Peace, justice, and loopholes

The Security Council’s recent resolution on Libya imposed a travel ban on senior Libyan leadership. The travel ban was touted by U.S. and European officials as an essential element of a very tough resolution. But the fine print of the resolution includes a gaping hole: 16. Decides that the measures imposed by paragraph 15  above ...

By , a professor at Indiana University’s Hamilton Lugar School of Global and International Studies.

The Security Council's recent resolution on Libya imposed a travel ban on senior Libyan leadership. The travel ban was touted by U.S. and European officials as an essential element of a very tough resolution. But the fine print of the resolution includes a gaping hole:

The Security Council’s recent resolution on Libya imposed a travel ban on senior Libyan leadership. The travel ban was touted by U.S. and European officials as an essential element of a very tough resolution. But the fine print of the resolution includes a gaping hole:

16. Decides that the measures imposed by paragraph 15  above [the travel ban] shall not apply…

(c) Where the Committee determines on a case-by-case basis that an exemption would further the objectives of peace and national reconciliation in the Libyan Arab Jamahiriya and stablity in the region; or

(d) Where a State determines on a case-by-case basis that such entry or transit is required to advance peace and stability in the Libyan Arab Jamahiriya and the States [sic] subsequently notifies the Committee within forty-eight hours after making such a determination."

By my reading, that means that any state can decide to allow senior Libyan leaders to travel through their territory so long as that country decides that doing so advances peace and stability in Libya. Critically, the state itself rather than the Security Council makes that determination.  Moreover, the receiving state is not required to alert the Security Council until 48 hours after making that determination, by which time a senior official could be well hidden or long gone.

In the past, as in Sudan, the Security Council has allowed itself to make ad hoc exceptions to a travel ban, but my quick review doesn’t reveal a recent example of the Council allowing individual states to make exceptions based on their own calculation of whether doing so would produce peace and stability.

Indeed, the loophole is so large and obvious that it makes one wonder whether Council members are actually encouraging third states to coax Qadhafi and his coterie out of Libya. That wouldn’t be a crazy decision; keeping an exit route open might be the best way of avoiding prolonged bloodshed. But it’s certainly in tension with the way the resolution has been presented publicly. 

David Bosco is a professor at Indiana University’s Hamilton Lugar School of Global and International Studies. He is the author of The Poseidon Project: The Struggle to Govern the World’s Oceans. Twitter: @multilateralist

Tag: Law

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