Charting the Legal Geography of Non-International Armed Conflict

• Author: Michael N. Schmitt
• Position: Charles H. Stockton Professor of International Law and Chairman, International Law Department, United States Naval War College; Professor of Public International Law, University of Exeter
• Pages: 1-19

Charting the Legal Geography of NIAC Vol. 90

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Charting the Legal Geography of Non-

International Armed Conflict

Michael N. Schmitt*

I. INTRODUCTION

nited States extraterritorial drone and special operations continue to

generate international and domestic controversy.

1 Much of the debate sur-

rounds the legality of crossing State borders to conduct the missions. Alt-

hough commentators sometimes look to international humanitarian law

* Charles H. Stockton Professor of International Law and Chairman, International

Law Department, United States Naval War College; Professor of Public International Law,

University of Exeter. The views expressed in this article are those of the author in his per-

sonal capacity and do not necessarily reflect those of the U.S. government. The a rticle is

republished with permission from the Military Law and the Law of War Review and was part

of a symposium h onoring my friend, the late Brigadier General Erwin Dahinden, Swiss

Army.

1. See, e.g., the recent reports on drone operations. Report of the Special Rapporteur on

Extrajudicial, Summary or Arbitrary Executions, transmitted by Note of the Secretary-General, U.N.

Doc. A/68/382 (Sept. 13, 2013) (by Christopher Heyns); Report of the S pecial Rapporteur on

the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terror-

ism, transmitted by Note of the Secretary-General, U.N. Doc. A/68/389 (Sept. 18, 2013) (by Ben

Emmerson); “Will I be Next?”: US Drone Strikes in Pakistan, AMNESTY INTERNATIONAL

(Oct. 22, 2013), http://www.amnestyusa.org/research/reports/will-i-be-next-us-drone-

strikes-in-pakistan; “Between a D rone and Al-Qaeda”: The Civilian Cost of US Targeted Killings in

Yemen, HUMAN RIGHTS WATCH (Oct. 22, 2013), http://www.hrw.org/reports/2013/

10/22/between-drone-and-al-qaeda.

International Law Studies 2014

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(IHL) as the source of authority for transborder operations, the existence

of an armed conflict in which IHL applies generally has no bearing on the

extraterritoriality question. As has been discussed elsewhere, the primary

international law bases for extraterritorial operations are instead consent

and self-defense—aspects of the jus ad bellum, not the jus in bello.

2

However, the existence of an armed conflict does fix the legal regime

that controls how extraterritorial operations have to be conducted.3 The

fundamental legal question in this regard is whether the lex generalis of in-

ternational human rights law (IHRL) or the lex specialis of IHL binds a

State’s extraterritorial application of force. The difference between the two

distinct bodies of law is crucial. To the extent IHL applies, individuals may

be targeted based on status as members of the armed forces (including as

members of organized armed groups) or as civilians directly participating in

hostilities.4 Should it not apply, IHRL norms restrict lethal targeting to sit-

uations in which its use is “strictly unavoidable in order to protect life.”5

Moreover, the IHL rules governing detention are less restrictive than their

IHRL counterparts and the application of IHL opens the door to prosecu-

tion for war crimes.6 Finally, IHRL generally applies only to the operations

of State forces, thereby leaving the activities of non-State armed groups

2. Michael N. Schmitt, Extraterritorial Lethal Targeting: Deconstructing the Logic of Interna-

tional Law, 52 COLUMBIA JOURNAL OF TRANSNATIONAL LAW __ (forthcoming 2013).

3. On the range of extraterritorial operations to which IHL might be applicable, see

INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERNATIONAL HUMANITARIAN

LAW AND THE CHALLENGES OF CONTEMPORARY CONFLICTS, Report Prepared for the

31st International Conference of the Red Cross and Red Crescent, 31IC/11/5.1.2, 9–11

(Oct. 2011) [hereinafter ICRC 31st C onference Report]. See also Jelena Pejic, The Protective

Scope of Common Article 3: More than Meets the Eye, 93 INTERNATIONAL REVIEW OF THE RED

CROSS 189, 193–97 (2011).

4. INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERPRETIVE GUIDANCE ON

THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HU-

MANITARIAN LAW 21–22 (Nils Melzer ed., 2009); Protocol Additional to the Geneva Con-

ventions of 12 August 1949, and Relating to the Protection of Victims of International

Armed Conflicts art. 51(3), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol

I]; Protocol Additional to the Geneva Conventions of August 12 1949, and Relating to the

Protection of Victims of Non-international Armed Conflicts art. 13(3), June 8, 1977, 1125

U.N.T.S. 609 [hereinafter Additional Protocol II].

5. Eighth United Nations Congress on the Prevention of Crime and the Treatment of

Offenders, Havana, Cuba, Aug. 27–Sept. 7, 1990, Basic Principles on the Use of Force and Fire-

arms by Law Enforcement Officials, U.N. Doc. A/CONF.144/28/Rev.1, at 112, 114 (1990).

6. ICRC 31st Conference Report, supra note 3, at 10.