Turtle Bay

How the U.S. sought, but failed, to get a green light for military action to protect civilians, installations in Libya

While the U.N. Security Council spent last week debating sanctions and the pursuit of an investigation into crimes against humanity in Libya, the U.S. delegation had another idea on its mind. U.S. diplomats sought to insert language into the U.N. resolution on Libya that would have raised the possibility of an international military intervention, two ...

While the U.N. Security Council spent last week debating sanctions and the pursuit of an investigation into crimes against humanity in Libya, the U.S. delegation had another idea on its mind. U.S. diplomats sought to insert language into the U.N. resolution on Libya that would have raised the possibility of an international military intervention, two Security Council members familiar with the discussions told Turtle Bay.

The U.S. amendment called for authorizing member states, working with the cooperation of the United Nations, to use "all means necessary to protect civilians and key installations." In the diplomatic terminology of U.N. resolutions, the phrase "all means necessary" has traditionally served as a code for military action.

The debate over the use of force unfolded behind closed doors last week as the Obama administration began exploring options for ensuring the delivery of humanitarian assistance to Libya. U.N. Secretary General Ban Ki-moon will arrive in Washington on Monday to discuss international plans to address the worsening violence in Libya. Over the weekend, the U.S. held talks with Europe and other countries to explore the possibility of establishing a no-fly zone over Libya, according to a report in the New York Times.

One U.S. official, while declining to comment on confidential negotiations over the Security Council resolution, cautioned that the U.S. diplomatic effort in New York was purely humanitarian. "Our intention on any of the language that had to deal with this particular issue was humanitarian in nature. None of this has to do with putting U.S. boots on the ground."

The United States had hoped its amendment would be included in the resolution that was eventually unanimously adopted on Saturday by the U.N. Security Council resolution, which imposed a range of financial and military sanctions on the Libyan leader Moammar Qaddafi and his closest associates, and authorized an investigation into crimes against humanity. The U.S. had conditioned its support for the sanctions resolution on the inclusion of another provision that ensured that no foreign nationals inside Libya would be subject to prosecution by the International Criminal Court, according to France’s U.N. ambassador, Gerard Araud.

The resolution’s primarily goal is immunize non-Libyan nationals whose governments, like the United States, are not members of the criminal court in the event that they participate in a U.N. authorized operation in Libya. No such operation has been established, but the resolution suggests that the Western drafters of the resolution are considering it

The decisive provision was included in the final resolution at the insistence of "one country," Araud said Saturday night. "It was absolutely necessary for one country to have that, considering its parliamentary constrains. It was a red line for the United States, it was a deal breaker. This is the reason why we accepted this unanimously."

The U.S. provision allowing for the use of force, however, was shelved. Instead, Britain, which led the negotiations, proposed somewhat more cautious language, but still sweeping enough to allow Western powers to enter Libya with force. It proposed a provision authorizing states to "adopt all measures necessary" to enable the delivery of humanitarian assistance.

Western diplomats said the language was not intended to provide a legal basis for a military invasion in Libya, and that the U.S. and its European partners have no intention of entering the fighting in Libya. But they said they hoped it would provide their forces with some flexibility in the event that they had to go into Libya to secure a humanitarian relief operation or to ensure the delivery of medical supplies.

The dilemma is not entirely theoretical. Britain has docked the HMS Cumberland vessel at the port in renegade city Benghazi to evacuate British and other foreign nationals. The British RAF has also used Hercules aircraft in Libya to collect foreign oil workers. U.S. Secretary of State Hillary Rodham Clinton, meanwhile, said on Saturday that the U.S. and its allies are exploring ways to support humanitarian assistance operations in Libya. They have not and are not likely in the future to secure approval from Qaddafi’s government.

But the effort to secure legal cover for action inside Libya encountered implacable opposition from Russia. Russia’s reservation over the Western approach dates back to the 2003 U.S. and British invasion of Iraq. In that case, the United States invoked the breach of a resolution twelve years after the fact – namely, the 1991 ceasefire resolution that ended the first Persian Gulf War by imposing a set of cumbersome disarmament obligations on Iraq.

"Resolution 687 imposed a series of obligations on Iraq, including, most importantly, extensive disarmament obligations, that were conditions of the cease-fire established under it," John Negroponte wrote in a letter to the U.N. Security Council after the U.S launched its military invasion. "Iraq continues to be in material breach of its disarmament obligations under resolution 687." (h/t to @lailaokabbaj for locating the Negroponte letter.)

Russia’s U.N. ambassador at the time, Sergei Lavrov, who now serves as Russia’s foreign minister, never forget the Anglo-American maneuver. He has insisted that all subsequent sanctions resolution — all of which are adopted under Chapter 7 of the U.N. Charter, the article that authorizes both sanctions and military force — include a provision that expressly prohibits the use of military force.

The latest negotiations on the Libyan resolution were no different. In order to ensure Russian support for the resolution, Britain agreed to include a provision that explicitly prohibits the use of force to enforce the council’s demands. "The legal trick that the allies tried to pull before the Iraq invasion is now tying their hand to intervene in Libyan," said Carne Ross, a former British diplomat who oversaw negotiations on Iraq before the war.

Correction: An earlier version of this article mistakenly claimed

that Resolution 1970 would shield large numbers of foreign mercenaries operating on behalf of Qaddafi from possible prosecution by the International Criminal Court. However, it does not require countries that have not joined the ICC to surrender suspected criminals to the court if they flee Libya.

Follow me on Twitter @columlynch

Colum Lynch is Foreign Policy’s award-winning U.N.-based senior diplomatic reporter. @columlynch

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