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Killing Citizens: Core Legal Dilemmas in the Targeted Killing Abroad of Canadian Foreign Fighters

Published online by Cambridge University Press:  18 July 2017

CRAIG FORCESE  and
LEAH WEST SHERRIFF
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Abstract

For the first time since the introduction of the Canadian Charter of Rights and Freedoms, Canada is in an armed conflict with an insurgency that has actively recruited Canadians and directed them to use or promote violence against Canada. In the result, the Canadian government may ask its soldiers to target and kill fellow Canadians abroad or to assist allies in doing so. This situation raises a host of novel legal issues, including the question of “targeted killing.” This matter arose for the United Kingdom in 2015 when it directed the use of military force against several Britons believed to be plotting a terrorist attack against the United Kingdom from abroad. This incident sparked a report from the British Parliament highlighting legal dilemmas. This article does the same for Canada by focusing on the main legal implications surrounding a targeted killing by the Canadian government of a Canadian citizen abroad. This exercise shows that a Canadian policy of targeted killing would oblige Canada to make choices on several weighty legal matters. First, the article discusses the Canadian public law rules that apply when the Canadian Armed Forces deploy in armed conflicts overseas. It then analyzes international law governing state uses of military force, including the regulation of the use of force (jus ad bellum) and the law of armed conflict (jus in bello). It also examines an alternative body of international law: that governing peacetime uses of lethal force by states. The article concludes by weaving together these areas of law into a single set of legal questions that would necessarily need to be addressed prior to the targeted killing of a Canadian abroad.

Résumé

Pour la première fois depuis l’avènement de la Charte canadienne des droits et libertés, le Canada se trouve en état de conflit armé avec des insurgés qui recrutent activement des Canadiens et Canadiennes et les incitent à réaliser ou promouvoir des actes de violence contre le Canada. Il est donc envisageable que le gouvernement du Canada demande à ses soldats de cibler et de tuer des citoyens canadiens à l’étranger, ou d’appuyer des forces alliées à cette fin. Cette situation soulève une panoplie de nouvelles questions juridiques, y compris celle de “l’assassinat ciblé” confrontée par le Royaume-Uni en 2015 lorsqu’il dirigeait l’utilisation de la force militaire contre plusieurs Britanniques soupçonnés d’un complot terroriste, conçu à l’étranger, contre le Royaume-Uni. En a résulté un rapport du Parlement britannique mettant en évidence plusieurs dilemmes juridiques. Cet article fait de même pour le Canada en identifiant les principales implications juridiques découlant de l’assassinat ciblé par le gouvernement canadien d’un citoyen canadien à l’étranger. Cet exercice révèle qu’une politique canadienne d’assassinats ciblés obligerait le Canada à faire des choix sur plusieurs questions juridiques épineuses. Tout d’abord, l’article identifie les règles de droit public canadien applicables lorsque les forces armées canadiennes sont déployées dans un conflit armé à l’étranger. Il analyse ensuite le droit international régissant l’utilisation par les états de la force militaire, y-compris les règles applicables au recours à la force armée (jus ad bellum) ainsi que le droit des conflits armés (jus in bello). Il examine également un domaine subsidiaire du droit international, celui qui régit l’utilisation étatique de la force meurtrière en temps de paix. L’article conclut en dégageant de ces divers domaines du droit une série de questions juridiques qui devront nécessairement être traitées avant l’assassinat ciblé d’un Canadien ou d’une Canadienne à l’étranger.

Keywords

Canadian military lawcounter-terrorismhuman rights lawlaw of armed conflicttargeted killingterrorismuse of forceAssassinat ciblédroit militaire canadiendroits de la personnedroit des conflits arméslutte contre le terrorismerecours à la force arméeterrorisme
Type
Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 54 , October 2017 , pp. 134 - 187
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Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2017 

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References

1 For a discussion of the relevant facts, see Letter from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, Doc S/2015/688 (7 September 2015). See also Joint Committee on Human Rights, The Government’s Policy on the Use of Drones for Targeted Killing, Second Report of Session 2015–16, HL Paper 141, Doc HC 574 (10 May 2016), online: <http://www.publications.parliament.uk/pa/jt201516/jtselect/jtrights/574/574.pdf>. Soon after, two other Britons were killed in US airstrikes. In one of these instances, the prime minister announced “that the UK intelligence and security Agencies had been working with US colleagues to track down” the target. UK Intelligence and Security Committee of Parliament, Annual Report 2015–16 at 7, online: <http://isc.independent.gov.uk/files/2015-2016_ISC_AR.pdf>.

2 See Alice Ross & Owen Bowcott, “UK Drone Strikes ‘Could Leave All Those Involved Facing Murder Charges,” The Guardian (10 May 2016), online: <http://www.theguardian.com/politics/2016/may/10/uk-drone-strikes-murder-charges-clarify-legal-basis-targeted-kill-policy-isis>; Joint Committee on Human Rights, supra note 1.

3 UN Special Rapporteur, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions — Addendum: Study on Targeted Killings, Doc A/HRC/14/24/Add.6 (28 May 2010) at para 1 [UN Special Rapporteur, Addendum: Study on Targeted Killings].

4 See UN Special Rapporteur, Addendum: Study on Targeted Killings, supra note 3, for a discussion of instances of targeted killing by Russia, the United States, Israel, and Sri Lanka, as of 2010. See also UN Special Rapporteur, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc A/HRC/25/59 (28 February 2014) (for a focus specifically on killings using drones as of 2014).

5 US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, online: <https://www.whitehouse.gov/sites/default/files/uploads/2013.05.23_fact_sheet_on_ppg.pdf>; US Department of Justice, Office of Legal Counsel, Memorandum for the Attorney General re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi (16 July 2010), online: <https://www.aclu.org/sites/default/files/field_document/2014-06-23_barron-memorandum.pdf>; US Department of Justice, Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior/Operational Leader of Al-Qa’ida or an Associated Force, White Paper (no date), online: <https://www.law.upenn.edu/live/files/1903-doj-white-paper> [US Department of Justice, Lawfulness of a Lethal Operation]; “Secret U.S. Memo Made Legal Case to Kill a Citizen,” New York Times (9 October 2011).

6 Some of the most recent publications on the issue include: Savage, Charlie, Power Wars (New York: Little Brown, 2015)Google Scholar ch 6; Martin S Fleherty, “The Constitution Follows the Drone: Targeted Killins, Legal Constraints, and Judicial Safeguards” (2015) 38(1) Harvard JL & Public Policy 21; Catherine Lotrionte, “Targeted Killings by Drones: A Domestic and International Legal Framework” (2016) 3:1 J Intl & Comp L 19; Tom Farer & Frederic Bernard, “Killing by Drone: Towards Uneasy Reconciliation with the Values of a Liberal State” (2016) 38 Human Rights Q 108; Naz K Modirzadeh, “Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance” (2014) 5:1 Harvard National Security LJ 225.

