JURIST Guest Columnist Umar Oseni of Harvard Law School says the international concern over the announcement of Islamic law in Libya is misplaced, and instead the international community should focus on helping build an Islamic legal system that upholds human rights and the rule of law...
fter the long awaited capture and controversial killing of Muammar Gaddafi
, Chairman Mustafa Abdul-Jalil of the National Transitional Council (NTC) declared national liberation
in Benghazi on Sunday October 23, 2011. An important part of this statement, which has continued to stir controversy among political analysts and human rights activists across the world, is the announcement that Sharia will prevail in the liberated Libya. In his words, "As an Islamic country, we adopted sharia as the principal law," and he concludes: "Any law that violates sharia is null and void legally." This proclamation of Sharia has continued to spur great controversy across the world particularly among the countries that spearheaded the ousting of the former leader, Muammar Gaddafi. There are mixed feelings on the success of the NATO mandate in Libya and the uncertain future Libya in the hands of the NTC, whose future is dicey according to some political commentators.
Though it may not be so important to quibble over semantics, it is appropriate to quickly mention in passing that there is nothing called "Sharia law" or "Islamic Sharia." This is a common malapropism among many scholars who study Islam and its laws. The correct usage of the term is "Sharia" or simply "Islamic Law." Returning to the matter at hand, we shall judge the seriousness of the NTC from two legal viewpoints. The first is its proclaimed Sharia and the second is the modern human rights standards and the far-reaching implications of certain infelicitous moves made by the NTC regarding the country's legal system.
Libya and the Paradox of Declaring Sharia
Ensuring the rule of law in post-conflict states such as Libya requires close monitoring, capacity building and international assistance to establish just and equitable institutions that can stand the test of time. Though the declaration of Sharia at the onset may look pleasing to some within Libya, what is needed at this stage is to encourage post-conflict reconciliation through relevant commissions and the installation of a new government that will uphold the rule of law. Needless to say, the predominant religion in Libya is Islam, with about 97 percent of the populace being Muslim. The lives of this huge population of Libyans are supposedly guided by the dictates of the Sharia from civil to commercial matters. No one can deny the people of Libya the right to adhere to the rules of the Sharia. The classical Sharia stipulates certain groundwork reforms and policies that must be put in place before the enforcement of the Islamic law rules particularly in the administration of criminal justice system. Such reforms constitute a sine qua non to the full implementation of the Sharia in any state. In any case, such legal and socioeconomic reforms are themselves considered as part of the Sharia. What emerges from the recurrent politicization of Sharia in some Muslim countries may not be different from what we are now experiencing in Libya. This line of thought is supported by the very fact that 42 years ago, after coming to power during the 1969 Libyan Revolution, Gaddafi announced his resolve to reinstate the Sharia and abrogate important laws that contradicted the precepts of Islamic law. Five years into his regime saw a remarkable about-face. The law reforms that took place since then violated international human rights standards as well as the Sharia which he earlier proclaimed. Some analysts fear that history will repeat itself in the uncertain sociopolitical and legal future under the NTC and its successors.
All hands must be on deck to prevent future conflicts and this requires the development of a justice system that protects human rights and promotes the rule of law in line with international human rights standards. Previous research has emphasized areas of convergence between international human rights standards and cardinal Sharia principles. The new leadership in Libya should vigorously explore these areas. State building and post-conflict reconciliation is also provided for in the Sharia and there are numerous best practices that can be harmonized with the Sharia to build a new Libya.
Sharia, Human Rights and Rule of Law in Libya
Post-Gaddafi Libya poses a major challenge to the NTC. With the promise that Libya will be a moderate Muslim nation, one begins to think of the implications of such declaration on human rights and rule of law in the sociopolitical landscape of the country. The rights of the minorities, women and Gaddafi loyalists must be protected by the new regime in line with real Sharia and international human rights standards. The circumstances surrounding Gaddafi's death require an in-depth inquiry, as many begin to ask whether this is the kind of Sharia the NTC intends to introduce in Libya. The country has despairingly tarried along the lines of complete neglect of civic, social, political and cultural rights under Gaddafi in recent decades.
