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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Part III Counter-terrorism In Practice, 24 Use of Lethal Force against Suspected Terrorists

David Kretzmer

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

Subject(s):
Terrorism — Armed conflict, international — Use of force, threat — Self-defence — United Nations (UN) — Right to life — Conduct of hostilities — Prisoners of war

(p. 618) 24  Use of Lethal Force against Suspected Terrorists

1.  Introduction

In the struggle against terror those responsible for counter-terrorism measures may honestly believe that it would be effective to use lethal force against suspected terrorists. They are most likely to reach this conclusion when they cannot lay their hands on the suspected terrorists since they are in the territory of another country that is either unwilling to constrain their activities, or incapable of doing so. The authorities may argue that their primary duty to protect the lives and security of their own citizens and residents does not allow them to sit back while the suspected terrorists plan terrorist attacks which may be virtually impossible, or, at the very least, highly difficult, to frustrate at a later stage.

It is not the intention in this chapter to question whether use of lethal force against suspected terrorists might indeed be effective in countering terrorism. The assumption will be that the proposal to use such force in given circumstances is based on an honest and reasonable assessment that it will indeed be effective in pursuing that goal. It is self-evident, however, that the very idea that state authorities may make a premeditated decision to kill an individual who is not at the time committing, or imminently about to commit, an act of violence raises disquiet. At first glance such an action would appear to be an extrajudicial execution that is clearly incompatible with rule of law principles. But is that always the case?

The question that is addressed in this chapter is when, if ever, it is lawful to use lethal force against suspected terrorists who are not at the time carrying out an attack or imminently about to do so. Put another way, the question is what constraints international law places on the power of states to act on the basis of the assessment that killing a suspected terrorist would be an effective counter-terrorism measure.

(p. 619) Legality in international law of the use of lethal force against suspected terrorists must be addressed on two levels:

  • •  In relation to the suspected terrorist, will use of force necessarily involve violation of his or her right to life, thus making the act unlawful in international law?

  • •  If the suspected terrorist is in the territory of another state, will use of lethal force violate the obligation to respect the territorial integrity of states?

These two questions must be addressed separately. It is conceivable that use of lethal force will involve violation both of the right to life of the suspected terrorist and of the territorial integrity of the host state; that it will not involve violation of either of these values; or that it will involve violation of one of them, but not of the other.1 The main part of this chapter addresses the first, right to life, question. However, since use of what has become known as ‘targeted killing’ is usually carried out in the territory of another state, and the rationale offered for its use is the unwillingness or incapability of the host state to constrain the suspected terrorists, it is essential to address the second, territorial integrity of states, question first.

2.  Use of Force in the Territory of Another State

2.1.  Principle of Respect for Territorial Integrity of States

Article 2 (4) United Nations (UN) Charter obliges states to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’. This principle is now regarded as part of customary international law.2 The Charter itself recognizes only two exceptions to this provision: the inherent right of a state to act in self-defence if an armed attack occurs (Article 51); and action sanctioned by the Security Council exercising its powers under Chapter VII UN Charter to maintain or restore international peace and security.

The self-defence exception could conceivably be relevant in the case under discussion. And indeed, states which have openly engaged in ‘targeted killing’ of suspected terrorists have argued that in doing so they are exercising their inherent right to self-defence.3 This argument meets a number of difficulties.

(p. 620) 2.1.1.  Self-Defence Exception

Under Article 51 UN Charter the inherent right to self-defence arises only if an armed attack occurs. The assumption of the Charter was unless such an attack actually occurs, states facing an external threat may not use force to thwart the threat but must rely on the Security Council to take action. It is now fairly widely recognized that this assumption is not always valid, and that states may use force in self-defence not only when an attack actually occurs, but when such an attack is imminent.4 However, the right to self-defence does not entitle a state to use force in order to prevent, deter, or pre-empt a non-imminent future attack.5 A distinction is drawn between an anticipatory attack to thwart an imminent attack, which may be lawful, and a pre-emptive attack to prevent a future non-imminent attack, which is never lawful.6

There is a division of opinion among experts whether an attack by non-state actors, such as members of a terrorist group, may ever be the kind of armed attack to which Article 51 UN Charter refers. In their Advisory Opinion on the Legal Consequences of Construction of the Wall, the majority of judges on the International Court of Justice took the position that only an attack by another state was the kind of armed (p. 621) attack that gives rise to the right to self-defence under Article 51.7 Notwithstanding this view, most experts hold that an attack by non-state actors, such as a terrorist group, may in certain circumstances be the kind of armed attack contemplated in Article 51.8

Even if one accepts that an attack by non-state actors could conceivably be an armed attack, one cannot conclude that every act of violence by a terrorist group will constitute such an attack. The exact parameters for regarding use of force by one state against another as an armed attack have never been clearly defined and are the subject of controversy. The International Court of Justice has taken the view that a mere ‘frontier incident’ may not amount to an armed attack,9 but this view has been criticized.10 Even more controversy has arisen over the question of whether the parameters for an attack by non-state actors are more demanding than those for an attack by a state.11 The better view would seem to be that any attack that would in its scale and effects be regarded as an armed attack were it carried out by a state would also be an armed attack if it were carried out by a terrorist group.12

Although not every individual attack by a terrorist group operating from a foreign country will necessarily meet the demands of an armed attack covered by Article 51 UN Charter, there is some support for the view that an accumulation of attacks, when taken together, could meet these demands.13 Thus, for instance, the firing by non-state actors of one single rocket into the territory of a neighbouring state might not amount to an armed attack that gives rise to the right to use force in self-defence. However, a series of such attacks may well amount to such an armed attack if, when taken together, they reach the threshold of scale and effects required for use of force to be regarded as an armed attack on a state.

(p. 622) In some cases the acts of the terrorist group may be imputed to their host state.14 However, there is little agreement on the extent of involvement in the activities of the terrorist group that is required in order for this to be the case. In the Nicaragua case, the International Court of Justice laid down a test of ‘effective control’ for state responsibility, holding that even if a state supplies arms to the group it will not necessarily be responsible for the group’s attacks on another state.15 However, if a less demanding test for state responsibility is accepted, the mere fact that the host state is unwilling to constrain the group’s activities or is incapable of doing so does not make it responsible for those activities.16 It is indeed true that a state has the obligation to prevent non-state actors from using its territory to organize or carry out violent acts against another state, but any failure to fulfil this obligation does not amount to an armed attack against the other state and so does not open the door for use of force in self-defence against that state.17 But may the attacked state defend itself by using force against the non-state actors in the territory of the host state? Although the International Court of Justice has intimated that the answer is negative,18 there is fairly wide support for the view that provided that state restricts its military response to actions against the non-state actors, rather than against the host state itself, these will not involve unlawful violation of the territorial integrity of the host state.19

Every use of force in self-defence, including use of force against suspected terrorists, must meet two conditions: necessity and proportionality.20 Necessity implies that force must not be used unless other, non-forcible, measures have been exhausted and are not effective or are unfeasible due to the nature of the attack against which the state is defending itself. In the present context this means that unless an attack by the suspected terrorists is imminent, before using force in the territory of the host state the attacked state must have demanded that the host state itself act to constrain the terrorists and given it an opportunity to do so. Proportionality implies that the response of the state that is attacked must be proportional to the need to (p. 623) defend itself.21 What this means is open to different interpretations. Some writers seem to think that the kind and scale of force used by the state must be proportionate to the force used by the terrorists in their attack on that state.22 This view does not commend itself, for it implies that the terrorists can determine the amount of force used, and that the attacked state may not be able to take action needed to prevent future attacks by the same group. The better view would seem to be that the force must not exceed the force needed to thwart the attack and to prevent the same group from continuing such attacks.23

The accepted view is that use of force on the territory of another state, without that state’s consent, can only be justified if it meets the conditions for exercise of the right to self-defence outlined above. It has been argued, however, that when the host state fails to enforce the law against terrorists acting on its territory, a state that is harmed by the actions of those terrorists may engage in ‘extra-territorial law enforcement’.24 The notion here is that this state is merely doing what the host state should have been doing and that therefore it cannot be regarded as violating international law. While the original proponent of the notion of ‘extra-territorial law enforcement’ restricts its use to cases when there has been an armed attack by non-state actors,25 others have carried the idea further, arguing for a right of a state to use force against non-state actors in the territory of another state even when the threshold of an armed attack has not been met.26 While the argument would seem to have gained support of the United States (US) and a few scholars, it does not reflect the majority view. The more accepted view is that every extra-territorial use of force without the consent of the state on whose territory the force is used must be justified under the rules of self-defence that flow from Article 51 UN Charter.27

In the light of the above discussion, it is possible to summarize the issue of interstate relations that arise when considering use of force against terrorists acting from the territory of another state as follows:

  1. (1)  A state may not use force in self-defence unless it has been subjected to an armed attack or is facing an imminent armed attack. In the absence of such an attack or consent of the host state, use of force in the territory of that state to deter or to pre-empt non-imminent future attacks is unlawful.

  2. (2)  An attack by a terrorist group acting from outside the territory of the attacked state may amount to an armed attack that gives rise to the right of the attacked (p. 624) state to use force in self-defence. While the exact parameters of such an armed attack have never been clarified, at the very least an attack by non-state actors whose scale and effects would make it an armed attack were it carried out by a state will be regarded as an armed attack.

  3. (3)  The force used in response to an armed attack must meet the demands of necessity and proportionality.

  4. (4)  If the attack by the non-state actors may be imputed to the state from whose territory they are acting, the attacked state may defend itself both against the non-state actors and the host state. If the attack may not be imputed to the host state, but that state is unwilling to constrain the non-state actors, or unable to do so, the attacked state must confine its use of force to the non-state actors and military targets connected with their activities.

  5. (5)  There is some support for the view that a state may engage in ‘extra-territorial law-enforcement’ even when the conditions for use of force in self-defence do not apply, but this view has not been generally accepted. The assumption must be that the legality of using force in the territory of another state without that state’s consent must be assessed under the principles relating to self-defence.

3.  Right to Life of Suspected Terrorists

3.1.  Introduction

The mere fact that by targeting suspected terrorists in the territory of state B, state A is not violating the prohibition of use of force against the territorial integrity of another state does not necessarily imply that the use of lethal force will not involve violation of the right to life of the targeted persons. In this section the right to life and its implications for use of lethal force against suspected terrorists is discussed.

