Is it Lawful for Coalition Forces to Arm the Libyan Resistance?

In Uncategorized on April 5, 2011 at 4:03 pm

In the last two weeks International legal experts and policy-makers have been debating whether or not SC Res. 1973 lawfully permits coalition forces to use military strikes to directly target Muamar Qaddafi or support rebel forces as they attempt to drive westward towards Tripoli.  The debate and confusion hinges largely on the interpretation of the fairly ambiguous operative para. 4 which “authorizes” member states “to take all necessary measures” to “protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya.” This week, the debate has somewhat moved on to whether it would be legally permissible for coalition forces to arm the Benghazi-based rebel resistance.  The dilemma is of course that para. 9 of SC Res. 1970 passed in late February imposes a comprehensive arms embargo that effectively applies to the whole territory of the “Libyan Arab Jamahiriya”. In other words, it would be unlawful for any member state to provide arms to any group operating within the territory of the Libyan state. Certain commentators, however, like former deputy defense secretary Paul Wolfowitz, have argued that the term “Jamahiriya” can be interpreted narrowly to apply only to the Libyan regime itself.  Such a reading is rather unpersuasive, however, since the term is typically used as part of the designation for the Libyan State itself. Previous SC mandated embargos like the one imposed on Liberia in April 1995, pursuant to SC Res. 788 applied to all parties operating within the territory of Liberia not just the government. Often-times subsequent resolutions are passed to modify the arms embargo to make it  clearer who are the specific targets of the embargo (ie. particular militias or groups).  In this case, however, even the State Department has conceded that the arms embargo imposed by Res. 1970 “affects” all of Libya making it a “violation for any country to provide arms to anyone in Libya.”

With the passage of UN Res. 1973, disagreements have now arisen among legal experts and policy-makers on whether operative par. 4 allows for some flexibility in adjusting the arms embargo imposed in the previous resolution.  According to US Secretary of State Hillary Clinton:

“It is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya, so that there could be a legitimate transfer of arms if a country should choose to do that.”

Last week coalition forces stretched the interpretation of para. 4 to help justify the use of military strikes in support of rebel forces. This week, US and UK policy-makers are attempting to create a similar link between arming the rebellion and “protecting civilians and civilian populated areas.” Many International legal experts have either rejected such an interpretation of para. 4 or remain skeptical of the reading.  Sands QC, professor of international law at University College London was quoted by the Guardian as saying: “The embargo appears to cover everybody in the conflict which means you can’t supply arms to rebels.” The paper also quotes Professor Nicholas Grief, who “said that to him the 17 March resolution [1973] in fact appeared to strengthen the arms embargo by calling for its “strict implementation” by member states.”

Perhaps, one possible argument in favor of the US’s reading of the resolution is the direct reference made in para. 4 to para. 9 of the Res. 1970. The clause stipulates that member states can take “all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas..”  This reference makes it clear that the measures taken to protect civilians cannot be limited by the arms embargo itself. However, certain experts question whether arming the rebellion is really a measure necessary for protecting civilians. The support may be necessary for the survival of the fighters and combatants who form the rebellion but would it be necessary for the protection of the civilian population? One could perhaps  argue that the rebels are the only line of defense the civilian population has against a regime that has no qualms about targeting civilians.  This week the Libyan regime has begun to rely far less on heavy armor  tanks during operations. This may as a consequence reduce the effectiveness of military strikes as a means of protecting civilian areas.  Arming the opposition may primarily be the most effective means of challenging the Qaddafi regime—but one could equally argue that it is becoming increasingly necessary for the protection of the Libyan people themselves.

From a policy standpoint, the coalition forces, particularly the US, UK and France, are actively pushing for the fall of the Libyan regime.  Arming the opposition is seen as just one of the means of bringing about such a result.  The reliance of the coalition on the most recent resolution to justify such measures may be questionable from a legal standpoint but is completely understandable from a policy perspective given the alternative options.

The first possible legal option  would be to request an exemption for the opposition rebels within the framework of SC Res. 1970 itself.  According to Para. 9(c)  of SC Res. 1970, the Sanctions Committee, partly established to monitor the embargo, can approve the “sales or supply of arms and related material..”  Since the Committee consists of all members of the SC, including China and Russia, it will be extremely challenging to convince them to support such a move.

Perhaps an even more challenging alternative would be to draft a whole new resolution that would modify the present arms embargo so it would not apply to the opposition “interim authority”. However, such a move would probably face equally stiff resistance from the Chinese and Russian governments.

  1. I am failing to read how SC Res. 1970 and SC Res. 1973 conflict. Agreed, SC Res. 1970 was issued against Libyan Arab Jamahiriya, which, if read in isolation includes the government and every one or group within Libya. But we need to put the context in which SC Res. 1970 was imposed. It was imposed because of Muammar Ghadafi’s potential to use weapons against his own people and reading it to include the rebels who were non existent at the time of the embargo is far stretched. Infact SC Res. 1973 supports this argument in that “necessary steps to protect civilians and civilian populated areas under attack in Libyan Arab Jamahiriya” have to be taken. To argue that SC Res. 1970 includes all the groups in Libya, ignores the civilians meant to be protected and the threat they need to be protected from. SC Res. 1970 was not imposed on Libya because of any outside threat. It was imposed because of the threat from within, more poignantly from Muammar Ghadafi against his people and not vice versa. SC Res. 1973 was passed pursuant to SC Res. 1970 and at the time of passing this resolution the rebels were civilians, who by necessity were forced to take up arms to protect themselves.

    There are no boots on the ground to execute SC Res. 1973. NATO air strikes have not stopped Ghadafi from targeting civilians and civilian populated areas. It is undoubted that the imposition of these resolutions was not meant to be hollow. There was an intent to effect an arms embargo to stop Muammar Ghadaffi from killing his own people and SC Res. 1973 was passed to effect the means of carrying out the intent by taking “all necessary steps to protect civilians…” Arming civilians, now rebels, is necessary to stop the onslaught since at present there is no other effective way to protect them in accordance with SC Res. 1973.

    The context in which SC 1970 was imposed and the follow up resolution (SC Res. 1973) make the policy and legal issues in tandem but not conflicting. Otherwise, an absurdity will occur whereby resolutions were passed without effective ways of satisfying them. One may argue that boots on the ground will be effective, but unless and until such steps are taken, which is highly unlikely, civilians and civilian populated will be unprotected which will in turn defeat SC Res. 1973.

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