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Michael John-Hopkins, The Rule of Law in Crisis and Conflict Grey Zones: Regulating the Use of Force in a Global Information Environment

Michael John-Hopkins, The Rule of Law in Crisis and Conflict Grey Zones: Regulating the Use of... Michael John-Hopkins argues that there is the risk that the legal paradigm of hostilities is being over-applied to what are essentially situations of crisis rather than conflict. Accordingly, this study seeks to clarify at what point violence is so dangerous and intense that it exceeds the capacity of law enforcement methods and thus the regulatory standards set out in international human rights law. Over the course of nine chapters, The Rule of Law in Crisis and Conflict Grey Zones offers readers a provocative discussion that attempts to clarify what targeting and weaponry rules apply to the use of force in unconventional and irregular situations of violence, how to coordinate the application of these two very different legal frameworks and argues for the progressive realization of targeting and weaponry law so that they are fit for purpose in urbanized and civilianized operational environments. Unlike handbooks on humanitarian law, it provides more in-depth accounts of both what the law is as well as what the law should be in relation to targeting and weaponry. Crucially, it provides the reader with discussion and proposals about how substantive and institutional reform can be achieved in a credible fashion. While containing strong legal analysis, John-Hopkins’ work maintains an interdisciplinary appeal, combining international law with international relations, military and strategic studies, sociology and criminology. International humanitarian law and human rights law are situated in their contemporary political, doctrinal and factual contexts, while objective frameworks are developed for assessing the intensity of violence and the participation in or membership of diffuse organizational structures. Chapter 1, The Contemporary Theatre of Operations, outlines contemporary protection issues and seeks to identify key problems, trends and challenges in relation to the general nature and characteristics of contemporary hostilities which are mostly non-international in character. Chapter 2, A General Critique of IHL Targeting And Weaponry Norms and Institutions, discusses whether existing standards for the legal regulation of means and methods of force are fit for purpose and fit for contemporary contexts while exploring the core substantive and procedural weaknesses of the current system of humanitarian protection. In effect, it provides an outline and a critique of mainstream targeting and weaponry law setting the foundation for the discussion of the dynamic ways and shape in which reform may occur. Chapters 3 through 8 proceed to identify and discuss a range of substantive, procedural and institutional solutions to contemporary protection issues. They identify gaps and obstacles to humanitarian and human rights protection in relation to conduct of hostilities rules and institutions. In addition, they identify the transition from the paradigm of human rights law to humanitarian law and where the threshold of status-based targeting should apply in non-international armed conflicts before setting out the legal and policy arguments for their progressive development. In turn, these chapters serve as the heart of the analysis of The Rule of Law in Crisis and Conflict Grey Zones. They offer important legal and practical insights into classifying situations of violence for the purpose of coordinating the application of human rights law and humanitarian law and in particular, they discuss how humanitarian law and human rights rules on the use of force may be applied in the same operational theatre. Specifically, Chapter 3, Reconceptualising the Regulation of the Use of Force in Situations of Crisis and Unconventional Conflict: Enhanced Contextual Status Determination, sets out improved criteria for categorizing situations of violence. The chapter identifies, in practical terms, where a situation is such that it exceeds the capacity of law enforcement methods and regulatory standards set out in human rights law and so enters into the legal paradigm of treaty based and customary humanitarian law relative to targeting and weaponry. Chapters 4 and 5 seek to put the concepts of direct participation in hostilities and membership of an organized armed group on the most analytical and principled footing to date. They detail improved criteria for assessing whether an individual is directly participating in hostilities or is a member of an organized armed group, and these criteria borrow from international criminal law models of accessorial liability and co-perpetration. Chapter 4, Reconceptualising the Regulation of the Use of Force in Situations of Crisis and Unconventional Conflict: Individual Status Determination, argues that due to the ‘civilianization’ of the contemporary battlefield, targeting on the basis of status may only occur at a very high threshold of violence and then only in the context of targeted operations. In relation to this, the book under the review is unique in identifying, in clear and practical terms, where the threshold of status-based targeting