Jens Ohlin Posts Response to Ryan Goodman Paper on Capture Over Kill

by Kenneth Anderson

The multi-blog (trans-blog?) debate over whether there is a duty to capture in the law of war now has a reply to Ryan Goodman from Jens Ohlin, in a working paper at SSRN, “The Capture-Kill Debate.”  The on-going discussion began, faithful readers will recall, with Ryan Goodman’s EJIL article on this topic and a general audience version of the thesis for Slate.  After Jack Goldsmith flagged it at Lawfare, it prompted a vigorous debate there between Ryan and what has come to be known in the literature as “CBJJ” – otherwise known as Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Jensen.  (Follow links at this post by Bobby Chesney at Lawfare.) Kevin weighed in at Lawfare with a guest post of his own, and various of our longtime commenters, including John Dehn and Jordan Paust, have added thoughts here at OJ.  Meanwhile, over at Lieber Code blog, Jens had been writing about this general topic for a long time, including talking about his forthcoming article, “The Duty to Capture” (which, as I suggested, perhaps merited a question mark in the title, given the conclusions of the article).  Jens has been hard at work, and has just posted to SSRN a response to Ryan, a short, fifteen page paper responding directly to Ryan’s paper as well as taking up some of the issues raised by CBJJ.  Here is the abstract (graf break added) to Jens’s paper, The Capture-Kill Debate, at SSRN.  Highly recommended (as we Proud Followers of Larry Solum say):

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.

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