Mélange du Mercredi/Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict

Welcome to Mélange du Mercredi (Wednesday Mix). Each week, we highlight one of the latest and greatest in reading, film and other scholarly resources, focusing on a variety of issues pertaining to international humanitarian law. As always, if you have suggestions, or would like to submit a post on something you feel our readers will also enjoy, we're happy to include them. Just email Editor Niki Clark

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This week Kenneth Watkin has written a summary exclusively for Intercross of his new book, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict (Oxford University Press, 2016). 

The international law governing armed conflict is at a crossroads.  A well-established framework of law that has primarily been designed to control the resort to, and conduct of inter-State conflict is now being forced to confront 21st Century violence. The contemporary threats are significantly different than those of the previous century.  While the danger of inter-State conflict remains real, the predominate security threats involve insurgencies with violence sometimes bordering on the level of inter-State conflict, transnational terrorism, and criminal gangs transcending national borders. Even when conventional war between States has occurred it has been followed by lengthy counterinsurgencies where terrorism and criminal activity have flourished. These subsequent internal conflicts have presented a much more significant challenge than simply defeating the State’s conventional forces

Conflict between states and non-state groups is not new. What is new is that non-State actors increasingly operate transnationally. For example, the Islamic State and Al Qaeda have been recognized by the United Nations as global threats. Non-State actors do not respect the borders upon which the State-focused international law system is based. The impact of transnational terrorism has been felt in such diverse locations as Paris, Sousse, the Sinai, Brussels, Istanbul, Dhaka, Nairobi, Ottawa, Baghdad and Orlando. The transnational threat is not limited to radical jihadists, or other terrorist groups. Many threats occur at a point on the violence spectrum where the armed conflict and law enforcement paradigms overlap. A particular challenge for international law is how to deal with threats that resemble “criminal insurgencies”, such as where drug trafficking paramilitary gangs take on the attributes of insurgent groups challenging the State in a competition for ungoverned or poorly governed spaces. Added to this are uniquely criminal gangs focused on economic gain.  These groups thrive in regions where governance is weakest, and seek to perpetuate ineffective governance instead of seizing the reins of government. They engage in acts such as piracy and hostage taking that threaten the citizens of more stable States.

One of the greatest challenges facing the international legal community is the historically State centric focus of international law with its overwhelming emphasis on inter-State warfare. While there is a relatively well developed body of treaty and customary law applicable to international armed conflict, the same cannot be said for conflict with non-State actors.  Further, there is an interpretive preference to treat the various bodies of law impacting on armed conflict in an exclusionary fashion. Those laws include international humanitarian law; the law governing the recourse to war, including State self-defence; international human rights law; domestic law, including human rights law; and international criminal law. In addition, international lawyers have a communication challenge. The highly technical, and even insular nature of this aspect of international law is reflected in the tendency by international lawyers to use Latin (e.g. jus ad bellum, jus in bello, lex specialis, lex lata) to describe concepts that need to be communicated to a 21st Century audience. The use of such terms does not effectively contribute to resolving these complex strategic and operational challenges.

Practitioners often find themselves struggling to simultaneously apply these international and domestic bodies of law in order to counter the threats posed by non-State actors.  Part of that struggle arises from the limits or “boundaries” practitioners are confronted with as they attempt to apply these areas of law.  The boundaries placed around these bodies of law are twofold.  First, there is the outer limits of established treaty and customary law, which is in turn limited by a historic focus on inter-State conflict. Secondly, internal barriers are frequently applied between each area of law.  One example of the internal boundaries is the separation of the law governing State self-defence from humanitarian law. The purpose is to ensure the application of the latter body of law equally to all belligerents notwithstanding the purpose for which they are fighting. Another example of the separation between bodies of law has become almost ideologically charged. In that regard it is not uncommon to have the respective proponents of international humanitarian law and human rights law deny any application of the other body of law in the midst of armed conflict. The emphasis on legal boundaries results in formal, and frequently rigid, approaches towards applying each legal framework. Such formalism does not work well in practice. In this respect, the theoretical discussion can often appear to be far removed from the practical security challenges facing States.

