Targeted Killing and International Humanitarian Law

Assessing the Lawfulness of Targeted Killing in Contemporary International Humanitarian Law

1. Introduction

In the modern age of warfare, technology is playing an ever increasing role in strategical thought leading to a change in how operations are conducted around the globe. The largest operational change in this technologically diverse environment is the ever increasing use of “covert and clandestine operations of targeted killings”, which in past decades were largely “considered of doubtful legality or illegitimate.”[1] However, there now appears to be an increasing acceptance of targeted killings “as a method of counter-terrorism and ‘surgical warfare’.”[2] Although governments of the past would never admit to using targeted killings against its enemies, governments today have and continue to openly acknowledge the fact that they utilize targeted killings as a means “to curb insurgent or terrorist activities.”[3] Since the September 11^th terrorist attacks, the United States, Russia, Pakistan, and many NATO members have openly adopted targeted killings as one of their primary tools in counter insurgency operations. Targeted killings as seen through the lens of military strategy purely devoid of morality make sense. It could also be argued as the morally superior choice as it may be a way to reduce the total number of deaths, assuming precision allows for negligible collateral damage.

Morality aside, targeted killings invoke a varied response from the international community in terms of its lawfulness. “Some consider targeted killing as extra-judicial executions or assassinations.”[4] While others see targeted killing as “legitimate acts of war carried out as part of the state’s inherent right to self-defense.”[5] However the use of targeted killing, for the most part, is still extremely controversial as it “is located at the very point of tension between deeply rooted belief and values held by various stakeholders.”[6] Although targeted killing many fall within several legal regimes, this paper will focus on its jus in bello purview within contemporary international humanitarian law (‘IHL’).  As such, this paper argues that targeted killing is lawful under international law provided that certain criteria are met: (1) the circumstances of its use fall within the coverage of international humanitarian law, and (2) that the party/parties to the conflict comply with the principles regarding the conduct of hostilities. Consequently, the labeling of individuals/targets as terrorists does not suffices as justification for the use of lethal force in the absence of an armed conflict. Furthermore, States must abide by IHL if they insist on characterizing armed conflicts to include actions against terrorist/armed groups.[7]

As a means of depicting targeted killing as lawful under international law, the paper will be subdivided into five parts. The second part will discuss and clarify the concepts of international humanitarian law as well as certain requirements for its application. It will also look at the requisites and differences for an international and non-international conflict. The third part will discuss the elements of targeted killing as well as its concepts all while providing a definition. As part of providing a definition, multiple suggested definitions from various authors will be offered and evaluated. Part four will provide the necessary analyzes of applicable rules of warfare that States must follow when deciding to engage in targeted killing. This section will specifically discuss the principles of distinction, proportionality, military necessity, and precaution. The fifth and final section will be the conclusion, in which several items will be reiterated: (I) targeted killing is only justifiable within the context of an armed conflict, (II) States must strictly comply with the principles of international humanitarian law, (III) and that the international community needs to insist that international humanitarian law be obeyed at all times during a conflict.

2. International Humanitarian Law

International humanitarian law goes by many different names to include the law of armed conflict or even jus in bello, with it even being considered by some scholars to be synonymous with the law of war.[8] Within this paper IHL covers the both the Hague and Geneva Law, which form the basis of international customary law and international treaties. Primarily found within the four fundamental Geneva Conventions of 1949, Geneva Law is designed to ”specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.”[9] While the Hague Law, drawing mainly from 1899/1907 Hague Conventions, “deals with the way in which the hostilities must be conducted and regulates the use of means and methods of warfare.”[10] In addition to these proponents, the Additional Protocols of 1977 and 2005 to the Geneva Conventions make up the bulk of conventional rather than customary IHL. Although conventional IHL is only binding for State-Parties to the treaties, customary IHL is binding to all States and thus drawing a bulk of its rules from conventional IHL. Though these differences exist, contemporary IHL consists of both elements and only applies to situations on which an armed conflict is taking place.

