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Book Review: Noam Lubell, Extraterritorial Use of Force against Non-State Actors

Book Review: Noam Lubell, Extraterritorial Use of Force against Non-State Actors (Oxford: OUP, 2010) ISBN 978-0-19-958484-0

Dr. Fozia Nazir Lone (Assistant Professor and Programme Leader LLB, City University of Hong Kong,

Noam Lubell, Reader in the School of Law at the University of Essex, and an Adjunct Lecturer at the Irish Centre for Human Rights at the National University of Ireland, presents in this book a clear doctrinal description on very controversial issues surrounding extraterritorial use of force against the non-state actors. This book was the author’s doctoral thesis that he successfully competed at the University of Essex. The book analyzes the basic legal frameworks concerning extra-territorial use of force and its use in the contemporary international law. The frameworks that the author is using in this book were popularized with the so-called ‘war on terror’. To answer the crucial controversies on this topic, Lubell’s book provides a thorough insightful review on use of force on non-state actors from the three international legal frameworks of: the United Nations Charter and framework of international law regulating the resort to force in the territory of other states; the law of armed conflict (international humanitarian law ‘IHL’); and the law enforcement framework found in international human rights law (‘IHR’). Lubell examines the applicability of these frameworks to extra-territorial forcible measures against non-state actors and analyses the difficulties and challenges presented by application of the rules to these measures. The author points out that not all these frameworks are applicable in all the situations and it is a topic of great controversy as to which framework is applicable to certain set of circumstances. Hence, Lubell justifies the need of dealing with these three frameworks together and navigate between these frameworks to find out if these frameworks can fill the gaps in particular circumstances of armed conflict. However, the main focus is on how the use of force in armed conflicts is deployed particularly in the international/non-international armed conflicts in relation to the formal parties and the civilians/unlawful combatants involved. In this context the book also examines the contested applicability of human rights treaty law on the armed conflicts.

This work is divided into 9 chapters and introduction and conclusion. Chapters are organized under three parts and each part has a common introduction and conclusion but also individual introductions. Each part set the themes for the set of closely knit chapters. Introduction sets the background on the use of force for historical as well as the contemporary perspective (Al Qaeda, Pakistan, Afghanistan, Somalia etc.). It also clarifies the legal framework used, structure and definitions.

Part I contains three chapters and a common conclusion. Part I discusses the situations in which the extraterritorial forcible measures are conducted without the consent of the territorial state against a non-state actor located in the territory of another state. Keeping up with this theme chapter 1 discusses the possible self-defence against the non-state actors under the existing framework such as the prohibition on use of force; the UN Charter; self defence and armed attack against and by the non-state actors. This chapter then reflects on how these debates are affected when the force in question is directed on a non-state actor located in other state hence explores the exterritorial scope of this legal framework. On this point Hezbollah and Lebanon situation is extensively discussed to illustrate the controversies in determination of actual factual situation, which remains unclear as to use of force in a state but not against that state. Chapter 2 then provides a systematic review on the parameters of self-defence i.e. necessity and proportionality that state claims based on an armed attack by a non-state actor. This part is reviewed from the perspective of customary law – (Caroline Case – pre-emptive self-defence) as well as contemporary examples of Falklands, Afghanistan, Al Qaeda, Taliban and Democratic Republic of Congo etc. The aim appears to conclude that ‘inability or unwillingness’ of the territorial states to take action against the non-state actors would justify action by the affected state against the non-state actors located in territorial state. The discussion in this chapter is well tread ground and can be found in any book on use of force against non-states actors. Chapter 3 discusses the forcible measures taken by the military troops without the consent of territorial state. The author raises a significant question, which the use of force is seen falling outside the international law unless it is taken in the self-defence context. The author argues that unilateral forcible extraterritorial counter-measures are not an acceptable framework in the contemporary international law even though some do argue development of alternate paradigms exist. He asserts unilateral forcible measures can be justifiable in certain circumstances such as hot pursuit not otherwise.

