TARGETED WARFARE: INDIVIDUATING ENEMY RESPONSIBILITY

Introduction The morality and legitimacy of the practices of war - or at least, the use of military force - are undergoing a fundamental transformation. This transformation is not yet directly or fully reflected in the formal laws of war, but as these changes embed themselves in the practices of states, especially dominant states, these changes in practice may eventually be embodied in the legal frameworks that regulate the use of force. The fundamental transformation is this: 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 enemy responsibility of specific enemy persons before the use of military force is considered justified, at least as a moral and political matter. This shift applies not to any one particular type of military force, such as lethal force, but to all exertions of military power over enemies, including the ways in which they are captured, detained, incapacitated, or tried. This transformation is reflected to a limited but significant extent in the domestic law, including the constitutional law, of some countries - including in decisions of the United States Supreme Court. 1 It is also present in the interpretations of international law that some courts, ...