The Challenge of Prosecuting Conflict-Related Gender-Based Crimes under Libyan Transitional Justice
Journal of International Law and International Relations, vol. 10, pp. 44-91, 2014
50 Pages Posted: 12 Jan 2015 Last revised: 22 Jan 2015
Date Written: Winter 2014
In the recent and ongoing Libyan armed conflicts, 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. 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. 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. 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 to deal with widespread or systematic human rights violations, particularly conflict-related gender-based crimes committed by all parties to the conflict. 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. 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 Libyans’ 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. Finally, this work scrutinizes three key mechanisms for gender-sensitive transitional justice in Libya, involving urgent justice system reform, establishment of an independent truth-seeking and reconciliation commission to investigate gender-based crimes committed by all parties to the recent civil war, and finally the setting up of a Special Court for Libya as a hybrid judicial system for bringing perpetrators to justice and bring justice to victims.
Keywords: Libyan Transitional Justice; International Criminal Justice; Wartime Rape; Conflict-Related Gender-Based Crimes; Prosecution of Gender-Based Crimes; Libyan Penal Code; Universal Jurisdiction; Saif al-Islam Qadhafi; Rape as a Weapon of War; Retributive Justice; International Criminal Court
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