should apply in non-international armed conflicts as well as setting out legal, doctrinal and policy arguments as to why status-based targeting should be confined to a high threshold of applicability and used only in the context of planned and targeted operations. Chapter 5, Towards a Clearer Framework for Distinguishing those who Participate Directly in Hostilities from those who are to be Protected as Civilians: Extrapolating Models of Accessorial Liability and Coperpetration in the Commission of Harmful Acts, offers the reader a unique analysis of what constitutes direct participation in hostilities as well as de facto membership of an organized armed group. It does this by extrapolating criminal law models of accessorial liability, joint criminal enterprise and indirect perpetration to address important questions surrounding the parameters of civilian immunity from attack. Unlike the existing literature on this topic, this new analysis puts the discussion on a clearer and firmer analytical footing and is likely to provoke further debate and discussion. Chapter 6, Reconceptualising Targeting and Weaponry Law for the Unconventional Theatre of Operations, and Chapter 7, Weaponry law: Emerging Approaches to the Regulation of Means of Warfare and Law Enforcement, discuss how treaty based and customary targeting and weaponry law and policy have been progressively interpreted and developed to suit the challenges to military operations in a civilianized and urbanized operation theatres. John-Hopkins takes on board a ‘minimalist’ account of the nature and content of the treaty based and customary targeting and weaponry rules. However, on the basis of state practice and the authoritative decisions of a range of human rights mechanisms, he argues for their progressive interpretation. The aim is a higher standard of reasonableness in the context of urbanized and civilianized theatres of operations when it comes to targeted killings, proportionality assessments, precautionary measures as well as the use of explosive weaponry and ‘non-lethal’ weapons in civilian populated urban areas. Contrary to what a number of legal and military scholars suggest, it is argued that progressive realization in these regards need not be considered unrealistic given that it has a firm basis in relevant state practice. Chapter 8, Regulating Military Operations Abroad: the Extraterritorial Effect of Human Rights and the Potential Modalities of Parallel Application of the Right to Life under Human Rights Law and International Humanitarian Law, discusses developments with regard to extraterritorial effect of human rights restrictions and obligations, and examines potential modalities for the parallel application of human rights and international humanitarian law in order to ensure that adequate substantive and procedural safeguards are in place in regulating the use of force adequately, particular when it comes to targeted or extrajudicial killing. It provides an alternative and constructive account of how human rights mechanisms may play a more authoritative and credible role in supervising conflict situations and ensuring that existing legal standards are fit for purpose. Chapter 9, Conclusions: Grey Zones of War and Peace in Our Globally Networked Information Environment, is where John-Hopkins succinctly reminds readers that The Rule of Law in Crisis and Conflict Grey Zones provides an outline and a critique of mainstream targeting and weaponry law, but unlike existing publications, it proceeds to identify legal, theoretical and policy arguments for a progressive reappraisal of existing standards so that they are fit for contemporary low-intensity conflict situations. In particular, it demonstrates that a basic non-international armed conflict has a very high threshold of application and so human rights standards are applicable and appropriate for many situations of low-intensity hostilities. It is hard to think of an issue more pressing in our current political climate than the maintenance of international peace and security. As history demonstrates, this maintenance often necessitates the use of force in response to international and increasingly non-international crises and conflicts. Uncertainty and controversy not only surrounds the classification of these situations of crisis and conflict but also the meaning, scope and interplay of humanitarian law and human rights law in situations of irregular armed conflict and other situations of violence. Resulting from an increased overlap in jurisdiction between human rights law and humanitarian law, Michael John-Hopkins makes a valuable contribution to this dialogue. The book sheds light on these uncertainties and controversies in a carefully considered, comprehensive and coherent narrative on a range of interrelated fundamental issues concerning the interpretation and ordering of norms of humanitarian and human rights law relating to targeting and weaponry in contemporary conflict situations. © Oxford University Press 2018; All rights reserved. For Permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Michael John-Hopkins, The Rule of Law in Crisis and Conflict Grey Zones: Regulating the Use of Force in a Global Information Environment

Esterling, Shea Elizabeth
Journal of Conflict and Security Law , Volume Advance Article (1) – Feb 6, 2018
