J U R I D I C U M
Targeted killing under International Humanitarian Law
The lawfulness of targeted killing in armed conflicts
Sara Ali Abed
VT 2020RV600G, Rättsvetenskaplig kandidatkurs med examensarbete, 15 högskolepoäng Examinator: Adam Croon
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Abstract
Targeted killing is an action which is not regulated within public international law. If such killing occurs outside the scope of International Humanitarian Law (IHL) then it is subject to International Human Rights Law (IHRL), and the killing will prohibit the right to life. The analysis of the lawfulness of targeted killing in IHL mainly depends on if the killing occurred within an armed conflict.
The question of who can be killed and how must also be answered to examine the lawfulness of targeted killing within an armed conflict. Military objectives such as combatants and persons participating in a levée en Masse are liable to attack in an international armed conflict. Civilians taking direct part in hostilities are also liable to attack. This regards especially conflicts of non-international character. Civilians not taking direct part in hostilities, however, should not be targeted, and any harm to civilians resulting from an attack must be proportionate.
Certain means and methods are prohibited to use when conducting targeted killing. An example is poison which is a prohibited mean of use to conduct killing. Weapons which are not prohibited must be assessed before use so as not to lead to unnecessary suffering or superfluous injury. The weapons must also be ensured so as to not lead to indiscriminate attack. In conclusion, targeted killing is not prohibited, but it is subject to the rules of armed conflicts. An attack can be unlawful, even if the person made object is a lawful target. This is the case if the weapons used are unlawful.
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Table of contents
Abstract ... i
Table of contents ... ii
Abbreviation list ... iii
1. Introduction ... 1
1.1 Aim and legal issues ... 2
1.2 Method and material ... 2
1.3 Delimitation ... 4
1.4 Structure ... 4
2 Targeted killing during armed conflicts ... 6
2.1 International Humanitarian law ... 6
2.2 The scope of armed conflicts ... 7
2.3 The geographical scope of armed conflicts ... 7
3 Target and targeting: Individual status in armed conflicts ... 9
3.1 Principle of distinction, proportionality and precaution at time of an attack ... 9
3.2 Civilians ... 10
3.3 Military objectives ... 10
3.4 Combatants ... 11
3.5 Civilians directly participating in hostilities ... 13
3.6 Findings ... 15
4 Means and methods to conduct targeted killing ... 16
4.1 Principles to apply at the time of targeted killing ... 16
4.2 Unlawful use of weapons ... 18
4.3 Findings ... 22
5 Analysis... 24
6 Conclusion ... 26
7 List of Sources ... 28
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Abbreviation list
ADFP Australian Defence Force Publication AJIL American Journal of International Law Am J Int'l L American Journal of International Law
Art/s Article/s
BBC British Broadcasting Corporation
C.I.A. Central Intelligence Agency
CCW Convention on Certain Conventional Weapons
CRS Congressional Research Service
CUP Cambridge University Press
Doc Document
ed editor
edn edition
ff and the following pages
HCJ High Court of Justices
HRC Human Rights Council
ibid ibidem
ICC International Criminal Court
ICJ International Court of Justice
ICRC International Committee of the Red Cross ICTR International Criminal tribunal for Rwanda ICTY International Criminal Tribunal for Rwanda
IHL International Humanitarian law
IHRL International Human Rights Law
ILA International Law Association
ILC International Law Commission
ILR International Law Report
Int’l International
IRRC International Review of the Red Cross
LA Times Los Angeles Times
LNTS League of Nations Treaties Series
No Number
NY Times New York Times
OUP Oxford University Press
p/pp page/pages
Para Paragraph
PIL Public International Law
Rev Review
St Saint
UK The United Kingdom of Great Britain and Northern Ireland
UN United Nations
UNCIO United Nations Conference in International Organisation
UNGA United Nations General Assembly
UNTS United Nations Treaty Series
US The United Stated of America
v versus
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1. Introduction
The term ‘targeted killing’1 lacks legal definition even though it is widely used. The use of the term resulted from the debate following the State of Israel’s confirmation of pursuing ‘policy of targeted frustration’ towards terrorism since 2000 as a reaction to a series of suicide bombings during the Second Intifada.2 State practise of the United States of America and the Russian Federation proves that they are also engaged in the practise of ‘targeted killing’.3 The United States of America proclaimed a doctrine of preventive self-defence in the ‘global war on terror’ after the terror attack of 11 September 2001. This has resulted in a US practise of intentionally killing certain terrorist suspects both within and outside areas of active hostilities.4 Russia has even authorized the practice of targeted killing. As many other countries it has also engaged in it.5
Since the term ‘targeted killing’ is not a legal term, it can, therefore, not denote whether an act of killing is legal or not.6 However, recent political and legal discourse uses the term to describe States’ practice of intentionally killing selected persons.7
Targeted killing is defined by five cumulative elements,8 which include, firstly, the act of killing
is attributable to a subject of international law, meaning by State or their actors, or by an organised armed group in armed conflict.9 Secondly, the targeted person is selected individually, which means that the attack is not random or collective.10 Thirdly, there is an
intent,11 premeditation12 and deliberation13 to kill,14 and fourthly, there is the use of lethal force to kill.15 This means that regardless of means employed the use of forcible measure can cause death.16 Lastly, the targeted person is not in the physical custody of those targeting them. This element is used to distinguish targeted killing from judicial and extrajudicial ‘executions.17 States engaged in targeted killing must respect pertinent human rights, as the killing is directed against individually selected persons.18 Within the human rights framework the most important
1 Other terms for targeted killing are, inter alia, liquidation, elimination, targeted self-defence, preventive killing
and interception. These terms tend to indicate a political preference, ‘which render them unsuitable for an objective and unprejudiced analysis of the method of targeted killing under international law.’ See Nils Melzer,
Targeted Killing in International Law (OUP 2009) 6.
2 Targeted killings Case, Public Committee against Torture in Israel v The Government of Israel (2006) HCJ
769/02 Supreme Court as High Court of Justice of Israel (Targeted Killings) [2]; United Nations General Assembly (UNGA) ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston: Study on Targeted Killings’ (28 May 2010) UN Doc A/HRC/14/24/Add.6 [7], [13].
3 George Nolte, ’Targeted Killing’ (March 2011) in Rüdiger Wolfrum (ed), Max Planck Encyclopaedia of Public
International Law (Online edn) para 2.
4 ibid. 5 ibid. 6 ibid para 1. 7 ibid para 1.
8 UNGA (n 2) [1]; Nils Melzer (n 1) 4. 9 ibid.
10 ibid.