While it is absolutely necessary for an armed conflict to exist for the application of IHL, “there is no codified definition of what an armed conflict is.”[11] Two standing principles that are fundamental to determining the existence of an armed conflict, as determined in the Tadic case, are that: “(i) there is a resort to force between two States; or (ii) there is protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”[12] The second type seems to describe the industry standard for current armed conflicts. Although above scenarios help in determining the existence of a conflict, they fail to define the term armed conflict, a failure also expressed in the Geneva Conventions. However, the Conventions do go as far as recognizing the existence of two types of conflicts which play an important aspect in the realm of targeted killings: international and non-international

“International Armed Conflicts (‘IAC’) are essentially those waged between States” and “apply to all cases of declared war, or to ‘any other armed conflict which may arise’ between two or more State parties thereto even if the state of war is not recognized by one of them.”[13] Since the adoption of the Geneva Conventions, the above definition of an IAC, found within Common Article 2, has operated without taking into account intensity or duration of the conflicts. However over the past decade the notion that an armed conflict must reach a certain level of intensity has been suggested as a criterion before classification of a conflict can be made. This, however appealing to some scholars, could lead to further legal controversies about when and where IHL applies over that of domestic law thus leading to the lessoning of treaty protections for both combatants and non-combatants alike.

Unlike an IAC the obligations of a non-international armed conflict (‘NIAC’) are described within Common Article 3 as “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” and they must follow two distinct factual criteria.[14] “The first is that the parties involved must demonstrate a certain level of organization, and the second is that the violence must reach a certain level of intensity.”[15] The requirements of an NIAC can be interpreted as referring to all types of armed conflicts that occur within the territory of a State-Party to the Conventions that are not deemed an IAC. However, as straight forward as this seems, the language set forth within Additional Protocol 2 implies that a precondition of a NIAC rests on determining the existence of at least two ‘parties’, one of which is the State party. “Nevertheless, it is widely recognized that a non-State party to a NIAC means an armed group with a certain level of organization.”[16] Organization is not limited to but includes the following: “the existence of a command structure and disciplinary rules and mechanisms within the armed group, the existence of headquarters, the ability to procure, transport and distribute arms, the group’s ability to plan, coordinate and carry out military operations, including troop movements and logistics, its ability to negotiate and conclude agreements such as ceasefires or peace accords.”[17] This limiting scope of Additional Protocol 2, helps to make it clear that “it does not apply when governmental forces are confronting non-State actors exclusively outside of their own territory or when a conflict within a State does not involve its own government forces.”[18] However, due to the lack of specifics within Common Article 3, it should apply in these cases, which closely mimics contemporary military engagements in which “military operations by States on the territory of neighboring States” have occurred “without internationalizing the conflict.”[19]

The importance of both defining the necessary qualifiers of a NIAC and in determining which aspect of IHL applies to what is paramount to understanding the contemporary military operations. It is in with this clarification that the “so-called ‘war against terrorism’ may not qualify as an armed conflict because ‘no social phenomenon, whether terrorism, capitalism, Nazism, communism, drug abuse or poverty can be a ‘party’ to a conflict.’”[20] Accordingly the ‘war on terrorism’ does not involve IHL as it does not fall under the definition of an NIAC per se. This per se is the defining factor that subsequently allows for IHL to be applicable, as multiple court cases at both national and international levels, to include the famous Hamdan v. Rumsfeld in the United States, has concluded that NIACs exist between States and non-State parties.[21] However, it’s the questionable nature of the ‘war on terrorism’ and where it falls within the scope of conflict designation that has given rise to the case by case determination of IHL applicability.

3. Targeted Killing

The concept of target killing is by no means something new, at least when looking at its practice over the past couple decades, yet many still look at it through a jus ad bellum perspective when trying to define the concept. As such, a variety of authors have created a number of different definitions for targeted killing. One of the main problems running through each of these definitions is that they tend to limit the scope of the term.

One such definition states that targeted killing is “the intentional killing of a specific civilian who cannot reasonably be apprehended, and who is taking a direct part in hostilities, the targeting done at the direction and authorization of the state in the context of an international or non-international armed conflict.”[22] Although this definition does correctly limit the use of targeted killing to armed conflicts, it falls short due to “it excluding targeting of combatants under all circumstances.”[23] In this state, the definition allows for combatants to be targeted at any point in time to include when they are away from the conduct of hostilities as well as in the absence of military necessity. This definition is the perfect showcase for one of the fundamental problems with contemporary IHL and its inability to address “the territorial scope of armed conflict”, especially in the context of targeted killing.[24] Solis attempts to address this by stating that “targeted killing is not the battlefield killing of combatants by opposing combatants,” however it does not fully address the issue of what codifies a battlefield.[25]

Another author that attempts to address the complexity of targeted killing states that it is “the intentional slaying of a specific alleged terrorist or group of alleged terrorists undertaken with explicit governmental approval when they cannot be arrested using reasonable means.”[26] The biggest problem with this definition lies the use of the term ‘terrorist’, due to the continual debates surrounding the definition of the term ‘terrorist’.  Although by focusing on the targeting of terrorists the definition attempts to provide a sense of moral acceptability, it simply lacks the necessary distinction in determining who is targetable. Similar to the above definition from Solis, this definition fails to make it clear as to “whether the inability to arrest using reasonable means is a condition or a description.”[27] Until a definition for ‘terrorist’, that is universally acceptable, along with a truly objective process of identifying a terrorist is found then this targeted killing definition stays problematic.

