Why impunity for war crimes could jeopardise Libya's road to peace

The first results of a probe from Libya’s Fact-Finding Mission (FFM) commissioned by the UN Human Rights Council, which were released in early October, found evidence of grave violations that possibly include war crimes and crimes against humanity since 2016 in the conflict-stricken North African nation.

The report chronicled accounts of rights violations ranging from arbitrary detention to torture, murder, slavery, sexual violence, the recruitment of child soldiers, and mass killings.

The FFM found that “all parties to the conflicts, including third states, foreign fighters and mercenaries, have violated international humanitarian law”, and “some have also committed war crimes”.

The UN-appointed mission stressed that vulnerable persons such as migrants, refugees, and members of ethnic minorities have been particularly exposed to violence since Libya descended into chaos in the wake of the 2011 uprising that ousted long-time dictator Muammar Gaddafi.

"Libya's Fact-Finding Mission found that 'all parties to the conflicts, including third states, foreign fighters and mercenaries, have violated international humanitarian law', and 'some have also committed war crimes'"

The experts pointed to reports showing that the Libyan coastguard - equipped and trained by the European Union as part of its strategy to stem the flow of migrants - had mistreated and returned some to detention centres.

The mission also referenced accounts about the use of foreign fighters in the country from the Syrian conflict and private mercenaries allegedly contracted by the Russia-based military company Wagner Group in the 2019-2020 fight for the capital Tripoli.

The investigators, whose mission was created in June 2020, reviewed hundreds of documents, interviewed more than 150 individuals, and conducted investigations in Libya, Tunisia, and Italy.

The investigation team said it had determined which individuals and groups, both Libyan and foreign, may bear responsibility for the violations, abuses, and crimes. The names will remain on a confidential list until they can be shared with appropriate accountability mechanisms.

“As Libyans strive to secure peace, ensuring accountability for gross human rights violations and international crimes committed in the country is more necessary than ever to deter further violations and promote long-term peace and reconciliation,” Mohamed Auajjar, chair of the Fact-Finding Mission, said.

Sherine El Taraboulsi-McCarthy, a visiting fellow at the University of Oxford, spoke about three trends in examining the nature of violence in Libya. It is often localised, she said, due to the rivalry between the eastern-based Libyan National Army (LNA) and armed groups aligned with the Government of National Accord (GNA), as well as conflict between smaller factions within the two opposing camps.

“That makes it highly unpredictable and challenging to tackle crimes and abuses at state and local levels at the same time,” the researcher told The New Arab.

Secondly, the various forms of violence are interconnected, with politically motivated military violence intersecting with gender violence and violence against children.

Additionally, violence in the Libyan setting has a clear regional dimension too, since actors like Russian mercenaries, Turkish troops, as well as Syrian, Sudanese, and Chadian fighters, among others, have been operating on the ground.

Although preliminary and far from comprehensive, the FFM’s exposé is a first step in the process of identifying perpetrators and bringing them to justice. The mission only became fully operational in June of this year.

With barely four months at its disposal, time constraints and the restrictions caused by the Covid-19 pandemic have significantly hindered the task force’s ability to carry out its work effectively, limiting its access to the country as well as its ability to investigate the wide range of human rights violations and abuses.

The findings potentially send a strong signal to key international and regional powers amid endemic violence and the need for accountability.

El Taraboulsi-McCarthy acknowledged that the FFM has its own limitations, though noted that its presence is important “as part of a broader framework and approach towards accountability” that does not simply consist in taking perpetrators to court. “The process of bringing justice will be very difficult given the extent of harm caused by multiple conflicting parties in the Libyan context,” she underscored.

The scholar, whose research focuses on humanitarian politics, conflict, and security in the MENA region, pointed to some major anticipated challenges in the endeavour of seeking accountability. One is the continuity of “localised, fragmented efforts” that inevitably lead to injustice.

"For political expediency, we're seeing that key areas like accountability, justice, and human rights are completely overlooked. What that means in terms of sustainable peace is questionable"

She hinted that rights groups in Tripoli and Benghazi documenting violations within the country tend to exchange allegations, thus reflecting the country’s east-west divide, instead of pursuing their work with a national outcome in mind.

Another obstacle, she explained, is a “lack of capacity” - or of a system - to guarantee that some level of justice is obtained. In addition, the “level of trust in the international system” has been lost to a large degree, for instance, in terms of insufficient inclusiveness of the UN-sponsored Libyan Political Dialogue Forum (LPDF).  

The fact-finding mission, whose mandate expired on 30 September, was extended for nine months. While the renewal allows its vital work to continue, the length of the period is insufficient to ensure a full determination of the breadth of violations carried out and of potential wrongdoers. Considerably more time is required for the initiative to look thoroughly into the violence carried out, and have a meaningful impact in tackling impunity in Libya.

Marwa Mohamed, a human rights defender and head of advocacy and outreach of Lawyers for Justice in Libya (LFJL), criticised the 9-month extension as “disappointing” and “unprecedented” while urging the allocation of resources for the FFM to start its work immediately.

She highlighted the importance of restoring the rule of law and creating an environment where perpetrators are held accountable. “It’s not just about doing justice for the victims, but ensuring accountability can also serve as a deterrent,” the rights advocate told The New Arab.

She highlighted the continuing closure of Libya’s civic space as one “very worrisome” aspect, especially in the lead-up to the elections, amid the ongoing crackdown on civil society, rife impunity, and no concern for human rights, and placed special emphasis on women, who should be given safe spaces to participate in public life without fear of reprisal.

“For political expediency, we’re seeing that key areas like accountability, justice, and human rights are completely overlooked. What that means in terms of sustainable peace is questionable,” LFJL’s advocacy director said, warning that the political process hastily moving forward in the current context will be problematic.

Mohamed also maintained that, in the absence of a working criminal justice in Libya, having an independent investigative body charged with inquiring into crimes committed on Libyan soil and identifying those responsible is fundamental. Next, suitable accountability mechanisms will need to be adopted, she reiterated.

“There has to come a point where none of these crimes can be ignored in order to restore the rule of law and the functioning of the state,” the human rights defender said firmly, “taking accountability seriously requires political will on both the national and global levels”.

The semi-annual briefing on the human rights situation in Libya published by the Cairo Institute for Human Rights Studies and the Libya Platform coalition on 12 October found evidence of continued systemic and grave violations in the country, including at the hands of armed groups affiliated with state and security institutions, in the period between January and June 2021.

Among the violations listed are extrajudicial killings, torture, and inhuman treatment, enforced disappearances, arbitrary arrests and detentions. The organisations documented at least 25 extrajudicial killings, 33 enforced disappearances, and 42 attacks against civilians or indiscriminate civilian casualties, including 16 children.

"It's not just about doing justice for the victims, but ensuring accountability can also serve as a deterrent"

The update especially highlighted the distressing situation of migrants, refugees, and asylum-seekers. It also denounced restrictions on public freedoms and attacks on the work of civil society and journalists.

With the elections scheduled in two months’ time, and no clarity about how the dire human rights situation in Libya is going to be addressed, the political process is under threat as it has been closely intertwined with the widespread violence in the country since 2011.

More broadly, the protraction of impunity for past and ongoing violations of international human rights law and international humanitarian law would have adverse effects on long-term peace and security in war-torn Libya.

“These concerns will continue to exist until mercenaries are out of Libya, a democratic process is followed, and justice is restored not only internally but within international engagement,” Taraboulsi-McCarthy argued.

Alessandra Bajec is a freelance journalist currently based in Tunis.

Follow her on Twitter: @AlessandraBajec