Since the fall of Gaddafi’s forty-two years of rule, Libya has been facing tremendous challenges of instability and insecurity reflecting and characterized by both a political impasse and a lack of legitimate state institutions. Ad-hoc and non-state formations grew outside the legitimate state boundary and became the real actors, polarizing politics and society while rendering any political dialogue ineffective, especially when confined to exclusionary power-sharing arrangements. Official bodies remain weak and divided, while peripheral actors reject/resist submitting to its authority. While acknowledging that the current Libyan crisis is the product of the interaction of several factors including the Islamists and non-Islamist contestation, regional and tribal dimensions, and foreign interventions, this paper concentrates on the effects of the state approach of the Gaddafi era as well as the failure to adopt and implement reconciliation post the 2011 conflict. Therefore, it is argued that the first step towards realizing peace, security, and development is a departure from the current approach and the necessity of bringing in the real players to agree on a roadmap to reclaim the state by launching state-building processes that have national reconciliation as an essential component at their core. State-building cannot be purely a technical exercise of defining, designing, building, or reforming public institutions, while ignoring reconciliation. No matter how successful such technical state-building processes may be, some parts of the population will remain excluded and major segments of the population are likely to remain highly mistrustful of the (new) state and its institutions. Therefore, addressing this gap is central to a transformative approach to state-building that includes reconciliation in which dealing with the Gaddafi legacy is central to preventing future conflict relapse.
The Post-Gaddafi Context
In the post-Gaddafi era, the inherent weakness of civic and democratic culture, as well as the increasing influence of the peripheries at the expense of the center, interacted with the politicization of public administration, exclusion, and mistrust to produce crisis and conflict. All these factors participated in a process that led to ending the actual, sometimes symbolic, existence of the state and its institutions. During the uprising, there were early indications that some actors and trends would refuse reforming or rebuilding military and security institutions. There were loud voices advocating and legitimizing human rights violations and abuses on the pretext of fighting ex-regime elements, through the imposition of lustration and the exclusion of all middle and high-ranking state cadres, on the grounds that they were elements of the former regime. This should have been an early warning that the democratic transition, or at least its formal level, would deviate from its intended course and that it would not achieve any satisfactory result.
The absence of the state and its institutions, consolidated by the increase in the number of armed militias that hijacked institutions and harnessed them for partisan or tribal and regional interests, led to the creation of more motivation for the conflict. Many new arrangements and institutions were established to serve existing actors, or to respond to the interests and demands of particular agendas. At the same time, institutions have become both a tool and a manifestation of conflict, deepening division and thus entrenching the conflict rather than reconciling the needs and demands of the parties with those necessary for state-building. Rushing to an early electoral process in 2012 before the realization of an agreement on a unified vision for the desired state caused more social polarization both horizontally and vertically. This, in addition to the neglect of the requirements of effective and successful conflict resolution, meant that economic recovery and state-building became remote possibilities (African Capacity Building Foundation (ACBF) 2004, 4).
Post-2011 leaders, in particular, failed to play a positive role in leading the country to become a modern state. On 17 December 2015, Libyans signed the Libyan Political Agreement (LPA—also known as the Skheerat Agreement), sponsored by the United Nations Support Mission to Libya (UNSMIL) (2015). Accordingly, Libya now has an internationally recognized Government of National Accord (GNA), as well as the elected House of Representatives (HoR), and a Higher Council of State (HCS) (essentially a revival which includes most members of the defunct 2012 Islamist-dominated General National Congress (Parliament, elected in 2012), while other members are still active and competing for power, resources, and legitimacy under the banner of the defunct congress). However, none of these actually represents the whole nation, and in the struggle, before and resulting from the LPA, lies the apparent failure to resolve the conflict and achieve the desired peace which would contribute to the needs of state-building.
The LPA has not been able to tackle division and conflict since it lacks a clear consensus on important issues, and ironically, the GNA has not even been able to avoid its internal division. Power-sharing arrangements of the LPA have not achieved what was desired. Developments have so far only confirmed the inability of the bodies, resulting from the Skheerat Agreement, to unite, gain legitimacy, work together, and have the ability to act in a coherent and uniform manner. They have only proven handicapped and led the country to more division, chaos, and civil war, witnessing its bloodiest phase since General Haftar, leading the Libyan National Army, began an offensive to capture Tripoli on 4 April 2019.
The GNA has been exploiting the support it received from the United Nations (UN), relying on external legitimacy, but with an apparent failure to be truly representative. The GNA in Tripoli and its competitor in Bayda have constructed facade bodies and organizations. This is similar to what took place in Somalia when the regime sought to embed external interventions through a technique to copycat organizations associated with the Weberian state while, in reality, such organizations were used to channel funds to elites. While foreign intervention intensifies, both sides and other actors seek to increase the profile of local actors through projects that declare the objective of local capacity-building. As the Somali experience indicates, such steps and interventions were only an extra burden and did not lead to the desired objectives (Clausen 2016, 301–02).
