posted on Thu 10 Sep 2015 10:52 AM
Resolution Renewing UNSMIL’s Mandate

This afternoon (10 September), the Council is set to adopt a resolution renewing the current mandate of the UN Support Mission in Libya (UNSMIL) until 15 March 2016. The UK, the penholder on Libya, circulated the draft to Council members last week. After two negotiating sessions and bilateral discussions, the draft was put under silence until this morning and is now in blue.

UNSMIL’s mandate was revised in March in accordance with recommendations from the Secretariat’s strategic assessment of the UN presence in Libya (S/2015/113). This resulted in the mandate focusing as an immediate priority on support to the Libyan political process and security arrangements through mediation and good offices. In addition, within operational and security constraints, UNSMIL’s mandate focuses on human rights monitoring and reporting; support to key Libyan institutions; 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.

While no Council member challenged the view that the mandate should not be changed until a government of national accord is formed, there were some issues that were difficult to agree upon.

One of the most controversial issues was whether to reference Chapter VII, given the fact that the Council is not establishing new legal obligations (such as sanctions) and UNSMIL is a special political mission. One Council member insisted on a reference to Libya as a threat to international peace and security, in keeping with resolution 2213 of 27 March, which renewed UNSMIL’s mandate, as well as that of the panel of experts and the measures on vessels transporting crude oil illicitly exported from Libya. This was challenged by at least two Council members wary of the legal implications of such language. (Article 39 under Chapter VII gives the Council the authority to determine if there is a threat to the peace and make recommendations to maintain or restore international peace and security.) The compromise, reflected in the final draft, is that there is no explicit reference to Chapter VII but the Council recalls its determination in resolution 2213 that the situation in Libya constitutes a threat to international peace and security.

Another difficult issue was whether to refer to planning assistance for a government of national accord and for security arrangements in the operative paragraphs regarding UNSMIL’s mandate. One Council member rejected this reference on the grounds that a government of national accord has yet to be formed, and instead proposed language in a preambular paragraph that was incorporated into the final draft recognising the need for such planning. (UNSMIL is already participating in discussions with France, Germany, Italy, Spain, the US and the UK, along with the EU, on security assistance to Libya, if requested by a future government of national accord.)

Furthermore, while Council members agreed on the need to include language on the protection of civilians, differences arose in how to refer to the responsibility of the different parties to the conflict (i.e, whether to emphasise the responsibility of the state or of all parties to the conflict.) It appears that the text ultimately agreed upon calls on “all parties to armed conflict to take all appropriate steps to protect civilians.”

As in the past, how to refer to Libya’s non-compliance with the ICC was a contested issue. In the end, the draft recalls the Council’s decision to refer the situation in Libya to the ICC in 2011 and notes the 30 July request of the Prosecutor to the Pre-Trial Chamber that Libya to immediately surrender Saif Al-Islam Qaddafi to the ICC.
Other amendments that were made to the draft during the negotiations did not alter the mandate. For example, language was added referring to the effective participation of women in all activities relating to the democratic transition, welcoming the efforts of all participants in the UN-facilitated Libyan political dialogue, and expressing grave concern at “the recent proliferation of, and endangerment of lives by, the smuggling of migrants in the Mediterranean Sea, in particular off the coast of Libya.”

Regarding this last issue, it appears that EU Council members are currently discussing with non-EU P5 members a draft resolution authorising EU NAVFOR Med to intercept boats used by human trafficking networks on the high seas of the Mediterranean.