A Hypothetical About the Beginning of IAC

A number of us — me, Aurel Sari, Eliav Lieblich, Andrew Bell, Sasha Greenawalt, Craig Martin, Ed Swaine — have been having an interesting discussion on Twitter about two important issues concerning the use of force. The first is when IHL begins to apply in an IAC. The traditional position is that any use of interstate force triggers IHL and IHL applies to  the “first shot.” Some scholars disagree and insist there is an intensity threshold for IAC, even if it is extremely low. And then there are outliers like me, who reject an intensity threshold but believe that IHL cannot apply to the first shot because that shot is what triggers IHL. In my view, the first shot is subject to IHRL, with IHL applying to all subsequent shots.

To be honest, I have not yet adequately developed my position. (So much to do…) I simply find the traditional position troubling, because in practice it means that a state can never violate the right to life of another state’s soldier by killing him — at least as long as the killing is not perfidious — as the mere act of using lethal force against the soldier triggers an IAC and applies IHL to the act. And that is true even if the two states are not engaged in hostilities and have never been engaged in hostilities — a targeted killing scenario.

The second issue we’ve been debating potentially offers an answer to that problem. The issue here is whether violations of the jus ad bellum violate not only the victim states’s sovereignty, but also the right to life of anyone killed as a result of the aggressive act. If that is the case, a state must be acting in self-defence or with the Security Council’s authorization in targeted killing scenarios, because killing another state’s soldier will violate his right to life even if he was lawfully targeted under IHL.

This understanding of the relationship between the jus ad bellum and the right to life was recently endorsed by the Human Rights Committee (HRC) in its General Comment 36. But I’m very skeptical. As Eliav Lieblich points out in an excellent article forthcoming in EJIL, GC 36’s position is inconsistent with the traditional understanding of the jus ad bellum, which views aggressive acts as violating only the victim state’s sovereignty. Unfortunately, the HRC makes no attempt to justify its position, which is literally offered in one stray sentence. You’d think the Committee would have said more, given that — as far as I know — there is no state practice in support of the HRC’s position.

In the spirit of friendly debate, I want to invite readers to consider — and comment on — the following scenario. I have constructed it to focus on the “first shot” issue, making the attack consistent with the jus ad bellum.

State X has reliable intelligence that State Y has been directing the actions of a terrorist group responsible for a string of deadly attacks in State X. State X and State Y have never previously engaged in direct hostilities, though they have long had a hostile diplomatic relationship. State X learns that the general in State Y who has been orchestrating the terrorist group’s attacks is on vacation with his family in State Z. The family is staying in a beachside resort where there is no internet and no mobile-phone reception. After obtaining State Z’s consent, State X uses a drone operated remotely by State X’s armed forces to fire a missile at the general while he is sleeping on the beach outside his cabana. The general is killed instantly — as is his wife, his two children, and three other unlucky hotel guests.

The legality of State X’s attack could be assessed through (some permutation of) three different legal regimes: the jus ad bellum, IHL, and IHRL.

(1) Under the jus ad bellum, State X has acted lawfully, because State Z consented to the attack.

(2) Under IHL, State X has almost certainly acted lawfully: the general was a lawful target, and although the death of his family and the hotel guests is regrettable, it seems unlikely that a reasonable commander would have considered the expected civilian damage to be excessive in comparison to the anticipated military advantage of taking out a high-ranking general responsible for directing terrorist attacks. And because status-based targeting exists under IHL, the general could be killed anytime and anywhere — even when he was not in State Y and not an immediate threat.

(3) Under IHRL, State X has almost certainly acted unlawfully. The general was not posing an imminent threat to life at the time he was killed. Indeed, he was asleep and in a location where he could not communicate with his forces or the terrorist group. Moreover, there is no concept of proportional collateral damage in IHRL, which means that State X had to have an independent justification for depriving each of the family members and the hotel guests of their right to life. There was obviously no such independent justification, given that the civilians posed no threat to anyone.

The jus ad bellum plays no role here in terms of whether State X lawfully killed the general’s family and the hotel guests, because State Z consented to the attack. So this is not a General Comment 36 situation in which we might deem the civilian deaths arbitrary because of an act of aggression.

The legality of State X’s actions differs significantly, however, depending on the position we take concerning whether IHL applies to the shot that creates the IAC between State X and State Y. If we adopt the traditional first-shot position, State X’s attack was almost certainly lawful, because that attack triggered an IAC and was itself governed by the generous targeting rules of IHL, particularly the one that permits proportionate collateral damage. By contrast, if we adopt my less-traditional second-shot position, State X’s attack was almost certainly unlawful: although the attack triggered an IAC and brought IHL into effect for future hostile acts, the attack itself — the first shot — was governed by IHRL’s must more restrictive rules concerning lethal force, including the prohibition on collateral damage. State X is thus responsible for an internationally wrongful act under the second-shot position, but not under the first-shot one.

Which position we adopt also determines the extent of potential individual criminal responsibility for the death of the general, the family members, and the hotel guests. Under the first-shot position, there is no criminal responsibility at all, because the attack was not a war crime (distinction and proportionality were satisfied) and the individuals responsible for the attack had the combatant’s privilege, so they cannot be prosecuted for murder in the domestic courts of State X, State Y, or State Z. Under the second-shot position, there is also no criminal responsibility for an international crime, because the attack took place outside of armed conflict and cannot be plausibly described as a crime against humanity. But killing the general, the family members, and the hotel guests was murder and the individuals responsible for the attack could be prosecuted domestically as murder, because they have no combatant’s privilege outside of armed conflict.

I am very curious to know what people think of this scenario. For my part, I am okay with State X incurring responsibility for the attack and with those responsible for the attack at least theoretically being liable to prosecution for the general’s death. I understand having sympathy for the attackers, given that they will not have combatant’s privilege despite being involved in a combat operation against a soldier from another state — an IAC-like situation, even if the first shot wasn’t covered by IHL. But I don’t think that is a major problem, given that there is no combatant’s privilege at all in NIAC, yet members of the armed forces routinely use lethal force in them.

I have opened comments. Readers can comment here or send me a tweet on Twitter. But please weigh in!