Impunity Rules: Libya Passes Controversial Amnesty Law

(Photo: UPI/Mohamaad Hosam)

While haggling between the ICC and Libya’s National Transitional Council (NTC) over the fate of Saif al-Islam Gaddafi and Abdullah al-Senussi continues, Libya quietly, but controversially, passed a blanket amnesty for pro-Revolution rebels.

According to Lawyers for Justice in Libya (LFJL), under ‘Law 38′, amnesty will be granted for any “acts made necessary by the 17 February revolution” and for the revolution’s “success or protection”. Earlier, reports suggested that the amnesty law was being drafted in order to appease Libya’s tribal leaders who presumably fear anti-Gaddafi rebels being held accountable for human rights violations committed during the uprising.

It is no secret that both sides of the conflict committed atrocities. In this context, it is notable that the need for amnesty is in itself an acknowledgement that crimes occurred – otherwise there would be no need for an amnesty in the first place.

Notably, the amnesty law was passed along with ‘Law 37′, which forbids “praising or glorifying Gaddafi, his regime, his ideas or his sons”. Rather precariously, the law claims that Libya is still in a state of war and allows for the imposition of a life sentence on anyone who “harms the state” in glorifying the Gaddafi regime. While, to my knowledge, Western states have remained entirely silent on the subject, LFJL and Amnesty International have harshly condemned the legislation, suggesting that they harken back to the brutal and draconian laws that restricted the freedoms of Libyans under Gaddafi.

But is Libya’s new amnesty law in any way justifiable?

As I have argued before, despite the protestation of some wishful thinking scholars, it isn’t clear that all amnesties are all bad. Louise Mallinder has shown that amnesties can vary along at least three dimensions: what crimes are covered, which groups and individuals the amnesty covers and whether amnesty has attached conditionality or not. In the case of conditional amnesties, the guarantee of immunity is tied to participation in other transitional justice mechanisms, such as testifying at a Truth Commission, as in the case of the South African Truth and Reconciliation Commission. This, in turn may contribute positively to peaceful transitions and to the establishment of the truth.

Nevertheless, granting amnesties for human rights violations aren’t the ideal and shouldn’t be seen as such. But, as Mark Freeman writes in his must-read book on the subject, amnesties may be “necessary evils”. People may be repulsed by impunity but their “repulsion for war and tyranny is greater.” Christine Bell has similarly argued that: “If the choice is between an imperfect peace and a perfect war, imperfect peace may be worth a gamble.”

A Libyan medical team excavates a mass grave of victims of the conflict in Gargarish, not far from Tripoli (Photo: AP / Abdel Magid Al Fergany)

Importantly, fears that prosecutions will lead to de-stabilization and potentially undermine a transition to peace seem to underpin the decisions of societies on whether or not to issue amnesties. Even where amnesties are granted, only once the political transition is secure, do states begin the process of unravelling amnesty laws and confronting their pasts. This was certainly the cases in Argentina and will be the case in Spain if it ever revokes its own amnesty laws.

Furthermore, recent research has indicated that using amnesties will not necessarily have negative consequences on democratization or the respect for human rights.  Indeed, the use of amnesties can have a positive effect on both. This may help explain an often overlooked fact: the frequency of amnesty laws in the wake of violent conflicts has increased in recent years.

The problem, however, with the Libyan amnesty law is that it doesn’t fit into the category of potentially “good amnesties”. It is a blanket amnesty, meaning that everyone and all crimes are covered. Serious atrocity crimes, such as war crimes or crimes against humanity will go without investigation or prosecution. The amnesty law is not tied to any truth-finding process. Moreover, the amnesty law, as well as ‘Law 37′, contravene the basic principles which the revolution was intended to be in the name of. Elham Saudi, the Executive Director of LFJL eloquently put the laws into context:

“These laws are, unfortunately, ones which are familiar to all Libyans after living under Gaddafi’s rule for 42 years. In Libya, we paid a heavy price over the last year, and the 42 preceding years, to ensure an end to prisoners of conscience only for the NTC to ensure a continuation of a system for repressing voices that dissent…It is particularly worrying that the NTC has chosen to codify into law that Libya is in ‘a state of war’.  We call on the NTC to explain the reasons for this, given that its most apparent effect is to spread fear and anxiety amongst Libyans and to afford justification for those who wish to wield power with an iron fist and who wish to undermine human rights…

