Targeted killings and International Human Rights Law – convergence or confrontation?

by Afshin Berahmand

In 1989 the secretary general of the Kurdistan Democratic Party of Iran (KDPI), Dr. Abdul Rahman Ghassemlou, was assassinated in Austria. He and two friends were brutally murdered in an apartment in the suburbs of Vienna by agents of the Islamic republic of Iran.

The KDPI has been working towards a democratic constitution with autonomy for Kurds in the western regions of the country since 1945. The conflict between the secular KDPI and the central government in Teheran escalated after Iran’s Islamic revolution in 1979. Since then the pro-kurdish political party has been outlawed by Teheran calling them “infidels” and “satanic”. Teheran has had great success in keeping Kurdish demands on a low nationally, and has had great success in limiting Kurdish voices outside Iran as well, first of all by murdering Kurdish political leaders such as Dr. Ghassemlou in 1989, and his follower in the KDPI, Sadegh Sharafkandi, in Berlin in 1992.

One would assume that international law prohibits a state from carrying out targeted killings on territories that do not belong to them. However, contrary to common belief not all states agree that human rights are universal. The International Covenant on Civil and Political Rights (ICCPR), which is the largest multi-lateral human rights treaty, signed by 167 parties, is not precise in its wording on this matter either. The purpose of the ICCPR is to protect the rights of individuals, e.g. the right to life and liberty, freedom of speech, and the rights to due process and fair trial. The debate on the territorial extent of the applicability of the ICCPR has been vivid lately, especially since American soldiers killed al Qaeda leader Osama bin Laden in Pakistan in 2011. The reason for the discussion on whether or not a person is protected by convention universally is the wording of ICCPR art. 2 (1), which reads:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.

This raises the question whether the ICCPR applies extra-territorially or not. In other words: is a contracting state to the ICCPR obligated to respect the rights within the convention when operating outside its own national borders? This depends – inter alia – on the interpretation of the wording of ICCPR art. 2 (1).

The wording of ICCPR art. 2 (1) suggests that it does not apply extra-territorially since it demands that a state is only bound to respect the rights within the convention towards people who i. are within the state’s territory and ii. are subject to its jurisdiction. Case law from the International Court of Justice (ICJ) on the other hand suggests that a state is bound by the ICCPR when it exercises jurisdiction outside its own territory. The court justifies that the ‘and’ in the wording of art. 2 (1) should sometimes be read as an ‘or’ in order for it to co-exist with the spirit of international human rights law as laid down in the preambles of both the ICCPR and the UN Charter on Human rights.

The US administration categorically denies the extra-territorial applicability of the ICCPR. They argue that they can ‘pre-emptively’ target any suspected political enemy as long as the political enemy is a threat to the security of the state, and the strike happens outside their own national borders. One of the dangers of this perception is that, if this is the premise of justification then the access to perform targeted killings should be available, not only to USA, but to all states, even Iran. This would be a catastrophe, to say the least.

So what would then make a US drone attack legitimate, but an Iranian one not? Seeing that there is no legal argument for that viewpoint, perhaps political interest is really the reason behind the different interpretations of the ICCPR. This is accentuated partly in an interpretation dispute related to the wording of a provision in Security Council Resolution 1441 on the legitimacy of the war on Iraq. Here the US administration made the exact same interpretation as the ICJ, claiming that sometimes “and” is to be interpreted disjunctively, meaning as an “or”. Why deny this argument in relation to ICCPR but claim it in regard to invading Iraq? Thus, it is difficult to avoid the idea that some countries’ reading of ICCPR. 2 (1) is based on political considerations rather than legal ones.

It is unclear whether performing a targeted kill like that on Mr Ghassemlou qualifies as carrying out jurisdiction over Austria in which case Iran violated Ghassemlou’s right to life as laid down in the ICCPR art. 6. However, the ICJ makes sense when they argue that, in situations where a state has effective control over an individual (which it certainly has if it is able to kill him) outside its national borders, it is also bound by human rights law. If the convention did not apply in any circumstance outside the territory of a contracting state, would that not mean that Nazi Germany’s massacre on Jews in polish Auschwitz would, at least, not be in conflict with the ICCPR?

Accordingly, the Ghassemlou- and Sharafkandi murders were in conflict with international human rights law, specifically the ICCPR.