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

Abstract:     
For more than fifty years following the 1949 revision of the Geneva Conventions, the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - were understood as the exclusive standard for determining application of 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; intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3.

The military response to the terrorist attacks of September 11, 2001 threw this paradigm into disarray. These events exposed the gap in legal regulation of armed conflict. Although the U.S. Supreme Court decision in Hamdan v. Rumsfeld rejected 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, that decision did not address regulation of hostilities. It was, instead, the conflict between Israel and Hezbollah that exposed the unacceptable consequences of this gap in legal regulation. While numerous voices from the international community invoked law of war as a basis to condemn both parties, there was 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 "transnational armed conflict." This category is based on the de facto existence of armed conflict, regardless of geographic scope. The such armed conflicts trigger for application of the foundational principles of the laws of war, and how such application is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated the adoption of national military policies mandating application of these principles to all military operations.

Number of Pages in PDF File: 75

Keywords: International Law, Law of Armed Conflict, Law of War, National Security Law, Common Article 2, Common Article 3, Hamdan

JEL Classification: K33, K19

Accepted Paper Series