Property issues in Libya: A reminder that the road to sustainable peace still goes via root causes

by Rhodri C. Williams

What to say about Libya? Despite the slide from the country’s post-revolutionary and chaotic new normal to civil war, it is still too early to give up hope. While Libya may have yet to scrape bottom, many of the factors that argued for a sustainable recovery from Gaddafi’s long nihilistic night remain latent. And despite the increasing subordination of Libya’s politics to the influence of regional competitions and actors, the country still remains to some degree a case apart, churning in the region’s ideological divisions without the despair-inducing ethnic and sectarian fractures that threaten the Mashriq.

It seems a very long time since my work in Libya, on property issues that stalled (at best), displacement issues that exploded, and rule of law issues that have descended to a near farce, with mass trials of senior Gaddafi regime officials wrapping up amid power cuts and procedural irregularities. By all accounts, Ibrahim Sharqieh’s grim prediction that the lustration law forced through in 2013 would be the equivalent of the Iraqi de-Baathification process has been vindicated, as the heavily militarized winners of the revolution collapsed into open conflict with each other. Then comes IS in Sirte, refugee catastrophes in the Mediterranean, and the needless death of good and selflessly devoted Libyans.

The temptation is strong in such situations to cut losses and contain damage. For Europe, for instance, earlier efforts to build up a Libyan state that could be a responsible partner on migration issues have now given way to desperate proposals to unilaterally stem migration that bypass and undermine what remains of the Libyan state. Fortunately, the UN Special Envoy to Libya, Bernardino Leon, has shown extraordinary persistence, chivvying two sides that refuse to recognize each other into 80% of a peace deal even as economic collapse looms. Another refusal to write Libya off came last month, when the Legatum Institute revived the moribund debate over property issues in Libya.

Rest in peace Mohamed Al-Sweii

My colleague from my time with UNHCR in Libya, Sam Cheung, passed on the tragic news that Dr. Mohamed Al-Sweii was killed in the heavy fighting in Benghazi earlier this week. In the laconic delivery of the Alwasat article, as filtered through google translate:

…the deceased came out of his workplace Benghazi Medical Center to check on his family and as soon as he entered the area which is witnessing violent clashes was shot in the head, killing him instantly.

The first time I met Dr. Al-Sweii, in March 2012, he was waiting for us at a beachside cafe in Tripoli’s fashionable Gargaresh district. He received us with a dazzling grin, in big fashionable traffic cop glasses and an immaculate suit. I can’t recall exactly what I made of him at the time but I probably assumed at first he was just another one of the good-time boys cruising around liberated Tripoli in shiny cars and tight Italian t-shirts. My notes from early in the meeting are not without a dose of humanitarian snark in the margins (“not clear if has heard of the Guiding Principles on Internal Displacement”).

Whatever my first impressions, though, the rest of my notes spoke volumes. As the sun sank red to the Mediterranean, Mohamed walked me through a comprehensive aid delivery program built on the same goodwill and amateur enthusiasm that was powering every other government function and public service in Libya at the time. The difference being that his efforts targeted the virtual untouchables of the revolution, the communities driven out from their homes, persecuted and made to bear collective guilt for four decades of humiliation under the ousted dictator Muammar Gaddafi.

The next time I met Mohamed, it was in the cavernous bullet-riddled former Mercedes dealership in the center of town where he spent his days coordinating aid delivery, escaping to unwind in the cool breezes of Gargaresh only late in the afternoon. It was perhaps at this time I heard the whole story of how he had been a medical student in Benghazi when the revolution broke out and volunteered to fly back and forth to the front lines at Ajdabiya, rescuing battle-wounded overnight revolutionaries in a jerry-rigged ambulance.

Dr. Mohamed put a face on those turbulent times for me. It was him, young and idealistic, suppressing his fear by the things he could do with his own mind and his hands, who would build up a new and better country.

Now, three years after the revolution, Mohamed found himself back in Benghazi, once again risking his own life to save those injured in a far murkier and more ambiguous conflict. People like Mohamed, or the human rights lawyer Salwa Al-Bugaighis murdered last June in Benghazi are the most important resource Libya has. A country denied institutions cannot afford to lose the individuals who give of themselves most freely.

Rest in peace Doctor Mohamed. Libya, heal thyself.

