Limiting Targeted Killings: A Competition of Paradigms

Abstract

The US claims that its use of targeted killing of insurgents and terrorists is lawful under the laws of armed conflict. This program has met with significant criticism. However, despite cries of “assassination” and “extra-judicial killing,” this campaign is not so much a break with past policy as it is a change in the methods employed. Indeed, other than its means and possibly its efficacy, the new US policy is not even especially novel. Critics in the international law community base their arguments upon several competing paradigms, including expansive notions of human rights law. One paradigm limits geographic scope of armed conflict, employing law enforcement standards outside of that zone. Another imports procedural protections from the law enforcement paradigm, based upon the international “right to life.” But these emerging paradigms create unclear standards or impose restrictions so great that they will be counterproductive. Better are two functionalist paradigms based on international humanitarian law and its concept of direct participation in hostilities. The functionalist approach lends greater the clarity and flexibility, and will be less likely to lead to rejection or cheating.