JURIST Guest Columnist Edsel Tupaz of Tupaz & Associates says that as Libya transitions from the Gaddafi regime to a transitional government with an aim of constitutional democracy, its interim leaders should look to the experience of third-generation hybrid national/international criminal courts as part of its reconciliation strategy...
s Eid al-Fitr passes, rebel forces, now controlling most of Libya
, are conducting their final assault on Sirte. Like Stalingrad in the last World War, the symbolism in the fall of Sirte will carry no trivial import in the campaign against the residue of Muammar Gaddafi's regime. As if conspiring with the religious significance and key events of the Muslim holy month of Ramadan, there can be no doubt that rebel forces timed the invasion of Sirte much in the same way they did regarding Tripoli on August 20, the very day the Prophet Muhammad, as it is written, entered Mecca. Sirte is said to be Gaddafi's hometown, where much of his life has been shaped.
The assault on Sirte no doubt is but one leverage point among the array of bargaining chips the National Transitional Council (NTC) is deploying against the remnants of Gaddafi's regime. The NTC is the formal organizational venue and speaking authority of the rebel forces to date, and, carrying the blessing of NATO no less, it is the very source from which they draw their political and jural legitimacy. The assault on Sirte is a bargaining chip that cuts both ways too, because, the weapons of war, deployed in the name of peace, are being used by the rebels not only to press for negotiations for a peaceful transition, but also as a way to convince the governments of the world to release frozen Libyan funds, in the name of freedom of the Libyan people. The argument is made that Tripoli, like the rest of the Libyan countryside laying waste to war, is without light and hot water. The accumulation of trash pollutes the streets, and corpses are left in abandoned hospitals. Fuel costs have spiked. Like Afghanistan, Iraq, and all modern wars, every zone of conflict will bring with it a security vacuum, hence the need to pay for a civilian-led local police, also argued in the name of democracy and the non-military means for which that great name purportedly stands. So, release the funds, the rebels say. This great transfer of wealth, which has occurred partially over the week, will have very significant distributional socioeconomic consequences. Beyond wealth, it will certainly help in the affirmation of the ostensible legitimacy which Western Europe and the US, NATO included, have bestowed upon the NTC, even as in-fighting is apparent and occurring among rebel factions and tribal leaders under its auspices.
Is the NTC really the "legitimate" government which the US and its allies so recognize? The continued assaulted on Sirte, of course for the sake of peace and freedom, can strike one as a classic, circular tautologyrelease our funds so that we can finance all peace efforts; we will grant you peace by releasing our funds. Moreover, the release of funds might persuade the other key political playersChina, Russia, Brazil and the African Union, among a host of Gaddafi sympathizersto cow to NATO's crowning of NTC as the de jure government, which imprimatur, to this day, enjoys no real strong consensus.
Whatever the result of the NTC's funding problem, which remains uncertain despite the release of some Libyan funds for humanitarian purposes, will no doubt directly benefit the war powers of the rebel forces, Libya's six-month civil war will soon be resolved, and the questions now are not if or when, but how and what. What will be the nature and form of Libya's transitional government? What form of humanitarian intervention should materialize, whether led by states or by large donors, in the critical days that come?
According to the Associated Press, Moussa Ibrahim, Gaddafi's chief spokesman, very recently called the AP headquarters in New York and stated Gaddafi's offer and position to negotiate with the rebels to form a transitional government. According to Ibrahim, Gaddafi's son, al Saadi, was to head the negotiations. The NTC perfunctorily rejected the offer. The rejection certainly comes with unstated terms, but it will not be unreasonable to suppose that backdoor negotiations for a peaceful transition are already occurring, if not already sealed.
Mahmoud Jibril, speaking for the NTC, is now struggling with a "roadmap" for his country's transition to democratic rule, which includes the convention of a "national congress," a revision of the current Libyan constitution, a transitional executive and elections. Whether Jibril will in fact head the new government remains to be seen, but there is no doubt that whoever or whatever will take the reins of the new order, all in the name of the free Libyan people, must confront the brutal fact that Libya enjoys no strong liberal democratic tradition, let alone a constitutional democracy, and by that fact alone the new Libya will be subjected to deliberate design from the outside as opposed to spontaneous growth from the inside. This imposition of norms, legal and otherwise, is no new development, and will likely follow the same track Iraq and Afghanistan and the former Yugoslavia have taken. How may the new cadre of social engineerswhoever they may beapproach, design and manage the new Libyan order? More importantly, to what extent and up to what boundaries might humanitarian and multi-governmental intervention push Libya to fall into the evils of "donor-driven justice?" If there is any lesson in history from which constitutional lawyers, policy analysts and social engineers may draw, it will likely lay in the transcripts of the war crimes courts of Nuremberg and Tokyo, and, quite recently, in the great social experiment that was the Saddam Hussein trial under the auspices of the Supreme Iraqi Criminal Tribunal. Questions of transitional justice, the ways in which the present Libyan justice system ought to be diagnosed and redesigned, along with how one ought to pick the national and international actors in the post-conflict reconstruction of Libya, are the very questions the new regime must answer, even as the NTC struggles with the fact that there is still no international consensus over its own legitimacy.
