The character of the Libyan crisis today arises from the complex but so far evidently indecisive impact of the UN-authorised military intervention, now formally led by NATO, in what had already become a civil war. NATO’s intervention saved the anti-Qaddafi side from immediate defeat but has not yet resolved the conflict in its favour. Although the declared rationale of this intervention was to protect civilians, civilians are figuring in large numbers as victims of the war, both as casualties and refugees, while the leading Western governments supporting NATO’s campaign make no secret of the fact that their goal is regime change. The country is de facto being partitioned, as divisions between the predominantly opposition-held east and the predominantly regime-controlled west harden into distinct political, social and economic spheres. As a result, it is virtually impossible for the pro-democracy current of urban public opinion in most of western Libya (and Tripoli in particular) to express itself and weigh in the political balance.

At the same time, the prolonged military campaign and attendant instability present strategic threats to Libya’s neighbours. Besides fuelling a large-scale refugee crisis, they are raising the risk of infiltration by al-Qaeda in the Islamic Maghreb, whose networks of activists are present in Algeria, Mali and Niger. All this, together with mounting bitterness on both sides, will constitute a heavy legacy for any post-Qaddafi government.

Thus the longer Libya’s military conflict persists, the more it risks undermining the anti-Qaddafi camp’s avowed objectives. Yet, to date, the latter’s leadership and their NATO supporters appear to be uninterested in resolving the conflict through negotiation. To insist, as they have done, on Qaddafi’s departure as a precondition for any political initiative is to prolong the military conflict and deepen the crisis. Instead, the priority should be to secure an immediate ceasefire and negotiations on a transition to a post-Qaddafi political order.

Unlike events in neighbouring Tunisia and Egypt, the confrontation that began in mid-February between the popular protest movement and Qaddafi’s regime followed the logic of civil war from a very early stage. This owes a great deal to the country’s history and chiefly to the peculiar character of the political order Colonel Qaddafi and his associates set up in the 1970s. Whereas Egypt and Tunisia had been well-established states before Presidents Mubarak and Ben Ali came to power in 1981 and 1987 respectively, such that in both cases the state had an existence independent of their personal rule and could survive their departure, the opposite has been true of Libya. As a result, the conflict has taken on the character of a violent life-or-death struggle.

Eight years after overthrowing the monarchy in 1969, Qaddafi instituted the Jamahiriya (“state of the masses”) that is very much a personal creation largely dependent on his role. A constitutive principle of the Jamahiriya is the axiom, proclaimed in Qaddafi’s Green Book, that “representation is fraud” and that no formal political representation is to be allowed. Whereas all other North African states have at least paid lip-service to the right to political representation and have permitted political parties of a kind, however unsatisfactory, in the Jamahiriya there has been none at all, and attempts to create parties have been considered treason. The consequence of this radical refusal of the principle of representation has been to stunt the development of anything approaching effective, formal institutions or civil society. Notably, the articulation of diverse ideological outlooks and currents of political opinion, which other North African states have allowed to at least some degree, has been outlawed.

A corollary of this low level of institutionalisation has been the regime’s reliance on tribal solidarities to secure its power base. Strategic positions within the power structure – notably command of the security forces’ most trusted units – have been held by members of Qaddafi’s own family, clan and tribe and of other closely allied tribes. At the same time, and especially since the late 1980s, the regular armed forces have been kept weak, undermanned and under-equipped, the object of mistrust.

These various features of the political order help explain why the logic of civil war set in so quickly after the first demonstrations. The protest movement’s early demand that Qaddafi leave unavoidably implied not simply his departure and regime change, but rather the overthrow or collapse of the entire order that he established. The distinction between the state on the one hand and the regime on the other, which was crucial to enabling the Tunisian and Egyptian armies to act as neutral buffers and mediators in the conflict between people and presidency, was impossible to make.

There can be no doubt that the Jamahiriya is moribund and that only a very different form of state – one that allows political and civic freedoms – will begin to satisfy the widespread desire of Libyans for representative and law-bound government. Yet, it was never going to be an easy matter to find a way out of the historic cul-de-sac of Qaddafi’s creation.

The revolt and its subsequent military efforts have been comparatively unorganised affairs. While the Interim Transitional National Council (TNC) – the institution designed to govern opposition-controlled territory – has been making some progress in developing political and military structures in the east, it is most improbable that it has or can soon acquire the capacity to take on the business of governing the country as a whole. The assumption that time is on the opposition’s side and that the regime will soon run out of ammunition or fuel or money (or will be decapitated by a lucky bomb or overthrown by a palace coup) similarly substitutes wishful thinking for serious policymaking. Although such predictions might turn out to be true – and it is difficult to assess in the absence of reliable estimates of Qaddafi’s resources – time almost certainly is not on the Libyan people’s side.

