The Rule of Law in Crisis and Conflict Grey Zones

Regulating the Use of Force in a Global Information Environment

Michael John-Hopkins

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351996730
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book responds to ongoing calls for clarification and consensus regarding the meaning, scope and interplay of humanitarian law and human rights law in the 'grey zones' of unconventional operational environments such as counterterrorism and counterinsurgency operations. It contributes to the debate in this area by developing objective criteria for determining where the shift from the legal framework of law enforcement to that of non-international armed conflict occurs in relation to targeting law and weaponry law; by developing improved objective criteria for determining what constitutes direct participation in hostilities and de facto membership in an organised armed group; by taking stock of how existing targeting and weaponry rules are being applied to unconventional conflicts within civilian populated areas by key state players as well as by international and regional human rights mechanisms; by arguing for the progressive realisation of targeting and weaponry law so that they are more fitting for operational environments that are increasingly urbanised and civilianised; by seeking to understand how global networked connectivity may affect our understanding of the operational theatre of war and the geographical reach of the legal framework of non-international armed conflict.

1 The contemporary theatre of operations

The ‘Medusa effect’: the dynamics, context and strategy of contemporary responses to crises and conflicts¹

Chapter 1 carries out a survey of the material conditions of contemporary conflicts in order to identify key trends that are pertinent to normative analysis and reconceptualisation. It examines the dynamics of the largely asymmetric power relations of contemporary conflicts which have led to conflicts becoming increasingly unconventional and irregular in nature and urban in context. The unconventional tactics employed mean that conflicts and confrontations tend to be continuous in duration and mixed or hybrid in character.² This means that within a single operational theatre, there may be different types of armed confrontation reaching the threshold of an armed conflict of an international and/or non-international character. Further complicating this is violence that may be associated with terrorism, uprisings, organised crime, public disorder or petty crime that does not reach the threshold of an armed conflict or which is connected with surrounding hostilities.

Broadly speaking, the operational environment can thus constitute a regulatory grey area, given that it may require a mix of combat, law enforcement and humanitarian activities. In this sense, there is a full spectrum or continuum of violence ranging from petty crime to armed hostilities between states or between states and organized armed groups. An appraisal of violence within the contemporary operational environment as protracted, civilianised, full spectrum, transnational and globally connected in turn requires a reappraisal of a conventional classification scheme that is merely structured to distinguish between war and peace. In this way, what is needed from both a military and legal point of view is an enhanced schematic framework that can recognise that in any one civilianised operational theatre, there may be a range of activities, confrontations and conflicts that call for a range of responses, and thus different regulatory and supervisory frameworks.

Furthermore, any contemporary classification scheme ought to be sensitive to the information environment, which is defined as ‘the aggregate of individuals, organisations, and systems that collect, process, disseminate, or act on information’,³ as well as a group’s information-related capabilities (IRCs), which are defined as ‘tools, techniques, or activities using data, information, or knowledge to create effects and operationally desirable conditions within the informational, physical and cognitive dimensions of the information environment’.⁴ Counterinsurgency doctrine defines the information dimension as ‘the place where information is collected, processed, stored, disseminated, displayed, and protected’; the physical dimension as comprising ‘systems, human beings (including decision makers, leaders, and military forces), and supporting infrastructure that enable individuals and organisations to create effects, conduct operations across air, land, maritime, space and cyberspace domains across multiple domains’; and the cognitive dimension as comprising ‘the mind of the decision maker or specific audience and is the dimension where people think, perceive, visualize, and decide’.⁵

The importance of this is that legal and military doctrine must keep up with the means and ends with which IRCs are increasingly being used to produce effects within the physical domain in particular. For example, advanced wired and wireless information technology is used to foster global networked connectivity in order to gain strategic, operational and tactical advantages and effects, namely, influencing international, national, regional and local audiences in near real time, anonymously and/or securely. Global networked connectivity brings countries, groups and people around the world closer together. It has a stimulating effect on crises and conflicts in that it provides for the freer flow of weaponry, information and finances for groups and individuals, and it allows them to have wider strategic and operational effects than in the past.⁶

