I’ve just been reading (HatTip to Andy McCarthy) an outstanding article on the laws of war (or lack thereof) by David Rivkin and Lee Casey.
I highly recommend the whole (long) article, but, sucker for ironies, contradictions, hypocrisies that I am, I was especially struck by Rivkin’s and Casey’s discussion of one of the reasons the United States has steadfastly refused to sign on to the Protocol I Amendments (1977) to the Geneva Convention (1949). Those amendments, they write, were directed at two goals, the first of which concerns me here:
to revise the long-standing rule that only states can create and utilize military establishments that are legally “privileged” to use force, and the related requirement that all legitimate militaries must organize and operate like “regular” armed forces in order to maintain their “privileged” status.
Before Protocol I, combatants were required to meet four criteria:
(1) be subject to a responsible chain of command; (2) wear uniforms; (3) carry their arms openly; and (4) conduct their operations in accordance with the laws and customs of war. Groups that did not meet these requirements were considered unprivileged, and their individual members could be severely punished for nothing more than engaging in hostilities. As noted in the British Manual of Military Law, applicable during the world wars:
If persons take up arms and commit hostilities without having satisfied these conditions, they are from the enemy’s standpoint guilty of illegitimate acts, and, when captured, are liable to punishment as war criminals.
“By contrast,” Rivkin and Casey write,
Protocol I, at least arguably, eliminates the requirement of government sanction for lawful combatant status, and the rules requiring uniforms and the open carriage of arms are relaxed. In this regard, under Protocol I, irregular forces need to produce their arms and identifying badges only immediately before launching an attack, and can only be targeted themselves while preparing for an attack or attacking. At all other times, Protocol I requires irregulars to be treated as civilians, who can be arrested, but not targeted. Obviously, these changes bestow a dramatic advantage on the hit-and-run tactics favored by guerrillas, and seriously handicap regular armed forces.
That, in large part, is why the United States has refused to sign, a small detail that has not prevented its critics here and abroad from accusing it of war crimes for not following its strictures.
Rivkin and Casey argue, persuasively I believe, that the United States’s refusal to sign Protocol I
does not reflect either a shortage of compassion by the United States or some formalistic American veneration of the old pedantic legal paradigm. Rather, this approach constitutes one of the first major humanitarian advances in the modern laws of war and is therefore, well worth upholding. It was, in fact, the centralization of the right to make war in the state, rather than in powerful aristocrats or self-sustaining condottieri bands, that brought civil peace and order to Europe, marking the transition from a medieval to a modern world. This centralization also fostered the conditions for the establishment of regular, disciplined armies capable of respecting the laws of war, and inclined to do so. At the most fundamental level, the state sanction requirement reflects the distinction — between force used for public ends and violence used for private purposes — that constitutes the moral core of the traditional laws of war. The many governments and NGOs that claim to be committed to the development of “humanitarian” jus in bello norms have in truth accepted the elimination of these critical distinctions between privileged and unprivileged combatants, even though maintaining the difference between public and private uses of violence is essential if war is to retain its moral context….
So, you may be wondering about now, where is the irony or contradiction or hypocrisy that I find lurking in (or suggested by) this discussion? It is here:
Many (though not all) of the severest critics of the right of individual Americans to own and bear arms, especially the right to carry concealed weapons, are enthusiastic supporters of Protocol I who believe the United States should have signed it and is guilty of war crimes for violating it even though it did not sign. Thus they believe that in the United States the state itself should have a monopoly on weapons ownership, that the Second Amendment protects a state’s national guard, not an individual right. American citizens, in this view, have no right to own a weapon in their own homes for self defense, even though they cheerfully recognize the legitimate authority of the state and submit willingly to its laws.
By contrast, by supporting Protocol I they also believe that states do not have a monopoly on the legitimate use of military force, that individuals who recognize no national or international authority have a right to be recognized as a legitimate combatants even though they wear no uniform, are subject to no state laws or control, and carry concealed weapons used to target civilians.
Go figure.
