COUNTERINSURGENCY WARFARE The Interplay Between the Legal Paradigms of Law Enforcement and the Conduct of Hostilities

Author: Melina Gayle Mouris

ANR: 685816 - SNR: 1266007

Supervisor: Prof. Dr. N.M. Rajkovic

LLM International Law and Global Governance

Department European and International Public Law

Faculty of Law, Tilburg University

The Netherlands, December 2019

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“THE FIRST THING THAT MUST BE APPARENT WHEN CONTEMPLATING THE SORT OF ACTION WHICH A GOVERNMENT FACING INSURGENCY SHOULD TAKE, IS THAT THERE CAN BE NO SUCH THING AS A PURELY MILITARY SOLUTION BECAUSE INSURGENCY IS NOT PRIMARILY A MILITARY ACTIVITY.”

~ General Sir Frank Kitson1 ~

1 Kitson 1977, p. 283.

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ABSTRACT

The wars fought nowadays cannot be compared with the traditional ways of warfare. Conflicts occur in smaller scale and among the population within urban areas. 2 In order to quell insurgencies, States have come to realize the need for a population centered approach. 3 Counterinsurgency is a military tactic of fighting insurgencies where it is of utmost importance to win the heart of the population. The specific characteristics inherent to modern-day insurgencies cause difficulties with regard to the applicable rules of international law. This research therefore examines the interplay between the law enforcement paradigm and the conduct of hostilities paradigm in the context of counterinsurgency operations. The counterinsurgency operation performed by the International Security Force Afghanistan offers an illustrative example of the interplay between the two paradigms from a practical perspective.

Warfare – Counterinsurgency – Law Enforcement and the Conduct of Hostilities – International Human Rights Law and International Human Rights Law – International Security Force Afghanistan

2 Banks 2013, p. 10. 3 Pouw 2013, p. 2.

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PREFACE

This master thesis is the end result of many years of endeavor and forms the final requirement of the Master International Law and Global Governance. Conducting my studies, doing an internship at the juridical department of the Dutch Ministry of Defense and the writing of my master thesis has been a period in which I have gained a better perspective in my future career path. Both research and the law of war have fascinated me for several years and the last few months have only confirmed this interest.

This master thesis has certainly not been written without guidance. First and foremost, I would like to express my profound gratitude towards my supervisor, prof. dr. Rajkovic, who has been very instrumental. His support, sympathetic assistance and valuable feedback have helped me tremendously in completing my thesis.

My sincere thanks also goes to Lieutenant Colonel Pouw for his time and effort in discussing the subject of this thesis and explaining his dissertation on which this thesis builds upon. I realize that it is not self-evident for him to invest valuable time in my research and I am therefore very grateful for his help.

Furthermore, I want to extend my love and gratitude to my parents for their unconditional support. I proudly dedicate this master thesis to them. Also many thanks to my partner and my friends for their useful feedback and encouragement, especially in the stressful times.

Melina Mouris,

Tilburg, December 2019

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CONTENTS

Abstract ...... 4

Preface ...... 5

List of abbreviations ...... 8

1. Introduction ...... 10

1.1. The problem ...... 10

1.2. Research purpose and research questions ...... 13

1.3. Significance of the research ...... 13

1.4. Methodology and overview ...... 15

2. Counterinsurgency Warfare ...... 18

2.1. Introduction ...... 18

2.2. Insurgency ...... 18

2.2.1. The asymmetry ...... 20

2.3. Counterinsurgency ...... 22

2.3.1. Classical counterinsurgency ...... 23

2.3.2. Contemporary counterinsurgency ...... 24

2.3.3. Types of counterinsurgency operations ...... 25

2.4. Counterinsurgency and counterterrorism ...... 26

2.5. Conclusion ...... 27

3. The Legal Paradigms ...... 29

3.1. Introduction ...... 29

3.2. IHRL and IHL ...... 29

3.3. The two legal paradigms ...... 30

3.3.1. The legal paradigm of law enforcement ...... 31

3.3.2. The legal paradigm of the conduct of hostilities...... 32

3.3.3. The primary differences ...... 33

3.3.3.1. The principle of necessity ...... 34

3.3.3.2. The principle of proportionality ...... 34

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3.3.3.3. The principle of precaution ...... 35

3.4. Determining the parameters ...... 36

3.4.1. Status, function or conduct ...... 36

3.4.2. Degree of control and intensity of violence ...... 38

3.5. The synergy between the legal paradigms ...... 39

3.5.1. Law enforcement as the default applicable paradigm ...... 39

3.5.2. The conduct of hostilities as the prevailing paradigm ...... 41

3.6. Conclusion ...... 42

4. ISAF and the Use of Force ...... 45

4.1. Introduction ...... 45

4.2. ISAF and the conflict in Afghanistan ...... 45

4.3. The principle of distinction ...... 48

4.3.1. Distinguishing insurgents from the civilian population ...... 48

4.3.2. Insurgents and the use of civilian objects ...... 49

4.3.3. Minimum use of force ...... 50

4.4. The principle of proportionality ...... 51

4.5. Potential overlap ...... 54

4.5.1. Counter-narcotics operations ...... 55

4.5.2. Vehicle checkpoints ...... 57

4.6. Conclusion ...... 58

5. Concluding Remarks ...... 60

5.1. Overview of the analysis ...... 60

5.2. Reflections on future research and legislation ...... 61

Bibliography ...... 63

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LIST OF ABBREVIATIONS

API Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts APII Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts BPUFF United Nations Basic Principles on the Use of Force and Firearms CCF Continuous combat function CCLEO United Nations Code of Conduct for Law Enforcement Officials COIN Counterinsurgency EU European Union HRC United Nations Human Rights Council IAC International armed conflict ICCPR International Covenant on Civil and Political Rights and on Economic, Social and Cultural Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICRC International Committee on the Red Cross IDF Israeli Defense Forces IED Improvised explosive device IHL International Humanitarian Law IHRL International Human Rights Law ISAF International Security Assistance Force

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LOAC Law of Armed Conflict NATCOIN National counterinsurgency NIAC Non-international armed conflict OCCUPCOIN Counterinsurgency during belligerent occupation OEF Operation Enduring Freedom ROE Rules of Engagement SUPPCOIN Counterinsurgency in support of another State TRANSCOIN Transnational counterinsurgency U.S. United States U.S. COIN Manual U.S. Army Field Manual, FM 3-24 UDHR Universal Declaration of Human Rights UN United Nations UNSC United Nations Security Council

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1. INTRODUCTION

1.1. The problem

We are currently living in an era where war is no longer typically fought between States and conventional warfare no longer subsists as the prevailing form of armed conflict. Such wars were fought on a large scale between professionally trained armed forces of States through traditional military methods, such as the use of firepower and battlefield tactics.4 Instead, we are now living in an age of postmodern warfare where armed conflicts increasingly occur in smaller scale within populated areas. These conflicts are hence denoted as “war among the people”.5 They are often of a non-international nature6 and generally fought by insurgents who, briefly phrased, are those who desire to change the status quo7 and seek to destroy the regime through for example subversion or the use of force.8 Insurgencies are often seen as terrorists and confronted through the traditional ways of fighting wars.9 They however depend on and grow through the support of the local population, which encompasses that it is important to win over the “hearts and minds” of the people in order to prevent insurgents from obtaining their support.10 Conflicts in urban areas hence lead to operational challenges for combatants, forcing them to change their policies, training and tactics in order to avert excessive damage to the population and civilian objects.11 This tactic of fighting insurgencies has been defined as ‘counterinsurgency’ (hereinafter: COIN), which withal is the essential subject of this thesis. In countering conflicts such as in Iraq and Afghanistan, States have become aware of the need for a population centred approach in order to quell the insurgencies.12 Contemporary COIN therefore rejects the conventional kill-capture

4 Pouw 2013, p. 1. 5 Banks 2013, p. 10. 6 Gaggioli 2013, p. iii. 7 Yurtbay 2018, p. 23. 8 U.S. Government Counterinsurgency Guide 2009, p. 6; The meaning of an insurgency will be explained in more detail in chapter 2. 9 Pouw 2013, p. 2. 10 Sitaraman, p. 4. 11 Muhammedally 2016, p. 226. 12 Pouw 2013, p. 461.

P a g e | 11 strategy and instead follows a win-the-population strategy in order to achieve victory.13 Such “new threats” as described above have instigated a legal debate on the COIN doctrine14 and a more general heed for the applicable norms within international law to situations of armed conflict.15 International Human Rights Law (hereinafter: IHRL) and International Humanitarian Law (hereinafter: IHL) are the two primary legal regimes governing the use of armed force within international law. 16 While IHRL can be applied both in peacetime and in an armed conflict situation, the scope of IHL is more narrow as it only extents to situations of armed conflicts.17 In addition, it has become commonly accepted that obligations arising out of IHRL remain valid during armed conflicts,18 although the exact reach of the extraterritorial application of IHRL is still being disputed in the legal field.19 Within these legal frameworks of international law, the use of force by combatants and law-enforcement officials in the context of an armed conflict is traditionally governed by two legal paradigms: the law enforcement paradigm and the conduct of hostilities paradigm.20 The rules of IHRL governing law enforcement were drafted with the aim to protect individuals from abuse by the government. These rules hence provide guidance in the use of force by State agents and the maintenance of law and order.21 In contrast, IHL rules regulating the conduct of hostilities have been designed to correspond to the realities that armed conflicts encompass. These rules are derived from the belief that violence is immanent to warfare as military operations essentially aim to defeat the armed forces of the adversary.22 The specific features of contemporary insurgencies raise challenges in both a practical and legal manner as it further complicates the already controversial interplay between the two regimes in international law.23 Insurgents are usually both fighters, and thus legitimate targets in

13 Sitaraman, p. 23. 14 See for example Sitaraman 2016, Banks 2013, Pouw 2013 and Kilcullen 2010. 15 See for example Pouw 2013 and the various reports of the ICRC. 16 Pouw 2013. 17 Gaggioli 2013, p. 5. 18 Aviv Yeini 2019, p. 469. 19 Gaggioli 2013, p. 5. 20 Ibid., p. 1. 21 Ibid., p. 7. 22 Ibid., p. 6. 23 See inter alia Pouw 2013 and Gaggioli 2013.

P a g e | 12 the sense of IHL, as criminals under domestic legislation. The counterinsurgent is consequentially also confronted with law enforcement norms besides those of the conduct of hostilities paradigm.24 Nevertheless, no clear-cut answer can be found within international law solving the legal conundrum regarding the applicable paradigm in situations of an armed conflict. Legal scholars express different and or contradictory views on the determination of the lex specialis with regard to the paradigms of law enforcement and the conduct of hostilities. Some assume that the conduct of hostilities paradigm prevails over the law enforcement paradigm with regard to the use of force in armed conflicts. Moreover, there are scholars that recognize the paradigm of law enforcement as the lex specialis in non-international armed conflicts, as the conduct of hostilities paradigm lacks clarity and precision. Others consider that the prevailing paradigm must be determined in the light of the circumstances of the situation.25 This lack of clarity is extremely problematic due to dissimilarities in the nature of the two paradigms and the pivotal consequences connected to their application. For instance, the law enforcement paradigm only allows killing in order to safeguard a person’s life and when no other means are available. In contrast, under the conduct of hostilities paradigm fighters are viewed as legitimate targets and may thus be killed if the principles of IHL, such as proportionality, are met.26 The premise regarding the need for clarity on the issue is especially apparent from the recent ruling of the Supreme Court of Israel given in the case of Yesh Din v. IDF Chief of Staff in 2018.27 The Supreme Court of Israel has challenged the existence of the separate legal paradigms of law enforcement and the conduct of hostilities, by allowing the norms of law enforcement within the realm of IHL and consequently creating a new paradigm.28 This new paradigm is explained by Aviv Yeini as “extremely underdeveloped” and he subsequently admonishes that it “may very well be abused by States to pick and choose which law enforcement norms (under LOAC29 or IHRL) they wish to adhere to rather than accept either body of law as it stands”.30 This judgement is a vivid

24 Gaggioli 2013, p. iii. 25 Ibid., pp. iii-iv. 26 Ibid., p. iv. 27 HCJ 24 May 2018, 3003/18, 3250/18 (Yesh Din et al. v. IDF Chief of Staff et al.); IDF is the abbreviation for the Israeli Defense Forces, the military forces of Israel. 28 Aviv Yeini 2019, p. 486. 29 LOAC (law of armed conflict) is a different term for IHL. 30 Aviv Yeini 2019, p. 464.

