Abstract
This article explores the effects of paradigm shifts, that is the transition from the law enforcement paradigm to the war fighting paradigm and vice versa, on the rules on the use of force for military operations. The concept and main elements of rules of engagement are explained, followed by an analysis of applicable law and its effect on the use of force in each of the two paradigms. Particular attention is focused on the divergent meanings of necessity and proportionality in the two paradigms. Finally, the effects of paradigm shifts on military operations and on the rules on the use of force are explained. The conclusion offers some guidance on the use of rules of engagement to support such paradigm transitions.
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Notes
See, inter multa alia, Von Clausewitz (1831).
While there is a difference between both the legal basis and the rules, to be discussed below, as issued for mission accomplishment and the rules (written or unwritten) regarding self-defence, even purely defensive use of force ultimately supports the operation in question in terms of, quite simply, serving to keep the military personnel in question alive and able to carry out the operation.
See, for example, Pouw (2013).
Targeting directives set forth the guidance and restrictions (or instructions) regarding targeting, including acceptable levels of collateral damage (usually more restrictive than applicable law), for the operation in question. Such directives may also contain specific instructions or restrictions on the use of specific weapon systems, such as indirect fire (including artillery) and air-to-ground weapon systems. For an example see NATO (2009).
Boddens Hosang (2017), pp. 337–341.
In the Netherlands, for example, an instruction card containing rules on self-defence is issued to personnel deployed in (minor) operations for which there are no full, formal ROE.
Roach (1983). Although Roach presents four circles (with ‘diplomacy’ as the fourth), ‘diplomacy’ and ‘policy’ are considered to be part of the same area or element.
Boddens Hosang (2017), pp. 38–43. Note that this observation is not necessarily a point of criticism, provided the restrictions are realistic, since the influence of political policy on military operations can equally be seen as a logical reflection of the observation made in the introduction regarding the intrinsically political nature of military operations.
In the Netherlands, this is emphasized in the explanatory memorandum (Nota van Toelichting) accompanying the introduction of Art. 38, para. 2, in the Military Criminal Code (Wetboek van Militair Strafrecht) which contains a justification for the use of force pursuant to orders or instructions (including ROE). Parliamentary document 32 487 no. 3.
As confirmed in, inter alia, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), ICJ, Merits, Judgment of 27 June 1986, paras. 176 and 194; and The Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons), ICJ, Advisory Opinion of 8 July 1996, para. 41.
In the Netherlands, for example, such support is covered by the Police Act of 2012 (Politiewet 2012) and the rules on the use of force for the military personnel in question are identical to those for the national police force.
Without going into too much detail, it should be noted that while international humanitarian law will generally be the lex specialis during armed conflicts, there are also many situations during an armed conflict where human rights law will be the lex specialis. One example would be the detention of members of armed groups who, after all, are not entitled to prisoner of war status and have no combatant privilege. It should be noted that the statements made in this article regarding the applicability of either body of law are not meant to indicate that the two are mutually exclusive. Instead, the observations refer to whether the body of law under discussion applies at all, regardless of whether the other body of law applies as well.
See, for example, Art. 1 of the European Convention on Human Rights, Art. 2, para. 1, of the International Covenant on Civil and Political Rights, and Art. 1, para. 1, of the American Convention on Human Rights.
Although the Inter-American human rights bodies tend to refer to ‘authority and control’, it is submitted that the central test and interpretation does not differ from the ‘effective control’ test applied by other human rights bodies.
For example, Lichtensztejn v. Uruguay, HRC, Communication No. 77/1980, 1990.
For example, Medvedyev and Others v. France, ECtHR, App. No. 3394/03, 2010.
Alejandre, Costa, De La Peña, and Morales v. Cuba, Inter-American Commission on Human Rights, Report No. 86/99, 1999.
Jaloud v. Netherlands, ECtHR, App. No. 47708/08, 2014.
Bankovic and Others v. Belgium and 16 Other States, ECtHR, App. No. 52207/99, 2001, para. 71; Al Skeini and Others v. United Kingdom, ECtHR, App. No. 55721/07, 2011, para. 135.
This statement is without prejudice to application of the lex specialis rule to determine which norm of international law applies in which situation, but is intended to indicate that in such operations human rights law (also) applies.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall), ICJ, Advisory Opinion of 9 July 2004, paras. 109–111.
See n. 13.
As regards the applicability of these principles in the context of an armed conflict and the (different) specific meaning given to the terms in that context, see Sect. 4.2 below.
While the provision in question lists three possible justifications for the use of force, Hessbruegge has correctly analyzed that a distinction should be made between intentional lethal force and coincidental loss of life as a result of the use of force of State agents, with self-defence forming the only justification for the intentional use of lethal force. Hessbruegge (2017), pp. 103–117.
McCann and Others v. United Kingdom, ECtHR, App. No. 18984/91, 1995, para. 149.
International Committee of the Red Cross (2013), p. 8.
For a further discussion of this, as well as the legal context of personal self-defence, see Boddens Hosang (2017), pp. 117–125.
McCann, paras. 149, 191 and 194; Wasilewska and Kałucka v. Poland, ECtHR, App. Nos. 28975/04 and 33406/04, 2010, para. 45.
This observation is shared by Lubell (2005), p. 745.
The responsibility on the part of those planning the operation is also set forth unequivocally in McCann and in Finogenov and Others v. Russia, ECtHR, App. Nos. 18299/03 and 27311/03, 2011.
Available online at http://wetten.overheid.nl/BWBR0006589/2017-01-01.
These include the NATO operation Ocean Shield and the EU operation Atalanta.