Land and Post-Conflict Peacebuilding: The durability of Middle Eastern Civil Codes and durable solutions to displacement

by Dan E. Stigall

Dan E. Stigall is a Trial Attorney with the U.S. Department of Justice, Office of International Affairs. He also serves as an Adjunct Professor of International Law at the The Judge Advocate General’s Legal Center and School (U.S. Army). He previously served on active duty in the U.S. Army JAG Corps from 2001-2009. Any opinion expressed in this Article is solely that of the author and not necessarily that of the Department of Defense or the Department of Justice.

Stigall wrote on “ Refugees and Legal Reform in Iraq: The Iraqi Civil Code, International Standards for the Treatment of Displaced Persons and the Art of Attainable Solutions” in Land and Post-Conflict Peacebuilding and provides an update in this guest posting.

Even on something so small as a blog post, it is always a privilege to be able to collaborate with Rhodri Williams, whose work I have been citing and whose friendship I have valued since my time as Captain in the U.S. Army JAG Corps.  As an Army officer, I served in Iraq – mostly in Tikrit – during the era of the Coalition Provisional Authority.  That assignment gave me my first exposure to the problems associated with displaced persons, housing, and land issues attendant to conflict and post-conflict environments.  That assignment also permitted me to work closely with Iraqi jurists and Iraqi civil law, and intensified my interest in Middle Eastern legal systems, comparative law, and the nexus between comparative law and the myriad issues relating to post-conflict reconstruction.

Years after that initial experience in a conflict zone, a wave of social and political upheaval in the Middle East and North Africa has now resulted in new areas where state security governance is lacking and nascent democracies (or crumbling autocracies) find themselves unable to cope with new sources of instability.  Libya and Syria, in particular, have been profoundly impacted by this phenomenon, which has come to be known as the Arab Spring.  Both Libya and Syria have experienced the collapse of their governments’ key institutions and, in the wake of enormous political upheaval, each country now contains ungoverned spaces which are attracting and incubating a variety of unsavory and destabilizing transnational actors, such as terrorist organizations.

Moreover, as TerraNullius has reported, both Libya and Syria are each now experiencing destabilizing and significant displacement crises.  The number of internally displaced persons in Libya at the end of August 2012 was between 65,000 and 80,000, a population composed mostly of minorities who are unwilling or unable to return because of potential reprisals.  With regard to Syria, it was estimated that, as of early June 2013, as many as 4.25 million Syrians have been internally displaced and more than 2 million Syrians have fled and are living as refugees in neighboring countries.  This has prompted UNHCR to note, “Syria is haemorrhaging women, children and men who cross borders often with little more than the clothes on their backs.”

The acute problems facing Libya and Syria were, in part, the catalyst for my forthcoming article, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring.  My research into Libyan and Syrian civil law systems follows as something of an extension of my work on Iraqi civil law, but was also inspired by a comment in Chibli Mallat’s masterful text on Middle Eastern legal systems in which he notes that:

Civil codes in the Middle East are peculiar in two ways: they have proved more resilient than their public law counterparts, and modern civil codes function as stable institutions offering legal anchors which transcend political changes.

This observation is an important one – especially as it relates to post-Arab Spring countries and countries in turmoil – because of the fact that international actors seeking to create the conditions for peace and stability in the post-conflict environments of Libya and Syria must ultimately support or enable durable legal institutions.  Experience has taught that the durability of organic legal institutions is central to the task of restoring order and government functionality in post-conflict states.

New report analyses the rule of law in Libya (as the transitional vetting debate tests it)

I am very happy to announce that the International Legal Assistance Consortium (ILAC) has just published a new report based on the rule of law assessment I helped to organize last January in Libya. While I had a hand in writing the report, it is the product of a fruitful collaborative effort with the assessment team members, all of whom were experts representing ILAC’s member organizations. A pdf version of the report, as well as summaries in English and Arabic, can be accessed here.

The ILAC report focuses on the role of core rule of law institutions such as the private bar and judiciary, and sets out recommendations for enhancing both their independence and their effectiveness in a new, democratic Libya. A very important part of the report’s analysis focuses on how the legal system is affected by the current transition, and notes the dilemma for the judiciary in particular – in that regular courts are both saddled with the delicate task of bringing those accused of crimes in connection with the 2011 uprising to justice and are themselves likely to be the object of vetting efforts in connection to the role that some judges played under the Gaddafi regime.

