26 EU restrictive measures and Libya
| (34931)
9559/13
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| Council Regulation amending Article 16(2) of Regulation (EU) 204/2011 concerning restrictive measures in view of the situation in Libya
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| Legal base | Article 215 TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM and Minister's letter of 24 May 2013
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| Previous Committee Report | None; but see (34839) — and (34840) —: HC-86-xxxix (2012-13), chapter 12 (24 April 2013); (34607) — and (34608) —: HC-86-xxvii (2012-13), chapter 18 (16 January 2013); also see (33323) — and (33324) —: HC 428-xlii (2010-12), chapter 28 (23 November 2011); (33171) 14581/11, (33189) — and (33190) —: HC 428-xxxvii (2010-12), chapter 23 (12 October 2011); (33104-5) —: HC 428-xxxv (2010-12), chapter 20 (7 September 2011); (32817-19) —: HC 428-xxix (2010-11), chapter 11 (8 June 2011); (32626) —: HC 428-xxii (2010-11), chapter 10 (30 March 2011); (32606) — and (32610) —: HC 428-xxi (2010-11), chapter 9 (23 March 2011) and (32546) — and (32549) —: HC 428-xviii (2010-11), chapter 12 (2 March 2011)
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| To be discussed in Council | 27 May 2013
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
26.1 On 26 February 2011, the UN Security Council adopted
UNSCR 1970 (2011). This requested immediate measures to stop the
then violence in Libya, ensure accountability and facilitate humanitarian
aid, imposed an arms embargo, asset freeze and travel ban on six
individuals, and a travel ban on 10 additional individuals, and
established a Sanctions Committee.[58]
In addition to an embargo on arms and other equipment that could
be used for internal repression, the EU — via Council Decision
2011/137/CFSP — implemented a visa ban on 16 persons, including
Qadhafi, family members and other persons directly responsible
for the violent crackdown; a freeze of the assets of Qadhafi and
five members of his family; a visa ban on an additional 10 individuals;
and an asset freeze on a further 20 individuals associated with
the crackdown.[59]
26.2 The Committee's other Reports under reference
deal with the more important of the EU's responses to the remainder,
conclusion and aftermath of the Libya crisis. These include:
— the
following suit by the EU of the adoption on 17 March 2011 of Resolution
UNSCR 1973 (2011), which 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;
— measures that first tightened pressure
on the Qadafi regime (adding more individuals and entities, listing
six ports in western Libya then under its control) and then, as
the Opposition forces prevailed, beginning the process of unwinding
them; and
— measures formally ending the No-Fly Zone.
26.3 The last of these responded to UNSCR 2016
(2011), which was adopted unanimously on 27 October. Welcoming
positive developments in Libya and taking note of the Declaration
of Liberation following the death of Muammar al-Qadhafi, the UN
Security Council ended the authorization under which NATO had
conducted an air campaign with the mandated aim of protecting
civilians, as of 31 October 2011. At the same time, NATO
duly concluded its Operation Unified Protector.
Council Decision 2013/45/CFSP of 22 January 2013
26.4 The Council Decision authorised the addition
of an exemption to the EU asset freeze imposed during the Libya
crisis, to facilitate the return of misappropriated funds to the
post-Qadaffi Libyan regime: it thus allowed HM Treasury and its
EU counterparts to authorise the release of frozen assets in accordance
with judicial or administrative decisions issued or enforceable
in the EU regardless of whether the decision was issued before
or after the date of the designation, thereby facilitating the
repatriation to Libya of frozen assets that have been deemed as
misappropriated by judicial proceedings in Libya, regardless of
whether those judicial proceedings had begun prior to or since
the date the persons or entities were designated.
26.5 The Minister of Europe (Mr David Lidington)
explained that the exemption followed a successful UK drive to
have the same language adopted in the Egypt and Tunisia sanctions
regimes; the EEAS has proposed the same for the Libya sanctions
to maintain consistency across regimes and to prepare the way
if Member States did wish to repatriate frozen assets in support
of the political process in Libya. The Minister supported inclusion
of the exemption language and said that, where appropriate, the
Government might use this exemption to facilitate the repatriation
of misappropriated Libyan assets.
