Published in May 2021.
This module is a resource for lecturers
Topic 2. Contemporary issues relating to the right to life
The use of lethal force by private security providers (PSPs) in law enforcement situations
In the last decade, several States have transferred some of their security functions to private security providers (PSPs). These operators have increasingly taken on potentially far-reaching law enforcement roles that may involve the use of lethal force. Since the law has traditionally applied to the use of force by States, the evolving role of PSPs has posed significant challenges to the protection of the right to life and raised important questions regarding the applicability of the existing legal framework to PSPs. In response, there have been international efforts to address such accountabilty gaps, such as a joint initiative of the Swiss Government and the International Committee of the Red Cross (ICRC). As the result of the Swiss initiative, the Montreux Document (2008) and the International Code of Conduct (2010) were adopted to encourage PSPs “to support the rule of law, respect the human rights, and protect the interests of their clients”. Though influential, the instruments are voluntary codes without the imposition of any accompanying legal obligations on States, for example, requiring them to adopt national legislation addressing existing gaps through the criminalization of certain conducts.
The outsourcing of key State functions, such as aspects of law enforcement, to a PSP may mean that in certain circumstances, States may not be responsible for the commission of human rights abuses under international human rights or international humanitarian law as would have been the case had the same acts been directly perpetrated by public sector officials; and an accountabilty gap may exist since PSPs, as non-States parties, cannot themselves be bound by such treaty obligations. That said, under the International Law Commission's Draft Articles on State Responsibility,that were adopted in 2001, some acts of PSPs can be attributed to the State. This includes situations when the PSP is “empowered by the law of that State to exercise elements of the governmental authority [and is] acting in that capacity in the particular instance”; when the PSP is “acting on the instruction of, or under the direction or control of, that State” in carrying out the act; when the PSP is exercising “elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority”; and where a State “acknowledges and adopts the conduct in question as its own” (Draft Articles of State Responsibility, articles 5, 8, 9 and 11).
The issue of private entities being empowered by States to employ force, with potentially lethal consequences, has not gone unnoticed by United Nations human rights bodies, which aim to ensure that any resultant accountabilty and impunity gaps are closed. For instance, in its General Comment 36, Article 6: right to life (3 September 2019), the Human Rights Committee refers that “when private individuals or entities are empowered or authorized by a State party to employ force with potentially lethal consequences, the State party is under an obligation to ensure that such employment of force actually complies with article 6 and the State party remains responsible for any failure to comply”. (p.3, para 15). In this sense, the State “must rigorously limit the powers afforded to private actors and ensure that strict and effective measures of monitoring and control, as well as adequate training, are in place in order to guarantee, inter alia, that the powers granted are not misused and do not lead to arbitrary deprivation of life”. (p. 3, para 15).
Parallel efforts to ensure that adequate regulatory frameworks and accountability mechanisms are put in place have not been without their own challenges. Although there are various mechanisms existing at the international level to regulate PSP conduct, a Human Rights Council Working Group, created by the Human Rights Council in its resolution 15/26, has also drafted several reports on the issue (see e.g. A/HRC/30/47). A principal focus of the Group has been on the development of a legally binding regulatory and oversight regime of private military and private security companies. Specifically, it has been calling for: "an international legally binding instrument to ensure consistent regulation worldwide and adequate protection of the human rights of all affected by the activities of private military and security companies. An international legally binding instrument can provide a standard regulatory framework and single dedicated body on issues related to the activities of private military and security companies, including accountability and the availability of effective remedies for victims" (A/HRC/36/47, para. 67).
Targeted killings have, over the past few decades, become more common within some counter-terrorism related State practices, especially since the 9/11 terrorist attacks and with technological advances such as in relation to drones.
With respect to how to define the term "targeted killings", different approaches exist. The approach of the United Nations Special Rapporteur (UNSR) on extrajudicial, summary or arbitrary execution was "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" (General Assembly, Human Rights Council Report A/HRC/14/24/Add.6, p. 3, para 1). An alternative definitional approach suggested by Melzer in Targeted Killing in International Law is the 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 (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" (Melzer, 2008, pp. 3-4)). Both definitions have their merits. Some may prefer the one offered by the UNSR for such reasons as: (a) its accessibility to those unfamiliar with the law of international responsibility; (b) its highlighting of the core elements of intent, premeditation and deliberate action calculated to cause death of the targeted individual; and (c) its clear application to the conduct of both State and non-State actors.
