Professional Documents
Culture Documents
Introduction
has
outsourced
some
activities
to
private
military
10
Use of Force
n.1 270-278
Art.51, UN Charter
n.6 above, 27
Thus, the territorial State which non-state actors operate from can be
requested/demanded to use its jurisdiction to prevent further attacks. 14 If
the territorial State is unable to deal with the terrorists alone, they can
co-operate with the victim State in combating them, resulting in the
consent, invitation or acquiescence of the territorial State for the
operating State to act within its territory. If there is co-operation between
victim and territorial State, extraterritorial counterterror raids are a legal
use of force.
Should the territorial State be unwilling to act against terrorists, or
co-operate (in contravention of its international responsibilities), 15 the
Victim State could only use force on grounds of self-defence, as a lawful
exception.16 Therefore, the use of counterterrorism raids could be a legal
use of force in circumstances where the Victim State is acting in selfdefence and has no other method of preventing terrorist attacks.
If the use of force is without territorial State co-operation on selfdefence grounds, the actions would be classed as an international
armed conflict, with the operating State acting against the territorial
State,
State against terrorists, the raid would be governed by the law of noninternational armed conflict.18 However, some of the States JSOC
operates in have not publically declared consent, invitation or
acquiescence to the US to carry out counterterror raids (though there
may be secret co-operation).19 Thus, if acting on grounds of self-defence
without consent, invitation or acquiescence of the territorial State, law of
international armed conflict applies to counterterror raids, if acting with
co-operation, the law of non-international armed conflict apples.
Hot pursuit, cannot legitimise cross-border use of force, unless
commandos are acting in self-defence of an individual. Hot pursuit only
applies to maritime actions.20 Commandos could only chase terrorists
cross-border to use force against them, if acting in individual selfdefence of themselves, or others.
Self-Defence
against terrorists have been used by the US, Iran, Ethiopia, Israel, and
Turkey.21 In the case of terrorists who intend to continue terrorism, using
force to halt such actions is necessary if there is no other preventative
alternative, such as freezing assets. 22 To be proportionate, actions need
not be measured against the original attack (or forthcoming attack if
acting in anticipation) but, must be of a means necessary to achieve an
end to danger.23 Therefore, counterterror raids can only be legitimate
self-defence if peaceful measures have failed to stop terrorism, and are
the minimum force necessary to end the terrorist threat.
As to whether terrorists can produce an armed attack, and thus be
targeted in legitimate self-defence actions, is questionable. The ICJ
infers in the Wall,24 and DRC v Uganda25 cases that armed attacks can
only be attributed to non-state actors if on a States behalf. However,
State practice recognises that terrorists can commit armed attacks since
the Caroline Case in 1837,26 where Britain attacked the Caroline, an
American ship supporting Canadian rebels. As terrorists can commit an
armed attack, they can be subject to retaliation, and thereby subject to
self-defence operations. Thus, counterterror raids can be justified
against terrorists as self-defence actions.
21
State practice may be creating a new precedent of acting in selfdefence without informing the territorial State. The US did not inform
Pakistan of its action against Bin Laden, nor does Israel inform
Palestinian authorities of its operations, to prevent leaks thereby
affecting a successful mission outcome. This could form new State
Practice and potentially custom. 30 Further to this, the House of
Commons Library has indicated that extraterritorial terrorist targeted
killing itself may be emerging State practice, and eventually lawful
custom.31
30
Israel High Court of Justice, The Public Committee against Torture in Israel v Israel, HCJ
769/02, 11 December 2005, 50
31
A. Thorp, Killing of Osama bin Laden: has justice been done? House of Commons
Library SN/IA/5967 16 May 2011
Firstly, raids must use legal means and methods of warfare, and
abide by the laws and customs of war.32 Though expanding bullets have
been used in counterterror raids, it is not relevant to this essay. 33
In a non-
36
32
n.6 above,159-160
n.5 above, 415-418
34
n.20 above, 39
35
N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities
under International Humanitarian Law International Review of the Red Cross, Vol.90,
No.872, 2008, 991-1047, 995
36
n.20 above, 31
33
10
medical and religious personnel, ICRC and UN staff, can lose their
protected status in the same way as civilians, if they directly participate
in hostilities.37
IHL frameworks allow the targeting of individual non-protected
persons, if a legitimate objective, a proportionate action, and a military
necessity. 38 Individually targeting directly participating civilians, is legal in
a non-international armed conflict,39 and in international armed conflicts,
if no less harmful method, such as arrest, is available. 40 Therefore, under
IHL, a terrorist may be targeted for killing, or capture in counterterror
raids if a proportionate military necessity.
