[The following report was issued by International Crisis Group on 17 April 2013.] 

Trial by Error: Justice in Post-Qadhafi Libya

Executive Summary 

There are many necessary cures to Libya’s pervasive insecurity, but few more urgent than repairing its judicial system. Qadhafi-era victims, distrusting an apparatus they view as a relic, take matters in their hands; some armed groups, sceptical of the state’s ability to carry out justice, arbitrarily detain, torture or assassinate presumed Qadhafi loyalists; others, taking advantage of disorder, do violence for political or criminal aims. All this triggers more grievances, further undermining confidence in the state. Breaking this cycle requires multi-pronged action: delivering justice to former regime victims by reforming the judiciary and kick-starting transitional justice; screening out ex-regime loyalists guilty of crimes while avoiding witch-hunts; and reining in armed groups, including those operating under a state umbrella. Unless there is a clear message – the justice system is being reformed; no violence or abuse, done in the past by Qadhafi-era officials or in the present by armed groups will be tolerated – there is a real risk of escalating targeted assassinations, urban violence and communal conflicts.

It has been well over a year since Qadhafi’s regime was ousted and still there is no functioning court system in many parts of the country, while armed groups continue to run prisons and enforce their own forms of justice. The severe deficiencies of the current judicial system are rooted, first and foremost, in the failings of the one that, in principle, it has replaced. Under Qadhafi, the judiciary suffered from politicisation of appointments, rampant corruption and the use of extrajudicial means to target political opponents. Four decades of such arbitrary justice served as a burdensome backdrop to the new government’s efforts; faced with a choice between summarily dismissing judicial officers who served under Qadhafi or gradually screening them one-by-one, the new authorities so far have opted for the latter. While this was the right decision, it has contributed to public scepticism regarding the scope of change.

The situation has been complicated by the proliferation of armed groups. Distrustful of the Qadhafi-era judiciary and police, frustrated by the slow pace of trials against former officials, facing state security forces in disarray and emboldened by their new power, so-called revolutionary brigades – and, at times, criminal gangs posing as such – have been operating above the law, hindering the work of investigators and judges. They all at once assume the roles of police, prosecutors, judges and jailers. Armed brigades create investigation and arrest units; draft lists of wanted individuals; set up checkpoints or force their way into people’s homes to capture presumed outlaws or people suspected of aiding the former regime; and, in some cases, run their own detention facilities in their own headquarters, isolated farms or commandeered former state buildings. Thousands of individuals are in their hands, outside the official legal framework and without benefit of judicial review or basic due process. Assassinations and growing attacks against government security forces have further darkened the picture.

This has all the hallmarks of a vicious cycle: impatience with the pace of justice and overall mistrust embolden armed groups; their increased activism undermines the state’s ability to function, including on matters of law and order; and this in turn vindicates the armed groups’ claim that it is their duty to fill the vacuum.

Underlying this state of affairs are two conflicting views of both the source of the problem and the nature of its remedy. Some – Prime Minister Ali Zeidan’s government among them – view the armed groups as a principal cause of growing violence; they advocate their disbandment or absorption into the official security apparatus and the transfer of detainees under their control to the state judiciary. Others, including the brigades themselves, view the armed groups’ activity as necessary in light of defective state institutions and continued sway of Qadhafi-era officials. These competing narratives translate into divergent approaches to the judiciary: between the government’s cautious approach to weeding out former officials on a case-by-case basis and the brigades’ call for root-and-branch dismissal of all presumed loyalists. To many Libyans, frustrated by how little appears to have changed, the latter view undoubtedly carries appeal.

Contradictory government policies towards armed groups partly explain the existence of such polarised views. The National Transitional Council (NTC), Libya’s first post-Qadhafi governing body, vowed to build a new justice system based on the rule of law. Yet, it simultaneously encouraged consolidation of the brigades, granting official recognition to a large number of armed groups that carried out their own policing activities. Too, it provided them with immunity for crimes arguably carried out in defence of the revolution. The NTC’s successor – the elected General National Congress (GNC) – partially followed in its footsteps, sanctioning efforts by government-affiliated armed groups to seize suspected individuals without regard for due process.

