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The Rogue Civil Airliner and International Human Rights Law: An Argument for a Proportionality of Effects Analysis within the Right to Life
Published online by Cambridge University Press: 09 March 2016
Summary
Existing theoretical approaches to international human rights law governing the state’s duty to respect and ensure the right not to be arbitrarily deprived of life fail to provide a satisfactory analytical framework within which to consider the problem of a rogue civil airliner — a passenger-carrying civil aircraft under the effective control of one or more individuals who intend to use the aircraft itself as a weapon against persons or property on the surface. A more satisfactory approach is provided by the addition of a norm of proportionality of effects that is analogous to those that have been developed within the frameworks of international humanitarian law, moral philosophy, and modern constitutional rights law. This additional norm would apply only where there is an irreconcilable conflict between the state’s duties in respect of the right to life such that all of the courses of action available will result in innocent persons being deprived of life.
- Type
- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 48 , 2011 , pp. 39 - 96
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2011
References
1 See Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295, Can TS 1944 No 36 (entered into force 4 April 1947) [Chicago Convention]; International Civil Aviation Organization (ICAO), Security: Safeguarding International Civil Aviation against Acts of Unlawful Interference, Annex 17 to the Convention on International Civil Aviation, 8th edition (entered into force 1 July 2006), in particular, para 2.2.2 [Annex 17 to the Chicago Convention].
2 See, eg, US Department of Homeland Security, National Strategy for Aviation Security (Washington, DC: Department of Homeland Security, 2007) at 16, 18-20, online: Department of Homeland Security <http://www.dhs.gov/xlibrary/assets/laws_ hspd_aviation_security.pdf>. More generally, see Annex 17 to the Chicago Convention, supra note 1 .
3 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, 10 September 2010, art 1 (f) [not yet in force] [Beijing Convention]. As noted at art 24, this convention is intended to supersede, as between states parties, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 178, Can TS 1973 No 3 (entered into force 26 January 1973), as amended by the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention of 23 September 1971, 24 February 1988, 1589 UNTS 474, 27 ILM 627.
4 In North America, Canadian and American fighter aircraft controlled by NORAD are permanently on alert to intercept and, under particular (and classiied) circumstances, shoot down rogue civil aircraft. See Ian MacLeod, “Canada’s ‘Unthinkable Protocol’ for Shooting Down a Hostile Airliner, Ottawa Citizen (10 July 2011 ), online: Ottawa Citizen <http://www.ottawacitizen.com/news/Canada+unthinkable+protocol+shooting+down+hostile+airliner/5079275/story.html>; Craig Mellow, “Don’t Cross That Line,” Air and Space Magazine (1 March 2010), online: Air and Space Magazine <http://www.airspacemag.com/flight-today/dont-cross-that-line.html>; Grant, Rebecca, The War of 9/11: How the World Conflict Transformed America’s Air and Space Weapon (Arlington, VA: Air Force Association, 2005) at 19–20 Google Scholar. For a fairly forthcoming description of the process followed in the United Kingdom in respect of rogue civil aircraft, see Richard Norton-Taylor, “RAF Jets Scrambled after Two Passenger Plane Terrorist Alerts,” The Guardian (29 March 2010), online: Guardian Unlimited <http://www.guardian.co.uk/uk/2010/mar/29/raf-jets-scrambled-terrorist-alerts>.
5 I use the term innocent to denote persons who “have done nothing, and are doing nothing that entails the loss of their rights.” See Walzer, Michael, Just and Unjust Wars, 4th edition (New York: Basic Books, 1977) at 146.Google Scholar
6 It is this circumstance — the presence of innocent persons on board — that, for the purposes of my analysis, most deines the a rogue civil airliner subset. This distinction between rogue civil aircraft and rogue civil airliner is based upon a similar one drawn in the recently published Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the Humanitarian Policy and Conflict Research Manual on International Law Applicable to Air and Missile Warfare, version 2.1 (March 2010), online: Program on Humanitarian Policy and Conflict Research <http://ihlresearch.org/amw/Commentary%20on%20the%20HPCR%20Manual.pdf> [Harvard Manual]. The intention of the distinction is to emphasize that aircraft carrying innocent (“civilian”) passengers are to be treated with “particular care in terms of precautions” (see rules 1 (h) and 1 (i)).
7 This definition of what constitutes a satisfactory framework for legal analysis is based upon a formulation employed by Kai Möller in discussing legal challenges posed by the threat of terrorism. See Kai Möller, “On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the German Federal Constitutional Court” (2006) 51 PL 457 at 465. Nils Melzer uses a similar definition of satisfactory — namely that the normative standards under discussion “meet the demands of both operational reality and humanity in that they entail neither unreasonable restraints for the operating States nor unacceptable risks for the individuals exposed to their authority or power.” Melzer, Nils, Targeted Killing in International Law (Oxford: Oxford University Press, 2008) at 82 CrossRefGoogle Scholar; see also at 431 .
8 Chicago Convention, supra note 1; Protocol Relating to an Amendment to the Convention on International Civil Aviation, 10 May 1984, 2122 UNTS 337, 23 ILM 7045 (entered into force 1 October 1998) [Article 3bis].
9 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 [UN Charter].
