Acknowledgements

Contents

Abbreviations and Terminology

A. Introduction

I. Aim of this Study

II. Historical Development of Asymmetric Warfare, Immediate Participation in Hostilities and Targeted Killings

III. Definition of Targeted Killings

IV. Applicable Law

1. The Hague Law, Geneva Law and International Criminal Law

2. Anonymous Killings versus Targeted Killings

3. International Human Rights Law

4. IHL’s Applicability ratione loci

5. IHL’s Applicability ratione temporis

B. International and Non-international Armed Conflicts

I. Qualification as an International Armed Conflict

II. Several Levels of Non-international Armed Conflicts

1. Three-step Approach

2. Territorial Control

3. Impact on Targeted Killings and Immediate Participation in Hostilities

III. Particular International and Non-international Armed Conflicts

IV. Convergence of International and Non-international Armed Conflicts

V. Immediate Participation in Hostilities as a Concern of Non-international Armed Conflicts

C. Statuses during Armed Conflict

I. International Armed Conflicts

1. Combatants

2. Civilians

3. Allocation and Loss of Status

II. Non-international Armed Conflicts

1. No Combatant Status, no Prisoners of War

2. Emergence of the Law and States’ Interests

3. Impact on the Ground, Reciprocity and Legal Ethics

4. Voluntary Granting of Combatant Status?

5. Rights and Denomination of Members of the State’s Armed Forces

6. Conclusion on Statuses

III. Categories Independent of the Conflict’s Nature

1. “Non-combatants”

2. “Quasi-combatants”

3. Parlementaires

4. Private Contractors

IV. Correct Denomination of Immediately Participating Civilians

D. Principle of Distinction

I. Principle of Active Distinction

II. Principle of Passive Distinction

E. (No) Protection from Military Attack during Armed Conflict

I. Combatants

II. Civilians

1. Art. 51 (3) of AP I

2. Provisions Similar to Art. 51 (3) of AP I

3. Active, Direct, Real and Immediate Participation

a) Overview of the Different Concepts

b) How to Interpret the Different Concepts

aa) Vienna Convention on the Law of Treaties of 1969 (VCLT)

bb) Statutory Interpretation in General

(1) Literal / Grammatical Interpretation

(2) Systematic Interpretation

(3) Teleological Interpretation

cc) Subsidiary Interpretation Methods under Art. 32 of the VCLT

(1) Travaux préparatoires

(2) Historical Interpretation

(3) International Texts and Practice

(4) International Texts and Practice put to the Test

(5) Inclusive and Conciliatory Interpretation

dd) Noscitur a sociis Approach

ee) “Immediate” Participation in Hostilities

4. Conclusion on the Exceptional Clause’s Appropriate Wording and its Reasoning

5. Remaining Protection for aCcivilian Taking an Immediate Part in Hostilities

a) International Armed Conflicts

b) Non-international Armed Conflicts

III. Loss of Protection from Attack via Membership in the Armed Forces or an Organized Armed Entity

1. States’ Armed Forces

2. Denomination of the Concerned Non-state Entities

3. Definition of Membership

4. International Armed Conflicts

a) Qualification as an Organized Resistance Movement and Loss of Protection from Attack

b) Additional Qualification for Combatant Status

c) Comprehensive Understanding of Members of an Organized Resistance Movement

d) Individuals not under Military Command

5. Non-international Armed Conflicts

a) Strict Requirements for Organized Armed Groups

b) Absence of Combatant Status

c) Continuous Combat Function

d) No Immunity from Attack

6. Practical Consequences of a Strict Approach for the Entities’ Qualification

7. Duration of Membership

8. Concluding Remarks on Membership Approach

F. Immediate Participation in Hostilities

I. Introduction

II. Israeli Judgment (“Targeted Killings” Case)

III. ICRC Interpretive Guidance

IV. Case-by-case Approach?

V. Definition of Immediate Participation in Hostilities

1. “And for such Time as” – Immediate Participation in Hostilities ratione temporis

a) Basic Principle

b) Beginning of Immediate Participation in Hostilities

c) End of Immediate Participation in Hostilities

aa) “Specific Acts Approach” and its “Revolving Door”

bb) Not an Issue of lex scripta versus lex non scripta

cc) Taking into Account the Entire “Hostile Period”

dd) One-time Immediate Participation in Hostilities

ee) Case of Return from Attack

ff) Responsibility to Determine the End of Immediate Participation on the Ground

gg) How to Signal the End of Membership or of Immediate Participation in Hostilities?

(1) Individualized Approach

(2) Database Registration

(3) Burden of Proof Lies with the Attacker

(4) How to Accelerate the End of Membership or Immediate Participation in Hostilities?

2. Hostilities

3. Direct Causation

4. Belligerent Nexus

5. Classic Notions of Criminal Law

a) Attempt, Threat, Likelihood of Harm and Guilt

b) Actus reus and mens rea

c) Situations of Doubt

6. Additional Requirements for (Im-)Mediate Participation in Hostilities

a) The Unlawfulness of an Act and the Weakening of the Adversary

b) Carrying of a Weapon

VI. Specific Cases of Immediate Participation in Hostilities

1. Human Shields

2. Computer Attacks

3. Drones

VII. Illustrative Examples of Immediate Participation in Hostilities

VIII. Mediate Participation in Hostilities

IX. Right to Immediate Participation in Hostilities

G. Practice of Targeted Killings in Light of other IHL Principles

I. Proportionality

II. Prohibitions of Perfidy and Denial of Quarter

III. Other Principles and Conclusion

H. Legality of Targeted Killings in Armed Conflict

I. In General

II. Less Harmful Means

III. Target Lists

IV. Ex post Investigation of a Killing’s Legality?

I. Fictional Case Study

I. Fictional Facts

II. Application of the Law and its Principles

1. Applicable Law

2. Qualification of the Conflict and Corresponding Legal Texts

3. Assessment of the collectivities and the individuals as well as of their acts

a) allYance

aa) Intrinsic Characteristics

bb) Military Vulnerability

cc) Criminal Liability

b) Y. Woman

c) Xeno

d) forZes

aa) Intrinsic Characteristics

bb) Military Vulnerability and no General Criminal Liability

cc) Lawfulness of the forZes’ Acts

III. Conclusion

J. Conclusions

I. In General

II. Substantive Findings

III. “And for such Time as”

IV. Use of Appropriate Expressions

References and Bibliography

Domestic Legislation, Regulation and Communication

I. France

II. Germany

III. Israel

IV. Netherlands

V. New Zealand

VI. Norway

VII. Switzerland

VIII. U.K.

IX. U.S.

Table of Cases

I. International

1. ICC

2. ICJ

3. ICTR

4. ICTY

5. Other

II. Domestic

1. Canada

2. Colombia

3. Germany

4. Israel

5. Switzerland

6. U.S.

Subject Index