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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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In the context of the jus ad bellum, the topic of imminence (discussed above, see Panel 1 of the symposium or Section 2 of this paper), was again addressed. One panellist, referring to a recent article,67 argued that this concept must be reframed and that the probability of an attack, the scale of a planned attack and the question whether this is the last opportunity to disrupt the attack must be considered. (This “last clear chance doctrine” may temporally not be very close to the actual attack, but may be the last chance to interrupt). A further element in attacking in self-defence for purpose of stopping an attack can be not only the targeting of those responsible but also of those who provide material support essential to the attack, such as the manufacturer of bombs.

On the other hand, the point was made that the US administration uses the concept of imminence as a justification for force, not out of what it perceives to be legal necessity but as a matter of government policy, and that the concept of imminence generally has two parts: an impending attack, and a specific and identifiable attack that is about to happen. The idea of an impending attack (e.g., with regard to weapons of mass destruction) may justify a loosening of the requirement for imminence. But this will not be the situation in many counter-terrorism cases.

The concept of naked self-defence (see again Panel 1 of the symposium or Section 2 of this paper) was revisited and it was generally concluded that this concept is not very useful as it is straddling two things, namely trying to justify the use of force in another country and trying to justify the use of force against a target. The Cf. the report Living Under Drones. Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan, International Human Rights and Conflict Resolution Clinic, Stanford Law School and Global Justice Clinic, New York University School of Law (September 2012) http://livingunderdrones.org/wp-content/uploads/2012/10/Stanford-NYU-LIVING-UNDER-DRONES.pdf, which concluded: “In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling “targeted killing” of terrorists, with minimal downsides or collateral impacts. This narrative is false [original footnote omitted]” (Ibid., p. v.).

Note that also another, less legal problem, was identified, namely that they represent the furthest extension of the individualisation of armed conflict and the epitome of a “remote-controlled” armed conflict. On the other hand, the point was made that drones are perhaps the most personalised form of warfare, as the operator follows the target around for extended periods of time prior to the killing and also sees his/her target dead as a confirmation. Indeed, there are studies showing that drone operators suffer similar psychological problems as ‘ordinary’ soldiers, see e.g., E. Bumiller, “Air Force Drone Operators Report High Levels of Stress”, New York Times (18 December 2011), http://www.nytimes.com/2011/12/19/world/asia/air-force-drone-operators-show-high-levels-of-stress.html?_r=0.

D. Bethlehem, “Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors”, American Journal of International Law 106 (2012), pp. 770-7, http://www.asil.org/pdfs/ajil/Daniel_Bethlehem_Self_Defense_AJIL_ARTICLE.PDF.

ICCT – The Hague Research Paper Jessica Dorsey and Christophe Paulussen 11 consensus was that it should be abandoned. In any case, naked self-defence cannot provide any legal basis to assess questions such as what individual to target, what kinds of weapons to use and so on.

When discussing the topic of personal dimension, the so-called “kill lists”, which have caused deep concern in the media, were addressed. Nevertheless, from an IHL point of view, such lists, it was argued, are not necessarily problematic (that is: provided it is agreed that IHL is applicable, for instance in Afghanistan). In fact, IHL even requires such individual tests to be conducted in order to ensure adherence to IHL and target only those directly participating in combat. The main problem is of course that this is the case when IHL applies (in the case of an armed conflict) and that in many targeting situations, the US may not be engaged in an armed conflict.

It was stressed that sometimes, the wrong questions are asked or answers are not found in the right contexts. According to one panellist, there is a need to clarify what the real problems are. Within IHL, this means identifying an armed conflict in the first place. However, IHL does not apply to many drone strikes. If IHL does not apply, the question is “what does”? In such situations, resorting to IHRL has often been defended. It was stressed that IHRL does allow for the lethal use of force albeit with more red-tape. There needs to be clearer reasons and planning processes involved, but in extreme situations, IHRL does not prohibit shoot-to-kill, see, for instance the McCann case.68 Does it exclude situations where other people may get killed? While the IHRL test is stricter than the IHL test, this is of course still possible.

When a person from the audience asked how IHRL is applicable when drone strikes occur outside a state’s jurisdiction, a panellist responded with another question: could it be that no law is applicable? If the basic principles of IHL do not apply, other paradigms such as law enforcement or IHRL need to be used: it cannot be that there is a black hole here, that no law can be applied. Another panellist noted that the idea that killing from a distance is not regulated by IHRL (see e.g., the Banković case, where it was decided that the rights of the European Convention on Human Rights are in principle territory-based)69 is wrong and that it only invites people to do exactly that: killing from a distance. According to this panellist, there is a big problem with basing applicability of IHRL to the distance between the attacker and the victim. It is also important to consider the interplay between the two. One needs a contextual approach here. In this panellist’s view, IHRL carries more weight the further one goes away from the battlefield. There is a definite need to explore the interplay between IHRL and IHL.70 Finally, as to accountability and transparency, one panellist talked about transparency in the US context and noted that the US determined 11 years ago that the law enforcement framework was no longer adequate.





However, it was never analysed or asked why this was the case. According to this panellist, the US is currently “seduced” (in the words of Robert Grenier, the former head of the CIA’s Counterterrorism Center) by drones, which are creating more enemies than killing them.71 As to the involvement of CIA operatives in drone attacks, it was remarked that those within that organisation who carry out targeted killings have sometimes been termed “unlawful combatants”.72 Whereas this is incorrect73 – there is in principle no problem with the CIA targeting See ECtHR (Grand Chamber), Case of McCann and Others v. The United Kingdom, Application no. 18984/91, Judgment (27 September 1995).

