Research Paper 22 June 2017

When Looks Could Kill: Emerging State Practice on Self-Defense and Hostile Intent

by Erica Gaston               GPPi

Executive Summary

In the last decade and a half since September 11, armed conflict has been marked by new patterns of warfare. Non-international conflict – conflict between a state(s) and non-state actors – is more likely than direct conflict with other state parties, and is often characterized by asymmetric tactics. Deadly threats can come from anywhere or anyone – from the push of a mobile phone button to a fighter who blends with the civilian population. In conflicts like Afghanistan, most international soldiers who fired their weapon did so following an ambush or IED detonation, or faced with a speeding suicide bomber at a check point. Where they did, their authority to use lethal force typically came from their inherent right to defend themselves or their unit (the right to unit or individual self-defense), or two related force authorizations that permit soldiers to use force against an individual who commits a hostile act or demonstrates hostile intent.

While soldiers increasingly rely on their right to self-defense in modern conflict, the self-defense paradigm is marked by an absence of hard law. For international and domestic legal bodies, legal scholars, and rights monitors, the dominant lens for examining uses of force in armed conflict is International Humanitarian Law (IHL), which contains no provision on self-defense. Instead, self-defense has emerged as an increasingly prominent justification in practice, but one whose underlying basis and standards are unclear and under-developed. Absent robust discussion on the issue, there are no fixed standards guiding self-defense, and no common understanding of its relationship with other IHL principles. State practice varies significantly, and there is significant ambiguity even within each state’s practice and jurisprudence. How self-defense is understood and used is important because as it is used in practice, self-defense appears to offer an independent framework for use of force, distinct from IHL. Untethered from any agreed international norms or standards, some states' interpretations and use of self-defense challenge the IHL framework and weaken other constraints on the use of force. The overall ambiguity surrounding this increasingly prevalent doctrine undermines accountability, both domestically and internationally.

To better understand existing state practice, this study documents how four countries – the United States, France, Germany, and the United Kingdom – interpreted and applied self-defense in Afghanistan. The research draws on more than 75 interviews with soldiers, military lawyers, and observers who engaged with these issues in Afghanistan, as well as on background research into the legal doctrine and standards for each state, and past military studies on self-defense and hostile intent. This study is primarily aimed at sharing empirical data on emerging practice; a corollary legal article focuses to a greater extent on the legal arguments surrounding self-defense.

By seeking to distill differences in existing state practice, this study supports a more considered evolution and development of this increasingly significant use of force paradigm. Exploring how this practice was used in Afghanistan is particularly important because, in many ways, Afghanistan was a petri dish for the emergence and development of these concepts, which are now so central to justifying use of force. Given the number of states involved in Afghanistan and length of engagement, the lessons learned and practice that emerged there will likely shape international law and practice significantly in the future, affecting an even broader range of conflict situations.

Better understanding and development of concepts like self-defense and hostile intent is important because where states draw the line has significant consequences for a range of protection concerns. An expansive view of these concepts gives soldiers the flexibility to respond to critical threats, but can also result in overbroad threat designations and wide latitude in the level of force permitted. This can increase the risk of civilian casualties and disproportionate uses of force. In Afghanistan, civilians were killed for getting too close to checkpoints or convoys, running away when international forces approached, or tending irrigation ditches and crops, on the assumption that these signified imminent threats. One IHL investigator said the way self-defense and hostile intent were used by U.S. troops in particular was “one of the main drivers” of civilian casualties from 2011 to 2012, a finding echoed by other military studies.

On the other hand, an extremely narrow view of self-defense, as is typical with states whose self-defense is rooted in domestic law (most European countries), can limit soldiers’ ability to respond to ambiguous or indirect threats. This limits both their personal defense – creating “a much higher risk of guys going home in bodybags,” as one British soldier framed it – and their ability to carry out the mission, including protecting civilians. A limited self-defense right can only be partially counter-balanced by providing authority to respond to indirect threats through Rules of Engagement (ROEs). In Afghanistan, the hostile act and intent ROEs were frequently unavailable due to policy or tactical restrictions. In addition, uncertainty surrounding the limits of self-defense and hostile intent led many European soldiers to take a more restrictive approach for fear of domestic criminal liability.

