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Text of UN Security Council Resolution 1973 on Libya (as reportedly adopted)

Posted in Intervention (RTP), Security Council on March 18, 2011 by Don Anton

While we are still waiting for the UN to make available to full text of the SC Res. 1973, the Guardian has reported the text as adopted. The final operative paragraph 4 makes clear that a ground occupying force is precluded.

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The Security Council,

Recalling its resolution 1970 (2011) of 26 February 2011,

Deploring the failure of the Libyan authorities to comply with resolution 1970 (2011),

Expressing grave concern at the deteriorating situation, the escalation of violence, and the heavy civilian casualties,

Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians,

Condemning the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions,

Further condemning acts of violence and intimidation committed by the Libyan authorities against journalists, media professionals and associated personnel and urging these authorities to comply with their obligations under international humanitarian law as outlined in resolution 1738 (2006),

Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity,

Recalling paragraph 26 of resolution 1970 (2011) in which the Council expressed its readiness to consider taking additional appropriate measures, as necessary, to facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in the Libyan Arab Jamahiriya,

Expressing its determination to ensure the protection of civilians and civilian populated areas and the rapid and unimpeded passage of humanitarian assistance and the safety of humanitarian personnel,

Recalling the condemnation by the League of Arab States, the African Union, and the Secretary General of the Organization of the Islamic Conference of the serious violations of human rights and international humanitarian law that have been and are being committed in the Libyan Arab Jamahiriya,

Taking note of the final communiqué of the Organisation of the Islamic Conference of 8 March 2011, and the communiqué of the Peace and Security Council of the African Union of 10 March 2011 which established an ad hoc High Level Committee on Libya,

Taking note also of the decision of the Council of the League of Arab States of 12 March 2011 to call for the imposition of a no-fly zone on Libyan military aviation, and to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in the Libyan Arab Jamahiriya,

Taking note further of the Secretary-General’s call on 16 March 2011 for an immediate cease-fire,

Recalling its decision to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court, and stressing that those responsible for or complicit in attacks targeting the civilian population, including aerial and naval attacks, must be held to account,

Reiterating its concern at the plight of refugees and foreign workers forced to flee the violence in the Libyan Arab Jamahiriya, welcoming the response of neighbouring States, in particular Tunisia and Egypt, to address the needs of those refugees and foreign workers, and calling on the international community to support those efforts,

Deploring the continuing use of mercenaries by the Libyan authorities,

Considering that the establishment of a ban on all flights in the airspace of the Libyan Arab Jamahiriya constitutes an important element for the protection of civilians as well as the safety of the delivery of humanitarian assistance and a decisive step for the cessation of hostilities in Libya,

Expressing concern also for the safety of foreign nationals and their rights in the Libyan Arab Jamahiriya,

Welcoming the appointment by the Secretary General of his Special Envoy to Libya, Mr Abdel-Elah Mohamed Al-Khatib and supporting his efforts to find a sustainable and peaceful solution to the crisis in the Libyan Arab Jamahiriya,

Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamahiriya,

Determining that the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security,

Acting under Chapter VII of the Charter of the United Nations,

1. Demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians;

2. Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people and notes the decisions of the Secretary-General to send his Special Envoy to Libya and of the Peace and Security Council of the African Union to send its ad hoc High Level Committee to Libya with the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution;

3. Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance;

Protection of civilians

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

5. Recognizes the important role of the League of Arab States in matters relating to the maintenance of international peace and security in the region, and bearing in mind Chapter VIII of the Charter of the United Nations, requests the Member States of the League of Arab States to cooperate with other Member States in the implementation of paragraph 4;

No fly zone

6. Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians;

7. Decides further that the ban imposed by paragraph 6 shall not apply to flights whose sole purpose is humanitarian, such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals from the Libyan Arab Jamahiriya, nor shall it apply to flights authorised by paragraphs 4 or 8, nor other flights which are deemed necessary by States acting under the authorisation conferred in paragraph 8 to be for the benefit of the Libyan people, and that these flights shall be coordinated with any mechanism established under paragraph 8;

8. Authorizes Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation with the League of Arab States to coordinate closely with the Secretary General on the measures they are taking to implement this ban, including by establishing an appropriate mechanism for implementing the provisions of paragraphs 6 and 7 above,

9. Calls upon all Member States, acting nationally or through regional organizations or arrangements, to provide assistance, including any necessary over-flight approvals, for the purposes of implementing paragraphs 4, 6, 7 and 8 above;

