Targeted Killing of Suspected Terrorists During Armed Conflicts: Compatibility with the Rights to Life and to a Due Process?

• Author: Celso Eduardo Faria Coracini
• Position: Master (University of Sao Paulo), Ph.D.-candidate (University of Vienna) and Research Assistant at the University of Graz. This paper was selected for presentation at the XVth International Congress on Social Defense (Toledo, Spain, September 2007).
• Pages: 34-45

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1. Introduction

International humanitarian law (‘IHL’) and human rights law (‘HRL’) share a common basis, which is “the recognition of the dignity of the person”.¹ Such a statement, notwithstanding all that has been written about the interplay between these two bodies of law,² seems at odds with the fact that the law of armed conflict contains rules on situations and circumstances in which fighters may be lawfully targeted, and in which collateral damage in the form of civilian casualties is an acceptable consequence of military action guided by considerations of necessity and proportionality.

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It is clear that IHL is the result of a compromise. Obviously, its protective character does not stem from the implied authorisation to kill in wartime, or from the right to detain enemies until the end of the hostilities, which is customarily inherent to the very concept of warfare. The humane face of IHL derives from the regulation of means and methods of warfare, as well as the protection of people who are not or are no longer taking direct part in the hostilities, including the definition of categories of persons that may be lawfully targeted and the situation in which this is allowed.³ This is the essence of the jus in bello. To affirm the dignity – unchanged in times of belligerency – of all persons, civilians and combatants of the different parties to a conflict, contributes to the clarification of both legal regimes’ protective character, and to the legal inadmissibility of loopholes of legal protection.

Let aside the lack of broad agreement over a definition of terrorism, an important assumption to be made preliminarily refers to the application of IHL to terrorism, which shall be demystified and examined on legal grounds. First, not every terrorist act is committed in the context of an armed conflict, and therefore humanitarian law shall not be presumed to apply to every alleged situation of terrorism. Furthermore, it shall not be taken for granted that every military action amounts to an armed conflict triggering the application of IHL, even if it is often the case.⁴ Finally, military action, whether or not in the context of an armed conflict, is neither necessarily a lawful nor an adequate response to the commission of acts of terrorism, which most often are adequately dealt with by law enforcement agents.⁵

There is, undoubtedly, a factual background for the discussion about the lawfulness of targeted killings. It is reported that “[s]ince 9 November 2000 the Israeli Defence Force (IDF) has actively pursued a policy of deliberately targeting those alleged to have carried out, or to have planned to carry out, violent attacks against Israelis”.⁶ In the United States, Executive Order n. 12333, drafted in the mid-1970s, prohibits the act of state-sponsored killing,⁷ but many voices since thePage 36attacks of 11 September 2001 “contend that the ability to eliminate key targets will be a necessary tool [… for the USA] to prosecute its new war against terrorism”.8 The mentioned Executive Order has not prevented the unlawful practice of targeted killing, which, however, has not always been acknowledged as such by the government.⁹ Nonetheless, this paper will as much as possible not discuss specific country situations, and even less the targeting of specific persons, but focus on the discussion of the legal framework in which targeted killings take place, and its compatibility with rights enshrined in applicable IHL and HRL norms.

The neutral term “targeted killing” will be preferred to the expression “targeted assassination”, because assassination is generally understood as the killing of a particular individual for political reasons.¹⁰ The more general expression “targeted killing” includes assassinations, but may also refer to the unlawful killing of protected persons, no matter their political position. It is “a lethal attack on a person that is not undertaken on the basis that the person concerned is a ‘combatant’, but rather where a state considers a particular individual to pose a serious threat as a result of his or her activities and decides to kill that person, even at a time when the individual is not engaged in hostile activities”.¹¹ The objective of this paper is to evaluate in which circumstances killing is unlawful during an armed conflict.

