With the imminent formation of a new government in Libya, there is great concern about  whether and how Muammar Gaddafi, his son Saif-al Islam and the head of military intelligence will face justice – all three having been made subject to arrest warrants by the International Criminal Court in June accused of murder and persecution.

There will be important questions too about how transitional justice will be pursued more broadly under a new regime. Will the country adopt a Truth and Reconciliation approach or look to bring more junior Gaddafi officials to justice through the courts? More widely still what kind of criminal justice and prison system might we expect to develop in a new Libya over the coming months and years?

We can get some indications from the record of the current head of the National Transitional Council (NTC) Mustapha Abdel Jalil who was  Minister of Justice for four years under Gaddafi until he quit in February this year in protest at the violent response to protests.    His loyalty to the regime had already been sorely tested; he tried to resign from the post in early 2010 at the Leader’s decision not to release detainees years after they had completed their prison sentences or been acquitted but was not permitted to step down. He worked hard to try to secure the closure of the notorious Abu Salim security prison, and undertake a proper investigation into the massacre that took place there in 1996- a cause in which he was joined by the Foundation run by Saif Gaddafi .

As a former senior judge, Jalil is committed to the rule of law but found his desire to see the implementation of  court orders frequently thwarted by his Leader and the Internal Security Agency.  He was able to oversee a programme of reform in the prisons run by his own department with help among others from the International Centre for Prison Studies based in London. Proposals to revise the Penal Code were well advanced by the time of the Arab Spring.

We should not however get carried away by an expectation that the new regime will necessarily usher in a criminal justice system fully compliant with international standards. The revisions to the Penal Code did aim to reduce pre trial detention,  limit the death penalty and introduce alternatives to short prison sentences. But alongside the proposed introduction of community service, the new Code’s principal penalties still included severance – the cutting off of limbs and whipping. Both  are widely considered to be violations of the right not to be tortured enshrined in the Universal Declaration of Human Rights; the Human Rights Council has found that flogging and amputation to be serious violations of the International Covenant on Civil and Political Rights. Accessory penalties were also envisaged which deprive offenders of various civil rights.

As for prisons, despite a building programme, conditions particularly in the dormitories were grossly overcrowded before the civil war. Some steps had been taken to reduce sentence lengths; for Libyan prisoners measures had been introduced to allow those whose death sentences for murder had been commuted to be released after 16 years (if there had been reconciliation with the victims’ family), and 25 years if not. Life sentenced prisoners could be released after 20 years. Drug offenders could be released after shorter periods. Prisoners over 70 and those who could recite the whole Koran could also be released.

As in many parts of the region, overcrowding is also regulated by periodic amnesties. There was a large release programme on the 40th anniversary of the revolution in 2009 and there is one annually after Ramadan.   New eligibility criteria were introduced allowing people to have an amnesty on more than one occasion, and those serving long sentences to be included if they have served ten years or half of their sentence.  Prisoners also have rights under the law to return home for up to 8 days a year after the first year if their behaviour has been good, particularly if they have not made escape attempts.  A deportation programme was also introduced for the large contingent of foreign national prisoners.

Despite the efforts to reduce congestion, prisons were often tense with hunger strikes and protests not uncommon, on occasion led by those prisoners whose amnesty applications had for whatever reason had been turned down. It is hard to imagine that the civil war has made them any more settled.

Experience of post-conflict reconstruction shows the importance of introducing, restoring or maintaining a functioning and rights compliant justice system in quick time. In countries where that system is closely associated with a fallen regime, that is especially hard to do in a way that does not risk on the one hand creating a security vacuum or on the other repeating the human rights violations of the past.

In Libya, there is the possibility of building on the positive steps taken before the uprising in the Justice run prisons at least. We can expect the new government to close Abu Salim, from where the NTC claim to have freed all prisoners in the last few days and disband the internal security agency. Let us hope that these are but the first steps to accelerating the programme of reform that will bring Libya more fully into the international fold.