Thursday, September 06, 2007

The overlawyered war 

Glenn Reynolds has put up an interesting post on the lawyering, and overlawyering, of the war. There are lots of interesting commentary, links, and thoughtful email responses, to wit:

It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe. . . . Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001 this war has been lawyered to death.

I remember thinking during last summer's Israel-Hezbollah war that the Geneva Convention of 1949, which governs the conduct of war and obviously postdates Roosevelt's time, may in fact operate to impose enormous disadvantages on countries that actually care about following the law, particularly in asymmetrical wars. The Fourth Geneva Convention essentially criminalizes all forms of collective punishment and reprisals against civilians, both of which were favorite tactics of the Anglo-American alliance during World War II. But what if lasting victory only comes with breaking the enemy population's will to fight? Has the Geneva Convention of 1949 had the perverse effect of making it much harder for law-abiding countries to wage war to the point of victory? How much longer would Churchill and Roosevelt have taken to win World War II if they had worked under modern rules?


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By Blogger Who Struck John, at Thu Sep 06, 10:07:00 PM:

Yes, it has. Even worse is the Additional Protocol I, which the US has never ratified, but which the mainstream media consistently implies is the standard we should operate by. It is Additional Protocol I that extends Geneva protections to opponents in mufti.  

By Anonymous Anonymous, at Thu Sep 06, 11:38:00 PM:

It's not just senior decisionmakers who suffer from legal paralysis. It extends all the way down the line. Or, at least, it did in several federal agencies I know of.  

By Anonymous Anonymous, at Fri Sep 07, 01:28:00 AM:

Open question to anyone out there.

Has there been a single conflict outside of Europe in the past 60 years where the combatants actually followed the Geneva Conventions?

I know that we haven't fought an emey that has since the Nazis (of all people). Japanese starved a third of our POWs, North Koreans and Chinese also starved them and sent a couple dozen back to the USSR and GULAGs for intel. North Vietnamese beat them. Cambodians (Mayaguez) executed them. Iraqis beat them. Al Qaeda - no comment needed.

The Soviets didn't even teach their troops rules concerning Red Cross laden vehicles, so I find it hard to believe anyone else in the world is actually paying attention. So, realistically speaking, are the Geneva Conventions basically just an acient European thing that Westerners follow? And everyone just pretends otherwise?

Has ANYONE else actually followed them?  

By Blogger Dawnfire82, at Fri Sep 07, 08:31:00 AM:

They aren't followed in the Middle East, either.  

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