6 - Human Rights & Life : The Spectre of Targeted Killings Flashcards
What can be said about the definition of targeted killings? (4)
1/ not defined under IL
2/ synonyms : extrajudicial executions, assassinations, etc.
3/ does not fit neatly into any particular legal framework
4/ can occur in a variety of contexts and may be committed by gvts, their agents and OAGs
Characteristics of targeted killing? (5)
1/ deliberate, premeditated and intentional use of force
2/ by State or NSAG
3/ against specific ind. not in physical custody of perpetrator
4/ fundamental objective must be use of lethal force, intention to kill
5/ Alston (former Spec. Rap. on Extrajudicial, summary or arbitrary executions)
Are targeted killings and right to life compatible? (2)
1/ in most circumstances, TK violate right to life
2/ but may be legal sometimes in exceptional circumstance (e.g. in armed conflict)
When does use of lethal force violate right to life? (4)
1/ right to life is not absolute
2/ answer depends on applicable legal framework (law enforcement or IHL)
3/ States must always investigate circumstances in which lethal force was used
4/ “war on terror” rhetoric used to justify killing & push applicability of IHL framework
Lawfulness use of lethal force under law enforcement regime? (3)
1/ only allowed in most exceptional circumstances
2/ use of force must be absolutely necessary to protect persons from unlawful violence (e.g. McCann)
3/ so must be a last resort option
Lawfulness use of lethal force in IHL context? (4)
1/ use of lethal force is “name of the game”
2/ lawfulness depends on status of victim => only legitimate military targets may be targeted
3/ combatant/fighter status key
4/ can also extend to civilians taking direct part in hostilities
Characteristics of right to life under IHRL? (3)
1/ protects against ARBITRARY taking of life
2/ non-derogable but not absolute
3/ outside context of armed conflict, use of lethal force only permissible in very exceptional circumstances
Characteristics of arbitrary deprivation of life under ECHR? (3)
1/ Art. 2 ECHR
2/ prohibited in principle
3/ but 3 exceptions in para. 2 (defending person, lawful arrest and prevent escape, quelling riot/insurrection)
Lethal force and necessity in ECHR case law? (4)
1/ use of lethal force must be no more than absolutely necessary to defend persons whose lives are in danger
2/ strict test
3/ McCann v UK : use of force must be strictly proportionate to the three aims in Art 2(2) ECHR
4/ Tagayeva v Russia : domestic legal framework must be adequate and use of lethal force may not be indiscriminate
Kretzmer 2-prong test to determine lawfulness of lethal force?
1/ use of force absolutely required or other measures to protect available?
2/ if not ^, absolutely necessary to use lethal force or possible to employ some lesser degree of force?
Main findings in McCann v UK (1995)? (3)
1/ relates to use of lethal force in counter-terrorism operations
2/ honest belief is sufficient for use of lethal force
3/ but if alternative means available, use of lethal force unlawful (because not necessary)
Main findings in Tagayeva v Russia (2017)? (3)
1/ inadequacy of domestic legal framework (no adequate and effective safeguards against arbitrariness and abuse of force + immunities for taking life in anti-terrorism)
2/ indiscriminate use of lethal force (not enough care taken in use of force)
3/ not enough care taken in planning of operation to mitigate risks to hostages
How to assess necessity and proportionality of use of force? (5)
1/ strict test of lawfulness
2/ Giuliani and Gaggio v Italy (2011) : “absolute necessity”, so stricter and more compelling test of necessity
3/ McCann v UK (1995) : plan operation to minimise to greatest extent possible recourse to lethal force or incidental loss of life
4/ Alston: under IHRL targeted killing (intentional + premeditated) can NEVER be legal
5/ see also other arguments in lecture notes in favor of strict evaluation of necessity and proportionality
Targeted killing in armed conflict context? (5)
1/ only permitted when target is combatant, civilian taking active part in hostilities, civilian fulfilling continuous combat function (NIAC)
2/ but CCF is controversial due to treaty language (Alston)
3/ IHL principles apply : distinction, necessity, proportionality, precaution in attack
4/ standards apply both in IACs and NIACs
5/ stretching of the nexus requirement in context of war on terror
Loss of civilian status? (3)
1/ direct part in hostilities
2/ continuous combat function as member of an OAG in NIAC
3/ see ICRC guidance for determining DPH
Problematic aspects of targeted killings? (4)
1/ absence of transparency + accountability
2/ doubtful selection of target, usually without real effort to identify them based on involvement and direct participation in hostilities
3/ there appears to be an abdication of adherence to targeting rules
4/ see e.g. “death lists”
Main points to keep in mind regarding interplay between targeted killings and right to life? (4)
1/ need to be certain which legal framework applies
2/ there is never a vacuum => if ambiguity, IHRL applies
3/ taking of life may never be arbitrary
4/ whenever there is a use of lethal force, State has obligation to investigate lawfulness (independently of whether State or private entity used force)
What factors in McCann v UK made the ECtHR find that the UK was in violation of Art 2? (5)
1/ UK had violated Art 2 through their planning of operation
2/ failure to prevent suspects from crossing border
3/ failure to make allowance for possibility of incorrect intel
4/ use of military operatives for arrest
5/ THUS necessity requirement not satisfied
Why did ECtHR find RUS in violation for using indiscriminate weapons in Tagayeva? (2)
1/ the danger of using indiscriminate weapnos in the circumstances SHOULD have been apparent to anyone taking such decisions
2/ if the use of such weapons was unavoidable, should have been subject to strict supervision and control to minimize risk to hostages
When does a civilian undertake DPH according to ICRC Guidance? (3)
1/ threshold of harm likely to be met by actions;
2/ connection between act and harm expected; AND
3/ necus between act and armed conflict
What obligations are on the State under the right to life (ICCPR)? (5)
1/ duty not to arbitrarily take life
2/ duty to exercise due diligence to protect the life pf ind.’s against private actors
3/ this^ applies where threat to life is reasonably foreseeable
4/ HRC GC 36
5/ duty to investigate, prosecute and provide redress (Öneryildiz v Turkey)
