Azza Maghur: Five Issues Threaten Transitional Phase, Political Agreement Cannot Disregard Military and Economic Tracks – Al Marsad

Member of the Libyan National Council for Human Rights and one of Libya’s foremost constitutional lawyers, Azza Maghur, penned an important article on the rapid developments in the country and argued that 5 issues seriously threaten the fifth transitional phase in Libya.

(Libya, 4 December 2020) – Azza Maghur’s article, which was published by Al-Wasat News website, touched on Libya’s preparation for the UN-supervised phase as the conflict has reached an unprecedented and dangerous level.

“The political track should have a sense of responsibility because it does not work alone, but in parallel with two other tracks, and that the issue of balance between them is delicate and critical. Add to this the importance of showing its seriousness and the extent of its responsibility, as the political track does not have constitutional legitimacy that would have placed it higher than the other two tracks.” (Azza Maghur)

PREVENTING STATE DISINTEGRATION

Maghur pointed out that political division has weakened Libya’s institutions, harmed citizens, insulted their human dignity, and allowed the conflicting forces to feel strong through foreign countries that directly intervened in Libya. In other words, the coming phase is crucial for laying down rules that prevent the state’s disintegration.

She said preserving the country’s institutions is important by uniting them and bringing them back to the democratic path to regain their legitimacy. The weakest feature of this stage is the absence of institutional legitimacy and the loss of trust between the citizen and the state’s institutions.

The article referred to the geographical and social cohesion evident in Libya’s map, asserting that this cohesion, though relatively weak, has persisted despite all the failures and conflicts and the attempt to politicize and exploit it. Maghur emphasized that restricting the powers of the next transitional phase is of paramount importance.

PRESERVING THE THREE TRACKS

She added that the primary goal of the next transitional phase should be to return to the democratic path, restore the legitimacy of institutions, preserve state institutions, reduce international interference, and most importantly, ensure security and meeting the needs of the Libyan citizen in light of the three tracks that characterize this phase.

She indicated that these tracks emanated from the Berlin outcomes and the attached plan of the United Nations Support Mission to Libya (UNSMIL), which the UN Security Council (UNSC) approved under Resolution No. 2510/ 2020, namely the military-security track, the economic track, and the political track.

She argued that five concerns affect this phase; the first concern relates to the military-security track or the “5+5” Joint Military Committee (JMC), which has made remarkable progress evident in reaching a ceasefire agreement, starting meetings inside Libya, and agreeing to secure oil fields and ports.

She added that this agreement would materialize through the unification and control of the Petroleum Facilities Guard. While the UN envoy, Stephanie Williams, described the military security track as professional, Maghur, in her article, noted that this track relates mainly to the reality on the ground, which is a measure of the success of the military track.

Maghur went on to clarify that the success of the military and security track needs progress in the economic and political tracks; otherwise, it will collapse because the failure of the latter tracks would surely undermine it. The other scenario is that this track manages to succeed and turn against the other tracks—thus a great responsibility falls on the political track in particular.

She said that the political track should have a sense of responsibility because it does not work alone, but in parallel with two other tracks, and that the issue of balance between them is delicate and critical. Add to this the importance of showing its seriousness and the extent of its responsibility, as the political track does not have constitutional legitimacy that would have placed it higher than the other two tracks.

UNSMIL’S POLITICAL TRACK CANNOT WORK IN ISOLATION

She argued that the political track must achieve widespread acceptance derived from its integrity and its serious work. However, the fear remains that the tracks would intersect, conflict, or weaken one another, especially the one among them that might fail. As for the second concern, she stated that the United Nations leads the political track, has chosen its members, and set its agenda.

She added that the political track should be aware of the other two tracks and open up to them because all the tracks are complementary. “The political track must not work in isolation. For the dialogue to be Libyan-Libyan dos not mean that the Libyans should negotiate at the political level only, but also at and in between other levels.”

“At some point, which I hope will be soon, the tracks must converge. I do not see success in a political agreement that does not consider both the military and economic dimensions,” she added, referring to one of the main tasks of the political track which is choosing a Presidential Council and a unified government. This makes it imperative for the political track to realize that the choice is subject to essential criteria.

She said that the issue of selection is sensitive, and if it fails, the political track will lose six million Libyans who hope for a lot from it. Maghur called on the Libyan Political Dialogue Forum (LPDF) to restrict its powers, not overstate them, and find a way out so that its position remains in line with the Libyan legislation, which is a significant issue, by setting specific criteria for assuming posts in future institutions.