11 Intent refers to the operation carried out with the intent to kill. See Nils Melzer (n 1) 4.
12 Premedication requires that the intention is based on conscious choice. See Nils Melzer (n 1) 4. 13 Deliberation requires that the death of the targeted person is the actual aim. See Nils Melzer (n 1) 4. 14 UNGA (n 2) [1]; Nils Melzer (n 1) 4.
15 UNGA (n 2) [1]; Nils Melzer (n 1) 3. 16 Nils Melzer (n 1) 3.
17 UNGA (n 2) [1]; Nils Melzer (n 1) 4. 18 Nils Melzer (n 1) 4.
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and comprehensive rule is the right to life.19 In most circumstances targeted killing violates the right to life, but, in exceptional circumstances of armed conflict, it may be legal.20 A State must
also respect the International Humanitarian Law (IHL) framework,21 as it contains a number of specific rules for situations of armed conflict as leges speciales.22
IHL is constituted of a balance between military necessity and humanity. Accordingly, to overcome an adversary in wartime it is recognised to be a military necessary to cause death, injury, destruction, and to impose more severe measures than are permissible in peacetime.23 Furthermore, the required consideration of humanity imposes certain limits on the means and methods of warfare. Additionally, it imposes a requirement that those who have fallen into an enemy’s hands are to be treated humanely.24
1.1 Aim and legal issues
Targeted killing as a non-legal term poses many legal questions, especially within the IHL framework. When can States resort to targeted killing within an international and a non-international armed conflict? At what times is such killing considered unlawful? Are there exceptions? Who can be targeted?
The aim of this thesis is therefore to examine the legal rules of IHL applicable to targeted killing, as well as the legal consequences for States committing such killings. A primary issue concerns the difference between the regulation of targeted killing within an international and non-international armed conflict. Sub-questions raised are therefore the following:
1. When is IHL applicable? What is an armed conflict? What is the application scope of IHL?
2. Who can be targeted during armed conflicts? When is such targeting lawful or unlawful? 3. What are the lawful and unlawful means to use when conducting targeted killing under
armed conflicts of international and non-international character?
1.2 Method and material
Sine, the aim of this thesis is to examine the legal rules of IHL applicable on targeted killing, as well as the legal consequences for States committing such killings, a de lege lata (the law as it exists) analysis is conducted. As a result, it is natural to apply the legal dogmatic method for this thesis. The legal dogmatic method is controversial25 because dogma is something unchangeable.26 However, legal dogmatics is understood as the ‘study of the content of legal
rules (norms) and of the systematic order of those.’27 It is the knowledge of the jurisprudence
that tries to describe the legal-positive standards.28
19 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 240; See also Nils
Melzer (n 1) 91 ff.
20 UNGA (n 2) [10]. 21 George Nolte (n 3) para 4. 22 George Nolte (n 3) para 5.
23 Nils Melzer and Etienne Kuster, International Humanitarian Law: A Comprehensive Introduction (ICRC
2016) 18.
24 ibid.
25 Raul Narits, ‘Principles of Law and Legal dogmatic as Method Used by Constitutional Courts’ (2007) Juridica
International <https://www.juridicainternational.eu/public/pdf/ji_2007_1_15.pdf> accessed 9 March 2020, p 19.
26 ibid p 15.
27 Álvaro Núñez Vaquero, ’Five Models of Legal Science’ (2013) Revus 53, 58. 28 ibid.
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The dogmatic method is concerned with the objective meaning of the positive legal order,29 which refers to the recognized sources of law within a legal order.30 It systematically examines
the dogmatic contents of existing legal norms or their complexes. The method aims to land in the understanding of what the content of the applicable law is,31 not necessarily how the positive law was intended to be.32
Because of the controversy of the method, it is necessary to explain the use of this method within this thesis and the material used to apply the method. The purpose is to identify the legal rules applicable on term ‘targeted killing’ within armed conflicts. As such, the applicable law of Public International Law (PIL) identified in Article 38 of the Statute of the International Court of Justice33 are systematically examined. The sources are identified, analysed and applied to the legal questions of this thesis.
IHL is a branch within PIL, hence, the recognized sources of law operate between equal and sovereign collectives.34 In other words, they operate between States. PIL is therefore also
known as the law of nations.35 The sources of IHL are: international conventions, customary international law, general principles of law, writings of the most highly qualified publicists and judicial decisions.36 The sources of international law can be divided into primary and secondary sources. The primary are international conventions, customs and general principles of law. Judicial decisions are considered a primary source of law only at the time when the decision in question regards the party or parties in question.37 In situations where they do not, judicial decisions bear a persuasive evidence of customary rule,38 rather than establishing customary
international law. This is also the situation of literature by most highly qualified publicists. Decisions and writing of most highly qualified publicists are used within the international method to find reference to and recognition of rule in other sources (international conventions, customs and general principles).39
For a de lege lata analysis, international conventions, customs and general rules are the primary sources used to identify the legal rules regarding targeted killing within the IHL framework. Literature from the most qualified publicists and judicial decisions will be used to identify legal definitions of terms used within IHL and, also, to understand the reasons behind legal rules. International conventions are also referred as, inter alia, treaties, international agreements, covenants, charters and protocols.40 These may either be bilateral (between two parties) or multilateral (between more than two parties). International conventions are only binding between the parties of the agreement. The applicable conventions for international armed conflicts differ from the applicable conventions on non-international armed conflicts.
Non-29 Teruo Minemura, ‘Dogmatic Legal Science and Sociology of Law’ (1970) 56 (3) Archives for Philosophy of
Law and Social Philosophy 351, 352.
30 Roberto Ago, 'Positive Law and International Law' (1957) 51 Am J Int'l L 691. 31 Teruo Minemura (n 29) 352.
32 ibid p 356.
33 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 15
UNCIO 355 (ICJ Statute).
34 James Crawford, The Cambridge Companion to International Law (CUP 2012) 64-65. 35 James Crawford, Brownlie’s Principles of Public International Law (9th edn, OUP 2019) 3. 36 Art 38 ICJ Statute.
37 See for example Art 59 ICJ Statute.
38 Marci Hoffman and Mary Rumsey, International and Foreign Legal Research: A Coursebook (Brill 2012)
127.
39 ibid. 40 ibid 81.
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international armed conflicts are based on Common Article 341 to the Geneva Conventions and Additional Protocol II.42 All other international conventions are applicable to international
armed conflicts.
Customary international law is combined of two elements, namely State practise (international acts, in repetition, by States over a period of time) and opinio juris (acts of States with a sense of legal obligation).43 General principles of law refers to legal principles applied universally in legal systems of the world.44 Customary international law of IHL is identified by writing of the highly qualified publicists, in the form of journals, literature and reports from the ICRC. These writings are also used to understand the aspects of IHL. An example of how writing by highly qualified publicists explain other aspects which directly affects IHL is what and how some weapons are used. However, the main use of writings from highly qualified publicists is to understand the rules established in the international conventions and customary law.
