ABSTRACT

Charting the Legal Geography of Non-International Armed Conflict   [open pdf - 425KB]

"United States extraterritorial drone and special operations continue to generate international and domestic controversy. Much of the debate surrounds the legality of crossing State borders to conduct the missions. Although commentators sometimes look to international humanitarian law (IHL) as the source of authority for transborder operations, the existence of an armed conflict in which IHL applies generally has no bearing on the extraterritoriality question. As has been discussed elsewhere, the primary international law bases for extraterritorial operations are instead consent and self-defense--aspects of the 'jus ad bellum', not the 'jus in bello'. However, the existence of an armed conflict does fix the legal regime that controls 'how' extraterritorial operations have to be conducted. The fundamental legal question in this regard is whether the 'lex generalis' of international human rights law (IHRL) or the 'lex specialis' of IHL binds a State's extraterritorial application of force. […] This article examines the geographical reach of IHL during an armed conflict between a State and a non-State organized armed group. Its purpose is to explore how location affects the applicability of the differing legal regimes. Discussion will focus predominantly on non-international armed conflict (NIAC), for that genre of hostilities poses the greatest interpretive conundrums. It is an inquiry of momentous practical importance since IHL's range (or lack thereof) influences operational planning and mission execution, determines how civilians and civilian objects must be protected during hostilities, sets the applicable detention regime, and affords avenues for enforcement of norms that are not otherwise available."

Author:Schmitt, Michael N.
Publisher:Naval War College (U.S.)
Date:2014
Copyright:Public Domain
Retrieved From:U.S. Naval War College: http://www.usnwc.edu/
Media Type:application/pdf
Source:International Law Studies (2014), v.90 no.1
URL:https://www.hsdl.org/?view&did=749963
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