EJIL: The Podcast! Episode 12 – “No Licence to Kill”

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In this episode, Marko Milanovic, Philippa Webb and I discuss the legal issues that arise from targeted killings conducted by states outside their territory. We begin with a discussion of the recent blockbuster judgment of the European Court of Human Rights in the case concerning Alexander Litvinenko (Carter v. Russia, no. 20914/07, 21 September 2021). In that decision, a Chamber of the Court found Russia responsible for violating the right to life of Litvinenko, the former Russian spy who was poisoned with radioactive polonium in London in 2006. We talk about how the Court dealt with the attribution of the killing to Russia and then explore the extraterritorial application of human rights treaties obligations – a question on which many courts and treaty bodies have given inconsistent answers.

The podcast then moves on to the legal issues that would arise if the courts of the territorial state were to seek to exercise jurisdiction over the individuals accused of committing the killing or over the state that sent them. In our conversation we explore whether those individuals would be entitled to the immunity from foreign criminal jurisdiction which those who act on behalf of a state are normally entitled to (immunity ratione materiae/official act immunity). Since the acts in question occur on the territory of another state, we discuss whether there is an exception to such immunity, in criminal cases, for acts which occur on the territory of the forum state. This is a question that has been explored in the ongoing work of International Law Commission on immunity of state officials from foreign criminal jurisdiction. It was also the subject of decision in the English High Court in Khurts Bat v Investigating Judge of the German Federal Court, [2011] EWHC 2029 (Admin). A similar question about immunity with respect to acts that occur on the territory of the forum state would also arise if an attempt were made to sue the state that ordered the killing in the domestic court of the territorial state with the issue there being whether there is a “territorial tort” exception to state immunity. 

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For posts discussing the extraterritorial application of human rights obligations see here, including Marko’s post commenting on the Litvinenko judgment. And for posts on various legal issues related to targeted killings see here.

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