UN Written Statement – Libya

The following is the draft of a written statement to the 46th session of the UN Human Rights Council in Geneva. It has been prepared by Mr Mohamed Fortia, NCF’s Lead Analyst on Libyan Affairs. We welcome your feedback or comment.

With the recent UN led Libyan Political Dialogue Forum (LPDF) showing signs of progress towards rapprochement between the conflicting sides, the State of Libya seems to have a new chance at long-lasting peace. The Next Century Foundation is encouraged by these positive steps, however, Libya has been in a similar situation before and it does not take much to derail peace negotiations. There are steps that would help ensure the success of the LPDF and indeed of other peace initiatives in regard to Libya.

The LPDF has garnered a commitment by all participating parties to hold nationwide elections in December of 2021. We support this commitment. These new elections could bring much needed legitimacy to the Libyan government.  However the last national elections were held in 2014 and only had a voter turnout of around 18%. Furthermore, some constituencies were unable to participate in the 2014 elections due to security concerns. These factors culminated in a legislature with a weak mandate that did not have the political capital needed to govern the country.

Conditions that are conducive to safe and secure elections must be in place nationwide, prior to the forthcoming 2021 elections. We also recommend that international observers are present during the election, to ensure impartiality and fairness, just as in the 2012 Libyan elections.

We also note the Skhirat Agreement that was signed in 2015. This was a peace agreement to resolve conflict that arose from the 2014 elections. Just like the outcome of the LPDF, the Skhirat agreement was backed by many of the parties at the time. However, the agreement was not accepted by General Khalifa Haftar, the commander of the Tobruk-based Libyan National Army, and as a consequence created the political impasse in which the country has been mired since 2015. Similarly, the LPDF does not have support from General Khalifa Haftar and his forces, however, this time around, the vast majority of the Libyan legislature is backing the LPDF as is the UN-backed Government of National Accord (GNA).

We welcome the allocation of funding from the GNA to the Libyan High National Electoral Commission, as it shows commitment by the GNA to holding the forthcoming elections. That said, the NCF reiterates the need for the international community to fully support the LPDF and its objectives, as well as prevent actors who wish to derail the peace process from achieving their goals. The international community needs to put stringent measures in place to deter both domestic and foreign spoilers and show its commitment to democratic/civilian led rule in Libya.

New elections will certainly help put Libya back on the path to democracy, however in order to not fall back into civil unrest the nation needs to address some further issues. The NCF highlights the fact that Libya has no nationally recognised security institution as one of its major problems. Just like almost all institutions in Libya, the security apparatus of the country is fragmented at best and non-existent at worst. This problem is a remnant of the previous Gadhafi era, where institutional power was weakened to prevent possible opposition within the state. The NCF calls on the international community to help Libya rebuild the security apparatus in the country as a unified organisation that respects the rule of law and the authority of the civilian government.

The NCF also recognises the anger felt by many Libyans over what they regard as war crimes. We encourage the Government of Libya to consider the establishment of a truth commission, also known as a truth and reconciliation commission or truth and justice commission. This could be done along the lines of the Truth and Reconciliation Commission (TRC), the court-like restorative justice body assembled in South Africa after the end of apartheid. This would be a mechanism to bring to justice those who use military force that is in contradiction with international laws and customs. The other alternative, that of recourse to vigilante justice, would slow down any peace-building measures in the country and put Libya into a further cycle of instability.

The NCF notes the fact that the National Oil Corporation in Libya (NOC), does not trust Libya’s Central Bank (CBL). So much so, that the NOC has unilaterally decided to divert all oil and gas revenues to offshore Libyan accounts to not allow the CBL access to them. The NOC has asked that, to reverse this decision, the CBL agree to greater transparency.

Many of Libya’s regional/tribal disputes have been based on perceived economic inequalities between the disputing parties. This perceived inequality is exacerbated by the fact that Libya’s main economic institutions have been operating with little or no oversight from the government and provide little or no transparency. This secrecy and lack of transparency is a hangover from the Gadhafi era, and has been difficult to change due to the weakness of the state. The lack of government authority has caused the Central Bank of Libya (CBL) to operate independently and take economic decisions without getting prior governmental consent.  The CBL’s decision to act as an independent entity has caused many tensions and up until recently had led to its split, with one headquarters in the west of the country and the other in the east.

