ABSTRACT
Chapter 1 identified some of the key trends across the milieu of unconventional operational theatres. The analysis indicated that conventional normative analysis and frameworks of protection are not fit for contemporary contexts, and so this warrants progressive normative reconceptualisation in terms of the substance and ordering of existing standards relative to the use of force – that is, the meaning to be given to general rules and how separate but related legal frameworks interact and work together. In the context of this study, it covers three main aspects: first, the sequencing of law enforcement and combat activities along a continuum of force and, as a corollary of this, the sequencing of the legal paradigm of law enforcement and of the legal paradigm of hostilities; second, the development of clearer objective criteria for individual and contextual status determination; and, third, the progressive realisation and sequencing of targeting and weaponry norms within the continuum of force required in a full-spectrum operational environment. In short, the term ‘sequencing’ is used as a shorthand expression for identifying the point at which there is a shift or transition from a law-and-order paradigm to an armed conflict paradigm in relation to targeting and weaponry law, and particularly in relation to targeting by status. The importance of this discussion is that the high threshold for a basic CA3 armed conflict indicated by the ICTY Boškoski guidelines suggests a preference for treating contemporary situations of violence as crises to which human rights-based law enforcement approaches to targeting and weaponry apply, rather than conflicts where more permissive Hague rules on the use of force apply. In this way, this discussion takes issue with the argument that the application of ‘IAC rules or principles in a CA3 situation would mean reducing the current level of protection afforded by HRL’.1
