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
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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.
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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.
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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.
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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. A request is made and two Canadian Forces CF-18 fighters en-route from CFB Trenton to their home base near Chicoutimi, Quebec, are vectored toward the aircraft’s last confirmed location. By the time they intercept AC 872 several minutes later, it has reversed course and is heading toward the Pickering station, whose facilities include eight CANDU heavy-water nuclear reactors, and a nuclear waste storage facility.2 Accelerating in a gentle descent, the 777 will cover the 100 km to the facility in less than ten minutes.
While the CF-18 pilots join in the ongoing attempts to contact the aircraft by radio, broadcasting warnings and directing the pilot to alter course and climb, they also use several other visual methods to attract the pilot’s attention and direct him to follow them – “wing waggles,”3 ejecting flares, flying close alongside the aircraft in attempts to alter its course, and even attempting to divert it from its track using a “head-butt,” an aggressive manoeuvre close across the nose of the airliner. All attempts fail, with AC 872 consistently following any evasive manoeuvre by returning to a track aimed at the Pickering station while continuing to descend and increase its speed.
2 For information on the Pickering Nuclear Generating Station, see:
3 Canadian Interception Orders can be found in Transport Canada, Aeronautical Information Manual, Doc. No. TC 14371 at SAR 4.7, online: Transport Canada
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Experts on the ground conclude that, given its mass and velocity, a direct impact of the aircraft against one of the steel-reinforced concrete reactor containment structures has a high probability of causing a catastrophic failure of the reactor vessel inside and the release of intense, uncontrollable heat and highly radioactive fission products into the atmosphere.4 The combination of the aircraft’s kinetic energy, the explosion of its fuel and the release of heat and radiation from the reactors will cause the immediate deaths of all of the people on the aircraft and will likely also kill most of the 1000 people estimated to be on the site. The longer-term impact of a collision is expected to include deaths and radiation sickness among the approximately 100,000 people who reside within five km of the facility. Additional impacts upon the millions of people living within 100 km of the facility will depend on unknowable factors such as the weather and winds following the collision and the effectiveness of initial responses to it.5
4 To the extent that it is discussed in public fora, there is some dispute as to the risk posed by deliberate crashes of large aircraft into nuclear power generating facilities. Thus, although the United States Nuclear Regulatory Commission has, since 2009, required that new nuclear facilities be designed to provide protection against such acts, its design basis threat, which describes threats against which nuclear facilities are required to protect against, continues to not include the threat of a deliberate aircraft crash. Moreover, the Commission has not required the retrofitting of additional design protections to existing nuclear facilities. See Mark Holt & Anthony Andrews, ―Nuclear Power Plant Security and Vulnerabilities‖ Congressional Research Service Doc. No. RL34331 (18 March 2009), online: Federation of American Scientists
5 The figures cited are purely speculative. A study of the potential health impacts of a reactor core meltdown and release of radiation products at the Indian Point Nuclear Power Plant, which is situated 60 km upwind of mid-town Manhattan suggests that as many as 44,000 near-term and 518,000 longer term
3
The aircraft is now less than two minutes from possible impact, still over Lake Ontario, continuing to descend and stabilized at a speed of 600 km/h. The Prime Minister has been briefed and is monitoring events. He needs to make a decision and give an order: shoot down the aircraft or not. He takes a deep breath and reaches for the telephone …
deaths could result along with severe economic effects caused by, inter alia, the displacement of homes, offices and industry that would be required. See Lyman, ibid.
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I. Introduction
A. The Emergence of the Rogue Civil Aircraft Threat
The terrorist attacks of 11 September 2001 (―9/11‖), which involved the terrorist hijacking of four American-registered civilian airliners and their subsequent use as weapons targeting the World Trade Center, the Pentagon and an unknown additional target in the vicinity of Washington D.C., changed the world forever. While much attention has been paid to the attacks as the triggering event in what remains, nine years later, an ongoing trans-national armed conflict between a coalition of predominantly Western States and a number of radical Islamist, anti-Western terrorist and insurgent organizations, this first use of civil aircraft as weapons of large-scale destruction has had a paradigm-shifting effect in the approach taken by States to aviation security, to national defence and to law enforcement.
The threat that aircraft of all types pose to both lives and property on the earth‘s surface has long been recognized. The possibility of accidental death and damage caused by aircraft has been mitigated by extensive international and domestic regulation aimed at ensuring the safety of aviation6 and many States have developed military air defence capabilities for the purpose of preventing (or at least limiting) the intentional infliction by aircraft of other States of death and destruction within their territories and territorial waters.7 States have also joined together to develop and implement a separate series of
6 See, for instance, Convention on International Civil Aviation, 7 December 1944, 15 U.N.T.S. 295, Can. T.S. 1944 No. 36 (entered into force 4 April 1947) (the ―Chicago Convention‖) and its associated annexes setting out standards and accepted practices for civil aviation among its 190 Contracting States. For a detailed examination of the role of the International Civil Aviation Organization (ICAO) – the specialized UN Agency that was originally constituted by the Chicago Convention – in the maintenance of aviation safety and security, see Huang Jiefeng, Aviation Safety Through the Rule of Law: ICAO’s Mechanisms and Practices (New York: Kluwer Law International, 2009).
7 Canada and the United States, for example, originally created a bi-national air defence command in 1958. The agreement establishing what is now known as the North American Aerospace Defence Command (NORAD), has been renewed on a regular basis, most recently in 2006. Agreement Between the Government of Canada and the Government of the United States of America on the North American Aerospace Defence Command, online: Department of Foreign Affairs and International Trade Canada Treaty Information
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international instruments that seek to deter (through State assertion of criminal law jurisdiction) unlawful interference with civil aviation – most significantly the hijacking of civil aircraft and the holding of their passengers as hostages8 and, more recently, the in- flight destruction of airliners by the detonation of explosive devices placed on board9 or by surface-to-air missile.10
In retrospect, all of the individual elements that characterized the 9/11 attacks had some historical precedent. Hijackings of civil aircraft were a recognized threat. Suicidal acts by pilots of civil aircraft (which were also homicidal acts against any other persons on board those aircraft) had occurred.11 The use of aircraft themselves as implements of direct destruction – as opposed to weapons delivery systems – had occurred in the kamikaze attacks undertaken by Japanese military pilots against American military targets in the final year of the Second World War.12 It was the combination of these elements, the hijacking of a civil aircraft and its passengers, the suicide/homicide of those on the aircraft, and the deliberate targeting by the aircraft of a physical objective on the surface
8 See, for example, Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 178 (entered into force 26 January 1973) (the ―Montreal Convention, 1971‖), and Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971) (the ―Hague Convention, 1970‖). For a description of these and related instruments, with a focus on the United States, see Paul Stephen Dempsey, ―Aviation Security: The Role of Law in the War Against Terrorism‖ (2003) 41 Colum. J. Transnat‘l L. 649.
9 See Montreal Convention, ibid., art. 1(1)(c) and Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1 March 1991, 30 I.L.M. 726 (entered into force 21 June 1998). The destruction of Air India Flight 182 off the coast of Ireland on 23 June 1985 and Pan American Airlines Flight 103 above Lockerbie, Scotland on 21 December 1988 were both brought about by the placement and detonation of explosive devices aboard Boeing 747 aircraft.
10 For a list of attacks against civil aircraft using portable surface-to-air missile systems, see STRATFOR Global Intelligence, ―Man-Portable Air Defense Systems: A Persistent and Potent Threat‖ (1 February 2010) at 6, online:
11 On 19 December 1997, the captain of Silk Air Flight 185, a Boeing 737-300 apparently deliberately dove his aircraft into Indonesia‘s Musi River Delta killing all 104 people aboard. See Macarthur Job, ―Final Flight: Silk Air 185‖ Flight Safety Australia (January-February 2008), online:
12 See, for instance, Eric Bergerud, Fire in the Sky (New York: Harper Collins, 1999).
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of the earth, that made the 9/11 attacks unique. The threat posed by what I will call ―rogue‖ civil aircraft – civil aircraft13 that are under the effective control of one or more individuals who intend use the aircraft itself as a weapon against persons and/or property on the surface – apparently went unrecognized until that day.14
While military aircraft had occasionally been called upon to intercept civil aircraft that failed to respond to air traffic control (ATC) instructions during domestic flights,15 the focus of most air defence forces prior to 9/11 was upon responding to external threats – those coming from outside the State‘s sovereign airspace.16 Similarly, the consideration given by the international community to the use of weapons by air defence forces against civil aircraft was focused upon responses of those forces to unauthorized incursions by international airline flights.17
The confusion resulting from difficulties in obtaining and communicating situational awareness among the various civilian and military agencies during the events of 9/11 was
13 The Chicago Convention, supra note 6, art. 3, implicitly defines civil aircraft as those that are not State aircratft (examples of which include ―aircraft used in military, customs and police services.‖)
14 This lack of recognition is certainly true of the United States and Canada. See U.S.. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (New York: W.W. Norton & Company, n.d.). (the ―9/11 Commission Report‖) at 17 and 45. The possibility was recognized by several authors of popular fiction, among them Tom Clancy, who in his bestseller Debt of Honour (New York: G.P. Putnam‘s Sons, 1994) depicts a suicide attack by the pilot of an empty Japanese commercial airliner into the United States Capitol Building during a joint session of Congress.
15 For example, on 25 October 1999, all passengers and crew of a Learjet carrying professional golfer Payne Stewart became incapacitated by hypoxia, leaving the aircraft flying on auto-pilot. The aircraft was intercepted by United States Air Force (USAF) fighter aircraft which were given authority to shoot down the aircraft if required to prevent it from crashing in a populated area. See 9/11 Commission Report, ibid., at 17, note 98 and Darren C. Huskisson, "The Air Bridge Denial Program and the Shootdown of Civil Aircraft Under International Law" (2005) 56 A.F.L. Rev. 109 at 142 and 152.
16 One notable exception was in the context of counter-narcotic operations conducted by the air forces of a number of South American States with the support of the United States. See Huskisson, ibid.
17 In response to the shooting down, on 1 September 1983, of Korean Airlines Flight 007 by Soviet Air Force interceptors following an apparently inadvertent incursion into Soviet airspace, the Chicago Convention, supra note 6, was amended by the adoption of art. 3bis which prohibits the use by States of weapons civil aircraft in flight. For a discussion on the scope of application of art. 3bis see infra, note 37. For a discussion of other incidents involving the shooting down of foreign civil aircraft by air defence forces, see Huskisson, supra note 15 at 127-134 and Brian E. Foont, "Shooting Down Civilian Aircraft: Is There an International Law?" (2007) 72:4 J. Air L. & Com. 695.
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such that the North American Aerospace Defence Command (NORAD) – the bi-national command tasked, inter alia, with the air defence of Canada and the United States – was unable to intercept any of the hijacked aircraft. It is clear, however, that once some of the initial confusion had lifted, the President of the United States authorized United States Air Force aircraft to shoot down any additional civilian airliners that constituted a threat to people and property on the surface and failed to respond to warnings.18 Once all civil aircraft were on the ground and no immediate threats remained, NORAD continued to carry out combat air patrols over major cities and other ―critical infrastructure‖ installations.
B. Legal Responses to the Rogue Civil Aircraft Threat
The 9/11 attacks have given rise to a plurality of responses aimed at preventing a repeat of similar attacks. Indeed, the reactions of States to the threat posed by rogue civil aircraft have been as varied as the legal traditions and political histories of those States. Collectively, the members of the International Civil Aviation Organization (ICAO) have implemented stricter security standards for international flights and have agreed to extend measures relating to the unlawful interference with international civil aviation to domestic civil aviation operations ―to the extent practicable.‖19 Aviation security has taken on a multi-faceted, layered, ―defence-in-depth‖ approach with domestic security standards that include such elements as ―no fly‖ lists, more stringent physical security screening, the installation of armoured cockpit doors and the placement of armed, undercover ―air marshals‖ on some commercial flights.20 An ICAO sub-committee has also drafted treaty amendments that will require ratifying States Parties to criminalize the use of ―an aircraft in service in a manner that causes or is likely to cause death, serious
18 9/11 Commission Report, supra note 11 at 37 and 40-41.
19 See, generally, ICAO, Security: Safeguarding International Civil Aviation Against Acts of Unlawful Interference, Annex 17 to the Convention on International Civil Aviation 8th ed., (entered into force 1 July 2009) and, in particular para. 2.2.2.
20 See, for instance, U.S.. National Strategy for Aviation Security (2007) online: Department of Homeland Security
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bodily injury, or serious damage to property or the environment.‖21 Still, while the likelihood of a rogue civil aircraft incident and the risks posed by one can be mitigated through both active security and (perhaps) through the deterrent effect of after-the-fact criminal measures, these responses, which are consistent with a paradigmatic ―law enforcement‖ approach, are not capable of eliminating the risks entirely.22 Thus, as a last resort, to prevent attacks by rogue civil aircraft against targets on the surface, a number of States have implemented, either through legislation or under the authority of executive prerogative, procedures under which officials may, under particular circumstances (not all of which have been made public) authorize military personnel to shoot down rogue civil aircraft under particular circumstances.23
21 This language is from a proposed amendment to the Montreal Convention, 1971, supra note 8 as amended by the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 24 February 1988, 27 I.L.M. 627. See ICAO, Report of Special Sub- Committee on the Preparation of One or More Instruments Addressing New and Emerging Threats, Second Meeting (19-21 February 2008) ICAO Doc. LC/SC-NET-2 at A4-1. This and other proposed amendments to the aviation security treaties will be addressed at a forthcoming Diplomatic Conference on Aviation Security, to be held 30 August-10 September 2010 in Beijing, China.
22 For a recent attack by a rogue general aviation aircraft, see Michael Brick, ―Man Crashes Plane Into Texas I.R.S. Office‖ The New York Times (18 February 2010), online: The New York Times
23 For descriptions of some of the domestic statutory provisions enacted to address rogue civil aircraft incidents, see Norberto Luongo,“Shooting-Down” Laws: A Quest for Their Validity (LL.M. Thesis, McGill University Institute of Air and Space Law, 2008). For some information on States asserting executive prerogative as a (domestic) legal basis to shoot down rogue civil aircraft, see Michael Bohlander, "In Extremis - Hijacked Airplanes, 'Collateral Damage' and the Limits of Criminal Law" [2006] Crim. L. Rev. 579 at 589-590. The laws of at least two states – Germany and Poland – have been struck down as being inconsistent with protections of human rights guaranteed by their respective constitutions. See infra, section II(B). In North America, Canadian and American fighter aircraft controlled by NORAD are permanently on alert to intercept and, under particular (and classified) circumstances, shoot down rogue civil aircraft. See Craig Mellow, ―Don‘t Cross That Line‖ Air and Space Magazine (1 March 2010), online: Flight Today
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C. Defining the Rogue Civil Airliner Problem
This thesis studies State obligations under international human rights law (IHRL) to respect and ensure the rights of persons subject to its jurisdiction to not be arbitrarily deprived of life. It does so in the specific context of possible State responses to a particular combination of circumstances, a subset of the problem posed by rogue civil aircraft, which I will call the ―rogue civil airliner problem‖. These circumstances are:
1. The rogue civil aircraft is airborne; 2. In addition to the person or persons who are effectively in control of it, the rogue civil aircraft also carries ―innocent‖ persons24 – passengers and crew who are not involved in any plan to use the aircraft as a weapon and who are presumed to be unable to influence the conduct of the of the persons effectively in control;25 3. The incident occurs in a purely law enforcement context such that the only relevant international law framework engaged is IHRL. In other words, the aircraft is neither part of an ―armed attack‖ against the State, nor used as a
2010), online: The Globe and Mail
24 I use the term innocent to denote persons who ―have done nothing, and are doing nothing that entails the loss of their rights.‖ See Michael Walzer, Just and Unjust Wars, 4th ed. (New York: Basic Books, 1977) at 146.
25 It is this circumstance – the presence of innocent persons on board – that, for the purposes of my analysis, most defines the rogue civil airliner subset. This distinction is based upon a similar one drawn in the recently-published Harvard University Program on Humanitarian Policy and Conflict Research, Manual on Air and Missile Warfare, with Commentary (version 2.1 March 2010) [the ―Harvard Manual‖] online: HPCR, International Humanitarian Law Research Initiative:
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military weapon during an armed conflict, nor part of an act of ―terrorism.‖26 The incident is, rather, a crime, albeit one of potentially significant proportion; and 4. The State possesses the capability to destroy the rogue civil airliner either immediately or, at least, in a timely manner – before the persons effectively in control are able to successfully perfect their attack.
Taken to its most extreme set of circumstances, where attempts to use less forceful measures to resolve the situation have been exhausted, the rogue civil airliner problem presents the State (and the officials authorized to make and carry out decisions on its behalf) with a dilemma and the following choices to resolve it:
First Course of Action (―CoA 1‖). The State can use deadly force to shoot down the airliner. This course of action will protect the lives of those innocent persons in the target area who would otherwise have been subject to death or injury resulting from a successful rogue civil airliner attack. It will also protect property in the target area from damage or destruction and, depending upon the circumstances, may have additional ―second order‖ protective effects in respect of indirect effects that might follow from a successful attack. In achieving these positive effects, however, the State will cause or contribute to negative effects: the destruction of the airliner and its cargo and, most significantly, the deaths of everyone aboard the aircraft, including its innocent passengers and crew; or
Second Course of Action (―CoA 2). Alternatively, the State can refrain from using deadly force and not shoot down the aircraft. This will ensure that for at least some period of time the airliner and its cargo remain intact and will extend the lives of all of the persons on board. It will have the negative effect of leaving the persons effectively in control of the airliner free to carry out their intended acts, possibly (and in the most extreme circumstances, certainly) resulting in the deaths not only of all those on board the aircraft but also in additional deaths and injury to innocent persons
26 For the purposes of the present discussion, I define an act of terrorism as one committed by a group or individual for a political, religious or ideological purpose, object or cause with the intention of intimidating any segment of the public with regard to its security. See, for instance, Criminal Code, R.S.C. 1985, c. C- 46, s. 83.01.
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on the surface along with destruction and damage to property and other ―second order‖ indirect effects.
The State‘s dilemma has a number of dimensions: moral, political and legal and there is no doubt that each of these elements will play a role in the decision-making process. This thesis will focus upon the legal dimension of the rogue civil airliner problem, considering, in particular, the framework of IHRL that governs the use of deadly force by the State in a purely law enforcement context. These questions tread ―the ground that lies at the border of … law and its underlying philosophical tenets,‖27 perhaps, some might say, going even beyond the border, to a place where the law can no longer play a useful role.
D. Outline of Argument
I argue that existing IHRL theoretical approaches to the right of the person to not be arbitrarily deprived of life fail to provide a satisfactory analytical framework within which to consider the legal aspects of the rogue civil airliner problem – that is, one which is principled, effective and in line with the rule of law and human rights.28 A more satisfactory analytical framework, one that accounts more completely for the moral, political and legal complexities of the problem, can be provided by the addition to the existing framework of an analysis of proportionality of effects that is analogous to those which have been developed within the framework of international humanitarian law (IHL) to minimize inevitable civilian casualties and other collateral damage, within modern constitutional human rights theory to ―balance‖ competing right claims and by some schools of moral philosophy to address dilemmas both within and without the context of armed conflict.
27 Bohlander, supra note 23 at 591.
28 This definition of what constitutes a satisfactory framework for legal analysis is based upon a formulation employed by Professor 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] P.L. 457 at 465. Dr. Melzer uses a similar definition of satisfactory: that the normative standards (analytical framework) 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.‖ Nils Melzer, Targeted Killing in International Law (Oxford: Oxford University Press, 2008) at 82 and 431.
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A proportionality of effects norm requires that the combination of any incidental deaths of innocent persons, injuries to innocent persons or damage to property expected to be caused by a State use of force not be excessive in relation to the concrete and direct advantage anticipated from the use of force. The norm of proportionality of effects supplements, it does not replace, the existing IHRL framework and only under specific circumstances: where all of the courses of action29 available to the State are expected to inevitably cause or contribute to innocent persons being deprived of life – circumstances like those of the rogue civil airliner problem. This additional norm can be accounted for within the existing IHRL framework as an additional element in the series of requirements that determine whether or not a State deprivation of life is arbitrary. I argue that, under the circumstances of the rogue civil airliner problem, incidental deaths of innocent persons that are consistent with the existing requirements and that also display proportionality of effects should not be considered to be arbitrary.
The usefulness of my proposed approach is clear when considered in light of the social reality following the 9/11 attacks – that (at least some) States appear willing, under particular circumstances and as a final resort, to consider shooting down a rogue civil aircraft, even a rogue civil airliner carrying innocent persons. Rather than leaving States with an irreconcilable dilemma, a proportionality of effects analysis provides States with an additional tool of legal analysis in addressing a dilemma that is morally, politically and legally complex.
I conclude the first section of this thesis below, with the elaboration of a factual ―model‖ that will provide further context to my analysis. The intent of the model is to isolate those parts of the rogue civil airliner problem that are of most interest in my argument from those parts that, while still of considerable interest, are beyond its scope.
In Section II, I attempt to demonstrate how existing theoretical approaches to IHRL governing State duties in respect of the right to life prove to be unsatisfactory in addressing the rogue civil airliner problem. Briefly, I claim that they are unsatisfactory
29 The term ―course of action‖ means a sequence of actions and omissions that is deliberately chosen by the State. It should not be understood to imply only the taking of direct action; a particular course of action may include (or consist entirely of) deliberate omissions to act.
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because of their categorical refusal to countenance State acts or omissions that cause or contribute to the deaths of innocent persons. This refusal results in their failure to provide a rational basis for legal analysis of the problem in circumstances where deaths of innocent persons are inevitable. My analysis considers the two commonly-asserted bases for such categorical refusal. The first is human dignity, which I consider in the course of a critique of the only existing human rights jurisprudence addressing the rogue civil airliner problem directly – two constitutional rights cases that are much-discussed but which I argue are ultimately unpersuasive. The second is the nature and substantive content given to the right to life itself, which I consider through an analysis of the framework that has been developed to govern State uses of deadly force in a law enforcement context. I will conclude that, properly applied to both sides of the rogue civil airliner problem (that is, both to those persons on the aircraft and those persons on the surface), existing theoretical approaches to the human dignity and the right to life lead to irreconcilable conflicts in State duties to respect and ensure the right to life that result from the irreconcilable claims to the right on the part of innocent persons on each side of the analytical equation.30
In Section III, I consider a variation of the rogue civil airliner problem that occurs in the context of an armed conflict.31 I consider the relevant similarities and differences between the IHRL and IHL frameworks governing State uses of deadly force and then analyze the legal rules posited by the recently-published Harvard Manual on Air and Missile Warfare32 for dealing with rogue civil airliners during armed conflict. I conclude that the Harvard Manual‘s legal approach bears a strong resemblance to the existing
30 This description of the incoherence encountered by IHRL when faced with the rogue civil airliner problem is attributable to Professor Hörnle: (―Under such conditions, state officials are faced with the dilemma of irreconcilable duties derived from irreconcilable claims.‖) Tatjana Hörnle, ―Shooting Down a Hijacked Plane – The German Discussion and Beyond‖ (2009) 3 Criminal Law and Philosophy 111 at 126.
31 Dr. Melzer, supra note 29 at 80-81, describes, for the purposes of his analysis of targeted killings, mutually exclusive law enforcement and hostilities paradigms. Melzer‘s framework recognizes that part of IHL, particularly that dealing with belligerent occupation and treatment of protected persons, deals with matters of law enforcement and not hostilities. Since those areas of IHL do not arise in the rogue civil airliner problem, I prefer to continue to refer to the law enforcement context, by which I mean that no armed conflict exists and IHL does not apply, and the armed conflict context, during which both IHRL (as lex generalis) and IHL (as lex specialis) apply.
32 Supra note 25.
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IHRL approach to the use of deadly force in a non-armed conflict context. Indeed, I suggest that parts of its approach represent an innovation in international law applicable in armed conflict, albeit an innovation whose application is limited to the specialized case of the rogue civil aircraft. The one significant distinction between the Harvard Manual‘s approach in an armed conflict context and existing IHRL‘s approach in a non-armed conflict context is the former‘s employment of a proportionality of effects analysis.
Finally, in Section IV, I compare the IHRL-based framework governing State uses of deadly force in a law enforcement context and the IHL and IHRL-based norms applicable to the rogue civil aircraft problem in an armed conflict context. I also consider proportionality of effects analyses that are common in moral philosophy and constitutional human rights theory. I conclude that the addition of a proportionality of effects analysis to the existing IHRL framework provides a more satisfactory analytical framework within which to consider the rogue civil airliner problem and describe how and under what circumstances a proportionality of effects analysis can be integrated with the existing IHRL framework assessing whether State uses of force render a deprivation of life ―arbitrary‖. Finally, I briefly consider alternative extra-legal approaches to the problem and conclude that it is preferable to seek a solution to the problem within the framework of law. I do not presume to suggest what would be appropriate legal advice in the circumstances set out in the factual model; I do suggest that without the inclusion of a proportionality of effects analysis there exists no logically coherent basis upon which to provide legal advice.
E. A Factual Model
The context for my analysis will be provided by the factual model set out in the prologue – a scenario that simplifies or eliminates some of the complexities of reality in order to isolate the essential elements of the rogue civil airliner problem. I describe some of its features below.
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First, the model focuses our analysis upon a purely law enforcement factual context and therefore upon IHRL alone as lex generalis, unmodified by any lex specialis.33 It excludes characterization of the rogue civil airliner as part of an ―armed attack‖ – either by a State or by non-State actors such as terrorist or politically-motivated groups.34 Some particular rogue civil airliner incidents might indeed, on their facts, be properly characterized as armed attacks, as part of an armed conflict or as terrorism (or as some combination of all three). But every rogue civil airliner incident, no matter the circumstances, constitutes a crime under State law and is subject to law enforcement efforts governed by human rights law. This ―common denominator‖ is my area of
33 IHRL is considered to be lex generalis – international law of general application, applicable at all times. During situations of armed conflict, however, the content of a State‘s obligations under IHRL is informed by IHL as lex specialis – the more detailed and specialized body of law applicable during armed conflict. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226 at paras. 24-25 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep 136 at paras. 104-106. In the Wall decision, the I.C.J. framed the ―relationship‖ between IHL and IHRL in times of armed conflict through reference to ―three possible situations:‖ ―some rights may be exclusively matters of‖ IHL, ―others may be exclusively matters of‖ IHRL, ―yet others may be matters of both these branches of international law.‖ For an extensive discussion of the role of IHRL during armed conflict, see Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, (2004) 98 A.J.I.L. 1.
34 Article 51 of the Charter of the United Nations, 26 June 1945, 1 UNTS xvi, Can. T.S. 1945 No. 7 (entered into force 24 October 1945) recognizes a state‘s inherent right to individual or collective self defence against an ―armed attack.‖ The terrorist attacks of 9/11 have been characterized by some as ―armed attacks,‖ a characterization that is not without controversy. While the UN Security Council resolutions (UNSCRs) addressing 9/11 were somewhat ambiguous, characterizing the events only as terrorist ―attacks,‖ the resolutions explicitly ―recognized‖ and ―reaffirmed‖ the right to individual and collective self-defence. See UNSCRs 1368 (2001) of 13 September 2001 and 1373 (2001) of 28 September 2001. Moreover, the Security Council did not object upon being notified that the United States and its allies, including Canada, were asserting the right to self-defence in commencing military operations in Afghanistan. For its part, the International Court of Justice, even after the events of 9/11, has appeared to continue to assert that the right of self-defence under article 51 is limited to armed attacks coming from another state. See, for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ibid. at para. 139 but see, cf., the discussion in Tom Ruys & Sten Verhoeven, "Attacks by Private Actors and the Right of Self-Defence" (2005) 10:3 J. Confl. & Sec. L. 289 at 304-305 and Raphael van Steenbergh, ―Self-Defence in Response to Attacks by Non-State Actors in the Light of Recent State Practice: A Step Forward?‖ (2010) 23 Leiden J. Int‘l L.183. More recently, some members of the Court have recognized that the Security Council no longer seems to share its view. See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), [2005] I.C.J. Rep. 1, separate opinion of Judge Kooijmans at para 52, separate opinion of Judge Simma at para. 11. Within the particular context of a rogue civil aircraft, it is notable that a resolution of the ICAO Assembly passed in the aftermath of 9/11 asserted that the attacks constituted ―use of civil aircraft for an armed attack on civilized society.‖ ICAO, Declaration on Misuse of Civil Aircraft as Weapons of Destruction and Other Terrorist Acts Involving Civil Aviation, Assembly Resolution 33-1 in Resolutions Adopted at the 33rd Session of the Assembly, Provisional Edition, online: ICAO
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interest. Therefore, my model excludes, at least in a strict, positivistic sense, the application of IHL with its more permissive approach to the use of force by the State. It is also intended to preclude a potentially distracting discussion of State responses to ―terrorism,‖ a loaded, emotive and difficult-to-define term,35 the discussion of which comes with ―a strong undercurrent of governments wishing to take back some of their earlier and presumably permanent and unconditioned commitments in the field of human rights‖ and ―calls for ‗striking a new balance‘, for instance between security and human rights.‖36 For the purposes of this study, I conceive of matters of public security and public safety as matters related to the protection of individual human rights, including the right to life, albeit on a macroscopic level. As a ―common denominator,‖ the law enforcement-centered analysis that this thesis undertakes into IHRL as lex generalis has relevance to any manifestation of the rogue civil airliner problem in any context.