While the definitions above limited the scope of what constitutes a targeted killing, other authors/scholars have the problem of making the definition too broad. One such definition is as follows: targeted killing is the “pre-meditated, pre-emptive and deliberate killing of an individual or individuals known to represent a clear and present threat to the safety and security of a State through affiliation with terrorist groups or individuals.”[28] Although the ‘pre-emptive’ clause causes killings after prior attacks to not be covered, the truly unsettling part of the definition is the ‘affiliation’ clause allowing a swath of individuals to be targeted. This definition takes a look at the topic through jus ad bellum and because of this it has the ability to cast a broad net as to who may be targeted. Although the above definition is broad, it still maintains a sense of focus in comparison to how “David simply defines targeted killing as the ‘intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval.’”[29] This definition covers everything from genocide to legitimate military operations to abortion provided domestic law exists covering that. Aside from the few definitions stated above, multiple others exist making it difficult to address the lawfulness of targeted killings under IHL.

Though this difficulty exists, the following definitions and their subsequent elements provide the platform from which a truly comprehensive description could be crafted. The following definition provided by Melzer states that targeted killing is “the use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them.”[30]Although this definition is already more holistic when compared to the previous ones, Melzer further breaks it up by discussing it piece by piece. As such use of lethal force includes “any forcible measure, regardless of the means employed, which is capable of causing death of a human being” or in other words the object must only be used in a lethal capacity.[31] The next section pertaining to intent, premeditation, and deliberation to kill explain three important factors of his overall definition. Intent and premeditation is met with the fact that any action “be carried out with intent to kill the targeted person” and that “this intent be based on a conscious choice” rather than the use of impulsive/reckless force.[32] Attention to operational detail continues in Melzer’s description of deliberation, which states that “the death of the targeted person be the actual aim of the operation.”[33] The third element, targeting of individually selected persons, is very similar to deliberation in that only individuals may be targeted as opposed to a collection of random targets. When compared to the previously discussed definition the forth element, lack of physical custody, offers an explanation into the difference between targeted killing and extrajudicial killing. Although this element in necessary in the determination of what is taking place, it delves into a paradigm different from traditional IACs or NIACs in which law enforcement if the key rather than militaries. The final element, attributable to a subject of international law, is one of the limiting factors of Melzer’s definition as it limits, outside of certain situations, the use of targeted killings to States.[34] Although this definition, along with its subsets, provide an in-depth explanation of targeted killings, it has a few redundancies and built in deviations from the military paradigm.

Due to its deviations and redundancies within Melzer’s definition, it will be sidelined in favor of the definition provided by Casis stating that: “targeted killing is defined simply as the intentional use of lethal force by a party to an armed conflict against a specific individual while the latter is not in the physical custody of the former.”[35] Modeling it off of Melzer, Casis also provides an itemized explanation of the chosen definition. The first element, intentional, states that attacks must be performed deliberately with a clear target and must follow IHL while the next subset, use of lethal force, states that only methods sufficient to terminate the target be used.[36] One of the biggest differences in the definitions can be found in the third section, attack by a party to an armed conflict, where Casis specifically limits the use of targeted killing to armed conflicts. This section leaves the possibility for targeted killing to be applied to non-State actors actions , within an armed conflict, such as the issue of ‘smart munitions’ and the classification of suicide bombs as such.[37] The fourth section pertains to identification of the target as being a specific individual, as only then can it be possible to “determine whether the principles of distinction, military necessity, and proportionality are complied with.”[38] Casis closes out with the section pertaining to not in the physical custody of the attacker which solidifies targeted killing’s distinction from extrajudicial killings. Overall, this definition maintains a simple straight forward and holistic approach to determining what constitutes targeted killing, thus making it possible to determine the lawfulness of its use in contemporary IHL.

