¹ Public Committee against Torture in Israel et al. v. Government of Israel et al., Case no. HCJ 769/02, 13 December 2006 [PCATI case].

² I recognize that its use in the context of the Israeli-Palestinian conflict is particularly charged. However, without intending to characterize all Palestinian resistance as “terrorism,” my hesitation to apply the term does not extend to those militant groups that choose to direct violence at the civilian population and to the extent that certain Palestinian groups pursue this “tactic” and present many of the difficulties focused on by this article, the term seems appropriate.

³ Bhoumik, Arunabha, “Democratic Responses to Terrorism: A Comparative Study of the United States, Israel, and India” (2005) 33 Denv. J. Int’l L. & Pol’y 285 at 285.Google Scholar

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⁵ Bhoumik, supra note 3 at 286.

⁶ Ibid.

⁷ Glazier, David, “Playing by the Rules: Combating Al Qaeda within the Law of War” (2009) 51 William and Mary L. Rev. 957 at 966.Google Scholar

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¹¹ Ibid. at 392.

¹² Bhoumik, supra note 3 at 287. The difficulty in defining what constitutes “terrorism” is evident in the fact that although various international conventions prohibit certain “terrorist” activities, they have yet to come up with a generally accepted definition of the term itself (see, for example, 1997 International Convention for the Suppression of Terrorist Bombings, 2149 U.N.T.S. 284, 37 I.L.M. 249 (1998); 1999 International Convention for the Suppression of the Financing of Terrorism, UN Doc. A/RES/54/109, 39 I.L.M. 270 (2000); 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, UN Doc. A/RES/59/290 (2005)).

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¹⁵ Schondorf, supra note 9 at 2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 6 UST 3316, 75 U.N.T.S. 135 [Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

¹⁶ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 U.N.T.S. 609 [Additional Protocol II].

¹⁷ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 July, 1977, 1125 U.N.T.S. 3, Article 1(4) [Additional Protocol I].

¹⁸ Fleck, Dieter, ed., The Handbook of International Humanitarian Law, 2nd edition (Oxford: Oxford University Press, 2008) at 27–28.Google Scholar

¹⁹ Ibid. at 29–30.

²⁰ Ibid.

²¹ Ben-Naftali, Orna and Michaeli, Karen, “‘We Must Not Make a Scarecrow of the Law’: A Legal Analysis of the Israeli Policy of Targeted Killings” (2003) 36 Cornell Int’l L.J. 233 at 256.Google Scholar

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²³ Maggs, Gregory E., “Assessing the Legality of Counterterrorism Measures without Characterizing Them as Law Enforcement of Military Action” (2007) 80 Temp. L. Rev. 661 at 696.Google Scholar

²⁴ Ibid. at 696–97.

²⁵ Ibid.

²⁶ Ibid.

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²⁸ Omnibus Diplomatic Security and Anti-Terrorism Act of 1986, Pub. L. No. 99–399, 3071 (a)-(c), 100 Stat. 853; see also Bhoumik, supra note 3 at 312.

²⁹ Prevention of Terrorism Ordinance, 1 L.S.I. 76, (1948); see also Bhoumik supra note 3 at 324.

³⁰ Glazier, supra note 7 at 967.

³¹ Bhoumik, supra note 3 at 299.

³² Ibid. at 299.

³³ Ibid. at 298–99.

³⁴ Glazier, supra note 7 at 970.

³⁵ Bhoumik, supra note 3 at 291.

³⁶ Ibid.

³⁷ Glazier, supra note 7 at 982.

³⁸ Bhoumik, supra note 3 at 294.

³⁹ Ibid.

⁴⁰ Ibid. The effect on civil rights is not limited to Western democracies. Russia, for example, has been engaged in rolling back the recently renewed right to jury trials for suspected terrorists (see Glazier, supra note 7 at 982–83).

⁴¹ Ibid. at 296.

⁴² Glazier, supra note 7 at 982–83.

⁴³ Bhoumik, supra note 3 at 293.

⁴⁴ Ibid. at 300.

⁴⁵ Glazier, supra note 7 at 970.

⁴⁶ Bhoumik, supra note 3 at 300.

⁴⁷ Ibid.

⁴⁸ Glazier, supra note 7 at 966.

