Evaluation of the Government Established in Libya after the Civil War in the Context of International Law

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ABSTRACT

In this study, after the development and destructiveness of the civil war in Libya, the problem of single-state multiple governments, in the context of both political and international law, was discussed. In the Libyan Civil War, besides the conflict between groups, terrorist organizations, power imbalance and emptiness, the phenomenon of constitutionalism is also important. It was evaluated on the basis of international law and the internationalization of the crisis experienced in the country during the Libyan civil war and its development. In addition, there have been discussions about which legal boards and understanding can be called the formations in Libya as “government” by using international law terms and understanding. Since the recognition of the state and government requires different concepts and conditions, the issue of government recognition has also been widely discussed in order to understand the problem in Libya. Later, the assets that claim power and rights in Libya were explained and it was discussed which entity meets the government definition and under what conditions. The acceptance and rejection of the consensus government, which was established by the United Nations in order to stop the civil war and chaos created by the multiple governments in Libya, as legitimate in international law has been discussed in the context of a cause-effect relationship.

Key Words: Civil War, International Law, Recognition, De Jure, Government of National Accord (GNA)

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ÖZET

Bu çalışmada, Libya’da yaşanan iç savaşın gelişiminden ve yıkıcılığından sonra hem siyasi hem de uluslararası hukuk bağlamında yaşadığı tek devlet çoklu hükümet problemi ele alındı. Libya İç Savaşında gruplar arası çatışma, terör organizasyonları, güç dengesizliği ve boşluğunun yanında meşrutiyet olgusunun önemi de büyüktür. Libya iç savaşı ve gelişimi sırasında ülke içinde yaşanılan krizin uluslararası boyuta taşınması ve uluslararası hukuk bazında değerlendirilmiştir. Bunun yanında uluslararası hukuk terimleri ve anlayışı kullanarak hangi hukuk kurulları ve anlayışı çerçevesinde Libya’daki oluşumları “hükümet” olarak adlandırılabileceği konusunda tartışmalar yer almıştır. Devlet ve hükümet tanınması birbirinden farklı konseptler ve şartlar gerektiği için Libya’daki sorunun anlaşılması açısından hükümet tanınması konusuna da genişçe yer verilmiştir. Daha sonrasında ise Libya’da güç ve hak iddia eden varlıkların açıklaması yapılmış ve hangi varlığın hükümet tanımını ne şartlarda karşıladığı tartışılmıştır. Birleşmiş Milletlerin Libya’daki çoklu hükümetin yaratmış olduğu iç savaş ve kaosu durdurmak adına oluşturduğu mutabakat hükümetinin uluslararası hukukta meşru kabul edilmesinin devletler tarafından kabulu ve reddi sebep-sonuç ilişkisi bağlamında ele alınmıştır.

Anahtar Kelimeler: İç Savaş, Uluslararası Hukuk Tanınma, De Jure, Ulusal Mutabakat Hükümeti (UMH)

 

Libyan Civil War Beginning, Developments and Background

 The post-WWII cold war era was the period when the most civil wars were experienced all over the world, especially in Libya. Although there was no situation in the world where mass deaths were not experienced like the First World War, the Cold War period was the period when the civil wars were seen the most. In these wars, more than 11 million people lost their lives in 16 countries during the Cold War.

Although the cause of civil wars is not completely known, it is the political events and the most important causes of ethnic and religious differences. This ethnic and religious difference is not directly the cause of civil war, of course, but it can cause inclination. In addition, according to some opinions, ethnic and religious differences are never a cause of civil war in regions where per capita income is high. It could be thought that poverty triggered the rebel group and caused the civil war to flare. Just like the civil war in Libya. The unequal distribution of economic income in Libya, ethnic and religious differences, the importance of the strategic region and the Arab Spring effect certainly prepared the ground for the outbreak of the civil war in Libya with the Cold War that emerged after the Second World War. ( Özpek, B. B., 2014)

 

