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Customary Practice and Restorative Justice in Libya: A Hybrid Approach


  • Customary Practice and Restorative Justice in Libya: A Hybrid Approach

    Najla Elmangoush

    Customary Practice and Restorative Justice in Libya

    A Hybrid Approach

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    The violence associated with Muammar Gadhafi’s decades of dictatorship continue to plague Libya four years after the end of his regime. Local and international reconciliation initiatives have failed to break the violence, whose roots extend deep into Libyan society and reach back into the colonial period. Ibrahim Sharqieh, deputy director of the Brookings Institution’s Doha Center, notes that this long legacy of violence is the main obstacle to peace in Libya.1

    The potential for sociopolitical change emerged with the revolution in 2011. By the time the revolution ended, however, some fifty thousand Libyans had been killed—and many continue to die.2 The deep personal and structural wounds inflicted on society need time and assistance to heal, but the fragile state and its degraded legal system cannot provide that help

    National and international policymakers have sought ways to promote stability and human security in Libya in the absence of a strong state and robust institutions. They have looked for ways to resolve the conflict, or at least to manage it. But the only way to bring enduring peace to Libya is to transform the conflict. Libya urgently needs to launch a process of conflict transformation. Whereas many proponents of conflict resolution regard conflict as something negative that must be controlled or ended, conflict transformation, as one of its chief exponents—John Paul Lederach—describes it, involves recognizing “that social conflict is naturally created by humans who are involved in relationships.” Conflict transformation is intended to create “constructive change that reduces violence” by increasing “justice in direct interaction and social structures” and responding “to real-life problems in human relationships.” 3

    This report argues that restorative justice—an approach that Mennonite communities in Ontario and Indiana developed in the 1970s—must be an essential component in any successful Libyan conflict transformation process. According to Howard Zehr, the father of restorative justice, “Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible.”4 Restorative outcomes may be particularly important to justice within transitional societal settings characterized by perpetual conflicts at the community level.5

    Restorative justice shares certain values and concepts with Libya’s customary system of law and governance. Conducted by traditional and religious leaders, the customary system was given a greater role in Libyan society during the Gadhafi regime, especially from the 1980s onward. Rather than try to ignore or control this legacy, we should think about creative ways in which we can transform both colonial and Gadhafi legacies into healthy relationships capable of helping and healing society. Moreover, by making the customary system an integral part of their restorative justice strategies, policymakers and practitioners can reach a majority of Libyans, for whom customary justice is both an accessible and an acceptable means of resolving their disputes. As and when the formal system is built or rebuilt, customary practices can be woven into it, creating a balanced, stable mechanism for resolving conflicts

    A new vision of restorative justice is needed, one that integrates restorative justice practices with customary practices to create a hybrid approach to conflict transformation in Libya. Such a model has the potential to be used not only in Libya but also in other transitional countries.

    This report is designed to stimulate debate. Our knowledge of the Libyan system of customary law is still somewhat limited by the scarcity of comprehensive scholarly studies of the subject, so some uncertainty necessarily attends any assertions. We need to consider—now, while Libya’s formal justice system is in disarray and conflicts of different kinds are threatening the lives and well-being of Libya’s people—how the customary system might further conflict transformation. Whether the UN efforts under way at the time of this writing to facilitate political dialogue between Libyan stakeholders bear fruit, Libya will need not just political cooperation but also conflict transformation to move toward a brighter future.

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