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Law Enforcement, the Rogue Civil Airliner and Proportionality of Effects: An Analysis of International Human Rights Law A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of LL.M. Robin F. Holman Institute of Air and Space Law McGill University Faculty of Law Montreal, Quebec August 2010 © Robin F. Holman, 2010 Table of Contents Abstract v Acknowledgements vi Prologue 1 I. Introduction 5 A. The Emergence of the Rogue Civil Aircraft Threat 5 B. Legal Responses to the Rogue Civil Aircraft Threat 8 C. Defining the Rogue Civil Airliner Problem 10 D. Outline of Argument 12 E. A Factual Model 15 II. The Rogue Civil Airliner and International Human Rights Law 21 Governing State Use of Force in the Law Enforcement Context A. International Human Rights Law, Human Dignity and the 21 Right to Life i. Introduction to International Human Rights Law 21 ii. Human Dignity 24 iii. The Right to Life 26 B. Constitutional Human Rights Jurisprudence Addressing the 30 Rogue Civil Airliner Problem i. Proportionality Theory of Constitutional Human Rights 31 ii. The German Aviation Security Act Case 33 iii. The Polish Aviation Act Case 41 iv. A Critique of the Jurisprudence 43 a. Intended v. Foreseeable Consequences 44 i b. Ends v. ―Mere Means‖ 47 c. State Acts v. State Omissions 48 d. Irreconcilable Duties Derived From Irreconcilable Claims 50 e. Summary 53 C. IHRL Norms Governing State Uses of Force and the Rogue 55 Civil Airliner Problem in the Law Enforcement Context i. Ensuring State Deprivations of Life are Not Arbitrary 56 a. Authorized by Law 58 b. Triggered by Positive Duties to Protect 58 c. Distinction 60 d. Necessity 61 e. Precaution 61 f. Proportionality (of Force) 62 g. Effective Investigation 63 h. Human Dignity? 64 ii. Collateral Damage and IHRL 65 a. The Prevailing View: A Categorical ―No‖ 66 b. The European Court of Human Rights‘ Approach: A 69 Conditional ―Yes‖ c. Implications of the European Court‘s Approach 74 III. Proportionality of Effects and the Rogue Civil Airliner in the 77 Context of Armed Conflict A. International Humanitarian Law’s Analytical Framework 77 i. Distinction 78 ii. Military Objectives 79 ii iii. Precaution 80 iv. Proportionality of Military Advantage to Collateral Damage 80 B. Proportionality of Effects in IHL 81 C. The Rogue Civil Airliner Problem in the Context of Armed 85 Conflict i. Sufficiently Important (Military) Objective 88 ii. Necessity 89 iii. Precaution 89 iv. Proportionality of Effects 90 v. Implications of the Harvard Manual‘s Approach 91 IV. Proportionality of Effects and the Rogue Civil Airliner in the 93 Law Enforcement Context A. Review of Argument 93 B. Comparison of Proportionality of Effects in Other Normative 96 Frameworks i. International Humanitarian Law 96 ii. Moral Philosophy 99 iii. Constitutional Human Rights 103 C. An IHRL Norm of Proportionality of Effects 104 i. The ―Threshold‖ – Triggering the Application of the Norm 105 ii. A Proposed Formulation of the Norm 107 iii. The Proposed Norm in Context 109 iv. Practical Application of the Norm 111 D. Possible Alternative Approaches 113 iii i. Political Question 114 ii. Circumstances Precluding International Responsibility 115 E. Conclusion 120 Bibliography 123 iv Abstract Existing theoretical approaches to international human rights law governing the State‘s duty to respect and ensure the right to not be arbitrarily deprived of life do not 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 use the aircraft itself as a weapon against persons and property on the surface. A more satisfactory approach is provided by the addition of a norm of proportionality of effects that is analogous to that which has been developed within the framework of international humanitarian law 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 and all of the courses of action available will result in innocent persons being deprived of life. Existants approches théoriques au droit international des droits humains régissant l'obligation de l'État de respecter et de garantir le droit de ne pas être privé arbitrairement de la vie ne fournissent pas un cadre analytique satisfaisant dans lequel de considérer le problème d'un aéronef civil à passagers renégat – un aéronef civil portant des passagers et sous le contrôle effectif d'un ou plusieurs individus ayant l'intention utiliser l'aéronef- même comme une arme contre des personnes et des biens à la surface. Une approche plus satisfaisante est fournie par l'ajout d'une norme de proportionnalité des effets qui est analogue à celle qui a été développé dans le cadre du droit international humanitaire et le droit moderne des droits constitutionnels. Cette norme supplémentaire