A fascinating debate about where to try the two surviving members of theTripoli Three – Saif al-Islam Gaddafi and Abdullah al-Senussi – is currently raging (see here, here and here). It’s an important debate, and, as readers will know, I have chirped in as well.

But the preoccupation with criminal responsibility shouldn’t detract from the over-arching need for accountability, truth and reconciliation in Libya. Yes, ‘accountability’, ‘truth’ and ‘reconciliation’ are lofty and contested words; this blog post doesn’t pretend to capture the competing views or the political nature of each. The point is rather simple: after forty years of a police state engaging periodically in international terrorism and repressing the freedoms of its own people, there’s a need to pursue justice outside of the courtrooms. An empowered and independent truth commission in Libya could help do just that.

Beyond Trial-Heavy Transitional Justice

The development of international criminal justice is nothing short of remarkable. According to its President, Sang-Hyun Song, when the International Criminal Court became a reality in 2002, the Court’s first judges expressed doubt that the ICC could survive the skepticism and hostility of international politics. Today, hardly a day goes by that an international tribunal isn’t in the news. So remarkable is its reach that individuals, from Sudanese President Omar al-Bashir to former Secretary of State Henry Kissinger, not only fear international criminal justice but calibrate their day-to-day lives according to its reach.

Yet, simultaneously, the expansion of international criminal law onto the agenda of international politics has led to a myopic focus on individual criminal accountability. Indeed, transitional justice and justice in conflict are, generally, trial heavy. Thus, a handful of individuals are deemed responsible for social processes as complex as the alleged genocide in Darfur and the war in Vietnam.

Of course, the focus on individual accountability is not, in itself, a bad thing. There are some individuals who are most responsible for international crimes. However, the attention, resources and political will aimed at ensuring international criminal justice should not come at the expense of identifying the social causes of atrocities. In contexts like Libya,  justice does not end with the sounding of a gavel. There is a need to bring to account those who allow atrocities to occur but could never be brought before an international or domestic tribunal. As Kirsten Ainley explains in a forthcoming paper,

“responsibility for war crimes lies not with individual perpetrators alone but also in significant measure with collectives and with those individuals who did not commit crimes but did contribute to harm.”

Ainley rightly adds that individual accountability should not detract from addressing the “excesses of responsibility” outside of trial chambers. Truth Commissions (TCs) are in a perfect position to do just that.

Getting to the Truth through Truth Commissions

Truth commissions provide accountability primarily through the process of acknowledging that certain criminal acts were committed, and identifying individuals as responsible for those crimes. As the individuals responsible for harmful acts testify and acknowledge their behaviour, truths about the past emerge. Proponents of truth commissions argue that this process of acknowledgement is the first necessary step on the path towards closure and, possibly, forgiveness.

Unlike the “forensic” truth of criminal investigations and trials, TCs can help establish the broader facts about how and why certain events occurred. This is particularly important in creating knowledge about the causes and dynamics of conflicts, while trouncing the notion that atrocities are “senseless” and “irrational”.

Further, when done properly, truth commissions have the advantage of large-scale public participation. Grievances can be aired, historical narratives and accounts established.

Of course, TCs are no panacea; they are far from perfect. For every TC like South Africa’s Truth and Reconciliation Commission (TRC) (widely seen as a model TC), there are a few which have failed miserably. Indeed, it’s worthwhile pointing out that a pervasive selection bias exists in the literature on TCs, where the South African experience receives excessive attention while failed and aborted TCs are neglected.

Lastly, not everyone feels comfortable attending Truth Commission hearings (especially when they are televised) and, as some critics have pointed out, the narratives that emerge from truth commissions may simply be acts to legitimize new political powers. For example, in the case of South Africa, the TRC may have been used to legitimize the African National Congress. Notably, no other party has come close to governing South Africa since.

Despite these issues however, TCs remain important mechanisms for achieving broader accountability of the social nature of atrocities and acknowledgement of the atrocious chapters of a society’s history. Despite this, however, there has been scant discussion of a TC in Libya.

A Truth Commission for Libya

A basic search on Google illustrates that the issue of establishing a truth commission in Libya has barely been covered. While this may be due to the recent conclusion of the conflict (although widespread coverage on criminal justice throughout the conflict suggests this isn’t the case), it is well worth considering the benefits of a Libyan TC.

Of the very few that have considered the issue, Jason Pack and Sami Zaptia have argued that a TC modeled on the South African Commission is vital:

“Only a Libyan version of South Africa’s Truth and Reconciliation Commission can establish a culture of the rule of law and avert haphazard revenge-taking and a wave of workers’ strikes… Such a commission should begin work immediately, so that anger and suspicion does not fester while Libyans wait 18 months for a constitutionally elected government.”

(Photo: SIPA PRESS/ REX FEATURES)

It is quite clear that Libya and Libyans need more than just the forensic truths which will emerge from legal proceedings against individuals like Saif al-Islam Gaddafi and Abdullah al-Senussi.

There is a need to understand how the Gaddafi regime was able to control the country for so long and why key events, like the Abu Salim massacre, occurred. There is also a need to get to the bottom of how Gaddafi’s rule was propped up and legitimized by external powers – including Western states.

Unlike the lengthy delays that are likely to impede trials of Gaddafi and al-Senussi, a Libya TC could begin work almost immediately. It is also possible that such a TC could help gather evidence which would subsequently be used in trials. Yet, of course, this advantage is counterweighted by the highly politicized and fragile environment facing the country.

Importantly, a TC cannot just be a superficial nod to the need for truth while simply legitimizing the transitional government. Indeed, any TC should have jurisdiction over the alleged crimes which were, and continue to be, committed by rebel groups. For TCs to be effective, they must be empowered to investigate thoroughly and widely without political intrusion.

A Broader Pursuit of Justice

In the wake of stagnant, unsatisfactory and harshly dichotomous debates about whether societies should pursue peace or justice or truth or reconciliation, there has been a growing view that a “holistic approach” to post-conflict justice is required. While the advances in international criminal justice are impressive, it would be foolish to conflate pursuing and achieving “justice” with “international criminal justice”.

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UPDATE: I came upon this article from the New York Times (from early November), suggesting that a truth commission has been discussed as an option for post-Gaddafi Libya. The report quotes Libya’s former interim justice minister, Mohammed al-Alagi, as saying that the NTC has been considering the creation of a committee that would draw upon the Chilean, South African and Argentine experiences. Interestingly, the report also claimed that the justice minister’s “words spoke of a recognition that to some extent nearly everyone in some way played a role in facilitating the old order and that catharsis, not punishment, is the point.”