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Publisher
Oxford University Press
Copyright
© Oxford University Press 2018; All rights reserved. For Permissions, please e-mail: journals.permissions@oup.com
ISSN
1467-7954
eISSN
1467-7962
DOI
10.1093/jcsl/kry001
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Abstract

Michael John-Hopkins argues that there is the risk that the legal paradigm of hostilities is being over-applied to what are essentially situations of crisis rather than conflict. Accordingly, this study seeks to clarify at what point violence is so dangerous and intense that it exceeds the capacity of law enforcement methods and thus the regulatory standards set out in international human rights law. Over the course of nine chapters, The Rule of Law in Crisis and Conflict Grey Zones offers readers a provocative discussion that attempts to clarify what targeting and weaponry rules apply to the use of force in unconventional and irregular situations of violence, how to coordinate the application of these two very different legal frameworks and argues for the progressive realization of targeting and weaponry law so that they are fit for purpose in urbanized and civilianized operational environments. Unlike handbooks on humanitarian law, it provides more in-depth accounts of both what the law is as well as what the law should be in relation to targeting and weaponry. Crucially, it provides the reader with discussion and proposals about how substantive and institutional reform can be achieved in a credible fashion. While containing strong legal analysis, John-Hopkins’ work maintains an interdisciplinary appeal, combining international law with international relations, military and strategic studies, sociology and criminology. International humanitarian law and human rights law are situated in their contemporary political, doctrinal and factual contexts, while objective frameworks are developed for assessing the intensity of violence and the participation in or membership of diffuse organizational structures. Chapter 1, The Contemporary Theatre of Operations, outlines contemporary protection issues and seeks to identify key problems, trends and challenges in relation to the general nature and characteristics of contemporary hostilities which are mostly non-international in character. Chapter 2, A General Critique of IHL Targeting And Weaponry Norms and Institutions, discusses whether existing standards for the legal regulation of means and methods of force are fit for purpose and fit for contemporary contexts while exploring the core substantive and procedural weaknesses of the current system of humanitarian protection. In effect, it provides an outline and a critique of mainstream targeting and weaponry law setting the foundation for the discussion of the dynamic ways and shape in which reform may occur. Chapters 3 through 8 proceed to identify and discuss a range of substantive, procedural and institutional solutions to contemporary protection issues. They identify gaps and obstacles to humanitarian and human rights protection in relation to conduct of hostilities rules and institutions. In addition, they identify the transition from the paradigm of human rights law to humanitarian law and where the threshold of status-based targeting should apply in non-international armed conflicts before setting out the legal and policy arguments for their progressive development. In turn, these chapters serve as the heart of the analysis of The Rule of Law in Crisis and Conflict Grey Zones. They offer important legal and practical insights into classifying situations of violence for the purpose of coordinating the application of human rights law and humanitarian law and in particular, they discuss how humanitarian law and human rights rules on the use of force may be applied in the same operational theatre. Specifically, Chapter 3, Reconceptualising the Regulation of the Use of Force in Situations of Crisis and Unconventional Conflict: Enhanced Contextual Status Determination, sets out improved criteria for categorizing situations of violence. The chapter identifies, in practical terms, where a situation is such that it exceeds the capacity of law enforcement methods and regulatory standards set out in human rights law and so enters into the legal paradigm of treaty based and customary humanitarian law relative to targeting and weaponry. Chapters 4 and 5 seek to put the concepts of direct participation in hostilities and membership of an organized armed group on the most analytical and principled footing to date. They detail improved criteria for assessing whether an individual is directly participating in hostilities or is a member of an organized armed group, and these criteria borrow from international criminal law models of accessorial liability and co-perpetration. Chapter 4, Reconceptualising the Regulation of the Use of Force in Situations of Crisis and Unconventional Conflict: Individual Status Determination, argues that due to the ‘civilianization’ of the contemporary battlefield, targeting on the basis of status may only occur at a very high threshold of violence and then only in the context of targeted operations. In relation to this, the book under the review is unique in identifying, in