10 Michael Milde, who was the director of the ICAO Legal Bureau at the time of its adoption, argues that Article 3bis, supra note 8, was intended to limit states’ use of weapons only in respect of aircraft registered in other states. See Michael Milde, “Interception of Civil Aircraft versus Misuse of Civil Aviation” (1986) 11 Ann Air & Sp L 105 at 126. See also Robin Geiß, “Civil Aircraft as Weapons of Large-Scale Destruction: Countermeasures, Article 3bis of the Chicago Convention, and the Newly Adopted German ‘Luftsicherheitsgesetz’” (2005) 27:1 Mich J Int’l L 227 at 250–51.
11 UN Charter, supra note 9.
12 Provost, René, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 201 CrossRefGoogle Scholar; Kretzmer, David, “Rethinking the Application of IHL in Non-International Armed Conflicts” (2009) 42:1 Israel LR 8 at 9–10.Google Scholar
13 See, eg, International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, art 2(1), Can TS 1976 No 47 (entered into force 23 March 1976) [ICCPR]; Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, art 1, Eur TS 5 (entered into force 3 September 1953) [ECHR].
14 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), [1970] ICJ Rep 3 at paras 33–34.
15 See, eg, Dinstein, Yoram, “Terrorism as an International Crime” (1987) 19 Israel YB on Human Rights 55 at 63 Google Scholar, quoted in Watkin, Kenneth, “Assessing Proportionality: Moral Complexity and Legal Rules” (2005) 8 YB Int’l Human L 3 at 14 Google Scholar. This view of the pre-eminence of the right is also shared by the United Nations Human Rights Committee, which calls the right to life “the supreme right.” See General Comment No 6: Article 6 (The Right to Life), UN Human Rights Committee, 16th Sess, ( 1982) in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1 /Rev.1 , ( 1994) at 128. See, cf, Saskia Hufnagel, “German Perspectives on the Right to Life and Human Dignity in the ‘War on Terror’” (2008) 32 Criminal LJ 100 at 101 : “Human rights lawyers typically disclaim any hierarchy of rights.”
16 Dinstein, Yoram, “The Right to Life, Physical Integrity and Liberty” in Henkin, Louis, ed, The International Bill of Human Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) 114 at 115 Google Scholar, quoted in Ramcharan, BG, “The Concept and Dimensions of the Right to Life,” in Ramcharan, BG, ed, The Right to Life in International Law (Dordrecht: Martinus Nijhoff Publishers, 1985) 1 at 4.Google Scholar
17 ICCPR, supra note 13. As of 27 September 2011, the Covenant has 167 states parties. See United Nations Treaty Collection, online: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>.
18 ICCPR, supra note 13, art 6(1) [emphasis added]: “Every human being has the right to life … No one shall be arbitrarily deprived of his life.”
19 Ibid, art 2(1): “Each State Party … undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.”
20 American Convention on Human Rights, 22 November 1969, 1144 UNTS 123, art 4(1), OAS TS No 36, 9 ILM 99 (1969) (entered into force 18 July 1978).
21 African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217, art 4, 21 ILM 58 (1981) (entered into force 21 October 1986).
22 See Arab Charter on Human Rights, 22 May 2004, art 5(2), reprinted in (2005) 12 Int’l Human Rights Rep 893 (entered into force 15 March 2008).
-
23
23 ECHR, supra note 13, art 2(2): “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
-
a.
a. in defence of any person from unlawful violence;
-
b.
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
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c.
c. in action lawfully taken for the purpose of quelling a riot or insurrection.”
24 See McCann and Others v United Kingdom (1995), 324 ECHR (Ser A) 4 at para 161, 21 EHRR 97 [McCann and Others, cited to ECHR], where the court, in finding that the right to life imposes a positive obligation upon states to conduct an effective official investigation into deaths caused by the State’s use of lethal force, noted that in the absence of such a requirement, “a general legal prohibition of arbitrary killing by the agents of the State would be ineffective.”
25 Ramcharan, BG, “The Drafting History of Article 6 of the International Covenant on Civil and Political Rights,” in Ramcharan, , supra note 16, 42 at 43, 51–52 Google Scholar. As CK Boyle points out, the negotiators of the ICCPR appear to have arrived at the concept of an arbitrary deprivation of life as a compromise, with the expectation that its substantive content would emerge from future jurisprudence, soft law developments and state practice: “No reading of the travaux [préparatoires] of Article 6 of the Covenant could possibly conclude that there was any consensus as to the meaning of arbitrary or as to its appropriateness in that Article.” Boyle, CK, “The Concept of Arbitrary Deprivation of Life,” in Ramcharan, , supra note 16, 221 at 225.Google Scholar
26 Akandji-Kombe, Jean-Francois, Positive Obligations under the European Convention on Human Rights: A Guide to the Implementation of the European Convention on Human Rights (Strasbourg: Council of Europe, 2007) at 5 Google Scholar; Nsereko, Daniel D “Arbitrary Deprivation of Life: Controls on Permissible Deprivations” in Ramcharan, , supra note 16, 245 at 246.Google Scholar
27 Akandji-Kombe, supra note 26 at 7, 11 .
28 General Comment no 31: Nature of the General Legal Obligation on States Parties to the Covenant, UN Human Rights Committee, 80th Sess, UN Doc CCPR/C/21 /Rev. 1 / Add.13 (2004) at para 8 [General Comment no 31].
