In his post of 30/03/11, Marko notes the debate surrounding whether the Coalition now taking military action in Libya can arm the rebels fighting in that country. This question is perhaps part of a broader question of whether the coalition can provide other military aid to the rebels, for example, by providing close air support for rebel advances into towns under the control of Col Gaddafi’s forces. As Marko notes, while the US and UK  have both denied that they have made a decision to provide arms to the rebels (see here and here), they have both argued that providing arms to the rebels would not be a breach of the arms embargo imposed by Security Council Resolution 1970. In fact media reports today indicate that President Obama has authorised covert aid to the rebels. Likewise, though there have been denials of direct support from the air for rebel operations on the ground, the media reported that rebel advances on towns like Ajdabiya (and others) was only made possible because of coalition attacks against Libya military forces defending those towns. So, is this direct support for the rebels lawful? When I was asked about the legality of providing arms to the rebels at the start of this week I was of the view that this would be contrary to the arms embargo. Having thought about it a bit more, I have changed my mind about the legality question. Politically, I don’t think it ought to be done unless we know who these people are and what their aims are. The approach that my enemy’s enemy is my friend doesn’t always turn out for the best. We need only think of the experience of arming the Afghan mujahadeen in the 1980s to know that caution is required. But others know far more than I do about whether it is a wise thing to do politically and militarily. As far as law is concerned, such assistance is not, in my view, excluded by the relevant Security Council resolutions. However, the assistance that can be given is also limited by the mandate that Security Council Resolution 1973 confers. The assistance must be directed, solely, at protection of civilians and civilian populated areas.The argument of the US is that SC Res 1973 in authorising all necessary measures to protect civilians and civilian populated areas under threat of attack amends the absolute arms embargo imposed by paragraph 9 of SC Res 1970. I agree that the arms embargo can no longer be regarded as absolute. Recall that the arms embargo requires:

” . . . that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories . . .”

However, paragraph 4 of SC Res 1973 “Authorizes Member States . . .  to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (emphasis added). The US (see here) seems to place much weight on the fact that the authorisation to take all necessary measures is made notwithstanding the arms embargo. For them there is an explicit exemption. However, even if those emphasised words were not present in the resolution, the authorisation to use force must create some exemption from the arms embargo. The embargo prevents any transfer of arms to Libya. It is not just about preventing transfers to the Libyan government but precludes any transfer of arms to the territory of Libya. This territorial embargo is how all UN Security Council arms embargoes are interpreted, unless the resolution says otherwise and the embargo is specifically limited to particular groups (as happens on occasion, eg see SC Res 1807, para. 1 on Congo).  At the very least those States using force in and against Libya must be entitled to transfer their own arms, for their own use, to the territory (which includes the airspace) of Libya. If this were not so, the authorization to use force while maintaining an absolute arms embargo, would be meaningless. Even without  words similar to the words in para. 4 of SC. Res 1973, when the Security Council has authorised States to take enforcement action after having previoulsy imposed an arms embargoes, that arms embargo is not deemed to apply to those States when acting within the UN mandate. So though SC Res 661 (1990) required States to prevent the supply from their territories or by their nationals to any person in Iraq or Kuwait, it was of course not interpreted as preventing the coalition that acted there from supplying their own troops acting pursuant to SC Res 678 (1990). Likewise though SC Res 733 (1992) imposed a general and complete embargo on all arms to Somalia it was implicitly modified by SC Res 794 (1992) which authorised the use of all necessary means to establish a secure environment for humanitarian relief since the embargo was not interpreted as applying to arms brought in by those implementing that mandate.

