UPDATE: Libya’s Legal System and Legal Research

By John L. S. Simpkins

Updated by Mohamed Lafi & Mahmoud Salem Sawan

Mohamed Lafi holds an L.L.B. in Law from the Misurata University in Misrata, Libya. He worked at a law firm focusing on corporate and commercial law, including the firm’s oil and construction clients. Between November 2018 and April 2019, Mohamed Lafi worked as Head of Programs in the Tripoli office of Lawyers for Justice in Libya (LFJL). In this capacity, he acted as the focal point for the organization in-country and managed relations with civil society organizations and state authorities.

Mahmoud Salem Sawan holds an LL.M International Commercial Law from University of Reading and an L.L.B. in Law from the University of Tripoli. He is a member and a certified lawyer by the Libyan Bar Association. Mahmoud joined Lawyers for Justice in Libya (LFJL) in 2017 as Transitional Justice Programme Assistant, and managed the collaboration with Libyan civil society organizations and local stakeholders. He also coordinated the Network for Monitoring and Archiving for Justice and provided technical support on human rights documentation in Libya. Since 2019, he works as Programmes Officer at LFJL, providing legal and technical assistance to different programs. Alongside his work at LFJL, he is a founding member of the Libyan Organization of Debates (LOD), in which he participates as a debater and trainer in creating an enabling environment for constructive dialogue and tolerance in Libya.

Lawyers for Justice in Libya is a Libyan and international independent non-governmental organization, working to achieving justice and respect for human rights in Libya.

Published November/December 2019

(Previously updated by John L. S. Simpkins in November/December 2010)

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1. Introduction

Libya’s legal and political identity has been shaped by its location at the nexus of African, European, and Islamic culture. Its relationship to the various aspects of its tripartite character has been fluid. Different facets of Libya’s collective identity have emerged at different moments in the country’s history. This article provides an overview of the Libyan legal system and governmental structure. It begins with a brief discussion of the historical conditions giving rise to the current system of governance. Finally, this article will identify online sources of Libyan law, official governmental websites, and related information available on the Internet and in print.

2. Historical Overview

Libya was ruled by the Ottoman Empire until 1911, when Italian forces gained control of the area around Tripoli. With the end of World War II, Italian occupation yielded to administration by the United Nations in 1943. Libya became the first nation to gain independence through an UN-administered process when it became a sovereign state on December 24, 1951. The new Libyan state was ruled as a hereditary and constitutional monarchy by King Idris I. Libyan independence presaged the postcolonial period, as other African nations gained independence from European powers.

One of the world’s poorest countries at independence, Libya achieved international notoriety and significant new wealth with the discovery of substantial oil reserves in 1959.[1] Most of this newfound wealth fell into the hands of the country’s elites. This concentration of wealth led in part to a 1969 coup, which ended the reign of King Idris I and resulted in the establishment of the Libyan Arab Republic. Colonel Mu’ammar Abu Minyar al-Qadhafi, the leader of the coup, was installed as the head of the post-monarchical regime. Following the overthrow of the monarch, a provisional constitution was announced by the Revolutionary Command Council (RCC) in 1969, set to remain in force until a permanent version could be adapted. In 1977 this provisional document was replaced by a new constitution and Libya's official name changed from the Libyan Arab Republic to the Socialist Peoples' Libyan Arabic Jamahiriya. The new constitution incorporated a blend of Islamic and socialist theories espoused in al-Qadhafi's Green Book and his Third Universal Theory. The direct authority of the people constituted the political order, while the social system was governed by the Holy Quran. Political institutions were represented by peoples' congresses, committees, trade unions and vocational syndicates.[2]

Libya gained increased international prominence under Col. Qadhafi not only because of its oil wealth, but also because of its attempts to subvert the bipolar Cold War power arrangement. Qadhafi sought to undermine capitalist and Marxist expansion by aiding organizations—including terrorist groups—arrayed against both powers. Libya promoted Arab unity while at the same time seeking to identify with its fellow African states. Qadhafi’s political and economic influence permeated both the Arab and postcolonial African spheres, as evidenced by Libya’s military incursion into Northern Chad in 1973 and the country’s membership in the short-lived Federation of Arab Republics from 1972-1977. His early support of a Pan-African alliance played a role in the formation of the African Union.[3] Libya has been an active participant in other continental organizations, including the African Development Bank.[4]