29 Gaggioli, Gloria and Kolb, Robert, “A Right to Life in Armed Conflicts?: The Contribution of the European Court of Human Rights” (2007) 37 Israel YB on Human Rights 115 at 129 Google Scholar; Osman v United Kingdom (1998), 95 ECHR (Ser A) 3124 at para 115ff, 29 EHRR 245. See also Philip Alston, Interim Report on the Worldwide Situation in Regard to Extrajudicial, Summary or Arbitrary Executions, UNGAOR, 61st Sess, UN Doc A/61/311 (2006) at para 37.
30 Code of Conduct for Law Enforcement Officials, GA Res 34/169, UNGAOR, 34th Sess, UN Doc A/34/169 (1979), commentary to art 1, paras (a) and (b).
31 Kretzmer, supra note 12 at 24.
32 Nsereko, supra note 26 at 246.
33 The norms are drawn, to a considerable degree, from the Code of Conduct for Law Enforcement Officials, supra note 30, and from the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 8th UN Congress on the Prevention of Crime and Treatment of Offenders, UN Doc A/CONF.144/ 28/Rev.1 (1990). Alston points out that their value lies in the fact that these documents were “developed through intensive dialogue between law enforcement experts and human rights experts” and that the “process of their development and adoption involved a very large number of States and provides an indication of the near universal consensus on their content.” See Alston, supra note 29 at para 35. More broadly, the norms are also consistent with the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, ECOSOC, 41st Sess, UN Doc E/CN.4/1984/4 (1984) [Siracusa Principles], see particularly arts 5, 10, and 11 , and with the approach to limitations captured within the term “arbitrary” in the context of other protected rights that are similarly not subject to an internal limitation clause. See, for instance, Toonen v Australia, UN Human Rights Committee, 50th Sess, UN Doc CCPR/C/50/ D/488/1992 (1994). The committee opined that in order to not be arbitrary, “any interference with privacy [as protected by art 17 of the Covenant] must be proportional to the end sought and be necessary in the circumstances of any given case” (at paras 8.3-8.6).
34 Gaggioli and Kolb, supra note 29 at 134; Melzer, supra note 7 at 100; Boyle, supra note 25 at 239.
35 Concise Oxford Dictionary of Current English, 9th edition (Oxford: Oxford University Press, 1995), sub verbo “arbitrary.”
36 Depending upon the constitutional framework of the state concerned, the form of such authorization can include: primary legislation enacted by a legislative body; secondary legislation enacted by the executive pursuant to authority granted in primary legislation or a constitutional document; exercises of discretionary authority granted in legislation; or authority derived from constitutionally permitted exercises of residual executive (or “Crown”) prerogative powers.
37 See, for instance, Nsereko, supra note 26 at 248, positing that a law authorizing a deprivation of life must not, inter alia, be “despotic, tyrannical and in conflict with international human rights standards or international humanitarian law.”
38 Code of Conduct for Law Enforcement Officials, supra note 30, arts 1, 3 (see also commentary to art 3, para a).
39 See, eg, Nuotio, Kimmo, “Security and Criminal Law: The Difficult Relationship,” in Scheinin, Martin et al, eds, Law and Security: Facing the Dilemmas, Working Paper (Florence: European University Institute Department of Law, 2009–11 ) 23 at 23 Google Scholar, online: Social Sciences Research Network <http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1555686_code97794.pdf?abstractid=1555686&mirid=1>; Lucas Lixinski, “The Rights/Security Debate in the Inter-American System,” in Scheinin et al., 97 at 97.
40 Melzer, supra note 7 at 101 .
41 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc OEA/Ser.L/V/II.116/Doc.5 (2002), rev 1, corr, at para 88 [Report on Terrorism and Human Rights]. See also American Convention on Human Rights, supra note 20, art 32(2), which provides that “[t]he rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.”
42 Permissibility of Shooting Down a Passenger Aircraft in the Event of a Danger That It Has Been Used for Unlawful Acts, and Where State Security Is Threatened, Case K44/07 (2008) (Constitutional Tribunal of the Republic of Poland) [Permissibility of Shooting Down a Passenger Aircraft (English summary)]. Although a complete translation does not exist, an English summary contains excerpts. See Polish Constitutional Tribunal, online: <http://www.trybunal.gov.pl/eng/summaries/documents/K_44_07_GB.pdf> at para 15.
43 Lixinski, supra note 39 at 97.
44 See, eg, Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948), art 29(2): “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
45 Phillip Alston, Report on Extrajudicial, Summary or Arbitrary Executions: Addendum: Study on Targeted Killings, UNHRC, 14th Sess, UN Doc A/HRC/14/24/Add. 6 (2010) at para 33.
46 Lazarus, Liora, “Mapping the Right to Security,” in Goold, Benjamin J and Lazarus, Liora, eds, Security and Human Rights (Oxford: Hart, 2007) 325 at 342 Google Scholar. See Alston, supra note 29 at para 37.
47 Report on Terrorism and Human Rights, supra note 41 at para 111.
48 Ibid. See also Declaration of Minimum Humanitarian Standards, art 5(1), reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Sixth Session, UNESCOR, 51 st Sess, UN Doc E/CN.4/1995/116 (1995) [Declaration of Minimum Humanitarian Standards]; ECHR, supra note 13, art 2; Kretzmer, supra note 12 at 24.