s'applique que lorsqu'il y a un conflit insoluble entre les devoirs de l'État en respect du droit à la vie et tous les cours d'action disponibles se traduira par des personnes innocentes étant privé de leur vie. v Acknowledgements The completion of this thesis has required the support and assistance of a number of people. I owe them all my profound thanks. My colleagues, friends and supervisors in the Canadian Forces‘ Office of the Judge Advocate General encouraged me to undertake my LL.M. studies, supported me during those studies and provided me with invaluable feedback on my evolving ideas along with considerable administrative support. I am also grateful to my thesis supervisor, Professor René Provost, who made time to meet with and mentor me despite the challenges of our physical separation for much of the period during which this thesis was researched and written and to my external examiner, Professor Dominic McGoldrick for his helpful and encouraging comments. I would like to acknowledge the support of my family: my wife, Jenny and my daughter, Alexandra, without whose patience and support it is difficult to imagine that I could have completed this project; and our newest addition, Charlie, whose arrival on his due date helped me to stick to my timeline for completion. While my studies have been sponsored by the Canadian Forces, the views reflected in this thesis are mine alone; they do not necessarily reflect, nor should they be taken to reflect, the views of the Government of Canada, the Department of National Defence, the Canadian Forces or the Office of the Judge Advocate General. vi Prologue On a chilly late fall afternoon, Air Canada Flight 872 (AC 872) pushes back from gate 177 at Toronto’s Pearson International Airport bound for Frankfurt, Germany. The aircraft, a Boeing 777-300ER bearing Canadian registration C-FITU, carries 311 passengers along with a crew consisting of 2 pilots and 19 flight attendants. Fully loaded with 22,000 kg of cargo and 181,000 L of fuel, the aircraft weighs just under its maximum take-off weight of 351,500 kg.1 The crew-members are all Canadian citizens. The passengers are a more diverse group; citizens of 16 states, of whom roughly one third are Canadian and half are German. As the first officer focuses on taxiing the aircraft to runway 23, he is knocked unconscious, struck by a blow to the back of the head from the aircraft’s captain. Taking sole control of the aircraft, the captain uses his “smart-phone” to e-mail a pre-written document to a short list of addressees. He lists a series of personal grievances with his employer, various co-workers and members of his family. He concludes with an unequivocal statement of his intention to crash his aircraft into the workplace of his estranged wife – the Pickering Nuclear Generating Station, lying on the shore of Lake Ontario on the eastern edge of the Greater Toronto Area. The captain makes a normal take-off, flying initially to the west before receiving radar vectors to the south and then to the east, flying over Lake Ontario. Upon acknowledging a clearance to “climb on course” for Frankfurt and to contact an en route air traffic controller on a new frequency, the captain disables the aircraft’s radar transponder, a device that responds to “interrogations” from ground-based radar installations by transmitting a return signal that identifies the aircraft and provides information about its altitude, speed and heading. The aircraft is now identifiable only by the “blip” of a primary radar return. The captain does not initiate a climb but, rather, holds the aircraft level at 10,000 feet above sea level (approximately 9,500 above the water) and continues to fly eastward toward the centre of the lake. Noticing the loss of secondary radar 1 For data regarding the aircraft as operated by Air Canada, see http://www.aircanada.com/en/about/fleet/77W.html. 1 contact with the aircraft, the en-route controller attempts to contact the aircraft. There is no reply. Beyond the locked, armoured door to the 777’s cockpit, AC 872’s passengers and remaining crew have no hint that anything is amiss. Almost simultaneous to the loss of radar contact, several recipients of the captain’s e- mail contact law enforcement agencies, reporting its content and expressing concern that the captain’s threat is credible. Further attempts by air traffic control agencies and by Air Canada to contact flight 872 at the request of law enforcement authorities are unsuccessful. In short order, the authorities conclude that the threat posed by the aircraft cannot be effectively dealt with except with the assistance of the Canadian Forces.

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