10. Requests the Member States concerned to coordinate closely with each other and the Secretary-General on the measures they are taking to implement paragraphs 4, 6, 7 and 8 above, including practical measures for the monitoring and approval of authorised humanitarian or evacuation flights;

11. Decides that the Member States concerned shall inform the Secretary-General and the Secretary-General of the League of Arab States immediately of measures taken in exercise of the authority conferred by paragraph 8 above, including to supply a concept of operations;

12. Requests the Secretary-General to inform the Council immediately of any actions taken by the Member States concerned in exercise of the authority conferred by paragraph 8 above and to report to the Council within 7 days and every month thereafter on the implementation of this resolution, including information on any violations of the flight ban imposed by paragraph 6 above;

Enforcement of the arms embargo

13. Decides that paragraph 11 of resolution 1970 (2011) shall be replaced by the following paragraph : “Calls upon all Member States, in particular States of the region, acting nationally or through regional organisations or arrangements, in order to ensure strict implementation of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect in their territory, including seaports and airports, and on the high seas, vessels and aircraft bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, calls upon all flag States of such vessels and aircraft to cooperate with such inspections and authorises Member States to use all measures commensurate to the specific circumstances to carry out such inspections”;

14. Requests Member States which are taking action under paragraph 13 above on the high seas to coordinate closely with each other and the Secretary-General and further requests the States concerned to inform the Secretary-General and the Committee established pursuant to paragraph 24 of resolution 1970 (2011) (“the Committee”) immediately of measures taken in the exercise of the authority conferred by paragraph 13 above;

15. Requires any Member State whether acting nationally or through regional organisations or arrangements, when it undertakes an inspection pursuant to paragraph 13 above, to submit promptly an initial written report to the Committee containing, in particular, explanation of the grounds for the inspection, the results of such inspection, and whether or not cooperation was provided, and, if prohibited items for transfer are found, further requires such Member States to submit to the Committee, at a later stage, a subsequent written report containing relevant details on the inspection, seizure, and disposal, and relevant details of the transfer, including a description of the items, their origin and intended destination, if this information is not in the initial report;

16. Deplores the continuing flows of mercenaries into the Libyan Arab Jamahiriya and calls upon all Member States to comply strictly with their obligations under paragraph 9 of resolution 1970 (2011) to prevent the provision of armed mercenary personnel to the Libyan Arab Jamahiriya;

Ban on flights

17. Decides that all States shall deny permission to any aircraft registered in the Libyan Arab Jamahiriya or owned or operated by Libyan nationals or companies to take off from, land in or overfly their territory unless the particular flight has been approved in advance by the Committee, or in the case of an emergency landing;

18. Decides that all States shall deny permission to any aircraft to take off from, land in or overfly their territory, if they have information that provides reasonable grounds to believe that the aircraft contains items the supply, sale, transfer, or export of which is prohibited by paragraphs 9 and 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, except in the case of an emergency landing;

Asset freeze

19. Decides that the asset freeze imposed by paragraph 17, 19, 20 and 21 of resolution 1970 (2011) shall apply to all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the Libyan authorities, as designated by the Committee, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, as designated by the Committee, and decides further that all States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the Libyan authorities, as designated by the Committee, or individuals or entities acting on their behalf or at their direction, or entities owned or controlled by them, as designated by the Committee, and directs the Committee to designate such Libyan authorities, individuals or entities within 30 days of the date of the adoption of this resolution and as appropriate thereafter;

20. Affirms its determination to ensure that assets frozen pursuant to paragraph 17 of resolution 1970 (2011) shall, at a later stage, as soon as possible be made available to and for the benefit of the people of the Libyan Arab Jamahiriya;

21. Decides that all States shall require their nationals, persons subject to their jurisdiction and firms incorporated in their territory or subject to their jurisdiction to exercise vigilance when doing business with entities incorporated in the Libyan Arab Jamahiriya or subject to its jurisdiction, and any individuals or entities acting on their behalf or at their direction, and entities owned or controlled by them, if the States have information that provides reasonable grounds to believe that such business could contribute to violence and use of force against civilians;

Designations

22. Decides that the individuals listed in Annex I shall be subject to the travel restrictions imposed in paragraphs 15 and 16 of resolution 1970 (2011), and decides further that the individuals and entities listed in Annex II shall be subject to the asset freeze imposed in paragraphs 17, 19, 20 and 21 of resolution 1970 (2011);

