By: Thom Shanker and Charlie Savage
March 31, 2011
WASHINGTON — Members of the NATO alliance have sternly warned the rebels in Libya not to attack civilians as they push against the regime of Col. Muammar el-Qaddafi, according to senior military and government officials.
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. “We are working very hard behind the scenes with the rebels so we don’t confront a situation where we face a decision to strike the rebels to defend civilians.”
The warnings, and intense consultations within the NATO-led coalition over its rules for attacking anyone who endangers innocent civilians, come at a time when the civil war in Libya is becoming ever more chaotic, and the battle lines ever less distinct. They raise a fundamental question that the military is now grappling with: 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.”
Oana Lungescu, the senior NATO spokeswoman, emphasized that NATO was taking action because Qaddafi’s forces were attacking Libyan civilians, including shelling cities with artillery. She said that if the rebels do likewise, the organization will move to stop them, too, because the United Nations Security Council resolution “applies to both sides.”
“Our goal, as mandated by the U.N., is to protect civilians against attacks or threats of attack, so those who target civilians will also be targets for our forces, because that resolution will be applied across the board,” she said.
But it is no simple matter to follow that logic.
“Qaddafi is trying to take advantage of this mixing of combatants and noncombatants to deter NATO from striking,” said one Obama administration official who was briefed on the intelligence reports.
Even though rebel forces were in retreat on Wednesday, the civil war has seen repeated advances and retreats by both sides, and that is expected to continue. The highest concern is not how to deal with fighters who are loyal to the regime, but how NATO would respond to rebels firing on a town of Qaddafi sympathizers, like Surt.
Calls by some NATO members to provide heavier weapons to the rebels suggest that these worries will only intensify.
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 saided. “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.”