The Libyan Political Dialogue: The Long Road to Skhirat

Executive Summary

On 17^th December 2015 representatives from Libya’s two parliaments, municipalities and civil society organisations signed an historical agreement in Skhirat, Morocco. The main factions of the country agreed on the formation of a government of national unity, a significant step in ending the civil war that is ravaging the country since 2011. Even though the complex task of regime-change in Libya revealed its deficiencies in the last four years, the  latest developments represent a glimpse of hope for the future and they show the importance of the international support in transitioning countries. However, major challenges lie ahead. In its implementation, the agreement will face the hostility of the hardliners and will suffer from the side effects of the fight against the Islamic State (IS) terrorist group. Moreover, the role of the different militias in endorsing and supporting the deal will determine the final success of the Libya dialogue.

UNSMIL and the Libya Dialogue

The new head of the United Nations Mission in Libya (UNSMIL) and UN Secretary General’s Special Representative in the country Martin Kobler was credited for the Skhirat agreement. Replacing Bernardino León, the German diplomat had a long experience in difficult contexts such as Afghanistan and Iraq: his last task as head of the Mission de l’Organisation des Nations Unies pour la stabilisation en République democratique du Congo (MONUSCO) represented his best credential for contributing to find a solution to Libya’s crisis.

In the last year and a half UN’s attempts to mediate between the internationally recognized House of Representative (HoR) in Tobruk and the General National Congress (GNC) in Tripoli turned out to be ineffective. The rift worsened in the last few months when relevant Libyan figures expressed criticism towards UNSMIL. Most of the accusations were directed at León. Previously, the European Union’s Special Representative to Libya, the Spanish diplomat was appointed as head of UNSMIL on 14^th August 2014, succeeding the Lebanese Tarek Mitri. The UN body was created by the Security Council resolution 2009 on 16^th September 2014 to support Libya’s new transitional authorities in their post-conflict efforts. However, it was only at the end of September 2014 that the Libya Dialogue process started in Ghadames. Since the beginning it seemed that the mediation process was incomplete: the meeting involved only HoR members (al-Jazeera, 2014).

The November 2014 Supreme Court’s ruling immediately plunged the political process into murky waters: the judicial body invalidated HoR’s election of June 2014, declaring the Tobruk based parliament unconstitutional (Profazio, 2014). A milestone in Libya’s transition, the ruling strengthened the position of the GNC vis-à-vis the internationally recognized HoR, forcing León to include members of the Tripoli parliament in the Ghadames process. Due to start in December, the new round of talks never took off because of the escalation in violence between the rival factions in the eastern oil facilities of Es-Sider and Ras Lanuf (Ulf Laessing, Ayman al-Warfalli, 2014).

Talks resumed in Geneva in January 2015. Despite the initial acceptance of being part of the negotiations, the GNC declined its participation claiming that it had not been consulted about the details. In this delicate phase, the rising role of the municipalities became relevant, especially when Misrata decided to send their representatives to Geneva. The most powerful militia in Libya, due to its role in the revolution that toppled Qaddhafi, the Misrata Municipal Council  distanced itself from the GNC by supporting the negotiations (Amanda Kadlec, 2015).

A new round of talks was set in February, in Ghadames again. On 11^th February León held separate meetings with the two main factions. Both parts agreed in principle to a government of national unity, confidence-building measures and disarming militias (Libya Herald, 2015). Nevertheless, these improvements were derailed by the Islamic State (IS) terrorist group’s penetration into Libya. After the killing of 21 Egyptian Copts, relationship between Tripoli and Tobruk worsened. A car bomb in the city of Qubbah resulted inCausing 40 dead and 70 injured, a car bomb in the city of Qubbah was the main point of contention: the HoR suspended its participation in the talks, blaming GNC for not condemning the attack.

