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«Jessica Dorsey and Dr. Christophe Paulussen ICCT Research Paper April 2013 This ICCT conference report provides a detailed overview from the two-day ...»

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affiliation, family ties, or other criteria prone to error, arbitrariness or abuse”.49 Instead, it must depend on whether one’s “continuous function corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict”.50 This continuous combat function role is crucial to distinguishing those who fight Ibid. See also Laurie Blank, “Defining the Battlefield in Contemporary Conflict and Counter-terrorism: Understanding the Parameters of the Zone of Combat”, Georgia Journal of International Law 1 (2010).

Military necessity when thinking about IHL is a threat-driven approach. That is one tool for undermining the narrow geographical idea.

How would the principle of humanity be relevant? There is a lot of protective aspects of IHL so it is important in this sense that the conflict would have a broad scope. In pure principles of humanity – you do not want to live in a conflict zone – you want to limit the conflict zone.

You need to look at what the law is trying to achieve.

See Statement by ICRC’s Washington D.C. Legal Advisor: Daniel Cohen, “Why and how IHL applies in Syria”, Intercross Blog (27 July 2012), http://intercrossblog.icrc.org/blog/why-and-how-ihl-applies-syria. In pertinent part: “As a matter of legal principle, when a NIAC between two or more parties occurs, the geographical scope of application of IHL/LOAC covers the whole territory of the affected State”.

ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009), 51-2; This distinction is also apparent in article 15(1)(b) GC IV.

Ibid.

Ibid.

The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 8 in an organised armed group from those who directly participate in hostilities on a merely spontaneous, sporadic or unorganised basis, or who assume exclusively political, administrative or other non-combat functions.51

4. International Humanitarian Law and International Human Rights Law: Menu à la Carte?

4.1 Introduction When there is an armed conflict, the question arises about which law is applicable. This raises additional questions such as the extraterritorial applicability of certain human rights treaties, principles of non-derogation, and ideas about whether IHL is the lex specialis and therefore always controls within an armed conflict or if there can be concurrent application of IHRL in certain situations or times where IHRL fully controls in an in bello framework. Two main issues were explored in-depth in the panel session: 1) IHL as lex specialis or IHRL as lex generalis in counter-terrorism, and 2) the complementarity of IHL and IHRL via the discussion of the killing of Osama Bin Laden. However, as the issues were handled with such synchronicity, the overlap dictates that they are handled concurrently in this paper.

4.2 Discussion In terms of the US conflict with al-Qaeda, Ohlin has set out the discussion in US federal courts on the application of the Authorization to Use Military Force (AUMF) by Congress for the President to fight the war on terror.52 The Justice Department of the Obama Administration claims that the AUMF should be interpreted in a manner consistent with international law, that the AUMF gives the President authority in accordance to what is allowed

under international law and IHL specifically. Within the support of this view another disagreement is apparent:

there are those that claim that the AUMF should be interpreted both in light of IHL and IHRL. For Ohlin this is an impossible position because IHL is a lex specialis “in the sense that it displaces other bodies of law, including domestic criminal law, with a set of radically different norms based on reciprocity, namely that combatants can kill each other with impunity but must protect civilians and others hors de combat”.53 He claims further that the ICRC is of the opinion that both IHL and IHRL can apply at the same time based on the Israeli Supreme Court’s Targeted Killings case. Ohlin dismisses this by pointing to the fact that there is no other precedent.54 In response, Gabor Rona states that international jurisprudence accepts the logic and necessity of applying IHRL in times of armed conflict, while the explicit terms of both instruments are in accordance with each other.55 Ohlin’s response was that the rule exclusion means that if there is an applicable rule of IHL on a specific issue, then IHL applies and IHRL does not,56 pointing again to the Israeli Supreme Court Targeted Killings case.57 The Court there applied a rule of IHL that allows the targeting of civilians taking DPH. However, the Court went further and concluded that a civilian taking DPH cannot be attacked when other less harmful means can be employed. The Court seems then to be reading IHRL norms on proportionality into the IHL proportionality norm applicable in that case. To Ohlin this kind of co-applicability, where IHRL and IHL apply to the same rule, is strange because, in his view, IHL is lex specialis and it always displaces IHRL when there is overlap in armed conflict situations. Concluding, he agrees that there exist lacunae in the relative scope of IHL and IHRL application to be filled by international law, but this is no reason to scrap the idea of concurrent application altogether.





