By Katherine Iliopoulos

The phenomenon of ‘targeted killings’ has become an indelible feature of the post-September 11 world. States continue to grapple with the question of how to respond to ‘cross-border’ threats and acts of terrorism from a variety of non-state armed groups, and to the challenges of ‘asymmetric warfare.’ Targeted killings are one such response, carried out to eliminate those suspected of leading or masterminding terrorist acts. In recent years, a few States – particularly the United States, Israel and Russia – have adopted policies, either openly or implicitly, of using targeted killings, including in the territories of other States. Some condemn targeted killing as extra-judicial execution, while others accept it as a legitimate method of warfare against terrorists. 

A targeted killing is the intentional, premeditated and deliberate use of lethal force by a State or its agents acting under colour of law, or by an organised armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator. The character of armed conflicts in the 21st century is markedly different from conventional warfare upon which the laws of armed conflict were based. As such, this military tactic – which is often used away from a ‘battlefield’ or disconnected from one altogether – constitutes one of the major ‘grey areas’ of international humanitarian law.

The case of U.S. citizen Nasser al-Aulaqi currently before the U.S. Supreme Court has attracted considerable media coverage in the last few weeks, and it certainly has not escaped the attention of international legal scholars either. Al-Aulaqi, who resides in Yemen, is the first US citizen to have been placed on a ‘kill list’ by the CIA with the endorsement of President Barack Obama for what intelligence officials say is membership of al-Qaeda in the Arabian Peninsula and for being linked to suspected Fort Hood shooter Major Nidal Malik Hasan and the would-be Christmas Day bomber, Nigerian national Umar Farouk Abdulmutallab, who attempted to detonate explosives on an American aircraft en route to Detroit last year.

The lawsuit, brought on behalf of al-Aulaqi by his father, gives rise to a fundamental question: When, if ever, is it lawful for a state to conduct a targeted killing? The question involves a consideration of international humanitarian law and human rights law, and the restrictions that they impose on the conduct of military operations.

In the al-Aulaqi suit, the U.S. government has argued that the armed conflict against al-Qaeda is a global conflict, and that the law of armed conflict governs the detention, prosecution, and killing of suspected al-Qaeda associates, regardless of where they are found. In June 2010, Deputy National Security Advisor John Brennan responded to questions about the targeted killing program by stating, “If an American person or citizen is in Yemen or in Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they will also face the full brunt of a U.S. response.”

Yet it appears untenable to maintain that the U.S. is involved in a global armed conflict against al-Qaeda. Certainly the US is involved in a non-international armed conflict against al-Qaeda in Pakistan and Afghanistan, but the United States is not at war with Yemen or within it. That in itself would not pose an obstacle to the killing of al-Aulaqi if it could be shown that he was directly participating in the armed conflict in Pakistan or Afghanistan from his perch in Yemen. This is because while armed conflict is ‘territorial,’ it is not exclusively so. The problem lies in the fact that the U.S. has not said that he has anything to do with the wars in Pakistan and Afghanistan. Rather, he has been alleged to be participating in terrorism activities, which, according to ICTY jurisprudence, are outside the purview of ‘armed conflict.’ Al-Aulaqi’s membership of or association with al-Qaeda is simply not enough to make him legally targetable under international humanitarian law.

The Legal Adviser to the U.S. Department of State recently outlined the Government’s legal justifications for targeted killings. They were said to be rooted in its asserted right to self-defence, as well as on IHL, on the basis that the U.S. is “in an armed conflict with Al Qaeda, as well as the Taliban and associated forces.”

International law scholar Kevin Heller has said that despite not characterising al-Aulaqi as a direct participant in the non-international armed conflict in Pakistan or Afghanistan, the U.S. cannot even invoke the principle of ‘co-belligerency’ because it only applies to international armed conflicts. The U.S. government claims that al-Aulaqi can be lawfully targeted because al-Qaeda in the Arabian Peninsula is “a co-belligerent of al-Qaeda that has directed armed attacks against the United States in the non-international armed conflict between the United States and al-Qaeda.”

