Addressing Libya's Past Injustices - Essay Example

? ADDRESSING LIBYA’S PAST INJUSTICES Question The Tribunal with Jurisdiction over the Case of Saif al-Islam Gadhafi Libya is one of the countries, which do not recognize the International Criminal Court because it did not sign the Rome statute, which binds a country to the jurisdiction of the ICC. As demonstrated by Kyriakakis (2009, p. 333), the provisions of the ICC laws include prosecution of persons who have committed crimes against humanity. Furthermore, according to article 5 of the Rome Statute of the International Criminal Court (1998), the international tribunal has jurisdiction to crimes of genocide, aggression and war crimes. BBC News Africa (2011) reported the capture of Gaddafi's son Saif al-Islam with the new prime minister of Libya saying that Saif will get a fair trial in Libya. Because Saif is accused of ordering killings during the regime of his slain father Muammar Gaddafi, it is therefore appropriate that the Libyan authorities hand him to the ICC for trial. Additionally the BBC News Africa, (2011) shows that the chief prosecutor of the International criminal court, Luis Moreno Ocampo promises a fair trial for Saif if he is submitted to the international tribunal. Moreover, Article 7 of the Rome Statute of the International Criminal Court (1998) provides jurisdiction of the court to the crimes of murder and torture which are parallel to the allegations against Saif al-Islam. According to Kyriakakis (2009, p. 336), the universality principle of the International Criminal Court as provided by the international law gives the ICC criminal jurisdiction regardless of country or nationality. Therefore despite the fact that Libya was opposed to the Rome treaty, the allegation that the ICC cannot claim jurisdiction of crimes committed outside the boundaries of the Rome treaty cannot prevent it from prosecuting people who commit crimes against humanity. However, the assertion of the new prime minister of Libya that Saif will be tried locally is not based on ICC jurisdiction. As a result, the ICC should provide the court trial for the Libyan leader. The ICC upholds human rights through its laws and its role is to protect the dignity of people through prosecution and punishment of individuals who commit dehumanizing crimes. The ICC claims that Saif Gaddafi who was presumed to be the successor of his father played a leading role in organizing the killing of Libyan civilians as explained by the Asian News Monitor (2011). This amounts to genocide, which according to the laws of the ICC gives the international tribunal a mandate to prosecute Saif Gaddafi. Moreover, there could be political influence in local hearings of the Saif case, which could compromise the achievement of a fair trial. It should be noted that the ICC must have evidence to support its accusations against the Libyan leader before he is convicted of the alleged crimes. The arrest of Saif al-Islam by the militia force which is allied to NTC should therefore present the leader to the ICC to warrant the beginning of investigation by the international tribunal. This is because the ICC is described by the BBC News Africa (2011) as having reasons to belief that Saif al-Islam was involved in the alleged crimes through evidence material. Further investigation by the court will back the current evidence of the crimes committed by the leader. Moreover, the trial at ICC is more likely to be unbiased and objective as compared to a local tribunal in Libya. Further support for the ICC hearing of the Saif case is demonstrated by the fact that the laws of the ICC provide for confirmation hearings before the actual court cases are heard. This means that if the arrested leader is submitted to the ICC, the international tribunal will thoroughly evaluate the prosecutor’s evidence to pave way for a fair trial. Trial will only occur if the evidence against the Libyan arrested leader meets the minimum threshold of crime beyond which ICC jurisdiction is justified. The need for an ICC trial for Saif al-Islam is further demonstrated in article 25 of the Rome Statute of the International Criminal Court (1998) which shows that a person should bear personal responsibility for crimes committed against humanity. Trial at the Hague based international court will thus ensure that the Libyan leader takes responsibility for his crimes which should be based on sufficient evidence against him. Question 2: The Parameters for Creating a Truth Justice and Reconciliation Commission in Post Gadhafi Libya Libya should create a truth and reconciliation commission (TJC) so that victims whose human rights were violated during the autocratic rule of Gaddafi are given a forum to present their experiences. The creation of such a commission must be supported by the constitution. This is challenging in the Libyan scenario because the current constitution does not uphold the need for creation of such commissions. On the other hand, African states such as South Africa have created such commissions. The TJC created in South Africa after the end of apartheid was aimed at providing restorative justice to the victims of genocide and violation of human rights. The Libyan government should also create a TJC to enable the victims of the alleged unfair Gaddafi rule to give statements about their experiences, which would guide the international criminal court in evaluating the involvement of the leaders of Gaddafi rule’s in crimes against humanity. The creation of the TJC in Libya will also enable the victims of the autocratic rule to give their evidence through personal testimonies, which would enable them to be given amnesty through criminal and civil prosecution of the perpetrators. In South Africa, the TJC provided a forum for giving their grievances through public hearings. This was a way of making a smooth transition from the apartheid regime to the post-independence democracy. Therefore, the Libyan government will need a TJC created so that the transition from the autocratic Gaddafi regime to a more democratic rule will be made possible. Additionally the country needs to change to the new constitution. The parameters of the South African TJC should be applied in Libya because it succeeded in South Africa by healing the animosity and tension, which was created by the apartheid rule. Question 3: Re-Examining Treaties Already Ratified by Libya According to the Rule of Law in Armed Conflict Project (2011), Libya signed the International Covenant on Civil and Political Rights (ICCPR) of 