Abstract

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

Highlights

  • During the past decade, the incidence of terrorist attacks of varying scales and typologies for which responsibility is claimed by, or traceable to, militant armed groups has risen sharply.[2]

  • These conditions are identifiable by analysing how the right to life is qualified in the text of the major human rights treaties: the International Covenant on Civil and Political Rights (ICCPR);[42] the European Convention on Human Rights (ECHR);[43] the American Convention on Human Rights (ACHR);[44] and the African Charter on Human and Peoples’ Rights (ACHPR).[45]

  • Civilians are lawfully subject to attack if they ‘take a direct part in hostilities’.143. International law governing both international and noninternational armed conflict protects civilians ‘unless and for such time as they take a direct part in hostilities.’[144]. Even when they participate in hostilities, civilians may not be attacked without further consideration.[145]

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Summary

Introduction

The incidence of terrorist attacks of varying scales and typologies for which responsibility is claimed by, or traceable to, militant armed groups has risen sharply.[2]. That states consider themselves legally permitted to use lethal force against suspected terrorists is confirmed in national judicial decisions and the practice of states.[13] From an international law perspective, the issue is not whether a lethal-force response to terrorism is legitimate, but whether its exercise or scope is limited by operation of law or principle.[14] A 2015 report by Kenya National Commission on Human Rights, an independent constitutional commission, documented 121 cases of egregious human rights violations, including 25 extrajudicial killings and 81 forced disappearances of youth living in Kenya’s Somalia-frontier counties.[15] This has been suggested to be in the context of the state’s lethal-force response to mounting crime and terrorism.[16] Kenyan security forces have been much criticised for violating constitutional due process guarantees that prohibit arbitrary killings and issuance of shoot-to-kill orders.[17]. The limits of targeted killing in counter-terrorism operations roneous, in the minority and increasingly isolated; and this is evident in the work of human rights monitoring bodies and in the more recent state practice of the objectors.[34]

Targeted killing in the context of law enforcement
The right to life in international law and its possible limitation
Unity of norms on justifiable killing in law enforcement
Legal standards for justifiable killing
Sufficient legal basis
Legitimate purpose
Absolute necessity
Strict proportionality
Targeted killing in the context of national self-defence
Necessity in self-defence
Proportionality in self-defence
Targeted killing in the context of armed conflict
The principle of distinction
Conduct amounting to direct participation in hostilities
Temporal scope of direct participation in hostilities
Significance of membership of non-state armed groups
The principle of military necessity
The principle of proportionality
The principle of precaution
Concluding observations
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