Despite the rule of law focus, in other words, the report delves into a number of transitional justice issues, most notably prosecution and institutional reform. In this sense, it complements the earlier work I did for UNHCR on property and displacement issues, which approached the transitional justice debate in Libya primarily from the viewpoint of victims’ reparations. Our report also comes hot on the heels of the latest by the International Crisis Group (ICG), which focuses squarely on the current showdown between the state and judiciary on one hand, and revolutionary brigades on the other.

Report on property issues and displacement in Libya for UNHCR

by Rhodri C. Williams

Toward Tajoura, March 2012, picture by the author

Many TN readers will be aware that I spent the better part of last Spring working for the UNHCR on a report on housing, land and property (HLP) issues related to displacement in Libya. The research involved interviews with numerous internally displaced persons (IDPs), many of the officials directly or indirectly responsible for their welfare, as well as civil society activists and legal experts. The work was undertaken throughout the north of the country, including Tripoli, Misrata, Benghazi, Sirte, Ajdabiya, Tiji, Nalut, Yefren and Kikla.

The resulting report was published earlier this Fall and includes both immediate term recommendations for humanitarian programming and longer term observations on how the process of seeking durable solutions for Libya’s displaced relates to broader dynamics of transitional justice, rule of law reconstruction and sustainable development. Accordingly, those of you who have read my earlier short piece on HLP issues in Libya will find many of the themes introduced there greatly expanded upon here. 

The report goes into some detail and is not a light read at nearly 100 pages. The Executive Summary is a bit more manageable at 15 pages and closely tracks the four part breakdown of the full paper. However, in order to help TN readers get a quick overview of the main points in the paper, I have further compressed the summary down to about five pages, reprinted just below.

A great deal of credit is due to the UNHCR country office in Libya, and particularly to Senior Protection Officer Samuel Cheung, for recognizing early on the need to understand the nexus between property issues and displacement in Libya. The UNHCR also proved farsighted in providing a mandate not only to examine the humanitarian implications of property disputes, but also to extend the analysis to take in concerns related to transitional justice, rule of law and development.

Since its local release last Fall, the report has supported efforts by both national advocates and international observers to ensure that outstanding property questions in Libya are resolved in accordance with international standards. Such efforts will be crucial to achieving an end to the ongoing and protracted displacement of entire communities collectively punished for their imputed support for the Gaddafi regime, and thereby achieving meaningful national reconciliation.

The report also underscores the need for more research and further analysis in order to ensure that the resolution of HLP issues is based on Libyan realities as well as international standards. There have been some very promising signs on this front, including the inclusion of a study on property and housing issues in a broader project related to strengthening rule of law institutions in Libya run by the Hague Institute of Global Justice, as well as plans to shortly include an updated property rights profile of Libya in USAID’s land tenure country profiles series.

In sum – this paper represents a first stab at a complex issue that is crucial to Libya’s future. I am grateful to the UNHCR for giving me the opportunity to participate in this process and look forward to any comments and feedback from TN readers.

How I spent my Christmas break

One of the less memorable milestones for TN in 2013 will be the first passage of an entire month – January – without a single posting. The fact, as many of you are probably now aware, is that I have been completely taken up with some recent work with the International Legal Assistance Consortium (‘ILAC’, based here in Stockholm) on supporting rule of law efforts in Libya.

This work builds on research I did last year for the UNHCR on housing, land and property issues for IDPs and refugees in Libya, which had important rule of law and transitional justice implications. It also reflects a little bit of a return to the rule-of-law fold via another assignment last Spring, this one mapping and analyzing the emerging field of constitutional assistance for the Swedish Folke Bernadotte Academy (report to be published soon). The job with ILAC has involved core RoL concerns of the kind I started out with long ago in Bosnia – an assessment of the judicial system and the RoL institutions around it as both the objects and carriers of transitional reform.

So there have been a few changes in the make, and these have kept me very busy. One is a shift from freelance consultancy to something more in the way of a day job, and the other might be described as a shift in focus from a particular substantive concern (property) to the kind of institutions that safeguard access to and enjoyment of property and most other rights. Whatever comes of all this, I do plan to keep TN going, based on two equations. First, and most practical, less consultancy equals more disposable time (on that, more later, once I have extracted myself more fully from the hamster wheel).

