Abstract
This chapter explores the relationship between international human rights law and international humanitarian law in the targeting of members of armed groups in non-international armed conflicts. It attempts to flesh out points of convergence between these two branches concerning their respective frameworks on the use of lethal force against persons. In this regard, the chapter analyzes the role played by ‘conduct’ and ‘function’ in determining the lawfulness of the use of lethal force in both legal regimes and demonstrates that these are not as far apart on this issue as is generally believed. Hence, by applying the principle of systemic integration, it attempts to use these points of convergence to find a space in human rights law for a quasi-regime of status-based targeting of members of armed groups in non-international armed conflicts. The chapter nonetheless cautions against any exercise of interpretation that overstretches and distorts international human rights law or international humanitarian law. It thus highlights the limits in some circumstances of incorporating the abovementioned status-based regime, as well as guarding against attempts to align both legal branches to the detriment of their object and purpose.
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Notes
- 1.
The right to life is protected by human rights treaties such as: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS 999, entered into force 23 March 1976 (ICCPR), Article 6; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, opened for signature 4 November 1950, Council of Europe, ETS 5, entered into force 3 September 1953 (ECHR), Article 2; African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, Organization of African Unity, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, entered into force 21 October, Article 4; and American Convention on Human Rights, opened for signature 22 November 1969, Organization of American States, entered into force 18 July 1978, Article 4. Furthermore, several soft-law instruments regulate the conduct of law-enforcement officials including the issue of use of force. These instruments include: Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990); United Nations General Assembly (1979); and United Nations Economic and Social Council (1989).
- 2.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (AP I), Articles 48–58; Henckaerts and Doswald-Beck 2005, rules 1–86.
- 3.
ICRC 2013, p 1.
- 4.
Watkin 2004, p 5.
- 5.
Melzer and Gaggioli 2015, p 36.
- 6.
In the wake of terrorist attack in Nice, France, on 14 July 2016, President Holland stepped up airstrikes against ISIS in Iraq and Syria as the author was believed to be linked or inspired by the terrorist group. See Srivastava S (2016) Nice attack: What it means for fight in Syria, Iraq, CNBC, 15 July 2016. http://www.cnbc.com/2016/07/15/nice-attack-what-it-means-for-fight-in-syria-iraq.html. Accessed 24 December 2016.
- 7.
ICRC 2013, p 1 (‘For example, in a non-international armed conflict, when a State is using force against fighters, it may be considered as simultaneously conducting hostilities and maintaining law and order (since fighters are also frequently criminals under domestic law.’). See also Melzer and Gaggioli 2015, p 76.
- 8.
Gaggioli 2013, p 358.
- 9.
Ibid.
- 10.
Ibid.
- 11.
Quénivet 2008, p 344.
- 12.
Melzer and Gaggioli 2015, p 70.
- 13.
- 14.
Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders 1990, state that ‘[l]aw enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury’, Principle 16. For more information on immediacy, see Otto 2012, p 199.
- 15.
Human Rights Council 2014, para 60.
- 16.
Ibid., para 59.
- 17.
Hakimi 2016.
- 18.
Oberleitner 2015, pp 136–137.
- 19.
Lubell 2005, p 746.
- 20.
AP I, above n 2, Article 51.5.b.
- 21.
Melzer 2008, p 101.
- 22.
Instructions for the Government of Armies of the United States in the Field, 24 April 1863, General Orders No. 100 (Lieber Code), Article 14: ‘Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.’
- 23.
- 24.
Corn 2010, p 76.
- 25.
ICRC 2013, p 8. See also Hill-Cawthorne 2014, p 230 (military necessity is ‘a justification for departing from the normally applicable rules.’ Furthermore, Hill-Cawthorne considers that the principle of necessity—on top of its function as a balancing principle with humanitarian considerations—plays a constitutive role in IHL. In that regard, see Hill-Cawthorne 2014, p 232: ‘In other words, it is the underlying state of necessity (which exists by virtue of an international or non-international armed conflict) that is the raison d’être of IHL; it is that state of necessity which explains the non-adherence to many of the normal peacetime rules of law (such as the ordinary domestic law and IHRL with regard to a state’s internal actions, and normal interstate relations with regard to a state’s external actions).’)
- 26.
