Acting as a Sovereign versus Acting as a Belligerent
In many legal disputes, the selection of one body of law rather than another is outcome-determinative. The situation with targeted killings is no different. Although there are contrary impulses at the margins, in the main a human rights paradigm is more likely to restrict such operations while a law of war paradigm is more likely to sanction it. But the question is when each body of law applies, a question that is not explicitly addressed by either body. By looking at the underlying object and purpose of each body of law, however, an account of their respective spheres becomes apparent. This essay defends the claim that the dividing line is represented by a state acting as a sovereign as opposed to acting as a belligerent. In the former situation, the state acts as a ruler over its subjects and its activities are constrained by human rights law. In contrast, when the state acts as a belligerent during armed conflict, International Humanitarian Law regulates its actions. This essay provides a framework to determine when the state is acting in one mode rather than another: acting as a sovereign involves an unequal relationship (ruler-to-ruled), while belligerency is characterized by two, formally co-equal collectives facing each other in battle. At the closing stage of an armed conflict, the relationship of belligerency may give way to sovereignty, a transition point that is often characterized by the law of occupation. The argument is both normative and descriptive in the sense that the two bodies of law already embody these normative distinctions; therefore their respective application is currently delimited by these existing principles.
Sovereignty, Belligerency and the New Normal in Cyberspace
This essay will discuss how intrusive (hacking) cyber espionage in peacetime is legally justified, in particular by some US defence sources. In their reading, “cyberspace” has become a virtual “space” of exception from the usual peacetime rules of respect for sovereignty. Given the ubiquitous and interlinked nature of “cyberspace”, exceptions previously applicable only in war or in other hostile relations have now de facto become the rule, and states have sought ways to rationalise and justify that, without openly flouting the established categories of war, peace and sovereignty. In the United States, this has occurred through a very limited conception of sovereignty (sovereignty-as-a-non-binding principle). This leaves much of “cyberspace” in a legal no-mans-land, or more adequately, a free-for-all-land, in which states can search and manipulate data on computers in foreign states without much legal consequence. This very limited conception of territorial sovereignty is related to the metaphorical spatialisation of the Internet as a new “domain”, a “cyberspace”, rather than as a network of hardware located in interlinked but still separate national jurisdictions.
Extraterritorial Use of Force Against Non-State Actors
Introduction PART I: THE INTER-STATE RELATIONSHIP: EXTRATERRITORIAL USE OF FORCE AND SELF-DEFENCE AGAINST NON-STATE ACTORS 1. The Possibility of Self-Defence Against Non-State Actors 2. The Parameters of Self-Defence 3. Measures Taken Outside the Self-Defence Framework Part I Conclusion PART II: INTERNATIONAL HUMANITARIAN LAW 4. Force Against Non-State Actors as Armed Conflict 5. Non-Traditional Models of Armed Conflict 6. Status of Individuals and the Regulation of Force Part II Conclusion PART III: INTERNATIONAL HUMAN RIGHTS LAW 7. The Principal Practices and Primarily Affected Rights 8. Extraterritorial Applicability of Human Rights Law 9. Concurrent Applicability of International Humanitarian Law and International Human Rights Law Part III Conclusion Concluding Chapter