But, second and more important, the times are such that I no longer feel I have to make a choice between ‘rule of law’ proper and the more humanitarian, human rights and development-oriented concerns of my consultancy career and this blog. One of the reassuring things in coming back to grips with the UN rule of law literature was the extent to which this area has explicitly become interwoven with human rights, transitional justice, and development discourses. Or as I put it in commenting on the run-up to the UNGA’s ‘high-level meeting’ on RoL last Fall, what seems striking is an “increasingly emphatic accommodation of legal empowerment and economic/social concerns in an area of practice that arguably began as a bastion of orthodox civil and political imperatives.”

And for those who persist in the belief that a step toward rule of law must entail a step away from social and economic concerns, I have another announcement that may be reassuring. As some of you know, regular TN guest-blogger Natalie Bugalski and her colleague David Pred have founded an independent research and advocacy organization, Inclusive Development International (IDI). Last Fall, I was honored to be asked to join them as an associate and quickly accepted. IDI is dedicated to supporting poor and marginalized peoples in the face of unaccountable political and economic institutions that promote harmful development activities and fail to properly implement safeguards to protect their rights. I cannot imagine a more timely and relevant rule of law challenge.

Libya goes to the polls

by Rhodri C. Williams

Hamdulillah! After weeks of increasing tension over last minute objections to the allocation of mandates in what is to be Libya’s first properly elected and fully sovereign legislature, and months of increasing uncertainty over the interim government’s commitment to human rights and the rule of law, the BBC confirms that the people will now have their say.

Is Libya ready for the results? Robert Kaplan and Kamran Bokhari point to the new Libya’s “low level chaotic violence” as an argument for withholding “cold-turkey democracy” from any new Syria to emerge from that country’s ongoing bloodbath. But, by my lights, the Economist gets it on the money this time:

Building respect for the law, after 42 years of Qaddafi’s bizarre rule, will be the hardest task. Hundreds of pro-Qaddafi prisoners (some say more) are still in the hands of militias, who have also recently arrested an Australian lawyer from the International Criminal Court at The Hague after she had come to visit Saif Qaddafi, the colonel’s son, who is held in Zintan. The new government will have to act fast to tackle such judicial shortcomings if the country is to be put firmly on a path to the rule of law. A peaceful election would be a giant first step.

Beyond the policy argument – that democracy is part of the solution, not part of the problem – there is the intuitive rationale that will have struck anyone who has traveled to Libya recently. Saleh, who just undertook his seasonal shift to a shadier spot in Tripoli’s old town coffee shop, has registered. He had no idea who he was going to vote for, the list of approved parties hadn’t even been announced yet with less than a month to go, but he couldn’t wait to vote. If the Libyans are really to ever own Libya, it cannot be by the right of conquest alone.

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Land, property and displacement in post-revolution Libya

by Rhodri C. Williams

An earlier version of this text was submitted to Forced Migration Review for its newly released Issue 39 on “North Africa and displacement 2011-2012”. The article has been published there in a shorter version. I can recommend the entire, highly topical magazine and am grateful to the editors for their permission to publish the longer version of my piece here.

By post-conflict standards, Libya has a relatively small population of about 70,000 internally displaced persons (IDPs). However, as a result of basic security concerns, many individual IDPs – as well as several entire displaced communities – face the prospect of protracted internal displacement. Despite national and local efforts to foster reconciliation, return will not be a realistic prospect for many until after the national elections currently scheduled for July. Inability to access pre-displacement housing, land and property (HLP) assets poses a significant obstacle to the achievement of durable solutions for almost all IDPs.

However, there is significant variation in the nature of the HLP problem. For households that remain displaced within their own communities due to the wartime destruction of their homes, durable solutions are largely contingent on reconstruction. However, for IDPs displaced outside of their places of origin, inability to access pre-war homes and properties is merely a symptom of the broader insecurity that has blocked virtually all return to date. In most cases, IDPs also face significant tenure insecurity in their current locations, whether they are in collective settlements or private accommodations.