The NCF suggests that the International Monetary Fund (IMF), exercise their fundamental mission to ensure the stability of the international monetary system by giving practical help to members, and offer their assistance and expertise to Libyan economic institutions so as to strengthen and democratise them. We are glad to see the recent appointment of the accounting firm KPMG to conduct a full audit of the NOC’s financial accounts. We hope that this will bring to light any financial wrongdoing and increase trust. Greater support is needed from the international community for such efforts to become the norm.

The NCF would also like to recommend a more decentralised and equitable form of wealth distribution in the country. With a nation that is as large and sparsely populated as Libya, having most of the economic decisions made and controlled by a few bodies in Tripoli, may not make the best of sense. For instance, those in the southern desert city of Kufra, which is over 1700 km away from Tripoli, will likely have very different economic needs than that of the coastal capital. A more decentralised economic system would give Libyan municipalities greater agency and in turn increase democracy through direct accountability.

All recent indicators on Libya seem to point in the right direction and the NCF strongly supports all of the recent efforts that are being made to alleviate the political and humanitarian crisis in Libya. We would like to remind the international community and the United Nations, that in 2011 the Libyan people came out in support of democracy and liberty. These rights are guiding principles of most nations of the world and are rights that many in the international community take for granted. It was and still is the duty of the international community to support nations in their transition to democracy, Libya being no exception.

Give Peace a Chance in Libya

The Mid East Security Council of the Next Century Foundation has been discussing Libya. Those involved are both encouraged by recent developments, and concerned that foreign players may seek to undermine the latest tentative steps toward peace, if merely because Libya represents an opportunity for financial gain and / or hegemonic advantage.

Given recent Libyan peace talks under the auspices of the Political Dialogue Forum (LPDF) questions are being asked as to how the recent victory of President-elect Joe Biden would affect Libya.

The LPDF

The LPDF has proven successful thus far in bringing together the different sides in Libya’s civil conflict. The Next Century Foundation views the LPDF as a positive step forward breathing new life into Libya’s stalled political process. Some in the East of the country, however, are less optimistic stating that although the LPDF is a great start, they fear that this may result in an outcome similar to that of the Skhirat agreement (Morocco 2015) and so might fail. However, the level of support from the East with regard to the LPDF is much stronger than that which was present in the Skhirat agreement and so there was a higher chance of success.

The fact that the LPDF has already suggested a date for new national elections and both Libya’s UN-backed Government of National Accord (GNA) and the House of Representatives (the unicameral parliament of Libya with c. 127 members resulting from the 2014 Libyan parliamentary election) agree with it is a good sign for things to come. NCF Sources in the Libyan electoral commission also agreed that the funding provided by the government to initiate the elections was a good sign that the parties involved were eager to make the LPDF work. That said, General Haftar may not be as likely to accept the LPDF talks or the results of the new elections. However, he may have no choice in the matter, especially with his recent defeats in Tripoli and a shift in policy from regional powers (likely due to the election of Joseph Biden).

This progress is somewhat overshadowed by the fact that Libya still has no constitution. Meaning that although these elections would be giving new legitimacy to the government, the government still has no roadmap to decide what and where its powers are. Also, Libya’s Berber community are quick to point out that without a constitution, many minority groups would not have adequate protection or representation in the new government.

The Biden Victory

President-elect Joseph Biden’s victory will likely have a positive impact on Libya. A Biden presidency will likely want to continue the work of the Obama administration. The appointment of Antony Blinken as the next US Secretary of State is a good sign. The US under Biden would likely want to bring its NATO allies back into line, especially in Libya. Under a Biden presidency, the US will be concerned about growing Russian influence in the Mediterranean. All the more so in view of the fact the US house of representatives passed the Libya stabilisation act with bi-partisan support. The act reaffirms US commitment to democracy and stability in Libya, and emphasizes the need for the prevention of foreign interference, specifically that by the Russians.

Russian interference has been growing in years following the 2016 US elections. Not just in Libya but also in Syria and Eastern Europe. And in the absence of a strong US leadership, Russian influence in Libya has actually been promoted by NATO member states, especially France. This has caused hostility between France on one side and Turkey and Italy on the other (all three of whom are NATO members). However, with the recent Biden victory, many nations, including France and Turkey, have started to become more cautious about how they conduct their foreign policy.