Because al-Aulaqi is not alleged to be participating in any armed conflict as such, IHL does not apply to any assessment of whether the U.S. can conduct a targeted killing in his case—but human rights law does.

And in the absence of an armed conflict between the U.S. and another State with which al-Aulaqi is connected, the U.S. cannot realistically invoke the right to self-defence under Article 51 of the UN Charter.

Article 51 is an exception to the Article 2(4) prohibition on the use of force by one State against another. It is possible, however, for States to invoke the right to self-defence as justification for the extraterritorial use of force involving targeted killings in response to an “armed attack” by another State, so long as that force is necessary and proportionate. The International Court of Justice (ICJ) has held that States cannot invoke Article 51 against armed attacks by non-state actors that are not imputable to another State (‘The Wall’ Advisory Opinion; Armed Activities on the Territory of the Congo).

In his report on Targeted Killings of May 2010, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Philip Alston appeared to endorse a looser interpretation of Article 51 that he said “appears to reflect State practice and the weight of scholarship.” According to this theory, self-defence also includes the right to use force against a real and imminent threat when “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”

According to Marko Milanovic, self-defence is a right that is engaged only when there is a situation involving the use of force and concomitant violation of the sovereignty and territorial integrity of another state. He says that “because self-defence operates as an exception to the prohibition on the use of force, it logically operates only when that prohibition is itself engaged.” So, for example, if Yemen were to consent to the use of force on its territory – against al-Aulaqi – it would simply mean that the U.S. could not be accused of committing an act of aggression against Yemen. Self-defence is simply irrelevant in such a case.

In the case of the assassination of Hamas commander Mahmoud Mabhouh in Dubai by Mossad agents in January 2010, the United Arab Emirates had not consented to the use of force on its territory. And while Israel invoked self defence, it did not present evidence that an attack on its territory was imminent, nor that it sought the cooperation of the Dubai authorities – assuming Mossad was not capable on its own – to try and arrest and detain Mabhouh. The difference between the case of Mabhouh and al-Aulaqi is that there is a stronger case to argue that, although Mabhouh was away from the ‘battlefield’ at the time of his killing, he remained a member of Hamas, a non-state actor engaged in an armed conflict with Israel. Even so, if the Israeli Supreme Court’s reasoning were to be followed (see below), the circumstances demanded that Mabhouh be arrested – not killed – in his hotel room.

Anthony Dworkin of the European Council on Foreign Relations and the former Executive Director of the Crimes of War Project believes that it is unnecessary to deal with the question of whether there is an armed conflict taking place between the U.S. and al-Qaeda. He advocates a radically new approach to the question of the legality of targeted killings, which starts with “dismissing the technical question of whether there is an armed conflict with al-Qaeda” as irrelevant. Instead, he says that premeditated killing “would in all cases have to be justified on an exceptional and individual basis, depending on the gravity of the threat posed by that individual and the possibility of meeting it in other ways. In effect, the same kind of human rights judgements would have to be made whether or not an armed conflict was involved”

The central importance of human rights considerations in Dworkin’s approach finds resonance in the judgment of the Israeli Supreme Court in the 2006 Targeted Killings case. Two human rights NGOs challenged the Israeli Defence Force’s policy of targeted killings or assassinations on the basis that they constitute a violation of international humanitarian law and human rights law. The Court found that there was a continuous armed conflict between Israel and “various terrorist groups” in the OPT, which it characterised – for the first time – as international in nature, and occurring in the context of a state of occupation.

The Court ruled that a civilian taking a direct part in hostilities – which could include a civilian engaging in a ‘chain of hostilities’ as a member of a terrorist organisation – may be lawfully targeted, provided four conditions are met. The attacking State must have accurate and verifiable information about the target; any killing must be thoroughly investigated and if innocent civilians are killed compensation must be paid; and any killing must not violate the principle of proportionality. The final – and most remarkable – condition was that “a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.

