The Challenge of Prosecuting Conflict-Related Gender-Based Crimes under Libyan Transitional Justice.

• Author: Zawati, Hilmi M.

1. Introduction II. Gender-Based Crimes and Transitional Justice in Libya 1. Gender-Based Crimes as a Weapon of War a. Rape Accounts b. Challenges Facing the Victims 2. Libya's Project for Transitional Justice and Peace-Building III. Wartime Rape Under Libyan Laws 1. Laws of the Transitional Period 2. The Libyan Penal Code 3. Libya's Obligations under Domestic and International Law to Prosecute Alleged Conflict-Related Gender-Based Crimes a. Obligations under Domestic Law b. Obligations under General Concepts and Principles of International Criminal Law c. Obligations under International Humanitarian Law d. Obligations under International Human Rights Law IV. The Dilemma of Prosecuting Gender-Based Crimes Under Libyan Transitional Justice 1. Legal Impunity and Lawlessness 2. Rule of Law v Militia Justice 3. Lack of Security and Public Order 4. Lack of Democratic Institutions V. Transitional Justice v Retributive Justice: Key Mechanisms for Gender-Sensitive Transitional Justice in Libya 1. Legal Justice System Reform 2. Gender Transitional Justice as Restorative Justice: Libyan Truth and Reconciliation Commission 3. Accountability Mechanisms: Who Has Jurisdiction over Libya's Gender-Based Egregious Crimes? VI. Conclusion "We as Libyans cannot begin Saif's trial. There is no central power to prosecute him." (1)

   --Ahmed al-Jehani, the Libyan Coordinator for the ICC

1. Introduction

   In the recent Libyan armed conflict, as well as in most internal and international wars, civilians, particularly women and children, have formed the primary target for all forms of sexual violence--best expressed as conflict-related gender-based crimes. (2) These crimes have been systematically conducted on a large scale against both Libyan women and men as a weapon of war with the intention of damaging the fabric of Libyan society, driving a wedge between families and tribes, and undermining Libyan social and community cohesion.

   Addressing wartime rape and other forms of sexual violence at the outset of any Libyan truth and reconciliation campaign would help ensure a durable peace, amnesty, transparency, and accountability among Libyan communities and tribes. (3) Failure on the part of the Libyan government and the General National Congress to restore justice and build peace may well trigger cycles of revenge and place the whole country on the horns of a dilemma.

   However, in the aftermath of internal conflict and civil war, which usually result in mass violence and gross human rights violations, transitional justice must be an essential element and an integral component of any political or legal process that aims at achieving conflict resolution and peace-building. (4) To ensure accountability, establish equity, make justice and achieve reconciliation, Libyan transitional justice should involve a full range of socio-legal mechanisms that would help the Libyan people deal with widespread or systematic human rights violations, particularly conflict-related gender-based crimes committed by all parties to the conflict. (5) Ultimately, transitional justice has to be constituted of different measures and processes, including criminal justice, truth-seeking and reconciliation commissions, reparations to victims, and institutional reforms. (6)

   This article argues that the incompetence of the current Libyan transitional justice system, manifested in its failure to respond adequately to conflict-related gender-based crimes, impedes access to justice for victims, encourages the culture of impunity, and leaves the Libyan peace-building process open to the danger of collapse. Accordingly, this analysis deals with gender-based crimes in a war setting as a case study and with transitional justice as a combination of a variety of socio-legal approaches to provide both victims and perpetrators with a sense of justice. (7)

   In another work, the author defined the term "gender-based crimes" as those crimes committed against individuals based on socially constructed norms of maleness and femaleness, while sexual violence is a subset of these crimes. (8) In this connection, Article 1 of the Declaration on the Elimination of Violence against Women states that violence against women "means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." (9) The 1995 Beijing Declaration and the Platform for Action expanded this definition to incorporate gender-based crimes and other violations of women's rights in a wartime setting, including systematic rape, sexual slavery, forced pregnancy, forced sterilization, coercive/ forced use of contraceptives, and forced abortion. (10)

