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The following is a guest post by Alexander Decina, research associate for Middle Eastern Studies at the Council on Foreign Relations.
For more than two years, the UN-backed Government of National Accord (GNA) has sat in Tripoli, making little if any progress toward resolving Libya’s political crisis and ongoing conflict. On May 29, however, amid stagnant UN efforts, French President Emmanuel Macron convened a summit in Paris with the leaders of rival Libyan factions, and the parties agreed, in principle, to presidential and parliamentary elections by December 10.
Macron, and anyone else frustrated with Libya’s lack of progress, may want to view the Paris agreement as a step forward, but they should not celebrate too soon. At best, and most likely, the December elections will fall through, and international efforts to resolve the Libyan crisis will lose further credibility. At worst, Libyans and their backers will force elections in far too short a timeframe, resulting in considerable violence and perhaps a full-scale resumption of the country’s civil war.
Should this happen, the problems Libya’s conflict poses to its neighbors and to Europe—namely the migrant crisis and radical transnational groups operating in the country’s ungoverned space—will not only intensify; they may indeed become permanent. With these risks in mind, Libyans and the UN should not rush to premature elections that will do more harm than good. Instead, efforts to forge genuine progress in Libya should focus on creating a durable constitution and balanced election laws before Libyans go to the polls.
The UN has been trying since fall 2014 to resolve Libya’s political impasse and resulting violent internal conflict. Though the UN’s efforts were not without controversy, they convinced the two rival governments—the Tobruk-based House of Representatives (HoR) and the Tripoli-based General National Congress (GNC)—to sign the Libya Political Agreement (LPA) in December 2015. The agreement was to form an interim Presidency Council and underneath it a GNA unity government to consolidate the rival parliaments. The HoR, however, refused to adopt the LPA it had signed and fold into the new government for fear it would diminish the standing of its main military ally, Field Marshal Khalifa Haftar. Thus, the so-called unity government has foundered.
In September 2017, the new UN Special Representative, Ghassan Salamé, announced an “Action Plan” to create some momentum. The plan urged Libya’s rival factions to amend and implement the LPA in order to finally legitimize the struggling GNA and unify rival factions, to pass the constitution by popular referendum, and, finally, to reach election laws to structure voting for presidential and parliamentary elections.
Nine months later, the Action Plan has produced little progress. And so when Macron’s summit set deadlines—new election laws by September 16 and presidential and parliamentary elections by December 10, 2018—many welcomed it as an action-forcing mechanism to pressure Libyans into compromises. Necessary as additional pressure might be, the Paris timeframe does not provide sufficient time to implement crucial steps of the Action Plan.
SKIPPING OVER THE LPA WOULD BE BAD
Indeed, Libyans seem to have abandoned the amendment and full implementation of the 2015 LPA. If international efforts had been better consolidated, perhaps Libyans could have made more progress on this important step. Using the LPA to unify rival factions under the GNA would have made for a more productive transitional period and a more conducive environment for successful elections.
Nonetheless, at this stage, Libyans, their international backers, and even the UN are hoping that holding new elections can paper over the failures of the LPA and the unity government by establishing a newly elected president and parliament. Whether the new government—should it come to fruition—can replace Libya’s existing parliaments as intended or simply creates a new rival body remains an open question.
Despite it not being ratified and implemented, the UN and Libyans alike are using the LPA as the basis for procedures going forward—namely for legitimating the HoR’s role in the constitutional process and for setting the mechanism by which to come to electoral laws. Rival factions will have cause and justification in contesting elections and other state building measures that are based on the unimplemented LPA.
SKIPPING THE CONSTITUTION AND RUSHING ELECTION LAWS WOULD BE WORSE
While sidestepping the full implementation of the LPA brings with it real risks, skipping over the constitution and rushing election laws would be an even more serious mistake. Both a constitution and balanced election laws are essential to holding elections that advance, rather than undermine, forward progress. And yet it seems the plan reached in Paris will attempt to bypass or rush these crucial steps.
The Paris Agreement stipulated that elections should be held on a “constitutional basis,” but it remains highly ambiguous as to what this language refers to—or even what it could refer to—and what the legal basis will be for December elections. The Constitutional Drafting Assembly did reach a draft constitution in July 2017 that provided guidance for presidential and parliamentary elections. A reluctant HoR was intended to approve the document by organizing a popular referendum on it that would need to pass a two-thirds popular vote. But eastern factions have stopped the constitution from going further by violent, political, and judicial means. Attendant Libyan parties in Paris made no commitments to pass this draft nor compose a new one before elections, and, considering the lack of pressure on obstinate factions, progress is highly unlikely in such a short timeframe.
If the July 2017 draft cannot be used, will the elections be based on the 2011 Interim Constitutional Declaration? This document, established in the immediate aftermath of the late Muammar al-Qaddafi’s fall by a short-lived transitional government, did not provide any guidance for presidential mandates and powers and offers poor guidance on the length of parliamentary mandates. If the 2011 Interim Constitutional Declaration needs to be amended to set these parameters, it is unclear what the process for amending it will be given that Libya’s legislature remains divided.
Holding elections without a constitution in place—or with a sloppily conceived “constitutional basis”—will leave powers, mandates, and term limits undefined or poorly defined, and competitions for power will be more fierce and violence more likely.
If rival factions cannot agree on a constitution, it is unlikely that they will draft and agree on on balanced election laws. According to the LPA, new election laws must be drafted by a joint committee of the HoR and the HCS and then approved by the entire HoR. Each side will try to draft laws that are electorally advantageous to it, and without a constitution defining the parameters of power, the stakes will be even higher. If external players like France increase pressure or incentives for committee members to push through election laws that will not be amenable to their wider parliamentary bodies or their allied militias, then elections will be highly contentious. Given the precedent for electoral violence in Libya, those that stand to lose will be inclined to use violence to mitigate the results or prevent elections outright.
WHAT LIBYA AND ITS INTERNATIONAL SUPPORTERS SHOULD DO
Elections are certainly a necessary step for Libya. The mandates of each of Libya’s rival governments have expired or were never fully enacted, and no entity has enough credibility to gain the support of requisite militias to control the country. Without electoral or domestic legitimacy, the international community will continue struggling to consolidate support for any Libyan government. Fresh elections are needed to produce a new political body that external powers can rally around, but, at the same time, they are a risky endeavor and could provoke more violence. The very conflict the UN is currently trying to resolve was sparked by the results of a contentious election in 2014, and wider conflict could still emerge. Holding elections too early greatly exacerbates these risks.
Thus, the push for elections should be accompanied by far greater international cooperation to pressure competing Libyan factions to reach agreement on a constitution before elections, not after. Outside actors should also press for genuine compromise on the election laws between Libya’s most powerful factions to avoid giving these factions cause and pretext to violently disrupt the elections. If the compromises needed to implement these steps—formal and informal—cannot be reached before elections, the notion that elections themselves will solve these problems is far-fetched.
President Macron and others may want to champion the May 29 election agreement reached at the Paris summit as a step forward. With UN efforts bringing about so little progress, their desire to push for a nationwide vote in Libya before the end of the year is understandable. But if they press Libyans to hold elections without a durable constitution and balanced election laws in place, it could be a major step back, and Libya could again descend into widespread conflict as a result. The consequences will be felt in Libya, the region, and beyond.