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Rethinking the Permissive Function of Military Necessity in Internal Non-International Armed Conflict

  • Kosuke Onishi (a1)
Abstract

This article advocates limiting the permissive impact of military necessity on the right to life. It has been argued that military necessity justifies deviations from international human rights law (IHRL) because this body of law is inadequate to deal with the necessities arising out of armed conflict. The article argues that while this rationale is convincing, it should not mean that conduct that is lawful under humanitarian law is necessarily also lawful under human rights law. The degree of force that may be used under international humanitarian law (IHL) is often superfluous. In some instances such violence is tempered by the jus ad bellum, but this body of law does not apply in internal non-international armed conflict (NIAC). The article concludes by exploring the potential for IHRL to play a role in tempering superfluous violence in NIAC that is similar to that which jus ad bellum plays in international conflict.

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1 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226 (Nuclear Weapons), [25].

2 ibid.

3 United Nations (UN) Human Rights Committee (HRC), Draft General Comment No 36 – Article 6: Right to Life (19 October–6 November 2015), UN Doc CCPR/C/GC/R.36/Rev.2, para 63 (‘Uses of lethal force authorized and regulated by and complying with international humanitarian law are, in principle, not arbitrary’); Case of Juan Carlos Abella v Argentina (1997) Inter-Am Ct HR, Judgment, 18 November 1997, OEA/Ser L/V/II.98, [176]–[188].

4 In this article the terms ‘quasi-combatant’ and ‘fighter’ will be used interchangeably to denote de facto combatants in NIAC: see Section 2.2.

5 von Groeben, Constantin, ‘The Conflict in Colombia and the Relationship between Humanitarian Law and Human Rights Law in Practice: Analysis of the New Operational Law of the Colombian Armed Forces’ (2011) 16 Journal of Conflict and Security Law 141.

6 Sassòli, Marco and Olson, Laura M, ‘The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 603.

7 ibid 613–14; Prud'homme, Nancie, ‘Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?’ (2007) 40 Israel Law Review 356.

8 See, albeit in relation to arbitrary detention, Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB), [291].

9 Hill-Cawthorne, Lawrence, ‘The Role of Necessity in International Humanitarian and Human Rights Law’ (2014) 47 Israel Law Review 225, 232–34.

10 Ohlin, Jens David and May, Larry, Necessity in International Law (Oxford University Press 2016) 3.

11 Hill-Cawthorne (n 9) 232–34.

12 ibid 242–45.

13 Sloane, Robert D, ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’ (2009) 34 The Yale Journal of International Law 48.

14 Schabas, William A, ‘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) 40 Israel Law Review 592, 607, 610.

15 HRC, Draft General Comment No 36 (n 3) para 67.

16 Dinstein, Yoram, ‘The Principle of Proportionality’ in Larsen, Kjetil Mujezinović, Cooper, Camilla Guldahl and Nystuen, Gro (eds), Searching for a ‘Principle of Humanity’ in International Humanitarian Law (Cambridge University Press 2013) 7274.

17 ibid.

18 ibid.

19 See, eg, United Kingdom, ‘Joint Service Manual of the Law of Armed Conflict’, Joint Service Publication 383, 2004, para 2.2.

20 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint Petersburg, 1868, 138 CTS (Saint Petersburg Declaration), Preamble.

21 Blum, Gabriella, ‘The Fog of Victory’ (2013) 24 The European Journal of International Law 391, 395.

22 Malantowicz, Artur, ‘Civil War in Syria and the “New Wars” Debate’ (2013) 5 Amsterdam Law Forum 52: (‘wars were predominantly fought due to geopolitical and ideological reasoning and their ultimate goal was to defeat an enemy in the battlefield, gain its territory, and thereby strengthen the state's power’).

23 Hayashi, Nobuo, ‘Military Necessity as Normative Indifference’ (2013) 44 Georgetown Journal of International Law 675, 683–85.

24 United States Military Tribunal at Nuremberg, The Krupp Trial, Case No 58, 17 November 1947–30 June 1948 (1949) Law Reports of Trials of War Criminals, Vol X, 138–39.

25 Another is the principle of proportionality. While this principle is also problematic in contemporary armed conflicts, a discussion of proportionality is omitted from this article because it suffers from a problem that is rather distinct from the forthcoming discussion. As will be discussed below, distinction may permit superfluous violence in armed conflict. The problem with proportionality stems from its malleability and, consequently, its susceptibility being influenced by factors that may not be strictly relevant to military victory: Keiler, Jonathan F, ‘The End of Proportionality’ (2009) 39 Strategic Studies Institute 53.