Interestingly this approach by France was not just in contravention of NATO policy; it also contravenes European Union policy. There needs to be a strong, cohesive approach regarding Libya. If the current approach continues then the region could become even more unstable.

The Outcome

The recent LPDF talks are definitely something that brings hope for stability in the country. Furthermore, the recent gathering of HOR members in Ghadames, creating a quorum for the first time in years, is definitely a good sign. We must be cautious, though, as Libya has been through this before and shown progress, only to have that progress wiped out in the last minute.

With that said, the mood of the recent NCF meeting was definitely one of hopeful optimism. Participants agreed that given all that is currently going on with regard to Libya, there is definitely a recent push, domestically and internationally, to revive the peace process and establish stability in the country.

Libya: An Overview

With the latest Libyan peace talks currently limping on in Tunisia, Mohamed Fortia, the Next Century Foundation’s lead analyst on Libyan affairs, offers a snapshot of what is happening on the ground.

Cyrenaica (Eastern Libya)

It seems fitting to start with the current situation in Eastern Libya. Being the birthplace of the 2011 revolution, Eastern Libya, which has a population of around 1.6 million people, always opposed Colonel Gaddafi’s government in one way or another. However, opposition to Gaddafi in Eastern Libya was not uniform, this mainly due to the demographic makeup of the region.

The first of the main groups that make up the people of the East are the Bedouins who are largely tribal and reside in the smaller towns. The second are the non-Bedouins who mainly reside in the city of Benghazi and to a lesser extent Darna and Tobruk. Most of these non-Bedouins are descended from Western Libyans who migrated to these cities generations ago and now form a large majority of Benghazi’s almost 700,000 population. When it came to the opposition to Gaddafi, the grievances of the two groups were different, with the Bedouins being tribal in nature they were mainly unhappy that their tribes were not in higher positions of power. In contrast, the mainly city-dwelling non-Bedouins were unhappy with more individualistic issues such as access to better services in the East and access to more opportunities. It is important to make this distinction as it highlights the current situation in the East of the country.

When General Haftar initiated his campaign against the militias (some Daesh affiliated) in Benghazi back in 2014, it was reluctantly welcomed by the city’s population, as prior to the campaign the militias had been committing assassinations across the city with complete impunity. However, General Haftar’s campaign did not target only the militias, but many in his forces (most of whom were volunteers from various tribes) started targeting the homes and businesses of the non-Bedouin residents. This led to a mass exodus from the city of people who ultimately became internally displaced in Western Libya. General Hafter’s campaign also targeted any form of opposition, and this came in the form of removing all of the democratically elected councils in the East of the country and replacing them with his own military councils. Many in Benghazi were and are still opposed to this.

There have also been a number of disappearances. One sad example of this is the forceful abduction of Ms Seham Sergewa, who is the House of Representatives member for Benghazi and a critic of General Haftar. Her whereabouts are still unknown. Cause for great concern was the recent killing of Ms Hanan al-Barassi. She was a lawyer and activist based in Benghazi, and she ran a local association for the defence of women’s rights. Hanan was a staunch critic of General Haftar and regularly called for the reintroduction of civilian rule in Benghazi.

House of Representatives (HOR)

Although the legitimate legislature in Libya, the Tobruk based House of Representatives has more or less been reduced to a mere rubber stamp for General Haftar. This especially became the case after the targeted attacks on those seen as being in opposition to General Haftar (including Seham Sergewa), which led to many Western House of Representatives members fearing for their safety and fleeing to the West of the country. This left the House of Representatives with mainly eastern representatives, many of whom are from constituencies that support General Haftar.

However, with General Haftar’s recent military defeats there have been some moves by the House of Representatives members to regain control of the parliament and become the main political force once again in the East. We see this with the recent talks being held in Tunisia and the overt gestures by Ageela Saleh (Head of the House of Representatives) to come to a settlement with the executive branch in Tripoli.

