"Extraterritorial Use of Force Against Non-State Actors," by Noam Lubell

Reviewed by Kenneth Anderson

Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford 2010)

Kimberley N. Trapp, State Responsibility for International Terrorism (Oxford 2011)

Hew Strachan and Sibylle Scheipers, The Changing Character of War (Oxford 2011)

Targeted killing through drone warfare has altered international legal discussion around the use of force from an intense focus on custodial issues – detention and interrogation – to what might be called the "what, where, by whom, and against whom" of lethal force projected extraterritorially. The ramp-up of targeted killing through drone warfare by the Obama administration from 2009 onwards and the wide-spread appreciation in the United States, at least, that the new technologies are more sparing of civilians, more protective of own-forces, and much cheaper has only increased the sense that detention is something of a “legacy” issue and that the ramifying uses of drones, including in discrete targeted lethal attacks, is a vital legal issue of the future.

Two new books offer usefully systematic assessments of the background international law to these fraught issues; both are in an Oxford monograph series publishing dissertations, and the two books, by European academics, possess the virtue of offering logical orderings of abstract and intertwined topics, along with an orderly assessment of the positions around each central question. The first, Extraterritorial Use of Force Against Non-State Actors by Noam Lubell, examines the background question in jus ad bellum of when it is lawful for a state to use force across borders against non-state actors such as terrorist groups. It then turns to the correlate question of jus in bello – what body of law governs such activities in one or another circumstance, assuming that they are sometimes lawful, the laws of armed conflict or international human rights law, or both.

Lubell writes with an impressive attention to actual and historical state practice – a rare distinction among international law academics, for whom nearly any written document, particularly from some tribunal, often seems favored over accounting for what states actually do. It shows the influence of his dissertation advisors, the highly regarded Francoise Hampson particularly, who has long insisted to her own human rights advocacy community that it must take state practice seriously. The monograph is sensitive to a wide variety of factual and legal possibilities that other academics often tend to dismiss out of hand – such as the proposition, and the effects, if the conflict with Al Qaeda is regarded as a non-international armed conflict (NIAC), or that it is considered to be a “unitary” armed conflict against a non-state actor wherever its agents go. Lubell is even-handed in reporting on the argument between the International Committee of the Red Cross and the human rights advocacy/academic community and a number of leading military lawyers on the vexed question of “direct participation in hostilities” and “continuous combat function.”

Moreover, he contemplates as an analytic legal possibility that there might indeed be uses of force that are lawful as self-defense under jus ad bellum, but which are not part of a pre-existing armed conflict and which do not themselves rise to the level of an armed conflict in the legal meaning of a NIAC, and which therefore raise questions as the legal standards that govern them. Since this might well be the future as contemplated through the strategic lens of drone warfare and targeted killing – discrete uses of force addressed against non-state terrorist targets in weakly governed locales, where the use of force is intended to forestall the development of hostilities at a level leading to an actual (NIAC) armed conflict – this possibility is important at least to entertain. Given that this is a legal characterization held open by the US Department of State – what in my own writing I have sometimes called “naked” self-defense – it is important to be clear what legal standards govern the conduct of something that might not, as a technical legal matter, constitute armed conflict. That is so even if the answer is simply to say, as the United States has done, whether it is technically armed conflict or is not, every use of force is governed by the bedrock law of war principles of necessity, distinction, and proportionality, and in any case the standard of conduct cannot be below that of technical armed conflict.

So this is an impressive book with a useful place on the bookshelf for the practicing public international lawyer as well as the academic. It is clear and orderly, and exceedingly restrained about offering a view – and not at all an exercise in brief-writing. Kimberley N. Trapp’s State Responsibility for International Terrorism is likewise admirably restrained and equally well-ordered. The issue here runs to a matter deeply implied by the paradigm of targeted killing through drone warfare. To wit, the United States says that the rights of a sovereign state to territorial integrity must give way where, and to the extent, that state is unable or unwilling to address a non-state actor terrorist in its midst. The United States has said so for a very long time, stretching back to the 1980s and even further; a long list of other states have either said so, acquiesced in, or taken actions in accordance with this qualification on state sovereignty, as the German scholar Theresa Reinold points out in a detailed examination of state practice on this issue in 105 American Journal of International Law 2 (2011).

