Proportionality in Counterinsurgency: A Relational Theory

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use of force. The central insight is that a state's authority to use force under international law is derived from, and constrained by, the fiduciary character of its relationship with its people. This relational conception of state sovereignty offers an attractive normative framework for addressing conflicts between human rights and humanitarian law. When states engage in internal armed conflict and belligerent occupation, their assertion of public powers of governance over an affected population entails a concomitant fiduciary obligation to satisfy the strict proportionality standard of international human rights law. Conversely, when states defend their people in traditional international armed conflict and transnational armed conflict against nonstate actors, international humanitarian law ordinarily supplies the applicable proportionality standard. Examples from conflicts in Afghanistan, Argentina, Israel, Libya, and Russia illustrate how the relational approach to choice-of-law analysis could lay a more coherent and principled foundation for counterinsurgency regulation under international law. INTRODUCTION On March 17, 2011, the United Nations Security Council adopted Resolution 1973, authorizing U.N. member states "to take all necessary measures" short of occupation "to protect civilians and civilian populated areas" in Libya from the brutal counterinsurgency campaign waged by Colonel Muammar el-Qaddafi. (1) In explaining the legal basis for its resolution, the Security Council emphasized the Qaddafi government's sharp "escalation of violence" against insurgents in eastern Libya and the "heavy civilian casualties" attributed to this violence. (2) The Security Council took pains to stress further that the Libyan government had transgressed its basic "responsibility ... to protect the Libyan population" by failing to take "all feasible steps to ensure the protection of civilians." (3) As American and European forces commenced military strikes in Libya, they endeavored to frame their mission objectives in terms consistent with Resolution 1973. The professed rationale for intervention was humanitarian: to prevent the Libyan government from continuing to use unlawfully indiscriminate and disproportionate force in its counterinsurgency operations. In the words of U.S. Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, the unfolding action in Libya was about "limiting or eliminating" Qaddafi's "ability to kill his own people." (4) Military intervention was framed as an appropriate response to the Libyan government's flagrant violation of international legal standards governing the use of force in counterinsurgency. Given the strident condemnation of Libya's counterinsurgency campaign, a casual observer might be forgiven for concluding that the international legal standards governing a state's use of force in counterinsurgency must be well settled. Sadly, this is not entirely the case. At the close of the twenty-first century's first decade--a period that will be remembered for costly counterinsurgency operations in Afghanistan, Chechnya, Iraq, Sri Lanka, Sudan, and a host of other locations--international law has yet to develop a coherent framework for counterinsurgency regulation. …