HR Norms in Contemporary Armed

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American Society of International Law

Controlling the Use of Force: A Role for Human Rights Norms in Contemporary ArmedConflictAuthor(s): Kenneth WatkinSource: The American Journal of International Law, Vol. 98, No. 1 (Jan., 2004), pp. 1-34Published by: American Society of International LawStable URL: http://www.jstor.org/stable/3139252.

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CONTROLLINGTHE USE OF FORCE:A ROLE FOR HUMAN RIGHTSNORMS IN CONTEMPORARYARMED CONFLICTBy Kenneth Watkin*

According oprotesters,U.S. soldiers ired on themwithoutprovocation,killing even-teenpeopleandwoundingmorethanseventy.Accordingothe U.S.military,hesoldiersreturnedprecision ire on gunmenin the crowdwho wereshootingat them.-Human RightsWatch

The twenty-firstcentury has witnessed significant challenges to the traditional view thatinternational humanitarian lawexclusively regulates the use of force in armed conflict. Thedeath and destruction caused on September 11, 2001, reflect the increasinglycomplex natureof modern conflict. Groups that rely on the benefits of globalization and technological ad-vances to conduct operations across international borders are threatening the maintenanceof international order. Their tools of violence range from conventional weapons of war tomore modern weapons of mass destruction' and potentially asymmetric cyberattacks. 2At the same time, the proliferation of internal armed conflicts points to similarly complexsecurity challenges within nation-states. These conflicts have not alwaysattracted the sameamount of publicityas transnationalterrorism,which does not, however,make their threat tointernational and human security anyless real. In these situations,death and human sufferinglargelyemanate from readilyavailable,but relatively low-tech means, such as antipersonnelmines, the ubiquitous AK-47 rifle,3and even machetes and transistor radios.4

Increasingly, the use of force during armed conflict is being assessed through the perspec-tiveof human rightslaw,aswell asunder international humanitarian law. This articleexploresthe interface between these two normative regimes and its impact on efforts to control theuse of deadlyforce. The analysiswill outline three waysthat these twosystemsof lawinteract.First, t demonstrates that the unique threatposed bynonstate actors,combined with the lack*Colonel and DeputyJudge Advocate General/Operations, Canadian Forces. This article is based on a paperfirst presented at the New Wars,New Laws?Conference held at Cornell Law School inJune 2003 while the authorwasa visiting fellow in the Human Rights Program, Harvard Law School. The opinions expressed are those of theauthor and do not necessarily reflect the views of the government of Canada, the Canadian Forces, or the Officeof theJudge Advocate General.1Weapons of mass destruction are identified as achemical, biological, radiological, or nuclear weapon, or high-yieldexplosives n the NATIONALSTRATEGYFORCOMBATINGTERRORISM(Feb. 2003), at.2 NATIONAL STRATEGY OR HOMELANDSECURITY (July 2002), at (indicating that [t]erroristgroups are already exploiting new information technology and theInternet to plan attacks,raisefunds,spread propaganda, collect information, and communicate securely ). Asym-metric warfare has been defined as fighting for different ends, or in different ways,or with different means fromthose of one's opponent. MarkClodfelter, AirpowerVersusAsymmetricEnemies:FrameworkforEvaluatingEffectiveness,16 AIR& SPACEPOWERJ.7, 37 (2002).3Mass-produced weapons such as the AK-47 and similar small arms stand out as late-twentieth-century symbolsof warfareby the people. AsJohn Keegan notes, the industrialization of modern society militarized the popula-tions of both rich and poor states.JOHNKEEGAN,A HISTORYFWARFARE7 (Vintage Books 1994) (1993).4Not all killing results from modern weapons. The genocide of eight hundred thousand Rwandans was carriedout largely by local populations, who were spurredon by their radio station RTLM,spewing racistpropaganda,exciting Hutus to kill allTutsis as well as elements of UNAMIR omeo A.Dallaire, TheEndofInnocence: wanda1994,in HARD CHOICES:MORALDILEMMASN HUMANITARIANNTERVENTION1, 78 (Jonathan Moore ed., 1998).

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THE AMERICANJOURNALOF INTERNATIONALLAWof a consensus on the legal categorization of conflict, creates conditions in which the crim-inal law enforcement and armed conflict paradigms overlap. This overlap, in turn, directlyaffects the applicabilityof human rights law, which is most commonly associated with lawenforcement, and humanitarian law,which applies during armed conflict. As a result,forcemay be used in situations where it cannot easilybe delineated which of the two normativeframeworksgoverns.Second, byhighlighting areasof commonalityand difference, the twonormativeframeworkswillbe seen to share common values and a close connection to the development of the nation-state. Each regime has developed along a unique path shaped by the different roles a stateperformsin maintainingexternaland internalorder. Forexample, the nature and scale ofvio-lence in interstate conflict has had a distinct impact on how force is controlled under inter-national humanitarian law. In contrast, the internal use of force isnormallydealt with undera human rights paradigm.Notwithstandingthese differences, both normativeregimes maybebrought into playsimultaneously because of the nature of the violence that maybe encoun-tered during armed conflict. Such interface may occur during internal armed conflict andstates of emergency, belligerent occupation, and global terrorism.Third, this article examines the unique attributes that the human rights accountabilityframeworkbrings to the effort to control the use of force. That highly developed system ofaccountability has much to offer in terms of limiting the impact of some forms of violence,especiallywhen compared to the still evolvingaccountabilityframeworkunder internationalhumanitarian law.The pressure to applyhuman rights principles arisesin particularduringsituations more closely associatedwith governance than direct combat with an enemy force.However, the successful recourse to human rightslaw in armed conflict is likelyto require anadjustment in the application of those accountability principles. Principles developed fordomestic law enforcement may not be readily applicable to the different and often morecomplex circumstances under which force is applied during armed conflict.It is the unique interface between these twonormative frameworks that challenges the tra-ditional idea that the use of force in armed conflict is governed exclusively byinternationalhumanitarian law. Ultimately, this article argues that the issue should not be the exclusiveapplication of either frameworkbut, rather, that appropriate principles should be appliedto ensure that there are no gaps in humanitarian protection.

I. A COMPLEX LEGALENVIRONMENT

Categorizationf Conflictn the Contextof TerrorismThe complexity of the regulation of armed conflict in the twenty-firstcentury is not alwaysevident in the relevant terminology. For example, the normative frameworksfor regulatinglife and death are often discussed in terms of two distinct spheres of activity, armedcon-flict and peace. While international humanitarian lawapplies to international and nonin-ternational armed conflict and international human rightsprinciples primarilyaffect gover-nance in peacetime, especially lawenforcement, the relationship between the two is muchmore complex than this simple division of responsibilities implies. For example, human

rights lawcontinues to be applicable during armed conflict, although, as the InternationalCourt ofJustice decided in the NuclearWeapons dvisoryOpinion,5 whether there has beenan arbitrarydeprivation of the right to life is determined by international humanitarian lawacting as lexspecialis.6

5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJREP.226 (July 8).6Id., para. 25.

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provide legitimacy,14while still others deem terroristgroups with global reach as generallyamenable to being targeted with a military response.l5 It has also been suggested that theoperations in Afghanistan constituted an intervention in an internal armed conflict16or theinternationalization of a civil wAr.17

Importantly, he response to terrorismhas not been viewedsolelyin the context of an armedconflict. Some have found such threats to be more amenable to a law enforcement response18and urged that, rather han viewingthe attacksof September 11th as acts of war,they shouldhave been treated as international crimes for which the perpetratorsshould be apprehended,tried and, if convicted,punished. 19The threshold question of whether an act of terrorism can be understood as engagementin international armed conflict inevitably nvolves consideration of the numerous terms relat-ing to the use of force in the United Nations Charter: he use or threat of force, breach of thepeace, act of aggression, and armed attack. However, one finds a lack of consensus on howthese terms interactin determining whether an armedconflict exists.20Similarly,determiningthe point at which terrorist attacks constitute an armed attack is complicated by the inabilityof international legal scholars to agree on the interpretation of the International Court ofJustice's 1986Judgment in Militaryand ParamilitaryActivities n andAgainst Nicaragua.21The view of the Court in the Nicaragua ase that the use of force could be divided into twocategories, mostgrave (those constituting armed attacks) and lessgrave, and its findingof a distinctionbetween armed attacksand mere frontierincidents,appearto havesplitwritersinto two camps. 22One group sees the Court's view as narrow and unduly formalistic, so

and then concludes that [i]n such circumstances stretching the international law doctrine of self-defense toinclude a non-state actor seemed reasonable and necessary. FALK,upranote 12, at 102. CherifBassiouni observesthat international humanitarian law is binding on both state and insurgent or revolutionaryforces and then states:AlQaeda'sattacksagainst the United States on September 11 and earlier fall within this paradigm: they are subjectto the stricturesof international humanitarianlaw,regardless of the legitimacy of their perpetrators' cause. Subse-quently, he goes on to discuss the role of Afghanistan as a baseof operation. M. Cherif Bassiouni, LegalControlofInternationalTerrorism: Policy-Orientedssessment,3 HARV.NT'LLJ. 83, 100 (2002); seealsoBrown, supranote12, at 24-29.14Cassese, supranote 7, at 1000; seealsoLeilaNadyaSadat, Terrorismnd theRuleofLaw,3 WASH.U. GLOBAL TUD.L.REV.135 (2004).15Brown, supranote 12, at 24-25 (stating: Ifa non-stateactor such as a terroristorganizationcommits aggressionagainst a state, and the aggression is of sufficient scale and effect to amount to an armed attack, then the terroristorganization itself-notwithstanding its non-combatantstatus-has committed an armed attackagainst the state. )(footnote omitted)).16Fitzpatrick, supranote 7, at 350.17According to AdamRoberts,the war nAfghanistancould best be classifiedunder the informalcategoryof inter-

