Libya’s Legitimacy Crisis: Hostage to the Skhirat Agreement

On 17 December 2015, the United Nations Support Mission in Libya (UNSMIL) joined Libyan delegations in celebrating the signing of the Skhirat agreement, or Libyan Political Agreement (LPA). Skhirat established the UN-recognised Government of National Accord (GNA) in Tripoli and was supposed to end the institutional and political split that emerged following the disputed 2014 elections. Instead of unifying the country, the Skhirat agreement has further deepened Libya's legitimacy crisis, gradually becoming an obstacle to peace. Despite the signing of the agreement by most of the delegates, the procedural and legal aspects of the LPA did not go as intended, creating further institutional and political fragmentation and derailing the country's transition instead of salvaging it.

The 2014 elections, which established the House of Representatives (HoR) as Libya’s new legislator, were rejected by the Islamist dominated General National Congress (GNC) in Tripoli, created following the previous 2012 elections. A few months later, the Supreme Court in Tripoli ruled to nullify the HoR’s establishment following a petition filed by a number of Islamist-leaning and Misratan politicians. The HoR rejected the Supreme Court’s ruling saying it was made under the threat of guns, heralding the institutional split between western and eastern Libya.

In December 2015, the UN Security Council (UNSC) recognised the GNA as Libya’s sole executive authority, but remnants of the GNC in Tripoli and its National Salvation Government led by Khalifa al-Ghwell refused to hand over power to the GNA. At that moment, Libya had three different governments, none of which was able to govern, but each was capable of blocking initiatives by the other two. The Interim Libyan Government in Bayda, headed by Abdullah al-Thinni, refused to hand over power until the GNA was ratified by the HoR, and the necessary constitutional requirements to adopt the agreement into the Interim Constitutional Declaration (ICD) were met.

The ICD is the country's political roadmap governing the post-Gaddafi transition. On his part, the commander of the eastern-based Libyan National Army, Khalifa Haftar, reluctantly agreed to send his own representative for the Presidential Council of the GNA, Ali al-Qatrani. But Haftar never recognised the Skhirat agreement and considered it a threat to his own ambitions to rule Libya. On two occasions in 2017 and 2020, he declared the Skhirat agreement void. In his latest attempt last month, Haftar also unilaterally declared himself Libya’s ruler by popular mandate.

Calls by the international community for a humanitarian truce during the month of Ramadan and due to the COVID-19 pandemic have not been heeded by conflict parties and their external patrons. The Berlin process failed to reverse the downward spiral and the massive escalations on both sides despite the commitment by all countries intervening in Libya. The United States is the only actor able to exert pressure on Turkey and the UAE and influence their behaviour, but has so far been unable or unwilling to use that influence to stop the escalation in Libya.

External support and access to Libya's financial resources fuel the crisis in Libya and enable both sides to continue with their violent escalation and access to advanced weaponry. The international community and especially the US should take urgent steps to enforce the arms embargo in Libya and stop the delivery of weapons by sea, air and land. Support for the EU's Mediterranean naval operation "Irini," which aims to enforce the UN arms embargo, is a good start.

International actors should further consider means of limiting the access of Libya’s conflict parties to financial resources from Libya’s oil revenues and foreign currency reserves to cover salaries, subsidies and the needs of critical sectors, but only with some form of international oversight and audit mechanisms.

Ultimately, international actors invested in Libya must stop falling into the legitimacy trap that has been exploited by Libya’s conflict parties and their external backers, question the almost automatic support for the never fully implemented Skhirat agreement and begin devising new mechanisms able to place equal pressure on both sides, increasing the propensity of actors across Libya to resume a true and legitimate negotiation process.

