Over the last quarter-century or more, the evolving legal regulation of military conduct during conflict has seen normative conventions collide, leaving military practitioners uncertain about the legality of their rules of engagement and significantly exposed to legal risk as they prosecute their assigned missions. The essence is that high-intensity combat operations with a character of war are now being conducted in situations other than state-on-state warfare and in environments not generally viewed as warfighting arenas. Consequently, in an osmotic process, International Human Rights Law (IHRL) has blended with International Humanitarian Law (IHL) to the point where legal complexity, rather than combat clarity, is the battlespace norm. In short, the absence of clearly defined legal boundaries means that military practitioners now struggle to distinguish between the permissiveness of IHL for warfighting and the constraints of IHRL. This temporal reality comes into sharp focus in the conduct of Special Operations that are kinetic in nature. Joint US/UK Tier One Special Operations conducted in Afghanistan and Iraq through the post-9/11 era are a clear illustration of how such complexity feeds ambiguity around the ethical validity of delivered military outcomes. Faced with a situation where thousands of people were being killed by a combination of roadside bombings and mass beheadings perpetrated by ideological zealots, Tier One Special Forces were tasked to move robustly against the perpetrators of these atrocities. An intense period of operations that combined targeted arrests with necessary lethal force stabilised the situation, thus saving thousands of lives. This was, in essence, a warfighting mission, one where these Special Forces operators could reasonably have expected that the permissive thresholds of IHL would apply in the use of lethal force and detainment of the enemy. Instead, their actions are being retrospectively analysed and, in all probability, will be judged through the prism of IHRL. Apart from being unfair, this suggests that military operations of the future – and particularly Special Operations – will be subject to constraints that reduce the chances of operational success, curtail dynamic initiative and advantage the enemy. A recent pronouncement by the UK Defence Secretary stipulating that the European Convention on Human Rights (ECHR) applies to military operations both at home and overseas confirms the conflation of IHL and IHRL. This is an issue that warrants urgent attention by the UK Defence establishment, not least because it positions that future operations must be conducted under a body of laws and conventions that are often in conflict, and that when applied in combination may act to significantly constrain our Defence capabilities at a time of rising international tensions and increasing military threat. This paper sets out how and why high-intensity operations in the Middle East through the post-9/11 era became subject to legal confusion and the displacement of norms that might reasonably have been relied upon in the conduct of operations that, temporally and tactically, had the character of war. To be clear, the paper is not intended as a definitive treatise on the detailed legal frameworks at play, or indeed the history of operations in the Middle East. More accurately, it is intended as a positional piece that aims to catalyse energetic engagement by the UK Defence establishment and those senior lawmakers charged with ensuring that our Armed Forces are supported by a clear and robust body of law for future operations, wherever they are deployed. It is suggested here that the swiftest and most effective way of cohering with this prime duty of Government is to assert a clear delineation between IHL and IHRL through the instrument of sovereign law.
Robert Parr (Thu,) studied this question.