She indicated that the most important of these criteria is that the candidate should not be involved in corruption or gross violations of human rights or international humanitarian law. The choice of the figures who will manage or preside over future institutions should not be hasty, and the vetting process must involve contacting the Public Prosecutor’s office

“This is to know whether there are open investigations or serious evidence of involvement in corruption cases, serious human rights violations, war crimes, or crimes against humanity,” noting the importance of communicating with the Security Council Sanctions Committee, the United Nations Human Rights Committee, and the International Criminal Court (ICC).

The second contact, according to the article, should then verify all the information received through the first contact and after these international entities have issued reports based on investigations, facts, and fact-finding committees and have received important documents and evidence in this regard, which is something that the UNSMIL can undertake.

Maqhur went on to emphasize that it would be to the detriment of the UNSMIL and the United Nations in general to establish a government with members involved in such violations. She stressed that the LPDF’s members should not rely on a regional endorsement or recommendation and hold direct hearings with the candidates that are more like confidence granting sessions to the governments to assess them.

TRANSFERRING SOVEREIGN INSTITUTIONS MUST BE SENSITIVELY HANDLED

As for the third concern, Maghur referred to the international trend to transfer state administrations to Sirte, reinforced by the military track agreement that the JMC headquarters be in the Ouagadougou Conference Halls Complex, indicating that this confirms the news reports on the transfer of the headquarters of the Presidential Council, the government, and the sovereign administrations to Sirte.

She added that it is essential if it is so decided not to prejudice the status of the capital because the transfer of the government or administrations must not extend to their status, which the LPDF cannot touch because it is stipulated in Article (1) of the Constitutional Declaration that it is left to an elected authority under relatively stable conditions.

Maghur touched on the sensitivity of transferring institutions at this stage, especially after the recent war and its effects on Tripoli, which will lead to more discord and disagreement, noting the importance of stipulating the transfer of the headquarters of the Presidential Council, the government, and the sovereign administrations as institutions or departments.

She added that the transfer should take place without referring to the term “capital”, even if it were temporary, and not to repeat what happened in Benghazi in 2011 when the National Transitional Council, the Executive Council, and all departments and embassies moved to Tripoli and left Benghazi prey to armed and terrorist groups and systematic assassinations.

She emphasized that this would recur in Tripoli in case of the lack of a security plan for it and dismantling the armed therein according to Article (12) of the Berlin outcomes. “The absence of state institutions that are protecting Tripoli by virtue of their presence there will allow these groups to come forward and control the capital.”

TOO MANY AGENCIES AND INSTITUTIONS

Maghur talked about the necessity of not transferring institutions except in the event of a comprehensive security plan. In this way, both the military-security and political tracks would meet to forge an agreement to secure the capital. She then touched upon the fourth concern which is the multiplicity of agencies in a relatively short transitional period in the absence of information and a next plan.

She also dealt with the issue of superfluous institutions during the next stages if the LPDF turns into an institution and the continuation of the existing institutions, namely the House of Representatives (HoR) and the High Council of State. She indicated that this superfluity is due to the presence of the Presidential Council, the HoR and the State Council, the National Unity Government, the LPDF, and the JMC.

Maghur said that the practice should be to reduce the number of institutions during the transitional stages, but in Libyan case we have seen an increase in the number of new institutions, which have conflicted, competed, disintegrated, and lacked coordination. This was evident in the behaviour of the heads of the three councils as presidents throughout the previous phase, which makes it imperative not to repeat this in the future and to control it.

CONSTITUTIONAL DECLARATION MUST BE RESPECTED

Concerning the fifth concern, Maghur said that the constitutional issue is important and underestimating it in the Skhirat Agreement undermined and weakened state institutions. This resulted in new weak institutions that clung to UNSC resolutions that granted the Presidential Council international rather than national recognition based on the Constitutional Declaration and relevant national legislation.

She added that this difficult stage weakened the constitutional path and caused conflicting judicial rulings, which necessitates using Libyan legal expertise to find a way out of this dilemma and bring together the national and international tracks instead of this inconsistency and contradiction that the previous phase has witnessed.

Azza Maqhur concluded her article by stressing the need for all LPDF outcomes to have a constitutional basis, follow constitutional procedures, and be part of national legislation. She emphasized that these five concerns would remain as long as there is no sufficient information and would never disappear unless transparent details about the three tracks become available and only if the related parties dispel such concerns.

© AlMarsad English (2020)