The Capture-vs-Kill Debate #6: Rejoinder to Goodman from Corn, Blank, Jenks, and Jensen

1. Goodman's full-length EJIL Article

2. Goodman's short essay on the same topic in Slate

3. The first critique from Corn, Blank, Jenks, and Jensen

4. Jens Ohlin's recent paper relating to this topic

5. Goodman's reply to CBJJ's critique

Task Force CBJJ offers the following response to Professor Goodman's most recent post (and thanks Professor Goodman for that excellent call-sign!).

 We appreciate Professor Goodman’s response and clarification of his position and recognize his goal of being exhaustive in his study and “taking the next step” in the conversation.  However, we simply disagree with the conclusions he draws from his research.  Discourse and debate about the purposes of LOAC and the contents of its obligations contribute greatly to our collective understanding of the law.

 Like Professor Goodman, we (unsurprisingly) stand by our original position.

Contrary to his assumption, we had each read his article before we responded to his Slate op-ed.  Indeed, our observations apply with equal force to his article.  Having read his response and reconsidered his views, while we continue to disagree with his conclusions, we hope there is broad agreement that it is critical to distinguish between debates about the actual content of the law – that is, the specific legal obligations to which states and individuals must adhere – with debates about or proposals for what the law could or should be. We believe we are engaged in the latter.

 We highlight here four aspects of our reaction: 1) use and reliance on sources; 2) interpretation and use of authority, particularly from AP I; 3) the relationship of law and policy; and 4) operational impracticability.

 First, we believe that Professor Goodman places too much emphasis on sources that do not provide evidence that prove his conclusion.  Here, we also highlight Captain Hendersen’s “EJIL Talk!” critique, which seems to have resonated more comfortably with Professor Goodman (and which, ironically, directly rebuts his assertion that anyone who reads his article must agree with his conclusions). Specifically, Henderson writes, “With a few exceptions, the support for your conclusion comes from commentators, not States.”  We agree.  For example, in his article, Professor Goodman quotes the language of article 41, API (“safeguard of an enemy hors de combat”) — which does not textually support the existence of an LRM rule — and then relies on secondary sources to argue for an interpretation that we find hard to reconcile with the actual language agreed on by States.

 Professor Goodman’s reliance on Pictet and other commentators similarly fails to evidence state recognition of specific legal obligations.  The fact that Pictet’s oft-quoted statement, “If we can put a soldier out of action by capturing him we should not wound him, if we can obtain the same result by wounding him, we must not kill him,” can be bolstered with the statements of other commentators, does not turn an aspirational statement into law.  Indeed, reliance on this statement ignores the fact that, despite all those discussions and ideas, the referenced-language and ideals do not appear in the actual agreed-upon language of the treaty or any other LOAC treaty (or military manual).  It also skips over a very important question: if the LRM rule was considered to be a powerful statement of the law at the time (as Professor Goodman asserts), and AP I was intended to be (and is still viewed as) the comprehensive pronouncement of the LOAC’s obligations in relation to employing combat power, why is the rule not present in AP I?  The existence of commentary at the time combined with the very obvious absence of the rule in the treaty is particularly telling: that LRM was aspirational at the time, just as it is now, and not law. That no state which has engaged in armed conflict in the 35 years since the adoption of AP I has adhered to an LRM as a matter of law further indicates that there is no such requirement.  While we will not dispute that the use of these secondary sources may contribute to an increasing call for recognition of the LRM principle, we do not accept that they are binding on states, even “in some circumstances,” as Professor Goodman concedes in the op-ed.

 With respect to the LRM principle in Section IX of the DPH Guidance, we actually believe the ICRC agrees with us.  Professor Goodman concedes as much in his EJIL article when he acknowledges that the ICRC recognized the lex ferenda aspect of Section IX.  We believe the Slate op-ed did not reflect this qualification, but instead portrayed Section IX as a position generally accepted, with only so-called “outliers” like Hays Parks and Michael Schmitt objecting. Ultimately, the fact remains that Section IX provides virtually no probative support for Professor Goodman’s asserted binding legal norm.

