Armed Groups and the Law

Abstract

In the tumultuous opening decade of the twenty-first century, the debate over which legal regime should be applied to armed groups leaped from its historical position in the pages of military manuals and academic journals to the front pages of leading newspapers and cable news services. As the violence by armed groups metastasizes and takes on new and ever-more-virulent forms, the legal system and its practitioners have struggled to keep up. There is every reason to believe that the United States is approaching a tipping point on the matter, and will soon be compelled to give the legal regime as much attention as has been given to strategies and policies for responding to the threats. National security and defense strategists have long referred to the "spectrum of conflict," which stretches from low-level crime or civil disturbances in an otherwise "peaceful" situation at one end to unrestricted war between states at the other. Bookstores and leading journals are increasingly filled with dark and disturbing assessments documenting the emergence of a "new generation" of warfare operating in the middle of the spectrum—one characterized by strategies and tactics that blur the distinction between combatants and civilians, and that are often deployed in densely populated urban centers where avoiding collateral injury or damage to civilians and civilian objects is particularly difficult, and one that has now spread throughout what has been labeled the "arc of instability," with deadly forays into New York, Bali, Madrid, and London. The proponents and perpetrators of this new generation of warfare, which some believe now represents the dominant warfare paradigm, and which might soon be utterly transformed by the addition of weapons of mass destruction, pose a daunting challenge to our existing legal regime. We find ourselves with a legal regime for large-scale violence that is seen by some as binary and yet, ironically, complete. On the one hand, we have a "warfare" paradigm for formal belligerencies and insurgencies, ...