Libya: the Deadlock in Reaching a Political Agreement and the Problems Posed by the Democratic Transition
Moncef Djaziri 9 September 2017

Below the essay of Moncef Djaziri, University of Lausanne, that is part of our monography State-Building in Libya. Integrating Diversities, Traditions and Citizenship.

Introduction

This paper addresses the political crisis in Libya and the 2015 Libyan Political Agreement also known as the Skhirat agreement (Morocco). The objective is to show that this crisis is a profound one and caused by circumstances Libya has experienced since the beginning of this transition in 2011. The paper will also show that the Political Agreement addressed, in principle utopic and generous, will not result in the resolution of the crisis, nor can it guarantee conditions for the transition’s success. On the contrary, it simply exacerbates matters and makes it unpredictable and uncertain.

The principle of establishing a dialogue between the parties in conflict is not in question. Effectively, it is crucial that Libyans should negotiate with one another. Nevertheless, the 2015 Political Agreement, the result of lengthy and gruelling discussions, cannot lead to a resolution of this crisis. Mahmoud Jibril, one of the historical leaders of the 2011 uprising and first president of the National Transition Council, recently said that he has never considered the Libyan Political Agreement as the solution to this crisis. In his opinion, “dialogue in its current form has lost its usefulness and must be rekindled with players having real importance in society.” Effectively, the Agreement discussed here was signed by Libyans with very little political influence, which is also one of the reasons for its fragility. Even more serious is the fact that the planned institutional mechanisms, which should also guarantee better transition conditions, are incoherent, ineffective and contain multiple contradictions that make efficient governance impossible during the transition period. It is therefore urgent to bring together the political players who matter in the country and amend the 2015 Agreement so that it becomes a useful tool, allowing a resolution of the crisis and ensuring the best possible conditions for a democratic transition. Should this crisis persist, the international community will have to review the entirety of the political process in a country experiencing serious instability.

  1. The particularities of the Libyan transition

Transition through war

Indisputably, the events that took place between February and October 2011 profoundly affected Libyan society. Whatever one’s opinion may be regards to the nature, causes and reasons for these events, they traumatised Libya and revealed the existence of centrifugal forces that have accelerated the country’s disorganisation making the establishment of stability and the democratic transition less easy.

The overthrowing of Gheddafi’s regime by force in March 2011 plunged the country into anarchy and transformed it into a hub for trafficking human beings with Europe as their destination. The war conducted by certain Western countries and NATO and in which France and Great Britain played the greatest roles, destroyed the embryonic Libyan state, thereby creating the conditions for Islamic State-Daesh to establish itself. Air raids had decimated the Libyan armed forces, creating a void quickly filled by armed militias of different persuasions, especially in Tripoli and in the west of the country.

The Libyan transition sparked in 2011 is therefore a very particular case when compared to transition models analysed in literature.[1] It is the result of a war for democracy with multiple economic issues at stake,[2] conducted by NATO countries[3] that imposed the transition. It is a characteristic that determines the process. Decisions made since 2011 and the efforts made, in particular by the United Nations, have not achieved the hoped-for results. The 2015 Political Agreement has not allowed the creation of conditions for resolving the crisis, and that is why we believe it is necessary to proceed with a critical assessment of this agreement and of the ensemble of the process of the UN’s involvement in Libya.[4]

The transition formally began with the declaration of the “Liberation of Libya” on October 23rd, 2011, three days after Gheddafi’s cruel death. Until the election of the National General Council on July 7th, 2012, the political process was established by the Constitutional Declaration of December 2011. However, serious problems arose when it came to appointing a prime minister. After multiple conflicts and obstructions, Ali Zeiden obtained a very weak majority and was appointed prime minister on November 14th, 2012. In compliance with the Constitutional Declaration, two months after the elections, the National General Council should have appointed a commission to draft the new constitution, but under pressure from the federalist movement, the National Transitional Council amended the Constitutional Declaration so that the commission appointed to draft the constitution, consisting of 60 members (20 for each historical region) would be elected directly by the people. This decision caused debates and conflict within the National General Council.

