The ICC Is Indispensable to Libyan Reconstruction

The expedited decline of Muammar al-Qadaffi’s regime in Libya has turned the international community’s gaze to the reconstruction of the failed Libyan state. Four decades of autocratic rule have undermined the foundations of Libya’s political economy, including basic institutions of governance, economic development, and the rule of law. The Transitional National Council (TNC) has made encouraging progress in the past several days, prioritizing democratization processes, constitutional development, and strengthened water and medical distribution networks.

The post-conflict reconstruction process has reignited an essential debate among transitional justice advocates: Do international criminal prosecutions foster peace or justice? For the indictment’s detractors, the Tripoli Three’s indictment will only serve to prolong waning tensions between Qadaffi loyalists and rebel forces, as the looming ICC arrest warrant gives the former dictator little incentive to surrender. However, this perspective fails to account for the long-term benefits of international criminal prosecutions in post-conflict situations and the ICC’s role in crafting a path for the rule of law and institutional development in post-conflict Libya.

Despite the TNC’s initial progress on democratization and basic provision distribution, the institutional framework for post-conflict justice remains elusive. During the early days of Libya’s civil war, the UN Security Council referred the situation in Libya to the International Criminal Court (ICC). Following a three-month investigation, ICC Prosecutor Luis Moreno-Ocampo announced the indictment of three members of the Libyan leadership for crimes against humanity: Qaddafi himself, his son Saif al-Islam, and Libyan intelligence chief Abdullah al-Sanussi.

According to the ICC investigation, the so-called “Tripoli Three” bear the greatest responsibility for atrocities during Libya’s civil war. As the sole permanent body of the ever-growing international criminal legal institution, the ICC occupies a unique place in Libya’s conflict resolution and reconstruction efforts. While the Court frequently conducts public, grassroots outreach efforts in tandem with trial proceedings, the ICC’s “greatest responsibility” offers little tangible justice for conflict-affected populations on a micro-level. Instead, the indictment of the Tripoli Three functions as the first (symbolic) indication of accountability in 40 years of poor governance.

With Qaddafi still at large, and Saif al-Islam roaming the streets of Tripoli, the future of the Tripoli Three’s indictment remains uncertain. The TNC leadership has insisted that Qaddafi, if and when he is captured, be put on trial in Libya. In the absence of formal justice institutions, this goal seems unfeasibile. TNC leadership has demonstrated its interest in crafting Libyan solutions to the country’s post-conflict shortcomings, with limited international guidance. However, the ICC indictments — and the complementary nature of ICC proceedings — provide an added incentive for the TNC to invest in justice-sector development. The ICC’s complementarity principle will adopt a complex interplay with the TNC’s justice capacity-building efforts, spurring a sustained commitment to the rule of law’s institutional foundations.

Justice and the rule of law will be an essential component of post-Qaddafi Libya’s political development. The TNC has initiated reprisal killings against African migrants in Libya, under the allegation of mercenary activity.

Accountable justice institutions are necessary to ensure that such killings do not continue, and to restrain Qaddafi loyalists’ violent excesses. The TNC’s leadership and complementary cooperation with the ICC are crucial to this initiative’s success.

The nature of international criminal justice restricts the ICC’s utility in post-conflict Libya. The ICC can address a limited sub-section of justice issues as Libya attempts to reconstruct its broken state institutions. The challenge of economic justice, redresses for structural violence, and prospects for reconciliation have little to do with the ICC’s case against the Tripoli Three. However, where a historical and political reckoning with the Qaddafi regime’s policies is concerned, the ICC has an indispensible place in post-conflict reconstruction.

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