Hamdan, Lebanon, and the regulation of hostilities: the need to recognize a hybrid category of armed conflict.

• Author: Corn, Geoffrey S.

ABSTRACT

For more than fifty years following the 1949 revision of the Geneva Conventions, legal scholars, government experts, and military practitioners understood the articles that defined when the protections of these treaties came into force--Common Articles 2 and 3--as the exclusive criteria which triggered the laws of war. From these two articles emerged an "either/or" law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war, whereas intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. Because many military operations during the past two decades did not fit neatly into either of these categories, however, the armed forces of several states, beginning with those of the United States, adopted policies requiring application of the foundational principles of the laws of war to all military operations, regardless of how those operations were characterized as a matter of law. These policies reflected a pragmatic recognition that the regulatory framework provided by these principles was essential for the effective and disciplined execution of military operations.

This policy-based application of the principles of the laws of war proved generally effective in addressing operational and tactical issues during this period. However, the terrorist attacks of September 11, 2001 and the subsequent initiation of large-scale extraterritorial military operations against non-state armed entities exposed the gap in legal regulation of armed conflict and challenged the efficacy of this policy-based application of legal principles. With regard to the treatment of captured and detained personnel, the issue of legal regulation came to a head in Hamdan v. Rumsfeld, with the U.S. Supreme Court ultimately rejecting the Bush administration's reliance on this "either/or" law-triggering paradigm as a basis to deny the applicability of the humane treatment mandate to captured al Qaeda personnel. It was the conflict between Israel and Hezbollah in Lebanon that exploded soon after that opinion, however, that truly exposed the unacceptable consequences of this gap in legal regulation. In response to that conflict, numerous voices from the international community invoked the principles of the laws of war related to the application of combat power as a basis to condemn both parties, with virtually no consideration of the reality that, like the global war on terror, the conflict defied traditional categorization under the Common Article 2/3 paradigm.

This Article asserts that the changing nature of warfare necessitates recognition of a hybrid category of armed conflict for purposes of triggering the foundational principles of the law of war. Called "transnational armed conflict," this category is based on the de facto existence of armed conflict, regardless of the geographic scope of the conflict. The Article explains how such a de facto trigger for application of the foundational principles of the laws of war--necessity, distinction, discrimination, humane treatment, and the prohibition against inflicting unnecessary suffering--is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated application of law of war principles as a matter of national military policy. The Article also explains how this pragmatic logic was reflected in Hamdan but that the impact of that decision is underinclusive because it failed to address principles related to the application of combat power. This Article cites other authorities in support of this hybrid law-triggering category. The Article concludes with a recommendation that the U.S. Department of Defense take the lead in recognizing this category of armed conflict, which could be the first step in a broader recognition.

TABLE OF CONTENTS I. INTRODUCTION II. CONFLICT CLASSIFICATION: THE INHERENT INSUFFICIENCY OF THE TRADITIONAL APPROACH TO DETERMINING APPLICABILITY OF THE LAWS OF WAR III. HOW A PRAGMATIC UNDERSTANDING OF THE DEVELOPMENT OF NATIONAL SECURITY POLICY BOLSTERS THE NECESSITY OF RECOGNIZING A HYBRID CATEGORY OF ARMED CONFLICT IV. RECOGNIZING THE REGULATORY GAP: HOW MILITARY POLICIES REFLECT THE NECESSITY OF A "PRINCIPLED" APPROACH TO MILITARY OPERATIONS V. EMPLOYING NATIONAL COMBAT POWER TO ENGAGE TRANSNATIONAL NON-STATE ACTORS: EXPOSING THE LIMITS OF POLICY-BASED REGULATION OF ARMED CONFLICT VI. A PRAGMATIC RESPONSE TO THE REGULATORY GAP: THE TRANSNATIONAL ARMED CONFLICT TRIGGER VII. THE TRANSNATIONAL ARMED CONFLICT TRIGGER AND THE CONTINUING RELEVANCE OF COMMON ARTICLE 3'S ARMED CONFLICT ASSESSMENT CRITERIA VIII. CONCLUSION: RESTORING THE BALANCE NECESSITY AND HUMANITY APPENDIX 1: PRINCIPLES OF THE LAWS OF WAR IN THE OPERATIONAL LAW HANDBOOK I. INTRODUCTION