Foreign actors in the East

Although officially the entire international community recognises the Government in Tripoli as the sole legitimate representative of the Libyan state; many countries are undermining the Tripoli Government and are aiding General Haftar with his campaign. The main supporters being the Russians through the Wagner Group, as well as the French, the Egyptians and most notably the UAE. There have even been talks of a possible Russian naval base in either the city of Tobruk or Darna. This would give the Russians a strong foothold in the Mediterranean.

Tripolitania (Western Libya)

Western Libya contains almost 60% of Libya’s entire population, some 3.6 million people. In fact, the greater Tripoli area alone contains almost a third of Libya’s entire population. Being the most populous region in Libya, Western Libya had benefited from a concentration of both political and economic capital throughout Libya’s history, especially in cities like Tripoli. However, Western Libya does not have as much of a strong tribal structure as in the East, and since there were more opportunities offered in the West, there was less resistance against Colonel Gaddafi’s administration.

Post-2011 Libya saw the decline of a strong central government, and this led to the rise and empowerment of locally elected councils throughout the country. Unlike in the East, where General Haftar removed all the elected councils early on; the councils in the West grew so much that many cities in Western Libya are currently operating almost as mercantile city-states. These cities are only nominally aligned to the weak central government. A great example of this are the cities of Misrata and Zliten. However, this is not the case with Tripoli. Although the central government is weak, it does still hold the purse strings of Libya in the form of the Central Bank, The National Oil Corporation and the Libyan Investment Authority. These three institutions are administered by the central government that currently sits in Tripoli. This has led many of these different cities to compete for influence in Tripoli and has led to several instances of conflict in the capital. At times militias have sought to take full control of the capital, but due to the sheer number of differing militias in the region, it is almost impossible for one group to do so. This is somewhat good news as unlike in the East where a single military force has taken full power, the militias in the West are individually weak and so civilian-led institutions can still function.

Government of National Accord (‘GNA’)

Created in 2015 through the UN-led Skhirat Agreement, the GNA was seen as the solution to the instability that had arisen due to the confused and inconclusive 2014 parliamentary elections. The Skhirat agreement was signed off on by both the rump General National Congress (who contested the results) and the newly formed House of Representatives. It was thought that since both sides had agreed to the formation of the GNA, then a lasting solution could be reached. The only issue was that by the time the House of Representatives was to officially pass the agreement in parliament, General Haftar had already started his campaign in Benghazi and had already taken over most of the East, including Tobruk (where the House of Representatives was sitting). The House of Representatives became unwilling to pass the agreement they had initially signed off on.

The GNA, having been created under the guidance of the United Nations, received full international recognition and went on to represent the executive branch of the country. However, this meant that the still legitimate legislative branch (House of Representatives) did not recognise the executive branch and so created a political impasse in the country. This impasse grew year on year and caused the GNA to rely ever more on a patchwork of militias in order to assert control in the region. Combined with the gradual loss of interest in Libyan affairs from the US after the 2016 elections, and the constant interference by foreign powers against the GNA; the GNA was ultimately left very weak and ineffective to govern.

Foreign influence in the West

From its inception in 2015, the GNA was and is the sole legal representative of the Libyan state, and so it has the sole recognition the UN. The major powers pay lip service to this recognition whilst at the same time undermining the GNA, France and Russia being prime examples. However, whereas most foreign interference that went against the Skhirat Agreement was somewhat hidden, ever since the 2016 US presidential election this interference has become more brazen.

In 2018 the UN arranged for the Libyan National Conference, which was another attempt to reach a lasting agreement in Libya. The conference was to be held on the 14th of April 2019 in Ghadames and had the aim of providing new elections in the country and a renewed sense of legitimacy to the Libya authorities. The GNA accepted this plan and went so far as to actually hold several local elections mostly in the West and South of the country, seeing how the East was out of their control. All seemed to be going to plan then on the 4th of April 2019 Haftar initiated an attack on Tripoli. It should be noted that UN Secretary-General António Guterres had arrived in Tripoli on the exact same day to ensure that all was ready for the conference.

Although the bombing of Tripoli was denounced by the international community especially as it seemed to be planned for the arrival of the UN secretary-general, no major steps were taken to stop this new outbreak of fighting. The GNA found it very difficult to withstand General Haftar’s advance, especially now that some major superpowers were all but openly backing him. After three months of constant shelling the GNA decided to seek assistance from nations such as Turkey and Italy in order to prevent itself from collapsing.

