Written by: Teymour Aslam
With hindsight, it appears that the horrific events of September 11th, 2001, may have triggered a paradigm shift between established geopolitical alliances, altering conventional perceptions of, and existing relations between nation states, the manner in which international relations are conducted, and perhaps most relevantly, the utilisation of unconventional military tactics in situations which are becoming increasingly difficult to classify as conventional or traditional armed conflicts under IHL.
The events, if treated as isolated, may have remained significant only to the attackers and their victims. However, the scale of the attacks coupled with the identity of the perpetrators; reportedly a highly organized, independent, extremist faction of a foreign sponsored militant group; the event has had and will continue to give rise to a range of controversial implications regarding international relations, foreign policy and of course the treatment of international law.
Relevant to this article is the legal regime which governs the resort to military force- jus ad bellum, which sets the parameters for recourse to force during hostilities, i.e. when is it justified to attack? Who can be lawfully targeted during armed hostilities? And perhaps most importantly what level or proportional force is justifiable during attacks upon the sovereign soil of a nation state? This question bears teeth when the nation state in question is not one of the high contracting parties to the conflict and it has become increasingly relevant since the U.S has repeatedly tried to justify its targeting operations around the globe as resorting to means of available self defense.
The U.S tends to rely heavily and repeatedly upon Article 51[i] of the UN Charter which raises a number of important questions in itself. Why is the right of individual self defense included within the mandate of the UNSC? Is it appropriate to consider that the incidents of 9/11 constituted an “armed attack” against an entire nation? Did the attacks trigger a state of armed conflict under IHL? If so, between which parties? What is the nature of the ongoing conflict? International? Non- international? Furthermore, what rules and protocols of IHL should apply when addressing the legality of certain resorted to military exercises? These questions are peppered with controversy and are presented here to illustrate the extremely complex nature of modern warfare, what it has evolved into and the drastic consequences it has had and may continue to have upon almost every strata of civilized society.
In recent years, there has been considerable controversy regarding various aspects of the legality of targeted killings by drone attacks and increasing pressure upon states to account to the international community in such cases in order to allow for an assessment of whether applicable international legal obligations have been respected. Whether or not a specific targeted killing is legal depends on the context in which it is conducted i.e. during an ongoing armed conflict, outside an armed conflict, or in relation to the use of force.[ii] Under the rules of IHL, reprisal or punitive attacks on civilians are prohibited, [iii] and targeted killing is only lawful when the target is a “combatant” or “fighter”[iv] or, in the case of a civilian, only for such time as the person “directly participates in hostilities.”[v] In addition, the killing must be of military necessity, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity,[vi] and everything feasible must be done to prevent mistakes and minimize collateral harm to civilians.[vii]
These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a state and a non-state armed group (non-international armed conflict), including alleged terrorists. It is also important to add, in light of the circumstances under which militants have been killed remotely, that IHL expressly restrains the use of excessive force even against legitimate targets. This is made clear by the ICRC in its analysis of the rules governing direct participation in hostilities in the context of which it states that “the kind and degree of 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.”[viii]
Remotely controlled targeted killings conducted in the territory of other States raise severe sovereignty concerns.[ix] Under Article 2(4) of the UN Charter, Member States are forbidden from using force in the territory of another state.[x] When a state conducts a targeted killing in the territory of another state with which it is not in armed conflict, whether the first state violates the sovereignty of the second is determined by the law applicable to the use of inter-state force, while the question of whether the specific killing of the particular individual(s) is legal is governed by IHL and/or IHRL. A targeted killing conducted by one state in the territory of a second does not violate the latter’s sovereignty if either (a) the second state consents, or (b) the first, targeting, state has a right under international law to use force in self-defence under Article 51 of the UN Charter,[xi] because (i) the second state is responsible for an armed attack against the first state, or (ii) the second state is unwilling or unable to stop armed attacks against the first state launched from its territory. International law permits the use of lethal force in self defence in response to an “armed attack” as long as that force is necessary and proportionate.[xii]
The jus ad bellum requirement of proportionality, which has been recognized by the International Court of Justice, conditions defensive actions.[xiii] Proportionality requires that a state acting defensively employ no more force than reasonably required to overcome the threat. In the context of cross-border operations, this limitation means that the scale and nature of the force employed cannot exceed that which is necessary. For instance, if targeted air strikes against terrorist camps would suffice to dampen further attacks, it would be unlawful to mount large scale ground operations. The limitation is equally geographical. It would, for example, be unlawful to deploy forces where the terrorists are not located. Finally, such operations are temporally limited in the sense that withdrawal or cessation is required once the threat has been extinguished. While the basic rules are not controversial, questions relating to which framework governs in a particular setting and to the interpretation and application of the relevant rules have been the subject of extensive debate.