It is this condition that Dworkin seems to endorse in his approach. That is, if a terrorist taking a direct part in hostilities can be detained, interrogated and brought before a court, then those are the means which should be utilised instead of resorting to the lethal use of force. According to the Court, “Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.” The Court also affirmed that Article 75 of Additional Protocol I is a rule of customary international law and therefore applicable to ‘unlawful combatants’ such as ‘terrorists’: “unlawful combatants are not beyond the law. They are not ‘outlaws.’ God created them as well in his image; their human dignity as well is to be honoured; they as well enjoy and are entitled to protection, even if most minimal, by customary international law.

In effect, the Court was using human rights law and principles to ‘moderate’ the application of IHL to the ‘abnormal’ situation of an international armed conflict taking place in the context of occupation. It could be said that the rationale for this approach is that, by definition, an occupying State has the means to control the territory on which the targets are located, and therefore has other means at its disposal to meet its own security interests, unlike in a conventional international armed conflict.

In a similar vein, Alston states in his report that the basis for any consideration of whether a targeted killing is lawful is the principles of proportionality and necessity, which underlie both international humanitarian law and human rights law. A targeted killing is legal “only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal force necessary).” The proportionality requirement limits the permissible level of force based on the threat posed by the suspect to others. The necessity requirement imposes an obligation to apply the minimal force necessary to eliminate that threat, for example, if warnings, restraint and capture can be used, then use of force causing injury or death would be unlawful.

The Israeli Supreme Court’s judgment and the Alston report both contrast with the findings (or lack thereof) of the U.S. Supreme Court in the Hamdan case, which simply said that terrorist detainees are entitled to the protections afforded by Common Article 3 of the Geneva Conventions. The Court refused to deal with the U.S. Government’s claim that the U.S. is engaged in a global war on terror with al-Qaeda on the grounds that the conflict is not one that is occurring between states (international), and so Article 3 applies. But regrettably, it went no further than that.

In the present case of al-Aulaqi, the plaintiff is arguing that targeted killings violate the Fourth and Fifth Amendments of the U.S. Constitution, as well as international law. He is also requesting a ruling that would compel the Administration to reveal the criteria that it uses to select American citizens for inclusion on its ‘kill lists.’ The Administration appears to be doing all it can to impede the litigation by alleging that al-Aulaqi’s father has no standing and that proceeding with the case will jeopardise national security.

Although not specifically raised by either party, the Court will also have to answer a pivotal and precise question: whether a state of armed conflict exists between the U.S. and al-Qaeda in Yemen.

The al-Aulaqi case ought to serve as a reminder that it is of utmost importance that “a rule-of-law state” – as the U.S. purports to be – strives to adopt a rule of law approach to counterterrorism by basing its operations on human rights considerations, ensuring substantive or procedural safeguards to ensure the legality and accuracy of killings and putting into place accountability mechanisms. The Court in this case has an opportunity to ensure that the State-sanctioned killing of an American citizen away from any battlefield does not escape judicial scrutiny, and to base its examination not just on the U.S. Constitution, but on the principles of international law and human rights.

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.

Related Links:

Study on Targeted Killings (PDF)
The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Philip Alston
May 2010

Al-Aulaqi v Obama (Complaint) (PDF)
US District Court (DC)
August 30, 2010

Comparing Hamdan and the Israeli Targeted Killings Case
By Marko Milanovic
International Committee for the Red Cross
June 30, 2007

The ACLU Reply Brief in al-Aulaqi
By Kevin John Heller
Opinio Juris
October 9, 2010

By Jessica Winch

A war crimes tribunal set up in Bangladesh to try those responsible for atrocities during the country’s 1971 liberation war with Pakistan is facing increased scrutiny by the international community. While the International Crimes Tribunal has been widely welcomed in Bangladesh as a response to the longstanding need to address the issue of impunity for alleged war crimes and other crimes under international law, serious concerns have been raised, particularly regarding its statute, which contains several provisions that are incompatible with international law and international fair trial standards. In July, Rules of Procedure were adopted, which are also highly problematic in terms of international human rights law. 

