Chemical Agents and 'Expanding' Bullets: Limited Law Enforcement Exceptions or Unwarranted Handcuffs?

• Author: Kenneth Watkin
• Position: Brigadier General, Canadian Forces
• Pages: 193-218

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Chemical Agents and "Expanding55 Bullets:

Limited Law Enforcement Exceptions or

Unwarranted Handcuffs?

Kenneth Watkin*

Introduction

Modern armed conflict has entered aparticularly dangerous, and in many

ways, chaotic phase. The post-September 11, 2001 period has witnessed

significant debate concerning the ability of existing humanitarian norms to regu-

late 21st-century warfare, and in particular the "war on terror." 1In an interna-

tional system of "order" based on the nation-State much of today's conflict is

taking place on the fringes of what Clausewitz might have viewed as war between

"civilized peoples."2

Certainly as the 2003 Iraq campaign demonstrated, traditional conflict between

States is still areality. Here, the "black and white" treaty law provides awell estab-

lished, if not perfect, normative structure known as the law of armed conflict or in-

ternational humanitarian law.3Customary international law also sets out the

obligations of States in international armed conflict. Determination of the exact

scope ofthis second body of law is more challenging as is evidenced in the continu-

ing dialogue over which of the provisions ofAdditional Protocol Iare to be viewed

*Brigadier General, Canadian Forces. The opinions expressed in this article are those of the

author and do not necessarily reflect the views of the Government of Canada, the Canadian

Forces, or the Office of the Judge Advocate General.

Chemical Agents and "Expanding" Bullets

as customary international law.4However, notwithstanding this dialogue, there is a

significant commonality in the understanding of the obligations on States during

the conduct of hostilities.5

However, much of contemporary conflict is occurring in what can be termed a

"gray" zone. There are four situations where the military forces of the State are re-

quired to conduct operations at the interface between warfare and policing: occu-

pation, non-international armed conflict, peace support operations and the

international campaign against terrorism. Consistent with the term "gray zone,"

the determination of the normative framework to be applied is not always clear.

While there is often acommon theme ofviolence being applied between State and

non-State actors, the lack of clarity as to what rules should be followed occurs in

two ways. First, there is the question of the degree to which the law of armed con-

flict, designed for inter-State conflict, can or should regulate violence between

State and non-State actors. Secondly, there is the inevitable interface between the

law of armed conflict and human rights norms. In simpler terms: the rules govern-

ing armed conflict versus those applying to law enforcement.

Resolving the question of which normative framework applies is extremely im-

portant. For the personnel involved, identification of the correct normative

framework governing the decision to use force can be literally amatter of life and

death. Complying with that framework means military personnel are not only act-

ing "legally," but also in accordance with the value system demanded by modern

States of its "warriors."6The importance for soldiers, sailors and airmen to act ac-

cording to the standards of society, both broader society as well as military society,

cannot be overstated.

In dealing with this challenge of applying the law, military and civilian govern-

ment legal advisors can take some solace from the fact that they are not alone in

their struggle to do the right thing in the complex security situations confronting

States. Non-governmental organizations and other humanitarian groups are also

wrestling with what law or norms should be applied to 21st-century conflict. 7Just

as military forces are changing their understanding and approaches towards armed

conflict, human rights and humanitarian groups are being confronted with having

to apply long-cherished norms in an uncertain operational environment. One

scholar from the humanitarian law community has written "[i]t is debatable

whether the challenges of asymmetrical war can be met with the current law ofwar.

Ifwar between States is on the way out, perhaps the norms of international law that

were devised for them are becoming obsolete as well."8This observation provides

an indication that the ability of existing codified law to meet the challenges of 21st-

century warfare is being opened up to considerable debate.

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