by Akshaya Kumar
This Wednesday, May 9, Lawyers for Justice in Libya (LFJL) delivered an open letter signed by over 60 members of Libyan civil society to the National Transitional Council (NTC), the country’s interim governing body. The letter demands the repeal of two pieces of legislation and the amendment of a third, arguing that the NTC’s newly promulgated transitional justice measures undermine the nascent rule of law being established in the post-Gaddafi era. Warning that the vague and retaliatory quality of these laws are a “terrifyingly familiar echo” of Libya under dictatorship, the letter concludes “for us Libyans to be able to transition to a state that truly promotes responsible citizenship [...], accountability must be enshrined over impunity.” Echoing the argument advanced in the letter, Mark Kersten’s detailed post on the topic at Justice in Conflict evaluates the amnesties proposed in Law 38 and concludes that while a limited program might have had merits, the “problem” with the NTC proposal is that its blanket application excuses too much. Kevin Jon Heller at Opinio Juris reminds that these new amnesties evidence the need for the OTP to consider accusations of serious international crimes against the rebels, since “when it comes to accountability for the new Libyan government, it’s the ICC or nothing.”
The fact that Law 38 grants a broad amnesty for all acts “made necessary” for the “success and protection” of the February 17 revolution has gone unmentioned in Western media or by the United Nations mission in Libya, which has focused its recent advocacy efforts on allegations of torture in Misrata. When asked about Law 38, the spokesperson for the Secretary General was only able to say that he hadn’t “seen anything” on the subject. Notably, Amnesty International’s response emphasizes the restrictions on freedom of speech created by Law 37, but does not even mention the amnesties. Similarly, Human Rights Watch focuses its critique on Law 37′s provisions authorizing jail time for those who spread “rumors” or “news” that weakens “public morale” or hampers the “national defense.” Although unmentioned in the LFJL open letter, Human Rights Watch has also drawn attention to the NTC’s problematic proposed vetting measures, which could severely restrict the eligible candidates for the upcoming June elections.
Unquestionably, the limits on free speech outlined in Law 37, which criminalizes statements that “offends” the uprising, and Law 15, which prohibits open media discussion of fatwas, are problematic. Similarly, the aggressive vetting procedures being used by the new Integrity and Patriotism Commission could potentially impact the freedom and fairness of the upcoming electoral process. However, the absence of discussion about the political and legal viability of amnesties created by Law 38, particularly in the shadow of a pending ICC investigation and open questions of about complementarity, is undeniably curious. While neither of the two current ICC indictees, Saif al-Islam and Abdullah al-Senussi, will benefit from these new amnesties, the OTP can and should continue investigations into alleged crimes by revolutionary forces. In the event that those investigations lead to warrants against February 17 revolutionaries, these newly promulgated amnesties could help the ICC make the case that the charges are admissible despite the complementarity restrictions outlined in Article 17 of the Rome Statute.
Akshaya is completing studies for a concurrent JD from Columbia Law School and an LLM in Human Rights, Conflict and Justice from the School of Oriental and African Studies.