Abstract and Keywords
This introductory chapter sets out the scope of the analysis to be covered in the book, and the definition of the terms to be used. The three primary legal frameworks — the ius ad bellum, humanitarian law, and human rights — are presented in the context of their relevance to non-state actors, and the relationship between them is examined.
Recent times have provided numerous cases of states using force against individuals and groups outside their territory. The United States has carried out airstrikes targeting and killing individuals in Pakistan and Somalia;1 European states have engaged in force against pirates in the Horn of Africa;2 Colombia bombed a guerrilla rebel base in Ecuador;3 and Turkey was engaged in heavy military operations against Kurdish fighters in Iraq.4 Extraterritorial use of force against non-state actors is clearly not a rare phenomenon. In fact, it is not even new. The oft-cited Caroline Case from 1837,5 involved the British taking forcible measures against Canadian rebels in US territory. Extraterritorial forcible action has taken many forms, ranging from killings to kidnapping, and large-scale military operations. Certain states seem to have had more frequent involvement in actions of this kind, whether as a result of policy or of geo-political circumstance. In 1916, the United States sent troops into Mexico following an attack in the US by Francisco Villa and his men, whom the Mexican government were apparently unable to control,6 while in more recent times the US has used an unmanned aircraft to target and kill alleged Al-Qaeda members driving through the desert of Yemen, as well as targeted strikes in Pakistan and Somalia.7 Israel has sent agents into other countries to kidnap individuals, including Nazi leader Adolph Eichmann, abducted from Argentina in 1960,8 and Israeli citizen Mordechai Vanunu, who was accused of publicizing secret information on Israel’s nuclear capability and was abducted from Rome in 1986.9 The Israeli military was (p. 4 ) deployed extraterritorially in 1976 to rescue hostages from a hijacked airplane in a Ugandan airport.10 In late 2003 Israeli aircraft struck at alleged non-state actor militant camps in Syrian territory,11 and in the summer of 2006, Israel was engaged in an armed conflict with Hezbollah in Lebanon.12
In 1999 Turkish security forces arrested Kurdistan Workers’ Party (‘PKK’) leader Ocalan in Kenya and transferred him to Turkey.13 North Korea has been accused of using force against individuals abroad in circumstances as bizarre as the abduction of a South Korean film director and actress in order to make films for the North Korean leader.14 There have been numerous incidents involving the Democratic Republic of Congo (‘DRC’) and many of its bordering countries which sent state forces to conduct cross-border operations against (both state and) non-state actors.15 Uruguayan agents were involved in the abduction of a Uruguayan trade union leader residing in Argentina.16 All these are but a sample of cases in which states have taken extraterritorial forcible actions against non-state actors.
The issue of these types of operations has gained increased significance ever since 11 September 2001. Following the attacks on that day, the US and other states have described many of their actions as part of a new ‘war on terror’, linking this to everything from full-scale armed conflict in Afghanistan, to the targeted killings mentioned above.17 The non-state actors against whom the measures are taken are not only the familiar local rebel groups operating on a sub-national level, but also transnational groups, with members, support and an agenda that go beyond any national border. The huge advances of recent decades, particularly in communications technology, financial transfers, access to weapons and travel, have facilitated the ease with which groups and individuals can plan and conduct their actions. These advances, as well as the disarray and even complete breakdown of political and government structures such as the former Soviet Union, the former Yugoslavia, Somalia and Afghanistan, have provided a fertile breeding ground in which individuals and groups with criminal and/or political agendas can develop, train and gain possession of weaponry and other capabilities to further their aims.
Many extraterritorial forcible measures against non-state actors are nowadays referred to as part of a ‘war on terror’.18 Not only does terrorism itself have no (p. 5 ) unanimously agreed definition,19 but this ‘war’ is the subject of much controversy, not just with regard to actions taking place under its headings, but also as to whether such a ‘war’ exists and, if it does, then what is its legal and practical meaning.20 Consequently, using the context of terrorism as a frame of reference for the current analysis is perhaps not a useful approach, since it builds on unstable foundations. Individuals, groups, their own actions and the actions taken against them, could fall within and outside the scope of such a study, depending on differing definitions of terrorism and a ‘war on terror’, thus allowing for easy manipulation of the conclusions.21 Instead, the approach taken here is based not on the rhetoric of terrorism, but on the factual and visible phenomenon of extraterritorial use of force against non-state actors. While this is likely to cover many extraterritorial operations taken under the heading of counter-terrorism, the question of whether states or commentators agree upon its name is then not the crucial question. Nevertheless, terrorism and the ‘war on terror’ remain relevant in certain aspects, as will be evident in the section on the relationship between the non-state actor and the territorial state, and especially in the chapter on non-traditional models of conflict, in which the possibility of a ‘war on terror’ as armed conflict will be examined. In general however, the discussion of extraterritorial forcible measures against non-state actors casts a more definable net than extraterritorial counter-terrorism, and includes most of the latter within it, as well as other situations (such as the abductions of Eichmann and Vanunu).
As noted above, states have not been shy in the past of using extraterritorial force against non-state actors and, perhaps even with added vigour, are continuing to do so today. Whatever objections may be raised, it is unlikely that actions of this kind will completely cease in the near future. The framework for addressing these actions is, however, not always clear. Force against non-state actors is sometimes justified by the acting state as being a matter of straightforward self defence.22 In other types of extraterritorial forcible measures, self-defence might not be mentioned, and on occasion the state allegedly responsible will not admit its involvement in the incident.23 Can extraterritorial forcible measures against non-state actors be considered legitimate self-defence under international law? Are those measures that do not conform to the parameters of self-defence necessarily unlawful, or could there be other legal justifications for them? And when these operations do take place, where are the rules to be found against which the manner of the use of force can be assessed—is it the laws of armed conflict or of law enforcement or both? These are some of the questions to be examined. The analysis here was carried out in the period from 2003 to 2007, and (p. 6 ) the arguments and conclusions have remained unaffected since. Nonetheless, a number of sources since 2008 have been referred to as necessary during the subsequent adaption, though there are endless further pertinent sources from this period as well as new ones being produced every minute, many of which could not be mentioned here.