1966 which is the foundation of people’s freedom, peace and justice of the human family. This treaty was signed by the signatory states in accordance to the Charter of the UN and the principles which this international body proclaims. The Libyan government should review its declaration within this treaty so that the dignity and rights of all Libyans will be upheld by the authorities. Additionally, the declaration of Libya in this treaty should provide for the promotion of economic, political, cultural and social rights of its citizens. This will ensure that there is both political and civil freedom of the Libyans and democracy which was not enjoyed during the regime of the slain former leader of Libya, Muammar Gaddafi. The new Libyan authorities should therefore be supportive of democracy and discourage autocratic governance and violation of human rights as explained by Doherty (2009, p. 753). The signing of conventions on human rights by Libya considered the provisions of the Arab charter of human rights because the Libyan society is Islamic. Therefore the declaration of the Libyan government in the CEDAW 1979 treaty for the protection of human rights was aimed at safeguarding the provisions of the Sharia law as demonstrated by the Rule of Law in Armed Conflict Project (2011). In the modern democracies which are characterized by globalization, there is intercultural exchange due to freedom of movements and migration of people among countries. As a result, the Libyan population cannot be declared fully Islamic because there are immigrants from different ethnic and religious backgrounds within the state. Additionally, there are changes in religious beliefs among individuals among Libyans which result from the conversion of people into other religions. Because of the changes in society, the declaration for the rights of the Libyan women in the CEDAW treaty should be reviewed to cater for the rights of all women in Libya regardless of their religious affiliation. The review of the Libyan declaration in the CEDAW treaty should however maintain the protection of the Islamic women as it incorporates women from other religious and ethnic standing. The declaration of Libya in the signing of the CRC Optional Protocol Armed Conflict of 2000 is demonstrated by the Rule of Law in Armed Conflict Project (2011) as being supportive of the rights of children. This is because the Libyan government declared in this treaty that the only individuals above the age of eighteen are allowed to volunteer in serving within the armed forces. This shows Libya’s support for the Convention for child rights and hence the country should be committed to uphold the rights of children. The review of the Libyan declaration in the CRC Optional Protocol Armed Conflict of 2000 treaty of the international human rights law should be aimed at protecting children from child labour. This will ensure that child labour is prohibited in Libya. Moreover, the declaration of Libya in this convention should accommodate the upholding of education for children. The declaration of Libya on the protection of child rights should also be supported by the constitution in all aspects so that any violator of child rights within Libya is prosecuted and punished by the governing authorities. Furthermore, the declaration of Libya in the CRC Optional Protocol Armed Conflict of 2000 should be considerate of the Rome statute of the ICC’s declaration that involvement of children under the age of 15 in military conflict is a war crime. The ICC’s jurisdiction in war crimes should be considered in protecting Libyan children from involvement of war regardless of Libya’s disregard to the Rome statute. This is because of the universality principle of the International Criminal Court which gives it jurisdiction to crimes which are provided in the ICC laws despite the nationality and country where the crimes are committed. Question 4: Reviewing Libya’s 1969 Constitution in Accordance with the Country’s Human Rights Obligations The article of the modern Libyan constitution on the revolutionary command council provide the state with powers of making all decisions as long as it aims at protecting the interests of its people. This article of the constitution should be reviewed because leaders would misuse their powers to make decisions which are motivated by personal interests Doherty (2009, p. 759). It is necessary for this article to be reviewed so that the powers of the state are specified and clearly defined. This will ensure that the government is not above the law. As a result, democracy in Libya will be promoted. Article 19 on the current constitution gives the Revolutionary Command Council the powers of appointing the president. This is not in line with the provisions of a democracy because people should be the determinants of who their leaders should be. The review of this article should thus be aimed at ensuring that the people of Libya are empowered to elect their president through a democratic election process. As a result, dictatorial regimes such as those of the former Libyan leader will be unconstitutional. Additionally, Libya will be deemed as part of the democratic world, which would necessitate reforms in autocratic governments such as the Yemen regime. The rights and freedoms of Libyan citizens have not been clearly provided in the current constitution hence there is need for a review of the constitution so that it upholds the human rights of the Libyan people. The constitution should be more elaborative in the area of the freedoms of citizens so that leaders do not violate such rights. Rights such as ownership of property and free movement in Libya should be provided in the constitution Doherty (2009, p. 755). This will enable the citizens to feel secure and protected by the government. Bibliography Asian News Monitor 2011, Libya: ICC Concerned Gadhafi Son May Flee Libya. Bangkok. Thailand. BBC, 2011, News Africa, Gaddafi's son Saif al-Islam captured in Libya, 19 Nov. 2011 Doherty, T 2009, “he Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective.” Leiden Journal of International Law, 22 (4), 753-759. Kyriakakis, J. (2009). Corporate Criminal Liability and the ICC Statute: the Comparative Law Challenge", Netherlands International Law Review, 56 (3), 333-366. Rome Statute of the International Criminal Court, 1998, A/CONF.183/9 Rule of Law in Armed Conflict Project, 2011, Libya: International treaties adherence, Geneva Academy of International Humanitarian Law and Human Rights, Switzerland. Read More