Table of Contents. Introduction Part One Human Rights... 41

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1 Table of Contents Introduction... 1 A. The Recent Situation in Israel... 1 B. The Further International Context... 6 C. Defining Targeted Killings... 8 I. Different Terms Frequently Used... 9 II. Aspects of Intention Intention in Relation to the Targeted Person a) Capital Punishment b) Targeted Killings c) Preventive Killings d) Preventive Use of Force Presumably Lethal e) Preventive Use of Non-Lethal Force Intention in Relation to Innocent Third Persons III. Assassination IV. Conclusion: Targeted Killings and Preventive Killings D. Moral Legitimacy and Effectiveness of Targeted Killings E. The State of Research: Different Approaches I. The Topic s Perception in Legal Writing II. Different Approaches F. Terminology I. Occupied Palestinian Territory II. Terrorism Part One Human Rights A. Human Rights Conventions and the Right to Life I. The Scope of Protection of Human Rights II. The Special Status of the Right to Life B. The International Covenant on Civil and Political Rights I. The Scope of Protection of Article The Defensive Function (status negativus) a) Arbitrary Deprivation as Unlawful Deprivation of Life b) Arbitrary Deprivation as a Broader Concept than Unlawful Deprivation of Life (1) Text and Context (2) Object and Purpose IX

2 X Table of Contents (3) Preparatory Work c) Guiding Principles d) Specific Examples (1) Genocide, Mass Killings and Other Acts of Mass Violence (2) Killings that Contradict International Humanitarian Law (3) Deaths Resulting from Acts of Aggression (4) Deaths Resulting from Torture or Other Ill-Treatment (5) Enforced or Involuntary Disappearances (6) Deaths Resulting from Excessive Use of Force by Law-Enforcement Personnel (7) Executions Carried Out without Due Process of Law e) Characteristics of the Examples Discussed The Beneficiary Function (status positivus) a) Effects on the Burden of Persuasion b) The Duty to Investigate as Part of the Right to Life Limits of the Scope of Protection: The Socio-Economic Aspect II. Exceptions: Non-Arbitrary Deprivations of Life The Death Penalty a) General Limitations b) Due Process Requirements Deprivation of Life in Self-Defence or in Defence of Another Person a) Capability of Furthering the Goal b) Necessity of the Means (1) Self-Defence (2) Defence of Another Person (3) New Concepts of Immediacy? (4) Dismissal of the Concept of Immediacy? (5) The Classical Concept of Immediacy (6) Consequences c) Proportionality in the Narrow Sense Deprivation of Life in Order to Effect an Arrest or Prevent the Escape of a Person Detained a) Capability to Further the Aim b) Necessity of the Means (1) Effecting an Arrest (2) Preventing an Escape... 97

3 Table of Contents XI c) Proportionality in the Narrow Sense Deprivation of Life for the Purpose of Quelling a Riot a) Capability to Further the Aim b) Necessity Regarding the Quelling of a Riot or Insurrection c) Proportionality in the Narrow Sense? Absolute Limits and Non-Derogability of Article Deprivation of Life in the Course of an Armed Conflict Means of Control a) Perspective of a Third Person as Standard? b) Procedural Safeguards ex post factum III. Conclusion: Killings Under the International Covenant C. The American Convention on Human Rights I. Article 4 American Convention on Human Rights Scope of Protection The Defensive Function (status negativus) The Beneficiary Function (status positivus) a) Effects on the Standards of Proof Applicable b) The Duty to Investigate as Part of the Right to Life II. Exceptions Non-Arbitrary Deprivation of Life The Death Penalty Deprivation of Life in the Course of Administrative Police Action a) A Different Concept of Immediacy? b) A Different Concept Concerning the Quelling of a Riot? Non-Derogability of Article Deprivation of Life in the Course of Armed Conflict III. Conclusion: Killings Under the American Convention D. The African Charter on Human and Peoples Rights I. Article 4 African Charter on Human and Peoples Rights Scope of Protection The Defensive Function (status negativus) The Beneficiary Function (status positivus) II. Exceptions Non-Arbitrary Deprivation of Life III. No Explicit Non-Derogability of Article IV. Conclusion: Killings Under the African Charter E. The European Convention on Human Rights I. Article 2 European Convention on Human Rights Scope of Protection