On 17 December 2015, the United Nations Support Mission in Libya (UNSMIL) joined Libyan delegations in celebrating the signing of the Skhirat agreement, or Libyan Political Agreement (LPA). Skhirat established the UN-recognised Government of National Accord (GNA) in Tripoli and was supposed to end the institutional and political split that emerged following the disputed 2014 elections. Instead of unifying the country, the Skhirat agreement has further deepened Libya’s legitimacy crisis, gradually becoming an obstacle to peace. Despite the signing of the agreement by most of the delegates, the procedural and legal aspects of the LPA did not go as intended, creating further institutional and political fragmentation and derailing the country's transition instead of salvaging it. [1]

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The 2014 elections, which established the House of Representatives (HoR) as Libya’s new legislator, were rejected by the Islamist dominated General National Congress (GNC) in Tripoli, created following the previous 2012 elections. A few months later, the Supreme Court in Tripoli ruled to nullify the HoR’s establishment following a petition filed by a number of Islamist-leaning and Misratan politicians. The HoR rejected the Supreme Court’s ruling saying it was made under the threat of guns, heralding the institutional split between western and eastern Libya [2].

In December 2015, the UN Security Council (UNSC) recognised the GNA as Libya’s sole executive authority, but remnants of the GNC in Tripoli and its National Salvation Government led by Khalifa al-Ghwell refused to hand over power to the GNA. At that moment, Libya had three different governments, none of which was able to govern, but each was capable of blocking initiatives by the other two. The Interim Libyan Government in Bayda, headed by Abdullah al-Thinni, refused to hand over power until the GNA was ratified by the HoR, and the necessary constitutional requirements to adopt the agreement into the Interim Constitutional Declaration (ICD) were met.

The ICD is the country's political roadmap governing the post-Gaddafi transition. On his part, the commander of the eastern-based Libyan National Army, Khalifa Haftar, reluctantly agreed to send his own representative for the Presidential Council of the GNA, Ali al-Qatrani. But Haftar never recognised the Skhirat agreement and considered it a threat to his own ambitions to rule Libya. On two occasions in 2017 and 2020, he declared the Skhirat agreement void. In his latest attempt last month, Haftar also unilaterally declared himself Libya’s ruler by popular mandate [3].

It is time to move beyond the Skhirat agreement, developing a new mechanism for reconciliation and the formation of a domestically and internationally legitimate government in Libya. Going forward, the international community must avoid hasty conferment of international legitimacy. In the future, legal and binding domestic legitimacy must precede the conferment of international legitimacy. This can be done by ensuring that legal and procedural requirements to ratify any agreement are met before the conferment of international recognition through UNSC resolution to any of the bodies that emanate from a future political agreement.

Additionally, this should entail conditioning international recognition of the rump GNA Tripoli government, in the same way that the international recognition of the HoR in Tobruk back in 2014-2015 was limited to pressure the two sides to the negotiation table, ultimately achieving the LPA in Skhirat. This could be achieved by issuing a UNSC resolution to that effect.

The GNA, although recognised by the UN via UNSC Resolution 2259, which legitimised the LPA, has been a rump institution since early 2017 and now represents only one side of the ongoing conflict. In a similar fashion, the HoR which was also legitimised by the same UNSC Resolution, is also a rump parliament which today suffers from similar legal and institutional shortcomings for legitimacy, notwithstanding its election in 2014.

With regards to the rump Tripoli government, for instance, two of the GNA’s Presidential Council deputies, Ali al-Qatrani and Fathi al-Majbri, have boycotted the Tripoli-based GNA and declared their support for Haftar, and another, Musa al-Koni, resigned in January 2017. Out of the nine members of the Presidential Council of the GNA, only five are currently active. Additionally, Article 1, paragraph 3 of the LPA stipulates that decisions made by the GNA's Presidential Council are to be issued unanimously by the President and his deputies. [4] A legal quorum that has not been met since January 2017.

With these developments in mind, it is imperative that the United Nations and international actors stop conferring automatic legitimacy and international recognition to the rump GNA in Tripoli while ignoring or sidelining the similarly rump HoR parliament in Tobruk. In this regard, it is important to note that the HoR in Tobruk is also recognized by the same UNSC resolution as the country’s sole legislator. It is the legislator that was supposed to ratify the Skhirat agreement and legitimise the GNA [5], but this never happened due to its internal divisions and disagreements as well as pressure from Haftar and his allies. The HoR is handicapped. Its 200 members are at the mercy of its Speaker, Agilah Saleh, and has been unable to hold its meetings to ratify the LPA and enact the required legal and constitutional amendments to activate it. The HoR splintered between supporters and opponents of the LPA.

