An Australian Perspective on Non-International Armed Conflict: Afghanistan and East Timor

• Author: Rob McLaughlin
• Position: Associate Professor of Law, Australian National University; Captain, Royal Australian Navy
• Pages: 293-319

XIV

An Australian Perspective on Non-

International Armed Conflict:

Afghanistan and East Timor

Rob McLaughlin*

Introduction

Overthe course ofthe last three decades, Australia has committed forces to a

wide range of operations that have, collectively, involved the Australian

Defence Force (ADF) in its most sustained period of high operational tempo since

the Vietnam War. The operations include the first Gulf War, in 1990-91, and the

second Gulf War, in 2003 (both international armed conflicts (IACs)); belligerent

participation in non-international armed conflicts (NIACs) in Iraq post-2003 and

Afghanistan (at least since 2005); and participation in arange of peace operations

ofwidely varied political, physical and legal risk, including transitional administra-

tions in Cambodia and East Timor, sanctions enforcement in the North Arabian

Gulf, and stabilization and mitigation operations in Somalia, Rwanda, East Timor,

Bougainville and the Solomon Islands. As each operation has unfolded, Australia

has learned (or in some cases, relearned) both practical and theoretical lessons

in operational law. In many cases, these lessons have been identified and

contextualized within arelatively defined (albeit fluid) operational legal paradigm

*Associate Professor of Law, Australian National University; Captain, Royal Australian Navy.

The views expressed in this article are my own and should not necessarily be attributed to the

Royal Australian Navy, Australian Defence Force or government of Australia.

An Australian Perspective on Non-International Armed Conflict

in that experience with IAC, and non-law of armed conflict (LOAC)-governed

peace operations, has tended to be relatively linear and coherently incremental.

With NIACs, however, the trajectory has not always been as logical or smooth. I

believe that there are three reasons for this differing path. Ishall not examine them

in any detail, but it is nevertheless useful to set them out up front for they provide a

contextual backdrop to the focus of this study. First, as opposed to IAC and peace

operations generally, there was—and remains—much less clarity about what law

applies in NIAC. Ongoing debates as to the application of human rights law in

armed conflict (which are almost universally conducted by reference to NIAC-

based examples) 1and the lively and contentious discussion surrounding the appli-

cation of IAC blockade law to what some characterize as aNIAC situation between

Israel and Hamas in the Gaza Strip2are but two examples that illustrate this

point. 3Indeed the fundamental task of distinguishing the NIAC threshold from its

"upper" and "lower" neighbor legal paradigms (IAC and less-than-NIAC law en-

forcement in situations of civil disturbance) similarly remains ahighly contested

and politically laden debate. There is little doubt that the relative "scarcity" and

"opacity" of NIAC LOAC is one reason why NIAC LOAC is the primary battle-

ground in the current push to harmonize IAC and NIAC LOAC by asserting that

most (if not all) of the IAC rules are equally applicable in NIAC, and to humanize

LOAC by reinterpreting its scope of application and the substance of many of its

constituent concepts in the light of human rights law. The result is that NIAC

LOAC is being squeezed between (or indeed, colonized by) its better defined and

more fully enumerated paradigmatic neighbors, which in turn creates the percep-

tion—if not the actuality—of greater fluidity and indeterminacy than in other ele-

ments of operations law.

The second reason, which emanates from the first, is that the existence of a

NIAC remains ahighly political assessment, whereas the existence of an IAC is gen-

erally (or at least relatively when compared to NIAC) easy to establish with adegree

of logic and certainty. This is most evident at the lower NIAC threshold, between

non-NIAC situations of civil disturbance and NIAC itself. The very large space for

political influence in aNIAC characterization decision (much larger than in the

equivalent IAC conflict characterization space) has meant that in addition to the

application of NIAC LOAC being dogged by ahigher degree of substantive uncer-

tainty and opacity than either IAC LOAC or peace operations law, it has also re-

mained amuch more politically nuanced and contested body of law at even the

initial point of characterization. Perhaps the most striking illustration is the long

British reluctance to characterize "the Troubles" in Northern Ireland as anything

other than aless-than-NIAC law enforcement situation.4

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