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Home International Organisations Archive for category "Security Council" (Page 10)

More Thoughts on the Scope of UNSCR 1973

Published on March 28, 2011        Author: 

Chimène Keitner is Associate Professor of Law at the UC Hastings College of the Law.

The American Society of International Law’s 105th Annual Meeting just wrapped up in Washington, DC. As one of the meeting’s co-chairs, I am tremendously grateful to the speakers for their thoughful and timely remarks. I also appreciate the editors’ invitation to contribute some of my thoughts on the evolving situation in Libya to this forum.

Last week, Dapo offered an assessment of the legality of targeting Muammar Gaddafi under the terms of U.N. Security Council Resolution 1973. I would like to reflect on another aspect of that resolution that came up in the comments on Dapo’s post, namely, what the resolution means when it authorizes member states to take all necessary measures “to protect civilians and civilian populated areas under threat of attack.” Dapo’s view of the resolution as a whole is that it “it is really be about stopping Gaddafi’s forces from winning the civil war in Libya.” I tend to agree with this assessment, which carries potentially momentous implications for a system that, as Dapo indicates, was not originally designed to deal with internal conflicts.

Much of the current debate has focused on whether or not the coalition in fact has the ultimate goal of regime change. It certainly could be said that some of the principals “doth protest too much” in disavowing such an aim. Although the Obama administration’s rhetoric of democracy promotion is more restrained than that of its predecessor, Robert Shrum recently opined in The Week that the situation in Libya represents precisely the convergence of American values and interests that warrants overthrowing Gaddafi, and that the current administration knows this. 

Presumably, under the Security Council resolution, the “civilian populated areas” that member states are authorized to protect may contain both civilians and those participating directly in hostilities against the government (i.e., rebel strongholds such as Benghazi). Whether the conflict in Libya is characterized as a civil war, a democratic uprising, or both, the tension between principles of external intervention and internal self-determination seems manifest.

This tension was even more evident during the U.S.-led invasion of Iraq, which is perhaps one reason that Resolution 1973 expressly excludes “a foreign occupation force of any form on any part of Libyan territory” from the ambit of authorized measures. I explore this tension at greater length in my book on The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation Building, and I deal explicitly with the U.S. invasion of Iraq in Chapter Six. One can only hope that the coalition’s current efforts in Libya will prove less counterproductive than the earlier intervention in Iraq.

As Hamas’s 2005 victory in Gaza shows, the outcomes of popular elections are not always in the perceived national security interest of the United States or its allies. At the same time, the support for dictators that characterized U.S. foreign policy during the Cold War is morally untenable and, at least in its overt forms, decreasingly politically feasible. When, as in Libya, the object of protecting civilians appears to require removing an intransigent leader, simply eliminating foreign military occupation from the toolbox will not avoid a quagmire.

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What does UN Security Council Resolution 1973 permit?

Published on March 23, 2011        Author: 

I spent much of yesterday conducting interviews with the media about the situation in Libya. One of the questions I was repeatedly asked concerned the scope of the UN Security Council Resolution 1973 which authorises the use of force in Libya.  How far does the resolution permit the coalition now acting in Libya to go? What are the objectives of the coalition military action? Does it permit the targeting of Colonel Gaddafi? The objectives set out by the resolution seem to me to broader than what is commonly thought. Para. 4 which authorises the use of all necessary means (short of an occupation force) is not just about protecting civilians but also, importantly, about protecting civilian populated areas under threat of attack. In other words, that paragraph authorises the use of force to prevent attacks on towns and cities, whether those attacks are directed at civilians or even at what would be legitimate military targets. My reading of the resolution is that it is really be about stopping Gaddafi’s forces from winning the civil war in Libya. So the resolution seems to be more than what the advocates of the responsibility to protect doctrine would suggest. This is not just about stopping international crimes it is about the restoration of peace, something closer to the original design of the Council (except that it is an internal conflict, which was not in the original design). What sort of peace though? Read the rest of this entry…

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Security Council Passes Resolution 1973, Authorizing Use of Force Against Libya

Published on March 18, 2011        Author: 

The full text of the resolution is available here. The key provision is op. para. 4:

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, 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, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council

Note that this does not merely authorize a no-fly zone; use of force is generally authorized for the purpose of protecting civilians and civilian populated areas, so long as there is no ‘foreign occupation force of any form.’ This us a very broad authorization; the formulation does not necessarily exclude a limited use of ground forces, so long as that force is not of such intensity and duration that it constitutes an occupation. Over at Lawfare, Bobby Chesney has more analysis. The intervention against Lybia is set to commence shortly.

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What Happens to the Gaddafis’ Fortune? Could Frozen Assets be used to Satisfy Claims for Reparation?

Published on March 11, 2011        Author: 

Dr Conor McCarthy is a visiting fellow, from April of this year, at the British Institute of International and Comparative Law. He is author of Reparations and Victim Support in the International Criminal Court, a monograph to be published by Cambridge University Press in early 2012.

