Much like invocations of ‘targeted killing,’ shoot-to-kill is used to imply a
new approach and to suggest that it is futile to operate inside the law in
the face of terrorism. However, human rights law already permits the use
of lethal force when doing so is strictly necessary to save human life. The
rhetoric of shoot-to-kill serves only to displace clear legal standards with a
vaguely defined licence to kill, risking confusion among law enforcement
officers, endangering innocent persons, and rationalizing mistakes, while
avoiding the genuinely difficult challenges that are posed by the relevant
threat.” The Special Rapporteur has further suggested that States that
adopt shoot-to-kill policies for dealing with, for example, suicide bombers
“must develop legal frameworks to properly incorporate intelligence
information and analysis into both the operational planning and postincident accountability phases of State responsibility.” They must further
ensure that “only such solid information, combined with the adoption of
appropriate procedural safeguards, will lead to the use of lethal force.”51
Under international and regional human rights law, the protection against
arbitrary deprivation of life is non-derogable even in a state of emergency
threatening the life of the nation.52 The Human Rights Committee has
stated that “the protection against arbitrary deprivation of life… is of
paramount importance. The Committee considers that States parties
should take measures… to prevent arbitrary killing by their own security
forces. The deprivation of life by the authorities of the State is a matter
of the utmost gravity. Therefore, the law must strictly control and limit
the circumstances in which a person may be deprived of his life by such
authorities.”53 To comply with international human rights law, any State
policy which allows the use of lethal force must, therefore, fall within
those narrow cases in which the deprivation of life cannot be considered
arbitrary.
In order to be considered lawful, the use of lethal force must always
comply with the principle of necessity and must be used in a situation in
which it is necessary for self-defence or for the defence of another’s life.
It must always comply with the principle of proportionality, and non-lethal
tactics for capture or prevention must always be attempted if feasible.
In most circumstances, law enforcement officers must give suspects the
opportunity to surrender and employ a graduated resort to force.54 “The
State’s legal framework must ‘strictly control and limit the circumstances’
in which law enforcement officers may resort to lethal force.”55
International humanitarian law contains similar provisions against
the “targeted killing” of civilians in the context of an armed conflict
(see chap. I).
31
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