Beyond Revolution: Ending Lawlessness and Impunity during Revolutionary Periods

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Abstract: In early 2011, mass protests erupted throughout Libya, political elites defected to form the resistance National Transitional Council, and the international community eventually intervened in the conflict. The result was the ouster of long-ruling leader Muammar Gaddafi and the beginning of considerable political change in Libya. Following the Gaddafi regime's overthrow, the regional militias that displaced Gaddafi refused to surrender arms to the interim government and continued to perpetrate illegal detentions, displacements, rapes, and summary executions. This Note assumes that events in Libya constitute an ongoing revolution, and places the violent episodes associated with it in a historical tradition of violence inherent in revolutionary periods. While revolutionary violence may be politically justifiable ex post, it is no longer legally justifiable given the network of international and regional law. Given this, interim Libyan leaders and their successors should ensure that both revolutionaries and former Gaddafi supporters are held accountable for their crimes. A hybrid approach, starting with a truth commission with eventual limited prosecutions, is the best way to bring a stable peace to Libya.

Introduction

On October 20, 2011, Colonel Muammar el-Gaddafi,1 Libya's self- designated "leader of the revolution," became the victim of a different revolution: the Libyan revolutionaries that ousted him from power also ended his life.2 Many Libyans rejoiced at the prospect of a new begin- ning after Gaddafi's oppressive forty-two-year reign.3 Western leaders, including U.S. President Barack Obama, also welcomed his downfall.4 Some, however, voiced concern.5 Official reports from the National Transitional Council (NTC) initially stated that Gaddafi had been killed in cross-fire, an assertion belied by the videos and photographs that would surface in the hours following his death.6 Videos depicting Gad- dafi at the time of his capture by militants, bleeding and apparently beaten, later showed him dead with a close-range bullet wound.7 The NTC now faces crucial choices about how to come to terms not only with the Gaddafi regime's crimes, but also subsequent acts attributable to anti-Gaddafi revolutionaries.8

Part I of this Note provides a background on the conditions in Libya during the conflict. Part I also tracks events leading up to the present, oudining Libya's continued revolution, in which it experiences spasms of violence similar to other modern revolutions. Part II exam- ines relevant international and regional law in the context of the Lib- yan revolution. Part III argues that while ex post political justifications for anomic revolutionary behavior-the idea "that all must be permit- ted to those who act in the revolutionary direction"9-may still exist, a legal justification does not, given established regional and international law. Part III concludes that Libya and the international community should hold both sides of the Libyan conflict accountable for their ac- tions. They can best do so through a hybridized truth commission10 and trial approach, as has been used in other settings.

I. Background

A. Conditions in Libya During the Conflict and Immediately Following Gaddafi's Death

1. Conditions During the Conflict Prior to Gaddafi's Death

February 17, 2011 marked Libya's "day of revolt," in which large- scale protests erupted throughout the country.11 Gaddafi's forces re- sponded to these protests by using snipers, helicopters, and artillery on the crowds.12 Amid the protests, rebel fighter militias began to advance, only to be repelled by the 111 nan military and Gaddafi's threat to root out protesters "alley to alley, house to house."13 Concerned with the Gaddafi regime's gross human rights violations against civilians, the United Nations (UN) Security Council adopted a resolution imposing a no-fly zone over Libya.14 Fighting continued for months, with rebels ad- vancing throughout the country, taking Tripoli in August 2011, and go- ing on to attack the pro-Gaddafi strongholds of Bani Walid and Surt. …