1. The legal foundations for doing so are shaky.
UN Security Council Resolution 1970 (2011) of 26 February 2011 unequivocally states “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.” Exceptions to this rule may apply, subject to approval by a Committee consisting of all members of the Security Council, to “non-lethal military equipment intended solely for humanitarian or protective use”, “protective clothing, including flak jackets and military helmets, temporarily exported to the Libyan Arab Jamahiriya by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, for their personal use only; or “other sales or supply of arms and related materiel, or provision of assistance or personnel.” The terms of reference of this arms embargo leave little room for interpretation.
Some have argued that UN Security Council Resolution 1973 (2011) of 17 March 2011 provides justification for arms supplies when it “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.” At best, one could argue that under Security Council Resolution 1973 (2011) it would be legal to supply military equipment whose only purpose is to protect civilians and civilian populated areas. However much military technology may have advanced, it is difficult to see what kind of equipment would readily and effectively serve a purely defensive purpose, and even if it existed how it would contribute to stabilisation and de-escalation in Libya.
2. We could not ensure arms supplies are used for their intended purposes only.
Related to this first objection is a second one: once arms have been supplied to rebel forces, it is difficult to imagine how the current coalition could ensure that they are only used within the terms of an anyway controversial interpretation of Security Council Resolution 1973 (2011). Initially, rebels might indeed use military equipment supplied to them for protecting civilians from the attacks of pro-Gaddafi forces, but it is unlikely that they would leave them behind should they be in a position to go on the offensive, pursue retreating Gaddafi loyalists, and/or when they eventually gather strength and momentum to advance towards Tripoli. Nor could it be excluded that they might use such equipment to exact revenge, including on civilians who may have supported Gaddafi. Can we really be sure that all in the rebel forces are so dissimilar from Gaddafi and other dictators across the Middle East who cling on to power by using military equipment against civilian protesters-equipment supplied from the outside, including by the permanent members of the Security Council. Above all, the ever-deteriorating situation in Yemen is an uncomfortable reminder of the many uses of arms supplied, quite possibly, with the best of intentions, as are, in different ways, post-1979 Afghanistan and post-1999 Kosovo.
3. It would undermine further any broader international support for future R2P missions.
The third objection is a more forward-looking one. The passage of Security Council Resolution 1973 (2011), made possible by Russia’s and China’s abstention, was nothing short of a small miracle and hailed as such by supporters of the principle of the Responsibility to Protect (R2P). Subsequent debate on its implementation already indicated that the underlying consensus was being stretched to its limits. Any further stretching, and particularly direct arms supplies to rebel forces, would likely not only deepen the rifts in the current coalition of support for action against Gaddafi, but it would make it very unlikely indeed to get further R2P missions approved in the Security Council. In other words, one of the perverse consequences of arms supplies to anti-Gaddafi forces might be that innocent civilians in the next Libya, or Rwanda, or Darfur-none of which are really that far off in either time or space-will not receive any of the international support that advocates of R2P are so keen to extend to them, and in some cases rightly so.
A further Security Council resolution specifically authorising arms supplies to rebels would effectively address the first and third objections, but do little to erase concerns related to the use of military equipment supplied. As the situation on the ground in Libya heads towards a military stalemate and quite possibly a prolonged civil war-with or without arming the rebels-efforts by the international community might be better directed at finding a negotiated way out of the current crisis (even at the cost of some unpalatable concessions to Gaddafi and his regime) rather than looking for loopholes in the existing international legal framework that would all but intensify the fighting and lead to more deaths. Thus far, the enforcement of the no-fly zone, however controversial in its means, has served its purpose and stopped Gaddafi’s forces from further advances. Perhaps it is time to scale back military talk and give diplomacy another chance, including by working closely with the rebels. This would be a real demonstration of international leadership.