Can the Allies Lawfully Arm the Libyan Rebels?

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My friend Claus Kress yesterday brought to my attention a most pertinent legal issue: In Resolution 1970, the UN Security Council imposed an arms embargo on Lybia. The embargo was reaffirmed and strengthened in op. paras. 13-16 of Resolution 1973. The embargo appears to be comprehensive; no explicit exception is made for the possible distribution of arms to the rebels. However, both President Obama and Prime Minister Cameron have deliberately left open the possibility of supplying arms to the rebels, even though they have not done so for now. What then is the legal argument in support of supplying the rebels with armaments? Yesterday Secretary Clinton remarked that “It is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” She was echoed today by the PM in Parliament, who said that “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.” This position was confirmed by the UK foreign secretary.

This argument raises serious questions of interpretation and of the deliberate ambiguity in the drafting of UNSC resolutions. On the one hand, there are specific provisions imposing an arms embargo without exceptions. On the other, a broad phrase such as ‘all necessary measures’ is taken as overriding the embargo, thus allowing foreign powers to favour one of the parties to the armed conflict. I am not saying that this argument is necessarily wrong, but its correctness is also far from obvious. It is of course tantamount to saying that the provision of arms to organized armed groups can be a method of protecting civilians or civilian populated areas; it also has the Council taking sides in a conflict, without saying so explicitly. I am not aware of similar arguments being made so forcefully by states with regard to UNSC arms embargos – though of course recall the embargo imposed on Bosnia, and the Bosnian argument that it was void as it disabled the Bosnian Muslims to defend themselves from genocide, in conflict with a norm of jus cogens.

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    Christian Henderson says

    March 31, 2011

    Marko,

    It seems clear that whilst on a point of semantics Res 1973 could permit the arming of rebels this would of course be an extraordinary thing for a resolution of the SC to include within an authorization. I don't think there is in principle any barrier to the SC authorizing such measures if it determines a threat to/breach of international peace and security but given that the single most important lesson of the Iraq debacle was that unilateral interpretations of SC resolutions are not permissible, we should perhaps consult the SC meeting record for that resolution. I don't recall that such an option was ever discussed and I find it hard to believe that Russia or China would ever have agreed to such a measure. However, I don't think that this necessarily rules out such an action becoming lawful, or at the least legitimate, if a consensus was to be become discernible amongst the members of the SC (ala Op Provide Comfort in 1991 on the back of Res 688).

    Marko Milanovic says

    March 31, 2011

    Christian,

    Agreed! But I also find it hard to believe that the arming of rebels was never raised as an option during the UNSC negotiations, or that Russia and China were unaware of this possibility. It is more likely that the ambiguity is and was deliberate.

    Emanuele Sommario says

    March 31, 2011

    Dear Marko,

    Prima facie the provision of direct military support to the insurgents seems to be at odds with the letter of Res 1973. Yet, operative paragraph 4 of the same Resolution (containing the authorization to use force) explicitly affirms that member States can take “all necessary measures, notwithstanding paragraph 9 of resolution 1970 “, i.e. the paragraph initially establishing the arms embargo. Could this be the “backdoor” which would make military assistance to the Transitional National Council legal?

    Regards,

    Emanuele

    Marko Milanovic says

    March 31, 2011

    Emanuele,

    Yes, that's exactly the argument that the US and UK are now making.

    Emanuele Sommario says

    March 31, 2011

    Thanks Marko,

    If one accepts that op. para 4 creates a loophole which legalizes the provision of weapons to the insurgents, I fail to understand why NATO insists that the UN resolutions prohibit the supply of arms into Libya.

    http://news.sky.com/skynews/Home/World-News/Libya-Confusion-Reigns-Over-Whether-Libyan-Rebels-Should-Be-Given-Arms-By-Coalition/Article/201103415963069?f=rss

    I also wonder why China, Russia and Germany – given their present stance on the matter - allowed those terms to be included in the text of the Res 1973. Unless the “notwithstanding” clause in para 4 can be interpreted to mean something else.

    Regards,

    Emanuele

    Christian Henderson says

    April 1, 2011

    Marko,

    Just going back to your reply to my previous post, the doctrine of intentional ambiguity is a speculative one and we have to go one what we actually know, not on what might have been discussed during behind the scences negotiations or what was actually in the minds of states when voting or speaking at the adoption of resolutions. In this case all that we know is that the arming of rebels was not discussed (if I recall correctly...) at the meeting when Res 1973 was adopted and those who abstained on the vote did, and many traditionally do, take a very restrictive view on any form of intervention. Together, I think the most forceful argument is that arming the rebels was excluded.

    Marko Milanovic says

    April 1, 2011

    Christian,

    Again, true, but op. para. 4 of 1973 does sort of refer to the arms embargo, when it authorizes necessary measures 'notwithstanding paragraph 9 of resolution 1970.' There are several ways of interpreting this (see Dapo's post above), but the US and UK reading of it does not seem to be implausible.

    Christian Henderson says

    April 1, 2011

    Thanks Marko,

    True, in a textual sense Para. 4 does not necessarily rule it out. But if we are to avoid unilateral interpretations of a resolution (and all the troubles that entails) I would argue that a restrictive as opposed to expansive approach (which relies on plausibility) to interpretation should be adopted, and one that reflects the views of those states voting on it. Indeed, Dapo's post highlights the problems involved with arming the rebels and is arguably unnecessary if other measures to protect the civilian population are exhausted first.

    Emanuele Sommario says

    April 1, 2011

    Marko, Christian,

    Quite frankly, I am still struggling to understand what alternative interpretations could be given to the “notwithstanding” clause in para. 4 of Res 1973 other than an explicit permission to wave the embargo if this proves necessary to achieve the goal of the resolution.

    Can it be reasonably held to mean that intervening States are allowed to transfer weapons into Libyan territory in the fulfillment of the Council’s mandate? In yesterday’s post Dapo convincingly argued that the authorization to use force ought to be seen as an implicit exemption from any existing embargo.

    Does it permit the transfer of arms from one intervening State to another? I am inclined to think that this kind of activities would still be covered by the UNSC authorization to use force.

    The only plausible reading I see is that it authorizes the direct (or indirect) supply of arms to the insurgents for the (sole) purpose of protecting the civilian population. However, as Dapo suggests, it might be difficult to control the actual use the insurgents will make of the weapons so provided.

    Another key question is whether the distribution of arms to the rebels would be authorized without the above clause, solely on the basis of the authorization to use “all necessary means”. If I understand Dapo’s argument correctly, he considers para. 4 as providing green light to both direct use of force as well as to a use of force “by proxy”. Yet the Council’s authorization limits the options intervening States have at their disposal, for instance by explicitly prohibiting “foreign occupation” (btw, here it would be interesting to know if the term is used in its technical, “Art-42-HR” meaning or not). As I see it, the arms embargo represents another such limit. To argue otherwise would imply that one part of the resolution trumps the other.

    So para. 4 seems to amend the embargo regime and arming the rebels could be considered legal if the weapons are used to further the resolution’s aim. But I wonder if there is any alternative, more plausible construction.

    Regards