For individual targeting to be a military necessity it must be the
kind and degree of force necessary to achieve submission of the
adversary with minimum expenditure of time, life and resources, at a
moment when the prospective advantage cannot be gained at another
time through non-forceful means. Therefore, counterterror raids are legal
if they achieve submission of terrorists with minimum loss of time, life
and resources, and such submission could not be gained at another time
with a non-forceful alternative without unreasonably increasing risk to
civilians or commandos.41
37
38
39
40
41
11
42
12
Jurisdiction issues
R. Mahad, Targeting v detention ICRC blog, 8 November 2011. Available at: <
http://intercrossblog.icrc.org/blog/targeting-vs-detention> (Accessed on 24 April 2014)
48
UN Human Rights Committee, Summary record of the 1202nd meeting (second part),
Consideration of reports submitted by States parties under article 40 of the Covenant:
Croatia, Yugoslavia, UN Doc CCPR/C/SR.1202/Add.1, 15 April 1993, 23; Case Concerning
Military and Paramilitary Activities in and Against Nicaragua, ICJ, 1986; Lubelln.6 above,
196, 231-235
49
calan v. Turkey (App. No. 46221/99) 12 May 2005, 91
50
Alejandre v. Republic of Cuba, Report NO. 86/99, Case 11.589, 29 September 1999
51
Bankovi and other v Belgium and others (App. No. 52207/99) 12 December 2001, 80
52
M. Hastings, The Rise of the Killer Drones: How America Goes to War in Secret Rolling
Stone, April 16 2012 < http://www.rollingstone.com/politics/news/the-rise-of-the-killerdrones-how-america-goes-to-war-in-secret-20120416> (Accessed on 23 April 2014)
13
53
14
The ICCPR, along with regional treaties in Africa, Europe, and the
Americas, and UN special-rapporteurs protect the right to life. 60
Situations of killing which do not violate the right to life include: lawful
death penalty; legal killings under IHL; a necessary and proportionate
use of force, where killing was the last option. 61 Any use of force must be
legal under national law, otherwise this would breach of the right to life, 62
and an arbitrary killing may breach jus cogens according to Melzer.63
Therefore, in counterterror raids outside of IHL, killings must be
necessary and proportionate, with lethal force as the final option.
However, when acting outside of IHL, commandos do not become police
despite acting to uphold the law. 64
ECHR Art.2(2) expresses proportionality of lethal force: 65
60
61
62
63
64
65
n.6
n.6
n.5
n.5
n.5
n.5
above,
above,
above,
above,
above,
above,
170
171
225
226
85-99; Isayeva v Russia (App. No. 57950/33) 24 February 2005, 180
232
15
16
69
17
Derogations of rights
73
18
19
20
Conclusion
International Human Rights Law Minnesota Law Review, 2012, Vol. 96(6), 1883-1943,
1942-1943
90
n.6 above, 245-246
91
Advisory Opinion on the Legality of the threat or Use of Nuclear Weapons , 8 July 1996,
ICJ, 25
92
n.90 above, 1942-1943
21
24
Bibliography
International Treaties
African Charter on Human and Peoples rights
American Convention on Human Rights
European Convention on Human Rights
Geneva Conventions I-IV and Additional Protocols I and II
International Convention on Civil and Political Rights
International Convention for the Protection of All Persons from Enforced
Disappearance
Rome Stature of the International Criminal Court
25
Cases
International Court of Justice
26
Other courts
Books
C. Finkelstein, J. Ohlin, A. Altman, Targeted Killings: Law and Morality in
and Asymmetric World (Oxford: OUP, 2012)
O. Hathaway, R. Crootof, P. Levitz, H. Nix, W. Perdue, C. Purvis, J.
Spiegel, Which Law Governs Armed Conflict? The Relationship
27
Journals
R.Y. Jennings, The Caroline and McLeod Cases, AJIL, 1938, Vol. 32(1)
N. Melzer, Interpretive Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law International Review of
the Red Cross, Vol.90, No.872, 2008, 991-1047
K. Trapp, The Use of Force against Terrorists: A Reply to Christian J.
Tams, 2012, European Journal of International Law, Vol.20(4), 10491055
M. Wong, Targeted Killings and the International Legal Framework: With
Particular Reference to the US Operation against Osama Bin Laden
Chinese Journal of International Law, 2012, Vol.11(1), 127-163
Newspaper/Magazine Articles
D. Walsh, Osama bin Laden mission agreed in secret 10 years ago by
US and Pakistan The Guardian, 9 May 2011
28
Websites
D. Akande, Are Extraterritorial Armed Conflicts with Non-State Groups
International or Non-International?' 18 October 2011, EJIL Blog,
<http://www.ejiltalk.org/are-extraterritorial-armed-conflicts-with-non-stategroups-international-or-non-international/> (Accessed on 22 April 2014)
M. Hastings, The Rise of the Killer Drones: How America Goes to War
in
Secret
Rolling
Stone,
April
16
2012
<
http://www.rollingstone.com/politics/news/the-rise-of-the-killer-droneshow-america-goes-to-war-in-secret-20120416> (Accessed on 23 April
2014)
R. Mahad, Targeting v detention ICRC blog, 8 November 2011.
Available at: < http://intercrossblog.icrc.org/blog/targeting-vs-detention>
(Accessed on 24 April 2014)
P. Sands QC, quoted by A. Lewis, Osama Bin Laden: Legality of killing
questions BBC, 12 May 2011 <http://www.bbc.co.uk/news/world-southasia-13318372> (Accessed on 14 April 2014)
K. Zimmerman, Al-Qaeda and its Affiliates in 2013 Critical Threats, 25
April 2013 <http://www.criticalthreats.org/al-qaeda/al-qaeda-affiliates>
(Accessed on 14 April 2014)
Other
Lord Goldsmith, UK Attorney-General, House of Lords, 21 April 2004.
A. Thorp, Killing of Osama bin Laden: has justice been done? House of
Commons Library SN/IA/5967 16 May 2011
UN Security Resolution 1373 (2001)
29