The Libyan litigation about the 2017 Memorandum of Understanding between Italy and Libya
You can find here the Arab original and Majd Achour’s English translation of the writ of summons, the Arab original and Majd Achour’s English translation of the Tripoli Court of Appeal Judgement, the Arab original and Majd Achour’s English translation of the Libyan Supreme Court Judgement.
The bilateral agreements between Italy and Libya which entered into force on 4 February 2009 were fatally undermined by the Strasbourg court’s ruling in Hirsi Jamaa and others against Italy. On 2 January 2017, a new Memorandum of Understanding (Italian version here and English version here, analysed in this blog) was signed between Libya and Italy which aims at developing cooperation in different fields including the fighting against irregular migration. In this new agreement, Italy has changed its strategy from push-backs to pull-back operations to Libya. These operations are coordinated, equipped and funded by Italy while carried out by the Libyan coast guard which would also make sure that intercepted asylum seekers will be detained thereafter in Libya pending the voluntary or forced return to their countries of origin. In March 2017, a case was brought before the Tripoli Court of Appeal challenging the MoU. The Tripoli Court of Appeal suspended the MoU by way of interim injunction. In the appeal against that injunction, the Libyan Supreme Court declared the appeal admissible and ruled that the contested ruling, issued by the Tripoli Court of Appeal, was to be annulled due to the lack of functional jurisdiction. The Supreme Court thereby ended the entire lawsuit.
A group of six Libyans, including two lawyers and four civil servants, filed a lawsuit against the administrative authority in Libya challenging the MoU. The questions that we address here is: who are these people? What can we find out which helps in figuring out whether they were motivated for challenging the MoU for purely political reasons (esp. the domestic conflict between the Government of National accord and the Libyan National Army), defending human rights, or patriotism, or maybe a combination of these three?
Though these questions are difficult to answer, the profile of one of the two Lawyers can give us some indications. Ms. Azza K. Maghur is a short story writer, lawyer, human rights activist and former member of the Committee tasked by the General National Congress to amend the transitional constitution in Libya. Ms. A.K. Maghur has written several articles where she has expressed her views regarding the crisis in Libya. In her opinion, achieving security arrangements, saving the rest of the Libyan economy and launching national reconciliation are the only solutions for Libya to overcome its predicament. This, in her opinion, the internationally recognized Government of National Accord in Libya headed by Fayez al-Sarraj, is not able to achieve because it does not have the power on the ground. This can be taken as a reference to Khalifa Haftar, the leader of the Libyan National Army which is the other party to the Libyan conflict and who is in fact controlling the most of Libya. In another article, she opposed holding all Libyans responsible for the migrants ‘’slave auctions’’. In her words:
‘’ When CNN ran a story about “slave auctions” run by human trafficking networks in Libya, the world decried not the perpetrators, but Libyans as a whole: people who are, in the main, victims of the same agents of chaos, and who suffer continuous human rights violations at the hands of militias tied into foreign mafias and transnational crime. Further, neither the foreign states intervening in Libya nor the UN, despite its ongoing operation to “fix” the country, have stood up to defend Libya’s reputation. Nor have they taken steps to limit continued deep outside meddling in the country, itself a major factor in Libya’s predicament’’.
In their writ of summons before the administrative chamber of the Court of Appeal in Tripoli, the plaintiffs argued that signing the Memorandum of Understanding is an administrative act which can be challenged before the administrative court. They have submitted several claims which can be summarized as follows:
- Lack of capacity: the MoU is not valid because it was signed by Mr. Fayez Al-Sarraj who lacks the capacity to sign it for many reasons. Among others, the Libyan House of Representatives has not completely ratified the Libyan Political Agreement which created the Government of National Accord and its two organs including the Presidential Council of which Mr. Fayez Al-Sarraj was named president. Another argument is that the Presidential Council cannot fulfil its duties; this, they argue, follows from the Political Agreement since two of its members have boycotted it and another member has resigned while the Political Agreement requires the Council’s consensus to make any decision. Another claim is that article 17 of the Libyan Constitutional Declaration states that the National Transnational Council or the authority which takes its place later (which currently is the House of Representatives) is the authority qualified in sovereign acts including making agreements with foreign parties. Therefore, the Executive Authority is not qualified in these matters.
- Sovereignty: the MoU means the arrival and empowerment of foreign forces at the Libyan borders, which affects Libyan sovereignty. In addition, the weakness of the military and security institutions in Libya results in an imbalance between the two parties to the agreement and the superiority of Italy which is a member state of the European Union. Because of this situation, Libya becomes a tool to implement the Italian anti-immigration policy.