23. Decides that the measures specified in paragraphs 15, 16, 17, 19, 20 and 21 of resolution 1970 (2011) shall apply also to individuals and entities determined by the Council or the Committee to have violated the provisions of resolution 1970 (2011), particularly paragraphs 9 and 10 thereof, or to have assisted others in doing so;

Panel of experts

24. Requests the Secretary-General to create for an initial period of one year, in consultation with the Committee, a group of up to eight experts (“Panel of Experts”), under the direction of the Committee to carry out the following tasks:

(a) Assist the Committee in carrying out its mandate as specified in paragraph 24 of resolution 1970 (2011) and this resolution;

(b) Gather, examine and analyse information from States, relevant United Nations bodies, regional organisations and other interested parties regarding the implementation of the measures decided in resolution 1970 (2011) and this resolution, in particular incidents of non-compliance;

(c) Make recommendations on actions the Council, or the Committee or State, may consider to improve implementation of the relevant measures;

(d) Provide to the Council an interim report on its work no later than 90 days after the Panel’s appointment, and a final report to the Council no later than 30 days prior to the termination of its mandate with its findings and recommendations;

25. Urges all States, relevant United Nations bodies and other interested parties, to cooperate fully with the Committee and the Panel of Experts, in particular by supplying any information at their disposal on the implementation of the measures decided in resolution 1970 (2011) and this resolution, in particular incidents of non-compliance;

26. Decides that the mandate of the Committee as set out in paragraph 24 of resolution 1970 (2011) shall also apply to the measures decided in this resolution;

27. Decides that all States, including the Libyan Arab Jamahiriya, shall take the necessary measures to ensure that no claim shall lie at the instance of the Libyan authorities, or of any person or body in the Libyan Arab Jamahiriya, or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures taken by the Security Council in resolution 1970 (2011), this resolution and related resolutions;

28. Reaffirms its intention to keep the actions of the Libyan authorities under continuous review and underlines its readiness to review at any time the measures imposed by this resolution and resolution 1970 (2011), including by strengthening, suspending or lifting those measures, as appropriate, based on compliance by the Libyan authorities with this resolution and resolution 1970 (2011).

29. Decides to remain actively seized of the matter.

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From the Journal of the United Nations, Friday, March 18, 2011 (No. 53/2011)

The situation in Libya

The agenda was adopted without objection.

The President drew attention to the text of a draft resolution contained in document S/2011/142, submitted by France, Lebanon, the United Kingdom of Great Britain and Northern Ireland and the United States of America.

Prior to the vote, a statement was made by H.E. Mr. Alain Juppé, Minister for Foreign Affairs of France.

The Council proceeded to vote on the draft resolution (S/2011/142) before it.

Decision: The draft resolution (S/2011/142) received 10 votes in favour, none against and 5 abstentions (Brazil, China, Germany, India and Russian Federation) and was adopted as resolution 1973 (2011).

Following the vote, statements were made by the representatives of Lebanon, the United Kingdom, Germany, the United States, India, Brazil, Bosnia and Herzegovina, Colombia, the Russian Federation, Portugal, Nigeria and South Africa, and by the President, speaking in his capacity as the representative of China.

R2P and Burma

Gareth Evans writes about R2P and Myanmar in this morning’s Sydney Morning Herald. Evans was a minister in the Hawke and Keating governments. He is president of the International Crisis Group and co-chairman of the International Commission on Intervention and State Sovereignty. While José Alvarez highlights significant problems with R2P in The Schizophrenias of R2P that are difficult to get around, Burma presents, perhaps, one of the strongest cases for R2P action. In addition to Evans’ piece below, U.N. Secretary-General Ban Ki-moon advanced R2P arguments in an interview on the NewsHour with Jim Lehrer.

Criminal Inaction a Call to Arms

Gareth Evans
Sydney Morning Herald
May 16, 2008

If the intransigence of the Burmese generals continues, we will have to face the question of whether in the name of humanity some international action should be taken against their will – such as military air drops, or supplies being landed from ships – to get aid to the huge numbers who desperately need it.

