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Notes -
Under traditional international law, it's illegal to engage in "classic guerrilla warfare" if by that you mean "not wearing uniforms" or "wearing the uniforms of the enemy," which are both traditional guerrilla war tactics. (The latter was a big sticking point during the US Civil War, as Confederates would sometimes wear captured uniforms.)
I'd need to dig more into how this applies in the Israel/Palestine conflict (especially given Palestine's ambiguous status), but the whole "not wearing uniforms" was something which lots of combatants in the GWOT did. There's a reason that, AFAIK, none of the people who were getting waterboarded were surrendered Iraqi POWs was because the people who were getting waterboarded weren't part of a traditional lawful combatant and thus arguably not protected by the laws of war – my understanding is that that was the logic used by the GWB administration.
I'm not saying waterboarding was the correct decision, but there was a legal reasoning behind the decisions the Bush administration made. They didn't just decide "well we don't have to obey the law because our enemies are evil."
NB, there's provisions in the Geneva Convention, IIRC, for spontaneous resistance to an occupying force.
Technically the rule doesn’t say uniforms, does it? It says ‘recognizable emblem’.
I believe something like a green cloth armband fits the standard, for pseudo-militaries that can't do better
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Yes, I believe that's the case in modern international law.
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This was notably the case in the Winter War in 1939 when Finland was so poorly resourced that many soldiers couldn't be equipped with proper uniforms. They used their own clothes and were only provided with a belt and a hat with the official emblem sewn on.
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Right, that provision provides as follows:
ART. 4. — A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
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6) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Hamas and Hezbollah emphatically do not qualify under this paragraph, as they are pre-existing organizations which do organize themselves into regular units, e.g. Hamas's "Qassam Brigades" and Hezbollah's various specialized units such as the "Radwan Force," yet still engage in combat without uniforms or otherwise making themselves distinct from civilians, among other violations. Also, they aren't spontaneously taking up arms because they're drawing from long-established and disguised central arms depots, in a conflict they started.
Yeah, it seems like the clear implication here is that such forces are supposed to convert themselves into regular armed units in a timely manner. So in the GWOT context, it seems very clear that insurgents operating 5 years into the war, dressing like civilians, hiding their weapons, and not conducting themselves as a "regular armed unit" aren't conducting themselves as expected by the laws of war.
And from the context of Hamas and Hezbollah, it seems to me that (for the reasons you describe) there's no excuse for their forces not to conduct themselves as regular armed units (to whatever extent that they do so) except that it's inexpedient for them, which isn't a justification under the laws of war.
(I should note that I'm not necessarily claiming the Geneva Convention is 100% aligned with morality – there might be instances were guerrilla warfare, like spying, is morally acceptable. But if you're a spy, and you get caught, and executed, you can't very well complain about it – you knew the risks when you signed up. I'm hardly a fan of Hamas or Hezbollah, but my fact claims about the customs of war are just that.)
Right; the Geneva Conventions aren't meant to turn men into angels. They're supposed to be clear rules of the road so that everyone knows what to expect if they behave in a particular way. If people elect not to behave in the specified ways, they don't get the benefit of those clear rules. It's really simple at root.
Remember also that the Geneva Conventions are from a time when war was still something peer nations did.
The world has changed, as has the ways wars are fought- Hamas operates the way it does to exploit the fact that everyone else in the West adheres to obsolete and incorrect ideas of what modern warfare is and are very uncomfortable with reality (example: are women who make weapons for men legitimate military targets?).
Ironically Hamas has done what liberal Westerners only ever dreamed of- they made the average Palestinian women just as capable a fighter as the average Palestinian man (with respect to how their enemy limits itself).
I dunno. Some of the international customs, though, for instance around executing people out of uniform, not conducting false surrenders (and respecting noncombatant status of POWs) predates the Geneva Conventions considerably. The Civil War, for instance, is full of screeching about international law – the North threatened to hang Southern privateers as pirates, for instance, under the logic that the Confederacy wasn't a real state. And guerrilla combat was part of the Civil War (and many wars before that).
Even during the Second World War – which was the birth of the modern Conventions – partisans and guerrilla fighters were very commonplace. So while I agree that the world has changed – it might not be the world the Conventions anticipated – a lot of these problems are very old and in fact predate modern international laws.
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