Large-Scale Combat Operations Symposium – Counterterrorism Thinking and “Large-Scale Combat Operations”

Editor’s note: The following post highlights a subject addressed during an expert workshop that the Lieber Institute co-convened alongside Harvard Law School’s Program on International Law and Armed Conflict and the International Committee of the Red Cross, focusing on some of the legal issues arising in large-scale combat operations. For a general introduction to this symposium, see Winston Williams and Jennifer Maddocks’ introductory post.

I have been involved in legal debates on the “Global War on Terror” for over two decades. (I am going to dispense with the scare quotes after this, but you can imagine they remain throughout.) During that period, at least in North Atlantic and Western European States and the places where their militaries project force, counterterrorism (CT) has largely dominated post-9/11 policy, debate, and scholarship related to armed conflict. At the recent Trilateral Workshop on Legal Roles and Responsibilities Concerning Large-Scale Combat Operations, government and military colleagues made it clear that CT was no longer the United States’ primary national-security priority. Instead, “Great-Power Competition,” including potentially between certain permanent members of the UN Security Council, is what drives current military planning and legal thinking.

In short, counterterrorism is out. China and Russia — and possibly massive international armed conflict against them — are in.

This shift is not entirely surprising, as it tracks developments in U.S. (and allied) national security policy. But after decades of discussions on international legal issues posed by armed conflict against non-State actors and the threat of global jihadism, it was striking to hear that these issues were supposedly in the rearview mirror.

The workshop felt in a sense like the early years after 9/11: this was a new kind of crisis, and those without access to classified information did not understand the severity of the threat. During the event, there was a sentiment that international lawyers must adapt to the new reality or risk obsolescence.

It is tempting to see CT-thinking as old news. Yet I wonder whether we have really turned the page. Even as we discussed a different adversary and a different kind of application of international humanitarian law/law of armed conflict (IHL/LOAC), it felt like CT remained with us.

Most obviously, many legal innovations from the Global War on Terror continue to entail life-and-death consequences in such places as Somalia, Afghanistan, and Syria. These innovations include interpretations of the law governing the threat or use of force between States, such as the “unable and unwilling” framework. They also include interpretations of IHL/LOAC, such as the United States’ targeting of “war-sustaining objects” and members of organized armed groups outside traditionally circumscribed battlefields. Debates in Washington, D.C. may have largely “moved on” to “Great-Power Conflicts.” But before we plunge into a new set of conundrums and debates, we should take a moment to reflect on how much the CT perspective has distorted the way that we think about the role of law in relation to war.

How might CT-thinking continue to shape how we approach potentially extensive inter-State conflict (or “large-scale combat operations,” as we called it in the workshop)? In this post, I want to suggest three areas, among no doubt many others, that merit our focused attention and action.

Legal Positions of “Outlaws”

An element of the international legal discourse surrounding the Global War on Terror was the idea that engaging with the legal views of the “enemy” was unacceptable. Legal scholars tended not to develop expertise in the positions of key jihadi groups, despite the fact that some groups produced extensive legal argumentation. It was as if certain adversaries fell outside the arena of legitimate discourse. Indeed, for the few of us who did seek to discuss the legal views of non-State groups (particularly if we were perceived as Muslim), it became second nature to begin presentations by saying, “Of course, I am in no way arguing that they are correct or justifying terrorism.” Efforts to understand how jihadi international legal thinking worked or the political claims of those groups were almost exclusively limited to other disciplines.

Of course, one could argue on doctrinal grounds that non-State actors cannot make international law. Moreover, jihadi groups often assert that they reject international law altogether.

But the same attitude is influencing how we are discussing the international legal positions of States. It is one thing to dismiss the legal views of ISIS. It is significantly different to assume from the outset that all the legal positions of Russia or China are made in bad faith.

A disposition toward terrorism developed over the past 20 years, according to which it is both intellectually impossible and morally problematic to even discuss the justifications presented by designated terrorists for their actions. During that period, many Western governments — including their legal advisers — did not invest in developing a meaningful understanding of the political claims and demands of the adversary from that adversary’s legal perspective.