Lurking behind both the tenure insecurity currently facing IDPs and their difficulties accessing pre-war property is a much broader question related to the sweeping and arbitrary redistributions of property undertaken during the forty-two year reign of Libya’s ex-dictator Muammar Ghaddafi. These waves of confiscation and partial compensation undermined the rule of law and sowed the seeds of corruption and legal uncertainty that continue to affect nearly all sectors of society in Libya. While these acts are largely viewed as illegitimate by the interim National Transitional Council (NTC), there is broad recognition that any peremptory attempt to revoke them would risk destabilizing the country.

As a result, these ‘legacy’ property issues are unlikely to be definitively resolved until after the upcoming elections, in the context of democratically-grounded legislative and constitutional reforms. From this perspective, the HLP question in Libya must be seen not only through a humanitarian lens, but also from the perspectives of transitional justice, national reconciliation, rule of law and economic development. While IDPs – and some refugees in Libya – may be disproportionately affected by this question, almost every constituency in the country has a stake in its outcome.

Costing stability against freedom: The minority dilemma in Syria and Iraq

by Rhodri C. Williams

In a recent discussion with a member of Syria’s Christian minority here in Sweden, I found myself conceding the point that a majority of the population may still support the al Assad regime and that many of its opponents in the region clearly have a political axe to grind alongside their professed humanitarian motivations. It was easy enough to dismiss the notion that Assad had been seriously interested in reform, but my interlocutor’s most troubling argument was that the regime had been – and remained – the sole guarantee of her and her communities’ physical safety.

In a media world almost saturated with analysis of the Arab Spring, an increasingly historically oriented strain of thinking has begun to revive the arguments that had become too threadbare to save Mubarak and Ghaddafi – après moi le déluge:

Look before you legislate? The challenges facing restitution in Libya

by Rhodri C. Williams

It seems that plans are now afoot in Libya for a full-scale program of restitution of properties nationalized and appropriated under the Ghaddafi regime. Bloomberg reported yesterday that a law envisaging a two phase process will be rolled out as soon as next month:

Libya will announce a law that will return land and buildings expropriated by late ruler Muammar Qaddafi to the original landowners “within weeks,” a senior member of the Land Ownership Committee said.

“Phase one will return unused lands, empty shops, buildings and villas taken by Qaddafi’s regime and then by the rebels to the rightful owners,” said Fawzy Sheibany, legal representative for the committee, in an interview in the capital, Tripoli. “This will mean millions of dinars can be invested in construction projects and provide employment.”

Phase two of the new law involves rehousing families residing in buildings on expropriated land and could take several years to implement fully, he said. The Ministry of Justice will deal with individual cases through a civil court.

On the face of it, there is every reason to welcome this development. The Ghaddafi-era expropriations were ostensibly meant to further public purposes but became, by all accounts, an arbitrary means of both punishing enemies and rewarding those the regime favored. Moreover, the resulting legal uncertainty in property relations was cited (in 2004) by a leading Middle Eastern law firm as a key structural obstacle to legal reform efforts during the run-up to the uprising:

As a result of abolishing real property ownership for investment purposes, the commercial real estate market has been completely distorted. There exists now a private land market and a public land market with a price gap that creates considerable uncertainty for both foreign and local investors. Compounding the problem, the [1997] Foreign Investment Law is not clear as to whether real property can be used as collateral or even can be freely transferred without government approvals. The government has announced plans to reform the laws governing property and rentals, but their scope is uncertain.

Finally, perhaps the most convincing ground for pushing for quick legislative measures is the need for the National Transitional Council (NTC) to be seen to lead from the front. In the wake of Amnesty International’s widely publicized allegations of human rights abuses by ‘out of control’ militias in Libya, anything the NTC can do to stamp its legitimate authority on matters of broad public interest appears welcome. In fact, this is a particularly important issue in regard to property. Recent reports such as this one by the Guardian indicate that the militias have become part of a pattern of spontaneous restitution, often carried out by means of violent self-help.

So what, one might ask, is not to like in a bill that serves not only justice but also economic development and political consolidation? The answer is that if it is rushed through without consultation, this bill may actually have the opposite effect, generating new cycles of grievance, reducing legal certainty and even undermining the authority of government in Libya if it proves impossible to effectively and consistently implement. Perhaps the most cogent argument for a deliberative approach to restitution for the prior regime’s confiscations is that this is to some extent a constitutional decision rather than merely a legislative one.