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Archives for Legal Affairs

Revenge in Timbuktu

The fabled city of Timbuktu, in north-western Mali, was occupied by armed Islamist groups for almost a year. At the end of January, French and Malian soldiers retook control of the city. Since then, its people have been enjoying the taste of freedom again. But the light-skinned Arab and Tuareg communities are accused of complicity with the extremists and have already suffered revenge attacks. France24’s reporters Alexandra Renard, Eve Irvine and Chady Chlela went to Timbuktu.





Potential Pitfalls in the EU’s “More for More” Approach to Democratization in North Africa

5+5 Nations
President Chirac’s address at the closing of the 5+5 Dialogue Summit in 2003, with disgraced Ben Ali and now defunct Gaddafi there. Will Europe change its views of North Africa?

Since June of last year, the European Union has been touting its new reform plan for its European Neighborhood Policy (ENP), which calls for a complete revamping of the Union’s political and economic relations with the ‘Southern Mediterranean’ countries, most notably North Africa.  Among the central tenets of the new ENP is the “more for more” approach, which stipulates greater rewards in economic assistance and EU market access for partner countries in exchange for substantive and far-reaching political reforms.  While at first this seems to be a welcome change in rhetoric, and hopefully policy, from the EU, questions remain as to whether this really represents a true policy shift that will help strengthen reform and democratization in North Africa, or if such an approach will simply perpetuate a cycle of mismanaged EU-North Africa relations.

One of the glaring failures of the pre-Arab Spring ENP is that despite democratization rhetoric, the policy was largely aimed at promoting stability and the status quo.  The Neighborhood Policy itself was borne out of the European Security Strategy, and was initially intended to build a ‘ring of friends’ around Europe.  Over the years, rather than promoting democratic governance, the ENP simply reinforced “firm” governance.  Part of the failure of the ENP to illicit democratization in countries like Morocco or Tunisia stemmed from miscalculations over incentives.  What the EU was willing to offer the countries of the Maghreb in terms of economic cooperation was not sufficient to move these regimes to make any real changes to their government structure or practices.  However, an equally important part of the ENP’s failure also stems from the EU’s rush to offer the Moroccan and Tunisian governments “Advanced Status” negotiating terms despite little to no progress on the reform front, thus removing remaining incentives for change.  On the whole, for the pre-Arab Spring era, it would appear that the EU greatly overestimated its influence and miscalculated its way into insignificance.

While Tunisia is in the process of a real, if not completely smooth, transition, Morocco’s progress on reforms remains in flux.  The EU recently concluded an agricultural trade deal with Morocco, allowing it access to the EU market.  This is the trade agreement that Morocco has been desperately pursuing for years to little avail.  The deal came on the heels of a Constitutional referendum, changes to the enumerated powers of the Prime Minister, and a parliamentary election where the Islamist PJD won a majority, a first in a country where Islamists have been routinely imprisoned for political activity.  On the surface it would seem like the ‘more for more’ approach is working; substantive political reforms for greater economic benefits from the EU.  Yet, Morocco’s reforms over the last year aren’t nearly as substantive as they appear to be. 

The King still has de-facto full executive power, leaving the Prime Minister extremely weak, with a newly begun judicial reform process still dependent on the King’s executive privilege.  The constitutional reforms have come under scrutiny for the differences between the French and Arabic versions of the texts regarding the King’s title of “Commander of the Faithful,” meaning that it remains a crime to publicly criticize the monarchy or the state, and any of its institutions.  Mouad Belghouat, a 19 year old Moroccan rapper, better known as El Haqed (“the enraged”), knows this well.  He now sits in jail for a protest song “Dogs of the State,” where he blasted the country’s National Security Agency for its corruption and political oppression in subservience to the monarchy.  His defense team at his trial was not allowed to make a closing statement.  Additionally, the makhzen, or royal court, continues to maintain its grip over Morocco’s ‘private sector’ further enriching itself and the monarchy at the economic expense of ordinary Moroccans.  This hardly resembles the rosy facade of Morocco as, “a model for the region,” painted by European officials.

