Hezbollah and Hamas provide some interesting implications from their current political situation. Hamas can no longer be relegated to the role of “lunatic fringe,” since they constitute the democratically elected government of the Palestinian Authority. 1 There are three criteria to be considered to qualify for the status of belligerency: “rebellion must be organized around a government, the revolt must extend a local uprising, and a substantial area must be under the de facto control of antigovernment forces.” 2 Based on these criteria, Hamas fits the bill. They are organized and have popular support, and they control the Gaza Strip and the West Bank. Hezbollah’s qualifications are not as clear cut due to their minority status.
However, Wolfe’s criteria for belligerency omits a critical point. Belligerency status in the context of international law specifically subjects the belligerency to both the protection and obligations of the laws of war and the Geneva Convention. This principle was established in 1861, when although formal recognition of independence was withheld, Britain, Spain and France recognized the Confederacy as “a belligerent community subject to the rules of the law of war and entitled to the protection thereof.” 3 The Geneva Convention lays out some specific criteria for privileged combatants (those protected by the Geneva Convention) who are not members of the armed forces of a recognized nation-state:
“(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.”4
Hamas and Hezbollah are both organized resistance movements with a command structure. However, they do not wear uniforms or other distinctive insignia, carry arms openly, or follow the laws of war. They deliberately target civilians and hide behind white flags amongst the population; the civilian blood on their hands makes them unprivileged combatants, not protected by the Geneva Convention.
It is both politically and morally contradictory to recognize either Hamas or Hezbollah as a belligerency in the context of international law without also holding them to the standard of the rules of war. If they are to be recognized as a belligerency then we should be following the example of Nuremberg and more recently in Yugoslavia and trying the leaders of Hamas and Hezbollah for war crimes before an international tribunal.
References:
1. Central Intelligence Agency. CIA World Factbook: West Bank. (Nov. 3, 2009), https://www.cia.gov/library/publications/the-world-factbook/geos/countrytemplate_we.html.
2. JAMES HASTINGS WOLFE, MODERN INTERNATIONAL LAW: AN INTRODUCTION TO THE LAW OF NATIONS 59 (PRENTICE HALL 2002).
3. Id.
4. Geneva Convention Relative to the Treatment of Prisoners of War, art. 4, Aug 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68.
