Though it’s gotten relatively less play than the story about CIA boots on Libyan soil, annother NY Times report answered a crucial question today: whether NATO is backing the rebels (consistent with an invasion where humanitarian concerns are a smokescreen) or backing Libyan civilians (consistent with the R2P doctrine). A lot of discussion centered on whether it would be legitimate to arm the rebels (looks like that’s been ruled out) but the more cogent question from an R2P perspective was always how NATO would deal with ill-treatment of civilian Gaddafi supporters by the rebels themselves in towns they claimed.
And though I was as worried as anyone about how this would play out, once again the answer appears, at least for now, to be reasonably consistent with R2P norms:
As NATO takes over control of airstrikes in Libya and the Obama administration considers new steps to tip the balance of power there, the coalition has told the rebels that the fog of war will not shield them from possible bombardment by NATO planes and missiles, just as the regime’s forces have been punished.
“We’ve been conveying a message to the rebels that we will be compelled to defend civilians, whether pro-Qaddafi or pro-opposition,” said a senior Obama administration official.
But the Times goes on to spell out the age-old conundrum for weapons-bearers, compounded by the particular nature of NATO troops’ mission: how to identify the “real” civilians for the purpose of carrying out their protective mission, that is, knowing precisely who to target for targeting them:
Who in Libya is a civilian?In the early days of the campaign, the civilian population needing protection was hunkered down in cities like Benghazi, behind a thin line of rebel defenders who were easily distinguishable from the attacking government forces. That is no longer always the case. Armed rebels — some in fairly well-organized militias, others merely young men who have picked up rifles to fight alongside them — have moved out of Benghazi in an effort to take control of other population centers along the way, they hope, to seizing Tripoli.
Meanwhile, fresh intelligence this week showed that Libyan government forces were supplying assault rifles to civilians in the town of Surt, which is populated largely by Qaddafi loyalists. These civilian Qaddafi sympathizers were seenchasing rebel forces in nonmilitary vehicles like sedans and trucks, accompanied by Libyan troops, according to American military officers.
The increasing murkiness of the battlefield, as the freewheeling rebels advance and retreat and as fighters from both sides mingle among civilians, has prompted NATO members to issue new “rules of engagement” spelling out when the coalition may attack units on the ground in the name of protecting civilians.
It was unclear how the rules are changing — especially on the critical questions surrounding NATO’s mandate and whether it extends to protecting rebels who are no longer simply defending civilian populated areas like Benghazi, but are instead are themselves on the offensive.
“This is a challenge,” said a senior alliance military officer. “The problem of discriminating between combatant and civilian is never easy, and it is compounded when you have Libyan regime forces fighting irregular forces, like the rebel militias, in urban areas populated by civilians.”
Others are echoing this discourse about the muddiness of civilian protection.
So let’s cut through this fog a little bit. The laws of war on who counts as a “civilian” for the purposes of preventing war crimes are actually fairly simple in this regard. But the truth is it is noncombatants who need protecting, not “civilians” per se.
In war law terms, a “civilian” is anyone falling outside the “combatant status” category which would include regular and irregular forces – that is, all individuals with the right to participate in hostilities and claim POW status if captured. However in practical terms civilians can act as de facto “combatants” without having formal “combatant status.” They do so whenever they take up arms and participate directly in hostilities. Most of the time this is illegal (which is to say, they could be tried for it later, unlike POWs) but in the case of Qaddafi supporters defending Sirte, this would probably be considered under the doctrine of levee en masse, which legitimizes the spontaneous formation of civilians into a defensive force upon the approach of an enemy to the boundary of their town or city.
So long as they are thus engaged, however, they are not noncombatants as far as knowing who to shoot at is concerned. Anyone directly participating in hostilities is a valid military target. So NATO troops would not need to punish rebels for firing at armed Sirte civilians defending the city; nor should they punish those defending the city for firing on armed rebels.
The problem would be with either side targeting noncombatants directly or indiscriminately – civilians not participating in hostilities or, for that matter, former combatants who are no longer doing so. The role of NATO forces should be to prevent the killing of noncombatants in either category, irrespective of technical civilian status or allegiance to the rebels. Whether they’ll be able to walk this fine line is anybody’s guess, but the fact that they’re embracing the complexity of the situation is itself completely consistent with humanitarian rules.