Extraterritorial Use of Force against Non-State Actors

311 Pages·2010·2.35 MB·English

by  Noam Lubell

OXFORD MONOGRAPHS IN
INTERNATIONAL LAW
General Editors
PROFESSOR VAUGHAN LOWE
Chichele Professor of Public International Law in the University of Oxford and
Fellow of All Souls College, Oxford
PROFESSOR DAN SAROOSHI
Professor of Public International Law in the University of Oxford and
Fellow of Th e Queen’s College, Oxford
PROFESSOR STEFAN TALMON
Professor of Public International Law in the University of Oxford and
Fellow of St. Anne’s College, Oxford
Extraterritorial Use of Force
Against Non-State Actors
OXFORD MONOGRAPHS IN
INTERNATIONAL LAW
Th e aim of this series is to publish important and original pieces of research
on all aspects of international law. Topics that are given particular promi-
nence are those which, while of interest to the academic lawyer, also have
important bearing on issues which touch the actual conduct of international
relations. Nonetheless, the series is wide in scope and includes monographs
on the history and philosophical foundations of international law.
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Th e Interpretation of Acts and Rules in Public International Law
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International Criminal Law and
International Human Rights Law
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Defi ning Terrorism in International Law
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Diplomatic Protection
Chittharanjan F. Amerasinghe
Extraterritorial Use of
Force Against
Non-State Actors
NOAM LUBELL
Lecturer, Irish Centre for Human Rights, School of Law
National University of Ireland, Galway
1
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© Noam Lubell, 2010
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British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging-in-Publication Data
Lubell, Noam.
Extraterritorial use of force against non-state actors / Noam Lubell.
p. cm.—(Oxford monographs in international law)
ISBN 978–0–19–958484–0
1. Non-state actors (International relations) 2. War (International law)
3. Terrorism—Prevention—Law and Legislation. I. Title.
KZ6405.N66L83 2010
341.6—dc22 2010010918
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
the MPG Books group in the UK
ISBN 978–0–19–958484–0 (Hardback)
1 3 5 7 9 10 8 6 4 2
To my grandparents, Mimi, Sam, Rita, and Aubrey
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General Editors’ Preface
Th e regulation of the use of force by states is one of the most controversial and
important areas of public international law. Th e general prohibition on the use
of force by states contained in Article 2(4) of the United Nations Charter rep-
resents the culmination of eff orts over a number of centuries to try and impose
constraints on the right of monarchs and rulers to wage war. And yet since the
adoption of the United Nations Charter this prohibition has often been the sub-
ject of serious breach. Th e content of this prohibition must evolve if it is to retain
its relevance and normative force, and yet if the exceptions to this prohibition are
interpreted too broadly then its continued existence becomes problematic.
Due to the nature of threats faced by states, a persistent feature of the use
of force has seen states take military action against non-state actors who are
not located in their territory, often in recent years as part of the ‘war on terror’.
Dr Lubell’s study represents a serious and signifi cant contribution to the modern
debates on what are, and what should be, the limits on the extraterritorial use of
force by states against non-state actors, and in so doing the work should be com-
mended for making a contribution to the corpus of international law governing
both ius ad bellum and ius in bello.
AVL
DS
ST
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Preface
Th is book addresses a challenging, important, and surprisingly neglected area of
international legal concern. Most writing in the fi eld of the use of force by states
focuses on the use of armed force by states against other states; or by parties to an
armed confl ict within individual states; or by the deployment of power by states
against those within their jurisdiction. Increasingly, attention is also given to the
depredations of transnational terrorism, that is, the activities of non-state actors
operating across frontiers.
Very little attention is given to the use of force by states acting beyond their
frontiers against non-state actors located in other jurisdictions, yet there are
frequent instances of the problem. High profi le examples from the last decade
would be Israel’s use of force against Hezbollah in South Lebanon, Colombia’s
attacks against FARC rebels in Ecuador, and American drones targeting sus-
pected Al-Qaeda terrorists in Pakistan. In fact, examples from the early period
of modern international law can be traced back at least to the 1837 Caroline inci-
dent, when the British fi red on and sent over Niagara Falls an American-owned
ship used by Canadians rebelling against (British rule in) Canada.
Indeed, this is the incident that gave international law the classic defi nition of
the concept of self-defence. More recently self-defence was invoked by the United
Nations Security Council and NATO as justifying a forcible response to the
atrocities of 11 September 2001 perpetrated by Al-Qaeda on the United States.
On the other hand, in the Wall case,¹ the International Court of Justice opined
that self-defence could only be invoked by one state in respect of an attack by
another state. Th e issue is the subject matter of a key chapter of the present book
that looks at the ius ad bellum (the law regarding the legality of resort to armed
force).
However, the bulk of this book deals with the law relevant, not to the ‘whether’
of the use of force, but to the ‘how’ of its deployment. In so far as we are dealing
with the law applicable to armed confl ict (ius in bello) the book examines the
relevant rules of that body of law. Th is includes examination of the obligations of
states vis-à-vis formal parties to an armed confl ict, as well as with regard to civil-
ians involved in the confl ict, and the controversial notion of unlawful combat-
ants. Whether the confl ict is to be considered international or non-international
is also studied.
Th e applicability of international human rights law is the other major focus
of the book’s concern. Th is also invokes the (contested) dimension of how far
¹ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisor
Opinion [2004] ICJ Rep 36.