I have just posted a new draft on ssrn called The Duty to Capture. The article describes the controversy over when the government is required to attempt capture of a suspected terrorist before resorting to lethal force. Predictable, I conclude that the question depends on whether human rights law or international humanitarian law applies. Unpredictably, I argue that the key issue is the concept of necessity and that the term has completely different meaning in these two legal frameworks (human rights vs. armed conflict).
In particular, I spend a long time discussing Francis Lieber's understanding of military necessity, something that I think is often overlooked in contemporary debates about the principle of necessity. Scholars often quote the definition in article 14 of the Lieber Code, but sometimes ignore articles 15 and 16 which complete the definition. Only by looking at the entire Lieber Code can one understand what Lieber meant by military necessity. Legal historian John Witt's forthcoming book on Lieber, entitled Lincoln's Code, is excellent on this point. Drawing on this historical understanding of Lieber, I conclude that Lieber's version of the principle still operates -- with only little alteration -- in the contemporary law of war.
Finally, the article closes by suggesting that human rights law applies when the state acts as a sovereign over its own subjects, but that international humanitarian law applies when the state acts as a belligerent. This distinction is inspired by historian Stephen Neff's excellent book on the Civil War, entitled Justice in Blue and Gray, which is well worth a read. However, I do not conclude that being a U.S. citizen automatically makes an individual a "subject" under a sovereign, as opposed to a belligerent. Rather, I conclude that belligerency is always a relationship between groups, and that the relevant question is whether the United States stands in a relationship of belligerency to a non-state organization (i.e. terrorist group) of which the individual is a member.
Here is the full abstract of The Duty to Capture:
The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and evaluates internal debates within these regimes over when a duty to capture might apply. At issue in these debates, regardless of the body of law that applies, is the scope and content of the concept of necessity, i.e. when is it truly necessary to target an individual with lethal force. The key question is whether a unified and trans-regime understanding of the concept could promote doctrinal unity across legal regimes. However, this Article concludes that the concept of necessity stubbornly defies such attempts; necessity is a term of art with a distinct history and meaning in each body of law, and unification of these meanings can only come at the cost of betraying the fundamental precepts of one legal regime over the other. Part I begins by examining the scope of international humanitarian law and concludes that the current literature often unduly constrains its application; a new analysis is offered of the classification of armed conflicts, the level of organization required before a non-state actor can be a party to an armed conflict, and the legal geography of armed conflict. Part II examines the concept of necessity and concludes that military necessity (destruction of “life and limb” related to the war aim) is fundamentally incompatible with human rights law and its understanding of necessity as the least-restrictive means. Finally, Part III concludes that the IHL regime, and its permissive notion of military necessity, should apply when the state is acting as a belligerent against other co-equal belligerents, but that human rights law, and its more restrictive notion of necessity, should apply when the state acts as a sovereign over its own subjects.Since this is a draft, comments, criticisms and suggestions are most welcome, either in the comments section or off-list to me directly.