Legally empowered C-IED enterprises

By Paul Amoroso, an explosive hazards specialist at Assessed Mitigation Options (AMO) consultancy

As part of a series of articles related to national and regional Counter IED (C-IED) efforts, the author has discussed amongst other issues, the need to build a C-IED enterprise to counter the IED system.1 A C-IED enterprise is the collective term to describe all initiatives, activities, assistance, capabilities and capacities that contribute to the C-IED efforts2 intended to at least match but ideally overmatch the threat posed by the use or threatened use of IEDs. It can involve anything which is intended to predict discover or detect, prevent, protect against, respond to or neutralise, recover from or exploit, mitigate against, or deter IED attacks. This article will seek to outline the need for legally empowered C-IED enterprises through an appropriate legal framework which matches the C-IED approach taken by the State. The development of an appropriate national C-IED approach linked to a supporting legal framework under which a national C-IED enterprise is undertaken, will support internal coherence, a cooperative culture, and collaborative efforts between members within the enterprise. This is best achieved when it is captured in appropriate legislation which clearly identifies each stakeholder’s roles, duties, responsibilities, jurisdictions, and interrelationships. Such an approach may reduce the inevitable turf battles, jockeying for positions of power and influence and unnecessary competition which often arises when various entities compete for resources and budgets. It can also reduce the challenges faced in sharing information between C-IED stakeholders, which is essential for an effective C-IED enterprise. The East African IGAD3 regional C-IED strategy proposes two approaches to national C-IED strategies, namely a criminal justice model approach and a war model approach. A criminal justice model approach to C-IED may best be suited for low intensity IED threat environments while a war model approach may be more suited for high-threat IED threat environments which are non-permissive to state security forces. In addition to a criminal justice or war model approach, there is also the potential for a state to undertake C-IED under a counter-terrorism (CT)4 or a counter insurgency (COIN) approach. We will first examine what is meant by the concept of the legal framework under which a national C-IED enterprise is undertaken.

LEGAL FRAMEWORK OF A C-IED ENTERPRISE

For this paper, legal framework refers to the rules, rights, and obligations that all members of the C-IED stakeholder community must operate under, as set out in a system of legal documents. The documents within a legal framework can include, inter alia, a country’s constitution, legislation, and policy regulations as well as contracts. This set of legal documents which make up the legal framework of a national C-IED enterprise will vary depending on the C-IED approach taken by the state.

CRIMINAL JUSTICE MODEL APPROACH TO C-IED

The UNIDIR capability maturity model self-assessment tool states, “effective security sector governance and compliance within the rule of law are fundamental to all successful C-IED activities.”5 The suitable national legislation prohibiting all activities associated with the development, acquisition of components, manufacture and use of IEDs,6 is the upstream element of a criminal justice model approach to C-IED, with ‘judicial process’ being the complementary downstream component.7 A state may be proactive in establishing a national C-IED enterprise due to regional use and the fear of spillover from neighboring states. In such a scenario, a state may choose to treat IED use as a criminal offence using existing legislation; however such legislation may need to be amended. Legal reforms may be necessary to establish the required legislative instruments, government policies and legal powers to empower a criminal justice model approach. While no comprehensive international instrument currently exists to address the threat posed by IEDs,8 where possible reference should be made to supporting national and international instruments when undertaking such legal reforms. An example of a potential national instrument would be amending existing national CT legislation to account for IED use, if not already covered. A criminal justice model approach to C-IED can involve national police, intelligence, and security agencies (civilian security forces) taking primacy to prevent, pre-empt, respond to, and reduce the use and threatened use as well as the impact of IEDs within a State. This includes IED exploitation of IED incident scenes as well as the subsequent exploitation of information recorded and evidence recovered primarily in support of building judicial cases for prosecution within the state’s legal system. Such prosecution can be against IED network personnel,9 IED materiel supply chains10 and the processes of the IED system.11

Figure 1. Possible IED Network Personnel

In a criminal justice model approach, the military may be used in an internal security role that is supportive of civilian security forces. This may be necessary when resource requirements are beyond the capabilities and or capacity of the civilian security forces and are used as such for a limited period of time and or for defined tasks. In States where the primacy for specialized state security capabilities such as defeat the device capabilities12,13 reside permanently with the military, the related military personnel may operate in support of or under civil authority.

