58 Pages Posted: 17 Oct 2018
Date Written: September 26, 2018
This Article confronts one of the most difficult and contested questions in the debate about targeted killing that has raged in academic and policy circles over the last decade. Suppose that, in wartime, the target of a military strike may readily be neutralized through nonlethal means such as capture. Do the attacking forces have an obligation to pursue that nonlethal alternative? The Article defends the duty to employ less restrictive means (“LRM”) in wartime, and it advances several novel arguments in defense of that obligation. In contrast to those who look to external restraints—such as those imposed by international human rights law, U.S. constitutional law, or, indeed, the laws of war themselves—to check the operation of military necessity, I argue that the most plausible LRM obligation exists as a limitation embedded within the necessity principle itself. Indeed, the principle of military necessity supports not one, but two, related LRM restraints. The first restraint—virtually ignored yet highly relevant to contemporary debates—is a right reason requirement: it prohibits the killing of combatants for reasons unrelated to the pursuit of military advantage. Specifically, the necessity principle does not permit a preference for lethal force over capture when that preference is driven by considerations such as retributive justice, a desire to avoid due process obligations relating to capture and trial, raising morale, and diplomatic sensitivities. The second restraint—more familiar to the debate yet still deserving of further exploration—is objective in nature. It demands that lethal force benefit from a cognizable expectation of military advantage. The Article develops and defends these claims, engages both contrary and complementary viewpoints, and anticipates objections.
Keywords: International Humanitarian Law, Targeted Killing, Drones, Duty to Capture, Military Necessity, Geneva Conventions, jus in bello
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