See, inter alia, Nuclear Weapons, ICJ, para. 25, and Wall, ICJ, para. 106.
For a detailed discussion of this aspect, see Boddens Hosang (2017), pp. 148–172.
International Committee of the Red Cross (2008), p. 3.
Note that such a development triggers an IAC but does not necessarily end the NIAC; both can exist in the same area simultaneously with concomitant complications as regards the legal regime applicable to each action carried out.
This comment is obviously intended to be without prejudice to the relevance and importance of the other rules and principles of IHL, including the principles of necessity and proportionality discussed below, and is merely intended to delineate the scope of the present discussion.
Note that the reference to combatants rather than enemy armed forces takes into account the fact that not all members of the armed forces are combatants and that such non-combatant members of the armed forces may not be attacked regardless of how the ROE in question are phrased. This also follows from the more general observation made above that the law applies regardless of the ROE and that the ROE do not and cannot (be interpreted to) authorize actions which are illegal under applicable law.
For an opposing view on this issue, see International Committee of the Red Cross (2009), Part IX, and Hessbruegge (2017), p. 220. The views on this issue expressed in those two sources do not, however, reflect current State practice or opinio juris. See Boddens Hosang (2017) pp. 206–214 for a discussion of the views opposing the ‘kill or capture’ approach advocated in the two sources mentioned above.
The present discussion is focused on the question of whether and when such persons may be lawfully targeted and does not address the (il)legality of the conduct of such persons resulting from the absence of combatant privilege.
The explanation of the elements establishing DPH is necessarily brief, given the constraints of this article. For a more extensive discussion of the elements and DPH in general, see International Committee of the Red Cross (2009).
International Committee of the Red Cross (2009), p. 70.
Boddens Hosang (2017), pp. 200–204.
International Committee of the Red Cross (2009), especially pp. 33 and 72.
Of course, such members may lose their continuous combat function, at which point the ‘normal’ DPH regime once again applies, including its temporal aspect.
Art. 14 of the ‘Instructions for the Government of Armies of the United States in the Field’, also known as the Lieber Code, 1863.
Arts. 51, para. 5(b), and 57, para. 2(b), of AP1. Bear in mind that ‘attack’ means any ‘act of violence’ whether offensive or defensive, as defined in Art. 49, para. 1, of AP1.
While this statement is intended to convey the differences in the two systems of law as regards the proportionality principle, the use of ‘theoretically’ in this statement reflects the reality that modern operations rarely allow such purely legal analyses and instead require far greater restraints in the use of force (the so-called ‘Collateral Damage Estimate Zero’ approach). Such restraints, however, are the result of political considerations and are related to maintaining public support and public opinion and are not the result of, or reflective of, any opinio juris as regards IHL.
However, see also n. 43, above.
Note that, as also pointed out in Gill (2016), the conflict in Syria can be divided into at least three NIAC: the conflict between the Syrian armed opposition groups and the Syrian government (in which the Syrian government is aided by Russia, making this conflict a transnational NIAC as well), the conflict between some of the organized armed groups, and the (transnational) conflict between the anti-ISIS coalition and ISIS. The hostilities between the Turkish armed forces and the Kurdish armed groups in the north of Syria further complicate the situation.
For an overview and discussion of customary IHL, see International Committee of the Red Cross (2005).
Ibid., pp. 25–36 (distinction) and 46–50 (proportionality).
See n. 43, above.
However, see also n. 52, above.
What is meant by ‘transition’ in these observations is a shift in emphasis or nature of the situation, resulting in a shift in predominance of applicability between the two bodies of law discussed here. As was stated in the introduction, these observations are not intended to imply a binary approach in which the two paradigms are mutually exclusive.
What is meant here is a de jure and complete shift in paradigms. Obviously other transitional or general developments in an armed conflict can cause a partial shift, in that the influence of human rights law increases (or decreases, in the escalatory model) as a result of the changing nature of the operation. Examples would include belligerent occupation, in which the applicability of human rights law is obvious but which still, given common Art. 2 of the Geneva Conventions, renders IHL applicable de jure, as well as transitional phases marked by a decrease (but not yet total cessation) of hostilities and an increase in the relative normality of life in some areas.
While it is, of course, possible that situations between States develop more gradually through a worsening of tensions, ranging from minor border clashes (dismissed as ‘incidents’) up to full-scale armed conflict, the dividing line is nonetheless clearer for IAC than for NIAC. After all, any use of armed force between States not dismissed by both sides as being merely an incident, triggers the applicability of IHL. For a discussion on the ‘incident’ approach as a half-threshold for applicability of IHL to the use of force between States, see Boddens Hosang (2017), pp. 153–163. Even discussions regarding a threshold (or absence thereof) in relation to IAC seem less troublesome, however, than differentiating between extensive riots, etc., on the one hand and the existence of a NIAC on the other hand.
Art. 82 of Additional Protocol 1.
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This article was written in a personal capacity and does not necessarily reflect the opinions of the Netherlands Ministry of Defence. The present author defended his Ph.D. dissertation on Rules of Engagement at the University of Amsterdam on 8 February 2017 and this article is based in part on the research in that context. The author would like to thank Mr. F. M. Koks and Dr. E. H. Pouw for their valuable comments on an earlier version of this article. The contents of this article, however, remain the sole responsibility of the present author.
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Boddens Hosang, J.F.R. The Effects of Paradigm Shifts on the Rules on the Use of Force in Military Operations. Neth Int Law Rev 64, 353–373 (2017). https://doi.org/10.1007/s40802-017-0096-z
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DOI: https://doi.org/10.1007/s40802-017-0096-z