About the Report

Much has been written about the practice of restorative justice in 

democratic settings where the rule of law is respected, but much 

less is written about applying restorative justice in transitional 

settings. Focusing on Libya, this report highlights some of the 

opportunities and obstacles inherent to a transitional setting, 

calls for a deeper understanding of customary law as it is 

practiced in Libya, and suggests how customary law could be 

used to help establish restorative justice there. The report is part 

of a portfolio of rule of law work that the United States 

Institute of Peace (USIP) is carrying out in Libya.

About the Author

Najla Elmangoush is a professor of criminal law at Benghazi 

University and a former private-sector attorney. Currently 

a Fulbright scholar and USIP country representative in 

Libya, she previously headed the Public Engagement Unit in 

Libya’s Executive Office of the National Transitional Council, 

which handles outreach with newly emerging civil society 

organizations. Elmangoush holds a bachelor’s degree in law 

(Garyounis University) and master’s degrees in criminal law 

(Benghazi University) and conflict transformation 

(Eastern Mennonite University). 

2301 Constitution Ave., NW • Washington, DC 20037 • 202.457.1700 • fax 202.429.6063

Special Report 374 June 2015

© 2015 by the United States Institute of Peace. 

All rights reserved.

Contents

Introduction 2

The Roots of Libya’s Current Crisis 3

Reconciliation, Customary Law, 8

and Traditional Leaders 5

Combining Customary Practice 8

and Restorative Justice 8

Overcoming Potential Obstacles 10

Conclusion 12

Najla Elmangoush

Customary Practice 

and Restorative 

Justice in Libya

A Hybrid Approach 

Summary

• Since the death of Muammar Gadhafi in October 2011, violence in Libya has increased dramatically. Armed groups, whose ranks have grown since the revolution, have coalesced into 

two warring factions. Explosions, assassinations, kidnappings, and fighting between militias 

are commonplace. The central government is extremely fragile.

• Reconciliation initiatives have failed to end the violence. Some have been too short lived, 

others too narrowly focused. 

• Libya’s formal legal system is in disarray, leaving traditional leaders to handle a wide variety of 

crimes. They are also playing an essential role in resolving not only violent conflicts between 

families but also broader ones, such as those between militia groups and the government.

• Conflict-related crimes and those involving human rights violations are most appropriately 

dealt with by a formal legal system, however. 

• Legalistic and punitive processes will not be enough for Libya to make the transition from 

war to peace and to address its legacy of violence. To do so, the country must also turn to 

restorative justice and its focus on the needs of victims, offenders, and the community. 

• Most studies of restorative justice have focused on democratic settings rather than transitional 

societies. Restorative justice in places such as Somaliland, however, suggests that it might 

also be effective in Libya, given the many concepts and values that the customary system 

and restorative initiatives share.

• In integrating restorative principles with customary practices—thereby transforming the relationships that sustain violence—Libya would create the opportunity to move toward peace 

and stability. 

UNITED STATES INSTITUTE OF PEACE www.usip.org

SPECIAL REPORT
2 USIP.ORG • SPECIAL REPORT 374

• When the formal legal system is rebuilt, legislation should be introduced to integrate customary practices into the formal system, which would give traditional leaders an enduring role 

in mediating disputes.

Introduction

The violence associated with Muammar Gadhafi’s decades of dictatorship continue to plague 

Libya four years after the end of his regime. Local and international reconciliation initiatives 

have failed to break the violence, whose roots extend deep into Libyan society and reach back 

into the colonial period. Ibrahim Sharqieh, deputy director of the Brookings Institution’s Doha 

Center, notes that this long legacy of violence is the main obstacle to peace in Libya.1

The potential for sociopolitical change emerged with the revolution in 2011. By the time 

the revolution ended, however, some fifty thousand Libyans had been killed—and many 

continue to die.2 The deep personal and structural wounds inflicted on society need time 

and assistance to heal, but the fragile state and its degraded legal system cannot provide 

that help.

National and international policymakers have sought ways to promote stability and 

human security in Libya in the absence of a strong state and robust institutions. They 

have looked for ways to resolve the conflict, or at least to manage it. But the only way to 

bring enduring peace to Libya is to transform the conflict. Libya urgently needs to launch a 

process of conflict transformation. Whereas many proponents of conflict resolution regard 

conflict as something negative that must be controlled or ended, conflict transformation, 

as one of its chief exponents—John Paul Lederach—describes it, involves recognizing “that 

social conflict is naturally created by humans who are involved in relationships.” Conflict 

transformation is intended to create “constructive change that reduces violence” by increasing “justice in direct interaction and social structures” and responding “to real-life problems 

in human relationships.” 3

This report argues that restorative justice—an approach that Mennonite communities 

in Ontario and Indiana developed in the 1970s—must be an essential component in any 

successful Libyan conflict transformation process. According to Howard Zehr, the father of 

restorative justice, “Restorative justice is a process to involve, to the extent possible, those 

who have a stake in a specific offense and to collectively identify and address harms, needs, 

and obligations, in order to heal and put things as right as possible.”4 Restorative outcomes 

may be particularly important to justice within transitional societal settings characterized 

by perpetual conflicts at the community level.5

Restorative justice shares certain values and concepts with Libya’s customary system of 

law and governance. Conducted by traditional and religious leaders, the customary system was 

given a greater role in Libyan society during the Gadhafi regime, especially from the 1980s 

onward. Rather than try to ignore or control this legacy, we should think about creative ways in 

which we can transform both colonial and Gadhafi legacies into healthy relationships capable 

of helping and healing society. Moreover, by making the customary system an integral part 

of their restorative justice strategies, policymakers and practitioners can reach a majority of 

Libyans, for whom customary justice is both an accessible and an acceptable means of resolving their disputes. As and when the formal system is built or rebuilt, customary practices can 

be woven into it, creating a balanced, stable mechanism for resolving conflicts.

