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Targeted KillingsLaw and Morality in an Asymmetrical World$
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Claire Finkelstein, Jens David Ohlin, and Andrew Altman

Print publication date: 2012

Print ISBN-13: 9780199646470

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199646470.001.0001

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REBUTTING THE CIVILIAN PRESUMPTION: PLAYING WHACK-A-MOLE WITHOUT A MALLET?

REBUTTING THE CIVILIAN PRESUMPTION: PLAYING WHACK-A-MOLE WITHOUT A MALLET?

Chapter:
(p.31) 1 REBUTTING THE CIVILIAN PRESUMPTION: PLAYING WHACK-A-MOLE WITHOUT A MALLET?
Source:
Targeted Killings
Author(s):

Colonel Mark “Max” Maxwell

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199646470.003.0002

This chapter outlines how the law of war regarding targeted killing can be tailored to combat international terrorism. To accomplish this objective, it grapples with the principal legal question raised by the targeting of terrorists: how can a state determine that an individual is a belligerent, a vice civilian, and therefore a legitimate target under the law of war, just as a combatant is a legitimate target because of his status as a member of an armed force? The chapter first provides the history of targeted killing from a U.S. perspective. It explains how terrorism has traditionally been handled as a domestic law enforcement matter and how this approach limits the U.S. government's ability to combat terrorism. It then explains the U.S. position that certain terrorists hold a different status than the civilian population. This position has been met with resistance from those who posit that terrorists are civilians who are taking a direct part in hostilities against the state and can be targeted only for such time as they do so. A new approach within the law of war to categorize individuals as either civilians, who are not targetable, or as belligerents who are targetable because of their status is outlined, which furthers the cause of states in effectively combating terrorism. The chapter concludes that while status is paramount in targeting decisions, the determination of status should be based on the individual's pattern of conduct and that pattern must be sufficient to rebut the presumption that the individual enjoys the protected status of a civilian.

Keywords:   law of war, targeted killing, international terrorism, US, domestic law enforcement, civilian status, pattern of conduct

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