Last week, Bernard Kouchner, France’s Foreign Minister, argued, as others are now doing, that this is a proper case for coercive intervention under the “responsibility to protect” principle unanimously endorsed by 150 heads of state and government at the 2005 UN world summit. His proposal was immediately rejected by China and Russia, which are always sensitive about intervention in internal affairs, but it also generated concern that such an “incendiary” approach would be counterproductive in winning any still-possible co-operation from the generals.

It also provoked the argument from humanitarian relief agencies – who know what they are talking about – that any effort to drop supplies without an effective supporting relief on the ground would be hopelessly inefficient, and maybe even dangerous, with the prospect of misuse of medical supplies.
These are strong arguments but as the days go by with the prospect of an enormously greater death toll looming, they are sounding less compelling, and at the very least, need revisiting. My own initial concern, and it remains a serious one, was that Kouchner’s proposition had the potential to dramatically undercut international support for another great cause.

The “responsibility to protect” as it was conceived – as I well know, as one of the architects of the doctrine – is not about human security generally, or protecting people from the impact of natural disasters, or the ravages of HIV/AIDS or anything of that kind.

Rather, “R2P” is about protecting vulnerable populations from “genocide, war crimes, ethnic cleansing and crimes against humanity”. That is the language of the 2005 UN General Assembly resolution, and Security Council resolutions that have followed it, and it is only in that context that the question should even arise of intervening in a country against the express will of its government. Even then, it allows the use of military force only with Security Council endorsement, and as a last resort.
If R2P is capable of being invoked in anything other than a context of mass atrocity crimes, then such consensus as there is in favour of the new norm will evaporate in the global south. And that means that when the next case of genocide or ethnic cleansing comes along, we will be back to the same depressing arguments about the primacy of sovereignty that led us into the horrors of inaction in Rwanda and Srebrenica in the 1990s.

But here’s the rub. If what the generals are now doing, in effectively denying relief to hundreds of thousands of people at real and immediate risk of death, can itself be characterised as a crime against humanity, then the principle does indeed kick in. The Canadian-sponsored commission report that initiated the R2P concept anticipated just this situation, in identifying one possible case for the application of military force as “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened”.

The UN resolution does not pick up this specific language, but it does refer to “crimes against humanity”. The definition of such crimes (in the Rome statute establishing the International Criminal Court, as well as in customary international law) embraces, along with widespread or systematic murder, torture, persecution and the like, “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.

There is, as always, lots for the lawyers to argue about in all of this. And there will be lots for the Security Council to quarrel about. But when a government default is as grave as the course on which the Burmese generals seem set, there is at least a prima facie case to answer for their intransigence being a crime against humanity – of a kind which would attract the responsibility to protect principle. And that bears thinking about, fast, both by the Security Council, and the generals.
Guardian News & Media

The Pope and RTP

Posted in Intervention (RTP) on April 19, 2008 by Don Anton

Speaking in front of the General Assembly today the Pope endorsed the concept of the Responsibility to Protect. As reported in the New York Times, the Pope said:

Every State has the primary duty to protect its own population from grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made. If States are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter and in other international instruments. The action of the international community and of its institutions, provided that it respects the principles the underlie international order, should never be interpreted as an unwarranted imposition or a limitation of sovereignty. On the contrary, it is indifference or failure to intervene that do the real damage. What is needed is a deeper search for ways of pre-empting and managing conflicts by exploring every possible diplomatic avenue, and giving attention and encouragement to even the faintest sign of dialogue or desire for reconciliation.

The principle of “responsibility to protect” was considered by the ancient ius gentium as the foundation of every action taken by those in government with regard to the governed: at the time when the concept of national sovereign States was first developing, the Dominican Friar Francisco de Vitoria, rightly considered as a precursor of the idea of the United Nations, described this responsibility as an aspect of natural reason shared by all nations, and the result of an international order whose task it was to regulate relations between peoples. Now, as then, this principle has to invoke the idea of the person as image of the Creator, the desire for the absolute and the essence of freedom. The founding of the United Nations, we all know, coincided with earth-shaking upheavals that humanity suffered when the reference to the meaning of transcendence and natural reason was abandoned, and in consequence, freedom and human dignity were grossly violated. When this happens, it threatens the objective foundations of the values inspiring and governing the international order and it undermines the cogent and inviolable principles formulated and consolidated by the United Nations. In the face of new and insistent challenges, it would be a mistake to fall back on a pragmatic approach, limited to determining “common ground,” minimal in content and weak in its effect.

The full text of the speech and video is on the NY Times website.

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