Lost Justice: Across the Libyan desert, Shores and Depths of Central Mediterranean

Salah Marghani joins us for this contribution to the ongoing symposium on Libya and International Justice. Salah is a lawyer and human rights activist. From November 2012 – August 2014, he was Libya’s Minister of Justice. His efforts for justice and accountability were recognized by Human Rights Watch in 2012, which awarded him with the prestigious “Alison des Forges” Human Rights Defender Award. Make sure to check out HRW’s Hanan Salah’s piece over at Opinio Juris today as well.

Migrants struggle as a boat capsizes in the Mediterranean (Photo: CNN)

It was seemingly innocuous. On 2 February 2017, the Italian Government, supported by EU, prompted a Libyan UN-proclaimed Presidential Council or (GNA)[1], to sign a vaguely albeit smartly worded memorandum of understanding (MOU).[2] The clear objective of the MOU was to stem the flow of refugees and migrants across the Libyan sea frontier towards Italian shores. Under the cover of the MOU and on 26 July 26th2017, GNA leader Faiz Assarraj signed and presented to the Italian Premier in Rome a letter inviting the Italian Navy to enter Libyan territorial waters and to station elements in the seaport of Tripoli, with the declared aim to jointly patrol the Libyan waters to catch and return fleeing migrants.

By the end of 2017, in an almost unbelievable move, fiercely defended by the EU, the poorly equipped Libyan Port and Maritime Transport Authority claimed and notified the International Maritime Organisation (IMO) of a vastly extended exclusive Libyan Search and Rescue (SAR) region. The zone extended 76 Nautical Miles deep into the Central Mediterranean. The SAR declaration was clearly unjustified and in total disregard to endangered fleeing refugees and migrants afloat at sea. Smartly disguised in an innocent format, it was also patently in breach of humanitarian values. Libya is a country with almost no navy or real coast guard, a country enduring an ongoing civil war, with fractured governments and forces violently competing for power and wealth. Libya could hardly meet its obligations in such a huge SAR area, one which far exceeds the depths assigned to the real and fully equipped navies of Italy and Europe. Italy and EU went as far as calling off vital SAR operations under (Sofia) in the Central Mediterranean and assigning the same to the infamous Libyan Coast Guard.

The Assarraj Government and Coast Guard was directed by the Italians and the EU to confront International NGOs working to save the lives of refugees and migrants or who were taking them to safe ports. There were many incidents where lifesaving operations by NGO vessels were confronted and prevented from doing their work. Such harassment impeded NGOs, including MSF, Sea Watch and others. In some instances, refugees lost their lives as a result.

Lack of morality and illegalities

Italian Interior Minister (at the time) Matteo Salvini ordered the closure of all Italian seaports to all rescue vessels, causing havoc and many casualties. The Italian government, followed by Malta and other rather distant EU countries and aided by the Assarraj Government, are blocking the efforts of rendering assistance in total disregard to the safety of the lives of refugees and migrants as well as in breach of spirit of Article 98 UNCLOSand the SAR Convention. The Libyan Coast Guard, practically, directed by Italy under the current arrangement, are not only pushing for the disembarkation of any refugees fished at Libya Vast SAR region to unsafe Libyan ports where they are handed back to their original captors , it has effectively closed or severely impeded such disembarkation chances  to other safe ports in the region. Continue reading

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The Quest for Accountability in Libya: A Pressing but Neglected Concern

Kate Vigneswaran and and Vito Todeschini join JiC for their contribution to our ongoing joint symposium with Opinio Juris on Libya and International Justice. Kate is a Senior Legal Adviser, International Commission of Jurists, MENA Programme and Vito is an Associate Legal Adviser, International Commission of Jurists, MENA Programme. Links to all of the previous posts can be found here.

The trial of former members of the Gaddafi regime has sparked with concern about the integrity and fairness of Libya’s justice system (Photo: Ismail Zitouny / Reuters)

Accountability is typically absent from many discussions on Libya, despite the prevalence of gross human rights violations and crimes being committed on a widespread scale. Persistent political instability, resurgence of armed conflict and migrant “crisis” in Europe continue to obfuscate the urgent need to tackle past and ongoing human rights violations and abuses in the country.