26.6 The Committee took the view that, in sum,
all that was involved was sensible contingency planning on the
same lines as the procedures already introduced in Tunisia and
Egypt, which Committee had previously reported those to the House
because of they were the first ones of their kind. Since there
were no new aspects to the measures regarding Libya, we saw no
need for a further Report on what were essentially technical changes
that raised no questions in and of themselves.[60]
UN Security Council Resolution 2095 of 14 March
2013
26.7 On 14 March the UN Security Council extended
for 12 months the mandate of the United Nations Support Mission
in Libya (UNSMIL) to assist the authorities in defining national
needs and priorities and match those with offers of strategic
and technical advice, and modified the ban on arms imports "to
boost the country's security and disarmament efforts".
26.8 The Council also lifted the requirement
that the UN Sanctions Committee approve supplies of non-lethal
military equipment and assistance for humanitarian or protective
use. It also removed the need for notification to the Committee
of non-lethal military equipment being supplied to the Libyan
Government for security or disarmament assistance, and urged the
Government of Libya to improve the monitoring of arms supplied
to it, including through the issuance of end-user certificates.
26.9 The Council kept in place the asset freeze
and extended for 13 months the expert panel assisting the Sanctions
Committee in monitoring implementation of the remaining sanctions
(the panel's mandate includes assisting the Sanctions Committee
in carrying out its functions; analysing information from States
and relevant bodies; and expediting investigations of non-compliance.)[61]
The subsequent Council Decision and the Council
Implementing Regulation
26.10 The Council Decision and Council Implementing
Regulation that the Committee considered on 24 April implemented
the changes to the UN arms embargo on Libya embodied in UNSCR
2095. They removed the requirement to notify the UN Libya Sanctions
Committee when providing non-lethal military equipment and related
assistance intended solely for humanitarian or protective use,
and when providing such non-lethal equipment and all types of
technical assistance and training intended solely for security
or disarmament assistance to the Libyan authorities. In so doing,
they reflected a recommendation by the UN Panel of Experts for
Libya in its February report.
26.11 The Minister for Europe (Mr David Lidington)
supported the proposal: given the current security situation
in Libya, it was desirable and in line with UK policy to waive
the notification requirement for the non-lethal goods and training
referred to in the Council Decision. The benefit of providing
such goods and training to humanitarian organisations and government
security forces would, he said, greatly assist these entities
in their work to improve public security in Libya, at a time when
the country had a critical need for better-equipped and trained
forces, to enable them to secure borders and to address ongoing
internal security issues. He also explained that in recent months
the Government had been asked by civil security companies to grant
a number of licences for Libya, which would facilitate the Government's
efforts to build effective military and border security forces:
removing the notification requirements would both enable security
companies to provide assistance more easily to the Libyan security
sector and reassure the Libyan government of UK support, thereby
strengthening bilateral relationships. He also noted that the
Libyan Foreign Minister had told the Government that the Libyan
government's prime concern was that the UN Sanctions Committee
responded positively to its requests to build its defence capability:
the proposed changes to the arms embargo would "send a positive
signal to the government that the Sanctions Committee, and the
UK as the Committee's penholder, are supportive of its efforts
to improve its security forces."
26.12 The Minister also noted that a draft Regulation
implementing the assistance-related aspects of the Council Decision
would be available on 22 April 2013, and was scheduled to be adopted
at the first possible opportunity thereafter; and undertook to
provide an update on this "as necessary".
Our assessment
26.13 We asked the Minister to provide an Explanatory
Memorandum on this further Council Implementing Regulation, together
with details of the sort of equipment that was now likely to be
authorised for export, as well as of the nature of the assistance
that was likely to be provided.
26.14 In the meantime, we cleared the Council
Decision and Council Implementing Regulation.[62]
The Council Regulation
26.15 In his Explanatory Memorandum of 24 May
2013, the Minister for Europe (Mr David Lidington) explains that
this Council Regulation implements the changes made to the UN
arms embargo on Libya by UNSCR 2093 which fall within EU competence,
which flow from Council Decision 2013/182/CFSP of 22 April 2013
(see above).
26.16 As such, the Minister says, the Regulation:
— amends
the existing EU Council Regulation implementing the UN arms embargo
on Libya (Regulation (EU) No.204/2011) by removing the notification
requirements to the UN Sanctions Committee for the provision of:
- assistance related to non lethal
military equipment intended solely for humanitarian or protective
use;
- all types of assistance intended solely for security
or disarmament assistance to the Libyan authorities.
