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Transitional Justice in the Libyan Constitutional Transition

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Keywords: Libya; transitional justice; transitional constitutionalism; constitutional transitions; human rights; Shari’a; reparations.

This article provides a detailed analysis of the transitional justice approach included in the 2017 Libyan draft constitution. The premise on which this work is based is that transitional justice is now increasingly recognized in constitutional charters as a relevant factor in constitution-building and human rights protection. Libya’s constitutional transition emerged as a unique opportunity to address the violence of the past, offering legal leverage to redress, where possible, large-scale human rights violations. However, this process is replete with obstacles, mirrored by the selective approach to transitional justice opted for in Libya, which grants immunity for gross human rights violations committed by anti-Gaddafi groups while simultaneously allowing purges against political opponents of the current political leadership. This trend is also confirmed by the transitional justice provisions included in different pieces of ordinary legislation adopted after the fall of the Gaddafi regime. After providing an in-depth analysis of the transitional justice strategies adopted so far during the post Gaddafi political and constitutional transition in Libya, this article highlights the challenges that transitional justice faces in contexts where the transition has assumed the form of ‘rupture’ due to the military defeat of the previous regime. Comparing different constitutional drafts adopted in post-Gaddafi Libya, the article shows that the language of transitional justice has become progressively looser, casting doubts on the real will of the political leadership to implement the transitional justice agenda. Finally, the article suggests that the transitional justice strategies outlined in constitutional and ordinary norms can be harmonized with international standards in order to avoid a revenge-based outlook of Libya’s way to deal with the past

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