Targeted Killings from Many Perspectives
Sofaer, Abraham D., Texas Law Review
Targeted Killings from Many Perspectives TARGETED KILLINGS: LAW AND MORALITY IN AN ASYMMETRICAL WORLD. Edited by Claire Finkelstein, Jens David Ohlin & Andrew Altman. Oxford, United Kingdom: Oxford University Press, 2012. 496 pages. $190.00.
This collection of eighteen essays presents views on "targeted killing" from several scholars of law, philosophy, and ethics, along with those of some military lawyer/practitioners. Apart from minor editing deficiencies, it is a beautiful book: large, with print size that is easy on the eyes, and with sufficient space between lines of text to make the complex material at least visually digestible. It has useful tables of cases, instruments, legislation, and abbreviations, as well as an index. The essays are divided into an introduction (by Andrew Altman, Professor of Philosophy at Georgia State University) and five substantive categories to help the reader see the subject from specific perspectives, with inevitable overlap.
The premise of the book is that the attacks of al Qaeda on September 11, 2001 changed the view of the United States and other states on how to protect their civilians from attacks by persons who are not members of a regular military force.1 Targeted killing has long been used in conventional warfare and in the course of self-defense.2 In either context, killing members of an enemy's armed forces is permitted since every member of a conventional force engaged in armed conflict or in self-defense has the right to target and kill the other state's military forces for the purpose of defeating those forces or mounting an effective defense.3
Targeted killing (or other forms of attack) are not allowed under the law of war, however, against noncombatants,4 and according to the International Committee of the Red Cross (ICRC), anyone who is not a combatant (generally anyone not in a uniform, wearing insignia, or armed) is presumed to be a civilian and not subject to attack.5 This presumption is rebutted only during the time an individual is involved in "direct" hostilities, in which case such individuals may be attacked as an unprotected "belligerent."6
After the 9/11 attacks, the ICRC issued guidance in 2003, adopted in 2009, establishing for purposes of both international and noninternational armed conflicts the category of "organized armed group." 7 While this guidance creates a category of persons separate from civilians, seemingly analogous to a military force, individuals become members of such "armed groups" only if their "continuous function [is] to take a direct part in hostilities."8 The first essays focus on who should be considered "noncombatants" in armed conflicts.
I. Targeting "Noncombatants"
Colonel Mark "Max" Maxwell argues in an essay entitled "Rebutting the Civilian Presumption: Playing Whack-a-Mole Without a Mallet?"9 that the ICRC's recognition of a limited right to respond to attacks by "armed groups" of nonstate actors fails to give sufficient significance to a person's membership in a combat-related function in an organized armed group.10 He would define noncombatant to exclude members of organized armed groups who perform combat-related functions. 11 These "unlawful combatants" would be subject to attack on the basis of their status just as if they were soldiers, subject to applicable proportionality requirements.12
Professor Jens David Ohlin reaches essentially the same conclusion in his essay "Targeting Co-Belligerents"13 through a process he characterizes as "linkage."14 He insists that the only terrorists that pose a real danger and that the United States should be authorized to attack are those associated with (i.e., linked to) an armed group.15 He believes the ICRC's guidance on when members of an "armed group" may be targeted should be understood (or construed) to permit attacks on any individual who deliberately joins a group dedicated to jihad and who in addition carries out orders from the command structure of the group, including engaging in military operations, though not necessarily at any discrete moment in time or on a continuous basis. …