Corn, Blank, Jenks, and Jensen Respond to Goodman on Capture-Instead-of-Kill

Capture Instead of Kill: A Dangerous Conflation of Law and Policy

By Professors Geoffrey Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen

In a provocative essay on drone strikes in Slate, Professor Ryan Goodman claims that the Law of Armed Conflict (LOAC) imposes a capture before kill requirement when targeting members of an enemy belligerent group. Goodman writes that

“Here’s a fact that you didn’t hear at the confirmation hearings for John Brennan, Obama’s pick for next CIA chief, or from the administration’s white paper on drone killings: The international rules of warfare require nations to capture instead of kill enemy fighters, especially when lethal force is not the only way to take them off the battlefield.”

Not only is this claim flawed, it’s a dangerous misinterpretation of the legal limitations applicable to targeting in armed conflict.

It is erroneous to assert a legal obligation to exhaust the option to capture before employing deadly force against enemy belligerent operatives. Support for imposing this constraint on belligerent targeting authority simply does not exist in LOAC treaties, customary international law, or the actual practice and opinio juris of states.  More specifically, his assertion that the general principles of military necessity and humanity impose this least-restrictive-means (LRM) limitation on the targeting of enemy belligerents is a fundamental misrepresentation of LOAC’s principles and foundations, derived from what appears to be a misconception that the objective of employing force is to defeat individuals, as opposed to the enemy in the collective sense.  To the contrary, the LOAC, as established, interpreted and implemented by states, has long recognized the authority to lethally target members of an enemy belligerent force based solely on their status as members – an authority unrestricted by an express or implied duty to exclude the feasibility of less-than-lethal means or methods of attack prior to employing lethal force.  The LRM assertion seeks, however, to limit this well accepted authority with what is in effect a proportionality constraint applicable not to protected civilians, but to combatants and other belligerents. Nothing in the law supports this approach.

The provisions of the 1977 Additional Protocol I (API) to the Geneva Conventions offer the clearest evidence that no such LRM rule applies to belligerents. That treaty, derived from the humanitarian tradition of the Geneva Conventions, established the most comprehensive positive LOAC rules providing both the authority to attack lawful targets and the limitations on that authority.  A LRM requirement is not among thos limitations.

Most relevant to the present discussion is Article 52, which defines lawful objects of attack as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”  It is a LOAC axiom that members of an enemy belligerent force are per se military objectives within the meaning of Article 52.  This is reflected not only in the doctrinal publications of most militaries around the world, but also in the International Committee of the Red Cross Commentary to Article 52 itself, which notes “that the definition [of military objective] is limited to objects but it is clear that members of the armed forces are military objectives, for, as the Preamble of the Declaration of St. Petersburg states:  ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; [...] for this purpose it is sufficient to disable the greatest possible number of men.’”  State practice validates that the authority to attack members of the armed forces applies with equal force to attacking members of any organized armed group engaged in armed conflict, whether international or non-international in nature; a view supported by a majority of LOAC experts.

This LOAC axiom is further reflected in Article 43, which provided the first treaty definition of “combatant”, and as the associated Commentary indicates, “it should be explicitly stated that all members of the armed forces [with the exception of medical and similar non-combatant members] can participate directly in hostilities, i.e., attack and be attacked.” This principle, that “belligerent group membership” triggers lawful attack authority, is extended by custom and practice to other belligerent operatives who do not qualify as combatants within the meaning of Article 43.

The LOAC imposes only two limitations on this established authority. First, the prohibition against attacking an individual who “clearly expresses an intention to surrender” or is otherwise rendered hors de combat (placing the obligation to manifest surrender on the potential object of attack, not the attacking force). Second, the prohibition against employing a method or means of warfare calculated to cause unnecessary suffering or superfluous injury (which necessarily implies the authority to inflict necessary suffering and injury on these lawful objects of attack). The assertion that this latter prohibition imposes an LRM obligation is fundamentally inconsistent with the established meaning and understanding of the principle of “unnecessary suffering”, which has never prohibited or limited a party’s authority to lethally target an opponent prior to the opponent becoming hors de combat. Indeed, the very nature of the lethality inherent in the weapons provided to armed forces and the tactics utilized to employ these weapons systems provides an almost irrefutable rebuttal to the LRM theory.

