The convenient truth behind Suicide Attacks in Islamic legal texts – Restrictions on Asymmetric Warfare

Jihadists and like-minded Salafi ideologues regularly advocate the legitimacy of suicide murder as a legitimate offense tactic, and certain sectors of Muslim society today appear to accept its authenticity with little reservation. Based on a principle popularized by the 13th century Muslim theologian Ibn Taymiyya, suicidal missions have become a staple tactic in the Jihadi playbook.  In response, a counter-argument must be carefully constructed by engaging the same sources in order to afford policy makers, law enforcement agencies and media outlets a viable means of debunking the myth of the principle’s legitimacy and a way to eradicate what has become a persuasive argument in the terrorist recruitment process at the ground level.

The principle mentioned is that of “plunging into the enemy” (Arabic inghimas), and it was developed, in part, in Ibn Taymiyya’s seven-century-old treatise titled A Principle Regarding Plunging into the Enemy, and is it Permitted?.[1]  Ibn Taymiyya, who is probably the most widely cited medieval scholar by the Salafi-jihadist trend in Islam,[2] understands “plunging into the enemy” very differently from today’s jihadists, although they refer to his writings and use the principle to justify suicide attacks in the explication of their ideology and their legal opinions (fatwas). Furthermore, and maybe even more importantly, their interpretation is not derived in accordance with appropriate Shari`a procedure, and it certainly does not override explicit Qur’anic and other legal texts prohibiting suicide.[3]

So how is this principle presented in the aforementioned treatise?

Right off the bat, Ibn Taymiyya, like other legal scholars, restricted the application of “plunging into the enemy” by stating that it would be “more appropriate” to carry it out in a situation of military asymmetry, when “an individual or group is fighting [an enemy] that outnumbers them, on condition there is some benefit to Islam in fighting, even if the (individuals) are likely to be killed.” Next, the author introduced three scenarios in which the principle specifically applies (translated here from the original text):

1. (Line 23) first scenario:

Like [in the case of] a man who storms the ranks of the infidels and penetrates them. Scholars call this “plunging into the enemy,” since [the man] is swallowed up in them like a thing that gets submersed in something that engulfs it.

2. (Line 24) second scenario:

And like a man who kills an infidel officer among his friends, for instance, by pouncing on him publicly, if he [can] get him by deceit, thinking he can kill him and take him unawares like that.

3. (Lines 25-26) third scenario:

And [like] a man whose comrades have fled and so he is fighting the enemy alone or with a few others, and yet this is inflicting harm on the enemy, despite the fact they know they are likely to be killed.

The Salafi-jihadi argument in support of suicide operations is neutralized through the following restrictions that emerge from the text-

1. Asymmetric warfare

The notion of “plunging into the enemy” is inextricably tied in the text with the undesirable asymmetric situation of confronting a numerically superior army, and lines 23-25 correctly read as cases in which a soldier on the battlefield decides to carry out an attack that will likely result in his death. Jihadist ideologues extended the medieval scholars’ idea of numerical superiority of the enemy to include the current technological superiority of Western militaries as justification for their interpretation of the scope of the “plunging into the enemy” principle. While including technical superiority is not a stretch, the leap to legitimizing suicide-murder is a far cry. In fact, the analogy as a whole becomes invalid, because it ignores the other restrictions (below) that must be considered in order to complete a valid analogy in Islamic law. Ibn Taymiyya was obviously aware of the notion of asymmetry in warfare, and despite that (or perhaps, because of that?) he placed several conditions on the principle’s applicability. Jihadist ideologues did not follow proper Shar`i procedure, because if they did they could not have manipulated the language of “the plunging” principle to suit their case.[4]