WAR MODEL APPROACH TO C-IED

In a war model approach to C-IED, the military have primacy in developing and implementing strategies and activities to counter the use of IEDs. This approach may be appropriate when IED use has resulted in non-permissive ungoverned space(s) across or within areas of a State, making activities by police or other elements of a state’s security apparatus not possible. According to the IGAD C-IED strategy, the military should only be employed in countering the use of IEDs after the advantages, disadvantages, and risks of using military personnel have been considered. Potential consequences in using a military-led response to IEDs include:

  • Heightened risk of undermining democratic principles and the rule of law;
  • Increased civilian-military tensions regarding the legitimacy of the controlled use of violence or use of force against non-state actors;
  • Ineffective local population engagement due to distrust of state military or lack of ability to protect those who do engage with the State’s military from reprisal attacks.

A war model approach to C-IED may have less of an emphasis on building cases for the judicial prosecution of the IED system but focussed more on generating intelligence products for use in intelligence led operations against the IED system. However this is not to say that under a war model approach legal prosecution of the IED system cannot take place or intelligence led operations cannot be supported under a criminal justice model approach, provided they are legally empowered to do so. A tactical approach involving the demolition or counter charge clearance of IEDs, viewing them as counter mobility obstacles, may at times be necessary. Such counter charge clearance of IEDs places little or no emphasis on IED exploitation and may take place under combat conditions or other situations when mobility is essential and operational urgency precludes longer responses. Such counter charge clearance of IEDs may be considered as a combat engineering approach to C-IED.

COUNTER TERRORISM (CT) APPROACH TO C-IED

In a situation in which an IED threat emerges within a state and establishes itself without the state being capable of implementing effective C-IED efforts to counter them, the state may choose to draft new legislation which considers IED use as a terrorist rather than a criminal offence. This may include the passing of special or emergency powers which could include terrorism courts, special criminal courts, non-jury courts or similar. A CT approach to the use of IEDs could involve all proactive and reactive efforts to deter, prevent and counter IED use through a broad spectrum of law enforcement, political, psychological, social, economic and (para-) military efforts. CT approaches can be civilian security force or at times military led, in which case it can typically involve specialist military units, or it can be a hybrid of civilian and military elements working together. An example of hybrid CT approach may be the combination of military EOD and special forces units working under or alongside civilian intelligence, operations and investigations personnel.14

COUNTER INSURGENCY (COIN) APPROACH TO C-IED

An alternative to the IGAD war model approach to C-IED could be a COIN approach in which IED use is part of an insurgency within a State. In such situations, IEDs are typically but one of several weapon systems and tactics used by a non-state actor intended to undermine and replace the existing state. In such circumstances the state may use their own military or paramilitary forces in an internal security role, and, or involve regional or international coalitions. A COIN approach involves C-IED efforts being undertaken within a wider COIN strategy, in which winning the hearts and minds and maintaining legitimacy in the eyes of the local populace is seen as central to the efforts being undertaken. This approach intends to deprive the IED system of their support base and to gain vital information on them. To achieve this selective political, economic and social reforms, civil actions and psychological operations are used in support of efforts to counter their use. The theory of COIN is that from secure bases larger and larger parts of the insurgent controlled areas of influence are made non-permissive to them, as the security forces increase their own freedom of activity in these areas. Although there is no defined template for the conduct of COIN operations, it may involve disrupt, clear, hold, build and deter/deny phases. Various C-IED efforts can be involved in all or parts of these phases of a COIN campaign, depending on the use of IEDs within the insurgency and the COIN campaign structure.

Various legal instruments will be part of any COIN approach to C-IED. In the case of C-IED being part of an internal security COIN campaign, the legal basis and relationship between various elements of the state security apparatus and the C-IED enterprise needs to be clearly set out. This is particularly important in relation to the handling and use of information and evidence in the investigation of the IED system. Different levels of information and evidence handling standards will be needed whether they are to be used to build legal cases against the IED system or primarily used in support of intelligence led operations. In the case of C-IED being part of a multinational coalition COIN campaign, various Status Of Forces Agreements (SOFA), Status Of Mission Agreements (SOMA), Memorandums Of Understanding (MOU) and other legal instruments need to be in place to ensure the effective and efficient operation of the C-IED enterprise which is to be established and maintained as part of the wider COIN campaign. For example, in the case that IED exploitation is to involve support and assistance from a coalition partner the protocols for the exchange of information and evidence needs to be clearly established to optimize understanding and other efforts that make up the C-IED enterprise. In particular, this may require an agreement on the appropriate handling of biometric information between the states involved.