nationalised civilwar, n which the rules pertaining to both international and civil warsmaybe applicable in differ-ent aspects and phases of the conflict. Adam Roberts, Counter-Terrorism,rmedForce nd theLawsofWar, URVIVAL,Spring 2002, at 7, 16.18Anthony Dworkin, Revising heLawofWar oAccountforTerrorism:he CaseAgainst Updating he GenevaConven-tions,on theGroundThatChangesAreLikelynly oDamageHumanRights,FINDLAW'SWRIT:OMMENTARYFeb. 4,2003),at. Since international law does not recog-nize war with groups like Al Qaeda, Dworkin suggests that one solution, which he admits is not likely to gain U.S.support, is to limit the notion of armed conflict to interstate and civil wars,and use law enforcement means topursue Al Qaeda as a group of international terrorists.19Sadat, supranote 14, at 136.20Rein Mullerson, Self-Defensen theContemporaryWorld,n LAWANDFORCENTHENEW NTERNATIONALRDER13, 16 (Lori Fisler Damrosch &DavidJ. Scheffer eds., 1991). Greenwood notes that thecategories of threat to thepeace and armed attack are not mutuallyexclusive n arguing that the characterizationof the September 11 attacksas threats to the peace and international crimes does not mean thatthey cannot also amount to an armed attack.Greenwood, supranote 12, at 307. But seeMichael Bothe, Terrorismnd theLegalityof Pre-emptiveorce,14 EUR.J.INT'LL. 227, 229 (2003) (arguing that 'armed attack' in the sense of Article 51 is an actual armed attack,... notone which is only threatened ).21Militaryand ParamilitaryActivities n and AgainstNicaragua (Nicar.v.U.S.), Merits,1986 ICJREP.14 (June 27)[hereinafter Nicaragua].22CHRISTINEGRAY, NTERNATIONAL AWAND THE USE OFFORCE141 (2000); see also Nicaragua, 1986 ICJ REP. at101, para. 191 (referring to mostgrave and lessgrave forms of the use of force).

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2004] CONTROLLINGTHE USE OF FORCE: A ROLE FOR HUMAN RIGHTSNORMS 5restrictive that ultimatelyit willencourage aggression of a low-keykind. 23 he second groupappears to see the principle of collective self-defense, combined with a lower threshold ofarmed attack,as a threat to world peace that could lead to arisk of the internationalizationof civil conflicts and the expansion of inter-state conflicts. 24

This lack of agreement is not helpful, particularlysince the assessment of the existence ofan armed conflict is increasingly being made outside the context of a state-on-stateconflict.Avery low threshold of what constitutes an armed attack25 as the potential to blur the linesbetween armed conflict and criminallawenforcement. At the other end of the spectrum, toohigh a threshold mayleave a state at risk,especially if there is a credible threat involving theuse of weapons of mass destruction by a nonstate actor.Attacksby nonstate actors challenge the view of a neat division of armed conflict into thetwo spheres of international and noninternational.26 Identification of the boundaries ofnoninternational armed conflict has never been easy.While international humanitarian lawis generally interpreted to have limited impact in situations that do not reach a level aboveinternal disturbances and tensions, such as riots, isolated and sporadic acts of violence, 27the dividing line between the operation of that lawand human rights law is not alwaysclearor absolute.In many respects, global terrorismseems to straddle the lawenforcement and armed con-flict paradigms.Engagement in criminalactivityby terroristgroups, warlords,and other non-state actorsto finance theiroperationsaddssignificantly o the perceptionof an overlapbetweenlaw enforcement and the conduct of hostilities.28At the same time, efforts to position the useof force on the scale of the events of September 11, which included an attack on the Pen-tagon, as an exclusivelycriminal matter not constituting an armed attackappear inconsistentwith the verystrong international response based on the exercise of the rightof self-defense.2923GRAY, upranote 22, at 141 (relyingon W. Michael Reisman,AllocatingCompetenceso UseCoercionn thePost-ColdWarWorld:ractices, onditions,ndProspects,n LAWANDORCENTHENEW NTERNATIONALRDER, upranote 20, at26).24 Id. at 141-42.25YORAMDINSTEIN,WAR,AGGRESSIONANDSELF-DEFENCE74 (3d ed. 2001) (describing a de minimis non curatlexstandardof armedattack as ause of force causing human casualtiesand/or serious destruction of property ).26Greenwood, supranote 12, at 314, states that [f] ghting between the United Statesand Al-Qa'ida... appearsto fit neither of these moulds. According to Fitzpatrick, supranote 7, at 348, The September 11 attacks did notlaunch an internal armed conflict in the United States as understood in international humanitarian law. DerekJinks, September1 and theLawsofWar, 8YALEJ.NT'LL. 1 (2003), suggests that the attacksbyAl Qaeda on 9/11 werenot an international armed conflict (because there is no conflict between states), a classic internal armed conflict(because there was no control or attempt to seek to control territory), or a so-called war of national liberation.Instead, he views the conflict as an armedconflict not of an international character falling under common Arti-cle 3 of the 1949 Geneva Conventions. This approach appears somewhat counterintuitive given the abilityof suchterroristgroups to direct significant levels of violence across international borders and even continents. However,it does reflect the challenge contemporary conflict is presenting to traditional interpretations of internationalhumanitarian law.27Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victimsof Non-International Armed Conflicts, openedforsignature ec. 12,1977, Art. 1,1125 UNTS 609 [hereinafter Proto-col II];seealsoRome Statute of the InternationalCriminalCourt,July17, 1998,Art.8(2) (f), UN Doc. A/CONF.183/9*(1998), reprintedn37 ILM999 (1998), correctedthroughMay8, 2000, byUN Doc. CN.177.2000.TREATIES-5hereinafterICC Statute].28Bassiouni has noted that [g] lobalization has... allowed terroristgroups to network with one another, permit-ting terroristgroups to develop strategicalliances with other groups engaged in transnationalcriminality n order todevelop synergetic connections and to maximize respective capabilities and effectiveness. Bassiouni, supranote13, at 88; seealsoJOHNK.COOLEY,NHOLYWARS:FGHANISTAN,MERICAANDNTERNATIONALERRORISM27 (2ded. 2000) (observing that all sides in the Afghan warsprior to September 11 useddrugs as an actual weapon andas a source of finance, [which] gave this monstrous and lucrative international business a decisive push forward ).29Greenwood, supranote 12, at 310-11 (containing the text of the United States and United Kingdom lettersto the UN Security Council outlining their reliance on the right of self-defense enshrined in Article 51 of the UNCharter); Murphy, supranote 11, at 45-51. International recognition of the exercise of the right to self-defenseis reflected in Security Council Resolutions 1368 (Sept. 12, 2001), 40 ILM1277 (2001) and 1373 (Sept. 28, 2001),40 ILMat 1278, the invocation of Article 5 of the Washington Treaty by the North Atlantic Council, NATO PressRelease (2001) 124, Statement by the North AtlanticCouncil (Sept. 12, 2001), 40 ILM at 1267, and the Australian/United Statesinvocation of Article IV of the ANZUSTreaty,Media Release, Application of ANZUSTreatyto TerroristAttacks on the United States (Sept. 14, 2001), at .


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Apparently, the challenge of international terrorism does not need to be dealt with exclu-sivelyunder either criminal law or the lawof armed conflict. Indeed, Sean Murphyhas sug-gested that the September 11 incidents be seen in exactly this way.30The criminal natureof the members of Al Qaeda is reflected in their being equated with pirates.31However, thecategorizationof groups likeAl Qaedaas international criminals32 oes not change the natureor scope of the threat they pose to their targets.Concern has been expressed, though, that shifting counterterrorism action from a crimecontrol to an armed conflict model would displacehuman rightsnorms as the primary egalconstraint on counter-terroristtactics. 33 ut such a shift might also be viewed as a change inemphasisratherthan a complete displacementof the lawenforcement option.34 n thisrespect,the determination in the immediate aftermath of September 11 that the attacks triggeredthe right of self-defense brought with it the application of international humanitarian law.35Some commentators, however,havenot been as concerned about the threatposed byAl Qaedaand the Taliban as about how far the net of the broader waron terrorism may be cast.36NonstateActors

A separate, but closely linked, issue is the nonstate status of some of the participants inarmed conflict. The term nonstate can be misleading, as it largelyrelates to private par-ticipants37n a conflict, as opposed to those who may be irregularforces belonging to 38state.Categorizingthese privateactorsis made more difficultbythe increasinguse of the ter-rorist abel. A definition of terrorism has yet to be agreed upon,39and proposed versionssometimes show a preference for limiting it to the criminal sphere40or nonstate activity.41

