9 EU restrictive measures against
Libya
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(32606)
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(b)
(32610)
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Council Decision concerning restrictive measures in view of the situation in Libya
Council Regulation concerning restrictive measures in view of the situation in Libya
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| Legal base | (a) Article 29 TEU; unanimity
(b) Article 215 TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 18 March 2011
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| Previous Committee Report | None; but see (32546) — and (32549) —: HC 428-xviii (2010-11), chapter 12 (2 March 2011)
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| To be discussed in Council | 24 or 25 March 2011
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
9.1 On 23 February 2011 the European Union expressed its grave
concern over the situation unfolding in Libya; strongly condemned
the violence and use of force against civilians; deplored the
repression against peaceful demonstrators; and reiterated its
call for an immediate end to the use of force and for steps to
address the legitimate demands of the population.[46]
9.2 On 26 February 2011, the UN Security Council adopted UNSCR
1970 (2011). Deploring what it called "the gross and systematic
violation of human rights" in strife-torn Libya, the Security
Council demanded an end to the violence and decided to refer the
situation to the International Criminal Court while imposing an
arms embargo on the country and a travel ban and assets freeze
on the family of Muammar Al-Qadhafi and certain Government officials.
9.3 Unanimously adopting resolution 1970 (2011) under Article
41 of the Charter's Chapter VII, the Council authorized all Member
States to seize and dispose of military-related materiel banned
by the text. It called on all Member States to facilitate and
support the return of humanitarian agencies and make available
humanitarian and related assistance in Libya and expressed its
readiness to consider taking additional appropriate measures as
necessary to achieve that.
9.4 Through the text, the Council also decided to establish
a new committee to monitor sanctions, to liaise with Member States
on compliance and to respond to violations and to designate the
individuals subject to the targeted measures. Individuals and
entities immediately subjected to the targeted sanctions were
listed in an Annex to the resolution.
9.5 The Council also affirmed it would keep the actions of
the Libyan authorities under continuous review and would be prepared
to strengthen, modify, suspend or lift the prescribed measures
in light of compliance or non-compliance with the resolution.[47]
9.6 On 27 February 2011, the High Representative of the Union
for Foreign Affairs and Security Policy and Vice-President of
the Commission (Baroness Ashton) welcomed the adoption of the
Resolution, said that the European Union fully endorsed it and
would implement the restrictive measures as a matter of urgency.
9.7 The measures were adopted without discussion at the 28
February 2011 Transport, Telecoms and Energy Council, after which
the following statement was issued:
"In line with Saturday's decision by the UNSC, the Council
banned the supply to Libya of arms, ammunition and related material.
In addition to the UN measures, the Council also prohibited trade
with Libya in equipment which might be used for internal repression.
"The Council enacted the following UN measures:
- "a visa ban on 16 persons, including Muammar Qadhafi,
parts of his family closely associated with the regime and other
persons responsible for the violent crackdown on the civilian
population since 15 February;
- "a freeze of the assets of Muammar Qadhafi and five members
of his family.
"The Council also adopted as autonomous measures a visa ban
on an additional 10 individuals and an asset freeze on a further
20 individuals responsible for the violent crackdown on the civilian
population."[48]
9.8 We subsequently considered the relevant Council Decision
and implementing Council Regulation at our meeting on 3 March
2011. The Council Decision and Regulation raised no questions
per se, but we reported them to the House nonetheless,
because of the widespread interest in the situation in Libya;
recognised the situation faced by the Government and, in these
circumstances and on this occasion, did not object to its having
agreed their adoption prior to the completion of scrutiny; and
cleared the documents.[49]
9.9 On 17 March 2011, demanding an immediate ceasefire in
Libya, including an end to the current attacks against civilians,
which it said might constitute "crimes against humanity",
the UN Security Council imposed a ban on all flights in the country's
airspace — a no-fly zone — and tightened sanctions
on the Qadhafi regime and its supporters. In adopting Resolution
1973 (2011) by a vote of ten in favour to none against, with five
abstentions (Brazil, China, Germany, India, Russian Federation),
the Council authorized Member States, acting nationally or through
regional organizations or arrangements, to take all necessary
measures to protect civilians under threat of attack in the country,
including Benghazi, while excluding a foreign occupation force
of any form on any part of Libyan territory — requesting
them to immediately inform the Secretary-General of such measures.
9.10 Recognizing the important role of the League of Arab
States in the maintenance of international peace and security
in the region, and bearing in mind the United Nations Charter's
Chapter VIII on 'Regional Arrangements', the Council asked the
League's Member States to cooperate with other Member States in
implementing the no-fly zone.
9.11 The Council stressed the need to intensify efforts to
find a solution to the crisis that responded to the legitimate
demands of the Libyan people, noting actions being taken on the
diplomatic front in that regard. It further demanded that Libyan
authorities comply with their obligations under international
law and take all measures to protect civilians and meet their
basic needs and to ensure the rapid and unimpeded passage of humanitarian
assistance.