⁴⁹ Proulx, Vincent-Joel, “If the Hat Fits, Wear It, If the Turban Fits, Run for your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists” (2005) 56 Hastings L.J. 801 at 810.Google Scholar

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⁵¹ Maggs, supra note 23 at 662.

⁵² Bhoumik, supra note 3 at 295.

⁵³ Schmitt, supra note 27 at 745.

⁵⁴ Schondorf, supra note 9 at 19.

⁵⁵ Maggs, supra note 23 at 697.

⁵⁶ Schmitt, supra note 27 at 23.

⁵⁷ Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Case no. IT-94-1, P 70 (2 October 1995), reprinted in 35 I.L.M. 32 (1996) [Tadic].

⁵⁸ Schondorf, supra note 9 at 11.

⁵⁹ Milanovic, supra note 14 at 382.

⁶⁰ Ibid. at 392. See also Geneva Conventions, supra note 15, Common Article 2, which states that the conventions shall apply to armed conflict “between two or more of the High Contracting Parties.”

⁶¹ Ibid. Hamdan v. Rumsfeld, 548 U.S. 557 (2006), 126 S. Ct. 2749 (Supreme Court of the United States).

⁶² Fleck, supra note 18 at 48.

⁶³ Milanovic, supra note 14 at 392.

⁶⁴ Additional Protocol II, supra note 16, Article 1.

⁶⁵ Fleck, supra note 18 at 56. By way of illustration, Additional Protocol II has a mere fifteen substantive articles, while Additional Protocol I contains over eighty.

⁶⁶ Henckaerts, Jean-Marie, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict” (2005) 87(857) Int’l Rev. of the Red Cross 175.Google Scholar

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⁶⁸ Ibid. at 54. Geneva Conventions supra note 15, Common Article 3 reads: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” [emphasis added].

⁶⁹ Glazier, supra note 7 at 993.

⁷⁰ It is worth noting that Common Article 3 does not explicitly stipulate that noninternational armed conflicts are only those that occur within the territory of a state, and it has been suggested that they should in fact encompass all armed conflicts that do not qualify as international (see, for example, Ben-Naftali and Michaeli, supra note 21 at 256). However, as is clear from the drafting history of Common Article 3, its purpose was to extend the protection of international humanitarian law to internal conflicts specifically (see Moir, Lindsay, The Law of Internal Armed Conflict (Cambridge: Cambridge University Press, 2002) at 23–29)CrossRefGoogle Scholar. Moreover, the general perception of its reach has recognized its limitation to armed conflicts that are internal in scope (Milanovic, supra note 14 at 379).

⁷¹ PCATI case, supra note 1 at para. 21.

⁷² Milanovic, supra note 14 at 384.

⁷³ Ibid. at 383.

⁷⁴ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] I.C.J. Rep. 136 at paras. 90–101.

⁷⁵ Milanovic, supra note 14 at 383.

⁷⁶ Mari, Mustafa, “The Israeli Disengagement from the Gaza Strip: An End of the Occupation?” (2005) 8 Y.B. Int’l Humanitarian L. 356CrossRefGoogle Scholar; Shany, Yuval, “Faraway, So Close: The Legal Status of Gaza after Israel’s Disengagement” (2005) 8 Y.B. Int’l Humanitarian L. 369CrossRefGoogle Scholar. Moreover, the fact that the occupation has lasted so long (over forty years) raises questions as to whether this is the type of belligerent occupation contemplated by Geneva Convention IV (Milanovic, supra note 14 at 383).

⁷⁷ Schondorf, Roy S., “The Targeted Killings Judgment: A Preliminary Assessment” (2007) 5 J. Int’l Crim. Just. 301 at 306.Google Scholar

⁷⁸ Henckaerts, supra note 66 at 189.

⁷⁹ See, for example, ibid at 190, where it is noted that state practice has offered little in the way of help in resolving the difficultis that arise in the characterization of combatants and civilians, a deficiency that is of particular importance for the focus of this article.

⁸⁰ Schondorf, supra note 9 at 54.

