New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

New York University Law Review, Vol. 88, 2013

Abstract

Legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. Whereas the traditional practices and laws of war defined “the enemy” in terms of categorical, group-based judgments that turned on status – a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army – we are now moving to a world that, implicitly or explicitly, requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is justified. Increasingly, the legitimate use of military force is tied to adjudicative-like judgments about the individual acts and roles of specific “enemy” figures; that is the case whether the force involved is military detention or lethal killing. This transformation transcends the conventional debates about whether terrorism should be treated more like war or crime and is more profound in its implications.

This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, adjudicative-like processes to ensure accurate, credible judgments about the individual responsibility of particular “enemy” fighters. For the executive, these changes will propel greater engagement in decisions that had previously been more exclusively within the province of the military itself. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past, as has begin to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually come to be embodied in the legal frameworks that regulate the use of force. This Article, after identifying this fundamental transformation as the central factor driving struggles over the proper boundaries of military force, then explores the ramifications of this change for issues like military detention and targeted killings.

Date of Authorship for this Version

4-2013

Keywords

National Security Law, Constitutional Law, Military Law, Terrorism, Public International Law, Laws of War, Detention, Targeted Killing

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