This statement, however, should be contrasted. Article 52.2 of AP I permits only attacks against objects that offer a definite military advantage according to the circumstances ruling at the time of the attack (emphasis added). Also Articles 51.3 of AP I and 13.3 of Additional Protocol II (AP II) waive protection from civilians ‘unless and for such time as’ they directly participate in hostilities. This is akin to IHRL where the lawfulness of the use of lethal force is judged by the circumstances of each case. However, the military advantage is presumed if the object of the attack was a military target by nature regardless of the imminence of the threat it posed at the time of the attacks. In that sense, the existence of an armed conflict in itself provides an underlying justification for such regime of necessity in targeting. First it should be noted that no similar rule to the one stated in Article 52.2 or Articles 51.3 and 13.3 exists for attacks against fighters or combatants. For example, see Milanovic 2011a, p 119 (‘Both the ICCPR and the ECHR can easily be interpreted as requiring a showing of necessity before any intentional deprivation of life, while, as we have seen, IHL purposefully does not require such a showing in respect of combatants or civilians taking a direct part in hostilities.’)
- 27.
Aughey and Sari 2015, p 93.
- 28.
- 29.
- 30.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J. Reports, p 226 (Nuclear Weapons Case).
- 31.
ILC 2006, pp 34–35.
- 32.
Nancie Prud’homme gives an overview of the different interpretations. See Prud’homme 2007, pp 372–374.
- 33.
Oberleitner 2015, p 89. For example, see ECtHR, Ezelin v France, Judgment, 26 April 1991, Application no. 11800/85, para 35.
- 34.
Milanović 2011a, p 98.
- 35.
- 36.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 U.N.T.S, entered into force 27 January 1980 (VCLT), Article 31.3.c (‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose…3. There shall be taken into account, together with the context:…(c) any relevant rules of international law applicable in the relations between the parties.’).
- 37.
When interpreting the provisions of the ECHR in light of other branches of international law including IHL, the Court cautioned that such interpretation should be done ‘so far as possible’. See ECtHR, Varnava and Others v Turkey, Grand Chamber Judgment, 18 September 2009, Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, para 185. See also ECtHR, Hassan v. United Kingdom, Judgment, 16 September 2014, Application, no. 29750/09 (Hassan v. United Kingdom), para 102. However, the analysis of the Court in that regard was far from satisfactory as will be shown later.
- 38.
Milanović 2011b, p 240.
- 39.
Milanović 2011a, p 119.
- 40.
Milanović discussed the application of this principle by the ICJ in the Nuclear Weapons case with regards to the right to life in international armed conflicts. See Milanović 2011b, p 240. Jean-Marie Henckaerts adheres to such an interpretation of the ‘arbitrariness’ standard in times of armed conflict. See Henckaerts 2008, p 263; Sassòli 2007, p 389.
- 41.
Hampson correctly notes that ‘[i]n some areas, human rights protection may go further than that provided under the law of armed conflicts. Thus, the ECHR’s standard with regard to the level of force used, no more than is absolutely necessary, suggests a more rigorous standard than mere proportionality.’ See Hampson 1992, p 134. For more on the marked difference between necessity in IHL and IHLR, see Ohlin and May 2016, pp 121–139. Also see below footnotes 52 and 53 and accompanying text.
- 42.
Hampson 2008, p 564. See also Heyns et al. 2016, p 821. Similarly, but talking about Article 5 and not Article 2 on the right to life, Justice Leggatt found that ‘[u]nlike Article 9(1) of the ICCPR, however, Article 5(1) of the Convention is much more specific and prohibits arrest or detention “save in the following cases” which are then exhaustively defined. Given the specificity of Article 5, there is little scope for lex specialis to operate as a principle of interpretation.’ See High Court of Justice, Serdar Mohamed v. Ministry of Defence, Judgment, 2 May 2014, Case No: HQ12X03367, para 291.
- 43.
Hassan v. United Kingdom, above n 37, para 106 (emphasis added).
- 44.
- 45.
Fachathaler 2016, pp 352–353.
- 46.
Gaggioli 2013, p 342.
- 47.
Hampson 2015, p 152.
- 48.
Sassòli and Olson 2008, p 612.
- 49.
Tabak 2014. Also, see one of the latest decided cases on use of lethal force against NSAG in a NIAC in 2015: IACtHR, Cruz Sanchez and others v. Peru, Judgment, 17 April 2015, paras 276–279.
- 50.
African Commission on Human and Peoples’ Rights (2015) para 32.
- 51.
‘The State party should revisit its position regarding legal justifications for the use of deadly force through drone attacks. It should: (a) Ensure that any use of armed drones complies fully with its obligations under Article 6 of the Covenant, including, in particular, with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict’. See UN Human Rights Committee 2014, para 9.
- 52.
UN Human Rights Committee 2018, para 64.
