Guest Post: Goodman Responds to Heller on Capture v. Kill

[Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. You can also find him on Twitter: @rgoodlaw]

In a forthcoming article in the EJIL (“The Power to Kill or Capture Enemy Combatants”), I argue that the law of armed conflict prohibits the use of lethal force, in some situations, when it is manifestly unnecessary to kill an individual rather than injure or capture them to accomplish a military objective.

On Lawfare, Kevin Jon Heller posted an initial critique of my article (Heller 1.0). I responded pointing out what I consider flaws in his analysis—including extravagant claims such as “no scholar reads Art. 35(2)” of the 1977 Protocol as I do. Heller followed up with a second round of criticisms in an Opinio Juris post (Heller 2.0). Overall, his analysis includes some of the most formidable challenges to my article, and I appreciate how he has presented many of these criticisms. I am grateful to OJ’s editors and to Professor Heller, in particular, for this opportunity to respond to his second round of criticism in this Guest Post.

In this reply, I raise three types of concerns about Heller 2.0’s analysis. First, Heller overlooks clear and contrary evidence in a leading article that Heller himself invokes. Second, Heller reads a provision of an international instrument almost in the exact way that has been understood to reflect a defect in its wording and corrected in later treaties. Third, Heller makes persuasive points about the ICRC Commentaries to the 1977 Protocol, but I argue why my position is, on balance, more convincing.

The relevant treaty provision for our discussion is Article 35 of the 1977 Protocol, which states in pertinent part:

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.

2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

By way of background: Heller’s critique on Lawfare tried to argue that “injury” and “suffering” in Article 35 cannot include death. He made such arguments as “Dead combatants are not injured and do not suffer;” and “Being dead … is not a medical issue.”  In response, I showed the multiple ways in which the travaux and leading scholars recognize that unnecessary death and gratuitous killing is covered at least by the “superfluous injury” prong of Article 35(2).

Heller 2.0 now seems to accept that Article 35 includes protection from unnecessary death and unlawful killing. He focuses instead on the idea that some passages refer to the suffering of “disabled men”—and thus Article 35, on his view, does not regulate the death of combatants in battle. It regulates the injuries and suffering of combatants only after they are disabled (including Art. 35’s specific concern about rendering their death inevitable). Let’s take a step back, and first describe this line of argument in its most persuasive form. On this view, parties have a generally unqualified right to kill enemy combatants during hostilities; Article 35 of the Additional Protocol accordingly does not prohibit killing in battle; what Article 35 does do is require that the way in which combatants are attacked (including with lethal force) should not amount to gratuitous injury or suffering.

I contend that the right to use armed force is limited to the objective of rendering individuals hors de combat (taken out of battle) or, in the collective sense, to defeating enemy forces. Parties have a right to kill enemy combatants during hostilities, but that right is constrained when killing is manifestly unnecessary to removing an individual from the battlefield. In some circumstances, it will thus be unlawful to use lethal force when a fighter could clearly be rendered hors de combat just as easily— and without endangering the attacking party–by injury or capture rather than death. That rule is contained in the prohibition on superfluous injury and unnecessary suffering of combatants under Art. 35 of the Protocol. Indeed, I do not claim that this was the understanding of the law reached at Saint Petersburg in 1868 or the Hague in 1907. However, it was the understanding of the rule reached in the 1970s negotiations that culminated in the codification of the Protocol.

Let’s now consider the main points in Heller 2.0’s OJ post.

1. Is Heller correct about Henri Meyrowitz’s article and the preamble of Saint Petersburg?

In response to Heller’s Lawfare post, I relied upon Henri Meyrowitz’s leading article, The Principle of Superfluous Injury or Unnecessary Suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol 1 of 1977, 34 International Review of the Red Cross 98 (1994). As Meyrowitz explains, Article 35 includes the term “superfluous injury” to correspond to the French term “maux superflus,” which was specifically meant to include the concept of “superfluous death.” Heller 2.0 appears to accept that proposition—that Article 35 prohibits “superfluous deaths”—while Heller 1.0 rejected it. However, Heller 2.0 contends that Meyrowitz “provides no support for Goodman’s supposed duty to capture. Instead, it completely undermines it.” Heller’s principal argument is that Meyrowitz’s analysis proves that Article 35 applies only to the unnecessary death of already-disabled combatants after battle, not unnecessary killing in battle.