ADAPTING THE LEGAL FRAMEWORK OF A C-IED ENTERPRISE

According to the IGAD C-IED strategy, a war model approach to C-IED may ‘prove preferable at the initial stage of countering certain IED environments but should continuously be framed in terms of and tied to goals of transition to the criminal justice model for durable C-IED capabilities and environment shaping.’ This transition from a war model to a criminal justice model approach is an important one, in that it highlights the potential need for change in the approach and hence legal framework under which C-IED is undertaken as a national C-IED enterprise evolves. There are a multitude of reasons why this change in approach to C-IED may be necessary with the need to account for changes in the IED threat or the maturing of the C-IED enterprise being two common reasons. A state may, for example, initially have an emerging IED threat which is addressed through a criminal justice model approach, but in time their use develops to undermine the state and overwhelm its capacity15 to counter them. In such a case the state may need to transition to a CT approach which is appropriately legally empowered. In situations where the threat significantly escalates and an insurgency emerges a COIN approach may need to be adapted and in a worst-case scenario a war model approach may be needed. This is not to say that such a stepwise approach may be appropriate or possible in all scenarios. Alternatively, there is the potential to transition from a criminal justice model approach straight to a COIN or war model approach as well as the possibility of a state faced with a new IED threat initially adapting a CT, COIN or war model approach. In all cases the approach taken should consider the threat, its scale, the capabilities16 existing in the state and their associated capacities, the desired end state and the means it wishes to develop for its C-IED enterprise.

One means to consider the various approaches to C-IED outlined, is to consider them as variations in how national C-IED may legally be approached and that they have overlap in certain elements. This can lead us to model them as a C-IED spectrum of approaches as illustrated in Figure 2.

Figure 2 C-IED spectrum of approaches

The utility of such a spectrum of C-IED approaches is that it can be used to illustrate the overlap between the various approaches and avoid the perspective of each approach being siloed. It also lends itself to the idea that over time a State may transition to different points along the spectrum depending on variables such as changes in the IED threat and the state’s capabilities and capacities to counter their use as the national C-IED enterprise matures. Finally it can also be used as a tool to assist in the planning and development of a national C-IED enterprise in terms of a baseline assessment establishing understanding of the assessed current use of IEDs and existing C-IED capabilities and capacities. Various factors may be considered in determining existing C-IED capabilities and capacities of which those given by the acronym FILLED-OIL-TIPP17 is used in the example provided in Figure 3.

Figure 3 Assessing C-IED Capability and Capacity Gaps for National C-IED Enterprises

Once existing C-IED capabilities and capacities are determined, the desired national C-IED enterprise should be agreed upon. By comparison of existing capabilities and capacities with the desired national C-IED enterprise, gaps can be determined which can then be used to inform a C-IED strategy in terms of the appropriate ways and means that can facilitate the development of the planned national C-IED enterprise. From such a strategy a national C-IED action plan can be developed. For example, IEDs may appear as part of a terrorist campaign within a state with well-developed capabilities and capacities to counter their use allowing a criminal justice model or CT approach. Alternatively, if there are only limited or non-existent capabilities and capacities an initial combat engineering approach may be necessary. In time as capabilities are developed and capacities are generated a transition to a criminal justice model or CT approach can be made.

EXAMPLES OF C-IED LEGISLATION

C-IED legislation can be specific in support of a C-IED enterprise or can be part of wider law enforcement, security and defence legislation. For  example, regulations to control the access to key IED components are needed as part of any coherent C-IED enterprise. In this regard, the EU has made significant strides to increase control of access to potential IED precursor chemicals which is an example of specific C-IED legislation. The UNIDIR capability maturity model self-assessment tool tells us national legislation and regulations should cover the lawful use of explosives (and explosive precursors). 18 Such regulations should consider: 19

  • The lawful acquisition, control, transport, storage and end use of explosives by civilian entities (e.g. industries associated with mining, quarrying, exploration and extraction of oil and gas, and civil engineering and demolition);
  • The acquisition, storage and use of ammunition and explosives by the armed forces and the law enforcement community;
  • The storage and transport of explosives.

