Proportionality in counterinsurgency: a relational theory.

• Author: Criddle, Evan J.

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use of force. The central insight is that a state's authority to use force under international law is derived from, and constrained by, the fiduciary character of its relationship with its people. This relational conception of state sovereignty offers an attractive normative framework for addressing conflicts between human rights and humanitarian law. When states engage in internal armed conflict and belligerent occupation, their assertion of public powers of governance over an affected population entails a concomitant fiduciary obligation to satisfy the strict proportionality standard of international human rights law. Conversely, when states defend their people in traditional international armed conflict and transnational armed conflict against nonstate actors, international humanitarian law ordinarily supplies the applicable proportionality standard. Examples from conflicts in Afghanistan, Argentina, Israel, Libya, and Russia illustrate how the relational approach to choice-of-law analysis could lay a more coherent and principled foundation for counterinsurgency regulation under international law.

INTRODUCTION

On March 17, 2011, the United Nations Security Council adopted Resolution 1973, authorizing U.N. member states "to take all necessary measures" short of occupation "to protect civilians and civilian populated areas" in Libya from the brutal counterinsurgency campaign waged by Colonel Muammar el-Qaddafi. (1) In explaining the legal basis for its resolution, the Security Council emphasized the Qaddafi government's sharp "escalation of violence" against insurgents in eastern Libya and the "heavy civilian casualties" attributed to this violence. (2) The Security Council took pains to stress further that the Libyan government had transgressed its basic "responsibility ... to protect the Libyan population" by failing to take "all feasible steps to ensure the protection of civilians." (3)

As American and European forces commenced military strikes in Libya, they endeavored to frame their mission objectives in terms consistent with Resolution 1973. The professed rationale for intervention was humanitarian: to prevent the Libyan government from continuing to use unlawfully indiscriminate and disproportionate force in its counterinsurgency operations. In the words of U.S. Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, the unfolding action in Libya was about "limiting or eliminating" Qaddafi's "ability to kill his own people." (4) Military intervention was framed as an appropriate response to the Libyan government's flagrant violation of international legal standards governing the use of force in counterinsurgency.

Given the strident condemnation of Libya's counterinsurgency campaign, a casual observer might be forgiven for concluding that the international legal standards governing a state's use of force in counterinsurgency must be well settled. Sadly, this is not entirely the case. At the close of the twenty-first century's first decade--a period that will be remembered for costly counterinsurgency operations in Afghanistan, Chechnya, Iraq, Sri Lanka, Sudan, and a host of other locations--international law has yet to develop a coherent framework for counterinsurgency regulation. The problem is not that there are no legal norms that would limit the authority of a Qaddafi to "kill his own people." Such norms certainly exist; indeed, few norms are more firmly established in international law than the principle that states may use only "proportional" force when responding to national security threats. The real problem is that international law contains multiple, conflicting standards for evaluating a state's use of force in counterinsurgency, and courts and publicists have yet to reach a consensus about how these standards relate to one another. (5)

Two discrete subfields of international law--international human rights (HRL) and international humanitarian law (IHL)--currently compete for supremacy in the counterinsurgency context. Each of these bodies of law aspires to safeguard human dignity during national security crises, but each honors human dignity in its own way. (6) IHL authorizes states to target enemy fighters freely in support of military objectives, provided that collateral damage to civilians is not manifestly "excessive." (7) HRL, on the other hand, seeks to safe-guard the universal demands of human dignity for all--even, and perhaps especially, during armed conflict--by prohibiting all casualties that are not strictly necessary to preserve human life. (8) Because international law does not contain clear choice-of-law rules to mediate conflicts between HRL and IHL, these two formulations of the "proportionality" principle have continued along parallel tracks without converging toward a unified and theoretically satisfying standard. While regional human rights tribunals have tended to apply HRL's proportionality standard to counterinsurgency, other international tribunals have applied IHL standards as lex specialis. (9) This fragmentation of the legal standards governing counterinsurgency has realworld costs not only because it compromises states' ability to demonstrate their adherence to international standards, but also because the difference between HRL's strict proportionality standard and IHL's more flexible standard is often measured in military and civilian casualties. While these reputational and human costs of counterinsurgency might mean little to an inveterate rights-abuser such as Colonel Qaddafi, they are felt more keenly by coalition forces in Afghanistan and Iraq who recognize that fidelity to international legal standards is a key factor in winning over "hearts and minds."

How, then, should international law reconcile IHL and HRL in counterinsurgency? Some courts and legal scholars have argued that international law should distinguish the respective domains of IHL and HRL based on the nature of the threat to national security (i.e., ordinary disturbances vs. armed conflict) and the corresponding type of operation conducted (i.e., law enforcement vs. military). According to this logic, HRL's strict proportionality standard would apply whenever a state is able to address internal unrest through traditional law enforcement tools. When internal disturbances spark genuine armed conflict, on the other hand, IHL's proportionality standard would displace HRL. I refer to this approach for reconciling IHL and HRL in the discussion that follows as the "operational theory" of lex specialis. Although the operational theory has its detractors, it has emerged as arguably the leading conceptual framework for reconciling IHL and HRL.

In this Article, I argue that the operational theory is normatively unattractive as a choice-of-law rule because it ignores a critical factor in assessing a state's legal authority to use force: the character of the relationship between particular states and the persons they target with coercive force. A general theme running throughout contemporary international law is the principle that states bear special duties of care toward their own nationals and foreign nationals over whom they have asserted public powers of governance. Under HRL, states are obligated to guarantee a variety of basic civil, political, social, and economic rights to their citizens and resident foreign nationals. IHL likewise requires states to honor the dignity of prisoners of war and other detained foreign nationals by providing basic medical attention, food, shelter, and other necessities of life. These affirmative duties of care between states and persons over whom they have asserted public powers of governance are different in kind from states' obligations toward extraterritorial foreign nationals over whom they have not asserted such powers. The latter obligations are better described as quasi-tort duties of noninterference rather than affirmative fiduciary duties of care. Individual states do not ordinarily bear duties under international law to protect and fulfill human rights for foreign nationals, (10) although they do bear duties to respect the human rights of other peoples by refraining from military aggression and other harmful acts that would treat foreign nationals as mere means to their own ends. Because the operational theory ignores the relational character of state obligations under international law, it leads to counterintuitive and morally troubling results, including the proposition that states waging counterinsurgency may kill their own people under some circumstances where lethal force is not strictly necessary to preserve equal freedom for all. Given these results, international lawyers would do well to question whether the operational theory in fact offers the best interpretive framework for conceptualizing a state's legal authority to use force in counterinsurgency. (11)

This Article constructs an alternative theory for structuring the relationship between HRL and IHL in counterinsurgency. The starting point is Immanuel Kant's insight that a state's legal authority to use force is best understood in relational, deontological terms. When states conduct counterinsurgency operations against their own people, as in the current Libyan...