Complex Legal Frameworks and Complex Operational Challenges: Navigating the Applicable Law Across the Continuum of Military Operations
Laurie R. Blank
Emory University School of Law
Emory International Law Review, Vol. 26, 2012
Emory Legal Studies Research Paper No. 12-219
Modern conflicts and stability operations pose complex challenges for both military and civilian actors tasked with promoting the rule of law during conflict and stability operations. Military operations can occur both during armed conflict and in situations that do not qualify as armed conflict, such as disaster relief or humanitarian intervention, for example. The legal classification of a particular situation – including non-conflict situations – determines which law governs the actions, rights and obligations of those involved. The continuum of conflict ranges from domestic disorders to non-international armed conflicts to international armed conflicts, including belligerent occupation. Other situations involving the use of military force or military capabilities may include counter-piracy or counter-terrorism operations, disaster relief, or humanitarian assistance, for example. In addition, conflicts sometimes involve elements of both international and non-international armed conflict and often evolve from one form of conflict into another. The emergence of new forms of conflict, for which there is may be no ready characterization, complicates matters.
Most contemporary military operations thus involve multiple legal frameworks, including international humanitarian law, human rights law, and the domestic law of both the territorial state and the state sending troops, as well as, perhaps, a United Nations mandate and bilateral or multilateral treaties, or additional layers such as joint operations doctrine. Understanding how these various legal regimes interact in practice on the ground is a challenging task and is fundamental to promoting the rule of law in conflict and post-conflict environments. For example, uncertainty about the applicable law can impact a range of determinations including, among others, detention regimes, targeting, and the parameters of the authority and responsibility for conducting operations. Identifying the applicable law in a conflict or during a stability operation is thus an essential first step that enables both military and civilian actors to define their engagement in any international intervention.
This article analyzes the impact of differing legal characterizations – or a lack of characterization altogether – in complex conflict situations. Amid the complicated set of considerations that contribute to conflict characterization, the interaction of different applicable legal frameworks poses several key issues that policy-makers and military and civilian decision-makers should consider and weigh seriously. In particular, this article presents four main categories of operational concepts that can be particularly vulnerable to uncertain conflict characterizations and highlights the legal fault lines that may result from such ambiguity or uncertainty: Detainee Issues, including detention, treatment, transfer and trial; Use of Force, encompassing targeting, weapons and host nation influence on operations; Civil-Military Relations, including humanitarian assistance and relations between the military and non-governmental organizations; and Third State responsibilities during conflict and related situations. In all of these areas, operational challenges can arise in the face of uncertain or differing characterizations of conflict, underscoring the importance of the normative legal frameworks and the need to understand how they interact and the consequences of any legal fault lines.
Number of Pages in PDF File: 49
Keywords: international humanitarian law, law of armed conflict, stability operations, conflict, targeting, prisoners of war, detention, military operations
Date posted: March 18, 2012 ; Last revised: October 10, 2012