Nevertheless, IS’ activities represented a wake-up call for both parliaments. At the beginning of March, the United Nations announced that the two political factions parts agreed to a new round of talks in Morocco and Algeria. Negotiations in Skhirat resultedwere productive and UNSMIL was able to release the first complete draft agreement since the beginning of the Libya dialogue (Azza K. Maghur, 2015). However, the GNC rejected the draft for being heavily in favour of the HoR. Furthermore, in May members of the Tripoli-based legislative body called to suspend the participation in the dialogue, asking for UNSMIL’s head to be replaced. In order to satisfy the demands of GNC, the UN produced a new effort in June: recognizing HoR as Libya’s legitimate parliament, a new draft established the creation of the State Council, a consultative body mainly composed by GNC members. These adjustments were however rejected by the HoR, producing a pendulum-like dynamic of dialogue in which new and increasing demands of one political faction werepart always met by a stubborn rejection of the other faction (Profazio, 2015).

The first Skhirat agreement: an incomplete consensus

In order to disrupt this perverse dynamic, León produced its final effort. On 11^th July UNSMIL’s head announced a new power-sharing agreement in Shkirat. The deal contained most of the provisions already mentioned, including the creation of a government of national accord (GNA) with the Presidency Council at the top. Composed by a Prime Minister and two deputies, this body should have taken unanimous decisions. The recognition of the HoR as the sole Libyan legislative body was reaffirmed in the deal, as well as the return of the boycotting members of the parliament. The creation of the State Council was reiterated: composed by 90 GNC members and 30 independent figures, the body was supposed to share some legislative powers with HoR, and weigh in on key appointments through joint committees with the HoR (Wolfram Lacher, 2015).

Multiple Libyan actors, including HoR, several municipalities, relevant political parties and civil society organisations, supported the agreement. However, the GNC’s absence was significant. The parliament in Tripoli rejected the UN proposals, labelling it as unsatisfactory. The vague provisions about the State Council’s role undoubtedly worried the GNC, which claimed that an equal footing with the HoR in any future institutional framework must be necessary. Moreover, a the GNC’s important demand was to scrap previous HoR appointments, in particular that of Khalifa Haftar. A polarizing figure, Haftar is the main author of the Karama operation against Islamists that resulted in the Benghazi besiege since May 2014 (Frederic Weherey, 2015). During the negotiations process, the HoR appointed Haftar as army commander, integrating the Libyan National Army (LNA) militia in its military rank in a defiant move against the GNC. In conclusion, despite the successful proclaims, the first Skhirat agreement was acutely defined as an incomplete consensus (International Crisis Group, 2015).

In the following weeks, further negotiations did not change the framework, paving the way for the emergence of so-called ‘spoilers’. New reservations about the Skhirat agreement were expressed and criticism deepened: while the Libya dialogue approached its end that was set by León himself for the 20^th September, the idea of a total rejection of UN-led talks spread. Further negotiations in Istanbul and Geneva proved ineffective, obtaining only to the return of 25 boycotting lawmakers to the HoR. Nevertheless, on 13^th September UNSMIL stated that the rival governments reached a ‘consensus’ on the main elements of the political agreement.

The breaking point

In the meanwhile, dissent against the freezing of the ‘status quo’ emerged in both camps: on 26^th August the head of the Tripoli delegation and the Second Deputy Speaker of the GNC, Saleh Makhzoum, had quit the talks and resigned from the Tripoli parliament (Ahmed Elumani, 2015). Makhzoum, who is a prominent member of the Muslim Brotherhood-affiliated Justice and Construction Party, was often at odds with GNC President Nouri Abu Sahmain over the handling of the talks. Considered a hardliner, Nouri Abu Sahmain accepted the resignation of Makhzoum. Although it was not clear as to the real reason behind the resignation, it is likely that Abu Sahmain opposed any kind of concession to UNSMIL and the HoR. The insisting demands of the GNC to amend the negotiated draft in the following Istanbul negotiations could substantiate this possible interpretation.

By contrast, the weakness of the civil institutions in Tobruk mirrored the increasing power of the military, in particular the LNA, which had been spreading rumours of a possible coup (Mezran, 2015). On 19^th September, Haftar launched ‘Operation Doom’ against anti-government forces in Benghazi. The offensive drew criticism from the international community: UNSMIL’s head Bernardino León affirmed that the timing of the operation was suspect, as it was set just before the expiring negotiations deadline. While condemning the escalation of violence in Benghazi, León accused Haftar of undermining the talks (Profazio, 2015).