The first parliamentary elections in 2012

One of the factors that made the first transition almost impossible was the manner in which the first national assembly was elected and in particular the voting method chosen – a one round nominal ballot – when lists were instead needed in order to allow the emergence of political forces in a coherent manner. An analysis of the composition of the National General Congress shows a fragmentation of political representation (independents are strongly represented as well as Islamists and republicans) as well as a strong individualisation of the vote contributing to encourage free-rider behaviour, which has caused parliamentary instability. One example of this instability is the fact that Mustapha Abou Chagour, elected prime minister by the National General Congress on September 12th, 2012, was obliged to resign a few weeks later, on October 7th, 2012, in compliance with the National General Congress’s own rules, after having his proposal for the composition of a government rejected twice.

On August 8th, 2012, following the first parliamentary elections on July 7th, 2012, the National Transitional Council handed power over to the newly elected assembly, the National General Congress. This marked the beginning of the first transition after over forty years of dictatorship. A large majority of congress members, 120/200, were “independents” and 80 of them belonged to political parties with a weak political base.

Very quickly, serious political problems arose threatening to paralyse the work of this first assembly; in particular, opposition between Islamists and liberal republicans. There was also the re-emergence of the historical conflict between the east and the west, between Benghazi and Tripoli. Another divergence concerned the definition of the political system to be adopted. The Islamists wanted a parliamentary system while the republicans defended the idea of a presidential system. This opposition has been one of the factors of this chronic crisis. To that one must add the resurgence of conflict concerning the state’s organisation. In Tripoli people are in favour of a united and centralised state while those in Cyrenaica defend the principle of a federal state.

The controversial 2014 elections of the House of Representatives

On June 25th, 2014, when the National General Congress’ mandate expired, new parliamentary elections were held to elect a House of Representatives. Following these elections, in which turnout was very low at 18%, clashes broke out in Benghazi and in Tripoli forcing the House of Representatives to set up in Tobruk instead of Tripoli. Certain members of the National General Congress opposed the legitimacy of this newly elected House, reinstating the National General Congress in Tripoli as a rival authority. Since 2014, Libya has found itself with two parliaments, two prime ministers and two governments.

The June 2014 general election that was supposed to bring stability to Libya did not effectively solve any problems. Even worse, these elections aggravated the crisis. The minority Islamists in parliament immediately questioned the legitimacy of newly-elected Prime Minister Abdallah Thini. Following multiple clashes with the republicans opposing the Islamists, as well terrorist threats posed by the armed militias of Fajr Libya (Libya Dawn) and despite the opposition of certain members of the National General Congress, the new prime minister and the elected parliament decided to establish themselves in Tobruk (in eastern Libya). This marked the beginning of the situation involving the two seats of power that the country is currently experiencing; a government and a parliament in Tobruk that is legitimate and recognised by the international community and the United Nations as of August 5th, 2014, and an second government and parliament in Tripoli, not recognised but protected and also challenged by the armed militias. It is under such conditions that the United Nations has become involved in mediation aimed at resolving the Libyan crisis.

  1. The role played by the UN in the Libyan transition

One must firstly bear in mind that since March 2011, the UNmission in Libya has on various occasions changed its objective as the situation in the country has evolved. Following the outbreak of the March 2011 uprisings, the UN’s objective, as described by Secretary General Ban Ki-Moon, was the reinstatement of the rule of law, the strengthening of national institutions, the protection of human rights and restoring the economy. Very soon the mission’s objectives evolved due to the deterioration of the security situation, the country’s breakdown and the emergence of armed militias.

The UN’s mission was once again redefined when on October 12th Tarek Mitri replaced Ian Martin as Special Rep-
resentative. It was no longer a case of supporting the political process and supervising technical aid provided to the justice system and the police. At the time there was talk of historic change that the new Special Representative wanted to support without meddling excessively in Libyan affairs so as not to annoy the National Transitional Council. Security problems, the armed threat posed by insurgents and the rising role of the Islamists led the United Nations mission to redefine its role and appoint a new representative to replace Tarik Mitri.

The arrival of a new UN Special Representative, Bernardino Léon, was accompanied by a redefinition of the Spanish diplomat’s role in a context that marked the beginning of a civil war between various armed militias and those in power. The establishment of a ceasefire became a condition for relaunching the political process. Following a number of visits to Libya, the UN’s Special Representative decided at the beginning of September 2014 to embark on an attempt to establish an inter-Libyan dialogue on the basis of a minimal agenda, summarised as respect for the institutions elected, human rights and a rejection of terrorism. The order of business for this dialogue was initially aimed at establishing the conditions for an official transfer of power between the National General Council and the House of Representative, as well as the elected and recognised parliament’s return to Tripoli. This meant establishing a dialogue and trust between the belligerent parties to resolve the country’s critical problems. One must admit that this attempt was a failure as the lack of security did not allow parliament to leave Tobruk and return to Tripoli.