2. Suicide

Since suicide is absolutely forbidden in Islam, there would have to be a clear benefit to the outcome of a war, or a “decisive repulsion” (sic.) of the enemy’s damage to Islam, in order to permit a dangerous mission that could surely end with an individual’s death and/or create other Muslim casualties.[5]  In a case where a mission is deemed unquestionably beneficial to a battle, only then, “it is more appropriate” to apply the principle. This is an important restriction. The highly contextualized permission to “self-destruct” is taken out of context by the Salafis and constitutes a pivot point in their attempt to ground suicide bombing in Islamic law. They analogize a suicide bomber with an individual “plunging into the enemy”. However, in the case of plunging into the enemy, a combatant is expected to die at the hands of the enemy, not by his or her own doing. What this means is that the component of self-endangerment in plunging into the enemy does NOT include intentionally killing oneself. Furthermore, when one considers, let’s say, the last thirty years since the tactic gained popularity, it is clear that even the worst wave of suicide bombings (including the events of 9/11/2001) has never been able to demonstrate “a decisive repulsion of the enemy’s damage to Islam”.   Hence endangering oneself with the intention of inflicting harm on the enemy that does NOT decisively repulse the enemy’s damage to Islam is NOT permitted.

3. Non-combatants

According to Muslim scholars like Ibn Taymiyya, Plunging into the enemy clearly pertains to a battlefield-type situation in the course of a conventional war, involving combatants rather than a single event occurring in a concentration of non-combatants. Ibn Taymiyya is neither implying nor legitimizing “suicide mass-murder” of non-combatant men, women and children (Muslim or other Shari`a protected groups, like Jews and Christians). Instead, Ibn Taymiyya offers a highly restricted context within which an almost certainly “suicidal-type attack” on numerically (or by analogy) technologically superior enemy combatants could be rendered “more appropriate.” Ibn Taymiyya repeatedly states in his writings that Muslim and non-Muslim non-combatants must NOT be harmed and collateral damage should be avoided.

4. Chances of Survival

Finally and indubitably, Ibn Taymiyya sees the possibility of coming out alive from such a dangerous mission even when advocating martyrdom in the cause of God.[6] He neither asserts that the lone fighter will, in fact, be killed, nor argues that the success of the mission depends entirely on the fighter’s certain death. This is crucial, since the possibility of surviving is entirely absent when considering the intention and state of mind of a suicide terrorist, up to and during the act of taking his or her own life, especially with a weapon of choice that is explosive.[7]

Take-away

The promotion of suicide murder as a legitimate case of plunging into the enemy (inghimas) is an unfortunately successful name-game and an evasive legal device.[8] With false legal reasoning and a manifold decontextualization of an historical term, jihadist ideologues have managed to apply the term to a staple tactic in their strategy book. They have been spinning the Islamic tradition and law to suit their cause. Today’s jihadists are not faced with similar historical and geopolitical conditions as the medieval scholars they quote. Unlike the medieval scholars who possessed a structural disposition to cooperate with the state, Jihadists and many Salafists rebel against authority and delegitimize Sunni Muslim society in a manner that in certain regions is contributing to a breakdown of governance and social stability (Syria, Libya, Afghanistan, Iraq and Pakistan).[9] In fact, Jihadists’ form of dissent fits Islamic legal definitions of brigands (muharibun)[10] and rebels (bugha) who spread terror and destruction and whose terror-based methods and pursuit of indiscriminate slaughter and lawlessness are difficult to distinguish from those of bandits with all the Shari`a consequences of that. In doing so Jihadists have blurred the lines within Islamic law between a perceived expression of bravery and anti-Shari`a, deviant criminal behavior.

Dr. R. M. holds an M.A. and PhD in Arabic and Middle Eastern studies from NYU. She taught Arabic as an adjunct assistant professor at Queens College (SUNY) and New York University, and continues to privately prepare doctoral candidates for their proficiency exams in Arabic. Research interests and expertise involve medieval Arabic linguistic theory, Islamic legal reasoning, and Qur’anic exegesis. R. has been involved in West Point’s Combating Terrorism Center projects since 2005, including Gaining the Initiative project, the Salafi Ideology Project (Militant Ideology Atlas), and Jihadi ideology. As an FBI fellow at the CTC, she designed the curriculum for the CTC’s Arabic Familiarization course, Arabic Name Analysis and Phraseology. R is involved in CTC’s external education division for FBI/JTTF regional training, is currently a Terrorism Intelligence Analyst for InterPort Police.