⁸¹ Gross, supra note 10; Guiora, Amos, “Terrorism on Trial”: Targeted Killing as Active Self-Defense” (2005) 37 Case W. Res. J. Int’l L. 319Google Scholar; Printer, Nathan G. Jr., “The Use of Force against Non-State Actors under International Law: An Analysis of the U.S. Predator Strike in Yemen” (2003) 8 UCLA J. Int’l L. & Aff. 331Google Scholar; Maggs, supra note 23; Rosen, Richard D., “Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity” (2009) 42 Vand. J. Transnat’l L. 683Google Scholar; Schondorf, supra note 9; Statman, supra note 14.

⁸² Schondorf, supra note 9 at 54.

⁸³ Ibid. at 54 and 57.

⁸⁴ Bhoumik, supra note 3 at 320.

⁸⁵ Ben-Naftali, Orna, “A Judgment in the Shadow of International Criminal Law” (2007) 5 J. Int’l Crim. Just. 322 at 324.Google Scholar

⁸⁶ Ibid.

⁸⁷ B’Tselem, Statistics: Fatalities, <http://www.btselem.org/english/statistics/casualties.asp>.

⁸⁸ “Yemen/US: Take Steps to Avoid Airstrike Tragedy: Civilian Deaths in US-Assisted Raid Underscore Risks of Military Force in Counterterror Measures,” Human Rights Watch (8 March 2010), <http://www.hrw.org/en/news/2010/03/08/yemenus-take-steps-avoid-airstrike-tragedies>.

⁸⁹ Eichensher, Kristen, “On Target? The Israeli Supreme Court and the Expansion of Targeted Killings” (2007) 116 Yale L.J. 1873 at 1873.CrossRefGoogle Scholar

⁹⁰ Ulrich, Jonathan, “The Gloves Were Never On: Defining the President’s Authority to Order Targeted Killing in the War against Terrorism” (2005) 45 Va. J. Int’l L. 1029 at 1030.Google Scholar

⁹¹ Ibid. at 1038.

⁹² Ibid. at 1039.

⁹³ Ibid. at 1040.

⁹⁴ Ibid. at 1041.

⁹⁵ Mayer, Jane, “The Predator War: What Are the Risks of the C.I.A.’s Covert Drone Program?” New Yorker (26 October 2009), <http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer#ixzzoeDwTOWu4>.Google Scholar

⁹⁶ There is some suggestion that the two versions are more inter-related than the US government would have us believe (for example, it is possible that even with respect to the military program, the decisions to fire are being made at the CIA headquarters in Langley) (see O’Connell, Mary Ellen, “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009,” in Bronitt, Simon, ed., Shooting to Kill: The Law Governing Lethal Force in Context [forthcoming] at 6–7)Google Scholar. The extent to which they are in fact interrelated is currently unclear, however, and I will therefore focus on the CIA program, which, regardless of the interrelation, is the more problematic of the two.

⁹⁷ Murphy, Richard and John Radsan, Afsheen, “Due Process and Targeted Killing of Terrorists” (2009) 32 Cardozo L. Rev. 405 at 412.Google Scholar

⁹⁸ Ibid. at 413.

⁹⁹ Ibid.

¹⁰⁰ Mayer, supra note 95.

¹⁰¹ Murphy and Radsan, supra note 97 at 414.

¹⁰² Ibid. at 407.

¹⁰³ Mayer, supra note 95.

¹⁰⁴ Ibid.

¹⁰⁵ Schmitt, Michael N., “Precision Attack and International Humanitarian Law” (2005) 87(859) Int’l Rev. of the Red Cross 445 at 453.Google Scholar

¹⁰⁶ Ibid. at 446.

¹⁰⁷ Ibid.

¹⁰⁸ Ibid. at 453.

¹⁰⁹ O’Connell, supra note 96 at 3.

¹¹⁰ Ibid.

¹¹¹ Ibid.

¹¹² Ibid.

¹¹³ Ibid. The United States also has fifteen Reaper drones, which are similar to Predator drones, but are newer and more heavily armed.

¹¹⁴ Garlasco, Marc et al., “Precisely Wrong: Gaza Civilians Killed by Israeli Drone-Launched Missiles,” Human Rights Watch (30 June 2009), <http://www.hrw.org/en/reports/2009/06/30/precisely-wrong> at 4.Google Scholar

¹¹⁵ Ibid.

¹¹⁶ Ibid.

¹¹⁷ Ibid.

¹¹⁸ Ibid.