This led to the GNA signing a security agreement with Turkey in January of 2020, which was passed in the Turkish parliament in the same month. Legally there is nothing stopping two sovereign nations conducting such an agreement. However, the GNA did have to sign a new maritime border with Turkey, which was seen by many as a way for Turkey to increase influence over the Aegean Sea.

With Turkey now openly supporting the GNA, other nations such as France and the UAE were unwilling to step up in the same way, for fears of a full-on confrontation with the Turkish military. This allowed the GNA forces to retake lost territories. This weakened General Haftar so much so that there have recently been mass protests in Benghazi denouncing him and allowed the House of Representatives to distance themselves from General Haftar and come back to the negotiating table.

Fezzan (Southern Libya)

Unfortunately, Southern Libya, with a population of around 500,000 people in total, plays a very small role in Libyan politics. This has led to much neglect in the region and allowed human traffickers to operate freely and increase to the migration problem that is faced by southern EU nations. Although not very important to Libyan affairs, Southern Libya is critical to finding a solution to the migration problem and so the international community needs to ensure that the region is given its importance when any discussion on Libya occurs.

Where things stand today

Currently, there are renewed peace talks in Tunisia, which builds on the peace conference that was held in Geneva in October of 2020. These peace initiatives have come up with the idea of creating a joint security force made up of ten commanders, five from the West and five from the East, who will jointly run the city of Sirte. General Haftar has refused to accept these talks, and so it is mainly made up of the GNA, House of Representatives and several local councillors.

The Egyptians have backed down momentarily as they are now concerned with the looming crisis coming from Ethiopia. It is also hoped that with a new US presidency, Joseph Biden would seek to make right the mistakes of the international community in Libya. It is hoped that with the return of the US to the global stage, it will deter other nations from foreign interference in Libya. 

Libya: No instruction manual for the country

President Muammar Gaddafi was removed from power in October of 2011. Contrary to popular belief, post-Gaddafi Libya did not fall immediately into the chaos and instability that is plaguing the country right now. In fact, Libya was seen as being relatively stable compared with the other Arab Spring nations and was one of the first to hold free and fair elections back in 2012. Libya’s current instability can mainly be traced back to the parliamentary elections of 2014. The low voter turnout (18%) coupled with the growing sense of political apathy/cynicism among the population lead to a weak parliament, the creation of two competing governments and the rise of anti-democratic movements within the country.

The lack of a Constitution

Fast forward to today and Libya is still struggling with the issues of the 2014 elections in one form or other.

The founding block of any nation is the contractual relationship between those who govern and the governed. This usually comes in the form of a codified constitution and is used by a nation to outline the rights of its citizens and delineate the powers of its government, as well as the scope of those powers. Libya does not currently have a constitution, and this has posed a problem for both the General National Congress (‘GNC’) that was elected in 2012 and the House of Representatives (‘HOR’) that was elected in 2014. Neither of the two governments had any real guidance as to how they can govern the country. The result of not having a document to look back to, caused the two to be weak and susceptible to constant challenges to the legitimacy of their authority.

This issue is not one you would often see in other countries, that’s because many states consider the creation of a constitution as their top national priority. This occurred in post-revolution America back in 1776, and it was the same in post-revolution Tunisia in 2011. In Libya however, the National Transitional Council (‘NTC’) was more concerned about not being seen as another non-elected regime than it was about creating a functioning democratic roadmap for the country. Because of this, the NTC hastily set about organising elections for a new government (GNC) and only provided a weak and ambiguous Interim constitution for them. It was not until 2014 that a 60-member Constitution Drafting Assembly (‘CDA’) was elected in order to draft a constitution.

The CDA has proven to be very inefficient and incapable of providing Libya with a strong constitution. Although in 2017 the Assembly had managed to create and publish a final draft of a proposed constitution, the political seal of approval needed to pass it proved impossible to obtain. Libya has found itself in a catch 22 situation. The lack of a political framework in the country has caused political gridlock, and because of this, there is very little way for a new constitution to be ratified. This precarious situation regarding the constitution might not be all that bad. Although admirable and providing many protections, the 2017 draft constitution is vague and many of its articles could be read in contradiction with one another. This can pose many more problems in the future than it would solve. The fact that the CDA has yet to create and implement a constitution does provide Libya with the unique opportunity to amend the imperfections of the draft constitution or alternatively learn from the mistakes of the current CDA and start from Scratch.