49 Kretzmer, supra note 12 at 24, argues against introducing an IHL-like principle of distinction into the law enforcement paradigm, arguing that doing so would defeat the humanitarian purpose that the principle plays in IHL: “[F]orbidding the use of force against some persons … would by implication be legitimizing use of force against others.” This is a valid concern, but it is not one that arises from the conduct-based distinction discussed earlier. It does, however, point to the importance of clarity in the language used to express related but different (indeed, distinct) concepts.
50 Melzer, supra note 7 at 102.
51 This characterization of necessity is Melzer’s, supra note 7 at 101.
52 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 33, art 9. Alston asserts that the substance of art 9 reflects customary international law. Alston, supra note 29 at para 35.
53 Code of Conduct for Law Enforcement Officials, supra note 20, art 3. Alston asserts that the substance of art 3 reflects customary international law. Alston, supra note 29 at para 35.
54 Report on Terrorism and Human Rights, supra note 40 at para 88; Gaggioli and Kolb, supra note 29 at 136.
55 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 33, art 4. See also Gaggioli and Kolb, supra note 29 at 137.
56 Code of Conduct for Law Enforcement Officials, supra note 30, commentary to art 3; ECHR, supra note 13, art 2(2). See also Isayeva, Yusupova and Bazayeva v Russia, Case nos 57947/00, 57948/00, and57949/ 00 (24 February 2005) (ECtHR) at para 169 [Isayeva I]; Isayeva v Russia, Case no 57950/00 (24 February 2005) (ECtHR) at para 173 [Isayeva II].
57 Melzer, supra note 7 at 101 .
58 Note that these first two elements of the principle of precaution simply reflect the principles of qualitative and quantitative necessity.
59 Melzer, supra note 7 at 102. See also Alston, supra note 29 at para 41.
60 Code of Conduct for Law Enforcement Officials, supra note 30, art 3; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 33, arts 4, 5.
61 Isayeva II, supra note 56 at para 176; Gaggioli and Kolb, supra note 29 at 134.
62 Isayeva I, supra note 56 at para 169; Isayeva II, supra note 56 at 173. Interestingly, the European Court of Human Rights’s (ECtHR) approach shows a strong relationship between the concept of force that is “no more than absolutely necessary” to achieve a legitimate aim and force that is “strictly proportional” to the achievement of the same. The first term appears in art 2(2) of the ECHR; the second does not. The court treats “the concept of proportionality as being inherent in the idea of necessity” and, in fact, uses “absolute necessity” and “strict proportionality” interchangeably. See Boyle, supra note 25 at 239 and discussion in note 95 and associated text. For an approach that does assert a distinction between necessity and proportionality of force, see Alston, supra note 29 at paras 40–44.
63 Declaration of Minimum Humanitarian Standards, supra note 48, art 5(2); Code of Conduct for Law Enforcement Officials, supra note 30, commentary to art 3 at para b; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 33, art 5(a); Melzer, supra note 7 at 101.
64 Alston, supra note 29 at para 42.
65 Leaving aside other potentially legitimate aims for the use of deadly force in a law enforcement context, some scholars argue that the only permissible reason for the state to deprive a person of life is to prevent that person from taking other lives. See Boyle, supra note 25 at 241–42 (who, in 1985, saw this standard as lex ferenda — a “goal” towards which IHRL should strive to evolve). See also Alston, supra note 29 at para 44 (where Alston asserts the standard as lex lata).
66 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 33, art 22; General Comment no 31, supra note 28 at para 6. See also Kretzmer, supra note 12 at 26, 36.
67 See Boyle, supra note 25 at 241.
68 McCann and Others v United Kingdom, supra note 24 at para 161 .
69 Isayeva I, supra note 56 at paras 208-13; Isayeva II, supra note 56 at paras 209–14. See also Amichai Cohen, Proportionality in Modern Asymmetrical Wars (Jerusalem: Jerusalem Center for Public Affairs, 2010) at 33, online: Jerusalem Center for Public Affairs <http://www.jcpa.org/text/proportionality.pdf>.
70 For the purposes of the present analysis, the deinition of collateral damage is that used by the group of experts who drafted the Harvard Manual, supra note 6, rule 1 (l): “’Collateral damage’ means incidental loss of civilian life, injury to civilians and damage to civilian objects or other protected objects or a combination thereof, caused by an attack on a lawful target.” This deinition is derived from language set out in Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, arts 51 (5)(b), 57(2), Can TS 1991 No 2 (entered into force 7 December 1979) [Additional Protocol I].
71 Dr H v s 14.3 of the Aviation Security Act of 11 January 2005, [2006] 1 BvR 357/05 at para 153 (German Federal Constitutional Court) [Dr H]. An English translation of the complete judgment may be found online: Das Bundesverfassungsgericht <http://www.bundesverfassungsgericht.de/en/decisions/rs20060215_1bvr035705en.html>. Under the impugned legislation, the resort to shooting down the aircraft was subject to several conditions: the measures had to be necessary; cause the least impairment to individuals and the general public; and not result in a “detriment that is recognisably out of proportion to the aspired success.” Aviation Security Act (Luftsicherheitsgesetz—LuftSiG) of 11 January 2005, Federal Law Gazette (Bundesgesetzblatt) I at 78, para 14(2). A similar decision by the Polish Supreme Court striking down a similar law has attracted virtually no international attention. See Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 42.
