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UN acts swiftly on Libya

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1 March 2011 11:32

This past Saturday, the UN Security Council unanimously passed Resolution 1970, which imposed sanctions on Libya, placed travel bans and asset freezes on Qadhafi and several key officials, and condemned the recent regime-sponsored violence (the US Permanent Mission to the UN has a useful fact sheet).

As I began to update one of my colleagues about this today, I received a sceptically-raised eyebrow. What's the big deal about yet another painfully diluted and ineffectual Security Council resolution, 'noting with concern' one thing and 'strongly urging action' on another' 'This resolution is different!', I insisted. Here's why: 

1. It's quick: For an institution notoriously sluggish and non-committal in its response to international security crises, Resolution 1970 was an uncharacteristically swift and strong response to the Libyan crisis. As Carne Ross , founder of Independent Diplomat, points out, Council members have managed to churn out a public, international, and fairly meaty (as far as the UN goes) agreement only two weeks after the outbreak of the conflict and while the crisis unfolds. 

2. It's the first time the entire Security Council membership (and most notably, the US) has supported the referral of an incident to the International Criminal Court (ICC): under Article 13(b) of the Rome Statute, the Security Council can refer a situation to the ICC to investigate and prosecute key individuals for crimes against humanity. Currently, however, three of the permanent five Council members (the US, Russia, and China) are not parties to the Rome Statute, having expressed concerns over the court's potential to interfere with their sovereignty and jurisdiction over their own citizens.

This partially explains why, until now, the Security Council has only referred one other incident to the court: the humanitarian crisis in Darfur in 2005 via Resolution 1593, a resolution on which Russia, China, and the US abstained. Resolution 1970, then, is the first time a referral to the ICC has been unanimously supported by all of the Security Council's members, a point which the US Ambassador to the UN, Susan Rice, was eager to point out

It's interesting that the Americans wished to highlight this. While the US initially signed the Rome Statute in 2000, President Bush formally withdrew the US from the treaty in May 2002. Up until 2009, the US held a firm policy of non-support for any UN statement or resolution referring to the ICC.

Since then, Secretary of State Clinton has described America's non-membership to the court as 'regrettable' and the US has incrementally stepped up its support, most notably re-assuming its attendance at annual meetings of the Assembly of States Parties to the Rome Statute and discussing future assistance to the court (a chronology of developments outlined especially well here).

The fact that the US has supported the current resolution through a supporting vote, and not simply by withholding its veto, stands as a significant advance towards greater US engagement, and perhaps eventual membership, to the ICC. It is also a further step in legitimising the role of the ICC in the maintenance of international law.

More likely than moving towards formal membership, however, the US will probably wield its now increasingly vague approach to the ICC like it does many instruments of international law: by employing what might be described as a doctrine of 'tactical ambiguity'. As with the Law of the Sea Convention, it will revel in the fuzzy line between provision and principle, using the treaty's general concept and wide acceptance as a strong rhetorical and normative device internationally, while reserving the right to cry foul at its application to the US. Is this tactical ambiguity a desirable approach for the US, or, as Fergus tweeted yesterday, should the US join the ICC'

3. For a resolution supported by Russia and especially China, UNSCR 1970 contains a series of uncharacteristically strong statements in favour of the concept of the Responsibility to Protect: Russia and China have a well-established track record of strictly opposing the intervention of the UN in the domestic matters of other states, as well as lodging ongoing opposition to the concept of the Responsibility to Protect. 

Yet stunningly, both Russia and China gave their support to the recent resolution on Libya, which uses phrases such as 'Recalling the Libyan authorities' responsibility to protect its population', 'Underlining the need to respect the freedoms of peaceful assembly and of expression, including freedom of the media', and called for 'steps to fulfil the legitimate demands of the population'.

Jason Dean  from the Wall St Journal and others have suggested that Chinese support for this resolution indicates a shift in Chinese UN diplomacy as it attains greater international clout. But these excerpts can be found in the non-binding preamble to the resolution, where they are counterpoised with the usual anxious reaffirmation of the Council's support for the 'sovereignty, independence, territorial integrity and national unity' of the state in question.

Rather than a shift in Chinese foreign policy principles, perhaps Chinese support for 1970 reflects Beijing's desire to see the alarming spread of anti-government unrest throughout the Middle East addressed, contained, and out of the spotlight as swiftly as possible, for fear of its fervour spreading east. This would at least explain the puzzling juxtaposition of this resolution's language with China's recent clamp-down on its own domestic freedom of assembly and media.

Photo by Flickr user United Nations Photo.

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