30Murphy,supranote 11,at 49; seealsoCassese, supranote 7, at 1000 (stating that [i]n addition to using militaryforce the US should also aim at bringing hepersons ccusedofthecrimestojustice );Greenwood, supranote 12, at 305.31Ruth Wedgwood, Al Qaeda,Terrorism,nd MilitaryCommissions,6 AJIL328, 329 (2002).32SeeOPPENHEIM'SNTERNATIONALAW 46 (RobertJennings &Arthur Watts eds., 9th ed. 1996) (describingpiracy as an 'international crime', the pirate is considered the enemy of every state ).33JoanFitzpatrick, SpeakingLaw toPower:The WarAgainst Terrorismnd Human Rights,14 EUR.J.INT'LL. 241,246 (2003).34UN Security Council Resolution 1373, supranote 29, outlines numerous steps related to law enforcement forcountering terrorist acts. Similarly,the U.S. NATIONALTRATEGYORCOMBATINGERRORISM,upranote 1, at 15,which describes the terrorist threat in terms of a war,outlines a multifaceted approach to that threat, including theuse of diplomatic, economic, information, lawenforcement, military, inancial, intelligence, and other instrumentsof power. SeealsoMichael Ignatieff, HumanRights,theLawsof Warand Terrorism,9 SOC.RES.1137, 1145 (2002)(suggesting that the type of law to be applied should depend on whether the action against Al Qaeda is primarilya military or a civilian police operation).5Seesupranote 29.36Falkexpressed concern over the empowerment of other states tointensify violence against their own oppo-nents ; the provision of support to repressive regimes allied in the war on terror; the potential for weakeninginternational humanitarian law;the bypassing of the United Nations; and the potential for abuse of the just wardoctrine. FALK,upranote 12,at 112-28; seealsoFitzpatrick, upranote 7, at 347;Fitzpatrick, upranote 33, at 244-45.But seeAbrahamD. Sofaer, OntheNecessity fPre-emption,4 EUR.J. NT'LL. 209,225 (2003) (stating that 1]ookingat the 'war'on terrorism thus far, the concept of pre-emption is being applied in a responsible manner, thoughsome statements made by the current Administration might have suggested a broader application ).37Grotius defines war as the condition of those contending by force, noting that the root of the word bellumis derived from the oldword duellem. he de facto concept of warwas not limited to public warbetween twosovereigns. He notes that privatewar is more ancient than public war and has, incontestably, the same nature aspublic war;wherefore both should be designated byone and the same term. 2 HUGOGROTIUS,EJUREELLICPACISIBRI RES3 (FrancisW. Kelsey trans., Carnegie ed. 1925) (1646).38Geneva Convention No. III, supranote 10, Art. 4(2).39Cassese, supranote 7, at 994. A common thread in many definitions has been the connection with killing for

politicallymotivatedpurposes. Bassiouni, supranote 13,at 84 (defining terrorism as astrategyof violence designedto instill terror in a segment of society in order to achieve a power-outcome, propagandize a cause, or inflict harmforvengeful political purposes );seealsoGRANTWARDLAW,OLITICALTERRORISM-10 (1982) (distinguishingbetweenacts of terror, which may be carried out by criminals, mentally unstable persons, etc., and terrorism, which isdefined by its high symbolic content ).40Philip Heymann points out that the definition of terrorism byacademics often has a farmore moral or crim-inal flavor than state definitions suggesting that terrorists are hostile forces acting for political purposes. In his

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However, it has been acknowledged that illegitimate acts of terror can occur during armedconflict, or otherwisebe carriedout byand on behalf of states.42Although the terrorist abelcan expressmoral condemnation and focus attention on the nature of the threatposed bythecriminal act,43 he vagueness of the term makes it an imperfect vehicle for definitively deter-mining if the alleged perpetrators are involved in an armed conflict.Persons with no or little connection to the armed forces of a state have regularly partici-pated in hostilities within the context of international armed conflict.44The classiccase out-lining the grounds for self-defense under international law,the Carolinedispute, hasbecomethe common historicalexample of a cross-borderconflict between stateand nonstate actors.45Nevertheless, sortingout the statusof nonstate participants n armed conflict has challengedinternational humanitarian law since the earliest attempts at codification. The provisionsof Additional Protocol I to the 1949 Geneva Conventions, although not accepted bycertainsignificant states,46marked an important milestone byproviding the qualifyingarmed forcesof nonstate national liberation movements with combatant status.47Still, there remains adiverse range of state and nonstate participants in international armed conflict who can betermed unprivileged belligerents or unlawfulcombatants. 48These nonstate actors,whodo not qualifyfor combatant status,often participate in hostilities on a level and at a degreeof intensity equal to those of the regular armed forces and legitimate irregular forces.The status of participants in noninternational armed conflict is more easily discerned,thanks to the general reluctance of nation-states to accord anylegitimate status to insurgent

view, violence against civilians in the context of a guerrilla war or during a war between states is not consideredterrorism in many contexts simply because it is not subject to the same remedies (which are designed for timesof peace). PHILIPB. HEYMANN,TERRORISMANDAMERICA (1998).41The U.S. government recently defined terrorism as premeditated, politically motivated violence perpetratedagainstnoncombatant targetsbysubnationalgroups or clandestine agents (emphasis added). NATIONALTRATEGYFORCOMBATINGERRORISM,upranote 1, at 1.42 Statesoften use a definition of terrorismthat is limited to nonstate actors.However, terror in itsbroadest sensehas been and remains a part of warfare. Statesengaged in armed conflict may legitimatelyattempt to instill fear inan opponent, but a]cts or threats of violence the primarypurpose of which is to spread terroramong the civilianpopulation are prohibited. Protocol Additional to the Geneva Conventions of 12August 1949, and Relating to theProtection of Victims of International Armed Conflicts, openedfor ignatureDec. 12, 1977, Art.51(2), 1125 UNTS 3[hereinafter Protocol I]. States can commit illegitimate acts of terror. SeeFALK,upranote 12, at 109; CHARLESTOWNSHEND,TERRORISM: VERYSHORTINTRODUCTION -8 (2002); WARDLAW, upra note 39, at 9.43Terrorism ultimatelyrefers to acts that are already illegal under domestic and international law, including thelaw regulating armed conflict. TOWNSHEND,upranote 42, at 5.44While forming only a small partof his discussion of people in arms, Clausewitzprovides insight into how warwas changing in Europe at the beginning of the nineteenth century, including insurgent operations with all the

attributes of guerrilla warfare.CARL ONCLAUSEWITZ,N WAR 79 (Michael Howard & Peter Paret trans. & eds.,1976). In the 1863 Lieber Code, armed individuals or groups participatingin conflict without authorityare classifiedas highwayrobbers or pirates, armedprowlers, or war-rebels. .S. WarDep't, Instructions for the Governmentof Armies of the United Statesin the Field, General Orders No. 100,Arts.82, 84, 85 (Apr.24, 1863), reprintednTHELAWS FARMEDCONFLICTS (Dietrich Schindler &Jifi Toman eds., 3d rev. ed. 1988) [hereinafter Lieber Code].45SeeGreenwood, supranote 12, at 308; seealsoSofaer, supranote 36, at 209 (general discussion of the Carolinedispute).46Asof November 9, 2003, a total of 191 stateswere parties to the 1949 Geneva Conventions; 161 countries wereparties to Protocol I;and 156 were parties to Protocol II.The 30 countries that are not parties to Protocol I includeIndia, Indonesia, Iran, Iraq, Israel,Japan, Pakistan, and the United States.47As Green notes, [T]o some extent certain non-international conflicts have come under the aegis of interna-tional law since 1977 with the adoption of Article 1(4) of Protocol I and Protocol IIadditional to the 1949 GenevaConventions .. . GREEN,upranote 8, at 55-56. On national liberation movements, see note 72 infra.48International humanitarian law has alwaysstruggled with how to deal with and categorize persons who do notqualifyfor combatant status butparticipate directly in hostilities.They havevariouslybeen termed unlawfulbellig-erents, unlawful ombatants, unprivilegedbelligerents, orsimply enemycombatants. Spiesand saboteursoper-ating behind enemy lines out of uniform are considered to be unprivilegedbelligerents and therefore not entitledto combatantor prisoner-of-wartatus.RichardR Baxter,So-calledUnpriviegedelligereny:Spies,Guerrillas,ndSaboteurs,1951 BRIT.Y.B.NT'LL. 323, 328 (defining unprivileged belligerents as personswho are not entitled to treatmenteither as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conductwithout meeting the qualifications established byArticle 4 of the Geneva Prisoners of WarConvention of 1949 ).

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groups.49Thus, a state can be engaged in an armed conflict with an insurgent or revolution-ary group, irrespective of that group's legitimacy, and vice versa. 50ControllingDeadlyForce

The nature of the violence that can occur during, or contemporaneously with, an armedconflict also playsa role in the determination of the applicable regime. The use of force inan armed conflict might be considered, in a traditional sense, as aggression, self-defense,humanitarianintervention, or the exercise of self-determination.However,as is evident fromthe obligation to maintain security in occupied territory,force mayalso be applied in exer-cising whatmight normallybe seen as a policing function, such asmaintaining public order,quelling riotsand disturbances,and countering criminalacts.Notwithstandingthe broadcon-text in which the use of force might be considered, this analysisfocuses on the applicationof deadlyforce, that is, force capable of causing death or serious injury.

Although this focus mayappear narrow,the means for applyingdeadly force in contempo-raryarmed conflict are exceptionally broad. Thus, an attack on the computer network con-trolling a watersupplyrepresents the latest ingenious means of applying force that can havea deadly effect.51Computer technology has been combined with information gathering andprecision weapons to target opposing leaders in perhaps one of the most obvious and emo-tional manifestations of the changing circumstances in which deadly force is being used.Recent examples can be found acrossthe broadspectrumof conflict and include the attemptto kill President Saddam Hussein at the startof the conflict in Iraq,52he targeting of Pales-tinian resistance eadersin the Israeli-occupied erritories,53nd the killingof suspected Qaedaterrorists in Yemen.54Since military orces might be asked to participate n a wide range of operations,other, lesstraditionalapplicationsof force, such as less-than-lethalweapons55 nd riot control agents,mayenter into the equation.Despite theirintended less-than-lethal ffect, such options often retainthe potential for death or serious injury56nd must therefore be closelycontrolled as well.

