Peace, Security and the Rule of Law Reform in Libya

Mohamed Eljarh

Armed struggles usually happen due to the failure of a country’s legal and governing systems to protect rights of the people and punish perpetrators of human rights violations and other crimes. In Libya for example due to societal discrimination, corruption and abuse of power by law and government officials, and the security services in many cases, an armed conflict had taken place and it is hard to achieve reconciliation after the conflict. In short, Injustice drives people to take up arms and fight for their rights and protect them.
Currently in Libya the justice system is stand still, and if the new government is serious about the rule of law in Libya, it is crucial for them to assess how the justice sector actually worked in Libya before and during the conflict, and how it should function now if the rule of law is to take root in the new Libya. This is extremely complex process, but the longer the Libyan authorities ignore this important issue, the more catastrophic the results will be, and hence the longer the road to recovery. The Libyan authorities should have experts in place who can analyse the roles of the various key actors in the justice sector, judges, prosecutors, lawyers, court administrators, the police, prison officials, and ministries like justice, interior and defence, the chaos that is taking place in Libya now is due to conflict between these different actors, due to this conflict judges in Libya are on an on-going strike and have been for over 40 days, while the National Transitional Council is blinking the eye on the whole issue.
Rule of law was at the core of the February 17 Revolution. Hence, the new Libyan authorities need to activate International human rights law and the laws of war and establish the requirements for how the new Libya must treat people within its boundaries. The Libyan local law and the national legal systems must guarantee and protect international human rights. For modern Libya, monitoring the administration of justice must be a priority. Crimes of all sorts are being committed in Libya on daily basis (these are not systematic crimes), due to the dysfunctional legal system, and also due to the lack of monitoring and reporting on the human rights situation in Libya. Libya is required to re-establish the prison system and investigate violations of human rights and humanitarian law. Libya will also need to seek help to rebuild, reform and restructure the Libyan National Police, including vetting and certifying that its personnel have not committed grave human rights violations, and develop a coherent strategy for reform and institutional strengthening of the judiciary and assist with the restoration and maintenance of the rule of law, public safety and public order. These steps capture the main elements of the work on transitional justice and rule-of-law reform in a post-conflict Libya. Therefore, the Authorities are required to simultaneously deal with key institutions like the judiciary, police and prison services, and vetting personnel as a way to reform institutions while ensuring that armed groups particularly in Tripoli do not continue to wield power and act outside the law.
It is also essential to point out that there is an intimate connection between monitoring and institution-building/reform. While human rights must be investigated to verify whether the police, prisons and courts are operating properly, the primary aim should be to understand the strengths and weaknesses of the justice system so that any projects aiming at reform are based on a thorough understanding of actual practice, including on-going weaknesses and problems. Efforts to reform the justice system in Libya are doomed to failure unless the authorities know the strengths and weaknesses of the courts, police, prosecution and prison service, the influence practiced by the minister of justice over the appointment of judges, the root causes of corruption or the simple dysfunction of court administration.
Monitoring the administration of justice is also important as a way to test the new Libyan authorities’ good faith and intentions. For example, a consortium can present the authorities with an analysis of the justice system, highlighting specific problems. The consortium conducts numerous workshops for judges, prosecutors and the police, and hands out copies of the relevant laws (international and national) in Arabic.
Another important tool for rule-of-law is collaborations between national counterparts to consult each other and discuss what their own priorities and strategies should be. This course of national consultations, bringing together representatives of many of the institutions identified in this article, is one of the most useful and appropriate strategies and approaches for the new Libya in the post-conflict justice sector. Helping to identify and encourage local players who support reform is one of the core challenges for the new authorities. Building and empowering a national constituency for rule-of-law reform must be an early priority for any legislative and executive authority in Libya
As part of this national reform consultation, rule-of-law reform should encourage national counterparts to develop their strategy, including the sequencing of priorities. For example, questions relating to when to hold elections, how to implement different elements of peace and reconciliation, and when to apply transitional justice mechanisms like a truth commission, prosecutions for war crimes and crimes against humanity, or reparations to victims, will all require careful study and discussion. Ideally, the new authorities should set the strategy and priorities, with help, guidance and support from the experts in the field and the international community.
This will help answer the question of how best to sequence the reforms, which is always a difficult challenge for which there is no ready formula. One of the great paradoxes of rule-of-law work is that it takes time, yet time can often be the enemy, because on-going insecurity, lawlessness and corruption undermine all the democratic transition efforts in the new Libya. Strategic decisions also determine how money will be spent, so discussions of the budget for the rule-of-law sector and other sectors will shape policy and can also serve as a coordinating tool.
Rule-of-law reform requires political support. Ensuring that the general public understands the nature of the reforms reinforces the point that rule-of-law reform has a political dimension and political and procedural transparency is required at all times. Some people stand to lose if reform occurs. Power relations will change. Those used to controlling the police and using it to enforce their will, control the population or steal property will see reform as a threat, and so will those who have used the courts to ensure their economic or political dominance.
Done properly, rule-of-law reform will take years and require significant funding, but it is all worthwhile. Without rooting respect for human rights and the capacity to prevent violations in local institutions, all the money and effort expended by the new Libya will be wasted. Spreading the rule of law and deepening respect for human rights are now seen not only as the right thing to do, but also as central to durable peace and security in the post-conflict Libya. Mohamed Eljarh is a UK based Libyan academic researcher and political, social development activist. He is also co-founder and Public Affairs Director of the Libyan Academy for Creativity and Innovation. He is from the city of Tobruk in Eastern Libya. [Email: m.eljarh@yahoo.co.uk ]