Nevertheless, the struggling parties within this dimension of the conflict cannot be accurately counted because what has happened since 2011, in general, and since 2014, in particular, has been more divisions and consequent conflicts. The situations and positions of various factions have changed in a way that makes mapping them rather difficult to realize. If the 2011 conflict produced two clear parties (winners and losers, otherwise known as the September and February camps), what happened after the 2013–14 elections generated new levels of conflict and led to divisions within these two main camps (September and February), giving birth to multi-trend and multi-interest conflict levels that have not been isolated and often reflect the competition of foreign actors.
According to experts, what is needed is not only the involvement of more actors that have hitherto been excluded but also to ensure their right of participation in an inclusive deal. An indispensable starting point would be an economic agreement on how to distribute resources associated with an inclusive peace agreement. Unless these shortcomings and challenges are remedied, any deal would remain an elitist approach that ignores the real stakeholders, including the individual citizen, the family (the Libyan social unit), and local governance (local communities), therefore leading to no “real deal” from a broader societal perspective (Jehani 2017, 9).
State-Building: Obstacles and Policy Framework
In its wider sense, state-building (the construction of a functioning state) is a policy response to conditions in which fragile states suffer the multiple deficiencies of weak or non-existent institutions and governance system. State-building has become the central objective in responding to fragility and post-conflict needs. This is seen possible through conceptualizing and rebuilding the state and its institutions within the broader context of the relationship between state and society, therefore making an inclusive process that moves states from conflict-driven fragility to resilience and statehood. The most important task is the determination of how the state is built and how power and authority are employed to achieve core objectives while establishing clear-cut guidelines and rules for interacting with society (United Nations Development Programme (UNDP) 2015, 5–6). The state-building approach underlines the centrality of establishing effective institutions to perform sovereign functions and execute public policies.1
Both countries and societies “need institutions that strengthen organizations and promote good governance […] institutions that are internally consistent have the lowest risk of a breakdown because such institutions are self-reinforcing. For post-conflict societies, this means a wide distribution of power and no permanent exclusion of actors from the political system” (ACBF 2004, 4).
Libya confronts a lengthy and multipronged transition and the “aspects of this transition are closely interrelated and reinforce each other. Violence must give way to public security. Lawlessness, political exclusion, and violations of human rights must give way to the rule of law, inclusive and participatory government and respect for human rights. Polarization among different groups must give way to national reconciliation” (El-Katiri 2012, 24–25). Obviously, the failure in these areas has put the whole process at risk as the current situation indicates.
One sad consequence of the Libyan electoral process implemented before a unified vision of the state was agreed upon has been the polarization of society both horizontally and vertically. Moreover, a successful recipe for effective post-conflict situations and crisis rests upon a combination of economic recovery and state-building (ACBF 2004, 4). Libya specialist Hanspeter Mattes rightly concludes that since the fall of the Qaddafi regime, the central challenge has been neither the “civilianization” of a repressive authoritarian state in which the security forces play a core regime-saving function, nor the need for classic security sector reform to strengthen accountability, civilian control, and transparency. Instead, the challenge is, or should be, threefold: the rebuilding of state structures; the launch of a nation-building process to overcome regional disparities and ethnic-religious conflicts; and the restoration of the state monopoly on violence, which can only be achieved through the demobilization of the brigades (Mattes 2014).
Gaddafi’s Legacy: A Driver or Handicap to Reconciliation?
The policies that Gaddafi adopted rested upon an abject contempt for the culture of institutionalism, rule of law, and sense of community. He undertook to crush all political and civil organizations. In addition to promoting a culture of dependency on the state, the rentier economy arguably engendered contempt for work and effort as social values in a culture sustained by kinship, political patronage, and clientelism.2 The bitter experience of the Gaddafi era led to an obvious lack of interest in institutional aspects, and to the emergence of a populist culture and personality cult that despises institutions and undermines the notion of public good. Gaddafi’s contempt for representative democracy, political parties, a free press, trade unions, and civil society has contributed to furthering their weakness and abuse during the transition (Sawani and Pack 2013, 523–43). As presciently noted by Lisa Anderson, “the legacy of the Gaddafi era in the political realm will be a contradictory one […] the […] regime is in many respects a repressive and manipulative one. Many of its policies are purposely or inadvertently designed to atomize the population and discourage independent organization in civil society […] this has had the, somewhat ironic result of enhancing the role of kinship ties in political organization” (Anderson 1986, 228–29).
The ongoing conflict and foreign interference have negatively affected the social fabric and moral values, leading to the disruption of the nascent culture of political community and public good. This has created enormous challenges that hinder social reconciliation without which success in democratization and the building of both society and the state, may not be possible (United Nations Secretary General 2011; Pack and Barfi 2012, 40). Although most of the literature attributes this to Gaddafi and his unique political approach, this attribution ignores some important aspects. Gaddafism may not be confined to the Jamahiriya culture or to repression, since it transcends them in areas that are not the artefact of the regime but based in Libyan economic and social history.