Since the beginning of his mission on August 31st, 2014, the UN’s Special Representative Bernardino Léon considered dialogue as the only way of salvation for Libya, a perspective shared by most Western countries as well as Algeria, which defended the position according to which a political process remains the only way of resolving the Libyan crisis and this through a dialogue excluding no one. Léon was committed to ensure that the parties in conflict would speak to one another in order to achieve a ceasefire between the armed militias. In his report to the United Nations Security Council on September 15th, 2014, Léon said, “Three years following the fall of the former regime, the Libyan people find  themselves  nowhere closer to realizing their hopes and aspirations for a better future and for a State that safeguards their safety and security. Accordingly, many Libyans are deeply disillusioned with their country’s democratic transition.” Reassuring that the UN would remain loyal to its mission in Libya and continue to explain to all Libyans the need to quickly overcome their differences through dialogue, the UN Special Representative added, “I believe that is the only way to spare the country further chaos and violence, and to prevent it becoming a magnet for extremist and terrorist groups.”

On September 30th, 2014, the UN’s Special Representative gathered in Ghadamès (south-west of Tripoli) the rival factions, basically the Tripoli-based Islamists of Fajr Libya and the republicans from the House of Representatives in Tobruk, with the objective of making them talk to one another. On this occasion, Bernardino Léon paid tribute to the importance of this first dialogue attempted in order to try and put an end to institutional anarchy in the country. He believed at the time that there was no military solution to this crisis and that only dialogue would allow then to achieve a favourable solution to the chaos engulfing the country. However, in spite of his optimism, this first meeting was yet another failure due to the Islamists’ refusal to recognise the internationally recognised House of Representatives.

It is undisputable that Bernardino Léon, who played a key role in drafting the 2015 Agreement, made significant efforts and showed great diplomacy and patience in trying to ensure a dialogue was established between the parties in conflict and reduce differences, with the objective of reaching a peaceful outcome. In spite of all his efforts, the Spanish diplomat only very partially managed to succeed in this very difficult mission. From the very beginning, Léon worked as if the two powers in Tripoli and in Tobruk were equally legitimate and could therefore demand to share power in a new government. There was, therefore, an incorrect understanding of the state of power relations in the country. It was perhaps a mistake to consider the Fajr Libya Islamists as having an equal interest in reconciliation as the republicans in government in Tobruk.

The United Nations’ current Special Representative, Martin Kobler, followed the same path as his predecessor, while becoming even more involved in the political process. This is currently causing him legitimacy problems in the eyes of an increasingly important part of elites in the east of the country as well as in Tripoli. Quite a few members of the House of Representative have asked for him to be replaced by a more neutral and determined representative.

  1. The SkhiratPolitical Agreement: an unsuitable tool for managing the crisis and a successful transition

The United Nations and the Political Agreement

On January 14th, 2015, representatives of various sectors of Libyan society, members of parliament, of municipalities and associations, gathered in Geneva for two days of new talks. On this occasion, they launched an appeal asking for an end to all violence. According to statements by the United Nations Support Mission in Libya, released on January 16th, 2015, the participants expressed “their unequivocal commitment to a united and democratic Libya governed by the rule of law and respect for human rights. The participants agreed, after extensive deliberation, on an agenda that includes reaching a political agreement to form a consensual government of national accord and the necessary security arrangements to end the fighting and secure the phased withdrawal of armed groups from all Libyan cities to allow the State to assert its authority over the country’s vital facilities.” But was once again it failed due to the Islamists and Tripoli-based militias refusal to take part in this round of negotiations.