The latest UN Human Rights Council (HRC) resolution on Libya on 22 March 2019, which preceded the outbreak of hostilities in April 2019, called on the Libyan authorities to “increase efforts to hold those responsible for crimes accountable.”This resolution is based on an apparent assumption that the Libyan criminal justice system can and does function effectively andis in a position to investigate, prosecute and provide remedies and reparation for crimes under international law committed in Libya. States and the International Criminal Court (ICC) also act based on a similar assumption or assessment. Indeed, the significant challenges impacting the fair administration of justice in Libya did not prevent the ICC from concluding that Libya had primary jurisdiction over Abdullah Al-Senussi, or States from engaging with Libyan authorities on issues related to the management of movement of migrants and refugees across Libya and to Europe.

As the International Commission of Jurists (ICJ) finds in its new report on the criminal justice system in Libya, such assumptions are unfounded. Simply put, the Libyan accountability framework is profoundly inadequate.

Despite a somewhat unified judiciary, in which judges and prosecutors operate under the authority of a single Supreme Judicial Council and apply the same Penal Code and Code of Criminal Procedure, current hostilities, insecurity and fragmentation in executive and legislative bodies mean accountability is unlikely to be achieved any time soon.

Courts are effectively non-functional in numerous places, with justice actors facing continuing intimidation, death threats and other forms of violence, in particular by non-state actors. As a result, there have been very few investigations and prosecutions of crimes under international law in Libya following the toppling of Gadhafi. In the very handful of cases that have been investigated and prosecuted, serious human rights violations have occurred, including violations of basic fair trial rights.

The case against 37 former Gadhafi-era officials, including Muammar Gadhafi’s son Saif Al-Islam and the former head of the intelligence service Abdallah Al-Senussi, both indicted by the ICC, is paradigmatic. The ICJ was able to obtain a copy of the judgement in the case, not yet made public despite being issued in 2015, which supports the findings by the United Nations Support Mission in Libya and the Office of the High Commissioner for Human Rights that the rights to liberty and a fair trial were violated. Many defendants were detained for up to two years without access to counsel or an independent judicial authority or being charged, and violations of the right to be tried in one’s presence, to a public hearing, to call and examine witnesses, and to be represented by a counsel occurred, impacting their ability to defend themselves effectively. For example, the accused were not permitted to examine Prosecution witnesses and were limited to two defence witnesses at trial. The Prosecutor and Court failed to investigate allegations of torture and ill-treatment; rather, information including statements of “confession” allegedly extracted through torture or other forms of coercion were admitted as evidence at trial. Continue reading

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It is More Dangerous than Ever: Chaos and Vigilante Justice in Libya

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!

Migrants sit outside of the Tajoura detention camp following an airstrike by militants (Photo: Reuters)

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. Continue reading

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Libya and International Justice: A Symposium

Libya and International Justice: A joint JiC and Opinio Juris Symposium

It isn’t for a lack of attention. Violence in Libya is covered almost daily in major newspapers and media outlets. Attacks on migrant camps, wanton executions of political prisoners (filmed a disseminated on social media), the thousands of refugees and asylum seekers perishing in the Mediterranean, and other acts of barbarity and violence, are widely known. Dozens of reports have been published on the subject, highlighting high levels of criminality, a widespread culture of impunity for international crimes, and a lack of recourse for those who seek accountability.

Yet there is no justice for these atrocities. There is no accountability for atrocities and human rights violations committed in Libya.

This status quo has resulted in the deaths and abuse of thousands of civilians. Many have demanded action and an end to impunity. But how can this be achieved? What options for justice and accountability are available and which would most appropriately address atrocities of the past and those that continue to be perpetrated?

Over the next week, JiC and Opinio Juris will host a symposium that delves into these questions and sheds light on ongoing atrocities and political violence waged in Libya. Contributors will outline why Libya finds itself in the violent political quagmire that it is in today. Options for justice that will explored include the creation of an independent investigative mechanism, additional action by the International Criminal Court (ICC) in the country, and political accountability for those entities and states that support actors on the ground known to commit international and transnational organized crimes. The pieces will explore what Libyan groups and factions as well as the international community can do to address injustices and how justice and accountability need to be prioritized if a sustainable solution to ongoing conflict in Libya is to be found.

Expert contributors to the symposium include:

Some posts will be available at both JiC and Opinio Juris, but the majority of the pieces will be posted at one or the other, so make sure to check in at both.

Of course, and as always, please do share your thoughts and views in the comment sections of the blog, on Twitter, or any other social media you use.

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A New Chapter: Off to Law School

If you squint, you can actually see McGill.