49Gerald L. Neuman, Humanitarian Law and Counterterroristorce,14 EUR.J.INT'LL. 283, 297 (2003); see alsoWaldemarA. Solf, TheStatusofCombatantsn Non-InternationalArmedonflictsUnderDomesticaw and TransnationalPractice, 33 AM. U. L. REV.53, 58-59 (1983). As noted in LINDSAYMOIR, THE LAWOFINTERNALARMEDCONFLICT60 (2002), Once rebels are captured, or otherwise rendered unable to continue fighting, ... they become horsde combatnd are entitled to the same level of humane treatment as civilians.Their legal statusnevertheless remainsunchanged, exposing them to the full force of the State's criminal law.50 Bassiouni, supranote 13, at 99.51 Dinstein notes that ifsuch an assaultwould cause fatalities (resulting e.g. from the shutdown of computers con-trolling waterworksand dams, with a consequent flooding of inhabited areas), it would qualify as armed attack.DINSTEIN,supranote 25, at 166-67; see also GREGRATTRAY,TRATEGICWARFARENCYBERSPACE0 (2001) (indicatingthat sucha microforce, fappliedto shuttingdowna nuclearplant,could be equatedto aweaponof massdestruction).52RajivChandrasekaran& Thomas E. Ricks, U.S.OpensWarwithStrikes nBaghdadAimed tHussein,WASH.POST,Mar.3, 2003, at Al.53For a discussion of the Israeli approach to targeting, see Molly Moore, Israel'sLethalWeapon f Choice,WASH.POST, une 29, 2003, at Al.54 A missile strike from a Predator drone aircraft in November 2002 killed six suspected members of Al Qaedain Yemen. DavidJohnston & David E. Sanger, Fatal Strike n YemenWasBasedon Rules Setout byBush,N.Y.TIMES,Nov. 6, 2002, atA16 (stating that [t]he missile strike represented a tougher phase of the campaign against terrorand moved the Bush administration awayfrom the law enforcement-based tactics of arrests and detentions ofQaeda suspects that it had employed outside Afghanistan in the months since the fighting there ended ).55 n the United States, research into less-than-lethalweapons for lawenforcement, corrections, and militarypersonnel has included work on blunt-traumaprojectileweapons, pepper spray orbarricadescenarios,technologyfordisorienting suspects,and electric-shockweapons.Hearing of the Subcommittee on Aviationof the [House] Com-

mittee on Transportation and Infrastructure (May2, 2002) (statement of SarahV. Hart, director of the NationalInstitute ofJustice), available n LEXIS,Legis Library,Fednew File.56For example, in October 2002, RussianSpecial Forces used Fentanyl, a synthetic anesthetic, in an attempt toincapacitate a Chechen rebel group that had seized a theater in Moscow, causing the death of a large number ofhostages. The U.S. National InstituteofJustice has researched the use of Fentanyl drugs as nonlethal weapons, butin the form of a dart and not a gas.John Bowman,RussianKnock-out as,CBC NewsOnline, Oct. 28,2002, at.

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2004] CONTROLLINGTHE USE OF FORCE:A ROLE FOR HUMAN RIGHTS NORMSEven though the approach to terrorism assolely a law enforcement responsibility is being

challenged bythe categorizationof terroristacts as armed conflict, the change brought aboutby the complexity of contemporary conflict is not moving entirely in one direction. Theapproach to the control of force in armed conflict as the exclusive domain of internationalhumanitarian law is facing an intensified effort to have it encompass human rights normsand their associated accountability structure. This analysisnow turns to the impact of thosehuman rightsnorms on regulating the use of force in contemporaryconflict and their poten-tial for regulating these complex security situations in the future.

II. THE RIGHT TO LIFE: COMMON GROUNDFor some, the discussion of any killing is problematic. The rightto life is a deeply held

principle that is protected in times of both peace and war. A common startingpoint of bothhuman rightsand humanitarian law is respect for human values and the dignityof the humanperson. The two normativeregimes sharea common 'core' of fundamental standardswhichare applicable at all times, in all circumstances and to all parties, and from which no deroga-tion is permitted. 57t has been noted that [w]hen life is deprived, it is impossible to enjoyany fundamental freedom. 58This fundamental status makes it tempting to consider the right to life in unqualifiedterms.However, the absolute nature of the right is challenged by the need to maintain orderin society, both domestically and internationally, which may occasionally lead to the use ofdeadly force. The interpretation of the right to life as absolute is often linked to pacifism,59but, as the earlyChristianchurch discovered,pacifismcan conflict with the obligationsof gov-ernance. As a result, 'just war theory, which authorized warfare as a Christian activity,wasdeveloped as that religion became linkedwith the secular power of the Empire. 6? ince thestate has the right and the duty to guarantee the security of its citizens, it may be requiredto use deadly force, although its power is not unlimited and its actions are subject o lawandmorality. 61Members of the armedforces and civiliansenjoy the samefundamental right to life, but thatright is limited by the different societal demands according to which human rightsand inter-national humanitarian lawoperate. The normative frameworkof international humanitarianlaw differs in many respects from that of international human rights law. One fundamentaldifference is thathumanitarian awrequiresthe balancingof humanity62withmilitarynecessity.

57Prosecutor v. Delalic, AppealsJudgment, No. IT-96-21-A, para. 149 (Feb. 20, 2001) (Celebici case); see alsoTheodor Meron, TheHumanizationofHumanitarianLaw,94 AJIL239, 266-67 (2000).58Yoram Dinstein, Terrorisms an InternationalCrime,1987 ISR.Y.B.HUM.RTS.55, 63; seealso Inter-AmericanCommission on Human Rights, Report on Terrorism and Human Rights,OEA/Ser.L/V/II. 116,doc. 5, rev.1corr.,para.81 (Oct. 22,2002), availableat [hereinafterOASReporton Terrorism].59Ignatieff, supranote 34, at 1144. The depth of the proscription against the taking of life among early Chris-tians is reflected in the view that there wasno lack of those who did not indeed disapprove of public war,but whothought that in the case of an individual self-defence was forbidden. GROTIUS,supranote 37, at 93.60IANBROWNLIE,NTERNATIONALLAWANDHEUSEOFFORCEBYSTATES (1963); seealso COLMMCKEOGH, NNO-CENT IVILIANS:HEMORALITYFKILLINGNWAR19-22 (2002) (indicating thatAugustine's workonjust war theorywaspartlymotivated in reaction to the levelingof blame at the pacifistchurchfor the downfall of the RomanEmpire).61 OASReport on Terrorism, supranote 58, para. 107 (quoting Neira Alegria Case,20 Inter-Am.Ct. H.R. (ser. A)para. 75 (1995)).62 Robin Coupland points out that there are alternative definitions of humanity, one being the human race;mankind; human beings collectively ;and another, the character or qualityof being humane; behaviour or dispo-sition towards others such as befits a human being. Robin Coupland, Humanity:What sItandHowDoesItInfluenceInternationalLaw? INT'LREV.REDCROSS, ec. 2001, at 969,972 (quoting 7 OXFORDENGLISHDICTIONARY76 (2ded. 1989)). Coupland makes a strong argument for viewing humanity n an interrelated fashion with physicalsecurity and health so as to reinforce its place in the legal dialogue of international humanitarian law. However,Green, supranote 8, at 56, notes that thepurpose of the law of armed conflict is to a great extent directed to thepreservationof the principles of humanitarianism. It is in the context of principle and behavior that humanity hastraditionally been balanced against military necessity.

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THE AMERICANJOURNALOF INTERNATIONALLAWA primary goal of military necessity is the submission of the enemy at the earliest possiblemoment with the least possible expenditure of personnel and resources. Itjustifies the appli-cation of force not prohibited by international law. Because armed conflict largely consistsof the applicationof deadlyforce, this balancingwith humanityforms a majorand highly vis-ible part of international humanitarian law.This aspect of international humanitarian law sometimes leaves the impression that, incontrast, human rights law is absolute in nature. However, that normative structure mustalso account for the taking of life so as to maintain social order. Although legally sanctionedkilling is often considered in the context of the death penalty, the right to life is also limitedby competing interests such as the right to self-defense, acting to defend others, the preven-tion of serious crimes involvinga gravethreat to life or serious injury,and the use of force toarrestor prevent the escape of persons presenting such threats.63On the other hand, the use of deadly force is strictlylimited by the requirement that aperson not be arbitrarily eprived of life.64Examples of such limitations are found in Arti-cle 2 of the European Convention for the Protection of Human Rights and FundamentalFreedoms, which provides that the right to life is not contravened where no more force thanis absolutelynecessaryis used in defence of anyperson from unlawfulviolence, inorder toeffect a lawful arrestor to prevent escape of a person lawfullydetained, or inaction lawfullytaken for the purposeof quellinga riot or insurrection. 65he Convention alsomakes an excep-tion for deaths resulting from lawful acts of war. 66

Despite the differences between internationalhumanitarianlaw and human rightslaw,theyexhibitacommonalityof content that causes them to converge.67Human rightsnorms reflectedin the Universal Declaration of Human Rightsand the other post-UN Charter human rightsdocuments have had a significant impact, producinga large measure of parallelismbetweennorms,and agrowingmeasure of convergence in theirpersonaland territorialapplicability. 68Further,while international humanitarian law has attained a relatively high level of codifica-tion and acceptance of customary law norms with respect to international armed conflict,it is less clearlydefined withregardto internal conflicts.69This feature inevitablyinvitescloseinteraction between the two normative regimes, particularlywhen nonstate actors operatewithin an enemy state, in occupied territories, or with respect to internal armed conflicts.

III. THE ROLE OF THE STATEEventhough human rights awand the lawgoverningarmed conflictsharerespectfor humanvalues,the frameworkswithin which theytraditionally perate aresignificantlydifferent.Those63BasicPrincipleson the Use of Force and FirearmsbyLawEnforcementOfficials,UN Doc.A/CONF.144/28/Rev. 1,at 112, para.9 (1990), availableat [hereinafter BasicPrinciples].64International Covenanton Civil and PoliticalRights,Dec. 16, 1966,Art.6(1), 999 UNTS 171 (providing: Everyhuman being has the inherent right to life. This right shall be protected bylaw. No one shall be arbitrarilydeprivedof his life. ).65European Convention on the Protection of Human Rights and Fundamental Freedoms, openedor signatureNov. 4, 1950, Art. 2, 213 UNTS 221.66Id., Art. 15(2).67Examples of the parallelismof content include theright to life; the prohibition of tortureand cruel, inhuman,or degrading treatment or punishment; arbitraryarrestor detention; discrimination on grounds of race, sex, lan-guage, or religion; and due process of law. Meron, supranote 57, at 266.68Id. at 245; seealsoDale Stephens, HumanRightsandArmedConflict-TheAdvisoryOpinionoftheInternationalCourtofJustice n theNuclear Weapons Case,4 YALEHUM.RTS.& DEV.LJ. 1, 3 (2001) (suggesting that the AdvisoryOpinion is a significant statement on the convergence of humanitarian principles between the lawof armed con-flict and international human rights law ).69 For example, common Article 3 of the four 1949 Geneva Conventions and Additional Protocol IIare impor-tant in terms of providing humanitarian protection to victims of internal conflict, but they do not provide the levelof detail or scope of protection afforded by the codified law governing international armed conflict.

