Demarcation between Military and Humanitarian Activities in Afghanistan and the Role of Law

Recent trends towards closer integration of military and humanitarian aspects of post-conflictreconstruction have raised questions as to the legal regime regulating such operations. The lack ofa guiding framework has in practice resulted in suboptimal division of labour between militaryand humanitarian actors, even when common political and humanitarian interests can beidentified.Afghanistan has in recent years seen significant involvement of international politicalactors in both military and humanitarian spheres. A new form of joint military-civilian operationcarried out by so-called ‘Provincial Reconstruction Teams’ (PRTs) has been trialled since 2003.These operations have prompted concerns regarding the dangers of blurring the distinctionbetween military and humanitarian operations in a context of ongoing political instability.Although the clear identification of (unarmed) humanitarian resources is embedded in the law ofarmed conflict, the applicable law in a post-conflict setting is far less clear.This paper begins by outlining the humanitarian and security context of Afghanistan, thebackground to the PRT concept and the difficulties it has faced. The militarization ofhumanitarian activities for ‘hearts and minds’ purposes is found to impact negatively on broaderhumanitarian and stabilisation goals. This effect can be mitigated by greater targeting of militaryendeavours in areas of military comparative advantage.Potentially applicable legal and paralegal frameworks for regulating and encouraging suchtargeting are then examined, and in particular their adequacy in translating previous lessonslearned into operational benefits for the actors and populations concerned.Existing legal and institutional structures are generally found to address the issue onlyperipherally. Soft-law United Nations (UN) guidelines and codes, despite their high degree ofrelevance, have had particularly little impact due to their lack of serious compliance mechanisms.In the present case, political dominance over the post-conflict context has acted to marginalisethe ‘lessons learned’ represented by these soft-law instruments. The suboptimal outcomes of thisapproach, even when measured by the criteria of the political actors themselves, demonstrate thatthe practical dominance of political elements can ultimately act against the interests of the sameactors wielding the political power.The increasing global political focus on effective counter-insurgency suggests thatpolitical structures are increasingly likely to be the means through which thehumanitarian/military interface will b