Ali Abdullatif Ahmida reminds us that the regime or state that resulted from the “military revolution” led by Gaddafi after 1969 was not a perversion, but rooted in Libyan history and culture. He explains that what Gaddafi brought to bear on Libya was not the sole product of his “culture of non-statehood,” but was also the product of culture, history and the social structure of the country represented by the painful legacy of the colonial state (1911–43). This was again brought to the fore by the weakening of the federal state during the Sanusi monarchy (1951–69) and the established identities and ideologies (Abdullatif Ahmida 2012, 1–2).
George Joffé provides a similar view, analyzing examples of the persistence of an indigenous political culture and its absorption of the lessons, both good and bad, offered by the colonial experience in the Maghrib region. According to Joffé, Gaddafi’s revolution and his state model, Jamahiriya, was a reassertion of a pre-colonial political culture. The state that Gaddafi built, and his own vision of a new political order, was based upon, or rather exploited, an intellectual vision derived from his own transhumant background that included both tribal identity and Islamic paradigms which are still active in the post-Gaddafi era (Joffé 2015).
Mattes relates this to the fact that “the nation building process, initiated with Libya’s independence in December 1951, was never completed. The antagonistic forces within Libyan society, which were kept in check for over sixty years under the Sanusi monarchy and under Qaddafi, have sharpened since 2011 and have contributed to the current political crisis” (Mattes 2014, n.p.). The uprising was launched mainly away from the center and carried out on the peripheries. It was an occasion in which the conflicting forces within Libyan society, which had remained under the control of the monarchy regime and the leadership of Gaddafi for more than sixty years, returned to emerge and, hence, contributed to the current political crisis.
The legacy of Gaddafi is today the subject of a thorny debate between various forces, but it relates specifically to the so-called Gaddafi supporters or loyalists, on the one hand (the September camp), in the face of a heterogeneous mix of forces and trends (the February camp), on the other. While unanimous on the dictatorship and authoritarianism of the regime, the latter does not agree on the fate of this legacy. Gaddafi’s allies or supporters are not homogeneous either, but divided over this legacy and its rehabilitation as a historic phase of Libya that should not be ignored when rebuilding or establishing a new state.
Not only do loyalists have their differences and disagreements but also they are involved in a contestation that reflects each faction’s attempt to obtain popular legitimacy from their own September constituency. It also reflects their desire and effort to get the widest possible popular support. Their divisions are ever widening because of personal rivalries, greed and disagreement on political and financial issues. Some ex-regime figures have almost abandoned their affiliation with the ex-regime constituency, seeking, instead, to establish popularity on a new mandate based on reconciliation and constitutional process. The contestation and debate are ripe with exchanges of accusations of treason, betrayal, opportunism, and appeasement of militias. Some accuse those who work towards reconciliation and cooperation with the GNA of becoming agents and traitors to the homeland when they work with February political and social leaders.
However, it is not expected that any Gaddafist would accept writing off some constructive role for the legacy of Gaddafi in building Libya, despite his authoritarian repressive regime and the injustices (mistakes!) it committed. Gaddafists generally show a clear tendency for reconciliation, as their statements demonstrate. This has been frequently confirmed by their participation in dialogues sponsored by UNSMIL or other countries or during direct dialogues with other Libyan parties, including Islamists, who they now describe as partners for the homeland. Most of them are eager to reconcile, but insist on a general pardon for everyone (including those who committed post-Gaddafi wrongdoings), the release of all prisoners, the cessation of all hostilities, and the return of private property. They call for a peace deal that should lead to a new national road map that abandons both the September Revolution (Gaddafi) and the February Revolution and to stick to the only constant, which is Libya and its unity. When transitional justice is brought up, they advocate that any accusations should be deferred until the judiciary is reactivated. However, there remain, of course, radical elements who speak the same Gaddafi revolutionary rhetoric, rejecting the uprising as an imperialist and reactionary design and expressing a hope for its demise and the return of their Jamahiriya, while refusing to engage in any political process. They want to take revenge and they are seen behind some of the ongoing conflict, which they are eager to fuel endlessly, but they are a minority.
The debate over Gaddafi’s legacy will probably continue over the next decade and beyond, but its fate and role depends on the speed and manner with which it is dealt at the political and legal levels. There is no doubt that integrating the rainbow of Gaddafists and their various elements into a comprehensive inclusive reconciliation and assigning them a role in the administration of the country can be the most effective approach, but it will remain limited, fragile, and subject to expediency, in addition to the politics of the moment or opportunism. Unless this is attempted through appropriate legislative and legal frameworks that address the legacy of the ex-regime, badly needed reconciliation, restorative transitional justice, amnesty, and reparation will remain elusive.
Generally, the population is now more receptive to accepting the appointment of ex-Gaddafi officials in a government based on appropriate vetting. This is particularly true in eastern and southern Libya, but to a lesser degree in the western part of the country, as the GNA appointments reveal. According to observers and comments on popular social media outlets, all ex-regime elements who have suitable expertise and are not implicated in any violations or corruption should be reinstalled, allowing the country to benefit from their capabilities. A careful examination of Libyan social media content reveals that Libyans are now eager to see them back, and there are increasing calls for a general pardon for all Gaddafi-era officials. This comes as people compare their record with the atrocities, crimes, violations, and corruption practiced in the post-Gaddafi era, especially by the so-called Thuwar (revolutionaries) and leaders of the previous anti-Gaddafi opposition.