7 Public Committee against Torture et al v Government of Israel, et al, HCJ 769/02 (14 December 2006).

8 In a 2005 article with a broader subject matter remit than this one, then deputy Judge Advocate General Kenneth Watkin briefly addressed some of the legal dilemmas central to targeted killing, but without reaching conclusions on the legal implications for Canada specifically. Kenneth Watkin, “Canada/United States Military Interoperability and Humanitarian Law Issues: Land Mines, Terrorism, Military Objectives and Targeted Killings” (2005) 15 Duke J Comp & Intl L 281.

9 Daesh is variously known as ISIS, ISIL, or the Islamic State. We have selected Daesh for the reasons articulated in Olivia Star, “The Star Now Says ‘Daesh’ instead of ‘the Islamic State’ or ISIS,” Toronto Star (3 March 2016), online: <http://www.thestar.com/news/world/2016/03/03/the-star-now-says-daesh-instead-of-the-islamic-state-or-isis.html >.

10 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

11 See US Department of Justice, Lawfulness of a Lethal Operation, supra note 5; Joint Committee on Human Rights, supra note 1 (also discussing at times the opaqueness of the UK government’s legal position).

12 See, in particular, the UK government’s position that while it did not agree that a state of armed conflict existed outside of Syria and Iraq, nevertheless the standards applicable to lethal uses of force against Daesh in other places were governed by international humanitarian law and, moreover, compliance with international humanitarian law (IHL) constituted compliance with international human rights law. This position ignores the fact that, as discussed below, IHL only applies where there is an armed conflict, and where there is no such armed conflict, international human rights law applies in full — therefore, mere compliance with IHL (which is generally more permissive of lethal force than is human rights law) would not satisfy human rights standards, should they extend to the British conduct. Ibid at 42, 43, 51. For a further study of the UK legal view, see UK Intelligence and Security Committee (ISC), UK Lethal Drone Strikes in Syria Report (April 2017), online: <http://isc.independent.gov.uk/committee-reports/special-reports>.

13 Portions of this part update and revise the discussion that original appeared in Craig Forcese & Ani Mamikon, “Neutrality Law, Anti-Terrorism and Foreign Fighters: Legal Solutions to the Recruitment of Canadians to Foreign Insurgencies” (2015) 48:2 UBC L Rev 305; Forcese, Craig & Roach, Kent, False Security: The Radicalization of Canadian Anti-terrorism (Toronto: Irwin Law, 2015).Google Scholar

14 Thomas Hegghammer, “The Rise of Muslim Foreign Fighters: Islam and the Globalization of Jihad” (2010/11) 35:3 Intl Security 53 at 55. For an elaboration on foreign fighter issues discussed in this section, see Forcese & Mamikon, supra note 13.

15 Hegghammer, supra note 14 at 55.

16 UNSC Resolution 2178 (2014).

17 UNSC Resolution 2249 (2015). For a discussion of UNSC Resolution 2249 (2015), and its ambiguity on this question, see note 129 below.

18 See Canadian Security Intelligence Service (CSIS), 2011—2013 Public Report, Catalogue no PS71 (Ottawa: CSIS, 2014), online: <https://www.csis.gc.ca>.

19 Ibid at 14.

20 Stewart Bell “They Realized What They Were Doing Was Wrong: Two Canadians Quit Extremist Group, al Shabab,” National Post (12 September 2013).

21 In February 2016, the American Office of the Director of National Intelligence estimated that since 2012 36,500 individuals from more than 100 countries travelled to Syria to engage in combat as members of various armed groups. While an estimated 6,600 are Westerners, only a few dozen Americans are suspected of joining Daesh. Christopher M Blanchard, Carla E Humud & Congressional Research Service, The Islamic State and US Policy (27 June 2016) at 1–2.

22 Public Safety Canada, 2016 Public Report on the Terrorist Threat to Canada (August 2016) at 7. Robert Fife, “Spy Agencies See Sharp Rise in Number of Canadians Involved in Terrorist Activities Abroad,” Globe and Mail (23 February 2016), online: <http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2014-pblc-rpr-trrrst-thrt/2014-pblc-rpr-trrrst-thrt-eng.pdf>.

23 Daniel Leblanc & Colin Freeze, “RCMP Investigating Dozens of Suspected Extremists Who Returned to Canada,” Globe and Mail (8 October 2014), online: <http://www.theglobeandmail.com/news/politics/rcmp-investigating-dozens-of-suspected-extremists-who-returned-to-canada/article20991206/>.

24 Lorne Dawson, Amaranath Amarasingnam & Alexandra Bain, “Talking to Foreign Fighters: Socio-Economic Push Versus Existential Pull Factors,” Canadian Network for Research on Terrorism, Security and Society (May 2016), online: <http://tsas.ca/wp-content/uploads/2016/07/TSASWP16-14_Dawson-Amarasingam-Bain.pdf>.

25 In April 2016, US Air Force Major General Peter Gersten, Deputy Commander for Operations and Intelligence for Operation Inherent Resolve (the US Operation against Daesh in Iraq and Syria) told reporters that in comparison to 2015, the number of foreigners travelling to join the Islamic State on a monthly basis had dropped by up to 90 percent. More recent reporting from the Pentagon, however, places that number at closer to 75 percent. Blanchard, Humud & Congressional Research Service, supra note 21.

26 Richard Barrett, Foreign Fighters in Syria (June 2014) at 7, online: <soufangroup.com/wp-content/uploads/2014/06/TSG-Foreign-Fighters-in-Syria.pdf>.

27 Barak Mendelsohn, “Foreign Fighters—Recent Trends” (2011) 55:2 Orbis 189 at 191.

28 “Osama’s List,” National Post (14 November 2002).

29 See, eg, Commons Subcommittee on National Security of the Standing Committee on Justice and Human Rights, Evidence (1 April 2003), Ward P Elcock, Director, Canadian Security Intelligence Service, online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=808452&Mode=1&Language=E>; Special Senate Committee on the Anti-terrorism Act, Evidence (31 October 2005), Jim Judd, Director, Canadian Security Intelligence Service, online: <http://www.parl.gc.ca/Content/SEN/Committee/381/anti/18eva-e.htm?comm_id=597&Language=E&Parl=38&Ses=1>.

30 “RCMP Investigating Al-Shabab Video Calling for Terrorist Attack on West Edmonton Mall,” National Post (22 February 2015).

31 Letter from the Deputy Permanent Representative of Canada to the United Nations Addressed to the President of the Security Council, UN Doc S/2015/221 (31 March 2015). Charter of the United Nations, (1945) 39 AJIL 190 [UN Charter].

32 National Defence and the Canadian Armed Forces, “Operation Impact: Joint Task Force Iraq,” online: <http://www.forces.gc.ca/en/operations-abroad-current/op-impact.page>.

