1. Amelie Theussen Center for War Studies, University of Southern Denmark
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?