In my engagements with several of those governments, I have come to worry that that disposition is now being applied, intentionally or not, with respect to States like Russia and China. I am concerned about transposing the counterterrorism mindset to State adversaries.

Blurring the Jus ad Bellum / Jus in Bello Line

CT thinking may also influence our understanding of the relations between the jus ad bellum and IHL/LOAC. In the past year, a number of continental European diplomats have asked me to brief on the distinction between these two bodies of law. In briefings, I reiterated the notion that international law prohibiting the use of force in international relations is distinct from and meant to be complementary to the international law regulating armed conflict. I explained the foundational basics: the legality or illegality of the use of force does not alter the application of IHL to all parties to an armed conflict. But it became clear that the diplomats’ fundamental question was not doctrinal. Many of these officials were under enormous political pressure to express the view that it was impossible for Russia to comply with international law while undertaking a war of aggression. That is, the diplomats were being pressured to say that IHL/LOAC could not apply equally to the aggressor and the victim.

From a Ukrainian perspective, of course, this is an understandable view. Since its (re)invasion, Russia has subjected Ukrainians to bombardment, occupation, torture, abduction of children, and sexual violence. Thousands of Ukrainian civilians have lost their lives. If the city hall building in your town was destroyed by an invading force, killing civilians and leaving a crater in your public square, the idea that there is a group of lawyers somewhere discussing whether the building was a military objective and whether the civilians killed fell within the principle of proportionality is repugnant. Indeed, in the eyes of victims of unlawful uses of force, the application of IHL/LOAC — particularly the equal application of that body of law to all parties to the armed conflict — can feel incomprehensibly offensive. (We might here wonder how Iraqis felt about the U.S. and UK insisting that they were scrupulously adhering to IHL/LOAC after the 2003 (re)invasion.)

A blurring of the legal justification for the use of force and the legal obligations applicable in armed conflict is another possible CT carryover (though it has of course occurred in other contexts as well). During the Global War on Terror, the U.S. configured legal frameworks that blended certain aspects of the jus ad bellum and the jus in bello. In the counterterrorism era, many Western international lawyers made the following trade: by conceding to the United States’ flawed justification eroding the prohibition on the use of force and defaulting to an armed-conflict framing, those lawyers could help craft policy standards with government and military actors that were far more restrictive than the foundational rules of IHL/LOAC. This concession was apparently made with two assumptions in mind — both that the weakening of the prohibition of the use of force would not set a precedent for other States and that the new policy standards would become increasingly accepted as the new baseline rules for the conduct of hostilities.

My sense is that neither assumption has been borne out.

IHL Experts and Public Expectations of Lawful Harm

In the Trilateral Workshop, I heard an argument that has surfaced repeatedly in the past two years: the notion that a responsibility of IHL/LOAC experts in the coming years will be to help sensitize Western publics to the massive destruction, death, and harm that are likely to be perpetrated by their States in the large-scale conflicts to come. In U.S. and UK national-security circles, a concern today is that the Global War on Terror caused Western publics to internalize expectations that the armed forces will meet standards that IHL/LOAC does not demand: think of the images of drones hovering over targets for days at a time or “kill lists” that were submitted to multiple lawyers before being approved.

From what was said at the workshop, war planning is already drastically shifting from “targeted killing” strikes against individuals to large-scale combat against sophisticated foes in densely populated cities. These latter kinds of operations could result in enormous bloodshed that does not necessarily constitute a violation of IHL/LOAC. I had the sense that, with these potential battles in mind, there was a view in the room that it would be irresponsible for IHL/LOAC specialists not to inform the public about what exactly the law does and does not require. As a doctrinal matter, this is right. As a political one, and as an indication of just how far along the planning is for the role of law and narratives around law in the conflicts being contemplated today, it is chilling.

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Naz Khatoon Modirzadeh is a Professor of Practice at Harvard Law School and Founding Director of the HLS Program on International Law and Armed Conflict.

Photo credit: NATO Special Operations Component Command-Afghanistan, Martha Schaeffer