The Power to Kill or Capture Enemy Combatants

Abstract

During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants. An important view, expressed by many contemporary experts, maintains that a combatant can be subject to lethal force wherever the person is found — unless and until the individual offers to surrender. I argue that, in certain well-specified and narrow circumstances, the use of force should instead be governed by a least-restrictive-means analysis. That is, I contend that the modern law of armed conflict supports the following maxim: 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. The article shows how this maxim fits into the overall structure of the laws of war. It also shows how a parallel set of rules — on the definition of hors de combat — achieves many of the same effects. And it identifies plausible scenarios in which these rules would apply. Admittedly, there are all manner of caveats and conditions that will qualify the application of this maxim. However, 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 constraints in planning and conducting kill or capture operations against enemy fighters.