Constraining Targeting in Noninternational Armed Conflicts

An American drone pilot thousands of miles away from Afghanistan sees a tempting target on his computer screen. Thanks to the Predator drone's video capabilities,' the pilot is treated to the spectacle of a known Taliban commander and over a dozen other armed men greeting a dozen tribesmen, who are also armed to the teeth. Everyone depicted on-screen has a gun. The pilot fires the Predator's missile.

Shortly thereafter, he confirms the deaths of thirty Taliban fighters and associated forces. While the facts above, particularly the presence of the known Taliban commander, tend to show that the strike was consistent with the laws of armed conflict (LOAC), this Article argues that international law should require more. Suppose, for example, that the Taliban commander and the tribesmen, while currently fighting the United States and President Hamid Karzai's regime installed in Afghanistan after the post-September 11 U.S. intervention, were conducting a jirga--a meeting with elders--to decide whether they should make peace with the Karzai regime.