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War on Terror and Criminal Law. Some General Remarks

Intentionally killing a human being is the most serious kind of behaviour criminal law can deal with. The very possibility of justifying that offence has been dramatically restricted by the criminal law doctrine. The conduct’s seriousness is even greater when the intentional killing is committed by a public agent (e.g. a policeman). Indeed, international human rights law notes that solely self-defence and certain cases involving the legitimate fulfilment of a duty by public officers, the execution of a death penalty,1 the occurrence of death while attempting to arrest an offender, while persecuting a fleeing prisoner, or during the repression of riots can be considered as justificatory contexts for the causation of an individual’s death. And this, as long as several specific requirements are met (Art. 6 ICCPR, Art. 2 ECHR). However, even the referred regulation is controversial. Indeed, many international as well as criminal law scholars consider that the so-called ‘shoot-to-kill’ by police officers is never justifiable.2 Police officers’ behaviour has always to meet the requirements of the justificatory defence of fulfilment of a legal duty, which is closely connected to the principles of necessity and proportionality stricto sensu. Thus, only the cases involving recklessness with regards to the death of the aggressor, the offender or the fled prisoner, will be admissible. If the agent, however, acts with intent or knowledge regarding the individual’s death, this behaviour cannot be justified.3 I.