Maddalen Martin-Arteche , 29 juin 2020

In September 2019, the United Nations (UN) launched a consultation process on Libya, the so-called “Berlin Process”, with the aim to unify the International Community’s response towards a peaceful solution to the on-going political crisis and military conflict in Libya, where the UN-recognized Government of National Accord (GNA) is fighting the forces of military commander Khalifa Haftar, who leads the Libyan National Army (LBA).

In the framework of the “Berlin Process”, an international conference was held in Berlin on 19 January 2020. Participants committed, inter alia, to implementing the arms embargo on Libya established by the UN Security Council Resolutions 1970 (2011), 2292 (2016) and 2473 (2019), respectively.

On 17 February 2020, the Council of the EU adopted, on the basis of Articles 42(4) and 43(2) of the Treaty on European Union, a new Common Security and Defence Policy operation, called EUNAVFOR MED IRINI, in order to implement the UN arms embargo on Libya by employing aerial, satellite and maritime assets in the Mediterranean Sea. Operation IRINI has been vested with the power to inspect vessels bound to or from Libya where there are reasonable grounds to believe that such vessels are carrying arms or related material to or from Libya, directly or indirectly, in violation of the arms embargo. Operation IRINI intends, in addition, to implement the UN Security Resolutions 2146 (2014), 2509 (2020) and 2510 (2020) that seek to prevent the illicit export of petroleum from Libya; and to disrupt the business model of human smuggling and trafficking networks operating in Libya.

The implementation of the UN arms embargo on Libya has already encountered difficulties. By way of example, on 10 June 2020, a Turkish warship would have prevented a Greek navy ship working under Operation IRINI from checking a cargo vessel off the Libyan coast suspected of being involved in arms trafficking. Turkey is furthermore accused of having sent fighters to Libya to support the GNA. In turn, Turkey has critised Operation IRINI for being biased against the GNA and has accused France of fueling political instability in Libya by supporting the LNA.

Notwithstanding the relevance of the UN arms embargo on Libya, the problem of uncontrolled arms transfers remains the elephant in the room. According to the 21 November 2019 Council report concerning exports of military technology and equipment, France granted permits worth 14.1 and 9.5 billion euros for arms deals with Egypt and the United Arab Emirates (UAE), respectively, and 295 million euros for arms deals with Libya in 2018. It is interesting to note that Egypt and the UAE are said to be supporting the LNA.

The aforementioned permits raise questions as to their compatibility with the UN arms embargo on Libya. Indeed, the 29 November 2019 Final Report of the Panel of Experts on Libya established pursuant to Security Council resolution 1973 (2011) found that both the GNA and the LNA “received weapons and military equipment, technical support and non-Libyan fighters in non-compliance with the sanctions measures related to arms”. And that “Jordan, Turkey and the United Arab Emirates routinely and sometimes blatantly supplied weapons, employing little effort to disguise the source”. 

The grant of arms permits would also be contrary to the spirit of the 2008 Council’s Common Position defining common rules governing control of exports of military technology and equipment. In particular, the 2008 Common Position asks Member States to decide whether to grant licence applications for items on the EU Common Military List on the basis of a list of criteria, including the “existence of a risk that the military technology or equipment will be diverted within the buyer country or re-exported under undesirable conditions”. On 16 September 2019, the 2008 Common Position was amended to take into account developments at the International and European level, namely, the entry into force in 2014 of the UN Arms Trade Treaty, which regulates the international trade in conventional arms and which all EU Member States are party to, and the adoption on 19 November 2018 of the EU Strategy against illicit firearms.

According to the 21 November 2019 Council Report, full implementation of the 2008 Common Position by the EU Member States is yet a pending task. Member States’ claim for an exclusive competence as regards arms export policies, based on Article 346 of the Treaty on the Functioning of the EU, as well as their divergent interests vis-à-vis third countries to which they deliver arms, would be deterring full implementation of the 2008 Common Position.

Maddalen MARTIN, The UN arms embargo on Libya and its implementation at the EU level, actualité du CEJE nº 28/2020, disponible sur www.ceje.ch