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differences have been uniquely shaped bythe role that nation-states have long performed inmaintaining external and internal order. Byexploring the unique nature of both interstateand intrastateconflicts, the application of human rightslawin regulating armed conflict canbe properly situated.InterstateConflict

The state's monopolization of violence is one context in which to analyze internationalhumanitarian law. The existence of a single or rightauthority to govern conflict is closelylinked to the concepts of public and privatewar70 nd the rise of organized society out of thefeudal structure of the Middle Ages. A keyelement to establishing order wascontrolling theabilityof privateindividuals to engage in hostilities. The ultimate authority to use force wasconcentrated in the hands of a sovereign. The exclusive role of the governing authority insuppressing privatewarandwaging publicwarcontinued as control of societyproceeded fromthe church to the sovereign and, finally, to the nation-state with the Treaty of Westphaliain 1648.71A continuing effect of the right authority principle is that the state remains the primarylegitimate authorityfor engaging in publicwars. Control over what wasonce termed privatewaris similarlyconcentrated in the hands of the state. Following WorldWarII, the acknowl-edgment of a right to self-determination eventually resulted in the inclusion of national lib-eration movements in AdditionalProtocolI72as one of the authorities hatmight legitimatelyengage in public war. Evenso, while interpretations as to which groups might qualifyfor thisstatus vary,some legal scholars have noted that this provision operates as only a relativelyminor change in the preexisting law.73Analysisof the abilityof national liberationmovementsto fulfill the statelike role provided for in Additional Protocol I has included questions aboutwhether guerrillaforces can realisticallybe expected to meet all the requirements of the Pro-tocol, such as compliance with the stringent rules governing the housing and treatment ofprisonersof war.However,allparticipantsin armed conflict remain obligated to complywithinternational humanitarianlaw.74 s a result,statesremainprimarilyresponsible for engagingin public war.The organization of the state, and in particularits claim to a monopoly of violence for themaintenance of external and internal order, has a direct impact on the normative regimesthat govern its use of force. As Vattel indicated, warwascarried on in the name of the sover-eign, and individual members of the armed forces and thosebywhose agency the sovereign

70War is referred to here in a factual ense. Seesupranote 9.71BROWNLIE,supranote 60,at3-13.72The term national liberation movements is used generically to describe peoples [who] are fighting againstcolonial domination and alien occupation and againstracistregimes in the exercise of their right of self-determina-tion, as provided for in Protocol I, supranote 42, Art. 1(4).73George H. Aldrich, ProspectsforUnitedStatesRatificationofAdditionalProtocol tothe 1949 GenevaConventions,85 AJIL1, 4-6 (1991); Hans-Peter Gasser,An AppealforRatification y heUnitedStates,81 AJIL912, 916-17 (1987);seealsoTheodor Meron, TheTimeHas Comefor he UnitedStates oRatifyGenevaProtocol, 88 AJIL678, 683 (1994).There is, however, no guarantee that the scope of the provision on national liberation movements engaged in self-determination will be so narrowlyinterpreted, although it has been noted that a broader interpretation canonlyoccur if the practice of States in this regard undergoes considerable change. Christopher Greenwood, Terrorismand HumanitarianLaw-The DebateoverAdditional Protocol , 1989 ISR.Y.B.HUM.RTS.187, 194-95.74Hans-Peter Gasser,ActsofTerror, Terrorism nd InternationalHumanitarianLaw,INT'LREV. REDCROSS,Sept.2002, at 547, 563 (stating: Anycombatant who chooses to engage in guerrillawarfareremains bound to respect allrules on the conduct of militaryoperations and the protection of civilians.There will be no excuse if he combines(legitimate) guerrillawarfarewith a (criminal) terroristcampaign. ); seealsoHOWARD. LEVIE,PRISONERSOFWARININTERNATIONALARMEDONFLICT0-52 (InternationalLawStudies No. 59, 1978); FritsKalshoven, ThePositionofGuerrillaFightersUnder he Lawof War,11 MIL.L. & L. WARREV. 5, 81-82 (1972); W. Thomas Mallison & SallyV.Mallison, TheJuridical tatusof rregularCombatantsUnder he nternationalHumanitarian awofArmedConflict, CASEW. RES.J. NT'LL. 39, 58-63 (1977).

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makes war,are only instruments in his hands. 75Warfare is ultimately conducted as a groupactivity,which has become a defining principle of the modern concept of combatancy.76 naddition, the pooling of the considerable technological and human resources of the statehas profoundly affected warfare. It has been suggested that modern means of death anddestruction would never have been possible without the state, its ministryof defense, ... andits regular, uniformed, bureaucratically managed armed forces. 77

Assessing the extent to which international humanitarian lawapplies to internal conflictshas also centered on the issue of the rightauthority to engage in conflict. Whether move-ments seeking to liberate populations from the tyranny f governments can legally fulfillthat role has been widelydebated, but the power to wage public warand authorize its agentsto use force is solidly entrenched in positive law terms in the state.78Interstate belligerencies differ significantlyfrom situations of internal conflict because ofthe lack of a single internationalgoverning authority. Clearly, he relationshipsbetween statesare not governed exclusively by resorting to the use of force,79but the absence of both mul-tilateraland domestic enforcement regimes... has resulted in making interstatecooperationin penal matters cumbersome, lengthy, and, more often than not, ineffective. 80However,if alternativemeans of controlling terroristviolence are either ineffective or not available,thestate may be driven to consider the use of militaryforce to remove or neutralize a threat.In comparison to the powerenjoyed bya statedomestically,control over violent individualsor groupsunder the international legal regime must depend on less certain means. Althoughthe UN SecurityCouncilarguablyoperatesas a formof rightauthority, hatbodycan becomemired in political stalemates that hinder its ability to regulate the use of force.81The deci-sion to act collectively and individuallyin self-defense set out in Article 51 of the UN Charteris left to the involved statesthemselves,at leastuntil the SecurityCouncil hastaken measuresnecessary to maintain international peace and security.Finally,whateveradvantage technology hasprovidedto nonstate actors,nation-states emainthe true engines of technological advancement. As a result, interstate conflict, as well asoperations against nonstate actors, may bring destruction to areas previously thought safefrom attack.82

75EMMERICH EVATTEL,THELAWOFNATIONS,bk. III,ch. II, ?6 (Joseph Chittyed., 1834) (Gaunt reprint 2001)(1758). Here Vattel wasrelying on Grotius's view that the sovereign was the principal actor and the instrumentswere men who take up arms. SeealsoMCKEOGH,upranote 60, at 109.76This theme wasreflected in the writings ofJean-JacquesRousseau where he explained thatwar was a relationbetween statesratherthan men. MCKEOGH,upranote 60, at 121.See also infranote 114for a discussion of the groupcharacteristics of combatancy.77MARTINVANCREVELD,THE RISEAND DECLINEOFTHE STATE249 (1999); see also WARDTHOMAS,THE ETHICSOFDESTRUCTION2 (2001) (discussing the link between the organization of the state and the maintenance of mili-taryforces).78Forexample, MICHAELWALZER,JUSTANDNJUSTWARS85-86 n.* (1977), suggests thatwarrightsshould attachto guerrillaforces on the basisof the degree of civiliansupport theyhave whenthe people 'look after' the guerrillas.While this theory has some resonance with respect to the recognition of national liberation movements underAdditional Protocol I, the state has remained the primarylegitimate authority. Seesupranote 73.79Internationalagreements, the acceptance bystates of customarynorms, the existence of the International CourtofJustice, and the creation of international criminal tribunals and courts point to the availabilityof alternativemechanisms to avoid and resolve disputes.Forexample, international and regional cooperation bystates in dealingwith terrorism can be effected through treaties, the implementation of extradition, mutual legal assistance, infor-mation sharing, the freezing of financial assets,immigration controls, and the prosecution and punishment of theperpetrators. OAS Report on Terrorism, supranote 58, paras. 33-35; Bassiouni, supranote 13, at 94.80Bassiouni, supranote 13, at 95.81It has been suggested that the Security Council lacks the cohesion, sovereignty, and effective chain of com-mand for militaryforces necessaryfor the exercise of international statecraft. JAMESURNERJOHNSON,ORALITYAND CONTEMPORARY ARFARE 0-61 (1999).82The future holds the prospect of global targeting by remotely piloted hypersonic aircraftcapable of hittingtargetsnine thousand miles away rom the launching point MaximKniazkov,U.S.LaunchesEffortoDevelopHypersonicStrikeCapability,Agence-France Presse,July 2, 2003, available n LEXIS,News Library,Wires File.

