Last month, the ICRC released a 90-plus page report titled, “The Use of Force in Armed Conflict: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms.” It’s the product of a January 2012 expert meeting that brought together current and retired military professionals, including military lawyers, academics, ICRC representatives, and others who sought to tackle some of the most complex legal questions relating to the use of lethal force in armed conflict.  More specifically, the meeting focused on situations within non-international armed conflicts where it is unclear whether the use of lethal force is governed by international humanitarian law’s (IHL) conduct of hostilities paradigm or international human rights law’s (IHRL) law enforcement paradigm.

An overarching takeaway from the report was that there isn’t a legal and operational consensus amongst the experts over the interplay between the use of force under the conduct of hostilities paradigm and the law enforcement paradigm. It is also obvious from the report, especially as states engage in multilateral military operations, how critical it is for governments to determine with consistency which legal regimes apply when and to provide consistent operational guidance based on those determinations.  These conclusions are not novel, but that shouldn’t detract from the serious food for thought that the report provides to anyone interested in issues of military and law enforcements operations and issues of domestic and international law in times of armed conflict.

The report begins with a rudimentary but important discussion of whether and how the human rights law enforcement paradigm is applicable in non-international armed conflicts (NIACs), including in extraterritorial NIACs. From there the report draws attention to the different ways in which IHL and IHRL approach the use of force. It explains that the principles of necessity, proportionality, and precaution in each regime have fundamental differences, and as a result, there are real consequences if a commander employs a law enforcement approach to a raid on a house versus a conduct of hostilities approach.

The report then focuses on five case studies which demonstrate just how complicated the issues can become. The case studies deal with (i) targeting a non-imminent threat, (ii) riots, (iii) criminal groups, (iv) prison escapes and attacks, and (v) checkpoints.

The first case study is what I’ll call the “sleeping soldier” scenario. A common refrain to explain IHL’s targeting liberties is to say that you can kill your opponent even when he’s sleeping in his barracks—provided of course it’s done within IHL’s confines of proportionality, precaution, etc.

The expert meeting did not take this refrain as fact, but instead discussed if IHL always prevails in the “sleeping soldier” situation and, if so, why. It’s impossible to represent all the expert’s views, but as explained in the report, for various reasons and by a “small margin,” the majority of experts said that the conduct of hostilities paradigm should apply to the sleeping soldier rather than accepting the “capture first” requirement of the law enforcement paradigm. On the other side, strong arguments were made that the law enforcement paradigm should prevail when it can be determined that the situation looks more and more like a peacetime situation than a wartime situation.  Others noted that IHL’s principles of necessity and humanity provide legal constraints that may “soften” (my word) IHL’s approach to the sleeping soldier depending on the circumstances.

The experts weren’t convinced that assessing the proximity of the incident to the conflict zone, the intensity of violence, or the degree of control should be determinative factors in deciding which paradigm applies. This view was consistent throughout much of the five case studies. Also consistent throughout the meeting was the idea that despite the de jure views of the experts, policy decisions would often close the gap between what the conduct of hostilities paradigm permits and what the law enforcement paradigm requires. This was certainly true in the sleeping soldier case study where there was general agreement that from a policy perspective a “reasonable military commander would probably order a capture operation under IHL rather than the targeting of the fighter” due to the intelligence value this could bring and as protection from angering the local population.

The report’s second case study asked: If fighters who are targetable under IHL join a group of rioting civilians who are not targetable under IHL, what use of force paradigm applies?

A majority of the experts came to the legal conclusion that a law enforcement paradigm should be used against the civilians and an IHL conduct of hostilities paradigm should be used against the targetable fighters. (The report called this the “parallel approach.”) The problem with this approach, the experts recognized, was that it wasn’t very practical. How do you distinguish in such close quarters between fights and civilians directly participating in hostilities and mere rioting civilians?

To address this, general consensus formed around an escalation of force approach. However, experts also pointed out that while escalation of force can be employed under the law enforcement and conduct of hostilities paradigms, the former may have different requirements in terms of planning, preparation, and arms use than an IHL approach, all of which will have serious consequences on the type and amount of violence used against the crowd. (This is a topic also discussed at length in the report’s section on preventative obligations.) Some experts also relied on domestic rules of self-defense to explain how they would respond to the riot, but other experts noted that self-defense doesn’t require, as human rights law does, protection of the people in the crowd from being harmed by other people in the crowd.

In the third case study, the experts dealt with the situation where criminal groups provide financial support and arms to armed groups that are party to an armed conflict; and in exchange the armed groups provides lethal protection to the criminal groups and allow them to operate freely. The result is that a state armed group may engage in exchange of fire with both the fighters and the criminal groups.

The experts, as they did in the case study dealing with riots, generally agreed that as a matter of law a “parallel approach” would be necessary. The experts also generally agree that there may come a point in time when a member of a criminal group can get so involved in the activities of the armed group so to make him subject to IHL targeting rules. But most of the experts said that financing of, say, the Taliban in Afghanistan is not enough to trigger this change. There was also a proposal that a new use of force paradigm was needed to address criminal groups whose activities fell short of armed conflict. Many of the experts rejected this, saying that the law enforcement paradigm was adequate and flexible for dealing with criminal groups.

The forth case study focused on a scenario where state-detained fighters start a riot and throw objects at the guards, some of the detainees attempt escape, and at the same time fighters from the outside attack the prison in an attempt to release the detainees.

The experts agreed that IHL conduct of hostilities should apply to the fighters involved in the attack from outside. How to deal with the rioters and escapees was another matter. There was disagreement on, for example, whether a detainee was a civilian or fighter, as well as what constituted a “successful escape,” all of which the experts felt had bearing on whether and when to treat the detainees (or escaped detainees) as civilians or fighters. In the end, however, there was agreement that an escalation of force approach was appropriate for dealing with the prisoners. But, while some experts looked to IHRL to define the escalation of force rules, others look to the Third Geneva Convention rules pertaining to escape attempts. The report notes, “experts generally agreed that, from a practical standpoint, the escalation of force procedure required by the law enforcement paradigm and the one required by IHL is the same.”

The fifth case study focused on how a soldier should react when he or she is guarding a checkpoint and a vehicle, which is carrying passengers who the soldier is unable to clearly make out as an enemy, refuses to slow down?

The experts all agreed that if the person in the vehicle was a legitimate target under IHL then it is the conduct of hostilities paradigm, and not the law enforcement paradigm, that applies.  The experts also agreed that if the person in the car were a civilian, then it’s the law enforcement paradigm that applies. There was also broad agreement that escalation of force procedures must be relied upon when there is doubt as to whether an unidentifiable person who seemingly poses a threat is a civilian or not. Most participants agreed that assessing the proximity of the incident to the conflict zone, the intensity of violence, and control should not be determinative factors.

Where the experts diverged, once again, was on what source of law determined this escalation of force, with some saying that the escalation of force could be derived from the IHL principle of precaution or military necessity. Others, however, said IHRL or general principles of law should be relied upon, and that as long as there is doubt as to civilian status of the possible threat, conduct of hostility rules never can be relied upon.

The report wraps up with detailed discussions on the differences and similarities in how the IHL and IHRL regimes deal with preventive and investigative obligations. I won’t take the space to summarize those discussions, but like the rest of the report, they’re worth a close look.