International judicial decisions from, inter alia, the ICJ, ICTY and ICC, in additional to domestic decisions, are used to understand the application of the provisions of IHL. They are also used to explain the definition of certain individual status or the meaning of certain wordings. Judicial decisions also indicate the application and understanding of certain rules of IHL within the international sphere.
1.3 Delimitation
The term ‘targeted killing’ raises many legal issues within the international law framework. However, due to the length of this thesis the focus is on armed conflicts in line with IHL, as well as the responsibility it entails on States for conducting unlawful killings. Other relevant issues to the topic, which are not addressed within this thesis, are: attacks on cultural sites; the prohibition of use of force in line with Article 3 of the UN Charter45 and self-defence; territorial sovereignty and the requirement of transparency and accountability of killings. Other issues are International Human Rights Law (IHRL), as the killing is directed against specifically selected persons, and international criminal law.
1.4 Structure
The structure of this paper follows the order of the sub-questions. The first chapter aims to establish when an armed conflict takes place and explain when IHL is applicable. The first chapter presents an explanation of the meaning of armed conflict which is the basis for the analysis of the second and third sub-question of this paper.
The second chapter analyses the individual status of persons during armed conflicts. This section identifies who can be targeted within the IHL framework. As one of the elements of targeted killing is that an individual is targeted, the analysis of this chapter only regards targeted killing of individuals.
41 Common Article 3 to the Geneva Conventions (Common Article 3) applies to armed conflicts which are not of
an international character.
42 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II), 8 June 1977 (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II) Art 1.
43 Legality of the Threat or Use of Nuclear Weapons (n 19) [64]; Marci Hoffman and Mary Rumsey (n 38)
113-114.
44 Nils Melzer and Etienne Kuster (n 23) 24; Marci Hoffman and Mary Rumsey (n 38) 126.
45 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119
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The last chapter explains which weapons are unlawful to use and the rules deriving from the principles concerning the means and methods used during the operation of targeted killing. This chapter lays out the relevant rules regarding the means and methods under IHL which mainly derive from the principles of military necessity, prohibition against unnecessary suffering or superfluous injury, indiscriminate attacks, proportionality and distinction.
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2 Targeted killing during armed conflicts
2.1 International Humanitarian lawIHL is also known as jus in bello, which means the law of armed conflict. IHL seeks to limit the humanitarian consequences of armed conflict where its primary purpose is to restrict the means and methods of warfare employed by the parties of a conflict. It also seeks to ensure the protection of humane treatment of persons that are not part of hostilities or have stopped taking direct part in hostilities.46 Belligerents47 must always comply with the IHL obligations.48 Accordingly, irrespective of the motives or the nature or origin of the conflict, IHL is equally binding on all parties to an armed conflict.49
There is no treaty definition of ‘armed conflict’ within IHL. However, in the Tadic case the International Criminal Tribunal of the former Yugoslavia (ICTY) has provided that an armed conflict:
exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts50, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. 51
An armed conflict between two or more States is defined as an international armed conflict.52
Armed conflict between a State and an organised armed group or between only armed groups is a non-international armed conflict.53 The criterions for ‘organisation’ are the internal structure, such as an organisation to carry out military operation and the existence of collective nature of violence, as opposed to random individual attacks.54
46 Hostilities means act of warfare and war. See, Oxford English Dictionary ‘Hostilities’ <
https://www-oed-com.db.ub.oru.se/view/Entry/88772?redirectedFrom=hostilities#eid> accessed 21 April 2020; Melzer and Kuster (n 23) 17.
47 Belligerent refers to someone waging or carrying on regular recognized war. It defines someone engaged in
hostilities. See, Oxford English Dictionary ‘Belligerent’ <
https://www-oed-com.db.ub.oru.se/view/Entry/17449?redirectedFrom=belligerent#eid> accessed 21 April 2020.
48 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field (adopted 22 August 1864, entered into force 12 August 1949) 75 UNTS 31 (Geneva Convention I) Art 1; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary Internatinal Humanitarian Law – Volume I: Rules (CUP 2005) (CIHL) Rule 139.
49 Protocol Additions to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (Adopted 8 June 1977, Entered into force 8 June 1977) 1125 UNTS 3 (Additional Protocol I), para 5 of Preamble.
50 The term ‘internal conflict’ is another term for non-international armed conflict.
51 ICTY, Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction)
IT-94-1-A (2 October 1995) [70] (Tadic Case).
52 ICRC, Commentary on the First Geneva Convention - Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field (CUP 2016) [225]; ICC, The Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-01/06 (29 January 2007) [209]; see also Germany,
Federal Ministry of Defence, ‘Law of Armed Conflict – Manual –Joint Service Regulation (ZDv) 15/2’ (May 2013) <https://www.bmvg.de/resource/blob/93610/ae27428ce99dfa6bbd8897c269e7d214/b-02-02-10-download-manual-law-of-armed-conflict-data.pdf> accessed 13 April 2020 para 203.
53 Common Art 3 to the Geneva Conventions I-IV; ICC, The Prosecutor v Thomas Lubanga Dyilo (n 52) [209];
Dieter Fleck (ed), The Handbook of International Humanitarian Law (3rd ed OUP 2013) 581.
54 ICC, The Prosecutor v Thomas Lubanga Dyilo (n 52) [237]; ICRC, ‘How is the Term “Armed conflict”
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Non-international armed conflicts are governed by Common Article 355 and Additional
Protocol II.56 These types of conflicts are also governed by customary international law. International armed conflicts on the other hand are governed by all other provisions of the Geneva Conventions and Additional Protocol I and III. These conflicts are also governed by customary international law and other international agreements applicable on the State in question.
