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Wound, Capture, Or Kill: a Reply to Ryan Goodman's 'The Power to Kill

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Wound, Capture, Or Kill: a Reply to Ryan Goodman's 'The Power to Kill The European Journal of International Law Vol. 24 no. 3 © The Author, 2013. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please email: [email protected] Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Downloaded from Combatants’ Michael N. Schmitt* http://ejil.oxfordjournals.org/ Abstract This article examines two issues raised by Professor Goodman’s article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to at New York University School of Law on September 29, 2013 minimize harm to enemy fighters; and (2) a purported IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which it is possible to wound rather than kill enemy fighters are rare on the battlefield. However, even when such circumstances do present themselves, there is no obligation under the extant IHL to do so. Similarly, there is no duty to capture rather than kill under the existing law. Nevertheless, the article offers an analysis that would extend hors de combat status to enemy fighters who have been effectively captured, thereby shielding them from attack. Accordingly, the approach would often arrive at the same conclusion as that proposed by Professor Goodman, albeit through a different legal lens. The article concludes by noting that although there is no ‘capture-kill’ rule in IHL, for operational and policy reasons, capture is usually preferred. The posting of a draft version of Professor Ryan Goodman’s article appearing in this journal sparked a lively exchange in the academy.1 While I share some of the concerns that his critics have expressed, I equally find Professor Goodman’s analysis thoughtful, thorough, and valuable. Indeed, he raises points that merit careful consideration in light of contemporary conflicts and the evolving values of the international community. * Stockton Professor and Chairman, International Law Department, United States Naval War College; Professor of Public International Law, University of Exeter. The views of the author are offered in his personal capacity and do not necessarily reflect those of the US government. Email: [email protected]. 1 Goodman, ‘The Power to Kill or Capture Enemy Combatants’, this vol. at 819. See especially the exchange between Prof. Goodman and Profs. Corn, Blank, Jensen, and Jenks on Lawfare, available at: www.law- fareblog.com. The latter four have comprehensively set forth their views in ‘Belligerent Targeting and the Invalidity of a Least Harmful Means Rule’, 89 Int’l L Studies (2013) 536. See also Ohlin, ‘The Duty to Capture’, 97 Minnesota L Rev (2013) 1268. EJIL (2013), Vol. 24 No. 3, 855–861 doi:10.1093/ejil/cht049 856 EJIL 24 (2013), 855–861 Two central questions that are often conflated lie at the heart of the matter: (1) is there is any obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) is there is an IHL obligation to capture rather than kill enemy fighters in certain circumstances?2 These two issues surface in very different contexts on the battlefield.3 The first is typically framed in terms of wounding rather than killing during battle (the ‘Pictet’ theory), whereas the latter involves situations in which friendly forces can feasibly capture an enemy fighter in lieu of attacking him. 1. Wounding in Lieu of Killing? Professor Goodman looks in part to Article 35(2) of the 1977 Additional Protocol I (AP I), which prohibits ‘methods or means of warfare of a nature to cause super- fluous injury or unnecessary suffering’ as one basis for a purported duty sometimes to wound rather than kill (his ‘least restrictive means analysis’). The prohibition of such ‘means of warfare’ (a reference to weapons) is a longstanding element of treaty and customary law.4 However, with respect to any obligation to minimize harm while using lawful weaponry, it is AP I’s prohibition on ‘methods of warfare’ that is at issue. The reference to methods first appeared in that instrument.5 Methods of warfare, as noted in the ICRC’s Guidance on Weapons Reviews, generally refers to ‘the way in which [weapons] are used’.6 The recently released Tallinn Manual similarly explains that the term ‘refers to how … operations are mounted, as distinct from the instruments used to conduct them’.7 Typical examples include beyond visual range engagements, high altitude bombing, and indiscriminate attacks. Even when a weapon per se is not employed, the concept is often framed in terms of weapons usage. Thus, for example, the ICRC commentary to Article 54 styles starvation as a method in which depriving the civilian population of food and other essentials is used ‘as a weapon to annihilate the population’.8 In lay terms, methods of warfare are particular ‘tactics’ used to employ weapons. There is no indication that the states present at the Diplomatic Conference con- curred in treating Article 35(2) as applying to any act involving the ‘conduct of hos- tilities’. On the contrary, a rule of this nature would be problematic in the heat and confusion of the battlefield. Professor Goodman readily acknowledges the practical 2 I use the term ‘fighters’ in order to encompass both combatants and civilians that directly participate in the hostilities. 