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The GNA has exploited and abused its international recognition to make requests for military and counterterrorism assistance and cooperation. Examples include the GNA’s invitation to set-up an Italian military presence in Misrata in the form of a military hospital in 2016, counterterrorism coordination efforts with the US against the so-called Islamic State in Sirte and, most recently, the direct Turkish military intervention to support the GNA against Haftar’s military campaign.

Any such assistance to the GNA should have been conditioned with a clear commitment to a political reconciliation process to end the country’s legitimacy crisis, and stop the coercion and domination of government institutions in Tripoli by the cartel of militias aligned with the GNA [6]. Similarly, recognition of the HoR should be conditioned on the correct and independent performance of its legislative role, free from outside pressure or military threats, including by the LNA.

Interference or undue influence over political institutions, from Haftar or other armed actors in Tripoli or Misrata must be rejected and warrant meaningful action including sanctions by the UNSC, the United States and the European Union. A clear UNSC sanctions mechanism should be put in place to serve that purpose.

For any attempt at political reconciliation to succeed in Libya, the international community should demand and enforce a ban on outside interference in Libya’s conflict and stop the flow of arms in violation of the UN-embargo. Equally important, the United Nations should introduce mechanisms of oversight and auditing over the assets of Libya’s Central Bank (LCB) and National Oil Corporation (NOC) to bring greater financial pressure on both sides to come to the table and form a truly inclusive, unified government.

The UN's continued recognition of the GNA despite its limited control over the country is problematic because the GNA lacks any form of domestic recognition in Libya, given that it was never ratified by the country's sole legislator, the HoR. Moreover, according to the Skhirat agreement, the length of the GNA’s mandate is limited to two years, ending in December 2017 [7]. The continuation of such recognition without limits and controls will impede any progress for reconciliation efforts in Libya.

Moreover, the GNA used its UN recognition to formally invite Turkey into the Libyan conflict, taking foreign interference in Libya to a whole new level compared to previous interventions, in clear violation of the UNSC’s own resolutions. The implementation of the security cooperation agreement signed between Turkey and the GNA in November 2019 violates resolution 1970 [8], and has opened the door for further systematic violations of UN sanctions imposed by the 2011 resolution.

This development will invite further escalation from Haftar’s foreign backers, especially the UAE and Egypt, and will likely open the door for greater Russian influence in eastern Libya. Turkey's overt intervention in support of the GNA with the deployment of Arab-Syrian mercenaries, Turkish military experts, advanced air defence systems and combat drones, mirrored similar interventions by Haftar’s foreign backers in Egypt, the UAE and Russia, but it did not deal a decisive blow to Haftar’s forces, which are presently being resupplied with more mercenaries, advanced air defence systems and fighter jets in a bid to reverse the GNA’s recent advances in western Libya.

The United States and others in Europe should drop the belief that the Turkish intervention in Libya will create balance on the ground, eventually pressuring Haftar and his patrons to accept a return to the negotiating table. In fact, the opposite happened. On 30 April, the GNA emboldened by recent military successes against the LNA rejected a unilateral truce offered by Haftar, presumably out of a belief that it could move forward and capitalise on its territorial advances, further weakening Haftar in western and southern Libya [9]. The GNA made a huge mistake for the country and the entrapped citizens of Tripoli, and thus must accept responsibility for that decision.

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Since then, the GNA has made significant advances against Haftar’s LNA in western Libya, signaling further escalations and conflict. Meanwhile, Haftar and his foreign backers are feeling the heat from the Turkish intervention and are stepping up their own war efforts, including the indiscriminate bombing of Tripoli. Escalation has only invited more escalation in Libya.

The GNA has interpreted international recognition as a signal that they can monopolize national political authority and control over the country’s wealth, while at the same time diminishing its propensity for compromise or negotiations given its veneer of international legitimacy. In that sense, blanket expressions of international support for the GNA are counterproductive.

For its part, the eastern camp spearheaded by Haftar and Agilah Saleh, the president of the rump HoR in Tobruk, have similar deficiencies. The eastern camp has been embroiled in its own internal crisis since Haftar’s military advance slowed and his declaration to rule by popular mandate sparked an unprecedent crisis between him and his allies in eastern Libya [10]. Although enjoying a level of international recognition as per UNSC resolution 2259, the HoR in Tobruk is divided and lacks legal quorum for meetings, and tens of its members have defected and set up a parallel body in Tripoli allied with the GNA.