Second, by positing a scenario that arises within the airspace of the rogue aircraft‘s State of registry, my model seeks to exclude public international air law from our analysis. One of the issues surrounding the rogue civil airliner problem is the scope of applicability of article 3bis of the Chicago Convention, which provides, in part, that “every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.” The model accepts the view that the article does not preclude the use of weapons by a State within its own sovereign airspace against a civil aircraft on its registry.37
35 Craig Forcese, ―De-Militarizing Counter-Terrorism: Anti-Terrorism, Human Rights and the Use of Force‖ in Nicole LaViolette & Craig Forcese, eds.. The Human Rights of Anti-Terrorism (Toronto: Irwin Law, 2008) 165 at 168-170.
36 Martin Scheinin, ―Terrorism and the Pull of ‗Balancing‘ in the Name of Security‖ in Martin Scheinin et al.. Law and Security – Facing the Dilemmas (Florence: European University Institute Department of Law Working Paper 2009/11), online: Social Sciences Research Network:
37 Art. 3bis entered into force on 1 October 1998. To date, approximately ¼ of the States Party to the Chicago Convention, including the United States, have not ratified it. Although the issue remains controversial, there is considerable support for the position asserted by Professor Michael Milde, who was the Director of the ICAO Legal Bureau at the time of that article‘s adoption, to the effect that notwithstanding its broad language, article 3bis was intended to limit States‘ use of weapons only in respect of aircraft registered in other States. See Michael Milde, ―Interception of Civil Aircraft vs. Misuse of Civil
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Third, the model ensures that all of the individual rights-holders involved in the problem are, for the purposes of determining that State‘s obligations and responsibilities under IHRL instruments, all within the territory and jurisdiction of the State responding to the rogue civil airliner thus avoiding any debate over the extraterritorial application of those instruments.38
Fourth, by providing sufficient factual information, the model insulates our analysis from some degree of ―prognostic difficulty‖ – the question of how the State authorities ―will be able to know with sufficient certainty the factual foundation‖ for any decision-making exercise.39 Such difficulties are unavoidable in practice and must be accounted for in any practical analysis of any particular rogue civil airliner incident. However, I simplify my task of analyzing IHRL‘s impact upon the decision-making process by limiting the number of factual variables that might otherwise cause distraction or confusion. Thus, the model provides a high degree of certainty as to the malevolent intent of the person in effective control of the aircraft and the numbers of innocent persons implicated on both sides of the problem. The immediate availability of fighter aircraft capable of shooting
Aviation‖ (1986) 11 Ann. Air & Sp. L. 105 at 126. For a detailed discussion of the provision along with an argument that arrives, for different reasons, at the same conclusion in light of events since the adoption of art. 3bis,such as 9/11 see 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, particularly at 250-251.
38 While a State‘s obligations under a particular IHRL instrument are obligations that it owes to all of the other States Parties, the scope of those obligations, consistent with the principles of State sovereignty, sovereign equality among States and the obligation of States to refrain from intervening in the internal affairs of other States, is limited to protecting and ensuring the rights only of those individuals who are within the State‘s jurisdictional ―space‖ as set out in each particular instrument. For instance, art 2(1) of the International Covenant on Civil and Political Rights (ICCPR), infra note 49 provides that ―Each State Party … undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized‖ in the Covenant. Jurisdiction is primarily territorial (see, for instance, Bankovic & Others v. Belgium & Others, [2001] ECHR 890 (GC) at paras. 59-61, 71, 73 and Al-Skeini & Others v. Secretary of State for Defence, [2007] UKHL 26 but see, cf. UN Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) at para. 10) and includes the airspace above a State‘s territory (see Chicago Convention, supra note 6, art. 1). Jurisdiction over a civil aircraft may also be exercised by the State of registry (indeed, art. 17 of the Chicago Convention imbues a civil aircraft with the nationality of its state of registry). Finally, it is worth noting that the various aviation security conventions provide jurisdiction over the crimes they define to, inter alia, the territorial state where the aircraft is situated and the state of registry. See Montreal Convention, 1971, art 5 and Hague Convention, 1970, art 4, both supra, note 8.
39 Bohlander, supra note 23 at 583.
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down the airliner and the exhaustion of less forceful means of exercising control over it focus our attention on the essence of the State‘s dilemma and the fact that a choice among courses of action cannot be avoided. The fact that the aircraft‘s track is entirely over water avoids a specific discussion of whether and how to account for possible collateral damage on the surface (which would have to occur in a scenario where the rogue airliner might be shot down over a populated area of land).40 Notwithstanding the remaining uncertainties, I proceed with my analysis on the basis of the most extreme case – that a failure of the State to shoot down the rogue civil airliner will result in its striking its target on the surface, causing significant death and destruction.
Fifth, although the circumstances in the model do not so dictate, the intention is to consider only international law applicable to the State. Although one might productively consider the legal implications (for both the State and for individuals) of the rogue civil airliner problem under a State‘s constitutional and criminal law, this thesis foregoes such a consideration. The analysis postulates that any decisions, acts and omissions made by State authorities are constitutionally authorized and consistent with (i.e. at least excusable or justifiable under) domestic law. It is concerned with whether those decisions, acts and omissions are consistent with the State‘s obligations at international law.41
Finally, I note caveats regarding two factual elements in the model that provide some ―colour‖ to the scenario but bring with them the risk of additional distraction. First, given the focus upon international rather than domestic law, the particular identity of the States in the model is of minimal relevance. That said, the choice of Germany as the State of citizenship of many of the passengers provides a useful link to the forthcoming discussion of the German approach to the rogue civil airliner problem and perhaps
40 The Group of Experts that drafted the Harvard Manual on Air and Missile Warfare, supra note 25, 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, while conceding 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 Harvard Manual, Section G(III), chapeau commentary at para. 4, rule 68(d), commentary at para 3.
41 In any event, a State ―may not invoke the provisions of internatl law as a justification for its failure to perform a treaty.‖ Vienna Convention on the Law of Treaties, 22 May 1969, 1155 U.N.T.S. 331, Can. T.S. 1980 No. 37 (entered into force 27 January 1980), art. 27.
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suggests a practical manifestation of our focus on international law – the possibility that Germany might invoke the international responsibility of a State shooting down a civil airliner containing a large number of its citizens. Second, the choice of a nuclear power facility as the airliner‘s target illustrates the sort of ―critical infrastructure‖ targets that appear to remain at risk of attack42 and raises questions about indirect or ―second order‖ effects of an attack. Despite my raising of the possibility of significant effects upon legal interests other than the right to life, the focus of my analysis will be upon the competing duties of the State in respect of the rights of both the persons on board the aircraft and the persons on the surface to not be arbitrarily deprived of life. This focus represents IHRL‘s limiting case; if IHRL categorically prohibits a State from incidentally causing the deaths of innocent persons in order to prevent the deaths of other innocent persons there is no chance that it will countenance the sacrifice of innocent lives in order to protect any other interest.
42 Early planning for the 9/11 attacks reportedly included consideration of attacks against nuclear power facilities. 9/11 Commission Report, supra note 11 at 154 and 245.
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II. The Rogue Civil Airliner and International Human Rights Law Governing State Use of Force in the Law Enforcement Context
In this section, I consider the rogue civil airliner problem from the perspective of the IHRL framework governing the use of deadly force in a purely law enforcement context. First, I will provide a brief overview of some of the foundational aspects of IHRL that will be of relevance to my analysis of the problem. A brief discussion of the history of IHRL will provide context for my eventual comparison of its evolution and normative structure with that of IHL. Introductory discussions of human dignity (as a foundational idea in human rights law and possibly as a free-standing legally-enforceable norm) and of the right to life (and particularly of State duties in respect of the right) will assist in understanding judicial and scholarly treatment of these concepts in the context of the rogue civil airliner problem. Next, I will critique the human rights approaches to the broader rogue aircraft problem taken by constitutional courts in Germany and Poland. Finally, I will analyze the rogue civil airliner problem from the perspective of the various principles developed within the framework of IHRL that seek to control State uses of deadly force during law enforcement operations.
A. International Human Rights Law, Human Dignity and the Right to Life i. Introduction to International Human Rights Law
The idea of human rights has a long history in the intellectual traditions of a broad range of societies and cultures. A number of States, predominantly Western, have long recognized and protected individual human rights within their national legal orders. Somewhat surprisingly, however, given the modern prominence of human rights discourses, international law dealing with human rights is a product of relatively recent times, first finding common expression in the years immediately following the adoption of the Charter of the United Nations43 and the end of the Second World War.44 The
43 Supra note 34.
44 René Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 201, David Kretzmer, ―Rethinking the Application of IHL in Non-International Armed Conflicts‖ (2009) 42 Isr. L.R. 8 at 9-10.
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extensive and ever-expanding collection of international instruments – binding treaties and non-binding declarations, codes of conduct, guidelines and the like – represents an attempt to create a normative structure that captures values that are shared across societies and cultures. It is important to bear this pluralist, universal ideal of human rights in mind because, although they are ―not a purely Western invention, traceable to the eighteenth-century European Enlightenment,‖45 human rights are, in practice, commonly articulated ―using the languages of European philosophy and Jewish-Christian theology,‖ which ―are, so to speak, the cultural media in which human rights were historically articulated.‖46
The first formal, inter-State accord touching upon the content of human rights was the 1948 Universal Declaration of Human Rights (UDHR).47 Drafted by the United Nations Commission on Human Rights, whose membership represented the diversity of the member States‘ political, social and legal cultures, and adopted as a resolution of the General Assembly, the Declaration is not binding as such but represents, to use the words of its preamble, ―a common standard of achievement for all peoples and all nations.‖48
The adoption of the UDHR was followed by lengthy efforts to translate its sentiments into binding international instruments that would impose specific legal duties upon the States who were party to them. These efforts culminated in 1966 with the adoption of the texts of the International Covenant on Civil and Political Rights (ICCPR),49 and the International Covenant on Social, Economic and Cultural Rights (ICSECR).50 A number
45 Micheline R. Ishay, The History of Human Rights, From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2008) at 16-17.
46 Professor Heiner Bielefeldt, ―Philosophical and Historical Foundations of Human Rights‖ in Caterina Krause & Martin Scheinin, eds., International Protection of Human Rights: A Textbook (Turku/Abo: Abo Akademe University Institute for Human Rights, 2009) 3 at 15, expresses this view in expounding a ―political reading‖ of the history of human rights.
47 Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948).
48 Ishay, supra note 45, provides at 16ff a concise description of the members and debates of the Commission during the drafting of the UDHR.
49 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 (entered into force 23 March 1976).
50 16 December 1966, 999 U.N.T.S. 3 (entered into force 3 January 1976).
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of multilateral but regionally-focused human rights instruments were also negotiated, both in the interim and later, the first being the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),51 which was adopted in 1950.
The bulk of IHRL‘s content is found in conventional international instruments. However, although its particular content is the subject of debate, there also exists customary IHRL, some of the content of which is reflected in non-treaty instruments. Some of these instruments were developed by groups of experts in human rights law and other relevant disciplines, with input from State representatives in order to elaborate (in particular contexts) upon the more general provisions in the UDHR and the binding IHRL instruments. Several of these ―softer‖ instruments have become a settled basis for the practice of States.52
The nature of State duties under IHRL differs from most international treaties, which are generally limited to the direct performance of reciprocal obligations between two or among several States. The obligations set out in IHRL instruments are also undertaken in an agreement among States; the performance of these obligations, however, is internal to each State, taking place in the context of the relationship between the State and the persons who are subject to its jurisdiction. The State‘s obligation to its fellow States Parties is to ―respect and ensure‖ to those persons the rights set out in the instruments.53 The obligation may be broader still: unlike the reciprocal obligations of most treaties, obligations derived from the ―principles and rules concerning the basic rights of the human person‖ have been cited by the International Court of Justice as examples of obligations erga omnes – obligations that a State owes to the international community as a whole.54
51 4 November 1950, 213 U.N.T.S. 222 (entered into force 3 September 1953).
52 See, for example, the norms discussed infra at section II(C)(i).
53 See, for example, ICCPR, supra note 49, art. 2(1) and the ECHR, supra note 51, art. 1.
54 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), [1970] I.C.J. Rep. 3 at paras. 33-34.
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ii. Human Dignity
One of the foundational elements of the philosophical articulations of human rights is the idea of human dignity – a quality that is said to inhere in all human beings by virtue of their unique capacity to reason and to autonomously exercise free will. Relatively prominent in the history of ideas, the concept of human dignity only began to enter into legal discourse in a sustained way during the first half of the 20th century.55 The ―inherent dignity of the human person‖56 became ―a central organizing principle in the idea of universal human rights.‖57 Indeed, at the time of the drafting of the UDHR (and subsequently), the concept of human dignity ―supplied a theoretical basis for the human rights movement in the absence of any other basis for consensus‖58 among the diverse cultures, ideologies and societies that were attempting to arrive at and express a common approach. However, while there may be general agreement as to the existence of human dignity, its substantive content – what constitutes human dignity – seems to be very much in the eye of the beholder:―everyone could agree that human dignity was central, but not why or how.‖59
Professor McCrudden points to a commonly-held minimum core of three elements to the concept of human dignity: that every human being possesses intrinsic worth by virtue of being human; that this intrinsic worth should be recognized and respected by others; and that the recognition of this intrinsic worth requires that the State be seen to exist for the sake of the individual rather than vice versa.60 Beyond this common core, however, there
55 Christopher McCrudden, ―Human Dignity and Judicial Interpretation of Human Rights‖ (2008) 19:4 E.J.I.L. 655 at 664.
56 The preambles to both the ICCPR, supra note 49, and the ICESCR, supra note 50, assert a recognition that human rights ―derive from the inherent dignity of the human person‖.
57 McCrudden, supra note 55 at 675.
58 Ibid. at 677.
59 Ibid. at 678. Consider, for example, Professor Hörnle‘s preferred conception of human dignity as being an interest in not being seriously humiliated or demeaned, which she raises in criticizing the German Federal Constitutional Court‘s Kantian approach to dignity. Hörnle, supra note 30 at 117. See also, infra, sections II(B)(ii) and II(B)(iv)(b).
60 McCrudden, ibid. at 679.
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appears to be little consensus: while there ―appears to be an acceptance of the concept of dignity,‖ there is no common conception of dignity or of the three elements making up the common core.61
One of the more influential conceptions of human dignity in both law and moral philosophy is based upon one of the formulations of German philosopher Immanuel Kant‘s categorical imperative: ―Act that you use humanity, whether in your own person or in the person of another, always at the same time as an end, never merely as a means.‖62 As we will see shortly, one of the legal definitions given to human dignity by the German Federal Constitutional Court reflects the Kantian approach such that human dignity requires that human beings be treated as ―subjects‖ or ends in and of themselves and not as ―objects‖ or ―mere means‖ of achieving some objective.63 As a statement of a legal norm, this Kantian approach to human dignity is one that lacks clear substantive content. Even scholars of moral philosophy disagree as to the full meaning of Kant‘s formulation that human dignity requires that individuals be treated as ends in themselves and not merely as means to an end.64 Some, like the German and Polish Constitutional Courts, argue that it is an absolute rule that prohibits the State from depriving innocent persons of life under any circumstances, even in order to protect the lives or human dignity of other innocent persons. Some scholars argue the opposite – that Kant‘s moral philosophy allows the sacrifice of innocent lives where such sacrifices have the effect of saving a greater number of innocent lives.65 Others, Schopenhauer, for example, have derided the entire idea of human dignity as being without intelligible meaning or
61 Ibid. at 678, 712 and 722.
62 Quoted in R. George Wright, ―Treating Persons as Ends in Themselves: The Legal Implications of a Kantian Principle‖ (2002) 36 U. Rich. L. Rev. 271 at 271, note 1.
63 Möller, supra note 26 at 459.
64 Wright, supra note 62 at 274 (―Any claims [to have arrived at the understanding that Kant intended] are hopelessly indeterminate.‖) and McCrudden, supra note 55 at 659.
65 Other scholars argue that Kant‘s moral philosophy allows such sacrifices of innocent lives where such sacrifices have the effect of saving more innocent lives. See infra, section (IV)(B)(ii).
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content.66 Another notes that its lack of substance and guidance raises ―the corresponding danger of delivering exactly the answer that happens to suit the interpreter‘s personal moral or political views best.‖67 The German Court‘s approach to human dignity will be critiqued further, infra at section II(B)(iv)(b). iii. The ―Right to Life‖
While human dignity, however it is conceived, is commonly accepted to be the basis for all human rights, the right to life is seen by many as pre-eminent among human rights since ―[w]hen life is deprived, it is impossible to enjoy any fundamental freedom.‖68 The right to life, however, (even in the eyes of those who rank it above all other rights) is not an absolute right and its existence does not impose unlimited duties upon the State. In the words of Professor Dinstein, it is ―in effect, the right to be guarded against (arbitrary) killing.‖69
Different international and domestic human rights instruments define individual rights and State duties in respect of human life in different ways. For the purposes of the present analysis, I will focus upon the formulation of the right as it appears in the most widely-accepted instrument, the ICCPR.70 It provides that every person has the right to
66 Schopenhauer famously remarked that: ―‘Human Dignity,‘ once it was uttered by Kant, became the shibboleth of all perplexed and empty-headed moralists.‖ Quoted in McCrudden, supra note 55 at 661.
67 Möller, supra note 28 at 463.
68 See, for example, Kenneth Watkin, "Assessing Proportionality: Moral Complexity and Legal Rules" (2005) 8 Y.B. Int‘l Human. L. 3 at 14 (quoting Professor Dinstein). This view of the pre-eminence of the right is also shared by the United Nations Human Rights Committee, the body that supervises the implementation of the ICCPR, which calls the right to life ―the supreme right.‖ UN Human Rights Committee, General Comment No 6: The Right to Life (Article 6), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994) at para. 1. See cf., Saskia Hufnagel, ―German Perspectives on the Right to Life and Human Dignity in the ‗War on Terror‘‖ (2008) 32 Criminal Law Journal 100 at 101, (―Human rights lawyers typically disclaim any hierarchy of rights.‖).
69 Quoted in B.G. Ramcharan, ―The Concept and Dimensions of the Right to Life‖ in B.G. Ramcharan ed., The Right to Life in International Law (Dordrecht: Martinus Nijhoff Publishers, 1985) 1 at 4.
70 As of 8 August 2010, the Covenant has 166 State Parties. Online: UN Treaty Collection
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not be arbitrarily deprived of life71 (my emphasis) and imposes a correlative obligation upon States Parties respect that right and to ensure that persons who are subject to its jurisdiction are not arbitrarily deprived of their lives.72 Similar protections against arbitrary deprivation of life appear in the American Convention on Human Rights,73 the African Charter on Human and Peoples’ Rights,74 and the League of Arab States‘ Revised Arab Charter on Human Rights.75 The ECHR, which was adopted prior to the ICCPR, contains a different formulation, setting out an exhaustive list of permitted limitations to the right to life.76 On at least one occasion, the Grand Chamber of the European Court of Human Rights (ECtHR) has implied that these limitations would constitute at least a subset of non-arbitrary deprivations of life, speaking of the ECHR as providing ―a general legal prohibition of arbitrary killing by agents of the State.‖77
The use of the term ―arbitrary‖ in defining the scope of individual protection and State duty has been criticized as lacking in precise legal meaning. It seems clear from the travaux preparatoires to the ICCPR, however, that the drafters‘ much-debated choice to adopt the term was intended: first, to reflect a realistic approach to the right to life,
71 Supra note 49, art. 6(1): ― Every human being has the right to life. […] No one shall be arbitrarily deprived of his life.‖
72 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.‖
73 22 November 1969, 1144 U.N.T.S. 123 (entered into force 18 July 1978), art. 4(1).
74 27 June 1981, 1520 U.N.T.S. 217 (entered into force 21 October 1986), art. 4.
75 22 May 2004, reprinted in (2005) 12 International Human Rights Reports 893 (entered into force 15 March 2008), art 5(2).
76 Supra note 51, 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. in defence of any person from unlawful violence; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. in action lawfully taken for the purpose of quelling a riot or insurrection.
77 See McCann and Others v. United Kingdom (1995), ECtHR Case No. 17/1994/464/545 at para. 161, 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.‖
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recognizing that there do exist circumstances under which the taking of life by the State may justified; and second, to ensure sufficient flexibility so that the content of the right (and exceptions and limitations to it) could be developed over time without the constraint of a fixed enumeration of specific exceptions that would necessarily be incomplete.78
The obligation to respect and ensure the right to not be arbitrarily deprived of life imposes two different types of duties upon the State, both of which are relevant to the rogue civil airliner problem. These are generally called negative duties and positive duties, which respectively enjoin the State from acting or from omitting to act in certain ways.
Negative duties ―require States to not interfere in the exercise of rights‖ – to refrain from particular acts.79 Violation of these duties comes about as a result of State action. Thus, the State‘s negative duty in respect of the right to life is to not act so as to arbitrarily deprive a human being subject to its jurisdiction of life.
Positive duties, on the other hand, require States to take positive action (―reasonable and suitable measures‖) to protect the rights of the individual.80 Positive duties are not unlimited. States must ―exercise due diligence to prevent, punish, investigate or redress the harm caused by … acts by private persons or entities‖ that would impair individual rights.81 Violation of positive duties is brought about by inaction (or an omission to act) on the part of the State. Thus, the State‘s positive duties in respect of the right to life
78 B.G. Ramcharan, ―The Drafting History of Article 6 of the International Covenant on Civil and Political Rights‖ in Ramcharan ed., supra note 69, 42 at 43 and 51-52. As Professor C.K. 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 [preparatoires] 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.‖ C.K. Boyle, ―The Concept of Arbitrary Deprivation of Life‖ in Ramcaharan ed., supra note 69, 221 at 225.
79 Jean-Francois Akandji-Kombe, 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 and Daniel D. Nsereko ―Arbitrary Deprivation of Life: Controls on Permissible Deprivations‖ in Ramcharan ed., supra note 69, 245 at 246.
80 Akandji-Kombe, ibid. at 7 and 11.
81 UN Human Rights Committee, General Comment No. 31: supra note 38 at para 8.
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include an obligation to take practical ―preventative operational measures‖ to prevent persons subject to its jurisdiction from attacking the physical integrity or life of another individual where there is a real and immediate threat to that individual of which the State is aware or ought to be aware.82 Positive human rights duties underlie many of the specific duties of State officials in the law enforcement context, a fact recognized in the considerable body of IHRL surrounding State uses of force (including deadly force) in the context of law enforcement operations.
Some note must also be taken of the protection of the right to life in relation to the derogation or suspension provisions of the ICCPR and several of the regional IHRL instruments. These provisions permit the State to suspend or derogate from human rights under extreme and specific circumstances such as armed conflict or a public emergency that ―threatens the life of the nation.‖ In all cases, however, the right to life (as that right is defined by each instrument) is excluded from suspension or derogation.83 As a result, the discussion of permitted limitations to the right to life must, it would appear, be confined to one that analyzes whether a particular deprivation of life is arbitrary or not.84
82 Gloria Gaggioli & Robert Kolb, ―A Right to Life in Armed Conflicts? The Contribution of the European Court of Human Rights‖ (2007) 37 Israel Yearbook on Human Rights 115 at 129 and Osman v. United Kingdom, [1998] E.H.R.R. 101 at para. 115ff (ECtHR). See also UN, Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, UN GAOR, 2006, UN Doc. A/61/311 at para. 37.
83 ICCPR, supra note 49, art. 4. See also ECHR, supra note 51, art. 15, American Convention on Human Rights, supra note 73, art. 27 and Revised Arab Charter on Human Rights, supra note 75, art 4. As Professor Provost rightly notes, these provisions are permissive. They authorize the derogation of some rights under particular circumstances while exluding other rights including the right to life from the scope of the permission. Thus, they leave open the possibility that other circumstances might arise in which derogations of the right to life might be permitted. Supra note 44 at 220-221. It is difficult, however, to imagine what such circumstances might be since, logically, they would have to be more extreme even that a threat to the very existence of the State.
84 This approach would seem to be consistent with one possible reading of the International Court of Justice‘s advisory opinion in the Nuclear Weapons case, supra note 33. While recognizing that the right to not be arbitrarily deprived of life is non-derogable, even in the case of a public emergency threatening the life of the State (at para. 25), the Court could not exclude the possibility that the State‘s fundamental ―right to survival‖ might provide circumstances under which the use of nuclear weapons could be consistent with IHL (and, therefore not ―arbitrary‖) (see paras. 95-97).
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B. Constitutional Human Rights Jurisprudence Addressing the Rogue Civil Airliner Problem
With this background in mind, I move now to a review and critique of the existing human rights jurisprudence that addresses the rogue civil airliner problem. This body of jurisprudence is not extensive – to the author‘s knowledge, it consists of only two judicial decisions. Both concern domestic legislation that authorized, under particular circumstances, the use of deadly force by the State to shoot down a rogue civil aircraft in a purely law enforcement (i.e., non-armed conflict) context. Both cases arose from legal challenges alleging that the legislation was inconsistent with the protection of human dignity and the right to life provided for in the constitution of the State. While much of the discussion in section II(C) will concern instruments that distil IHRL‘s norms into positivistic statements of law, these two decisions reflect a more ―first principles,‖ philosophical approach to human dignity and the right to life. A discussion of these cases can, therefore, be of assistance in gaining insight into the existing theoretical approaches to these principles; principles whose relevance extends beyond the domestic and into the international sphere of protection of human rights.
It must be noted at the outset that the decisions, neither of which was written in English, are accessible to the English speaker only through Court-provided translations, in one case of the complete decision, in the other of key passages selected by the Court. A critical analysis of the reasoning contained in the decisions (to the extent that it can be understood from those translations) suggests that their persuasive value is limited – indeed, the available portions of each are not completely or persuasively reasoned. Such an analysis is, however, of considerable value in beginning to demonstrate why the norms relied upon by the Courts, particularly their shared approach to human dignity, are unsatisfactory in analyzing the rogue civil airliner problem. A discussion of the decisions also allows an opportunity to engage with the considerable body of commentary on the cases and provides additional ―colour‖ to the rogue civil airliner problem, introducing additional thematic features of the legal, moral and social landscape within which the problem arises.
