Politics by Other Means: The Battle over the Classification of Asymmetrical Conflicts

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift in the attitude of humanitarian actors: while IHL has traditionally been considered the most effective legal constraint on the brutality of warfare, the current trend perceives International Human Rights Law as the desirable legal regime for regulating asymmetrical conflicts. Humanitarian actors prefer to classify these conflicts as non-international armed conflicts because the relative lack of IHL norms applicable to that class of conflict enables extensive application of the more protective international human rights law as a complementary mechanism. Nonetheless, the adoption of this classification by the U.S. Supreme Court in Hamdan v. Rumsfeld may have been a Pyrrhic victory for this novel approach due to the United States’ reluctance to apply international human rights law norms to extraterritorial conflicts. Thus, instead of the full application of IHL norms, only the vague norms relevant to non- international armed conflicts apply, without the benefit of applying international human rights law as a complementary legal regime.