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In contrast, states deal with internal threats in an entirely different way.Internal controlis both more invasiveand, to a significant degree, more subtle than the control exercised ininterstaterelationships.It does not depend exclusively,or even primarily,on the direct appli-cation of force.83Rather,emphasis has been placed on maintaining order through the appli-cation of the rule of law.84The development of police and security forces is directly linked to the ascendancy of thenation-state.John Keegan observes that t]he civilised societies in which we best like to liveare governed by law,which means that they are policed, and policing is a form of coercion. 85The development of moder police forces is related to a confluence of factors,including thethreat posed bystanding armies if their efforts were turned to policing; the elevation of theright to propertyas an inalienable law of nature; the disarming of the upper classes;and themovement of populations to cities as a consequence of industrialization.86The state has theabilityto integrate itself into the lives of its citizens and control their activities,for example,by conducting electronic eavesdroppingand surveillancewhere authorized.More important,the state normallymaintains an effective human intelligence-gathering apparatus, operatedbyuniformed and nonuniformed police and domestic securityagencies. The control of inter-nal violence is most directly associated with law enforcement.The level of state control and intervention raisessignificantissuesof privacyand the poten-tialfor abuse. The Reign of Terror launched bythe generator of the levee nmasse,he FrenchNationalAssembly, ntroducedthe term terror nto the moder lexicon.87 tisno coincidencethat efforts to control the power of the state and its impact on individual citizens spawnedhuman rights norms. Human rights are generally concerned with the organization of Statepowervis-a-vishe individual and, assuch, found their natural expression in domestic con-stitutional law. 88 his focus on the individual in respect of power wielded by the state is fun-damental to international human rights law.Within states the application of human rightsnorms reflects the challenges associated withmaintaining order. Some human rights maybe derogated from during emergencies o facil-itate the maintenance of public order. While the exercise of such powers is controversial andby law strictlycontrolled, their existence demonstrates that internal threats to the securityof the state can reach the level of interfering with governance.89That derogations are not

83As Christopher Morrisargues, states' reliance on force or sanctions is often exaggerated. Statesexert controlbyavarietyof behaviors,including taxes, licensing, establishingstandards or action, and exercising the right to adju-dicate. Governing by the will of the people isanother obvious multiplier of the state's power to compel obedience.CHRISTOPHERW.ORRIS,NESSAYONHEMODERNTATE99-204 (1998). Van Creveld, in referring to the roleof the state in disciplining the people, indicates that its gripon society is the product not only of the develop-ment of specialized police forces and prison systems,but also ofstate-run educational systemsand social legislationgoverning work and health. VANCREVELD,upranote 77, at 205-24.

84 IANBROWNLIE,THE RULEOFLAWNINTERNATIONAL FFAIRS 13 (1998), identifies elements of the rule of lawas: the powers of officials must be based on authority conferred by law;the law must conform to standards of sub-stantialand proceduraljustice; the powers of the executive, the legislature, and thejudicial function must be sepa-rated;thejudiciary should not be subjectto the control of the executive;and all legal persons are subjectto the rulesof law. SeealsoReference reSecession of Quebec, [1998] 2 S.C.R. 217, 257-58.85KEEGAN,upranote 3, at 386.86VAN CREVELD,supranote 77, at 206-07.87TOWNSHEND, supranote 42, at 36-37.88 RobertKolb, TheRelationship etweennternationalHumanitarianLaw and HumanRightsLaw:A BriefHistory fthe1948 UniversalDeclarationofHumanRightsandthe1949 GenevaConventions,8 INT'LREV.REDCROSS09, 410 (1998).89For example, the International Covenant on Civil and Political Rights, supranote 64, Art. 4, the EuropeanConvention for Human Rights, supranote 65, Art. 15, and the American Convention on Human Rights, Nov. 22,1969, Art. 27, 1144 UNTS 123, all provide for the suspension of certain rights in times of crisis like wars and emer-gencies. On the use of derogations in respect of terroristactivity, ee Sabine von Schorlemer, HumanRights:Substan-tiveand InstitutionalImplications ftheWarAgainstTerrorism,4 EUR.J. NT'LL. 265, 278-80 (2003); seealso HernanMontealegre, TheCompatibilityfa StateParty'sDerogationUnderHumanRightsConventionswithIts ObligationsUnderProtocol I and CommonArticle3, 33 AM.U. L. REV.41, 41-45 (1983).

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permitted with regard to the right to life is a strong statement of the fundamental impor-tance of that right.At the same time, anyone interpreting the right to life must be preparedto deal with situations, such as emergencies, where a significant degree of violence is beingthreatened or used.As important as civilian police forces are to the maintenance of internal order, the polic-

ing of a state is not alwaysa function of civilpolice alone. Some states employ securityforcesof a paramilitary atureor legallyempowermilitary orces to performinternalpolicing duties.90In some cases modem terrorism has stimulated the substantial militarizationof police forces.Thus, different states mayuse either police or militaryforces to perform the same function(i.e., rescuing hostages). Thisblurringof lines between police and military orces furtherhigh-lights the possible heights to which violence can rise in internal conflict.TheContemporary hallenge

Until recently, commentators have been reluctant to acknowledge that an internationalarmed conflict can occur between a stateand a privateactor.91One impact of the September11 attacksis that the destruction inflicted by the Qaeda terroristshas focused attention on achallenge that has more often faced states dealing with internal threats. Today a nonstateactor can attain such a level of organization and sophistication that it poses a threat compa-rable to that presented bymilitaryforces acting for or on behalf of a state. Such a group canfield operational elements complete with a command structure and planning organization.92The scale and effects of these attacksand their potential to be repeated or continued callfor a response other than one focused exclusively on law enforcement.The phenomenon of failed or failing states, combined with the proliferation of techno-logically sophisticated means of inflicting violence, including weapons of massdestruction,makes the possibility that a private actor will operate outside the framework of state-basedsecurity particularlydangerous in the twenty-firstcentury.93

IV. INTERNATIONALHUMANITARIAN LAW AND THE USE OF FORCETo assess the degree to which international humanitarian law and human rights law are

capable of converging, the different waythese two normativeregimes control the application90On the role of the third orce in counterterrorism, see WARDLAW, upranote 39, at 97-100. For example,in Canada the use of the armed forces in support of law enforcement is governed both bystatutes, i.e., The Emer-gencies Act, R.S., ch. 22 (4th Supp. 1985), and the National Defence Act, R.S.,ch. N-5 (1985), and by the exerciseof the Crown prerogative, i.e., Canadian Forces Armed Assistance Directions, P.C. 1993-624 (Mar.30, 1993); seealsoFitzpatrick, supranote 33, at 244.91Kalshoven, supranote 74, at 78, in discussing the status of the Israeli/PLO conflict, states:

[I]t is neither an internal conflict, nor do the States opposing Israel refuse to admit that they are Parties tothe conflict; what they refuse to acknowledge (and even on occasion strongly deny) is that the Popular Frontis affiliated to them.... On the other hand, one hesitates to characterize the operations of this and the otherArab guerrilla groups as a privatewar .Murphy, supranote 11, at 46-47, notes that Israeli operations in Lebanon in 1982, the 1985 Israeli attackon PLOheadquartersin Tunisia, and the 1986 U.S. attackon Libya n response to the Berlin dance club bombings have notmetwith widespread acceptance bythe global community that the terroristactsthatprecipitated those responsesconstituted an armed attack.

92 In 2002 Al Qaeda was divided into four committees: military,finance and business, fatwa and Islamic study,and media and publicity. The militarycommittee conducted recruitment, training, procurement, transportation,and the launching of militaryoperations, as well as the development of tactics and the acquisition and manufactureof special weapons. It included an extensive network of cells and agents and an internal security service. ROHANGUNARATNA, NSIDEAL QAEDA57-58 (2002).93 SeeMICHAEL GNATIEFF, HE WARRIOR'SHONOR 159 (1997) (noting that a major contemporary problem isthat some states are disintegrating and losing their monopoly on violence); seealsoVANCREVELD,upranote 77,at 403-08. However, there is continuing reliance on the responsibility of states for activitiesoccurring within theirborders. This approach is reflected in the U.S. NATIONALSTRATEGYORCOMBATINGTERRORISM,upra note 1, at11-12, which aims at reducing global terrorism to, first, a regional, and then, a local threat amenable to criminallaw enforcement.

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2004] CONTROLLINGTHE USE OF FORCE:A ROLE FOR HUMAN RIGHTS NORMSof deadly force should first be considered. A unique feature of international humanitarianlaw is that combatants have the right to participate directly in hostilities. 94They receiveimmunityfromprosecution,often termed as combatimmunity, orkillingcarriedout in accor-dance with the law.95 n addition, civilians are separatedfrom combatants in accordance withthe fundamental humanitarian lawprinciple of distinction. Moreover,anyuse of force mustbe controlled to ensure that it is used intentionally only againstvalidmilitary objectives. Thecontrolled application of force is often referred to in modern militaryterminology as tar-geting. Great efforts have been made over the past quartercentury to advance internationalhumanitarian law in this regard.Notwithstanding the challenges that faced international humanitarian lawduring WorldWarII, a commitment to the principle that there was still a place in war for humanityandforbearance wasexpressed at the close of the hostilities. This commitment resulted from theterrible loss of life caused by the wartime bombing campaigns,96and it meant that civiliansshould be protected byinternational law from intentional targeting.97 n addition, the expe-riences of many of the dominant militarypowers following WorldWarII, as both supportersand victims of modem warfare,prompted an internationaleffort,ultimatelysponsored bytheInternational Committee of the Red Cross (ICRC), to consider how to limit the tremendousdestruction inflicted by moder totalwar.98This effort culminated in the creation in 1977 ofthe two Additional Protocols to the 1949 Geneva Conventions.

Although thirtycountries have not ratified Additional Protocol I, the targeting provisionsare largelyseen asreflective of customary nternational law. Protocol I reinforces in codifiedform the fundamental tenet of the obligation to distinguish between persons who take partin hostilities and those who do not. The principle of distinction is reflected not only in thedefinition of the twoprivilegedclasses,combatants'?? nd civilians,1'0 ut also in the strictlim-itation of attacksto military bjectives. '02uch objectives,however,mayinclude both peopleand objects.103Additional Protocol I wasdesigned to limit the effects of targetingciviliansbecause of theirinvolvement in the wareffort and civilians are considered separatefrom military bjectives.But even within the category of civilians, their varying degrees of connection to a state'swarmakingcapabilitycan affect targetingdecisions. Forexample, internationalhumanitarianlaw has long recognized the intimate link between certain civiliansand armed forces in theconduct of hostilities byprovidingfor prisoner-of-war(POW) statusfor captured supplycon-tractors,warcorrespondents, members of labor units, civilian crews of militaryand civilian94 Protocol I, supranote 42, Art. 43.95 GROTIUS,supranote 37, at 654 (customary nternationallaw);Solf, supranote 49, at 58 n.31 (referringto Arce v.State, 83 Tex. Crim. 292, 202 S.W.951 (1918)).96 AsJames Spaight indicated in his postwarassessment of the law of air warfare:

It is necessary to state, or re-state,the fact thatnothing that has happened in the second world warhas shakenthe legal objection to indiscriminate bombing.... It is at the lethal instruments, the lethal processes to befound behind the enemy's frontier that a civilised air force strikes. That is what makes it a civilised air force.J. M.SPAIGHT,IRPOWERAND ARRIGHTS77 (3d ed. 1947). He goes on to state: Bombing for moral effect onlyremains unlawful. In that sense, attack on the civilian population is contrary to international law. Id.97 d.98For background, see R R Baxter, HumanitarianLaworHumanitarianPolitics?The1974 DiplomaticConferencenHumanitarianLaw, 16 HARV.NT'LLJ. 1, 4-9 (1975).

