Reaffirming the Role of Human Rights in a Time Of ‘Global’ Armed Conflict

Abstract

A notion that there exists under international law the possibility of a “global” or “transnational” non-international armed conflict (or “global NIAC”) rests on the assertion that a state that is party to a NIAC may use the law of armed conflict (LOAC) to target an enemy fighter anywhere he or she goes in the world. If true, a global NIAC may permit a state to lawfully drop a bomb on an enemy fighter who sits for a coffee in the middle of a peaceful city, say London, Rabat, or Hong Kong. Amongst a series of concerns this Essay highlights, a global NIAC would also permit, under the LOAC principle of proportionality, incidental civilian harm and destruction of civilian property. A global NIAC makes war omnipresent and forever looming. These consequences are unsettling and require a serious evaluation to determine if international law does in fact permit such an expansive understanding of war. Utilizing the public international law of interstate use of force, human rights, and LOAC, this Essay concludes that the concept of a global NIAC cannot exist without there being a violation of international law, although notably the violation that this Essay focuses on is that of the territorial state rather than the attacking state. This does not mean that a state cannot respond to attacks and threats from non-state groups abroad. It means that concepts other than a global NIAC must be relied upon to justify extraterritorial use of force.

Keywords: Consent, Human Rights, Armed Conflict, Self-Defense, Non-International Armed Conflict, International Humanitarian Law, Laws of War, Military Intervention, Extraterritorial