It was time to scratch that itch.

It is with great excitement that I announce a new chapter in my life and career: after ten years of pondering it, I have finally decided to go to law school. Beginning next week, I will be attending McGill University, where I will be enrolled in the school’s BCL / LLB programme. I’m thrilled to join a world-class department, to steep myself in both common and civil law, and to combine this new adventure with my continuing work in the field of international justice.

There are many reasons that I have decided to take on this new challenge in my career. As readers of JiC will know, I have studied and worked at the intersection of law and international criminal justice for the past ten years. However, I have always felt that there was something more that I could, and should, do. That something was to gain a greater understanding of the law and its practices, adding it to my career toolbox.

While I strongly believe this should not be the case, the reality is that even after years of working in international criminal justice, there are still some ‘rooms’ into which some of us are not invited or to which we do not have access, for the single reason that we are not lawyers. Law at various levels continues to exclude many people – including those whose rights it seeks to uphold. I remain frustrated and worried about the lack of fluency that exists among citizens around the world to the law and legal issues, often due to the fact that law often remains practiced through inaccessible jargon and verbiage. From the outset, this blog was an attempt to translate complex legal ideas and developments into an accessible format that wouldn’t require much, if any, expertise in international criminal law. Over the coming years at McGill, I hope to spend much of my time thinking about and working on how to continue translating key legal developments and subjects as well as working to decolonize international criminal justice.

I am particularly excited to gain a richer understanding of the fascinating and unique logic and forms of argumentation that exists within legal practice. At a time where the demand for global accountability far outweighs its supply, I want to look for creative ways to apply new skills and tools to issue areas of interest, including the linkages between transnational organized crimes and core international crimes and the nexus between migration and atrocity crimes. I would also like to explore the relationship between population flows, relevant laws, evidence collection, and global accountability efforts.

I sincerely hope that my decision does not suggest a belief that one cannot carve out a career in international criminal justice without a legal foundation. Let me stress: it is absolutely possible. My decision is not due to being ‘stuck’ and it does not represent a career-change. It instead reflects a desire to add new tools to a career in international justice and conflict resolution that I will continue in the coming years. My aim is to be fluent in both the politics of law as well as the law of politics.

This is just the beginning of a long journey, but rest assured that JiC will continue to publish the work of leading scholars and thinkers in global and transitional justice. In the next couple of weeks, the site will play host to a number of new articles as well as a symposium on Libya and international justice. Stay tuned! Continue reading

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Marginalization and Conflict – The Politics of Memory in Mozambique

Natália Bueno joins JiC for this guest-post on the latest battle for Mozambique’s politics of memory. Natália is a Postdoctoral Researcher Project CROME, CES-University of Coimbra. 

Landmines were used extensively during Mozambique’s civil war (Photo: Skoll)

Troubling news has dominated media coverage in Mozambique in recent months. The devastating impact of Cyclones Idai and Kenneth, former Finance Minister Manuel Chang´s extradition stalemate, and difficulties in voters’ registration have dominated the news cycle. In the midst of such urgent matters, the verbal attack of the member of parliament Alice Tomás from the ruling party Frelimo against the activist and researcher of the NGO Centro of Integridade Pública(CIP), Fátima Mimbirewas, was also in the news. Why? Because in Tomás’ reply to a Facebook post made by Mimbire, she argued that the activist deserved no less than “to be raped by 10 strong men”. In case the reader has not guessed yet, Mimbire’s post pertained to Afonso Dhlakama, the former leader of the opposition Renamo party; or more precisely, it was a post in which she raised questions about Mozambique’s national heroes and whether or not Dhlakama deserved to be part of this select club. Mimbire attacked the very heart of Frelimo’s politics of memory: the reproduction of a narrative in which its members are the saviors of the country and, therefore, the ones to be remembered. To include Dhlakama in such a club would either call this narrative into question or lead to its fundamental revision.

First things first. For 38 years, Dhlakama was the number one of the National Mozambican Resistance (Renamo), Mozambique’s second political force and former guerrilla movement. He had shortly joined the movement in 1976 when he became its leader following the death of André Matsangaíssa in 1979. Considering that the civil war between the Mozambique Liberation Front (Frelimo) and Renamo lasted for almost sixteen years (1977-1992), Dhlakama commanded Renamo nearly for its whole duration.

