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Searching for Justice in Post-Gaddafi Libya Report of the AJIDIL Research Project Searching for Justice in Post-Gaddafi Libya A Socio-Legal Exploration of People’s Concerns and Institutional Responses at Home and From Abroad Jan Michiel Otto Jessica Carlisle Suliman Ibrahim Nasser Algheitta Jazia Gebril Amal Obeidi Khalifa Shakreen Mohammed El-Tobuli Published by Van Vollenhoven Institute, Leiden University Table of Contents Foreword vii Preface viii Acknowledgements x Map of Libya xii Part 1 1 Introduction 3 Jan Michiel Otto 2 Opportunities, Constraints and Dilemmas in Libya’s Search for Justice 14 Jan Michiel Otto 3 Perspectives on Justice in Libya: A Review of International Reports 33 Jessica Carlisle 4 Libya’s Supreme Court and the Position of Sharia, in the Perspective of Constitutional and Legal History 54 Suliman Ibrahim Part 2 5 Access to Justice and Legal Aid in Libya: The Future of the People’s Lawyers 79 Jessica Carlisle 6 The Role of Criminal Defence Lawyers in the Administration of Justice in Libya: Challenges and Prospects 92 Nasser Algheitta 7 Her Day in Court: The Work of a Judge on Family Law Cases in Tripoli 104 Jessica Carlisle 8 Developing the Case Against Law 4/1978: Property Claimants in Tripoli 117 Suliman Ibrahim and Jessica Carlisle 9 Compensation for Unlawful Detention under Gaddafi’s Regime 130 Jazia Gebril and Mohammed El-Tobuli 10 From Forced Reconciliation to Recognition: The Abu Salim Case in Historical Perspective 142 Amal Obeidi Part 3 11 People’s Problems, Practices and Patterns of Justice Seeking: Towards a National Knowledge Base 153 Jessica Carlisle and Jan Michiel Otto 12 From Problem of Knowledge to Responsibility to Learn 165 Jan Michiel Otto 13 Conclusions 173 Jan Michiel Otto and Suliman Ibrahim Annexes I Additional Report: Libya’s Court Structure 185 Nasser Algheitta and Suliman Ibrahim II Additional Report: The Role of the Tribe in Libya: Making the Informal Formal 189 Amal Obeidi III Additional Report: Justice Seeking in the Case of Abdul Fatah Younis 195 Khalifa Shakreen IV Chronology of the Formation and Activities of the ajidil Research Group 199 V Policy Suggestions 201 Jan Michiel Otto and Suliman Ibrahim About the Authors 205 Bibliography 208 Shortened urls 217 Foreword Searching for Justice in Post-Gaddafi Libya is a significant research report, for Libya as well as for the international community. It is the first publi- cation of a project on Access to Justice and Institutional Development in Libya (ajidil), which was established by scholars in legal and social sci- ences of our two universities. We gratefully acknowledge the partnership of The Hague Institute for Global Justice, which made this research possible. We would like to express our sincere appreciation for the work done by the research group, and project leaders Prof Jan Michiel Otto, director of the Van Vollenhoven Institute for Law, Governance and Development, at Leiden University, Dr Fathi Ali, director of the Benghazi Centre for Research and Consulting, and Dr Suliman Ibrahim, dean of the Benghazi Law Faculty. The ajidil research project is an innovative international academic project, Fo which has daringly explored and crossed boundaries, overcoming the dif- RE ficulties of a conflict-affected situation. Benghazi University has welcomed wo this project in particular since it exemplifies problem-oriented interdisci- RD plinary research, and encourages the university to engage in debates on the justice sector, both domestically and on an international level. Leiden University appreciates the ajidil project as it provides an opportunity to share, deepen, and apply its rather unique research tradition in the field of law, governance, and development. It is with pleasure that we note the good partnership between the ajidil researchers, which has laid a solid foundation for further collaboration between our universities. We are proud that this report was presented on 28 August 2013 in The Hague at the occasion of the celebration of the 100th anniversary of the Peace Palace. Carel Stolker Mohammed El-Tobuli President of Leiden University President of Benghazi University vii Preface This project began when, in order to mark the 100th anniversary of the Peace Palace, the City of The Hague kindly contributed to a research proj- ect to be undertaken by The Hague Institute for Global Justice (The Hague Institute) about sustaining the rule of law and its institutions in fragile and conflict-affected states. The Hague Institute was established in 2011 as a think-and-do-tank on issues at the intersection of peace, security, and jus- tice. The institute invited Leiden University’s Van Vollenhoven Institute for Law, Governance, and Development (vvi/lu) to be its partner for this research project. In November 2011 Libya was considered an important testing ground for new approaches to peace building and rule of law promotion. The country had, following events in Tunisia and Egypt, joined in the Arab uprising and overthrew its ruler, Muammar Gaddafi, with international