26 Oeter, Stefan, ‘Collateral Damages – Military Necessity and the Right to Life’ in Tomuschat, Christian, Lagrange, Evelyne and Oeter, Stefan (eds), The Right to Life (Martinus Nijhoff 2010) 167, 169.

27 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), art 51(2) and (3), art 52(1).

28 Instructions for the Government Armies of the US in the Field, prepared by Francis Lieber, promulgated as General Order No 100 by President Lincoln, 24 April 1863 (Lieber Code), art 15.

29 Saint Petersburg Declaration (n 20) Preamble.

30 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entry into force 21 October 1950) 75 UNTS 85; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entry into force 21 October 1950) 75 UNTS 85; Geneva Convention (III) relative to the Treatment of Prisoners of War (entry into force 21 October 1950) 75 UNTS 135; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287, Common Article 3(1): ‘Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’.

31 ibid, Common Article 3(2): ‘The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict’.

32 Cecilie Hellestveit, ‘The Geneva Conventions and the Dichotomy between International and Non-International Armed Conflict: Curse or Blessing for the “Principle of Humanity”?’ in Larsen, Cooper and Nystuen (n 16) 86.

33 Hampson, Françoise J, ‘Direct Participation in Hostilities and the Interoperability of the Law of Armed Conflict and Human Rights Law’ (2011) 87 International Law Studies Series 187, 194.

34 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits Judgment [1986] ICJ Rep 14, [218].

35 Heller, Kevin Jon, ‘The Use and Abuse of Analogy in IHL’ in Ohlin, Jens David (ed), Theoretical Boundaries of Armed Conflict and Human Rights (Cambridge University Press 2016) 232, 239.

36 ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-I-AR72, Appeals Chamber, 2 October 1995, [119] (‘Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’); Crawford, Emily, ‘Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts’ (2007) 20 Leiden Journal of International Law 441; Steward, James G, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict’ (2003) 85 International Review of the Red Cross 313; Reisman, Michael W and Silk, James, ‘Which Law Applies to the Afghan Conflict?’ (1988) 82 The American Journal of International Law 459.

37 See generally Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (ICRC and Cambridge University Press 2005, revised 2009) (ICRC Study).

38 Henckaerts, Jean-Marie and Debuf, Els, ‘The ICRC and the Clarification of Customary International Humanitarian Law’ in Lepard, Brian D, Reexamining Customary International Law (Cambridge University Press 2017) 161, 167.

39 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II), art 13(2).

40 ICRC Study (n 37) 5–8.

41 Additional Protocol II (n 39) art 1(1).

42 Additional Protocol I (n 27) arts 44, 50(1).

43 Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (Oxford University Press 2012) 359.

44 Hays W Parks, ‘Air War and the Law of War’ (1990) 32 The Air Force Law Review 1, 118–20.

45 Additional Protocol I (n 27) art 51(3); Additional Protocol II (n 39) art 13(2) and (3).

46 The High Court of Israel recognised this problem in the Targeted Killings case and opined that there is a difference between civilians who directly participate in hostilities sporadically and those who commit a chain of hostilities with short rests in between: HCJ 769/02 Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006], para 39 (Targeted Killings).

47 US Department of Defense Law of War Manual, June 2015, 218, para 5.8.3.

48 ICTY, Prosecutor v Galić, Judgment, IT-98-29-T, Trial Chamber I, 5 December 2003, [47] (‘For the purpose of the protection of victims of armed conflict, the term “civilian” is defined negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict’).

49 Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 28.

50 ibid 36.

51 Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985) 7576 (‘If we can put a soldier out of action by capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill him. If there are two means to achieve the same military advantage, we must choose the one which causes the lesser evil’).

52 Melzer (n 49) 82.

53 Hill-Cawthorne (n 9) 242–45.

54 Melzer, Nils, ‘Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2010) 42 New York University Journal of International Law and Politics 831, 896913; Goodman, Ryan, ‘The Power to Kill or Capture Enemy Combatants’ (2013) 24 European Journal of International Law 819.

55 See, eg, Parks, W Hays, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42 New York University Journal of International Law and Politics 770; Schmitt, Michael N, ‘Wound, Capture, or Kill: A Reply to Ryan Goodman's “The Power to Kill or Capture Enemy Combatants’’’ (2013) 24 European Journal of International Law 855.