2. The legal frameworks
There are three primary areas of international law that are directly relevant to answering these questions: The UN Charter and framework of international law regulating the resort to force in the territory of other states;24 the law of armed conflict, often referred to as international humanitarian law (‘IHL’);25 and the law enforcement framework found in international human rights law.26 Whilst it is possible to take one of these frameworks in isolation, and for instance look at the applicability of international humanitarian law to the ‘war on terror’, such an approach risks missing the bigger picture, and only providing a partial answer to the legality of the operations under examination. The starting point is, therefore, a set of factual circumstances as encompassed in the notion of extraterritorial forcible measures against non-state actors, and sets out to examine all the primary potentially applicable laws and how these might assist in the determination of lawfulness of these operations. Not all three frameworks will always be applicable, and indeed in some cases the greatest difficulty revolves around the debate over the applicability of a particular set of laws and the question of which rules and principles should regulate the action (eg, is the situation an armed conflict to which the rules of armed conflict apply?).27 This only heightens the need to cover all three frameworks in the same place, so as to strengthen the chance that if appropriate rules are not found in one set of laws, then a solution might be found in another.
Navigating between the different frameworks is, however, not a simple matter, and the relationships between them are anything but clear. The international law system consists of many different branches, and the risk of fragmentation is well recognized.28 The debates are often concerned with the search for a solution when faced with different—even conflicting—rules stemming from two branches of (p. 7 ) international law which could both apply simultaneously to the situation at hand. In the context of our current scope this type of question is most apparent in the relationship between international humanitarian law and international human rights law. The obvious example is that of a case of armed conflict during which a combatant deliberately takes aim and fires across a valley at an opposing combatant, despite the latter not having presented an immediate threat at that point (indeed, perhaps not even holding a weapon). Under international humanitarian law this would generally be considered a lawful—and indeed common—act of war.29 Under international human rights law, however, intentionally taking the life of an individual who does not at that moment pose a direct serious threat would not accord with the obligation to use lethal force only as the very last option. This and other similar circumstances are addressed in the context of the debates on parallel applicability of the two branches of law. The solutions on offer revolve around principles such as lex specialis and the concept of complementarity. These can be mechanisms for resolving apparent clashes between competing rules by asserting the primacy of one rule over another. Alternatively, they can serve to highlight the potential of either reinforcing each other; serving as interpretative guidelines for each other; or filling in gaps that might appear when using just one of the rules. While the precise methods for implementing the theories of parallel applicability are still in the process of clarification, it does appear that the issue is receiving significant attention.30
The obstacles to safe navigation between the frameworks do not, however, end with the problems of parallel applicability. Significant challenges can arise from situations in which the different frameworks initially appear to operate in isolation of each other. Indeed, in theory, certain separations are meant to exist between the frameworks, in particular between the rules on the resort to force and the rules regulating the use of force. In the context of armed conflict, this is known as the distinction between the ius ad bellum—the laws regulating the resort to armed force and issues such as self-defence, and the ius in bello—the laws regulating the conduct of the parties to an armed conflict. This means that whether or not the resort to force had support in law, once force is in fact being used, there is a need to turn to the laws regulating its conduct regardless of the decision as to the legality of the operation. There are a number of solid reasons for maintaining this separation between the frameworks. The ius in bello, at least in the context of international armed conflict, is predicated upon an equality of belligerents and the accompanying expectation of reciprocity. Thus, for example, opposing parties to the conflict are obliged to adhere to rules on treatment of prisoners of war, and expect that their own combatants taken captive by the other party will receive the same protection. Were the rules to apply differently to the (p. 8 ) two parties as a result of one side’s unlawful action under the ius ad bellum, this equality and reciprocity would be undermined. Were a state to receive reduced protections and benefits of the ius in bello due to its initial violation of the ius ad bellum, there is a danger of it seeing no advantage to adhering to the laws on conduct, and consequently acting outside the law altogether. Furthermore, the idea that the way in which the ius in bello is to be applied might depend on the actions of the parties under the ius ad bellum will, in many cases, be unworkable. Any party to a conflict is likely to claim that it is the opposing state that has violated the ius ad bellum, and the determination of legality on the resort to force is notoriously fraught with both legal debates and political minefields. Indeed, this is apparent in the difficulty of defining the crime of aggression in the statute of the International Criminal Court.31
Notwithstanding the above, this separation is not necessarily always maintainable. In particular, it may be the case that even after an armed conflict has begun and the ius in bello has become applicable, the ius ad bellum may continue to be relevant. An example of this would be the expansion of the conflict to a new geographical area, which would give rise to a claim that this violates the principle of proportionality as encompassed in the ius ad bellum rules of self-defence.32 Indeed, the proportionality of self-defence under the ius ad bellum is measured in part by the scale of the operations undertaken by the defending state, and whether this is proportionate to its legitimate need to defend itself. In most circumstances this assessment will inevitably be possible only once these military operations have started and the scale is apparent. Consequently, the ius ad bellum assessment will be taking place at a time in which military operations—to which the ius in bello applies—have already begun. This is, however, a very narrow opening in the separating wall, which allows for the ius ad bellum rules to remain relevant after the conflict started. It does not, therefore, stand in contradiction to the earlier stated concept of separation, according to which the application of the ius in bello remains unaffected by the outcome of the ius ad bellum determination.
