Published: 29 April 2020 Author: Stefan Talmon
In February 2011, in the early stages of the civil war in Libya, the UN Security Council imposed an arms embargo on the country. The implementation of the arms embargo and other sanctions is monitored by a Committee of the Security Council. In March 2011, the Security Council also established a Panel of Experts to examine and analyse information regarding the implementation of the arms embargo; in particular, incidents of non-compliance. These measures, however, did not stop the influx of arms into Libya. In its report of November 2019, the Panel of Experts remarked that “the arms embargo was ineffective, and resulted in regular maritime and air transfers to Libya of military materiel.” The Panel identified Jordan, Turkey and the United Arab Emirates as routinely and sometimes blatantly supplying weapons to the parties to the conflict, employing little effort to disguise the source.
On 31 March 2020, the Council of the European Union (EU) established a European Union military operation in the Mediterranean (EUNAVFOR MED IRINI) to contribute to implementing the UN arms embargo on Libya with aerial, satellite and maritime assets. The task of EUNAVFOR MED IRINI was to gather extensive and comprehensive information on the trafficking of arms and related materiel and, on the high seas off the coast of Libya, to carry out inspections of vessels bound to or from Libya where there are reasonable grounds to believe that such vessels were carrying arms or related materiel to or from Libya, directly or indirectly, in violation of the arms embargo on Libya.
In implementation of the EU Council decision, on 22 April 2020 the Federal Government decided, subject to parliamentary approval, that German armed forces will participate in the EU-led military crisis management operation in EUNAVFOR MED IRINI. Asked why IRINI was limited to monitoring the sea routes, the spokesperson for the Federal Foreign Office declared:
“It is not quite the case that only sea routes can be reconnoitred. An element of this mission is also satellite reconnaissance. This, of course, also allows the monitoring of land routes, at least in part.
In fact, one goal of the mission, which has also been explicitly mentioned in the recitals of the EU mandate, is that different supply routes must be monitored equally. At the moment, not all necessary requirements for this are met. International law requirements also would have to be met in order, for example, to be able to carry out appropriate measures on the ground on land or from the air over land. At the moment, these international law requirements have only been met for the sea by relevant resolutions of the UN Security Council. […] At the moment, not all of the necessary requirements, including international law requirements, have been met in order to be able to carry out such reconnaissance on land.”
The answer highlights one of the weak points of the arms embargo on Libya: implementation. States and the EU are limited to enforcing the arms embargo at sea. Initially, the Security Council had only called upon States to inspect all cargo to and from Libya “in their territory, including seaports and airports” if they had information that provided reasonable grounds to believe the cargo contains arms. There was thus no authorisation of States to act outside their own territory which allowed States wanting to flout the arms embargo to directly supply weapons to the conflicting parties by land, sea and air. In March 2011, the Security Council extended the call to inspect vessels and aircraft suspected to transporting weapons to Libya to “the high seas” and called upon all flag States of such vessels and aircraft to cooperate with such inspections. In June 2016, the Security Council tightened the implementation of the arms embargo. Acting under Chapter VII of the Charter, the Council authorized Member States, acting nationally or through regional organizations, to inspect on the high seas off the coast of Libya vessels bound to or from Libya which they have reasonable grounds to believe are carrying arms or related materiel to or from Libya, even without the consent of the flag State. While States were thus allowed to enforce the arms embargo at sea, including by using force, there is no comparable authorisation for the control of land and air routes.
Without Security Council authorisation or the consent of the Libyan Government the EU cannot conduct aerial surveillance within Libyan airspace, let alone suppress the supply of weapons by air or enforce the arms embargo on the ground in Libya. As most of the weapons for the rebels under General Haftar are transported by land or air, a stricter enforcement of the arms embargo at sea comes at the expense of the Libyan Government of National Accord which receives most of its arms from Turkey via the sea route. However, it may be questioned whether the EU operation will be any more than symbolism. EU Member States do not possess, or are not prepared to commit, the necessary naval and surveillance assets required to effectively enforce the arms embargo even at sea. For example, all Germany, the largest EU Member State, was prepared to commit to EUNAVFOR MED IRINI was one sea reconnaissance aircraft and up to 300 troops. Three weeks after the launch of the operation, other EU Member States had not even announced their contributions to the mission.
Category: Coercive measures short of the use of force
