When your country changes from dictatorship to a democracy, do you allow the officials of the former regime to play a part in the nation's new politics?
Libya is the latest country to grapple with this question – and could be at risk of repeating mistakes made by other post-authoritarian countries. Just over a year since the end of the Libyan revolution, the country's General National Congress (GNC) is currently preparing to institute a "Political Isolation Law" that will prohibit politicians who were close to Col. Moammar Gadhafi's regime from taking political office.
Just days before the new law was announced last week, a group of GNC members issued a statement declaring that "anyone who participated in the destruction can not in any way be a tool for rebuild[ing] the state, and it is unimaginable that anyone who took part in the corruption of the social, political and economic life of Libya could ever be a cause for reform."
The decision by the GNC to introduce the law appears to have come in response to widespread frustration amongst Libyans at the possibility of former Gadhafi officials re-branding themselves to remain in power.
At first glance, this demand appears unproblematic. Proponents of lustration (as the practice of expelling former regime officials from government is known) argue that it is a necessary measure for consolidating the trust of citizens in democratic reforms.
There are precedents for such a law. Similar legislation (with the same name) was passed in Egypt . In Iraq, former members of Saddam Hussein's Baath Party were barred from office after the U.S.-led invasion, albeit with disastrous consequences. The official practice of lustration, as a mechanism of transitional justice, dates back to the experience of post-communist states in Eastern Europe. After finally escaping from the clutches of communist rule, states such as Poland and Czechoslovakia instituted lustration policies to exclude former communists from political office.
Still, lustration is inevitably a controversial mechanism for achieving post-conflict justice. It typically relies on the release of secret state documents (to provide names of former officials) which often cannot have their accuracy verified. It can ensnare innocent civil servants who played minimal and often technical roles. As a result, the process can resemble more of a witch hunt than a political vetting.
Lustration can also inspire political backlashes as excluded officials with significant material and political resources reorganize to challenge or undermine their country's political transition.
And some political figures may attempt to use lustration not as a means to achieve justice but to exclude competitors from favourable positions. Moreover, in states where virtually the entire political class was associated with a past regime (including Libya), lustration may disqualify or irrevocably taint political actors whose skills could positively contribute to the country's transition.
Given the above, it will be critically important that Libya – like any other state considering the use of lustration policies – be very careful in deciding precisely who is to be excluded and on what grounds. Many of the failures of past lustration policies have been the direct result of poor planning and confused policies.
It is thus troubling that very little about the new Political Isolation Law is currently known. As some observers have noted , the law is theoretically designed to focus on senior officials of the regime and not to target minor members of the government.
Still, precisely what this means remains unclear. Given the country's recent history, this is problematic. Libya's revolution was fuelled by, and on many levels led by, the defection of Col. Gadhafi's inner circle to the rebels and their political wing, the National Transitional Council. It remains unclear if any of these individuals would be able to hold political office.
Dealing with the past is never an easy task for states emerging from a period of atrocity and autocracy. These countries have to deal with the need to move forward as well as the expectations of citizens that justice be served.
But justice means different things to people. For many Libyans, part of what justice means is that those officials who were associated with–and perhaps partially responsible for – 40 years of Gadhafi rule are never again allowed to assume positions of political influence. The wisdom of such a policy remains murky at best. But if Libya is to go through with its Political Isolation Law, it would be wise to do so carefully and communicate this new law clearly. If it chooses not to, the government risks taking a significant step back in its transition, one that will be very difficult to reverse.
Mark Kersten, creator and co-author of the blog Justice in Conflict , is a researcher at the London School of Economics where he studies the effects of the International Criminal Court on peace processes in Libya and northern Uganda.