Wider security legislation which can have multiple security benefits can be enacted that can support a national C-IED enterprise. Examples of such legislation include counter terrorism financing and money laundering legislation. Similarly legislation to regulate new and emerging technologies and processes that can be employed by IED networks can have multiple security benefits; however all such legislation needs to consider unintended consequences which may interfere with the legitimate use and employment of emerging technologies and processes and hence negatively impact trade and commerce.

CONCLUSION

Owing to the nuances of the IED threat faced by a state along with the uniqueness of individual state legal systems coupled with the individuality of respective national C-IED enterprises, the legal approach taken to counter the use or threatened use of IEDs will vary significantly. When a State understands the approach taken in countering IEDs along with the desired end state of their C-IED enterprise, the gap between existing and desired capabilities and capacities can be identified. This in turn can be used to inform the optimal ways and required means, which in turn will inform the C-IED strategy to be developed and related national C-IED action plan. Regardless of whether a State is undertaking C-IED under a criminal justice, a CT, a COIN or a war model approach it needs to be defined legally under the appropriate legal framework. ■

FOOTNOTES

  1. An IED system is the combination of people, processes and material that go into supporting, funding, procuring, manufacturing, transporting, targeting, preparing, emplacing, executing and publicising any element of an IED attack, including the indoctrination, training and life support of the persons involved.
  2. C-IED efforts refer to all initiatives, activities, assistance, capabilities and capacities that collectively make up a C-IED enterprise. C-IED efforts can include, inter alia, training, mentoring, advising, accompanying, assisting, technology and equipment provision and intelligence support.
  3. The East African In tergovernmental Authority on Development (IGAD) was created in 1996 to supersede the Intergovernmental Authority on Drought and Development (IGADD) which was founded in 1986 to mitigate the effects of the recurring severe droughts and other natural disasters that resulted in widespread famine, ecological degradation and economic hardship in the region. Djibouti, Ethiopia, Kenya, Somalia, Sudan and Uganda – acted through the UN to establish the IGADD for development and drought control in their region. Eritrea became the seventh member after attaining independence in 1993 and in 2011 South Sudan joined IGAD as the eighth member state. With the new emerging political and socio-economic challenges, the assembly of Heads of State and Government, meeting in Addis Ababa in April 1995, resolved to revitalize IGADD and expand areas of cooperation among Member States. The new and revitalized IGAD was launched during the 5th Summit of IGAD Assembly of Heads of State and Government held in November 1996 in Djibouti. The Summit endorsed the decision to enhance regional cooperation in the priority areas of food security and environmental protection, economic cooperation, regional integration and social development, peace and security.
  4. Terrorism is taken to refer to an act involving (destructive) physical violence intended to cause damage to person(s) and or public or private infrastructure, when the purpose of such act, by its nature or context, is to intimidate or to compel a state, population or organization to undertake or to abstain from undertaking any specific action. The UN has not adopted a single definition for terrorism. Noting that there are numerous definitions of terrorism, an aggregate of those elements which recur most frequently have resulted in the following: Terrorism is a tactic primarily used by non-state actors, which can be an entity either with no clear leadership or one without hierarchical organization (i.e., one that does have clear command and control), to create a psychological climate of fear within the civilian population using threats or actions in order to compensate for the legitimate political power they do not possess. It can be distinguished from guerrilla warfare, criminal abduction, or economic sabotage, although organizations that practice terror can resort to these too. Source: Adapted from Security Risk Management Manual, UN Security Management System, Issued 11 Dec 2015, Revised Oct 2017
  5. (UNIDIR 2020, 20)
  6. Ibid.
  7. Ibid, 20.
  8. IEDs are addressed under the Convention on Certain Conventional Weapons and its Additional Protocol II. IEDs are also considered in the 2017 UNGA resolution 2370 on threats posed by IEDs, unanimously adopted by the UN security council, which called on all States to eliminate the supply of weapons, including but not limited to IED components, and their acquisition to those involved in terrorist acts. Resolution 2370, is the first dedicated to addressing the linkage between weaponry and terrorist acts, thus acting as the key UN document linking arms control to counter terrorism.
  9. Personnel needed to support IED attacks involving those directly involved in the supply, transport, manufacture, planning, emplacement, execution of an attack as well as those indirectly involved in such activities as financing and publicising attacks and includes those who facilitate such activities actively or passively
  10. IED materiel supply chains refer to all elements including organisations, people, activities, information and resources of an IED system involved in the procurement, manufacture, possession, storage, importation, transport and sale of IED components and other items used to execute IED attacks. IED components can involve power sources, initiators, energetic material (often referred to simply as ‘explosives’ or main charges), containers, enhancements and switches.
  11. IED system processes refer to all actions or steps used by an IED system to facilitate the supply, transport, manufacture, planning, emplacement, or execution of an IED attack including financial and publicising activities.
  12. Defeat the device refers to a defensive line of operation involving a suite of responsive C-IED efforts which include all actions and activities designed to reduce the number of or the effect of IED initiations. Many C-IED efforts can be considered defeat the device activities, including, mobility planning advice; and Force Protection (FP) advice; search activities; route clearance package capabilities; Conventional Munitions Disposal (CMD) activities; Electronic Countermeasure (ECM) assets; and Improvised Device Disposal (IEDD) activities.
  13. In some cases, Weapons Technical Intelligence (WTI), host nation support from one state to an IED affected state and local population engagement have been considered as defeat the device activities. The author contends that WTI is more appropriately considered as an enabler to defeat the device and attack the network / degrade the system activities. Similarly, host nation support can be better considered as a component of C-IED regional and international cooperation. Finally, local population engagement is considered as part of Understanding and Preparation within a C-IED enterprise.
  14. Source: Identifying Counter Improvised Explosive Device Strategic Principles for East Africa, Paul Amoroso, MA Strategic Studies Thesis, National University of Ireland, Cork, School of History, September 2022.
  15. Capacity refers to the means of an individual/organization to perform assigned duties effectively. This includes human capacity (individual and collective competencies and experience), physical capacity (appropriate assets) and institutional capacity (systems, structures and organisational culture in place).
  16. Capability refers to the means of an organization or entity to be proficient in a stated activity from the collective contribution of assets and competency of individuals and groups to undertake it safely, effectively and efficiently.
  17. FILLED-OIL-TIPP is an acronym for Finances/Funding sources – Infrastructure – Logistics – Legal framework – Equipment – Doctrine & concepts – Organisation – Interoperability – Leadership – Training – Information – Personnel – Policy. It can be used as a tool to support the assessment of capabilities and capacities available to respond to the use of IEDs. From this a gap analysis between what is currently available in terms of capability and capacity and the desired end-state can be undertaken. Such a gap analysis can then inform the capability development and capacity generation roadmap requirements in terms of resource requirements.
  18. (UNIDIR 2020, 20)
  19. (UNIDIR 2020, 20)

