The FBI used the photograph of the Spanish politician Gaspar Llamazares to construct the photo of how Osama bin Laden might look like today. http://news.bbc.co.uk/2/hi/americas/8463657.stm

Imagine the following two scenario’s.
(1) Llamazares travels to Pakistan on holiday and gets killed by a drone, because the operator mistakenly thinks he is bin Laden.
(2) In the second scenario U.S. asks Spain to deliver Llamazares and Spain refuses it. U.S. sends a drone and kills him in Madrid, during a wedding party where thirty other party-goers die.

Does the U.S. violate the human rights of Llamazares and/or of the party-goers, or can U.S. just kill anybody under article 51?

Thanks for the comments, as always they are much appreciated.

I agree entirely that IHL may be relevant in my scenario 1. What I tried to do, however, was to postulate it away, so that we could see what self-defense alone would be capable of doing if IHL for some reason wouldn’t apply. That’s because the essence of Ken’s (and Harold Koh’s) independent self-defense argument is that operates when IHL does not.

Now, as for the bigger question as to whether IHL would indeed apply in my scenario 1, if we don’t postulate it away – well, I think that the issue is certainly complicated enough that we can’t be sure that IHL would apply in every conceivable version of this scenario.

First, let me just agree on your appraisal of the law of self-defense, armed attack etc – even though, as you know, many international lawyers would disagree on some of these elements. But even if we accept that a terrorist attack on state A by a non-state actor operating from state B would qualify as an ‘armed attack’ for the purpose of Art. 51 of the Charter, and create for A an entitlement to self-defense, this would not immediately or necessarily create a state of ‘armed conflict.’

In an anticipatory situation, there would be no conflict until the hostilities actually commenced. Further, unless the non-state actor was actually acting on behalf of state B, there couldn’t be an IAC, at least not until state A actually responded by force – but even then the existence of an IAC would be debatable. A NIAC, on the other hand, would require protracted armed violence, and this is something that we simply might not have, if both the attack and the response were limited.

So, again, even though I am not at all disputing that IHL may be relevant, I certainly don’t think it (like self-defense) would cover ever conceivable scenario. And even if it did, that doesn’t mean that human rights law would necessarily be completely displaced by virtue of lex specialis or whatever. In particular, it might well be that human rights law would impose a don’t-kill-if-you-can-capture requirement, something that IHL simply does not do, whether in IACs or in NIACs (unless you buy into some of the ICRC’s statements in the recent DPH study).

I’m hesitant to get too far into this as I have not read all of your and Ken’s excellent postings. But I suppose my biggest question about your posting is your assumption that scenario 1 is outside of any armed conflict. I’ve just completed work in an expert group for the Dutch government, which will soon publicize a set of recommendations on international law and terrorism that will include issues of the use of force. It was our group’s view that (contra the ICJ in the Wall case) armed attacks can be committed by non-state actors even without those attacks being attributed to the state, and that in such a case the victim state has the right of self-defense against those actors on the territory of other states. In that situation the entity committing the attack and its members (yes, I realize that can get tricky) are no more protected by human rights law than are those committing a state-to-state armed attack, i.e., we interpret human rights law to allow killing, if necessary and proportionate, of the members of the attacking force.

Now, the only difference in your scenario is that the attack has not yet taken place. But if we agree, as Kofi Annan’s High Level Group stated, that bona fide anticipatory (not preventive) self-defense is lawful, then human rights law would not seem to do anything more in the scenario where the attack is imminent.

You would have a point if the group were planning something that would not amount to an armed attack, but that’s a different question about the scale of a terrorist incident that would amount to an armed attack. And there is the question about whether the self-defense is really anticipatory if the attack is not imminent. These are all points in favor of Alston’s concerns. On the other hand, a state that has already been attacked has the right of self-defense to put an end to the attack, which, as you know, is not a tit-for-tat calculation. So again, it may not be so easy to simply assume no armed conflict.

This position is not a license to engage in targeted killings globally. The role of the state from whose territory the attacks (or imminent attacks) occur is absolutely critical, self-defense can be used in its territory (i.e., without its consent) only if it is completely unwilling or unable to do anything to stop the attackers.

Where there is no ongoing or imminent armed attack, self-defense drops out of the picture — although one might justify TKs based on the existence of a non-international armed conflict where the host state (on whose territory the NIAC is taking place) has consented to the involvement of the state carrying out the TKs and the TKs really are carried out as part of the NIAC. This seems to be the strongest basis for some of the US attacks in Afghanistan and Pakistan.

If I’m missing your argument, please correct me.

One should not let Ken beg the question or drive you in false dilemma’s. For instance there are other scenario’s possible:

(1) The drone attack is based on false information. Take for instance the Israeli killings of the Moroccan waiter Ahmed Bouchiki in Lillehammer, mistakenly taking him for Ali Hassan Salameh. Or the so numerous Guantanamo inmates that were sold by others as Al Qaeda just to make a buck.
(2) The killed person is not a terrorist but a brilliant intellectual that discloses unwanted information to the press. Like the regular bombing of Al-Jazeera offices all over the world.
(3) The killed person is not a terrorist but an Iraqi resistance fighter. Since the Iraq invasion was not an act of self-defence it is the resistance fighter the one that acts in self-defence.
(4) It was not a targeted killing but just the bombing of a wedding party killing tens of civilians and no terrorist whatsoever.

The number of possibilities is unending, therefore thinking only about the four would make the argument a false dilemma. And assuming that the US acts in self-defence is begging the question. It is only an international court that may decide that it is really self-defence and not the US itself, because no one should be the judge in her own case. Nuremberg judges made it clear: “It was further argued that Germany alone could decide, in accordance with the reservations made by many of the Signatory Powers at the time of the conclusion of the Briand-Kellogg Pact, whether preventive action was a necessity, and that in making her decision final judgment was conclusive. But whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.”