Triggering Factors of the Civil War in Libya and the Overthrow of Kaddafi

Kaddafi’s dictatorial repression and lack of economic middle-class protests have triggered the civil war which began in February 2011 and 7 into civil war. Kaddafi is a head of state who came with a coup in 1969, and together with that, he is the president who held the post for the longest time. His prolonged presidency resulted in this civil war. The people could not stand the misery and the dictatorial regime. However, one of the biggest problems that triggered the Libyan civil war is the rebellion movement that started in Tunisia on December 17, 2010. In Tunisia, a Tunisian peddler named Muhammed Buazizi set himself on fire, affecting the entire Middle East(Eriksson, 2016, p. 821). Income inequality and poverty have been caused by the libertarian and liberal movement that has surrounded the entire Middle East. The Tunisian youth set himself on fire, causing rebellion movements and spread to Libya. The distinctive feature of the civil war in Libya from Egypt and Tunisia is that in other states, the people rebelled against the administration, but in Libya, the people rebelled against the state. The issue itself in Libya is Kaddafi. The most important issue in Libya is tribalization, nepotism and social injustice. When Kaddafi came with a coup, he especially promised to eliminate tribalism in 1969. However, after he came to the state administration, he placed his relatives in the government for a long time and continued to become tribes. Tribalization is an extremely important issue in Libya. Libya consisted of three main parts: 1929 Italy Fezzan, Tripoli and Cyrenaica. There were more than 140 tribes in these regions. The relations of these tribes with each other and abroad have increased especially with the discovery of oil. The power vacuum after Kaddafi’s departure was due to the fact that there are too many tribes. The formation of too many tribes disrupted the balance of power and conflict can arise. In order to understand the It is necessary to know the social, political and political structure of the Libyan civil war (Legislation No.13, 2013). This can be interpreted as the importance of the issue of tribalization in Libya.. The shelter of different tribes in Libya caused difficulty and competition, and the main reason for such deep events after the civil war was the tribes in Libya. The forces of the tribal structure caused the civil war to prolong in the country. There are three main tribes that are different from each other, consisting of three main divisions, namely Fezzan, Tripoli and Cyrenaica, as well as sub-tribes. Kaddafi could not solve this tribalization problem.(Orsam, 2011)

 The Libyan civil war was unlike any other Arab Spring-influenced country. In other countries (eg Egypt, Tunisia) the masses wanted to overthrow the regime. The situation was different in Libya. In Libya, protests against Kaddafi were many, but Kaddafi’s supporters were in the majority, also Kaddafi’s mercenaries were on the field and they had extremely harsh interventions. In particular, the release of Fethi Terbil resulted in Kaddafi’s harsh intervention against the protesters. The bloodiest time of the protests was ‘Anger Day’. From this date on, the protests took the form of civil war, and the struggle between tribes continued harshly(Tanrıverdi N., 2011)

 

Libyan Civil War and International Response

Governments are normally prohibited from using force in international law, but there are two exceptions. The right of self-defense in Article 51 of the United Nations and the enforcement measures that include the use of force by the UN Security Council in accordance with Chapter 7 of the UN Charter. The United Nations intervened in Libya on the grounds of using force. The United Nations’ intervention in Libya was the same as in Kosovo, but the difference is that the Security Council in Kosovo did not have a decision regarding the use of force. For example, Sak considers it openly a violation of law, since both the 2003 invasion of Iraq and the 1999 Kosovo intervention took place without a UN Security Council resolution (Sak, 2015, p. 146).

The United Nations intervention in Libya was not like Kosovo, especially with the decision made, the United Nations intervened militarily in Libya.

Accordingly, the UN Security Council on February 26, 2011 in Libya the force used against civilians who incurred and applied to civilians its resolution 1970 condemning violence as well as the existence of gross and widespread human rights violations (S / RES / 1970, 2011). In the said resolution, in which the Security Council focuses on the humanitarian situation, the Libyan government’s human rights violations against civilians are considered as crimes against humanity (S / RES / 1970, 2011). He wanted him to do whatever (S / RES / 1970, 2011: p.1-3). In addition, the decision also implemented the arms embargo, which halted any weapons transfers to Libya (S / RES / 1970, 2012, pp.9-14).

