The deliberations about where to draw the line, going on at the highest levels of allied nations and among senior officials across the Obama administration, show how an intervention to stop a potential massacre is evolving into a much more complex, and perhaps open-ended, role in policing the Libyan chaos.
The situation is as complicated legally as it is militarily. The United Nations Security Council resolution that authorized a no-flight zone and other steps in Libya makes no distinction between pro-rebel and pro-Qaddafi civilians.
Senior legal advisers to the military campaign say that unarmed civilians, whether living in towns or fleeing the fighting, are clearly meant to be protected by the United Nations resolution, while opposition forces taking an active part in combat away from cities are currently seen as falling outside of its protection. But one such official acknowledged that there are other situations that are much less clear.
Noncombatants and the various shades of opposition, resistance and rebellion “are so intermixed that it is not feasible to discern where the boundary between the civilians and opposition forces lie,” the official said. “There are also those civilians entitled to protection that may be armed in order to protect their families, homes, businesses, and communities. Other civilians may join the rebels at certain stages, becoming armed combatants, and then decide to return home for whatever reason, thus transitioning back to civilian non-combatants.”
At times when the rebels are gaining ground, the allies fear that the rebels will inevitably try to take loyalist cities by force, and could end up endangering or even killing civilians there. That is what prompted the coalition’s warnings to the rebels, administration officials said.
The specifics of the warnings — like when they were conveyed, who delivered them, and to which rebel leaders — remained unclear.
The traditional laws of war distinguish between combatants, who may be lawfully attacked, and civilians, who generally must be protected. Civilians who pick up weapons and join in fighting can be lawfully attacked as long as they are directly participating in hostilities.
But the laws of war are vague about how to categorize internal rebels, rather than external enemies. And the recognized government of a country — even an internationally despised one like the Qaddafi regime — is generally seen to have a right to use force to put down an armed insurrection, said David Glazier, a professor of national-security law at Loyola Law School-Los Angeles.
“I don’t know that we have distinguished between civilians who are truly nonparticipants in the conflict and who no one has any right to attack, and those civilians who have taken up arms in revolt against the government and so are legitimate targets,” Mr. Glazier sided. “This is all poorly defined. It really is all about politics, and not at all about law.”
On March 21, in a briefing with reporters, Tom Donilon, the national security advisor to President Obama, appeared not to distinguish between armed rebels and other citizens of Libya who opposed the Qaddafi government.
“They are citizens of Libya, and they are civilians,” he said, referring to the rebels. “They’re not military forces under the direction and control of Qaddafi.”
But that same day, General Carter Ham, the head of United States Africa Command, said that opposition forces with heavier weaponry would not qualify for protection the way civilians would, and he acknowledged that “it’s not a clear distinction, because we’re not talking about a regular military force — it’s a very problematic situation.”
“These are situations that brief much better at a headquarters than they do in the cockpit of an aircraft,” General Ham said, adding that “if it’s a situation where it’s unclear that it is civilians who may be being attacked, then those air crews are under instruction to be very cautious and not apply military force, again, unless they are convinced that doing so would be consistent with their mission to protect civilians.”
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