For this purpose, the paper will first examine general criteria for determining the IHL categories of persons under which suspected terrorists may fall. Then, the relationship between the regimes of human rights law and of humanitarian law will be briefly discussed, with a view to asserting the applicable legal regime during an armed conflict. The paper will subsequently focus on the situations in which so called terrorists may be legitimate targets, and thus killed in the context of military operations, in an attempt to define the scope of the right to life in times of armed conflict. Finally, the matter of targeted killings will be analysed through the lenses of the right to a fair trial, taking into account the different standards of protection made available by IHL.

2. Defining “suspected terrorists” and the principle of distinction of combatants and civilians

The basic customary rule of distinction obliges combatants to distinguish themselves from civilians, who should not be targets of military attacks. The same rule obliges the parties to a conflict to distinguish between military and civilianPage 37objects. In this context, whereas attacks against civilian objects are forbidden, the use of violence against military objectives would need to be commensurate with the purpose of obtaining military advantage.¹²

Most importantly, this does not mean that the treatment of persons is similar to that of objects. There should not be an identification of combatants with the notion of military objects, to which attacks shall be limited (Art. 52(2) AP I).¹³ Doswald- Beck very consistently elaborates on the risks that the confusion of these intrinsically distinct concepts would entail, recalling that the attack of an object “does not require that the object uses, or is on the point of using, force, but only whether it effectively contributes to the military action of the enemy and attacking it gives one a direct military advantage”.¹⁴ The attack on persons, in particular those that do not classify as combatants, is only justified when they directly participate in hostilities. This has to be seen against the general prohibition on attacks against the civilian population (Article 51 AP I and Art. 13 AP II¹⁵).

The designation of “suspected terrorist” poses a troubling initial problem, which arises less from the rather vague expression “terrorist” than from the qualification as “suspected” of being a terrorist. Even without an internationally agreed definition of terrorist acts,¹⁶ which may be prosecuted and punished on the national level under various criminal designations, such as murder, taking of hostages, crimes against humanity and, in the context of an armed conflict, war crimes,¹⁷ one may concede that it involves “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” (Articles 51(2) AP I, and 13(2) AP II).¹⁸ In this sense, it is useful to bear in mind that terrorists are usually seen as persons who do not abide by rules on conflict situations, and do not accept any kind of constraint on their methods: they “do not spare ‘civilians’, but apply violence indiscriminately and without any concern whatsoever for persons who are foreign to the motives behind the act of terrorism”.¹⁹

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The difficulty raised by the term “suspected terrorist” lies in the assumption of an uncertified criminal charge, not based on disclosed evidence, which cannot and is not meant to be challenged before a competent tribunal, unless the alleged terrorist is brought before court. All that can be known a priori about a suspected terrorist, in the context of targeted killings during an armed conflict, is that he or she may be either a person falling under the category of a combatant (a legitimate target as long as he is not hors de combat),²⁰ or of a civilian.²¹ In most cases involving targeted killings by state authorities, the victims are civilians, most of whom may have taken part in hostilities, or combatants who fail to meet the requirements necessary to be entitled to the prisoners-of-war status (Art. 44(4) AP I).

The distinction is somehow blurred in situations of internal armed conflicts, in which IHL does not attribute a formal status to rebels, in order to prevent any kind of international recognition to the fighters.²² In this case, most of the rules on the use of lethal force and the treatment afforded to captured rebels would have to be filtered through the applicable human rights framework, taking into account Article 3 common to the four 1949 Geneva Conventions and AP II, where applicable.

In armed conflicts of an international character, however, it must be kept in mind that “civilians shall be protected from any acts of violence (Arts. 13 and 27 GC IV; Art. 46 HagueReg²³)”,²⁴ and that in case of doubt as to whether a person is a civilian or a combatant, he or she shall be treated as a civilian (Art. 50(1), in fine AP I). References to suspected terrorists are often based on missing reliable and public evidence of the commission or preparation of terrorist acts (making it impossible to challenge the validity of this presumption in a court of law). This categorisation also indicates that those persons are civilians or that at least there are...