Legality of counterterrorism raids by Special Forces in

International Law: with reference to actions by Joint

Special Operations Command

Introduction

Joint Special Operations Command (JSOC) is a US and allied

commando unit, famously killing Osama Bin Laden. It leads a secret
global war against al-Qaeda by capturing and/or killing members of the
terrorist network, and is a major part of the Obama administrations
counterterrorism strategy. 1 This essay focuses on these extraterritorial
counterterror raids, where commando teams are transported to a foreign
country, gain entry to targeted premises and capture or kill the target.
JSOC has operated in Somalia, Algeria, the Philippines, Indonesia,
Pakistan, Thailand, Mali, Yemen, Colombia, Peru, various European and
Central Asian Countries, as well as Iraq and Afghanistan. However this
essay focuses on raids unconnected to the Iraq/Afghanistan wars. 2 This
essay looks at: how raids are classified as armed conflicts; the legality of
using of force in counterterror raids, including self-defence and
agreement/acquiescence of the territorial State; whether terrorists are
legal targets; the legality of targeted killing/capture under International
1
2

J. Scahill, Dirty Wars (London: Serpents Tail, 2013) 243

n.1 above, 183

Humanitarian Law (IHL); jurisdictional issues in relation to International

Human Rights Law (IHRL); deprivations of rights to life and liberty;
applicability of derogations; how IHL and IHRL work together in this
context. Though JSOC has engaged in targeted killing, it is not solely an
assassination programme, 84-86% of raids capture targets peacefully.3
JSOC

has

outsourced

some

activities

to

private

military

contractors/mercenaries; however that is outside the remit of this essay 4

Qualification as an Armed Conflict

For IHL to apply to counterterrorism raids, an armed conflict must

exist.5 The War on Terror is not a global war in state practice, 6 or law.7
Thus, JSOC raids are not part of a single conflict. Though some
counterterror raids may be extensions of the Iraq/Afghanistan wars (for
example, the Bin Laden raid),8 this essay is not focused on that issue.
According to the ICTY, counterterror raids may constitute part of an
armed conflict, or an armed conflict in itself:

C. Finkelstein, J. Ohlin, A. Altman,Targeted Killings: Law and Morality in and Asymmetric

World (Oxford: OUP, 2012) 368
4
ln.1 above, 178, 192
5
N. Melzer, Targeted Killing in International Law (New York: OUP, 2008) 394
6
N. Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford: OUP, 2010),
106-107
7
R. Otto, Targeted Killings and International Law (Heidelberg: Springer, 2010) 485
8
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, 143

An armed conflict exists whenever there is a resort to armed

force between States or protracted armed violence between
governmental authorities and organised armed groups [IHL]
applies for the initiation of such armed conflicts and extends
beyond the cessation of hostilities until a general conclusion of
peace is reached; or a peaceful settlement is achieved.9

Thus, any inter-State force can trigger an international armed conflict,

and applicability of IHL.10 A counterterror raid could, therefore constitute
an international armed conflict until the territorial infraction ends, thus
reaching peace. Situations of sufficiently intense and protracted violence
between identifiable groups, not of inter-State nature can be classed as
non-international armed conflicts. Though counterterror raids may be
performed within existing conflicts, as standalone extraterritorial
operations, they may not be protracted, thus cannot be a conflict in
itself; intensity alone will not breach the threshold. However, if cooperating with the territorial State, the operating State would be assisting
in the combatting terrorism in a non-international armed conflict.
Therefore, the law of non-international armed conflict would apply to
counterterror raids performed whilst co-operating with the territorial
State.
9

ICTY, The Prosecutor v. Dusko Tadic, (Interlocutory Appeal), 2 October 1995, 70

n.5 above, 395

10

Use of Force

Art. 2(4) of the UN charter prohibits use of force extraterritorially:

All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
Therefore, a lawful use of force must either, not contravene this
article, for example on the High Seas (which JSOC has been involved
in),11 or with the consent, invitation or acquiescence of the territorial
State. Or force may be exercised under the self-defence exemption. 12
Following Operation Yonatan, where Israeli commandos rescued
Israeli hostages from Uganda, there were discussions whether
temporary territorial incursions directed at non-state actors, were
sufficient to breach the integrity or independence of Uganda, therefore
breaching Art.2(4). States decided such temporary incursions would
breach Art.2(4).13 Therefore, States must justify Art.2(4) breaches to be
lawful actions.
Force must also be necessary and proportionate; therefore
diplomacy should precede force in combatting terrorists. As non-state
actors do not have ambassadors, there can be no diplomatic dialogue.
11
12
13