P a g e | 13 example of the serious lack of clarity and the strong need for clearly defined parameters within international law.

1.2. Research purpose and research questions

This research aims to highlight the existing legal gap within international law regarding the application of the legal paradigm of law enforcement and the legal paradigm of the conduct of hostilities during COIN operations. It aims to add to the ongoing discussion on the interplay between the said paradigms and attempts to apply the legal theory to COIN operations.

The main research question that this study seeks to answer is: ‘What influences the interplay between the legal paradigms of law enforcement and the conduct of hostilities in the context of contemporary counterinsurgency warfare?’

The following sub-questions will help in answering the research question framed above: 1. What is contemporary counterinsurgency warfare and how did it evolve? 2. What are the key differences between the legal paradigm of law enforcement and the legal paradigm of the conduct of hostilities? 3. What is the prevailing legal paradigm governing the use of force by ISAF forces?

1.3. Significance of the research

The complex characteristics inherent to modern-day insurgencies have raised unresolved questions regarding the applicable rules and principles in situations of armed conflict. This study therefore aims to contribute to this existing lacunae within international law. In sum, this research applies the ongoing debate on the interplay between the law enforcement paradigm and the conduct of hostilities paradigm on COIN operations. This study builds upon the dissertation written by Pouw, which he calls “International human rights law and the law of armed conflict in the context of counterinsurgency: with a particular focus on targeting and

P a g e | 14 operational detention”.31 Pouw has examined the ongoing debate on the interplay of IHRL and IHL within the normative paradigms of law enforcement and the conduct of hostilities in light of the contemporary COIN doctrine. Researching the interplay between IHRL and IHL is especially interesting in the context of COIN, due to the features of contemporary insurgencies. Pouw argues, in the context of targeting, that the norms of IHRL take a primary position within the paradigm of law enforcement, while not being affected by the applicable norms of IHL in any manner. He simultaneously states that the norms of IHL take a leading role within the paradigm of hostilities. Although IHRL remains pertinent in the second paradigm, its norms do not affect the normative essence of the law of hostilities under IHL.32 According to Pouw, the interplay between the two paradigms is context-depended with regard to the various forms of COIN.33 This thesis seeks to complement this area of research by adding more clarity on the differences and interplay between the rules and principles of the legal paradigms of law enforcement and the conduct of hostilities and determines the parameters necessary for assessing the applicable paradigm in situations of COIN. It focusses on one form of COIN in a case study on the International Security Assistance Force (hereinafter: ISAF). The armed conflict in Afghanistan offers an illustrative, and if not the most prominent, example of a contemporary COIN operation and hence elucidates the said interplay in COIN from a practical perspective. Such clarity is of great importance to legal scholars, and even more significantly, to military commanders and victims of armed conflicts. This research therefore aims to intrigue both legal scholars and military practitioners working in this field of law. At the outline, this study seeks to provide a clear overview of the meaning and genesis of COIN. Only when one understands the roots and essence of the COIN doctrine it is possible to discuss the applicable paradigm. This also requires a scrutiny of the said paradigms before its applicability in situations of COIN can be determined. Sitaraman believes that COIN operations will be essential for wars that are likely to happen in the future. 34 It is therefore of vital

31 Pouw 2013. 32 Ibid., p. 356. 33 Ibid., p. 9. 34 Sitaraman 2013, p. 34.

P a g e | 15 importance that more perspicuity arises on the factors determining the correct application of the rules and principles of a certain paradigm.

1.4. Methodology and overview

This study focuses primarily on legal research compromising of an analytical and critical literature review of multiple sources. The traditional sources of international law, such as inscribed in Article 38 of the Statute of the International Criminal Court of Justice,35 are of key importance throughout this study. In addition, recourse has been made to policy sources, such as the U.S. Army Field Manual, FM 3-24 (hereinafter: U.S. COIN Manual),36 to provide a more thorough understanding of the COIN doctrine, its leading policy and the operational practices. The second chapter gives insight in the meaning of an insurgency and the COIN doctrine, drawing mainly from the work of the French lieutenant colonel Galula, whose book “Counterinsurgency Warfare: Theory and Practice” is esteemed as a classic in the field of COIN.37 In addition, the second chapter provides for an overview of the evolution of COIN throughout the years, drawing from various publications of Kilcullen “written mainly in the field during the conflicts in Afghanistan, Iraq, and elsewhere”.38 The third chapter briefly touches upon the frameworks of IHRL and IHL, but focuses on the relevant rules and principles of the ensuing paradigms of law enforcement and conduct of hostilities. In addition, it attempts to map the interplay between the said paradigms and identifies the main parameters necessary to determine the applicable paradigm in a certain situation. In order to do so, reference has been made to the work of the International Red Cross Committee (hereinafter: ICRC).39 The ICRC has a considerable international reputation and its view on IHL therefore carries much prestige.

35 These sources include international conventions, customary international law, the general principles of law recognized by civilized nations, judicial decisions and the teachings of the most highly qualified publicists of the various nations. 36 FM 3-24/MCWP 3-33.5 Counterinsurgency 2006 (FM 3-24 was first published in 2006 and consecutively became a document of high-profile). 37 Galula 2006-II (originally published in 1964 and republished in 2006). 38 Kilcullen 2010, p. ix. 39 See inter alia Gaggioli 2013.

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The fourth chapter includes a case study on a COIN operation executed by ISAF in Afghanistan. It examines the debate on the applicable paradigm against the backdrop of the COIN war fought in Afghanistan, which illustrates the tools of COIN and connects the observations made in chapter 3 to the contemporary COIN doctrine explained in chapter 2. Moreover, it discusses the divergent application of IHL principles and analyzes difficulties encountered by ISAF forces, particularly in situations where the two legal paradigms overlap. Finally, in the fifth and last chapter of this study the findings of the former chapters are briefly summarized and an answer to the main research question is formulated. This chapter additionally reflects upon the need for further research and possible legal developments in the future.

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“THE SHOOTING SIDE OF THIS BUSINESS IS ONLY 25 PER CENT OF THE TROUBLE; THE OTHER 75 PER CENT IS GETTING THE PEOPLE OF THIS COUNTRY BEHIND US…THE ANSWER LIES NOT IN POURING MORE TROOPS INTO THE JUNGLE, BUT IN THE HEARTS AND MINDS OF THE PEOPLE.”

~ Field Marshal Sir Gerald Templer 40 ~

40 Cloake 1985, p. 262. Field Marshal Sir Gerald Templer was High Commissioner and Director of Operations in Malaya (1952-1954).

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2. COUNTERINSURGENCY WARFARE

2.1. Introduction

In the aftermath of the total wars41 of the last century greater humanitarian awareness grew among nations. They consequently started to reshape IHL in order to grant protection to civilians.42 COIN has become the most notable strategy of in any case the U.S. foreign policy according to Sitaraman. 43 Although COIN operations had already emerged before the 21st century, Sitaraman believes that they will be vital for wars that are likely to happen in the future.44 This chapter explains the COIN doctrine consecutively through the notions of insurgency and counterinsurgency. It subsequently gives insight in its discrepancy with notions of terrorism and counterterrorism.

2.2. Insurgency

The noun ‘insurgent’ is defined in the Cambridge Dictionary as “someone who is fighting against the government in their own country”.45 In traditional IHL no reference of the aforementioned term can be found.46 The doctrine of insurgency has however been mentioned and defined multiple times in various documents and publications. It is stated in the U.S. COIN Manual that “an insurgency is an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control”.47 Galula defines an insurgency as “a protracted

41 The notion of ‘total wars’ refers to warfare were there were no restrictions with regard to the weapons used, the territory of the conflict, the involved combatants or the pursued objectives (see https://www.lexico.com/en/definition/total_war, accessed on 2 December 2019). 42 Sitaraman 2013, p. 23. 43 Ibid., p. 3. 44 Ibid., p. 34. 45 https://dictionary.cambridge.org/dictionary/english/insurgent, accessed on 31 March 2019. 46 Pouw 2013, p. 13. 47 FM 3-24/MCWP 3-33.5 Counterinsurgency 2006, paras. 1-2.

P a g e | 19 struggle conducted methodically, step by step, in order to attain specific intermediate objectives leading finally to the overthrow of the existing order”.48 The struggle is primarily of a political nature where the insurgency aims to either seize, challenge or annihilate the political control of a particular area.49 Their aim is to effect change by altering the existing status quo. 50 The use of force (such as guerilla tactics and coercion), subversion, propaganda and political mobilization are just a few examples of means through which insurgents aim to reach their goal. Their principal aim is not so much to kill counterinsurgents, but rather to diminish the authority and legitimacy of the government while simultaneously increasing their own control and influence.51 Determining the exact start of an insurgency is difficult from both a legal and political perspective as the beginnings are very unclear. 52 An insurgency arises throughout a series of stages. Although no insurgency evolves in the same way, there are some patterns that can be noticed. The U.S. Government Counterinsurgency Guide designates the stages of “subversion and radicalization, popular unrest, civil obedience, localized guerrilla activity and wide-spread guerrilla warfare to open, semi-conventional armed conflict”.53 The progression and outcome varies in almost every single situation. An outcome may for example be that an insurgency achieves its goal of overthrowing a State’s government or that the insurgency demands political accommodation within the government. 54 Insurgencies exist in various forms and COIN operations can therefore not be fit into a standard model. Kilcullen eloquently describes it as follows:

Insurgencies, like cancers, exist in thousands of forms, and there are dozens of techniques to treat them, hundreds of different populations in which they occur, and several major schools of thought on how best to deal with them. The idea that there is one single ‘silver

48 Galula 2006-II, p. 2. 49 U.S. Government Counterinsurgency Guide 2009, p.2. 50 Yurtbay 2018, p. 23. 51 U.S. Government Counterinsurgency Guide 2009, p. 6. 52 Galula 2006-II, p. 2. 53 U.S. Government Counterinsurgency Guide 2009, p. 11. 54 Ibid., p. 2.

