Customary Practice and Restorative Justice in Libya: A Hybrid Approach
Four years after the fall of Muammar Gadhafi, Libya has become even more violent. Explosions, assassinations, kidnappings, and fighting between militias are commonplace. The central government is extremely fragile. This report highlights some of the opportunities and obstacles in a transitional setting. Its goal is to spark debate among scholars, policymakers, practitioners, and civil society actors about the role of customary law and the potential of restorative justice in a transitional setting.
Summary
- Since the death of Muammar Gadhafi in October 2011, violence in Libya has increased dramatically. Armed groups, whose ranks have grown since the revolution, have coalesced into two warring factions. Explosions, assassinations, kidnappings, and fighting between militias are commonplace. The central government is extremely fragile.
- Reconciliation initiatives have failed to end the violence. Some have been too short lived, others too narrowly focused.
- Libya’s formal legal system is in disarray, leaving traditional leaders to handle a wide variety of crimes. They are also playing an essential role in resolving not only violent conflicts between families but also broader ones, such as those between militia groups and the government.
- Conflict-related crimes and those involving human rights violations are most appropriately dealt with by a formal legal system, however.
- Legalistic and punitive processes will not be enough for Libya to make the transition from war to peace and to address its legacy of violence. To do so, the country must also turn to restorative justice and its focus on the needs of victims, offenders, and the community.
- Most studies of restorative justice have focused on democratic settings rather than transitional societies. Restorative justice in places such as Somaliland, however, suggests that it might also be effective in Libya, given the many concepts and values that the customary system and restorative initiatives share.
- In integrating restorative principles with customary practices—thereby transforming the relationships that sustain violence—Libya would create the opportunity to move toward peace and stability.
About the Report
Much has been written about the practice of restorative justice in democratic settings where the rule of law is respected, but much less is written about applying restorative justice in transitional settings. Focusing on Libya, this report highlights some of the opportunities and obstacles inherent to a transitional setting, calls for a deeper understanding of customary law as it is practiced in Libya, and suggests how customary law could be used to help establish restorative justice there. The report is part of a portfolio of rule of law work that the United States Institute of Peace (USIP) is carrying out in Libya.
About the Author
Najla Elmangoush is a professor of criminal law at Benghazi University and a former private-sector attorney. Currently a Fulbright scholar and USIP country representative in Libya, she previously headed the Public Engagement Unit in Libya’s Executive Office of the National Transitional Council, which handles outreach with newly emerging civil society organizations. Elmangoush holds a bachelor’s degree in law (Garyounis University) and master’s degrees in criminal law (Benghazi University) and conflict transformation (Eastern Mennonite University).
