The Power to Kill or Capture and the DOJ White Paper

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. The White Paper suggests that, according to IHL, enemy fighters can be killed instead of captured anytime, anywhere unless and until they surrender. At one level, this is an understandable mistake and by no means idiosyncratic. Indeed, I researched and wrote my article because so many commentators expressed a similar assumption—a meme began to spread—and I wanted to correct it. That said, there may be a greater responsibility on the part of the DOJ not to simply repeat an idea like this one, but to research and justify it. Indeed, once you start exploring the relevant negotiating history and other important background texts, it becomes apparent that the DOJ’s position is unsustainable as a matter of contemporary law and the history of Geneva.

In The Power to Kill or Capture, I argue that, in certain well-specified and narrow circumstances, the use of force should be governed by a least-restrictive-means analysis. That is, I contend that the modern law of armed conflict supports a maxim that has often been associated with Jean Pictet: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided.

Through original research, the article recovers a history that has been lost in contemporary debates. In particular, I present and analyze voluminous support by international authorities that contradicts the meme. The full record that I foreground sheds significant light on the proper interpretation of key legal instruments such as Additional Protocol I to the Geneva Conventions—especially its definition of “superfluous injury or unnecessary suffering.” And my analysis shows how a parallel set of rules—on the definition of hors de combat—achieves many of the same effects as Pictet’s maxim. Admittedly, there are all manner of caveats and conditions that will qualify the application of the maxim. Nevertheless, the general formula—and its key components—should be understood to have a solid foundation in the structure, rules and practices of modern warfare. In sum, belligerents must comply with an important (albeit conditional) set of IHL constraints in planning and conducting kill or capture operations against enemy fighters. These implications obviously extend well beyond the conditions that allow for lawful targeting by the United States, and include the conduct of parties to armed conflicts in other corners of the globe.