The Capture-Kill Debate Underway at Lawfare, and Jens Ohlin’s Observations at Lieber Code

by Kenneth Anderson

A recent Lawfare post by Jack Goldsmith noted the appearance of NYU professor Ryan Goodman’s controversial new EJIL article, “The Power to Kill or Capture Enemy Combatants.” It was followed by an even more provocative summary of it in Slate.  Both pieces have launched a very interesting debate between Goodman, on the one side, and a group of well-known LOAC scholars (Geoff Corn, Laurie Blank, Chris Jenks, and Eric Jensen), on the other.  Our own KJH has now weighed in with a guest post of his own at Lawfare.  (Bobby Chesney, introducing Kevin’s guest post at Lawfare, links the earlier posts.)

There is an important voice taking part only indirectly in the Lawfare discussion, however – Jens Ohlin.  I earlier flagged at Lawfare a new piece by Jens on exactly this question, “The Duty to Capture,” that reaches, as Kevin has noted, a conclusion almost diametrically opposite to Ryan’s. So much so that when I tagged it as a “Readings” at Lawfare, I suggested that the title might benefit from a question mark – The Duty to Capture?  The debate over at Lawfare is usefully read with this article by Jens to hand.

Jens is taking part “indirectly,” so to speak, because he also runs his own terrific blog, Lieber Code, where he has been discussing exactly these questions.  He just posted a new comment on his blog that goes to the heart of the issue:

In the “Duty to Capture” … I argue that the concept of necessity in human rights law and the law of war mean completely different things.  This is relevant 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.

http://opiniojuris.org/2013/03/05/the-capture-kill-debate-underway-at-lawfare-and-jens-ohlins-observations-at-lieber-code/

7 Responses

  1. I would like to note the in my humble opinion, Kevin’s contribution to this discussion is an extremely important one…very well done.  The whole discussion is well worth reading.
     

  2. John: yes, I quite agree, both re Kevin’s contribution and the whole exchange, especially if one adds Jens’ pieces.

  3. Response…
    There is no “necessity” requirement under the ICCPR because the right to life is the right to freedom from “arbitrary” deprivation of life.  Not all countries are bound the the European Convention on HR and its interpretations by the Eur. Ct. H.R., so their standard is not global.  Moreover, under the ICCPR a person has to be in the actual power or “effecive control” of the targeting state in order to have even a human right to freedom from “arbitrary” deprivation of life!  So it turns out that the laws of war actually require a higher standard than the “arbitrary” deprivation standard! esp. re: the prohibition of unnecessary death, injury or suffering . and see http://ssrn.com/abstract=1718548 as well as http://ssrn.com/abstract=1520717
    In the U.S., in time of relative peace, does a swat team really have a duty to capture (and to merely wound instead of kill)?  In the U.S., if a member of al-Qaeda sneeks into the U.S. and is about to set off a potentially devastating nuclear device, does the U.S. have a duty to capture under the law of self-defense?  Certainly not under human rights law.

  4. Jordan, I think all concerned have eliminated the situation where the individual being targeted presents an imminenet threat of grave harm.  If so, there is obviously no duty to capture under any body of law, humanitarian or human rights.  

    Jens Ohlin’s article is quite insightful on the different concepts of necessity, which are similar to the distinctions between “military necessity” and “public necessity” that I articulate in my article on the commander-in-chief.  To summarize, military necessity is a McCulloch v. Maryland concept of necessity and public necessity requires an imperative necessity that justifies the infringement of the specific private right(s) invaded.

  5. John,

    Thanks for the kind words…

    I have to say, though I don’t accept his overall conclusion, I think Ryan makes a much stronger case for RUF than I would have thought possible.

  6. You’re certainly welcome, Kevin.  And I absolutely agree with you regarding Ryan’s article in this case.

  7. John: again, with respect to the ICCPR, there is no “necessity” requirement with respect to the right to life, or the right to freedom from “arbitrary” detention for that matter — no matter what the context otherwise involves.
    The only necessity test in the ICCPR might involve derogation in time of public emergency, officially proclaimed as such, etc. re: derogable rights, and in real world practice and general patterns of opinio juris about such practice the actual test turns out to be something like reasonably needed.
    Yes, the human rights standards at times are different than the law of war standards.
    p.s. the phrase ”immient threat” should be banned from discussion [does Eric Holder really mean that the US can target an "immient" threat in the US if capture is not feasible?] – it has nothing to do with the law of self-defense, since an imminent threat is not even a threat and UN 51 does not allow the use of armed force against a “threat” (unless one ignores the text of 51), much less a non existent but “imminent” threat.  The law of war may allow the targeting of some “threats,” but “imminent, non-existent threat? Sounds like a ghost of the unacceptable 2002 Bush NSS.

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