Libyan involvement in the downing of Pan American Airlines Flight 103 over Lockerbie, Scotland, caused the United Nations to levy sanctions against the Qadhafi government. Prompted by the increased international isolation, Qadhafi undertook to repair Libya’s relationships with Europe. This effort culminated in the suspension of UN sanctions in 1999 and the lifting of those restrictions in 2003 upon the resolution of the Lockerbie matter.[5]

Libya further rehabilitated its international image in 2003 by renouncing its efforts to develop weapons of mass destruction.[6] As a result, the West resumed economic and diplomatic ties with the Qadhafi government. The United States lifted economic sanctions on Libya in 2004, reopened full diplomatic relations in May 2006, and later removed the country from its list of state sponsors of terrorism.[7]

In July 2008, the United States Congress passed the Libya Claims Resolution Act (LCRA), in which the Libyan government agreed to establish a $1.5 billion fund to compensate victims of the Lockerbie bombing.[8] In addition, victims of the US bombing of Tripoli in response to the Lockerbie disaster were designated as beneficiaries of a $300 million dollar compensation fund.[9] Once Libya satisfied its financial obligations to the fund in October 2008, it regained its sovereign immunity under US law and had all pending claims concerning Libya-related terrorist activities dismissed.[10] In November 2008, Gene Cretz was confirmed as the first US Ambassador to Libya in 36 years.[11]

Libya has resumed diplomatic relations with the West. Since 2008, the government has reformed into a more comprehensive one. Seif Qadhafi, one of Col. Qadhafi’s sons, emerged as one of the most highly visible advocates for further change. The younger Qadhafi pledged not to accept any position with the government “unless there is a new constitution, new laws, and transparent elections.”[12]

On the 17th of February 2011, following calls for legal, social and economic change, an uprising a number of Libyan cities quickly turned into an armed conflict between civilians and Qadhafi’s armed forces. The conflict lasted for 8 months and was ended by the declaration of the liberation of the country on the 23rd of October 2011, when the revolutionary forces led by the National Transitional Council (NTC) ending 42 years of Qadhafi’s rule. The NTC until the election following the revolution. This election yielded Libya’s first elected parliament, the General National Congress (GNC). These events were a main factor behind the changes in the social, economic and legal system in Libya following 2011.

3. Political Division and the Libyan Political Agreement

The GNC (which was dominated by the so-called Islamist parties) failed to abide by its electoral mandate which expired on February 2014, and on December 2013 issued a constitutional amendment extending its mandate until the 24th of December 2018. Following popular criticism and calls for a new elected body due to the failures of the GNC, another constitutional amendment was issued on March 2014 extending its’ mandate until the 24th of December 2014. On 12th of February, the GNC issued a resolution forming what is called the “February Committee.” This committee was given two duties: first, issuing a draft of a constitutional amendment paving the way for electing a new legislative authority called the House of Representatives (HOR) and a Head of State through direct or indirect election; and second, proposing a law based on which the HOR will be elected. On the 11th of March, the GNC issued the 7th constitutional amendment approving and adopting the proposals of the February Committee except for the section related to electing the Head of State; in this regard the amendment stated that “the HOR shall decide on whether the Head of State should be elected directly or indirectly within 45 days of its first session.” Following this amendment and under continuous calls for a new elected body, the GNC held the 25th of June 2014 as a date for holding HOR elections. Before that, in May 2014, General Khalifa Haftar announced what he called the Dignity Operation and started a war against several Islamist militias based in Benghazi in the east of the country.

In the 2014 HOR election, the s0-called Islamist parties failed to obtain majority in HOR seats, which resulted in them rejecting the election results. Following that, a group of forces said to be backed by Islamist parties started a war in Tripoli against other rival forces to take control of the airport and other government utilities. These forces managed to take control of the whole capital on the 23rd of August 2014, and the GNC reinstated itself as the legislative authority of the country. On the other hand, the elected HOR, which was supposed to operate from Benghazi, based itself in the city of Tobruq, 450 km east of Benghazi due to the ongoing fights in Benghazi by the forces of General Khalifa Haftar against Islamist forces in the city. The HOR exercised legislative authorities based on the election and the 7th constitutional amendment issued by GNC.

