JURIST Guest Columnist Curtis Doebbler, professor of law at An-Najah National University in Nablus, Palestine, says the UN Security Council acted in an unusual manner against the government of Libya....
n 26 February 2011 the UN Security Council unanimously adopted Resolution 1970 (2011) that takes harsh action against the government of Libya
In a way that is unusual, if not unique, in the practice of the Security Council, the resolution refers the matter of Libya to the prosecutor of International Criminal Court for investigation and demands that the prosecutor report to the Council within two months on how the investigation is proceeding. This is the first time a matter has been referred to the Prosecutor by a unanimous decision of the Council. When the situation in Durfur, Sudan was referred to the ICC, four States abstained.
Notably the resolution stops short of any type of use of force, including the establishment of a no-fly zone. There is also no mention of a right of intervention or the responsibility to protect that was urged by several States, but very much opposed by others. The dedicated discussion on the responsibility to protect that took place in the General Assembly in July 2009 showed that the overwhelming majority of States viewed any right of intervention as incompatible with the prohibition of interference with the internal affairs of a State. To stress this position the resolution's preamble reiterates the Council's "strong commitment to the sovereignty, independence, territorial integrity and national unity of Libya...."
Despite adopting the resolution under Chapter VII, few States even attempted to substantiate their allegation that the situation in Libya formed a threat to international peace and security. For this reason, the aggressive measures that are found in the resolution are extraordinary.
The measures include not only the ICC referral, but also a travel ban on, and seizure of assets of any person designated in the resolution's relevant annex or so designated by the Committee. As these measures are not limited in time it will require another Council vote to change or remove them. The five permanent members of the Council will have the right to veto such efforts. The resolution also allows any Member State to submit the name of an individual to be designated for the travel ban or assets seizure.
The criteria for making such a designation is also vague. Paragraph 22(a) states that any individual may be designated if they have been "[i]nvolved in or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in the Libyan Arab Jamahiriya, including by being involved in or complicit in planning, commanding, ordering or conducting attacks, in violation of international law, including aerial bombardments, on civilian populations and facilities."
While the paragraph is not limited to individuals working for the government, it would appear to allow the designation of a wide range of government actors. These actors could include military personnel and police who are acting to restore national security or public order. Both military officers as well as soldiers carrying out these orders could be designated. As such this broad language could be read to constitute a unique interference with one of the most significant domestic priorities of a government: the maintenance of security and public order.
In the preamble to the resolution the Council recognizes that "the Arab League, the African Union, and the Secretary General of the Organization of the Islamic Conference" has condemned "the serious violations of human rights and international humanitarian law that are being committed in the Libyan Arab Jamahiriya." The resolution says little about the stress that each of these bodies has put on ensuring that these matters are resolved internally and do not lead to outside interference.
Just hours before the Security Council adopted resolution 1970, the UN General Assembly's Human Rights Council also adopted a resolution by consensus calling, most notably, for the General Assembly to suspend Libya from membership in the UN's main human rights body. On 28 February the General Assembly responded to this call by suspending Libya's membership in the Human Rights Council.
Although these efforts are evidence of the ability of UN bodies to act quickly when the political circumstances allow, they also highlight the hypocritical discrepancies that continue to exist between actions concerns powerful States and actions concerning the rest.
While action was taken in against Libya when an estimated several hundred people were killed, no action was taken against Egypt when hundreds of demonstrators were killed. More strikingly where was the UN when the United States invaded Iraq and Afghanistan and killed more than a million people in these two countries?
The rule of international law requires a more consistent application of this law. Otherwise, political power may be enough to get action in some instances, but some of the more egregious violations of international law, which are also some of most serious threats to international peace and security, will go unanswered. Such a state of affairs may do more to waken then rule of law then to promote it.
Dr. Curtis F.J. Doebbler is an international lawyer that practices before internatinal tribunals and advises goverments on issues of public internatonal law.
Suggested citation: Curtis Doebbler, Libya and UN Sanctions: Fair Play or Unfair Politics?, JURIST - Forum,
Mar. 7, 2011, http://jurist.org/forum/2011/03/libya-and-un-sanctions-fair-play-or-unfair-politics.php.