The International Crimes (Tribunals) Act was drafted in 1973 with some international input and well before the creation of the two ad hoc tribunals for the Former Yugoslavia and Rwanda, whose rulings have since clarified and expanded the body of international criminal law. The Act was later marginally amended in 2009.

The International Crimes Tribunal was established with a controversial amendment to Bangladesh’s Constitution in 1973. The amendment provides that a person charged with genocide, crimes against humanity, war crimes or other crimes under international law cannot challenge any law providing for their prosecution and punishment on the grounds that it is inconsistent with any of the provisions of the Constitution. That means the Act cannot be challenged on the basis that it violates basic constitutional rights that apply in other criminal proceedings. The constitutional amendment is fundamentally at odds with the rule of law, which ensures equal treatment of all persons before the law.

Five leaders of Jamaat-e-Islami are now in detention awaiting trial. Two of them, Mohammad Kamaruzzaman and Abdul Quader Molla, recently sought to challenge this amendment along with some sections of the Act, arguing that they were inconsistent with the Constitution. According to the media, their challenge was rejected by the High Court on August 23, 2010, but there are also reports that in fact the application was withdrawn by their lawyers for reasons because the judges seemed to have prejudged the matter.

In an interview with the Crimes of War Project, Professor Suzannah Linton of Hong Kong University, the author of the first comprehensive examination of the legislation and rules of procedure, welcomed the “important international precedent” that is being set by Bangladesh in creating the ICT and thereby trying to achieve accountability. But, she cautioned that the legislation as it stands is now well out of date and “runs contrary to its international obligations and the wider objective of the international criminal justice movement, which is not to bring about revenge, but justice.” According to Professor Linton, the most critical shortcoming of the legislation is its lack of adequate fair trial and due process safeguards.

The independence movement in the former East Pakistan, now known as Bangladesh, began in 1971 and was attributed to the concentration of political power in West Pakistan and perceptions in the East of economic exploitation. Rising malcontent and cultural nationalism in the East culminated in a violent crackdown by West Pakistani forces on March 25, 1971, known as Operation Searchlight. All major cities in the East were seized, political and military opposition were eliminated, and foreign journalists were deported. Almost a thousand pro-liberation intellectuals were systematically executed.

Although no systematic or comprehensive accounting was ever done, multiple large-scale mass graves have been uncovered around the country, and the popularly accepted figure within Bangladesh is that up to three million people were killed.

The conflict ended when India invaded in December 1971 and decisively beat the Pakistani forces in a matter of days, capturing 93,000 Pakistani troops. Bangladesh declared its independence shortly thereafter and Sheikh Mujib became the new country’s first prime minister. The West’s army had the support of many of East Pakistan’s Islamist parties. They included Jamaat-e-Islami, still Bangladesh’s largest Islamist party, which has a student wing that manned a pro-army paramilitary body, called Al Badr. It is these collaborators the government wants to try, not the main culprits in the former West Pakistan army.

The events of 1971 have been described as “genocide” within Bangladesh and in several international publications.

Article 2 of the 1948 Genocide Convention, which reflects customary international law, defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” It does not include “political groups,” although that term was added to the definition of genocide under the 1973 Act.

Killing members of a political group as such is not the crime of genocide under international law. As Professor Linton explains, “the problem with the Bangladeshi addition of political groups is that this was one of the groups deliberately excluded from the ambit of the crime of genocide set out in the Genocide Convention. States that were engaged in the drafting process did not want their own people to be tried for genocide for the very common practice of targeting their political enemies.” It is notable that attempts to expand the definition at the Rome Conference for the establishment of the ICC were also defeated.