9.12 In that connection, the Council specified that the flight
ban would not apply to flights that had as their sole purpose
humanitarian aid, the evacuation of foreign nationals, enforcing
the ban or other purposes "deemed necessary for the benefit
of the Libyan people".
9.13 It further decided that all States should deny permission
to any Libyan commercial aircraft to land in or take off from
their territory unless a particular flight had been approved in
advance by the committee that was established to monitor sanctions
imposed by resolution 1970 (2011).
9.14 In tightening the asset freeze and arms embargo established
by that resolution, the Council further detailed conditions for
inspections of transport suspected to be violating the embargo,
requesting States enforcing the embargo to coordinate closely
with each other and the Secretary-General on the measures they
were taking towards implementation.
9.15 It requested the Secretary-General to create an eight-member
panel of experts to assist the Security Council committee in monitoring
the sanctions.[50]
9.16 On 21 March 2011, the Foreign Affairs Council adopted
conclusions on Libya that, inter alia:
- expressed its concern at the present situation and condemned
the gross and systematic violation of human rights, violence and
brutal repression perpetrated by the regime against the Libyan
people;
- expressed its satisfaction after the adoption of UNSCR 1973
and underlined its determination to contribute to its implementation;
- noted that, in addition to adopting additional further restrictive
measures against the Libyan leadership in the form of additional
autonomous designations of person and entities with a view to
preventing further funding of the regime, was, on the basis of
the UNSC Resolution, working on the further strengthening of the
measures with a view to their adoption ahead of the European Council
on 24/25 March 2011;
- said that it and the EU Member States would support actions
provided for by UNSCR 1973 necessary to protect civilians and
civilian populated areas under threat of attack; and
- noted that the EU will continue to provide humanitarian assistance
to all those affected.[51]
The draft Council Decision and Council Regulation
9.17 In his Explanatory Memorandum of 18 March 2011, the Minister
for Europe (Mr David Lidington) says recalls that UNSCR 1970 was
implemented through the EU by Council Decision (2011/137/CFSP)
and Regulation (No 204/2011), adopted on 3 March 2011, which imposed
a travel ban and asset freeze on 26 individuals and a ban on the
export of equipment which could be used for internal repression.
9.18 The Minister says that these further documents
build on earlier EU and UN action by implementing UNSCR 1973 (2011)
at EU level. At the time of writing, he says that the documents
were not available, though he expects them to be so early the
following week. He also understands that UNSCR 1973 will be adopted
by the European Council on 24 or 25 March. The Minister goes on
to says that he believes the text will include all elements of
UNSCR 1973, and thus:
- "demands that Qadhafi
implement an immediate ceasefire;
- "imposes a No-Fly Zone
to prevent the Qadhafi regime using air power against the Libyan
people;
- "authorises member states
to take all necessary measures to protect civilians and civilian-populated
areas under threat of attack, while ruling out a foreign occupation
force of any form on any part of Libyan territory"; and
- "imposes a range of additional
measures, including significant action to tighten enforcement
of the arms embargo and deny the regime access to funds."
9.19 Draft texts were made available to the Committee
on 22 March. Their contents correspond with the Minister's rather
broad brush summary. Thus, Member States shall:
- take the necessary measures
to prevent the flights of aircrafts under their jurisdiction in
the airspace of Libya, save those whose sole purpose is humanitarian;
- inspect vessels and aircraft
bound to or from Libya, if they have reasonable grounds to believe
that such vessels are carrying prohibited cargo;
- deny permission to any Libyan
aircraft to take off from, land in or overfly their territory;
- deny permission to any aircraft
to take off from, land in or overfly their territory, if they
have reasonable grounds to believe that the aircraft contains
prohibited items, including the provision of armed mercenary personnel.
9.20 The measures also extend the travel ban
and asset freeze to encompass not just the Qadhafi family and
a range of other individuals but also, now, state enterprises
under the control of Muammar Qadhafi and his family, and thus
a potential source of funding for his regime, viz:
- Central Bank of Libya;
- Libyan Investment Authority;
- Libyan Arab Foreign Investment
Company (LAFICO);
- Libyan Foreign Bank;
- Libyan National Oil Corporation.
9.21 With regard to the measures, the Minister
notes that:
- the procedures for designating
individuals as subject to asset freezes are compliant with fundamental
rights: provision is made for competent authorities of Member
States to authorise the release of frozen funds where necessary
in certain circumstances, for example, to satisfy the basic needs
of listed persons or their dependents and where necessary for
extraordinary expenses; decisions by competent authorities of
Member States in this regard would be subject to challenge in
Member State's courts; prohibitions on transfer of funds and financial
services are exempted where necessary for humanitarian purposes,
or where necessary for supply of foodstuffs, medical equipment
or provision of health care;
- the Regulation respects the
fundamental rights and observes the principles recognised in particular
by the Charter of Fundamental Rights of the European Union and
notably the right to an effective remedy and to a fair trial and
the right to the protection of personal data;
- the Regulation says that the Council shall provide
designated persons and entities an opportunity to present observations
on the reasons for their listing; and, where observations are
submitted, the Council will review its decision in the light of
those observations and inform the person or entity concerned accordingly;
- in addition, the asset freezing measures will
be reviewed at regular intervals and at least every 12 months.