However, while lawyers seem increasingly mired in debate about such issues the nature of conflicts involving 21st Century security threats is forcing reconsideration of these categorical approaches.  As Adam Roberts has noted the separation between the law relating to State self-defence and humanitarian law “has never been absolute”, and conflicts within States and against terrorism “have always raised difficult challenges in relation to the application—let alone the equal application—of the laws of war.”  Contemporary conflict is forcing legal practitioners to consider the application of law in its broadest sense. This has led to the adoption of the doctrinal term “operational law” to describe the wide range of international and domestic laws impacting on military operations.  The change toward a more holistic approach is also reflected in Harold Koh’s 2010 reference to “the law of 9/11”, and a United States commitment to comply “with all the applicable law, including the laws of war, in all aspects of these ongoing armed conflicts.”  However, it remains to determine how these bodies of law interface and interact.  This issue can arise in a myriad of contexts including the simultaneous application of the law governing State self-defence and humanitarian law, the human rights and humanitarian law interface, the post 9/11 “drone war”, the categorization of conflict, and the protection of nationals.

Notwithstanding the “secularization” of international law a basis for assessing the interaction of these bodies of law arises from their grounding in Just War theory.  Of particular relevance is the “proper authority” principle, which makes the State the focus of the external use of force (international armed conflict), as well as responsible for the maintenance of order over those being governed (conflict not of an international character). It is the obligations of governance that mandates the application of human rights based norms whether operating within the State’s own territory, or, consistent with an increasingly accepted view, externally within another (e.g. occupation, assistance to another State fighting an insurgency). However, one challenge in assessing how the various bodies of law interact is reflected in the often confusingly common use of Just War based terminology such as necessity, proportionality, imminence, immediacy, etc. For example, despite their shared origins, terms like necessity and proportionality do not mean the same thing when dealing with State self-defence, humanitarian law, or human rights based law enforcement.   

Turning first to the interface been humanitarian law and the law governing State self-defence, two theories have been developed. Considered largely in the context of inter-State warfare one theory argues for an “overarching” application of the law controlling State self-defence, and the other a more “limited” approach.  Under the “overarching” theory the State self-defence principles governing the use of force are seen as having a continuing impact throughout the subsequent conflict, even controlling how hostilities are conducted, its geographic scope, the choice of legitimate military targets, types of weapons used, the conduct of an occupation, etc.  The more “limited” theory also acknowledges a continuing application of self-defence principles during limited defensive reactions by States, but significantly not in the context of a war involving a comprehensive inter-State use of force. Following the attacks of 9/11 there has been an increasing acceptance that self-defence can be exercised by States against non-State actors without the threat posed by the latter group being attributed to a State. This raises the issue of the applicability of the “overarching” and “limited” theories to these defensive responses. However, an armed conflict with non-State actors can never constitute a “war” as contemplated by the more limited theory. This means that the law governing State self-defence continues to apply throughout the conflict with non-State actors regardless of whether the “overarching” or more “limited” theory applies.  Therefore, as States take defensive action against these groups they must reconcile the interaction between the law governing their course to war and that applicable to the conduct of hostilities.

What does this mean in practical terms? The interaction of the two bodies of law is best considered in the context of the levels of war: strategic, operational and tactical. The law governing the recourse to war is not superior to, nor does it trump humanitarian law.  The State self-defence principles do not apply directly to the operational and tactical direction provided to military commanders.  Issues central to the conduct of hostilities: what constitutes a lawful military objective, how collateral effects from an attack are assessed, or the lawfulness of weapons are determined by international humanitarian law. Where the two bodies of law interact is at the strategic level with the nature and scope of the justifiable defensive response determining the range of military action undertaken by the State. In this context self-defence principles may restrict what valid military objectives are struck, the number of attacks carried out, and their location.  The self-defence principle of proportionality may also influence the boundaries of an acceptable overall level of collateral civilian casualties. 

