A senior French diplomatic source who wished to remain nameless told Channel 4 News that the weapon drop “was an operational decision taken at the time to help civilians who were in in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat.”
“It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter and it can be assured that there will be no diplomatic crisis despite what the African Union and Russia may say,” the diplomat said.
“France will not rule out more weapon drops in the future as we will take every decision on a case by case basis,” he added. (see also France 24)
It has also been reported that Russian Foreign Minister Sergei Lavrov has stated that
“If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya].”
The battle lines are clearly joined on this issue. Marko and I discussed this issue back in March (see here for my post and here for Marko’s) with comments from readers. My own view remains that SC Res 1973 which “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” (emphasis added) explicitly and also structurally creates an exception to the arms embargo in SC Res 1970. However, as I stated at the time, it is only lawful to provide arms to the rebels if that is for the purpose of defending civilians or civilian protected areas. It is unlawful to provide arms for aims that go beyond defence of civilians and civilian protected areas. This is the position taken by the UK Foreign Office and restatedin relation to this incident (see here).
What the French have done appears to me to be well within the scope of SC Res 1973, if the facts are as presented by France. According France 24:
Colonel Thierry Burkhard, spokesman for the French general staff, told AFP that the shipments were essentially light arms such as assault rifles to help civilian communities protect themselves from regime troops.
Burkhard said France had become aware in early June that rebel-held Berber villages in the Djebel Nafusa highland region south of the capital had come under pressure from the Libyan strongman’s loyalist forces.
“We began by dropping humanitarian aid: food, water and medical supplies,” he said. “During the operation, the situation for the civilians on the ground worsened. We dropped arms and means of self-defence, mainly ammunition.”
Burkhard described the arms as “light infantry weapons of the rifle type” and said the drops were carried out over several days “so that civilians would not be massacred”.
In this case, it appears that the supply was regarded a measure necessary for the immediate protection of a civilian community. However, the worry is that supply of weapons would go further than this and would be for the purpose of removing Colonel Gaddafi. It has also been reported that this is someting contemplated by France.
According to Le Figaro, which said it had seen a secret intelligence memo and talked to well-placed officials, the drops were designed to help rebel fighters encircle Tripoli and encourage a popular revolt in the city itself.
Whether this would be lawful or not would depend on whether such action comes within scope of the “all necessary measures” authorization in SC Res. 1973. That would in turn depend on whether taking Tripoli and ejecting Gaddafi is regarded as necessary for civilian protection.