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The Power to Kill or Capture and the DOJ White Paper

Published on February 11, 2013        Author: 

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Ryan Goodman is Anne and Joel Ehrenkranz Professor of Law at New York University School of Law

Thank you to the editors of EJIL: Talk! for inviting me to reflect a bit on the US Department of Justice’s White Paper on Targeted Killings in light of my forthcoming article: The Power to Kill or Capture Enemy Combatants, 24 European Journal of International Law (2013).  The article argues that international humanitarian law (IHL) prohibits killing instead of capturing an enemy fighter in important cases—where many other commentators assume that IHL is highly, if not completely, permissive (see meaty footnote 17, especially if you’re among the latter). My analysis does not require one to take a position on whether the current fight against Al Qaeda constitutes an armed conflict. The analysis is, instead, an exhaustive study of the pertinent jus in bello rules—for whenever an armed conflict triggers their application. Thus with respect to U.S. targeted killings, we can adopt a conditional position: If one accepts (even just for the sake of argument) that the law of armed conflict applies, then one needs to recognize that IHL will sometime impose a duty to capture instead of kill.

The DOJ White Paper is—unsurprisingly–premised on the assumption that the United States is in an armed conflict with Al Qaeda and associated forces, and that IHL applies. Refreshingly for students of international law, the document goes further and accepts that IHL is directly relevant to major questions of domestic law. First, in terms of procedural due process rights, the DOJ states that the constitutionality of the decision to kill a U.S. citizen hinges, in part, on whether “the operation would be conducted in a manner consistent with applicable law of war principles.” Second, it is a federal offense to kill or attempt to kill a US citizen in a foreign country (18 USC 1119(b)). The DOJ explains, however, that the federal law on foreign murder provides a safe harbor—an exception for killings that occur in armed conflict and comply with the laws of war. Finally, the question of Presidential power turns in part on international law. Shortly after September 11th, Congress authorized the President to use force to hunt and kill Al Qaeda members. The DOJ recognizes, however, that authority came with the following proviso: the President’s actions must abide by the laws of war. If they don’t, the President presumably would be acting without affirmative congressional authorization. In short, the White Paper identifies important areas of domestic law that are predicated on compliance with IHL.

The document, however, misunderstands the content of IHL. Read the rest of this entry…

Filed under: EJIL Analysis