There is also a requirement to consider the interface and overlap of international human rights and humanitarian law. This has become one of the most significant, disputed and enduring legal issues arising in the post 9/11 period. There has, in many respects, been a strategic level battle for “control” waged by proponents of the two governing legal frameworks. Unfortunately, this battle between theorists has largely been divorced from the situation facing security forces on the ground. Masked behind exclusionary arguments as to which body of law applies is the reality that human rights norms have always been an integral part of humanitarian law. In addition, military forces have long had to apply a law enforcement approach particularly when confronting non-State actors fighting amongst the people (e.g. occupation, counterinsurgency). In this respect military commanders and other State security personnel face daily dilemmas regarding the use of force that can fall under either, or both legal regimes.

Unfortunately, more time and effort has been spent on assessing the differences between these bodies of law than considering their similarities and intimate history. Historically, these legal frameworks have a shared grounding in religious humanism and morality.  Since World War II the understanding of the relationship between human rights and humanitarian law has been affected by periods of neglect, forced integration, divergence and finally growing reconciliation.  As can be seen from the treaty law alone international humanitarian law (e.g. the Fourth Geneva Convention, Common Article 3, Additional Protocol I, Article 75 and Additional Protocol II, Article 4) incorporates substantial human rights law provisions. There has also been an acceptance by States, courts and academics of the customary nature of human rights law. Whether by operation of customary law, or because human rights norms are incorporated into humanitarian law, the result is they apply to contemporary operations even where States deny the extra-territorial application of treaty law, or may not be parties to the human rights treaties. 

The renewed interest in human rights norms is directly linked to State involvement in counterinsurgency, counterterrorism and countering criminal activity even in the midst of armed conflict. This reality is perhaps best represented in the 2015 United States Army Operational Law Handbook, which has a stand-alone chapter on human rights. Further, as is reflected in its 2014 Department of Defense Detainee Program directive (para. 3a.) the United States has substantively moved toward the application of human rights norms as part of humanitarian law in respect of detainees regardless of how a conflict is characterized. The operating environment is simply too complex to keep these bodies of law trapped within their “silos”.  However, acknowledgement of the simultaneous and complementary application of both human rights and humanitarian law is just the beginning of the discussion. In assessing which body of law is applicable it is necessary to consider the limits of each normative regime.  For example, as was highlighted in the 2006 Israeli Targeted Killing Case (para. 40), the applicability of a human rights based capture approach is itself limited by the ability of the security forces to physically control the area in which the operation will take place, and assessments of the risk posed to those forces and uninvolved civilians. Further, the group nature of the IED threat highlights the necessity of frequently privileging a conduct of hostilities based approach over a law enforcement one.

The existence of the overlap between human rights and humanitarian law was acknowledged in the International Court of Justice Wall Case (para. 106) when it indicated there are situations that “may be matters of both these branches of international law.”  However, what has not occurred is an in depth consideration of what this means in practice. As States confront organized armed groups hiding amongst civilians they are placed in the position of considering not only the overlap between these bodies of law, but also their convergence in application and tactical implementation. For example, the military advantage of not alienating the local population can lead to a narrower acceptable “zone of proportionality” regarding the collateral effects resulting from attacks. Lower level threats, the development of specialized police forces, as well as an increasing acknowledgment that human rights law authorizes the use of deadly force (e.g. when confronting hostage takers, suicide bombers) means that body of law can offer an effective, but overall less violent means for dealing with many security threats. As a result, States can and do make a policy choice to apply the more restrictive law enforcement paradigm either on its own, or in conjunction with a conduct of hostilities approach.  This is reflected in the post 9/11 migration of operations from “kill or capture” to “capture or kill” missions, and finally to ones seeking the arrest or killing of insurgents and terrorists. Whatever the reasons for the fight amongst some lawyers about whether humanitarian or human rights law should prevail there is increasing reliance by States on their simultaneous application.  That acceptance is often directly linked to the “police primacy” requirements of counterinsurgency and counterterrorism doctrine.

