Targeted Killing in International Law

Nils Melzer
(Oxford University Press, Oxford, 2008, 468 pp)

Targeted killing is not an easy topic to write, or read, about. The more examination
given to the issue of whether a state has the legal, or even moral, right to kill, the
more complex the arguments on both sides become. It is an issue located between
politics and law, and a clear example of the inherent tension between limits of state
sovereignty and universal humanitarian concerns. So it was with some degree of
trepidation that I commenced reading Nils Melzer’s Targeted Killing in
International Law. My concerns were unfounded. The book is a well written,
clearly structured, thoughtful and measured account of issues such as current state
practice, judicial consideration and relevant international law. Melzer focuses his
legal reflection within this theme in the examination and comparison of two major
normative paradigms, that of law enforcement and that of the rules relating to the
conduct of hostilities. The large book (over 500 pages) concludes with a plea for
scrupulous interpretation of the existing normative legal framework rather than the
development of a new doctrine. The author expresses his apprehension on the use
of targeted killing as a method of law enforcement and argues for caution when
placing such acts within the paradigm of the conduct of hostilities. In essence
Targeted Killing in International Law is a book about balance and the desire for
careful consideration before the application of policies involving the destruction of
lives.

Melzer deals with each of the legal issues involved in targeting killing with
clarity and precision. For example Chapter XI deals with the principles of
distinction under International humanitarian law (IHL). A fundamental element of
this area of international law and a crucial part of the targeted killing discourse, the
chapter provides an eloquent description of the ‘jus cogens’ nature of the principle
of distinction (in essence permitting direct attacks only against the armed forces of
the parties to the conflict and sparing the peaceful civilian population) as well as
examining the complexity involved in connected issues such as ‘direct participation
in hostilities’.

Noting the lack of definition of this term, the author reviews international
criminal jurisprudence, domestic cases (such as the Israeli Supreme Court) and
refers to military manuals to demonstrate the genuine absence of clarity of this
important principle which can result in the attribution, or loss, of protection. The
lack of agreement on what constitutes direct participation troubles Melzer and he
notes that the diverging interpretations can lead to ‘extreme ends’ of the spectrum
gaining acceptance: the military arbitrarily targeting civilians or organised groups
abusing their protective status. He urges for clarification of this concept to be
undertaken ‘in good faith, and in accordance with the ordinary meaning to be given
to the terms in their context, and in the light of the object and purpose of the notion
within IHL’ (p 334). To support this request Melzer provides the reader with the
two major current doctrinal approaches to direct participation in hostilities
(‘restrictive’ and ‘liberal’) as well as the range of other views, contrasting and
comparing the strengths and weakness of each opinion. A discussion on the
principle of proportionality follows, demonstrating the tight nexus to be found
between the various principles of IHL and the similar thematic difficulties involved
in highlighting ‘absolute’ rather than ‘relative’ limits in this area of law. The text
balances the difficult practical realities of inevitable temporal restrictions of
decisions made ‘in the heat of the battle’ with the author’s belief in the need for
careful and clear planning.

In the introduction to his book, Melzer is explicit with his reasons for exploring
such unpalatable terrain as issues surround targeted killing and writes (p vii):
I felt that there must be a measure of legitimacy to all views involved, and that it
must be possible to find a common denominator in universal, inherently human
values.

This search for the ‘middle ground’ continues. He quickly identifies the crux of
the difficulty when dealing with arguments surrounding the use of targeted killing.
This difficulty is the paradox that those arguing passionately on ‘each side’ argue
the same point from contrary perspectives; the necessity to protect life. For those
who view the use of targeted killing as a valid measure the legitimacy of such acts
lies in the protection of those considered under threat from the ‘targeted’. For those
who argue against such a policy, moral and legal legitimacy is grounded in the
protection of those ‘targeted’. There is a constant tension throughout the book of
muted frustration and restrained passion by the author, despite claims of total
impartiality. But it is this friction, reflective of the subject matter itself, which adds significant interest and a layer of complexity to the superb technical analysis.
Targeted Killing in International Law provides no clear answers. With such a
theme anyone who claims moral and legal certainty is to be deemed naive or
lacking practical understanding of one of the most controversial concepts in
international law and politics. However, Melzer’s detailed examination is a large
step forward in the development of a better understanding of the issues and
particular pressure points that daily engage advisers, courts, international lawyers
and politicians when trying to determine when the state is in the position to take
lives.

Main source: Helen Durham
ACTING DIRECTOR
ASIA PACIFIC CENTRE FOR MILITARY LAW
AND SENIOR RESEARCH FELLOW, UNIVERSITY OF MELBOURNE LAW SCHOOL

Author: international

Mentioned in these Entries

International humanitarian law.