Ibid.

Jens David Ohlin, IHL and IHRL, LieberCode (14 January 2012), http://www.liebercode.org/2012/01/ihl-and-ihrl.html.

Ibid.

He disagrees with the concurrent application of IHRL and IHL for three reasons. First, the most basic principles of IHRL such as the right to life do not make sense in armed conflict. Second, IHL is a much older body of norms that govern the humane treatment of prisoners and others hors de combat. Lastly, he points to the fact that states continue to develop IHL in the area of humane treatment; something that would not be necessary if IHRL applies.

Gabor Rona, “A Response to Ohlin About IHL and IHRL”, Opinio Juris (17 January 2012), http://opiniojuris.org/2012/01/17/a-response-toohlin-about-ihl-and-ihrl/.

Jens David Ohlin, “Response to Gabor Rona”, LieberCode (17 January 2012), http://www.liebercode.org/2012/01/response-to-gaborrona.html.

The Public Committee against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel (the “Targeted Killings Case”), Israeli Supreme Court, sitting as the High Court of Justice (11 December 2005), http://elyon1.court.gov.il/Files_ENG/02/690/007/A34/02007690.A34.pdf.

ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 9 The killing of Osama Bin Laden in May 2011 by US Navy Seals raised issues on the applicability of IHL and/or IHRL standards. The issue was whether the legality of the killing depended on the question whether Bin Laden could have been captured through non-lethal means rather than killed and if that would have been the preferred measure.58 Starting from the premise that both IHL and IHRL apply to this killing, Milanovic sets out in his article the relationship between both legal regimes. Under IHL, targeting takes place on the basis of status, meaning that Bin Laden, either as a combatant or a civilian taking DPH, could be attacked at any time while the status persists as long as he is not hors de combat. Under IHL there is no necessity requirement for attacking a target that has such a status so there is no obligation to first use non-lethal means or to capture or detain before going for the kill. This is different under IHRL, which proscribes the use of non-lethal means primarily, and only if those means are not practically feasible, can lethal use of force be lawful. Depending on the facts, the killing of Osama Bin Laden could be lawful where the risk to the life of others, including that of the US soldiers, in attempting to capture him alive and the risk of escape outweighed his right to life. The killing would not have been lawful only on the basis that it was vastly easier to kill him than to capture and prosecute him.59 The real disagreement now lies in how norms of IHL and IHRL should interact.60 Models of co-application exist according to Milanovic. One is based on the Nuclear Weapons Advisory Opinion of the ICJ and would be that any IHL-compliant taking of life is by definition not arbitrary for the purpose of article 6 of the International Covenant on Civil and Political Rights (ICCPR).61 IHL is then used to interpret article 6 ICCPR as a norm of IHRL, though other IHRL norms do not leave such interpretative space.

Another model asks the question whether IHRL sets additional requirements for the lawfulness of a killing under IHL and whether these requirements can be less stringent than those developed in human rights jurisprudence in and for times of peace.62 Milanovic would cautiously answer yes to both questions. The question whether we can expect militaries to abide by more stringent and humane rules than what is strictly necessary under IHL depends on treaty interpretation. The Israel Supreme Court Targeted Killings decision is an example where the Court held that a capture-before-kill requirement of IHRL was needed because of the degree of control the Israeli military exercises over the occupied territories.63 This is the preferable approach according to Milanovic because it shows a reflection of the object and purpose of IHL and IHRL treaties in their best light, while at the same time reflecting the demands of universality of human rights and practical considerations of effectiveness.