The right to life of suspected terrorists, and more specifically, when, if at all, intentional use of lethal force against them will not be regarded as a violation of this right, raises a fundamental legal question: which regime of international law applies to the use of such force? A law enforcement, criminal justice, regime? Or an armed conflict regime?

It is in relation to the right to life, and the concomitant duties of the state, that the differences between these two regimes of law are the greatest. Under a law enforcement regime, state authorities are obliged to respect the rights to life and to due process of every individual subject to their jurisdiction. They may only employ lethal force in the most limited circumstances, most typically in the case where such force is absolutely necessary in order to protect persons from unlawful violence. Lethal force must never be the preferred option; it must be a last resort, to be employed only when other law enforcement measures, such as arrest and detention pending trial, are not available. Every use of lethal force by state authorities must be regarded as exceptional, and must be investigated to assess whether it was justified (p. 625) in the specific circumstances of the case. In an armed conflict regime, on the other hand, use of lethal force is the name of the game. Its use does not normally depend on the specific circumstances of the case, but on the status of the victim. If that victim is a combatant he is a legitimate target; if not, he will generally not be a legitimate target. Use of lethal force in a situation of armed conflict does not demand special justification, and does not have to be investigated, unless there is some evidence that it was used in contravention of the international law of armed conflict (LOAC), often referred to today as international humanitarian law (IHL).

Given this difference between the two regimes, it is not surprising that states which target suspected terrorists employ the rhetoric of ‘war on terror’ and rely on the armed conflict regime to justify their acts. On the other hand, critics of ‘targeted killings’ often employ terminology that is most appropriate in a law enforcement, criminal justice, regime, referring to use of lethal force by state authorities as ‘extrajudicial executions’. The one judicial decision that examines the legality of targeted killings rests on the assumption that the applicable legal regime is an armed conflict regime.28

In this part, the following questions are discussed:

  • •  Which of the two legal regimes applies to the targeting of suspected terrorists?

  • •  What are the norms that apply to such targeting under each of the two regimes?

3.2.  The Applicable Legal Regime

The general norms of international law that constrain use of lethal force by state authorities are those of international human rights law. The right to life is protected under Article 6 International Covenant on Civil and Political Rights 1966 (ICCPR); Article 2 European Convention on Human Rights and Fundamental Liberties 1950 (ECHR); Article 4 American Convention on Human Rights 1969 (ACHR); and Article 4 African (Banjul) Charter on Human and People’s Rights 1981 (African Charter). It is also part of customary international law, so that every state is bound to respect this right, even when it is not party to one of these conventions, or when the particular convention to which the state is a party does not apply.29 The primary obligation of states in respecting the right to life is not to deprive persons of their life arbitrarily.

The law of armed conflict only applies in specific circumstances, namely hostilities that are part of an armed conflict. In such circumstances the law of armed conflict (p. 626) becomes the lex specialis that determines whether taking a person’s life will be regarded as arbitrary or not.30 The fundamental principle of the law of armed conflict is the principle of distinction. According to this principle only persons who are combatants may be targeted. Civilians may not be targeted, unless and for such time as they take a direct part in hostilities. When does each of these regimes apply to use of force against suspected terrorists?

3.3.  The Armed Conflict Regime

During an armed conflict it is permissible to use lethal force against combatants of the enemy. It is forbidden to direct force against civilians, unless and for such time as they take direct part in hostilities.

How do suspected terrorists fit into this scheme? In order to answer this question we must discuss the following issues:

  • •  When does an armed conflict exist?

  • •  Are suspected terrorists regarded as combatants in armed conflicts?

  • •  Assuming terrorists are not combatants, may they be targeted as civilians taking a direct part in hostilities?

3.3.1.  Existence of an Armed Conflict

An armed conflict may be one of two types: an international armed conflict and a non-international armed conflict. The distinction between these types of conflicts is crucial, mainly because only in international armed conflicts is there a recognized category of combatants, who are entitled to take part in hostilities and who enjoy two privileges: immunity from prosecution for fighting according to the laws and customs of war; and prisoner-of-war status if apprehended by the enemy.

The classic type of international armed conflict is an interstate armed conflict. Such a conflict exists when there is resort to armed force in the relationship between states.31 There is no requirement that this resort to force meet a minimal intensity or scale. Once such a conflict exists, the international law of armed conflict comes into play automatically and is not dependent on a declaration of war or acceptance by the parties that this law applies.

Article 1(4) Additional Protocol I to the Geneva Conventions 1977 (AP I)32 provides that the law of international armed conflict shall also apply to conflicts in ‘which peoples are fighting against colonial domination and alien occupation and against (p. 627) racist regimes in the exercise of their right of self-determination’. This provision is not part of customary international law and does not bind states that are not parties to AP I.33 As Jelena Pejic points out in Chapter 7, there are few situations today which meet the definition in the AP I provision. In the one conflict situation that conceivably does meet the definition, the Israel-Palestine conflict, the provision is inapplicable since Israel is not a party to AP I. Application of this provision in AP I is therefore largely theoretical.

Common Article 3 Geneva Conventions 1949 applies some of the most basic humanitarian norms to armed conflicts not of an international nature occurring in the territory of a state party. A typical example of such a conflict is an armed conflict occurring in the territory of a state between the armed forces of that state and an organized armed group. A conflict between a terrorist group and the forces of a state could potentially constitute a non-international armed conflict.34 It is important, however, to stress the word ‘potentially’ since isolated terrorist attacks or even exchanges of fire between a terrorist group and state authorities do not necessarily mean that an armed conflict exists.

The criteria for categorizing a situation of conflict as a non-international armed conflict are discussed in Chapter 7 and will not be rehearsed here. Suffice it to state that the intensity and level of armed violence and degree of organization of the non-state actors must be such as to justify regarding the situation as one of ‘armed conflict’ rather than of disturbances, riots, domestic strife, criminal violence or isolated terrorist attacks.

Article 1(1) Additional Protocol II to the Geneva Conventions 1977 (AP II)35 provides that AP II shall apply to those armed conflicts ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. This sets a higher threshold than cases covered only by Common Article 3, encompassed in the demand for control over part of the territory of the state concerned and the ability to carry out sustained and concerted military operations.

Whatever the thresholds of violence and organization required for a situation to be regarded as a non-international armed conflict, one other factor must also be present: the organized armed group or groups involved in such a conflict must (p. 628) be identifiable.36 The nature of the parties determines whether a conflict is of an international or non-international character. Just as an international armed conflict is a conflict between specific states, a non-international armed conflict is between a state and an identifiable organized group of non-state actors (or between two such groups). There cannot be an armed conflict between a state and ‘terror’ or ‘terrorists’.

Both Common Article 3 and AP II refer to an armed conflict occurring ‘in the territory of a High Contracting Party’. Relying on this stipulation the argument has been made that there is no such thing as a transnational non-international armed conflict, or a conflict between a state and a group of non-state actors that transcends the territory of that state.37 This view is taken by Professors Schmitt, Dinstein, and Garraway in their draft of a Manual on the Law of Non-International Armed Conflict which defines non-international armed conflicts as ‘armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government’.38

Were this view to be accepted, it would imply that the international law of armed conflict does not apply to conflicts between states and organized armed groups of non-state actors that extend beyond the borders of a single state. This would create a serious lacuna in international law.39 Not surprisingly many experts argue that a transnational conflict may be a non-international armed conflict to which LOAC applies.40 It would seem that Nils Melzer expresses the more widely accepted view, when he writes that ‘the modern concept of non-international armed conflict (p. 629) includes all situations of sufficiently intense or protracted armed violence between identifiable and organized armed groups regardless of where they occur, as long as they are not of an interstate character’.41

Given the widely used rhetoric of a ‘war against terror’ and the impression created that this is a global war that may be fought anywhere, it is important to note that even if a conflict between a given state and a defined organized armed group meets the criteria to be regarded as a non-international armed conflict, this does not imply that the state involved may carry that conflict to the territory of every other state. Whether it may use force against members of the armed group who are in the territory of another state will depend, inter alia, on the issues regarding respect for the territorial integrity of states which were discussed in Section 2.1 above.

3.3.2.  Status of Members of Terrorist Groups

The law of armed conflict rests on the fundamental distinction between combatants and civilians. The former may be attacked as long as they are not hors de combat; the latter may not be attacked unless and for such time as they take direct part in hostilities. How do members of terrorist groups fit into this scheme? In answering this question it is essential to distinguish between international and non-international armed conflicts.

3.3.2.1.  International Armed Conflicts

The Third Geneva Convention (GC III)42 defines who is entitled to prisoner-of-war (POW) status if captured by the enemy in an international armed conflict. While ostensibly this definition is solely for the purposes of that Convention, namely entitlement to POW status, Article 50(1) AP I adopts the definition for the purposes of the principle of distinction. This leads to some anomalous results and cannot be accepted as reflective of customary law on this issue.

Under Article 4 GC III, the two important categories of combatants are members of the armed forces of a party to the conflict, and members of a militia belonging to a party to the conflict provided they fulfil four conditions:

  • •  that of being commanded by a person responsible for his or her subordinates;

  • •  that of having a fixed distinctive sign recognizable at a distance;

  • •  that of carrying arms openly;

  • •  that of conducting their operations in accordance with the laws and customs of war.

(p. 630) It shall be assumed that members of a terrorist group are not members of the armed forces of a state which is party to the conflict.43 The question is whether they may be combatants as members of a militia.

It must be recalled that an international armed conflict is an interstate conflict (conflicts between states that are parties to AP I and peoples fighting against colonial or racist regimes or against foreign occupation are not discussed here). In such conflicts, members of armed groups will only be regarded as combatants if the group belongs to one of the states involved in that conflict. The term ‘belong’ would seem to convey a formal relationship between the state and the armed group, but the International Committee of the Red Cross (ICRC) takes the view that no formal agreement is necessary, and that if an organized group is fighting alongside the armed forces of a state it will be regarded as belonging to that state.44 Thus, even if members of al Qaeda did not belong to Afghanistan when the US and its allies originally attacked that country in 2001, when, at a later stage, they were fighting alongside the Taliban forces, who were at that time the forces of the de facto Government of Afghanistan, they could have been regarded as members of a militia belonging to Afghanistan.

