On 6 November, the Libyan Supreme Court ruled that the parliamentary elections that took place this summer were illegitimate, making an already chaotic situation much worse. This took the international community by surprise, as everyone was only expecting a ruling on the location of parliament – that it either be moved to Benghazi or stay in Tobruk.
The ruling nullified the amendment to Article 11 of paragraph 30 of the Constitutional Declaration which set out the road map for Libya’s transition last spring and allowed for the holding of parliamentary elections on 25 June this year, with broad support from international stakeholders and the United Nations. In fact, the House of Representatives elected that day and the government of Abduallah al-Thinni that its members appointed are the only internationally recognised Libyan institutions to date. The armed groups that overran Tripoli this summer, however, forced them to flee to Tobruk. Meanwhile, the new powers in Tripoli reinstated the General National Congress (GNC), whose members elected a competing prime minister, Omar al-Hasi. Yet, no country has recognised his government, and some of Libya’s main institutions, including the Supreme Court, are still based in Tripoli.
By nullifying the road map that included the elections, Libya’s Supreme Court eliminated the domestic legal basis for the existence of the House of Representatives, thus placing the US and Europeans international community in a conundrum: either they reject the verdict as being issued under pressure from the militias now controlling Tripoli while also restating their recognition of the House of Representatives along with Al-Thinni’s government; or they accept the verdict but this eliminated the parliament now sitting in Tobruk without clearly reinstating the GNC sitting in Tripoli.
In a joint statement, the United States, Canada, and six European Union member states said that they are “studying carefully the decision of the Supreme Court, its context and consequences” and emphasised the need to support the UN mediation in order to reach a political compromise. In a different statement, Egypt underscored its “full respect for the will of the people as reflected in the recent elections held in Libya”, politely indicating its rejection of the verdict.
Europeans should not get bogged down in a discussion over the legality of the verdict nor does it make much sense to further focus on who the legitimate government in such a divided country is. Until now, the House of Representatives and the Al-Thinni government sitting in Tobruk and Baida have proven unable to either rule the country or to provide a consensual solution. An outcome of the verdict could well be facto partition of the country in which western Libya would be ruled by the government in Tripoli (which now claims legitimacy based on the Supreme Court ruling), and eastern Libya would gradually see the building of parallel institutions under the government in Tobruk.
Yet, despite last week’s ruling, the priorities for Europeans remain the same: a political dialogue with broad support from different Libyan actors that allows for the creation of a national unity government; a ceasefire; the preservation of the neutrality of key Libyan institutions; and a return to Libya’s transition. The means to achieve these goals in the current context obviously change in light of the verdict. In this respect, Europeans could start to focus on four baskets to support UN mediation efforts led by Special Envoy Bernardino Leon:
1. A new format for the political track, as Leon hinted in an interview with El Pais. Europeans could even host a meeting of “good willing Libyan lawmakers” which could proceed by consensus to rewrite a new road map, select a national unity government, and, in the meantime, eventually act as a transitional body with international recognition. Snap elections or a hastened approval of the new constitution could be dangerous accelerators of violence as past experience in Libya and beyond has demonstrated. Achieving inclusivity and effective governance should instead be the priority.
2. In his interview with El Pais, Leon stated that preserving the neutrality of some Libyan institutions is a “red line” for him. He mentioned explicitly the National Oil Corporation, the Central Bank, and the sovereign wealth fund. UN resolution 2146 only authorised international purchases of oil from the legitimate Libyan government. Oil revenues now accrue to the three above-mentioned institutions and, absent a legitimate government, it is crucial that they remain independent. It should be explored whether, without those guarantees, payments could be made with international oversight. The funds would become fully available to Libyan authorities when a national unity government is formed – in the meantime, of course, salaries and subsidies should still be paid in order not to further provoke the collapse of the Libyan state. The Constitutional Drafting Assembly should also be added to the institutions whose neutrality should be preserved.
3. Measures can be taken to avoid de facto partition, first of all by denying any legitimacy and interaction with the outside world to parallel institutions created either in the West or in the East.
4. Along with the political track, it is necessary to implement as many local ceasefires as possible and to provide, where credible, international guarantees. The existence of a political track would offer a more positive picture but it won’t be enough to pacify the country, nor can it be expected from political representatives to “carry” a ceasefire of the militias, including what is known as the Libyan Army. Any form of international peacekeeping operation should be made conditional on the existence of a national unity government.
Europeans have several opportunities to start working on these positions, in upcoming meetings and venues where they can be discussed further. The Foreign Affairs Council will meet twice in November, and it could start laying the groundwork. Also, Spain is expected to convene an international conference on Libya shortly.
This article is the author’s elaboration of a discussion that took place as part of ECFR’s Libya Working Group held in Rome on 6 November.
The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of its individual authors.