A newly published paper by Michigan Law Prof. Monica Hakimi proposes a new way for nations to figure out whether they're justified in killing or detaining people they believe are terrorists plotting harm.
The paper, published in June in the Michigan Law Review, examines what Prof. Hakimi considers the flawed methods currently used under international law to make that determination—namely, figuring out whether the situation fits into one of four regulatory domains: law enforcement, emergency, armed conflict for civilians, or armed conflict for combatants.
With the United States relying more heavily than ever on drone attacks targeting specific people who've been identified as terrorists, the paper comes at an opportune time.
"Especially within the past decade, we've been having this debate about how to figure out which set of rules applies," Prof. Hakimi said. "But that argument is distracting, and counterproductive, too … the existing domains encourage one side of the debate to make an extreme claim, just to protect against a too-extreme claim from the other side."
The result, Prof. Hakimi argues, is that the normal progress of international law, which develops over time as different decisionmakers make and respond to one another’s legal claims, is being thwarted.
Better, then, to establish entirely new guidelines that depart from the four traditional domains, Prof. Hakimi argues.
This new, functional approach, Prof. Hakimi said, would use three substantive principles to guide nations in determining whether targeting or preventively detaining a suspected terrorist is justified: "liberty-security," "mitigation," and "mistake."
The first principle, "liberty-security," basically argues that the benefit of targeting someone must outweigh the costs to individual liberty. The second set of principles, "mitigation," argues that the targeting nation has a duty to lessen the cost to individual liberty by using reasonably available alternatives to targeting or detention, if those alternatives are less intrusive. And the third principle, "mistake," demands that nations act with due caution to avoid making mistakes in targeting and detention. Those principles will lead to different outcomes depending on the facts. In some contexts, the required outcomes are already settled, and the law is relatively clear. The principles guide decisionmakers, however, in determining the proper outcomes in contexts for which the law is unsettled.
In addition to the academic paper in the Michigan Law Review, Prof. Hakimi also outlined her thinking in an ABA Journal debate with University of Utah law professor Amos N. Guiora. The arguments over targeting and detention were also the subject of an ABA Journal analysis.
For Prof. Hakimi's part, the new approach would be an important step in the right direction.
"Otherwise, we end up having these arcane and meaningless debates that actually prevent the law from developing," she said.
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