By Christine Seisun
Should the United States ultimately decide to arm the Libyan rebels, they would likely breach the UN Security Council arms embargo. Yet, on March 28th US Ambassador to the United Nations Susan Rice publicly confirmed that the US had not ruled out arming the rebels in the mounting civil war taking place in the North African country. The next day at the Libya conference in London, Secretary of State Clinton added fuel to the speculative fire regarding whether or not the United States might arm the rebels by stating that under UN Security Council Resolution 1973 “there could be a legitimate transfer of arms if a country were to choose to do that”. UK Foreign Secretary William Hague has likewise made similar comments. While there are a great many who would like to see Col. Muammar Qaddafi out of power in Libya - and Secretary Clinton has yet to make her legal reasoning public – much of the international law community disagrees with the legality of such an action.
In the two weeks following these announcements there has been significant push back by many international lawyers and high-ranking politicians, such as the NATO Secretary General, claiming that the arming of Libyan rebels would be in direct contravention with either or both UN Security Council Resolutions 1970 and 1973 and the Responsibility to Protect (R2P) doctrine.
The two UN Security Council Resolutions have chiefly authorized an ICC investigative commission (Res. 1970), put in place an arms embargo (Res. 1970 and 1973) and authorized a no-fly zone (Res. 1973). Of utmost importance to the issue of arming the Libyan rebels is Paragraph 9 of Res. 1970 in which the arms embargo seems clear in encompassing everyone involved in the Libyan conflict:
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… (emphasis added)
Paragraph 12 of Res. 1970 even goes so far as to instruct UN member states to “seize and dispose” any of the previously mentioned prohibited items should they be discovered to be supplied, sold or exported to the Libyan state. Moreover, Paragraph 13 of Res. 1973 reinforces the arms embargo by calling for “all Member States…to ensure strict implementation of the arms embargo established by paragraphs 9 and 10 of resolution 1970.”
Clinton and Rice have conversely argued that arming the rebels could be legal as the over-riding objective of Res. 1973 is to “protect civilians and civilian populated areas under threat of attack” and would therefore trump the arms embargo. Yet the strong consensus, as echoed by Philippe Sands, professor of international law at University College of London, is that the arms embargo provides no exceptions. Any legal weapons supply to the rebels under UN authority should therefore be preceded by a change of terms in the UN Resolutions as there is no wiggle room in the current resolutions to do so.
Notably, Res. 1973 marks the first military implementation of the Responsibility to Protect (R2P) doctrine by the United Nations since its official unveiling in the 2005 UN World Summit Outcome Document. The R2P doctrine is not considered legally binding as it raises serious questions of state sovereignty. As of March 24th NATO forces have agreed to relieve the United States of responsibility of enforcing the no-fly zone. By invoking R2P in both Res. 1970 and 1973, it must be remembered that NATO and UN forces are not meant to be intervening in Libya on behalf of the Libyan rebels (i.e. against Qaddafi) but rather in what is meant to be the more impartial humanitarian goal of protecting all Libyan citizens not involved in hostilities or any potential Libyan victims. Should the United States actively support the Libyan rebels - currently acting under the authority of the Interim Transitional National Council (ITNC) - the somewhat neutral and supposedly apolitical aspect of the NATO intervention in Libya would most certainly lose credibility. After all, NATO forces have publicly warned the ITNC that the bombing campaign and no-fly zone is not strictly limited to pro-Qaddafi forces and that they will fire upon rebel fighters should NATO see the ITNC directly putting civilian lives at risk.
Additionally, the active backing of the ITNC over pro-Qaddafi fighters would tip the classification of hostilities in Libya from that of being a non-international armed conflict (NIAC) to an international armed conflict (IAC) according to the 2006 San Remo Manual on NIAC. This change in classification would entail notable differences in legal rights such as prisoner of war status, criminal liability and targeting capabilities.
It is important to remember that the spirit in which UN Resolutions 1970 and 1973 along with the Responsibility to Protect doctrine were invoked under: to stop a massacre and other humanitarian atrocities in Libya. Not to actively prepare one side for war against another.
CHRISTINE SEISUN is a masters student in International Law at the School of Oriental and African Studies (SOAS) University in London, England.