As Eid al-Fitr draws to a close, the rebel forces that now control Libya are preparing for their final assault on Sirte -- Gadhafi's home town. Sirte's pending fall will have lasting symbolic impact as the final nail in the coffin of the Gadhafi regime, but the assault will also undoubtedly be a source of leverage among the array of bargaining chips the National Transitional Council (NTC) is deploying not only against the remnants of Gadhafi's regime, but in a different way against the governments controlling frozen Libyan government assets.
Given the many months of fighting, Libya is now in dire need of funds to start to rebuild the country's tattered infrastructure, restore basic services, and renew the flow of goods to its people. Releasing funds to the NTC would also help establish a foundation of legitimacy among the Libyan people toward NATO nations, who may otherwise come to see NATO as more concerned about gaining access to the country's oil wealth than ensuring the Libyan people's welfare. But the release of funds might also help persuade Brazil, China, Russia, and the African Union -- among a host of Gadhafi's sympathizers -- to agree to the recognition of the NTC as Libya's de jure government.
The NTC is now struggling to produce a roadmap for the country's transition to democratic rule that includes the convention of a national congress, a revision of the existing Libyan constitution, an interim chief executive, and elections. Infighting among the NTC, and between it and residual elements of the Gadhafi regime, will eventually result in the selection of a transitional leadership that must grapple with the same fundamental challenges both Tunisia and Egypt are addressing: how to establish a functional democracy in a country which has no history of it. This raises a host of questions, among them:
- Can the NTC hope to craft a functional democracy without external assistance?
- To what extent, and up to what boundaries, might humanitarian and multi-governmental intervention push Libya to succumb to the down side of "donor-driven justice" (i.e. over-reliance on funding sources/governments)?
- Can a path toward democracy be achieved while simultaneously eradicating radical political influences that may taint the process?
Clearly, Libya must move swiftly to transition from the rule of Gadhafi to the rule of law. As was the case in post-Saddam Iraq, there may well be a surge of sectarian violence and criminal activity in the interim. The NTC will need to use all of the tools in its post-conflict toolkit to help ensure a meaningful transition from war to peace. It may be well advised for the NTC to draw lessons from the South African Truth and Reconciliation Commission and from the transitional frameworks of the Northern Ireland peace accords. Lessons may also be drawn from the swiftness with which the Kosovo Liberation Army became assimilated into the civilian police force.
At the core of any lessons to be drawn is the necessity of transitional and international criminal justice. The deployment of transitional justice -- as opposed to ordinary justice -- usually takes the form of international criminal and 'hybrid' courts and tribunals. The rise of international and hybrid courts - 'hybrid' because they are courts of mixed compositions of international and domestic actors -- is nothing new. The model tribunal, at least in recent history, is the International Criminal Court under the Rome Statute.
These criminal courts are important components of every post-conflict reconstruction toolkit; the act of sentencing individuals who were complicit in the outrages of the past exposes the illegitimacy of the previous regime. Leafing through the court transcripts of the greatest trials of modern history will likely spur the NTC to follow these lines. General Douglas MacArthur was accused of handing down 'victor's justice' when he set up the Tokyo tribunals in the aftermath of World War II. This is an accusation the new Libyan government will inevitably be forced to address.
The need to hold accountable those individuals most responsible for the commission of complex crimes -- including war crimes and crimes against humanity -- is urgent, and will go a long way toward helping eradicate the past while painting a path toward the future. Specialized criminal courts and truth commissions are almost always set up in post-conflict settings where the conditions of the local justice system cannot cope with the large-scale efforts to bring the perpetrators of crimes against humanity to justice. The interim government and its successor should explore existing models of transitional governance, namely, (i) the "clean break" model (e.g. post-war Germany and Japan), (ii) the incremental model (e.g. Central and Eastern Europe), and (iii) the multi-staged South African model.
As Professor Jose Alvarez, a leading scholar of international law, points out, there are benevolent objectives in the establishment of every war crimes court: (a) deterrence; (b) atonement of perpetrators and honoring the dead; (c) material and psychological restoration, or the social healing of wounds; (d) sublimating revenge into peaceful settlement; (e) restoring the rule of law; (f) truth-telling and memorializing barbarism to prevent its recurrence; and (g) restoring lost civility of torn societies and national reconciliation. The establishment and functioning of the adjudication process and criminal courts in transitional societies can have a profound effect on the constitutional legitimacy of both the incumbent and discredited regime.
In judging the sins of the past there ought to be a balance between vengeance and forgiveness. The challenge for the NTC will be to encourage a spirit of forgiveness among a population that has longed for vengeance for more than 40 years. Hints of what may be coming in that regard have already started to appear. In the spirit of Ramadan, Sheikh Mabruk -- who has become famous among the rebels for making anti-Gadhafi speeches -- recently said that Gadhafi loyalists who had "lost their way" should be treated with mercy in accordance with the law. "Everyone makes mistakes, even us," he said. "Join your brothers. We are all Muslims."
*In selecting the title, the authors wish to acknowledge and borrow from Dean Martha Minow's book, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, (Beacon Press, 1999).
Edsel Tupaz is a professor of international and comparative law, based in Manila. His expertise lies in comparative constitutional law, trade and development law, and court systems design. Mr. Tupaz is a graduate of Harvard Law School and Ateneo Law School. He can be followed on Twitter : http://twitter.com/edseltupaz.
Daniel Wagner is CEO of Country Risk Solutions, a political risk consulting firm based in Connecticut (USA) and author of the forthcoming book Managing Country Risk (CRC Press, 2012 - www.managingcountryrisk.com). He can be followed on Twitter at: http://twitter.com/countryriskmgmt.