Irregular Armed Conflict and the Development of the Laws of War, 1863–1977
The legal controversies that accompany contemporary war—from drones and detainees to intervention and interrogation—are often linked to the idea that the laws of war have struggled to keep up with changing modes of warfare in our global age. No longer confined to a site of battle, war today is everywhere and nowhere. Such irregular forms of warfare—generally waged by and against nonstate actors—are often assumed, almost by definition, to have been external or tangential to the historical development of a legal infrastructure designed to regulate inter-state war. This panel turns the table on that assumption and places irregular warfare at the heart of the development of the laws of war since the mid-nineteenth century.
The panel aims to uncover the close, albeit contentious, relationship between practices of irregular conflict and the laws of war; to explain divergent military practices and legal developments as contingent upon the course of particular asymmetric conflicts; and to contribute some historical context to contemporary law-of-war debates. The panel turns on three milestones in the development of the laws of war: General Order 100, the 1863 U.S. military code issued during the American Civil War; the 1949 Geneva Conventions for the protection of war victims, a set of treaties pushed by the international Red Cross movement (established in the year General Order 100 was issued); and the 1977 Additional Protocols to the 1949 Geneva Conventions, which updated the laws of war in the wake of decolonization.
The first paper shows that General Order 100 was less a building block of modern international law than a stumbling block for U.S. adherence to that law. The order’s legitimation of brutal practices helps explain both U.S. wartime conduct up through the Boxer Rebellion and Philippine War, and American alienation from late nineteenth century international legal standards requiring humane treatment of prisoners and noncombatants. The second paper traces debates within the Red Cross movement over that very requirement of humane treatment in internal wars from 1863 to 1949, when the requirement was codified as Common Article 3 of the Geneva Conventions. While the perceived need for humanitarian protections in internal wars became widespread as a result of the rise of European self-determination movements after World War I, formalizing those protections in 1949 ultimately had less significance for Europeans than it did for colonial peoples struggling for independence. The third paper shows how one of those struggles, the Vietnam War, prompted the development of a key legal requirement of modern war—that force be used proportionately—which was then formalized in the 1977 Additional Protocols.
In reappraising the development of the laws of war, the panel hopes to spark a conversation about the relationship between that history and present-day issues. Our Commentator is a leading expert on the laws of war as practiced today, and our audience, we are sure, would be eager to engage on a topic that marries historical scholarship with contemporary concern.