56 Melzer (n 49) 81.

57 US Law of War Manual (n 47) 51 para 2.2.

58 Melzer (n 49) 80, fn 218, citing Saint Petersburg Declaration (n 20) Preamble.

59 McDougal, Myres S and Feliciano, Florentino P, Law and Minimum World Public Order (Yale University Press 1961) 75, fn 183.

60 ibid 75.

61 Schabas (n 14) 607.

62 ibid. Without going into too much detail, the indifference of IHL to the overall purpose of armed conflict is generally thought of as a feature rather than a defect of the regime. Put simply, this is to maximise humanitarian protection. Such agnosticism precludes protection under IHL from being prejudiced by the overall ‘justness’ of the armed conflict. See also Sloane (n 13).

63 Blum (n 21) 400–01.

64 ibid 393.

65 US Department of Defense, Department of the Air Force, Basic Doctrine, Doctrine Document 1, 17 November 2003, 18 (‘A vital part of the new approach to warfare is the emerging arena of effects-based operations (EBO). A further step away from annihilation or attrition warfare, EBO explicitly and logically links the effects of individual tactical actions directly to desired military and political outcomes’); Dill, Janina, ‘The 21st Century Belligerent's Trilemma’ (2015) 26 European Journal of International Law 83, 93.

66 US Department of Defense, Air Force Doctrine Document 3-70, ‘Strategic Attack’, 12 June 2007 (last reviewed 1 November 2011) 6.

67 Dill (n 65) 93.

68 Blum (n 21) 393.

69 US Headquarters Department of the Army, Counterinsurgency, FM 3-24, December 2006, 1–141.

70 ibid 1–128.

71 Blum (n 21) 417.

72 ibid 415–17.

73 Charter of the United Nations (entered into force 24 October 1945) UNTS XVI (UN Charter), arts 51 and 42.

74 McDougal and Feliciano (n 59) 527.

75 ibid 528.

76 UN Charter (n 73) art 51.

77 Nicaragua v US (n 34) [194].

78 Kretzmer, David, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’(2005) 16 European Journal of International Law 171, 187.

79 Case concerning Oil Platforms (Islamic Republic of Iran v United States of America), Counterclaims, Judgment [2003] ICJ Rep 200, [76].

80 Cannizzaro, Enzo, ‘Contextualizing Proportionality Jus ad Bellum and Jus in Bello in the Lebanese War’ (2006) 88 International Review of the Red Cross 779, 781; Kretzmer (n 78) 188; Sloane (n 13) 52.

81 While this position is not universally accepted, it finds support in academia and practice: Greenwood, Christopher, ‘The Relationship between the Ius ad Bellum and Ius in Bello’ (1983) 9 Review of International Studies 221; for an alternate view, see Dinstein, Yoram, War, Aggression, and Self-Defense (4th edn, Cambridge University Press 2005) 237.

82 The examples raised by Anderson include the movement of targets from Afghanistan to ‘safe havens’ such as Pakistan, Yemen and Somalia: Anderson, Kenneth, ‘Targeted Killings and Drone Warfare: How We Came to Debate Whether There is a “Legal Geography of War”’ in Berkowitz, Peter (ed), Future Challenges in National Security and Law (Hoover Institution Press 2011) 17.

83 ibid 8.

84 Corn, Geoffrey S, ‘Self-Defense Targeting: Blurring the Line between the Jus ad Bellum and the Jus in Bello’ (2012) 88 International Law Studies Series 57, 58.

85 ibid.

86 Harold Hongju Koh, ‘The Obama Administration and International Law’, Keynote Speech, Annual Meeting of the American Society of International Law’, Washington (DC), 25 March 2010, https://2009-2017.state.gov/s/l/releases/remarks/139119.htm.

87 The controversy surrounding whether a non-state armed group is capable of an ‘armed attack’ for the purposes of triggering self-defence is also noted.

88 See generally Bethlehem, Daniel, ‘Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors’ (2012) 106 American Journal of International Law 770.

89 Blum, Gabriella, ‘The Dispensable Lives of Soldiers’ (2010) 2 Journal of Legal Analysis 69; Barak Medina, ‘Regulating Anti-Terror Warfare through the Individual Dangerousness Doctrine: Theory and the Israeli Supreme Court Jurisprudence’ (2013), available at SSRN: https://ssrn.com/abstract=2259158.

90 Sloane (n 13) 50.

91 Greenwood (n 81) 224.

92 ibid.

93 ibid.

94 UNSC Res 678 (29 November 1990), UN Doc S/RES/678, para 2.

95 Dinstein, Yoram, The Conduct of Hostilities in International Armed Conflict (Cambridge University Press 2004) 94.

96 ibid.