Targeted killings do not necessarily – and sometimes do not – take place within contexts of armed conflict or military operations. They may be undertaken with the purpose of protecting civilians and combatants alike, as well as reducing collateral damage in the location of the identified target. In addition, they are believed to decrease the efficacy of terrorist groups and, in some instances, may have prevented acts of terrorism thereby protecting the right to life of civilians.
There is significant scholarly disagreement regarding the efficacy of targeted killings as a counter-terrorism method, in particular “decapitation strikes” - attacks which target leadership figures within terrorist organizations in the hope of causing institutional collapse. Some researchers have argued that terrorist groups are particularly susceptible to decapitation because they have unique organizational structures which amplify the importance of leaders and make transition difficult (Price, 2012). Others have made the case that eliminating insurgent leaders increases a government’s chances of defeating terrorist groups while reducing overall terrorist violence (Johnston, 2012). Contrary to this, some scholars have also argued that terrorist leaders are often ideologues as much as they are activists, and that their primary impact is the construction of an appealing narrative and set of beliefs. (Gunaratna, 2002). On the organizational side, other experts contest that larger and more established groups benefit from multi-layered organizational structures and institutionalized leadership roles which make them capable of resisting destabilization in the face of leadership attacks. (Jordan, 2009; 2014).
Regarding the actions described above, the focus is on the importance of compliance with international law, including the right to life within peacetime law enforcement settings. The armed conflict context is examined in Module 8.
Targeted killings in domestic law enforcement operations
Law enforcement operations occur within the national sphere and in protecting the right to life, national police forces can, as a last resort, target a criminal individual in threatening situations to protect the lives of civilians. It is generally agreed that this type of situation is not "arbitrary" in nature and that it is permissible within the legal remit of international human rights law treaties and conventions, as outlined above. This interpretation of the existing law is reflected within Principle 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which provides that "intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life".
Notably, in some circumstances, targeted killings under a law enforcement model may infringe international human rights law, including the right to life. This is illustrated by the Principles of the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (para. 1), "Governments shall prohibit by law all extra-legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable... Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions."
An important concern, which can apply equally to other practices involving the use of lethal force, is that State agents may benefit from immunity from prosecution - whether through national legislation (e.g. special powers for the armed forces; or blanket powers to the security agencies to kill in certain security related contexts), policy and/or practice - despite any legal infringements. For involved officials to be prosecuted, official sanctions may be needed. In this way, those persons affected by their actions, including the relatives of deceased persons, can be denied access to an effective remedy which can, in and of itself, constitute a further human rights violation.
According to Amnesty International:
An extrajudicial execution is an unlawful and deliberate killing carried out by order of a government or with its acquiescence. Extrajudicial killings are killings which can reasonably be assumed to be the result of a policy at any level of government to eliminate specific individuals as an alternative to arresting them and bringing them to justice. These killings take place outside any judicial framework. (Amnesty International, 2003).
The Inter-American Commission on Human Rights has also commented on extra-judicial executions:
Similarly, in their law enforcement initiatives, states must not use force against individuals who no longer present a threat as described above, such as individuals who have been apprehended by authorities, have surrendered, or who are wounded and abstain from hostile acts. The use of lethal force in such a manner would constitute extra-judicial killings in flagrant violation of Article 4 of the [American] Convention... (2002, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr, Chapter III, para. 91).
The European Convention on Human Rights 1950 (ECHR) is the only human rights convention that expressly provides in article 2(2) that a loss of life shall not violate the right to life if it is "absolutely necessary" and in "defence of any person from unlawful violence". Necessity is therefore a pre-requisite, as prescribed by the European Court of Human Rights (ECtHR) in the McCann case (1995), considered in Module 8.
The requirement of necessity can only be fulfilled if there were no alternative means of safeguarding the lives of innocent persons, such as arrest. Lethal force cannot be the end goal and must be initially used to prevent escape of the suspect or harm to others. As a former United Nations Special Rapporteur observed, "it is never permissible for killing to be the sole objective of an operation" (General Assembly, Human Rights Council Report A/HRC/14/24/Add.6, para. 33). In addition, targeted killings in law enforcement situations must be proportional, must not be premised on the suspect’s history, rather based upon an assessment of the immediate danger and risks posed by the person, as was articulated in the McCann case. This cannot be applied in a way that widens the interpretation to include a non-imminent risk on the distant future, be punitive in character or constitute unjustified preventative action. Any targeted killing within the law enforcement context must be based on domestic law, which strictly controls and limits the permissible use of lethal force and be substantiated by sufficient evidence. These issues are explored further in exercise 1 on targeted killings.
