posted on Thu 26 Mar 2015 6:43 PM
Adoption of Two Resolutions on Libya

Tomorrow (27 March), the Security Council apppears to be ready to adopt a resolution extending the mandate of the UN Support Mission in Libya (UNSMIL) until 15 September 2015 and the mandate of the Panel of Experts assisting the 1970 Libya Sanctions until 15 March 2016. A resolution focusing on countering terrorism in Libya is also scheduled to be adopted tomorrow. At press time the counter-terrorism resolution was still under silence but members were not expecting silence to be broken.

Resolution renewing the mandate of UNSMIL and the Panel
When UNSMIL’s mandate and the measures on vessels transporting crude oil illicitly exported from Libya were about to expire earlier in the month, the Council decided to do a technical rollover of the UNSMIL mandate and the illicit oil export measures until 31 March.

The reasons for delaying the adoption of a more substantive resolution were to allow the mediation led by Bernardino León, the Special Representative of the Secretary-General, to yield some results before changing UNSMIL’s mandate and to diffuse the momentum around calls from Libya and Egypt (echoed in the Council by Jordan) for a lifting of the arms embargo on the government.

The draft was circulated by the UK on 23 March and Council members met twice to negotiate the text, which was put under silence until this morning. It generally follows the recommendations from the Secretariat’s strategic assessment of the UN presence in Libya (S/2015/113).

The mission’s mandate is therefore refocused on providing support to the Libyan political process and security arrangements through mediation as an immediate priority. In addition, UNSMIL’s mandate will also, within operational and security constraints, focus on human rights monitoring and reporting; support to key institutions (such as the electoral commission, the central bank or the Constitutional Drafting Assembly); support for securing uncontrolled arms; support for provision of essential services and delivery of humanitarian assistance as well as support for the coordination of international assistance.

Following the Secretary-General’s recommendations, the draft resolution also recognises that the security situation requires a reduction in the size of the mission, but requests the Secretary-General to maintain the necessary flexibility and mobility to scale-up UNSMIL staffing and operations at short notice.

In terms of sanctions, the draft consolidates the existing sanctions-related resolutions on Libya, including on crude oil illicitly exported from Libya, assets freeze and travel ban on former Gaddafi-era regime officials and the arms embargo. The draft also provides more detail on the designation criteria for those undermining the successful completion of Libya’s political transition, which includes, among others, human rights and humanitarian law violations; attacks against ports, Libyan state institutions or installations and foreign missions; violations of the arms embargo and acting for, on the behalf of, or at the direction of a listed individual or entity.

It seems that while there was general agreement on most of the text, there were two key issues during the negotiations that caused some difficulty. One was a paragraph calling on member states to inspect on the high seas, in accordance with international law, vessels and aircraft bound to or from Libya, if the state concerned had reasonable grounds to believe that it was a violation of the arms embargo. Even though the provision did not constitute a legal obligation and flag states were asked to cooperate, a few Council members had issues with the reference to the high seas because of its broad legal scope in terms of the law of the sea. Despite an attempt by the penholder to add more geographically specific language and refer to the “Mediterranean waters off the coast of Libya”, the final draft does not include any reference to inspections beyond the territorial waters.

The second controversial issue was how to refer to the 10 December 2014 ICC decision on Libya’s non-compliance with the Court on the case against Saif al-Islam Gaddafi. In this decision the matter, which had been referred to the ICC by the Council in resolution 1970, was referred back to the Council. Even though the initial draft noted the decision with concern, it seems some Council members thought that was too negative and pushed for a more neutral formulation. The final draft simply notes the decision without specifying that it was a finding of non-compliance or that it was related to the case against Gaddafi. Given that the ball is now in the Council’s court, a stronger formulation might be needed if the Council wants to pursue the accountability efforts it started by referring the matter to the ICC in February 2011.

Resolution on Countering Terrorism in Libya
Following the 15 February beheading of 21 men, including 20 Egyptian Coptic Christians, in Sirte by a Libyan branch of the Islamic State of Iraq and al-Sham (ISIS), there was a Council meeting with the participation of León alongside the foreign ministers of Libya and Egypt among other representatives. In that meeting both foreign ministers called for the lifting of the arms embargo on the government in order to fight against ISIS in Libya. In late February, Jordan circulated a draft resolution lifting the arms embargo for the government, but it was met with resistance by most Council members who were worried about the impact of lifting the arms embargo on the dynamics on the ground, as well as how it would reflect on their support for a political solution to the crisis in Libya. The final report by the panel of experts assisting the 1970 Libya Sanctions Committee recently highlighted how arms transfers to Libya, exempted by the Committee or not, have contributed to the consolidation of militias on the ground (S/2015/128).

The draft resolution that will be put to a vote tomorrow, drafted by Jordan and Egypt, reaffirms previous Council decisions on counter-terrorism and expresses grave concern about ISIS and groups that have pledged allegiance to ISIS such as Ansar al-Sharia in Derna and Benghazi. The draft recognises how the threat posed by foreign terrorist fighters requires comprehensively addressing underlying factors, including by preventing radicalisation to terrorism, stemming recruitment, inhibiting foreign terrorist fighters’ travel, disrupting financial support to foreign terrorist fighters or countering violent extremism, which can be conducive to terrorism, among other measures. The draft also encourages the submission of listing requests to the 1267/1989 Al-Qaida Sanctions Committee.

The draft calls on the Libya Sanctions Committee to expeditiously consider exemption requests for the transfer or supply of arms and related materiel to the Libyan government for its use against ISIS. (Earlier this month, eight Council members—Angola, Chile, France, Lithuania, New Zealand, Spain, the UK and the US—put a hold on an exemption request to the arms embargo submitted by the Libyan government to import 150 tanks, two dozen fighter jets, seven attack helicopters and other weapons and ammunitions over concerns about their final use.)

Once the call for lifting the arms embargo for the government was removed from the earlier draft, negotiations largely focused on ensuring that the counter-terrorism-related language was consistent with the Council’s counter-terrorism framework. In this respect, some Council members argued that language in an operative paragraph calling on member states to combat by all means threats to international peace and security caused by terrorist acts in Libya could be perceived as encouraging or endorsing actions taken by countries in the region to support Operation Dignity and the Tobruk-based government, which has largely characterised its war efforts as a fight against terrorism.

Also, at least one Council member was not comfortable with possibly over-exaggerating ISIS’ influence over some groups in Libya by including a reference to “groups that pledged allegiance to ISIS” being responsible for committing terrorist acts in Libya. Some Council members questioned whether these groups were in fact operationally linked or if they are pledging allegiance as part of a branding strategy.

Aware of the political significance of the resolution, it seems that Council members had differences over how to refer to the peace talks and the UN-brokered mediation efforts (one operational paragraph was moved to the preamble).

Finally, the draft directs the Analytical Support and Sanctions Monitoring Team of the 1267/1989 Sanctions Committee, to report to the 1267/1989 Committee on the terrorism threat in Libya.