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,

despite targeting terrorists,

due to the illegal territorial

infringement.17 If raids are carried out by co-operating with the territorial

14

n.6 above, 46-47

UN Security Council Resolution 1373 (2001)
16
K. Trapp, The Use of Force against Terrorists: A Reply to Christian J. Tams, 2012,
European Journal of International Law, Vol.20(4), 1049-1055, 1053
17
Common Art.2, Geneva Conventions; 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-state-groupsinternational-or-non-international/> (Accessed on 22 April 2014)
15

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

Legally resorting to force on the pretext of self-defence, without

territorial State co-operation must be a legitimate act of self-defence,
meaning actions must be necessary and proportionate to protect either
the State or nationals. Grounds of self-defence to protect nationals
18

n.9 above, 145-146

ln.1 above, 183; D. Walsh, Osama bin Laden mission agreed in secret 10 years ago by
US and Pakistan The Guardian, 9 May 2011
20
n.6 above, 72; n.1 above, 215-216
19

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

n.6 above, 29-30

n.6 above, 43-46
23
n.6 above, 66
24
Advisory Opinion on the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, ICJ, 2004, 139
25
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic
of Congo v. Uganda) ICJ, 2005, 146-147
26
R.Y. Jennings, The Caroline and McLeod Cases, AJIL, 1938, Vol. 32(1), 82-99
22

Self-defence may be used to lawfully prevent an imminent action that

is practically unavoidable otherwise. Anticipatory self-defence is legal,
but pre-emptive self-defence, is not. 27 Counterterror raids could be
carried out to prevent an imminent occurrence, but not to pre-empt
attacks which may never happen.
In terms self-defence against al-Qaeda affiliates, who did not conduct
an armed attack against the US, the Taliban could be targeted after
aligning with Al-Qaeda in forcibly opposing the US. Thus, groups who
align themselves in opposition to self-defence actions may be legally
targeted in counterterror raids, if diplomacy fails with relevant territorial
States.28 This could arguably legitimise actions against al-Qaeda
affiliates, such as Al-Qaeda in the Arab Peninsula, Al-Qaeda in Islamic
Maghreb, Al-Shabaab, Islamic emirate of the Caucasus, Al-Nusra, and
Boko Haram.29 Thus, groups operationally aligned with the target of selfdefence actions could be legitimately targeted as part of that selfdefence, and counterterror raids could be conducted against them.
However whether Al-Nusra operating solely in Syria, for example could
be targeted as an extension of US self-defence is questionable, as it is
not directly threatening the US.
27

Lord Goldsmith, UK Attorney-General, House of Lords, 21 April 2004.

n.6 above, 67
29
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);
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-south-asia-13318372> (Accessed on 14
April 2014)
28

Are there emerging precedents?

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

Applicability of International Humanitarian Law

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

Can Terrorists be legally targeted individually?

In an international armed conflict, terrorists are civilians, but may

be targeted whilst members of a terrorist organisation and taking direct
part in hostilities, they can be targeted for such time as they are
continually engaging in attacks for that organisation. 34

In a non-

international armed conflict, terrorists can be targeted if they join a terror

organisation and directly participate in combat, they may be targeted
until their membership of the organisation ceases, by virtue of
continuous combat function.35 Thus, raids constituting an international
armed conflict between victim and territorial States can only target
terrorists while they continually engage in attacks. In a non-international
armed conflict, terrorists denying themselves civilian protections may be
targeted whilst they are a member of a terrorist group by virtue of
continuous combat function.

36

Protected persons in armed conflict, i.e.

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

n.5 above, 400

n.6 above, 162; Melzern.5 above, 278
n25 above, 995
n.20 above, 40, 60
n.5 above, 397-398

11

To be proportionate, there must be as little collateral damage to

civilians as possible.

