Acts of State in the Grey Zone

Abstract

Campaigning in the grey zone presents strategic challenges for contemporary militaries, including questions surrounding the role of conventional military troops, the importance of coercion, and the choice of strategic frameworks. Australia, like other nations, is adopting a minimalist deterrence model, focusing on denial and punishment tactics. While denial operations have received legal scrutiny, punishment operations, often involving external actions and potential civilian targets, present distinct legal challenges. This paper examines the legal authorities for such operations within a Commonwealth context, particularly focusing on Australia. The paper explores the application of the British common law doctrine of 'Act of State' and the external security prerogative as potential justifications for military actions, even when they may conflict with international legal norms. Despite the principle that international wrongful acts are governed by international law, the analysis contends that domestic legal authority remains paramount for dualist States like Australia.

Divided into three sections, the paper first addresses the deterrence strategies adopted by States, followed by an examination of potential domestic constitutional authorities for punishment operations, including the war prerogative and the external security prerogative. The complexity surrounding these legal doctrines is acknowledged, with attention to how they apply both internally and externally. Finally, the paper discusses the integration of international law into considerations of an Act of State, highlighting the intricate legal landscape within which grey zone operations are conducted.