9 See,e.g.,Christopher Greenwood, Customary aw Statusofthe1977 GenevaProtocols,n HUMANITARIANLAWOFARMED ONFLICT:HALLENGESAHEAD3, 102-03 (AstridJ. M. Delissen &GerardJ. Tanja eds., 1991) (discussingU.S. recognition of the customarylaw status of some of the basic principles for the protection of civilians,includingdefinition of military objectives and the principle of proportionality).100 rotocol I, supranote 42, Arts. 43, 44.10 Id., Art. 50.102 Id., Art. 52.'03 Id.,Arts.52(2), 57. For example, Article 57(2) states that everything feasible must be done to verify hat theobjectives to be attacked are neither civilians nor civilian objects.

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aircraft,and the crewsof the merchant marine.'04The close connection between these civil-ians and militaryoperations, and the often consensual natureof their involvementin the formof contracts,make it difficult to argue that targetingdecisions willalwaysbe significantly nflu-enced by their presence in the vicinity of the military objective.Civilians uch as industrial workers have often prompted moralquestions concerning theirdegree of contribution to the war effort.105Additional Protocol I specifically protects themfrom intentional attack unless and for such time as they take a direct part in hostilities. '06The targeting of military objectives raises the issue of double effect, or what in contempo-rary anguage is more generally called the principleof proportionality. '07According to thisprinciple, civilians who are protected and immune from intentional direct attack may stillbe injured or killed if the militaryobjective is determined to be sufficiently important. Muchof the discussion of targetingunder international humanitarian lawhas traditionallyconcen-trated on the proportionality test and potential collateral damage to civilians. The currentincreased scrutinyof the issue of specifically targeting individuals has resulted in questionsas to the kind of action that constitutes assassinationl08nd, if legal, whether it can be consid-ered an effective means of conducting operations.109The outcome of that debate does not alter the fact that persons taking a direct part in hos-tilities are subject to being lawfully targeted by the opposing force. Under both AdditionalProtocols, the direct involvementof civilians n hostilities does not affect their legal status,butit does mean that theywill lose the protection of that status and could be targeted. ?Conse-quently, the principle of distinction is perhaps more accuratelydescribed as distinguishingbetween combatants, legal or otherwise, and those civilians who do not take adirect part inhostilities.

104Geneva Convention No. III, supranote 10,Arts.4(4), (5); seealsoLieber Code, supranote 44, Art.50;Projectof an International Declaration Concerning the Laws and Customs of War (Brussels Declaration), Aug. 27, 1874,Art.34, 65 BRIT.FOREIGNST.PAPERS1005 (1873-74), reprintedn THELAWS FARMEDONFLICTS,upranote 44,at 27; Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention Respecting theLawsand Customsof War on Land,Oct. 18,1907, Art.13,36 Stat.2277,1 Bevans 631 [hereinafterHague Regulations].105 WALZER,upranote 78, at 145-46.106Protocol I, supranote 42, Art. 51(3).107The doctrine of double effect had its genesis in the earlyChristian church. It isbased on the argument thatan act that has an evil consequence can be performed if the act is good, or at least indifferent; the direct effectis morallyacceptable; the intention of the actor is good; and the good effect is sufficientlygood to compensate forthe evil effect.JOHNSON,upranote 81, at 131-34; WALZER,upranote 78, at 153. The proportionality principle isreflected in Article 51 of Protocol I, in which the actual harm prohibited is an indiscriminate attack when it maybe expected to cause incidental loss of civilian life, injuryto civilians, damage to civilian objects, ... which wouldbe excessive in relation to the concrete and direct military advantage anticipated.108Discussion of assassinationfrom a legal perspective is complicated bythe different interpretations of the termfor peacetime and armed conflict, respectively. In peacetime assassination is normally associated with the illicitkilling of government officials, while in armed conflict the killing is linked to treachery regardless of the status ofthe victim. SeeMichael N. Schmitt, State-Sponsoredssassination n Internationaland DomesticLaw, 17 YALEJ.NT'LL. 609, 633 n.120 (1992) (stating: The peacetime prohibition serves to protect individuals involved in interna-tional affairs.... The warprohibition focuses on the method used to kill, not on the legitimacy of the target. );seealsoW.HaysParks,MemorandumfLaw:ExecutiveOrder 2333 andAssassination,ARMYAW.,Dec. 1989, at 4. Underthis interpretation, therefore, the intentional killing of a civilian not taking a direct part in hostilities without anyact of treachery, while illegal, would not constitute assassination.'09A long-standing debate about the effectiveness of killing enemy leaders ranges from whether it will have anyeffect to whether itwill possiblyprolong the conflict. SeeBRUCEERKOWITZ,HENEWFACE FWAR 27-29 (2003);ALBERICOGENTILI,EIUREBELLIIBRITRES67 (John C. Rolfe trans.,Carnegie ed. 1933) (1612). Supportfor assassi-nation is often based on the argument that striking at those directly responsible for the conflict avoids the deathof innocents, ncluding members of the military.Id.at 167. On assassinationgenerally,see THOMAS,upranote 77,at 47-85. The lawfultargetingof leaders can include heads of state in uniform or even a civiliancommander in chief.Parks,supranote 108, at 6 n.4. But see Yoram Dinstein, LegitimateMilitaryObjectives nder he CurrentJusn Bello,78 INT'LL.STUD.139, 158 (2002) (indicating that a civilian member of the political leadership does not becomea militaryobjective byhimself and cannot be targeted away rom such objective ). In addition, targeting decisionsshould not depend on the constitutional arrangements of a particularcountry. In that respect, it is not uncommonfor civilian politicians to become involved in directing militaryoperations or selecting targets. SeeMichael Short,Operation lliedForceromthePerspectiveftheNATOAirCommander,8 INT'LL. STUD. 9, 20, 25 (2002). In such situa-tions those politicians leave themselves open to being considered as valid targets.0 Protocol I, supranote 42, Art. 51(3); Protocol II, supranote 27, Art. 13.

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2004] CONTROLLINGTHE USE OF FORCE:A ROLEFOR HUMAN RIGHTSNORMSOne approach to the temporal limitation found in the phrase forsuch time as (Art. 53(1)of Protocol I) has been to suggest that targetingcivilianparticipantsshould be limited to timeswhen theyarefiring weapons or otherwiseposing an immediate threat. When not so engaged,these civilians would not be attacked. ' While designed to maximize the protection ofunin-volvedcivilians,this interpretation might erode the humanitarianshield extended to civiliansunderAdditional Protocol Ibecause groups could takeadvantageof itbyplanning operationswhen not bearing arms or overtly conducting operations. Concern has long been expressedover the idea of such a revolvingdoor of protection.112Unfortunately, there is limitedjudi-cial guidance on this issue, as the case law has primarilydealt with the killing of persons whowere hors de combat.l13The argument that civiliansareprotected unlessengaged in overtlyaggressiveactslikecarry-ing weapons may be particularlydifficult to maintain where armed groups are technicallyaccorded civilian statusbyvirtue of not being considered lawfulcombatants. 14 o the extentthat civilians fulfill the same function as combatants, either in the armed forces or as partof the organization of an illegitimate nonstate actor, they are logically subject to targeting

under the same provisions of international humanitarian law.The foregoing discussion demonstrates that the principles regarding targeting in armedconflict are directlyaffected by the nature of interstate conflict and the group role played bythe participants. In contrast, the human-rights-based normative frameworkfocuses on theprotection of individuals 15nd is predisposed to question anyuse of deadlyforce. The follow-ing review examines the manner in which human rights lawregulates the use of such force.V. HUMAN RIGHTS AND THE CONTROL OF EXTRALEGALKILLING