33 Ibid.

34 Ibid.

35 Peter Zimonjic, “Canada’s New Training Mission in Iraq and Syria Passes Commons Vote,” CBC News (8 March 2016), online: <http://www.cbc.ca/news/politics/isis-vote-mission-iraq-syria-1.3481607>.

36 We have crafted this article imagining a hypothetical direct, targeted killing by Canada. However, we are persuaded that concepts of aiding and abetting in Canadian and international criminal law, the causality concepts in the Charter, discussed below in relation to cases like Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 [Suresh], and the rules of aiding and assisting in the commission of an internationally wrongful act in art 16 of the Rules of States Responsibility (reprinted in (2001) 2:2 YB ILC 65), mean that all of the issues raised in this article would need to be addressed even if the Canadian involvement amounts to a provision of information to an ally in order to facilitate the targeted killing of a Canadian. Therefore, we do not make a distinction in the remainder of this article between direct or indirect Canadian involvement.

37 A 2006 Library of Parliament study concluded: “The Federal Cabinet can, without parliamentary approval or consultation, commit Canadian Forces to action abroad, whether in the form of a specific current operation or future contingencies resulting from international treaty obligations.” Library of Parliament, International Deployment of Canadian Forces: Parliament’s Role, Doc PRB 00-06E (18 May 2006) at 1. Some of the material in this section is adopted, but substantially recrafted, from Forcese, Craig, National Security Law: Canadian Practice in International Perspective (Toronto: Irwin Law, 2008).Google Scholar He also expresses doubt that a parliamentary role may exist by way of constitutional convention.

38 Geneva Conventions, 12 August 1949, 1125 UNTS 3; Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 6 August 1977, 1125 UNTS 3; Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 6 August 1977, 1125 UNTS 609 [Additional Protocol II].

39 Judge Advocate General, Code of Conduct for CF Personnel, Doc B-GG-005-027/AF-023 (20 October 1999).

40 Geneva Conventions Act, RSC 1985, c G-3, s 3.

41 War Crimes and Crimes against Humanity Act, SC 2000, c 24.

42 See Criminal Code, RSC 1985, c C-46, s 5: “Nothing in this Act affects any law relating to the government of the Canadian Forces.”

43 Canada, National Defence, Law of Armed Conflict Manual, Doc B-GJ-005-104/FP-021 (13 August 2001) at 16-8. Criminal Code, supra note 42.

44 National Defence Act, RSC 1985, c N-5, s 60ff [NDA].

45 Ibid, s 130(1) (specifying that an act or omission “that takes place outside Canada and would, if it had taken place in Canada” have constituted an offence under the Criminal Code or any other Act of Parliament is liable to conviction); see also s 273: “Where a person subject to the Code of Service Discipline does any act or omits to do anything while outside Canada which, if done or omitted in Canada by that person, would be an offence punishable by a civil court, that offence is within the competence of … a civil court having jurisdiction in respect of such an offence in the place in Canada where that person is found in the same manner as if the offence had been committed in that place”). For a recent discussion on s 130 (albeit in a different context), see R v Moriarity, 2015 SCC 55 at paras 5ff, [2015] 3 SCR 485.

46 Criminal Code, supra note 42, s 8(3).

47 R v Hape, 2007 SCC 26 at paras 36ff, [2007] 2 SCR 292 [Hape]. It is also possible that a defence of superior orders might exist at common law. See discussion in R v Ribic, 2008 ONCA 790 at paras 65ff, 63 CR (6th) 70. However, this defence is usually associated with a war crime or crime against humanity — and we do not assume such a crime in this article. Moreover, culpability would likely rest with someone within the chain of command.

48 R v Perka, [1984] 2 SCR 232 at 248 [Perka].

49 Ibid at 244, 251.

50 R v Campbell, [1999] 1 SCR 565 at para 41.

51 Perka, supra note 48 at 251.

52 R v Latimer, [2001] 1 SCR 3 at para 28.

53 Criminal Code, supra note 42, s 34.

54 Charter, supra note 10, s 7. Also of potential relevance is s 12, guarding against cruel and unusual treatment, a right also likely engaged infringed by the targeted deprivation of life. See United States of America v Burns, [2001] 1 SCR 283 at para 83 [Burns] (discussing capital punishment). However, since the Court has also said that s 12 informs the content of s 7, we proceed with a s 7 analysis in this article (at para 57).

55 See ibid (fundamental justice applies even to deprivations of life, liberty, or security done by foreign states where there is a sufficient causal connection between the Canadian government’s actions and the deprivation). Suresh, supra note 36 at para 54 (noting that the principle articulated in Burns is a “general one,” not limited to extradition cases).

56 It is difficult to see how the Supreme Court of Canada could conclude that a judicially sanctioned death penalty engages s 7, per Burns, supra note 54 at para 84, but that extrajudicial targeted killings do not.

57 Hape, supra note 47.

58 Ibid at paras 52, 58, 65, 87.

59 Ibid at paras 50, 51; see also paras 52, 90, 101.

60 Khadr v Canada, 2008 SCC 28 at para 18, [2008] 2 SCR 125 [Khadr 2008]. See also Khadr v Canada, 2010 SCC 3 at paras 14ff, [2010] 1 SCR 44 [Khadr 2010].

61 Khadr 2010, supra note 60 at paras 14ff.

62 Most notably, the Federal Court in Slahi suggested that s 7 of the Charter would not apply in circumstances where a foreign national was detained by a foreign government in an internationally wrongful manner because of information provided by and from Canada, unless it could also be shown that Canada participated in the actual detention “contrary to its international law obligation.” Slahi v Canada (Minister of Justice), 2009 FC 160 at para 52, 186 CRR (2d) 160, aff’d (without mention of this issue), 2009 FCA 259.

63 Amnesty International Canada v Canada (Canadian Forces), 2008 FCA 401, 394 NR 352 [Amnesty].

64 In its decision, the Federal Court of Appeal dismissed the lawsuit at least in part because the victims were not Canadians; this article, in comparison, is about the targeted killing of Canadians. Ibid at paras 12, 13. The Amnesty decision also hinged on the fact that, by agreement, Afghanistan had consented to the Canadian military presence and had established governing rules that did not include application of Canadian law to Afghan nationals. Ibid at paras 26ff. Again, it is difficult to see how these considerations would apply to a targeted killing of a Canadian in a foreign jurisdiction, especially in places like Syria where Canada operates without the consent of the territorial sovereign. The issue of “effective control” discussed (with some misunderstanding) by the Court of Appeal is relevant — and is addressed later in this article.

65 Khadr 2008, supra note 60 at para 25.

66 See John Currie, “Khadr’s Twist on Hape: Tortured Determinations of the Extraterritorial Reach of the Canadian Charter” (2008) 46 CYIL 319.