The relationship between these frameworks does not apply in the same manner outside of the arena of classic international armed conflicts. In non-international armed conflicts taking place within the territory of a state, the ius ad bellum framework loses its relevance. Whilst there are international laws which can potentially curb and regulate internal use of force—eg international human rights law and the laws of non-international armed conflict—the nature of statehood implies a certain authority to use force within the state’s own territory. The ius ad bellum framework is designed to restrict the use of force between states, rather than any (p. 9 ) internal exercise of force. Were this examination, therefore focusing on internal situations, the primary frameworks of relevance would therefore be just two out of the three, international human rights law and international humanitarian law (the ius in bello) applicable in non-international conflicts. However, our scope addresses a different set of circumstances, one which is neither covered by the inter-state model of international armed conflict, nor by the notion of internal conflicts. As will be seen in Part II, in those cases where the extraterritorial force against non-state actors is said to rise above the threshold of armed conflict, there is a strong argument to be made that the applicable rules of international humanitarian law should be those designed for non-international armed conflict, since the force is between a state and a non-state actor, and not an international conflict between opposing states.33 At the same time, unless the forcible measures are taking place on the high seas (eg against pirates) we are nevertheless faced with cases in which one state is using force on the territory of another state. Consequently, as will be explored in the next three chapters, the rules of the ius ad bellum are of crucial concern and do indeed serve to assess the legality of the resort to force. Accordingly, we are faced with situations in which the ius ad bellum might be applicable to the resort to force, whilst the actual regulation of the force would be in the context of the rules on non-international conflict. This might, prima facie, appear to contradict the earlier assertion that the ius ad bellum is relevant to international armed conflict rather than non-international conflict. However, the key to untangling this knot is in the understanding that there are two simultaneous relationships occurring. This can be seen in the distinction between the inter-state sphere, as opposed to the regulation of force against the non-state actor. In other words, when state A resorts to force against an individual or group located in state B, there is both a question of whether state A has violated the sovereignty of state B (or acted in any unlawful manner insofar as the inter-state relationship is concerned) and the separate question of the rules regulating the actual use of force against the non-state actor, be they human rights law, IHL (or both). The latter question will necessitate a determination of the existence of an armed conflict based on the accepted threshold tests, which are based on identifying the parties and the nature of the violence, rather than on questions of the ius ad bellum.34 Here too, therefore, there is an element of separation between the legal frameworks.
An added complexity to this type of situation occurs when a single forcible operation against the non-state actor might be considered to involve a level of violence below the threshold for non-international armed conflict, but is argued to be part of a wider ongoing armed conflict occurring in other territories. There are two stages to approaching this argument. First, there is the question of whether this operation can indeed be considered part of a wider conflict. This is primarily dependant on factual assessments of matters such as the connections between (p. 10 ) the targeted non-state actor and the other operations said to be part of this conflict. As will be seen in the case of the ‘war on terror’, the reality is often far from the rhetoric and in many cases claiming the existence of a single armed conflict encompassing many distanced operations has little support in the facts.35 Secondly, if, nonetheless, this incident might be part of an existing conflict, and therefore one to which the ius in bello is applicable, the ius ad bellum will still be of relevance in cases where this operation is taking place in the territory of a new state. In such a case, the rules of the ius ad bellum would serve to assess the legality of the resort to a forcible operation on the soil of another state, and would be the primary framework for the inter-state relationship. The ius in bello laws, on the other hand, would serve as a source of rules for regulating the actual use of force against the non-state actor.36
Assessing the actual use of force against the non-state actor will also give rise to the question of applicability of international human rights law and how this legal framework relates to the other frameworks. The relationship between human rights law and international humanitarian law has already been mentioned earlier and will be further explored in a later chapter. However, the connection between international human rights law and the ius ad bellum is a relationship which has received comparatively less attention than the issues dealt with above.37 At first glance, there would appear to be little connection. Whether the resort to a forcible operation on the territory of another state has amounted to a violation of the ius ad bellum is a matter that belongs to the sphere of the inter-state relationship, and would need to be examined in the context of that set of rules. The human rights framework would, conversely, belong to the sphere of the state-individual, and would provide rules to assist in examining the way in which the state acted towards the individual.38 There is, however, at least one point in which the two sets of rules could cross paths. The assessment of whether a violation of human rights has occurred will in many cases take into account the obligation that the state will have acted in accordance with the law.39 This could be seen, for example, when a state sends its agents into another state—with no approval by the latter—in order to forcibly detain an individual and return him/her to stand trial, as in the Eichmann abduction case.40 In this situation there are a number of (p. 11 ) different human rights concerns including how this impacts upon the subsequent trial, and possible ill-treatment in the process of abduction. However, there is also a question of whether the inter-state aspect permeates the human rights sphere and the state-individual relationship. If the action is deemed unlawful with respect to the inter-state sphere, in that the forcible operation on foreign territory does not accord with the appropriate rules of international law, then it could be argued that, regardless of other human rights aspects, this illegality means that the operation as a whole was not in accordance with the law, as required by the human rights obligations. Conversely, if one were to maintain the separation between the two frameworks of law, it could be argued that adherence to the law required by the human rights obligations refers to domestic matters such as issuing an arrest warrant, and not to international rules on use of force and state sovereignty. This potential link between the laws and how it might impact upon determination of human rights violations will be returned to in the chapters on international human rights law.