¹¹⁹ Ibid.

¹²⁰ Guiora, supra note 81 at 329.

¹²¹ International Covenant on Civil and Political Rights, 16 December 1966, S. Treaty Doc. no. 95–20 (1978), 999 U.N.T.S. 171, Article 6(1).

¹²² Fisher, Jason W., “Targeted Killing, Norms, and International Law” (2007) 45 Colum. J. Transnat’l L. 711 at 719.Google Scholar

¹²³ Where international humanitarian law applies, it operates as the lex specialis but, as such, does not preclude the applicability of international human rights law. The impact of the inter-relationship between these two bodies of law in this context will be further developed in the fifth part of this article, but for now it is worth emphasizing that, even where the armed conflict threshold is met, international human rights law may nonetheless remain relevant and shape the lawfulness of targeted killing.

¹²⁴ Canestaro, Nathan, “American Law and Policy on Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo” (2003) 26 B.C. Int’l & Comp. L. Rev. 1 at 11.Google Scholar

¹²⁵ Ibid. at 4.

¹²⁶ Convention IV Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, paras. 22, 23(b), <http://www.icrc.org/IHL.nsf/52d68d14de6160e0c12563daoo5fdb1b/1d1726425f6955aec125641eoo38bfd6?OpenDocument>.

¹²⁷ Additional Protocol I, supra note 17, Article 37(1).

¹²⁸ Ibid.

¹²⁹ Ulrich, supra note 90 at 1051–52.

¹³⁰ Melzer, Nils, Targeted Killing in International Law (Oxford: Oxford University Press, 2008) at 3–4CrossRefGoogle Scholar. This definition could conceivably encompass killings that would fall within the parameters of extra-judicial killings and assassinations. It is necessary therefore to emphasize that such killings would be excluded from its reach for the purposes of this article.

¹³¹ Keller, Helen and Forowicz, Magdelena, “A Tightrope Walk between Legality and Legitimacy: An Analysis of the Israeli Supreme Court’s Judgment on Targeted Killing” (2008) 21 Leiden J. Int’l L. 189.Google Scholar

¹³² Printer, Jr., supra note 81 at 377.

¹³³ Additional Protocol I, supra note 17, Article 51(2).

¹³⁴ Ibid. Article 51 (3).

¹³⁵ Gross, supra note 10 at 417; Glazier, supra note 7 at 997; Murphy and Radsan, supra note 97 at 419.

¹³⁶ Fleck, supra note 18 at 79.

¹³⁷ Ben-Naftali, supra note 21 at 265.

¹³⁸ Fleck, supra note 18 at 81.

¹³⁹ Glazier, supra note 7 at 1001.

¹⁴⁰ Ibid. at 1001–2.

¹⁴¹ Ibid. at 1002.

¹⁴² Geneva Convention I, supra note 15, Article 13(2); Geneva Convention II, supra note 15, Article 13(2); Geneva Convention III, supra note 15, Article 4(2).

¹⁴³ PCATI case, supra note 1 at para. 24.

¹⁴⁴ Fleck, supra note 18 at 83.

¹⁴⁵ Melzer, Nils, The ICRC’s Clarification Process on the Notion of Direct Participation in Hostilities under International Humanitarian Law, <http://www.themissing.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-article-020709> at 2.+at+2.>Google Scholar

¹⁴⁶ Ibid. at 4; see also PCATI case, supra note 1 at para. 24.

¹⁴⁷ Glazier, supra note 7 at 1004.

¹⁴⁸ Ibid. at 1004.

¹⁴⁹ Schondorf, supra note 77 at 306.

¹⁵⁰ Stephens, supra note 14 at 36.

¹⁵¹ Tadic, supra note 57 at 616.

¹⁵² Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 U.N.T.S. 3 (entered force 1 July 2002), Article 8 on war crimes.

¹⁵³ “Yemen/US,” supra note 88.

¹⁵⁴ Fisher, supra note 122 at 735.

¹⁵⁵ Ibid.

¹⁵⁶ Ibid. at 736.

¹⁵⁷ Ibid. at 734.

¹⁵⁸ Ibid.

¹⁵⁹ Mayer, supra note 95.

¹⁶⁰ Ibid.

¹⁶¹ Fisher, supra note 122 at 734.