Resolving the issue

As mentioned, one way of going about fixing Libya’s lack of constitution problem is to go back to the 2017 draft and amend the sections that would prove problematic in the future. The benefits of this are that there would be no need for new elections for a new CDA and the work would mostly involve amendments and not a complete rewrite. The cons of this approach are that the CDA, like the HOR, also received low voter turnout, boycotts and voter suppression during the course of their election. Furthermore, after 6 years in office, many in the country may wish for a fresh start with regards to the constitution.

A new Constitutional Drafting Assembly

Creating a new CDA (Constitutional Drafting Assembly) would come in the form of holding a nation-wide election to elect a 60 member body to draft a new constitution. This is the same size as the current CDA, however, unlike the current one the membership of the new CDA should be divided equally among the historical states of Libya (Tripolitania, Cyrenaica and Fezzan). Unlike a legislature, which should be based on proportional representation, the CDA is creating a lasting document that needs to ensure the rights of all Libyans regardless of factions (geographic or other). Therefore, each state would receive 20 members, and they should be divided equally between men and woman.  Furthermore, there should be an equal split among Arabs and Berbers 30:30, with the 30 Berber members divided equally among the three states and among the three Berber groups of Libya (Tuareg, Amazigh and Tebou). They will also be further divided equally between men and women. Each state’s members would look something like the following.

10 Arab delegates (5 male and 5 female)

10 Berber Delegate (5 male and 5 female)

Among the three states, there would be 30 Arabs composing of 15 men and 15 women. 30 Berbers composing of 10 Amazigh, 10 Tuaraq and 10 Tebou members and within each Berber group they would be divided equally between men and women (5:5).

What it could look like

Tripolitania

5 Arab men5 Arab women
5 Amazigh men5 Amazigh women

Cyrenaica

5 Arab men5 Arab women
5 Tebou men5 Tebou women

Fezzan

5 Arab men5 Arab women
5 Tuareg men5 Tuareg women

A Helping Hand

One thing is certain, and that is without a firm push from the international community for political stability in Libya, the current CDA or the potentially new CDA will have an almost impossible task of implementing a new constitution.

The international community had (and still does hold) a responsibility to Libya and specifically the liberal democracies of the world. It is shameful that in the years following the Arab Spring, these democratic nations failed to take the opportunity to expand and strengthen the ideals of liberalism in these nations. One would have thought the at least the EU which has experience in aiding former authoritarian nations in democratic transition, would have jumped at the chance of creating a so-called democratic, stable, southern shield for themselves. In fact, what has happened is that by neglecting their duties, the Europeans had allowed for a civil war to break out in Libya, that has led to mass migration into Europe. This has ultimately weakened the EU to such an extent that authoritarianism and strong man leaders are creeping back into Europe. Even Tunisia, which is the sole democratic nation in the Arab world, is receiving almost no aid from its EU neighbours and is currently holding on to that democracy by a thread. Tunisia could have been transformed into a shining example of what a stable democracy could bring to the Middle East. Yet what we see is the opposite, and in fact, nations such as France are actively aiding non-democratic movements in Libya and the region, so much so that they are aiding the Russians in gaining a stronger foothold in the Mediterranean and destabilising EU nations such as Italy and Malta.  The EU needs to get its house in order and return to its ideals of promoting human rights, liberalism and democracy, and one way to achieve this is by aiding its southern neighbours into establishing stable liberal governments.

In the days and months ahead

With the Biden victory in the US elections, we are cautiously optimistic that a Biden presidency would mean a US foreign policy that would aim to correct what Obama regarded as the greatest mistake of his presidency, his failure to take steps to help build the institutions necessary to create peace in Libya. Hopefully, Biden will take a stand against counterproductive interference from the regional powers and once again pursue a policy of promoting democracy and the ideals of liberalism. Hopefully, with a more forceful guiding hand, the process of implementing a new constitution in Libya will become an attainable goal.