Extraterritorial Use of Force against Non-State Actors PDF
Preview Extraterritorial Use of Force against Non-State Actors
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. recent titles in the series Th e Collective Responsibility of States to Protect Refugees Agnès Hurwitz Jurisdiction in International Law Cedric Ryngaert Th e Interpretation of Acts and Rules in Public International Law Alexander Orakhelashvili Targeted Killing in International Law Nils Melzer Th e Fair and Equitable Treatment Standard in International Foreign Investment Law Ioana Tudor Th e Immunity of States and Th eir Offi cials in International Criminal Law and International Human Rights Law Rosanne van Alebeek Defi ning Terrorism in International Law Ben Saul 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 3 Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Noam Lubell, 2010 Th e moral rights of the author have been asserted Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Database right Oxford University Press (maker) First published 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer 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 This page intentionally left blank 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 This page intentionally left blank 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.
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