The human rightsframeworkemphasizesthe use of reviewprocessesassociatedwith the ruleof law.16Itsgoal is strict control not only of force intended to kill,but also of anyunintended'11 eeAMNESTYINTERNATIONAL,SRAELANDHEOCCUPIEDERRrTORIES:TATESSASSINATIONSNDOTHER NLAW-FULKILLINGS9 (AIIndex No. MDE 15/005/2001, Feb. 2001); seealsoMCKEOGH,upranote 60, at 140 (interpretingProtocol I to mean that irregularcombatants could move from the categoryof combatant to the categoryof civilian(and backagain) .... permitting the same persons to be both combatant and non-combatant in the course of a day ).112SeeW.Hays Parks,Air Warand theLaw of War,31 A.F. L. REV.1, 118-20 (1990).113SeeCase 11.137,Juan Carlos Abella v.Argentina, 1997 Inter-Am.Y.B.on H.R 602 (Commission report). Whiledealing with the issue of direct or active participation in hostilities, the Abellacase centered to a large extent onallegations of summary executions and abuse that occurred after the participants were captured. SeealsoProse-cutor v. Tadic, Opinion andJudgment, No. IT-94-1-T, para. 616 (May7, 1997), excerptedn 36 ILM908 (1997)(determining that the protection provided bycommon Article 3 should be extended to persons who were capturedor detained because [w]hatever their involvement in hostilities prior to that time,... [they] cannot be said tohave been taking an active part in the hostilities ).114 he loss of combatant privilege can result from not acting on behalf of a state or national liberation move-ment, or failure to comply with the group characteristicsof combatancyset out in GenevaConvention No. III,supranote 10, Art. 4(2) and Protocol I, supranote 42, Art. 43. Further, failure to meet the requirements of the secondsentence of Article 44(3) of Protocol I can result in the loss of POW status, although Article 44(4) provides thatsuch persons are to be givenprotections equivalent in all respectsto those accorded to prisonersof war. Six criteriaare relevant to the determination of combatant status. It has been suggested that the first three-being organized,being under responsible command, and belonging to a partyto the conflict-apply to the group and not to indi-viduals. The remaining criteria-displaying a distinctive sign, carrying weapons openly, and complying with thecustoms and law of war-are both group and individual in nature. G. I.A. D. Draper, TheStatusofCombatants nd theQuestion fGuerrillaWarfare, 971 BRIT.Y.B.NT'LL. 173, 196-97. However, scholars have found it difficult to agreeon which of the conditions are collective and which individual. According to one interpretation of Additional Pro-tocol I, status cannot be denied on a group basis for a failure byan armed force to enforce compliance with inter-national humanitarian law, see,e.g.,MICHAELOTHE,KARLJOSEF ARTSCH,& WALDEMARA. SOLF,NEWRULESORVICTIMSFARMEDONFLICTS38-39 (1982), but this interpretationdoes not appear to reflect the majorityopinion.115 McCann and Others v. United Kingdom, 21 Eur. H.R. Rep. 97, 160, para. 146 (1995); seealso McKerr v.United Kingdom, 34 Eur. H.R. Rep. 553,598, para. 108 (2001). See also the following three cases which differ onlyin relation to the facts and amount of damages awarded: HughJordan v. United Kingdom, App. No. 24746/94(2001); Kellyand Others v. United Kingdom, App. No. 30054/96 (2001); Shanaghan v. United Kingdom, App. No.37715/97 (2001). All these cases are available online at .116SeeBROWNLE, supranote 84, at 65 (noting that theconcepts of human rightsand the institutions aimed at themonitoring and enforcement of human rightsconstitutewhatis, to a certainextent, a discrete public order system ).

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THE AMERICANJOURNAL OF INTERNATIONALLAWoutcome involving deprivation of life.117Limiting the use of force to situations of absolutenecessity indicates that a stricter and more compelling test of necessity must be employed[than] thatnormallyapplicablewhen determiningwhether State action is 'necessary n a dem-ocratic society.' 1'8The different context in which force is normally applied within a state is also reflected inthe emphasis placed under the human rights framework on seizing an individual. For exam-ple, the U.S. Supreme Court stated in Tennessee . Garner19hat [t]he intrusiveness of a sei-zure by means of deadly force is unmatched.... The use of deadly force also frustrates theinterest of the individual,and of society,injudicial determination of guiltand punishment. '20A particularconcern of supervisorybodies is that state agents will adopt or exercise a shoot-to-killpolicy.'21All the same, the abilityto seize an individual and to bring that person tojus-tice requires a lawenforcement focus with a high level of physicalcontrol over the situation,as well as a well-developed judicial process to deal with the offender. These factors are notnormallyencountered in external conflicts, even when nonstate actors such as terrorists areinvolved.

These stricthuman-rights-basedstandards of accountabilityfind expression in the interna-tional principleson the use of force. The United Nations BasicPrincipleson the Use of Forceand Firearmsby Law Enforcement Officials require the adoption of rules and regulationson the use of force and firearms;122ncourage the development and deployment of non-lethal incapacitating weapons;123 rescribe clear warning on the use of firearms unless inap-propriate;'24 nd state that firearms are to be used in a manner likely o decrease the risk ofunnecessary harm. '25Firearmsmaybe employed intentionally only whenstrictlyunavoidablein order to protectlife. '26Force, including firearms, may be used only ifother means remain ineffective orwithout any promise of achieving the intended result. 127Circumstances such as politicalinstability or any other public emergency cannot be invoked tojustify departing from the

The term extralegalkilling s used belowsynonymouslywith extrajudicial illing. Extrajudicial ppears o haveits genesis in human rights documents such as the International Covenant on Civiland Political Rights,Article 6,which, in describing the rightto life, specificallyqualifies itby prohibiting arbitrarydeprivationof life and permittingthe death penalty in certain respects. Much of the discourse of human rights emphasizes the controversial issueofjudicially sanctioned killing. The term extralegal more directly reflects the scope of the authority to use forceunder human rights norms, including the right to act legitimately in self-defense.117McCann,21 Eur. H.R. Rep. at 160, para. 148.118 Id., para. 149.19Tennessee v. Garner,471 U.S. 1 (1985). This case and Graham . Connor, 90 U.S. 386 (1989), require apoliceofficer to have probable cause to believe a suspect poses a threat of serious physicalharm, either to the officers orto others, before using force to prevent escape. The Graham ase sets out an objective standard of reasonablenessto consider if a suspect poses an immediate threat to the safetyof police officers or others. This case law was reliedon by the Department ofJustice in its reviewof the 1992 shooting of a suspect's wife by an FBIsniper, in which itdetermined that rules of engagement directing the police that deadlyforce can and should be employed againstan adult male with a rifle if the shot could be taken without endangering any children were improper and failed tocomply with constitutional standards. U.S. DEP'T OFJUSTICE,REPORTON INTERNALREVIEWREGARDING HERUBYRIDGE HOSTAGESITUATIONAND SHOOTINGSBYLAWENFORCEMENT ERSONNEL,pt. IV.F.4, available at (visited Oct. 26, 2003).120 Garner, 471 U.S. at 9.121See Idahov. Hariuchi, 53 F.3d 359,377, vacatedasmoot, 66 F.3d 979 (9th Cir.2001), quotedn WilliamC. Banks&Peter Raven-Hansen,Targeted illingand Assassination:TheU.S.LegalFramework,7 U. RICH. . REV. 67,677 (2003),which found that wartime[shoot-to-kill]rules are patentlyunconstitutional for a police action. SeealsoMcKerrv.United Kingdom, 34 Eur. H.R. Rep. 553, 595-96, para. 100 (2001) (allegations by next of kin that pattern of con-duct bypolice authorities in using unnecessary and disproportionate force was evidence of a shoot-to-kill policy).

122Basic Principles, supranote 63, paras. 1, 11.123 Id., paras. 2, 3.124 Id., para. 10.125Id., para.11(b).126 Id., para. 9.127 Id., para. 4.

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2004] CONTROLLING THE USE OF FORCE: A ROLE FOR HUMAN RIGHTS NORMS

principles.'28Strictaccountabilityfor the use of firearmsis called for by requirements to setup a systemof reporting whenever law enforcement officers use such weapons and to reportany incident of death or injurycaused bythe use of force.129Law enforcement officers mustbe held accountable for the firearms and ammunition issued to them.'30

Governments,for their part,must provide adequate training and establish effective report-ing and reviewprocedures.'31In addition to making an independent administrative or pros-ecutorial reviewavailable, governments should enable persons affected by the use of forceto access an independent process, including ajudicial process.132 uperior officers are to beheld responsible if they know or should have known that subordinates had resorted to theunlawful use of firearms and theydid not take all measures in their power to prevent, sup-press or report such use. '33Governments are to ensure that any arbitraryor abusive use offorce and firearmsbylawenforcement officials is punished as a criminaloffense.34 Immunityshall be extended to law enforcement personnel who refuse to carryout an order contraryto these principles.'35 inally, he defense of superiororders cannot be claimedif the order wasmanifestly unlawful and the officer had a reasonable opportunity to refuse to follow it. '36Similaraccountabilityrequirements can be found in the Principleson the Effective Preven-tion and Investigationof Extra-Legal,Arbitraryand SummaryExecutions.137 hese principlesemphasize the protection of evidence of the crime scene, including by conducting an ade-quate autopsy.138Both sets of principles demonstrate the extent to which the human rightsprocess seeks to limit the use of force and stresses accountability.Human rights law devotes particularattention to aneffective official investigation whenindividuals have been killed as a result of the use of force. '39The investigation is aimed atensuring that domestic lawssafeguardingthe right to life are properlyimplemented and thatstateagents or bodies are held accountablefor deathsoccurringunder theirresponsibility. 140The expectation thatsuch an investigationwill resultalmostautomatically rom a use of forceis reflected in the decision of the European Court of Human Rights in McKerrv.UnitedKing-dom,where the Court found that this expectation wasimplied in the European Conventionon Human Rights.l41The Court further stated that no matter what mode of investigation isemployed, the authorities must act on their own initiative once the matter has come to theirattention. They cannot leave it to the initiative of the next of kin either to lodge a formalcomplaint or to take responsibility for the conduct of any investigative procedures. '42Thisprocess involves taking reasonable steps to secure evidence, such as eyewitness testimony,forensic evidence and, where appropriate,an autopsywhichprovidesa complete and accuraterecord of injuryand an objective analysisof clinical findings, including the cause of death. '43128 Id., para. 8.129 Id., paras. 6, 11(f).130Id., para. 11(c).11 Id., para. 22.132 Id.,para. 23.133 Id., para. 24.134Id., para. 7.135 Id., para. 25.136 Id.,para. 26.137ESCRes. 1989/65, annex, 1989 UN ESCOR,Supp. No. 1,at 52, para.1,UN Doc. E/1989/89, availableat. Exceptional circumstances such as astate of war or threat of war,internal political instabilityor anyother public emergency maynot be invoked as ajustification of such executions.138Id., para. 9.139

McKerr, 4 Eur. H.R. Rep. 553, 599, para. 111 (2001).140 Id.141 Id. (citing European Convention on Human Rights, supranote 65, Arts. 1, 2).142Id.143 Id. at 599, para. 113; seeOgurv. Turkey,31 Eur. H.R Rep. 912, 944-45, para.91 (1999) (holding that the lackof a

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HR Norms in Contemporary Armed