The Guardian & The Lex Specialis & MSN News – 2011-07-05 01:41:00
NATO Reviews Libya Campaign after France Admits Arming Rebels
Nick Hopkins / The Guardian
LONDON (June 29, 2011) — NATO was today urgently reviewing the conduct of its military campaign in Libya after France admitted arming rebel fighters in apparent defiance of the UN mandate.
The revelation surprised officials in NATO’s headquarters in Brussels and raised awkward questions about whether the French had broken international law — UN resolution 1973 specifically allows NATO nations to protect civilians in Libya, but appears to stop short of permitting the provision of weapons.
NATO has consistently said it would not provide arms to rebel commanders, saying it was beyond its remit. But that pledge came under scrutiny after military chiefs in Paris confirmed that French planes had dropped machine guns, rocket propelled grenades and anti-tank missiles to rebels in the western Nafusa mountains.
A report in Le Figaro said the French had parachuted “large amounts” of munitions to help the rebel push on the capital Tripoli earlier this month.
This was confirmed by the armed forces spokesman Thierry Burkhard. He said the French had initially provided humanitarian aid including water, food and medical supplies to civilians in the region who were under seige from regime forces.
“There were humanitarian drops because the humanitarian situation was worsening and at one point it seemed the security situation was threatening civilians who could not defend themselves,” Burkhard told Reuters.
“France therefore also sent equipment allowing them to defend themselves, comprising light weapons and munitions.” The munitions were “self-defence” assets, he said.
It appears France did not inform any of its NATO allies about the weapons drop, or NATO headquarters, where officials were today desperately seeking clarification from Paris about exactly what it had done and why.
NATO was also trying to establish what legal basis France had for taking this apparently unilateral action. Officials expressed surprise over what had happened and insisted its military approach had not changed.
“NATO knows what its mission is and that the mandate allows certain things,” said a source.
France’s admission highlights tensions within NATO over the conduct of the campaign, and will raise new questions over whether the coalition should be doing more to hasten Gaddafi’s downfall.
Some countries are privately likely to welcome any sign of a more pro-active effort to end Gaddafi’s 41-year rule.
The Italian foreign minister Franco Frattini has previously claimed that the UN resolution should not prohibit providing weapons to the rebels, saying this could be “morally justified.”
In a further sign of growing frustration, the Dutch defence minister Hans Hillen today criticised the NATO campaign, saying those allies who had thought bombing would force Muammar Gaddafi to step down “naive”. He also insisted that NATO’s mission should be confined to its mandate to protect civilians.
“If it changes into driving out a dictator, then the question is whether NATO should accept this as a new task. Libya is too big and all the military goals too big. The solution should be a political solution.”
The Ministry of Defence said British forces had not supplied any weapons to to the rebels, though the foreign office admitted the UN resolution could be interpreted in different ways by different countries.
“Our position is clear,” a spokesman said. “There is an arms embargo in Libya. At the same time, UN resolution 1973 allows all necessary measures to protect civilians and civilian populations from the threat of attack. We think that the UN resolution allows in certain limited circumstances defensive weapons to be provided. But the UK is not engaged in that. Other countries will interpret the resolution in their own way.” [Only us NATO gangsters are allowed to kill civilians, meaning the ones who support Gaddafi, ’cause they don’t count.]
The rebels are known to have received some arms from Qatar. But speaking on Tuesday, after a meeting between French President Nicolas Sarkozy and rebel chief Mahmoud Jibril, National Transitional Council Information Minister Mahmoud Shammam said it had not asked for any further military assistance.
Is it Lawful for Coalition Forces
To Arm the Libyan Resistance?
The Lex Specialis
(April 5, 2011) — 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 canâ€™t supply arms to rebels.” The paper also quotes Professor Nicholas Grief, who “said that to him the 17 March resolution  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.
UK May Yet Arm Libyan Resistance
LONDON (March 30, 2011) — Britain has not ruled out arming opposition forces in Libya, Prime Minister David Cameron said as rebel troops fell back under an onslaught from Muammar Gaddafi’s military.
Mr Cameron stressed that no decision had yet been taken to supply weapons to the forces involved in the uprising against the dictator’s 42-year rule.
But his comments in the House of Commons appear to reflect growing international concern that, even with the benefit of allied air strikes and a no-fly zone which have crippled Gaddafi’s air power, the opposition may be outgunned by the regime’s better equipped and trained ground forces.
Meanwhile, Gaddafi’s foreign minister is said to have flown to Britain. Musa Kusa, one of the dictator’s closest allies, reportedly left Tunisia bound for London on Wednesday afternoon.
Tunisia’s official TAP news agency previously reported that Mr Kusa had entered the country, although no reason was given for his move. A Foreign Office spokesman declined to say whether it was aware of the development.
Foreign Secretary William Hague had earlier announced that five diplomats from the Libyan Embassy in London had been expelled from the UK because they “could pose a threat” to national security. Downing Street said the five individuals had “a very strong allegiance to the Gaddafi regime” and were known to have been “putting pressure on Libyan opposition and student groups in the UK”.
Gaddafi’s troops on Wednesday recaptured the strategic oil town of Ras Lanouf and were pressing at the gates of Brega, after pushing rebels back from Sirte and Bin Jawwad in a reversal of opposition gains over the weekend.
Last month’s United Nations Security Council resolution 1970 imposed a blanket arms embargo which, until now, has been taken to apply to both the Gaddafi regime and the opposition.
But when asked at Prime Minister’s Questions whether he was considering supplying weapons to the rebels, Mr Cameron said subsequent resolution 1973 “would not necessarily rule out the provision of assistance to those protecting civilians in certain circumstances”. He added: “We do not rule it out but we have not taken the decision to do so.”
Downing Street insisted Mr Cameron “has not changed his mind” on the issue.
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