The Government's view
9.22 The Minister comments as follows:
"We stand 100% behind the Libyan people and
their right to express their views free from the threat of assassination,
beatings, rape and intimidation. At a time of cautious optimism
in other parts of the Middle East, Qadhafi's brutality has made
him once more a pariah.
"We will continue to push for a tough approach.
Action is best done on an international basis and we are doing
a lot of preparatory work in order to be able to take further
measures very soon.
"What is important is that we work to end the
appalling and unacceptable violence. We are sending a warning
to people in the Libyan regime that the world is watching them
and will hold them to account."
Conclusion
9.23 On 21 March the House adopted the following
Resolution:
"That this House welcomes United Nations
Security Council (UNSC) Resolution 1973; deplores the ongoing
use of violence by the Libyan regime; acknowledges the demonstrable
need, regional support and clear legal basis for urgent action
to protect the people of Libya; accordingly supports Her Majesty's
Government, working with others, in the taking of all necessary
measures to protect civilians and civilian populated areas under
threat of attack in Libya and to enforce the No Fly Zone, including
the use of UK armed forces and military assets in accordance with
UNSC Resolution 1973; and offers its wholehearted support to the
men and women of Her Majesty's armed forces."[52]
9.24 The Council Decision and Regulation raise
no questions in and of themselves. We nonetheless report these
measures because of their political importance.
9.25 In so doing, we note that the Minister
is "doing a lot of preparatory work in order to be able to
take further measures very soon." We should be grateful if
he would do all that he can to continue to keep the Committee
informed about what is plainly a very fast-moving situation.
9.26 We now clear the documents.
Annex: Council conclusions on
Libya
"1. The Council expresses its concern at the
present situation in Libya and condemns the gross and systematic
violation of human rights, violence and brutal repression perpetrated
by the regime against the Libyan people. It recalls the UNSC decision
to refer these issues to the ICC. It confirms that the EU's main
aim is the protection of the civilian population and support for
the possibility for the Libyan people to realise their aspirations
for a democratic society. To this end Colonel Gaddafi has to relinquish
power immediately.
"2. The Council expresses its satisfaction after
the adoption of UNSCR 1973 and underlines its determination to
contribute to its implementation. It also welcomes the Paris Summit
as a decisive contribution to its implementation. While contributing
in a differentiated way, the EU and its Member States are determined
to act collectively and resolutely, with all international partners,
particularly the Arab League and other regional stakeholders,
to give full effect to these decisions.
"3. The Council has adopted today additional
further restrictive measures against the Libyan leadership in
the form of additional autonomous designations of person and entities
with a view to preventing further funding of the regime. On the
basis of the UNSC Resolution, the Council is working on the further
strengthening of the measures with a view to their adoption ahead
of the European Council on 24/25 March 2011.
"4. The Council and the EU Member States will
support actions provided for by UNSCR 1973 necessary to protect
civilians and civilian populated areas under threat of attack.
It notes that the EU will continue to provide humanitarian assistance
to all those affected. The EU recalls its readiness to help Libya
build a constitutional state and develop the rule of law.
"5. The EU is ready to provide CSDP support
to humanitarian assistance in response to a request from OCHA
and under the coordinating role of the UN. Such actions will fully
respect the UN guidelines on the use of military and civil defence
assets (MCDA).
"6. The Council asks the High Representative
to develop further planning in accordance with UNSC Resolution
1973 and the European Council Declaration of 11 March 2011, on
support for humanitarian assistance/civil protection operations
including by maritime means for this purpose. This should be in
close co-ordination and complementarity with the UN, NATO and
others. As part of this process, the Council invites the High
Representative to continue contacts with the UN Secretary General
and countries of the region, including Egypt and Tunisia. This
process should be undertaken as a matter of urgency in order to
allow further consideration by the Council by the end of the week.
It took note of the offer by Italy to provide OHQ [Operational
Headquarters].
"7. The EU and the Member States underline once
more their solidarity as regards those Member States most directly
concerned by migratory movements and reiterate their readiness
to provide the necessary support as the situation evolves, in
line with the European Council declaration."
46 See http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/cfsp/119453.pdf
for the full text. Back
47
Full details of UN Security Council resolution 1970 (2011) are
available at http://www.un.org/News/Press/docs/2011/sc10187.doc.htm. Back
48
See http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/119524.pdf.
Back
49
See headnote: (32546) - and (32549) -: HC 428-xviii (2010-11),
chapter 12 (2 March 2011). Back
50
See http://www.un.org/News/Press/docs/2011/sc10200.doc.htm#Resolution
for full details. Back
51
The full conclusions are reproduced at the Annex to this chapter
or our Report, and available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/120065.pdf.
Back
52
See HC Deb, 21 March 2011, cols 700-806: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110321/debtext/110321-0001.htm#1103219000001.
Back
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