- Human rights: Considering the current unstable security situation in Libya, Libya is not able to safeguard human rights even for Libyans. The MoU will result in the interception and accumulation of asylum seekers in detention centers. They will be subjected to the worst forms of abuse, torture and exploitation by different groups. Libya is not a party to the 1951 Refugee Convention, and has no laws defining refugees or an asylum procedure in Libya. Therefore, asylum seekers will be deported to their country of origin, where severe human rights violations occur, without offering them the chance to get their asylum claims examined in accordance with international law.
- Security: Libya suffers from armed political conflict, a malfunctioning health system, a security imbalance, the spread of crime and weapons and weak security institutions. Returning illegal immigrants to Libya will lead to worsening the situation in Libya because of the accumulation of irregular immigrants in detention centres which will lead to the proliferation of crimes and diseases in detention centers and in Libya.
- Legal responsibility (analyzed here and in videos here): due to the security crisis, the lack of staff trained in human rights and the lack of means to protect asylum seekers in Libya, human rights violations will happen in Libya. As a result, the international community and the relevant human rights organizations will hold Libya and not Italy accountable for human rights violations on the Libyan territory.
These claims culminated in asking the administrative court to rule in an urgent manner to temporarily suspend the implementation of the memorandum of understanding, and in the substance of the case to declare the MoU null and void.
Indeed, the Court of Appeal in Tripoli has declared the case admissible and ordered the temporary suspension of the MoU until its ruling in the substance of the case. However, the Court of Appeal never decided on the substance of the case, because the defendants (persons with key positions in the Government of National Accord) appealed the administrative court’s provisional ruling to the Libyan Supreme Court. The Supreme Court reversed the Court of Appeal decision due to the lack of functional jurisdiction. According to the Supreme Court, the Tripoli Court of Appeal has erred when characterizing signing the MoU as an administrative act while it is, so the Supreme Court rules, a sovereign act. Accordingly, the MoU cannot be subjected to any judicial review because sovereign acts fall outside the scope of review according to Article 6 of Law no. 88/1971 which determines the functional jurisdiction of the administrative judiciary and which says:
“The Administrative Judicial Chamber is not competent to review applications related to an act of sovereignty and should not accept any application submitted by persons who do not have a direct and personal interest.”
This rule on jurisdiction relates to the competence of the judiciary, and therefore has a public order character – it can be, and must be applied by a court of its own motion even when it has not been invoked by any of the parties to a procedure. According to the Supreme Court, the Tripoli Court of Appeal should have declared the application inadmissible due to lack of functional jurisdiction.
Analysis of the Supreme Court judgment
The Supreme Court has declared the application inadmissible because administrative courts are only competent to hear cases against administrative acts, not cases against sovereign acts. The rule, laid down in Article 6 of Law 88/1971, is not unique to Libyan law. The Supreme Court found in this provision a valid ground for declaring the application inadmissible, thereby side-stepping controversial legal, constitutional and political issues. However, the Supreme Court could have used another provision in domestic law so as to conclude that it does have competence to rule on the substance of the case. Article 23 of Law 6/1982 regarding the establishment of the Supreme Court, which also determines the functional jurisdiction of the supreme court itself, provides:
“The Supreme Court exclusively has the power to adjudicate the following matters:
(…) Second: “Any fundamental legal issue related to the constitution or its interpretation when raised in any case pending before any court.”
Just like Article 6 of Law 88/1971, this is a provision on the competence of the court itself, which the court can (and must) apply of its own motion. On the basis of this provision, the court could have addressed the constitutional issues involved in the case. Undeniably, the first argument (concerning the capacity of the Government of National Accord headed by Fayez al-Sarraj to represent the state of Libya) concerns a fundamental constitutional legal issue, while the sovereignty argument (Libya becomes an agent of Italian policy) can be interpreted as so fundamental to Libyan statehood that it could be considered as a fundamental constitutional legal issue.
Moreover, regarding the human rights argument, the Political Agreement itself has emphasized the importance of preserving human rights in 25 places. For example, in its preamble the Political Agreement stated that ‘’the participants in the Libyan political dialogue will work on building a secure and cohesive society in which national reconciliation, justice, respect for human rights and freedom of expression prevail’’. Again, under ‘Governing principles’ the Political Agreement states that several principles will govern its implementation and interpretation, ‘’including the Commitment to the importance of drafting a permanent constitution for Libya that meets the aspirations and hopes of the Libyan people towards building a state of institutions based on the rule of law and respect for human rights’’. Accordingly, the Supreme Court could also have addressed the inhuman situation of immigrants in detention centres on its own motion as a constitutional legal issue.