Belonging to a state involved in an armed conflict would appear to be a necessary, but not sufficient, condition in order for members of an organized armed group to be regarded as combatants. Seemingly, on the basis of the wording of Article 1(4) GC III, the group would also have to fulfil the four conditions mentioned. Members of a terrorist group would certainly not fulfil most of these conditions.45 First and foremost, acts of terror (namely, intentional killing of civilians in order to terrorize the population) are totally incompatible with the laws and customs of war that prohibit making civilians the object of an attack. Second, members of terrorist groups are not in the habit of wearing distinctive signs recognizable from a distance, (p. 631) nor of carrying their arms openly. It would therefore seem that terrorists could never be regarded as combatants in an international armed conflict.

As far as the two privileges of combatants—immunity from prosecuting for fighting, and POW status—are concerned, the above conclusion would seem impeccable. The very object of including these conditions in Article 1(4) was to limit the privileges of combatants to members of groups who fulfil these conditions. However, when it comes to the principle of distinction, the conclusion that members of armed groups belonging to a party may not be attacked if they do not fulfil these conditions is highly problematical. For it leads to the paradoxical conclusion that if members of the group comply with these conditions, they are vulnerable to attack by the enemy, but if they do not, they are protected from such attack. It is unacceptable that members of groups that abide by the laws and customs of war will be more vulnerable to attack than members of groups which ignore them.46

In order to overcome this apparent paradox, the ICRC has suggested that for the purposes of distinction members of armed groups that belong to a state involved in an international armed conflict must be regarded as combatants.47 While the ICRC has pointedly refrained from using the term ‘unprivileged belligerent’ or ‘unlawful combatant’, in essence the ineluctable conclusion of its approach is that members of armed groups which belong to a state, but do not meet the four conditions laid out in Article 1(4), are in fact ‘unprivileged combatants’. In order to avoid use of this controversial term such persons may be called ‘de facto combatants’.

In summary: in an international armed conflict members of a terrorist group which fights alongside the armed forces of one of the states involved in that conflict shall, for the purposes of the principle of distinction, be regarded as combatants, who may be attacked at any time. Members of an armed group that does not belong to one of the states, in the wide sense mentioned above, must be regarded as civilians who may only be attacked while taking direct part in hostilities, unless the group to which they belong is involved in a separate non-international armed conflict with one of the states that is also a party to the international armed conflict. In this latter case, there may be both international and non-international armed conflicts taking place in the same territory. The position of members of the terrorist group will be determined by the rules and principles governing non-international armed conflicts that are examined in the next section.

3.3.2.2.  Non-international Armed Conflicts

The status of combatants is restricted to international armed conflicts. States, which make international law, were not prepared to accord such status to persons who participate in the fighting in non-international armed conflicts, since this would have granted them both (p. 632) immunity from prosecution for fighting against the authorities of the state, and POW status if apprehended. Hence international conventions dealing with non-international armed conflicts do not mention the notion of combatants. This has led to some disagreement amongst scholars. Some scholars hold that there are no combatants in non-international armed conflicts; only civilians, some of whom take part in hostilities and some of whom do not.48 Those who take direct part in hostilities may be attacked for such time as they are taking such part; those who do not take part in hostilities may never be the object of an attack. The present writer believes that this view fails to reflect a proper understanding of armed conflict, state practice, and a careful reading of AP II. It is not surprising, therefore, that it is a view that has been rejected by the ICRC and most experts in the field.

While AP II, which regulates certain types of non-international armed conflicts, does not refer to combatants, it does refer to civilians. So do some other conventions that apply to non-international armed conflict.49 Referring to civilians, rather than individuals, only makes sense in a regime in which there are also ‘non-civilians’ or ‘combatants’. By its very nature an armed conflict involves hostilities between organized groups of fighters. There cannot be an armed conflict in which there are combatants only on one side (the state).

While not adopting the terminology of ‘combatants’, which is reserved for international armed conflicts, the ICRC has accepted the view that members of armed groups participating in non-international armed conflicts are not merely civilians. The official ICRC commentary on AP II takes the position that all members of armed groups may be attacked at any time.50 In the recent Interpretive Guidance on Direct Participation in Hostilities, the ICRC adopts the approach that organized armed groups are the armed forces of a non-state party to the conflict.51

Since organized armed groups are the armed forces of non-state parties in non-international armed conflicts, it would seem that all members of such groups should be regarded as fighters, combatants (albeit unprivileged), or non-civilians. And indeed this would seem to be the approach taken in the ICRC Commentary (p. 633) on AP II. It is also the approach taken by some military lawyers.52 However, concerned that mere membership in such groups was far too wide a criterion, and would potentially include many individuals who may have a political, rather than a military role, or may not be involved in hostilities, in its Interpretive Guidance the ICRC takes the position that only individuals ‘whose continuous function it is to take a direct part in hostilities (‘continuous combat function’) may be regarded as non-civilians who are open to attack even when not taking part in hostilities.’53 Hence, in non-international armed conflicts the ICRC approach distinguishes between persons who fulfil a continuous combat function on behalf of a non-state party and other persons who only take a sporadic part or no part at all in the hostilities. For the purposes of the principle of distinction—namely, vulnerability to attack—the former may be treated as combatants; the latter must be treated as civilians.

The ICRC’s view in the Interpretive Guidance that vulnerability to attack at all times is restricted only to those members of armed groups who fulfil a continuous combat function has stirred controversy.54 Some commentators, especially those with a military background, argue that all members of the military branch of organized armed groups may be targeted until such time as they make a positive move, clear to the other party, of removing themselves from the hostilities.55

Despite the criticism levelled at the ICRC approach, it seems to the present writer that it serves to clarify the most important point of controversy surrounding the legality of targeting suspected terrorists in the case of a non-international armed conflict. If the continuous function of the suspected terrorists is to take a direct part in hostilities they are not merely civilians, but members of the armed forces of a party to the conflict who may be attacked at any time.

3.3.2.3.  Taking a Direct Part in Hostilities

If suspected terrorists are not regarded as combatants in an international armed conflict, nor members of an organized armed group who fulfil a continuous combat function in a non-international armed conflict, they have the status of civilians. There is no other recognized status of persons who have a nexus to an armed conflict. Mention is often made both in professional and popular literature of ‘unlawful combatants’ or ‘unprivileged belligerents’, seemingly a third category of persons, who are neither combatants nor civilians. However, this term is not mentioned in international conventions and does not denote a special status of persons involved in armed conflict. Rather it refers to those members of organized armed groups who in fact take part in (p. 634) hostilities in international armed conflicts although they do not enjoy the privileges of combatants.56 All persons who are neither privileged combatants, nor de facto combatants, in international or non-international armed conflicts, are civilians.

While the vulnerability to attack of combatants (including members of organized armed groups who fulfil a continuous combat function) is based on status, the vulnerability of civilians to attack is action-based. Civilians may not be the object of an attack unless and for such time as they take a direct part in hostilities. The crucial questions therefore become what activities constitute direct participation in hostilities and what the boundaries are of the time-frame of such participation. Both these questions have been the subject of uncertainty and controversy. The object of the Interpretive Guidance published in 2009 by the ICRC was to remove some of this uncertainty.57

The Interpretive Guidance takes the view that direct participation always involves ‘specific hostile acts carried out by individuals as part of the conduct of hostilities between the parties to an armed conflict’.58 For an act to constitute direct participation three cumulative conditions must be met: a threshold of the harm likely to result from the act; a direct causal link between the act and the expected harm; and a nexus to the belligerency between the parties to the conflict.59

The threshold of harm implies that the act must either cause or be likely to cause ‘harm of a specifically military nature or by inflicting death, injury, or destruction on persons or objects protected against direct attack’.60 In the case of a terrorist group an attack on civilians of the state which is a party to the conflict clearly meets this criterion, whether the attack succeeds in killing or wounding people or not.

More controversial than the threshold of harm is the demand for a direct causal link between the act and expected harm. This condition is designed to distinguish between direct participation in hostilities, on the one hand, and indirect participation by contribution to the general war effort, on the other. The ICRC maintains that only activities that are connected to a specific act that is likely to cause harm can be considered direct participation. Acts that are part of general capacity-building are not so considered. Excluded, under this view, are design, production, and shipment of weapons and military equipment, as well as financing activities of a terrorist group. Applying the demand for a direct causal link between the act and the likely harm, (p. 635) the ICRC maintains that provision of arms or training of members of an armed group would generally not be regarded as direct participation in hostilities, although providing the arms or training members of the group for a specific planned attack could amount to such participation.

In many cases of collective action a large number of individuals may contribute to the action without any direct causal link between each specific act and the likely harm. In order to cater to such cases, the ICRC interprets the standard of direct causation ‘to include conduct that causes harm only in conjunction with other acts. More precisely, where a specific act does not on its own directly cause the required threshold of harm, the requirement of direct causation would still be fulfilled where the act constitutes an integral part of a concrete and coordinated tactical operation that directly causes such harm.’61

The distinction between contribution to a specific act and participation in activities that are essential parts of the terrorist chain has been subject to harsh criticism.62 And indeed when it comes to terrorist groups this distinction could be highly problematical. It implies that a person who lays or detonates bombs may be targeted, but the expert who makes the bombs may not be attacked unless he or she provides the bombs for a specific designated attack.63 Persons who are responsible for collecting general intelligence are not taking direct part in hostilities; people providing the intelligence for a specific attack are taking such part.

What is the position of leaders of the terrorist group who do not actually take part in attacks but provide spiritual backing for those who do? And of persons who are involved in planning the hostile acts of the group? In the PCATI case the Supreme Court of Israel held that:

… the ‘direct’ character of the part taken should not be narrowed merely to the person committing the physical act of attack. Those who have sent him, as well, take ‘a direct part’. The same goes for the person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking an indirect part in the hostilities.64

To the extent that the planning mentioned here refers to a specific action, the Court’s view would seem to be consistent with the ICRC distinction between (p. 636) specific hostile acts and the general war effort. It is not clear, however, whether the fine distinction between general planning of strategy and planning of specific acts is workable in practice. When it comes to terrorist groups it may imply that the ‘big fish’ are immune from attack, while people lower down in the pecking order are legitimate targets.

