Whither International Martial Law? Human Rights as Sword and Shield in Ineffectively Governed Territory

Abstract

This paper probes the bases and boundaries of IHL, HRL, sovereignty and self-defense to propose how contemporary international law could regulate responses to transnational armed attacks emanating from ineffectively governed territory. It offers and briefly outlines two concepts. The first is “transnational self-defense” by states against non-state actors, one distinct from and more permissive than the concept of self-defense that has developed between states. Specifically, it argues that the right of transnational self-defense must allow a potential victim state to counter a reasonably certain threat of an attack that will result in mass casualties when that state is also reasonably certain that the territorial state cannot or will not effectively do so. The second is somewhat of a hybrid IHL/HRL legal framework, here termed “international martial law.” The term “martial law” is not intended to evoke images of harsh military rule and perfunctory punishment, but rather of militarized law enforcement operations rendered necessary by the nature and gravity of a threat. It allows limited collective targeting, limited incommunicado investigatory detention, and a prohibition on collateral deaths of innocent civilians that are not strictly unavoidable. It shuns extraordinary courts and indefinite preventive detention. Both of these concepts represent a contextual balancing of obligations to protect and respect human rights and state sovereignty. A proper understanding of the traditional scope of customary and conventional IHL and HRL and a proper situating transnational armed attacks and responsive acts of self-defense in contemporary international law regulating the use of force not only allow for but arguably support these normative developments. Alternatively, these concepts could be based in HRL, including states’ affirmative human rights obligations and a broader understanding of permissible, non-arbitrary deprivations of life or liberty.