By Christine Seisun
Due to the nearly complete political and military hold that Qaddafi has held over the last forty years – dissent has been illegal under Law 75 since 1973 – a culture of democracy including multiple political parties has not had a chance to take hold until very recently in Libya. The newly formed National Transitional Council (NTC), now recognized as the legitimate governing authority in Libya by over 32 countries including the United States, is currently in the process of quickly trying to lay the groundwork for a functioning democratic state.
In February the UN Security Council, in a historically unanimous decision, agreed to refer the situation in Libya to the International Criminal Court (ICC). Nearly exactly four months later (lightning speed for the ICC), the Pre-Trial Chamber issued arrest warrants for Qaddafi and two others. As hostilities between pro-Qaddafi and dissident forces in Libya were steadily and violently mounting, a group of expatriate Libyan lawyers formed the organization Lawyers for Justice in Libya (LFJL) so as not only to provide legal advice on international law (including the laws of armed conflict) but also to investigate any possible crimes against humanity that might have occurred since February 15th and human rights abuses that might have taken place both before and after the start of hostilities this year.
Among the responsibilities of the NTC was the aim that all of the fighters openly taking up arms against Qaddafi adequately follow the laws of armed conflict so as to ensure that they did not “act like Qaddafi’s forces”. The NTC then turned to LFJL to help create legal guidelines for those involved in frontline fighting. Through personal contacts, a member of LFJL set up a small working group of faculty and students based out of the School of Oriental and African Studies, University of London to create these guidelines. Along with the LFJL member we were given two primary areas on which to focus: 1) treatment of detainees and 2) acceptable rules of targeting under the laws of armed conflict.
The guidelines were to be ultimately received by Libyan opposition fighters with little or no official training in either military engagement or the laws of armed conflict and the working group endeavored to keep the language used in the guidelines as simple and straightforward as possible. While they were drafted in English, we were aware that the final product would be translated into Arabic and cross-checked certain terms and concepts with the LFJL Arabic speaker in the working group.
Due to the easy accessibility of relevant materials, including previously published manuals on the laws of armed conflict from other armed forces and general guidelines from the International Committee of the Red Cross (ICRC), a basic structure was assembled for the Libyan NTC guidelines. Customary international law and the 1949 Geneva Conventions served as the bedrock laws and documents.
Examples of rules included: the separation of male and female detainees (female prisoners were to be searched only by female guards), reminding NTC fighters that UN, ICRC and religious personnel hold a specially protected status as well as cultural, religious and educational buildings, and that a mechanism for complaints from within the NTC military must be set up. The guideline prohibiting the use of torture or intimidation required supplementary definitions as the torture of detainees had become somewhat commonplace in Libya under Qaddafi’s rule. The LFJL member on the team recounted to us the story of an elderly gentleman who had been recently arrested by Qaddafi forces. Upon his release, he was asked if he had been tortured or mistreated. He responded no, he was treated quite well especially compared to what the Qaddafi forces had done to the other younger men; they had only beat him up “a little bit” he said.
Additionally, and in certain instances, such as requiring the use of ICRC Capture Cards, the working group decided to err on the side of caution by creating more stringent rules leaving little room for last-minute battlefront decision-making so as to guarantee that the instructions on the guidelines would legally cover as much as possible.
When we had completed a rough draft of the guidelines, taking into mind cultural and religious sensitivities, the draft was then sent out to a select few authoritative experts in the area of the laws of armed conflict for comments and advice. Heavy and fruitful communication ensued and, amongst one of the edits made, it was pointed out to us that the guidelines should stress the illegality of using or recruiting child soldiers and those points were then incorporated into the guidelines.
By laying out these guidelines the NTC not only endeavored to instill a sense of accountability and set out basic standards of behavior. This of course does not mean that there have not been allegations of human rights abuses taking place at the hands of opposition forces. While these allegations are currently under investigation by the NTC, and if true are certainly cause for concern, an important first step has been taken in the creation of these guidelines in ensuring respect for international law.
Below are the 5 page [English] guidelines that were created by the working group which have been translated into Arabic and are currently being handed out to Libyan opposition forces:
CHRISTINE SEISUN is a masters student in International Law at the School of Oriental and African Studies (SOAS) University in London, England.