Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force

12Feb/130

Geography and the Scope of Armed Conflict

In Opinio Juris, Kevin Jon Heller points to an interesting paper by Noam Lubell and Nathan Derejo of the University of Essex about the geographical scope of armed conflict.  The focus is on the geographical scope of armed conflict with the use of drones:

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.

.  .  .

[T]he unqualified extension of IHL to the whole of the state experiencing an armed conflict is both an unnecessary and potentially dangerous application of IHL. Equally problematic however is restricting the scope of IHL to the primary geographical sphere of hostilities (the so called ‘hot-zone battlefield’), which not only produces counter-intuitive results, but is also not supported by conventional IHL or existing jurisprudence. The application of IHL is dependent upon the existence of an armed conflict, which necessitates the manifestation of hostilities, and IHL regulates those hostilities, wherever they spread. This appreciation however does not endorse the concept of a ‘global battlefield’ whereby the entire planet is subject to the application of IHL. In assessing whether IHL applies to a particular drone strike, the foundational analytical step is determining the existence of an armed conflict between the state carrying out the strike and the armed group being targeted (general nexus to an armed conflict). In addition, as neither the battlefield nor hostilities necessarily relocate with individuals who were previously on it or engaged in them, it must also be determined that these individuals are in fact directly participating in hostilities and therefore do not enjoy civilian protection from attack (including the requirement of belligerent nexus). Drone strikes do not necessarily extend the battlefield; those that occur against legitimate targets within an already existing conflict are by default occurring in an area to which the conflict participation has already spread.

Read it all here on SSRN .  Thje paper will appear in the Journal of International Criminal Justice, as part of symposium.

Charles A. Blanchard
General Counsel
United States Air Force