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

By Zawati, Hilmi M. | Journal of International Law & International Relations, Winter 2014 | Go to article overview

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


Zawati, Hilmi M., Journal of International Law & International Relations


  I. 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

I. 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. …

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