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Comment by dmvdoug | Hacker News Reader

What’s interesting to me is that they are using the analogy with the actual red-cross like that automatically makes digital resources with the emblem entitled to protection in the same way that buildings and vehicles are. In other words, they want to suggest this is a simple extension of the meaning agreed to by States Parties to the Geneva Conventions of 1949. But it’s not a simple extension. Like, this is the sort of thing that you would need to include in an Additional Protocol in order for it to be binding, because it seems to me to represent a substantive extension of the original meaning and scope of the emblem affixed in meatspace.

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Sure, crossing the Ts and dotting the Is are the job of diplomats. Hopefully it will happen. That doesn’t mean that a technical proposal must only be allowed once that is all squared away. In fact the existence of a widely deployed technical solution makes it easier to achieve consensus on the protocols.

Of course. I’d go further: it wouldn’t even make sense to try to achieve consensus until you have at least one functional technical solution. I just meant that this seems like the first step in that process. A couple of other comments seem to be suggesting this is a stupid thing because they were taking it as saying, “Problem solved!” This is a first step to open discussion on how IHL needs to be adapted to our present world, not bulletproof technical armor by itself.

Modern states are basically just feudal states with their private extensions, particularly on the international level and over the last 3 decades they chose over and over to let analogies hold from meat space because it maintains or expands their power relative to other elements of society.

The Red cross should not look for specific legislation so that any states that are foolish enough can argue their own assumed rights away and will have to take that risk if they want to take back the right the Red cross is taking by the same analogy.

I’m not sure I understand what you’re saying in that second paragraph. Can you expand a little bit? There is no “legislation” involved here at all. These are treaties. If there’s no treaty agreement, there’s no right period (setting aside customary international humanitarian law, which I think is obviously safe to do here, because, like, none of the elements required for something to be recognized as customary are present here).

A new convention functions as international legislation as far as I am concerned. The US for example did not ratify the newer convention on statelessness.

Take that scenerio with the Red Cross and a new convention to treat government sponsored criminals as not allowed to attack the Red Cross. It is far less risky to act like they already have that protection and every state should punish a State that violates their existing promises under existing convention than to navigate the situation where a superpower does not ratify the new convention and claims retaliations and shaming are technically violations of their sovereignty.

For a state in the current situation to deny such analogies seems paradoxical to me.. The Internet was not the wild west it was supposed to be for everyone when it comes to their own advantage, but still as dangerous as the wild west due in large part to criminals that are connected to sovereign States and largely shielded using rights to war logic.

Oh, I see now. I mean, I don’t disagree that the most aggressive way for the ICRC to handle it would be to claim it as some kind of emerging customary norm rather than trying to whet appetites for a new AP to address it. You can never be sure what the results of treaty negotiations will be. Failure to ratify an AP would be positive evidence that there is no such norm. So why risk it?

The problem is that it’s wildly implausible that there is such an emerging customary norm. And there really is no way to claim with a straight face that this sort of thing falls under the terms of the GCs. And the problem with making aggressive claims about customary norms is that IHL really only does work if people agree to make it work. The worst thing that could happen is to have countries not even pay IHL lip service.

But this all gets to the really, really hard but fundamental question of international law: enforcement. I was piqued by you originally using the term “legislation” just because the way we think about legislation, there is usually an executive to enforce it. That’s part of what makes it “law.” But there is no such thing in international law, and given how overwhelmingly powerful states continue to be, there won’t be in my lifetime. I love the idea of international law, but this is what makes it so slippery and difficult and frustrating.

This certainly would not "automatically make digital resources with the emblem entitled to protection". The criteria for the humanitarian emblem were very specific: a red cross/crescent/lion on a white background. Any other emblem (even a very similar emblem like the red star of David on a white background once used by Israel) doesn't qualify for protection.

But there is a legal mechanism for adding new emblems, which was used to add a "red crystal" in 2005 [1], and I imagine a similar mechanism could be used to add a digital emblem.

1: https://en.wikipedia.org/wiki/Protocol_III

Right, that’s why I said: “This is the sort of thing that you would need to include in an Additional Protocol.”

I think some people were confused why they were calling it an emblem. It’s an analogy to the protective emblems agreed in the GCs and APIII. But analogy alone won’t make this binding, and the ICRC knows that. This “technical solution” isn’t like a solution that solves the problem today. It’s the first step in showing that doing the work of another AP is possible and needed.

It can be an NFT that's technically a red cross/crescent/lion/crystal on a white background, and verifiably endorsed/minted by the Red Cross organization for that specific use. That way the existing treaty applies by extension.

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