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bullet’ panacea for insurgency is therefore as unrealistic as the idea of a universal cure for cancer.55

In their traditional form, insurgencies mainly concern internal affairs and only take place within the territory of a single State. 56 Such an insurgency can hence be typified as a “national insurgency”. The primary opponents are the insurgency and the government of a State. Metz and Millen however argue that national insurgencies are triangular, meaning that also other actors are involved besides the insurgents and the governmental regime. Those “other actors” can among others be the population of the State, external States, organizations and groups, and can bring about a shift in the relationship between the opponents. 57 Although national insurgencies are chiefly internal, there frequently is a transnational element. An insurgency in a certain State may use another State’s territory as its sanctuary or may use it for executing cross-border activities. Moreover, in the State where an insurgency has arisen, troops of another State may be present in the former State to create an insurgency or offer assistance to an existing insurgency.58

2.2.1. The asymmetry The nature of COIN, the imbalance in the strength of the adversaries (at least at the beginning) and the disparities that exist in the opponents assets and liabilities, make that the war fought between the insurgent and the counterinsurgent can be typified as an asymmetric war.59 This essential feature of COIN distinguishes it from conventional warfare. Metz and Johnson have given the following helpful definition of “strategic asymmetry”:

In the realm of military affairs and national security, asymmetry is acting, organizing, and thinking differently than opponents in order to maximize one’s own advantages, exploit an opponent’s weaknesses, attain the initiative, or gain greater freedom of action. It can be political-strategic, military-strategic, operational, or a combination of these. It can entail different methods, technologies, values, organizations, time perspectives, or some

55 Kilcullen 2010, p. 1. 56 Pouw 2013, p. 30. 57 Metz & Millen, p. 2. 58 Pouw 2013, p. 30. 59 Galula 1964, p. 3.

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combination of these. It can be short-term or long-term. It can be deliberate or by default. It can be discrete or pursued in conjunction with symmetric approaches. It can have both psychological and physical dimensions.60

There are thus various dimensions of asymmetry, of which the most striking ones will be discussed below. It is for instance the insurgent who often enjoys the advantage of the strategic initiative, as he may choose the exact hour of his move. The counterinsurgent is however very much restricted in acting pre-emptive against an insurgency. For as long as the insurgent has not made it clear what his exact intentions are through the use of overt force and or subversion, the insurgency is merely a vague and potential danger and hence not yet a concrete target that would serve as a legitimate ground for the counterinsurgent to make a move. It is possible for an insurgency to evolve to a large extent through lawful means and without using violence, but that will mainly be possible in a country where it is tolerated to form an opposition against the government.61 The counterinsurgent has a great advantage in tangible assets. He enjoys the usual national and foreign privileges due to its status as a government. Think of assets such as diplomatic recognition, legitimate power, financial recourses, command of the military, transportation facilities, means of communication, and control of and access to information and the media. As expressed by Galula, “he is in while the insurgent, being out, has none or few of these assets”.62 This tangible asymmetry also entails technological asymmetry, meaning that the counterinsurgent is in the possession of superior military equipment such as high-tech weapon systems.63 As the insurgent lacks tangible assets, it will seek to utilize its intangible asset in order to compensate the imbalance. The so called intangible asymmetry arises through the intangible asset of the “ideological power of cause” by which insurgents justify their conduct.64 When an insurgency arises, a cause is their one and only asset and it must therefore be a strong one if they want to overcome this imbalance.65 Pouw explains a cause as “an acute or latent grievance that

60 Metz and Johnson II 2001, pp. 5-6. 61 Galula 2006-II, p. 3. 62 Ibid., pp. 3-4. 63 Schmitt 2007, p. 14. 64 Galula 2006-II, p. 4; Pouw 2013, p. 31. 65 Galula 2006-II, p. 8.

P a g e | 22 characterizes the population’s relationship with the existing government, and which is transformed into a principle or movement that may mobilize popular support and which the population is willing to defend or support militantly”.66 The government is responsible for maintaining public order and hence bears great liability. As the insurgent has no responsibility, it can make great use of the weapon of propaganda. The counterinsurgent is judged on his acts, not so much on promises. The insurgent is judged on his promises instead of his acts. Through propaganda the insurgent may thus use tricks such as lying and exaggerating. Unlike the counterinsurgent, the insurgent does not necessarily need to prove his promises.67 This also relates to the dimension of normative asymmetry, which exists when the legal or policy norms that govern the conduct of the adversaries differs.68 Insurgents for instance do not have any obligations under IHRL, as only States are party to those treaties. Moreover, normative asymmetry may arise in the field of IHL as well.69

2.3. Counterinsurgency

Insurgencies are dependent on the support of the local population, or their submission at the least. 70 Counterinsurgents therefore believe that victory can only be obtained through the protection of the local populace and hence preventing the insurgency from growing and obtaining support.71 They combine military strategy with humanitarian objectives.72 On the short term soldiers are expected to place their own safety at greater risk, in order to create safety in the long run.73 Besides military operations, COIN also includes economic, social, legal and political reconstruction of the society, so that the community can prevent insurgencies from emerging or growing.74 COIN thus concerns all direct and indirect methods of repressing an insurgency.75 The

66 Pouw 2013, p. 31. 67 Galula 2006-II, p. 9. 68 Schmitt 2007, p. 15. 69 Pouw 2013, p. 32. 70 Sitaraman 2013, p. 36. 71 Ibid., p. 4. 72 Ibid., p. 32. 73 Ibid., p. 4. 74 Ibid., p. 35. 75 Huizing 2012, p. 46.

P a g e | 23 nature of COIN evolves over time in its responses due to shifts within insurgencies.76 A distinction can consequently be drawn between classical COIN and contemporary COIN, which are consecutively described in this paragraph.

2.3.1. Classical counterinsurgency According to Kilcullen classical COIN emerged as a reaction to the “wars of national liberation” that took place from 1944 until approximately 1980, when numerous de-colonialization wars and other nationalistic and political revolutions were ongoing in western countries.77 It was also during this post-World War II era that the term ‘counterinsurgency’ got introduced.78 Classical COIN aims to restore the authority of the government and gain control over the populace.79 As explained by Pouw:

The doctrine of classical counterinsurgency emphasizes the need for a clear political goal to counter the insurgency, aimed at defeating the political subversion, and not the insurgents, whereby the full capability of resources of government is used, requiring a coordinated plan to unify intelligence, political, administrative, social-economic, military, and law enforcement efforts, and in which the principle of legitimacy is key.80

Its framework was designed based upon the Maoist model of guerilla warfare, drafted by Mao Zedong, which approaches an insurgency as one that exists within a defined territory.81 The U.S. participation in Vietnam was a “supreme historical failure” according to Gentil, as the Americans tried to fight the insurgency with a conventional approach. The methods used by the British during the Malayan Emergency (1948-1960) on the other hand are viewed by Gentil as a “historical model of success” as they understood population-centric COIN and thus the significance of “winning the hearts and minds” of the population.82 The French methods used during the Algerian War of independence also still influences the military doctrines used when

76 Kilcullen 2006, p. 112. 77 Ibid., p. 111; Huizing 2012, p. 46. 78 Huizing 2012, p. 46. 79 Ibid., p. 48; Leading theorists in the field of classical COIN are among others David Galula, Frank Kitson and Robbert Thompson, whose classical theories are colored by the ideas of earlier theorist such as Louis Lyautey, C.E. Callwell and Charles Gwynn. 80 Pouw 2013, p. 35. 81 Nagl and Burton 2010, p. 123; Jones and Smith 2010, p. 100. 82 Gentil 2009, pp. 6-9.

P a g e | 24 approaching contemporary conflicts.83 After serving in Algeria, Galula has defined the “basic principles of counterinsurgency warfare” based on his military experience. The first principle defines the population as the objective of the war. The second principle explains that the support of the population needs to be organized. It is not spontaneous and must be acquired “through the efforts of the minority that actively favors the counterinsurgent”. The third principles states that only if the counterinsurgent is acknowledged as the vanquisher, the minority will arise and the majority will subsequently follow. The fourth principle recognizes that the tangible superiority of the counterinsurgent is not enough to quell an insurgency at once, and he therefore needs to focus on achieving his goal “area by area”. The fifth and last principle asserts that the ideological leverage of the insurgent diminishes significantly in time as the issue of war and peace turns into the central one. The essential merits of the conflicting causes become secondary in dictating the stance of the population. In contrast, it becomes relevant which side is going to be the one on the winning end, which side is the most threatening and which side provides the greatest protection.84

2.3.2. Contemporary counterinsurgency Contemporary COIN displays an interesting revival of classical COIN as described in the former paragraph. Within contemporary COIN a differentiation can be made between two distinctive schools: the “neo-classical school” and the “global insurgency school”.85 The neo-classical school arose in the nineties of the 20th century and became more prominent in the years after the Iraqi war. It seeks to reinvigorate the classical COIN principles to face the changing environment of challenges posed by contemporary resistance movements.86 A well-known reflection of this schools thoughts can be found in the U.S. COIN Manual, about which the American researcher Frank Hoffman stated that “the editors strove to merge the so-called traditional approaches with the realities of a new world shaped by globalization and the spread of extremist ideologies”.87

83 Huizing 2012, p. 47. 84 Galula 2006-I, pp. 246-247. 85 Jones and Smith 2010, p. 81. 86 Ibid., pp. 84-89. 87 Hoffman 2007, pp. 72-73.

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An alternative school within the contemporary COIN paradigm is the global insurgency school, which origins can be traced back to the aftermath of 9/11. This school differs from the neo-classical school in its approach towards the threat and its more intricate strategic responses.88 It seeks to connect characteristics of national insurgencies with movements within the international system, as it perceives the “de-territorialized Islamist jihadism” as a globalized insurgency, chiefly due to the global constituency of Bin Laden that has spread over a large number of States.89 As noted by the former British Army officer Mackinlay:

His financial, logistical and organisational assets do not come from the same source as his popular support, as they would in a national insurgent organisation. His hold over his followers is emotional, no one has seen him but he has the exposure of an international star, which is beamed intensively by a complicit media, using the proliferating communicating system of the McWorld.90

Kilcullen presents a “strategy of disaggregation” as an antidote for the “global Islamist insurgency”. This strategy requires the links that allow a global functioning of the jihad movement to be either dismantled or de-linked as, according to Kilcullen, it is the global element that poses the real danger.91 This school thus highlights the global feature of today’s insurgencies.92

2.3.3. Types of counterinsurgency operations Pouw distinguishes the following four situational contexts in which COIN operations may take place: “national counterinsurgency (NATCOIN), counterinsurgency during belligerent occupation (OCCUPCOIN), counterinsurgency in support of another State (SUPPCOIN), and transnational counterinsurgency operations (TRANSCOIN)”.93 These different situational contexts are relevant for designating the factors necessary to determine the applicable legal paradigm. The first situational context, that is NATCOIN, involves an armed conflict between non-State actors and a domestic government. Such conflicts usually take place within the territory of that State. Within the context of OCCUPCOIN the term counterinsurgent refers to the ‘occupying power’

88 Jones and Smith 2010, p. 84. 89 Ibid., pp. 94. 90 Mackinlay, The Guardian 28 October 2019. 91 Kilcullen 2004, p. 37 92 Jones and Smith 2010, p. 84. 93 Pouw 2013, p. 8.

P a g e | 26 responding to an insurgency arising within its occupied territory. OCCUPCOIN operations are those operations that support the occupying power. Moreover, SUPPCOIN operations provide support to the government of another State countering national insurgents. Such operations are carried out by a State either on its own or as part of an international organization, for instance the North Atlantic Treaty Organization (NATO). Finally insurgents may find sanctuary in another State, which is the situation where TRANSCOIN operations can be carried out. The counterinsurgent may in such a situation carry out an operation within the territory of that ‘other’ State.94 The case study conducted in chapter 4 regards a SUPPCOIN operation.

2.4. Counterinsurgency and counterterrorism

Both COIN and counterterrorism are strategies designed to combat small wars.95 Although both responses are closely linked, it is important to acknowledge the differences between the two types of operations, and hence also the distinction between an insurgency and terrorism as such. As explained at the beginning of this chapter, an insurgency seeks to challenge the status quo of a State.96 It aims to undermine the control and legitimacy of the regime, while simultaneously increasing their own control and influence. 97 Behind insurgencies lie profound problems or grievances and their objectives are therefore usually deemed as legitimate if their acts are carried out on legal grounds. It is however their methods that are not acceptable. According to Kilcullen, an insurgency is, unlike terrorism, a “whole-of-government problem”.98 In order to vanquish an insurgency, the counterinsurgent must win the hearts and minds of the population through for instance negotiations. Terrorism on the other hand is a tactic carried out by terrorists. The latter can refer to an individual or a criminal group, but also insurgencies and States can execute acts of terrorism.99 Although unanimity has not yet been reached on a legal definition of terrorism,100 an attempt

94 Ibid., pp. 8-9. 95 Watkin 2016, p. 159. 96 Pouw 2013, p. 29. 97 U.S. Government Counterinsurgency Guide 2009, p. 6. 98 Kilcullen 2005, p. 605. 99 Watkin 2016, p. 180. 100 Ibid., p. 180.