However, the eastern camp has led a successful campaign to prevent the GNA from gaining formal domestic legitimacy or recognition through a legal vote in the HoR. The April 2019 Tripoli offensive by Haftar was designed to complete the LNA’s streak of territorial gains that started in 2015, in a clear attempt to take control of the CBL, NOC and other key governing institutions headquartered in Tripoli.

The April Tripoli offensive was launched by Haftar ten days before a national conference planned by the UN was supposed to take place, demonstrating that Haftar had little or no regard for the UN-led political process in Libya. He launched his offensive exactly when UN Secretary-General António Guterres was in Tripoli seeking to unite the country, launch a reconciliation process, agree on a constitution and hold democratic elections.

Calls by the international community for a humanitarian truce during the month of Ramadan and due to the COVID-19 pandemic have not been heeded by conflict parties and their external patrons. The Berlin process failed to reverse the downward spiral and the massive escalations on both sides despite the commitment by all countries intervening in Libya. The United States is the only actor able to exert pressure on Turkey and the UAE and influence their behaviour but has so far been unable or unwilling to use that influence to stop the escalation in Libya.

External support and access to Libya's financial resources fuel the crisis in Libya and enable both sides to continue with their violent escalation and access to advanced weaponry. The international community and especially the US should take urgent steps to enforce the arms embargo in Libya and stop the delivery of weapons by sea, air and land. Support for the EU's Mediterranean naval operation 'Irini’, which aims to enforce the UN arms embargo, is a good start.

International actors should further consider means of limiting the access of Libya’s conflict parties to financial resources from Libya’s oil revenues and foreign currency reserves to cover salaries, subsidies and the needs of critical sectors, but only with some form of international oversight and audit mechanisms [11].

Ultimately, international actors invested in Libya must stop falling into the legitimacy trap that has been exploited by Libya’s conflict parties and their external backers. They should also question the almost automatic support for the never fully implemented Skhirat agreement and begin devising new mechanisms able to place equal pressure on both sides, increasing the propensity of actors across Libya to resume a true and legitimate negotiation process.

1. For further reading on the failure of legal and procedural aspects of the LPA, Azza Maghur: https://africar3.com/when-does-the-libyan-political-agreement-expire/

2. Article 1, Paragraph 3 of the Libyan Political Agreement. Available at: https://unsmil.unmissions.org/sites/default/files/Libyan%20Political%20Agreement%20-%20ENG%20.pdf

3. Article 1, Paragraph 3 of the Libyan Political Agreement. Available at: https://unsmil.unmissions.org/sites/default/files/Libyan%20Political%20Agreement%20-%20ENG%20.pdf

4. Article 1, Paragraph 3 of the Libyan Political Agreement. Available at: https://unsmil.unmissions.org/sites/default/files/Libyan%20Political%20Agreement%20-%20ENG%20.pdf

5. Articles 12 and 13 of the Libyan Political Agreement. Available at: https://unsmil.unmissions.org/sites/default/files/Libyan%20Political%20Agreement%20-%20ENG%20.pdf

6. Wolfram Lacher. 2018. Tripoli’s Militia Cartel. Available at: https://www.swp-berlin.org/fileadmin/contents/products/comments/2018C20_lac.pdf

7. Article 1, Paragraph 4 of the Libyan Political Agreement. Available at: https://unsmil.unmissions.org/sites/default/files/Libyan%20Political%20Agreement%20-%20ENG%20.pdf

8. UNSC resolution 1970. 2011. Available at: https://www.undocs.org/S/RES/1970%20(2011)

9. France 24. 2020. Libya’s UN-backed government rejects strongman Haftar’s unilateral ceasefire. Available at: https://www.france24.com/en/20200430-libya-strongman-haftar-agrees-to-ramadan-ceasefire

10. Kamel Abdullah. 2020. Ahram Online. Libya: Haftar’s next step. Available at: http://english.ahram.org.eg/NewsContentP/50/368698/AlAhram-Weekly/Libya-Haftar’s-next-step.aspx

11. See for instance, Jason Pack, https://www.mei.edu/publications/international-financial-commission-libyas-last-hope