See ECtHR (Grand Chamber), “Decision as to the Admissibility of Application No. 52207/99 by Vlastimir and Borka Banković, Živana Stojanović, Mirjana Stoimenovski, Dragana Joksimović and Dragan Suković against Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom” (12 December 2001), para. 61: “The Court is of the view (…) that Article 1 of the Convention [“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”] must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case”.

In this context, a question was asked from the audience whether the Declaration of Turku was a possible starting point for addressing the limbo between IHL and IHRL. However, it was remarked that this declaration is too general and impossible to operationalise. See Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, Commission on Human Rights, 51ste Sess., Provisional Agenda Item 19, at 4, U.N. Doc.

E/CN.4/1995/116 (1995) (Declaration of Turku), http://www1.umn.edu/humanrts/instree/1990b.htm.

See Paul Harris, “Drone attacks create terrorist safe havens, warns former CIA official”, The Guardian (5 June 2012), http://www.guardian.co.uk/world/2012/jun/05/al-qaida-drone-attacks-too-broad. See also n. 66 xx (and its reference to the Living Under Drones report).

See, e.g., Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: A Case Study of Pakistan 2004-2009”, Notre Dame Law School, Legal Studies Research Paper 09-43 (July 2010), p. 22.

See for this controversy more generally P. Alston, Report of the Special Rapporteur (28 May 2010), para. 70 and “U.S. House of Representatives. Committee on Oversight and Government Reform. Subcommittee on National Security and Foreign Affairs. Subcommittee Hearing: “Drones II”, Wednesday, April 28, 2010. Rayburn House Office Building. Written Testimony Submitted By Kenneth Anderson. April 26, 2010”, paras. 16-36, The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism 12 individuals – this DPH by civilians can have consequences, such as the fact that there is no immunity from prosecution under domestic law and that they themselves may be targeted and killed.74 For this panellist, the covert nature of the operations was especially problematic.75 Some judicial bodies in the US have acknowledged that there are problematic issues with regards to the limits of power of the government to, on the one hand, acknowledge targeted killings but not to disclose information on the other. Basically, the issue of drones, according to this panellist, boils down to a “trust us” approach by the government. However, it was argued that calls for more information and transparency as well as investigations to ensure clarity are justified.

With regards to transparency, another speaker pointed out that it is often claimed that mainly senior alQaeda leaders are targeted, although in practice it appears that most are low-level suspected militants who are involved in insurgencies against their own governments rather than against the US or its allies.76 Moreover, in Pakistan and Yemen, the US frequently calls victims of targeted killings “combatants” unless there is clear evidence after the fact that a victim was not a combatant. Such investigations, however, are rarely conducted.

The investigation point was also taken up by another panellist, noting the apparent impunity and lack of oversight and accountability in drone activity. One of the biggest problems is of course that there is not much information from the ground and that estimates about civilian casualties vary. If there is no information, then how can investigations be triggered? It was argued that if the US conducted clear investigations into the bigger cases of targeted killings, there would be less controversy in the media and less involvement of or pressure from IHRL bodies.

Another panellist noted, however, that it is very difficult to investigate incidents in a place like Pakistan where the US does not have control, and that in other countries such as Afghanistan, there have arguably even been artificial inflations of civilian casualties by other victims dropped at the scene after the attack.

It was wondered, while agreeing that the difficult reality of such investigations on the ground must be taken into account, how there are indeed so many inconsistencies by different parties in estimating civilian deaths caused by drone strikes. This speaker noted that there is a need to consider whose responsibility and whose burdens of proof such investigations are.77

6. Law Enforcement Approach in Counter-Terrorism

6.1 Introduction In the previous panel, the link with the law enforcement approach to countering terrorism was briefly made.

Although this conference had a focus on situations of armed conflict, this panel took a different approach and looked at countering non-state actors within the law enforcement paradigm. Can terrorism be effectively countered via the normal peacetime procedures of arresting, detaining and prosecuting suspects?

6.2 Discussion It was remarked that prior to 9/11, the law enforcement approach was the prominent mode for counterterrorism operations in the US. After 9/11, the military paradigm took over, but the law enforcement paradigm continued to loom in the background. 9/11 gave rise to reforms, most notably surveillance laws, to aid the intelligence community to anticipate acts of terrorism (think of the Patriot Act). However, between 9/11 and the http://democrats.oversight.house.gov/images/stories/subcommittees/NS_Subcommittee/4.28.10_Drones_II/Anderson_Statement.pdf.

See also ‘Written Testimony of Hina Shamsi, Senior Advisor to the Project on Extrajudicial Executions, Center for Human Rights and Global Justice, New York University School of Law. Before the U.S. House of Representatives Committee on Oversight and Government Reform, Subcommittee on National Security and Foreign Affairs. Hearing on “Rise of the Drones II: Examining the Legality of Unmanned Targeting” (April 28, 2010), http://democrats.oversight.house.gov/images/stories/subcommittees/NS_Subcommittee/4.28.10_Drones_II/Shamsi_Statement_for_the_ Record.pdf; P. Alston, Report of the Special Rapporteur (28 May 2010), para. 71.

Indeed, states may use intelligence operatives for such operations as to shield them from IHL and IHRL transparency and accountability requirements. P. Alston, Report of the Special Rapporteur (28 May 2010), para. 73.

See also Living Under Drones. Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan, International Human Rights and Conflict Resolution Clinic, Stanford Law School and Global Justice Clinic, New York University School of Law (September 2012), p. 31, http://livingunderdrones.org/wp-content/uploads/2012/10/Stanford-NYU-LIVING-UNDER-DRONES.pdf.



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