One important lesson from the international experience underlines that national solutions inspired by traditional practices are less likely to succeed if they are void of detailed policies to enhance community cohesion and reconciliation, and are not allocated adequate resources for national programs (Wall 2016, 8–9). In post-2011 Libya, many organizations, plans, and legislations were adopted for the purpose of realizing reconciliation. However, these have had no real impact or realized any actual achievements. These initiatives were lacking in both design and resources.
Based on the lessons drawn from international case studies and best practices, in order for national reconciliation in Libya to be effective and positively impact governance and institutions to build sustained peace, some important practical considerations have to be met when determining any reconciliation strategy. Priority amongst these must be awarded to the need for any strategy and program to undergo adequate preparation. This should include assessing conflicting interests and fears, designing a roadmap, establishing required supportive structures, ensuring buy-in from major actors, and a media communication plan to launch a national dialogue. Stakeholders, including women and the youth, should have a role to play in designing the reconciliation process and its structure and mechanism. This is vital and opens great opportunities for success.
However, reconciliation, peace, and stability in Libya face many obstacles, especially at the legislative and legal level. Identifying the obstacles to achieving the goal of nation-building is a priority that must be translated into a comprehensive peace and reconciliation agreement. The most important obstacle to reconciliation, the division of Libyans into the victorious and defeated or winners and losers after 2011, has not been subject to a serious discussion in an attempt to overcome it. The constitution-making process that was attempted in post-2011 Libya reflected competing claims and interests, while the central authority was weak and becoming increasingly weaker and divided. Consequently, the 2017 contested draft constitution, accomplished by the majority of members of the Constitutional Drafting Authority (CDA), has not received the approval of the HoR, which has abstained from referring it for referendum.3
Worse still, the CDA became an arena for generating conflict and, despite the involvement of UNSMIL, was only able to produce a controversial draft with the boycott of members from the west and cultural and ethnic groups. This increased the likelihood of disagreement. It is, therefore, worrying why the constitutional process in Libya was attempted in a speedy manner and against what the emerging literature on constitution-making warns against in terms of quick fixes in a post-conflict situation. The Libyan constitutional process went against the lessons from international experience that recommend the postponement of writing a permanent constitution and the adoption of transitory arrangements that could perform the functions of a consensual “modus vivendi, a sense of collective belonging and political cohesion, before rushing into constitutional settlement” (Van Lier 2018, 19). This draft remains and reflects the outcome of a conflictual constitutional drafting process, rendering it practically just another expression of the ongoing conflict since 2011. Moreover, it even increases the intensity of the crisis, especially in that the members of the CDA are divided about it, while minorities and cultural groups, sectors of the population described as supporters of the former regime, advocates of the return of the monarchy, and the supporters of federalism, are unanimous in rejecting it.
The gap of mistrust between Libyans and their division for a variety of reasons, including the post-2011 struggle and its repercussions, has grown wider. Therefore, any attempt to resolve the conflict and rebuild the state and its domain must start with an inclusive and comprehensive national dialogue without the exclusion of any party. Therefore, participation is part of the more important goal of linking this process to constitutional matters and state structures. The participation of stakeholders is a success factor in this regard and necessary to ensure implementation of what is agreed upon (Kaplan and Freeman 2015, 32). Consolidating peace after conflict and embarking on development may only succeed if a robust state-building and a coherent institutional framework are realized and obtain wider societal and stakeholder engagement and support (ACBF 2004, 4).
Existing laws suffer from a blindness and disability and are inappropriate for overcoming the dispute, and must be reviewed. This is particularly relevant as far as the Political and Administrative Isolation Law, the Law Criminalizing the Glorification of the Tyrant (Gaddafi), and the Compensation Law that financially and legally discriminates between categories of Libyans. It also touches upon other laws and executive orders passed after 2011, especially by the Islamist-dominated GNC, such as the so-called Standards of Integrity and Patriotism, measures designed for the compulsion and coercion of employees, officers, and soldiers to resign, retire, or be deprived of their salaries and employment via unjust procedures. Therefore, it is imperative that the necessary arrangements be put in place to end the legislative chaos, especially and particularly with regard to the laws passed by the GNC and still effective in the western parts of the country, but nullified by the HoR in the east, resulting in legislative confusion, the incapacitation of the judiciary, and the consolidation of the division and the fragility of many reconciliation initiatives.
Although the most important document, the Interim National Constitutional Declaration issued by the National Transitional Council, did not include any reference to national reconciliation or transitional justice, numerous laws related to national reconciliation have been adopted since 2011. Currently, Libya has more than twenty laws, with prominence accorded to the National Reconciliation and Transitional Justice Act No. 29 issued on 2 December 2013. The multiplicity of laws, bodies, or entities can only be an indication of the utter failure in realizing reconciliation. On the contrary, the transitional authorities have, instead, enacted laws and made procedures to impede reconciliation, inflamed conflict and division, tolerated human rights violations, and accommodated impunity since 2011.