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i. Proportionality Theory of Constitutional Human Rights
Before embarking upon this discussion, a brief digression for the purpose of introducing the approach to human rights that is generally taken by both of the Courts whose decisions I am about to critique is in order. Building upon the work of Professor Dworkin and based upon a study of the German constitutional order, Professor Robert Alexy has posited a very influential theory of constitutional approaches to the protection of human rights that has application across a broad range of State constitutional orders, particularly those that have emerged in the post-Second World War era of human rights and that feature extensive guarantees of those rights.85 The theory described by Professor Alexy is reflected in the constitutional human rights jurisprudence of both the German and Polish Constitutional Courts.86
Professor Alexy sub-divides norms into two mutually exclusive sub-categories: ―rules,‖ which are absolute, applying in ―all or nothing‖ fashion, but only within their scope of application; and ―principles,‖ which are ―optimization requirements,‖ expressions of ―ideal oughts‖ that are valid across the legal order as a whole but apply in a ―more-or- less‖ fashion. Conflicts between rules are dealt with (avoided or resolved) by carefully defining each rule‘s scope of application. Conflicts between principles, which do not have the categorical nature of rules, are dealt with through a balancing process that weighs the importance of the competing principles to the situation at hand, favouring the ―weightier‖ principle while also seeking to apply the other principle to the extent legally
85 Robert Alexy, A Theory of Constitutional Rights, trans. by Julian Rivers (Oxford: Oxford University Press, 2002). See also, Kai Möller, ―The Right to Life Between Absolute and Proportional Protection‖ LSE Law, Society and Economy Working Papers 13/2010, online: SSRN
86 The elements of Professor Alexy‘s theory will also be familiar to scholars of Canadian law, who will recognize, albeit in different terms, the elements of the analysis undertaken by Canadian courts to determine whether a limitation of a right protected by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, is a ―reasonable limit‖ that is ―demonstrably justified in a free and democratic society. See s. 1. See also, R. v. Oakes, [1986] 1 S.C.R. 103 at paras. 69-70 and Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 at paras. 92-96.
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and factually possible.87
Professor Alexy conceptualizes rights as principles and, therefore, subject, where they are in conflict, to being limited by other rights that are more important (‗weightier‖) in the circumstances. He describes a ―proportionality test‖ that uses the following elements to analyze whether a particular limit should be permitted:88
1. Legitimate Ends. The limitation of rights must serve a legitimate objective;89 2. Suitability. The limitation must be suitable to achieve the legitimate objective. In other words, it must be capable of achieving it; 3. Necessity. The limitation must be necessary to achieve the legitimate objective in that there are no other, less limiting means of achieving it; 4. Balancing. There must be proportionality stricto sensu between the limitations positive effects and its negative effects – the costs must not clearly outweigh the benefits. As Professor Alexy conceives of it, the balancing test is flexible enough to capture even categorical conceptions of particular rights. Deleterious effects on such rights would be treated as having infinite weight in the balancing exercise so as to preclude any countervailing interest.90
For the sake of completeness ,I note at this point that while some scholars imply that Professor Alexy‘s theory may be extended to an analysis of rights protected by IHRL,91 others insist that IHRL‘s lack of a mature and stable institutional structure to review State
87 This description is drawn from the work of Professor Scheinin in summarizing and paraphrasing Professor Alexy. Supra note 36 at 55
88 See generally, Alexy, supra note 85 at 57-66. See also, Möller, supra note 85 at 3, Möller, supra note 28 at 458 and Mattias Kumm, ―Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement‖ in George Pavlakos, ed., Law Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford: Hart Publishing, 2007) 131 at 137. Professor McCrudden provides another useful description of the common elements among similar proportionality analyses, supra note 55 at 715.
89 Whether the objective is sufficiently important to justify the limitation is addressed in the ―balancing‖ portion of the analysis.
90 See Alexy, supra note 85 at 102 and Alexy, ―Thirteen Replies‖ in Pavlakos, ed., supra note 88, 333 at 344.
91 Professor Kumm, indeed, uses the theory to analyze the jurisprudence of the ECtHR in respect of the ECHR. See supra, note 88 at 137-139. Professor Möller makes a similar implication. See supra note 88.
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reliance on a proportionality-based analysis means that IHRL should continue to be approached from a more absolutist perspective.92 ii. The German Aviation Security Act Case (2006)93
Animated by both the 9/11 attacks and to an incident two years later in which the pilot of a small private aircraft threatened to crash it into a skyscraper in the financial district of Frankfurt, the Bundestag, the lower house of the German Federal Parliament, passed the Aviation Security Act (Luftsicherheitsgesetz) in early 2005. The Act authorized various possible operational responses to rogue (or ―renegade‖) civil aircraft – aircraft ―that [had] been taken command of by people who want to abuse them as weapons for a targeted crash‖94 – in a law enforcement (―non-warlike‖) context.95 These possible responses included the employment of armed forces ―to support the police forces‖ in order to prevent an imminent and ―especially grave accident‖ caused by the rogue civil aircraft.96 If lesser measures failed to divert the renegade aircraft,97 the Act authorized the armed forces to ―force the aircraft off its course in the air space, force it to land, threaten to use
92 See Scheinin, supra note 36 at 63. The reference appears to refer, in particular, to the rights protected by the ICCPR. See, also UN, Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, U.N. Doc. E/CN.4/1984/4 (1984), arts 5, 10 and 11, which reflect an approach to limitations to the rights protected in the ICCPR that, while similar to that described by Professor Alexy, limits its proportionality analysis to a comparison of the effects of the limiting measure with the importance of the legitimate aim to be achieved (as opposed to comparing all positive and negative effects). See also, infra, sections II(C)(ii)(c) and III(B).
93 Dr. H. et al. v. s.14.3 of the Aviation Security Act of 11 January 2005 (2006), File no: 1 BvR 357/05 (German Federal Constitutional Court). An English translation of the complete judgment may be found online: Federal Constitutional Court
94 Ibid. at para. 7. The Court‘s definition is consistent with the definition of rogue civil aircraft used in the present analysis and captures both passenger carrying (rogue civil airliners) and non-passenger-carrying aircraft.
95 Ibid. at para 120.
96 Aviation Security Act of 11 January 2005 (Germany), § 13(1). All quotations of legislative provisions are drawn from the translation of the Federal Constitutional Court‘s decision, ibid..
97 Ibid. § 15(1).
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armed force or fire warning shots.‖98 The resort to such aggressive measures was subject to several conditions (which apparently sought to codify, in the context of the rogue civil aircraft problem, the German constitutional jurisprudence‘s ―proportionality‖ analysis): the measures had to be necessary; cause the least impairment to individuals and the general public; and not result in a ―detriment that [was] recognizably out of proportion to the aspired success.‖99
As a final resort, § 14(3) of the Act authorized the Minister of Defence to order the ―direct use of armed force‖ but only ―where it must be assumed under the circumstances that the aircraft is intended to be used against human lives, and where this is the only means to avert the imminent danger.‖100
The Aviation Security Act was controversial from the time of its tabling and quickly attracted a legal challenge to its constitutionality brought by a collection of prominent citizens (who were granted standing on the basis that ―they frequently use planes for private and professional reasons‖ and, therefore, could be affected by the act in a manner that was more than theoretical).101 On 15 February 2006, the German Federal Constitutional Court (FCC) held that the ―final resort‖ provision, § 14(3) of the Act, was incompatible with Germany‘s Basic Law – its Constitution.
The Court‘s primary basis for finding the impugned provision to be ―completely unconstitutional and consequently … void,‖102 dealt with the Basic Law‘s separation of legislative competence between the governments of the Federation and the States (Länder) and is of no consequence to the present discussion.103 It is its second basis for
98 Ibid. § 14(1).
99 Ibid., § 14(2).
100 Ibid., §§ 14(3) and (4).
101 Dr. H. et al., supra note 93 at para. 33. For a description of the circumstances surrounding the Act‘s passage and the legal challenge, see Möller, supra note 28 at 457-458.
102 Dr. H. et al., supra note 93 at para. 153.
103 Interestingly, it appears that the Court, at the request of the States of Hesse (home of Frankfurt Airport, Europe‘s busiest) and Bavaria – who both participated in the 2006 case, advocating the constitutionality of the Act – has recently heard new arguments regarding the Basic Law and the authority of the federal
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striking down the law, however, that is of particular interest to the present analysis for the issues that it raises in both human rights law and moral philosophy. Considering the Act from the perspective of constitutional human rights law, the Court held that to the extent that it authorized the shooting down of an aircraft carrying innocent passengers and crew (who the Court recognized to be, themselves, ―victims of an attack on the security of air traffic‖)104 – the impugned provision was inconsistent with the Basic Law‘s protection of the right to life105 read in conjunction with its guarantee of human dignity.106
This human rights-focused portion of the Court‘s decision has been the subject of considerable academic discussion, with commentators divided between praising and criticizing the result and the reasoning underlying it.107 Somewhat surprisingly, in light of the extent of the commentary, the decison‘s actual analyses of the substantive content of human dignity and the right to life are both short in length and do little to set out its
government to deploy armed forces to address threats posed by rogue civil aircraft (although apparently not rogue civil airliners). See ―Court Reconsiders Deploying German Military to Fight Domestic Terrorist Attacks‖ (10 February 2010), online: Deutsche Welle
104 Dr. H. et al., supra note 93 at para. 116.
105 See Basic Law for the Federal Republic of Germany, 23 May 1949 (Official English translation), online: Deutscher Bundestag
106 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 28 at 458, notes that the official 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 (one where ―any interference will automatically amount to a violation of the right‖) than ―inviolable.‖
107 See for instance, 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 Law Journal 761 (praising the decision as ―remarkable‖ and criticizing the Act as ―pretend[ing] to prevent something which will hardly happen again in this way‖) and Hörnle, supra note 30 (who is particularly critical of the Court‘s absolutist approach to human dignity). In an earlier article, Professor Hörnle provides a lengthy list of articles approving of the decision. Tatjana Hörnle, "Hijacked Airplanes: May They Be Shot Down?" (2007) 10:4 New Criminal Law Review 582 at 584, note 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.
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reasoning process. The previous jurisprudence on the subjects is described in three short paragraphs, with the analysis of the Aviation Security Act occupying a mere three more.108
The essence of the Court‘s reasoning is centered upon the relationship between the right to life and human dignity; its approach is to interpret the right to life through the lens of human dignity.109 The Court describes human dignity as the ―supreme value‖ of the Basic Law, one that cannot be taken away from any human being and which is possessed by all persons irrespective of their qualities, their physical and mental state, their achievements and social status or, indeed, the probable duration of their individual lives.110 Consistent with much of its prior jurisprudence,111 the Court adopts an approach to human dignity that reflects the absolutist moral philosophy commonly associated with Kant‘s categorical imperative,112 asserting that ―the obligation to respect and protect human dignity generally precludes making a human being a mere object of the state.‖113 Applying this approach to the rogue civil airliner problem and, more precisely to the notional innocent passengers and crew members that the claimants before it represented, the Court goes on to hold that by authorizing the State to kill innocent persons on board a rogue civil airliner in order to save or protect the lives of other innocent persons, §14(3) of the Act not only deprived the passengers and crew members of life but also treated them – persons who could ―no longer influence the circumstances of their lives
108 The brevity of the Court‘s discussion of the human rights aspects of the case has been noted by German commentators in particular. See Hörnle (2007), ibid. Professor Möller, supra note 28 at 463 notes the ―relatively short and formal style employed by courts in civil law countries‖ but remarks that ―even by German standards, the judgment is remarkable in its brevity, or, at least, its brevity in its central passages.‖ To use an artistic metaphor, the reasons appear as a sketched outline on a blank canvas, leaving commentators to fill in the empty spaces on the basis of their particular perceptions and theories.
109 This metaphor is drawn from McCrudden, supra note 55 at 681.
110 Dr. H. et al., supra note 93 at para. 117.
111 Möller, supra note 28 at 459, notes that despite its central and ―untouchable‖ role in German human rights jurisprudence, ―[n]o general theory of what is part of human dignity has yet been successfully put forward,‖ although the most widely accepted approach is that adopted by the Court in the present case.
112 ―Act that you use humanity, whether in your own person or in the person of another, always at the same time as an end, never merely as a means.‖ Quoted in Wright, supra note 62 at 271, note 1.
113 Dr. H. et al., supra note 93 at para. 119.
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independently of others in a self-determined manner‖ – as ―mere objects, ignoring their status as ―subjects endowed with dignity and inalienable rights‖ and denying them ―the value which is due to a human being for his or her own sake.‖114
The Court provides some further insight into its reasoning in a subsequent series of brief paragraphs, in which it introduces and then dismisses in curt, summary fashion, a number of possible objections to its decision. It harshly rejects any suggestion of a social contractualist approach – that a person, in boarding an aircraft, consents to its being shot down in order to save the lives of other on the ground115 – as ―no more than an unrealistic fiction.‖116 It also rejects the argument that the lives of the innocent persons on the aircraft are forfeit in any event and that refraining from shooting down the aircraft does not save but only prolongs those lives for a relatively short time,117 asserting that ―human life and human dignity enjoy the same … protection regardless of the duration of the physical existence of the individual human being.‖118 The Court gives short shrift to a conception of the passengers and crew as ―part of a weapon,‖ stating that such a view ―expresses in a virtually undisguised manner that [they] are no longer perceived as human beings but as part of an object.‖119 It refuses to accept (or, under the circumstances, even comment upon the possible existence of) a purported obligation on
114 Ibid. at paras. 121-122.
115 Professor Hörnle expresses the idea in a slightly different manner, adopting Rawls‘ idea of the ―veil of ignorance:‖ persons who are ignorant about their individual positions should a hypothetical rogue civil airliner situation become real might agree beforehand that shooting it down is the appropriate action (relying on the statistical unlikelihood that they would be on board the aircraft). Hörnle, supra note 107 at 589-590.
116 Dr. H. et al., supra note 93 at para. 129.
117 Professor Bohlander states the matter bluntly, noting that the innocent persons on board the rogue civil airliner are ―already dead.‖ Supra note 23 at 580.
118 Dr. H. et al., supra note 93 at para. 130. The Court adds, somewhat circularly that ―whoever denies this or calls this into question denies [the innocent passengers and crew] precisely the respect that is due to them for the sake of their human dignity.‖
119 Ibid. at para. 132.
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the part of the innocents on board the aircraft to sacrifice themselves in the interests of the State.120
Finally, and most interestingly from the perspective of the present analysis, the Court refuses to allow the State (through the Act) to undertake a proportionality analysis that would balance the right to life claims of persons on board the aircraft (innocent and otherwise) with those of the innocent persons against whom the rogue civil airliner is targeted. The Court recognizes that the State has competing duties in respect of these competing claims: the negative duty to those persons on board the aircraft and the positive duty to those persons who it must be assumed the aircraft targets. While indicating that it is prepared to grant the State a wide margin of appreciation in choosing how to fulfill its positive duties to protect the right to life, the Court holds that the course of action the State chooses must be one that is consistent with the Basic Law. Thus, in fulfilling its positive duties, the State cannot fail to fulfill its negative duties when doing so would be inconsistent with human dignity. In that respect, the Court finds that § 14(3), by both denying the innocent passengers and crew members the right to have their lives respected by the State and disregarding their position as subjects, is incompatible with the Basic Law‘s guarantee of human dignity and the ―ban on killing that results from it for the state. The fact that this procedure is intended to serve to preserve and protect other peoples lives does not alter this.‖121
The Court buttresses its human rights conclusions by raising a number of practical concerns, many relating to factors of time and space. It points to the small size of German airspace. It notes the time that would be required to effect an intercept and visual check of the aircraft, along with the inherent communication challenges and the ―multi-tiered decision-making system‖ required to fulfill the Act‘s conditions and the ―enormous time pressure‖ associated with these factors. Noting also that attempts to exhaust the statutorily-mandated less forceful preventive measures and to establish the factual prerequisites to trigger a decision to use armed force against the aircraft would be
120 Ibid. at para. 133.
121 Ibid. at paras. 135-137.
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fraught with uncertainties and speculation, the Court concludes that any decision would necessarily be made on the basis of suspicion only.122
The Court does hold that § 14(3) could be compatible with the right to life in conjunction with the guarantee of human dignity in one particular set of circumstances: where there were no innocent persons on board the aircraft and it was either unoccupied or occupied only by persons intent on using it as a weapon.123 According to the Court, a decision to shoot down such an aircraft would not treat the individuals aboard it as mere objects. Rather, it would hold them responsible for the consequences of their own self-determined conduct and, indeed, allow them the opportunity to determine whether or not to comply with directions that would avoid a last-resort shooting down, treatment that would, in the Court‘s view, be entirely consistent with respect for their individual human dignity.124 It is only under these particular circumstances, where those on board the aircraft are deprived of the right to life but not deprived of human dignity (circumstances that apparently also mitigate the Court‘s previously expressed practical implementation concerns),125 that the Court is willing to engage in a proportionality analysis. Applying the various elements of its test, the Court concludes: that the Act‘s objective of saving lives of innocent persons targeted by the rogue civil aircraft is sufficiently important to justify a ―serious encroachment upon the right to life of the offenders on board the aircraft;‖126 that under particular circumstances (including all of those required by the Act) the authorized shooting down of the aircraft would be suitable and effective in achieving the objective; that the shooting down of the aircraft would be necessary in the sense that ―no equally effective means is apparent that does not impair the offenders‘
122 Ibid. at paras. 123-127 and 131.
123 In these circumstances, according to my definition of the problem, the State is faced with a rogue civil aircraft that is not a rogue civil airliner.
124 Ibid. at paras. 140 and 148.
125 Ibid. at para. 140.
126 Ibid. at paras. 143.
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right to life at all, or impairs it less‖;127 and, finally, that the shooting down would comply with the requirement of proportionality of effects, comparing the weight of the seriousness of the encroachment of the offenders‘ fundamental rights and the ―weight of the legal interests that are to be protected‖ including the right to life of those on the ground.128
One final aspect of the decision is of interest to our analysis – the German Government‘s reaction to it. Numerous members of the Government, including both the Chancellor and the Minister of the Interior were publicly critical of the decision129 and in November 2007, the Minister of Defence made a public statement to the effect that a rogue civil aircraft ―would be shot down notwithstanding the court‘s ruling and that state action would be justified under [a] suprastatutory state of emergency.‖130 This strong suggestion of a divergence between the lex lata of human rights (at least in the German constitutional context) and the social and political reality might be what the Court was hinting at in the following isolated sentence written in the context of its discussion of factual uncertainties likely to surround any decision to shoot down a renegade aircraft: ―It need not be decided here how a shooting down that is performed all the same, and an
127 Ibid. at paras. 144-145. One of the circumstances required by the proportionality analysis is that shooting down the aircraft would ―not have consequences that are detrimental to the lives of people on the ground‖ – that is to say persons in the area in which the debris of the shot-down aircraft would strike the surface. See paras. 144 and 150-151.
128 Ibid. at paras. 147-149. Professor Möller is particularly critical of the Court‘s drawing of a distinction between situations in which the aircraft is carrying innocent persons and situations in which it is not. See infra, note 151 and associated text.
129 Miguel Beltran de Felipe & Jose Maria Rodriguez de Santiago, ―Shooting Down Hijacked Airplanes? Sorry We‘re Humanists,‖ online: (2007) Berkeley Electronic Press 1983
130 Hufnagel, supra note 68 at 109-110. Hufnagel describes the German doctrine of suprastatutory state of emergency as similar to the common law ―defence‖ (actually a justification or an excuse) of necessity (at 102) but notes that, although it has been pleaded in a number of constitutional cases, it remains untested (at 110). Note that at common law, necessity cannot be a defence to murder. R. v. Dudley and Stevens (1884), 14 Q.B.D. 273 (C.C.R.). Professor Bohlander uses a variation of the rogue civil airliner problem to critique this rule. See Bohlander, supra note 23. For a brief discussion of State claims of necessity as a circumstance precluding responsibility for an internationally wrongful act, see infra, section IV(D)(ii).
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order relating to it, would have to be assessed under criminal law.‖131 iii. The Polish Aviation Law Case (2008)132
The second case dealing with the rogue civil aircraft problem from a constitutional human rights perspective is the 2008 decision of the Constitutional Tribunal of the Polish Supreme Court striking down that portion of the Polish Aviation Law that authorized the shooting down of a civil aircraft being used to carry out a terrorist attack. Given the influence of the German Basic Law and its interpretation by the FCC upon the drafting of the post-Cold War Polish constitution,133 it is not surprising that the approach taken by the Polish Tribunal is similar and the final result identical to that of the FCC in the earlier Aviation Security Act case.
The Tribunal holds that ―human life is the highest value in our civilization and legal culture … the deprivation of life annihilates the human being as the carrier of rights and obligations.‖134 However, the constitutional right to life is not absolute and the Polish Courts have allowed limitations on the right where such limitations are necessary to protect or realize other constitutional values, rights or freedoms.135 Any such limitations must meet a ―cumulative list of prerequisites‖ – the ―proportionality‖ test – including the
131 Dr. H. et al., supra note 93 at para. 128. Professor Möller, supra note 28 at 461-462 refers to this sentence as ―suspiciously short and almost hidden‖.
132 Re: 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 (2008), File no: K44/07 (Polish Supreme Court, Constitutional Tribunal). Although a complete English translation does not exist, the following discussion is based upon an English summary that contains excerpts from the decision. See online: Polish Constitutional Tribunal
133 See McCrudden, supra note 55 at 673. The Polish Constitution provides that: ―The inherent and inalienable dignity of the person … shall be inviolable. The respect and protection thereof shall be the obligation of public authorities‖ (art. 30); and ―The Republic of Poland shall ensure the legal protection of the life of every human being‖ (art. 38).
134 Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 6.
135 Ibid. at paras. 9-10. See also, art. 31(3) of the Polish Constitution: Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.
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requirement of a proportionality of effects: ―the effects of the regulation introduced are proportional to the burdens it places upon the citizen.‖136 The prerequisites are more stringent where the individual‘s right to legal protection of life is concerned. Limitations on this right are permitted only where it is absolutely necessary as a last resort (an ultima ratio measure) and only where another‘s right to legal protection of life is at stake.137 This combination of conditions would appear to support a law authorizing law enforcement officials to kill a criminal in self-defence or in the defence of others since such actions would not deprive the criminal of his dignity. However, the Constitutional Tribunal, like the German Court, refuses to permit any balancing of rights to life that takes place in circumstances that also deprive the individual of human dignity (by ―depersonifying‖ or ―reifying‖ them, in the words of the Tribunal) presumably on the basis that doing so would ―violate the essence of rights and freedoms.‖138 Indeed, in the result, the Tribunal concludes that ―[t]he self-granted authorization of the State to kill [the innocent passengers and crew], if only for the protection of lives of other people remains in contradiction with the right [i.e., the right to life] at issue,‖139 and that ―such an ultimate legal measure when used against persons on board who are not aggressors, i.e. the remaining passengers and crew, certainly violates their personal dignity.‖140 On the topic of the conflict between the State‘s duties in respect of the right to life of the innocent persons on board the aircraft and its duties in respect of those on the surface, the Tribunal‘s approach is indistinguishable from that of the FCC, holding that the State, as part of the positive aspect of the right to legal protection of life, has an obligation to guarantee the security of both those persons on board the aircraft and those on the ground. However, the State‘s failure to fulfill this aspect of the obligation cannot be used
136 Ibid. at para. 12. The full list of prerequisites requires that: the limitation must be prescribed by statute; the limitation must be ―functionally related‖ to the achievement of one of the permitted public interest objectives specified in art. 31(3); the limitation must be necessary (‗indispensible‘) to the achievement of the permitted objective; and the [salutary] effects of the limitation must be proportional to the burdens (the deleterious effects).
137 Ibid. at para. 13.
138 Ibid. at para. 18.
139 Ibid. at para. 14.
140 Ibid. at para. 16.
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to justify non-observance of the negative aspect – its obligation to not deliberately deprive innocent persons of life.141 iv. A Critique of the Jurisprudence
Although the Aviation Security Act case is rightly described as the leading case dealing with the rogue civil airliner problem (and, indeed, in the area of balancing competing State duties arising from competing rights claims),142 some of its prominence stems from the fact that, as one of only two existing decisions, and the only one completely translated out of its original language, it ―occupies the field,‖ so to speak. Given the less than persuasive nature of some of its analysis, the decision‘s influence should not be over- estimated. To begin with, notwithstanding some similar reasoning in the Polish case, the German approach to human dignity is one that is not shared by many (indeed most) States.143 A complete critique of human dignity as a legal concept is well beyond the scope of my analysis; for present purposes, it is sufficient to point to the failure of both Courts to apply their chosen formulation of human dignity to the individuals on both sides of the problem with which they were faced (i.e., to those on board the aircraft and to those targeted on the surface) and to argue that to actually do so is to encounter an irreconcilable conflict of duties resulting from irreconcilable claims to human dignity.
There is much else of which to be critical in the decisions. Prior to turning to the fundamental incoherence of the Courts‘ approach to human dignity, some brief comments regarding other areas of the decisions are in order, since they suggest that had the Courts properly considered the factual circumstances, they might have applied their theoretical approaches to the law differently. A review of these shortcomings also provides us with the opportunity to consider some of the foundational theoretical questions that must be addressed in order to fully understand the rogue civil airliner problem.
First, a brief note about the practical concerns raised by the Courts. While they may not
141 Ibid. at para. 15.
142 Möller, supra note 85 at 2.
143 McCrudden, supra note 55 at 699 and 711, Hufnagel, supra note 68 at 101.
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appear to raise issues of substantive human rights, per se, the legitimacy of these concerns cannot be denied or discounted. There is no doubt that any rogue civil airliner scenario will occur on a very compressed timeline – most likely on the order of minutes rather than hours. In that short time, State decision-makers and actors will attempt to collect, communicate and assimilate information, to develop and assess various courses of action (possibly involving different governmental organizations including police, security and military forces, each with its own chain of command and operational procedures) and to communicate and execute whatever decision is made. They will do so in a fog of factual uncertainty but with the full and certain knowledge of two things: that innocent lives hang in the balance; and that a decision cannot be avoided. Any failure to decide is, in its effect, a decision to not act against the aircraft that brings with it the potentially deadly and damaging consequences of such a decision: injury and death to a significant number of innocent persons; significant damage to property on the surface; the potential for indirect physical effects such as environmental damage; and serious indirect effects to the political and social order of the State such as a loss of public confidence in the State‘s ability to protect persons subject to its jurisdiction (both in the air and on the surface) from violent crime and the risk of future rogue civil airliner incidents resulting from the State‘s perceived unwillingness or inability to respond.
My factual model is intended to (artificially, to be sure) eliminate most of the factual uncertainties so as to focus on other aspects of the problem. That said, even a carefully contrived factual model cannot provide certainty. Thus, any theoretical approach to the rogue civil airliner problem must account in some way for inevitable factual uncertainties – and do so in a way that is more nuanced than the simple refusal to either decide or act that is countenanced by the German and Polish Courts. a. Intentional v. Foreseeable Consequences
The Courts‘ characterization of the rogue civil aircraft problem – the characterization that leads to their application of Kant‘s ends/‖mere means‖ formulation of human dignity – is based upon two key presumptions that are both factually and theoretically flawed. These flaws are brought about by the Courts‘ underlying conflation of intention with
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foreseeability. Both Courts characterize, without analysis, the shooting down of a rogue civil airliner as an intentional killing of all of those on board, including the innocent passengers and crew members.144 Such a characterization oversimplifies the complex moral and legal dilemma at the heart of both the rogue civil aircraft and rogue civil airliner problems and misses the distinction between the intended and the merely foreseeable.145
Professor Hills provides a useful description of the distinction. One intends a consequence if the following four conditions are true: one is committed to making the consequence occur, one plans how to bring it about; one constrains one‘s other intentions to make sure that they do not conflict with bringing about the consequence; and one judges one‘s success by assessing whether he was successful in bringing about the consequence. One does not intend a consequence if, in carrying a plan, one is committed to reducing the chances that the consequence will occur or is indifferent to whether the consequence occurs. A consequence is foreseeable if one is aware that in executing a plan one is certain or likely to bring about the consequence but is not committed to it.
