Journal Article

Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’

Michael N. Schmitt

in European Journal of International Law

Published on behalf of The EJIL

Volume 24, issue 3, pages 855-861
Published in print August 2013 | ISSN: 0938-5428
Published online September 2013 | e-ISSN: 1464-3596 | DOI: https://dx.doi.org/10.1093/ejil/cht049
Wound, Capture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’

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This article examines two issues raised by Professor Goodman’s article published in this volume of EJIL: (1) a purported obligation under international humanitarian law (IHL) to minimize harm to enemy fighters; and (2) a purported IHL duty to capture rather than kill when doing so is feasible in the circumstances. It notes that situations in which it is possible to wound rather than kill enemy fighters are rare on the battlefield. However, even when such circumstances do present themselves, there is no obligation under the extant IHL to do so. Similarly, there is no duty to capture rather than kill under the existing law. Nevertheless, the article offers an analysis that would extend hors de combat status to enemy fighters who have been effectively captured, thereby shielding them from attack. Accordingly, the approach would often arrive at the same conclusion as that proposed by Professor Goodman, albeit through a different legal lens. The article concludes by noting that although there is no ‘capture-kill’ rule in IHL, for operational and policy reasons, capture is usually preferred.

Journal Article.  3357 words. 

Subjects: Public International Law

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