Law No. 29 failed to address reconciliation and its various aspects. In addition to not covering crimes committed after 2011, the law establishes the complete opposite, as it has enshrined dividing Libyans rather than conciliating and unifying them. The law is fundamentally based on sanctifying the “February 17 Revolution” and making it the raison d’être for any party, case, or act and the determination of their legal status. While it prohibits and criminalizes what happened in the Gaddafi era, therefore indiscriminately implicating all those who have been associated with the regime, or have worked in state institutions and bodies at various levels, the Law considers the “February 17 Revolution” fair and sacred and absolves those who committed any violations of responsibility.
Therefore, this law cannot help to achieve reconciliation nor provide a roadmap. Moreover, it has been employed to settle scores and, in some cases, liquidate opponents and competitors. It has also been employed to punish people and exclude individuals, regions, and tribes, especially those that did not accept the vision and policies of political Islam and its allies and refused to submit to them, or refused to accept change at all. Rather, the law was used to justify subsequent military operations and acts of aggression similar to those undertaken under the banner of the Islamist Libya Dawn. This generated new strife, animosities, and contradictions amongst regions and tribes, as in the case of the 2012 GNC Resolution No. 7 used, along with other provisions, against the tribes of Werfellah and Wershefanah for reprisal purposes.
The Skheerat agreement contains provisions related to national reconciliation and transitional justice, particularly those detailed in the annex on “Confidence-Building Measures,” but none has been implemented. Neither the GNA nor the Higher State Council has cared to establish the truth and reconciliation body referred to in the LPA, and all relevant provisions remain dead letters. The last step the GNA took at establishing a committee on reconciliation resembles a kiss of death to what preceded it, regarding reconciliation, including the appointment of a minister for reconciliation and a deputy minister at another ministry within the GNA. Thus, what was achieved by the Skheerat agreement was merely the creation of a more open context conducive to reconciliation initiatives, especially in the west of the country, rather than achieving reconciliation that is badly needed for rebuilding long-term peace and trust between the various Libyan actors (tribal, regional, or political). All in all, what the LPA and GNA have accomplished does not go beyond ending some of the fighting in the western parts of the country, “negative peace,” while becoming fully immersed in yet another civil war that began in April 2019, testifying to the failure of the LPA and to continued division and intense foreign intervention.
The 2017 draft constitution has various references to reconciliation and transitional justice. However, these do not provide a coherent and integrated vision as they lack even a clear definition of reconciliation and what it means! The draft does not establish or provide a framework for comprehensive reconciliation that ensures its coherence and provides the basis for legislation that can or should be promulgated later. Though the draft prohibits human rights violations, enforces the disclosure of the fate of missing persons and victims of violations, and enshrines non-discrimination between crimes, irrespective of timing, its provisions remain very general and formalistic. Given this, it is feared that the rise and numerous frequency of calls for national reconciliation only indicate political tactics by the various parties and their attempt to exploit such a noble objective for political purposes. This helps them appear responsive to the wishes of public opinion and the international community, thus harming reconciliation itself. The conflicting parties realize that by pretending to advocate and work for reconciliation wins them international support and helps build political and societal legitimacy and new alliances. Therefore, there is an urgent need for the international community to be weary of such tactics and press for amending the current legislation or to issue new legislation that is not limited to transitional justice and nominal reconciliation, but gives priority to national unity. This could be based on Libyan traditions and social customs, but also within a comprehensive approach guided by the best practices in the field of state and nation-building, stemming from a peace and reconciliation agreement that establishes a new social contract.
Successive post-2011 governments have proved weak, incapable, or unwilling to demonstrate any determination in confronting militias, and have, instead, chosen the fatal alternative to appease them, assigning them official tasks, financing them, and enabling them to become stronger than their financer (the state). Weapons have become a necessity for living in a tribal society: a highly desirable authoritarian tool for militias and armed groups and gangs claiming a share of the cake! The result of such a practice has been a war and a militia economy, rendering state institutions into tools for the war and its instigators (Rashad 2016).
The first requirement to address this challenge, therefore, is to rehabilitate and reactivate formal institutions within the provisions of legislation that govern their work, while making the necessary amendments. Most importantly, however, is reviewing the decrees and executive orders that bestowed legitimacy and empowered non-state actors in a manner so as to violate justice, human rights, and legislation by force. The most recent example of such measures has been Decree No. 555, issued by the Presidential Council of the GNA, accrediting one militia, the Special Deterrence Force, with wide-ranging powers that violate human rights and contradict legislation. It gives broad surveillance powers to a militia whose members were guilty of abuses in the past against both civilians and journalists (Reporters Without Borders (RSF) 2018). The GNA ignored criticism from national and international activists, legal experts, and human rights groups and insisted on the validity of such a decree simply because the SDF, the strongest militia in Tripoli, controls Tripoli’s only functioning airport at M’eteega (Amnesty 2018).