Accordingly, an international armed conflict includes declared war, other armed conflicts and partial or total occupation.57 It also applies to conflict where people fight in the exercise of their right to self-determination against colonial domination, alien occupation and against racist regimes.58 However, ‘internal disturbance and tension, such as riots, isolated and sporadic acts
of violence and other acts of similar nature’ are not sufficient for the application of IHL in an international or non-international armed conflicts.59 Whether the parties to an armed conflict consider themselves to be at war with each other or not is not relevant to the application of IHL.60
2.2 The scope of armed conflicts
IHL applies only to the territory where there is actual threat of conflict.61 The application of IHL continues until a peaceful settlement has been reached from the initiation of armed conflicts. This is an approach which the ICTY has taken in line with the approach established for international armed conflicts,62 because hostilities can be stopped ‘temporarily or permanently, conditionally or unconditionally, in general or locally, unilaterally or multilaterally’.63 However, the end of active hostilities in itself does not terminate an
international armed conflict. Furthermore, ‘peaceful settlement’ does not refer to the mere existence of an agreement to withdraw or a declaration of an intention to cease to fire.64
2.3 The geographical scope of armed conflicts
The geographical scope of an international armed conflict is not regulated within the Geneva Conventions. Some provisions, however, provide that the provision applies to the whole
<https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf > accessed 13 April 2020, 5; See also ICTY, Prosecutor v Ramush Haradinaj et al (Judgment) IT-04-84-T (3 April 2008) [60]; ICC, The
Prosecutor v Jean-Pierre Bemba Gombo (Judgment Pursuant to Article 74 of the Statute) ICC-01/05-01/08
66/364 (21 March 2016) [134]; ICTY, Prosecutor v Limaj et al (Judgment) IT-03-66-T (30 November 2005) [90]; ICTY, Prosecutor v Boškoski (Judgment) IT-04-82-T (10 July 2008) [199] – [203]; ICC, the Prosecutor v
Thomas Lubanga Dyilo (n 52) [537]; ICC, The Prosecutor v Germain Katanga (Judgment) ICC-01/04-01/07 (7
March 2014) [1186].
55 Common Art 3 to the Geneva Conventions I-IV. 56 Additional Protocol II Art 1.
57 Common Article 2 to the Geneva Conventions I-IV. 58 Additional Protocol I Art 1(4).
59 Additional Protocol II Art 1(2); Juan Carlos Abella v Argentina, Report No 55/97, Inter-American Court of
Human Rights OEA/Ser.L/V/II.95, Doc 7 rev (18 November 1997) [149], [152].
60 Germany, Federal Ministry of Defence (n 52) [203].
61 Germany, Aerial Drone Deployment on 4 October 2010 in Mir/AliPakistan (‘Targeted Killing in Pakistan
Case’), Decision to Terminate Proceedings, Federal Prosecutor General, Case No 3 BJs7/12-4 (23 July 2013), 157 ILR 722, 744-6.
62 Tadic Case (n 51) [70]; ICTY, Prosecutor v Ramush Haradinaj (n 54) [100]; ICTY, Prosecutor v Dragoljub
Kunarac, Radomir Kovač and Zoran Vukovic´ (Judgment) IT-96-23 & IT-96-23/1-A (12 June 2002) [57]; ICTY, Prosecutor v Gotovina et al (Judgment) IT-06-90-T (15 April 2011) [1694].
63 Germany, Federal Ministry of Defence (n 52) [221].
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territory of the parties to the conflict and not just to the vicinity of actual hostilities. For example, according to Geneva Convention IV Article 6(2),65 civilians are to be protected
anywhere on the territory of the parties to the conflict. Article 3(b) of Additional Protocol I provides similar wording.
However, when an international armed conflict occurs due to occupation, then the law of occupation only applies to those areas controlled by the occupying power and ceases to apply where the occupying power no longer exercises an actual authority over the occupied area.66 The ICTY stated in Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vukovic´ case67 that the law of war applies in the whole territory of warring States. In cases of non-international armed conflict, IHL applies to the whole territory under the control of the party to the conflict, no matter if the hostilities take place there or not.68 IHL applies to the whole territory of one of the parties to an armed conflict even if no violence is taking place at some parts of the territory. The requirement for acts of crime to be regulated under IHL must, however, be closely connected with the armed conflict taking place.69
In line with the wording of Common Article 3, the law of armed conflict applies in the territory of ‘one’ High Contracting party. The Commentary to Common Article 3 moreover interprets the wording literally. It states that armed conflicts take place ‘within the confines of a single State’.70 The meaning of ‘one’ has raised debate as to whether it applies equally where the
conflict occurs in more than one State.71 The other argument, is that the term ‘one’ simply
reflects the fact that the Geneva Convention would only bind the State party to it. Hence, naturally Common Article 3 would not apply to conflicts within the territory of a State not a party to the Convention.72 Additional Protocol II, however, states ‘a High Contracting party’ and as such avoids that issue.73
65 Geneva Convention Relative to the Protection of Civilian Persons in Times of War of August 12, 1949
(adopted 12 August 1945, entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV) Art 6(2).
66 ICTY, Prosecutorv M Naletilic´ and V Martinovic´ (Judgment) IT-98-34-T (31 March 2003) [218]. 67 ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vukovic´ (n 62).
68 ibid [57]; See also Special Court for Sierra Leone, Prosecutor v Brima, Kamara and Kanu (Judgment) SCSL
04-16-T (20 June 2007) [245].
69 ICTY, Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vukovic´ (n 62) [57], [568].
70 ICRC (n 52) [455].
71 Sylvain Vité, ‘Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual
Situations’ (2009) 91 IRRC 69, 78; Rogier Bartels, ‘Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and non-International Armed Conflicts’ (2009) 91 ICRC 35, 61–4.
72 Sylvain Vité (n 71) 78; Bartels (n 71) 60. 73 Additional Protocol II Art 1(1).
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3 Target and targeting: Individual status in armed conflicts
3.1 Principle of distinction, proportionality and precaution at time of an attack
A targeted killing during armed conflict, whether it is international or non-international, must be assessed in line with the principles of distinction, proportionality and precaution as these are regulated in customary international law. This includes the time from deciding on the target until the attack itself.
In line with Article 48(1) of Additional Protocol I, the principle of distinction requires that parties to an armed conflict must distinguish between the civilian population and the combatants and between civilian objects and military objectives. Accordingly, parties to an armed conflict shall only direct their operations, such as targeted killing, against military objectives.74 The civilian population and individual civilians shall enjoy general protection from danger deriving from military operations.75 The principle of distinction further recognises that the only legitimate objective which States should aim at is to weaken the military forces of the enemy.76 The principle reflects customary international law.77 It has also been acknowledged as one of the ‘cardinal’ principles of IHL.78 Persons no longer taking active part in hostilities are also
protected from attack in line with the principle of distinction.79 In non-international armed
conflicts individuals of a non-State armed group whose continuous function is to take direct part in hostilities is considered a combatant. Therefore, they are not considered civilians and are not entitled to protection against targeted killing.80
The principle of proportionality comes into play when an operation of targeted killing cannot avoid infliction or incidental harm on civilians.81 The principle of proportionality requires that those who plan or decide on an attack ‘which would be excessive in relation to the concrete and direct military advantage anticipated’82 must make sure that it will not harm civilians, damage
civilian objects or lead to the loss of a civilian life or a combination thereof.83 The principle also requires that parties to such an excessive attack must refrain from launching, or must suspend an attack which will cause civilians harm, damage civilian objects or lead to loss of civilian life or a combination thereof.84 When collateral causalities are disproportionate to the specific gain from an attack the principle of proportionality will be breached.85
Furthermore, the principle of precaution requires the parties to a conflict to assess the situation before and during targeted killing and the effect of such killing. It imposes a duty to take all feasible precautions, including in the choice of means and methods, with a view to avoid and to minimize incidental harm to civilians and civilian objects.86 It further requires that those who
74 Additional Protocol I Art 48; Additional Protocol II Art 13(2); CIHL (n 48) Rules 1 and 7. 75 Additional Protocol I Art 51(1); Additional Protocol II Art 13(2); CIHL (n 48) Rule 1.