 Second, Professor Goodman’s reliance on key provisions of Additional Protocol I is simply misplaced.  The discussion – in both his article and in his response – of Article 44 of Additional Protocol I provides a useful example.  Professor Goodman cites to Article 44 and the associated Commentary as solid support for an LRM rule, quoting the phrase in the Commentary that individuals “should be taken under fire only if there is no other way of neutralizing them.”  Unfortunately, this reliance is entirely inapt.  This discussion in the Commentary (which addresses the obligation of fighters to distinguish themselves from civilians, not any LRM-type rule) applies specifically to individuals whose participation in hostilities is uncertain and, at best, indirect.   Thus, the Commentary explains that the obligation to carry arms openly and distinguish oneself from the civilian population applies to “‘armed’ combatants” and does not necessarily apply to “members of a guerrilla movement who are not armed and whose participation in military operations may or may not be limited, but remains indirect.”  It is this latter group of hard-to-identify and less involved individuals who, according to the Commentary section Professor Goodman is relying on, “should be taken under fire only if there is no other way of neutralizing them.”

 The Commentary offers this explanation because of the unique and specific situation Article 44 addresses: the obligation to positively identify lawful objects of attack within the context of the expanded definition of lawful combatant established by the article.  Accordingly, individuals addressed by this provision are those who must be presumed to be civilians until they engage in conduct that indicates they fall within this expanded definition of combatant. This is entirely consistent with AP I’s imposition of the requirement to resolve any uncertainty as to the status of an individual or property in favor of “civilian.”  (It must also be noted that the entire issue of extending combatant status to these types of individuals was the primary motivation for the U.S. decision not to join AP I - and the motivation for many other reservations - which further undermines the probative value of the provision he cites).  Ultimately, Article 44 is a rule of distinction, positive identification, and post-capture protection.  It provides absolutely no proscription on the means or methods of engaging enemy belligerents once identified as such.

 Similarly, Professor Goodman’s reliance on the notion of “defenceless” in Article 35 and discussions of hors de combat manifests a corresponding distortion of the meaning of terms and their application in the course of military operations. It is clear from the structure, history, and consistent state implementation of Article 35’s general statement and specific prohibitions that its intended focus is on limiting specific means of warfare—that is, weapons—and to a lesser degree, methods of warfare, in order to minimize the degree of suffering caused to those belligerents rendered hors de combat when engaged with otherwise lethal combat power.  The rule against unnecessary suffering, as embodied in Article 35, in no way imposes a restriction on the authority to engage enemy personnel with lethal force.  A comprehensive assessment of the Commentary associated with Article 35 bears this out.

 Also within this framework of AP I, Professor Goodman’s disavowal in his response of any express or implied assertion of a proportionality rule applicable to belligerents is unpersuasive. His heavy reliance on both Pictet’s statement and Section IX of the DPH Guidance indicate this is the precise impact of his thesis, even though he seeks to cloak it within the prohibition against inflicting unnecessary suffering. Imposing an obligation to use less than lethal force to subdue an enemy belligerent operative (under any conditions prior to the enemy being rendered hors de combat and thereby being removed from the presumption of hostility) indicates that the enemy is in fact the beneficiary of a human rights-type proportionality protection. This is not the law. As we noted in our earlier post, belligerents simply are not provided proportionality protection (either in the LOAC sense of incidental casualties or in the human rights sense of proportional force against the object of attack) in the context of armed conflict. How the admonition that, “If we can put a soldier out of action by capturing him we should not wound him, if we can obtain the same result by wounding him, we must not kill him” is not an extension of human rights proportionality protection to a belligerent in an armed conflict remains perplexing.

