Lebanon War Bolsters Emerging Law-of-War Consensus

As the proverbial dust settles over the battlefields of southern Lebanon, a major change in the landscape of legal regulation of warfare is taking hold. This change, first exposed by the military operations launched by the United States against Al Qaeda, has led to the widespread expectation that conflicts between states and transnational non-state entities must be governed by the laws of war, a body of international law historically applied to conflicts between states. While the extent of combat and associated destruction witnessed by the world in the recent conflict between Israel and Hezbollah may suggest that such a proposition is unremarkable, and perhaps even essential, it in fact represents a fundamental shift in the traditionally understood paradigm of law of war applicability.

Throughout history, professional armed forces have observed limits on wartime conduct. For centuries, these limits were often self-imposed, taking the form of internal codes of conduct. These limits, or "rules," gradually ripened into accepted norms of customary international law
binding on all nations. Eventually, beginning in the mid-19th Century, the rules of war were codified in multilateral treaties. Today, the most well known of these treaties are the four Geneva Conventions of 1949 for the protection of victims of war. The controversy surrounding the applicability of these treaties to terrorist detainees is a direct result of the traditional scope of law-of-war application.

Until 1949, the laws of war were understood to apply to war, a simple and logical expectation. However, as states increasingly avoided characterizing their military operations as "war," problems of implementation arose. In response, the Geneva Conventions included "trigger" provisions establishing when the law would come into force. Instead of linking application of the law to a declaration of war, the term "armed conflict" was adopted as the basic triggering event. Use of this term was intended to ensure maximum application of the humanitarian rules whenever armed forces engaged in combat activities, even when the parties to a conflict refused to acknowledge a state of war.