76 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.
Saint Petersburg, 29 November / 11 December 1868 (adopted 11 December 1868, entered into force 11 December 1868) (St Petersburg Declaration).
77 CIHL (n 48) Rules 1 and 7; ICTY, Prosecutor v Dragomir Milosevic (Judgement) IT-98-29/1-T (12 December
2007) [941].
78 Legality of the Threat or Use of Nuclear Weapons (n 19) [78]. 79 Tadic Case (n 51) [127].
80 Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International
Humanitarian Law’ (2008) 90 IRRC 991, 27.
81 CIHL (n 48) Rule 14; Additional Protocol I Art 51(5)(b). 82 CIHL (n 48) Rule 18.
83 ibid.
84 Additional Protocol I Arts 51(5)(b) and 57(2)(a)(iii) and (b); CIHL (n 48) Rule 19. 85 Legality of the Threat or Use of Nuclear Weapons (n 19) [20].
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plans an attack must make sure that those targeted are military objectives and not protected from an attack under IHL.87 Moreover, the party affected by an enemy attack is also require to
take precautionary measures to protect the civilian population and civilian objects under their control against the danger resulting from military operations.88
The principle of precaution together with the principle of proportionality requires that a belligerent must direct their attack to the alternative that leads to least danger to civilians and civilians objects if there is choice between several military objectives that will lead to the same military advantage.89 In other words, a State which conducts targeted killing must direct its operation against the targeted person where the effect of the targeted killing will lead to less harm on civilians. An attack must be cancelled or suspended if it becomes apparent after it has commenced that the target was mistakenly regarded as a military objective.90
Belligerents have a duty, to the maximum extent feasible, to avoid locating military objectives within or near densely populated areas91 and to remove the civilian population, individual
civilians and civilian objects under their control from the vicinity of military objectives.92 To protect the civilians population the belligerent party may, inter alia, install shelter, trenches and safe places, distribute information and warnings and also evacuate civilians.93
These three principles are closely linked as they all seek to limit the damage, injury and death of civilians and civilian objects, while at the same time allowing operation in line with the military necessity.94
3.2 Civilians
It is prohibited to conduct targeted killing on civilians.95 Under IHL the civilian population is negatively defined to encompass all persons who are neither members of the armed forces of a party to an armed conflict nor participants in a levée en masse.96 As such, all objects failing to qualify for military objectives or persons are by default regarded as civilians. In case of doubt, the persons must be regarded as civilians.97
Moreover, in line with the requirement of proportionality, those who plan or decide on an attack must also do everything feasible to assess whether that attack may be expected to cause excessive incidental harm and, if so, refrain from launching it.98 A process of elimination is therefore applied to define civilians.
3.3 Military objectives
Military objectives can legally be targeted within an armed conflict.99 Article 52(2) of
Additional Protocol I provides that military objectives are limited to objects which ‘make an
87 Additional Protocol I Art 57(2)(a)(i); CIHL (n 48) Rule 16. 88 Additional Protocol I Art 58; CIHL (n 48) Rule 22. 89 Additional Protocol I Art 57(3); CIHL (n 48) Rule 21. 90 Additional Protocol I Art 57(2)(b); CIHL (n 48) Rule 19. 91 Additional Protocol I Art 58(b); CIHL (n 48) Rule 23. 92 Additional Protocol I Art 58(a); CIHL (n 48) Rule 24. 93 CIHL (n 48) p 70.
94 Emily Crawford and Alison Pert, International Humanitarian Law (CUP 2018) 45. 95 Additional Protocol I Art 48; Additional Protocol II Art 13(2); CIHL (n 48) Rules 1 and 7. 96 Additional Protocol I Art 50(1) and (2); CIHL (n 48) Rule 5.
97 Additional Protocol I Art 50(1).
98 AP I, Art. 57(2)(a)(iii); CIHL (n 48) Rules 14 and 18. 99 See Chapter 3.1.
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effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at that time, offers definite military advantage’ by their nature,100 location,101 purpose102 or use.103 This definition is of customary status applicable in both international and non-international armed conflicts.104 If one of the factors is missing, the object may not be lawfully killed.105 Another element provided in Article 52(2) of
Additional Protocol I provides that a military objective must be assessed ‘in light of the circumstances ruling at the time’. As such, if intelligence at the time of targeting or an attack proves that the object is military in purpose, location and use such an attack is considered lawful.106
Article 52(2) of Additional Protocol I read in conjunction with Article 48 of Additional Protocol I provides that military operation may only be directed against military objectives. It would mean that parties to an armed conflict may only attack military objectives if there are no civilians inside or nearby.107 However, in line with the principle of proportionality, an attack where civilian harm cannot be avoided such an attack must be proportionate. As long as it is proportionate it is, therefore, not illegal.
Reading Article 52(2) of Additional Protocol I in conjunction with Articles 37, 41, 42, 43(2), 44(3) and 51(3) of Additional Protocol I the definition of military objectives includes combatants.108
3.4 Combatants
Combatants are the members of the armed forces of the belligerent parties to an international armed conflict. Expectations are medical and religious personnel assuming exclusively humanitarian functions.109 Another term used is ‘fighters’, which refers to members of armed forces and dissident armed forces, or other organised armed forces. It also refers to persons that are actively taking part in hostilities.110 This definition also includes members of armed forces
100 The ‘nature’ of an object refers to its inherent and intrinsic qualities. See Crawford and Pert (n 94) 168. 101 The ‘location’ of a military object refers to the military importance which is attached to the physical location
of a specific object. See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Brill 1987) [2021].
102 The term ‘Purpose’ refers to an object’s ‘intended future use, or possible use’. See Gary D Solis, The Law of
Armed Conflict (CUP 2016) 525.
