Missing the target: where the Geneva conventions fall short in the context of targeted killing.

• Author: Mallette-Piasecki, Michelle

1. Introduction

   The Geneva Conventions are the core body of international law that regulates armed conflict. (1) Since 1864, when the First Geneva Convention was codified, the Conventions have been updated several times. (2) War is waged much differently today, (3) however, than it was in 1949--the last time the Conventions were updated in their entirety. (4) Even though Additional Protocols I and II were implemented in 1977 specifically to "deal with the changing nature of armed conflict and advances in weapons technology," (5) their adoption was a retroactive response to the increase in internal State conflicts, civil wars, and national liberation movements (CARs), (6) rather than a prospective means of encompassing any future advances in warfare. (7) Over the last decade, the International Committee of the Red Cross (ICRC) has issued several reports to rectify areas of ambiguity in the Conventions and other areas of customary international law in general, (8) but gaps still remain. (9) This note explores those gaps by focusing on the issue of targeted killing and the current problems the international legal community faces in upholding International Humanitarian Law (IHL). Part II examines the emergence of targeted killing as part of the United States and Israeli policies to combat terrorism. Part III discusses the law of armed conflict as it is codified in the Conventions and how classification of an armed conflict affects the legality of targeted killing. Part IV contrasts the United States' position justifying targeted killing as preemptive self-defense with the international legal community's position of strict adherence to Article 51 of the U.N. Charter. Part V explores the recent targeted killings of Osama bin Laden and Anwar Al-Aulaqi, and the disparate treatment afforded to each under international law. The note concludes with a discussion on how the Geneva Conventions can be reformed to eliminate gaps in the future.

2. Emergence of Targeted Killing

   [T]argeted killings are not a new phenomenon. (10)

   For centuries, States have eliminated individual enemies through the employ of targeted killings. (11) But only recently has any State openly acknowledged engaging in this tactic. (12) The United States unofficially adopted targeted killing as a counterterrorism tactic in 2001 in response to the September 11th terrorist attacks on the World Trade Center. (13) In the first five years after 9/11, the United States conducted more than a dozen targeted killings in Afghanistan, Pakistan, Iraq, and Yemen. (14)

   In October 2001, the new version of the 'Predator' drone was employed jointly with jet fighters to kill Mohammed Atef, the suspected military chief of al Qaeda, in Afghanistan. After that, the 'Predator' continued to be used for the targeted killing of individuals suspected of assuming leading functions within al Qaeda, including, most notably, Ali Qaed Senyan al-Harithi (Yemen, 3 November 2002), Haitham al-Yemeni (Pakistan, approximately 10 May 2005), and Hamza Rabia (Pakistan, December 2005). (15)

   While the international community has continuously condemned targeted killing since its emergence in 2000, (16) criticism has not deterred either the United States or Israel from continuing to conduct targeted killing operations. (17) In fact, under the Obama administration, the number of U.S. drone strikes has steadily increased (18)--122 were launched in Pakistan in 2010 alone (19)--and shows no sign of diminishing anytime soon. (20) Several high-ranking U.S. political figures have even called the applicability of the Conventions into question given the changing nature of warfare (21)--an ideology not shared by the international community. (22)

   "The criticism of targeted killing is primarily based on the premise that it constitutes either extra-judicial killing or assassination," (23) both of which are illegal under customary and international humanitarian law. (24) Consequently, there is serious debate that targeted killing could ever be justified outside the framework of an armed conflict. (25) The United States has repeatedly asserted that it is in a non-international armed conflict with al Qaeda to justify its drone program. (26) Israel has taken an even more radical approach to legitimize its actions. In Public Comm. Against Torture in Israel (PCATI) v. Israel, the Israeli Supreme Court held that the conflicts between Israel and Palestinian terrorists constituted an international armed conflict, (27) and that the killings were lawful under the doctrine of anticipatory self-defense. (28) Under IHL, in an international armed conflict, Palestinian terrorists are lawfully subject to attack only so long as they are directly participating in hostilities. (29) According to PCATI, as long as it can be proven that "the target is an active terrorist organization member, direct participation and an immediate threat are presumed." (30) The Israeli interpretation means that terrorists, technically civilians, can be targeted at any time--no matter how far removed from the battlefield or how remote their connection is to an ongoing or imminent attack. (31) Even though the PCATI holding is not binding outside of Israel, (32) State practice is moving towards its acceptance. (33) As a result, many scholars believe that targeted killing is eventually headed towards legitimization as well. (34) But a trend toward legitimacy does not necessarily reflect legality under the law of armed conflict. So when is targeted killing lawful? The answer depends on how the conflict is classified.

3. Classification of the Legal Framework.

   Classification of a conflict is integral in applying IHL. (35) "Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the inter-state use of force." (36) Determining what type of armed conflict--and therefore what level of IHL applies--can be a cumbersome task, however. (37) Because the law of armed conflict is not static, what might commence as an international armed conflict can quickly transform into a non-international armed conflict, or vice versa. (38) Ensuring compliance with IHL thus requires proper classification throughout the duration of the hostilities. (39) But who determines when and what level of armed conflict applies? The ICRC is the main proponent and guardian of IHL and the Geneva Conventions, but lacks authority to enforce any provision of the laws of armed conflict. (40) Rather, responsibility is left to individual States to ensure proper implementation of IHL. (41) While the ICRC encourages uniform standards of classification, in reality application is anything but consistent. (42) As a result, States can simply determine what level of protection they want to afford their enemy, and label the armed conflict to fit that distinction. (43) This is the context in which the controversy over targeted killing emerges. In order to understand the disparity between the United States and the international legal community's positions, it is necessary to first analyze each separate legal framework independently.

   1. International and Non-International Armed Conflict (NIAC).

      Customary international law recognizes two types of armed conflicts--those of an international nature and those of a non-international nature. (44) An international armed conflict occurs under Common Article 2 in "cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." (45) World War II, the Cold War, the Korean War, and the Vietnam War are all examples of an international armed conflict. (46) With the passage of Additional Protocol I in 1977, several other categories of conflict were also recognized as international in scope. (47) "[A]rmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination" are transmuted into international armed conflicts through the application of Additional Protocol I. (48) The Philippine-American War, Israeli occupation of the West Bank, and South Africa's regime of apartheid are all examples of conflicts that would fit within the CARs paradigm. (49)

      Identifying an international armed conflict is relatively straightforward. Since an international armed conflict always involves two or more parties, its occurrence is easily recognizable. (50) '"Any difference arising between two States and leading to the intervention of [sic] armed forces' qualifies as armed conflict, regardless of its intensity, duration or scale." (51) Even an isolated confrontation may be sufficient to qualify as an international armed conflict. (52) "[I]ndividual border incidents, the capture of a single prisoner or the figurative 'one shot' leading to a single wounded" can all produce an international armed conflict. (53) As long as two States are involved, an international armed conflict exists and the full scope of protections under the Geneva Conventions applies. (54) Determining when a non-international armed conflict arises, on the other hand, is much more convoluted.

      Common Article 3 recognizes a distinct category of armed conflict--"armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." (55) The statute itself does not expound upon this simple construct, but the drafting history makes clear that Article 3 was intended to apply to internal armed conflicts--namely, civil wars. (56) The projected applicability of Article 3 was thus limited "to domestic conflicts occurring within the territorial confines of a State'" (57)--whether between two non-State armed groups, or between a State's armed forces and dissident armed forces. (58) However, despite this proposed conceptual restriction, State practice...