Published in July 2018.
This module is a resource for lecturers
Armed conflict context
Killing in the context of an armed conflict is generally regarded differently (legally, politically, morally) compared to its occurrence in a peacetime scenario. Important issues that arise in this context include how the legality of targeted killings should be determined in a context where other very different factual elements apply. Even though the loss of life is an inherent aspect of armed conflict, the taking of a person's life should never be undertaken lightly or gratuitously, and strict threshold criteria must still be satisfied.
That said these criteria differ in an armed conflict context compared to one of peacetime law enforcement. The threshold test for the use of lethal force in a situation of armed conflict is lower than the comparable one in a peacetime context once the level of violence has escalated to that necessary for it to be categorized as an armed conflict situation. As a consequence, some States have sought to argue that certain of their counter-terrorism operations have occurred in an armed conflict situation in order to benefit from this lower threshold, even though the suggested existence of an armed conflict or notion such as a 'global war on terror' has been strongly contested by many in the international community.
In terms of the key criteria, the principle of distinction must be adhered to, the target must be a combatant or "fighter" in the armed conflict, and their death must be necessary, otherwise the targeted killing will be unlawful. Even though armed conflict is governed by international humanitarian law as the lex specialis, as was discussed earlier in this Module, international human rights law is still relevant though the exact nature and extent of its application in an armed conflict situation is not entirely clear and can be contentious.
Another crucial point is whether targeted killings can be used as a means of national self-defence. To answer this question, one must refer to article 51 of the United Nations Charter, which states that "[n]othing in [the] Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations". Although this provision was originally intended to apply to inter-State attacks, it has been observed that terrorist incidents may amount to an "armed attack" for the purposes of article 51, thereby justifying the defensive use of force, including targeted killing (General Assembly, Human Rights Council report A/HRC/29/51, paras. 49-50). In terms of the associated jurisprudence, the ICJ Wall Advisory Opinion has often been cited as authority for the view that article 51 may only be invoked in response to an armed attack by a State or an entity whose actions are attributable to a State (ICJ, 2004, para. 139). Former Special Rapporteur, Philip Alston, associated himself with this more restrictive interpretative approach (General Assembly, Human Rights Council report A/HRC/14/24/Add.6, 2010, para. 40). By contrast, the subsequent judgment of the ICJ in the Armed Activities case is less categorical (2005, paras. 146-147). Whilst not overruling the Court's approach in the Wall case, it does not entirely foreclose the possibility that a non-State armed group may be capable of mounting a large-scale attack that may trigger the right to self-defence. State practice in the post 9/11 period has tended towards the recognition that non-State terrorist groups, such as al Qaeda, may launch armed attacks triggering the right to self-defence (Koh, 2010; Bellinger, 2007). The practice of the United Nations also supports this view, as evidenced by the adoption of, e.g., Security Council Resolutions 1368 (2001) which left open the possibility of the use of force in response to the 9/11 attacks.
Targeted killings in armed conflict contexts could be said to fall more within the realm of the jus in bello, or the law surrounding the conduct of hostilities. Either way, in order to assess the legality of wartime targeted killings, it must be established that an armed conflict does in fact exist (see further Module 6). Then, the lawfulness of a targeted killing, as a deprivation of life, hinges on whether the target constituted a legitimate military objective. This reverts back to the principle of distinction as a key rule in which non-combatants/civilians, combatants and military targets must be distinguished. Only the latter two can be legitimate military objectives and therefore lawful targets whose killings would not violate the right to life. This is because the military, and thus soldiers, are not seen as private individuals, but more as State proxies with military necessity dictating that war is aimed at weakening the enemy's military forces. The principle of distinction and identification of combatants are, however, much easier to apply in international armed conflicts than in non-international ones. This emphasises the importance of accurately determining what type of armed conflict exists. This would thus allow for an accurate determination of whether a targeted killing is indeed lawful.
The law surrounding non-international conflict does not refer to the word 'combatant' nor have States been willing to legally categorise armed opposition groups such as insurgents or rebels. Whilst article 4(A) Geneva Convention III, together with article 43 Additional Protocol I, provide some guidance regarding the classification of a 'combatant', it is not always easy to determine the exact status of non-State actors for the purposes of international humanitarian law. For example, parties to a conflict can be identified as having a military-like formation with a degree of organization and command structure as well as arguably the ability to respect international humanitarian laws. Some terrorist groups that share a common ideology could potentially be described in this way. Additionally, the effect of article 50(1) Additional Protocol I, which states that if in doubt a person must be deemed a civilian, is that the threshold in qualifying a targeted killing as lawful is high. This, however, has not always been reflected in State practice, which has demonstrated that States are willing to justify targeted killings based on mere suspicions that are not fully substantiated with concrete evidence, as discussed above in relation to gender-based killings.
Targeted killings have also resulted in the death of innocent civilians, and this even more likely to occur if terrorists are not targeted when they are proceeding with an attack, or if the targeted killing is done in a preventative or punitive manner. International humanitarian law bans indiscriminate attacks even in contexts of non-international armed conflict, as per article 51(5)(b) Additional Protocol I. Just as in peacetime situations, targeted killings of terrorists are not permitted in armed conflict contexts if there is no concrete and reliable evidence of an imminent danger. Doing so risks violating the right to life. Taking a preventative approach to targeted killings can reduce the evidentiary basis, and therefore legality, of such attack. The imminent - and not abstract - risk to warrant a targeted killing must be of a clear and compelling nature. Targeted killings not upholding the right to life and the rule of law more generally, may seem beneficial in the short term, but could amplify the dangers in the longer term such as by fuelling violent extremism through the accompanying rule of law violations (see further Module 2).
Any counter-terrorism strategy involving unlawful or unjustified killing carries with it the potential to impact negatively upon wider society, not only through physical harm caused to persons and property as part of any collateral damage, but also mental harm and trauma which can significantly impact upon a person's or community's ability to function properly. Though international humanitarian law does not consider mental harm as de lege lata (i.e., not within its legal scope), some have argued that it should be considered as de lege ferenda (i.e., that it should come within the scope of international humanitarian law, especially since its impact may be as significant as physical harm) (Lieblich, 2014). Not only is this true of the constant threat of targeted killings being carried out, which has been a very real possibility in some parts of the world, but also the constant presence of technology such as drones which can be used for intelligence gathering purposes including the identification of potential targets to be killed.