CIRCUMSTANCES IN WHICH INDIVIDUALS MAY LAWFULLY BE LETHALLY TARGETED Separately from the question of whether US use of force in Pakistan violates Pakistani sovereignty, the legality of strikes against particular individuals turns on their compliance with IHL and/or IHRL. US strikes that occur outside the context of any armed conflict are governed by IHRL law. If an armed conflict exists, both IHRL, and IHL, as the lex specialis (“law governing a specific subject matter”), apply. 619
THE EXISTENCE OF AN ARMED CONFLICT IN PAKISTAN The existence of an armed conflict is determined according to objective legal criteria.620 In the context of a non-international armed conflict (insofar as a “conflict” exists in Pakistan between the US and others, it is a non-international conflict because it involves non-state actors), factors such as whether the violence reaches a minimum level of intensity and duration,621 and involves a sufficiently identifiable and organized nonstate group,622 are relevant.
Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 29; see also INTERNATIONAL COMMITTEE OF THE RED CROSS, INTERNATIONAL HUMANITARIAN LAW AND OTHER LEGAL REGIMES: INTERPLAY IN SITUATIONS OF VIOLENCE (2003), available at http://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf (“In short, the participants [of the XXVIIth Round Table on Current Problems in Humanitarian Law] agreed that the existence of an armed conflict could permit the suspension of the application of derogable human rights but only to the extent necessary, for the limited duration of exceptional events justifying their suspension and subject to compliance with certain precise conditions. At the same time, a consensus emerged that, even in this hypothesis of conflict, at least the non-derogable rules of human rights law continue to apply and to complement IHL.”). 620 See Sylvain Vité, Typology of Armed Conflicts in International Law: Legal Concepts and Actual Situations, 91 INT. REV. OF THE RED CROSS 69, 72 (2009) (noting the Geneva Conventions specified that “international humanitarian law was. . . . no longer based solely on the subjectivity inherent in the recognition of the state of war, but was to depend on verifiable facts in accordance with objective criteria”). 621 See Int’l Comm. of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law? (Mar. 2008) (laying out customary IHL); see also Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Non-International Armed Conflicts, June 8, 1977, art. 1(2), 1125 UNTS 609, available at http://www.icrc.org/ihl.nsf/full/475?opendocument (requiring that the conflict amount to more than "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature”) [hereinafter Protocol II]. 619
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