The most elusive questions remain: determining foremost whether or not an armed conflict exists and how to delimit its scope. Determining who may lawfully be targeted in such a setting, and on what basis? Deciding who is permitted to carry out such a killing and determining the extent to which, less-than-lethal measures are required to be used. In addition, when a state claims that it is permitted to use force, a range of further complex questions arise including the legal basis for the claim, whether in treaty or customary law; the circumstances in which consent is required from the state on whose territory the force is to be used; whether a right to self defense applies against non-state actors in analogous terms to the rules governing interstate force; whether anticipatory and/or pre-emptive strikes are permissible; and what the consequences are for IHL and IHRL from the invocation of the right to self-defense resulting in remote killings, collateral damage and civilian casualties, where the intelligence leading to such attacks is never one hundred percent accurate, and the aggressors are shielded behind a wall of technology.
[i] “U.N 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. Measures taken Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
[ii] The International Covenant on Civil and Political Rights (ICCPR) and other international human rights instruments provide that the right to life is absolute and non-derogable in both times of war and of peace, and individuals may not be deprived of that right arbitrarily. International Covenant on Civil and Political Rights art. 6, opened for signature Dec. 19, 1966, S. TREATY DOC. NO. 95-20, 999 U.N.T.S. 171, (entered into force Mar. 23, 1976) [hereinafter ICCPR]. See also Universal Declaration of Human Rights art. 3, G.A. Res. 217A, (Dec. 10, 1948); African Charter on Human and Peoples’ Rights art. 4, adopted June 27, 1981, 1520 U.N.T.S. 217 (entered into force Oct. 21, 1986); American Convention on Human Rights art. 4(1), adopted Nov. 22, 1969, O.A.S. T. S. No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978). The European Convention for the Protection of Human Rights specifies that the right to life will not b violated when force is “absolutely necessary” and used “in defense of any person from unlawful violence.” European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953) [hereinafter ECHR] art. 15. The ECHR allows for derogation for “lawful acts of war,” but no state has yet so derogated. For a detailed discussion of what constitutes “arbitrary” deprivation under international human rights law, see Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, U.N. Doc.A/61/311 (Sept. 5, 2006) 33-45.
[iii] Additional Protocol I, art. 51 (2)
[iv] Michael N. Schmitt, Charles H.B. Garraway & Yoram Dinstein, International Institute of Humanitarian Law, The Manual On The Law Of Non-International Armed Conflict (2006) Rule 2
[v] The principle of distinction permits only the armed forces of a party to the conflict to be attacked, and prohibits attacks on civilians (defined as all persons who are not members of the armed forces of a party to the conflict), unless they take a direct part in hostilities, for such time as they participate. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. (For the remainder of this article, these articles collectively will be referred to as “Common Article 3.”) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) arts. 51 & 52(1)-(2), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]; I1 Jean-Marie Henckaerts & Louise Doswaldbeck, Int’l Comm. Of The Red Cross [ICRC], Customary International Humanitarian Law: Rules (2005) [hereinafter ICRC RULES], RULES 1 AND 5-6. In case of doubt, the person must be considered a civilian. Additional Protocol I, International Humanitarian Law Research Initiative, Harvard University Program On Humanitarian Policy And Conflict Research, Hpcr Manual And Commentary On International Law Applicable To Air And Missile Warfare § C.12.(a) (2009), available at http://www.ihlresearch.org/amw/manual [hereinafter HPCR COMMENTARY]. Distinction is part of jus cogens, applicable in both international and non-international armed conflict. Nuclear Weapons, 1996 I.C.J., ¶ 78. U.N. Int’l L. Comm’n [ILC], Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 40, cmt. 5, U.N. Doc. A/56/10(SUPP) (2001); Additional Protocol I, , art. 51(4); HPCR COMMENTARY, § C.13.(a). ICRC RULES, Rules 11-13. See also NIAC Manual, Rule 2; US Navy, Marine Corps & Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1- 14M/MCWP 5-12.1/COMDTPUB P5800.7A ¶ 8 (2007) UNITED KINGDOM MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT, ¶ 5.32 (2004) [hereinafter UK Manual].