Armed militiamen involved in the crimes fear accountability, punishment, and loss of what they have accumulated and misappropriated by way of state and private funds. What they fear most, however, is losing the influence and standing they have achieved, along with all accompanying privileges, which in turn have given them social status and influence, overcoming those of the transitional authorities. Militias have imposed, at gunpoint and threat, unjust and exclusionary legislations that serve their interests. These have included the establishment of civil, military, security, or political entities, such as the National Integrity Commission or the numerous military bodies such as, for example, the Supreme Security Committee, Libya Shield Force, and the Revolutionaries Operations Chamber. These groups represent various interests and many of them belong to ideological and extremist trends that despise the state and reject its legitimacy and authority. Therefore, any approach in dealing with them must be comprehensive.
However, any approach must have no illusion that such militias have and will commit crimes and violations, and these should not be met with impunity, as has been the case ever since Libya’s National Transitional Council (NTC) passed an amnesty law on their behalf on 2 May 2012. “Law 38, On Some Procedures for the Transitional Period” grants a blanket amnesty to those who committed crimes if their actions were aimed at “promoting or protecting the revolution” against Gaddafi. The same day, the NTC also passed “Law 35, On Granting Amnesty for some Crimes,” which although it excludes certain crimes from the amnesty it confers, for example torture and rape, it fails explicitly to rule out other serious crimes that might amount to war crimes or crimes against humanity, such as murder and forced displacement (HRW 2012).
Institutions, Reconciliation, Resources, and Federalism
There is little disagreement that conflict-torn countries have a desperate need for institutions of governance, public administration, judiciary, and military and security services (United Nations Development Programme (UNDP), Bureau for Crisis Prevention and Recovery 2008). The state-building approach focuses on institutionalization, which implies the consistent development and adherence to rules and regulation for the different activities a state and its organs perform. “Institutionalization means that sustainability does not depend on any single individual, but on a shared commitment to the principles, procedures and goals of the institution” (Call 2008, 67). The next priority is translating the tasks and functions into an inclusive institutional and governance plan.
The literature on fragility has not much to offer on how institutions and public agencies could overcome conflict challenges. It remains central for post-conflict strategies to succeed that institutions take root and function effectively and gain legitimacy and, therefore, forge resilience, contributing to state-building and conflict resolution. Many lessons are learnt from international experience, and several case studies show how institutions in conflict contexts may be able to manage these challenges. Institutions may achieve their objectives and thus contribute to the overall objectives of state-building and development through a whole host of means. Combining both macro-political and micro-institutional strategies, institutions could realize success via several pathways. These include connecting their micro-organizational strategies to the broader macro–socio–political environment. These rest upon a “positive cycle driven by strong elite commitment to lock in reforms and build a measure of operational autonomy before the political equilibrium shifts.” When the political environment is not conducive to such a model, some institutions focus their efforts on “cultivating broad support from clients and key stakeholders” (Viñuela, Barma, and Huybens 2014, xv, 1–3).
A study of nine selected institutions in four fragile and conflict situations found that institutions succeed if, and when, they construct “strategies of deft management—through a shared repertoire of tools and reforms—and concurrently employ tactics to navigate the broader socio-political environment in which they are embedded.” The study identifies a pattern wherein “focusing on delivering results and generating legitimacy at the same time, successful organizations develop internal efficiency and create the external constituencies needed to secure political support. […] Institutions build their resilience in a cumulative manner and develop the ability to make the gains sustainable and conducive to positively affect their rapidly shifting political–economic environments” (Viñuela et al. 2014, 3).
Seen from the perspective of functions and how these affect performance, the success of institutions is related to the concept of “specificity” according to which institutions of a high technical nature are expected to perform more highly than others, for example, central banks in contrast to education ministries. The concept of specificity suggests that success in institutional reform, in particular, and state-building, in general, could be achieved in “agencies where tasks are highly specific […] because these are the organizations in which monitoring outputs and accountability is most possible” (Viñuela et al. 2014, 5).
The institutional and government structures are tailored to bring back the state and initiate a serious inclusive state-building that has been lacking in contemporary Libya, particularly in the post-Gaddafi era. However, it must be emphasized that such proposals must be strongly founded upon a national accord and seeded in an inclusive agreement of peace and reconciliation (Gebril 2016, 347–50). The focus of the LPA on functions rather than state-building has not led to any success. Without institutions, the function-based approach, as current reality attests, has failed to acknowledge that both countries and societies “need institutions that strengthen organizations and promote good governance. […] Institutions that are internally consistent have the lowest risk of a breakdown because such institutions are self-reinforcing” (ACBF, 2004, 4).4
Though institutional reforms are integral to peace-building, they are seldom associated with reconciliation. As the Libyan case demonstrates, state institutions, especially those of the Gaddafi era’s army and security, but also those post-Gaddafi institutions created for partisan objectives, have been the subject of contestation and conflict. With entrenched divisions, most institutions, including those resulting from the LPA, remain fragile, unstable, and only marginally trusted. As the international experience indicates, “Even after a peace agreement is signed, changes to political and security arrangements as part of statebuilding exercises […] can result in the emergence of new forms of violence and threats to sustainable peace such as electoral violence or the splintering of armed groups” (Ramsbotham and Yousuf n.d., 10). Therefore, state-building will always be problematic, unsustainable, and fails to realize the desired peace unless it includes reconciliation. “A focus on integrating reconciliation into statebuilding could help to address the political deficit in statebuilding that has been identified as a stumbling block to its effectiveness” (10). If state-building provides the state with capacity, reconciliation is essential for legitimacy and peace, and both deficiencies are inextricably linked. In Libya, reconciliation efforts continue to fail, partly at least because the country lacks the institutional capacity to meet the challenges involved.