A new vision of restorative justice is needed, one that integrates restorative justice 

practices with customary practices to create a hybrid approach to conflict transformation 

in Libya. Such a model has the potential to be used not only in Libya but also in other 

transitional countries. 

The views expressed in this report do not necessarily 

reflect the views of the United States Institute of Peace, 

which does not advocate specific policy positions.

To request permission to photocopy or reprint materials, 

e-mail: permissions@usip.org

About the Institute

The United States Institute of Peace is an independent, 

nonpartisan institution established and funded by Congress. 

Its goals are to help prevent and resolve violent conflicts, 

promote postconflict peacebuilding, and increase conflict 

management tools, capacity, and intellectual capital 

worldwide. The Institute does this by empowering others 

with knowledge, skills, and resources, as well as by its direct 

involvement in conflict zones around the globe.

Board of Directors

Stephen J. Hadley, (Chair), Principal, RiceHadleyGates, LLC, 

Washington, DC • George E. Moose (Vice Chair), Adjunct 

Professor of Practice, The George Washington University, Washington, DC • Judy Ansley, Former Assistant to the President and 

Deputy National Security Advisor under George W. Bush, Washington, DC • Eric Edelman, Hertog Distinguished Practitioner 

in Residence, Johns Hopkins School of Advanced International 

Studies, Washington, DC • Joseph Eldridge, University Chaplain 

and Senior Adjunct Professorial Lecturer, School of International 

Service, American University, Washington, DC • Kerry Kennedy, 

President, Robert F. Kennedy Center for Justice and Human 

Rights, Washington, DC • Ikram U. Khan, President, Quality Care 

Consultants, LLC., Las Vegas, NV • Stephen D. Krasner, Graham 

H. Stuart Professor of International Relations at Stanford 

University, Palo Alto, CA • John A. Lancaster, Former Executive 

Director, International Council on Independent Living, Potsdam, 

NY • Jeremy A. Rabkin, Professor of Law, George Mason 

University, Fairfax, VA • J. Robinson West, Chairman, PFC 

Energy, Washington, DC • Nancy Zirkin, Executive Vice 

President, Leadership Conference on Civil and 

Human Rights, Washington, DC 

Members Ex Officio

John Kerry, Secretary of State • Ashton Carter, Secretary of 

Defense • Gregg F. Martin, Major General, U.S. Army; President, 

National Defense University • Nancy Lindborg, President, 

United States Institute of Peace (nonvoting)
USIP.ORG • SPECIAL REPORT 374 3

This report is designed to stimulate debate. Our knowledge of the Libyan system of 

customary law is still somewhat limited by the scarcity of comprehensive scholarly studies 

of the subject, so some uncertainty necessarily attends any assertions. We need to consider—now, while Libya’s formal justice system is in disarray and conflicts of different kinds 

are threatening the lives and well-being of Libya’s people—how the customary system might 

further conflict transformation. Whether the UN efforts under way at the time of this writing 

to facilitate political dialogue between Libyan stakeholders bear fruit, Libya will need not 

just political cooperation but also conflict transformation to move toward a brighter future.

The Roots of Libya’s Current Crisis 

To understand Libyan culture and sociopolitical structure, one must first appreciate the 

powerful influence of two historical legacies, one of violence, the other of divisiveness. 

By examining these carefully, Libyans and members of the international community will be 

better able to see that what appear to be obstacles to the peace process may actually be 

opportunities to foster positive societal change. 

A Legacy of Violence 

The pattern of violence in Libya has affected the society’s collective psychology. This history 

began with the start of Italy’s thirty-year colonial rule in 1911. Many other violent episodes 

followed. Three events in particular exemplify the modern period and have been incorporated into the narrative of national identity.

Execution of a national hero. Omar Mukhtar (1858–1931) was a leader of the resistance 

movement against the Italian military occupation of Libya for more than twenty years.6 He 

was then captured by the Italians and later, by order of the Italian court, hung in front of 

his followers. Contemporary Libyans remain proud of this national hero, and the sense of 

grief for his loss still resonates. The movie about his life and death, Lion of the Desert (1981), 

is shown each year on September 16, the day Mukhtar died.7 During the Libyan revolution, 

people protesting in Benghazi chanted Mukhtar’s famous phrase, “We win or we die.” The 

same words were printed on leaflets distributed at the time. Writing in the Los Angeles 

Times, Robert McDonnell cites a retired army officer who described Mukhtar as the “spiritual 

leader of the Libyan revolution.”8

Prison massacre. In 1996, more than twelve hundred prisoners were executed without 

legal justification at the Abu Salim prison. The massacre inevitably had a profound impact 

on the prisoners’ families, relatives, friends, and communities but also affected Libyan 

society more broadly.9 Those who tried to speak out against what happened at the prison 

were imprisoned or killed by the regime. When the revolution broke out in 2011, a number of 

U.S. media outlets, including Foreign Policy, the New York Times, TIME, and Middle East Online, 

identified the Abu Salim massacre as the symbolic trigger for the uprising. In a report for 

Channel 4 News broadcast on March 1, 2011, for example, Lindsey Hilsum described entering a house where “about a dozen women and men were sitting on sofas around the living 

room, each silently holding up a photograph of a son, a brother, a husband, a father. They 

were relatives of some of those killed in...Abu Salim prison in 1996. It was their story which 

sparked the uprising in Benghazi.”10

Civil war. The most recent violence is the bloody civil war of the past few years. The 

revolution is over, but people are reluctant to give up their weapons, preferring to use violence to solve their conflicts over the legal system. As of September 2014, 916 Libyans had 

been violently killed that year.

 The revolution is over, but 

people are reluctant to give up 

their weapons, preferring to use 

violence to solve their conflicts 

over the legal system.
4 USIP.ORG • SPECIAL REPORT 374

In addition, eight thousand detainees captured during the 2001 armed conflict remain in 

detention facilities. According to Human Rights Watch, “Around 3,000 of these are held in 

government custody, the rest by militias.” Most have no access to lawyers.11 Also, more than 

seven thousand people from different cities were displaced when they sought to escape 

from the vengeance of armed groups. 

