Marieke Wierda joins JiC for this post, part of our ongoing joint symposium with Opinio Juris on Libya and International Justice. Dr. Wierda is the rule of law advisor at the Dutch Ministry of Foreign Affairs and ex-Transitional Justice Advisor to UNSMIL (2011-2015). This blog is written in her personal capacity. Earlier today, Mary Fitzerald’s contribution to the symposium was published at OJ. Be sure to check it out!
Libya has always been a dangerous place for migrants and refugees. They are often at the mercy of ruthless human traffickers, militias who trade them for money, or abusive state authorities who detain them indefinitely. Now it is more dangerous than ever. On 3 July, an airstrike hit a migrant center in Tajoura, killing 53 and injuring another 150, many of them women and children. The UN’s Libya envoy, Ghassan Salame, called the attack a war crime. In the current chaos, those most vulnerable, such as migrants and refugees, are the first to suffer.
The response of the Security Council to the airstrike is illustrative of how difficult it has been to pursue accountability in the Libyan context. The Council condemned the attack but did not attribute it to any side. The international community remains deeply divided on Libya, and this complicates any efforts to call any of the parties to account for their actions.
It was not always this way. During the Revolution in 2011, the Security Council unanimously adopted Resolution 1970, which sought to protect civilians and to refer the situation to the International Criminal Court. The Resolution also enabled international armed intervention in Libya and eventually helped the revolutionaries to prevail against the regime of Muammar Qadhafi.
The demand for justice was there from the outset and helped to drive the Revolution. Protests from the victims of the Abu Slim massacre in 1996 are what sparked the uprising against Qadhafi. Within two days, over 1,200 prisoners of the infamous prison in Tripoli were mowed down with machine guns. Family members were not informed about their deaths until 2008. The Abu Slim massacre was a hallmark of the repressive nature of the Qadhafi regime and inspired the country’s opposition to rise against Qadhafi in 2011.
When they prevailed, the victory of the revolutionaries quickly seemed complete. In October, Qadhafi himself was captured alive near Sirte. Qadhafi was then tortured and killed. In the aftermath of the killing, around 65 bodies were found executed near the Mahari hotel, civilians mixed with members of Qadhafi’s close protection unit. No one was held to account.
What is tragic is that since the fall of Qadhafi, many of the same crimes and violations committed by his regime, including detentions and torture, remain pervasive. The thirst for justice has often translated into acts of revenge. Triumphant militia’s in Tripoli and Misrata detained thousands of perceived Qadhafi loyalists after the Revolution. Many remain in detention today, without any legal process. An entire town, Tawergha, was emptied of its inhabitants in what many view as an act of ethnic cleansing. The militias became a law unto themselves. A “political isolation” law served to further close down political space and fuel conflict. Again, no one has been held to account.
Ironically, senior members of Qadhafi’s regime were amongst the few to see any, albeit flawed, judicial process. On 28 July 2015, the Court of Assize in Tripoli convicted 33 of 37 senior Qadhafi officials, sentencing some to death by firing squad and others to life imprisonment or prison sentences. The trials were conducted in the shadow of the International Criminal Court, which has sought to gain custody over Saif Al-Islam. The death sentences have not been carried out and the whereabouts of Saif Al-Islam remain unknown.
The lawlessness of the militias has contributed to the rise of Field Marshall Khalifa Haftar in Eastern Libya. Haftar wishes to eradicate militias and to unite the monopoly of force in Libya’s National Army in a unified state, presumably under his reign. Haftar’s military campaign has thwarted the Libyan Political Agreement, negotiated by the United Nations in Skhirat in December 2015. In April of this year, Haftar mounted an attack on Tripoli on the very day that the Secretary-General was in Libya to support UN efforts towards a national dialogue. However, Haftar’s “dignity” campaign is far from synonymous with the rule of law. On YouTube, some forces under Haftar’s command, including Saiqa commander Mahmoud Al-Werfalli, can be seen on camera committing war crimes such as the point-blank execution of prisoners deemed “terrorists”. Al-Werfalli has since been indicted by the ICC. But his master Haftar receives international support from some countries for his quest to conquer all of Libya. To many, Haftar represents a continuation of, rather than a break from Libya’s repressive past. Neither he or any of his forces have been held to account. Most recently, armed men in the East abducted a female lawmaker, Seham Sergawy, in Benghazi. She had been critical of Haftar’s Libyan National Army. Her whereabouts remain unknown.
So, what steps can begin to restore the rule of law to Libya? How can it emerge from the current chaos, violence, and divisions that plague the country? The current situation benefits and enriches few at the expense of the many, including not only those killed or injured, but thousands of civilians either trapped in fighting or suffering its consequences of instability and lack of social services. Many of those daring to express an opinion against armed factions have been murdered. It also comes at the expense of the most vulnerable, such as migrants and refugees. There is no silver bullet. Revenge does not replace justice, but instead gives rise to new grievances. The situation in Libya is far more difficult to resolve now than it was in 2011.
What is needed is a political process that includes all segments of the Libyan society and results in a single, unified state. This will require the currently divided international community to unite and to insist on an inclusive solution.
Also needed is a Libyan national dialogue combined with transitional justice efforts to address grievances past and current. Only through such processes will many Libyans learn to trust that a new regime will be sufficiently different from the regime that they fought so hard to topple. Only then will they be convinced to lay down their arms. And only when the chaos in Libya subsides, will it become possible to find structural solutions to the dire situation of refugees and migrants who otherwise will continue to be victimized.