67 Hape, supra note 47 at para 105; see also paras 68, 69.

68 R v Davis (PW), 2013 ABCA 15 at para 78, 75 Alta LR (5th) 386 (per Fraser CJA, dissenting), rev’d 2014 SCC 4 (effectively agreeing with Fraser CJA). See R v Nasogaluak, 2010 SCC 6 at para 38, [2010] 1 SCR 206 [Nasogaluak]: “The excessive use of force by the police officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak’s security of the person that was not in accordance with any principle of fundamental justice”; R v Laforme, 2014 ONSC 1457 at para 175, 310 CRR (2d) 140: “Excessive use of force can give rise to a violation of s. 7 of the Charter.” See also R v Lines, [1993] OJ No 3284 at para 55 [Lines].

69 See, eg, Suresh, supra note 36.

70 R v Oakes, [1986] 1 SCR 103.

71 Nasogaluak, supra note 68 at para 32: “[T]he allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.”

72 See Lines, supra note 68 at paras 55, 58 (concluding that a Criminal Code provision authorizing deadly force to stop a fleeing “felon” violating the right to life, because of the “prospect of deprivation thereof for the most trifling offence is not in accordance with the principles of fundamental justice.” Moreover, the provision did not satisfy s 1: “The use of deadly force does not impair the right ‘as little as possible’. The potential use of deadly force in such a broad range of situations as it may be envisioned is overbroad and entirely lacks proportionality.”

73 UN Charter, supra note 31.

74 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), [1986] ICJ Rep 14 at para 187ff [Military and Paramilitary Activities].

75 A jus cogens — or peremptory — norm “is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155 at 331, art 53. See discussion in Helen Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge: Cambridge University Press, 2005) at 147. For a different view on art 2(4)’s just cogens status, see James Green, “Questioning the Peremptory Status of the Prohibition of the Use of Force” (2011) 32 Mich J Intl L 215.

76 The narrow interpretation of art 2(4) is sometimes raised to justify “humanitarian intervention.” See discussion, eg, in Celeste Poltak, “Humanitarian Intervention: A Contemporary Interpretation of the Charter of the United Nations” (2002) 60 UT Faculty L Rev 1.

77 See discussion in International Law Association (ILA), Draft Report on Aggression and the Use of Force (May 2016) at 3 [ILA, Draft Report on Aggression]. Support for this strict reading of the prohibition on the use of force is found in the UN General Assembly’s influential Declaration on Principles of International Law concerning Friendly Relations and Co-operation, GA Resolution 2625, Annex, 25 UN GAOR, Supp (No 28), UN Doc A/5217 (1970) at 121. The declaration denounces “armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.” While not binding in its own right, the declaration “elaborates the major principles of international law in the UN Charter, particularly on use of force, dispute settlement, nonintervention in domestic affairs, self-determination, duties of cooperation and observance of obligations, and ‘sovereign equality.’ [I]t has become the international lawyer’s favorite example of an authoritative UN resolution.” Oscar Schachter, “United Nations Law” (1994) 88 AJIL 1. Referring in part to this declaration, Schachter has strongly urged a strict reading of the art 2(4) prohibition. See Oscar Schachter, “The Right of States to Use Armed Force” (1984) 82 Mich L Rev 1620. This approach is consistent with the International Court of Justice’s (ICJ) ruling in Case Concerning Armed Activities on the Territory of the Congo, [2005] ICJ Rep 168 at paras 163ff [Case Concerning Armed Activities]: “The Court further affirms that acts which breach the principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.”

78 Tom Ruys, “The Meaning of ‘Force’ and the Boundaries of the Jus Ad Bellum: Are ‘Minimal’ Uses of Force Excluded from UN Charter Article 2(4)?” (2014) 108 AJIL 159 at 163.

79 See discussion in note 193 below and accompanying text.

80 Oliver Dörr, “Use of Force, Prohibition of” in Max Planck Encyclopedia of Public International Law (September 2015) at para 12, online: <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e427>.

81 Military and Paramilitary Activities, supra note 74 at para 228.

82 Dörr, supra note 80 at para 19.

83 Independent International Fact-Finding Mission on the Conflict in Georgia (September 2009), vol 2, n 49, online: <https://www.legal-tools.org/uploads/tx_ltpdb/Independent_International_Fact-Finding_Mission_on_the_Conflict_in_Georgia_Volume_II_2.pdf>. See also Ellen O’Connell, Mary, “The Prohibition on the Use of Force,” in White, Nigel D & Henderson, Christian, eds, Research Handbook on International Conflict and Security Law (Cheltenham, UK: Edward Elgar, 2013)Google Scholar at 106 (noting, for instance, “[l]imited armed force to pluck hostages away from armed captors would also appear to be outside of the Article 2(4) prohibition”). See also discussion in ILA, Draft Report on Aggression, supra note 77 at 3 (suggesting that a de minimis standard may exist but, seemingly, limiting it to true law enforcement actions).

84 Corten, Olivier, The Law against War (Oxford: Hart Publishers, 2010) at 52–92.Google Scholar

85 Ibid at 53 (pointing to Adolph Eichmann’s rendition from Argentina by Israeli agents).

86 Commentators have suggested criteria. Corten proposes that context and state intent matters. He proposes six criteria: first, where the coercive activity occurs in another state’s territory, then it is more likely to transgress art 2(4); second, characterization as use of force is more likely where it arises in circumstances of political or military tension between two (or more) states; third, activity that is approved at the highest level of the state is more likely to be characterized as use of force than is conduct stemming from subordinate approval; fourth, if the target of the military action is the foreign state itself, as opposed to private actors, the conduct is more likely to be a use of force; fifth, an operation precipitating a confrontation or clash between agents of the two (or more) states is more likely to be a use of force; and sixth, the scale of the military intervention is critical, with military conduct involving, eg, bombings likely passing the use of force threshold. Ibid at 91–92.

87 Ibid.

88 Dörr, supra note 80 at paras 18, 19.

89 Ruys, supra note 78 at 192.

90 Ibid at 192.

91 Ibid at 195.

92 Ibid at 209.

93 For a discussion of UNSC Resolution 2249 (2015) and its ambiguity on this question, see note 120 below.

94 See Military and Paramilitary Activities, supra note 74. For a discussion of art 51 and the persistence of a parallel customary source of the right to self-defence, see Leo Van Den Hole, “Anticipatory Self-Defence under International Law” (2003) 19 Am U Intl L Rev 69.

95 Military and Paramilitary Activities, supra note 74 at para 176. See also Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), [2003] ICJ Rep 161 at para 76 [Oil Platforms].

96 Military and Paramilitary Activities, supra note 74 at para 191.

97 Ibid at para 195.

98 Corten, supra note 84 at 403.

99 See discussion in Karl Zemanek, “Armed Attack” in Max Planck Encylopedia of Public International Law (October 2013) at para 9, online: <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e241>. See also discussion in ILA, Draft Report on Aggression, supra note 77 at 4.