4. Rules of Warfare

Although killing an individual (enemy) is considered lawful under IHL in an armed conflict, certain principles must be followed. Due to the inherent controversial nature of targeted killing, they “require a ‘microscopic’ interpretation of the law governing the conduct of hostilities.”[39] One of the main, arguably most important, principles that much be followed at all time, regardless of the type of hostilities is the principle of distinction. Many in the international community describe the principle of distinction as “the cornerstone of the set of rules of international humanitarian law regulating the manner in which hostilities” are conducted.[40] Although this may be the case, the protection awarded by the principle towards civilians is not absolute, as it is based on the actions taken by individuals during any armed conflict. Within both conventional and customary IHL, civilians are awarded protection from attack, “unless and for such time as they are engages in a specific act of direct participation.”[41] When this occurs, civilians “must abide by the law of hostilities” otherwise they can be held liable for both war crimes under IHL and domestic crimes should they commit either or both.[42]

Based on the principle of distinction the traditional belief has been that two categories of individuals exist under IHL: combatants and civilian. This fundamental belief has been challenged in recent years as a third category has been formed titled ‘something other than a noncombatant’ which aims to explain the nature of modern guerrilla warfare.[43] The ‘creation’ of this third category is mainly due to the inability to recognize the difference between civilian protection, status in relations to participating in hostilities, and civilian status, designating of those not in a military faction, within IHL. In order to fully understand the difference between the two, it is extremely important to provide a definition for what counts as directly participating in hostilities (‘DPH’). This brings up further problems which the ICRC has tried to address over the past couple decades, mainly though looking at the nature of conduct and its duration in relation to protection. As such Melzer has created several approaches two of which are, restrictive and liberal in nature. Melzer’s first approach “tends to equate direct participation in hostilities with actual combat operations” to the point where “civilian conduct should entail loss of protection only for such time as it actually represents an immediate military threat to a party to the conflict.”[44] This approach requires that an action have a direct connection to any harm or malice for the opponent. The later approach states that it only incorporates “all conduct that functionally corresponds to that of governmental armed forces.”[45] Melzer includes “not only actual conduct of hostilities, but also activities such as planning, organizing, recruiting and assuming logistical functions” as a part of this approach.[46] Unlike the former approach, this one provides no distinction between general war effort participation, ex. farming, and DPH.  The most practical one, the fundamental approach, claims that the “performing functions of combatants” is tantamount from directly participating in hostilities.[47]

In conjunction with determining what accounts for DPH, it is equally important to determine the length for which civilian protection can be suspended. Once again Melzer has three approaches to this problem, the first of which is the specific acts approach which “lasts exactly as long as each specific hostile act amounting to direct participation in hostilities.”[48] The second approach that Melzer notes is the affirmative disengagement approach “which provides that civilians lose protection ‘from the time they engage in direct participation in hostilities and remain subject to direct attack until they ‘affirmatively disengage’ from such activities in a manner objectively recognizable by the adversary.’”[49] Although this provides a more holistic approach to the problem of determining the ‘when’ individuals by be targeted, it places a huge portion power in the hands of advisories as dissociation from a group can only be determined by them. The final approach is titled the functional membership approach which “combines the two other approaches” as it is able to apply the second approach to “members of organized armed groups” and the first approach “to unorganized civilians.”[50]

These distinctions are extremely important in determining when, where, and for how long individuals “may be subjected to direct attack, and the rules and principles governing the use of force against them.”[51] Due to this grey area, contemporary conflicts have seen a rise in unlawful combatants which describes an individual taking direct participation in hostilities as a civilian thus losing their protection rather than being placed in an individualized category under IHL. The tag of unlawful combatant is usually connected with terrorists, with some believing that it allows States to engage in hostilities without affording individuals the privileges of being a combatant or the protection of being a civilian. However, this title is only given to individuals who meet the requirements of the: threshold of harm, direct causation, and belligerent nexus as discussed above.[52] Otherwise certain actions taken within an armed conflict do not amount to DPH.

The principle of military necessity, though not as important as the principle of distinction, is still a fundamental basis of IHL.  “Melzer argues that ‘without an adequate understanding of the concept of military necessity, modern IHL cannot be properly interpreted and applied to current challenges, such as the increasing resort by States to the method of targeted killing.’”[53] As such

5. Conclusion

Targeted killing is only justifiable within the context of an armed conflict and thus IHL governs its use which in turn forces States to have to prove the existence of an armed conflict. In conjunction with proving the existence of an armed conflict, States must denote whether it is an international armed conflict, involving two or more States regardless if one side denies the existence of a state of war, or a non-international armed conflict, where a state of protracted armed violence exists between organized armed forces not of an inter-State character.[54] Due to the existence of only two forms of armed conflict, as stated in IHL, the notion of a ‘war on terror’ can only be utilized if it complies with the conditions of a NIAC, but the utilization of the term terrorist is not a sufficient justification for the application of IHL.

