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Home International Humanitarian Law Archive for category "Targeted Killings"

English Court of Appeal Decides Al-Saadoon Case on the ECHR’s Application Extraterritorially and in Armed Conflict

Published on September 14, 2016        Author: 

Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.

The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.

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Missing the Mark: Reprieve, ‘Kill Lists’ and Human Rights Advocacy

Published on September 6, 2016        Author: 

Deception, lies, murder, conspiracy. This is the stuff of crime novels. It is also the story spun in a report published earlier this year by Reprieve, a human rights charity active in the UK and the US. In its report, entitled ‘Britain’s Kill List’, Reprieve claims to reveal shocking proof that exposes the involvement of the British Government in a global assassination project:

On September 7th, 2015, Prime Minister David Cameron came to Parliament and announced a “new departure” for Britain, a policy of killing individuals the Security Services and the military do not like, people placed on a list of individuals who the UK (acting along with the US and others) have identified and systematically plan to kill. The mere admission that there is a Kill List certainly should, indeed, have been a “departure” for a country that prides itself on decency. Unfortunately, it was not a “new departure” at all, as we had been doing it secretly for more than a decade.

Reprieve alleges that the British Government has been complicit in preparing and executing a ‘kill list’ for years, that such a ‘kill list’ is incompatible with the rule of law and that the Prime Minister has deceived the public about Britain’s involvement in this ‘disturbing’ practice. These are serious allegations, which merit a response, even a belated one. All the more so, since on closer inspection they reveal an astonishing appetite for sensationalism and disregard for accuracy.

Who is deceiving Parliament and the public?

On 7 September 2015, former Prime Minister David Cameron announced to the House of Commons that the Royal Air Force carried out a drone strike on 21 August 2015 inside Syria against Reyaad Khan, a British national and member of ISIL. The strike killed Khan and two other members of ISIL. By declaring that the operation was a ‘new departure’ for Britain, Reprieve claims that the Prime Minister has deceived Parliament and the people (pp. 5 and 7), given that this was not the first occasion the UK has acted upon a ‘kill list’. Indeed, much of Reprieve’s report is preoccupied with demonstrating that the UK has contributed to a ‘kill list’ well before the Prime Minister made his announcement to Parliament. Read the rest of this entry…

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New Drone Report by UK Parliament’s Joint Committee on Human Rights

Published on May 10, 2016        Author: 

Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.

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Eye in the Sky

Published on May 9, 2016        Author: 

Last week I had the pleasure of seeing the new movie starring Helen Mirren and the late great Alan Rickman, Eye in the Sky. I was simply floored. Not only is Eye in the Sky an example of film-making at its best, with intelligent pacing and stellar acting throughout, it is also one of the most sophisticated treatments that I have seen of the legal, policy and moral dilemmas that people who make targeting decisions are faced with. It even has words like necessity and proportionality in it, and generally used correctly at that! I could totally envisage a vigorous classroom discussion of the various issues raised after every ten minutes of the movie. I just couldn’t recommend it more for anyone even remotely interested in the legal and moral aspects of targeted killings by drones.  *MINOR SPOILERS FOLLOW*

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Targeting Child Soldiers

Published on January 12, 2016        Author: 

Despite the numerous volume on child soldiers in legal literature over the last few decades, very little has been said on targeting child soldiers. It seems to be something international lawyers would rather not talk about. The fact that legal literature doesn’t say much about targeting child soldiers doesn’t mean that no such practice exists, or that soldiers haven’t discuss the matter. In 2002, the US Marine Corps Warfighting Laboratory organised a ‘Cultural Intelligence Seminar’ on the implication of child soldiering for US forces. One trigger for that discussion was the fact that the very first US soldier killed in Afghanistan reportedly was a Special Forces Sergeant shot by a 14-year-old boy. The year before, in Sierra Leone, a squad from the Royal Irish Regiment was taken prisoner by a group consisting mostly of armed children called the West Side Boys, as the British soldiers were hesitant to open fire. After they had been held hostage for two weeks, an assault was launched by an SAS unit supported by suppression fire from helicopters, leading to between 25 to 150 dead among the West Side Boys. Finally, during the civil war in Sri Lanka, a Government aircraft bombed what was deemed an LTTE training camp, killing a reported 61 minors, mostly girls. Although the LTTE was widely known to use child soldiers, and the specific facts were contested, the Sri Lanka Government was adamant that if a child took up arms, then he or she could be targeted and killed.