In the rogue civil airliner problem, the threat of violent crime against innocent persons, property and other interests on the surface is posed by a weapon, the aircraft, and by the persons who wield that weapon, the person(s) who are in effective control of the aircraft. Assuming (as do our factual model and the Aviation Security Act) that all less forceful measures have failed, the only available method by which the State can protect those persons, property and other interests is to destroy the weapon. If it chooses to act, the
144 Dr. H. et al., supra note 93 at paras. 34 and 128, Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 11.
145 Alison Hills, ―Intentions, Foreseen Consequences and the Doctrine of Double Effect‖ (2007) 133 Philosophical Studies 257 at 260-261 and 277. Professor Hills uses collateral damage caused by aerial bombing as an example of a foreseen but not intended consequence, a treatment that is entirely consistent with IHL‘s treatment of the same subject matter. See also section III(C), discussing the the rogue civil airliner problem in the context of armed conflict. The Harvard Manual on Air and Missile Warfare, supra note 25, in addressing the problem, clearly accepts the view (without even finding it necessary to make it the subject of comment) that any deaths of innocent persons occurring in the (otherwise lawful) shooting down of a rogue civil airliner are not intentional (something that would be prohibited by IHL) but merely foreseeable. See, cf, Kretzmer, supra note 44 at 28, arguing that any acceptance of a proportionality rule in IHRL ―allows what amounts to intentionally killing and wounding of civilians.‖ See also, Bohlander, supra note 23 at 585 who, in considering the question from the perspective of criminal law and possibly using colloquial language, describes the situation as one of ―intended collateral damage.‖
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State‘s aim is to destroy the aircraft; it is not to kill the persons (innocent or otherwise) who are on board. To be sure, the destruction of the aircraft will – barring a miracle – result in the deaths of all of them. Those deaths are certainly a foreseeable (even a foreseen) outcome of such an action; however, they are no more than that. The deaths themselves are not the consequence to which the State is committed.146
This distinction between intentional and foreseeable consequences of an act is certainly a fine one, one that is not permitted in assessing the liability of individuals under the criminal law of most States or, indeed, under international criminal law.147 It is, however, one that is accepted by a number of influential theories of moral philosophy148 and in international law applicable between States, particularly IHL dealing with the consequences of State uses of force during armed conflict.149 Regardless, neither Court even considers the question, choosing to simply, baldly, assume that under the
146 See also Hörnle, supra note 107 at 592 and Möller, supra note 28 at 466.
147 The Rome Statute of the International Criminal Court, 18 December 1998, 2187 U.N.T.S. 90, Can. T.S. 2002 No. 13 (entered into force 1 July 2002), art. 30(2)(b) provides that: … a person has intent where: (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. (emphasis added). See also Kretzmer, supra note 44 at 28.
148 See discussion of the doctrine of double effect, infra section IV(B)(ii) and Hills, supra note 145. Professor Hörnle, supra note 107 at 592, who while recognizing the distinction, is also critical of it: ―it is hard to see why lack of intention should lead to a justification in [the rogue civil airliner problem]: if the actor knows for sure that his conduct will kill persons, these deaths are his choice.‖
149 See Harvard Manual on Air and Missile Warfare, supra note 25, rules 27, 58, 63, 68 and associated commentary. IHL prohibits intentional killing of civilians but accepts the possibility of lawful incidental deaths of civilians provided that they (in combination with other collateral damage) are not excessive in relation to the concrete and direct military advantage anticipated. In doing so, it distinguishes between incidental and foreseeable deaths. See infra, section III(C). As Professor Cohen points out, however, IHL, in its description of indiscriminate attacks also equates excessive incidental civilian deaths with intentional deaths. Amichai Cohen, Proportionality in Modern Asymetrical Wars (Jerusalem: Jerusalem Center for Public Affairs, 2010), online:
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circumstances the use of force against the aircraft constitutes the intentional killing of every person on board. b. Ends v. “Mere Means”
This first flawed characterization of the deaths of those on board the rogue civil aircraft as intentional underlies a second flawed characterization that is more central to and indeed triggers the Courts‘ discussions of human dignity – the assertion that the impugned statutory provisions, by authorizing intentional killing of innocent persons on board a rogue civil airliner, permit the State to treat those persons as ―mere objects,‖ using the deprivation of their lives as a means to achieve the end of protecting the lives of other innocent persons and property on the surface.150 However, even assuming, for the sake of argument, that the State intends to kill the innocent persons on board the aircraft, their deaths are not the actual means by which the State achieves its desired end. In fact, the deaths themselves are neither necessary nor sufficient to achieve the State‘s objective of preventing the rogue civil airliner attack. Put another way, the deaths of the innocent passengers and crew on board the rogue civil airliner will neither cause nor contribute to the State‘s aim of protecting innocents on the surface by preventing the persons effectively in control of the aircraft from perfecting their attack.151 They are incidental or collateral to the achievement of the State‘s aim.152
150 Dr. H. et al., supra note 93 at para. 122, Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 17.
151 Professor Möller points out the following additional inconsistency in the FCC‘s reasoning on this point. If the innocent deaths are the means by which a rogue civil airliner attack is prevented, then the deaths of the persons in effective control of the aircraft must also be the means by which an attack by a rogue civil aircraft (containing no innocent persons) is prevented. Yet the Court finds that State action in the latter case would not offend the dignity of those persons. It does so by arguing that these persons are in a position to self-determinedly respond to lesser State measures and thereby prevent the State‘s use of deadly force against them. He points out the incoherence of this approach: ―[t]aken literally, this interpretation of human dignity would permit torture in just those cases which were at the centre of the torture debate in Germany over the last couple of years,‖ and calls the result ―a doctrinal mess.‖ Möller, supra note 28 at 465-466.
152 Professor Kumm proposes a useful method of distinguishing those persons whose deaths are a mere means to an end, differentiating between ―disablers,‖ whose presence might prevent the State from carrying out an otherwise lawful act and ―enablers,‖ who are used by the State as mere means of achieving a desired goal. Applying this model to the Aviation Security Act case, he concludes that the innocent persons on
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Even if the Courts are correct in assuming that the respective Acts before them authorized intentional killings of innocent persons as a means of achieving the desired end of preventing additional innocent deaths, destruction of property and other interferences with State interests, the Courts‘ reliance on the Kantian means-ends formulation of human dignity remains problematic. There are, indeed, two problems for which the Courts‘ reasoning cannot account: an irreconcilable conflict between the claim to human dignity of the innocent persons on board the aircraft and the claim of those on the surface that the Kantian approach (at least in the categorical form adopted by the Courts) cannot resolve; and an irreconcilable conflict between the claims to the right to life of the same groups of persons which, because human dignity is engaged, cannot be resolved by engaging in a proportionality analysis. The Courts, indeed, appear to go out of their way to avoid such an accounting. c. State Acts v. State Omissions
An analysis of these problems of irreconcilable conflicts requires a brief preliminary discussion of whether or not there is a distinction between acts and omissions on the part of a State. Although both Courts recognize that the State has both negative and positive duties in respect of the right to life of persons subject to its jurisdiction the effect of their reasoning processes is to place the negative duty to not take life in a position superior to the positive duty to protect life. Indeed, they both refuse to allow the existence of a positive duty to protect the lives of innocent persons on the surface to justify a breach of the negative duty to not deprive the innocent persons on board the rogue civil airliner of their lives.153 In other words, the prohibition on acting to deprive individuals of life is, for the Courts, of greater importance than the prohibition on omitting to protect individual lives; acts are more important than omissions. Yet this distinction between acts and omissions, while of great value in judging individual behaviour (at least within the common law tradition), seems less useful in assessing the conduct of a State. board the aircraft are ―disablers‖ and, therefore, not being used by the State as ―mere means.‖ See Kumm, supra note 88 and further discussion, infra section IV(C)(i).
153 Dr. H. et al., supra note 93 at paras. 135-137, Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 15.
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A State, unlike an individual, does not have an interest in being free from restraint in determining his or her conduct. Where matters of public policy are concerned, the State cannot simply choose to avoid making a decision. Even an omission to decide has an effect. Thus, at the level of governmental decisions, there is no valid distinction to be made between acts and omissions. Each has an effect that is attributable to the State.154 This lack of distinction is all the more pronounced where the matter of public policy concerns public safety and the State‘s duty to respect and ensure the right to life and where the State has an immediate capability to intervene effectively – situations like the one raised in our factual model.155 It is, perhaps, easy to treat the innocent persons on the surface as abstractions rather than as real human beings, whose dignity and right to life should not be subjected to a cognitive discount because they are not as readily identifiable.156
If there is no distinction between State acts and State omissions, it necessarily follows that there is no distinction between negative and positive duties. They are of equal weight, symmetrical.157 The Courts‘ reasons, however, treat the duties as asymmetrical and analyze the problem only from the perspective of those to whom the negative duty is owed. By failing to give sufficient weight to the State‘s positive duties they fail to fully
154 See Sunstein & Vermeule, supra note 149. See also Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries contained in ‗Report of the International Law Commission, Fifty-Third Session‘ (23 April-1 June and 2 July-10 August 2001) UN Doc A/56/10, art 2, providing that an internationally wrongful act can result from either an act or an omission.
155 See Hörnle, supra note 30 at 125-126, taking this position in critiquing the Aviation Security Act case. For a similar illustration arguing that there is no effective distinction between police authorities beating an individual and the same authorities standing by and allowing third parties to beat the individual, see Akandji-Kombe, supra note 79 at 11.
156 The Courts‘ failure to give sufficient weight to positive duties to protect may also be the product of a cognitive shortcoming. The Polish Constitutional Tribunal, in particular, refers to the possibility that innocent persons on the ground will lose their lives as ―hypothetical,‖ in comparison to the persons on board the aircraft for whom a decision to shoot the aircraft down ―is a real and irreversible threat, which, in fact, means certain death.‖ Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para.14. This language suggests the possible impact of a salience heuristic – that while the persons aboard the aircraft are more visible and, therefore, salient, the fact that the innocent persons on the surface who will be affected by a successful rogue civil aircraft attack cannot be definitely identified (that they are, ―statistical persons‖) leads to their becoming ―irrelevant abstractions‖ in the Courts‘ analyses. See Sunstein & Vermeule, supra note 149 at 710. The authors go further, suggesting that such a cognitive failure ought not to be a proper basis for morality, policy or law. See 723 and 740ff.
157 Hörnle, supra note 30 at 125.
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acknowledge the conflicts between the duties that relate to both human dignity and the right to life. As a result, they also fail to devise a satisfactory (or indeed any) analytical approach that could be used to address the conflicts. d. Irreconcilable Duties Derived from Irreconcilable Claims
Accepting, for the sake of argument, the validity of the Courts‘ assumptions and their approach to human dignity, a State decision to shoot down a rogue civil airliner would deprive the innocent persons on board of human dignity by treating them as ―mere objects‖ or ―mere means‖ of achieving the end of destroying the aircraft and preventing an additional violent crime from occurring. This is, indeed, what both Courts concluded. A complete understanding of the legal dimension of the rogue civil airliner problem, however, requires that a similar human dignity analysis be applied to the other side of the equation – to the innocent persons on the surface whose deaths would result from a successful use of the rogue civil aircraft as a weapon. These persons too, no less than the innocent passengers and crew, are entitled to the State‘s protection of their human dignity.158
Assuming that the State is not capable of providing these individuals with an effective and timely warning of the rogue civil aircraft‘s attack, their deaths (in the event of a successful attack) are inevitable if the aircraft is not shot down.159 In other words, an omission on the part of the State to shoot down the aircraft will inevitably (I postulate) lead to their deaths. Applying the Courts‘ own chosen logic of human dignity, one concludes that in omitting to shoot down the aircraft where it has the immediate capability to do so, the State treats the deaths of those innocent persons on the surface as a mere means to achieve the end of prolonging the lives (even if only for a short time) of those persons on board the aircraft. This is a perspective that neither Court acknowledges openly, although it does acknowledge the likelihood that the lives of those aboard the
158 See also Beltran & Rodriguez, supra note 129 at 15.
159 Leaving aside, as we have in our factual model, the possibility that shooting down the aircraft will result in death and damage in the locations where the wreckage impacts the surface.
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aircraft can only be prolonged and not saved. As a result, the Courts fail to confront the lack of any satisfactory analytical framework to resolve the conflicting duties.160
This one-sided approach taken in respect of human dignity is extended in the Courts‘ analysis of the right to life (which it considers ―in conjunction with‖ human dignity). While they both purport to hold the position that all human lives are of equal value, the approach they take fails to give equal weight to the rights of innocent persons on the surface of the earth who stand to lose their lives as a result of a violent attack that the State could be in a position to prevent. The Courts correctly hold that if, on the one hand, the rogue civil airliner is shot down, innocent persons on board the aircraft will be deprived of life (albeit only in respect of the short time before they would otherwise be deprived of life by the persons in effective control of the aircraft) in contravention of the State‘s negative duty to them. On the other, they fail to fully consider that an omission by the State to shoot down the airliner, given the immediate capability to do so, would deprive not only the innocent persons on the aircraft but also innocent persons on the surface of life in contravention of the State‘s positive duty to protect them. Thus, regardless of the course of action taken by the State, there will be a causal connection between the State‘s choice and deaths of innocent persons that it is, prima facie, prohibited from depriving of life. Regardless of the course of action, deaths of innocent persons are inevitable and the State, by failing to fulfill either its positive or its negative duties, will bear responsibility for whatever deaths occur.
160 Another flawed characterization on the part of the Courts, is based upon the assumption that the innocent persons on board the aircraft, if given a choice, would choose to extend their own lives (even for the brief period preceding the aircraft‘s striking its target) at the expense of other innocent persons on the surface. This point goes beyond the ―tacit consent‖ argument rejected by both Courts (Dr. H. et al., supra note 93 at para. 129, Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 15) and the ―duty to sacrifice‖ argument rejected by the German Court (Dr. H. et al., supra note 93 at para. 133-134). It does not seem at all outside the realm of possibility that the innocent passengers and crew of a rogue civil airliner, if fully aware of the circumstances and the likely consequences of a successful use of their aircraft as a weapon would freely, self-determinedly, choose to sacrifice themselves. A decision to not shoot down the aircraft in such a case (or, indeed, a legal impediment to doing so) would have the precise adverse effect upon human dignity that the Courts purport to be preventing: precluding the innocent passengers and crew from being able to determine their fate. By presuming that the innocents on board the aircraft would choose to prolong their lives, the Courts have effectively (at least within the context of their existing jurisprudence) pre-determined the eventual result of their analysis.
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The approach of the German and Polish Courts ignores (or at least refuses to engage with) this conflict between individual claims to the right to life and between the State‘s duties to differently-situated groups of individuals. By so doing, the Courts are able to avoid the more difficult problem of addressing the conflict. It is their categorical approach to human dignity, however, that ensures that the irreconcilable conflicts of State duties and individual rights remain irreconcilable.
As has been noted, both German jurisprudence and the Polish Constitution recognize the analytical value of attempting to resolve such conflicts by engaging in a proportionality analysis that includes a ―balancing‖ assessment of whether or not there is a proportionality between the positive and negative effects when one right ―outweighs‖ and therefore limits the availability of another. This analysis provides a legal framework within which to analyze competing individual rights and conflicting State duties.161 It is evident from both decisions that this framework can, in some circumstances, be used to consider and authorize State deprivations of life.162 Here again, however, both Courts employ the categorical approach to the protection of human dignity as a trump, precluding any resolution that detracts from the human dignity of any individuals.163 Where a deprivation of life occurs in such a way as to also deprive the person of dignity, both Courts categorically refuse to even consider the application of an analytical framework that might provide some rational basis for a State decision as to whether or not to shoot down a rogue civil airliner.
I do not here attempt to argue that there are no circumstances under which a balancing analysis should be precluded. What I do argue is that if, as the German and Polish Constitutional Courts purport to do, a balancing analysis is to be rejected on the basis of concerns over human dignity, the Courts cannot simply ignore the other side of the problem. If one accepts a categorical approach to human dignity then an imbalance in claims to human dignity (i.e. the dignity of persons on one side of the problem will be
161 See discussion, supra section II(B)(i).
162 Dr. H. et al., supra note 93 at paras. 143-149, Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 13.
163 For the idea of ―human dignity as the trump,‖ see Hörnle, supra note 107 at 604-607.
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infringed but not that of those on the other side) might properly imply that no balancing is possible. However, if the result of a complete analysis of the problem is an irreconcilable conflict in claims to the right to life, and an irreconcilable conflict in claims to human dignity, then both conflicts must be addressed in some manner. In any event, an irreconcilable conflict in the latter ought not to be permitted to preclude a balancing of the former. e. Summary
By focusing upon the State‘s duties only in respect of the innocent persons aboard the aircraft and by failing to recognize conflicting claims to the right to life where human dignity is at stake (and despite the fact that there are, by the Courts‘ own logic, competing claims to the protection of human dignity), the Courts avoid having to consider these competing claims. This is an abdication of analytical responsibility. More to the point of the present analysis, the decisions suggest that the Courts view State authorities as also being precluded from engaging in a legal approach to the problem that would seek some sort of balancing among its competing duties. The threshold requirement that human dignity not be sacrificed in order to allow a proportionality analysis means that when dignity is involved on both sides of the equation, the result will be determined by the perspective from which the Court commences its analysis.
Because their analysis begins from the perspective of the innocent persons on board the aircraft, the Courts‘ results default to protecting these same persons at the expense of the innocent persons on the surface. This asymmetrical approach and its arbitrary result cannot be tenable where, regardless of the course of action chosen by the State, some individuals will inevitably be deprived of life (or, on the logic of the Courts, dignity). Decisions of such import cannot rest upon such incomplete and logically inconsistent approaches – had the analysis started from the perspective of the innocent persons on the surface, the Courts‘ approach would seem to have resulted in the protection of those on the ground at the expense of shortening the lives of those on board the aircraft. This is neither rational nor predictable; it is random, a coin toss with individual rights. It is an approach that the rule of law cannot countenance.
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A summary of my critique, then: the State‘s duties to protect the human dignity (whatever its content) and the right to life of those innocent persons on the surface who are the targets of a rogue civil airliner are equivalent to those that it owes to the innocent persons on board the aircraft. Faced with an extreme version of the rogue civil airliner problem (where the only way to prevent a successful violent attack by the airliner is to shoot it down), either course of action available to the State (to shoot down or to not shoot down) will deprive innocent individuals of life (and, if one accepts the Courts‘ approach, human dignity). Thus the State is faced with an irreconcilable conflict of duties that results from irreconcilable claims to the right to life (and to human dignity). The approach of the German and Polish Courts to the problem does not provide a satisfactory analytical framework within which to resolve these conflicts. It is neither principled nor effective. The fact that it arrives in practice at results which are arbitrary indicates that it is not in line with the rule of law. Such a conclusion does not imply that the rogue civil airliner should in all cases be shot down. However, it is irrational and illogical to adopt a legal approach to the rogue civil airliner problem that refuses to even consider the possibility of shooting it down by engaging in a more complete analysis of the rights and interests at stake.
Dr. Melzer characterizes the result of the Aviation Security Act case as a ―rejection of collateral damage‖ in the law enforcement context.164 This comment provides a helpful segue to the next stage of our analysis: whether existing approaches to IHRL, including the practically-oriented guidance set in its various ―codes of conduct‖ and ―guidelines‖ that elaborate norms dealing with State uses of deadly force, provide a more satisfactory legal framework within which to consider the rogue civil airliner problem. This analysis includes the question raised by Dr. Melzer‘s comment – can IHRL accept incidental deaths of innocent persons as non-arbitrary and if so, under what circumstances?
164 Melzer, supra note 29 at 15. Strictly speaking, this comment may not be entirely accurate since collateral damage (an IHL concept that includes death and injury to innocent persons (―civilians‖ in IHL) and damage and destruction of civilian objects that are incidental to attacks against military objectives) deals with foreseen but not intentional innocent deaths while the Court took the view that the deaths of the innocent persons on board the aircraft would be intentional.
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C. IHRL Norms Governing State Uses of Force and the Rogue Civil Airliner Problem in the Law Enforcement Context
The judicial decisions discussed in section II(B) deal directly with the human rights aspects of the rogue civil airliner problem, albeit not from the perspective of IHRL but, rather, within the context of constitutional protection of human rights. Together, they represent a forceful (if ultimately unsatisfactory and unpersuasive) statement of a ―first- principles,‖ absolutist position in both moral philosophy and human rights law. The German decision, in particular, has been much commented upon from the perspective of moral philosophy,165 constitutional law,166 international air law,167 and criminal law.168 To date, there has been no similar decision nor any extensive discussion of the rogue civil airliner problem from the strictly IHRL perspective.169
Indeed, in a broader sense, legal analysis of internationally-protected human rights, and particularly the right to life, in relation to the use of deadly force by the State in a purely law enforcement context has tended to focus upon the paradigm case represented by individual State law enforcement personnel using deadly force either to defend themselves or to defend others against an individual (or several) who poses a grave and imminent threat of causing death or serious bodily injury through violence. Legal analysis has been, for the most part, silent on the human rights implications of using force that causes foreseeable and incidental (as opposed to accidental) injury or death to innocent persons who do not pose a threat.
The purpose of this section is to build upon the general description of IHRL contained in section II(A), supra by setting out the existing IHRL analytical framework for the use of deadly force by State authorities in a law enforcement context – in other words, the
165 See, for instance, McCrudden, supra note 55 and Möller, supra note 85, particularly at 10-18.
166 See McCrudden, ibid., Möller, ibid. and Möller, supra note 28.
167 See Geiss, supra note 37.
168 See Hörnle, supra note 107, Hörnle, supra note 30, Bohlander, supra note 23.
169 Dr. Melzer, supra note 29 at 17-18, discusses the case briefly, using it to ―illustrate the differences between the paradigm of hostilities … and the paradigm of law enforcement,― but does not engage in any analysis of the FCC‘s reasoning. See also infra note 223.
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commonly-held requirements that must be met for a State deprivation of life to not be arbitrary – and by attempting to apply that framework to the rogue civil airliner problem. This analysis will demonstrate the flaws in the existing framework when it is applied to the extreme case represented by the rogue civil airliner problem. One of these flaws is the apparent failure to provide a mechanism – any mechanism – to analyze irreconcilable conflicts in State duties resulting from irreconcilable claims to the right to life. This flaw flows from the refusal of existing theoretical approaches to IHRL to accept the possibility of non-arbitrary deaths of innocent persons that are incidental to an otherwise lawful use of force. In the absence of such an acceptance, no resolution mechanism seems possible. The jurisprudence of the European Court of Human Rights (ECtHR) provides a prominent exception, demonstrating at least some acceptance of the possibility of lawful, non-arbitrary, incidental death of innocent persons in existing IHRL although, as we will see, this approach remains imperfect. i. Ensuring State Deprivations of Life Are Not Arbitrary
My first step is to describe the existing IHRL framework governing State uses of deadly force in a purely law enforcement context. This framework applies to all State law enforcement authorities including military personnel employed in a law enforcement or assistance to law enforcement role.170 In its broad strokes, the framework has received near-universal acceptance among States, judicial authorities and scholars. As has already been discussed, my focus is not on any absolute right to life but on the narrower right of human beings to not be arbitrarily deprived of life.171 That said, to be non-arbitrary, any limitation of the right to life must ―be regarded as an extraordinary exception that requires special justification.‖172 In an analysis that deals with competing claims to State protection of the right to life, however, it is important to acknowledge that such extraordinary exceptions do exist. The very acceptance in IHRL of a formulation of the
170 Code of Conduct for Law Enforcement Officials, GA Res. 34/169, UN GAOR, 34th Sess., UN Doc. A/34/46 (1979) 185, online: United Nations
171 See supra section II(A)(iii).
172 Kretzmer, supra note 44 at 24.
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right that allows for State deprivations of life that are not ―arbitrary‖ reflects a recognition that ―[t]he individual‘s right to life cannot […] be considered in isolation. It must be considered together with the rights of the rest of the members of the community.‖173
The substantive content of what comprises an IHRL-permitted, non-arbitrary deprivation of life is found in a variety of sources. Much follows from the practice of States in accepting and adhering, through State practice, to various ―codes of conduct‖ or ―statements of basic principles‖ developed by groups of experts, either with or without official State involvement. These instruments seek to expand upon and provide substantive content to the deliberately broad formulations incorporated in legally binding instruments such as the ICCPR.174 Other ―softer‖ sources of relevant IHRL comprise such diverse elements as reports and comments of supervisory bodies and special rapporteurs, those portions of internationally-developed codes of conduct and guidelines that have not crystallized into customary IHRL, scholarly analysis and judicial decisions that have persuasive value outside of the éspace juridique of the issuing tribunal.
A review of existing IHRL reveals the following generally-accepted norms with respect to State uses of deadly force in a law enforcement context. These norms reflect the obligations undertaken by States to respect and ensure the right of persons subject to their
173 See Nsereko supra note 79 at 246.
174 The norms set out below are drawn, to a considerable degree, from the Code of Conduct for Law Enforcement Officials, supra note 170 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, Havana, UN Doc. A/CONF.144/28/Rev.1 (1990) 112, online:
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jurisdiction to not to be arbitrarily deprived of life. They also provide an indication of situations where the State can be relieved at international law of the negative duty to not deprive a human being of life – where, in the eyes of IHRL, the positive duty to protect the lives of other persons outweighs the duty to not take life. Deaths resulting from State uses of force in a law enforcement context that do not comply with each of these norms will generally be seen as arbitrary deprivations of life. As will become clear, different international law sources organize and express the norms in different terms. Thus the norms summarized below are all interrelated and overlapping. a. Authorized by Law
Consistent with the rule of law, there exists a general requirement that the use of deadly force by the State be authorized according to the law of that State.175 It cannot be, to use a commonly-held, lay definition of arbitrary, ―based on … random choice; capricious.‖176 A discussion of the various forms such authorization can take177 or the procedural and substantive requirements it must meet178 is beyond the scope of the present analysis. The existence of legal authority for the State to use force against a rogue civil airliner is postulated in my factual model. b. Triggered by Positive Duties to Protect
As discussed previously (see section II(A)), IHRL imposes upon the State positive duties to protect the lives of persons subject to its jurisdiction against the threat of grave and
175 Gaggioli & Kolb, supra note 82 at 134, Melzer, supra note 29 at 100, Boyle, supra note 78 at 239.
176 Della Thompson ed., The Concise Oxford Dictionary of Current English, 9th ed. (Oxford: Clarendon Press, 1995.
177 Briefly, depending upon the law 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.
178 See, for instance Nsereko, supra note 79 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.‖
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imminent violence.179 Building upon the idea that providing for common security is one of the bases for the State‘s very existence,180 the obligation to protect individual human beings can be extended and generalized into a broader obligation (or, indeed, a right against other States) to protect persons under the State‘s jurisdiction from threats to ―law and order‖181 or to ―the security of all.‖182 Some care is required however: while human rights law recognizes that the duty to protect security constitutes a component of the positive duty to protect life,183 the term ―security,‖ like the term ―terrorism‖ is one that brings with it both theoretical uncertainties and considerable emotional baggage. One must avoid allowing the use of broad terms like ―security‖ to cloud our understanding of the substance of State duties in respect of the individual‘s right to life in the purely law enforcement context. These duties are not significantly different in the context of a ―terrorist‖ threat to ―security‖ than they are in ―normal‖ times;184 their content must always be considered in the context, not of labels, but of particular fact situations. The point to be made here is that it is only in the context of protecting of select rights (most particularly the right to life) that State deprivations of life may even be contemplated.185
179 Code of Conduct for Law Enforcement Officials, supra note 170, art. 1 and art. 3 (see also, art. 3 commentary, para. (a)).
180 See, for instance, Kimmo Nuotio, ―Security and Criminal Law: The Difficult Relationship‖ in Scheinin et al., supra note 36, 23 at 23 and Lucas Lixinski, ―The Rights/Security Debate in the Inter-American System‖ in Scheinin et al., supra note 36, 97 at 97.
181 Melzer, supra note 29 at 101.
182 OAS, Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OR, Doc. No. OEA/Ser.L/V/II.116/Doc.5, rev. 1 corr. (2002) at para 87. See also American Convention on Human Rights, supra note 73, 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.‖
183 Re: Permissibility of Shooting Down a Passenger Aircraft (English summary), supra note 132 at para. 15.
184 Lixinski, supra note 180 at 97.
185 See, for instance, Universal Declaration of Human Rights, supra note 47, 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.