In February 2015, a new round of talks was held. Following unsuccessful mediation in Algiers, a new round of talks was hosted in Skhirat, Morocco. The Libyans intended to pursue negotiations already started under the aegis of the United Nations Support Mission in Ghadamès and in Geneva. After numerous negotiations and talks, the two parties in conflict accepted this new negotiation attempt. The objective was clearly stated. It consisted in reaching a political agreement on a national unity government. The Political Agreement was above all an outcome wanted by the United Nations and the European Union. According to the High Representative of the European Union for Foreign Affairs and Security Policy, Federica Mogherini, this crisis in Libya could have dramatic consequences for the whole of Europe. In her opinion, Libyan political dialogue, facilitated by the UN, had to achieve the objective of stopping the free fall of the country supported and put an end to the institutional void creating a fertile breeding ground for terrorist groups such as Daesh. After three draft projects had been rejected by one or the other party, the United Nations Special Representative seemed to have reached a consensus on a fourth version that all parties involved seemed to agree on. On July 11th, 2015, the parties involved agreed on a fifth version and in Skhirat, Morocco, signed the Peace and Reconciliation Agreement at the end of many months of negotiations held under the aegis of the United Nations. Complex in its form and with a sophisticated concept and structure, the final agreement envisages that the House of Representatives should remain in Tobruk, the creation of a High Council of State, the formation of a Government of National Accord and the organisation of elections within one year. It was aimed at putting an end to the dual power situation (one in Tripoli and the other in Tobruk) that has lasted since June 2014. In truth, not only did this Agreement not resolve any issues, it instead aggravated and exacerbated conflict. The idea of this Agreement and the institutional organisations it was to set in place make it difficult to apply.

4. The Political Agreement and the Problems in Implementing it

Representativeness of Members of the Dialogue is Questioned

One of the problems in the overall process of this dialogue was the fact that the signatories of the agreement on the Libyan side, those later supposed to implement the process and follow it to completion, were not always the same people and their signatures had no practical repercussions to the extent that they only represented themselves. The introduction of the Political Agreement states that “representatives from throughout the country came together to negotiate this agreement”, which also poses a first problem linked to the failure of the political dialogue. The problem lies in the representativeness of these “representatives”. Who did they represent? How were they appointed and though which procedures? What mandate did they have? And were they all “representatives”? There are many questions that remain unanswered. We know that there were delegates sent by the National General Congress in Tripoli and others from the House of Representatives in Tobruk, but there were also “representatives of political parties” as well as “representatives” of civil society admitted by the UNSMIL.

 Lack of hierarchization of the objectives

The second point that causes problems in the introduction to the Political Agreement is the statement according to which “the representatives” of the different Libyan regions met to negotiate an agreement to “build a democratic civil state through national consensus.” The problem posed is the issue concerning the Agreement’s objective. Was the objective that of bringing peace and security as the preamble for democratisation or should one consider that democracy itself would bring peace and security? In other words, there is no hierarchization of the objectives to be achieved nor any distinction between the long term, the medium term and the short term.

The introduction also states that the implementation of the Political Agreement, based on four principles; “ensuring the democratic rights of the Libyan  people, the need for a consensual  government based on the principle of the separation of powers, oversight and balance between  them, as well  as  the need to empower state institutions like the Government of National  Accord so that they can address the serious challenges ahead, respect for the Libyan judiciary and its independence. The implementation of this agreement  in good faith will provide the  tools needed to address the challenges of fighting terrorism, reforming and building state  institutions, stimulating economic growth, confronting the phenomenon of illegal migration  and consolidating the rule of law and human rights throughout the country.”

Vague structure, confusion of powers and lack of leadership

Another weakness in the 2015 Political Agreement is that there is not a very precise hierarchy of power. The source of the executive power’s legitimacy is not very clear. We do not know from where executive power arises and what its source is. Article 9 states that, “The Council of Ministers shall exercise the executive authority and ensure normal functioning of public state institutions and structures. […] Prepares the draft general budget and balance sheet of the State.” However, the agreement also states that the President of the Presidency Council of the Council of Ministers and is therefore prime minister, a position he adds to that of President of the Presidency Council, a position that is the equivalent of that of a head of state.