Higher value targets justify larger degrees of

collateral, for example decapitation strikes targeting Saddam Hussein

were legal, despite killing many civilians. 42 Due to differing values of
individual targets, raids cannot be proportionate in general. Thus, the
proportionality of each counterterror raid must be made on a case-bycase basis weighing military advantage with collateral.
If during a targeted killing raid, a target attempts to surrender or is
hors de combat, and killed anyway, this would be denial of quarter, a
serious violation of the laws and customs of war.43 The ICRC has stated
that there should at least be an attempt to detain targeted individuals. 44
Therefore, though individual targeting is lawful under IHL, where
possible targets should be detained and brought to trial, rather than
killed.45
Also, the use of undercover commandos could result in perfidy. By
posing as civilians, this jeopardises the protection of civilians. Thus,
commandos should be in full uniform, or reveal themselves before
engaging in combat. 46

42

N. Grief, International Humanitarian and Criminal Law in P. Shiner and A. Williams

(eds.), The Iraq War and International Law (Padstow: Hart Publishing, 2008) 102
43
Art.8 (2)(b),(e), Rome Stature of the International Criminal Court; n.5 above, 411-413
44
n.25 above, 77-82; Lubelln.6 above, 161
45
n.20 above, 40
46
n.5 above, 413-415; Lubelln.6 above, 160-164

12

Applicability of International Human Rights Law

Jurisdiction issues

Some argue that extraterritorial counterterror raids are not armed

conflicts, and IHL would not apply, however IHRL would apply, and
where there is armed conflict, would apply simultaneously.47 IHRL
applies extraterritorially to State agents; the State is responsible for
ensuring its representatives abide by it. Also, ICCPR rights and
customary rights apply to everybody universally.48 Regional treaties also
apply extraterritorially; calan49 and Alejandre50 state regional treaties
apply to parties extraterritorially, overturning Bankovi.51 In relation to
counterterror raids, States can claim jurisdiction on grounds of nationality
(as the commandos and individuals being protected are nationals), and
under the protective principle (where there are issues of State security).
Though passive personality may have been relevant to drone killings of
US citizens, this is outside this essays remit. 52 Additionally, international
47

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

criminal jurisdiction would be relevant if commandos commit war

crimes.53
In calan, where a detainee was extraterritorially under the effective
control of the Turkish security forces, he was within Turkish
jurisdiction.54 Therefore States have human rights obligations toward
individuals within its extraterritorial jurisdiction. 55 Thus, individuals
captured in counterterror raids, are owed human rights protections by
the operating State. This applies whether commando actions, and
detention are lawful or not, as stated in Issa.56 In addition, the State is
responsible for any extraterritorial human rights breaches. 57 However,
this does not include every right. State agents acting extraterritorially
with temporal jurisdiction, need not ensure detainees could join trade
unions, for example. The rights to be protected are those acutely
relevant to the precise circumstances of the individual at that time, such
as right to liberty and right to life, as stated in Ilacu.58 It may be enough
that States do not take active steps towards breaching rights, as started
in the Wall case relating to torture.59 Thus, as soon as individuals are
captured in counterterror raids, they are under the effective control and

53

n.6 above, 208-209

n.49 above, 91
55
n.6 above, 218-219
56
Issa v Turkey (App. No. 31821/96) 16 November 2004, 71
57
Lopez v. Uruguay, Comm no 52/1979, UN Doc CCPR/C/OP/1 (1984), 12; Casariego v.
Uruguay, Comm no 56/1979, UN Doc CCPR/C/OP/1 (1984), 10
58
n.6 above, 227-231; Ilacu v. Moldova and Russia (App. No. 48787/99) 8 July 2004, 333
59
n.24 above, 112
54

14

therefore jurisdiction of the operating State, which is obligated to protect

the human rights of said individual relevant at that time.

Use of lethal force under International Human Rights Law

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

Deprivation of life shall not be regarded as inflicted in

contravention of this Article when it results from the use of force
which is no more than absolutely necessary: a) in defence of
any person from unlawful violence; (b) in order to effect a lawful
arrest or to prevent the escape of a person lawfully detained.

Thus, lethal force is proportionate only where strictly unavoidable for

the protection of human life from a real threat of unlawful violence. 66In
counterterrorism, the threat posed by escape/non-arrest of targets
justifies potentially lethal force due to the threat they pose through
terrorism. To be proportionate, each operation must be aimed at
preventing, or stopping a concrete terrorist attack, and could reasonably
expect to prevent or stop such an attack.67 In a counterterror raid,
proportionate use of lethal force can only be used to preserve life, by
preventing a concrete future terrorist attack, or protecting an individual.
For lethal force to be necessary it must be the only option left,
having exhausted all non-lethal means, incapacitation or capture must
be insufficient to prevent further death. 68 There must also be precautions
taken to ensure lethal force is not used unless absolutely necessary, as
shooters cannot be absolved by superior orders. Therefore any
decisions to use lethal force must be constantly reviewed and
66
67
68

n.5 above, 232; n.6 above, 173

McCann v UK (App. No.18984/91) 27 September 1995
n.60 above, 362; Melzern.5 above, 228