Understanding the nature, scope, characteristics and effects of individuals, organisations and systems that collect, process, disseminate or act on information is essential in order to assess whether or not there is a state of armed internal conflict in existence. In other words, it is now essential to gain a clear understanding of a transnational information environment so as to identify adaptive and unconventional methods of command and control and assess whether a group’s organisational, fighting and logistical abilities mean that it has the ability for protracted military operations in such a way that exceeds the capacity of law enforcement agencies to respond.⁷ Furthermore, in an unconventional environment it is a major challenge to establish a nexus between an individual and any surrounding hostilities, either on the basis of their direct participation in hostilities or their membership in an organised armed group, in order to categorise them as a lethal threat. Where an individual does not constitute a direct and immediate lethal threat, recourse will have to be made to the information and cognitive dimensions in order to ascertain their intentions and motivations, as, more often than not, this will be the decisive issue when it comes to targeting on the basis of status and ensuring that it is done legitimately and lawfully.

A corollary of sounder legal ordering is enhanced substantive and procedural protection. Therefore, a clearer schematic framework is needed to regulate the use of force in ‘grey area’ operational theatres, as such situations pose a major threat to civilians, particularly when conventional military means and methods are employed within a civilianised and urbanised battle space. Military doctrine and sociopolitical analysis lay the foundations for a more nuanced classification scheme that promotes descriptively accurate and modulated status determination. This approach can ensure that IHL is kept at a relatively high threshold of applicability and is not normalised in terms of being brought down into situations of social crisis or public emergency too readily, that is, outside situations of armed conflict. It would also help governments to clarify and justify, for example, why the legal paradigm of humanitarian law in armed conflict, rather than the legal paradigm of human rights in law enforcement, applies to a use of lethal force abroad. In its 2016 Report, the UK Parliamentary Joint Committee on Human Rights stated that the legal line between counterterrorism law enforcement and the waging of war by military means risks becoming blurred and stated that urgent clarification is needed, particularly about how the international legal frameworks apply to the use of lethal force abroad in counterterrorism operations outside armed conflict. It went on to state that it is imperative that the UK government acknowledge that where it takes a life when there is no armed conflict, the higher standards laid down in the human rights law have to be met, and that it is only where the taking of life is in an armed conflict that the lower standards of the law of war apply. This is to ensure that operations resulting in the use of lethal force outside of armed conflict are planned and controlled in a way that minimises the risk of loss of life.⁸

Chapter 1 examines how the material conditions of contemporary confrontations and conflicts have informed and affected contemporary military doctrine and practice. In turn, Chapter 1 also lays the foundations for suggesting that contemporary military doctrine and sociopolitical analysis pave the way for progressive normative reconceptualisation and restructuring in a number of respects: first, in terms of the sequencing of law enforcement and combat activities along a continuum of force and, as a corollary of this, the sequencing of the legal paradigm of law enforcement and the legal paradigm of hostilities; second, in terms of developing clearer objective criteria for individual and contextual status determination; and third, in terms of the progressive realisation and sequencing of targeting and weaponry norms so as to correlate and guide the force continuum with the violence continuum within a full-spectrum operational environment. Better objective criteria for sequencing are used to assist with marking the point at which the law enforcement paradigm is no longer practicable as the violence has reached the threshold of an armed conflict. In this regard, sequencing means shifting from the law enforcement framework to the framework of hostilities in relation to targeting and weaponry law. It is suggested that unless we set out and consistently apply clear objective criteria that set the threshold for the applicability of Hague NIAC rules at a high level, then there is the risk that within the operational and normative uncertainties of contemporary operational environments, IHL may be ‘coming down’ from its high threshold of applicability and IHRL may be ‘coming up’. This is a major protection issue, because, if the threshold of NIAC rules is not kept at an appropriately high level, then there is increased scope for the unwarranted legitimisation of targeted killings and use of high-intensity means and methods of conventional military force across a range of low-intensity hostilities. In this regard, the Parliamentary Joint Committee for Human Rights urged the UK government to clarify the legal basis of its policy of targeted killings, for example, in Syria and Libya. This is important in an international context where states such as the United Kingdom, Russia, United States and Israel appear to rely increasingly on targeted killing as a method of law enforcement, war and self-defence, and so the parameters and bases of justifiable targeted killings need to be clarified.

Former Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, defined targeted killing as

the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator.⁹

In other words, unlike combatants or soldiers who are targeted on the basis of their identifiable status, individuals are named or identified in advance and killed as a first port of call, that is, without first attempting to arrest and prosecute them on criminal charges. Targeted killings may be executed by remotely piloted ai...