David Warren, here, questions whether just war doctrine can survive contact with 'asymmetric warfare' which is itself a form of warfare designed to take advantage of just war doctrine. The essential question, which Warren does not quite frame, is whether the noncombatant immunity doctrine can survive in a world without reciprocity and without reprisal. Increasingly, I think the answer is probably no. More about this later. But I do not think that there will be a jus in bello in the way in which we recognize it today - universal, equally applicable to all parties, the same standards, etc. - in, oh say, a hundred years. Perhaps the words will all still be on paper, but I don't think fighting parties will act that way and the disconnect between the law, the monitor-referees (the ICRC, the media NGOS like HRW, the international tribunals) will simply widen although no one will quite admit it, although maybe by then they will. Two maxims come to mind:
First, reward behavior and you will get more of it.
The way Israel is now fighting -- and the U.S. and allies are fighting in Iraq and Afghanistan -- must be reconsidered. The enemy is himself quite indifferent to civilian suffering, as he shows by using his own people as pawns. He consciously uses our own, Western, moral reticence against us.
By openly stating that we will, under no circumstances, attack targets where civilians are present, we "hand the foe a blueprint of our acts, incite him to step over our carefully drawn line, encourage his vice and incur our own defeat." (I am quoting a priest who has considered the broader implications of the Catholic just war doctrine.)
Even "just war" acknowledges that, as in medicine, real mercy can sometimes require ruthlessness. We have forgotten this in the West. If we want to save civilians, over the longer run, we must resolve to call the enemy's bluff. Show him by our actions that hiding behind baby carriages will not save him. For the enemy will only stop using "human shields" when they cease to serve his purposes.
More on this later. But I must say that the NGOs, the UN claptrap officialdom, the ICRC, have frankly been unwilling even to discuss the possibilities that this raises, preferring to fall back on an increasingly disconnected positive law. What does it mean when the law is positive in its application only for one side?
(Update, Cathy Young raises some of the same questions, here.)