16

communicated to commandos. Commandos must warn of intentions to

use lethal force, in a uniform, to allow for surrender; unless warnings
would be inappropriate for example confrontation with suicide
bombers.69 Thus, for lethal force in a CT raid to be necessary, it must be
the only option left to protect life, and constantly under review.

Deprivation of liberty under International Human Rights Law

In terms of capture operations, those individuals are deprived of

their liberty, whether detained lawfully or unlawfully. Though many are
legally deprived of the right to liberty, for example lawful arrest, arbitrary
detention is a breach of the ICCPR, African, American and European
treaties,70 and customary international law.71 Thus, all capture raids must
have a lawful reason to deprive the target of their liberty to avoid being
extraterritorial extrajudicial abductions, and potentially arbitrary detention
contravening the right to liberty.72
For a deprivation of liberty to be lawful, it must be in accordance with
domestic and international law. Therefore, should an arrest take place

69

n.5 above, 235-236

Art. 9, International Convention on Civil and Political Rights(ICCPR); Art. 7, American
Convention on Human Rights(ACHR); Art. 6, African Charter on Human and Political
Rights(ACHPR); Art. 5, European Convention on Human Rights(ECHR)
71
UN Human Rights Committee, General Comment 24 (52), UN Doc
CCPR/C/21/Rev.1/Add.6 (1994), 8
72
R. Higgins, Problems& Process: International Law and How We Use it (Oxford: OUP,
1994) 70
70

17

breaching IHL or IHRL, the deprivation of liberty would be unlawful. 73

Indeed, the UN Human Rights Committee found the arrest and rendition
of a Russian and Georgian citizen in Azerbaijan, by Georgian agents to
be unlawful as the operation was not carried out with the consent of the
Azerbaijani government.74 Thus, counterterror raids must first be lawful
in terms of non-violation of sovereignty, and IHRL, if a domestic arrest
warrant is obtained, an extraterritorial arrest is equal to a domestic
arrest, apart from location.75 To be legal domestically, it must at minimum
avoid: disproportionate use of force; ill-treatment; denial of habeas
corpus rights; inability to appeal court decisions, potential illegality would
be evaluated on a case-by-case basis.76 Should detentions be secret,
they run the risk of being qualified as a disappearance, which are
prohibited.77 Some raids carried out by JSOC have been performed
without territorial State knowledge, thus the territorial infringement and
therefore detention may be illegal, 78 along with illegal disappearances,
and interrogations including torture, however this essay is focused on
the raids themselves.79

Derogations of rights
73

n.6 above, 184

Domukovsky and others v. Georgia, Comm no 626/1995 CCPR/C/62/D/(1995)
75
n.6 above, 185
76
n.6 above, 185-186
77
Art.1 and Art.2, International Convention for the Protection of All Persons from Enforced
Disappearance
78
n.1 above, 237
79
n.1 above 147-161
74

18

Though the right to life cannot be derogated from, the right to

liberty can be.80 Capture in breach of the right to liberty could still be
legal if the acting State lawfully derogates from right to liberty.
Derogations are particularly relevant when a civilian is captured because
they have information on targets, or whose freedom is used as leverage
during another detainees interrogation. 81 To be lawful under the ICCPR,
and European and American conventions, derogations must be: allowed
under the relevant charter; in the presence of a serious public
emergency; strictly required by the exigencies of the situation; 82 and the
State must fulfil procedural requirements to notify of derogations. 83
War qualifies as a serious emergency under European and
American conventions, and qualifies as a threat to the life of the nation
under the ICCPR. 84 However, single acts of terrorism may not qualify as
an emergency. The exigencies of the situation, depend upon duration,
geographical coverage and the material scope of the state of
emergency.85 For procedural requirements, the UK (in relation to
detaining terrorists pending deportation) and Israel have both notified the
UN of their derogations from the right to liberty in order to combat
80

