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article imageOp-Ed: Libyan Supreme Court decision may help UN negotiations

By Ken Hanly     Nov 17, 2014 in Politics
Tripoli - The Libyan Supreme Court well over a week ago ruled that the June elections in Libya were unconstitutional and that the House of Representatives now meeting in the eastern Libyan city of Tobruk should be dissolved.
The Supreme Court ruling complicates the situation in Libya. Up to now the UN and the international community has regarded the House of Representatives(HoR) meeting in Tobruk as the sole legitimate government of Libya, and its prime minister Abdullah Al-Thinni as the sole legitimate prime minister. The UN has been attempting to strengthen the role of the Tobruk government.
The UN dialogue to reach a political deal involved elected members of the HoR, who had boycotted the meetings. The UN did not include the alternative government of Omar al-Hassi, which controls the capital Tripoli, nor any of its allies in the east such as the Shura Council in Benghazi. Nor did it apparently include talks with militia leaders on either side of the conflict.
Jason Pack, Researcher of Middle Eastern History at Cambridge University has a long and very informative analysis of event in Libya. The article is worth reading in its entirety and can be found here. Pack believes that Libya should form a unity government composed of important figures from both sides of the conflict and he considers that the Supreme Court decision makes conditions for formation of such a government better than they were before the decision. The main reason for this is that the decision now makes consultation with political figures opposed to the Tobruk government necessary, since the claim that the Al-Thinni government is the sole legitimate government is now in question.
Conditions on the ground should have made it clear that such negotiations were necessary all along and without it the previous negotiations were arguably an utter failure. After all, leaving out of negotiations a party that controls the two main cities and much of the territory of Libya while strengthening what is virtually a government in exile in the far eastern city of Tobruk does not make much sense in any practical terms.
Mohamed Eljahr of the Atlantic Council Rafik Hariri Center said: "The international community's next step is key. Despite the UNSMIL [United Nations Support Mission in Libya] statement that it is studying the Supreme Court's ruling with its international partners,.. the EU ambassadors to Libya met with the Minister of Health in al-Thinni's government in Tunis shortly after the ruling, suggesting it is business as usual with the Tobruk government". As far as I can determine the EU has not made any statement on the Supreme Court decision and I can find nothing from the U.S. either. The EU, as the quote indicates, appears to simply be ignoring the decision and continues to act as if nothing has happened.
The UN response has been a bit more complex as discussed in my earlier article. The UN envoy Leon did meet with Nouri Abu Sahmein who is head of the GNC which appointed Omar Al-Hassi prime minister and who then formed the rival Libyan government. As the article points out, the UN does not even say who Sahmein is let alone saying what his position was. However, the same statement talks about Leon meeting prime minister Al-Thinni. While unwilling to even mention the General National Congress (GNC) at least the UN envoy did talk to an official of that body. Perhaps he will next meet with Omar al Hassi but not tell us who he is. The UN and the international community show little sign of changing their relationships with the Tobruk government due to the Supreme Court decision.
While the Supreme Court ruling was immediately rejected by the Tobruk government, it was welcomed by the Tripoli-based parliament and Omar Homaidan a spokesperson for the government suggested a positive solution to the political impasse." He said a possible way out of the crisis was to wait for a 60-member panel to finish writing Libya’s new constitution, then call a referendum on it and hold elections after that." This solution does not settle the question of who should rule up until that happens.
Pack has a solution to that problem although he admits that the Supreme Court decision has the potential to produce even more divisions within Libya: Despite this new potential for division, all domestic and international actors should agree on the form of a 'National Unity' government incorporating all the major political factions (MLA, Muslim Brotherhood, HoR members, Liberal-leaning technocrats, Berbers/Amazigh, Federalists, key tribal leaders, Tebu, and Toureg). Such an agreement would bypass the need for each actor to definitively 'take sides' by choosing to recognise one governing body as opposed to the other.
