Readings: "Charting the Legal Geography of NIAC" by Michael Schmitt

I'll be participating this week in a Naval War College workshop on "Legal Implications of Autonomous Weapons," and since my presentation topic at the workshop is "area of operations" with respect to autonomous weapons, I thought it might be a good idea to check on any recent scholarship on what has come to be called the "legal geography" of conflict. Michael Schmitt (who is organizing the weapons workshop at the Naval War College) has just posted a new article on this topic to SSRN, as it turns out.  It is "Charting the Legal Geography of Non-International Armed Conflict," 90 International Legal Studies 1 (2014). It is usefully read in tandem with his 2013 Columbia Journal of Transnational Law article, "Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law."  Written with his customary crisp organization and doctrinal clarity, "Charting the Legal Geography" is a very helpful quick march through the background to the question of the "legal geography of war," the evolution and main doctrinal views on the table today, and his own views. I wrote about this topic a couple of years ago in a short paper for the Hoover Institution Task Force on National Security and Law, "Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a 'Legal Geography of War'." The leading law review article to date (arguing for a legal geography of conflict paradigm) is by my Washington College of Law colleague Jennifer Daskal, "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone," in the University of Pennsylvania Law Review.  The International Committee of the Red Cross, in the 31st Annual Report of the Red Cross Red Crescent (2011, at p. 22), rejected the "notion that a person 'carries' a NIAC with him to the territory of a nonbelligerent state."  The Obama administration (as Benjamin Wittes and I explain in this book chapter) holds to the US government's traditional view that a lawful target does not cease being a lawful target under the laws of war in virtue of crossing a border - the restrictions in any particular circumstance, if any, arise under jus ad bellum considerations of the rights of neutral states, subject to the "unable or unwilling" test, articulated by Ashley Deeks in her 2012 Virginia Journal of International Law article, "'Unwilling or Unable': Toward an Normative Framework for Extra-Territorial Self-Defense." I share most of the article's views, although I am much more restrictive with regards to the role of human rights law in armed conflict. Moreover, I also think that a small-scale armed intervention, whether lawful under jus ad bellum or not, that undertake "hostilities" in the factual, pragmatic understanding of that term, is governed by the law of armed conflict (though prudential considerations will often counsel much narrower rules of engagement as a matter of policy) - or, at any rate, though it not the only plausible legal view, it is quite sufficient for a state to use as a basis for applying the law of armed conflict.  Abstract below the fold: Abstract: 

This article examines the geographical reach of international humanitarian law (law of armed conflict), particularly during armed conflicts between States and non-State organized armed groups. The issue is operationally critical, since to the extent that IHL applies, practices which are lawful during armed conflicts, such as status-based targeting, may be employed. When IHL does not apply, human rights obligations shouldered by the State govern the conduct of its military operations. The article surveys the various approaches to the the legal geography of non-international armed conflict, arguing that an interpretation by which IHL is not geographically restricted is the most supportable.