P a g e | 27 has been made by Saul who explains the legal concept of terrorism as “any serious, violent, criminal act intended to cause death or serious bodily injury, or to endanger life, including by acts against property”, not committed in an armed conflict, that are politically, ideologically, religiously or ethnically driven and seek to spread fear with the intention to influence (a part of) a population or a government.101 Both the objectives that terrorist pursue and the methods that they use are seen as unacceptable. Kilcullen defines terrorism therefore mainly as an issue of law enforcement.102 Counterterrorism follows a kill-capture strategy meaning that all terrorists are plainly killed or captured, unlike the win-the-population strategy of COIN operations.103 A clear distinction between an insurgency and terrorism can however not be made. Terrorism is a feature of almost every insurgency, while those objectives inherent to an insurgent, such as wanting to change the status quo through the use of force, can often be observed behind non- State terrorism.104

2.5. Conclusion

The objectives and methods of COIN operations differ greatly from conventional warfare. Although COIN is not new, it has gained a lot more attention this century. We have seen that COIN has adapted over time and has changed its responses due to shifts within insurgencies. This chapter has drawn a distinction between classical COIN and contemporary COIN. It has explained the rise of classical COIN as “wars of national liberation” and its basic principles such as phrased by French military officer Galula. In addition, the two schools of thought existing within the contemporary COIN doctrine, videlicet the neo-classical school and the global insurgency school, illustrate the distinctive threats of modern-day insurgencies.

101 Saul 2008, pp. 65-66. 102 Kilcullen 2005, p. 605. 103 Sitaraman 2013, p. 23. 104 Kilcullen 2010, p. 184.

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“AS LONG AS THE RULES OF THE GAME ARE OBSERVED, IT IS

PERMISSIBLE TO CAUSE SUFFERING, DEPRIVATION

OF FREEDOM, AND DEATH.”

~ T. Meron 105 ~

105 Meron 2000, p. 240.

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3. THE LEGAL PARADIGMS

3.1. Introduction

International law traditionally distinguishes two separate legal paradigms when it comes to the use of force: the paradigm of law enforcement and the paradigm of the conduct of hostilities. Because these paradigms are derived from IHRL and IHL, this chapter will start with a brief description of the said frameworks. Subsequently, the two paradigms designed to govern the use of force will be discussed profoundly, their main differences will be elucidated and the primary parameters regarding the applicability of the paradigms will be determined. This chapter finally maps the interplay between the paradigms in various situations of the use of force in armed conflicts.

3.2. IHRL and IHL

The frameworks of IHL and IHRL have both been established for humanitarian reasons and some of their objectives are similar, such as the protection of the life, health and dignity of individuals. It is generally acknowledged that the two legal regimes are complementary to each other, even though their scope of application differs. Human rights are rights that belong to every person or a group of persons as a simple consequence of being human. Its sources consist out of customary law and treaties, including the 1948 Universal Declaration of Human Rights (hereinafter: UDHR), the 1966 International Covenant on Civil and Political Rights and on Economic, Social and Cultural Rights (hereinafter: ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (hereinafter: ICESCR).106 The rules and principles of IHRL are only binding upon States and apply in both peacetime and in situations of armed conflict. IHRL therefore constitutes the lex

106 Other core human rights treaties are the International convention on the Elimination of all Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against Woman (1979), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Convention on the Rights of the Child (1989), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), the International Convention for the Protection of All Persons from Enforced Disappearance (2006) and the Convention on the Rights of Persons with Disabilities (2006).

P a g e | 30 generalis.107 States may however derogate from their obligations under IHRL treaties “in time of war or other public emergency threatening the life of the nation”,108 with the exception of non- derogable rights.109 IHL, on the other hand, aims to restrain the grave consequences arising from both an international armed conflict (hereinafter: IAC) and a non-international armed conflict (hereinafter: NIAC).110 It is thus the existence of an armed conflict that triggers the application of IHL, which makes IHL the lex specialis.111 All actors, both State and non-State, involved in the conflict are bound by its rules, in contrast to IHRL which only binds States. IHL seeks to solve humanitarian problems by offering protection to those who are no longer taking part in the conflict and restricting the means and methods of warfare. It deals with issues such as the conduct of hostilities, prisoners of war and the status of combatants and civilians.112 The principal treaty sources applicable to IACs are the four 1949 Geneva Conventions and the 1977 Additional Protocol I (hereinafter: API). The principal treaty sources applicable to NIACs are Article 3 common to the four Geneva Conventions and the 1977 Additional Protocol II (hereinafter: APII).113 Norms of IHL governing attacks in IACs and NIACs have become almost indistinguishable due to customary international law.114

3.3. The two legal paradigms

Parties to contemporary conflicts are often called upon to adhere to standards of both law enforcement and the conduct of hostilities. Considering the different legal standards governing the two separate paradigms, clarification is imperative.115 This paragraph will therefore provide

107 ICRC 2011-I, p. 14. 108 ECHR, Article 15(1). 109 ICRC 2003; Examples of non-derogable rights are the right to life, not including the deaths following from lawful acts of warfare, and the prohibition of torture: see Articles 2, 3 and 15 of the ECHR. 110 ICRC 2003. 111 ICRC 2011-I, p. 14. 112 ICRC 2003. 113 Ibid. 114 Schmitt 2009-II, p. 308; Henckaerts & Doswald-Becks 2005. 115 Melzer 2015, p. 63.

P a g e | 31 for a thorough explanation of first the paradigm of law enforcement and subsequently the paradigm of the conduct of hostilities.

3.3.1. The legal paradigm of law enforcement The legal paradigm of law enforcement is formed by the whole of rules and principles of IHRL, IHL and general international law regulating the conduct and lawfulness of law enforcement activities.116 Its legal standards are primarily derived from IHRL117 and have been drafted with the aim of protecting individuals from abuse by the government. Although international law does not explicitly define the concept of law enforcement, various soft law instruments have assisted in its interpretation.118 The UN Code of Conduct for Law Enforcement Officials (hereinafter: CCLEO) explains the term “law enforcement officials” as all officers of the law exercising police power and in particular the powers of arrest or detention.119 The European Union (hereinafter: EU) defines the duty of law enforcement authorities as the enforcement of the established law of the State, including assuring “a general condition of public tranquillity”.120 Serving the members of the community and protecting people against unlawful acts belong to their core tasks.121 The rules and principles governing law enforcement essentially aim to provide guidance in the use of force by State agents and the maintenance of law and order. 122 They seek to retain the equilibrium between the common interest in maintaining public security, law and order and the conflicting interest of safeguarding the rights and freedoms of individuals.123 The right to life is the human right affected most directly when law enforcement officials make use of lethal weapons.124 It is protected in human rights treaties 125 as well as under customary law.126 Article 6 of the ICCPR gives the right to life a unique status, as it is qualifies it

116 Melzer 2008, p. 89. 117 Melzer 2015, p. 69. 118 Ibid., p. 69; see inter alia the UN Code of Conduct for law Enforcement Officials, The European Code of Police Ethics and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. 119 Commentary under (a) to Article 1 CCLEO. 120 The European Code of Police Ethics 2001, para. 16. 121 Melzer 2015, p. 64. 122 Gaggioli 2013, p. 7. 123 Melzer 2008, p. 89. 124 Aviv Yeini 2019, pp. 471-472. 125 See Article 6 ICCPR, Article 3 UDHR, Article 4 American Convention on Human Rights, Article 2 ECHR, Article 4 African Charter on Human and Peoples’ Rights. 126 Gaggioli 2013, p. 4.

P a g e | 32 as inherent.127 According to the UN Human Rights Committee, the use of potentially lethal force is an extreme measure, only allowed as a strictly necessary reaction to an imminent threat of death or severe injury.128 In the same vein, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (hereinafter: BPUFF) explain the use of lethal force as a measure of last resort to protect life, when other means are inadequate for achieving the intended objectives.129 In sum, the legal paradigm of law enforcement regulates the vertical relationship between the State and its citizens and is primarily designed to protect human life to the greatest extent feasible.

3.3.2. The legal paradigm of the conduct of hostilities The legal paradigm of the conduct of hostilities is primarily governed by the framework of IHL.130 Although IHRL generally continues to apply during armed conflict, its role during the conduct of hostilities is confined as IHL often prevails as the lex specialis.131 IHL is grounded on a delicate equipoise between the two opposing forces of military necessity and humanitarian considerations. If military necessity would be the mere guiding force, there would be no restraint on the right of the parties to choose the means and methods of warfare.132 On the contrary, if humanitarian considerations were to be the only driving force, then war could not be called war.133 The challenging task of shaping the norms of IHL has been eloquently phrased by the 1868 Saint Petersburg Declaration as fixing “the technical limits at which the necessities of war ought to yield to the requirements of humanity”.134 Calamities of war must be alleviated as much as possible, bearing in mind that absolute mitigation is not feasible during hostilities.135

127 ICCPR, Article 6. 128 Human Rights Committee 2018, para. 12. 129 BPUFF, Provision 9. The BPUFF was adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, 27 August to 7 September 1990. It was welcomed by the UN General Assembly in Resolution 45/166 in 1990. 130 Melzer 2015, p. 74. 131 The role of IHRL during the conduct of hostilities is discussed more in depth in paragraph 3.5. 132 Dinstein 2004, p. 16; API, Article 35. 133 Dinstein 2004, p. 16. 134 International Military Commission, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight (Saint Petersburg, 11 December 1868). 135 Dinstein 2004, p. 17.

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The prohibition of unnecessary suffering and the rules of distinction are the two most pivotal principles limiting the means and methods of warfare136 and have become norms of customary international law. 137 The prohibition of unnecessary suffering implies that it is forbidden to employ means and methods of warfare that “are of a nature to cause superfluous injury or unnecessary suffering”.138 The rules of distinction distinguish between combatants and civilians and between military objects and civilians objects, as civilians and civilian objects cannot be the object of attack.139 The status of combatant is however not formally recognized by IHL in NIACs, as States do not want insurgents to enjoy any benefits attached to the combatant status, such as protection from prosecution for having taken part in hostilities.140 To uphold the principle of distinction during NIACs, the distinction is made between members of non-State armed forces (referred to as ‘fighters’ in this study) and members of State armed forces on the one hand and civilians on the other hand.141 Although such rules limit the use of force fairly, the legal paradigm of the conduct of hostilities still offers far less protection to human life than the law enforcement paradigm.

3.3.3. The primary differences While both the law enforcement paradigm and the conduct of hostilities paradigm govern the use of force, its principles function in different ways. The principal differences between the two paradigms can be encountered within the principles of necessity, proportionality and precaution, which will sequentially be discussed in this paragraph.142 It is important to point out that this study follows the view of the ICRC, which regards the following principles as international customary law applicable to both IACs and NIACs.143

136 Aviv Yeini 2019, p. 470. 137 Henckaerts & Doswald-Becks 2005, pp. 3-237. 138 Ibid., p. 237. 139 Article 51(2) and 52(2) Additional Protocol I. 140 Doswald-Beck 2006, p. 889. 141 Sassòli & Olson 2008, p. 606. 142 Gaggioli 2013, p. 8. 143 Melzer 2009.

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3.3.3.1. The principle of necessity The principle of necessity under the law enforcement paradigm entails that law enforcement officials may only resort to the use of force when it is “strictly necessary”.144 The use of force must therefore be regarded as an exceptional situation.145 Law enforcement officials should only use force as a measure of last resort and need to apply non-violent means as far as possible in order to ensure compliance. 146 Furthermore, Article 3 of the CCLEO specifies that law enforcement officials may only use force “to the extent required for the performance of their duty”.147 Each use of force hence needs a legitimate aim.148 The commentary to the said article indicates that it must be “reasonably necessary under the circumstances” of preventing a crime or effecting or assisting in the lawful arrest of criminals or suspects. The EU similarly expressed that the use of force may only be used by law enforcement officials “when strictly necessary and only to the extent required to obtain a legitimate objective”.149 On the contrary, under the conduct of hostilities paradigm it is the presupposition that the use of force against lawful targets is a military necessity. Stated differently, it is presumed that combatants may in principle be the object of a lawful attack for as long as they are taking part in the conflict.150

3.3.3.2. The principle of proportionality Within both paradigms a balancing test is required by the proportionality principle.151 When law enforcement officials use force under the law enforcement paradigm, the proportionality principle indicates the need to strike a balance between the danger posed by the (suspected) offender and the potential harm that could be inflicted on this or any other person. The use of (potentially) lethal force can for instance not be considered as proportionate when it is used against a person who cannot be regarded as an imminent threat of death or severe injury.152 The

144 CCLEO, Article 3. 145 CCLEO, Commentary (a) under Article 3. 146 BPUFF, Provision 4; Casey-Maslen 2016, pp. 6-7. 147 CCLEO, Article 3. 148 Casey-Maslen 2016, p. 7. 149 The European Code of Police Ethics 2001, para. 37. 150 Gaggioli 2013, p. 8. 151 Lubell 2005, p. 475. 152 Gaggioli 2013, p. 8.