As can be seen by the examples cited at the start of this section, the scope of operations covered is wider than the struggle between the US and its allies against those referred to under the name of Al-Qaeda. Taking forcible measures against non-state actors located outside the state’s borders can include a wide array of situations. There will therefore be an analysis and clarification of how to assess whether the use of force was lawful, and how to identify the applicable legal framework and rules according to which they are to be assessed and, hopefully, regulated. Following this introductory section explaining the rationale and scope of the work, there will be three main parts, each comprised of three chapters, containing an examination of the legal frameworks and applicable rules.
Part I focuses upon the inter-state aspects, and on the questions surrounding the legality of resorting to force against a non-state actor located in the territory of another state. The chapters in Part I will look at the notion of self-defence against non-state actors and how this fits within the traditional inter-state rules governing resort to force; the parameters of self-defence against non-state actors; and the possibility of resort to extraterritorial force outside the framework of self-defence.
Part II deals with the framework of international humanitarian law and how this branch of law addresses issues related to extraterritorial forcible measures against non-state actors. The traditional models of armed conflict will be introduced in the first chapter of Part II, together with the possibility of these being applicable to extraterritorial use of force against non-state actors. The next chapter in this part will address the debates surrounding the ‘war on terror’ as an armed conflict, and the claims that this is a new model of conflict which demands new (p. 12 ) rules. The final chapter will address the primary relevant rules of IHL relating to status of individuals and members of armed groups, and some of the rules relating to use of force against them, if the circumstances are defined as armed conflict, highlighting problems that arise in the context of hostilities involving non-state actors.
Part III covers the framework of international human rights law. The first chapter in this part will address some of the primarily affected rights in the context of operations involving killings and abductions; the second chapter will provide an extensive examination of the possibility of international human rights law being applicable to extraterritorial operations. Additionally, should the operations be occurring in the context of armed conflict, the final chapter of this part will present the issue of parallel applicability of human rights law and IHL.
The concluding chapter of this work will provide a brief recapitulation of the main issues raised throughout the preceding chapters, and draw them together by demonstrating their applicability and interaction in the context of specific cases.
This examination of the applicable laws will inevitably bring up some of the most contentious areas in each of the legal frameworks, including the question of self-defence against non-state actors;41 attacks against civilians directly participating in hostilities;42 and extraterritorial applicability of human rights law.43 Some of these areas are themselves at the heart of this analysis, and as such will receive extensive attention. Other matters are directly relevant, but the debate surrounding them goes far beyond the scope here, and it would be impossible to cover them all in the manner of works devoted to each issue alone. Perhaps the most challenging task here is the need to address such a wide variety of legal issues across a number of legal fields, encountering numerous legal controversies along the way, in the knowledge that one single work cannot provide all the answers to all these long-standing debates. In that respect, in some controversial areas, such as the right of self-defence against non-state actors, the classification of certain complex types of conflicts, and extraterritorial applicability of human rights obligations, specific positions and approaches to the law are advocated; other issues, such as the status of members of armed groups in non-international conflicts and the modalities of parallel application of human rights law and international humanitarian law, are all analysed but not always with definitive solutions. The decision to nonetheless proceed with a project encompassing all these areas was based on the need to address factual circumstances in a manner that includes all the primary aspects of international law which must be engaged when assessing the situations at hand. Without such an approach, the types of operations and conflicts covered would be examined each time from a different angle and in the context of specific legal rules, but with a risk of missing the larger (p. 13 ) picture and the way these different approaches may impact upon each other. On all matters raised, therefore, the focus here will be to provide a clear overview of the terrain in which the debate takes place; the fundamental issues at hand; and to see how the different interpretations and positions in the debates can affect the question of extraterritorial force against non-state actors. Along the way, certain positions and views will be favoured, and this will be explained but, recognizing that in many of these areas there are ongoing controversies, opposing opinions and potential alternative approaches will also be presented. Many of these are clearly contentious issues, especially when referring to matters surrounding the question of a ‘war on terror’. Anyone familiar with some of the debates covered is likely to recognize that certain views advocated might be seen as supporting one side of a debate, while the position preferred in other matters would be more in line with the opposing side. There will be an engagement in an objective analysis of the legal frameworks and applicable rules.
A number of the issues analysed also raise questions about the adequacy of the law in certain areas, and the claim of a need for development. These will be examined, and in some of the cases these calls might be supported by opinions raised. Overall however, this is neither a call for new laws, nor a proposal for changes; rather, it is an examination of the issues at hand in light of existing international law, and of how international law as it stands can assist in regulating the matters under discussion. Insofar as any legal inadequacies might be unearthed by the foray into these issues, elaborate proposals for development and possible changes will have to be the subject of a separate work. Moreover, while in some cases past developments are relevant this is not an historical exposé on the development of rules on the use of force. It is international law as it currently stands which is the foundation of this analysis.
The use of language is crucial to understanding the debate, and many controversies exist regarding the terms and definitions used in connection with this issue. There is a constant danger of getting caught up in the rhetoric. It is therefore impossible to continue without a brief excursion into the realm of semantics. Additionally, explaining the terms of reference used will set out the scope of the issues to be covered within this work.
The actions scrutinized will be those taking place outside the recognized borders of the state. Situations in which a state exercises effective control of a territory that is not its own, such as an occupied territory, will not be examined. While (p. 14 ) much of the analysis with regard to extraterritoriality is directly relevant to occupied territories, and occupation situations will be mentioned in certain contexts, the exercise of effective control can create fundamental practical and legal differences.44 The examples mentioned above took place outside both the borders and effective control of territory by the state, and it is these types of cases which will be focused upon. While these measures could also be taking place in neutral areas such as on the high seas, as can be seen in the case of force against pirates,45 a presumption is made that the vast majority of extraterritorial forcible measures occur in the territory of another state.46 Throughout, the state taking the extraterritorial measures will be referred to as the ‘outside state’ and the state on whose territory such measures are taking place will be the ‘territorial state’.
