Libya: UN Security Council resolution 1970 (2011), adopted Feb 26, 2011: Some quick comments

Here are some quick reactions to last night’s very interesting Libya resolution, adopted by the UNSC. I’m working off this text, marked provisional, but posted by the UK Mission (on Google docs!) as the “final” version (ok, this appears to be the final text but it’s still a mess!).  Over 12 hours after the vote, the UN still has not posted the final version on any of its innumerable sites, including the official Security Council site (not that I can find anyway).  So, it’s possible that there may be some changes to the text I am looking at.

 

In any case, there are some striking things about this resolution:

 

– Clear and early referral to the ICC (paras 4-8), including a demand that the ICC prosecutor brief the Council in two months’ time: this is remarkable.  This is I think (and Barbara Plett thinks too) the first time the Council has voted unanimously for ICC referral.  This resolution has also taken place very early in a conflict, only days after it began. In other words, the Council is moving in welcome fashion towards the preventive signalling required under the Responsibility to Protect doctrine (see my blog comment below). It is reacting almost as fast as news breaks of killing.   

– The second remarkable thing is that the Libya situation is clearly internal.  The Council may have denoted it as a “threat to international peace and security” in the preambular paragraphs (though I think this reference has been watered down in negotiation) and by putting the res under Chapter VII of the Charter, but to any outside observer it’s pretty clear that the conflict is confined within Libya’s borders, so far.  There is a clear and unambiguous reference to Responsibility to Protect in the preambular paras.  This is in my memory the first time that the Council has acted so quickly and so decisively on an internal situation.  I am very surprised that the Chinese, Indians etc went along with such clear language.  International public opinion seems to be moving them.  This is an important precedent too.

 

– Thirdly, on a more political note, this resolution is putting the Libyan regime in the freezer – big time.  The assets freeze, travel ban etc apply to named members of the regime.  These measures will be legally obligatory for all member states to impose – the resolution is under Chapter VII of the charter.  And the measures will be in place indefinitely.  These sanctions are not time-limited and will require a further positive vote of the Council to be lifted.  In other words, all P5 will have to agree not to veto, plus 9 non-permanent positive votes will be required.  Moreover, the criteria for sanctions lift are left very unclear – just a vague commitment to “review”.  What this means in practice is the total international isolation of members of the Gadhaffi regime indefinitely.  Great!

 

–  Added to this point above, all member states are invited to nominate individuals to whom sanctions should apply, because of their involvement in human rights abuse, attacks on civilians etc (paras 22, 23).  So if Libyans know of individual officers, police, politicians etc involved in attacks, they should take names and send them to the Security Council (an easy way might be to send them to the UK Mission, who coordinated this resolution – that’s my understanding – and are pretty efficient: in fact, on reflection I think the UN should set up an email address for Libyans to send in names: that needs to happen now!).

 

The resolution does not contain anything on No Fly Zones or other military measures.  There was no appetite at the UN whatsoever for such measures.  I am not sure in any case that they would necessarily be helpful, and might play into Gadhaffi’s hands.  The early drafts of the resolution contained language authorising “all necessary means” to permit humanitarian assistance – pretty broad language that could be interpreted to authorise military force to get “aid” in, or people out.  But that language was lost in negotiation, I suspect under Russian, Chinese pressure.  The Russians these days, post Iraq shenanigans, are very wary of allowing UK, US etc to claim legal authority for use of force with ambiguous language (SCR 1441 is branded on everyone’s memory).  Now, as in future I suspect, any such authorisation will only be agreed in narrow circumstances, and it will have to be absolutely explicit, openly negotiated and agreed.

 

One thing I cannot assess is the impact on the Libyan regime.  At this point, they are fighting for their survival so I doubt they care too much.  But they will now know that if they survive this bout of unrest, they will be heavily circumscribed in all that they do from now on, and will be international pariahs (and also, importantly, unable to restock their military equipment).  That’s a pretty clear message the UNSC sent last night – and it was unanimous.  I would have liked this resolution to have been tabled a few days earlier (as I argued in my Guardian oped a few days ago) when it was clear that the Libyan govt was using violence against its people.  Nevertheless, credit to the Brits, French etc who pushed this through.  Good work! I didn’t hear much about USUN’s influence (again) except complaints about how the US sought to water down the ICC language.  But this may be unfair.  It’s hard for outside observers to judge what went on during phone calls between capitals etc to get this resolution agreed as fast as it was.

 

There may be further comments later.

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