72 Dr H, supra note 71 at para 116.
73 See Basic Law for the Federal Republic of Germany, 23 May 1949, art 2 (Oficial English translation), online: Deutscher Bundestag <https://www.btg-bestellser-vice.de/pdf/80201000.pdf>, which provides:
Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
Every person shall have the right to life and physical integrity … These rights may be interfered with only pursuant to a law.
74 Ibid, art 1(1): “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Möller, supra note 7 at 458, notes that the oficial translation of the Basic Law may lack nuance. The German word used in this provision, “unantasbar,” is more appropriately translated as “untouchable,” a term that Möller suggests implies an even stronger degree of protection — that is, one where “any interference will automatically amount to a violation of the right” — than “inviolable.”
75 See, eg, Oliver Lepsius, “Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-Terrorism Provision in the New Air-Transport Security Act” (2006) 7:9 German LJ 761 (praising the decision as “remarkable” and criticizing the act as “pretend[ing] to prevent something which will hardly happen again in this way” (at 775); and Tatjana Hörnle, “Shooting Down a Hijacked Plane: The German Discussion and Beyond” (2009) 3:2 Crim L & Phil 111 (particularly critical of the court’s absolutist approach to human dignity). In an earlier article, Hörnle provides a lengthy list of articles approving of the decision. See Tatjana Hörnle, “Hijacked Airplanes: May They Be Shot Down?” (2007) 10:4 New Criminal L Rev 582 at 584, n 7. In contrast, the bulk of the English-language literature (much of it written from the perspective of Anglo-American legal culture) seems to be more critical of the decision. See, eg, Michael Bohlander, “In Extremis: Hijacked Airplanes, ‘Collateral Damage’ and the Limits of Criminal Law” (2006) Crim L Rev 579 at 589–90.
76 Melzer, supra note 7 at 15.
77 Eg, Melzer uses the Aviation Security Act case as an example in the introductory portion of his book on targeted killings but does not revisit it (ibid at 15-18). Kretzmer, supra note 12 at 28, also makes brief use of the outcome of the case to buttress an argument but does not analyze it. Similarly, Lazarus, supra note 46 at 343, uses the case to illustrate the limits to positive duties of the state to protect security, but she does not critique it. One might speculate as to whether this scholarship suffers from an availability heuristic — that is, “a mental shortcut by which individuals correlate the probability of an event to their ability to call to mind an example of that event” (see “Responding to Terrorism: Crime, Punishment and War” (2002) 115:4 Harv L Rev 1217 at 1230) — in that the “paradigm” law enforcement case involves small-scale, low-level, tactical policing and extreme cases such as the rogue civil airliner are less available (or at least were in the pre-9/11 era when the existing framework of IHRL was developed). It would, however, require significantly more research (into travaux préparatoires, conference proceedings, and so on) to determine whether the heuristic exists and to exclude other possible explanations for IHRL’s relative silence on the issue.
78 Theodor Meron, “The Humanization of Humanitarian Law” (2000) 94:2 AJIL 239 at 240.
79 Alston, supra note 46 at para 86. Note that in the preceding paragraph, Alston also expresses the view that a targeted killing within a state’s own territory in a law enforcement context “would be very unlikely to meet human rights law limitations on the use of lethal force.”
80 Thomas W Smith, “Can Human Rights Build a Better War?” (2010) 9:1 J Human Rights 24 at 25. See also Cohen, supra note 69 at 14-19, pointing out that some human rights advocates seek to extend this approach even into the armed conflict context.
81 Kretzmer, supra note 12 at 27. This view forms the foundation of a broader argument that international human rights law (IHRL) alone should govern the conduct of non-international armed conflicts since its rejection of collateral damage and of a norm of proportionality of effects would provide greater protection to innocent persons.
82 Ibid at 27, n 52.
83 Ibid.
84 Ibid at 29, n 58.
85 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [ 1996] ICJ Rep 226 at para 25. William Schabas hints at such an argument. See William Schabas, “Lex Specialis? Belt and Suspenders?: The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum’ (2007) 40:2 Israel LR 592 at 604. Marko Milanovic discusses appeals to the lex specialis as a means of avoiding conflicts between norms of IHRL and international humanitarian law (IHL), similarly implying that in the absence of a conflict, no appeal to the lex specialis would be required. See Marko Milanovic, “A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law” (2009) 14:3 J Conflict & Security 459.
86 Möller makes a similar argument in respect of the extreme consequences of the German Federal Constitutional Court’s absolutist approach to human dignity. See Möller, supra note 7 at 458–59.
87 Gaggioli and Kolb, supra note 29 at 137. Boyle, supra note 25 at 240, in discussing IHRL’s approach to proportionality also appears to advocate a comparison of end-states that looks very much like a proportionality of effects analysis, requiring that “it be evident that greater damage or harm will result unless the purpose is achieved” when using force for a legitimate purpose. He does this, however, at the conclusion of a discussion in which he makes clear his rejection of incidental deaths of innocent persons.