An additional concern with the growth of self-defense is that it may undermine IHL accountability. In Afghanistan, incidents justified by self-defense were more difficult to investigate and hold accountable, according to military and civilian lawyers interviewed, due to deference to soldiers’ perceptions of threat and the ambiguity over self-defense standards. In addition, some states' interpretations of self-defense appear to be less protective of civilians than IHL standards. As a result, the more that incidents are justified, or plausibly justified, by self-defense, the greater the risk of displacing IHL standards and weakening accountability. The expansive U.S. interpretation of self-defense poses the greatest challenge on this account. A more relaxed imminence standard and broad threat categorization allows U.S. soldiers to use force in self-defense in more situations, with fewer constraints. In addition, because self-defense is available wherever troops or their partners are present, self-defense and hostile intent designations have been used to justify U.S. strikes beyond a “hot battlefield,” including significant strikes in Syria and Somalia.  As such, it not only can erode limitations on force in conflict, but also lower the threshold for resorting to force jus ad bellum.

A major challenge in trying to address these different protection and use of force concerns is the ambiguity in standards and lack of settled law. It is difficult to advance discussion or address issues of practice without clarity on the basic legal standards and positions. Such a discussion has been absent in the past because of a lack of basic recognition of the legal weight and relevance of self-defense as its own paradigm. Thus, what is called for is a more considered development of this doctrine, with specific attention to some of the issues that have already arisen in practice:

  • All states should clarify their positions on self-defense, hostile act, and hostile intent concepts, including how standards drawn from other bodies of law translate in soldier's self-defense, and the relationship with IHL.
  • Where interpreted too broadly, threat-based determinations bear a risk of conflating regular civilian activities with threat patterns, and mistaking civilians for combatants. A “learning curve” in how to apply self-defense and hostile intent developed in Afghanistan, curbing some overbroad threat determinations. These lessons should be incorporated into future practice and inform standards for self-defense and hostile intent in other conflict and stabilization environments.
  • Although overbroad interpretations have been curbed, persistent civilian casualties in self-defense and hostile intent situations, most prominently among U.S. practice, suggest a need for further limits. In particular, more attention needs to be given to the significant latitude given to hostile intent determinations in kinetic activities, such as in night raids or other counter-terrorism operations.
  • The prevalence of allegations of excessive or unnecessary force by U.S. forces under a self-defense or hostile intent paradigm raises a question whether the standards used in self-defense are less protective of civilians than IHL.  This issue should be explored further, with a view toward ensuring consistent protection standards for civilians across all armed conflict situations.
  • An extremely extended interpretation of imminence within the self-defense paradigm runs the greatest risk of displacing IHL within armed conflict, and of undermining constraints on use of force outside of declared conflict zones. While some degree of pre-emption may be necessary to deal with ambiguous threats, there must be some outer limits, particularly where self-defense is used to justify uses of force beyond a hot battlefield.
  • Where states continue to base the right of self-defense on domestic law, as most European countries do, there must be some clear direction of how these domestic laws apply in an armed conflict situation, and allowing for some greater degree of leeway than a civilian in a peacetime situation might encounter.
  • If self-defense remains extremely narrow for European forces, there must be greater consideration given to protecting ROE-based authority for responding to ambiguous or indirect threats. Given the importance of responding to these threats in many counterinsurgency or peacekeeping situations, hostile act and intent ROEs should not be as easily limited by tactical or policy restrictions as other types of offensive force.
  • Legal scholars and rights monitors should recognize the growth of this practice in armed conflict, and the implications for civilian protection. Greater engagement in emerging standards will result in a more considered practice that adequately balances soldiers needs and civilian protection imperatives.

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Download the full study.

A complementary legal article to this study was published in the Harvard National Security Journal on June 1, 2017.

 

 

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