100 Zemanek, supra note 99 at para 10.

101 Ibid at para 19.

102 UK government memorandum, cited in Joint Committee on Human Rights, supra note 1 at 41.

103 Ibid at 44. The UK Parliament report takes comfort from UNSC Resolution 2249 (2015) and its invocation of terrorist attacks by Daesh in many locations outside Syria and Iraq through 2015 to conclude that the armed attack threshold was met. The ISC report expresses clear discomfort with the concept of armed attack in the context of the 2015 targeted killings: “Whether terrorist activity might be so severe that it is at the same level as an armed attack by a State is clearly a subjective assessment. While we believe that the threat posed by Khan was very serious, we are unable to assess the process by which Ministers determined that it equated to an ‘armed attack’ by a State.” ISC, supra note 12 at paras 29–30.

104 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136 at para 139 [Construction of a Wall]. The ICJ declined the opportunity to clarify where self-defence against non-state actors existed in other circumstances in its judgment. Case Concerning Armed Activities, supra note 77 at para 147: “[T]he Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces.”

105 See, eg, Major Darren C Huskisson, “The Air Bridge Denial Program and the Shootdown of Civil Aircraft under International Law” (2005) 56 Air Force L Rev 109 at 144: “The concept of an armed attack was left deliberately open to the interpretation of Member States and UN Organs, and the wording is broad enough to include the acts of non-State actors as ‘armed attacks.’” See also Stahn, Carsten, “‘Nicaragua Is Dead, Long Live Nicaragua’: The Right to Self-defence under Art. 51” in Walter, Christian et al, Terrorism as a Challenge for National and International Law: Security versus Liberty (Berlin: Springer, 2003) 830.Google Scholar See also discussion in ILA, Draft Report on Aggression, supra note 77 at 11.

106 UNSC Resolution 1368 (2001); UNSC Resolution 1373 (2001).

107 North Atlantic Treaty Organization, Invocation of Article 5 Confirmed, Press Release (2 October 2001). North Atlantic Treaty, 4 April 1949, 34 UNTS 243.

108 Inter-American Treaty of Reciprocal Assistance, 9 February 1947, OASTS no 8. See Twenty-fourth Meeting of Consultation of Ministers of Foreign Affairs, Terrorist Threat to the Americas, OAS Doc RC.24/Res.1/01 (21 September 2001). Art 3 reads: “[A]n armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by art 51 of the Charter of the United Nations.”

109 See, eg, Jordan Paust, “Use of Armed Force against Terrorists in Iraq, Afghanistan and Beyond” (2002) 35 Cornell Intl LJ 533.

110 We do not, in this article, outline the rules of attribution in the law of state responsibility. For a useful summary, see Alexander Kees, “Responsibility of States for Private Actors” in Max Planck Encyclopedia of Public International Law (March 2011), online: <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1092>. See also discussion in ILA, Draft Report on Aggression, supra note 77 at 12.

111 Note, eg, UNSC Resolution 1373 (2001) at para 2.

112 Ashley S Deeks, “‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense” (2012) 52(3) Va J Intl L 483 at 487–88.

113 Ibid at 549.

114 Abraham D Sofaer, “On the Necessity of Pre-emption” (2003) 14 EJIL 209 at 218–19. For a discussion of the Caroline dispute, see exchange of letters between Daniel Webster and Lord Ashburton (1842), online: <http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm>.

115 See discussion in Deeks, supra note 112 at 486.

116 See discussion in Christian J Tams, “The Use of Force against Terrorists” (2009) 20:2 EJIL 359.

117 Letter from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General, Doc S/2014/695 (23 September 2014): “States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defence, as reflected in art 51 of the Charter of the United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks.”

118 Letter from the Chargé d’affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the President of the Security Council, Doc S/2015/563 (24 July 2015): “It is apparent that the regime in Syria is neither capable of nor willing to prevent these threats emanating from its territory, which clearly imperil the security of Turkey and the safety of its nationals.”

119 Letter from the Permanent Representative of Australia to the United Nations addressed to the President of the Security Council, Doc S/2015/693 (9 September 2015): “States must be able to act in self-defence when the Government of the State where the threat is located is unwilling or unable to prevent attacks originating from its territory.”

120 Letter from the Permanent Representative of Belgium to the United Nations address to the President of the Security Council, Doc S/2016/523 (7 June 2016): “ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence.”

121 Letter from the Charge d’affairs a.i. of the Permanent Mission of Canada to the United Nations addressed to the President of the Security Council, Doc S/2015/221 (31 March 2015): “States must be able to act in self-defence when the Government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its territory.” See also the public defence of the bombing presented by then Minister of National Defence Jason Kenney, video, reproduced in David Pugliese, “Gen Tom Lawson Tries to Dig Jason Kenney Out of a Bomb Crater of His Own Making,” National Post (31 March 2015), online: <http://news.nationalpost.com/news/canada/canadian-politics/david-pugliese-gen-tom-lawson-tries-to-dig-jason-kenney-out-of-a-bomb-crater-of-his-own-making> (in which the minister declares the unwilling and unable standard as a “clear principle of customary international law”).

122 Letter from the Chargé d’affaires a.i. of the Permanent Mission of Germany to the United Nations addressed to the President of the Security Council, Doc S/2015/946 (10 December 2015): “ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic.”

123 Letter from the Permanent Representative of Denmark to the United Nations addressed to the President of the Security Council, Doc S/2016/34 (13 January 2016).

124 Letter from the Permanent Representative of Norway to the United Nations addressed to the President of the Security Council, Doc S/2016/513 (3 June 2016).

125 Identical letters from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council, Doc S/2015/851 (26 November 2014); Letter from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, Doc S/2015/688 (7 September 2015); Letter from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, Doc S/2015/928 (3 December 2015) (all invoking art 51 self-defence to justify use of force in Syria, although not expressly “unwilling and unable”).

126 Reported in Marty Lederman, “The War Powers Resolution and Article 51 Letters Concerning Use of Force in Syria Against ISIL and the Khorasan Group [updated to add statement of the UN Secretary-General],” Just Security (23 September 2014), online: <https://www.justsecurity.org/15436/war-powers-resolution-article-51-letters-force-syria-isil-khorasan-group/>.

127 Ashley Deeks, “The UK’s Article 51 Letter on Use of Force in Syria,” Lawfare Blog (12 December 2014), online: <https://www.lawfareblog.com/uks-article-51-letter-use-force-syria>.