Art.4, Art.6, Art.9, ICCPR

n.1 above, 153-153
82
Art.4, ICCPR; Art.15, ECHR; Art.27, ACHR
83
n.6 above, 188-189
84
Art.4, ICCPR; Art.15, ECHR; Art.27, ACHR; Lubelln.6 above,,188-189
85
UN Human Rights Committee, General Comment no 29, States of Emergency (Article 4)
UN Doc CCPR/C/21/Rev.1/Add.11 (2001), 4
81

19

terrorism, however the US has not. 86 Thus, JSOC commandos cannot

derogate from the right to liberty in counterterror raids, unless in an
armed conflict.
The ICCPR does not rule out the possibility of administrative
detention by executive decision, though it is unclear whether derogation
is necessary.87 The ECHR, however does not allow administrative
detention, thus UK commandos could not detain by administrative
decision.
Even following derogation, not all deprivations are legal; actions must
still be necessary and proportionate. Therefore arbitrary detention would
still be unlawful, as there is no situation where detaining random people
would be necessary or proportionate.88

Parallel applicability of International Humanitarian Law and

International Human Rights Law

The parallel applicability in wartime of IHL and IHRL can cause

difficulties. The most favoured model for harmonising IHL and IHRL is
the conflict resolution model, where the law most specific to the situation
is used.89 For example, IHL is more developed in lethal situations, whilst
86

n.6 above, 189, n126

n.6 above, 189-190
88
n.86 above, 4; n.6 above, 191
89
O. Hathaway, R. Crootof, P. Levitz, H. Nix, W. Perdue, C. Purvis, J. Spiegel, Which Law
Governs Armed Conflict? The Relationship Between International Humanitarian Law and
87

20

detention situations are more developed in IHRL. 90This is reinforced by

the ICJ, which stated in the Nuclear Weapons case that unless
derogated from, the ICCPR applies in war, and as the right to life cannot
be derogated from, whether a killing is an arbitrary deprivation can only
be decided by IHL, due to being lex specialis.91 Though there may be
conflicts between each body of law, both ultimately intend to preserve
life, if there is a choice between kill and capture, both bodies of law
would favour capture. Therefore both IHL and IHRL should be complied
with as much as possible, and any conflict should be decided using the
body of law most developed. 92 The only significant divergence is that
under IHL an individual can be targeted for death from the beginning of
an operation, yet under IHRL the legitimacy of lethal force is removed if
there is a possibility to capture. This under IHRL it could technically be
an arbitrary killing, however as the arbitrariness is to be decided under
IHL, the killing would be legal.

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

In conclusion, it has been shown that counterterror raids can form

part of an international armed conflict, and be seen as an international
armed conflict in itself until the territorial infraction ends. As a
counterterror raid of a non-international nature may not be protracted, it
cannot be an armed conflict in itself; though a counterterror raid can be
carried out within an existing non-international armed conflict.
If the operating State is acting without the consent, invitation or
acquiescence of the territorial State, a counterterror raid would qualify as
an illegal territorial incursion, despite the target of the operation being a
non-State actor and the law of international armed conflict would apply
during any raid. If consent, invitation or acquiescence is given, the law of
non-international armed conflict can apply, as the operating State would
be co-operating with the territorial State in combatting terrorism.
A counterterror raid could be used as a method of self-defence, if
force is the last resort. This can lawfully be used to protect nationals and
the State, and can be anticipatory. Actions of hot pursuit would be
illegal, unless performed as individual self-defence by commandos. As to
whether al-Qaeda affiliates can be targeted under the same claim of selfdefence is questionable. In addition, there may be emerging State
practice to not inform the territorial State, and of targeted killing of
terrorists being created.
Operations within an international armed conflict can only target
parties to the conflict; terrorists can be targeted for as long as they take
22

direct participation in hostilities by engaging in attacks for a terrorist

organisation. In a non-international armed conflict, terrorists directly
participating can be targeted, for as long as they are a member of a
terrorist organisation under continuous combat function. Under IHL, a
legitimate target can be the subject of a targeted killing or capture
mission, if it is both necessary and proportionate. However, should the
target of a kill raid surrender, or be hors de combat, commandos are
obligated to capture and bring them to trial where possible. In addition,
using undercover commandos must not become perfidious; they must
reveal uniforms before engaging in combat.
International human rights treaties apply extraterritorially wherever
State jurisdiction resides. In the counterterror context, jurisdiction can be
claimed in relation to nationality, and the protective principle. Captured
individuals are under the jurisdiction of the operating State, and are
owed the human rights relevant to the precise temporal situation.
Any use of lethal force under human rights must be legal under
IHL, and if outside an armed conflict: necessary; proportionate; a
constantly review option of last resort. Capture of individuals must first
have a lawful reason, and be necessary and proportionate. An illegal
territorial infringement would breach the right to liberty, as would:
disproportionate use of force; ill-treatment; denial of habeas corpus;
inability to appeal court decisions. Whether detention is illegal depends
on the merits of the case. The right to liberty could be derogated from in
23

