The Capture-or-Kill Debate #8: Kevin Heller Joins the Conversation

The following guest post is the latest in a series comprising a debate as to whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances.  The debate up to this point involved Professor Ryan Goodman, on one hand, and Professors Geoff Corn, Laurie Blank, Chris Jenks, and Eric Jensen writing collectively on the other.  Now, Professor Kevin Jon Heller joins the conversation.  Here are the earlier entries: 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 (see also this post from Jens) 5. Goodman’s reply to CBJJ’s critique 6. CBJJ’s rejoinder 7. Goodman's further response Guest Post from Kevin Jon Heller: As much as I admire Ryan's argument, I find his explanation of Art. 35(2) of the First Additional Protocol very unconvincing. First, Ryan asks “how much clearer would the framers have to be to suggest that 'unnecessary killing' is a part of a ‘superfluous injury and unnecessary suffering’ prohibition?” Well, apparently considerably clearer, because no modern scholar reads Art. 35(2) like he does. Ryan cites the Bothe, Partsch, and Solf treatise on AP I (see p. 41 of his EJIL article), but the quoted text supports his argument only because he reads "unnecessary suffering" in the same way that he reads the ICRC Commentary – as including unnecessary killing.  Here is what they say, in relevant part:

 In applying para. 2 of Art. 35, the suffering or injury caused by a weapon must be judged in relation to the military utility of the weapon.... All such comparative judgments logically lead to an inquiry into how much suffering various weapons cause and whether available alternate weapons can achieve the same military advantage effectively but cause less suffering. The comparison of, and balancing between, suffering and military effectiveness is difficult in practice because neither side of the equation is easy to quantify. Inevitably, the assessment will be subjective... The problem cannot be simplified by restating the preamble of the 1968 St. Petersburg Declaration that to weaken the enemy's military forces it is sufficient to disable the greatest possible number of men

The quoted language does not explicitly state that lethal force cannot be used against a combatant when capture is possible.  At best it can be read either as prohibiting unnecessary killing (which would support Ryan’s argument) or as prohibiting using weapons that will necessarily cause unnecessary suffering to combatants who survive an attack (which would undermine Ryan’s argument).  That said, I think it’s likely that Bothe, Partsch, and Solf would have used the expression “unnecessary death” instead of “unnecessary suffering” had they been endorsing Ryan’s argument. Second, for similar reasons, I disagree that “[t]he plain text of Article 35 is arguably sufficient” to establish Ryan’s thesis. The drafters could easily have written “superfluous injury and unnecessary killing” – now that would have been clear. Indeed, one would think that, had the drafters of Art. 35(2) considered death to be unnecessary simply because capture was possible in the circumstances, they would not have chosen two words (“injury” and “suffering”) that focus solely on non-fatal wounds. Dead combatants are not injured and do not suffer. Indeed, a basic canon of statutory interpretation, ejusdem generis, suggests that "unnecessary killing" is not included within “superflous injury” or “unnecessary suffering.” Third, with respect to Ryan, I think he has misread the ICRC Commentary.  He says that “the Commentaries state that the final text of Article 35 ‘corresponds to the position of the ICRC and to the intent of the original rule’ in which the ICRC had expressly spelled out the lesser evil rule with respect to capture instead of kill.”  Actually, with regard to the “position of the ICRC,” that is not the case.  The language in single quotes comes from para. 1417 of the Commentary, and Ryan quotes it accurately. But he omits, in both his most recent Lawfare post and in his EJIL article (see pp. 42-43), the footnote that comes after “the position of the ICRC” and before “to the intent of the original rule” – footnote 53.  That footnote reads thusly, emphasis mine:

 The ICRC draft was as follows: “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.” This text is even closer to the St. Petersburg Declaration of 1868. The article is entitled: “Prohibition of unnecessary suffering.”

The text makes clear that, in the ICRC’s view, Art. 35(2) is addressed to a very specific situation: namely, where the use of a method or means of warfare injures a combatant but does not kill him.  According to the ICRC, what is impermissible is not killing a combatant it is possible to capture, but using a means or method of warfare that, if it simply disables the combatant, will “uselessly aggravate [his] suffering” or will inevitably lead to his death. Indeed, that is the fundamental problem with Ryan’s interpretation of Art. 35(2): he is trying to shoehorn a prohibition on unnecessary killing into a prohibition that – as has long been assumed by scholars – deals solely with preventing superfluous injury or unnecessary suffering to combatants who survive an attack with a particular weapon.  That conflation appears again on p. 44 of the EJIL article, where Ryan says that Art. 35(2) “includes language suggesting that the test involves a proportionality analysis.”  In defense of that conclusion, Ryan cites para. 1428 of the ICRC Commentary, which states that “in principle it is necessary to weigh up the nature of the injury or the intensity of suffering on the one hand, against the ‘military necessity’, on the other hand, before deciding whether there is a case of superfluous injury or unnecessary suffering as this term is understood in war.”  Once again, however, Ryan’s quotation is lacking context. Here is the sentence that precedes his quote:

 It is clear that in the eyes of the victim all suffering is superfluous and any injury is unnecessary.

That sentence provides further support for the idea that the ICRC views Art. 35(2) as limited to combatants who survive an attack; dead combatants have no feelings.  Moreover, later in the same paragraph that Ryan quotes, the Commentary specifically describes “unnecessary suffering” as a medical issue about the experience of pain:

 This is the case even if the question is considered from the purely medical point of view, as appeared in the “Statement concerning unnecessary suffering presented by the informal working group of medical experts" at the second session of the Conference of Government Experts on the Use of Certain Conventional Weapons. This Statement is as follows:

 “Unnecessary suffering” is a term implying numerous medical parameters. From a strictly medical standpoint it seems impossible at the present stage of medical knowledge to objectively define suffering or to give absolute values permitting comparisons between human individuals. Pain, for instance, which is but one of many components of suffering, is subject to enormous individual variations. Not only does the pain threshold vary between human beings: at different times it varies in the same person, depending upon circumstances.

 It was the opinion of all medical experts that instead of “suffering,” the wound or injury caused by a weapon offered a but still very complex way of defining the effect of that particular weapon. It is still very difficult to compare an injury in one part of the human body with one in a different location. Likewise, general effects caused by a local injury are subject to many variables and make comparison between different individuals difficult. However, if such parameters are taken into consideration, it seemed to the medical experts preferable to use injury instead of suffering.”

 It is quite clear that the French expression "maux superflus" implies the concept of injury as well as that of suffering.

Again, this language is irreconcilable with the idea that Art. 35(2) is addressed to “unnecessary killing” as well as “unnecessary suffering.”  Being dead is regrettable for the combatant, but it is not a medical issue. Nor do we have to worry about variations in pain thresholds between dead combatants. In short: whatever the merits of Ryan’s overall argument, Art. 35(2) of AP I does not support it.  Properly understood, Art. 35(2) is limited to combatants who survive an attack; it says nothing about combatants who don’t, much less prohibit killing combatants who could be captured instead.