Since he was convinced that the situation was worse than the one he had determined in his decision no. According to the decision, in addition to the decision numbered 1970, a no-fly zone was declared (S / RES / 1973, 2011: paragraph: 6-12) and gave the powers to take all necessary measures for the protection of civilians (S / RES / 1973, 2011: paragraph .4-5). Although there was no land occupation force among these powers, it did not present any obstacle to the air bombardment that took place under the leadership of France on 19 March 2011 (Bağbaşlıoğlu, 2017, p. 515)

The use of mercenaries violates international law and is among the reasons for the United Nations to intervene in Kaddafi’s use of mercenaries. Another point that draws attention in the decision is the condemnation of Libya’s use of “mercenaries” and the weapon to be applied to “mercenaries”. To seriously control the embargo. (S / RES / 1973, 2011: paragraph. 13-18).

As the UN Security Council resolutions show, International Society took a stand in favor of the regime change that was expected to take place in Libya. The most obvious example of this is the Libyan Contact Group’s recognition of the Libyan National Transitional Government as the legitimate government of Libya and the subsequent recognition by the African Union (Black, 2011). With the contribution of all of these, the contribution of the united nations greatly affected the fate of Libya, and as a result, Kaddafi was killed.

After the assassination of Kaddafi, the government that continued for 42 years came to an end. The tribalization and authority vacuum in Libya created a power vacuum, and after the Libyan civil war, it moved towards a more complex structure, diplomatic problems still continue today.

NATO’s intervention and bombardment supported the groups against Kaddafi in the Libyan civil war and in this direction, Kaddafi, who caused the civil war, was overthrown. As a result, even though a peace period is expected, the situation has become even more complicated. After Kaddafi, in Libya, Kaddafi’s opponents and Kaddafi’s sides entered into conflict. The efforts made for the rebuilding of the state in Libya ultimately led to the division of power and different power centers demanded

power. According to Fraihat, the authority gap created by the death of Kaddafi has been tried to be filled by some units that have not historically been in association with each other and have been constantly in competition. These units are listed as transitional governments, revolutionaries, political parties and non-governmental organizations (Fraihat, 2016, p. 23). Likewise, the failure in attempts to form a government in Libya and the resulting two-parliamentary structures are the apparent reflections of the inability to fill the power vacuum. So much so that the sharp polarization in society also lies behind the formations and political decision-making mechanisms. The distinction between the sections that carried out the revolution (thuwar) and the old regime supporters (azlam) also reflected the political division of the state (Fraihat, 2016, p. 24).

Following the establishment of the General National Congress, retired Major General Caliph Haftar was appointed by the House of Representatives after Gaddafi. However, with the polarization that occurred in Libya, the conflict between the Islamist and anti-Islam groups continued. As a result, looking at the current picture, it is seen that the anti-Islamist and nationalist movement led by Haftar and supported by the Tobruk-based House of Representatives and the military wing united under the name of the Libyan Dawn, a bloody civil war continues between the Tripoli-based Muslim Brotherhood and the Islamic section (Fraihat , 2016,  p. 31).

 

What is recognition in international law?

When discussing the government problem in Libya, it is necessary to meet the state recognition criteria in international law. State and government recognition in international law is examined under a separate heading. First of all, it should be looked at what state recognition is. There are multiple criteria for state recognition. The physical existence of the state does not mean that it will be recognized by other states. One of the conditions for recognition as a state is the concept of government. If states have a country, a population, a government, and the ability to run foreign relations, it is called a state. According to 1933 Montevideo Convention on the Rights and Duties of States, art. 1: «The state as a person of international law should possess the following qualifications:

  1. A permanent population.
  2. A defined territory.
  3. A government.
  4. Capacity to enter into relations with other states. »

However, are these elements specified in the convention sufficient for the recognition of states? There are two types of theories for that question. Firstly, according to the constitutive theory, an entity’s acceptance as a state is not automatic. A state is only recognized as such when it is recognized by other states, and other states have great discretion about whether or not to recognize it (Worster, 2019). Secondly, the declaratory theory looks at the purported state’s claim of sovereignty within the territories it solely controls. It is the opposite of the constitutive principle because it holds that recognition is almost meaningless because states have little to no choice in deciding whether a state is an individual (Worster, 2019). Therefore, the state’s meeting these Montevideo Convention conditions are accepted within the framework of international law. recognition of states is important in many ways. One of Turkey’s recognition of the problem is interested lived closely with the Northern Cyprus Turkish Republic (TRNC). In cases where there is no recognition, there are problems related to participating in international organizations, the validity of the passport in other countries, ensuring diplomatic immunity, and being a party to international treaties. Directly, however, the institution would be able to operate like every other state if all statehood requirements are met. It should be known that recognition is by states, not by international organizations. However, membership of the United Nations and other organizations can be seen as evidence of state recognition. If the UN Security Council concludes that a state was established in violation of international law, it will issue a binding decision banning UN member states from recognizing that state (UNSC res. 550/1984.).