It is paradoxical to think of the circumstances under which Gaddafi was killed after he was captured alive and the subsequent disrespect of his remains. These are against the precepts of the ideal Sharia. Taking a quick look at the classical Sharia itself on rules of engagement, corpses must be respected and buried immediately and should not be desecrated no matter the religious beliefs, political leanings or racial background of such bodies. Sharia forbids the mutilation of the human body or the continuous display of such body in a denigrating manner where people view the corpse not as a mark of respect but in a humiliating manner. Frankly put, the NTC fighters have not only violated basic human rights provided for in the Sharia, but have also violated the law and custom of war under international law.
Besides, it is on record that the NTC fighters violated the fundamental rights of many sub-Saharan African migrants in Libya on the assumption that they were mercenaries employed by Gaddafi. There have also been reports of persecution of Gaddafi's tribesmen and those sharing his surname, which incidentally, is a common name in Libya. As Anissa Haddadi aptly suggests, "resentment might take more than just a few months to die down." The concepts of justice and rule of law provide for certain universal standards, which must be respected by the new leadership in Libya. As the NTC is pursuing its Sharia agenda while forging ahead to build a democratic state based on the rule of law, reconciliation remains a key element in the post-conflict era. Sharia principles give preference to reconciliation above any other process as a mandatory requirement for state building. According to Haddadi, "[t]he NTC's vision of an Islamic based and democratic society is not new in the Arab world but has proven difficult to establish." An Islamic based democratic government shoulders a lot of responsibilities since it is required to uphold justice and the rule of law in accordance with the religion on one hand, and strive to harmonize such a system with existing international best practices on the other.
Need for Reforms in the Administration of Justice
There is no doubt in the fact that the justice system in Libya is in complete disarray and there is a need to establish a system that would vigorously pursue the course of justice while upholding the rule of law. Human rights violations were the bane of the previous regime. The NTC now has the sole responsibility to determine the future of the country and, to this end, ensure peace, justice and human rights with an emphasis on freedom of speech. According to a recent report by Amnesty International, key legal reforms needed in the new Libya include: (1) providing the definitions for certain crimes under international law such as genocide, crimes against humanity, war crimes, torture, enforced disappearance and extrajudicial executions in the Libyan Criminal Code; (2) adequate legal safeguards, particularly in cases that are deemed to be political in nature; (3) an independent judiciary; and (4) ensuring that security forces follow Libyan law and international standards. Interestingly, the Chairman of the NTC is the former justice minister under the Gaddafi regime. Even though he resigned from the Gaddafi government during the brutal crackdown against peaceful demonstrators in Benghazi, he tacitly supported the excesses of the previous administration. It is hoped that the NTC under his leadership will be able to usher in a new regime that will respect human rights and the rule of law.
Dropping the Manichean Plotline: The Future of Libya
Finally, it is better to focus for the time being on how to assist the NTC in streamlining its new Sharia legal system in accordance with the ideal Islamic legal system, upholding human rights and promoting justice and equality just like any other liberal democracy. It is the responsibility of the international community to ensure that the Sharia in Libya is modeled after progressive Muslim countries such as Turkey and Malaysia who also have a great deal of Islamic law principles in their respective legal systems. The proclamation of Sharia may not have much implication on the people of Libya, but what is important at the moment is how the new government is able to reconcile all the parties and different factions in order to establish a new progressive Libya where peace and justice prevail. Regardless of what kind of legal system the new regime seeks to adopt, one is drawn to conclude that systemic reforms are urgently needed in all the state institutions, particularly to promote human rights and the rule of law.
Umar Oseni is a Postdoctoral Fellow at the Islamic Legal Studies Program of Harvard Law School. Previously, he was a lecturer at the International Islamic University Malaysia where he taught related subjects on Islamic law and human rights. He is an expert of contemporary issues in Islamic law and conflict resolution. Oseni is a member of the International Centre for Dispute Resolution Young & International and Mediation & Conflict Management Group.
Suggested citation: Umar Oseni, Sharia in Libya: Implications for Human Rights and the Rule of Law, JURIST - Forum, Nov. 6, 2011, http://jurist.org/forum/2011/11/umar-oseni-libya-sharia.php.
This article was prepared for publication by JURIST's academic commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org