88 See ECHR, supra note 13, art 2.
89 Isayeva II, supra note 56 at para 191.
90 Ibid at para 180; Isayeva I, supra note 56 at para 178.
91 Isayeva I, supra note 56 at para 178; Isayeva II, supra note 56 at para 180.
92 Isayeva II, supra note 56 at para 191 . The court declined to consider or apply IHL despite evidence that could have supported a characterization of the situation as a non-international armed conflict and the submissions of the applicants and third party interveners urging it to do so.
93 Isayeva I, supra note 56.
94 Isayeva II, supra note 56.
95 ECHR, supra note 13, art 2(2).
96 Isayeva I, supra note 56 at para 169; Isayeva II, supra note 56 at para 173.
97 Ibid.
98 Isayeva II, supra note 56 at para 176. See also Isayeva I, supra note 56 at para 171.
99 Isayeva I, supra note 56 at para 169; Isayeva II, supra note 56 at para 173.
100 Isayeva I, supra note 56 at paras 181 , 199.
101 Isayeva II, supra note 56 at paras 180, 200.
102 Ibid at paras 181 , 191.
103 Isayeva I, supra note 56 at para 199; Isayeva II, supra note 56 at para 200.
104 Isayeva I, supra note 56 at paras 194-98; Isayeva II, supra note 56 at paras 189–90, 198–99.
105 Isayeva I, supra note 56 at paras 186, 189, 195–96; Isayeva II, supra note 56 at paras 184–96.
106 Eg, Ergi v Turkey (1998), 81 ECHR (Ser A) 1751, 32 EHRR 18; Ahmet Özkan and Others v Turkey, No 21689/93 (6 April 2004).
107 See, eg, Gaggioli and Kolb, supra note 29 at 124ff.
108 See, eg, Isayeva I, supra note 56 at paras 157, 162–67; Isayeva II, supra note 56 at para 167.
109 See William Abresch, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya” (2005) 16:4 EJIL 74; Kretzmer, supra note 12 at 30–31.
110 Melzer, supra note 7 at 386–92.
111 Isayeva II, supra note 56 at para 191 .
112 For a judicial elaboration of this concern in a constitutional rights context, see Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at paras 92-95, 120 DLR (4th) 12 [Dagenais].
113 See Kretzmer, supra note 12 at 28-29, for a critique of this approach from an absolutist IHRL perspective.
114 Watkin, supra note 15 at 34.
115 Kretzmer, supra note 12 at 10 [footnotes omitted].
116 International Committee of the Red Cross (ICRC), International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence, Summary Report of the XXVIIth Round Table on Current Problems of International Humanitarian Law (November 2003), online: ICRC <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5UBCVX/$File/Interplay_other_regimes_Nov_2003.pdf> at 13.
117 Gabriella Blum, “The Laws ofWar and the ‘Lesser Evil’” (2010) 35:1 Yale J Int’l L 1 at 44.
118 Henckaerts, Jean-Marie and Doswald-Beck, Louise, eds, Customary International Humanitarian Law (Cambridge: International Committee of the Red Cross, 2005)CrossRefGoogle Scholar vol 1 (Rules), rule 14 at 46; Additional Protocol I, supra note 70, arts 51 (5) (b), 57(2)(a)(iii).
119 Gardam, Judith, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 102 and 112 CrossRefGoogle Scholar; Kretzmer, supra note 12 at 27.
120 Cohen, supra note 69 at 9.
121 Ibid at 14. See also Watkin, supra note 15 at 47.
122 The Harvard Manual is not a binding legal instrument. Its authority is persuasive. It was prepared by a group of experts in the IHRL and IHL fields and is intended to be an elaboration of international law as applicable specifically to air and missile warfare. See Harvard Manual, supra note 6, rule 2.
123 Ibid, rule 10(b)(ii). See also Additional Protocol I, supra note 70, art 52.
124 Harvard Manual, supra note 6, rule 1 (t), commentary to rule 27(a) at para 2, commentary to rule 58 at paras 7, 10.
125 Ibid, rule 63, commentary to rule 27(a).
126 Ibid, rule 58; see also section J(III).
127 Ibid, rule 68(b).
128 Ibid, rule 40.
129 Ibid, rules 38, 70.
130 Ibid, rule 68(a). See also generally Section G, rule 58, commentary to rule 10.
131 Ibid, rules 68(a), 68(d).
132 Ibid, rule 68(c).
133 Ibid, rule 68(d).
134 See Kretzmer, supra note 12 at 29.
135 Dr H, supra note 71. See Möller, supra note 7 at 464: “The problem of whether it is permissible to kill some in order to save others from being killed is at the centre of much contemporary debate in moral theory.”
136 Stacy, Tom, “Acts, Omissions and the Necessity Killing of Innocents” (2002) 29:3 Am J Crim L 481 at 508.Google Scholar
137 Ibid at 507–12. See Cummiskey, David, “Kant’s Consequentialism” 100:3 Ethics 586 CrossRefGoogle Scholar, which makes a similar argument. See also Blum, supra note 117 at 40–44.