Gadhafi’s Divisive Society

Gadhafi’s dictatorship lasted forty-two years, during which time he cultivated social, economic, and political chaos. He established, for example, a culture of division by creating privileged 

citizen groups called revolutionary committees that supported his ideology.12 Committee 

members spied on other citizens and informed on dissidents, who were then sent to jail. He 

also recruited uneducated, impoverished people from small towns and rural communities to 

serve in public office, giving them wealth and power in exchange for their unqualified support.

Gadhafi undermined the education system by reducing teacher salaries—as well as those 

of other professionals—and by revising school curricula to support his ideology. Professionals who wished to further their education were required to sign statements of support for 

him. Policies such as these were designed to bolster allegiance to the regime but effectively 

divided society. 

On Gadhafi’s order, mosques were closed throughout the day and opened only for prayers. 

Those who attempted to pray in mosques before dawn were jailed on charges of plotting against 

the government. Years of this oppression not only fostered hatred of the Gadhafi regime but also 

helped breed the extremist Islamist ideology used to justify much violence today.

Many who disagreed with Gadhafi’s policies emigrated, creating a Libyan diaspora. Gadhafi had previously exiled dissidents, threatening them with detention should they visit or 

reenter the country. After the revolution, some exiles returned, but much of Libyan society 

did not accept them. Libyans who had suffered through the dictatorship felt that members 

of the diaspora had not and resented them for it.13

The socioeconomic, ideological, and geographic rifts created by Gadhafi persist today and 

obstruct efforts to build national unity.14 Furthermore, the example of his divisiveness inspires 

even his foes to follow suit. Many of the postrevolutionary leaders have adopted approaches 

similar to those used by Gadhafi. Just as Gadhafi drew sharp divisions between those who 

supported him and those who did not, so have the Thuwars—those who supported and fought 

for the 2011 revolution. In keeping with the culture of division, Libyans who had supported 

Gadhafi (known to the revolutionaries as Azlam) have been socially isolated since his death. 

In fact, the elected General National Congress (GNC), which was formed in August 2012, went 

so far as to pass the Isolation Political Law (No. 13/2013, PIL), which barred any person who 

had held a government position under Gadhafi from participating in or holding office in the 

new government. This has prevented everyone with any previous government experience from 

contributing their expertise to the new Libya.15

Libya has an official if fragile functioning official state (consisting of the government 

and the GNC) as well as an informal state that controls weapons and money and is run by 

Thuwars, who expect privileges for the role they played in liberating the country. Other 

political factions, however, want the Thuwars to return to their normal lives and to allow the 

new government to build a national army loyal to the nation rather than to the revolution 

and its commanders. Many Thuwars now belong to one or other of the seventeen hundred 

militias currently active in Libya.16

Many Libyans take the view that though Gadhafi is dead, his ethics and ideas live on and 

still permeate daily life. Political factions continue to divide society and to provoke violence. 

During the eight-month civil war, for example, Misrata City was targeted and bombed daily. 

On Gadhafi’s order, mosques 

were closed throughout the day 

and opened only for prayers. 

Those who attempted to pray in 

mosques before dawn were jailed 

on charges of plotting against 

the government. This oppression 

not only fostered hatred of the 

Gadhafi regime but also helped 

breed the extremist Islamist 

ideology used to justify much 

violence today.
USIP.ORG • SPECIAL REPORT 374 5

Gadhafi recruited people from Tawergha to fight against the Misratans. After Gadhafi’s death, 

people from Misrata burned the city of Tawergha in revenge and exiled its forty thousand 

residents—including women, children, the elderly, and others who had not been involved in 

the fighting—to areas throughout Libya. These people now live in poor conditions in camps. 

Efforts to bring the two sides—Tawerghans and Misratans—together to discuss the possibility 

of reconciling or at least allowing the exiles to return to their city have led nowhere. 

Given Libya’s culture of violence and Gadhafi’s legacy of division, policymakers and 

would-be peacebuilders must confront several questions: How can the collective narratives 

of violence, divisions, and extremism in Libyan society change? How can the legacy of violence be challenged? More important, how can these legacies be reframed as opportunities 

to create positive change?

Reconciliation, Customary Law, and Traditional Leaders 

The number of conflicts that need to be transformed in Libya, and the number of parties 

that need to be reconciled, are each depressingly large. The gloom is all the more dark 

because efforts at reconciliation launched since the revolution have so far failed. In most 

cases, failure springs from the same set of reasons: persistent divisions in society, the political isolation of former Gadhafi supporters, and an abiding desire for revenge. 

To take just one example, two tribes in the south of Libya—the Tebu and the Awlad Suleiman—have long resented each another, in large part because Gadhafi supported one and 

neglected the other. The Awlad Suleiman, who were originally from Egypt rather than Libya, 

were given rights during the Gadhafi regime to own land and gain Libyan nationality. They 

consider themselves to be Libyan and to have fought for Libyan rights. The Tebu, however, view 

them as foreigners without the right to own land and settle in Libya. Many local initiatives 

have attempted to bring these tribes together to end violence between them, but all have 

failed. John Paul Braithwaite and Tamim Rashed, researchers from the Australian National University, recount one reconciliation meeting at which three members of the Tebu were killed. In 

March 2012, a meeting was convened in Sabha, a small town in the south of Libya, conducted 

mainly by traditional leaders of tribes who were not involved in this conflict. The meeting, 

however, did not get beyond the preliminary (“understanding”) phase of the reconciliation 

process before a heated argument and a firefight broke out.17

A successful conflict resolution dialogue usually requires two key ingredients: an effort 

to be inclusive and another to come to agreement on the agenda. Both elements were 

missing in Sabha in March 2012. For example, although tribal leaders were brought together 

for the reconciliation, no women or youth were included in the dialogue. Not enough time 

was allotted to establish consensus on what the dialogue would address. The needs of the 

parties in moving toward peace were not definitively identified. 