Trapp’s monograph addresses something like the obverse of this proposition – when and in what ways are states responsible for international terrorism, and what the categories and consequences of state responsibility might be. This responsibility might arise in a variety of ways, including affirmatively offering terrorists haven or acquiescing in it; supporting terrorist organizations through money, materiel, training, or other logistics; and other ways. The monograph examines the international treaty regimes that address terrorism at the international level – and obligations that might arise to punish terrorist acts or not to offer state support. It addresses the questions of where a state might go in the international system for redress against a state that is arguably supporting or sponsoring terrorists, or refusing to punish terrorist acts – including the highly contentious question of attribution of state responsibility in the first place.

Trapp focuses largely on the international legal system and international organizations – rather than focusing where, to be sure, many American policy-makers would focus, on the lawfulness of an armed, cross-border response. In reality, however, most state-sponsored terror is addressed, however adequately or inadequately, through these international legal tools, sanctions regimes, diplomacy, law-enforcement efforts at local arrest and extradition, and so on. Resort to force, including by the United States, is a rare action historically. Once again, the clear organization and restrained descriptive tone of this book make it a useful addition to the lawyer’s technical bookshelf.

Finally, a volume edited by two UK academics, Hew Strachan, author of many well-known historical works on war, and Sibylle Scheipers - entitled The Changing Character of War - seeks to take on the changes in warfare occasioned by September 11. Non-state actors, transnational terrorist groups, religiously motivated jihadists, insurgents, and so on – in what ways have conflicts changed? This volume is lengthy and densely populated by a long list of writers from a long list of disciplines, ranging from history to ethics to strategic studies. Law is only a small part of the enterprise in a book in which Brookings scholar Peter Singer talks about battlefield robots, terrorism scholar Bruce Hoffman talks about the comparative demographic characteristics of terrorists across the last century, and philosopher Henry Shue talks about the morality of target selection.

A volume such as this normally has one of two uses – either deployment as a classroom text of readings, or a means for the reader to dip into this article or that for particular purposes. It is hard to grasp so many writers and topics as a whole, important as that synthetic, interdisciplinary exercise is. There are many outstanding articles in this book; they are not especially linked to one another, however. Most of the offerings avoid polemic; a notable exception is the editors’ own introductory essay, which has an oddly sneering tone directed particularly at Philip Bobbitt and his book Terror and Consent. (It alleges of Americans for good measure that their post-9/11 reaction was merely a wave of “hysteria.”) Readers should not be deterred by this inauspicious beginning to what is actually an interesting collection.

The Changing Character of War does suffer, however, from having apparently been drawn from meetings and conferences held before 2009 – before the Obama administration actually changed the character of war by ramping up the use of drones and targeted killing. Drone warfare and targeted killing is discussed only by Peter Singer in something drawn from his path-breaking – but now already somewhat dated – book Wired for War. Otherwise the focus is very much on the forms of war from earlier in the decade, which is to say, mostly about conventional war and countersinsurgency, on the one hand, and “war” in a mostly metaphorical sense of how one addresses jihadist transnational terror, on the other, including detention and interrogation of suspects, and coordination with allies on such things as arrests and renditions.

As the Obama administration winds down the conventional wars that arose after 9/11, Afghanistan and Iraq, the focus of US counterterrorism use-of-force abroad will gravitate more and more toward discrete, “intelligence-driven uses of force” that taken individually, were they not already part of an overall armed conflict against Al Qaeda, might not rise to the level of sustained fighting that constitutes a NIAC. It will be a distinctly minority part of the national security strategy of the United States – as NATO fades in importance and the South China Sea looms – but it, whether through drones or human teams from CIA and military joint special operations, will be the preferred mechanism for using force in cross-border counterterrorism. Other things will alter that in the future, but today, this is more precisely what the changing character of counterterrorism war against non-state actors looks like. It is perhaps time to start talking about the legal standards in jus ad bellum and jus in bello for "intelligence-driven uses of force" in their increasing variety - or what, more colloquially, would be called covert action.