Additional concerns are now emerging over Algeria, with its recent election where the ruling party consolidated its hold on power and increased its share of seats in parliament.  Unlike Morocco, Algeria has an Association Agreement with the EU but not an Action Plan (AP).  Algeria expressed interest in beginning AP negotiations with EU in December 2011 and subsequently invited EU election observers to monitor the May legislative elections.  Beyond this, Algerian progress on reforms has been perfunctory.  Protests in the capital, Algiers, remain banned.  Although the government lifted the emergency law on the rest of the country, Amnesty International notes that protests still require authorization from the government which is routinely denied, amounting to a de facto ban on demonstrations.  Most recently, Algerian artists and intellectual launched a petition calling for true freedom of expression in the country.  The signatories heavily criticized the Ministry of Culture’s stranglehold over artistic expression citing its tendency to threaten and intimidate anyone who does not follow its strict directives and rules regarding cultural expression.

The goal of the Algerian government, based simply on the public rhetoric of its officials, has been to stave off the possibility of large-scale protest movements that would fundamentally challenge the government’s ruling authority.  The government has been fairly successful in preventing a Tunisia/Egypt/ Libya style revolt and even a Moroccan style youth protest movement.  Since it is relatively clear what the government’s intentions are and have been since the beginning of the Arab Spring, the recent election looks more like electoral theater aimed at placating European and Western criticism than substantive reform.  EU electoral monitors and high officials have already declared the election a success and are ready to offer Algeria the Action Plan it desires.  

The prospect of EU officials being naively unaware that these non-democratic governments are attempting to finesse favorable outcomes within the ENP at low political cost to themselves seems rather unlikely.  Behind the laudatory press releases and friendly diplomatic statements, EU diplomatic staff and Brussels bureaucrats must surely be aware of the blatant shortcomings of these countries’ respective reform processes.  Rather, the rush to provide rewards to these regimes for largely cosmetic reforms results from the belief that the EU can lure these governments into more genuine reforms if it can convince them it is offering the new ‘more for more’ approach in good faith.  While the EU has rightly calculated that it does indeed need to offer more, it has yet to recalibrate its tendency to offer too much too soon.  That Morocco has now achieved its long stated goal of an agricultural deal means that the EU has relatively little left to offer that is so highly desired by the government as to elicit further democratic reforms at a level and pace suitable to European sensibilities.  This leaves little optimism that as negotiations with Algeria begin, a new EU-Algeria Action Plan won’t look and feel dismally similar to previous sets of ENP Action Plans that failed to induce democratization and political reform.

Libya and the ICC: In the Pursuit of Justice?

The ongoing post-conflict reconstruction process in Libya is reigniting a crucial debate among transitional justice advocates as to the role the International Criminal Court (ICC) can play in delivering justice and redress to victims of grave crimes. In the midst of the February 2011 revolution, the ICC opened an investigation into crimes allegedly committed in Libya, based on United Nations Security Council (UNSC) Resolution 1970. The Court has to date issued three arrest warrants for Saif Al-Islam Gaddafi, Abdullah Al-Senussi and Muammar Gaddafi. The warrant against Muammar Gaddafi was withdrawn following his death, while Al-Islam Gaddafi is currently detained in Libya and Al-Senussi in Mauritania. Neither has been turned over to the ICC. The Libyan National Transitional Council (NTC) has asserted that it wishes to try these men in Libya, while France has declared its intention to purse Al-Senussi’s extradition for earlier alleged crimes. However, the ICC, along with many human rights groups nationally and internationally, question Libya’s capacity to conduct fair trials against these high profile individuals.

Key Justice Concerns in Libya

In my capacity as regional coordinator for the Coalition for the International Criminal Court Middle East and North Africa (MENA), I recently spoke with several Libyan legal and civil society stakeholders who expressed the view that existing Libyan laws do not always conform to human rights standards and need to be repealed or amended. Although the recent adoption by the NTC of a transitional justice law has been a step in the right direction, the capacity of the Libyan legal system to deliver justice remains weak.

