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Op-Ed: Interview with Toaldo and Eljarh on the Libyan situation

The two analysts are asked a number of questions in an attempt to make sense of the complex series of happenings in Libya. The whole interview is well worth reading in its entirety and much superior to the reporting in most coverage of Libyan events in my opinion. Toaldo gives an interesting account of why the Libya Dawn militia did not come out in support of the Tripoli government and mount a fight against the GNA when it arrived in Tripoli.
He also suggests: Some people in Libya fear that the GNC might try to take the lead [in the GNA] because of the HOR not moving forward with its implementation. They fear that some Europeans and the United States might say “okay, the HOR doesn’t want to play ball, the GNC State Council has been purged of its hardliners, so let’s work with the GNC”. Toaldo thinks that will not happen because the HoR has the backing of Egypt and the UAE. He does not think France or Italy will go against the wishes of these supporters of the HoR. Actually, they are supporters of Khalifa Haftar the commander in chief of the Libyan National Army who virtually controls the HoR. Some might worry that members of the Muslim Brotherhood could dominate “Libyan politics” but Toaldo thinks this unlikely. What could happen however is that to bring the HoR on board and support the GNA, the UN might allow Haftar to keep his position and if this happens the GNA might implode with Islamists and many others leaving.

Mohamed Eljarh notes that the HoR must meet and vote an amendment on the constitutional declaration of 2011 and also vote confidence in the GNA. Eljarh believes that there will most likely be a positive vote but Article 8 of the additional provisions still is an obstacle:Article 8 of the additional provisions states that all senior military positions would be reset as soon as the agreement is signed, but that has not been the case because the House of Representatives about seven weeks ago met and voted to drop Article 8 or freeze it completely. I think that will be one of the sticking points there. But my reading is that there will be a compromise and that we will see Article 8 frozen or dropped altogether and then we will see the GNA approved.

There are two articles 8. One in the main text and one in the additional provisions, the one that Eljarh refers to. What it actually says is this: All powers of the senior military, civil and security posts stipulated in the Libyan legislations and laws in force shall be transferred to the Presidency Council of the Council of Ministers immediately upon signing this Agreement. This appears to say that the power of commander in chief is transferred to the PC. As I argued in an article back in the middle of January. Haftar lost his job back on December 17. Is that incorrect? Exactly why?

Eljarh says that it is “because the House of Representatives about seven weeks ago met and voted to drop Article 8 or freeze it completely.” However, the article came into force immediately upon signing the agreement at Skhirat. Seven weeks ago is some time in February. It was already in force for some time but was ignored. The GNA ignored its own responsibilities under the Libyan Political Agreement (LPA).

The HoR has no power to drop an article or “freeze” an article, whatever that means. Even Kobler pointed out that the LPA had to be passed as it is before it could be amended. So how can there be such a compromise? It is legally impossible. Perhaps there will be more illegalities. The compromise Eljarh suggests breaks the terms of the LPA.

There is another section 8 that Eljarh does not even discuss that comes into effect immediately upon the vote of confidence in the GNA by the HoR, that is as soon as the term of the GNA begins: 2. Terms of Reference of the Presidency Council of the Council of Ministers: a. Assume the functions of the Supreme Commander of the Libyan army
The GNA has already declared itself alive and up and running without a vote by the HoR. One should think then that even if the GNA somehow managed to “freeze” the article 8 in the additional provisions the article in the main text should now be in force. These are plain and rather simple illegalities perpetrated by the UN and the GNA but somehow they are not considered even by serious analysts.

Eljarh notes the Haftar’s position is that he is head of the army and he does not do politics, and that he will back any government that is approved by the HoR. But arguably Haftar controls the HoR. The PM has twice been prevented by Haftar from flying out of Libya. Note that he still insists that he is head of the army and if both sections 8 are somehow frozen or deleted he will remain in his position. There will be huge conflict within the GNA if and when the GNA names a new commander in chief. Haftar being beyond politics but having plenty of loyal followers with guns may just ignore any appointment as commander in chief that is not himself or someone who has his blessing.

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