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Friday, March 8, 2013

Response to Goodman

As promised, here is a link to my full response to Ryan Goodman's provocative new essay on the capture and kill requirements under the laws of war.  In particular, I make two points regarding Goodman's theory that contribute to the stimulating conversation at Lawfare that has been generated by his essay.

First, it is unclear whether one can use specific prohibitions that restrict the use of force as indirect evidence for a more general principle regarding restrictions on the use of force, or necessity, that is then wider than the specific prohibitions.  Second, the history of the concept of necessity in the laws of war, going back to the Lieber Code and its basic structure, appears to cut against Goodman's interesting argument.

Here is the official abstract:

The Capture-Kill Debate: Lost Legislative History or Revisionist History?
In a recent essay, Ryan Goodman offers a vigorous defense of the duty to capture under the law of war and concludes that attacking soldiers have a duty to use the least-restrictive means of accomplishing their objective. In particular, Goodman contends in his new intervention that the scholarly debate has relied on an impoverished reading of the legislative history of the key international protocols drafted in 1973 and 1974. Having un-earthed a wealth of documents regarding those negotiations, he argues that: (i) the law of war already severely restricts the use of force in various contexts by virtue of specific prohibitions on methods of warfare; (ii) the law of war already prohibits killing enemy combatants who are rendered hors de combat; and (iii) the drafters of the Additional Protocols supported a “least-restrictive-means” interpretation of the concept of necessity, meaning that killing is only lawful when soldiers have no other way of neutralizing the enemy (e.g. capture is not feasible).

For reasons that I articulate in the present commentary, I believe that none of these arguments provide definitive support for a duty to capture under the laws of war. First, with regard to Goodman's first two arguments, one cannot move from a list of specific jus in bello prohibitions to a generalized principle regarding the nature military necessity that then swallows and expands the specific rules. Second, the arguments ignore the Lieber Code's definition of military necessity as "all direct destruction of life or limb of armed enemies" and "those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war." Although the law of war has advanced considerably since Lieber, its general structure remains relatively unchanged. Third, the drafters of the Additional Protocol did not codify the least-restrictive means test; its provision on unnecessary suffering cannot be read to include it since unnecessary suffering and unnecessary killing are conceptually distinct.

The full essay can be downloaded here