As stated, if engaged in an armed conflict, a State may engage in targeted killing provided it complies with IHL. The first principle in determining this compliance is the principle of distinction, which dictates when and where those participating in hostilities may be targeted. Following the determination of status, the principle of military necessity must be applied as a means to determine ‘targetability’, followed by the principle of proportionality which pits direct military advantage against collateral damage. Finally the principle of precaution must be applied in which seeks to avoid any damage to civilians/civilian objects. Despite following the above principles and its permissibility under IHL “targeted killings must be located at the extreme end of the scale of methods permitted under the normative paradigm of hostilities.”[55] For this reason it is in the international community’s best interest to limit the application of targeted killings to cases only where all above principles are followed.

The utilization of targeted killing has had a controversial impact on overall strategical outcomes, especially when considering collateral damage and subsequent operational perspectives from its use. “Aregular practice of targeted killings would seem to resurrect the doctrine of Kriegsraison with its basic maxim stating that ‘the requirements of war prevail over the manners of war’” thus allowing the return of the “Machiavellian doctrine of the ends justifying the means.”[56] As IHL was created to minimize the effects of war that cannot be avoided, the principles discussed above are vital to diminishing possible suffering from targeted killing, making States adherence to the principles fundamental for compliance. “Terrorism is lawlessness. A counter-terrorism strategy that disregards the law will only stoke the fire and not put it out” a sentiment that has been experienced within contemporary operations.[57]

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[1] Rommel J. Casis, ‘Predator Principles: Laws of Armed Conflict And Targeted Killings’ (2011) 329

[2] Nils Melzer, Targeted Killing In International Law (1st edn, OUP Oxford 2008) 9

[3] Id, at 9-10

[4] Casis, supra note 1 at 330-331

[5] David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005)

[6] Melzer, supra note 2 at xi

[7] Casis, supra note 1 at 331

[8] Christopher Greenwood, ‘The Law of War (International Humanitarian Law)’, International Law (2006) 789

[9] ‘The Geneva Conventions Of 1949 And Their Additional Protocols – ICRC’ (International Committee of the Red Cross, 2010)

[10] Hector Olasolo, Unlawful Attacks in Combat Situations: From The ICCTY’s Case Law To The Rome Statute (2008) 18

[11] Casis, supra note 1 at 333

[12] Id.

[13] Jelena Pejic, ‘Extraterritorial Targeting By Means Of Armed Drones: Some Legal Implications’ (2014) 77

[14] Casis, supra note 1 at 336

[15] Pejic, supra note 13 at 79

[16] Id. at 80

[17] Id.

[18] Melzer, supra note 2 at 257

[19] Id. at 259

[20] Casis, supra note 1 at 338

[21] Hamdan v Rumsfeld [2006] Supreme Court of the United States, 548 US

[22] Gary Solis, ‘Targeted Killing and The Law Of Armed Conflict’ (2007) 127

[23]Casis, supra note 1 at 340

[24] Pejic, supra note 13 at 94

[25] Solis, supra note 22 at 129

[26] W. Jason Fisher, ‘Targeted Killing, Norms, and International Law’ (2007) 715

[27] Casis, supra note 1 at 342

[28] Thomas Byron Hunter, ‘Targeted Killing: Self-Defense, Preemption, and The War On Terrorism’ (2009) 3

[29] Casis, supra note 1 at 342

[30] Melzer, supra note 2 at 5

[31] Id. at 3

[32] Id.

[33] Id.

[34] Id.

[35] Casis, supra note 1 at 345

[36] Id.

[37] Id. at 345-346

[38] Id. at 346

[39] Melzer, supra note 2 at xiii

[40] Olasolo, supra note 10 at 13

[41] Pejic, supra note 13 at 80

[42] Melzer, supra note 2 at 329

[43] Solis, supra note 22 at 135

[44] Melzer, supra note 2 at 335

[45] Id. at 338

[46] Id.

[47] Id.

[48] Id. at 348

[49] Casis, supra note 1 at 360

[50] Melzer, supra note 2 at 350

[51] Pejic, supra note 13 at 91

[52] Id.

[53] Casis, supra note 1 at 367

[54] Melzer, supra note 2 at 394-395

[55] Id. at xiii

[56] Id. at 280

[57] Casis, supra note 1 at 378