With the application of humanitarian law being dependent upon the existence of an armed conflict one challenge confronting international lawyers is categorizing violence with non-State actors.  That fight can occur in the context of inter-State warfare, its non-international counterpart, or as part of law enforcement operations. It has been argued international armed conflicts can be interpreted to be occurring when non-State actors are controlled, or harboured and supported by a State; because of a non-consensual crossing of State borders to attack terrorists; through the application the Additional Protocol I, Article 1(4) “wars of national liberation” provision; or because of the now dated “recognition of belligerency” theory. The Israeli Targeted Killing Case refers to “conflicts of an international character”, and Yoram Dinstein to “extra-territorial law enforcement”. There are also post 9/11 “transnational armed conflicts” and the United States, Hamdan vs. Rumsfeld, decision indicating that armed conflict between States and non-State actors are non-international ones even if they transcend borders.  This is in addition to traditional conflicts with organized armed groups operating solely within States, and those that “spill over” to adjacent States being viewed as non-international conflicts. Further, international and non-international armed conflicts may be seen as occurring simultaneously in the same geographic space. The lack of consensus, the novelty of a number of these theories, their complexity, and the opportunity for terminological confusion is not helpful.  It should come as no surprise that practitioners increasingly simply ask the question whether an “armed conflict” is in existence, rather than engage in this categorization debate.

Adding to the legal debate is a further disagreement regarding the threshold for non-international armed conflict.  There is a general acceptance of the Tadić criteria of intensity of violence (protracted violence) and group organization. However, there is also growing recognition that reliance on the protracted nature of the violence, or the exclusive use of the Tadić criteria cannot adequately address all contemporary threats. There is a danger that setting the threshold for non-international armed conflict too high not only wrongly categorizes the violence, but also asks human rights based law enforcement to perform a role it cannot carry out without significantly altering its governing principles. Instead, there is an increasing reliance on the Additional Protocol II Article 1(2) threshold criteria of violence having to exceed “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” constituting an armed conflict, or a “totality of the circumstances” approach that considers a broader range of factors.  In this respect consideration of tactics and weapons used by the organized armed group, the type of State forces required to defeat the armed group, and the purpose for which the violence is occurring (i.e. a political or conversely an economic goal) more realistically addresses current threats. This is especially the case when they involve what might be viewed as “one off” attacks, such as those experienced in Mumbai (2008), Benghazi (2012), the Westgate Mall in Kenya (2013), Peshawar (2014), or Paris (2015).

Consideration of the multiple bodies of law applicable to contemporary operations is also reflected in largely unresolved debates about “direct action” counterterrorist missions, and defensive action to defend nationals.  Counterterrorist action largely takes the form of Special Forces missions or the use of airpower, with drone strikes attracting the most controversy.  The suggested analytical frameworks can be referred to as a restricted “Law Enforcement” theory, the permissive “Conduct of Hostilities” approach, and the “Self-Defense” option.  While the law enforcement framework may be seen as too restrictive, the other two options are often viewed as being overly destructive, and ones that are too easy to apply.  The approach chosen by the Obama administration has been to temper a conduct of hostilities approach with human rights like restrictions (e.g. consider capture before killing, restrictive “certainty” thresholds for application). While an “unable or unwilling” justification for such cross border attacks continues to attract criticism it is also clear a number of States, including European ones, have accepted the need to act in Syria on the basis that the territorial government does not exercise adequate control over the areas from which the terrorist threat is generated.

Similarly, States have long taken action in other countries to protect their nationals. While controversial this is an activity the international community has consistently accepted, or at least tolerated, particularly in the ungoverned spaces of the world. It has been variously justified as law enforcement, forceful countermeasures, self-defense in response to an armed attack, proportionate defensive measures, noncombatant evacuation operations, or simply the defense of nationals. Transnational hostage rescues can occur across the spectrum of violence including inter-State warfare (e.g. Entebbe, 1976), armed conflict with non-State actors (Sierra Leone, 2000), and human rights based law enforcement against criminal gangs (e.g. Somalia, 2012).  These operations have demonstrated a growing convergence between armed conflict and law enforcement approaches. They also highlight the ability of certain States to perform cross-border law enforcement based operations. 

