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.”
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. “
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.