97 Tom Dannenbaum, ‘Why Have We Criminalized Aggressive War?’ (2017) 126 Yale Law Journal 1242, 1275.

98 UN Charter (n 73) art 2(4) (‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purpose of the United Nations’ (emphasis added)).

99 Kretzmer, David, ‘Rethinking the Application of IHL in Non-International Armed Conflicts’ (2009) 42 Israel Law Review 8, 2331.

100 ECtHR, McCann and Others v United Kingdom, App No 18984/91, 27 September 1995, paras 202–14; ECtHR, Hamiyet Kaplan and Others v Turkey, App No 36749/97, 13 September 2005, paras 49–54; ECtHR, Güleç v Turkey, App No 54/1997/838/1044, 27 July 1998, para 71; see also Office of the High Commissioner for Human Rights (OHCHR), Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (27 August–7 September 1990), UN Doc A/CONF.144/28/Rev.1, provision 2.

101 Kretzmer (n 99) 25.

102 ibid 22.

103 ibid 23.

104 ibid 36.

105 ibid 35–36.

106 Lieber Code (n 28).

107 Ohlin, Jens David, ‘The Combatant's Privilege in Asymmetric and Covert Conflicts’ (2015) 40 Yale Journal of International Law 337, 359.

108 Additional Protocol II (n 39) art 6(5) (‘At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’).

109 Corn, Geoffrey S, ‘Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors’ (2011) 22 Stanford Law and Policy Review 253.

110 Melzer (n 49) 71–73; Bothe, Michael, Partsch, Karl J and Solf, Waldemar A, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (2nd edn, Martinus Nijhoff 2013) 773–74; Targeted Killings (n 46) para 39; ICTR, Prosecutor v Rutaganda, Judgment, ICTR-96-3-T, Trial Chamber I, 6 December 1999, [101].

111 Melzer (n 49) 31–36.

112 Fenrick, William J, ‘ICRC Guidance on the Direct Participation in Hostilities’ (2009) 12 Yearbook of International Humanitarian Law 287; Watkin, Kenneth, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities Interpretive Guidance”’ (2010) 42 New York University Journal of International Law and Politics 641; Corn, Geoffrey and Jenks, Chris, ‘Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflicts’ (2011) 33 University of Pennsylvania Journal of International Law 313, 339–40.

113 Sivakumaran (n 43) 360.

114 Geiß, Robin, ‘Asymmetric Conflict Structures’ (2006) 88 International Review of the Red Cross 757, 762–64.

115 Geneva Convention (III) (n 30) art 4(2); Additional Protocol I (n 27) art 44(3).

116 Benson, Kristina, ‘“Kill ‘Em and Sort it out Later:” Signature Drone Strikes and International Humanitarian Law’ (2014) 27 Pacific McGeorge Global Business and Development Law 17, 2021.

117 WJ Hennigan, ‘White House to Finally Reveal Civilian Deaths from U.S. Drone Attacks’, Los Angeles Times, 27 June 2016, http://www.latimes.com/world/middleeast/la-fg-obama-drone-casualties-20160627-snap-story.html; Scott Shane, ‘Drone Strikes Reveal Uncomfortable Truth: U.S. is Often Unsure about Who Will Die’, The New York Times, 23 April 2015, https://www.nytimes.com/2015/04/24/world/asia/drone-strikes-reveal-uncomfortable-truth-us-is-often-unsure-about-who-will-die.html?mcubz=0.

118 ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Cambridge University Press 2016) (Updated Commentary), para 236.

119 ICTY, Prosecutor v Tadić, Opinion and Judgment, IT-94-1-T, Trial Chamber, 7 May 1997, [562].

120 ibid.

121 See, eg, ICTY, Prosecutor v Haradinaj and Others, Judgment, IT-04-84-T, Trial Chamber I, 3 April 2008, [33]–[56]; ICTY, Prosecutor v Limaj and Others, Judgment, IT-03-66-T, Trial Chamber II, 30 November 2005, [34]–[63].

122 Additional Protocol II (n 39) art 1(1).

123 Adil Ahmad Haque, ‘Triggers and Thresholds of Non-International Armed Conflict’, Just Security, 29 September 2016, https://www.justsecurity.org/33222/triggers-thresholds-non-international-armed-conflict.

124 Dannenbaum (n 97) 1272.

125 ibid.

126 Louise Arimatsu and Mohbuba Choudhury, ‘The Legal Classification of the Armed Conflict in Syria, Yemen, and Libya’, Chatham House, March 2014, 7–8, https://www.chathamhouse.org/sites/files/chathamhouse/home/chatham/public_html/sites/default/files/20140300ClassificationConflictsArimatsuChoudhury1.pdf.