103 The term refers to how something is utilised. See Michael N Schmitt, Charles HB Garraway and Yoram
Dinstein, ‘The Manual on the Law of Non-International Armed Conflicts With Commentary’ (2006) International Institute of Humanitarian Law < https://www.fd.unl.pt/docentes_docs/ma/jc_MA_26125.pdf> accessed 25 April 2020, 6-7.
104 CIHL (n 48) Rule 8; Schmitt, Garraway and Dinstein (n 104) 6. This has also been confirmed in Article 2(6)
of Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II, as amended on 3 May 1996) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (adopted 10 October 1980, entered into force 3 December 1998) 2048 UNTS 93 (Amended Protocol II to the CCW); and, Article 1(f) of Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999 (adopted 26 March 1999, entered into force 9 March 2004) 2253 UNTS 172.
105 Crawford and Pert (n 94) 169-70. 106 ibid 170.
107 ibid 167.
108 Crawford and Pert (n 94) 168.
109 Additional Protocol I, Art 43(2); CIHL (n 48) Rule 3. 110 Schmitt, Garraway and Dinstein (n 104) 4.
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belonging to a State.111 Accordingly, combatants are liable to attack, and as such, also targeting, due to their status as combatants.112 They further have the right to participate in hostilities.113
Furthermore, for the reason of protecting civilians, combatants are required under Article 44(3) of Additional Protocol I to distinguish themselves from the civilian population while engaged in hostilities, such as military operation, of armed conflicts.114 However, in the situations where a combatant cannot distinguish him- or herself from the civilian population, the combatant status may be maintained, provided that he or she carries arms openly during each military engagement; and, the time the person is visible to the adversary while engaged in military attack he or she is to participate in.115
Persons participating in levée en masse are also included within the meaning of combatant.116
Therefore, they can also be made subject to targeted killing. Levée en masse refers to situation where the civilians of the threatened territory spontaneously takes up arms in order to resist the invasion of an invading army.117 In a levée the requirement of having a distinctive sign or
organisation is not required, as the fundamental character is that it is spontaneous and unorganised by nature.118
Spies,119 mercenaries,120 civilians who takes direct part in hostilities and, prima facie,
employees of private military and security firms, do not fall within the category of combatants.121 In cases where a spy wears the uniform, then he or she is considered a combatant.122
If the targeted person is someone who is parachuting from an aircraft in distress he or she shall not be made object of attack during the descent according to Article 42(1) of Additional
111 ibid.
112 Crawford and Pert (n 94) 42.
113 Sandoz, Swinarski and Zimmermann (n 101) [1668]. 114 Additional Protocol I Art 44(3).
115 ibid.
116 Andrew Clapham and others, The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 300;
Crawford and Pert (n 94) 95; Geneva Convention I Art 13(6); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Geneva Convention II) Art 13(6); Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III) Art 4(A)(6); Laws and Customs of War on Land (Hague, II) (entered into force 21 January 1910) 32 Stat 1803; Treaty Series 403 (Hague Regulations II) Art 2.
117 ibid.
118 Crawford and Pert (n 94) 96.
119 A spy is someone who is ‘acting clandestinely or on false pretences, he obtains or endeavours to obtain
information in the zone of operations of a belligerent.’ See Art 29 of the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 (adopted 18 October 1907, entered into force 26 January 1910) AJIL, Vol 41, 1947, pp 248-249 (Hague Regulations IV).
120 A mercenary is someone who is taking direct part in hostilities and is ‘specially recruited locally or abroad in
order to fight in an armed conflict’. This person is motivated to take part in hostilities either due to private gain as promised by or in behalf of the Party to the conflict. Furthermore, this person is neither a member of the armed forces of the Parties to the conflict, nor is he or she a resident or national to the State that is Party to the conflict or to the territory that is controlled by a Party to the conflict. See Art 47 Additional Protocol I; and, International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (adopted 4 December 1989, entered into force 20 October 2001) 2163 UNTS 75, Art 1.
121 This derives from the rules set in Arts 43-4 in Additional Protocol I; See also Crawford and Pert (n 94) 98 ff. 122 Additional Protocol I Art 46; Hague Regulations IV Art 29.
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Protocol I.123 Article 42(1) of Additional Protocol I is of customary status in both international and non-international armed conflicts.124
Furthermore, the person who has parachuted from an aircraft in distress must be given time to surrender before made the object of attack upon landing, unless it is apparent that he or she is engaging in a hostile act.125 According to Article 42(3) Additional Protocol I airborne troops, just like paratroopers, are excluded from this provision, even if they themselves are bailing out of a distressed aircraft.126
Private military and security contractors are prima facie civilians. However, if they take direct part in hostilities, they lose their immunity from being targeted or attacked for as long as they take direct part in hostilities.127
Hence, combatants constitute lawful military objectives, if they do not have hors de combat status.128 As such, without the status of military objectives or combatants persons with hors de
combat status cannot be made subject targeted killing. A person with an hors de combat status
is someone who is in the power of an adverse party; someone ‘defenceless because of shipwreck, wounds or sickness’; or someone ‘who clearly expresses an intention to surrender; provided he or she abstain from any hostile act and does not attempt to escape.’129
The term ‘combatants’ does not appear in either Common Article 3 or Additional Protocol II. As such, the combatant’s status does not exist within a international armed conflict for non-State actors.130 Common Article 3 refers to ‘armed forces’ and Additional Protocol II refers to ‘armed forces and dissident armed forces or other organised armed groups’.131
3.5 Civilians directly participating in hostilities
Civilians enjoys protection in line with Article 51(3) of Additional Protocol I and Article 13(3) of Additional Protocol II unless they take direct part in hostilities. The meaning of taking direct part in hostilities is not provided in the law. However, the Commentary to Article 51(3) provides that hostile acts are acts which by their ‘nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.’132 Individuals who take part in hostilities
are therefore a legitimate target, as long as he or she takes part in the hostilities.133
Civilians in a non-international armed conflict are defined as persons who are not members of the armed forces of a State nor of organised armed groups who are party to the armed conflict. As such, they are entitled to protection against direct attack,134 unless they take direct part in hostilities according to Article 13(3) Additional Protocol II. This rule is of customary status
123 This was based on Article 20 of The Hague Rules of Air Warfare (adopted 19 February 1923), which did not
become legally binding.
124 CIHL (n 48) Rule 48.
125 Additional Protocol I art 42(2). 126 Additional Protocol I Art 42(3). 127 Crawford and Pert (n 94) 106. 128 CIHL (n 48) Rule 47. 129 CIHL (n 48) Rule 47. 130 Crawford and Pert (n 94) 96. 131 Art 1(1) Additional Protocol II.
