Where is the Zone of Combat?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Battlefield.
Combat area.
Theater of operations.
These traditional terms in military discourse and the modern English language have described wartime areas for decades – indeed centuries. In today’s conflicts, states fight against nonstate actors and terrorist groups that are unbounded by sovereign territorial boundaries and that prefer tactics aimed at civilians often far from any traditionally understood battlefield. Those facts can easily confound attempts to use these existing terms effectively.
In particular, the present conflict between the United States and al Qaeda and affiliated terrorist groups poses significant yet seemingly fundamental questions, not only about the law applicable to operations against terrorists, but also about where the conflict is taking place and where that law applies. Beyond the obvious areas of Afghanistan, Iraq, and the border areas of Pakistan, there is, at present, little agreement on where the battlefield is – i.e., where this conflict is taking place – and an equal measure of uncertainty regarding when it started and when and how it might end. (credit for photo of memorial following 2008 attack in Mumbai, India)
Many practitioners and scholars now suggest that the traditional battlefield – once populated by tank battles and infantry – has been replaced by a more complex environment, sometimes called the zone of combat. Blending armed conflict and operational counterterrorism, the zone of combat has been characterized as anywhere terrorist attacks are taking place, or perhaps even being planned and financed. Even when not conceived of as broadly, the zone of combat encompasses areas beyond the traditional battlefield and could likely include any area where military responses to terrorists and terrorist attacks take place.
The “zone of combat” may simply seem to be yet another modern descriptive term that offers a clearer representation of real life than its antecedent. But it raises important and interesting legal questions. The fact that the zone of combat is movable and changeable only complicates the nature of these questions.
When many argue – and the United States consistently asserts – that the United States in engaged in a global war against Al Qaeda and other terrorist groups, one natural question is where is the battlefield, or zone of combat, in this global struggle against terrorist groups? And how do we identify it?
I explore these questions in an article in the forthcoming volume of the Georgia Journal of International and Comparative Law, entitled “Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters of the Zone of Combat.”
These questions of where and when are critical for understanding how to apply the law to questions of targeting, detention, interrogation, direct participation in hostilities, and trials, among others. Just as relevant legal frameworks help us understand the substantive scope of the applicable law within the zone of combat, those frameworks can help illuminate its temporal and geographic scope.
Traditional conceptions of belligerency and neutrality do not effectively address the complex spatial and temporal nature of terrorist attacks and states' responses. Nor can human rights law or domestic criminal law, which are both legal regimes of general applicability, offer a useful means for defining where a state can conduct military operations against terrorist groups.
In contrast, the law of armed conflict – naturally limited and triggered by the existence of an armed conflict – provides a framework not only for when it applies, but where and for how long. By using this framework and analogizing relevant factors and considerations to the conflict with al Qaeda, we can identify factors that can help define the zone of combat.
► First, some terrorist attacks and activities fall closer to the traditional conception of hostilities as understood within the law of armed conflict. Areas where these types of attacks occur naturally have a stronger link to a battlefield. In addition, when such attacks or activities occur regularly or over a defined time period, we can more clearly define the temporal parameters of the zone of combat as well.
► Second, in declaring that it is “at war with terrorists,” a state may envision the whole world as a battlefield. But the state’s actual conduct in response to the threat posed offers a more accurate lens through which to view the battlefield. Areas where the state uses military force, particularly multiple facets of military power, on a regular or recurring basis, should fall within the zone of combat while those where the state chooses diplomatic or law enforcement measures, or relies such efforts by another state, do not demonstrate the characteristics of the battlefield. This same analysis holds true for the temporal parameters as well.
Applying this type of analysis in a simplistic manner does indeed leave room for abuse by states, which might overuse military power merely to try to squeeze otherwise non-battlefield areas within the zone of combat. While this is certainly a consideration, government response is only one factor to take into account in assessing the parameters of the zone of combat and both the nature of the international community and the great expense, both human and material, of applying military might where not necessary will likely weigh against any such abuse.
►The third factor – territory – requires the most creative application. Terrorist groups do not use or connect to territory in the same manner as either states or non-state actors seeking to gain power or independence. Conflicts against terrorist groups, as a result, do not follow the boundaries on a map or the dictates of state sovereignty or international legal niceties. But territory can be a contributing factor to a paradigm defining the zone of combat nonetheless.
Looking at territory from a new angle, we can see that terrorists use certain areas for safe havens and training camps and identify certain areas as prime targets for repeated attacks. Those territorial areas must therefore have a stronger connection to the zone of combat than others, both geographically and temporally, because the way terrorists use particular areas will naturally change over time.
Taken as a whole and considered in light of existing jurisprudence and policy considerations, these analytical tools form a first step in the critical task of identifying where and when a state can conduct operations within an armed conflict framework. Such identification is a necessary companion to the ongoing debate about whether and how a state can conduct operations within such a framework.