So the text, the practice and indeed the object and purpose of the resolution (1973) supports the US argument that the authorization to use all necessary means amends the arms embargo somewhat. The only question is how far does it do this. Does Res. 1973 allow transfer of arms by those acting to enforce the mandate to others who are also acting to do the same? If the US were to transfer arms to the UK or the French for use in Libya I fail to see how this would not be permitted by Res 1973 since it is within the mandate of using all necessary means to achieve the goals of the resolution. Or if a US plane were to refuel a UK or Canadian plane over Libyan territory that would be assistance related to military activities (within the meaning of para. 9 of Res. 1970) but would be assistance permitted by para. 4 of SC Res. 1973. If that is correct, it is established that transfers to, or as assistance of others, acting to fulfil the mandate is permitted. The only question that is left is to ask whether the situation is different when the transfer or assistance is not to another coalition State but to the rebels. It could be argued that para. 4 of SC Res. 1973 expressly allows States to act either nationally or through regional arrangements, thus expressly permitting transfers to or assistance of other coalition members but not otherwise. But this would be rather limiting as it would mean that assistance could not be given to Arab States acting to enforce the no-fly zone as they are not part of NATO.  Furthermore, the reference to acting nationally or through regional arrangments is not intended to limit the authorization but rather to make clear that force can be used in different ways. More importantly, the authorization is to use all necessary means to achieve a goal and there is no reason why this must be done directly and not indirectly. The authorization is effectively an authorization to use force. Under international law States may use force either directly (through their own armed forces) or indirectly (by providing support to non-State groups) [ see the Nicaragua case in the ICJ]. If a State is authorised to use force it may choose to do so directly or indirectly. This may include providing support or arms or other assistance to non-State groups in order to fulfill the mandate.

Having said that arming the rebels would in principle be permitted, there is a limitation on this. The purpose of such an act must be to protect civilians or civilian populated areas. In short, the permission (if one may call it such) to assist the rebels is only valid in so far as it is for the purpose of carrying out the mandate in SC Res. 1973. Assistance must not be given to achieve other goals. Otherwise the giver of the assistance is going beyond para. 4 of SC Res 1973 and would then be caught by the arms embargo in SC Res. 1970. The effect of this would be that assistance to  the rebels is only permitted in order to protect civilians or civilian populated areas. It is not permitted to assist the rebels in order to achieve the goal of overthrowing the Gaddafi government. The view may be taken that removing Gaddafi’s government is what is necessary to carry out the mandate. This is a possible view but I think it goes too far. Civilian protection may be achieved by a stalemate in Libya with Gaddafi in control of the areas he currently controls and the rebels in control of the areas they control. As far as I know (and I may be wrong) there is no allegation that the civilians in Western Libya are currently in need of protection. Of course this may change, but if it doesn’t, then what is required to achieve the mandate of civilian protection and protection of civilian populated areas is that Gaddafi’s forces must not be allowed to take the towns and cities he has lost. Achieving that mandate does not require removing Gaddafi from control of the areas he currently controls. Now, this is incredibly messy politically. That may well be so, but a stalemate would protect civilians.  So it may be lawful to assist the rebels to defend the areas they hold but not to assist them to advance on other towns. Indeed the rebels advancing on towns and cities controlled by Gaddafi is a threat of attack on civilian populated areas which UN States have a mandate to stop and prevent (though not required to do so). Also, for the reasons outlined in this pragraph, providing close air support for rebels to advance goes beyond the mandate in SC Res 1973

This analysis is complicated by the fact that once rebels are armed the States that armed them may not have control over what is then done with the arms. Arms given (at least ostensibly) for defence of areas under rebel control could and probably would be used for offensive purposes by the rebels. So there is a big loophole here. One can conceive of States giving assistance supposedly to help the rebels bolster their defences but hoping that this helps turn the tide in the war against Gaddafi. I’m not sure that this loophole can be closed. The least that can be said is that once the rebels act offensively there would be an obligation to stop any further assistance.

UPDATE: Many thanks to Emanuele Somario for the comment on Marko’s post which he posted at almost the same time as I posted this piece (see here). Emanuele supplies a link to a piece on Sky News setting out the different positions taken by the US, NATO and UK on arming the rebels. Readers will probably note that my analysis above supports the UK position. You can also view an interview with UK Foreign Secretary William Hague on the BBC where he addresses this issue and sets out the UK’s interpretation of the resolutions (see here at about 2.18mins). One of the things that is evident in all of this (from the careful statements being made) is that the US State Dept and UK Foreign Office lawyers have been hard at work advising their respective bosses on this question.

(cross-posted from http://www.ejiltalk.org/)

Dapo Akande is Co-Director, Oxford Institute for Ethics, Law and Armed Conflict (ELAC), University Lecturer in Public International Law and Yamani Fellow, St Peter’s College Oxford.