Sabha is just one illustration of how difficult the reconciliation process in Libya is given 

the county’s history of violence and societal divisions—divisions that now include the chasm 

between supporters of the revolution and former Gadhafi supporters. An article in Middle East 

Voices recommends that reconciliation efforts in Libya “should be predicated on a viable and 

legitimate national reconciliation program between the forces behind the revolution and the 

supporters of the former regime, most of who live in exile in neighboring countries.”18 This 

diagnosis is surely sound. But how is such a reconciliation process to be conducted?

A Potential Role for Customary Law and Traditional Leaders? 

Fortunately, given the urgent need to heal its divisions, Libya has one significant asset: the 

prominent role already played in dispute resolution by its traditional leaders using custom-
6 USIP.ORG • SPECIAL REPORT 374

ary law. Under Gadhafi, tribal leaders became more influential in society than the central 

government, especially during the security crisis, which peaked in 2012. During much of 

his regime, Gadhafi promoted a culture of bedouinization that elevated the tribal identity 

above that of the family and nation. Bedouinization instituted customary practices as a 

mechanism for dealing with conflicts between families and between tribes. 

Customary law in Libya follows the same principles as that in Somaliland; it is a “process of 

elder-based consensus which places great weight on tradition in order to determine outcomes 

and impose fines, usually as camels or cash.”19 Customary law in tribal societies typically 

includes four elements: first, building trust between the leaders and victim’s family through 

visiting the family and expressing condolences for their loss; second, selecting unbiased, neutral tribal leaders to be brought from outside the community to serve as respected mediators; 

third, compensating the victim’s family, such as by giving the family a certain number of sheep 

or something of equivalent value; and, fourth, proposing an agreement to resolve a problem 

between the two parties.

In Libya, when a crime (whether as minor as petty theft or as serious as attempted murder) 

is committed against an individual, the individual has two kinds of rights: a personal right to 

report the crime and insist on punishing the offenders by going to the police and following a 

legal process, and a state’s right, because the crime is considered to be against the state—and 

thus, the state can intervene to seek justice for the individual’s safety. Traditional leaders—or 

customary law—can help bridge these two rights and achieve justice for all involved.

For example, Ahmad, a businessman from a well-known family in Benghazi, was stabbed by 

two men while walking at night; he received minor injuries. At the time, no one recognized the 

offenders, but Ahmad’s father went to the police station to report the crime. A week later, two 

strangers knocked at the door of the home of the tribal leader of Ahmad’s family. The two men 

represented the offenders’ tribal leaders; they were inquiring about Ahmad’s health. A week after 

that, they visited again, this time asking Ahmad’s family to waive their right to go to court and, 

instead, to settle the matter privately because the two attackers were minors, acting under the 

influence of alcohol, and were not expected to cause trouble again. Ahmad’s father agreed to 

renounce his personal right but did not drop the right of the state. The issue was eventually 

resolved during an official meeting between the traditional leaders from both sides. The leaders 

made the decision on behalf of the two families: The offenders were jailed for a short time.20

Ahmad’s story neatly illustrates the complex layers within the Libyan system and customary law’s potential as a tool of restorative justice. Traditional leaders can significantly affect 

the dynamic of the relationship between two parties in a conflict, even when the conflict 

involves the state. For instance, the postrevolutionary government of Libya turned to tribal 

leadership in hopes of facilitating reconciliation meetings between the government and a 

militia that had seized four oil ports on the eastern coast. 

This conflict began when Ibrahim Jathran, the guard of the four oil ports in the east, recruited 

a militia of his own because the central government in Tripoli was incapable of protecting the 

eastern coast and providing security. On March 8, 2014, Jathran’s militia took control of all four of 

the ports, placing pressure on the central government and the GNC to grant Jathran’s demand for 

local governance. Libya before Gadhafi’s era, although unified, existed as three locally governed 

provinces: East, West, and South. Jathran was demanding a return to this system. As a result 

of this crisis, Prime Minster Ali Zeidan resigned and left the country three days later.21 The GNC 

tried to resolve the situation by sending government representatives to the militia group at the 

port, but the militia group refused to speak to them.22 Only when the government asked tribal 

leaders to mediate was there a productive conversation and any possibility of reconciliation. In 

the end, after a series of conversations negotiated over a month, the militia returned control of 

the ports to the government.

Traditional leaders can 

significantly affect the dynamic 

of the relationship between two 

parties in a conflict, even when 

the conflict involves the state. 
USIP.ORG • SPECIAL REPORT 374 7

The advantages of customary law in a weak state, especially one mired in conflict, are 

many. For instance, customary practice can function with minimal preparation and resources. 

Even though the Tebu conflict was not successfully resolved, the attempt at negotiation 

required little travel time, low expense, and was quickly planned and implemented. Formal 

legal proceedings in Libya can take years and still fail to yield a decision or other solution. 

Most courthouses in Libya are bombed out, most judges have had their lives threatened and 

so have left the country or changed jobs, and the police force is too weak to protect the legal 

system and its employees.23

Some elements of customary practice are more restorative than those of the state’s 

formal legal system. Tribal leaders take the time to get to know both parties, to build relationships and trust, to give gifts, and to focus on repairing relationships that have been 

destroyed in a conflict. These practices help restore trust between parties.

One must be careful, however, to avoid idealizing traditional practices. Customary law can 

impede justice as well as further it. According to Erica Harper, customary justice can “block 

access to justice and legal empowerment. Customary justice systems can also be barriers to 

legal empowerment when they provide a remedy or build consensus around a resolution that is 

discriminatory.”24 Some traditional leaders use their power to get the results they want rather 

than to find a solution that meets the needs of all parties. 