[1] Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha?. This treatise has not been published in the West and is currently available only in Arabic, edited and prepared by Abu Muhammad Ashraf b. `Abd al-Maqsud, Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha? (Riyadh: Adwa’ al-Salaf, 2002). The only copy of the manuscript (#444) is said to be located at the Egyptian National Library in Cairo.

[2] For a detailed account on the proliferation of suicide attacks and popularization of martyrdom, see Assaf Moghadam, The Globalization of Martyrdom: Al Qaeda, Salafi Jihad, and the Diffusion of Suicide Attacks (Baltimore: Johns Hopkins University Press, 2008).

[3] Jihadist lexicon does not use the term “suicide attack,” rather one finds phrases like “carrying out jihad.”

[4] Partial statements by Ibn Taymiyya were isolated, stripped of deliberate restrictions, and elaborated on devoid of syntactic, juridical and historical contexts. In fact, Ibn Taymiyya himself criticizes those who use partial statements of Ibn Hanbal (d. 855 C.E.) thereby ignoring the complexity of his juridical opinion, al-Sarim al-maslul (Saudi Arabia: al-Haras al-Watani al-Sa`udi, n.d), vol. 2, pp. 483-484. In this respect, the jihadists’ case for their brand of martyrdom attacks lacks the legal reason (Ar. `illa) identified in the case of inghimas (plunging into the enemy). On the concept of `illa, see Nabil Shehaby, “`Illa and Qiyās in Early Islamic Legal Theory,” Journal of the American Oriental Society 102:1 (1982): pp. 27-46.

[5] A mission that falls under the definition of “plunging into the enemy” is dangerous and self-destructive, and in this sense, perhaps can be termed “suicidal.” This is different from other meanings signified by the word “suicidal” that relate to an explicit intention of ending one’s own life. For example Qur’an 4:29-30 says, “And do not take your own lives for God has mercy on you. And so he who does this in transgression and violation, We shall burn him in Hellfire. This is an easy feat for God.”

[6] Ibn Taymiyya, Qa`ida fi al-inghimas fi al-`aduww wa-hal yubah fiha? (Riyadh: Adwa’ al-Salaf, 2002), p. 36, line 45; refers to the Qur’an, chapter 9, verse 52.

[7] Dr. Boaz Ganor, “The Rationality of the Islamic Radical Suicide Attack Phenomenon,” International Institute for Counter-Terrorism, March 31, 2007.

[8] On prohibition of evasive legal devices, see Dr. Ahmad al-Raysuni, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (Herndon, VA: International Institute of Islamic Thought, 2005), pp.56-57.

[9] Compare with ideological roots of the Sovereign Citizen Movement in the U.S. and the movement’s rejection of U.S. government’s legitimacy.

[10] In a video in 2000, Abu Mus`ab al-Suri called jihadists to commit larceny, murder, arson, against non-Muslims in Muslim countries. And see Emrullah Uslu, “al-Qa`ida robbers target jewelry stores,” Jamestown Foundation: Eurasia Daily Monitor, 6:25 (2009) (accessed online http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=34476&tx_ttnews[backPid]=7&cHash=fdae903bb8). It is noteworthy that Ibn Taymiyya and other Muslim jurists have expressed their condemnation of such groups pursuing indiscriminate slaughter and lawlessness. For example, Ibn Taymiyya, Majmu` al-Fatawa, (al-Madina: Majma` al-Malik Fahd li-Taba`at al-Mushaf al-Sharif, 1995), vol. 4, pp. 440-441, 444, 450-452; and Minhaj al-Sunna al-Nabawiyya (Riyad: Ibn Sa`ud University, 1986), vol. 2, pp. 233, 244

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Targeted Killing: Bin Laden As a Legitimate Military Target

WRITTEN BY: DR. ELIZABETH BORG[1]

 

