Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict
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.