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 book tackles those challenges methodically and lays the controversies before the reader in a systematic, readily intelligible way. Issues are discussed in depth from every angle; advantages and drawbacks of alternative approaches are assessed. The wide-ranging discussion, only a few aspects of which can be touched upon in this review, views both legal and policy challenges from numerous perspectives. Practical realism is maintained throughout by considering actual operations, recent and otherwise, in the context of relevant law, operational considerations, applicable decisions of national and international courts, soft law, the academic discourse, political, social and cultural considerations and other factors. Consequently, a most impressive depth of discussion is achieved and maintained.
Here and there, perceptive, sometimes almost sideways, comments shed valuable light on intractable issues and have clearly been the product of many hours of patient reflection.
The occasional typographical errors should not drive the evaluation of a work of this quality. 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 encompassing military lawyers, military strategists, military commanders and thinkers, policymakers, strategic advisers, indeed to anyone with an interest in getting to the bottom of what is driving current security concerns and operations.
A number of questions get the discussion going, including do distinctions between armed conflict and law enforcement make sense given the multifaceted nature of modern conflict? Does dividing the law on resort to force from the law regulating hostilities help? How do humanitarian law with its focus on warfare, human rights law with its focus on individual rights, international criminal law and the domestic law of States interact? The core thesis of the book is that contemporary warfare can be most effectively regulated by a more integrated application of all the various bodies of law that impact on armed conflict (15). Sharp boundaries between those bodies of law may generate grey zones and thus ambiguities where they overlap, implying the need for a more holistic approach in order to achieve an effective, more comprehensive normative framework to limit violence and protect civilian populations (23).
Chapter 2 emphasizes just war theory's ascription of right authority to States and the anti-war focus of UN Charter law. Making domestic law central to non-international armed conflict regulation favours a one-sided, State-biased approach to legitimacy and proves inadequate to deal with, eg, the right of self-defence against non-State actors acting transnationally where the host State is unable or unwilling to take required action. As the book notes, ‘the contemporary security situation is simply not as tidy as the binary notion of international and non-international armed conflicts suggests’ (54).
Chapter 3 considers that the ultimate goal of restraining State action remains an overriding consideration when national authorities are acting against non-State actors (63) and asks whether in the terrorist context a continuing right of self-defence exists where there is an ongoing threat. As the book notes, law governing national self-defence does not give tactical direction to military commanders but it influences targeting at the strategic level and its interaction with IHL is context-based (89).
Chapter 4 explains that the tendency in modern conflicts for fighting to be at the legal boundaries between NIAC and law enforcement creates uncertainty as to what is permitted. The preconditions, such as ungoverned space, that facilitate insurgency are clarified and governance, rule of law and respect for human rights emerge as critical elements to societal success. The operational law imperative is to make applicable bodies of law work together notwithstanding the challenges of modern conflict. The historical resistance by States to applying IHL to NIACs can have the unintended consequence of promoting human rights law to fill the gap (167) whereas the holistic approach facilitates proper preparation for contemporary operations which so often are positioned in another grey area between IHL and law enforcement. High intensity, sustained crime-oriented conflicts sit neatly in that same grey area. Chapter 7 argues that good governance will be central to effectively countering insurgency, that ‘police primacy’ will, subject to the particular circumstances, be a desirable approach and that the extent of control over the locus in quo will determine whether law enforcement can apply on specific occasions.
Law enforcement approaches may be required to accomplish strategic objectives in the counterinsurgency context. Leadership strikes may involve strategic risk, a more contextual evaluation of targets may be required, arrest may be the preferred option (in suitable circumstances), and civilians must be properly treated. Not asserting a state of armed conflict too early may limit the resulting violence (264).
The legitimacy of special forces and drone operations is addressed in Chapter 8 in the context of ‘restrictive law enforcement’, ‘permissive conduct of hostilities’ and ‘self-defence’ theories. As the book notes, there is a danger of legal theory becoming divorced from operational reality. The inability or unwillingness of a host State to take required action to obviate threats from groups operating on its territory emerges as a basis, other legal requirements being present, for the use of cross-border force against the group in self-defence.
There follows a comprehensive assessment of how various forms of rescue operation, including the Entebbe raid, the Sierra Leone rescue, counter-piracy rescues and recovery of kidnap victims in diverse parts of the world fit within the conflict spectrum, noting the legal and other factors that determine what force is permissible. It is correctly observed that ‘the choice made by a court or tribunal to interpret its mandate literally and narrowly as being solely amenable to human rights law jurisdiction does not make incidents, such as those that occurred on Operation Barras any less an armed conflict at law’ (419).
This leads in Chapter 11, inter alia, to the thought that looking at law enforcement use of force exclusively through the narrow self-defence lens fails to acknowledge additional authority to use such force as is required to enforce the law. Herein lies the link to notions of mission accomplishment as a basis for lawful use of force (445 and 460–1). In the end, it is the nature of the threat and of the mission and the context in which the force is operating that will determine the applicable legal framework (474) and it remains to be seen whether the practical challenges confronting States will lead to an interpretation of human rights-permitted force that approximates more closely to that permitted by IHL (481). The adoption of particular tactics, use of indirect fire weapons or employment of ‘shoot to kill’ policies may indicate either that human rights restrictions are being breached or that a state of armed conflict exists (564).
Central to the book's numerous conclusions is that all the bodies of law that it discusses should be included in a composite notion of ‘operational law’. Exclusive interpretations of each such body fail to match the operational challenges the book identifies and that States and their advisers must address. Accordingly a holistic approach, in which there is clarity as to the bodies of law being applied is the way forward that the book advocates, and for the reasons it articulates so thoroughly and convincingly, the present reviewer does not dissent.
