Peace and Justice in Libya – Tripoli Falling, Justice Rising?

Rebel fighters on their way to Tripoli yesterday (Photo: AFP/Getty Images)

Reports are proliferating that the Libyan capital of Tripoli is on the verge of collapse. The level of resistance in the country has apparently now been withered to “pockets”. While the location of Col. Muammar Gaddafi remains unknown, the BBC has declared that the Libyan rebels have captured his son, a co-ICC-indictee Saif al-Islam. Here are a few thoughts on what this may mean for international criminal justice and the peace process in Libya.

Negotiated Settlement and Negotiated Justice: Dead in the Water?

Orthodox conflict resolution theory suggests that peace negotiations are necessary when no party to a war can ultimately be militarily victorious. Machinations regarding negotiations between the rebel’s National Transitional Council (NTC) and the pro-Gaddafi regime have been rife in previous weeks. Now, however, it is unclear whether such negotiations will indeed be necessary – rarely, if ever, does a victorious party to a conflict feel the need to negotiate with its defeated adversary. With the power and support of “the West” behind it, the NTC may be in a position to dictate rather than negotiate the nature and leadership of post-war Libya. With the fall of Tripoli, Colonel Gaddafi has lost any negotiating leverage or power he may have once had and could have used to shape a post-conflict transition. The idea of a negotiated power-sharing agreement between the NTC and the pro-Gaddafi regime may now be relegated to the dust-bin.

That the dynamics of power in Libya would shift so dramatically with a rebel victory has important implications on the pursuit of international criminal justice. The relationship between conflict resolution processes, especially negotiated peace agreements, and accountability remains more murky than clear. A prevalent fear remains that justice will be sacrificed at the altar of peace, that justice is something to use as a carrot or stick in negotiations rather than be treated as something that must absolutely be done.

Children celebrate on the outskirts of Tripoli (Photo: AFP)

It remains unclear as to what the NTC views as the appropriate destiny for the Tripoli Three – Gaddafi, his intelligence chief and his son Saif al-Islam. But they are now in a much stronger position to dictate that destiny. Granting amnesty or exile as a part of a negotiated settlement, a real possibility just months ago, now appears very unlikely.

The Amnesty/Exile Question

It remains a possibility, however slight, that the NTC will seek to grant Gaddafi an amnesty as a means to ensure as calm a transition as possible. Of course, this assumes that an amnesty or offer of exile to Gaddafi would, in fact, have a calming effect, something which is not at all clear.

However, the granting of amnesty or exile would seem very unlikely. Trying Gaddafi, whether in the Hague or in Tripoli or Benghazi, would be a remarkable political victory and signal for the NTC and its supporters. While tribal divisions remain strong amongst rebel ranks and some have only increased in intensity during the conflict, what seemingly all of Libya’s tribes fighting with the rebels agreed on was that Gaddafi must go.

The international nature of the conflict also plays into the fate of Gaddafi. There is likely to be significant pressure on the NTC regarding the fate of Colonel Gaddafi and the rest of the Tripoli Three. However, it’s not clear what direction that pressure will actually come from. The “West” has not won a lot of international justice credibility in the past few weeks regarding their positions in Libya, particularly in their suggestion that Gaddafi would be free to stay in the country after the conclusion of the war. Will the interventionary forces in Libya pressure the NTC to send Col. Gaddafi to the ICC? Do some believe that an amnesty for Gaddafi would be a better choice for the country? Will they push for a domestic trial of Gaddafi? What will they demand of the fate of Saif al-Islam?

Saif al-Islam ICC

Saif al-Islam on state tv prior to the rebel's attack on Tripoli

Saif: Fate in the Balance

The silence regarding the fate of Saif al-Islam has been, at least to me, deafening. International NGOs and interested states have said virtually nothing about what they believe the appropriate plans are for Saif al-Islam. Despite the ICC warrant against him and the fact that many Western diplomats had been open about giving him a key political role in a Libyan transition, human rights organizations have largely ignored Saif al-Islam.

Now, however, it has been confirmed that Saif al-Islam is in custody, that the ICC wants him transferred to the Hague. We will finally find out what fate is in store for him. It is worth considering whether there remains a possibility that Saif may emerge as a key member of a transitional authority in Libya.

In the effort to placate those who remain pro-Gaddafi, someone pro-Gaddafi will have to be involved in the political transition. Despite the warrant, the silence regarding Saif may suggest that he could be that someone. Perhaps the ICC’s demonstrated urgency in getting the TNC to transfer Saif al-Islam betrays their unease regarding his fate.

It would not be at all surprising if father Gaddafi is shipped off to the Hague to satisfy the thirst of human rights organizations and advocates while son Gaddafi is allowed, not only to stay in Libya, but to participate in its transition. As I have previously argued, with regards to the ICC, the myopic focus on the fate of Colonel Gaddafi by international organizations, human rights advocates, governments and diplomats, inadvertently creates the space for Saif to emerge as a key player in post-conflict Libya.

This isn’t to say that it is guaranteed that Saif al-Islam won’t be sent to the ICC or that he is set to have a comfy position in a transitional political authority in Libya. Others clearly disagree and believe that Saif al-Islam is on his way to the ICC or that, perhaps, he will be tried in Libya. However, one thing remains obvious: there is no tangible evidence to date, from any group, suggesting what the fate of Saif al-Islam, specifically, will be.

A Post-Gaddafi Libya and the Politics of Justice

Most importantly, Libya has finally and belatedly entered a post-Gaddafi phase. This is the most remarkable achievement for the people of Libya. Now, of course, comes the shaping of a new Libyan democracy and the reconstruction of a nation physically and psychologically ripped apart by months of violence and decades of fear and repression. The “rebels” will now be the leadership of a largely unified Libya. Indeed, can we stop calling them rebels now? As for the Tripoli Three, despite the fall of the Libyan capital, their fate does not appear more obvious today than it did yesterday. Many questions remain regarding peace and justice in Libya, and many of those questions remain hostage to politics.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Amnesty, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Peace Negotiations, The Tripoli Three (Tripoli3). Bookmark the permalink.

3 Responses to Peace and Justice in Libya – Tripoli Falling, Justice Rising?

  1. Dawood I Ahmed says:

    @Mark – I wonder how things would change if viewed through the lens of the Draft Transitional Constitution of Libya: Art. 33 “is a prohibition on the members of the Council, the interim government, or the local councils from running for the presidency of the state, or serving as a minister or member of the legislative council” (Tom Ginsburg’s analysis) that is to be Libya’s parliament. By excluding such a large chunk of people, many of whom will have been pro Qaddafi, especially in the councils, it is questionable whether this is an implicit recognition that previous members of the Qaddafi government cannot serve in the new government, and therefore there will be no justice for peace tradeoffs….

  2. Mathias Holvoet says:

    I don’t understand why the ICC was so quick to request the transfer of Saif-al-Islam, especially since NTC gave signs that it wanted to try him themselves. I thought complementarity was the cornerstone of the ICC-system? A national Libyan trial (if he’s recaptured off course) should be given a chance. This should all happen under tight scrutiny, in order to ensure that fair trial rights are guaranteed.

  3. Mark Kersten says:

    Very interesting comments.

    @Dawood – I didn’t know about this section of Draft Constitution. I would imagine that some lustration policies would be included to prevent the same people from staying in power, but a blanket lustration policy would seem to carry the danger of alienating a large section of Libyan society, not to mention less political government officials and civil servants. I generally would also be skeptical of anything that starts with “Draft”! Regardless, thanks for sharing – it’s very interesting!

    @Mathias – This is the big question and Andrew will have a post up on exactly this topic shortly!

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