P a g e | 35 proportionality principle determines the maximum amount of force than can be used to obtain a concrete legal objective and thus indicates when the escalation of force necessary for reaching the objective must be stopped.153 By contrast, under the conduct of hostilities paradigm an attack against a lawful target is prohibited if this attack “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.154 The focus of the proportionality principle lies upon the surrounding civilian and civilian objects, instead of on the targeted individual as is the case with law enforcement.155 Moreover, the use of force is only prohibited under the conduct of hostilities paradigm where the potential harm to civilians or damage to civilian objects caused by an attack would be “excessive”, whereas law enforcement officials must avoid harming surrounding people as far as possible.156 This essentially means the human life is more heavily weighted under the law enforcement paradigm.

3.3.3.3. The principle of precaution Under the law enforcement paradigm every operation must be planned, prepared and conducted in a way that the use of force is reduced as much as possible.157 The Special Rapporteur on extrajudicial, summary or arbitrary executions has emphasized the importance of the precaution principle as follows:

Once a situation arises where the use of force is considered, it is often too late to rescue the situation. Instead, in order to save lives, all possible measures should be taken ‘upstream’ to avoid situations where the decision on whether to pull the trigger arises, or to ensure that all the possible steps have been taken to ensure that if that happens, the damage is contained as much as is possible.158

153 Heyns 2014, para. 66. 154 Henckaerts & Doswald-Beck 2005, p. 46. 155 Lubell 2005, p. 475. 156 Gaggioli 2013, p. 9. 157 Melzer 2015, p. 70. 158 Heyns 2014, para. 63.

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The precaution principle under the conduct of hostilities paradigm entails that the armed forces must constantly be concerned with sparing civilians and civilian objects.159 The scope of the principle is evidently far narrower than under the law enforcement paradigm. This paradigm requires all precautions to be taken to prevent the use of force as such, and not only civilian casualties and damage to civilian objects.160

3.4. Determining the parameters

This paragraph identifies the main factors that may be used to draw a dividing line between the two legal paradigms as international law lacks serious clarity on the parallel applicability.161 The factors discussed regard the status, function or conduct of the potential target and the degree of control and intensity of the violence. Recourse is made to the report of the ICRC containing a summery and analysis of debates that took place during an ICRC expert meeting regarding the use of force.162

3.4.1. Status, function or conduct From an IHL perspective, a person is a legitimate target if he or she can be considered as: 1) A member of the armed forces of a party to the conflict and thus a combatant,163 or a participant in a levée en masse in an IAC;164 2) A member of a regular State armed force or a member of an organized non-State armed force (also called a fighter) in a NIAC;165 or 3) A civilian taking direct part in hostilities in an IAC or NIAC.166

159 API, Article 57(1). 160 Melzer 2015, p. 78. 161 Melzer 2008, p. 243. 162 Gaggioli 2013. Five practical case studies were discussed during the expert meeting: use of force against legitimate targets in armed conflicts; riots during armed conflicts; fight against criminality; escape attempts and rioting detainees; ignoring military orders. 163 API, Article 50(1) and Article 42; Medical personnel and chaplains are not considered as combatants. See API, Article 43(2). 164 Participants in a levée en mas are not civilians, but can also not be considered as members of an armed force due to their spontaneous actions and insufficient degree of organization and command: see Melzer 2009, p. 25. 165 Gaggioli 2013, p. 14. 166 Ibid., p. 14; API, Article 51(3); Common Article 3(1) of the Geneva Conventions of 1949.

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The ICRC expert meeting revealed that for numerous experts “the main (if not the only) legal criterion for determining whether a situation is covered by the conduct of hostilities or law enforcement paradigms is the status, function or conduct of the person against whom force may be used”.167 This implies that when combatants or fighters encounter individuals constituting legitimate targets under IHL, the prevailing paradigm governing the attack would generally be the conduct of hostilities. Members of armed forces may in principle always be considered as a legitimate target, with the exception of those rendered hors de combat.168 Civilians may however only be targeted during the time of their direct participation.169 Due to hardship in distinguishing members of non-State armed forces from civilians in NIACs, the ICRC’s interpretive guidance on direct participation in hostilities has held that only persons “whose continuous combat function it is to take a direct part in hostilities” may be treated as members of such forces. 170 The continuous combat function (hereinafter: CCF) concept implies “preparation, execution, or command of acts or operations amounting to direct participation in hostilities”.171 The notion of CCF is however flawed as correctly noted by de Cock. It protects members exercising a non-combatant function, such as cooks, from being targeted, while members of State-armed forces performing a similar function do not enjoy the same protection.172 CCF could be a helpful criteria for identifying a legitimate target, but it cannot be stated that members who do not perform a non-combatant function are no legitimate targets. It is therefore significant to emphasize the fact that CCF is not a legal criteria. It must however be acknowledged that it is not always evident what the status, function or conduct of the potential target is. IHL provides the rule that when there is doubt on the civilian status of a person, he or she must be considered a civilian.173 Moreover, the ICRC guidance recommends that before and during any attack, all feasible measures must be taken to determine

167 Gaggioli 2013, p. 59. 168 Ibid., p. 14; Persons hors de combat are those who are in the power of the adversary, who clearly expressed the intention to surrender or who are defenceless for being unconscious or incapacitated in any other way by wounds or sickness. See API, Article 41(2). 169 Gaggioli 2013, pp. 13-14; 170 Melzer 2009, p. 27-34. 171 Ibid., p. 34. 172 De Cock 2010, p. 118. 173 API, Article 50(1).

P a g e | 38 whether the targeted person is a civilian and if that is the case, if that civilian is taking direct part in the hostilities. In situations of doubt, the presumption must be that that person enjoys protection against direct attack.174 As it is prohibited to attack civilians directly under IHL, the application of the law enforcement paradigm seems to be plausible, meaning that the use of (potential) lethal force is only accepted as a measure of last resort and an escalation of force procedure is to be followed.175 Some experts are of the opinion that the escalation of force procedure derives from the conduct of hostilities paradigm and view the said procedure as a feasible manner for determining the legitimacy of a possible target.176 This is however a peculiar perspective as civilians, not taking direct part in hostilities, cannot be targeted under the conduct of hostilities paradigm and a person must be considered to be a civilian for as long as there is doubt.

3.4.2. Degree of control and intensity of violence During the ICRC meeting the “degree of control” and “intensity of violence” were also discussed as potential factors for determining the applicable paradigm. The underlying thought was that the paradigm of hostilities would govern the use of force against legitimate targets exercised in situations of active hostilities. Moreover, the said paradigm would only prevail in situations where the intensity of violence is high while there is a lacking degree of control over the area and circumstances. This entails that the application of the law enforcement paradigm would become more plausible when the degree of control over the relevant region and the circumstances increases and when the intensity of violence decreases.177 Most experts however condemned these factors as being to context-dependent and it was emphasized that determining the degree of control can be very challenging.178 Sassòli and Olson explain that a sufficient degree of control is present when the State is able to capture a suspect, without having to be “overly concerned” for a possible intervention by other fighters in the area (such as portrayed in case of Suarez de

174 Melzer 2009, p. 74. 175 Melzer 2015, p. 85. 176 Gaggioli 2013, p. 41. 177 Ibid., pp. 18-19. 178 Ibid., p. 22.

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Guerrero v. Colombia which will be discussed in paragraph 3.5.1.).179 They continue that when there is no clear control by one of the armed forces, the more likely it is that the target constitutes a fighter and the more pertinent the conduct of hostilities paradigm becomes.180 It therefore seems plausible to state that the degree of control and intensity of violence could be useful criteria when they can be determined in the specific context. This entails that they may be used as complementary parameters for identifying the applicable paradigm.

3.5. The synergy between the legal paradigms

A lack of clarity on the applicable rules in ambiguous situations is undesirable and above all dangerous as the rules have to be applied in the field and lead to immutable consequences. This paragraph therefore exposes existing synergies between the legal paradigms in different situations.

3.5.1. Law enforcement as the default applicable paradigm The law enforcement paradigm governs the use of force in all situations where State agents interact with the community.181 It also applies during an armed conflict when there are no active hostilities, for instance during a ceasefire and during periods of calm or occupation. The rules of law enforcement even remain applicable during active hostilities governing, for instance, situations where forces interact with civilians. Also in cases of violent disorder, such as violent riots, the paradigm continuous to apply.182 Military operations conducted for reasons linked to an armed conflict are thus not necessarily regulated by the rules and principles of the conduct of hostilities paradigm. Certain parts of IHL do not govern the legal paradigm of hostilities, but rather regulate classical situations of law enforcement, such as the exercise of authority or power over people, objects or territory.183 Article 43 of the 1907 Hague Convention IV for instance requires the occupying power to “take all the measures in his power to restore, and ensure […]

179 Sassòli & Olson 2008, p. 614; HRC 31 March 1982, Communication No. 45/1979, UN Doc. CCPR/C/15/D/45/1979 (Guerrero v. Colombia). 180 Sassòli & Olson 2008, p. 614. 181 Human Rights Council 2019, para. 84. 182 Ibid., paras. 84-85. 183 Melzer 2015, pp. 75-76.

P a g e | 40 public order and safety”.184 According to Melzer, relevant IHRL complements and strengthens those parts of IHL governing the exercise of authority or power outside the legal paradigm of the conduct of hostilities. As mentioned before, IHRL only binds States, while IHL creates obligations for both State and non-State actors. Melzer consequently argues that non-State actors must adhere to the paradigm of law enforcement insofar as they have established de facto authorities or powers over people, objects or territory, on grounds connected to an armed conflict. These obligations for non-State actors may however only be derived from IHL.185 An example of the application of law enforcement as the default paradigm can be found in the case of Suarez de Guerrero v. Colombia.186 In this case, law enforcement officers had raided a house in the belief that an official was being held prisoner there. Because both the official and the alleged insurgents were not encountered in the house, the officers chose to hide and await the return of the insurgents. When the insurgents entered the house, they were all shot and killed by the law enforcement officials.187 The applicable paradigm is debatable as it could be argued that the insurgents are to be considered as legitimate military targets under the conduct of hostilities paradigm.188 It seems however more plausible, based on the analysis made above, that the law enforcement paradigm applies. The law enforcement officials were in sufficient control, which indicates the absence of active hostilities. Arresting the alleged insurgents was hence certainly possible. This was also the view of the Human Rights Council (hereinafter: HRC), which applied the said paradigm to the force used.189 Overall, the law enforcement paradigm continues to apply during armed conflict when there are no active hostilities, as seen in the case of Suarez de Guerrero v. Colombia, and when it concerns the direct use of force against civilians.

184 International Peace Conference, Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (The Hague, 18 October 1907), Article 43. 185 Melzer 2015, p. 76. 186HRC 31 March 1982, Communication No. 45/1979, UN Doc. CCPR/C/15/D/45/1979 (Guerrero v. Colombia); This case took place in the context of a non-international armed conflict in Colombia. 187 HRC 31 March 1982, Communication No. 45/1979, UN Doc. CCPR/C/15/D/45/1979 (Guerrero v. Colombia), paras. 11.3-11.4. 188 Pouw 2013, p. 343. 189 HRC 31 March 1982, Communication No. 45/1979, UN Doc. CCPR/C/15/D/45/1979 (Guerrero v. Colombia), paras. 13.2-13.3. The HRC found the right to life to have been violated by the State. It stated that the insurgents had not been given any opportunity to surrender themselves and that no legitimate law enforcement objective was pursued by the use of force since the principle of necessity was not fulfilled.