Whatever the result of this crowning of thorns by nation-states, there will be no avoidance of the fact that Libya must move fast from the rule of the tribe to the rule of law. Like Iraq post-Saddam and Egypt post-Mubarak, there will be a surge of sectarian violence and criminal activity in the streets as Libya struggles in post-conflict transition. How may Libya contain this explosion of social unrest as it seeks to impose order from within and from without? What are the various post-conflict and transitional justice strategies which Libya's regime-in-waiting ought to deploy? As intimated, Libya has had no strong liberal democratic foundation; much of its governmental life has been driven by the rule of a singular personality. Its new leaders must proceed with that uncertainty in mind. The fact that Libya has had no good buttress in democracy is no reason to give up aiming for a working constitutional democracy, even if far from perfect, and certainly it is no reason for hesitating to use any and all forms of post-conflict strategies at its disposal to help its transition from war to peace. This includes what might be an interim government seated at Tripoli in the very near future.
Perhaps an instructive example is the South African Truth and Reconciliation Commission and the Good Friday Agreements in Northern Ireland. Northern Ireland and South Africa are rich sources of case studies and human capital which can benefit the new Libyan government, if it wants to be smart and quick. At the core of any nation building strategy in the wake of regime change is the idea of transitional justice, as well as international criminal justice. The deployment of transitional justiceas opposed to ordinary justiceusually takes the form of international criminal and "hybrid" courts and tribunals. In particular, the rise of hybrid criminal courts"hybrid" because they are courts of mixed compositions, including international and domestic actorsis gaining ground in state practice. The consensus so far points to the existence of seven institutions that might fall within the scope of hybrid courts, sometimes termed as "third-generation" criminal courts, namely, the Extraordinary Chambers of Cambodia, the Special Tribunal for Lebanon, the Court of Bosnia and Herzegovina, the Special Court for Sierra Leone, the Kosovo Court established under the UN Interim Administration Mission in Kosovo (UNMIK), the Special Panels of the Dili District Court in Timor-Leste, and the Iraqi Special Tribunal. These seven case studies will serve as useful starting points, keeping in mind the emergence of new courts that might ostensibly belong to the same class, as in the case of Burundi. Scholars and policymakers also ought to be more familiar with the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court, considered "second-generation" courts, as well as the Nuremburg and Tokyo Tribunals, or "first-generation" courts. The principal governing framework today is the Rome Statute, which is the international legal predicate for the mandate of the International Criminal Court.
International and hybrid criminal courts are important components to every post-conflict reconstruction strategy becauseand it will be hard to exaggerate this pointthe mere act of sentencing an individual who was complicit in the wrongdoings of the past by itself challenges the very legitimacy of the prior regime. The judgment is one whereby the mere act of promulgation is itself functionally determinative of government legitimacy in retrospect. "Your Honor, we pronounce him guilty, because all that which he stood for, the very personification of state-sanctioned abuse of human rights, including all his past atrocities for which we hold him accountable, are the very social wrongs which we now redress." Leafing through the court transcripts of the greatest trials of history will likely lead Libya to follow along these lines. If this is certain, then the new Libya will also be faced with the usual round-about accusation of handing down "victor's justice" much in the way General Douglas MacArthur was when he set up the Tokyo tribunals. This is an accusation which the new Libyan government must inevitably cope, rightly or wrongly.
As Professor Jose Alvarez, a leading scholar of international law, points out, there are benevolent objectives in the establishment of every war crimes court, including deterrence, atonement of perpetrators and honoring the dead, material and psychological restoration, sublimating revenge into peaceful settlement, restoring the rule of law, truth-telling and memorializing barbarism to prevent its recurrence and restoring lost civility of torn societies and national reconciliation. Much ink has been spilled on the ways in which international or hybrid criminal courts function not only to hand down the penalty, but to serve as the principal means of mediating and diffusing ethnic, religious or ideological tensions in divided societies by sublimating incipiently bloody moments into discursive civic activity. As intimated, the mere act of handing down a criminal penalty will bring to the fore the higher-level question of regime legitimacy, past or present. The establishment, as well as the adjudication process, of criminal courts in transitional societies can have a profound effect on the constitutional legitimacy of both the incumbent and discredited regime.
However, there are greater problems. If the new Libyan order does follow this model, this step on the way to constitutional democracy will be stymied by the fact that its legal institutions are either destroyed or barely intact. Still, the need to hold accountable those individuals most responsible for the commission of complex crimes, including war crimes, crimes against humanity and other organized forms of crime, is no less urgent. How can the accused face trial when the whole justice system is in shambles? Specialized criminal courts and "truth commissions" are almost always set up in post-conflict settings where the conditions of the local justice system simply cannot cope with the ambitiously large-scale but indispensable effort to end impunity for war crimes and crimes against humanity. It would be beneficial for the NTC to keep these resource constraints in mind if indeed it is to serve as the Gaddafi's successor. It would also be beneficial for the transitional government to explore existing models of interim governance, namely, the "clean break" model as in post-war Germany and Japan, the incremental model as in central and eastern Europe and the multi-staged South African model.
All said and done, as Ramadan draws to an end, it was Sheikh Mabruk who said that Gaddafi loyalists who had "lost their way" can come forward and be treated with mercy and in accordance with the law. "Everyone makes mistakes, even us," says Mabruk. "Join your brothers. We are all Muslims."
Edsel Tupaz is the founder and managing partner of Tupaz & Associates, a public-interest law firm. His expertise lies in comparative constitutional law, trade and development law and court systems design. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He was senior counsel and senior executive assistant of the Philippine Truth Commission created by Philippine President Benigno Aquino III. Tupaz is a graduate of Harvard Law School and Ateneo Law School in the Philippines. The author wishes to acknowledge the Associated Press for the facts upon which this article is based.
Suggested citation: Edsel Tupaz, International Justice and Post-Conflict Reconstruction in Libya, JURIST - Sidebar, Aug. 31, 2011, http://jurist.org/sidebar/2011/08/edsel-tupaz-post-conflict-libya.php.
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