With the 20^th deadline passed, León finally decided to push the negotiations to the breaking point. On 21^st September the Spanish diplomat declared that UN work was over, leaving both factions with nothing else than accepting the draft deal or decline it. This sudden announcement was supposed to be the final call for both parts political factions to accept the agreement. Rival parliaments were expected to present candidates’ names and select the nominees for the Prime Minister position, along with two deputy Prime Ministers and two members of the Presidential Council. The high expectations of this UN ultimatum were however disappointed in the following days, when the GNC declined to present a list of candidates for the high positions of the new administration. Tripoli-based parliament demanded new amendments to the deal in order to sign it, stressing an enduring discomfort with the proposed text. The move was also interpreted as an attempt to let the HoR’s mandate expire by the 20^th October, de-legitimating the Tobruk-based parliament and presenting the international community with a fait accompli. Nevertheless, on 5^th October, the HoR voted to extend its mandate indefinitely, until it can hand the power to a new elected body (Ayman al-Warfalli, 2015). Criticised by relevant authors, the move was interpreted also as a violation of the August 2011 Temporary Constitutional declaration (Jason Pack, 2015).

On the other front, UNSMIL’s head decided to move ahead on his proposals, accepting the risk of completely derailing the peace talks. On 9^th October, León announced a national unity government for Libya, naming Fayez Sarraj as the new Prime Minister (The Guardian, 2015) along with three deputies (one more than the previous plan). Even in this case the plan was rejected by the GNC in Tripoli. GNC member Mahmud Abdel Aziz affirmed that the announced government would have deepened the differences between the Libyan people (Naharnet, 2015), an implicit reference to three deputies representing the historical provinces of Libya.

The proposed unity government faced the same destiny in the east, where an unorthodox way of quelling dissent emerged: officially, the internationally recognized parliament rejected the unity government on 19^th October, in what was considered an arbitrary decision by the President of the House Aghila Saleh: according to Parliament spokesman Faraj Hashem, there was no vote on this important decision that seemed to interrupt the Libyan dialogue.

Kobler and the second Skhirat agreement

León’s moves succeeded in obtaining that both partspolitical factions agreed to disagree on the Skhirat deal. At the beginning of November, with relations between the HoR and the GNC at their record-low, the risk of nullifying every effort to preserve independence and unity of modern Libya was more than real. Moreover the figure of León came under the spotlight after a scoop by The Guardian: the British newspaper revealed that the UNSMIL’s head negotiated during the summer with the United Arab Emirates’ government for his personal appointment as head of the Diplomatic Academy of the country (Randeep Ramesh, 2015). The negotiations for a £35,000 a month job in Abu Dhabi shocked many observers as the United Arab Emirates (UAE) are supposedly part of the conflict in Libya, supporting the Tobruk parliament against Tripoli not only in diplomatic terms but also militarily. Furthermore, leaked mails from his office revealed how León was promoting UAE’s agenda during the negotiations, refusing to treat both sides as equal actors. Despite the clear conflict of interests, the former head of UNSMIL denied any wrongdoing.

After this point it was clear the need to turn the page, and implement a new strategy for Libya. The appointment of Martin Kobler was a natural consequence of León’s direction of the last phase of the dialogue. Even before the leaked mails’ scandal, the hazardous moves of the Spanish diplomat created mistrust between the main factions, de-legitimating both his figure and the role that UNSMIL role played in the Libya dialogue. One can argue that some errors have been made, in particular announcing deals and trying to enforce them even without the support of relevant actors of the mediation process.

Martin Kobler, who was in office since 17^th November, apparently showed a different approach, stressing the importance of security-related matters. In spite of the announcements, the supposed new agenda appeared to be not that different from León’s. In part, this was the result of the mounting pressure of the international community, worried about IS’ expansion in the country. Nevertheless, the real reason behind the increasing activism of UNSMIL was the opening of an alternative round of talks between the two parliaments: on 5^th December a declaration of principles was signed in Tunis and endorsed by several lawmakers from both sides. It aimed at the formation of a government of national unity, appointed by a committee of 10 members, 5 from each side.

