Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict

by Jonathan Horowitz

[Jonathan Horowitz is a Legal Officer on National Security and Counterterrorism in the Open Society Justice Initiative. This post is based on his recently published article in Emory International Law Review, “Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict,” and will also appear in a longer form and under a different title in a forthcoming book, Theoretical Boundaries of Armed Conflict and Human Rights, edited by Jens Ohlin for Cambridge University Press.]

If a foreign State asked you (a government official) permission to let it kill an individual on your government’s territory – an individual who the foreign State said it was fighting against in a non-international armed conflict (NIAC) but who was not in a NIAC against your government – would your human rights obligations prevent you from providing your consent? To pose the question more directly: Would you permit another state to kill someone on your territory in a manner that you yourself weren’t allowed to do?

These questions expose a rarely discussed tension that rests at the heart of the notion of a global (or transnational) NIAC. Unlike many important writings that debate this issue with a focus on the attacking State, these questions seek to reveal the legal responsibilities, namely under human rights law, that arise when a host State grants its consent to the attacking State.

The underlying assumption of a global NIAC is that the US, or any State, may chase its enemies around the world using international humanitarian law (IHL) targeting rules. John O. Brennan, when serving as assistant to the US president for homeland security and counterterrorism, articulated the notion of a global NIAC when he stated “[t]here is nothing in international law that…prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”

When we look at this statement from the perspective of the consenting State rather than from the perspective of the attacking State, two things become obvious. The first is that the attacking State’s claims to IHL targeting authorities are more permissive than the host State’s international human rights law (IHRL) obligations. This is because, under our scenario, the host State is not in a NIAC with the attacking State’s enemies and so the host State’s IHRL obligations still apply in full.

A second observation it that under the obligations to respect and protect the human rights of people on its territory, a State must not take part in unlawful and arbitrary deprivation of life and it must protect people in its territory from the same.

When this second observation is linked with the first one, the situation arises whereby even if the foreign State sought to carry out a killing in complete conformity with IHL, the way the killing occurred may still have gone far beyond what IHRL allows the host State to permit. That being the case, the host State would be barred from providing its consent; and, as I explain in more detail in a new article, this significantly undercuts the notion of a global NIAC.

This conclusion, however disappointing it may be for attacking States that wish to use consent as a legal sanitizer, isn’t exactly legal nuclear science. But I do think it’s an area that has largely gone unexplored and allows consenting States to get off the hook for their unlawful role in permitting killings that they have no right to permit.

The problems that IHRL poses for a State that is asked to grant its consent in the context of a global NIAC doesn’t, however, mean that a State can’t defend itself from the serious threats of non-State actors abroad. It means that such use of force must be based on other legal authorities, be them host State law enforcement measures, relying on the inherent right to self-defense, UN Security Council authorization, joining a host State’s armed conflict with a common enemy, and so on.

And while it’s true that distinguishing between using a legally permissible framework or a legally impermissible framework may lead to no material difference in the final outcome (i.e., use of lethal force and casualties may still result), the distinction remains important. A global NIAC stands for something far greater than the consequences of any single lethal attack or group of lethal attacks that a State may wish to carry out. It permits a State to engage in long-lasting armed conflict whereby human rights law is sidelined and the more permissible IHL targeting rules are routinely applied without geographic constraint. Such a legal framework dramatically expands a State’s use of force beyond what international law had envisaged to date.

But herein lays a considerable problem. It will be an uphill battle to persuade host States to respect their human rights obligations (in this case by refusing to grant consent) within the extremely politicized and highly insecure sphere of terrorism, counterterrorism, and armed conflict, especially when the request for consent comes from an attacking State that has considerable military, political, and economic resources to provide or withhold. In turn, this will require a sustained focus and intensified discussions on the legal obligations of the host State and will have to include holding the host State accountable for its breach of international law.

7 Responses

  1. Jonathan: You describe something that certainly is a *potential* problem–where the host state consents to the threatened state using lethal force against the NSA in a NAIC, in a situation where the host state itself could stop the the threat by less restrictive means. As you know, Ashley Deeks has already written on this, and proposed an evolution of international law to impose restrictions on the threatened state in such a case.

    It’s not clear, however, that this ever happens — not yet, at least. The cases everyone presumably has in mind are those in which the host state is *not* capable of dealing with the threat, usually because the NSA has taken refuge in ungovernable spaces, in which “capture” operations would risk far greater casualties than the use of force by the threatened state.

    Where capture operations *are* feasible, they are almost always employed. For obvious reasons–including but not limited to human rights obligations–host-state officials do *not* regularly provide their consent to the use of force in the hypothetical situation you describe at the top. One important aspect of the Brennan speech to which you link was his *avoidance* of the language of “global war”–he emphasized that sovereignty norms, among others, impose significant constraints that make a “global” use of lethal force unthinkable. That’s why there are no drone strikes in Berlin, or Brussels, or Seattle.

  2. I wonder if there are actually two distinct issues. States consent to the use of force because otherwise there would be a 2(4) violation, not necessarily because a state wants to kill someone. Compare to a SOFA. I am not sure that human rights compliance is a condition on forgiveness for a 2(4) violation. In order to have state responsibility for a human rights violation, we would need some positive act of complicity and I am not sure a 2(4) consent alone would do it.

  3. Response…Global human rights law would not be violated if the killing was not “arbitrary” and lawful targetings under the laws of war or the law of self-defense would not be “abritrary.”

  4. Will – thank you for your comment. I think your comment about the motivations behind the issuance of consent is largely correct. But, if I understand your comment correctly – in particular the last sentence – I would make the case that “consent” would in fact trigger state responsibility (of the consenting state) under IHRL. In my article I go into this in some detail – but it essentially boils down to the notion that the “consent” is be a fundamental part of the legal framework/justification that the host state creates that permits for an “IHL” killing. Due to the fact that the right to life (under IHRL) requires an assessment of legal frameworks/justification, as well as the planning that goes into the use of force, it follows that the host State’s consent should be evaluated via the right to life under IHRL. The problem then, of course, is that the host State has no right to provide such a legal justification/framework, hence a right to life violation.

    JJ – Thank you. If I read your comment correctly, you’re alluding to the application of the principle of lex specialis – whereby the general law (IHRL) should be interpreted by the specialized law (IHL). In my article I try to address the issue you raise (although, for the record, I’m not a big fan of the term). My hesitation with applying that principle is that it is meant to be used when a single state has competing obligations. But, in the situation I describe in my post and article, we are dealing with a conflict of norms between two different states. For that reason, the doctrine of lex specialis would not apply to this situation.

  5. I would never use lex specialist as such — see Human Rights on the Battlefield, 47 Geo. Wash. Int’l L. Rev. 509 (215)

Trackbacks and Pingbacks


    Opinio Juris » Blog Archive Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict – Opinio Juris

  2. best dog insurance

    Opinio Juris » Blog Archive Guest Post: Reaffirming the Role of Human Rights in a Time of “Global” Armed Conflict – Opinio Juris