¹⁶² Ibid. at 735.

¹⁶³ Statman, supra note 14 at 191.

¹⁶⁴ Ibid.

¹⁶⁵ Mayer, supra note 95.

¹⁶⁶ Parks, Hays, “The Protection of Civilians from Air Warfare” (1998) 27 Israel Y.B. Human Rights 71.Google Scholar

¹⁶⁷ Beaulac, Stephane, “An Inquiry into the International Rule of Law” European University Institute Max Weber Programme 2007/14 at 9.Google Scholar

¹⁶⁸ Ibid. at 10.

¹⁶⁹ Stephan, Paul B., “Unilateral Recourse to Military Force against Terrorist Attacks” (2009) 10 Chi. J. Int’l L. 91 at 93.Google Scholar

¹⁷⁰ Henckaerts, supra note 66 at 178.

¹⁷¹ Ibid. at 179.

¹⁷² Ibid. at 180.

¹⁷³ Beaulac, supra note 167 at 17–18.

¹⁷⁴ These include both state and non-state actors: Brazil, Georgia, China, Pakistan, Russia, Iran, and Hamas are all said to have acquired drones, and although they are not all openly engaged in targeted killing as a policy, they presumably might be in the near future (O’Connell, supra note 96 at 5).

¹⁷⁵ Fisher, supra note 122 at 715.

¹⁷⁶ Ibid.

¹⁷⁷ Ibid.

¹⁷⁸ Ibid.

¹⁷⁹ Fleck, supra note 18 at 675 (as noted there, there are examples where this is not the case, including with respect to the maintenance of international peace and security, which is enforced by the Security Council under Chapter VII of the UN Charter, but these are very much the exception).

¹⁸⁰ O’Connell, Mary Ellen, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement (Oxford: Oxford University Press, 2008) at 7CrossRefGoogle Scholar; Hollis, Duncan B., “Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law” (2005) 23 Berkeley J. Int’l L. 137.Google Scholar

¹⁸¹ Ibid.

¹⁸² Fleck, supra note 18 at 685.

¹⁸³ O’Connell, supra note 180 at 7–8.

¹⁸⁴ Ibid. at 9. This perspective is supported by the fact that those judicial institutions that exist are limited to what is essentially voluntaryjurisdiction (Chesterman, Simon, “An International Rule of Law?” (2008) 56 Am. J. Comp. L. 331 at 357).CrossRefGoogle Scholar

¹⁸⁵ Ibid. at 12.

¹⁸⁶ Meessen, Karl M., “Unilateral Recourse to Military Force against Terrorist Attacks” (2003) 28 Yale J. Int’l L. 341 at 354.Google Scholar

¹⁸⁷ Fisher, supra note 122 at 753.

¹⁸⁸ Murphy and Radsan, supra note 97 at 408.

¹⁸⁹ Bhoumik, supra note 3 at 302.

¹⁹⁰ Schondorf, supra note 9 at 22.

¹⁹¹ Schmitt, supra note 27 at 745.

¹⁹² Stephan, supra note 169 at 97. The potential value of this may be seen in the fact that so many other states are acquiring drones.

¹⁹³ Ibid. at 99.

¹⁹⁴ Canestaro, supra note 124 at 32.

¹⁹⁵ Glazier, supra note 7 at 962.

¹⁹⁶ Ibid. at 964.

¹⁹⁷ Ibid. at 962.

¹⁹⁸ Many of the Predator drone strikes operated by the CIA in Pakistan, for example, were without the authorization of the Pakistani government and during a time when no armed conflict was occurring in that country (see O’Connell, supra note 96 at 8 and 16).

¹⁹⁹ Meessen, supra note 186 at 342.

²⁰⁰ Rosen, supra note 81 at 691.

²⁰¹ Fleck, supra note 18 at 79.

²⁰² Printer, Jr., supra note 81 at 377.

²⁰³ Additional Protocol I, supra note 17, Article 51 (2).

²⁰⁴ Additional Protocol I, supra note 17, art. 44; Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005) at 15–16 and 384–89.CrossRefGoogle Scholar

²⁰⁵ Should Additional Protocol I, supra note 17, Article 44( 4) be applicable, and for it to be so in this context it would have to be recognized as declaratory of customary international law, international humanitarian law would soften even that blow—those who violate the distinction requirement imposed by Additional Protocol I, Article 44(3), would forfeit the right to the protection accorded a prisoner of war, but “nevertheless be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol.” For further discussion of the implications of this provision, see Glazier, supra note 7.

