Laurie R. Blank, Complex Legal Frameworks and Complex Operational Challenges: Navigating the Applicable Law Across the Continuum of Military Operations

• Citation: Vol. 26 No. 1
• Publication year: 2010
• topic: Military Law

COMPLEX LEGAL FRAMEWORKS AND COMPLEX OPERATIONAL CHALLENGES: NAVIGATING THE APPLICABLE LAW ACROSS THE CONTINUUM OF MILITARY OPERATIONS

Laurie R. Blank*

Modern conflicts and stability operations pose complex challenges for both military and civilian actors tasked with promoting the rule of law during conflicts and stability operations. Military operations can occur both during armed conflict and in situations that do not qualify as armed conflict, such as

disaster relief or humanitarian intervention.1 The now oft-used term “stability

operations” encompasses U.S. military activities conducted “outside the United States in coordination with other instruments of national power to maintain or reestablish a safe and secure environment, provide essential governmental services, emergency infrastructure reconstruction, and humanitarian relief.”2

The legal classification of a particular situation, including non-conflict situations, determines which law governs the actions, rights, and obligations of those involved. The continuum of conflict ranges from domestic disorders to non-international armed conflicts to international armed conflicts, including belligerent occupation. Other situations involving the use of military force or military capabilities may include counter-piracy or counterterrorism operations, disaster relief, or humanitarian assistance. In addition, conflicts sometimes involve elements of both international and non-international armed conflict and often evolve from one form of conflict into another. The emergence of new forms of conflict, for which there may be no ready characterization, complicates matters. For example, acts of transnational terrorism could constitute an international armed conflict, a non-international armed conflict, a law enforcement operation, or, perhaps, a new category of conflict. Indeed, stability operations occur across the spectrum of military operations, within the context of international armed conflict, non-international

* Director, International Humanitarian Law Clinic, Emory University School of Law.

1 See 10 U.S.C. §§ 401–409 (2006); S. REP. NO. 109-322, at 467–550 (2006).

1. DEP’T OF THE ARMY, FIELD MANUAL 3-07: STABILITY OPERATIONS, at vi (2008), http://downloads.

   army.mil/docs/FM_3-07.pdf [hereinafter STABILITY OPERATIONS] (quoting JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-0: DOCTRINE FOR JOINT OPERATIONS, at xxi (2001), http://www.fs.fed.us/fire/doctrine/genesis_ and_evolution/source_materials/dod_joint_ops_doctrine.pdf).

   armed conflict, and non-conflict situations. Such operations thus involve multiple legal frameworks, including international humanitarian law, human rights law, and the domestic law of both the territorial state and the state sending troops, as well as, perhaps, a United Nations (“UN”) mandate and bilateral or multilateral treaties, or additional layers such as joint operations doctrine.

   
   

   Understanding how these various legal regimes interact in practice on the ground is a challenging task and is fundamental to promoting the rule of law in conflict and post-conflict environments.3 For example, uncertainty about the applicable law can impact a range of determinations including, among others,

   detention regimes, targeting, and the parameters of the authority and responsibility for conducting operations. Identifying the applicable law in a conflict or during a stability operation is thus an essential first step that enables both military and civilian actors to define their engagement in any international intervention.

   
   

   This challenge is often compounded when states involved in a conflict or military operation do not explicitly characterize it, or when coalition partners have conflicting views as to its characterization. For example, the United States chose not to characterize its operation in Panama as an armed conflict.4

   Instead, the United States described its operation—one that involved the deployment of approximately 30,000 U.S. troops and extensive hostilities between U.S. and Panamanian forces—as assistance to the legitimate

   
   

2. This Article grew out of the discussions at the pilot meeting of Mind the Gap: Assessing the Applicable Law Across the Continuum of Conflict, a project initiated by the International Humanitarian Law Clinic at Emory University School of Law, with the support of the U.S. Institute of Peace. The project has been renamed Rules of War and Tools of War; the Author is the Project Director; Project Co-Chairs are Professor Michael N. Schmitt, Chair, International Law Department, Naval War College; and Professor Amos