 

ABOUT THE AUTHOR

Paul Amoroso is an explosive hazards specialist and has extensive experience as an IED Threat Mitigation Policy Advisor working in East and West Africa. He served in the Irish Army as an IED Disposal and CBRNe officer, up to MNT level, and has extensive tactical, operational, and strategic experience in Peacekeeping Operations in Africa and the Middle East. He has experience in the development of doctrine and policy and was one of the key contributors to the United Nations Improvised Explosive Device Disposal Standards and the United Nations Explosive Ordnance Disposal Military Unit Manual. He works at present in the MENA region on SALW control as well as in wider Africa advising on national and regional C-IED strategies. He has a MSc in Explosive Ordnance Engineering and an MA in Strategic Studies. He runs a consultancy, Assessed Mitigation Options (AMO), which provides advice, support, and training delivery in EOD, C-IED, WAM as well as Personal Security Awareness Training (PSAT) and Hostile Environment Awareness Training (HEAT). This article reflects his own views and not necessarily those of any organisation he has worked for or with in developing these ideas.
Linkedin profile: https://www.linkedin.com/in/paul-amoroso-msc-ma-miexpe-60a63a42/

Download PDF: 25-32 Paul Amoroso article – Legally Empowered C-IED Enterprises – COUNTER-IED REPORT, Winter 2023-24

Counter-IED Report, Winter 2023/24

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