In its February 2012 report, the United Nations International Commission of Inquiry on Libya stated that Libya was marred by widespread human rights abuses and brutal repression under Muammar Gaddafi’s decades of autocratic rule. It is against this background of impunity that the call for rule of law and reforms in the justice system needs to be assessed. Members of the legal and judicial sectors played a decisive role in the 17 February revolution, with the independence of the judiciary one of their main demands. Although the law under Gaddafi provided for an independent judiciary, this was not the case in practice. The government used summary judicial proceedings to suppress domestic dissent, interfered in the administration of justice by altering court judgments, replaced judges and manipulated the appeals system. A 2010 United States State Department report on human rights practices in Libya found that the judiciary also failed to incorporate international standards for fair trials, detention and imprisonment. It is therefore unsurprising that the judicial system in Libya collapsed in the aftermath of the 2011 conflict, and continues to suffer from a lack of trust on the part of victims seeking redress as well as the Libyan public at large.

Today, most international human rights organizations seem to acknowledge that the situation in Libya remains generally precarious. Reports of widespread abuse of internally displaced people, especially women and children, as well as violations of the rights of detainees, are particularly worrying to the human rights community. A February 2012 Amnesty International report detailed ongoing arbitrary detention, unauthorized interrogations, coerced confessions and torture. In the same month, the International Commission of Inquiry on Libya similarly declared that “[b]reaches of international human rights law continue to occur in a climate of impunity […] forces loyal to Libyan leader Muammar Gaddafi carried out mass executions and tortured suspected regime opponents, amounting to crimes against humanity.”

Fighting Impunity: Domesticating the Rome Statute?

The process of enforcing justice is a complicated and often contentious one. The new Libyan leadership now faces the challenge of rebuilding a country that is, according to the International Commission of Inquiry on Libya, “devoid of independent institutions, a civil society, and a judiciary able to provide justice and redress.” At this critical juncture, the availability of the ICC— an internationally recognized body—to promulgate principles of global importance is vital to fostering universal justice principles and steering Libya away from victor’s justice. So how can the ICC inspire the criminal justice reform process within Libya?

Continued monitoring by international entities can be a catalyst for reforms of national justice systems, encouraging states to implement best practices from other national systems and ensure the continued capacity of its legal and judicial sectors. It is therefore difficult to negate the role of international justice has to play in accountability efforts in Libya. At a time when the ICC is expanding its important work to end impunity for genocide, crimes against humanity and war crimes, Libya can take advantage of the Rome Statute—the Court’s founding treaty—for its own national legal framework and repeal the special laws in force during the reign of Gaddafi. The Libyan criminal justice system must meet new challenges based on a changed international environment. The police, prosecutors and legal framework must become scrupulous actors in observing evolving standards of human rights and accountability. In addition to the role that the ICC could play in upholding due process in the trial of Saif Al-Islam Gaddafi and Abdullah Al-Senussi, once Libya’s new legislature is in place, ratification of international human rights law conventions—including accession to the Rome Statute—would lend legitimacy to the country’s commitment to universal human rights.

Dr. Cherif Bassiouni, an authoritative source on international criminal justice and chief architect of the ICC, stresses that “it is important that any kind of post-conflict justice be owned by the people affected.” The challenge he puts forth is how international criminal law, expanded in the Rome Statute, can be used to carry out effective prosecutions at the national level. In this context, the international community should assist Libya in its efforts to establish transitional justice and in fostering prosecutions within the national system, bearing in mind that some forms of justice mechanisms already exist in Libya.  As the country embarks on legislative reforms, the Rome Statute in particular should be instrumental to incorporating international crimes into the Libyan criminal code and repealing any statutory limitations applying to such crimes. Equally important is the establishment of an independent judiciary and capacity strengthening programs for the judiciary, police and prison service— in particular in the development of specialized investigative and prosecutorial skills, as well as the consideration of the rights of victims in all accountability mechanisms in accordance with ICC norms.

Libyan authorities are slowly responding to their citizens’ demands for accountability and justice and there is a growing interest in supporting human rights and adapting to international human rights law standards. These recent developments bolster the legitimacy of the ICC in its effort to relay a strong message that there can be no impunity for genocide, crimes against humanity and war crimes. In the words of a young Libyan human rights activist, Jamila Azar, “Libyans want to cultivate a culture against impunity to end the Gaddafi legacy and prevent a repetition of repressive practices.” Today, the country is one of the many examples of how societies in the MENA region grapple with balancing the ideals of traditional, national and international law with the imperative of making society more just for their people.