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The standard of care in fulfilling positive duties is one of ―due diligence‖186 which means that where the State is in an immediate position to fulfill its protective duties, it may (provided that all other conditions are met) be permitted (indeed, even obligated) to deprive one or more human beings of life without such deprivation being ―arbitrary‖.187 c. Distinction
One of the foundational concepts in modern IHL, distinction is a term that is not commonly associated with IHRL. Nevertheless, State uses of force in a law enforcement context are, in effect, constrained by a similar concept: the requirement to distinguish between persons ―who, by their actions, constitute an imminent threat of death or serious injury, or a threat of committing a particularly serious crime involving a grave threat to life and persons who do not present such a threat;‖ and the related requirement to ―use force only against the former.‖188 Unlike IHL, the distinction in IHRL is made on the basis not of status (i.e., ―combatant‖ versus ―civilian‖) but, rather on the basis of particular conduct or the imminent threat thereof.189 The standard of care in distinction is one of reasonableness – a use of deadly force cannot be based upon a mere suspicion that an individual or object poses a threat.190
186 UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Phillip Alston, Addendum: Study on Targeted Killings, UN GAOR, 2010, UN Doc. A/HRC/14/24/Add. 6 at para. 33.
187 Liora Lazarus, ―Mapping the Right to Security‖ in Benjamin J. Goold & Liora Lazarus, eds., Security and Human Rights (Oxford: Hart Publishing, 2007) 325 at 342. See Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, supra note 82 at para. 37.
188 Declaration of Minimum Humanitarian Standards, reprinted in ‗Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Sixth Session, Commission on Human Rights, 51st Sess.‘, UN ESCOR, 1995, U.N. Doc. E/CN.4/1995/116 (Declaration of Turku/Abo), art. 5(1). See also ECHR, supra note 51, art. 2, IACHR, Report on Terrorism and Human Rights, supra note 182 at paras. 90 and 111 and Kretzmer, supra note 44 at 24.
189 Professor Kretzmer argues against the introduction into the law enforcement paradigm of an IHL-like principle of distinction arguing that this would defeat the humanitarian purpose that the principle plays in IHL ―since by forbidding the use of force against some persons … would by implication be legitimizing use of force against others.‖ Supra note 44 at 24. This is a valid concern but not one that arises from the conduct-based distinction discussed above. It does, however, point to the importance of clarity in the language used to express related but different (indeed, distinct) concepts.
190 Melzer, supra note 29 at 102.
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d. Necessity
The use of deadly force by State law enforcement officials must be necessary on three separate axes: qualitative, quantitative and temporal.191 It must be a last resort: ―strictly unavoidable‖192 or ―strictly necessary‖193 for the State to achieve the purpose of fulfilling its positive duties to protect life (qualitative necessity).194 That is to say that the use of deadly force is only permitted ―if other means remain ineffective or without any promise of achieving the intended [and otherwise permitted] result‖ (i.e. self-defence or defence of others).195 The amount of force used must not be more than is ―absolutely necessary‖ to achieve that result (quantitative necessity).196 Finally, the threat against which deadly force is used must be immediate or imminent (temporal necessity).197 e. Precaution
The State must take all feasible precautions to avoid the resort to deadly force and must, in any event, minimize the amount of force used.198 Such feasible precautions may
191 This characterization of necessity is Dr. Melzer‘s. Ibid at 101.
192 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 174, art. 9. Professor Alston asserts that the substance of art. 9 reflects customary international law. Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 2006, supra note 82 at para. 35.
193 Code of Conduct for Law Enforcement Officials, supra note 170, art.3. Professor Alston asserts that the substance of art. 3 reflects customary international law. Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 2006, supra note 82 at para. 35.
194 IACHR, Report on Terrorism and Human Rights, supra note 182 at para. 88, Gaggioli & Kolb, supra note 82 at 136.
195 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 174, art. 4. See also, Gaggioli & Kolb, supra note 82 at 137.
196 Code of Conduct for Law Enforcement Officials, supra note 170, commentary to art.3, ECHR, supra note 51, art 2(2). See also Isayeva, Yusupova and Bazayeva v. Russia (2005), ECtHR Applications Nos. 57947-57949/00 (Isayeva I) at para. 169 and Isayeva v. Russia (2005), ECtHR Application No. 57950/00 (Isayeva II) at para. 173.
197 Melzer, supra note 29 at 101.
198 Note that these first two elements of the principle of precaution simply reflect the principles of qualitative and quantitative necessity.
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include warnings, attempts to arrest and the use of non-lethal measures.199 The State must also avoid and in any event minimize the amount of damage and injury caused by its use of force.200 The norm of precaution provides that all damage and injury is to be avoided or at least minimized and is, therefore, neutral on the question of whether any (unavoidable, minimal and incidental) injury or death may be permitted to persons other than those who constitute the imminent threat. If such ―collateral damage‖ is permitted by existing IHRL (see infra, section II(C)(ii)(b)), it, too, must be avoided and in any event minimized.201 f. Proportionality (of Force)
The amount of force used by the State must be proportional (or indeed, ―strictly proportional‖202) to the seriousness of the threat and to the legitimate objective to be achieved.203 In general, IHRL‘s approach to limitations to human rights is to balance the negative effects of the limiting measure with the importance of the aim that the limitation seeks to achieve. This is the case also with its approach to limitations to the right to life. The norm of proportionality of force deals with the importance of the aim to be achieved by the use of force and ―the question of how much force might be permissible‖ to achieve
199 Melzer, supra note 29 at 102. See also: Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 2006, supra note 82 at para. 41.
200 Code of Conduct for Law Enforcement Officials, supra note 170, art.3, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 174, arts. 4 and 5.
201 Isayeva II, supra note 196 at para. 176, Gaggioli & Kolb, supra note 82 at 134.
202 Isayeva I, supra note 196 at para. 169, Isayeva II, ibid at 173. Interestingly, the ECtHR‘s 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 name. 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 xx at 239 and discussion infra at note xx and associated text.. For an approach that does assert a distinction between necessity and proportionality of force, see Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 2006, supra note 82 at paras. 40-44.
203 Declaration of Turku/Abo, supra note 188, art 5(2), Code of Conduct for Law Enforcement Officials, supra note 170, commentary to art.3, para. (b), Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 174, art. 5(a), Melzer supra note 29 at 101.
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it.204 The State may only use deadly force to respond to a threat of the same magnitude – i.e., force that may cause death or serious injury.205 g. Effective Investigation
Any use of force by the State that results in any deprivation of life must be thoroughly and effectively investigated.206 The purpose of such an investigation is to determine whether or not a deprivation of life complied with the norms set out above – to determine whether or not it was arbitrary. It serves the additional purpose of deterring those officials who might otherwise be tempted to subscribe to a less restrictive standard of care in considering the use of deadly force.207 ―[A] general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities.‖208 The hallmarks of an adequate investigation include: the investigator‘s formal and practical independence from the persons or organizations being investigated; the possibility that the investigation will lead to effective remedies, including criminal proceedings; timeliness of the investigation; and the availability of public scrutiny.209
204 Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 2006, supra note 82 at para. 42. See, more generally, supra note 174.
205 Leaving aside other potentially legitimate aims for the 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 78 at 241-242 (who, in 1985, saw this standard as lex ferenda – a ―goal‖ toward which IHRL should strive to evolve) and Interim Report of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, 2006, supra note 82 at para. 44 (in which Professor Alston, who asserts the standard as lex lata).
206 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, supra note 174, art. 22, UNHRC General Comment No. 31, supra note 38 at para. 6. See also Kretzmer, supra note 44 at 26 and 36.
207 See Boyle, supra note 78 at 241.
208 McCann and Others v. United Kingdom, supra note 77 at para. 161.
209 Isayeva I, supra note 196 at paras. 208-213, Isayeva II, supra note 196 at paras. 209-214. See also Cohen, supra note 149 at 33.
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h. Human Dignity?
Given the approach of German and Polish constitutional law, it is interesting to note that existing theoretical approaches to IHRL appear to eschew giving any substantive content to the concept of human dignity. Although the Code of Conduct for Law Enforcement Officials approved by the United Nations General Assembly provides that ―in the performance of their duty, law enforcement officials shall respect and protect human dignity,‖210 neither the commentary to the Code of Conduct, nor the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, nor scholarly comment provide any further indication that there is an additional free-standing requirement that any State deprivation of life be consistent with some conception of human dignity (or even what that conception might be) in order for the deprivation to not be arbitrary.
Of the seven conditions described above, those that will be of most interest going forward are the four with substantive legal content that has an impact upon the operational decisions regarding whether or not the State uses deadly force in the law enforcement context: distinction, necessity, precaution and proportionality of force. It is these IHRL norms that will form the basis for comparisons with other legal frameworks. Nevertheless, it is important to remain cognizant of the existence and content of the more procedurally-oriented norms since they will continue to be a part of any IHRL legal framework governing the use of deadly force. It is only through the collective operation of all of the norms that IHRL addresses its concern with arbitrary deprivations of life.
IHRL‘s approach to the use of deadly force in law enforcement is notable for its asymmetry – one that I have already noted in my discussion of the German and Polish Courts‘ approaches to the State‘s negative and positive duties in respect of the right to life. While it accounts fully for negative State duties by strictly constraining uses of force intended to deprive individuals of life, its approach to the growing body of law dealing with positive State duties to actively protect the right to life, particularly when the State is in a position to do so, is incomplete. The IHRL framework governing State uses of deadly force in a law enforcement context clearly defaults to the avoidance or at least the
210 Code of Conduct for Law Enforcement Officials, supra note 170, art.2.
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minimization of the use of force. However, while it focuses on circumscribing State uses of deadly force, it pays considerably less attention to the impact of State non-uses of force – situations where violence to innocent persons results from a State decision, despite having an immediate capability to do so, to refrain from the use of force. This approach leaves a gap in respect of situations where deaths of innocent persons are inevitable. ii. Collateral Damage and IHRL
Having described the conditions that the existing framework of IHRL requires in order for a State deprivation of life to not be arbitrary in the law enforcement context, I turn next to the question raised by Dr. Melzer‘s characterization of the Aviation Security Act case as ―failed legalization of ‗collateral damage‘‖:211 do existing IHRL approaches to the right to life in the purely law enforcement, non-armed conflict context accept the possibility of collateral damage, particularly in the form of the deaths of innocent persons that are foreseeable but incidental to State uses of deadly force?212
One cannot help but notice that the commonly-accepted set of IHRL norms that are applicable to State uses of deadly force in the law enforcement context (not to mention the sources from which they are drawn) are silent regarding collateral damage and, in particular, regarding the possibility of incidental deaths of innocent persons. They do not indicate or imply that foreseeable and incidental innocent deaths may be acceptable; neither do they indicate or imply that foreseeable and incidental civilian deaths would be arbitrary. The best that can be said of the existing norms is that they simply do not account for incidental deaths; they leave a gap which, to the extent that it is filled, is
211 Melzer, supra note 29 at 15.
212 For the purposes of the present analysis the definition of collateral damage is that used by the Group of Experts who drafted the Harvard Manual on Air and Missile Warfare, supra note 25: ―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 definition 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 U.N.T.S. 3, Can. T.S. 1991 No. 2 (entered into force 7 December 1979) (―AP I‖), arts. 51(5)(b) and 57(2).
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filled only with scholarly comment. Such comment as exists, however, assumes the paradigm case of law enforcement and is unpersuasive in the context of the rogue civil airliner problem. Like the German and Polish Courts‘ approach to constitutional human rights law, it fails to provide a coherent account for situations like the rogue civil airliner problem where regardless of how the State responds, innocent persons will inevitably be deprived of life. a. The Prevailing View: A Categorical “No”
Dr. Melzer‘s apparent view of the lex lata – that foreseeable and incidental deaths of innocent persons are not permitted by IHRL – is supported by a number of eminent scholars of IHRL and IHL. The predominant view appears to be that any death of an innocent person that is foreseeable and yet incidental to an otherwise lawful State use of deadly force in a law enforcement context would constitute an arbitrary deprivation of life. Some of the more prominent expressions of this view are described briefly below. It is notable that each of these expressions occurs almost as an afterthought, as if it is trite law, not requiring further explanation.213
Judge Meron, in a seminal (and much cited) article, implies that such a norm against intentional innocent death exists, pointing out that ―despite the growing convergence of various protective trends,‖ one of the significant differences remaining between IHRL and IHL is that: ―[u]nlike human rights law, the law of war allows, or at least tolerates, the killing and wounding of human beings not directly participating in armed conflict, such as civilian victims of lawful collateral damage.‖214
213 One might speculate as to whether this scholarship suffers from an availability heuristic – ―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) – in that the ―paradigm‖ case of the law enforcement paradigm involves small-scale, low-level, tactical policing and that extreme cases like the rogue civil airliner are less available (or at least were in the pre-9/11 era during which the existing framework of IHRL was developed. It would, however, require significantly more research (into travaux preparatoires, conference proceedings etc.) that might both support the existence of the heuristic and to exclude other possible explanations for IHRL‘s relative silence on the issue.
214 Theodor Meron, ―The Humanization of Humanitarian Law‖ (2000) 94 A.J.I.L. 239 at 240.
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Similarly, Professor Alston, writing in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has, in his recent Report on Targeted Killings, summarily rejected the possibility that IHRL might accept as lawful any deaths of innocent persons that are incidental to a targeted killing in a law enforcement context as lawful: ―killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.‖215
Professor Smith, extends the comparison between IHL and IHRL. In pointing out that the relationship between IHL and IHRL is an uneasy one in the best of circumstances, he points specifically to the contrast in their treatment of collateral deaths: Where is the common ground between the dignity represented by human rights and the tragedy represented by the ―necessary‖ violence, including collateral violence against civilians, that is sanctioned by the law of war? The utilitarianism of humanitarian law sets it apart from the ―absoluteness‖ of human rights. For military lawyers the central question about the use of force is ―Is it worth it?‖ Can civilian casualties be justified by the military advantage anticipated? Human rights law drives a harder bargain. Certain acts—killing innocent civilians […]—are never worth it, at least that norm is inescapable. 216
Professor Kretzmer, in the context of a discussion of the IHL norm of proportionality of effects, argues that IHRL has no parallel doctrine that would allow State authorities to decide to attack ―a legitimate target in full knowledge that innocent persons will also be hit.‖217 He does suggest one possible exceptional situation where IHRL might permit incidental innocent deaths: ―if the innocent persons are those whom the authorities are aiming to protect by attacking the target.‖ He uses as an example incidental deaths of
215 UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Phillip Alston, Addendum: Study on Targeted Killings, supra note 186 at para. 86. Note that in the preceding paragraph, Professor Alston also expresses the view that a targeted killing within a State‘s own territory (i.e., in a law enforcement context) ―would be very unlikely to meet human rights law limitations on the use of lethal force.‖
216 Thomas W. Smith, ―Can Human Rights Build a Better War?‖ (2010) 9:1 Journal of Human Rights 24 at 25. See also Cohen, supra note 149 at 14-19, pointing out that some human rights advocates seek to extend this approach even into the armed conflict context.
217 Kretzmer, supra note 44 at 27. This view forms the foundation of a broader argument that 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.
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hostages that occur in an attempt to free them.218 He limits even this exception, however, distinguishing it from cases where force is used to protect persons other than those innocent persons who may foreseeably be harmed.219
The opinion of the International Court of Justice in the Nuclear Weapons case might also be understood as further authority for the proposition that IHRL does not allow for incidental deaths of innocent persons in a law enforcement context. The Court‘s observation that what constitutes an arbitrary deprivation of life during armed conflict cannot be decided by IHRL alone as lex generalis but also requires reference to IHL as lex specialis implies that IHRL does not generally incorporate such IHL norms as an acceptance of incidental deaths of innocent persons provided that there is a proportionality of effects. If such a norm existed within IHRL as lex generalis, there would be no requirement to refer to IHL in such a situation.220
The effect of existing IHRL‘s apparent rejection of any foreseeable and incidental deaths of innocent persons in the law enforcement context as arbitrary is to categorically prohibit (regardless of the consequences) the use by the State of deadly force in a law enforcement context to protect the lives of innocent persons if it is foreseeable that doing so will incidentally deprive any innocent person (or, in Kretzmer‘s approach, any innocent person other than those who the use of deadly force is intended to protect) of life. This approach seems radically, even absurdly absolutist. In its extreme form, it would prohibit the State from using deadly force where even one incidental innocent death is foreseeable, even if that use of force could save thousands of other innocent
218 Ibid. at 27, note 52.
219 Ibid. at 29, note 58.
220 Legality of the Threat or Use of Nuclear Weapons, supra note 33 at para. 25. Professor Schabas hints at such an argument: 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) Isr. L.R. 592 at 604. Professor Milanovic discusses appeals to the lex specialis as a means of avoiding conflicts between norms of IHRL and IHL, similarly implying that in the absence of a conflict, no appeal to the lex specialis would be required. Marko Milanovic, ―Norm Conflicts, International Humanitarian Law and Human Rights Law (2010) online: SSRN
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lives.221 There may be some moral attraction to it as part of the pacifist, idealistic strain that animates at least some aspects of human rights law and the deontological school of moral philosophy, but it is an approach that seems inconsistent with social and political reality – at least when the possible effects of adhering to it cross some qualitative or quantitative threshold.222
More important than its lack of consistency with social and political reality, an approach to IHRL that includes a categorical rejection of the possibility of incidental death or injury to innocent persons results in an irreconcilable conflict of State duties resulting from an irreconcilable conflict in claims to the right to life when confronted with the rogue civil airliner problem. This result is logically and legally unsatisfactory for the same reasons that a categorical approach to human dignity is unsatisfactory. The best that can be said of existing theoretical approaches to IHRL in the context of the rogue civil airliner problem is that none of the categorical rejections of the possibility of non- arbitrary incidental deaths of innocent persons have been expressed in the context of a complete analysis of the application of IHRL to such a problem in the law enforcement context.223 b. The European Court of Human Rights’ Approach: A Conditional “Yes”
There exists some authoritative indication, however, of the possibility of a different approach, at least in respect of the right to life as it is protected by the ECHR. This is the view that ―strict HRL proportionality [i.e., proportionality of force used] does not imply that ‗collateral damages‘ are not acceptable‖224 and that at the extreme boundaries of the
221 Professor Möller makes a similar argument in respect of the extreme consequences of the German FCC‘s absolutist approach to human dignity. See Möller, supra note 28 at 458-459.
222 See infra, section IV(B)(ii), for further discussion of threshold deontology.
223 For example, Dr. Melzer uses the German Aviation Security Act case as an example in the introductory portion of his book on targeted killings but does not revisit it. Supra note 29 at 15-18. Professor Kretzmer, too, makes brief use of the outcome of the case to buttress an argument but does not analyze it. Supra note 44 at 28. Similarly, Professor Lazarus uses the case to illustrate the limits to positive duties of the State to protect security but she does not critique it. Supra note 187 at 343.
224 Gaggioli & Kolb, supra note 82 at 137. Professor C.K. Boyle, 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 when using force for a legitimate purpose, ―it be evident
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law enforcement paradigm, IHRL must account in some way for State decisions regarding the use or non-use of deadly force when the deaths of innocent persons are unavoidable.
This view finds some support in the recent jurisprudence of the ECtHR and, in particular, in two decisions addressing the issue of incidental deaths of innocent persons in the context of the right to life as formulated in the ECHR.225 The four cases decided in those decisions arose in Chechnya, during events that the Court characterized not as an armed conflict but, rather, as operations by Russian law enforcement authorities226 in response to a situation that, as the Court accepted, ―called for exceptional measures by the State in order to regain control over the Republic and to suppress [an] illegal armed insurgency.‖227 While holding that these exceptional measures ―could presumably include‖ the deployment and employment of military units, including aviation units equipped with heavy combat weapons,228 the Court also held that, given the circumstances, the employment of these measures had to be judged against a ―normal legal background‖ – that is to say, against the standards of IHRL, specifically the ECHR, and not against the standards of IHL.229
All four cases arose out of aerial attacks made by Russian Air Force aircraft that resulted in the deaths of a significant number of innocent persons who took no part in any use or threat of violence. These persons included relatives of the applicants who had been attempting to escape heavy fighting between Russian forces and Chechen rebel groups.
that greater damage or harm will result unless the purpose is achieved.‖ He does this, however, at the conclusion of a discussion in which he makes clear his rejection of incidental deaths of innocent persons. See supra note 78 at 240.
225 Supra note 51.
226 Isayeva II, supra note 196 at para. 191.
227 Ibid. at para. 180, Isayeva I, supra note 196 at para. 178.
228 Isayeva I, ibid. at para. 178, Isayeva II, ibid. at para. 180.
229 Isayeva II, supra note 196 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-parties urging it to do so.
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In the first three cases, decided in Isayeva, Yusupova and Bazayeva v. Russia (Isayeva I), the Russian pilots claimed to have been acting in self-defence after having been fired upon by two trucks that they said were travelling within a convoy of civilian vehicles. In the final case, Isayeva v. Russia (Isayeva II) the deaths occurred during Russian bombardment of a village in which a large number of insurgents had taken refuge.
The Isayeva decisions were decided in the context of article 2 of the ECHR which, in contrast to the ICCPR and other major IHRL instruments, does not protect a right to not be arbitrarily deprived of life but, rather, sets out an explicit (and exhaustive) list of allowable limitations to the right to life: Deprivation of the right to 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. in the defence of any person from unlawful violence; […]230
What is particularly significant about the Court‘s analysis is that it does not categorically reject any possibility of incidental deaths of innocent persons as being absolutely inconsistent with State duties to protect life, even in a pure law enforcement context (which was the context within which it purported to decide the cases). Instead, he Court recognizes and accepts the possibility that there may exist circumstances under which incidental deaths of innocent persons would not violate the State‘s ECHR obligations.
The Court held that ―article 2 covers not only intentional killing but also situations where it is permitted to ‗use force‘ which may result, as an unintended outcome, in the deprivation of life.‖231 In other words, provided that it complies with the generally- accepted IHRL restrictions on the use of force,232 the State may use deadly force for a ―permitted aim‖ like ―the defence of any person from unlawful violence‖ even if that use of force results in unintended, but presumably foreseeable, deaths of innocent persons. The only limitation placed on such deaths by the Court in addition to those commonly-
230 Supra, note 51, art. 2.
231 Isayeva I, supra note 196 at para. 169, Isayeva II, supra note 196 at para. 173.
232 Ibid.
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held IHRL standards was a logically-related expansion in the scope to the norm of precaution – the State must avoid and, in any event, minimize incidental deaths of innocent persons.233
The only proportionality requirement discussed and applied by the Court in the Isayeva cases was the commonly-held IHRL requirement of proportionality of force – that the force used be ―strictly proportional‖ to (or, to use the Convention‘s language, ―no more than absolutely necessary‖ for) the achievement of the permitted aim.234 While assuming in one decision235 and accepting in the other236 that the use of force may have been justified in order to protect persons from unlawful violence, the Court noted that ―a balance must be achieved between the aim pursued and the means employed to achieve it.‖237
The Court made no reference to, and did not incorporate into its human rights analysis, a proportionality of effects analysis like that developed within the framework of IHL or in constitutional human rights law. This might be seen as an indication that it did not view such a test as being appropriate in the law enforcement context of the cases. It might equally be because the ECHR, lacking a broad, flexible standard allowing for ―non- arbitrary‖ deprivations of life, deprived the Court of jurisdiction to consider a balancing approach. Just as likely, however, is the possibility that, given the facts of the cases, where the amounts of force used were not just excessive but so excessive as to be indiscriminate, there was, in effect, no need for the Court to extend its analysis to the point that such an approach might have become relevant. In both cases, the Court found that the Russian military‘s uses of force had not been ―planned and executed with the requisite care for the lives of the civilian population.‖238 The force used was more than
233 Isayeva II, supra note 196 at para. 176. See also Isayeva I, supra note 196 at para. 171.
234 Isayeva I, ibid. at para. 169, Isayeva II, ibid. at para. 173.
235 Isayeva I, ibid. at paras. 181 and 199.
236 Isayeva II, supra note 196 at paras. 180 and 200.
237 Isayeva I, supra note 196 at para. 181, Isayeva II, ibid. at paras. 181, 191.
238 Isayeva I, ibid. at para. 199, Isayeva II, ibid. at para. 200.
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absolutely necessary, failing to meet the standard of strict proportionality.239 Moreover, the authorities had not taken the precautions required to avoid and in any event minimize incidental casualties to innocent persons.240
Some scholars have been critical of the ECtHR‘s ―Ivory Tower‖ approach to these cases and to other similar cases that arose out of circumstances that might well have been characterized as non-international armed conflicts241 – an approach that has resisted any explicit reference to IHL.242 Others choose to ignore the Court‘s characterization of the cases as not arising in the context of an armed conflict (a characterization that was made in the face of contrary submissions by the claimants and third parties243) and to treat the cases as illustrative of their argument that IHRL can provide protection to victims of non- international armed conflicts that is superior to that provided by IHL.244 Yet another goes so far as to suggest that the decisions must be distinguished from other ECHR decisions since they took place in a context of hostilities and presumably, therefore, reflect the influence of IHL as lex specialis on IHRL in the specific context of an armed conflict.245 However, the Court itself was clear: it dealt with the cases strictly under IHRL, judging them against a ―normal legal background.‖246 Thus its acceptance of the possibility of incidental deaths of innocent persons in the pursuit of a legitimate goal must be taken as an acceptance of such within IHRL.
239 Isayeva I, ibid. at paras. 194-198, Isayeva II, ibid. at para. 189-190 and 198-199.
240 Isayeva I, ibid. at paras. 186, 189 and 195-196, Isayeva II, ibid. at paras. 184-196.
241 For instance, Ergi v. Turkey (1998), ECtHR Application No. 23818/94 and Özkan v. Turkey (2004), ECtHR Application No. 21689/93.
242 See, for instance, Gaggioli & Kolb, supra note 82 at 124ff.
243 See, for instance, Isayeva I, supra note 196 at paras. 157, 162-167, Isayeva II, supra note 196 at para. 167.
244 See William Abresch, ―A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya‖ (2005) 16:4 E.J.I.L. 741 and Kretzmer, supra note 44 at 30-31.
245 Melzer, supra note 29 at 386-392.
246 Isayeva II, supra note 196 at para. 191.
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c. Implications of the European Court’s Approach
The ECtHR‘s approach, by recognizing the possibility of lawful incidental deaths of innocent persons, shows some promise of alleviating the irreconcilable conflicts in State duties that can arise at the extreme boundaries of the right to life. This promise extends to situations like the rogue civil airliner problem where any course of action elected by the State will result in innocent persons being deprived of life. Even if the possibility of incidental deaths is accepted, however, the existing IHRL framework governing State uses of force in the law enforcement context may not be entirely satisfactory in that its limited approach to proportionality may fail to account for the complexities of situations like the rogue civil airliner problem. As a result, it may not provide a sufficiently nuanced or ―surgical‖ approach to resolving irreconcilable conflicts in State duties to respect and ensure the right to life. Limiting the proportionality analysis to proportionality of force may, in some circumstances, prove to be less protective of individual claims to the right to life and overly deferential to the State‘s choices.
In the Isayeva cases the facts made clear that the amount of force used by the Russian armed forces was grossly excessive in relation to the importance of the legitimate aim of protecting innocent persons from unlawful violence or the degree of threat posed by the persons against whom the States operations purported to be directed. As a result, no further, more nuanced analysis was required.
One cannot, however, ignore the possibility that there may exist circumstances where the threat posed or the importance of the State‘s objective is sufficient to warrant the use of deadly force on the existing proportionality of force analysis, where it is necessary in that no equally effective alternatives are available and where all feasible precautions have been taken to avoid and in any event minimize collateral damage and yet, despite being consistent with the full spectrum of existing IHRL norms governing State uses of deadly force, the expected collateral damage, (including incidental deaths of innocent persons that would be permitted but not accounted for in the proportionality of force analysis)
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would exceed the advantages anticipated from the use of force.247 Under such circumstances, the existing IHRL framework, while allowing for the possibility of incidental deaths, would allow for the use of deadly force even though the negative effects of that use of force would be expected to exceed the anticipated positive effects. It is in failing to account for this possibility that the approach taken by the ECtHR in the Isayeva cases, while showing the promise of providing an improved analytical framework for State uses of deadly force that accounts for what would otherwise be irreconcilable conflicts in State duties arising from otherwise irreconcilable claims to the right to life, remains incomplete and, therefore, unsatisfactory.