Even so, Harper recognizes the advantages of customary law. Individuals, she notes, often 

depend on customary justice practices as the principal pathway to a remedy for a grievance or 

dispute. These practices, which evolve as values change over time, are part of the social, cultural, and political structure of community life. As a result, customary practices and processes 

can be used to help solve certain types of conflict. In Libya, traditional practices are more 

likely than the formal judicial system to be attuned to the linguistic and cultural landscape in 

which local conflicts arise.

Exactly how large a part the customary law system could play in conflict resolution and 

restorative justice efforts in Libya is hard to determine, not least because scholars have yet to 

undertake any extensive studies of the country’s customary justice system. No comprehensive 

study exists, either in Arabic or in any Western language. Until such studies, which would be 

welcomed not only by academics but also by conflict resolution practitioners, become available, we must be careful to acknowledge our uncertainty about the scale of the contribution 

customary law might make. But there seems little reason to doubt that it does have the potential to play a significant role. This is especially clear given examples from elsewhere in North 

Africa of states that have recognized customary practice through formal legislation, including 

recognition by exclusion or incorporation, general codification, incorporation, adjustment, and 

accommodation.25 One notable example is Somaliland.

Lessons of Somaliland and Their Relevance for Libya

Somaliland, a self-declared independent state internationally recognized as an autonomous 

region of Somalia, shares significant characteristics with Libya. Both use the Arabic language, 

and both are predominately Sunni Muslim. Both have been occupied at various times by the 

Ottoman Empire, by Italy, and by Great Britain. When not occupied by other nations, Libya and 

Somaliland have seen dictatorships and civil wars. Today, both countries are postconflict areas.

The two states, to be sure, also have important differences. Somaliland has fewer resources. 

Its people are more impoverished. It has a longer history of recent conflict, and its people have 

been victims not only of war crimes but also of genocide. The practice of customary law in 

Somaliland is more widespread and integral to daily life than in Libya. Indeed, customary law 

in Somaliland has been the foundation for Somali social, economic, and political life since the 

seventh century.26 In Libya, the role of customary practice has been more diverse, inconsisCustomary practice can function 

with minimal preparation 

and resources. Formal legal 

proceedings in Libya can take 

years and still fail to yield a 

decision or other solution. 
8 USIP.ORG • SPECIAL REPORT 374

tent, and informal, in part because “historically, Libya was characterized by sets of connections 

between relatively autonomous polities,” such as Tripoli and Misrata.27 Libya also has had a 

longer history of centrally organized government, albeit not a strong one.28

According to Barry Hart, “the Somali Republic had historically been without a central 

government, instead having a society governed by clan structures and traditional problemsolving mechanisms.”29 As a consequence, soon after seceding from Somalia, Somaliland was 

able to establish a functioning legal system that included customary law.

In an article published in 2010, Barry Hart and Muhaydin Saed discuss the complex structure 

of customary law in Somaliland, which embeds tradition within a Western-style government 

and emphasizes customary law more strongly than in Libya. “The Somaliland constitution,” the 

authors explain,“outlines three separate, but not mutually exclusive, legal systems: sharia law 

(based on Islamic traditions and interpretations of the Quran), civil law (based on officially 

binding punishments and agreements), and customary law (consisting of rules used by councils of elders to regulate life and resolve conflicts at the clan and sub-clan levels).”30 The 

kinds of conflicts dealt with by the elders extend to murder. In the case of murder, the police 

and courts may be involved first, with elders brought in if the parties request an outside or 

nonjudicial process. The elders then inform the courts of their decision. The following case illustrates customary law and how it interacts with civil law:

A member of a tribe murdered a member of a different clan. The offender was 

arrested, and the victim’s family was given a choice by the court to have the 

perpetrator tried by the court system under civil law or to have the case adjudicated 

by a traditional council of elders....Seven elders, chosen from different clans came 

together in a council and agreed that the perpetrator should make amends to the 

family of the deceased by giving the victim’s family and the clan 120 camels or the 

equivalent in Somali currency.31

Traditional leaders in Somaliland rely on a process that involves patience, listening, and 

negotiation to reach an agreement. This process has some similarities to that in Libya, such as 

building trust through contacting other tribes’ leaders to hear their insights and perspectives. 

Negotiations consist of bringing tribal leaders to act as respected mediators, exchanging goods 

and gifts, and asking for an agreement on a method for resolving the problem.

Combining Customary Practice and Restorative Justice

Customary law and governance in Somaliland, and in Libya, is currently capable of dealing 

effectively with a wide range of disputes—but not with all kinds. Both states face the challenge of dealing with human rights violations and their subsequent impact on politics and 

security, but traditional leaders lack the necessary knowledge and training on how to handle 

the impact on victims of war crimes, such as torture and the use of rape as a weapon of war. 

Traditional leaders also lack the power to impose the kind of sanctions, such as lengthy custodial sentences, that most Libyans want perpetrators of conflict-related crimes to be given.

Traditional leaders are never likely to be able to handle conflict-related crimes, the complexity of which is daunting for all but highly specialized and well-resourced legal professionals and 

courts. Libyan elders and other traditional leaders, however, could help promote reconciliation 

between former enemies and defuse disputes that threaten to lead to human rights violations. 

To expand their role in this fashion, traditional leaders will need to be trained in the principles 

of restorative justice. 

