This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
In May 2013, Libya’s General National Congress (GNC) overwhelmingly passed the Political Isolation Law (PIL). The PIL’s enactment represented a far-reaching attempt to prevent members of the regime of Muammar Qaddafi from holding public office during the country’s transition. But the decision also appeared to fit a precarious pattern of post-conflict accountability in Libya, which has been characterized by acts of vengeance and one-sided justice aimed at anyone associated with the defeated regime. The passage of the law also reflects the current state of political instability in Libya wherein decisions are politically motivated and often forced at the barrel of the gun rather than agreed upon through public consultation and democratic decision-making.
At its heart, Libya’s PIL is a lustration law. Historically, such laws have been a common tool in the pursuit of transitional justice. Broadly speaking, lustration is a form of vetting citizens to discern whether or not they can hold public office on the basis of their relationship with a prior, delegitimized, and defeated regime. The idea of purging a vanquished political opponent is as old as the practice of war itself. New regimes require the exclusion of members, groups, and structures that sustained previous orders. In the twentieth century, exclusion by extermination of opponents shifted to exclusion through legal and political means. For example, following WWII, the process of de-Nazification sought to expel and subsequently prohibit former Nazi figures from political, cultural, and social positions―albeit with mixed results. More recently, the process of de-Ba`thification in Iraq ensured that individuals associated with Saddam Hussein’s Ba`th party were purged from public office. The policy is widely regarded as disastrous, leaving behind it a “bitter legacy” that has “polarized Iraqi politics and contributed to severe instability in the Iraqi military and government.”
The passage of official and legally sanctioned lustration laws as a mechanism of transitional justice is typically attributed to the experience of post-Communist states in Eastern Europe. After the collapse of Communist rule, states such as Poland and Czechoslovakia instituted lustration policies to prevent former Communists from holding political office. The impetus behind these laws stems directly from the social struggle of societies confronting and grappling with a recent past characterized by human rights violations.
Former Czechoslovakian President Vaclav Havel, whose own government invoked lustration laws following the conclusion of Communist rule, observed in 1993:
It is important to find the right balance, the right approach, one that would be humane and civilized, but would not try to escape from the past. We have to try to face our own past, to name it, to draw conclusions from it, and to bring it before the bar of justice. Yet we must do this honestly, and with caution, generosity, and imagination. There should be a place for forgiveness wherever there is confession of guilt and repentance.
Thus, the dilemma at the core of any lustration law is how far to go―how restrictive or broad the law should be in its application. That senior political and military officials responsible for human rights abuses, atrocities, or severe levels of corruption be excluded from public office is uncontroversial. But should civil servants, bureaucrats, mid-ranking military figures, and technocrats be disenfranchised from political power? Striking the right balance can prove immensely difficult.
For numerous reasons, lustration is a controversial mechanism for achieving post-conflict justice. It often relies on the release of secret state documents whose accuracy cannot be verified. It is also often blind to detail. For example, why an informant provided intelligence to secret police is a detail unlikely to be found in state documents. Yet surely it matters to the ascription of responsibility and determination of guilt whether an informant had a gun to her head or whether she readily volunteered her services. At the same time, if a lustration law is too broadly legislated and applied, government officials who previously played minimal, technocratic roles and whose skills could otherwise contribute positively to the country’s transition can become ensnared in a process that resembles more of a witch hunt than political vetting. This is a risk particularly for states in which large sections of society have been associated with a dominant regime that has been in power for decades.
But the palpable desire among citizens in transitional states to exclude senior officials from holding power is also understandable. Removing those individuals responsible for autocracy or dictatorship offers a rare opportunity to “turn the page” and guarantee that the old cast of characters will not morph into the state’s new leadership. Consequently, lustration and political vetting can act as a necessary, if insufficient, measure to consolidate the trust of citizens in democratic change and institutional reform. In this context, it is notable that international and local human rights groups did not necessarily view the PIL as being, in and of itself, illegitimate. Indeed, as it became clear that Libya would proceed with a lustration law in some form, rights groups refused to criticize the PIL as a whole, arguing instead that it should not be too vague or violate human rights. However, the Libyan government did not―or perhaps could not―heed their calls.
It is important to recall that Libya’s revolution was fueled―and on many levels led―by defectors of the Qaddafi regime. Among others, Mustafa Abdel-Jalil (a former minister of justice under Qaddafi), Mahmoud Jibril (former head of the National Planning Council of Libya and of the National Economic Development Board of Libya) and Mohammed Magarief (a former ambassador to India), all defected from the Qaddafi regime and subsequently played leading roles in boosting the revolution’s and the rebels’ political legitimacy. But the PIL did not take into account whether potential targets had previously defected or whether they played a role in toppling the Qaddafi regime. As Mohamed Eljarh observed, “[t]he isolation law effectively places Magariaf [sic], Jibril, and Abdul Jalil [sic] in the same category as those who sided with Qaddafi in his war against the Libyan people.” Numerous Libyan officials agree, including a representative of the country to the UN who stated his fear that the PIL “will deprive state institutions from some experienced and competent persons, who would be very difficult to replace.”