The fact that an armed conflict is going on between state authorities and an organized armed group does not imply that all acts of violence against the armed forces of the state or against its citizens have a nexus to that conflict. Thus, for example, if an organized group of criminals takes advantage of the conflict to steal weapons from an army base and in doing so shoots the guard, its actions will be criminal, but will not involve participation in the hostilities. The need to distinguish between such acts and direct participation in hostilities is encompassed in the final condition for an act to be regarded as direct participation in hostilities: the nexus between the act and the belligerency between parties to the armed conflict. As described in the Interpretive Guidance, the ‘act must be specifically designed to directly cause the required threshold of harm in support of a party to an armed conflict and to the detriment of another’.65

3.3.2.4.  The Time-Frame of Vulnerability to Attack

As seen above, direct participation in hostilities may be relevant both in determining whether a person is a fighter (or de facto combatant) in a non-international armed conflict, or a civilian who loses his or her immunity from attack. It is important to appreciate the difference between the two. A member of an organized armed group, whose continuous function is to take a direct part in hostilities, may be attacked at any time. A civilian who sporadically takes a direct part in hostilities may only be attacked ‘for such time’ as he or she is doing so.66 What this implies has also been a bone of contention.

The ICRC’s approach is that direct participation must always involve a specific act. It accepts, however, that such participation includes not only the immediate execution stage of the act, that meets the three criteria mentioned above, but also ‘measures preparatory to the execution of such an act, as well as the deployment to and return from the location of its execution, where they constitute an integral part of such a specific act or operation’.67 However, once the act has been completed and the person has returned from the location of its execution, he or she is no longer taking a direct part in hostilities and may not be attacked. Thus, civilians enjoy protection through what has been termed a ‘revolving door’.68 They are subject to attack when they go out of the door to take a direct part in hostilities, (p. 637) but regain their immunity from attack when they go back through the door into civilian life. It must be recalled, however, that this ‘revolving door’ only applies to civilians who take sporadic part in hostilities. Those who have a continuous combat function do not regain their civilian immunity from attack after they have completed committing an act of direct participation. They regain such protection only when they cease to be members of the armed group who fulfil a continuous combat function.69

3.3.2.5.  Limitations on Further Limitations on Use of Lethal Force

The assumption of the above discussion has been that if a suspected terrorist is a de facto combatant in an international armed conflict, a member of an armed group who has a continuous combat function in a non-international armed conflict, or is a civilian taking a direct part in hostilities, it is always lawful to use lethal force against him or her. However, even this statement must be subject to some qualifications.

In the Interpretive Guidance the ICRC argues that every use of force in an armed conflict is subject to the requirement of military necessity and humanity.70 Like many other parts of the Interpretive Guidance this point has been subject to harsh criticism.71 This means that the vulnerability to attack of persons who belong to the categories above is a necessary, but not sufficient, requirement for use of lethal force against them. In each case, lethal force should be used only if there is a military necessity to do so. In the present context the implications are that even in an armed conflict situation lethal force may not be used against suspected terrorists when they could be captured without risk to the forces involved or others in the area.72

In every use of force against a legitimate military target consideration must be given to the foreseeable collateral damage to civilians and civilian objects. The principle of proportionality makes an attack on a legitimate target unlawful if the expected damage to civilians or civilian objects is excessive in relation to the anticipated direct military advantage from the attack. While it is impossible to quantify either the expected damage or anticipated direct military advantage, serious consideration has to be given to the likelihood that when targeting a suspected terrorist civilians will be hurt or killed too.73 There would have to be an extremely strong case showing the military advantage of attacking a specific suspected terrorist when it is foreseeable that civilians might be harmed in the attack.

(p. 638) In the PCATI case the Supreme Court of Israel laid down a further demand for cases when suspected terrorists are targeted as civilians taking a direct part in hostilities.74 The Court held that in every such case there must be an investigation after the event to make sure that there was indeed strong evidence of direct participation and that the rules regarding use of force against persons taking a direct part were respected.

3.3.2.6.  Summary of Armed Conflict Regime

Resort to the armed conflict regime to justify use of lethal force against suspected terrorists does not lie in the discretion of the state. Application of this regime is dependent on the existence of an ongoing armed conflict and the vulnerability to attack of the suspected terrorists either as privileged or de facto combatants, members of armed groups who fulfil a continuous combat function in a non-international armed conflict, or civilians who at the time are taking a direct part in hostilities. An armed conflict can only exist with a defined and organized entity—either a state or an organized armed group. There cannot be an armed conflict with ‘terror’ or ‘terrorists’.

While an international armed conflict exists whenever there is resort to use of armed force in the relations between states, a non-international armed conflict between a state and an organized armed group exists only if the scope and level of violence and the degree of organization justify regarding the situation as one of armed conflict rather than criminal activity, riots, or violent disturbances. The border between these situations is indeterminate, making it difficult in borderline cases to reach a conclusive decision of whether the regime is one of armed conflict or law enforcement.

In international armed conflicts suspected terrorists will be regarded as combatants if they are members of an armed group that belongs (in the wide sense) to one of the states involved in that conflict. Otherwise they must be treated as civilians, who may only be targeted while directly participating in hostilities.

In non-international armed conflicts members of organized armed groups who fulfil a continuous combat function will be regarded as de facto combatants who may be targeted at any time. Persons who do not fulfil such a function are civilians, who may only be targeted while taking direct part in hostilities.

The ICRC Interpretive Guidance has attempted to clarify the meaning of direct participation in hostilities. According to the Guidance, only specific acts that have a nexus to the armed conflict, and which have a direct causal link to expected harm to one of the parties’ military or civilians, will be regarded as direct participation in hostilities. Contribution to the general war effort, such as financing, supplying of arms, and propaganda, are not regarded as direct participation. This distinction may be particularly hard to maintain when applied to terrorist organizations.

(p. 639) It is possible that there may be two conflicts, one international and the other non-international, taking place in the same territory at the same time. The status of the members of organized armed groups will depend on whether they are participating in the international or non-international armed conflict.

Even when a person belongs to a category of persons who may be targeted in an armed conflict, lethal force should not be used unless there is a military necessity to do so. The principle of proportionality regarding expected harm to civilians must be respected. When civilians are targeted for taking direct part in hostilities an independent investigation should be held after the event to ascertain whether the rules regarding targeting of such persons have been respected.

3.4.  Law Enforcement Regime

The right to life protected under human rights conventions and customary international law is not an absolute right. In some, highly restricted, conditions, intentional taking of a life by state authorities might not involve violation of the right to life. These conditions are the exception. The fundamental principle is that the state must respect and protect the life of all individuals who are subject to its jurisdiction.

The questions that must be addressed in this section relate to two issues:

  • •  Can the premeditated decision to use lethal force against a suspected terrorist who is in the territory of the state ever be regarded as an exception to the duty of the state to respect the life of all individuals?

  • •  Do the international human rights obligations of a state extend to actions taken outside its own territory? Assuming that the suspected terrorist is in the territory of state B, and that that state is either unwilling to take action to restrain his or her activities, or incapable of doing so, do the human rights obligations of state A apply to its actions in the territory of state B? In other words, do the human rights obligations of a state apply extra-territorially?

3.4.1.  Use of Lethal Force as an Exception to the Right to Life

The ICCPR, ACHR, African Charter, and the ECHR all protect the right to life. However, there is a significant difference in the way they approach the scope of protection this right enjoys. The first three conventions state that everyone shall be protected against arbitrary deprivation of their life, leaving open the question of when deprivation of life will be regarded as arbitrary. The ECHR prohibits all intentional deprivation of life ‘save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’.75 It provides, (p. 640) however, that deprivation of life shall not be regarded as violation of the right to life when the use of force was no more than was absolutely necessary in three conceivable situations. The relevant situation in the present context is ‘defence of any person against unlawful violence’.76 Could a state ever make the argument that since all terrorist acts involve unlawful violence, use of lethal force against suspected terrorists is absolutely necessary in order to protect potential victims against such violence?

The duty to respect life must be read in conjunction with another fundamental individual right: the right to due process. Even in the case where the ECHR expressly allows intentional deprivation of life—namely the death penalty—this must be on the basis of a sentence passed by a court after the accused has been convicted of a crime for which this penalty is provided by law.

Could premeditated killing of a suspected terrorist ever be regarded as absolutely necessary to defend others against unlawful violence? When viewed in the wide context of the duty to respect due process the answer would appear to be negative. For use of lethal force can only be regarded as absolutely necessary when no other means of defending others are available. The archetypical case is when the unlawful violence is imminent, ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’.77 Due to the imminence of the unlawful violence, resort to due process measures, such as apprehension and arrest, would give the terrorist time to carry out the attack. Hence use of force, and possibly lethal force, might become absolutely necessary to defend other persons against unlawful violence. The generally accepted view is that in the absence of an imminent threat intentional use of lethal force could never be regarded as absolutely necessary.78

The same conclusion is reached if the matter is approached from a slightly different angle. Unlike the right to be free from torture, which is absolute and knows no limitations, the right to life is not absolute: it is the right not to be arbitrarily deprived of one’s life. Seemingly this presents a paradox: the right to be free from torture is stronger than the right to life. The paradox disappears when one takes into account that torture is by its very nature a premeditated act, committed to achieve (p. 641) a certain goal.79 It can never be an instantaneous, non-planned, reaction to an unexpected situation that demands immediate action to protect life. The right to life is not absolute because the law has to cater for unexpected situations, in which use of force, including lethal force, may become the only available means to protect persons from unlawful violence, to prevent the escape of a dangerous criminal, or to quell riots or violent disturbances.

In none of these situations can the lethal force be absolutely necessary if it is planned in advance, or premeditated. This was the rationale behind the decision of the European Court of Human Rights (ECtHR) in the famous McCann case.80 In that case the British authorities had intelligence information that three IRA members would be coming to Gibraltar to carry out a terrorist attack. The authorities allowed the three individuals to enter Gibraltar. Law enforcement officials followed and subsequently shot and killed each of the three individuals when they thought, wrongly it later transpired, that the suspects were about to detonate a bomb. The ECtHR held that as the action of the law enforcement officers was based on a reasonable assessment that the threat of violence was imminent it did not involve violation of the right to life. Nevertheless the United Kingdom (UK) was liable for violation of the right to life of the deceased since in planning the action it had not left room for any option other than the resort to use of lethal force by the officers.

The conclusion would seem to be that outside the framework of an armed conflict the pre-planned targeted killing of an individual could never be lawful. As explained by Philip Alston, UN Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, ‘it is never permissible for killing to be the sole objective of an operation’.81 When killing of an individual is premeditated, or regarded as the only possible outcome of an operation to frustrate a future terrorist attack or to ‘neutralize’ a suspected terrorist, killing the suspected terrorist will amount to an extrajudicial execution.

It must be emphasized that the conclusion is not that lethal force may never be employed against suspected terrorists. In certain concrete circumstances, such as the case when the suspected terrorist is about to detonate a bomb, use of such force may be absolutely necessary. However, seemingly it is not lawful to plan in advance to kill a particular individual because he or she is regarded as a dangerous terrorist or is planning future attacks. Under this conventional approach, targeted killings can never be justified under the law enforcement model.