138 Sunstein, Cass R and Vermeule, Adrian, “Is Capital Punishment Morally Required?: Acts, Omissions and Life-Life Tradeoffs” (2005) 58:3 Stan L Rev 703 at 708.Google Scholar
139 Blum, supra note 117 at 43ff.
140 See Botros, Sophie, “An Error about the Doctrine of Double Effect” (1999) 74:1 Philosophy 71 at 72–73.CrossRefGoogle Scholar
141 See, eg, Boyle, Joseph M Jr, “Toward Understanding the Principle of Double Effect” (1980) 90:4 Ethics 527 at 528–29.CrossRefGoogle Scholar
142 These elements paraphrase those set out by Walzer, supra note 5 at 153 and 129. For an alternative formulation, see Botros, supra note 140 at 72–73.
143 See, eg, Watkin, supra note 15 at 26. Blum, supra, note 117 at 40, equates IHL’s norm of proportionality of effects with the doctrine of double of effect (DDE); Kretzmer, supra note 12 at 26, also notes the conceptual similarity. On the other hand, note that Gardam, supra note 119, who describes the history of the norm of proportionality in considerable detail, makes little mention of any influence of DDE in the emergence of IHL’s rule.
144 In the trolley problem, a runaway trolley travels towards five people on the track in front of it, all of whom will be killed if it strikes them. However, a bystander is able to use a switch that will divert the trolley onto another track where it will only kill one person. A variation on the problem posits that there is no switch, but that the bystander can stop the trolley before it kills the five people on the track by pushing another person (sometimes a “fat person”) into the trolley’s path. See the description (albeit without a discussion of DDE) in Kumm, Mattias, “Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement,” in Pavlakos, George, ed, Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford: Hart, 2007) 131 at 153 Google Scholar. The transplant problem is the “fat person/trolley” problem in a different context: A doctor has five ill patients who will all die unless they receive transplanted organs. The doctor also has a healthier patient whose organs, if harvested, will save the ill patients. See Botros, supra note 140 at 75.
145 See Hörnle, “Hijacked Airplanes” supra note 75 at 592: “I doubt that this doctrine is much more than a sham to hide pockets of consequentialist reasoning in states of emergency or other situations when the consequences of deonto-logical thinking might seem too harsh.”
146 Botros, supra note 140 at 73, 82-83.
147 Boyle, supra note 141 at 538.
148 See Alexy, Robert, A Theory of Constitutional Rights, translated by Julian Rivers (Oxford: Oxford University Press, 2002)Google Scholar. See also Möller, Kai, “The Right to Life between Absolute and Proportional Protection” (2010) LSE Law Society and Economy Working Papers 13/2010 at 2, online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620377>.Google Scholar
149 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1. For an elaboration of the analytical framework, see R v Oakes, [1986] 1 SCR 103 at paras 69-70, 26 DLR (4th) 200; Dagenais, supra note 112 at paras 92-96.
150 Alexy, supra note 148 at 57-66. For useful paraphrasing and summaries of the basic building blocks of the theory, see Scheinin, Martin, “Terrorism and the Pull of ‘Balancing’ in the Name of Security,” in Scheinin, et al, supra note 39, 55 at 58 Google Scholar; Kumm, supra note 144 at 136–37.
151 Kumm, supra note 144 at 137.
152 This description is drawn from the work of Scheinin in summarizing and paraphrasing Alexy. See Scheinin, supra note 150.
153 See generally Alexy, supra note 148 at 57–66. See also Möller, supra note 148 at 3; Möller, supra note 7 at 458; Kumm, supra note 144 at 137. McCrudden provides another useful description of the common elements among similar proportionality analyses. McCrudden, Christopher, “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19:4 EJIL 655 at 715.CrossRefGoogle Scholar
154 See Alexy, supra note 148 at 102; Alexy, Robert, “Thirteen Replies,” in Pavlakos, , supra note 144, 333 at 344.Google Scholar
155 Both Möller and Kumm imply that Alexy’s theory might be applicable in the IHRL context (at least within the ECHR, which, in the case of many rights, provides a clearer textual basis for “balancing” than does the ICCPR’s language of “arbitrary”). Such an approach also seems to be common in balancing competing rights (at least those that are susceptible to limitations or derogations) within the ICCPR. See Siracusa Principles, supra note 33. Scheinin, supra note 150 at 63 , argues that because it lacks a strong central structure for review of state decisions and actions in balancing human rights principles, “international human rights law [in contrast to ‘stable’ constitutional systems] still needs to emphasize the existence of absolute rules that are not subject to ‘balancing’ against competing interests” in order to maximize the protection of individual rights on a practical level. Scheinin’s approach, however, does not provide any alternative mechanisms to account for the irreconcilable conflicts of duties and rights claims that are inherent in situations such as the rogue civil airliner problem.
156 Bohlander, supra note 75 at 583.
157 The group of experts that drafted the Harvard Manual, supra note 6, could not agree on whether to account for such damage in applying the IHL rule of proportionality to the shooting down of an aircraft. The majority rejected such an accounting as impractical, but they conceded that some exceptional circumstances might warrant considering the potential for collateral damage on the surface, such as where the state has air supremacy and can choose the time and place of an attack on an airborne aircraft. See Section G(III), commentary to chapeau at para 4, commentary to rule 68 (d) at para 3.
