By Nigel Ash.
Tripoli, 19 May 2013:
The continued illegal detention of some 8,000 people is making worse a sense of lawlessness in . . .[restrict]Libya and contributing to the lack of security, claims a new report prepared by an international group of lawyers.
An eight-man team from the International Legal Assistance Consortium (ILAC) spent ten days here in January, conducting what it describes as “ an intensive review of numerous justice sector institutions in Libya”.
It concludes “Unquestionably, the two greatest – and interrelated – challenges are security and the fate of roughly 8,000 ‘conflict-related’ detainees still being held without charges or representation”.
The report suggests that personal safety concerns on the part of lawyers and the judiciary have contributed to the delays.
“The absence of security for justice sector personnel has led judges and prosecutors to indefinitely delay the processing of detainees’ cases.
“The continued confinement of these individuals in state- run and non-state prisons, often under harsh conditions, in turn exacerbates the sense of lawlessness that contributes to the lack of security.”
The report is equally critical of the legal system’s failure, not least because of fear, to deal with allegations of abuses committed by revolutionary forces during and after the conflict.
“Imbued with ‘revolutionary legitimacy,’ anti-Gaddafi fighters are heroes to many Libyans, who are willing to overlook alleged excesses and even atrocities committed in the name of the Revolution.”
It continues: “Victims, along with many in the international community, view the situation far differently, and decry the lack of prosecution of revolutionary wrongs. With irregular revolutionary forces still actively operating throughout Libya, the lack of security has made addressing these issues both politically and personally dangerous for justice sector personnel.”
The ILAC team also concluded that the ability of the courts to act independently was degraded by their lack of “legitimacy”. They were themselves the object of transitional reform while being expected to prosecute past abuses.
“ Thus, any extensive vetting of justice sector actors (judges, prosecutors, People’s Lawyers, private lawyers) will significantly impact the system’s ability to process cases”.
The report notes that one unnamed official at the Ministry of Justice said to the ILAC team during their visit: “ How can the same judges suspected of misbehaviour during the Qaddafi regime, sit in judgment of alleged Qaddafi supporters?”
Legitimacy is also compromised by a lack of autonomy.
“ Structurally, full independence requires not only scrutiny of on-going links between the justice sector and the executive,” says the report, “but also a review of the legislation and practices affecting these institutions. This process is far from complete for the judiciary, prosecution, the Ministry of Justice, and the private Bar.”
Moreover, those with the job of reform have typically spent their working lives “subject to the perverse ideology and informational isolation imposed during 42 years of control by the Qaddafi regime.
“This lack of exposure to internationally recognised concepts and practices is hampering the process of reform, and frustrating those who genuinely seek effective change.”
The report concludes that Libya is struggling with a lack of co-ordination and communication between players in the justice system.
The ILAC team also note that despite Qaddafi-era propaganda, the role of women in the courts, both as professionals and those seeking justice, raises significant concerns.
“Though women predominate at law faculties, they frequently comprise a small minority of judges, prosecutors, governmental officials and active members of the private Bar. Few women hold positions of authority in these institutions” says the report. “Additionally, Libyan legislation and government policies fail to effectively address issues of violence against women and gender bias.”
ILAC says that the Libyan justice sector is at present struggling with a lack of coordination and communication between the various actors. “Independent but co-equal institutions have not yet developed mechanisms for efficiently and effectively working together to serve a common public goal” it notes. This is being compounded by the lack of a clear legislative framework.
It warns that given the 8,000-odd backlog of “conflict-related” cases, the creation of ad hoc judicial bodies such as the Fact-Finding and Reconciliation Commission (FFRC), coupled with the training of lawyers and judges, is imposing a delay which is “not an attractive option.”
It asserts: “The ordinary courts provide the only existing system remotely capable of processing the existing prosecution caseload.”
The report makes a series of recommendations, including the strengthening of security for judges and lawyers, better salaries for judges and prosectors to preserve talent within the profession and the beefing up of the Judicial Police.
The ILAC team praises the Ministry of Justice’s efforts in initiating legislation “ to end impunity, improve conditions of detention and establish the control of the Judicial Police over all conflict-related detainees.
“The Ministry has also coordinated with the judiciary, in developing screening programmes for conflict-related detainees and bringing to account those responsible for contemporary human rights abuses. These initiatives should be supported and continue.”
The Swedish-based ILAC focuses on rebuilding justice systems shattered by war. It has conducted similar studies in Tunisia, Haiti, South Sudan, Iraq, Rwanda, Kenya and the Democratic Republic of Congo.
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