3 My analysis is without prejudice to any international human rights restrictions that might apply, particu- larly outside the context of an international armed conflict. 4 1868 St. Petersburg Declaration, 1 AJIL (Supp., 1907) 95; 1899 Hague Declaration concerning Asphyxiating Gases, 1 AJIL (Supp., 1907) 157; 1899 Hague Declaration concerning Expanding Bullets, 1 AJIL (Supp., 1907) 155; 1899 & 1907 Hague Regs, 32 Stat. 1803 and 36 Stat. 2277, Art. 23(e). 5 I take the position that all of the AP I provisions cited by Prof. Goodman reflect customary law and there- fore are binding on non-party states, including the US. 6 ICRC, ‘A Guide to the Legal Review of New Weapons, Means and Methods of Warfare’, 88 Int’l Rev Red Cross (2006) 931, at 937 (emphasis added). 7 M.N. Schmitt (gen. ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) 142. 8 ICRC, Commentary on the Additional Protocols (1987), at para. 2090. Wound, Capture, or Kill: A Reply to Ryan Goodman 857 problems associated with a ‘wound-kill’ rule and proposes a number of carefully crafted limitations on its implementation and interpretation that could mitigate those obstacles. However, the very fact that he has done so adds weight to the argument that no such rule has yet crystallized. Moreover, situations presenting a viable possibility of wounding instead of killing are so rare that it is counter-intuitive to conclude that states intended the ‘method’ language to extend to such circumstances.9 Today most states, non-state organiza- tions dealing with IHL, and scholars do not interpret the provision in this manner. For them, neither killing nor capture constitutes a specific method of warfare, although certain tactics designed to kill or capture do. Professor Goodman offers a second (albeit associated), and stronger, basis for a wound-kill rule, one focusing on the IHL principles of humanity and military neces- sity. The ICRC took a similar stance in its Interpretive Guidance on Direct Participation in Hostilities.10 In the absence of an express norm, the Guidance suggests that consid- erations of military necessity and humanity should guide the determination of how to conduct an engagement. Such determinations would necessarily be highly con- textual. For instance, the Guidance notes that ‘[i]n classic large-scale confrontations between well-equipped and organized armed forces or groups, the principles of mili- tary necessity and of humanity are unlikely to restrict the use of force against legiti- mate military targets beyond what is already required by specific provisions of IHL’. It also emphasizes that ‘[t]he aim cannot be to replace the judgment of the military com- mander by inflexible or unrealistic standards; rather it is to avoid error, arbitrariness, and abuse …’.11 Perhaps most significantly, the ICRC cautions that it is merely proffer- ing an interpretation of ‘one of the most unresolved issues of international humanitar- ian law’.12 Military necessity and humanity constitute IHL’s foundational principles; every IHL rule represents an attempt by states to craft a fair balance between the need to be effective in battle and the desire to humanize it. The military necessity–humanity bal- ance also infuses the progressive development of IHL, and informs its interpretation and application. But it is not in itself a separate prescriptive norm with independent valence.13 There is no denying that the ‘wound-kill’ rule advocated by Professor Goodman is viscerally appealing. Why, after all, would the law allow killing an enemy fighter who could be rendered hors de combat through wounding? But practical challenges aside, it would be wrong to assume that IHL – the product of either negotiation between states or pervasive state practice influenced by national interests – is seamless, logical in every circumstance, or necessarily reflective of the optimal contemporary balance 9 Note that possibilities do exist, as in employing non-lethal weapons. However, such options are seldom viable when involved in classic combat or when enemy forces are themselves employing lethal force. 10 ICRC (Nils Melzer), Interpretive Guidance on the Notion of Direct Participation in Hostilities (2009), at ch. IX. 11 Ibid., at 80. 12 Ibid., at 6 (emphasis added). 13 For my views on the subject see Schmitt, ‘Military Necessity and Humanitarian Law’, 50 Virginia J Int’l L (2010) 795. 858 EJIL 24 (2013), 855–861 between the principles of military necessity and humanity.
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