132 Sandoz, Swinarski and Zimmermann (n 101) [1942]; See also, ICTR, The Prosecutor v Rutaganda (Judgment
and Sentence) ICTR-96-3-T (6 December 1999) [100].
133 ibid.
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applied in both international and non-international135 armed conflicts.136 Common Article 3 uses the term ‘active’ instead of ‘direct’. They refer however to the same concept and there is therefore no substantive distinction.137 The requirement is that there is ‘a sufficient causal relationship between the active participation and its immediate consequences’.138
According to the Guidance of the ICRC, three cumulative criteria amount to ‘direct participation in hostilities’, which are:
(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);
(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);
(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).139 The ICRC explained in regards of the threshold of harm that an ‘act must be likely to adversely affect the military operation 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.’140
Adverse effect is for example sabotage of military objects and other armed or non-armed activities which disturbs or restricts deployment, logistics and communication. It also includes capturing or otherwise establishment or exercise of control over military personnel, objects and territory to the detriment of the adversary.141
Civilians taking direct part in hostilities lose their protected status from targeted killing; however, they regain the protection upon cessation of such participation. High-level members of an organised group do not regain the protection status as long as they assume a continuous combat function. 142 The civilians also lose their protections during the travel to and from an act of ‘direct particpation in hostilities’.143 Furthermore, the ICTY defines ‘direct participation in
hostilities’ as ‘acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces’.144
The Israeli Supreme Court in the 2006 case of The Public Committee Against Torture in Israel
v The Government of Israel145 had to examine when civilians were deemed to be taking part in hostilities in order for the court to determine whether targeted killings were legal or not. The court identified several categories that constitute ‘direct part in hostilities’.146 The court in this
135 The rule derives especially from Common Article 3 to the Geneva Conventions and Additional Protocol II
Art 4. It is also recognised in Military manuals applicable to non-international armed conflicts. See for example
Defence Force Manual (1994) Manual on Law of Armed Conflict, Australian Defence Force Publication,
Operations Series, ADFP 37 - Interim Edition, 1994.
136 CIHL (n 48) pp 165–7. 137 ICRC (n 52) [525].
138 Sandoz, Swinarski and Zimmermann (n 101) [4787]. 139 Nils Melzer (n 80)1016.
140 ibid. 141 ibid 1017. 142 ibid 1034-5. 143 ibid 1031.
144 ICTY, Prosecutor v Strugar (Judgement) IT-01–42-A (17 July 2008) [176]-[9]. 145 Targeted Killings (n 2).
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case did not narrow it down to only include the person committing the physical act of attack, but to also include those who have sent the person, the persons who have decided upon the act and the persons who planned it.147
The IACHR found in Juan Carlos Abella v Argentina that civilians who take part in fighting, whether singly or as a member of a group, become legitimate military targets.148 They are therefore subject to direct individualised attack to the same extent as combatants. The attackers in the case, called ‘Tablada attackers’, hence lost their civilian status and the benefits derived from it due to the participation in a fight.149
3.6 Findings
In line with the principle of distinction civilians must be distinguished from military objectives, because military objectives are liable to targeted killing during an armed conflict. Military objectives include combatants even though the wording of Article 52(2) of Additional Protocol I indicates that it only refers to objects. Combatants refers to those who participate in an international armed conflict due to the law of international armed conflicts.
Mercenaries, civilians who takes direct part in hostilities and, prima facie, employees of private military and security firms, do not fall within the category of combatants. Spies do also not fall within such category if a uniform is not carried. Combatants of hors de combat status cannot be targeted. A person who has parachuted in time of distress in according with Article 42(1) of Additional Protocol I cannot be targeted without giving time to surrender and it is proven that he or she is engaged in hostilities.
Civilians who take direct part in hostilities and belong to an organised armed group are however, also liable to attack during a conflict and therefore lose their status as civilians. Lastly, the targeting must be proportional where the military advantage exceeds the harm it will effect on civilians. Before conducting a targeted killing, the one who conducts such killing must assess the attack in line with the principle of precaution. The principles apply no matter if it is an international or a non-international armed conflict.
147 ibid [127].
148 Juan Carlos Abella v Argentina (n 59). 149 ibid [178].
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4 Means and methods to conduct targeted killing
4.1 Principles to apply at the time of targeted killingThe principle of military necessity requires that the parties to an armed conflict only adopt the measures necessary to weaken the enemy and to achieve their surrender. This principle is not outlined in the Geneva Conventions nor the Additional Protocols,150 but the essence of the principle finds expression in the rule of proportionality.151 The concept of military necessity is
found in 1907 Hague Regulations Article 23(g) which provides that it is prohibited to destroy or seize the enemy’s property unless it is a necessity.152 As such, an operation of targeted killing
must only be adopted to weaken the enemy and to achieve their surrender.
An exhaustive explanation of military necessity can be found in the second world war crime case of US v List which provides:
Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money. In general, [...] [i]t permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war [...] but it does not permit the killing of innocent inhabitants for the purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.153
The principle of humanity does not have the same binding force as the other principles.154 The principle is, however, an essential counterbalance to the principle of military necessity. It further provides as a significant principle of constraint.155 The principle sets certain limits to the means and methods of warfare. It requires the humane treatment to those who have fallen into enemy hands.156 The principle of humanity is regulated in international armed conflicts in the Preamble to the Hague Convention II157 and Additional Protocol I Article 1(2).158 The principle is further mentioned in the Preamble to Additional Protocol II and Common Article 3, regulating armed conflict on non-international character.159
The principle of proportionality requires that the measure taken by the parties in an armed conflict is proportionate. The military advantage by a military operation, for example a targeted killing, must outweigh the damage it will cause civilian objectives (and objects).160 An attack
which is expected to cause incidental loss of civilian life, injury or damage civilians (or civilians objects), or a combination thereof and which will exceed the military advantage anticipated will
150 Solis (n 102) 277.
151 Crawford and Pert (n 94) 44.
152 Hague Regulations IV Art 23(g); See also Instructions for the Government of Armies of the United States
in the Field (Lieber Code) 24 April 1863 (adopted 24 April 1863) (Lieber Code) Art 15.
153 United States v Wilhelm List et al, IX TWC 757, US Military Tribunal Nuremberg (19 February 1948) 1253–
4.
154 Crawford and Pert (n 94) 47; Solis (n 102) 305.
155 Laurie R Blank and George P Noone, International Law and Armed Conflict Fundamental principles and
Contemporary Challenged in the Law of War (2nd ed, Wolters Kluwer 2018) 41.