…Libya is at a crucial turning point.  For Libya to move forward, and for us Libyans to be able to transition to a state that truly promotes responsible citizenship and protects our rights and freedoms, accountability must be enshrined over impunity.  All responsible for abuses must be held accountable for their actions – we must break away from the Gaddafi inheritance of impunity and from viewing all actions through the prism of the 17 February Revolution. “

(Photo: EPA)

Libyan authorities are quite clearly facing a tremendous amount of pressure from the country’s powerful tribal councils. But by kowtowing to pressure and issuing a blanket amnesty, the claim that post-Gaddafi Libya is about freedom, democracy and human rights is seriously undermined.

Importantly, the almost complete lack of international interest in highlighting Libya’s amnesty law is likely to contribute to the amnesty remaining in place, despite protestations from human rights groups. Amnesties are most likely to be implemented and remain in place where international presence and attention is low. In this instance, with the exception of Amnesty International, LFJL and an article in the Libya Herald, the amnesty law has received no English-news media attention.

Of course, many will wonder whether Libya’s amnesty law will affect the ICC’s decision on whether or not Libya can try Saif and Senussi in Libya. Legally, the answer is no. Presumably the amnesty law does not concern either Saif or Senussi, the only two living suspects wanted by the ICC.

Politically, the answer is less obvious. Judges aren’t politically blind. They may not be able to rule that Libya is unable or unwilling to try Saif or Senussi on the basis of the country’s commitment, or lack thereof, to trying other perpetrators, but it certainly doesn’t give a good impression. Then again, blanket amnesties never do.

About Mark Kersten

Mark researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, his work examines the politics of the International Criminal Court and the effects of its interventions.
This entry was posted in Amnesty, International Criminal Court (ICC), Libya, Libya and the ICC. Bookmark the permalink.

12 Responses to Impunity Rules: Libya Passes Controversial Amnesty Law

  1. Alana Tiemessen says:

    Great post – as always!

    Do you think the passage of these types of amnesty laws is more likely in circumstances where the international community supported the revolutionaries/good guys in the first place? When the armed struggle and rise to power are already sanctioned then it seems more palatable to whitewash any crimes committed in that context.

    There are some comparison here to Afghanistan, Rwanda, potentially Cote d’Ivoire….

  2. Mark Kersten says:

    Thanks for the comment Alana – much appreciated!

    It’s an interesting question. I’m not sure if it’s more or less likely. But it may be that where there is a military intervention, the intervenors actively consider the idea of amnesty laws are “necessary evils” (which is more usual than not in conflict resolution, as you know) or the international community just washes its hands entirely and so doesn’t pay attention. I think Libya fits into both categories but at different stages. The interveners were willing to grant Gaddafi de facto amnesty during the conflict to expedite a resolution to the conflict. Their attitude to this blanket amnesty, though, seems to be more, as you say, “whitewashing”. There seems to be very little interest amongst the intervening states in post-Gaddafi justice or reconciliation amongst any of the states that intervened. They claimed their intervention was a clean-cut success and seem unwilling to engage in any discussion on issues that would tarnish that narrative.

  3. Good post and thoughts. What i do not understand here: the criticism is about blanket amnesty, however why should one assume that e.g. war crimes fall under the category ““acts made necessary by the 17 February revolution” or for the revolution’s “success or protection”” ?

  4. Dean. says:

    ‘Law 38′, amnesty will be granted for any “acts made necessary by the 17 February revolution” and for the revolution’s “success or protection”.

    Unfortunately, where armed conflict has brought a country to civil war, there are times when it may well be necessary for the State to ‘draw a line in the sand’ and literally make it known that a ‘blanket’ amnesty accepts the necessity of civil war violence whilst at the same time the State demands it will not tolerate anything further…violence pre and post amnesty is therefore important in law and my own take is that this is much to do with to retributive justice as well as sending a signal internationally that ‘we’re doing our best here.’ How else does the State deal with past atrocities without it being obvious who the victor is, my only major concern is that this appears not the case, such that the very mention of Gaddafi almost ‘allows’ for crimes against that regime..this also appears to appease the militia for what THEY perceive as potential further green resistance violence..where is the process of reconciliation if you’re driving only one half of that conflict into a definite criminal act merely by ‘belonging’ yet the other half are vindicated for obvious violence against them ? ( remember that we all know how ‘wrong’ a regime can be, but employ common sense when realising MOST had to have supported it as it was in power for four decades and more ) .. A WAR crime is a war crime, you either accept both sides are responsible and declare something akin to force majeure, or you investigate each and every transgression and deal with it accordingly. Any act of government that goes so much further than merely to legitimise every aspect of one side of a civil war over the other has to viewed with great scepticism and makes me wonder just where Libya is advancing here…

