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