The unpleasant responsibilities of international human rights law.

Author:Zemach, Ariel
 
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The prevailing view in the legal literature on the fight against terrorism is that the current structure of international law--the law enforcement/armed conflict dichotomy--is ill-suited to address large-scale hostilities between a state and a terrorist organization. The law enforcement model is governed by international human rights law. The armed conflict model is primarily governed by the law of war. Human rights law, it is argued, allows states too little in their struggle against terrorist organizations while the law of war allows them too much.

Hence, many advocate the development of a new body of law, a normative middle ground between the law of war and human rights law, applicable to armed conflicts between a state and a terrorist entity. According to this approach, large-scale hostilities between a state and a terrorist organization are considered armed conflict. Yet the application of the law of war to such conflicts is qualified by the principles of international human rights law. The interaction between the law of war and human rights law produces a new, distinct set of norms. The permission to use lethal force afforded to a state under these norms is broader than the one afforded to it under human rights law yet narrower than the one available to the state under the law of war.

This article rejects the normative middle ground approach and defends the traditional law enforcement/armed conflict dichotomy. It advances a very high threshold for the existence of armed conflict, arguing that only hostilities that border on full-scale war amount to an armed conflict. Within the sphere of armed conflict, properly constructed, the law of war does not allow states too much. On the contrary, it offers the best bargain from a humanitarian perspective, and therefore its application should not be qualified.

This article further argues that grave, large-scale violence that falls short of a full-scale war is governed exclusively by human rights law. This argument is tenable provided that human rights law presents realistic standards of conduct for states in the face of such violence. The author argues that it does. The liberties to exercise lethal force required in order to contain grave, large-scale violence are, and should be, available to a state under human rights law. In the course of this inquiry, the author addresses two questions concerning the scope of permission to kill suspected terrorists afforded to a state under human rights law:

  1. When is the threat sufficiently proximate to justify the use of lethal force against the suspected terrorist?

  2. Can a state engage in counter-terrorism operations that are likely to result in the unintentional killing of innocent persons?

    1. INTRODUCTION

    The prevailing view in the legal literature is that the current structure of international law--the law enforcement/armed conflict dichotomy--is ill-suited to address large-scale hostilities between a state and a terrorist organization. (1) The law enforcement model is governed by international human rights law. (2) This body of law, the argument goes, is simply not up to the task. The liberties to exercise lethal force required in order to contain grave, large-scale violence are not, and should not be, available to a state under human rights law. (3) Yet, it is argued, while human rights law allows states too little in their struggle against terrorist organizations, the law of war, which governs armed conflicts, allows them too much. (4) Indeed, the permission granted to a state to exercise lethal force is much broader under the law of war than it is under international human rights law. The main difference concerns the objects of permissible use of force. Human rights law allows the targeted killing of individuals only on the basis of their personal dangerousness. (5) By contrast, the law of war is governed by the principle of distinction between combatants and civilians, (6) which allows targeting combatants on the basis of their status as members of an armed force, regardless of whether their actions endanger the lives or interests of the other party to the conflict. (7) Moreover, the principle of proportionality in the law of war grants states a relatively broad permission to launch attacks that are likely to result in incidental killings of uninvolved civilians. (8) Under human rights law the permission to cause collateral damage is much narrower. (9)

    Warning against the application of the law of war to the conflict between the United States and al-Qaeda, Marco Sassoli thus observes that such application would have allowed the United States to kill the suspected terrorist Jose Padilla by an ambush attack "when he left his plane at a Chicago airport or at his grandmother's birthday party." (10) Hypothesizing potential aerial attacks against terrorists in the United States, Canada, or Germany, Sassoli concludes, "[t]his absurd result, permitting targeted assassinations in the midst of peaceful cities, proves once more that all those suspected to be 'terrorists' cannot be classified as combatants." (11)

    There is also a formal obstacle to applying the law of war to the fight against terrorism. The application of the law of war depends on the existence of either an international armed conflict or a non-international armed conflict. (12) Yet large-scale hostilities between a state and a terrorist organization, which transcend the territory of the state involved--the recent conflict between Israel and Hamas in Gaza and the conflict between the United States and al-Qaeda represent such conflicts--do not fall neatly within the customary definitions of either an international or a non-international armed conflict. The conduct of parties to a non-international armed conflict is regulated under Common Article 3 of the Geneva Conventions, (13) as well as under the Second Additional Protocol to the Geneva Conventions (14) (Protocol II). The definitions of a non-international armed conflict contained in those treaties refer to a conflict occurring within the territory of a state party. (15) Some commentators thus argue that a conflict between a state and a non-state actor, which transcends the territory of the state party to the conflict, cannot be regarded as a non-international armed conflict. (16) Considering such conflict an international armed conflict is also problematic since, according to the prevailing definition of an international armed conflict, such conflict is waged between two or more states. (17)

    The bulk of authority nevertheless favors the view that large-scale hostilities between a state and a terrorist organization should be considered armed conflict. (18) To that end, both courts and commentators have stretched the customary definition of either an international armed conflict (beyond inter-state conflicts) or a non-international armed conflict (beyond conflict occurring strictly within the territory of a particular state) to encompass such hostilities. Others advocate the development of a third, distinct category of armed conflict--that of "extra-state armed conflict"--to accommodate hostilities between a state and a transnational terrorist organization. (19)

    The rationale underlying this approach turns on the alleged impracticality of the law enforcement model. All agree that a legal regime that imposes on states unrealistic law enforcement standards in the face of grave, large-scale violence will inevitably be ignored. (20) In reality, where law enforcement is impractical states will abandon the law enforcement model regardless of the requirements of international law. Commentators thus caution that unless international law presents realistic standards of conduct for states, "they will act in an environment infected by the lawlessness that characterizes terrorism." (21) According to this view, the purpose of recognizing the existence of an armed conflict is to provide governments with certain means-of-last-resort to control especially threatening violence. The law of war steps in, then, when law enforcement is not up to the task. (22)

    Moreover, under the jurisprudence of both international and domestic courts, the threshold for the existence of an armed conflict between a state and a terrorist or guerrilla organization, in terms of the intensity of the violence and its level of organization, is relatively low. (23) Indeed, the sphere of armed conflict has come to encompass hostilities that are far short of a full-scale war. Some courts take this approach in order to provide states with the broad liberties to exercise lethal force available under the law of war. (24) Others aim to bring into play the humanitarian protections afforded to the civilian population under the law of war. (25) Under the prevailing view, the law of war's field of application is thus very broad.

    Several commentators argue, however, that the existence of an armed conflict between a state and a terrorist group does not entail full application of the law of war. (26) Addressing situations such as the violent confrontation between Israel and the Palestinians (the "al-Aqsa Intifada"), David Kretzmer advocates the adoption of a normative middle ground between the law of war and international human rights law (27) (hereinafter "mixed model" (28)). According to the mixed model, conflicts such as the al-Aqsa Intifada should be recognized as armed conflicts and members of Palestinian terrorist organizations should be considered combatants. (29) However, Israel's war rights are qualified by the principles of international human rights law. The interaction between the law of war and human rights law produces new norms that differ substantially from those of the law of war. Other commentators share this view. (30)

    Under this normative model, the relatively broad permission to exercise lethal force embodied in the law of war's principles of distinction and proportionality becomes much narrower. The mixed model departs from the...

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