   In addressing the above argument, this research study examines four overarching themes, which emerge in the course of the following sections. The first deals with Libya's conflict-related gender-based crimes and transitional justice. It focuses on gender-based crimes as a weapon of war in the recent Libyan Civil War conducted by both government forces and paramilitaries and to a lesser degree by rebel fighters. It also examines Libya's project of transitional justice and peace-building process. The second section reviews wartime rape crime under Libyan laws. It looks into the laws adopted by the Libyan National Transitional Council (NTC) before the handing over of power to the elected General National Congress (GNC) on 8 August 2012 and into Libyan Penal Law and its amendments. Finally, this section affirms Libya's obligations under the norms of international law to protect victims and prosecute alleged gender-based crimes.

   The third part of this analysis underlines the dilemma of prosecuting gender-based crimes under Libyan transitional justice. It brings to light four major obstacles to adequately addressing gender-based crimes under the Libyan transitional justice system, including legal impunity and lawlessness, lack of the rule of law v. militia justice, absence of security and public order, and lack of democratic institutions. Finally, this study scrutinizes three key mechanisms for gender-sensitive transitional justice in Libya, involving urgent reform of the justice system by incorporating the international crimes listed in Articles 6-8 of the Rome Statute of the International Criminal Court (ICC) into the provisions of the Libyan Penal Code, establishing an unprejudiced truth-seeking and reconciliation commission to investigate and address gender-based crimes committed by all parties to the recent civil war in Libya--including those committed by rebel brigades during and after the war--and finally setting up a Libyan special court as a hybrid judicial system for legal accountability similar to the systems founded in Sierra Leone and Cambodia. Finally, this inquiry concludes by elucidating the findings of the above sections and answering the question of what must be done to improve Libyan transitional justice so as to adequately address gender-based crimes and end the culture of impunity.

2. Gender-Based Crimes and Transitional Justice in Libya

   In order to grasp fully the two main components of this study--conflictrelated gender-based crimes and the Libyan transitional justice system--it is necessary at the outset of this work to briefly discuss the horrific use of wartime rape and other forms of sexual violence by all parties to the Libyan civil war, whether during or after the conflict, and its damaging impact on the fabric of Libyan society, on the one hand, and the role of the Libyan transitional justice system in addressing the needs of the victims--regardless of their tribal or political orientation--restoring justice, and building peace, on the other.

   1. Gender-Based Crimes as a Weapon of War a. Rape Accounts:

      (i) Rape of Libyan Women and Minors

      It has been largely reported that thousands of Libyan women, children and men were drafted for different forms of conflict-related gender-based crimes conducted by both government forces and militias, and to a lesser extent by rebel fighters during and after the conflict, (11) whether at the victims' homes or in detention centres for the purpose of extracting information. (12) These crimes included systematic mass rape, gang rape, (13) sexual torture, (14) sexual enslavement, (15) sexual terrorism, gender-based persecution, male rape, (16) and forced nudity. (17) Investigations revealed that Qadhafi himself had ordered that a supply of anti-impotence drugs be given to his soldiers and mercenaries and that he had authorized them to deliberately rape Libyan opponent women in a brutal, continuous, and widescale campaign. (18) Despite uncertainty about the exact numbers and locations of Libyan rape victims, and the difficulty of investigating allegations of sexual violence conducted during armed conflict, high-ranking officers in the Libyan Revolution's Military Council have affirmed that Libyan rebels found cellphone pictures and videos of rape, (19) as well as condoms and Viagra in the vehicles and uniform pockets of Qadhafi loyalists who were captured on the battlefield. (20) Accordingly, these attacks constituted crimes against humanity, as they were widespread and reportedly inflicted upon the civilian population, with knowledge of the reason for the attack. (21)

      (ii) Rape as a Strategic Weapon of War

      Utilising rape as a political weapon of war was not a strategy unique to undermining Libyan society. It was carried out in the civil wars of the 1990s that took place in the former Yugoslavia, Rwanda, Sierra Leone, and in other war zones around the world. What makes the Libyan case different is the patriarchal and conservative nature of Libyan society, which holds women's chastity and honour as among the most highly regarded of values. For this reason, wartime rape has caused severe damage to the social foundations of the...