Geography of Armed Conflict: Why it is a Mistake to Fish for the Red Herring

• Author: Geoffrey S. Corn
• Position: Presidential Research Professor of Law, South Texas College of Law
• Pages: 77-107

Geography of Armed Conflict Vol. 89

77

I

Geography of Armed Conflict: Why

it is a Mistake to Fish for the

Red Herring

Geoffrey S. Corn*

I. INTRODUCTION

dentifying a framework for assessing the permissible geography of armed

conflict must be driven by both strategic and legal considerations. Armed

conflict by its very nature manifests the exercise of national power impli-

cating the most fundamental aspect of sovereignty: the right and obligation

of the State to protect itself from internal or external threat.

1

Categories of

armed conflict

2

and their associated legal regimes evolved in response to

this reality. Up until recently, almost all threats functionally sufficient in

nature and magnitude to necessitate a full–blown military response (the use

of military force to execute combat operations, as opposed to constabulary

* Pre sidential Research Professor of Law, South Texas College of Law; Lieutenant

Colonel, U.S. Army (Ret.). Special thanks to my research assistant, Joel Glover, whose

devotion to accomplishing this mission undoubtedly mirrored the type of devotion he

brought to his duties as a platoon leader and a battalion effects coordinator in Iraq , and as

co–captain of Army football. The opinions shared in this paper are those of the auth or

and do not necessarily reflect the views and opinions of the U.S. Naval War College,

the Department of the Navy, or Department of Defense. © 2013 by Geoffre y S. Corn.

1

. Deni Elliott, Terrorism, Global Journalism and the Myth of the Nation-State, 19 JOURNAL

OF MASS MEDIA ETHICS: EXPLORING QUESTIONS OF MEDIA MORALITY 29 (2004).

2

. Dietrich Schindler, The Different Types of Armed Conflicts According t o the Geneva Conven-

tions and Protocols, 63 THE HAGUE ACADEMY COLLECTED COURSES 131 (1979).

International Law Studies 2013

78

support operations)

3

took the form of hostilities between two or more

States (characterized by international law as international armed conflicts),

and bringing into force the full corpus of the law of armed conflict

(LOAC), or internal dissident or insurgent threats involving hostilities be-

tween State forces and organized armed groups (characterized by interna-

tional law as non–international armed conflicts, and bringing into force a

less comprehensive albeit substantial body of LOAC regulation). Accord-

ingly, LOAC responded to these two “types” of armed conflicts

4

with a

continual and important progression of regulatory norms applicable to

both categories.

5

These norms, and the constant progression of their con-

tent and applicability, were and are intended to balance the strategic needs

of the State with the humanitarian objectives that have always animated

conflict regulation.

6

It is debatable, however, whether these two categories of armed con-

flict were from inception underinclusive, in the sense that they failed to

account for situations of armed hostilities falling outside their scope.

7

This

underinclusiveness is illustrated by U.S. military history. Examples of com-

bat operations that would fail to fit nicely within these two dominant cate-

gories of armed conflict include the U.S. participation in the multinational

response to the 1900 Boxer Rebellion in China; the 1916 U.S. punitive raid

against Pancho Villa in Mexico; and the U.S. and Allied intervention in the

Russian Civil War (which actually resulted in a U.S. force presence on Ru s-

sian soil through 1921, long after the end of World War I).

8

These exam-

3

. See Keith Robert Lovejoy, A Peacekeepi ng Force for Future Operations: Another Reasses s-

ment of th e Constabulary Force Concept (2003), available at http://www.dtic.mil/dtic/tr

/fulltext/u2/a414134.pdf.

4

. Sylvain Vité, Typology of Armed Conflicts in International H umanitarian Law: Legal Con-

cepts and Actual Situations, 91 INTERNATIONAL REVIEW OF THE RED CROSS 1, 82–86 (2009)

(discussing the different types of armed conflict) [hereinafter Vité].

5

. JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, ICRC, CUSTOMARY IN-

TERNATIONAL HUMANITARIAN LAW (200 5), ava ilable at http://www.icrc.org/customary-

ihl/eng/docs/v1_cha_chapter1_rule1 (last visited Aug. 9, 2012).

6

. ICRC, INTRODUCTION TO THE LAW OF ARMED CONFLICT: BASIC KNOWLEDGE,

available at http://www.icrc.org/eng/assets/files/other/ law1_final.pdf (last visited Sept. 9,

2012) and Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, 317 INTER-

NATIONAL REVIEW OF THE RED CROSS 125 (1997).

7

. Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: The Need to R ecog-

nize a Hybrid Category of Armed Conflict, 40 VANDERBILT JOURNAL OF TRANSNATIONAL

LAW 295, 296–97 (2007) [hereinafter Corn].

8

. Michael Parenti, Rulers of the Planet: Why US Leaders Intervene Everywhere, 5 GLOBAL

DIALOGUE (2003), available at http://www.worlddialogue.org/print.php?id=220.