[vi] Proportionality requires an assessment whether an attack that is expected to cause incidental loss of civilian life or injury to civilians would be excessive in relation to the anticipated concrete and direct military advantage. Additional Protocol I, arts. 51(5)(b), 57, 85; ICRC RULES Rule 14; HPCR COMMENTARY, § C.14; US Commander’s Handbook, ¶ 8.3; UK Manual, ¶¶ 2.6–2.8; Rome Statute of the International Criminal Court art. 8(2)(b)(iv), July 17, 1998, 2187 U.N.T.S. 90.
[vii] Precaution requires that, before every attack, armed forces must do everything feasible to: i) verify the target is legitimate, (ii) determine what the collateral damage would be and assess necessity and proportionality, and (iii) minimize the collateral loss of lives and/or property. Additional Protocol I, at art. 57; ICRC RULES, at Rules 15-21; Prosecutor v. Kupreskic, Case No. IT-95- 16-T-14, Judgement, ¶ 524 (Jan. 14, 2000); HPCR COMMENTARY, § G.30; US Commander’s Handbook, UK Manual, ¶ 5.32. “Everything feasible” means precautions that are “practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” MELZER, at 365, citing the Protocols to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (1980); ICRC RULES, Rule 15; ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENVEVA CONVENTIONS OF 12 AUGUST 1949 Protocol 1, art. 51 (Yves Sandoz et al. eds., 1987)
[viii] International Committee Of The Red Cross, Interpretive Guidance on the Notion Of Direct Participation in Hostilities Under International Humanitarian Law 77 (2009)
[ix] For example, in April 1988, the Security Council condemned as an act of illegal aggression Israel’s killing in Tunisia of Khalil al-Wazir, also known as Abu Jihad. S. C. Res. 611, (Apr. 25, 1988). The killing was also said to have violated Tunisia’s sovereignty and territorial integrity. Al-Wazir, a leader in Fatah, the military arm of the Palestine Liberation Organization, was accused by Israel of conducting military operations in Israeli territory that left dozens of civilians dead. Jill Smolowe, Ron Ben-Yishai, and Dean Fischer, Middle East [sic] Gunned Down in Tunis, TIME, Apr. 25, 1988, available athttp://www.time.com/time/magazine/article/0,9171,967236-2,00.html. He was allegedly killed by a commando unit of the Israeli Defense Forces while in the study of his home. The killing was also condemned by the US State Department as “an act of political assassination”. Robert Pear, US Assails P.L.O. Aide’s Killing As ‘Act of Political Assassination, N.Y. TIMES, 18 April 1988.
[x] U.N. 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 . . . .”). “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”).
[xi] U.N. 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.”).
[xii] Military and Paramilitary Activities in and against Nicaragua (Nicar. vs. US), 1986 I.C.J. 14, ¶ 194 (June 27) see also O. Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1633-34 (1984). In the context of self-defence, force is proportionate only if it used defensively and if it is confined to the objective.
[xiii] See Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Study on targeted killings, UN Doc. A/HRC/14/24/Add.6 (26 May 2010).
A Contrario ICL 