- 53.
UN Human Rights Committee 2017, para 67.
- 54.
- 55.
ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Judgment, 24 February 2005, Applications nos. 57947/00, 57948/00 and 57949/00 (Isayeva, Yusupova and Bazayeva v. Russia); and ECtHR, Isayeva v. Russia, Judgment, 24 February 2005, Application no. 57950/00 (Isayeva v. Russia).
- 56.
Some authors contend that the Court has referred, implicitly or unintentionally, on an IHL analysis. Quénivet and Tamura believe that it has referred to IHL. See Quénivet 2008, p 341; Tamura 2011, p 139. In contrast, Otto and Abresch disagree. See Otto 2012, p 422; Abresch 2005, p 736. In fact, in the Isayeva cases the applicants were not families of insurgents killed but those of civilians that were present in areas of hostilities. The Court’s analysis of the right to life of those civilians and not the Chechen fighters might have confused some authors and its use of the terms ‘civilians’ might have led them to believe that the Court used an IHL paradigm and excluded ‘any consideration of the right to life of armed insurgents.’ See Tamura 2011, p 139. See also Quénivet 2008, p 344. Nevertheless, as mentioned before, the Court does not seem to use IHL even ab silencio. According to Abresch, the Court does not appear to use the word civilian as ‘a term of art’ as it has provided the ‘same rule for battles as for arrests, and for civil wars as for riots.’ See Abresch 2005, p 759. Furthermore, the Court did not reason on the basis that Russia was targeting members of NSAGs. Hence, it could not have negated the right to life of individuals whose presence had not been established in the case at hand.
- 57.
Isayeva v. Russia, above n 55, para 191.
- 58.
Isayeva, Yusupova and Bazayeva v. Russia, above n 55, para 178; Isayeva v. Russia, above n 55, para 180.
- 59.
Isayeva, Yusupova and Bazayeva v. Russia, above n 55, para 178.
- 60.
Ibid., paras 178–181.
- 61.
Ibid., paras 181–182.
- 62.
Ibid., para 181.
- 63.
Ibid., para 199. (It should also be noted that the Court did not eventually find that the use of lethal force was lawful. Rather, the Court found, in the subsequent stages of its analysis, that the attack violated Article 2 of the Convention because the operation was not ‘planned and executed’ with the requisite care for the lives of the civilian population.)
- 64.
Ibid.
- 65.
Ibid., para 298.
- 66.
Ibid., paras 305–306.
- 67.
Ibid., para 103.
- 68.
Melzer 2008, p 393.
- 69.
ECtHR, Finogenov and others v Russia, Judgment, 20 December 2011, Application No. 18299/03 and 27311/03, para 220 (emphasis added).
- 70.
Hakimi 2012, pp 1399–1400.
- 71.
McCann and Others v. United Kingdom, above n 13, para 193.
- 72.
Ibid., para 193 (‘[t]he IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members. Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in co-ordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses.’)
- 73.
Ibid., para 193 and paras 202–214.
- 74.
See Watkin 2005, p 147 (‘[a]n individualist approach to targeting highlights the tension that arises between a human rights-based concentration on the individual and the traditional group based concept of the combatant.’)
- 75.
Melzer 2008, p 120 (‘In sum, it appears reasonable to conclude that deprivations of life that would be permissible under Article 2 ECHR could not be viewed as ‘arbitrary’ within the meaning of Article 6 ICCPR, and that deprivations of life permitted by Article 6 ICCPR would not be contrary to Article 2(2) ECHR.’)
- 76.
Melzer 2015, p 308.
- 77.
Sassòli and Olson 2008, p 607.
- 78.
Kleffner 2015, p 439.
- 79.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, adopted 8 June 1977, UNTS 1125 UNTS 609, entered into force 7 December 1978 (AP II), Article 13.
- 80.
Corn 2013, p 59 (‘The integrity of the target legality framework depends on the recognition of opposing belligerent groups in any armed conflict. This recognition facilitates implementation of the principle of distinction by allowing belligerent forces to segregate those they encounter into two distinct groups’). See also Otto 2012, p 239 (‘it would restrict the opposing party – in most cases the government – to fighting against these fighters only when they are actually fighting and create an imbalance between the parties to the conflict.’)
- 81.
Henckaerts and Doswald-Beck 2005, p 17.
- 82.
Melzer 2015, p 312.
- 83.
ICRC 1987, para 4789.
- 84.
Gaggioli 2018, p 910.
- 85.