4.2 Forcible measures
The focus here is on measures involving the use of force by the outside state. Extradition requests (which may also lead to use of force by the territorial state), financial steps (such as freezing of assets), and other non-forcible measures are not included. Forcible measures can range from full-scale military operations to undercover agents sent to kill an individual or to capture by force an individual (in many cases amounting to what appear to be forced abductions intended to remove the individual from his/her current location and place them in detention elsewhere). Furthermore, while the possibility of consent by the territorial state might on occasion be mentioned in a specific context, the focus is on forcible measures taken without the consent of the territorial state. Finally, the analysis is of unilateral state action, and not of UN sanctioned or multi-national peace support operations.47
4.3 Non-state actors
Individuals or groups who are not acting on behalf of a state, are non-state actors. The key to the distinction made here is that the non-state actor is not acting under control and on behalf of a state, and is not a part (de facto or de jure) of any state (p. 15 ) apparatus, thus maintaining an identity and existence independent of the state. It is, however, recognized that in many cases there may be links between the non-state actor and a state, including the sharing of ideology or receipt of forms of support. However, unless the non-state actor is under the control of a state, or its actions can be attributed to a state,48 then for the purposes of the issues raised it will be considered to be a non-state actor.
While in many cases the individuals might belong to groups controversially branded as terrorists, other types of groups might also be subjected to these measures, for instance extraterritorial forcible measures have been contemplated by the US in dealing with groups involved in the supply and trafficking of narcotics.49 It should also be noted that individual persons can be at the receiving end of extraterritorial forcible measures not on account of the activities of any group to which they might belong, as in the case of Mordechai Vanunu’s abduction in Rome by Israeli agents and subsequent transportation to Israel to stand trial for revealing secret information on Israel’s nuclear capabilities.50
The non-state actor may be one which operates within the state as well as extraterritorially; one which is based only in a neighbouring state; or a transnational group not limited to one state. The deciding factor for inclusion within the current scope, is not the geographical nature of the non-state actor (which is not always easily defined), but the nature of the operations taken against it—the focus is on operations that take place outside the state’s borders.
The role of non-state actors in the international legal system is a subject of continuing and growing discussion. It encompasses numerous areas of international law and presents considerable challenges therein. Some of these challenges will be (p. 16 ) dealt with in this work and, as will be apparent from the first chapter, are in fact at the heart of certain questions under examination.
Significant concern is raised by the considerable effect non-state actors have over the enjoyment of human rights by individuals all over the world.51 This control is evident in many shapes and forms including the practice of multi-national corporations; rebel groups during armed conflict; the policies of international financial bodies; domestic violence; private education institutions; privatization of penal and security functions; and more. In this respect, the primary concern and subsequent area of debate is the need to ensure that with power comes responsibility, and that the private actors behave in such a way so as not to impede human rights. Within this, there are questions over whether it is best achieved by directly imposing human rights obligations and accountability on the non-state actors themselves, or by ensuring effective mechanisms by which states will have oversight and accountability for the conduct of non-state actors. The traditional approach within human rights law indicates a preference for the latter. This is based on the language of human rights treaties, and the fact that international human rights law was initially developed to regulate—and restrict where necessary—the power that states have over the rights of individuals. This debate over the human rights obligations of non-state actors demonstrates the concern over the ability of international law to contend with the rising prominence of non-state actors in the domestic and international spheres. However, these particular questions are not the ones of greatest concern in the context of the scope of this work. The present focus is not on the actions of the non-state actor but rather on the regulation and applicable rules to the actions of states in their conduct against non-state actors. Moreover, although the questions surrounding the human rights obligations of non-state actors may not have been firmly settled, it is clear there are ongoing debates and attempts to find solutions, and that possible avenues to resolving the issues are being put forward.52 In other areas which are of direct relevance, and will receive detailed attention in the following chapters, there is however greater ambiguity and less apparent solutions are on offer.
The greatest challenge to emerge in the context of extraterritorial force against non-state actors is in the area of the rules of the ius ad bellum. The laws on the resort to armed force outside of states’ own borders are premised—at least at first sight—on the notion that such actions are taken by states and against states. Even when non-state actors enter the debate, this usually occurs in the context (p. 17 ) of resolving disputes between states, and discussion revolves around state responsibility for the conduct of the non-state actors. In the case of Nicaragua,53 for example, the International Court of Justice (‘ICJ’) was faced with a situation in which non-state actors played a prominent role, but ultimately focused on the attribution of their actions to states, and the repercussions of attribution and responsibility in the context of self-defence and use of force between states.54 The case of Democratic Republic of the Congo v. Uganda presented additional examination of how non-state actors might affect use of force between states.55 The situations examined here raise, however, another set of questions and challenges not adequately answered in the existing case law. In essence, the problem before us is not how to respond to states that are responsible for the conduct of non-state actors, but rather the issue of taking forcible measures against independent non-state actors whose conduct cannot necessarily be attributed to a particular state. Forcible action of this type is hardly new,56 but it is nevertheless not explicitly or adequately addressed in international law. Moreover, the growing ability of non-state actors to operate outside of state control, whether due to breakdown of state structures (eg ‘failed states’) or the capability to wreak havoc with nothing but small clandestine cells, is presenting further obstacles and challenges to the international legal framework.