(p. 642) The neat distinction between use of lethal force in reaction to an imminent danger and premeditated use of such force to pre-empt a future danger rests on the assumption that there may be no way other than use of lethal force to frustrate an imminent attack, while there is always time to plan ways to prevent realization of a future attack that do not necessarily involve use of lethal force. As long as the person who is suspected of planning use of force is in the territory under the jurisdiction and control of the law enforcement authorities of the threatened state, this distinction holds true. As an armed conflict situation is not the focus here, in the absence of an imminent threat normal law enforcement measures, which involve apprehending and arresting the suspected terrorists and subjecting them to the criminal process, must be planned and employed, unless an imminent threat of severe violence arises during the execution stage.

But what is the legal position when the suspected terrorist is not within territory subject to the control of the law enforcement authorities? Law enforcement measures will only be possible in such a situation if the state, or de facto government of the territory from which the terrorists are acting, is prepared to cooperate by arresting the suspected terrorists and either putting them on trial or extraditing them to the victim state. Such measures will not be possible if that state or de facto government is unwilling to cooperate, or incapable of enforcing the law against the suspected terrorists. Assume that in such a situation the law enforcement authorities in the victim state have credible intelligence information from more than one source that terrorists are planning an attack in its territory and that it is highly unlikely that they will receive a warning when the attack is imminent. Hence, once the attack becomes imminent it will be virtually impossible to frustrate it. May they then use lethal force against the suspected terrorists before the attack becomes imminent?

The answer to this question depends on clarification of two points: whether international human rights law applies extra-territorially; and, assuming a positive answer to this question, whether in such a situation the demand of imminency may be relaxed in favour of an alternative test for the absolute necessity of lethal force.

3.4.2.  Extra-Territorial Application of Human Rights Conventions

The scope of application of an international convention is first and foremost a function of the relevant provisions in that convention. There is some difference on this issue between the four conventions that protect the right to life. The ICCPR places the obligation on each State Party to respect and ensure the rights of all individuals ‘within its territory and subject to its jurisdiction’. The duty of States Parties to the ECHR is to secure the rights therein to everyone within their jurisdiction. Under the ACHR States Parties are obliged ‘to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms’. The African Charter requires States Parties to respect the rights therein and to adopt legislative or other measure to give (p. 643) them effect. No express attempt is made to restrict this obligation towards persons in the territory of the state or subject to its jurisdiction.

The meaning of the application provisions in these conventions has proved contentious. Despite the word ‘and’ in the ICCPR provision the Human Rights Committee has opined that states must respect the rights both of individuals in their territory and individuals subject to their jurisdiction.82 It has given a wide interpretation to the term ‘jurisdiction’ so as to imply that to the extent that a state has control over an individual that individual is subject to the state’s jurisdiction. For our purposes this means that if a state has the capacity to take a person’s life, no matter where that person is, that individual is within the jurisdiction of that state, at least as regards the state’s duty to respect his or her right to life. If its agents intentionally kill the person when he or she is in the territory of another state it will be liable for violation of his or her right to life.

A number of states, foremost amongst which is the US, have taken issue with this position. Relying both on the wording of the Covenant and the travaux préparatoires, the US argues that only when an individual is both in the territory of a state and subject to its jurisdiction will that state have Covenant obligations towards him or her. It rejects the extra-territorial application of the Covenant.83 Israel has consistently resisted the argument that it is bound by the Covenant in its actions in the Occupied Palestinian Territories. Its position has been rejected both by the Human Rights Committee and the International Court of Justice.84

The ECHR does not require that the individual whose rights are violated by the state be in that state’s territory, but only that he or she be within its jurisdiction. The ECtHR’s jurisprudence on the meaning of the term ‘jurisdiction’ is confusing. The Court has ruled that persons under the effective control of the agents of a state operating outside its sovereign territory are subject to that state’s jurisdiction. Consequently persons in occupied territory are within the jurisdiction of the occupying power.85 So are people being held in detention by that state.86 However, the Court has refused to accept the wide view of the Human Rights Committee, according to which if a state is capable of intentionally killing a person, for the purposes of the right to respect that person’s life, he or she is within the jurisdiction (p. 644) of that state.87 The Court once also intimated that whether the ECHR applies to the actions of a State Party in the territory of another state may depend on whether the latter state is also party to the Convention,88 but later had second thoughts about this highly dubious idea.89 Adopting an approach close to that of the Human Rights Committee, the Court said ‘that Article 1 of the Convention could not be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory’.90

The Al-Skeini case dealt with deaths caused by British forces in Iraq and the preliminary question was whether the ECHR applied to actions of the UK in Iraq. The House of Lords adopted the narrow view of the term ‘within its jurisdiction’ which requires effective control over the location in which the individual whose rights are threatened happens to be. Accordingly, it held that in parts of Iraq that were at the time occupied by UK forces, only persons being detained by the British forces were within UK jurisdiction, while persons killed by British forces in the course of military actions were not within that jurisdiction.91

On the basis of this brief summary the situation may now be summed up regarding the application of human rights conventions to use by a state party of lethal force against a person in the territory of another state. The jurisprudence of the Human Rights Committee on this issue has been clear and consistent. The very ability of state A to target an individual implies that for the purposes of its duty to respect that individual’s right to life he or she is subject to the jurisdiction of state A. Hence, by intentionally killing that individual, state A might be liable for violation of its Covenant obligations. Some States Parties to the ICCPR have refused to accept this view.

When it comes to the ECHR the answer is less clear. One could well argue that unless the forces of state A exert some form of effective control over the area in which the individual is targeted he or she would not be regarded as being within (p. 645) its jurisdiction. However, there is also support for the view that the ECHR should not be interpreted so as to allow state A to use force against individuals outside its territory that would be unlawful if used in its own territory.

Even if a particular convention does not apply to the actions of a state party outside its own territory, that state will always be bound by the rules of customary international law. It is widely acknowledged today that the right to life is protected under customary international law, and that the duty of states not arbitrarily to deprive human beings of their life follows their agents wherever they may choose to act.

In summary: while there remains some doubt about the application of specific human rights conventions to extra-territorial action taken by states parties, the growing tendency would seem to be that states may not do things abroad that would be unlawful at home. Furthermore, even if a state would not be liable for violation of its treaty obligations when it targeted a person who was not in its territory, that targeting could involve violation of the customary law rule against arbitrary deprivation of life.

There are still some states, foremost amongst which is the US, which reject the idea that a state’s international human rights obligations have extra-territorial application.92

3.4.3.  Absolute Necessity and Extra-Territorial Action

If the assumption here is that a state is bound by its international human rights obligations to respect the lives of individuals wherever they may be, the same norm that applies to use of lethal force in its own territory will apply to use of lethal force abroad. Under the ICCPR (and customary international law) the state is prohibited from arbitrary deprivation of life; under the ECHR the state is prohibited from intentionally taking the life of a person, unless use of lethal force is absolutely necessary in defence of persons against unlawful violence. Those norms apply whether agents of the state are acting in the territory of the state or abroad. This does not mean, however, that the fact that the suspected terrorist is outside the formal jurisdiction of the state and not subject to its normal law enforcement procedures may not influence the way the norm is interpreted in the concrete circumstances. The terms ‘arbitrary deprivation of life’ and ‘absolutely necessary’ are indeterminate and need to be interpreted in concrete circumstances.

It is evident that the conventional view is that premeditated use of lethal force can never be non-arbitrary or absolutely necessary. Nils Melzer summarizes the conventional view in the following way: ‘outside the conduct of hostilities, the extra-custodial killing of an individual cannot lawfully be the actual purpose, but (p. 646) must remain the undesired and inevitable consequence, of an operation absolutely necessary to achieve a different, legitimate aim’.93

The hidden assumption of this view is that outside the hostilities of an armed conflict, unless the threat to life of others is imminent, there will always be other means to frustrate the threat that have to be considered and preferred to use of lethal force. Only when it transpires in real time that use of these other means is not feasible, and that unless immediate action is taken the threat will be realized, does use of lethal force become absolutely necessary.

The narrow view has serious implications for states that are faced with terrorist acts carried out by a group which operates out of another country.94 It has been seen above that the conditions for existence of an armed conflict between the state and an organized group of non-state actors are quite demanding and are unlikely to pertain in most cases of states faced with transnational terror attacks. Yet, unless there is an ongoing armed conflict between the state and the armed group, the state may not be able to take action its authorities regard as needed to prevent attacks taking place in the future. The idea that the state has to sit back and wait until another attack is imminent before acting to prevent it is unlikely to appeal to those who face the responsibility of protecting their citizens against terror. It is hardly surprising, therefore, that states that are actually faced with terror attacks emanating out of the territory of another state have refused to accept the conventional view.95 A number of legal arguments have been advanced in order to escape the conventional view.

Imminency is a relative term. Does it refer only to an attack that is about to take place the moment before lethal force is used to frustrate it? One of the arguments has been that when the suspected terrorist is not in the territory of the victim state, the concept of imminency must be expanded so as to allow for attacking members of a group who have the capacity and intent to mount an attack in the future ‘even if there is not specific evidence of where such an attack will take place or of the precise nature of the attack’.96

Another related argument relies on the immediacy of the need to use force, rather than the imminency of the violence that the force is designed to frustrate. The argument is that in counter-terrorism strategy windows of opportunity may be opened to attack members of terrorist groups before they launch their next attack. Since it is seldom, if ever, possible to know whether another such window will be opened before the next terrorist attack, the authorities must act on the assumption (p. 647) that this is the last window and use force to prevent attacks which they probably will not be able to prevent at a later stage.97

Finally, the US Administration and some American scholars argue that the right to self-defence is wider than the right to respond to an armed attack. Besides the right to use force when an attack has occurred, or is about to occur, it includes the right to use force against a continuing threat.98 The argument is that ‘a state generally may target those reasonably believed to represent a violent threat to it’.99 But on what basis may such ‘reasonable belief’ be reached? Professor Michael Schmitt, one of the leading proponents of this view, mentions four factors that are relevant in making this decision: the past practices of the terrorist group; whether the group has articulated goals which suggest a long-term conflict with the target state; whether contemporary events have exacerbated or relaxed tensions; and whether intelligence information shows activities are underway that which suggest an operation is being planned.100

There is little doubt that when it comes to practice of states that are actually faced with terror orchestrated by groups that operate out of countries that are either unwilling to constrain their activities, or unable to do so, those states act on the basis of their perception that preventing further terrorists attacks demands that they mount preventive attacks against members of those groups even when they have no information that an attack by the persons targeted is imminent. There is little or no transparency in their actions and it impossible to know to what extent they carefully consider the factors mentioned by Schmitt, or whether they weigh other paths of action which do not involve lethal force. Fundamentally, when it comes to targeting, they employ an armed conflict model in which the suspected terrorists are regarded as unprivileged combatants even when it highly doubtful whether there is an ongoing armed conflict with the group to which the suspected terrorists belong.