Challenges of reconciliation, therefore, stem from the state system itself and, as such, challenges may not be overcome, unless and until becoming part and parcel of governance and state-building processes. Furthermore, reconciliation is linked to nation-building, which is contingent on the state-building process and, as experience proves, may only be an outcome of successful state-building. Both processes are overlapping but inseparable. However, state-building efforts are only successful if they achieve legitimacy and citizens are convinced it represents them, and this is the major role of reconciliation (Linz 1993).
The lessons from similar cases is that “reconciliation depends less on how the past is addressed than on the fairness of the present and future terms of social cooperation” (Gloppen 2005, 39). The foundation for sustainable systems of governance in post-conflict environments “must necessarily involve processes of conflict transformation that move beyond the minimal absence of overt violence and seek deeper changes in the ways in which former enemies perceive one another and in the nature of their relationships” (Aiken 2008, 68). Evidence from many post-conflict case studies reveals that “neither the initial termination of hostilities nor the formal peace agreements and constitutions settled upon by political elites will be enough to overcome the bitterness and grievances inherent in protracted conflicts. Therefore, efforts must focus on bringing the antagonists together and employing all possible means, including psycho-social efforts, especially if the goal is the integration of all stakeholders into cooperative governance structures, and to coexist together in a shared nation-state” (67).
In the aftermath of intrastate conflict, building a sustainable infrastructure for peace, therefore, “requires not only reconstructing the physical structures of governance, but also incorporating strategies of conflict transformation that seek to address directly the legacies of social and psychological division resulting from past violence […] including programs aimed at transforming antagonistic mindsets and altering the hostile relationships that persist between communal groups.” For reconciliation to realize its objectives, it has to be a transformative process that requires “changing the motivations, goals, beliefs, attitudes, and emotions of the great majority of society members regarding the conflict, the nature of the relationship between the parties, and the parties themselves” (Aiken 2008, 74).
The ongoing Libyan conflict may not be restricted to its political dimension as it digs deeper into long and structural trajectories, linked to the nature of politics and economy in contemporary Libya. These relate to the struggle for the acquisition and distribution of resources that have been centrally controlled. The legal framework governing the management of national resources dates from the period when the modern Libyan state came into existence and after the discovery and export of crude oil, and particularly after the constitutional amendment of 1963, which ended a period of federalism. It led to the establishment of a centralized authority and management of national assets that became well entrenched during the Gaddafi era, despite the exhausting experiences during the 1990s, exemplified in what was then known as the governorates’ decentralized (Shabiyyat) system.
From a legal and constitutional perspective, the challenge is the need for an approach that starts from reviewing all laws and regulations that determine the relations of power, especially those between the national, regional, and local. The Interim National Constitutional Declaration issued by the National Transitional Council provides a platform for new laws or amendments to existing laws and legislations that define administrative and financial organization of the state and their hierarchy and accord them legitimacy. What is most important is the actual implementation of financial laws that are still in force, such as those governing the roles, functions, and duties of the regional and local levels, as practiced during the Shabiyyat period, allowing a great deal of financial and administrative decentralization. Even though these were void of any political functions during the Gaddafi regime, such shortcomings could be overcome later by empowering local governance legislation. More devolution could be granted to these subnational levels.5
This would counteract the negative effects of increasing central public spending, on the one hand, and overcoming the shortcomings of centralization, on the other, which would pave the way for the unification of central institutions or authorities. It also contributes to ending the ongoing conflict between the various parties, where one side cries for less centralization and marginalization, while the other defends national unity and fears separatist orientations, disguised in federalism. Certainly, there is a risk that decentralization will weaken and damage the political authority and moral status of the national state in a way that might threaten its unity. However, it is also certain that the elimination of the multilevel conflict and competition for power and resources at the center will become more feasible. At the same time, the scope and mandate of central authority is reduced, thus limiting the volume of public spending it manages.
The struggle over nationally dividing issues will also lessen by transferring the competition to the local level, where conflict and contestation issues are not as divisive. Unlike what the duality of centralized (a simple, unified state) versus federalism trajectories involve by way of contradictions and sometimes irreconcilable difference, decentralization and local governance could provide the appropriate platform to surpass such challenges and contribute to reconciliation and its sustainability, too.