Use of semi-autonomous technology
Issues relating to the right to life have arisen in relation to the use of semi-autonomous technology. These issues are briefly illustrated here by the use of drones, which have been a recurring source of political sensitivities and debates, raising human rights concerns in the context of counter-terrorism operations (as the movie “Eye in the Sky“ (video 4) depicts). The principles and issues considered here regarding drones are of broader applicability to technological innovations, including semi-autonomous systems.
Armed drones are unmanned aerial vehicles (UAVs), also referred to as remotely piloted aerial systems. According to the RAND Corporation, a UAV is “an aircraft that carries no human pilot or passengers [and which] can be fully or partilly autonomous but are more often controlled remotely by a human pilot". The use of drones can have several associated military advantages. For example, their use lowers the risk of casualties to pilots and troops compared with other conventional methods of warfare.
The use of drones, especially armed drones, has raised complex issues regarding the right to life, in particular with respect to their employment outside of the scope of established armed conflicts. The use of drones (such as military drones) can more readily facilitate the extension of the boundaries of a battlefield for participating parties in military operations. Some States, empowered by the increased ability to project force which unmanned aircraft offer, have adopted the “unwilling and unable” test. This is a legal position whereby the “use of force in self-defense against a non-state actor on the territory of a third State, without the consent of that third State, may be lawful under international law if the non-state actor has undertaken an armed attack against the State and the third State is itself unwilling or unable to address the threat posed by the non-state actor. The content of the “unwilling or unable” test, its pedigree, and whether it has become a part of customary international law have been widely debated among international law scholars and practitioners”. (Chachko and Deeks, 2016).
Another area of contention has been that although drones are intended and used to minimize civilian casualties, in practice, their use may result in further collateral damage. As with more conventional methods of warfare, such as the use of military fighter aircraft, the use of semi-autonomous weaponry can still involve some element of human discretion and error since it "is intended to only engage individual targets of specific target groups that have been selected by a human operator" (Gubrud, 2015). Furthermore, while the surveillance and precision strike capabilities offered by drones theoretically reduce the risk to civilians around strike areas, they also increase States’ willingness to employ force in areas previously considered out of bounds, which can ultimately put a greater number of civilians at risk (Shaw, 2016).
The technological advancement of this type of semi-autonomous force does not mean stepping outside of the current international legal framework. For example, for a drone strike to be lawful, it must still adhere to international human rights law, international humanitarian law and the ius ad bellum (laws governing the use of force), including in terms of related limitations regarding the use of any form of semi-autonomous technology (General Assembly, A/68/382, p. 2). The United Kingdom Parliament’s Joint Committee on Human Rights published a detailed summary of challenges to human rights law posed by State policies of targeted killing via drones. It makes clear that the lawfulness of a drone strike must be assessed on a case by case basis, such as whether the test of imminence is satisfied. Similarly, the threshold tests, such as regarding imminence, may differ depending on whether such strikes occur during peacetime and armed conflict situations. (Joint Committee on Human Rights, 2015-16).
Some uses of lethal force are only permissible within an armed conflict context governed by international humanitarian law, but not in a peacetime context governed by international human rights law. Enhancements in global surveillance capabilities, combined with the expansion of the ‘unable and unwilling’ test, and drones’ capability to project force into previously unreachable areas with reduced risk to the aggressor, have seen the traditional concept of imminence challenged and the threshold of threat significantly reduced. More generally, some areas of ambiguity still exist in relation to semi-autonomous weaponry, such as regarding the exact interpretative parameters of applicable international law. Concerns regarding the proliferation of such technology, the increased role of artificial intelligence and automation in decisions to kill, coupled with the risk of such technology falling into terrorist hands, have prompted many robotics and artificial intelligence pioneers to call for the ban on development of lethal artificial intelligence. (See the short film Slaughterbots (video 5).
Next page: Topic 3. Contemporary issues relating to foreign terrorist fighters
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