The phenomenon of child soldiers remains widespread, and their activities does include direct participation in hostilities. It is imperative that international humanitarian law provide guidance as to what opposing forces can do if they are confronted with that reality. In this piece, I suggest that there are elements in international humanitarian law that support adapting a child-specific approach to targeting. Under this approach, the fact that a potential target is a child should prima facie raise a doubt as to whether he or she is targetable. Although the doubt may be dissipated in light of available facts, overcoming the presumption of civilian status might require more than would be the case for an adult. In addition, even if a child is deemed targetable, the allowable means and methods must nevertheless reflect the protected status of children in international law. Read the rest of this entry…

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Human Rights and the Targeting by Drone

Published on September 18, 2015        Author: 

The UK government has justified its targeting and killing of three people who were engaged in hostilities as part of the ‘Islamic State’ forces by relying on international law. This is to be applauded, as compliance with international law is in the interest of long-term peace and security in the UK and in the international community, and on the rule of law. It does not necessarily mean that their justification of self-defence, or even collective self-defence, is accurate or sustainable once the full facts are known.

However, even if the UK argument of reliance on self-defence is in accordance with a part of international law, that is not sufficient to conclude that the targeted killing is in compliance with all of international law. It only means that the armed force by the drone could be used lawfully by the UK in Syrian territory. There are at least two other areas of international law that are also relevant and should be complied with: international humanitarian law (IHL); and international human rights law (IHRL). The former concerns the lawfulness of force within the armed conflict once it commences, and the latter applies at all times. I will focus here on the application of IHRL, including its interaction with IHL.

IHRL does not allow the targeting of individuals to kill them except in strictly limited circumstances. This was confirmed by the UN Special Rapporteur on Arbitrary Killings in his 2013 report Read the rest of this entry…

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On Preventive Killing

Published on September 17, 2015        Author: 

If we wait for threats to fully materialize, we will have waited too long. We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path to action. And this nation will act.

George W. Bush, 17 September 2002.

It seems to me that there are two different ways of understanding the targeted killing of UK citizens Reyaad Khan and Ruhul Amin by a Royal Airforce-piloted drone on 21 August 2015, in Raqqa, Syria. (Khan was the target of the strike, and Amin was also killed by it. Both Khan and Amin are described as “ISIL fighters.”)

The first poses some difficult constitutional and public law questions for the UK government, but does not require any kind of radical re-interpretation of international law governing the use of force.

The second way of understanding the strike amounts to a sea change in the UK’s legal position, and indeed aligns it with several US legal positions in the “war on terror” which, hitherto, no European state has formally embraced.

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UN Human Rights Council Panel Discussion on Drones

Published on October 1, 2014        Author: 

Last week the United Nations Human Rights Council convened a panel to  discuss the use of armed drones (remotely piloted aircraft) in counter-terrorism and military operations in accordance with international law. The panel was convened as part of the Human Rights Council’s 27th regular session, which finished last week.  The session held last Monday took the form of an interactive dialogue between a panel of experts, members of the Human Rights Council (i.e States), as well as observers. I had the honour to be invited to moderate what turned out to be a very interesting panel discussion. The panellists were Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions; Ben Emmerson QC, UN Special Rapporteur on human rights and counter-terrorism; Shahzad Akbar, Legal Director, Foundation for Fundamental Rights; Alex Conte, Director of International Law and Protection Programmes, International Commission of Jurists;  and Pardiss Kebriaei, Senior Attorney, Centre for Constitutional Rights. Flavia Pansieri, the UN’s Deputy High Commissioner for Human Rights opened the discussion.

