Volume 1 Chapter Abstracts
PART ONE: Complexity in Legal Regimes
Chapter 1. Fragmented Wars: Multi-Territorial Military Operations against Armed Groups
The use of force against armed groups located in other States is not new, but began receiving heightened attention as a result of U.S. operations in Afghanistan following the September 11, 2001 attacks. The high-profile nature of these events, the resoluteness with which the United States asserted its right to self-defense against an armed group and the international support that it received, all led to increased attention to the surrounding legal matters. Much of the debate centered upon the basic question of whether a State has a right to self-defense in response to attacks perpetrated by a non-State actor located in the territory of another State, absent attribution of the attack to the other State. Other important issues included the classification of hostilities between the State and such a group, and rules governing the conduct of the parties. This chapter sets out to draw together the threads of these debates from the last fifteen years, to analyze new questions that have emerged, examine how they impact upon each other, and suggest a way forward for overcoming legal challenges.
Chapter 2. Accounting for Complexity of the Law Applicable to Modern Armed Conflicts
It is verging on the trivial to observe that the law applying to modern armed conflicts is full of complexities – some old, many new. Such complexities are, after all, the bread and butter of legal academics, who have produced mountains of books and articles on the various relevant topics. But the extent of these complexities can be overstated. While legal academics debate the finer points of the interaction between international humanitarian law (IHL) and international human rights law (IHRL), in the vast majority of today’s armed conflicts the law is reasonably practical, clear and fit for purpose. It might not be complied with, but that is not because of its supposed complexity or lack of clarity. If for example, the parties to contemporary armed conflicts with the highest cost in human lives and property (e.g., in Syria or Yemen) observed only the bare fundamentals of the principle of distinction, the world would be spared much suffering. Their noncompliance has little to do with the law’s complexity. But complexity is nonetheless a major feature of a particular subset of modern armed conflicts, especially those involving foreign intervention by Western powers. The purpose of this paper is not to provide arguments or solutions concerning the extant controversies, but to clarify our understanding of how complexity works, where it comes from and how it is managed. To do so, this chapter will first develop two themes: the multiple causes of complexity and the decentralized system for managing this complexity. These themes, which lead to a gradual process of mainstreaming and normalization that is both legal and political, will then be explored in more detail in the context of the law on the use of force or jus ad bellum, IHL, and IHRL.
Chapter 3. The Use of Force in Armed Conflicts: Conduct of Hostilities, Law Enforcement, and Self-Defense
In modern warfare, military forces are expected to use lethal or potentially lethal force in a variety of contexts ranging from combat operations against the adversary to maintaining law and order or responding to imminent threats to life or limb. In practice, it may not be easy to distinguish between these various situations, which may overlap, as for instance when fighters hide among rioting civilians or demonstrators. Situations of violence may also be very volatile and quickly evolve from mere civilian unrest to armed clashes. This factual or operational complexity is accompanied by a legal complexity. Different legal regimes and ‘paradigms’ govern the use of force. From an international law perspective, the use of force by armed forces and law-enforcement officials is governed by two different paradigms: the conduct of hostilities paradigm, derived from international humanitarian law (IHL) and the law enforcement paradigm, mainly derived from international human rights law (IHRL). Additionally, armed forces frequently refer to the concept of self-defense at various levels (State, unit, personal) as encompassed in numerous rules of engagement. The legal source(s) of this/these concept(s) and/or interplay with IHL and HRL remain however often unsettled and deserve being clarified. This chapter aims at addressing the legal complexities in identifying governing use of force rules through the analysis of various situations/scenarios that are typical of contemporary military operations.
