The targeted killing of terrorists on foreign soil - Institute of Advanced ...

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Tobias Ruettersh<strong>of</strong>f Panel 4 (a) 3.3.2 Non-International Armed Conflict Since it is not possible to apply IHL to the <strong>targeted</strong> <strong>killing</strong> <strong>of</strong> <strong>terrorists</strong> within the scope <strong>of</strong> international armed conflict, the option <strong>of</strong> non-international armed conflict remains. This type <strong>of</strong> conflict is mainly regulated by Common Article 3 <strong>of</strong> the Geneva Conventions which applies “in the case <strong>of</strong> armed conflict not <strong>of</strong> an international character occurring in the territory <strong>of</strong> one <strong>of</strong> the High Contracting Parties” (ICRC 1949). It provides minimum humanitarian standards for all forms <strong>of</strong> armed conflict and is thus <strong>of</strong>ten conceived as “convention within the conventions” (Jinks 2003, 16; cited after Abi-Saab 1988, 221). In the analysis, it has thus to be determined whether the conflict between state and a terrorist organisation can be considered a non-international conflict and, secondly, at what point or degree it becomes an ‘armed’ non-international conflict. First and foremost, it is relevant to see whether a non-international armed conflict is confined to the territory <strong>of</strong> a state. If this is the case, then <strong>targeted</strong> <strong>killing</strong> <strong>of</strong> <strong>terrorists</strong> by forces <strong>of</strong> state A on the territory <strong>of</strong> state B could, by definition, not come within the ambit <strong>of</strong> noninternational armed conflict and would ban the applicability <strong>of</strong> IHL (see Schmitz-Elvenich 2007, 182). Evidence for such an interpretation can be found in Article 1 (1) <strong>of</strong> AP II which confines non-international armed conflicts to conflicts “which take place in the territory <strong>of</strong> a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups” (IRCR 1977b). This would mean that cross-border conflicts, including the international fight against terrorism, cannot be seen as non-international armed conflicts. However, AP II does not cover all conflicts mentioned in Common Article 3 GC as “not <strong>of</strong> an international character”. <strong>The</strong> express connection between territory and armed forces <strong>of</strong> Article 1 (1) AP II is missing in Common Article 3 GC. AP II thus has a narrower scope than Common Article 3 GC (see Sandoz 1987, para. 4447). Even though the latter one also mentions the territory <strong>of</strong> a party, this does not mean that this party has to be part <strong>of</strong> the conflict. A participation <strong>of</strong> government armed forces in a non-international armed conflict is therefore not necessary (ibid., para. 4461). Furthermore, the term ‘non-international’ must not be equated with ‘domestic’. It denotes all armed conflicts that are not taking place between two states (see Bruha 2002, 419). This interpretation <strong>of</strong> Common Article 3 GC was confirmed by the US Supreme Court in the case Hamdan v. Rumsfeld (2006, 67 f.). Indeed, so far IHL interpreted non-international armed conflicts as domestic conflicts between the state and a non-state actor. But there is no substantive reason why those norms should not apply to an armed conflict with a non-state actor that is not restricted to the territory (see Kretzmer 2005, 195), because if IHL already takes on issues that are domestic – and thus primarily subject to the sovereignty <strong>of</strong> the state - conflicts between a state and a group with a - 18 -
Tobias Ruettersh<strong>of</strong>f Panel 4 (a) cross-border situation definitely have to come under it (see Jinks 2003, 43). Hence, the notion <strong>of</strong> non-international armed conflict is not confined to the territory <strong>of</strong> a state. Instead, Common Article 3 GC covers all conflicts that are not international. Thus, IHL is principally applicable to the <strong>targeted</strong> <strong>killing</strong> <strong>of</strong> <strong>terrorists</strong> (see Schmitz-Elvenich 2007, 188). However, the general applicability <strong>of</strong> IHL to transnational counter-terrorism does not reveal anything about requirements needed for a non-international armed conflict. Other than in international armed conflict, those requirements are not clearly normed, which is partly based on the fact that non-international armed conflicts <strong>of</strong>ten interfere with domestic laws and states certainly have no interest that every riot or uprising invokes Common Article 3 GC (ibid., 190 f.). Still, some general requirements can be deduced from the ICJ’s general definition <strong>of</strong> armed conflict in the Tadic case (see above, 19). Firstly, it says something about the duration a conflict must have to qualify as noninternational armed conflict. By mentioning “protracted, armed violence”, the court refers to a similar phrase in Article 1 (1) AP II which requires “sustained and concerted military operations” (ICRC 1977b). In contrast, Article 1 (2) AP II sees “internal disturbances and tensions, such as riots, isolated and sporadic acts <strong>of</strong> violence” (ibid.) as not sufficient enough. Similar provisions can be found in Article 8 (2)(d) and (f) <strong>of</strong> the Rome Statute <strong>of</strong> the ICC (see ICC 1998). Contrary, contrary to an international armed conflict, non-international armed conflict requires a long-term dispute between a state and a non-state actor. Within the scope <strong>of</strong> the international fight against terrorism, the protracted nature can certainly be affirmed. Secondly, the term “protracted, armed violence” also implies a certain intensity a conflict must have to qualify as non-international armed conflict. As one might argue, single terrorist attacks (or responses to it) do not show enough intensity to be classed as non-international armed conflict (see Vöneky 2004, 943). But, a holistic view is necessary in this case. Similarly to the notion or “armed attack” under the ius ad bellum, a subsumption <strong>of</strong> several terrorist attacks under the accumulation <strong>of</strong> events doctrine (see above, 17) is possible if they take place in a connective frame (see Schmitz-Elvenich 2007, 194 f.). Thirdly, for the presence <strong>of</strong> a non-international armed conflict, a certain degree <strong>of</strong> organisation is required on the side <strong>of</strong> the non-state actor, as the phrase “organised armed groups” (see ICTY definition above, 19) implies. <strong>The</strong> fact is, terrorist organisation <strong>of</strong>ten have an incredible command structure which <strong>of</strong>ten resembles that <strong>of</strong> armed forces. This - 19 -
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