²⁰⁶ Bizarrely, or perhaps not. Rosen, supra note 81, argues that the Additional Protocols were in fact developed to negate the superiority of Western nations, in particular the United States and Israel (at 688 ). According to Rosen, “third world” states, as well as Soviet bloc members, garnered the majority of the voting delegates and were therefore able to shape Additional Protocol I in an effort to level the playing field in their conflicts with the West (at 724–26). As Additional Protocol I has not been ratified by either Israel or the United States, this perspective, while interesting, is not integral to the arguments of this article, as the relevant provisions of Additional Protocol I must also have achieved customary international law status. Moreover, it is the Geneva Conventions that impose the conditions on combatants (Additional Protocol I is less clear on this point), and there is no indication these were drafted to mitigate the superiority of Western nations.

²⁰⁷ Rosen, supra note 81 at 375.

²⁰⁸ Ibid. at 376.

²⁰⁹ Fleck, supra note 18 at 27–30.

²¹⁰ Printer, Jr., supra note 81 at 365.

²¹¹ Hays Parks, Maj W., “Crimes in Hostilites,” Marine Corps Gazette (August 1976) at 21–22.Google Scholar

²¹² It is worth emphasizing that the requirement to distinguish oneself is not necessarily limited to the period during which one is engaged in hostilities (which is itself a broader concept than “directly participating”). Even Additional Protocol I, supra note 17, Article 44(3), which relaxes the requirement of distinction (though, as noted later in this article, it does not apply to the two armed conflicts focused upon), recognizes that in general it extends to “military operation[s] preparatory to an attack.”

²¹³ Guiora, supra note 81 at 329.

²¹⁴ Rosen, supra note 81 at 734.

²¹⁵ Ibid. at 742–43.

²¹⁶ Additional Protocol I, supra note 17, Article 52(1).

²¹⁷ Rosen, supra note 81 at 742.

²¹⁸ Schondorf, supra note 9 at 56.

²¹⁹ Additional Protocol I, supra note 17, Article 48.

²²⁰ Ibid., Article 44(3). Note, however, that as Israel and the United States did not accede to this instrument, it is not applicable in this context and cannot therefore absolve terrorists of their responsibility to distinguish themselves from civilians (Ben-Naftali, supra note 21 at 266).

²²¹ Rosen, supra note 81 at 748.

²²² The 2002 battle of Jenin between Palestinian forces responsible for several terrorist attacks and the Israel Defense Forces illustrates this effect. See Rosen, supra note 81 at 753–55 for a more detailed account, and at 752–69 for a number of similar examples.

²²³ Gross, supra note 10 at 405.

²²⁴ Rosen, supra note 81 at 685.

²²⁵ Printer, Jr., supra note 81 at 376. It is not that the terrorists should bear sole responsibility, as the attacking state would continue to be responsible for distinguishing between lawful and unlawful targets, but simply that the terrorists should bear the ultimate responsibility.

²²⁶ There is something to be said for holding anyone who will actually listen responsible for civilian deaths. What is important for this article’s purposes is that the negative consequences from this assignment of blame may be mitigated by the practice of targeted killing.

²²⁷ Melzer, supra note 145 at 1.

²²⁸ That is, it is legal under international humanitarian law: even where the resort to force is unjustified under jus ad bellum, its use may nonetheless be lawful under international humanitarian law.

²²⁹ Melzer supra note 145 at 1.

²³⁰ Ben-Naftali and Michaeli, supra note 21 at 280.

²³¹ Schondorf, supra note 9 at 56.

²³² Statman, supra note 14 at 180.

²³³ Ulrich, supra note 90 at 1063.

²³⁴ Schmitt, supra note 105 at 453.

²³⁵ Although international humanitarian law is not a reflection of morality in the way that criminal codes might be, it is worth noting that there are persuasive arguments as to why targeted killing is in fact morally preferable to other military practices currently recognized as lawful (see Statman, supra note 14).

²³⁶ Statman, supra note 14 at 186.