Article 8 of the Political Agreement specifies the responsibilities of the President of the Presidency Council. “Terms of Reference of the President of the Presidency Council of the Council of Ministers. Represent the State in its foreign relations. Accredit representatives of states and foreign bodies in Libya. Supervise the work of the Council of Ministers, and guide the Council of Ministers with regards to the performance of its terms of reference as well as preside over its meetings. Terms of Reference of the Presidency Council of the Council of Ministers: a. Assume the functions of the Supreme Commander of the Libyan army (a position opposed by the House of Representatives in Tobruk), […] c. Appointment and dismissal of ambassadors and representatives of Libya.” etc. The Head of State is also the head of government, which poses problems as far as the separation of powers is concerned in the case of members of a parliamentary system. It is the President of the Presidency Council and members of the aforementioned council who are called upon to form a government and present the list to the House of Representatives, which may or may not grant a vote of confidence.

In the power hierarchy, the Presidency Council (a collegial and overcrowded body) and its president, as well as the government, rank below the House of Representatives (Articles 2 to 11). On the other hand, the existence of a president and four vice-presidents, as well as other members of the Presidency Council, make this body ineffective and inoperative. This is one of the criticisms expressed by opponents who reject the Political Agreement.

From a legislative perspective, the 2015 Political Agreement stipulates that the House of Representatives is “the legislative authority of the State, during the transitional period” (Article 12). This House must also grant a vote of confidence or no confidence to the government of national accord. It adopts the general budget performing oversight over the executive authority (Article 13). It shall appoint (after consulting with the State Council) the Governor of the Central Bank of Libya, the Public Prosecutor and the Head of the Supreme Court (Article 15). The term of the House of Representatives shall continue until convening of the first session of the legislative authority as per the Libyan constitution (Article 18). Effectively, one does not know whether one is within the framework of a parliamentary system, a presidential system or a mixed one.

 The High Council of State is an aggravating factor in this crisis

Another aspect that makes the Political Agreement difficult to implement is the creation of the High Council of State. Even if Article 19 of the Political Agreement stipulates that this is the highest Consultative Assembly of the State, the creation of this High Council of State, and the prerogatives attributed to it, converge towards bicameralism. This bicameralism, both in itself and in the absolute, is a good criterion for democratic institutions. Effectively, great democracies all have more or less “balanced” bicameral systems. At the same time, however, this envisages consensual, peaceful and stable democracies. In the Libyan case, society is far from being peaceful and consensus is non-existent among the political elites of the East and the West of the country. In this sense, the creation of a High Council of State, which is part of the bicameralism, complicates further the democratic transition process rather than facilitating it.

The creation of the High Council of State answered the need to find a solution for the General National Congress that was no longer legitimate following the election of the House of Representatives in June 2014. Instead of decreeing the end of the Tripoli assembly, those who drafted the Political Agreement chose to overcome the issue by creating the High Council of State, which is nothing but a legacy of the General National Congress. Once again, an institution was created not in virtue of a political or theoretical principle, but so as to resolve a practical problem and by wishing to resolve this problem another was effectively created without resolving the first one.

On this point, the current UN Special Representative Martin Kobler played a very active role that went beyond his strictly supportive mission. On February 27th, 2016, a preliminary committee of 40 members of the General National Congress met with support and encouragement provided by Martin Kobler who attended the meeting. On April 5th, 2016, 94 of the 200 members of the General National Congress decided to hold a session and amend the 2011 Constitutional Declaration in order to integrate into it the Political Agreement, while declaring the dissolution of the General National Congress and the birth of the High Council of State. They then elected Abdulrahman Sawahili as its president. On April 12th, 2016, the High Council of State ordered all Libyan institutions to cease all relations with the General National Congress. Nonetheless, that same day the General National Congress met in Tripoli and rejected the creation of the High Council of State while declaring that only the national unity government was legitimate and that the General National Congress was legitimate as well as being Libya’s only legislative authority. It was therefore a mistake to have thought of and created this second House, the creation of which should have first envisaged a solution to the problem of the General National Congress in Tripoli, replaced in 2014 by the House of Representatives in Tobruk.

Another example of the High Council of State exceeding its competency, which illustrates the mistake made in the Political Agreement, is the fact that on September 22nd, 2016, the High Council of State proclaimed itself the highest legislative authority in the country, which exacerbated the political crisis even more. The intention was to effectively replace the General National Congress (a parliament elected between 2012 and 2014), which had become illegitimate following the election of the House of Representatives, with a High Council of State, the attributions and competences of which have not been outlined and established. Hence, Article 19 stipulates that the High Council of State “shall be the highest consultative Assembly of the State” and shall carry out its work independently according to the Constitutional Declaration. How can a consultative authority be independent and only be in compliance with the Constitutional Declaration?