While this practice has been severely criticized by human rights activists, UN Rapporteurs, and many academic scholars, it has not always been clearly condemned by international human rights bodies. In 2003 the Human Rights Committee considered the report of the State of Israel, which had acknowledged use of ‘targeted killings’ of Palestinian members of organizations that employ terror. Representatives of Israel claimed that this measure was only employed when the targeted individuals were in parts of the Occupied Territories over which Israeli authorities had no effective control, in the sense that any attempt to enter the area in order to arrest the individual concerned would have met with violent opposition (p. 648) and would almost certainly have resulted in loss of life. The Human Rights Committee had this to say about the Israeli practice:

The Committee is concerned by what the State party calls ‘targeted killings’ of those identified by the State party as suspected terrorists in the Occupied Territories. This practice would appear to be used at least in part as a deterrent or punishment, thus raising issues under article 6. While noting the delegation’s observations about respect for the principle of proportionality in any response to terrorist activities against civilians and its affirmation that only persons taking direct part in hostilities have been targeted, the Committee remains concerned about the nature and extent of the responses by the Israeli Defence Force (IDF) to Palestinian terrorist attacks.

The State party should ensure that the utmost consideration is given to the principle of proportionality in all its responses to terrorist threats and activities. State policy in this respect should be spelled out clearly in guidelines to regional military commanders, and complaints about disproportionate use of force should be investigated promptly by an independent body. Before resorting to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted.101

From the first part of this observation, it would seem that the Committee was of the opinion that targeted killings only raise a right to life issue when used as a deterrent or punishment, but not, one would assume, when used to prevent future attacks by a group which has displayed its intention and capacity to mount such attacks. However, in the second part the Committee mentions use of deadly force against ‘a person suspected of being in the process of committing acts of terror’, thus intimating that force may only be used in face of an imminent attack.102

Seven years later, when dealing with the third periodic report of Israel, submitted some time after its Supreme Court had ruled on the legality of targeted killings,103 the Committee adopted radically different terminology, demanding that the state end its ‘practice of extrajudicial executions of individuals suspected of involvement in terrorist activities’. It added that the ‘[t]he State party should exhaust all measures (p. 649) to arrest and detain a person suspected of involvement in terrorist activities before resorting to the use of deadly force’.104 The Committee offered no explanation of why the Israeli practice had now become one of ‘extrajudicial executions’, nor how the authorities were supposed to arrest and detain persons who are in territory that is not under the effective control of Israeli forces, and when any attempt to enter the territory to arrest persons is going to be resisted with armed force.

The difference between the concluding observations of the Committee in the years 2003 and 2010 may well reflect a change in the perception about the appropriate legal regime by which to assess the practice. While the Human Rights Committee’s mandate is solely to monitor compliance of states with their human rights obligations under the ICCPR, when judging whether a state has complied with its duties to respect the right to life, whether or not an armed conflict is taking place will necessarily affect the issue if intentional use of lethal force is arbitrary or not. It would seem that the terminology used by the Committee in its 2003 Concluding Observations reflected recognition that there was indeed an armed conflict between the State of Israel and organized armed Palestinian groups. Use of the term ‘extrajudicial executions’ reflects a rejection of this legal regime and a view that any intentional use of lethal force by state agents that is not used to thwart an imminent danger of unlawful violence amounts to an extrajudicial execution.

4.  Concluding Comments: Lethal Force and the Rule of Law

Terrorism is marked by disregard for fundamental moral and legal values. It aims to unsettle societies and cause them to react in ways that are inconsistent with those values. The challenge for societies faced with terror and threats of terror is greatest when it comes to the very value most threatened by terror: the right to life. If the state itself is not to deteriorate to the level of the terrorists, it must make sure that all its counter-terrorist actions are compatible with rule of law principles and fundamental human rights. Nowhere is this more important than in the use by the state of lethal force.

We are living in an age where the death penalty has been abolished in almost all democratic states and has been abandoned in international criminal law, even for the most heinous crimes. Even when the death penalty is still allowed, it may only be imposed by a court of law when, after a fair trial, the accused has been convicted of a most serious crime for which the death penalty is prescribed by law. Any other premeditated use of lethal force by state authorities will be regarded, by definition, as an extrajudicial execution.

(p. 650) It has been seen that the above principles regarding premeditated use of lethal force do not apply in a situation of armed conflict, in which international law allows for use of such force against combatants (privileged or de facto) and against civilians while they are taking direct part in hostilities. It is not surprising therefore that states which have resorted to use of lethal force against suspected terrorists have either made the legal claim that the situation is one of armed conflict, or the more political claim that the situation is one of a ‘war on terror’. It has been stressed here that there cannot be an armed conflict with terror or terrorists in general. The situations in which a legitimate claim may be made that the group to which the suspected terrorists belong is involved in an armed conflict (international, non-international, or mixed) with the victim state are quite limited. In many situations classification of the situation as one of armed conflict lacks sound legal foundations. State authorities must then contend with a law enforcement legal regime under which lethal force may lawfully be employed only in the most restricted circumstances. The accepted view is that this legal regime only allows for use of lethal force as a last resort when other less drastic measures of prevention have become unfeasible. Such an approach rules out premeditated use of lethal force.

When the suspected terrorists operate out of the territory of a state which is either unwilling to restrain them, or incapable of doing so, the accepted view presents counter-terrorist agencies in states that have been subject to transnational terror attacks with a serious dilemma. It is exactly in such situations, in which the alternative less drastic measures prescribed by a law enforcement regime are unavailable, that attempts have been made to provide a legal basis for use of premeditated lethal force against suspected terrorists. Opponents of these attempts argue that relaxation of the normal legal rules leads to undermining the rule of law and condoning of extrajudicial executions. Proponents claim that states that have to defend themselves against terror must act to prevent future attacks, and that the opponents ‘seem to be blind to real life hard choices’, offering ‘nice recipes … that have little practical relevance’.105

Besides all other issues that have been discussed above, there is one further threat to the rule of law involved in use by states of premeditated lethal force against suspected terrorists. Because of the highly dubious legality of such action, in almost all cases the state authorities act clandestinely, generally refusing to acknowledge that they were involved in any way in an ‘extrajudicial execution’. Consequently there is no accountability of any type and no way of examining whether the decision to use lethal force had been based on a reasonable assessment that in the absence of any other available measures use of such force was absolutely necessary. One of the advantages of the view that favours relaxation of the demand that lethal force only be used to thwart an imminent attack is that it opens up the way for a system of (p. 651) accountability such as that demanded by the Supreme Court of Israel in the PCATI case.106 Given the fact that states are probably going to use force against suspected terrorists when other law enforcement measures are unfeasible or totally impractical, the argument may be made that it would be better to have some rules and a system of accountability, however imperfect, than no rules and no accountability at all.

Notwithstanding these arguments, it would seem that the dangers to the rule of law of allowing the executive branch of government to make decisions that lethal force should be used against specific individuals is too great to allow deviation from the accepted norms. Maintaining the rule of law is an essential part of the struggle of democratic states against terror. This was stated most eloquently by Chief Justice Aharon Barak at the end of his judgment in the case in which the Supreme Court of Israel prohibited use of special methods of interrogation, including ‘moderate physical pressure’ in cases of suspected terrorists:

That is the fate of democracy, in whose eyes not all means are permitted, and to whom not all the methods used by its enemies are open. At times democracy fights with one hand tied behind its back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of its security stance. At the end of the day, they strengthen it and its spirit, and allow it to overcome its difficulties.107

What conclusions can be drawn from the above discussion? The main conclusion would seem to be that rather than trying to fit all situations of terror and counter-terror actions into the armed conflict framework, even when this seems highly contrived, attempts must be made to strengthen law enforcement mechanisms for effective action against suspected terrorists. This obviously requires furthering international cooperation in law enforcement. Unfortunately, the political dimensions of terror, the persistent view of some states that terror may at times be justified, and the active or passive support given by certain states to organizations which regularly employ terror, make such cooperation difficult in the very cases in which it is most needed. Notwithstanding these difficulties, such attempts much continue.

Epilogue

After this chapter was completed and just prior to its publication, US President Barack Obama made the dramatic announcement on 1 May 2011 that a US commando force had killed Osama bin Laden in Pakistan. No right-minded person (p. 652) could have any sympathy for bin Laden, a self-confessed terrorist who was the founder and leader of al Qaeda which perpetrated terrorist attacks in different parts of the world, the most destructive of which was the catastrophic 9/11 attack on the US. Given bin Laden’s ideology and actions, most people are likely to be somewhat impatient with legal niceties. In extreme cases like this, the executive branch in countries which have been the victims of terrorist attacks may well be tempted to adopt a policy of ‘shoot first’ and ‘ask questions later’. Nevertheless, if the rule of law is to be maintained in the struggle against terror, the legality of use of lethal force by states must be ensured, even in the most extreme cases.

As is evident from the analysis in this chapter, the killing of bin Laden raises legal issues on two levels:

  • •  the use of force by the US in the territory of Pakistan; and

  • •  the use of lethal force against an individual who was not at the time involved in committing an act of violence.

As to the first question, from the available evidence it would seem that the US had the explicit or implicit consent of Pakistan’s Government to carry out counter-terror operations in its territory.108 In this situation, even if the US did not have consent to carry out the specific attack on bin Laden it would be hard to argue that the US action involved a violation of Pakistan’s territorial integrity or political independence.

The more difficult question is the second one, namely whether the use of lethal force against bin Laden was justified. This depends first and foremost on whether one accepts the US view that it is involved in an ongoing armed conflict with al Qaeda. If one does, a credible argument may be made out that as the military leader of al Qaeda, bin Laden was a legitimate target unless he manifested his intention to surrender when confronted with the US commando force in his compound. Assuming that bin Laden did not reveal any such intention, the question becomes whether it was expected that other persons who were not legitimate targets would be endangered by the attack and, if so, whether killing or wounding them was excessive in relation to the direct and concrete military advantage anticipated from using lethal force against bin Laden. In making such an assessment, relevant factors would include whether bin Laden could have been apprehended without using force that endangered others. If so, using lethal force against him did not meet the proportionality test.

