Quasi-hostile acts : the limits on forcible disruption operations under international law
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Boston university international law journal, Vol. 32, issue 2, summer 2014, p. 355-409
One of the most pressing problems in contemporary international law concerns the interaction between hostilities, undertaken in armed conflict, and law enforcement. In situations where law and order collapses, states engaged in transnational law enforcement can be increasingly tempted to blur the boundaries between these paradigms by forcibly targeting objects relating to criminal activity. This Article labels such actions as "forcible disruption operations" ("FDOs") and seeks to offer a comprehensive legal framework for their assessment. As a case study, this Article builds upon a strangely overlooked 2012 operation conducted by EU Naval Forces, in which "pirate equipment" was attacked from the air in Somalia. Using this case study, the Article makes two main claims. First, it contributes to theory by identifying FDOs as complex hybrids: they forcibly target objects on the one hand (a "hostilities" approach), yet attempt to spare the persons using them on the other (a "law enforcement" approach). Thus, FDOs are best described as "quasi-hostile" acts. This Article explores the unique modalities of such operations in various contexts. Second, through its discussion of FDOs, this Article reveals a surprising difference between the hostilities and law enforcement paradigms. While international humanitarian law ("IHL") prohibits the targeting of civilian objects even if used for criminal activities, international human rights law ("IHRL") - due to its system of derogations - might permit such actions in cases of extreme necessity, provided that procedural guarantees are in place. This finding uncovers a novel distinction between IHL and IHRL by exemplifying, perhaps counter-intuitively, that the latter can be more permissive than the former.
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