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This chapter explores the threat of insurgency and contrasts it with how terrorism and terrorists are described. The analysis looks at the emerging threats posed by criminal insurgencies and the links between terrorism, insurgency, and crime. It is largely descriptive in nature, focusing primarily on the nature of insurgent and terrorist threats rather than on the legal issues surrounding their activities. The unique attributes of each of these overlapping security threats will be explored, including a discussion of the emerging phenomenon of “criminal insurgency.” Another issue that is explored is the political purpose of non-State actor conflict. Importantly, the chapter sets the scene for the subsequent analysis of the law governing counterinsurgency and counterterrorism. In doing so, the analysis discusses Al Qaeda, the Islamic State, and other Salafi jihadist groups as the dominant transnational “terrorist” threats of this century.

This chapter explores the unique challenges of counterinsurgency operations. It addresses the continuing relevance of counterinsurgency and the traditional reluctance of State militaries to engage in such operations. The application of the “police primacy” principle will be explored, as well as the key role the maintenance of sufficient physical control over an area of operations plays when determining if a law enforcement approach is feasible. The focus then turns to counteracting the threat posed by IED and suicide bombing cells. Consideration of the group nature of this threat includes an assessment of the nature of the participation of persons who support or facilitate the use of these explosive means. The analysis then addresses targeting, with particular emphasis being placed on assessing how the “value” of a target can affect targeting decisions during counterinsurgency operations. Finally, the option of defaulting to a law enforcement model when conducting extraterritorial operations is explored.

This chapter focuses on the lack of legal consensus regarding how non-State violence is categorized and the requirement to determine when the thresholds for an armed conflict are met. The complexity of non-State actor conflict has resulted in an array of legal interpretations regarding conflict categorization. Non-State actor violence is variously linked to inter-State conflict, categorized as a conflict having an international character, as “extraterritorial law enforcement”, transnational armed conflict, or as noninternational armed conflict. In applying a “totality of the circumstances” approach and other recognized criteria, the threshold for armed conflict is demonstrated to be lower than sometimes suggested. The lack of agreement on the approach to be adopted when assessing non-State actor conflict points to the traditional interpretations of criteria developed pre-9/11 to categorize conflict being ill-suited to assess this form of contemporary violence.

This chapter looks at the effectiveness of human rights law in controlling the use of force during armed conflict from three perspectives: practical limitations, overreach in application, and limits caused by interpretation. The Northern Ireland “Troubles” are analyzed to determine whether the United Kingdom’s law enforcement response can underpin the argument that terrorism is primarily amenable to a law enforcement response or should serve as a template for extraterritorial operations. The analysis also explores the “shoot to kill” controversy to assess when a law enforcement approach may no longer be effective. Further, the impact of militarized police forces is discussed. The problem of overreach is considered in the context of the European Court of Human Rights application of human rights law principles to armed conflict, and interpretive limits are assessed in the context of the different post-9/11 State responses to the threat posed by hijacked aircraft.

This chapter outlines the holistic, operational law approach in four parts. The chapter begins by establishing that this approach must address conventional conflict, irregular warfare, and criminal activity regardless of how an armed conflict is categorized legally. The second part considers how the recourse to warfare and humanitarian and human rights bodies of law interact in responding to transnational attacks and threats to nationals, including an assessment of boundaries, when armed conflict commences, and criteria for separating an armed conflict from situations requiring law enforcement. The analysis considers the application of a human rights–based response as a matter of law, as State policy, or as a discretionary decision by the chain of command. The third part outlines the decision-making process summarized in a “decision tree” analysis in Appendix I. Finally, the analysis highlights the link between policing and “normalcy” in providing an important indicator of success during contemporary conflict.

This chapter highlights the exclusionary interpretations applied to the two foundational bodies of law, human rights law and humanitarian law, which regulate the use of force in modern society. It sets out the history of that relationship, their common roots, as well as the impact periods of neglect, forced integration, divergence, and now growing reconciliation have had on their interface. The analysis highlights that masked behind the exclusionary arguments is the reality that human rights norms have always been an integral part of humanitarian law, and military forces have long had to apply a law enforcement approach during armed conflict. As States have increasingly had to address threats posed by organized armed groups operating among the people, often in the ungoverned spaces of the world, they are placed in a position of considering not only the overlap of these two bodies of law but also their increasing convergence in application.

This concluding chapter discusses the type of education, training, and other preparation that could be considered in order to prepare legal advisors to provide operational law advice in the complex security environment of the twenty-first century. The analysis discusses the need to incorporate the lessons learned from the post-9/11 period, to view contemporary conflict as occurring on a much broader continuum of violence, to encourage the academic community to ground their theoretical work in the world of practice, and to seek to adapt to rather than resist the changing legal and security landscape.