4 XII Table of Contents 1. The Defensive Function (status negativus) a) Does Intentional Deprivation Require Dolus? b) Does Article 2 Cover Negligent Deprivation of Life? The Beneficiary Function (status positivus) a) Effects on the Standards of Proof Applicable b) The Duty to Investigate as Part of the Rights to Life c) The Duty to Ensure Adequate Planning and Control of Security Forces Operations II. Exceptions Permissible Deprivation of Life The Death Penalty Exceptions Enumerated in Article 2 Para a) The Test of Absolute Necessity b) The Use of Force in Defence of Any Person from Unlawful Violence c) The Use of Force in Order to Effect a Lawful Arrest or to Prevent the Escape of a Person Lawfully Detained d) The Use of Force in Action Lawfully Taken for the Purpose of Quelling a Riot or Insurrection Non-Derogability of Article 2 and Deprivation of Life in the Course of Armed Conflict III. Conclusion: Killings Under the European Convention F. Other Treaties Protecting the Right to Life G. General International Law Protection of the Right to Life I. Customary International Law II. General Principles of Law and Natural Law Foundations III. Content and Exceptions of the Right to Life in General International Law IV. The Right to Life as jus cogens H. Conclusion: The Human Right to Life Part Two International Humanitarian Law A. The Relevant Sources of Law I. The Hague Law II. The Geneva Law The 1949 Geneva Conventions The 1977 Additional Protocols III. Other International Humanitarian Instruments IV. Customary International Humanitarian Law

5 Table of Contents XIII B. The Basic Principles Underlying International Humanitarian Law I. Military Necessity II. Humanity III. Proportionality IV. Distinction ratione personae C. Combatants I. Combatant Status in International Armed Conflicts Members of the Armed Forces Members of Militias and Volunteer Corps a) Being Organized b) Belonging to a Party to the Conflict c) Being Commanded by a Person Responsible for His Subordinates d) Having a Fixed Distinctive Sign Recognizable at a Distance e) Carrying Arms Openly f) Conducting Operations in Accordance with the Laws and Customs of War g) Non-Allegiance to the Detaining Power Levée en masse Conclusion: Combatant Status II. Fighters in Non-International Armed Conflicts Defining Criteria Problems Concerning Distinction a) Active Participation as the Criterion b) Group Membership as the Criterion c) Discussion Conclusion III. Protection of Combatants and Fighters Prohibition of Perfidy a) General Definition of Perfidy b) Distinction of Perfidy and Ruses of War c) Prohibitions of Individual Perfidious Acts (1) Targeted Killings Under a Perfidious Cover (i) The Feigning of Civilian Status (ii) The Improper Use of Flags and Symbols (2) Killings Rendered Perfidious Due to the Status of the Targeted Person (3) Killings by Perfidious Means (4) Other Perfidious or Treacherous Killings Prohibition to kill Persons hors de combat

6 XIV Table of Contents 3. Prohibition to Carry Out Executions without Previous Judgement Further Limits that Apply to Any Attack IV. Conclusion: Targeted Killings of Combatants D. Civilians I. Civilian Status II. Protection of Civilians Individually Targeted Civilians a) Prohibition to Attack Civilians b) Prohibition to Target Non-Military Objectives c) Exception: Civilians Taking Direct Part in Hostilities (1) Hostilities (2) Taking Direct or Active Part in Hostilities (i) Clear Cases of Direct Participation (ii) Clear Cases of Non-Direct Participation (iii) Grey Areas (3) The Duration of Direct Participation (i) The Revolving Door Theory (ii) The One Way Approach (iii) Critique d) No Exception: Protected Persons Suspected or Engaged in Activities Hostile to the Security of the State e) Further Restrictions f) Conclusion: Targeted Killings of Civilians Protection of Civilians not Specifically Targeted a) Prohibition of Indiscriminate Attacks b) Proportionality, Collateral Damage and Precautions in Attack (1) Direct Military Advantage Anticipated by an Attack (2) Excessive Civilian Damages (3) Consequence: Precautions in Attack (4) Proportionality and Non-International Armed Conflicts c) Conclusion Prohibition to Direct Reprisals Against the Civil Population III. Conclusion: Targeted Killings of Civilians E. Is there a Third Category such as Unlawful Combatants? I. Terminology and Its Historical Basis