First, contrary to Heller’s principal argument, Meyrowitz specifically concludes that the principle of superfluous injury and unnecessary suffering under Article 35 applies to unnecessary killing in battle. Meyrowitz unequivocally states:

To declare that it is unlawful, for example, to shower bombs and shells on troops that are completely defeated, encircled or retreating, and in any case practically defenceless, thereby not even affording them the opportunity to surrender, the principle of superfluous injury or unnecessary suffering expressed in [Article 35(2)] … may exceptionally be invoked.

See also Nils Melzer, Targeted Killing or Less Harmful Means? – Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity, 9 Yearbook of International Humanitarian Law 87, 97 & n. 54 (2006) (drawing attention to this part of Meyrowitz’s analysis of Art. 35). These are clear examples of deaths in battle—and inconsistent with Heller’s account of Meyrowitz and Heller’s interpretation of Article 35. Remarkably, Heller 2.0 does not address or attempt to reconcile this passage by Meyrowitz, despite Heller’s suggesting that Meyrowitz “completely undermines” my argument, and despite my including the quote in my Lawfare response to Heller 1.0.

Second, in relying on Meyrowitz, the core of Heller’s argument advances an interpretation of the St. Petersburg Declaration of 1868 that the Meyrowitz article itself tells us must be rejected. That is, Heller reads St.Petersburg almost in the exact way that, Meyrowitz explains, involves a defect in its wording—and which was subsequently corrected in treaty law including the 1977 Protocol. I implore any reader who wishes to assess this for themselves to read the first 8 pages of Meyrowitz’s article (pp. 98-105).

Here are the moves that result in Heller’s error. In his OJ post, Heller 2.0 argues that I should have noted that Meyrowitz refers to the fourth preambular paragraph of St.Petersburg in the following quote. Meyrowitz states:

The French version … replaced, or rather corrected, the notion of unnecessary suffering by using the term “maux superflus”, which conveys the further notion of superfluous deaths expressed in the fourth preambular paragraph of the Declaration of 1868 (p. 101).

Why is this significant in Heller’s view?  Heller proceeds to quote the fourth preambular paragraph, which states in full:

That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.

Upon quoting the St. Petersburg paragraph, Heller contends:

Meyrowitz is not talking about any unnecessary deaths, such as those that are caused by a choice to kill instead of capture. On the contrary, he is talking specifically about deaths that do not take place in battle, but result from weapons that not only disable a combatant, but also inevitably cause him to die from his wounds after the battle is over.

However, by this point in the article, Meyrowitz has already explained the following: The fourth preambular paragraph had a defect in its wording which has since been misconstrued by governments and writers (in a way similar to Heller’s misreading) (p. 99). The paragraph already took into account actions that render death inevitable and suffering of disabled men, but it failed to properly convey the drafters’ “intended meaning” to include physical injuries and “superfluous deaths” (p. 99-100; 104). This error was corrected in the authentic French text of the Hague Regulations of 1899 and 1907 by using the term “maux superflus” (p. 101). And, as Meyrowitz further explains, the erroneous constructions of the past were “inconsequential” since they were “corrected in Article 23 e) of the Regulations of 1899 and 1907, which gave to the fourth preambular paragraph of the Declaration of 1868 the form in which it entered positive law and obtained the status of a principle of customary law” (p. 101; see also 102). Furthermore, the English version of the Regulations failed to include the concept of “maux superflus,” but they were translations and not the authentic text (p. 104).  The 1977 Protocol finally corrected the error in English by also bringing the official English text of that treaty into line with the concept of “maux superflus” (p. 104).

