USE OF FORCE DURING ARMED CONFLICT This chapter of the Handbook collects the observations and recommendations of the UN Special Rapporteur with respect to violations of the right to life during international and non- international armed conflict. The Handbook especially focuses on the obligations of States and armed non-state actors vis-à-vis civilians, the methods and means of warfare, and the complementary relationship between international human rights and humanitarian law. A. MANDATE OF THE SPECIAL RAPPORTEUR IN ARMED CONFLICTS .................. 2 B. FACTUAL BACKGROUND ON KILLINGS BY STATE AND NON-STATE ACTORS IN AREAS OF ARMED CONFLICT VISITED BY PROFESSOR ALSTON .................... 15 C. RELATIONSHIP BETWEEN HUMAN RIGHTS AND HUMANITARIAN LAW....... 18 D. INTERNATIONAL HUMANITARIA LAW AND KILLINGS BY ARMED OPPOSITION GROUPS ............................................................................................................ 26 E. EXTRATERRITORIAL APPLICABILITY OF HUMAN RIGHTS LAW .................... 30 F. HUMANITARIAN LAW OBLIGATIONS AND RECIPROCITY .................................. 31 G. CEASEFIRE AGREEMENTS AND HUMAN RIGHTS AND HUMANITARIAN LAW ....................................................................................................................................................... 33 H. INTERNATIONAL ACTORS AND MECHANISMS OF ACCOUNTABILITY .......... 37 I. METHODS AND MEANS OF WARFARE ......................................................................... 44 Mercy killings .......................................................................................................................... 44 Cluster bombs.......................................................................................................................... 47 Principles of distinction and proportionality; obligation to take precautions .................. 49 Drone” killings ........................................................................................................................ 55 Airstrikes ................................................................................................................................. 60 Raids ......................................................................................................................................... 64 Use of perfidy and effects on civilians ................................................................................... 67 Suicide attacks ......................................................................................................................... 67 Human shields ......................................................................................................................... 68 Killings of persons hors de combat ......................................................................................... 70 Urban counter-insurgency ..................................................................................................... 71 J. HUMAN RIGHTS BASED SECURITY SECTOR REFORM .......................................... 75 K. RECRUITMENT INTO THE MILITARY ........................................................................ 79 L. INTERNATIONAL HUMANITARIAN LAW TRAINING FOR MILITARY OFFICIALS ................................................................................................................................. 82 M. RESPONSIBILITY OF STATES IN JOINT-MILITARY OPERATIONS ................... 86 N. COMMUNICATIONS WITH ARMED NON-STATE ACTORS .................................... 89 O. PRIVATE CONTRACTOR ISSUES ................................................................................... 91 P. INTELLIGENCE AGENCIES ............................................................................................. 96 Q. TARGETED KILLINGS .................................................................................................... 101 Targeted killing of “terrorists” ............................................................................................ 101 Accountability and transparency in targeting operations ................................................ 115 A. MANDATE OF THE SPECIAL RAPPORTEUR IN THE CONTEXT OF ARMED CONFLICT Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/2005/7, 22 December 2004, ¶¶ 5-11, 45): 5. The principal activities foreseen under the Special Rapporteur’s mandate are to collect information from all concerned, to respond effectively to reliable information, to undertake country visits, to follow up on communications and country visits, to seek the views and comments of Governments, and to reflect each of those factors in his overall report. 6. The terms of reference of this mandate are not best understood through efforts to define individually the terms “extrajudicial”, “summary” or “arbitrary”, or to seek to categorize any given incident accordingly. These terms had important roles to play in the historical evolution of the mandate but today they tell us relatively little about the real nature of the issues. The broad coverage of the mandate as it now exists reflects the very real needs perceived over time by the Commission to be able to respond to a range of contexts in which killings have taken place in circumstances which contravene international law and which the Commission has determined require a response. Thus, the most productive focus is on the mandate itself, as it has evolved over the years through the various resolutions of the General Assembly and the Commission. 7. On the basis of the agreed legal framework of the mandate, as reflected in the relevant resolutions of the Commission on Human Rights and the General Assembly, the Special Rapporteur’s terms of reference include the following: (a) To examine situations of extrajudicial, summary or arbitrary executions and to submit findings, together with conclusions and recommendations, to the Commission; (b) To respond effectively to information, including situations when an extrajudicial, summary or arbitrary execution is imminent or seriously threatened, or has occurred; (c) To engage in a constructive dialogue with Governments, and to follow up on recommendations made after country visits; (d) To pay special attention to extrajudicial, summary or arbitrary executions of women and to ensure that a gender perspective is reflected in the work under the mandate; (e) To pay special attention to extrajudicial, summary or arbitrary executions of children, and of persons belonging to minorities; (f) To pay special attention to extrajudicial, summary or arbitrary executions where the victims are individuals carrying out peaceful activities in defence of human rights, including those participating in demonstrations and other peaceful public manifestations; (g) To monitor the implementation of international standards, including safeguards and restrictions, relating to the imposition of capital punishment, bearing in mind the comments 2 made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto. 8. The Special Rapporteur follows the guidelines developed by his predecessors, which were 1 restated most recently in the report to the Commission in 2002 (E/CN.4/2002/74, para. 8). 1 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/2002/74, 9 January 2002, ¶ 8: 8. During the reporting period, the Special Rapporteur acted in the following situations: (a) Genocide; (b) Violations of the right to life during armed conflict, especially of the civilian population and other non- combatants, contrary to international humanitarian law; (c) Deaths due to attacks or killings by security forces of the State, or by paramilitary groups, death squads or other private forces cooperating with or tolerated by one or several States; (d) Deaths due to the use of force by law enforcement officials or persons acting in direct or indirect compliance with the State, when the use of force is inconsistent with the criteria of absolute necessity and proportionality; (e) Deaths in custody due to torture, neglect or use of force, or life-threatening conditions of detention; (f) Death threats and fear of imminent extrajudicial executions by State officials, paramilitary groups, private individuals or groups cooperating with or tolerated by the Government, as well as by unidentified persons who may be linked to the categories mentioned above; (g) Expulsion, refoulement or return of persons to a country or a place where their lives are in danger, as well as the prevention of persons seeking asylum from leaving a country where their lives are in danger through the closure of national borders; (h) Deaths due to acts of omission on the part of the authorities, including mob killings. The Special Rapporteur may take action if the State fails to take positive measures of a preventive and protective nature necessary to ensure the right to life of any person under its jurisdiction; (i) Breach of the obligation to investigate alleged violations of the right to life and to bring those responsible to justice; (j) Breach of the additional obligation to provide adequate compensation to victims of violations of the right to life, and failure on the part of Governments to recognize compensation as an obligation; (k) Violations of the right to life in connection with the death penalty. The Special Rapporteur intervenes where capital punishment is imposed in violation