Chapter 4. Personal Self-Defense and the Standing Rules of Engagement
The United States military Standing Rules of Engagement (SROE) restrict the use of force in armed conflict to one of two situations: self-defense or “mission specific” Rules of Engagement. The latter category refers to the use of force against individuals that are members of enemy armed forces or organized armed groups that have been “declared hostile.” This bifurcation of authority works well in an international armed conflict (IAC) where the enemy force is uniformed and easily distinguished. In these circumstances, the overwhelming number of engagements are against identified hostile forces. In many non-international armed conflicts (NIACs), however, combatants actively attempt to camouflage their status and U.S. forces find themselves engaging enemy forces under a self-defense framework. This creates problems. Consider, for example, a situation where three individuals of unknown affiliation launch an attack against a U.S. military convoy in Afghanistan. After a short engagement, the attackers get in a van and speed away from the attack site. The U.S. convoy is disabled, but an Unmanned Aerial Vehicle tracks the van as it retreats into the desert. Thirty minutes later an AH-64 Apache attack helicopter arrives on scene above the still-retreating van. Can the Apache attack the vehicle? The van is retreating and poses no threat, thus self-defense principles would not allow for the use of force, despite the fact that the occupants are clearly directly participating in hostilities. This chapter builds on existing scholarship by addressing three questions: Why is the SROE drafted in this manner? What is the basis in the law for the SROE’s approach to self-defense? What are the problems presented by this approach?
PART TWO: Complexity in Governance
Chapter 5. Conflict Management and the Political Economy of Recognition
Illicit non-State actors use a broad range of techniques and tactics in pursuit of their goals, including insurgent warfare, terrorism, kidnapping, propagandization, and cyber operations, to name a few. Financing for their activities run the gamut from black market operations such as drug smuggling or the looting of antiquities in war zones to attempts to participate in “white” or legal markets, and everything in between: grey scale economic relations. At times, these entities seize and control territory that they might treat as a hideaway, a gangster fiefdom, or a new country that they believe deserves acceptance into the international community. Regardless as to how they style themselves, the fact that these groups are not generally recognized as States (or as the governments of existing States) puts them at a disadvantage in any struggle against existing States. Part of understanding the strategies of these groups is to appreciate the options that are, and are not, available to them as they pursue their goals from a position of not being a State. This chapter will consider how the international law of recognition of States and governments affects conflicts between States and non-State actors. Recognition is a political decision that takes place within a legal framework and has direct effect on the ability of armed groups and other entities to access resources. In part, law attempts to classify actors and actions and, in so doing, define who or what is acting and the range of their legal action. The law of recognition is one of these methods of sifting out different types of actors.
Chapter 6. Hybrid Warfare, Law and the Fulda Gap
The law constitutes an integral and critical element of hybrid warfare. Law conditions how we conceive of and conduct war. By drawing a line between war and peace and between permissible and impermissible uses of force, the international legal framework governing warfare stabilizes mutual expectations among the warring parties as to their future behavior on the battlefield. Hybrid adversaries exploit this stabilizing function of the law in order to gain a military advantage over their opponents. They do so by failing to meet the relevant normative expectations, using a range of means including non-compliance with the applicable rules, instrumentalizing legal thresholds and by taking advantage of the structural weaknesses of the international legal order, whilst counting upon the continued adherence of their opponents to these expectations. The overall aim of hybrid adversaries is to create and maintain an asymmetrical legal environment that favors their own operations and disadvantages those of their opponents. This poses two principal challenges, one specific and one systemic in nature. Law is a domain of warfare. Nations facing hybrid threats should therefore prepare to contest this domain and strengthen their national and collective means to do so. At the same time, the instrumentalization of law poses profound challenges to the post-Second World War international legal order. Nations committed to that order cannot afford to respond to hybrid threats by adopting the same means and methods as their hybrid adversaries without contributing to its decay.