In short, Heller’s reliance on the wording of the St. Petersburg paragraph—including his notion that it is limited to actions that render death inevitable and suffering of disabled men—is fundamentally flawed. It overlooks the very elements that were mistakenly excluded—physical injury and “superfluous death”—and corrected in treaty law through the Hague Regulations and 1977 Protocol itself. In addition, readers of Heller’s OJ post might be led to believe that Meyrowitz suggested that the introduction of “maux superflus” brought the Hague Regulations into alignment with the wording of the 1868 paragraph. On the contrary, it was to bring the Regulations into line with the intended meaning of 1868 and to correct the misleading error in the 1868 text!

Notably, it is unclear how the St. Petersburg paragraph would have been constructed if the concept of “maux superflus” and superfluous deaths had been expressly included. What we do know, and what Meyrowitz traces, is that when the term “maux superflus” was first added to international instruments—the 1874 Brussels Project and the Hague Regulations of 1899 and 1907—the reference to “disabled men” was dropped. I do not make claims about the full understanding of the rule in 1868, 1874, 1899, or 1907. Nevertheless, by the 1970s the ICRC, states, and commentators interpreted the principle to include gratuitous deaths and unnecessary killing in battle. As Meyrowitz further explains, the concept of “maux” in Article 35(2) of the Protocol includes “any assault on the life … of persons” (p. 105)—hence “maux superflus” means a superfluous assault on the life of a person. And, as indicated above by Meyrowitz’s examples of Art. 35(2)’s application (e.g., to troops that are “practically defenceless”), his leading analysis specifically concludes that the principle of superfluous injury and unnecessary suffering in the Protocol regulates unnecessary killing in battle in some circumstances. (And a host of other prominent scholars agree with Meyrowitz and me, as documented in my earlier reply to Heller 1.0).

2. The ICRC Commentaries

Heller seizes on a footnote in the ICRC Commentaries, which he believes shows that Article 35 is limited to disabled adversaries. Here is the relevant passage in the body of the Commentaries:

The report of the Rapporteur [of the Additional Protocol negotiations] indicates that: “several representatives wished to have it recorded that they understood the injuries covered by that phrase to be limited to those which were more severe than would be necessary to render an adversary hors de combat”.

As we have seen above, this corresponds to the position of the ICRC (53) and to the intent of the original rule.

Footnote 53 contains the ICRC’s draft text of the Protocol, which stated: “It is forbidden to employ weapons, projectiles, substances, methods and means which uselessly aggravate the sufferings of disabled adversaries or render their death inevitable in all circumstances.” Heller emphasizes the term “disabled adversaries” in the footnote, and he suggests that Article 35 is thus limited to that condition.

The ICRC draft text in footnote 53 could not possibly exhaust the conditions under which the prohibition applies—nor does it exhaust the ICRC proposals in the negotiations. The Commentaries clearly indicate that the draft text is only one component of the final, broader rule. First, the draft text does not include “superfluous injury.” Indeed, the final text would have been extraordinarily narrow if limited to the ICRC draft in that respect. And, when the concept of “superfluous injury” was finalized in Article 35, the reference to “disabled men” dropped out. Second, the application of Article 35 to the deaths of noncombatants disproves Heller’s claim. The prohibition on superfluous injury and unnecessary suffering under Article 35 also protects civilians; for example, it is generally understood to prohibit indiscriminate weapons—which protects the lives of civilians killed in battle. That prohibition is impossible to reconcile with Heller’s notion that the provision is limited to the post-battle suffering of disabled men who survive an attack. Third, as I noted in my EJIL article and Lawfare posts, my interpretation is consistent across the Commentaries on a range of related rules. That is the Commentaries to other articles to the Protocol clearly limit the use of lethal force against combatants in battle (e.g., against individuals who lose their hors de combat status due to escaping or resuming combat; against unarmed guerilla combatants) and, in multiple instances, refer back to the superfluous injury and unnecessary suffering principle in Art. 35 as a source of that constraint.

Moreover, the statement in the Commentaries also refers to “the intent of the original rule,” and the Article must be interpreted to include that element as well. In other words, the footnote text is not exhaustive. What is meant by the intent of the original rule?

