Search This Blog

Tuesday, March 5, 2013

The Capture-Kill Debate Continues

I recently authored an essay called The Duty to Capture, forthcoming in the Minnesota Law Review. A draft of the essay is available on ssrn and the final version will be published shortly.  As Ken Anderson correctly notes at Lawfare, some readers might be misled by my title into thinking that I argued in favor of a broad reading of the duty to capture.  Instead, I spend most of the essay expressing skepticism about various arguments that purport to find a duty to capture during many targeted killing or armed conflict operations.  In that sense, the essay might be more appropriately titled "Is there a Duty to Capture?"

Of course, there is a duty to capture, and it applies during domestic law enforcement actions which are subject to the constitutional requirements of the Fourth and Fifth Amendments.  There is also, arguably, a duty to attempt capture during situations governed by international human rights law.  Consequently, I attempt to provide in the essay a complete understanding of this duty, when it arises, and what facts or legal requirements might displace or block it.

In particular, I spend much time analyzing attempts to "co-apply" international human rights law with the law of armed conflict.  This "co-application" doctrine has gained increasing traction in recent years, with several scholars suggesting that both legal regimes can and should be applied at the same time.  Consequently, rules from human rights law should be applied right along with the rules of armed conflict.  The co-application view is especially prominent in cases of non-international armed conflict, which has relatively few codified rules; several scholars argue that the gaps should be filled by human rights law.  This might be one way of finding a duty to capture during armed conflict situations.

In the "Duty to Capture," I express concern regarding these co-application doctrines.  In particular, I argue that the concept of necessity in human rights law and the law of war mean completely different things.  This is relavent because the duty to capture allegedly applies when killing an enemy combatant is no longer truly necessary.  The question is what is meant by necessity in this context?

In human rights law, necessity often means "the least restrictive means."  In other words, there is no other alternative, or at least not one with less infringement on the individual's liberties.  So the action is necessary if no other action would achieve the desired results for the government actor in question.

In contrast, necessity in the law of war means something completely different.  At least since the Lieber Code, necessity has been defined as "military necessity," which "admits of all direct destruction of life or limb of armed enemies," in the words of the Lieber Code.  This definition is fundamentally incompatible with the least-restrictive means definition of necessity.

However, in a recent article, forthcoming in the European Journal of International Law, NYU Prof. Ryan Goodman argues that a least-restrictive means definition of necessity can be found in the laws of war, and he argues that support for this concept can be found in the travaux preparatoires for the Geneva Convention Additional Protocols.  The practical consequence to this argument, if true, is that the law of war imposes a duty to attempt capture of enemy combatants where feasible.  

I am very skeptical of this argument and am preparing a full response.  Until then, various responses and replies by Prof. Goodman have been catalogued here (follow the links in the itemized list to read the full exchange).  


Anonymous said...

excellent piece of information, I had come to know about your website from my friend kishore, pune,i have read atleast 8 posts of yours by now, and let me tell you, your site gives the best and the most interesting information. This is just the kind of information that i had been looking for, i'm already your rss reader now and i would regularly watch out for the new posts, once again hats off to you! Thanx a lot once again, Regards, obiee training in hyderebad

Barbara Houk said...

Thanks for raising this issues. I really appreciate the research you put into it. - Barbara Resume Proofreading

Allen jeley said...

Nice post and its tell us a true story i appreciate you thanks for share it paraphrasing tools .

Gaurav mehta said...

Nice work by admin Chhattisgarh Board 12th Result
Chhattisgarh Board 10th Result
PSEB 12th Result
PSEB 10th Result
Assam Board HS Result
Assam Higher Secondary Result
Assam HSLC Result
JAC Intermediate Result
Jharkhand JAC 10th Result
Orissa CHSE Result
BSE Orissa 10th Result
Orissa Board HSC Result
Telangana Inter 2nd Year Result
Telangana Intermediate Result
Telangana SSC Result Thanks

sarah saad said...
شركة نقل عفش بالرياض
شركة نقل عفش بجدة
شركة نقل عفش بالدمام
شركة نقل عفش بالمدينة المنورة
شركة مكافحة حشرات بالدمام
شركة نقل اثاث بجدة
شركة نقل اثاث بجدة

Sam Rafferty said...

Intermediate Result 2017
BSEB 12th Result 2017
CBSE 12th Result 2017
Inter Result 2017