The International Commission of Jurists (ICJ), when it published its investigation into the events in 1972, stated that “to prevent a nation from attaining political autonomy does not constitute genocide: the intention must be to destroy in whole or in part the people as such. It can hardly be suggested that the intention was to destroy the Bengali people.” Yet the ICJ report does go on to say that particular acts may have constituted genocide against part of the Bengali people: “Where large numbers were massacred and it can be shown that on the particular occasion the intent was to kill Bengalis indiscriminately as such, then a crime of genocide would be established. There would seem to be a prima facie case to show that this was the intention on some occasions, as for example during the indiscriminate killing of civilians in the poorer quarters of Dacca during the ‘crack-down.’” The ICJ took a much firmer approach with respect to the Hindu population however, and in its view there was “a strong prima facie case that the crime of genocide was committed” against this particular group.

Professor Linton, as well as the War Crimes Committee of the International Bar Association, has pointed out that the definition of crimes against humanity in the 1973 Act misses important elements of the more modern definition, namely, the widespread or systematic nature of the attacks against the civilian population. In addition, the Act does not require that the offending actions be committed “with knowledge” of the widespread or systematic attack. The lack of a required nexus with an armed conflict reflects the current definition of crimes against humanity which emerged from modern ICTY jurisprudence, but not necessarily the law of 1971.

The two-tier “crimes in armed conflict” provision in the Act appears to mean war crimes. It takes a form never seen before. One section virtually mirrors that which appeared in the Statute of the International Military Tribunal at Nuremberg. But, the other section provides that violations of any of the hundreds of humanitarian rules that make up the four Geneva Conventions can be prosecuted as war crimes. In the Geneva Conventions treaty framework, only Grave Breaches of the 1948 Geneva Conventions constitute the international crime commonly called war crimes. Then, there is a provision providing jurisdiction over “any other crimes under international law.” These are clear violations of the principle of legality; the universally recognised requirement that criminal laws be clear and people are not prosecuted for what was not criminal at the time that the acts were committed.

The eight grave breaches of the Geneva Conventions are: (1) wilful killing; (2) torture or inhuman treatment, including biological experiments; (3) wilfully causing great suffering or serious injury to body or health; (4) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (5) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (6) wilfully depriving a prisoner of war or a civilian of the rights of a fair and regular trial; (7) unlawful deportation or transfer or unlawful confinement of a civilian; and (8) taking civilians as hostages.

The Grave Breaches provisions, as incorporated into the Act, will only come into play if it can be established that an international armed conflict existed at the time of the crime. The early stages of the conflict can be characterised as a ”Common Article 3” situation, but as Professor Linton points out in her analysis, it is unclear as to whether customary international law in 1971 was such that individual criminal responsibility attached to violations of Common Article 3 of the Geneva Conventions. Nonetheless, she finds that it is possible to argue for the criminalisation of violations of Common Article 3 by 1971, in itself and by linking it to the fundamental general principles of humanitarian law which are undeniably part of the ”laws and customs of war,” violations of which constitute war crimes.

Increasing Indian involvement, particularly with regard to the country’s support and assistance of the Mukti Bahini who were fighting against the Pakistani Army, served to ”internationalise” the conflict. Yet the armed conflict could be said to have become of a truly international character with India’s invasion of East Pakistan in response to Operation Chengiz Khan, the pre-emptive airstrikes carried out by Pakistan India on the evening of December 3, 1971. The Grave Breaches provisions of the Act would thus apply to serious breaches of the Geneva Conventions occurring from that point.

During the conflict, an estimated 200,000 Bengali women and girls were said to have been raped by Pakistani soldiers, including Punjabi, Pashto and Sindhi, with an estimated 25,000 allegedly forcefully impregnated and many held captive as sex slaves. And the Pakistan Army’s local auxiliary forces, known as the Razakaar and Al-Badr, are alleged to have used rape to terrorise, in particular the Hindu population, and to gain access to its land and property.

