Extraterritorial use of force against non-state actors and the transformation of the law of self-defence

443 Pages·2017·4.45 MB·English

Extraterritorial use of force against non-state actors and the

transformation of the law of self-defence

by

Alabo Ozubide

Submitted in fulfilment of the requirements for the degree

Doctor Legum (LLD)

In the Faculty of Law,

University of Pretoria

2016 September

Supervisor: Professor Christof Heyns

Co-supervisor: Professor Hennie Stydom

© University of Pretoria
Declaration

I, Alabo Ozubide hereby declare that this thesis which I submit for the degree Doctor Legum

(LLD) in the Faculty of Law at the University of Pretoria is my original research work and

it has not been previously submitted to any other university or institution for the award of a

degree.

Signature: _______________________________________________________
Alabo Ozubide

Date: _______________________________________________________

Supervisor: _______________________________________________________

Professor Christof Heyns

Date: _______________________________________________________

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Dedication

To the memory of my late father Suku Ozubide, who laid the foundation for this seemingly

protracted educational career.

Also, to HRH Turner Eradiri 11 (deceased), and Sir Lambert Eradiri, who, together kept my
dreams and hopes alive by providing the tools for this educational journey.

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Acknowledgements

To God Almighty be the glory for his protection and for stretching my limited intellect this

far to cope with the demands of my doctoral studies. My special appreciation goes to my

main supervisor, Professor Christof Heyns, for his encouragement, guidance and meticulous

comments which sharpened my thoughts and research skills. His experiences and vast

knowledge of the law which he brought to bear on my area of study provided the pathway

for my navigation. I also especially appreciate my co-supervisor Professor Hennie Strydom,

for his insightful comments on my submissions and for directing me to available literature

on the use of force which perhaps I would never have thought of using. The invaluable
contributions by way of comments made by Professor Frans Viljoen and Professor Gus
Waschefort at the proposal stage of my work are equally appreciated.

I am greatly indebted to Sir Lambert and Dame Eunice Eradiri for their invaluable

contributions to my pursuit of the Golden Fleece. The financial and material resources they

placed at my disposal greased my path to the pinnacle of my studies. God bless them.

The dream of realising this study could have remained an impossibility without the goodwill
and kind words of encouragement from eminent legal scholars and friends. In this regard,
my profound gratitude is due to Professor CM Fombad, Professor D Tladi, Professor Erika

de Wet, Professor M Hansungule, Professor TS Ebobrah, Dr. AJ Beredugo, Chief (Barr.)

NyesomWike (Governor of Rivers State), Dr. O Oluyeju, Dr. John-Mark Iyi, Dr. LA

Abdulrauf, Dr. A Onuora-Oguno, Barr. A Ofuani-Sokolo; Barr. OL Niyi-Gafar, Barr. OE

Eberechi, Dr. E Lubaale, V Ayeni, B Nkrumah, R Mafunga and Engr. SA Aasa. I also thank

the staff of the Institute for International and Comparative Law in Africa (ICLA),

particularly P Matwa and the staff of the OR Tambo Library, particularly Mahlodi for their

immeasurable support.

My gratitude is also due to Mr. Fraser Okuoru, Barr. W Kemeasuode (Hon. Commissioner

for Justice), Barr. P Agedah (Solicitor-General & Permanent Secretary), Barr. T Songi, Barr.

E Ogorodi and my other colleagues at the Bayelsa State Ministry of Justice. Other friends

and family members including Sir DM Eradiri, Hon. Justice I Eradiri, Prof. S Brisibe, Prof.

D Wankasi, Dr. N Ayawei, Dr. F Woke, Dr. O Ogiriki, Dr. P Ikiyei, K Alaowei, Barr. F

Okorotie, Mrs. T Tulagha, W Ozubide, K Ozubide, Dr S Tulagha, Engr. EJ Eradiri, Engr. U

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Eradiri, D Inoyo, Insp. Ebi Diri, P Wariowei, W Kwokwo, Z Dickson and B Timisowei are
equally appreciated for the roles they played in support of my studies.

Finally, and above all, my deep-seated appreciation goes to my mother, Rose Ozubide, my

beloved wife, Bolou, and our children, Seleboere, Ayibamieye, Perebodo, Ebimobo and

Ebinimi for their prayers, support, understanding and for bearing with my long absence.

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Abstract

The United Nations, states and regional organisations have spent invaluable time and

resources to maintain international peace and security in a largely anarchical international

system, owing to armed conflicts between states and non-state actors (NSAs). This state of

affairs is exacerbated by the proliferation of weapons of mass destruction, transnational

terrorist networks, failed states and a disregard for international norms by powerful states.

This is in spite of the normative and policy frameworks that have been established to

constrain the use of force by states in the territories of one another. Article 2(4) of the United

Nations Charter prohibits the use of force by states in their relations, unless they rely on the
exceptions in articles 51 and 42 and the customary law doctrine of ‘consent’. In addition, it
was the requirement of international law that a state may use force against NSAs, only if it
attributes the conduct of the NSAs to a state. This thesis examines the extraterritorial use of
force by states against terrorist non-state actors, and the focus is to answer the question

‘whether the law of self-defence has been transformed’. The investigation has been

conducted with particular attention to whether the post 9/11 practice of states, the Security

Council resolutions 1368 and 1373, the use of pre-emptive self-defence by the United States,

Israel and a few other states, the disregard for attribution of the conduct of NSAs to states

and the overwhelming international support for contemporary incidents of the use of force

by states against NSAs, such as Al Qaeda, the Taliban, Al-Shaabab, the Khorasan Group

and the Islamic State of Iraq and the Levant, have caused a change in the law of self-defence.

