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From 15-24 January 2013, an eight-person team of experts from member organisations of the International Legal Assistance Consortium (ILAC) conducted an intensive review of numerous justice sector institutions in Libya. This review also examined several crosscutting issues facing the justice sector in the aftermath of the 2011 revolt.
The ILAC team found that the justice sector in Libya currently faces a variety of simultaneous challenges. Unquestionably, the two greatest – and interrelated – challenges are security and the fate of roughly 8,000 ‘conflict-related’ detainees still being held without charges or representation. The absence of security for justice sector personnel has led judges and prosecutors to indefinitely delay the processing of detainees’ cases. The continued confinement of these individuals in state-run and non-state prisons, often under harsh conditions, in turn exacerbates the sense of lawlessness that contributes to the lack of security.
At the same time, the justice sector faces the difficult task of dealing with allegations of significant abuses by revolutionary forces during and after the 2011 uprising. Imbued with ‘revolutionary legitimacy,’ anti-Gaddafi fighters are heroes to many Libyans, who are willing to overlook alleged excesses and even atrocities committed in the name of the Revolution. Victims, along with many in the international community, view the situation far differently, and decry the lack of prosecution of revolutionary wrongs. With irregular revolutionary forces still actively operating thought Libya, the lack of security has made addressing these issues both politically and personally dangerous for justice sector personnel.
The justice sector’s ability to act independently during the current transitional period is also degraded by its lack of legitimacy. This issue is complicated by the fact that the justice sector is both the object of transitional reform efforts, and the vehicle for the transitional prosecution of past abuses. Thus, any extensive vetting of justice sector actors (judges, prosecutors, People’s Lawyers, private lawyers) will significantly impact the system’s ability to process cases. Yet, as one interlocutor in the Ministry of Justice put it, “how can the same judges suspected of misbehaviour during the Gaddafi re- gime sit in judgment of alleged Gaddafi supporters?”
Another factor contributing to the justice sector’s lack of legitimacy is that the process of attaining full independence for many institutions remains incomplete. Structurally, full independence requires not only scrutiny of on-going links between the justice sector and the executive, but also a review of the legislation and practices affecting these institutions. This process is far from complete for the judiciary, prosecution, the Ministry of Justice, and the private Bar.
Justice sector reform in Libya faces numerous other issues. Despite Gaddafi-era propa- ganda, the status of women in the justice sector – both as professionals and members of the public seeking justice – raises significant concerns. Though women predominate at law faculties, they frequently comprise a small minority of judges, prosecutors, govern- mental officials, and active members of the private Bar. Few women hold positions of authority in these institutions. Additionally, Libyan legislation and government policies fail to effectively address issues of violence against women and gender bias.
Other issues arise from the fact that those responsible for implementing these reforms typically spent their working lives subject to the perverse ideology and informational isolation imposed during 42 years of control by the Gaddafi regime. This lack of exposure to internationally recognized concepts and practices is hampering the process of reform, and frustrating those who genuinely seek effective change.
Finally, the Libyan justice sector at present is struggling with a lack of coordination and communication between the various actors. Independent but co-equal institutions have not yet developed mechanisms for efficiently and effectively working together to serve a common public goal.
Efforts to create ad hoc judicial bodies to handle transitional justice in Libya such as the Fact-Finding and Reconciliation Commission (FFRC) are constrained by the lack of legislative clarity for their mission. Equally important, creating and training new ad hoc judicial, prosecutorial and defence institutions would be far more time-consuming than enhancing the capacity of existing structures. Given that the prolonged detention of thousands of ‘conflict-related’ detainees, and need to reach some resolution regarding offenses allegedly committed by revolutionary forces, delay to create a new system is not an attractive option. Thus, while ad hoc institutions may have a role in such matters as fact-finding or reparations to victims of human rights abuses, the ordinary courts provide the only existing system remotely capable of processing the existing prosecution caseload.
Based on these findings, the ILAC team developed a set of recommendations for use by Libyan authorities and international partners. These recommendations focus on concrete steps that can be taken in the near and medium term to advance rule of law reform in Libya. In part, these recommendations require action by Libyan authorities and institutions. Other recommendations contemplate joint programs, where inter- national partners can provide Libyan professionals with comparative insights, and allow the Libyan partners to develop Libyan solutions utilizing international experiences and expertise.
Ultimately, the shape and course of the rule of law in Libya is for Libyans to decide. The ILAC team was impressed with the professionalism and commitment of many Libyans involved in the reform effort. ILAC hopes that this assessment and the accompanying recommendations will assist Libyan reformers and their international partners in moving forward to develop the new Libya earned through the bravery and sacrifice of the Libyan people.
The Assessment Mission and Report were funded by the Swedish International Development Cooperation Agency (Sida).