Editors’ Picks: Hot Battlefields and Areas of Active Hostilities

Annotations by Bieta Andemariam, a student at New York University School of Law with assistance from Just Security’s senior editorial team

The White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, May 23, 2013.

On May 23, 2013, in conjunction with the President’s speech before the National Defense University, the White House issued a Fact Sheet on U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities. This document states the President’s commitment to using all available tools to fight the terrorist threat and his adherence to legality and transparency. The Fact Sheet sets forth the “key elements” of the written standards and procedures guiding the use of force outside of “areas of active hostilities.” These elements include the standards for the use of lethal force and governmental coordination and review.  find online » [whitehouse.gov]

Major Richard R. Baxter, So-Called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs, 28 Brit. Y.B. Int’l L. 323 1951.

In So-Called Unprivileged Belligerency: Spies, Guerrillas and Saboteurs, Baxter examines a class of combatants that, in his view, forfeit protections under international law: “guerrillas, partisans, and ‘war-traitors.” According to the author, due to their disregard of the norms of war (wearing an identifying uniform, disclosing their arms openly, etc.) and attendant increased threat of danger to the state, this class of combatants may be dealt with solely under domestic laws. Baxter terms this group “unprivileged belligerents” – those that do not derive the benefits of being classed as either “prisoners of war” or “civilians.” An integral part of Baxter’s argument involves a geographic conception of the law of armed conflict: because Articles 5 of Geneva Convention (IV) on Civilians, for instance, refers only to the territory of the detaining power and occupied territory, unlawful belligerents who are located outside such areas are omitted from protection. Baxter tries to draw some boundaries to circumscribe the potential expansiveness of “zone of operations” in which such belligerents forfeit international legal protections. For example, he would exclude areas that are simply “exposed to the danger of attack by guided missiles, rockets, and parachute troops.” Nevertheless, the author maintains that the distinction between different territorial areas is relevant to protections afforded belligerents with unprivileged status.  find online » [Heinonline]

Derek Jinks, The Declining Significance of POW Status, 45 Harv. Int’l L.J. 367 (2004).

In The Declining Significance of POW Status, Jinks argues that the practical difference between individuals deemed POWs and those deemed non-POWs has grown slim. He maintains that, while conventional wisdom suggests that drastic protective and policy consequences turn on this classification, only a few gaps between their treatment actually exist under international law. In support of his theory, Jinks critiques Baxter’s argument that the Geneva Conventions do not apply to active battlefields (see above). Specifically, Jinks disputes as unfounded the notion that unlawful combatants in the “zone of operations” are not protected under the Conventions. On this view, the Conventions regulate not only warfare but also internal security and order maintenance, and therefore the “zones of operations” as conceived in Baxter’s article are irrelevant, and the true test of who falls under the Conventions is whether they are “war victims.” Jinks also argues that, in accordance with a close reading of the treaty text, a residual category of protections still applies even under Baxter’s territorial approach.  find online » [Harvard International Law Journal] [Heinonline] [SSRN] [Lexis] [Westlaw]

Mary Ellen O’Connell, Combatants and the Combat Zone, 43 U. Rich. L. Rev. 845 (2008).

In Combatants and the Combat Zone, O’Connell examines the term “combatant” under President George W. Bush’s administration in comparison with definitions under international law. O’Connell contends that, unlike the definition of combatant under international law, the Bush administration’s approach produces a situation in wich combatants could exist without relation to armed conflict. In defining an armed conflict, O’Connell argues that a single or unilateral attack, regardless of intensity, cannot be considered an armed conflict. O’Connell rejects the argument of a “protracted” conflict rising to the level of armed conflict under international law, or an armed conflict that lacks a spatial dimension. For O’Connell, armed conflicts cannot extend across multiple borders. O’Connell argues for retiring the law of armed conflict from the fight against Al Qaeda, and advocates prosecution of such individuals under criminal law. find online » [University of Richmond Law Review] [SSRN]

Claus Kress, Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts, 15 J. Conflict & Security L. 245 (2010).

In Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts, Kress argues that the principles of international law are already sufficiently equipped to handle problems involving how states should respond to nonstate actors within foreign borders—a phenomenon Kress terms “transnational armed conflict.” Kress sets up an analysis through a hypothetical case scenario, laying out the issues in plain language. In Kress’s analysis, international law permits states attacked by nonstate actors to respond in self-defense, but limits how and, importantly, where such responses may take place. In Kress’s analysis, enemy combatants must be actively launching their attacks from within a state for retaliation to be allowed within that state’s borders. He considers such a situation to be a “pure transnational armed conflict model,” in which one state assumes the duties the other state has failed to meet, and he argues that such scenarios need no new legal framework. find online » [Journal of Conflict and Security Law] [EBSCO]

Laurie R. Blank, Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters of the Zone of Combat, 39 Ga. J. Int’l & Comp. L. 17 (2010).

In Defining the Battlefields in Contemporary Conflict and Counterterrorism, Blank eschews the more philosophical legal analysis regarding the “zone of conflict,” and grounds her argument in the physicality of the battlefield. Posing the question “where is the battlefield and how long does it remain so?” Blank examines traditional notions of the battlefield in space and time, what those conceptions mean for states’ ability to lead or react with force, and how such conceptual models are applied to the current global counter-terrorism effort as it moves beyond the recognizable battlefields of Iraq and Afghanistan. Blank contends that the laws of belligerency and neutrality, even by way of analogy, are unworkable in contemporary conflicts with nonstate actors. She relies on other traditional laws of armed conflict, balancing military necessity and humanity, to guide her ultimate conception of the battlefield. That conception integrates three factors: the concentration of the combatant organization’s activities; the defending state’s actual exercise of military force; and the territory used by the combatants such as their training camps or safe haven. find online » [Georgia Journal of International and Comparative Law (PDF)] [Heinonline] [SSRN]

Charlie Savage, At White House, Weighing Limits of Terror Fight, N.Y. Times September 15, 2011.

Premiere national security journalist Savage reports on the Obama administration’s decision whether to target low-level al-Qaeda militants, the outcome of which could expand the geographical scope of the conflict because many of these rank-and-file members are located in Yemen, Somalia, and elsewhere. The article includes interviews with academic, governmental, and other figures, as well as a discussion of the use of drones and “signature strikes” as methods of expanding the practical reach of armed conflicts. find online » [New York Times]

International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 31IC/11/5.1.2, October 2011.

As a key actor in armed conflict, the International Committee of the Red Cross explicates its position in the debate over the geographic boundaries of conflict in a Report entitled International Humanitarian Law and the Challenges of Contemporary Armed Conflict. The ICRC contends that the notion that a combatant “carries” an armed conflict with him to a non-belligerent state should not be accepted, citing civilian safety concerns. The Report states, for example, that “[t]he proposition that harm or damage could lawfully be inflicted on [civilians] in operation of the IHL principle of proportionality because an individual sought by another state is in their midst … would in effect mean recognition of the concept of a ‘global battlefield.’” find online » [ICRC]

Jennifer Daskal, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone”, 161 U. Penn. L. Rev. 1165 (2013).

In The Geography of the Battlefield, Daskal, who recently served in the National Security Division of the Department of Justice, addresses whether there are geographic constraints in the conflict with Al Qaeda and associated groups–whether a state’s right to use detention and targeting power extends to wherever an enemy combatant is found. According to Daskal, the United States has invoked standards related to international armed conflict and construed them to include a “broad, geographically unlimited definition of who qualifies as a member of the enemy force.” She contends that the alternative model—the “territorially restricted view”—is not well grounded in treaty law or strategic thinking.  In her proposal, Daskal essentially splits the difference between these two models. She argues for a new framework that involves substantive and procedural rules to constrain the use of lethal targeting and detention outside “zones of active hostilities.” Those constraints include an individualized threat requirement, a least-harmful-means test in the decision to kill or capture, and heightened procedural safeguards. Daskal’s article synthesizes significant areas of US case law suggesting that such legal distinctions should turn on whether actions occurred in areas of active hostilities. find online » [University of Pennsylvania Law Review] [Heinonline] [SSRN]