The Agreement established that the House of Represent-atives in Tobruk must consult with the High Council of State in Tripoli on all important decisions. This applies in particular to the appointment of the Governor of the Central Bank, the Head of the Audit Bureau, the Head of the Administrative Oversight Authority, the Head of the Anti-Corruption Authority, the Head of the Supreme Court and the Public Prosecutor. In all the aforementioned cases the House of Representatives must consult and reach a consensus within 30 days. The House of Representatives must equally confer with the High Council of State to obtain approval for members of government (Article 3). The same applies in the event of the prime minister resigning or the position becoming vacant. In this case, the House of Representatives must confer with the High Council of State to reach consensus on the person chosen to replace him (Article 4). It is, however, also specified that it is the House of Representatives that must endorse the new nomination (Article 4). The same applies to the replacement of one or more deputy prime ministers. Once again, the House of Representatives must confer with the High Council of State to reach consensus, even if the vote of confidence returns to the House of Representatives (Article 5).

In the event of a very hypothetical approval of the Political Agreement by the House of Representatives, one can envisage that consensual appointments of the Governor of the Central Bank as well as those of the president and members of the High National Electoral Commission, the Head of the Audit Bureau, the Director of the Audits, the Head of the Administrative Oversight Authority, the president of the Supreme Court or the State Prosecutor, would inevitably pose serious problems and become the source of never-ending conflict and a paralysis of the institutions. These current and future problems arise from having attributed to the High Council of State competences that go beyond its consultative function. On this subject in fact, Article 15 stipulates that the two institutions “must reach consensus” on the appointment of these various heads of departments. The notion of consensus de facto necessarily implies an equality of power between the two Houses, which is the case in “balanced bicameralism” enforced in the Swiss political system, in the German political system and in that of the United States. In the case involving the Political Agreement, there is therefore a contradiction between the consultative role and the obligation to confer and reach consensus which, should the Agreement be applied, would make Libya a “balanced” bicameral system.

On this subject, one must bear in mind that what is at stake is not the creation of a second House with a consultative role, but rather the vagueness of competences attributed to it by the Political Agreement and the fact that they pose serious problems and are an additional source of conflict and paralysis. It would have been better to devise a strictly consultative second House consisting of the representatives of the more important tribes, the representatives of various economic organisations and association, along the lines of the French political system’s Economic and Social Council. Such a strictly consultative House could play an important role in the preparation and legitimisations of decisions as far as the population is concerned. The creation of such a Chamber would require a rewriting of the Political Agreement.

 The problems in constitutionalising the Political Agreement

The Agreement envisages that the House of Representatives must integrate the document in the constitutional corpus in order for it to become a fundamental text with the same status as the Constitutional Proclamation of December 2011. If things have not progressed as expected and there has still not been a vote on the adoption of this Agreement, it is because it poses a series of problems involving coherence with the Constitutional Proclamation, which remains the only document currently governing Libyan institutions. The Political Agreement sets out political principles of which some contradict the Constitutional Proclamation founding the Libyan transition. There again, there is the need for a hierarchization that presupposes changes to the Agreement to make it coherent with the Constitutional Proclamation. On the other hand, the institutional vagueness contained in the Agreement provides another reason for which it has not yet been approved and therefore legitimised by the House of Representatives.

 The UNSMIL and the Libyan crisis

The procrastinations and improvisations of UN representatives in Libya have not really contributed to resolving the crisis. The failure of negotiations and of this Political Agreement is partially to be blamed on them. The decisions and various reversals and abrupt changes of position have not contributed to making the UN’s mission in Libya effective and successful. The various representatives who have succeeded one another at the head of the UN Mission in Libya have not truly taken on board the real extent of the Libyan crisis, which is more than just a democratic transition crisis. They have not fully appreciated the problems of the aforementioned transition, which is of a very particular kind compared to other known and studied transitions. They truly and perhaps a little naively believed that the example set by nearby Tunisia could be used as a model. They believed they could be inspired by it to implement mechanisms that would lead to stabilisation and a successful transition in Libya. In reality, the Libyan crisis is far more serious than just a democratic transition issue. One forgets that the transition process follows general rules that must however take into account the historical situation of each country. Libya is not Tunisia and what worked there does not apply to another country, even a neighbouring one.