In the western media the narrative about the Libyan conflict is that it is between an Islamist bloc and their militia, and a secular bloc or at least those opposed to the Islamist role in politics lead by CIA-linked Khalifa Haftar and his allies whose Operation Dignity was directed against Islamists. His rhetoric and actions seem to be directed not only at violent jihadists but also the moderate Islamists who were a majority in the parliament his allies the Zintan brigades burned down. As Pack describes it: Haftar's binary approach was due partially to a misreading of the international scene and partially to international actors like the UAE, Qatar and the US wishing to see a binary narrative of events in Libya where they could 'easily understand' whose side to be on. Haftar concluded that the key to Western support was to claim to be fighting Islamists – of all stripes and of all backgrounds. In the first weeks of 'Operation Dignity', American Ambassador Deborah Jones stated "Haftar's enemies are our enemies." [45] This gaffe – which did not reflect any official US support of Haftar – dramatically encouraged his polarising tendencies as he concluded they would lead to greater Western and regional support. Pack, rightly in my opinion, rejects this binary narrative. He thinks that the situation is much more complex and less related to religion than other factors. Religion is used by the parties involved for their own political purposes. Pack describes the so-called Islamist bloc as follows: The term 'Islamist bloc' is a misnomer. In reality, the so-called Islamist bloc incorporates the Misratan-led alliance (MLA), which dominates the West of the country, as well as Jihadist and Islamist fighters throughout the country's East and South. This bloc's only shared ideological ground does not pertain to a specific view of the role of Islam in governance, but rather to their opposition to former Gaddafi functionaries serving in positions of power. [8] This bloc is led by the umbrella group of militias termed Libya Dawn – a loose coalition of Misratan, Islamist, and Berber militias based in Libya's Northwest. Libya Dawn [9] was assembled in July 2014 to evict the anti-Islamist Zintani militias from Tripoli. As such, the so-called Islamist bloc can be said to exert a hegemony over most of Western Libya via Libya Dawn, as well as control Derna and parts of Benghazi via the more ideological Islamist militias in Libya's East.
While Pack's suggestion that there should be a unity government until the constitution is written and voted on in a referendum followed by elections is certainly a good idea, the chances of such a government actually coming into being seems to be slim. Pack himself describes the situation which might make this difficult: Starting in October 2014, Haftar and the Zintanis began referring to themselves as components of Libya's official army and claiming to follow orders from a unified central command. By the start of November, Haftar's counteroffensive in Benghazi had achieved significant (although not necessarily decisive or permanent) gains, retaking many neighbourhoods from his Jihadi opponents. These successes are likely due to increased Egyptian backing and Western passivity. The perception of outside intervention elicited a backlash from the Islamists who used their military control of Tripoli to pressure the Supreme Court to issue its controversial ruling.
These developments have welded together the fortunes of Haftar and the Thinni government. Lacking the capacity to administer territory outside of Tobruk and Bayda, the Thinni government no longer derives its internal legitimacy from the June elections (it was elected by less than 20% of eligible voters but rather from the extent of external backing and recognition it receives and the fortunes of Haftar's military moves on the ground. [7] Hence, the future of the Thinni government depends largely upon whether international actors continue to treat it as legitimate – in spite of the Supreme Court's ruling and its poor administrative performance.
The evidence seems clear that the international community with few exceptions such as Turkey and Qatar continue to act as if the Tobruk government is the legitimate government. The Tobruk government rejects completely the Supreme Court ruling and no doubt Haftar too will consider the decision simply forced on the court to grant an Islamist uprising legitimacy. He is continuing his offensive to retake Benghazi with the blessing of the Tobruk government even though the UN envoy pleaded with the parties to quit fighting and not do anything to further polarize the situation. Egypt has clearly come out in support of the Tobruk government even since the Supreme Court ruling: The Egyptian Ministry of Foreign Affairs said in a statement that it also “fully supports the Libyan government in its efforts to carry out its responsibility of preserving the unity of Libyan lands and its territorial integrity”.
There is no question about the legitimacy of the Libyan government.
Pack claims that for the international community to play a positive role in the dialogue necessary to form a unity government that it must show a greater inclination to deal with the Tripoli government. The community must also stress that all sides should respect the constitutional drafting process. It does appear as if both sides at least at the political level do respect this process and that is one positive to the situation. However, the Tobruk government appears to be completely unwilling to give up its claim of legitimacy and have given Haftar and the Libyan armed forces a green light to retake not only Benghazi but Tripoli. This allows absolutely no room for dialogue and is clearly pays not attention to the UN demand that the parties stop fighting and not do anything the exacerbates the situation.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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