Introduction

After Israel made public a policy of ‘targeted killings’ of alleged terrorists in the Occupied Palestinian Territories[2] this term became common usage, however, it is neither defined under international law nor does it fit into any particular legal framework. According to a UN special report[3] targeted killings are premeditated acts of lethal force employed by States in times of peace or during armed conflict to eliminate specific individuals outside their custody. Moreover according to Melzer targeted killings can be defined as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary) and deliberate.[4] Examples of targeted killings include the November 2002 killing of alleged al Qaeda leader Ali Qaed Senyan al-Harithi and five other men in Yemen, reportedly by a CIA-operated Predator drone using a Hellfire missile[5] and the January 2010 killing, in an operation allegedly carried out by 18 Israeli Mossad Intelligence agents, of Mahmoud al-Mahbouh, a Hamas leader, at a Dubai Hotel.[6]  In this case, Osama Bin Laden was individually selected and intentionally targeted and killed by the United States[7] by means of a helicopter raid after months of decision making and planning. Hence, the killing of Bin Laden can be qualified as a targeted killing.

Targeted Killings and International Law

In a speech on the Obama Administration and International Law, Harold Koh[8] maintained that ‘as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defence under international law.’[9]

Article 2(4) of the UN Charter enshrines the prohibition on the use of force[10] however Article 51 of the UN Charter provides an exception[11] of self-defence and allows recourse to force on the territory of the State which was responsible for the armed attack on the territory of the Victim State. Moreover, it has been generally accepted in today’s paradigm on the use of force that the ‘armed attack’ does not necessarily have to be attributable to a State, but can also be carried out by a non-State actor[12] although apprehensions exist as to whether a State can use force in self-defence against the territory (‘Territorial State’) where the non-State actor may be present. For example, in the Case concerning armed activities on the territory of the Congo the ICJ held that Uganda did not have the right to exercise self-defence against the DRC because:

there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3(g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC. Thus, the lack of attribution between the non-State actors and the government of the DRC served as the inhibiting factor for Uganda to exercise self-defence. [13]

Additionally the dispute of whether, prior to the use of counterforce, consent is needed from the TerritorialState arises.  As a general rule, prior consent from the TerritorialState should be a prerequisite to the use of extraterritorial force on its territory. In the light of these circumstances, a limited exception to this general rule may be allowed when there is an immediate necessity to use force to either halt or repel an armed attack.  Nonetheless, formally requesting consent might not be practical, especially if armed attacks are on-going from the territory of the TerritorialState or, more controversially, when a State wishes to invoke pre-emptive self-defence. Under the Bush administration, the US had openly maintained that the ‘inherent right to self-defence’ encompasses anticipatory self-defence according to existing principles of customary international law.[14] Traditionally, the Caroline incident[15] has been recognized as the classic formulation of the right to anticipatory self-defence.[16] The above implies that if States believe they have the right to use pre-emptive self-defence against non-State actors, there must be unequivocal evidence that the threat is imminent and that the use of force is absolutely necessary in order to halt or repel the impending armed attack.[17]

Referring to Koh’s statement claiming the US is in an armed conflict with al-Qaeda, it was argued by the US that this armed conflict in Afghanistan could spill over onto Pakistan.[18]Assuming this is the case then International Humanitarian Law[19] applies, thus one needs to determine whether this conflict is of an international or non-international character so as to identify the body of rules that applies. The ICTY[20] in the Tadić Judgment defined armed conflict [21] implying that a higher threshold of violence is required for the classification as a non-international armed conflict[22] than an international armed conflict.[23] The latter is satisfied ‘whenever there is a resort to armed force’, whilst the former requires ‘protracted armed violence’ and the membership of an ‘organized armed group’. Although Koh does not explicitly classify the conflict, he mentions Common Article 3,[24] Additional Protocol II[25] of the Geneva Conventions[26] and Hamdi v. Rumsfeld.[27] These suggest that the current US position views the conflict as NIAC.[28] Both types of conflict will now be examined, concentrating upon the principle of distinction.