Part II comprises of three chapters and a common conclusion. Part II deals with international humanitarian law framework in the context of use of exterritorial force against the non-state actors. This part also highlight the controversies in relation to the use of forcible measures which may not comfortably fall within the traditional model of international or non-international armed conflict. This part is also useful in understanding whether the particular situation fall in the model of non-international or international armed conflict. Chapter 4 clarifies the definition of armed conflict, armed attack, international armed conflict, non-international armed conflict, threshold for determining non-international armed conflict and identifying parties. The author describes, using the contemporary examples of Al-Qaeda (Afghanistan) and Hezbollah (Lebanon), intricacies in the applicability of the IHL rules from the perspective of situations, which may not perfectly fit within the traditional models. Chapter 5 focuses on the non-traditional models of armed conflict and explores beyond chapter 4 by trying to discover a third possibility that the non-traditional armed conflict does not fit in two recognized categories of armed conflict although they might fall into the realm of IHL. This chapter discusses the situations in which the ius ad bellum might be applicable to the recourse of force however the actual provisions on use of the force would be of nature of non-international conflict (ius in bello). The author argues that the ius ad bellum framework is designed to restrict the use of force between states rather than any internal exercise of force. This remains true, however, it goes without saying that the Common Article 3 of Geneva Conventions remains applicable to even internal armed conflicts. Chapter 6 discusses the status of individuals and the how the use of force is regulated depending on the status of an individual such as combatants, civilians, direct participants in hostilities, unlawful combatants, non-state groups (organized and unorganized armed groups) etc. Based on this categorization the author discusses status of each group in the armed conflict and the difficulties that arise in applicability of rules on conduct of hostilities (proportionality & prohibition of perfidy).

Part III discusses the human rights law framework in the context of armed conflict and has a common conclusion. In this part the author explains even though international human rights law regulates the relationship between the individuals and the state it does not pose any serious obstacles as the discussion is on using force against non-state actors. In this context, I would like to point out that since the human rights law operates in a linear manner therefore to find exterritorial state accountable for the human rights violations in the territorial state definitely poses a serious problem. The author endeavors to discuss the obligations enumerated in international human rights law that can be extended extraterritorially and examines the precise criteria and tests to determine the types of forcible measures that could be covered by this law. The relationship between IHR and IHL is also discussed. Chapter 7 focuses on human rights that may be violated during the military operations such as killings and torture and other ill-treatment, abduction and liberty and security of person and derogation etc. The aim seems to comprehend the significance of identified human rights and how these standards can standardize force against the individuals. Chapter 8 broadly discusses the exterritorial obligations of state as applicable to IHR of territorial state. The chapter discusses to what extent it is possible for extraterritorial obligation to exist and to what extent is it created by treaties law and beyond. The author discusses the conditions for extraterritorial applicability of the human rights law and when it can afford the protection to people of territorial state. Chapter 9 elaborates the discussion of chapter 8, and discusses the concurrent application of IHL and IHR. The chapter explains that even if human rights obligations may extend extraterritorially it will still depend on whether other laws such as IHL were applicable on it that may change the interpretation of the human rights obligation. The author views the situations on which concurrent application of IHL and IHR are applicable as problem areas of IHL law itself which needs to be clarified for solving the long-standing debates in this area of law. Finally, the conclusion of this book summaries the major arguments and discusses again the Israel- Hezbollah 2006 and targeted killing in Yemen and strikes in Pakistan from the perspective of various chapters of this work.

This is a thoughtful book with cases carefully selected regarding the use of force, and assists the reader in understanding different facets of the frameworks provided by the author in some depth. Having said that, hardly any legal scholarship is perfect and this book is no exception. The content of this book is clear, however the language and style are reminiscent of any doctoral dissertation. For the author’s consideration in the next edition it would be useful if further modifications are carried out to properly convert this scholarship into a book format. In my view, this work would have benefited if the introductory chapter was longer and repetitions were deleted that would have given the author more space to add more materials and explanations. Elaborating the distinction between terrorism and situations of armed conflict would have been more useful. This would also have assisted in flow of idea as too many heading in introduction could be distracting. The addition of headings, such as definition and structure in the introductory chapter is unnecessary and renders that work similar to a dissertation. Likewise, adding introduction to each part and then a chapter introduction is superfluous and repetitive.

Overall, this book is a valuable contribution for understanding the exterritorial use of force against non-state actors from the author’s three different frameworks. Lubell’s book is a commendable piece of research and a must read for academics, students and social scientist in the field of law, politics, social science and security studies.

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