When one aims to describe the human rights legality of targeted killings, one has to examine the right to life. The right to life is a natural and unalienable right of men. From the point of view of its subjects, the right to life requires that no man shall be killed arbitrarily, thus it ensures the life of the individual. From the relevant international conventions a two-folded obligation seems to flow: On the one hand, states have to respect the right to life of individuals, and in certain situations– based on the level of control the state has– they have to ensure those rights as well. The respect of the right to life is founded upon customary international law, moreover ius cogens, which allows no derogation from the rule, regardless of any international agreements states may have. Following the above-painted train of thought, one can argue that no man can be deprived of his or her life, no matter the circumstances, but this does not follow from the rule, although the killing cannot be arbitrary. The non-arbitrary nature of a killing is not easy to describe, which was mostly done by human rights courts and quasi-judicial bodies. Consequently, use of intentional lethal force against a person can only be an ultima ratio solution, it has to be the last resort, and necessary in order to protect the right to life of others.
Every law enforcement operation has to be conducted in line with three principles: necessity, proportionality and precaution. The principle of necessity in this sense means that the desired goal, the protection of others cannot be reached by any other means less harmful to human life. Above this, the operation has to be proportionate as well, thus it can be conducted in situations where the life of others is endangered by the targeted person, and its annihilation is unavoidable. Last, but certainly not least, the principle of precaution requires states to plan these law enforcement operations in a way which minimalizes the use of lethal force with regards not only to the targeted person, but as regards the collateral damage’, i.e. innocent bystanders as well.
To illustrate the above-mentioned, we can cite the McCann and others v. the United Kingdom case of the European Court of Human Rights, which was decided on 27 September 1995. In the judgement the Court stated that the killing of IRA terrorists by state agents violated the victims’ right to life, since in the given situation it would have been a possibility to use less harmful means to address the threat, namely they could have been arrested. The British and Spanish authorities were informed that certain members of IRA plot a terrorist attack in Gibraltar with the involvement of explosives. When the three suspects have arrived, members of the Special Air Services (SAS) called upon them to surrender, but the terrorists’ sudden movements led to the shooting of the IRA members, since the authorities assumed that the terrorists are going to use their weapons. Later on, it was obvious that the IRA members did not have any weapon or bomb, although the Spanish authorities later found a vehicle filled with explosives.
What does this mean in connection with targeted killings conducted by unmanned aerial combat vehicles? First of all, it means that the legality of these strikes has to be examined on a case-by-case basis. To determine that such an operation had been conducted lawfully, several difficult conditions need to be met: one has to examine the alternative means to the use of lethal force and has to prove that these methods are inadequate to solve the issue (necessity). Moreover, one has to show that the targeted persons are directly threatening the lives of others (proportionality).
Another question which needs to be addressed is the issue of ‘collateral damage’. This has to be examined in light of the substantive side of the right to life. It is universally accepted, that in times of armed conflict one has to distinguish between combatants and civilians, in international armed conflict and between civilians and those who directly participating in hostilities in non-international armed conflict. The principles of international humanitarian law, viz. distinction, necessity, proportionality, humanity and precaution, require states to evaluate both during planning and execution that the civilian casualties of a certain operations do not exceed the military advantage they expect from the strike. Consequently, international humanitarian law, standing on the grounds of reality does not preclude the killing of ‘innocents’ even if it is only allowed in a limited scope.
In lack of an armed conflict, the whole situation is governed exclusively by international human rights law. The question is what the evaluation of collateral damage is in this case. Some authors, like Roland Otto argue that in law enforcement situations collateral damage is unacceptable, thus innocent bystanders shall never fall victim to such operations. In contrast, Nils Melzer suggests that although the international human rights regime is less permissive with collateral damage than international humanitarian law, this does not mean that it cannot tolerate it at all. Thus, there are situations in which a state may kill innocent bystanders regardless of the existence of an armed conflict.
In a 2011 judgement, the European Court of Human Rights held that the use of poisonous gas in a Moscow theatre which took the lives of 125 hostages did not violate the right to life of the victims, since it was not disproportionate in the given situation. To briefly summarize the case, 40 armed Chechen separatists seized the Dubrovka Theatre in Moscow in October 2002 taking nearly 1000 hostages in the process. In the end, the ‘siege’ ended when Russian authorities intervened using opiate-fentanyl-based gas to disable the terrorists before entering the theatre.
Although this judgment cannot be regarded as a‘precedent’, since the Court notes that despite the fact the gas was dangerous to human life, it should not have been lethal, contrary to, for instance, bombs or surface-to-air missiles. Consequently, in those cases where the innocent bystanders have a reasonably good chance to survive, the counter-terrorist operation remains legal, even if it caused the death of several not-targeted persons. The Strasbourg court referenced in its decision the Isayeva case, where Russian authorities bombed a whole Chechen village where a separatist group was hiding. The operation caused enormous collateral damage. Moreover, the Court in the judgement of Finogenov used a very interesting formula. It stated that the potentially lethal weapons were not used indiscriminately by the Russian authorities, which resulted in a high chance of survival, and in the end, this was the reason for the lack of a violation regarding the right to life.