128 Identical letters from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, Doc S/2015/745 (9 September 2015).

129 UNSC Resolution 2249 (2015) at para 5 (calling on UN member states “to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq”). See discussion on the imprecision of this resolution in Dapo Akande & Marko Milanovic, “The Constructive Ambiguity of the Security Council’s ISIS Resolution,” EJIL Analysis (21 November 2015) (arguing, in essence, that the wording permits an “eye of beholder” validation of different legal positions on use of military force on the territory of Syria), online: <http://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution/>.

130 For instance, ILA, Draft Report on Aggression, supra note 77 at 12 urges that “[r]ather than being relied upon as a new justification for resort to force, the unwilling or unable test should be viewed as a component of the necessity criteria. It is an additional test that must be satisfied when taking action against a non-state actor on the territory of another state, and does not obviate the need to adhere to all other obligations attached to the exercise of self-defence. Even after seeking resolution through the host state proves futile, forcible measures by the victim state must be proportionate and be limited to those strictly necessary in the context of self-defence against the non-state actor. Accordingly, even if accepting the right of self-defence against non-state actors, if the forcible measures taken by the victim state unnecessarily include use of force directly against the host state, this may be an instance in which self-defence comes in conflict with Article 2(4).”

131 Military and Paramilitary Activities, supra note 74 at para 237.

132 Oil Platforms, supra note 95 at para 76.

133 International criticism describing military action as reprisals rather than self-defence was acute, eg, after the 1986 US bombing of Libya and in response to at least some Israeli responses to terrorism. See discussion in William V O’Brien, “Reprisals, Deterrence and Self-Defense in Counterterror Operations” (1990) 30 Va J Intl L 421. For a discussion of necessity and the objectives associated with the act of self-defence, see ILA, Draft Report on Aggression, supra note 77 at 8–9.

134 See discussion in Shaw, Malcolm, International Law, 5th ed (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar at 1031, n 88; Duffy, Helen, The ‘War on Terror’ and the Framework of International Law (Cambridge: Cambridge University Press, 2005)CrossRefGoogle Scholar at 162: “[T]he proportionately test should be applied vis-à-vis the requirements of averting the threat, as opposed to in respect of the scale of that threat or of any prior armed attack. Arguments as to numbers of persons killed in the original attack outweighing numbers killed in subsequent counter-measures are of political relevance only.”

135 For a discussion of the different methods of computing proportionality, applied in the specific case of terrorism, see Robert J Beck & Anthony Clark Arend, “‘Don’t Tread on Us’: International Law and Forcible State Responses to Terrorism” (1994) 12 Wisconsin Intl LJ 153 at 206. Notably, in several cases, the ICJ has apparently contrasted the harm caused by armed attack against the scale of the act of self-defence in assessing the existence of proportionality. In Military and Paramilitary Activities, supra note 74 at para 176, the ICJ described proportionality as “proportional to the armed attack,” without further discussing this point. In Oil Platforms, supra note 95 at para 76, the Court concluded that the destruction by the United States of two Iranian oil platforms, “two Iranian frigates and a number of other naval vessels and aircraft” was not proportionate to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life.” Ibid at para 77. See also Case Concerning Armed Activities, supra note 77 at para 147 (noting, without deciding, “that the taking of airports and towns many hundreds of kilometres from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence”).

136 Letter from Daniel Webster to Lord Ashburton (6 August 1842), online: <http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm>.

137 CHM Waldock, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Hague Recueil 451 at 498 [emphasis added].

138 ILA, Draft Report on Aggression, supra note 77 at 10.

139 White House, National Security Strategy of the United States (2002) at 15. See also reporting on President George Bush’s commencement address at West Point. Allen, Mike & DeYoung, Karen, “Bush: US Will Strike Out First against Enemies; In West Point Speech, President Lays Out Broader US Policy,” Washington Post (14 June 2002) at A01.Google Scholar

140 See discussion in W Michael Reisman & Andrea Armstrong, “The Past and Future Claim of Preemptive Self-Defence” (2006) 100 AJIL 525.

141 US Department of Justice, Lawfulness of a Lethal Operation, supra note 5 at 7.

142 Joint Committee on Human Rights, supra note 1 at 45. The parliamentary committee itself raised concerns about the indefiniteness of this standard. Ibid at 47. See also the discussion of imminence and the difficulties associated with it in militarized anti-terrorism in ISC, supra note 12 at para 40.

143 International Committee of the Red Cross (ICRC), Customary IHL, Rule 1. The Principle of Distinction between Civilians and Combatants, online: <https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1>.

144 ICRC, Customary IHL, Rule 14. Rule 6. Proportionality in Attack, online: <https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule14>.

145 ICRC, Customary IHL, Rule 6. Rule 6. Civilians’ Loss of Protection from Attack, online: <https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule6> [emphasis added].

146 Ibid.

147 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (May 2009) at 33ff, online: <https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf>.

148 Ibid at 46.

149 Ibid at 65.

150 Ibid at 70.

151 US Department of Defense, Law of War Manual (June 2015) at 230–32, online: <http://archive.defense.gov/pubs/law-of-war-manual-june-2015.pdf> [US Department of Defense, Law of War Manual].

152 For a critique of the existing Canadian doctrinal documents in this area, see Crawford, Emily, Identifying the Enemy: Civilian Participation in Armed Conflict (Oxford: Oxford University Press, 2015) at 58.CrossRefGoogle Scholar

153 Greenwood, Christopher, “Scope of the Application of Humanitarian Law,” in Fleck, Dieter, ed, The Handbook of Law in Armed Conflicts (Oxford: Oxford University Press, 1995) at 41.Google Scholar The Geneva Conventions, supra note 38, provide, in Common Article 2, that the Conventions “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” [emphasis added]. A declared war may trigger the application of the Geneva Conventions, as will a situation of military occupation, even when not met by armed resistance. Ibid at 41.

154 ILA, The Hague Conference, Use of Force: Final Report on the Meaning of Armed Conflict in International Law (2010) at 28, online: <http://www.rulac.org/assets/downloads/ILA_report_armed_conflict_2010.pdf> [ILA, Hague Conference], citing Additional Protocol II, supra note 38, art 1(2).

155 Ibid, citing ICTY, Prosecutor v Tadic, Case no. IT-94-1-T, Opinion and Judgment, Trial Chamber (7 May 1997) at para 562 [Tadic].

156 ILA, Hague Conference, supra note 154 at 28, citing ICTY, Prosecutor v Kordić and Ćerkez, Case no IT-95-14/2-A, Judgment, Appeals Chamber (17 December 2004) at para 341.

157 ICRC Commentary to art 2 of Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 [Geneva Convention I].

158 Tadic, supra note 155 at para 70; ICTY, Prosecutor v Zejnil Delalic, Case no IT-96-21, Judgment (1998) at para 184 (in internal conflicts, “in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organisation of the parties involved”); ICTR, Prosecutor v Jean Paul Akayesu, Case no ICTR-96-4-T (1998) at para 619 (citing Tadic).