The question remains: how far should IHL allow IHRL into its domain without compromising itself?64 During discussion at the symposium, one panellist stated that the international legal community has reached the point in 2013 that the answer the ICJ gave in its 1996 Nuclear Weapons Advisory Opinion is no longer sophisticated enough. In IHRL, killing is a last resort. IHL is actually about killing people in order to win battles and wars and there are cases where the two bodies of law will contradict. The killing of Bin Laden is one prime example. If we assume this killing took place within an IHL conflict, and that he was targetable because of his status (e.g., continuous combat function), he can still be killed. In IHRL this is not the case. Another panellist stated that the lex specialis has always been a rule of interpretation to establish priorities enacted by the same legislator, which is not the case for these two distinct sets of laws. Yet another wondered what the “gaps” were in Marco Milanovic, “When to Kill and When to Capture?”, EJIL: Talk! (6 May 2011), http://www.ejiltalk.org/when-to-kill-and-when-tocapture/.

Ibid.

In his contribution, Milanovic sets out several competing models. The first one is one of separation advocated by the US government in its war on terror. Even if these bodies of law do not exclude each other technically, IHL as a lex specialis rules out IHRL application.

Milanovic believes this view is incorrect because of the derogation clauses found in IHRL treaties, these treaties’ object and purpose and the jurisprudence of the ICJ. A second model advocated by O’Connell takes the following view: 1) terrorism is a crime; 2) crime should be dealt with by law enforcement and so 3) targeted killings are generally illegal as they are not available methods under law enforcement (except in extreme circumstances). (Ibid.) Milanovic also views O’Connell’s model as incorrect as there is no legal barrier between armed conflict and law enforcement and between IHL and law of peace, meaning that IHL will apply whenever its criteria are met.

Ibid.

Ibid.

Ibid. For more on the capture versus kill discussion, see Ryan Goodman, “The Power to Kill or Capture Enemy Combatants”, European Journal of International Law 24 (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213960. Additionally, surrounding this article, there has been rich discussion on legal blogs. See Kenneth Anderson, “Jens Ohlin Posts Response to Ryan Goodman on Paper on Capture over Kill”, Opinio Juris (8 March 2013), http://opiniojuris.org/2013/03/08/jens-ohlin-posts-response-to-ryan-goodman-paper-oncapture-over-kill/ for a summary of various posts and see “Guest Post: Ryan Goodman Responds to Kevin Heller”, Opinio Juris (1 April 2013), http://opiniojuris.org/2013/04/01/guest-post-goodman-responds-to-heller-on-capture-v-kill/.

Ibid.

The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 10 IHL. If they are present, would they be filled with IHRL? These questions and more were analysed and discussed before concluding that more work must be done with the development of the application of IHL and IHRL.

5. A Case Study on Targeted Killings and Drones

5.1 Introduction Against these discussions and theoretical background, this panel looked at a specific and concrete case study on targeted killings and drones.

First of all, it was observed that drones, as a weapons system, are not inherently unlawful: they are not indiscriminate and do not cause unnecessary suffering. In fact, drones could be more precise as they can stay longer in the air surveilling the target and can gather more information before attacking the target. Their accuracy was also mentioned, although this point was also questioned.65 However, their use in specific situations may be unlawful and needs to be considered on a case-by-case basis. The three main problems identified with respect to targeted killings and drones concern 1) the jus ad bellum, 2) the personal dimension (i.e., the person that is being targeted) – again something that has to be considered on a case-by-case basis, and 3) accountability and transparency.66

5.2 Discussion Concerning the topic of the jus ad bellum, the point was made that the US is blurring the lines between the jus ad bellum and the jus in bello when it uses both paradigms at the same time (“we are in an armed conflict and act under self-defence”) without elaborating on the specifics to justify targeted strikes in counter-terrorism operations. It was noted that blurring can lead not only to less clarity for the soldiers (and hence to less mission effectiveness) as the permissiveness of IHL is blurred, but also to a weakening of IHRL norms/less protection.



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