Post-Gaddafi Libya and issues of transitional justice: what works better?

July 16, 2011

By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

It is now 4 months since the Operation Odyssey Down (as named by the US), Operation Harmattan (as named by the French), Operation Ellamy (as named by the UK), and Operation Mobile (for the Canadians) has started enforcing on Libya the UNSC Resolution 1973 that authorises, among others, a no-fly zone over Libya, freezing of assets, enforcement of an arms embargo, ban on flights, and all other necessary measures to protect innocent civilians. Recent predictions are being heard about Muammar Gaddafi’s readiness to cede power (see The Telegraph, 12 July 2011). However, since this was a statement that he said three days after it had been reported about his warning to attack Europe (The Telegraph 09 July 2011), the optimism is far from real. The hard truth that he will have to face is nonetheless his days are numbered as the opposition gets emboldened by every single day as the backing by the international community intensifies.   And it is reasonable to make notes, on the basis of ‘if it happens’, about the issues of transition to a new dawn for Libya.

One critical decision that befalls the Libyan public and the transitional government would be issues relating to how to deal with those individuals responsible for so much atrocity and in holding them to account. That task would either make or break the momentum, legitimacy and sustainability of the leaders of the opposition who would temporarily be running the nation. The Libyan military, unlike what we saw in Egypt, is not an organ on whose hands the transitional government power could be placed for the very reason that it is killing the Libyan people that it was supposed to protect in these trying days. If one ventures on possible ‘whys’ behind the success of the Egyptian popular uprising, the military personnel’s wisdom, self-imposed restraint, and progressive thinking on impartiality of the military as a public institution must come as part of the list of those reasons. Obviously this by no means puts the Egyptian military personnel in general in complete innocence as there had been over 900 reported deaths that happened during that revolution as well. On balance, however, what we see in Libya compared to Egypt is a complete opposite.

Forgetting or facing the past

Acknowledging the undesirability of ‘let’s try to forget it’ type of approach as a categorical position must be the starting point. It is never possible to cover up these horrendous violations no matter how clever we are in convincing the public that revenge is of no good for the future. Even if people may be told to forgive, forgetting is not that simple and those wounds will eventually fester with a renewed momentum of anger, desires for retribution and dire need for re-establishing the lost dignity. Thus, there has to be a consensus on the relevance of facing the past rather than trying the impossible, which is to forget it.   

How to face the past? Institutional choices

On that note and against the background of the arrest warrant issued by the ICC on Gaddafi (see Natasha Harrington’s post here), a serious decision will have to be made in terms of criminal justice institutional choice. This basically relates to opting for domestic trial or trial before the ICC. Of course other options also exist that purport the establishment of an ad hoc international tribunal as is done for Rwanda or former Yugoslavia, or a form of hybrid courts of the type that were functioning in East Timor. Dealing with a country’s past in a manner that is appropriate under the circumstances is critical because it is meant to establish the ground work for the future peace, democracy and the reign of the rule of law.

With this regard it needs to be emphasized that priority must be given for purely domestic transitional justice mechanisms where they exist (see my previous post on transitional justice in Africa here). That is also partly the reason why the ICC Rome Statute under its Art 17(1) stipulates the jurisdiction of the International Court to be subsidiary to the domestic criminal justice system. This is because the Statute provides that a case may not be admissible for investigation or prosecution where it is being investigated or prosecuted by the state which has jurisdiction over it (The Rome Statute of the ICC). And no doubt that the Libyan State will have that primary jurisdiction, though the capacity is yet to be seen, to handle the investigation and prosecution of those answerable for the crimes committed during Gaddafi’s regime. Why is it, then, that we say domestic courts are better in handling transitional justice issues than the international ones?

Role in creating legitimacy to local justice institutions

Transitional justice, a prolonged and comprehensive process of healing the wounds of the past, is undertaken as part of the post conflict institution-building project. During turmoil of the sort that is raging in today’s Libya, one fundamental aspect of public life that is being put under assault is the state institution. Its legitimacy is quarantined, its capacity destroyed and its physical structures depleted in many ways.  Therefore, the process of transition is primarily meant re-institution of the legitimacy of those state apparatuses that deliver public goods including those goods as vital as justice, security and social services. Among all these, the relevance and critical nature of justice rendition as a public good emerges as supreme. Therefore, in trusting the noble tasks of investigation, prosecution and conviction of those suspected to be part of the organised regime crimes, both individually and collectively, is another way of re-instituting public trust on the country’s justice machinery.

Issues of pragmatism

Secondly, one must recall that Libya is not a party to the ICC as is Al Bashir’s Sudan. And one can see the difficulty, if not impossibility, of enforcing the ICC’s arrest warrant that once again has been issued against a sitting regime leader (See Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, see also this post). One may still doubt the other option’s ability in bringing Gaddafi and his aides before the national courts of Libya. Because as practice reveals such dictators of the worst type manage to remain away from the criminal justice process, for that matter be it domestic or international. The former Ethiopia’s dictator Mengistu has managed to lead a life in Zimbabwe even if his country tried him for his barbaric acts of genocide and cold blooded murders, including the killing of His Majesty Emperor Haile Silassie. Similarly, the former Ugandan dictator and close friend of Gaddafi, Idi Amin was never brought to justice for the persecutions and killings he had carried out which estimates show to range from 100,000 to 500,000. He fled to Saudi Arabia and lived there until his sudden death in 2003.

