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Pdf, Accessed 17 December 2018 INVESTIGATING THE RELATIONSHIP BETWEEN TARGETED KILLING, AMERICAN EXCEPTIONALISM, AND KRIEGSRAISON: REPERCUSSIONS FOR INTERNATIONAL LAW THESIS SUBMITTED TO THE, FACULTY OF HUMANITIES AND SOCIAL SCIENCE, SCHOOL OF LAW AND GOVERNMENT, DUBLIN CITY UNIVERSITY IN FULFILLMENT OF THE DEGREE OF DOCTOR OF PHILOSOPHY BY CATHERINE CONNOLLY B.A., M.A. SUPERVISOR: DR JAMES GALLEN July 2019 1 I hereby certify that this material, which I now submit for assessment on the programme of study leading to the award of Doctor of Philosophy is entirely my own work, that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge breach any law of copyright, and has not been taken from the work of others save and to the extent that such work has been cited and acknowledged within the text of my work. Signed: Catherine Connolly Candidate No: 57412029 Date: 18 December 2018 2 Table of Contents Abstract ............................................................................................................................6 Dedication ........................................................................................................................7 Acknowledgments .............................................................................................................8 Introduction ................................................................................................................... 11 Why is this thesis relevant and necessary? ............................................................................ 23 Methodology ......................................................................................................................... 20 Chapter One: Military Necessity, Kriegsraison and Self-Defence ..................................... 25 Military necessity .................................................................................................................. 26 The doctrine of Kriegsraison ........................................................................................................................27 The Lieber Code ............................................................................................................................................34 Law of Armed Conflict or International Humanitarian Law? Contrasting conceptions of the rules of war ........................................................................................................................... 36 Military necessity in state practice ................................................................................................................38 Self-Preservation and Self-Defence........................................................................................ 41 Self-defence ...................................................................................................................................................45 Support for a broad interpretation of the right of self-defence......................................................................46 Anticipatory self-defence ..............................................................................................................................47 Preventive self-defence .................................................................................................................................50 State support for anticipatory and preventive self-defence ...........................................................................51 The importance of imminence .......................................................................................................................54 Conclusion ............................................................................................................................ 59 Chapter Two: Targeted Killing and the Use of Armed Drones ......................................... 61 Personality and signature strikes .......................................................................................... 63 The cost, ‘humanity’, and precision of armed drones ............................................................ 68 Show me the money: the cost appeal of armed drones .................................................................................69 Drones: humane warfare? ..............................................................................................................................72 The fallacy of ‘precision’ ..............................................................................................................................77 Accidents and responsibility .................................................................................................. 84 ‘Accidental’ civilian deaths ................................................................................................... 86 The importance of intelligence .............................................................................................. 88 Conclusion ............................................................................................................................ 91 Chapter Three: Situating the Targeted Killing Programme in International Law, and Targeted Killing Under the Rules of International Humanitarian Law ............................ 93 Why is the categorisation of conflict important for targeted killing? ..................................... 96 International armed conflict and non-international armed conflict ....................................... 97 International Armed Conflict (IAC) ............................................................................................................101 3 Non-International Armed Conflict (NIAC) .................................................................................................104 Common Article 3 armed conflicts .............................................................................................................106 Additional Protocol II ..................................................................................................................................108 Categorising the U.S. conflict with al-Qaeda and affiliated forces ....................................... 110 A non-international armed conflict?............................................................................................................110 Targeting in Non-International Armed Conflicts ................................................................ 117 Organised armed groups and Continuous Combat Function (CCF) ...........................................................118 Direct Participation in Hostilities and Membership of Non-State Armed Groups .....................................120 The Continuous Combat Function standard in U.S. courts and administrative interpretation....................124 Civilians and Direct Participation in Hostilities ..........................................................................................127 Proportionality and distinction ....................................................................................................................130 The targeted killing programme and targeting: personality and signature strikes .............. 133 Personality strikes........................................................................................................................................135 Signature strikes ..........................................................................................................................................135 Assessing the legality of signatures.............................................................................................................137 Conclusion .......................................................................................................................... 141 Chapter Four: International Human Rights Law: Extraterritoriality, Armed Conflict, and the Targeted Killing Programme ................................................................................... 143 Does international human rights law apply extraterritorially? The U.S. position ................ 144 Extraterritorial jurisdiction ..........................................................................................................................148 Extraterritorial jurisdiction: what does jurisprudence say? .........................................................................149 Extraterritorial jurisdiction: the territorial model ........................................................................................150 The individual model of jurisdiction ...........................................................................................................153 A third model of extraterritorial jurisdiction? .............................................................................................158 The application of international human rights law in armed conflict .................................. 162 International human rights law and international humanitarian law: Interpreting ‘lex specialis’...............163 The issues and intricacies of concurrent applicability: applying the right to life in armed conflict situations .....................................................................................................................................................................165 Targeted killing and international human rights law .......................................................... 171 Conclusion .........................................................................................................................
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