Read On! The gender dimensions of terrorism

(Read On! ... occasional posts on writing we're reading) In writing an article addressing human rights advocacy on gender issues for the inaugural issue of a new publication that Oxford University Press will launch in March, the Journal of Human Rights Practice, I had occasion to re-read the stellar article "Terror/Torture" by another IntLawGrrl, Professor Karima Bennoune (below left.) This article has just been designated by Oxford University Press as one of the Top Ten Global Security Law Review Articles of 2008, and will be republished in a volume of that name.
In this article, Professor Bennoune examines discourses around the terror/torture paradigm, and calls for a human rights approach to both terrorism and counter-terrorism. As Bennoune points out, human rights law requires that states take steps to protect against violent attack, and not violate human rights in the process. Human rights groups have tended to focus largely on the rights violations that have come from the excesses of counter-terrorism:

[T]hose international lawyers who position themselves primarily as opponents of torture and other state counter-terror abuses often fail to fully reflect on or engage with the exigencies of terrorism. . . . [Though] they do not seek to justify terror, their understating of the impact of terrorism is . . . destabilizing. All too often, they overlook the fact that the actual struggle to end terrorism is itself a human rights struggle . . .

Bennoune rejects the state-centric model favored by certain traditional human rights approaches and argues that we should respond to non-state actor terrorism itself as a human rights violation, explaining that "[a] human rights analysis of terrorism centers the discussion on victims and human dignity, instead of only on national security":

Terrorism should be understood as a human rights violation, something which might shock only the most old-school international human rights lawyers who still defend the notion that only states can violate human rights. Terrorist attacks, depending on the nature of a particular incident, have the potential to decimate human dignity and to violate human rights across all categories: civil, cultural, economic, political and social rights, as well as individual and group rights, women's rights, and children's rights.

As part of her exploration, Bennoune addresses the neglected gender dimensions of terrorism and the insufficient response of many states and human rights advocates to women victims of terrorist violence. To effectively address gender-based rights violations one must address conduct not only by states but also by non-state actors. Bennoune argues that these actors should be held accountable under human rights law, and that human rights groups should not perpetuate outmoded approaches that suggest only states are capable of violating human rights. To take human rights seriously, we need to recognize the gravity of the threats to human dignity from both what is called terrorism and what is called counter-terrorism.

Conference. On Friday March 6, a conference on "The Gender Dimensions of Terrorism: How Terrorism Impacts the Lives of Women" will take place at Rutgers School of Law in Newark. Keynote speakers are ACLU President Susan Herman and Professor Karima Bennoune, who is visiting this year at the University of Michigan Law School. Full panel and speaker information here.

Who Counts in Making Custom?

Last Thursday, my most recent article, The Individual and Customary International Law Formation, was featured on Opinio Juris as part of a mini-series in which Opinio Juris invited the authors in the Virginia Journal of International Law’s most recent issue to present their articles. I'll provide a short summary here.
In the article, I propose opening a space for non-state actors, specifically individuals, in the process by which customary international law (CIL) is formed.
In essence, my argument rests on what I see as two doctrinal premises. The first is a general shift in thinking about individuals as mere objects of international law – akin to rivers, cattle or real property – to a generally accepted recognition of individuals as subjects of international law. This shift, I argue, has created a deep doctrinal inconsistency due to the fact that customary law, international or otherwise, has typically been conceived of as the law that arises from its subjects. The recognition of individuals as subjects of international law has thus rightly drawn the validity and legitimacy of customary international law (CIL) into question – CIL doctrine no longer permits it to arise from all of its subjects. Rather, CIL continues to look only to states.
The second doctrinal premise is that the treaty formation process accepts and recognizes the participation of individuals in the making of treaty law – particularly in those areas in which individuals are most interested, such as human rights. Although human rights treaties may address many of the same norms as compose the CIL of human rights, there is no recognized avenue for individuals to participate in CIL formation. There is no avenue for individual participation even in the area of human rights, which is oriented toward the individual and recognizes and anticipates that states will be rights violators. And this is true despite evidence that states do not always represent the human rights aspirations and desires or beliefs of their populations (see, e.g., the recent events in Burma).
This article will be followed by my current project, in which I am making underexplored inquiries regarding the history of custom formation. Customary international law -- or rather customary law regulating trans-boundary relations -- was being formed long before our modern conception of the state, and I aim to examine this process in my next piece. My aim is to demonstrate that customary law has been and can again be formed separate from states. In the process of developing my future article, this historical issue and others will be explored in an upcoming conference that Indiana University School of Law will host on my behalf, entitled, “The Individual and Customary International Law Formation,” in April 2008. The insights provided by this historical inquiry may help us see a path forward that will maintain the vitality and legitimacy of CIL, even in a time of the de-centered state. This should have relevance even for those who maintain that such a time has not yet arrived.
For those who might be interested in the Opinio Juris post, it is still available and it is accompanied by an exchange with Jordan Paust, who provided a response to my article. (illustration courtesy of Human Rights Education Associates, an NGO with offices in Massachusetts and Amsterdam)