A functional approach to targeting and detention.

• Author: Hakimi, Monica

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the method breeds uncertainty and subverts the discursive process by which international law adapts to new circumstances and holds decisionmakers accountable. Theoretically, it presupposes that the domain choice, rather than shared substantive considerations embedded in the domains, drives legal outcomes. This Article argues, to the contrary, that all targeting and detention law is and ought to be rooted in a common set of core principles. Decisionmakers should look to those principles to assess when states may target or detain nonstate actors. Doing so would address the practical problems of the domain method. It would narrow the uncertainty about when targeting and detention are lawful, lead to a more coherent legal discourse, and equip decisionmakers to develop the law and hold one another accountable.

TABLE OF CONTENTS INTRODUCTION I. THE FAILURE OE THE DOMAIN METHOD A. Armed Conflict? B. What Follows? 1. Quasi-Combatant or Civilian? 2. Humanitarian or Human Rights Law? 3. Law Enforcement, Emergency, or Neither? II. PRECURSOR TO FUNCTIONALISM A. The Theoretical Shift B. The Methodological Shift III. TARGETING A. Explaining Targeting Law 1. Liberty-Security 2. Mitigation 3. Mistake B. Developing and Enforcing Targeting Law 1. Targeting Noncombatants 2. Targeting Terrorists IV. SECURITY DETENTION A. Explaining Detention Law 1. Liberty-Security 2. Mitigation 3. Mistake B. Developing and Enforcing Detention Law 1. Detaining Terrorists 2. Detaining During Occupations or Territorial Administrations CONCLUSION INTRODUCTION

The international law governing when states may target to kill (1) or preventively detain (2) nonstate actors is in disarray. Much of the blame lies with the method that international law uses to answer that question. The method establishes distinct standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the standards vary, so too may substantive outcomes. Decisionmakers must select the correct domain before determining whether targeting or detention is lawful.

That method--which I call the "domain method"--creates two serious problems. One is uncertainty. (3) Many modern situations do not fit comfortably in any domain, leading to intractable disputes about which one governs. For example, legal analysts disagreed on whether the U.S. operation targeting Osama bin Laden fell within the combatant or the law enforcement domain. The operation was lawful under one but probably not under the other. (4)

Some uncertainty reflects substantive disagreements and is inevitable, given the decentralized nature of the international legal system. But the domain method inhibits decisionmakers from resolving uncertainties even when they agree on substance. In several contexts, decisionmakers with different policy perspectives have been groping toward similar "hybrids"--outcomes that are more permissive than those associated with one domain but more restrictive than those associated with another. For instance, many decisionmakers seem to appreciate that, when targeting terrorism suspects abroad, states have more authority than in law enforcement settings but less than against combatants. (5) Such hybrids are not grounded in any domain, so they cannot effectively be justified using the domain method. The method discredits them in favor of the available but contested extremes. Separately, the method discourages decisionmakers from agreeing on outcomes in one case because of perceived slippery-slope implications for others. For example, the U.S. government and Human Rights Watch agree that the United States may lawfully target certain al-Qaeda suspects in Yemen. (6) Instead of embracing that agreement and trying to develop shared parameters for counterterrorism operations, each pushes for its preferred domain. Each seeks to avoid the overly expansive or narrow implications of the alternative. (7)

Breeding uncertainty is troubling in its own right, but it also points to a more serious problem: the domain method stifles legal discourse. Decisionmakers now justify their preferred outcomes by invoking legal categories that are often inapposite to the facts. Thus, instead of assessing the bin Laden operation on the merits, analysts debated which domain governed. (8) Those who disagree on the domain talk past one another, applying different standards to assess the same or similar conduct. That enfeebled discourse is problematic because international law--and especially the law on targeting and detention--functions discursively. (9) When the international legal process works well, it provides a common language for decisionmakers to justify positions and respond to counterarguments. Decisionmakers here include a broad range of actors--for example, states, intergovernmental organizations, courts, and treaty bodies--but their authority to prescribe or apply the law, and thus the weight of their pronouncements, varies. (10) Eventually, enough decisionmakers might converge on particular outcomes and resolve substantive uncertainties. Yet even when decisionmakers disagree on substance, the discursive process helps to constrain their discretion. The more persuasively an actor defends its position, the less pressure it confronts to alter its conduct. Conversely, the more compelling the counterarguments, the more an actor must change its behavior or refine its position to avoid condemnation. This discourse is (for better or worse) the principal mechanism for developing and enforcing international law. (11) By undermining it, the domain method frustrates targeting and detention law from adapting to modern challenges and holding decisionmakers accountable.

This Article argues for retiring the domain method and replacing it with a new functional approach. (12) It demonstrates that a set of common principles--which I label liberty--security, mitigation, and mistake--animate all of the law on targeting and detention. Briefly, the liberty--security principle posits that, in order for targeting or detention to be justifiable, the security benefits must outweigh the costs to individual liberty. The mitigation principle requires states to try to lessen those costs by pursuing reasonable, less intrusive alternatives to contain a threat. The mistake principle demands that states exercise due diligence to reduce mistakes. Together, the functional principles establish an overarching framework on targeting and detention--one rooted in existing law but not dependent on the domains.

Decisionmakers should use those principles rather than the domains to specify when states may target or detain nonstate actors. Because the principles already animate the law, using them is unlikely to destabilize settled outcomes. Where outcomes are contested, however, the functional approach corrects the problems of the domain method. First, it empowers decisionmakers to develop the law incrementally. Decisionmakers can prescribe an outcome for one scenario by converging on middle-ground hybrids and without risking the slippery slope. Second, the functional approach helps to hold decisionmakers accountable. Though substantive disputes will often reproduce themselves in terms of liberty-security, mitigation, and mistake, (13) that change in discourse matters. Positions that are substantively indefensible become more difficult to justify and, therefore, less appealing to advance.

The method that I propose breaks with existing legal literature on targeting and detention. Though international lawyers already question certain aspects of the domain method, all proposals for clarification or reform either apply that method or assume its compartmentalized structure. (14) This Article rejects the domain method as practically unworkable and theoretically dubious. Practically, the domain method breeds uncertainty and undermines the discursive legal process. Theoretically, it presupposes that outcomes are determined primarily by the domain choice, rather than by shared substantive considerations embedded in the domains. This Article argues otherwise. It demonstrates that three core principles animate targeting and detention law across contexts but require different outcomes depending on the facts.

The Article proceeds as follows. Part I argues that, in many contexts, the domain method is unworkable at best and corrosive to the legal process at worst. Rather than resolve when states may target or detain people, the domain method undermines resolution. Part Il presents my functional alternative. Parts III and IV demonstrate that, compared to the domain method, the functional approach better explains the existing law on targeting and detention. Further, it better holds decisionmakers accountable and equips them to develop the law.

Two brief clarifications about the scope of my argument are appropriate before I proceed. First, this Article addresses the targeting and detention of nonstate actors. It leaves open the question of whether to replace the domain method for state agents. (15) The domain method serves certain functions when applied to state agents that are not replicated when applied to nonstate actors. (16) Moreover, for state agents, the two methods usually produce the same outcomes...