Attempts to counter threats and, on occasion, to respond to actual attacks by non-state actors, raise vexing questions in the context of the laws on the resort to force: does the right to self-defence under international law include the right to use extraterritorial force in response to attacks by an independent non-state actor? Can this right be exercised on the territory of another state if that state cannot be held responsible for the attack by the non-state actor? What if the non-state actor has bases of operations in more than one state? Finally, could there be rules other than those of self-defence, which might permit extraterritorial force against non-state actors? These questions will be examined in the following chapters. Whilst possible solutions will be raised, it will be evident that the rules of international law are not always formulated in a manner that can provide perfect answers. To a certain extent this is not a flaw in the law itself, but rather a result of a legal system predicated on a world in which states are the primary actors. Moreover, the international rules regulating the resort to force were formulated with the stated objective of limiting resort to force and maintaining international stability.57 However, some of the approaches to allowing and regulating states’ resort to force against non-state actors risk destabilizing the very foundations (p. 18 ) of this desired stability. As will be posited, certain situations can be covered by acceptable interpretations of the rules of self-defence, but when the paradigm of self-defence and armed attacks is not clearly applicable, problems will remain. Some of the current practices of states may, with time, contribute to the development of new rules but, as of now, such rules have not emerged, and it is difficult to see what form they could take without opening the door to a potential flood of forcible interventions in the territory of other states.
The field of international humanitarian law has challenges of its own raised by the role of non-state actors, although arguably these do not risk destabilizing foundational principles as in the other two branches of law raised above. Considering that so many of the armed conflicts since World War II have been ones in which a non-state actor was one of the main parties involved in the fighting, the relevant law has had to develop in such a way that this reality cannot be ignored. Common Article 3 of the 1949 Geneva Conventions binds all parties to non-international armed conflicts, which would include non-state actors. Additional Protocol II of 1977, aimed at regulating non-international armed conflicts, explicitly mentions ‘organized armed groups’.58 The applicability of IHL to non-state actors is also apparent in customary international law, and through international criminal law for violations of these rules. Indeed, the first trial to come before the International Criminal Court related to the alleged crimes of a leader of a militia group.59 IHL therefore clearly recognizes that the role of non-state actors in armed conflict cannot be ignored, and strives to include them in the body of applicable rules. Nonetheless, it should also be stressed that whilst IHL developed so as to encompass the conduct of non-state actors, states did their utmost to ensure that these laws maintain the separation between them and the non-state actors, and do not elevate the latter to the status or position of the former. This is readily apparent in two areas. First, both Common Article 3 and the 1977 Protocol contain provisions clarifying that they do not amount to any change in the legal status of the parties of the conflict.60 Secondly, whilst the treaty rules of non-international conflict apply equally to states and non-state actors, a comparison of these rules to those in the treaties applicable to international armed conflict reveals the desire of states to avoid enhancing the status of the non-state groups. The clearest indication of this is the lack of any provision on prisoner of war (‘POW’) status in the context of non-international conflicts. Under the rules of international armed conflict, individuals who qualify for the status of POW will receive immunity from prosecution for (p. 19 ) acts that were in accordance with IHL such as confining their attacks to military objectives and carrying them out in a lawful manner (although they can be prosecuted for violations of IHL).61 There are no similar provisions in the laws applicable to non-international conflicts, as can be expected upon consideration of the interests of states. In the context of international conflicts, soldiers of the enemy are not in fact committing any crime by virtue of their participation in the conflict, and taking them prisoner merely reflects the need to keep them off the battlefield for the duration of the war. In a non-international conflict, individuals who take up arms against the state are, by contrast, likely to be committing some of the most serious crimes the state can envisage, eg treason. Including a POW status in these conflicts would amount to requiring states to grant immunity from prosecution to rebels who—so long as they only attack soldiers and military targets—are fighting against the state. Consequently, it can be said that IHL recognizes the central role of non-state actors in modern armed conflict and the ensuing need for the law to take account of their existence, whilst simultaneously allowing the preservation of the Westphalian system of states by not providing non-state actors the status or legitimacy to undermine states’ authority.
The question of the status given to non-state actors also affected the classification of conflicts. The 1977 Additional Protocols followed the division into international and non-international armed conflicts. However, the final versions of the Protocols reflected a desire to recognize certain struggles as something other than an internal conflict with rebels, as can be seen in the inclusion of paragraph 4 of Article 1 in Protocol I, on international conflicts. According to this provision, ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ are to be considered international armed conflicts.62 By falling into the category of international conflicts, armed groups would escape the lack of status clauses in the non-international rules, and their members would have the possibility of benefiting from rules designed for those fighting on behalf of states, including receiving prisoner of war status and immunities.63 Armed groups involved in such struggles would consequently be able to argue that IHL recognizes that they have a status higher than that of a group of criminal rebels. As will be seen in later chapters, this nexus between the status of parties and conflict classification, has various implications in the context of extraterritorial force against non-state actors.
As in the cases of human rights law and the international laws on resort to force, the increasing necessity of addressing the role of non-state actors operating (p. 20 ) across borders, can present challenges to the traditional understanding of the rules of international law. As will be seen in the chapters on IHL, when extraterritorial force against non-state actors amounts to armed conflict, a debate exists over whether it should be classified as international or non-international.64 One of the difficulties that would be faced if these situations were classified as international would be whether this raises questions over recognition of status for the non-state actors, and how to reconcile the conflict type with matters such as granting prisoner of war immunities. The preferred approach, as will be substantiated in later chapters, is to view these situations—if they do indeed amount to armed conflict—as non-international. Accordingly, in those situations in which IHL is applicable, it would not serve as grounds for claiming any elevated or state-like status for the non-state actors concerned.