International Armed Conflict

Under the principle of distinction, the parties must distinguish between combatants and civilians, military and non-military targets. Article 43(2) of Additional Protocol I[29] states that members of the armed forces of a Party to a conflict are combatants having the right to participate directly in hostilities. However, it is difficult to classify al-Qaeda members as combatants because they are not part of the armed forces of a State nor do they fulfil the four conditions laid out in Article 4(A) (2) Geneva III[30] especially since the underlying premise of terrorism involves acts which are contrary with the laws and customs of war. The implication is that a terrorist is a civilian, and can only be the object of attack ‘for such time as they take a direct part in hostilities.’[31] For example, Cassese believed that under IAC, members of terrorist groups are to be regarded as civilians.[32] This is also reflected in the ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities.[33]  The ICRC Guidance states that:

In order to qualify as direct participation of hostilities, a specific act must meet the following cumulative criteria: 1. the act must be likely to adversely affect the military operation or military capacity of a party to the armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and the detriment of another.[34]

 

Another controversial issue is the status of unlawful combatant in IAC. Chief Justice Barak of the Israeli Supreme Court held that terrorists and their organizations in armed conflict of international character with Israel do not fall into the category of combatants, as ‘they do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished.’[35]

 

Non-international armed conflict

Article 1 of Additional Protocol II states that a NIAC is a conflict between the armed forces of a High Contracting Party ‘and dissident armed forces or organized armed groups.’ Meanwhile, Article 13(2) of Additional Protocol II states that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack,’ whilst Article 13(3) states that ‘civilians shall enjoy the protection […] unless and for such time as they take a direct part in hostilities.’ This protection is also emphasised by the ICRC Guidance[36] which makes a difference between ‘organised armed groups’ and dissident armed forces[37]suggesting that members of organized armed forces of a non-State Party, e.g. al-Qaeda, are only those who assume a continuous combat function. In view of this one concludes that individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities[38] are assuming a continuous combat function and not entitled to combatant privilege.[39] Additionally, an individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act.[40]

 

International Human Rights Law (IHRL)

In the absence of an armed conflict, the legal regime which applies is IHRL.  Alston observes that a law enforcement or state killing is only legal if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary).[41]  Another issue that arises is whether the International Covenant on Civil and Political Rights (1976)[42] has extraterritorial applicability. According to the Human Rights Committee, as declared in General Comment 31,[43]Article 2(1) of the ICCPR[44] should be read that each State party would have assumed its obligations under the ICCPR to ‘all persons within its territory’ and ‘all persons subject to its jurisdiction’ and ‘anyone within the power or effective control of that State.’  In view of the fact that Bin Laden was present in Pakistan where the US had no territorial control, the question is whether the US by virtue of the attack had power and effective control over him. It is hard to argue that targeting someone with the intention to capture or use lethal force against them does not amount to an exercise of power or control. The right to life can be regarded as a peremptory norm of customary international law. The right to a fair trial and the presumption of innocence are enshrined as principles in customary international law. This could imply that the United States is obligated to respect Bin Laden’s right to life and the due process of law.