A central goal of restorative justice is to restore relationships, not only between victims 

and offenders but also between entire communities that have been directly involved in a 

Traditional leaders are never 

likely to be able to handle 

conflict-related crimes, the 

complexity of which is daunting 

for all but highly specialized and 

well-resourced legal professionals 

and courts. Libyan elders and 

other traditional leaders, 

however, could help promote 

reconciliation between former 

enemies and defuse disputes 

that threaten to lead to human 

rights violations.
USIP.ORG • SPECIAL REPORT 374 9

conflict. Restorative justice has indigenous and religious roots that recognize a community 

responsibility to address wrongdoing and the harm it causes and to be involved in making 

things as right as possible.32 

This emphasis within restorative justice on community responsibility makes restorative 

justice ideally suited to help break the cycle of violence in Libya. The principles of restorative 

justice can fit well in the Libyan context because Libyans already value strong, interconnected communities and have great respect for their traditional leaders. Restorative justice 

as a process can include all stakeholders in Libya: perpetrators, victims, and the communities and other groups of which they are a part, including civil society, government, militia, 

tribes, prodemocracy groups, and pro-Gadhafi groups. If restorative justice approaches were 

to be integrated into Libya’s customary practices for handling conflicts, traditional leadership would be better able to address the harms that have been done, the ongoing needs of 

the victims, and how the community can support them, and could become central to the 

transition process. Security would be improved both in the short-term and the long-term 

because the training and process would prepare leaders to handle future conflicts as well as 

those of the present. 

What might this merging of restorative justice approaches and customary practices look like 

in practice? Take the example of the conflict between Misrata and Tawergha, which affects not 

only these two cities but also all of Libya. More than forty thousand Tawerghan refugees have dispersed to a variety of cities, where they live in overcrowded camps with few basic services, high 

crime rates, and low employment. Many Libyans outside the two cities feel responsible for the 

suffering of these refugees and want to help them resolve their conflict and improve their lives.

Tackling this conflict through a combination of restorative justice and customary practices might involve traditional leaders taking the following steps, which together amount, 

in Zehr’s words, to engaging “affected parties in a process that encourages collaboration 

and problem solving.”33

1. Traditional leaders, who have been trained in restorative justice principles and practices 

and who have the support of civil society organizations that focus on mechanisms to 

resolve intergroup conflicts, research the causes behind the conflict and take time to 

understand the causes and explore the parties’ needs. 

2. The leaders organize separate meetings with the parties; conduct interviews with the 

parties and with other stakeholders, including women, men, youth, and members of 

political parties; and use conflict analysis tools to gather more information. The traditional 

leaders listen to both sides of the conflict to better assess how they have been affected 

by the dispute, the challenges they face, the rights they possess, and their demands.

3. The leaders bring the parties together in a safe environment. Creating a safe environment 

means choosing the right time, preparing, and being clear about the purpose of the 

intervention. The location should be neutral—for example, representatives from Misrata 

and Tawergha, both of which are in the west of the country, could meet in Benghazi, 

which is in the east.

4. Within the safe environment, the leaders help the parties find common ground. For 

example, the two cities had a very good relationship before the revolution. Their residents 

shopped at the same shops, intermarried, and traded with one another. They have a 

common history that can be built upon. They also have common identities: They are 

not only neighbors but also Libyan and Muslim. Building from these commonalities, 

traditional leaders can help the parties understand the harm that has been done, the 

dignity that has been violated, and the price that individuals not even involved in the 

violence of the revolution have paid. 
10 USIP.ORG • SPECIAL REPORT 374

5. The parties, in a process facilitated by the traditional leaders, brainstorm how to repair 

the harms done. For instance, in the Misrata-Tawergha dispute, possible solutions might 

include providing financial restoration and relocating the homes of offenders’ families. 

Relocating the family of a murderer to a distant city for one year is a common step in 

the customary system. This resolution reduces the likelihood of revenge attacks and gives 

the victim’s family time to heal.34 This process could be repeated on a large scale with 

families from the Misrata-Tawerghan dispute.

6. Drawing on Islamic beliefs in forgiveness and compassion, both sides decide to make a 

new start to their relationship and move forward in peace, even if they cannot put painful 

memories to one side. Nearly all Libyans are Sunni Muslim and thus have similar beliefs.

7. The offenders share their stories, accept responsibility for the wrongs they have done, and 

explain what kind of threats and pressures motivated them to act as they did. (Although 

customary law practice is victim oriented and does not permit the offender to be part of 

the process, adapting the principles of restorative justice would require that traditional 

leaders include the offenders—Tawergha fighters, for example—in the process.)

8. Traditional leaders encourage victims to share how the wrongs done to them have affected 

their lives, hoping to empower them to heal and overcome the challenges they face daily.

9. Sharing these stories builds an emotional understanding between those who have done 

wrong and those who have suffered wrong, thereby creating the possibility—though not 

the guarantee—for empathy and forgiveness to grow. 

10. The traditional leaders identify resources in both communities to support both the victims 

and the offenders and to take steps to prevent further conflict.

International organizations that specialize in restorative practices could help provide 

traditional leaders with the education in restorative justice they will need to shepherd the 

process. For example, a small group of specialists could travel to Libya to teach an intensive 

training workshop to a small group of traditional leaders, religious leaders, legal professionals, 

and local nongovernmental organization workers. A local Libyan organization could partner 

with this international group to combine the insider and outsider perspectives. A second phase 

of training might consist of these new local trainees sharing their newfound knowledge with 

additional local leaders as well as some from the law sector of civil society. Finally, in a third 

phase, the new team of community members, now trained in restorative justice principles and 

practice, consisting of both tribal and religious leaders and members of civil society trained in 

law and other related professional fields, can assess which Libyan conflicts might be tractable 

to an approach that combines restorative justice and customary law. 

After every restorative justice initiative, the trained leaders could reflect on whether their 

process met the following six criteria, which are adapted from Zehr’s flexible framework:

 Does the process address harms, needs, and causes of the different stakeholders? 

 Is the process adequately victim oriented?

 Are offenders encouraged to take responsibility? 

 Are all relevant stakeholders involved? 

 Is there opportunity for dialogue and participatory decision making?

 Is the process respectful to all parties?35

Overcoming Potential Obstacles

This hybrid process of customary-restorative justice is likely to face many obstacles, any one 

of which might derail the process. 
USIP.ORG • SPECIAL REPORT 374 11

One potential problem is the impact of traditional gender roles. Women as well as men 

must be included in the process if it is to be both fair and equitable because war presents 

crimes, such as rape, that primarily target women. However, Libyan gender stereotypes give 

privileged status to men in customary justice and view women as, at best, peacemakers, 

usually just as victims or, in the case of rape, even as offenders. The customary system 

needs to recognize the potential of training well-respected female leaders and participants 

in communities to address gender sensitive issues and partner with justice initiatives. 