But crimes such as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity – which were codified for the first time in international law by the 1998 Rome Statute of the International Criminal Court – are excluded from the Act. The only mention of sexual violence in the 1973 Act is “rape” and it appears as a core crime within crimes against humanity. No definition of rape is provided. The definition in regular Bangladeshi law (which has been expressly ousted) is a conservative and limited one, restricted to sexual intercourse.

In the Akayesu case, the International Criminal Tribunal for Rwanda held that rape, which it defined as “a physical invasion of a sexual nature committed on a person under circumstances which are coercive,” and sexual assault constitute acts of genocide insofar as they were committed with the intent to destroy, in whole or in part, a targeted group – in the case the Tutsi ethnic group – as such. In this vein, in the case of Bangladesh, forced pregnancy could be argued to constitute not only war crimes or crimes against humanity but also genocide, if it was found to have been committed with the requisite intent to destroy in whole or in part a particular group – that is, the Bengalis – as such.

Aside from the legal issues surrounding such crimes, it appears that as things stand, the Tribunal will face considerable difficulties in persuading the victims come forward to testify. Sexual crime during the armed conflict has “always been politicised and has now become a nationalistic issue,” said Professor Linton. But, as she points out, very few women have actually spoken out publicly to substantiate the appalling figures of sexual violence that are regularly cited. Not only are there significant social constraints on women speaking out, but according to Dr Bina D’Costa of the Australian National University and human rights barrister Sara Hussein, who have examined the issue of redress for sexual violence before the Tribunal, there has been no consideration given so far to the approach the Tribunal should take and what its priorities should be for addressing sexual violence. And as Professor Linton points out, there is no provision on witness protection or support in the law, beyond one that provides that the Tribunal may take proceedings in closed session.

The Act’s shortcomings do not end there. Human Rights Watch has recommended the removal from the legislation of the death penalty as a fundamental violation of human rights. Arguably, it is also inconsistent with Article 35(5) of Bangladesh’s constitution which prohibits “torture, cruel, degrading or inhuman punishment or treatment.” The International Bar Association is concerned that the Bangladesh tribunal not follow the example set by the Iraqi High Tribunal, which ordered the execution of Saddam Hussein.

But the availability of the death penalty “ought not to be the focus of the international community” says Professor Linton. “Here, the priority seems to be a matter of making the process in Bangladesh meet basic, not five star, international standards.” Professor Linton has identified several provisions that fall well below international fair trial standards. Among these, she is concerned about the bar to Constitutional challenges and the lack of defences available to accused persons such as the defence of ”superior orders” (this exists in the domestic law that applied in 1971 and today) and the lack of disclosure obligations on the part of the prosecution. There is no mention of the right to silence, the presumption of innocence, nor the standard and onus of proof. Furthermore, the Act and the Rules of Procedure and Evidence do not contain any provision affirming the right to have counsel during the critical pre-trial phase. As such, they do not require that the suspect be advised of his rights on being deprived of his liberty, including the right not to answer questions without defence counsel present.

Despite the existence of the requisite political will and civil society support for a justice mechanism to address past crimes and fight impunity, the process remains controversial and politically charged. Serious concerns about the fairness and independence of the process cannot be ignored. Professor Linton commends Bangladesh’s courageous attempt at bringing truth and justice to victims, but says that doing so should not involve a manipulation of the justice system to achieve purely retributive ends. “Victims deserve better than this,” she says, and it is up to the international community to support Bangladesh where possible in its struggle to legitimately meet popular expectations of justice.

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.

Related Links:

Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation
By Suzannah Linton
Criminal Law Forum, May 2010

Redress for Sexual Violence Before the International Crimes Tribunal in Bangladesh: Lessons from History, and Hopes for the Future
By Bina D’Costa and Sara Hussein
Criminal Law Forum, May 2010

Report of the Commission of Inquiry into the Events in East Pakistan, 1971
International Commission of Jurists

Letter to Prime Minister Sheikh Hasina Re: International Crimes (Tribunals) Act
Human Rights Watch
July 8, 2009