So why did the General National Congress pass a law that was widely condemned as an affront to Libya’s democratic transition and human rights? The reason lies in the political pressure applied by the country’s powerful militias, or thuwar. Since the end of the revolution, Libya has struggled mightily to rein in various regional militias, many of which have acted as a law unto themselves, challenging and undermining the Libyan government’s capacity to exert central authority over key cities and regions. Following the conflict, “Militias that had taken up arms against the former regime...held on to them to fill the security vacuum after it collapsed…[they] accumulated weapons and consolidated control over entire neighborhoods and areas.” For months, a number of militias (including the powerful Misrata thuwar) pushed aggressively―and sometimes violently―to get the PIL passed, unleashing public demonstrations and a number of blockades, in essence attempting to blackmail the GNC into passing the law. Also vocal were Islamist political parties such as the Justice and Construction Party, the Libyan wing of the Muslim Brotherhood. By extension of the fact that they were marginalized and excluded from positions of political power under the Qaddafi regime, they could not be targeted by the PIL and therefore stood to benefit most from the law’s passage. The PIL held the promise of targeting their political opponents, many of whom had worked within the Qaddafi regime, often as reformers, before working to undermine it. These groups maintained that the government had to be purged of virtually anyone and everyone who had ties to the previous regime. As the GNC was debating the merits and specifics of the PIL, the militias stormed and took over the foreign and justice ministries in Tripoli, demanding that the bill be passed.
In the midst of the struggle over the PIL, one observer noted that “a battle is under way between two forces in Libya. The government is striving to establish the rule of law, while the militias, clinging to revolutionary legitimacy, want things done their own way, with general disregard for the law. This is the core issue. Everything else is secondary.” In its weak position, however, the government could hardly forestall the militia’s demands. Despite Prime Minister Ali Zeidan’s proclamation that “we will not surrender to anyone or bend to anyone and no-one can twist our arm,” the militias successfully ensured that the law passed on May 5, 2013. In its rushed and final form, the law is incredibly broad and unspecific. Rather than targeting individuals for specific acts or crimes, it is aimed at anyone associated with the Qaddafi regime and not simply those who were complicit with or responsible for Qaddafi-era corruption and crimes.
Many have argued that the passage of the PIL will severely hamper Libya’s transition. Rhiannon Smith, for example, argues that “[t]he manner in which [the PIL] was passed has set a precedent for rule by intimidation and has undermined Libya’s transition towards democracy, justice and rule of law. Its application will mean the removal of key political figures creating more political confusion, chaos and instability.” Still, it is important to note that, in principle, the PIL is generally popular. Recent surveys suggest that a significant number of Libyans (46 percent) support the PIL. However, Libyans overwhelmingly and simultaneously view Jalil and Jibril positively, indeed more positively than any other political figures in the country. In line with the above discussion, this suggests that Libyans support a restrictive exclusion of individuals affiliated with the Qaddafi regime, namely those complicit in Qaddafi-era corruption and crimes―but not those who played an instrumental role in guiding the country through the revolution, civil war, and the early stages of political transition.
It remains to be seen to what extent the PIL will actually be implemented. The possibility remains that the law will, in the end, be more of a paper tiger than a viable threat to the post-war political stability of Libya. The broad nature of the PIL may be its downfall if it becomes impossible to implement. Moreover, the weakness of Libyan state institutions may also hinder the country's ability to see the PIL through. However, foreseeing their political demise, some respected Libyan officials have already stepped down from public office. In an indication of the extent of the law’s reach, its first “victim” was GNC President Magarief who had been Qaddafi’s ambassador to India until his defection in 1980, after which he became a prominent opposition figure in exile. Thirty years of work to topple the regime could not save him.
It is misleading to suggest that Libya suffers from a climate or culture of total post-conflict impunity. Rather, since the conclusion of the revolution and civil war, the country has suffered from selective impunity. This is clearly demonstrated by Libya’s decision to embrace the PIL. The law and the violent manner in which pro-PIL militias guaranteed its passage is symptomatic of Libya’s post-conflict narrative of ridding the state of anyone affiliated with Qaddafi―even those who were instrumental in guaranteeing the rebels’ and the National Transitional Council’s victory in the civil war. But the PIL is as much a political tool to discredit and disqualify certain political actors as it is a mechanism of transitional justice.
When focused, properly considered, and democratically implemented, lustration laws can help mark a new chapter for post-conflict and post-atrocity societies. For many Libyans, however, the PIL smacks of a continuation of Qaddafi regime tactics rather than the promise of a new way forward.