   N. Guiora, S.J. Quinney College of Law, University of Utah. The project brought together leading practitioners and scholars with operational and legal experience in a range of conflicts and peace and stability operations for a two-day meeting in September 2010. In particular, the expert group focused on: (1) identifying the key legal questions that arise over the continuum of conflict scenarios; (2) assessing whether and how problems in defining the conflict situation and identifying applicable legal regimes complicate effective and legal interventions; (3) determining which relevant materials and products would be most useful for military and civilian actors on the ground; (4) addressing how to better train key actors in this regard; and (5) developing a framework for better analyzing the key questions and dilemmas identified. The Author is grateful to the participants at the initial pilot meeting for their insights on these issues and, in particular, would like to thank Benjamin R. Farley, J.D., Emory University School of Law (2011), for his excellent research assistance and contributions to the discussion and the preparation of this Article.

3. United States v. Noriega, 808 F. Supp. 791, 794–95 (S.D. Fla. 1992); Geoffrey S. Corn & Sharon G.

   Finegan, America’s Longest Held Prisoner of War: Lessons Learned from the Capture, Prosecution, and Extradition of General Manuel Noriega, 71 LA. L. REV. 1111, 1117 (2011).

   government of Panama (although it applied the law of armed conflict as a matter of policy).5 Alternatively, while the United States has declared that it is in an armed conflict in Afghanistan with both the Taliban and al Qaeda, coalition partners such as Germany remained reluctant, until recently, to

   characterize their involvement under the aegis of the International Security Assistance Force (“ISAF”) as an armed conflict.6 Thus, even within the same coalition, some nations would not apply the same legal framework to their activities, creating differing interpretations of rights and obligations.

   
   

   Although international law provides a framework—albeit more or less clear depending on the situation—for the characterization of conflict and non- conflict situations, other factors will often come into play from the perspective of a particular state. For example, characterization of conflict impacts cohesion among coalition partners, the nature of contemporary operations, and the linkage between tactics and broader policy issues and choices. A range of background issues will also be relevant, such as the connection between law and policy, the process by which law is made, and the role of law in the policymaking process. For some observers, the lack of or uncertain characterization of a conflict up front may be seen as the direct cause of numerous legal and policy challenges; for others, it is an inherent aspect of the law and decision-making process, and is symptomatic of the tensions between strategic-level policymaking and tactical-level operational decision-making. Nonetheless, although the choice not to characterize a military operation does afford policymakers a great deal of flexibility—a valid and advantageous goal that allows them to tailor operations to particular needs—characterization of conflicts matters from a legal perspective—it makes a difference normatively and not just on a policy level.

   
   

   This Article analyzes the impact of differing legal characterizations, or a lack of characterization altogether, in complex conflict situations. Amid the complicated set of considerations that contribute to conflict characterization, the interaction of different applicable legal frameworks poses several key issues that policymakers and military and civilian decision-makers should

   
   

4. Noriega, 808 F. Supp. at 795; Corn & Finegan, supra note 4, at 1117–18.

5. See Timo Noetzel, Germany’s Small War in Afghanistan: Military Learning amid Politico-Strategic Inertia, 31 CONTEMP. SECURITY POL’Y 486, 487 (2010) (“Foreign Minister Guido Westerwelle, speaking explicitly as a representative of the government as a whole, announced before the Bundestag that Germany now considered the conflict in all of Afghanistan, and thus including the northern part of the country, an

   ‘armed conflict in terms of international humanitarian law.’”) (quoting Guido Westerwelle, Foreign Minister, Address at the Bundestag (Feb. 10, 2010), available at http://www.auswaertiges-amt.de/EN/Infoservice/ Presse/Reden/2010/100210-BM-BT-Afghanistan.html).

   consider and weigh seriously. Part I provides a brief background of the legal framework for conflict characterization and highlights some additional policy and strategic considerations as a framework for the primary analysis of the overlapping legal frameworks. Part II presents four main categories of operational concepts that can be particularly vulnerable to uncertain conflict characterizations and highlights the legal fault lines that may result from such ambiguity or uncertainty. The first category, detainee issues, includes detention, treatment, transfer, and trial. The second category, use of force, encompasses targeting, weapons, and host nation influence on operations. In the third category, civil–military relations, the primary issues include humanitarian assistance and relations between the military and nongovernmental organizations (“NGOs”); and the fourth category focuses on third state responsibilities during conflict and related...