some situations, allowing arrests which normally breach the right to

liberty; however this has not been done. Administrative detention may
allow some breaches of the right to liberty, if it does not require
derogation; the ECHR does not allow administrative detention, so UK
commandos could not detain by executive decision.
Though there are two different legal systems working in parallel,
they essentially say the same thing: counterterror raids should be
legitimate and aim to preserve life. They must be necessary and
proportionate, and should not illegally violate State sovereignty. The
target of the operations must be a legitimate target, whether a
combatant, or directly participating civilian. Where possible, individuals
should be captured and brought to trial, and not killed. However, under
IHL killings are legal if proportionate and a military necessity; under IHRL
lethal force can only be used to protect life, either of commandos
themselves, or protecting civilians from a terrorist attack. The only
significant divergence between the two systems is that under IHL,
targeted killing can be legal, yet under IHRL a legitimate use of lethal
force requires an inability to capture or incapacitate in order to save
lives. Overall a targeted killing would be legal, as IHLs lex specialis
nature would take precedent.
As has been shown, many of the actions of JSOC have been, or
may be illegal. However, such operations can be carried out in a legal

24

way. It would be of benefit to the harmony of the international legal

system if JSOC abided by IHL and IHRL in its operations.

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

United Nations Charter

Cases
International Court of Justice

Case Concerning Armed Activities on the Territory of the Congo

(Democratic Republic of Congo v. Uganda) ICJ, 2005
Case Concerning Military and Paramilitary Activities in and Against
Nicaragua, ICJ, 1986
Advisory Opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, ICJ, 2004
Advisory Opinion on the Legality of the threat or Use of Nuclear
Weapons, 8 July 1996, ICJ

International Criminal Tribunal for the former Yugoslavia

ICTY, The Prosecutor v. Dusko Tadic, (Interlocutory Appeal), 2 October

1995

European Court of Human Rights

Bankovi and other v Belgium and others (App. No. 52207/99) 12

December 2001
Ilacu v. Moldova and Russia (App. No. 48787/99) 8 July 2004
Isayeva v Russia (App. No. 57950/33) 24 February 2005, 180
Issa v Turkey (App. No. 31821/96) 16 November 2004
McCann v UK (App. No.18984/91) 27 September 1995
calan v. Turkey (App. No. 46221/99) 12 May 2005

26

Inter-American Court of Human Rights

Alejandre v. Republic of Cuba, Report NO. 86/99, Case 11.589, 29

September 1999

Other courts

Israel High Court of Justice, The Public Committee against Torture in

Israel v Israel, HCJ 769/02, 11 December 2005

UN Human Rights Committee

Casariego v. Uruguay, Comm no 56/1979, UN Doc CCPR/C/OP/1
(1984)
Domukovsky and others v. Georgia, Comm no 626/1995 CCPR/C/62/D/
(1995)
General Comment 24 (52), UN Doc CCPR/C/21/Rev.1/Add.6 (1994)
General Comment 29, States of Emergency (Article 4) UN Doc
CCPR/C/21/Rev.1/Add.11 (2001)
Lopez v. Uruguay, Comm no 52/1979, UN Doc CCPR/C/OP/1 (1984)
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 (1993)

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

Between International Humanitarian Law and International Human

Rights Law Minnesota Law Review, 2012, Vol. 96(6), 1883-1943
R. Higgins, Problems& Process: International Law and How We Use it
(Oxford: OUP, 1994)
N. Lubell, Extraterritorial Use of Force Against Non-State Actors
(Oxford: OUP, 2010)
N. Melzer, Targeted Killing in International Law (New York: OUP, 2008)
R. Otto, Targeted Killings and International Law (Heidelberg: Springer,
2010)
J. Scahill, Dirty Wars (London: Serpents Tail, 2013)
P. Shiner and A. Williams (eds.), The Iraq War and International Law
(Padstow: Hart Publishing, 2008)

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