Libyan and western human rights groups have accused Libya’s government of giving a ‘blanket amnesty’ for war crimes committed by rebel forces in last year’s civil war after the publication of a new addition to the criminal code.

By Chris Stephen, Tripoli

Law number 38, published on May 3 by the ruling National Transitional Council, gives amnesty to rebels for “acts made necessary by the 17 February revolution.”

It adds that former rebels are also justified in committing acts if they were for “success or protection”, an elastic term that critics say can absolve those committing war crimes.

Lawyers for Justice in Libya, a Tripoli-based rights group, condemned the law as “a significant step backwards on Libya’s path to establishing a country built on human rights.”

International rights groups have been equally scathing, pointing out that the law was passed by a non-elected transitional government with no public debate and secret meetings.

No glory

The law was announced on the same day as Law 37, which criminalises the “glorification” of Muammar Gaddafi and makes it an offense to criticize the government, the people or the “February 17 Revolution”--the official date of last year’s uprising.

Taken together, rights groups say it appears to reinstate some of the procedures of the former dictatorship, with Sarah Leah Whitsom of Human Rights Watch calling it a “cut and paste job” . She says Law 37 is almost word for word the text of a former Gaddafi law--Article 195--except that “February 17 Revolution” has been substituted for the “Al Fatah Revolution”--the coup that brought Gaddafi to power in 1969.

Both laws raise unanswered questions about the fate of justice for war crimes in Libya, not least the prosecution of Saif Al Islam Gaddafi. Libya’s justice ministry insists his trial will take place in Libya despite objections from the International Criminal Court, which has indicted him for crimes against humanity.

If both laws are made retrospective, they will also allow Gaddafi to be jailed simply for objecting to the revolution, without the need to prove he took actual command of loyalist forces.

Even Gaddafi’s lawyer might find himself in trouble because Law 37 makes illegal the “glorification of Gaddafi, his regime, his sons.”

The Amnesty law follows months of criticism from Human Rights Watch and Amnesty International about the detention and torture practiced by a minority of militias on former Gaddafi supporters.

Not a single case has been opened by the Libyan government, and there are fears that Law 38 will close the door on such prosecutions.

Been there, done that

“These laws are, unfortunately, ones which are familiar to all Libyans after living under Gaddafi’s rule for 42 years,” said Elham Saudi, director of the Lawyers for Justice in Libya. “In Libya, we paid a heavy price... to ensure an end to prisoners of conscience, only for the NTC to ensure a continuation of a system for repressing voices that dissent.”

He said his group plans to challenge the law as a violation of the temporary constitution the NTC put in place last August, which promised to respect universal covenants on human rights.

But Moussa Elkony, a member of the NTC for the southern city of Obari, insisted Law 38 would not excuse criminal acts. “This is not intended to be a blanket amnesty,” he said. “If someone from the militias killed a prisoner out of rage or revenge, he should be punished.”

He pointed out that a strict reading of the new law means that a judge would need to agree that a criminal act really did form a vital component of the revolution for a suspect to be excused.

Military necessity?

This law touches on one of the recurrent debates over modern war crimes law--which is whether ‘military necessity’ trumps the need for justice.

The firebombing of German cities in World War Two and the atomic bombing of Hiroshima and Nagasaki are acts that would today be ruled crimes against humanity, yet both advanced the war aims of the Allied Powers.

In passing a law that excuses criminal acts--the means--if they advance the ends of a war, Libya has added fuel to the fire.