Earlier this week France announced that it had delivered arms and ammunition to Libyan rebels in the Nafusa Mountains in early June. This was reportedly an attempt by France to assist the rebels in their military campaign against the forces of Libyan leader Muammar Gaddafi. This move was met with rebuke from China, Russia and the African Union, all expressing concern that such actions could further destabilise Libya and could lead to an escalation of violence.

It also sparked debate as to whether France had breached the UN arms embargo against Libya, which is provided for in two UN Security Council resolutions. Russia termed it a “crude violation”. The US argued that the relevant Security Council resolutions “neither specified nor precluded providing defence material to the Libyan opposition”. The action by France, and the subsequent mixed response from other Permanent Members of the Security Council not only reveals the complexities of UN arms embargoes, but also the inherent weaknesses of such arrangements.

An arms embargo is a type of sanction that seeks to prevent the transfer of arms and military-related material to a specific State or armed group. They are typically imposed by individual States, collections of States, or international organisations, such as the UN, against States or non-State actors that pose a significant threat to regional or international peace and security. Arms embargoes are based on the assumption that the transfer of arms and military-related material into regions or countries characterised by high levels of political tension, aggression and violence will have a destabilising effect.

The UN is the only body with the authority and power to declare and enforce international arms embargoes that are mandatory in nature. The reason for this is that all UN Member States have pledged in Article 2.5 of the UN Charter to “refrain from giving assistance against which the UN is taking preventive or enforcement action”. This creates a legal obligation on Member States to establish legislative and administrative controls with respect to arms transfers between their borders in order to be in a position to enforce UN arms embargoes.

Each UN arms embargo is administered and managed by a specific sanctions committee, which is created by, and directly subordinate to, the UN Security Council. The actual implementation of each arms embargo is not enforced by means of the actions of the UN (the organisation), but rather by UN Member States. The success however of arms embargoes are entirely dependent on whether States are willing to prioritise the broader interests of the international community over their own narrow economic, military and partisan interests.

UN Security Council Resolutions that establish arms embargoes can include specific exemptions to these arms embargoes. Such exemptions are usually included to allow the international community to provide military support to those States (that are subject to an arms embargo) with the resources to rebuild or strengthen their armed forces in a post-conflict environment. This has been the case in Liberia. Similarly, exemptions have been made in cases where weak governments have been confronted by destabilizing rebel groups, such as with the Somalia’s Transitional Federal Government in its campaign against Al Shabaab. Exemptions for arms transfers to rebel groups are however uncommon. Typically those Member States that seek to make use of the exemption provision are required to request permission or provide written notification to the relevant UN sanctions committee.

The UN resolutions that relate to the arms embargo against Libya make allowance for such an exemption. Resolution 1970 (2011) indicates that Member States may transfer arms to Libya, but the approval of the sanctions committee is required. This is reinforced by Resolution 1973 (2011) which authorises Member States “to take all necessary measures notwithstanding paragraph 9 of resolution 1970 [arms embargo requirement] to protect civilians and civilian populated areas, under threat of attack” in Libya. The French Ambassador to the UN has subsequently claimed that as a result of this specific provision, France “decided to provide self-defensive weapons to the civilian populations because we consider that these populations were under threat”. The French Ambassador further indicated that in such “exceptional circumstances” the arms embargo does not apply.

The transfer of arms to Libyan rebels, and the subsequent justification by France, (with the support of the US and some European States) has serious implications for international diplomacy and the role of the UN this regard. On the positive side, this may be an indication that the international norm of the responsibility of States to protect civilians from crimes against humanity is gaining momentum. On the negative side, this development may actually lead to further civilian deaths in Libya. It also has led to new fractures within the Security Council, especially between the Permanent Members, and has undermined the integrity of fragile UN arms embargo regime.

Guy Lamb, Senior Research Fellow, Arms Management Programme, ISS Cape Town Office