Uniform exceptions and rights violations

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Date: Jan. 2010
From: Social Theory and Practice(Vol. 36, Issue 1)
Publisher: Social Theory and Practice-Florida State University
Document Type: Report
Length: 15,908 words
Lexile Measure: 1620L

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Though the Geneva Conventions and their additional protocols address the proper responsibilities and expectations pertaining to nonuniformed combatants, there is still substantial disagreement on this issue, and rightly so. It is commonly argued that resource disparity or alternative sources of political legitimacy, such as national self-determination or the constitution of a political collective, justify the use of such unconventional warfare. This article contends that nonuniformed combat is impermissible and its practitioners cannot be accorded full combatant rights under the rules of engagement, because of the manner in which this tactic endangers and infringes on the rights of genuine noncombatants.

Despite the disadvantages facing resource-poor groups, there are several arguments against allowing nonuniformed combat (and by proxy, the relevant Geneva Conventions passages):

(1) Nonuniformed combat morally infringes on civilians' rights by forcing them to participate in the fighting and thus unwillingly give up fundamental rights to immunity.

(2) The coercion of civilians exacted by nonuniformed combat differs substantively from conscription, and is not acceptable as a lesser form of conscription.

(3) This form of unofficial conscription fails to meet standards of transparency, one of the requirements of a well-ordered society, because the conscripted civilians are unaware of what has happened to them.

(4) Civilians are also morally prohibited from knowingly consenting to their own unofficial conscription.

(5) The formation of a political entity by the nonuniformed combatants is not in and of itself enough for them to reap the benefits of legitimate statehood. The collective good of behaving like a legitimate political entity does not permit their infringement on individual civilians' rights to refrain from fighting.

Nonuniformed combatants come in several different categories. The primary focus of inquiry here is those who claim the full privileges of uniformed combat--namely, urban and rural guerrilla fighters who are usually but not always nonuniformed (and who often qualify under the Geneva Conventions' First Protocol) and some groups of nonuniformed terrorists (sometimes classified separately as "illegal combatants" because they intentionally attack civilians). Military special forces and spies, who neither expect nor receive treatment as legal combatants, are assumed ineligible for POW protections, and instead rely on whatever deals they can get through ad hoc negotiations and agreements between applicable governments. As a consequence, the moral appropriateness of current legal code has little relevance to these groups.

History of the Military Uniform

Uniforms were not always common, and the practice of national militias wearing coordinated garb in the Western world is not a particularly old one, dating back only to the seventeenth and eighteenth centuries. (1) Successful European generals during this period paid painstaking attention to detail, including recruitment and training. Oliver Cromwell was one of the first to clothe his militia in uniform--its visual symbol buttressed the professionalization of the military and enforcement of discipline. (2) Uniforms represented standardization as well as sovereign control. (3) Even when impractical for movement, combat, or efficiency, such as certain versions of the British "redcoat" or some wildly extravagant and expensive Napoleonic uniforms, (4) those concerns were trumped by the importance of creating cohesion...

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Gale Document Number: GALE|A219893768