Lubell and Derejko on the Geography of NIAC

by Kevin Jon Heller

Noam Lubell and Nathan Derejko, both at the University of Essex, have posted “A Global Battlefield? Drones and the Geographical Scope of Armed Conflict” on SSRN. The essay will appear in the same Journal of International Criminal Justice symposium as my essay on signature strikes. Their abstract is all of one sentence, so here are the first couple of paragraphs:

Defining the geographical scope of an armed conflict is a matter that carries weight in more ways than one. Outside the legal sphere the question might seem like one that requires nothing more than common sense – if two (or more) parties are engaged in battle, then the area of conflict is wherever they are fighting. The reality – or at least the legal reality – is unfortunately one that does not conform to simple formulations. Being ‘at war’ or ‘going to war’ does not necessarily mean that the whole of a state is in fact embroiled in an armed conflict. For example, while most of Iraq became a zone of armed conflict in 2003, life for most people in the United States continued uninterrupted while its troops invaded a country on the other side of the globe. This can even be the case for both states involved, as was seen in the 1982 Falklands/Malvinas conflict between the UK and Argentina. The same is true for armed conflicts between a state and an organised armed group, which may be raging in one part of the country with little manifestation in other areas as is evident from the armed conflict between the armed forces of the Philippines and the Moro Islamic Liberation Front (MILF), which, for more than 20 years, was largely confined to the southern island of Mindanao. Clearly then, the actual hostilities do not necessarily correspond with the borders of the states(s) concerned. Another possibility is to base the determination of geographical scope on the existence of actual fighting. In other words, wherever there are hostilities, there is an armed conflict. But this too has its obstacles, including the question of how to determine what should count as hostilities, and whether there must be a temporal consistency within a specific geographical area that would eliminate occasional flare-ups from the scope. These issues will be returned to in greater detail in later sections.

Our focus is on the particular challenges raised to the geographical scope of armed conflict by the use of unmanned aerial vehicles, commonly referred to as drones. Much has been written about drones from a variety of perspectives,4 and we do not intend to repeat all the debates. Instead, the aim of this work is to asses not the drones themselves, but rather to examine one of the perceived ways in which the use of drones is affecting, if not leading, to the metamorphosis of armed conflict. The very notion of armed conflict appears to be going through a process of shape-shifting whereby the use of new technologies such as drones or cyber-operations are slowly erasing the crucial significance of geographical boundaries, truncating vast distances, and diminishing the need for boots on the ground.

The essay is absolutely superb — I wish I had written it myself. If I have one criticism, it’s that the authors could have spent more time discussing what actions suffice to establish that an individual located away from an active combat zone has assumed the kind of continuous combat function in a terrorist group that makes him targetable at any time, not simply when he directly participates in hostilities.

In any case, it’s a must-read. Check it out.

http://opiniojuris.org/2013/02/08/lubell-and-derejko-on-the-geography-of-niac/

2 Responses

  1. “The very notion of armed conflict appears to be going through a process of shape-shifting whereby the use of new technologies such as drones or cyber-operations are slowly erasing the crucial significance of geographical boundaries, truncating vast distances, and diminishing the need for boots on the ground.”

    I suspect that the real shape shifting is the “unable and unwilling” formulation that some seek to argue is a legal rule as opposed to a political rationalization to aggression into self-defense. That formulation is the link across geography for the NIAC vision.

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