Given its mounting political and human costs, assessments that simply sustaining the present military campaign or increasing pressure will force Qaddafi out soon enough reflect a refusal to reconsider current strategy and envisage alternatives other than a major military escalation. But even if, in the event of such an escalation, the regime should soon suffer total military defeat, it would be reckless to ignore the possibility that the outcome may be not a transition to democracy but rather a potentially prolonged vacuum that could have grave political and security implications for Libya’s neighbours as well as aggravate an already serious humanitarian crisis.

Casualties and destruction mount, the country’s division deepens, and the risk of infiltration by jihadi militants increases as the military confrontation draws out. Economic and humanitarian conditions in those parts of Libya still under regime control will worsen, and the part of the unwelcome and undeserved economic as well as political and security burden borne by Libya’s neighbours will grow. The prospect for Libya, but also North Africa as a whole, is increasingly ominous, unless some way can be found to induce the two sides in the armed conflict to negotiate a compromise allowing for an orderly transition to a post-Qaddafi, post-Jamahiriya state that has legitimacy in the eyes of the Libyan people.

A political breakthrough is by far the best way out of the costly situation created by the military impasse. This will require a ceasefire, the deployment of a peacekeeping force to monitor and guarantee this under a UN mandate and the immediate opening of serious negotiations between regime and opposition representatives to secure agreement on a peaceful transition to a new, more legitimate political order. Such a breakthrough almost certainly necessitates involvement by a third party or third parties accepted by both sides. A joint political initiative by the Arab League and the African Union – the former viewed more favourably by the opposition, the latter preferred by the regime – is one possibility to lead to such an agreement. They could build on ongoing efforts by the African Union and the UN Special Envoy, Abdul Ilah Khatib. But no breakthrough can happen without the leadership of the revolt and NATO rethinking their current stance.

Their repeatedly proclaimed demand that “Qaddafi must go” systematically confuses two quite different objectives. To insist that, ultimately, he can have no role in the post-Jamahiriya political order is one thing, and almost certainly reflects the opinion of a majority of Libyans as well as of the outside world. But to insist that he must go now, as the precondition for any negotiation, including that of a ceasefire, is to render a ceasefire all but impossible and so to maximise the prospect of continued armed conflict. To insist that he both leave the country and face trial in the International Criminal Court is virtually to ensure that he will stay in Libya to the bitter end and go down fighting.

Only an immediate ceasefire is consistent with the purpose originally claimed for NATO’s intervention, that of protecting civilians. The argument that Qaddafi has failed to deliver a ceasefire ignores the fact that Security Council Resolution 1973 did not place responsibility for achieving a ceasefire exclusively on one side and that no ceasefire can be sustained unless it is observed by both sides. The complaint that Qaddafi cannot be trusted is one that can be levelled at any number of leaders on one side or another of a civil war. The way to deal with the issue is to establish the political conditions – by mobilising through concerted diplomacy a strong international consensus in favour of an immediate, unconditional ceasefire and serious negotiations – that will increase the likelihood that he keeps to his undertakings.

Several principles therefore should guide the immediate search for a negotiated settlement:

• Mediation by third parties trusted by both sides, perhaps a joint African Union/Arab League proposal;
   
• A two-phase ceasefire – first, a mutual truce declaration between the regime and the Interim Transitional National Council (TNC) to agree on issues such as the location of peace lines, deployment of peacekeeping forces and delivery of humanitarian assistance; second, a mutual declaration of a cessation of fighting and announcement of talks on the shape and modalities of the transition to a new Libyan state;
• Ensuring that the ceasefire not only stops the fighting but also leads directly to political negotiations between the TNC and the Qaddafi regime;
   
• Making a clear distinction between Qaddafi “going” – ceasing to have any political role or power – as a key element of the desired political end result and his “going” immediately, as the precondition of everything else;
   
• Making clear from the outset that neither Qaddafi nor any of his sons will hold any positions in either the government of the post-Jamahiriya state or the interim administration put in place for the duration of the transition period;
   
• Making clear that all Libyans, including those who have up to now served the Qaddafi regime, will enjoy equal civil rights, including the right to political representation, in the post-Jamahiriya state;
   
• Providing Qaddafi with an alternative to a trial before the ICC; and
   
• Making clear that any post-Jamahiriya state must have real and properly functioning institutions; be governed by the rule of law; and explicitly guarantee the principle of political representation, which implies genuine political pluralism.

The present conflict clearly represents the death agony of the Jamahiriya. Whether what comes after it fulfils Libyans’ hopes for freedom and legitimate government very much depends on how and when Qaddafi goes. This in turn depends on how – and how soon – the armed conflict gives way to political negotiation allowing Libya’s political actors, including Libyan public opinion as a whole, to address the crucial questions involved in defining the constitutive principles of a post-Jamahiriya state and agreeing on the modalities and interim institutions of the transition phase. The international community’s responsibility for the course events will take is very great. Instead of stubbornly maintaining the present policy and running the risk that its consequence will be dangerous chaos, it should act now to facilitate a negotiated end to the civil war and a new beginning for Libya’s political life.

Cairo/Brussels, 6 June 2011