156 Common Article 3 to the Geneva Conventions; Additional Protocol II Art 4(2); Melzer and Kuster (n 23) 18. 157 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations
concerning the Laws and Customs of War on Land. The Hague, 29 July 1899 (adopted 29 July 1899, entered into force 4 September 1900) AJIL, Vol 41, 1947, pp 248-249 (Hague Convention II) Preamble.
158 Additional Protocol I Art 1(2).
159 Additional Protocol II Preamble; Common Article 3. 160 See also chapter 3.1.
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be considered disproportionate. It is hence often understood in the negative.161 Moreover, the principle of distinction162 also prohibits certain methods of conducting hostilities.163
A targeted killing is subject to the principle of prohibition against unnecessary suffering prohibits means and methods of warfare which are considered to inflict unnecessary suffering or superfluous injury on combatants.164 Due to the lack of treaty definition on the meaning of ‘unnecessary’ suffering and ‘superfluous’ injury States have taken the approach that it requires a balance between consideration of military necessity and of humanity.165 Moreover, the ICJ argues that the prohibition against causing superfluous injury or unnecessary suffering makes it unlawful to cause combatants ‘harm greater than that unavoidable to achieve legitimate military objectives.’166 The general rule is that the injury or suffering caused by a particular
weapon must be ‘substantially disproportional to the military advantage gained’.167
Furthermore, the principle is to be applied to combatants rather than to civilians.168 In non-international armed conflicts the principle is found in the 1980 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects.169 Moreover, the Amended Protocol II to the Convention on Certain Conventional Weapons prohibits ‘the use of any mine, booby-trap or other device designed or of a nature to cause superfluous injury or unnecessary suffering’.170 Article 35 of Additional Protocol I is further considered as customary
international law applied in both international and non-international armed conflicts.171
The principle of discrimination or the prohibition on indiscriminate attacks is connected to the principle of distinction.172 Article 51(4) of Additional Protocol I defines indiscriminate attacks as attacks which are not directed at a specific objective, which employs means and methods which cannot be directed at a specific objective, or which employ means and methods which cannot be limited, and which are ‘of a nature to strike military objectives and civilians or civilian objects without distinction.’173 Launching an attack without aiming at specific military target, or treating a number of distinct military targets as a single target and carpet-bombing the sites as if they are on target, are examples of indiscriminate attacks.174 Therefore, an attack of targeted killing must be launched directly at the targeted individual to not cause an
161 Crawford and Pert (n 94) 44. 162 On this topic see chapter 3.1. 163 Tadic Case (n 51) [127].
164 Hague Regulations IV Art.23(e); Additional Protocol I Art 35(2) and Art 36; CIHL (n 48) Rule 70-1. 165 Melzer and Kuster (n 23) 110; CIHL (n 48) 240; See also St Petersburg Declaration and Lieber Code Art 14
which provides that ‘[m]ilitary 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’ and Art 16 which states that ‘military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton
devastation of adistrict’.
166 ICJ, Legality of the Threat or Use of Nuclear Weapons (n 19) [78] – [9]. 167 Solis (n 102) 272.
168 Crawford and Pert (n 94) 46.
169 1980 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May be
Deemed to be Excessively Injurious or to Have Indiscriminate Effects (adopted 10 October 1980, entered into force 2 December 1983) 1342 UNTS 137 (Conventional Weapons Convention).
170 Amended Protocol II to the CCW Art 3(3). 171 CIHL (n 48) Rule 70.
172 Crawford and Pert (n 94) 43. 173 Additional Protocol I Art 51(4). 174 Crawford and Pert (n 94) 43, 173.
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indiscriminate attack. An attack which is considered as indiscriminate is hence also in violation of the principle of distinction.175 It is, however, to be distinguished from the principle of
distinction. An indiscriminate attack does not intentionally seek out civilians to target but it does not consider whether civilians might be injured or killed in an attack.176
The ICJ has concluded that the prohibition of use of indiscriminate means and methods is important and stated that parties to a conflict may not ‘use weapons that are incapable of distinguishing between civilian and military targets’.177 This principle is a customary norm
applicable in both international and non-international armed conflicts. The principle is not mentioned in Additional Protocol II, but evidence of its customary status can be found in Amended Protocol II to the Convention on Certain Conventional Weapons.178 The customary status of the principle has furthermore been established by the ICJ which states that certain types of weapon are prohibited from being used due to the ‘indiscriminate effect on combatants and civilians’.179
4.2 Unlawful use of weapons
The principle of prohibition to inflict unnecessary suffering or superfluous injury restricts or prohibits the use of certain types of weapons which are considered excessively cruel regardless of the circumstances. Blinding laser weapons, expanding bullets and weapons that injure by means of non-detectable fragments are some examples of such weapons and can therefore not be used to conduct a targeted killing.180
Common Article 3 to the Geneva Conventions and Additional Protocol II Article 4(2) provides a list of acts which are prohibited. Murder, mutilation and cruel-treatment are some of the prohibitions mentioned in the Articles.181 These are further of customary status applied in international and non-international armed conflicts.182 Common Article 3 provides that all persons are to be treated humanely and non-discriminatorily.183 However, it does not contain any general provision regulating the use of certain weapons in non-intentional armed conflicts nor does Additional Protocol II contain such provision.184
The principle of prohibition to inflict unnecessary suffering or superfluous injury in IHL is not assessed from a purely medical point of view.185 A medical group of experts has stated that it is impossible from a medical view to objectively define suffering or to give absolute value permitting comparison between individuals due to enormous individual variations. The pain threshold varies between individuals and it can also vary for the same person at different points in life.186
175 ibid 43.
176 Solis (n 102) 537; Crawford and Pert (n 94) 173.
177 ICJ, Legality of the Threat or Use of Nuclear Weapons (n 19) [257]; See also Blank and Noone (n 155) 512. 178 Amended Protocol II to the Convention on Certain Conventional Weapons Art 3(8)(a).
179 ICJ, Legality of the Threat or Use of Nuclear Weapons (n 19) [243]. 180 Melzer and Kuster (n 23) 110.
181 See ICTY, Prosecutor v Kupreškic´et al (Judgment) IT-95-16-T (14 January 2000) [525]. 182 CIHL (n 48) Rules 87-105.
183 Michelle Mack, ‘Increasing Respect for International Humanitarian Law in Non-International Armed
Conflicts’ (2008) ICRC
<https://www.icrc.org/sites/default/files/topic/file_plus_list/0923-increasing_respect_for_international_humanitarian_law_in_non-international_armed_conflicts.pdf> accessed 1 May 2020, p 7.
184 Additional Protocol II Preamble; CIHL (n 48) Rules 70 and 71. 185 ibid.
186 ICRC, Report on the Second Session of the Conference of Government Experts on the Use of Certain