As noted earlier, for reasons of scope and clarity, terrorism is not used as the foundation point for the analysis. However, the theme of terrorism runs through many of the arguments put forth by governments and commentators, and the term as used will, therefore, be repeated. The definition of ‘terrorism’ is open to multiple interpretations, and the only clear consensus is that it is a term reserved for actions of which the speaker disapproves. Primary areas of contention have included the question of whether terrorism is limited to acts against states or whether states can also be guilty of terrorism, and over the use of the term in the context of groups struggling for self-determination and/or against occupation.65 Although use of words with the ‘terror’ root have become politically loaded, it would be practically impossible to avoid their use altogether. The terms have become embedded into the debates ranging over a multitude of issues dealing with non-state groups, and are included in the language of international law and its institutions.66
Nevertheless, for our purpose, there is in fact no need to elaborate or agree upon a particular definition of terrorism. Where the term terrorism in its various forms is used, it will be in the context of reference to it by states and commentators. (p. 21 ) At the heart of this analysis, however, are the rules that apply to all forms of extraterritorial forcible operations against non-state actors, whether or not they are defined as counter-terrorism, and regardless of what definition of terrorism is used. The ‘war on terror’ is presented in inverted commas due to the controversies surrounding the very use of the term. A substantial part of chapter 5 will be devoted to analyzing the question of whether or not a ‘war on terror’ can denote a real war or armed conflict, as defined by international law.
Following the above explanation of the rationale and scope of this work, and the structure and definitions employed throughout, Part I will now begin the substantive analysis, by focusing on the international laws governing the resort to force in the context of extraterritorial forcible measures against non-state actors. (p. 22 )
(1) ‘Uzbek rebel “killed” in Pakistan’ BBC News, 2 October 2009; ‘“Drone attack” kills Taliban wife’ BBC News, 5 August 2009; ‘US bombs Islamist town in Somalia’ BBC News, 3 March 2008.
(2) S Otterman and M Mcdonald, ‘11 Pirates Seized by French Navy’ New York Times, 15 April 2009.
(3) ‘Farc aura of invincibility shattered’ BBC News, 1 March 2008.
(4) ‘Turkish Incursions into Northern Iraq’ Reuters, 22 February 2008.
(5) R Jennings, ‘The Caroline and McLeod Cases’ 32 AJIL 82 (1938).
(6) J Scott, ‘The American Punitive Expedition into Mexico’ 10 AJIL 337 (1916); G Finch, ‘Mexico and the United States’ 11 AJIL 399 (1917).
(7) W Pincus, ‘U.S. Strike Kills Six in Al Qaeda’ Washington Post, 5 November 2002; F Bokhari, ‘Pakistan tries to ease tension after US attack’ Financial Times, 16 January 2006; n 1, supra.
(8) Resolution Adopted by the Security Council at its 868th Meeting on 23 June 1960 (On Questions Relating to the Case of Adolf Eichmann), UN Doc S/4349.
(9) Y Melman, ‘Capturing nuclear whistle-blower was “a lucky stroke” agents recall’ Haaretz, 21 April 2004.
(10) Security Council Official Records, 31st Year, 1939th Meeting, 9 July 1976, New York, UN Doc S/PV.1939 (1976).
(11) Statement by Ambassador Dan Gillerman, Permanent Representative, Emergency Session, Security Council, New York, 5 October 2003.
(12) See discussion in the Concluding Chapter, infra.
(13) calan v. Turkey, App no 46221/99, 12 May 2005.
(14) ‘Kidnapped by North Korea’ BBC News, 5 March 2003.
(15) See discussion of Rwanda, Burundi, and Uganda, amongst others, in ‘Scramble for the Congo: Anatomy of an Ugly War’ Africa Report no 26, International Crisis Group, 20 December 2000.
(16) Delia Saldias de Lopez v. Uruguay, Comm no 52/1979, UN Doc CCPR/C/OP/1 (1984).
(17) See Ch 5, infra, on non-traditional models of conflict.
(18) See Ch 5, infra, on non-traditional models of conflict.
(19) See n 65, infra, and accompanying text.
(20) See Ch 5, infra, on non-traditional models of conflict.
(21) Similar reasoning underpins other examinations. eg, see H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP: Cambridge, 2005) 46.
(22) See Ch 1, infra, on self-defence against non-state actors.
(23) Issa and ors v. Turkey, App no 31821/96, 16 November 2004.
(25) See Part II, infra. While the ‘law of armed conflict’ may be a more accurate term insofar as it provides a better literal description of the framework, ‘international humanitarian law’ has become the term more commonly used in writings and by international bodies, and will therefore be the term employed in this work.
(27) See the discussion of the Yemen incident in the Concluding Chapter, infra.
(28) ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, UN Doc A/CN.4/L.682, 13 April 2006.
(29) See section 1.1 of Ch 6, infra, on combatants.
(30) For further examination of the parallel applicability of international humanitarian law and international human rights law see Ch 9, infra.
(31) There may be signs of progress in the coming year, but for the past years this has remained a subject of ongoing debate and lack of agreement. See Press Conference on Special Working Group on Crime of Aggression, UN Department of Public Information, News and Media Division, New York, 13 February 2009; Report of the Special Working Group on the Crime of Aggression, UN Doc ICC-ASP/ 7/20/Add.1.
(32) See Ch 2, n 129, infra, and accompanying text.
(33) See detailed arguments in Ch 4, infra.
(34) See section on threshold and identifying the parties in Ch 4, infra.