In the view of the author, based on the above mentioned, one can form the hypothetic opinion of a human rights court in this situation, concerning targeted killings via drones and the issue of ‘collateral damage’. Bombs and surface-to-air missiles– in case they hit their target– usually deliver the excepted result as they kill the targeted person or destroy the selected object. It is characteristic of drone strikes that they attack moving vehicles in which many people can travel– or they hit an open field gathering. In these circumstances, it is almost unavoidable, that the attacks on hand will affect ‘peaceful bystanders’ as well. The question is, how can one describe a precision air strike in terms of the expected results. Will the non-targeted persons certainly die in these situations, or is their death only accidental? Targeted killing operations can and should be conducted in a precise manner, but one can find arguments for and against both above-mentioned scenario. In case of certain death, according to the European Court of Human rights, the violation of the rights laid down the Convention can be found, in contrast, when the death of the persons simply might occur, the determination is not that clear. In case one looks at precision missile strikes which potentially but not certainly cause the death of innocent bystanders, one might conclude that the targeted operations can be legal, since these strikes by the nature of things cannot be conducted indiscriminately.
Although in hypothetic situations one can imagine a lot of things and scenarios, in real life, one has to see that targeted killings in light of the substantive side of the right to life are somewhat questionable, and they can be lawfully conducted only under very strict and narrow circumstances. It is incredibly hard to demonstrate that a person constitutes a threat which demands an immediate and lethal action in order to save the lives of others, not to mention endangering peaceful bystanders.
Targeted killing operations have been conducted in the name of counterterrorism, since 2000 and as such they usually involve extraterritorial use of force. It is universally accepted that states have the obligation to respect and ensure the human rights of those under their jurisdiction. Since usually this jurisdiction is linked to the territory of a state, the question arises whether these obligations bind states when they act outside their national territory, let it be a military or a law enforcement operation. The extraterritorial applicability of a human rights treaty is not relevant from the point of whether a state has the obligation to respect the rights of people– since for instance in the case of the right to life state are obligated to do so, based on customary international law, moreover a ius cogens norm– but the question is rather to which judicial or quasi-judicial body the victims of such violations or the relatives of those who lost their lives in such an act of can state turn with their reparation claims.
Perhaps it is not surprising that most of the human rights conventions use similar terms in their jurisdiction clause, moreover the judicial or quasi-judicial bodies which are responsible for overseeing the enforcement of said treaties use similar methods when they determine the extraterritorial applicability of their respective treaties. First, the International Covenant on Civil and Political Rights stipulates:
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
After carefully reviewing the rich literature of the topic, the following statements can be made. Firstly, based on the travaux préparatoires and the text of the jurisdiction clause it seems self-explanatory that it is a conjunctive rule, thus the Covenant applies to those, who are on the territory of a State Party and under its jurisdiction at the same time. This approach is represented by the United States, which will not take human rights responsibility for its extraterritorial targeted killings. Contrarily, the International Covenant on Civil and Political Rights(ICCPR) contains rights, which exclude the conjunctive interpretation by their nature, and the Human Rights Committee in its General Comment No. 31 reinterpreted the and as an or. Besides all this, the Committee in its 1981 Burgos case stated: jurisdiction is not referring to the place, where the alleged violation has happened, rather to the relationship between the individual and the state based solely on the fact of the violation, independently of its whereabouts. With this, the Committee established the personal model of extraterritorial jurisdiction. In case of drones strikes this means that the relatives of those who were arbitrarily deprived of their lives could act before this treaty body with success, since the violation of the right to life creates the necessary jurisdictional link between the state and the individual.
One can find a similar jurisdiction clause in the two major regional human rights systems, the Inter-American Convention on Human Rights and the European Convention on Human Rights. The prior stipulates as follows:
“The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”
One can see that, this time the reference to territory is missing from the clause, and it is important to note that the text separates the issue of respecting and ensuring rights.
A few months ago, one could summarize the Inter-American Court’s jurisprudence in this manner extremely simply, since the Court with one exception– in the Fairén-Garbi case, where the San José court left the question open– has not dealt with the question of extraterritorial application. The situation has changed on the 7 April 2018, when the Court published its advisory opinion concerning the wider Caribbean region’s environmental protection. The Court regarded not only extraterritorial state actions, but those which create effects outside their territory as the affected person is under the jurisdiction of the said state in case the state exercises authority over the individual or the person is under its effective control. In the end, the Court created a new jurisdictional link for extraterritorial action, which can be invoked independently. The new link is based on the cause and effect notion, which was denied several times by its European counterpart.