Thus we could have a legitimate doubt as to the domestic trial option and its ability to bring to justice those who are supposed to answer for their deeds. However, the symbolism that the whole domestic criminal justice process will have cannot be matched with the other option like we see with regard to Sudan’s president Al Bashir whose arrest based on the ICC’s warrant is becoming increasingly doubtful. The fact that an inclusive and open trial is conducted by the domestic courts takes us extra miles in achieving the purposes of transition from violence to peace, from authoritarianism to democracy, from aggrandizing group politics to popular participation.

Being closer to victims

Third, the international ad hoc tribunals, against which we are comparing the domestic trials, are usually far removed from the victims. Accordingly, they fail, among others, to be victim-oriented. Their chain of accountability is also shifted from the locals to the international community, which usually establishes finances and monitors the process. This dislocation of accountability significantly reduces the transformational impact that they are supposed to bring about in healing victims’ wounds. Witnesses and other physical evidences exist in the very locality where the victims reside and can easily be accessed to domestically established court systems, which as a matter of fact, could also include traditional institutions. Moreover, for those systems to bring about the transformational impact, victims must be able, as much as possible, to follow up the process and be part of the investigation and prosecution. That will enable them to face their past heads on and to reflect on it. And these are matters that can hardly be realised where it comes to ad hocor permanent international courts.  

The ‘infamy’ of the International Tribunal   

One last point, and not the least, is the illegitimacy and infamy attached to the ICC or other tribunals that involve the Western world. Particularly, the ICC’s preoccupation in the exercise of its mandate so far only on African states and its continued failure to at least become critical of the acts of the US and the UK in Iraq and other countries has put its noble purposes into suspect. Even the African Union is not fully convinced by the issuance of the arrest warrant on Al Bashir, though for more needed priority reason of peace making and not strictly by supporting the acts of Al Bashir. It has, for that reason, repeatedly asked the Security Council to order the deferral of the investigation based on Article 16 of the Rome Statute.

When the Iraqi military tribunal prosecuted and executed Saddam Hussein, even though it was nominally a domestic tribunal, the presence of the occupying forces within the country had made the whole process to be one areas of exercise of an act of intervention that the Iraqi people have been forced to live with. It is, therefore, in the interests of both the international community and above all the Libyan people if the implementation of transitional justice mechanisms is left for the locals and the international community remains content with its financial and technical support, where required.


The Libyan public will soon be faced with the tasks of piecing up state institutions together and enter into a new chapter of dealing with the past for the good of the future. And the progress that transitional justice mechanisms have shown ever since the legacies of Nuremburg present to the Libyans principally two options; either the to adopt international tribunals approach or to handle it by domestic judicial and quasi-judicial mechanisms. In this contribution we have suggested, for a range of reasons, the latter course of action as being the preferred choice. There would be critical moments where the rationale and yearning for justice may end up being in a collision course with that of peace building. And that hard choice can best be made by the locals who also include the victims that had suffered unspeakable damages and who at the same time would benefit from the future peace dividend.

2 Responses to “Post-Gaddafi Libya and issues of transitional justice: what works better?”

  1. Mujuni Africa Says:

    In order to have a sovereign Africa, we need an independent African political environment and not the American, or any Western ideologies of what possibly suits us. I am a citizen of Africa well educated and clearly understands the needs of a developing continent like it is. I humbly request Obama and friends to stop interfering with our political environment and eventually stealing from Africa.

    The UN has failed to perform its duties. I hold the countries that passed the NATO intervention and the decision to arm Libya’s rebels accountable for the lives of innocent people that are being lost every day. I hope the ICC can also consider such grave mistakes made by the Western, otherwise, the ICC is not good for Africa.

    • Belachew M Fikre Says:

      When one looks at the global court’s mandates and rationale, no doubt that the international community is better off with it than without it. I would not, in principle say that ICC is not of any worth to Africa, because it even has an indispensable role for the world. It is unfortunate, however, might and supersedes right in our past, today’s and most likely future world. When the US opted to remain outside the club, it gave purported justifications that included, among others, the ICC’s non-accountable Prosecutor and its unchecked judicial power are clearly inconsistent with American standards of constitutionalism’ (Wald, (2004), p 20). And on the same year the ICC was born, the US Congress had passed a Statute titled ‘American Servicemembers’ Protection Act’ that prohibited any US court or agency from responding to a request for cooperation from the ICC, prohibited any US official from extraditing any US citizen or permanent resident alien to the ICC, prohibited provision of support to the Court, and many other (Ibid). So, as one clearly observe here, being powerful plays a role in giving precedence to national sovereignty and domestic constitutionalism over ‘global norms’, etc. But I would not have any problem with that. What is revealing is that the ICC is meant to be an organ that would play that sacred role of even checking the most powerful state as the US and that is why it has vehemently disagreed with the idea of an international Court as powerful as this one. Again the doors are still open because as Al Bashir’s Sudan, being a non-member is no bar to be brought before this Court if/when it starts to act in earnest.
      The problem with most other dictatorial regimes be it in Europe, Africa, Asia or Latin America is that they try to externalise and blame the US or the other super powers for their failures saying for instance ‘watch your own business; see what you were doing at Guantanamo, Iraq, etc, etc’ and dump the same old styled propaganda on their people through the medias they have full control on. Here we need the ICC, and in principle, that is the best way to deal with these types of ever empowered autocrats. However, the Court’s practice so far could not provide any hope of delivering up to that standard and I remain pessimistic particularly with its role in Africa. But this is not because it is of no worth but because it is not yet ready to show what its real worth is.
      In situations like Libya I was suggesting that the possibilities for domestic based trials would better respond to the needs of peace building and the victims’ yearning to see justice being done. I would argue that that option must be given priority.
      Reference: Wald, Patricia M., (2004) ‘Is the US’ opposition to the ICC intractable?’ Journal of International Criminal Justice, Vol. 2, pp 19-25

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