 Mark S. Ellis, “Law Purging the Past: The Current State of Lustration Laws in the Former Communist Bloc,” Law and Contemporary Problems 59, 4 (Autumn 1996): 181-196; Cynthia M. Horne and Margaret Levi, “Does Lustration Promote Trustworthy Governance? An Exploration of the Experience of Central and Eastern Europe,” paper prepared for the Trust and Honesty Project, Budapest Collegium (January 2003); Roman David, “Lustration Laws in Action: The Motives and Evaluation of Lustration Policy in the Czech Republic and Poland (1989-2001),” Law and Social Inquiry 28, 2 (Spring 2003): 387-439; Alexander Mayer-Rieckh and Pablo de Greiff (eds.), Justice as Prevention: Vetting Public Employees in Transitional Societies (New York: Social Science Research Council, 2007); Roman David, Lustration and Transitional Justice: Personnel Systems in the Czech Republic, Hungary, and Poland (Philadelphia: University of Pennsylvania Press, 2011).
 Miranda Sissons and Abdulrazzaq Al-Saiedi, “A Bitter Legacy: Lessons of De-Baathification in Iraq,” International Center for Transitional Justice, March 2013, http://ictj.org/sites/default/files/ICTJ-Report-Iraq-De-Baathification-2..., 1.
 Roman, “Lustration Laws in Action.”
 Adam Michnik and Vaclav Havel, “Justice or Revenge?,” Journal of Democracy 4, 1 (January 1993): 22-25.
 Mark Kersten, “Lustration in Libya: Ruling Congress to Pass ‘Political Isolation Law,’” Justice in Conflict, 28 December 2012, http://justiceinconflict.org/2012/12/28/lustration-in-libya-ruling-congr....
 Human Rights Watch, “Libya: Ensure ‘Political Isolation Law’ Respects Rights,” 22 January 2013, http://www.hrw.org/news/2013/01/22/libya-ensure-political-isolation-law-respects-rights; Lawyers for Justice in Libya (LFJL), “Proposed Political Isolation Law Must not Violate Human Rights,” 25 January 2013, http://www.libyanjustice.org/news/news/post/60-lfjl-proposed-political-isolation-law-must-not-violate-human-rights; Human Rights Watch, “Libya: Reject ‘Political Isolation Law,’” 4 May 2013, http://www.hrw.org/news/2013/05/04/libya-reject-political-isolation-law.
 Maggie Fick, “Libya’s ‘Political Isolation Law’ Generates Controversy,” Al-Monitor, 20 February 2013, http://www.al-monitor.com/pulse/originals/2013/02/libya-isolation-law-debaathification-qaddafi-era.html; Mohamed Eljarh, “Isolation Law Harms Libya’s Democratic Transition,” Foreign Policy, 8 May 2013, http://transitions.foreignpolicy.com/posts/2013/05/08/isolation_law_harms_libya_s_democratic_transition..
 Essam Mohamed, “Libya: Political Isolation Law Claims First Victim,” Magharebia, 29 May 2013, http://allafrica.com/stories/201305301300.html?page=2.
 Amnesty International, “Militias Threaten Hopes for New Libya,” 2012; Amnesty International, “Libya: Rule of Law or Rule of Militias,” 2012.
[10 Jason Pack and Barak Barfi, “In War’s Wake–The Struggle for Post-Qadhafi Libya,” The Washington Institute for Near East Policy, February 2012.
 International Crisis Group, “Trial by Error: Justice in Post-Qadhafi Libya,” Middle East/North Africa Report No. 140, 17 April 2013, 21.
 Haizam Amirah-Fernández, “Libya and the Problematic Political Isolation Law,” Real Instituto Elcano, 20 June 2013, http://www.realinstitutoelcano.org/wps/portal/rielcano_eng/Content?WCM_G....
 Mohamed Eljarh, “Libya’s Fight for the Rule of Law,” Foreign Policy, 4 April 2013, http://transitions.foreignpolicy.com/posts/2013/04/04/libya_s_fight_for_the_rule_of_law.
 Jawad, “Why Libya’s Militias are Up in Arms.”
 “Political Isolation Law: The Full Text,” Libya Herald, 14 May 2013, http://www.libyaherald.com/2013/05/14/political-isolation-law-the-full-text/.
 Rhiannon Smith, “Libya’s Political Isolation Law: Confusion and Charade,” Open Democracy, 15 May 2013, http://www.opendemocracy.net/rhiannon-smith/libyas-political-isolation-law-confusion-and-charade.
 National Democratic Institute, “Seeking Security: Public Opinion Survey in Libya,” November 2013, 25.
 National Democratic Institute, “Seeking Security,” 23.