Mohamed Eljarh on the Presidential Council in Tripoli Libya

A recent article by Mohamed Eljarh, non-resident fellow at the Atlantic Council, summarizes what has happened since most members of the Presidential Council (PC) of the UN-brokered Government of National Accord(GNA) arrived at a naval base in Tripoli.

Ejarh notes that the PC has managed to consolidate its position by getting support from key institutions such as the Central Bank and the National Oil Corporation. He points out that the PC will be expected to deal with problems such as the cash crisis. However, he notes control of these key institutions gives the PC huge advantages over its competitors. The advantages are that it can cut off funds and oil revenues from the GNC — and perhaps the HoR as well — if the head of the oil guards, Ibraihim Jahdran, who supports the GNA, is able to open the oil ports. The PC also gained the support of many municipal authorities. Eljarh says it is important that the international community delivers on its promises to help in order to strengthen the PC. Eljarh clearly favors the GNA and applauds efforts to help it succeed. He worries that a wrong move might lead to instability.

He notes that the PM of the Tripoli-based government still has not relinquished power and the president of the GNC Abusahmain also refuses to recognize the legitimacy of the GNC. Next Eljarh gives a very uncritical account of the meeting in Tripoli at which the new State Council was established:The pro-GNA bloc of the GNC (known as the Wefaq bloc) which is made up of around 73 members met in Tripoli on April 5 to announce the dissolution of the legislative body and the establishment of the new State Council—the highest consultative institution according to the LPA.He does note that "many legal arguments surround the circumstances of the State Council's meeting" but does not bother to tell us what they might be. His account of what the meeting did also omits much of what happened. As a bit of background I quote from the Libya Politlical Agreement (LPA) about the Council:The State Council shall comprise one hundred and forty five (145) members who were elected during the General National Congress elections on 7 July 2012 as per the following:1. One hundred and thirty four (134) male and female members of the General National Congress who enjoy sound membership at the signing this Agreement. The Presidency of the General National Congress shall submit a list containing the names of those members.

Note that there were actually half or less of the Council at the meeting. The members were supposed to be from a list submitted by the president of the GNC. Of course he does not recognize the GNA and so did not submit a list. The UN decided this was no problem they simply had Saleh Al-Makzhoum who was expelled from the GNC make up a list and then the UN and PC accepted it. Makzhoum presided at the Tripoli hotel meeting. As described in a recent article the meeting did several important things: The session, which was described also by the attendants as “the final session of the GNC, was put to effect by the second Deputy Speaker of the GNC, Saleh Al-Makhzoum, in which all of the attendants voted unanimously on amending the constitutional declaration and including the political agreement.Eljarh fails to mention that the GNC amended the constitutional declaration as well as approving the LPA and then dissolving itself.

Clearly one of those pesky legal problems is that the group was not the GNC and hence could not dissolve itself. Even worse, the GNC is not the internationally recognized legislature so it could not possibly amend the constitutional amendment. The only way this can make sense is if you accept the Libyan Supreme Constitutional Court decision of November 2014 that the the HoR was unconstitutional and should be dissolved, leaving the GNC as the sole legitimate government. It could the play the role of the HoR as in the LPA and do the amendment. I explain this in a recent article. An actual meeting of the GNC at their headquarters called the hotel meeting illegal and was to send the issue to the judiciary. However, the GNC needs militia not judges.

Eljarh notes that the question of the GNA's legitimacy is an obstacle to progress. However, this seems to be not so. The GNA declared itself up and running without a vote of confidence from the HoR. It used the letter signed by an alleged majority of the HoR supporting the GNA and a meeting with the political dialogue as a green light to go ahead and move to Tripoli. It is gathering support and gaining control without any HoR vote. The GNA needs to vote to placate Haftar and the HoR and bring them on board and also to serve as the legislature of the GNA.

Eljarh remarks: An important part of the debate within the Tobruk House of Representatives is the question of the Libyan National Army (LNA) and its General Commander Khalifa Haftar; finding an acceptable settlement on this issue will prove difficult and all parties involved will have to make difficult compromises.

As his first point in a guide for policymakers as Libya continues with the implementation with the LPA, Eljarh says:Implementation of the LPA: any legally or constitutionally controversial moves must be avoided, as such moves would open the door for legal challenges in the future that would destabilize the political transition. Legally or constitutionally questionable moves must not be condoned or welcomed by any of the parties involved, either Libyan or international.However, all along when the UN or GNA have a difficulty they get around it only by violating the LPA. The meeting of the State Council is a recent example. Ignoring section 8 of the LPA is another example. But that is just the tip of the iceberg. I discuss a few examples of violations here There have been numerous violations but the GNA still has the support of the UN Security Council and the international community. If the UN cannot find a solution that does not violate the LPA it will certainly violate the LPA again.