Browsing by Author "Hyartt, Anne"

Extraterritorial use of force by States against suspected terrorists is no longer a new phenomenon in today’s world, yet it remains controversial how such situations should be classified under international law and which rules should govern extraterritorial counterterrorism operations. The purpose of this study is to contribute to this topical discussion. This thesis examines the practice of United States (U.S.) to conduct targeted killings against Al-Qaida in the Arabian Peninsula (AQAP) in Yemen via drone strikes and aims at finding potential answers to controversial issues surrounding the targeted killings operations. The underlying purpose of targeted killing is to intentionally deprive a person of life, and therefore the legal basis for such a conduct should be known. It is vital to understand that the assessment on the legality of a specific targeted killing depends on the context in which it is conducted. If a targeted killing is conducted within armed conflict, then international humanitarian law is the applicable legal framework; if it is conducted outside armed conflict, then human rights law is the applicable legal framework. It has long been the U.S. assertion that it is in an armed conflict with Al-Qaida, Taliban and their associated forces. This thesis takes as its starting point the U.S. assertion and attempts to establish whether and under what conditions this claim could be true with respect to the situation in Yemen. Thus, the subject is examined solely from an international humanitarian law (IHL) perspective, though human rights are taken into account as far as they also apply during armed conflict. Questions relating to inter-State use of force are not studied in this thesis, as the U.S. is conducting its operations with the consent of Yemen. The topic is further framed to concern only targeted killings conducted with drones, as drone technology has raised additional concern over the legality of targeted killings operations, and because drone strikes have been particularly typical way of conducting operations by the Obama administration. First of all, this thesis seeks to determine that if the U.S. drone strikes in Yemen are conducted within an armed conflict, how the conflict should be classified under IHL. IHL recognizes two types of armed conflicts: international armed conflict (IAC) and non-international armed conflict (NIAC). The U.S. position is that it is engaged in a single armed conflict with Al-Qaida and its associated forces, and that the type of the armed conflict is some kind of global non-international armed conflict. This position is rejected in this thesis. However, classification of the situation faces problems both under the law governing IAC and the law governing NIAC. Much of the study on this question regards the threshold of armed conflict. It is suggested that customary rules of IHL which are same for both IACs and NIACs could be applied to the situation between the U.S. and AQAP even if the nature of the conflict is not decisively determined. After coming to such conclusion, this thesis studies which are the rules of customary IHL applicable in both NIACs and IACs that are relevant when assessing the legality of U.S. drone strikes in Yemen. First, drone technology and drones as weapons are studied and it is concluded that even though drones are relatively new weapons IHL still applies to them, and that under the rules of IHL, drones cannot categorically be seen as illegal weapons. Focus is then turned to rules governing targeting, as it is possible that drones are used in a way which violates IHL even if they are not illegal as weapons. The following concepts are examined: principle of distinction and prohibition on indiscriminate attacks, combatant status, direct participation in hostilities and status of members of organized armed groups, principle of proportionality, feasible precautions in attack and whether there is a requirement to not kill unless necessary under IHL. Attention is then turned to human rights and it is determined that while IHL is the applicable law as lex specialis during armed conflict, if a particular killing during armed conflict violates norms of IHL, then it also violates the right to life under human rights law. Finally, it is studied whether it seems that the U.S. is abiding by the applicable rules of IHL in its actions when conducting drone strikes in Yemen. While it is acknowledged that it is a positive development that the U.S. is publishing any information related to its counterterrorism operations, it is also noted that usually the information given is too general and vague to be used in proper legality assessments. The U.S. constantly states that it adheres to all applicable law in its operations, yet mixes different legal concepts and fails to provide critical information, based on which the correctness of its claim could be determined. As long as the U.S. is not publishing detailed data on its drone strikes and on the criteria which makes an individual targetable, it is impossible to properly assess the legality of the U.S. actions. Still, some remarks can be made. It is concluded that at least some of the targeting practices the U.S. is using seem to violate rules of IHL. Brief remarks are then given on what kind of conduct amounts to serious violations of IHL under both IAC and NIAC and on the related transparency and accountability obligations of States.