Thursday, September 15, 2011

Seeking legal remedies where no law exists

Reporting from Tripoli, Marc Herman describes a horrific attack on a family by a group of Khaddafi loyalists. But what remedies are available? As Marc concludes,
If what appears to have happened to the Mrayed family really did, it would surely be a war crime, and almost certainly only one of many such cases that will emerge from Libya's war. But journalists, to our great frustration, lack subpoena power or the ability to compel on-the-record testimony. The Mrayed family must not only wait for a formal investigation by a viable legal authority, they must wait for Libya to build one.

1 comment:

Andrew Oh-Willeke said...

There are several ways of dealing with this in the context of a legal proces (vigilanteeism is, of course, another and the Medieval Icelandic process of having a court declare guilt or innocence and authorizing private violence has strong parallels in Islamic law to make it familiar) that have historical precedent.

One is to apply the existing Libyan criminal code. Many countries with new regimes apply the prior regime's substantive laws by default long afterwards until anyone can get around to passing something new. For example, Germans still rely on Nazi era precedents in apolitical contract and property law and corporate law cases. Colonies often apply colonial civil codes even if not adopted legislatively. Many U.S. states applied common law before there was any positive law adopting it. Europeans started using the Roman law in civil disputes before any legislative enactments to that effect. Before the Normans standardized the common law in England, local "custom and practice" was given force of law and proven up by litigants along with the facts of the case. As long as communities could agree on someone to serve as a judge, with a revolutionary council appointment perhaps, they could set up ad hoc courts.

A second obvious option would be to apply Islamic law. It was probably adopted at least in name by the Libyan regime, its legitimacy does not depend on the legitimacy of the state, it does not require a state bureaucracy to apply procedurally, the harshness is appropriate to the circumstances, and incarceration which the regime lacks the resources to implement is rarely used in Islamic law.

A third option would be the war trial scenario under the international laws of war with a number of recent international precedents, as noted.

A fourth option would be military justice imposed by the rebel military with military tribunals trying people accused of being their enemies and having done something wrong.

A fifth option would be to defer to the authority of tribal elders to dispense justice as many Libyans have tribal affiliations. But, the problem there is the resources to impose a non-capital sentence.

A sixth option would be to forgive and forget. The Revolutionary Council could declare an amnesty for everyone who swears allegience to it and perhaps consents to testify before a truth commission.