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3.5.2. The conduct of hostilities as the prevailing paradigm The interplay between the paradigms of law enforcement and the conduct of hostilities is controlled by the lex specialis. This adage entails that when belligerents conduct hostilities within an armed conflict, the legal paradigm of the conduct of hostilities prevails over the law enforcement paradigm. Law enforcement objectives may be met through the conduct of hostilities, for example when a domestic insurgency is suppressed or defeated. Military operations as such may concurrently be qualified as law enforcement operations.190 But because of the lex specialis principles, the lawfulness will be determined under the legal paradigm of the conduct of hostilities. It is in such situations not relevant whether the parties ultimately seek to restore or preserve public security, law and order. 191 The International Court of Justice (hereinafter: ICJ) has analyzed the interplay between IHL and section 1 of Article 6 ICCPR in its Advisory Opinion on Nuclear Weapons.192 The article stipulates that “no one shall be arbitrarily deprived of his life”. 193 The standing of lex specialis was phrased by the ICJ as follows:

In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.194

In other words, it is IHL that constitutes the lex specialis in situations of armed conflict and governs acts amounting in arbitrary deprivations of life.195 The status of IHL as the lex specialis was reaffirmed by the ICJ in its Advisory Opinion on the Wall in a situation of belligerent occupation.196 When IHL provides for a rule designed for the situation it supersedes IHRL, which

190 Melzer 2008, p. 89. 191 Melzer 2015, p. 77. 192 ICJ 8 July 1996, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports 1996. 193 ICCPR, Article 6(1). 194 ICJ 8 July 1996, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports 1996, para. 25. 195 Dinstein 2009, p. 86. 196 ICJ 18 August 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Reports 2004, para. 106.

P a g e | 42 makes the role of IHRL very limited with regard to the conduct of hostilities. It is only where the framework of IHL does not provide for a special rule and when reference to the general principles of IHL does not offer sufficient guidance that recourse may be made to IHRL as the lex generalis.197

3.6. Conclusion

This chapter has closely examined the legal paradigms of law enforcement and the conduct of hostilities in order to gain understanding of the interplay between the said paradigms. It has analyzed the main differences encountered within the principles of distinction, necessity, proportionality and precaution. Table 1 provides for a clear overview of these findings.

Law Enforcement Conduct of hostilities Distinction This principle does not apply here. Direct attacks are only allowed against combatants, fighters or military objects. Attacks cannot be directed against civilians and civilian objects. Necessity Only when it is absolutely essential and solely Military necessity: combatants may be the so far as it is necessary to fulfill a legitimate object of a lawful attack for as long as they objective.198 are taking part in the conflict.199 Proportionality A balance must be struck between the danger An attack is prohibited if it is “expected to posed by the (suspected) offender and the cause incidental loss of civilian life, injury to potential harm that could be inflicted on the civilians, damage to civilian objects, or a offender or a bystander.200 combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. 201 Precaution Every operation must be planned, prepared Armed forces must constantly be concerned and conducted to diminish the use of force to with sparing civilians and civilian objects.203 the greatest extent possible.202 Table 1 When it comes to determining the applicable paradigm, one must bear in mind that combatants must make split-second decisions. It is therefore necessary for targeting rules to be plain and

197 Melzer 2008, p. 382. 198 CCLEO, Article 3; The European Code of Police Ethics 2001, para. 37. 199 Gaggioli 2013, p. 8. 200 Ibid., p. 8. 201 Henckaerts & Doswald-Beck 2005, p. 46. 202 Melzer 2015, p. 78. 203 Ibid., p. 70.

P a g e | 43 simple.204 The “status, function or conduct” of the potential target have been identified as the main criteria for determining whether a person may be targeted under to conduct of hostilities paradigm. Legitimate targets are thus combatants (status), so called ‘fighters’ (function) and civilians directly participating in hostilities (conduct). In addition, the degree of control and intensity of the violence have been identified as complementary parameters as they are very context-specific and might be difficult to assess. Finally, this chapter has critically examined the interplay as such between the legal paradigms. It may be concluded that the legal paradigm of law enforcement applies as the default paradigm, while the legal paradigm of the conduct of hostilities takes precedence when one of its rules is applicable to the situation. More specifically, the law enforcement paradigm governs situations where there is a lack of active hostilities and where armed forces are faced with persons who cannot be defined as legitimate targets. The conduct of hostilities paradigm functions as the lex specialis when the use of force is directed against a legitimate military target.

204 Gaggioli 2013, p. 23.

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“WE WILL NOT WIN BASED ON THE NUMBER OF TALIBAN WE KILL […] WE MUST RESPECT AND PROTECT THE POPULATION FROM COERCION AND VIOLENCE – AND OPERATE IN A MANNER WHICH WILL WIN THEIR SUPPORT.”

~ ISAF Commander General S.A. McChrystal 205 ~

.

205 General S.A. McChrystal, Tactical Directive NATO/ISAF, 6 July 2009.

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4. ISAF AND THE USE OF FORCE

4.1. Introduction

The conflict in Afghanistan has raised numerous debates on the application of the legal paradigm of the conduct of hostilities ensuing from the rules of IHL. ISAF forces faced various operational and legal challenges, such as a blurring distinction between fighters and civilians. As ISAF constituted a COIN, the winning of the hearts and minds of the Afghan population was a crucial part of the operation. Civilian casualties were consequently avoided as much as possible, which affected the manner in which the principles of proportionality and distinction operated. Moreover, the overlap between the paradigms of law enforcement and the conduct of hostilities became apparent in various situations due to the fact that insurgents are usually both combatants and criminals under domestic legislation. 206 A straightforward answer on the applicable paradigm will however be difficult to provide. In conjunction with ISAF policy and Rules of Engagement (hereinafter: ROE), 207 all 50 participating States applied their own national caveats,208 taking account of both domestic legislation and their obligations under international law.209 This chapter will nevertheless provide a meticulous analysis of the discussion about the applicable paradigm against the backdrop of the COIN war fought in Afghanistan, starting with a brief explanation of the conflict and the mission of ISAF.

4.2. ISAF and the conflict in Afghanistan

The conflict in Afghanistan started on 7 October 2001 with the U.S. intervention as part of Operation Enduring Freedom (hereinafter: OEF). Because the Taliban represented the de facto

206 Gaggioli 2013, p. iii. 207 ROE are internal rules or directives issued by military authority to limit the use of force. ROE also include national caveats and national amplifications: see Ducheine and Pouw 2010, p. 37. Their legal status variates among States. Some States regard ROE as a guidance to military forces, while other States regard them as lawful commands: see Cole et al. 2009, p. 1. 208 National caveats are restrictions placed by NATO members on the use of their troops. Examples are not conducting operations at night or not taking part in counter-narcotics operations. See Gaggioli 2013, p. 85 (footnote 1). 209 Gaggioli 2013, p. 85.

P a g e | 46 government of Afghanistan, the conflict can be defined as an IAC.210 After the decline of the Taliban rule and the establishment of the Afghan Transitional Administration on the 19th of June 2002, the IAC seized to exist. A NIAC subsequently emerged between the newly formed Afghan government, with the support of OEF and ISAF, and the enemy forces.211 This case study will only focus on ISAF as it directed a SUPPCOIN212 operation against the armed opposition, while OEF directed a counterterrorism operation.213 ISAF was a NATO-led security mission, mandated in December 2001 by the UN Security Council (hereinafter: UNSC)214 in accordance with the Bonn Agreement.215 ISAF was allowed to use force in order to fulfill its task in Afghanistan as it was an operation authorized by the UNSC under Chapter VII of the UN Charter.216 It was at first authorized “to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas”,217 but this mandate was broadened by subsequent UNSC resolutions that eventually expanded the mission over the whole country. 218 With regard to the use force the broad mandate “to take all necessary measures” was given.219 ISAF divided this mandate into key military tasks and key supporting tasks in a campaign plan.220 The role of ISAF includes the tasks illustrated in table 2.

210 Geiβ & Siegrist 2011, p. 14. 211 Ibid., p. 15. 212 See paragraph 2.3.3. 213 Cock 2011, p. 113. 214 Resolution 1386 of the UNSC (20 December 2001), UN Doc. S/RES/1386 (2001). 215 Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions (Bonn, 5 December 2001), UN Doc. S/2001/1154.; The ISAF mission was disbanded at the end of 2014: see https://www.nato.int/cps/en/natohq/topics_69366.htm, last accessed on 9 October 2019. 216 Resolution 1386 of the UNSC (20 December 2001), UN Doc. S/RES/1386 (2001). 217 Resolution 1386 of the UNSC (20 December 2001), UN Doc. S/RES/1386 (2001). 218 Resolution 1386 of the UNSC (20 December 2001), UN Doc. S/RES/1386 (2001); Resolution 1413 of the UNSC (23 May 2002), UN Doc. S/RES/1413 (2002); Resolution 1444 of the UNSC (27 November 2002), UN Doc. S/RES/1444 (2002); Resolution 1510 of the UNSC (13 October 2003), UN Doc. S/RES/1510 (2003); Resolution 1563 of the UNSC (17 September 2004), UN Doc. S/RES/1563 (2004); Resolution 1623 of the UNSC (13 September 2005), UN Doc. S/RES/1623 (2005); Resolution 1707 of the UNSC (12 September 2006), UN Doc. S/RES/1707 (2006); Resolution 1776 of the UNSC (19 September 2007), UN Doc. S/RES/1776 (2007); Resolution 1822 of the UNSC (22 September 2008), UN Doc. S/RES/1822 (2008). 219 Resolution 1707 of the UNSC (12 September 2006), UN Doc. S/RES/1707 (2006). 220 Ducheine 2008, p. 332.

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Table 2 221

The ROE in conjunction with the mandate and tasks, limits the use of force legitimized by the UNSC, videlicet “all necessary means”.222 The first Tactical Directive merging COIN with human rights norms in Afghanistan was issued by ISAF commander McKiernan in 2008.223 The directive ordered respect for the Afghan people, their culture, religion and customs. It restricted the searches and entries of houses and religious buildings, mandated the training of forces to reduce civilian casualties during escalation of force engagements and demanded investigations of incidents that might have caused civilian casualties.224 McKiernan’s successor, McChrystal, issued an even more restrictive Tactical Directive in 2009, which expressed excessive damages and civilian casualties as “strategic defeats”.225 The following ISAF commander, Petraeus, stated in his 2010 Tactical Directive that “prior to the use of fires, the commander approving the strike must determine that no civilians are present”.226

221 NATO Press Release 8 December 2005; https://reliefweb.int/report/afghanistan/revised-operational-plan-nato- s-expanding-mission-afghanistan, last accessed on 9 October 2019. 222 Ducheine & Pouw 2010, p. 37. 223 General D.D. McKiernan, Tactical Directive NATO/ISAF, 30 December 2008; Pedden 2012, p. 821. 224 General D.D. McKiernan, Tactical Directive NATO/ISAF, 30 December 2008; 225 General S.A. McChrystal, Tactical Directive NATO/ISAF, 6 July 2009. 226 General D.H. Petraeus, Tactical Directive NATO/ISAF, 1 August 2010.

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4.3. The principle of distinction

One of the obstacles encountered by ISAF forces in Afghanistan was the difficulty in distinguishing insurgents from civilians and military objectives from civilian objects.227 In addition, the win-the- population strategy, crucial in COIN operations, required as few civilian casualties as possible. The principle of distinction was hence placed under heavy pressure. This is tragically demonstrated by the 2009 Kunduz airstrike where a German officer ordered an air strike on two fuel tankers, which had been stolen by Taliban insurgents.228 The attack resulted in the death of at least 91 persons, among which also civilians.229 This paragraph will consecutively discuss the distinction between insurgents and civilians, the use of civilian objects by insurgents and the use of minimum force.