Conclusion

Ultimately, it can be concluded that it is difficult to give a definitive judgment as to the legality of the use of lethal force against Bin Laden due to the lack of certainty of facts of the operation as well as a paucity of a definitive stance on targeted killings under IHL. One must also see which body of laws applies, i.e. IHL or IHRL. If the latter applies the use of lethal force must be absolutely necessary, proportional and thus the undesired last resort. The operation must be conducted in a preventive nature as opposed to punitive nature in order not to amount to an ‘arbitrary’ deprivation of life.[45] In view of the analysis made above, IHL of a NIAC applies meaning that the principle of distinction as well of self-defence must be examined in such a light.  The inherent self-defence serves as a justification for the extraterritorial use of force against a non-State actor in another State. Although Pakistan was not informed beforehand of the operation, and hence no consent was given, Pakistan’s reaction was a very cautious and it did not condemn the US’s actions.[46] This raises the question of precedent and whether cognisance of targeted killing proves the emergence of an internationally customary rule however this is not the case.[47] The legal justifications for self-defence claimed by the US, as explained in Koh’s speech,[48]  are : (i) that under IHL, Bin Laden is a legitimate target; (ii) that he was an imminent threat to the United States. Thus, Koh believes ‘there is no question that he presented a lawful target for the use of lethal force.’ In view of the above, the armed conflict is a result of counterforce to the 9/11 attack however the inherent right to self-defence suggests that force can also be used as a prevention to further attacks.  It can be inferred that because of the nature of this particular operation, the ‘porous frontier’[49] of Afghanistan[50] and Pakistan, Bin Laden being an integral part of al-Qaeda, being significantly responsible for 9/11 and other armed attacks, possibly planning further terrorist attacks, makes Bin Laden a legitimate target as a civilian with DPH as well serves as a justification for self-defence. However, this justifies the use of extraterritorial force, but not the lethal use of force against a targeted individual. The latter has to be examined in view of civilian DPH or membership in an organised armed group.  The fact that Bin Laden was widely recognised as having a leadership position within Al-Qaeda, as well as past experiences and events, fulfils the requirement for a lasting integration into an organised armed group as above-mentioned.  Melzer has argued that ‘in practice, a civilian who regularly and consistently directly participates in hostilities of a belligerent party will almost always be affiliated with an organized armed force or group and, thus, may be regarded as a de facto member assuming a continuous combat function for that force or group. As such, he is no longer considered to be a civilian and loses protection against direct attack for as long as he continues to assume such combat function.’[51] Hence, in view of the above, Bin Laden fulfils the requirement for a lasting integration into an organised armed group making him a legitimate target. However, as the ICRC Guidance suggest, the targeting of Bin Laden must adhere to the principle of proportionality and necessity.[52]  The latter suggests that even if an individual may be targeted, non-lethal means should be contemplated in circumstances where it is possible to do so. If Bin Laden has resisted the assault and died as a result of a fire fight then most probably, only lethal forces could be used there and then.  One must also keep in mind the principle of military necessity requires that the lethal force used must be of a degree and kind, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the military operation, in this case the submission of Bin Laden, with the minimum expenditure of life and resources.

In conclusion, the military operation conducted by the US was not unlawful in respect of IHL of NIAC since the extrajudicial force used in Pakistan can be justified as self-defence and Bin Laden can be considered as a legitimate military target.


[1] Graduated as a lawyer from the University of Malta in 2010, Dr. Elizabeth Borg continued her studies by pursuing a LLM in International Crime and Justice with UNICRI, a United Nations Institution in Torino. Dr. Elizabeth Borg is currently a Lawyer at the Department of Industrial and Employment Relations and can be reached at dr.elizabethborg@gmail.com or  elizabeth.borg@gov.mt

[2]Orna Ben-Naftali & Keren Michaeli, We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int’l L.J. 233, 234 (2003).

[3] UN General Assembly Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 28 May 2010

[4] Nils Melzer, Targeted Killing in International law. Oxford University Press, 2008: ‘Deliberate’ meaning that the death of the targeted person is the actual aim of the operation as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims.

[5] Jane Mayer, The Predator War, The New Yorker, 26 Oct. 2009; Greg Miller, C.I.A. Said to Use Outsiders to Put Bombs on Drones, LA Times, 13 Feb. 2009.

[6] Targeted Killing in Dubai: A Mossad Operation Gone Awry?, Der Spiegel, 23 Feb. 2010, http://www.spiegel.de/international/world/0,1518,679764,00.html;

Ilene Prusher, Was Mossad Behind Dubai Assassination? Israel Foreign Minister Isn’t Saying, Christian Science Monitor, 17 Feb. 2010, http://www.csmonitor.com/World/Middle-East/2010/0217/Was-Mossad-behind-Dubai-assassination-Israel-foreign-minister-isn-t-saying

[7] Hereinafter referred to as ‘US’

[8] Legal adviser to the US Department of State

[9] Harold H. Koh’s speech at the Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010 (hereinafter ‘Koh’s speech’), www.state.gov/s/l/releases/remarks/139119.htm.