The imposition of an assets freeze is now well established in the practice of the Security Council as part of the range of measures at its disposal to maintain or restore international peace and security. It was not surprising therefore that as part of the range of measures taken by the Security Council to address the current situation in Libya, an asset freeze was imposed on various individuals occupying senior positions in the Libyan government and in its security forces as well as on persons closely connected with the ruling regime. In line with previous resolutions in which an asset freeze has been imposed the range of assets frozen by Resolution 1970 (2011) is enormously broad. Paragraph 19 of the resolution requires member states of the United Nations to freeze “all financial assets and economic resources … owned or controlled, directly or indirectly…” by the individuals identified in Annex II of the resolution.

Given the seniority of the individuals in question and the power and influence which they appear to wield within Libya, many states have interpreted the scope of assets “owned or controlled” for the purposes of Resolution 1970 to include a vast swathe of the Libyan state’s assets held abroad. The UK government, for instance, is reported to have frozen around $2bn of assets held in the UK by the Libyan Investment Fund (see here and here). For its part, the United States has frozen around $30bn of assets, including those held by Libya’s sovereign wealth fund and the Central Bank of Libya. Assets owned or controlled by numerous other individuals and entities have also been frozen in the member states of the European Union pursuant to Council Regulation (EU) No 204/2011 adopted on 2 March 2011 (see here and here). Billions more are thought to have been frozen in other jurisdictions throughout the world.

With such an enormous body of wealth frozen in Europe, the United States and elsewhere, what is the position of individuals who have been injured in the violence, past and present, for which the Libyan state or individuals within its senior leadership are alleged to bear responsibility? Is it possible that any of the funds now frozen could be used to satisfy a claim for reparation in respect of such responsibility, assuming it could be established?

Read the rest of this entry…

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Security Council Adopts Resolution 1970 (2011) with respect to Lybia

Published on February 27, 2011        Author: 

Yesterday the UN Security Council unanimously adopted Resolution 1970, whereby it (1) imposed an arms embargo on Lybia; (2) imposed targeted sanctions, including travel bans and asset freezes, on high-level persons in the Lybian regime; (3) and referred the situation in Lybia to the International Criminal Court. This is the second UNSC referral to the ICC, the first after Darfur and the first to be passed unanimously. The full text of the resolution is available here, and a UN press release can be found here.

The resolution also makes several notable findings, such as that the ‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’; it also requests Lybia to respect both human rights and IHL, which indicates that the UNSC considers there to be an armed conflict in Lybia, and that IHL and human rights apply in a complementary fashion (this is of course not the first time that the Council has said something similar).  Notably with regard to the ICC referral, as with Darfur the resolution does not expressly say that Gaddafi will not be entitled to head of state immunity (assuming that the ‘head of the revolution’ is indeed a head of state under international law), even though that inference may be reasonably drawn – that issue might of course become moot if Gaddafi is actually toppled, which is perhaps more likely than not.

As for the targeted sanctions regime, like with the terrorist sanctions regime before it there is very little here with regard to guarantees of due process for the listed persons. Will the Gaddafis, led perhaps by LSE-PhD holding Saif (who may or may not had plagiarized his PhD on human rights and global governance), follow the bright example of the late Saddam Hussein and file an application with the European Court of Human Rights to protect their (presumable) Swiss millions? Bearing in mind the manifest deficit in the dictatorial psyche when it comes to self-irony, I wouldn’t put it past them.

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Duality of government in Côte d’Ivoire

Published on January 4, 2011        Author: 

 Dr. Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam. He is  also Guest Professor of International Humanitarian Law at the University of Louvain in Belgium and Senior Editor of the Leiden Journal of International Law.

The current distressful situation in Côte d’Ivoire is pitting two warring factions against one another, each of them claiming to be the legitimate authority entitled to act and speak on behalf of the State. Such a duality of government is, regrettably, far from being unprecedented and raises some legal issues which are not unknown to international lawyers.

A sketch of the facts

The eligibility of Alassane Ouattara – President of the Rally of the Republicans (RDR) whose popular support lies mainly in the north of the country, former Prime Minister of Côte d’Ivoire and a former IMF managing director – to run for office has been a bone of contention in the political scene in Côte d’Ivoire for more than a decade. Indeed, several key political figures began, in the mid-nineties, to make use of the loaded argument of ‘Ivoirité’, especially following the 1995 electoral code barring candidates from taking part in the national elections if either of their parents were of a foreign nationality and if they had not lived in Côte d’Ivoire for the preceding five years – a stipulation which had been perceived by many as meant to exclude the popular Ouattara who was said to be of Burkinabé (i.e. Burkina Faso) origin. After a coup d’Etat in 1999, a new Constitution in 2000, a civil war between a government-controlled south and a rebel-held north, a painstaking peace process between the insurgency led by Guillaume Soro and Laurent Gbagbo in power in Abidjan, a unity government and several postponements of the last round of elections in which Ouattara had eventually been allowed to participate, the severe tensions that had beset the country over the last decade came again to a head in the aftermath of the 28 November second round of the presidential elections. Indeed, on 2 December 2010, the Independent Electoral Commission (hereafter CEI) announced the provisional results according to which Ouattara had won the election with 54% of the vote. Gbagbo claimed that the elections had been rigged by the former rebels and the results were invalidated by the President of the Constitutional Council which declared Gbagbo the winner.

