Amelie Theussen Center for War Studies, University of Southern Denmark

1. The interaction of legal frameworks in contemporary counterterrorism and counterinsurgency operations Amelie Theussen Center for War Studies, University of Southern Denmark Vincent Charles Keating Center for War Studies, University of Southern Denmark

2. Changing Character of War • Characteristics of contemporary war • Revolution in Military Affairs • 4th generation warfare (4GW) • “New” terrorism • Empirical result: simultaneous counterterrorism and counterinsurgency operations • Conceptual result: use of ‘counterterrorism’ and ‘counterinsurgency’ interchangeably by Western leaders and in academic literature

3. Traditional Differences in Operations • Counterterrorism and counterinsurgency – both dominant paradigms in Western security • Counterterrorism • Selective targeting of terrorists/terrorist organizations, generally through policing • Counterinsurgency • Typically involves state-building, ‘winning hearts and minds,’ while engaging in military operations

4. Link between Operations and Law • Traditional link between the two operations and international law • Counterterrorism – IHRL • Counterinsurgency – IHL • Problems previously identified, caused by the changing character of war: • Potential infringement of IHRL over IHL and vice versa • Ambiguity over correct application of IHRL and IHL

5. The Problem • Counterterrorism operations increasingly moving towards IHL • Seen in more of a war context than a peace context • Counterinsurgency increasingly moving towards IHRL • Providing governance/services/rule of law, frequently framed in terms of liberal rights • Different for Western states to ascertain which law applies • Involved in numerous and complex types of military operations • Difficult for others to judge what is legal and what is not • Use of ‘lawfare’ – where potentially illegal actions by the enemy are used for propaganda purposes

6. What We Want To Do • Study of the political dynamics involved in the practice of international law • Research question • Is the conceptual conflation between counterterrorism and counterinsurgency, arising out of the environmental changes faced by the changing character of war, an under/unappreciated factor that increases the blurring between IHL and IHRL?

7. Case Study Selection • Conflicts within the context of the war on terror • Afghanistan – has both terrorists and insurgents and a large multilateral community that facilitates conflictual politics • ISIS – organization that itself blurs terrorism and insurgency • Relevant actors • United States and internal decision making • NATO and debates within a larger multilateral setting

8. Means of Analysis • Discourse and practice based analysis • What are we looking for? • What are the politics of the classification discourse within the United States/NATO? • What decisions were made/strategies implemented on the basis of this discourse? • Which laws were referred to, and in what way were they used? • Did this process implicitly/explicitly lead to a blurring of IHL/IHRL? • Temporal causality – did the decisions lead to blurred legal references?