Arming the Libyan rebels: a legal move?

In light of conflicting British and American statements, the Prime Minister and the Foreign Secretary were both asked in the Commons last week, does UN Security Council Resolution 1973 (2011) permit the coalition to arm the rebels in Libya?

The answer to this question is yes. And no.

We must take article 4 of resolution 1973 as our starting point:

“Protection of civilians

“4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, 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, including Benghazi..."

The "notwithstanding" means that the arms embargo [resolution 1970 (2011), para 9] doesn't apply in relation to protecting civilians. In my opinion, under the Protocols to the Geneva Conventions, the rebels are not civilians. Protocol II of 1977 was added in order to explicitly extend the humanitarian protection provided by the Conventions to cover civil wars. Up until this point, war crimes prosecutions only concerned state v state conflict.

Civilians are defined in article 50 of Protocol II. The term "civilians" does not include members of the armed forces of a party to a conflict. Article 43 states: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.”

The rebels have come together to form an armed force and appear to be acting under a command; however, in light of recent news footage, whether they are indeed "organized" is perhaps open to debate. If they are not members of an armed force proper, they are certainly militia, which includes organised resistance movements and civilians who have spontaneously taken up arms (Jean-Marie Henckaerts, Louise Doswald-Beck, International Committee of the Red Cross, Customary International Humanitarian Law: Rules, p 15).

Therefore, the rebels are not civilians.

What does this mean? In my opinion, the coalition is entitled to arm civilians in order that they might protect themselves. The coalition could also arm the rebels, for the purposes of protecting civilians, but not solely for the purpose of advancing. Of course, if the rebels were armed, it could be difficult to enforce this distinction.