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.
II. 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. …