And this court should allow individuals like Mephistopheles or his surviving relatives sue US and challenge its legal arguments. If the US does not want to cooperate in instituting such an international court, the same argument is valid against it. Mephistopheles or his spouse are free to declare themselves a country or whatever, send a drone to kill Obama, claiming that he is a terrorist planning to detonate an nuclear device in Teheran. They are free to bomb a wedding party in US arguing that they killed a terrorist and that they took all the precautions possible, but they still were entitled to do it in self-defence. If whatever US says goes, it is the same for Mephistopheles. Whatever Mephistopheles says goes.

Yes, we are in perfect agreement on the primary v. secondary rule point – though that distinction can tend to collapse, as the example of self-defense itself show. My short answer to you is ‘no’ – if a killing is ‘arbitrary’ for the purposes of Art. 6 ICCPR, or is not ‘necessary’ for the purposes of Art. 2 ECHR, then the secondary rule of necessity would NOT be able to preclude the wrongfulness of these violations, just like it wouldn’t be able to do that with regard to (most) violations of IHL.

As for effort and money, I agree – this is the crux of the matter in assessing whether capture of a dangerous person is a feasible option. How should we e.g. value the lives of the police officers themselves, which might be put at risk in any capture action? There is no simple answer to this question, because it involves weighing interests which are themselves hardly commensurable. But it is the same ‘equation’ that we are doing in a domestic, law enforcement context, and that same ‘equation,’ if a bit tweaked or adjusted, could apply in an extraordinary and extraterritorial context. I concede that it is difficult and under-determined, but I so no other viable alternative.

Euan,

Your point is well taken. I would respond by saying that the evaluation of the lawfulness of jus ad bellum self-defense is usually taken at a much higher degree of abstraction. I am not aware of any actual case or example where the question asked in the jus ad bellum necessity/proportionality analysis is whether the individual being targeted could be captured or incapacitated, rather than killed, which is the principal question that human rights law would ask.

Likewise, if you take my scenario (2) as your starting point, and Pakistan were to give its full consent to the US to do all that it wanted to do on Pakistani soil, thereby taking the jus ad bellum considerations out of the picture, we would still need to venture into human rights analysis to see whether the killing of a particular individual was lawful or not.

My view remains that, given that it is now accepted that individuals are capable of attacking the state, most states would assume that their right of self-defence overrides the human rights of the individual in question; but, as you note, this should be read into the rights themselves. I would not think, for example, that self-defence could found a defence to torture. Your dispute, as I understand it, is that this is an improper deployment of the doctrine of self-defence. I see the point, but I’m not sure how important it is.

Specifically, it seems clear that where a state can genuinely demonstrate that the extrajudicial execution of an individual is a necessary and proportionate response to an imminent attack (the test for self defence) it will also eo ipso have passed the “non-arbitrary” muster of Art. 6 ICCPR (although of course the latter is not exhausted by the former; indeed, I suspect it is in many ways more permissive). Therefore, even if your doctrinal arguments are accepted, those who seek to argue that self defence can justify these kinds of killings will not in practice need to make any further arguments in order for their actions to be legal under international human rights law. In this regard, the use of the term self-defence is at worst a close analogue and a convenient shorthand.

Is a hypothesis conceivable of a situation in which the test for self defence would – were it applicable – be met, but the killing would be found to be arbitrary under Art. 6 ICCPR?

of course certain tests are already embedded in the rule – this is true of many rules of international law, not just human rights ones. But one could argue that those tests are part of the primary rules and define the boundaries of the rule, and are thus structurally different from the secondary rules on circumstances that preclude wrongfulness when the rule has been violated…

The point may be too thin, but it is worth trying to explain it to see if it holds. So, you have Art. 6 ICCPR which prohibits only ‘arbitrary’ deprivations of life, and Art. 2 ECHR which permits deprivations of life when they are ‘absolutely necessary’ for the reasons enumerated. Very well. In both cases, these ‘inbuilt’ tests will lead you to saying that a state has breached its obligation if it does not meet them. So far, so good.

The further question, to which I really have no answer, is whether Article 25 ARSIWA can be employed AFTER you have applied the relevant tests and concluded there has been a (prima facie) violation. In other words, if it provides ANOTHER, *ultima ratio* test of necessity.

Let me put this another way. Articles 6 ICCPR and 2 ECHR define the boundaries of the right to life under the respective treaties. These are the obligations, and the ‘arbitrariness’ and ‘absolute necessity’ tests answer the question “Has state x violated Article 6 ICCPR?”. They are PRIMARY RULES. Article 25 ARSIWA, on the other hand, does something different. It is a SECONDARY rule saying that, in the very exceptional circumstances referred to therein, what would otherwise be a breach of Article 6 ICCPR or 2 ECHR is not so.

Now I am perfectly aware that this all ultimately rests upon the application of Article 55 ARSIWA on Lex Specialis: you will probably argue that International Human Rights Law is the start and the end of the matter because it provides for these circumstances precluding wrongfulness already (as you say, the test is in-built); others might argue otherwise. I am never very convinced by ‘monadic arguments’ on the completeness of international human rights law when it comes to international responsibility, but I can obviously be proved wrong!

Finally, you are right that the right not to be tortured is more absolute than the right to life, and that there is (some) ratio to this. What still baffles me is the idea that in the XXI century the *only* available option to incapacitate someone might have to be killing them rather than capturing them in the type of scenario described. Surely it is a question of how much effort (and money!) you put into trying to incapacitate someone without killing them? There must be some alternative to going back to the middle ages and ‘extra-judicial’ methods which are more apt to the Sicilian mafia than to a state. But that’s not for us to decide.

F.