1- Customary law is not a written source.

A rule of customary law is said to have two

elements. First, there must be widespread and consistent State practice. Secondly,
there has to be what is called “opinio juris”, usually translated as “a belief in legal
obligation; i.e. States must accord immunity because they believe they have a legal
duty to do so. As the International Court of Justice has put it:- ‘Not only must the acts
concerned be a settled practice, but they must also be such, or be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule requiring it. The States concerned must feel that they are
conforming to what amounts to a legal obligation.’ (North Sea Continental Shelf
cases, ICJ Reps, 1969, p. 3 at 44) A new rule of customary international law cannot be
created unless both of these elements are present. Practice alone is not enough nor can
a rule be created by opinio juris without actual practice

Infrastructure for customary law in Libya

During the period of the ottoman empire, a dual judicial system that distinguished
between religious and secular matters developed in Libya and other countries where
ottoman empire ruled. The courts were organized in into both original jurisdiction and
appellate levels and each were directed by qadi (an Islamic religious judge). Secular
matter that involved civil, criminal and commercial law were tried in a separate court
system. Laws covering secular matters reflected western influence in general and the
Napoleonic code in particular. After the disintegration of ottoman empire, the colonial
powers that ruled Libya maintained the dual judicial structure, however after the
independence of Libya an attempt was made to merge the religious and secular legal
systems. Judicial independence and the due process of law were respected during the
first decade of the post-revolutionary regime. Qadhafi and other RCC members
believed that the separation of state and religion and thus of secular and religious law
violated the Quran and relegated sharia to a secondary status. The ultimate aim was
for Islam to permeate the entire legal system not only in personal matters but in civil,
criminal and commercial law. In 1973, the dual court systems merged into one, with
Sharia law gaining ascendance as the primary legal authority in Libya also. ”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.”i
 This ^ was the governmental organization in June, 1987 ii end karne ke liye kuch
sochna

Jurisdiction of customary law in Libya

Libya is a tribal society where tribal leaders have been major actors throughout the
history of the country. From the Italian colonization of 1911-1945 to the Arab spring
in 2011, tribal leaders have played a crucial role in keeping the unity between Libyans
and maintaining a relative peace in most of the country. Libya has not accepted the
jurisdiction of the International Court of Justice However, tribes have reinvented their
role since the revolution where they are not only solving individual crimes but facing
the reality of a civil war within the country. This new role of the tribes has evolved
the customary law called ‘Orf in Arabic, which is the common law that is used by
tribal leaders to resolve local and national disputes into an established law system.
With the three contesting governments failing to provide security and the pockets of
violence in the country, ‘Orf, is the only effective law that the vast majority of
Libyans respect. Hukama (Wise Men), usually tribal sheikhs have become the most
active peacemakers in Libya. While politicians are considered too busy fighting over
power, Hukama are engaged in the process of peacebuilding to conflict prevention by
using ‘Orf. Before the Libyan revolution which toppled Libya dictator Muammar
gaddafi in 2011, ‘Orf was one of the sources used in Libyan criminal cases. The state
relied on Sheikhs to solve small-scale crimes. A Libyan judge can free the perpetrator,
in a killing crime, if the two tribes, the victim and perpetrator families, resolve the
conflict using ‘Orf. According to the report of USIP 979 Libyans were interviewed
and over 60 percent of respondents agreed that tribes were able to “provide security”
to the community. iii “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”. ivThis shows that the vast majority of Libyan
population adheres to customary law.
i
UPDATE: Libya's Legal System and Legal Research. (n.d.). Retrieved April 27, 2020, from
https://www.nyulawglobal.org/globalex/Libya1.html#_edn18
ii
Libya: a country study. (n.d.). Retrieved April 27, 2020, from
https://www.loc.gov/resource/frdcstdy.libyacountrystud00metz_0/?sp=227
iii
Tribe, Security, Justice and Peace in Libya Today. (2018, April 23). Retrieved from
https://www.usip.org/publications/2016/09/tribe-security-justice-and-peace-libya-today
iv
Customary Practice and Restorative Justice in Libya: A Hybrid Approach. (2016, December 30). Retrieved April 27,
2020, from https://www.usip.org/publications/2015/05/customary-practice-and-restorative-justice-libya-hybrid-
approach