Killing at a Distance: Aerial Targeting and the Right to Life

Abstract

Over a century ago, military aviation opened up a new domain of warfare. Since then, air power has become integral to modern warfare. In the words of the UK’s Air and Space Doctrine, air power harbours a distinct strategic potential in its own right and acts as a ‘force multiplier by enabling and enhancing other military and non-military effects’. However, legal constraints imposed by human rights law now threaten to undermine air power’s strategic potential. The jurisprudence of international and domestic courts has extended the applicability of international human rights norms to military operations conducted overseas and expanded the substantive obligations borne by States in such circumstances. The case-law relating to the European Convention on Human Rights (ECHR) has been at the forefront of these trends. As I argue in this paper, the cumulative effect of this development poses a strategic risk to the use of air power by the State parties to the ECHR. Except for a handful of judgments, the bulk of the relevant jurisprudence has evolved with reference to military operations on land. As a result, principles that are difficult to implement in a land environment now extend into a domain for which they are even less suited. The jurisprudence therefore stands at a juncture. By remaining blind to the distinct features of aerial operations, it may impose obligations on States that will undermine the utility of air power, respect for fundamental rights and freedoms or, at worst, both. Alternatively, by becoming more attuned to the special features of operations in the air, it may be able to reconcile the sometimes diverging demands of aerial warfare and human rights norms. The aim of this draft paper is to assess the risk that these developments pose to air power by focusing on the extra-territorial applicability of the ECHR and the application of the right to life in the context of air operations. Section II challenges the conventional wisdom that jurisdiction within the meaning of Article 1 of the ECHR must be equated with actual control. Instead, I suggest that the extra-territorial reach of the Convention, as it emerges from the progressive evolution of the case-law, cannot be understood without distinguishing between jurisdiction as regulatory authority and jurisdiction as actual control.