 

What is recognition of government in international law?

It is necessary to take a closer look at what the government term of all these requirements stated in the Montevideo Convention is. Among these qualities, the government element must also have some competencies. The type of the government is the key point for the Libya entity. These types are listed as; explicit- implicit recognition, de facto – de jure recognition and premature recognition. Premature recognition is about even if a state does not possess all the characteristics of statehood, it is granted. Generally, the recognition of such a government is given by other States when the authorities organize a secession movement and set up a provisional government in the state for the prospective new state (Mohd Aqib Aslam, 2020). Also, recognition can be explicit or implicit. In most nations, there is an explicit declaration of recognition, perhaps addressed to the new state’s government.

However, the types of recognition need to be addressed in the Libyan government problem are de facto and de jure recognition. De jure government exists in law, but it is not effective to control state and de facto government exists in fact and effective on control state (Abass, 2013). While there are many claiming entities in Libya, the solution to the issue lies in the definition of the De Jure government. In this case, although there are other structures claiming rights, the GNA, which is seen as a de jure government in Libya, has the right to make commitments on behalf of the whole country in terms of legal facts, although its power decreases. The Tinoco Case between Costa Rica and the United Kingdom in 1923 is one of the best examples of this principle in international law (Baran, 2020). The Government of National Accord is the entity of the government of Libya which was declared officially in 2016 even if the house of representative did not accept. GNA maintains its de jure government status where it does not lose its effective control over the entire country and retains its potential to gain control over Libya. The House of Representatives do not have such a wide recognition. The United Nations is recognizing the Libyan Political Consensus, which will make Libya’s legitimate administration the Government of National Accord.

 

What are the claiming entities in Libya?

It talked about the decision factors as to which entity is Libya government. The question of which institution is the government of Libya is relevant because this question is posed by a number of international legal questions. These concerns include who has the authority to nominate ambassadors or delegates to foreign organizations, as well as who has the authority to conclude international treaties that bind the state (Akande, 2011). However, there is more than one claiming power in Libya. One of them is The House of Representatives. The House of Representatives is Libya’s only national judiciary. While some of the House of Representatives support Haftar’s forces, some support the GNA. Although there is a group standing by Haftar, a decision has been reached in the international arena that the GNA can be considered the legitimate government. The House of Representatives is now known as the “Tobruk government” as Tobruk moved after internal turmoil (Ucar,2020) . Although the Tobruk Government attempted to reach an agreement with the UN-appointed GNA, these attempts failed. The content of this agreement was about government sovereignty sharing. With a new treaty established by the UN, it was decided that the House of Representatives would continue to function as the national legislature. But this agreement was also canceled in the following years (Official Journal of the European Union, 2018).

Haftar, on the other hand, is another power element that hosts mercenaries in a part of the country and is called “putschist” (Anadolu Agency, 2020). Although he was a soldier who played a major role in Gaddafi’s coming to power with the coup, the differences of opinion that Gaddafi had experienced after coming to power had caused his departure from the country. In the government uncertainty and power vacuum after the Libyan civil war, he returned to Libya and deployed mercenaries to claim his own right. The dominant opinion is that the countries that support Haftar have political and economic interests in the foreground (Apps and Maclean ,2011). Although there are countries that support it for this purpose, Haftar’s attacks and actions to dominate the field of military power harm civilians. In this sense, its legitimacy can be questioned. Finally, both Haftar and the House of Representatives failed to be recognized as a government under international law.

 

Why is the Government of the National Accord (GNA) the legal and recognized one in Libya?