158 For another description of the situation, see Kumm, supra note 144 at 156, n 58. See also Hörnle, “Shooting Down a Hijacked Plane,” supra note 75 at 121–22, for a brief discussion of different approaches to valuing the lives of those aboard the aircraft and their apparent relationship to different legal traditions.
159 An example from an entirely different context may clarify this point. In an article that analyzes empirical evidence suggesting that eighteen lives were saved for every state execution of a convicted murderer, Sunstein and Vermeule suggested that this ratio (where eighteen lives could be saved by ending one) might represent a threshold at which execution might be not merely morally justified but morally required. Sunstein and Vermeule, supra note 138 at 719, 727. See also Blum, supra note 117 at 60-62.
160 These sort of exercises do, in fact, appear to take place on a regular basis. See, eg, Mellow, supra note 4, and Elliott, Dan, “Russia, U.S. Chase Jet in Hijack Drill,” Associated Press (9 August 2010)Google Scholar, online: MSNBC <http://www.msnbc.msn.com/id/38628835/ns/world_news-europe/t/russia-us-chase-jet-hijack-drill/>.
161 Cohen, supra note 69 at 32.
162 Ibid at 30-31.
163 See Milanovic, supra note 85, particularly at 477-81; de Felipe, Miguel Beltran and de Santiago, Jose Maria Rodriguez, “Shooting Down Hijacked Airplanes? Sorry We’re Humanists: A Comment on the German Constitutional Court Decision of 2.15.2006, Regarding the Luftsicherheitsgesetz (2005 Air Security Act)” (2007) Berkeley Electronic Press 1983 at 21–25 Google Scholar, online: Berkeley Electronic Press <http://law.bepress.com/expresso/eps/1983>. See also McCrudden, supra note 153 at 715.
164 Eg, Baker v Carr, 369 US 186 at 210-11 (1962). Where a determination of constitutionally protected human rights is at stake, see, cf, Operation Dismantle v The Queen, [1985] 1 SCR 441 at paras 51-68 (Wilson J.) and para 38 (Dickson J.), 18 DLR (4th) 481.
165 See, eg, Trail Smelter Case (United States v Canada) (1938 and 1941), III UNRIAA 1905.
166 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, contained in Report of the International Law Commission, Fifty-Third Session, UN ILC, 56th Sess, Supp No 10, UN Doc A/56/10 (2001), ch IV.E.1, arts 1-3 [Draft Articles on Responsibility]. The issue that seems more likely to arise as a result of a rogue civil airliner problem is not whether there is state responsibility for a breach of an international obligation undertaken pursuant to the ICCPR but, rather, whether another state would raise the issue in an international dispute resolution forum.
167 See, eg, the discussion of such possibilities in Huskisson, Darren C, “The Air Bridge Denial Program and the Shootdown of Civil Aircraft under International Law” (2005) 56 AFL Rev 109 at 152–54Google Scholar (dealing with distress), 154-63 (dealing with necessity).
168 Draft Articles on Responsibility, supra note 166, art 24.
169 Ibid, commentary to art 24 at paras 2, 5.
170 Ibid at para 7.
171 Ibid, commentary to art 25 at para 2.
172 Ibid, art 25(1)(a).
173 Ibid, art 26.
174 See Ramcharan, supra note 25 at 14-15, making the argument that the right to life, “subject to certain controlled exceptions” (which presumably fall within the scope of “non-arbitrary”), is part of jus cogens. See also General Comment no. 29: States of Emergency (Article 4), UN Human Rights Committee, 72 nd Sess, UN Doc CCPR/C/ 21/Rev. 1/Add. 11 (2001) at para 11. While the negative duty might be sufficiently well defined to allow for legal debate as to whether it has been breached and whether it is of peremptory character, the extent of the state’s positive duties is considerably less certain. Thus, it seems premature at least to claim that there is any clearly defined right to life in jus cogens. It seems that the most that might be said is that some of the specific use of force obligations that define the negative aspect of the right form part of customary international law.
175 Draft Articles on Responsibility, supra note 166, art 24(2)(b).
176 Ibid, commentary to art 24 at para 10.
177 Ibid, art 25(1)(b).
178 Ibid, commentary to art 25 at para 17.
179 See Victor V Ramraj, “Between Idealism and Pragmatism: Legal and Political Constraints on State Power in Times of Crisis,” in Goold and Lazarus, supra note 46, 185 at 189. The idea is one introduced by David Dyzenhaus.
180 See Schabas, supra note 85.
181 See Fuller, Lon L, “Human Interaction and the Law” (1969) 14 Am J Juris 1 at 27.CrossRefGoogle Scholar
182 Milanović, supra note 85 at 479. See also Bielefeldt, Heiner, “Philosophical and Historical Foundations of Human Rights,” in Krause, Caterina and Scheinin, Martin, eds, International Protection of Human Rights: A Textbook (Turku/Abo: Abo Akademe University Institute for Human Rights, 2009) 3 at 8–9 Google Scholar. Kretzmer, supra note 12 at 27, also rejects, in very strong terms, an IHL-like proportionality of effects rule in IHRL: “[A] rule, which makes it lawful in advance to use force with the full knowledge that innocent persons will be killed or injured if their death or injury is not excessive in relation to the anticipated advantage of using that force” [emphasis in original].