Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict

by Kenneth Watkin OMM, CD, QC

Overview

The international law governing armed conflict is at a crossroads, as the formal framework of laws designed to control the exercise of self-defense and conduct of inter-state conflict finds itself confronted with violent 21st Century disputes of a very different character. Military practitioners who seek to stay within the bounds of international law often find themselves applying bodies of law-IHRL, IHL, ICL-in an exclusionary fashion, and adherence to those boundaries can lead to a formal and often rigid application of the law that does not adequately address contemporary security challenges. Fighting at the Legal Boundaries offers a holistic approach towards the application of the various constitutive parts of international law. The author focuses on the interaction between the applicable bodies of law by exploring whether their boundaries are improperly drawn, or are being interpreted in too rigid a fashion. Emphasis is placed on the disconnect that can occur between theory and practice regarding how these legal regimes are applied and interact with one another. Through a number of case studies, Fighting at the Legal Boundaries explores how the threat posed by insurgents, terrorists, and transnational criminal gangs often occurs not only at the point where these bodies of law interact, but also in situations where there is significant overlap. In this regard, the exercise of the longstanding right of States to defend nationals, including the conduct of operations such as hostage rescue, can involve the application of human rights based law enforcement norms to counter threats transcending the conflict spectrum. This book has five parts: Part I sets out the security, legal, and operational challenges of contemporary conflict. Part II focuses on the interaction between the jus ad bellum, humanitarian law and human rights, including an analysis of the historical influences that shaped their application as separate bodies of law. Emphasis is placed on the influence the proper authority principle has had in the human rights based approach being favored when dealing with "criminal" non-State actors during both international and non-international armed conflict. Part III analyzes the threats of insurgency and terrorism, and the state response. This includes exploring their link to criminal activity and the phenomenon of transnational criminal organizations. Part IV addresses the conduct of operations against non-State actors that span the conflict spectrum from inter-state warfare to international law enforcement. Lastly, Part V looks at the way ahead and discusses the approaches that can be applied to address the evolving, diverse and unique security threats facing the international community.

Product Details

ISBN-13:	9780190457990
Publisher:	Oxford University Press
Publication date:	05/03/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	456
File size:	2 MB

About the Author

Brigadier General (Retired) Kenneth Watkin was a career military legal adviser to the Canadian Forces, who has served in a number of operational, military justice, and general legal advisory positions, most recently as Judge Advocate General for the Canadian Forces. He is widely respected as a scholar of IHL and national security law, with dozens of articles in the field. He won the 2008 Lieber Society Military Prize for his AJIL article, Assessing Proportionality: Moral Complexity and Legal Rules, and served as the Charles H. Stockton Professor of International Law at the U.S. Naval War College from 2011-2012.

Table of Contents

Table of Cases Abbreviations PART I: INTRODUCTION 1. An Outline of the Challenges PART II: THE INTERACTION BETWEEN NORMATIVE FRAMEWORKS 2. Controlling State Involvement in Conflict 3. Applying the Self-Defense Principles During Armed Conflict 4. States, "Proper Authority", and Conflict 5. The Humanitarian and Human Rights Law Interface PART II: THE THREAT, THE STATE RESPONSE AND LEGAL UNCERTAINTY 6. Contemporary Threats: Insurgency and Terrorism 7. Counterinsurgency and Converging Norms 8. Counterterrorism and the "Away Game" 9. Non-State Actors and Armed Conflict 10. Self-Defense and the Protection of Nationals PART IV: APPLYING FORCE ACROSS THE CONFLICT SPECTRUM 11. Law Enforcement and "Self-Defense" 12. The Narrow Operational and Normative Gap 13. The Limits of Law Enforcement PART V: THE WAY AHEAD 14. A Holistic Solution 15. Preparing for 21st Century Warfare Appendix 1: Confronting Transnational Violence: A Holistic Approach Bibliography Index

Editorial Reviews

"[Q]uite possibly, the most important single-author IHL monograph written in many years. Watkin's book is firmly rooted in a sophisticated and almost exhaustive analysis of the relevant facts and law. The author's depth of experience as a practitioner of "holistic" operational law is evident on every page. This book is outstanding and one hopes it will be widely read and thought about." -William Fenrick, Lawfare Blog

From the Publisher