Firstly, the study finds that pre-emptive self-defence which does not require imminence has

not been accepted as part of international law and it argues that its unlawful use could not

cause a change in the law. Secondly, as far as the use of self-defence against non-state actors

is concerned, it finds that the actions of the United States against Al Qaeda following

resolutions 1368 and 1373 of the Security Council, the lowering of the attribution standard

and the toleration by the international community of the use of force against terrorists in

Afghanistan, Iraq, Syria, Lebanon, Yemen, Pakistan, Ecuador, Somalia and Mali without

attributing their conduct to states, could be interpreted as amounting to a transformation of

the law of self-defence.

Accordingly, this study recommends the acceptance of the lowered threshold in the

attribution requirement, but it also recommends a corresponding disregard of ‘pre-emptive

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self-defence’ as not forming part of the corpus of international law. It is also recommended
that the jurisdiction of the International Criminal Court be enlarged to try transnational
terrorism as one of the egregious crimes against mankind.

Keywords: Extraterritorial, use of force, non-state actors, transformation, self-defence,

transnational, terrorism, attribution, pre-emptive self-defence and weapons of

mass destruction.

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Acronyms/Abbreviations

ACHPR – African Charter on Human and People’s Rights

ANC – African National Congress

AU – African Union

ANF – Al-Nusrah Front

AQAP – Al Qaeda in the Arabian Peninsula

AQIM – Al Qaeda in the Islamic Maghreb

AI – Amnesty International

ASEAN – Association of South-East Asian Nations
AUMF – Authorisation for Use of Military Force
CIA – Central Intelligence Agency
CJCSSROE – Chairman Joint Chiefs of Staff Standing Rules of Engagement
CRC – Child Rights Convention

CTC – Counter Terrorism Committee

CTED – Counter Terrorism Executive Directorate

DASR – Draft Articles on State Responsibility for Internationally Wrongful

Acts

DARIO- Draft Articles on the Responsibility of International Organisations

DFLP – Democratic Front for the Liberation of Palestine

ECHR – European Convention on Human Rights

ECOMOG – ECOWAS Monitoring Group

ECOWAS – Economic Community of West African States
FARC – Revolut ionary Armed Forces of Colombia
GA – General Assembly
GC – Geneva Convention
GWOT – Global War on Terrorism

HAMAS – Islamic Resistance Movement

HEU – Highly Enriched Uranium

HRC – Human Rights Council

HRW – Human Rights Watch

HSBC – Hong-Kong and Shanghai Banking Corporation

IAEA – International Atomic Energy Agency

ICCPR – International Covenant on Civil and Political Rights

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ICESCR – International Covenant on Economic, Social and Cultural Rights
ICJ – International Court of Justice
IDF – Israeli Defence Forces
IHL – International Humanitarian Law

IHRL – International Human Rights Law

ILC – International Law Commission

ILD – International Law Division

ISI – Inter-Service Intelligence

ISIL – Islamic State in Iraq and the Levant

ISAF – International Security Assistance Force

IMU – Islamic Movement of Uzbekistan

IATRA – Inter-American Treaty for Reciprocal Assistance
JSOC – Joint Special Operations Command
LOAC – Law of Armed Conflict
MB – Muslim Brotherhood
NTC – National Transition Council

NAM – Non-Aligned Movement

NATO – North Atlantic Treaty Organisation

NGOs – Non Governmental Organisations

NPT – Treaty on Non-proliferation of Nuclear Weapons

NSAs – Non-state Actors

NSS – National Security Strategy

NTC – National Transitional Council

OPT – Occupied Palestinian Territory

OHCHR – Office of the High Commissioner on Human Rights
OEF – Operation Enduring Freedom
OIR – Operation Infinite Reach
ONS – Operation Neptune Spear
OAU – Organisation of African Unity

OAS – Organisation of American States

OIC – Organisation of Islamic Conference

OSCE – Organisation for Security and Cooperation in Europe

PCATI – The Public Committee Against Torture in Israel

PET – Danish Security and Intelligence Service

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PFLP – Popular Front for the Liberation of Palestine
PKK – Kurdish Workers Party
PLO – Palestinian Liberation Organisation
PoC – Protection of Civilians

PoW – Prisoners of War

R2P – Responsibility to Protect

RPAs – Remotely Piloted Aircrafts

RENAMO – Resistecia Nacional Mozambicana

SADC – Southern African Development Commission

SC – Security Council

SOFA – Status of Forces Agreement

SPI – Proliferation Security Initiative
SWAPO – South West African People’s Organisation
TK – Targeted Killing
UAVs – Unmanned Aerial Vehicles
UDHR – Universal Declaration of Human Rights

UIC – Union of Islamic Court

UN – United Nations

UNAMIR – United Nations Assistance Mission in Rwanda

UNCRO – United Nations Confidence Restoration Operation in Croatia

UNEF – United Nations Emergency Force

UNGA – United Nations General Assembly

UNITAF – Unified Task Force

UNMOVIC – United Nations Monitoring, Verification and Inspection Commission

UNIFIL – United Nations Interim Force for Lebanon
UNODC – United Nations Office on Drugs and Crime
UNOSOM – United Nations Operations in Somalia
UNPROFOR – United Nations Protection Force
UNSC – United Nations Security Council

UPDF – Ugandan People’s Defence Forces

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