The Arab Spring and the Trials and Tribulations of Transitional Justice

Gaddafi’s killing raises immediate concerns about respect for the rule of law and human rights in Libya, but also broader concerns about peace and justice in post-conflict Libya and the whole region, which has been swept by major uprisings against long-ruling dictatorships. If Gaddafi was assassinated by rebel forces, as has been suggested by numerous media sources, then this would hardly be a new precedent in the aftermath of violent conflict. Assassination and summary execution was proposed after the Second World War to deal with the top-level rulers in Nazi Germany, and was actively pursued by several groups in the past to solve the problem of post-conflict guilt. Such was the policy of the Armenian resistance against the Turks in the 1920’s, for example. At the other extreme, many post-conflict societies opt for amnesties and pardons as a way of breaking with the past, the most obvious examples being the amnesty laws adopted by South American countries following the transition to democracy (see Simpson, “The Balance between Forgetting and Remembering” 17 (2001) Political Quarterly 503, 506).

Although Gaddafi’s death has been celebrated throughout Libya, the question that begs to be answered is whether the cause of justice and peace would have been better served had he survived and later stood trial before a domestic Libyan court or the International Criminal Court (following his indictment in February for crimes against humanity).

The literature on transitional justice is replete with debates regarding the suitability of prosecutions as opposed to truth commissions for breaking with the past and allowing a process of healing for victims. Sceptics argue that the prospect of trial may, in many cases, fuel conflict and encourage parties to engage in further atrocities in order to evade prosecution. This was one of the main critiques levelled against the ICC’s indictment of Gaddafi, which was seen as potentially prolonging the conflict and diminishing incentives for Gaddafi and his loyalists to lay down their arms.

At the domestic level, prosecutions of mass atrocities present very complex challenges, raising questions regarding the utility of trials in aiding reconciliation and the transition to democracy. In criticising ‘vengeful’ domestic trials, the image of former President Saddam Hussein is often conjured up, facing execution after what was termed by Human Rights Watch as a “flawed trial” overseen by a biased judge (see “Iraq: Saddam Hussein Put to Death. Hanging after Flawed Trial Undermines Rule of Law” (29 Dec 2006) Human Rights Watch).

Such extremes aside, however, it is generally recognised that bringing perpetrators of mass atrocities to justice is an important component of transitional justice, promoting the rule of law and aiding in the transition to democracy. The aim of such trials is not only to punish perpetrators and deter future abuses, but also to consolidate the rule of law, establish a record of past abuses, and restore dignity to victims.

In Egypt, former President Hosni Mubarak, whose trial began on 3 August 2011, faces charges of conspiring to kill protestors during the January/February uprising in which almost 850 people were killed at the hands of the riot police. Similar charges were brought against the former Minister of Interior and six of his aides. Mubarak’s two sons face charges of abusing power to amass wealth, while a significant number of Mubarak-era cabinet ministers and business associates have been charged with money laundering, profiteering and abuse of power.

The absence of provisions incorporating crimes against humanity and the “corruption of political life” (a local code for autocratic rule) into Egypt’s penal code has led the prosecution to limit the scope of charges to murder and abuse of power. Scenes from the courtroom repeatedly show the judge struggling to impose order and riot police clashing with Mubarak supporters. With protestors consistently returning to the street to demand a quicker trial, scepticism abounds regarding the ability to administer justice in a manner that is consistent with international human rights standards, positing the trials as a process of revenge and retribution disguised behind the façade of legal procedure.

This process has raised the question of whether prosecutions are the best way to deal with violations perpetrated by the ancien regimes deposed in the Arab spring. The answer to that question depends on the objectives that such trials are intended to achieve. Successfully proving one murder charge hardly does justice to countless other victims and fails to uncover the truth sought through criminal proceedings. However, it succeeds in putting the perpetrators behind bars, establishing (limited?) accountability and fighting impunity, while simultaneously deterring future repetition of such crimes. The destruction of evidence means that judges may be forced to choose between acquitting defendants (which can only lead to public fury) or convicting them in defiance of due process, but such difficult choices are natural steps on the path to establishing the rule of law and consolidating judicial independence (see Browers, “How Mubarak’s Trial Brings Justice to Egypt” Foreign Policy (Aug 17, 2011)).

Although Gaddafi’s death may have relieved Libya of the need to address some of these complex challenges, it has not brought complete closure to Libyans who have endured more than forty years of his autocratic rule. It remains to be seen whether Gaddafi loyalists will continue to wield arms against the newly established Libyan government, and how this government will deal with the crimes of the previous regime. The possible role of truth commissions and amnesties, and their interaction with the ICC will all be interesting developments to follow. In the final analysis, whether the purposes of transitional justice will be served in Libya as well as in Egypt depends on the following: (1) the general public’s perception of the trials as being fair, just and transparent; and (2) the prosecutions’ ability to comprehensively address long-term abuses, including widespread and systematic torture and other crimes that go well beyond the scope of violations committed by previous regimes against protestors in their last few days of power.