Thursday, March 31, 2011

Can we supply arms to the Libyan rebels?

(FGM-148 Javelin: designed to be squaddie-proof, and it is therefore probably rebel-proof.)

So the back-and-forth along the Libyan coast is continuing, and though it is encouraging that the long-serving Libyan Foreign Minister Mousa Kousa appears to have defected, it doesn't yet feel like either side is going to have a gentle stroll to victory. 

Which is why the American and British Governments are now openly discussing options for supplying the Libyan rebels despite the arms embargo. Is this legal? Secretary of State Clinton and the UK Government says yes it is. Philippe Sands QC says no it isn't. Despite my nuanced disagreement with Prof. Sands earlier this week, I'm instinctively behind him rather than the Governments.

Who's right?

 (Utterly gratuitous shot of UN Headquarters, New York. Cool though.)

The first UN Security Council Resolution is UNSCR 1970 (2011) of Feb 26, 2011. UNSCR 1970 establishes the arms embargo in Operative Paragraphs 9 - 14. Paragraph 9 states:

"9. Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories"

It goes on to provide some exceptions to the embargo.

This raises two questions. 

First, when UNSCR 1970 talks about banning weapons shipments to the "Libyan Arab Jamahiriya", does this mean Libya as a whole or just the Gaddafi regime? 

Second, does UNSCR 1973 (2011) generally supersede UNSCR 1970 (2011), and specifically, does the "all means necessary" language in OP4 of UNSCR 1973 mean that the arms embargo on the rebels is moot in any event? 

On the question of whether the phrase "Libyan Arab Jamahiriya" covers both sides in the conflict, I think that for two reasons it must. First, "Libyan Arab Jamahiriya" is the official name for Libya, and not that of the Gaddafi Government. More importantly, arms embargoes are typically against both sides - see, for example, the Cote d'Ivoire arms embargo in paragraph 16(c) of UNSCR 1933 (2010) - to avoid overtly taking sides. So on the first count, I think that the arms embargo must apply to both rebels and Gaddafi.  

(UNSCR 1441 adopted unanimously, Nov 8, 2002. Implied repeal meant a bad day for the hawks.)

On the second more substantive question, the doctrine of implied repeal does apply to UNSCRs: if the Security Council grants and then limits or rescinds powers - e.g. for the use of force - then States cannot rely on the earlier Resolution to do what they want. Indeed, just ask Messers Blair and Bush - this was the fundamental problem with their attempt to use UNSCRs from 1990 to legitimate their illegal 2003 attack on Iraq.

But even implied repeal only gets you so far: despite the wide latitude of UNSCR 1973 accorded to intervening States, OP4 states:

"to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya"

So it directly references the arms embargo - reading, in effect;

"to take all necessary measures, notwithstanding the arms embargo, to protect civilians and civilian populated areas under threat of attack in Libya." 

This could be read as rendering the arms embargo moot if the "necessary measures" to protect civilians included the supply of arms to the rebels - or indeed, if the rebels turned nasty, to the Gaddafi forces. 

But I'm not sure. I'm yet to read the Explanation of Votes (EOVs) that accompanied UNSCR 1973 which will provide the critical colour on whether or not the Member States actually thought that they'd granted these powers to the allied coalition - the shape of which was of course unknown. 

I don't know what the definitive legal answer is: it's possible to make a case either way. 

But by far the best approach would be for the allied powers to return to the Security Council to formally vote on raising the arms embargo on the Libyan rebels. The question of whether this would survive a Russian or Chinese veto is separate, but it would in my view be a mistake to press the outer boundaries of the existing resolution out of fear of a veto by Russia or China. Faced with a choice of making them publicly defend casting a veto in favour of Gaddafi's forces, or running around like naughty school boys who know that they're stretching the rules to breaking point, let's go back to the UN and do it properly.

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