[10] United Nations, Charter of the United Nations, 4 October 1945, 1 UNTS XVI, (hereinafter ‘UN Charter’), Art 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

[11]UN Charter, Art 51 ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security […].’

[12] Christian J. Tams, The Use of Force against Terrorists, 20(2) European JIL (2009), 359.

[13] Democratic Republic of the Congo v. Uganda,Judgment of 19 December 2005, ICJ Reports 2005, 168, 223, para.146.

[14] Richard K. Betts, U.S. National Security Strategy: Lenses and Landmarks, November 2004.

[15] Robert Y. Jennings, The Caroline and McLeod Cases, 32(1) American JIL (1939), 82.

[16]Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington, 24 April 1841, Secretary of State Daniel Webster called upon the British to show that the ‘Necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation […] and that the British force, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.’.

[17]Emanuel Gross, Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defence: Human Rights versus the State’s Duty to Protect Its Citizens, 15 TempleICLJ (2001), 195.

[18] Noam Lubell, Extraterritorial Use of Force Against Non-State Actors, 2010.

[19] Hereinafter ‘IHL’

[20] The International Criminal Tribunal of the FormerRepublic of Yugoslavia

[21] ICTY Trial Chamber, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, Case No. IT-94-1-AR72, ¶ 70: The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of territorialities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’

[22] Hereinafter ‘NIAC’

[23] Hereinafter ‘IAC’

[24] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 3116-18, 75 U.N.T.S. 31, 32-34 (hereinafter ‘Geneva I’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 3320-22, 75 U.N.T.S. 85, 86- 88 (hereinafter ‘Geneva II’); Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 3318-20, 75 U.N.T.S. 135, 136- 38 (hereinafter ‘Geneva III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3518-20, 75 U.N.T.S. 287, 288-90 (hereinafter ‘Geneva IV’).

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 1, 1125 U.N.T.S. 609, entered into force Dec. 7, 1978 (hereinafter ‘Additional Protocol II’).

[26] Common Article 3, Geneva Conventions, and Additional Protocol II, to which the U.S. is not a party, includes additional requirements, including that the conflict between the armed forces of the state 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.’  (Additional Protocol II).

[27] Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In Al-Aulaqi v. Obama, a D.C. district court, in dicta, interpreted Hamdan as holding that the conflict was a non-international armed conflict. See Al-Aulaqi v. Obama, 727 F.Supp.2d at 17 (asserting that Common Article 3, applied by the Supreme Court in Hamdan, would prohibit the government from using lethal

force against al-Aulaqi were he to turn himself in).

[28] In Hamdi v. Rumsfeld, supra note 19, the US Supreme Court responded to the petition by the US government that the conflict with al-Qaeda was not a conflict to which the full protections afforded to detainees under the Geneva Convention by saying that ‘[w]e need not decide on the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3, because, like Article 2, it appears in all four Geneva Conventions […].’5

[29] 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. (hereinafter ‘Additional Protocol I’)

[30]The four conditions imposed by the Geneva III are (a) being under responsible command; (b) wearing a fixed distinctive sign; (c) carrying arms openly; and (d) conducting their operations in accordance with the laws and customs of war.

[31] Article 51(3) of Additional Protocol I

[32] Antonio Cassese, Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law

[33] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Recommendation 1, ICRC, May 2009, (hereinafter ‘ICRC Guidance’). Recommendation 1 states that:  ‘For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participating in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in territorialities.’

[34]With regard to ‘direct causation’, the ICRC Guidance, pg. 52, states that ‘there must be a sufficiently close causal relation between the act and the resulting harm’; the ‘distinction between direct and indirect participation in territorialities must be interpreted as corresponding to that between direct and indirect causation of harm’; and, pg. 53, that ‘direct causation should be understood as meaning that the harm in question must be brought about in one causal step. Therefore, individual conduct that merely builds or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in territorialities‘. Ultimately, ‘only where persons are specifically recruited and trained for the execution of a predetermined territorialities act can such activities be regarded as an integral part of that act, and therefore, as direct participation in hostilities.’