127 ibid 8.

128 See Section 3.2.

129 Hill-Cawthorne (n 9) 232–34.

130 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), Report of the ILC, 53rd session [2001] 2 Yearbook of the International Law Commission, UN Doc A/56/10, art 25(2)(b).

131 de Silva, KM, Sri Lanka and the Defeat of the LTTE (Vijitha Yapa 2012) 192.

132 ibid 195.

133 ibid 196.

134 The Krupp Trial (n 24) 138–39.

135 Prosecutor v Tadić (n 36) [70] (‘International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there’).

136 ibid.

137 ICRS, Updated Commentary (n 118) para 461.

138 European Convention on Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222.

139 ibid art 2(2).

140 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171, art 6(1).

141 American Convention on Human Rights, Pact of San José, Costa Rica (entered into force 18 July 1978) 1144 UNTS 143, art 4.

142 African Charter on Human and Peoples’ Rights (entered into force 21 October 1986) 1520 UNTS 217, art 4.

143 Nowak, Manfred, U.N. Convention on Civil and Political Rights: CCPR Commentary (NP Engel 1993) 111.

144 UNGA, Note by the Secretary-General, Extrajudicial, Summary or Arbitrary Executions (5 September 2006), UN Doc A/61/311, para 42 (‘Proportionality deals with the question of how much force might be permissible. More precisely, the criterion of proportionality between the force used and the legitimate objective for which it is used requires that the escalation of force be broken off when the consequences for the suspect of applying a higher level of force would “outweigh” the value of the objective’).

145 ibid para 44 (‘The fundamental question is of proportionality between the objectively anticipatable likelihood that failing to incapacitate the individual would result in the deaths of others’); HRC, Draft General Comment No 36 (n 3) para 18; Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (28 May 2010), UN Doc A/HRC/14/24Add.6, para 32.

146 See also Martin, Francisco Forrest, ‘Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict’ (2001) 64 Saskatchewan Law Review 347.

147 ECHR (n 138) art 2(2); ECtHR, McCann and Others v United Kingdom (n 100) para 194.

148 ECtHR, Finogenov and Others v Russia, App nos 18299/03 and 27311/03, 20 December 2011, para 211.

149 ibid para 218.

150 US Law of War Manual (n 47) 51, para 2.2.

151 Schabas (n 14) 605.

152 ECtHR, Isayeva, Yusupova and Bazyeva v Russia, App nos 57947/00, 57948/00 and 57949/00, 24 February 2005, para 11.

153 ibid para 160.

154 ibid para 28.

155 ibid para 178.

156 Schabas (n 14) 605.

157 Isayeva, Yusupova and Bazyeva v Russia (n 152) para 182.

158 ECHR (n 138) art 15(1).

159 ibid art 15(2).

160 ibid.

161 ECtHR, Ireland v United Kingdom¸ App no 5310/71, 18 January 1978), para 207.

162 US Military Tribunal at Nuremberg, The Hostages Trial: Trial of Wilhelm List and Others, Case No 47, Judgment, 8 July 1947–19 February 1948 (1949) Law Reports of Trials of War Criminals, Vol VIII, 34, 68–69 (‘We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions’).

163 Ireland v United Kingdom (n 161) para 212.

164 ECtHR, Hugh Jordan v United Kingdom, App no 24746/94, 4 August 2001, para 103 (‘Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control or custody, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation’).

165 OHCHR, International Legal Protection of Human Rights in Armed Conflict, HR/PUB/11/01 (United Nations 2011) 24.

166 See generally Ruys, Tom, ‘The Syrian Civil War and the Achilles’ Heel of the Law of Non-International Armed Conflict’ (2014) 50 Stanford Journal of International Law 247.

167 Additional Protocol I (n 27) art 1(4).

I am indebted to the Minerva Center for Human Rights for providing the opportunity to present an earlier draft of this article at the 11th Annual Minerva/ICRC International Conference on International Humanitarian Law, as well as the Tokyo Branch of the International Committee of the Red Cross (ICRC) for facilitating my participation in the event. I am also grateful for the comments I received at the Conference, as well as other notes given to me by Professors Anselmo Reyes, Lech Garlicki and Nicholas Tsagourias throughout the research and writing of this article. Lastly, I would like to thank my supervisor at Doshisha University, Professor Kyo Arai, for his crucial guidance and support. Any errors or oversights are mine and mine alone.

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