Chapter 7. Hybrid Conflict and Prisoners of War: The Case of Ukraine
The conflicts in eastern Ukraine and Crimea are not the first time sovereign States have clashed under murky and confused circumstances. The law governing international armed conflict, i.e., the law regulating war between States, has long recognized this fact; the threshold to trigger it is a very low one and it applies “even if the state of war is not recognized by one of them.” Nevertheless, some perceive Ukraine as a case of “hybrid war” for which the old rules are ill-fitting at best, and no longer capable of regulation or restraint. What happens to international humanitarian law (IHL) when, according to Russian General Valériy Gerasimov, the hybrid nature of recent conflicts produces a “tendency to erase differences between the states of war and peace?” This chapter argues that there are in fact two distinct armed conflicts ongoing in Eastern Ukraine. First, there is an ongoing but unacknowledged international armed conflict (IAC) in eastern Ukraine between Ukraine and Russia. Second, there is also fighting sufficiently intense and involving sufficiently organized non-State actors to be considered a non-international armed conflict (NIAC) between the Ukrainian State and rebel forces in Donetsk and Luhansk. Adding another layer of complexity, at certain times and places, it may be that this NIAC may have transformed into an IAC because of Russia’s overall control of these non-State actors.
Chapter 8. Legitimacy: The Linchpin of Military Success in Complex Battlespaces
Thomas Ayres and Jeffrey Thurnher
Legitimacy is a critical factor in operations. States strive to maintain legitimacy of their operations for a variety of reasons including tactical and operational imperatives. The essence of legitimacy on the battlefield is conducting operations in a manner that enables the fighting force to gain and maintain moral and legal authority. Whenever fighting takes place on a cluttered or complex battlespace, legitimacy is brought to the forefront as the potential for civilian harm is often increased. The desire for legitimacy is perhaps the main reason States voluntarily cede sovereignty to comply with international law. Adherence to the law of armed conflict is a necessary and key component of legitimacy. States, as the primary developers and adherents of international law, created the current law of armed conflict construct and are responsible for ensuring its continued viability. States understand that legitimacy and compliance with the law help shape ultimate victory in complex battlespaces. States further recognize that the law of armed conflict only functions properly when there is a delicate balance between the fundamental principles of humanity and military necessity. In recent years, however, States have been subject to attempts from external entities to tilt this balance in favor of humanitarian considerations and to reshape what are considered legitimate actions on complex battlefields. Simultaneously, States have confronted non-State actors that intentionally seek to flout international law and use it to undermine States’ abilities to respond. This chapter examines the importance of legitimacy to States and the reasons States seek to garner it through their military operations.
PART THREE: Complexity in Technology
Chapter 9. The Principle of Proportionality in an Era of High Technology
This chapter explores the application of a key principle of the law of armed conflict – proportionality – in the context of new and emerging weapon systems and methods of warfare. The relentless pursuit of new military technologies by states continues to yield expanding lists of technology-related issues for lawyers to consider in applying the law of armed conflict in complex battlespaces on land, sea, air, space, and in cyberspace. Foremost among these issues is the challenge presented by the principle of proportionality, requiring military forces to refrain from causing excessive damage to civilians and civilian objects when attacking military objectives. New weapon systems in complex battlespaces continue to increasingly force lawyers and decision makers to revisit, re–evaluate and struggle in new contexts with the “equitable balance between humanitarian requirements and the sad necessities of war.” Some technological developments may, however, also present opportunities for the principle of proportionality to achieve greater relevance to the conduct of armed conflicts and even contribute to improved compliance by states. To illustrate these challenges and opportunities, this chapter examines the application of the principle of proportionality in modern armed conflicts with respect to several critical yet still evolving military technologies: unmanned aerial vehicles, autonomous weapon systems, cyber capabilities, and outer space technologies.
Chapter 10. Lethal Autonomous Weapons Systems – Is It the End of the World as We Know It… Or Will We Be Just Fine
Over the past decade, there has been a proliferation of remotely piloted aircraft or “drones” being used on the battlefield. Advances in technology are going to continue to drive changes in how future conflicts will be waged. Technological innovation, however, is not without its detractors as there are various groups calling for a moratorium or ban on the development and use of autonomous weapons systems. Some groups have called for a prohibition on the development, production, and use of fully autonomous weapons through an international legally binding instrument. While others view advances in the use of technology on the battlefield as a natural progression that will continue to make weapons systems more discriminate. The unanswered question is which point of view will be the right one? This chapter will approach this question by addressing the meaning of “autonomy” and “autonomous weapons systems.” In addition, this chapter look at the Department of Defense’s vision for the potential employment of autonomous systems, the legal principle applicable to these systems, and the weapons review process.