On the 22th of September 2014, members of the GNC filed a constitutional appeal against the 7th amendment of the interim constitutional declaration. The appeal was based on the lack of a quorum in the number of votes by which the 7th amendment was approved. On these bases, the Constitutional Chamber of the Libyan Supreme Courts, on the 6th of November 2014, issued its decision accepting the constitutional appeal and repealing the 7th amendment, which approved the proposals of the February Committee to elect the HOR. Despite the issuance of that decision, the HOR continued to exist and carry out its operations. The members of the HOR and other political parties argued that the Supreme Court decision was issued under duress and political influence, as Tripoli (where the decision was issued) was at that time controlled by forces backing the GNC. They also argued that the interpretation of the Supreme Court decision would not lead to the illegitimacy of the 2014 HOR election, as the said decision did not terminate the Election Law issued by the GNC, which therefore remained effective. However, the legal statues and legitimacy of both bodies remained disputed and unsettled.

Following the issuance of this decision, both bodies and their executive branches remained in power and exercised legislative and executive functions over the different parts of the country which they controlled. The GNC controlled the majority of the western side of the country and continued to try to control more areas, and the HOR controlled most of the eastern side of the country with General Khalifa Haftar still carrying out operations to control Benghazi and Derna, where the presence of Islamist militias was still prominent.

In an attempt to manage the situation, the United Nations Support Mission in Libya (UNSMIL) launched a political dialogue between the different political actors from both sides. On 17 December 2015, the representatives of both HOR and GNC signed what was called the Libyan Political Agreement (LPA). This agreement aimed to end the conflict by allowing the HOR to remain in power, dissolving the GNC and forming a new council called the State Council (SC). The HOR and the SC were granted some joint legislative authorities and joint authorities related to the appointment of individuals for sovereign government positions. Regular legislative authorities were granted to the HOR. Under this agreement, the solution to the conflict around the executive authority and its duality was by forming a joint government under the name Government of National Accord (GNA). However, the LPA was rejected by the leaders of both the HOR and GNC. Thus, the HOR refused to approve the LPA.

Despite of the refusal of the GNA from both parties, the GNA managed to start operations in Tripoli backed by a group of armed forces. The GNC and its executive branch was also dissolved and replaced by the SC, which started operating from Tripoli as well. On the other hand, the HOR kept rejecting the LPA and, thus, its executive government continued to operate in the eastern territory of the country. In March 2015, the HOR elected General Khalifa Haftar as General Commander of the Libyan National Army, which in turn meant the recognition of the Dignity Operation. In July 2017, General Khalifa Haftar announced what he called the “liberation” of Benghazi from the rival Islamist militias. In June 2018, the LNA announced its control of Derna city after eliminating the Islamist armed groups that were controlling the city. The LNA led by General Haftar went further by declaring the control of most of the southern territory of the country in the period between January and March 2019.

Until April 2019, there were many attempts led by UNSMIL to bring the rival Libyan parties together. However, all these efforts had failed, with the LNA launching a new campaign to control Tripoli.

4. The Libyan Legal System

Libya’s legal and governmental structure is based on the Interim Constitutional Declaration announced by the NTC on August 2011. This declaration replaced several documents of a constitutional nature that were effective during Qadhafi’s rule which embodied his ideas. In 2014, a committee was elected. Although the commission faced many challenges, it eventually managed to approve a final draft of the constitution and delivered it to the HOR for approval and issue a new law to facilitate its referendum. However, the draft was faced with many criticisms which prevented its approval by the HOR.

According to the civil code, the hierarchy of legal sources is, in descending order, the Constitution, legislation, principles of Islamic law, customs, and principles of natural law and equity.[13] Executive functions are carried out by the Chief of State, the Head of Government and the Cabinet. The Legislative Branch consists of the HOR and CS. The Judiciary Branch is composed of four levels of courts, culminating in the Supreme Court.

4.1. Executive Power

According to the LPA, the executive authority in Libya is exercised by the GNA. This government is headed by a Presidential Council, which is comprised of the Head of the Presidential Council (Mr. Fayez Alsaraj) and 9 other members. In December 2015, the UN Security Council issued a resolution 2259 shortly after signature of the LPA giving legitimacy to the GNA as a government on an international level.[14] However, the legitimacy of this government on a local level is still in question due to the absence of a constitutional amendment which recognizes this form of government by the HOR. Therefore, there still a rival government operating in the east of the country and backed by the HOR.

4.2. The Legislative Power

As a result of the conflict and the political dialogue and the LPA, two bodies with different and mutual legislative authorities exist in the country. The HOR and the State Council both have joint legislative authority. However, according to the LPA, the HOR has a stronger legislative power than the CS, whose authorities are limited to an advisory role in most cases. According to the LPA, the GNA shall consult the CS with regard to the bills the GNA intends to present to the HOR. However, the HOR is not obliged by these bills. The CS has also advisory powers on the GNA in regard to entering or signing new International Conventions.

