ABSTRACT

Uncertainty and controversy not only surround the classification of situations of crisis and conflict, but also the meaning, scope and interplay of humanitarian law and human rights law in situations of irregular armed conflict and other situations of violence, and in turn the legal frameworks with which to assess the lawfulness and legitimacy of targeted killings. For example, in 2016 the Parliamentary Joint Committee on Human Rights alerted the United Kingdom (UK) government that it must clarify the legal justifications for its policy on the use of lethal force and urged the UK government to take the lead in developing an international consensus about how international frameworks apply to the use of lethal force abroad, particularly in counterterrorism operations outside the context of an armed conflict, both multilaterally and within the context of the UN Human Rights Council and the Council of Europe. The UK House of Commons Defence Committee also raised concerns about the lack of clarity and certainty that arise out of the tension and overlap between IHL/LOAC and human rights law, as well as the ‘judicialisation of war’. Furthermore, the Defence Committee stressed that unless government policy, as determined by Parliament, military doctrine and legal principles, are clarified, then uncertainty for military personnel and claimants will continue to grow, and it urged a strategic plan to address these issues. Accordingly, this book sets out a provocative discussion that attempts to provide further clarification vis-à-vis what targeting and weaponry rules apply to the use of force in unconventional and irregular situations of violence and how to coordinate the application of these two very different legal frameworks. It argues for the progressive realisation of targeting and weaponry law so that they are more fitting for urbanised and civilianised operational environments. In particular, it focuses on the following interrelated issues: developing objective criteria for determining where the shift from a law-and-order paradigm to an armed conflict occurs in relation to targeting law (in particular, targeting by status) and weap-

participation in hostilities and de facto membership in an organised armed group; and taking stock of how existing targeting and weaponry rules are being applied to unconventional conflicts within civilian populated areas by key state players, as well as by international and regional human rights mechanisms. This discussion seeks to contribute to ongoing debates within future strategic defence and security reviews about the extent to which we should expect legal scrutiny and cases to be brought under human rights law and the threshold from which this may be regarded as infeasible and an impediment to operational effectiveness.