Before the revolution, women seldom participated in and engaged with civil society. During 

the revolution, however, women were able to break this stereotype and play a significant 

role. Since then, however, some extremist groups have targeted activist women, assassinating some and intimidating others into withdrawing from civil society. It is vital to prevent 

the silencing of women if restorative justice is to be successful in Libya.

Another potential obstacle is fear of domination, either by traditional leaders, who might 

exclude others from the practice of restorative justice, or by armed groups, which might 

intimidate those entrusted with resolving disputes. One goal of using a hybrid of customary 

law and restorative justice is to de-escalate armed conflicts and human rights violations 

that heavily armed militia groups have perpetrated to undermine traditional leadership since 

the ousting of Gadhafi. Integrating restorative justice principles with customary practice 

could empower traditional leaders in the Libyan society, especially given that the rule of 

law is still fragile. 

A third obstacle is that restorative justice is a new concept for most Libyans. For a 

customary-restorative justice process to work, Libyan society needs support from international organizations and restorative justice practitioners, as well as from legal professionals 

and local civil society, to educate not only the traditional leaders but also the larger Libyan 

society about the importance of restorative justice. A massive effort to educate the public 

about its benefits is needed.

Fourth, the traumas generated by Libya’s violent history, Gadhafi’s oppressive regime, and 

the violence and instability of recent years complicate the present reality, adding new layers 

of trauma to an existing strata of trauma. Furthermore, at a personal level, many Libyans, 

especially victims of injustice, suffer from humiliation and shame, which in turn induce or compound trauma. How trauma affects both victim and offender in Libya needs to be explored, 

especially the ways in which victimization and trauma, if not adequately addressed, can both 

cause people to become stuck in a victim identity and lead to further offending behavior. 

None of these obstacles is necessarily insurmountable, however. Gender stereotyping, 

for example, could be reduced by training equal numbers of men and women in restorative 

justice practices, thereby increasing the likelihood that women’s interests will be better 

represented. No traditional leaders are female, but shaka—women who work in the mosques 

and help women with personal issues, such as family problems and conflicts between women 

and their husbands or their mothers-in-law—could be trained. Including women such as 

these in the training process along with male leaders would enable women to share in the 

leadership of restorative justice practices.

To take another example, the need to educate Libyans about restorative justice could be 

addressed in a public education campaign to promote the benefits of restorative justice and 

reconciliation processes in postconflict areas. Such efforts might include distributing leaflets, 

presenting seminars, and sponsoring media broadcasts of documentaries about reconciliation 

processes from other postconflict countries, such as Somaliland and Rwanda. Additionally, significant books and articles about the role of restorative justice in transforming conflict (such 

as Zehr’s Little Book of Restorative Justice) could be translated into Arabic.

One goal of using a hybrid of 

customary law and restorative 

justice is to de-escalate armed 

conflicts and human rights 

violations that heavily armed 

militia groups have perpetrated 

to undermine traditional 

leadership since the ousting 

of Gadhafi.
12 USIP.ORG • SPECIAL REPORT 374

Above all, proponents and practitioners of customary-restorative justice must acknowledge 

that their work will inevitably encounter obstacles, must try to anticipate the particular challenges that they will face, and must devise specific strategies in advance and put them in 

place to address each of those challenges. Acknowledging the seriousness of obstacles from 

the outset will help to minimize later frustrations. Contingency plans will be vital. Practitioners 

must also be courageous and persistent when they encounter setbacks.

Conclusion

“The logic of restorative justice,” notes Braithwaite and Rashed, “is that where it is hardest 

to do, it is most important to do.”36 Certainly, obstacles to its use in Libya are significant, 

but so is opportunity to use it, integrated with the country’s customary justice and governance system, to help repair the health of Libyan society. 

Although the formal legal system is barely functioning, traditional leaders can expand the 

role they already play in handling crimes and defusing disputes, both large and small. This 

should be seen as an interim solution pending later decisions by Libyan policymakers about the 

relationship between the customary justice system and the formal justice system. 

A complementary role, and perhaps a more enduring one, for a customary system hybridized with restorative justice principles and practices is to promote reconciliation and conflict 

transformation. If Libya is to overcome its legacy of violence and division, and heal the traumas of its recent past, it needs to restore (or in some cases nurture) relationships between 

individuals, groups, and communities. Well-trained traditional leaders might even engage with 

the extremist, al-Qaeda-affiliated Islamist groups that include jihadis returning from Iraq and 

Syria, seeking to persuade the former jihadist exiles that violence is the wrong path for Islam 

and that they would be better off reintegrated into mainstream Libyan society. 

Libya will need support from the international community to provide its traditional leaders, and other members of civil society, with the necessary training in restorative practices. 

This support must be given in the form of partnerships that respect local leaders and allow 

them to have ownership of the customary process. Insiders and outsiders will need to collaborate and think creatively if they are to connect the fractured people of Libya, empower 

traumatized persons, restore healthy relationships, and build a secure society.
USIP.ORG • SPECIAL REPORT 374 13

Notes

1. Ibrahim Sharqieh, “Reconstructing Libya: Stability Through National Reconciliation.” Brookings Doha Center 

Analysis Paper no. 9 (Washington, DC: Brookings Institution, December 2013), 6, www.brookings.edu/research/

papers/2013/12/03-libya-national-reconciliation-sharqieh.

2. Global Research, “The Lies of the Mainstream Media: According to Telesur, 50,000 Killed in NATO War on Libya, 

Telesur Journalists Speak Truth on Libya,” Global Research Centre for Research on Globalization, September 17, 

2011, www.globalresearch.ca/the-lies-of-the-mainstream-media-according-to-telesur-50-000-killed-in-nato-waron-libya/26618.