4.3. The Judicial Power

Reflecting its diverse heritage, the Libyan legal system is influenced by Islamic law as well as the civil legal regimes in Italy and France.[15] Under Ottoman rule, one court system addressed secular matters while another was responsible for deciding disputes involving religious law.[16] The secular courts were organized according to the Napoleonic Code. Islamic judges applied Shari’a law in the religious courts.[17] Libya has not accepted the jurisdiction of the International Court of Justice.[18]

In 1973, the dual court systems merged into one, with Shari’a law gaining ascendance as the primary legal authority in Libya.[19] The Judicial System is headed by the Supreme Judicial Council, whose members are a judge from the Supreme Court, the head of the Judicial Inspection Authority, a judge from each Court of Appeal in Libya, and the Attorney General. It shall also include a member from each of these judicial Authorities: The State Litigation Department, the State Law Management Department and the Peoples Defence Department. The Supreme Judicial council exercises a supervisory and organisational authority over courts and other judicial authorities in Libya. It also exercises other authorities like establishing and structuring courts, granting complete or partial judicial powers.

The Judicial Courts System is comprised of four tiers of courts, in descending order as follows:

The Supreme Court operates as a court of final appeal on legal matters and is organized by an independent Law No.6/1982, subsequently amended by Law No.17 1994, Law No.8/2004 and Law No.33/2012. According to Law No.6/1982, the head of the Supreme Court is appointed by the legislative authority. According Article 15 of LPA, the HOR shall consult with the State Council in appointing the Head of the Supreme Court. The court is composed of five chambers: civil and commercial, criminal, administrative, constitutional and Sharia’a. Cases are seen by a panel of three to five judges.

The Court of Appeals operates as a court of second degree and hears appeals against decisions issued by the Court of First Instance.

The Primary Court, or the Court of First Instance is a court of first degree and has a general jurisdiction over disputes except for those which are attributed to the summary court by special provisions. This court also operates as a court of appeal for cases issued by the Summary Court.

The Summary Court sits at the bottom of the Judicial System and is presently located in most small cities and towns.

5. Legislation (Codes, Cases, Treatises)

Civil Code: While the Civil Code is contained in Gazette dated 13 Feb 1954, many of its provisions have been abandoned in favor of Shari’a law, as demonstrated by the amendments contained in Law No. (74) of 1972 and Law No. (86) of 1972. A translation of the 1954 code was published as The Libyan Civil Code. In 2013, the GNC made a pivotal amendment on the Libyan legal and financial system by issuing Law No.1 of 2013 on the prohibition of interest-based financing transactions.

Code of Civil Procedure: The Code of Civil and Commercial Procedure was promulgated on 28 Nov 1953.[20]

Commercial Activities Code: Originally, commercial activities in the country were organized by the Code of 1953, which was amended to conform to the principles of Islamic law by Laws No. (74) and (86) of 1972.[21] On 2 March 2010, the General People’s Congress promulgated seven new laws intended to liberalize Libya’s economic system. The first and most significant of these reforms was the passage of a new Commercial Law to eliminate inconsistencies between the original Commercial Code of 1953 and subsequent amendments.[22] Additional measures addressed taxation, customs, foreign investment, the securities market, and private sector employment.[23] The new Commercial Code was published as Law No. 23/2010.

Criminal Code: the main source of criminal law in Libya is the penal code of 1953.[24] There are other essential criminal laws such as Economic Crimes Law No.2 Of 1979. Additionally, as a result of adopting the Holy Quran as a main source of legislation in 1977, several subsequent laws were issued, such as Law No.6 of 1423 on adopting Death Penalty for Murder crimes, and Law No.13 of 1425 on adopting Physical Penalties for Theft and Robbery Crimes.

Intellectual Property Laws: Intellectual Property rights in Libya are mainly governed by two main old laws: (1) Law No. (9) for 1968, Issuing the Copyright Protection Law[25] and (2) Law No. 8 of 1959 on Patents and Industrial Designs and Models. Additionally, Intellectual Property Rights are also governed by articles in other several laws such as Articles 1228 to 1281 of the Commercial Law No.23 of 2010 which refer to trademarks and commercial indications. Also, Law No. 9 of 2010 on Investment Promotion.[26]

6. Case Law

7. Treaties

Libya is a signatory to a number of UN Conventions and Covenants regarding financial transparency, human rights, and the proliferation of biological, chemical, and nuclear weapons.