Libyan economist Ahmed Jehani argues that no agreement is possible if it remains locked or “arrested” within an existing centralized rentier model (Jehani 2017). As long as the center continues to have the role of manipulating incentives and institutions responsible for this role, the struggle and conflict are less likely be resolved by relying on the same methods. Jehani proposes that Libya adopts a new economic model with a methodology to change the flow of funds to a new decentralized model. Such a model allows for funding rights instead of unaccountable rents via the Libyan Central Bank (CBL). He explains that billions of US dollars were released to militia-subverted governments, which, since 2012, bribed Libyans with a huge budget bonanza to buy fragile temporary legitimacy for elections. Instead of freezing funds until a post-conflict regime for public finance was in place, they were allowed to flow again into the fragile system well before the necessary agreement was considered. The grave consequences were that the democratic transition was compromised as it rested on the appeasement of militias. This has also had the effect of making the struggle into one for the control of resources and misappropriation that is, for example, reflected in the fact that state paid salaries increased tenfold since 2011.
Jehani proposes a vision to restructure how revenue is managed through what he considers a Rights-Based Libyan Economic Agreement (LEA). The proposal sets out the foundations for “general fiscal rules that would govern how much of the budget the central, local, and social portions receive, and enshrine these fiscal rules in the constitutional declaration with the LPA. This would neutralize the politicizing of key sovereign economic institutions like the CBL, NOC and LIA, and build a solid base for an international assistance framework for Libyan governance” (Jehani 2017, 2). These could be founded on existing legislations, implemented with necessary updates, to become effective within a comprehensive framework of economic and public finance management.
A new economic and public finance model for post-Gaddafi Libya, according to Jehani, could contain the negative impact of the rentier economy and the associated centralized management model. He argues for a four rights formula, wherein each level has its share of wealth and resources, enshrined and protected by law. This transforms the management of natural resources from the existing rentierism, where the center provides funding, like a charity to the other levels, to productive competition in order to increase resources, which serves the goals of reconciliation, national unity, and development. Such an objective could be realized by activating all the legislations that promote local governance and decentralization and by developing the LPA to include an economic agreement on resources, and their distribution, to resolve the conflict between the center and the peripheries. “If the Libyan political factions are actually to reach an agreement on the economic rights of these institutions, the independence and neutrality of the CBL, the National Oil Corporation (NOC) and the National Investment Corporation (LIA) will be guaranteed” (Jehani 2017, 8).
While underscoring the vitality and importance of an agreement on managing and distributing national resources, it is also important to underline that post-conflict stability may not be just the outcome of transformative resources management strategies such as those proposed by Jehani. As the discussion and analysis here have demonstrated, building peace and democracy has more chance of success when it resolves tensions and advances inclusive of post-conflict state-building, and it is here that transformative resource management succeeds (Roy 2016). The political and economic crisis raises two basic challenges. Groups on the periphery that advocate a decentralized or federal model take advantage of the conflictual transitional phase and seize the moment to push their demand, challenging a weak center suffering from fragmented institutions. They consider such a goal may not be attainable in the future when the center transcends its weaknesses, which makes it now less able to negotiate on behalf of the homeland or the whole nation. This was evident in most of the actions and statements of the advocates and activists of federalism, particularly with regard to the constitution-drafting body, the document it produced, and in relation to the referendum law issued by the HoR.
Public opinion attitudes during times of conflict are subject to change. Therefore, advocacy for fully fledged federalism or decentralization may be seen as threatening national unity and/or integration or make it elusive. However, such a call empowers and strengthens local, regional, and tribal identities, whose strength sometimes exceeds that of national appeal and identity, which may also be in its infancy, and hence may endanger a pan-national propensity. The draft constitution, subject to a referendum, risks further schisms as it proposes a model of governance involving a problematic relationship between the center and the peripheries and avoids addressing the challenges at stake.
Therefore, there is a need for legislation to address these challenges in order to establish a national consensus that enhances the prospects for successful state- and nation-building simultaneously. This should address, in particular, financial decentralization and promote the development and role of the private sector. Here, the divisive dichotomy referred to above must be overcome so that the debate on federalism and local governance is seen as a development priority rather than a political option and to arrive at a national strategy or vision of decentralization and local governance by virtue of new special legislation or developing the existing ones. There seems an urgent need for a conscious national debate and dialogue on the relationship between state and citizen and between it and localities at different levels through a bottom-up approach or model that realizes participatory democratic economic resources management and planning. This will be crucial in establishing a local governance system that serves sustainable development.
The fall of the Gaddafi regime in August 2011 was also the fall of weak state institutions that characterized his “state-building” ideology. Libya lost all the tools it badly needed and moved towards conflict in a context of an abundance of arms and militias in a tribal society and a rentier economy. The power-sharing arrangements, as explained above, proved inappropriate since the lack of state authority prevents such arrangements from realizing their declared objectives, because the state and its authority must be created before its power may be shared. Any approach must include the internal and external factors that determine the choice of any government vision and guarantee their partnership.
Foreign interventions notwithstanding, the conflict was instrumental in widening the gap of mistrust amongst Libyans. Indeed, this may have deeper socio-historical and political causes, but it is obvious that the post-Gaddafi conflict has been the major drive behind the current reality. Therefore, any attempt to end the conflict and build the desired state must rest upon reconciliation and consensus-building.
For the draft, see https://security-legislation.ly/sites/default/files/lois/229-2017%20Draft%20Constitution_ENG.pdf (accessed on 20 August 2019).
For examples, see ACBF (2004, 4).