The Algerian government's decision to provide refuge to Col. Muammar al-Qaddafi's wife and children (and apparently a newly born grandchild) would appear at first glance to constitute a clear-cut violation of a U.N. measure banning travel by the Libyan leader and members of his inner circle.
On June 24, the U.N. Security Council adopted a resolution imposing a travel ban and asset freeze on the Libyan leader, his relatives, and closest associates. Qaddafi's wife, Safia; daughter, Aisha; and two sons, Hannibal and Mohammed, who fled Libya for Algeria on Monday, are named in a list of individuals banned from traveling outside Libya.
Resolution 1970 "decides" -- that's U.N.-speak for making it legally binding on member states -- that all U.N. members "shall take the necessary measures to prevent the entry into or transit through their territories of individuals" named on the travel ban. The U.N. Security Council justified the decision to list the Qaddafi's on the grounds of "closeness of association with regime."
But there's a huge loophole in Resolution 1970 that provides the Algerians with broad legal cover for spiriting the Qaddafis out of the country in the pursuit of peace.
According to the resolution, the travel ban can be circumvented in cases "where a State determines on a case-by-case basis that such entry or transit is required to advance peace and stability in the Libyan Arab Jamahiriya." Under the terms of the exemption, Algeria would be required to notify the U.N. committee responsible for enforcing sanctions on Libya within 48 hours after making the decision.
But it may be a stretch to argue that accepting the fleeing relatives of Qaddafi is making a contribution to a peace process in Libya. In fact, it may contribute to a serious deterioration of relations between Libya's opposition leaders and Algeria.
Traditionally, exemptions to U.N. Security Council sanctions require approval by the U.N. sanctions committee. But in this case, someone clearly carved out an exception, a move that appears designed to offer a backdoor exit to top members of Qaddafi's regime, including the Libyan leader himself.
An effort to reach the Algerian mission to the United Nations was unsuccessful. A man answered the mission's phone, but said that he could barely speak English and that nobody was working at the mission today or tomorrow, in any case.
The Algerian Foreign Ministry, meanwhile, has defended its decision on "humanitarian grounds," providing another hint of Algeria's strategy for avoiding a fight with the 15-nation Security Council.
In a letter on Monday to the U.N. Security Council president, India's Hardeep Singh Puri, Algeria's ambassador to the United Nations, Mourad Benmehidi, confirmed that a bus and a Mercedes-Benz carrying members of the Qaddafi clan crossed the border into Algeria at 8:45 a.m. (Algerian time) on Monday. He said that one of the travelers, an apparent reference to Aisha, gave birth to a child "on that same day on the border without medical assistance."
"I would like to inform you that the Algerian government allowed them access to Algerian territory on humanitarian grounds.
There are in fact numerous potential exemptions that would allow a state to accept an individual on the banned list, including those for humanitarian or religious reasons.
However, the resolution makes it clear that the U.N. sanctions committee, which includes all of the council's 15 members, is responsible for approving exemptions on a "case by case" basis -- not Algeria.
Other grounds for exemption including providing entry or transit into a country "for the fulfilment of a judicial process." For instance, transferring the Libyan leader and his son, Saif al-Islam, through Paris or Geneva en route to The Hague would be fine. But that doesn't appear to be the intention of the Algerians.
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Longtime Washington Post correspondent Colum Lynch reports on all things United Nations for Turtle Bay.