Extraterritorial Use of Force against Non-State Actors

Article excerpt


In 2011, the liquidation of Osama bin Laden, the confirmation of the President of the United States' authority to detain non-state belligerents until the end of the war on terror, (1) and the unabated use of targeted killings by US and Israeli forces outside US and Israeli territory demonstrated the continued topicality of Noam Lubell's study of the extraterritorial use of force against non-state actors. At the same time, the continued controversy over the legality of these anti-terrorist measures shows that an international consensus on the legal limits of the war on terror remains elusive. Undoubtedly, in order to stand a chance of success, legal frameworks must be pragmatic--that is, must pay sufficient attention to states' desire to uproot the terrorist threat, while paying due regard to humanitarian considerations. It is exactly such a framework that is developed by Lubell, and policy-makers and military planners may do well to draw on it.

While Lubell's book is very topical indeed, states' use of force against non-state armed groups and individuals located outside their borders is not an entirely new phenomenon. After all, the seminal case of self-defence in international law, the 1837 Caroline Case, involved the use of force by Canadian troops against (non-state) rebels on US soil. (2) Also, since the late 1960s Israeli forces have not shied away from carrying out targeted killings against (non-state) Palestinian militants. (3) But it was only after the September 11 attacks, and the start of US military action against al-Qaeda, that the permissibility of using extraterritorial force against non-state actors rose to prominence. (4)

Such action raises a host of--at times interrelated--issues: the encroachment of another state's territorial sovereignty through a liberal interpretation of the right to self-defence, the difficulty of characterising terrorists as combatants or civilians, and the question whether armed activists operating abroad fall within the jurisdiction of states for purposes of applying human rights to them. Therefore, Lubell has approached his topic in a holistic way, examining the challenges to three branches of international law: the legal framework regulating the use of force (jus ad bellum), international humanitarian law ('IHL'), and international human rights law. These challenges can be, and have been, addressed ut singuli in different recent monographs. (5) But as those publications do not specifically focus on non-state armed groups, their activities and states' responses thereto may not receive the attention due to them. On the other hand, Lubell has to introduce, in a rather slim volume, a number of general concepts, such as the contours of self-defence and the extraterritorial application of human rights treaties. His monograph thus tackles questions that are not necessarily only germane to armed non-state actors (for example, the lawfulness of anticipatory self-defence or the reach ratione loci of international human rights treaties), and that have in fact been discussed in more detail and perhaps with more sophistication elsewhere. (6) Conversely, when a question is germane to non-state actors, such as the notion of civilians' direct participation in hostilities, the other focus of the book--extraterritoriality--somewhat disappears from view in Lubell's discussion. Lubell is not entirely to blame for this, however, as extraterritoriality is part and parcel of the nature of IHL and is accordingly not controversial; indeed, IHL could hardly serve a regulatory function if it could not be applied to the armed activities of states outside their borders.

The most striking aspect of Lubell's book is perhaps his reluctance to plead in favour of an overhaul of the law as far as projecting extraterritorial force against non-state actors is concerned. …