The most important source of legitimacy of the Government of National Accord (GNA) is that it came to power with the post-revolution elections and positions itself on the will of the revolution (Kurt, 2020). The source of the ongoing political instability in Libya is not legitimizing Haftar, but also because Haftar wanted to achieve his political goals by using his military methods and the chaos in the country. From the perspective of the government, we cannot show Haftar’s connection with many powerful countries as evidence for the recognition of his government, although this is not sufficient for the recognition and legitimacy of the government, but this does not make it right for us to see Haftar as a part of the government (McKernan, 2020). The international society, which is open to change, is subject to internal and external political interventions. The destruction of old states results in the establishment of new states. States control the territory of the country by establishing governments based on de facto regimes until the consequences arising from internal riots and internal disturbances. The threats posed by the de facto regimes in terms of rights and obligations open the gap between international and international legal solidarity and cause controversial issues (Taşdemir, 2020).

 

The establishment process of Government of National Accord (GNA) by United Nations (UN) and developments of the background:

Libya civil war’s need for the United Nations’ intervention and the need for a legitimate government stems from the de facto regime. The Kaddafi regime was overthrown as a result of the military intervention carried out under the command of NATO based on the UN Security Council resolution dated 17 March 2011 and numbered 1973, and a controversial regime change took place in Libya, thus ending the 42 year old Kaddafi administration (Taşdemir, 2020 ).

Regime change has led to escalating conflicts between armed groups, increasing the power of terrorist organizations, increasing refugee crises and border problems that remain out of control. Libya Political Agreement was signed in December 2015, and

then the Government of National Accord(GNA), which was established through the United Nations(UN) and considered internationally legitimate, was established on 30 March 2016 (Kurt,2020). It has increased the external interventions towards it. The Libya Political Agreement was signed in December 2015 (Pirinççi F,2020). With the establishment of the Government of National Accord (GNA) which was established by the United Nations (UN) on 30 March 2016 and considered internationally legitimate, the problem of single-state multi-governmentality in Libya has increased foreign interventions against Libya, which is geo-politically and economically important. The general rule is that a state has a single government, but in some cases such as civil war or natural disaster, two or more entities may claim to be the government of the same state and be recognized (Kurt, 2020).

 

Recognition process of Government of National Accord in International Law:

The general rule is that a state has only one government, but in some cases, such as civil war or natural disaster, two or more entities may claim to be the government of the same state and be recognized (Taşdemir, 2020:368). Recognition of states is different from recognizing governments acceptance. Recognition of a state explicitly influences the recognition of its government. Even though its government is not recognized, so in the absence of a recognized state, a government may not be recognized. It is only possible to understand the recognition of governments with three methods. These methods are; factual circumstances of the new governments, depending on the legitimacy of its ascendance to power, a new government is subjectively accepted. The form of government is the main point for the Libyan body. De facto and de jure are both types of a government. De jure government is that there is rule, but there is actually an efficient power of state and de facto government is not effective (Abass,2013). The Government of National Accord (GNA) is the Libyan government entity that was officially proclaimed in 2016 even though the house of government was officially declared in 2016. It may claim that GNA is the de jure government because it has substantially recognized it in the international area. The House of Representatives does not have such broad acceptance (McKernan,2020). France, Russia and the United States are the states that accepted Libyan Political Consensus because they are inside The United Nations(UN) (Pirinççi F,2020). The United Nations recognizes the Libyan Political Agreement, which would make the legitimate administration of Libya the Government of National Accord(GNA). The Government of Libya named GNA on the website of

the Turkish Foreign Ministry. Furthermore, if it can not lose its direct effect over the entire country and maintains its ability to gain control over Libya, the GNA will preserve its de jure government status,the popular recognition in foreign areas such as the UN and other countries and Libya it has the right to sign care .Turkey, Russia, United Nations, America, Iran and Qatar are the states that recognize around the context of international law of Libya Government of National Accord(GNA) as a government.The states which are supporting the Haftar government ,refused to recognize the Government of National Accord (GNA) of Libya are Greece, the European Union, Southern Cyprus, Italy, the United Arab Emirates (UAE) and Saudi Arabia (TRT Haber, 2019).

