Editor’s note: This article is the second in a series that Just Security is publishing on a interpretive statement issued by the UN Human Rights Committee–General Comment 36–concerning the right to life under the International Covenant on Civil and Political Rights (ICCPR). Be sure to read other contributions in the series, including an in-depth Q&A with our co-editor-in-chief Ryan Goodman and two members of the UN Committee, Christof Heyns and the Committee’s rapporteur for the General Comment, Yuval Shany.
The much-needed updated commentary by the Human Rights Committee on the right to life in General Comment No. 36 helpfully addresses a range of issues which have been of recent legal and political interest, such as the extra-territorial application of the International Covenant on Civil and Political Rights (ICCPR) and the relationship between international humanitarian law (IHL) and international human rights law. Targeted killing is a deprivation of life that brings these issues into focus. Although there is no definition of the term as a matter of international law, it has been described by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions as “the intentional, premeditated and deliberate use of lethal force, by State or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator.” Using targeted killing as a prism for analysis, the Comment emerges as a generally clear and comprehensive framework.
Although there are express references to targeted killings in the Comment, it is also addressed indirectly in a number of passages of more general application. Five key considerations to note emerge from a close examination of the Comment.
First, where a State conducts targeted killing outside its territory, such killing will come within the scope of application of Article 6 where the victim was subject to the State’s jurisdiction, i.e. where the victim was a person “over whose enjoyment of the right to life [the State] exercises power or effective control” or a person “located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner” (para 63). It follows that it is highly likely that targeted killing will bring the victim within the scope of application of the targeting State’s Article 6 obligations.
Second, targeted killing – like any deprivation of life – will violate Article 6 where, even if it is otherwise conducted in accordance with international law or domestic law, it is nevertheless arbitrary. Arbitrariness includes elements of inappropriateness, injustice, lack of predictability, due process of law, reasonableness, necessity and proportionality (paras 10; 12; 64). This means that, even where there is a legal basis for a specific targeted killing, whether the killing is arbitrary, and therefore contrary to Article 6, is highly fact sensitive. It must be remembered that the legal basis itself must be precise: “the law must strictly control and limit the circumstances in which a person may be deprived of his life by [State] authorities” (para 19).
Third, States parties must take appropriate measures to protect individuals against deprivation of life by other States operating within their territory or in other areas subject to their jurisdiction – especially where the individual is particularly vulnerable because of a specific threat, for example prominent public figures (paras 22-23). A targeted killing by one State in the territory or within the jurisdiction of another State may, therefore, give rise to (differing) Article 6 liability for both States.
Fourth, the Comment provides that “exceptional measures leading to deprivations of life” must be “accompanied by effective institutional safeguards” (para 10). These safeguards are described in relation to law enforcement operations as including mandatory reporting, review and investigation, as well as procedures to ensure that operations are adequately planned so as to minimize risk of life (para 13). There should also be processes for investigation, prosecution, punishment, and the provision of reparations (paras 19; 27).
These safeguards are clearly also necessary in the case of targeted killing. States parties “need” to take “appropriate measures to establish the truth relating to the events leading to the deprivation of life, including the reasons and legal basis for targeting certain individuals and the procedures employed by State forces before, during and after the time in which the deprivation occurred” (para 28). They “must” also investigate alleged or suspected violations of Article 6 in situations of armed conflict in accordance with the relevant international standards (para 64). The Comment expressly endorses (at both paras 27 and 64) the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which addresses a range of scenarios, including targeting during the conduct of hostilities, in considering when the duty to investigate is triggered (paras 15-21). In relation to targeting during the conduct of hostilities, the Minnesota Protocol requires, at the very least, a “post-operation assessment … to establish the facts” and full investigations in certain types of cases, for example where there is evidence of unlawful conduct. These passages in the Comment and the Minnesota Protocol illustrate the spectrum of circumstances in which the duty to investigate is triggered, including during the conduct of hostilities. The reference to armed conflict in the following sentence therefore needs to be read alongside those other passages: “States parties also have a particular duty to investigate allegations of violations of article 6 whenever State authorities have used or appear to have used firearms or other potentially lethal force outside the immediate context of an armed conflict” (para 29).
Finally, information about the investigation, and its findings, should be made public “subject to absolutely necessary redactions justified by a compelling need to protect the public interest or the privacy and other legal rights of directly affected individuals” (para 28). Applied to targeting, this may mean (very) limited public disclosure in light of prevailing security or intelligence considerations, but “in general” disclosure should be made of the following: (a) the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including the legal basis for specific attacks; (b) the process of identification of military targets and combatants or persons taking a direct part in hostilities; (c) the circumstances in which relevant means and methods of warfare have been used, and (d) whether less harmful alternatives were considered. Of course, the limits on public disclosure do not mean that States parties are constrained from conducting – as they must (see above) – appropriate investigations of such incidents.