7 Table of Contents XV II. New Notions III. The Status of Unlawful Combatants Unlawful Combatants in International Armed Conflicts a) Unlawful Combatants as Unprotected Persons b) Unlawful Combatants as Protected Persons Unlawful Combatants in Non-International Armed Conflicts IV. Conclusion: No such Third Status Exists V. Consequence: No Special Status of Terrorists Under International Humanitarian Law F. Conclusion: Targeted Killings and International Humanitarian Law Part Three No Additional Justifications or Excuses A. Concepts Generally Capable of Precluding Wrongfulness B. Limits to Circumstances Precluding Wrongfulness I. Peremptory Norms of General International Law (Jus Cogens) II. Human Rights III. International Humanitarian Law C. Conclusion: No Additional Justifications or Excuses Part Four The Applicability of the Relevant International Law A. The Territorial and Extraterritorial Applicability of Human Rights Provisions I. The International Covenant on Civil and Political Rights II. The American Convention on Human Rights III. The European Convention on Human Rights Effective Control Over Territory De facto Control Over Persons IV. The African Charter on Human and Peoples Rights V. Customary International Law VI. Conclusion B. The Law Applicable in Times of a Public Emergency Falling Short of Being an Armed Conflict I. Human Rights and Public Emergencies II. International Humanitarian Law and Public Emergency C. The Law Applicable in Non-International Armed Conflicts

8 XVI Table of Contents I. Internal Disturbances II. Non-International Armed Conflicts Human Rights in Non-International Armed Conflicts International Humanitarian Law in Non-International Armed Conflicts The Relationship of Human Rights and Humanitarian Law in Non-International Armed Conflicts Conclusion III. The Treatment of Certain Non-International Armed Conflicts as International Armed Conflicts D. The Law Applicable in International Armed Conflicts I. The Intensity Necessary to Fulfil the Preconditions of an Armed Conflict II. The International Character of an Armed Conflict Horizontally Mixed Armed Conflicts Vertically Mixed Armed Conflicts Several Conflicts or One Situation that Must Be Regarded as a Whole? III. Conclusion E. Military Occupation I. Calm Occupations II. Special Exception to the Right to Life in Situations of Calm Occupation? III. Resumption or Outbreak of Hostilities in a Territory Under Occupation IV. Conclusion F. International Humanitarian Law and the War on Terror I. Is the War on Terror an International Armed Conflict? Level of Violence Parties to a Possible International Armed Conflict a) An International Armed Conflict between a State and Terrorist Non-State Actors? b) Armed Conflict between the Victim State of the Attack and a Foreign State Related to the Terrorist Group? (1) Non-State Actors as Other Militias and Members of Volunteer Corps Belonging to a Party to a Conflict (2) Attribution According to Nicaragua or Tadi? (i) Nicaragua and the International Law Commission: Effective Control

9 Table of Contents XVII (ii) Tadi : Overall Control (iii) Conclusion: Nicaragua v. Tadi? (3) Attribution According to Tehran Hostages? Conclusion II. Is the War on Terror a Non-International Armed Conflict? Level of Violence Non-International Character Kretzmer s Mixed Model Critique III. Conclusion No General Applicability of International Humanitarian Law to the War on Terror de lege lata Applicability of International Humanitarian Law to the War on Terror de lege ferenda? Part Five Consequences of the Aforementioned for the Situation in Israel A. The International Law Applicable I. The Applicability of Human Rights Law II. The Applicability of International Humanitarian Law Historical Background The Legal Status of the Occupied Palestinian Territories a) Changes Due to the Oslo Accords? (1) The Status of Areas A (2) The Status of Areas B and Areas C The Legal Nature of the Conflict a) Is the Present Situation an Armed Conflict? b) If at all, Is It an International, Internationalised or Non-International Armed Conflict? III. Conclusion: The Law Applicable to the Situation in the Occupied Territories B. The Standards Applicable to the Targeted Killings by Israeli Forces I. Human Rights Standards Targeted Killings as a Deterrent or Punishment Are Illegal Preventive Killings Are Possible within Narrow Limitations II. International Humanitarian Law

10 XVIII Table of Contents 1. The Israeli Supreme Court s Assessment: The Law of Armed Conflict Terrorists Are neither Combatants, nor Unlawful Combatants but Civilians Direct Participation by Civilians in Hostilities III. The Israeli Supreme Court s Further Preconditions for Targeted Killings C. Conclusion: The Situation in Israel Conclusion: Targeted Killings and International Law A. Generally, Human Rights Law Applies to Targeted Killings B. These Standards Are in Some Situations Amended by International Humanitarian Law C. No Justifications for Targeted Killings Exist Outside the Human Rights and International Humanitarian Law Systems D. The Most Prominent Cases Do Not Meet these Standards Bibliography/ Index of Authorities A. Books, Treatises and Articles B. Cases I. International Tribunals and Human Rights Bodies II. Arbitration Awards III. National Courts C. International Treaties and Conventions (by Date) D. Other International Sources E. National Sources F. Press Index

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