Guest blog by Dr Bérénice Boutin, researcher in international law at the Asser Institute in The Hague. Her work addresses legal aspects of counter-terrorism and modern warfare, with a particular focus on issues of international responsibility as well as human rights protection. Follow her on Twitter: @bereniceboutin

In recent years, a significant number of European nationals have travelled to Syria or Iraq to train and fight with terrorist groups such as the Islamic State (IS). This flow of foreign terrorist fighters (FTFs) has posed serious security concerns for Europe, in particular with regards to the threat posed by FTFs returning to Europe to carry out terrorist attacks. In this context, it appears that a number of States have resorted to targeted strikes against their citizens in Syria and Iraq.

A recent example is the case of Sally Jones, a British citizen involved with IS in Syria since 2013, and who was killed by a US drone strike in June 2017. The strike, which also killed her 12-year-old son, was arguably carried out with the knowledge and support of the UK. Already in 2015, the targeted killing by the UK of British IS fighters Reyaad Khan and Ruhul Amin made the front headlines. France is also reported to have directed targeted operations against French nationals having joined IS, either directly with operations by French special forces or indirectly by providing Iraqi forces with a list of suspected French FTFs to be killed.

These operations raise sharp questions in terms of legality, as the circumstances in which targeted killing can be lawful under international law remain controversial. Furthermore, beyond legal justifications, it is interesting to analyse the political justifications provided by countries targeting their citizens, which essentially aim at preventing FTFs from returning to Europe.

It should first be briefly mentioned that any use of force in the territory of another State must comply with the rules of jus ad bellum, which prohibit resort to force under Article 2(4) UN Charter. In the case of Iraq, it is accepted that the consent of the Iraqi State – which expressly requested other States to intervene – provides legal justification to the use of force. With regards to Syria, the situation is more ambiguous, as most States rely on interpretations of the right to self-defence (Article 51 UN Charter) that are not fully established.

Secondly, the targeted killing of individuals must also comply with the rules of international humanitarian law (or jus in bello). With regards to FTFs that are actively engaged in combat activities in Syria or Iraq, targeted killings could be justified under humanitarian law. Indeed, IS fighters qualify as legitimate targets as they are members of an organized armed group assuming a continuous combat function. This seems to be the view held by a number of States: the UK Defence secretary recently declared that ‘[i]f you are a British national in Iraq or Syria and if you have chosen to fight for [IS] [...] then you have made yourself a legitimate target’, and a French government spokesperson made similar statements.

The legality under jus in bello of the targeted killing of Sally Jones, however, is more contentious, as she was not involved as a combatant but instead as a recruiter and propagandist. According to the ICRC, such activities do not lead to a direct participation in hostilities, and the drone strike that killed her was therefore arguably unlawful. In the view of others, the ICRC’s interpretation is too narrow, and providing support to IS through recruitment can render one a legitimate target.

Thirdly, international human rights law (IHRL) can also play a role in determining the lawfulness of targeted killing against FTFs in Syria or Iraq. It is increasingly accepted that IHRL applies during armed conflict, although with some qualifications. In the case of targeted killings, it can be argued that IHRL would provide a duty to ‘at least consider the feasibility of making the attempt, to capture before resorting to lethal force.’ This is particularly relevant to the operations undertaken by France, which reportedly involved ground forces rather than air strikes.

Even if the targeted killing of FTFs in Syria or Iraq can sometimes be justified under international law, it remains questionable whether it is ethically sound for a government to target its own citizens abroad for the purpose of preventing their return. States involved in targeting FTFs have more or less explicitly recognised that their goal was to pre-empt the possibility of FTFs returning to Europe. For instance, French Defence Minister was recently quoted saying that France’s aim was to ‘neutralise’ as many FTFs as possible so as to prevent their return. It has also been suggested that certain States find it easier to kill FTFs abroad rather than to prosecute them upon return.

Such policies of preventive killings against individuals who are members of the national community seem at odds with fundamental values embraced by European States, and suggest an approach of placing lower value in human life when dealing with suspected terrorists. While the risk posed by returning FTFs is very serious, it does not justify controversial policies of elimination. As a number of FTFs are beginning to surrender after the fall of Raqqa, States need to confront the issue and to develop sound policies to address the inevitable return of some FTFs.

Bérénice Boutin
23 October 2017



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