I would have hoped that Mr. Mills would have read my post more carefully, but perhaps I should have crafted it more carefully.
The specific issue I attempted to deal with, perhaps inartfully, was simply the one initially raised by Mr. Mills himself:
...the legality of armed uprisings by a section of the population against a legally constituted authority....
[My emphasis.]
My comments were not intended to, nor did they, concern themselves with what is right, just, proper or moral. They were directed at the concept of "legality", which to my mind, although related, is really quite a different thing.
Failure to love one's neighbor as oneself may not be right, indeed it may be unjust, improper and immoral - but it is not illegal, at least not in any jurisdiction I am familiar with. Issues of what is right, just, proper, or moral are the proper domain of philosophers, moralists and theologians. We lawyers are condemned to concern ourselves with the more mundane, but more practical, issues involving "legality" - how, for instance, to put a miscreant in, or to keep a client out of, the slammer; or how to obtain, or avoid, a substantial judgement for, or against, a client. In other words, what will properly invoke the power of the sovereign authority to exercise its power to compel.
Thus to me it seems that, while it is perfectly legitimate and perhaps even fruitful, to debate whether or not rebellion either in general or in the specific is just or moral ( I seem to recollect that theologians have over the centuries been much concerned with this issue, even in the case of an admittedly unjust and tyranical sovereign), it is tolerably clear to me that it is pointless to debate its "legality" or "illegality"
as such.
To my mind, an "illegal" action is one which would be subjected to sanction by a fair and reasonable application of the rules of the appropriate governing body ; a "legal" action is one which would not.
Obviously an armed rebellion is "illegal" insofar as the laws of the sovereign entity against which it is directed are concerned. If it fails, its perpetrators risk incurring the sanctions that the sovereign's laws provide. But if the revolution prevails, any issue of its "legality" simply vanishes, for it is clearly ludicrous to suppose that the victorious perpetrators would sanction themselves for having succeeded in what they set out to do; and the deposed sovereign (even he escapes with his head) is lacking a tribunal to test or the power to sanction any "illegality". The issue is clearly moot.
It does not, however, follow as Mr. Mills would have it, that if
...a group of insurgents succeed in overthrowing an established authority, and removing its power to enforce laws against them, then any acts committed by them in the act of overthrow, or thereafter, are ipso facto legal.
Any sort of war-crime or crime against humanity could therefore be considered legal on the above basis. All that is necessary is for the entity that committed those crimes to remain in power, so that laws cannot be enforced against it.
Mr. Mills simply fails to distinguish between the act of insurgency itself, and the specific
means which insurgents may employ in the course of achieving their success.
For example, an action such as murder, rape, pillage and plunder is today generally recognized throughout the civilized world (and in much of the uncivilized) as
malum in se (evil in itself) and subject to sanction wherever proper jurisdiction may be found. I believe the same has now, but more recently, become the case with war crimes and crimes against humanity. However, no such universal consensus as to rebellion exists today (although it may have during certain periods in the past), and it accordingly falls into the category of
malum prohibitum (evil by prohibition) and is generally only subject to sanction by the government toward which it was directed.
It may, of course, well be that the successful insurgents may be unwilling to prosecute one of their members for crimes committed during the course of the insurgency, but that does not mean that the distinction is without a difference. If the perpetrator or the crime has a sufficient jurisdictional nexus with another state, he may be subject to prosecution and sanction by that other state.
For example, a Chechen insurgent has not, simply because of his insurgency, violated any US law and has not as such done anything "illegal" in the eyes of the US. However, were he to have murdered a US citizen or stolen a US citizen's property in the course of the insurgency he could be tried and sanctioned in the US assuming he were found within the jurisdiction of a US court.
Of course an insurgent who commits a generally recognized crime may, as a practical matter, remain free of sanction by the new government he helped establish if he stays confined to his home land, but should he wish to venture abroad he could find himself the subject of prosecution in another jurisdiction. So in effect he could be indirectly sanctioned by the limitation on his freedom of movement.
I hope this too prolix explanation does more to clarify than to obfuscate.
Regards, Kaschner