²³⁷ Solomon, supra note 13 at 103.

²³⁸ Ibid. at 109.

²³⁹ Ibid. at 115–16.

²⁴⁰ PCATI case, supra note 1 at para. 26.

²⁴¹ Fenrick, William J., “The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities” (2007) 5 J. Int’l Crim. Just. 332 at 336.Google Scholar

²⁴² PCATI case, supra note 1 at para. 16.

²⁴³ Additional Protocol I, supra note 17, Article 51 (3).

²⁴⁴ PCATI case, supra note 1 at para. 30.

²⁴⁵ Fleck, supra note 18 at 239; Geneva Convention II, supra note 15, Article 4A(6).

²⁴⁶ Fleck, supra note 18 at 261.

²⁴⁷ Keller, supra note 131 at 203.

²⁴⁸ Ibid. at 205.

²⁴⁹ Ibid.

²⁵⁰ PCATI case, supra note 1 at para. 33.

²⁵¹ Ibid. at para. 37.

²⁵² Ibid. at para. 35.

²⁵³ Ibid.

²⁵⁴ Ibid.

²⁵⁵ Ibid. at para. 40.

²⁵⁶ Ibid. at para. 39.

²⁵⁷ Keller and Forowicz, supra note 131 at 200.

²⁵⁸ Ibid.

²⁵⁹ Ibid. at 211–12.

²⁶⁰ Ibid. at 211.

²⁶¹ Ibid. at 204; Ben-Naftali, Orna and Michaeli, Karen, “International Decisions: Public Committee Against Torture v. Government of Israel” (2007) 101 A.J.I.L. 459 at 465Google Scholar; Eichensher, supra note 89 at 1875; Schondorf, supra note 77 at 307.

²⁶² Fenrick, supra note 241 at 336.

²⁶³ Keller, supra note 131 at 204.

²⁶⁴ Rosen, supra note 81 at 685.

²⁶⁵ Stephens, supra note 14 at 26.

²⁶⁶ Melzer, supra note 145 at 1.

²⁶⁷ Stephens, supra note 14 at 46.

²⁶⁸ Ibid. at 29.

²⁶⁹ Ibid.

²⁷⁰ Ibid. at 47.

²⁷¹ Ben-Naftali, supra note 21 at 278.

²⁷² Additional Protocol I, supra note 16, Article 50(1); Keller, supra note 131 at 220.

²⁷³ Ben-Naftali and Michaeli, supra note 21 at 278–79.

²⁷⁴ Melzer, supra note 145 at 6.

²⁷⁵ This is likely because of the question that was before the court (see Fenrick, supra note 241 at 337); the institutional limitations of any court will affect decisions and would have in this case, but as this article is considering the PCATI case as an effort at accommodating targeted killing within international humanitarian law, the limitations of the court are not as relevant as the result and the manner in which it was reached.

²⁷⁶ Fenrick, supra note 241 at 338.

²⁷⁷ PCATI case, supra note 1 at para. 40.

²⁷⁸ Eichensher, supra note 89 at 1876.

²⁷⁹ Keller, supra note 127 at 210.

²⁸⁰ Ibid.

²⁸¹ Ben-Naftali, supra note 85 at 329.

²⁸² Eichensher, supra note 89 at 1876.

²⁸³ Stephens, supra note 14 at 44.

²⁸⁴ Schondorf, supra note 77 at 307.

²⁸⁵ Fleck, supra note 18 at 261.

²⁸⁶ Ben-Naftali and Michaeli, supra note 261 at 464.

²⁸⁷ Klein, John J., “Problematic Nexus: Where Unmanned Combat Air Vehicles and the Law of Armed Conflict Meet,” Air and Space Power Journal, 22 July 2003, <http://www.airpower.maxwell.af.mil/airchronicles/cc/klein.html>.Google Scholar

²⁸⁸ O’Connell, supra note 96 at 8.

²⁸⁹ Mayer, supra note 95.

²⁹⁰ O’Connell, supra note 96 at 8.

²⁹¹ Ibid.

²⁹² Bradley, Curtis A., “The United States, Israel and Unlawful Combatants” (2009) 12 Green Bag 2d 397 at 407.Google Scholar

²⁹³ Gross, supra note 9 at 420.