[35] This is consistent with the Expert Opinion produced by Cassese who said (supra note 24): No ‘intermediate status’ exists between that of combatant and the status of civilian. A civilian who takes direct part in territorialities does not forfeit his or her civilian status but may become the lawful object of attack for the duration of his or her participation in combat. The term ‘unlawful combatant’ is a shorthand expression useful for describing those civilians who take up arms without being authorized to do so by international law; it has an exclusively descriptive character. It may not be used as proving or corroborating the existence of a third category of persons: in war time a person is either a combatant or a civilian; tertium non datur.

[36] ICRC Guidance, Part I, Recommendations of the ICRC, Recommendation II states ‘For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore entitled to protection against direct attack unless and for such time as they take a direct part in territorialities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (continuous combat function)’

[37] ICRC Guidance, pg. 33, :Membership for an organized arm group depends on ‘whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict’, and as a result, ‘the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities.’

[38] Hereinafter ‘DPH’

[39] Additional Protocol I, Art 43.1, Combatant privilege, namely the right to directly participate in hostilities with immunity from domestic prosecution for lawful acts of war, is afforded only to members of the armed forces of parties to an international armed conflict (except medical and religious personnel), as well as to participants in a levée en masse. Although all privileged combatants have a right to directly participate in hostilities, they do not necessarily have a function requiring them to do so (e.g. cooks, administrative personnel). Conversely, individuals who assume continuous combat function outside the privileged categories of persons, as well as in non-international armed conflict, are not entitled to combatant privilege under IHL (see also ICRC Guidance Section X).

[40] ICRC Guidance pg. 34

[41] Philip Alston, The CIA and Targeted Killings Beyond Borders Philip, Public Law and Legal Theory Research Paper series , Working Paper No. 11-64 September 2011 pg. 16. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, preamble; Code of Conduct for Law Enforcement Officials, art. 3, GA Res. 34/169, Dec. 17, 1979.

[42] Hereinafter ‘ICCPR’

[43] CCPR/C/21/Rev.1/Add.13, 26/05/2004, General Comment No. 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant State Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.

[44] ICCPR, Art. 2.1 states that: ‘Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’

[45]ICCPR, Art 6.1 states that, ‘every human being has the inherent right to life. […] No one shall be arbitrarily deprived of his life.’ This represents a protection of life against interference by State Organs.’ However, the use of ‘arbitrary’ implies that this protection is not absolute.

[46] Dwyer, Devin, Osama Bin Laden Killing: Pakistan Reacts Cautiously to U.S. Raid on Its Soil. Available at: http://abcnews.go.com/Politics/osama-bin-laden-killed-pakistan-reacts-cautiously-us/story?id=13507918

[47] Customary international law arises out of State practice and in this case it is the US and Israel which mainly engage in targeted killing and they do so amidst widespread criticism. This illustrates that states do not view target killing as a peremptory norm of international law and there is no opinio juris in respect of the execution of targeted killings.

[48] Supra note 6: Koh states ‘Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. […] [T]he manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender.’

[49] Ved. P. Nanda, War on Terror, 2009 37 Denv. J. Int’l L. & Pol’y 513, Nanda has observed that ‘one could justify the targeted strikes by the US in Pakistan on the ground that the geographical region of conflict stretches from Afghanistan to Pakistan, that suspected al-Qaeda and Taliban terrorists and their associates often cross that porous frontier, and that Pakistan has implicitly consented to such attacks.’

[50] Note that the US military team conducting the operation on 1 May 2011-2 May 2011 has reached Pakistan from Afghanistan.

[51] Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A response to four critiques of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities.

[52] ICRC Guidance, Section IX, contains a requirement of necessity, by imposing a restraint on the use of force in direct attack: In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind of degree and force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.