Targeted killings of ‘suspected’ terrorists carried out by US drones – an analysis of the applicability of international humanitarian law An overview and analysis of the practice of drone targeted killings and the complex legal questions this practice is raising with regards to international humanitarian law and its applicability to the “war on terror”. Candidate number: 634 Submission deadline: 25 April 2017 at 12:00 Number of words: 16 414 Table of contents LIST OF ABBREVIATIONS .................................................................................................. 1 1 INTRODUCTION .............................................................................................................. 2 1.1 Statement of the problem .................................................................................................. 2 1.2 The focus of the thesis ....................................................................................................... 3 1.3 Method, sources and research questions ........................................................................... 4 1.4 Definition of targeted killings ........................................................................................... 5 1.5 The “war on terror” – overview of the situation in Pakistan and Yemen ......................... 7 1.6 Outline ............................................................................................................................... 9 2 DEFINING TERRORISM IN INTERNATIONAL LAW ........................................... 10 2.1 ‘Terrorism’ as a heated and evocative term throughout history ...................................... 10 2.1.1 The impact of 11 September 2001 ..................................................................... 11 2.1.2 Lack of definition leads to a failure to discriminate .......................................... 12 2.2 Attempts to define terrorism in international treaties ...................................................... 12 3 INTERNATIONAL LEGAL FRAMEWORK .............................................................. 15 3.1 Two legal frameworks ..................................................................................................... 15 3.2 International humanitarian law and the global war on terror .......................................... 15 4 IS THE “WAR ON TERROR” AN ARMED CONFLICT? ........................................ 17 4.1 Can the “war on terror” be regarded as an IAC? ............................................................. 17 4.1.1 Common article 2 of the Geneva Conventions .................................................. 17 4.1.2 Can an armed attack directed at a terrorists group in a foreign State result in an IAC? .................................................................................................................. 19 4.1.3 Is there a third classification such as “unlawful combatants”? .......................... 20 4.1.4 Conclusion ......................................................................................................... 24 4.2 Can the “war on terror” be regarded as an NIAC? .......................................................... 25 4.3 IHL’s inadequacy ............................................................................................................ 30 5 HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW ........ 32 5.1 Parallel applicability ........................................................................................................ 32 5.2 The non-derogable right not to be arbitrarily deprived of life ........................................ 34 6 CONCLUSION ................................................................................................................. 38 TABLE OF REFERENCES .................................................................................................. 40 i ii List of abbreviations AP I Protocol I of June 1977, Additional to the Geneva Conventions of 12 August 1949 AP II Protocol II of June 1977, Additional to the Geneva Conventions of 12 August 1949 ACHR American Convention on Human Rights of 22 November 1969 ECHR European Convention on Human Rights of 4 November 1950 GC I Geneva Convention I of 1949 for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field GC II Geneva Convention II of 1949 for the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea GC III Geneva Convention III of 1949 relative to the Treatment of Prisoners of War GC IV Geneva Convention IV of 1949 relative to the Protection of Civilian Persons in Time of War HagueReg Hague Regulation of 18 October 1907 regarding the Laws and Customs of War and Land IAC International Armed Conflict ICCPR International Covenant on Civil and Political Rights of 16 December 1966 ICC International Criminal Court ICJ International Court of Justice ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law IHRL International Human Rights Law NIAC Non-International Armed Conflict POW Prisoner of War UAV Unmanned Aerial Vehicle UDHR Universal Declaration of Human Rights of 1948 UNBFF United Nations’ Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990 UN Doc. United Nations Documents UNHRC Human Rights Committee 1 1 Introduction 1.1 Statement of the problem Unmanned drones – or unmanned aerial vehicles (UAV) - are increasingly being employed to conduct targeted killings of ‘suspected’ terrorists in the context of the “war on terror”.1 This raises a lot of questions, both of moral, ethical, political and legal character. This thesis will focus on the legal concerns surrounding these issues. The questions and concerns are intricate and complex. What is targeted killings and how do they comply with international humanitar- ian law, especially in regards to the “war on terror”? Can the ”war on terror” be categorized as an armed conflict? Which legal requirements need to be fulfilled for an armed conflict to be determined? How does targeting on the basis of ‘suspicion’ comply with international law and human rights law? How should certain fundamental principles of international humanitarian law be interpreted and applied? These are some of the question that will be discussed below. The use of drone strikes as a method to target and kill has sparked international criticism from legal experts.2 However, it seems that the international community has been hesitant to inter- fere with the practice. One of the reasons for this might be the legal controversy surrounding the use of drones and its legality.3 There is a pressing need for the international community to reach an international consensus on certain key legal notions within international humanitari- an law with regards to the use of lethal force on ‘alleged terrorists’ in the “war on terror” and whether the “war on terror” falls within the material scope of international humanitarian law. The legality of drone targeted killings, and whether IHL is the applicable law to determine the lawfulness, is an intensely debated issue. This master thesis focuses largely on the four Geneva Conventions of 1949 and the two addi- tional protocols of 1977.4 This is the law that applies during wartime, also known as interna- tional humanitarian law (IHL). The most important question will therefore be whether IHL is applicable to the “war on terror” and thus whether IHL can be applied when determining the legality of drone targeted killings. For IHL to be applicable the “war on terror” has to consti- tute an “armed conflict” under IHL. When analysing whether the “war on terror” falls within the scope of IHL the thesis won’t necessarily focus on the practise of one specific State. How- 1 See as an example the situation in Yemen in chapter 1.5. 2 David Whetham (2017) p. 95. 3 Craig Martin (2017) p. 38. 4 The US and Pakistan have not ratified the additional protocols and are therefore not formally bound. However, some provisions are the result of customary law and are considered fundamental humanitarian principles. Customary law and fundamental principles of humanitarian law are binding for the US and Pakistan. 2 ever, as the title implies, there will be partial focus on the US as a State actor. Drone targeted killings carried out in Pakistan and Yemen will be used to illustrate the current practice. It is, however, important to clarify that the use of drones is not limited to the US. That being said, it is undoubtedly their practice of using drones to kill ‘suspected’ terrorists that has attracted the most attention from the international community. The term ‘drones’ will in this thesis be understood as remote-controlled unmanned aerial ve- hicles equipped with artilleries and capable of targeting individuals and execute killings. They are a quite new appearance in armed conflicts and have to some extent replaced piloted bomber aircrafts. They are changing the way hostilities are being fought. Initially they were planned for intelligence gathering and investigations.5 Drones used for these purposes also raise legal questions. However, in this thesis the focus will be on the use of ‘killer’ drones. Sadly as their use has increased, so has their misuse. It has been reported that the use of drones for targeted killings in some incidents has led to high civilian casualties and illegiti- mate killings (more about this in chapter 1.5). 1.2 The focus of the thesis This thesis will concentrate on IHL’s applicability and the lawfulness