Global Armed Conflict? The Threshold of Extraterritorial Non-International Armed Conflicts

• Author: Sasha Radin
• Position: Visiting Research Scholar at the Naval War College, Newport Rhode Island; PhD candidate, Asia Pacific Centre for Military Law, University of Melbourne Law School
• Pages: 696-743

International Law Studies 2013

696

O

Global Armed Conflict?

The Threshold of Extraterritorial

Non-International Armed Conflicts

Sasha Radin*

I. INTRODUCTION

n February 4, 2013 the National Broadcasting Corporation (NBC)

published a leaked U.S. Department of Justice White Paper outlining the

U.S. government’s legal authority to kill American citizens who occupy sen-

ior operational roles within Al Qaeda.

1

In addition to raising domestic con-

stitutional questions, the White Paper cast renewed attention upon a num-

ber of contentious international law issues. These concerns, which all stem

from a lack of clarity as to when a State may conduct hostilities against

armed groups located outside its borders, include the extent of a State’s

* Visiting Research Scholar at the Naval War College, Newport Rhode Island; PhD

candidate, Asia Pacific Centre for Military Law, University of Melbourne Law School. For

helpful comments and conversations, specia l thanks to Jann Kleffner, Michae l Schmitt,

Kinga Tibori-Szabó, Michelle Lesh, Lieut enant Commander James Farrant, Lieutenant

Colonel Jeffrey S. Thurnher, Marko Divac Oberg and Captain Ralph Thomas (Re t.).

1

. U.S. Department of Jus tice, Lawfulness of a Lethal Operation Directed against a U.S. Cit-

izen Wh o Is a Senior Operational Leader of Al-Qaeda or an Associated Force (2011), available at

http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf

[hereinafter DOJ White Paper].

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right of self-defense against the actions of an armed group in a second

State; the question of when the law of armed conflict (LOAC) is triggered;

and the body of law that applies to individuals affiliated with an armed

group, yet who are located in a second State at a distance from the main

area of hostilities. As part of that broader discussion, this article focuses on

the question of when hostilities with armed groups operating across State

borders may be classified as an armed conflict, and therefore subject to

LOAC. The latter issue of what law is applicable to individuals located

away from the battlefield once an armed conflict exists is also briefly ad-

dressed.

This topic has particular relevance today given the frequency with

which armed groups disregard State boundaries in conducting their opera-

tions and the ambiguity surrounding the applicable legal framework. The

law of armed conflict is structured around State-centric concepts of sover-

eignty and territory, and is designed for either inter-State conflicts or for

purely internal armed conflicts.

2

Its contours have been based on territorial

boundaries.

3

Thus, international armed conflicts (IACs)

4

may generally only

occur between States.

5

Non-international armed conflicts (NIACs),

6

or

2

. For an interesting historical discussion of the territorialized thinking influence upon

the development of LOAC, see Louise Arimatsu, Territory, Boundaries and the Law of Armed

Conflict, 12 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 157 (2009).

3

. Id. at 170.

4

. The main treaties applicable to international armed conflicts are : Convention for

the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,

Aug. 12 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12,

1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Protection of Civilian

Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC

III]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T.

3316, 75 U.N.T.S. 135; Protocol Additional to the Geneva Conventions of 12 August

1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8,

1977, 1125 U.N.T.S. 3 [hereinafter AP I].

5

. See COMMENTARY TO GENEVA CONVENTION III RELATIVE TO THE TREATMENT

OF PRISONERS OF WAR 23 (Jean Pictet ed., 1960) [hereinafter GC III COMMENTARY]

(“Any difference arising between two States and leading to the intervention of members of

the armed forces is an armed conflict within the meaning of Article 2.”); Prosecutor v.

Tadić, Case No. IT-94-1-AR72, De cision on Defence Motion for Interlocutory Appeal on

Jurisdiction, ¶ 70 (Int’l Crim. Tr ib. for the former Yugoslavia Oct. 2, 1995) [hereinafter

Tadić Appeals Decision on Jurisdiction]. Recognized belligerencies and the controversial

Article 1(4) of AP I are exceptions.

6

. The law applicable to NIACs is found in Article 3 Common to the Geneva Con-

ventions of 1949 (Common Article 3) and in Protocol Additional to the Geneva Conven-

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conflicts where armed groups either fight a State or each other, have tradi-

tionally been geographically limited to the confines of a State.

7

Conflicts such as the Israeli-Hezbollah war of 2006, the ongoing con-

flict in Afghanistan that has spilled over into Pakistan and the U.S. global

armed conflict against Al Qaeda

8

challenge this traditional State-centric

structure of LOAC. As a result, there is considerable debate as to how such

extraterritorial hostilities (i.e., those that cross State borders) should be

characterized. If hostilities do not rise to the level of an armed conflict,

they fall under a law enforcement regime

9

and are governed mainly by do-

mestic law and international human rights law. Although extraterritorial

hostilities do not fit neatly into any of these three existing legal divisions—

IACs, NIACs or law enforcement—their categorization has serious practi-

cal implications. Particularly, the classification of conflict affects such mat-

ters as how force may be used, what rules apply for detention and whether

an individual may be held criminally liable.

10

tions of 12 August 1949, and Relating to the Protection of Victims of Non-International

Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [ hereinafter AP II]. In addition, rele-

vant cu stomary international law applies to non-international armed conflicts. Domestic

law and international human rights law continue to apply in sit uations of armed conflict.

See, e.g., A.P.V. ROGERS, LAW ON THE BATTLEFIELD 217 (3d ed. 2012). The interaction of

human rights law, domestic law and LOAC during an armed conflict is a complex matter

that is beyond the scope of this paper. In armed conflict LOAC is the lex specialis.

7

. See infra notes 67 and 68 and accompanying text.

8

. The United States considers that it is engaged in an armed conflict with Al Qaeda

and its ass ociates that spreads across multiple territories. See, e.g., DOJ White Paper, supra

note 1, at 3. This is not to suggest that the whole world is the battlefield for this type of

conflict, bu t that t he conflict spans multiple States. See, e.g., the U.S. Navy, U.S. Marine

Corps & U.S. Coast Guard, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7A, The

Commander’s Handbook on the Law of Naval Operations ¶ 5.1.2.3 (2007), available at

http://www.usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/1-14M

(“The Global War on Ter ror is an example of this new type of conflict . . . . What law

applies in this type of conflict is still being settled.”).

9

. The terms law enforcement situation and peacetime are not used in this article to

mean a total lack of hostilities , but mere ly to d escribe situations that do not rise to the

level of armed conflicts.

10

. THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 618 (Dieter Fleck

ed., 2d ed. 2010). Therefore, if hostilities qualify as an armed conflict, targeting an individ-

ual participating in t he conflict is likely to be lawfu l (if, of course, it is done in accordance

with the applicable rules). In contrast, if c onsidered a law enforcement scenario, the use of

force against an individual would be lawful in a m ore limited set of circumstances. In addi-

tion, substantial differences in the content of certain IAC and NIAC rules e xist. For ex-

ample, combatant status and prisoner of war status only pertain to IACs.