A/HRC/44/38 law alone but would consider human rights treaties obligations, the territoriality and scope of contemporaneous military actions and State behaviour overall.95 45. An example of the systemic integration approach is found in the judgment of the Supreme Court of Israel in Public Committee against Torture in Israel v. Government of Israel: A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. In our domestic law, that rule is called for by the principle of proportionality. Indeed, among the military means, one must choose the means whose harm to the human rights of the harmed person is smallest. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. 46. In that case, the Court called for a case-by-case analysis, recognizing that, while that may not always be realizable, it is a possibility that should always be considered. 47. The African Commission on Human and Peoples’ Rights adds: “Where military necessity does not require parties to an armed conflict to use lethal force in achieving a legitimate military objective against otherwise lawful targets, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option”.96 48. In a slight variation, ICRC (controversially) emphasizes moral imperatives rather than just situational necessities when it states that to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force would defy basic notions of humanity.97 49. Two reasonings may thus be adopted when assessing the legality of targeted killings under the above-mentioned ambiguous scenarios. Both are predicated on some degree of fluidity, required by the overall context and the specific situations: (a) The first is that one body of law can provide interpretive reference to the other. The lawfulness of a targeted killing under humanitarian law should be assessed with reference to human rights principles, which means that whether the target was a combatant or a civilian engaged in hostilities may not be considered determinative; 98 (b) The second approach would be to assess the situation or action under both legal regimes and then determine if some of the additional constraints inherent to the human rights regime should be applied because the context allows or mandates it. 50. It is the Special Rapporteur’s opinion that such contextual and situational analyses are inherent to all effective assessments of the use of force,99 including in the scenarios presented above. For compliance with international human rights law, this means assessing necessity, proportionality and precaution through a situational analysis that takes into account the 95 96 97 98 99 As highlighted by Dapo Akande in 2019, “there are occasions when subsequent practice can legitimately be used to interpret the Charter … One can think of the interpretation of the concept of threat to the peace to include internal matters or humanitarian challenges. This has opened the door to the Council authorising force on numerous occasions now for the purpose of protection of civilians or in internal situations.” (www.ejiltalk.org/the-diversity-of-rules-on-the-use-of-force-implications-forthe-evolution-of-the-law/). General comment No. 3 on the African Charter on Human and Peoples’ Rights: the Right to Life (art. 4), para. 34. www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf; https://harvardnsj.org/2013/06/are-wereaching-a-tipping-point-how-contemporary-challenges-are-affecting-the-military-necessityhumanity-balance/. This approach is not without its risks, such as the two bodies of law being used interchangeably, or humanitarian law concepts being used in a manner that compromises the integrity of the human rights regime as a whole. https://harvardnsj.org/wp-content/uploads/sites/13/2014/01/Modirzadeh-Final.pdf; William Schabas, “Lex specialis? Belt and suspenders? The parallel operation of human rights law and the law of armed conflict, and the conundrum of jus ad bellum”, Israel Law Review, vol. 40, No. 2 (2007), pp. 592–613; Milanović, “Norm conflicts, international humanitarian law and human rights law”. See, for example, www.ohchr.org/Documents/Issues/Executions/HumanRightsDispatch1.pdf. 13