  5. Pingback: Libya Passes Controversial Amnesty Law at The International Criminal Law Bureau Blog

  6. Jacob says:

    What do the Libyan people want? (I’m actually asking; not rhetorically)

    If the Libyan people agreed that amnesty were the right way to go, but it was the wrong thing to do in every other respect, would it be better for the government to trump the will of its people?

    I’m thinking of Uganda’s Amnesty Act, which granted is much less controversial than this, but it’s instructive because over 90% of Ugandans (in polls) support almost-blanket amnesty, amnesty for pretty much everyone except Joseph Kony and maybe a top commander or two.

  7. abdulbaset algadi says:

    The rebels who came out against the rightful tyrant Talm do not agree on the law such as this
    Must fight injustice of any party was

  8. Pingback: Libya’s Controversial New Transitional Justice Laws Draw Critique from Activists and Civil Society at ilawyerblog.com

  9. The New York Times just published a lengthy Sunday Magazine article on the role of the revolutionary brigades as default dispensers of justice. Although it is revealing of the extent to which each brigade has been left on its own to try to grapple with fundamental transitional justice issues that often affect their members at a deeply personal level, it does note the lengths to which some have gone to treat their prisoners – and former torturers – humanely. The amnesty law seems like a tremendous disservice to these brigades, which have shown that human rights violations are not a necessary response to Ghaddafi-era abuses Here’s a quote:

    “Libya has no army. It has no government. These things exist on paper, but in practice, Libya has yet to recover from the long maelstrom of Qaddafi’s rule. The country’s oil is being pumped again, but there are still no lawmakers, no provincial governors, no unions and almost no police. Streetlights in Tripoli blink red and green and are universally ignored. Residents cart their garbage to Qaddafi’s ruined stronghold, Bab al-Aziziya, and dump it on piles that have grown mountainous, their stench overpowering. Even such basic issues as property ownership are in a state of profound confusion. Qaddafi nationalized much of the private property in Libya starting in 1978, and now the old owners, some of them returning after decades abroad, are clamoring for the apartments and villas and factories that belonged to their grandparents. I met Libyans brandishing faded documents in Turkish and Italian, threatening to take up arms if their ancestral tracts of land were not returned.

    What Libya does have is militias, more than 60 of them, manned by rebels who had little or no military or police training when the revolution broke out less than 15 months ago. They prefer to be called katibas, or brigades, and their members are universally known as thuwar, or revolutionaries. Each brigade exercises unfettered authority over its turf, with “revolutionary legitimacy” as its only warrant. Inside their barracks — usually repurposed schools, police stations or security centers — a vast experiment in role reversal is being carried out: the guards have become the prisoners and the prisoners have become the guards. There are no rules, and each katiba is left to deal in its own way with the captives, who range from common criminals to Seif al-Islam el-Qaddafi, the deposed leader’s son and onetime heir apparent. Some have simply replicated the worst tortures that were carried out under the old regime. More have exercised restraint. Almost all of them have offered victims a chance to confront their former torturers face to face, to test their instincts, to balance the desire for revenge against the will to make Libya into something more than a madman’s playground.”

    And the link:

    http://www.nytimes.com/2012/05/13/magazine/in-libya-the-captors-have-become-the-captive.html?_r=1&ref=world&pagewanted=print

  10. Pingback: La “nuova Libia” ricorda quella di Gheddafi – Il Fatto Quotidiano

  11. Rocco Pépé says:

    I have a question for the author of this article. You state that “the frequency of amnesty laws in the wake of violent conflicts has increased in recent years”. If possible, could you direct me to your source for this claim. Thanks.

    • Mark Kersten says:

      Rocco – Thanks for your comment. You can find the data on this in the book, Transitional Justice in Balance, by Olsen, Payne and Reiter. It’s a very important contribution to the field.

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