Since I was an undergraduate, I've been fascinated by the impact of various attempts to impose limitations on warfare by way of international law and treaties. In Spring of 2004, I took courses from both the Navy and Marine Corps on military leadership and ethics; and a philosophy course that same term on Pacifism, Just War, and Terrorism. Among other topics, these courses discussed the philosophical and historical underpinnings of the movement to mitigate the violent impact of war through legislation and concensus. The most high profile examples include:
At the risk of inviting scorn and ridicule, I would argue that these efforts have been admirable, but ultimately misguided and tragically ineffective. The Kellogg-Briand Pact in particular was entirely discredited by the outbreak of World War II, but it wasn't conceived in a vacuum, and its historical context relative to these other examples is worth studying. My inclination is that the combined intellectual and social forces of the Age of Enlightenment, the Scientific Revolution, , and the Progressive Movement inspired a belief that war could be mitigated or even prevented through this international concensus. Instead, I would argue in this potential dissertation that the combined effects of these laws and treaties have instead pushed warfare to be more violent, and perhaps even more frequent than it would have been without them. Here are a few of the examples that I would discuss at length.
Weapon and Ammunition Restrictions: As stated in its name, the St. Petersburg Declaration of 1868 banned the use of explosive projectiles less than 400 grams in weight. Declaration III of the Hague Convention of 1899 banned the use of "bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core, or is pierced with incisions" - these include hollow-point bullets commonly used by hunters. While Western armies observe these restrictions, any such restraints are generally ignored by terrorists, guerrillas, and insurgents. The practical result is that Western soldiers are left at a disadvantage; and warfare is made more palatable because it's somehow "less horrific", meaning that it has probably made war more likely instead of less.
Detainees and Prisoners of War: The definition and prescribed restrictions on the treatment of prisoners of war are enumerated in Chapter II of the Annex to the Hague Convention of 1907; this was expanded in the Third Geneva Convention of 1929, which was further revised in 1949. These restrictions were intended to reduce casualties by guaranteeing rights and equitable treatment to prisoners of war, giving combatants an incentive to surrender instead of fighting to the death. The practical results have been mixed. These international treaties have been largely ineffective at preventing "last stands" and "blazes of glory", and high profile signatories have routinely resorted to banned practices such as torture. Misunderstandings of the conventions and their purpose have led policy makers and the public to demand treatment for detainees, regardless of their legal status - a development that has certainly undermined the conventions' legitimacy and efficacy. In addition, a reading of the Third Geneva Convention reveals requirements that betray the obsolescence of the specific text - for example, Article 60 outlines the requirement to provide monthly advances in pay to prisoners of war, to include eight Swiss francs (about $8.50) per month to prisoners below the rank of sergeant.
Identifying Uniforms and Signage: The Third Geneva Convention outlines requirements to be considered a lawful combatant. These requirements include, but aren't limited to: being a member of the armed forces or militia of a recognized state, or being a member of a resistance movement; being commanded by a person responsible for his subordinates; having a fixed distinctive sign recognizable at a distance (with limited exceptions); carrying arms openly; and conducting their operations in accordance with the laws and customs of war. In fact, many combatants ignore these requirements altogether. Terrorist groups and "resistance movements" commonly operate without any ties to recognized states, without any accountability to a senior leader or international monitors, without fixed distinctive signs or uniforms denoting their status as combatants, without carrying arms openly, and without obeying the laws and customs of war. Far from preventing combatants from disobeying the conventions, international misunderstanding ends in the practical result of detained unlawful combatants being provided with conditions commensurate with those provided to legal combatants, thus removing the incentive for marginal combatants to obey the laws and customs of war prescribed above.
Based upon my research and observation over the course of the last several years, the unintended consequences of these international conventions restricting the conduct of warfare have actually made war more violent, less civilized, and more likely to occur. I also believe that many of these restrictions on legitimate combatants have incentivized irregular warfare, guerrilla warfare, and terrorism. When paired with the comparatively overwhelming conventional superiority of Western, Soviet/Russian, and other national armies, the resulting surge in irregular/guerrilla warfare and terrorism during the 20th and early 21st Centuries seems like a foregone conclusion.
I want to make it clear: I'm not advocating torture, or summary executions for prisoners of war, or doing whatever it takes to make war more horrible (although, as The Director points out, there's a case to be made for making warfare horrible, as watering it down tends to make it easier to justify frequent and persistent resorts to force). The point I'm trying to make is that in 2012, warfare is still governed by laws and treaties that were enacted before World War I; or which are based on philosophies that reflect neither history nor contemporary values; or which have failed to achieve their intended goals and, in some cases, have made matters worse. Contemporary international cooperation being what it is, there are no simple answers to the question of how to fix the problems I've outlined. Were I to devote my dissertation research to this topic, I might eventually be comfortable suggesting a way forward.
In the mean time, I think it might be time to leave the postgraduate study room and go attempt some sleep.