In the rush to curtail Muammar al-Qaddafi‘s military capacity to attack civilians in Libya, the U.N. Security Council voted unanimously on February 26 to impose a comprehensive arms embargo on Libya. But the measure also unwittingly impeded the effort of the Western-backed rebels to fight Qaddafi’s forces.
Paragraph 9 of Resolution 1970 required all U.N. members to "immediately take the necessary measures" to bar the sale, supply or transfer of weapons, mercenaries, or other supplies to Libya. The arms embargo, which was adopted before the rebels had emerged as a potential threat to the regime, included no exemptions for Qaddafi’s foes.
Ever since the passage of that first resolution, government lawyers from the United States, Britain and France have been looking to see if they can find a way around it, according to U.N.-based diplomats. The United States may have now found one.
The legal debate centers on a little noticed clause in Resolution 1973 — adopted by a divided council on March 17 — which authorized the use of force against Libya to protect civilians. It may also have circumvented the arms embargo.
Paragraph 4 of that resolution provides sweeping authority to U.N. member states "to take all necessary measures, notwithstanding paragraph 9 of resolution 1970, to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya." The notwithstanding clause, which was proposed by the United States, provides for an unspecified exemption from the embargo, according to diplomats.
During the final negotiations on Resolution 1973, Portugal’s U.N. ambassador, José Filipe Moraes Cabral, the chairman of the newly established Libya sanctions committee, asked Susan E. Rice, the U.S. ambassador to the United Nations, a series of questions about the scope of the military force provision in the resolution.
Rice sought maximum flexibility to allow allied forces to enforce their mandate. For instance, she opposed a proposal to preclude the deployment of ground troops in Libya. Rice argued that while the U.S. and its allies had no plans to launch a ground invasion in Libya, they might need to send search-and-rescue teams into the country if one of their warplanes were shot down.
But Rice provided a non-committal response to a question about the notwithstanding paragraph 9 clause, saying simply "the language is not specific," according to a council diplomat. Council diplomats say Rice gave no hint that the clause would be used as a pretext to arm the rebels. "The clear perception of the large majority of the council is that it would not open the door to arming the rebels," the council diplomat said.
U.S. officials disputed the claim that the US was not forthcoming with the council about the possible arming of rebels. "Resolutions 1970 and 1973, read together, neither specify nor preclude such an action," said Rice’s spokesman, Mark Kornblau.
The issue was first broached in public on Monday, when a British MP, William Cash, asked the British Prime Minister, David Cameron, whether his government believed the resolution opened the door to arms supplies. "Does not that provide an avenue, through a committee of sanctions of the United Nations, to allow arms to be supplied, as sub-paragraph (c) of paragraph 9 appears to suggest, to those resisting Gaddafi in Benghazi and thereabouts?" he asked.
Cameron sought to downplay that prospect. "I think I am right in saying that the resolution is clear: there is an arms embargo, and that arms embargo has to be enforced across Libya," Cameron said. "The legal advice that others have mentioned, and that we believe some other countries were interested in, suggesting that perhaps this applied only to the regime, is not in fact correct." Cameron didn’t say which other countries. But diplomats say it was the United States and France.
U.N. diplomats say the exemption would technically provide a legal basis for limited supplies of weapons to rebels, as long as they could make the case that they were needed to forestall a government attack against civilian targets. But they warned that it could poison the U.S. relationship with other council members, who may feel they have been misled about the intent of the language.
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