6 - Human Rights & Life : The Spectre of Targeted Killings

Question 1

What can be said about the definition of targeted killings? (4)

Answer 1

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

Question 2

Characteristics of targeted killing? (5)

Answer 2

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)

Question 3

Are targeted killings and right to life compatible? (2)

Answer 3

1/ in most circumstances, TK violate right to life

2/ but may be legal sometimes in exceptional circumstance (e.g. in armed conflict)

Question 4

When does use of lethal force violate right to life? (4)

Answer 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

Question 5

Lawfulness use of lethal force under law enforcement regime? (3)

Answer 5

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

Question 6

Lawfulness use of lethal force in IHL context? (4)

Answer 6

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

Question 7

Characteristics of right to life under IHRL? (3)

Answer 7

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

Question 8

Characteristics of arbitrary deprivation of life under ECHR? (3)

Answer 8

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)

Question 9

Lethal force and necessity in ECHR case law? (4)

Answer 9

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

Question 10

Kretzmer 2-prong test to determine lawfulness of lethal force?

Answer 10

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?

Question 11

Main findings in McCann v UK (1995)? (3)

Answer 11

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)

Question 12

Main findings in Tagayeva v Russia (2017)? (3)

Answer 12

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

Question 13

How to assess necessity and proportionality of use of force? (5)

Answer 13

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

Question 14

Targeted killing in armed conflict context? (5)

Answer 14

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

Question 15

Loss of civilian status? (3)

Answer 15

1/ direct part in hostilities

2/ continuous combat function as member of an OAG in NIAC

3/ see ICRC guidance for determining DPH

Question 16

Problematic aspects of targeted killings? (4)

Answer 16

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”

Question 17

Main points to keep in mind regarding interplay between targeted killings and right to life? (4)

Answer 17

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)

Question 18

What factors in McCann v UK made the ECtHR find that the UK was in violation of Art 2? (5)

Answer 18

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

Question 19

Why did ECtHR find RUS in violation for using indiscriminate weapons in Tagayeva? (2)

Answer 19

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

Question 20

When does a civilian undertake DPH according to ICRC Guidance? (3)

Answer 20

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

Question 21

What obligations are on the State under the right to life (ICCPR)? (5)

Answer 21

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)