To understand the Inter-American human rights system, one has to examine the jurisprudence of Inter-American Commission on Human Rights as well. The quasi-judicial treaty body, based in Washington has been dealing with issues similar to targeted killings for a long time. For instance, one can cite the assassination of Letelier, former American ambassador to Chile in 1976, and another case from Chile, concerning the assassination of Prats, former vice president of the republic in 1974, or the Coard and Salas cases connected to the United States. To summarize, one can conclude that the Commission used the personal model of jurisdiction in case of the Convention or in some instances– in the case of the U.S.– the American Declaration of the Rights and Duties of Man.
Targeted killing via unmanned combat aerial vehicles is almost analogous to the Alejandre and others v. Cuba case from 1995. The Commission had to deal with a case in which a Cuban MIG-29 shot two smaller civilian airplanes in international airspace. The Commission declared the application admissible on the grounds that Cuba exercised authority and control over the four victims of the incident, whose death was direct consequence of Cuba’s actions.
In a very similar situation to drone strikes, the Commission founded its decision upon the obligation of the state parties to respect the right to life of others in their extraterritorial actions as well. This means that in the Inter-American system, it is unambiguously determinable, that a state conducting extraterritorial targeted killings will be responsible for its actions.
The other significant regional human rights system and convention is the European Convention on Human Rights, which was created under the aegis of the Council of Europe. The judicial body responsible for overseeing the enforcement of Convention is the European Court of Human Rights, which makes judgments binding upon the states parties. The European model of jurisdiction is similar, but also somewhat different from the American one:“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
One can see that the jurisdiction part is the same in the two regional systems, but the European system does not differentiate between the obligations of respect and ensure, since it only stipulates the latter. In its jurisprudence, the European Court of Human Rights essentially applied the territorial model of jurisdiction, which is only subject to derogation in extreme circumstances, where the Court used the personal model instead, although almost always coupled with some level of physical control over the individual. Contrary to the ECtHR, the former European Commission on Human Rights used the personal model in the M v. the United Kingdom and Ireland case already in 1985, however, ten years later, the Court ruled on the Loizidou case on the basis of the territorial model, which was reaffirmed in the 2001 Bankovic judgment. In the latter case, the Strasbourg Court declared the application inadmissible based on the lack of jurisdiction on the grounds that the NATO aerial campaign and bombardment of the former Yugoslavia did not create the necessary jurisdictional link between the countries taking part in the killing and injuring 32 persons, since they did not exercise effective control over the territory in question. In its reasoning the Court determined that the ‘cause and effect’ concept will not establish jurisdiction, moreover it denied the ‘tailoring’ of positive and negative obligations laid down in the Convention. One can conclude that the Court decided not to accept an application in a very similar situations to extraterritorial targeted killings. Although the Court in its subsequent jurisprudence has been loosening its strict and rigorous territorial approach step-by-step, the Strasbourg court did not overrule the fundamentals of the Bankovic judgement. The personal jurisdictional model has been used only secondary to the main territorial approaches, moreover, the ECtHR’s approach to jurisdiction almost always requires some degree of physical control as well.
Concerning drone strikes one can conclude that in case the ECtHR will not change its current, essentially territorial model,– be it the personal or the mixed solution suggested by Milanovic,– some level of territorial control will always be necessary in order to declare an application admissible, even in cases of extraterritorial targeted killings.
Nowadays a shift in the methods of combating terrorism is perceivable, namely a shift from the law enforcement model to the armed conflict model. Thus, one can see a rise in the number of targeted killings conducted each year, which might be the only solution to a situation which threatens the international peace and security. In these circumstances, it is essential for states involved in counterterrorism operations to know the exact limits of their use of force and their international evaluation regardless of the existence of an armed conflict between the terrorist organization and the state. In lack of an armed conflict, the use of lethal force can only be an ultima ratio solution to the situation and it has to adhere to very strict conditions, this is the case naturally with targeted killing operations. When it comes to the reparatory needs of the victims (or relatives thereof) of an (alleged) violation of rights occurring in a targeted killing situation, an applicant might successfully submit a petition against the United States, whereas the United Kingdom for
instance can successfully argue for the inadmissibility of such a claim. The reason behind this is the different understanding of the extraterritorial application of the regional human rights treaties.
One has to look differently at targeted killing operations conducted via armed drones, since their technical characteristics differentiate them from a regular airstrike or a land operation. A Reaper and newer UCAVs can stay in the air all day long and can follow their victims, who seems to be incapable of escaping their almost certain death. In situations where the operator of the drone can decide any time when to take the targeted person’s life, one cannot logically argue a lack of jurisdiction, regardless of the effective control over that territory, where the attack takes place. Although according to the view of the present situation the capability of extraterritorial killing creates jurisdiction in every case, one can and has to differentiate between individually conducted strikes, and a traditional air campaign or bombardment. In the latter case one can observe a certainly lower level of control than in case of a targeted drone strike. Indifferent to the applicability of the two models, the respect of the right to life certainly binds all state in the same manner.
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