About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
The first part of this two part piece will consider the Algerian military action against the Amenas gas plant which took place two weeks ago against the standards set out in human rights law. In doing so, it considers whether the Algerian government’s decision to storm the gas plant with such a heavy military force might constitute a violation of the right to life of the hostages and/or the hostage-takers that died in the operation.
The following second part of the post which will follow considers whether the act of the hostage-takers was on such a scale as to elevate the situation to the threshold of a non-international armed conflict.
What happened?
As the facts emerge about what happened in what has become known as the ‘Algeria hostage crisis’, it is clear that the situation could not have been more terrifying for the persons on the site during the four day seizure of the gas plant. The latest estimates suggest that as many as thirty nine foreign workers lost their lives during the incident which lasted four days (see here).
The capture of the Amenas gas plant began early in the morning of Wednesday 16th January when heavily armed gun men attacked two buses which were travelling off the gas plant site towards the airport. In this initial incident, five foreign workers were killed as they tried to escape or challenged the militants (see here). Afterwards, around 30 militants stormed the main entrance of the site and headed to the living quarters where they started what was described as a ‘frenzied search’ for foreign workers. At the time of the attack, there were about 700 Algerians working on the site and approximately 130 foreign workers (see here).
The foreigners which were found by the hostage-takers were rounded up, bound and some had plastic tape placed over their mouths. Some of the hostages had explosives strapped around their neck or waists. Some individuals that tried to escape were shot. However, many foreigners did manage to find a hiding place and were not discovered by the hostage-takers. Some stayed in their hiding places until Saturday, when the Algerian army finally declared the site to be safe (see here).
Despite offers of foreign assistance, the Algerian government made clear that it would run the operation alone and was not prepared to negotiate with the hostage-takers. Although it is said to have allowed one unarmed US surveillance drone to fly over the gas plant on Thursday, it refused the United States’ further offers of sophisticated surveillance assistance (see here).
At around 2pm on Thursday 17th January, the Algerian army launched an attack on the gas plant using ground troops backed up by helicopter gunships. During the course of the campaign, missiles were reported to have been fired at the militants as they attempted to move a convoy of trucks containing the hostages. It is still not clear how many hostages and hostage-takers were killed during this operation, but it was reported by the hostage-takers that 35 hostages and 15 militants were killed by Algerian army helicopter fire (see here).
The hostage crisis continued on Friday 18th January as the Algerian military moved in to surround the core gas facility where the remaining hostage-takers were reported to have taken cover, with at least seven hostages. It is reported that they found access to this part of the site difficult and the operation ended tragically with the seven remaining hostages being shot by the hostage-takers at point blank range (see here).
At the end of the whole operation, it is estimated that at least thirty nine foreign workers were killed along with twenty nine hostage-takers. Nearly 700 Algerians survived along with 100 foreign workers. Three of the hostages remain unaccounted for. The three hostage-takers that survived were detained by the Algerian authorities (see here and here).
Law enforcement framework:
The first point of analysis for this post will be to consider the Algerian hostage rescue operation against the framework of law enforcement and human rights case law. In particular, it will be considered whether the loss of the hostages’ lives during the operation by the Algerian army might constitute violations of their right to life.
As Algeria is a signatory to the ICCPR, it is bound by the obligation in Article 6 not to “arbitrarily deprive” anyone of their life. It is also bound by Article 4 of the African Charter on Human and People’s Rights which states that “no one may be arbitrarily deprived” of their right to life.
Although there has not been much guidance from the Human Rights Committee (HRC) or the African Commission on Human and People’s Rights on how the notion of ‘arbitrariness’ should be defined, case law from the HRC, Inter-American Commission of Human Rights and African Commission on Human People’s Rights combined show that the concept can be seen to encompass the following four requirements:
(i) that the lethal force was employed with a legal basis;
(ii) that the deprivation of life was ‘strictly necessary’ in the circumstances;
(iii) that the use of force employed was proportionate to the danger it is used against; and
(iv) that reasonable precautionary measures were taken that deprivations of life might be avoided
(See Melzer, Targeted Killing in International Law on the notion of ‘arbitrariness’ in the ICCPR, African Charter of Human and People’s Rights and American Convention of Human Rights, p92-102).
In looking to see whether the deprivation of life was ‘strictly necessary’ in the circumstances, one of the factors to consider is whether the use of potentially lethal force was ‘strictly unavoidable’ to protect any person from imminent death or from serious injury. In looking to see whether reasonable precautionary measures were taken, it is relevant whether the authorities planned the operation in such a way as to ensure that recourse to lethal force would, to the greatest extent possible, be minimized and whether all feasible precautions were taken in the means and methods employed.
Applying this law to the situation at the gas plant, one might wonder whether the Algerian haste to enter the plant and employment of heavy weaponry might have been a breach of its obligations to use force that was proportionate and take due precautions before starting the operation.
Certainly, as events unfolded at the gas plant, there was a feeling that the Algerian army may have been too hasty in their decision to enter the plant and too heavy handed in their military response. As the news from the gas plant emerged during Thursday and Friday, there were several statements on the part of foreign governments which suggested a level of unease with strategy employed by the Algerian military.