Of course AP I also includes a proportionality rule in Article 51. However, civilians are the exclusive beneficiaries of this protection – the potential victims of incidental injury from otherwise lawful attacks against combatants and belligerents. This proportionality protection is simply inapplicable to the intended object of attack, i.e. belligerents. This rule is part of a broader mosaic of rules in AP I that function to limit targeting authority, all of which share a common purpose: protection of civilians. The specific absence of a parallel rule of proportionality applicable to combatants and belligerents is clear indication of the shared view of AP I’s drafters and signatories that no such limitation exists. How this fact can be reconciled with the asserted LRM obligation is simply perplexing. Had states intended to protect belligerents with an analogous proportionality or LRM limitation, AP I would be the logical locus of that rule.

It is undisputed that the LOAC reflects a balance between the principles of military necessity and humanity that has evolved over time and is reflected in numerous treaty provisions and state practice.  This law establishes that lethal attack against enemy belligerents is lawful when: 1) the target qualifies as a lawful military objective, 2) the expected incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof will not be excessive in relation to the concrete and direct military advantage expected to be gained, and 3) all feasible precautions are taken to spare the civilian population, civilians, and civilian objects from the effects of attacks.  These rules incorporate the general principles of military necessity and humanity; the law is clear that the principles in no way superimpose an additional lesser-means exhaustion requirement on the positive rules.

Contrary to Professor Goodman’s assertion, it is the capture rather than kill theory that rests on a weak foundation, including the authorities he cites. In fact, the LRM claim is not novel.  The International Committee of the Red Cross introduced the very same assertion in Section IX of its 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Law.  The now infamous inclusion of this assertion was a principal motivation for a majority of the participating experts to withdraw publicly from the project, causing the ICRC to take the unusual step of publishing the Interpretive Guidance without identifying participants and with a caveat that the views expressed were solely those of the ICRC.  Many of those experts, as well as others, have subsequently published severe criticisms of the Interpretive Guidance’s LRM discussion, with only the chapter’s author offering a responsive pleading in defense (and himself admitting that the LRM proposal is not reflective of, nor mandated by, governing law).

Nor is the great weight of evidence contradicting the LRM assertion overcome by reference to Jean Pictet’s single aspirational statement, written in his private capacity in 1985 after retiring as head of the ICRC: “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, if there are two means to achieve the same military advantage we must choose the one which causes the lesser evil.” As a matter of policy, few would disagree with this admonition, which is unsurprising, as there are abundant examples of military commanders imposing policy limitations on the full scope of LOAC authorities. Indeed, Administration officials have in fact consistently articulated a preference for capturing enemy belligerents when feasible.  This preference has been correctly stated, even in the context of targeting enemy belligerents who hold US citizenship, as a matter of policy.  As a matter of formulating international law, however, Mr. Pictet’s statement lacks constitutive, or even significant interpretive value.  States establish international law, not commentators.  They do so by negotiating treaties or by establishing custom evidenced by consistent practice motivated by a sense of legal obligation.  Even a cursory review of these sources of law demonstrates the fallacy of asserting an LRM principle as a matter of law.

Equally unpersuasive is the citation to the Israeli Targeted Killing case. In that case, the Israeli Supreme Court required the Israel Defense Forces to use the least harmful means feasible when targeting civilians who are directly participating in hostilities.  However, because the Court concluded that the individuals subject to the attacks at issue in that case could not qualify as combatants, it never addressed the applicability of this LRM rule to anyone other than civilians directly participating in hostilities. Second, even in that context, it is generally recognized that the ruling is limited to the unique set of facts applicable to a decades-long occupation of Palestinian territories.  In those circumstances, infusion of human rights principles, which would include a LRM rule in certain circumstances, is not overly controversial.  But that analysis is wholly inapposite to situations of armed conflict not involving the additional norms applicable to belligerent occupation. Accordingly, the ruling does not support a broader capture rather than kill obligation.

Anyone who has ever had to carry a loaded weapon into hostilities, contemplate the duty to kill inherent in military service, order the employment of combat power against enemy personnel, or train and advise them on the legal parameters applicable to such actions understands just how operationally impractical a capture rather than kill obligation would be to implement. Clarity in belligerent targeting is simply an essential aspect of the authority provided by the principle of military necessity to take all measures, not otherwise prohibited by international law, to bring about the prompt submission of the enemy (in the collective, as opposed to individual sense). The law provides this clarity through a presumption of hostility triggered by belligerent status, and by placing the burden on the enemy belligerent to rebut that presumption by surrender. The asserted LRM constraint would dilute the permissible scope of this authority and inject potentially deadly hesitation into the targeting process.  Confusing what the law is with what one might believe it should be, however, especially when doing so undermines the clarity and initiative central to the effective execution of combat operations against enemy belligerents, can result in deadly consequences for those called upon to fight and win our wars.