Recognition of Ouattara as the legitimate head of Côte d’Ivoire

The international community was very prompt to endorse the position of the CEI and recognize Ouattara as the legitimate leader of Côte d’Ivoire. Although many States still profess that they do not officially recognize governments, it has long been demonstrated that such a political claim has never entailed an actual abandonment of the practice of recognition of governments but rather a toning down of the solemnity with which new governments are recognized. Situations of duality of government, as that in Côte d’Ivoire, makes this claim even less sustainable, for States around the world, and especially those having strong relations with – and interest in – the country, inevitably need to determine whom they will speak to and thus who they see as being in charge. Read the rest of this entry…

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Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU

Published on November 16, 2010        Author: 

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter. Read the rest of this entry…

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ECHR Grand Chamber to Hear Case Challenging Legality of UN Security Council Sanctions

Published on October 24, 2010        Author: 

The Grand Chamber of the European Court of Human Rights (ECHR) has been asked to decide a case which challenges the legality of national measures implementing Security Council measures taken against persons associated with the Taleban and Al Qaeda. The chamber to which the case – Nada v. Switzerland (application no. 10593/08) – was  originally allocated has now relinquished jurisdiction in favour of the Grand Chamber. The case is brought by Mr Nada, an Italian national, who is on the list of persons subject to sanctions under UN Security Council Resolution 1267 (1999) and who lives in an Italian municipality that is an enclave within Switzerland. He is unable to leave the municipality as Switzerland will not allow him to enter or pass through the country. He argues that this is in breach of his rights under the European Convention on Human Rights. The facts of the case and the complaint are set out in the ECHR press release (see here):

The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.

On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.

Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.

On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.

On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.

However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.

Complaints and procedure

Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8. Read the rest of this entry…

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Iraq Inquiry to Publish Submissions on International Law

Published on October 22, 2010        Author: 

The Chilcott Committee of Inquiry established by the UK government to consider the Iraq war has announced that it will publish the submissions it received analysing the legal arguments relied on by the UK for the use of force in Iraq. The announcement of its website reads as follows:

In June 2010, Sir John Chilcot issued an open invitation for International Lawyers to give their analysis of the legal arguments relied upon by the UK Government as the legal basis for military intervention in Iraq. The deadline for submissions was on 13 September 2010; around 35 submissions were received. Those submissions which addressed the issues raised in Sir John’s invitation will be published with the Inquiry report.

Some of the submissions to the inquiry, including a submission drafted by Marko and I and signed by others (see here), have already been published by the Guardian on its Legal Document Store.

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Submissions to the UK Iraq Inquiry on the Legality of the Iraq War (Updated)

Published on October 1, 2010        Author: 

As reported here, this summer the UK’s inquiry into the Iraq War (the Chilcott Inquiry) invited submissions analysing the arguments relied on by the UK government as the legal basis for the war. The deadline for making those submissions was extended from July to September 13. The inquiry reserved the right to publish submissions made to it. However, it is now nearly 3 weeks since that deadline passed and the Inquiry has not yet published any of the submissions. The other evidence given to the committee of inquiry is available on its website and one important contribution of the inquiry is the declassification and release of many documents which were previously confidential. As has been discussed on this blog before (see  here here, and here) many of those documents give fascinating insight into the process by which the government sought and received legal advice relating to the use of force. It would be anamalous if the inquiry fails to publish evidence received from international lawyers on this critical issue  and I suspect that they will be published in some form at some point.

An article in the Guardian newspaper yesterday states that over 30 submissions were received by the inquiry on the legal arguments. The article (“Blair’s case for Iraq invasion was self-serving, lawyers tell Chilcot inquiry”) begins by stating that:

“The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.

A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process . . .”

The article quotes from submissions made by Ralph Zacklin (former UN Assistant-Secretary General for  Legal Affairs), by Philippe Sands and from submissions drafted by Marko Milanovic and I. The submission drafted by Marko and I was signed by 23 international lawyers from academia and private practice. The full text of that submission can be found below the fold. (UPDATE: You can find all three submissions referred to on the Guardian website here)

Given that the Inquiry made it clear that submissions were to be restricted to 3000 words we had to make choices as to the issues we wished to comment on. We decided not to attempt to revisit in full the against the use of force but did make the argument the argument put forward by the US and UK regarding the revival of previously given authorizations to use force undermines the UN collective security system. Our main focus, however, was on the arguments put forward by Lord Goldsmith (in his testimony to the committee) to justify the change in his legal advice. In our view, those arguments, even assuming that the UK’s revival argument was valid, UN Security Council Resolution 1441 would fail to satisfy that argument. In thinking that it did, Lord Goldsmith was moving from the UK’s revival argument to the US’ version of the argument which (as Lord Goldsmith himself accepted) was fundamentally different from the UK’s and which had been regarded even by the UK as an untenable legal position. Read the rest of this entry…

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