Chapter 11. New Technologies and the Interplay between Certainty and Reasonableness
Underlying ongoing and intensive efforts to understand how the law of armed conflict does, could and should apply to the use of new technologies is an equally comprehensive effort to understand precisely what these new weapons are and how they work. Many new technologies introduce unique questions for human understanding, often driven and exacerbated by the fact that the technology is out of sight or out of reach of human senses, making actual concrete understanding of how it works challenging and elusive. Effective legal analysis and guidance for the use of any weapon rests on an accurate understanding of how that weapon works. This uncertainty and quest for more determinative information about the nature of certain new technologies has the potential for unintended and possibly untoward effects on the very implementation and application of the law itself—in effect, it has the potential to change the law. As in many other legal regimes, critical components of legal analysis and interpretation in LOAC involve reasonableness: that is, whether the actions of a commander were reasonable in the circumstances prevailing at the time. In contrast, the need to understand how a new technology works and what it might do in a given situation, particularly with regard to autonomy, is not an inquiry resting on reasonableness, but rather on the desire for as much certainty as possible.
Chapter 12. Cyber National Security: Navigating Gray Zone Challenges In and Through Cyberspace
When the first host-to-host message was sent across the ARPANET in October 1969, few could have fully anticipated the degree to which the internet, and now the internet of things, would explode across the globe and revolutionize nearly every facet of public and private life. Nor could anyone have predicted the degree to which it would establish an entirely new realm—cyberspace—through which states could engage in traditional, and not-so-traditional, statecraft and conflict. However, it is now clear that states have fully embraced cyber operations as a means to pursue their national interests and gain low-cost asymmetric advantages over their adversaries. Cyberspace has become a new instrument of statecraft and presents novel and challenging questions about the applicability of existing legal orders. Adversaries are leveraging and exploiting the numerous technical, policy, and legal ambiguities surrounding cyberspace operations to conduct a range of intrusive and increasing aggressive activities. While some of these cyber operations have been conducted as part of on-going armed conflicts, the vast majority have taken place in the so-called “Gray Zone”—the far more uncertain space between war and peace. Also known as, gray-zone challenges or gray-zone conflicts, these activities are more accurately understood as actions that are coercive and aggressive in nature and rise above normal, everyday peacetime geo-political competition, yet remain below the threshold of war. This chapter will identify and consider some of the more challenging domestic and international legal issues raised by the conduct of cyber operations in the gray zone between peace and war.
PART FOUR: Complexity in the Urbanization of the Battlefield
Chapter 13. Be Careful What You Ask For: The Unintended Consequences of New Restrictions on Fires in Urban Areas
Aleppo, Syria—a city that will join the infamous likes of Nanking, Stalingrad, Manila, Berlin, Hue, Panama City, Mogadishu, Grozny, and Donetsk, as one of modern history’s worst urban warzones. Much of the destruction in this city is the result of indirect fires and air-delivered munitions. Indeed, this is the case in Aleppo, the now-infamous “barrel bomb” has become synonymous with indiscriminate Syrian government attacks against rebel-held areas of the city. In response to the humanitarian dangers associated with the use of such weapons in urban and built up areas, there is a growing trend among international humanitarian law advocates to severely restrict—or even ban outright—the use of fires, high explosive munitions, and associated weapon systems in built-up civilian population centers. These humanitarian initiatives reveal that for proponents of such restraint, the “problem” of high explosives in populated areas, whether delivered by indirect fire systems or air assets, is critical. The core premise of this chapter is that new restrictions on urban fires may actually exacerbate civilian risk, and that fires in support of urban operations are not only operationally essential, but may, when properly employed, actually reduce risk to civilians and civilian property. Accordingly, civilian risk mitigation efforts should continue to focus on enhancing commitment to and compliance with already existing attack precautions and LOAC targeting obligations.
Chapter 14. The Law & Policy of Human Shielding
Beth Van Schaack