 A third overarching issue is the aggregation of law and command discretion. Professor Goodman’s response to and characterization of our argument highlights what appears to be a conflation of the lines between law and policy and an inappropriate willingness to interpret policy choices as binding legal obligation.  Emphasizing that the fact that we agree that as a matter of policy a “capture instead of kill” constraint is often imposed on operations undermines our objection to the impracticability of his proposed legal rule reveals a misunderstanding of operational art.  It is important to remember that LOAC forms the outer boundaries of lawful conduct during armed conflict; commanders and national policy decision-makers may always choose to employ a more narrow authority for strategic, operational or tactical benefit in a given situation.

 Imposing a capture instead of kill constraint as a policy limitation is similarly always based on the assessment that restricting otherwise lawful conduct contributes to a tactical, operational, or strategic objective. It is, in essence, a cost/benefit tradeoff that subjects friendly forces to increased risk in order to enhance the likelihood of mission accomplishment. Commanders always have the prerogative to make such judgments and often do so. The accordant assumption of risk is an inherent aspect of achieving a collective operational objective, and accepting that risk is the very nature of military service.  One need only consider lying in an ambush position with orders not to fire until the enemy has fully entered the kill zone. Individual soldiers are constrained at their own personal peril from engaging enemy operatives as they walk right past, but this constraint is imposed to achieve the overall collective objective. A more common example in the context of counter-insurgency operations is the use of ROE to limit tactical and operational lethality in favor of strategic restraint, such as limiting the use of indirect fires or the conduct of night raids in Afghanistan. Like all such constraints on otherwise lawful authority, these are imposed to enhance the likelihood of mission accomplishment.

 Professor Goodman asserts, however, that this practice indicates the existence of a legal obligation to utilize the least injurious means to disable an enemy, deriving this rule from what he asserts is the obligation to refrain from inflicting unnecessary suffering.  Although this may be appealing from a humanitarian and/or moral perspective, that is a fundamentally different objective than that which motivates the practice he asserts as evidence of his rule. These inapposite motivations indicate that the operational practice cannot properly be invoked as evidence of a humanitarian obligation.  Even in the context of the DOJ White Paper (which was the focus of and impetus for Professor Goodman’s op-ed), the imposition of a “no feasible alternative” limitation on the use of deadly force against U.S. citizens is nested in strategic policy considerations.

 The fourth and final overarching concern Professor Goodman’s proposal raises is the impracticability of implementation.  Neither in his op-ed nor his article does Professor Goodman offer any insight into when his proposed rule would be triggered. In what tactical situations would a soldier be obligated to refrain from engaging an enemy who was not yet hors de combat? How could commanders assess when engaging enemy personal who pose no genuine risk is permissible (for example, during a demonstration or feint, where the robust employment of combat power is utilized for deception or distraction purposes) or is a violation of this obligation? Under Professor Goodman’s view, wouldn’t every use of force on the battlefield require an inquiry into whether those killed should have been only wounded?  What would be the standard for assessing criminal accountability for a violation? Continuing with the practical issues Professor Goodman’s proposal raises, when is an enemy protected by a LRM rule? How would soldiers be trained to apply such a rule with regard to both knowing when it is triggered and how to put it into practice (i.e., would they need to train to wound rather than kill)? While the authority to use force triggered by status determinations and the accordant presumption of hostility may at times be factually overbroad, it serves the interests of all armed forces by providing a modicum of clarity in the midst of the chaos of armed hostilities.

Professor Goodman’s extensive work provides interesting insights into this topic and we appreciate his willingness to engage in this discussion, but we feel he overstates the impact of his research by asserting the existence of a clear and obvious binding legal norm.  Pointing to overlooked evidence on an issue to suggest the logic of reconsidering an existing rule is a common and important aspect of the evolution of the law of armed conflict, and a practice that has led to robust debates on the content and meaning of the law in recent years.  We value such efforts, but remain convinced that Professor Goodman has gone beyond this when he concludes that he has discovered the true meaning and reach of this rule.  We also greatly appreciate the spirit of academic discourse that has led to and animated this discussion and look forward to continuing our conversations.