4.3.1. Distinguishing insurgents from the civilian population The 2010 Layha for the Mujahideen, the code of conduct for the Taliban fighters under Islamic law, contains the following phrase:

The Mujahids should adapt their physical appearance such as hairstyle, clothes, and shoes in the frame of Sharia and according to the common people of the area. On one hand, the Mujahids and local people will benefit from this in terms of security, and on another hand, will allow Mujahids to move easily in different directions.230

Moreover, the carrying of weapons is a cultural feature of the Afghan population and may therefore not be seen as a sign of direct participation.231 Status based targeting is therefore not always feasible in COIN operations, meaning that there is need for other criteria. ISAF forces used the commission of hostile acts or the demonstration of hostile intents as additional criteria for engaging those whose status cannot be deduced from their appearance.232 The U.S. view said notions as triggers for self-defense, whereas European countries consider them as ROE

227 De Cock 2010, p. 120; Geiβ & Siegrist 2011, p. 21. 228 Landgericht Bonn 11 December 2013, 1 O 460/11 (The Prosecutor v. Colonel Georg Klein), paras. 10-16. 229 Landgericht Bonn 11 December 2013, 1 O 460/11 (The Prosecutor v. Colonel Georg Klein), para. 16; See http://www.internationalcrimesdatabase.org/Case/1035/Klein/, last accessed on 14 October 2019. 230 ICRC 2011-II, p. 119. 231 Geiβ & Siegrist 2011, p. 23. 232 Gaston 2017; De Cock 2010, p. 120.

P a g e | 49 authorizations.233 The definitions of hostile acts and hostile intents are not clear-cut. A hostile act is described by the NATO ROE as “any intentional act causing serious prejudice or posing a serious danger to NATO/NATO-led forces or designated forces or personnel”. Examples of such acts include laying mines or improvised explosive devices (hereinafter: IED’s) and breaching NATO secure areas. A hostile intent is defined by the NATO ROE as “a likely and identifiable threat” that may be recognized from the “capability and preparedness” of those posing a threat of causing damage, and evidence indicating intent to attack or inflict damage in another way.234 Speeding towards a checkpoint while not stopping when ordered and performance of suspicious conduct, such as digging in the proximity of ISAF likely routes, are examples of hostile intent.235 The interpretation of hostile intent seemed to be difficult in practice, at least for U.S. troops, and caused multiple civilian casualties due to misinterpretations. 236 For example, digging in the ground during night was sometimes misinterpreted for placing IED’s, while working during the cooler night is simply preferred by Afghan people.237 Accurate determination of a hostile intent hence proofs to be a serious challenge and needs development.238 While taking that in account, this study supports the commission of hostile acts and the demonstration of hostile intents as supplementing criterion for determining the applicable paradigm with regard to the use of force.

4.3.2. Insurgents and the use of civilian objects Insurgents often fight within populated areas and consequently resort to the use of civilian objects for various purposes. 239 For instance, they frequently use Afghan houses, so called quala’s, as a place to hide or store weapons and munition, a workplace for the assembling of IED’s, a place to rest and recover or as a basis for launching attacks.240 When a civilian object meets all of the criteria specified in Article 52(2) AP I, it may be considered as a military

233 Gaston 2017, p. 20. 234 NATO 2010, p. 255. 235 Lewis 2013, p. 10. 236 Docherty et al. 2016, p. 1. 237 Muhammedally 2017, p. 237. 238 Docherty et al. 2016, p. 1. 239 Geiβ & Siegrist 2011, p. 26; Ducheine & Pouw 2010, p. 108. 240 Ducheine & Pouw 2010, p. 108;

P a g e | 50 objective.241 The concerning object must effectively contribute to military activities through its “nature, location, purpose or use” and its “total or partial destruction, capture or neutralization, in the circumstances ruling at the time” must provide for a clear military advantage.242 With regard to the Kunduz incident, mentioned above, a compensation claim was filed by two survivors to the Regional Court of Bonn. The claim was dismissed by the Regional Court as it ruled that the German commander had adhered to the principle of distinction when he defined the fuel tankers as military objects. The tankers could be used either as fuel stock for the logistical support of the Taliban or as a means of war itself when used in an attack.243 According to internal intelligence, they would indeed have been used to ambush an Afghan police station in Kunduz.244 Ducheine and Pouw assert that fulfillment of the criteria inscribed in Article 52(2) API do not pose an obstacle generally speaking.245 The scope of the notion of “military activity” included in the said article is however controversial.246 Paragraph 4.5.1. will further elaborate on this remark in the context of counter-narcotics operations. The crux regarding the targeting of objects seems to be more of a tactical nature in most cases. Eliminating civilian objects used by insurgents as well as safeguarding such objects may be considered as military advantages. It depends on the circumstances which one is chosen, but the latter may be preferred in COIN due to strategic considerations.247

4.3.3. Minimum use of force Based on the above, a considerable strain is placed on the principle of distinction when it comes to COIN. Scholars argue that the said principle does not cater to modern day warfare. It has for example been suggested by Diab that status based targeting should be conducted under the framework of IHRL interpreted in light of the relevant rules of IHL.248 Predominant recourse to

241 Geiβ & Siegrist 2011, p. 27; Article 52(2) AP I also reflects a norm of customary IHL applicable in both international as non-international conflicts: see Henckaerts & L. Doswald-Beck 2005, p. 29. 242 API, Article 52(2). 243 Landgericht Bonn 11 December 2013, 1 O 460/11 (The Prosecutor v. Colonel Georg Klein), para. 63. 244 See https://ihl-databases.icrc.org/applic/ihl/ihl- nat.nsf/caseLaw.xsp?documentId=B7FFAAEA272596B7C1257D25004BC9CC&action=openDocument&xp_countryS elected=DE&xp_topicSelected=GVAL-992BUA&from=state, last accessed on 14 October 2019. 245 Ducheine & Pouw 2010, p. 109. 246 Schmitt 2009-I, p. 314. 247 Ducheine & Pouw 2010, p. 109. 248 Diab 2019, pp. 24-28.

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IHRL would however entail a paradigm shift that would not find sufficient support in current State practice.249 While it is true that the use of force under the law enforcement paradigm is much more protective, case specific and threat-proportionate, its application in situations of conflict is still considered as inadequate and unrealistic. 250 This study therefore encourages the development of new criteria, such as discussed in paragraph 4.3.1., to ameliorate the applicability of IHL in contemporary conflicts such as Afghanistan. The blurring distinction between insurgents and civilians and between military objects and civilian objects does however create the necessity to use “minimum force” in COIN operations. When the military does not resort to the use of “minimum force”, the support of the local population diminishes.251 But as this primarily stems from strategic and not legal considerations, it is the conduct of hostilities paradigm that remains the prevailing legal paradigm in situations of armed conflict.

4.4. The principle of proportionality

It has been discussed in the previous chapter how the principle of proportionality operates within the paradigms of law enforcement and the conduct of hostilities.252 Under the latter paradigm, the use of force is only prohibited where the potential harm to civilians or damage to civilian objects caused by an attack would be excessive. 253 In conventional combat the proportionality principle thus demands an equilibrium between the number of civilian casualties and the amount of damage to civilian objects on the one hand and the military advantage gained on the other hand.254 This might be called a quantitative approach.255 In the context of the armed conflict in Afghanistan, the principle of proportionality was interpreted stricter than required under the paradigm of hostilities. To implement the population centered approach of the COIN doctrine, the Tactical Directives and in particular the U.S. ROE have placed a higher impetus on the

249 Geiβ & Siegrist 2011, p. 24. 250 Ibid., p. 24-25. 251 De Cock 2010, p. 121 252 See paragraph 3.3.3.2. 253 Gaggioli 2013, p. 9. 254 FM 3-24/MCWP 3-33.5 Counterinsurgency 2006, paras. 7-32. 255 Ducheine & Pouw 2010, p. 116.

P a g e | 52 avoidance of civilian casualties and collateral damage.256 For instance, it is stated in the U.S. COIN Manual that: […] in COIN operations, advantage is best calculated not in terms of how many insurgents are killed or detained, but rather which enemies are killed or detained. If certain key insurgent leaders are essential to the insurgents’ ability to conduct operations, then military leaders need to consider their relative importance when determining how best to pursue them.257

In other words, eliminating specific persons with a certain position of leadership within the enemy force is of greater importance than the number of adversaries captured or killed. This also means that it is not only essential to determine whether a person is a legitimate target, but there must also be certainty on the targets identity.258 The reason behind this is that such an attack would disrupt the coordination of the adversary and impair their military capabilities, increasing the chances of repressing the insurgency more rapid. Thus, within COIN we see more of a qualitative approach to the military advantage component on the proportionality scale. 259 Moreover, according to the Tactical Directive issued by Patraeus, the use of lethal force is only allowed when there are no civilians present and as a measure of self-defense “where it is determined no other options are available to effectively counter the threat”. 260 The proportionality assessment is graphically illustrated in figure 1.

256 Criddle 2012, p. 1110. 257 FM 3-24/MCWP 3-33.5 Counterinsurgency 2006, paras. 7-32. 258 Ducheine & Pouw 2010, p. 118. 259 Ibid., p. 116. 260 General D.H. Petraeus, Tactical Directive NATO/ISAF, 1 August 2010.

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Figure 1 261

Some scholars argue that the conventional balancing test of IHL does not correspond with the greater protection offered to civilians in COIN. 262 For instance, Criddle supports a broader application of the proportionality principle under IHRL within NIACs. Although the proportionality principle within COIN seems to have more similarities with the said principle under the law enforcement paradigm, it does and should not offside the conduct of hostilities as the governing paradigm. The heavier proportionality assessment in COIN flows from ROE. According to Corn and Corn, ROE consist of a conjunction of three essential elements: IHL, (national) policy and operational requirements. 263 Figure 2 gives a representation of this confluence in an ideal situation.

261 See Ducheine & Pouw 2010, p. 118. 262 Criddle 2012, p. 1111. 263 Corn & Corn 2012, p. 355.

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Figure 2 264

The reasons behind ISAF ROE seem to be primarily based on a policy risk assessment, instead of on humanitarian reasons. Having said that, these restrictions in the context of COIN, whether viewed from a legal, moral or practical perspective, emerge from a governmental linkage and the “proper authority” role of the State. Such documents are hence still very much influenced by law enforcement norms and the expectation of how a properly operating State preserves the internal order.265 The proportionality test is therefore still legally governed by the conduct of hostilities paradigm if applicable. The proportionality assessment may however be based on ROE influenced by the rules and principles of the law enforcement paradigm.

4.5. Potential overlap

ISAF encountered various operational difficulties in situations where the determination of the applicable paradigm was not as straightforward. This paragraph will touch upon two noticeable examples were the two legal paradigms potentially overlap, namely counter-narcotics operations and vehicle checkpoints.

