Lean Rodriguez March 13, 2017

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A REACTION PAPER ON THE ARTICLE ENTITLED "THE

CHALLENGE OF PROSECUTING CONFLICT-RELATED GENDER-
BASED CRIMES UNDER LIBYAN TRANSITIONAL JUSTICE
SYSTEM BY HILMI M. ZAWATI
During the aftermath of the ouster of former Libyan dictator,
Muammar Qadaffi, the Libyan Transitional Government is faced with
the problem of prosecuting conflict-related gender-based crimes
which were committed during the uprising against the former dictator.
In the article the author was able to present three major challenges
that were met by the transitional government of Libya in trying to
prosecute these crimes. These challenges are namely: 1. legal
impunity and lawlessness, 2. rule of law v. militia justice, and 3. lack
of security and public order (H.Zawati, 2014). In this paper we are
going to tackle each problem as the author presented them.
1. Legal impunity and lawlessness
In the article the author stated that, for justice to be achieved by
the transitional justice system of Libya, a full and independent
investigation of the vast scope of the sexual crimes committed by the
former regime's security forces during and before the armed conflict,
and also those committed by the rebel forces and other government
agents. Moreover, the system should also emphasize that victims
rights to effective remedies be determined by competent judicial,
administrative or legislative authorities, not by insurgents councils
that were created after the armed conflicts. All persons who have
committed such crimes should be investigated and held accountable
(H. Zawati, 2014).

The challenge here is that although such an idea is not far from
being realized, there are already existing barriers to it. One of the
barriers to this idea is that the transitional government promulgates
laws that makes the punishment for these crimes retributive rather
than constructive. An example is law No.38, art. 4, of the transitional
government which provides for a blanket immunity for persons who
carried out tasks to topple the former regime. It is common for men to
stick together, in the case of Libya, the transitional government is
made up mostly of people who were part of the uprising. As such, the
law makers would, to maintain the favor of the people, put in place
laws that would protect those who helped them to topple the former
regime. Hence, barring the full and impartial investigation of gender
Lean Rodriguez March 13, 2017
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based crimes that were committed by the former regime and also the
by the militias (H.Zawati, 2014).

2. Rule of Law v. Militia Justice

Generally, on this part of the article the author presented the

flaws of the Libyan transitional government in upholding the rule of
law. One of the main contentions of the author is that the transitional
government of Libya failed to prosecute such crimes because the law
makers did not give enough thoughts on the laws that were
promulgated leading to unexpected repercussions on their justice
system. This is specifically true for Law No. 38 which provides for a
blanket immunity to the members of the rebel militias, making it seem
that the only people who would be prosecuted on gender-based
crimes and other crimes committed during the uprising are the
security forces of the former regime. It is best to understand that
these law makers are also part of the uprising, and to maintain the
favor of the people they are constrained to the wants of their
constituents. In this case many of the people are part of the rebel
militias or tribes who also committed gender-based crimes. But as
the author stated, a full investigation and prosecution of such crimes
are needed, and to uphold the rule of law there must be equality
between the members of the militia and the members of the former
regimes army. At this point it is safe to say that the transitional
government already failed to uphold the rule of law (H.Zawati, 2014).

3. Lack of Security and Public Order

The third challenge is about the lack of security and public

order in post-Qadaffi Libya. The lack of an existing Central authority
in Libya makes it difficult for the Libyan transitional government to be
able to control the tens of thousands of rebel brigades that refuse to
join up with the Libyan Security forces (H.Zawati, 2014).

Libya being a country made out of different tribes and militias

that lack trust between and among themselves and their government
finds it hard for a general unification of the people under one central
authority. This lack of unification and central authority lead even to
the death of some diplomatic corps in Benghazi (D.Kirkpatrick,2012),
where the Transitional Government failed to respond to the aid of the
diplomats. This is a clear example of the lack of control of the
transitional government over majority of the people (H.Zawati, 2014).
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Conclusions

The Transitional Government of Libya has failed to overcome

all of this challenges in a way that Libya at its current state would be
far from regaining its former glory. In this wise, the government would
need to reform the laws that were promulgated giving immunity to the
rebel militias, to allow the full investigation and prosecution of gender-
based crimes and other crimes committed during and after the
uprising against the former regime and to uphold the rule of law and
to include the crimes punished by the Rome Statute in their penal
code. The government should also be able to create a central
authority that would have full control over the warring tribes and rebel
brigades. This is to prevent a further division among the people of
Libya, and for a successful governance of the country. Although the
article was able to present some ways on how the Libyan government
would reform their laws, and solve the problems they are facing, it is
highly encouraged that further study on the matter is needed to
explore ways to solve the problems that is faced by the Transitional
Government of Libya. This is because it is the culture of the Libyan
people that needs to be evaluated and studied for this changes to be
applied.

References:
1. Zawati, H. M. (2014). The Challenge of Prosecuting Conflict-
Related Gender-Based Crimes under Libyan Transitional
Justice, [Abstract]. 10 Journal of International Law &
International Relations, 44-91., Retrieved February 16, 2017.

2. http://www.nytimes.com/2012/09/13/world/middleeast/us-envoy-to-
Libya-is-reported-killed.html