One issue that receives little attention is how human rights law relates to the State self-defence legal framework governing many international operations.  While they share common Just War roots, principles such as necessity, imminence, proportionality and last resort are traditionally interpreted in a more restrictive fashion under human rights law. In other words, an interpretation that reflects the exercise of personal self-defense under domestic criminal law. This means that transnational law enforcement action should fit comfortably within a broader overarching national self-defence framework. However, a particular challenge in assessing how force is controlled at the tactical level is the dominant position that the right to act in self-defense in its recourse to war form has attained in the international law dialogue about the use of force. How broadly or narrowly that right is assessed can have a significant impact on how human rights based the law enforcement authority to use force is interpreted to apply. One challenge is that law enforcement is not solely limited to acting in individual self-defence, meaning greater authority to use force for mission accomplishment (i.e. enforce the law) must be accommodated within the overarching legal framework. Indeed, depending on the operation, State self-defence principles must accommodate both humanitarian law and human rights law based authority to use force.

Challenges have arisen in the context of interpreting self-defence Rules of Engagement (ROE), UN peacekeeping and the US Standing ROE (SROE).  For example, ROE doctrine often struggles to provide a homogenous interpretation of self-defence for national, unit and more individualized uses of force. For peacekeeping an exceptionally narrow interpretation of governing self-defence principles in the 1990s proved inadequate to address threats faced during increasingly complex UN missions. This led to the development of “robust peacekeeping”, which provides authority to use all necessary means to meet various mandate objectives including the maintenance of law and order. Finally, there is a danger in an SROE context that expansive State self-defence based interpretations of imminence will be incorporated into rules intended to be applied in a traditionally more restricted law enforcement context.

There is a narrowing operational and normative gap between the conduct of hostilities and law enforcement paradigms as military forces are tasked with policing duties, or the police are required to conduct operations to counter IEDs, suicide bombers and hostage takers. With security forces frequently applying law enforcement based tactics, either as a matter of law or policy, there needs to be consideration of the limits of that body of law. Those limits are practical in nature, found in an overreach in application by courts, and caused by limitations of interpretation.  The practical limits are evident in the Northern Ireland “shoot to kill” controversy, which raised questions regarding the point at which law enforcement may no longer be an effective, or appropriate framework to deal with armed conflict related violence. That conflict is often relied on to suggest contemporary terrorism is fundamentally a law enforcement matter. However, success in Northern Ireland was dependent upon a number of factors such as good governance, an established and responsive justice system, a capable functioning police force, an ability to exercise control in an area of operations, and an environment where cultural similarities facilitated rather than hindered operations. Those factors are not easily replicated in the failed States or ungoverned spaces where most contemporary operations take place. Further, the employment of police forces in a conflict role can lead to a militarization of the police.  The development and use of police for “military” missions can undercut counterinsurgency and counterterrorism efforts leading to an increase in insecurity for the civilian population.

Despite the European Court of Human Rights recognition of the application of humanitarian law in the Hassan Case in respect of an international armed conflict it remains unclear if that court will, like its Inter-American counterpart, apply that body of law to interpret human rights law during non-international armed conflict. There is also the question whether the European court will continue to apply human rights based principles when assess aerial bombing (e.g. Kerimova Case), which is clearly hostilities related. Further, by indicating humanitarian law will be applied “as far as possible” (Hassan Case, para 104) in interpreting the application of human rights treaty provisions during armed conflict, the court seems to suggest an overarching application for human rights law. This is a role that body of law is neither designed, nor intended to have. Interpretive limitations placed on the applicability of human rights law are evident in the German Constitutional Court 2006 handling of the shoot down of hijacked aircraft.  While important principles such as human dignity were emphasized in striking down legislation permitting the military to counter such attacks by terrorist groups the decision did not provide a practical solution to a real-world threat.  Further the Court avoided making the very value judgments that must be made by military personnel on a regular basis thereby providing support for an argument doubting that human rights law can adequately regulate these threats during hostilities.  It is also important that a human rights based approach and its terminology not be used to mask when force is used as part of the conduct of hostilities.  While the 2013 United States drone policy applies human rights principles it primarily remains a humanitarian law based endeavour.