264 Ibid., p. 356. 265 Watkin 2016, p. 259.

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4.5.1. Counter-narcotics operations The fight against drug trade was a serious challenge in Afghanistan. According to NATO, the Taliban reaped annually approximately 40 percent, or around 100 million dollar, of their financial recourses from the narcotics trade.266 Upon request of the Afghan government, it was agreed upon by the NATO alliance in 2008 that “ISAF can act in concert with the Afghans against facilities and facilitators supporting the insurgency, in the context of counter-narcotics, subject to the authorization of respective nations”.267 It was stressed by NATO officials that only drug producers and traffickers aiding the insurgency would be attacked.268 As the Taliban relied upon resources derived from the drug trade, it is not illogical for ISAF to want to disrupt the illicit narcotics economy.269 Such operations were however harmful to the win-the-population strategy,270 as the Afghan community is highly dependent on the opium industry and counter-narcotics operations hence jeopardized their economic livelihood and welfare. 271 ISAF Commander McKiernan admonished that such attacks would “seriously undermine the commitment ISAF has made to the Afghan people and the international community [...] to restrain our use of force and avoid civilian casualties to the greatest degree predictable”.272 The legal issue at stake regards the question whether the counter-narcotics operations are to be governed by either the conduct of hostilities paradigm or the law enforcement paradigm. Counternarcotic operations are generally regarded as an activity of law enforcement subject to national or international human rights law. They could however also be viewed as a military operation as the insurgency relies upon the financial profits.273 Various nations, including Spain, Italy and Germany, opposed the broadened mandate and stressed that counter-narcotics operations are measures of law enforcement according to their domestic policies. They claimed that their soldiers could risk a domestic lawsuit if they would target nonfighters.274 This hence

266 Morelli & Belkin 2009, p. 14. 267 NATO Press Release 10 October 2008. 268 Schmitt 2009-I, p. 301. 269 Ibid., p. 319 270 Ibid., p. 320. 271 Ibid., p. 305; Morelli & Belkin 2009, p. 15. 272 Koebl, Spiegel Online 28 January 2009. 273 De Cock 2011, p. 111. 274 Shanker, The New York Times 22 December 2008.

P a g e | 56 raises the question whether or not Taliban participants in the illicit narcotics industry could also be considered as direct participants in hostilities in the sense that they would be legitimate targets within the paradigm of the conflict of hostilities.275 As correctly stated by Schmitt, it is only allowed to directly target individuals in counter-narcotics operations when they would otherwise still be legitimate targets under IHL as a fighter or as a direct participant in hostilities. It is hence allowed to target insurgents associated with the drug trade, but drug producers and traffickers associated with the insurgency are not legally targetable.276 Those belonging to the latter group are surely not completely immune from attack as they still may be a legitimate target under the law enforcement paradigm. The use of force is much more restricted in such situations than in combat operations under the conduct of hostilities paradigm.277 In the same vein, the law regarding the targeting of objects is controversial as well. The main issue here is whether objects with “war-sustaining capability” may be identified as military objects in the sense of Article 52(2) API, which refers to “military action”.278 This is the case according to the Americans, who explain such objects as “economic objects of the enemy that indirectly but effectively support and sustain the enemy’s war-fighting capability” and view them as legitimate targets.279 The notion of “war-sustaining” is however much criticized and is “too lax”, as eloquently described by Dinstein.280 The connection between military action and the drug trade, essential for financing the war, is “too remote”.281 Nations who regard war-sustaining objects as military objects may thus legitimately target drug-related facilities and transports under the conduct of hostilities paradigm. Those nations opposing this view may only target such facilities and transports under the law enforcement paradigm derived from IHRL.282 The latter position is legally stronger and hence espoused by this study.

275 Watkin 2016, p. 226. 276 Schmitt 2009-I, p. 320. 277 Ibid., p. 319. 278 Schmit 2009-I, p. 314; Commander’s Handbook on the Law of Naval Operations (NWP 1-14M) 2007, para. 8.2. 279 Commander’s Handbook on the Law of Naval Operations (NWP 1-14M) 2007, para. 8.2.5. 280 Dinstein 2004, p. 87. 281 Ibid., p. 87; De Cock 2011, p. 112. 282 Schmitt 2009-I, p. 320.

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4.5.2. Vehicle checkpoints In Afghanistan, checkpoints were one of the essential security measures where passing people were inspected for explosives, weapons and drugs.283 Checkpoints could also function as part of a military operation, for instance as a way of impeding hostile activities and they could be perceived as a likely target of the adversary.284 Questions regarding the use of force arise when an unknown person approaches a clearly indicated checkpoint with high speed and ignores the stop-signs. The applicable paradigm is first of all debatable as checkpoints are partially, if not primarily, set up as security measures. 285 It is typically the law enforcement paradigm that governs the use of force in relation to security measures. The legal paradigm of the conduct of hostilities may however still prevail over the law enforcement paradigm even in situations where the parties ultimately seek to restore or preserve public security, law and order.286 The purpose or function of a checkpoint is thus not the overriding determinant of the applicable paradigm.287 As previously demonstrated, the status, function or conduct of a person are the main factors for determining the lex specialis. 288 When there is knowledge of these criteria, the applicable paradigm is straightforward. Targeting under the conduct of hostilities paradigm is allowed when a checkpoint is approached by a legitimate military target, either a fighter or a civilian taking direct part in hostilities. The law enforcement paradigm governs the use of force when it is used against protected persons or when it is doubtful whether or not the person constitutes a legitimate target.289 When there is doubt an escalation of force procedure has to be used which, as demonstrated in paragraph 3.4.1., stems from the law enforcement paradigm and not the conduct of hostilities paradigm as sometimes asserted.290

283 Hutchinson, National Post 10 August 2010. 284 Geiβ & Siegrist 2011, pp. 40-41; Gaggioli 2013, p. 42. 285 Geiβ & Siegrist 2011, p. 41. 286 As seen in paragraph 3.5.2. 287 Watkin 2012, pp. 312-313; Gaggioli 2013, p. 42. 288 See paragraph 3.4.1. 289 Geiβ & Siegrist 2011, p. 42. 290 Gaggioli 2013, p. 41.

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4.6. Conclusion

The case study on ISAF made in this chapter has applied the discussion about the interplay between the legal paradigms of law enforcement and the conduct of hostilities to a specific COIN operation. The IHL principles most affected were the principle of distinction and proportionality. With regard to the principle of distinction, hostile acts and hostile intents have been pointed out as supplementing criteria for determining whether a person is a legitimate target under the conduct of hostilities paradigm. The necessity to use “minimum force” in COIN operations has however been emphasized due to the blurring distinction between insurgents and civilians and between military objects and civilian objects. With regard to the principle of proportionality we have seen a shift from a quantitative to a qualitative approach towards the military advantage component on the proportionality scale. But because the reasons behind ISAF ROE seem to be primarily based on a policy risk assessment, the proportionality test is and must continue to be legally governed by the conduct of hostilities paradigm, if applicable. Furthermore, the parallel applicability of the two legal paradigms is especially visible in the cases of counter-narcotics operations and vehicle checkpoints. This study supports the view that both are initially governed by the law enforcement paradigm, unless there is certainty on whether or not the person is a legitimate target under the conduct of hostilities paradigm. Overall, ISAF ROE are based upon strategic and policy considerations rather than on legal and humanitarian reasons. It may be concluded that the COIN operation of ISAF in Afghanistan has not led to a shift from the legal paradigm of the conduct of hostilities to the legal paradigm of law enforcement.

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“GIVEN THE DISCONNECT BETWEEN COUNTERINSURGENCY AND THE LAWS OF WAR, IT IS ONLY NATURAL TO WONDER WHAT COURSE REVISIONS TO THE LAWS OF WAR SHOULD TAKE.” ~ G. Sitaraman 291 ~

291 Sitaraman 2009, p. 1833.

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5. CONCLUDING REMARKS

5.1. Overview of the analysis

This study has critically discussed the interplay between the legal paradigms of law enforcement and the conduct of hostilities in the context of contemporary COIN. Chapter 1 has raised three sub-questions of which the findings have been discussed in the previous chapters. In this final chapter, these results are combined in order to provide the answer to the main question: “What influences the interplay between the paradigms of law enforcement and the conduct of hostilities in the context of contemporary counterinsurgency warfare?”. In light of the first sub question, an examination of the evolution of COIN has illustrated its genesis and shown its contemporary meaning. COIN is a military strategy used to fight against insurgents. An insurgency seeks to challenge the status quo of a State and aims to weaken the control and legitimacy of the government while simultaneously increasing their own control and influence. As insurgencies depend on the support of the local population, counterinsurgents believe that protecting the local population is essential for quelling an insurgency. COIN has adapted over time and changed its responses due to shifts within insurgencies. While classical COIN has emerged as a reaction to the “wars of national liberation”, contemporary COIN now deals with the spread of extremist ideologies and the globalization of today’s insurgencies. The answer to the second sub questions demonstrates the key differences between the legal paradigms of law enforcement and the conduct of hostilities. The law enforcement paradigm derives mainly from IHRL and regulates the vertical relationship between the State and its population. In situations of armed conflict, this paradigm functions as the lex generalis. By contrast, the conduct of hostilities paradigm is almost exclusively governed by IHL and its rules were drafted to alleviate the calamities of war as much as possible. This paradigm functions as the lex specialis in situations of armed conflict. The principal differences between the two paradigms can be encountered within the principles of necessity, proportionality and precaution, which operate in different ways within the two legal paradigms.

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The third sub question concerns the applicable legal paradigm with regard to the use of force by ISAF forces in Afghanistan. The case study conducted in the previous chapter has shown that ISAF ROE resemble norms of law enforcement. This study nevertheless argues that ISAF ROE are based upon strategic and policy considerations and therefore regards the conduct of hostilities as the prevailing legal paradigm. However, when the use of force is directed against civilians or individuals of whom it is unclear whether he or she constitutes a legitimate target, the law enforcement paradigm applies. This brings us to the key conclusion of this study. The interplay between the legal paradigms of law enforcement and the conduct of hostilities is controlled by the lex specialis. In the context of COIN, the ROE may be influenced by the law enforcement paradigm and hence impose stricter limitations on the rules governing the conduct of hostilities. This study has demonstrated that when the rules of the legal paradigm of the conduct of hostilities apply, they take precedence. The law enforcement paradigm may however be parallel applicable when it concerns the targeting of civilians. For determining the applicable paradigm, the “status, function or conduct” of the potential target has been established as the main criteria. The criteria of the degree of control and intensity of violence and the criteria of hostile act and hostile intent have been pointed out as supplementing criteria.

5.2. Reflections on future research and legislation

The use of force under the law enforcement paradigm is currently still considered as inadequate and unrealistic to govern the conduct of hostilities. A paradigm shift would therefore not find sufficient support in current State practice. IHL might however at some point in time be unable to govern the dynamic nature and rapidly changing characteristics of contemporary warfare. The population centric approach incorporated into modern day COIN policy documents could perhaps serve as a viable basis for a more humane IHL in the future. In the interim, more clarity is needed on the applicable paradigm in COIN warfare, especially in situations of parallel applicability.

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First of all, it is important to emphasize that COIN is still a relatively unfamiliar concept in the literary world. The interpretation of contemporary COIN is currently dominated by documents of the U.S. government and literature written by U.S. scholars. Contemporary COIN deserves greater recognition as it concerns a much more humanitarian way of warfare than traditionally conducted. More research into the subject would hence be appreciated. In conjunction, it is of great importance that scholars and practitioners come together due to the fact that only those who have experienced such war scenarios are able the genuinely express the feasibility of certain aspects. Also, more States should step into the footsteps of the U.S. and publish their own COIN manual as this will contribute the development of the COIN doctrine. Furthermore, the issue of the interplay between the legal paradigms of law enforcement and the conduct of hostilities covers a broad spectrum and it must therefore be examined from different angles. It is recommended that further study is conducted on the functioning of the different principles operating under the paradigms in contemporary conflicts such as Afghanistan. Further development of the parameters for determining the applicable paradigm is also necessary, particularly a more accurate determination of hostile intent. More clarity on the CCF concept is also necessary. Moreover, the principle of distinction is the quintessence of IHL and its preservation is of utmost importance for the protection of civilians. Due to increasing difficulties attached to the said principle in contemporary conflicts, further research is needed to prevent its devitalization. For example, more research is recommended on the development of additional criteria for determining whether the person constitutes a legitimate target, such as the criteria for hostile act and hostile intent. In addition, the controversy among States around the designation of military objects needs to be addressed. The interplay between the paradigms of law enforcement and the conduct of hostilities is still very controversial. This study has provided for a basis in the context of COIN on which further research may build upon. It is of great importance to emphasize the clear fact that policy is not law. It will be left up to scholars to research the direction that IHL should take in the future and whether current policy will become law one day. For now, one could only imagine how the characteristics of warfare will keep on changing over time and how international law should adapt to it.

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