United Nations Official: Israeli Bombardment of Lebanon Violates Humanitarian Law (1)

The headline above, representative of the barrage of commentary generated by the recent conflict in Lebanon, (2) presumes that humanitarian law--the laws of war (3)--applies to extraterritorial armed conflicts between states and non-state armed entities. When juxtaposed with the images of death and destruction inflicted by the application of combat power by both the Israeli Defense Forces and the armed component of Hezbollah, such a proposition seems unremarkable, if not essential to protect the innocent civilians invariably victimized by such conflicts. When analyzed in accordance with the well-established legal paradigm that has evolved since 1949 to define when this regulatory framework comes into force, however, this proposition is indeed remarkable. Prior to the recent conflict in Lebanon, Professor Adam Roberts highlighted this reality in the following perspective:

What is the role of the laws of war in the ongoing "war on terror" proclaimed and initiated by the U.S. following the terrorist attacks of 11 September 2001? The body of international law applicable in armed conflict does appear to have a bearing on many issues raised in antiterrorist military operations in Afghanistan as well as elsewhere, including particularly the issues of discrimination in targeting, protection of civilians, and status and treatment of prisoners. Because of the unusual character of the armed conflict, different in important respects from what was originally envisaged in the treaties embodying the laws of war, a key issue in any analysis is not just the law's application or otherwise by the belligerents, but also its relevance to the particular circumstances of this war. It is not just the conduct of the parties that merits examination, but also the adequacy of the law itself. (4) This Article will attempt such an examination: it will demonstrate how the existing paradigm, originally conceived to ensure maximum applicability of the humanitarian protections of the laws of war to situations involving the application of combat power by armed forces, unfortunately became too restrictive to achieve this important purpose. As a result, and in response to the changing nature of warfare so publicly illustrated by this recent conflict in Lebanon and the international response it evoked, a new evolution is necessary to effectively reconcile the expectations of both professional military forces and the international community with the applicability of the law regulating combat operations. This Article will propose such an evolution and, accordingly, will argue that it is necessary for the international community, and the United States in particular, to endorse a new trigger for the application of the foundational principles of the laws of war--principles that provide a baseline of regulation not only for the treatment of captured or detained personnel, but also the application of combat power. This trigger will be characterized as "transnational armed conflict," a term used to represent the extraterritorial application of military combat power by the regular armed forces of a state against a transnational non-state armed enemy.

In a sense, however, this evolution will actually reflect a reversion to the historical concept of ipso facto regulation of combat operations by professional armed forces. As this Article will suggest, the history of warfare reflects a basic truism: military leaders have always understood the necessity of imposing a regulatory framework on the use of combat power. While the law-triggering paradigm that emerged out of the 1949 revision to the Geneva Conventions sought to ensure such regulation, it unfortunately evolved to impose a legal impediment to such ipso facto regulation. The policy response by the U.S. armed forces, emulated by other professional armed forces and even the United Nations, however, reflects the continuing validity of the military logic that animated this history of internal regulation. Ensuring such regulation through national policy is an insufficient response to this impediment. Therefore, the transnational armed conflict trigger proposed in this Article is necessary to reconcile operational reality with international legality.

2. CONFLICT CLASSIFICATION: THE INHERENT INSUFFICIENCY OF THE TRADITIONAL APPROACH TO DETERMINING APPLICABILITY OF THE LAWS OF WAR

   To understand why endorsing a new category of armed conflict--transnational armed conflict is the necessary answer to respond to the realities of contemporary military operations, it is first necessary to understand the limitations inherent in the traditional Geneva Convention-based law-triggering paradigm. This paradigm is based on Common Articles 2 and 3 of these four treaties. Common Article 2 defines the triggering event for application of the full corpus of the laws of war: international armed conflict. (5) Common Article 3, in contrast, provides that the basic principle of humane treatment is applicable in non-international armed conflicts occurring in...