Indeed, it would appear from this analysis that, if IHRL is to accept the possibility of incidental deaths of innocent persons, its concern for the protection of human life also requires, as a matter of logic, that it also incorporate a requirement of proportionality of effects – proportionality of positive and negative effects or proportionality stricto sensu. Only this sort of additional norm will fill the protective gap that could be left if legal analysis were to be limited to the existing substantive IHRL framework of distinction, necessity, precaution and proportionality of force and ensure that claims to the right to life are properly accounted for.
Without a proportionality of effects analysis, it is possible that the ECtHR‘s approach, if carried forward as is could, under some circumstances, prove to provide insufficient protection to the right to life of innocent persons. If IHRL is to account for the reality that, in some circumstances, any course of action involving the use (or non-use) of deadly force by the State will result in incidental deaths of innocent persons, then it appears that it must incorporate a legal analysis comparing the effects of different courses of action.248
It is important at this point to reiterate that the argument I am pursuing should not be seen as an attempt to weaken human rights protections in the law enforcement context but,
247 For a judicial elaboration of this concern in a constitutional right context, see Dagenais v. Canadian Broadcasting Corporation, supra note 86 at paras. 92-95.
248 See Kretzmer, supra note 44 at 28-29 for a critique of this approach from an absolutist IHRL perspective.
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rather, as advocating an amendment that will bring increased coherence and, perhaps increased protection of the right to life to the IHRL‘s approach to a particular set of factual circumstances. Where the death of innocent persons is both a foreseeable and an inevitable result of a State‘s decision to use deadly force in a law enforcement context, it is clear that some sort of additional analytical step is required to provide a basis for the resolution of otherwise irreconcilable State duties that arise from irreconcilable rights claims.
These conflicts arise where, no matter the State‘s course of action, the deaths of innocent persons are inevitable and the State must choose which innocent persons are to die. These factual circumstances bear more than a passing resemblance to the factual premises that underlie modern IHL‘s approach to the use of deadly force by States during armed conflict that will foreseeably result in the deaths of innocent persons. The analogy is by no means perfect but the IHL approach to balancing the right to life of those innocent persons against the other interests motivating a use of deadly force has become widely accepted. Thus, I turn now to a consideration of how international law, and particularly IHL, balances the State‘s duty to protect innocent human lives against other interests.
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III. Proportionality of Effects and the Rogue Civil Airliner in the Context of Armed Conflict
The purpose of this section is to provide an overview of the relevant portions of the international legal framework applicable in the context of armed conflict. It will demonstrate how, despite IHL‘s acceptance that violence in general and innocent death in particular are unavoidable, the humanitarian impulse has led to the development of norms that seek to minimize the impact of hostilities on innocent persons, with a focus on IHL‘s norm of proportionality of effects.
A. International Humanitarian Law’s Analytical Framework
Although, at least from a Western perspective, IHL and IHRL share similar roots in theology and moral philosophy,249 each has, for the most part and at least until recently, developed and evolved independent of the other: ―they advanced on parallel tracks; different personalities were involved in the projects of IHL and IHRL and represented different state interests.‖250
In contrast to IHRL‘s idealism, IHL has developed along pragmatic lines. As a body of law it is ―based upon the premise that … it is too late to prevent the use of armed violence between the various parties to [a] conflict.‖251 Its aim is reflected in its grundnorm: ―the maximization of humanitarian protections from harms of inevitable wars.‖252 This basic norm is pursued ―by maintaining a balance between military necessity on the one hand and humanitarian imperatives on the other.‖253 Within its zone
249 Watkin, supra note 68 at 34
250 Kretzmer, supra note 44 at 10.
251 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
252 Gabriella Blum, "Laws of War and the 'Lesser Evil'" (2010) 35:1 Yale J. Int'l L. 1 at 44.
253 International Humanitarian Law and Other Legal Regimes: Interplay in Situations of Violence, supra note 251 at 13.
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of application, that portion of IHL with which I am presently concerned accepts the inevitability that persons, even innocent persons, will die as a result of State uses of deadly force,254 even while seeking to minimize the number of such deaths – deaths which come about solely due to those persons being, in effect, ―in the wrong place at the wrong time.‖255
The means and methods of warfare are not unlimited256 and IHL consists of an extensive body of both conventional and customary international law that limits State uses of force during hostilities. In addressing the impact on innocent persons (who, within IHL consist of ―civilians‖ who are not taking a direct part in hostilities) of State decisions to use deadly force in pursuit of a legitimate aim, it incorporates a series of norms that are, despite some terminological differences, in many ways similar to those found in IHRL. It is only through compliance with these norms that an incidental deprivation of the life of an innocent person that occurs in the context of an armed conflict will be consistent with IHL. And it is only through compliance with IHL as lex specialis that such a deprivation of life will be not arbitrary, according to the lex generalis of IHRL.257 As was the case in IHRL, there is a degree of conceptual overlap among these norms. i. Distinction
States contemplating the use of deadly force (an ―attack‖ – a term that applies equally to offensive and defensive uses of force258) must distinguish between innocent persons
254 W. Hays Parks, ―Linebacker and the Law of War‖ (1983) 34 Air University Review 2, online: Air & Space Power Journal
255 Professor Walzer expresses this sentiment in a slightly different manner: ―not because anyone set out to attack them but only because of their proximity to a battle that is being fought against someone else.‖ Supra note 24 at 151-152.
256 AP I, supra note 212, art 35(1).
257 Legality of the Threat of Nuclear Weapons Advisory Opinion, supra note 33 at para. 25.
258 AP I, supra note 212, art. 49(1).
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(civilians not taking a direct part in hostilities259) and civilian objects on the one hand and military objectives on the other.260 States are not permitted to use deadly force intentionally against civilian objects261 or innocent persons – ―[t]he civilian population as such, as well as individual civilians [not taking a direct part in hostilities], shall not be the object of attack.‖262 ii. Military Objectives
The concept of limiting attacks to military targets is IHL‘s closest analogy to the IHRL norm that a State use of deadly force be necessary to achieve a legitimate end.263 While IHRL treats the use of force, per se, as exceptional, IHL is agnostic. Thus, within the context of armed conflict, IHL presumes that there will exist circumstances under which the use of force will be militarily necessary in order to further the State‘s ―war aims‖.264 Among the limitations it places upon such uses of force is the requirement that they be directed only at appropriate targets – that is, combatants (and civilians taking a direct part in hostilities) and military objectives. Military objectives are objects which by their nature, location, purpose or use make an effective contribution to military action and whose destruction, damage or neutralization offers a definite military advantage.265
259 Ibid. arts. 51(2), 51(3), Jean-Marie Henckaerts & Louise Doswald-Beck eds., Customary International Humanitarian Law (Cambridge: International Committee of the Red Cross, 2005) (―CIHL Study‖), rules 1, 5 and 6.
260 CIHL Study, ibid., rules 1 and 7, AP I, supra note 212, arts. 48 and 50.
261 CIHL Study, ibid., rules 7 and 10, AP I, ibid., art. 52(1).
262 CIHL Study, ibid., rules 1 and 6, AP I, ibid., arts. 51(2) and 57(1).
263 Professor Milanovic suggests that the conflict between the IHRL norm of necessity and IHL‘s lack of such a requirement in respect of combatants, civilians taking a direct part in hostilities and military objectives cannot be resolved. See supra, note 220 at 29-31.
264 Professor Schmitt argues that the principle of military necessity ―is not, as sometimes asserted, a limitation on military operations,‖ but, rather, IHL‘s mechanism for ensuring ―that legal norms not unduly restrict their freedom of action on the battlefield, such that military national interests might be affected.‖ Michael N. Schmitt, ―Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance‖ (2010) 50:4 Va. J. Int‘l L. 795 at 799. This makes military necessity a poor analogy for the IHRL principle of necessity in the use of force.
265 CIHL Study, supra note 259, rule 8, AP I, ibid., art. 52(2).
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iii. Precaution
States are required, when planning a use of force, to take all feasible precautions to avoid and in any event minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.266 These precautions include verifying that the objective to be attacked is a military objective,267 choosing appropriate means and methods of attack,268 providing effective advance warning of attacks unless circumstances do not permit,269 and cancelling or suspending an attack if, at any time, it becomes apparent that the objective is not a military one or that the expected collateral damage will be disproportionate to the anticipated military advantage.270 In contrast to the IHRL norm of precaution, IHL does not, as a matter of law, require the taking of all feasible precautions to avoid and in any event minimize the use of force itself.271 iv. Proportionality of Military Advantage to Collateral Damage
The State must refrain from launching (or continuing) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof (collateral damage), which would be excessive in relation to the concrete and direct military advantage anticipated.272 This is, in essence, a requirement
266 CIHL Study, ibid., rule 15, AP I, ibid., art. 57(2).
267 AP I, ibid., art. 57(2)(a)(i).
268 Ibid., art. 57(2)(a)(ii).
269 Ibid., art. 57(2)(c).
270 Ibid., art. 57(2)(b).
271 Such a requirement may, however, be imposed as a matter of policy, for example in the context of a counter-insurgency where, for operational and political reasons, an emphasis may be placed upon avoiding civilian casualties. Gaggioli and Kolb, supra note 82, at 138 suggest more broadly that IHL requires that prior to launching an attack, ―one should take into consideration the possibility to injure or capture the target of the attack if this is realistically possible.‖ This view, while entirely consistent with IHRL‘s approach to the use of force in a law enforcement context, is not, however, one that is commonly held or adhered to as a matter of IHL applicable during hostilities. See, for example, Milanovic supra note 220 at 28. See also, however, the Israeli High Court‘s use of IHRL norms in governing the use of force in the context of a longstanding belligerent occupation during an international armed conflict in the Targeted Killings Case, infra, note 307.
272 CIHL Study, supra note 259, rule 14, AP I, supra note 212, arts. 51(5)(b), 57(2)(a)(iii).
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of proportionality between the anticipated positive effects and expected negative effects of a use of force.
Further detailed discussion of the IHL norm of proportionality appears immediately below. For the present, it is important to note that the norm of proportionality imposes a legal obligation that is distinct from and complimentary to the obligations of distinction, military objectives and precaution: once military objectives have been identified and all feasible precautions have been taken to avoid or at least minimize collateral damage, a separate assessment of proportionality must be carried out.273 [I]nstead of military necessity justifying any damage to civilians, [the norm of proportionality] orders the attacking power to audit his proposed operation, comparing the foreseeable damage to the civilian population with the expected military advantage … [and] to relinquish the effort to gain a military advantage if its attainment threatens to cause disproportionate harm to the civilian population.274
B. Proportionality of Effects in IHL
As should be clear by now, the meaning of proportionality in IHL is ―very different from its meaning in … human rights law.‖275 While the IHRL rule deals with the relationship between the amount of force a State uses and the threat posed or the legitimate aim that is sought to be achieved, the IHL rule is one that weighs the anticipated positive effects of a use of force (the concrete and direct military advantage) against at least some of the expected negative effects (the collateral damage) – it is a test that measures the proportionality of those effects.
Given its ubiquity in contemporary State practice in targeting, the IHL norm of proportionality is a surprisingly recent innovation in IHL, dating as a reciprocal obligation in conventional IHL to the adoption of Additional Protocol I to the Geneva
273 Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 102 and 112, Kretzmer, supra note 44 at 27.
274 Cohen, supra note 149 at 9.
275 Kretzmer, supra note 44 at 26. Professor Kretzmer provides a lucid description of these differences at 26-28.
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Conventions (AP I)276 in 1977 and in customary IHL to a roughly similar timeframe. Although the never-ratified 1923 Hague Rules of Air Warfare provided the first assertion of a requirement that a military advantage must be ―important enough to justify‖ an attack ―taking into account the danger to which the civil population will thus be exposed,‖277 the practice of belligerent States during the Second World War was such that by its end, ―any suggestion that a belligerent was bound to refrain from attacking a military object because it may lead to large civilian losses was ‗controversial, [or] at least practice had made it controversial.‘‖278 It was, in fact, the devastating effects on civilian populations of the German ―Blitz‖ of Great Britain and the Allied strategic bombing campaigns against Germany and Japan that led eventually to the adoption of the norm, even though it was apparently not even contemplated in the negotiation of the 1949 Geneva Conventions. It was the 19th International Conference of the International Committee of the Red Cross that first adopted a draft rule requiring that belligerent States take all feasible precautions to minimize the effects of hostilities upon civilians and to refrain from attacks if it was apparent that civilian losses and destruction would be disproportionate to the military advantage anticipated.279
Following a series of drafting and diplomatic conferences, the present rule was incorporated into AP I as part of the conventional IHL applicable to international armed conflict. It was not contemporaneously incorporated into conventional IHL applicable during non-international armed conflict by inclusion in Additional Protocol II (AP II),280 although there is considerable learned support for the position that it is now part of
276 Supra note 212. For further discussion, see Gardam, supra note 273 and Cohen, supra note 149 at 8.
277 Rules of Air Warfare Drafted by a Commission of Jurists at the Hague, December 1922-February 1923, online: ICRC
278 Gardam, supra note 273 at 57.
279 Ibid. at 88.
280 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 U.N.T.S. 609, Can. T.S. 1991 No. 2 (entered into force 7 December 1979) (AP II).
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customary IHL applicable in non-international armed conflicts.281
It is important to recognize the relationship that the IHL norm of proportionality of effects has with the other operationally-relevant norms regarding State uses of force during armed conflict and the right to not be arbitrarily deprived of life. While IHL prohibits intentional killing of civilians not taking a direct part in hostilities by prohibiting attacks directed at them, it does not impose such an absolute prohibition on foreseeable and foreseen killings. Provided that all other norms are complied with and there is proportionality between the anticipated direct and concrete military advantage to be achieved and the incidental civilian deaths and injuries and damage to civilian objects then an attack (and the incidental deaths) are permitted by IHL. Nor – according to the reasoning of the International Court of Justice in the Nuclear Weapons Advisory case – would those deaths be considered to be ―arbitrary‖ within the meaning of the ICCPR (and, more generally, IHRL at large).282
Despite the consensus regarding the binding nature of the rule and its widespread
281 See CIHL Study, supra note 259, commentary to rule 14, International Institute of Humanitarian Law, Manual on the Law of Non-International Armed Conflict (San Remo, 2006), online: Durham University Law School
282 Legality of the Threat or Use of Nuclear Weapons, supra note 33 at para. 25. This statement holds only to the extent that the civilians being considered are subject to the jurisdiction of the attacking State, since that is the basis for a State‘s undertaking of obligations under IHRL treaties. This is a fine legal point that ought to have no detrimental impact upon international law‘s protection of civilians since IHL protects them in any event. However, it is important to note that where the relevant civilians are outside the territorial jurisdiction of the attacking State, they are protected only by IHL. See supra, note 38. In the forthcoming discussion of a rogue civil airliner that is within Canada‘s territorial jurisdiction during armed conflict both IHRL, as lex generalis, and IHL, as lex specialis apply.
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application during armed conflicts,283 ―[i]t is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances.‖284 Indeed, there continues to be considerable dispute as to its substantive content and the manner of its practical application. Of foremost relevance to my present study are: the difficulty of giving a value or weight to the effects on either side of the proportionality equation (―dissimilar entities cannot be compared absent a common currency of evaluation);‖285 the meaning to be given the term ―excessive;‖286 the standard by which decisions to use force will be reviewed;287 along with the place of ―human shields,‖ particularly ―involuntary human shields,‖ in the proportionality equation.288 A
283 See, generally (no pun intended) Watkin, supra note 68 at 7-31 for a more complete discussion.
284 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (13 June 2000), online: ICTY
285 Michael N. Schmitt, ―Faultlines in the Law of Attack‖ in Susan Breau & Agnieszka Jachec-Neale eds., Testing the Boundaries of International Humanitarian Law (London: British Institute of International and Comparative Law, 2006) 277 at 293, online: Social Sciences Research Network
286 The authors of the ICRC commentary to AP I famously conflate the terms ―excessive‖ and ―extensive,‖ asserting that ―[t]he Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages shall never be extensive.‖ Yves Sandoz, Christophe Swinarski & Bruno Zimmermann, eds.. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: International Committee of the Red Cross & Martinus Nijhoff Publishers, 1987) at 625-626. This conflation has been roundly criticized by scholars and cannot be said to be part of either the conventional or the customary IHL standard. See, for instance, Gardam, supra note 273 at 106-107, Schmitt, ibid. at 294 and Manual on Air and Missile Warfare, supra note 25, rule 14, commentary at paras. 7-8.
287 A number of States Parties to AP I entered reservations to the relevant portions of the Protocol, setting out their understanding that (in the words of the Canadian reservation): [M]ilitary commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light. See: Canadian Forces, Collection of Documents on the Law of Armed Conflict, Joint Doctrine Publication B-GJ-005-104/FP-011, 2005, online: Office of the Judge Advocate General
288 The issue is whether a State should be allowed to prevent an attack against a military objective by deliberately (and without their consent) placing civilians in a position where they are at risk of being
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number of other areas of on-going debate (such as the theoretical and practical question of whether and how to account for collateral damage on the surface caused by a shot- down aircraft289) are, given our factual model, less germane to the present study.290 These areas of controversy are such that the substantive content of the IHL norm of proportionality is unlikely to be settled for some time. However, there certainly exists a rich body of scholarship and considerable State practice that can assist and guide both legal scholars and State decision-makers (and their advisors) in assessing rogue civil airliner situations. Moreover, there is considerable similarity between the premises underlying the application of the IHL proportionality norm and the facts of the rogue civil airliner problem. In both cases, the State must realistically accept the inevitability that innocent persons will die and ―[a]ttacks that harm civilians are allowed only because no possible alternative exists.‖291
C. The Rogue Civil Airliner Problem in the Context of Armed Conflict
With that in mind, I consider how international law treats the rogue civil airliner problem in the context of armed conflict. For the purpose of this exercise, I modify my factual model so that the person in effective control of the aircraft is a military pilot from Fantasia, a State that is engaged in armed conflict with Canada, although hostilities are generally limited to a theatre remote from Canada. Under these circumstances, the person effectively in control of the aircraft is a combatant. The aircraft, despite its
incidentally harmed during such an attack. While some apparently argue that involuntary human shields should be eliminated entirely from the proportionality calculus, the prevailing debate is between those who would include them but discount their value and those who would give them full value, even if doing so would require a decision to not attack a particular target. See Cohen, supra note 149 at 20, Schmitt, supra note 285 at 299-301.
289 Harvard Manual on Air and Missile Warfare, supra note 25, Section G(III) chapeau commentary at para. 4.
290 Others include questions such as the extent to which attacking forces must accept additional risk to themselves in order to reduce the risk to civilians of incidental death, injury or damage, whether the scope of the anticipated ―concrete and direct military advantage‖ is confined to the immediate tactical operation or extends to a military campaign as a whole and the similar question of whether the scope of expected negative consequences considered is limited to the immediate or extends to what Professor Schmitt calls ―reverberating‖ effects (see supra note 285 at 296).
291 Cohen, supra note 149 at 14. See also Watkin, supra note 68 at 47.
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civilian registration, its civilian passengers and its ordinary role, has become his weapon.
The recently-published (March 2010) Harvard Manual on Air and Missile Warfare is an elaboration by a group of IHL and IHRL experts of international law as applicable specifically to air and missile warfare.292 One of the situations addressed by the Harvard Manual is the rogue civil airliner problem in the context of armed conflict. It is instructive to consider the legal analytical framework set out by this group of experts.
The Harvard Manual‘s provisions expand upon the treatment of civil airliners in the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea,293 which was prepared by a similar group of experts (including some of the same scholars who took part in the preparation of the Harvard Manual). The Harvard Manual‘s treatment of the rogue civil airliner problem, as compared to that in the San Remo Manual, is clearly influenced by the events of 9/11. While recognizing the threat that any rogue civil aircraft can pose, the Harvard Manual‘s provisions are clearly influenced by a particular concern for the human rights of the innocent passengers and crew on board the aircraft. As a result, it sets out a more detailed legal regime that is, in some significant ways, more restrictive of the use of force against rogue civil aircraft than was the San Remo Manual.
The Harvard Manual is not a binding legal instrument; its authority lies in the scholarly eminence of its authorship and the persuasive value of its analysis. It is of interest to my study for two reasons: first, the very fact that the Manual addresses the rogue civil airliner problem; and second, how, in that context, it extends into an armed conflict context legal norms of general IHRL governing State uses of deadly force that do not ordinarily apply outside of a law enforcement context. The Manual‘s treatment of the rogue civil airliner problem in armed conflict provides an illustration of how an analysis of proportionality of effects can be integrated into a legal analysis that is, in all other
292 Harvard Manual on Air and Missile Warfare, supra note 25, rule 2.
293 International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, adopted June 1994 (Cambridge: Grotius Press, 1995). See, in particular, rules 56 and 57.
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relevant operational respects, effectively identical to the analysis that is required by IHRL alone in the law enforcement context.
The Harvard Manual holds that there are circumstances during armed conflict under which a civil airliner, ordinarily protected from attack as a civilian object, may, by virtue of its use, location or purpose, lose its protection and become a military objective, despite the fact that innocent persons (―civilians‖) are on board.294 These circumstances include the use of the aircraft as a means of attack295 and its refusal to comply with orders from State authorities or otherwise resisting interception.296 The Manual recognizes, however, that the presence of innocent crewmembers and passengers on board the aircraft makes the rogue civil airliner a special case in targeting, one that requires particular care in decision-making and that must be analyzed using a more nuanced approach than IHL ordinarily requires. As a result, the circumstances under which the rogue civilian airliner may lawfully be shot down are very strictly prescribed through the addition of norms that are ordinarily applicable only in the law enforcement context.297
The additional norms extended to the Manual‘s treatment of the rogue civil airliner problem reflect a legal appreciation for concerns that IHL, as lex specialis, does not ordinarily require to be accounted for within its armed conflict-centered legal framework. They represent an innovation in the approach of international law to armed conflict, at least in respect of the rogue civil airliner problem, in that they incorporate legal restrictions on the use of deadly force that IHL would not, strictly speaking, require as a matter of law. The addition of these conditions contributes to a more nuanced framework for legal analysis of the problem and also reflects the influence upon international law norms of the moral and political dilemmas associated with the rogue civil airliner problem.
294 Harvard Manual on Air and Missile Warfare, supra note 25, rule 10(b)(ii). See also AP I, supra note 212, art 52.
295 Harvard Manual on Air and Missile Warfare, ibid., rule 1(t), commentary at para. 2, rule 27(a), commentary at para. 7, rule 58, commentary at para 10.
296 Ibid., rule 63, rule 27(a), commentary.
297 Ibid., rule 58. See also section J(III).
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The Harvard Manual‘s approach to the rogue civil airliner in the armed conflict context requires that all of the following norms be complied with in order for an attack to be legally permitted and for any incidental deaths of innocent persons on board to not be arbitrary. i. Sufficiently Important (Military) Objective
Not only must the rogue civil airliner constitute a military objective, but the circumstances under which its use, location or purpose make it a military objective must be ―sufficiently grave to justify an attack.‖298 This condition is one that goes beyond the IHL norms of distinction and military objectives. Indeed, it bears a close resemblance (and is identical in effect) to the IHRL norm of proportionality of force, which provides that a State use of deadly force in a law enforcement context is only permitted where the threat or the legitimate objective to be achieved (i.e., in countering the threat) is sufficiently serious to warrant the use of deadly force. It further emphasizes the particular importance of the claim of the innocent persons on board the aircraft of their right to not be arbitrarily deprived of life.
The Manual‘s approach also reflects the social reality that circumstances sufficiently serious to warrant the shooting down of the rogue civil airliner are matters of grave political importance and that any decision to attack a rogue civil airliner ―ought to be taken at an appropriately high level of command.‖299 This principle, while not expressed in the mandatory language of much of the rest of the Manual, nevertheless also represents some degree of innovation in that it appears that only the one IHL instrument provides for a similar condition.300 Any decision to shoot down the rogue civil airliner must then, at the very least, do those innocent persons the dignity of recognizing and respecting their
298 Ibid., rule 68(c).
299 Ibid., rule 69.
300 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999, 253 U.N.T.S. 212 (entered into force 9 March 2004), art 13(2)(c)(i), which provides that cultural property that is subject to enhanced protection under the Protocol may generally only be attacked if ―the attack is ordered at the operational level of command.‖ See Ibid, rule 69, commentary at para. 2. At present, the Protocol has only 56 States Parties. See online: UNESCO
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intrinsic worth by considering their lives and their value at the highest levels of State authority before making a decision. ii. Necessity
Second, the attack against the rogue civil airliner must be necessary in the sense that ―no other method is available for exercising military control‖301 of the aircraft. This norm (with the exception of the term ―exercising military control,‖ which one may take to mean ―preventing the rogue civil aircraft from accomplishing its aim‖) is another that is familiar from the IHRL framework governing State uses of force in the law enforcement context. It is not a norm that is ordinarily applicable in the context of armed conflict since the lex specialis, IHL, imposes no necessity requirement per se but, rather, assumes that any attack aimed at a military objective is necessary and considers other methods of achieving the same military advantage only in the context of assessing feasible precautions. iii. Precaution
A third set of conditions attaching to uses of force against a rogue civil airliner in an armed conflict context tracks closely with the IHRL norm of precaution, requiring that all feasible precautions be taken prior to a use of force to avoid and in any event minimize both the use of force itself and incidental effects of any use of force.302 ―Feasible‖ precautions are ―[those] which [are] practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.‖303 These include verifying that the aircraft is a military objective,304 the issuing of warnings (when circumstances permit)305 and all feasible attempts to divert the
301 Harvard Manual on Air and Missile Warfare, supra note 25, rule 68(b).
302 Ibid., rules 68(a) and 68(d).
303 Ibid., rule 1(q). This definition is derived from reservations made by States at the time of ratification of AP I. For further, see commentary at para. 1. See also rule 40 and commentary.
304 Ibid., rule 40.
305 Ibid., rules 38 and 70.
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aircraft for landing, inspection and possible capture.306 This norm goes beyond the ordinary IHL approach to precaution, which requires only the taking of feasible precautions to avoid and minimize collateral damage, a requirement that is at least superfluous and at most contradictory to existing IHRL in the law enforcement context, given its general non-acceptance of any collateral damage (at least in respect of human lives).307 The Harvard Manual‘s norm innovates by applying in an armed conflict context the IHRL law enforcement norm that requires that all feasible precautions be taken to avoid the use of force at all.
The reason for this apparent convergence is clearly driven by the particular context in which the general principle is to be applied. The IHL principle of precaution, which requires avoiding and in any event minimizing the collateral effects of an attack is one that, on its face, is less relevant to the rogue civil airliner problem. There is no ―humane‖ way to shoot down an airplane. It must be expected that any act of deadly force against the aircraft will result in the deaths of all on board. As a result, it is of particular importance to ensure that the shooting down of a civil airliner only be resorted to under the most extreme circumstances which must include the exhaustion of all other feasible alternatives. iv. Proportionality of Effects.
Finally, ―with a view to underscoring, in the specific context of civilian airliners … the general principle,‖ the Manual restates the IHL norm of proportionality of effects. As
306 Ibid., rules 68(a). See also, generally, Section G, rule 58, commentary to rule 10.
307 The Israeli High Court of Justice has implied that the requirement of exhausting all lesser means of neutralizing the threat posed by a civilian taking a direct part in hostilities before using deadly force is a requirement of IHL but its dicta was made against the factual backdrop of a long-standing belligerent occupation (arguably a situation closer to law enforcement than to active hostilities). Moreover, in doing so, it relies not on IHL but on cases describing the IHRL principles of precaution and proportionality, notably the ECtHR‘s decision in McCann, supra note 77. See The Public Committee Against Torture in Israel v. Israel (2005), File No. HCJ 769/02 (Israeli Supreme Court sitting as the High Court of Justice) (Targeted Killings Case) at paras. 6 and 40 along with Milanovic, supra note 22 at 30. Gaggioli & Kolb, supra note 82, at 138 suggest more broadly that IHL requires that prior to launching an attack, ―one should take into consideration the possibility to injure or capture the target of the attack if this is realistically possible.‖ This view, while entirely consistent with IHRL‘s approach to the use of force in a law enforcement context, is not, however, one that is commonly held or adhered too as a matter of IHL applicable during hostilities. See, for example, Milanovic supra note 220 at 28.