Given this, it is a credit to Zeidan’s government, appointed in November 2012, that it is trying to buck the tide. He and his justice minister have announced a policy of zero-tolerance toward arbitrary detention or revenge assassinations and made it a priority to transfer into state custody thousands of arbitrarily detained individuals. State security forces have emptied several illegal detention centres in the capital and the legislature passed a law criminalising torture and abductions.

It is very much a work in progress, though, and the balance of power does not clearly tilt toward the government. If not carefully managed, and in particular if legitimate grievances regarding the sluggish pace of justice for Qadhafi-era crimes are not addressed, a confrontational approach toward the brigades could well backfire. There is evidence already: the justice ministry and prime minister’s office have come under attack, and armed groups threaten to take over prisons currently under government control.

Getting this right will entail a form of political multi-tasking. The government will have to provide visible signs that it is addressing shortcomings inherited from the past in order to restore confidence in the justice system and security forces. Criminal prosecutions against high-ranking Qadhafi-era officials are an important step, but they will not suffice; what is needed is a more comprehensive transitional justice process that, in addition to criminal trials, includes appropriate vetting mechanisms for former regime loyalists and truth commissions. At the same time, armed groups – even those hailed as heroes of the uprising – will need to be held accountable for their actions as well; justice for victims of yesterday’s crimes must go hand-in-hand with justice for victims of today’s.

Recommendations 

To restore trust in the judicial system and ensure accountability

To the Supreme Judicial Council:

• Revise the draft law on the judiciary to ensure that vetting mechanisms are not based on political affiliation by providing that, inter alia:
  • an independent panel is tasked with vetting members of the judiciary;
  • the process is transparent and that disbarred judges have the right to appeal; and
  • judges are dismissed on the basis of a fair review of their performance and qualifications and not simply for having served on Qadhafi-era “special courts”.

To the Justice Ministry:

• Establish, as a matter of urgency, a screening process to end arbitrary detentions.
• Reactivate currently non-operative courts, and in districts where lingering distrust towards the state judiciary is the cause for their closure, reach out to local armed groups, notables and local councils to promote greater dialogue on the state justice system.
• Reach out to ordinary citizens through media and civil society groups to explain the current judicial system and restore confidence in what many still perceive as a Qadhafi-era relic.

To the General National Congress:

• Pass a modified bill on the judiciary, as described above, so that judges are vetted by an independent panel, and use this, rather than the Political and Administrative Exclusion Law, as the principal means to weed out corrupt and tainted members of the judiciary.
• Approve the draft laws on transitional justice and restriction of military jurisdiction to members of the armed forces.

To the Office of the General Prosecutor:

• Ensure that all investigations and criminal trials, including those of former regime officials, respect due process and are conducted consistent with the Code of Criminal Procedure.

To governments that have pledged to support rule of law and transitional justice programs in Libya, the UN Support Mission in Libya (UNSMIL), European Union (EU) and international NGOs operating in the country:

• Provide technical assistance and training to the Fact-Finding and Reconciliation Committee and its local sub-committees and support civil society organisations’ efforts to document past and recent abuses.

To help rein in armed groups

To the General National Congress:

• Amend law 38/2012 to clarify that perpetrators of crimes such as torture, murder and rape committed during and after the 2011 war will not be granted legal immunity.

To the Office of the General Prosecutor:

• Hold members of armed groups accountable for their actions, notably those involving torture and death in detention.

To the Interior Ministry and Defence Ministry:

• Bar individuals and armed groups responsible for serious crimes from leadership positions in the state security apparatus.
• Ensure that units of the Supreme Security Committee (SSC), Libya Shield and other government-approved armed groups halt the practice of arresting individuals and storming homes or offices without warrant or evidence of wrongdoing.
• Ensure that only official security units arrest so-called wanted individuals and that such units adhere strictly to due process.

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