159 ICRC Commentary to art 3 of Geneva Convention I, supra note 157 (noting that Common Article 3 of the Geneva Conventions is not intended to deal with banditry or unorganized and short-lived insurrections. Although clearly not meant as exhaustive, the criteria proposed by the ICRC to distinguish the latter situation from a genuine non-international armed conflict tend to imagine insurgents formed as militaries and potentially controlling portions of state territory). For an emphatic territorial control requirement, see Additional Protocol II, supra note 38, art 1 (applying to “armed conflicts … which take place in the territory of a [state party] … between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations” [emphasis added]). Some observers take the view that the Additional Protocol II-type of non-international armed conflict is a subset of the full range of such conflicts and that Common Article 3 does not have a robust geographic limiter. See Michael N Schmitt, “Charting the Legal Geography of Non-International Armed Conflict” (2014) 90 Intl L Studies 1 at 14.

160 ILA, Hague Conference, supra note 154 at 28.

161 Ibid. These factors relate to the degree of organization required for a non-international armed conflict (NIAC) under Common Article 3 of the Geneva Conventions, supra note 38. NIAC’s governed by Additional Protocol II, apply where additional standards are met by the non-state actor, namely control over a part of its territory as to enable them to carry out sustained and concerted military operations. See Additional Protocol II, supra note 38, art 1(1). For a similar list of variables see, UN Special Rapporteur, Addendum: Study on Targeted Killings, supra note 3 at 17.

162 ILA, Hague Conference, supra note 154 at 30.

163 Ibid.

164 Ibid.

165 For a particularly cogent discussion of these issues, see Schmitt, supra note 159 at 13ff.

166 Ibid at 13.

167 For a discussion on this point, see UN Special Rapporteur, Addendum: Study on Targeted Killings, supra note 3 at 17. See also UN Special Rapporteur, Report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Doc A/68/382 (13 September 2013) at para 65 [UN Special Rapporteur, Extrajudicial, Summary or Arbitrary Executions]: “It is to be questioned whether the various terrorist groups that call themselves Al-Qaida or associate themselves with Al-Qaida today possess the kind of integrated command structure that would justify considering them a single party involved in a global non-international armed conflict.”

168 See, eg, US Department of Justice, Lawfulness of a Lethal Operation, supra note 5 at 3ff. A notable dissenter to this US view is Mary Ellen O’Connell, “Combatants and the Combat Zone” (2009) 43 U Rich L Rev 845.

169 See US Department of Justice, Lawfulness of a Lethal Operation, supra note 5 at 5. There appears to be surprisingly little additional official amplification of this position. In 2012, John Brennan, assistant to the president for homeland security and counterterrorism, asserted at the Wilson Center: “There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” John O Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy,” Wilson Center, online: <https://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy>. The US Department of Defense, Law of War Manual, supra note 151 at 198, cites this speech in asserting that “[t]he law of war does not require that attacks on enemy military personnel or objectives be conducted near ongoing fighting, in a theater of active military operations, or in a theater of active armed conflict.”

170 ICRC, “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts,” Doc 31IC/11/5.1.2 (Paper presented at the thirty-first International Conference (October 2011) at 22, online: <https://app.icrc.org/e-briefing/new-tech-modern-battlefield/media/documents/4-international-humanitarian-law-and-the-challenges-of-contemporary-armed-conflicts.pdf>.

171 ILA, Hague Conference, supra note 154 at 30, 32.

172 UN Special Rapporteur, Addendum: Study on Targeted Killings, supra note 3 at 18.

173 We acknowledge that human rights law also persists even in an armed conflict, subject to being displaced in the event of conflict with the lex specialis, IHL. However, in relation to killing, it seems clear that where IHL does apply, human rights law is interpreted in a manner consistent with its rules on, eg, distinction, permitting the targeted killing of combatants and, presumably, civilians taking a direct part in hostilities. See Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Rep 226, cited in Construction of a Wall, supra note 104 at para 105 (the ICCPR’s, infra note 174, “right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities”). Put another way, we do not see human rights law as providing any additional guidance to the legality of a targeted killing in a circumstance of armed conflict.

174 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 [ICCPR].

175 Code of Conduct for Law Enforcement Officials, adopted by UN General Assembly Resolution 34/169 (17 December 1979) art 3; see also art 1, commentary (a), (b), online: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/LawEnforcementOfficials.aspx> [Code of Conduct]. Note that “law enforcement officials” “reaches all government officials exercising ‘police powers’, sometimes including ‘military authorities’ and ‘security forces’ as well as police officers.” Interim Report on the Worldwide Situation in Regard to Extrajudicial, Summary or Arbitrary Executions Submitted by Philip Alston, Special Rapporteur, UN Doc A/61/311 (5 September 2006) n 31. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (27 August to 7 September 1990) preamble, note [Basic Principles].

176 Basic Principles, supra note 175, art 4.

177 Ibid, art 5.

178 UN Special Rapporteur, Extrajudicial, Summary or Arbitrary Executions, supra note 167 at paras 35ff.

179 Ibid at para 35. On a similar point in relation to the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (ECHR), see Joint Committee on Human Rights, supra note 1.

180 UN Special Rapporteur, Addendum: Study on Targeted Killings, supra note 3 at para 32 [emphasis added]. This position is consistent with those taken in views issued by the UN Human Rights Committee (HRC), interpreting the ICCPR. See, eg, UN HRC, Baumgarten v Germany, UN Doc CCPR/C/78/D/960/2000 (31 July 2003) at para 9.4 (even when used as a last resort lethal force may only be used, under article 6 of the Covenant, to meet a proportionate threat”); UN HRC, Camargo (on behalf of Suarez de Guerrero v Colombia, UN Doc CCPR/C/15/D/45/1979 (31 March 1982) at para 13.2: “[T]he police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some days earlier and their killing by the police deprived them of all the protections of due process of law laid down by the Covenant”). The special rapporteur’s summary is also supported by the standard for lawful killing under the ECHR. Like art 6 of the ICCPR, the ECHR, supra note 179, guards a right to life. It specifies in art 2, however, that this right is not violated where use of force is “no more than absolutely necessary” in “defence of any person from unlawful violence”; “in order to effect a lawful arrest or to prevent the escape of a person lawfully detained”; or “in action lawfully taken for the purpose of quelling a riot or insurrection.” The Inter-American human rights system applies similar standards. See Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc OEA.Sev.L/V/II.116 (22 October 2002) at para 87, online: <http://www.cidh.oas.org/Terrorism/Eng/toc.htm>: “[I]n situations where a state’s population is threatened by violence, the state has the right and obligation to protect the population against such threats and in so doing may use lethal force in certain situations. This includes, for example, the use of lethal force by law enforcement officials where strictly unavoidable to protect themselves or other persons from imminent threat of death or serious injury, or to otherwise maintain law and order where strictly necessary and proportionate.” See also discussion in Gabriella Blum & Philip Heymann, “Law and Policy of Targeted Killing” (2010) 1 Harv Natl Sec J 145 at 160ff.