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discussed previously, such a requirement that ―the expected collateral damage … not be excessive in relation to the military advantage anticipated,‖ is not generally accepted as a component of the IHRL framework concerning the State‘s use of deadly force. In the context of a rogue civil airliner situation arising in the context of an armed conflict, however, it clearly acts as a brake upon uses of force that would otherwise be lawful. Even where the situation is sufficiently grave, where there is no other means of preventing a rogue civil airliner attack and where all feasible preventive steps short of deadly force have been exhausted, the Harvard Manual imposes this additional requirement in clear recognition of the possibility that some grave situations may not be sufficiently grave under the circumstances to warrant shooting down the aircraft. Moreover, the commentary to this norm makes clear that the persons on board the rogue civil airliner are to be included in the proportionality calculation. They are not to be given any less weight in a balancing analysis because they are ―already dead‖ or will be shortly.308 v. Implications of the Harvard Manual‘s Approach
As we have already noted, the norms forming the content of the Harvard Manual‘s ―cumulative conditions‖ mirror quite closely the components of the IHRL framework governing the use of force in a law enforcement context.309 Indeed, in a great many respects, the norms are effectively identical, with IHRL‘s norms of distinction, necessity, precaution and proportionality of force all captured by the Manual‘s norms. This result is not inconsistent with IHRL‘s status. But it also represents an innovation in IHL. In the case of the legal framework used by the Manual to analyze the rogue civil airliner problem, some IHL norms, which are more permissive of State uses of force and which would ordinarily apply notwithstanding the existence of more restrictive IHRL standards, are set aside in favour of those more restrictive IHRL standards. This approach, when
308 Harvard Manual on Air and Missile Warfare, supra note 25, rule 68(d), commentary at para. 3. See also supra note 288 and accompanying text. See, cf., Bohlander, supra note 23 at 580.
309 Note that the conditions also bear a strong similarity to the substantive components of Professor Alexy‘s proportionality theory of constitutional human rights, those of legitimate ends, necessity and balancing. See supra, section II(B)(i).
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combined with the commentary of the group of experts, provides an indication that the rogue civil airliner problem represents a special case in international law, even when it occurs in the context of armed conflict.
The effect of engaging in an analysis of proportionality of effects is, I have suggested, potentially a positive one in both the armed conflict and the law enforcement context. The proportionality of effects norm provides a legal mechanism that is capable of accounting for more complexity in particular situations involving rogue civil aircraft; a more nuanced legal framework that might fill the gap in accounting for the possibility that even where all of the other normative conditions are met, the negative effects of shooting down a rogue civil aircraft might still outweigh the positive effects of doing so.
The questions remaining, then, are whether the addition of a proportionality of effects analysis to the existing IHRL framework governing State uses of deadly force in a purely law enforcement context is theoretically appropriate, if so under what conditions and whether the addition provides a satisfactory framework within which to consider the rogue civil airliner problem in the law enforcement context.
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IV. Proportionality of Effects and the Rogue Civil Airliner in the Law Enforcement Context
This section concludes my analysis of the legal framework applicable to the rogue civil airliner problem in the law enforcement context. After a brief review of my argument and conclusions thus far, I consider the implications of those conclusions. I argue that IHRL should admit, in specific, limited circumstances, the possibility of a proportionality of effects analysis in the law enforcement context. I provide a proposed formulation of a proportionality of effects test and set out the circumstances under which, I submit, its addition to the existing IHRL framework governing State uses of deadly force in a law enforcement context would be appropriate. I consider the alternative possibility of resolving the dilemma posed by the rogue civil airliner problem in an extra-legal manner and conclude with a discussion of whether such a modified IHRL framework provides a satisfactory analytical framework within which to consider the rogue civil airliner problem in a law enforcement context.
A. Review of Argument
I seek to establish that the addition of a proportionality of effects analysis to the existing IHRL framework governing State uses of deadly force in a law enforcement context provides a framework within which to consider the dilemmas posed by the rogue civil airliner problem that is satisfactory, that is to say that the framework is principled, effective and in line with the rule of law and with human rights.
I began by examining existing theoretical approaches to human rights law, both constitutional and international. These approaches assert that human rights law cannot countenance State deprivations of the lives of innocent persons in a purely law enforcement context; that such deprivations would be arbitrary. These assertions have two different theoretical bases. The first is based upon a categorical, deontology-based claim that human dignity (at least a Kantian, ends v. ―mere means‖ conception of it) prohibits it; the second, upon a similarly categorical claim that is based in an idealistic conception of the substantive content of the right to life itself.
The human dignity-centered approach is exemplified by the much-discussed German
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Aviation Security Act case and the similarly-reasoned Polish Aviation Law case, both of which dealt with constitutionally-protected human rights. Despite having reason to doubt the persuasive value of these decisions in that their Kantian approach to human dignity provides a doubtful basis for legal analysis and that, in any event, they appear to be based upon a number of flawed analytical assumptions, I engaged with the Courts‘ approach on their own terms. Unlike the Courts, however, I applied their theory of human dignity to both sides of the rogue civil airliner problem: the persons on board the aircraft and those targeted by it on the surface, and in respect of both courses of action available to the State: to shoot down the aircraft or to allow those in effective control of it to perfect their attack against persons and property on the surface. The result was a conflict in State duties to ensure human dignity brought about by a conflict in claims to dignity on the part of the individuals on each side of the problem. Given the absolute value placed on human dignity by (at least some conceptions of) the Kantian approach, these conflicts were irreconcilable: any course of action taken by the State would deprive persons of human dignity; the dignity of the members of one group cannot be ensured without depriving the members of the other group of their own dignity.
The right to life-centered approach involves an application of the considerable body of existing IHRL that governs State uses of deadly force in a purely law enforcement context. While the norms constraining the use of force are silent as to the arbitrariness of deaths of innocent persons that are incidental to otherwise lawful State uses of force, the predominant scholarly view categorically rejects such deaths as arbitrary and, therefore, impermissible. The IHRL framework is structured to address the classical law enforcement paradigm, constraining the State from using deadly force in a manner inconsistent with its negative duty to not take life; it is less effective in accounting for the State‘s positive duties to protect life against deprivations by third parties, a duty that is particularly strong when the State has the immediate capability of intervening and preventing the deprivation. Applying the IHRL framework to both sides of the rogue civil airliner problem leads to a conflict in State duties to respect and ensure life: no matter what course of action the State selects, innocent persons will be deprived of life through a failure on the part of the State to fulfill one or more of its duties. Given the existing IHRL framework‘s refusal to countenance any incidental deaths of innocent persons, this
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conflict, too, is irreconcilable.
I conclude that through their inability to address the irreconcilable conflicts in duties and rights, neither the human dignity-centered nor the right to life-centered approach is satisfactory as a framework within which to consider the rogue civil airliner problem. Rather than providing a principled approach to the problem, they lead to arbitrary, capricious results that are inconsistent with the rule of law and fail to fully account for all of the relevant human rights interests. Interestingly, while existing IHRL provides no analytical mechanism to resolve such conflicts, proportionality theories of constitutional human rights do provide such a mechanism, one that includes a proportionality of effects analysis that ―balances‖ competing rights claims. However, in the German and Polish Courts‘ categorical approaches to constitutional rights, such an analysis is not permitted when the result would deprive individuals of human dignity, even in circumstances where there is a conflict in the claims to human dignity.
Any effective and satisfactory analytical approach to the duties of the State in the rogue civil airliner problem must, at a minimum, accept the possibility of unintended but foreseeable incidental deaths of innocent persons in a law enforcement context. The approach taken by the ECtHR shows some promise in this regard by suggesting that foreseeable incidental deaths of innocent persons might, in some circumstances, be consistent with the right to not be arbitrarily deprived of life. Even this approach, however, is incomplete in that does not account for the possibility that there may be circumstances where, despite the application of the full spectrum of existing IHRL norms governing the State‘s use of deadly force, the expected collateral damage, (including incidental deaths of innocent persons) would exceed the advantages anticipated from the use of force. Thus, I conclude that to be coherent, a theoretical approach to IHRL that accepts the possibility of incidental deaths of innocent persons must also include an analysis of proportionality of effects.
I then considered the IHL framework governing State uses of force in the armed conflict context. While accepting the existence of armed conflict and the foreseeability and inevitability of deaths of innocent persons that are incidental to armed conflict‘s equally
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inevitable violence, IHL has developed an analytical framework that nevertheless seeks to avoid and in any event minimize such deaths. The analytical framework employed by the Harvard Manual provides an illustration of how a proportionality of effects test can be integrated with the existing IHRL law enforcement framework, albeit in a non-law enforcement context.
So, to summarize: existing theoretical approaches to IHRL are unsatisfactory because they lead to irreconcilable conflicts in State duties in that deaths of innocent persons are inevitable whatever the State does; those conflicts are only resolvable if IHRL accepts the possibility of incidental deaths of innocent persons under some circumstances; and accepting that possibility as lawful requires also accepting some sort of proportionality of effects analysis. The Harvard Manual illustrates, albeit in a non-law enforcement context, how this could work, effectively integrating a proportionality of effects analysis into the existing IHRL use of force framework.
B. Comparison of Proportionality of Effects in Other Normative Frameworks
In this section I undertake a comparative analysis of the role of proportionality of effects analyses in balancing competing interests within three non-IHRL normative frameworks: IHL, moral philosophy and constitutional human rights law. I conclude that the premises underlying each framework‘s approach to proportionality are sufficiently similar to the factual circumstances inherent in the rogue civil airliner problem in a law enforcement context to indicate that a similar approach, carefully tailored so as to be minimally intrusive to the existing framework, will provide IHRL with a satisfactory method of analyzing the problem. i. International Humanitarian Law
In considering the IHL approach to proportionality of effects, one must certainly remain aware that although, in many ways, they respond to similar humanitarian concerns, IHL and IHRL approach those concerns from different perspectives. That said, however, the IHL norm of proportionality responds to a set of circumstances that shares similarities with those that exist in the rogue civil airliner problem, even in a law enforcement
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context. In both sets of circumstances, the violent deaths of innocent persons are inevitable. In the armed conflict context, the IHL norm of proportionality seeks to minimize those deaths to the extent that is practicable, balancing those deaths (and other elements of collateral damage) against the constellation of conflicting interests that is captured by the phrase ―military advantage‖. In the law enforcement context, a norm of proportionality of effects would, too, seek to minimize innocent deaths. The degree of pragmatism implicit in an IHRL balancing would, however, have to be considerably more limited, with the conflicting interests limited in a manner consistent with IHRL‘s focus upon protecting human rights rather than the gaining of military advantages.
As I have noted, the Harvard Manual‘s approach to the rogue civil airliner problem in the context of armed conflict is to employ an analytical framework that consists of the four core, substantive norms of the IHRL use of force framework (distinction, necessity, precaution and proportionality of force) along with the added IHL norm requiring proportionality of effects: that ―the expected collateral damage will not be excessive in relation to the military advantage anticipated.‖310 This approach confirms that there are circumstances where a pragmatic proportionality of effects analysis can be integrated with IHRL‘s more idealistic approach to strictly limiting State uses of deadly force.
When it comes to the law enforcement context, however, some of the substantive content of the IHL proportionality analysis remains inappropriate. While the rogue civil airliner problems in the two contexts share the significant similarity that the loss of innocent lives is inevitable, there remains a significant difference in how the dilemma of choosing which lives to end must be addressed. The IHL norm of proportionality allows a State to accept foreseeable and innocent deaths of innocent persons in the achievement of an anticipated ―military advantage‖ that is not limited to the protection of other lives. Thus, human lives may be ―balanced‖ against a broad range of interests other than other human lives; anything that might provide a military advantage including the destruction of equipment, weapons and other items of military value or the advantage of gaining or denying to the enemy the use of a particular piece of geography. IHRL on the other hand, to the extent that it accepts any State use of deadly force, accepts it only for the
310 Harvard Manual on Air and Missile Warfare, supra note 25, rule 68(d).
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limited purpose of protecting human life.
This difference between the legal frameworks, while significant, is not insurmountable, particularly in the circumstances of the rogue civil airliner. Part of the difference is narrowed by the factual circumstances. Any ―attack‖ on a rogue civil airliner, regardless of context, will have a defensive purpose. The advantage to be gained from it will be primarily preventative: in an armed conflict context, it lies in preventing the enemy from achieving its own military advantage; in a law enforcement context it lies, similarly, in preventing the person(s) in effective control of the aircraft from achieving their suicidal/homicidal and destructive objective. While the set of possible military advantages in an armed conflict context is thus more limited than it would be in the case of an offensive attack, it still includes matters that go beyond protecting the lives of those on the surface and may, in fact, have no rational connection at all to any goal of saving innocent lives. Thus, the ―balancing‖ that takes place in the context of the rogue civil airliner problem in armed conflict still incorporates other factors not related to the right to life and can involve balancing lives against those factors. Such balancing is anathema to the idealistic foundation of IHRL.
IHRL‘s restrictive approach to the use of force in a law enforcement context is one that must not be interfered with lightly. Its legal framework has proven to be satisfactory in respect of the vast majority of circumstances that might arise in the law enforcement context. As a result, there is no requirement (nor any justification) for a radical amendment to the framework. Indeed, any general incorporation of a proportionality of effects analysis could have the effect of seriously weakening IHRL‘s protective framework by increasing the scope within which State deprivations of life might be considered acceptable.311 Thus, any use of a proportionality of effects norm in a law enforcement context to resolve the irreconcilable conflicts of State duties and individual claims to the right to life must modify the IHL approach to the norm to ensure that the right to life remains at the centre of its analysis.
This effect can be achieved through the combination of three methods. First, the
311 See Kretzmer, supra note 44 at 29.
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circumstances under which a law enforcement proportionality of effects analysis is permitted must be carefully constrained. The addition of a proportionality of effects analysis to the existing IHRL framework must only occur under circumstances that cannot be coherently and satisfactorily addressed by that framework.312 Second, while recognizing that other interests will factor into State decision-making, even in a law enforcement context, the proportionality of effects analysis must respect the significant value that IHRL places on the right to life and assign the lives of persons (particularly innocent persons) a more significant ―weight‖ in the balancing exercise than might be the case in the armed conflict context. Third, and in a similar vein, the analysis must also ensure that valid State interests that do not have a rational connection to the State‘s duties to respect and ensure the right to life are assigned a minimal value – one that ensures that decision-makers do not lose focus on the lives involved.313 ii. Moral Philosophy
I have already noted that the rogue civil airliner problem has a moral element,314 one that was of particular importance to the German Federal Constitutional Court. In its approach to the problem can be seen the categorical view that human lives are of incommensurable worth and an absolutist, deontological approach that holds that nothing, even the saving of other lives (even the saving of innumerable other lives) can justify the taking of even one innocent life. The practical implications of such an approach are clear in the result of the Aviation Security Act case – an irreconcilable conflict in State duties, whose practical resolution is arbitrary and capricious.
Some moral theorists argue that in circumstances like the rogue civil airliner problem, where deprivations of both life and dignity (understood for the purposes of the present discussion to require treating persons as ends in themselves and not as ―mere means to an end‖) of innocent persons are inevitable, the conflict can be resolved by reference to the
312 See infra, section IV(C)(i).
313 See infra, section IV(C)(ii).
314 See Möller, supra note 28 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.‖
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most fundamental premise upon which Kantian deontology is built: individual free will and self-determination. The overriding value Kantian moral philosophy places on the rational autonomy of individuals does not support indifference to how many individuals survive. That would not be in harmony with the value of individual human beings whose personhood rational autonomy defines.315
Thus, in such a truly exceptional situation, where innocent persons will inevitably be deprived of life and deprived of human dignity, there is a claim to be made in moral philosophy that a course of action that preserves the rational autonomy, dignity and lives of more, rather than fewer, persons would be in keeping with Kant‘s fundamental premise.316 If one is committed to the goal of protecting life, one must also be committed to the goal of protecting the most lives. One cannot hide behind ―question-begging claims about the distinction between state actions and state omissions or between killing and letting die.‖317
Another strong moral claim, and one that is more broadly-accepted than a consequentialist reading of Kant, is made by the school of ―threshold deontology,‖ which recognizes ―that at some extreme points, one cannot avoid some consequentialist analysis that would require departure from the absolute prescription‖ and ―responds to the accusation that pure deontology would allow catastrophic outcomes for the sake of moral narcissism.‖318
The approach of threshold deontology is to seek a theory that is strongly protective of life (and, for some theorists, of dignity) but that nevertheless justifies and authorizes limited departures from deontological absolutes once a particular threshold is reached. One of these theories is the doctrine of double effect (DDE). The doctrine is of long-standing,
315 Tom Stacy, ―Acts, Omissions and the Necessity Killing of Innocents‖ (2002) 29 Am. J. Crim. L. 481 at 508.
316 Ibid. at 507-512. David Cummiskey, ―Kant‘s Consequentialism‖ 100 Ethics 586, which makes a similar argument. See also, Blum supra note 252 at 40-44.
317 Sunstein & Vermeule, supra note 149 at 708.
318 Blum, supra note 252 at 43ff.
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deriving from St. Thomas Aquinas‘s writings on self-defence and just war theory319 and generalized and elaborated not only by Catholic theologians but also by secular moral philosophers. It has been applied to the context of armed conflict as an analytical framework capable of resolving a number of key moral dilemmas, justifying not only killing in self-defence or the defence of others but also the deaths of innocent persons that are incidental to the achievement of a military objective.320 DDE provides that an act that is likely to have ―evil‖ consequences is morally permissible provided that each of the following conditions hold:321 1. The act is good in itself or at least indifferent; 2. The direct effect of the act is morally acceptable; 3. The intention of the actor is good – that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a ―mere means‖ to his ends; and 4. There is a proportionality of effects – the good effect is sufficiently good to compensate for allowing the evil effect.322
Some describe the IHL norm of proportionality as being rooted in the doctrine of double effect.323 The analytical similarities are certainly not difficult to perceive. While the philosophical origins of the IHL norm may be more obscure, what is of most importance and interest to my present analysis is DDE‘s analytical similarity with both IHL‘s norm of proportionality applicable in the context of armed conflict and the ―balancing‖ test of Professor Alexy‘s theory of constitutional human rights, a theory which applies primarily in the non-armed conflict, law enforcement context.
319 See Sophie Botros, ―An Error About the Doctrine of Double Effect‖ (1999) 74 Philosophy 71 at 72-73.
320 See, for instance, Joseph M. Boyle, Jr., ―Toward Understanding the Principle of Double Effect‖ (1980) 90:4 Ethics 527 at 528-529.
321 The following elements paraphrase those set out by Professor Walzer, supra note 24 at 153. For an alternative formulation see Botros, supra note 319 at 72-73.
322 Walzer, ibid at 129.
323 See, for example, Watkin, supra note 68 at 26. Professor Blum equates IHL‘s norm of proportionality of effects with DDE, supra, note 252 at 40 while Professor Kretzmer notes the conceptual similarity, supra note 44 at 26. On the other hand, note that Professor Gardam, who describes the history of the norm in considerable detail, makes little mention of any influence of DDE in the emergence of IHL‘s rule. Supra note 273.
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Indeed, even a cursory review of current scholarly debates in moral philosophy demonstrates that the doctrine of double effect has proven to be a useful theoretical tool far beyond the confines of the armed conflict context. It plays a prominent role in many theoretical analyses of moral dilemmas, such as the well-known ―trolley‖ and ―transplant‖ problems324 that mirror many of the features of the rogue civil airliner problem, including the inevitable deaths of innocent persons, prima facie irreconcilable conflicts between duties and claims to rights and the requirement for an analytical framework that will assist in resolving those conflicts in a principled, rather than capricious, manner.
Far from being the consequentialist ―sham‖ that some suspect it of being,325 DDE provides a theoretical device that, in contrast to a broader ―maximization of good‖ consequentialism, recognizes the particular weight of some moral duties and claims but provides an analytical framework to address conflicts that would, in a pure, absolutist deontology, be irresolvable.326 As Professor Joseph Boyle points out in discussing the role of the doctrine in moral philosophy, a commitment to ―a normative theory demanding respect for a set of basic goods‖ (i.e. human rights) requires also a commitment to a proportionality of effects approach like that in DDE. ―Otherwise respecting the goods becomes an impossibility, since any performance can – and many performances do – bring about what is contrary to one or more basic goods.‖327 To put it in the terms of our rogue civil airliner problem, a commitment to the protection of the
324 In the trolley problem, a runaway trolley travels towards five people on the track in front of it, whom it will kill if it strikes them. However, a bystander is able to use a switch which 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, supra note 88 at 153. 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 more healthy patient whose organs, if harvested, will save the ill patients. See Botros, supra note 319 at 75.
325 See Hörnle, supra note 107 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 deontological thinking might seem too harsh.‖
326 Botros, supra note 319 at 73 and 82-83.
327 Boyle, supra note 320 at 538.
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lives of innocent persons means that where a deprivation of innocent life is unavoidable, some sort of proportionality-based, balancing approach must be adopted. iii. Constitutional Human Rights
We have already noted the similarity between the elements of IHL‘s proportionality of effects analysis and elements of Professor Alexy‘s proportionality theory of constitutional human rights. Professor Alexy‘s theory of rights is based upon a conception of the human rights that are characteristically protected in constitutional instruments (and, one might add, IHRL instruments both ―hard‖ and ―soft‖) as principles. He describes principles as ―optimization requirements‖ or statements of ―an ‗ideal ought‘‖.328 Within such a conception of rights, where broadly-defined principles are certain to come into conflict, a ―balancing‖ test based on proportionality is required as an ―analytical structure for assessing whether limits imposed on the realization of a principle in the particular [factual] context are justified.‖329 This is a feature that must be shared by any analytical framework (be it in moral philosophy, political philosophy or law) that is not purely absolutist in its approach to conflicting norms.330
The proportionality analysis at the heart of Professor Alexy‘s theory, one that is reflected in a great number of constitutional orders,331 is described, supra, at section II(B)(i). It includes conditions that any limitation of a right: serve a legitimate end; be suitable to the achievement of that end; and be necessary. The heart of the constitutional proportionality framework, however, is the proportionality of effects analysis that Professor Alexy calls ―balancing‖. The balancing analysis allows for different principles to be assigned different ―weights,‖ depending upon the particular circumstances in which they conflict. This is a very flexible approach, one that in Professor Alexy‘s conception is capable of accounting for the different approaches to various rights and interests that are taken by
328 Alexy, supra note 79 at 57-66. For useful paraphrasings and summaries of the basic building blocks of the theory, see Scheinin, supra note 36 at 55 and Kumm, supra note 88 at 136-137.
329 Kumm, ibid. at 137.
330 See, for instance, Boyle, supra note 320.
331 Including, as we have seen, Germany, Poland and Canada.
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the constitutional orders of different States, including even categorical approaches to particular rights (which can be accounted for by assigning absolute rights an infinite weight in the balancing exercise).332
Professor Alexy‘s constitutional rights theory also provides a useful analogy to IHRL in that both constitutional law and IHRL are concerned with the protection of similar rights and both are capable of doing so in a non-armed conflict context. Moreover, the proportionality-based constitutional and legislative approaches to the protection of human rights taken by States whose constitutional orders are reflected in Professor Alexy‘s theory might be seen as providing some indication (in the form of both State practice and opinio juris in respect of the implementation by those States of their obligations under IHRL) of the possibility of an emerging customary IHRL acceptance of a proportionality of effects analysis where irreconcilable conflicts of State duties and individual rights claims exist.333
C. An IHRL Norm of Proportionality of Effects
The fact that constitutional rights theory, widely-held theories of moral philosophy and IHL all converge upon a similar analytical framework – proportionality of effects – as a means of resolving conflicting claims to protection of strongly-held, ―weighty‖ rights like the right to not be arbitrarily deprived of life, along with the fact that the use of such an approach is not limited to an armed conflict context, supports the use of such an approach to provide a satisfactory theoretical approach to the rogue civil airliner problem in a purely law enforcement context. The strongly IHRL-influenced approach to the rogue
332 See infra, note 335 and associated discussion.
333 Both Professor Möller and Professor Kumm imply that Professor 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‖). See discussion supra, note 91. Such an approach seems, also, 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 92. Professor Scheinin 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 on a practical level the protection of individual rights. Supra note 36 at 63. Professor Scheinin‘s approach, however, does not provide any alternative mechanism to account for the irreconcilable conflicts of duties and rights claims that are inherent in the rogue civil airliner problem.
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civil airliner problem that is taken by the Manual on Air and Missile Warfare is perhaps the closest analogy that is available, although, as suggested above, some adjustments are required. A theoretical basis for those adjustments is suggested in the theories of moral philosophy and constitutional human rights discussed above. i. The ―Threshold‖ – Triggering the Application of the Norm
Drawing from the idea of a ―threshold‖ beyond which categorical approaches to moral or legal questions are no longer appropriate, I ask under what circumstances should a proportionality of effects test be added to the existing IHRL framework governing the use of deadly force in a purely law enforcement context. This is a question that is closely related to the issue of whether an increase in the permissiveness of the IHRL‘s framework might constitute the top of a ―slippery slope‖ of other modifications to the framework that could weaken its overall ability to protect the right to life. The existing IHRL framework governing State uses of deadly force in a law enforcement context has proven itself to be both coherent and effective in most situations. Thus, any modification to it should be limited to what is required to achieve coherence and effectiveness in the circumstances at hand while preserving, to the greatest extent possible IHRL‘s absolutist, idealistic core. This is achieved, prima facie, by limiting the application of an IHRL proportionality of effects norm to situations where the existing IHRL framework governing State uses of deadly force is not satisfactory – where there exists a conflict between State duties to ensure and respect the right to life that arises from irreconcilable claims to that right – situations where, in other words, innocent persons will be deprived of life no matter the State‘s course of action.
An additional question is whether inevitable loss of innocent life should be the only threshold condition. One might argue that human dignity (or at least the Kantian (and DDE) concern over ensuring that persons are treated as ends and not ―mere means‖) should also be addressed. Indeed, if one takes the view that human dignity is sufficiently conceptually clear as to both form a basis for legal debate and standard-setting and serve as an independent source of categorical State obligations to the individual (views of
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which I am skeptical, for the reasons discussed supra334) then one must also limit the applicability of a proportionality of effects analysis by ensuring that it is not permitted in situations where innocent persons are used by the State as ―mere means‖ to a desired end. The problem with this additional threshold requirement is illustrated by the reasoning of the German Court in the Aviation Security Act case – how to identify when a person is being truly treated as a ―mere means‖.
Professor Kumm suggests an analytical approach that shows some promise in addressing this concern. His approach, which can be conceived of as either a compromise between consequentialism and deontology or simply as a clearer way of conceiving of when a person is truly being used as a ―mere means,‖ may provide a sufficiently clear test for limiting the circumstances under which a proportionality of effects analysis may be incorporated into the existing IHRL framework governing the use of deadly force in a purely law enforcement context.
