A War, by Any Other Name, Would Still Smell of Napalm: The Use of Military Force, or 'Combat,' as a Truly Objective Approach to Clarifying the Confused Status of Conflict Status

Abstract

The necessary first step of any Law of Armed Conflict (LOAC) analysis is “conflict status,” or jurisdiction: Does LOAC apply? Applicability requires, inter alia, an “armed conflict,” but there is no authoritative definition of what an armed conflict is. Absent an accepted definition, courts and publicists employ many frameworks for determining conflict status. These tests are subjective and in tension with the text and purpose of LOAC and together their variety further obfuscates the law. The stakes are high, which if any humanitarian protections apply to a situation, and the uncertainty undermines LOAC. The problem stems from the essential nature of LOAC – a body of deliberately ambiguous but ethically ambitious treaty law placed on top of a state-centric and amoral body of customary international law (CIL). I conclude that the most important conflict status demarcation is the line between armed conflicts and other violence, not the intra-armed conflict distinctions. Therefore, I propose the following definition and framework for that inquiry: “armed conflict” in means “combat,” which then triggers the application of LOAC. Where the character of a violent situation is not clear on its face from the nature of the violence, the orders under which State forces employ lethal force is the determinative indicator. No separate inquiry is needed to determine if a non-State group has the organization to be a Party to an armed conflict, as that fact can be inferred from the nature of the State response to the group. I thus reject the emphasis on indeterminate factors such as intensity and organization in favor of the intrinsic quality that distinguishes armed conflict from other activities and provides the necessity for LOAC’s humanitarian rules and the rationale for its limitations to jus in bello. Treating combat as per se armed conflict is objective, based on information readily available, and consistent with the text of modern treaties and LOAC’s humanitarian values.