The United Nations mediation has currently reached an impasse. Every day, Martin Kobler discovers at his own expense that events in Libya are not evolving as expected. The Libyan reality is far more complex than perceived by the current UN Special Representative in Libya. This requires on his part a less idealistic and more realistic vision. Problems should have been hierarchized and a gradual agenda established, taking into account the social and historical burdens in this country. Instead, wide-ranging objectives were established with the very negative outcome the country is now experiencing.

The various United Nations Special Representatives who have succeeded one another since February 2011 did not take into account a correct assessment of the difficulties in this transition and believed it would be sufficient to be optimistic and show good will to institute a democracy in Libya, without first bringing peace to society, disarming the militias and resolving economic and social problems. It is the solution of these problems that will allow a successful transition, not the opposite. In other words, an agenda involving the reconstruction of the state and its institutions, destroyed in 2011, was needed, before envisaging a democratic transition. A different path was followed, hence the current impasse and the need to rethink the overall process of the international community’s involvement.

 Conclusions

 Four United Nations Special Representatives have succeeded one another in Libya since 2011 and yet the situation is far more serious than it was in March 2011, also at an economic, health and security level. The international community should therefore duly note that the dialogue is at an impasse. The international community will have to rethink the UN’s involvement in Libya starting on new premises. Sooner or later, using a stabilisation force, the international community will have to impose the reconstruction of the state starting with the heart of power in Tobruk, helping to secure the oil wells and ports and control the Mediterranean coast that is a threat to Europe.

Of course a political dialogue among Libyans is indispensable. Pacification must, however, be its primary objective alongside the country’s pacification, relaunching the economy and society’s revitalisation. This dialogue must be open, inclusive and honest. This dialogue must also involve key politicians, the army, the representatives of the country’s regions as well as the tribes, at least the most important ones. In its current form, the 2015 Political Agreement and the government of national accord that resulted from it are not the appropriate tools for resolving the crisis and ensuring the success of the democratic transition.

The international community, the Western powers and the United Nations continue to consider the 2015 Political Agreement as the only solution for resolving the crisis. Daily events and violence in Libya indicate that the crisis is becoming increasingly serious and that rejection of the Agreement is increasing and conflicting with the apparent unanimity surrounding the Agreement, which has been re-legitimised by the United Nations Secretary General. In his most recent report to the Security Council, Secretary General Ban Ki-Moon, stated that the Libyan Political Agreement and the government of national unity remain the appropriate framework for a democratic transition. They are, in his opinion, the only chance Libyans have to resolve their differences and lay the foundations for inclusive democratic governance.[5]

Nonetheless, Ban Ki-Moon is under no illusions, since in the same report he outlined a very negative assessment of the deteriorating situation in Libya and said that, “The window of opportunity that the Libyan Political Agreement has created is closing rapidly. For the country to forge a path forward, Libyan actors must pursue national reconciliation in earnest.” He expressed his profound concern for the slowness with which the Agreement is being implemented and the economic and security deterioration in the country. The Secretary General estimated that in the event of a failure of the efforts made, the international community will have to reconsider its approach to the democratic transition process in Libya.[6] The United Nations Secretary General therefore believes there is a possibility that the Agreement may fail and that there is a need to rethink the entire process. In a sense it is the admission of the need to rewrite the 2015 Political Agreement that Martin Kobler himself considered as not being set in stone (“The Political Agreement and it articles are not set in stone”).[7]