The number of war-related deaths from the civil war was close to one million. In addition, 1.5 million were forcibly displaced and made refugees in the neighboring countries due to the horrors of the war. According to UNICEF estimates, 90 percent of the population was living in poverty and 60 percent living in absolute poverty by the early 1990s. Against this backdrop, no one could argue that the war had not left Mozambique in shatters. Disagreement was reserved for ascertaining the root causes of the war.

On the one hand, Frelimo’s authorities portray the civil war as an extension of the war of external aggression, initially led by Rhodesia, and then continued by the Apartheid regime in South Africa; or, in a simpler way, a war of destabilization. On the other hand, in characterizing the civil war as a battle for democracy, Renamo emphasizes the internal element of it, namely as a violent response triggered by Frelimo’s post-independence authoritarian regime and repressive policies. Boiling down these understandings, if one agrees with Frelimo’s interpretation of events, Dhlakama should never be considered a national hero. Conversely, if one puts themselves on Renamo’s side, Dhlakama surely deserves a spot in the pantheon of heroes as the “father of democracy”. Continue reading

Posted in Memorialization, Mozambique, Politics of Memory | Tagged | Leave a comment

Launched! The Dakar Guidelines on the Establishment of Hybrid Courts

The Dakar Guidelines on the Establishment of Hybrid Courts

Look ma, we made something useful!

I am beyond excited (and proud) to announce that my colleague and friend Kirsten Ainley and I have published the Dakar Guidelines on the Establishment of Hybrid Courts! They can be found, in full (and for free), here.

Here is the gist of what the Guidelines offer:

The goal of the Dakar Guidelines is to provide a reference guide on the establishment of hybrid courts. As such, the Dakar Guidelines do not represent a roadmap, nor are they a best practices manual. Rather, the Guidelines offer national, regional, and international actors involved in the establishment of hybrid tribunals a set of key decision points and design options that should be considered when establishing and running a hybrid court. The Guidelines are particularly tailored to two purposes: (1) to highlight issues that have proven complicated or had long-term implications for past hybrid courts and so should be given special consideration in the design phase, and (2) to suggest design components that may increase the resilience of the court (i.e., the court’s own capacity to act independently and to resist political, financial, and other pressures), and the resilience of affected communities through engagement with the court. They further offer interested observers, academics, researchers, and students a comprehensive and coherent study of the hybrid court model. They are, in short, a practical set of guidelines on the establishment of hybrid tribunals meant to be of utility to a broad array of constituencies.

The Dakar Guidelines are an output of the Hybrid Justice Project. The project, which is a product of its members’ interest in the intersection between international criminal law and international relations, focuses on hybrid courts and resilience. Resilience in this context refers to the ability of hybrid courts to withstand political and other pressures in order to deliver justice and account- ability, while also bolstering the resilience of affected communities. The interest of the project in hybrid courts is thus not on the traditional focus of efficiency, rates of convictions, prosecutorial strategies, or the value for money that hybrids offer. Rather, its interest is in the design options available to the creators of hybrid tribunals as well as how their design affects the resiliency of these institutions.

The issues arising when designing a court are complex, and the Guidelines endeavour to outline the choices available and to explain their advantages and disadvantages in different contexts. The Guidelines do not propose a single model to fit all situations. This is not a checklist or a box-ticking exercise. The Dakar Guidelines offer a series of lessons learned, questions to ask, and recommendations based on prior experience. In each section of the Guidelines, we discuss the design choices to be made, their implications and, in many sections, recommendations. These recommendations are based on extensive research, the experience of the practitioners who have been involved in drafting the Dakar Guidelines, reports by courts, legal practitioners and civil society organisations, and academic literature.

The Guidelines are the product of over two years of work and research. We are indebted to a brilliant team of drafters with whom we have been working since our first meeting in Dakar in the summer of 2017: Philipp Ambach, Fidelma Donlon, Elena Baylis, Tiya Maluwa, and Angela Mudukuti. For their indispensable contributions and support, thanks also go to Stephen Rapp, Dov Jacobs, Sareta Ashraph, Maddalena Procopio, Claire Wilmot, Kelly-Jo Bluen, and Hanna Rodehau-Noack. Finally, none of this would have been possible without the unflappable encouragement and support of the Wayamo Foundation and the LSE Institute of Global Affairs.

The Dakar Guidelines can be found and downloaded here. They were part of a larger project on Hybrid Justice. For more, see our website here.

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