there are also bound to be those advocating for justice to be done first and quickly.
While understanding various interests and merits driving such monothematic agendas that presume separation and sequencing of priorities, Libyans should resist pressures to adopt ad hoc solutions and instead go for the ultimate goal—building a new, just society. Looking to experiences spanning tectonic changes from Berlin of 1989 to Cairo of the present, the makers of a new Libya are perfectly positioned to know that justice is as crucial to the future of their country as it is inextricably linked to stability, security, and development.
The bombed-out streets of Tripoli, Benghazi, Misrata, and other Libyan cities remind us of the tribal and regional divisions deepened by months of conflict and the poisonous legacy of 42 years of Muammar el-Qaddafi’s dictatorship. In the new reality of post-Qaddafi Libya, one task towers in its importance: building institutions capable of delivering justice and safeguarding human rights of all citizens, including—if not starting with—the Qaddafi clan itself.
This is the case not only because it was the thirst for justice and equality that ignited the revolution in the first place, but because rule of law and impartial, fair, and effective institutions will be key to overcoming internal divisions and ensuring a successful transition to a stable society untroubled by its past. And although it is clear that it can never be limited to one man, in today’s Libya a single case is on the mind of all who speak of justice.
Qaddafi case: The Hague or Tripoli?
The International Criminal Court (ICC) issued arrest warrants for Muammar El-Qaddafi, his son Saif al-Islam and intelligence chief Abdullah al-Sanussi for crimes committed against demonstrators in the early days of the Libyan uprising. The UN Security Council referred the case to the ICC under Chapter VII of the UN Charter, under circumstances in which it was impossible to expect alleged crimes against humanity to be adequately investigated in Libya itself.
Mustafa Abdel-Jalil, chairman of the Libyan National Transitional Council, stated that Qaddafi and his cohorts should be judged “in fair trial that must take place in Libya.” This would require Libya to submit a challenge to the ICC’s jurisdiction and demonstrate that it is actively investigating the case and is capable of fairly carrying out such a prosecution. In considering this decision Libyan authorities will be treading a narrow path between the need for justice to be seen to be done and the perceptions of victor’s justice.
While the ICC is effectively the court of last resort and Libyans should see it as such in considering how to proceed with the case, the complete devastation of Libyan institutions under Qaddafi’s regime must also be considered. Libya, unlike Tunisia and Egypt, will have to build its judiciary almost from scratch, and it would take considerable time and resources to create the necessary capacity to conduct such complex trials fairly.
The challenges that a trial of a former head of state pose to any judiciary in any society, let alone one coming out of decades of dictatorship and a bloody internal conflict, are enormous. And, although each context is unique, Libyans need not look too far—Cairo is just across the border—to see that such trials are often highly politicized by supporters and opponents of the accused. If mishandled in the slightest they can deepen divisions instead of providing healing to aggrieved communities and a sense of fairness to all.
Other cases offer valuable lessons in this regard. In particular, the proceedings against Saddam Hussein were plagued by mayhem in the courtroom and allegations of inadequate defense. The manner in which he was executed—taunted by his executioners—fortified the perceptions of victor’s justice among his followers, deepening divisions in Iraq. In a different context, Slobodan Milosevic used his five year trial at the ICTY as a political pulpit. The trial ended in his death before the proceedings were completed, leaving victims without satisfaction of a verdict and supporters convinced he died wrongly accused at the hands of those who prosecuted him.
Libya needs more than Qaddafi on trial
Libyan authorities should not be rushed into making this decision by either internal or external pressures. And, most importantly, whichever path they decide to take they should do so with full understanding that the trial of Qaddafi and his henchmen will not in itself be enough to provide the comprehensive justice the country needs.
The words of Mustafa Abdel-Jalil clearly illustrate this understanding: "We need to find out why we were mistreated in the past 42 years and this can only happen if there is a genuine chance for every prisoner to be held accountable in a just trial.” Abdel-Jalil, a former minister of justice, knows well that Libyans deserve to know the truth about torture, forced disappearances, and the killings that took place under Qaddafi, which extend from the bloody crackdown of March 2011 to the massacre at Abu Salim prison of 1996 and beyond.
However, the truth and justice Libyans hunger for will require more than trials of a select number of perpetrators against whom evidence will be available. They will require a platform for victims to tell their stories, efforts to identify the causes of the abuse, and access to archives of the former regime. They will require a mechanism to complement facts established in trials, domestic or international, and a way for the victims to receive both material and symbolic reparations for their suffering. Such mechanisms would help create a comprehensive historical record, a record that will serve to prevent revisionism and educate the new generation of Libyans about the past to make sure they don’t repeat it.
None of this will be possible without strong and independent institutions free of political influence, security forces and the judiciary above all. Building institutions broken through four decades of dictatorship, systematic neglect, corruption, and abuse is a huge challenge and Libyans should consider how best to utilize potential outside help to meet it. Again, they are in a good position to learn from the experiences of other countries when considering how to implement institutional reforms and what international assistance to accept. The countries of the former Yugoslavia are a gold mine of studies of failures and rare successes in reforming state institutions in societies that emerge divided from dictatorship and conflict.
Breaking the cycle of violence
Ultimately, Libyans and those genuinely intent on helping need to accept that the investment in justice will be equally as valuable in the long term as is the money coming in to repair roads, buildings, and oil refineries in the short term. Libya is emerging from Qaddafi’s rule and the six months of conflict a wounded society, with its citizens craving healing, justice, security, and prosperity. If it is to fully recover in time, Libyans of different tribes and clans, from Sirt to Benghazi, from Misrata to Brega, must be united in the belief that the cycle of violence and repression is broken for good.
The latest research on conflict prevention, recovery, and development, so clearly pertinent to Libya, finds that a key lesson of successful conflict prevention and recovery is that security, justice and economic stresses are linked; approaches that try to solve them through military-only, justice-only, or development-only solutions will falter.
While the challenges facing Libyans are huge, a clear advantage they have in rebuilding their country lies in the body of knowledge and experience at their disposal. If they make the best use of it and make a comprehensive approach to justice one the foundations of new Libya, these words of Mustafa Abdel-Jalil will eventually acquire their full meaning: “We will create history all together, as we were all equal in suffering from dictatorship for 42 years. Libya is for everyone and will now be for everyone. Libya has the right to create an example that will be followed in the Arab region.”
David Tolbert is the president of the International Center for Transitional Justice.
Photo: Libyans celebrate on August 24, 2011 in Benghazi after rebels overran el-Qaddafi's compound in Tripoli. GIANLUIGI GUERCIA/AFP/Getty Images