Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations

Abstract

Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. Because these operations invoke the authority of the LOAC, they should and must be treated as armed conflicts. LOAC principles must be identified and must be broad enough to provide the authority necessary to bring the transnational enemy to submission while ensuring that that authority does not override fundamental humanitarian protections for victims of war: This Article proposes three essential pillars of this regulatory foundation: military necessity, targeting (object/distinction and proportionality), and humane treatment. These principles provide the balance between authority and obligation that is so essential for the effective and disciplined application of combat power Like the treatment of internal armed conflict, these pillars can form a foundation for a more comprehensive treatment of regulatory analysis, encompassing other issues such as command responsibility, criminal liability, access to judicial review, perfidy and treachery, and medical obligations.

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