 

Which states recognized legal government in Libya with reasons and why the other states refuse to recognize legal government in Libya with reasons:

It is obviously clear that the Government of National Accord (GNA) is firstly recognized by the United Nations. Government of National Accord (GNA) established by United Nations (UN) for resolving civil war and confusions that caused some crises between two sides.Turkey not only send drones and modern weapons to Libya in the recognition process but also provided military help to the legal Government of National Accord (GNA). Declaration which was signed between Turkey and the Government of National Accord (GNA) has a mean around international recognition context,this

The declaration disturbed the supporters of Haftar. The first state that disturbed because of the declaration which was signed between Turkey and the Government of National Accord (GNA) is Greece. Kiriakos Miçotakis who is the prime minister of Greece said that if the declaration is not shared with Greece,the ambassador will both be advertised as persona non grata and deported as well.It means that Greece is so away from recognizing the Government of National Accord (GNA) . Egypt agrees with Greece by persistently highlighting the issue of declaration matters and openness with international areas. Ministry of foreign affairs of Israel shared a tweet on official page on twitter to show not recognizing the Government of National Accord (GNA) with highlighting that Israel was worried about Turkey’s strategy in the Mediterranean and the lack of declarations openness.The European Union (EU) also refuses to recognize the Government of National Accord (GNA) by give an excuse of declaration matters not being open to public. European Union (EU) is not a party to the declaration

between Libya and Turkey that’s why European Unions refuse is so clear to understand with this movement. Although France knew that the Government of National Accord (GNA )was recognized as the legitimate government in Libya,it supported. The United Arab Emirates (UAE) and Saudi Arabia show political support as well as arms and ammunition aid to Hafter. Saudi Arabia and the United Arab Emirates, which supported the hafter administration, which was illegitimate and did not fulfill the requirements of being a government, have openly refused to recognize the Government of National Accord (GNA). Huseyin Dehkan, the military adviser to Iranian supreme leader Ayatollah Ali Khamenei, has made it clear that Iran recognizes the Government of National Accord (GNA), saying that they officially recognized the Government of National Accord (GNA) led by Fayiz Serraj in Libya and that they did not interfere in the internal affairs of this country (Sputnik, 2020). US Secretary of State Mike Pompeo declared in a telephone conversation with Libyan Prime Minister Fayiz es-Serrac on May 22 that “the United States is honored to partner with the legitimate, United Nations (UN)-recognized UMH.” Russia announced with satellite images that it transferred Russian warplanes to Libya to support the military security company Wagner operating in Libya (Pirinççi,2020) . The Qatar Defense Ministry’s Twitter statement said, “On Thursday, the meeting between Qatar Defense Minister Khalid bin Mohammed al-Atiyya and the Minister of Defense of the Libyan Government of National Accord (GNA) Saladin Ali al-Nimrush on the training of Libyan military personnel and the enhancement of their military potential. The cooperation agreement was signed (Turkia, 2021). Foreign ministers of Italy and South Cyprus argue that the maritime jurisdiction declaration which was signed by Libya and Turkey violates international law. Italy and South Cyprus disignores recognizing the Government of National Accord (GNA) by common explanation by highlighting that the agreement did not constitute a basis for other states (Euronews, 2020). Based on all of these legal governments is the National Accord because it provided all the requirements that related with international law context. United Nations aimed to stop governments’ varieties and chaos when establishing the United Nations however, the legal government is not accepted by every country.

 

CONCLUSION

As a result of the research and discussions, in this study, the civil war in Libya was explained and the period ended with international intervention. Civil war was tried to be suppressed after the intervention of the United Nations. The Kaddafi period civil war ended with international intervention and the crisis situation was eliminated by military methods. It is seen that the current government in Libya is accepted by a large part of the GNA. At the same time, when discussed in the context of international law, it is seen that the GNA’s claim to be a government in Libya by legal terms and concepts is seen. The De Jure definition of government is considered to be the government variant of the GNA. The National Accord is focused on all these legal governments since it included all the conditions relevant to the sense of international law. However, by setting up the United Nations, the United Nations sought to avoid government variations and anarchy, the legal government is not recognized by every country. Furthermore, the declaration between Turkey and the Libyan Government of National Accord ended in a defeasible situation.

 

 

SİNEM MANAV

BEYZA DEMİRKOL

NUR HİLAL ŞAHBAZ

Uluslararası Hukuk Staj Programı

 

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ACKNOWLEDGEMENT: Thanks to Dr. Prof. İdil Işıl Gül for her contributions to the article and examples.

CEVAP VER

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