The question is why did the Supreme Court opt to avoid addressing these constitutional issues and preferred to strike the case out of its list? We will try to address this question in the next paragraph.
Courts and political questions
Libya is a country with two competing governments. On 17 December 2015 a UN-led initiative in Libya called the ‘Libyan political agreement’ has resulted in the Government of National Accord which consisted of two parts: The Presidential Council and the Cabinet of Ministers. After that, the UN Security Council has recognized the Government of National Accord as the sole legitimate government of Libya and Fayez al-Sarraj as the president of the Presidential Council in the Government of National Accord. Despite that, the biggest part of Libya is in fact controlled by armed groups (called: The Libyan National Army) under the command of Khalifa Haftar who has the support of a number of countries, most notably Russia, Egypt and the United Arab Emirates, as well as France and Jordan. Because of this complex domestic and international political background, the Supreme Court found itself under implicit or explicit political pressure. It made the Supreme Court find a way not to have to rule on contested issues and therefore resulted in leaving the MoU intact.
If the Supreme Court would have preferred the option of ruling on the substance, the validity of the MoU, there would have been two possible outcomes. The court could have either ruled that Fayez al-Sarraj is not the legitimate president of the country and, hence, all his actions are invalid including signing the MoU; this would go against the express will of the international community as represented by the UN Security Council. It would also be a political victory for the Libyan National Army.
Alternatively, it could have ruled that Fayez al-Sarraj is, in fact, the legitimate president of the country, which would have angered the entity controlling most of Libya’s territory. In this scenario, the Court would then have to rule on the arguments relating to Libyan sovereignty, human rights, security and legal responsibility. A ruling that the MoU violates human rights and Libyan sovereignty would have benefited the Libyan National Army. Alternatively, a ruling holding not only that the GNA is Libya’s legitimate government, but also that the MoU was legitimate would have antagonized the entity controlling most of Libya’s territory. All these dilemmas the Supreme Court saved itself by the order in which it applied provisions with a public order character: it ruled on Article 6 of Law no. 88/1971 first, and as a consequence never made it to the point where it had to apply Article 23 of Law 6/1982.
It is not very surprising that the Libyan Supreme Court has resorted to pure formalities so as to avoid looking into the substance of the case, which inevitably would have resulted in an explosive ruling endangering the legitimacy of the Supreme Court itself. Recently, the EU Court of Justice has used formalities to avoid going into the substance in two cases: the EU-Turkey deal case and the humanitarian visa case. In both cases, this formal approach solved a dilemma of judicial politics for the Court at the expense of robust human rights protection and, in the EU-Turkey deal case, of protection the constitution of the EU. Similarly, the European Court of Human Rights side-stepped the sensitive issue of humanitarian visa via a formal interpretation of the notion of jurisdiction (analysed here and here).
Yet, it is the externalisation policies which developed in a way requiring third countries to neutralize their laws. Italy has previously taken the advantage of the existence of an oppressive regime in Libya to engage in bilateral agreements and again taken the advantage of the current political armed conflicts in Libya. As a result, the Supreme Court had little other choice than sidestepping the national law and using pure formalities to avoid ruling on the substance of the case.
It is relevant to note that a supreme court in the global South has, in this particular case, mirrored the “passivist” attitude of an important regional court in the global North (about judicial passivism see the 2018 Odysseus conference, including videos here). Southern supreme courts do not always do this, as is exemplified by the forceful interventions of the Supreme Court of Justice of Papua New Guinea in its ruling on the constitutionality of Australian offshore detention, of the Kenyan High Court on the refoulement of Somalians, and the Colombian Constitutional Court rulings on Venezuelans (mentioned here).
This case-law from the global South is referred to at most as news items even in academic texts. What is referred to is the outcome: Libyan court suspends MoU; Papua New Guinea court ends offshore detention. In this blog, we propose to take the case law of courts from the global South seriously as law, and not merely as news. Like European courts, in this case the Libyan courts were confronted with a dilemma as to the political context of their constitutional role. We gain a better understanding of the legal aspects of the MoU if we as legal academics we take this as seriously as we take the dilemmas of European courts. The existing bias towards interpretations of international law originating in the global North is not merely politically problematic, but also methodologically unsound.