clear and practical terms, where the threshold of status-based targeting should apply in non-international armed conflicts as well as setting out legal, doctrinal and policy arguments as to why status-based targeting should be confined to a high threshold of applicability and used only in the context of planned and targeted operations. Chapter 5, Towards a Clearer Framework for Distinguishing those who Participate Directly in Hostilities from those who are to be Protected as Civilians: Extrapolating Models of Accessorial Liability and Coperpetration in the Commission of Harmful Acts, offers the reader a unique analysis of what constitutes direct participation in hostilities as well as de facto membership of an organized armed group. It does this by extrapolating criminal law models of accessorial liability, joint criminal enterprise and indirect perpetration to address important questions surrounding the parameters of civilian immunity from attack. Unlike the existing literature on this topic, this new analysis puts the discussion on a clearer and firmer analytical footing and is likely to provoke further debate and discussion. Chapter 6, Reconceptualising Targeting and Weaponry Law for the Unconventional Theatre of Operations, and Chapter 7, Weaponry law: Emerging Approaches to the Regulation of Means of Warfare and Law Enforcement, discuss how treaty based and customary targeting and weaponry law and policy have been progressively interpreted and developed to suit the challenges to military operations in a civilianized and urbanized operation theatres. John-Hopkins takes on board a ‘minimalist’ account of the nature and content of the treaty based and customary targeting and weaponry rules. However, on the basis of state practice and the authoritative decisions of a range of human rights mechanisms, he argues for their progressive interpretation. The aim is a higher standard of reasonableness in the context of urbanized and civilianized theatres of operations when it comes to targeted killings, proportionality assessments, precautionary measures as well as the use of explosive weaponry and ‘non-lethal’ weapons in civilian populated urban areas. Contrary to what a number of legal and military scholars suggest, it is argued that progressive realization in these regards need not be considered unrealistic given that it has a firm basis in relevant state practice. Chapter 8, Regulating Military Operations Abroad: the Extraterritorial Effect of Human Rights and the Potential Modalities of Parallel Application of the Right to Life under Human Rights Law and International Humanitarian Law, discusses developments with regard to extraterritorial effect of human rights restrictions and obligations, and examines potential modalities for the parallel application of human rights and international humanitarian law in order to ensure that adequate substantive and procedural safeguards are in place in regulating the use of force adequately, particular when it comes to targeted or extrajudicial killing. It provides an alternative and constructive account of how human rights mechanisms may play a more authoritative and credible role in supervising conflict situations and ensuring that existing legal standards are fit for purpose. Chapter 9, Conclusions: Grey Zones of War and Peace in Our Globally Networked Information Environment, is where John-Hopkins succinctly reminds readers that The Rule of Law in Crisis and Conflict Grey Zones provides an outline and a critique of mainstream targeting and weaponry law, but unlike existing publications, it proceeds to identify legal, theoretical and policy arguments for a progressive reappraisal of existing standards so that they are fit for contemporary low-intensity conflict situations. In particular, it demonstrates that a basic non-international armed conflict has a very high threshold of application and so human rights standards are applicable and appropriate for many situations of low-intensity hostilities. It is hard to think of an issue more pressing in our current political climate than the maintenance of international peace and security. As history demonstrates, this maintenance often necessitates the use of force in response to international and increasingly non-international crises and conflicts. Uncertainty and controversy not only surrounds the classification of these situations of crisis and conflict but also the meaning, scope and interplay of humanitarian law and human rights law in situations of irregular armed conflict and other situations of violence. Resulting from an increased overlap in jurisdiction between human rights law and humanitarian law, Michael John-Hopkins makes a valuable contribution to this dialogue. The book sheds light on these uncertainties and controversies in a carefully considered, comprehensive and coherent narrative on a range of interrelated fundamental issues concerning the interpretation and ordering of norms of humanitarian and human rights law relating to targeting and weaponry in contemporary conflict situations. © Oxford University Press 2018; All rights reserved. For Permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Journal of Conflict and Security Law – Oxford University Press

Published: Feb 6, 2018

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