Between Crime and War: Hybrid Legal Frameworks for Asymmetric Conflict
The threat posed by the recent rise of transnational non-state armed groups does not fit easily within either of the two basic paradigms for state responses to violence. The crime paradigm focuses on the interception of demonstrable immediate threats to the safety of others. Its aim is to protect specific persons and members of the general public from violence by identifiable individuals, who may be acting alone or in concert. In pursuit of this aim, the state uses police operations and the criminal justice system. Both of these tools are governed by human rights principles that significantly constrain state power. A state may not restrict liberty unless it has demonstrable evidence that an individual may pose a danger to others. It may not use force if other means will be effective to stop a threat. If using force is unavoidable, it must be the minimum amount necessary. Furthermore, a state generally may not take life unless no other measure will intercept an immediate threat to life
Finkelstein, Claire Oakes and Fuller, Christopher, "Between Crime and War: Hybrid Legal Frameworks for Asymmetric Conflict" (2022). All Faculty Scholarship. 3030.