(p. 653) Assuming, as many commentators do, that there is no ongoing armed conflict between the US and al Qaeda, one would have to judge the legality of the US action on the basis of a law enforcement model. Under this model, the aim of the US action would have had to have been the apprehension of bin Laden. Only if during the attempt to apprehend him bin Laden himself or those around him posed an immediate danger to the US force would use of lethal force have been absolutely necessary, and hence lawful. If not, it would seem to have been an extrajudicial execution. At the present time, there is not enough credible evidence available on which to make a sufficiently informed assessment as to whether such a danger existed or not. It is, however, to be hoped that the US will release a full report of the exact circumstances of the action soon so that such an assessment will be made possible.

Footnotes:

N Melzer, Targeted Killing in International Law (OUP, Oxford 2008) 75.

A Cassese, International Law (2nd edn OUP, Oxford 2005) 56.

K Anderson, ‘Targeted Killing in U.S. Counterterrorism Strategy and Law, A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution’ (2009) 〈http://ssrn.com/abstract=1415070〉 accessed 29 August 2010; G Solis, ‘Targeted Killing and the Law of Armed Conflict’ (2007) 60 National War College Review 127; CJ Tams, ‘The Use of Force Against Terrorists’ (2009) 20 EJIL 359.

D Bowett, ‘Reprisals involving Recourse to Armed Force’ (1972) 66 AJIL 1; TM Franck, Recourse to Force: State Action Against Threats and Armed Attacks (CUP, Cambridge 2002); K Zemanek, ‘Armed Attack’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (online edn OUP, Oxford 2009)http://www.mpepil.com〉 accessed 19 August 2011; N Lubell, Extra-Territorial Use of Force Against Non-State Actors (OUP, Oxford 2010) 55–63; ‘Chatham House Principles of International Law on the Use of Force in Self-Defence’ (2006) 55 ICLQ 963; UNGA, ‘A More Secure World: Report of the High-level Panel on Threats, Challenges and Change’ (2004) A/59/565 (Report of the High-level Panel) para 188.

Cassese (n 2) 357–63; Lubell (n 4) 63; Report of the High-level Panel (n 4) paras 189–91.

The terminology used can be confusing. An anticipatory attack is usually taken to refer to action against another state which is about to launch a concrete attack; a pre-emptive attack refers to action to prevent the country from mounting an attack in the future. Some authors prefer to distinguish between a pre-emptive attack and a preventive attack, for example, AD Sofaer, The Best Defense? Legitimacy of Preventive Force (Hoover Institute Press, Stanford 2010) 9–10. Despite the opinion of international lawyers that attacks aimed at pre-empting non-imminent future attacks are unlawful, in the National Security Strategy of the United States 2002 (〈http://www.globalsecurity.org/military/library/policy/national/nss-020920.htm〉 accessed 27 October 2010), the US declared that if necessary it would act pre-emptively to forestall or prevent hostile acts by its adversaries, ‘even if uncertainty remains as to the time and place of the enemy’s attack’. This idea was repeated in the US National Security Strategy 2006 〈http://georgewbush-whitehouse.archives.gov/nsc/nss/2006/〉 accessed 27 October 2010. This view has been criticized by experts and foreign governments alike. Even the UK, the closest ally of the US in the struggle against terror, has taken issue with this view. See the statement of the UK Attorney-General, Lord Goldsmith, speaking in the House of Lords on 21 April 2004: ‘It is therefore the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote’: Hansard HL vol 660, col 370 (21 April 2004) 〈http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo040421/text/40421-07.htm#column_369〉 accessed 26 February 2011.

Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 139. Three judges expressly took issue with this view. See Separate Opinion of Judge Higgins 33–4; Separate Opinion of Judge Kooijmans 35–6; Declaration of Judge Buergenthal 5–6; cf Armed Activities on the Territory of the Congo case (Judgment) [2005] ICJ Rep 147 in which the Court said it had no need to decide ‘whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces’. This view was severely criticized in the separate opinions of Justices Kooijmans and Simma.

D Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Self-Defence’ (2005) 16 EJIL 171, 186–7 and the authorities cited there in n 70; Lubell (n 4) 30–42; Chatham House Principles (n 4); SR Ratner, ‘Self-Defense Against Terrorists: The Meaning of Armed Attack’ (2010) in L van den Herik and N Schrijver (eds), Counter-terrorism and international law: meeting the challenges (forthcoming 2011).

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14 (Nicaragua case) para 195.

10  Y Dinstein, War, Aggression, and Self-Defence (CUP, Cambridge 2005) 195.

11  Lubell (n 4) 48–55; Ratner (n 8).

12  Ratner (n 8).

13  Y Ronen, ‘Israel, Hizbollah and the Second Lebanon War’ (2008) 9 Ybk IHL 362; Lubell (n 4) 53–5. See also Tams (n 3) 370.

14  On the question of when a terrorist attack may be imputed to a state see G Travalio and J Altenburg, ‘State Responsibility for Sponsorship of Terrorist and Insurgent Groups: Terrorism, State Responsibility, and the Use of Military Force’ (2003) 4 Chicago JIL 97; D Jinks, ‘State Responsibility for Sponsorship of Terrorist and Insurgent Groups: State Responsibility for the Acts of Private Armed Groups’ (2003) 4 Chicago JIL 83; D Brown, ‘Use of Force against Terrorism after September 11th: State Responsibility, Self-Defence and Other Responses’(2003) 11 Cardozo JICL 1; JNB Frank and J Rehman, ‘Assessing the Legality of the Attacks by the International Coalition Against Al-Qaeda and the Taleban in Afghanistan: An Inquiry into the Self-Defense Argument Under Article 51 of the UN Charter’ (2003) 67 J Crim L 415; MN Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’ (2002) 32 Israel Ybk HR 53.

15  Nicaragua case (n 9) para 115.

16  Lubell (n 4) 36–42.

17  Lubell (n 4).

18  Armed Activities on the Territory of the Congo case (n 7) paras 146–7.

19  Chatham House Principles (n 4); Dinstein (n 10) 247; Schmitt (n 14); R Müllerson, ‘Ius Ad Bellum and International Terrorism’ (2002) 32 Israel Ybk HR 1; Sofaer (n 6) 52; Ratner (n 8).

20  Nicaragua case (n 9) para 176.

21  Lubell (n 4) 63–8.

22  See the sources cited by Lubell (n 4).

23  ‘Eighth Report on State Responsibility of Robert Ago to the International Law Commission’ (1980) A/CN.4/318/Add.5-7 para 121.

24  Dinstein (n 10) 247.

25  Dinstein (n 10) 213–17.

26  Anderson (n 3); MN Schmitt, ‘State-Sponsored Assassination in International and Domestic Law’ (1992) 17 Yale JIL 609, 648–9; and the views of the US Administration presented by Ratner (n 8).

27  Lubell (n 4) 69–80.

28  The Public Committee against Torture in Israel (PCATI) v Government of Israel Judgment of the Supreme Court of Israel HCJ 769/02 (PCATI).

29  Y Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’ in L Henkin (ed), The International Bill of Rights—the Covenant on Civil and Political Rights (Columbia University Press, New York 1981) 114–15; WP Gormley, ‘The Right to Life and the Rule of Non-derogability: Peremptory Norms of Jus Cogens’ in BG Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff, Dordrecht 1985) 120; N Rodley, The Treatment of Prisoners under International Law (2nd edn OUP, Oxford 1999) 178–9.

30  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 para 25.

31  Prosecutor v Tadic (Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72 (2 October 1995) para 70.

32  Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) (AP I).

33  C Greenwood, ‘Customary Law Status of the 1977 Geneva Protocols’ in AJM Delissen and GJ Tanja (eds), Humanitarian Law in Armed Conflict—Challenges Ahead: Essays in Honour of Frits Kalshoven (Martinus Nijhoff, Dordrecht 1991) 93.

34  Prosecutor v Boškoski (Trial Chamber Judgment) ICTY-04-82 (10 July 2008) paras 184–92.

35  Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) (AP II).

36  Melzer (n 1) 266.

37  R Kolb and R Hyde, An Introduction to the International Law of Armed Conflicts (Hart, Oxford 2008) 106; T Franck, ‘Editorial Comments: Terrorism and the Right of Self-Defence’ (2001) 94 AJIL 839, who mentions that this view was advanced at a conference of primarily German international lawyers; R Goldman, ‘Certain Legal Questions and Issues Raised by the September 11th Attacks’ (2001) 9 Hu Rts Brief 2, arguing that there may be a transnational armed conflict between a state and an organized armed group. For an excellent presentation of the differing views on this issue see RS Schondorf, ‘Extra-State Conflicts: Is there a Need for a New Legal Regime?’ (2005) 37 NYU JILP 1; G Corn and ET Jensen, ‘Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations’ (2009) 42 Israel L Rev 45.

38  International Institute of Humanitarian Law, ‘The Manual on the Law of Non-International Armed Conflict with Commentary’ (Sanremo 2006) para 1.1.1.a 〈http://www.dur.ac.uk/resources/law/NIACManualIYBHR15th.pdf〉 accessed 4 January 2011. The draft Manual was also printed as a Supplement in (2006) 36 Israel Ybk HR. In a Commentary to their draft Manual, the authors state expressly that non-international armed conflicts do not ‘encompass conflicts extending to the territory of two or more States’.

39  M Sassòli, ‘Transnational Armed Groups and International Humanitarian Law’ (Program on Humanitarian Policy and Conflict Research Harvard University Occasional Article Series Winter 2006) 〈http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper6.pdf〉 accessed 2 August 2011. Also, see D Jinks, ‘September 11 and the Laws of War’ (2003) 28 Yale JIL 1, 16; D Jinks, ‘The Laws of War: Past, Present, and Future: Article: The Applicability of the Geneva Conventions to the “Global War on Terrorism”’ (2005) 46 Va JIL 165, 188–9.

40  Sassòli (n 39); Jinks, ‘The Laws of War’ (n 39); Schondorf (n 37); Melzer (n 1) 257–61; Lubell (n 4) 103–4.

41  Melzer (n 1) 261.

42  Geneva Convention (III) Relative to the Treatment of Prisoners of War 1949 (adopted 12 August 1949, entered into force 21 October 1950) (GC III).