There was also criticism of the fact the Algerian army refused to enter into negotiations with the hostage-takers. It was thought that at the very least, entering into negotiations with the group might have bought the army more time and allowed them to conduct greater surveillance of the plant to ascertain exactly where the hostages were being held. It was reported, for example, that the United States had offered Algeria sophisticated eavesdropping equipment which might have been able to greater assist them to minimize casualties among the hostages. Such an approach might have enabled them to take a “precision approach” as opposed to a “sledgehammer approach” said Lt General Frank Kearney, a retired deputy commander of the United States’ military Special Operations Command.
The Algerians defended its actions on the basis that a decision needed to be made immediately and they had not requested assistance from other nations. They also said that they had received intelligence suggesting that there was an imminent threat that the hostage-takers would blow up the facility.
Although the European Convention of Human Rights does not contain the word ‘arbitrary’ in Article 2, it contains a important body of case law on the right to life. This can provide guidance on how various aspects of the right might be interpreted by the HCR or the African Court of Human and People’s Rights in the future. The case law from the European Court of Human Rights on the right to life show that the Court has repeatedly given States a wide margin when appraising decisions that were taken in the ‘heat of the moment’. As long as the State officials planning an operation honestly believed that the force employed was necessary at the time to save lives, the Court has a practice of finding this sufficient justification, even if it later it transpires that the authorities were wrong (Andronicou and Constantinou v Cyprus, para 192 and McCann and others v UK, para 200).
This was perhaps most drastically seen in the Moscow theatre siege case – Finogenov and others v Russia – when although the hostage rescue operation went horribly wrong, the court was still willing to be lenient to the authorities about the decisions that were made. It stated in this respect:
The Court concludes that there existed a real, serious and immediate risk of mass human losses and that the authorities had every reason to believe that a forced intervention was the “lesser evil” in the circumstances. Therefore, the authorities’ decision to end the negotiations and storm the building in the circumstances did not run counter to Article 2 of the Convention (Finogenov and others v Russia, para 226).
In the same case, the Court was seen to sanction a departure from the rigorous standard of “absolute necessity” in instances where the authorities had to act under tremendous pressure and their control of the situation was minimal (Finogenov and others v Russia, para 211). In doing so, it stated that it is prepared to grant States a margin of appreciation, as far as technical or military aspects of a situation are concerned on the basis that it recognizes that States often have to make difficult and agonizing decisions in such situations (Finogenov and others v Russia, para 213).
The Court also explicitly stated in this case that it would not speculate on the question of whether as matter of principle it is always necessary to negotiate with terrorists. This – it has said – would severely limit a State’s bargaining power in the event of such a crisis. (Finogenov and others v Russia, p224)
On the basis of the large measure of margin of discretion that is given to States in these situations, it is unlikely that a human rights tribunal would consider the timing of the Algerian’s decision to storm the plant – and its arguable failure to take due precautions in this regard – a breach of the hostages’ right to life. But what about the weaponry that they employed? Can it ever be proper to employ a helicopter gunship in the context of a law enforcement operation? Without further details of the use of weapons onboard, their ability to discriminate between hostage-taker and hostage and their exact role in the operation, I don’t think that it can be concluded that their employment would constitute a prima facie violation of the right to life. But it can certainly be asked whether the military response was proportionate in the circumstances?
If Algerian army’s sole aim was to free the hostages, it has been suggested that a much more ‘precision’ approach should have been possible. But if we consider that the aim of the Algerian military was to prevent the hostage-takers from blowing up the gas installation, we can see how the balance of the proportionality equation changes. What did the planners of the operation think would be the consequence of such a blast? The death of all the 830 works on the site? If this is the factual scenario that Algerian authorities felt might be imminent, it is more likely that the force employed by the Algerian military would be considered proportionate to its aim to save civilian lives on a massive scale.
That being said, any investigation into the military action will have to consider whether the hostage-takers were given the opportunity to surrender, if that was reasonable in the circumstances (Suarez de Guaerrero v Colombia, HRC, para 13.1-2). This consideration is particularly relevant considering the questions which were asked in the press as to whether the very high level of deaths among the hostage takers might be an indication that the Algerian military might have deliberately instigated a ‘kill’ rather than ‘capture’ policy (see here and here).
This brings me to my final comment, which is that no matter how unrepentant the Algerian authorities may be about the way in which they conducted the operation, Article 2 of the ICCPR contains an obligation to conduct a full and official investigation into the incident at Amenas. This should include a thorough review of what happened and the decisions which were taken at each step of the operation.
In conclusion, it seems unlikely that the Algerian operation against the gas plant would be found to have violated the right to life of either the hostages or the hostage-takers. In such large-scale terrorist attacks where large numbers of human lives are at risk, States are given wide leniency about how they decide to run counter-terrorism operations. And as long as they make decisions based on an ‘honest belief’ that their chosen course of action is necessary to save lives, a Court will rarely question the technical details of the chosen operation. That being said, information is still lacking about the weapons employed by the army on the site and the helicopters supporting the ground troops. It is also not clear whether the hostages were given a chance to surrender or whether the army was simply given instructions that they should be killed. More details may still also emerge regarding the exact reasons that motivated the Algerian’s decision to storm the plant when they did. Once further facts emerge on these points, it is possible that this conclusion would change.