Libya’s National Transitional Council (NTC) warmly accepted the international community’s military and political support for dislodging the Qaddafi government, and vowed to build a new state that would respect human rights. But it seems to be veering off course. Not only is it rejecting international human rights monitoring and the ICC’s jurisdiction, but more troubling still, it has passed some shockingly bad laws, mimicking Qaddafi laws criminalizing political dissent and granting blanket immunity to any crimes committed in "support" of the revolution.
The NTC has a lot on its hands, and building a new administration from the ground up is no small feat. Its biggest challenge has been asserting authority over the armed groups in most towns, villages and city neighborhoods who are responsible for most abuses in post-Qaddafi Libya. The militias hold about 5,000 of the country’s roughly 8,000 detainees. Some have been held for up to a year, outside Libyan law, without any charge or judicial process. Numerous cases of torture and even deaths in custody have been documented.
In Misrata, militias have terrorized the people of nearby Tawergha for their perceived loyalty to the Qaddafi government. Misrata militias have arrested Tawerghans, tortured and killed some in custody, and blocked about 30,000 people from returning home. In March, a United Nations Commission of Inquiry on Libya described these abuses as "serious violations, including war crimes" and, incredibly, crimes against humanity — and urged ongoing monitoring by the U.N. Human Rights Council.
But when the council met to consider the report, Libyan government representatives in Geneva adamantly rejected any proposed language in a resolution (named "Assistance to Libya in the Field of Human Rights") that would urge the government to address the abuses the Commission of Inquiry documented — by releasing those arbitrarily detained and ensuring fair trials, for example, or allowing U.N. monitoring. The Libyans were delighted to accept "technical assistance," though.
The United States and several European Union states vetoed these proposals as well, eager to prove the Libya military intervention a success, and effectively turned a blind eye to the country’s current serious human rights problems. The Friends of Libya relied on the international Responsibility to Protect to justify intervening in Qaddafi’s crimes against humanity, but now ignore it when those committing the crimes are the militias they supported last year.
Libya’s NTC had a similar about-face in its apparently short-lived commitment to international justice. When fighting a civil war last year, it applauded the U.N. Security Council’s referral of Libya to the International Criminal Court (ICC), welcomed the arrest warrants for Qaddafi, his son Saif al-Islam, and his intelligence chief Abdullah Sanussi, and pledged full cooperation. But it seems that Libya’s new rulers have no more use for the court.
The government has yet to hand over Saif al-Islam and appealed a recent decision by the ICC judges asking Libya to surrender him. Instead it seeks to persuade the ICC that, although a Zintan militia has held Saif al-Islam without judicial review since his capture in November 2011, the NTC will give him a fair trial. It has also insisted that Mauritania hand over the captured Sanussi for trial in Libya. If the government refuses to comply with the ICC’s order, it will be hard to avoid the conclusion that the NTC merely used the ICC as a political tool against Qaddafi, rather than as a tool of justice for the citizens of a nation long deprived of independent courts.
It is also hard to avoid the conclusion that while the NTC has talked a good game about human rights, it’s commitment to free expression and dissent is in doubt. Almost a year ago, the NTC passed a "constitutional covenant" pledging to respect human rights treaties, freedom of expression, and political pluralism. But it has proceeded to pass laws that have no appreciation for what these ideas actually mean.
In a crude cut-and-paste of Qaddafi’s penal code, this month the NTC passed Law 37, criminalizing "insults against the people of Libya or its institutions" and criticism of the 2011 revolution or glorification of its deposed leader. (Article 195 of the Qaddafi code in turn criminalized criticizing his 1969 revolution). In a similar vein, the NTC’s regulations ban any candidate who may have opposed the recent revolution or "glorified" Qaddafi.
And despite a stated commitment to establishing respect for law and an end to impunity, the NTC has instead delivered Law 38, granting blanket immunity for criminals, if they committed crimes for the good of the revolution, and barring suits against them. Effectively, this means that there will never be any investigation or prosecution of militia members who apparently executed dozens of detained pro-Qaddafi forces and supporters, and drove out entire communities perceived as loyal to him. These are hardly reassuring developments for the rule of law in the new Libya.
Some Western officials say that Libya’s transitional authorities need a break after four decades of Qaddafi and months of harsh conflict. Many Libyan officials echo this claim, calling for "space" and "understanding." But it is exactly things like human rights monitoring and pressure to respect international legal obligations that will help Libya’s transition. Giving Libya a pass during the transition is a recipe for more problems down the road.
Sarah Leah Whitson is Middle East and North Africa director at Human Rights Watch.