Fighting at the Legal Boundaries

Controlling the Use of Force in Contemporary Conflict

Kenneth Watkin

Winner of the 2017 Francis Lieber Prize, from the American Society of International Law's Lieber Society on the Law of Armed Conflict
Offers a holistic approach towards the application of the various constitutive parts of international law
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
Emphasizes the disconnect that can occur between theory and practice regarding how these legal regimes are applied and interact with one another
Reviews case studies to establish that the threat posed by insurgents, terrorists, and transnational criminal gangs often occur not only at the point these bodies of law interact, but also in situations where there is significant overlap

Fighting at the Legal Boundaries

Controlling the Use of Force in Contemporary Conflict

Kenneth Watkin

Description

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.

Fighting at the Legal Boundaries

Controlling the Use of Force in Contemporary Conflict

Kenneth Watkin

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

Fighting at the Legal Boundaries

Controlling the Use of Force in Contemporary Conflict

Kenneth Watkin

Author Information

Kenneth Watkin, Brigadier General (Retired), Canadian Forces

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.

Fighting at the Legal Boundaries

Controlling the Use of Force in Contemporary Conflict

Kenneth Watkin

Reviews and Awards

"Watkin's book can be seen both as a work of operational law and a major scholarly treatment of the law governing the use of force. It provides detailed accounts of how situations arise on the ground that evade easy classification in terms of our existing conceptual and legal categories. These will provide vivid instruction for those not familiar with the reality of modern military operations. At the same time, it furnishes a valuable framework for analyzing the features of such operations that are relevant in assessing how force should be used in particular scenarios. Finally, Watkin offers a set of principles for both operational law and broader policy decisions to help navigate the complex terrain of modern security challenges." - Mitt Regan, Georgetown University Law Center, Journal of National Security Law & Policy

"[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 "

"Ken Watkin has combined the pragmatism and realism that marked out his successful career as a military lawyer, a compendious knowledge and understanding of contemporary security threats and operations and impressive scholarship to produce a comprehensive, insightful and compelling assessment of the legal challenges that currently confront those charged in this century with maintaining national and international security. This is a highly authoritative monumental treatise that combines wisdom, law, operational experience and common sense, and which is deserving of a wide readership. By taking the discussion beyond the confines of the law and embracing wider operational, policy and doctrinal issues, the book should appeal to a broad audience. . . indeed to anyone with an interest in getting to the bottom of what is driving current security concerns and operations." - William Boothby, International and Comparative Law Quarterly "

Fighting at the Legal Boundaries

Controlling the Use of Force in Contemporary Conflict

Kenneth Watkin

From Our Blog

Drones, the Mullah, and legal uncertainty: the law governing State defensive action

The 21 May 2016 drone strike that killed Taliban leader Mullah Mansour riding in a taxi in Pakistan's Baluchistan province, raises questions about the law governing State defensive action. Fourteen years after the first US counterterrorist drone strike in Yemen, legal consensus remains elusive.

Posted on July 11, 2016

Read the blog post