Minnesota Law Review, Vol. 97, no. 4, 2013, p. 1268-1342
The article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and evaluates internal debates within these regimes over when a duty to capture might apply. Part I begins by examining the scope of international humanitarian law (IHL); concludes that its application is often unduly constrained; and offers a new analysis of the classification of armed conflicts, the level of organization required before a non-state actor can be a party to an armed conflict, and the legal geography of armed conflict. Part II examines the concept of necessity and concludes that military necessity is fundamentally incompatible with human-rights law and its understanding of necessity as the least-restrictive means. Finally, Part III concludes that the IHL regime, and its permissive notion of military necessity, should apply when the state is acting as a belligerent against other co-equal belligerents, but that human-rights law, and its more restrictive notion of necessity, should apply when the state acts as a sovereign over its own subjects. However, being a U.S. citizen does not automatically make an individual a "subject" under a sovereign, as opposed to a belligerent. Rather, this article concludes that belligerency is always a relationship between collectives, and that the relevant question is whether the United States stands in a relationship of belligerency to a non-state organization of which the individual is a member.
By entering this website, you consent to the use of technologies, such as cookies and analytics, to customise content, advertising and provide social media features. This will be used to analyse traffic to the website, allowing us to understand visitor preferences and improving our services. Learn more