Libya acceded to the ICCPR and ICESCR in 1970 with a general declaration to the effect that its accession shall in no way signify recognition of Israel or entry into dealings with Israel under the terms of the Covenants.[29]

Libya acceded to the CEDAW in 1989 with reservations relating to the following: Article 2 being implemented "with due regard for the peremptory norms of the Islamic Shari’a relating to determination of the inheritance portions of the estate of a deceased person"; and to Articles 16(c) and (d) being implemented "without prejudice to any of the rights guaranteed to women by the Islamic Shari’a."[30]

Libya acceded to the CRC in 1993 without reservations.[31]

8. Participation in International Organizations

Libya is a member of the following international organizations: ABEDA, AfDB, AFESD, AMF, AMU, AU, CAEU, COMESA, FAO, G-77, IAEA, IBRD, ICAO, ICRM, IDA, IDB, IFAD, IFC, IFRCS, ILO, IMF, IMO, IMSO, Interpol, IOC, IOM, IPU, ISO, ITSO, ITU, LAS, MIGA, NAM, OAPEC, OIC, OPCW, OPEC, PCA, UN, UNCTAD, UNESCO, UNIDO, UNWTO, UPU, WCL, WCO, WFTU, WHO, WIPO, WMO, WTO (observer).[32]

9. Law Faculties

10. Official Governmental Websites [33]

Additional Government Websites

11. Online Legal Resources

12. Other Websites

13. Background Texts

[1]U.S. Relations With Libya. ”U.S. Department of State, accessed 10/13/19.

[2] Available at “Libya Oil Almanac - OpenOil,” last accessed October 13, 2019.

[3]Libya Country Profile,” BBC News (April 9, 2019).

[4]Libya.” African Development Bank (September 5, 2019).

[5]The World Factbook: Libya.” Central Intelligence Agency, February 1, 2018.

[6]U.S. Relations With Libya. ”U.S. Department of State, accessed 10/13/19.

[7]The World Factbook: Libya.” Central Intelligence Agency, February 1, 2018.

[8]Libya compensates victims of terrorism.” The National, November 1, 2008.

[9]Libya compensates victims of terrorism.” The National, November 1, 2008.

[10] Ghattas, Kim. “Shrewd Gaddafi Plays Host to Rice.” BBC News, September 5, 2008.

[11]Connect with America.” ShareAmerica, October 9, 2019.

[12] Thomas Jr., Landon. “Unknotting Father's Reins in Hope of 'Reinventing' Libya.” The New York Times. The New York Times, February 28, 2010.

[13]Foreign Law Guide,” Accessed October 13, 2019.

[14] “Resolution 2259,” Accessed October 14, 2019.

[15]The World Factbook: Libya.” Central Intelligence Agency, February 1, 2018.

[16] Law Library of Congress, Guide to Law Online – Libya (Last Updated February 14, 2019).

[17]The World Factbook: Libya.” Central Intelligence Agency, February 1, 2018.

[18]The World Factbook: Libya.” Central Intelligence Agency, February 1, 2018.

[19]The World Factbook: Libya.” Central Intelligence Agency, February 1, 2018.

[20]Foreign Law Guide,” Accessed October 13, 2019.

[21]Foreign Law Guide,” Accessed October 13, 2019.

[22] THE LEGISLATION ON INVESTMENT IN LIBYA, https://www.icricinternational.org/wp-content/uploads/countries/libya/investment%20laws.pdf, Accessed on 4 December 2019.

[23] THE LEGISLATION ON INVESTMENT IN LIBYA, https://www.icricinternational.org/wp-content/uploads/countries/libya/investment%20laws.pdf, accessed on 4 December 2019.

[24]Foreign Law Guide,” Accessed October 13, 2019.

[25]Foreign Law Guide,” Accessed October 13, 2019.

[26] WIPOLex, Accessed October 14, 2019.

[27] The Official Journal Website, http://www.log.gov.ly/home/search.php, last accessed 6 December, 2019.

[28] The Supreme Court Journal, https://supremecourt.gov.ly/magazine/, last accessed 6 December 2019.

[29] See https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=99&Lang=AR, last accessed 6 December 2019.

[30] See https://www.hrw.org/legacy/arabic/reports/2006/libya0206/3.htm, last accessed on 6 December 2019.

[31] Ibid.

[32] See the Official Journal, N. 28.

[33]Libya.” WorldLII, Accessed October 14, 2019.