— amends
an exemption to the EU-autonomous asset-freeze to facilitate the
return of misappropriated funds to the Libyan State (c.f. paragraph
26.6 above); and
— allows HM Treasury to share information
on frozen assets directly with the Libyan government in order
to assist it in securing the return of misappropriated state assets.
The Government's view
26.17 The Minister comments on the amendments
to the UN arms embargo in the same terms as in April.
26.18 With regard to the exemption to the EU-autonomous
asset-freeze and sharing information on frozen assets, the Minister
says:
"We are now seeing a strong Libyan push under
the new government to recover misappropriated assets. UK
officials are in contact with the Libyan Asset Recovery Committee and
are about to commence a program of technical training
and assistance to public prosecutors, lawyers and judges on that
Committee. This will be a priority part of our engagement
with the new government.
"Further amendments to the Regulation bring
the information sharing provision and relevant asset freeze exemption
in line with the Tunisian and Egyptian regimes. It is hoped this
will enable Member States to assist in the recovery of the Libyan
assets, where relevant."
The Minister's letter of 24 May 2013
26.19 The Minister explains that until the changes
made by UNSCR 2095 in relation to notifying the provision of certain
types of military-related assistance are implemented in the EU,
EU countries are required by existing EU obligations to obtain
the approval of the UN Sanctions Committee before providing such
assistance to Libya: but that, following the UNSCR, these obligations
in practice can no longer be complied with — which means
that the UK, along with other EU countries, cannot provide certain
types of assistance until the adoption of the amending Council
Regulation. With a time lapse of over two months since the UNSCR
was adopted, a backlog of export licences have accrued. It was
therefore essential that this Regulation is adopted at the first
possible opportunity: however, this was too late to be considered
by the Committee ahead of the 27 May Foreign Affairs Council,
which fell within the Whitsun recess period. The need to override
scrutiny on this occasion was therefore, he says, regrettably
unavoidable.
26.20 With regard to the Committee's request
for details of the sort of equipment that is likely to be authorised
for export, and the nature of the assistance that is likely to
be provided to Libya following the EU implementation of UN resolution
2095, the Minister says:
"This depends on the need expressed by the Libyans
and the success of UK business in securing contracts; therefore
it is difficult to accurately state what is likely to be licensed.
The fluid nature of the Libyan internal political and security
situation also creates further difficulty in providing accurate
details of the equipment and assistance that would be approved
following a licence application being submitted.
"In addition to sanctions concerns, all exports
of arms and other controlled military goods for Libya are assessed
on a case by case basis, against the Consolidated EU and National
Arms Export Licensing Criteria, considering the human rights,
internal/regional security, and diversion concerns with Libya.
Within these constraints the Government is keen to encourage UK
exporters to explore business opportunities in post-conflict Libya.
The Libyan authorities have been clear that security is the most
urgent and immediate priority for them, and we are likely to continue
to recommend approval for non-lethal military goods that would
assist in Libyan Government security and disarmament activities,
particularly in border security. Recent examples of approval
include body armour for the Ministry of Interior, armoured personnel
carriers for international missions, de-mining equipment, and
technical assistance/training for security forces. Licences
approved for Libya in 2012 included civil and government communications
equipment, weapons and vehicles for security of international
delegations, armoured carriers for the Ministry of Justice and
amended licences for de-mining equipment."
Conclusion
26.21 On this occasion, we do not object to the
Minister having agreed to the adoption of this Council Regulation
prior to scrutiny in the circumstances he describes, and now clear
it.
26.22 We are reporting it to the House because
of the degree of interest in developments in Libya and in the
easing of EU arms embargoes, and leave it to interested Members
to pursue any questions that may arise as these new arrangements
are implemented in practice via the many other means at their
disposal.
58 Full details of UN Security Council resolution 1970
(2011) are available at www.un.org/News/Press/docs/2011/sc10187.doc.htm. Back
59
For the full background, see (32546) - and (32549) -: HC 428
xviii (2010-11), chapter 12 (2 March 2011). Back
60
See headnote: (34607) - and (34608) -: HC-86-xxvii (2012-13),
chapter 18 (16 January 2013). Back
61
For full background and the text of the Resolution, see www.un.org/News/Press/docs/2013/sc10939.doc.htm. Back
62
See headnote: (34839) - and (34840) -: HC-86-xxxix (2012-13),
chapter 12 (24 April 2013). Back
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