Tuesday, March 8, 2011

A couple of notes on arming Libyan rebels

Josh Rogin is reporting this morning that P.J. Crowley has dismissed proposals to arm Libyan rebels as "not a legal option." Here's more:
"It's very simple. In the U.N. Security Council resolution passed on Libya, there is an arms embargo that affects Libya, which means it's a violation for any country to provide arms to anyone in Libya," State Department spokesman P.J. Crowley said on Monday.
Crowley denied reports that the United States had asked Saudi Arabia to provide weapons to the Libyan opposition, and also denied that the United States would arm opposition groups absent explicit international authorization.
Pressed by reporters to clarify whether the Obama administration had any plans to give arms to any of the rebel groups in Libya, Crowley said no.
"It would be illegal for the United States to do that," he said. "It's not a legal option."
Crowley's blanket statement seemed to go further than comments on Monday by White House spokesman Jay Carney, who said, "On the issue of ... arming, providing weapons, it is one of the range of options that is being considered."
Crowley maintained that U.N. Security Council Resolution 1970, which imposed international sanctions on Libya that included an arms embargo, applied to both the Qaddafi regime and the rebel groups.
"It's not on the government of Libya: It's on Libya," he said.
First: I don't know anything about U.N. Security Council Resolutions. I don't know on whom they're binding, I don't know the definitions they're operating under, and I don't know to whom the terms refer. That said, the language of the resolution (pdf) seems pretty clear:
Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories, and decides further that this measure shall not apply to:
(a) Supplies of non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance or training, as approved in advance by the Committee established pursuant to paragraph 24 below;
(b) Protective clothing, including flak jackets and military helmets, temporarily exported to the Libyan Arab Jamahiriya by United Nations personnel, representatives of the media and humanitarian and development works and associated personnel, for their personal use only; or
(c) Other sales or supply of arms and related materiel, or provision of assistance or personnel, as approved in advance by the Committee;
Furthermore: what I do know is U.S. arms transfer regulations. And in those, unless otherwise specified, embargoes and other limitations on the transfer of defense articles pertain to all persons, corporations, business associations, partnerships, societies, trusts, or other entities, organizations, or groups, including governmental entities. (This according to the International Traffic in Arms Regulations, which are published by the Department of State and govern the transfer of defense articles and services to non-U.S. parties.) Particular end-users can be subject to certain specific transfer restrictions, but the ITAR elaborates policy determinations and embargoes on export to particular countries. Export, in this case, means transfer or disclosure to a foreign person. So if you show some documents containing technical data to a foreign national at your office in DC, that constitutes an export. All of which is a long way of saying that U.S. arms transfer restrictions on Libya pertain to all of Libya and all Libyan persons, not just the Libyan government.

And here's what Crowley didn't mention: UNSCR 1970 didn't impact the U.S. position on arms exports to Libya one whit. Here's ITAR 126.1(k) (click here for Part 126 in pdf form):
Libya. It is the policy of the United Sates [sic] to deny licenses, other approvals, exports or imports of defense articles and defense services destined for or originating in Libya except, on a case-by-case basis, for:
(1) Non-lethal defense articles and defense services,
(2) Non-lethal safety-of-use defense articls (e.g., cartridge actuated devices, propellant actuated devices and technical manals for military aircraft for purposes of enhancing the safety of the aircrew) as spare parts for lethal end-items.
For non-lethal defense end-items, no distinction will be made between Libya's existing and new inventory.
The short version? U.S. arms exports to Libya were already blocked by U.S. policy and regulation. These can be changed in exigent circumstances, of course, but they've now been bolstered (or one could even say obviated) by the provisions of the UNSCR.

(A P.S. while we're on the subject: Josh is one of what seems to me to be a vanishingly small number of national security journalists who takes the time not only to at least briefly research the law and policy issues that underpin his reporting, but to cursorily address them in his stories. Presumably the journalistic convention of not doing this derives from the assumption that the average reader is either disinterested in trivia or too stupid to understand the details of the background; as a result, I particularly appreciate those who go a little deeper.)

4 comments:

  1. Gulliver--suffice it to say, you're right overall. I've done a lot of work on UN targeted sanctions and arms embargoes and basically while this resolution is binding (it was imposed under Ch. VII if the Charter, which of course we have ratified), it does not contain a relevant exemption to permit this type of support to rebels. Here in the US, this type of resolution normally triggers first an executive order and second relevant legislation (though that doesn't appear to be necessary, sometimes UN sanctions are only catching up with US). Hope this helps clear things up.

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  2. A couple small notes: ratification status of the UN Charter is irrelevant. It is well-established as customary international law, and thus binding on all states, whether they like it or not. Of course, to paraphrase Hobbes, laws without enforcement are but words.

    Secondly, neither sanctions nor a no fly zone kept the US from shipping weapons to the Bosnian Muslims back in the 1990s.

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  3. It would be too much to hope for that anyone who offers them a shipload of Khrisants and MANPADS (or Javelin and Starstreak) would also explain in advance how they intend to collect them up at the end of hostilities..

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  4. Anon--those things are true. I think it's worth explaining nonetheless because readers may not realize that this is true of the UN Charter, in fact they don't know what the Charter says...I can't tell you how many stability operations "experts" I know who don't know the difference between chapters 6 and 7 or routinely get them confused. It's depressing.

    As for our shipping weapons, yes but that's a separate point from this discussion Gulliver was having on whether or not legislation permits certain things or not.

    Lil

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