Releasing Frozen Funds to Libyan Rebels a Violation of International Law

On July 15, the ‘International Contact Group on Libya’ held its fourth meeting in the Turkish capital, Istanbul. This meeting saw the participation of two-dozen foreign ministers and other senior officials from several countries, particularly those engaged in the military campaign in Libya, including the foreign ministers of the United States, United Kingdom and France, as well as the Secretary General of NATO.

It is reported that the Russian government declined the invitation to express its disagreement with what it perceived to be violations of the UN mandate by NATO countries engaged in aerial bombardments in Libya since March this year.

According to media reports and declarations of some of the participating delegates, two key things came out of the meeting.

One is that several of the countries officially recognised the Transitional National Council (TNC), the political body of Libyan armed rebels, as ‘the only authority’ they recognise as ‘representing the Libyan people’.

The second one is an interpretation of this act by several media organs and some delegates, particularly those of Britain and France, suggesting that this act of ‘recognition’ would allow various countries to disburse to the rebels frozen assets of the Libyan state. It is these two issues – particularly the last one – that this article critically analyses.

With regard to the recognition of the TNC as ‘the’ legitimate representative of Libya, this and how many countries have recognised the TNC as such is less important for our analysis. However, it is misleading to claim that all the countries that were represented at the meeting, including India and Brazil, have recognised the rebel entity as ‘the legitimate representative’ of Libya. As far as the substance of this recognition is concerned, it is undoubtedly a diplomatic victory for the rebels, but one that should not be exaggerated.

There is a voluminous literature in international law with regard to the recognition of states and governments. Be it the ‘constitutive’ or the ‘declaratory’ school of thought, there is general agreement among international law specialists that the decision to recognise a political entity (state or government) is discretionary for other entities, and that there are no clear cut guidelines for doing so. There is also general agreement that the exercise of this discretion is often guided by political considerations. In fact, in democratic states, consensus may not even exist in this regard between the different independent centres of power on certain matters. For example, the US government through the State Department considers Tibet as ‘part of China’ while Congress think it is a ‘sovereign state under Chinese occupation’.

While the issue of recognising the TNC as the representative of Libya is different from state recognition, as no one has de-recognised Libya as a state, the act of recognising a government or a group as the legitimate authority of an already recognised state follows the same inconsistency as far as criteria and guidelines are concerned. But the act of recognition has its consequences and benefits. And this is what leads us to the second issue – the possibility of some countries deciding to unfreeze Libyan assets and send them to the TNC. The central argument here is that this would be a violation of the Security Council resolutions 1970 (2011) and 1973 (2011) that froze these assets. While states recognising the TNC as their sole interlocutor have every right to do so, the same is not true for the management of these assets. Countries did not freeze them by their own will.

True, both resolutions 1970 and 1973 stipulate that assets frozen shall, at a later stage be made ‘available to and for the benefit of the people’ of Libya. But it is clear from the resolution that any acts with regard to the funds, including explicit exceptional cases, must be referred to and approved by a sanctions committee composed of all the 15 members of the Security Council. Given that calls to disburse these funds to the rebels came following their recognition by certain states that have these funds, it is clear that those contemplating such a move seem to think that they have a right to do so by virtue of recognising the TNC. This would be a clear misreading, for the UN has not recognised the TNT as ‘the’ representative of Libya. Any disbursements of Libyan assets, frozen by the UN without the explicit approval of the same would therefore be a violation of the relevant UN resolutions in this regard.

One may be tempted to draw a parallel with the Ivorian case in which funds had been frozen by certain institutions, particularly the CFA zone West African Development Bank, and then made available to then president-elect Alassane Ouattara while forces loyal to him were still fighting those of outgoing president Laurent Gbagbo. But the comparison would be very misplaced because Ouattara had freely and fairly won the election and had been recognised as the winner by the entities that had frozen these assets and many others including the ECOWAS, AU and the UN.

This is different from Libyan rebels who did not win an election and do not have any such legitimacy. In fact, the TNC is neither broad based nor representative of the majority of Libyans. Of the13 known elements of its declared 33 members, almost all of them are from the East of the country, the majority of them being from Benghazi and surrounding areas, including its head, Mustapha Abdul-Jalil, who hails from Al-Baida, the hometown of King Idriss Sanussi that was overthrown by Qaddafi in 1969.

And contrary to declarations of some delegates of the Istanbul meeting, there does not seem to be any clear indication, at least for now, that the rebels would willingly broaden their geographic or political inclusiveness to represent the majority of Libyans. For example, in early July, Abdul-Jalil, who resigned his Justice Minister post in the Qaddafi regime in February, made a speech in which he praised defectors from the regime, including Musa Kusa, the former Foreign Affairs Minister who has also defected but has not joined the rebels in Benghazi, electing to remain in exile in the UK. But instead of welcoming such a move likely to weaken the government side, a collection of some 12 Benghazi-based civil society organisations and scores of ordinary people sternly rebuffed him for this, arguing that these defectors have the blood of Libyan people in their hands and that they should be instead tried and jailed, according to a 10 July report on Al-Jazeera online in Arabic.

Also, and something that is absent in the post-Istanbul declarations are disquieting facts related to gross human rights violations by the rebels. Just on the eve of that meeting, Human Rights Watch issued a press release enjoining the delegates to press the rebels to ensure the protection of civilians in areas under their control. The organisation referred to an earlier report in which it documented several cases of human rights violations by the rebels in four towns in the Nafusa Mountains in the West of the country, as they damaged property, burned homes, looted hospitals, homes and shops and beat people alleged to have supported government forces. Earlier in May, the World Federation of Human Rights (FIDH) released a report documenting serious and systematic abuses inflicted by the rebels on African migrants, including murder, on the pretext that native Africans were fighting with Qaddafi’s forces.

Clearly, all countries are free to take their chosen course of action, including giving funds to the rebels, as many have been doing anyway. It would appear that some countries are finding it difficult to justify to their taxpayers their continued financial support to the TNC and would like to turn to Libyan funds held in their country. But this does not mean that such actions would lawful or even helpful for the peace process in Libya.

It is also clear that NATO forces are aware that their militaristic approach is not likely to help the situation and that the forceful regime change in Libya is not only in violation of the UN mandate, but will not solve the problem. The likelihood of rebels engaging is mass killings of suspected loyalists to the government and eventually splitting into several warring factions is very high in the event of a violent regime change. But the concerns of several leaders whose countries are involved in the military campaign seem to be more about the possible political consequences of not achieving the regime change agenda in their capitals and not what would happen in Libya.