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September 12, 2015
At a modest gathering in July in Skhirat, Morocco, Libyan dialogue participants initialed a long negotiated United Nations Support Mission in Libya’s (UNSMIL) facilitated political agreement. Not present at the gathering was the dialogue team representing the General National Congress (GNC)—the political body that reinstated its authority after the Libya Dawn militias took control of Libya’s capital of Tripoli. In a last minute move, the head of GNC delegation to the negotiation Saleh al-Makhzum held a press conference in Skhirat announcing the refusal to initial the agreement. Other GNC members, including its president, endorsed al-Makhzum’s position. As delegates return to the negotiating table in Skhirat over the next week, they will have to reach a consensus committed to a sovereign, democratic Libya rather than the divisive parochial interests that has led to the current crisis.

The reasons behind the GNC’s refusal to initial the agreement can be summarized as follows:

1.       The GNC rejects anything short of equal status in any power sharing arrangement with the House of Representatives (HoR). It also insists that the HoR be recognized and considered legitimate only after it adopts the agreement.

From the GNC’s perspective, no handover of power took place between the two legislative bodies, which nullifies the HoR and any decisions it made in the past year. The GNC insists, as the only ongoing legitimate legislative body, that only it has the authority to adopt the agreement, after which it would transfer power to the HoR. The GNC bases its claim on a contentious Libyan Supreme Court ruling from November 2014 that—according to the GNC's interpretation—dissolved the HoR, despite contrary opinions of HoR members, Libyan legal scholars, and the international community.

The HoR agreed to face-to-face negotiations with the GNC, despite blaming the GNC for the situation in Libya today. Even the Libyan Supreme Court in its November 2014 ruling held the GNC responsible for its failure to abide by the Constitutional Declaration that governed the transition in adopting the Seventh Amendment of the Constitutional Declaration that established the HoR, thus precipitating the political crisis in the country. By initialing the UNSMIL agreement, the HoR nonetheless agreed to share power, granting the GNC significant representation in a new advisory body—the High Council of State (HCS)—and a role in the upcoming Government of National Accord (GNA). The HoR also delegated its existing executive power to an envisaged GNA.

2.       The GNC rejects the terms of the agreement regarding the military and police under the GNA. As with the HoR, the GNC wants recognition of Libyan institutions—including the military and police—to start with the agreement itself.

The target of this objection is General Khalifa Haftar who launched Operation Dignity in 2013 and whom the HoR appointed Commander-in-Chief of the Libyan National Army in March. The GNC, its allies, and supporters of Operation Libya Dawn claim that the takeover of Tripoli was a response to Operation Dignity in the east to prevent its expansion to the west.

The GNC’s refusal to initial the agreement did not prevent the initialing ceremony from taking place in Skhirat. Nor did it prevent the GNC from attending the last dialogue meeting in Geneva on August 12, a private meeting with Mr. Leon in Algeria on August 1, and a meeting in Istanbul during the first week of September. The GNC’s confusing position—between hard line rejection and continued engagement in the dialogue process—suggests a split within the GNC between two camps: a hard line group that rejects dialogue by placing preconditions and delaying progress until the HoR mandate expires in October and another camp looking to resolve the crisis.

What next? Full legal engagement between parties

UN Envoy Bernardino Leon expects the imminent signature of the agreement and its annexes by all parties to the dialogue. The agreement annexes would include both the nomination of the GNA Presidential Council and cabinet and a mechanism for choosing HCS members, defining its organization and functions. This step requires full legal engagement between the parties. There is a risk, however, that some parties to the dialogue—even those who already initialed the agreement last month—could refuse to sign on at the last moment. The annexes to the main agreement—agreements in and of themselves to be negotiated in Skhirat this weekend—could present some obstacles. As important as it is for the GNC delegation to sign the agreement, it is just as important to retain the support from the parties who initialed it.

Notably, this UNSMIL-facilitated political agreement is not an international agreement; it is a contract between Libyan parties—including institutions and individuals—to be facilitated and implemented under UN auspices. The United Nations Security Council (UNSC) could further strengthen the document by adopting it or endorsing it under a Chapter VII resolution, as the situation profoundly affects international peace and security. Article 58 provides the option for the GNA to request a UNSC resolution endorsing the agreement. The Islamic State (ISIS or ISIL) presence in Libya, the continued flood of immigrants from Libyan shores to Europe, and the stream of UN and EU resolutions related to Libya should elevate this agreement to the international level. A contract under Libyan laws alone would give spoilers yet another opportunity to create obstacles for Libya’s political stabilization and prevent a return to the democratization process. Given the negative effects of civil war on Libyan institutions, Libyan courts cannot manage such a vital and sensitive document on its own; given the international implications, the agreement should not be limited to its jurisdiction.

Elevating the agreement to that of an international document would also protect it from legal challenges before Libyan courts under political motives. The Libyan Supreme Court has no jurisdiction over international agreements or international resolutions, nor the jurisdiction to interpret them in accordance with the law (No. 6/1968 related to the reorganization of the Supreme Court). National legal steps would still buttress its terms, however, alongside international adoption of the agreement.

The Libyan military and police

The Libyan tragedy proves that institutional legitimacy will not suffice without the means to physically secure and protect it. The militias, Libyan army, police, and security establishments will require immediate and extensive reform by the forthcoming Libyan GNA. The agreement reflects the importance of this dimension by allocating the longest chapter to security arrangements (Articles 35-48). Ultimately, Libya’s democratization process and state organizations, particularly the military and police, cannot coexist in tandem with militias that can challenge the state’s monopoly on the use of force and continually threaten the integrity of the Libyan state and its government.

As soon as the GNA is established one of its primary and urgent tasks will be to address security in Libya. This is not for the parties to the dialogue to address; their task is to reach an agreement and not to govern. In accordance with the agreement, the security issue—including the military and the police—will lie exclusively within the GNA’s jurisdiction.

As Libyans parties to the dialogue meet this week in Skhirat, the hope for a signed agreement and its annexes give hope for Libyans to resume their path toward democracy and the Mediterranean basin to gain its peace. To reach that end, the delegates will have to compromise, keeping in mind that the health of a nation and a region is at stake. With international support, both legal and technical, and with Libyan dedication to a unified sovereign state, there remains a strong chance for a brighter future.

Azza K. Maghur is a lawyer, human rights activist, and former member of the February Committee tasked by the General National Congress to amend the transitional constitution and prepare the elections law.

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