Professor Kumm elaborates his approach in the context of a discussion of Professor Alexy‘s constitutional proportionality theory. He distinguishes between innocent persons whose presence makes them ―enablers‖ to the execution of a State‘s course of action and those who, by their presence, constitute ―disablers,‖ preventing on the basis of a categorical deontology the State from executing a course of action that would otherwise be acceptable. In Professor Kumm‘s model, only those persons who are ―enablers‖ are used as ―mere means‖ of achieving a desired end; when an ―enabler‖ is present, no balancing (indeed, no proportionality approach at all) may be contemplated.335 The
334 See supra, sections II(A)(ii) and II(B)(iv)(b).
335 Kumm, supra note 88 at 154. Professor Alexy, in a response to what he calls Professor Kumm‘s ―genuine contribution,‖ submits that true deontology-based constraints such as those with which Kumm is concerned and which Kumm accounts for outside of the proportionality approach by treating them as a threshold prerequisite to the application of the full proportionality test can be accounted for within proportionality theory itself by giving those concerns infinite weight within the ―balancing‖ (proportionality of effects) equation, such that no competing value or principle can overcome it. See Alexy, supra note 90 at 344. This latter approach provides another way to understand the reasoning of the German and Polish Constitutional Courts in refusing to engage in a proportionality analysis when they perceived that the human dignity of the innocent persons on board the aircraft was at stake – they assigned an infinite value to that factor, thereby making it impossible to engage in a balancing analysis since no factor on the other side of the scale could ―tip the balance.‖
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claims of the disabler, however, may be subjected to a proportionality analysis.336
Applying this model to the rogue civil airliner problem Professor Kumm points out that the innocent persons on board a rogue civil airliner would be ―disablers:‖ ―[t]he claim by the passengers is that the fact that they are on board should disable the government from doing what otherwise it would be permitted to do.‖337 While he does not discuss the innocent persons on the surface, it would seem that they, too, are appropriately conceived of as ―disablers‖ in that their claim is that their presence in the area targeted by the rogue civil airliner is what prevents the State from omitting from shooting down the aircraft where it has the immediate capability of doing so. In the result, Professor Kumm asserts that (at least from a constitutional rights perspective) a complete analysis, including a ―balancing‖ analysis of proportionality of effects, is available.
These two factors then, one derived from the incoherence of existing theoretical approaches to IHRL, the other from moral philosophy, define my proposed threshold beyond which a proportionality of effects analysis should take place. It is only when the deaths of innocent persons (and only innocent ―disablers,‖ if one accepts the ends v. ―mere means‖ theory of human dignity) are inevitable, regardless of the State‘s course of action, that a proportionality of effects analysis should be added to the existing IHRL framework. It is only under these circumstances that the existing approaches to human rights law become incoherent and some additional analytical framework is required. ii. A Proposed Formulation of the Norm
I have already suggested that, in contrast to the IHL norm of proportionality, any IHRL proportionality of effects analysis must, as IHRL itself does, place particular weight upon the right to life. However, once it has been triggered, any proportionality analysis will be ineffective if it perpetuates the theoretical shortcomings that led to its being required in the first place. Therefore, the ―weight‖ placed on the right to life of innocent persons (or innocent ―disablers‖) cannot be infinite. Any legal analysis of the rogue civil airliner
336 Kumm, ibid.
337 Ibid., at 156.
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problem must both accept the reality that innocent deaths are inevitable and then provide a mechanism that will assist State decision-makers to decide upon an appropriate course of action. To categorically assign infinite weight to human lives (or to human dignity) would, in the circumstances of the rogue civil airliner problem simply ―break the scale,‖ so to speak, with infinite weights on both sides rendering any attempt to ―balance‖ through a proportionality analysis nugatory and leaving the irreconcilable conflicts in place.
While the balancing analysis can (and, indeed, must) account for interests other than lives, those additional interests should be limited to only those that are significant to the overall public interest bearing in mind the pre-eminent weight given to the right to life by IHRL. In other words, the interests that can be given positive weight in the analysis are those that are rationally connected to the State‘s duty to ensure and respect the right to life. These additional interests might include environmental effects and damage to infrastructure of a sort that would have an effect upon public and individual health (as opposed to mere convenience or comfort) along with more policy-oriented concerns (also related to the protection of health and life) such as sustaining public confidence in the State‘s ability to provide security and protection of individual rights and deterring future incidents of similar scale and seriousness. These are all matters habitually balanced by governments in making policy decisions with legal implications, not to mention by courts in reviewing such decisions. As such, they should not pose insurmountable challenges to the effectiveness of the modified framework.
With these caveats in mind, how then to formulate the proportionality of effects norm in the particular circumstance of the rogue civil airliner in the law enforcement context? I propose something along the following lines:
Select a course of action that is not expected to result in incidental loss of life to innocent persons, injury to innocent persons, damage to other interests rationally connected to the protection of human life or the combination thereof that is excessive in relation to the concrete and direct advantages, rationally connected to the protection of human life, that are anticipated.
This formulation takes a neutral approach to the available courses of action both in
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refraining from any reference to a direct use of force and in not modifying the term ―excessive‖ with adjectives such as ―clearly‖ which would suggest a default position with respect to the use of force. Its focus upon ―innocent‖ persons is a reflection of the fact that the right to life of ―non-innocent‖ persons is already accounted for in the existing IHRL framework. The requirement that any advantages to be balanced against human life be rationally connected to the protection of human life reflects and retains the pre- eminent value placed upon human life by IHRL.
I submit that, in the specific circumstances represented by the rogue civil airliner problem, a proportionality of effects analysis should be incorporated as an additional norm to the existing IHRL framework that must be met for a deprivation of life to not be arbitrary. This addition will only take place under very limited circumstances – circumstances where, as we have seen, the existing approaches of human rights law give rise to the incoherence of conflicting and irreconcilable State duties in respect of the right to life.338 iii. The Proposed Norm in Context
For ease of reference, a table summarizing and comparing the existing, IHRL-based law enforcement approach to the rogue civil airliner with both the Harvard Manual‘s armed conflict approach and the proposed law enforcement approach, which includes the proposed addition of a proportionality of effects analysis, is set out below at figure 1.
Existing Law Enforcement Proposed Law Enforcement Existing Armed Conflict (See section II(C)(i)) (Harvard Manual) (See section III(C))
Distinction: Distinguish between Distinction: Distinguish between Distinction: Distinguish between ―persons who, by their actions, ordinary civil aircraft and rogue ordinary civil aircraft and those constitute an imminent threat of civil aircraft. Direct attacks only that have become military death or serious injury, or a threat against rogue civil aircraft that objectives (rogue civil aircraft). of committing a particularly constitute a grave and imminent Direct attacks only against the serious crime involving a grave threat of death or serious injury. latter. threat to life and persons who do not present such a threat and use force only against the former.‖
Necessity: Employ deadly force Necessity: Employ deadly force Necessity: Attack a rogue civil
338 For further discussion of triggering conditions, see section IV(C)(i) supra.
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only when absolutely necessary to against a rogue civil airliner only airliner only if ―no other method protect life. if no other method is available to is available for exercising protect life of persons on the military control.‖ surface.
Precaution in Using Force: Take Precaution in Using Force: Take Precaution in Using Force: Take all feasible precautions to avoid all feasible precautions to avoid all feasible precautions to avoid and in any event minimize the use the use of force. the use of force. of force
Precaution in Amount of Force: Precaution in Amount of Force: Precaution in Amount of Force: Take all feasible precautions to Take all feasible precautions to Take all feasible precautions to avoid and in any event minimize avoid and in any event minimize avoid and in any event minimize death or injury to innocent collateral damage. collateral damage. persons. (ECtHR only)
Proportionality of Force: Use only Proportionality of Force: Use Proportionality of Force: Use force that is strictly proportional to force against a rogue civil airliner force against a rogue civil the threat and the legitimate if the circumstances are airliner only if the circumstances objective to be attained. ―sufficiently grave to justify an are ―sufficiently grave to justify attack.‖ an attack.‖
N/A Proportionality of Effects: Where, Proportionality of Effects: regardless of the State‘s course of In any event, refrain from action both using and refraining carrying out an attack where the from using deadly force will expected collateral damage foreseeably result in casualties to would be excessive in relation to innocent persons (and the military advantage ―disablers‖), select a course of anticipated. action that is not expected to result in incidental loss of life to innocent persons, injury to innocent persons, damage to other interests rationally connected to the protection of human life or the combination thereof that is excessive in relation to the concrete and direct advantages, rationally connected to the protection of human life, that are anticipated.
Figure 1: Comparison of Legal Frameworks
While figure 1 compares the three legal frameworks in respect of what I have called the operationally-relevant norms of IHL and IHRL, it must also be understood that my proposal does not modify any of the other norms of the existing IHRL framework. Thus, any use of deadly force against a rogue civil airliner in a law enforcement context must also be authorized by law and subjected to an effective investigation.
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iv. Practical Application of the Norm
My project has been to advocate a modification of the existing IHRL framework governing State uses of force in a law enforcement context that, by allowing for an analysis of proportionality of effects, will provide State decision-makers with a satisfactory framework within which to consider the rogue civil airliner problem. The mere acceptance of a modified framework leaves unanswered a number of issues that will arise in most if not all real-world manifestations of the rogue civil airliner problem. While I will introduce some of these issues below, their potential variations are infinite and will depend upon the particular factual circumstances of each case. My point in introducing them is to not to resolve them; this will have to wait until actual situations with actual facts arise. The modified framework that I advocate provides a framework within which these issues can be raised and analyzed – a framework that would not otherwise exist.
The first set of issues that will arise in any actual ―real world‖ rogue civil airliner incident is that of dealing with factual uncertainties. For the purposes of my analysis, I have assumed a set of facts that provides decision-makers with as strong a certainty of the intentions of the person in effective control of the aircraft as seems possible. Indeed, for the purposes of my legal analysis, I have made the further assumption of the extreme case – that without State intervention, the person in effective control will, in fact, crash the aircraft into his target. Such a degree of certainty will be impossible to replicate in any ―real world‖ case. The existence of an additional analytical tool like the proportionality of effects test will not change that. Nor will it provide certainty as to the effects of a successful rogue civil airliner attack. Thus, while the likely success and incidental effects of a State attack against the rogue civil airliner can be divined with some degree of confidence (although not in respect of damage likely to be caused by the aircraft‘s wreckage on the surface), decision-makers will always be faced with considerable uncertainty as to the intention of the persons in effective control of the aircraft and of the effects if they are successful in perfecting their attack.
An additional set of issues will also be inherent in any rogue civil airliner situation – how
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to value the lives of the persons affected by it. For instance, are the lives of the innocent passengers and crew to be given a lower weight in the balancing exercise because they are expected to die in any event? Such an approach would be problematic from both a fundamental philosophical perspective (in that human lives are of inestimable value regardless of their quality or anticipated duration) and from a practical one (in the sense that if the persons in effective control intend only to perform a ―low pass‖ over the apparent target area, shooting the aircraft down will result in death and destruction that would have been unnecessary, while refraining from stopping an eventually successful attack could have the effect of undervaluing the persons on the surface). What number of immediate deaths and other right to life-connected effects on the surface will justify shooting down the aircraft?339 In the extreme case, does preventing a single death on the surface justify shooting down the aircraft (since those on board will die in either event)? What if that person is a particularly important individual, a political leader or a scientist possessing irreplaceable knowledge?340
The weighing of various interests, particularly the lives of the persons on each side of the rogue civil airliner problem is not simple: It is complex and requires that a large number of factors be assimilated and analyzed. This point brings us back to the practical factors of time and space that so concerned the German Constitutional Court. Even in a ―perfect‖ situation, such as the one described in our factual model, a decision will have to be made quickly and likely without all of the information that might be desirable. And a decision cannot be avoided. Given the consequences, a non-decision (or a non-timely decision) is, in effect, a decision. The elements and interests implicated in the rogue civil airliner problem, therefore, must be analyzed in as much detail as possible before the fact – before an actual incident occurs. Exercising the various operational response and
339 For another description of the situation, see Kumm, supra note 88 at 156, note 58. See also Hörnle, supra note 30 at 121, for a brief discussion of different approaches to valuing the lives of those aboard the aircraft and their apparent relationship to different legal traditions.
340 An example from an entirely different context may clarify this point. In an article that analyzes empirical evidence suggesting for every State execution of a convicted murderer, eighteen lives were saved, Professors Sunstein and Vermeule suggested that this ratio (where 18 lives could be saved by ending one) might represent a threshold at which execution might be not merely morally justified but morally required. Supra note 149 at 719 and 727. See also Blum, supra note 252 at 60-62.
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communications mechanisms that are available in order to identify and rectify shortcomings is also necessary to ensure that decision-makers, those who advise them and those who execute their decisions can focus their attention and efforts on the specific circumstances of each incident.341
The manner in which decision-makers address these issues is of some importance since, in the law enforcement context, any deaths caused by a State use of deadly force must be the subject of an effective investigation within the State.342 It seems reasonable to conclude that the requirement of an investigation will have a positive influence upon State decision-makers from the perspective of protecting human rights. A decision- maker ―who is aware that his actions will be monitored after the fact is likely to take care that he gives due consideration to all possibilities when reaching a decision.‖343 Since there are no objectively correct ways in which to respond to a particular rogue civil airliner situation, it is impossible for any investigation, tribunal or other State to judge the lawfulness of the ultimate result. The best that can be done is to investigate and judge the decision-making process.344
D. Possible Alternative Approaches
Before concluding, I consider briefly whether alternative approaches might provide a satisfactory framework for considering the rogue civil airliner problem in the purely law enforcement context. The two clearest of these possibilities both involve retaining, without changes, the existing law enforcement legal framework provided by the IHRL requirements for a deprivation of life to not be arbitrary and using different mechanisms to resolve the conflict of duties and claims to the right to life.
341 These sort of exercises do, in fact, appear to take place on a regular basis. See for example Craig Mellow, ―Don‘t Cross That Line‖ Air and Space Magazine (1 March 2010), online: Flight Today
342 See supra, section II(C)(i)(g).
343 Cohen, supra note 149 at 32.
344 Ibid. at 30-31.
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i. Political Question
The first possible approach is to accept the legal conflict between State IHRL duties in respect of the lives of the innocent persons on board the rogue civil airliner and the lives of the innocent persons on the surface as one that cannot be resolved within the law and to choose the course of action on the basis of political and moral factors alone. Assuming that there is no factual basis to claim that another framework of international law applies (i.e., there is no armed attack, there is no armed conflict), the State employing this first alternative option might defend its choice to the international community on a number of bases, each employing some component of legal reasoning. The State might simply argue that the conflict in duties indicates that the appropriate approach to resolving the problem is a political one; one with which the law should not concern itself.345 As a matter of law, the point seems to be easier to make in the context of a domestic legal system – some legal systems do, in fact, admit doctrines of ―political questions‖ or ―non- justiciability‖ in certain circumstances.346 As a matter of practicality, it seems less likely to be persuasive in the context of international law regulating the relations between sovereign States or in the context of obligations erga omnes.
Internationally, the State might assert that law enforcement is a matter that is essentially within domestic jurisdiction, a purely internal matter. This argument operates on a political level seeking to convince other States to forego claims of a legal nature. It may, indeed, prove to be effective, depending upon a number of factors, including for example, the number of foreign citizens affected by a particular rogue civil aircraft situation and its outcome. Outcomes which might be expected to be of greater concern to foreign States include those where the rogue civil airliner is shot down and contains a large number of foreign citizens (States may be more willing to accept deaths of their citizens that can be attributed to criminal acts of the persons effectively in control of the aircraft than those
345 See Milanovic, supra note 220, particularly at 28-34, and Beltran & Rodriguez, supra note 129 at 21-25. See also McCrudden, supra note 55 at 715.
346 Baker v. Carr (1962), 369 U.S. 186 at 210-211. Where a determination of constitutionally-protected human rights is a stake, see, cf., Operation Dismantle v. The Queen, [1985] 1 S.C.R 441 at paras. 51-68 (per Wilson J.) and 38 (per Dickson J.).
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that are attributable to the State shooting the aircraft down) or where the attack is successful but causes widespread environmental damage affecting other States (as might occur under my factual model, with prevailing westerly winds carrying radioactive fallout into the United States).347 Both general international law and the ICCPR impose particular obligations upon the State and acts or omissions of the State that breach those obligations entail State responsibility at international law.348 If claims of international responsibility are pursued by foreign States, a more nuanced response is required. ii. Circumstances Precluding International Responsibility
The second option would involve an assertion by the State of a circumstance, such as distress or necessity that would preclude its being held internationally responsible.349 The pleas of distress and necessity both present specific difficulties, however.
While the claim of distress, on its face, seems to require only that there be ―no other reasonable way … of saving … the lives of … persons entrusted to the … care‖ of the author of the otherwise internationally wrongful act,350 most cases where distress has been claimed have involved breaches of sovereignty by aircraft or ships due to threats to life caused by bad weather or mechanical failure.351 Moreover, the claim requires a ―special relationship‖ of responsibility between the author of the act and the persons in danger that appears to go beyond the general duty of State agents to protect all persons subject to the State‘s jurisdiction and thus does not extend to ―more general cases of
347 See, for instance, Trail Smelter Case (US v. Canada) (1938 and 1941) UNRIAA, Vol. III (Series No. 1949, V. 2) P1905 (Trail Smelter Case).
348 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries supra note 154, arts. 1-3. 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.
349 See, for instance the discussion of such possibilities in Huskisson, supra note 15 at 152-154 (distress) and 154-163 (necessity).
350 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, supra note 154, art 24.
351 Ibid., commentary at para. 2 but see also para. 5.
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emergencies, which are more a matter of necessity than distress.‖352
The possibility of a claim of necessity as a circumstance precluding wrongfulness is somewhat more intriguing. The claim of necessity acts as a justification or excuse for acts or omissions ―where there is an irreconcilable conflict between an essential interest [of the State] on the one hand and an [international] obligation … on the other,‖353 and the act or omission ―is the only way for the State to safeguard an essential interest against grave and imminent peril.‖354 The difficulty in making such a claim in the case of the rogue civil airliner problem is that it involves not simply a conflict between an essential interest and an international obligation but conflicts between two interests that might be seen to be essential to the State (the right to life of those persons on board the aircraft and the right to life of those on the surface) and between two international obligations (to ensure and respect the right to life of each group of individuals). Necessity provides the State with a justification for an act or omission that breaches an obligation in international law under circumstances where the requirements of international law are inconsistent with the social and political reality of a particular situation. It is not clear that it provides a justification for a choice between competing obligations.
In any event, two other arguments militate against a reliance on either distress or necessity in preference to adopting a proportionality of effects approach within the existing IHRL framework for the use of deadly force in the law enforcement context. The first argument is that the nature of the international obligation that is primarily at stake in the rogue civil airliner problem may either preclude a claim of necessity or render it superfluous. The wrongfulness of an act or omission that violates a peremptory norm of general international law – part of jus cogens – cannot be excused or justified under any circumstances.355 There are some who assert that the right to life (and the State‘s obligation to ensure and respect that right) form part of jus cogens, although the
352 Ibid., commentary at para. 7.
353 Ibid., art. 25, commentary at para. 2.
354 Ibid., art. 25(1)(a).
355 Ibid., art 26.
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particular substantive content of the jus cogens right and duty are not clear.356 This would appear to leave open three possibilities in the context of the rogue civil airliner problem. The first is that the act or omission breaches jus cogens, in which case neither distress nor necessity is available as a justification or excuse. The second is that the act or omission breaches neither jus cogens nor any content of the obligation to ensure and respect the right to life that is legally binding but resides outside of jus cogens, in which case there is no need to resort to a justification or excuse. The third is the only possibility in which a plea of necessity as a circumstance precluding responsibility is available and arises where there is no breach of jus cogens but a breach of an international obligation nonetheless. Thus while distress and necessity may remain relevant to an analysis of the situation, they may play less of a role than might have been expected.
The second, and more important argument is that invoking circumstances precluding wrongfulness still requires legal analysis of the situation. Indeed, both distress and necessity can both only be invoked where there exists a proportionality of effects. A claim of distress cannot be made where the otherwise wrongful act or omission is ―likely to create a comparable or greater peril‖ than the situation of distress to which it responds.357 Indeed, the ILC‘s commentary to its Draft Articles on Responsibility of States for Internationally Wrongful Acts argues that: [d]istress can only preclude wrongfulness where the interests sought to be protected … clearly outweigh the other interests at stake in the circumstances. If the conduct sought to be excused endangers more lives than it may save or is otherwise likely to create a greater peril it will not be covered by the plea of distress.358
356 See Ramcharan, supra note 69 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 UN Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), U.N. 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.
357 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, supra note 154, art 24(2)(b).
358 Ibid., art. 24, commentary at para. 10.
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Similarly, the requirement that an act or omission in respect of which necessity is invoked ―not seriously impair an essential interest of the State or States towards which the obligation exists, or the international community as a whole,‖359 is said to require that: the interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests, whether these are individual or collective.360
The point to be made here is that the sort of legal analysis that must be carried out in contemplation of any claim of distress or necessity in respect of a rogue civil airliner in the law enforcement context will strongly resemble the sort of analysis that will be required under the IHRL-based approach that is being proposed. Even if distress or necessity is claimed, international obligations can only be breached to the extent required by the circumstances, which implies conditions additional to those that the act or omission be necessary and proportional, such as the taking of all feasible precautions to avoid and in any event minimize wrongful acts and omissions and their effects. Applied to its fullest extent, pleading a circumstance precluding wrongfulness would seem to require that the State carry out in full the legal analysis that is here advocated.
The foregoing discussion is not an outright rejection of pleas of distress or necessity as an alternative approach to addressing the legal dimension of the rogue civil airliner problem in a law enforcement context but, rather, a recognition that adopting this approach may have only minimal impact (if any) on the sort of legal analysis that will be required in assessing a State‘s operational response to a rogue civil airliner situation. There is one important legal distinction between the approaches, however. Under a distress/necessity approach, there is no substantive change to the existing IHRL framework governing the use of deadly force by the State in a law enforcement context. By its acts or omissions, the State breaches an international law obligation to ensure and respect the right of innocent persons to not be arbitrarily deprived of life but it excuses or justifies its acts or omissions through a claim of distress or necessity. Thus, the idealism of IHRL is (apparently) preserved, although with a recognition that States may attempt to escape
359 Ibid., art. 25(1)(b).
360 Ibid., art 25, commentary at para. 17.
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responsibility for their breaches of its idealistic, absolutist values.
Under my proposed approach, there is a substantive change to IHRL, in that there is an expansion of what constitutes a non-arbitrary deprivation of life, although under very limited, proscribed circumstances. This approach to the rogue civil airliner problem is more realistic and respectful of the rule of law. The rogue civil airliner problem is one of a small set of realistically foreseeable circumstances under which the State cannot abdicate its responsibilities and accept an irreconcilable conflict in its international law duties. Given that the possibility of a rogue civil airliner is one that has now been recognized (and, indeed, there is sufficient information available to support a presumption that, at the very least, some States will not, in practice, reject out-of-hand the possibility of shooting down a rogue civil airliner), respect for the rule of law favours the development of a principled yet effective legal analytical framework within substantive IHRL rather than a standing intention to breach an international obligation while invoking a circumstance precluding responsibility.361
Some would surely argue that IHRL must retain an idealistic, pacifist approach to individual rights and resist any acceptance of deaths of innocent persons that are incidental to State uses of force.362 However, if IHRL norms are to be universally respected and effectively implemented, there must be some degree of practicality to them; they must respond to and reflect social reality.363 Otherwise, they risk irrelevance. Thus, ―it might be better to have some rules which are effective than rules which satisfy our moral intuitions but are honoured only by their breach.‖364
361 See Victor V. Ramraj, ―Between Idealism and Pragmatism: Legal and Political Constraints on State Power in Times of Crisis‖ in Goold & Lazarus, eds., supra note 187, 185 at 189. The idea is one introduced by Professor David Dyzenhaus.
362 Schabas, supra note 220.
363 Lon L. Fuller, ―Human Interaction and the Law‖ (1969) 14 Am. J. Juris. 1 at 27.
364 Milanovic, supra note 220 at 31. See also, Bielefeldt, supra note 46 at 8-9. Professor Kretzmer 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.‖ Supra, note 44 at 27.
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E. Conclusion
The addition of a proportionality of effects analysis to the existing IHRL framework governing State uses of deadly force in a law enforcement context provides a modified framework within which to consider the rogue civil airliner problem that fits all of the requirements to be satisfactory. It is principled, effective and in line with the rule of law and with human rights.
The modified framework is principled in that it accounts for the reality that, under the circumstances where the proportionality of effects norm is intended to apply, any State course of action will result in the deaths of innocent persons and provides a legal mechanism that can contribute effectively to the State‘s decision-making process. It is impossible under the circumstances to maintain an idealistic ―purity‖ in IHRL and ignore the conflicting rights claims and duties that arise from categorical approaches. Such an approach is naïve, irrational and ultimately unprincipled since it deprives the decision- maker of any legal analytical framework and results in the choice of a course of action that is based purely on extra-legal factors.
The modified use of force approach is effective in that it accounts for the reality that some States are prepared, in appropriate circumstances, to consider shooting down a rogue civilian airliner, yet provides them with a rational, legal framework within which to make decisions. The ―balancing‖ approach that I propose is one that is accepted by IHL, constitutional human rights theory and moral theory. It has proven to provide an effective analytical framework within each of these fields and brings with it a rich body of theoretical scholarship and practical application that can assist State decision-makers.
The proposed framework is also consistent with the rule of law. By providing a legal framework for decision-making it ensures that State decision-making is based upon something more than extra-legal factors and provides protection against decisions that are arbitrary and capricious. The proportionality of effects test itself is flexible, allowing for adjustment of the weight assigned to particular interests under particular circumstances. As such, it is able to account for different State approaches to such individual interests as human dignity and the right to life. The addition of a proportionality of effects analysis
120
under the limited circumstances proposed in no way modifies the procedural protections that already exist under the IHRL framework. Any course of action in response to the rogue civil airliner problem must be authorized by law and any use of force that results in a deprivation of life must be the subject of an effective investigation.
Finally, the addition of a proportionality of effects analysis to the existing framework is consistent with human rights. This is, to some extent, a matter of definition. It is inherent in the rogue civil airliner problem that lives will be lost. An individual is only deprived of a protected right, however, if he is deprived of life arbitrarily. The modification of the existing IHRL framework governing the use of deadly force modifies, too, the conditions under which a deprivation of life is permitted by IHRL as not arbitrary. This would seem to be entirely consistent with the apparent intention of the drafters of the ICCPR when they decided to adopt the more flexible language of ―arbitrary‖ in describing the limits of the right to life.365 While it is important to not weaken IHRL‘s strong rights protections in a manner that would lead to them becoming less relevant and/or less protective under other circumstances, that concern can be addressed by strictly limiting the circumstances under which the proportionality of effects analysis is admissible.
The modified framework is consistent with human rights on a broader level as well. By considering the rights of all individuals implicated in the problem, a balancing approach respects and values their lives in a manner that a less principled, more arbitrary decision- making process would not. It at least does them the dignity of considering whether there exists any benefit that can justify their (foreseeable) deaths. Moreover, where it is accepted as inevitable that some persons will be deprived of life, the addition of a proportionality of effects analysis provides more ―granularity‖ to the decision-making process, allowing a more nuanced assessment and filling the analytical gap created by the possibility that even though all of the other use of force norms are complied with, the deleterious effects of a course of action will still be excessive in comparison with the salutary effects.
365 See supra note 78 and associated discussion.
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The proposed test should not be seen as being simple window dressing to justify a decision to shoot down a rogue civil airliner. That is not its intent. The intent behind the proposal is to provide a tool for the legal analysis of the problem – one which neither provides conflicting results depending upon the group of individuals to which it is applied nor predetermines the outcome of the political, moral and legal dilemma facing the State. Nor should the proposal be seen as an attempt to weaken human rights protections in a law enforcement context but, rather, as advocating limited modification to a generally satisfactory legal framework that will bring increased coherence to that framework‘s approach to a particular set of factual circumstances.
The proportionality of effects norm that I propose is not perfect, but there is no perfect solution (legal or otherwise) to the rogue civil airliner problem. The addition of the norm to the existing IHRL framework governing State uses of deadly force in a law enforcement context does, however, provide decision-makers (and their legal advisors) with a more flexible, nuanced analytical framework than would otherwise be available – one that allows a possible basis for resolution of what would otherwise be irreconcilable conflicts in the State‘s duties to respect and ensure the right to life arising form irreconcilable claims to that right. To refuse to consider such a balancing approach – one that incorporates an analysis of proportionality of effects – is to deprive IHRL of a useful tool, one that is ultimately protective of the sanctity of human life.
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