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.

Legality of pre-emption is back....

(Prof. Philippe Sands QC: brilliant, but in this case, I respectfully (and uncomfortably) disagree. A bit.)

Legality of pre-emption is back - and as usual, no-one can agree. The Guardian's coverage is pretty sensible, and I'll come to the substance of the argument over whether allied air forces in Libya can continue to attack Gadaffi's ground forces within the terms of UNSCR 1973 in a minute.

But first can we just cherish the fact that we're having this debate at all? The notion that abstruse debates about the legality of the use of force are now taking place in the press at all is wonderful, and a testament to the work of people like Professor Sands, Professor Francoise Hampson, Professor Elizabeth Wilmshurst CMG, and Professor Charles Garraway in making the role of the law in the use of force so politically important. Thank-you all - it is a wonderful step forward.

Right: Pre-Emption.

There is a long-running argument amongst international lawyers over whether or not you can act pre-emptively in self-defence. In practice, most of the argument over pre-emptive action (more properly, "anticipatory self-defence") comes down to a ferocious debate over which side of a fence are you on: does a State have to absorb the enemy's first strike, or can it blunt it by attacking a State that is in the final stages of launching an attack?

(1967 Pre-emption, Israeli style: Egyptian AF transports destroyed.)

The classic case is the 1967 Six Day War, in which the Israeli Defence Force mounted a pre-emptive attack on Egypt, believing that Egyptian President Nasser having evicted the UN Emergency Force from Sinai and having closed the Straits of Tiran was about to invade Israel. This led to decisive Israeli victories against Egypt, Syria and Jordan, with Israel occupying the Sinai Peninsula, East Jerusalem and the West Bank, and the Golan Heights. Militarily, it was magnificent performance, but legally it was a shambles: the evidence today is that Nasser didn't intend to attack at all, but was posturing for domestic support.

Oops.

Which is why I put myself in the camp that says you have to in effect ride the first punch before counter-attacking (and this could just be the first artillery rounds crossing the border). And those lawyers who favour the right to pre-empt are almost exclusively in the camp that recognises the danger that a broad power of pre-emption would grant - namely, that the greater the margin of appreciation given to those using their right to "anticipatory self defence", the more likely you are to provide a charter for the unbridled use of force.

(Oh dear.)

This is where the Bush Administration's US National Security Strategy of 2002 and 2006 went so far off the rails: it articulated a doctrine of "pre-emptive warfare". At one level, this takes anticipatory self-defence to the logical conclusion: if something could become a threat, it'll be quicker and easier to deal with it now, rather than later.

This is probably true, but it somewhat misses the point that the use of force in such a situation was rendered completely illegal by the passage of Art 2(4) of the UN Charter. In other words, the US National Security Strategies of 2002 and 2006 were in fact premised on the Bush Administration's willingness to explicitly break international law.

 (One opposed to more billboards.)

Libyan So What?

Prof. Sands' point that pre-emption is a slippery slope is absolutely correct. But I take issue with this quote in the Guardian:

"It is difficult in international law to argue for a pre-emptive use of force to protect civilians from a possible threat that might arise in the future. We don't know if there is evidence to show that a failure to attack Ghadaffi's forces would lead to a regrouping that would lead in turn to attacks on civilians."

I would suggest that to the contrary there is 42 years' worth of evidence that Gaddafi's forces have led a more (and generally rather less than) benign reign of terror over his country. This to me leads me to an expansive understanding of the powers conferred to the coalition of the willing by the UN, and with it, the conclusion that Gaddafi forces are being used to oppress civilians, and therefore that attacking them at a time and place of the allied air forces' choosing probably meets the requirements of UNSCR 1973 OP4. As such, my disagreement with Prof. Sands is about nuance, not the law specifically.

But Prof. Sands broader point must be right: if not yet, then pretty soon the western air forces are going to be testing the outer boundaries of UNSCR 1973. Accepting as I do, Malcolm Shaw QC's point that these boundaries are elastic, they are not infinitely so. So whilst hoping that the Gaddafi regime collapses before we're faced with the problem of exceeding the powers granted, the correct thing if rebel ground forces cannot overthrow the Gaddafi regime alone, is to return to the UN Security Council for increased powers if that is required. I'll look at how and what these powers would look like in a future post.

End of the F3

(The last launch. And don't they look odd without big tanks?)

With thanks to Gill Howie for the pictures, we pay our last respects to the Tornado F. Mk. 3 which bows out of service after 25 years today.

Good times, great people.

(Departing over St. A's for the last time.)

Libyan Reflections

(Top tip to revolutionaries: make sure your signs are in english for television...)

Well, in Libya at least, it all seems to be going swimmingly: my concerns that air support alone may not be enough to break Gaddafi's forces are yet to be confirmed - and in retaking the oil towns of Brega, Ras Lanuf and Ben Jawad, they've opened the road to Sirte, Gaddafi's home town.

All good news. And though it would be easy to point out that Sirte could mark the point at which it begins to get harder, the point is that thus far, the strategy is working, especially as there are reports that Gaddafi forces are breaking and running from the fight under fire from allied airpower.

But the opposite of optimism may not be pessimism, but a dose of realism. I sincerely hope that the Sirte garrison realise what is good for them, and give it up gracefully - but then that hasn't been the case so far for the Gaddafi forces. As his home town, if Sirte falls then suggestions that it's game over for Gaddafi may prove accurate. But let's hope it goes well - and have a solid plan for what happens if it doesn't - within the rules of UNSCR 1973. 

On a different Libyan issue, I saw the photo below posted on an aviation website earlier today:

(Are you sitting comfortably? I'd want it bolted to the pickup, but that's 'ealth 'n' safety nonsense, mate!)

According to the poster, it shows Gaddafi forces deploying a twin pedastal mounted launcher for the Russian 9K338 Igla-S (SA-24 GRINCH) infra-red guided surface to air missile system. I'm not a great MANPADS spotter (too many look too similar!) but it looks right to me. Which, given that Igla-S is the newest and longest-legged former Russian, underscores that the crews over Libya are not operating in a no-threat bubble. Good on 'em, and may they continue to be safe / lucky.