Do as I say, not as I do

On Wednesday June 29, France confirmed that it parachuted arms, including guns and rocket-propelled grenades, to the Libyan rebels in the Nafusa Mountains. This arms transfer is a blatant violation of the arms embargo which was agreed to by the UN Security Council Resolution 1970 on February 26, 2011. The embargo placed on Libya is comprehensive and applies both to rebels and forces loyal to Muammar Gaddafi. The subsequent authorization of the use of force in UNSC resolution 1973 amends the February 26 resolution by calling on Members States to ensure strict implementation of the arms embargo through inspection of all sea vessels and planes bound for Libya believed to be carrying arms.

France’s action is spurring a legal debate. While the UNSC resolution 1973 appears to strengthen the embargo by calling for strict implementation, France is arguing that the authorization of the use of force to protect civilians overrides the embargo since the weapons were used to protect civilians. Russia has formally disagreed and officially complained about the arms transfer, saying that “if it is confirmed, it’s a flagrant violation” of the arms embargo.

The Obama administration is now weighing in on the side of France, though it seems their position is changing with time.

After the arms embargo was placed on Libya in Res 1970, the former State Department spokesman PJ Crowley clearly and forcefully argued on March 7 that “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.”

But Secretary Clinton then told a press conference in London on March 29 that Resolution 1973 which authorized air strikes to protect civilians effectively amended or overrode the absolute prohibition on arms to anyone in Libya, “so that there could be a legitimate transfer of arms if a country should choose to do that.” The US argument is that by authorizing “all necessary measures” to protect civilians in Libya, the Security Council cleared the way for arms transfers to the rebels. A US State Department spokesman told reporters in Washington on June 30th in response to a question on France’s action that the US believes “that UN Security Council Resolutions 1970 and 1973, read together, neither specified nor precluded providing defense material to the Libyan opposition.” Though he also said that it was “not an option that we have acted on.”

Why the US hasn’t acted upon their perceived right to arm the opposition is an interesting question that I hope will be asked by Congress in the coming days. I hope the Obama Administration’s response is that it learned lessons from the Afghanistan experience in the 1980s when US weapons distributed to “freedom fighters” opposing the Soviet occupation without any assurances on how these weapons would be used. US weapons sent to Afghanistan to fight the Soviets were eventually turned on the people of Afghanistan and US troops. I also hope the administration response reflects an understanding that the mandate to protect civilians given to NATO could be undermined by providing arms to ill-disciplined rebels who have been accused of serious human rights violations. When it comes to transferring weapons to rebels who have no system of accountability and are not trained in the laws of armed conflict, the US should follow a “do no harm” policy.

The impact of these arms on the ground is yet to be seen. But there are reasons to be concerned. After hearing about the arms drop, the head of the African Union, Jean Ping, argued that this will have contributed to the “destabilization” of African states. “What worries us is not who is giving what, but simply that weapons are being distributed by all parties and to all parties. We already have proof that these weapons are in the hands of al-Qaeda, of traffickers,” Ping said to Aljazeera news.

Outside the debate on the UNSC embargo, it is clear that France is now in contravention of the common position on the export of military equipment adopted by the European Union in December 2008. Furthermore, France has significantly weakened its position within the United Nations discussions on the Arms Trade Treaty due to resume on July 11th. Within the treaty discussion France has persuasively argued for a treaty outlining clear rules requiring states to adhere to UNSC embargoes and restricting arms transfers if there is a substantial risk the weapons will be used for human rights violations. France’s “do as I say, not as I do” approach to foreign policy undermines these noble efforts. Unless the US wants to join France and undercut its ability to encourage countries to abide by international law and UNSC arms embargos, it will refrain from following their example.