²⁹⁴ Satterthwaite, Margaret L., “Symposium on the New Face of Armed Conflict: Enemy Combatants after Hamdan v. Rumsfeld: Rendered Meaningless: Extraordinary Rendition and the Rule of Law” (2007) 75 Geo. Wash. L. Rev. 1333 at 1395.Google Scholar

²⁹⁵ Glazier, supra note 7 at 997.

²⁹⁶ Ben-Naftali and Michaeli, supra note 261 at 464.

²⁹⁷ The other three requirements were: (1) that well-based, convincing, and verified information provide the basis for categorizing a civilian as falling into one of the discussed categories, with the burden of proof on the army being heavy; (2) that a thorough and independent investigation be performed (retroactively) regarding the precision of the target’s identification and the circumstances of the attack; and (3) that any resulting harm to civilians be proportional to the military advantage (PCATI case, supra note 1 at para. 40).

²⁹⁸ Ibid. at para. 40.

²⁹⁹ Ibid.

³⁰⁰ Melzer, Nils, “Targeted Killing or Less Harmful Means?—Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity” (2006) 9 Y.B Int’l Humanitarian L. 96.Google Scholar

³⁰¹ Keller, supra note 131 at 213.

³⁰² Milanovic, supra note 14 at 390.

³⁰³ Ben-Naftali, supra note 85 at 330.

³⁰⁴ Schondorf, supra note 77 at 309.

³⁰⁵ Melzer, supra note 300 at 95.

³⁰⁶ Ibid. at 97–99.

³⁰⁷ Fleck, supra note 18 at 38.

³⁰⁸ Melzer, supra note 300 at 104.

³⁰⁹ Ibid. at 100.

³¹⁰ Jochnick, Chris af and Normand, Roger, “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harvard Int. L.J. 49–95 at 68.Google Scholar

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³¹² Melzer, supra note 300 at 108.

³¹³ Ibid. at 111.

³¹⁴ Ibid. at 100.

³¹⁵ Glazier, supra note 7 at 997. An exception to this general lack of independent expression is Additional Protocol I, Art. 35(2) and (3), which prohibit, inter alia, the use of weapons that cause “superfluous injury.”

³¹⁶ Melzer, supra note 300 at 110.

³¹⁷ Ibid. at 108.

³¹⁸ Milanovic, supra note 14 at 390.

³¹⁹ Melzer, supra note 300 at 109.

³²⁰ Hurka, Thomas, “Proportionality in the Morality of War” (2005) 33 Phil & Pub. Aff. 34 at 36.Google Scholar

³²¹ Ibid. at 112.

³²² Ibid.

³²³ Proulx, supra note 49 at 810.

³²⁴ Ibid.

³²⁵ Gross, supra note 10 at 456–57.

³²⁶ Doswald-Beck, Louise, “The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?” (2006) 88(864) International Review of the Red Cross 882CrossRefGoogle Scholar; as mentioned, it has been suggested that human rights law was in fact the court’s source for the “least harmful means” requirement (Milanovic, supra note 14 at 390).

³²⁷ Melzer, supra note 300 at 112.

³²⁸ Ulrich, supra note 90 at 1056.

³²⁹ Ibid.

³³⁰ Klein, supra note 287.

³³¹ See, for example, the International Criminal Tribunal for the Former Yugoslavia: Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 39 I.L.M. 1257 (2000), in particular, the report on “The Attack on the Djakovica Convoy on 14/4/99,” which describes the difficultis arising from the operating height of manned aircraft (at 1276).

³³² It may be the case that certain factors, such as the involvement of “mission essential” equipment that is considered too valuable to risk destruction, will prevent lower altitude in some contexts (Klein, supra note 287), but otherwise the risk of losing the US $4.5 million that a Predator drone is said to cost (O’Connell, supra note 96) should not prevent even the most cold-hearted from operating the drones at a lower altitude, given that states may be held liable to compensate financially those who suffer unjustifiable damage at the hands of those states.

³³³ Munoz-Rojas, Daniel and Fresard, Jean-Jaques, “The Roots of Behaviour in War: Understanding and Preventing IHL Violations” (2004) 853 Int’l Rev. Red Cross 204.Google Scholar

³³⁴ Ibid.

³³⁵ Glazier, supra note 7 at 959.