The Commentaries give two clues—first, that it corresponds to the quote by the Rapporteur (“‘several representatives wished to have it recorded that they understood the injuries covered by that phrase to be limited to those which were more severe than would be necessary to render an adversary hors de combat’”) and, second, that part of this discussion occurs earlier (by noting “[a]s we have seen above”). Heller argues that the latter notation “indicates that the ‘original rule’ is one discussed earlier in the commentary to Art. 35 —and there is no mention of capture anywhere in that commentary.” It is a remarkable rhetorical move what level of specification Heller demands here (an explicit reference to “capture”). Just as sufficient for our purposes, the Commentaries to Article 35 discuss unnecessary killing. Indeed, as Heller knows well (from my EJIL article and my response to Heller 1.0 and my responses to Corn et al), the Commentaries do refer earlier to the rule that “‘the kind of force which is necessary to compel the submission of the enemy’” should minimize the unnecessary “loss of life … of the party attacked.” (See also Bothe, Partsch & Solf, New Rules for Victims of Armed Conflict, p. 195 (“measures of violence which are not necessary … loss of life and destruction inflicted must have some rational tendency to prompt achievement of a definite military advantage”)). Those discussions also notably correspond with the quote by the Rapporteur. In addition, the Commentaries to article 35 discuss the “fundamental rule,” or alternatively the “basic rule,” that parties are restricted to forms of violence employed to render enemy soldiers hors de combat; and that “[t]he salient feature of the St. Petersburg Declaration is the relatively clear idea of the purpose of military operations, i.e., to weaken the military forces of the enemy.” The Commentaries also explain that rule with reference to the idea that the level of violence should be limited to what is necessary to disarm a combatant:

The object of combat is to disarm the enemy. Therefore it is prohibited to use any means or methods which exceed what is necessary for rendering the enemy “hors de combat.” This rule is the corollary to paragraph 1, which denies an unlimited right to choose the means to harm the enemy. Neither the combatants nor the Parties to the conflict are free to inflict unnecessary damage or injury, or to use violence in an irrational way. All in all, this is the position adopted by the ICRC.

Of course, killing an enemy fighter will generally be an appropriate and rational method to render an enemy hors de combat. But, not always. The above quote explains that the key objective is not to kill, but to disarm or otherwise remove the individual from battle. The use of lethal force is thus prohibited when killing is manifestly unnecessary to meet this objective—e.g., when lesser forms of violence or capturing are equally effective and not dangerous.

Finally, in terms of fully understanding intent of the original rule, as I report in the EJIL article, the ICRC introduced the rule to governments in a 1971 Report with an explanation that it specifically entails capturing rather than killing combatants in some situations. In a section entitled, “Limitation as to the choice of means of harming the enemy,” the ICRC Report reiterated the basic rule that “‘the right of belligerents to adopt means of injuring the enemy is not unlimited.’” And the report elaborated an understanding of that principle in accord with a capture vs. kill formula:

[R]ecourse to force must never be an end in itself. It will consist in employing the constraint necessary to obtain that result. Any violence reaching beyond this aim would prove useless and cruel. The principle of humanity enjoins that capture is to be preferred to wounding, and wounding to killing; that the wounding should be effectuated in the least serious manner — so that the wounded person may be treated and may recover — and in the least painful manner; that the captivity should be as bearable as possible, etc.

The Report concluded that these propositions were part of existing Hague law that “should be maintained or reaffirmed.” And that report connects back up with the ICRC Commentaries to Article 35, which conclude that “the reaffirmation of the prohibition on unnecessary suffering and superfluous injury corresponds to the ICRC’s own proposals. … The principle of the Hague Regulations, Article 23(e) is reaffirmed” (paras. 1431-32).

In the end, Heller correctly identifies the core issue by questioning whether Article 35 regulates unnecessary killing of combatants in battle. Whether that rule imposes a “duty to capture”—whatever that might mean—and the conditions on the application of such a rule are second-order questions for which I outline some possible answers in my article. With respect to the fundamental question that Heller raises, however, the historical evidence that I present ultimately compels the answer that a prohibition on unnecessary killing in battle is a central part of Article 35, and it remains the Law of the Protocol.