3. John Paul Lederach, The Little Book of Conflict Transformation (Intercourse, PA: Good Books, 2003), 6–7.

4. Howard Zehr, The Little Book of Restorative Justice (Intercourse, PA: Good Books, 2002), 11.

5. Kerry Clamp, “Restorative Justice as a Mechanism for Peace-building,” in Restorative Justice in Transition, ed. Kerry 

Clamp (New York: Routledge, 2014), 109.

6. “A Symbol of Resistance: Omar Mukhtar,” World Bulletin, May 1, 2014, www.worldbulletin.net/news/135231/asymbol-of-resistance-omar-mukhtar.

7. Clarissa Clò, “Mediterraneo Interrupted: Perils and Potentials of Representing Italy’s Occupations in Greece and 

Libya Through Film,” Italian Culture 27, no. 2 (2009): 5. See also Benjamin Rivlin, “Unity and Nationalism in 

Libya,” Middle East Journal 3, no. 1 (1949).

8. Patrick J. McDonnell, “In Libya, a Long-Dead Hero Rises Again in East,” Los Angeles Times, May 6, 2011.

9. Amal Obeidi, “From Forced Reconciliation to Recognition: The Abu Salim Case in Historical Perspective,” 

in Searching for Justice in Post-Gaddafi Libya: A Socio-Legal Exploration of People’s Concerns and Institutional 

Responses at Home and from Abroad, ed. Jan Michiel Otto, Jessica Carlisle, and Suliman Ibrahim (Leiden: Van 

Vollenhoven Institute, Leiden University, 2013), 148.

10. See the blog post by Andy Worthington, “How the Abu Salim Prison Massacre in 1996 Inspired the Revolution in 

Libya,” March 1, 2011, www.andyworthington.co.uk/2011/03/02/how-the-abu-salim-prison-massacre-in-1996-

inspired-the-revolution-in-libya/.

11. International Crisis Group (ICG), “Trial by Error: Justice in Post-Qaddafi Libya.” Middle East/North Africa Report no. 

140, April 2013, 40, www.crisisgroup.org/~/media/Files/Middle East North Africa/North Africa/libya/140-trial-byerror-justice-in-post-qadhafi-libya.pdf. 

12. Anthony Dworkin, The Struggle for Pluralism after the North African Revolutions (London: European Council on 

Foreign Relations, 2014), 32.

13. Manal Omar and Susanne Tempelhof, “Stakeholders of Libya’s February 17 Revolution,” Special Report no. 300 

(Washington, DC: United States Institute of Peace, January 2012), www.usip.org/publications/stakeholders-oflibya-s-february-17-revolution.

14. Mieczyslaw Boduszynski, Duncan Pickard, “‘Tracking the ‘Arab Spring’: Libya Starts from Scratch,”  Journal of 

Democracy 24, no. 42 (2013). 

15. Sharqieh, “Reconstructing Libya,” 15.

16. ICG, “Trial by Error,” 40.

17. John Braithwaite and Tamim Rashed, “Restorative Justice Lessons from Libya,” Restorative Justice, February 21, 

2014, www.hartpub.co.uk/RestorativeJusticeLessonsfromLibya.pdf.

18. Barry Hart and Muhyadin Saed, “Integrating Principles and Practices of Customary Law, Conflict Transformation, 

and Restorative Justice in Somaliland,” African Peace and Conflict Journal 3, no. 2 (December 2010): 4.

19. Hart and Saed, “Integrating Principles,” 19.

20. This information comes from a discussion between the author and Ahmad’s brother in spring 2014.

21. Ahmed Elumami and Patrick Markey, “Libya Declares Oil Crisis Over After State Reclaims Port,” Reuters, July 2, 

2014, www.reuters.com/article/2014/07/02/us-libya-oil-idUSKBN0F72LZ20140702.

22. Lisa Anderson, The State and Social Transformation in Tunisia and Libya, 1820–1980 (Princeton, NJ: Princeton 

University Press, 2014), 139.

23. Fiona Mangan and Mark Shaw, “Illicit Trafficking and Libya’s Transition: Profits and Losses,” Peaceworks No. 96 

(Washington, DC: United States Institute of Peace, February 2014), 7.

24. Keli Muddell, “ICTJ Program Report: Gender Justice,” International Center for Transitional Justice, February 21, 

2013, www.ictj.org/news/ictj-program-report-gender-justice.

25. Caroline Nicholl, “Toolbox for Implementing Restorative Justice and Advancing Community Policing” (Washington: 

U.S. Department of Justice, 1999), www.cops.usdoj.gov/pdf/publications/e09990003_web.pdf.

26. Hart and Saed, “Integrating Principles,” 19.

27. Ibid.

28. Anderson, State and Social Transformation, 20. 

29. Hart and Saed, “Integrating Principles,” 7.

30. Ibid., 29.

31. Ibid.

32. Hart and Saed, “Integrating Principles,” 19. 

33. Zehr, Book of Restorative Justice, 25.

34. Interview with traditional leader (via Skype), November 11, 2014. 

35. Zehr, Book of Restorative Justice, 21.

36. Braithwaite and Rashed, Restorative Justice Lessons, 4.
ISBN: 978-1-60127-300-0

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(www.usip.org), together with additional 

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Of Related Interest

• Customary Justice and the Rule of Law in War-Torn Societies edited by Deborah Isser (USIP 

Press, 2011) 

• Perceptions of Security in Libya: Institutional and Revolutionary Actors by Naji Abou Khalil and 

Laurence Hargreaves (Peaceworks, May 2015)

• Security and Justice in Post-Revolution Libya by Fiona Mangan and Christina Murtaugh with 

support from Ferdaouis Bagga (Peaceworks, September 2014)

• Illicit Trafficking and Libya’s Transition: Profits and Losses by Mark Shaw and Fiona Mangan 

(Peaceworks, February 2014)