 Recommendations

  1. The Libyan political crisis is far deeper and more serious than a simple transition crisis. It is a crisis involving the mutation of society and of the state. Hence the question now posed with great seriousness consists in discovering whether or not the Libyans still wish to live together in a sovereign country and within the framework of an internationally recognised state, even if this means redefining its centralised or federal institutions.
  2. In a society that remains largely tribal, the social and political importance of the tribes is underestimated. Their capacity to guarantee a degree of peacefulness in social relations while securing the territory has not been taken into account and not integrated in the political process. Their ability to mediate has been underestimated and under exploited.[8]
  3. Considering the impasse, which has simply worsened the political crisis, it has become more than urgent to rethink the Political Agreement and restart on new foundations, because, in this state, the Skhirat Agreement is not a viable solution for allowing Libya to overcome the crisis. There is the need for a new inter-Libyan agreement that must be drafted by local powers with no foreign interference.
  4. All forced passages aimed at imposing the Skhirat Agreement and the National Unity Government can only cause the current crisis to deteriorate even further. In this perspective, the proposal supported by Martin Kobler for the creation of a presidential guard “to protect the state’s institutions and the embassies”, rejected by the powers in Tobruk, risks creating a situation of civil war between this presidential guard in Tripoli and the Libyan army in the East.
  5. It is urgent that Libya be equipped with a Government of National Unity, the composition of which should be debated in advance by the representatives of the East, West and South. This government must be recognised within the country before being approved by the international community.
  6. In addition to the House of Representatives, which must remain the only legislative power during the transition period, there is the need to create a strictly consultative second Chamber composed of the representatives of tribes and social-professional organisations. This Chamber must assist the government in making good decisions and act as a go-between and interface with society. The current High Council of State could fulfil this role, by way of an in-depth modification of the current political agreements and a redefinition of the High Council’s competences.
  7. Taking into account the hotbeds of tension and the rise in the risk of disintegration, and given the failure of the United Nations Mission in Libya, real mediation under the aegis of the international community is needed in order to avoid the situation evolving into a real civil war for which many of the ingredients are already present.
  8. Given the failure of the United Nations Mission in Libya and bearing in mind Martin Kobler’s lack of credibility and authority as he is criticised on a daily basis for his activism and excessive involvement in the process, the current Special Representative is no longer in a position to take action. The volte-faces, changes of position and his direct involvement in the process have weakened and destabilised him. He is no longer listened to and is therefore no longer the right man for the job. Under such conditions, a change is needed. There is the need for a new Special Representative who is trusted by both parties and capable of ensuring he is respected by adopting a more neutral attitude in the Libyan conflict.
  9. There is another alternative to the Skhirat Political Agreement, that of a new inter-Libyan agreement. It is therefore a mistake to state, as Martin Kobler did in front of the United Nations Security Council on December 5th, 2016, that “The only alternative to the Libyan Political Agreement is chaos.” It is the opposite of what is happening now, because Libya is already experiencing a situation of quasi-anarchy.
  10. All new political solutions must directly involve Russia and China, without whose support no lasting political solution is viable.

 

[1] The concept of transition, in its conventional definition, outlines “the interval between one political regime and another” G. A. O’Donnell and P. C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions About Uncertain Democracies, Johns Hopkins University Press, Baltimore, 1986; N. Guilhot and P. S Schmitter, “De la transition à la consolidation. Une lecture rétrospective des democratization studies”, RFSP 2000, 615-632 ; Renske Doorenspleet, Democratic Transitions, Lynne Rienner Publishers, 2005.

[2]Cf. M. Djaziri, “Libye : les enjeux économiques de la «guerre pour la démocratie”, in the magazine Moyen-Orient, n° 12, October-December, 2011, pp. 78-83 ; see also M. Djaziri, «“Un tournant incertain et douloureux. La Libye après Kadhafi”, in OASIS, Revue de la Fondation Internationale Oasis, Sociétés arabes, sociétés plurielle, n° 14, December, 2011, pp. 44-49.

[3]Cf. Moncef Djaziri, “La nouvelle stratégie de l’OTAN en Libye”, in Afkar/Idéees, n° 51, autumn 2016, pp. 32-34.

[4]Cf. M. Djaziri, “Libye : L’impasse de la médiation de l’UNITED NATIONS”, March 8th, 2016, https://theconversation.com/libye-la-mediation-de-lUnitedNations-
dans-limpasse-55734

[5]  United Nations, Security Council Report of the Secretary-General on the United Nations Support Mission in Libya, 1 December 2016, S/2016/1011.

[6]United Nations, Security Council Report of the Secretary-General on the United Nations Support Mission in Libya, 1 December 2016, S/2016/1011.

[7]“Kobler tells UN Libyan Political Agreement is “not written in stone””, by Libyan Herald Reporters, December 6th, 2016, https://www.libyaherald.com/2016
/12/06/kobler-tells-un-libyan-political-agreement-not-written-in-stone/

[8]Cf. Peter Cole with Fiona Mangan, Tribe, Security, and Peace in Libya Today, United States Institute of Peace, 2015: 36.

Credit: Patrick Baz / AFP