181 The US legal analysis confuses this point. US legal memoranda tend to bundle domestic constitutional and statutory considerations with public international law standards to create, effectively, a hybridized approach. So, eg, at the same time as they argue that a targeted killing directed at a US citizen who is an operational leader of Al-Qaeda is governed by the law of armed conflict, US legal advisors counsel that the kill mission is only legal if the individual constitutes an imminent threat and a capture operation is infeasible. See US Department of Justice, Lawfulness of a Lethal Operation, supra note 5 at 6.

182 UN Special Rapporteur, Addendum: Study on Targeted Killings, supra note 3 at para 33.

183 See, eg, US Department of Justice, Lawfulness of a Lethal Operation, supra note 5 at 8: “[C]apture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation.”

184 Ibid at 8: “Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant.”

185 See, eg, Basic Principles, supra note 175, art 9: “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury.”

186 US Department of Justice, Lawfulness of a Lethal Operation, supra note 5 at 8.

187 See Restatement (Third) of Foreign Relations Law of the United States (1986) s 402 (generally, a “a state has jurisdiction to prescribe law with respect to … the activities, interests, status, or relations of its nationals outside as well as within its territory”).

188 UN HRC, Lopez v Uruguay, UN Doc CCPR/C/13/D/52/1979 (29 July 1981).

189 UN HRC, Mohammad Munaf v Romania, UN Doc CCPR/C/96/D/1539/2006 (21 August 2009) at 14.2 (an Iraqi-American national claimed that Romania had violated his rights under the Covenant because its embassy had handed him over to the US Army who subsequently tortured him. The committee found that the claim was admissible because of “its jurisprudence that a State party may be responsible for extra-territorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction.” A state engaged in targeted killing would clearly meet this test). UN HRC, General Comment 31, UN GAOR, 59th Sess, Supp no 40, vol 1 at 175, 177, UN Doc A/59/40 (2004) at para 12 (noting that art 2(1)’s references to jurisdiction and territory “does not imply that the State party concerned cannot be held accountable for the violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it” and observing that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party”) [emphasis added]. In its review of state reports on compliance with the ICCPR, the committee has also suggested that state obligations extend to a state’s armed forces stationed abroad. See, eg, UN HRC, Concluding Observations of the Human Rights Committee: Netherlands, UN Doc CCPR/CO/72/NET (2001) at para 8 (relating to the “alleged involvement of members of the [Netherlands] State party’s peacekeeping forces in the events surrounding the fall of Srebrenica, Bosnia and Herzegovina, in July 1995”). More recently, the ICJ referred to this committee jurisprudence in Construction of a Wall, supra note 104 at para 111. In this advisory opinion, it concluded that a state’s ICCPR obligations had extraterritorial reach: “[T]he Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”

190 Committee against Torture, Conclusions and Recommendations of the Committee against Torture: United States of America, 36th Sess, UN Doc CAT/C/USA/CO/2 (2006) at para 15; Charlie Savage, “U.S, Rebuffing U.N., Maintains Stance That Rights Treaty Does Not Apply Abroad,” New York Times (13 March 2014).

191 See Comments by the Government of Canada to the Human Rights Committee, Draft General Comment no 36, Article 9: Liberty and Security of the Person (6 October 2014) at paras 6–7, online: <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/DGCArticle9.aspx>.

192 See discussion in Kees, supra note 110.

193 UN Special Rapporteur, UN Special Rapporteur, Extrajudicial, Summary or Arbitrary Executions, supra note 167 at paras 30, 44.

194 Ibid at paras 49, 51.

195 Military and Paramilitary Activities, supra note 74 at para 202.

196 Ibid at para 205.

197 Ibid.

198 Jennings, Robert & Watts, Arthur, eds, Oppenheim’s International Law: Peace, 9th ed (Oxford: Oxford University Press, 2008) at 418.CrossRefGoogle Scholar

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201 Stessens, Guy, Money Laundering: A New International Law Enforcement Model (Cambridge: Cambridge University Press, 2000) at 280.CrossRefGoogle Scholar

202 Frederick A Mann, “The Doctrine of International Jurisdiction Revisited after Twenty Years” (1984) 186 Collected Courses of the Hague Academy of International Law 38.

203 In this last respect, the most famous instance of covert extraterritorial enforcement jurisdiction was the Israeli abduction of Adolph Eichmann in 1960. Mossad agents covertly snatched Nazi war criminal Eichmann from Argentina. Raanan Rein, “The Eichmann Kidnapping: Its Effects on Argentine-Israeli Relations and the Local Jewish Community” (2001) 7:3 Jewish Social Studies 101 at 105; Stephan Wilske, “Abduction, Transboundary” in Max Planck Encyclopedia of Public International Law (October 2012), online: <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e83?rskey=vKAg4D&result=2&prd=EPIL>. Argentina protested, declaring the conduct “contrary to international norms.” Rein, supra note 203 at 106 (citing then Israeli ambassador to Argentina Levavi to Foreign Ministry (2 June 1960), reprinted in Teudot li-mdiniyut ha-huts shetyisrael 1960 (Jerusalem, 1997) at 14:801-2). It submitted a complaint to the UN Security Council, precipitating an unusual resolution from the Council. That resolution declared that acts such as the kidnapping “affect the sovereignty of a Member State,” “cause international friction,” and may “endanger international peace and security.” The UNSC called on Israel to offer reparations. UNSC Resolution 138 (1960). More recent examples of covert renditions include the Central Intelligence Agency kidnapping rendition of Abu Omar in Milan in 2003. Rachel Donadio, “Italy Convicts 23 Americans for CIA Renditions,” New York Times (4 November 2009). These modern, Bush-era renditions differ, however, from Eichmann in that most seem to have been done with the cooperation or tacit consent of the territorial state (or its security agencies).

204 On this point, see discussion in ILA, Hague Conference, supra note 154 at 31.

205 If we take seriously the Supreme Court of Canada’s comment in Hape, supra note 47, that neither “Parliament nor the provincial legislatures have the power to authorize the enforcement of Canada’s laws over matters in the exclusive territorial jurisdiction of another state,” a targeted killing would be ultra vires the Canadian government. Since it is patently the case that (at least in an armed conflict), Canada does exercise enforcement jurisdiction in the territory of another state, without its consent, we do not think this statement to be a considered one by the Court. See note 67 and discussion.

206 Nor would their participation in acts of violence against or within a foreign state that does not pose considerable threat to Canadian life or property, except where Canada is participating in collective self-defence in association with that foreign state.

207 Joint Committee on Human Rights, supra note 1 at para 4.24. See also ISC, supra note 12 at para 72, expressing related process concerns.