Part 3 will combine the previous chapters on the ‘use of force’ categories in nato roe and the relevant legal authorities for the use of force. The purpose is to examine which legal authorities the use of force under the respective roe categories must comply with, how this influences the roe application, and the degree to which the roe and the corresponding legal bases overlap. By knowing the true extent of the legal room for manoeuvre, Commanders and their planners will be better able to exploit this potential and make a more informed determination of how to achieve the political and operational aims of the mission, within the applicable legal framework. When policy-driven State practice is misconstrued as law, the applicable law is perceived as more restrictive than it truly is. Because the limitation may be unsuited to a different operational reality, such misconception should be avoided. Because this analysis is generic rather than mission specific, it does not take into account limitations imposed by for instance a UN Security Council resolution setting out the mandate for the operation,1 or mission specific political and operational considerations.
As previously explained, military forces commonly view the right of self-defence as a key ‘use of force’ concept, and nato roe provide that self-defence is the only basis for the use of force beyond roe. It is therefore important that military forces understand when they can rely on this exception. However, it is an area fraught with confusion and misunderstanding, and it is referred to in situations very different from the traditional self-defence concepts. The role of self-defence as a ‘use of force’ concept is particularly complicated in multinational operations, especially those involving participation in an armed conflict. As a result, it is prudent to examine in detail how the legal concept of self-defence may be applied by military forces during armed conflict (see Section 8.2). It is also necessary to identify the legal authority for acts perceived as self-defence, but not justified by the legal concepts, and to further define these concepts (see Section 8.3).
The focus in Chapter 9 is on what should have been a clear and distinct ‘use of force’ concept, but which unfortunately tends to be mixed into the others, namely the use of force in response to an attack or imminent attack by opposing forces in an ongoing armed conflict. The use of force against persons who are lawful targets under loac would usually be expected to be based on loac. However, this form of defensive or reactive force is too often considered a form of self-defence. It is therefore also discussed in Section 8.3 on operational concepts of self-defence. Even though this practice of relying on an operational concept of self-defence is accepted as a current reality, the better approach would be to separate the use of force in response to an attack or imminent attack during an armed conflict, based on loac, from the legal concepts of use of force in self-defence. Dealing with such use of force as a separate category is one way of enhancing this distinction.
In addition to using force in response to threats or attacks, either under loac or in self-defence, military forces will also use force as part of their mission. Military forces will use force to fight the opposing forces, either because of their current conduct or intentions, or on the basis of their status as lawful targets. Furthermore, they may be required to use force when conducting activities such as house searches, inspection of vehicles, or movement of nato forces, or to prevent the destruction of property or commission of serious crimes. The roe regulating use of force to accomplish designated tasks raise unique challenges in the current context; it has the potential for authorising force which causes harm to persons who neither are necessarily lawful targets nor pose a threat giving rise to a right of self-defence. This begs the question of whether, and if so when, harm may knowingly be caused to civilians not directly participating in hostilities. This is examined in Chapter 10.
The next two chapters examine the use of force, or attack, on opposing forces. The first ‘use of force’ categories dealt with are the nato ‘hostile act’ and ‘hostile intent’ concepts, and Chapter 11 explores the relationship between these roe and loac. Because the nato hostile act and hostile intent roe authorise attack in response to conduct or expected future conduct (intent), the most relevant part of loac is the concept of ‘direct participation in hostilities’ (dph). As explained in Section 5.2.3, this concept is applied both to the question of when civilians lose their protection from direct attack and to the issue of organised armed groups. As a result, this chapter will aim to connect one of the most complex rules in loac with what are arguably the most complex nato roe concepts. The examination of this relationship is intended to add further clarity to nato ‘hostile act’ and ‘hostile intent’ roe concepts.
The topic of the final chapter of Part 3, Chapter 12, is perhaps the least complicated one: the attack on forces ‘declared hostile’ on the basis that they are lawful targets under loac. This is commonly viewed as status-based targeting. This category does, however, raise the question whether status-based targeting is possible in all forms of armed conflict, especially where the legal authority for attacking the opposing forces is deemed to be the concept of dph. Phrased differently, can conduct be used to determine status, and if so, how? This chapter will also explain how the loac rules on conducting attacks are operationalised through the joint targeting process.
On the relationship between the jus ad bellum and the jus in bello, see Section 4.3.