ICRC 2009. It should be noted that this chapter does not necessarily adopt the position of the Guidance. It is mentioned here as an example of an attempt to identify membership in NSAGs on a primarily conduct basis. In fact, the findings of the Guidance were not uncontroversial, but came under fierce criticisms from scholars. More particularly, the concept of continuous combat function was considered an ‘inequity in the law’, because of the imbalance it creates between State armed forces and NSAGs. In that regard, see Schmitt 2012, p 133.
- 86.
ICRC 2009, p 70.
- 87.
Ibid., p 34.
- 88.
See ibid., p 46 (‘In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)’).
- 89.
Akande 2010, p 187 (emphasis added).
- 90.
Corn 2013, p 59.
- 91.
Doswald-Beck 2006, p 891 (emphasis added).
- 92.
Kleffner 2015, p 435.
- 93.
ICRC 2016, para 534.
- 94.
ICTY, Prosecutor v. Haradinaj et al., Trial Judgment, 3 April 2008, IT-04-84-T, para 64. See also ICTY, The Prosecutor v. Fatmir Limaj et al., Trial Judgment, 30 November 2005, IT-03-66-T, paras 119–122.
- 95.
ICRC 1987, para 1352.
- 96.
Watkin 2005, pp 147–148 (emphasis added).
- 97.
ICRC 2009, p 34.
- 98.
Corn 2013, p 69 (‘Thus, while conduct is the key analytical indicator of status, this does not equate to conduct-based targeting authority—the type of authority utilized to respond to a genuine DPH situation’.)
- 99.
Even when it is established that a person is a lawful target it is not unanimous that the use of lethal force is lawful under IHL when lesser means could have been employed to neutralize the person. See for example Goodman 2013 and ICRC 2009, pp 78–81. However, such position is far from unanimous. For a rebuke of such position see Schmitt 2010. Furthermore, state practice does not seem to support that conclusion.
- 100.
For more on the threshold of NIACs, see Cullen 2010, pp 122–133.
- 101.
See above n 15 and accompanying text.
- 102.
Hampson 2011, p 204.
- 103.
Melzer argues that applying IHRL to armed conflicts situations would not lead to different conclusions than IHL. Also, he states that ‘in identical circumstances, the standard of ‘military necessity’ under IHL corresponds to the standard of ‘absolute necessity’ under human rights law’. See Melzer 2008, pp 392–393. The author disagrees with this finding. The case-law of the ECtHR might have encouraged such findings but doubts remain nevertheless over whether the findings in both branches can be aligned in all circumstances when lethal force is used, especially in situations outside the active battlefield zone. For example, it is highly doubtful that a human rights body would be willing to accept that lethal force can be used against a person recruiting and training for a specific military operation. However, according to the ICRC, such acts amount to direct participation in hostilities under IHL and waives the protection against attack for that person. See ICRC 2009, p 53.
- 104.
Sassòli and Olson 2008, p 613.
- 105.
Ibid.
- 106.
See above n 15 and accompanying text.
- 107.
Sassòli and Olson support the lex specialis position and advocate for a position whereby one of the two branches of the law will be the lex specialis depending on the facts of the case. Nevertheless, the branch that is more general remains applicable in the background. See Sassòli and Olson 2008, p 615 (‘Even where human rights prevail as the lex specialis in the context of armed conflict, humanitarian law remains present in the background and relaxes the human rights requirements of proportionality and warning once an attempt to arrest has been made unsuccessfully or is not feasible. By the same token, where humanitarian law prevails, human rights likewise remain present and require that an inquiry be conducted whenever a person has been deliberately killed.’). On the other hand, Nancie Prud’homme provides an excellent critique of the lex specialis principle. She advocates for a harmonization theory between IHL and IHRL. One of the results of such theory is that ‘the closer one is to the combat zone, the more likely will international humanitarian law be the applicable legal framework.’ See Prud’homme 2007, p 391.
- 108.
ICRC 2015, p 13. Unless there is an applicable treaty-clause that states that one branch would apply, wholly or partly, to the detriment of the other.
- 109.
The author drew the idea of the development of such guidelines from Sassòli and Olson who touched in greater detail on the development of guidelines that guide armed forces in their use of force. See Sassòli and Olson 2008, p 616.
- 110.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015, I.C.J. Reports 2015, p 3, para 474.
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Diab, N.I. (2020). Targeting Members of Non-State Armed Groups in NIACs: An Attempt to Reconcile International Human Rights Law with IHL’s (De Facto) Status-Based Targeting. In: Heffes, E., Kotlik, M., Ventura, M. (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-339-9_12
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