(35) See discussion in Ch 5, infra.
(36) See discussion in context of Afghanistan, Pakistan and Yemen, in Concluding Chapter, infra.
(37) One example in recent years can be found in questioning the link between a human right to peace and the ius ad bellum. See W Schabas, ‘Lex specialis? Belt and suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum’, 40 Israel Law Review 592 (2007).
(38) There would of course be a preliminary question of whether international human rights obligations can apply to actions taken extraterritorially. This is dealt with in depth in Chs 7 and 8, infra.
(39) Eg, ‘No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’, International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 3, entered into force 23 March 1976, Article 9.
(40) See n 8, supra.
(41) See Ch 1, infra, on self-defence.
(42) See Ch 6, infra, on individual status.
(43) See Ch 8, infra, on extraterritorial applicability.
(44) In particular, the existence of occupation impacts upon the potential of full applicability of human rights obligations, as will be mentioned in Ch 8, infra, on extraterritorial applicability.
(45) See discussion of piracy in section 4 of Ch 3, infra; Ch 4, nn 122-7 and accompanying text, infra; Ch 8, nn 153-162 and accompanying text, infra; see also United States v. Yunis 924 F. 2d 1086 (DC Cir 1991); Alejandre Jr and ors v. Republica de Cuba (‘Brothers to the Rescue’), Case 11.589, Report no 86/99, OEA/Ser.L/V/II.106 Doc. 3 rev at 586 (1999) (in international airspace).
(46) Although, as will be seen, there may be cases which involve the use of force in international air space or the high seas.
(47) For an example of problems raised in such circumstances, see Behrami and Behrami v. France, App no 71412/01 and Saramati v. France, Germany and Norway, Decision on Admissibility, App no 78166/01, 2 May 2007.
(48) For an elaboration of the standards and tests for determining whether individuals and groups are state agents, and whether their actions can be attributed to the state, see ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, International Law Commission, 53rd session (2001) arts 4-11 (extract from ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Official Records of the General Assembly, 56th session, Supp no 10 (A/56/10), chap IV.E.1, November 2001); ‘Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts’, International Law Commission, 53rd session, 2001 (extract from the ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Official Records of the General Assembly, 56th session, Supp no 10 (A/56/10), chap IV.E.2, November 2001, pp 80-122); Case Concerning Military and Paramilitary Activities in and Against Nicaragua,  ICJ Rep 14, paras 93-116; Prosecutor v. Dusko Tadic, Case no IT-94-1-A, ICTY App Ch, 15 July 1999, paras 146-62; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia, Judgment on Merits, General List No 91; ICGJ 70 (ICJ 2007) 26 February 2007, paras 379-415. There may also be links in the form of post-facto endorsement, see Case Concerning United States Diplomatic and Consular Staff in Tehran (US v. Iran), 1980 ICJ Rep 3.
(49) M Healy, ‘Navy May Send Ships to Fight Colombia Drugs’ LA Times, 23 November 1989; see also abductions of Alvarez-Machain and others in relation to a Drug Enforcement Administration (‘DEA’) incident following the murder of a DEA agent. See discussion in A Abramovsky, ‘Extraterritorial Abductions: America’s “Catch And Snatch” Policy Run Amok’ 31 Virginia Journal of International Law 151 (1991).
(50) See n 9, supra.
(51) In general, see A Clapham, Human Rights Obligations of Non-State Actors (OUP: Oxford, 2006); see also Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Addendum, Corporations and Human Rights: a Survey of the Scope and Patterns of Alleged Corporate-Related Human Rights Abuse, UN Doc A/HRC/8/5/Add.2, 23 May 2008.
(52) See, eg Clapham, ibid, and ‘Protect, Respect and Remedy: a Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie’, UN Doc A/HRC/8/5, 7 April 2008.
(53) See n 48, supra.
(54) Nicaragua, n 48, supra, paras 131, 195, 229, 230.
(55) Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), paras 146,147.
(57) Charter of the United Nations (26 June 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, entered into force 24 October 1945, Preamble, Arts 1 and 2.
(58) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977) 1125 UNTS 609, entered into force 7 December 1978, art 1.
(59) Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06.
(60) Common Article 3 states that ‘The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.’; according to Art 3 of Protocol II, ‘Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.’
(61) See section 1.1 of Ch 6, infra, on combatants.
(62) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977) 1125 UNTS 3, entered into force 7 December 1978, Art 1.
(63) They would nevertheless have to fulfil certain criteria, as required in the rules of international armed conflict. See section 1.1 of Ch 6, infra, on combatants.
(64) The detailed analysis of this can be found in Ch 4, infra.
(65) For a description of the attempts to reach a definition, see B Saul, ‘Attempts to Define “Terrorism” in International Law’ 52 Netherlands International Law Review 57 (2005); Duffy n 21, supra, pp 17-46; For an earlier review of the issues, see T Franck and B Lockwood, ‘Preliminary Thoughts towards an International Convention on Terrorism’ 68 Amsterdam Journal of International Law 69 (1974).
(66) For example, International Convention for the Suppression of the Financing of Terrorism, GA Res 109, UN GAOR, 54th session, Supp no 49; UN Doc A/54/49 (vol I) (1999); S Treaty Doc no 106-49 (2000); 39 ILM 270 (2000), adopted 9 December 1999, entered into force 10 April 2002; International Convention for the Suppression of Terrorist Bombing, GA Res 164; UN GAOR, 52nd session, Supp no 49, at 389; UN Doc A/52/49 (1998), entered into force 23 May 23 2001; see also the work of the UN Security Council Counter-Terrorism Committee at <http://www.un.org/sc/ctc/>.