support. Hence, it was suggested that the Van Vollenhoven Institute would consider focus- ing its research on Libya. The Hague Institute itself would conduct a com- parative desk study of other fragile states as a foundation for a set of prin- ciples aiming to contribute to peaceful conflict prevention, and resolution REFACE and restoration of justice in post-conflict settings, known as The Hague P Approach. In further talks with the City of The Hague and The Hague Institute, the proposal was refined as follows: could the Van Vollenhoven Institute develop a research project, in the forthcoming year (2012/2013), on and in Libya, as a fragile state, which would be relevant both to Libya as well as to further “knowledge-based” rule of law assistance. It was made clear that the research should be as domestically grounded and participatory as possible. The vvi/lu, in its quest for a partner in Libya, sought collaboration with the Benghazi Centre for Research and Consulting of Benghazi University (brcc/bu). Following successful exploratory talks in Benghazi in February 2012, the vvi and brcc jointly decided to carry out such a research project. They named it “Access to Justice and Institutional Development in Libya,” abbreviated as ajidil, a word which remotely connotes the Arabic term ‘adil, meaning “just” (‘adala means “justice”). Under the leadership of brcc director Dr Fathi Ali, Dr Suliman Ibrahim of the Benghazi Law Faculty, and Prof Jan Michiel Otto, director of the vvi, a small interdisciplinary and inter- university “ajidil research group” was formed in Libya (see Annex iv). Dr Jessica Carlisle joined the vvi to carry out and support the field research in Libya. viii During the first half of 2012 the preparation of our project continued. After the February visit of the vvi director to Benghazi, in May a delegation of four Libyan academics came to Leiden. More visits and meetings in both countries were to follow (see Annex iv). The ajidil research group used the second half of 2012 to further discuss the research project, delineate the themes, discuss literature and develop a conceptual framework. Several sub-projects were started and the research- ers began doing their first field interviews in Libya. In the first half of 2013 most of the ajidil project’s actual research work was carried out. Initial research findings were discussed, reports of various sub-projects were prepared, and on 27 and 28 March a joint expert meet- ing was conducted by the The Hague Institute and the Van Vollenhoven Institute, with participation of the ajidil research group. From April to July, finally, this report was prepared. This report reflects the reality that the ajidil project has now passed its P initial stages. While some exploratory case studies have been completed, REFACE the data collected for other parts of the project are still subject to analy- sis. Preparations for a major survey are well under way. The ajidil proj- ect group has already agreed to continue their research into 2014 and an agreement for future academic cooperation between brcc/bu and vvi/lu has been concluded. The partners acknowledge with appreciation that the The Hague Institute has established the foundation for this collaborative enterprise. Jan Michiel Otto Suliman Ibrahim Director of the Van Vollen- Dean of the Benghazi hoven Institute Law Faculty Leiden/Benghazi, 9 July 2013 ix Acknowledgements This report is the product of a collaborative effort, involving dedicated indi- viduals in different countries. All deserve our sincere thanks for their con- tributions to our project and to this report. We recognise in particular the initiators and sponsors of this research project, the City of The Hague, through Mayor Jozias van Aartsen, City Secretary Annet Bertram and head of the International Affairs Office, Astrid Bronswijk, and the leadership of The Hague Institute for Global Justice, ini- tially under the direction of Willem van Genugten, and managed by Anton Nijssen, and since January 2013 under the direction of Abiodun Williams. The support of the Dutch embassy in Tripoli, through Michel Deelen and ambassadors Gerard Steeghs, Robbert Gabriëlse and Ton Lansink, was impressive. We also appreciate the kind support of Libyan ambassador Ahmed El-Tabouli in The Hague. TS The United Nations Support Mission in Libya, through Ahmed Ghanem n E and Marieke Wierda, has been most helpful to us. m We thank the numerous Dutch, Libyan, and British academics and practitioners who shared their experiences with us. The meetings both LEDGE in Libya and the Netherlands with the leadership of the Higher Institute for the Judiciary, Director Ali Bakar, Deputy Kamal el Bahri, the Training know Department Head Faraj al-Mahmoudi, and Justice Hussain al-Yasiri, were C A highly appreciated. We are also grateful to Jeff Tan (Aga Khan University, London) for join- ing and contributing to our October 2012 research meeting, and to Claudia Gazzini (International Crisis Group, Tripoli) for joining and contributing to our March 2013 research meeting.

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