Targeting Co-Belligerents

TARGETED KILLINGS: LAW & MORALITY IN AN ASYMMETRICAL WORLD, Claire Finkelstein, Jens David Ohlin, Andrew Altman, eds., Oxford University Press, Forthcoming

30 Pages Posted: 15 Jul 2011 Last revised: 6 Dec 2011

Jens David Ohlin

Cornell University - School of Law

Date Written: July 15, 2011

Abstract

One of the central controversies of the targeted killing debate is the question of who can be targeted for a summary killing. The following chapter employs a novel normative framework: how to link an individual terrorist with a non-state group that threatens a nation-state. Six linking principles are catalogued and analyzed, including direct participation, co-belligerency, membership, control, complicity and conspiracy. The analysis produces counter-intuitive results, especially for civil libertarians who usually eschew status principles in favor of conduct principles. The concept of membership, a status concept central to international humanitarian law, is ideally suited to situations, like targeted killings, that involve summary killing on the battlefield. This chapter defends one version of the concept, called ‘functional membership’, which takes into account the uniqueness of irregular terrorist organizations. The defense relies on the fact that the alleged dichotomy between status and conduct is partially illusory. Second, functional membership is a hybrid between status and conduct and preserves the best elements of the law of war paradigm with the criminal law enforcement paradigm. Third, functional membership is necessary for applying the pre-existing international humanitarian law standards of ‘directly participating in hostilities’ and engaging in a ‘continuous combat function.’

Keywords: Targeted Killing, International Humanitarian Law, IHL, Membership, Functional Membership, Directly Participating In Hostilities, Continuous Combat Function, Terrorism, War on Terror, Non-International Armed Conflict

Suggested Citation

Ohlin, Jens David, Targeting Co-Belligerents (July 15, 2011). TARGETED KILLINGS: LAW & MORALITY IN AN ASYMMETRICAL WORLD, Claire Finkelstein, Jens David Ohlin, Andrew Altman, eds., Oxford University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1886414

Jens David Ohlin (Contact Author)

Cornell University - School of Law ( email )

218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)

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