Facing the unique and dangerous security threats of the 21st Century requires an approach based not on a “hybrid” model, but rather one that holistically encompasses law enforcement as well as conventional, and irregular armed conflict.  It is this “holistic” approach that underpins the concept of “operational law”.  Contemporary threats from non-State actors will require a re-assessment as to when armed conflict with non-State actors commences.  This is particularly evident in respect of “one off” attacks where decisions as to what legal framework to apply (i.e. law enforcement or conduct of hostilities) must be made as an attack unfolds. Reliance the criteria of protracted armed violence does not reflect the nature of many security challenges facing States, or the type of response required to defeat it. Despite 15 years of comprehensive military action, it is law enforcement that has become a defining feature of many security operations.  The challenge is determining when such a response is required by law, or is the preferred State response for meeting the goal of maintaining order. 

In many cases the human rights based paradigm must be applied as a matter of law (e.g. dealing with criminal gangs, occupation, or addressing violence by civilians not taking a direct part in hostilities). However, it is also frequently adopted by States as a matter of policy, particularly within their own territory.  Indeed, it is usually the default approach. This policy approach is frequently extended to external military operations such as counterinsurgency where the law enforcement model provides a less violent, but often very effective method for dealing with the security threat. It is not evident beyond a formalist limitation attached to national borders why States should not be required, consistent with their role as a “proper authority”, to demonstrate a special trust toward uninvolved civilians regardless of nationality during cross-border deployments against non-State actors.  In what is often a battle for legitimacy a key indicator of success against non-State actors, and ultimately indicative of a return to normalcy, is the ability of a State to manage that threat with a law enforcement response.  The result is that law enforcement should be privileged over the conduct of hostilities where it can effectively address the threat.

It will be an exceptional situation where some or all of the bodies of law impacting the conduct of counterinsurgency and counterterrorism operations do not have to be applied simultaneously. Hence a holistic approach, which includes the law enforcement option, provides States and their security personnel a full range of potential responses. It also requires that the practical effect of theoretical options be considered in terms of their viability. This will enable States to counter the threat across the full spectrum of violence, and allow security officials to make operational choices uniquely tailored to the nature of that threat. To be able to do so State legal advisors must be educated and trained not only in international humanitarian law, but also to a far greater extent in human rights law (international and domestic), the law governing the recourse to war, and international criminal law. Despite the need to re-calibrate after a decade and a half of counterinsurgency/counterterrorism operations neither States, nor their legal advisors can afford to return to a traditionally exclusive focus on inter-State conflict. At the same time, the academic community needs to work to reduce the overall lack of certainty compounded by numerous often diverse theories regarding foundational legal issues.  Importantly, these theories must be capable of being applied in an effective manner, lead to success, and prioritize the protection of the civilian population. An emphasis needs to be placed on determining their practical effect. It is crucial that the boundaries of the various applicable bodies of law are not allowed to be barriers to maintaining law and order, and protecting civilians regardless of where they might live.

Brigadier-General (Ret’d) Ken Watkin, OMM, CD, QC served 33 years in the Canadian Forces, four years as the Judge Advocate General, the senior military legal advisor and superintendent of the military justice system. Since his retirement in 2010, Ken served as a Foreign Observer to the Israeli Independent Commission investigating the 31 May 2010 Gaza Blockade incident, and from May 2011 until June 2012 as the Charles H. Stockton Professor of International Law at the United States Naval War College. Ken has also served as a guest blogger for our Oxford Series. 

 

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Ken Watkin

Brigadier-General (Ret’d) Ken Watkin, OMM, CD, QC served 33 years in the Canadian Forces, four years as the Judge Advocate General, the senior military legal advisor and superintendent of the military justice system. Since his retirement in 2010, Ken served as a Foreign Observer to the Israeli Independent Commission investigating the 31 May 2010 Gaza Blockade incident, and from May 2011 until June 2012 as the Charles H. Stockton Professor of International Law at the United States Naval War College. He is the author of Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict(Oxford University Press, 2016).