43  Under art 43 AP I ‘[t]he armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party’. In the unlikely case of a terrorist group that is under a command responsible to a state involved in an international armed conflict, members of the group will be regarded as part of the armed forces of that state. As the case of a conflict between a state that is party to AP I and a people fighting against racial discrimination, colonial subjugation, and foreign occupation is really a theoretical possibility, we shall not consider it here.

44  J Pictet (ed), Commentary on the Third Geneva Convention Relative to the Treatment of Prisoners of War (ICRC, Geneva 1960) 57; N Melzer, ‘Interpretive Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law’ (ICRC, May 2009) 23 (Interpretive Guidance) 〈http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/direct-participation-guidance-2009-icrc.pdf〉 accessed 20 August 2010.

45  There is some disagreement in the literature as to whether these demands apply to the group as a whole or to individual members. See Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (CUP, Cambridge 2004) 43; KW Watkin, Combatants, Unprivileged Belligerents and Conflicts in the 21st Century (International Humanitarian Law Research Initiative, 2003) 9–10. This question is not discussed here.

46  Interpretive Guidance (n 44) 22.

47  Interpretive Guidance (n 44) 22.

48  University Centre for International Humanitarian Law Geneva, ‘Expert Meeting on the Right to Life in Armed Conflicts and Situations of Occupation’ (2005) 36–7 〈http://www.adh-geneve.ch/pdfs/3rapport_droit_vie.pdf〉 accessed 30 August 2010; Interpretive Guidance (n 44) 27–8.

49  See, for example, art 8.2(e)(i) Rome Statute of the International Criminal Court 1998, which includes amongst war crimes in non-international armed conflicts intentionally directing attacks ‘against individual civilians not taking direct part in hostilities’.

50  ICRC, Commentary on Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (ICRC, Geneva 1987) para 4789. Some authors, reluctant to employ the term ‘combatant’ to describe those who belong to the fighting force of non-state actors in non-international armed conflicts, suggest using the term ‘fighter’; Lubell (n 4) 148. The problem with this approach, as Lubell concedes, is that it works fine in English, but not necessarily in other languages such as French, in which there is not a similar synonym for the word ‘combatant’.

51  Interpretive Guidance (n 44) 16.

52  K Watkin, ‘Forum: Direct Participation in Hostilities: Perspectives on the ICRC Interpretive Guidance: Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42 NYU JILP 641.

53  Interpretive Guidance (n 44) 36.

54  Watkin (n 52).

55  Watkin (n 52); WH Parks, ‘Air War and the Laws of War’ (1990) 32 Air Force L Rev 1, 118–20.

56  K Dörman, ‘The legal situation of unlawful/unprivileged combatants’ (2003) 85 IRRC 45; Y Dinstein (n 45) 29–33.

57  Interpretive Guidance (n 44).

58  Interpretive Guidance (n 44) 45.

59  Interpretive Guidance (n 44) 46.

60  Interpretive Guidance (n 44) 47.

61  Interpretive Guidance (n 44) 54–5.

62  MN Schmitt, ‘Forum: Direct Participation in Hostilities: Perspectives on the ICRC Interpretive Guidance: Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42 NYU JILP 697. For a reply to the criticism see N Melzer, ‘Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2010) 42 NYU JILP 831.

63  Interpretive Guidance (n 44) 54: ‘the assembly and storing of an improvised explosive device (IED) in a workshop, or the purchase or smuggling of its components, may be connected with the resulting harm through an uninterrupted causal chain of events, but, unlike the planting and detonation of that device, do not cause that harm directly’.

64  PCATI (n 28) para 37.

65  Interpretive Guidance (n 44) 64.

66  Interpretive Guidance (n 44) 70.

67  Interpretive Guidance (n 44) 65.

68  This term was first used by Parks (n 55).

69  Interpretive Guidance (n 44) 72.

70  Interpretive Guidance (n 44) 78–82.

71  WH Parks, ‘Forum: Direct Participation in Hostilities: Perspectives on the ICRC Interpretive Guidance: Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42 NYU JILP 769.

72  This demand was accepted by the Supreme Court of Israel in the PCATI case (n 28).

73  PCATI (n 28); Interpretive Guidance (n 44) 77.

74  PCATI (n 28).

75  This exception is now generally not applicable since all States Parties to the ECHR, with the sole exception of Russia, have ratified Protocol No 6 to the Convention. This Protocol obliges States Parties to abolish the death penalty and to refrain from executing persons. The Protocol does allow states to retain the penalty for certain crimes in times of war, but only two states have informed the Secretary General of the Council of Europe that their law makes provision for this exception. Protocol 13 abolished the death penalty entirely.

76  The other two situations are when the force is used ‘in order to effect a lawful arrest or to prevent the escape of a person lawfully detained’ or ‘in action lawfully taken for the purpose of quelling a riot or insurrection’.

77  This is the way US Secretary of State Daniel Webster defined the conditions in which a state may use force in self-defence in the famous exchange of notes with Lord Ashburton following the Caroline incident in which Britain had used force against an American ship which was involved in supplying arms, money and provisions to rebels in Canada. See Caroline Case (1841) 29 British and Foreign State Papers 1137–8 〈http://avalon.law.yale.edu/19th_century/br-1842d.asp〉 accessed 15 August 2010.

78  G Nolte, ‘Preventive Use of Force and Preventive Killings: Moves into a Different Legal Order’ (2004) 5 Theoretical Inquiries in Law 111.

79  International Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) art 1; D Kretzmer, ‘Torture, prohibition of’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (online edn OUP, Oxford 2008)http://www.mpepil.com〉 accessed 19 August 2011.

80  McCann v United Kingdom Series A no 324 (1996) 21 EHRR 97.

81  UNGA ‘Study on Targeted Killings’ (28 May 2010) UN Doc A/HRC/14/24/Add.6 para 33.

82  UN Human Rights Committee, ‘General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13 para 10.

83  ‘U.S. Responses to Selected Recommendations of the Human Rights Committee’ (10 October 2007) CCPR/C/USA/CO/3/Rev.1/Add.1 and documents cited by Melzer (n 1) 79. Also see MJ Dennis, ‘Application of Civil and Political Rights Treaties Extraterritorially During Times of International Armed Conflict’ (2007) 40 Israel L Rev 453.

84  UN Human Rights Committee, ‘Concluding Observations: Israel’ (29 July 2010) UN Doc CCPR/C/ISR/CO/3; Legal Consequences of the Construction of a Wall (n 7).

85  Loizidou v Turkey (Preliminary Objections) (App no 15318/89) (1995) 20 EHRR 99.

87  Banković and others v Belgium and others (App no 52207/99) (2007) 44 EHRR SE5.

88  Banković (n 87). For criticism of the idea that this judgment restricts jurisdiction of states to the espace juridique of the Convention see R Wilde, ‘The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: Is It Relevant to Extraterritorial State Action?’ [2005] EHRLR 115; T Thienel, ‘The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence’ (2008) 6 JICJ 115.

89  Issa and others v Turkey (App no 31821/96) (2004) 41 EHRR 567. For analysis of ECtHR jurisprudence on the issue of extraterritorial application of the Convention see M Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’ (2005) 52 Netherlands ILR 349; Lubell (n 4) 191–235.

90  Issa (n 89). This language seems to have been borrowed from UN Human Rights Committee, ‘Burgos v Uruguay Communication R 12/52’ (1981) UN Doc A/36/40 176; in which the Human Rights Committee declared that ‘it would be unconscionable to so interpret the responsibility under art 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory’.

91  Al-Skeini v Secretary of State for Defence (n 86).

92  For strong support for the US position see Anderson (n 3).

93  Melzer (n 1) 243. Also see Lubell (n 4) 169–78; Study on Targeted Killings (n 81).

94  Anderson (n 3).

95  Anderson (n 3).

96  Sofaer (n 6) 96, quoting from speech of the UK Attorney General in the House of Lords.

97  Schmitt (n 14) 110.

98  Anderson (n 3).

99  Schmitt (n 26) 649.

100  Schmitt (n 26); Müllerson (n 19).

101  UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee on Report of Israel’ (21 August 2003) UN Doc CCPR/CO/78/ISR para 15 (emphasis added).

102  The legality of the Israeli practice of targeted killings has been widely discussed in the literature: E Gross, ‘Thwarting Terrorist Acts by Attacking the Perpetrators of their Commanders as an Act of Self-Defence: Human Rights Versus the State’s Duty to Protect its Citizens’ (2001) 15 Temple ICompLJ 195; O Ben-Naftali and K Michaeli, ‘“We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings’ (2003) 36 Cornell ILJ 233; M Gross, ‘Fighting by Other Means in the Mideast: a Critical Analysis of Israel’s Assassination Policy’ (2003) 51 Political Studies 350; Kretzmer (n 8); AN Guiora, ‘Targeted Killing as Active Self-Defense’ (2004) 36 Case Western Reserve JIL 319.

103  PCATI (n 28). For critical discussion of this judgment see KE Eichensehr, ‘On Target? The Israeli Supreme Court and the Expansion of Targeted Killings’ (2007) 116 Yale LJ 1873; A Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killings’ (2007) 5 JICJ 339; H Keller and M Forowicz, ‘A tightrope walk between legality and legitimacy: an analysis of the Israeli Supreme Court’s judgment on targeted killing’ (2008) 21 Leiden JIL 185.

104  Concluding Observations of the Human Rights Committee (n 84) para 10.

105  Müllerson (n 19) 18.

106  PCATI (n 28). The Court held that in every case in which a ‘targeted killing’ is used against suspected terrorists (as civilians taking a direct part in hostilities) there must be an independent inquiry to ascertain whether the norms regarding use of lethal force were complied with.

107  The Public Committee against Torture in Israel v The State of Israel HCJ 5100/94 53(4) PD 817, 845.

108  In a restrained press statement issued by the Foreign Ministry of Pakistan immediately after the US reported that bin Laden had been killed, the Government of Pakistan expressed ‘deep concerns and reservations on the manner in which the Government of the United States carried out this operation without prior information or authorization from the Government of Pakistan’. The Government did not, however, condemn the attack as a violation of its territorial integrity or sovereignty. This would seem to confirm that the US had implicit consent to act on Pakistan territory—〈http://www.mofa.gov.pk/Press_Releases/2011/May/PR_152.htm〉 accessed 8 May 2011.(p. 654)