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Assessing the legality of Targeted Killings

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Ana Pac

on 18 October 2012

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Transcript of Assessing the legality of Targeted Killings

The legality of Targeted Killings against suspected terrorists use of lethal force by one State (A) against a non-state actor who is currently in the territory of another State (B). State A claims that the said non-state actor is involved in terrorist activities directed against it or its citizens, and that State B has failed to take action to apprehend him and put an end to his terrorist activities, because it is either unwilling or incapable of doing so.
which regime of international law applies to the action of State A? Sovereignty Right to life of the individual If a state acts lawfully in
inter state relations, it does
not necessarily mean that the
act is lawful towards the
individual who is being targeted Criminal Justice/ Law enforcement Law of Armed Conflict (LOAC)/ Hostilities regime
=lex specialis Concerned about the CONDUCT Concerned about the STATUS *Many states are reluctant to apply these rules since not ready to accept reciprocity towards the rebels International Armed Conflict (IAC) Non-International Armed Conflict (NIAC) =Must comply with standards of IHRL HR conventions *binding the signatory states Customary HR law *binding all the states Extra-territorial use of (possibly lethal) force=
Actual control rule "A targeted killing is the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator." (Alston, 2010) **Not defined under IL! PCATI (Supreme Ct of Israel), 2006 1) Targeting forces carried the burden of verifying the identity of the target as well as the factual basis for meeting the “direct participation” standard.
2) Even if the target was legally and factually identified by the Government as legitimate, State forces could not kill the person if less harmful means were available.
3) After each targeted killing, there must be a retroactive and independent investigation of the “identification of the target and the circumstances of the attack”; AND
4) Any collateral harm to civilians must meet the IHL requirement of proportionality. J Barak: the applicable law permitted the targeted killing of civilians for such time as they “directly participated in hostilities” as long as four cumulative conditions were met: J Barak: takes a HR model and uses it in an AC situation. Article 2(4) of the UN Charter = States are forbidden from using force in the territory of another State. No violation of the 2nd State's sovereignty if: Consent Right to Self-Defense A consenting State may only lawfully authorize a killing by the targeting State to the extent that the killing is carried out in accordance with applicable IHL or human rights law. *In absence of consent OR in addition to CONSENT Article 51 UN Charter= permits the use of lethal force in self-defence in response to an “armed attack” as long as that force is necessary and proportionate. Anticipatory/Pre-emptive self-defence Restrictive view (Article 51 UN C)=
may only be invoked AFTER an attack has taken place More permissive view (reflects State practice and Scholarship)=
self-defence also includes the right to use force against a real and imminent threat when “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” (Alston, 2010) -ICCPR
-ACHPR Proportionality
Necessity (no other means; absolutely necessary)
Duty to investigate (Art 6 ICCPR, Art 2 Para 2 ECHR)
Defense against unlawful violence (ECHR= 27 signatory states, but the way the Right to Life is phrased in Art 2 para 2 is largely accepted)
Can the fight against terrorist groups constitute an Inter-state conflict? would need a "resort to armed forces between States" How do suspected terrorists fit? Article 4 (A) (2) of GCIII provides that besides members of the armed forces of a state, persons entitled to POW status shall include: Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war. De facto " Unlawful/unprivileged" combatants???
*can be targeted only for such time as they directly participate in hostilities Under the ICRC’s Guidance, each specific act by the civilian must meet three cumulative requirements to constitute DPH:
(i)There must be a “threshold of harm” that is objectively likely to result from the act, either by adversely impacting the military operations or capacity of the opposing party, or by causing the loss of life or property of protected civilian persons or objects; AND
(ii)The act must cause the expected harm directly, in one step, for example, as an integral part of a specific and coordinated combat operation (as opposed to harm caused in unspecified future operations); AND
(iii)The act must have a “belligerent nexus” – i.e., it must be specifically designed to support the military operations of one party to the detriment of another. Distinction
Proportionality... =between non-State armed group and a State Intensity of the violence
Level of organization (identifiable group) (Common Article 3 GC) No status of combatant= no privileges
Can target civilians taking DPH Indeterminacy of the applicable legal regime
Ambiguous interpretation of crucial terms
Combatants in NIAC
Identification= Questionable intelligence
Accountability vacuum Need for an effective response to a conflict that is modern, non traditional, irregular, asymmetric +unconventional tactics and dynamics
Terrorists bound by IHL= problem of enforceability when there is no reciprocity between the parties
Is the currently existing legal regime sufficient and effective to face a non-traditional conflict against terrorist forces? Should we reassess the sufficiency of the laws that currently exist, as well as the practicability of their application?
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