In order to defuse what appeared to be a separate initiative from the UN negotiations, the international community intensified its efforts: few days later the European Union’s and United States’ diplomatic representatives to Libya insisted on a UN track as the only way forward. On 10^th December, Kobler addressed the media in Tunis after the meeting of the Libyan Political Dialogue, stating that “I felt consensus on […] not to open now the text of the agreement, to go ahead with the basis of the agreement. […] this is now the agreement which is on the table, and the Libyan political dialogue members are behind this agreement” (UNSMIL, 2015). The UN’s Secretary General Representative also received the backing of the international community: on 13^th December, the International Conference in Rome reiterated the support for the GNA as the sole legitimate government of Libya, announcing the end of all official contacts with individuals or institutions not validated by the agreement.

In the meanwhile, the second ‘unofficial’ track made progress: on 15^th December, the President of HoR, Aghila Saleh, met in Malta with his GNC counterpart Nouri Abu Sahmain, warning UNSMIL to hold off a signature ceremony, unauthorized by both bodies. Nevertheless, UNSMIL went forward, announcing the signature of the deal for the 16^th December. A postponement for logistical reasons gave Kobler the opportunity to meet Khalifa Haftar, but it is still unclear as to what the outcome of the meeting was. Finally, on 17^th December, a ceremony for the signature of the deal was held in Skhirat.

Libya and the risk of a permanent transition

The Skhirat deal represents a new window of opportunity for Libya. The agreement is not different from that negotiated by León in October. The HoR will be the main legislative body and the State Council as a second consultative chamber. However, the new version contains however provisions for a nine-member presidential council which in 40 days will name a new GNA endorsed by a UN Security Council resolution.

From a legal point of view, it is difficult to assess the legitimacy of the agreement. According to the AFP, 80 lawmakers out of 188 from Libya’s internationally recognized parliaments and 50 out of 136 members of the GNC signed the deal (ABC, 2015). Apart from these numbers, more doubts arose as a result consideringof the legal soundness: the signature was not authorized by the legislative bodies, with both the heads of the parliaments stating that the MPs were present in Skhirat only in their personal capacity. However, the same legitimacy of the two parliaments has been questioned several times in the last year, paving the way for a power vacuum that empowered terrorist groups.

Apart from these considerations, in the short-term the agreement provides for one-year transitional period before legislative elections in the country. However, few words were spent on the constitutional process. Revitalizing it will be crucial in order to interrupt Libya’s permanent transition. It is unclear at the moment whether the new government will have the main task to draft the new constitution or if it will resume the works of the Constitution Drafting Assembly (CDA), elected in February 2014. This political body is expected to release a first draft by July 2014, the body is still in session and it is also expected to propose the final version. Despite the boycott by relevant minorities (including Amazigh, Tuareg and Tebu), the CDA could represent the last lifeline of the dialogue, symbolizing the potential end of national unity.

Conclusion for policy

• All factions and main actors in Libya should endorse the Skhirat agreement, regardless of legal and juridical considerations. Inclusiveness is crucial to prevent a recurring ‘incomplete consensus’.
• In case of a failure of the Skhirat agreement, UN and the international community should provide with new solutions. As a A possible plan B, UNSMIL can opt for the separate initiative set by the Presidents of the two Parliaments, endorsing the declaration of principles and supporting this alternative track.
• The GNA should be expression of all the historical regions of Libya; equal representation should be granted to minorities, women and civil society organisations.
• Security in the country is a pre-condition for the implementation of the deal. Many western governments affirmed to be ready to assist Libya’s new institutions and seemed eager to send military support into the country in order to counter the IS’ threat. Even though the risk of tearing apart the country is relevant, the front supporting a peace-keeping mission is gaining strength. After all, the appointment of Kobler, who was the previous head of the largest UN peace-keeping mission, represents a tangible clue of possible future developments in Libya. However, any foreign intervention is likely to prove counterproductive and to be interpreted as a meddling in internal affairs.
• In order to mitigate the risk of a permanent transition, the GNA should establish and follow a road map based on three main focal points: the drafting of a Constitution, the holding of Legislative Elections, and a Referendum.
• As soon as the new government of national unity is appointed, the CDA should resume its works and present a final draft for the new Constitution. Once approved, the Constitution should be voted by the Libyan people. The Referendum on the Constitution could be held the same day of the general elections.