Small Wars Journal

Lessons for Libya: Law Enforcement from Day Zero

Fri, 08/19/2011 - 9:25am

See if this sounds familiar.  The West determines that a long detested regime has committed unacceptable acts that require intervention.  Not wishing a full-scale engagement, the international community authorizes support for a local rebellion, which it facilitates through various military and clandestine means.  The rebellion achieves popular status in the Western imagination largely through its opposition to the hated regime rather than an orientation towards particular ideals.  Most will recognize, of course, that this describes the current situation in Libya.  But few may remember that it is also precisely what occurred in Afghanistan following September 11, when a very small team of special operations forces enabled the Northern Alliance to retake the country from the Taliban. So how about the rest of the story?

During the early stages between the overthrow of the prior regime, and the full institutionalization of new, legitimate authorities, a “transition gap” arises.  Nascent institutions are susceptible to capture by nefarious actors.  Some local elites invest not in strengthening those institutions, but in padding their own coffers and flexing the muscle of their new empowerment.  Others who might wish to stay honest find themselves without international support, and must make compromises with threatening actors who initiated the race to the bottom.  The rights of local citizens are increasingly violated in the process, and the government fails to deliver the essential public services those citizens demand.  Over time, the much-heralded transition loses legitimacy.  Unfortunately, this darker postlude resembles the trajectory of Afghanistan following the overthrow of the Taliban; but Libya need not follow the same story line.

To avoid a similar outcome, the international community must use leverage points to ensure the creation and operation of honest law enforcement institutions that apply the law equally to all citizens, no matter how powerful they may be.  By acting to build strong law enforcement early, the international community can fill the transition gap and avoid key pitfalls of Afghanistan. 

First, the international community must recognize and utilize its leverage points.  The Libyan Transitional National Council, which leads the rebellion and will be responsible for the transition to peace, is currently lobbying for the U.S. and other countries to transfer billions of frozen dollars that the Qaddafi regime holds abroad.    

As I have argued in several articles regarding Afghanistan, there is a serious risk that injecting funds without proper oversight and controls can enrich illicit actors who utilize the funds to build their own criminal networks and prey upon their own citizens.  The likelihood for such challenges is greatest where internal factions will be prone to violent competition once the rebellion no longer has Qaddafi as a common enemy.  The recent assassination of the rebel’s top military commander, Gen. Abdul Fattah Younes, and the internal tribal rivalries that have surfaced as a result, are key warning signs that international officials must heed in facilitating financial support.

Second, the international community must also provide support to the Transitional Council to ensure the adequate establishment and operation of law enforcement institutions that can prevent, investigate, and punish crime.  The focus should be on building a robust police force with adequate investigatory capacity, shielding competent prosecutors from political influence, and enshrining a similarly independent judiciary that fairly administers the law. 

One primary issue to address will be the capacities and reliability of the local security services.  Remembering the vacuum following the disbandment of the Iraqi National Army, the international community will have to work carefully with the Transitional National Council to determine the reliability of individuals, to deal properly with those individuals too closely tied to the Qaddafi regime to be trustworthy, and to reorient to the new administration those capable of serving loyally.

Moreover, the prosecutorial organs of the state must be able to conduct their jobs independent of executive influence.  In Afghanistan, publicized examples indicate substantial interference by high level officials with a number of critical investigations.  The international community should support an adequate level of prosecutorial independence in whatever structure the Transitional National Council develops for enforcement of Libyan laws.

Adequate pay and security must also be provided for law enforcement and judges.  Though Afghanistan is racked with budget problems that an oil-rich Libya is unlikely to confront, an adequate and transparent pay structure must be established early on to avoid corruption in the future.  In addition, security must be sufficient to ensure that powerful actors cannot threaten judges in a way that compromises judicial administration. 

Finally, and perhaps most critical, no Libyan can be above the law.  A special unit should be trained from the initial phases of stabilization to investigate and offer evidence for the prosecution of high level corruption of the sort that has crippled the Afghan government.  The Transitional Council’s ability to bring Younes’s assassins to justice will be an excellent test-case for their seriousness in fairly administering justice.  Responsibility must be attributed all the way up the chain, with adequate prosecution and punishment of culpable parties.  The common perception in Afghanistan that the warlords who solidified their power during the transition gap enjoy absolute impunity from the law is perhaps the single greatest factor that undermines that government’s legitimacy and our own mission to stabilize the nation.

The Transitional National Council is on the verge of cutting off Qaddafi’s key supply lines, a strategic move that brings them substantially closer to victory.  In order to support the most effective transition possible – and ensure the legitimacy of a future Libyan government – the international community and the Council must make plans now to prevent, investigate, and punish malfeasance when the dust finally settles.  The Council has already shown an interest in doing so.  The international community must now capitalize on that interest by properly planning for the transition.

This Op-Ed builds on the original extended article, Closing the Transition Gap: The Rule of Law Imperative in Stabilization Environments, Kauffman Foundation, August 2011.