Readings: Jens Ohlin, 'The Duty to Capture'

By Kenneth Anderson
Tuesday, February 26, 2013, 9:29 AM

Jack Goldsmith has flagged NYU professor Ryan Goodman's European Journal of International Law article, "The Power to Kill or Capture Enemy Combatants," as well as a Slate article by Goodman drawn from that academic journal piece, "The Lesser Evil: What the Obama administration isn't telling you about drones: the standard rule is capture, not kill."  Goodman's two pieces have prompted a sharp response in a guest post here at Lawfare by four leading scholars of law of armed conflict (Geoffrey Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen), with which I agree as to its characterization of black-letter law of armed conflict today.

The conclusion that Corn, et al., reach, however, is roughly the same as that in an important academic article, posted to SSRN last year and forthcoming in the Minnesota Law Review, by Jens Ohlin, professor at Cornell Law School and author of the very interesting, always sophisticated and astute, international criminal law blog Lieber Code.  The article's title, "The Duty to Capture," might mislead readers into thinking that it is reaching essentially the same conclusion as Goodman, but in fact it is nearly exactly the opposite - perhaps the title would benefit from a question mark to make this clear.  (A more extended debate of this topic would be very interesting, at Opinio Juris or elsewhere, perhaps using Goodman's and Ohlin's papers as a starting point.) Here is Ohlin's abstract from SSRN (I've introduced some paragraph breaks for easier reading):

The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and evaluates internal debates within these regimes over when a duty to capture might apply.

At issue in these debates, regardless of the body of law that applies, is the scope and content of the concept of necessity, i.e. when is it truly necessary to target an individual with lethal force. The key question is whether a unified and trans-regime understanding of the concept could promote doctrinal unity across legal regimes. However, this article concludes that the concept of necessity stubbornly defies such attempts; necessity is a term of art with a distinct history and meaning in each body of law, and unification of these meanings can only come at the cost of betraying the fundamental precepts of one legal regime over the other.

Part I begins by examining the scope of international humanitarian law and concludes that the current literature often unduly constrains its application; a new analysis is offered of the classification of armed conflicts, the level of organization required before a non-state actor can be a party to an armed conflict, and the legal geography of armed conflict.

Part II examines the concept of necessity and concludes that military necessity (destruction of “life and limb” related to the war aim) is fundamentally incompatible with human rights law and its understanding of necessity as the least-restrictive means.

Finally, Part III concludes that the IHL regime, and its permissive notion of military necessity, should apply when the state is acting as a belligerent against other co-equal belligerents, but that human rights law, and its more restrictive notion of necessity, should apply when the state acts as a sovereign over its own subjects. However, being a U.S. citizen does not automatically make an individual a "subject" under a sovereign, as opposed to a belligerent. Rather, this article concludes that belligerency is always a relationship between collectives, and that the relevant question is whether the United States stands in a relationship of belligerency to a non-state organization of which the individual is a member.