There was a really interesting exchange of views, not only amongst members of the panel but also between states and NGOs. Over 20 states spoke, including all the permanent members of the UN Security Council, as did the ICRC. There was discussion of the entire range of legal issues relating to targeted killings in counterterrorism and other operations. In particular, there was consideration of the applicable legal framework regulating the use of armed drones with much attention given to the applicability of international human rights law and international humanitarian law (IHL). In this context there was discussion of the substantive legal issues relating to the determination of the applicable legal framework – such as the classification of situations of violence (for the purpose of determining the applicability of IHL) and the extraterritorial application of the right to life. However, perhaps the most significant disagreement between states related to the question of institutional competence for discussing and monitoring compliance with the law. In a divide which appeared to mirror the range of views as to whether norms of human rights or IHL constitute part of, or the main applicable legal framework, some states (like the US, the UK and France) insisted that the Human Rights Council was not an appropriate forum for discussion of the use of armed drones whereas many other states, observers and panellists insisted that the Council was such a forum.

A significant part of the discussion also covered the applicable human rights  and IHL rules that apply to the use of drones. The panellists spoke about the right to life as it might apply to drones; the principles relating to targeting under IHL; and other potentially applicable human rights, such as the right to a remedy.  A key part of the discussion was about accountability with respect to the use of drones. All the panellists spoke about the obligations of states under IHL and human rights law to conduct investigations in cases where there was a credible allegation of violations, as well as the obligations relating to transparency with respect to drone operations. This issue was also raised by a number of states with some seeking examples of best practices that may be employed with respect to disclosure of data relating to drone operations.

A press release summarising the discussion is available here and a video of the entire panel discussion is available on UN Web TV. Christopher Rodgers of the Open Society Foundations has also written an excellent report of the session on Just Security. The Office of the High Commissioner for Human Rights will submit a report on this discussion to the Human Rights Council’s 28th regular session which will take place early in 2015. At this point, the matter will return to the Council for further consideration.

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The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

Published on November 6, 2013        Author: 

Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. Read the rest of this entry…

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Obama’s Counter-Terrorism Speech: A Turning Point or More of the Same?

Published on May 27, 2013        Author: 

Gleider I Hernández is Lecturer in Law, University of Durham. The author is grateful to Dr Philippa Webb, Professor Michael Schmitt and Thomas Liefländer for their exchanges of views on this topic.

The 2012 revelation that United States President Barack Obama was immersed in the authorisation and execution of targeted drone strikes by the CIA against suspected terrorists in Afghanistan, Pakistan, Yemen and Somalia was, to put it mildly, important. Shielded from open scrutiny from Congress or the judiciary, and operating on the margins of the public eye, the ‘kill list’ of candidates has resulted in an astonishing number of drone strikes, with the Bureau of Investigative Journalism estimating between 240 and 347 people have been killed in Yemen since 2002, with a further 2541 to 3533 killed by some 278 CIA drone strikes in Pakistan.

As such, three developments in the last fortnight go some way to lifting the veil of secrecy that had heretofore surrounded the US’ weaponised drones program (on which I was asked to comment on the BBC World Service last Friday, linked here):

  1. The 22 May letter from Attorney-General Holder disclosing certain information about the US citizens who have been killed by US counter-terrorism operations outside areas of active hostilities.
  2. President Obama’s 23 May speech at the National Defence University, which has been described as the most important speech on counter-terrorism policy since 2001.
  3. The simultaneous release of a Fact Sheet entitled ‘US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’ (and referred to by Obama as the “Presidential Policy Guidance” (PPG)). This document sets out a number of principles with respect to the United States’ conduct of counterterrorism operations.

Ben Emmerson QC, UN Special Rapporteur on Human Rights and Counterterrorism, has suggested Obama’s speech ‘affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay’ (for the full press release, see here.)

Although there is much truth to Emmerson’s cautious endorsement of the principles contained in Obama’s speech, there are important policy considerations that have been made public and deserve further scrutiny. Moreover, when taken together, Obama’s speech and the Presidential Policy Guidance represent a claim to the normalisation or even a ‘banalisation’ of the practice of targeting terror suspects at large.

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